Law, § 728. Although this section 3940 became a part of our law in 1835, no case requiring its construction reached this court until 1880, when State v. Craft, 72 Mo. 456, was decided, in which it was held that a conviction upon an indictment for an attempt to commit larceny could not be sustained by evidence showing an attempt to commit robbery. In State v. Mills, 88 Mo. 417, the indictment charged an attempt to commit a burglary; averring an attempt to do all the acts necessary to constitute burglary, had the attempt succeeded. In State v. Frank, 103 Mo. 120, 15 S. W. Rep. 330, it was held that an attempt to commit a crime was included in the allegation of the indictment charging the offense itself under the provision of sec. tion 1655, Rev. St. 1879 (section 3950, Rev. St. 1889). In State v. Montgomery, 109 Mo. 645, 19 S. W. Rep. 221, the correctness of defendant's position, that an indictment for an attempt to commit a crime must allege the offense as specifically as though it was for the completed offense, was conceded. The point discussed and ruled on in that case was the construction of section 3530, Rev. St. 1889. Judge Kelly, in the last edition of his Criminal Law and Practice (sec. tion 1092, p. 763), says the indictment must set out the offense according to the requirement of statutes, by stating the offense attempted, the act done, and that it failed, or was prevented or intercepted. The pleader was not content to charge the defendant with an assault with intent to commit a robbery, in which the same particularity is not required as in charging the offense itself (State v. Smith, 80 Mo. 516; State v. Chumley, 67 Mo. 41), but assumed the burden of convicting defendant of an attempt to commit a robbery under section 3940. It is obvious that no conviction could be had, of robbery in the first degree, under an indictment for the second, nor of the second or third under an indictment charging the first. Hence, to convict of an attempt, it must appear it was an attempt to commit a particular degree of robbery, and this can only appear by averment of acts that would constitute that offense if they had not failed. U. S. v. Hess, 124 U. S. 483, 8 Sup. Ct. Rep. 571; 2 Bish. Crim. Proc. § 962. The essentials of an indictment for robbery in the first degree are well defined. It was always deemed essential, at common law, to charge that the property was taken with violence from the person, and against the will, of the party robbed. 1 Hale P. C. 534; State v. Davidson, 38 Mo. 374; State v. Willcoxen, Id. 370. This averment is not made in either count of this indictment. In lieu of the averment, "take with violence from the person," a taking in the presence of the person robbed may be alleged; and it is sufficient, to make out robbery in the first degree, to allege, instead of a taking by force, that it was taken from the person robbed "by putting him in fear of some immediate injury to his person." The pleader attempts this averment by charging violence to his person, and "by putting Reed in fear of immediate injury," but does not allege the fear was immediate injury to his person. For aught that appears, the fear might have been of immediate injury to some relative or property. In charging a felony, nothing is to be taken by intendment. In these respects, both counts are fatally defective. Whart. Crim. Law (2d Ed.), p. 144, 540, Kelly, Crim. Law (2d Ed.), §§ 626, 634; State v. Brown, 104 Mo. 365, 16 S. W. Rep. 406; State v. O'Conner, 105 Mo. 121, 16 S. W. Rep. 510.

CARRIERS OF LIVE STOCK-INFECTED CATTLE-LIABILITY.-The Supreme Court of Iowa

decides in Furley v. Chicago, M. & St. P. Ry. Co.. 57 N. W. Rep. 719, that Code, § 4058, amended by Acts 21st Gen. Assem. ch. 156, declaring that any railway company which shall bring any cattle into the State which, at the time they were brought, were in such condition as to communicate Texas fever, shall be guilty of a misdemeanor, and that any person who shall be injured may recover his damages, does not make the civil liability to persons injured by the importation of infected cattle absolute, but makes the injury only a prima facie case of liability, which may be rebutted by showing freedom from negligence on the part of the railway company. Robinson, J., dissented. Rothrock, J., says:

