by mail, addressed to Festus J. Wade, president of the Mercantile Trust Company, or to the Mercantile Trust Company, I don't know which; but think it was Festus J. Wade, president of the Mercantile Trust Co. It was stamped with a two-cent stamp, and deposited in the government mail box." The letter was dated April 30, 1902, written on L. E. Newman's letter head, marked "Exhibit No. 5," and is as follows:

"St. Louis, April 30, 1902. "Festus J. Wade, Esq., President Mercantile Trust Co., City-Dear Sir: Allow me to acknowledge herewith receipt of your treasurer's check for the sum of fifty thousand dollars ($50,000) on account of sale of one hundred shares Wiggins Ferry Company's stock, according to agreement of April 24, 1902, and I accept it only on condition that you have kept and will keep said agreement in all respects, and I desire to formally notify you that I waive no rights which I may have in the matter.

"Yours truly,

"L. E. Newman, Trustee,

"Est. Soc. Newman." Witness resumes: "Nothing further was done between the date of that letter and May 5, 1902, when accompanied by my attorney, Gen. Noble, I went to the Mercantile Trust Co.

Festus J. Wade, James L. Blair, John W. Noble, and myself were present. Gen. Noble said that he came there for the purpose of asking back, for his client, Dr. Newman, the Wiggins Ferry stock, and he said he wanted to make a tender of the money to Mr. Wade, and demanded his stock. Wade looked at the cashier's check which Gen. Noble handed him, and said he would not be as mean as some people, but that he would consider that a formal and proper tender; but he said, 'I will not return the stock.' It was a cashier's check of the American Exchange Bank for $50,000. Gen. Noble said to Mr. Wade, as the 5th of May ran until midnight, and it was then noon, he wanted to know whether he would consider it was necessary to come back the next day, when the option had expired, and Mr. Wade said, 'Gen. Noble, you can come to-morrow, and you can come the next day, and I shall always give you the same answer.' Gen. Noble said, 'Will it be necessary for me to return,' and he said: 'No, Gen. Noble, it will not be necessary for you to return. My answer will be the same.' Gen. Noble asked if it was acknowledged by Mr. Wade that the Rock Island was the principal in the purchase of the Wiggins Ferry Co., and Mr. Wade and Mr. Blair, if I remember rightly, stated it was. Mr. Blair said he was representing Mr. Wade. Gen. Noble asked Mr. Blair as to whom the Mercantile Trust Co., Mr. Wade, and himself were representing, and he said they were representing the Rock Island Ry. Co. Gen. Noble stated to Mr. Wade, 'Mr. Wade, do you deny that you are or have paid

more than $500 a share for the stock?' and Mr. Wade said: 'No, I do not deny that we have paid more. It will have to go into court anyhow.' He did not state how much more than $500 he had paid. Nothing was said as to whether Mr. Wade had paid any more than $500 a share to those who had signed the proposal. It was just a general statement that he had paid it."

On cross-examination witness said: "Wade refused to take the cashier's check tendered him, and I still have the $50,000 in my possession." Defendant's counsel admitted that the stock was purchased for the Rock Island Ry. Co. Dr. L. E. Newman was recalled, and questioned by the court, and stated that after he had his interview with Mr. Wade, he deposited the check. He did not collect the money. He deposited it, and waited until the time for the option to expire. "It went through the clearing house, and was collected in the regular course, and went to my credit as trustee."

The plaintiff was then permitted to introduce the following written agreement in evidence over the objection of the defendants:

"An agreement made and entered into this 22nd day of April, A. D. 1902, by and between the Chicago, Rock Island and Pacific Ry. Co. (hereinafter called the Rock Island Company) and the Mercantile Trust Company of the City of St. Louis, Missouri, (hereinafter called the Trust Company), Witnesseth:

"The Trust Company for a valuable consideration, hereby undertakes as agent to buy for the Rock Island Company a majority or all of the shares of the capital stock of the Wiggins Ferry Company, an Illinois corporation, on the terms and subject to the condi tions following:

"Said shares shall be purchased at the price of five hundred dollars ($500) per share, it being understood that the entire capital stock of said Wiggins Ferry Company consists of ten thousand (10,000) shares of the par value of one hundred dollars ($100) each. Payment for said shares shall be made in cash on the surrender of the certificates for so many of said shares (not less than a majority) as shall be deposited with the Trust Company on or before May 5, 1902, properly endorsed in blank for assignment and transfer on the books of the company. The Rock Island Company will provide funds for such payment on said May 5th, 1902, on demand of the Trust Company. It being understood, however, that no such payment shall be made by the Rock Island Company, nor shall said company be liable to purchase or take any of said shares unless certificates for at least a majority of the entire capital stock of said Wiggins Ferry Company shall then be on deposit with said Trust Company ready for delivery as aforesaid. The Rock Island Company agrees to pay to the Trust Company at the time of payment for said shares so purchased, and the delivery of the certificates

therefor, a commission of two and one-half per cent (22%) on the total purchase then paid therefor.

