pletion of the superstructure, and on the day last mentioned a joint meeting of all the highway commissioners of the two towns was held, at which the bridge was accepted and an agreement in writing made between the highway commissioners of the two towns for the maintenance of the bridge in good order, at the equal cost of the two towns. The town of Utica issued its bonds the amount of $19,000, the proceeds of which were applied to the payment of Fife & Hetherington on their contract, as the money became due; and the town of Utica also paid to complainant $2.609.45, to apply on complainant's contract for the superstructure; that is, when the materials for the superstructure arrived at Utica, The freight on the same, amounting to $2,609.45, was paid by that town and charged or debited to the complainant. At the September meeting, 1877, of the board of supervisors of La Salle county, the sum of $7,000 was appropriated to aid Utica and Deer Park in the construction of this bridge, and as it then appeared that Utica had paid all that had been paid towards the work, it was ordered that $3,500 of said appropriation be paid to Utica, and the same was so paid, and at the March meeting of said board, 1882, the balance of said appropriation was ordered paid to the town of Utica. After the completion of the bridge, the town of Deer Park refusing to make any payment whatever to the complainant, and the town of Utica refusing to make any further payment than the $2,609.45 paid for freight on materials, complainant brought an action of assumpsit against the two towns in the circuit court of La Salle county, which resulted in a judgment by default against Utica and against Deer Park, on rial of the issues by the court. Damages were assessed against each town separrately at $10,096.83, and one-half the costs. From this judgment an appeal was taken by the town of Deer Park to the appellate court of the second district of this State, where the judgment was reversed, (3 Bradw. 572.) the appellate court holding, in substance, that there was no legal liability on the part of either town to pay complainant for this bridge; the conclusion being briefly that there was no such joint action by the board of highway commissioners of the two towns as made the contract with complainant binding on either town. Thereupon, said cause having been remanded to the circuit court, was again tried and the issues found for the defendants and judgment given against complainant, which judgment was afterward affirmed by said appellate court, and on appeal to the supreme court of this State the last judgment of said circuit and appellate courts was affirmed. 101 I. 518. Complainant now brings this bill, upon the ground that, in making the contract for the construction of said bridge, complainant acted under a mistake as to matters of law and fact; and, inasmuch as complainant has no remedy at law, prays that it be allowed by the decree and judgment of this court to take down and remove said bridge.

There can be no doubt, from the testimony in this case, that complainant built this bridge in good faith, in the expectation that it would be paid for by one or both of these towrs. At the time the contract for the construction of the bridge was made with complainant, both these towns had, by a vote of their electors, authorized by the laws of the State (Rev. Stat., ch. 121, sec. 111), decided to borrow money with which to build the bridge. From the nature of the work, the substructure was first to be built, and, as a matter of course, it was the first work to be paid for. There seems to have been no opposing party in the town of Utica in regard to the policy of the enterprise, and as this money became due to the contractors for the piers and abutments, it was paid to them by the commisssioners of highways of Utica, so that by the time complainant's contract was completed, Utica had exhausted its funds in the payment for the substructure, and complainant was left to look to Deer Park for payment of the iron superstructure, although by the contract with complainant, the town of Utica had agreed to pay one-half the cost of the superstructure.

I do not care to spend time upon a metaphysical discussion of the question whether complainant acted under a mistake of fact or a mistake of law in making this contract, or in the building of this bridge in pursuance of the contract. It is not a supposable case that complainant would have built the bridge if it had not expected to be paid for it. The action of the authorities of both towns, up to the time when the formal contract was made, justified such expectation, and while the complainant may have been wrongly advised in the mater, as to how many members of the board of highway commissioners constituted a quorum in a joint meeting of these boards, there can be no doubt that the complainant would not have built the bridge but for the expectation that the bridge would be paid for, which expectation was, as it seems to me, fully justified by the fact that both towns had voted to raise the money for the purpose. To have assumed that the towns were legally bound by the contract of less than a majority of the highway commissioners of both towns, acting in joint session, may have been a mistake of law; to have assumed that they would honestly carry out the expressed will of the voters, and borrow the money and pay for the bridge, without captious objection, was an assumption of fact,and the mistake in acting upon this assumption was clearly a mistake of fact. When the bridge was completed, the highway commissioners of both towns met, had the bridge examined by their engineer, and he reported that plaintiff had in all respects complied with its contract; and if the plaintiff had not been acting, as a matter of fact, under the belief that the bridge would be paid for under the contract, which this joint meeting of highway commissioners had been so careful to ascertain had been fully performed by the plaintiff,

