text:
    THE STATE ex rel. ALBERT HOWARD, Collector, v. ESTATE OF HENRY TIMBROOK; I. M. TIMBROOK and G. W. TIMBROOK, Executors, Appellants.
    Division Two,
    February 27, 1912.
    1. ' TAX BOOK: Failure to Vérify by Affidavit. The county assessor’s tax book was not verified by affidavit under Sec. 11392, R. S. 1909. T-he book contained an assessment of personal taxes against the Timbrook estate. • The board of equalization ignored that assessment and assessed the personal property of the estate as “omitted property,” and the defendant executors appeared before the board and obtained deductions. Held, that the failure to verify the tax book by affidavit does not render invalid the tax assessed by the board against the Timbrook estate. The provision for an affidavit is directory.
    2. COUNTY BOARD OF EQUALIZATION: Changing Valuation on Assessor’s Book: Adding' or Dropping Property. The county board of equalization has power to raise or lower the valuation of all the property on the assessor’s book on a percentage basis. The board can add to the book omitted property, and drop from it property placed thereon by the asses- . sor.
    3. ASSESSMENT OF TAXES: Property-Owner Since Death. A complaint that the assessment was made against “H. Timbrook” after he was dead, is answered by calling attention to the fact that the property was assessed as of date June 1, 1905, at which time Henry Timbrook was living.

      4. -: Statutes Governing. Tbe assessment for tbe year' 1905 was properly made under See. 11401, R. S. 1909; and Sec. 11403 gave tbe board of equalization power to equalize that assessment in tbe same way as in other cases.
    Appeal from Caldwell Circuit Court. — Hon. Francis H. Trimble, Judge.
    Akbtkmed.

      Oscar L. Smith for appellants.
    (1) The supplemental tax booh and the assessor’s book after the corrections, adjustments and additions to the assessor’s book were made by the board, fixed the liability against “H. Timbrook” almost two years after his death and while the estate was in the hands of the executors. State ex rel. v. Kendrick, 159 Mo. 631; R. S. 1909, sec. 11348; Searing v. Heavy-sides, 106 El. 85. (2) The assessor’s book made by Gomer G. Jones was void because it was not signed or certified by him as required by statute. The court erred in refusing declaration of law No. 2. R. S. 1909, sec. 11392; State ex rel. v. Schooley, 84 Mo. 447; State ex rel. v. Seahorn, 139 Mo. 582. (3) The assessor’s book was void as to the assessment of the Henry Tim-brook estate, because it was based on the assessment list given in by Tabitha Timbrook, while the estate was in the hands of the executors. The court erred in refusing declaration of law No. 1. R. S. 1909, secs. 11348 and 11355; Searing v. Heavysides, 106 El. 85.' (4) The assessment of Henry Timbrook in 1906 of his personal’property owned by him June 1, 1905, was void for the reason that there is no authority of law for assessing personal property for back years. Hannibal ex rel. v. Bowman, 98 Mo. App. 107; Welty on Assessments, p. 36; Cooley on Taxation (2 Ed.), p. 42, note 3; Hamilton v. Amsden, 88 Ind. 304; Cape Girardeau v. Buehrman, 148 Mo. 198. (5) The assessment of “Henry’Timbrook” by the assessor long after his death did not fix a liability against his executors or his estate. The assessment is the very inception of taxation; and the act of the assessor in assessing personal property fixes the charge only against the person named by the assessor. R. S. 1909, secs, 11487, 11848, 11355, and 11351; State ex rel. v. Burr, 143 Mo. 209; State ex rel. v. Thompson, 149 Mo. 441. (6) If the board of equalization was attempting to make an original assessment under the provisions of Sec. 114Ó7, R. S. 1909, its acts were void because it did not come within it. The board had no authority to add to the assessor’s book the same items that were already on the book. Such items had been “omitted.” Section 11354, R. S. 1909, is the only provision, under which the board could act, where the assessor’s book contained the assessment. As the board undertook to come within the section by adding “omitted” property, it was bound to give notice to the “owner.” The property may have had a number of owners first and last. Then which “owner1?” Evidently the “owner” on June 1,1905, who was on that day liable for the taxes. Henry Timbrook having been dead almost two years, the action of the board was void. The executors were, at most, only trustees, and were not empowered to fix, authorize or consent to a liability. R. S, 1909, sec. 11407; Hannibal ex rel. v. Bowman, 98 Mo. App. 107; ■State ex rel. v. Bank, 180 Mo. 717; State ex rel. v. Kendrick, 159 Mo. 631; Cape Girardeau v. Bue'hrman, 148 Mo. 198; Cooley on Taxation (2 Ed.), pp. 287, 365; Appeal of Powers, 29 Mich. 504; State ex rel. v. Railroad, 114 Mo. 1; State ex rel. v. Edwards, 136 Mo. 360.

      D. E. Adams and Wm. Fitch for respondent.
    (1) Omission of property from assessment may occur either by never having been placed on the list or book, or by being listed, but under such circumstances as to render it not a valid assessment. In •either ease the legal effect is the same. It is not the basis of a tax levy that can be enforced; it is “ omitted property.” Snch is the status of the property in question in this suit. The list for $4150 given by Henry Timbrook to the township assessor in 1905 was void because Caldwell county was not legally operating under the township organization law, under the decision in the Gribson case. This theory was conceded by all parties to this suit, and the case was tried on that theory. The list given to the assessor by Tabitha Timbrook and signed by her was void and furnished no basis for assessment, because she had no authority to furnish a list; the property was in the hands of the executors. This is likewise conceded to be the status of that proceeding. Such being the condition of the property, it was not changed by the fact that Jones, the assessor, entered it on his book. Its legal status was still “omitted property” when the county board of equalization proceeded to assess it under the provisions of the laws of 1903, page 253 (now Sec. 11407, R. S. 1909). (2) The power of the county board of equalization to assess “property omitted” from the books then under examination, under the Laws of 1903, page 253, is no longer a question. It has been sustained in the following cases: State ex rel. v. Harrison, 226 Mo. 158; Ex pate Sanford, 139 S. W. 376; State ex rel. v. Timbrook, 145 Mo. App. 368; Western Tie & T. Co. v. Pulliam, 237 Mo. 1. (3) Appellant contends that the Jones assessment book, being void because not certified, is not a basis of action by the county board of equalization, and the only legal act they could do was to adjourn. The legal consequences of this status would have been that they were not entitled to pay for their services, because there was nothing they could do. We answer this contention by saying that the evident intention of the Act of 1903, page 253, was to meet just such cases as is presented in this record. When the board found that property had been omitted from assessment from whatever cause, it was the clear duty of the board to see that such property did not escape its just portion of the taxes by an oversight or technical error of any one, or the willful failure or neglect of someone to perform his duty. It was the duty of the executors of this estate to give a list of the estate property to the assessor under the provision of Section 9151, as amended, Act 1903, page 256; but having failed to do so, would take advantage of their own neglect.
   ROY, C.

This is a suit for personal taxes for the year 1906 based on the assessment for 1905 of the personalty of Henry Timbrook, who died September 1, 1905. The suit was begun in the probate court of Caldwell county, by the mere filing of the taxbill. After a judgment for plaintiff, defendants appealed to the circuit court, where, at the June term, 1908, judgment again went against them, and they have ajjpealed to this court.

In March, 1906, in the case of Burns v. Gibson, 195 Mo. 251, this court held that township organization in Linn county was illegal because of the unconstitutionality of the township organization law. Caldwell county had, up to that time, been operating under township organization under the same law. Every one after that conceded that the assessments made prior to that time in Caldwell county were void. The result was deplorable so far as its immediate effects were concerned, as it left the fiscal affairs of the county for the time being in a chaotic condition. Township organization was by common consent abandoned, and the Governor appointed R. W. Napier as collector and Gomer C. Jones assessor.

On June 14, 1905', Henry Timbrook signed, swore to and delivered his assessment list to the township assessor, showing $4150 assessed valuation. On the death of Henry Timbrook, his two sons, I. M. and G. W. Timbrook, took charge of his estate as his executors.

After his appointment, the assessor made an assessment of the property in the county subject to taxation on June 1,1905, and as a part of that assessment he received from Tabitha Timbrook, widow of the deceased, an assessment list, signed and sworn to by her, in which she returned as the property of Henry Timbrook the amount of $64,500 personal property; and that amount was entered in the assessor’s book as the property of H. Timbrook owned June 1, 1905.

That book was not verified by affidavit under section 11392, Revised Statutes 1909.

