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97 CHAMPAGNE V. HAMEY. criminal case the commission of the same

of the facts, and if in a civil or cumstances. If the physical facts and all act is being investigated, and the jury are

the circumstances appearing in evidence, torequired to respond by their verdict as to

gether with the surrounding conditions, abbether or not the act has been committed,

solutely negative and destroy the force of ve are unable to assign any reason why they

such statements, then, in contemplation of are not entitled to the same instructions up

law, such statements do not amount to any on the eridence, tending to show that the act

substantial evidence of the facts to which

they relate. We do not mean by this that 2s or was not committed, to guide them in the prosecutrix must be corroborated, for reaching a conclusion, in a civil as in a crin- such is not the law of this state (State v. İda) case. The case of Young v. Johnson, Marcks, 140 Mo. 656, 41 S. W. 973, 43 S. W. sopra, was a civil case, and it will be ob- 1095); but we do hold that statements made served that the New York court cited in sup

by a witness that are not only in conflict port of its conclusions People v. O'Sullivan,

with the experience of common life and of 144 N. I. 481, 10 N. E. 880, 58 Am. Rep.

the ordinary instincts and promptings of wl, which was a criminal case, doubtless,

human nature, but negatived as well by the ten the theory that the principles were ap

conduct of the witness and the conditions plicable in civil and criminal cases alike. In,

and circumstances surrounding the occurSirtction “b," properly declared the law, and

rence to which they have application, are skould bave been given, and it was error for

not sufficient to support the grave and sethe court to refuse it.

rious charge of rape, and this is true whether It is insisted by appellant that certain re

the charge is made in either a civil or crimmarks of counsel for plaintiff in argument of

inal proceeding. The plaintiff in this case the case to the jury constituted error.

This was past 16 years of age, strong, healthy, iss.stence is directed to the statements, as

and vigorous, was not under the dominion sbown by affidavit on Kle, by counsel to the

of the defendant, nor was her conduct rejury, that “the defendant has been indicted

strained, so far as the testimony discloses, for this offense." Upon this question it is by threats, fear of violence, or duress on only necessary to say that the error com- the part of the defendant. The proof of the piained of is nowhere properly preserved for

charge of rape as alleged in the petition reriew in the bill of

exceptions. While it rests entirely upon the version given of the is snown by affidavit that counsel made this

occurrence by the plaintiff. It is claimed by statement, and doubtless it was made, yet

respondent that plaintiff was ravished by the complaint to its being made cannot be

force and violence, in a room with the doors preserved by a mere

a ffidavit. The argu- and windows open, within 90 feet of the trent of counsel is a

Part of the trial and home of defendant in the same yard; that in OCC7rs during the progress of the trial, and als errors in respect to such argument this

the house of defendant, situated as herein

indicated, there were, at the time it is said cart is only authorized to review when they that this rape was committed, the father and are preserved by tiinely objections and ex- wife of the defendant, as well as plaintiff's be made to appear in the bill of exceptions. ceptions made at the time, all of which must foster mother; that the windows and doors

of the house of defendant were open, and Le no thbeing disclosed by the bill of excep- nothing to prevent the occupants of it from. tons that the remarks of counsel complained of were objected to at the time they were

hearing even the slightest noise. No out

cry was made either before it is claimed the made, such alleged error is not before this cort for review.

pillow was placed over her mouth, or after 442

v. Meals, 83 9. W. | its removal. But this is not all; a few minThere are many other errors urged by coun

utes after plaintiff claims this terrible outsel for appellant as reasons for the reversal of

rage was perpetrated upon her, the foster this judgment, but with the view entertained

mother appears upon the scene, and not a by this court, that the evidence in this cause

word does plaintiff utter to her as to the is insufficient to support the verdict, we will

heinous offense committed by defendant.

