(222 S.W.) the insured. Wirt also told the insured that he would attend to the matter of paying the premiums. [4] Under this state of the record the court was justified in finding that Wirt was general agent of the company at Dardanelle, and possessed at least the apparent authority to receive the application for a permit to enlist in the army and to go overseas, given to him by the insured's brothers, and to accept the same. [5] The court was further justified in finding that he had authority to accept such application in the form it was presented to him, and that the brothers of the insured were justified in relying upon his promise in the premises. Therefore the evidence was legally sufficient to justify a finding by the trial court in favor of the plaintiff. [6] Again it is insisted that the court was not warranted in finding in behalf of the plaintiff, because no extra premium was paid as required in case of policy holders who were soldiers in the United States army and had received permits from the company to enter such service and to go overseas and fight in the war with Germany. It will be remembered that the insured was killed in battle in France in July, 1918, and that his second premium was not due until the 22d of August, 1918. In pursuance of the agreement of the insured and his brothers, Wirt charged the amount of the second premium on the books of the merchant with whom he worked to the Bates Bros., and remitted the amount to the company. It is true this was done before any of the parties knew that the insured had been killed in battle, but it was done pursuant to an agreement made by Wirt with both the insured and his brothers. Wirt was the credit man for a mercantile firm in Dardanelle, and had authority to say when and how much money would be paid by the firm for such customer. He agreed with the insured and his brothers to take care of the premiums on his policy, and to pay them to the company and charge the Bates Bros. with them on the books of the mercantile company. Of course, in making the payment to the insurance company, he was acting as agent of the Bates Bros.; but in receiving the money he was acting as agent of the insurance company. The Bates Bros. made an arrangement in advance with the mercantile company to secure the money, and Wirt promised to apply it to the payment of the premiums as they fell due. Both the insured and his brothers were justified in believing that Wirt would pay the second premium when it fell due, and that he would pay the additional prémium under the war risk clause. They had made arrangements for the money with the mercantile firm of which Wirt was the credit man, and he agreed to send the money in to the insurance company. As general agent of the company, he had the authority to receive the money and send it in. The money was there under his control all the time, and he had nothing to do but send it in to the company. Therefore the court was justified in finding that the insured had done all that was necessary for him to do with regard to paying his premium. New York Life Insurance Co. v. Allen, 220 S. W. 803; Sovereign Camp, Woodmen of the World v. Newsom, 219 S. W. 759. It follows that the judgment must be affirmed. Taney county, about 20 miles from where Beck, the owner of the mules, lived. Willis Nave had a son, Perry Nave, who lived in STATE v. NAVE. (No. 21897.) (Supreme Court of Missouri, Division No. 2. the neighborhood of Protem, a few miles June 4, 1920.) from where Beck lived. On Friday, about August 11th, Mack Nave passed Beck's house and watched the house with unusual and unnecessary intentness, according to the The mules disappeared 1. Witnesses 384-Not impeachable by prior contradictory statements as to mere matter of opinion. To impeach a witness by prior contradic-statement of Beck. tory statements, they must be statements of fact pertinent to the issue, and not merely matters of opinion; facts which would be competent evidence independent of inconsistency with the witness' testimony; hence it was error to admit impeaching evidence that accused's father had previously stated in conversation, in accused's absence, that he thought accused had taken the mules he was accused of steal-whether they were fastened up by halters or ing. 2. Larceny 68 (1)-Evidence held insufficient to connect accused with stealing mules. In trial for grand larceny, evidence as to accused's connection with the stealing of mules charged held insufficient to take the question of his guilt to the jury. Appeal from Circuit Court, Taney County; Fred Stewart, Judge. that night. On Sunday two mules with halters on, answering the general description of Beck's mules, were seen in Willis Nave's pasture. It was