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FRAUDULENT SALE-KNOWLEDGE OF PURCHASERINADEQUACY OF CONSIDERATION-IRRESPONSIVE ANSWER-CONCLUSIONS OF LAW AND FACT.

1. Facts and circumstances which would naturally put a person of ordinary caution on such inquiry, before purchasing property, as would reasonably lead to knowledge that the vendor was attempting to dispose of it in fraud of his creditors, are evidence from which that knowledge may be found.

2. A debtor in failing circumstances may dispose of his property in good faith, in order to obtain money to meet his obligations, though such sale may in fact hinder and delay his cred

itors.

3. An improper answer of a witness, which is irresponsive to the question, will not be ground for reversal, unless the party claiming to be prejudiced thereby moved to have it stricken out or disregarded.

4. A statement by the court, in one of its conclusions of fact, that the sum paid for a stock of goods "was an inadequate consideration," is not equivalent to a finding that the sale was fraudulent.

5. The findings of the court, if supported by substantial evidence, are as conclusive upon appeal as the verdict of a jury would be under the same evidence.

estate of his wife, valued at $9,000. He also owed him about $500, which was unsecured. Relators lived in La Cygne, Kan. On said day, said Swartz sold his stock of goods to relators for $3,000, which was paid by draft, of which $2,900 was paid to Cunningham on his claims, and $100 was paid to his attorney. The goods were at once delivered to relators. The entire transaction was concluded that morning before breakfast. In about two hours after the transfer, two of Swartz's mercantile creditors commenced suits by attachment against him. Writs were issued, and the goods were levied upon by defendant Purcell, who was then sheriff. Afterwards, under an order of court, the goods were sold by the sheriff at auction, and brought $3,600. The court found "that said sale on the part of Swartz was made to defeat and defraud a part of his creditors, and that said Friedman knew the purpose of said sale when he made the draft on the National Bank of Kansas City and delivered it to Swartz." The eighth finding was as follows: "The court finds from all the facts and circumstances that relators had actual notice, before the purchase of said stock, of a fraudulent intent on the part of Simon Swartz in disposing of the same." The court also found the value of the

Appeal from circuit court, Jasper county; goods at the time of the transfer to be $3,600, W. M. Robinson, Judge.

Action on the relation of A. Friedman and another against James Purcell, as sheriff, and the sureties on his official bond. From a judgment for defendants, plaintiffs appeal. Affirmed.

C. H. Montgomery and J. D. Snoddy, for appellants. J. D. Perkins and Thomas & Hackney, for respondents.

MACFARLANE, J. This suit is upon the official bond of defendant Purcell, as sheriff, to recover damages for the alleged wrongful seizure and sale of a stock of dry goods claimed by relators, and taken from their possession, in Joplin, Mo. Defendants, by answer, justified the seizure on the ground that the goods were levied upon by Purcell, as sheriff, by virtue of two writs of attachment issued against one Simon Swartz; and that the said Swartz had previously, with intent to hinder, delay, and defraud his creditors, sold and transferred them to relators, who at the time had notice of such intent. The case was tried without a jury. At request of relators, the court stated in writing its conclusions of fact. These conclusions are stated at length and in detail.

For a sufficient understanding of the case, the facts will be briefly stated: On the 14th of December, 1892, Simon Swartz was, and for some years had been, a merchant in Joplin, and had on hand a stock of dry goods. He was at the time largely indebted, and some of his mercantile creditors were then pressing him for payment. He owed T. W. Cunningham, a banker at Joplin, about $2,400, which was secured by mortgage on real

and that the price paid for them by relators was inadequate. The general finding was for defendants, and, from a judgment thereon, plaintiffs appealed.

1. The court found from the evidence that the sale of the goods was made by Swartz with the fraudulent intent of hindering and delaying his creditors, and that appellants knew of such intent when they purchased

Relators asked the court to declare, as a legal conclusion, that they were not "chargeable with notice of any fraudulent purpose on the part of Swartz, merely because A. Friedman failed to avail himself of an opportunity of making investigations which, if made, would have revealed some fraudulent purpose, if any such purpose existed." This declaration of law the court refused. While it may not be required of a purchaser of goods, in the usual course of business, to inquire into the motives of the seller, yet he cannot be allowed to shut his eyes to facts and circumstances which indicate a fraudulent motive. He is bound to draw correct inferences from facts and circumstances of which he has knowledge, and which are consistent only with a fraudulent intent. The evidence in this case requires the application of no broader rule. But the declaration, as an abstract proposition of law, is not correct. The rule is that "facts and circumstances which would naturally put a person of ordinary caution on an inquiry reasonably leading to knowledge of the truth are evidence from which that knowledge may be found." Barrett v. Davis, 104 Mo. 549, 16 S. W. 377. We find no error in refusing this declaration. 2. Relators complain of the refusal of the

court to give the second declaration of law. This declaration broadly asserts the proposition that, if Swartz intended to apply all the proceeds of the sale to the payment of his valid indebtedness, then there could be no fraudulent purpose or intent in making the sale. There is no doubt that a debtor in failing circumstances has the right to dispose of his property in order to obtain money for the purpose of paying his debts. This is so though the sale may in fact hinder and delay his creditors. But this right has coupled with it the condition that the sale is made with an honest purpose. Daugherty v. Cooper, 77 Mo. 531, and cases cited. The intention of the seller gives character to the transaction under the statute. Rev. St. 1889, § 5170. veyance may be for an adequate consideration, and yet fraudulent as to creditors. Johnson v. Sullivan, 23 Mo. 482; Murray v. Cason, 15 Mo. 379. There was no error in re

fusing this instruction.

3. Appellants assign as error the admission of the invoice of the goods made by the sheriff, as evidence of their value. The record shows that the witness was asked what amount was shown by the inventory. To this objection was made. By the Court: "I don't care what the inventory was, but, if he knows, he can tell, after taking the inventory, what the value of the stock was." To this, counsel for plaintiffs objected and excepted. Witness: "I believe I have the inventory here in the desk. My recollection is it was over $7,000." No further objection was made. It will be seen from what was done and said that the inventory was not admitted as evidence at all. The court directed the witness to give his opinion as to the value of the goods as ascertained in making the inventory. The views expressed by the court in passing upon the objection show that the inventory was not taken as evidence of the value of the goods. The improper answer of the witness could not have influenced the court in its finding. But, in any event, the answer of the witness was voluntary; and, if plaintiffs feared its effect on the finding, they should have moved to have it stricken out or disregarded. The court found the value of the goods when attached to be $3,600, the amount for which they were sold at auction by the sheriff. Plaintiff bought the goods for $3,000, and admitted to the sheriff that he only paid 60 per cent. of their estimated value. Plaintiff himself testified on the trial that the goods were easily worth $3,500 or $3,600, and that he intended to pay not exceeding 50 per cent. of their value. In his petition he claimed the value of the goods to have been $5,000. It is difficult to perceive wherein plaintiffs could have been prejudiced even had the invoice been admitted in evidence. The value found by the court was within the lowest estimate placed upon the goods by plaintiff himself. 4. The court stated, in one of its conclusions of fact, that the sum of $3,000 paid by relators to Swartz "was an inadequate consideration

