(6) The fact that Schilling's alleged statements were included in an ex parte affidavit, rather than being mere unsworn oral or written statements, does not affect their character as hearsay. Patterson v. Fagan, 38 Mo. 70; Bank of Odessa v. Jennings, 18 Mo. App. 651; 22 C.J., p. 207, sec. 168. (7) The alleged affidavit of Schilling, in several respects, does not meet the requirements of a declaration of facts against interest, so as to be admissible under the exception to the hearsay rule relating to such declarations. 31 C.J.S., p. 959, sec. 217. (8) The statements made in Schilling's alleged affidavit did not relate to facts against any pecuniary or proprietary interests of his existing at the time such statements were made.
Mueller v. Dreibelbis, 229 S.W. 240; Duncan v. Frank, 8 Mo. App. 286; Colter v. Luke, 129 Mo. App. 702; Grocery Co. v. Monroe, 142 Mo. 165. The statute is strictly construed; the burden is on respondent at all points, and all doubt must be resolved in favor of the liberty of the citizen. Burnett v. Prince, 272 Mo. 76; Mueller v. Dreibelbis, 229 S.W. 240; Ex parte Mallinkrodt, 20 Mo. 493; Patterson v. Fagan, 38 Mo. 70. Douglas W. Robert for respondent.
This because: (a) The alterations and changes appearing on the face of the bond sued on in first count of the petition are of the character designated by the courts as suspicious, requiring the party offering and relying upon the instrument to give a sufficient explanation as to how and when the alterations and changes became incorporated in the instrument, before same is admissible in evidence; and even if admitted in evidence by the court without evidence being offered explanatory of the alterations and changes, no case was made for the jury on the first count of plaintiff's petition. Kircher v. Dunnington, 29 S.W.2d 138; Collision v. Norman, 191 S.W. 62; Cox v. Migneri Co., 126 Mo. App. 682; Lumber Co. v. Tie Co., 89 Mo. App. 560; Patterson v. Fagan, 38 Mo. 84; Price v. Edwards, 11 Mo. 534; State ex rel. v. Chick, 146 Mo. 657; Powell v. Banks, 146 Mo. 643; 1 R.C.L. 969; 2 C.J. 1189; State v. McConigle, 101 Mo. 365; Riseden v. Harrison, 42 S.W. 888; Brady v. Coal Mining Co., 106 F. 824. (b) Assuming that the bond was admissible in evidence in its altered form (which defendants deny, but assume merely for the purpose of this point), such admission could only be justified on the theory that a presumption would be indulged that the alterations and changes were made prior to, or at the time of, the signing of same by appellants. Such presumption took flight upon the proof offered by appellants, denying execution of the instrument in its altered form, and the further testimony of the Cashier, Jones, positively fixing the time of the alterations and changes as subsequent to the signing and filing of the bond. It then became respondent's duty to come forward with evidence in rebuttal, fixing the time of the alterations and change in the bond as eit
(1) Exhibits E and F, offered and read in evidence by the State were simply the statements made by persons not in attendance as witnesses. This evidence was pure hearsay and should have been rejected. State v. Wright, 4 S.W.2d 458; State v. Sutton, 64 Mo. 107; State v. Howe, 287 Mo. 10; Moore v. Frisco Railroad, 143 Mo. App. 675; Currey v. Lackey, 35 Mo. 389; Patterson v. Fagan, 38 Mo. 70. (2) A wide range of cross-examination should be allowed, both in civil and criminal cases, to show the motive, interest or animus of the witness. State v. Decker, 161 Mo. App. 396; State v. Elkins, 101 Mo. 344. (3) It is the law that before a conviction may be warranted the evidence should be clear that a crime has actually been committed; that if there be no evidence tending to prove guilt or it is plainly insufficient to justify a verdict, it is the duty of the court to so declare. State v. Daubert, 42 Mo. 242.
