and Revival, Cent. Dig. 88 205-211, 141-143, Where appellants acquiesced in an objec- tion to proof tendered of the facts alleged in a [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3611; Dec. Dig. § 883.*] the trial court had found against him, the ing actions upon suggestion of death or other judgment would not have been admissible in disability. favor of a third party, not as an admission because of the denial, and not as a judgment because not between the same parties. We find no case where this question has been raised on a record where the default was not entered. But "reason is the soul of the law," and the law should be coextensive with the reason for it. And it is the failure to answer and not the judgment which con- stitutes the admission; the admission was complete in the divorce case when the de- fendant therein, according to his own ad- mission, made no attempt to deny the charge. [7] The facts, if true, that Miller was liv-selected depositaries, and section 3805 requires ing in Kansas at the time, and was a poor Since Rev. St. 1909, c. 34, art. 8, § 3803, merely relates to the deposit of county funds in the choice of the depositary which offers the for requiring the bid to propose to buy county highest interest, and neither section provides warrants at par, the fact that the order accept- ing the bid recited that the successful bank pro- posed to pay par for county warrants, while such provision was not contained in the sealed bid, would not invalidate the acceptance of the [Ed. Note. For other cases, see Depositaries, Cent. Dig. § 20, 25, 26; Dec. Dig. § 6.*] 5. DEPOSITARIES (§ 6*)-COUNTY MONEYS. authorized the county court to reject any bid Since Rev. St. 1909, c. 34, art. 8, § 3805, for the deposit of county moneys, the Supreme Court will not review the county court's action in selecting a depositary unless it clearly ap- pears that its discretion has been abused. [Ed. Note. For other cases, see Depositaries, Cent. Dig. § 20, 25, 26; Dec. Dig. § 6.*] 6. DEPOSITARIES (8 7*)-BONDS-AFFIDAVITS OF SURETY-"COUNTY DEPOSITARIES." Rev. St. 1909, § 1226, under the heading "official bonds," providing that no official bond shall be approved until after the sureties swear to a statement, duly attested, stating names, Where no exception was saved to court's action in sustaining a motion to strike out a part of the petition, and the ruling was not referred to in the motion for new trial, it [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1486, 1684-1690; Dec. 2. ABATEMENT AND REVIVAL (§ 40*)-SUG- not being "public officers," but debtors of the [Ed. Note. For other cases, see Depositaries, Cent. Dig. § 21; Dec. Dig. § 7.*] Appeal from Circuit Court, Stoddard County; W. N. Evans, Judge. Action by J. A. Barrett and others against Stoddard County, Missouri, and others. From a judgment for defendants, plaintiffs The following statement of the case is This is an action by 50 and more resi- In an action to have the county court's dent, solvent, and responsible taxpaying citi- selection of defendant bank as a county deposi-zens of Stoddard county, Mo., against the tary annulled, an amendment to the petition al- above-named defendants, for the purpose of leged that since the commencement of the ac- having the action of the county court of tion the bank had sold and assigned its assets to another bank which had assumed all of as- said county, in selecting the Bank of Essex, signor's liabilities, except that it refused to of Essex, Mo., as the depositary of the va- accept its contract to be county depositary, and rious funds of the county and the funds un- that defendant bank was dissolved, but that on der the control of the county court, in- the refusal of its assignee to become county depositary it had assigned its contract to an- quired into and annulled, and for a manda- other by an illegal assignment. Held, that the tory injunction requiring said defendants to amendment was not a suggestion that defend- refrain from all further action under said ant bank was no longer a legal entity so as to abate the action under Rev. St. 1909, §§ 1916, selection, and to require said county court 1917, providing for the abatement of nonsurviv- to either re-advertise and relet said funds, or to accept the bid of the City Bank of Bloomfield, Mo., the alleged highest and best bidder. to act as such depositary for the two years next ensuing this date, is of the opinion that the bid of the Bank of Essex, proposing to pay 4% per cent. on daily balances, and in addition thereto to buy all warrants issued by said court, not in excess of the revenue, at par, is the best bid offered. It is therefore ordered by the court that the said Bank of Essex be and the same is hereby selected as the depositary of all funds now in the hands of the county treasurer, or that may hereafter come into his hands, except that moneys that may hereafter be realized from the sale of the drainage district bonds, said bank to pay monthly to said county interest on daily balances at the rate of 4% per cent. per annum; and it is further ordered that the said Bank of Essex enter into bond to said county as such depositary in the sum of $250,000, as required by law." The facts of