(288 S.W.) "The accident occurred on the platform in the train sheds between tracks 30 and 31, which run north and south. Track 31 is east of 30. The south end of the platform has an incline of 14 inches in 5 feet. At the south end of the train sheds the tracks curve decidedly to the west, while about 15 feet south of the sheds there is a walk or 'high line' leading from the east to the west, which enables the employees to go from one side of the sheds to the other. "A mail car was standing on track 30 at the extreme south end of the sheds, and just opposite it on track 31 was an express car extending out upon the curved portion of the track. Plaintiff was engaged in placing mail in the mail car from a truck which stood at the north door of the car. Immediately north of this truck stood an empty truck of solid steel construction, about 15 feet long and 4 feet wide, and weighing about 1,000 pounds. There was another truck load of mail at the south door of the mail car, while alongside of the car on track 31 was an express truck, standing about 8 feet south of the truck which plaintiff was unloading. The platform at this point was about 15 feet wide, and was congested with mail and express, due to the Christmas rush. "While plaintiff was unloading the mail truck at the north end of the mail car, Mr. Rubenthal, defendant's general foreman, ordered him to move the empty truck and take it over the 'high line.' No specific route was designated, but the only way that it was possible to move the truck was to pull it south on the platform. In compliance with this order, plaintiff first pushed the empty truck slightly north and then turned it towards the east in order to get it from behind the mail truck he had been unloading. He then pulled it south until he reached the express truck standing by the car on track 31, when he attempted to veer his course to the west to avoid the express truck. It was then necessary that he turn his truck back towards the east so as to pass the mail truck standing at the south door of the mail car, and then pull it once more to the west to avoid the end of the express car projecting out upon the curved portion of the track. In pulling the truck down the sloping platform, plaintiff was required to hold it back to prevent it from gaining too much speed.. "As plaintiff attempted to turn the truck to the west, to clear the express truck, the rear end caught on the express truck, with the result that he was no longer able to guide it. The truck came on down the incline, and, to avoid being caught between it and the express car, plaintiff jumped, keeping his right hand on the end of the truck to push himself away. As the truck ran into the express car, plaintiff's body was in the clear, but his thumb was caught and crushed by the impact. "Plaintiff had been in defendant's employ for 3 years, and was familiar with the work connected with handling mail. Four days before he was injured he had been made a subforeman. "Inasmuch as the trial court directed a verdict for defendant at the close of plaintiff's case, this appeal is necessarily confined to the question of the propriety of the demurrer to the evidence. "Plaintiff argues that there was sufficient evi dence to take the case to the jury upon the issue of defendant's alleged negligence in failing to furnish plaintiff a safe place in which to work and upon the question of defendant's negligent order. Defendant, on the other hand, contends that the platform was reasonably safe; that the order of Rubenthal was not a negligent one; and that the injuries to plaintiff were the result of the manner in which he saw fit to handle the truck. "The Supreme Court, in the case of Forbes v. Dunnavant, 198 Mo. 193, loc. cit. 209, 95 S. W. 934 [938], has well said: "By this view, we start with the postulate that a servant is presumed to possess not only common sense, but certain knowledge peculiar to his trade or art. The master may be presumed to hire not only the bodily services of the servant (his hands, eyes, ears, muscles, and legs), but the skill and knowledge pertaining to the servant's art or trade and possessed by the latter.' His "In the case at bar there was no unusual condition prevailing upon the station platform where plaintiff was required to work, save for the accumulation of considerable