"The Chicago, Rock Island & Pacific Railroad Company,

"By W. B. Leeds, President.

"Mercantile Trust Company,

"By Festus J. Wade, President." The plaintiff then introduced Gen. Noble, who testified as a witness in his behalf, and Lose evidence corroborated that of the plaintid as to the tender and demand for a return of the stock on the 5th of May, 1902. After which, plaintiff offered in evidence the depositions of Daniel G. Reed, Wm. H. Moore, and Robert Mather, which, after a colloquy between the court and counsel, were rejected.

Besides these depositions, some other depositions of like character and other evidence was offered and rejected, which, in the view we take of this case, need not be particularly noticed; after which the plaintiff was permitted to introduce in evidence the charters of the Wiggins Ferry Company and the defendant railway company.

At the close of the plaintiff's evidence the court instructed the jury that under the pleadings and evidence in the case the plaintiff is not entitled to recover, and their verdict should be for the defendants on both counts of the petition. Thereupon the plaintiff took a nonsuit with leave, and thereafter filed his motion in due time to set the same aside, which having been overruled, he appealed.

1 The first contention of counsel for plaintiff is that: "Under the pleadings all the evidence offered by the plaintiff and rejected by the court below was admissible, and that the court erred in its rulings thereon. The petition was broad enough to let in all the facts tending to prove fraud at any step of the transaction and enable the jury to pass upon the whole case." It is well-settled law in this state that "a mere charge of fraud, without specification of the act or acts which constitute the alleged fraud, amounts to nothing in pleading." Nagel v. Lindell Ry. Co., 167 Mo. 89, 66 S. W. 1090, and cases cited. In the first count of the petition the only acts specified as fraudulent are the presentation to the plaintiff of the contract of April 24, 1902, and the sending to him by mail of the letter inclosing the check for $20,000 in payment for his stock, upon the representations contained in which it is alleged that he relied. These instruments speak for themselves, and of them no fraud is predicable. But it seems to be contended that under the second count in the petition the rejected evidence was admissible, the broad claim being that under that count "any facts tending to prove fraud at any step in the transaction" are admissible. It s sufficient to say, in answer to this contenDon, that after a careful perusal and conderation of all the rejected evidence we fail to find therein any evidence tending to

prove the perpetration, or even the contemplation, of any fraud on the plaintiff, or, for that matter, upon any person. All this evidence tended to prove that could in any way affect the plaintiff was that the defendant railway company, being desirous of obtaining a majority of the stock of the ferry company, undertook to accomplish that purpose by the means set out in the written instruments contained in the foregoing statement, and that, after the offer of $500 per share by the trust company became noised abroad, the price of the stock suddenly rose, and that the trust company before the 5th of May did in fact purchase some of the stock at such advanced price. The fact that such advanced price was so paid by the trust company was proven, and, as a conceded fact, will be treated for all it is worth in considering the real issues in the case; but that fact was and could be no fraud upon the plaintiff. There is in fact no question of fraud in the case. The only real questions in the case arise upon the written instruments set out in the statement, and the acts of the parties thereunder. The court committed no error in the rejection of offered evidence, and we will now proceed to the consideration of the real questions in the case.

2. The plaintiff's action is essentially one of trover. Such an action may be maintained for shares of stock in a corporation. "Stock certificates" and "shares of stock" may be treated as synonymous, as they were evidently so regarded by the parties to this transaction. In order to maintain his action, the plaintiff must have been the owner of the shares of stock in controversy, and entitled to their possession at the time of the alleged conversion. It is conceded that on the 5th of May, 1902, he tendered to the trust company the sum of $50,000, and demanded the stock, and that his demand was refused. Demand and refusal are evidence of conversion. Hence if on that day he was the owner of the stock, and entitled to the possession thereof, his case is made out; otherwise not. Prior to April 24, 1902, the plaintiff was the owner and in possession of the stock. On that day he entered into the agreement of that date with the trust company, in pursuance of which, on the 26th day of April, 1902, the stock was delivered to the trust company, and the plaintiff accepted the receipt therefor of that date. By this means the title to the stock and the possession thereof became separated. The title remained in the plaintiff and the possession in the trust company, each holding subject to the contract. Now, the crucial question is, "What was that contract?" It was in writing, and is evidenced by the proposition of the trust company, the acceptance of that proposition by the plaintiff, and the receipt for the stock, set out in the statement. The proposition of the trust company of April 24, 1902, was, in substance,

