house was entered through a kitchen window, which had been left open at the bottom, by pushing up the sash high enough for a grown person to enter through it. Directly across the street from the residence of Gannon there lived one Philip Jamison and his family. On the same night his house was entered by a front window, and his pocketbook and gold watch-the watch a lady's watch-stolen. On the Monday evening following these burglaries there was deposited in a branch office of the Adams Express Company at the drug store of one Henry A. Kattelman a package of small size, addressed to Mr. B. Meyer, 305 South Lincoln street, Chicago, Ill. On the side of this package were the words, "From Mrs. E. Miller, North Eighteenth Street, St. Louis, Missouri." This was the name and residence of the defendant, and this place where she resided was less than two blocks distant from this drug store where the package was deposited. It seems to have been suspected that this package contained stolen property, and the manager of the express company called in two police officers, and the package was opened, and found to contain a gold watch, chain, and charm, and another gold watch case; this latter one, however, being broken into fragments. These articles were identified by the owners as the ones which had been stolen in the manner before described. The Gannon watch was easily identified by his name which was engraved upon it and by the number of the watch. The fragments of the other watch were identified as the Philip Jamison watch by the words, "Pleasanton, Kansas, 1883," engraved on the inside thereof, and by the initials of the owner, which were on the outside. When the defendant was arrested she at first denied any knowledge of these articles, and said to the police officers then present at her house: "If you think I have got anything here that you are looking for, go ahead and search the house. You have got my permission." The officers then searched her house, but found no stolen property. The property in question, however, had been sent, two days before, to the express office; but, after having learned that the officers were in possession of evidence showing that she had had possession of the articles, she said her son-in-law, B. Meyer, who was a dealer in old gold and silver in Chicago, had left them at her house, and that she had sent them to him by express. One of the officers told her that Meyer would be brought from Chicago so as to tell whether her story was true or not, whereupon she said she had bought the articles from a negro on Olive street. Later she said she bought them at her home on Eighteenth street. There was evidence that the Gannon watch was of the value of about $50, and the chain about $20. There was some evidence on the part of the defense tending to show that the value was less than $30. The defendant testified in

her own behalf, and said her name was Liberman, but it had been Esther Miller, and that she was still known by the latter name. She said she had at times been engaged in the business of buying and selling old gold and silver, and had distributed in various places cards, on which were printed these words: "E. Liberman pays highest price for old gold and silver. 1025 North Eighteenth street, St. Louis, Mo." She also testified that on the 29th day of April, Mrs. German, who occupied the lower story of the building, of which she occupied the upper, brought up to her apartments a nicelydressed colored man, who had one of her business cards, and told her he had a watch and chain for sale, he being, as he said, "hard up" for money; that she looked at the watch, saw the name on it, and asked the man whose name it was; and he replied that it was his own name. He asked $35 for the watch. She offered him $30, and they finally agreed on $31.50, and the sale was made. The man then produced some broken fragments of another watch, which he said belonged to his wife, and the defendant bought that also for old gold. Defendant said she did not notice the inscription "Pleasanton, Kansas, 1883,” nor the initials, on the broken watch. She asked the man how he came by her card, and he said some one gave it to him. She bought the articles with the idea that she could sell them for old gold at a profit of about five dollars. On the next Monday evening she packed the articles, and sent them by her son to the nearest branch office of an express company, which was at the drug store of Henry A. Kattelman. By her direction her son addressed the package to B. Meyer, Chicago, Ill. Meyer was her son-in-law, and was a jobber in old gold and silver. She also directed her son to write her address on the package, and this he did. Annie German, on behalf of the defendant, testified that she lived in the same house at 1025 North Eighteenth street, with the defendant, she occupying the lower and the defendant the upper story; that on the Saturday morning prior to the defendant's arrest a colored man rang her door bell, and asked for Mrs. Liberman. The witness said she took the man up to the defendant's apartments, and remained during the conversation between defendant and the colored man. Her testimony was corroborative of defendant's as to the facts and circumstances of the purchase of the articles from the negro by the defendant, and as to the conversation which defendant had testified to. Several witnesses testified that the reputation of the defendant for honesty was good.