mail and express due to the rush of the Christmas season. There were no latent defects. Everything upon the platform was visible to plaintiff, who was walking ahead of the truck, pulling it in the customary manner. The work he was doing when injured was of the simplest character. knowledge of his work was equal, if not superior, to that of his master. He was familiar with the trucks and the platform. He was an adult, intelligent and experienced, and had recently been made a subforeman. When ordered to move the truck, he did not object; nor did he make any suggestion that the other trucks should be moved. The truck was solely under his control and its movement in safety depended upon the manner in which he guided it. In view of these facts, we think that no negligence on the part of defendant was shown, and that the demurrer to the evidence was properly sustained. Zitzmann v. Glueck Box Co. (Mo. Sup.) 276 S. W. 23; Mathis v. Kansas City Stock Yards Co., 185 Mo. 434, 84 S. W. 66; Blundell v. Elevator Manufacturing Co., 189 Mo. 552, 88 S. W. 103; Forbes v. Dunnavant, supra; Korpall v. Atlas Welding & Cutting Co. (Mo. App.) 253 S. W. 506; Pulley v. Standard Oil Co., 136 Mo. App. 172, 116 S. W. 430." Relator does not agree with the Court of Appeals as to its conclusions of fact, namely: "There was no unusual condition prevailing upon the station platform where plaintiff was required to work. * There were no latent defects." He insists, on contrary, that there was a hidden defect, a lurking peril of some kind, which would have disclosed itself to the master, had he made a proper examination or inspection of the place before giving plaintiff the order to move the truck. He asks us, therefore, in effect, to review the evidence, draw the correct conclusions of fact, and apply thereto the appropriate rule of decision. [1-3] It seems to be difficult to convince some of our brethern of the bar that the Courts of Appeals of this state are courts of last resort; that within their several jurisdictions they are just as supreme as we are in ours. The ascertainment of facts as a judgment for defendant, plaintiff appeals. Case transferred to Court of Appeals. Roy W. Rucker, of Sedalia, for appellant. H. B. Shain and Paul Barnett, both of Sedalia, for respondent. North T. Gentry, Atty. Gen., amicus curiæ. prerequisite to the application of the law is voucher of his official court reporter. From a necessary incident of the jurisdiction conferred upon them. The ascertainment of the facts of a given case being wholly within the competence of the Court of Appeals, upon a review of its decision in a certiorari proceeding, we are bound by its conclusions in that respect; our power under the Constitution is limited to determining whether it has applied to such facts the same rule of decision which we have applied in our previous rulings to the same or a similar state of facts. Thereby the constitutional purpose of securing and preserving uniformity in the general law is fully subserved. [4] The decision of the Court of Appeals in the case under review, upon the facts in judgment, is in complete harmony with our rulings, as the eases cited by the court show. It follows that our writ must be quashed. It is so ordered. All concur, except GRAVES, J., absent. STATE ex rel. RUCKER, Pros. Atty., v. April 9, 1926.) 1. Appeal and error 23-It is duty of Supreme Court to determine its appellate jurisdiction, even though it has not been challenged. Though appellate jurisdiction of Supreme Court has been challenged by neither appellant nor respondent, it is duty of Supreme Court to determine that question. 2. Courts 231(1). Appellate jurisdiction of Supreme Court is limited to classes of cases specified in Const. art. 6, § 12. 3. Courts 231 (5)-Circuit judges are not "state officers" so as to give Supreme Court Jurisdiction (Const. art. 6, § 12). Circuit judges are not "state officers," within Const. art. 6, § 12, giving Supreme Court jurisdiction when state officer is a party, since state officers are those whose official duties and functions are co-extensive with boundaries of the state. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, State Officer.] Graves, J., dissenting. Appeal from Circuit Court, Pettis County; Robert M. Reynolds, Special Judge. Action by the State, at the relation of Roy W. Rucker, Prosecuting Attorney of Pettis County, to enjoin Dimmitt Hoffman, as Circuit Judge, from approving monthly salary BLAIR, C. J. This is an action instituted in the circuit court of Pettis county, whereby the prosecuting attorney of that county sought to enjoin the judge of the Thirtieth judicial circuit, comprising said county, from approving the monthly salary voucher of his official court reporter in an amount exceeding the rate of $2,000 per annum. Hon. Robert M. Reynolds, regular judge of an adjoining circuit, was called in as special judge, and tried the case. Judgment went for defendant denying such injunction, and plaintiff was granted an appeal to this court. An agreed statement of facts was filed in the trial court as follows: "It is stipulated and agreed by and between the parties hereto: "That plaintiff is the duly elected, qualified, and acting prosecuting attorney of Pettis county, Mo. That defendant is the duly elected, qualified, and acting judge of the Thirtieth judicial circuit of Missouri, and that defendant has been judge of said circuit since the 1st day of January, 1923. That the Thirtieth judicial circuit of Missouri consists of the county of Pettis. That the population of the Thirtieth judicial circuit of Missouri, as disclosed by the federal decennial census of 1920, is 35,813. That there were cast at the last general election in Pettis county, Mo., more than 15,000 votes. That Roy Snyder was duly appointed by Hon. Dimmitt Hoffman, judge, as the official court reporter of the Thirtieth judicial circuit of Missouri, in January, 1923. That, since the appointment of said Roy Snyder as official Court reporter of said circuit, Hon. Dimmitt each month as said judge, directing the treasHoffman, judge, has been issuing certificates urer of Pettis county, Mo., to pay the said Roy Snyder, as his salary as official reporter of said circuit, the sum of $208.33 monthly, or on the basis of an annual salary of $2,500. That Hon. Dimmitt Hoffman, judge, has continued to isrecting the treasurer of Pettis county, Mo., to sue certificates each month, as said judge, dipay the said Roy Snyder, as his salary as offimonthly, since the institution of this suit, and cial reporter of said court, the sum of $208.33 that, unless restrained from so doing, the Hon. Dimmitt Hoffman, judge, will continue to issue said certificates in the sum of $208.33 each month." [1] Although neither appellant nor respondent has challenged our appellate jurisdiction in this case, it is our duty to determine that question for ourselves. Bennett v. Bennett (Mo. Sup.) 243 S. W. 769; In re Letcher, 190 S. W. 19, 269 Mo. 140, loc. cit. 147. [2, 3] The appellate jurisdiction of this court is limited to the classes of cases speci (288 S.W.) fied in article 6, § 12, of the Constitution. In | reached this court, it took jurisdiction of the all other cases where appeals are taken from appeal without considering the question of its judgments of circuit courts, appellate juris- jurisdiction, and disposed of the case upon diction is lodged in the Courts of Appeals. its merits. See State ex rel. Albers v. Horner, The only possible ground upon which we 86 Mo. 71. That case was decided by this could retain appellate jurisdiction of the case court in 1885. The case of State ex rel. now before us is to hold that respondent Holmes v. Dillon, supra, was decided in 1886. judge of the circuit court is a state officer It was in the latter case that this court first within the meaning of said article 6, sec- announced the rule, adhered to ever since, tion 12. that an officer is not a state officer within the meaning of article 6, § 12, of the Constitution, unless his official duties and functions are co-extensive with the boundaries of the state. No reason can be urged in favor of our jurisdiction in this case which would not have been equally persuasive in State ex rel. Foerstel v. Higgins, supra. The case of State ex rel. Albers v. Horner, 10 Mo. App. 307, must therefore be regarded as overruled by the subsequent decisions of this court upon the same subject. In State ex rel. Holmes v. Dillon, 2 S. W. 417, 419, 90 Mo. 229, at page 233, this court held that "We are of the opinion that the words 'state officer,' as used in the Constitution, are to be understood as having been used by the framers of the Constitution in their popular sense, and were intended only to refer to such officers whose official duties and functions are coextensive with the boundaries of the state." This ruling has ever since been consistently approved and followed by this court in a number of decisions, although in none of them was a circuit judge a party to the suit. See State ex rel. Bender v. Spencer, 3 S. W. 410, 91 Mo. 206; State ex rel. Frisby v. Hill, 53 S. W. 1062, 152 Mo. 234, loc. cit. 239; State ex rel. Blakemore v. Rombauer, 14 S. W. 726, 101 Mo. 499, loc. cit. 502; Nickelson v. City of Hardin, 221 S. W. 358, 282 Mo. 198, loc. cit. 201; State ex rel. Foerstel v. Higgins, 46 S. W. 423, 144 Mo. 410; State ex rel. Conway v. Hiller, 180 S. W. 538, 266 Mo. 242, loc. cit. 262. In State ex rel. v. Higgins, supra, the members of the board of election commissioners of the city of St. Louis were parties. The case came here on appeal, and we transferred same to the St. Louis Court of Appeals, because the members of that board were not state officers within the meaning of article 6, section 12. The members of that board were appointed by state authority, and in that sense were state officers to the same extent as circuit judges are. The only case we have found where the circuit judge was held to be a state officer under article 6, section 12, is State ex rel. Albers v. Horner, 10 Mo. App. 307, loc. cit. 315. That was an original proceeding in mandamus in the St. Louis Court of Appeals to compel a circuit judge to enter judgment upon a verdict in his court. The Court of Appeals issued its peremptory writ, but granted the respondent judge an appeal to this court, invoking the provisions of article 6, section 12, where "any state officer is a party," and, in granting such appeal, said: "The respondent, as judge of the St. Louis circuit court, is unquestionably a state officer within the meaning of this provision." When the case 288 S.W.-2 In one sense circuit judges are state officers. Most of them are elected from circuits comprising two or more counties. They receive their compensation as judges from the state treasury. But their jurisdiction is confined to holding court in the counties comprising their respective circuits. Their jurisdiction, official duties, and functions are not co-extensive with the boundaries of the state. Under some circumstances process may be issued out of a given circuit court which may be executed in any county of the state to which such process is directed, but the judge of such court has no duties, functions, or jurisdiction in counties outside of his circuit. He may even, under some circumstances, be called to sit as judge in any other circuit; but, when he so acts, he occupies the status of such other circuit judge, and not the status of judge of his own circuit. He has no duties or functions as such judge which are co-extensive with the boundaries of the state. Our conclusion is that, when a circuit judge in his official capacity is made a party to a suit in the circuit court, and an appeal is taken in such case, and no other constitutional grounds giving this court appellate jurisdiction under article 6, section 12, exist, such judge cannot be regarded as a state officer within the meaning of said section of the Constitution, and appellate jurisdiction in such case is vested in the appropriate court of appeals. It is therefore ordered that this case be transferred to the Kansas City Court of Appeals. All concur, except GRAVES, J., who dissents. OTTO, J., not sitting. (No. 26597.) Munger & Munger and J. W. Farris, all of Bloomfield, for appellant. STATE v. WHITE. North T. Gentry, Atty. Gen., and Harry (Supreme Court of Missouri, in Banc. Nov. 23, L. Thomas and A. B. Lovan, Sp. Assts. Atty. 1926.) 1. Rape 34 (1)—Information charging assault with intent to commit rape held sufficient (Rev. St. 1919, § 3263). Information charging that defendant on or about certain date, in and upon prosecutrix, unlawfully and feloniously made assault, with intent her, the prosecutrix, unlawfully, forcibly, and against her will feloniously to ravish and carnally know held sufficient, under Rev. St. 1919, § 3263. 