decency within the prohibition of the ordi- [ent bold. State ex rel. v. Smith, 176 Mo. 44, nance. The charge against defendant was loc. cit. 48, 75 S. W. 468; Carthage v. Block, that, contrary to the ordinance, he was on 139 Mo. App. 386, 123 S. W. 483; City of St. the street associating with Edna Geery, a Louis v. Roche, 128 Mo. 541, 31 S. W. 915. female of ill repute. The motion to quash pre- This court, for the reason mentioned, is sented the following grounds: without jurisdiction, and the case, therefore, is transferred to the Kansas City Court of Appeals..

"(1) Because the ordinance upon which the complaint was based is unconstitutional and void, and infringes upon the rights of personal liberty, and is void.

"(2) Because said complaint charges no crime known to the law, and there is no authority or law on which to base said ordinance, or a complaint on said ordinance, because said ordinance

is unconstitutional and void.

"(3) Because the ordinance upon which the complaint is based is absolutely unconstitutional; and it invades the personal rights of a citizen, and the complaint is therefore void."

ROY, C., concurs.

PER CURIAM. The foregoing opinion by WHITE, C., is adopted as the opinion of the court. All the Judges concur.

(No. 20332.)

STATE v. BLACKBURN. (Supreme Court of Missouri, Division No. 2. Feb. 16, 1918.)

The order sustaining this motion states as a reason for the ruling "that the ordinance on which the complaint is based is unreasonable and unconstitutional, and the complaint charges no crime or violation of the 1. CRIMINAL LAW 415(1) — HEARSAY EVIlaw."

DENCE.

deceased's efforts to collect a check drawn in In a trial for murder committed following his favor by defendant in payment for cattle, and which had not been paid, testimony of certain witnesses as to deceased's statements in regard to the defendant and the collection of the check, to the effect that he sold the cattle and held defendant's check, and that the funds were not at the bank to pay the check, and that defendant had promised to arrange for payment in a few days, and that defendant had shipped the cattle without his knowledge, and that defendant could not pay for what he already had, was hearsay and incompetent.

2. CRIMINAL LAW 419, 420(6)-EVIDENCE

The appellant, though not moving to transfer the case, claims that this court has no jurisdiction because the constitutional question which alone would give jurisdiction was not properly raised by the motion to quash. It often has been held by this court that in order to give this court jurisdiction on the ground that the constitutional question is raised, the provision of the Constitution involved must be pointed out. A general reference to the Constitution, state or federal, will not do. The party asserting the jurisdiction "must come into the open and put his RELEVANCY. finger on the specific provision of the Consti-ed that his check to deceased was not intended In such prosecution, where defendant claimtution touched by the adverse ruling" of to be paid, but was made merely to conceal a which he complains. Lohmeyer v. Cordage land sale, the state might show defendant's inCo., 214 Mo. loc. cit. 688, 113 S. W. 1108; tention by showing his language or conduct in reference thereto. Independence, to Use, v. Knoepker et al., 205 Mo. loc. cit. 343, 103 S. W. 940; Ash v. City of Independence, 169 Mo. loc. cit. 79, 80, 68 S. W. 888; Excelsior Springs, to Use, v. Ettenson, 188 Mo. loc. cit. 132, 86 S. W. 255; St. Joseph v. Life Ins. Co., 183 Mo. loc. cit. 7, 81 S. W. 1080; State v. Kuehner, 207 Mo. 605, 106 S. W. 60; Street v. School District, 221 Mo. loc. cit. 671, 120 S. W. 1159; State v. Cook, 217 Mo. 330, 117 S. W. 30; Pickel v. Pickel, 243 Mo. 641, 147 S. W. 1059; State v. Swift & Co., 270 Mo. 694, 195 S. W. 996; State ex rel. v. Tibbe Elec. Co., 250 Mo. 522, loc. cit. 527, 157 S. W. 635.

