the work, not control its manner of performance so to be answerable for injury done by the contractor's operations to adjoining land. In a second case, the work was to be done "according to specifications and agreeably to the directions of the (company's) engineer," "earth excavations to be hauled into embankments as far as the engineer directs."

Suit was brought by one over whose land the contractor had dumped waste dirt. The decision was that the contract did not give the company control over the particular act complained of, and in relation to other clauses of the contract, too long to be put down here, the rule was laid down that a right to direct the amount of work is not identical with a right to prescribe the mode of operation.?

On the other hand, where a contract was to take down a house "carefully, and under direction and subject to approval" of the owners, who, it appeared were present and gave directions almost daily, the owners were held liable as masters.8

The question of independent employment, then, is ruled largely by the circumstances of the case, and the actual intention of the parties.

There is one set of cases to which the strict rule of master and servant applies, as it is said, with uniformity of decision, where personal property is hired out, and with it a servant of the owner to manage it; the contract is said to be, not with the servant, but with the owner of the property, the owner who has lent or hired out his servant still has control over the doer, and, constructively, over the doing of the work.

Cases of this kind may occur where a railroad company supplies its contractor for building the road with a construction train and hands to run it, the train and the men to be entirely under control of the contractor except, perhaps, as to a maximum rate of speed, and the keeping out of the way of regular trains.

Here the company is liable for injury done by the train.9

Another example is that of a workman in the employ of a stevedore, who was injured by the carelessness of the engineer lent by defendants to the stevedore along with their engine.10

On the question of nuisance, also the principal case accords with the authorities. A municipality may, in cases justified by necessity or custom, as for instance, laying of pipes, building, and the like, permit the highway to be occupied by private individuals to an extent which but for this permission would amount o a nuisance; and in such cases the owner is not answerable for his contractor's neglect. So, also, although the work requires some labor or some engine in its nature hazardous; provided, however, that this dangerous work may, by using proper care be done with safety, and has then the sanction of custom or regulation; and that the contract contemplates only such careful use. The presumption is, the owner intended the work to be done properly and carefully.11

Philadelphia.

CHARLES CHAUNCEY SAVAGE.

7 Burmeister v. R. R. 47 N. Y. S. C. 264; Hughes v. C. & S. Ry. 39 Ohio St. 461.

8 Linnehan v. Rollins, 137 Mass. 123.

9 Railroad v. Norwood, 62 Miss. 565; Burton v. Railroad. 61 Texas, 526.

10 Coyle v. Pierrepont, 37 Hun. (N. Y.) 379; reversing same case, 33 Hun. (N. Y.) 311.

11 Smith v. Simmons, 103 Penna. St. 32; Martin v. Tribune Assn,, 30 Hun. 391; Lawrence v. Shipman, 39 Conn., 587; (Seymour, J. sitting as arbitrator.) Aston v. Nolan, 63 Cal. 269; Bailey v. Railroad, 57 Vt. 252.

CRIMINAL LAW-JURISDICTION OF CRIME.

STATE V. SHAEFFER.

Supreme Court of Missouri, June 21, 1886. 1.Jurisdiction- Where Crime Consummated-Where a defendant obtains money by false pretence by means of a sight draft drawn by him in Kansas City, Mo., on a New York bank, and sent by a Kansas City bank, in which it was deposited, for collection to the New York bank, and by it collected and the amount forwarded to the Kansas City bank where the defendant receives the money, the crime is consummated in New York.

2. Instruction-Reasonable Doubt-Preponderance of Evidence-An instruction explaining what is meant by a reasonable doubt, which declares that "if all facts and circumstances proven can be as reasonably reconciled with the theory that the defendant is innocent as with the theory that he is guilty," is improperly given, as this directs a verdict upon a mere preponderance of evidence.

Appeal from Jackson County criminal Court.

Messrs. J. V. C. Karnes and John W. Beebe, attorneys for Schaeffer; and B. G. Boone, Attorney General, and F. W. Walker, for the State.