| for said stock of goods." for said stock of goods." This, it is claimed, was a virtual declaration of law that the sale was fraudulent because of inadequacy of consideration. We do not think the statement can be regarded in such a light. The judge, in his finding of fact, did not confine himself to mere general conclusions, but found specifically many of the various facts which may be regarded, separately, as mere badges of fraud, and from which the general conclusion was drawn. This criticised conclusion was one of them. It was therefore intended by the judge to state a fact, and not a conclusion of law. Nor do we think the language used implies more. The word "inadequacy," as used, does not imply that the sale was fraudulent. The broadest legal implication that can be drawn from it is that the inadequacy of consideration was a badge of fraud. "Inadequate price" is defined to be "a term applied to indicate a want of sufficient consideration for a thing sold, or such a price as, under ordinary circumstances, would be insufficient." Bouv. Law Dict. In legal contemplation, a sale will not be regarded as fraudulent for the reason alone that the consideration is inadequate. When, therefore, the judge trying this case declares the consideration paid for the goods by relators to have been inadequate, without declaring its legal effect on the sale, we only understand him to state, as a fact, that the amount paid was less than the goods, under ordinary circumstances, were worth. If relators desired the court to state its conclusions of law on any of the facts found, they should have made proper and timely requests.

5. Counsel for relators undertakes to show that the conclusions of fact are not justified under the evidence. An examination of the evidence shows us that it not only tended to prove, but satisfactorily establishes, every fact found. Such findings, if supported by substantial evidence, are as conclusive upon an appellate court as the verdict of a jury would be under the same evidence. The credibility of the witnesses and the weight to be given the circumstances are matters for the determination of the trial court, and will not be reviewed on appeal.

Finding no error, the judgment is affirmed.

ROBINSON, J., not sitting. The other judges concur.

STATE v. WOODWARD.

(Supreme Court of Missouri, Division No. 2. Dec. 3, 1895.)

ROBBERY-INTENT-INSTRUCTION.

An instruction on a trial for robbery which failed to state, as an essential fact to conviction, that defendant must have taken the property with intent to deprive the owner of his property, and to convert it to a use other than that of the owner, without his consent, is erroneous, though it is unnecessary to use the word "felonious," or to define it.

Appeal from criminal court, Jackson county; John W. Wofford, Judge.

Fred Woodward was convicted of robbery, and appeals. Reversed.

Isaac B. Kimbrell, for appellant. R. F. Walker, Atty. Gen., Marcy K. Brown, and Frank G. Johnson, for the State.

GANTT, J. The defendant was indicted at the January term, 1895, of the Jackson county criminal court, jointly with one Mary Dwyer, for robbery in the first degree. He was tried separately, and convicted, and sentenced to five years in the penitentiary. The evidence was amply sufficient to establish his guilt, but he complains of an erroneous instruction, asked by the prosecuting attorney and given by the court, in these words: "The court instructs the jury that, if you find and believe from the evidence that, at Jackson county, Missouri, at any time within three years prior to the filing of the indictment in this case, the defendant, Fred Woodward, either alone or with another, in and upon witness John Powell did make an assault, and any money, of any amount, of any value whatever, of the property of witness John Powell, from the person and against the will of said John Powell, then and there, by force and violence to the person of the said John Powell, did rob, steal, take, and carry away, you will find the defendant guilty as charged in the indictment, and assess his punishment at imprisonment in the penitentiary at not less than five years." The exception to this instruction was well taken. The instruction falls short of an essential element,-that of the felonious intent to deprive the owner of his property, and to convert it to a use other than that of the owner, without his consent, and without any honest claim to it on the part of the taker. Had the instruction contained this necessary formula, it would have been sufficient. It was unnecessary to use the word "felonious," or "feloniously," or to define them. Reg. v. Hemmings, 4 Fost. & F. 50; State v. Brown, 104 Mo. 365, 16 S. W. 406; State v. Moore, 101 Mo. 316, 14 S. W. 182; State v. O'Connor, 105 Mo. 121, 16 S. W. 510; State v. Campbell, 108 Mo. 613, 18 S. W. 1109; State v. Cantlin, 118 Mo. 100, 23 S. W. 1091; Brown v. State, 28 Ark. 126. For this error the judgment must be, and is, reversed, and the cause remanded for a new trial.

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which defendant tore therefrom, was insufficient, in that it did not appear which duebill defendant was accused of altering.

2. The detaching from a duebill of a credit entered thereon, and passing the duebill for the original amount thereof, are not forgery.

Appeal from circuit court, Oregon county; W. N. Evans, Judge.

