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wife, he would, by the same marital rights,, was said: "By a fair construction, then, become seised of an estate therein during we think that, while Daniel Hightower, by their joint lives; and, if they have a child this deed, did surrender to his wife, during born alive, for his life, if he survives her the coverture, the rents, profits, and possesas tenant by the curtesy." sion of this land, yet, as we have already said, he made no settlement of the estate beyond her lifetime. The death of the wife renders the tenancy by curtesy consummate or complete. Inasmuch, therefore, as this deed makes no settlement of the land in the event of the wife's death but provides only for dominion and control over it during the coverture, the husband thereby abridged his estate for that period only, and, having survived her, he is entitled to take as tenant by the curtesy. We see no reason why he shall not be taken to have intended, when Clarke, 6 Grant, Ch. (U. C.) 474. The court says that where a gift is intended to be made of property, but in the mode in which it is intended to be made it is imperfect, a court of equity will not compel the donor or his representatives to complete it. The court admits that a husband may make a gift to his wife. and that the intention to do so was manifest, but states that the gift was imperfect. All was not done that might have been done; and the court will not, at the instance of a volunteer, compel its completion.
It is admitted that in that case the husband and wife were both alive, and he could not, therefore, be tenant by the curtesy; and it is said that the question as to the right of the husband to curtesy, after the wife's death, was not involved in that case. In Frazer v. Hightower, 12 Heisk. 94, the husband had conveyed to a trustee for his wife certain lands; and the question was whether the husband, after the death of the wife, took an estate by curtesy in the lands so conveyed to the trustee. In that case it
have supposed by his transfer or other deed that he was about to deprive himself of the use of the property. By law he was entitled to the management of the separate property of his wife and to support out of its proceeds, having no property of his own. If there ever was a case when the court would depart from the ordinary rule of decision, and under its power of doing what is just and right make such provision as would meet the extraordinary circumstances of the particular case, this is one which strongly demands the interposition of the court.
XI. Form and provisions of conveyance.
When a deed is not sufficient to pass the estate out of the hands of the conveyer, but the party must come into equity, the court has never yet executed a voluntary agreement. To do so would be to make him who does not sufficiently convey, and his executors after his death, trustees for the person to whom he had so defectively conveyed; and there is no case where a court of equity has ever done that. Whenever you come into equity to raise an interest by way of trust you must have a valuable, or at least a meritorious, consideration. Colman v. Sarrel, 1 Ves. Jr. 54.
In Machen v. Machen, 15 Ala. 373, the court, upon the authority of Gamble v. Gamble, 11 Ala. 966, held that parol declarations by રી man that slaves belonged to his wife did not have the effect of vesting the title in her as against his executors.
And the Machen Case was followed in Frierson v. Frierson, 21 Ala. 549, and Machen v. Machen, 38 Ala. 364.
A gift of notes and mortgages by husband to wife may be effected by handing them to her with directions to take care of them, accompanied with the statement that they are for the donee and the children. Mack v. Mack, 3 Hun, 325, 5 Thomp. & C. 530.
The settlement must be in such form as to place the property within the power and under the control of the wife. Townsend v. Maynard, 45 Pa. 198.
To be enforced in equity a bill of sale from husband to wife must have been delivered. Dyer v. Bean, 15 Ark. 519.
A mere written transfer upon the back of a mortgage without seal, although it purported to be a sealed transfer, is not sufficient to vest any interest in the wife. Tiffany v.
A provision in a conveyance by a man to his wife that the property shall revert to him upon her death without having disposed of the property will be given effect. Pollard v. Union Nat. Bank, 4 Mo. App. 408.
If the conveyance to the wife is made under the express agreement on her part to reconvey to the husband on his request, she has no interest which will descend to her heirs. Cotton v. Wood, 25 Iowa, 43.
The mere fact that a deed of separation provides that no suit shall be brought against the husband on behalf of the wife to compel him to make her a further allowance does not preclude her, in case of her bringing a bill for divorce because of his subsequent adultery, demanding alimony from his estate. Morrall v. Morrall, L. R. 6 Prob. Div. 98.
A gift from husband to wife will not bar dower unless given with a condition to that effect, or granted as a jointure. Bubier v. Roberts, 49 Me. 460; Reed v. Dickerman, 12 Pick. 148.