The facts are stated in the opinion of the court. HENRY, C. J., delivered the opinion of the

court:

The defendant was indicted by the grand jury in the criminal court of Jackson county, at the May term, 1885. The following are the charges:

The first count charges that the defendant obtained a large amount of money from John I. Blair under false pretenses, the false pretenses consisting of representations, to Blair, that he, the defendant, had arranged with the heirs of one Anthony to purchase of them for Blair,their interterest in a certain tract of land lying in Jackson county, near Kansas City, and that Blair was to have the land at the lowest price at which it could be obtained, when in fact he purchased it at one price and represented to Blair that he paid a larger sum, and on the foregoing representations obtained from Blair more than the defendant paid to Anthony's heirs.

The second count charged that the defendant was the agent of said Blair, and, as such. received into his possession a large sum of money, which which he feloniously converted to his own use. It is not necessary to give any other attention to these two counts. the trial court having, by instruction, withdrawn from the jury all consideration of those counts, confining their inquiry to the charges in the third count, which is as follows:

"And the grand jurors aforesaid, upon their oaths as aforesaid, do further say and present that Samuel C. Shaeffer, at the county of Jackson, in the State of Missouri, on the -day of February, 1884, did unlawfully and feloniously obtain, from one John I. Blair, the sum of $7,650, .lawful money of the value of $7.650 of goods, chattels, moneys and property of the said John I. Blair, by means and by use of a cheat and a fraud, and a

false and fraudulent representation and false pretense, and false instrument and statement with the intent him, the said John I. Blair, then and there feloniously to cheat and defraud, contrary to the form of the statutes, and against the peace and dignity of the State."

On this count the jury found him guilty, and assessed his punishment at imprisonment in the penetentiary for a term of eight years, and defendant has prosecuted his appeal.

The evidence of the State tended to prove that the defendant made representations to Blair to the effect that he had agreed to pay to the Anthony heirs for their interest in a tract of land near Kansas City, $8,450, having, in fact, purchased the same at the price of $800.

The agreement between Blair and defendant in relation to the interest of the Anthony heirs in the tract was, that Blair would place the money to make that purchase to defendant's credit in such bank at Kansas City as defendant might suggest by telegraph, or that he would pay defendant's draft at sight, National Park Bank, New York.

It appears that 'defendant telegraphed Blair February 12, 1884, that he had drawn on him for $19,668.83, which sum included the $8,450 for the Anthony heirs. The draft read as follows: "19,668.33.

KANSAS CITY, Mo., Feb. 12, 1884. "At sight, pay to the order of myself, nineteen thousand, six hundred and sixty-eight dollars and thirty-three hundredth dollars, with exchange, value received, and charge to account of

JOHN I. BLAIR. "To Park National Bank, New York City. "S. C. SHAEFFER."

This was indorsed by Shaeffer to the Traders Bank of Kansas City, which sent it for collection to the United States National bank, New York, which collected it and placed it to the credit of the Traders' bank of Kansas City, which, after informed of the payment of the draft in New York, paid the amount to Shaeffer, at Kansas City.

On this state of facts, the question arises, where was the offense with which the defendant is charged committed?

It is no crime to make use of false pretenses, unless, by means of such pretenses, the party making them obtains money, or property from another to which he had no right. And the crime is consummated where the money or property is received. Commonwealth v. Troyl, Met. (Ky.) 1; State v. House, 58 Ind. 466; Stewart v. Jessup, 51 Ind. 415. In the latter case, the substantial facts were that one Kerr, relying upon false representatives of Stewart, sold the latter, twelve horses, which Kerr had shipped to New York, where Stewart got possession of them; Stewart was arrested in Indiana on the charge of obtaining the horses by false pretenses, and, on a preliminary examination before a justice of the peace, was adjudged guilty and required to give security in the sum of $3,000 for his appearance in the circuit

court to answer the charge. Stewart, not having given the security, was committed to jail, and upon a writ of habeas corpus was brought before the circuit court of Hamilton county, and on appeal to the Supreme Court of the State from a judgment of the circuit court against him, the Supreme Court reversed the judgment, holding that the crime was not committed in Indiana, where the false representations were made, but in the State of New York, where the property was received. Numerous decisions of that court to the same effect are cited in the opinion. Norris v. State of Ohio (25 Ohio State, 217), is also a case analagous to the case at bar. The defendant was a resident of Clark county and, by fraudulent representations as to his solvency, in a letter, he induced the Akron Sewer Pipe Company, located in Summit county, to ship him by rail to Clark county a lot of sewer pipe. He was indicted in Clark county, but the Supreme Court held that the crime was committed in Summit, and remarked that "the weight of authority is clear that the railroad company was the agent of defendant for receiving the goods for him at Akron and carrying them to Springfield, and the delivery to it by the sewer pipe company was, in legal contemplation, a delivery of the goods to the defendant at Akron."