The court gave 11 instructions, but only the third, fourth, ninth, and tenth are criticised. They read as follows: "Third. The word 'felonious,' as used in these instructions, means wicked, and against the admonition of the law, and the word 'feloniously,' as used in

these instructions, means wickedly and against the admonition of the law. Fourth. The jury are further instructed that, if they find and believe from the evidence that the watch, chain, and charm in question were feloniously stolen from the said prosecuting witness, Gannon, as stated in the foregoing instructions, and recently afterwards were found in the exclusive possession of the defendant, and that the defendant secreted the same, such possession and secretion of said property would be presumptive evidence that the defendant received said property so stolen knowing at the time that the same had been so stolen, and, if such presumption is not satisfactorily rebutted by other facts and circumstances in evidence, such presumption would warrant a verdict of guilty of having knowingly received said property with knowledge that the same had been so stolen, and such recent possession and secretion of said property so stolen, when taken in connection with other facts tending to establish guilt, would warrant the jury in finding the defendant guilty of receiving said property knowing that the same had been so stolen. The presumption of guilt arising from the mere naked fact of possession and secretion of stolen goods, when not corroborated or strengthened by other evidence as to the commission of the offense, would be rebutted by the fact of defendant's good character, if the jury believe from the evidence that she has sustained a good character, or by her satisfactorily accounting for such possession; but it is for the jury to say, after taking into consideration all the evidence in the case,-that in relation to the possession of the goods by the defendant, that in relation to her character, by statements or admissions made by the defendant in regard to the offense, if any, together with all the facts and circumstances in proof,-whether the defendant is guilty or not. If the jury believe, from all the facts, evidence, and circumstances in proof, that the defendant is guilty, they should find her guilty; otherwise, they should not find her guilty." "Ninth. The defendant is a competent witness in her own behalf, but the fact that she is a witness testifying in her own behalf, and the interest she has at stake in this case, may be considered by the jury in determining the credibility of her testimony. Tenth. The jury are instructed that they are the sole judges of the credibility of the witnesses and of the weight to be given to their testimony. In determining such credibility and weight they will take into consideration the character of the witness, his or her manner on the stand, his or her interest, if any, in the result of the trial, his or her relation to or feeling towards the defendant or prosecuting witness, the probability or improbability of his or her statements, as well as the facts and circumstances given in evidence. In this connection you are further instructed that, if you believe that any witness has knowingly sworn falsely to any material fact,

you are at liberty to reject all or any portion of such witness' testimony."

With respect to the third instruction it is claimed that the definition of the word "feloniously" as therein defined is a mere circumlocution, signifying nothing, and in no wise calculated to enlighten a jury, and therefore erroneous. While "feloniously" is, we think, inaccurately defined by the instruction, a similar definition in an instruction in State v. Parker, 106 Mo. 217, 17 S. W. 180, was held to be unobjectionable. But no such instruction was necessary (State v. Cantlin, 118 Mo. 100, 23 S. W. 1091), and, in any event, harmless.

It is insisted that the fourth instruction was erroneous because there was no evidence that defendant secreted the property. This depends altogether upon the facts connected with the transaction, and the motive which defendant had in placing the property in a box, then depositing it in the express office to be forwarded to Chicago. Similar transactions doubtlessly occur many times every day in the city of St. Louis, and of themselves are no evidence of the secretion of the property. But it is also true that stolen property is frequently disposed of the same way, in order to get it out of the possession of the guilty party, and away from the scene of the theft. That the property in question was stolen is not controverted, and, when first asked about it by the police officers, defendant denied knowing anything about it; then, after becoming aware that the officers knew. that she had been in possession of it, she made different and inconsistent statements as to how she came into its possession; and finally said, "Well, I might as well tell the truth about it." These facts did not comport very well with an honest possession of the property, nor with a purpose on defendant's part to dispose of it openly, as if honestly obtained, but tended to show that she was trying to get it out of her possession in a way that it could not be traced or found,-in other words, an intention to secrete it,—and, we think, justified the instruction. It is also argued that the instruction is faulty in that it says, "Such recent possession and secretion of the property so stolen, when taken in connection with other facts tending to establish guilt, would warrant the jury in finding the defendant guilty;" thereby leaving the jury to draw their own legal conclusions as to what was intended to establish guilt, and singles out certain features of the evidence to define the offense, and leave the jury to determine, both as to the law and fact, what was or was not necessary to warrant a verdict. While the instruction is subject to verbal criticism when taken altogether and in connection with the other instructions in the case, we do not think that the jury could have been misled, or the defendant prejudiced, thereby. There was abundant evidence that the property was stolen by another prior to its reception by defendant, and

having been found in her possession recently thereafter raised the presumption of guilt on her part that she received it with the knowledge that it was stolen, if she failed to satisfactorily explain how she acquired possession. State v. Guild, 149 Mo. 370, 50 S. W. 909.