it may be assumed, from all knowledge of human actions, that the plaintiff would never have given to these two towns the possession of the bridge. It was no part of the business of this plaintiff to build bridges gratuitously for the people of these towns, or any other community. The plaintiff was and is a business corporation, taking contracts like this with the expectation that it is to be paid for the labor and material it expends in constructing works like this.

This case seems to me in all essential principles analogous to the case of Chapman v. County Commissioners, decided by the Supreme Court of the United States during its last term. 15 Ch. Leg. N. 193; 2 Sup. Ct. Rep. 62. In that case the county of Douglas, in the State of Nebraska, had bought a farm to be used for the support thereon for the county poor, and a deed conveying the farm to the county had been executed and delivered. One thousand dollars of the purchase money was paid, and the county gave its obligations, secured by a mortgage on the farm, to secure the balance of the purchase money, and the county took possession and made the improvements. When these obligations given for the purchase money became due,payment was refused by the county on the ground that the notes and mortgage given to secure the same were void for want of power to make them. The seller filed a bill to obtain restitution of his property. In the opinion the court say, by Mr. Justice Matthews: "The contract for the sale itself had been executed on the part of the vendor by the delivery of the deed, and his title to it had consequently passed to the county. As the agreement between the parties had failed by reason of the legal disability of the county to perform its part according to its condition, the right of the vendor to rescind the contract and to restitution of his title would seem to be as clear as it would be just, unless some valid reason to the contrary may be shown. As was said by the court in Marsh v. Fulton Co., 10 Wall. 676-684, and repeated in Louisana v. Wood, 102 U. S. 294-299, the obligation to do justice rests upon all persons, natural and artificial, and if the county obtains the money or property of others without authority, the law, independent of any statute, will compel restitution or compensation.

The learned judge, after an examination of the authorities, finds that there is no valid reason why restitution should not be made, and concludes by saying "The conveyance to the county passed the legal title, but upon a condition in the contract which it was impossible, in law, for the county to perform. There resulted, therefore, to the grantor the right to rescind the agreement upon which the deed was made, and thus convert the county into a trustee, by construction of the law, of the title for his benefit. There is nothing, therefore, to prevent the relief prayed for being granted, if it can be done without injustice to the defendant. On this point, it is said, it would be inequitable to decree a rescission of the contract and restoration

*

of possession of the property because the parties can not be placed in statu quo. * * If the relief asked was an unconditional reconveyance of the title and surrender of possession, this would undoubtedly be true; but such is not the case. Any such injurious and inequitable results as are deprecated may easily be averted by the simple payment of the amount due on account of the purchase money."

Tested by this reasoning of the Supreme Court, it seems to me plaintiff's right to the relief asked in this case is clear and undeniable. The delivery of this bridge to the towns of Utica and Deer Park passed to them the apparent legal title, but they have never become the equitable owners. The bridge has not been paid for, and they have therefore no equitable right to keep it without paying for it.

As to the objections interposed by the respective defendants to the relief asked by plaintiff, it is only necessary to say: The town of Utica insists that it has expended a large sum of money in paying for the piers and abutments on which this bridge rests; has paid also over $2,500 to plaintiff to apply on the superstructure,—all of which will be lost if the plaintiff is allowed to remove the iron superstructure; that the town of Utica has actually, in good faith, expended more than its proportion of the construction of the bridge as a whole. The reply to this is that this defendant agreed to pay plaintiff one-half the cost of the iron superstructure, and has repudiated its contract in that regard, and that this plaintiff should not be made a loser by reason of the default of Deer Park to keep faith with Utica and pay its half of the cost of the bridge. While it was agreed that Utica should only pay for half the cost of the superstructure, it was also agreed that it should collect the other half from Deer Park and pay it to complainant, and this it has neglected to do.

In behalf of Deer Park, it is urged that the plaintiff placed the bridge there voluntarily, and in face of the notice from the officers of the town that the town would not pay for it; that the bridge is built upon a public highway of the town; and that the situation of the bridge is analogous to that of a house knowingly built by one man upon the land of another. To which it may be answered, that the plaintiff had as good right to act on the faith that the town would pay for the bridge, because the people had voted to do so, as it had to act upon the notice of the officers of the town that it would not pay for it. There was no attempt on the part of the town to prevent the construction of the bridge, but its proper officers were prompt to accept the bridge, and the people of the town to use it as soon as it was finished, according to the contract; and, if this town has so far used this bridge without intending to pay for it, it can not complain if the court allows the plaintiff to take it away.

The defense on the part of the county of La Salle is that it has contributed $7,000 towards paying for the bridge,of which it will be deprived

if the bridge is removed. This argument would have some force if the county had paid the money to the plaintiff; but the payment of that sum to the town of Utica, which has been applied by that town in the reduction of its own contribution to the bridge, can not, it seems to me, in any way affect the rights of this plaintiff. If the county authorities saw fit improvidently to appropriate this $7,000 where it would not be applied towards paying for the construction of the bridge, it is the misfortune of the county, and not the fault of the plaintiff.

Utica has paid $2,609.45 to apply on plaintiff's compensation for the bridge, but this is so small a proportion of the entire cost of the bridge that it ought not to affect the plaintiff's right to the relief prayed for, inasmuch as the court can adjust the equities of the parties in that regard.

There will, therefore, be a decree entered, that, unless the defendants, the towns of Utica and Deer Park, within uinety days from this date, pay to the plaintiff the amount due upon the contract for the construction of this bridge, deducting the $2,609.45 which has been paid, together with interest upon the balance unpaid at the rate of 6 per cent. from the time of the completion of the bridge, the plaintiff will be allowed to take down the bridge and remove it, under the direction of the proper officer of this court; but that, if the defendants, or some of them, shall not elect to make this payment and thereby save the bridge, plaintiff will be allowed to take down and remove the iron superstructure of the bridge; but before plaintiff so removes the bridge, it will be required to repay the town of Utica the sum of $2,609.45 so paid to plaintiff by said town on account of the bridge.

Supreme Court of Missouri, April Term, 1883. The first indictment contained two counts; the first for grand larceny in stealing a mare, and the second for the embezzlement of the same. Defendant was convicted on the first count for the larceny, and acquitted on the count for the embezzlement. Judg. ment was arrested for a defect in the indictment, and a new indictment found for the larceny alone. Held, that defendant could not interpose a plea of autre fois acquit, and that he was properly convicted of the larceny under the second indictment.

Appeal from Livingston Circuit Court.

On the trial of this case, E. A. Evans, on the part of the State, testified, in effect, that defendant came to his house asking employment, and that he employed him as a work hand on his farm. This was on Saturday. On Monday, when witness proposed to send defendant out to plowing, he said he had clothes in Chillicothe, and would go and get them before he went to work, as he

wanted a change of clothing, and requested witness to loan him a horse, promising to be back by three o'clock, P. M. Witness let defendant have the mare, but he never returned, and witness never saw her afterwards. About three months afterwards witness heard of him being in the Richmond jail, where he found him in his cell. Tears were running down his cheeks. He said he had taken my mare to Chariton, Iowa, and sold her to a man for $25; took the money and got on a spree, and then went some miles from there and worked for a man for several days, then stole a horse and took it to Nebraska; stayed there thirty days; stole another horse, and brought it to Missouri and sold it, and that he was then in jail for stealing a horse here. The State also proved by other witnesses that defendant said he sold the mare to a man in Chariton, Iowa, aud that he hoped Evans would not be hard with him.