The allegation in the motion that the ordinance "invades the personal rights of the citizen and the complaint is therefore void" does not necessarily refer to any constitutional provision. The ordinance could have that infirmity if it were unreasonable, or oppressive, or ultra vires, or repugnant to some general statute or contrary to some general rule of law. It could be held invalid for any of those several reasons without any reference whatever to the Constitution, as some of the authorities cited by respond

3. CRIMINAL LAW 419, 420(1)-EVIDENCE

-HEARSAY.

The intent of a person may be shown by his acts and words, which are direct and not hearsay evidence as to such intent.

4. CRIMINAL LAW 393(1)—SELF-INCRIMINATION-CONSTITUTIONAL RIGHTS.

In a trial for murder, the admission of evidence as to the alleged statements of defendant at the coroner's inquest to which he had been sum moned by the state, where he was not represented by counsel, nor informed of his right to refuse to answer questions, and was subjected to a long, adverse examination under suspicion of the crime, was error, as defendant's constitutional protection against compulsory self-crimination was thereby denied.

5. HOMICIDE 169(2) — EVIDENCE - RELE

VANCY.

In a trial for murder committed after deceased's efforts to collect a check given to him by defendant in payment for cattle, where de fendant claimed that deceased had purchased his farm and given him the check in part pay, ment thereof, but where the making of such con tract was not conceded by the state, evidence as to the value of defendant's farm was admissible to show that no such contract was made, on the theory that a good business man would not have contracted to pay $11,500 for a farm not worth over $7,500.

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

6. HOMICIDE

174(1)-EVIDENCE-FAILURE | been shipped, presented to the bank for payment a check drawn in his favor by the

TO JOIN IN SEARCH FOR DECEASED. In a trial for murder, it was not error to permit the state to show that the defendant took no part in the search for the deceased, the weight of such evidence being for the jury. 7. HOMICIDE

OF EVIDENCE.

defendant for $1,200. It was not paid for lack of funds to the defendant's credit. It was left with the bank for collection. On 250-MURDER-SUFFICIENCY the next day, Tuesday, November 9, Francis

Evidence held sufficient to support a convic tion for murder.

met Evans, the cashier of the bank, at a sale in the country, and was informed by the latter that the defendant had shipped the

Appeal from Circuit Court, Camden Coun. cattle. That evening, about sundown, Franty; C. H. Skinker, Judge.

Charles Blackburn was convicted of murder, and he appeals. Reversed and remanded for a new trial.

Defendant was charged by information with the murder in the first degree of Jasper Francis on November 10, 1915. He was convicted, and his punishment fixed by the jury at life imprisonment. He has appealed.

The evidence for the state tends to show the following facts: Both the deceased and defendant were farmers and stockmen, with farms on the same road leading out of Stoutland, the defendant's being about 21⁄2 miles from town, and that of Francis being about 4 miles further on. The deceased was a bachelor, about 46 years old, in comfortable circumstances financially, a director in the bank at Stoutland. The defendant was about 43 years old. His farm contained 260 acres and was worth about $7,500. His wife owned a house and about 5 acres of land in town, where they lived. He spent much of his time on the farm, often passing the night there. His farm was incumbered for $4,000 and some interest. The home in town was incumbered for $2,000, and he owed the bank about $3,000 in notes signed by himself and wife.

cis was in Stoutland. Evans was a witness for the defendant. On cross-examination he was asked what Francis said and did at that time with reference to the collection

The

of that check. Defendant's counsel objected on the ground that it called for hearsay evidence which was not a part of the res gestæ, and not a dying declaration. objection was overruled, and the witness stated that he and the deceased talked about why the returns for the cattle were not there, and that deceased stated that he would wire the commission company to find if the cattle had been sold and where the returns hac been sent, and that deceased went to the station to see the agent, saying, after seeing the agent, that he would go by Blackburn's and tell him that something had to be done. Over similar objections by defendant, the state was allowed to prove by Reube Winfry that deceased spoke of the $1,200 check, and said that he thought that Blackburn and was allowed to prove by Rolla Smith, was trying to cheat him out of the cattle; assistant cashier of the bank, that deceased in the bank, on November 9, said that if the returns did not come by morning he would garnish everything that Blackburn had; and was allowed to prove by John Fry, station agent at Stoutland, a conversation with Francis as follows:

