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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 It is admitted that in that case the hus- said, he made no settlement of the estate band and wife were both alive, and he could beyond her lifetime. The death of the wife not, therefore, be tenant by the curtesy; renders the tenancy by curtesy consummate and it is said that the question as to the or complete. Inasmuch, therefore, as this right of the husband to curtesy, after the deed makes no settlement of the land in the wife's death, was not involved in that case. event of the wife's death but provides only

In Frazer v. Hightower, 12 Heisk. 94, the for dominion and control over it during the husband had conveyed to a trustee for his coverture, the husband thereby abridged his wife certain lands; and the question was estate for that period only, and, having surwhether the husband, after the death of the vived her, he is entitled to take as tenant wife, took an estate by curtesy in the lands by the curtesy. We see no reason why he so conveyed to the trustee. In that case it shall not be taken to have intended, when have supposed by his transfer or other deed Clarke, 6 Grant, Ch. (U. C.) 474. The court that he was about to deprive himself of the says that where a gift is intended to be made use of the property. By law he was entitled of property, but in the mode in which it is into the management of the separate property tended to be made it is imperfect, a court of of his wife and to support out of its proceeds, equity will not compel the donor or his rephaving no property of his own. If there ever resentatives to complete it. The court admits was a case when the court would depart from that a husband may make a gift to his wife. the ordinary rule of decision, and under its and that the intention to do so was manifest. power of doing what is just and right make but states that the gift was imperfect. All such provision as would meet the extraordinary was not done that might have been done; and circumstances of the particular case, this is the court will not, at the instance of a volunone which strongly demands the interposition teer, compel its completion. of the court.

A provision in a conveyance by a man

his wife that the property shall revert to him XI. Form and provisions of conveyance. upon her death without having disposed of the

property will be given effect. Pollard v. Union When a deed is not sufficient to pass the es- Nat. Bank, 4 Mo. App. 408. tate out of the hands of the conveyer, but If the conveyance to the wife is made under the party must come into equity, the court the express agreement on her part to reconvey has never yet executed a voluntary agreement. I to the husband on his request, she has no inTo do so would be to make him who does not, terest which will descend to her heirs. Cotton sufficiently convey, and his executors after bis i v. Wood, 25 Iowa, 43. death, trustees for the person to whom he had The mere fact that a deed of separation proso defectively conveyed; and there is no case | vides that no suit shall be brought against the where a court of equity has ever done that. husband on behalf of the wife to compel him Whenever you come into equity to raise an to make her a further allowance does not preinterest by way of trust you must have a clude her, in case of her bringing a bill for valuable, or at least a meritorious, considera- divorce because of his subsequent adultery, detion. ('olman v. Sarrel, 1 Ves. Jr. 54.

manding alimony from his estate. Morrall V. In Machen v. Machen, 15 Ala. 373, the Morrall, L. R. 6 Prob. Div. 98. court, upon the authority of Gamble v. Gamble, ! A gift from husband to wife will not bar 11 Ala. 966, held that parol declarations by dower unless given with a condition to that a man that slaves belonged to his wife did effect, or granted as a jointure. Bubier not have the effect of vesting the title in her Roberts, 49 Me. 460; Reed v. Dickerman, 12 as against his executors.

Pick. 148. And the Machen Case was followed in Frier- Where a man who, by marriage articles, had son v. Frierson, 21 Ala. 519, and Machen v. agreed that his wife should have a third of . Machen, 38 Ala. 364.

his personal property in case of his death, A gift of notes and mortgages by husband gave to her during his lifetime certain annuto wife may be effected by handing them to her ities which she claimed to hold in addition to with directions to take care of them, accom- the portion provided for by the articles, the panied with the statement that they are for court said that the transfer is not a good transthe donee and the children. Mack v. Mack,

fer so to affect the marriage articles by 3 Hun, 325, 5 Thomp. & C. 530.

making an alteration in the gross estate of The settlement must be in such form as to the testator, the whole of which was liable by place the property within the power and under the marriage articles to be divided into such the control of the wife. Townsend v. Maynard, proportions which he could not voluntarily al45 Pa. 198.

ter, and therefore this grant is a fraud on the To be enforced in equity a bill of sale from articles, yet it is good as against the testator husband to wife must have been delivered. himself, and to be answered out of his testaDyer v. Bean, 15 Ark. 519.

mentary share if suflicient; and in this court A mere written transfer upon the back of a gifts between husband and wife have often been mortgage without seal, although it purported supported, though the law does not allow the to be a sealed transfer, is not sufficient to property to pass. Lucas v. Lucas, 1 Atk. 270. vest any interest in the wife. Tiffany v.

