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(273 S.W.) reasonable doubt that defendant carried the would be guilty of carrying a concealed weapon. revolver concealed upon or about his person,
“The court further instructs the jury that, if it should acquit. This was a sufficient con- you find that the defendant carried concealed verse instruction. The instruction upon cir- upon
or about his person a deadly and dangercumstantial evidence requested by defendant withstanding that you may find and believe that
ous weapon, then you will find him guilty, notmerely dealt with the effect the jury should the said weapon was the property of some give to the circumstantial evidence necessa- other person." rily considered in determining guilt or inno
In his motion for new trial defendant cence under defendant's instruction No. 4 and the other instructions, and the instruction made the following assignment of error as to
said instruction No. 2: asked was properly refused. Instruction No. 4, asked by defendant and
"Because instruction No. 2 misdirects the refused by the court, is in the same form as jury as to material matters of law necessary
for their information, misstates the law and one given for defendant, after modification, in
assumes the existence of facts not in evidence, State v. Howell, 117 Mo, 307, 326, 344, 23 S. and further instructs the jury that they may W. 263. This court there simply held that find defendant guilty of carrying a loaded pistol the trial court did not err in modifying the or revolver concealed upon his person before instruction requested. It did not hold that entering the automobile mentioned in evidence the court would have committed error if it and while crossing Cass avenue, whereas, there had not given an instruction on circumstan- is absolutely no evidence upon which to base
such instruction." tial evidence in that particular form.
But defendant contends that instruction We must here confine defendant to the No. 3, given by the court, did not properly criticism of said instruction called to the declare the law upon circumstantial evidence, attention of the trial court in said motion and relies upon State v. Garrett, 276 Mo. 302, for new trial. It appears that the specific loc. cit. 310, 207 S. W. 784. The instruction objection then made was that there was no in that case was held to be free from the evidence that defendant carried a loaded vice of permitting the jury to pile inference pistol or revolver concealed upon his person upon inference. Defendant there contended before entering the automobile and while that the instruction authorized the jury to crossing Cass avenue. The facts that dedraw inferences from certain proven facts fendant and the other men were seen holdand circumstances and from the inference ing their pockets as they hurried down the thus drawn to infer guilt. The instruction steps and crossed the street to the automobile, here criticized does not contain the language in connection with the evidence tending to which gave rise to the attack upon the in- show that defendant and said other men struction in the Garrett Case.
were seen to make motions as if taking some[6, 7] (c) Instruction No. 2, given for the thing out of their pockets, and the finding state, is assailed. It reads as follows: of loaded revolvers hidden from view and “The court further instructs the jury that, within easy reach of defendant, tended to
show that defendant was carrying such weapin order to warrant a conviction, it is not necessary for the state to prove that the defend-on concealed 'upon his person before entering ant carried a loaded pistol concealed upon his the automobile. The indictment did not person, but that it is sufficient to show that he limit the charge to what occurred in the aucarried it concealed about his person. To be tomobile. carried about his person, it must appear that  In addition to the foregoing, defendit was so placed as to be within his easy reach ant here contends that the trial court erred and convenient control, and, in order to be in permitting the jury to find defendant guilty concealed, it must have been so placed as to escape the ordinary observation of persons
if he carried the deadly weapon concealed coming near enough to defendant to see the upon his person, whereas the indictment weapon if carried openly; in her words, if charged him with carrying it concealed about it were so placed that it would require a search his person. Had the indictment charged deto see it then it would be concealed.
fendant with carrying the weapon concealed "Whether the defendant carried a weapon upon his person, and had the instruction auupon or about his person, and whether it was concealed, are questions for you to determine about his person, there might be some reason
thorized conviction if defendant carried it from all the facts and circumstances shown for saying that the instruction broadened the in evidence.
"If, therefore, you find that the defendant, issues and authorized conviction for a crime either before entering the automobile and while not charged. It needs no argument to demoncrossing Cass avenue, carried a loaded pistol strate that anything which is upon the perconcealed upon his person, or if after entering son is about the person. The word "about” the automobile he carried it concealed upon includes everything included in the word his person, or carried it by placing it upon the "upon” and, of course, may include much front seat or upon the floor of the automobile in a position within easy and convenient reach
The greater includes the lesser.
