(273 S.W.) "The court further instructs the jury that, if you find that the defendant carried concealed upon or about his person a deadly and dangerous weapon, then you will find him guilty, notwithstanding that you may find and believe that the said weapon was the property of some other person." reasonable doubt that defendant carried the [ would be guilty of carrying a concealed weapon. revolver concealed upon or about his person, it should acquit, This was a sufficient converse instruction. The instruction upon circumstantial evidence requested by defendant merely dealt with the effect the jury should give to the circumstantial evidence necessarily considered in determining guilt or innocence under defendant's instruction No. 4 and the other instructions, and the instruction asked was properly refused. Instruction No. 4, asked by defendant and refused by the court, is in the same form as one given for defendant, after modification, in State v. Howell, 117 Mo. 307, 326, 344, 23 S. W. 263. This court there simply held that the trial court did not err in modifying the instruction requested. It did not hold that the court would have committed error if it had not given an instruction on circumstantial evidence in that particular form. But defendant contends that instruction No. 3, given by the court, did not properly declare the law upon circumstantial evidence, and relies upon State v. Garrett, 276 Mo. 302, loc. cit. 310, 207 S. W. 784. The instruction in that case was held to be free from the vice of permitting the jury to pile inference upon inference. Defendant there contended that the instruction authorized the jury to draw inferences from certain proven facts and circumstances and from the inference thus drawn to infer guilt. The instruction here criticized does not contain the language which gave rise to the attack upon the instruction in the Garrett Case. [6, 7] (c) Instruction No. 2, given for the state, is assailed. It reads as follows: "The court further instructs the jury that, in order to warrant a conviction, it is not necessary for the state to prove that the defendant carried a loaded pistol concealed upon his person, but that it is sufficient to show that he carried it concealed about his person. To be carried about his person, it must appear that it was so placed as to be within his easy reach and convenient control, and, in order to be concealed, it must have been so placed as to escape the ordinary observation of persons coming near enough to defendant to see the weapon if carried openly; in other words, if it were so placed that it would require a search to see it then it would be concealed. "Whether the defendant carried a weapon upon or about his person, and whether it was concealed, are questions for you to determine from all the facts and circumstances shown in evidence. "If, therefore, you find that the defendant, either before entering the automobile and while crossing Cass avenue, carried a loaded pistol concealed upon his person, or if after entering the automobile he carried it concealed upon his person, or carried it by placing it upon the front seat or upon the floor of the automobile in a position within easy and convenient reach to him, but so placed as to be concealed from view, in the sense of the word 'concealed' as hereinbefore explained, then the defendant In his motion for new trial defendant made the following assignment of error as to said instruction No. 2: "Because instruction No. 2 misdirects the jury as to material matters of law necessary for their information, misstates the law and assumes the existence of facts not in evidence, and further instructs the jury that they may find defendant guilty of carrying a loaded pistol or revolver concealed upon his person before entering the automobile mentioned in evidence and while crossing Cass avenue, whereas, there is absolutely no evidence upon which to base such instruction." We must here confine defendant to the criticism of said instruction called to the attention of the trial court in said motion for new trial. It appears that the specific objection then made was that there was no evidence that defendant carried a loaded pistol or revolver concealed upon his person before entering the automobile and while crossing Cass avenue. The facts that defendant and the other men were seen holding their pockets as they hurried down the steps and crossed the street to the automobile, in connection with the evidence tending to show that defendant and said other men were seen to make motions as if taking something out of their pockets, and the finding of loaded revolvers hidden from view and within easy reach of defendant, tended to show that defendant was carrying such weap- [8] In addition to the foregoing, defendant here contends that the trial court erred in permitting the jury to find defendant guilty if he carried the deadly weapon concealed upon his person, whereas the indictment charged him with carrying it concealed about his person. Had the indictment charged defendant with carrying the weapon concealed upon his person, and had the instruction authorized conviction if defendant carried it about his person, there might be some reason more. STEVENS et al. v. STEVENS et al. (No. 26154.) vens, had acquired the two properties involved in this action, one a business block, subject to a deed of trust for $3,000, and (Supreme Court of Missouri, Division No. 2. the other the property where they lived, sub June 5, 1925.) 