City employé. On Saturday morning, September 12, 1903, about 7 o'clock, or a little after, Rector drove up to the depot, and there met Robert Morcom, one of the delivery clerks of the Big Four. On that morning there was what was known as a "rush order" in the Big Four Depot for the delivery of a box of brass faucets for the Blanke Company, a concern for which the Mound City Transfer Company also did the hauling, and when Rector appeared Morcom proceeded to make up a load of freight for him to be hauled by the Mound City Transfer Company. Morcom produced the delivery tickets for the Blanke order and for the Giesecke order, and handed them to Cassen, a "picker," and told him to give the goods called for by the tickets. As to the custom of delivery Morcom testified that when a man came in, whether an employé of the Mound City Transfer Company or any other, and asked for a load, he would turn the sheets over to his men, and instruct them how to load the wagon. On this morning, when Rector called for one particular shipment of shoes, he had a rush order from Blanke for one box of brass faucets, and told him he would have to take those goods; then he would deliver him the shoes.

W. O. Life, a witness for the state, testified that on September 12, 1903, he worked for the Big Four Company, and was a partner with Morcom, both delivery clerks at the same window, and that Rector came to the window and said a load of shoes; and that when he told him he could not get the load of shoes without taking the box of brass, he said he would not take the box of brass; had not time enough to go after that. He again told him he would have to take the box of brass or he would not get the shoes, to which Rector replied: "I have got to hurry. I have got to reach a car of the Missouri Pacific." Life then told him that it didn't make any difference what he had to do; he would have to take the box of faucets or he would not get the shoes. Life further testified that the Mound City Company did the hauling for the Giesecke Company, and that he knew Rector as an employé of said transfer company.

The testimony of other employés of the Big Four Company shows that they knew Rector was a driver for the Mound City Company, and that the box of brass for Blanke and the shoes for Giesecke were delivered to Rector in the regular course of business; that the steps taken by them were such as are taken in the usual course of business when dealing with the delivery of freight; that it was the custom of the transfer company to give the number of the wagon hauling the goods; that Rector gave the number of his wagon as 105. That number was given by Rector, who accounted for his wagon not being the regular wagon of the Mound City Company by stating that his regular wagon had broken down.

It appears from the evidence that the Giesecke Company have all the cases in which shoes are manufactured for them marked with what is known as the "Key Brand."

Rector testified that prior to about the 12th day of August, 1903, he was employed by the Mound City Transfer Company of St. Louis; that from about that date to September 12, 1903, he was unemployed; that he had known Sam Mintz for perhaps a month before September 12th, and that on September 11, 1903, he met Mintz in a saloon in St. Louis by prearrangement, and that Mintz hired him to drive a team for him the next day, also promising future employment; that early on the morning of September 12, 1903, and about 5 a. m., he went to Mintz's house in St. Louis, and Mintz, by agreement, had a team brought around hitched to a stake wagon, and told Rector to go to the Big Four Depot and get a load of shoes, saying to him, "Just call for a load of shoes, and you will get them." Mintz accompanied Rector a part of the way on foot, toward the bridge, and then turned the team over to him, and Rector drove over the bridge; Mintz having told him to get the shoes, and that a young fellow who had brought the team would tell Rector where to deliver the shoes. Mintz again met Rector at the end of the bridge, bought him several drinks, again told him what to call for at the Big Four Depot, and told him about the young fellow, and Rector proceeded to the depot with his team and wagon. The details of what happened at the depot, as shown by the evidence of the Big Four employés, is corroborated by Rector, who testified as follows as to what happened after the team was turned over to him by Mintz and he started from St. Louis for the Big Four Depot in East St. Louis: "Q. What occurred then? A. He told me he would meet me the other side of the river. I didn't see Sam Mintz there, so I went on across. There was an old fellow gets on the wagon with me. I don't know his name. He asked me to ride across. I told him 'All right.' He rode across the bridge to the stairs on the far side, the old fellow did; and he gets off and walks down the stairs. He works at the Big Four, I think. After I passed the stairs, Sam Mintz got over. He overhauled the wagon. Rode about half way down the entrance to the bridge. Q. Was that the first time you saw him? A. Since I left the saloon, yes, sir. So Sam gets on there, and he says, 'You drive down to the Big Four, back in to door No. 8. and ask for a load of shoes,' and he says, 'You will get them.' I told him 'All right.' As he got off the wagon, he said, 'Stop down at the corner, and sweep the coal dust off.' There was some coal on the wagon. I drove down there, went to the saloon, got a broom, and by that time Sam was there too. Sam went in the saloon before we swept the wagon. Had a couple of drinks. I went out and swept the wagon