suggested to Mack Nave that they had better be driven out. He said, "Let the mules get out the way they got in." The witnesses who saw those mules could not tell not. The defendant, Mack Nave, was in the neighborhood of Protem at the time the mules were stolen, and, according to the testimony of his brother, he stayed all night at Perry's house on that night, and remained there until noon the next day. Wayne Moulder, who sold the mules to Stone & Hesterlee two days after they were stolen, was a farm hand in the employ of Willis Nave. When he brought the mules to Ozark he was riding a mule which belonged to Willis Nave; Mack Nave, the defend Mack Nave was convicted of grand larceny, and appeals. Reversed, and defendant dis-ant, told some of the witnesses that he loaned charged. G. W. Thornberry, of Galena, and D. F. McConkey, of Forsyth, for appellant. Frank W. McAllister, Atty. Gen., and George V. Berry, Asst. Atty. Gen., for the State. WHITE, C. The defendant was indicted in the circuit court of Taney county on a charge of grand larceny, was convicted April 24, 1919, and his punishment assessed at two years' imprisonment in the state penitentiary, and appealed. Defendant was charged with stealing two mules that belonged to James Beck. Beck lived just within the state of Arkansas, about three miles from Protem, Mo. On the night of August 11, 1916, which was said by the witnesses to be Friday night, two bay mules belonging to Beck disappeared and he was unable to find them. About six weeks later he learned they were at the barn of Rich Kissee at Ozark, in Christian county. He went there, identified them, and took them away. On Monday following the Friday night on which the mules were stolen they were sold to Stone & Hesterlee by one Wayne Moulder for $160, although at the time they were worth $235. Stone & Hesterlee immediately sold them to Kissee. The facts relied upon by the state to connect the defendant with the theft of the mules briefly are as follows: Mack Nave was a boy about 15 years of age, and lived with his father, Willis Nave, in Moulder that mule to ride Sunday night. As soon as the mules were recovered, the defendant was arrested by the sheriff of Christian county and taken to Ozark. On the way the sheriff stopped at Sparta, in Christian county, where he told his prisoner that he would have to take him before a justice of the peace. He explained to Nave that he would have to have a preliminary trial or else waive it. The defendant did not seem to understand that he would have to go through a preliminary trial, and, after further explanation, he said: "Well, I guess I just as well plead guilty." Other witnesses heard him make the statement in connection with a preliminary hearing. No objection was made to that evidence. The next morning after he was taken to Ozark his father, Willis Nave, having ridden all night to reach Ozark, appeared there and paid Hesterlee $207, the amount the mules had cost Hesterlee with the expense. Hesterlee said he thought after that transaction the matter would be dropped. Beck then took the mules home. Wayne Moulder disappeared about the time the mules did and was not seen in the neighborhood afterwards. On Sunday, when the mules were seen in Willis Nave's pasture, the place was in charge of one Norman Combs, who, it seems, had rented the place. He knew the mules referred to did not belong to Willis Nave. Some other facts are mentioned in the evidence tending to show the movements of Mack Nave and Wayne Moulder in the neigh (222 S.W.) When Willis Nave was on the stand and recalled by the defendant in rebuttal, he was asked this question: borhood Saturday and Sunday after the tody of an officer, a threatened prosecution mules disappeared from Beck's place. for grand larceny impending, with no friend or counsel near to advise him, makes the statement which on its face does not prove he actually participated in taking the mules., It was only an expression of helplessness and despair in the heart of the boy, and, under the circumstances, ought not to be considered as evidence against him. "I will ask you if you didn't have a conversation with Norman Combs in which you said, 'Aint this a good get-off?' and he said, Yes, sir; it is,' and you said, 'What do you think of this?' and he refused to tell you there before the family, and out in the field the next morning you asked him again, 'What do you think about this?' and you told him that you thought Mack had taken the mules." The witness denied making any such state ment. Norman Combs was then 'placed upon the stand and asked if the conversation took place the defendant not present-in substantially the same language as in the question put to Willis Nave. He answered that Nave did make the statement. All this was duly objected to by appellant's counsel and exceptions saved. There is no other fact in the evidence which accomplishes more then to arouse a mere suspicion that he participated in the theft. There is no doubt of the guilt of Wayne Moulder. He took the mules away from the neighborhood of Protem to another county and sold them, got the money, and disappeared. It is not shown that the defendant assisted in any manner in taking the mules away or received any of the proceeds of the sale. He passed Beck's house on the day preceding the night on which the mules were stolen and actually looked at Beck's house with considerable interest. It is saddle horse in that community without inquiring the purpose for which it may be used. If there had been evidence that Mack Nave knew where Moulder was going and what he borrowed the mule for, the evidence of that loan might have some probative force. not even claimed that he looked at the mules [1] 1. The evidence offered and admitted or saw them on that occasion. He loaned to contradict Willis Nave was gross error. Moulder the mule on which he rode the night While a witness may be impeached by show- he took the mules away. It is not shown to ing that he has made statements at other be anything unusual for one to loan a mule or times in contradiction of what he testifies on the stand, contradictory statements, which may be shown for the purpose of impeachment, must be statements of facts pertinent to the issue, and not merely matters of opinion; facts which would be competent evidence independent of any inconsistency with the testimony of the witness. Hamburger v. Rinkel, 164 Mo. 398, loc. cit. 407, 64 S. W. 104; McFadin v. Catron, 120 Mo. 252, loc. cit. 263, 25 S. W. 506; Schloemer v. Transit Co., 204 Mo. loc. cit. 116, 102 S. W. 565; Wojtylak v. Coal Co., 188 Mo. loc. cit. 289, 87 S. W. 506; Herman v. Ry., L., H. & P. Co., 144 Mo. App. loc. cit. 154, 129 S. W. 414. Here the former statement of Willis Nave, which the state was allowed to prove, merely gave his opinion. It is not a statement of any fact within the knowledge of the witness or within the knowledge of Nave. Its damaging character is sufficient to account for the verdict. [2] II. In order to convict it was necessary by competent evidence, to connect the defendant with the commission of the crime. The statement made by the appellant when under arrest that he thought he had better plead guilty was incompetent, but was not objected to. A boy 15 years of age, in cus The mules seen in the pasture of Willis Nave the day after Beck's mules disappeared were not shown to be the stolen mules. That pasture at that time was not in charge of Mack Nave or of his father, Willis Nave, but was in charge of Norman Combs, a witness for the state. It was not shown that the defendant brought the mules there or took them away or had anything to do with them while they were there except to tell some one that they might get out the way they got in. The evidence was entirely insufficient to submit.to the jury the question of the defendant's guilt. The judgment is reversed, and the defendant discharged. RAILEY and MOZLEY, CC., concur. PER CURIAM. The foregoing opinion by WHITE, C., is adopted as the opinion of the court. All the Judges concur. STATE v. JACKSON. (No. 21916.) not error for the court to instruct the jury that the fact that defendant was a postmaster, and had government money and stamps upon or (Supreme Court of Missouri, Division No. 2. about his person, etc., was not a defense. June 4, 1920.) 1. Indictment and information 110(38)-Indictment for carrying concealed weapons following statute held sufficient. An information setting out the crime of carrying concealed weapons in accordance with approved precedents and closely following Rev. St. 1909, § 4496, is sufficient. 2. Criminal law ~~~875(1)—Verdict finding defendant guilty as charged held sufficient. In a prosecution for carrying concealed weapons, a verdict, "We, the jury, find defendant guilty in the manner and form as charged in the information, and assess his punishment," etc., held sufficient in form. 3. Criminal law 1159(2)-Verdict of guilty supported by substantial evidence will not be disturbed. In a prosecution for carrying concealed weapons, it was the duty of the jury to pass upon the facts under the instructions of the court, and, where there was substantial evidence to sustain a verdict of guilty, it should stand. 4. Criminal law 1064 (1)-Assignments that verdict was against evidence, or against law declared in instructions, are too general.. Assignments in a motion for new trial that "the verdict is against the evidence" or that "the verdict is against the law as declared in the instructions given by the court" are too indefinite to require consideration, in view of Rev. St. 1909, § 1841, requiring motions to be specific. 