1. Estoppel 71-Act of deceased, as administrator of his wife's estate, held recognition of wife's title in land, and solemn disclaimer of title on his part. Act of deceased as administrator of his wife's estate, in inventorying under oath certain lots as property of his intestate wife's estate, held recognition of her title in land, and a solemn disclaimer of title on his part. 2. Pleading 21-Averment in amended tion held inconsistent with claim deed absolute on face was in fact mortgage. Averment in amended petition that S. promised to hold title to land for another held inconsistent with claim that deed absolute on its face was in fact a mortgage. ject to a deed of trust for $1,500. On March 26, 1906, Stevens and his wife conveyed these properties by a warranty deed for the recited consideration of $5, which was not paid, to James W. Peeler, and on April 2, 1906, Peeler and his wife conveyed them in fee to Emma Stevens for the recited consideration of $5, which was not paid. Stevens continued to live in the residence property until the death of Emma Stevens, Oc peti-tober 12, 1913, and until his death in 1923, during which time he collected the rents of the other property, kept both in repair, and paid all general and special taxes. He administered upon the estate of his deceased wife and inventoried these properties as belonging to her estate. In the year 1916, he married the plaintiff Mary A. Stevens, and died intestate in 1923. His daughter, Helen K. Stevens, and the three minor children of his son, Edwin M. Stevens, deceased, are the defendants in this action. He left surviving him his widow, Mary A. Stevens, and one son, Ronald F. Stevens, a minor, by his seeond marriage. They are the plaintiffs. 3. Trusts 86-Husband's conveyance to wife raises prima facie presumption of intent to convey as provision or settlement for wife. Husband's conveyance of real property to wife raises prima facie presumption that husband intended conveyances as provision or set tlement for his wife, and a trust will not result. 4. Trusts 82 Husband's conveyance to wife, through intermediary, held gift or settlement, and without resultant trust in his favor. A husband's conveyance to his wife through an intermediary held a gift or settlement, with out resultant trust in his favor. 5. Trusts 89(3)—Evidence held to show husband intended his conveyance to his wife through intermediary as provision or settlement for her. Evidence held to show that a husband in tended his conveyance of realty to his wife through an intermediary as a provision or settlement for her, and that such conveyance was not made to secure a loan of money by wife to husband. The amended petition alleges that said deeds were made for prudential reasons, and not for the purpose of divesting title out of said Ronald F. Stevens; that it was understood that Emma Stevens was to hold the title in her name in secret trust for said Ronald F. Stevens; that she so received and treated said property during her life; that Ronald F. Stevens continued in possession thereof, collected the rents and income therefrom, paid the taxes and upkeep out of his sole and separate funds, and exercised absolute dominion over the same; that at the time of making said deeds said Ronald F. Stevens had been dissipating for a period of several weeks, and was in a weakened con Appeal from Circuit Court, St. Louis Coun- dition, and had been squandering his propty; John W. McElhinney, Judge. Suit by Mary A. Stevens, individually and as next friend, guardian, and curator of Ronald F. Stevens, against Helen K. Stevens and others. Judgment for defendants, and plaintiff's appeal. Affirmed. Joseph C. McAtee and Henry Higginboth HIGBEE, C. This is an action to declare a deed, absolute on its face, a mortgage, and for partition. Plaintiffs appeal from a judgment in favor of the defendants. Ronald F. Stevens, by the thrift and industry of himself and his wife, Emma Ste erty while in said condition, and was importuned and persuaded by said Emma Stevens to deed said property to her, and that she then promised to hold said property for plaintiff's husband so that she and plaintiff's husband and the members of their family would have a home and an income during the life of said Emma Stevens and said Ronald F. Stevens, and to prevent further squandering and loss of said property, including the land herein described; that said Ronald F. Stevens had implicit confidence in said Emma Stevens, and relied upon her promise, and so relying did execute said deed, all of which said Emma Stevens well knew; that shortly prior to the time of said conveyances, said Ronald F. Stevens owed $300, which he was required to pay, and said Emma Stevens advanced said sum, which (273 S.W.) Ronald F. Stevens was obliged to repay to her, and, as security for said sum, conveyed said