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ant had wrongfully and unlawfully and with- | tenable. The answer did bear on the issues 1 out right, piled or caused to be piled a lot as to plaintiff's own statements and on his of cord wood on a public road in such man- character, and purported to give the whole ner as to create an obstruction calculated to conversation, as the witness was asked to do. frighten horses of ordinary gentleness and That it may have influenced the jury in passthat while plaintiff was traveling along the ing upon plaintiff's testimony unfavorably to road, riding a horse of ordinary gentleness, plaintiff, does not render it improper. the horse became frightened at the piles of wood and jumped and threw plaintiff to the ground, thereby seriously injuring him, for which injuries sustained plaintiff claims judgIment in the sum of $1,500.

The answer was a general denial.

On trial before the court and a jury, the jury returned a verdict for defendant from judgment on which plaintiff, filing his motion for a new trial and saving exception to that being overruled, has duly perfected his appeal to this court.

As to the facts it may be said that plaintiff's testimony tended to show that he received certain injuries by being thrown from his horse while he was riding along the road and through the piles of wood alongside of it. Defendant attacked the character of plaintiff for truth and veracity and also introduced evidence tending to show that the horse had not jumped; that measuring the tracks of the horse in the road showed the horse had neither jumped nor run off, as claimed by plaintiff.

The errors assigned are three: First, to the court refusing to strike out the testimony of a witness named. Second, giving to the jury an improper instruction, and third, to the overruling of plaintiff's motion for a new trial.

[1, 2] The first assignment of error cannot be sustained. The witness referred to being under examination on part of defendant, and testifying as to conversations between himself and plaintiff concerning the transaction, after having testified that in that conversation plaintiff had made a certain statement, was asked what, if anything further, plaintiff had then said. Whereupon the witness answered: "Well, he said this: 'You know as well as I do that Ott is a good man and a good church member, and has lots of friends, and if you prove my reputation it will be a job for me to gain this. You know that as well as I do.'" It is stated in the abstract that plaintiff thereupon moved the court to strike out the answer of the witness to the last question, "as having no bearing on the issues in the case and being improper evidence tending to prejudice the jurors against plaintiff." This is the motion referred to, which the court overruled and to which ruling plaintiff duly excepted. It will be noted that the question itself was not objected to when asked. The objection was made to the answer and for the reasons above. That answer might possibly have been objected to as not responsive to the question asked, although this is doubtful, but no such objection

[3] The instruction complained of is to the effect that if the jury found and believed from the evidence that plaintiff was injured on the date named, in the public road in front of the premises of defendant, by reason of any cause other than the frightening of the horse at the wood pile mentioned in the evidence, then the verdict will be for defendant. It is objected to this instruction that there is no evidence tending to show any other cause of injury than the frightening of the horse. It is true that there is no direct evidence of any other cause, but there was evidence tending to show that the horse had not been frightened and had not jumped on the occasion referred to. From that it would seem to follow that the jury had a right to infer, from the testimony in the case, that it was not the frightening and jumping of the horse that caused the injury. Apart from this, however, even conceding the proposition of the learned counsel for plaintiff, that there was a lack of evidence of any other cause, we are not prepared to say, on reading all the testimony in the case, that this instruction was harmful or in any manner misled the jury. It was undoubtedly understood by the jury to mean that to find for plaintiff, they must find that he sustained his injuries in the manner and from the cause alleged by him.

[4] This disposes of all the assignments of error except that plaintiff's motion for new trial, it is claimed, was improperly overruled. It is argued in support of this assignment that the motion for new trial should have been sustained by reason of the reception of the evidence and the giving of the instruction above referred to. We have disposed of these grounds. It is also claimed that the verdict of the jury is against the weight of the evidence to such an extent as to indicate that it is the result of prejudice, influencing the jury against plaintiff. In support of this ground, we are referred to Walton v. Kansas City, Ft. Scott & Memphis Railroad Co., 49 Mo. App. 620, loc. cit. 627. In that case it is there stated that in Price v. Evans, 49 Mo. 396, Judge Bliss impliedly states that it is error in the trial court to refuse a new trial where the preponderance of evidence against the verdict is so strong as to raise the presumption of prejudice, corruption or gross ignorance on the part of the jury. Our court held in the Walton Case that the facts in it clearly called for an application of that rule. Without determining whether that rule, said to be drawn from the Price Case, in the light of many decisions

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MISTAKE-DISCRETION OF COURT.