This statutory provision does not appear to us to be essentially different, so far as the rule of liability thereunder is involved, from that part of section 1289 of the Code which was under consideration by this court in the case of Small v. Railway Co., 50 Iowa, 338. That provision is as follows: "Any corporation operating a railway shall be liable for all damages by fire that is set out or caused by operating of any such railway, and such damage may be recovered by the party damaged in the same manner as set forth in this section in regard to stock, except as to double damages." It was held, in the case above cited, that this does not create an absolute liability, but makes the fact of an injury so occurring only prima facie evidence of negligence, which may be rebutted by a showing of freedom from negligence. It is true that the decision in that case was made by a divided court; but the rule of the majority has since been followed in very many cases. See Slosson v. Railroad Co., 51 Iowa, 294, 1 N. W. Rep. 543; Libby v. Railroad Co., 52 Iowa, 92, 2 N. W. Rep. 982; Babcock v. Railway Co., 62 Iowa, 593, 13 N. W. Rep. 740, and 17 N. W. Rep 909; Rose v. Railway Co., 72 Iowa, 625, 34 N. W. Rep. 450; Seska v. Railway Co., 77 Iowa, 137, 41 N. W. Rep. 596; Eagle v. Railway Co., 77 Iowa, 661, 37 N. W. Rep. 6, and 42 N. W. Rep. 512; Greenfield v. Railway Co. (Iowa), 49 N. W. Rep. 95. And since the decision was made in Small's Case there have been six regular sessions of the general assembly, and we are not aware that at any time there has been any proposition introduced looking to an amendment of this statute, so as to make the liability for setting out fires absolute. Under the circumstances, it would be an amazing departure from a long line of decisions to hold that the construction adopted in Small's Case is not the settled law of this State, as expressed by this court, and as enacted by the lawmaking power. As we have said, the statute declaring liability for setting out fires, so far as the question of its absoluteness is involved, is not different from the statute applicable to this case. We need not here set them out side by side. They are essentially the same, as will appear by any fair examination of their provisions. It is provided by a statute of the State of Kansas as follows: "That no person or persons shall drive or cause to be driven into or through any county in this State, any cattle diseased with the lisease known as Texas, splenic, or Spanish fever. Any person violating any provision of this act shall on conviction be adjudged

guilty of a misdemeanor, and shall be fined not less than one hundred and not more than one thousand dollars, and be imprisoned in the county jail not less than thirty days and not more than one year." Another section of the same act is as follows: "Any person or persons who shall drive or cause to be driven into or through any county in this State any of the cattle mentioned in section one of this act, in violation of this act, shall be liable to the party injured for all damages that may arise from the communication of disease from the cattle so driven to be recovered in civil action, and the party so injured shall have a lien upon the cattle so driven." In the case of Patee v. Adams, 37 Kan. 133, 14 Pac. Rep. 505, it was held that in an action to recover damages under this statute it was essential for the plaintiff to allege and prove that the defendant knew, or had reason to know, that the cattle so driven were diseased with the fever, or were liable to communicate the disease to the domestic cattle of the State. It will be observed that the statute involved in that case is not essentially different from our own. They both declare a liability in general terms, without any language importing an absolute liability. The cited case goes much further than Small's Case, or than we do in the case at bar, and holds that the burden of proof of knowledge or neg. ligence is on the plaintiff. Patee v. Adams, supra, was followed and approved in Railway Co. v. Finley, 38 Kan. 350, 16 Pac. Rep. 951. Counsel for appellee admit that the cited cases involve the same question which we are considering. It is to be conceded that a contrary rule has been adopted in the State of Missouri. See Wilson v. Railroad Co., 69 Mo. 184, and Surface v. Railroad Co., 63 Mo. 452. In our opinion the rule of the Kansas cases is in line with the better principle.