The bank was pressing him for a payment of at least a portion of that money. About October 30, 1915, defendant and deceased made a trade by which deceased sold and delivered to defendant cattle for "Q. What is it? A. He asked me if Charley $1,400, and received in part payment thereof Blackburn had shipped the car of cattle. I a span of mules at $200. It seems that de- told him he had; that he had shipped them on fendant did not then pay the balance of $1,- he had shipped them to. the Sunday previous. Then he asked me who I told him to Clay200 due on the cattle. Rolla Smith, assistant Robinson & Co. He then wanted to wire to cashier of the bank, testified that in the latter Clay-Robinson & Co. in regard to the returns. part of the week preceding the death of The hour was late, and I recommended him, on Francis the latter appeared in the bank, ask- account of the lateness of the hour, to wait or put it off until morning, when probably the ed the amount of the defendant's indebted- returns would get in; that it would not be ness to the bank, and was informed that it necessary to wire, and, even if he did, it would was about $3,000; whereupon Francis said: be about the same time in the morning before the message would be delivered if it was sent at "Charley has sold his farm and has got the that late hour of the day. He said then he bepaper and you boys want to get your money. lieved he would do that, and that he would go I know he has sold his farm, because I wrote up the note for him and check a few days ago. he state anything else? Is that all of his stateover and see Virgil Evans at the bank. Q. Did The note is for $3,000 and the check for $1,500.ment to you at that time? A. No, sir; that was He has sold his farm to Joe Givins, and is receiving this note and check for $1,500, and he is assuming $3,000 against the land, making $7,500. Your note will be due the first thing, and you boys want to get in and get your money."

On Sunday, November 7, the defendant shipped the cattle to the St. Louis market, ordering the returns to be sent to Lebanon instead of to the bank at Stoutland. On the next day Francis, not knowing that the cattle had

not all that was said. Q. Did he state why he A. He told me he had exchanged the cattle with was anxious to wire to Clay-Robinson & Co.? Charley Blackburn for $1,200 and two mules; that he held Blackburn's check for $1,200, and the funds were not yet in the bank to pay the check; that Blackburn had said to him he would arrange for the money, and that it would be in there in a few days. He said as long as he did not care, but since he has shipped them the cattle were running upon Blackburn's land I am going to do something about it.""""

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

And by Charles Winfry a conversation not advised of his right to refuse to answer with Francis as follows: questions, nor was he advised that his an"Q. Yes, sir. A. When we started from the swers might be used against him. He was sale he says: 'Charley Blackburn has shipped there treated as a defendant. At the trial those cattle, and I did not know anything about it until I got down here to the sale.' He said: the state was permitted to prove that the 'Virgil Evans told me,' He said: 'He was at defendant, in answer to questions at such my house this morning, and he never told me a inquest, stated that he gave the check for word about it. He said he was going to Joe $1,200 to Francis for cattle, and also said Givins' to see about the money that Joe had sent, and sent to the wrong place; it is a funny that the two $1,200 checks were given as a thing to me that he don't know where Stoutland bonus in a land deal. Defendant objected to is at. He says: 'I am going on to town and such evidence on the ground that such statesee if that draft has come; if not, I am going ments were not, under the facts shown, volback by Charley Blackburn's and tell him what is what; I am not going to lose my money on untary. The objection was overruled. The those cattle.' He says: 'I will garnishee every- defendant, on the trial, testified that about thing he has got before to-morrow night if I October 30, 1915, he sold his farm to Francis don't get the money; all I have got to show is the two little mules and this check' that he for $11,500, to be paid thus: had up at the bank. He said Charley Black-Balance on cattle... burn was talking of buying his place, but he could not pay for what he already had."

We have put in italics portions of that evidence to which we will call special attention in the opinion.

The last seen of Francis alive was as

Check
Note

Francis to assume on land.
give mortgage for.