H. P. F.



he made this conveyance to his wife, that, and, if she die intestate, to her heirs, free she was to hold the estate as every estate from any claim on the part of the husband of inheritance is held by a wife; that is, for curtesy or other interest; and that the subject to curtesy.”

case of a conveyance from a husband to the Referring again to the case of Barnum v. wife of real estate must, to this extent, be Le Master, the court said, in support of its distinguished from a conveyance by a third holding that “otherwise the wife would not person to the wife for her separate estate. only be deprived of all the fruits of owner- This case is distinguishable from the case slip during all this time (that is, during the of Carter v. Dale, 3 Lea, 710, 31 Am. Rep. marital relation), but she could not sell or 660, which was a conveyance from a third convey it without his consent and joinder in person to the wife, and not from the husband. the conveyance. A power in the husband This case is distinguishable, also, from over the disposition of the property often the case of Frazer v. Hightower, 12 Heisk. enables him to control and reacquire title 94. In the latter case the conveyance was in by reducing to possession the proceeds of trust for the wife, and the court construed the sale of it. The wife would acquire a the language of the conveyance to indicate bare right to sell with the concurrence of that the object of the husband was merely her husband while he lived, and only comes to secure to the wife the rents and profits into full ownership and enjoyment in the of her real estate during the marital relaevent she should survive him. An estate tion, and no longer. more in the nature of a remainder than an The decree of the chancellor as to the absolute one taking efiect immediately, which Beale-street property is also reversed ; Jacob the deed purports to pass, and wholly in Weller having no interest therein or claim consistent with the terms of the instrument.” | thereon.

We are of opinion that the conveyance of The costs of appeal will be paid equally real estate by the husband to the wife should by complainants and defendants, and of the have the same effect as the gift or transfer court below as directed by that court, and of personal property,—that is, to devest out the cause is remanded for further proceedof the husband all interest, present or con- ings under this holding and the agreements tingent, in the land; and upon the death of parties heretofore made, as shown by the of the wife the real estate should go to the record. devisees of the wife, if she make a will,


STATE of Missouri, Respt.,


Jasper COLEMAN, Appt.

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

(186 No. 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

was on trial was un justified. 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 mu

nicipal 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 instruc

tions, S. Mere failure of a person to submit

to arrest does not give the officer the right to take his life, although the of.

NOTE.--As to homicide by oflicers of justice, see also, in this series, State v. Phillips, 67 L. R. A. 292, and note.

As to admissibility of record of coroner's inquest in evidence, see also United es L. Ins. Co. v. Kielgast. 6 L. R. A. 65; Consolidated Ice Mach. Co. v. Keifer, 10 L. R. A. 696; and ('ox v. Royal Tribe of Joseph, 60 L. R. A. 020.


ficer has good reason to believe that he has State v. Furgerson, 152 Mo. 92, 53 S. W. authority to make the arrest; and, if the of- 427; 1 Bishop, Crim. Proc. 2d ed. $ 712, p. ficer acts in malice and with premeditation 442; State v. Stacy, 103 Mo. 11, 15 S. W. because the one he is attempting to arrest

147; State v. Meyers, 99 Mo. 107, 12 S. W. does not remove his hand from his pocket

516. upon command, the officer will be guilty of murder in the second degree.

Messrs. Edward C. Crow, Attorney Gen. 9. Failure to give an instruction which eral, and C. D. Corum, for respondent:

is not requested upon a matter to which the The competency of threats is not affected attention of the court is not called is not by remoteness. reversible error.

State v. McNally, 87 Mo. 644; State v. 10. Instructions predicated facts which do not exist are properly refused. Glahn, 97 Mo. 679, 11 S. W. 260; Underhill,

that 11. The omission of the recital

Crim. Ev. p. 392. an information for murder is upon

The rule that an officer has the right, in the oath of the prosecuting attorney is making an arrest, to use all the force necesfatal to its validity.

sary to overcome resistance, even to the 12. The question of the invalidity of taking of life, does not apply as to a misdean information may be raised for the first

meanor. time in the appellate court.