Defendant, in his own behalf, testified that he hired to Evans to work. He told Evans he wanted to go to Chillicothe for his clothes, and proposed to walk, but Evans said, take the horse so as to be back sooner. At the time I got Evans' horse I rode her to Chillicothe, spent the money he had given me to get feed for the horse and books for the children for whisky.

The court instructed the jury on the part of the State: 1st, The jury are instructed, that if they believe from the evidence, facts and circumstances proven in this case, beyond a reasonable doubt, that the defendant got the mare with the intent to steal her, and did convert her to his own use, he is guilty of grand larceny, and in determining the question if intent, they must look to all the facts and circumstances in the case. 2nd. They are instructed that if they believe, from all the facts and circumstances in proof, beyond a reasonable doubt that defendant in the month of April 1879, at Livingston county, State of Missouri, borrowed of E. A. Evans, the mare mentioned in the indictment, and that said mare was the property of said Evans, that defendant never returned said mare, but converted her to his own use, and that at the time defendant so borrowed said mare, he did so with the intent to steal her, or permanently to convert her to his own use without the consent of the owner, they should find him guilty, and assess his punishment at not less than two nor more than seven years in the penitentiary. 3d. The jury are the sole judges of the credibility of the witnesses, and the weight to be given to their evidence, and the jury are not bound to give to the testimony of any witness any other or greater weight than under all the cirstances in proof they may believe it entitled to. 4th. Unless the jury believe from the evidence, beyond a reasonable doubt, that defendant took stole and carried away, the mare mentioned in the indictment, as charged therein within three years next before the 28th day of January 1882, they will find him not guilty, unless they further find that for some portion of that time he was absent from the State, or was a fugitive from justice

for the commission of the offense charged; in which case they will exclude the time defendant was so absent from the State, or was a fugitive from justice, from said three years—but unless they are satisfied from the evidence that three full years have not elapsed between the commission of the offense and the 28th day of January, 1882,during which three years the defendant was in this State, and not a fugitive from justice, they will find him not guilty. 5th. If the jury believe from all the facts and circumstances in proof, beyond a reasonable doubt, that the defendant got the mare, described in the indictment, with the intent to steal her, and did convert her to his own use, he is guilty of grand larceny, and that in determining the question of intent, they must look to all the facts and circumstances in proof. 6th. The evidence consists as well of facts and circumstances, as of direct proof, and that proof may be as well made by facts and circumstances as by direct proof. 7th. The jury are instructed that under the law drunkenness is no excuse or justification of crime. 8th. The jury are instructed that a reasonable doubt, to authorize an acquital, should be a substantial doubt and not a mere possibility of defendant's innocence of the crime with which he is charged. 9th. The jury are instructed that, by the statute of this State, the defendant is a competent witness in his own behalf, but the fact that he is a witness, testifying in his own behalf, may be considered by the jury in determining the credibility of his testimony.

The following instructions were given on the part of the defendant: 1st. The court instructs the jury that they can not find the defendant guilty of embezzlement in this case, that he has been acquitted of the same; and if they believe from the facts and circumstances in evidence, that the defendant conceived the intent of stealing Evan's horse after he got possession of him from Evans, they will find him not guilty. 2d. The jury are instructed that if they have any reasonable doubt as to whether the defendant conceived the intent to take the horse before or at the time he got possession of it, they will find him not guilty. 3d. The court instructs the jury, if they entertain a reasonable doubt as to whether defendant first conceived the intent to steal the horse in controversy after he got possession of it, they will find him not guilty.

The jury found the defendant guilty of grand larceny, and assessed his punishment at two years in the penitentiary.

