St. Rep. 588, to the extent that it approved an indictment which omitted in the conclusion the words "upon their oath," is disapproved.

But, conceding that the conclusion is an essential part of an indictment, we are now called upon to say that the conclusion of this indictment is utterly insufficient, because the words "in the manner" are omitted therefrom. It will be noted that it reads: "And so the grand jurors aforesaid, upon their oath aforesaid, do say that the said John Gleason, him, the said Harry Nelson, then and there, by the means aforesaid, at the county aforesaid, on the day aforesaid, feloniously, willfully, premeditatedly, deliberately, on purpose, and of his malice aforethought did kill and murder, against the peace and dignity of the state." Many of the most approved forms of common-law indictments use the words "by the means aforesaid" instead of "in the form aforesaid," and, indeed, they seem preferable. 3 Chitty's Crim. Law, *751; 1 East, P. C. 347, sec. 117.

The indictment is in the full form of the common-law indictment for murder, and recites an assault, the infliction of a mortal wound, and that Nelson died of that wound; and in this part of the indictment the averments are full and technical as to time, place, manner, and all other matters essential. Having alleged all these, what possible fact is omitted when the pleader repeats: "And so the grand jurors aforesaid, upon their oath, do say that the said John Gleason, him, the said Harry Nelson, then and there, by the means aforesaid, at the county aforesaid, feloniously," etc., "did kill and murder." The words mean, and expressly indicate and state, without leaving anything for inference or surmise, the manner in which the death of the deceased was brought about. Mindful as we are of the importance of preserving every essential of a common-law indictment, we are of opinion that the words used are sufficient to make a good indictment; and the words "by the means aforesaid," referring as they do to the exact manner of the homicide, with the other words in the conclusion, are sufficient. It is passing strange, however, that the prosecuting attorneys will not follow the recognized forms and precedents. It was long ago remarked by Lord Mansfield that, while "tenderness ought always to prevail in criminal cases, so far at Jeast as to take care that a man may not suffer otherwise than by due course of law, tenderness does not require such a construction of words as would tend to render the law nugatory and ineffectual, and destroy or evade the very end of it, nor does it require of us that we should go into such nice and strained critical objections as are contrary to its meaning and spirit." 1 Chitty, Cr. Law, 170, 171.

Again, it may be said that the omission of the word "with" before the allegation "a certain pistol then and there charged with

gunpowder and leaden balls," etc., renders the indictment defective, in failing to state with what instrument the assault was made, as in State v. Furgerson, 152 Mo. 92, 53 S. W. 427. But, as was pointed out in State v. Evans, 158 Mo. 603, 59 S. W. 994, and in State v. Turlington, 102 Mo. 651, 15 S. W. 141, the use of the word "with" before the word "pistol" is not only entirely unnecessary, but would mar the strength of the allegation; while it was said in State v. Prendible that State v. Turlington, supra, should not be followed. A careful examination of the most approved precedents will demonstrate that, when the allegation is in the form used in this indictment, the word "with," before the words "a certain pistol," etc., is not only not necessary, but is not in accord with the approved forms. 1 Wharton's Precedents of Indictments and Pleas, 115, 117, 117a, 117b, 117e; Bishop's Directions and Forms, sec. 520; 3 Chitty's Cr. Law, *page 752. So that the omission of the word "with" in the connection noted was proper. This conclusion in no wise conflicts with those cases in which it was held necessary to charge that the assault was made with an ax, or a sword, or other similar instrument. In this indictment, as in the forms which it followed, it is expressly alleged further on in the indictment that "with" the leaden balls the defendant did strike and wound the deceased. 2. It is urged as error that the court improperly instructed on murder in the second degree, when there was nothing more than manslaughter in the fourth degree in the case. To this we cannot give our consent. The evidence was conflicting, but the state's evidence tended to show that defendant, smarting under the charge that he was not doing his duty, became involved in a quarrel with deceased, and that each passed the lie; that thereupon defendant went into the front room, armed himself with the revolver, and returned to the dining room, and had presented it at deceased while he was engaged waiting on a customer, and that deceased did no more than to ward off the pistol when defendant shot him. While defendant's testimony tends to show deceased was the aggressor, and had assaulted him first, an issue of fact was thus presented, and it was the duty of the court to present the law of the case in the alternative. If the jury found that deceased was not the aggressor, but had called defendant a liar, and that, incensed at the insult but without lawful provocation, defendant willfully and intentionally shot deceased in a vital part with a deadly weapon, then he was guilty of murder in the second degree. On the other hand, the court instructed the jury both on selfdefense and manslaughter, leaving to them to determine the facts. There was no error in the instructions, and they were exceeding ly favorable to defendant. Nor are they open to the criticism that they were not based on the evidence.

