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(273 S.W.) this case, it must be shown that the Simms heirs had actual knowledge of the will, or of

STATE V. McGRAY et al. (No, 26182.) such facts as would have suggested its proba- | (Supreme Court of Missouri, Division No. 2. ble existence and put a man of ordinary dil

June 5, 1925.) igence upon inquiry. Shanklin v. Ward, 291 Mo. 1, 18, 236 s. W. 64. The proof fails to Criminal law em 508(3)-Witness jointly inshow that they had any such knowledge.

dicted with defendants is incompetent to tes.

tify for state. (8] IV. Appellants assert that they are not concluded by the judgment in Simms V.

In view of Rev. St. 1919, § 4035, witness Thompson because that judgment was not jointly charged with defendants in information

is incompetent to testify for state. rendered on the merits, in this, that the Catron will under which they claim title was

Appeal from Circuit Court, Jackson Counnot brought to the attention of the court and ty; Thos. B. Buckner, Judge. consequently could not have been considered

O. W. McGray and another were convicted by it. But the contention that the judgment of robbery, and they appeal. Reversed and was not on the merits is obviously unsound. remanded. The petition alleged, and the court, from the

Edgar J. Keating, of Kansas City, for apevidence offered on the hearing, found, that

pellants. the plaintiffs were the owners in fee simple Robert W. Otto, Atty. Gen., and J. Henry of the land and that the defendants had no Caruthers, Asst. Atty. Gen., for the State. rights, title, or interest of any kind or character therein. Although appellants' claims

Statement. as remaindermen may not have been presented to the court, and although no specific find

RAILEY, C. The information on which ing was made with respect to such claims, this case was tried, omitting caption and the judgment is none the less binding upon

verification, reads as follows: them. "If the determination of a question "Now comes H. P. Ragland, assistant proseis necessarily involved in the judgment, it is cuting attorney for the state of Missouri, in immaterial whether it was actually litigated and for the body of the county of Jackson, and or not.” 1 Freeman on Judgment (4th Ed.) upon his oath informs the court that Thomas § 272. "The judgment, so long as it stands, Sam I. Barnett, whose Christian names in full

W. Asbury, Lloyd Spencer, C. W. McGray, and imports absolute verity as to every proposi- are unknown to said prosecuting attorney late tion of law and fact essential to its existence of the county aforesaid, on the 28th day of against all parties to it, and every proposi- July, 1924, at the county of Jackson, state of tion assumed or decided by the court leading Missouri, with force and arms, in and upon up to the final conclusion and upon which such one Tony Lenge, unlawfully and feloniously conclusion is based is as effectually passed did make an assault, and one diamond setting upon as the ultimate question which is final- ring, one cape, one white gold wrist watch, ly solved. 15 R. C. L. 977; State v. McDon- $10 in lawful money of the United States, $13

$193 in lawful money of the United States; ald, 108 Wis. 8, 84 N. W. 171, 81 Am. St. Rep. in lawful money of the United States, one 878. The causes of action pleaded in the Buick touring car automobile, of the value of fourth and fifth counts of the petition are $1,463, of the money and personal property therefore res adjudicata.

of the said Tony Lenge, from the person, in [9] In their brief, appellants have quoted the presence and against the will of the said extensively from authorities dealing with the Tony Lenge, then and there by force and vioquasi trust relation existing between life lence to the person of the said Tony Lenge, tenants and remaindermen as a basis for and by putting the said Tony Lenge in fear of

an immediate injury to his person, feloniously their contention that whatever title the did rob, steal and carry away; against the Simms heirs acquired under the judgment peace and dignity of the state. in Simms v. Thompson inured to those who

“H. P. Ragland, under the will of Minitree Catron took as re

“Assistant Prosecuting Attorney." maindermen. But the argument overlooks the patent fact that by such judgment it was

It appears that a severance was granted finally determined with respect to the land defendant Lloyd Spencer. The other three


arraigned and entered in question that there were neither life tenants nor remaindermen, but that the Simms pleas of not guilty. A trial was had before heirs were the owners of the entire fee.

a jury on September 22, 1924, and the followThe conclusions we have reached supra

ing verdict returned: render it unnecessary to determine whether “We, the jury, find the defendant C. W. Mcthe causes of action pleaded in the petition Gray and Sam I. Barnett guilty of robbery in are barred by the several st tes of limita- the first degree as charged in the information, tion pleaded, or any of them.

and leave the punishment to the court. The judgment of the circuit court is af

"Frank Dowd, Foreman." firmed.

Thereupon the court fixed the punishment All concur.

of each of above defendants at 15 years in Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


the state penitentiary. Thereafter, said de- y had taken, and McGray told him he wanted fendants, McGray and Barnett, filed motions $25 to buy the watch back, as he could refor a new trial and in arrest of judgment, turn it to the owner. Witness gave him $10 both of which were overruled. Thereafter in the presence of his brother, Archie Asbury, judgment was rendered and said defendants and later sent him $5 by his brother Archie. appealed to this court.

Witness did not send the articles stolen back A serious question is raised by appellants to the owners by a messenger boy. as to the competency of their codefendant, The evidence on behalf of the defendants Thomas W. Asbury, to testify as a witness tended to prove the following: That Amelia in behalf of the state, over their objection, Allen, a bookkeeper and stenographer for while he was jointly charged with appel- the Eastern Auto Radiator Company, who lants, and without having been discharged lived in the same house with the defendunder the provisions of section 4035, R. S. ants, saw these defendants on the night of 1919. The testimony on the part of the July 28th at 1305 Cherry street; that she state and defendants, including that of talked to them as late as 12 o'clock that Thomas W. Asbury, is correctly and substan- night and then went to her room; that it tially stated by counsel for respondent, as was probably 30 minutes after she left them, follows:

before they went to their room, and they did That between 1:30 and 2 o'clock on the not leave any more that night; that if they morning of the 29th of July, 1924, Tony had left she could have heard them, as her Lenge, his wife, Mabel Lenge, Miss Anna room was right next to theirs. Jones, and Charles Cochrane drove up to The instructions and rulings of the court, the Lenge garage at the back of their apart as far as necessary, will be considered in ment at 1215 East Tenth street, Kansas City, the opinion. Jackson county, Mo., and as Mrs. Lenge got

Opinion. out of the Buick touring car, in which they

1. It is contended by appellants that the were riding, to open the garage doors, three

court erred in permitting Thomas W. Asmen stepped from behind the garage, covered bury to testify as a witness for the state, · them with guns, and ordered "hands up,”

over the objections and exceptions of apand the three bandits, who had handkerchiefs tied over their faces, got in the car. pellants, while he was still jointly charged

with appellants in the same information. As they started to drive away, another

At the trial, Thomas W. Asbury was sworn man stepped up on the running board and, as a witness for the state, and thereupon H. as he stepped up, his mask dropped off, and P. Ragland, assistant prosecut..g attorney, Tony Lenge recognized him to be Thomas who filed the information, suggested to the Asbury, whom they had known for some court that Asbury was a codefendant and time. Asbury, upon being recognized jumped could not testify for the state as long as off the car and left. The other three bandits this charge stood against him. The court drove the car on down to Thirteenth and ruled that Asbury could not be made to testiIllinois and then ordered the witness and fy, but could do so of his own volition. his three companions to get out. They

Thereupon counsel for appellants objected obeyed and walked about a half block and to the competency of Asbury as a witness called the police. They then got in a car

for, the state under the circumstances aforeand drove home. The bandits took $193 said. This objection was overruled and an from Mrs. Lenge, $4: from Mr. Lenge, $13 exception saved to this ruling. Thereupon from Anna Jones, and $10 from Charles the court said: Cochrane, together with a wrist watch, a cape, a diamond ring, and some pearl beads.

"Mr. Asbury, you are one of the codefendAll the articles except the money were re- fendants on trial for this offense. You cannot

ants in this case, charged jointly with the deturned to the owners by a messenger boy be compelled to testify or to incriminate yourabout 10 days later.


Constitution guarantees you that None of the witnesses who testified for the protection, but if you desire to testify volunstate, except Thomas Asbury, were positive tarily you have the right to do so." as to the identification of either of the defendants. The only one they were positively With the above knowledge imparted to able to identify was Thomas Asbury.

Asbury by the court, he voluntarily testified It was shown by Thomas Asbury, a co as a witness for the state while being jointly defendant, that on the night of the 28th of charged with appellants. Counsel for the July he, defendants McGray and Barnett, state, in their brief, concede that Prosecutor and a man named Spencer, were at the Ragland was right, and that error was comLenge garage on the night of the robbery mitted by the court in permitting Asbury to when the Lenges and their companions drove testify as a witness for the state, over the up in their car; that witness stepped on the objection of appellants, while he was still running board of the car, and after staying jointly charged with them in the informathere about 20 or 30 seconds jumped off and tion. went on home. Witness had a conversation We are clearly of the opinion that both with defendant McGray about the watch he Ragland and counsel for respondent reached

