State v. Concelia. lars; deceased had given him fifty cents to show him a bawdy house and made inquiry of him as to a rooming house. In a case like this the matter of motive is necessarily of paramount importance. When a defendant's agency or participation in a crime is otherwise sufficiently established, lack of motive is of no great moment. [State v. David, 131 Mo. 1. c. 397; State v. Crabtree, 170 Mo. 1. c. 651.] But when the facts exist l. in a case as they occur here, if there is no motive shown, no guilt can with any sufficient legal certainty, be attributed to defendant. With almost absolute certainty it may be said that the unknown man in the case was killed for the purpose of robbery. The facts also, when fully considered, lead to the legitimate and reasonable inference that defendant was with deceased almost up to the time at which other evidence in the case shows him to have been murdered. From the very nature of things, the quantum of circumstantial evidence which suffices to meet the requirements of the rule that the circumstances proved must be consistent with each other and with the hypothesis that the accused is guilty, and so inconsistent with any reasonable hypothesis of innocence as to exclude every rational hypothesis except that of guilt (State v. Morney, 196 Mo. 1. c. 49), differs in different cases, so as to preclude the formulation of any fixed, hard-and-fast rule. any As a court of errors, it is not, as a rule, our duty to pass upon the facts of a case. Where there exists upon the record, what has been rather loosely called "substantial evidence" of the existence of a state of facts legally required to be shown, it is our duty to relegate the determination of controverted questions to the triers of fact. "The rule is, that before this court. will relieve on the ground that the verdict is not supported by the evidence, there must be either a total failure of evidence, or it must be so weak that the necessary inference is, that the verdict is the result of pas State v. Concelia. sion, prejudice or partiality." [State v. Glahn, 97 Mo. 689; State v. Howell, 100 Mo. 1. c. 659.] There is a bare possibility of the defendant's innocence, but upon the whole record a "moral certainty" of his guilt. The possibility of his innocence rests upon unreasonable hypotheses. Deceased may, it is true, have foregathered with the nebulous and elusive Jack Murphy, and have been killed by the latter; but, then, why the robbery perpetrated upon him? Hold-up men might have accosted him, robbed him and killed him, but why then the silence of defendant, and his varying, false and contradictory statements? If he did not, as he says, know that the man in whose company he was, had been killed, why deny, as he at first vehemently did, that he knew or had ever seen such a man as deceased, or any man dressed and described as deceased was. Weighing the facts, as required here, in the most delicate scales of reasonable doubt, which must be a substantial doubt, such as an honest, fair and intelligent juror, dominated by a conscientious desire to see the truth, might with reason entertain from a consideration of all of the evidence, facts and circumstances in the case, we cannot say even upon the cold record, that the triers of fact erred. We are unable to even concede the lack of the requisite quantum of evidence, or to grant that there was a total failure of proof. As to passion, prejudice or partiality, there is no hint or suggestion upon the record, or any reason arising from the facts or deducible inferentially from the relations or standing of the persons involved. We rule this point against defendant, and since there is no other point of pith or moment in the case, we affirm the judgment. Brown, P. J., and Walker, J., concur. State v. Gardner. THE STATE v. LEO GARDNER, Appellant. Division Two, May 20, 1913. 1. NO BILL OF EXCEPTIONS. Where no bill of exceptions is filed, there is nothing before the court except the record proper, and if that is free from error the judgment will be affirmed. 2. INDICTMENT: Manslaughter in Fourth Degree: Careless Driving of Automobile. An indictment charging manslaughter in the fourth degree, death having resulted from the careless driving of an automobile, is held gcod upon the authority of State v. Watson, 216 Mo. 424. Appeal from St. Louis City Circuit Court.—Hon. Wilson A. Taylor, Judge. AFFIRMED. Grant Gillispie for appellant. John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State. Indictment: WILLIAMS, C.