So in the People v. Sully, 5 Parke's Com. Ref. 145), defendant was indicted in Buffalo, Erie county, he having obtained by false pretense in Buffalo, a check drawn on a bank in Batana, Genesee county. The indictment was for obtaining the signature to the check, and it was held that he was properly indicted in that county, but the court said: "It is not material where the pretenses were made. The obtaining the signature or property by means of them, with intent to cheat and defraud, completes the crime and determines the place of trial.” And further remarked the court: "The prisoner could not have been convicted on the first count for obtaining the money through, or by means of the check, for the money was obtained at Batana, without the territorial jurisdiction of the court.”

So in State v. Wychoff, 31 N. J. 68, the general proposition is asserted that a crime is to be tried in the place in which the criminal act has been committed. It is not sufficient that part of such acts shall have been done in such place, but it is the completed act alone which gives jurisdiction."

In the State v. Dennis, 80 Mo. 594, the defendant was indicted for obtaining, by false pretenses, a lot of mules, and the question was whether he had received the mules in Randolph county or in the city of St. Louis In delivering the opinion of the court Judge Norton said: "It is, however, earnestly insisted by counsel that, if any offense was committed, the evidence shows that it was committed in the city of St. Louis and not in Randolph county, and that the demurrer to the evidence should have been sustained on the ground that the Moberly court of common pleas, of Randolph county, had no jurisdiction. If the pre

mises assumed be well founded, the legal conclusion drawn from them is undoubtedly correct." The judgment was affirmed, the majority of the court holding that the mules were received by defendant in Randolph county. I dissented, believing that the evidence established the reception of the mules in the city of St. Louis.

We entertained no doubt that the place where the money or goods are obtained, without regard to where the representations were made, is the place where the party should be prosecuted.

Where did Blair pay the money? Where did he lose his property in the money and his dominion over it? If he deposited it in the Park National bank to the credit of Shaeffer, that was a payment in New York to Shaeffer. If he had money on deposit to his own credit, and directed the bank to pay it on Shaeffer's check or draft, then, when so paid in New York, whether on Shaeffer's check or draft, he then parted with his money. The United States National bank was the agent of the Traders bank at Kansas City, which was unquestionably the agent of Shaeffer. Neither of those banks were, in any sense, the agent of Blair. But whether the United States National bank is to be considered as the agent of Shaeffer, or the agent of the Traders bank, is wholly immaterial, since it is clear that it was not the agent of Blair, or of the National Park bank, after the National Park bank paid the money in the United States National bank. Blair's obligation to pay the money was discharged, and if that bank had become insolvent, or failed to account for the proceeds of the check to the Traders bank, Shaeffer could have had no recourse upon Blair. The Traders bank received the draft for collection for Shaeffer's accommodation, and paid him the amount of the draft only on the assurance from its correspondent in New York that the Park bank had paid the draft; that the Traders bank then paid the amount of the draft to Shaeffer was not a payment by Blair. But the substance of the transaction was the collection of the money in New York from Blair, and a disposition in Kansas City by Shaeffer of that money so colleeted in New York. If instead of receiving the money, Shaeffer had received property in Kansas City from the Traders bank, instead of the money, the principle applicable would have been the same. The Traders bank paid Shaeffer its money, not Blair's. The United States National bank held the money sent, not as Blair's money but really as Shaeffer's, though nominally as the money of the Traders bank, and the transfer of the draft to the Traders bank by Shaeffer, operated to transfer the proceeds of the draft to the Traders bank when paid by the Park National bank to the United States National bank. A merchant in New York who draws a draft on a customer in St. Louis, which is paid by the latter to the bank in St. Louis, to which the draft is sent for collection, does not thereby pay the money in New York but in St. Louis, and that the New York merchant indorses