But it is claimed by counsel for appellee that the question has, in effect, been determined by this court; and we are cited to the cases of Jamison v. Burton, 43 Iowa, 282; Dudley v. Sautbine, 40 Iowa, 650; State v. Thompson, 74 Iowa, 119, 37 N. W. Rep. 104; and State v. Cloughly, 73 Iowa, 626, 35 N. W. Rep. 652. These and other cases which have been decided by this court are mainly prosecutions for violations of the prohibitory liquor law of this State by selling beer to minors and inebriates, and it is held that want of knowledge of the age or habits of the purchaser is no defense. The principle upon which the cases rest is that the avocation of the vendor of intoxicating liquors is unlawful, except under certain circumstances, and that, when he sells, he assumes the burden of knowing that these circumstances exist, and sells his liquor at his peril. It is a general rule that mere ignorance of fact will not excuse a person from a penalty provided by statute. 3 Greenl. Ev. § 21. But that principle can have no application to one who, in the pursuit of a lawful calling, and in the exercise of proper care and caution, does an act contrary to some statutory requirement. The theory of appellee is that defendant committed a criminal act, the violation of which is punishable by fine and imprisonment, and that, as it could make no successful defense to a criminal prosecution, it is absolutely liable for the damages occasioned by the criminal act. This is not an absolute rule. The law is well settled that, when a railroad train is operated through a city at a rate of speed prohibited by law or ordinance under a penalty, there is no absolute liability to a person injured by reason of the violation of the law or ordinance. It may, in such case, be shown that the person injured contributed to cause the injury by his own negligence. The applica tion of the principle contended for to the facts of this

case, it appears to us, shows conclusively that the defendant should have the right to prove, if it can, that it was free from negligence in receiving and transporting the car over its road. There is no hardship to plaintiffs in adopting this rule. The case is exceptional in its facts. It was not an ordinary shipment of live stock, which would put the employers on inquiry as to whether the animals were such as come within the provisions of the statute. The cow was not bred in the south. The owner of the property was a resident of this State. In the fall of the year previous to the shipment complained of, Brown went to Long Beach to remain during the winter. He shipped his cow, with certain household goods, to that place, and the alleged cause of action arose when he reshipped the property to this State in the spring following. There was nothing in the appearance of the cow indicating that she had any disease. The fact appears to be that she was not diseased. She was milked during all the time she was in the south, and after she was returned to this State, and the milk was used by Brown's family. In the autumn of the following year she was fattened and slaughtered, and her flesh was used for food. There is evidence, however, to the effect that an animal acclimated in the south, and removed to this State, may communicate the Texas fever to cattle here without showing any evidence of the disease itself. In view of this claim, and in consideration of the fact that the defendant, as a common carrier, is bound to receive and transport freight offered for shipment, it would be unjust and unreasonable to require that it be absolutely liable to pay all damages arising by reason of the carrying of animals that may communicate contagious diseases, without allowing it to be shown that the carrier had no notice, and could not, by the use of reasonable care, have ascertained. that the animal belonged to the class, the transportation of which is forbidden by the statute. We think the statute under consideration does not impose any such absolute liability. The business of a common carrier is not only lawful, but it is absolutely essential as an agency in the transaction of the business interests and commercial affairs of the country. Under the facts of this case, the claim of appellee, in the face of the facts pleaded in the answer, is that the defendant was bound at its peril, before receiving the car, to ascertain that the animal was not in such condition as to communicate the disease to other cattle. Under the law of this State and the act of congress known as the "Interstate Commerce Law," the defendant was bound to receive freight in car lots, and haul it to its destination. McClain's Code, § 2039; 24 Stat. 379. And the nature of the freight in this case was such that the defendant was bound to act promptly. It was liable to an action for damages if it failed to so act. The contention of plaintiff is that there is a liability for fine and imprisonment and damages for receiving and hauling the car. Suppose that the defendant was a natural person, and should be indieted, and he should offer to prove the facts set up in this answer; we think there ought to be no question that it would be a great error to reject the evidence, and hold the defendant guilty of a crime, and imprison him in a county jail for six months, and fine him $1,000. There is nothing in either the letter or the spirit of the statute which would sanction any such proceeding. The case is essentially different from those arising upon such police regulations as are enacted for the purpose of regulating dramshops, gambling houses, and the smuggling of goods, and the like. Counsel for appellee, in their argument in this court, say that, if the construction of the statute which we have adopted is

to prevail, "it will at once become a dead letter, and may as well be repealed." We think the [fears of counsel are groundless. As we have said, the case at bar is exceptional in its facts. We hold that the defendant should be allowed to show that it was blameless, if it can make such a showing. The rule in the Small Case left that statute in full force, and recovery has been had under that law in a large number of cases, as the reports of the decisions of this court will show. The judgment of the District Court is reversed.

