assigned error in Missouri

1922Appellant cites as authorities to sustain the assigned error, section 4025, Revised Statutes 1919, and State v. Anslinger, 171 Mo. 600 , 71 S. W. 1027 ; State v. Baird, 231 S. W. 625 .

1907In support of this assignment we are referred by the learned counsel for the defendant to a line of decisions by this court commencing with State v. Blitz, 171 Mo. 530 , in which for the first time section 4680, Revised Statutes 18991, was construed.

1981The trial court relied upon Gerberding v. State, 433 S.W.2d 820 (Mo.1968), in refusing to consider appellant’s claim.

1970The answer was clearly admissible, as a part of the res gestae, and in such a case it is not incompetent because it tended to show defendant guilty of robbery as well as rape.” State v. Taylor, 118 Mo. 153 , 22 S.W. 806 .

1970The answer was clearly admissible, as a part of the res gestae, and in such a case it is not incompetent because it tended to show defendant guilty of robbery as well as rape." State v. Taylor, 118 Mo. 153 , 22 S.W. 806 .

1967“If, however, there were errors in the instruction on the lesser offense of manslaughter, possibly there could be ground for complaint on the theory that an erroneous manslaughter instruction prevented the jury from convicting of that lesser crime rather than of murder in the second degree.” State v. Brooks, Mo., 360 S.W.2d 622, 628 ; State v. Aitkens, 352 Mo. 746, 763 , 179 S.W.2d 84, 94 .

1967“If, however, there were errors in the instruction on the lesser offense of manslaughter, possibly there could be ground for complaint on the theory that an erroneous manslaughter instruction prevented the jury from convicting of that lesser crime rather than of murder in the second degree.” State v. Brooks, Mo., 360 S.W.2d 622, 628 ; State v. Aitkens, 352 Mo. 746, 763 , 179 S.W.2d 84, 94 .

1967“If, however, there were errors in the instruction on the lesser offense of manslaughter, possibly there could be ground for complaint on the theory that an erroneous manslaughter instruction prevented the jury from convicting of that lesser crime rather than of murder in the second degree.” State v. Brooks, Mo., 360 S.W.2d 622, 628 ; State v. Aitkens, 352 Mo. 746, 763 , 179 S.W.2d 84, 94 .

1939In the case of State v. Duncan, 336 Mo. 600 , 80 S.W.2d 147 , l.c. 153 (14), an instruction on flight was condemned for two reasons: First, because the instruction in that case assumed that the defendant fled; second, because the instruction did not inform the jury that if defendant fled for some reason other than to escape prosecution then the fact that he fied should not be *Page 79 considered.

1939In the case of State v. Duncan, 336 Mo. 600 , 80 S.W.2d 147 , l.c. 153 (14), an instruction on flight was condemned for two reasons: First, because the instruction in that case assumed that the defendant fled; second, because the instruction did not inform the jury that if defendant fled for some reason other than to escape prosecution then the fact that he fied should not be *Page 79 considered.

1937Under the decisions of this court in State v. Speritus, 191 Mo. 24 , 90 S.W. 459 , State v. Jones, 191 Mo. 653 , 90 S.W. 465 , and State v. Corrigan, 262 Mo. 195 , 171 S.W. 51 , the admission of that evidence was justified.

1937Under the decisions of this court in State v. Speritus, 191 Mo. 24 , 90 S.W. 459 , State v. Jones, 191 Mo. 653 , 90 S.W. 465 , and State v. Corrigan, 262 Mo. 195 , 171 S.W. 51 , the admission of that evidence was justified.

1937Under the decisions of this court in State v. Speritus, 191 Mo. 24 , 90 S.W. 459 , State v. Jones, 191 Mo. 653 , 90 S.W. 465 , and State v. Corrigan, 262 Mo. 195 , 171 S.W. 51 , the admission of that evidence was justified.

1937Under the decisions of this court in State v. Speritus, 191 Mo. 24 , 90 S.W. 459 , State v. Jones, 191 Mo. 653 , 90 S.W. 465 , and State v. Corrigan, 262 Mo. 195 , 171 S.W. 51 , the admission of that evidence was justified.