land to her by and through said conveyances; that the securing said indebtedness was a part of the inducement and consideration for making said conveyances, which, although absolute in form and terms, were in fact and should be treated as an equitable mortgage; that part, if not all, of said indebtedness has been paid, and plaintiffs ask the court to take an accounting, and they offer to pay any sum that may be found due and unpaid on said mortgage indebtedness, and further, in all things offer to do equity in the premises; that in equity and in good conscience the defendants should be held and declared trustees of these plaintiffs to the extent of all lawful claims in and to the same. she subsequently repaid by paying $80 in money, and he took the remainder in rent at $40 per month. James W. Peeler testified he knew Ronald F. and Emma Stevens. Stevens was in the bakery business, and his wife assisted him; they lived in two rooms back of the bakery. Stevens then bought a lot and erected a building containing two storerooms and two flats. He thought this property cost Stevens $7,000 or $8,000; the other property about $4,000. That in 1906 Stevens got to dissipating, and would stay away from his family for weeks at a time. Finally a policeman found Stevens badly intoxicated and took him home. Witness suggested to Stevens that he make the deeds, and Stevens and his wife accordingly executed their deed to Peeler, and the next day Peeler and his They further state that said property was wife executed their deed to Mrs. Stevens. the sole estate of said Ronald F. Stevens, The deeds were sent to Clayton to be reexcepting a small amount of personal prop-corded. Witness had previously suggested erty which has been consumed by the allow- to Mrs. Stevens to have the title put in her ance of $1,200 in lieu of provisions to plaintiff for a year's support, and by the allowance of $400 as dower in said personal property; that plaintiffs are without adequate remedy at law, and they pray judgment divesting title out of defendants and vesting the same in Ronald F. Stevens, a minor, and in defendants in accordance with their respective rights, and that the same be declared subject to the dower and homestead rights of Mary A. Stevens, etc. Then follows a count in partition, declaring that Mary A. Stevens is the widow of Ronald F. Stevens, deceased; that she is entitled to dower and homestead in said premises; that she is the duly appointed and qualified guardian and curator of Ronald F. Stevens, a minor, etc. The answer admits the conveyances as pleaded, the death of Emma Stevens, the re lationship of the parties plaintiff and defend ant, but denies all other allegations. The name; that "Steve" had been dissipating, and the way he was spending his money he would not have anything left for his wife and children, and witness asked him to make the deed for their sakes in order that they might have a home the balance of their days, and to protect them as long as they lived. Mrs. Stevens thanked him, and said that was all right. A few days afterwards the deeds were signed. Stevens had been dissipating for six months; he had contracted debts to the amount of $1,500 during that time. These two properties were all he had. Mrs. Mary A. Stevens, the second wife, and mother of Ronald F. Stevens, Jr., testified they had been living in the residence property 8 years and 3 months at the time of Stevens' death, April 19, 1923; that they were married June 27, 1916; that Helen her to sign some of his notes; that he statStevens lived with them; that Stevens asked answer pleads the 10-year statute of limi-ed, in the presence of Helen, in an adjoining room from where he was seated, with the door open: tations, and that Ronald F. Stevens administered upon the estate of Emma Stevens, deceased, and inventoried all the real estate described in the petition as the property of Emma Stevens at the time of her death, and that he made affidavit and swore to the truth thereof, and that he failed to make any claim for the restitution of said real estate in the probate court, and is forever barred from asserting any title or interest therein. The reply is a general denial. "This is to your benefit; some day I am going to change this property back in my name, so that you may get a benefit out of it." This was excluded by the court, to which ruling plaintiffs excepted. That when she objected to signing the note he said he was going to turn the property back in his name for her benefit; this was in 1920, when she signed one of the notes. John Tate testified that shortly before the On cross-examination witness stated it 1906 transfers were made, Mrs. Emma Ste- was a year after their marriage when her vens came to him and said she had to have husband told her the title was in Helen and $300 for her husband; that he had signed Edwin's names, and that he intended to a name to a check without authority, and change it back to the way it was when he was in danger of prosecution, and she was first started out, because he had a son, the going to raise the money for him, and he baby, that he wanted to look out for; and was going to put the property