SHERWOOD, J., delivered the opinion of the

court:

The defendant was indicted in the Livingston circuit court. The indictment contained two counts: the first for larceny in stealing a mare; the second for feloniously embezzling the same. Upon trial had, the defendant was found guilty on the first count, and not guilty as to the second, and judgment of discharge entered accordingly. For a fatal defect in the first count, the judgment was arrested, and upon another indictment being

found for larceny alone, the defendant interposed his plea of autre fois acquit. The trial court very properly held that this plea could not prevail, the facts of the case spread upon the record not warranting or sustaining a plea in bar. The statute provides that a person may be indicted for embezzlement and convicted of larceny, or vice versa, and in either case he is punished according to the fact as found by the verdict,-whether the indictment charged embezzlement or whether it charged larceny (Rev. Stat. 1879, sec 652); and the section cited further provides that no person so tried for embezzlement or larceny as aforesaid, shall be liable to be afterwards prosecuted for larceny or embezzlement upon the same facts.

Had the indictment in this case contained but one count, either for larceny or embezzlement, and there had been simply a verdict of acquital, doubtless under the very terms of the statute, no further prosecution could have been maintained for either of such offenses based on the same facts. But had the indictment contained but one count, and that for embezzlement, and had a trial been had on such count, and the defendant found guilty of larceny, and either expressly or else tacitly not guilty of embezzlement, no one would question but that if the indictment were held bad on a motion in arrest, the defendant could be indicted and tried on an indictment charging larceny alone; and the status in this case is not altered in this regard because the pleader has seen fit to make his charge bifurcate instead of making it in one count as allowed by the statute.

The verdict in this case on the former indictment must be taken as a whole, and not in separate parts. It clearly convicts the defendant of arceny and acquits him of embezzlement; and when a plea of autre fois acquit is pleaded, based on such a verdict, it requires but an inspection of it to see that the defendant did not go acquit of the larceny. State v. Bowen, 16 Kan. 475; 1 Bishop on Crim. Prac., sec. 1005 a.

2. Although the entry announcing the fact of the nolle prosequi as to a former indictment is somewhat obscure, yet we think it sufficiently plain what indictment was intended to be quashed, and the subsequent action of the court upon the indictment last found, shows what construction that court put upon its own entry of record. We will not intend, except upon the very clearest and most satisfactory record evidence of the fact, that a court would commit or sanction such an egregious blunder as to put a defendant upon his trial with no living indictment whereon to try him.

3. The last indictment found was a valid and sufficient indictment, and charged that the larcenius act was feloniously done. There is no substantial objection to it.

4. No discussion is needed respecting the causes alleged in the last indictment as to the absence of the defendant from the State, and as to his being a fugitive from justice, because the Statute of Limitations does not run, where, as here, there

were successive indictments pending against the defendant for the offense for which he was tried; and here the first indictment was found at the January Term, 1880. Rev. Stat. 1879, sec. 1707. State v. Duclos, 35 Mo. 237; State ex rel. v. Prim, 61 Mo. 166; Bishop's Stat. Crim., sec. 662. The instructions on both sides taken as a whole correctly declare the law on the subject of larceny as applicable to the facts in evidence, and no valid objection can be urged against them. It may not be amiss, however, to say that nine instructions were given on behalf of the State and three on the part of the defendant, making twelve in all, when the whole law of the case could have been declared by one, or at least by two well drawn :nd concise instructions.

6. We have no fault to find with the lower court in permitting the prosecuting attorney, after the defendant had testified in chief, to ask him, after cross-examining him to some extent: "Is this all you are willing to tell the jury about the case?" Such words were only equivalent to asking him, "Have you anything more to tell the jury?" The defendant voluntarily testified in his own behalf, and had thus testified and was therefore amenable to the usual rule respecting other witnesses, and it was the privilege of the prosecuting attorney by all proper questions and methods to elicit truth.