the case are as follows: The county court of Stoddard county, Mo., in due season, caused the clerk of said court to publish a notice in the county newspapers to the effect that said court would, on May 6, 1907, "receive sealed proposals from any banking incorporation, association or individual banker" that might desire to be selected as the depositary of the county, and in other respects complying with the law. On May 6, 1911, the day designated, the said county court met, and at noon opened the several bids received, and caused said bids to be spread upon the records of the court. The court thereafter adjourned, taking the matter of a selection of a depositary under consideration until the next day. Among the several bids so received was the bid of the Bank of Essex, of Essex, Mo., which said bid was as follows: "Essex, Mo., May 6, 1907. To the Honorable County Court of Stoddard County, Missouri-Gentlemen: We, the undersigned Bank of Essex, Essex, Mo., bid for the county money for the ensuing two years, as advertised in the Bloomfield Vindicator, 4 and five-eighths per cent. per annum on daily balances. We further agree to maintain a paying station in the city of Bloomfield during the entire period of said contract, and to furnish good and sufficient bond for the faithful performance of the duties thereto, and safe custody of all moneys coming into our hands. This bid is accompanied by a certified check for the sum of one hundred and sixty-four dollars. Respectfully submitted, Bank of Essex, by Phillip Collins, President. Attest: C. L. Harri-These affidavits were attached to and filed son, Cashier." On May 11, 1907, the said Bank of Essex filed its bond, as directed by the order of the court, in the penal sum of $250,000, conditioned upon the faithful performance of the duties and obligations devolving upon it by law as such depositary, the payment of all checks drawn upon it by the county treasurer, whenever sufficient funds in depositary, the faithful keeping of all county funds, district school funds, capital school funds, road funds, bridge funds, and drainage funds, and the accounting for same according to law to its successor, and the payment of 4% per cent. interest on daily balances. Said bond was signed by 14 sureties, 13 of whom justified on said bond by making affidavit stating the amount and location of their personal and real property. with the said bond in the office of the clerk of the said court, showing said sureties to be worth the sum of $109,000 in personal property, and $188,300 in real estate. From the latter sum, however, must be deducted the sum of $26,000 mentioned in said affidavits as incumbrances on their said real estate. Said bond was at once approved by of sureties, who own unincumbered real estate in the state of Missouri of as great a value as the amount of the said bond." The bid of the City Bank of Bloomfield, Mo., was as follows: "Bloomfield, Mo., May 6, 1907. To the Honorable County Court, Stoddard County, Missouri-Gentlemen: The City Bank of Bloomfield, Mo., desires to be selected as the depositary for the next two ensuing years of the county funds, district school funds, capital school funds, drain- the court as "signed by the required number age funds, road funds, and all money under and coming under the control of the county court of Stoddard county, Missouri, and agrees to pay interest on daily balances on On July 3, 1907, this action was instituted all funds so deposited at the rate of four for the purposes above mentioned, by filing and five-eighths per cent. per annum (pay-petition, and the court thereupon issued a able monthly). And further agrees to pay temporary writ restraining the defendants face value for all county warrants, and to execute a sufficient bond as the law directs. City Bank of Bloomfield, Mo., by George Houck, President." When the court convened the next day, pursuant to adjournment, it took up the matter of the selection of a depositary and made the following order: "The matter of the selection of a county depositary again being taken up for consideration, and the court, after considering all the bids filed by the various banks of the county of Stoddard from proceeding further under said selection, and directing the payment of the funds in question to the City Bank of Bloomfield, Mo., which was accordingly done. The cause was thereafter removed, on the application of defendants, to the circuit court of Howell county, Mo., and thereafter, before the trial of said cause, appellants filed an amended petition differing from the original only in the following allegations: "Plaintiffs further state that since the commencement of this action the said Bank of Essex has sold and [3] Furthermore, when objection was made to proof tendered of the facts so alleged, appellants acquiesced in the objection made, and withdrew the tender. assigned all its assets, good will, and busi- | was sustained, these issues passed out of the ness to the Farmers' Bank of Essex, and case; no exception having been saved. that said last-named bank has assumed all the liabilities of the said Bank of Essex, except that said Farmers' Bank declined and refused to accept the contract of said Bank of Essex