*1 COURT OF MISSOURI, urged city But, IV. it is that the cannotexistwith- generalcity special taxes, ou~ and that to make tax- superior acquiredby purchaser billsa lien to thetitle generalcity at a tax saleto collect revenuewouldmake superior the tax-bill a lien to that of the Impairment of city general taxes, thereby for its and wwild Taxing Power. impair necessary taxing power of the city, authorized, provision which cannot be even city charter. We do not take this view. There is provision pointed no of the Constitution out with which provision Indeed, such a of the charter comes in conffict. provision general city there is no constitutional against taxes shall be a lien of kind real estate. lien, Whether should be a and the nature and char lien, acter of such and the nature and character of the grantee acquixe, title the in a collector `s tax-deed should purely concern, a matter of local as to which the City paramount controlling. charter of Kansas Field, point [State 352.] ex rel. v. 99 Mo. We rule this against appellant. We think the case was well tried the learned court, Li'iidsay, C., lower concurs. and its is affirmed. foregoing opinion by SMALL, PER CURIAM: The C., adopted opinion as the of the court. All of the judg~s concur. SANDERS, Appellant.
THE STATE v. E. E. Two, Division June 1923. Exception. application
1. CONTINUANCE:No Wherethe for a con- preserved exceptions tinuance is not~ thereforis contained in the bill of and no call therein, application cannotbe considered appeal. TERM, 1923. Yol.
State v. Sauders. Against Weight province Evidence. VERDICT: not 'the testimony; appellate court of the to determine guilt tending if the evidence to establish sub- stantial, will *2 be ruled that the verdict was evi- it
dence. 3. DEFILING WARD: Force As Excuse: Erroneous Instruction for girl Defendant. eighteen; To sexual intercourse with a under years age custody of confided defendant is to the care and 3260, (Sec. 1919), offense denounced the statute R. S. offense; accomplish use force to her defilement does lessen consequently telling an instruction that “if accomplished sexual intercourse was force on the you guilty” given, fendant will find him not should not be given, request State, at the it is an error favor, complain. of which he cannot Appeal Oregon Circuit;Court. Stewart, Fred —Hon. Judge. Affirmed.
J. D. & Impey Wallace, Barton and S. M. for Meeks appellant.
(1)
number 1
Instruction
is
is
erroneous, as there
showing
prosecuting
no evidence
witness
protection
confided the care and
of the defendant. Sec.
(2)
3260, R. S. 1919.
Continuance should have been
granted to the defendant. State v.
69
Walker,
274;
Mo.
(3)
v.
State Lewis,
194
v. Sanders.
State
except
upheld
clear abuse
in the case of a
denial will
a
263 Mo.
314;
v.
State
Salts,
304,
of that discretion. State
(2)
Evidence
265
630.
613,
Mo.
Lewkowitz,
v.
properly
in a
admitted
pregnancy of the
Palmberg,
defiling
prosecution
199
a ward. State v.
Kelly,
(3)
Mo.
494.
489,
v.
245
253;
Mo.
State
233,
sufficiency
of defilement of
case
age
tested
Donning-
under
is to be
female
ward
rape.
applicable to cases of
State v.
the rules
1
(4) The record discloses that
Mo.
354.
ton,
246
upon which
submit the
there
sufficient evidence
jury.
of the evidence
for the
case to the
jury.
573;
111
Mo.
State v.
Wilcoxen,
'569,
State
Day,
539;
Mo.
188 Mo.
Marcks,
656;
Mo.
191 Mo.
State v.
Skillman,
-v. Dilts,
(5)
234 Mo.
State’s Instruction
Tevis,
*3
correctly quoting
while
the law
favorable
not
was
prejudicial.
and could not have been
defendant
Harney,
(6)
may be convicted
RAILEY, 22, C. On December defendant charged in an information under Section Revised 3260, Oregon County, filed in the Circuit 1919, Statutes Court of having feloniously with defiled a ward under Missouri, eighteen years age,
of on or about March 25, 1918, county, custody. said while his care and confided to formally arraigned, plea of defendant was entered his guilty, jury, August a and was tried before 31, following was returned: 1922, verdict jury, E. “We, find defendant E. Sanders charged pun- in the and information assess his ’ years imprisonment two ishment at State Peniten- ’’ tiary. for a new trial and arrest Motions Judgment were filed and overruled. was rendered and pronounced in accordance sentence with the terms said granted appeal and defendant to this verdict, court.