5. Criminal law 901-Demurrer to state's evidence is waived where defendant introduces evidence and rebuttal evidence follows. Defendant in a criminal case, having put before the jury his own evidence, and rebuttal testimony having been introduced, waived his right to be heard on the overruling of his original demurrer to the evidence filed at the close of the state's evidence in chief. 6. Criminal law 752-Overruling of -demurrer not error where verdict is supported by substantial evidence. If defendant filed a demurrer to the evidence at the conclusion of the whole case, the court would have been justified in overruling it, since there was substantial evidence offered at the trial sustaining the verdict of guilty. 7. Weapons 17(5)-Intention in carrying pistol concealed held for jury. In a prosecution for carrying a concealed weapon, it was a question for the jury as to whether defendant intentionally carried his pistol concealed. 8. Weapons 11(1⁄2)—That defendant was a postmaster and had government money and stamps did not excuse carrying concealed weapon. In a prosecution for carrying concealed weapons, under Rev. St. 1909, & 4496, it was 9. Criminal law 1129(3)-General assignment as to rulings on evidence will be overruled where record shows no error. In a criminal prosecution, where an assignment of error alleging admission of incompetent, illegal, and irrelevant testimony offered by the state over defendant's objection does not point out the specific objectionable evidence, and where the record does not show erroneous adverse rulings in such respect, the assignment will be overruled. 10. Criminal law 1 655(2)—Remark by court that accused as postmaster had no right to carry concealed weapon to protect government funds held proper. In a prosecution for carrying concealed weapons, where defendant was asked if he was not under bond to protect government funds, which was objected to as immaterial, the court's remark that "it don't give him any authority to carry a pistol," and further that "the law says he shall not carry it concealed except on certain conditions, and the intention don't make any difference," and a further statement that the law points out the conditions under which fendant was attempting an excuse because he one may carry a concealed weapon, where dewas postmaster and had government funds on his person, held proper. II. Criminal law 720 (2)-Assertion of prosecuting attorney held supported by evidence. In a prosecution for carrying concealed weapons, an interruption of the prosecuting attorney when he stated that the prosecuting witness said that something fell to the ground during the scuffle between himself and defendant, objecting that there was not such testimony, is without merit, where the prosecuting witness had testified as to defendant's picking up something from the ground and not knowing where defendant got the pistol. Statement of 12. Criminal law 720(7) In a prosecution for carrying concealed weapons, a remark of the prosecuting attorney that defendant tore his pocket in trying to get his pistol out held proper, as counsel's opinion, where witness testified that the pocket was torn after defendant put his hand in his pocket, it being the province of the jury to determine the facts from the evidence supporting such contention. 13. Criminal law 728(1)-Court need not permit interruption of prosecuting attorney's argument by trivial objections. While it is the duty of the trial court to protect a defendant charged with crime from improper remarks, calculated to prejudice the jury against him, yet, on the other hand, trivial objections interrupting the prosecuting attorney's argument, made for the purpose of breaking the force of his remarks to the jury, should not be tolerated. Appeal from Circuit Court, County; R. A. Breuer, Judge. (222 S.W.) John H. Jackson was convicted of carry ing concealed weapons, and, after overruling of his motion for new trial, he appeals. Affirmed. Gasconade jant followed, discharging the pistol five times, firing each shot in Bodendick's direction. The first went through his "pants," and one of the others through his "shirt." ter at Bland, and Bodendick's wife had told It appears that defendant was the postmashim that defendant had ejected his (the witness') daughter twice from the post office. One witness testified that defendant was not a sheriff, constable, police officer, or any officer authorized to execute process or make a criminal arrest, and several other witnesses who were present and saw the encounter testified that