The mother testified that she observed no to the overshadowing evidence of excitement or agitation on the

that is, the refusal of part of the plaintiff. No greater outrage spes for the defendant. To entitle plaintiff

the jury to find the is- can be perpetrated upon a young, innocent to recover in this action, it must be shown

girl than the one charged in this petition,

and yet the record discloses that about a fendant, by force and violence and against

evidence tbat the de- year elapsed before any complaint was made ter will, ravished her. We have read in de

by the plaintiff that this terrible crime was tail all the evidence introduced upon the trial

committed upon her. If she was ravished of this cause, and, after a careful considera

in the manner as stated, the instincts of girl

hood innocence to make complaint to her casion that the verdict should not be permit. unable to escape the con- father and mother, in the absence of any

threats of violence or duress, would have es to this occurrence must be viewed in the light of all the surrounding facts and cirstatements of plaintiff instantly been asserted, and the outrage dis

closed. On the other hand, if the sexual intercourse was by consent, the persistent

State

direct our attention error complained of; the court to direct

by some substantial

tion of it, we are

ted to stand. The

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and continued concealment of such illegiti- submission to the jury. The only distincmate intercourse can be readily reconciled tion after the court determines that there is with the conduct of plaintiff; and, if there substantial testimony which warrants its was sexual intercourse between them, that submission to the jury, is as to the weight of is the only theory upon which her conduct the testimony, and its effect upon the minds can be reconciled. The conditions and cir- and consciences of the triors of the fact. In cumstances surrounding this occurrence, as a criminal case, the testimony should leave related by plaintiff, the absence, immediate no reasonable and substantial doubt touchly after it is claimed the offense was com- ing the guilt of the party charged; in a civil mitted, of the usual and ordinary indica- case, it is only required that the allegations tions of the perpetration of such an out- constituting the cause of action should be rage, and the course of conduct and manner established by a preponderance of the eviof the defendant in respect to such occur- dence. The question of doubt in a criminal rence, are amply sufficient to destroy all case, where there is substantial testimony, probative force or effect of plaintiff's state- is always directed to the triors of the fact, ment concerning the force and violence that and they are instructed on that subject; but was related by her.

the court, in either civil or criminal cases, The correctness of the conclusions reached determines in advance whether there is suffiin this case is emphasized by the expression cient testimony to authorize the submission of the views of this division of the court, of the cause to the jury. There can be but when substantially the same facts were in conclusion drawn from the remarks judgment before it, in State v. Hamey (Mo. above noted by Gantt, J., upon the facts in Sup.) 65 S. W. 946. The facts as to the that case, and that is that, while the evi. outrage complained of in this case were ful- dence may be sufficient to show sexual inly presented to this court in that case, and tercourse, which was unlawful by reason of while the charge in that case was not that the age of the prosecutrix, it is insufficient of rape, yet all the facts were developed at to show that such intercourse was accomthe trial, and, if there was any substantial plished by force and violence and against difference with the facts in the case at bar, the will of the plaintiff. Sherwood, J., in it is that the facts in the criminal case were discussing the facts of that case, after restronger than in the one now being con- viewing the authorities applicable to charges sidered. Gantt, J., in speaking of the facts of the nature contained in the petition in this in State v. Hamey, above cited, thus express- action, said: “Acting in the light of these ed his views. He said: "For my part I do authorities, and, indeed, of the experience of not believe there was sufficient evidence in common life, and of the ordinary instincts this case to establish the crime of rape; and promptings of human nature, we hold but there was evidence to sustain the charge that a verdict based on such evidence as that defendant, a person over the age of above offered by the state should not be per16 years, had carnal knowledge of an unmar- mitted to stand. That evidence is contrary ried female of previously chaste character to all rational belief and all prior observabetween the ages of 14 and 18 years of tions of human action in like circumstances." age.” It is clear, if the testimony was in- While court in banc affirmed the judgment sufficient in that case to establish the crime of the trial court as to the charge (Gantt, J., of rape, nothing having been added to the delivering the opinion), there is nothing in facts as presented in the case at bar, it is the opinion affirming the judgment that there insufficient in this case. Counsel for re- was any change of views as to the insuffispondent, however, contends that the fact ciency of the evidence to establish the charge that the case in which Judge Gantt express- alleged in the petition, which is essential ed his views as to the facts was a criminal to warrant a recovery in this action. case, and the testimony must show the guilt We repeat, what was suggested in the disof the defendant beyond a reasonable doubt, cussion of the facts of this case when being whereas in this case it is only necessary considered by this court in the criminal proto establish the facts by a preponderance of ceeding, that the plaintiff for 12 months evidence. That is true, but that in no way never, by word, sign, or syllable, indicated conflicts with the principle that in either a to a single human being that she had been civil or criminal case there must be suffi- ravished; no complaint whatever as to the cient evidence to establish the charge. The terrible outrage for which she now seeks rule in respect to submitting a cause to the to recover damages; no indication, imme jury, which has been uniformly adhered to diately after she says the offense was comby the courts, is: Where there is substan- mitted, of excitement, mental distress, or antial testimony upon the charge in the infor- guish; an entire absence of any disordered mation or indictment, or, in a civil case, or torn condition of her clothing, or bruises upon the allegations in the petition, the cause or scratches upon her person. After diligent is submitted; if there is an absence of sub- search, we are unable to find a judgment for stantial testimony, the court directs a ver- the plaintiff, either in a civil or criminal dict for the defendant. In either case the case, that has been permitted to stand upon court must first determine whether or not testimony of the nature and character disthere is sufficient testimony to authorize its closed in this record. It may be that plain.