Fred Millner was convicted of forgery, and appeals. Reversed.

A. H. Waller, for appellant. R. F. Walker, Atty. Gen., and Morton Jourdan, for the State.

BURGESS, J. At the February term, 1895, of the circuit court of Oregon county the defendant was convicted under an indictment for forgery, and his punishment fixed at two years' imprisonment in the penitentiary. From the judgment and sentence he appealed. In the first count of the indictment he is charged with having forged the name of T. J. Boyd & Co. to a duebill for the sum of $2.20, and in the second count with having forged certain other obligations and demands, one of which was for the sum of $2.20, by erasing and detaching therefrom a credit of $1.50, which had been placed thereon by the payors at defendant's request. It appears from the evidence that, during the year 1894, T. J. Boyd & Co. were a milling company, engaged in business in Thayer, Mo.; that it was their custom to issue duebills in payment of labor and wood; that on the 15th day of September they issued a duebill to the defendant for $2.20; that defendant took the duebill to Boyd & Co., and had them indorse a credit on it for $1.50, which was to be paid to a Mr. Stark by Boyd & Co.; that credit of $1.50 was indorsed at the bottom of the duebill as follows: "Received $1.50, mill stuff;" that the duebill was again delivered to the defendant, who took it to a merchant in Thayer, where he presented and sold it, with the credit torn off, for $2.20 trade. The defendant, testifying in his own behalf, stated that the duebill had been issued to him for $2.20, and that he made a request of Boyd & Co. to pay Mr. Stark $1.50, to be, as he understood, charged to him; that he did not see any credit on the duebill when it was taken to and sold to the merchant; that he intended to do Boyd & Co. no wrong, but sold the duebill in good faith. It is conceded by counsel for the state that there was no evidence to support the verdict of the jury under the first count in the indictment, and that, unless the conviction can be sustained under the second count, the judgment should be reversed. The second count charged that defendant "then and there unlawfully, willfully, and feloniously did make and counterfeit divers false, forged, and counterfeit instruments, duebills, and writings purporting to be the act of T. J. Boyd & Co., by which divers pecuniary obligations and demands for the payment of goods, wares, merchandise, rights, and property, and duebills

purporting to be made by T. J. Boyd & Co., by | shall be or purport to be transferred, creatwhich divers pecuniary demands and obligations purported to be credited, one of which said falsely forged and counterfeit instruments, duebills, and writings is of the tenor following, that is to say: 12-13-'94. Due bearer two dollars and twenty cents in Mdse. T. J. Boyd & Co.,'-which duebill aforesaid was then and there presented by the said Fred Millner at the mill of the said T. J. Boyd & Co., and credited thereon at the bottom of said duebill with one dollar and fifty cents, and divers other credits on divers other lost and destroyed duebills aforesaid, to the grand jurors unknown, by the said T. J. Boyd & Co.; and afterwards, to wit, on the 15th day of December, 1894, at the county and state aforesaid, and at divers other times now here to these grand jurors unknown, the said Fred Millner did then and there unlawfully, willfully, fraudulently, and feloniously did alter, forge, and counterfeit said duebills aforesaid, by then and there fraudulently and feloniously tearing, altering, and detaching therefrom the credits theretofore placed by the said T. J. Boyd & Co. aforesaid," etc. The count now under consideration is obnoxious, in that it is uncertain as to which one of the instruments mentioned defendant is intended to be charged with feloniously making, altering, and forging. It is true that it sets out one of the instruments according to its tenor, and then avers: "Which said duebill aforesaid was then presented, * and credited thereon with one dollar and fifty cents, and other credits on divers other lost and destroyed duebills," and then charges defendant with feloniously altering, forging, and counterfeiting "said duebills aforesaid, by then and there fraudulently and feloniously tearing, altering, and detaching therefrom the credits theretofore placed by the said T. J. Boyd & Co."; but it nowhere alleges which particular instrument or duebill was presented and credited with one dollar and fifty cents, which one was lost or destroyed, nor which one was altered by tearing or detaching therefrom any credit placed thereon by said T. J. Boyd & Co., all of which was necessary in order to make a good indictment, and that defendant might know the nature of the crime with which he was charged. An indictment cannot be held good which simply charges, as in this case, in a general way the commission of a criminal offense.