IV. Finding no reversible error in the recto him, but so placed as to be concealed from view, in the sense of the word 'concealed as ord, the judgment must be and is affirmed. hereinbefore explained, then the defendant
vens, had acquired the two properties inSTEVENS et al. V. STEVENS et al. volved in this action, one a business block, (No. 26154.)
subject to a deed of trust for $3,000, and (Supreme Court of Missouri, Division No. 2. the other the property where they lived, subJune 5, 1925.)
ject to a deed of trust for $1,500. On March
26, 1906, Stevens and his wife conveyed these 1. Estoppel m71-Act of deceased, as admin properties by a warranty deed for the reistrator of his wife's estate, held recognition cited consideration of $5, which was not of wife's title in land, and solemn disclaimer paid, to James W. Peeler, and on April 2, of title on his part.
1906, Peeler and his wife conveyed them in Act of deceased as administrator of his
fee to Emma Stevens for the recited conwife's estate, in inventorying under oath certain lots as property of his intestate wife's sideration of $5, which was not paid. Steestate, held recognition of her title in land, and vens continued to live in the residence propa solemn disclaimer of title on his part.
erty until the death of Emma Stevens, Oc2. Pleading Em21-Averment in amended peti- tober 12, 1913, and until his death in 1923,
tion held inconsistent with claim deed absolute during which time he collected the rents of on face was in fact mortgage.
the other property, kept both in repair, and Averment in amended petition that S. prom- paid all general and special taxes. He adised to hold title to land for another held in- ministered upon the estate of his deceased consistent with claim that deed absolúte on its wife and inventoried these properties as beface was in fact a mortgage.
longing to her estate. In the year 1916, he 3. Trusts @m86—Husband's conveyance to wife married the plaintiff Mary A. Stevens, and
raises prima facie presumption of intent to died intestate in 1923. His daughter, Helen convey as provision or settlement for wife. K. Stevens, and the three minor children of
Husband's conveyance of real property to his son, Edwin M. Stevens, deceased, are the wife raises prima facie presumption that hus- defendants in this action. He left surviving band intended conveyances as provision or set him his widow, Mary A. Stevens, and one tlement for his wife, and a trust will not result.
son, Ronald F. Stevens, a minor, by his see4. Trusts 82 Husband's conveyance to ond marriage. They are the plaintiffs.
wife, through intermediary, held gift or set. The amended petition alleges that said tlement, and without resultant trust in his deeds were made for prudential reasons, and favor.
not for the purpose of divesting title out of A husband's conveyance to his wife through said Ronald F. Stevens; that it was underan intermediary held a gift or settlement, with; stood that Emma Stevens was to hold the out resultant trust in his favor.
title in her name in secret trust for said 5. Trusts 89(3)-Evidence held to show Ronald F. Stevens; that she so received and husband intended his conveyance to his wife treated said property during her life; that through intermediary as provision or settle- Ronald F. Stevens continued in possession ment for her.
thereof, collected the rents and income thereEvidence held to show that a husband in- from, paid the taxes and upkeep out of his tended his conveyance of realty to his wife sole and separate funds, and exercised abthrough an intermediary as a provision or settlement for her, and that such conveyance was solute dominion over the same; that at the not made to secure a loan of money by wife to time of making said deeds said Ronald F. husband.
Stevens had been dissipating for a period of
several weeks, and was in a weakened conAppeal from Circuit Court, St. Louis Coun- dition, and had been squandering his propty; John W. McElhinney, Judge.
erty while in said condition, and was imSuit by Mary A. Stevens, individually and portuned and persuaded by said Emma Steas next friend, guardian, and curator of vens to deed said property to her, and that Ronald F. Stevens, against Helen K. Ste- she then promised to hold said property for vens and others. Judgment for defendants, | plaintiff's husband so that she and plaintiff's and plaintiff's appeal. Affirmed.
husband and the members of their family
would have a home and an income during Joseph C. McAtee and Henry Higginboth
the life of said Emma Stevens and said Ronam, both of Clayton, for appellants.
M. F. O'Brien, of Maplewood, and Jos. ald F. Stevens, and to prevent further squanN. Schindler and Robt. C. Powell, both of the land herein described; that said Ron
dering and loss of said property, including St. Louis, for respondents.