Rev. St. 1909, § 2022, authorizing the granting of a new trial if the court is satisfied that perjury or mistake was committed by a witness, occasioning an improper verdict or finding as to such matter, if the moving party has a just cause of action or defense, gives the trial judge a wide discretion in granting a new trial on such ground, subject only to its reasonable exercise under the facts.

of evidence as resting solely in the trial court, | 7. NEW TRIAL (§ 90*)-Grounds-Perjury OR is now in force, it is sufficient to say that the present case does not call for its application. We cannot say that the preponderance of the evidence in this case is so strong as to raise the presumption of prejudice, corruption or gross ignorance on the part of the jury. Plaintiff's case rested almost exclusively on his own testimony, and his credibility as a witness was very seriously attacked by several witnesses.

The judgment of the circuit court is af

firmed.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. 88 181-183; Dec. Dig. § 90.*] FINDINGS 8. APPEAL AND ERROR (§ 994*)

CONCLUSIVENESS.

It is not the appellate court's province to interfere with findings by the court which de

NORTONI and CAULFIELD, JJ., concur. pend upon the credibility of witnesses.

BYRD v. VANDERBURGH.

(St. Louis Court of Appeals. Missouri. Nov. 12, 1912.)

1. APPEAL AND Error (§ 842*)-GROUNDS FOR NEW TRIAL-SUFFICIENCY OF EVIDENCE.

A ground of a motion for a new trial that "the verdict and judgment are for the wrong party," and that they are contrary to the evidence, is, in substance, the same as a claim that they are contrary to the greater weight of the evidence, which is not a ground of appellate in

terference.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3316-3330; Dec. Dig. § 842.*]

2. APPEAL AND ERROR (§ 1003*)-FINDINGS CONCLUSIVENESS.

That the verdict is contrary to the greater weight of the evidence is not a ground for disturbing a verdict by the appellate court.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dec. Dig. § 1003.*]

3. NEW TRIAL (§ 128*)-SUFFICIENCY OF MO

TION.

A ground for a motion for new trial that the judgment and verdict are against the law is not sufficiently specific for consideration.

[Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 257-262; Dec. Dig. § 128.*] 4. APPEAL AND ERROR_ (§ 1061*)-HARMLESS ERROR-RULINGS ON EVIDENCE.

Error in sustaining a demurrer to appellant's evidence in an attachment suit involving the right to possession of hoops as to particular hoops loaded in a car, was not reversible, where

judgment went for appellant as to such hoops.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4137, 4209-4211; Dec. Dig. § 1061.*]

5. APPEAL And Error (§ 260*)-OBJECTION TO EVIDENCE.

Error in admitting evidence cannot be reviewed if the ruling admitting it was not except

ed to.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1503-1515; Dec. Dig. 8 260.*]

6. APPEAL AND ERROR (§ 1056*)-HARMLESS

ERROR-EXCLUSION OF EVIDENCE.

Error in excluding evidence relating to an item of property in controversy as to which judgment was rendered for appellant was harmless.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193; Dec. Dig. § 1056.*]

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3901-3906; Dec. Dig. 994.*]

9. NEW TRIAL (§ 89*)-Grounds-SURPRISEADMISSION OF EVIDENCE.

Where, in attachment proceedings involving the right to possession of hoops, the only issue was whether interpleader who purchased the hoops from the debtor had taken actual possession thereof, and interpleader introduced evidence that it had marked the hoops, it could not claim a new trial on the ground that it was surprised because plaintiff's witnesses testified that the hoops were not marked when levy was made, though that fact was not denied at the justice's trial.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 177-180; Dec. Dig. § 89.*] 10. NEW TRIAL (§ 97*)—GROUNDS SURPRISE.