It is claimed that the ninth instruction should not have been given, especially in connection with the tenth. Similar instructions have been so often approved by this court that it would be a useless expenditure of time to enter into a discussion of them, and we must decline to do so. Finding no reversible error in the record, we affirm the judgment.

1. Rev. St. 1889, § 7531, requires an assessor to list the taxable personalty in his county, and assess its value, and for this purpose requires each person to make a sworn statement of all his taxable property, except merchandise, and of its value; and that such list shall contain, inter alia, a list of all the real estate, and its value. Section 7532 provides that the assessor shall make the assessment "as required by this chapter" when the taxpayer neglects or refuses to deliver a statement. Sections 7551 and 7553 provide that the assessor shall include in his assessor's book a complete list of all taxable property, devoting one part thereof to what is to be known as the "land list," which shall contain all the land by him assessed; and provide that he shall value and assess all prop⚫erty on his books at and according to its value at the time of the assessment. Held, in view of the foregoing provisions, that an assessor was not bound by the sworn value of land listed by a taxpayer.

2. Rev. St. 1889, §§ 7571, 7572, 7574, providing for the return to the county court of a sworn copy of an assessor's books, so that, when the same is filed, it will impart notice to all of its contents, and providing for an appeal from any assessment by any person who feels aggrieved thereby, affords a taxpayer ample means for the redress of an unjust or unauthorized assessment; and hence, in the absence of a willful and intentional assessment of property at more than its true value, the owner is not entitled to recover in an action against the assessor and his bondsmen for raising the value of his land above that sworn to by him pursuant to section 7531.

Sherwood and Marshall, JJ., dissenting.

In banc. Appeal from circuit court, Reynolds county; J. F. Green, Judge.

Action by the state, on the relation and to the use of James T. Dobbins, against I. F. Reed and others. From a judgment for defendants, relator appeals. Affirmed.

The following is the opinion in division No. 2:

BURGESS, J. This is an action by the state, at the relation and to the use of James T. Dobbins, against the defendant I. F. Reed,

The

assessor of Reynolds county, upon his of ficial bond as such assessor. The other defendants are his sureties on said bond. trial was before the court, a jury being waived. On September 23, 1893, defendant, as assessor, called upon the relator, Dobbins, a resident of Reynolds county, at his office in Lesterville, and requested of him a list of his taxable property for assessment. Dobbins at once made out a list of his taxable property, fixed the value of his land, and delivered the list to Reed. The list contained seven different tracts of land. Reed then swore Dobbins to the list. He then stated to him that he could not assess his land at a lower assessment than that at which it had been fixed by his predecessor in office for the previous year. When Reed made out his assessor's books for the year 1894, he changed the assessment of each of said tracts by placing the values on the book at a different and higher value than appeared on the assessment list as delivered to him by Dobbins. The assessment list was never changed, but was filed by Reed in county clerk's office of said county. Dobbins was never given any actual notice of these changes, and never learned of them until after he had paid the taxes on said tracts in December, 1894. Reed filed a copy of his assessor's book in the county clerk's office of said county on January 23, 1894. The taxes levied for state, county, school, and road purposes for the year 1894 were, by the county clerk of said county, extended on the copy of said assessor's book as the taxes due on said tracts for the year 1894. The extension was made on the basis of values fixed by the assessor, and not as fixed by the relator. the close of all the evidence defendant interposed a demurrer to the evidence, which was sustained, and judgment rendered in accordance therewith. The case is before us for review upon plaintiff's appeal.

At

Plaintiff claims that the action of defendant in raising the value of his property as fixed by him (plaintiff) was without authority of law, and wrongful, by reason of which he was damaged in the sum of $1,000. If the assessor was bound by the value of the land fixed by Dobbins, and without authority to fix it at a higher rate, there can be no question as to the correctness of plaintiff's position. Is this position correct? Section 7531, Rev. St. 1889 (which was amended in 1893 by requiring assessments to be made annually instead of biennially), requires that the assessor, between the 1st days of June and January, shall proceed to take a list of the taxable personal property in his county, and assess the value thereof. For this purpose he shall call at the office or residence of each person required by law to list property, and shall require such person to make a correct statement of all taxable property owned or under the charge or management of such person, except merchandise; and the person listing the property shall enter a