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(273 S.W.) correct conclusions in holding that Asbury | city and going into Illinois; it being self-servwas an incompetent witness for the state ing statement. under the circumstances aforesaid. Section

3. Criminal law w 364(5)-Self-serving state. 4035, R. S. 1919; State v. Chyo Chiagk, 92 ment held not part of res gestæ. Mo. 395, 4 S. W. 704; State v. Steifel, 106 Defendant's statement to officer at time latMo. 129, 17 S. W. 227; State y. Weaver, 165 ter took revolver from defendant's coat pocket Mo. loc. cit. 12, 65 S. W. 308, 88 Am. St. that he was leaving city and going into Illinois Rep. 406; State v. Conway, 241 Mo. 271, 145 | was not part of res gestæ. S. W. 441; State y. Walls, 262 Mo. loc. cit. 110, 170 S. W. 1112; State v. Reppley,

4. Weapons em 17(1)-No variance between ev.

idence of carrying weapon on person and 278 Mo. 337 et seq., 213 S. W. 477; State v.

charge of carrying it concealed about person. Seward (Mo. Sup.) 247 S. W. loc. cit. 154;

Where gravamen of offense, under Rev. St. State v. Hayes (Mo. Sup.) 247 S. W. 165.

1919, § 3275, was carrying weapon concealed Section 4035, R. S. 1919, provides, that, on or about the person, there was no material "When two or more persons shall be jointly variance between allegations of information indicted or prosecuted, the court may, at any charging that defendant carried a weapon contime before the defendants have gone into cealed about his person and proof that he cartheir defense, direct any defendant to be dis- ried it on his person, in view of section 3907. charged. that he may be a witness for the state.

Appeal from St. Louis Circuit Court; John

W. Calhoun, Judge. The plain provisions of this statute, and the above cases construing same, leave no

Ray Renard was convicted of carrying a room for cavil or doubt as to the incompe- revolver concealed about his person, and he tency of Asbury to testify as a witness for appeals. Affirmed. the state over the objection of appellants on Jesse W. Barrett, Atty. Gen. (Ellison A. the facts disclosed in this record. The trial Poulton, of Canton, of counsel), for the court committed reversible error in permit- State. ting Asbury to testify for the state over defendant's objection while he was still jointly

HIGBEE, C. The defendant was convicted charged with appellant in the information. of carrying a revolver concealed about his

II. We have fully considered the other person, and his punishment assessed at immatters discussed by appellants in their prisonment for nine months in the city brief; but as they are not likely to arise on jail in accordance with the verdict of the the retrial of the case, we have not deemed jury. it necessary to review them here.

The defendant was arrested on February On account of the error heretofore pointed 20, 1923, as he was driving his car on the out, the cause is reversed and remanded.

street in the city of St. Louis, and as he

got out of the car the officer found a loaded HIGBEE, C., concurs.

revolver concealed in the pocket of defend

ant's coat. PER CURIAM. The foregoing opinion of

(1) The information is based on section RAILEY, C., is adopted as the opinion of 3275, R. S. 1919. It charges the offense in the court.

the language of the statute and sufficiently All of the Judges concur.

charges the defendant with the felony of carrying a dangerous and deadly weapon concealed about his person. State v. Jack

son, 283 Mo. 18, 222 S. W. 746, and State v. STATE V. RENARD. (NO. 25643.)

Whitman (Mo. Sup.) 248 S. W. 937.

[2, 3] The chief error assigned in the mo(Supreme Court of Missouri, Division No. 2. tion for new trial is that the court erred in June 5, 1925.)

not permitting the defendant to prove on 1. Indictment and information om 110(38)—In the cross-examination of the officer that at formation in language of statute charged fel. the time the officer took the revolver from ony of carrying concealed weapon,

the pocket of the defendant's coat the deInformation in language of Rev. St. 1919, fendant told the officer he was leaving the $ 3275, held sufficiently to charge defendant with city and going into the state of Illinois. felony of carrying dangerous and deadly weapon | This was a self-serving statement, and was concealed about his person.

properly excluded. State v. Musick, 101 Mo. 2. Criminal law cw413(1)-Self-serving state- Mo. 201, 211, 56 S. W. 883; State v. Powell

260, 274, 14 S. W. 212; State y. Moore, 156 ment properly excluded.