with said Stoddard county to be county depositary, and that said Bank of Essex has ceased to do business or to operate as a bank, and that its affairs are now liquidated and said banking company dissolved. Plaintiffs further state that upon the refusal of said Farmers' Bank to become county depositary, as aforesaid, said Bank of Essex assigned its said supposed contract as such depositary to one Alfred L. Harty; | that said assignment was illegal and void, and has not been accepted by the county court of Stoddard county, nor has the said Alfred L. Harty ever given any bond or other obligation with respect thereto." Thereafter, on February 12, 1909, defendants filed a motion to strike out that portion of the amended petition above set out, which, upon being heard by the court, was sustained, and said paragraphs ordered stricken out. It was admitted, among other things, by respondents' answer, that plaintiffs were res1dent, solvent, and responsible taxpaying citizens of Stoddard county, Mo.; that the City Bank is a resident of Stoddard county, and duly incorporated; that it was engaged in a general banking business and was a solvent institution; and that it accompanied its bid with a certified check as required by law. Upon the trial of the cause, the court, after hearing plaintiffs' evidence, upon motion of defendants dissolved the temporary injunction and dismissed plaintiffs' bill, from which said action on the part of the court plaintiffs have perfected their appeal to this court. R. S. Houck, of Bloomfield, and H. S. Shaw, of Dexter, for appellants. N. A. Mozley and Wammack & Welborn, all of Bloomfield, for respondents. FERRISS, J. (after stating the facts as above). I. Appellants contend that the allegations made in the amended petition, to the effect that the Bank of Essex was dissolved, deprived the court of further jurisdiction, and that the action abated. [1] No exception was saved to the action of the court in sustaining the motion to strike out this portion of the petition, nor was such ruling of the court referred to in the motion for a new trial; hence, the matter is not before us in proper form for review. [2] Nor can this amendment be treated as a suggestion to the court that the corporation was no longer a legal entity. There was no such suggestion of disability as is contemplated by sections 1916, 1917, R. S. 1909. The facts alleged were tendered as issues in the case. When the motion to strike out [4] II. Appellants further contend that the acceptance of the bid of the Bank of Essex by the county court was void, because the order accepting the bid recites that the bank proposed to pay par for county warrants; such provision not being contained in the sealed bid. It is claimed that this acceptance does not correspond to the bid, and hence there was no meeting of minds, and no contract made. The argument is based upon the proposition that the county court, possessing limited jurisdiction, must follow the exact provisions of the statute. This objection would possess more merit if either of the contracting parties was objecting. It is difficult to perceive how this alleged irregularity injuriously affects the taxpayers who are the complainants. However, we are not impressed by the objection. The notice, bid, and order of acceptance conform to the statute. Article 8 of chapter 34, R. S. 1909. Section 3803 of said article deals only with the funds of the county. There is nothing in the statute about the purchase of county warrants by bidders therefor. The proposition to buy county warrants at par has no place in the bid, so far as the statute is concerned, and in no way affects the duty of the county court to select the depositary which "makes the largest offer for the payment of interest." Section 3805. In this regard, both bids conform to the statute, and are alike. The offer to buy county warrants, whether contained in the sealed bid or not, addresses itself to the discretion of the court, where the bids are otherwise equal. From the standpoint of the law, then, the two bids were equal. There is no showing in favor of either bank as to reliability and resources. They seem of equal merit. We see no ground for the charge of unfair discrimination or abuse of discretion. [5] The statute (section 3805) gives the county court the right to reject any bid, and, unless it clearly appears that this discretion has been abused, this court will not review the county court's action. Reagan v. County Court, 226 Mo. 79, 125 S. W. 1140. What we have just said disposes of the further contention of appellants that the selection of the Bank of Essex "was arbitrarily and oppressively made, and was the result of prejudice and favoritism." We find no evidence in the record to sustain such charge. III. Lastly, appellants urge that the bond filed by the Bank of Essex "did not meet the requirements of the depositary act." The statute requires the bond to be approved by the county court, "with not less than five solvent sureties, who shall own unincumbered real estate in this state of as great value as the amount of said bond." The order of the county court approving the bond contained this recital: "The court having examined said bond, and finding