Where a man who, by marriage articles, had agreed that his wife should have a third of his personal property in case of his death, gave to her during his lifetime certain annuities which she claimed to hold in addition to the portion provided for by the articles, the court said that the transfer is not a good transfer so as to affect the marriage articles by making an alteration in the gross estate of the testator, the whole of which was liable by the marriage articles to be divided into such proportions which he could not voluntarily alter, and therefore this grant is a fraud on the articles, yet it is good as against the testator himself, and to be answered out of his testamentary share if sufficient; and in this court gifts between husband and wife have often been supported, though the law does not allow the property to pass. Lucas v. Lucas, 1 Atk. 270. H. P. F.
he made this conveyance to his wife, that she was to hold the estate as every estate of inheritance is held by a wife; that is, subject to curtesy."
Referring again to the case of Barnum v. Le Master, the court said, in support of its holding that "otherwise the wife would not only be deprived of all the fruits of ownership during all this time (that is, during the marital relation), but she could not sell or convey it without his consent and joinder in the conveyance. A power in the husband over the disposition of the property often enables him to control and reacquire title by reducing to possession the proceeds of the sale of it. The wife would acquire a bare right to sell with the concurrence of her husband while he lived, and only comes into full ownership and enjoyment in the event she should survive him. An estate more in the nature of a remainder than an absolute one taking effect immediately, which the deed purports to pass, and wholly inconsistent with the terms of the instrument."
We are of opinion that the conveyance of real estate by the husband to the wife should have the same effect as the gift or transfer of personal property, that is, to devest out of the husband all interest, present or contingent, in the land; and upon the death of the wife the real estate should go to the devisees of the wife, if she make a will,
STATE of Missouri, Respt.,
Jasper COLEMAN, Appt.
(186 Mo. 151.)
1. That threats made by one on trial for murder to kill his victim were made a year or eighteen months before the homicide does not render evidence of them inadmissible.
2. The jury in a murder case cannot infer that a verdict was rendered by a coroner's jury, merely because the prosecuting attorney asked a witness whether or not he, as a member of such jury, did not render such verdict, which question the witness was not permitted to answer, so as to make the conduct of the prosecuting attorney ground for reversal.
3. In the absence of exception to the conduct of the prosecuting attorney
and, if she die intestate, to her heirs, free from any claim on the part of the husband for curtesy or other interest; and that the case of a conveyance from a husband to the wife of real estate must, to this extent, be distinguished from a conveyance by a third person to the wife for her separate estate.
NOTE. As to homicide by officers of justice, see also, in this series, State v. Phillips, 67 L. R. A. 292, and note.
MISSOURI SUPREME COURT.
As to admissibility of record of coroner's inquest in evidence, see also United States L. Ins. Co. v. Kielgast, 6 L. R. A. 65; Consolidated Ice Mach. Co. v. Keifer, 10 L. R. A. 696; and Cox v. Royal Tribe of Joseph, 60 L. R. A. 620.
This case is distinguishable from the case of Carter v. Dale, 3 Lea, 710, 31 Am. Rep. 660, which was a conveyance from a third person to the wife, and not from the husband.
This case is distinguishable, also, from the case of Frazer v. Hightower, 12 Heisk. 94. In the latter case the conveyance was in trust for the wife, and the court construed the language of the conveyance to indicate that the object of the husband was merely to secure to the wife the rents and profits of her real estate during the marital relation, and no longer.
The decree of the chancellor as to the Beale-street property is also reversed; Jacob Weller having no interest therein or claim thereon.
The costs of appeal will be paid equally by complainants and defendants, and of the court below as directed by that court, and the cause is remanded for further proceedings under this holding and the agreements of parties heretofore made, as shown by the record.
in reading the verdict of a coroner's jury in propounding a question to a witness, the supreme court will not set aside a verdict of guilty in a murder case merely because the coroner's verdict stated that the homicide for which accused was on trial was unjustified.
4. A police officer who kills a person whom he is attempting to arrest is guilty of a criminal offense if he uses more force than is reasonably necessary to effect his purpose. 5. Charging the jury as to the effect of verbal statements of accused, when there is no evidence that he made any, is not reversible error, where the facts disclosed by the record show that accused was not prejudiced thereby.
6. It is misleading to charge that municipal ordinances do not justify the shooting of a person by an officer in attempting to arrest him for their violation, in connection with a charge that the ordinances are admissible to prove the good faith of the officer in attempting to effect the arrest. 7. An instruction contained in the general charge need not, at the instance of the parties, be repeated in special instructions.
Mere failure of a person to submit to arrest does not give the officer the right to take his life, although the of
ficer has good reason to believe that he has authority to make the arrest; and, if the officer acts in malice and with premeditation because the one he is attempting to arrest
does not remove his hand from his pocket upon command, the officer will be guilty of murder in the second degree. 9. Failure to give an instruction which is not requested upon a matter to which the attention of the court is not called is not
Messrs. Edward C. Crow, Attorney General, and C. D. Corum, for respondent: The competency of threats is not affected by remoteness.
State v. McNally, 87 Mo. 644; State v.
10. Instructions predicated on facts
which do not exist are properly refused. Glahn, 97 Mo. 679, 11 S. W. 260; Underhill, Crim. Ev. p. 392.
11. The omission of the recital that an information for murder is upon
the oath of the prosecuting attorney is fatal to its validity.
The rule that an officer has the right, in making an arrest, to use all the force necessary to overcome resistance, even to the taking of life, does not apply as to a misde
12. The question of the invalidity of an information may be raised for the first time in the appellate court.
State v. Dierberger, 96 Mo. 666, 9 Am. St. Rep. 380, 10 S. W. 168; 2 Bishop, Crim. Law, § 649; State v. McMullin, 170 Mo. 629, 71 S. W. 221.
Burgess, J., delivered the opinion of the court:
(February 2, 1905.)
At the September term, 1903, of the circuit court of Chariton county, the defendant was convicted of murder in the second degree, and his punishment fixed at twenty years' imprisonment in the penitentiary, under an information filed in the circuit court of said county by the prosecuting attorney of said county, charging him with
PPEAL by defendant from a judgment of the Circuit Court for Chariton County convicting him of murder. Reversed. The facts are stated in the opinion.
Messrs. Ball & Sparrow and A. W. having shot to death with a pistol at said Johnson, for appellant:
The reading of the verdict of a coroner's jury as evidence is error in any cause, civil or criminal.
county on the 8th day of August, 1903, one Rufus Cox, against the peace and dignity of the state. Defendant appeals.
The facts, briefly stated, are that at the time of the homicide the defendant was marshal of the town of Dalton, in said county. Deceased' lived in the county, and on the day he was killed had gone to Dalton, taking some fish with him for sale, and was vending them upon the sidewalks of the town, in violation of a resolution of the board of aldermen of the town, which the marshal understood had theretofore been adopted. When Cox arrived in town he established himself upon the sidewalk, and began selling his fish. The defendant, as marshal, advised Cox that an ordinance had been passed prohibiting the use of the pavement for such purposes, and requested him to move his fish to some other place. It seems that the deceased at first demurred, but finally reluctantly removed his fish, at the request of the defendant, to the inside of a store, and remained in the store until late in the afternoon, when he again placed his fish upon the sidewalk. The defendant again remonstrated with him against using the sidewalk for the purpose, and attempted to get him to remove his fish. This the de
State v. Dierberger, 96 Mo. 666, 9 Am. St. Rep. 380, 10 S. W. 168; 2 Bishop, Crim. Law, 6th ed. §§ 647, 651, pp. 354, 356; State v. Rose, 142 Mo. 418, 44 S. W. 329; State v. Lane, 158 Mo. 572, 59 S. W. 965; State v. McNally, 87 Mo. 644.
The information omits the words, "on his ceased declined to do, whereupon the deoath aforesaid," and is insufficient. fendant attempted to arrest him and lead
13. Failure of the clerk to indorse the
word "Filed" upon an affidavit is a mere irregularity which may be amended at any time before or during trial, and objection to it cannot be made for the first time on appeal.
State v. Furgerson, 152 Mo. 92, 53 S. W. 427; 1 Bishop, Crim. Proc. 2d ed. § 712, p. 442; State v. Stacy, 103 Mo. 11, 15 S. W. 147; State v. Meyers, 99 Mo. 107, 12 S. w.
(Valliant, J., dissents from proposition 5. Gantt, J., dissents from proposition 11.)
State v. Garth, 164 Mo. 553, 65 S. W. 275. The fact that the court permitted the verdict of the coroner's jury to be read in the form of a question, and then sustained an objection by defendant, does not cure the
State v. Thomas, 99 Mo. 235, 12 S. W. 643; State v. Kuchner, 93 Mo. 193, 6 S. W. 118; State v. Fredericks, 85 Mo. 145; State v. Mix, 15 Mo. 153.