Our attention has not been called to, nor have we after careful and diligent search been able to find, any statute making the act of tearing or detaching, from the note or duebill, a credit or receipt for money entered on the same piece of paper, forgery. The nearest approach to it is section 3641, Rev. St. 1889, which reads as follows: "Every person who, with intent to injure or defraud, shall falsely make, alter, forge or counterfeit any instrument or writing, being or purporting to be the act of another, by which any pecuniary demand or obligation

ed, increased, discharged or diminished, or
by which any rights or property whatsoever
shall be or purport to be transferred, con
veyed, discharged, increased or in any man-
ner affected, the falsely making, altering,
forging or counterfeiting of which is not
herein before declared to be a forgery in
some other degree, shall, on conviction, be
adjudged guilty of forgery in the third de-
gree." It will be observed that there is
nothing said in the statute quoted with re-
spect to tearing or detaching from a note
or duebill a receipt or credit for money, and
no omission can be supplied in a penal case
by intendment. In State v. McLeran, 1
Aikens, 311, it is said: "Nothing must be
construed to be within a penal statute but
what is fairly within it. The section of the
statute which is relied upon for the support
of this indictment is composed of particu-
lars, in its description of the offense, and
the case before us is not among those par-
ticulars.
ticulars. It is a case omitted. That which
is called a note in the statute can only mean
all that which, connected together, composes
the promise or liability from the payor to the
payee; and the making or altering any mate-
rial part of this is termed forgery by the
statute. The words 'assignment' or 'indorse-
ment,' in the statute, are used as synony-
mous, and mean a transfer. But, if they
mean an indorsement of payment, still it is
the making or altering them that constitutes
forgery. So of the expressions, 'acquittance'
or 'receipt for money or other thing.'
they would comprehend the indorsement of
payment, still it is the making or altering
the same that constitutes forgery. The sev-
ering such indorsement already made is a
different act. It leaves the indorsement legi-
ble, consisting of the same words and let-
ters as before severed. In short, it is not
one of those acts pointed out in the statute
to be punished as forgery." 2 Bish. New
Cr. Law, § 578. The receipt or credit on
the duebill becomes no part of it; and if a
suit had been brought on the duebill, and
the credit had been claimed by the obligor
and denied by the holder, other evidence
than the mere indorsement or entry of the
credit would have been necessary in order
to entitle him to the benefit of the credit.
And in such a suit it would not be necessary
to make any averment with respect to any
credit that may have been entered on the
duebill.

If

The offense attempted to be charged is not for the alteration of the indorsed credit, which was held to be forgery in Kegg v. State, 10 Ohio, 75, where the credit was entered on the note by the mutual agreement, and in the presence of the parties thereto, but is for tearing and detaching from the paper upon which the duebill was written the credit entered thereon by agreement of the parties. The ruling in State v. Davis, 53 Iowa, 252, 5 N. W. 149, was sim

ilar to that in the case last cited. It was said in State v. Thornburg, 6 Ired. 79, that "the intentional destruction of an acquittance, in whatever way, cannot be either a making of a written instrument, or the alteration of or addition to a truly written instrument, so as to bring the act within the definition of forgery." The statute makes it a criminal offense to alter, forge, or counterfeit any instrument or writing, being or purporting to be the act of another, by which any pecuniary demand or obligation shall purport to be increased, discharged, or diminished, but it contains no provision against tearing or detaching from such an instrument any credit or receipt attached. There is a clear distinction in case a credit is indorsed on the back of a note or duebill, and signed by the payee, or where such credit is indorsed by mutual consent, and subsequently erased or altered, with intent to defraud, and where the credit is entered below the note, on the same piece of paper, with intent to defraud. In the first class of cases the offense would be forgery, within the meaning of the statute. In the latter, there being no alteration or change in the words or figures, it would not be. The indorsement of the credit in the case at bar formed no part of the duebill, and the detachment thereof by defendant was not forgery within the meaning of the statute. The judgment is reversed, and the defendant discharged.