ti as outraged as

MORROW v. PIKE COUNTY,

99

to

if so, we confess that it was unfortunate
charged in the petition; , pealed or otherwise taken, becomes due on,

and bears interest from, the final determination stat her conduct was so in conflict with the

of the case in the court to which it is last taken. ordinary instincts and promptings of human

6. APPEAL-INSUFFICIENT JUDGMENT. de ture as to absolutely negative any such

The fact that judgment against appellant conclusion as that she was forcibly ravish

is for too small a sum is not reversible error.

7. JUDGMENTS-RESTRICTION. ed. As to whether she was or not, it is

Where a contract for the employment of an Donecessary for us to express an opinion; it

attorney to defend the county school fund prois sufficient to say that the testimony intro

vides for the payment of the attorney out of duced did not warrant any such conclusion,

that fund, a judgment in the attorney's favor

on the contract should provide for its satisfacand we are unwilling to sanction the verdict

tion out of the school fund, and a general judg. returned by the jury in this cause.

ment against the county is erroneous. Entertaining the views as herein express

Appeal from Circuit Court, Pike County; ed. it results in the conclusion that the

David H. Eby, Judge. judgment in this cause should be reversed,

Action by Julia M. Morrow, executrix of and it is so ordered. All concur.

the estate of William H. Morrow, deceased,
against Pike County. From a judgment for
plaintiff, defendant appeals. Modified and af-

firmed.
MORROW v. PIKE COUNTY.
(Sopreme Court of Missouri, Division No. 1.

John W. Jump, Ball & Sparrow, E. W.
June 15, 1905.)

Major, Geo. W. Emerson, and J. D. Hostet1. COUNTIES–CONTRACTS-RECORD ENTRIES

ter, for appellant. N. W. Morrow, Pearson & SUFFICIENCY.

Pearson, and Dempsey & McGinnis, for re-
Rev. St. 1899, 96759, requires county cone

spondent.
tracts to be in writing,
parties or their duly authorized agents. Section
6700 requires such contracts to be executed in

LAMM, J. To the notable and marking cuplicate, and one copy to be filed with the

embellishments gracing Pike county in hisderk. Held that, conceding that a contract en

tory and tradition, in story as well as song, tered into by the county court must appear on

there was added a spice of uniqueness in a its record, it is not necessary that the record entry thereof set forth

gift by the General Assembly of Missouri, all the terms of the contract, and an entry

of a contract reciting by an act approved January 25, 1847 (Laws tbe employment of an attorney in a certain

case,

1846-47, p. 198), in favor of Watson Semdescribed by its title,

defend the same to onal determination in the courts of last resort

inary, there situate, in the form of fines then the compensation to be

in the treasury of the county, and of all sanent school fund is sufficient to make the

paid out of the per

moneys thereafter accruing to said county the details thereof as contract binding on the county, without reciting by way of fines, penalties, or forfeiturescontract drawn up in shown by the written

the principal to be kept intact as a permacounty and the attorney.

duplicate between the 2 SAME-SCHOOL FUND

nent fund, and the accretions of interest to

be used for the current purposes of said semATTACK-EXPENSES.