it for collection to a bank in New York and secures the money in New York from that bank after the latter has notice of the payment of the draft in St. Louis to its correspondent there, does not make the payment by his customer to the bank in St. Louis a payment of the money to the New York merchant in New York. There are other important questions in this case, which it is not thought necessary to determine, in as much as holding that the crime was not committed in Jackson county, and that the criminal court of that county had no jurisdiction of the cause, the judgmust be reversed and the accused discharged. There is, however, one instruction given by the court for the State, upon which it is thought best to express our views. It is as follows: Sixth"In law a party accused of crime is presumed to be innocent, until the contrary is proven beyond a reasonable doubt. If, therefore, upon a consideration of all the evidence in this cause you entertain a reasonable doubt as to the guilt of the defendant, you will give him the benefit of such a doubt and find him not guilty. In applying the rule as to reasonable doubt, you will be required to acquit,if all the facts and circumstances proven, can be reasonably reconciled with any other theory than that the defendant is guilty; or, to express the same idea in another form, if all the facts and circumstances proven before you, can be reasonably reconciled with the theory that the defendant is innocent, as with the theory that he is guilty, you must adopt the theory most favorable to the defendant, and return a verdict finding him not guilty. You will observe, however, that the doubt to authorize an acquittal on that ground alone, must, as stated, be reasonable, and it must be also as one fairly deducible from the evidence considered as a whole. The mere possibility that the defendant may be innocent will not authorize an acquittal." "It declares very properly" that "one accused of crime is pronounced to be innocent until the contrary is proven beyond a reasonable doubt. If, therefore, upon a consideration of all the evidence in this case, you entertain a reasonable doubt of the guilt of the defendant you will give him the benefit of such doubt, and find him not guilty," but then proceed to explain what is meant by a reasonable doubt as follows:

as

"In applying the rule as to reasonable doubt, you will be required to acquit, if all the facts and circumstances proven,can be as reasonably reconciled with the theory that the defendant is innocent, as with the theory that he is guilty, you must accept the theory most favorable to the defendant, and render a verdict finding him not guilty." This attempted explanation of the term "reasonable doubt" would eliminate it from the criminal code, and leave juries to find verdicts in criminal cases upon the mere preponderance of the evidence.

By that explanation, the benefit of a reasonable doubt in criminal cases is no more than the advantage a defendant has in a civil case. The doc

trine expressed in the explanation is exactly that which is applicable in a civil action, in which if the facts proven, can be as reasonably reconciled with the theory that the defendant owns what he is sued for, as that he does not, the defendant is entitled to a verdict. The plaintiff must make out his case, and if the evidence is evenly balanced he cannot recover. But for the explanation of what was meant by reasonable doubt, the in· ·struction correctly declares the law, and why that should have been injected into the instruction is inconceivable.

The instruction in regard to reasonable doubt approved in State v. Newshin,20 Mo. 111, has been repeatedly sanctioned by this court. Juries understand it. The bench and bar are familiar with it, and it is not safe to depart from it, in efforts to make clear what is now well understood.

This case illustrates the danger of such experiments. Here the said matter introduced into the instruction vitiated it, and if for nothing else, the judgment would have been reversed for that erAs long as this court adheres to what it has ruled, especially in criminal cases, it is the better and safer practice for trial courts to be guided by its rulings. The judgment is reversed, and the prisoner discharged.

ror.

Following is Judge Norton's concurring opinion in the above case:]

I place my concurrence in reviewing the judg ment in this case, not only on the ground so clearly stated in the opinion of the court, but on the further ground that the misrepresentations made by the defendant, if made as disclosed in the evidence, and for which it is sought to make him criminally liable, having been made in the progress of a long, real - not bogus - business transaction, are not embraced in the class of offenses against which section 1561, revised statutes, is directed. In what is here said, Judge Ray concurs with me.

.282 +

NOTE. The law deems that a crime is committed in the place where the criminal act takes effect. Hence, in many circumstances, one becomes liable to punishment in a particular jurisdiction while his personal presence is elsewhere. Even in this way he may commit an offense against a State or country upon whose soil he never set his foot. Thus, where a person who puts forth a letter making a false pretense to a person who thereupon parts with his goods in the county where he receives it, he may be indicted in the county to which it is sent, though he does not go there him. self.