(Mo. Sup.) 217 S. W. 38 (10). It was not a There was no error in refusing to permit! defendant, charged with carrying dangerous and part of the res gestæ. State v. Reeves (Mo. deadly weapon concealed about his person, to

Sup.) 195 S. W. 1027, 1030, and State v. prove on cross-examination of officer that at

Powell, supra. time latter took revolver from defendant's [4] Another error assigned is that the court coat pocket he told him that he was leaving the l erred in refusing to instruct the jury to ac

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexed 273 S.W.-67

quit because of a material variance between it should not be construed to affect his innocence the allegations of the information and the or guilt, or raise any presumption of guilt, held evidence, in this, the information charges not erroneous as comment on fact that defend. that the defendant carried a dangerous and ant did not testify, in violation of Rev. St. 1919,

& 4037. deadly weapon concealed about his person, while the proof showed he carried it upon

Appeal from St. Louis Circuit Court; his person. A variance shall not be deemed

John W. Calhoun, Judge. ground for an acquittal of the defendant, unless the court, before which the trial shall Ray Renard was convicted of feloniously be had, shall find that such variance is carrying concealed about his person a loaded material to the merits of the case and preju- revolver, and he appeals. Affirmed. dicial to the defense of the defendant. Sec

Jesse W. Barrett, Atty. Gen., and George tion 3907, R. S. 1919. There was no vari. W. Crowder, Asst. Atty. Gen., for the State. ance, The gravamen of the offense is the carrying of the weapon concealed upon or about the person. State v. Conley, 280 Mo. that the defendant, on March 13, 1923, did

HIGBEE, C. The information charges 21, 25, 217 S. W. 29.

The instructions are in accordance with feloniously carry concealed about his perapproved precedents, and fully and clearly son a deadly and dangerous weapon, to wit,

a revolver, loaded with gunpowder and leaden advised the jury upon all questions arising in the case necessary for their information balls. On a trial he was found guilty and senin giving their verdict. The verdict is

tenced to the penitentiary for a term of two supported by substantial evidence. No brief years, in accordance with the verdict of the has been filed on behalf of the appellant, but jury. No brief has been filed by appellant, we have carefully examined all the assign

nor is he represented here by counsel.

[1] The information is based on section ments of error contained in the motion for new trial, and find them without merit. The 3275, R. S. 1919, and sufficiently charges the

offense. It is not necessary that it should judgment is therefore affirmed.

negative the exceptions contained in the proRAILEY, C., concurs.

viso. State v. Price, 229 Mo. 670, 682, 129 S.

W. 650; Kelley's Crim. Law (3d Ed.) $ 193. PER CURIAM. The foregoing opinion of

[2, 3] The defendant was arrested on the HIGBEE, C., is hereby adopted as the opin- night of March 13th as he was driving his ion of the court.

automobile on Olive street in the city of St. All concur.

Louis. The officer who made the arrest, by feeling with his hand, found a loaded revolver on the floor of the car at the defend

ant's feet. The night was dark, and the reSTATE V. RENARD. (No.: 25644.)

volver could not be seen. The defendant

said it belonged to him. This was a con(Supreme Court of Missouri, Division No. 2. cealment within the meaning of the statute. June 5, 1925.)

State v. Conley, 280 Mo. 21, 25, 217 S. W. 29. 1. Indictment and information Eml1l(1)-In. The demurrer to the evidence was properly formation for carrying weapons held suffi. overruled. No specific complaint is made as cient without negativing exceptions.

to the instructions given for the state, exInformation based on Rev. St. 1919, § 3275, cept No. 4, which reads: denouncing felonious carrying of deadly and dangerous weapons concealed about the person, laws of this state, if the accused shall not avail

“The court instructs the jury that under the held sufficient to charge offense thereof; it not himself of his right to testify on the trial in being necessary that it negative exceptions.

the case, it shall not be construed to affect the 2. Weapons Emw 10-Carrying loaded revolver innocence or guilt of the accused, nor shall the

on floor of automobile held "concealment" | same raise any presumption of guilt, nor be rewithin statute.

ferred to by any attorney in the case, por be Where officer, making arrest, by feeling considered by the court or jury before whom the with his hand, found a loaded revolver on floor trial takes place." of automobile at defendant's feet, the night being so dark that the revolver could not be seen,

It is said this is a comment on the fact it was "concealment," within Rev. St. 1919, ģ that the defendant did not testify, in viola. 3275.

tion of the statute. Section 4037, R. S. 1919. [Ed. Note.--For other definitions, see Words The very purpose of the instruction was to and Phrases, First and Second Series, Conceal- j advise the jury that under the law the deConcealment.]

fendant was not required to testify, and that 3. Criminal law 787(1)-Unnecessary in his failure to do so should not be considered struction on effect of defendant's failure to by the jury, nor be permitted to raise a testify not erroneous.

presumption of guilt. While this instruction In prosecution for carrying concealed weap was unnecessary, it has been held not to be eron, instruction that, if accused did not testify, I ror. State v. De Witt, 186 Mo. 61, 84 S. W.