in her name that he did not advise her before their marto protect her. Tate loaned her $200, which | riage of the record condition of the title, but left her under the impression that it was his property until he started a bus for his son, Edwin, in 1917. Henry C. Kirchner, circuit clerk, formerly secretary of the St. Louis County Land Title Company, testified for the defendants: "I have known Ronald F. Stevens since 1901; was his close friend, and had several conversations with him in regard to this property. He telephoned me the day before he went to the hospital to come to his house. He asked me to explain to Mrs. Stevens the exact status his affairs were in so that in the event his trip to the hospital would be fatal she would be acquainted beforehand, and I explained for Mrs. Stevens and repeated it for Helen's benefit, and I told her the title, since the death of the first Mrs. Stevens, vested in Helen and Edwin, and, after the death of his first wife, her husband had merely a curtesy interest and the enjoyment of the property for life, and in the event he died he had no power to direct its disposition. He asked me to try to advise the different members of his family, if it were possible and consistent to do that to keep them from fighting about it; that he did not want any trouble; that he had taken an insurance policy in her favor in order to try to equalize matters. I believe the insurance was $3,000; that, with his automobile and bank stock, would about equalize all interests." On cross-examination, witness valued the two properties, one at $7,500, the other at $18,000; the rental value of the first would be about $60 per month. Helen K. Stevens testified she was 27 years old; that in April, 1918, her father said: "You know you are one half owner of the property, and Edwin owns the other half." Her father died April 18, 1923, and she continued to live there until in November, and paid her board. She knew of special improvements and special tax bills for sewering, curbing, and guttering made after 1913. Mrs. Mary A. Stevens, in rebuttal, testified that her husband did not tell her he did not own the house he lived in, but that Edwin Stevens had made that statement, and that his father was not present at the time. 1. Plaintiffs' witness, James W. Peeler, testified that he told Mrs. Emma Stevens her husband was dissipating, and the way he was spending his money he would have nothing left for her and their children, and that he suggested to Mrs. Stevens that the title be put in her name, and asked Stevens to do so for their sakes that they might have a home the balance of their days to protect them as long as they lived. Mrs. Stevens told Tate that Stevens had forged a check and was in danger of prosecution; that she would raise the money and pay it, and that Stevens was going to put the property in her name to protect her. Peeler testified further, that a few days after the conversation mentioned, the deeds were executed and mailed to Clayton, the county seat, to be that Stevens was going to put the property in her name to protect her that it is insisted by appellants that the deed to her should be construed as a mortgage to secure the repayment of the $300 paid by Mrs. Stevens on account of the forged check. record, when fairly construed, that at the time the deeds were made Stevens and his wife understood that he owed her the money so paid, or that they recognized it as a subsisting debt, or that they or either of them ever at any time considered or understood taken as security for the repayment of the that the deed to Mrs. Stevens was given or $300 so paid by Mrs. Stevens. The clear understanding, as it appears from Peeler's testimony, is that the deeds were executed to prevent Stevens squandering his property and to preserve it for the benefit of his wife and children. It is apparent that this is what Mrs. Stevens meant when she told Tate that Stevens was going to put the title in her name to protect her. The conversation with Tate was after Peeler had made the suggestion to Mrs. Stevens. There is not a word of evidence in the that Stevens understood that the deeds were [1] It is vital to appellants' contention executed to secure the payment of the $300 to Mrs. Stevens. If this was his understand ing, and the debt was unpaid at the time of Mrs. Stevens' death, then it was plainly his duty, as administrator of her estate, to have inventoried this secured debt as a part of the assets of her estate; if it had been paid, the security was discharged, and there was no debt to inventory. But Stevens not only did not inventory the debt but, with a full understanding of the transaction, solemnly, under his official oath, inventoried these lots as the property of his intestate's estate. This was, prima facie, a clear and unequivocal recognition of her title, and a solemn disclaimer of title on his part. Moreover, the plaintiff Mrs. Mary A. Stevens testified that, a year after their marriage, Stevens told her the title was in his two children, Helen and Edwin. And the day before Stevens went to the hospital (where he died) he had his close friend, Mr. Kirchner, explain to