-Defendant was tried and found guilty in the circuit court of the city of St. Louis, under an indictment charging manslaughter in the fourth degree in that defendant caused the instant death of one Jesse B. Williams by feloniously, carelessly, recklessly, and with culpable negligence, driving an automobile against and upon him. The punishment assessed was a fine of five hundred dollars, and defendant appealed. Defendant failed to file any bill of exceptions, and we are therefore limited in our review to the record proper. The indictment charges the offense in the same language employed in the information set forth in the opinion in the case of State v. Watson, reported Cummings v. Parker. in the 216 Mo., at page 420, 1. c. 424. In the Watson case the sufficiency of the information is fully discussed, and held to be in proper and sufficient form. Other portions of the record proper are complete, showing all formal and proper requirements, and the same are free from error. The judgment is affirmed. Roy, C., concurs. PER CURIAM.-The foregoing opinion of WILLIAMS, C., is adopted as the opinion of the court. All the judges concur. CONSTANTINE S. CUMMINGS, Appellant, v. HERBERT L. PARKER et al. Division One, May 31, 1913. 1. FRAUD: Proof. 2. 3. However hard to prove, fraud must still be proved, and will not be permitted to rest on mere suspicion or conjecture. : Selling Corporate Property. A sale by a hunting club corporation of its only remaining real estate, at a price in excess of its value, as a result of a meeting of its 26 living stockholders, including plaintiff, at which 23 voted for the sale, to another corporation whose stockholders were the same men except plaintiff, at a time when it could no longer lease a large body of land it had theretofore for twenty years used, in connection with said club house, for fishing and hunting by its members, and could obtain no other like land, being in pursuance of an apparent call of necessity, is free from all circumstances and indicia of actual fraud. : Trustee: Rescission of Contract. Directors of a corporation stand in the relation of trustees to the corporate property; and when, on the complaint of a stockholder, the issue is whether a transaction between corporations having interlocked boards of directors should be avoided and profits therein accounted for, such dealings will be judicially eyed with jealousy and sternness to search out and correct lurking and covinous fraud; but that rule does not require that a sale of a corporation's real estate, at a price in excess of its value, where everything was open and above-board, and made in apparent neces sity, should be avoided. 4. 5. : Cummings v. Parker. ▬▬▬: All Properties: Unanimous Consent. The general doctrine of the law, guardedly put as subject to modification, that a corporation that is a going concern, solvent and not pressed with debts, laboring under no vital distress, cannot during its charter life, without the unanimous consent of its stockholders, dispose of all its corporate property from which it derives its income and which forms the basis of its business operations, does not apply: first, where the complaining stockholder does not object to any sale, but to a sale to a certain other corporation and insists on a sale to a company of his own choosing; second, where the corporation is not in fact a going concern, but, because of inability to renew leases necessary to its corporate purposes, faces a crippled condition; third. where the sale has been made, and it is impossible to restore the status quo, and it is not apparent that it can pay back the price received; and, fourth, where there is not bad faith, and its application would restrain the right of a majority of the stockholders to rule within the bounds of reasonable grounds. : :Selling to Self: Rescission. Absent any actual fraud, a transaction between two corporations, whereby one sells its real estate to another, will not, on the complaint of a minority of non-consenting stockholders, be rescinded solely on the ground of unity in directors, or unity in the voting power of stockholders, or because of interlocked directorates. Although the two corporations have the same directors, and the stockholders of the one are almost unanimously the stockholders of the other, yet they are separate entities, separate juristic persons, and the vendor is not a person selling to himself within the usual meaning of the rule. Appeal from St. Charles Circuit Court.-Hon. James D. Barnett, Judge. AFFIRMED. M. McKeag for appellant. (1) Under the pleading and testimony, plaintiff's interest was intentionally and fraudulently attempted to be disposed of by the directors of defendants, for their and their associates' benefit and profit, in the Dardenne Shooting Club; that in making this deed the result if it is permitted to stand, is to benefit these di |