3. The defendant complains of certain jurors. The alleged misconduct of the juror Asher occurred, if at all, in the immediate presence of the court and defendant and his counsel, and no objection was taken to it. The court was not requested to admonish or caution the juror, and no mention was made of it until after verdict. Counsel were remiss if they observed misconduct, and failed to call the court's attention to it at the time. But, as a matter of fact, the court found there was no such misconduct. He saw the juror, heard the evidence on both sides, and his finding must settle that issue.

As to jurors Maledy and Horner, neither of them had heard any of the evidence or talked with a witness. Neither had formed or expressed an opinion, and the trial court found as a fact that their answers on their voir dire were true. The rumor that one juror on a former trial had been approached in no way disqualified the juror who had heard it. The examination of these charges against the jurors was before the trial judge, who had an opportunity to weigh the evidence, and there is no ground for finding that he exercised an unwise discretion in denying a new trial on this ground. The defendant had a fair trial, and it was peculiarly a case for a jury to determine the facts.

It is not our province to interfere with a verdict where the contention is merely that the weight of the evidence is against the verdict. We are in no position to weigh the evidence, where the evidence is conflicting, as this was.

The judgment must be and is affirmed.

BURGESS and FOX, JJ., concur.

TUFTS v. LATSHAW. (Supreme Court of Missouri, Division No. 2. Feb. 24, 1903.)

PARTNERSHIP ESTATE-ADMINISTRATOR-PERSONAL FUNDS-MINGLING FUNDS-LIABILITY-REFEREE-FINDINGS-APPEAL.

1. Where a suit is brought against the surviving partner by the administrator of the deceased partner to recover the proceeds of property belonging to the partnership estate, there having been added to such property money and property of the surviving partner, a court of equity alone has jurisdiction.

2. The finding of facts by a referee stands as a verdict of a jury.

3. On appeal from a judgment rendered on the report of a referee, an objection that the evidence fails to sustain a certain finding of fact is not available, where not made in exceptions to the referee's report.

4. Where a surviving partner continues the business of the firm, and uses its assets, until he makes an assignment to the defendant, and mixes the property with his own so that it cannot be separated nor the amount of each ascertained, the whole becomes, both in law and equity, the property of the partnership es

tate.

Appeal from circuit court, Jackson county.

Suit by Freeling Tufts, as administrator of the estate of William G. Harvey, deceased, and in charge of the partnership estate of D. W. Williams & Co., against Henry J. Latshaw, as assignee of D. W. Williams & Co. From a judgment for plaintiff, defendant appeals. Affirmed.

Prior to and at the time of the death of W. G. Harvey, which occurred on the 18th day of December, 1889, he and one D. W. Williams were partners, doing business under the firm name and style of D. W. Williams & Co. Harvey died, as before stated, and Williams qualified as surviving partner, and continued the business as before in the firm name. He bought and sold goods and conducted the business as it had been conducted before Harvey's death. In September, 1890, a creditor of the copartnership estate filed in the probate court a motion to require Williams to give a new bond. This motion was heard on the 22d day of September, 1890, and was sustained by the court; and on the same day Williams made an assignment to the defendant, Latshaw, and delivered to him possession of all the property of D. W. Williams & Co., consisting of a stock of merchandise, notes, and accounts, amounting in the aggregate to $71,316.37. The merchandise, of which the defendant took possession, was appraised at $39,157.84. This consisted largely of goods that were on hand at the time of Harvey's death. Williams testified that he had, subsequent to Harvey's death, purchased, with the proceeds of goods sold, other goods, and also that he had borrowed money with which he had purchased goods. However, it was conclusively shown by the inventories made by Williams, when he qualified as surviving partner, and by Latshaw, when the deed of assignment was executed, that practically all of the merchandise on hand at the time Williams made the assignment was the same property that was on hand at the time of Harvey's death. The notes and accounts were what remained uncollected of the notes and accounts due the firm at the time of Harvey's death. Williams, subsequent to Harvey's death, speculated in whisky, buying the same in bond. For the purpose of carrying on this speculation, he borrowed money from various parties, and hypothecated warehouse receipts for whisky to secure the same. For the purpose of protecting these individual creditors he made the assignment, and delivered to defendant the property of D. W. Williams & Co., which was in his possession as such surviving partner. The papers in this case, including the bill of exceptions, as also the papers in the assignment and the papers in the copartnership estate, cannot be found, and there is therefore no means whatever of settling any controverted questions as to the facts. The cause seems to have been referred to Hon. F. P. Sebree, as referee, who, after hearing