State v. Dierberger, 96 Mo. 666, 9 Am. St. 13. Failure of the clerk to indorse the Rep. 380, 10 S. W. 108; 2 Bishop, Crim.

word “Filed" upon an affidavit is a inere irregularity which may be amended at any

Law, $ 649; State v. UcMullin, 170 Mo. time before or during trial, and objection to 629, 71 S. W. 221. it cannot be made for the first time on appeal.

Burgess, J., delivered the opinion of the

court: (Valliant, J., dissents from proposition 5.

At the September term, 1903, of the cirGantt, J., dissents from proposition 11.)

cuit court of Chariton county, the defendant (February 2, 1905.)

was convicted of murder in the second degree, and his punishment fixed at twenty

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of the Circuit Court for Chariton Coun- under an information filed in the circuit ty convicting him of murder. Reversed. court of said county by the prosecuting at

The facts are stated in the opinion. torney of said county, charging him with

Messrs. Ball & Sparrow and A. W. having shot to death with a pistol at said Johnson, for appellant:

county on the 8th day of August, 1903, one The reading of the verdict of a coroner's Rufus Cox, against the peace and dignity of jury as evidence is error in any cause, civil the state. Defendant appeals. or criminal.

The facts, briefly stated, are that at the State v. Garth, 164 Mo. 553, 65 S. W. 275. I time of the homicide the defendant was

The fact that the court permitted the ver- marshal of the town of Dalton, in said coundict of the coroner's jury to be read in the ty. Deceased' lived in the county, and on the form of a question, and then sustained an day he was killed had gone to Dalton, takobjection by defendant, does not cure the ing some fish with him for sale, and was

vending them upon the sidewalks of the State v. Thomas, 99 Mo. 235, 12 S. W. town, in violation of a resolution of the 643; State v. Kuehner, 93 Mo. 193, 6 S. W. board of aldermen of the town, which the 118; State v. Fredericks, 85 Mo. 145; State marshal understood had theretofore been v. Mir, 15 Mo. 153.

adopted. When Cox arrived in town he esIt was the duty of defendant, under the tablished himself upon the sidewalk, and befacts in this case, to arrest the deceased. gan selling his fish. The defendant, as marTherefore, as such officer, he must, of ne- shal, advised Cox that an ordinance had been cessity, have been the aggressor. As such passed prohibiting the use of the pavement officer it was his duty to use sufficient force for such purposes, and requested him to to accomplish the arrest, and he must, of move his fish to some other place. It seems necessity, have been the judge of the force that the deceased at first demurred, but necessary to make the arrest, and to bring finally reluctantly removed his fish, at the the deceased within his control.

request of the defendant, to the inside of a State v. Dicrberger, 96 Mo. 666, 9 Am. store, and remained in the store until late St. Rep. 380, 10 S. W. 168; 2 Bishop, Crim. in the afternoon, when he again placed his Law, 6th ed. $$ 647, 651, pp. 354, 356; fish upon the sidewalk. The defendant State v. Rose, 142 Mo. 418, 44 S. W. 329; again remonstrated with him against using State v. Lane, 158 Mo. 572, 59 S. W. 965; the sidewalk for the purpose, and attempted State v. BcVally, 87 Mo. 644.

to get him to remove his fish. This the deThe information omits the words, “on his ceased declined to do, whereupon the deoath aforesaid,” and is insufficient.

fendant attempted to arrest him and lead him away, in pursuance of which defendant Defendant complains of the action of the laid his hands upon the deceased upon three court in permitting the attorney for the different occasions, and on each occasion the state to read to the court in the presence of deceased freed himself from the grasp of de- the jury the verdict of the coroner's jury. fendant. The testimony on behalf of the It was not read in evidence, but the attorney state tends to show that the deceased did for the state asked witness Davenport little more than decline to accompany the whether he, as a member of the coroner's defendant, and that because of his declina- jury, returned a certain verdict. The ques. tion, 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

There are a number of assignments of er- the coroner's jury was inadmissible for any ror which we do not think of sufficient im- purpose, and when the prosecuting attorney portance to demand our attention, for in no asked the witness if he returned the verdict, event could the judgment be reversed be to wit, “Upon formal inquiry concerning the cause of the rulings of the court below upon facts, and careful examination of the body, them, so that we will direct our attention we find the deceased came to his death by a to such matters as seem to require more wound from a pistol fired from the hands of serious consideration.