The board of equalization on April 2, 1907, on the theory that the assessment of H. Timbrook as shown on that book being based on the list made by Tabitha Timbrook was void, made the following entry of their proceedings in regard thereto:

“In the matter of the assessment of the estate of Henry Timbrook, deceased: It appearing to the board of equalization that personal property belonging to the estate of Henry Timbrook, deceased, has been omitted from the assessor’s book, now under examination by this board, for the year 1905 for taxes of 1906; it is therefore ordered by the board that the estate of Henry Timbrook, deceased, be added to said assessment book with personal property in the city of Braymer and Braymer school district and valuation as follows:
“Money on hand.................. $ 100.00
“Aggregate of solvent notes, secured by mortgages .................. 64,350.00
“Household and kitchen furniture... 50.00
“Total personal ' $64,500.00
“The above property shown on the .records of said estate in the Probate Court of Caldwell County, Missouri. ’ ’

And on April 22 the board made the following entry of its proceeding's:

“In the matter of the assessment of the Henry Timbrook estate: Now this 22nd day of April, 1907, the county board of equalization being in session, pursuant to adjournment on the 3rd day of April, 1907, the matter of the order heretofore made on the 2nd day of April, 1907, assessing the personal estate of Henry Timbrook, deceased, for the year 1905, for the taxes for the year 1906 and adding said assessment to the assessment book for that year, being taken up by the board, it appears to the bound from the return of the sheriff of this county that a certified copy of the said order making said assessment, together with a notice that this board of equalization would meet on the 22nd day of April, 1907, to hear appeals from such orders, was served upon M. P. Timbrook, one of the executors of said Henry Timbrook estate, on the 12th day of April, 1907, and now appear before this board M. F. Timbrook and George W. Timbrook, executors of said estate, and make claim that notes in their hands as such executors executed by Flora and F. L. Blacketer, in the aggregate, including interest, $1,528.49; and that notes executed by D. Thait in the sum of $1100' were not in fact assets of said estate; and that notes including interest, in their hands as follows, to-wit: George Otto, $619.73, IT. A. Timbrook, $550, John Pennington in the sum of $720 and Henry Bush-nell in the sum of $3,384.74 were wholly insolvent and uncollectible. The board thereupon takes the matter under advisement until tomorrow. ’ ’

And on April 23, the following entry of its proceedings: “The board of equalization being in session pursuant to adjournment on April 22, 1907, in relation to the matter of the assessment of the estate of Henry Timbrook, deceased, the board having duly considered the claim made by the executors thereof doth make the following holding and order, to-wit: That the assessment heretofore made herein be reduced by the following items and amounts, to-wit:

“Notes of Plora and F..L. Blacketer . .$ 1,528.39
“Notes of D. Thait.................. 1,100'.00
“Notes of H. A. Timbrook............ 550.00
“Notes of John Pennington.......... 720.00
$ 3,898.39
“So that said assessment against said estate will stand as follows:
“Money on hand ....................$ 100.00
“Aggregate of solvent notes.......... 60,451.61
-“Household and kitchen furniture .... 50'.00
“Total .....................$60,601.61
“That said assessment be placed on the assessment book for 1905 for taxes of 1906 and on the supplemental tax book for taxes of 1906 and that, the clerk of the county court extend the taxes on the same as provided by law.”

At the March term, 1907, the county court made the following entry on its records:

“Now at this time comes B. W. Napier, county collector of Caldwell county, who files his lists of unpaid real estate and personal taxes, which said lists were examined, corrected and approved by the court and ordered placed in a supplemental tax book and delivered to Frank L. Bowman, county collector, who shall proceed to collect said taxes as rapidly as possible. ” •

The supplemental tax book was delivered to the collector for collection March 20, 1907.

The cause was tried without a jury. The defendants asked the following instructions, which were refused : • -

Number 1 was a declaration in effect that the list made by Tabitha Timbrook was void and that plaintiffs could not recover.

Number 2 declared that the assessor’s book for 1905, not being sworn to, was void and the tax based thereon was void.

Number 3 was in effect the same as number 2.

Number 4 declared that the board of equalization at its session in 1907 had no power to make an original assessment ag’ainst Henry Timbrook for the property owned by him June 1, 1905.

Number 5 declared that the acts of the board of equalization shown in evidence did not constitute a valid assessment.

I. The appellants contend that the assessor’s book and all proceedings based thereon are void, because the book was not verified by the affidavit of the assessor.

The law of 1877 worked a revolution in the collection of taxes in this State. Prior to that time all lands in the county on which taxes were delinquent were advertised en masse, and, upon an order of the county court, were sold in separate tracts, but all at the same time. The proceedings culminating in such sales were summary in their nature and practically ex parte, and were, on that account, strictly construed. The natural result followed. The lands sold for very little, often not bringing the taxes. The deeds made pursuant to such sales were almost uniformly held void by this court on account of some defect in the proceedings. The fact that thousands of dollars worth of property was sold for the taxes and costs or even less under such circumstances as to furnish practically no notice to the owner that such sale would occur, shocked the moral sense, and the law of strict right was properly held to apply to all such sales.

So far as we have been able to discover, the old summary method' is still used in all the other States of the Union. Such being the case, the language of the text-books on the subject of taxation is all deeply impregnated with the idea of strict construction.

Judge Cooley states the rule by quoting from the opinion of the Supreme Court of Maine in Brown v. Veazie, 25 Me. 359, as follows: “Sales of real estate for the non-payment of taxes must be regarded in a great measure as an ex parte proceeding. The owner is to be deprived of his land thereby; and a series of acts preliminary to the sale are to be performed to authorize it on the part of the assessors and collector, to which his attention may never have been particularly called; and experience and observation render it notorious that the amount paid by purchasers at such sales is uniformly trifling in comparison with the value of the property sold. It has therefore been held, with great propriety, that, to make out a valid title under such sales, great strictness is to be required; and it must appear that the provisions of law preparatory to and authorizing such sales have been punctiliously complied with.” [2 Cooley on Taxation (3 Ed.), 913.]

- While this is not a suit for real estate tax, it is proper to consider the effect which, the result of such summary proceedings have had on the decisions of the courts. After the enactment of the Law of 1877, no reason existed for strict construction. The. summary remedy was ended. Every man became entitled to his day in court, the same as in case of the foreclosure of a mortgage on his real estate, so that he could not be sold out without actual knowledge unless he were a non-resident, and even then he had as effective notice as was possible.

While the other .States retain the summary method, more or less modified in some cases, many of them have, in addition, statutory provisions for suits to enforce the tax. In snch suits the proceedings in the assessment of property and the levying and collecting of taxes are liberally construed.

In Hixon v. Oneida County, 82 Wis. 515, which was an injunction to prevent the collection of a tax, it was held that the collection could not be defeated by showing that the tax was irregular or void, but that it must appear that it was inequitable.

In Conn. Mutual Life Ins. Co. v. Wood, 115 Mich. 444, the court said: “It is essential to just and equal taxation that these proceedings be such as to convey a good title to the purchaser. Courts should liberally construe the revenue statute, so that the revenue shall be collected. ’ ’

In Roads v. Estabrook, 35 Neb. 297, it is said: “The principal objections to the proceedings are that the property was not listed by the owner, and no refusal to list, or other reason why not so listed, was given by the assessors; that the assessor’s oath was not attached to the rolls; that the name of the owner was not, in most instances, given, and in such instances that the lots were not assessed as unknown, and other like irregularities. No claim is made that the amounts charged were excessive, or that the payment thereof would burden the defendant beyond his fair proportion of the taxation required for the needs of the public. It has been frequently held by this court that in equitable proceedings to foreclose liens fo.r taxes we will not consider objections which go only to the manner of the assessment, or the levy of the tax. ’ ’

Judge Cooley quotes from Railroad v. People, 116 Ill. 401, as follows: “It is the settled doctrine . . . that anyone objecting to the enforcement of a tax assumes the burden of showing its invalidity. The. presumption is that the tax is just, that all officers who have had any official connection with it have properly discharged their duties.” [2 Cooley on Taxation (3 Ed.), 891.]

The consensus of opinion in other States is to the same effect.

It must be conceded that this court did not at first apply the rule of liberal construction to the Law of 1877.

Section 11392, Revised Statutes 1909, provides that the assessor shall make out and return to the county court a fair copy of the assessor’s book verified by his affidavit. In three- cases brought under our present law for the enforcement of the payment of taxes on land, it was held that when the assessor’s book was not so- verified the tax was void. [State ex rel. v. Cook, 82 Mo. 185; State ex rel. v. Schooley, 84 Mo. 447; State ex rel. v. Phillips, 102 Mo. 664.]

Section 11425, Revised Statutes 1909, requires that the tax book shall be authenticated by the seal of the court. In Railroad v. Apperson, 97 Mo. 300; an injunction proceeding to restrain the collector from selling personal property to pay taxes, it was held that, as the tax books were not authenticated by the seal of the county court, they were void, and that the collector, in making the levy, was a trespasser ab initio.

All those eases applied the rule of strict right. Under those cases the absence of the assessor’s affidavit to his book was fatal to the tax, and so was the absence of certification und.er the seal of the court to the tax book.

The next case was State ex rel. v. Bank, 120 Mo. 161. The point was made in that case that the assessor’s affidavit was attached to the original assessor’s book mentioned in section 11370; and not to the copy thereof provided for in section 11392. Judge Sherwood (1. c. 172) held that those matters were not jurisdictional, and that jurisdiction had already attached when the assessor made out his assessment books, and that all subsequent proceedings were directory and within the domain of section 11383, which provides that no assessment or taxes shall be consid ered illegal on account of any informality in maldng the assessment. The result of that decision was the destruction of the rule of strict construction in our tax law as it has stood since 1877, and the reasons therefor are clearly stated and will not be repeated here.

The case of Burke v. Brown, 148 Mo. 309, was decided under the Law of 1872, and for that reason does not contravene what is here said.

The Phillips case, 137 Mo. 2591, reaffirmed the doctrines of the Bank case, supra, laying still greater stress on the curative statutes, and holding that after the assessor’s book was made outjurisdiction attached, and that everything else was directory.

Then followed Taft v. McCollough, 135 Mo. 588, in which it was held that the failure of the clerk to authenticate the collector’s book by theseal of the court did not invalidate the tax. The assessor’s affidavit to his book was held sufficient in form, but the court did not say, and was not called on to say, what would have been the result if there had been no affidavit.

In Wilson’s case, 216 Mo. 286, Judge Woodson says: “At an early date in this State, under the statutes then in force, some of the objections here urged by defendant might have been held valid, but the more liberal statutes of recent years and the decisions of this court construing them deprive these various assignments of all merit and' reduce them to the rank of technical objections.”

Section 11521, Revised Statutes 1909, provides: “No irregularity in the assessment roll, no omission from the same, nor mere irregularity of any kind in any of the proceedings, shall invalidate any such proceeding.”

The same legislative power which provided for the assessor’s affidavit, has also provided that the “omission” of such matters shall not invalidate the tax; in other words sneh provision fo.r an affidavit is directory.

The'mere absence of the affidavit to the assessor’s book should not in this case invalidate the tax sued for. By section 11344 the assessor is required, on entering office, to take an oath in substance the same as that required in the affidavit to the assessor’s book, and the presumption is that he took that oath. Section 11403 requires the assessor and the other members of the board of equalization to take an oath “fairly and impartially to equalize the valuation of all the taxable property in such county;” and it is presumed they took that oath in this case.