true and correct statement of such property in a printed or written blank prepared for that purpose, which statement, after being filled out, shall be signed and sworn to, to the extent required by this chapter, by the person listing the property, and delivered to the assessor. Such list shall contain, first, a list of all the real estate, and its value. While the above section requires that the list to be furnished to the assessor by the taxpayer shall contain, first, a list of the real estate, and its value, and while said section requires the taxpayer to make affidavit to such list, yet that is not binding on the assessor, nor does said list constitute the assessment of the taxpayer's real estate. Section 7532, Rev. St. 1889, explains section 7531, supra, and shows conclusively that said section 7531 does not authorize the taxpayer to value his property, nor the assessor to accept the valuation fixed by the taxpayer upon his list. Section 7532, supra, provides: "If any person required by this chapter to list property shall be sick or absent when the assessor calls for a list of his property the assessor shall leave at the office or usual place of residence or business of such person a written or printed notice, requiring such person to make out and leave at the place named by said assessor * a sworn statement of the property which he is required to list, and shall leave with such notice a written or printed blank for the statement required of such person. • * And if any such person shall neglect or refuse to deliver the statement, properly made out, signed and sworn to, as required, the assessor shall make the assessment as required by this chapter." Section 7551, Rev. St. 1889, provides that: "The assessor, on examination and comparison of the list of property delivered by individuals, and the lists of lands furnished by the register of lands, and said maps and plats, and after diligent efforts for ascertaining all taxable property in his county, shall make a complete list of all the taxable property in his county, to be called the assessor's book." Section 7553, Rev. St. Mo., provides for the arrangement of the assessor's book. It is divided into two parts; part first to be known and denominated the "land list." This list shall contain all the lands by him assessed. It provides in detail how the land list shall be arranged on said book. There is nothing said in these sections about the valuation of the listed property until we reach the last one, and that provides that the assessor shall value and assess all the property on the assessor's book according to its value in money at the time of the assessment. Each tract of land and town lot shall be assessed and valued separately. When, then, is the time at which the assessment of real property is required to be made? Certainly it is not at the time the owner of the land delivers his list to the assessor, nor until the assessor enters the list upon his assessor's book, because by the very letter of

the statute he is required to value and assess all property on the assessor's book, which clearly means that it cannot be assessed until the list is copied into the assessor's book. It is not so with respect to personal property, which he is required to assess according to its cash price at the time of listing the same for taxation. By section 7571, the assessor is required to make out and return to the county court, on or before the 20th day of January in every year, a fair copy of the assessor's books, verified by his affidavit, annexed thereto, to the effect that he has made diligent efforts to ascertain all the taxable property being or situate on the 1st day of June last past in the county of which he is assessor; that, so far as he has been able to ascertain the same, it is correctly set forth in the assessor's books to which it is affixed in the manner and the value thereof stated therein, according to the mode required by law. When a copy of this book is filed with the county clerk, it imparts notice to everybody of its contents. And section 7572 provides for an appeal from any assessment by any person who feels himself aggrieved thereby to the county court of the county, whose duty it is to hear and determine the appeal in a summary way, and to correct and adjust the assessor's books if error has been committed in the assessment. Section 7574, Rev. St. 1889. It thus appears that the law afforded relator ample means for the redress of any unjust or unauthorized action of the assessor in assessing his land, and, in the absence of the willful and intentional assessment of it by defendant at more than its true value in money at that time, relator is not entitled to recover in this action. For these considerations, we affirm the judgment.

GANTT, P. J., and SHERWOOD, J., con

cur.

Wm. L. Byersdorff and Raney & Carty, for appellant. Louis F. Dinning, R. I. January, and W. H. Hamel, for respondents.

PER CURIAM. Upon a rehearing by the court in banc, the foregoing opinion of BURGESS, J., in division No. 2, is approved and adopted by the court in banc.

GANTT, C. J., and ROBINSON, BRACE, and VALLIANT, JJ., concur. SHERWOOD and MARSHALL, JJ., dissent.

STATE v. PHELAN. (Supreme Court of Missouri, Division No. 2. Dec. 18, 1900.) OBTAINING PROPERTY BY FALSE PRETENSES -INDICTMENT-SUFFICIENCY.

An indictment for obtaining property by false pretenses, which alleges that the prosecuting witness, by such false pretenses, "was induced to then and there sell and deliver" the property to defendant, is bad for failure to allege that such witness did sell and deliver the property, since the allegations are not equival

Appeal from circuit court, Vernon county; H. C. Timmonds, Judge.

Walter Phelan was convicted of obtaining personal property by false pretenses, and appeals. Reversed.

