text:
    THE STATE v. THOMAS WALKER, Appellant.
    Division Two,
    May 20, 1913.
    1. INSTRUCTIONS: Limitations: Three Year Period Fixed too Remotely: Harmless Error. Where all the evidence offered fixed the commission of the offense by defendant at a time less than a year before the filing of the information, and where there was no. evidence of any offense committed by him three years or more before it was filed, he was not injured by an instruction which set the three-year period to running from the date of filing of the complaining witness’s affidavit, or two months before the information was filed.
    2. NEWLY DISCOVERED EVIDENCE: New Trial: Discretion of Trial Court. The granting of a new trial upon the ground of newly discovered evidence is a matter resting largely in the sound discretion of the trial court, and absent an abuse of sound discretion, the Supreme Court will not interfere.
    3. -: -: Motion Must Show Facts Constituting Dili* ' gence. To entitle one to a new trial upon the ground of newly discovered evidence the motion therefor must show that it was not for want of due diligence that such evidence was not found before the close of the trial, and that the new evidence is of such kind as would probably produce a different result upon another trial. And such motion musj state the facts constituting' diligence.
    Appeal from Daviess Circuit Court. — Ho». Arch B. Davis, Judge.
    Affirmed.

      J. C. Leopard and Thomas H. EicMin for appellant.
    (1) In cases of conflicting affidavits, where the credibility of the proposed new witness is involved, the court should not assume the- functions of a jury, hut should grant a new trial. 14 Ency. PL & Pr., pp. 794, 795, and cases cited under note 2, p. 795. (2) The proposed evidence is not cumulative, even though it is additional to other evidence tending to prove the same thing, where it is of a different character and proof of a new and distinct fact. State v. Curtis, 77 Mo. 267; State v. Murray, 91 Mo. 103; 14 .Ency. PI. &i Pr., pp. 815-817, and notes 1 and 2, p. 817; St. John v. Alderson, 32 Gratt. (Va.) 140. (3) The proposed new evidence would probably produce a different result on a new trial. State v. Curtis, 77 Mo. 2G7; State v. Moberly, 121 Mo. 614; State v. Murray, 91 Mo. 103. (4) Where evidence, as of the Preston girl, has been denied and attacked, even cumulative, newly discovered evidence would be admissible. State v. Evans, 65 Mo. 580.

      John T. Barker, Attorney-General, andi W. T. Rutherford, Assistant Attorney-General, for the State.
    There is no error in instruction 5'. The affidavit was filed February 4, 1911, and that day the prosecution was begun and the running of the Statute of Limitations was interrupted. Sec. 2441, R. S. 1909; State v. Sassaman, 214 Mo. 720.
   WILLIAMS, C.

Defendant was tried in the circuit court of Daviess county, upon an information charging him with having carnal knowledge of an unmarried female of previous chaste character, between the ages of fourteen and eighteen years, was found guilty, and his punishment assessed at imprisonment in the penitentiary for a term of two years.

The State’s evidence disclosed that the defendant and the prosecuting witness were negroes, and that at the time the offense was committed the prosecuting witness was fifteen and the defendant about thirty-two years of age. In October, 1910, Nettie, the prosecuting witness, was at the home of a neighbor, where she and another girl called Irene, being the only persons in the house, were playing on the organ and singing. Defendant came into the house and room where the girls were, went up to the organ, and began pulling at Irene, who struck him with her hat pin, and told him “she was not going to do what he wanted her to do.” Defendant then turned his attention to the prosecuting witness, took hold of her, “pushed” her into another room and up a flight of stairs, and over and on to a bed, where he had sexual intercourse with her. Just before the commission of the offense defendant promised to pay the girl, for her consent to the act, the sum of six dollars, and a few days thereafter he paid her the sum promised.

The prosecutrix testified that this was her first act of intercourse. Several witnesses testified that prior to this occurrence the girl’s reputation for virtue and chastity was good. Three of four letters proven to be in the handwriting of defendant, and addressed to the girl’s parents, were offered and read in evidence, in which letters defendant sought to compromise his difficulty by offering to pay from twenty-five to fifty dollars to the parents, and to marry the girl.

Defendant did not testify in his own behalf, hut produced evidence tending to show that during, the summer prior to the commission of the offense, the prosecutrix would remain out in town as late as ten or eleven o’clock at night, necessitating her mother’s going after her, bringing her home and punishing her.

Alberta Preston testified on behalf of defendant that some time in June, and prior to the offense complained of, she had a conversation with Nettie, the prosecutrix,' while walking along th^ street, during which conversation Nettie pointed out to witness a certain white hoy on the street, and said that she had had sexual intercourse with him.

Defendant filed a motion for a new trial, and one of the grounds thereof was that he had discovered new and material evidence since the date of the trial. In support of this ground of the motion he filed an affidavit to the effect that the newly discovered witness was one Mabel Maupin; that said Mabel would, if sworn as a witness, testify that she was about fifteen years of age, and that the prosecuting witness, prior to this offense, had told her of having sexual intercourse with a colored boy, and that bn another occasion she saw Nettie and a white boy go under a porch on the west end of one of the store buildings in Gallatin for the purpose of having sexual intercourse; that at another time, and prior to this offense, Nettie was visiting with her at the place she was living, when a colored boy came to the house, and, after some conversation with the two girls, ashed Nettie to have sexual intercourse with him, to which she consented, and that said colored boy and Nettie did then and there indulge in sexual intercourse, and that she, witness, stood by in the room and saw them so engaged. The affidavit further states that the foregoing evidence first came to defendant’s knowledge since the trial* and on Saturday night, October 28, 1911, and that “he has been trying for a long time — in fact, ever since his arrest — to learn of such evidence, but failed to learn of it until that time, when the said Mabel told his, defendant’s, father, Alexander Walker, what she would testify, and it was not owing to want of diligence that such information did not come sooner.” The affidavit of said Mabel Maupin was also filed, corroborating the statements of defendant’s affidavit as to the evidence he claimed she would give. The. State thereupon filed counter affidavits of ten persons to the effect that,said Mabel Maupin was “an unmarried female, the mother of a child, and that her general reputation for truth and veracity and virtue and chastity, in the town of Gallatin, where she liv.ed during the summer of 1910, was bad.” Defendant then filed the affidavits of nine persons to the effect that, while Mabel Maupin’s reputation for virtue and chastity was not, it was good for truth and veracity, and that she was working at the home of one of the best white families in Gallatin.

Defendant on appeal assigns as error (1) the action of the court in giving to the jury instruction numbered 5; (2) in overruling defendant’s motion for new trial on the ground of newly discovered evidence disclosed by the affidavits filed in support thereof.

