triors of the facts, and if in a civil or criminal case the commission of the same act is being investigated, and the jury are required to respond by their verdict as to whether or not the act has been committed, we are unable to assign any reason why they are not entitled to the same instructions upon the evidence, tending to show that the act was or was not committed, to guide them in reaching a conclusion, in a civil as in a criminal case. The case of Young v. Johnson, supra, was a civil case, and it will be observed that the New York court cited in support of its conclusions People v. O'Sullivan, 104 N. Y. 481, 10 N. E. 880, 58 Am. Rep. 5), which was a criminal case, doubtless, upon the theory that the principles were applicable in civil and criminal cases alike. Instruction "b," properly declared the law, and should have been given, and it was error for the court to refuse it.

It is insisted by appellant that certain remarks of counsel for plaintiff in argument of the case to the jury constituted error. This insistence is directed to the statements, as shown by affidavit on file, by counsel to the jury, that "the defendant has been indicted for this offense." Upon this question it is only necessary to say that the error complained of is nowhere properly preserved for review in the bill of exceptions. While it is shown by affidavit that counsel made this statement, and doubtless it was made, yet the complaint to its being made cannot be preserved by a mere affidavit. The argument of counsel is a part of the trial and occurs during the progress of the trial, and any errors in respect to such argument this court is only authorized to review when they are preserved by timely objections and exeeptions made at the time, all of which must be made to appear in the bill of exceptions. It not being disclosed by the bill of exceptions that the remarks of counsel complained of were objected to at the time they were made, such alleged error is not before this court for review. State v. Meals, 83 S. W. 442.

There are many other errors urged by counsel for appellant as reasons for the reversal of this judgment, but with the view entertained by this court, that the evidence in this cause is insufficient to support the verdict, we will direct our attention to the overshadowing error complained of; that is, the refusal of the court to direct the jury to find the issues for the defendant. To entitle plaintiff to recover in this action, it must be shown by some substantial evidence that the defendant, by force and violence and against ter will, ravished her. We have read in detail all the evidence introduced upon the trial of this cause, and, after a careful consideration of it, we are unable to escape the conclusion that the verdict should not be permitted to stand. The statements of plaintiff as to this occurrence must be viewed in the light of all the surrounding facts and cir88 S.W.-7

cumstances. If the physical facts and all the circumstances appearing in evidence, together with the surrounding conditions, absolutely negative and destroy the force of such statements, then, in contemplation of law, such statements do not amount to any substantial evidence of the facts to which they relate. We do not mean by this that the prosecutrix must be corroborated, for such is not the law of this state (State v. Marcks, 140 Mo. 656, 41 S. W. 973, 43 S. W. 1095); but we do hold that statements made by a witness that are not only in conflict with the experience of common life and of the ordinary instincts and promptings of human nature, but negatived as well by the conduct of the witness and the conditions and circumstances surrounding the occurrence to which they have application, are not sufficient to support the grave and serious charge of rape, and this is true whether the charge is made in either a civil or criminal proceeding. The plaintiff in this case was past 16 years of age, strong, healthy, and vigorous, was not under the dominion of the defendant, nor was her conduct restrained, so far as the testimony discloses, by threats, fear of violence, or duress on the part of the defendant. The proof of the charge of rape as alleged in the petition rests entirely upon the version given of the occurrence by the plaintiff. It is claimed by respondent that plaintiff was ravished by force and violence, in a room with the doors and windows open, within 90 feet of the home of defendant in the same yard; that in the house of defendant, situated as herein indicated, there were, at the time it is said that this rape was committed, the father and wife of the defendant, as well as plaintiff's foster mother; that the windows and doors of the house of defendant were open, and nothing to prevent the occupants of it from hearing even the slightest noise. No outcry was made either before it is claimed the pillow was placed over her mouth, or after its removal. But this is not all; a few minutes after plaintiff claims this terrible outrage was perpetrated upon her, the foster mother appears upon the scene, and not a word does plaintiff utter to her as to the heinous offense committed by defendant. The mother testified that she observed no evidence of excitement or agitation on the part of the plaintiff. No greater outrage can be perpetrated upon a young, innocent girl than the one charged in this petition, and yet the record discloses that about a year elapsed before any complaint was made by the plaintiff that this terrible crime was committed upon her. If she was ravished in the manner as stated, the instincts of girlhood innocence to make complaint to her father and mother, in the absence of any threats of violence or duress, would have instantly been asserted, and the outrage disclosed. On the other hand, if the sexual intercourse was by consent, the persistent

and continued concealment of such illegitimate intercourse can be readily reconciled with the conduct of plaintiff; and, if there was sexual intercourse between them, that is the only theory upon which her conduct can be reconciled. The conditions and circumstances surrounding this occurrence, as related by plaintiff, the absence, immediately after it is claimed the offense was committed, of the usual and ordinary indications of the perpetration of such an outrage, and the course of conduct and manner of the defendant in respect to such occurrence, are amply sufficient to destroy all probative force or effect of plaintiff's statement concerning the force and violence that was related by her.