they did not at any time see a gun or pistol until after defendant had picked one up from the ground, and their testimony as to the other incidents are substantially as outlined above. On July 14, 1919, the prosecuting attorney of Gasconade county, Mo., filed in the circuit court of said county a verified information charging defendant with the crime of carrying a concealed weapon. The information, without caption and jurat, is as follows: "J. W. Hensley, prosecuting attorney within and for the county of Gasconade, in the state of Missouri, informs the court upon the sworn complaint of Fred. Bodendick that on the 29th day of May, 1919, at and in the county of Gasconade, in the state of Missouri, John H. Jackson, not being then and there a legally qualified sheriff, police officer, or other person whose bona fide duty it was to execute process, civil or criminal, make arrests or aid in conserving the public peace, and, not being then and there traveling in a continuous journey peaceably through the state of Missouri, did unlawfully and feloniously carry concealed about his person a certain deadly and dangerous weapon, to wit, a revolving pistol, against the peace and dignity of the state. J. W. Hensley, Prosecuting attorney of Gasconade county, Mo." On September 8, 1919, defendant was properly arraigned and entered his plea of not guilty. At the conclusion of respondent's evidence in chief, the defendant asked, and the court refused, the following instruction: "The court instructs the jury that, under the law and the evidence in this case, you should find the defendant not guilty." An exception was saved to this ruling. The evidence on the part of the defendant tends to show that he was the postmaster at Bland, and on the evening of the 29th of May, 1919, he closed the post office about 7 o'clock, and, not having a safe in the office, he placed the money, stamps, and money orders in his pocket to take home for safekeeping, as it was his custom to do. He also The evidence on the part of the state tends placed in his right-hand outside coat pocket to show that on the evening of May 29, 1919, his pistol, and, as he states, the lapel of the Fred Bodendick, prosecuting witness in this pocket of his coat was turned in, and the case, arriving in Bland, Gasconade county, pistol not concealed. He had recently bought of this state, from Hermann, also in this an automobile from Mr. Neese, the cashier state, went directly to the light plant and of the Commercial Bank, and had made an garage to see one Coonie Miller, relative to appointment with him to test the car out, a trip back to Hermann next day. Upon to ascertain whether or not it was in good arriving at the light plant and garage, he running condition. The defendant was insaw the defendant, John H. Jackson, in the tending to make a trip to New Salem the act of filling one of the tires of his car which next day. After the ride, and after Mr. he had there with air. Defendant finished, Neese had left him, he went to the garage to put on his coat, and walked around to the fill one of the tires of the car with air, inback of the car, met Bodendick, who said tending to leave immediately for his home. to him, "You have been running over the After filling the tire, he put on his coat, and family, and probably you want to run over noticed the butt of the pistol protruding from me," whereupon he struck defendant, and de- his pocket. After putting on his coat, and fendant ran his hand in his right outside after he started to get into the car, he nopocket. Bodendick, seeing this action, took ticed the valve cap of the air stem on the hold of defendant, and they scuffled until, ground and stooped to put it on. While doBodendick says, defendant said he had ing this, he heard Bodendick, or some one enough. During this altercation Bodendick else, say something, turned his head, and saw did not see defendant with a pistol, nor did that it was Bodendick, who immediately he know that he had one, although while kicked him while he was still in this posithey were scuffling he felt something in de- tion. He grabbed Bodendick by the leg, and fendant's pocket. After the scuffle they both was "slung" loose and kicked in the ribs walked back toward the car, and at this twice more. Defendant again "grabbed" Botime defendant reached down and picked dendick's leg, and they both fell in a nearsomething from the ground. Bodendick saw by ditch, and as they crawled out Bodendick, that defendant had a gun or pistol, and at- being somewhat ahead of defendant, started tempted to "grab" his hand. Defendant fir- to pick up something, and, as defendant said, ed, and Bodendick turned and ran. Defend-made some threatening remark, just what it |