If a party is surprised by any action at trial, such as the admission of evidence, he should immediately ask a reasonable postponement to enable him to produce counter evidence or move for nonsuit, in order to rely thereon for a new trial.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 195-198; Dec. Dig. § 97.*1

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11. ATTACHMENT (§ 308*) — ACTIONS-Burden OF PROOF.

In attachment proceedings involving the right to possession of hoops claimed by interpleader as purchaser from the debtor, the burden was on interpleader to show that it had taken actual possession upon purchasing as required by law.

[Ed. Note.-For other cases, see Attachment, Cent. Dig. §§ 1102-1109, 1111-1113; Dec. Dig. § 308.*]

Appeal from Circuit Court, St. Genevieve County; Peter Huck, Judge.

Action by J. M. Byrd against W. F. Vanderburgh, in which the Bank of Marston interpleaded. From a judgment for plaintiff, interpleader appeals.

Affirmed.

The controversy here is between the plaintiff, Byrd, an attaching creditor of defendant Vanderburgh, and the Bank of Marston, interpleader in the attachment suit, and involves the right to the possession of a quantity of hoops piled in the hoop sheds of the Marston hoop mill at Marston, Mo. The issues made upon the bank's interplea were tried to the court, jury being waived, and were found in favor of the plaintiff, the attaching creditor, as to all the hoops except some, which, when attached, had been loaded into a railroad car for shipment. The bank, interpleader, has appealed to this court. It claimed the right

to the possession of the hoops under and by virtue of an instrument in the form of a bill of sale to it which was executed by defendant Vanderburgh on February 11, 1909, to secure certain advancements made and to be made by the bank, and purporting to transfer to the bank all hoops then in said sheds and all that might thereafter be manufactured by said mill or piled in said sheds or thereabout. It is conceded that neither the said instrument nor a true copy thereof was recorded or filed in the recorder's office. Up to Saturday, May 15, 1909, all the hoops remained in the hoop sheds, where they had been placed and kept by Vanderburgh while concededly in his possession. Part of them had been manufactured before the "bill of sale" was executed and part thereafter. The bank does not appear to have had possession or control of the sheds. They were appurtenant to the hoop mill which defendant Vanderburgh operated. On Saturday, May 15, 1909, the bank caused part of the hoops to be loaded on a car for shipment to a buyer whom Vanderburgh had found, he says, for the bank. The buyer's order for the car of hoops was addressed to the bank. A bill of lading issued in the name of the buyer. This loading was done by one Nelson, Vanderburgh's foreman, who was, however, according to the bank's evidence, employed by the bank for such loading. The hoops not so loaded remained in the sheds. On Monday, May 17, 1909, the hoops in the sheds as well as those on the car were levied on under the writ of attachment. The sole question upon the trial was whether the bank had taken possession of the hoops in the manner required by statute, before the attachment was levied. The cashier of the bank testified on its behalf that several weeks before the attachment the bank caused the hoops to be marked "here and there all over the several piles, 'Property of the Bank of Marston'"; that the words "Bank of Marston" were put on with a rubber stamp, and the words "Property of" written with a lead pencil just above them. Ankersheil, assistant cashier, testified that he marked the hoops for the bank; that, in addition to the rubber stamp and lead pencil marking, he had written on sheets of paper the words, "Property of the Bank of Marston," and attached one or more of such sheets on each pile of hoops in the shed. On the other hand, W. A. Nelson, who had charge of the loading of the car for the bank, and J. D. Dockery, the constable who levied on the hoops, gave testimony on behalf of plaintiff, the attaching creditor, to the effect that the hoops were not marked by the bank until after the levy of the attachment. Dockery denied having testified before the justice of the peace that when he went to the shed he found the notices on the hoops. The grounds stated in the bank's motion for a new trial are as follows: "(1) Because the verdict and judgment is for the wrong party. (2) Be