1937Under the decisions of this court in State v. Speritus, 191 Mo. 24 , 90 S.W. 459 , State v. Jones, 191 Mo. 653 , 90 S.W. 465 , and State v. Corrigan, 262 Mo. 195 , 171 S.W. 51 , the admission of that evidence was justified.

1937Under the decisions of this court in State v. Speritus, 191 Mo. 24 , 90 S.W. 459 , State v. Jones, 191 Mo. 653 , 90 S.W. 465 , and State v. Corrigan, 262 Mo. 195 , 171 S.W. 51 , the admission of that evidence was justified.

1934The general complaint alleged against the giving of said instructions is that they and each disregard the rule that, where qualified privilege is claimed for the communication complained of, the privilege is said to rebut the presumption of express malice implied from the defamatory subject-matter of the communication and the burden of proof is cast upon the plaintiff to prove express malice on the part of the author; and the complaint cites Lee v. Fuetterer Battery Supplies Co., 23 S.W.2d 45 , l.c. 63; with Peak v. Taubman, 251 Mo. 390 , 158 S.W. 656 , and other cases of like import in its su

1934The general complaint alleged against the giving of said instructions is that they and each disregard the rule that, where qualified privilege is claimed for the communication complained of, the privilege is said to rebut the presumption of express malice implied from the defamatory subject-matter of the communication and the burden of proof is cast upon the plaintiff to prove express malice on the part of the author; and the complaint cites Lee v. Fuetterer Battery Supplies Co., 23 S.W.2d 45 , l.c. 63; with Peak v. Taubman, 251 Mo. 390 , 158 S.W. 656 , and other cases of like import in its su

1934The general complaint alleged against the giving of said instructions is that they and each disregard the rule that, where qualified privilege is claimed for the communication complained of, the privilege is said to rebut the presumption of express malice implied from the defamatory subject-matter of the communication and the burden of proof is cast upon the plaintiff to prove express malice on the part of the author; and the complaint cites Lee v. Fuetterer Battery Supplies Co., 23 S.W.2d 45 , l.c. 63; with Peak v. Taubman, 251 Mo. 390 , 158 S.W. 656 , and other cases of like import in its su

1931Green v. Terminal Railroad Assn. 211 Mo. 18 , 109 S.W. 715 ; Empire Building Co. v. Hopkins, 204 Mo. 643 , 103 S.W. 66 .] But here the trial court ordered a new trial and specified as ground therefor that there is "no evidence to support the defense of estoppel." At the close of all the testimony, the plaintiffs requested the court to instruct the jury "that under the law and evidence" the finding must be for plaintiffs, duly objected and excepted *Page 426 to the refusal of same and in their motion for a new trial assigned as error the action of the trial court thereon.

1931Green v. Terminal Railroad Assn. 211 Mo. 18 , 109 S.W. 715 ; Empire Building Co. v. Hopkins, 204 Mo. 643 , 103 S.W. 66 .] But here the trial court ordered a new trial and specified as ground therefor that there is "no evidence to support the defense of estoppel." At the close of all the testimony, the plaintiffs requested the court to instruct the jury "that under the law and evidence" the finding must be for plaintiffs, duly objected and excepted *Page 426 to the refusal of same and in their motion for a new trial assigned as error the action of the trial court thereon.

1931Green v. Terminal Railroad Assn. 211 Mo. 18 , 109 S.W. 715 ; Empire Building Co. v. Hopkins, 204 Mo. 643 , 103 S.W. 66 .] But here the trial court ordered a new trial and specified as ground therefor that there is "no evidence to support the defense of estoppel." At the close of all the testimony, the plaintiffs requested the court to instruct the jury "that under the law and evidence" the finding must be for plaintiffs, duly objected and excepted *Page 426 to the refusal of same and in their motion for a new trial assigned as error the action of the trial court thereon.

1931Green v. Terminal Railroad Assn. 211 Mo. 18 , 109 S.W. 715 ; Empire Building Co. v. Hopkins, 204 Mo. 643 , 103 S.W. 66 .] But here the trial court ordered a new trial and specified as ground therefor that there is "no evidence to support the defense of estoppel." At the close of all the testimony, the plaintiffs requested the court to instruct the jury "that under the law and evidence" the finding must be for plaintiffs, duly objected and excepted *Page 426 to the refusal of same and in their motion for a new trial assigned as error the action of the trial court thereon.