The correctness of the conclusions reached in this case is emphasized by the expression of the views of this division of the court, when substantially the same facts were in judgment before it, in State v. Hamey (Mo. Sup.) 65 S. W. 946. The facts as to the outrage complained of in this case were fully presented to this court in that case, and while the charge in that case was not that of rape, yet all the facts were developed at the trial, and, if there was any substantial difference with the facts in the case at bar, it is that the facts in the criminal case were stronger than in the one now being considered. Gantt, J., in speaking of the facts in State v. Hamey, above cited, thus expressed his views. He said: "For my part I do not believe there was sufficient evidence in this case to establish the crime of rape; but there was evidence to sustain the charge that defendant, a person over the age of 16 years, had carnal knowledge of an unmarried female of previously chaste character between the ages of 14 and 18 years of age." It is clear, if the testimony was insufficient in that case to establish the crime of rape, nothing having been added to the facts as presented in the case at bar, it is insufficient in this case. Counsel for respondent, however, contends that the fact that the case in which Judge Gantt expressed his views as to the facts was a criminal case, and the testimony must show the guilt of the defendant beyond a reasonable doubt, whereas in this case it is only necessary to establish the facts by a preponderance of evidence. That is true, but that in no way conflicts with the principle that in either a civil or criminal case there must be sufficient evidence to establish the charge. rule in respect to submitting a cause to the jury, which has been uniformly adhered to by the courts, is: Where there is substantial testimony upon the charge in the information or indictment, or, in a civil case, upon the allegations in the petition, the cause is submitted; if there is an absence of substantial testimony, the court directs a verdict for the defendant. In either case the court must first determine whether or not there is sufficient testimony to authorize its

The

submission to the jury. The only distinction after the court determines that there is substantial testimony which warrants its submission to the jury, is as to the weight of the testimony, and its effect upon the minds and consciences of the triors of the fact. In a criminal case, the testimony should leave no reasonable and substantial doubt touching the guilt of the party charged; in a civil case, it is only required that the allegations constituting the cause of action should be established by a preponderance of the evidence. The question of doubt in a criminal case, where there is substantial testimony, is always directed to the triors of the fact, and they are instructed on that subject; but the court, in either civil or criminal cases, determines in advance whether there is sufficient testimony to authorize the submission of the cause to the jury. There can be but one conclusion drawn from the remarks above noted by Gantt, J., upon the facts in that case, and that is that, while the evidence may be sufficient to show sexual intercourse, which was unlawful by reason of the age of the prosecutrix, it is insufficient to show that such intercourse was accomplished by force and violence and against the will of the plaintiff. Sherwood, J., in discussing the facts of that case, after reviewing the authorities applicable to charges of the nature contained in the petition in this action, said: "Acting in the light of these authorities, and, indeed, of the experience of common life, and of the ordinary instincts and promptings of human nature, we hold that a verdict based on such evidence as above offered by the state should not be permitted to stand. That evidence is contrary to all rational belief and all prior observations of human action in like circumstances." While court in banc affirmed the judgment of the trial court as to the charge (Gantt, J., delivering the opinion), there is nothing in the opinion affirming the judgment that there was any change of views as to the insufficiency of the evidence to establish the charge alleged in the petition, which is essential to warrant a recovery in this action.

"

We repeat, what was suggested in the discussion of the facts of this case when being considered by this court in the criminal proceeding, that the plaintiff for 12 months never, by word, sign, or syllable, indicated to a single human being that she had been ravished; no complaint whatever as to the terrible outrage for which she now seeks to recover damages; no indication, immediately after she says the offense was committed, of excitement, mental distress, or anguish; an entire absence of any disordered or torn condition of her clothing, or bruises or scratches upon her person. After diligent search, we are unable to find a judgment for the plaintiff, either in a civil or criminal case, that has been permitted to stand upon testimony of the nature and character disclosed in this record. It may be that plain

tiff was outraged as charged in the petition; if so, we confess that it was unfortunate that her conduct was so in conflict with the ordinary instincts and promptings of human nature as to absolutely negative any such conclusion as that she was forcibly ravished. As to whether she was or not, it is unnecessary for us to express an opinion; it is sufficient to say that the testimony introduced did not warrant any such conclusion, and we are unwilling to sanction the verdict returned by the jury in this cause.

Entertaining the views as herein expressed. it results in the conclusion that the judgment in this cause should be reversed, and it is so ordered. All concur.

Rev. St. 1899, § 6759, requires county contracts to be in writing, and subscribed by the parties or their duly authorized agents. Section 6760 requires such contracts to be executed in duplicate, and one copy to be filed with the derk. Held that, conceding that a contract entered into by the county court must appear on its record, it is not necessary that the record entry thereof set forth all the terms of the contract, and an entry of a contract reciting the employment of an attorney in a certain case, described by its title, to defend the same to final determination in the courts of last resortthe compensation to be paid out of the permanent school fund-is sufficient to make the contract binding on the county, without reciting the details thereof as shown by the written contract drawn up in duplicate between the county and the attorney.

2 SAME-SCHOOL FUND-PROTECTION AGAINST ATTACK-EXPENSES.

Where an attorney is employed by a county to defend against an attack on the county public school fund provided for by Rev. St. 1899, 9824, the expenses of such defense, inelading the payment of the attorney's compensation, should be borne by the school fund, and not by the general county revenue.

3. SAME CONTRACTS-NECESSITY OF RECORD ENTRY.

A contract made by the county court for the employment of an attorney, not evidenced by any record entry, is void.

[Ed Note.-For cases in point, see vol. 13, Cent. Dig. Counties, § 183.]

4. SAME-CONTRACTS ON PAST CONSIDERATION

pealed or otherwise taken, becomes due on, and bears interest from, the final determination of the case in the court to which it is last taken. 6. APPEAL-INSUFFICIEnt Judgment.

The fact that judgment against appellant is for too small a sum is not reversible error. 7. JUDGMENTS-RESTRICTION.

Where a contract for the employment of an attorney to defend the county school fund provides for the payment of the attorney out of that fund, a judgment in the attorney's favor on the contract should provide for its satisfaction out of the school fund, and a general judgment against the county is erroneous.

Appeal from Circuit Court, Pike County; David H. Eby, Judge.

Action by Julia M. Morrow, executrix of the estate of William H. Morrow, deceased, against Pike County. From a judgment for plaintiff, defendant appeals. Modified and affirmed.

John W. Jump, Ball & Sparrow, E. W. Major, Geo. W. Emerson, and J. D. Hostetter, for appellant. N. W. Morrow, Pearson & Pearson, and Dempsey & McGinnis, for respondent.

LAMM, J. To the notable and marking embellishments gracing Pike county in history and tradition, in story as well as song, there was added a spice of uniqueness in a gift by the General Assembly of Missouri, by an act approved January 25, 1847 (Laws 1846-47, p. 198), in favor of Watson Seminary, there situate, in the form of fines then in the treasury of the county, and of all moneys thereafter accruing to said county by way of fines, penalties, or forfeituresthe principal to be kept intact as a permanent fund, and the accretions of interest to be used for the current purposes of said seminary, all under the supervision of the county court-the details of which the curious may find dug out of the dust of the past and spread of record by this court in Watson Seminary v. County Court of Pike County, 149 Mo. 57, 50 S. W. 880, 45 L. R. A. 675.

In 1859 (Laws 1858-59, p. 46) the Legislature repealed so much of the act of 1847 as diverted said fines, penalties, and forfeitures from the school fund of Pike county, and gave them as a bounty to Watson Seminary. This repealing act, we infer, was possibly for a spell ignored by the county court, as unconstitutional. In 1893, however, that court refusing longer to permit such diversion of the school fund, but keeping trace of the amount of fines, penalties, and forfeitures thereafter accruing in a fund designated as the "Rejected Fund," used the same to swell the corpus of the common school fund as provided in the Statutes at Large. Thereupon sharp litigation sprang up, Watson Seminary suing out a writ of mandamus against the county court of Pike county; seeking by such moving writ to coerce that court into setting aside all said fines, penalties, and forfeitures for the benefit of the seminary's permanent fund. When things were in this fix, on the 3d day of August, 1896, the court

entered into a contract with Wm. H. Morrow, an attorney of the Pike bar, to take care of the interest of the county public school funds involved in that suit, and to assist the prosecuting attorney in their defense. The order made in the premises is as follows:

"It is hereby ordered by the county court that W. H. Morrow, attorney heretofore in charge of the defense on the part of Pike county in the suit pending against it, and prosecuted by Watson Seminary as plaintiff in mandamus proceedings in the circuit court of Pike county, be, and is hereby, employed by this court, pursuant to an agreement this day entered into with him by the court, to defend said suit to a final determination thereof in the court or courts of last resort to which the same may be taken. Compensation agreed on and expenses and costs to be paid out of permanent school fund."

And as a part of the business arrangement then made the following contemporaneous written contract was executed:

"State of Missouri, County of Pike-ss.: County Court of said County, August Terin, 1896. In consideration of services to be rendered by W. H. Morrow, Attorney at Law, in the suit or action now pending in the Circuit Court of Pike county, Missouri, in Watson Seminary, Pl's vs. the said County of Pike and the Judges thereof, Def'ts, by mandamus to compel the payments therein claimed, the said County of Pike, by and through its County Court, in regular session convened, agrees and obligates itself to pay to said W. H. Morrow the sum of twenty-five hundred dollars, upon the express condition, however, that said Morrow shall successfully defend said suit in the said Circuit Court and in any other court or courts to which said cause shall be appealed or otherwise taken pursuant to law; and the said W. H. Morrow agrees and obligates himself to render such services as is necessary, according to the best of his ability, in defending said suit or action. It is further expressly understood that if said suit or action be, in the end judicially determined in favor of the plaintiff therein and against the defendant therein, then this obligation to be void; it is understood and agreed, however, that the said County of Pike is to advance and pay, when required, such sum or sums of money in the defense of said suit necessary and requisite to pay all costs and expenses of court fees and printing expenses of transcript or records and briefs prepared in said cause on the part of defendant.

"Made in duplicate and signed and sealed this 3rd day of August, 1896.

"J. W. McIlroy,

"Presiding Judge. "J. R. S. McCune,

"Associate Judge. "Eugene W. Stark,

"Associate Judge. "W. H. Morrow."

In pursuance of that employment, Morrow ably and fully performed his part of the contract, tried the case nisi, and won it there, followed it to this court on appeal, and won a crowning victory here on the 28th day of March, 1899. 149 Mo. 57, 50 S. W. 880, 45 L. R. A. 675. This court decided all issues in favor of the county court, and, by holding the repealing act constitutional, released the county from liability for fines, penalties, and forfeitures accruing after 1893, designated as the "Rejected Fund," and in effect overturned and struck to the ground the title of Watson Seminary to all that portion of the permanent fund thereof remaining in the hands of the court, and which had accrued prior to 1893 from such fines, penalties, and forfeitures after the repealing act aforesaid -the amount involved, by and large, being many thousands of dollars.

While this litigation was running its course, on the 9th day of February, 1898, Morrow and the judges of the county court undertook to make a new agreement. The material alteration from the original contract consisted in a provision that while, as in the original contract, Morrow was to be paid nothing if the litigation was adverse, he was to be paid $1,250 out of the rejected fund and $1,250 out of the permanent fund in case of success as to both funds, but only $1,250 in case of success as to one fund; and the original contract was, in set terms, abrogated. This new arrangement also referred to past as well as future services as the consideration on Morrow's part, but it was not spread of record, nor was any order made of record authorizing it to be made, or referring to it; and it is only evidenced by a written memorandum signed by the judges and Mr. Morrow.

He

Some four months-to be exact, on August 9, 1899-after the opinion of this court in the mandamus case was handed down, the county court issued its warrant in favor of Morrow for $1,250, to be paid "out of any money in the treasury appropriated for any ordinary county expenses or rejected Watson fund," and this warrant was cashed by him. then applied for $1,250 more to be paid him out of the permanent fund "as per contract," but nothing was done beyond filing the claim with the county clerk, and shortly thereafter he died. Refusing to settle with his widow as executrix, she sued the county on the modified contract. Presumably ascertaining that the county court had failed to make any record of the last so-called contract, and defendant by answer denying the contract counted on, she dismissed that suit, and brought the present one, for $2,500 and interest after March 28, 1899, counting on the original contract.