A. J. King and A. J. Smith, for appellant. The Attorney General and Sam B. Jeffries, for the State.

GANTT, P. J. The defendant was indicted, tried, and convicted in the circuit court of Vernon county at the October term, 1899, and from that conviction appeals to this court.

The indictment is as follows: "State of Missouri, County of Vernon-ss.: In the Criminal Court, April term, 1899. Indictment. The grand jurors for the state of Missouri, summoned from the body of the county of Vernon, now here in court, duly impaneled, sworn, and charged to inquire within and for the body of the county of Vernon and state of Missouri, upon their oath do present and charge that one Walter Phelan, late of the county and state aforesaid, on or about the 22d day of September, A. D. 1899, at the county of Vernon and state of Missouri, then and there contriving, designing, and intending to cheat and defraud Thomas Cain and Amanda Cain of their personal property, valuable things, and effects, did apply to and request the said Thomas Cain and Amanda Cain to sell or trade him, the said Walter Phelan, certain personal property, valuable things, and effects, and to induce the said Thomas Cain and Amanda Cain to sell or trade to him, the said Walter Phelan, said personal property, valuable things and effects, and to effect his said design and intent to cheat and defraud the said Thomas Cain and Amanda Cain, he, the said Walter Phelan, did then and there unlawfully, designedly, feloniously, and falsely represent, pretend, and state to the said Thomas Cain and Amanda Cain, that he, the said Walter Phelan, was then and there the owner of one-half interest in a livery stable and stock of horses in the town of Dexter, in Stoddard county, Missouri; that, if the said Thomas Cain and Amanda Cain would sell or trade to him, the said Walter Phelan, among other personal property, valuable things, and effects then owned by and in the possession of the said Thomas Cain and Amanda Cain, one team of horses, to wit, one bay mare seven years old, of the value of fifty dollars, and one bay mare about ten years old, of the value of fifty dollars, of the aggregate value of one hundred dollars, that he, the said Walter Phelan, in exchange for said horses would give to them, the said Thomas Cain and Amanda Cain, horse for horse, out of his, Walter Phelan's, livery stable in the town of Dexter, Stoddard county, Missouri; that

stable in Stoddard county, Missouri, were as good, if not better, and of more value than said team of horses of Thomas Cain and

Amanda Cain; that as soon as Thomas Cain and Amanda Cain should arrive at the town of Dexter, Stoddard, county, Missouri, that he, the said Walter Phelan, would deliver to them, the said Thomas Cain and Amanda Cain, out of the livery stock aforesaid, a team of horses as good or better than those of Thomas and Amanda Cain, and that he, the said Walter Phelan, would make them, the said Thomas Cain and Amanda Cain, perfectly satisfied; and the said Thomas Cain and Amanda Cain, believing said false pretenses and false representations so made as aforesaid by the said Walter Phelan to be true, and relying on the same, and being deceived thereby, were induced by reason thereof to then and there sell and deliver to the said Walter Phelan the following personal property, to wit, one bay mare seven years old, of the value of fifty dollars, and one bay mare about ten years old, of the value of fifty dollars, of the aggregate value of one hundred dollars, of the personal property of the said Thomas Cain and Amanda Cain; and the said Walter Phelan, by means of the false pretenses and representations so made as aforesaid, unlawfully, feloniously, and designedly did obtain and receive of and from the said Thomas Cain and Amanda Cain the personal property above mentioned, with the intent them, the said Thomas Cain and Amanda Cain, then and there to cheat and defraud; whereas, in truth and in fact the said Walter Phelan was not then and there the owner of a one-half interest in a livery stable and stock of horses in the town of Dexter, Stoddard county, Missouri, and had no interest whatever in any livery stable and stock of horses in the town of Dexter, Stoddard county, Missouri, and did not give to them, the said Thomas Cain and Amanda Cain, horse for horse, for the horses by them delivered to the said Walter Phelan, as so falsely represented by him, the said Walter Phelan, to the said Thomas Cain and Amanda Cain, as aforesaid; all of which pretenses and representations so made as aforesaid he, the said Walter Phelan, then and there well knew to be false, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Missouri."

The evidence tended to prove that defendant, Phelan, lived at Dexter, Mo., and in 1898 had taken his wife to an infirmary at Nevada, Mo., and was sojourning there during her treatment. Thomas Cain and his wife, Amanda Cain, were the owners of a tract of land, containing 80 acres, in Vernon county. On December 3, 1897, the Cains made a trade with William Woods, whereby they agreed in writing to make him a warranty deed to 40 acres of their land for $400, and Woods gave them his obligation to pay $400. On Sep