the evidence, submitted to the court his report, as follows:

"To the Honorable the Circuit Court of Jackson County, Missouri: This cause having been referred to me by the said court, with directions to hear and decide the issues involved therein, I make and submit the following report. After being duly sworn as referee, I proceeded to hear and take the evidence, and herewith return the

same.

"Finding of Facts.

"I find the facts to be that on and prior to the 18th day of May, 1889, David W. Williams and William G. Harvey were partners, engaged in the wholesale liquor business at Kansas City, Mo., under the firm name of D. W. Williams & Co. On said date said William G. Harvey died intestate, and the plaintiff. Freeling Tufts, thereupon was appointed, and is yet, the administrator of the individual estate of the said Harvey. The surviving partner of the said firm, David W. Williams, on or about the 23d day of May, 1889, qualified as the administrator of the said partnership estate, and as such took charge of the assets thereof, which at the time were appraised at $149,062.97; the stock of merchandise on hand, furniture, and fixtures being appraised at $54,658.58, and the accounts and bills receivable being appraised at $94,365.59. The liabilities of the firm amounted to $87,062.18. David W. Williams continued to conduct the business at the same place and under the same name of D. W. Williams & Co., selling and disposing of goods, buying goods, and replenishing the said stock with the proceeds of collections of said accounts and bills, and from sales of goods and from money borrowed, and collecting the accounts and bills receivable, and making payments on the debts of the firm, in the usual course of the business, as it was conducted by the firm before the death of the said Harvey, until the 22d day of September, 1890, when he made a general assignment for the benefit of his creditors to the defendant, Latshaw, which is hereafter referred to.

"The stock of goods, furniture, and fixtures of the partnership estate of D. W. Williams & Co. were of the value put upon them by the appraisers, to wit........$54,658 58 And D. W. Williams collected from the notes and accounts the sum of

14,154 83

$68,813 41

"On the 12th day of September, 1890, one of the creditors of the estate of D. W. Williams & Co. gave notice to D. W. Williams, the administrator of the partnership estate, that it would, on the 22d day of September, 1890, or as soon thereafter as it could be heard, apply to the probate court of Jackson county, Mo., for an order on him to give a new bond, as such administrator, for the

reason that the sureties on his bond were about to become nonresidents of Missouri, that they had disposed of and removed their property beyond the jurisdiction of the court, and were insufficient. On the 21st day of September, 1890, the application for a new bond was heard by the probate court, and the said court, found on application to me, made an order on said D. W. Williams to give a new bond in the sum of $50,000 within five days. On the 30th of September, 1890, the probate court found that said Williams had failed to give such bond, and thereupon revoked his letters of administration, and ordered that he have no further authority over the assets of the estate, and appointed the plaintiff the administrator of the said estate, and ordered the estate into his hands. On the 22d day of September, 1890, the day set in the notice for the applying for the order for a new bond, the said D. W. Williams made the deed of assignment to the defendant, Latshaw, in which was included the said stock of goods then on hand, the book accounts and bills receivable, and the interest of said D. W. Williams in certain real estate. The defendant, H. J. Latshaw, at once qualified as assignee, and took the assigned property into his possession, and had the same invoiced and appraised. The appraisement shows that the assigned estate was of the value of $71,361.37, made up of the following items, viz.:

Total merchandise, accts., etc... $71,361 37

"The merchandise assigned to defendant, Latshaw, consisted partly of goods which were on hand at the time of the death of William G. Harvey, partly of the goods purchased with the proceeds of the sales of goods which were on hand at the time of his death, and partly of goods purchased with money borrowed by Williams after the death of said Harvey. But there was no separate account kept of these several lots of goods nor of the sales therefrom, and it is impossible to separate or distinguish the goods of the several lots, or the proceeds of sales that were made from them. The accounts and notes that were assigned to defendant, Latshaw, consist partly of accounts and notes in the conduct of the business after the death of said Harvey, and the proceeds of accounts and notes collected by said Latshaw were derived from both classes of said notes and accounts, but the amount of the collections from each class cannot be determined from the evidence. From the sales of merchandise, furniture and fixtures, and collection of notes and accounts the defendant, Latshaw, received and had on hand,

"This is a suit in equity, whereby it is sought by the plaintiff, as administrator of the partnership estate of D. W. Williams & Co., to obtain a judgment or decree against the defendant, who is assignee of D. W. Williams, to pay over to the plaintiff all the funds in his possession which he holds as such assignee. The evidence shows, without roon for controversy, that the funds now in the assignee's hands are the proceeds of the old stock of the partnership estate of D. W. Williams & Co., with additions added thereto at times by Williams, which were purchased by the proceeds of sales from the old stock and from collections from the old accounts, and from money furnished by Williams from his individual resources; but, as no separate showing was or could be made of that part was purchased by Williams' individual money, it will have to be held that all those funds in the assignee's hands were proceeds of the old partnership estate of D. W. Williams & Co. The evidence also shows that the partnership estate is indebted to the National Bank of Commerce in the sum of $20,274.37, with interest thereon from August 2, 1889, amounting to between $27,000 and $30,000, and that such estate is insolvent, having no property whatever, unless the funds in the assignee's hands belong to it. It is also clear that D. W. Williams received as surviving partner, in merchandise and fixtures, $54,658.58, and that he collected on the accounts $14,154.83, making a total of $68,813.41, and that he paid the debts of the partnership estate to the amount of $66,787.81. The evidence also satisfactorily proves that D. W. Williams is insolvent, and that his bond as administrator is insufficient.

"Such being the facts, the plaintiff would seem to be entitled to recover, unless one of the following defenses urged by the defendant's counsel should defeat such recovery:

"(1) The first contention of the defendant is that this court has no jurisdiction of the cause of action, as by the law of this state all matters relating to the administration of estates of deceased persons, and the recovery of property belonging to them, belong exclusively to the probate courts. From the finding of facts it will be seen that the money in the hands of the defendant is the proceeds of property belonging to the old partnership estate of Williams & Harvey, there having from time to time been added to such property money and property of D. W. Williams. But the amounts added by Williams were not kept separate, and there is no evidence which tends to distinguish or separate the one from the other. In this state of affairs a court of equity alone has the jurisdiction and power to search out and follow up the trust fund, and direct what disposition shall be made of it; and it has always been held in this state that the probate courts have no such equitable powers, the last case being that of Estate of Glover, 127 Mo. 153, 29 S. W. 982. I conclude, therefore, that the court has jurisdiction of the cause of action.

"(2) The defendant's counsel also takes the position in their brief that, as D. W. Williams had paid or adjusted the debts of the old firm of Williams & Harvey to an amount exceeding by at least $10,000 the value of the estate that came into his hands as administrator thereof, therefore he had the right to use the property of the old estate in making this assignment, and that the assignment ought for that reason to legally vest the property in the defendant. The position of counsel is founded, first, on a misconception of the facts. It is true that Williams testified that he received merchandise and fixtures to the value of $54,858.58, and that he collected on accounts $14,154.83, making a total of $68,813.41, and that he paid on the debts of the estate an amount exceeding this sum by more than $10,000; or, in other words, that he paid on the debts more than $78,813.41. While Williams is no doubt honest in his testimony, still his mistake is so evident that there can be no question about it, for the debts of the estate amounted to $87,062.18, and $20,274.37 thereof have never been paid; consequently he could have paid but $66,787.81, being $2,025.60 less than the value of the merchandise and the amount collected by him on the accounts. Furthermore, while Williams swears that he collected on the notes and accounts only about $14,154.83, the evidence fails to show exactly how much more was collected on them by the defendant after they came into his hands, but it does appear that from such collections defendant received at least $4,345. Therefore, if the position of the counsel were the correct one as to the law, the defense now being considered would not prevent a recovery of the $6,370.60, as the value of merchandise and collections by Williams and defendant amounted to this and above what Williams paid out on the

debts. But I cannot agree with counsel in their position as to the law. When Williams took charge of this estate as surviving partner there were debts against the estate of $87,062.18. These debts were entitled to be allowed, and paid pro rata, so far as the property of the estate would pay them. But it appears that the only debts that were allowed against the estate, amounting to more than $20,000, were the only ones upon which no payments were made, and they remain wholly unpaid. An administrator has no right to pay in full a part of the debts and leave other debts entirely unpaid, and then, with the property of the estate still in his possession, claim that, as he has paid out as much as the property was worth, the property still on hand does not belong to the estate. Such a doctrine as this would virtually place with the administrator the power to prefer creditors, and pay some in full and leave others wholly unpaid. The duty of the administrator is to collect and preserve the estate, and pay it out on the demands allowed pro rata, under orders of the probate court; and when he assumes to do otherwise, until all the debts are given their share, the property in his hands is subject to be used in the payment of such debts, even if he has expended the full value or more of the property of the estate in paying the other debts in full. So, in this case, as the defendant stands in the shoes of Williams, having in charge this trust fund, as much within the reach of the court as it would be if Williams himself held it, it seems to me that justice demands that the court take it and replace it in the hands of the administrator of the partnership estate, to be by him administered according to law. My finding is that plaintiff is entitled to a judgment that the defendant pay over to him the said sum of $11,214.41, less proper allowances to the assignee for his unpaid services and expenses.

"Frank P. Sebree, Referee."

Thereafter, and in due time, the defendant filed his exceptions to said report, which, omitting the caption, were as follows: "Now comes H. J. Latshaw, assignee, defendant, and files his exceptions to the report of Frank Sebree, Esq., referee, both as to the findings of fact and the conclusions of law reported by said referee, and defendant excepts to said report on the following grounds, to wit: First. The findings of the referee are against the evidence and the weight of the evidence. Second. The findings of the referee are against the facts proven in evidence, and his conclusions are against the law. Third. Because the referee found the fact to be that D. W. Williams, surviving partner of the estate of which plaintiff is

now in charge, had not paid out on the obligations of said partnership as much as the combined value of its property and the amount collected from debts due said estate; whereas, the undisputed testimony shows that said Williams had in truth paid out on partnership debts some $10,000 or more in excess of the total value of said estate. Fourth. Because the referee fails in his report to state any account between the partnership estate of which plaintiff is administrator, and to make any finding as to how much, if anything, is due from D. W. Williams to said partnership estate. Fifth. Because the referee erred in admitting in evidence, against the objections of defendant, the purported list of liabilities of said partnership attached to the original inventory of said estate, and in basing his finding of the amount of partnership liabilities on said incompetent and inadmissible evidence. Sixth. Because the referee erred in his conclusion of law that it was necessary for an accounting to be had in the probate court between plaintiff and D. W. Williams, and an indebtedness by the latter to the estate there found and adjudged, as a condition precedent to the right of plaintiff to maintain this action in the circuit court. Seventh. Because the referee erred in his conclusion of law that it was immaterial even if Williams had paid out the full value of the estate to its creditors, and more besides of his own means, and in holding that plaintiff is entitled to recover the entire fund in controversy, regardless of whether there is any indebtedness from Williams to the estate, and regardless of how small a proportion of the fund may be the proceeds of partnership property, or whether the estate has been fully compensated by Williams for such property. Wherefore, defendant prays that his exceptions to said report be sustained, that the findings and conclusions of the referee be set aside, and that on the evidence and record findings be entered for defendant, and plaintiff's petition dismissed."

Thereafter, upon the hearing of said exceptions, the same were by the court overruled, and to the action of the court in overruling same defendant then and there duly excepted at the time. And thereupon the court rendered the following judgment in said cause: "Now, at this day, come said parties by their respective attorneys, the said plaintiff by C. S. Owsley and Elijah Robinson, his attorneys, and the said defendant by R. E. Ball and C. H. Nearing, his attorneys, and the exceptions heretofore filed by the defendant herein to the report of the referee heretofore filed in this cause coming on to be heard, and being submitted to the court, and by the court duly heard and considered, are by the court overruled, and the said report of the referee is by the court approved and confirmed. It is therefore ordered, adjudged, and decreed by the court that the said defendant, as assignee of D.