7. Granting that there was error in permitting Evans, the owner of the mare, to relate to the jury the confessions of the defendant as to other similar crimes, besides the one for which he was on trial, it is impossible to see how the defendant was in the smallest degree prejudiced thereby, because when on the witness stand, he virtually admitted his guilt,-admitted that he rode the mare off from Chillicothe, where he had been permitted to go out of the kindness of Evans, and he did not pretend that he ever returned the mare, and there was evidence that he had not; and besides his own confessions to several other persons than Evans, show his guilt in the clearest possible light. In such circumstances, it would be out of the question to reverse the judgment. State v. Patterson, 73 Mo. 695; Rex v. Ball, Russ. & Ry. 132; State v. Emory, decided at the last term of this court; State v. Jennings, 18 Mo. 435.

8. The remarks of the prosecuting circuit attorney, if improper, are disposed of by the observations made in the case of State v. Zumbunson, decided at the last term, and by the case of State v. Jowls, and State v. Deekinson, decided at the present term. Therefore judgment affirmed.

NORTON and RAY, JJ., concur; HOUGH, C. J., and HENRY, J., dissent.

Dissenting opinion by HOUGH, C. J.: I am unable to find anything in this record which warrants the statement that defendant virtually admitted his guilt at the trial. He was charged generally with larceny, and for the reason given in the opinion of the majority could not be convicted of embezzlement. The indictment was drawn under sec. 1307 and not under sec. 1322.

Edward P. Evans, the owner of the mare,charged to have been stolen, testified that he loaned the mare in question to defendant at his request. The defendant testified that Evans tendered the use of the mare to him. The circuit court charged the jury, in substance, that unless they believed from the testimony that defendant borrowed the mare with intent to steal her, or permanently convert her to his own use, they would find him not guilty; and that if they had a reasonable doubt as to whether defendant conceived the intent to steal the mare before or at the time he got possession of her, why they should find him not guilty.

It was admitted by the defendant at the trial that he rode the horse off, and he did not pretend that he had ever returned her, but neither the fact that he rode the horse off, nor the fact that he did not return her, nor both combined constitute larceny under the instructions given at the trial court and approved by this court in the opinion of the majority. The intent to steal the mare when he borrowed her, or accepted the loan of her, as the fact may be, was necessary to constitute the failure to return the mare, larceny under the indictment in this case; and this intent was not admitted by the defendant at the trial, nor was it confessed by him to any one, certainly not directly, and, as I think, not even by implication. The evidence of other similar offenses introduced in violation of all laws, doubtless settled that question with the jury. In a note to 1 Greenleaf, 3d ed., sec. 218, on the subject of confessions, it is said: "The evidence must be confined to his confessions in regard to the particular offense of which he is indicted. If it relates to another distinct offense it is inadmissible." Reg. v. Butler, 2 Cor. & Ker. 221; Vide, also, State v. Goetz, 34 Mo. 85; State v. Harrold, 38 Mo. 496; State v. Dunbert, 42 Mo. 242; State v. Maner, 71 Mo. 419; State v. Greenwade, 72 Mo. 298; State v. Martin, 74 Mo. 547; State v. Underwood,75 Mo. 230; State v. Turner, 76 Mo. 351. Tae decision in State v. Underwood, supra, is correct, for the reason that in that case it was impossible to separate that portion of the conversation of the prisoner relating to the offense with which he was charged, from— that portion of the conversation relating to another offense.i

The truth of all extra-judicial confessions is a matter for the jury, and not for the court. When incompetent or irrelevant testimony damaging to the defendant has been admitted, it is not for this court to usurp the province of the jury and declare that excluding such incompetent testimony the other evidence shows the defendant to be guilty. The case of Rex v. Bull, Russ & Ry., cited in the opinion of the majority,can not be accepted as an authority to the contrary. That decision was put expressly upon the ground that there could be no new trial for felony. Chambers, J., said: "If it were clearly made out by the proper evidence in such a way as to leave no doubt of the guilt of the prisoner in the mind of any rea