It was the duty of defendant, under the facts in this case, to arrest the deceased. Therefore, as such officer, he must, of necessity, have been the aggressor. As such officer it was his duty to use sufficient force to accomplish the arrest, and he must, of necessity, have been the judge of the force necessary to make the arrest, and to bring the deceased within his control.
Defendant complains of the action of the court in permitting the attorney for the state to read to the court in the presence of the jury the verdict of the coroner's jury. It was not read in evidence, but the attorney for the state asked witness Davenport whether he, as a member of the coroner's
him away, in pursuance of which defendant laid his hands upon the deceased upon three different occasions, and on each occasion the deceased freed himself from the grasp of defendant. The testimony on behalf of the state tends to show that the deceased did little more than decline to accompany the defendant, and that because of his declina-jury, returned a certain verdict. The question, and without other provocation, the de- tion was objected to, and the objection susfendant drew his pistol from his pocket and tained. No objection was made to the acshot him to death. The evidence shows that tion of the prosecuting attorney in prothe defendant fired four shots, from the ef- pounding the question. Under such circumfects of which the deceased immediately stances, it should not be assumed that the died. The evidence on behalf of the de- jury could have inferred that the witness fendant tends to show that after he had returned such a verdict as the attorney for tried to place the deceased in his custody the state suggested, nor could the jury have the deceased put his hand in his pocket, and inferred that the witness returned any verthat thereupon the mortal shot was fired. dict as a member of the coroner's jury. The defendant states on direct examination While statements of attorneys in the presthat he shot deceased in order to protect ence of a trial jury, or questions they prohimself from bodily harm, but his cross-ex- pound, are not evidence, they should not be amination shows that he shot the deceased permitted to make statements or ask quesbecause the deceased failed to remove his tions from which the jury could infer that hand from his pocket when defendant re- the matter about which such statements quested him to do so. His own testimony may be made, or questions asked, is in fact does not suggest that he was in imminent true. But we do not think any such inferdanger of attack, or that he had any cause ence could have been drawn by the jury in to believe that he was in imminent danger. this instance. Had the witness answered His whole testimony goes to show that he that he did return such a verdict, there murdered the deceased because the deceased would be more merit in the contention. would not remove his hand from his pocket. There is no question but that the verdict of the coroner's jury was inadmissible for any purpose, and when the prosecuting attorney asked the witness if he returned the verdict, to wit, "Upon formal inquiry concerning the facts, and careful examination of the body, we find the deceased came to his death by a wound from a pistol fired from the hands of Jasper Coleman, of Dalton, Missouri, and from evidence we find that the killing of Rufus Cox by Jasper Coleman was unjustified," objection was made by defendant, and was promptly sustained by the court. The killing is admitted, but attempted to be justified upon the ground of self-defense, so that, if defendant was in any way prejudiced by propounding the question to the witness with respect to the verdict, and reading the verdict in the presence of the jury, it was by the use of the words that the killing "was unjustified," at the conclusion of the verdict, but we do not think the verdict should be set aside on that ground. And, as there was no exception taken to the action of the prosecuting attorney in propounding the question, we do not think he was guilty of such impropriety as would justify this court in interfering with the verdict upon that ground, especially as the trial court refused to set aside the verdict on that ground. Hollenbeck v. Missouri P. R. Co. 141 Mo. 97, 38 S. W. 723, 41 S. W. 887.
There are a number of assignments of error which we do not think of sufficient importance to demand our attention, for in no event could the judgment be reversed because of the rulings of the court below upon them, so that we will direct our attention to such matters as seem to require more serious consideration.
The first of these is in relation to the testimony of one James Winkler, a witness for the state, who testified over the objections of defendant to threats made by defendant a year or eighteen months before the trial that he was going to shoot Rufus Cox, having prepared himself with a shotgun for the purpose, and was lying in wait for him, but that the witness discovered defendant, and dissuaded him from his purpose. The contention is that the threats were too remote to be competent, and especially so since there was no evidence of any threats or bad blood on the part of the defendant since that time. But it is well settled that, in trials for murder, threats made by the defendant towards the deceased are competent, and the nearness or remoteness of the time when made to the date of the homicide does not affect their competency as evidence. State v. Adams, 76 Mo. 357; State v. Grant, 79 Mo. 137, 49 Am. Rep. 218; State v. McNally, 87 Mo. 644; State v. Glahn, 97 Mo. 679, 11 S. W. 260.