same signed by the requisite number of solvent sureties who own unincumbered real estate in the state of Missouri of as great value as the amount of the bond, it is further ordered by the court that said bond be and is hereby approved." [6] The record shows that, of the 14 sure ties who signed the bond, 13 filed affidavits of their real estate holdings, aggregating $162,300. The fourteenth signer filed no affidavit. Counsel for appellants contend that the depositary is a public officer, and must qualify as such under section 1226, R. S. 1909. In this we think counsel err. Said section is found in the chapter headed "Official Bonds," and plainly applies to public officers proper. We held in Henry County v. Salmon et al., 201 Mo. 136, 100 S. W. 27, that county depositaries are not public officers, but are debtors of the county, and that the bond is given to secure the debt. The depositary statute (section 3806) requires the bond to have at least five solvent sureties, owners of real estate to the value of the face of the bond, and to be approved by the county court. Nothing more. There is no provision for affidavits of the sureties. It is left to the court to satisfy itself as to the solvency of the sureties and the value of their real estate. So far as this record goes, the fourteenth signer of the bond may have been worth its face in unincumbered real estate. The law imposes upon the county court the duty of ascertaining the qualifications and sufficiency of the sureties. In this case the court has found as a fact that the sureties were of the requisite number and possessed the necessary qualifications, and the record of that court so shows. There is nothing in the record before us to justify an attack upon this finding of the county court. The judgment is affirmed. BROWN, P. J., and KENNISH, J., concur. STATE v. BAKER. (Supreme Court of Missouri, Division No. 2. Dec. 10, 1912.) 1. COURTS (8 35*)-JURISDICTION-PRESUMP TIONS. Want of jurisdiction of a court of general jurisdiction must be affirmatively shown and will not be presumed from mere failure of the record to show jurisdiction. [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 140, 141, 145, 146; Dec. Dig. § 35.*] was called for trial, denial of a continuance is not reviewable. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2926; Dec. Dig. § 1118.*] 3. CRIMINAL LAW (§ 354*)-INSANITY-EVIDENCE-ADMISSIBILITY. Evidence of insanity of collateral kindred is not relevant under the defense of insanity. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 760; Dec. Dig. § 354.*] 4. CRIMINAL LAW (§ 354*)-INSANITY-EVIDENCE-ADMISSIBILITY. ity, the evidence shows that accused's aunt was Where, in support of the defense of insanadjudged insane, other evidence on that subject was unnecessary. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 760; Dec. Dig. § 354.*] 5. CRIMINAL LAW (§ 1170*)-HARMLESS ERROR-ERRONEOUS EXCLUSION OF EVIDENCE. cating that a person was insane, the exclusion Where a nonexpert testified to facts indiof the opinion of the witness that such person was insane was not prejudicial. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3145-3153; Dec. Dig. § 1170.*] 6. CRIMINAL LAW ( 1170*)-EVIDENCE-IN SANITY. Where the evidence showed that a grandfather of accused relying on the defense of insanity, was married and had children, and died at 80 or 90 years of age, and that for a number of years before his death his mind failed, the exclusion of evidence as to the family tradition that the grandfather's mind had been bad for years, and that towards the last he lost his mind and had to be taken care of, was not prejudicial to accused. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 3145-3153; Dec. Dig. § 1170.*] 7. CRIMINAL LAW (§ 823*)-INSTRUCTIONS MISLEADING INSTRUCTIONS. he An instruction that, if accused by the plained by instructions killed decedent, means charged in the "indictment" and exshould be found guilty of murder or manslaughter, was not objectionable for using the word "indictment" instead of the word "information," where other instructions properly distinguished between the different degrees of the offense charged in the information charging murder in the first degree. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. § 823.*] [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 715-720; Dec. Dig. § 340.*] 9. CRIMINAL LAW (§ 1171*)-IMPROPER ARGUMENT OF PROSECUTING ATTORNEY-REFERENCE TO FAILURE OF ACCUSED TO TESTIFYEFFECT. Where a conviction would have been reach ecuting attorney referring to the failure of accused to testify, the misconduct of the prosecuting attorney was not ground for a reversal, especially where the language was withdrawn 2. CRIMINAL LAW (§ 1118*)-QUESTIONS RE-ed without the improper argument of the prosVIEWABLE-DENIAL OF CONTINUANCE. Where the bill of exceptions does not show an application for a continuance, but shows that accused announced ready when the case *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes by him and the court directed the jury to dis- I made an appointment to meet him, and failregard the language. ed to keep it. The evidence for the state was to the ef [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 3126, 3127; Dec. Dig. fect that he corresponded with her through 1171.] 