$ 1,200 00

1,500 00

3,000 00

3,000 00

2,000 00

$10,700 00

he was on his way home just as he was leay--and that Francis was to pay balance in ing town that evening. About 12 days later money. He stated that a few days after such his dead body was found about 20 yards from deal Francis wrote, signed, and delivered the road, between the defendant's house and to him the note for $3,000 and the check for town, covered with leaves. There was a shot $1,500; that Francis made a memorandum of in the head, and the skull was fractured by some other weapon. There was clotted blood by the roadside. Mrs Kissinger, who lived near the place, testified to hearing a gun shot about the place where the death occurred, on the morning of November 10, about 5 o'clock.

Claude Castile and his wife testified that they lived next door to the defendant in town, and that on the morning of November 10, about 6 o'clock, they saw defendant in his yard in town, and that, in reply to a question, he told them that he had come in town that morning.

On November 11 the defendant appeared at the bank, having in his possession a note for $3,000 dated October 30, 1915, due 60 days after date, a check for $1,500 dated November 2, 1915, and a check for $1,200, dated November 6, 1915. All those instruments were payable to himself, and purported to be signed by Francis. He exchanged with the bank the $1,200 check signed by Francis for the $1,200 check signed by himself, which was then held by the bank for collection. He exchanged the note for $3,000 signed by Francis for his own notes to the bank. The $1,500 check signed by Francis was put to defendant's credit, thereby overdrawing the account of Francis, and a few days after he checked out the most of it.

Soon after the discovery of the dead body, the coroner's inquest was held. The examination of witnesses at that inquest was conducted by state's counsel, who suspected defendant of the offense. The defendant was subpoenaed and sworn as a witness and submitted to a long and adverse examination. Everything he said was in answer to such questions. He was without counsel, and was

During

the contract, but that it was not signed by
either of them; that they were to close the
deal and make the deed later on.
his direct examination he was asked why the
two $1,200 checks were given. He answered
that Francis desired to keep secret for a few
days the fact that he had bought defendant's
farm, for fear that if such fact should be-
come known it might prevent the sale which
Francis desired to make of his own farm.
As to his conversation with Francis he testi-

fied:

for the cattle?' that is, for the difference be"He said, 'Would you care to give me a check tween the mules and the price of the cattle. He told me to give him that $1,200 check and he would take it up to the bank and turn it over to the cashier, Virgil Evans, and he would tell Virgil about mine and his deal. He said he would put the check in there, and if any one come in there and said anything to Virgil about Jap buying my farm and about the cattle and them this check, which would show that he had mules being changed he said Virgil could show sold the cattle to me. So when he was talking about my giving him a check I told him it would be all right I guessed; that I didn't know there that book up this way (indicating), and began would be anything wrong about it. He opened to write out a check for $1,200 for me to sign. Just about the time it was completed I says Jap, how would it do for me to write out a check for you and you sign it, and let me have your check and you hold mine?" So we agreed to that; we agreed to do it in that way. That is the way the $1,200 check business came up."

He stated that such transaction occurred November 6th.

Simpson Francis, a brother of the deceased, testified that on Sunday, after the deceased disappeared, he called up the defendant, asking him if he had seen the deceased, and that defendant answered:

"He was going to meet me in Lebanon, but he didn't go. I guess you don't know what we were

defendant against compulsory self-crimination was thereby denied. It was so held in State v. Young, 119 Mo. loc. cit. 520, 24 S. W.

STATE v. MUNROE. (No. 20649.)

1038; State v. Naughton, 221 Mo. 398, 120 (Supreme Court of Missouri, Division No. 2.

S. W. 53; State v. Lehman, 175 Mo. 619, 75
S. W. 139.

[5] III. Defendant contends that the admission of evidence as to the value of his farm was error. It is contended that the question of such value is one solely of contract between the parties thereto, and that it is of no concern to any one else. That may be conceded, perhaps, where the existence of the contract is not in controversy. The making of such contract is not conceded by the state, and such evidence is competent for the purpose of showing that no such contract was ever made, on the theory that a good business man would not probably contract to pay $11,500 for a farm not worth over $7,500.

