made by the pleadings on the one hand, charging the instrument to be a forgery, and void, not the act and deed of the defendant, and on the other affirmatively alleging that the mortgage sued on was, as executed by the defendant, valid. Such being the state of the pleadings, under the authorities cited, the instrument having been shown to be void, its identity changed by reason of its alteration in a material part, no action could be maintained upon it. The question discussed necessarily disposes of all of the assignments presented. We think there is no error in the judgement, and that it should be affirmed.

of appeals examined, their opinion adopted, STAYTON, C. J. Report of the commission and the judgment affirmed.

PAYNE v. COMMONWEALTH.
(Court of Appeals of Kentucky. June 15, 1889.)
D. R. CARR, Judge.
Appeal from circuit court, Barren county;

"Not to be officially reported."
Indictment against John Payne for at-
tempted rape. Accused was convicted and
appeals.

W. H. Botts, for appellant. P. W. Hardin, Atty. Gen., for the Commonwealth.

while it was in his possession, even if the conduct of appellant Lemon was not sufficient, after it was brought to his knowledge that the alteration had been made, to amount to an indorsement or ratification of the alteration. Discussing the question of a fraudulent alteration of an instrument in Wood v. Steele, 6 Wall. 81, it is said: “As far back as the reign of Edward III it was a rule of the common law that a rasure in a deed avoids it." In 1 Smith, Lead. Cas. supra, the subject is elaborately examined with reference to commercial paper, and the rule applied to that class of securities as well as to deeds. In English and American jurisprudence it is now well settled that the material alteration, in any commercial paper, without the consent of the party charged, extinguishes his liability. The reason is obvious. The agreement is no longer the one into which the defendant entered. Its identity is changed. Another is substituted, without his consent, and by one who had no authority from him. To prevent and punish such tampering, the law does not permit the plaintiff to fall back upon the contract as it originally was, but its stern and wise policy annuls it, as to the party sought to be wronged. With us the doctrine is recognized that "any alteration which makes the instrument speak a different language, in effect, from that which it originally expressed, destroys its identity and its legal virtue, for it is no longer the agreement which the party undertook to perform." Miller v. Alexander, 13 Tex. 505; Bogarth v. Breedlove, 39 Tex. 561. In Park v. Glover, 23 Tex. 469, it is held that the principle is established by the authorities that an instrument fraudulently altered in a material part is thereby rendered void, and will not support an action. Applying the doctrine announced in the cases above cited to this case, the alteration rendered the instrument void. The evidence in the record before us, we think, was sufficient to support the conclusion that the mortgage was in a material respect altered subsequent to its execution and delivery by appellee to appellants, and that it was done without his knowledge or consent; that it was so altered while in the possession of appellants' agent, who was shown to be authorized by them to write, accept, and retain possession of the same; that appellants, although advised of this alteration by appellee, claimed under the mortgage, and acted upon it, in its altered state, assenting to and recognizing the acts of their agent in connection with it; that it is also shown that the 1. The instruction asked by the state, and alteration operated to change its identity, given, as to the necessity of receiving with and render it void. The plaintiff's action in caution the verbal admissions of defendant, this case was upon the mortgage in its al- was proper enough as far as it went; but it tered condition, and which was shown to be only asserted the familiar principle with revoid; and, if the effect of the alteration was spect to all verbal admissions, and the caunot to invalidate that part of it relating to the tion which should attend testimony touchengine and appliances, there could be no re- ing their having been made. 1 Greenl. Ev. covery, for the reason that the suit was not §§ 45, 97, 200. The first instruction, howso brought. There were no allegations seek-ever, asked by the defendant, and refused by ing to recover upon the mortgage as original- the court, was much broader in its scope, ly executed. But the issue was directly and was different in its meaning. It related

BENNETT, J. The proof in this case fails in toto to establish the charge of attempted rape by the appellant, who is a mere boy, upon the little girl, May Nunn. The most that can be said, from the record before us, is that he committed an assault upon the little girl. Her own testimony acquits him of any attempt to outrage her. It is probable, as he was in the habit of playing with the girl, that he only intended to engage in a frolic with her. Though his conduct was very rude, for which he ought to have been thrashed, yet it fails in toto to establish the charge of attempted rape. The judgment is reversed, with directions to grant a new trial.

STATE v. WALKER.

(Supreme Court of Missouri. Nov. 12, 1888.) Indictment against William Walker for murder. For majority opinion, see 9 S. W.

Rep. 646.

SHERWOOD, J., (dissenting.) I am called upon to say why I dissent from the conclusions reached in the majority opinion.. These are my reasons:

the members of the legal profession of this state to surprises from this court in its enunciation of new rules and principles of criminal law, they will doubtless be startled by this, its latest utterance. The case of State v. Lamb, 28 Mo. 218, has been cited as upholding the view that the distinction to be taken between judicial and extrajudicial confessions was a mere abstraction, because a case will rarely arise for its application. However this may be, there have arisen in this court three cases already where the distinction was maintained by this court, and the judgment of the lower courts reversed because of their failure to maintain it. Lamb's Case has been severely and justly criticised by the text-writers as inconsistent with fundamental principles, in that it does give recognition to the broad difference between the probative effect of the different kinds of confessions. But in that case the remark made was made arguendo, and in one sense the difference between the two kinds of confessions was an abstraction; that is, so far as the sufficiency of the evidence to support a conviction was concerned, as there was abundant evidence to make up for any probative deficiency in the extrajudicial confessions therein. And that case does not discuss the point as to the propriety of refusing an in

be given to such confessions; and, if it did, and stated anything contrary of what has been already asserted, it would be met and refuted by Robinson's Case and Brooks' Case, supra.

to the admissions made by the defendant as to the corpus delicti, and his connection therewith. These admissions, if made, were mere extrajudicial confessions, and that such confessions are utterly insufficient to warrant a conviction has been repeatedly held by this court. Upon this ground it was that the case of Robinson v. State, 12 Mo. 598, was reversed; upon this sole ground it was that in State v. Scott, 39 Mo. 424, the judgment was reversed; and upon this sole ground the judgment in the case of State v. German, 54 Mo. 526, was reversed. In State v. Patterson, 73 Mo. 695, this doctrine was distinctly recognized. In Robinson v. State, supra, one of the grounds of reversal was the refusal of the court to instruct, as asked by the defendant, that an extrajudicial confession was insufficient to convict, unless corroborated. And it was upon this sole ground that, though such an instruction was proper, yet, because it was not asked, the failure of the court to give it was sustained in State v. Brooks, 92 Mo. 542, 5 S. W. Rep. 257, 330. There is therefore no foundation for the assertion made in the majority opinion that "the prior cases in this court do not assert that such an instruction should be given in such cases." So that it will readily be seen that if Robinson's Case still stands for law, and if Brooks' Case still struction relative to the force and effect to stands for law, the foregoing opinion is not law; neither indeed can be. In Brooks' Case the judgment was affirmed because of the failure to ask the proper instruction on the point in question, but the propriety of the instruction was conceded. Here not on- 2. Again, the point insisted upon by the ly is the propriety of the instruction denied, defendant was not that confessions obtained but the judgment is affirmed, notwithstand-by artifice, cunning, falsehood, and deception ing the failure to give what is conceded in on the part of those obtaining them would Brooks' Case and in Robinson's Case to be a render such confessions inadmissible, as is correct instruction. Does the present case assumed in the majority opinion; but the overrule those cases? If not, why not? In the point was made, and distinctly made, that majority opinion it is gravely asserted: "But the position of the witness Joseph Newton, where the corpus delicti is fully and com- who testified to the alleged confession, was pletely established by the evidence, outside tantamount to that of an accomplice to this of the confessions, it is not error to refuse extent at least; that a cautionary instruction to instruct that it devolves upon the state to should have been given respecting the weight show by extraneous evidence that the alleged to be attached to his testimony. This posicrime had been committed by some one." "tion of the defendant is abundantly sustained The condemnation of the doctrine thus de- by authority, as I will now proceed to show: clared has been sufficiently shown by the Com. v. Downing, 4 Gray, 29; Anon., 17 cases cited; but let us look at it apart from Abb. Pr. 48; Preuit v. People, 5 Neb. 377; precedent and the same result is inevitable. Heldt v. State, 20 Neb. 492, 30 N. W. Rep. The argument is that, if the evidence is am- 626; Whart. Crim. Ev. § 440. In Com. v. ply sufficient, the propriety of refusing in- Downing, supra, the witness King purchased structions based thereon thereby becomes im- intoxicating liquor, sold contrary to law, for material. With equal propriety an appellate the express purpose of convicting the seller, court might gravely say that because the evi- and, while the court held that this did not dence respecting a homicide is confessedly make him an accomplice, and thus render his sufficient to show circumstances of delibera- testimony inadmissible, yet the court used tion, premeditation, and malice aforethought, this language: "We think he [meaning the therefore an instruction defining those terms trial judge] might well have instructed the was unnecessary. In short, this court places jury that such testimony was to be received itself on record as in effect declaring that, if with the greatest caution." In Anon., suthe evidence on a disputed fact is full and pra, where the witness was hired to watch complete, strong and convincing, this does and detect a wife suspected of adultery, it away with any necessity for an instruction was held that this did not authorize the abbased upon such fact. Accustomed as are solute rejection of such witness' testimony,

attorneys, used this language in addressing the jury: "The defense put in no evidence except to contradict Mr. Green by Mr. Allen. Why are not the other defendants here to tell you all about this in behalf of this defendant? They know what occurred in the house, and they might have been put on the witness stand to testify in this case, and tell you what took place in the house." This language conveys the idea, and was intended to convey the idea that the defendant had it in his power to compel each of his co-defendants, nolens volens, to testify in his behalf. The case of State v. Chyo Chiagk, 4 S. W. Rep. 704, has been cited in the majority opinion as sustaining these remarks of the prosecuting attorney, but it does nothing of the kind, as will fendants were jointly indicted with the defendant, he being separately tried, and the court refused to permit his co-defendants, they being willing so to do, to testify in his behalf; and, in commenting on such ruling, it was held erroneous. This court, in discussing that ruling, and the section upon which it was supposed to be based, said: "Taking this section in its literal acceptation, it must be confessed that it only applies to the person on trial or examination." Such a person,'

but the court declared that it "ought to be received with great caution, and scrupulously and minutely scrutinized." In Heldt v. State, supra, the court uses this pointed language: "A man who will deliberately ingratiate himself into the confidence of another for the purpose of betraying that confidence, and while, with words of friendship upon his lips, he is seeking by every means in his power to obtain an admission which can be tortured into a confession of guilt, which he may blazon to the world as a means to accomplish the downfall of one for whom he professes great friendship, cannot be possessed of a very high sense of honor or of moral obligation. Hence the law looks with suspicion on the testimony of such witnesses, and the jury should be specially instructed that in weigh-be presently shown. In that case the co-deing their testimony greater care is to be exercised than in the case of witnesses wholly disinterested." Wharton, in his work on Criminal Evidence, (9th Ed. § 440,) approves this doctrine. Error was committed in permitting the prosecuting attorney, in his opening argument, to comment upon the failure of the defendant to testify as to what his purposes were in going to the house of Edens. He had testified that he was there for no felonious purpose. It may be conceded that it was competent for the state to have interrogated him as to what his purposes were; but it does not thence follow that the prosecuting attorney, failing in his duty properly to crossexamine the defendant, and thereby elicit the whole truth from him, could afterwards take advantage of his own wrong, and impute to the defendant the fault of not answering fully, when no opportunity was afforded him of doing so. Common fairness forbids resort to such a course. It must be obvious that, if the statute is construed as in this instance, the privilege which the statute is supposed to confer on a defendant to testify in his own behalf will very frequently be converted into a trap for the unwary, and enable the prosecuting attorney to forbear to crossexamine the defendant, and then by some covert and damaging insinuation to do more than he could do by the most skillful cross-ever supposed right the defendant may have examination.

STATE v. MATTHEWS.

(Supreme Court of Missouri. Dec. 20, 1888.) Indictment against Wiley Matthews, for murder. For majority opinion see 10 S. W. Rep. 144.

SHERWOOD, J., (dissenting.) I shall confine my dissent herein to a single point. It is this: Section 1918, Rev. St., provides: "No person shall be incompetent to testify as a witness in any criminal cause or prosecution by reason of being the person on trial or examination: * * * provided, that no person on trial or examination * * * shall be required to testify, but any such person may, at the option of the defendant, testify in his behalf, or on behalf of a co-defendant." As shown by the majority opinion, Mr. Hammond, one of the prosecuting

i. e., on trial or examination,' may, at the option of the defendant, testify in his behalf or on behalf of a co-defendant.' Taken as it reads, this section would not only bear the meaning just attributed to it, but would allow a defendant on trial or examination' to decide whether his co-defendant should testify in his behalf or not, which the legislature evidently did not mean." And yet, in the very teeth of this plainly-worded construction,—a construction of the statute necessary to the ruling which immediately followed; a construction so obvious that it commanded the assent of four of the members of this court,-it is now gravely asserted that this court sanctioned the view and laid down the law as declared by the prosecuting attorney, that it lay in the power of the defendant to compel such testimony on the part of his co-defendants. What

had to summon his co-defendants to testify for him, his right and his power stopped just at that point, or else neither the familiar maxim which forbids any one to be compelled to criminate himself, nor the constitutional to a co-defendant in a criminal cause when prohibition of similar import, is of any avail called upon to testify to a matter concerning which he is yet to be tried. So sedulous have the authorities been touching this point that an ordinary witness-one not charged with any crime-will not be compelled to testify where his testimony might form a link in the chain of testimony which might lead to his conviction of a crime. Kelley, Crim. Law & Pr. § 148, 358, and cases cited. And the authorities show that it is for the witness to judge whether his answer will disclose a fact constituting a material link, etc. Now, if this is true of an ordinary witness, then, a fortiori, is it true of a co-defendant jointly

indicted and summoned to testify. If the re- | In the majority opinion it is stated that "the marks of the prosecuting attorney do not refer instructions given in this case are substanto and mean the compulsory power of the de- tially the same as those given in the case of fendant to bring the witness on the stand and State v. William Walker." I do not concur compel him to testify, then they are mean- in this statement, as a comparison of the iningless; but they are not meaningless, and structions in these cases will show that such indicate neither more nor less than what I statement is unfounded. For instance, in have said concerning them. The right to the William Walker Case the instructions desummon a co-defendant to testify is one fined "deliberation," and then submitted to thing; but the right to compel him, when the jury the question whether or not delibersummoned, to "tell what took place in the ation existed under a proper instruction; in house," is another and very different thing. this case the jury were told that "there is no It involves, of necessity, on the part of the evidence in this case to show that defendant defendant, the idea of compulsory power to acted under the influence of such violent pasbring about such a result, and without such a sion aroused by any cause or provocation." meaning attached to them, the words used This assumes that the defendant did act,— would have been of no advantage to the the very point in issue. Again, in the Willprosecuting attorney, and would have never iam Walker Case the jury were instructed been uttered by him in his eagerness to secure "that in considering the testimony of accomthe defendant's conviction. More or less of plices against defendant you should consider confusion appears to have reigned in the and examine it with great caution and scru. mind of the learned judge when discussing tiny, and the testimony of such witnesses the point in hand, for he says: "When two should not be sufficient to warrant a convicco-defendants are on trial at the same time tion in a case of murder unless the same is it is optional with each of them whether he corroborated by other witnesses as to facts will go upon the stand and testify in behalf and circumstances tending to prove the deof himself and his co-defendant, and neither fendant guilty. * * *"" In this case the of them can require the other to so testify." jury were told that, "while the testimony of If "optional with each of them," it is difficult accomplices * * * is admissible on beto see where the compulsion lies; but if there half of the state, yet the evidence of such acis no such compulsion, as is intimated in the complices, * * * unless corroborated, latter clause of the sentence quoted, that * * *ought to be considered by you with "neither can require the other to so testify," great caution and scrutiny. And you ought then what becomes of the remarks of the pros- to be fully satisfied of its truth before you ecuting attorney, and where do they find any should convict on such testimony support? As already seen, they cannot by uncorroborated. * * *"' Two instrucany amount of ingenious gloss be "limited" tions could not be drawn more contradictory. so as to confine them to the mere right of the In the William Walker Case the jury are told defendant "to have his co-defendant not on not to convict on the uncorroborated testitrial called to testify." Such an assumption mony of accomplices. In this case they are is made at the expense of the record, and the clearly authorized by the instruction under plain meaning of the words employed; and consideration to convict without such corrobothe remarks of the prosecuting attorney were ration. I cannot subscribe to such doctrine, also an assumption that the co-defendant, if because it is not supported by principle or by summoned, would have testified. What au- authority; and I still adhere to the opinion I thority had he for such assumption? It is expressed in State v. Chyo Chiagk, 92 Mo. unnecessary to comment on the damage these 417, 4 S. W. Rep. 704, that the jury should remarks may have done the defendant, as be flatly instructed not to convict the accused that much is conceded by the argument of the on the uncorroborated testimony of an acmajority, if the remarks were improper. complice. For authorities in support of this I therefore dissent from the conclusions position, see cases cited in that case. reached. For further reasons for my dissent, see the opinion filed by me in the case of State v. William Walker, ante, 1133.

STATE . MATTHEWS.

(Supreme Court of Missouri. Nov. 26, 1888.) Indictment against John Matthews for murder. For majority opinion, see 10 S. W. Rep. 30.

WITTER v. SMITH et al.

(Supreme Court of Texas. May 28, 1889.) Appeal from district court, Frio county. W. T. Merriwether, for appellant.

HENRY, J. This suit was brought by appellees to recover the value of a number of horses alleged to be the property of one of the plaintiffs when converted to his own use SHERWOOD, J. (dissenting.) For the rea- by the defendant. The cause was tried withsons stated under the first head in my dis-out a jury, and judgment rendered for plainsenting opinion in the case of State v. Will- tiffs. The assignments of error raise only iam Walker, ante, 1133, I dissent in this case. questions of fact. We are not able to say that Nor can I otherwise concur in the majority the judgment is unsupported by the evidence, opinion, for the following additional reasons: and it is therefore affirmed.

END OF VOLUME 11.

INDEX.

NOTE. A star (*) indicates that the case referred to is annotated

4. A judgment for plaintiff in ejectment, without possession taken under it, or some act making defendant's possession subordinate to plaintiff's title, will not stop the running of the statute of limitations, and the mere fact that defendant dismisses his appeal from the judgment does not amount to an abandonment of all claims adverse to the land.-Mabary v. Dollarhide, (Mo.) 11 S. W. 611.

5. But actual dispossession of defendant is not necessary to bar the running of the statute, and an agreement that defendant delivers possession (1137)