off, came back, and had a couple more. I was feeling pretty good then. So I drove down to door No. 8, backed in, met the foreman or delivering clerk. I said, 'I am after a load of shoes.' He said, 'Where is your wagon? I said, 'No. 8 door.' He said, They are just opposite here.' I said, 'All right." He said, "There is a box of faucets to go over with that load.' I said, 'I ain't sent for no faucets.' He said, 'You have got to take them; that settles it.' So we commenced loading shoes, and he brought the faucets out, and says, "Take this box and load it first.' I said, 'I will not do it.' He said, You have got to take that now; that settles it' So he put these men to loading my wagon. Three truckers, three pickers, piled the shoes out faster than I could load up. Finally I got loaded up. He wanted me to sign two tickets-three tickets, rather-and Mintz told me on the bridge to sign the name 'Reed,' not to sign my name for the shoes; but I supposed it to be all right. So I signed that box of faucets in the name of Reed. Signed the whole business. Q. Was there anything said about the wagon? A. Yes, they asked what was the number of my wagon. They always do that. That is customary. I told them '105.' Sam told me that was his num. ber; the wagon goes by that number; that the other wagon was broken down." After driving from the Big Four Depot, Rector and the young man who Mintz told him would be his guide, crossed the ferry with him, and finally they drove to Zellinger's place at 2620 Franklin avenue, where all of the shoes were deposited. Zellinger protested about taking all the 146 cases until Mintz told him they would take them away on Monday. Zellinger testified that the young man whose name he does not know told him to walk down the street and see Mintz, which he did, and then it was arranged that Zellinger take all the shoes. Rector testified that after the shoes and the brass faucets were unloaded the team and wagon were turned over to the young man, and that he met Mintz, who gave him $25 for his day's work; that subsequently Mintz gave him other money, trying to get Rector to agree to run away; that Mintz kept promising to give him enough money so he could leave the country, but he failed to produce the agreed amount, and finally Rector was arrested on or about the 17th of September.

The testimony shows that one Zeidell was sent for to buy part of the shoes, and that on Saturday evening-the day the shoes were placed in Zellinger's store-Zellinger gave Zeidell $100, which was turned over that same evening to Mintz. On Sunday Zeidell testified he was sent for, and told to get ordinary dry goods boxes and pack the shoes in; that he and Zellinger, Zellinger's clerk, and the young man who brought the shoes on Saturday opened the cases, and packed the shoes, or rather dumped them, in large dry goods box

That while they were at work at this,

$156 worth, or what was sold to one Volker for that amount, were packed up and sent to this man, said to be from Texas. Defendant was present when the goods were repacked and during the time the sale was being made to the merchant from Texas. That on Monday seven dry goods boxes of these shoes were loaded on an express wagon and taken to 7616 South Broadway, to the home of a man by the name of Isaac Seifer, and put in a shed in the rear of his house, where they remained until Friday of that week, when they were taken away by the police to the Four Courts.

The testimony of the police officers shows that two or three of the original cases were found in Zellinger's place; that in his basement or cellar were found broken boxes with the "Key Brand," showing that they were boxes in which Giesecke shoes had been shipped; and Zellinger testified that the shoes produced in court were like the ones delivered to him by the young man, and which Mintz told him to take.

Zellinger testified that Mintz told him to make the sale to Volker for $156, and that on Monday night Mintz asked Zellinger to give him what money he had, and that he gave Mintz $90.

On or about Thursday of that week the arrests were made, and the shoes recovered. The identification of the shoes was complete, not only from the testimony of the witnesses, but from the invoice sent by the factory which made them, when compared with the shoes themselves.

At the close of the evidence for the state the defendant asked an instruction in the nature of a demurrer, which the court refused. Thereupon the defendant rested his case, and the state dismissed as to the second count of the information. At the close of all the evidence the court instructed the jury, fully covering every feature of the case to which the testimony was applicable. The case was submitted to the jury, and they returned a verdict of guilty, assessing his punishment at imprisonment in the penitentiary for a term of three years. Sentence and judgment was entered in accordance with the verdict, from which judgment the defendant prosecuted this appeal, and the cause is now before us for review.

Thos. B. Harvey, for appellant. H. S. Hadley, Atty. Gen., and Rush C. Lake, Asst. Atty. Gen., for the State.