1926In answer to this point, we need only suggest that the cage is one in equity, being a suit to enforce a lien. [Bates v. Comstock Realty Co., 306 Mo. 312, 321 ; City of Rolla ex rel. v. Schuman, 189 Mo. App. 252 .] Under the provisions of section 1398, Revised Statutes 1919, defendants were not entitled to trial by jury and the ruling of the court was proper in respect thereto.

1926In answer to this point, we need only suggest that the cage is one in equity, being a suit to enforce a lien. [Bates v. Comstock Realty Co., 306 Mo. 312, 321 ; City of Rolla ex rel. v. Schuman, 189 Mo. App. 252 .] Under the provisions of section 1398, Revised Statutes 1919, defendants were not entitled to trial by jury and the ruling of the court was proper in respect thereto.

1924Counsel for defendant has cited upon this, Jamison v. Zausch, 227 Mo. 406 ; Bartlett v. Ball, 142 Mo. 28 ; Reed v. Swan, 133 Mo. 100 ; State ex rel. v. Wofford, 121 Mo. 61 , and other like cases, decided by this court and the courts of other states.

1924Counsel for defendant has cited upon this, Jamison v. Zausch, 227 Mo. 406 ; Bartlett v. Ball, 142 Mo. 28 ; Reed v. Swan, 133 Mo. 100 ; State ex rel. v. Wofford, 121 Mo. 61 , and other like cases, decided by this court and the courts of other states.

1924Counsel for defendant has cited upon this, Jamison v. Zausch, 227 Mo. 406 ; Bartlett v. Ball, 142 Mo. 28 ; Reed v. Swan, 133 Mo. 100 ; State ex rel. v. Wofford, 121 Mo. 61 , and other like cases, decided by this court and the courts of other states.

1924Counsel for defendant has cited upon this, Jamison v. Zausch, 227 Mo. 406 ; Bartlett v. Ball, 142 Mo. 28 ; Reed v. Swan, 133 Mo. 100 ; State ex rel. v. Wofford, 121 Mo. 61 , and other like cases, decided by this court and the courts of other states.

1923RAGLAND, C., in a carefully prepared opinion, concurred in by both commissioners and all the judges of Division One, after reviewing the authorities, referred to an opinion of Judge NORTONI'S in the case of Letanovsky v. Shoe Co., 157 Mo. App. 120 , where it was held to be a question for the jury as to whether defendant was negligent in failing to provide a guard for a splitting machine in a shoe factory.

1922Appellant cites as authorities to sustain the assigned error, section 4025, Revised Statutes 1919, and State v. Anslinger, 171 Mo. 600 , 71 S. W. 1027 ; State v. Baird, 231 S. W. 625 .

1922For the purpose of disposing of this appeal the alleged error, if error, is not available to this defendant, and this because the defendant when placed on the stand admitted that he had done the identical things which were declared in the case of State v. Smith, 233 Mo. 242 , 135 S. W. 465 , as being a violation of the statute under which he was charged.

1922For the purpose of disposing of this appeal the alleged error, if error, is not available to this defendant, and this because the defendant when placed on the stand admitted that he had done the identical things which were declared in the case of State v. Smith, 233 Mo. 242 , 135 S. W. 465 , as being a violation of the statute under which he was charged.

1922Appellant cites as authorities to sustain the assigned error, section 4025, Revised Statutes 1919, and State v. Anslinger, 171 Mo. 600 , 71 S. W. 1027 ; State v. Baird, 231 S. W. 625 .

1916In the ease of State v. Kelly, 245 Mo. 489 , it was held to be error to instruct the jury, in a case of this character, that the law presumes that every woman is of chaste character until the contrary appears.

1915The motion for a new trial was overruled and the defendant appealed to the Supreme Court of this State from whence it was transferred ( 174 S. W. 381 ) to this court for the reason that the effort of the defendant to raise a constitutional question was not timely made.