Said instruction further permitted the jury to find that the bond sued on in its altered form was accepted by the county court without any evidence whatsoever upon which to base such a finding. Chapman v. Creosoting Co., 286 S.W. 840; Campbell v. Myers, 287 S.W. 846; Stahlberg v. Brandes, 299 S.W. 838. (2) The court erred in refusing defendants' requested instructions numbered 11D, 13d 16D and 19D, offered at the close of the whole case, and in the nature of demurrers to the evidence, and in refusing defendants' requested Instruction 23D. (a) The court erred in admitting in evidence the bond sued on without any evidence of the time when the alterations appearing in the face of the bond, and shown to be in a different character of writing from the body of the instrument and changing materially the terms of the instrument, were made. Collison v. Norman, 191 S.W. 62; Cox v. Migneri Co., 126 Mo. App. 682; Lumber Company v. Tie Co., 89 Mo. App. 560; Patterson v. Fagan, 38 Mo. 84; State ex rel. v. Chick, 146 Mo. 657; Powell v. Manks, 146 Mo. 643; 1 R.C.L. 969; 2 C.J. 1189; State v. McConigle, 101 Mo. 365. (b) Even assuming the bond was admissible in evidence in its altered form, on the theory that a presumption might be indulged that the alterations and changes were made prior to the signing of same by defendant sureties, yet such presumption faded upon the proof offered in the cause as to when the alterations and changes were in fact made, and there was no substantial evidence in the cause upon which to submit Count One to the jury. Guthrie v. Holmes, 198 S.W. 858, 272 Mo. 233; Tetwiler v. Railroad, 242 Mo. 194; Mockowik v. Railroad, 196 Mo. 571; Sowders v. Railroad, 127 Mo. App. 124; Advertising Co. v. Publishing Co., 146 Mo. App. 103; Schaub v. Railroad, 133 Mo. App. 450.
The verified motion, as evidence, was neither more nor less than a voluntary affidavit and as such was inadmissible. [Patterson v. Fagan, 38 Mo. 70; Patterson v. Maryland Insurance Co., 5 Am. Dec. 420.] II. The issues tendered by the motion called for the determination of questions of title and possibly of fraud. It was alleged that: "the title to the land levied upon under said execution is held by the defendant and his wife, Elizabeth L. Brown, as an estate by the entirety, and is not subject to seizure and sale under execution for the debts of husband-defendant alone, . . . said real estate being purchased from funds furnished by both the defendant and his said wife."
State ex rel. v. Goodier, 195 Mo. 551, 559. (3) Sec. 5443, R.S. 1919, authorizes the taking of depositions by a notary public. Courts at common law had no inherent power to authorize the taking of depositions, and in our courts such authority is purely statutory and therefore such statute must be strictly construed. Burnett v. Prince, 272 Mo. 68, 75; Patterson v. Fagan, 38 Mo. 70, 79; Ex parte Mallinkrodt, 20 Mo. 493. No power can flow from the board to the notary, for the board has no authority to subpoena witnesses and compel their attendance. State ex rel. v. Goodier, 195 Mo. 551, 559.
(4) An affidavit is inadmissible as evidence unless expressly authorized by statute. 2 Wigmore on Evidence, sec. 1384; Hudson v. Applegate, 87 Iowa 605; Patterson v. Fagan, 38 Mo. 70; Hancock v. Whybark, 66 Mo. 672; Walsh v. Rogers, 13 How. 287; Pickering v. Townsend, 118 Ala. 351; Smith v. Feltz, 42 Ark. 355; Smith v. Weaver, 41 Pa. Super. 253; 2 Blackstone (Jones) p. 1983; 2 C.J. 373. (5) Rule 40 contravenes no law and is valid, and, as such, has the force and effect of law. Pelz v. Bollinger, 180 Mo. 252; Bank of Escondido v. Superior Court, 106 Cal. 43; Rigdon v. Ferguson, 172 Mo. 49; Brooks v. Boswell, 34 Mo. 474; 15 C.J. 904. (6) Mandamus does not ordinarily lie to control an inferior court in the exercise of its judicial discretion. High on Extraordinary Legal Remedies (3 Ed.), p. 254; State ex rel. Heman v. Flad, 108 Mo. 614. (7) To pass upon the sufficiency of an appeal bond involves the exercise of judicial discretion, and unless it is charged and clearly shown by relators that the decision of the respondent is not in the exercise of good faith of the discretion vested in him, mandamus does not lie to compel him to accept the bond.