text:
    THE STATE v. WILLIAM H. BELL, Appellant.
    (No. 1.)
    Division Two,
    May 19, 1908.
    1. FORCED TO TRIAL. 'Where defendant made no application for a continuance, although given the opportunity to do so, there is no merit in his claim that he was forced to go to trial without his witnesses.
    2. WIFE AS WITNESS: Cross-Examination: No Objection. Where no objection was made to questions propounded to defendant’s wife on cross-examination, it will be too late to object on appeal that inquiries were made of her about hurtful matters concerning which she was not examined in chief.
    3. -: -: Letters. Interrogatories on cross-examination of a wife, placed upon the stand as a witness for her husband, the defendant, concerning letters which passed between them, are prohibited by the statute which forbids either husband or wife to disclose confidential communications; and if permitted, over -defendant’s exceptions, are error.
    4. -: -: Forgery: Express Money Order. Where defendant was indicted for forging and uttering a forged express money order, and there was evidence that nine other blank express money orders had been purloined from the office at about the same time and that defendant had uttered three of them, inquiries of his wife if she had seen any express money orders in his possession, and her answers over objections .that she had, were very material evidence, and error.
    5. -: -: Conference With Counsel. It is error to permit the State to require defendant’s wife to detail conferences and conversations she had had with defendant’s counsel prior to the trial.
    6. FORGERY: Evidence: Other Crimes. Testimony that a day or two before defendant uttered the express money order charged to be forged, the express office by which the order purports to have been issued was burglarized and ten express money orders, one of which bore the same number as the forged one, were stolen therefrom, is competent. If the commission or attempt to commit another crime tends to establish the commission of the crime in question, or is in fact one of its constituent elements, testimony concerning it is competent.
    7. -: -: Express Order: Authorized to Do Business. Where defendant is charged with having forged an express money order, the order is not inadmissible as evidence because it has not been shown that the company was authorized to do business in this State.
    8. HYPOTHETICAL QUESTION: Covering All Testimony. It is error to refuse to permit an expert to answer a hypothetical question on the ground that it does not cover all the testimony in the case.
    9. -: Expert: Qualification. Where a physician expressly declines to testify as an expert on insanity, and the only evidence tending to show that he is an expert on the subject is that he has had twenty-five years’ practice, without any showing that he ever had any occasion to treat patients for insanity or any experience in that particular branch of his profession, he is not an expert, and the court should exclude his answers referring to defendant’s insanity.
    10. EXPERT: Compelled to Testify Without Extra Fee. It is error for the trial court to sustain an expert in his refusal to answer a question on behalf of defendant concerning matters specially within his knowledge until he has first been compensated for his opinion. A witness called to testify as an expert, whether a physician or an expert in any other branch of knowledge, can be compelled to state his opinion in answer to a hypothetical or other question involving his professional knowledge, without further compensation than that allowed by law to other witnesses.
    11. FORGERY: Sufficiency of Evidence: Possession of Forged' Instruments. Possession of the forged instruments and the utterance of them soon after they were forged are cognate evidence that the defendant was the forger. So that where the evidence tends to show that a day or two prior to the uttering in Kansas City by defendant of three forged express money orders for fifty dollars each, to which a fictitious agent’s name had been signed, the express office at Warsaw, by which they purported to have been issued, was burglarized, and ten blank money orders, three of them bearing the same numbers as those uttered by defendant, were stolen therefrom; that the office was burglarized on the night after defendant had purchased another order from the real agerit for five dollars; and that when arrested defendant stated to the officer that he purchased these orders from an unknown man for ?100, the court did not err in refusing to instruct the .jury to acquit defendant on the ground that there was no evidence to prove that defendant wrote or caused to be written the express money order described in the information.
    12. -: Information. The information set out in the statement charging defendant in the first count with having forged an express money order and in the second count with having uttered said order, which is set forth in full in both counts, is held to follow the statute, to specifically allege the time and place where the offense was committed, and to be sufficient.
    Appeal from. Jackson Criminal Court.— Hon. J. H. Slover, Special Judge.
    Reversed and remanded.