It is said for defendant that the evidence | admitted in evidence before the jury as was insufficient, under all the facts in the tending to prove defendant's good faith in case, to convict the defendant of any offense attempting to arrest deceased; but the jury with which he is charged in the informa- are instructed that under the said ordition. That the defendant was an officer of nances and records the selling of fish, or an the law, and that the deceased knew him to obstruction of the sidewalk, did not constibe such, are clear. It is equally clear, un- tute an offense thereunder, and does not der the facts of this case, that it was the justify or excuse the defendant for shootduty of defendant, as such officer, to arrest ing deceased." This instruction seems to the deceased, and to use sufficient force to us to be misleading, in that, while it tells accomplish the arrest, and bring the de- the jury that the records, ordinances, and ceased within his control; but, if he used the verbal testimony of Mayor Seigle are more force than was reasonably necessary admitted in evidence as tending to prove for that purpose, and killed Cox, he was defendant's good faith in attempting to arguilty of a criminal offense, its grade de- rest deceased, it proceeds to say, "but pending upon the facts and circumstances in evidence. State v. Dierberger, 96 Mo. 666, 9 Am. St. Rep. 380, 10 S. W. 168; State v. Rose, 142 Mo. 418, 44 S. W. 329; State v. Lane, 158 Mo. 572, 59 S. W. 965. There was, we think, an abundance of evidence to take the case to the jury upon this feature of the case.
under said ordinances and records the selling of fish, or an obstruction of the sidewalk, did not constitute an offense thereunder, and does not justify or excuse the defendant for shooting deceased," and so couples the absence of excuse for shooting deceased with the preceding part of the instruction as to neutralize the question of good faith on the part of defendant in his efforts to make the arrest. In a word, want of excuse, as here used, seems to be inconsistent with good faith.
It is also claimed by defendant that the court erred in giving instruction No. 4, because of the want of testimony upon which to base it. It reads as follows: "(4) Court instructs the jury that, if verbal It is insisted by defendant that instrucstatements of the defendant have been tion numbered 9, given on the part of the proved in the case, you may take them into state, is erroneous, in that it omits the quesconsideration, with all the other facts and tion of reasonable doubt; but this question circumstances proved. What the proof is covered by one general instruction given may show you, if anything, that the defend-upon the part of the state, by which the ant has said against himself, the law pre- jury were told that before they could consumes to be true, because said against him- vict the defendant they must find him guilty self; but anything you may believe from as charged, beyond a reasonable doubt. the evidence the defendant said in his own This was all that was necessary. It is not behalf you are not obliged to believe, but essential that it should be repeated in any you may treat the same as true or false, other instruction. when considered with a view to all the other facts and circumstances in the case." Conceding that there was no evidence upon which to base the instruction, we are not inclined to think the judgment should be reversed upon that ground. Certainly this could not be done unless the error was prejudicial to defendant, and, while the presumption is that an error made against a defendant when on trial for crime is prejudicial, this presumption may be overcome by the facts and circumstances in evidence, if sufficient, and we can but conclude from the facts disclosed by the record that the error was not prejudicial. In fact, we are unable to see in what way defendant was prejudiced, and we are of the opinion that he was not; hence the error was not prejudicial.
Instruction numbered 8, given on the part of the state, is also complained of. This instruction reads as follows: "The records and ordinances, and as well, also, the verbal testimony of Mayor Seigle, have been
It seems that the court struck out that part of instruction numbered 11 asked by defendant which told the jury that defendant had the right to take the life of the deceased in the event of the failure of deceased to submit to arrest, and then gave it, and, in so doing, defendant insists, committed error. If the attempt to arrest deceased had been for felony committed by him, defendant's contention would be correct; but, where the attempt to arrest is for a misdemeanor or breach of the peace, "it is not lawful to kill the party accused if he fly from the arrest, though he cannot otherwise be overtaken, and though there be a But, warrant to apprehend him. as in case of felony, so here, if the officer meet with resistance and kill the offender in the struggle, he will be justified." 1 East, P. C. 302. "When, as a general proposition, one refuses to submit to arrest after he has been touched by the officer, or endeavors to break away after the arrest is effected, he may be lawfully killed, provided