[6] IV. Defendant likewise contends that it was error to permit the state to show that the defendant took no part in the search for the deceased. We are cited to State v. Gordon, 199 Mo. loc. cit. 592, 98 S. W. 47, where it was said:

"Again, our attention is directed to the circumstance that the defendant, upon seeing his wife lying motionless and dead, did not call to her, nor did he touch her or the gun. We dare say that if conditions similar to those confronting the defendant upon the morning his wife was killed should surround a hundred men, no two of them would act alike. There is no accounting for the conduct or actions of a man under the circumstances surrounding the defendant at the time he went into the kitchen and found his wife dead, and his conduct and actions at that time, under conditions confronting him, in our opinion, are of little significance. No man can tell what would be the actions of a person similarly situated; therefore we are unwilling to attach to the conduct and actions of the defendant at that time the importance that learned counsel for respondent so earnestly insist upon."

The context shows that the court was there

discussing the sufficiency of the evidence to
sustain a conviction. The admissibility of
such evidence was not discussed.
It was

there said that it was "of little significance."

We hold that the failure of the defendant in this case to join in the search for the deceased was a competent circumstance to be shown in evidence. Its weight was for the jury.

[7] V. Defendant contends that there is no sufficient evidence to support a conviction. We are sorry to say that we are of a contrary opinion. The judgment is reversed, and the cause is remanded for a new trial.

WHITE, C., concurs.

PER CURIAM. The foregoing opinion of ROY, C., is adopted as the opinion of the court. All the Judges concur.

Feb. 16, 1918.)

Under Rev. St. 1909, § 4585, making it an offense for officers of a banking institution, or "owner, agent, or manager" of a private bank, institution is insolvent or in failing circumto receive deposits knowing that such banking stances, or the "owner or owners of any such private bank" is insolvent or in failing circumstances, an indictment against the managing officer of private bank must allege, and the proof must show, that the owner of such private bank was insolvent or in failing circumstances. 2. BANKS AND BANKING OFFICERS-ELEMENTS.

84-OFFENSES BY

To warrant conviction of the offense defined by Rev. St. 1909, § 4585, of receiving a deposit knowing a private bank to be insolvent, it is not necessary that accused should have had ultimate authority in managing the bank, if he was in fact intrusted with the duty of receiving deposits, since he was then the agent of the owner.

3. CRIMINAL LAW 369(1) EVIDENCE OF OTHER OFFENSES-ADMISSIBILITY.

In prosecution of a banking officer for receiving deposit knowing that bank was insolvent, testimony of other deposits just preceding the one involved was inadmissible, each deposit constituting a separate offense.

4. INDICTMENT AND INFORMATION
MULTIPLE COUNTS-PROPRIETY.

128

In drawing an information under Rev. St. 1909, § 4585, making it an offense for a banking officer to receive a deposit of money or other valuable thing knowing the bank to be insolvent, it is proper by using two counts to charge the deposit of a draft as a deposit of money and as a deposit of a valuable thing.

Appeal from Circuit Court, Jefferson County; E. M. Deering, Judge.

Robert B. Munroe was convicted of receiv

ing a bank deposit knowing the bank was insolvent, and he appeals. Reversed and remanded for a new trial.

Defendant was tried in the circuit court of

Jefferson county upon an indictment charging him with having, as agent of a certain private bank, received a deposit of money knowing that said bank was at the time insolvent and in failing circumstances. Being convicted upon this charge, he has, after the usual motions, appealed.

Such of the facts as are necessary to an understanding of the points raised upon this appeal run substantially thus: On and prior to the 9th day of April, 1915, one Otis M. Munroe, the father of defendant, was the owner of a private bank in the town of De Soto, known as the Jefferson County Bank. Defendant was and had been for some years employed in this bank, and had assumed the title of assistant cashier. The deposit for the receipt of which defendant was convicted was made on the 1st day of April, 1915, and consisted of a draft for the sum of $800, drawn by a building and loan association of

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