REBUTTAL OF IMPEACHING TESTI

MONY.

It is established practice that where a party has sought to impeach the testimony of a witness by attacking his character for truth and veracity, the party introducing him may sustain his evidence, by testimony in rebuttal that his character, for truth and veracity is good.' But a witness may be impeached also by showing corruption, a bias or an interest in the controversy. And where a witness' credibility is attacked in this way, it would seem, on principle, that the party introducing him should be privileged to disprove such corruption, bias or interest. Clearly if one party is to be permitted to raise a new issue by impeaching the witness and showing that he is biased, has been bribed, or is interested in the suit, the party calling him ought in justice to be allowed to meet that issue by showing that the witness is not biased, has not been bribed and is not interested. Such evidence if pertinent to the issue so raised, must clearly be regarded as in rebuttal. While it cannot be said that the principle, as just stated may be regarded as established by the adjudicated cases, it cannot be doubted that the tendency of the authorities is to sustain this view. In State v. Downs, it was held that, where a witness for the State denies on cross-examination, that at a designated time and place, he agreed to leave and not testify against defendant, in consideration of one hundred dollars, he may be contradicted by the defendant as it is not a collateral matter but goes directly to the credit of the witness, showing him to be a corrupt witness. case of State v. Intoxicating Liquors, re

The

1 Whart. Evid. § 569 and cases cited; 1 Greenl. Evid.

§ 469; State v. Jones, 29 S. C. 201.

2 See Bates v. Holladay, 31 Mo. App. 169.

3 91 Mo. 19.

4 85 Me. 304.

cently decided by the Maine Supreme Court is instructive upon this point. The proceeding was a libel for the condemnation of certain intoxicating liquors seized upon warrant in room 10 of claimant's hotel. Laura F. Turner, called by the State testified that she occupied a room next to room 10, "and at various times before the seizure had heard the claimant in room 10, with different persons talking about liquors and prices." cross-examination she was asked if she could name any persons so heard in room 10, and answered that she could, and gave the name of one Arthur Merrill as one of the persons she had heard in that room. In his defense claimant called Arthur Merrill and asked him

On

if he was ever in room 10. This question was objected to by the county attorney on the ground that the name of Merrill was called out by the claimant himself from Mrs. Turner, and he could not now contradict her answer. * The court below sustained the objection and excluded the evidence. Said the Supreme Judicial Court: "We think the question was competent. The question put to the witness Turner, was proper and relevant. It related to the subject-matter of her testimony. It did not call out a collateral or irrelevant fact, and the answer was not conclusive on the claimant. Testimony of Merrill, that he was never in room 10, might have some tendency to impair the credit of Mrs. Turner.

The rule is well established that where the witness is impeached, by evidence that he made contradictory statements, it has generally been held competent to support or corroborate the impeached testimony, by showing that the witness had made consistent statements, at other times-competent not as substantive evidence of the truth of such statements but simply to sustain the credibility of the witness.5 And the witness himself is competent to prove the making of such corroborative statements. In an early case in. North Carolina, it was said that no matter

6

5 State v. Rowe, 98 N. C. 629; State v. Parrish, 79 N. C. 610; Hobbs v. State (Ind.), 32 N. E. Rep. 1019, citing Cook v. Curtis, 6 Har. & J. 93; Lessee of Packer v. Gonsalus, 1 Serg. & R. 536; Lessee of Wright v. Dekly, Pet. C. C. 203; People v. Vane, 12 Wend. 78; Dailey v. State, 55 Ind. 169; Hodges v. Bailes, 102 Ind. 494; Dodd v. Moore, 92 Ind. 397; Carter v. Carter, 79 Ind. 466.