Vol. TERM, 1923. prove The evidence in behalf of the to State tended step prosecutrix, Megary that H. M. father Megary, age Laconnie female under the a years; September that about came to defendant 18,1918, prosecutrix, requested permit the father him and to (defendant) her to live with him wife, school so term, school; she could attend defendant pay might to her company so that she tuition, appellant’s during- nights; stepfather wife that said permitted prosecutrix to move the home to of defendant, September, stayed 4th 5th about 1918, and she there until at time March, 1919, left, which she and at tended the at Normal School Alton, about Missouri, taught months, three after which she school for about gave three months at Bartlett, then returned home, and birth to child on December 1919; that she did staying for her housework board while at defendant’s day home, and attended school; that about the 1st away’from while the March, 1919, defendant’s wife was appellant prosecu sexual home, intercourse with stayed trix; she at defendant’s home for about two weeks after home; intercourse, to her returned returning that after home, she wrote and told defendant pregnancy, reply of her and in her letters she received about three letters from in which him, he advised her worry get about her condition. He told ner could doctor, her meet place, directed him at a certain said the doctor ap would her; relieve that proached Roy one Davis, him offered he would $50 *4 testify prosecutrix that he had taken the “down on the (defend Kirby tracks;” that defendant told James ant) prosecutrix, had had with intercourse and did deny any it. He other man- would have done the thing. Baty same He Robert told he .had had sexual prosecutrix intercourse with more than a dozen times. The in behalf of defendant tended show arrangement prosecutrix to come to his house COURT OF MISSOURI, by never had by that he wife; but his him, not made was prosecutrix; wife that'his improper with relations October; that was in and that once, left never home get together along and prosecutrix well he and did sexual quarreled. that he ever denied The defendant hav- prosecutrix. likewise denied He intercourse with Kirby. by ing and Davis detailed conversations rulings as far court, The instructions and necessary, later. will be considered appeal. second here on
I. defendant’s This case is ap- on the former reversed and remanded The cause was permitted peal, defendant, trial court had because the proceedings by. jurors.' The eleven be tried consent, reported S. W. in 243 in the case will be found former following. 771 and assigned, réspect giving error in to the
The first the State. This instruc- of Instruction One behalf appeal, at tion-was assailed on the former out was set. page length Judge at ‘Walker, Reporter express terms, and, S. W. E^rdenceUffiCient sufficiency good. Its is now to be held alleged ground challenged is no evi- that there on the prosecuting- showing that the witness case dence protection In of defendant.. the care and confided considering page this J., at 243 S. Walker, ‘‘ testimony question, introduced The said: girl simple The to the intrusted care and direct. attending purpose school, for the the defendant carnally household he seduced member his while a ’’ her. knew produced trial, last clear and sub- State, at testimony guilt tending to establish the of de- stantial testimony According testatrix, fendant. appellant, wife not at home, absence, seduced had sexual wife?s her. with intercourse slightest above contention is devoid merit
and overruled. *5 197 TERM, Yol. Sanders. State v. appellant erred suggested by court that tbe
II. It is cause. refusing grant of the continuance in bim application proper a continuance for that record shows exceptions does The bill of was filed and overruled. npr at exhibits application, copy the
contain a of said exceptions for call Nor does the bill thereto. tached has application It become the attached exhibits. said elementary exceptions is bill in this that the State law exception depositary occur which all the for matters application progress trial. The the of the been have should continuance exMbits attached exceptions. The action bill called or set out in the for, application have overruling should the court be incorporated the record been bill. In view of respect nothing fore there here review us application Meramec v. [Hunicke for a cotinuance. Baugh, Quarry (Mo.) v. Co., 348; W. l. c. State 212 S. (Mo.) cited; 217 S. l. c. numerous cases State W. 280-1and Dickey, (Mo.) v. l. Kline Cloak Co. 584; 231 W. c. S. Langford, (Mo.) 240 l. c. Morris, S. W. (Mo.) l. S. c. S. W. Barker, (Mo.) l. c. 410.] against ap- foregoing authorities are conclusive
pellant, preclude considering application us from for a continuance. by appellant
III. is contended the verdict evidence. have heretofore We stated there was which substantial evidence the trial offered at finding warranted charge lodged against him in the information.