(5)

trary to the greater weight of the evidence. (3) Because the verdict and judgment is contrary to the law and the evidence. (4) Because the court erred in sustaining in part the motion of the plaintiff, J. M. Byrd, in the nature of a demurrer as offered at the conclusion of the testimony of interpleader. Because the court erred in sustaining the motion of plaintiff, Byrd, offered at the conclusion of all the testimony. (6) Because the court erred in admitting incompetent and irrelevant testimony offered by plaintiff over the objection of interpleader. (7) Because the court erred in refusing to admit competent, material, and relevant testimony offered by interpleader. (8) Because witnesses for the plaintiff committed either perjury or mistake in testifying that the hoops involved in the suit were not marked by the interpleader prior to the levy of the attachment, as see affidavits filed herewith. (9) Because interpleader was surprised by the testimony offered by plaintiff to the effect that the said hoops were not marked when levy was made, as this fact was not denied at the hearing before the justice of the peace. Affidavits proving the contrary to be the fact are filed herewith."

Accompanying this motion were six affidavits, which, if accepted as absolutely true, would establish that the marking occurred prior to the levy of the attachment, and tended to prove that the plaintiff's witnesses, Nelson and Dockery, knew that such marking had been done. The affiants, however, do not agree with the bank's witnesses at the trial as to when such marking was done. None deposed that it was done more than two weeks before the attachment levy, and one deposed positively that only "several days" before the hoops were loaded into the car he saw Ankersheil doing the marking.

E. F. Sharp, of Marston, for appellant. Brown & Gallivan, of New Madrid, for respondent.

CAULFIELD, J. (after stating the facts as above). As the appellant, interpleader, does not claim that there is any error on the face of the record proper, we may only consider what has been finally passed upon by the circuit court on the motion for a new trial.

[1] The first ground stated in said motion is that "the verdict and judgment are for the wrong party," This, and that embodied in the third ground, viz., that the verdict and judgment are contrary to the evidence, are merely the statement in another form of the second ground, which is that "the verdict and the judgment are contrary to the greater weight of the evidence." State ex rel. Stewart v. Todd, 92 Mo. App. 1. See, also, Heine v. Morrison, 13 Mo. App. 577; State v. Scott, 214 Mo. 257, 113 S. W. 1069. [2] That is not a ground on which we may interfere with the judgment of the trial

[3] The statement in the third ground that the verdict and judgment are against the law is not sufficiently specific to compel consideration. State v. Scott, supra.

[4] The fourth ground relates to the action of the trial court in sustaining a demurrer to the evidence of the interpleader (appellant) as to the hoops loaded on the car. This action was taken at the conclusion of the testimony of the interpleader. But the judgment should not be reversed because of such action for the reason that it was for the interpleader as to those hoops, and whatever error was involved in sustaining the demurrer was thereby rendered harmless. The fifth ground is that the court erred in sustaining the motion of plaintiff offered at the conclusion of all the testimony. The record does not disclose that any such motion was sustained or offered.

must not arbitrarily be exercised, but must rest on a reasonable foundation of fact." Ridge v. Johnson, 129 Mo. App. 541, 107 S. W. 1103. See, also, Rickroad v. Martin, 43 Mo. App. 597; Sly v. Union Depot R. Co., 134 Mo. 681, 36 S. W. 235. In the case at bar there was nothing to satisfy the trial court that perjury or mistake had been committed by plaintiff's witness, except the testimony of interpleader's witnesses and the ex parte, and to some extent contradictory, affidavits, which interpleader filed with the motion for a new trial.

[8] Its determination of the matter must necessarily have depended upon its view of the mere credibility of the witnesses, with which it is not our province to interfere.

[9, 10] As to the ninth ground, viz., "interpleader was surprised by the testimony offered by plaintiff to the effect that the said hoops were not marked when levy was made, as this fact was not denied at the hearing before the justice of the peace," the following, quoted from the decision of our Supreme Court in Thiele v. Citizens' Ry. Co., 140 Mo. 319, loc. cit. 338, 41 S. W. 800, is a sufficient response: "It is a general rule that each party must understand his case and come prepared to meet the case made by his ad