6 State v. Rowe, 98 N. C. 629; Hobbs v. State (Ind.), 32 N. E. Rep. 1019.

how the witness' credibility was attacked, whether from the nature of his evidence, from his situation, from bad character, from proof of previous inconsistent statements, or from imputations directed against him in his crossexamination, the party who had introduced him might prove other consistent statements for the purpose of corroborating him and sustaining his credibility.' And so in Vermont it has been held, that while as a rule declarations, made by a witness out of court, are inadmissible, yet there is an exception, when an attempt is made to discredit the witness on the ground that he is under the influence of some motive to make a false statement in consequence of his relation to the party or the cause, and it is then proper to show that he made a similar statement before the relation existed. A case more nearly in point is Brownson v. Leach, decided by the Supreme Court of Michigan. There the plaintiff was asked, upon cross-examination, if he did not testify in justice's court that he met the defendant at his place the day the warranty was claimed, about three or four o'clock p. M. The plaintiff answered that he did not. When the defense had the case several witnesses testified that he did so swear in the justice's court. The plaintiff, in rebuttal, offered one of the jurors, who sat at the trial before the justice who testified that plaintiff did not give such testimony. The admissibility of this evidence in rebuttal was vigorously contested in the the appellate court,

9

A

but it was said: "There⚫ can however be no question as to its competency, under the well known rules of evidence. witness, asked an impeaching question upon cross-examination and answering in the negative can always be supported in rebuttal if any evidence is introduced by the other side, to show his answer untrue." In the Kentucky case of Roberts v. Commonwealth,10 where, on trial for murder, defendant's witness was asked if he were not under indictment for perjury, and answered that he was. The court held it competent, as tending to explain the discrediting circumstance of the 7 March v. Harrell (1854), 1 Jones L. 329.

8 State v. Flint, 60 Vt 304. See, also, to the same effect, Williams v State, 24 Tex. App. 637: Smith v. State, 19 Tex. App. 98. Contra: Davis v. Graham (Colo), 29 Pac. Rep. 1007; Thomp. Trials, § 473, et seq.

9 74 Mich. 713.

10 22 S. W. Rep. 845.

indictment, to show by the witness that certain relatives and friends of the deceased, who were prosecuting the defendant, had also procured it. In Hoover v. Cary, the Iowa court held that where evidence had been introduced to contradict the testimony of a witness on cross-examination, and denying that he had made certain statements out of court, the impeached witness might be recalled to give the version of the conversation named.12 The recent decision of the North Carolina court in State v. Morton, 13 is directly in point. There the case was murder. A witness for the State testified that a few weeks before the homicide he had received an anonymous letter containing threats against deceased, and showing that the writer was jealous of her; that defendant afterwards told him she wrote it, and sent it to the post-office by a colored boy. "The character of the cross-examination manifestly showed a purpose to impeach the witness, and particularly to question the accuracy of what he said in respect to the letter." It was held competent for the State to introduce the testimony of a negro boy that he had, about the time indicated taken a letter to the post-office for the defendant which she told him not to let anybody but a certain person see, for the purpose of corroborating the witness, although it might not have been competent otherwise. In the Massachusetts case of Hewitt v. Cory, the action was by a married woman for the conversion of a horse attached as her husband's property. The issue was whether it belonged to her or to him. He testified in her behalf that he was not the owner. To discredit this testimony it was shown, on cross-examination, that he had formerly included it in a mortgage of personal property given by him, but he added that he did not know that the horse was included when he signed the mortgage and that, as soon as he found out that it was, he went to the mortgagees, and told them that the horse did not belong to him, and ought not to be embraced in the mortgage. This testimony came in without objection, and the defendant made no motion to strike it out as irresponsive or incompetent. Thereupon the mortgagee was permitted to testify, on behalf of plaintiff, in corroboration of this evi

11 53 N. W. Rep. 415.

12 See, also, State v. Claire, 41 La. An. 1067. 13 107 N. C. 890.

14 150 Mass. 445.

dence, that soon after the mortgage was signed and before the attachment, the husband came to him and told him that the horse did not belong to him and ought not to be in the mortgage.