      A. E. Martin and L. N. Dempsey for appellant.
    (1) The court, in compelling defendant to go to trial without his witnesses, committed error. Defendant had taken all legal steps to get his witnesses, even to an attachment, and all of said witnesses not appearing were important and necessary by which defendant could have proven facts that he could not prove by any other witnesses. (2) (a) The court erred in permitting the State, over the objection of defendant’s counsel and against their exception, to cross-examine Della Bell, wife of defendant, about matters and subjects not examined about in chief, and about correspondence and communication made between her and her husband, in violation of section 2637, Revised Statutes 1899, that the testimony of Mrs. Bell as to going with Mr. Bell from Kansas City to St. Louis and as to Bell showing her the package of money orders, shown her by the prosecuting attorney, and whether Bell concealed them from her, and whether he told her about being at Warsaw and buying a farm, and whether he wrote to her and where from and what she did with his letters, and that she burned them, and that she saw some of the letters in St. Louis, and that she went to Mr..Martin’s residence to consult him about her husband’s case, and whether she and all the witnesses who testified on insanity had not learned their story together, etc., and the defendant did not tell her that he had stolen the various orders, and that he had given an order for some silk and change, and that he had given an order for a pair of shoes and change, which was all incompetent, illegal and highly prejudicial to the defendant. • Kelley, Or. L., sec. 271; 166 Mo. 239; 89 Mo. 133; 95 Mo. 510; Underhill, Or. L., sec. 187; Wharton, Or. Ev., sec. 398; 146 Mo. 225; 55 Mo. 91; 119 Mo, 474. (b) The court erred in permitting the State to prove by the witness, Detective Ghent, statements made by defendant to Ghent with reference to other Pacific Express money orders than the one for which defendant was on trial, and statements in reference to the purchase of a farm by defendant Bell. 82 Mo. 558; 104 N. T. 591; 7 Texas App. 501. (c) The court erred in permitting Hodgson to testify that the depot at Warsaw was burglarized and Pacific Express money orders stolen, for the reason that defendant had not been connected with the crime with which he was charged. Wharton, Or. Ev. (9 Ed.), sec. 47, p. 49; 82 Mo. 558; 144 Mo, 54; 88 Mo. 604. (d) The court erred in refusing to let Dr. W. D. Field and other physicians answer the hypothetical question based on the evidence of insanity in the case, propounded to them by defendant’s counsel, for said question covered the evidence of insanity in the case. Lawson, E'x. Test., p. 167; Jones, Ex. Test., sec. 337; Rogers, Ex. Test., sec. 27; 99 Mo. 121; 108 Mo, 150; 137 Mo. 64; 175 Mo, 207. (e) The court erred in ruling that Dr. Theodore Schaffer could not be compelled to answer the questions asked by defendant’s counsel as to his opinion of the mental condition of defendant from the examination Dr. Schaffer had made of defendant at that time and at the time of the trial, unless the doctor was paid in advance for his opinion. (3) The State wholly failed to prove the defendant’s connection with the crime alleged, in that there was no testimony to prove that defendant wrote or caused to be written Pacific Express money order, No. 207369. Hughes’ Or. L., sec. 927; Wharton, Cr. L., sec, 1465a; 166 Mo. 241; 152 Mo. 123, (4) The court erred in ruling that Dr. Theodore Schaffer could not he compelled to answer the questions ashed by defendant’s counsel as to his opinion of the mental condition of defendant from the examination Dr. Schaffer had made of defendant several months before, and the doctor’s observations of defendant at that time, and at the time of the trial, unless the doctor was paid in advance for his opinion. Eogers, Ex. Test., p. 311, sec. 310; Ewell’s Med. Jur., p. 15.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The information, which was accompanied by the affidavit of the prosecuting attorney, is sufficient in form and substance. Kelley’s Criminal Law, sec. 780’; State v. Gullette, 121 Mo. 448; B. S. 1899, secs. 2009 and 2014. (2) (a) Defendant’s counsel objected to the State’s evidence tending to show that defendant committed other forgeries than the one here charged. But the rule of law has long been established, especially in Missouri, that, upon an indictment for forgery, evidence is admissible tending to show that the defendant has been guilty of other forgeries, committed about the same time. State v. Hodges, 144 Mo. 50; State v. Minton, 116 Mo. 613; State v. Myers, 82 Mo. 558; State v. Prins, 117 Iowa 505; Com. v. White, 145 Mass. 392; Davis v. State, 58 Neb. 465; Underhill on Crim. Evidence, sec. 423; 1 Wigmore on Evidence, sec. 312; 4 Elliott on Evidence, sec. 2990; 3 Greenl. on Evidence, sec. 111. (b) Defendant’s counsel also objected to State’s witnesses Hodgson and Scott testifying to the fact that a day or two before the money orders were passed, the defendant appeared at the office of the Pacific Express Company, in Warsaw, Missouri, bought a money order, saw where the blank money orders were kept, and to the further fact that that night some one broke into the office and carried off a book containing a number of blank money orders, one of which was the money order in question. This evidence was objected to on the ground that it tended to prove that the defendant was guilty of burglary and larceny, crimes other than the one for which he was then on trial. While the general rule of evidence prohibits the introduction of evidence tending to prove that the defendant is guilty of the commission of other crimes, yet there is a well-recognized exception thereto. 4 Elliott on Ev., sec. 2720; Underhill on Crim. Ev., sec. 90; State v. Medigan, 57 Minn. 432; State v. Spangh, 200 Mo. 595. (c) Defendant’s objection to the introduction in evidence of the money order, because it was not shown that the Pacific Express Company was authorized to do business in Missouri, can hardly be considered seriously. It has often been held by this court that it is not necessary even to introduce the record, and prove that a corporation is duly incorporated; but that parol evidence of that fact is sufficient. State v. Jackson, 90 Mo. 159; R. S. 1899, sec. 2634. But whether said company was a corporation or not, and whether it was authorized to do business in Missouri or not, were immaterial questions in this case, especially after defendant interposed a plea of insanity. By his plea of insanity, defendant admitted the commission of the criminal act, but interposed as a defense thereto that his mental condition was such that he could not distinguish between right and wrong. Judge Sherwood, in State v. Pagels, 92 Mo. 309', said that such a defense was in the nature of a plea of confession and avoidance, and that it was wholly immaterial to discuss whether or not dying declarations (or, as in this case, the authority of the express company) were properly received in evidence. State v. Welsor, 117 Mo. 579; State v. Stubblefield, 157 Mo. 364. (3) There was sufficient evidence to justify the conviction of the defendant of the crime charged. Indeed, Ms plea of insanity admitted Ms guilt, but asserted that he was not responsible for his conduct. State v. Y7 els or, supra; State v. Pagels, supra.
   GANTT, J.