. The board of equalization had power to raise or lower the valuation of all the property on that book on a percentage basis. [Black v. McGonigle, 103 Mo. 193.] It could add to the book property, which the assessor had omitted, and drop from it property which he had placed thereon, and could raise or lower the value of any item of property on that book. Any citizen had the right to be heard on any such questions. The functions of this board and the time of their meeting are generally known to the citizens; and it is a matter of common knowledge that many people attend the sessions of the board.

The record in this case shows the action of the board by which the assessment of the county was finally completed and equalized. After such reconsideration of the assessor’s book by the board of which the assessor was himself a member, surely the absence of the affidavit from the assessor’s book as returned to the county court should not invalidate the assessment, especially in view of the curative statutes.

In addition to the above considerations, the defendants, as such executors, appeared before the board and were heard fully. They made certain claims fo.r deductions from the amount of the assessment, and some of those claims were allowed by the board. They made no objection to the assessor’s book on account of the absence of the affidavit. If this tax should be •declared void on account of such informality, the only result would be that the public burdens would be borne by the other property-owners of the county, and this estate would entirely escape from its équitable share thereof.

II. Instruction numbered one was properly refused as the record of the board showed that the assessment of Henry Timbrook was made as of omitted property, and was not based on the list given in by Tabitha Timbrook. By Section 11407, Revised Statutes 1909, the board had power to assess omitted property.

IH. The complaint that the assessment was made against “H. Timbrook” after he was dead, is answered by calling attention to the fact that the property was assessed as of date June 1, 1905, at which time Henry Timbrook was living, and the assessment was properly so made.

IY. The assessment for the year 1905 was properly made under section 11401; and section 11403 gave the board of equalization power to equalize that assessment in the same way as in other cases.

The merits of the other points raised by appellants are disposed of in the above conclusions and we will not separately consider them.

The judgment is affirmed.

Blair, G., not sitting.

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


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    THE STATE v. WILLIAM EASTHAM, Appellant.
    Division Two,
    February 27, 1912.
    1. EVIDENCE: Testimony of Deceased Witness: At Trial of Accomplice. A juror at the former trial of an accessory or accomplice in the homicide cannot testify for defendant what a deceased witness testified at that trial. It is only when a witness has testified in a former trial of the same criminal ease that the testimony of such witness, if dead, becomes admissible.
    2. -: Impeachment: Testimony at Preliminary of Accomplice. It is always competent to discredit or impeach a witness by asking him if at the preliminary examination he had not testified to a state of facts at variance with his testimony at the trial, and to call other witnesses to prove what his testimony was at such examination, if during the trial his attention is called to the time and place of the prior inconsistent statement; and it matters not whether such prior statement was made in court, as a witness in the same or a different case, or made outside of court at a time when the witness was not under oath.
    3. INSTRUCTIONS: Self-Defense: Shooting in Defense of Brother: Not Specifying Crime. An instruction which deprives defendant of the right to defend his brother, if such brother sought or provoked the difficulty in which deceased' lost his life, regardless of the intent with which said difficulty was sought or provoked, is error. Nor should the instruction fail to inform the jury of what crime defendant is guilty if he killed deceased in protecting his brother after the latter had made a common assault upon deceased without felonious intent.’
    4. -: -: -: Voluntarily Entering Difficulty: Intending Common Assault: Manslaughter. The right of self-defense is not entirely destroyed by bringing on or voluntarily entering into a fight when only a common battery is intended and there is no design to take life or inflict great bodily harm; and if after wrongfully provoking a fight, intending only a common assault, the aggressor is forced to slay his adversary to save his own life, he is guilty of manslaughter in the fourth degree, but not of a higher crime; and if defendant’s brother intended only an ordinary battery on deceased, the brother, after deceased assaulted him with a pistol, had the right to kill deceased without being guilty of any greater crime than manslaughter; and if defendant saw and knew all that took place between his brother and deceased, defendant had the same right to protect his brother after deceased shot him that the brother had to protect himself. Consequently, there being evidence to establish these facts, an instruction telling the jury that they could convict defendant of murder regardless of the intent with which the brother began the assault, and thereby precluding a conviction of manslaughter, was error against defendant — although there was substantial evidence to support the verdict of murder.
    5. -: Manslaughter; Necessary Defense of Brother. And under such circumstances an instruction on manslaughter in the fourth degree is misleading and not applicable to the evidence, if it tells the jury that they may convict defendant of manslaughter,' although the killing was not done .in the necessary defense of his brother.
    Appeal from Ripley Circuit Court.- — Ron. J. G. Sheppard, Judge.
    Reversed and remanded.

      J. L. Short, John R. Rainey and Ernest A. Green for appellant.
    (1) The court erred in refusing to permit the witness introduced by the defense, McAutrey, who served on the jury in the case of State v. George East-ham, involving the same state of facts as the one at bar, to testify as to what was, and to narrate the testimony of the witness Nellie McKinney, given in the trial of the case of State v. George Eastham — said witness Nellie McKinney being dead at the time of the trial of the canse at bar. Carp v. Insurance Co., 203 Mo. 340; State v. Able, 65 Mo. 357. (2) The court erred in permitting the witness introduced by the State, James K. Langford, over the objection and exception of the defendant, to testify by way of impeachment, as to what was the testimony of Josie Barnett, a witness for the defendant, in the preliminary examination in the case of State v. George Eastham; said testimony being secondary and not tlie best evidence. E. S. 1909, sec. 5033; Bradley v. City, 901 Mo. App. 424; Estes v. Eailroad, 111 Mo. App. 3. (3) Tbe court erred in giving to the jury, of its own motion, instruction 5. Said instruction does not correctly declare tbe law applicable to tbe defense of defendant’s brother, under tbe testimony in this cause. State v. Harper,-149 Mo. 524; State v. Darling, 202 Mo. 15Ó; State v. Gilmore, 95 Mo. 560; State v. Partlow, 90 Mo. 608.; State v. Little, 228 Mo. 305; State v. Webb, 216 Mo. 388; State v. Stultz, 97 Mo. 26-; State v. Heatb, 221 ■ Mo. 589; State v. Gordon, 191 Mo. 124. (4) Tbe court erred in giving to tbe jury, of its own motion and over tbe objection and exception of defendant, instructions 6 and 7, relative to the law of defense of one’s brother; said instructions do not correctly declare tbe law as applicable to tbe facts of this ease. State v. Harper, 149 Mo. 524; State v. Darling, 202 Mo. 150; State v. Gilmore, 95 Mo. 560‘; State v. Partlow, 90 Mo. 608; State v. Little, 228 Mo. 305; State v. Webb, 216- Mo. 388; State v. Stultz, 97 Mo. 26; State v. Heatb, 221 Mo. 589; Stgie v. Gordon, 191 Mo. 124.

      Elliott W. Major, Attorney-General, and John M. Dawson and Campbell Cummings, Assistant Attorneys-General, for tbe State.
    (1) Tbe offer was to show what tbe deceased witness Nellie McKinney testified to in tbe George East-barn case. Appellant did not offer tbe evidence she gave; in other words, his offer was a narration on tbe substance of her evidence in tbe George Eastham case, be it competent or incompetent in this case. In order to have this exception avail him in this court, be should have offered tbe evidence, thereby informing tbe court that tbe evidence offered was material to tbe issue. For aught this court knows, tbe evidence of Nellie McKinney in tbe George Eastham case would have been wholly improper and immaterial to tbe facts in this case. Furthermore, there were several eye-witnesses, both for the State and appellant, who testified in detail to all the facts and circumstances surrounding the killing; therefore, whatever Nellie McKinney’s testimony might have been in the George Eastham case, she could not have seen more or less that occurred at the killing than some or all of the other witnesses, and the rejection of the evidence was not reversible error. Moreover, if appellant desired to produce before the jury the evidence of. Nellie McKinney, he should have produced the shorthand notes of the court stenographer. Bradley v. Spikardsville, 90 Mo. App1. 424; Estes v. Railroad, 111 Mo. App. 4. Witnesses can be impeached by showing they made contradictory statements in the former trial. Hamberger v. Rinkel, 164 Mo. 398; Underhill on Crim. Ev., sec. 238. (2) The appellant complains of instruction 5, in that said instruction does not correctly declare the law applicable to the defense of appellant’s brother under the testimony in this cause. Appellant, to sustain this point, cites numerous authorities; however, it will only be necessary to notice the Partlow case, as the other authorities are founded upon the doctrine announced in that case. That case made the distinction between the right of perfect and the right of imperfect self-defense. This distinction has been kept in view by this court. How far and to what extent a defendant will be excused, or is excusable in law, must depend upon the nature and character of the act he was committing, and which produced the necessity that he should defend himself. If, however, the defendant was in the wrong, he himself was violating the law, or in the act of violating the law, and, on account of his own wrong, was placed in a situation where it became necessary for him to defend himself against an attack made upon himself, which was superinduced or created by his own wrong,- then the law justly limits his right of self-defense and regulates it according to tlie magnitude of his own wrong. TMs instruction announces tlie doctrine of tMs court in State v. Part-low, 90 Mo. 608; State v. Cordon, 191 Mo. 114; State v. Sebastian, 215 Mq. 58, 84. The instruction leaves it to the jury as to whether or not appellant had good reason to believe and did believe that his brother was in impending danger, and if he did believe it, then the instruction told the jury that appellant was justified in using such force as appeared to Mm from the surrounding circumstances to he reasonably necessary for the purpose of defending himself against such peril. The instruction does tell the jury that they must find that the danger to appellant’s brother actually existed before appellant had the right to kill, but, on the other hand, it tells the jury that if they find from all the facts that appellant believed that great danger was about to befall Ms brother, and that peril was imminent, then and in that case, appellant had the right to defend his brother. 2 Bishop on Crim. Law (8 Ed.), sec. 701; State v. Beckner, 194 Mo. 299. Instructions 6 and 7 simply told the jury that if appellant’s brother sought, provoked or brought on such difficulty, then appellant would be guilty, but that appellant would be justified in doing for Ms brother what the brother would be justified in doing for himself. We see no objection to these instructions. State v. Bailey, 190 Mo. 257. (3) A careful reading of the transcript of the bill of exceptions will show that the appellant did not except to the action of the court to the giving of instructions; therefore, the instructions cannot be reviewed here. An exception to an instruction should be made at the time it is given. An objection made for the first time in the motion for new trial is not timely. State v. Kretchmar, 232 Mo. 29; Harding v. Railroad, 232 Mo. 444. •
   BROWN, J.

At the November term, 1910, of the circuit court of Ripley county, defendant was convicted of murdering one Charles Stacey, and appeals from a judgment of that court fixing his punishment at thirty years in the penitentiary. The homicide which resulted in this conviction occurred on a public road in front of the home of defendant’s father, in Ripley county, near an open spring. The evidence indicates that defendant and his brothers Willis and George were angry with deceased because of a report that deceased had accused Willis of murdering his wife.

On Sunday, June 10', 1906, deceased passed the Eastham home in company with a young lady, en route to church. About noon of the same day, as he returned from church, in company with several young people, he stopped at the Eastham spring to drink. Defendant and his brother Willis were at or near the spring. After drinking, deceased started to leave, when George Eastham, another brother of defendant, appeared at the door- of the Eastham home, some twenty yards away, and hallooed to Willis Eastham to “make Stacey take back the lies he had told.”

According to the testimony of eight witnesses for the State, Willis Eastham was at first disinclined to precipitate any difficulty with Stacey, but defendant and George Eastham demanded that the matter be settled then. On hearing George halloo to Willis, deceased stopped and said he did not want any trouble then, but would see defendant at 2:30 that day. Some of the State’s witnesses testified that defendant drew a revolver and walked up to within a few yards of deceased and cursed him; that Willis then picked up some rocks and demanded that Stacey take back the report he had circulated. Stacey denied circulating the report about Willis killing his wife. George Eastham then ran up and began striking deceased with his fists; whereupon defendant shot deceased several times. Deceased then drew a revolver and killed Willis East-ham, and shot at George Eastham, wounding him slightly. The shots fired by defendant caused Stacey, the deceased, to fall and drop his pistol, whereupon George Eastham picked up the pistol and struck deceased over the head with it, crushing his skull. A physician testified to five gunshot wounds in the hody of deceased; that any one of three of them was necessarily fatal; and also that the .blows upon his head were likewise sufficient to produce death.

Defendant denied drawing his revolver until he saw a revolver in the hands of deceased; that his brothers, Willis and George, were both unarmed; and that he did not shoot until deceased had killed .his brother Willis and was shooting at his brother George.

George Eastham testified that before he left his father’s house he saw Stacey draw a revolver; and that he did not strike deceased, but only tried to grab the revolver out of his hand to prevent the killing of his brother Willis.

After the homicide, defendant fled from the State, and three or four years later was captured in the State of Arkansas.

Defendant seeks a reversal' on account of the admission of alleged improper evidence on the part of the State; and the exclusion of legal evidence offered by defendant. He also contends that the instructions given by the court of its own motion contain .reversible error.

OPINION.

The record discloses that several months before defendant was placed on trial, his brother George had been acquitted of killing or participating in the killing of Charles Stacey; and one Nellie McKinney, since deceased, having testified at that trial, the defendant called one McAutrey, who served as a juror in said trial, and offered to prove by him the facts testified to by said deceased witness. The State objected to that evidence on the ground that the testimony of Nellie McKinney was given upon the trial of a different case; and the court sustained the objection.

However much concert of action there was between defendant and George Eastham in the unfortunate tragedy which resulted in Stacey’s death, the evidence of the deceased witness would not necessarily have been the same on both trials had she lived to testify again.

It is a well-known fact that a great many witnesses in criminal cases shade or color their evidence in proportion to the degree of their sympathy for or hatred of the person on trial. For this reason alone, the testimony given by the deceased witness in the trial of George Eastham was properly excluded at the trial of defendant. It is only when a witness has testified in a former trial of the same criminal case that evidence of such witness, if dead, becomes admissible. [State v. Porter, 74 Ia. 623.] The cases of State v. Able, 65 Mo. 357, and Carp v. Ins. Co., 208 Mo. l. c. 340, cited by appellant on this point, do not sustain his contention.

One Josie Street, who testified on behalf of defendant, was asked by the prosecutor if she did not cause that the defendant’s brother, George Eastham testify to a state of facts at variance with her evidence in this case. Said witness denied making the statement attributed to her; whereupon the prosecutor, over the objection of defendant, called one J. K. Langford, the magistrate who held the preliminary examination of George Eastham, and proved by him that the evidence of said Josie Street, upon the said preliminary, was in conflict with her evidence as then given in this case. The court committed no error in permitting said witness to be impeached and discredited in this manner. It is always permissible to discredit a witness in that way, if during the trial his attention is called to the time and place where the prior inconsistent statement was made; and it matters not whether such prior statement was made in court as a witness in the same or a different case, or made outside of a court at a time when the witness was not under oath.

The court submitted to the jury the issues of murder in the first and second degrees and manslaughter in the fourth degree.

The defendant complains of instructions numbered 5, 6 and 7, given by the court of its own motion, attempting to define the defendant’s right of self-defense and the right to protect or defend his brother; which instructions are as follows:

“5. The right to defend one’s self or his brother against danger not of his own seeking, is a right which the law not only concedes but guarantees to all men. The defendant may have therefore killed Charles Stacey and still be innocent of any offense against the law, if at the time he shot the deceased he had reasonable cause to apprehend on the part of the deceased, a design to do his brother some great personal injury; and there was reasonable cause for him to apprehend immediate danger of such design being accomplished, and to avert such apprehended danger he shot and at the time he did'so, he had reasonable cause to believe, and did believe it necessary for him to use his pistol in the way he did to protect his brother from such apprehended danger, then, and in that case the shooting was not felonious, but was justifiable, and you ought to acquit him on the ground of necessary self-defense. It is not necessary to this defense that the danger should have been actual or real or that the danger should have been impending and immediately about to fall. All that is necessary is that the defendant had reasonable cause to believe and did believe these facts.
“But before you acquit on the grounds of defense of his brother you ought to believe that defendant’s cause of apprehension was reasonable. Whether the facts 'constituting such reasonable cause have been established by the evidence yon are to determine, and unless the facts constituting such .reasonable cause have been established by the evidence in the cause, you cannot acquit in such case, on the ground of self-defense, even though you may believe that the defendant really thought his brother was in danger.
“But on the other hand, Gentlemen, the law does not permit a person to voluntarily seek or invite a combat, or put himself in the way of being assaulted, in order that when hard-pressed he may have a pretext to take the life of his assailant. The right of self-defense does not imply the right of attack, and it will not avail in any case where the difficulty is sought for and induced by the party by any willful act of his, o,r where he voluntarily and of his own free will, enters into it, no matter how imminent his peril may become during the progress of the affray. The necessity being of his own creation, shall not operate to excuse him, nor is anyone justified in using any more force than is necessary to get rid of his assailant, but if he does not bring on the difficulty or provoke it, nor voluntarily engage in it, he is not bound to flee to avoid it, but may resist with adequate and necessary force until he is safe.
“Now, if you believe from the evidence in this cause that the defendant’s brother, George Eastham or Willis Eastham, voluntarily sought or invited the difficulty in which said Charles Stacey lost his life or that they provoked or commenced, or brought it on by any willful act of their own, or*that they voluntarily and of their own free will, engaged in it, then, and in that case, you are not authorized to acquit bim on the grounds of self-defense or defense of his brother, and this is true no matter how violent his passion became, or how hard soever he was pressed, or how imminent his peril became during the progress of the affray. In determining who provoked or commenced the difficulty, or made the first assault, you should take into consideration all the facts and circumstances in evidence before you.
“6. And the jury is further instructed that defendant in defending a brother will not be justified in doing for him what the brother would not be justified in doing for himself. If, therefore, the jury believe from the evidence that defendant’s brother had provoked and brought on a difficulty with the deceased, Charles Stacey, and that in the progress of such difficulty said brother of defendant was placed in imminent danger and that defendant knew that his said brother had sought or provoked or brought on such difficulty, then if the jury believe from the evidence that defendant, William Eastham, shot and killed Charles Stacey while thus engaged in the controversy with defendant’s'brother, you will find him guilty.
“7. The court instructs the jury that although they may believe from the evidence that the defendant, William Eastham, shot and killed Charles Stacey, yet if it is further shown by the evidence that such shooting was done for the purpose of preventing the commission of a felony upon defendant’s brother or preventing said Stacey' from doing said defendant ’s brother some great bodily harm, they-will return a verdict of not guilty unless you further find from the evidence that defendant’s brother sought or provoked or brought on the difficulty with said Stacey, then in that case you should find the defendant guilty.”

These instructions correctly and elaborately declare the law of self-defense; but on the right of defendant to protect his brother, they miss the mark. It will readily be observed that they deprive the defendant entirely of the right to defend his brother, George, if such brother sought or provoked the difficulty in which Stacey lost his life, regardless of the intent with which said difficulty was sought or provoked.

There is no evidence on the part of either the State or defendant that George Eastham was armed; while there is direct evidence that he contemplated nothing more than an ordinary battery upon deceased until after the deceased shot Willis Eastham and began shooting at said George. Tet instruction numbered 7 tells the jury that they should convict the defendant if they find that George provoked the difficulty. It omits to inform the jury of what crime defendant is guilty in case he killed the deceased in protecting George after the latter had made a common assault on deceased without any felonious intent.

It is a well-settled rule of law in this State that the right of self-defense is not entirely destroyed by bringing on or voluntarily entering into a fight when only a common battery is intended and there is no design to take life or inflict great 'bodily harm. If after wrongfully provoking a fight intending only a common assault the aggressor is forced to slay his adversary to save his own life, he is guilty of manslaughter in the fourth degree, but not of a higher crime. [State v. Partlow, 90 Mo. 608, l. c. 616; State v. Garrett, 170 Mo. 395; State v. Darling, 202 Mo. 150.]

In this case, if George Eastham intended only an ordinary battery upon Stacey, the deceased, he would, after Stacey assaulted him with a pistol, have had the right to kill his adversary without being guilty of any greater crime than manslaughter. Defendant saw and knew all that took place between George Eastham and the deceased; consequently, under the facts in this case the right to protect his brother George after Stacey shot him, was exactly the same — no greater, no less — than the right of George to protect himself. But tlie instructions hereinbefore set out would lead the jury to .believe that they could convict the defendant of murder, regardless of the intent with which George Eastham began the assault. Under the defendant’s own evidence, he was at least gnilty of manslaughter in the fourth degree, in killing Stacey; hut the instruction on manslaughter was likewise misleading and not applicable to the evidence in the case, because it told the jury that they might convict the defendant of manslaughter, though the killing was not done in the necessary defense of his brother.

From what has been said, we do not wish to be understood as holding that the verdict of the jury finding the defendant guilty of murder is not supported by the evidence. There was strong evidence that deceased shot and mortally wounded Stacey before the latter drew his pistol or attempted to shoot anyone. The jury might well have believed that a conspiracy existed between the defendant and his brother to murder Stacey and that the apparent common assault of George -Eastham on Stacey was only a pretext to give defendant an excuse to murder the latter.

However, as there was substantial evidence that defendant’s brother George only intended a common assault and that defendant did not shoot until he saw the imminent peril of his said brother, he was entitled to have the jury instructed that if his brother George provoked the fight with deceased intending only a common assault, or intending only to grab the pistol out of the hand of deceased, and that after the fight had thus begun the deceased shot or was about to shoot George and that thereupon defendant killed deceased to save the life of his brother, then they should find defendant guilty of manslaughter in the fourth degree.

For the errors in the instructions hereinbefore designated, the judgment is reversed and the cause remanded.

Ferriss, P. Jand Kennish, J., concur.


author: FERRISS, P. J.

text:
    THE STATE v. MARTHA P. AITKEN and CHARLES AITKEN, Appellants.
    Division Two,
    February 27, 1912.
    1. EVIDENCE: Statement by Conspirator: After Consummation of Crime. A statement made by one conspirator concerning the connection of .his co-conspirator with the crime, made after its consummation, is competent as to him, and if no objection is made as to its competency as to his co-conspirator, the two being tried jointly, and no request is made that it be limited to the conspirator making it, its admission cannot be reviewed on the appeal of the co-conspirator.
    2. INSTRUCTION: Two Defendants: Punishment of Each. An instruction telling the jury ' that if they find certain facts to exist they will “find the defendants, or either of them, guilty . . . and will assess the punishment of each of them at imprisonment . . . You may find both of the defendants guilty, or you may find one of them guilty and the other not guilty, or you may find both of them not guilty,” where the jury found both guilty, and separately assessed the same punishment against each, is not misleading. It could not have been understood to tell the jury to assess a punishment against both if either were found guilty.
    3. -: Motive: Present: No Instruction: Requested by Defendant. Motive is a material consideration in a case of circumstantial evidence, but though there is uncontradicted evidence showing motive, it does not follow that the court is compelled to instruct on motive. If no instruction on motive is given for the State, it is not reversible error to refuse defendant’s instruction on the subject.
    Appeal from Jefferson Circuit Court.- — Ho». E. M. Dearing, Judge.
    Affirmed.

      John T, Fitzsimmons for appellants.
    (1) The evidence wholly fails to connect the defendants with the act of abortion, if any were committed, .resulting in the death of Lilby Anna Aitken. There is an entire absence of those facts which, in cases of this hind, usually establish by circumstantial evidence the guilt of the accused.- On the contrary, the State’s ease abounds in facts which circumstan-' tially point to the innocence and the consciousness of innocence of the defendants. In the light of all past cases wherein the' court has passed on the question of the sufficiency of the circumstantial evidence to sustain the verdict, the Supreme Court should grant relief to these defendants. Even those cases wherein the point was ruled against the defendants would alone be sufficient authorities in behalf of the defendants in this case. The fact that there are two defendants jointly convicted makes the circumstances against them much weaker in probative value. State v. Burgdorf, 53 Mo. 67; State v. Mansfield, 41 Mo. 470; State v. Jaeger, 66 Mo. 173; State v. Castor, 93 Mo. 253; State v. Primm, 98 Mo. 368; State v. Packwood, 26- Mo. 340; State v. Daubert, 42 Mo. 239; State v. Brosius, 39 Mo. 534; State v. Musick, 71 Mo. 401; State v. Warner, 74 Mo. 83; State v. Hammond, 77 Mo. 159; State v. Lowe, 93 Mo. 574; State-v. McNamara, 100 Mo. 100; State v. Edmondson, 131 Mo, 348; State v. Einley, 193 Mo. 202; State v. Gow, 235 Mo. 307; State v. Faulkner, 175 Mo. 546. State v. Scott, 177 Mo. 665; State v. Heusack, 189 Mo. 295; State v. Francis, 199 Mo. 694; State v. Morney, 196 Mo. 43; Comer v. Railroad, 181 Mo. 397; State v. Casto, 231 Mo. 398. There is no evidence, direct or circumstantial, indicating that the defendants or either of them had in their possession or used upon Lilby Anna Aitken “any instrument or hard substance,” as predicated in the main instruction. Instructions must be based upon evidence and not upon mere conjecture. Marr v. Bunker, 92 Mo. 651; McAtee v. Valandingham, 75 Mo. App. 45;-Moore v. Streigel, 50 Mo. App. 308; Holden v. Railroad, 177 Mo. 456; State v. Bonner, 178 Mo. 424; State v. Hicks, 178 Mo. 433; Kennedy v. Railroad, 128 Mo. App. 297; Felver v. Railroad, 216 Mo. 210. (3) The instruction given by the court pn circumstantial evidence is an abstract statement of the law as far as it goes. Instructions of this kind are always dangerous unless full and complete in their statement of the law. The court erred more particularly in giving its instruction on circumstantial evidence because it omitted reference to the absence of motive for the crime charged for which the defendants asked -by their refused instruction on circumstantial evidence. State v. Bauerle, 145 Mo. 1; State v. Foley, 144 Mo. 600-; State v. Faulkner, 175 Mo. 546; State’v. Scott, 177 Mo. 665; Comer v. Railroad, 181 Mo. 397; State v. Heusack, 189 Mo. 295; State v. Francis, 199 Mo. 694; State v. Morney, 196 Mo. 43. '

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    (1) The instructions, numbered 1. 2, 3. and 4, given on the part of the State, are full, fair and clearly present the law of the case to the jury. The court very properly refused instruction number 1, requested by appellants, as State instruction number 2 covered the same phase of the case. State v. Brooks, 220 Mo. 74. (2) Appellants assign error in their motion for a new trial in that the court failed to instruct on all the law of the case. Appellants failed to object and save an exception to the failure of the court to instruct on all the law of the case, and, therefore, that question is not before this court for review. State v. Tucker, 232 Mo. 15. (3) There was an abundance of substantial evidence to support the verdict of'guilty as returned by the jury in this cause. The court, very properly overruled appellants’ demurrer offered at the close of the State’s testimony. State v. Scott, 214 Mo. 261; State v. Espenschied, 212 Mo. 223. (4) State’s instruction number 1 is a substantial copy of the instruction as approved in State v. Fitzporter, 93 Mo. 393, and makes plain to the jury that they might convict or acquit either or both the appellants as they thought justified under the evidence. In said instruction this language is used: “You will find the defendants, or either of them, guilty of manslaughter in the 'second degree.” That part of the instruction which reads “and will assess the punishment of each of them at imprisonment in the penitentiary for a term of not less than three nor more than five years,” could only have led the jury to believe that they were to assess such punishment against each defendant, in case the jury found each defendant guilty. Any other construction placed upon said section would be an unreasonable construction, and entirely ignoring that part of the instruction above quoted, which plainly told the jury that they might convict one of the defendants and acquit the other, or convict both, or acquit both, as they saw fit. The jury returned separate verdicts in this cause, thereby disclosing that they considered the guilt of each appellant separately.
   FERRISS, P. J.

Appeal of defendants, convicted in the circuit court of Jefferson county of manslaughter by producing an abortion upon lilby Anna Aitken, wife of defendant Charles Aitken, and sentenced to three years in the penitentiary.

The testimony for the State tended to prove the following facts:

Lilby Anna Blake was eighteen years old on April 18, 1911, and married Charles Aitken, defendant, on May 7, 1911. The Blake and Aitken families lived in the town of DeSoto, and for about one month prior to her said marriage Lilby Anna Blake had been living at the house of defendant Martha P. Aitken and her son, Charles. After the marriage, Charles Aitken and his wife lived with Mrs. Blake, mother of deceased. Soon after the marriage deceased told her mother, sister and some neighbor friends that she was then pregnant, and bad been so for about two weeks prior to ber marriage.

On Monday, prior to Sunday, June 25, 1911, tbe date of Mrs. Aitken’s death, defendant Charles Aitken left tbe Blake home, early in tbe morning. Some time during that morning be met a sister of deceased on tbe streets in DeSoto, and sent word by ber to his wife to come up to bis mother’s bouse, which she did that afternoon. This departure by Aitken and bis wife appears to have been without any prearrangement. Tbe wife took none of ber belongings from ber mother’s bouse. A few days before their leaving Mrs. Blake’s, defendant Aitken brought bis wife some “tansy tea” which had been prepared and sent by bis mother for the purpose, as she afterwards claimed, of relieving a menstrual trouble from which, she said, deceased was reported by tbe husband to be suffering. He also took some medicine in a bottle to bis wife at about tbe same time. From tbe time of tbe departure of Aitken and bis wife, on Monday, neither Mrs. Blake nor any of her family beard anything from ber daughter until the following Sunday afternoon, at about two o’clock, when Aitken came to Mrs. Blake’s, and said: “You had better come and see ber. She is awful bad. She is in bed, and is awful bad.” When Mrs. Blake reached tbe Aitken home she found ber daughter in a rear room, the doors and windows of which were closed. She was then unconscious, and died within an hour. Defendant Mrs. Aitken told Mrs. Blake that she bad given deceased some tansy tea, some ginger tea and a morphine tablet during tbe night. Mrs. Blake noticed some blood spots on tbe bed where deceased was lying.

On Sunday morning, at about one o’clock, Dr. Donnell, a practicing physician, was called by the bus-band to see deceased. The doctor found ber with a pulse' of 114, with a subnormal temperature, unconscions, and in a collapsed condition, with death upon her. Defendants told Dr. Donnell that she had been sick for several days, and had been unconscious since eight o’clock Saturday night. On this phase of the case Dr. Donnell testified as follows:

“I remarked that she seemed to be rather stupid, and Mrs. Aitken said, ‘I gave her an eighth of a grain of morphine this evening, ’ and I asked her when, and she said, about eight o’clock, and I said, ‘What for?’ and she says, ‘She was always suffering a great deal of pain with her monthly period.’ She says, ‘She came up here last month, or Charley came up, and talked to me about it, and says, “Mother, for G-od’s sake, do something for Anna, as she is having such pain.” And I didn’t know what to do, and I made him a bucket of tansy tea and sent it down to her, and she got up and came up here on Tuesday, and was feeling bad, and so we gave her some tansy tea and some ginger tea, and, in fact, I did everything that I knew to relieve her. ’ And I asked her if any flow had come on, and she said, ‘No, none at all.’ And I proceeded to examine her, and reached down and felt of her abdomen, and it was very sore to the touch, and she would cry out at the very touch of my hand; and I noticed when I first pulled the sheet down that there was some blood on it, and, from all the appearances of her abdomen, she had peritonitis, which is an inflammation of the lining of the abdominal cavity and covering of the bowels. Mrs. Aitken says: ‘I have been using hot applications over the stomach, as I thought it was some ovarian trouble.’ She said she expected there was some ovarian trouble there; and I turned the sheet back, and noticed several smears of blood where she was lying on .the sheet.”

Mrs. Highfield, a near neighbor of the defendants, and who went to the Aitken home a few minutes after the death of the deceased, testified as follows:

“After I got there, I went in and looked at her; and that was about all I could do. We went up there, and I says to Mrs. Aitken: ‘Was there anything the matter with the girl?’ and she says, ‘No.’ I says to Mrs. Aitken: ‘Was she pregnant with a child?’ and Mrs. Aitken says, ‘0, no; she wasn’t that way; nothing like that wrong with her.’ Mrs. Aitken said she was having some trouble with her monthlies, and that she had given her some tansy tea, and that Charley had given her some ginger tea, and she had given her a tablet. And when I got there and saw her, she looked purple all over. I looked at her myself, and I spoke to some of the others about it.”

This witness further testified that she observed blood spots on the bed, and that the folded pad under deceased was quite bloody; that Mrs. Aitken again made the statement that deceased had been sick since she came there, on Monday, and that she did not become dangerously ill until Saturday night prior to her death.

Deceased was buried on Thursday following the date of her death, and her body was exhumed on July 10th, and an autopsy held on July 11th. The autopsy was conducted by Doctors Hensly, Donnell and Stegman, all of whom testified that they found all of the organs normal except the womb, which was about five and a half inches in length, and in a soft, flabby condition; that the womb contained about an ounce of thick blood, and that the neck thereof was torn, as though there had been some hard substance pushed through. The neck of the womb was also raw from-effect of the passing in of some hard substance. ■ In the top of the womb were found three holes which had been formed by some sort of an instrument about the size of an ordinary lead pencil. All three physicians testified that, in their opinion, deceased was pregnant some eight or nine weeks prior to her death, and that she died of peritonitis caused by the holes punched into her womb, and the abortion resulting therefrom.

John Albers testified that on the day on which the autopsy was held he said to defendant Charles Aitken: ‘ ‘ Charlie, this is a pretty tough case; ” to which Aitken replied: “I don’t know. It looks like it couldn’t hurt me as I know of; and if they can do anything at all, they might stick mother.”

The proof also discloses that “tansy tea” will produce an abortion, and that it is used for that purpose as well as to promote menstruation. It further appears that during the week, from Monday until Sunday noon, none of the neighbors saw deceased at the Aitken home.

There was some testimony from near neighbors that moans were heard, apparently from the Aitken home, on Sunday morning,, and that at the same time a graphophone was playing from the same house.

The defendant, Martha Aitken, is a midwife of long practice. Defendant Charles Aitken was heard to say, both before and after his marriage, that his wife should never have any children. The testimony is that deceased was in perfect health up to the time she went to the Aitken home, on Monday preceding her death, except that she was pregnant, and suffered the ills incident to that condition. No physician was called until the morning of the day she died, and when she was past human aid.

Defendant Charles Aitken testified that he did not make the statement attributed to him by John Albers. Further than this he did not testify; nor did his co-defendant take the stand.

I. It is earnestly urged that the peremptory instruction should have been given at the close of the testimony, and that there is no substantial evidence to support the verdict.

After careful consideration of the evidence, we think that, although purely- circumstantial, the evidence is sufficient to take the case to the jury. The deceased was pregnant. An abortion was committed. No one had access to her except the defendants. Therefore, it is reasonable to conclude that the abortion was the act of the defendants, or of one of them, or that it was the act of deceased. It was possible for deceased to have produced this abortion by using, herself, some hard substance to puncture the womb; but the probabilities are that she did not do it. • The defendants are mother and son, and naturally working in sympathy. Motive appears in the remarks of the husband that his wife should have no children, and in the fact that she was pregnant prior to her marriage. The acts of the defendants, as testified to, are inconsistent with innocence. The giving of the medicines adapted to produce miscarriage; the sudden call to the deceased to go to the Aitken house; the concealment by defendants of her illness until death was impending, although they claimed that she had been sick the entire week; the failure to call a physician until death was at hand; the denial by the woman that the girl was pregnant, and the assertion that she was suffering from imperfect menstruation, when she must have known that the facts were otherwise, are things which do not comport with innocence. Furthermore, the condition of the womb negatives the idea that the girl herself inflicted the injury. She might have made the punctures which were found, but it would seem impossible for her to have produced by herself the injuries found at the neck of the womb, which both doctors say had been found open and torn by the passage of some hard substance.

We are asked to reject the statement which defendant Charles Aitken made, to the effect that it might go hard with his mother, on the ground that she would not he bound by any statement by a co-eonspirator after the consummation of the conspiracy. The statement was competent as to defendant Charles Aitken. No objection was made on behalf of Mrs. Aitken, nor any instruction asked limiting this statement as evidence against Charles only. Therefore, we cannot review the matter. - This is a court of errors.. No error was committed by the trial court in this regard.

II. Instruction numbered 1 given by the court is as follows:

‘ ‘ The court instructs the jury that the defendants, by the information in this case, stand charged with manslaughter in the second degree, and in this connection you are instructed that if you believe and find from the evidence that the defendants, Martha P. Aitken and Charles Aitken, or either of them, at the county of Jefferson, in the State of Missouri, at any time within three years next prior to the 26th day of August, 1911, in and upon the body of one Lilby Annie Aitken, a woman then and there being pregnant with a child, did then and there, unlawfully, wilfully and feloniously, make an assault, and that defendants, or either of them, did then and there, unlawfully, wilfully and feloniously, use and employ in and upon the body and womb of the said Lilby Annie Aitken any instrument or hard substance, and that the defendants, or either of them, did then and there, unlawfully, wilfully and feloniously, insert, thrust and force said instrument or hard substance into the private parts and womb of the said Lilby Annie Aitken, and did thereby then and there greatly wound the said Lilby Annie Aitken in and upon the body and womb of her, said Lilby Annie Aitken, with the felonious intent thereby, then and there, to procure, produce and promote a miscarriage o.r abortion of the then existing pregnancy ' of her, the said Lilby Annie Aitken, and that the same was not, then and there, necessary to preserve the life of sai-d pregnant woman, Lilby Annie Aitken, or that the same, namely, the nse and employment of the instrument or hard substance as aforesaid, was not advised by a duly licensed physician to be necessary to preserve the life of said pregnant woman, Lilby Annie Aitken; and if the jury further believe and find from the evidence that, by the means, and in consequence of the unlawful, willful and felonious use and employment of said instrument o.r hard substance as aforesaid, in and upon the body and womb of the said Lilby Annie Aitken, by the defendants, or either of them, as aforesaid, with the felonious intent to destroy the foetus and child in the womb of the said Lilby Annie Aitken, then and there being, and thereby procure, produce and promote a miscarriage -or abortion of the then existing pregnancy of her, the said Lilby Annie Aitken, she, the said Lilby Annie Aitken, then and there became mortally wounded and diseased of her womb and body, of which mortal wound and disease she, the said Lilby Annie Aitken, subsequently, on the 25th day of June, 1911, at the county of Jefferson, in the State of Missouri, did die, you will find the defendants, or either of them, guilty of manslaughter in the second degree, as charged in the information, and will assess the punishment of each of them at imprisonment in the penitentiary for a term of not less than three years nor more than five years.
“The words ‘felonious’ and ‘feloniously’ as used in these instructions mean wickedly and against the admonition of the law.
“The word '‘willfully’ as used in these instructions means intentionally, not accidentally.
“You are further instructed that you may find both of the defendants guilty, or you may find one of them guilty and the other not guilty, or you may find both of them not guilty.”

It is urged with force and ability that this instruction is erroneous in that it tells the jury to assess the punishment of each of the defendants in case either is found guilty. Here is the verdict of the jury:

“We, the jury, in the case of State of Missouri against Martha P. Aitken and Charles Aitken, find the defendants, Martha P. Aitken and Charley Aitken, guilty of manslaughter in the second degree,' as charged in the information, and we assess the punishment of the defendant, Martha P. Aitken, at imprisonment in the penitentiary for a term of three years; and we assess the punishment of the defendant, Charles Aitken, at imprisonment in the penitentiary for a term of three years.”.

Inasmuch as both defendants were found guilty, no error can be predicated upon words in the instruction which only refer to a situation where only one is found guilty. That portion of the instruction complained of need not have been considered by the jury at all, in view of their finding that both were guilty. Aside from this the instruction was not misleading. We must read it all, and we must impute some fair degree of intelligence to the jury. The last paragraph tells the jury that they may find one guilty and acquit the other. If the jury should find only one guilty, can it be supposed for a moment that they would understand from this instruction that they were to also punish the one whom they should find not guilty? We apprehend that any sensible man would understand from this instruction that the expression, “assess the punishment of each, ” is to be applied to the one who is found guilty, if only one is guilty, and to each if both are guilty.

It may also be suggested-, although the point is not touched upon on either side-, that this instruction, according to its strict terms, permitted the jury to find both guilty, although they might believe that only one actually committed the crime. We apprehend that a jury would take a common sense view of the instruction, and render a verdict as they found the facts. It would never occur to them to think that the court intended that. they should find both guilty when they were satisfied that only one committed the crime.

The evidence showed both defendants as participants and equal in guilt, if either was guilty. The jury so found by express terms in their verdict. We are satisfied that the instruction, though faulty in construction, did not mislead the jury, and that its submission was not reversible error.

III. The court instructed on circumstantial evidence as follows:

“2. The jury are further instructed that it is not necessary to prove the guilt of defendants by the testimony of witnesses who may have seen the offense committed, if you find an offense has been committed, but their guilt may be shown by proof of facts and circumstances from which it may be reasonably and satisfactorily inferred.
‘ ‘ Evidence is of two kinds, direct and circumstantial. Direct evidence is when a witness testifies directly of his own knowledge of a main fact or facts to be proven. Circumstantial evidence is proof of certain facts and circumstances in a certain casé from which the jury may infer other and connected facts which usually and reasonably follow, according to the common experience of mankind. Crime may be proven by circumstantial evidence as well as by direct testimony of eye witnesses. But the facts and circumstances in evidence should be consistent with each other and with the guilt of defendants, and inconsistent with any reasonable theory of the defendants’ innocence.”

The defendants requested the following instruction, which was refused:

“You are further instructed that it is not necessary to prove defendants guilty by the testimony of witnesses who may have seen the offense committed. Guilt may be shown by proof of facts and circumstances from which it may be reasonably and satisfactorily inferred. In determining whether the defendants are guilty or not, you should take into consideration all the facts and circumstances in evidence, the acts and conduct of the defendants, and their motive, if any, for doing or not doing the acts charged as shown by the evidence, and if you find from all the facts and circumstances in evidence that there is no other reasonable conclusion than that they are guilty, you will so find, but to convict the defendants on circumstantial evidence alone, the circumstances proven must be consistent with their guilt and with each, other, and must, taken together, point so conclusively to their guilt as to exclude every reasonable hypothesis of their innocence.”

It will be perceived that the only substantial difference is the clause in defendants’ instruction referring to motive. Motive is a material consideration in a case of circumstantial evidence, and is a proper matter for argument before the jury. Its absence does not prove innocence; nor does the mere fact that it exists establish guilt. Motive is a circumstance for or .against the defendant as the jury may find that it does not or does exist; and is to be weighed together with all other facts and circumstances in evidence. It does not follow from the fact that a circumstance is material that a jury must be instructed especially upon that circumstance. Nor does it follow that failure to instruct is error because it would not be error to instruct on the point.

We held in State v. David, 131 Mo. 380, that it was not error to instruct that if the jury believed defendant guilty they should so find, whether any motive was apparent or not. In that case we also held proper the instruction given on behalf of defendant that the failure to show motive was a circumstance favorable to defendant.

In State v. Foley, 144 Mo. 600, where the court gave an instruction similar to the one given for the State in the David case, we held it error to refuse the one requested by the defendant giving him the benefit of absence of motive. We held this on the theory that, the court having charged on the subject of motive from the standpoint of the State, it was unfair not to present to the jury the converse of the proposition. We held to the same effect in State v. Harris, 232 Mo. 317. But we have not held it to be error to fail to instruct at all on the question of motive.

In the case before us the court did not instruct on motive. 0 It might have done so, and, if it had, then defendants’ instruction, although inartificial, amounted to a request, and would have imposed upon the court the duty to frame a proper one on this point. It was not error to fail to instruct on motive, which is but one of all the circumstances to be considered by the jury, and does not require a special instruction.

In this case there was uncontradicted evidence showing motive. An instruction calling special attention to the subject could not have benefited the defendants, and for this reason also they ought not to complain. We hold that, under the circumstances of this case, the refusal to give the instruction requested by defendants was not error.

Finding no reversible error, we affirm the judgment.

Kennish and Brown, JJ., concur.


author: BLAIR, C.

text:
    THE STATE v. FRANK McCONNELL, Appellant.
    Division Two,
    February 27, 1912.
    1. INFORMATION: Fraudulent Conveyance: Name of Person Defrauded not Necessary. It is not necessary to name, in an information charging the making of a second and fraudulent conveyance of the same real estate, the particular person whom defendant intended to defraud.
    2. -: -: Charging Failure to Recite First Deed in the Second. In an information charging the making of a second and fraudulent conveyance of the same real estate, a clause is sufficient which alleges that defendant “did . . . fail ... to recite in such second deed the first deed and the substance thereof.” It charges plainly enough the omission to recite in the second deed either the whole of the first deed or its substance, the inclusion of either of which would have exonerated the defendant.
    S. -: -: Repugnant Clause: Rejected as Surplusage. The information charged that the defendant first conveyed the land to Pope as trustee for Hale and W. McConnell, and then fraudulently conveyed it a second time by deed to Lundy Carstin, a different person from Pope, Hale and W. McConnell. Then it alleged that defendant failed “to recite in such second deed, the first deed and the iubstance thereof, made to Lundy Carstin, as aforesaid,” etc. The only objection made to the information in the trial court which could be construed as aimed at this defect was that it did not “charge any offense under the laws of the State of Missouri.” Held, that the information, while awkward in expression, is sufficient against such attack. The words “made to Lundy Carstin, as aforesaid,” may he rejected as surplusage.
    4. FRAUDULENT CONVEYANCE: Facts Assumed in Instructions Admitted by Defendant. The defendant in a prosecution for a second and fraudulent conveyance of the same land having admitted on the stand the execution of both deeds, there was no error in assuming in the instructions their execution by him.
    5. -: -: Recital of First Deed in the Second. In a prosecution for a second and fraudulent conveyance of the same land, the second deed was in evidence and showed no recital of the first deed or its substance. The defendant in his'testimony admitted executing the deeds, and his testimony contains other statements inexplicable save as ■ admissions of the omission in the second deed of any reference to the first. Held, that the trial court committed no error in assuming the omission in its instructions.

      6. APPEAL: Substantial Evidence of Defendant’s Guilt: Evidence not Reviewed. Where there was substantial evidence of defendant’s guilt it is not the province of the Suprej^M|a,urt to weigh conflicting evidence.
    Appeal from Christian Circuit Court. — Hon. John T. Moore, Judge.
    Affirmed.

      Hays db Hays for appellant.

      Elliott W. Major, Attorney-General, and Campbell Cummings, Assistant Attorney-General, for the State.
   BLAIR, C.

Defendant was convicted in the circuit court of Christian county of fraudulently conveying certain real estate without reciting in the deed the whole or the substance of a prior trust deed executed by him, which covered the same property. Having been duly sentenced to serve two years in the penitentiary, he appealed.

The evidence disclosed that defendant executed • to Pope, as trustee for Hale and McConnell, a deed of trust on the property described in the information at a time when he had only color of title thereto; that subsequently he acquired the legal title and thereafter conveyed the land to one Carstin by a warranty deed in which appears no reference to the trust deed mentioned. There was evidence that defendant assured Carstin the land was unincumbered save by mortgage securing the purchase money to those from whom he acquired the actual title. Carstin testified that he knew nothing of the deed of trust to Pope.

The evidence for the defense was to the effect that Carstin knew all about the deed of trust and that both he and defendant were under the impression that it was invalid by reason of having been executed at a time when defendant had no title.

Defendant testified in Ms own behalf. He admitted the execution of both the deed of trust to Pope and the warranty deed to Carstin, and testified that the latter told him before purchasing the land that he had been advised the deed of trust was void. Some evidence was offered in rebuttal to the effect that defendant’s reputation for truth and veracity was bad.

I. The information in this case, after sufficiently charging that defendant in March, 1909, conveyed certain described land to Pope as trustee for Hale and McConnell to secure one hundred and fifty dollars, continues:

“That afterwards, to-wit, on the 1st day of October, 1909, he the said Prank McConnell, at the county aforesaid, while the deed aforesaid was outstanding and in force, unlawfully and feloniously with intent to cheat and defraud, did then and there, the same land as aforesaid, by a good and sufficient deed, properly acknowledged and executed and delivered, convey unto one Lundy Carstin for a consideration of six hundred dollars, the same land as previously granted; he the said Lundy Carstin being another and different person from said E. J. Pope, William Hale or W. A. McConnell, and he, the said Frank McConnell did then and there unlawfully, feloniously and knowingly, with intent to cheat and defraud as aforesaid, purposely and designedly, fail, refuse and omit to recite in such second deed, the first deed and the substance thereof, made to Lundy Carstin, as aforesaid, against,” etc.

The failure to name in the information the particular person whom defendant intended to defraud calls for no comment save that the general allegation made is specifically authorized by section 4921, Eevised Statutes 1909.

The clause alleging that defendant “did, etc., fail, refuse and omit to recite in such second deed the first deed and the substance thereof” charges plainly enough, the omission from the second deed of both the recitation of the whole of the first deed and the recitation of its. substance, the inclusion of either of which would have exonerated defendant.

The employment of separate clauses in negativing the recitation of the whole and the recitation of the substance of the first in the second deed might have made it more clear that it was not to be implied that in any event both the whole and the substance of the first deed ought to have been recited or set out in the second; but the language used is entirely sufficient and in this respect also the information is upheld.

A more serious question is presented by the use, in .the concluding part of the last sentence of the information, of the words “made to Lundy Carstin as aforesaid.”

Carstin was the grantee in the second deed and not in the first deed, and, without doubt, the words mentioned have no place in the clause in which they are used. The necessity of charging that neither the first deed nor its substance was recited in the second deed cannot be denied. Such a charge is essential to the validity of the information. Does the use of the words quoted so affect the sentence and the sense that the charge becomes merely that the deed to Carstin was not recited in itself, and thereby invalidate the information ?

“No indictment or information shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected . . . for any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged . . . nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits; Provided, that nothing herein shall be so construed as to render valid any indictment which does not fully inform the defendant of the offense of which he stands charged.” [Section 5115, Revised Statutes 1909.]

This court has had occasion to apply this statute. In the case of State v. Craighead, 32 Mo. 561, a prosecution under the section corresponding to section 4483, Revised Statutes 1909, the indictment, after properly charging Craighead assaulted and wounded Dunlop, concluded: “By means of which said wounding and assaulting of said Dunlop by the said Craighead then and there, the life of him the said Craighead, was then and there endangered,” etc.

This court said, concerning this indictment: “The error consists in substituting the name of Craighead for Dunlop. It is apparent enough that this was a mere clerical error, resulting from the inadvertency of the circuit attorney, and in no sense tended to the prejudice of the substantial rights of the defendant upon the merits.”

In the case of State v. Chamberlain, 89 Mo. 129, the indictment was for forgery and charged that defendant knowingly uttered certain “false, forged and counterfeit promissory notes ... of the purport following; to-wit: A note of one hundred dollars purporting to be made by Thomas Montgomery, which said false, forged and counterfeit promissory note is of the purport following: Note of one hundred dollars, exemted and signed by Thomas Montgomery, dated, ’ ’ etc.

After quoting the statute the court said: “With such a broad statute in view, this indictment here, though lamentably repugnant, must be held as valid to all intents and purposes as though drawn by the most skilful hand.”

In the case of State v. Fleming, 90 Mo. App. 241, a prosecution for wife abandonment, the information, after charging that defendant abandoned “his lawful wife, Kate Fleming,” proceeded: “The said David C. Fleming being then and there, and on said other days and times, lawfully married to and with this affiant,” ete. The St. Louis Court of Appeals, speaking through Judge Goode, said that the words “this affiant” might, in view of the statute, be stricken from the information.

In State v. Feitz, 154 Mo. App. l. c. 581, in an indictment for obstructing a road, in which it was necessary to allege the adoption of the township organization law, there appeared, among others, the following allegations: “That on the 6th day of November, 1908, . . . the township organization law was duly adopted in said county of Chariton . . . that afterwards, to-Vit, on or about the 22d day of January, 1908, when said law was in full force and effect in said county, ’ ’ etc.

The error was held to be clerical, and, in view of the allegation that the offense was committed while the law was in force, in no way prejudicial.

Decisions in other jurisdictions are of like import.

In Godard v. State, 139 S. W. (Ark.) 1131, it was held that in an indictment for forgery, containing two counts, a discrepancy between allegations as to dates on the instrument alleged to have been forged would be disregarded as a clerical error and repugnancy between the counts thus avoided.

In Commonwealth v. Wright, 166 Mass. l. c. 181, it was said that meaningless words may be rejected.

In People v. Duford, 66 Mich. 90, the information charged that “. . . Abram Duford, .. . . heretofore, to-wit, on the 12th day of December in the year 1886, in the nighttime of said day, at . . School-craft county, the inhabited dwelling-house of one Ardellia Pitcher there situate ions willfully, maliciously and feloniously set fire to, with intent, ’ ’ etc. The court said: “This mistake, we think, should be regarded as clerical and formal, and one which did not mislead or result to the respondent’s prejudice.”

In the case of United States v. Jackson, 2 Fed. 502, the question was whether, in a prosecution of a bankrupt for concealment of goods, the indictment sufficiently alleged that the goods charged to have been concealed were the bankrupt’s property on the day on which the proceedings were begun. It was not clearly and affirmatively alleged that the bankrupt owned any goods on that day. The court, after quoting the statute to the effect that defects in matters of form not tending to prejudice the defendant were to be disregarded, said:

“It is somewhat difficult to say what is form, and what is substance, in an indictment. A nice critic might insist that form is substance in criminal pleading, but the statute is intended to have some operation, and I have been disposed to give it a liberal construction. I have held that a particular intent, which made an act a crime by the words of a statute, is part of the substance. On the other hand, mere mistakes, however serious, in expressing the substance of a crime, if the meaning can be understood, I look upon as formal.
“By this rule I hold that the allegations of time in this indictment, one of which is repugnant to the other, amounts to a formal defect or imperfection; it being set out informally but with no danger of mistake, that the defendant is accused of willfully and fraudulently concealing from his assignee property which he should have given up to him for the use of the creditors.”

In Rex v. Stevens, 5 East, l. c. 254, 255, it was said by Lord Ellenborotjgh, in discussing an objection to an information on the ground of repugnancy: “I do not find any authority in the law which • warrants us in rejecting any material allegation in an indictment or information which is sensible and consistent in the place where it occurs, and is not repugnant to any antecedent matter, merely on account of there occurring afterwards, in the same indictment or information, another allegation inconsistent with the former, and which latter allegation cannot itself he rejected as it is clear that the allegation of the 29th of November, 1795, . . . could not, . . . without leaving the information wholly destitute of the necessary allegation of a particular day on which the offense was committed. If the subsequent repugnant matter could be rejected at all (which in this case it cannot for the reason before given), it might be so in favor of the precedent matter, according to what is said by Lord Holt in Wyatt v. Aland, 1 Salk. 325, ‘That where matter is nonsense by being contradictory and repugnant to somewhat precedent, there the precedent matter, which is sense, shall not be defeated by the repugnancy which fallows; but that which is contradictory shall be rejected.’ ”

In State v. Flint, 62 Mo. l. c. 399, this court announced that: “Where the contradictory or repugnant expressions do not enter into the substance of the offense, and the indictment will be good without them, they may be rejected as surplusage; or, where the repugnant matter is simply inconsistent with any preceding averment, it may also be rejected as superfluous.”

In view of the statute and the liberal construction which has rightly been given it, as well as the general rule evidenced by decisions from other jurisdictions, the information in this case should not be held invalid by reason of the insertion in the last sentence of the words “made to Lundy Carstin as aforesaid.” The error is palpable and could not have misled defendant —did not, in fact, mislead him.

It had already been positively alleged that the first deed was made to Pope and that Pope was “another and different person from” Carstin, and as positively alleged that the second, not the first, deed was “made to Lundy Carstin.” To no previous allegation can the clause “made to Lundy Carstin as aforesaid” possibly refer except that with reference to the execution of the second deed, without coming into direct conflict with the sense of all the precedent matter.

The only objection made to the information in the trial court which .could be construed as aimed at this defect was the entirely general one that “the information does not charge any offense under the laws of the State of Missouri.” Against such attack this information, while inartificial and awkward in expression, will be held sufficient. [People v. Duford, supra.] The clause quoted, if all its words are given effect, cannot refer to the first deed since the words “as aforesaid” plainly limit the effect of the whole clause to such extent that it necessarily must be descriptive of some deed previously alleged to have been “made to Lundy Carstin.” This is the natural effect of the words “as aforesaid.” We know of no rule which would require us to reject these words in order that those which remained might destroy this information. If the six words quoted be stricken out, as they may be, there is left a sufficient charge of the omission of the recital required by the statute. -

We are not unmindful of the rule that an allegation in an information which discloses that no crime has been committed cannot be rejected as surplusage (State v. Leonard, 171 Mo. l. c. 627), nor have we overlooked the general rule that allegations, though unnecessary, if descriptive of the identity of what is legally essential to the charge, must be proved as laid. We hold defendant was not prejudiced by the errors and informalities in the information in this case.

II. In the instructions the trial court assumed the execution of the deed of trust and of the deed to Cars-tin. The defendant having on the witness stand in open court in this case unequivocally admitted the execution of both, there was no error in assuming in the instructions their execution by him.

Nor was there any controversy on the question of the failure to recite the trust deed or its substance in the deed to Carstin. The deed was in evidence and shows no such recital and defendant in his testimony admitted executing the deed. His testimony contains other statements not rationally explicable save as admissions of the same omission. The trial court committed no error in assuming this fact also in its instructions. [State v. Edwards, 71 Mo. l. c. 322; State v. Crab, 121 Mo. l. c. 564; State v. Holloway, 156 Mo. l. c. 230, 231; State v. Miller, 190 Mo. l. c. 461; State v. McBroom, 238 Mo. 495.]

There was substantial evidence of defendant’s guilt and it is not our province to weigh conflicting evidence.

The judgment is affirmed.

Roy, C., concurs.

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

All the judges concur.