ald F. Stevens had implicit confidence in
said Emma Stevens, and relied upon her HIGBEE, C. This is an action to de- promise, and so relying did execute said clare a deed, absolute on its face, a mort-deed, all of which said Emma Stevens well gage, and for partition. Plaintiffs appeal knew; that shortly prior to the time of said from a judgment in favor of the defendants. conveyances, said Ronald F. Stevens owed
Ronald F. Stevens, by the thrift and in- $300, which he was required to pay, and said dustry of himself and his wife, Emma Ste- ( Emma Stevens advanced said sum, which
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(273 S.W.) Ronald F. Stevens was obliged to repay to , she subsequently repaid by paying $80 in her, and, as security for said sum, conveyed money, and he took the remainder in rent at said land to her by and through said con- $40 per month. veyances; that the securing said indebted- James W. Peeler testified he knew Ronness was a part of the inducement and con-ald F. and Emma Stevens. Stevens was in sideration for making said conveyances, the bakery business, and his wife assisted which, although absolute in form and terms, him; they lived in two rooms back of the were in fact and should be treated as an bakery. Stevens then bought a lot and erectequitable mortgage; that part, if not all, of ed a building containing two storerooms said indebtedness has been paid, and plain- and two flats. He thought this property tiffs ask the court to take an accounting, cost Stevens $7,000 or $8,000; the other and they offer to pay any sum that may be property about $4,000. That in 1906 Stefound due and unpaid on said mortgage in- | vens got to dissipating, and would stay away debtedness, and further, in all things offer from his family for weeks at a time. Finalto do equity in the premises; that in equity ly a policeman found Stevens badly intoxicatand in good conscience the defendants ed and took him home. Witness suggested to should be held and declared trustees of Stevens that he make the deeds, and Stevens these plaintiffs to the extent of all lawful and his wife accordingly executed their deed claims in and to the same.
to Peeler, and the next day Peeler and his They further state that said property was wife executed their deed to Mrs. Stevens. the sole estate of said Ronald F. Stevens, The deeds were sent to Clayton to be reexcepting a small amount of personal prop- corded. Witness had previously suggested erty which has been consumed by the allow- to Mrs. Stevens to have the title put in her ance of $1,200 in lieu of provisions to plain- name; that “Steve” had been dissipating, tiff for a year's support, and by the allow- and the way he was spending his money he ance of $400 as dower in said personal would not have anything left for his wife property; that plaintiffs are without ade- and children, and witness asked him to quate remedy at law, and they pray judg- make the deed for their sakes in order that ment divesting title out of defendants and they might have a home the balance of their vesting the same in Ronald F. Stevens, a days, and to protect them as long as they minor, and in defendants in accordance with lived. Mrs. Stevens thanked him, and said their respective rights, and that the same be that was all right. A few days afterwards declared subject to the dower and home the deeds were signed. Stevens had been stead rights of Mary A. Stevens, etc. Then dissipating for six months; he had confollows a count in partition, declaring that tracted debts to the amount of $1,500 during Mary A. Stevens is the widow of Ronald F. that time. These two properties were all Stevens, deceased; that she is entitled to
he had. dower and homestead in said premises; that
Mrs. Mary A. Stevens, the second wife, she is the duly appointed and qualified and mother of Ronald F. Stevens, Jr., tesguardian and curator of Ronald F. Stevens, tified they had been living in the residence 9 minor, etc.
property 8 years and 3 months at the time The answer admits the conveyances as
of Stevens' death, April 19, 1923; that they pleaded, the death of Emma Stevens, the re- Stevens lived with them; that Stevens asked
were married June 27, 1916; that Helen lationship of the parties plaintiff and defend- her to sign some of his notes; that he statant, but denies all other allegations. The answer pleads the 10-year statute of limi-ing room from where he was seated, with
ed, in the presence of Helen, in an adjointations, and that Ronald F. Stevens adminis
the door open: tered upon the estate of Emma Stevens, deceased, and inventoried all the real estate
“This is to your benefit; some day I am godescribed in the petition as the property of ing to change this property back in my name,
so that you may get a benefit out of it." Emma Stevens at the time of her death, and that he made affidavit and swore to the
This was excluded by the court, to which truth thereof, and that he failed to make ruling plaintiffs excepted. That when she any claim for the restitution of said real objected to signing the note he said he was estate in the probate court, and is forever going to turn the property back in his name barred from asserting any title or interest for her benefit; this was in 1920, when she therein. The reply is a general deuial. signed one of the notes.
John Tate testified that shortly before the On cross-examination witness stated it 1906 transfers were made, Mrs. Emma Ste-was a year after their marriage when her vens came to him and said she had to have husband told her the title was in Helen and $300 for her husband; that he had signed Edwin's names, and that he intended to a name to a check without authority, and change it back to the way it was when he was in danger of prosecution, and she was first started out, because he had a son, the going to raise the money for him, and he baby, that he wanted to look out for; and was going to put the property in her name that he did not advise her before their marto protect her, Tate loaned her $200, which riage of the record condition of the title, but left her under the impression that it was that Stevens was going to put the property his property until he started a bus for his in her name to protect her that it is insistson, Edwin, in 1917.
ed by appellants that the deed to her should Henry C. Kirchner, circuit clerk, formerly be construed as a mortgage to secure the secretary of the St. Louis County Land Title repayment of the $300 paid by Mrs. Stevens Company, testified for the defendants : on account of the forged check. “I have known Ronald F. Stevens since 1901; record, when fairly construed, that at the
There is not a word of evidence in the was his close friend, and had several conversations with him in regard to this property. He time the deeds were made Stevens and his telephoned me the day before he went to the wife understood that he owed her the money hospital to come to his house. He asked me to so paid, or that they recognized it as a sub explain to Mrs. Stevens the exact status his sisting debt, or that they or either of them affairs were in so that in the event his trip to
ever at any time considered or understood the hospital would be fatal she would be ac- that the deed to Mrs. Stevens was given or quainted beforehand, and I explained for Mrs. taken as security for the repayment of the Stevens and repeated it for Helen's benefit, and I told her the title, since the death of the $300 so paid by Mrs. Stevens. The clear first Mrs. Stevens, vested in Helen and Edwin, understanding, as it appears from Peeler's and, after the death of his first wife, her hus- testimony, is that the deeds were executed to band had merely a curtesy interest and the en- prevent Stevens squandering his property joyment of the property for life, and in the and to preserve it for the benefit of his wife event he died he had no power to direct its and children. It is apparent that this is what disposition. He asked me to try to advise the Mrs. Stevens meant when she told Tate that different members of his family, if it were possible and consistent to do that to keep them Stevens was going to put the title in her from fighting about it; that he did not want any name to protect her. The conversation with trouble; that he had taken an insurance policy Tate was after Peeler had made the sugin her favor in order to try to equalize matters. gestion to Mrs. Stevens. I believe the insurance was $3,000; that, with his automobile and bank stock, would about that Stevens understood that the deeds were
 It is vital to appellants' contention equalize all interests."
executed to secure the payment of the $300
to Mrs. Stevens. If this was his understandOn cross-examination, witness valued the two properties, one at $7,500, the other at ing, and the debt was unpaid at the time of $18,000; the rental value of the first would Mrs. Stevens' death, then it was plainly his be about $60 per month,
duty, as administrator of her estate, to have Helen K. Stevens testified she was 27 years inventoried this secured debt as a part of old; that in April, 1918, her father said: the assets of her estate; if it had been paid, “You know you are one half owner of the the security was discharged, and there was property, and Edwin owns the other half." no debt to inventory. But Stevens not only Her father died April 18, 1923, and she con- did not inventory the debt but, with a full tinued to live there until in November, and understanding of the transaction, solemnly, paid her board. She knew of special im- under his official oath, inventoried these provements aņd special tax bills for sewer-| lots as the property of his intestate's estate. ing, curbing, and guttering made after 1913. This was, prima facie, a clear and unequivoMrs. Mary A. Stevens, in rebuttal, testified cal recognition of her title, and a solemn that her husband did not tell her he did not disclaimer of title on his part. own the house he lived in, but that Edwin Moreover, the plaintiff Mrs. Mary A. SteStevens had made that statement, and that vens testified that, a year after their marhis father was not present at the time. riage, Stevens told her the title was in his
1. Plaintiffs' witness, James W. Peeler, two children, Helen and Edwin. And the testified that he told Mrs. Emma Stevens day before Stevens went to the hospital her husband was dissipating, and the way he (where he died) he had his close friend, Mr. was spending his money he would have noth- Kirchner, explain to Mrs. Stevens that the ing left for her and their children, and that title was and had been in Helen and Edwin he suggested to Mrs. Stevens that the title ever since the death of their mother, and be put in her name, and asked Stevens to do that he had no power to direct its disposiso for their sakes that they might have a tion. At that time Stevens explained to home the balance of their days to protect Mrs. Stevens that his life insurance, bank them as long as they lived. Mrs. Stevens stock, and automobile would about equalize told Tate that Stevens had forged a check all interests. This evidence stands unconand was in danger of prosecution; that she tradicted. There is not a shred of testimony would raise the money and pay it, and that in the record to support the contention that Stevens was going to put the property in it was the mutual understanding that the her name to protect her. Peeler testified deed was executed for the purpose of sefurther, that a few days after the conver- curing the payment of a debt. sation mentioned, the deeds were executed  2. The contention that the deed was and mailed to Clayton, the county seat, to be taken as a mortgage is inconsistent with recorded. It is upon the statement to Tate the averment in the amended petition that (273 S.W.) Mrs. Stevens "promised to hold the title to , room, or to have played any of the games, or said property for plaintiff's husband so that to have had financial interest or share in the she and plaintiff's husband and the mem- profits. 'bers of their family would have a home and 3. Criminal law 1160—Verdict assessing an income during the life of said Emma
maximum penalty not disturbed on appeal; Stevens and said Ronald Stevens, and to
there having been fair trial. prevent a further squandering and loss of Verdict approved by trial court, assessing said property.”
