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estate of his wife, valued at $9,000. He also STATE ex rel. FRIEDMAN et al. v. owed him about $500, which was unsecured. PURCELL et al.

Relators lived in La Cygne, Kan. On said (Supreme Court of Missouri, Division No. 1. day, said Swartz sold his stock of goods to Nov. 26, 1895.)

relators for $3,000, which was paid by draft, FRAUDULENT SALE-KNOWLEDGE OF PURCHASER

of which $2,900 was paid to Cunningham on INADEQUACY OF CONSIDERATION-IRRESPONSIVE his claims, and $100 was paid to his attorney. ANSWER-CoxCLUSIONS OF LAW AND FACT.

The goods were at once delivered to relators. 1. Facts and circumstances which would

The entire transaction was concluded that naturally put a person of ordinary caution on such inquiry, before purchasing property, as

morning before breakfast. In about two would reasonably lead to knowledge that the hours after the transfer, two of Swartz's vendor was attempting to dispose of it in fraud mercantile creditors commenced suits by atof his creditors, are evidence from which that

tachment against him. Writs were issued, knowledge may be found. 2. A debtor in failing circumstances may

and the goods were levied upon by defendant dispose of his property in good faith, in order to Purcell, who was then sheriff. Afterwards, obtain money to meet his obligations, though under an order of court, the goods were sold such sale may in fact hinder and delay his creditors.

by the sheriff at auction, and brought $3,600. 3. An improper answer of a witness, which The court found "that said sale on the part is irresponsive to the question, will not be of Swartz was made to defeat and defraud a ground for reversal, unless the party claiming

part of his creditors, and that said Friedman to be prejudiced thereby moved to have it stricken out or disregarded.

knew the purpose of said sale when he made 4. A statement by the court, in one of its the draft on the National Bank of Kansas conclusions of fact, that the sum paid for a City and delivered it to Swartz.” The eighth stock of goods “was an inadequate considera

finding was as follows: "The court finds tion," is not equivalent to a finding that the sale was fraudulent.

from all the facts and circumstances that re5. The findings of the court, if supported by lators had actual notice, before the purchase substantial evidence, are as conclusive upon ap- of said stock, of a fraudulent intent on the peal as the verdict of a jury would be under the same evidence.

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.

and that the price paid for them by relators Action on the relation of A. Friedman and

was inadequate. The general finding was for another against James Purcell, as sheriff, and the sureties on his official bond. From a

defendants, and, from a judgment thereon,

plaintiff's appealed. judgment for defendants, plaintiffs appeal.

1. The court found from the evidence that Affirmed.

the sale of the goods was made by Swartz C. H. Montgomery and J. D. Snoddy, for with the fraudulent intent of hindering and appellants. J. D. Perkins and Thomas &

delaying his creditors, and that appellants Hackney, for respondents.

knew of such intent when they purchased

them. Relators asked the court to declare, MACFARLANE, J. This suit is upon the as a legal conclusion, that they were not official bond of defendant Purcell, as sheriff, "chargeable with notice of any fraudulent to recover damages for the alleged wrongful purpose on the part of Swartz, merely beseizure and sale of a stock of dry goods claim- cause A. Friedman failed to avail himself of ed by relators, and taken from their posses- an opportunity of making investigations which, sion, in Joplin, Mo. Defendants, by answer, if made, would have revealed some fraudujustified the seizure on the ground that the lent purpose, if any such purpose existed." goods were levied upon by Purcell, as sheriff, This declaration of law the court refused. by virtue of two writs of attachment issued While it may not be required of a purchaser against one Simon Swartz; and that the said of goods, in the usual course of business, to Swartz had previously, with intent to hinder, inquire into the motives of the seller, yet he delay, and defraud his creditors, sold and cannot be allowed to shut his eyes to facts transferred them to relators, who at the time and circumstances which indicate a frauduhad notice of such intent. The case was tried lent motive. He is bound to draw correct without a jury. At request of relators, the inferences from facts and circumstances of court stated in writing its conclusions of fact. which he has knowledge, and which are conThese conclusions are stated at length and in sistent only with a fraudulent intent. The detail.

evidence in this case requires the application For a sufficient understanding of the case, a

of no broader rule. But the declaration, as the facts will be briefly stated: On the 14th an abstract proposition of law, is not correct. of December, 1892, Simon Swartz was, and The rule is that "facts and circumstances for some years had been, a merchant in Jop- which would naturally put a person of ordilin, and had on hand a stock of dry goods. nary caution on an inquiry reasonably leadHe was at the time largely indebted, and ing to knowledge of the truth are evidence some of his mercantile creditors were then from which that knowledge may be found.” pressing him for payment. He owed T. W. Barrett v. Davis, 104 Mo. 519, 16 S. W. 377. Cunningham, a banker at Joplin, about $2,- We find no error in refusing this declaration. 400, which was secured by mortgage on real 2. Relators complain of the refusal of the court to give the second declaration of law. for said stock of goods.” This, it is claimed, This declaration broadly asserts the proposi- was a virtual declaration of law that the tion that, if Swartz intended to apply all the sale was fraudulent because of inadequacy of proceeds of the sale to the payment of his consideration. We do not think the statevalid indebtedness, then there could be no ment can be regarded in such a light. The fraudulent purpose or intent in making the judge, in his finding of fact, did not confine sale. There is no doubt that a debtor in fail- himself to mere general conclusions, but found ing circumstances has the right to dispose of specifically many of the various facts which his property in order to obtain money for the may be regarded, separately, as mere badges purpose of paying his debts. This is so of fraud, and from which the general conthough the sale may in fact hinder and delayclusion was drawn. This criticised concluhis creditors. But this right has coupled with sion was one of them. It was therefore init the condition that the sale is made with an tended by the judge to state a fact, and not honest purpose. Daugherty v. Cooper, 77 Mo. a conclusion of law. Nor do we think the 531, and cases cited. The intention of the language used implies more. The word "inseller gives character to the transaction under adequacy," as used, does not imply that the the statute. Rev. St. 1889, § 5170. A con- sale was fraudulent. The broadest legal imveyance may be for an adequate considera- plication that can be drawn from it is that tion, and yet fraudulent as to creditors. the inadequacy of consideration was a badge Johnson v. Sullivan, 23 Mo. 482; Murray v. of fraud. "Inadequate price” is defined to be Cason, 15 Mo. 379. There was no error in re- "a term applied to indicate a want of sufficient fusing this instruction.

consideration for a thing sold, or such a price 3. Appellants assign as error the admission as, under ordinary circumstances, would be of the invoice of the goods made by the sher- insufficient." Bouv. Law Dict. In legal coniff, as evidence of their value. The record templation, a sale will not be regarded as shows that the witness was asked what fraudulent for the reason alone that the conamount was shown by the inventory. To this sideration is inadequate. When, therefore, objection was made. By the Court: "I don't the judge trying this case declares the concare what the inventory was, but, if he knows, sideration paid for the goods by relators to he can tell, after taking the inventory, what have been inadequate, without declaring its lethe value of the stock was." To this, counsel gal effect on the sale, we only understand him for plaintiffs objected and excepted. Wit- to state, as a fact, that the amount paid was ness: "I believe I have the inventory here in less than the goods, under ordinary circumthe desk. My recollection is it was over $7,- stances, were worth. If relators desired the 000.” No further objection was made. It court to state its conclusions of law on any will be seen from what was done and said of the facts found, they should have made that the inventory was not admitted as evi- proper and timely requests. dence at all. The court directed the witness 5. Counsel for relators undertakes to show to give his opinion as to the value of the that the conclusions of fact are not justified goods as ascertained in making the inventory. under the evidence. An examination of the The views expressed by the court in passing evidence shows us that it not only tended to upon the objection show that the inventory prove, but satisfactorily establishes, every was not taken as evidence of the value of the fact found. Such findings, if supported by subgoods. The improper answer of the witness stantial evidence, are as conclusive upon an could not have influenced the court in its appellate court as the verdict of a jury would finding. But, in any event, the answer of be under the same evidence. The credibility the witness was voluntary; and, if plaintiffs of the witnesses and the weight to be given feared its effect on the finding, they should the circumstances are matters for the deterhave moved to have it stricken out or disre- mination of the trial court, and will not be regarded. The court found the value of the goods viewed on appeal. when attached to be $3,600, the amount for Finding no error, the judgment is affirmed. which they were sold at auction by the sheriff. Plaintiffbought the goods for $3,000, and ad- ROBINSON, J., not sitting. The other mitted to the sheriff that he only paid 60 per judges concur. 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

STATE v. WOODWARD. their value. In his petition he claimed the

(Supreme Court of Missouri, Division No. 2. value of the goods to have been $5,000. It is

Dec. 3, 1895.) difficult to perceive wherein plaintiffs could

ROBBERY-INTENT-INSTRUCTION. have been prejudiced even had the invoice been admitted in evidence. The value found

An instruction on a trial for robbery

which failed to state, as an essential fact to by the court was within the lowest estimate conviction, that defendant must have taken the placed upon the goods by plaintiff himself. property with intent to deprive the owner of his 4. The court stated, in one of its conclusions property, and to convert it to a use other than

that of the owner, without his consent, is erroof fact, that the sum of $3,000 paid by relators

neous, though it is unnecessary to use the word to Swartz "was an inadequate consideration "felonious," or to define it.

Appeal from criminal court, Jackson county; which defendant tore therefrom, was insuffiJohn W. Wofford, Judge.

cient, in that it did not appear which duebill

defendant was accused of altering. Fred Woodward was convicted of robbery,

2. The detaching from a duebill of a credit and appeals. Reversed.

entered thereon, and passing the duebill for

the original amount thereof, are not forgery. Isaac B. Kimbrell, for appellant. R. F. Walker, Atty. Gen., Marcy K. Brown, and

Appeal from circuit court, Oregon county; Frank G. Johnson, for the State.

W. N. Evans, Judge.

Fred Millner was convicted of forgery, and GANTT, J. The defendant was indicted at appeals. Reversed. the January term, 1895, of the Jackson county A. H. Waller, for appellant. R. F. Walker, criminal court, jointly with one Mary Dwyer, | Atty. Gen., and Morton Jourdan, for the for robbery in the first degree. He was tried State. separately, and convicted, and sentenced to five years in the penitentiary. The evidence

BURGESS, J. At the February term, 1895, was amply sufficient to establish his guilt,

of the circuit court of Oregon county the debut he complains of an erroneous instruction,

fendant was convicted under an indictment asked by the prosecuting attorney and given

for forgery, and his punishment fixed at two by the court, in these words: “The court in

years' imprisonment in the penitentiary. structs the jury that, if you find and believe

From the judgment and sentence he appealed. from the evidence that, at Jackson county,

In the first count of the indictment he is Missouri, at any time within three years prior

charged with having forged the name of T. to the filing of the indictment in this case, the

J. Boyd & Co. to a duebill for the sum of defendant, Fred Woodward, either alone or

$2.20, and in the second count with having with another, in and upon witness John Pow

forged certain other obligations and demands, ell did make an assault, and any money, of

one of which was for the sum of $2.20, by any amount, of any value whatever, of the

erasing and detaching therefrom a credit of property of witness John Powell, from the

$1.50, which had been placed thereon by the person and against the will of said John Pow

payors at defendant's request. It appears ell, then and there, by force and violence to

from the evidence that, during the year 1894, the person of the said John Powell, did rob,

T. J. Boyd & Co. were a milling company, steal, take, and carry away, you will find the

engaged in business in Thayer, Mo.; that it defendant guilty as charged in the indict

was their custom to issue duebills in payment, and assess his punishment at imprison

ment of labor and wood; that on the 15th ment in the penitentiary at not less than five

day of September they issued a duebill to years." The exception to this instruction was

the defendant for $2.20; that defendant took well taken. The instruction falls short of an

the duebill to Boyd & Co., and had them inessential element,—that of the felonious in

dorse a credit on it for $1.50, which was to be tent to deprive the owner of his property,

paid to a Mr. Stark by Boyd & Co.; that and to convert it to a use other than that of

credit of $1.50 was indorsed at the bottom the owner, without his consent, and without

of the duebill as follows: "Received $1.50, any honest claim to it on the part of the taker.

mill stuff;" that the duebill was again delivHad the instruction contained this necessary

ered to the defendant, who took it to a merformula, it would have been sufficient. It was

chant in Thayer, where he presented and unnecessary to use the word "felonious," or

sold it, with the credit torn off, for $2.20 "feloniously," or to define them. Reg. v. Hem

trade. The defendant, testifying in his own mings, 4 Fost. & F. 50; State v. Brown, 104

behalf, stated that the duebill had been isMo. 365, 16 S. W. 406; State v. Moore, 101

sued to him for $2.20, and that he made a Mo. 316, 14 S. W. 182; State v. O'Connor, 105

request of Boyd & Co. to pay Mr. Stark $1.50, Mo. 121, 16 S. W. 510; State v. Campbell, 108

to be, as he understood, charged to him; that Mo. 613, 18 S. W. 1109; State v. Cantlin, 118

he did not see any credit on the duebill Mo. 100, 23 S. W. 1091; Brown v. State, 28

when it was taken to and sold to the merArk. 126. For this error the judgment must

chant; that he intended to do Boyd & Co. be, and is, reversed, and the cause remanded

no wrong, but sold the duebill in good faith. for a new trial.

It is conceded by counsel for the state that SHERWOOD and BURGESS, JJ., concur.

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 judg

ment should be reversed. The second count STATE v. MILLNER.

charged that defendant "then and there unlaw(Supreme Court of Missouri, Division No. 2. fully, willfully, and feloniously did make and Dec. 3, 1895.)

counterfeit divers false, forged, and counterFORGERY – INDICTMENT—UNCERTAINTY - DETACH- feit instruments, duebills, and writings purING CREDIT FROM DUEBILL.

porting to be the act of T. J. Boyd & Co., 1. An indictment charging defendant with by which divers pecuniary obligations and demaking divers fa lse duebills, and setting out one of them, and alleging that one of "said duebills

mands for the payment of goods, wares, merwas * credited with” a certain amount, chandise, 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 obliga- ed, increased, discharged or diminished, or tions purported to be credited, one of which by which any rights or property whatsoever said falsely forged and counterfeit instru- shall be or purport to be transferred, con ments, duebills, and writings is of the tenor veyed, discharged, increased or in any manfollowing, that is to say: '12-13-'94. Due ner affected, the falsely making, altering, bearer two dollars and twenty cents in Mdse. forging or counterfeiting of which is not T. J. Boyd & Co.,'-which duebill aforesaid hereinbefore declared to be a forgery in was then and there presented by the said some other degree, shall, on conviction, be Fred Millner at the mill of the said T. J. adjudged guilty of forgery in the third deBoyd & Co., and credited thereon at the bot- gree.” It will be observed that there is tom of said duebill with one dollar and fifty nothing said in the statute quoted with recents, and divers other credits on divers other spect to tearing or detaching from a note lost and destroyed duebills aforesaid, to the or duebill a receipt or credit for money, and grand jurors unknown, by the said T. J. no omission can be supplied in a penal case Boyd & Co.; and afterwards, to wit, on the by intendment. In State V. McLeran, 1 15th day of December, 1894, at the county Aikens, 311, it is said: “Nothing must be and state aforesaid, and at divers other times construed to be within a penal statute but now here to these grand jurors unknown, the what is fairly within it. The section of the said Fred Millner did then and there unlaw- statute which is relied upon for the support fully, willfully, fraudulently, and feloniously did of this indictment is composed of particualter, forge, and counterfeit said duebills afore- lars, in its description of the offense, and said, by then and there fraudulently and the case before us is not among those parfeloniously tearing, altering, and detaching ticulars. It is a case omitted. That which therefrom the credits theretofore placed by is called a note in the statute can only mean the said T. J. Boyd & Co. aforesaid," etc. all that which, connected together, composes The count now under consideration is ob- the promise or liability from the payor to the noxious, in that it is uncertain as to which payee; and the making or altering any mateone of the instruments mentioned defendant rial part of this is termed forgery by the is intended to be charged with feloniously statute. The words 'assignment' or 'indorsemaking, altering, and forging. It is true that ment,' in the statute, are used as synonyit sets out one of the instruments according to mous, and mean a transfer. But, if they its tenor, and then avers: “Which said due- mean an indorsement of payment, still it is bill aforesaid was then presented, *

the making or altering them that constitutes and credited thereon with one dollar and fifty forgery. So of the expressions, 'acquittance' cents, and other credits on divers other lost or 'receipt for money or other thing.' If and destroyed duebills," and then charges de- they would comprehend the indorsement of fendant with feloniously altering, forging, and payment, still it is the making or altering counterfeiting "said duebills aforesaid, by the same that constitutes forgery. The seythen and there fraudulently and feloniously ering such indorsement already made is a tearing, altering, and detaching therefrom the different act. It leaves the indorsement legicredits theretofore placed by the said T. J. ble, consisting of the same words and letBoyd & Co."; but it nowhere alleges which ters as before severed. In short, it is not particular instrument or duebill was present- one of those acts pointed out in the statute ed and credited with one dollar and fifty to be punished as forgery.” 2 Bish. New cents, which one was lost or destroyed, nor Cr. Law, § 578. The receipt or credit on which one was altered by tearing or detach- the duebill becomes no part of it; and if a ing therefrom any credit placed thereon by suit had been brought on the duebill, and said T. J. Boyd & Co., all of which was nec- the credit had been claimed by the obligor essary in order to make a good indictment, and denied by the holder, other evidence and that defendant might know the nature than the mere indorsement or entry of the of the crime with which he was charged. An credit would have been necessary in order indictment cannot be held good which simply to entitle him to the benefit of the credit. charges, as in this case, in a general way the And in such a suit it would not be necessary commission of a criminal offense.

to make any averment with respect to any Our attention has not been called to, nor credit that may have been entered on the have we after careful and diligent search duebill. been able to find, any statute making the The offense attempted to be charged is not act of tearing or detaching, from the note for the alteration of the indorsed credit, or duebill, a credit or receipt for money en- which was held to be forgery in Kegg v. tered on the same piece of paper, forgery. State, 10 Ohio, 75, where the credit was The nearest approach to it is section 3641, entered on the note by the mutual agreeRev. St. 1889, which reads as follows: "Ev- ment, and in the presence of the parties ery person who, with intent to injure or de- thereto, but is for tearing and detaching fraud, shall falsely make, alter, forge or from the paper upon which the duebill was counterfeit any instrument or writing, being written the credit entered thereon by agreeor purporting to be the act of another, by ment of the parties. The ruling in State v. which any pecuniary demand or obligation Davis, 53 Iowa, 252, 5 N. W. 149, was similar to that in the case last cited.

It was

John 0. Edmonson was convicted of mansaid in State v. Thornburg, 6 Ired. 79, that slaughter in the second degree for causing “the intentional destruction of an acquit- death by an abortion, and appeals. Affirmed. tance, in whatever way, cannot be either a making of a written instrument, or the alter

W. G. Robertson, T. J. Delaney, and W. D. ation of or addition to a truly written in

Hubbard, for appellant. R. F. Walker, Atty.

Gen., for the State. strument, so as to bring the act within the definition of forgery." The statute makes it a criminal offense to alter, forge, or counter- GANTT, P. J. At the November term, 1893, feit any instrument or writing, being or of the criminal court of Greene county, the purporting to be the act of another, by defendant was indicted for having caused the which any pecuniary demand or obligation death of Ada Hawk, a pregnant woman, by adshall purport to be increased, discharged, or ministering to her certain poisonous medicines, diminished, but it contains no provision drugs, and substances, with the intent to proagainst tearing or detaching from such an duce the abortion and miscarriage of said instrument any credit or receipt attached. Ada Hawk, the same then and there not beThere is a clear distinction in case a credit ing necessary to preserve the life of said is indorsed on the back of a note or duebill, Ada Hawk, and the same not having been and signed by the payee, or where such cred- advised by a physician to be necessary for it is indorsed by mutual consent, and subse

that purpose.

The defendant was duly arquently erased or altered, with intent to de- | raigned, and upon his application the venue fraud, and where the credit is entered be- was changed to Taney county for trial, and at low the note, on the same piece of paper, the October term, 1894, defendant was put with intent to defraud. In the first class upon trial, and convicted of manslaughter in of cases the offense would be forgery, with- the second degree, and sentenced to the peniin the meaning of the statute. In the lat- tentiary for three years. The evidence dister, there being no alteration or change in closes that plaintiff was at the time of the the words or figures, it would not be. The alleged criminal conduct a widower, living indorsement of the credit in the case at bar with his mother, in Greene county; that Ada formed no part of the duebill, and the de- Hawk was a young woman, about 20 years tachment thereof by defendant was not old, living with her parents, at Buckley, in forgery within the meaning of the statute. Greene county; that some time in April, 1893, The judgment is reversed, and the defendant he induced the girl to work as a house servant discharged.

for his mother; that he seduced her, and she

became pregnant. The evidence is, further, GANTT, P. J., and SHERWOOD, J., con

that he was consulting various persons as to

the best means of producing an abortion, and cur,

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 STATE v. EDMONSON.

right.” He afterwards told this same wit(Supreme Court of Missouri, Division No. 2.

ness that he had taken the girl to Springfield, Dec. 3, 1895.)

and had made arrangements with a doctor, ABORTION--EVIDENCE-SUFFICIENCY

whose name he did not disclose, to dispose INSTRUCTION.

of the case for $50. To another witness he 1. A conviction for causing death by abor- said he had hired an old woman and a doctor tion was sustained by evidence showing that at Springfield "to get rid of it.” It was also deceased became pregnant by defendant; that

shown that he went to a druggist, Mr. King, defendant inquired the means of producing an abortion, and stated that an appliance had been

and inquired if he knew what would produce unsuccessfully used for that purpose, and that an abortion, and when told by King that he he had made arrangements with a doctor in

did not he inquired whether whisky and another city to dispose of the case, and "get rid of it”; that after deceased returned she was

Indian turnips would accomplish it, and was attended by a doctor employed by defendant; told a place near Walnut Grove, where Indian that defendant endeavored to have others mar- turnips were to be found. It was shown that ry deceased; that defendant administered a

after the girl returned from Springfield to drug, which produced a miscarriage; that deceased, in defendant's presence, charged him

her home the defendant insisted that her with her ruin; that deceased shortly afterwards parents should not employ Dr. Hardin, the died, and that defendant wanted deceased bur

family physician, but said he would employ ied quickly. 2. On a trial for causing death by abortion,

Dr. Perry; that he did go after Dr. Perry, a charge that unless the state proved that de

who refused to go until defendant guarantied ceased was pregnant, and that defendant ad- his fees. It was shown further that he enministered or caused to be administered drugs

deavored to get Henry Creed and L. B. Harfor the purpose of procuring, and which did procure, an abortion, which was the cause of

per to marry the girl, and that she resented deceased's death, the jury should find defend- it. To the witness McClure defendant stated ant not guilty, required the jury to find every that he had got an old woman and a doctor essential fact constituting the crime.

at Springfield "to work it" for him, and they Appeal from circuit court, Taney county; had done so. The witness thought he said James T. Neville, Judge.

“the woman was keeping the Commercial V.33s.w.no.1-2

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