In People v. Adams,2 the intent to cheat and defraud were virtuany conceded, and the alleged criminal acts were expressly admitted to have been committed by the defendant in the City of New York, through the

11 Bish. on Crim. Procedure, (3rd ed,) § 53; See Reg. v. Jones, 1 Den. C. C. 551; Temp. & M. 270; 1 Eng. L. and Eq. 533; Norris v. The State, 25 Ohio St. 217; Adams v. People, 1 Comst. 173; People v. Adams, 3 Denio, 190; Reg v. Leech, Dears, 612, 7 Cox, C. C. 100, 36 Eng. L. and Eq., 589; Reg. v. Cooke, 1 Fost. & F, 64.

23 Denio (N. Y.), 190.

instrumentality of innocent agents, the defendant at the time being in the State of Ohio. As there was no question raised as to the form of the indictment or plea, the only point presented to the court for decision was, whether there was an offense committed by the defendant "within the boundaries of the State of New York," the crime charged being a statutory offense. In delivering the opinion, Beardsley, J., said: Suydam Sage and Co. were induced by false and fraudulent pretenses to sign certain written instruments, and to part with large sums of money. The fraud may have originated and been concocted elsewhere, but it became mature, and took effect in the City of New York, for there the false pretenses were used with success, the signatures and money of the persons defrauded being obtained at that place. The crime was therefore committed in the City of New York and not elsewhere. Personal presence, at the place where a crime is perpetrated, is not indispensable to make one a principal offender in its commission. Thus, where a gun is fired from the land which kills & man at sea, the offense must be tried by the admiralty and not by the common law courts; for the crime is committed where the death occurs, and not at the place from whence the cause of the death proceeds. And on the same principle, an offense committed by firing a shot from one county which takes effect in another, must be tried in the latter, for there the crime was committed. such cases the person is an immediate actor in the perpetration of the crime, although not personally present at the place where the law adjudges it to be committed. He is there, however, by the instrument used to effect his purpose, and which the law holds sufficient to make him personally responsible at that place for the act done there." In Reg. v. Leach, a letter containing a false pretense was received by the prosecutor through the post in the borough of C., but it was written and posted in another borough. In consequence of that letter, he transmitted through the post to the writer of the first a post office order for £20, which was received out of the borough. In an indictment against the writer of the first letter for false pretenses, it was held that the venue was well laid in the borough of C. In giving the opinion, Jervis, C. J., observed: "The venue was well laid. The delivery of the letter through the post in the borough, was the making of a false pretense there."

In

In Reg. v. Jones,6 money was obtained by means of a false statement of the name and eircumstances of the prisoner in a begging letter which reaches the prisoner in County B., but had been transmitted to him in a letter posted at his request in County A. Here it was held that he is liable in A. In the opinion, Alderman, B., cited R. v. Buttery, referred to by Abbott, C. J.,'in R. v. Burdett, 4 B. & A. 179 (not reported elsewhere), to show that the offense consists in obtaining the money; and observed, that here, when the party solicited put the letter containing the post office order into the post at Sunbury in Middlesex, the post master became the agent of the prisoner and the latter must thus be taken to have received it in Middlesex.. In Regina v. Cook, on an indictment for obtaining

8 2 R, S. N.Y. 677, § 53; 1 Chit. Cr.Law, (4th Amer.ed.) 191; Rex v. Buttery, mentioned by Chief Justice Abbott in The King v. Burdett, 4 B. & A. 95.

4 Chit. Crim. Law, 155; U. S. v. Davis, 2 Sum. 485. 57 Cox C. C. 100; S. C. 36 Eng. L. and Eq. 589; S. C. Dears.

642.

6 Den. B. C. C 551.

7 1 Fost. & F. 64.

money by false pretenses, which in one count was alleged to have been by sending a certain false return of fees to the commissioner of the treasury, it appearing that the return was received by them in Westminster, with a letter dated Northampton, and an affidavit sworn there; and that they, on the faith of it, drew up a "minute," which operated as an authority to the Paymaster-General to pay a certain amount to the prisoner (as compensation), at Westminster, the venue laid being Northamptonshire. The venue was sustained; for, in effect, the money was obtained by means of the minute, being a mere matter of regulation, and not a judicial proceeding. Coleridge, J., remarked (p. 66): "The letter was written and the affidavit sworn in Northamptonshire, and the jury may infer that the documents were posted there. They are material facts in the case, and one of the counts alleges the offense to have been in this, that the prisoner 'forwarded' to the commissioners a representation which was false, and which he certainly may be presumed to have 'forwarded' in Northamptonshire. There is reasonable evidence that it was so."