FOX, J. (after stating the facts). The record in this case presents three legal propositions for consideration: (1) It is insisted that the testimony in this cause does not establish a larceny of the property in the sister state, but simply shows the obtaining of goods under false pretenses, and therefore defendant's offense does not fall within that provision of section 2362, Rev. St. 1899; hence he was improperly convicted under

that section. (2) That the indictment upon which this prosecution is predicated is insufficient, by reason of the omission of any allegation charging that the property was stolen in the state of Illinois and brought to this state. (3) The correctness of the instructions given by the court are challenged, and error is also assigned upon the refusal of the court to give instructions requested by defendant.

Section 2362, Rev. St. 1899, upon which this prosecution is based, provides: "Every person who shall steal, or obtain by robbery, the property of another in any other state or country, and shall bring the same into this state or country, may be convicted and punished for larceny in the same manner as if such property had been feloniously stolen or taken in this state, and in any such case the larceny may be charged to have been committed, and every person may be indicted and punished, in any county into or through which such stolen property shall have been brought." At the very inception of the consideration of the proposition presented to us for solution it is not inappropriate to say that learned counsel for appellant has said everything that can be urged in support of the contentions presented. It must be conceded that it is essential to constitute the offense denounced by the statute that the property in the sister state must be stolen, or obtained by robbery. It is clear that the facts developed at the trial do not show that the property was obtained by robbery. None of the essential elements of that offense are present, according to the testimony offered. Hence that brings us to the consideration of the first proposition-as to whether or not the evidence developed at the trial established the obtaining of the property by larceny, as contemplated by the statute.

It is insisted by appellant that the proof in this case is insufficient to establish larceny; hence that, if it shows anything, it was the obtaining of property under false pretenses. The distinction between larceny and obtaining goods under false pretenses was carefully marked in the recent cases of State v. Anderson, 84 S. W. 946, State v. Buck, 84 S. W. 951, State v. Copeman, 84 S. W. 942, decided by this court. A fair and reasonable application of the rules announced in those cases must furnish the solution of the first proposition presented in this case.

As ap

plicable to this first proposition, the facts are undisputed, and may thus be briefly stated: Rector, who obtained the goods from the railroad company, had been for a long time in the employ of the transfer company that usually received and delivered the freight from the Big Four Depot consigned to Giesecke-D'Oench-Hays Shoe Company. There was little or no conversation between the employés of the railroad company and Rector in respect to getting the cases of shoes. Rector made no representation, and it is apparent that, he having formerly worked for

the transfer company, it was simply taken for granted that he was authorized to receive the goods for the purpose of delivery to the shoe company in the city of St. Louis, and the goods were delivered to him under those circumstances. It is insisted that Rector, having been previously engaged as a driver for the transfer company which was authorized to receive and deliver goods to the shoe company, appearing at the depot of the railroad company in his usual way, with a wagon, calling for the cases of shoes charged to have been stolen, and the delivery of the goods to him under the circumstances, constitutes the offense of obtaining the cases of shoes in controversy under false pretenses; not by larceny. In other words, that while there was no express representations or pretenses made to secure the delivery of the goods, yet, considering all the circumstances which resulted in the obtaining of the goods, it amounts to a pretense or false representation that he was still a driver for the transfer company, with full authority to receive freight for the shoe company, when in fact such pretense was false, and he had no such authority. It is unnecessary to express an opinion upon the correctness or incorrectness of this insistence by the appellant. Courts of high standing have treated conduct similar to that of Rector as amounting to the practice of false pretenses. This contention may be conceded, and still we are quite distant from the solution of the vital and overshadowing question as to whether the defendant, under the facts disclosed at the trial, was guilty of larceny or obtaining goods under false pretenses. The railroad company was in possession of the property charged to have been stolen, and this possession constitutes a sufficient ownership as against the wrongdoer. State v. Waghalter, 177 Mo. 676, 76 S. W. 1028; Greenleaf's Evidence (16th Ed.) vol. 3, § 161. In State v. Anderson and State v. Buck, supra, the distinction between the offenses of obtaining goods under false pretenses and larceny has been clearly drawn. It can serve no useful purpose, nor can it add anything to the legal literature, to burden this opinion with a repetition of what was said in those cases; hence we must be content with a simple reference to the general rules making the distinction in those two offenses as are announced in the adjudications which have met the approval of this court.

The authorities uniformly recognize the narrow margin between a case of larceny and where the property has been obtained by false pretenses, and fully appreciate the nicety as well as the importance of the distinction. In the treatment of the distinction between larceny and obtaining property under false pretenses the authorities employ different terms in giving expression to the rules governing the distinction, but the same conclusion is reached, and the general rule is now settled and fully recognized that,