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

(273 S.W.) 956; State v. Taylor, 261 Mo. 210, 227, 168 s.) mandamus, to compel defendants, Judges of W. 1191. The instructions given for the state the county court of Buchanan county, and are in accordance with approved precedents, the judges of the county court of Andrew and fairly and clearly submitted the case to county, to order a certain proposed road,' on the jury. Those asked by the defendant were the line between Andrew and Buchanan counproperly refused. The judgment is affirmed. ties. The trial court awarded a peremptory

writ, and defendants appealed. RAILEY, C., concurs.

The relators describe themselves as peti.

tioners for the establishment of the road. PER CURIAM. The foregoing opinion of By the statements of both the appellants and HIGBEE, C., is hereby adopted as the opinion respondents it appears that the proposed of the court.

road was properly petitioned for, and all proAll concur.

ceedings in relation to the matter were reg. ular in every particular. On October 17,

1921, the two county courts of the two coun

ties met in joint session and adjourned until STATE ex rel. CORNELIUS et al. v. McCLANAHAN et al., Judges.

October 31, 1921, and again adjourned until (No. 24267.)

November 14, 1921, when they met, and the

highway engineers filed their report. Accord(Supreme Court of Missouri. Division No. 2. ing to the statement of appellants, this reJune 5, 1925.)

port showed that relinquishment of the right 1. Courts em231 (5, 39)-Supreme Court with- of way for the proposed road had been signed

out jurisdiction of appeal in mandamus pro- by all parties affected except two, T. C. Bunse ceeding to compel judges to order establish- and Bartlett Bros. The report also showed ment of road.

the estimated cost of the road. The joint In a proceeding to compel judges of certain court then dismissed the petition for the road. counties to order the establishment of a cer- The respondents state this matter in a little tain road, involving only question whether different way, by which it appears that Bunse relinquishments of rights of way were received and Bartlett Bros. did sign relinquishments in time, the Supreme Court was without juris- of the right of way in time for the consideradiction of an appeal, as a constitutional question of the joint court, so that nothing retion or title to real estate was not involved, and neither of counties involved was party mained for the court to do except to comply within the constitutional provision relating to with the mandatory statute and order the jurisdiction.

road opened.

[1, 2] This court has no jurisdiction of this 2. Courts On 231 (5)-County not a "party"

appeal. No constitutional question is raised; unless a party of record, A “party" to an action held to mean a parn it appears that the only question to determine

the title to real estate is not involved, because ty of record, within constitutional provision relating to jurisdiction of Supreme Court when is whether the relinquishments of right of county is a party.

way were received in time for consideration [Ed. Note. For other definitions, see Words by the joint court. No political subdivision and Phrases, First and Second Series, Party of the state is a party to the suit; neither (In Practice).)

the county of Andrew nor the county of

Buchanan are parties within the meaning Appeal from Circuit Court, Buchanan

of the Constitution relating to the jurisdicCounty; Thos. B. Allen, Judge.

tion of this court and Courts of Appeals. In Mandamus by the State, on the relation of two recent cases we have held that a "party" W. B. Cornelius and others, against J. H. Mc- to an action, within the meaning of the conClanahan and others, as Judges, of the Coun-stitutional provision relating to jurisdiction, ty Courts of Buchanan and Andrew Counties means a party to the record. State ex rel. to compel defendants to order a certain pro- Tadlock v. Mooneyham, 296 Mo. 421, 247 S. posed road. From order granting a peremp- W. 163; State to Use of Nee v. Gorsuch, 303 tory writ of mandamus, defendants appeal. Mo. 295, 260 S. W. 455. It does not matter in Case transferred to Kansas City Court of such case whether a county is indirectly afAppeals.

fected by the result of the proceeding, the Peter C. Breit and Stephen Fee, Pros. ¡ jurisdictional question depends upon whether Attys., both of Savannah, and Perry A. Bru- the county as such is a party to the record. baker, Pros. Atty., of St. Joseph, for appel. This is a proceeding to compel by mandamus lants.

the judges of the county courts to act in a Randolph & Randolph, of St. Joseph, for certain manner in which it is claimed they respondents.

have no discretion.

Accordingly, the case is transferred to the WHITE, J. This is a proceeding begun in Kansas City Court of Appeals. the circuit court of Buchanan county, by

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

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