[5] The sixth ground, that the court erred in admitting incompetent and irrelevant testimony offered by defendant over the objection of the interpleader, must be overruled because the record does not disclose that the interpleader saved any exception to any ruling on the admissibility of evidence offered by the plaintiff. The seventh ground is that the court erred in refusing to admit competent, material, and relevant testimony offer-versary. Therefore, a party cannot be sured by the interpleader. The only evidence offered by the interpleader which appears to have been excluded and exception noted was the bill of lading for the car load of hoops. [6] As this evidence related only to the hoops in the car, and the judgment of the trial court was in favor of the interpleader as to them, the error in excluding it, if any, must be held to have been harmless. This brings us to the eighth and ninth grounds stated, which are the principal grounds relied upon by appellant in urging that the judgment be reversed and a new trial granted. The eighth is that "witnesses for the plaintiff committed either perjury or mistake in testifying that the hoops involved in the suit were not marked by the interpleader prior to the levy of the attachment."

[7] The statute (section 2022, R. S. 1909) provides that the trial court shall grant a new trial if it "is satisfied that perjury or mistake has been committed by a witness, and is also satisfied that an improper verdict or finding was occasioned by any such matters, and that the party has a just cause of action or defense." "The purpose of this enactment is to clothe the trial judge, who enjoys the advantage of meeting the parties and witnesses face to face, with a wide discretion to be exercised in furtherance of substantial justice. IIe should be satisfied with the justice of the verdict, otherwise, it is his duty to set it aside. * With respect to the ground for a new trial under consideration, the judge is invested by the statute with the functions of a trier of fact, and his

*

prised that his adversary introduced testimony in support of the issues made by the pleadings, even though such testimony is false. Hayne's New Trial, par. 79. The rule is thus forcibly stated by Phillips, P. J., in Bragg v. City of Moberly, 17 Mo. App. 221: If a party be surprised by an unfore seen occurrence at the trial, he should make his misfortune known to the court instantly and ask for a reasonable postponement to enable him to produce the countervailing proof. If he can relieve himself from his embarrassment by any mode, either by a nonsuit or a continuance, or the introduction of other testimony, or otherwise, he must not take the chance of a verdict, but must at once fortify his position by resorting to all available modes of present relief.'" In the case at bar the only issue was whether the interpleader had taken such actual possession of the hoops as was required by law of a vendor, or of a mortgagee whose mortgage was not recorded or filed.

[11] As to this the interpleader had the burden of proof. In an attempt to sustain this burden, it introduced evidence to the effect that it had marked or branded the hoops as its property prior to the levy of the attachment. The testimony introduced by the plaintiff, which interpleader claims was a surprise, merely contradicted the testimony which the interpleader had previously introduced. It is clear under the general rule just quoted that the interpleader could not be surprised that his adversary introduced such testimony, and, if he was, it was its

ment.

at the trial, a thing which it neglected to do. [ that the person agreeing thereto on behalf of Recognizing the rules above quoted, the judg- the appellant had authority to make such agreement cannot be reversed on the ninth ground. It appearing then that the record is barren of error warranting a reversal of the judgment, the judgment is affirmed.

REYNOLDS, P. J., and NORTONI, J., con

cur.

GRANT CITY v. SIMMONS. (Kansas City Court of Appeals. Missouri. Nov. 25, 1912.)

1. COURTS (§ 66*)-TERMS-ADJOURNMENT.

Under Rev. St. 1909, § 3869, providing that, if after the commencement of a term of court, the court shall not be held, it shall stand adjourned from day to day until the evening of the third day, and that, if the judge of any court having but one judge cannot attend the regular term, he may notify the sheriff, who shall adjourn the court to the next regular term or to such special or adjourned term as the judge shall direct, where the judge of a court having but one judge was unable to attend a term, the sheriff had power only to adjourn the court until the next regular term and not to adjourn it from day to day until the evening of the third day.

[Ed. Note. For other cases, see Courts, Cent. Dig. §§ 231-242; Dec. Dig. § 66.*] 2. CRIMINAL LAW (§ 1092*)-BILL OF EXCEP TIONS-TIME FOR FILING EXTENSION "NEXT REGULAR TERM.'

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Defendant was given until the last day of the next term of court to file a bill of exceptions. The next term should have been held in February, and the following term in May. Owing to the absence of the judge, the February term was not held. Held, that she had until the last day of the May term within which to file her bill of exceptions, since the order extending her time did not give her to any particular day of the year, but to a certain day in the "next regular term," which meant a term at which the court was legally open for the transaction of business, and not the time at which it could and should have been open, but was not because of the absence of the judge.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2829, 2834-2861, 2919; Dec. Dig. § 1092.*

For other definitions, see Words and Phrases, vol. 5, p. 4804; vol. 8, p. 7732.]

3. MUNICIPAL CORPORATIONS (§ 642*)-APPEAL-MOTIONS TO DISMISS-EVIDENCE.

Under Rev. St. 1909, § 2083, providing that the Supreme Court and Courts of Appeals shall examine the record and award a new trial, reverse or affirm, or give such judgment as should have been given below, the court ordinarily is confined to an examination of the record, and cannot receive evidence de hors the record on any controverted issue, but, on a motion to dismiss the appeal, such evidence may be received to show that by a settlement there is no longer a real controversy before the court.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1412-1415; Dec. Dig. 642.*]

4. MUNICIPAL CORPORATIONS (§_642*) — APPEAL-MOTIONS TO DISMISS-HEARING AND DETERMINATION.

A party moving to dismiss an appeal on the ground of a compromise or settlement has the burden of showing such compromise and

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1412-1415; Dec. Dig. § 642.*]

5. ATTORNEY AND CLIENT (§ 89*)-AUTHORITY-CONDUCT OF LITIGATION.

An attorney may dismiss his client's suit or stipulate that it shall abide the judgment in another suit where the facts and parties are the same in the two actions and, under his general authority, has a wide range of action as to those things pertaining merely to the remedy.

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 133, 134, 139, 140, 167, 168; Dec. Dig. § 89.*]

6. ATTORNEY AND CLIENT (§ 101*)-AUTHORITY SETTLEMENT OR COMPROMISE.

An attorney's general authority, as such, gives him no power to compromise his client's claim or demand or to make any agreement or take any action that will sacrifice his client's cause.

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 209-216; Dec. Dig. § 101.*]

7. ATTORNEY AND CLIENT (§ 101*)-AUTHORITY-DISMISSING APPEAL.

Where a stipulation by an attorney to dismiss an appeal was merely an incident to an unauthorized compromise of the case by him, it related rather to the cause than the remedy and was unauthorized.

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 209-216; Dec. Dig. § 101.*]

S. PRINCIPAL AND AGENT_ (§ 113*)-POWERS OF AGENT-CONDUCT OF LITIGATION.

Accused's father, who managed and conducted her defense, as agent, had no authority to bind her by an agreement to dismiss an ap peal from a judgment of conviction and pay the costs if the amount of the fine was remitted.

[Ed. Note.-For other cases, see Principal and Agent, Dec. Dig. § 113.*] 9. MUNICIPAL CORPORATIONS (§ 635*)-V10LATION OF ORDINANCE-CIVIL OR CRIMINAL. dinance is a civil and not a criminal case. A prosecution for the violation of a city or[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1400, 1401; Dec. Dig. § 635.*]

10. MUNICIPAL CORPORATIONS (§ 640*)-DEGREE OF PROOF-VIOLATION OF ORDINANCE.

A person prosecuted for a violation of a municipal ordinance, which is also an offense under the public laws of the state, is entitled to the benefit of the guaranties that attend one accused of crime, and is therefore entitled to the presumption of innocence and to have his guilt established beyond a reasonable doubt. [Ed. Note.-For other cases, Corporations, Cent. Dig. § 1410; Dec. Dig. § see Municipal 640.*]

11. CRIMINAL LAW (§ 830*)-INSTRUCTIONS— REASONABLE DOUBT.

Where defendant's guilt is required to be established beyond a reasonable doubt, the court must give a proper instruction on the question of reasonable doubt, although the one requested is faulty.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2012, 2017; Dec. Dig. § $30.*]

Appeal from Circuit Court, Worth County; William C. Ellison, Judge.

Effie Simmons was convicted of the viola

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