— This is an appeal from a conviction in the criminal court of Jackson county of forgery in the third degree.

The prosecution was commenced on the 21st day of November, 1906, by information, duly verified, in which defendant was charged in the third degree with forging a Pacific Express money order for fifty dollars and in the second count with uttering the same money order to the Jones Dry Goods Company, a corporation, on October 9th, 1906. At the January term, 1907, the defendant was tried and convicted of forgery and. his punishment assessed at two years in the penitentiary. After unsuccessful motions for a new trial and in arrest of judgment, the defendant appealed.

The evidence on behalf of the State tended to prove that the Jones Dry Goods Company was a corporation organized under the laws of Missouri, and conducting a dry goods store in Kansas City; that the defendant visited said store on- the 9th of October, 1906, and purchased $9 worth of silk, for which he gave in payment a Pacific Express money order for fifty dollars. This money order was dated Warsaw, Missouri, October 9th, 1906,. and was made payable to J. W. Clark or order. The defendant stated that his name was Clark, and he had purchased the money order just before going to Kansas City, as he did not wish to carry so much money with him. The cashier of Jones Dry Goods Company accepted his story and paid him the difference between the amount of the order and his purchase, which money defendant carried away with him with the silk. This money order proved to be a forgery. The agent of the express company at Warsaw testified that he did issue a money order to the defendant under the name of W. H. Allen for five dollars, a day or two before the transaction in question, and that that night someone broke into his office and stole ten blank money orders of the Pacific Express Company; one of these orders was numbered the same as the one which the defendant passed at the Jones Dry Goods Company, and the agent testified that it was never signed or issued by him. The name of W. H. Bowman, agent, was signed to this money order, but that was not the name of the agent at Warsaw of the Pacific Express Company on that date, nor was it the name of any former agent of said company at said place. The evidence further tended to show that the defendant then went to the trunk store of W. P. George & Company, and purchased a trunk for $23, saying that it was for his wife, and he had a wire fixture placed in it for carrying a lady’s bonnet. In payment for this trunk he gave another money order for fifty dollars, which he endorsed J. W. Clark and which Mr. George accepted, paying him the difference of $27 in money. On the same day he passed a similar money order on the Mitchell Dry Goods Company in Kansas City in payment for a pair of shoes. In the course of a few days, the defendant was arrested in St. Louis and had in his possession the pair of shoes last mentioned and the trunk. Officer Ghent went to St. Louis for the defendant and on the way back to Kansas City asked the defendant how he happened to have all these money orders in. his possession. The defendant said: “You have treated me pretty nice, and I will tell you the whole facts about this. I bought these drafts from a man and gáve him $100 for them at Warsaw.” When the officer asked him who the man was, the defendant said he did not know. The officer said it was strange for him to buy such stuff as that from an unknown man and the defendant said he would tell who the man was later on. The defendant'also said he was in the saloon business on Main street in Kansas City. On behalf of the defendant there was evidence tending to show that he was insane from the time he was arrested and put in jail in Kansas City and at the time of the commission of the offense charged. In rebuttal the State offered evidence that the defendant was of sound mind at the time of the commission of the crime and at the time of his. arrest.

As the information is assailed it is deemed necessary to insert it.

“State of Missouri, County of Jackson, ss.

“In the Criminal Court of Jackson County, Missouri, at Kansas City, Missouri, September Term, 1906.

“Now comes Isaac B. Kimbrell, prosecuting attorney for the State of Missouri, in and for the body of the county of Jackson, and upon his oath informs the court that "W. H. Bell alias J. W. Clark, whose Christian name in full is unknown to said prosecuting attorney, on the 9th day of October, 1906, at the county of Jackson, State of Missouri, feloniously and wilfully did forge, counterfeit and falsely make a certain false, forged and counterfeited express money order which said express money order was then and there an instrument of writing purporting to be the act of another and which said instrument of writing purported to create a pecuniary demand and obligation, which said false, forged and counterfeited express money order and instrument of writing is of the purport and- effect following, to-wit: ‘Express Money Order N. 207,369'. When countersigned by agent at point of issue the Pacific Express Company agrees to transmit and pay to the order of J. W. Clark $50 the sum of fifty No. 100 Dob lars. Not good for more than highest printed marginal amount. In no case to exceed fifty dollars. W. R. Carter, Treasurer. Countersigned W. H. Bowman, agent. Issued at Warsaw, Mo. State of----. Name of remitter J. W. Clark. Date October 9', 1906. Any erasure, alteration, defacement or mutilation of this order renders it void,’ with the felonious intent thereby then and there to injure and defraud, against the peace and dignity of the State.

