*1 82.1 Hardware & Dry Goods located,” Store, etc., was not a al- sufficient legation of ownership to sustain a conviction. In State v. 295 Simpson, (Mo.) S. W. 739, an indictment for bur glary was held fatally defective which allege failed to some form of ownership in the building charged to have been burglarized, being averment that it “a was building located 217 at West 9th Street in Kansas City, Jackson County, Missouri, and known Savoy as the ’’ Pharmacy.
In each of these cases, except that of State v. Winer, it will be noted that the conviction was not sustained because of the lack of an averment in charge of the ownership of building burglar- ized. The information in the bar, case at shown, we have not defective in this respect and it is not so contended nor proof is the in support of that lacking. averment point From vantage no there- fore are the cases cited appellant apposite. IV. The motion for a new trial preserve does not alleged error giving instructions numbered one and two the State. Despite the preserve failure to objections to these instructions appears that there ivas no conflict between defendant’s Instruction H given Instructions and 3 State. The
point given made is that instructions State was theory jury need find that upon that the not were defendant conspiracy; jury if found a present the crime at the commission simply converse H, given defendant, for the and Instruction given 2 State. and 3 for the Instructions ample to warrant there was evidence disputed that It is not conspired with theory that defendant on the giving instructions State’s up the summed instructions The first
his co-defendants.
a verdict.
evidence, and directed
the State’s
hypothesizing
theory,
evi
hypothesize the
appellant
did not
given
instruction
on the
burden
imposed
greater
and it
theory,
supporting his
dence
harmed the
have
not
requires.
It could
law
than the
State
Pinson,
v.
State
l. c.
Howe, 287 Mo.
v.
and was not error.
[State
not
do
prejudicial
instructions
Erroneous
291 Mo. l. c. 338.]
Bird,
Edwin Mills for in reply. *3 N. Samuel in this original plaintiff HENWOOD, C. The circuit in the Missouri, County, against Dickey, filed suit owing and due alleged balance county, court of the to him on his salary as prosecuting' attorney county. He died on December 13, 1925, and the cause was the name of his revived son and administrator, Dickey. Chas. petition, W. In amended the administrator seeks to recover the $737.89, sum of total of monthly alleged together balances to be due on said salary, interest per thereon per rate of six cent On ad- annum. motion, parts, ministrator’s were county’s certain answer stricken judgment out. administrator then moved for pleadings, stipulations. and motion, also, This was sustained judgment rendered in favor of administrator for the sum county $737.89. After its overruled, a new appealed, exceptions. but filed no bill abstract its of the record connection with filed respondent’s brief and petition, consists amended argument, signed by parties, appellant’s stipulation petition, answer they agree in which shall as true and that certain facts be considered appellant’s correct, respondent’s parts certain mo- same, respondent’s answer sustaining and the court’s order judg- stipulations tion for and the on the appellant’s ment court’s motion for a new trial and the rendered, overruling application appeal same, appellant’s order for an appellant appeal this court. granting and the an court’s order ad- respondent In filed an argument, connection brief with his which record, ditional abstra'ct of consists omitted. appears answer as stricken out are when the case appeal Respondent also filed a to dismiss the not furnished brief has “for the reason that in its intended points court with a clear and concise statement al- *4 the errors set forth argument, insisted on in has not the and by the required leged court as is by to have been committed the court.’’ 15 of this No. by of and Rule statutes the State of Missouri the with submitted motion, by court, was taken as This order of the case. subject it is that appellant’s
I. Our brief discloses examination of motion respondent's in to some criticism mentioned particulars in the case view of the the under However, appeal. dismiss the to aas brief, taken his appellant, for expressed by counsel mo this court. of with the rules substantially, complies, whole, therefore, overruled. is, tion be record the case on the of brings a consideration us to II. This no proper, record the to is limited review Manifestly, our us.
fore rule, the guneral Under the being filed. exceptions of bill on judgment for answer, the certain stipulations, trial, tlie and and the motion for a new iu-
eluded in so-called abstract of the record, only could part become a by of the record a virtue of bill of exceptions, in which exceptions such motions and rulings properly preserved. to the thereon are Counsel for in reply his brief, contends that out, to strike in served purpose it demurrer, of a that disposed ease, is, consequently, part proper, and of the record
of which we must take notice. If the motion to strike essentially out is a demurrer, then contends, as counsel it is open review a part proper. here as of the record This exception general supported rule well is authority established in this But, State. as we view the motion, in connection at, with the answer it not fill stricken did office of a demurrer, exception and, therefore, does invoke general rule. substance, in petition, alleges govern- County that is a Webster Dickey mental subdivision Missouri; of the State of that Samuel N.
died 13, respondent December and 1925, duly appointed, that is the qualified acting" estate; and administrator said Samuel of his that the duly acting Prosecuting N. Diekev was the qualified At- elected, torney County 1925, January from 13, to December 1st office, that, compensation performing as of said duties pay- legally salary $2500, monthly an he entitled to annual $208.33-J; justly ments of a total that he'was entitled to receive incumbency $2387.89, salary services, time of his during his office; that, received death, aforesaid, said time of he had each, services, monthly $1650 covering payments $150 said beginning February ending that said 1, December him county, pay acting through county court, its refused to monthly salary payments; balance of said due on $58.331t- being same $737.89, sum there now due his administrator the unpaid prayer petition, salary. balance on In the said together interest $737.89, the administrator asks monthly balance per unpaid per at the said rate of six annum on cent salary. on said petition, allegations of the specifically
The answer admits all of the due on allegations balance excepting which relate those denial, specific salary. allegations, contains As to these the answer following language: in the sued for amounts plaintiff "Defendant denies that owes ’ ’ *5 petition any part thereof.
said first amended or said special states that defense, answer As affirmative court, re- quarterly county Dickey file, Samuel Ñ. failed to with his in uncollected ports fees due of all and all fees collected 826 735, on
office, 31st, 30, 1925, by March required and June Section 1919, Revised any Statutes said report did not file whatever of .1925; fees until August 13, that, by and further states reason of his pro- failure file reports, salary said he forfeited his under the visions of 737, Section Revised 1919. Statutes The motion to specifically particular- strike out mentions and with ity only parts special those of the answer which affirm- relate to said ative defense. ap
From this and to the it is motion, reference to the parent motion, regardless that, ruling once court’s on this county’s specific there another issue trial for under denial any liability petition for for amended or “the amounts sued in said part It thereof.” follows that strike out certain operate in and that the answer did not as a demurrer ruling subjects proper the motion and the trial court’s thereon are not general above, rule, well our consideration. The referred to is in 251 c. Railway Railroad, Co. v. Mo. l. stated case of Interstate 352, 718, 158 S. W. l. c. as follows: part is pleading
“A
of a
part
motion to strike out
exception
must not
is matter of
which
proper,
record
but
called
the trial court’s
exceptions, but also be
preserveddn a bill of
new trial and
trial,
in a
new
and the motion for
attention
motion for
by
preserved
proper
exception
overruling of
must be
same
to the
’’
here.
matter can be reviewed
exceptions before the
bill of
Drainage District,