The underlying principle, of all these cases, plainly is that a party shall not be permitted to introduce a new issue, by attacking the credibility of opposing witnesses, without an opportunity being afforded the opposite party of meeting the attack upon the new issue so made.15 The question as made must be fairly put to the jury, who are judges of credibility, with a proper presentation of whatever is pertinent to sustain the issue as to credibility on either side. A somewhat analogous case is Wilkerson v. Eilers, 16 in which the Supreme Court of Missouri recently held that, when plaintiff's counsel had asked defendants' witnesses on cross-examination as to certain statements made in their depositions which were in seeming conflict with those made by them on the trial, it was error to refuse to permit the defendant to read the whole deposition."7

On the other hand it cannot be denied that there are some cases which conflict with these views. The exact point has been ruled, adversely to the doctrines above set out, in Georgia. In Surles v. State, 18 the impeaching witness Walthall had sworn, as a reason that witness Surles' character was not good and why he would not believe him on oath, "that in a case he (Walthall, who was a justice of the peace), had given judgment against said Surles, and he had entered an appeal, and made a pauper affidavit, and immediately went out and bought a cow and took the money out of his pocket and paid for it. The court refused to let Surles testify that he had paid the costs, and had a receipt therefor. The report of this case is unsatisfactory. There is no opinion of the court; only a statement of facts by the reporter, and a syllabus. The paragraph of the latter on this point is "An impeached witness may be sustained by evidence going to his character generally, but not by evidence disproving particular facts brought out on cross-examination of the impeaching witness." But without doubt the great weight

15 114 Mo. 251.

16 See to same effect, Schmick v. Noel, 72 Tex. 1. 17 89 Ga. 167.

of authority sustains the principle stated at the beginning of this article.

WILLIAM L. MURFREE, JR.

ACCORD AND SATISFACTION-WHAT CONSTITUTES-ACCEP PANCE OF PART PAYMENT.

LEESON v. ANDERSON.

Supreme Court of Michigan, March 6, 1894.

1. Where a claim is undisputed, payment of a part thereof furnishes no consideration for a promise by the creditor to wholly discharge the debtor.

2. The creditor need not, before bringing suit for the unpaid balance of the claim, tender a return of the part paid on the attempted settlement. MONTGOMERY, J.: This case presents the question of whether the acceptance, by the holder of a promissory note past due, of a less sum than the face of the note, with an agreement to discharge the debt, operates to fully release the debtor. We are constrained to hold that it does not. The debtor, in paying a portion, only, of the debt, when he is bound to pay the whole, furnishes no consideration for a promise by the creditor to discharge him, and such payment is treated in law as a payment pro tanto only. See 2 Daniel, Neg. Inst. § 1289, and cases cited. See, also, Harrison v. Close, 2 Johns. 448; Ryan v. Ward, 48 N. Y. 206; Bridge Co. v. Murphy, 13 Kan. 40; Sinith v. Schulenberg, 34 Wis. 46; Wheeler v. Wheeler, 11 Vt. 66; Bailey v. Day, 26 Me. 88; Bright v. Coffman, 15 Ind. 371; Headley v. Hackley, 50 Mich. 45, 14 N. W. Rep. 693. See, also, note to Cumber v. Wane, 1 Smith, Lead. Cas. 595 et seq. The result is different if payment is made in compromise of a claim over which there is an honest dispute, or by general composition with creditors, or if the payment be in something other than money. It was contended in the present case that, before suit was brought for the portion remaining unpaid, the plaintiff should have tendered back the amount received, and thus repudiated the settlement; and defendant's counsel cite Pangborn v. Insurance Co., 67 Mich. 683, 35 N. W. Rep. 814, as sustaining this contention. But in that case the plaintiff's only ground for setting aside the settlement was that it was effected by fraud. If there had been no fraud, the settlement was admittedly valid, and effectual to discharge the debt. Such was also the case in Jewett v. Petit, 4 Mich. 508. The settlement, but for the alleged fraud, was good and valid, and it was held that the plaintiff was bound to rescind this transaction before he could treat it as a nullity. But such is not the case here. No fraud was practiced. The defendant has simply failed to pay the amount which he owed, and, under the authorities cited, this was payment pro tanto, leaving the remainder unpaid. The defendant, by paying a portion of his indebtedness, has not been induced to part with any money whic by the obligation of his