In Stewart v. Jessup,s referred to in the principal case, where the facts are set out, the court said: "It may be assumed, as a general proposition, that the criminal laws of a State do not bind, and cannot affect those out of the territorial limits of the State. Each State, in respect to each of the others, is an independent sovereignty, possessing ample powers, and the exclusive right to determine within its own borders, what shall be tolerated, and what prohibited; what shall be deemed innocent and what criminal; its powers being limited only by the Federal Constitution and the nature and objects of government. While each state is thus sovereign within its own limits, it cannot impose its laws upon those outside of the limits of its sovereign power. Our own Constitution has expressly fixed the boundaries of its sovereignty. And the right of punishment extends not only to persons who commit infractions of the criminal law actually within the State, but also to all persons who commit such infractions as are, in contemplation of law, within the State.10 Every person being without this State, committing or consummating an offense by an agent or means within the State, is liable to be punished by the laws thereof in the same manner as if he were present, and had commenced and had consummated the offense within the State."11

In Commonwealth v. Van Tuy1,12 the indictment was for obtaining money by false pretense. The fraud was concocted in the State of Ohio, where the representations, which were designed to render it successful, were made, but the scheme was consummated and the money obtained in Kentucky. The defendant was tried and punished in the latter State, the court holding that as the crime was not committed until the money had been obtained, not being mature and taking effect until then, the crime was, therefore, committed in Kentucky and not elsewhere, and the defendant was properly indicted and tried therefor in the county where the money was paid to him. EUGENE MCQUILLIN. St. Louis, Mo.

8 51 Ind. 413.

9 See Sec. 2, Art. 4.

10 2 R. S. 1852, p. 1, § 2.

11 See also Johns v. The 3tate, 19 Ind. 421. 12 1 Met. (Ky.) 4.

BAILMENT-FOR HIRE NEGLIGENCEQUESTION FOR JURY.

KINCHELO v. PRIEST.*

Supreme Court of Missouri, June 7, 1886.

1. Whether a bailment was for hire, or merely gra tuitous, is purely a question of fact for the jury in each particular case.

2. A gratuitous bailee must exercise the same degree of care and diligence that an ordinary prudent man would in relation to his own business affairs.

Appeal from Scotland circuit court.

Action to recover the value of notes left by plaintiff with defendant's testate for collection, and by the latter held, uncollected, until barred by the statute of limitations. Judgment for defendant, and appeal therefrom by plaintifi.

McKee and Smoot, for appellant, James H. Kinchelo.

BLACK, J., delivered the opinion of the court: The plaintiff, in 1867, before leaving this State, gave to the defendant's testate, Green, 14 notes, and took a receipt therefor, in which it is stated that the notes are to be collected and accounted for. Green died in 1882, and plaintiff filed an account in the probate court, giving a list of the notes, and stating that he did not know whether the notes had been collected; that they could have been collected, and, if not, deceased suffered them to become barred by the statute of limitations; that deceased was to have five per cent. for his services, and that the estate owed him, etc. Three of the notes, signed by Downing and others, and one small one, signed by Green, in all amounting to about $700, were found by the executor among the papers of the deceased, with credits upon the Downing notes. Some correspondence, offered in evidence, shows that, from 1867 to 1882, Green collected and remitted to the plaintiff various sums of money; and the evidence is strong to the effect that he remitted or applied all money collected. Green, in a letter dated in 1867, says Downing had promised payment in the following January. In 1881 he says Downing had promised several times to pay, and expressed some fears about the Arnold note; and in 1882, speaking of this same note, which was signed by Downing, he says he let the date slip out before he knew it, and that Mr. Downing said "a note never dies with him." The real contest is as to the barred notes.

The court, for the plaintiff, instructed the jury, that if deceased, while in the discharge of his trust, negligently permitted the statute of limitations to run against part of the notes, and by reason of said neglect the debts were lost, then the plaintiff was entitled to recover; and refused to instruct that if the notes could have been collected by resorting to legal means, and yet were al

*S. C. 1 S. W. Rep. 235.