“And the prosecuting attorney aforesaid, upon his oath aforesaid, further informs the court that W. H. Bell alias J. W. Clark whose Christian name in full is unknown to said prosecuting attorney, on the 9th day of October, 1906, at the county of Jackson aforesaid, unlawfully and feloniously had in his custody and possession a certain false, forged and counterfeited express money order which was then and there an instrument of writing purporting to be the act of another and which said instrument of writing purported to create a pecuniary demand and obligation which said false, forged and counterfeited express money order and instrument of writing is of the purport and effect following, to-wit: ‘Express Money Order N. 207,369. When countersigned by agent at point of issue the Pacific Express Company agrees to transmit and pay to the order of J. W. Clark $50 the sum of fifty No 100 Dollars. Not good for more than the highest printed marginal amount. In no case to exceed fifty dollars. W. R. Carter Treasurer. Countersigned W. H. Bowman, agent. Issued at Warsaw, Mo. State of ■ — ■—--. Name of remitter J. W. Clark. Date October 9th, 1906. Any erasure, alteration, defacement or mutilation of this order renders it void,’ and the said W. H. Bell alias J. W. Clark whose Christian name in full is unknown to said prosecuting attorney, did afterward, to-wit, on the day and year aforesaid, at the county of Jackson, State aforesaid, unlawfully and feloniously with the felonious intent to injure and defraud, sell and deliver the said falsely made, forged and counterfeited express money order and the instrument of writing to Jones Dry Goods Company, a corporation, for the consideration and sum of fifty dollars with the felonious intent to have the same uttered and passed, he, the said W. H. Bell alias J. "W. Clark, then and there well knowing the said express money order and instrument of writing to be falsely made, forged and counterfeited, against the peace and dignity of the State. Isaac ,B.' Kimbbebl,

“Prosecuting Attorney.

“Isaac B. Kimhrell, Prosecuting Attorney of Jackson County, Missouri, makes oath and says that the facts stated in the above and foregoing information are true to his best knowledge, information and belief.

“Isaac B. Kimbrell,.

“Subscribed and sworn to before me this 21st day of November, 1906. Andy E. Thomas,

‘ Clerk of the Criminal Court of

“By Edwin Turner, Deputy Clerk.”

Other facts as to the admission and rejection of testimony will be noted in the course of the opinion in connection with the assignments of error. The instructions will also be considered under the assignments of error. The various assignments of error will be considered in the order of the brief of the defendant.

I. There is no merit in the claim that the defendant was forced to go to trial without his witnesses. He made no application for a continuance, although an opportunity was afforded him to do so.

It is next objected that the court erred in permitting the State to cross-examine Mrs. Della Bell, the wife -of the defendant, about matters and subjects on which she was not examined in chief and concerning correspondence and communications made between her and her husband, in violation of section 2637, Revised Statutes 1899. The defendant called his wife as a witness and she testified at length in support of his defense of insanity and was permitted without objection on the part of the State or defendant’s counsel to detail many of the statements made by her husband in regard to the death of his child and his charge of malpractice against the doctors who had attended the little one in its last illness. She told of their trip from Kansas City to Marshalltown, Iowa. On cross-examination she was asked when they returned from Iowa to Kansas City where they resided and she said they only remained in the city two days, and then without objection the prosecuting attorney inquired where they went when they left Kansas City, and she answered St. Louis. She was then asked where they stopped while in St. Louis, and she said at the Union Station for about two hours. Asked where he was she said they had him over at the Four Courts. It is now assigned as error that the State was permitted to prove by her that defendant went from Kansas City to' St. Louis. Of course there was no objection whatever to this. It is now too late to make it, even if it had been material. [State v. Mills, 88 Mo. 417.]

Again, it is objected that the prosecuting attorney was permitted to ask her in regard to her knowledge of her husband having a package of money orders. In regard to this she testified without objection that she knew he had three money orders when he was arrested in St. Louis, but when she was asked how she knew this, the counsel for the defendant did object on the ground that she had not gone into this matter in her direct examination. But the court ruled that it was proper, and in her answer she stated that the officer told her about the checks and she had seen them in her husband’s pocket. She was also examined at length as to whether her husband said anything to her about cashing one of these money orders at Jones Brothers’ and at Mitchell’s in Kansas City, and she answered that he did not. She was also interrogated as to letters which she received from her husband over the exception of the defendant and she testified that she had received letters from him and burned them promptly after receiving them. It is clear, we think, that the testimony obtained by this cross-examination was not upon matters that Mrs. Bell had testified to in her examination in chief, and as to the letters which passed between her and her husband it was clearly prohibited by the statute which forbids either husband or wife to disclose confidential communications. The testimony obtained from her that she saw these blank express money orders in the possession of her husband at St. Louis and before that time in his pocket, was very material testimony tending to establish the guilt of the defendant. [State v. Willis, 119 Mo. 485.]

This witness was also examined at great length as to the conferences she had had with the counsel for the defendant at the residence of the latter before the trial over the objection of the defendant and his counsel. She had a perfect right to consult with her husband’s counsel for the preparation of his defense and the State had no right to make her disclose the confidential conversations between her and her counsel and the objection to this evidence should have been sustained.

II. There was no error in permitting the State to prove by officer Ghent statements made by defendant to him with reference to the Pacific Express money orders and the manner in which the defendant obtained the same; neither was there any error.in permitting Hodgson and Scott, the agents of the express company at Warsaw, Missouri, to testify that the depot or station house in which the express company’s office was situated was burglarized a day or two before the money orders were passed by the defendant in Kansas City. The objection was that this evidence tended to show the defendant guilty of another and distinct crime, to-wit, burglary and larceny. The general rule of evidence unquestionably prohibits testimony tending to prove the defendant guilty of the commission of another and distinct offense from that for which he is on trial, hut it is a settled law of this State that if the commission or attempt to commit another crime tends to establish the commission of the crime in question, or in fact is one of its constituent elements, it is admissible just as any other evidence to establish that fact. [State v. Spaugh, 200 Mo. l. c. 595, and cases cited.] Obviously, it was most material evidence to show the presence of the defendant at Warsaw at or about the time these particular money orders were stolen from the office of the express company at that place, in connection with the other testimony that on the day before these orders were uttered and passed by the defendant in Kansas City, he had purchased another express order for $5 from the agent at Warsaw.

We do not think there is any merit in the objection that the money orders were not admissible because it has not been shown that the express company was authorized to do business in Missouri. The testimony tended to show that the defendant was doing an express business in Missouri and the orders upon their face purported to be the act of the express company by which the pecuniary demand or obligation purported to be created on the part of the said company, and this was sufficient to bring it within the statute, section 2009, Revised Statutes 1890. [State v. Gullette, 121 Mo. l. c. 456.]

Defendant also insists that the court erred in refusing to let Doctor Field and other physicians answer hypothetical questions based on the evidence tending to show the insanity of the defendant. The State objected to the question propounded by the counsel for the defendant on the ground that it did not cover all the testimony in the case and the court sustained the objection. In State v. Privitt, 175 Mo. l. c. 225, it was said by tbis court: “In putting hypothetical questions to an expert witness, counsel for the State had the right to assume the facts in accordance with his theory of them; it was not essential that he shonld have stated the facts as they actually existed. . . . Nor is such a question improper simply because it. includes only a part of the facts in evidence.” We think, therefore, the objection was improperly sustained on this ground to hypothetical questions submitted to Doctor Field, but the question still recurs as to whether the court committed error in declining to permit the doctor to answer this question. Dr. Field expressly declined to testify as an expert on insanity. While non-expert witnesses may give their opinions as to the sanity or insanity of a person after stating the facts upon which they predicate their opinion, it is conceded by all courts 'that an expert may give his opinion a,s to the sanity or insanity of a given person upon a hypothetical statement of the facts, but' the competency of the witness as an expert must be first satisfactorily shown to the court. [Graney v. Railroad, 157 Mo. l. c. 680.] In Carr v. Northern Liberties, 35 Pa. St. 324, it is said: “Matter of opinion is entitled to no weight with a court or jury, unless it comes from persons who first give satisfactory evidence that they are possessed of such experience,- skill or science in such matters as entitles their opinions to pass for scientific truths.” It has sometimes been said that the opinion of the witness as to his own qualification is irrelevant and carries no weight with it, but we take it that this was said of witnesses who professed to be experts without any evidence that they had the qualifications as such, but when a witness declines as Dr. Field did to testify as an expert, and the only evidence tending to show that he was an expert on insanity was that he was a physician of some twenty-five years’ practice, without any showing that he ever had any occasion to treat patients for insanity or had any experience in that particular branch of his profession and'he himself declined to testify as an expert, we think that his answer to the hypothetical question should have been excluded on the ground that he had not been shown to be an expert, and therefore was not competent to speak on that subject.

III. Defendant also complains of the action of the court in refusing to require Dr. Schaffer, a physician and witness for the defendant, to answer a question as to whether a certain incurable disease after running six or eight months or a year, • would cause paralysis. When this question was propounded to the witness he answered that that was a specialized question and he expected to receive remuneration if he was required to give expert testimony. And the court sustained the witness in his refusal to answer until he had first received his fee for his opinion as an expert. In so ruling we think that the learned circuit court erred. Whether a physician called to testify as an expert may be compelled to state his opinion upon a hypothetical or other question involving his professional knowledge without compensation other than the witness fees allowed' all other witnesses by law, has been a much mooted question. In Burnett v. Freeman, 125 Mo. App. 683, the authorities on both sides of the proposition were .carefully collated by Judge Ellison, and the conclusion was reached by the Court of Appeals that a witness called to testify as an expert,. whether a physician or an expert in any other branch of knowledge, could be compelled to state his opinion upon a hypothetical or other question involving his professional knowledge without further compensation than that allowed by law to other witnesses. Said the court: “It is the duty he owes to the State in aid of its orderly existence and in return for which he enjoys its protection and the administration of its laws in his behalf; not least of which would be the compulsion of other experts, whether they be the man who practices a profession, the artisan, the artist, the tradesman or other person to come to his aid when needed in litigation in which he might unfortunately be involved. ... It should be remembered that the duty the expert owes to the State, as a performance of citizenship, rather than a rendering of service to an individual, pertains to an obligation to give the court the benefit of the knowledge he has in store at the time he is called upon. He cannot be required to especially fit himself for lines of inquiry. He should not be expected to make examinations, perform professional service and the like. For that is not the office of a witness. He could not be compelled to do that any more than an ordinary person, with no knowledge of the facts pertaining to a case, should be required to go and post himself so as to become a witness.” After a full consideration of the various cases and the very satisfactory opinion of the Court of Appeals, we think that the Court of Appeals reached the proper conclusion on this question and supported it by satisfactory reasoning. [Ex parte Dement, 53 Ala. 389; Summers v. State, 5 Tex. App. l. c. 377; State v. Teipner, 36 Minn. l. c. 537.]

IV. It is also assigned as error that the circuit court erroneously declined to instruct the jury to acquit the defendant on the State’s evidence on the ground that there was no testimony to prove that the defendant wrote or caused to be written the express money order described in the information. But we think there was no error in submitting the cause to the jury under proper instructions. The evidence tended to show that a day or two prior to the uttering of these forged orders by the defendant in Kansas City the blanks of these forged orders were in the possession of the express company at its office in Warsaw, Missouri, and the defendant was in the city of Warsaw and in the office of the express company and that the office of the express company was burglarized on the night after he had purchased another express money order from the agent at Warsaw for $5, and these money orders that were uttered by defendant in Kansas City were in his possession thus recently after they had been feloniously stolen and taken from the office of the express company at Warsaw. More than that, he stated to officer Ghent that he bought these drafts from a man and gave him one hundred dollars for them at Warsaw. The evidence abundantly demonstrated that the defendant was the utterer of the forged express money orders in Kansas City. In State v. Yerger, 86 Mo. l. c. 38, 39, this court approved the decision in Common-, wealth v. Talbot, 2 Allen 161, in which the defendant was indicted for forging a receipt and the trial court instructed the jury that the possession of the instrument by the person claiming under it or seeking to derive benefit from it, was strong evidence tending to show that he made the false signature or caused it to be made, and this instruction was expressly approved by the Supreme Court of Massachusetts. Upon a like state of facts where the forged instruments were found in the hands of the accused, similar rulings have been made in other States. [See authorities cited in State v. Yerger, 86 Mo. l. c. 39.] As was said in the last-eited case, “Bishop treating of this point and' of the current of the American authorities in respect thereto, remarks: ‘They seem to indicate that, generally, the possession of forged paper, or, at all events, the uttering of it in the county where the indictment is found, is cognate evidence to be addressed to the jury, that the forgery of the paper was committed by the defendant in the same county. [2 Bishop’s Crim. Proc., sec. 433.]” So that the facts in evidence as to the presence of the defendant in the county where the blank money orders were stolen from the express office, his appearance with them on the next day in Kansas City and his uttering- of the same, taken in connection with his improbable story of having purchased the same for one hundred dollars in Warsaw, fully justified the court in submitting the case to the jury and in refusing to direct the acquittal of the defendant.

Y. As to the assignment that the court failed to define the crime of forgery, we think there is no merit in the point. The first instruction given by the court sufficiently defined the offense. Certain it is that the defendant cannot complain that the court did not specifically tell the jury the effect of the evidence tending to tshow the uttering of the said money orders by the defendant.

There is nothing in the record tending to support the ground of error to the effect that the jury was allowed to separate.

The plea of insanity was submitted to the jury under instructions often approved by this court and left nothing to be desired under that subject.

As to the assignments assailing the sufficiency of the information, we think there is no force or merit in the objection. The information follows the statute and specifically alleges the time and place where the offense was committed and sets forth the forged instrument in full.

For the errors noted in excluding the hypothetical questions to Dr. Schaffer, and in holding that the defendant must incorporate all the evidence adduced in its hypothetical question, and for permitting the cross-examination of Mrs. Bell as to matters to which she had not testified in her examination in chief, and as to confidential communications between her and-her husband, the judgment must be reversed and the cause remanded for new trial, and it is so ordered.

Fox, P. J., and Burgess,, J., concur.


source: Caselaw Access Project

author: •GANTT, J.

license: Public Domain

text:
    THE STATE v. WILLIAM H. BELL alias J. W. CLARK, Appellant.
    (No. 2.)
    Division Two,
    May 19, 1908.
    1. DEFENDANT UNDER SENTENCE: Trial and Conviction. A defendant, who was at one term tried and convicted of a felony and sentenced, cannot be held in jail until the next term of court and then be tried and convicted of another felony. If the prosecuting attorney desires to prosecute him under separate informations each charging a felony, both prosecutions must taire place at the same term, and if the defendant be found guilty in one, the sentence in that must be postponed until after trial and conviction in the other, or a conviction in such other cannot stand.
    2. -: -: No Objection. If it is apparent from an ex- . amination of the records in the two separate cases that defendant was tried and convicted in one while he was under sentence in the other, the Supreme Court, notwithstanding no objection was made by him at the trial to such prior conviction and sentence, will reverse the judgment.
    Appeal from Jackson Criminal Court. — How. J. FL. Slover, Special Judge.
    Reversed and remanded.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
   •GANTT, J.

— This is an appeal from the judgment of the criminal court of Jackson county from a conviction of uttering a forged instrument knowing the same to have been forged and counterfeited, and a sentence of five years in the penitentiary thereon.

The evidence and facts in this case are precisely the same as those appearing in the companion case of State v. Bell, ante, page 111, and it is therefore unnecessary to reproduce the same. The information is the same except that in this ease the forged instrument was of a different express money order, which was passed upon the firm of W. P. George & Company. The cause was tried by the court upon the same theory that was pursued in the other case and the court made the same rulings in regard to the cross-examination of the wife of the defendant and the rulings as to the requirements of the hypothetical questions propounded to the experts called in behalf of the defendant. Those rulings for the reasons given in State v. Bell, supra, must likewise be held to have been erroneous and the cause- must be reversed and remanded for a new trial.

Counsel for the defendant did not present the objection that the defendant had already been tried and convicted and sentencd to the penitentiary at a former term of the court, and that therefore the court could not regularly put him upon trial at the April term, 1907, until he had either served his term of punishment under the conviction obtained at the January term, 1907, or that judgment had been reversed and the cause remanded for a new trial, but this is apparent upon the two records before us. It was said by this court in State v. Buck, 120 Mo. l. c. 496: “Prom the time of the conviction and sentence of the defendant in the first ease he was in legal contemplation in a custody different from that of the circuit court, and could not be put upon his trial in another case until he had served out his time for which he had been sentenced in the first, or until the judgment and sentence in the first case had been set aside or reversed; until then it is to be deemed of full force and effect.” In Ex parte Meyers, 44 Mo. l. c. 282, the court says: “The courts in this State have no common-law jurisdiction in felonies, and the powers that they exercise are snch as are conferred hy statute only.....There is no provision anywhere made, that I have been able to find, where separate sentences can be passed upon a prisoner, and he be subjected to more than one term of punishment, unless the different convictions were had at the same term, and both were obtained previous to the sentence. But there is no authority for convicting a prisoner of a felony at one term of the court, and regularly passing sentence upon him, and then remand-him to jail until the next succeeding term, and again convicting and sentencing him for another felony.” See, also, State v. Connell, 49 Mo. 282; Ex parte Jackson, 96 Mo. 116; Ex parte Allen, 196 Mo. l. c. 231. Accordingly the judgment and sentence in this court must be reversed and remanded for the errors noted in the companion case of State v. Bell, supra, and if the prosecuting attorney desires to prosecute the defendant on both of said informations both prosecutions must take place at the same term, and if the defendant be found guilty the sentence should be imposed after the conviction in both cases as required by our statute in such cases made and provided. Judgment reversed and cause remanded for new trial.

Fox, P. J., and Burgess, J., concur.


author: BURGESS, J.

text:
    THE STATE v. JOHN CHENAULT, Appellant.
    Division Two,
    May 19, 1908.
    1. INSTRUCTIONS: All Questions of Law. Exceptions should be saved at the time of the giving of instructions to the failure of the court to instruct on all questions of law in the case.
    2. MOTION FOR NEW TRIAL: Subsequent Motion. Where appellant filed two motions for a new trial, if the first was filed .within four days after verdict, and the second was not, the second cannot be considered, either by the trial court or by the appellate court.

      3. REMARKS OF COUNSEL: No Exceptions. Unless the defendant asks the trial court to rebuke the prosecuting attorney for improper arguments and remarks made to 'the jury, and excepts to the court’s action for its failure to do so, the propriety of such remarks or of such ruling, although objected to at the time, cannot be considered on appeal.
    4. WEIGHT OF EVIDENCE: Manslaughter. It is the province of the jury to pass upon the weight of the evidence; and where there was ample evidence to take the case to the jury, under a valid information charging defendant with murder in the second degree, and they return a verdict of guilty of manslaughter in the second degree, under proper instructions, the Supreme Court will not interfere with their verdict.
    Appeal from Butler Circuit Court. — Now. J. C. Sheppard, Judge.
    Affirmed.

      Herbert S. Hadley, Attorney-General, and Frank Blake, Assistant Attorney-General, for the State. ■
    (1) The information properly charges murder in the second degree, and is sufficient; it supports the verdict of manslaughter in the second degree. Sec. 1816, R. S. 1899'; State v. Lowe, 93 Mo. 547; sec. 2369, R. S. 18991; Kelley, Crim. Law & Prac., sec. 503, p. 328. (2) At the trial, defendant objected to the giving of all the instructions and saved his exceptions. Objection was not made at the trial that the court failed to give all proper and needful instructions. If the court failed to instruct the jury upon all questions of law arising in the case, which were necessary for the information of the jury in giving their verdict, exceptions should have been saved at the time of such failure. State v. Cantlin, 118 Mo. 111. (3) The first motion for new trial filed, is the only one which can be considered by the court. According to the record, the verdict was rendered upon Saturday, April 13, 1907, at 12:15 a. m. Upon Wednesday, April 17, 1907, the first motion for new trial was filed. This was within time. The amended motion for new trial was filed upon Friday, April 19, 1907. This amended motion for new trial not being filed within four days of the verdict, was filed too late and cannot be considered. Sec. 2689, R. S. 18991. (4) The motion for new trial does not properly save an exception to the action of the court in refusing to rebuke the prosecuting attorney on account of the remarks made by him in arguing the case before the jury. The only objections counsel made as to the remarks of the prosecuting attorney were (1) when reference was made to the wound on defendant’s hand. Counsel for the defendant stated that there was “no evidence whatsoever about any other trial. ’ ’ The court answered by saying that the defendant himself answered the question. (2) The other objection made by counsel for the defendant was the remark made by Judge Raney that it is “about time to put a stop to the killings and murders in this country.” Objection was made by counsel to this remark, but the hill of exceptions fails to show that he either asked the court to rebuke the prosecuting attorney for the remark, or saved an exception to the action of the court for failure so to do. Consequently, counsel is in no position to raise any question as to any of the remarks made by the prosecuting attorney. (5) The Supreme Court will not weigh evidence, where there is sufficient evidence, if believed by the jury, to justify their verdict of conviction. State v. Richmond, 186 Mo. 83; State v. Lorts, 186 Mo. 122.
   BURGESS, J.