maximum penalty for setting up gaming device, [3-5] 3. Neither is there any evidence tend- cannot be considered the result of bias and ing to establish the contention that Mrs. prejudice, or disturbed on appeal; the evidence Emma Stevens, by fraud or undue intluence, showing flagrant violation of statute, and trial procured the execution of the deed convey
having been fair. ing the property to her in fee. On the con- 4. Criminal law en 1064(4)-Admission of evitrary, plaintiffs' witness Peeler testified that dence, not complained of in motion for new he suggested to Stevens and his wife that trial, not available on appeal. the property should be deeded to Mrs. Ste- Assignment of error, based on admission of vens, and it appears they both fell in with testimony, cannot be considered on appeal; adthe suggestion, and the deeds were made, mission of evidence not having been complained transferring the title, through Peeler as a of in motion for new trial. conduit, to Mrs. Stevens. This constituted 5. Criminal law 7551/2-Instruction coma clear gift or settlement and no trust re- menting on evidence properly refused. sulted in favor of the grantor. McGehee v. Instruction constituting comment on the Garringer, 284 Mo. 465, 224 S. W. 828, 831 evidence is properly refused. (3). When, as here, the husband conveys or causes real property to be conveyed to his 6. Criminal law Om 1177-Defendant not harm
ed by steps as to sentence and allocution. wife, prima facie, it is presumed that he intended the conveyance as a provision or
Though, under Rev. St. 1919, $8 4057, 4058, settlement for his wife, and a trust will not where defendant has previously been heard on
allocution before sentence is not necessary result. Bender v. Bender, 281 Mo. 473, 478, motion for new trial, defendant was not harm220 S. W. 929; Wilhite v. Wilhite, 284 Mo. ed by setting aside sentence on his excepting 387, 396, 224 S. W. 448; Gilliland v. Gilli- thereto because of allocution not having been land, 96 Mo. 522, 525, 10 S. W. 139; Curd v. granted, then granting allocution, and thereBrown, 148 Mo. 82, 92, 49 S. W. 990; 1 Per- after against pronouncing the sentence. ry on Trusts, $ 143; 21 Cyc. 1255. That this was the grantor's purpose and intention Appeal from Circuit Court, Linn County ; need not rest upon a mere presumption; J. E. Montgomery, Judge. it is clearly established by all the evidence. Luther Williams was convicted of setting The judgment is affirmed.
up and keeping a crap table, and appeals.
Affirmed. RAILEY, C., not sitting.
J. H. Taylor, of Chillicothe, and C. B. PER CURIAM. The foregoing opinion of Burns, of Brookfield, for appellant. HIGBEE, C., is hereby adopted as the opin
Robert W. Otto, Atty. Gen., and James A. ion of the court.
Potter, Sp. Asst. Atty. Gen., for the State. All concur.
HIGBEE, C. The information, based on section 3537, R. S. 1919, in substance, charges
that the defendant on or about February 2, STATE v. WILLIAMS. (No. 26118.) 1924, feloniously set up and kept a crap table (Supreme Court of Missouri, Division No. 2. on which dice were thrown and used; that June 5, 1925. Rehearing Denied
said table was adapted, devised, and used for July 2, 1925.)
the purpose of playing games of chance for 1. Gaming C 101-Evidence of setting up did then and there entice and permit per
money and property; and that the defendant gaming device held sufficient.
sons, whose names are unknown to the proseEvidence on prosecution, under Rev. St. cuting attorney, to bet and play at and upon 1919, § 3537, for setting up gaming device. and by means of said gaming table and and inducing, enticing, or permitting persons to bet or play thereat, held sufficient to go to gambling device, against the peace and digni. jury.
ty of the state. On a trial to a jury the de2. Gaming ww79(1)-Certain matters held not fendant was found guilty and his punishrequired to be proved to convict of setting up
ment assessed at imprisonment in the penigaming device.
tentiary for five years A motion for new To convict, under Rev. St. 1919, $ 3537, of trial being filed and overruled, the court prosetting up gaming device, and inducing persons nounced sentence in accordance with the verto bet or play thereat, defendant need not be dict. The defendant excepted to the senshown to be proprietor of the table or the tence, for the reason that he had not been
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