2. Criminal law 1087 (2)-Where record proper did not show that bill of exceptions had been legally filed in lower court, containing application for continuance, ruling thereon, and exception, appellate court could not review court's action in overruling application. Appellate court could not review court's action in overruling application for continuance, where record proper did not show that bill of exceptions had been legally filed in lower court containing application for continuance, ruling of court thereon, and an exception to action of court, but merely showed application for continuance and overruling of same. 3. Criminal law 1104(4)-Circuit clerk is not authorized to send original bill of exceptions to appellate court (Rev. St. 1919, 84103, and section 4102, as amended by Laws 1925, p. 199). Law does not authorize circuit clerk to send to appellate court original bill of exceptions, in view of Rev. St. 1919, § 4103, and section 4102, as amended by Laws 1925, p. 199. 4. Criminal law 1092 (14)-Bill of exceptions, containing no certificate of circuit clerk as to genuineness, and authenticity could not be considered on appeal (Rev. St. 1919, § 4103, and section 4102, as amended by Laws 1925, p. 199). Where bill of exceptions, which contained no certificate of circuit clerk as to its genuineness, correctness, or authenticity, was filed in appellate court, and original transcript of record proper did not show that any bill of exceptions was ever filed in lower court, bill of exceptions could not be considered on appeal, in view of Rev. St. 1919, § 4103, and section 4102, as amended by Laws 1925, p. 199. 5. Criminal law 1095-With bill of exceptions eliminated, Supreme Court's duty was to examine record proper for error. Where bill of exceptions was not properly authenticated and could not be considered, it became duty of Supreme Court to examine record proper in order to determine whether error existed therein. White, J., dissenting. Gen., for the State. Statement. RAILEY, C. On February 25, 1924, the prosecuting attorney of Stoddard county, Mo., filed in the circuit court of said county a verified information, which, without caption and jurat, reads as follows: "Comes now C. A. Powell, prosecuting attorney within and for Stoddard county, Mo., and upon his oath of office, upon his information and belief, informs the court and charges that at and in Stoddard county, Mo., on or about the 18th day of November, 1923, William White, in and upon one Velma Jackson unlawfully and feloniously, did make an assault with intent her, the said Velma Jackson, then and there unlawfully, forcibly, and against her will, feloniously to ravish and carnally know; against the peace and dignity of the state. ,"C. A. Powell, Prosecuting Attorney." The appellant, in his brief on file in this court (pages 1 and 2), alleges: That the cause originated in Stoddard county, Mo.; that a change of venue was granted him, and the cause sent to the circuit court of Mississippi county, Mo., where it was tried before Judge Kelly and a jury; that defendant was charged in the information, with assault with intent to rape; that the verdict was adverse to defendant, and he was sentenced, in accordance with the verdict, to pay a fine of $100 and to be incarcerated in the county jail for three months; that, from the above conviction and sentence, the defendant has prosecuted his appeal to this [1] I. The information heretofore set out is sufficient as to both form and substance. Section 3263, R. S. 1919; State v. Neal, 178 Mo. loc. cit. 69, 76 S. W. 958; State v. Payne, 194 Mo. loc. cit. 443, 444, 92 S. W. 461; State v. Comer, 296 Mo. loc. cit. 7, 247 S. W. 179. [2] II. Appellant assigns as error the action of the trial court in overruling his application for a continuance. The record proper shows the filing of such Appeal from Circuit Court, Mississippi an application and the overruling of same. County; Frank Kelly, Judge. Willie White was convicted of assault with intent to rape, and he appeals. Affirmed. In order to review the action of the court in overruling said application, it would have to appear from the record proper that a bill of (288 S.W.) exceptions had been legally filed in the court below containing the application for a continuance, the ruling of the court thereon, and an exception to the action of the court in overruling said application. State v. Baugh (Mo. Sup.) 217 S. W. loc. cit. 280, and numerous cases cited; State