GANTT, P. J., and SHERWOOD, J., con

cur.

STATE v. EDMONSON. (Supreme Court of Missouri, Division No. 2. Dec. 3, 1895.) ABORTION--EVIDENCE-SUFFICIENCYINSTRUCTION.

1. A conviction for causing death by abortion was sustained by evidence showing that deceased became pregnant by defendant; that defendant inquired the means of producing an abortion, and stated that an appliance had been unsuccessfully used for that purpose, and that he had made arrangements with a doctor in another city to dispose of the case, and "get rid of it"; that after deceased returned she was attended by a doctor employed by defendant; that defendant endeavored to have others marry deceased; that defendant administered a drug, which produced a miscarriage; that deceased, in defendant's presence, charged him with her ruin; that deceased shortly afterwards died, and that defendant wanted deceased buried quickly.

2. On a trial for causing death by abortion, a charge that unless the state proved that deceased was pregnant, and that defendant administered or caused to be administered drugs for the purpose of procuring, and which did procure, an abortion, which was the cause of deceased's death, the jury should find defendant not guilty, required the jury to find every essential fact constituting the crime.

Appeal from circuit court, Taney county; James T. Neville, Judge.

v.33s.w.no. 1-2

John O. Edmonson was convicted of manslaughter in the second degree for causing slaughter in the second degree for causing death by an abortion, and appeals. Affirmed.

W. G. Robertson, T. J. Delaney, and W. D. Hubbard, for appellant. R. F. Walker, Atty. Gen., for the State.

GANTT, P. J. At the November term, 1893, of the criminal court of Greene county, the defendant was indicted for having caused the death of Ada Hawk, a pregnant woman, by administering to her certain poisonous medicines, drugs, and substances, with the intent to produce the abortion and miscarriage of said Ada Hawk, the same then and there not being necessary to preserve the life of said Ada Hawk, and the same not having been advised by a physician to be necessary for that purpose. The defendant was duly arraigned, and upon his application the venue was changed to Taney county for trial, and at the October term, 1894, defendant was put upon trial, and convicted of manslaughter in the second degree, and sentenced to the penitentiary for three years. The evidence discloses that plaintiff was at the time of the alleged criminal conduct a widower, living with his mother, in Greene county; that Ada Hawk was a young woman, about 20 years old, living with her parents, at Buckley, in Greene county; that some time in April, 1893, he induced the girl to work as a house servant for his mother; that he seduced her, and she became pregnant. The evidence is, further, that he was consulting various persons as to the best means of producing an abortion, and stated to one witness "that he, or he and the girl, had used a rubber catheter," "but it didn't work"; "they didn't get it inserted right." He afterwards told this same witness that he had taken the girl to Springfield, and had made arrangements with a doctor, whose name he did not disclose, to dispose of the case for $50. To another witness he said he had hired an old woman and a doctor at Springfield "to get rid of it." It was also shown that he went to a druggist, Mr. King, and inquired if he knew what would produce an abortion, and when told by King that he did not he inquired whether whisky and Indian turnips would accomplish it, and was told a place near Walnut Grove, where Indian turnips were to be found. It was shown that after the girl returned from Springfield to her home the defendant insisted that her parents should not employ Dr. Hardin, the family physician, but said he would employ Dr. Perry; that he did go after Dr. Perry, who refused to go until defendant guarantied his fees. It was shown further that he endeavored to get Henry Creed and L. B. Harper to marry the girl, and that she resented it. To the witness McClure defendant stated that he had got an old woman and a doctor at Springfield "to work it" for him, and they had done so. The witness thought he said "the woman was keeping the Commercial

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