Mrs. Stevens that the title was and had been in Helen and Edwin ever since the death of their mother, and that he had no power to direct its disposition. At that time Stevens explained to Mrs. Stevens that his life insurance, bank stock, and automobile would about equalize all interests. This evidence stands uncontradicted. There is not a shred of testimony in the record to support the contention that it was the mutual understanding that the deed was executed for the purpose of securing the payment of a debt. [2] 2. The contention that the deed was taken as a mortgage is inconsistent with (273 S.W.) Mrs. Stevens "promised to hold the title to said property for plaintiff's husband so that she and plaintiff's husband and the mem ́bers of their family would have a home and an income during the life of said Emma Stevens and said Ronald Stevens, and to prevent a further squandering and loss of said property." [3-5] 3. Neither is there any evidence tending to establish the contention that Mrs. Emma Stevens, by fraud or undue influence, procured the execution of the deed conveying the property to her in fee. On the contrary, plaintiffs' witness Peeler testified that he suggested to Stevens and his wife that the property should be deeded to Mrs. Stevens, and it appears they both fell in with the suggestion, and the deeds were made, transferring the title, through Peeler as a conduit, to Mrs. Stevens. This constituted a clear gift or settlement and no trust resulted in favor of the grantor. McGehee v. Garringer, 284 Mo. 465, 224 S. W. 828, 831 (3). When, as here, the husband conveys or causes real property to be conveyed to his wife, prima facie, it is presumed that he intended the conveyance as a provision or settlement for his wife, and a trust will not result. Bender v. Bender, 281 Mo. 473, 478, 220 S. W. 929; Wilhite v. Wilhite, 284 Mo. 387, 396, 224 S. W. 448; Gilliland v. Gilliland, 96 Mo. 522, 525, 10 S. W. 139; Curd v. Brown, 148 Mo. 82, 92, 49 S. W. 990; 1 Perry on Trusts, § 143; 21 Cyc. 1255. That this was the grantor's purpose and intention need not rest upon a mere presumption; it is clearly established by all the evidence. The judgment is affirmed. RAILEY, C., not sitting. PER CURIAM. The foregoing opinion of 2. STATE v. WILLIAMS. (No. 26118.) (Supreme Court of Missouri, Division No. June 5, 1925. Rehearing Denied July 2, 1925.) 101-Evidence of setting up gaming device held sufficient. 1. Gaming Evidence on prosecution, under Rev. St. 1919, § 3537, for setting up gaming device. and inducing, enticing, or permitting persons to bet or play thereat, held sufficient to go to jury. 2. Gaming 79(1)-Certain matters held not required to be proved to convict of setting up gaming device. To convict, under Rev. St. 1919, § 3537, of setting up gaming device, and inducing persons to bet or play thereat, defendant need not be shown to be proprietor of the table or the room, or to have played any of the games, or 3. Criminal law Verdict approved by trial court, assessing maximum penalty for setting up gaming device, cannot be considered the result of bias and prejudice, or disturbed on appeal; the evidence showing flagrant violation of statute, and trial having been fair. 4. Criminal law 1064(4)-Admission of evidence, not complained of in motion for new trial, not available on appeal. Assignment of error, based on admission of testimony, cannot be considered on appeal; admission of evidence not having been complained of in motion for new trial. 5. Criminal law 7552-Instruction commenting on evidence properly refused. Instruction constituting comment on the evidence is properly refused. 6. Criminal law 1177-Defendant not harmed by steps as to sentence and allocution. Though, under Rev. St. 1919, §§ 4057, 4058, allocution before sentence is not necessary where defendant has previously been heard on motion for new trial, defendant was not harmed by setting aside sentence on his excepting thereto because of allocution not having been granted, then granting allocution, and thereafter against pronouncing the sentence. Appeal from Circuit Court, Linn County; J. E. Montgomery, Judge. Luther Williams was convicted of setting up and keeping a crap table, and appeals. Affirmed. J. H. Taylor, of Chillicothe, and C. B. Burns, of Brookfield, for appellant. Robert W. Otto, Atty. Gen., and James A. Potter, Sp. Asst. Atty. Gen., for the State. HIGBEE, C. The information, based on section 3537, R. S. 1919, in substance, charges that the defendant on or about February 2, 1924, feloniously set up and kept a crap table on which dice were thrown and used; that said table was adapted, devised, and used for the purpose of playing games of chance for money and property; and that the defendant did then and there entice and permit persons, whose names are unknown to the prosecuting attorney, to bet and play at and upon and by means of said gaming table and gambling device, against the peace and dignity of the state. On a trial to a jury the defendant was found guilty and his punishment assessed at imprisonment in the peni tentiary for five years A motion for new For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |