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bim selling those cattle for a few days, and , ed to have been stolen. The owner of the said, "Fred, you said you would not tell cow described his cow as follows: about me selling you these cows for a few "She was a black cow, weighing one thousand days;" and defendant replied, “I haven't said pounds, wore a bell, and had white on her belly anything to any one about it yet.” After and white on her flank, and her right front foot

was white." this conversation the witness, together with

Defendant described the cow which he defendant and Harry Long, went to Protem, drove away on the night in question as a the defendant leaving the cows on the range black cow, and further said: near the place of purchase. In rebuttal, Emerson Rozell, testifying 920 pounds, and she had some white on her.

“As I said a while ago, I think she weighed for the state, said that in 1915 he lived near

It is true that one of the state's witnesses, the Chigre Hill schoolhouse, in Arkansas, after testifying that the cow which defendant within a quarter of a mile of Albert Sis- had in his possession was a black cow weighsom; that he was well acquainted with Sising 900 or 1,000 pounds, further stated that som, but did not know that Sissom owned "she had a little white on both hind feet"; any cattle; that he (witness) supplied Sis

yet on cross-examination concerning the white som with mile that year. On cross-examina

on the cow he said, "I don't remember; I tion the witness said he never heard Sissom remember noticing some white on her feet.” claim that he owned any cattle, but that “he

It will be recalled that the bell which was might have had some hid out in the brush, worn by the cow belonging to the prosecuting on the range."

witness prior to her disappearance from the D. F. McConkey, of Forsyth, and Moore, range was later found along the road over Barrett & Moore, of Ozark, for appellant. which defendant drove the cow on the night Frank W. McAllister, Atty. Gen. (Thomas J. in question, and at a point six or eight miles Cole, of Joplin, of counsel), for the State.

north of the range upon which the stolen cow

was located prior to her disappearance. We WILLIAMS, J. (after stating the facts as think the evidence, considered as a whole, above). [1, 2] I. Appellant insists that the was sufficient to make the question of the eridence is insufficient to support the ver- identity of the cow one for the jury. dict, and that the court erred in overruling

[3] II. It is contended that the court erred his demurrer to the evidence offered at the in giving instruction No. 8. This instruction close of the case. Cases involving the ques- informed the jury of the presumption aristion of the larceny of stock from the range ing from the recent exclusive and unexplainofttimes present questions difficult of solu-ed possession of stolen property. The intion. One of the recent cases which present struction given follows substantially (so far ed a troublesome question of this kind was as the present facts justify) the form apthe case of State v. Lee (not yet officially proved in the case of State v. Good, 132 Mo. reported) 182 S. W. 972, in which it was 114, loc. cit. 125, 33 S. W. 790. The purpose held by the court in banc that the evidence of an instruction upon this question of law was not sufficient. After a very careful con- is to aid the jury in identifying the thief sideration of the evidence in this case we when it has first been found by the jury that have reached the conclusion that it contains a theft has in fact occurred. State y. Warsufficient additional evidence to distinguish den, 94 Mo. loc. cit. 651, 8 S. W. 233; State v. it from the Lee Case, and that the evidence Lee, supra. In the cases cited the giving of an is sufficient to make the question of guilt one instruction on this subject was held to be for the jury's determination. The fact that erroneous, because in each of those cases the cow was driven at night a distance of it stood admitted that the defendant was the 10 or 12 miles, and the next day sold and taker (the only issue there presented being shipped away, and the further fact that de- whether the taking was or was not felofendant left the state at a time when he nious); hence the instruction in those cases knew that he stood charged with the crime was unnecessary and apt to be misleading. and that a warrant was out for his arrest, In the case at bar, however, defendant does are facts sufficient within themselves to dis- not admit nor does it stand conceded that tinguish this case from the Lee Case, and defendant is the person who took the cow when those facts are considered in the light from the possession of the prosecuting witof the whole evidence we think the evidence ness. The person who took the cow from the sufficient to make a case for the jury. range, where the prosecuting witness had

The main point urged by appellant in be placed her, was the felonious taker. There half of his contention that the demurrer is no direct evidence as to who that person should have been sustained is that the evi- was. The identity of the felonious taker dence wholly fails to show that the cow was therefore an issue in the case, and, as a driven away at night by defendant was in permissible aid to the jury in solving this fact the cow alleged to have been stolen. We question, the instruction was proper. think the evidence in this regard was suffi

Other instructions appear to be in proper cient to warrant the jury in finding that the form, and we find no error in the case. The cow taken by defendant was the one charg- judgment is affirmed. All concur.

lons to the poorfarm, and "so much” (meanKANSAS CITY DISINFECTING & MFG. ing the remainder probably) to the court

CO. v. BATES COUNTY. (No. 18903.) house. Plaintiff took the order from one, the (Supreme Court of Missouri, Division No. 2. said Bullock, then sheriff of Bates county, Feb. 16, 1918.)

through a certain C. W. Meyers, as agent, to 1. APPEAL AND ERROR C302(5)

which latter as a commission for obtaining

ASSIGNMENT OF ERROR INSTRUCTIONS SUFFI- the order from Bullock, 40 per cent. of the CIENCY.

amount of the order, or $56, was paid. An assignment of error in the motion for Speaking of the valuable and lethal qualities a new trial that "the court refused proper declarations of law offered by the plaintiff" is not of what the witness amiably, but perhaps sufficient, even in a civil case to authorize re- euphuistically, denominated “these goods" he view.

said: 2. APPEAL AND ERROR Om 242(5)-ADMISSION

"If there are any roaches shows up (sic) OF EVIDENCE-OBJECTION OR EXCEPTION.

around the building it is used for them. If Where evidence was admitted, “subject to there are prisoners brought in, they spray their the objection” of plaintiff, who made no further clothes and sometimes as you know, it is neceseffort to obtain a definite ruling, and where sary to spray their person with it too. It is there was no definite ruling thereon, the Su- an insecticide. We sell it for insecticide, but it preme Court could not know whether the court is a standard disinfectant. You can use it in considered the evidence or not, and hence could a room like this, or any other room, say where not review its admission.

one has had smallpox, or something like that. Appeal from Circuit Court, Bates County; It is not for toilets, it is too expensive for

that. It is all right to be used for that, but C. A. Calvird, Judge.

we do not recommend it for toilets, it is too Action by the Kansas City Disinfecting & expensive. * The name shows it will kill Manufacturing Company against Bates Coun- any bugs or germs it comes in contact with, any ty. Judgment for plaintiff for less than

insects.' claimed, and it appeals. Affirmed.

It also sufficiently appeared from this witPlaintiff sued Bates county for the sum of ness' testimony that many demands had been $140, being the purchase price of 70 gallons made upon defendant for payment, but that of Killbug Insecticide, bought in September,

payment had never been made. 1911, by a sheriff of that county for use in

Bullock, sheriff when the Killbug Insectithe jail, the poorhouse, and the courthouse. cide was purchased (utterly reckless of the On a trial before the circuit court, sitting as

inherent prohibitive richness of this concoca jury, judgment was rendered in favor of tion as a deodorizer for sewers et id omne Plaintiff for the sum of $20 only, and plain- genus), testified that he bought it as a disintiff appealed.

fectant, or deodorizer, to discourage an ofThe facts are brief, but unique and illumi. fensive odor which came from the jail sewnating. Whether the case originated in the er, which sewer passed through or near the county court and traveled thence to the cir- basement kitchen of the jail wherein the witcuit court by appeal, or whether it was be ness resided. He also said that during his gun originally in the circuit court, is dark term of office he might have bought as much and doubtful. Be this as may be, the pro

as 320 gallons of disinfectant, and that there ceeding is bottomed upon an account for bug was already a barrel on hand when the witexterminator, which, date and merely orna

ness took office, which latter, however, he mental externals omitted, reads thus:

had never used because he did not recognize "Sold to Bates County, Missouri, 70 gallons

it as disinfectant, but thought it was bridge Killbug Insecticide at $2, $140. "Killbug In- paint. He was, he said, compelled to adminsecticide, guaranteed by the K. C. Disinfecting ister this insecticide to this sewer in por& Mfg. Co., under the Insecticide Act of 1910. tions of 3 or 4 gallons at a time. Serial No. 175."

Other testimony came into the case (over To this account is appended the 0. K. of plaintiff's objection, but subject thereto), to one W. J. Bullock, with the statement, to the effect that when the case was tried (some wit:

two years after the sale here under discus"I ordered and received the above bill of goods sion), there were yet on hand of divers disfor Bates county, as sheriff.”

infectants more than 320 gallons, a supply, Upon the trial the president of plaintiff some of the witnesses say, more than suffi. testified by deposition, and in order, possibly, cient to last Bates county for ten years. Of to show the extent of the infection, he stat- this supply on hand more than 60 gallons ed that plaintiff sold "this Killbug" to numer- thereof were made up of the remainder of ous counties in Missouri, Oklahoma, and the identical 70 gallons of Killbug Insecticide Kansas, and the witness “judged” that a bought from plaintiff and now here in dis70-gallon order was “a reasonable supply for pute. Testimony also came in over plaintiff's a county like Bates county.” The witness objection, and which was likewise admitted stated that, being advised that "these goods" subject thereto, that the usual and customwould be delivered for use to the jail, the ary price of standard disinfectants was from poorfarm, and the courthouse, he shipped the | 75 cents to $1 per gallon. Other necessary goods in 10-gallon cans, so that 20 gallons facts, if such there be, will be set out in our could be conveniently sent to the jail, 20 gal. discussion.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

W. O. Jackson, of Butler, for appellant. , the reasons which operate to render recovery of D. C. Chastain, of Butler, for respondent.

money voluntarily paid under a mistake of law by a private person applies to an officer. The

law which fixes his duties is his power of atFARIS, J. (after stating the facts as torney; if he neglect to follow it, his cestui above). [1] Plaintiff complains that the que trust ought not to suffer. In fact, public court erred in refusing instructions number- policy requires that all officers be required to ed 1, 2, and 3, which were offered by plain- perform their duties within the strict limits of

." tiff, but learned counsel does not favor us with any reasons for the faith which we It is not doubted that the statutes (secassume is in him, nor does he furnish us tions 1571, 1573, R. S. 1909) and the construcwith any authorities for the position which tion thereof by this court in a case to an exhe takes. He merely assigns the error and tent analogous (Harkreader v. Vernon Counlets it go at that. Moreover, the only assign-ty, 216 Mo. 696, 116 S. W. 523) furnish aument of error in plaintiff's motion for a new thority to a sheriff of a county to purchase trial which is at all apposite is the general such articles and supplies as are requisite one that "the court refused proper declara- and necessary to keep and maintain the tions of law offered by the plaintiff.” This county jail “in good and sufficient condition is not sufficient as an assignment of error and repair.” But such authority absent an even in a civil case. Polski v. St. Louis, 264 order of the county court, who might pro Mo. 250, 175 S. W. 197; Wampler v. Railroad, hac vice make him its agent, would not ex269 Mo. 464, 190 S. W. 908; State v. Rowe, tend to purchases made for the poorhouse 271 Mo. 88, 196 S. W. 7.

or the poorfarm, the custody and control of [2] It is also urged that it was error in which are vested by statute in the county the court nisi to admit evidence tending to court and not in the sheriff. Section 1343, show that at the time the Killbug Insecticide R. S. 1909. Likewise, the county court is by here in question was bought by the sheriff, statute vested with the control of the courthe had on hand more than 250 gallons of house (section 4081, R. S. 1909), and while it other disinfectants and insecticides. Like- is made the duty of the sheriff "to furnish wise that it was error to admit evidence of fuel, stationery and other things necessary the price at which other disinfectants were for the use of the court" (section 3887, R. selling at the date of this purchase. Regard. S. 1909), this duty is delimited by the apless of whether there be inherent error in ad- pended provision directing performance mitting this evidence or not, it was all ad- thereof "whenever ordered by the court" mitted by the court "subject to the objec- (section 3887, supra). This latter conditiontion" of plaintiff. In one case the trial court al duty is disassociated from control of the expressed the opinion that the evidence was premises, and is a general one which the not admissible, but admitted it subject to sheriff owes to the circuit court, to the proplaintiff's objection. Plaintiff made no fur- bate court, and even to the county court itther effort to obtain a definite ruling, nor self, though the latter court is the general was any such definite ruling at any time made statutory contracting, auditing, and fiscal upon plaintiff's objections by the trial court. agency of the county. Clearly, such an order In such case we cannot know whether the should either be express or plainly implied court considered this evidence or not. His from the necessities of the situation. language when he came to render judgment If so it be that Killbug Insecticide is conwould indicate that he did not allow it to noted within the extremely general designaenter into the case as a deciding factor. tion of "other things necessary,” as

No other errors are called to our attention, tained in the statute last above mentioned although it is suggested, apposite to the whole (touching which we venture no opinion), we case mayhap, but not in such wise as to are able to appreciate the pertinency of the call for review by us, that the sheriff had qualifying provision that a sheriff in furpower to bind the county. It is probable nishing such other necessary things should that even this suggestion is too broad a state- act only whenever ordered by the court. ment of the controlling law. We took occa- For it would be to place too great a burden sion to say in the case of Lamar v. Lamar upon even a sheriff's omniscience to require Twp., 261 Mo. loc. cit. 189, 169 S. W. 15, him to know when Killbug Insecticide beAnn. Cas. 1916D, 740, that:

comes an absolute necessity for the sanita"Officers are creatures of the law, whose du- tion and comfort of any of these several ties are usually fully provided for by statutc. courts. On the other hand, it might well In a way they are agents, but they are never happen that the duty of providing 70 gallons general agents, in the sense that they are hampered by neither custom nor law and in the of Killbug Insecticide for the immediate use sense that they are absolutely free to follow of a court would become, upon occasion, so their own volition. Persons dealing with them urgent and pressing as to furnish legal wardo so always with full knowledge of the limi- rant for the sheriff's acting without a solemn tations of their agency and of the laws which, prescribing their duties, hedge them about. order of the court to that end, and that such They are trustees as to the public money which act might in law be excused upon the ground comes to their hands. The rules which govern of necessity, or even, if we may borrow a this trust are the law pursuant to which the money is paid to them and the law by which term from the criminal law, upon the ground they in turn pay it out Manifestly, none of of self-defense.

con

cur.

But these important puzzling and conflict-, was some friction between the families. But ing questions are not confronting us. We it does appear, from the evidence for plainmerely suggest them as considerations of tiff, that her grandfather met her mother in grave importance to all courts, whom sher- the road and asked her to make her home at iffs are required to serve, reserving our sol- his house, and she did not accept the offer. emn adjudication till a concrete case shall The wife and daughter made their home arise wherein we shall meet these points with relatives. While at his father's house face to face. Since no errors are urged in David did chores and went on errands, but a manner meet for review, the case ought | did not make a hand on the farm. He talkto be affirmed. Let this be done. All con- ed little except to himself. He mumbled at

his meals. He would frequently, whether alone or in the presence of others, make

speeches and gesticulate. One witness said, MOON v. WORKMAN et al. (No. 18624.) “He would talk like a preacher or a lawyer (Supreme Court of Missouri, Division No. 2. addressing a jury.” On such occasions, when Dec. 4, 1917. Rehearing Denied

asked, “What are you doing?” he would anFeb. 16, 1918.)

swer, "Nothing.” In 1887 the wife sued Da1. DEEDS 196(2) — VALIDITY — BURDEN OF vid for maintenance, and got a judgment for PROOF.

Where a weak-minded son was living with $2.50 per week. his father when he conveyed land to the latter, John Workman, on November 15, 1887, purthe burden was on defendants, claiming the land chased at sale under execution on such judgunder the father, to show that the latter acted ment five acres, the south end of said tract, in good faith and without fraud in obtaining the conveyances.

for $125; and three days thereafter David 2. DEEDS Ow211(3) SUFFICIENCY OF Evi- conveyed to his father the remaining 75 DENCE-VALIDITY.

acres of the tract for the expressed considerIn a daughter's action to set aside convey-ation of $700. That land was then worth ances from her deceased father to her grandfather, evidence held sufficient to discharge the $20 or $30 an acre. burden of defendants, claiming under the grand On May 25, 1889, David's wife obtained a father, to show that he acted in good faith divorce from him with $35 as alimony. John without fraud in the transactions with his son, Workman paid a fee of $25 to David's lawwho was weak-minded and living with him.

yer in that case. It does not appear whether Appeal from Circuit Court, Daviess Coun- he paid the alimony. Three days afterward ty; Arch B. Davis, Judge.

the divorced wife quitclaimed the land in Suit by Florence Moon against Francis controversy to John Workman for the exWorkman and others. From decree for de pressed consideration of $25, and David quitfendants, plaintiff appeals. Affirmed.

claimed to his former wife 44 acres of land Plaintiff sued to set aside certain convey- and some lots in Pickering. What the interances made by and to her deceased father, ests of the parties were in that property is David Workman. From an adverse decree not shown. That deed recited that it was she has appealed.

made in consideration of a settlement beThe evidence for the plaintiff shows the tween the parties. During John's life he following facts:

loaned some money in David's name and Plaintiff's parents, David and Martha Ann kept a separate bank account of it. Workman, were married in 1865. Three In 1894 John reconveyed a life estate in years afterward John Workman, David's fa- the land to David for the expressed considther, conveyed to David 80 acres of “good eration of $1 and love and affection, and smooth land," described as the W. 12 of the died in 1902. He could not write, and signS. W. 14 of section 18, township 65, range ed his name by making a cross. William F. 35, in Nodaway county. The consideration Gray, who appears to be a relative of the is not shown. David lived with his family plaintiff and testified for her, was constrainon that land from that time until 1886, when ed to say, “Uncle Johnny was a strong, selfhis house was burned. He then had an only willed man, and whatever he told you you child, this plaintiff. His mind had very ap- could depend on." preciably failed for several years, so much

Early in 1903 this plaintiff instituted proso that his wife, who was “a hustler," had ceedings to have her father adjudged to be assumed the management of affairs. Prior of unsound mind, which resulted in putting to the fire on some occasions in winter time him under guardianship, his money and John Workinan, who lived about four miles notes then amounting to about $1,750. Daaway, would take David's cattle to his own vid thereafter lived with his brothers and place and care for them because they (the nephews, dying in 1912, at which time his cattle) were in poor condition. After the fire property in his guardian's hands amounted David went to his father's to live. The to $2,068.80, of which $1,729.83 was paid to daughter, this plaintiff, was there a wbile. plaintiff'. There is evidence indicating that the wife The evidence indicates clearly that during wanted to rebuild and continue on the farm, all the time after the burning of his home but that David refused, and also that there David was treated with kindness and affec

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tion by those with whom he stayed, and that he conveyed to the son a life estate in the ne to the extent of his powers was faithful land. He faithfully kept David's money to as a watchdog to those who cared for him. itself. Even the plaintiff paid her grand

The petition alleged mental incapacity to father a deserved compliment by not asking make the deed which he made to his father that he be put under bond as his son's guardin 1887, and also alleged fraud and undue in- ian. Very soon after his death she institutBuence on the part of his father in procur- ed proceedings to have her father adjudged ing said deed, and sought to have said deed insane. David then had in money and to the father set aside. The petition does notes about $1,750. One of plaintiff's witnot offer to return the consideration express- nesses said of John Workman, “Whatever ed in the deed. The answer states that John he told you you could depend on." His name Workman took said deed in good faith and needs no statute of limitations to protect it for a fair consideration, and pleads the stat- from the charge of fraud and unfair dealing. ute of limitations. It alleges that plaintiff is The judgment is affirmed. barred by the statute of limitations, “even if it be true, as alleged by her, that the said Da- WHITE, C., concurs. rid Workman was of unsound mind on Norember 18, 1887, when he made the deed in PER CURIAM. The foregoing opinion of controversy of the land above described to ROY, C., is adopted as the opinion of the the said John Workman." Appellant's brief court. All the Judges concur. in this court disclaims the idea that David was of unsound mind when the deed was made in 1887, but insists that he was of

CITY OF LANCASTER v. REED. weak mind and under the domination of the

(No. 18930.) stronger mind of his father.

(Supreme Court of Missouri, Division No. 2. W. E. Wiles, of Cherokee, Okl., for ap

Feb. 16, 1918.) pellant. Shina bargar, Blagg & Ellison, of COURTS 231(23)—SUPREME COURT—JURISMaryville, for respondents.

DICTION-CONSTITUTIONAL QUESTION-SUF.
FICIENCY OF MOTION TO QUASH COMPLAINT

TO RAISE.
ROY, C. (after stating the facts as above).

In a prosecution for violation of a city or[1] We think that $700, the consideration dinance, defendant's motion to quash the comnamed in the deed from David to his father, plaint because the ordinance on which it was made in 1887, was about half the value of based was unconstitutional and void, and in

fringed on the rights of personal liberty, etc., the property. We also recognize the fact did not give the Supreme Court jurisdiction of that the relations between David and his his appeal, since the provision of the Constifather at that time were such as to cast the tution involved must be pointed out to give burden upon these defendants of showing Constitution, state or "federal, not being suffi

such jurisdiction; a general reference to the that the father acted in good faith and with- cient. out fraud in that transaction.

Appeal from Circuit Court, Schuyler Coun[2] On the other hand, we are of the opin. ty; N. M. Pettingill, Judge. ion that the defendants have fully discharged

Prosecution by the City of Lancaster that burden. After the fire John Workman against Wes Reed. From judgment sustaintook David and cared for him. He offered ing motion to quash the complaint, the City the wife a home which she did not accept. | appeals. Case transferred to the Kansas She went elsewhere, as she had the right to

City Court of Appeals. do, but she got judgment against her husband for maintenance. That judgment was threat

Claude C. Fogle, of Memphis, for appelening to eat up the land. John knew that lant. S. W. Mills, of Kirksville, and Higbee the land was subject to dower and to a law- & Mills, of Lancaster, for respondent. suit. The amount paid by him for the land is probably more than any one else under the WHITE, C. The city of Lancaster appeals circumstances would have paid. One of plain- from the judgment of the circuit court of tiff's witnesses expressed his opinion of such Schuyler county, sustaining a motion to a deal by saying, “I wouldn't buy such a ti- quash a complaint filed in said circuit court tle.” That was too pessimistic, but the plain- against thc defendant. tiff should not entirely repudiate the opinion The defendant was charged with violating of her own witness. While the son was Ordinance 195 of the city of Lancaster. Secmumbling at his meals and “talking loud tion 1 of this ordinance provides that any like a preacher or a lawyer," the father person who shall be guilty of an act of pubwent into the "first ditch” to save the land lic indecency shall be guilty of a misdeif he could. Did he do that for self or for meanor. Section 2 defines such an act, and, the son? The indications are that he gave among other things, provides that whenever the land to the son in 1868. In the winter two or more persons of opposite sex are as. · time, when David's feed was exhausted, the sociated together upon the sidewalk or streets father took the half-starved cattle of his of the city, one of them being a person of boy and fed them until grass came. In 1894 ) ill repute, such association is an act of in

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