On a trial to the court sitting as a jury, the foregoing facts appeared; and it was shown, moreover, that, after the final disposition of the mandamus case, counsel for Watson Seminary shrewdly conceived the notion of making such a show of further lit

igation as would force some compromise in regard to the permanent fund accruing from fines prior to 1893. Accordingly they appeared before the county court of Pike county, with Morrow present, and sought a compromise; contending that the force of the former adjudication was spent upon the rejected fund alone. Per contra, Morrow contended that the effect of the opinion was to destroy the right of Watson Seminary to any fines, penalties, or forfeitures accruing after the repealing act, and hence all portion of said accumulation nominally set apart to the permanent fund of Watson Seminary prior to 1803 became, by virtue of the decision of this court, a part of the common school fund of Pike county. The county court took Morrow's view, and refused to compromise. Subsequently, and after Morrow's death a suit was brought to give color of claim to a compromise; and the court, as then constituted, bought its peace by making some settlement, the character of which does not appear in the record, but of a trivial sort, as contended ore tenus by counsel.

The trial below resulted on the 15th day of November, 1902, in a general judgment for the executrix in the sum of $1,553.61 against the county, and to reverse that judgment Pike county appeals, after the conventional preparatory steps.

Sundry contentions were made below, and exceptions saved, which are sifted out and now abandoned; the following alone remaining for our consideration: First, appellant asked and was refused a mandatory instruction, and insists here that it should have been given, because, it says, the original contract was invalid, in that the record entry pertaining thereto was not "broad enough," and did not contain the terms of the contract, and in that the said entry shows that the attorLey's fees were to be paid out of the permanent school fund; second, because, although the second contract was void as to the county, yet it was binding upon Mr. Morrow, had been acted upon by him, and by its terms it superseded the original contract now sued upon; third, because the verdict is excessive, in that the court erred in computing the interest. Of these, seriatim.

1. It will be seen that the original contract is assailed only because the record entry is rot "broad enough," and does not set forth all the terms of the contract, and because thereby Morrow's compensation was to come out of the permanent school fund. This contract is not attacked by the county or its learned counsel because of any inherent or statutory lack of power in the county court to make a contract employing an assistant attorney. The power of the court to contract being conceded, we are relieved from the necessity of examining into the right of a Missouri county court to make a contract for an attorney to assist its prosecuting attorney in civil business, and of construing and applying sections 4951, 5003, Rev. St. 1899, and

of considering those cases construing the legislative enactment (Laws 1873, p. 18) approved March 11, 1873, giving all county courts authority to hire lawyers, but which was repealed by not being included in the Revised Statutes of 1879 (Butler v. Sullivan County, 108 Mo. 639, 18 S. W. 1142), and upon which enactment the decisions in Thrasher V. Greene County, 87 Mo. 419, and Thrasher v. Greene County, 105 Mo. 244, 16 S. W. 955, were based, and which cases were cited as authority for the holding in Reynolds v.L Clark County, 162 Mo. 680, 63 S. W. 382, all of which cases are suits against counties on contracts of employment by attorneys for services.

Attending, then, to the assignments of error in this behalf presented for our consideration, and construing the statute relating to county contracts (section 6759, Rev. St. 1899), it will be seen that a contract made by the county court must be in writing, and must be made upon a consideration wholly to be performed or executed subsequent to the making of the contract. This statute does not require the contract, when made, to be spread of record, but its spirit seems to be observed if the action of the court be evidenced by a record that in some apt way refers to the subject-matter of the written contract executed in pursuance thereof. So that, if it be conceded that the action of the county court must appear by its record (Riley v. Pettis County, 96 Mo. 318, 9 S. W. 906; Johnson County v. Wood, 84 Mo. 489), yet the execution of the contract by Morrow could not be proved by an ex parte record, but must appear from his own act in signing the written contract. Taking the scope and purport of that statute into consideration, no reason is apparent to us why the whole contract should be spread of record in the absence of express provision requiring it. The record entry ought properly, as this one does, to identify the subject-matter of the contract and give the outlines of it, but it would certainly be a vain and useless thing to copy the whole contract upon the record. The statute (section 6760) provides that the contract should be executed in duplicate, and one copy filed with the clerk, and the other is intended, presumably, for the opposite party; and the object to be subserved by this provision seems to preclude the necessity of recording the contract itself, or all of its provisions. In this case the record entry shows a suit was pending against the county, the character and style of the suit, and by whom prosecuted, and in what court. It is not pretended that there were two or more suits pending, and the reference to the suit as a mandamus suit and to the court in which it was pending was a sufficient identification of the subject-matter. is said therein that Morrow contracted to defend the suit into the courts of last resort, and what more was necessary for the sensible and orderly transaction of the county business? To our mind, the objection that

It