Jasper Coleman, of Dalton, Missouri, and The first of these is in relation to the tes from evidence we find that the killing of timony of one James Winkler, a witness for Rufus Cox by Jasper Coleman was unjustithe state, who testified over the objections fied," objection was made by defendant, and of defendant to threats made by defendant was promptly sustained by the court. The a year or eighteen months before the trial killing is admitted, but attempted to be justhat he was going to shoot Rufus Cox, hav- tified upon the ground of self-defense, so ing prepared himself with a shotgun for the that, if defendant was in any way prejupurpose, and was lying in wait for him, but diced by propounding the question to the that the witness discovered defendant, and witness with respect to the verdict, and dissuaded him from his purpose. The con- reading the verdict in the presence of the tention is that the threats were too remote jury, it was by the use of the words that the to be competent, and especially so since there killing "was unjustified,” at the conclusion was no evidence of any threats or bad blood of the verdict, but we do not think the veron the part of the defendant since that time. dict should be set aside on that ground. But it is well settled that, in trials for And, as there was no exception taken to the murder, threats made by the defendant action of the prosecuting attorney in protowards the deceased are competent, and pounding the question, we do not think he the nearness or remoteness of the time was guilty of such impropriety as would when made to the date of the homicide justify this court in interfering with the does not affect their competency as evi- verdict upon that ground, -especially as the dence. State v. Adams, 76 Mo, 357; State trial court refused to set aside the verdict v. Grant, 79 Mo. 137, 49 Am. Rep. 218; on that ground. Hollenbeck v. Missouri P. State v. McNally, 87 Mo. 644; State v. R. Co. 141 Mo. 97, 38 S. W, 723, 41 S. W. 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

under said ordinances and records in evidence. State v. Dicrberger, 96 Mo. the selling of fish, or an obstruction of the 666, 9 Am. St. Rep. 380, 10 S. W. 168; sidewalk, did not constitute an offense thereState v. Rose, 142 Mo. 418, 44 S. W. 329; under, and does not justify or excuse the deState v. Lane, 158 Mo. 572, 59 S. W. 965. fendant for shooting deceased," and so couThere was, we think, an abundance of evi- ples the absence of excuse for shooting dedence to take the case to the jury upon ceased with the preceding part of the inthis feature of the case.

struction as to neutralize the question of It is also claimed by defendant that the good faith on the part of defendant in his court erred in giving instruction No. 4, be- efforts to make the arrest. In a word, want cause of the want of testimony upon which of excuse, as here used, seems to be inconto base it. It reads as follows: “(4) sistent with good faith. 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 ques. consideration, 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 It seems that the court struck out that other facts and circumstances in the case.” part of instruction numbered 11 asked by Conceding that there was no evidence upon defendant which told the jury that dewhich to base the instruction, we are not fendant had the right to take the life of the inclined to think the judgment should be deceased in the event of the failure of dereversed upon that ground. Certainly this ceased to submit to arrest, and then gave could not be done unless the error was it, and, in so doing, defendant insists, comprejudicial to defendant, and, while the mitted error. If the attempt to arrest depresumption is that an error made against ceased had been for felony committed by a defendant when on trial for crime is him, defendant's contention would be corprejudicial, this presumption may be over- rect; but, where the attempt to arrest is for come by the facts and circumstances in evi- a misdemeanor or breach of the peace, “it dence, if sufficient, and we can but conclude is not lawful to kill the party accused if he from the facts disclosed by the record that fly from the arrest, though he cannot otherthe error was not prejudicial. In fact, we

wise be overtaken, and though there be a are unable to see in what way defendant warrant to apprehend him.

But, was prejudiced, and we are of the opinion as in case of felony, so here, if the officer that he was not; hence the error was not meet with resistance and kill the offender prejudicial.

in the struggle, he will be justified.” 1 Instruction numbered 8, given on the part East, P. C. 302. “When, as a general propof the state, is also complained of. This osition, one refuses to submit to arrest after instruction reads as follows: "The records he has been touched by the officer, or enand ordinances, and as well, also, the ver- deavors to break away after the arrest is efbal testimony of Mayor Seigle, have been | fected, he may be lawfully killed, provided

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