10. CRIMINAL LAW (§ 1171*)-IMPROPER AR-a saloon, and that on the night of the killing GUMENT OF PROSECUTING ATTORNEY - EF- he put a pistol in his pocket, went by the saloon, got one or more drinks, and went to the flat occupied by Ruby Hirsch and her FECT. Where the evidence established the guilt of accused, the misconduct of the state's attorney, in his argument, in calling God to wit-mother. ness the sincerity of his belief in the guilt of accused, was not ground for reversal. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. 1171.*] 11. JURY (§ 106*)—QUALIFICATION OF JURORS -BIAS. A juror, who states on his voir dire that he is unfavorable to the defense of insanity which will be relied on, and who has prejudice against a bogus defense of insanity, but who will try the case according to the evidence and the instructions, is a competent juror. [Ed. Note.-For other cases, see Jury, Cent. Dig. § 485, 494; Dec. Dig. § 106.*] A witness, Emil Myer, testified: "That, when defendant reached the Hirsch home, the witness had been there about two hours, and had gone into the bathroom adjoining the front room, when the defendant called. That the bathroom door was slightly open. That the defendant, on coming into the front room, said to Ruby, "You done me dirty," and she said: "No, I didn't. Mama wanted me to stay here." That defendant said, "Where's that ten I sent you?" She said, "If that is what you want, I will get that for you and you can go." That then defend Appeal from Circuit Court, Jackson Coun- ant pulled a pistol from his pocket and fired ty; E E. Porterfield, Judge. E. M. Baker was convicted of murder in the second degree, and he appeals. Affirmed. Under an information charging murder in the first degree, the defendant was convicted of murder in the second degree and sentenced to 15 years in the penitentiary, and has appealed. at her five times. She fell unconscious and was taken to the general hospital, where she died the following night of her wounds. The defendant, in a statement made by him the morning after the killing and while under arrest, said that he remembered putting the pistol in his pocket and taking a drink at Riddle's saloon the night before, but that he did not remember what occurred after that. The defense was insanity. The evidence for the state tended to show a strong case of "wine and woman." Prior to his acquain- The mother of Ruby Hirsch testified that tance with deceased, the defendant was an she was on the back porch and heard a shot apparently prosperous contractor and builder fired and heard Ruby scream, then heard four in Kansas City. He had a family consisting more shots, and when witness got into the of a wife and three children, of whom a son front room she saw Ruby lying on the floor and daughter were grown. The son was and the defendant standing over her, pointmarried and worked with the father. The ing the pistol at her. She did not remember two daughters were at home. Defendant what was said by either her or the defendwas attached to his home and family. He ant. The witness ran out calling her other lived in a house belonging to the wife. It daughter and left defendant standing there. was incumbered. About four years before When she got back, the defendant was gone. the trial, he met Ruby Hirsch, the deceased, | About 4 o'clock the next morning he passed who was about 18 years old, and illicit re- across from the opposite side of the street lations between them began at once. He to his house, barefoot and hatless, in his became infatuated with her, and, according shirt sleeves, and was arrested by the offito his statement, gave her $40 or $50 a cers who were waiting for him. His dismonth. When his bounty slackened, she carded clothing was found a few blocks threatened him that she would reveal the away between the sidewalk and the street situation to his wife. She sued him for in the weeds which were mashed down and $8,000 as damages for an assault. He had "looked like he had been wallowing around the house where she lived raided by the there." police, and she was fined $25 as an inmate The defendant was born in Scotland counof a bawdyhouse. The suit against him was ty, Mo., and lived there until about 13 years then dismissed for want of prosecution. of age, going with his family in 1878 to the Their relations continued. He became more vicinity of Phillipsburg, Kan., where the and more addicted to liquor. His business, family lived on a farm. He was badly afto a large extent, left him, or was neglected. flicted with asthma until he left Missouri, He borrowed small sums of money to satisfy and had frequent spells of suffocation on acher demands, and suspected her of using the count of that affliction, and was known to money he gave her in keeping up other men. | wake at night and try to climb the walls of She went on a visit to Topeka. He sent her the room. His asthma disappeared after he $10 to pay her expenses home. When she went to Kansas; but the evidence of his arrived in Kansas City, at his request, she | brothers and sisters showed that he had For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |