nesee relating to indictments. In Cordell v. State, 22 Ind. 1, the indictment charged that the defendant did kill and murder the deceased by cutting, stabbing and mortally wounding him, but omitted the averment that the deceased died of the wounds so inflicted; the court said: "We think the indictment sufficient under the code. It shows the death of the assaulted individual; the word murdered ex vi termini imports death." In Pennsylvania it is declared by statute that it shall not be necessary to set forth the manner in which or the neans by which the death of the deceased was caused, but that it shall be sufficient to charge that the defendant did feloniously, wilfully and of his malice aforethought kill and murder the deceased. Rev. Acts 1860, p. 435.

Our statute provides that no indictment shall be deemed invalid, nor the judgment thereon arrested. "for want of the averment of any matter not necessary to be proved, nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits." Wag. Stat. 1090, §27. The section in which the foregoing provision occurs enumerates various trivial and formal defects, and concludes with the clause quoted. In the case of State v. Pemberton, 30 Mo. 376 this court in construing this section held that the concluding clause should be limited in its application to imperfections of the class or character previously enumerated. The court said: "If the design of our legislature had been to change the entire system of criminal pleading, they undoubtedly would have supplied a substitute for the one abolished. They have done so in civil proceeding, but in criminal proceedings changes, when made, have been specific. The ancient forms of proceeding have been retained with specific modifications; and it is only from the clause we are now called upon to construe that any inference can be drawn of a design on the part of the legislature to abolish the entire system of criminal pleading. To give so liberal and latitudinous a construction to this clause would undoubtedly destroy many, if not all the forms which have been hitherto observed." And the court declined to construe the statute.

"It is indispensably necessary," says Mr. Wharton, "to state that the death ensued in consequence of the act of the prisoner." Whart. Crim. Law 7th ed. §285; State v. Wimberly, 3 McCord, 190, and it is clearly inadmissable to allege simply a legal conclusion. It has been decided that it is no longer necessary in this State to describe the wound or to state on what particular part of the body the wound was inflicted. State v. Edmundson, 64 Mo, 398. But it is necessary under our statute to allege the substantive facts necessary to be proved. It is necessary, therefore, in a case like the present to allege an assault, and the nature thereof, a mortal wounding of the deceased, and that the deceased died of such wounds within a year and a day. These facts being properly stated the legal conclusion therefrom may then be stated that the defendant, did kill and murder the deceased. Nothing short of this will. in our judgment, secure to the defendant his constitutional right to

be informed of the nature and cause of accusation." In the case of People v. Jacinto Aro, 6 Cal. 207, the indictment charged that the defendant did kill and murder the deceased with a Colt's pistol and a dirk knife, but it contained no description of the offense nor statement that the deceased came to his death by the wounds inflicted. The court said: "Murder is a conclusion drawn by the law from certain facts, and in order to determine whether it has been committed, it is necessary that the facts should be stated with convenient certainty, for this purpose the charge must contain a certain description of the crime of which the defendant is accused, and a statement of the facts by which it is constituted, so as to identify the accusation, lest the grand jury should find a bill for one offense, and the defendant be put on his trial in chief for another. In this particular at least it may be safely said that our statute has not altered the common law, and no one, I apprehend, would maintain that under the old system of practice either in England or the United States, the allegation of a legal conclusion, instead of the facts which are the predicate of the conclusion ever has been held sufficient" and the indictment was held to be defective. provisions of the criminal practice act of California at a late period, however, were held to authorize a departure from the law thus laid down. People v. Sandford, 43 Cal. 29. But this fact does not impair the force of the reasoning in the case cited. There is a growing disposition on the part of the courts to discourage useless formality in pleadings in criminal as well as civil proceedings, but care should be taken not to dispense with matters of substance under the guise of discarding mere matters of form. Vide State v. Sides, 64 Mo. 383; State v. Lakey, 65 Mo. 217; State v. Steeley, 65 Mo. 218; State v. Mayfield, 66 Mo. 125.

The

We are of opinion, therefore, that the second, third and fourth counts are defective. The first and fifth counts, however, are good. And under the rule which obtains in this State, when there are several counts charging the same offense, one good count will sustain a general verdict of guilty. State v. Jennings, 18 Mo. 435; State v. McCue, 39 Mo. 112; State v. Pitts, 58 Mo. 556; State v. Baker, 63 N. C. 276.

It appears from the evidence that John and Joseph Blan, were half brothers of Mrs. Warren, the wife of the deceased. John Blan and the deceased had quarreled in the town of Alton, on the day of the homicide. John and Joseph Blan returned to the house of the deceased about seven o'clock in the evening. The deceased returned about an half hour later and finding John there, said: "I didn't think you would be caught here" and drew a revolver, but so far as the record shows did not attempt to use it, John ran off and Joseph remained as he states about five minutes when he left also. About ten minutes after Joseph left, John came suddenly upon the deceased from behind while he was sitting in a chair in front of and near the corner of his cabin, and struck him a heavy blow upon the head with a club, Warren fell forward upon his kness. He arose exclaiming, "My God! children I am killed" and after walk

ing a few feet fell again. After his wounds were dressed he went to bed, and about an hour later the family retired for the night. After striking the deceased with a club, the defendant went to the house of a neighbor, two miles distant, and borrowed a loaded doubled barreled shot gun. The testimony strongly tends to show that he then went to his own house which was near by, left Joseph there and went immediately to the house of the deceased, entered the cabin while all were asleep, and discharged a heavy load of shot in the face of the deceased. The family were aroused by the report of the gun and Elizah Warren was found to be dead.

Joseph Blan who was a witness for the defendand testified on his cross examination to certain angry words uttered by the defendant to the deceased, in the quarrel at Alton, and two witnesses were called by the State to contradict, Mrs. Blan, the mother of the defendant and a witness for him as to certain immaterial and irrelevant statements made by her in relation to that homicide-all this testimony was admitted without the slightest objection from the defendant or his counsel, and its admission was not even made a ground of complaint in the motion for a new trial. We are now asked to reverse the judgment in this case because of the admission of this evidence and it is earnestly insisted upon the authority of State v. Davis, 66 Mo. 684, that the defendant can not waive any right or be prejudiced by any failure on his part to object to the introduction of testimony. While the testimony now objected to is perhaps irrelevant, it was not at all essential to the conviction of the defendant, and taken altogether could do him no harm. But if it were otherwise; if the testimony now complained of had been prejudicial to the defendant, it would be a dangerous practice and one fatal to the administration of the criminal law and the peace of society, to permit objections to the introduction of testimony to be made for the first time in a court of last resort. Such a practice could not be tolerated, and State v. Davis is no authority for it. That decision which is undoubtedly correct, relates to proceedings prescibed by statute for the protection of the prisoner of an entirely different character, and a waiver of objections to testimony is by the very language of that decision impliedly excepted from the rule there laid down. In this State the prisoner may be a witness in his own behalf and is subject to cross examination like any other witness, and if the rule now contended for should receive our sanction it would be utterly impossible ever to obtain a conviction which would stand and the criminal law of the State would become a dead letter, The prisoner himself would only have to state in his testimony in chief or on his cross examination some incompetent and irrevelant matter highly prejudicial to himself, and then after conviction ask a reversal of his sentence at our hands for having done so; for the error of its admission could not be cured by the trial court, by instructing the jury to disregard it. State v. Rothschild, 68 Mo. 52. State v. Daubert, 42 Mo. 242; State v. Marshall, 36 Mo. 400; State v. Mix 15 Mo. 153; State v. Wolf, 15 Mo. 168. The testimony con

1. EXPRESS COMPANY-LIMITATION AS TO VALUE -CONSTRUCTION OF "PACKAGE."-Three bales of furs were delivered to an express company for transportation, the receipt given by the company limiting its liability to $50, for any loss or damage to any box, package or thing, unless the just and true value thereof was therein stated: Held, that the shipper, even though no disclosure of value had been given, was entitled to recover $50 on each of the three bales.

2. RECEIPT-CONSTRUCTION.-The receipt whose conditions the company relied on in this case was a blank of the United States Express Company and was prepared by the plaintiff's bookkeeper, the word "Adams" being written in place of "United States.?' The goods were described, but not valued. Among the conditions was one providing that the United States Express Company would not be liable for more than $50 on each package, unless the true value was stated. Held, that the receipt construed literally was not a contraet between the parties, and that it was error to declare as a matter of law that it was to be read as though the words "United States' were not in it.

3. CONTENTS OF RECEIPT PAROL EVIDENCE.To overcome the valuation clause in an express receipt, the plaintiff offered evidence to prove that the defendant, through its agents, had solicited his patronage on the same terms as other companies, viz., that the goods in which he dealt should be taken on non-valuation rates, which offer the court rejected: Held, error.

4. ASSENT OF THE SHIPPER to the terms of a receipt in derogation of the carrier's liability, is a question of fact for the jury under all the circumstances of the case.

the train, occasioned by a broken rail. As to the delivery of the goods to the carrier, their value and destruction by fire there is no disagreement.

The receipt taken by the shippers at the time of the delivery of the goods to the carrier was filled up by an employee of plaintiffs, and was presented with the goods for the signature of an agent acting on behalf of the company. The blank used for that purpose was one of a large number furnished by the United States Express Company to its customers. In the receipt prepared by the bookkeeper of plaintiffs for the goods to be shipped, the word "Adams" is written over the printed words "United States" so as to make it the receipt of the Adams Express Company. A line made with a pen was drawn over the blank left for stating the valuation of the goods. The articles mentioned in the body of the receipt are "three bales said to contain peltries." On the upper left hand corner of the receipt is stated in figures, the separate and total weights of the three bales, and also two bales mink" and "one bale skunk," but there is a conflict in the testimony as to when these latter words and figures were placed there, whether before or after it was signed by the agent of the company.

Among the printed conditions of the receipt is the following. "And it is hereby expressly agreed that the said United States Express Company are not to be held liable for any loss or damage, except as forwarders only, nor for any loss or damage to any box, package or thing for over $50, unless the just and true value thereof is herein stated." The contention is whether this clause of the receipt limits the right of recovery in case of the loss of the goods to the sum of fifty dollars because the true value was not stated therein, or whether plaintiffs notwithstanding the restriction as to the extent of the carrier's liability can recover the full value of the goods as shown by the evidence. Plaintiffs base their right to recovery on two propositions: First that under the facts of the case it was not their duty to make known to the carrier the valuation of the goods and Second, that even if it was their duty, the omission to make such disclosure can not be urged to limit a recovery for loss of goods caused by the carrier's own negligence. On the other hand defendant rested the defense upon the letter of the contract relying upon what it understood to be a rule of law applicable to the case, that it was incompetent for plaintiffs to contradict or vary the terms of the contract as embodied in the receipt given by the carrier for the goods.

Upon the questions involved the court instructed for defendant that the issues submitted were, whether the furs were lost or destroyed by reason of actual negligence of defendant, and if no negligence is proved, then if the goods while in the course of transportation were destroyed by an unforseen casualty against which ordinary prudence could not provide, it was the duty of the jury to assess no greater damages than $50, the sum stated in the limitation clause of the contract, and that the receipt in evidence must be regarded and treated as a binding contract between the parties in each and all its provisions, and that it should be read as though the words "United States" were

not in it. The court however refused to give for plaintiffs the reverse proposition as it was asked to do, that the conditions and restrictions contained in the receipt were not binding upon plaintiffs so far as they purported to limit the carrier's common law liability unless plaintiffs had knowledge of such restrictions and assented to them. Under the charges given, the jury no doubt felt compelled to assess plaintiffs damages at no greater sum than $50 which they did.

As we have seen, the goods destroyed consisted of two bales of fine and one of coarse furs-all distinct packages-and each proven to be of a value in excess of the sum named in the restricting clause of the receipt. It will be observed the limitation is as to "any box, package or thing,” and as each package or bale exceeded in value $50 there is and can be no reason why in any view that may be taken of the legal effect of the alleged contract plaintiffs can not recover that sum for each "package" destroyed. It makes no difference that the several distinct packages were all embraced in one receipt; they are nevertheless distinct packages. In limiting the amount of recovery, in case no negligence was proven, to fifty dollars, as was done by the court in its instructions, there was manifest error for which the present judgment must be reversed even if no other cause existed.

The question of the most importance in the case is whether, as a matter of law, the receipt in evidence is to be treated as a binding contract between the parties in each and all its provisions.

Construing the receipt literally it contains no contract between the shippers and defendant that in any manner limits the carrier's common law liability, as to the amount of the recovery in case of the loss of the goods. That which is said to constitute such contract is contained in the printed part of the receipt, and is with the United States Express Co., and not with defendant. A case bearing a close analogy to the one in this particular is Merchants Trans. Co. v. Bolles, 80 Ill. 473, where the receipt given for the goods contained exemptions in favor of other companies and it was ruled the carrier receiving the goods could not take the benefit of such exemption in the receipt. It is a proposition so plain it will not be controverted that defendant can claim no exemption from liability for the loss of the goods as a common carrier except such as is given by express contract. Neither in the written or printed part of the receipt is there any express contract making exemptions in favor of the defendant company. Before defendant can claim the benefit of the exemption contained in the contract with the "United States Express Company," it must appear it was the agreement of the parties, and that can only be shown by evidence. In the absence of evidence establishing that fact it was error for the court to declare as it did as a matter of law, that the receipt given for the goods was to be read as if the words "United States," were not in it.

The other proposition stated, viz., "that the receipt must be regarded as a binding contract between the parties in each and all its provisions,"

is the one most discussed. The rule of law adopted and uniformly adhered to in this State is that a clause in a receipt given to the shippers of goods limiting and restricting the carrier's common law liability incident to its general employment, if understandingly assented to be by the owner will as effectually bind him as though he had signed it. Whether such restrictions have been assented to in any given case is always a matter of evidence. The cases in this court that declare this doctrine are referred to in Erie R. Co. v. Wilcox, 84 Ill. 231, and it is not necessary to repeat the citations. When a carrier seeks exemption from any common law liability annexed to its employment the contract must be assented to by the shipper with a view to release the duties imposed, and when the exemption is once established the carrier, in case of loss, will only be responsible on account of negligence or wilful misconduct. The law has wisely and for reasons that concern public interests inhibited a common carrier of passengers or freights from contracting against its own negligence, and notwithstanding it may be so expressed in positive terms in the release, it is not to be read as providing against losses or injuries arising from actual negligence. No argument is made against the correctness of this proposition of law, but its applicability to the case at bar is denied, for the reason, it is said, that the receipt containing the exemption insisted on was prepared by the owner of the goods ready for the signature of the agent of defendant, and they must be held to be conclusively bound by its provisions, and the court as we have seen charged that as a matter of law the receipt was a binding contract between the parties in each and all its provisions. The case of Oppenheimer v. United States Express Co. 69 Ill. 62, is cited as giving sanction to the view of the law taken by the court below. That is a misapprehension of what was decided in that case. While that case declares legal certain rules designed to secure good faith between the shipper and the carrier, it does not go the extent that counsel seem to understand it. We do not wish to be understood as departing in any degree from the law declared to be applicable to the facts of that case. The principle there annnounced is that where the carrier seeks to be discharged from the duties which the law has annexed to its employment, notice alone will not be sufficient without the assent of the shipper to the attempted restriction. But it is otherwise in respect to those duties designed simply to enjoin good faith and fair dealings-a notice alone if brought home to the owner of the property delivered for carriage will be sufficient.

It will be seen there is in that case no departure from the uniform decisions of this court that a carrier can not be released from the duties and liabilities annexed to its employment unless the shipper assents to the attempted restrictions. That is apparent from the fact that it is said in the beginning of the case" the denial in the testimony that the consigners had knowledge of this condition in the receipt must be held to be overcome by the circumstances of the case." The condition to which reference is made is the limit

ation clause as to the amount of recovery in case of loss when no valuation of the goods is stated. On looking into the facts of the case the conclusion was fully warranted. There was in that case what is very justly characterized as unfair conduct on the part of the shippers of the goods. The box containing the goods was a small one, and had nothing on it that indicated what it contained. It was called for by the driver who collects goods for the company, and receipted for as "one case,' but no information was given in any manner as to the contents or value. The receipt given was prepared by the owner of the goods, and was signed by the driver when he called for the package. The box in fact contained watches and jewelry of great value, and had the shippers disclosed the contents or value increased charges would have been exacted over the sum actually paid. There is no analogy between the facts of that case and the one at bar. The goods in this case were so put up that their nature and character were readily discoverable on the slightest examination, and were receipted for as "three bales said to contain peltries." If the testimony given can be credited, the weights and qualities of each bale were indicated on the margin of the receipt as consisting of two bales of mink and one skunk furs. It is a matter of common information that mink is among the fine furs taken in this country and that fact must have been known to the agent of defendant when he received the goods for carriage. There was, therefore, no imposition practiced upon the carrier as to the character of the goods delivered for shipment, and it can not be said the owner omitted any duty imposed by law to insure fair dealing between the carrier and the shipper unless it was the failure to make known the actual value of the goods. That fact, notwithstanding the provisions of the receipt, we think is open to explanation.

Plaintiffs offered to prove that defendant had, through its local agents, solicited his patronage on the same terms that other companies had, that is that such goods as plaintiff was known to be constantly shipping should be taken on non-valuation rates, but the court ruled it was not competent evidence. Conceding the testimony offered was true, and for the purposes of this decision it must be regarded as true, it was most important evidence tending to show why no valuation was stated. If not required to do so by express contract with defendant or by the uniform course of business with defendant and others carriers, then the plaintiffs were not bound in the first instance unless inquired of concerning the actual value of the goods to state any valuation. The testimony excluded was important for another reason as tending to show why neither party paid any attention to the limitation clause in the receipt taken for the goods. On the understanding such goods as the plaintiffs were shipping were to be and had been received and carried at non-valuation rates, neither party was interested to consider the limitation clause and that may have been the reason why plaintiffs failed to erase it or the company to insert its own name instead of the

"United States Express Company," that it might have an express agreement with plaintiffs. It is evidence, to say the least of it, that tends to show that neither party attached any importance to that clause in the receipt. Unless the limitation clause was assented to by the shippers with a view to release defendant from that liability which the law annexes to its employment, defendant can not avail of it and that which counsel maintain as a conclusion of law is nothing more than the effect to be produced by the testimony offered to establish the fact insisted upon. As in the former cases in this court it was a question whether the circumstances in evidence overcome the denial in the testimony that the consignors had know'ledge, and therefore assented to the limitations contained in the receipt, so in this case the same question arises and ought to be submitted to the consideration of a jury as any other fact in the case. On this branch of the case the testimony excluded was important and it was error to reject it.

The same question arose in Field v. Chicago, etc. R. Co. 71 Ill. 458. In that case the bill of lading was filled out by the clerk of plaintiff and as the court found the shippers had notice of the contents and assented to the restrictions therein contained, therefore the receipt or bill of landing was the contract between the parties. It is not understood there has been any departure from the doctrine of that case, that the fact the owner of the goods by himself or clerk filled up the receipt taken, is evidence tending to show the shipper had notice of the conditions, and must have assented to them. It may be true, but it is not conclusive. It is still a question of fact. Sometimes such evidence may produce conviction and justly so, as in Field's case, but cases may arise where the acts of the party may be susceptible of satisfactory explanation.

But admitting the conditious in the receipt were understandingly assented to by the shippers, and became a binding contract between the parties, still defendant would be liable for the full value of the goods if the loss was owing to negligence on the part of the railroad company. An express company choosing such a corporation to do its business, will be chargeable to some extent for the negligence of the agent employed as if the contract was primarily with such agent, on the well recognized principle that for culpable defects in carriages in use by common carriers, the law makes the carrier responsible.

The fourth charge given by the court at the instance of defendant declares the law on this subject but the court excluded from the jury testimony that had an important bearing on the decision. There was evidence tending to show that fire caused by the telescoping of the cars and although the testimony was conflicting, still there was sufficient to warrant the court in submitting that fact to the jury. Bearing directly on this important fact in the case was the testimony offered as to the efficiency of the "Miller platform" to prevent what is called telescoping of cars. Witnesses of large experience in such matters state that the

"Miller platform" is regarded as adding "largely to the safety of trains," and the use of them tends to prevent breaking in the ends of the cars. One witness says he had "known the end of cars to be badly broken in collisions when they had the 'Miller platform' but never knew one car run into another." What is known as the "Miller platform" and others equally as good designed by other parties was generally known and had been in use on all the principal roads in the country long before the happening of the accident by which the plaintiffs goods were destroyed, and if such contrivances contributed materially to the safety of trains it was the plain duty of the railroad company to have adopted some one of them, and the omission to do so, if such was the case,would be negligence. All the evidence offered as to the Miller or other equivalent platforms, was excluded from the jury and this we think was error.

It may be true as counsel insist that no witness testified to the kind of platform in use by the railroad company employed by defendant or that it did not have an equivalent device or an equally safe platform. But it was proven that the railroad did not have the "Miller platform" and plaintiffs offered to prove it used the "ordinary or old fashioned platform." The objection of defendant to the giving of that testimony was sustained. Had the testimony offered as to the kind of platform in fact used by the railroad company been admitted, it would with that excluded by the court, have made the question whether the fire that destroyed plaintiffs goods was owing to the want of the "Miller platform" or other equivalent device to prevent telescoping of the cars. It was a question of fact, and ought to have been submitted to the jury as any other fact in the case.

For the errors indicated the judgment will be reversed and the cause remanded. Reversed. SHELDON J.,

dissenting:

I dissent from so much of the foregoing opinion as may seem to imply that in the case of such a provision as the present, there is required in addition to knowledge, assent to it. Where the provision, as here, is for the purpose of securing disclosure of value, knowledge of it brought home to the consignor is sufficient. But when it is a simple restriction of common law liability, then there must be assent in addition to knowledge. This distinction was recognized and adopted in the Oppenheimer case. The opinion, inadvertently I think, overlooks the distinction.

RAILROADS IN STREETS — ULTRA VIRES -NEGLIGENCE.

STANLEY v. CITY OF DAVENPORT.

Supreme Court of Iowa, October Term, 1879.

In the absence of express legislative authority, a city can not lawfully grant to a street railroad company the right to operate a steam motor along its streets; and to do so is negligence which will render the city liable for injuries sustained by a person on the street by reason of the operation of the motor