I. That portion of instruction 5 of which appellant complains is as follows:

“The court instructs the jury that if you believe from the evidence, beyond a reasonable doubt, that at the county of Daviess, and State of Missouri, on or about the-day of October, 1910', or at any time -within three years next before the filing of the affidavit of the complaining witness in this case, which affidavit was filed on the 4th day of February, 1911, the defendant did feloniously assault and carnally know the witness, Nettie Butts,” etc., “you will find the defendant guilty,” etc.

Error.leSS The information in this case was filed April 4, 1911, and appellant insists that it was error to allow the jury to convict if they found the offense was committed within three years next before February 4, 1911, the date of the filing of the affidavit of the complaining witness, for the reason that the offense must occur within three years next before the filing of the information. It is true that section 4945, Revised Statutes 1909, concerning felonies of this character, does provide that the indictment must be found or the information filed within three years after the commission of the offense. ^However, in the case at bar the appellant was not injured by the giving of the above instruction, for the reason that .all of the evidence offered fixed the commission of the alleged offense as in October, 1910, and there was no evidence tending to show the commission by defendant of any offense at a time which would be three years or more before the date of the filing of the information. Since the instruction in the form given did not prejudice defendant’s rights in any manner, the giving of same did not constitute reversible error.

II. The rule announcing the requirements necessary to be met by appellant in order to entitle him to a new trial on the ground of newly discovered evidence is well settled in this State (State v. Miller, 144 Mo. l. c. 30; State v. Whitsett, 232 Mo. l. c. 523); and it would serve no useful purpose to recopy same here. Those requirement, so far as applicable here, are, that it was not for want of due diligence that is well settled in this State Pose to recopy same here. Those requirements appellant did not learn of the new evidence before the close of the trial, and that the character of the evidence is such that it would probably produce a different result if a new trial were granted. Appellant in his motion does not state any facts tending to show diligence. He contents himself with merely stating that he had been trying to learn of such evidence for a long time, but failed to learn of it sooner, and “that it was not owing to want of diligence that «such information did not come sooner.” It is thus seen that appellant did not state the facts from which diligence might appear, so that the court could pass upon the question of diligence, but in a sense appellant undertook to usurp the judicial function and to pass upon the question, and did nothing more in his application than to disclose his own finding or conclusion in regard thereto. “The statement of facts constituting the alleged diligence must be made clear and plain.” [State v. Cushenberry, 157 Mo. l. c. 183, 184.] The circumstances surrounding the newly discovered evidence are not such as to show that diligence wonld have "been of no avail, and therefore such as to place this case within the exception to the above rule, as was the situation in State v. Moberly, 121 Mo. 604, cited by appellant in his brief. Neither do we think it probable that the newly discovered evidence would have produced a different result. On the trial of the case, witness Alberta Preston, who was unimpeached, testified that the prosecuting witness had told her of having had sexual relations with another party before the time of this offense', and pointed out the boy with whom .she had such intercourse. The jury, however, credited the denial made by the prosecuting witness, and disbelieved the testimony of the Preston girl. It is not probable that a different result would be produced if a new trial were granted, and this newly discovered witness — impeached not only by ten persons, but also by her own admissions — allowed to testify.

The granting of a new trial upon the ground of newly discovered evidence is a matter largely resting in the sound discretion of" the trial court (Insurance Co. v. Curran, 45 Mo. 142), and, absent an abuse of sound discretion, this court will not interfere. [Cook v. Railroad, 56 Mo. 380; Schmitt v. Railroad, 160 Mo. 43.]

The judgment is affirmed.

Roy, C., concurs.

PER CURIAM. — The foregoing opinion of Williams, C., is adopted as the opinion of the court.

All the judges concur.


source: Caselaw Access Project

author: ROY, C.

license: Public Domain

text:
    THE STATE v. MARY E. WILSON, Appellant.
    Division Two,
    May 20, 1913.
    1. INSTRUCTIONS: Convicted of Lower Degree of Crime: Renders Harmless Error in Instruction on Higher Degree. Conviction of a lower degree of a crime renders harmless error in an instruction as to a higher degree.
    2. EVIDENCE: Declarations of Deceased: Not Admissible: Mere Hearsay. In the trial of a woman for the killing of her husband it was proper to exclude testimony of statements of the murdered man made before the shooting, to the effect that he had forced his wife, at the point of a pistol, to write a letter incriminating herself. The State sustains no such relation to the party injured as will make his declarations admissible against the State when such declarations are not admissible as dying declarations or as a part of the res gestae.

    3. -: Threats and Violence of Deceased Toward Defendant: Admissible Unless Cumulative. In trials involving the question of self-defense the better rule is to allow all evidence of threats or violence of deceased toward defendant, limited only by a very sound discretion, but the rejection of evidence merely cumulative will not work a reversal.
    Appeal from Butler Circuit Court. — Hon. Jesse G. Sheppard, Judge.
    Aeetrmed.

      Phillips, Lents & Phillips for appellant.

      John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
   ROY, C.

Defendant was charged with murder in the first degree. The jury convicted her of murder in the second degree, but failed to agree on the punishment. The court sentenced her to ten years in the penitentiary, and she has appealed. She shot and hilled her husband, Martin Wilson, in Poplar Bluff, on November 5, 1911. They were married in 1897 in Memphis, Tenn., and lived most of the time after' that at Poplar Bluff. He had been for about ten years prior to his death a railway mail clerk, running out of Poplar Bluff a part of the time to Memphis, Tenn., and at other times to Helena, Ark. Defendant taught in the colored school at Poplar Bluff for three years, ending in May, 1910. On the trial numerous witnesses testified as to the good reputation of both of them for peace and quiet prior to their estrangement in the fall of 1910. There was only one child, a son, whose age is not given. - In September, 1910, she and the son entered Lincoln Institute. While there, about November 23, 1910, she made a trip to Washington, and New Haven, Missouri. Following that trip, the husband accused her of infidelity and quit paying her bills. In January, 1911, she went from St. Louis to Poplar Bluff and there sued him for divorce and immediately returned to St. Louis. Later she brought another divorce suit in St. Louis and dismissed the one in Butler county. On September 26, 1911, while visiting her mother in Arkansas, she was riding in a buggy with a “gentleman friend,” and by some accident her leg was injured. She testified it was broken, but said the doctor did not say it was broken and did not set it. About a week after, she went on crutches to St. Louis. The husband sued her in the Butler Circuit Court for divorce, charging infidelity, indignities, cruelty and extravagance. That suit came on for trial October 19, 1911, and she made default, and a decree of divorce was rendered in his favor. About the last of October, 1911, defendant purchased a .38 calibre revolver in St. Louis, and on the night of November 4 she went on the train to Poplar Bluff, arriving here about two a. m. of Sunday, November 5. ‘ She had the pistol with her in a handbag. She did not go to any house, but remained on the street until about 4:50 a. m. At that time she was in front of the residence of Grant Gleason on Oak street She bad the pistol in her hand. Her husband came in from his regular run on a train which arrived at 4:25 that morning', and he registered according to custom at the post office at 4:40 a. m. He was passing at 4:50 a. m. on the north side of Oak street, going west in front of the Gleason residence. There was a large tree about eighteen inches in diameter standing near the Gleason house, just at the edge of the sidewalk, where there was no fence.

Grant Gleason and his wife testified that they were awake and that without any previous noises of any kind, a shot was heard. Immediately some one on the outside seemed to be saying, “Oh, Mama.” They went out and found Wilson lying on the sidewalk with his head to the west and his feet about three feet from the tree. He was saying, “Oh, Mary, oh, Mary.” Defendant was apparently working over or about him. She backed some distance to the west. He jumped up and ran east. She fired again and ran after him, and later- on fired the third shot. He fell a block or two away. She returned to the place of the shooting. The three witnesses of the Gleason household testified that about that time a woman’s voice outside of the house said, “There is one more I want to get, they swore lies on me.”

Wilson received only one wound, which passed through his right - arm about four inches below the shoulder and directly through the lung, neither turning up nor down nor to the right nor left. He died the following night.

She testified that in May, June and August, 1910, he choked and beat her. Being asked whether at any time prior to 1911 he had ever struck, beat or choked her, she answered “he has always done that.” She testified that she was selling hair oil and face lotions while at Lincoln Institute, and went to Washington and New Haven, Missouri, for that purpose. That he ordered her to leave Lincoln Institute and that in January, 1911, lie compelled her at the point of a revolver to write a letter inculpating herself in connection with another man.

The defendant then made the following offer of evidence: “By Mr. Lentz: We make the offer now, to prove by this witness a continual line of abuse, mistreatment and assaults, going back and covering a period, assaults by the deceased upon this witness, going back and covering a period of about fourteen years before their final separation; and we propose further to show that during this — during this whole time of fourteen years, that there was scarcely a month and sometimes several times a month, in which the deceased cruelly beat, choked, and otherwise mistreated this defendant. We offer to prove that by this witness.”

To which the court sustained an objection and the defendant excepted.

Several witnesses testified to brutal treatment of defendant by deceased. One witness stated that he twice found him beating her with a stick of stove wood, and on another occasion found him choking her. Without setting out that witness’s testimony, we will say that there is much about it calculated to render it doubtful. There is evidence tending to show that his treatment of her at times was cruel and abusive. There was also evidence tending- to show several threats made by him against her. The court records in the divorce suit brought by him against her were read in evidence without objection.

While the witness Hicks was on the stand, the defendant made the following offer of evidence:

“By Mr. Lentz: The defendant offers to prove by this witness the following facts: That after the commencement of the divorce suit by Martin Wilson against his wife in the circuit court of Butler county, and on or about the 28th of August, 1911, this witness had a conversation with Martin Wilson, the person whom this defendant is charged with lolling, and the plaintiff in that case, in which Wilson said to this witness in substance that he had procured the statement or letter from the defendant in that case, and the defendant in this case, to the effect that she had been guilty of criminal intimacy with one Fred Parker at some place in the city of St. Louis. That he also stated that he had compelled the defendant to write that letter as he dictated it; and that at that time he had a revolver in his hands; and by that means compelled her to write the letter. We offer to make this proof by this witness. And I think it is competent, for the reason that the State has introduced in evidence in this case a petition for divorce in which he charges this defendant with being- guilty of criminal intimacy with this same Fred Parker named in the letter or statement before referred to; and that the defendant has testified that that statement is untrue. ’ ’

To which an objection was sustained by the court and the defendant excepted.

David E. Graham and his wife testified for the defendant : ‘ ‘ That on that morning about five o ’clock, or a little after, they passed along that street, and right at the point described by the defendant they found a man’s hat and a woman’s hat, and a piece of cloth that looked as though it had been a part of a scarf or a veil, and in that was a large wad of woman’s hair, which they said was about the same color and general appearance of the hair of this defendant.”

The defendant testified that she did not want to go to Lincoln Institute and that deceased compelled her to go. She also testified that she employed counsel to defend the divorce suit brought against her, but that she was in the hospital with her broken leg at the time it was tried, and that no one appeared for her, .and that she got out of the hospital about October 26 and went to see her attorneys who advised her to go to Poplar Bluff to see about the case. Her account of the tragedy is as follows:

“Well, I came here on No. 5- that morning of November the 5th, and of course, I didn’t have enough money to get me a rooming place; and I had been told that I had no friends down here; that everybody had turned their backs on me. I had no place to go, and of course, I started out to Mrs. Smith’s; and I felt a little timid; I didn’t feel that I could be turned out by her. So I decided — I thought about Mrs. Blue, a friend of mine; and I said that I would see her, I could venture over to her house, probably she would not turn me out. I came back down to Fourth street and turned west on Oak street; and there at the crossing — the Frisco crossing, I dropped my scarf pin, and while there looking for it, I heard some one coming behind me, and I turned and saw a man; and of course, he came up- and he spoke to me, and I spoke to him; and he says, ‘Oh,’ says, ‘Mary, what are you doing here?’ I said, ‘I came to see if you were willing to give me anything.’ He took everything, even the child, robbed me of that. ‘I have nothing, I haven’t money enough to secure a rooming place tonight.’ And he wheeled and grabbed me then and says, ‘I’ll kill you!’ and he grabbed me in the top of the hair, and, of course, by some luck I was fortunate enough to pull loose from him, and as I got away, I happened to have a revolver with me; and as I pulled" loose, he kinda turned aside, and I suppose he must have seen my gun; and, of course, I shot him then.”

The court instructed the jury on murder in the first and second degrees, and on manslaughter in the fourth degree, and on self-defense, reasonable doubt, presumption of innocence and good character. The defendant asked some instructions, but in so far as they were correct they were covered by those that were given.

I. . It is claimed that there was no evidence to instructions, show murder in the first degree, and that no instruction should have been given on that degree. We hold that there was evidence tending strongly to show that defendant lay in wait and shot deceased while he was unaware of her presence. Besides, when one is convicted of a lower degree of the offence, an error in an instruction as to a higher degree is harmless. [State v. Stockwell, 106 Mo. 36; State v. Grote, 109 Mo. 345.]

II. No error was committed in excluding the evidence of the witness Hicks to the effect that the deceased told him that he had compelled defendant to write the incriminating letter.

It was held in State v. Curtis, 70 Mo. l. c. 597, that the State sustains no such relation to the party injured as will make Ms declarations admissible against the State when such declarations are not admissible as dying declarations or as a part of the res gestae. To the same effect is State v. Punshon, 124 Mo. l. c. 457, and cases there cited.

III. Complaint is made that the trial court erred in excluding evidence of defendant that she had been continuously abused by deceased during the whole period of her married life. There was much evidence on the subject of Ms abuse of her. She testified to various instances of abuse in 1910, and stated that he had always treated her that way. Threats and acts'of violence by deceased toward defendant in eases involving the question of self-defense are competent for two purposes; to show which party was the probable aggressor, and to show what, if any, grounds of apprehension the defendant may have had. It has been held that the remoteness of threats from the date of the homicide does, not effect their competency as evidence. [State v. Glahn, 97 Mo. 679; State v. Whitsett, 232 Mo. l. c. 529.] From all that we can find in the authorities there is no reason why acts of violence by deceased toward defendant should be considered differently. We think the better rule is to allow all evidence of threats or violence of deceased toward defendant, limited only by a very sound discretion. It is said in 1 Wigmore on Evidence, sec. 248: “The true solution is to exercise a discretion and to admit such facts when common sense tells us that they would legitimately affect a defendant’s apprehensions. The state of the law in more recent times has come on the whole to favor the admissibility of such facts.”

In Boyle v. State, 97 Ind. 322, 326, it was said, “As in personal conflicts every man is permitted within reasonable limits to act upon appearances and to determine for himself when he is in real danger, it would seem to follow, as an inevitable consequence, that whoever relies upon appearances and a reasonable determination upon such appearances, as a defense in a case of homicide, ought to be allowed to prove every fact and circumstance known to him and connected with the deceased which was fairly calculated to create an apprehension for his own safety.”

However, it was held in a similar case State v. Nelson, 166 Mo. l. c. 204, that the rejection of merely cumulative evidence will not work a reversal. Now in view of the fact that abundant evidence of violence by deceased towards defendant was admitted, including the statement of defendant, that “he had always done that way,” we are satisfied that the jury convicted her in the belief founded on the evidence that she armed herself with a revolver in St. Louis, went to Poplar Buff, arriving there at two o’clock a. m. and waited on the streets until 4:50 a. m., when she shot him as she stood behind the tree and while he was passing with his right side towards her. We are satisfied that the additional evidence offered would not have changed the result, and its exclusion is not reversible error.

The instructions given are remarkable for their clearness, completeness and fairness. Those offered by defendant were fully covered by those given by the court, except in so far as those offered by the defendant were wrong.

The judgment is affirmed.

Williams, C., concurs.

PER CURIAM. — The foregoing opinion of Roy, G., is adopted as the opinion of the court.

All the judges concur.


author: BROWN, P. J.

text:
    THE STATE v. WILLIAM SHORT, Appellant.
    Division Two,
    May 20, 1913.
    1. APPEAL: Rule Governing Civil Cases Applicable to Criminal. Appeals in criminal cases are governed by appellate procedure in civil cases, unless there exists some special provision in the criminal code prescribing a different rule. [Following State v. Pieski, 248 Mo. 715.]
    2. —5--: When Perfected. An appeal in a criminal ease, as in a civil case, is not perfected’until the appellant files with the clerk of the appellate court a complete transcript of the record .proper and a certified copy of the bill of exceptions (unless the appeal is based on some error in the record proper), or, in lieu of such transcript, a copy of the judgment appealed from and a copy of the order granting 1jie appeal.
    3. -: -: Within One Year: Not Regulated by Filing Bill of Exceptions. Where the appeal was granted on October 31, 1911, and the bill of exceptions was approved and filed in the trial court on January 7, 1912, and the transcript was not filed in the appellate court until January 3, 1913, the appeal was not perfected within one year from the date it was granted, as required by Sec. 5313, R. S. 1909; and, the delay not having been shown to be the fault of the clerk, etc., the appeal is dis missed.

      4. -; -; Excuse. If the appellant’s failure to perfect his appeal within one year after it is granted is the fault of the clerk of the trial court in not preparing the transcript in a timely manner, or the fault of any person other than appellant or his attorneys, such fact might furnish a ground for overruling the motion to dismiss; but the burden is on appellant to show such excuse, and where there is no such showing it will be assumed that no such excuse exists.
    Appeal from Iron Circuit Court. — Hon. E. M. Dearing, Judge.
    Appeal dismissed.

      John N. Raney and Adrian Steel for appellant.

      John T. Barker, Attorney-General, and Ernest A. Green, Assistant Attorney-General, for the State; Stephen K. Owen, of counsel.
    On October 31, 1911, defendant filed his affidavit for and was duly granted an appeal to this court. He did not appeal as a poor person, but entered into an appeal bond and has been ever since continuously out on bond. The record proper further shows two orders granting' time for the filing of a bill of exceptions, but it does not show when the bill of exceptions was filed or that it was ever duly filed. The bill of exceptions was, however, signed by the judge on January 7, 1912. On January 3, 1913, and more than one year after “the time the appeal was granted” and lacking only four days of being one year after the signing of the bill of exceptions herein, appellant perfected his appeal by filing a transcript of the record in the case with the clerk of this court. It thus appears that it was more than one year from the date the appeal was granted until the same was perfected, during all of which time appellant was out on bond and his bill of exceptions duly signed by the trial judge. Owing to the great lapse of time in perfecting this appeal and the plain mandate of the statute (Sec. 5313, R. S. 1909), we feel that justice can only he conserved and the policy of the law enforced by a dismissal of this appeal. State v. Piesld, 248 Mo. 715.
   BROWN, P. J.

Tried in the circuit court of Iron county for advising and procuring the casting of an illegal vote, as prohibited by section 4427, Revised Statutes 1909, defendant was convicted, and appeals from a judgment fixing his punishment at a fine of fifty dollars.

The Attorney-General has filed in this court his motion to dismiss the defendant’s appeal on the ground that it was not perfected within one year from the date it was granted, as required by section 5313, Revised Statutes 1909.

The record before us shows that defendant’s appeal was granted on October 31, 1911, and' the bill of exceptions was filed and approved by the trial court on January 7, 1912, while the transcript was not filed with the clerk of this court until January 3, 1913, more than a year after the appeal was granted.

While section 5313, Revised Statutes 1909, requires appeals in all felony cases except when the defendant has “been sentenced to suffer death,” to be perfected in twelve months, it does not designate what acts are necessary to perfect such appeals.

In the recent case of State v. Pieski, 248 Mo. 715, we held that appeals in criminal cases are governed by the appellate, procedure in civil cases, except where some special provision exists in the criminal code prescribing a different rule. This must necessarily be true for the reason that the right of appeal is wholly statutory, and there being no rule prescribed by the criminal code whereby we may determine when an appeal is perfected, the General Assembly must have intended that the laws governing appeals in civil and criminal cases should be construed in pari materia.

A.n appeal in a civil case is deemed perfected when the trial court makes the order granting the appeal, the docket fee is paid and a perfect transcript of the record and proceedings in the case is filed with the clerk of the appellate court, or in lieu of such complete transcript a certified copy of the judgment and the order granting the appeal is filed in such appellate court. [Sec. 2048, R. S. 1909.]

It follows that an appeal in a criminal case is not perfected until the appellant files with the clerk of the appellate court a complete transcript of the record proper, and also a certified copy of the hill of exceptions (unless the appeal is based upon some error in the record proper); or in lieu of such transcript a copy of the judgment appealed from, as well as a copy of the order granting the appeal. Neither of.these things was done by the defendant in the case at bar within twelve months next following the granting of his appeal; therefore, his appeal was not perfected within the time expressly limited by the statute.

Of course, if the failure to perfect his appeal within the year granted him by law was the fault of the circuit clerk in not preparing the transcript in a timely manner, or the fault of any person other than the defendant or his attorneys, such fact might furnish ground for overruling the motion to dismiss, but the defendant files no brief in this case and makes no showing in opposition to the motion of the Attorney-General.

The motion to dismiss will be sustained and the appeal dismissed. It is so ordered.

Walker and Faris, JJ., concur.


author: FARIS, J.

text:
    THE STATE v. MACK MAGGARD, Appellant.
    Division Two,
    May 20, 1913.
    1. LARCENY: Substantial Evidence: Matter for Jury. Where there is substantial evidence of defendant’s guilt of stealing the horses, and also substantial evidence that he is not guilty, and the evidence is in such shape that if the State’s is true he is guilty, and if defendant’s is true he is an innocent and persecuted man, the question of his guilt was a matter for the jury, whose province it is to determine the credibility of witnesses in a law case.
    2. --: Recent Possession of. Stolen Property: Presumption. The possession of a stolen horse recently after the theft, and the sale thereof, by defendant, is a circumstance coupled with a presumption, which impose upon him the duty to satisfactorily account therefor.
    3. CIRCUMSTANTIAL EVIDENCE: Instruction. An instruction upon circumstantial evidence should substantially advise the jury that the circumstances proved must be consistent with each othpr and with the, hypothesis that the 'defendant is guilty, and inconsistent with the theory of his innocence and with every reasonable hypothesis except that of guilt. And an instruction which tells the jury that “before you can convict the defendant on circumstantial evidence alone, the facts and circumstances must all form a complete chain and point directly to the defendant’s guilt and must exclude every reasonable theory of defendant’s innocence,” while inartistieally drawn, meets the requirement of the rule.
    4. EVIDENCE: Aota Inter Alios: Lugged in by Appellant. Where appellant has lugged into the case matters inadmissible, he cannot complain that the witness in redirect examination repeats the statement. An error courted by appellant, or induced by his action, or brought about ex necessitate, becomes a part of the interlaced facts and is not reversible error. Where there were two horses stolen, one of which was soon afterwards in the possession of defendant Maggard and the other in the possession of his brother, both of whom are jointly indicted for the larceny, a witness for the State who had bought one of the mares from the brother was asked on cross-examination why he had stated to a witness for defendant that the mare he had bought from the brother was a stray, and replied: “Mr. Maggard told me if I told anything about this he would blow my head off.” Held, that it was not reversible error for the State to ask the witness on redirect examination: “I will ask you if about that time your life was threatened if you told where you got this mare?” — -for several reasons: first, the context shows that the “Mr. Maggard” who had threatened the witness was not the defendant, but his brother, and it was therefore harmless error; second, the question related to res inter alios, and was, therefore, inadmissible, but it was induced by defendant’s question, and hence he cannot complain; and, third, the threat interlinked itself with defendant’s theory of defense.
    5. =-: Impeachment: Rehabilitation: Cognate Acts and Statements. Where a witness is impeached by proof of variant, acts and statements, relevant evidence of the witness’s prior statements corresponding with his testimony are admissible for the purpose of rehabilitation. Where two mares were stolen, and one was afterwards in defendant’s possession and the other in his brother’s possession, and defendant’s theory is that one Compton stole both and sold them to him and his brother, and Compton testified for the State that he bought one of the mares from the brother and when he afterwards learned she had been stolen returned her to him, and defendant undertook to impeach Compton by detailing various statements made and acts done by him, it was not error to permit the State in rebuttal to sustain and rehabilitate Compton as a witness by permitting another witness to testify that Compton had engaged him to keep a lookout for and buy a horse for him and had later told him before the theft of the mare became public that he had bought a horse from defendant’s brother and that he need not therefore keep a further lookout for a horse for him.
    6. --: -: By Acts and Statements: Rehabilitation by Proof of .Reputation. Where defendant has sought to impeach a State’s witness by proof of his former acts and statements, the State is entitled to prove by witnesses that the general reputation of the witness for honesty, truth and veracity is good.
    Appeal from Douglas Circuit Court. — Ron. John T. Moore, Judge..
    Affirmed.

      .Dooley & Riett and Patterson & Mason for appellant.

      John T. Barker, Attorney-General and Thomas J. Riggs, Assistant Attorney-General, for the State.
    (1) ' There was ample evidence to warrant the verdict returned by the jury. The contention that the verdict was against the evidence is without any merit and does not deserve the consideration of this court. (2) That the verdict of the jury is against the law as declared in the instructions given by the court is a contention that could not be seriously- argued in this case and was only raised by appellant as a matter of form. (3) The court instructed the jury on all the necessary points of law in the case as required by statute and in acor dance with the many decisions of this court. State v. Conway,'241 Mo. 285. (4) The court did not err in admitting irrelevant, illegal and incompetent testimony on the part of the State.
   FARIS, J.

Defendant was indicted in the circuit court of Douglas county for grand larceny; being convicted and his punishment being assessed at imprisonment in the penitentiary for a term of four years, after the usual procedure in such cases provided, he has taken and now prosecutes this appeal.

The larceny specifically charged was horse stealing. Defendant was jointly charged in this behalf with four others, but upon- the defendant’s application therefor, a severance was granted to him and he was separately tried on September 26, 1912.

The horses alleged to have been stolen were the property of one Orey Bennett, who resided about four miles from the town of Yanzant in Douglas county. Some three weeks prior to the alleged theft, defendant, with one. of his co-defendants, Abe Emery, came into the neighborhood in which said Bennett resided, for the purpose of purchasing cattle, and while so engaged remained in that neighborhood about a week, boarding with one Johnathan Emery, the brother of Abe.

The cattle which' defendant and Emery purchased were kept in the lots of said Bennett. The defendant, it appears, must have become well acquainted with one of the stolen horses; namely, a certain mare, called in the testimony, a “solid sorrel mare;” for there is proof that he offered to trade a gray horse which he was then driving for said sorrel mare of Bennett’s.

Defendant Maggard and Emery left this neighborhood with their cattle about the 22nd of June, 1910, and on the night of July 13, 1910, the two mares of Bennett, which are alleged in the indictment to have been stolen, disappeared. Search was made extensively for these mares and some two months later one of them, called in the testimony “the sorrel mare with the white face,” was found in Ozark county; and some eighteen months thereafter, to be exact, in February, 1912, the “solid sorrel mare” was found in the pasture of Dave Coram in Linn county in this State. The testimony shows that Coram purchased this mare from defendant sometime about the last of September, 1910; that about the 25th of August, preceding, defendant had come to the farm of one A. H. Stone, a .neighbor of Coram, and whom defendant had known years before, and began work for Stone as a farm hand. Defendant, during the summer of 1910, made his home with his brother, Will Maggard, who is his co-defendant here, and who resided somewhere in Greene county. On the farm of Will Maggard, the proof tends to show, in the early days of August, 1910, at a secluded place, near some empty buildings, and in a small hollow among the bushes, there were found plain indications of horses having been kept.

The theory of defendant, as is clearly disclosed by the testimony of defendant, who as a witness testified for himself, was that defendant purchased the mare which he afterwards sold to said Coram from one Ed Compton, who resided about three miles east of Springfield, and was apparently a neighbor of Will Maggard, the brother of defendant. The other of the two mares in question, namely the “white faced sorrel mare,” was for a time in the possession of said Compton, but the latter explains his possession of her by saying that he purchased her from Will Maggard, and that upon ascertaining or suspecting that she had been stolen, he turned her back to said Will Maggard. Later this' mare was found by one William Lee, a neighbor of Bennett, in the northwest corner of Ozark county, to which place, inferentially — for the record is silent— she seems to have wandered. We say inferentially, because, while the proof shows that this mare was for a month or two in Compton’s possession, by reason, he says, of his purchase of her from Will Maggard, he says that he turned her hack to Maggard. There is no showing as to the manner in which said Maggard disposed'of her.

Defendant, in attempting to account for his possession of the stolen mare, swears, as we have stated, that he met the witness Compton on the public road and gave the latter $90 for her; that he rode her to the farm of Abe Emery, there purchased a buggy and set of harness from said Emery, and on the next morning started to drive to North Missouri. In his drive north he passed through various towns, hut does not appear to have tarried long at any of them. He says that he did not even suspect that the mare had been stolen until he returned to Springfield, which occurred about November, 1910, though he admits that he and Emery were in Bennett’s neighborhood in the June preceding, and that he saw the mares at that time, though he was unable to, remember whether he offered to trade for one of theip. or not. Upon reaching Springfield he seems to have been advised that some trouble was brewing about the mares, for he says that he saw the witness Compton and asked Compton about the matter, but was advised by Compton that the trouble was not over the mare which defendant says Compton sold him, but was about the other of Bennett’s mares. As to this conversation he is corroborated by one John Ikes, who seems to have no permanent residence at any place, but is apparently a man of peripatetic proclivities who had, just prior to his presence with defendant in hearing of the conversation with Compton, come to Springfield from Chicago.

There was much impeachment of the witness Compton by certain witnesses offered for defendant; by laying this horse stealing at his door,- and by the fact that Compton had been convicted of petit larceny, which was explained by him as consisting in the theft of a watermelon. There was testimony as to the good reputation of defendant; also testimony in rebuttal by the State of bad reputation, so as to leave the matter of reputation hanging somewhat in doubt.

Other facts, if they shall become pertinent to a full understanding of the points of contention, will be further amplified in our views thereon.

I. We have not been favored with either a brief or an oral argument on the part-of defendant. We are compelled, therefore, in performing the duty enjoined on us by the statute (Sec. 5312, R. S. 1909), to have recourse to the motion for a new trial and the motion in arrest in order to determine whether error meet for reversal occurred upon the trial.

Defendant alleges in his motion for a new trial: (a) The insufficiency of the evidence to support the verdict; (b) the misdirection and non-direction of the court in the instructions; and (c) the admission on the part of the State of incompetent testimony and the refusal to admit, on defendant’s part, competent testimony. These in their order.

II. The weight of the testimony was for the jury. The record shows that there was substantial evidence adduced by the State on every point recjuired by law to be proven to make out the guilt of defendant. If the jury believed the witnesses for the State, as it was their province to do, the conviction was proper and is amply supported by the record. If they had believed the witnesses for the defendant, including the defendant himself, they might well have found him not guilty. From the concrete result, it is evident that the triers of fact elected to believe the State witnesses. This was their legal privilege and we are not disposed, under the facts before us, to interfere with their finding. There was a sharp conflict developed by the evidence on many of the crucial points in the case. If the defendant’s version is correct, he is an innocent and persecuted human, a sufferer from vicarious punishment rightly the meed of another. But viewing the whole case from afar with a level eye, we cannot say that the jury did not reach a conclusion consonant with the weight and credibility of the evidence. But as we have seen, and not to burden our views with reiteration of citations, which' would only lengthen without illuminating this opinion, we end as we began, by saying that the law is settled, which precludes our interference on the grounds urged with the verdict of a jury in a case at law, present substantial proof of every legally required element of a given case. We rule this point adversely to defendant’s contentions and hold that the testimony was sufficient to sustain the conviction.

III. The instructions which the court gave and each of them is challenged, and it is urged that the court did not instruct on all of the law of the case. The court, by the instructions, correctly defined grand larceny, both abstractly and specifically, as having application to the concrete facts in the case; it correctly instructed on reasonable doubt and the presumption of innocence; on the good character of defendant and the weight of his testimony; on the presumptions arising from the recent possession of stolen property, and correctly presented by an apt instruction the theory of defendant’s bona fide purchase of the stolen horse from the witness Ed Compton.

The evidence was wholly circumstantial. The most damaging* circumstance was the possession of the stolen horse and the admitted sale thereof by defendant. Such possession, when recently following* larceny, is more than a circumstance, in this, that it is a circumstance coupled with a presumption against, defendant, to rebut which defendant is saddled with the duty of satisfactorily accounting therefor, to the triers of fact. [State v. Scott, 109 Mo. 226; State v. Jennings, 81 Mo. 185; State v. Good, 132 Mo. 114.]

Upon the phase of the weight of circumstantial evidence the court gave the following instruction, to-wit:

“Gentlemen of the jury, the State seeks a conviction in this case, on circumstantial evidence, and before you can convict the defendant on circumstantial evidence alone, the facts and circumstances must all form a complete chain and point directly to the defendant’s guilt and must exclude every reasonable theory of the defendant’s innocence.”

An instruction upon the quantum of circumstantial evidence should substantially advise the jury that the circumstances proved must be consistent with each other, and with the hypothesis that the defendant is guilty, and inconsistent with the theory of his innocence and with every reasonable hypothesis, except that of guilt. [State v. Dent, 170 Mo. 398; State v. Moxley, 102 Mo. 374; State v. David, 131 Mo. 380.] Taking the above definition as a fair deduction from what the courts have said and as a fairly accurate' statement of the required contents of an instruction on the quantity and quality of circumstantial evidence, and analyzing the instruction actually given, we see that the one complained of here, while inartificially drawn, yet falls within the pale of sufficiency. The court tells the jury that “before you can convict the defendant on circumstantial evidence alone, the facts and circumstances must all form a complete chain” (i. e., must be consistent with each other) “and point directly to the defendant’s guilt” (i. e., the facts must be consistent with the hypothesis that the defendant is guilty) “and must exclude every reasonable theory of the defendant’s innocence” (i. e., the facts must be inconsistent with the theory of his innocence, and inconsistent with every reasonable hypothesis except that of guilt). It may well be, if we weigh words in ultra-delicate scales, that the court in requiring the triers of fact to “exclude every reasonable theory of innocence” before they found guilt, went, favoring defendant, as far beyond his rightful due as the word “exclude” transcends in its force the wore! “inconsistent.” If this be so, surely defendant may not complain of efror committed in his favor. Be these things as they may be, this court has repeatedly approved instructions in this behalf not so strong as the one criticized, and has approved others of similar import. [State v. Hill, 65 Mo. 84; State v. Turner, 106 Mo. 272; State v. Bauerle, 145 Mo. 1; State v. Woolard, 111 Mo. 248; State v. Taylor, 134 Mo. 109.] Ruling this point against defendant’s contentions, we may yet suggest in passing, that the beaten paths in law, if there be such, are best, and that verbal excursions into unexplored fields of diction are always hazardous.

IV. During the trial one Ed Compton was called as a witness for the State, chiefly, it would seem, to qualify him for cross-examination by the defense. In his examination in chief he said, and all he said was: “I 'live in East Springfield and have lived in Greene county for eleven, twelve or fifteen years, may be; I know Bill Maggard and Mack Maggard [the defendant.] I know where one of the mares claimed to be owned by Orey Bennett was. In August, 1910, Mack Maggard was staying with Bill Maggard; about this time I bought one of the Bennett mares.from Bill Maggard and [afterwards] turned her back to Bill Maggard; since this case has been in court I have seen the mare down here in the barn in Bennett’s possession.” This is the whole of his examination in chief, though he was afterwards re-examined, traversing certain testimony in Ms cross-examination, which latter covers some fifteen pages of the record.

All of this is pertinent in the light of the fact that the most serious questions raised upon this appeal grew out of alleged errors in the admission of evidence affecting the testimony of said witness Compton.

Upon the trial the witness Compton was asked: “Q. When Bill Maggard took the mare, what did he say to you, if anything, about whether you should tell where you got the mare.” Objection to this question was urged by defendant’s counsel and this question was withdrawn without being answered. Thereupon this question was asked by the State: “ Q. I will ask you if about that time your life was threatened if you told where you got this mare?” Defendant objected unless defendant had threatened the witness. The objection was overruled and defendant saved his exceptions. This is urged upon us as error, for which it is said we should reverse the case. That is was res inter alios and inadmissible, goes without saying; but if it was an error courted by the defendant, or induced by his action, or brought about ex necessitate, the interlaced facts of the case regarded, it was not so harmful as to cause a reversal. As showing the colorless nature of this witness’s testimony in chief, we set it out in full above. The whole record shows that the witness Compton had said nothing that was not shown as well or better by other witnesses for the State. William Maggard was jointly indicted with defendant for the theft of the identical two mares, for the larceny of which defendant was herein convicted. One of these mares was traced indubitably to defendant’s possession. With the other one the objectionable testimony dealt. The theory of the defense was that the witness Compton had stolen them both, and sold one of them to defendant and the other to' William Mag•gard. These things all show the necessary interlacing facts presented in the case, without lawfully justifying, it is conceded, the admission of the statement on the theory of a conspiracy. But the identical statement to which defendant here objects was first brought out, without objection or exception by defendant, in his cross-examination, Being asked by counsel for defendant, in substance, why he had told one Martin, who was a witness for defendant, that the mare which Compton alleged he got from William Maggard, was a stray, he replied : “Mr. Maggard told me if I told anything about this he would blow my head off.” The question and answer objected to had reference, as the record clearly shows, to this identical threat. It was brought before the jury first by defendant himself, and not by the State. It went to the jury hours before the objectionable question was asked and answered. It is fundamental that error may not be bottomed on things lugged into the case by defendant himself. Besides, since the answer provoked from the witness by defendant did not clearly disclose whether defendant or William Maggard had threatened him, and since the matter objected to does disclose by its context that the “Mr. Maggard” who had threatened him was not defendant, but his brother, we are not able to see why or how defendant was hurt. Being forbidden to reverse except for harmful error, we hold this error was damnum absque injuria in a sense and upon the facts, and disallow it.

V. Upon the trial the court permitted the State in rebuttal to offer testimony as to the general reputation of witness Compton for honesty and veracity and also permitted a witness to testify that said Compton had told the witness, one J. M. Williams, before the theft of the horses became public, that he' (Compton) had bought a mare from William Maggard, and that the witness need no longer keep a lookout for-a horse for him; there was other evidence in the case showing that Compton had requested Williams to keep a lookout for and to buy a horse for him.

Ordinarily, no legal excuse appearing, the admission of this evidence would be error; the gravity of which as to whether reversible error, depending on whether upon the facts we could say as a matter of law that its admission so prejudiced the case of defendant as to have resulted in a denial to him of a fair and impartial trial. Upon the weight of it, or touching the effect of it upon the defendant’s case, we need not pass, but will determine the point upon the. cold point of law involved as applied to the facts and conditions presented in the case.

This testimony was offered in rebuttal after defendant had closed his case. The defense had sought to impeach the testimony of the witness Compton by almost every means known to the law of evidence, though, as we have stated, the evidence which he had given for the State was colorless and comparatively worthless. The defense had proven the conviction of Compton of petit larceny; they had shown many variant statements in pais as having been made by him, and the theory of the defense which was fully developed was that Compton had himself stolen the two horses and sold them to defendant and Will Maggard. This was both the shadow and the substance; the woof and the warp .of defendant’s ease. They assailed him with “horse, foot and dragoons,” figuratively — and as it may be said upon the facts here, literally also — alone omitting in their efforts to impeach him and break him down, impeachment by witnesses as to his general reputation for truth and veracity. Conceding the general rule of inadmissibility, as applying ordinarily to the evidence elicited, does the well-known exception apply upon the doctrine of sustaining or rehabilitating an impeached witness?

We need not here pick and choose with care and nicety, the varying methods known to the doctrine of rehabilitation as dependent upon the manner of impeachment used or sought so to be. All attacks save one, to wit, impeachment by witnesses -for bad reputation for truth and veracity, were used.

Where a witness is impeached by proof of variant acts or statements, relevant evidence of the witness’s prior statements correspondent with his testimony, are admissible for the purpose of rehabilitation. [State v. Grant, 79 Mo. 113; State v. Hatfield, 72 Mo. 518; State v. Whelehon, 102 Mo. 17; State v. Sharp, 183 Mo. l. c. 735.]

In the case of State v. Sharp, supra, this court said:

“But, even under such circumstances, whether evidence can be introduced of former declarations of the witness to corroborate his testimony at the trial, the authorities are in much conflict. The trend of the decisions of this court, however, seems to be that such declarations are permissible.
“Thus, in the case of State v. Grant, 79 Mo. 113, it is ruled that if an attack be made upon the character of a witness-, it is then permissible to prove that the witness had made statements consistent with those made as a witness. That case was followed in the subsequent case of State v. Whelehon, 102 Mo. 17.
“In State v. Taylor, 134 Mo. 109, it is ruled that there is no doubt but that when a witness is impeached by the medium of alleged contradictory statements, evidence may be introduced in rebuttal of statements made by him of a similar character theretofore made in corroboration of statements made by him on the trial. It is true that the same distinguished judge wrote both these cases, and that in the Taylor case, he said that the rule was stated too broadly in Grant’s case, by which he clearly meant that in Grant’s case the rule was held to apply to all cases in which the character of the witness is attacked upon any ground, while it only applies in/ case the witness is attacked upon the ground of having made contradictory statements, and it is sought to impeach him upon that ground.
“In Hobbs v. State, 133 Ind. 404, it is said: ‘ “If the witness has not been impeached, by proof of his having previously made statements inconsistent with his testimony, there seems to us to be no sufficient reason for the introduction of the corroborating evidence. But it is otherwise, if the witness has been thus impeached; it appears then to be proper to give the party who called the witness an opportunity to support him, by proving that the witness had, on other occasions, stated the facts to be as he represents them in his testimony. There are several cases directly in favor of the admission, under these circumstances, of this corroborating evidence. [Cooke v. Curtis, 6 Harr. & Johns. 93; Lessee of Packer v. Gonsalus, 1 Serg. & Rawle, 536; . . . Lessee of Wright v. Deklyne, 1 Peter’s Cir. Ct. 203; People v. Vane, 12 Wend. 78.] ” We may add to the citations of Mr. Justice Blackford the more recent cases of Dailey v. State ex rel., 28 Ind. 285; Brookbank v. State ex rel., 55 Ind. 169; Hodges v. Bales, 102 Ind. 494; Dodd v. More, 92 Ind. 397; Carter v. Carter, 79 Ind. 466. The appellants further contend that if corroborative statements may be proven under such circumstances, the impeached witness should not be permitted to testify to such statements. We know of no statute or rule declaring such witness incompetent, and, under the practice prevailing, the trial court or jury being the judges of the credibility of the witnesses, and being enabled to weigh his testimony in the light of his impeachment, we can see no good reason for excluding him'as a witness.’
“Now the facts with respect to this question, as disclosed by the record, and as conceded by defendant, show beyond any question that the object of defendant in introducing the deposition of the witness was for the purpose of impeaching him by showing that his testimony upon the trial was inconsistent and in conflict with what he stated in the deposition with respect to the same matter, by reason of which defendant insists that he stood ‘fairly and squarely impeached.’ It thus clearly appears that the facts disclosed by the record bring this case within the exception to the general rule, and that the court did not err in admitting in evidence the testimony of Mrs. Dooley.”

"We are constrained, therefore, for the reasons given, and for others appearing in this case, not necessary here to set out, to disallow this assignment of error.

On the cognate point raised by defendant,. that it was error to permit the State in rebuttal to offer the testimony of witnesses as to the general reputation of the witness Compton, in the absence of defendant’s offering witnesses to impeach said Compton, we likewise hold that since the defense had sought to impeach this witness in every other legal way except by offering witnesses as to his general reputation for honesty and truth and veracity, evidence by witnesses called by the State in rebuttal on the general reputation of Compton, was admissible. [State v. Weisman, 238 Mo. 547; State v. Christopher, 134 Mo. App. 6.] It may well be that the novel conditions presented by this record, in this, that the testimony in chief of said Compton for the State was colorless and valueless, and the fact that all of the objectionable and damaging testimony-coming from him was elicited by defendant on cross-examination, would of themselves excuse all of the alleged errors of which defendant complains in this behalf. We merely suggest this as plausible, without passing on it here.

We have deemed it our duty, since defendant is not represented in' this court by counsel, to thus carefully go over the record, to find if there be error in it to defendant’s prejudice. We have found none of sufficient moment to justify interference, and since in our view the conviction was right, think it ought to be affirmed, and we so order.

Brown, P. J., and Walker, J., concur.