v. Dickey, 288 Mo. 92, 231 S. W. loc. cit. 584; Kline Cloak & Suit Co. v. Morris, 293 Mo. 478, 240 S. W. loc. cit. 100; State v. Langford, 293 Mo. 436, 240 S. W. loc. cit. 168; State v. Barker, 294 Mo. 303, 242 S. W. loc. cit. 410; State v. Sanders, 299 Mo. 192, 252 S. W. loc. cit. 634; State v. Smith (Mo. Sup.) 256 S. W. loc. cit. 1027; State v. Sadowski (Mo. Sup.) 256 S. W. loc. cit. 755. As shown by the record proper, the judgment was rendered and sentence pronounced in this case on August 1, 1924. On August 5, 1925, there was filed in this court a bill of exceptions purporting to have been signed by Judge Frank Kelly, who tried the case. It contains no certificate of the circuit clerk as to its genuineness, correctness, or authenticity. The original transcript of the record proper does not show that any bill of excep tions was ever filed in the case. On October 15, 1925, counsel for appellant filed in this court, as part of their suggestions in opposition to the state's motion to dismiss the ap peal, an Exhibit D, which is a certificate of the circuit clerk of Mississippi county, to the effect that a bill of exceptions was filed in this cause on July 28, 1925, as shown by the record of said circuit court. The above certificate does not show that the bill of exceptions on file here is the one mentioned therein, nor does it refer to the bill here or certify that it is a true copy of the one alleged to have been filed. Section 4102, R. S. 1919, as amended by the Acts of 1925, p. 199, provides that: "When any appeal shall be taken or writ of error issued, which shall operate as a stay of proceedings it shall be the duty of the clerk of the court in which the proceedings were had to make out a full transcript of the record in the cause including the bill of exceptions. judgment and sentence, and certify and transmit same to the office of the clerk of the proper appellate court without delay." etc. (Italics ours.) Section 4103, R. S. 1919, provides that: "When the appeal or writ of error does not operate as a stay of proceedings, such transcript shall be made out, certified and returned, on the application of the appellant or plaintiff in error, as in civil cases, except that the costs of the transcript shall not be required in advance." (Italics ours.) [3-5] The law does not authorize the circuit clerk to send to the appellate court the original bill of exceptions, and, if he did so, he would be in contempt of the trial court for so doing. The bill of exceptions in this case does not prove itself, and, in the absence of a certificate of the circuit clerk as to its authenticity and correctness, we are precluded from considering same in passing upon the merits of the case. State v. Brown (Mo. Sup.) 279 S. W. 98; State v. Keyger (Mo. Sup.) 253 S. W. loc. cit. 364; State v Little (Mo. Sup.) 248 S. W. 926; Bower v. Daniel, 198 Mo. loc. cit. 317, 318, 95 S. W. 347; St. Charles ex rel. v. Deemar, 174 Mo. 122, 73 S. W. 469; Butler County v. Graddy, 152 Mo. 441, 54 S. W. 219; Ricketts v. Hart, 150 Mo. 64, 51 S. W. 825; Lawson v. Mills, 150 Mo. 428, 51 S. W. 678; Western S. & W. Co. v. Glasner, 150 Mo. 426, 52 S. W. 237; Walser v. Wear, 128 Mo. 652, 31 S. W. 37; Pope v. Thomson, 66 Mo. 661; McGrew v. Foster, 66 Mo. 30. With the bill of exceptions eliminated from our consideration, it becomes our duty to examine the rec ord proper in order to determine whether error exists therein. State v. Keller, 304 Mo. 63, 263 S. W. loc. cit. 172; State v. Keyger (Mo. Sup.) 253 S. W. 363; State v. Whalen, 297 Mo. 241, 248 S. W. 932, 933; State v. Little (Mo. Sup.) 248 S. W. 926, 927; State v. Baird, 297 Mo. 219, 248 S. W. 596; State v. Smith, 284 Mo. loc. cit. 175, 223 S. W. loc. cit. 751. The information is sufficient as to both form and substance, as heretofore stated. There being no error in the record proper of which defendant can legally complain, the judgment below is accordingly affirmed. HIGBEE, C., concurs. PER CURIAM. The foregoing opinion of RAILEY, C., is adopted as the opinion of the court. All of the judges concur, except WHITE, J., who dissents. PER CURIAM. The foregoing opinion of RAILEY, C., is adopted as the opinion of the court in Banc. BLAIR. C. J., and RAGLAND, WALKER, and ATWOOD, JJ., concur. WHITE, J., dissents. GRAVES, J., absent. OTTO, J., not sitting. |