Sufficient province pass upon It is not the of this court to Evidence. testimony. juries Two passed upon guilt and, say, suffice it ample testimony upon respective which to base their con- clusions. carefully IV. We have consideredthe instructions givenby except correct, the'courtandfindthemall to be OF MISSOURI, COURT y. Sanders. *6 given
Instruction behalf on Seven, use of Force. palpably erroneous. ferLdant, which reads as follows: you jury the that if
“The court instructs believe and in this find the the case that defendant had Megary, sexual intercourse with the witness Laconnie accomplished by force that said intercourse will of the defendant and of the said you Megary, guilty, will Laconnie find the defendant not you or not it intercourse, whether such believe was by you otherwise had, force or are to determine from given all the facts and circumstances in evidence.” Section Statutes 3260,Revised under which the reads indicted, as follows: any guardian any age “If female under any person years, pro- or other or whose care tection such female shall have been confided, shall carnally by knowing defile her, she her, while remains in custody employment, his or care, he in cases not shall, provided punished imprisonment otherwise for, penitentiary exceeding imprison- years, not five county jail exceeding year ment in the one and a fine than less one hundred dollars.” If custody was under the care and eighteen years age, defendant while under he had sexual intercourse with her said time, either with provisions or without force, under the above section. [State Mo. l. c. Knock, Harney, following; l. 168 Mo. c. 197 and v. Volz, l. Mo. c. State v. Bowman, 272 Mo. l. c. 497.] position complain defendant, in no however, given of said instruction, erroneous behalf. opinion V. We are of the that the other instructions given, supra, aside from properly number seven declared necessary all the law that was for the consideration of passing upon the merits of the Instructions. refusing ease. No error was committed in ten to fifteen instructions inclusive, asked defendant. Yol. 299] APEIL TEEM, 1923. Railway
Rittenhouse v. Co. carefully reading VI. After arewe record, satis fied that impartial defendant received a fair and trial, jury; before rulings conservative that no were adverse ma(^e ag’ainst legally him of which he can pair Trial complain; that he was convicted on substan testimony, light punishment tial received crime which he had committed. accordingly below is Higbee, affirmed.
G., concurs. foregoing opinion
PEE CUBIAM: The of Bailey, adopted opinion 0., of the court. All judges concur. *7 RITTENHOUSE,
ETTA Administratrix of Estate of H. A. FRANCISCO RITTENHOUSE, v. ST. LOUIS-SAN Appellant. RA COMPANY, ILWAY Two, 11, 1923. Division June Anticipation Switching Crew: Law: NEGLIGENCE: At Common imputed may Inspector’s knowledge to Presence. Actual if the surrounding fendant facts and circumstances: ordinary dis- switching could care the exercise of crew dangerous inspector situa- presence of the car covered the making track, they assembling aon the cars were tion between where imputed knowledge But up train, defendant. will be track, assembly car, coupler, on as it drifted whose defective, in that crew be foreman discovered high, auto- it would coupling pin so that been raised too had than less by impact, the track matically couple remained had couple; in less failed to drifted another a minute before impact against in, second and its a third drifted than a minute together in- crush the to come and first second caused the them; been seen gone had not spector, in between who hour; duties yard usual for more than usually repairmen yard; did not part- of the were in another only assembled, being notifica- after inspect were cars repaired usually up, and made had been the train tion that train- upon notice couplers only do so called when