-PROTECTION AGAINST
Where an attorney is employed by a county

inary, all under the supervision of the county to defend against

court-the details of which the curious may pablic school fund

attack on the county Provided for by Rev. $t.

find dug out of the dust of the past and 1899. $ 9824, the expenses of such defense, incading the payment of the attorney's compena

spread of record by this court in Watson sation, should be borne by the school fund, and

Seminary v. County Court of Pike County,

149 Mo. 57, 50 S. W. 880, 45 L, R. A. 675. 3. SAYE-CONTBACTS-NECESSITY OF RECORD

In 1859 (Laws 1858-59, p. 46) the LegislaESTBY.

ture repealed so much of the act of 1847 as A contract made by the county court for diverted said fines, penalties, and forfeitures attorney, not evidenced

from the school fund of Pike county, and cases in point, see vol. 13,

gave them as a bounty to Watson Seminary.

This repealing act, we infer, was possibly 4. SAME CONTRACTS ON PAST CONSIDERATION

for a spell ignored by the county court, as

unconstitutional. In 1893, however, that ridin: for payment of fees to an attorney "in

A contract nade by the county court pro- court refusing longer to permit such diverconsideration of services rendered and to be ren

sion of the school fund, but keeping trace of dated" is totally Foid, both as to the county and the attorney, under Rev. St. 1899, 8 6759, probibiting counties from making any contract ex

the amount of fines, penalties, and forfei

tures thereafter accruing in a fund designated ed subsequent to the making of the contract. it upon a consideration wholly to be perform

as the “Rejected Fund,” used the same to 5. INTEREST - COMMENCEMENT OF PERIOD

swell the corpus of the common school fund CONTINGENT ATTORNEY'S FEE.

as provided in the Statutes at Large. Therewten money is to become due under a written C'nder Rev. St. 1899, Š 3705, providing that

upon sharp litigation sprang up, Watson Semarctract, and no rate of interest is provided, in

inary suing out a writ of mandamus against test runs at 6 per cent. from the time the monsy is due, a fee owed to an attorney under a

the county court of Pike county; seeking by

such moving writ to coerce that court into sritten contract providing for the payment of the fee on the express condition of a success

setting aside all said fines, penalties, and fed defense of the suit in the circuit court, and

forfeitures for the benefit of the seminary's y other court to which the case should be ap

permanent fund. When things were in this fix, on the 3d day of August, 1896, the court

an

Dot by the general

county revenue.

the employment of

an by any record entry, is void.

(Ed. Note. For Cent. Dig. Counties, 8 183.)

-VALIDITY.

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to which the same may be taken. Com12

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entered into a contract with Wm. H. Mor- In pursuance of that employment, Morrow row, an attorney of the Pike bar, to take ably and fully performed his part of the con. care of the interest of the county public tract, tried the case nisi, and won it there, school funds involved in that suit, and to followed it to this court on appeal, and won a assist the prosecuting attorney in their de- crowning victory here on the 28th day of fense. The order made in the premises is March, 1899. 149 Mo. 57, 50 S. W. 880, 45 L. as follows:

R. A. 675. This court decided all issues in “It is hereby ordered by the county court favor of the county court, and, by holding that W. H. Morrow, attorney heretofore in the repealing act constitutional, released the charge of the defense on the part of Pike county from liability for fines, penalties, and county in the suit pending against it, and forfeitures accruing after 1893, designatprosecuted by Watson Seminary as plaintiff ed as the "Rejected Fund," and in effect in mandamus proceedings in the circuit court overturned and struck to the ground the title of Pike county, be, and is hereby, employed of Watson Seminary to all that portion of the by this court, pursuant to an agreement this permanent fund thereof remaining in the day entered into with him by the court, to hands of the court, and which had accrued defend said suit to a final determination prior to 1893 from such fines, penalties, and thereof in the court or courts of last resort forfeitures after the repealing act aforesaid

-the amount involved, by and large, being pensation agreed on and expenses and costs many thousands of dollars. to be paid out of permanent school fund." While this litigation was running its course,

And as a part of the business arrangement on the 9th day of February, 1898, Morrow then made the following contemporaneous and the judges of the county court underwritten contract was executed:

took to make a new agreement. The material "State of Missouri, County of Pike-ss.: alteration from the original contract consistCounty Court of said County, August Terin, ed in a provision that while, as in the orig. 1896. In consideration of services to be ren- inal contract, Morrow was to be paid nothing dered by W. H, Morrow, Attorney at Law, in if the litigation was adverse, he was to be the suit or action now pending in the Circuit paid $1,250 out of the rejected fund and $1,250 Court of Pike county, Missouri, in Watson out of the permanent fund in case of success Seminary, Pl's vs. the said County of Pike as to both funds, but only $1,250 in case of and the Judges thereof, Def’ts, by mandamus success as to one fund; and the original conto compel the payments therein claimed, the tract was, in set terms, abrogated. This new said County of Pike, by and through its arrangement also referred to past as well as County Court, in regular session convened, future services as the consideration on Moragrees and obligates itself to pay to said W. row's part, but it was not spread of record, H. Morrow the sum of twenty-five hundred nor was any order made of record authorizdollars, upon the express condition, however, ing it to be made, or referring to it; and it is that said Morrow shall successfully defend only evidenced by a written memorandum said suit in the said Circuit Court and in any signed by the judges and Mr. Morrow. other court or courts to which said cause Some four months—to be exact, on August shall be appealed or otherwise taken pur- 9, 1899—after the opinion of this court in the suant to law; and the said W. H. Morrow mandamus case was banded down, the county agrees and obligates himself to render such court issued its warrant in favor of Morrow services as is necessary, according to the for $1,250, to be paid "out of any money in best of his ability, in defending said suit or the treasury appropriated for any ordinary action. It is further expressly understood county expenses or rejected Watson fund," that if said suit or action be, in the end judi- and this warrant was cashed by him. He cially determined in favor of the plaintiff then applied for $1,250 more to be paid him therein and against the defendant therein, out of the permanent fund “as per contract," then this obligation to be void; it is under- but nothing was done beyond filing the claim stood and agreed, however, that the said with the county clerk, and shortly thereafter County of Pike is to advance and pay, when he died. Refusing to settle with his widow required, such sum or sums of money in the as executrix, she sued the county on the defense of said suit necessary and requisite modified contract. Presumably ascertaining to pay all costs and expenses of court fees that the county court had failed to make and printing expenses of transcript or rec- any record of the last so-called contract, and ords and briefs prepared in said cause on the defendant by answer denying the contract part of defendant.

counted on, she dismissed that suit, and “Made in duplicate and signed and sealed brought the present one, for $2,500 and inthis 3rd day of August, 1896.

terest after March 28, 1899, counting on the "J. W. McIlroy,

original contract. "Presiding Judge. On a trial to the court sitting as a jury, "J. R. S. McCune,

the foregoing facts appeared; and it was “Associate Judge. shown, moreover, that, after the final disEugene W. Stark, position of the mandamus case, counsel for

"Associate Judge. Watson Seminary shrewdly conceived the “W. H. Morrow." notion of making such a show of further lit

101 MORROW v. PIKE COUNTY, fatod as rould force some compromise in recurd to the permanent fund accruing from

of considering those cases construing the leg. foes prior to 1893. Accordingly they ap

islative enactment (Laws 1873, p. 18) approvpeared before the county court of Pike coun

ed March 11, 1873, giving all county courts 5. with Morrow present, and sought a com

authority to hire lawyers, but which was reporise; contending that the force of the

pealed by not being included in the Revised

Statutes of 1879 (Butler v. Sullivan County, former adjudication was spent upon the rejected fund alone. Per contra, Morrow con

108 Mo. 639, 18 S. W. 1142), and upon which

V.

enactment the decisions in Thrasher destroy the right of Watson Seminary to any tended that the effect of the opinion was to

Greene County, 87 Mo. 419, and Thrasher v. fpes, penalties, or forfeitures accruing after

Greene County, 105 Mo. 244, 16 S. W. 955,

were based, and which cases were cited as the repealing act, and hence all portion of authority for the holding in Reynolds v.] sid accumulation nominally set apart to the Clark County, 162 Mo. 680, 63 S. W. 382, all permanent fund of Watson Seminary prior

of which cases are suits against counties on 13.1833 becaune, by virtue of the decision of contracts of employment by attorneys for this court, a part of the common school fund services. of Pike county. The county court took Mor- Attending, then, to the assignments of erNF's riew, and refused to compromise.

ror in this behalf presented for our considerSubsequently, and after Morrow's death a

ation, and construing the statute relating to suit was brought to give color of claim to

county contracts (section 6759, Rev. St. 1899), a compromise; and the court, as then con

it will be seen that a contract made by the stituted, bought its pea ce by making some

county court must be in writing, and must be settlement, the chara cter of which does not

made upon a consideration wholly to be perappear in the record, but of a trivial sort, formed or executed subsequent to the making 25 contended ore tenus by counsel.

of the contract. This statute does not reThe trial below resulted on the 15th day of

quire the contract, when made, to be spread November, 1902, in a

Beneral judgment for of record, but its spirit seems to be observed the executrix in the sum of $1,553.61 against

if the action of the court be evidenced by a the county, and to reverse that judgment

record that in some apt way refers to the subPike county appeals, after the conventional ject-matter of the written contract executed preparatory steps.

in pursuance thereof. So that, if it be conSundry contentions were made below, and

ceded that the action of the county court exceptions saved, which

are sifted out and must appear by its record (Riley V. Pettis Cow abandoned; the following alone remain

County, 96 Mo. 318, 9 S. W. 906; Johnson ing for our consideration: First, appellant County v. Wood, 84 Mo. 489), yet the execuassed and was refused a mandatory instruc

tion of the contract by Morrow could not be tion, and insists here that it should have been

proved by an ex parte record, but must apgiten, because, it says, the original contract pear from his own act in signing the written

is invalid, in that the record entry per- contract. Taking the scope and purport of taining thereto was not "broad enough,” and

that statute into consideration, no reason is - pot contain the terms of the contract, and apparent to us why the whole contract should is that the said entry shows that the attor- be spread of record in the absence of express Ley's fees were to be paid out of the perma- provision requiring it. The record entry Dent school fund; second, because, although ought properly, as this one does, to identify the second contract was void as to the coun: ty, yet it was

the subject-matter of the contract and give been acted upon by him, and by its terms it binding upon Mr. Morrow, had the outlines of it, but it would certainly be a

vain and useless thing to copy the whole consuperseded the original contract now sued tract upon the record. The statute (section ton; third, beca use the verdict is excessive, | 6760) provides that the contract should be in that the court erred in computing the in- executed in duplicate, and one copy filed with 1. It will be seen that the original contract

the clerk, and the other is intended, presumis assailed only because the record entry is

ably, for the opposite party; and the object

to be subserved by this provision seems to Dot "broad enough," and does not set forth preclude the necessity of recording the conout of the permanent school fund. This conthereby Morrow's compensation was to come the contract, and because tract itself, or all of its provisions. In this

case the record entry shows a suit was pendSearned counsel because of any inherent or tract is not attacked by the county or its

ing against the county, the character and style of the suit, and by whom prosecuted, and

in what court. It is not pretended that there Power in the county court were two or more suits pending, and the ref

employing an assistant erence to the suit as a mandamus suit and to

of the court to contract the court in which it was pending was a sufDecessity of examining into the right of a

are relieved from the ficient identification of the subject-matter. It Vissouri county Court to make a contract for un attorney to assist its prosecuting attorney

is said therein that Morrow contracted to de

fend the suit into the courts of last resort, tu civil business, and of construing and ap

and what more was necessary for the sensiplying sections 4951, 5003, Rev. St. 1899, and

ble and orderly transaction of the county business? To our mind, the objection that

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statutory lack of to make a contract attorney. The

power being conceded,

we

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