— On January 15,1907, the prosecuting attorney of Butler county, Missouri, filed an amended information in the circuit court of said county, charging the defendant with murder in the second degree, in having shot and killed, with a pistol, one John Hargrove, also known as John McCall. The case was first tried on January 23,1907, when the jury disagreed and were discharged. The second trial occurred on April 12, 1907, which resulted in the conviction of defendant of manslaughter in the second degree, his punishment being assessed at three years in the penitentiary. Defendant filed motions for a new trial and in arrest, which were overruled by the court, whereupon defendant appealed.

The testimony showed that on the afternoon of December 29,1906, the defendant and deceased were in and around Wright’s saloon in Poplar Bluff, Butler county, Missouri. The deceased was in the saloon, talking to a friend, and the defendant was outside talking to some one, and gesticulating and “making faces” at the deceased, who was looking at him through the glass door of the saloon. Deceased asked E. E. Fee, to whom he was talking, if he did not see the defendant making motions and nodding his head towards him. Fee said he did, but advised the deceased not to notice the defendant as he didn’t amount to much. The deceased, however, stepped to the door and asked the defendant what he was making faces at him for. The defendant said he was not making faces at him, but that he was not afraid to do so. They began arguing about the matter, and each called the other a liar, other vile language being also used by both. The deceased walked towards the defendant, when the defendant backed away, reached for his revolver, which was seen by several witnesses, and told the deceased to keep off. Then the deceased turned and ran quickly into the saloon for a shot-gun of his which had been loaned by him to a hunter and which had been left at the saloon for him a few days before. In the meantime, the defendant went into an alley on one side of the saloon, and crouched down on the lower steps of a stairway which led up to the second story of a building immediately across the alley from the saloon. The deceased came out the side door of the saloon, with the gun in his hands, but he was immediately stopped by one D. II. Black, who tried to take the gun away from him and prevent Mm from firing at the defendant. Black testified that just as the deceased was making an effort to fire, lie struck the gun up with. Ms hand. The gun went off, and the shot took effect in the wall of the house a few feet above the head of the defendant. Other witnesses testified, however, that the deceased fired the'shot before Black got to him. The distance between the deceased and the defendant at the time was about twenty-five or thirty feet. Several bystanders took hold of the deceased and prevented him from doing anything further. Just after the shot was fired the defendant left the stairway, and ran towards and shot at the deceased. Several witnesses testified that the deceased was being held at the time the defendant shot. The first shot not having taken effect, the defendant reached over the shoulders of one of the men who had hold of the deceased, and placing the pistol close to the body of the deceased, fired a second shot, which caused the death of the deceased. Dr. Greene, who made a post-mortem examination of the deceased, testified that the wound made by the bullet was on the left side,.between the first and second ribs, and ranged downwards. He noticed some gunpowder on the lips of the deceased. There was evidence to the effect that the defendant, on the day. of the difficulty, had made threats against the deceased, and that, some time before, the deceased had made threats against the defendant. The defendant testified that one of the shots from the shot-gun had struck him in the wrist, but he also said that he did not so testify at the first trial of the case.

While the defendant is not represented in this court, we have carefully examined the record and shall pass upon such questions presented therein as seem to demand consideration.

The information charges the defendant with murder in the second degree, and is correct; and it also contains all necessary allegations for manslaughter in the second degree. [Sec. 2369, R. S. 1899; Kelley’s Crim. Law and Prac., sec. 503.]

The defendant objected to all the instructions given by the court, and saved his exceptions to thé action of the court in disregarding his objections, but made no complaint at the time of the failure of the court to give all proper and necessary instructions. In State v. Cantlin, 118 Mo. l. c. 111, it is said: “If the court did fail to instruct the jury upon all questions of law arising in the case, which were necessary for the information of the jury in giving their verdict, exceptions should have been saved at the time such failure occurred.”

While the defendant filed two motions for a new trial, only the first one filed can be considered, as it was the only one filed within four days after the verdict. [State v. Brown, 206 Mo. 501.]

It is asserted in the motion for new trial that “the court erred in permitting the attorney who represented the State, in his closing argument, to argue on facts, prejudicial to the defendant, things which had not been proven to the jury, and would have been incompetent if offered,” and “in not correcting or reprimanding the counsel for the State when he was making said improper statements or argument, when the defendant objected thereto, and in not in any way informing the jury to disregard such statements when considering of their verdict.” But this point must fail the defendant, as the record does not show that defendant either asked the court to rebuke the prosecuting attorney for any improper remarks made by him, or excepted to the court’s action in failing to do so. [Champagne v. Hamey, 189 Mo. 709; State v. Valle, 196 Mo. 29; Estes v. Railroad, 111 Mo. App. 1; State v. McCarver, 194 Mo. 717.]

There was ample evidence to take the case to the jury, whose province it was to pass upon its weight, and they having found the defendant guilty thereunder, this court will not interfere.

The judgment is affirmed.

All concur.


author: POX, P. J.

text:
    THE STATE v. J. E. McKEE, Appellant.
    Division Two,
    May 19, 1908.
    1. INFORMATION: Gaming Table: Crap Game. The information set out in the statement, charging defendant with setting up and keeping “a certain gaming table and gambling device, to-wit, one crap table, commonly so called, upon which dice were used, and which gaming table and gambling device were adopted, devised and designed for the purpose of playing games of chance for money, and property thereon,” etc., is sufficient in form and substance.
    2. CONTINUANCE: Not Reviewable. The overruling of defendant’s application for a continuance, if not assigned as error in his motion for a new trial, is not reviewable on appeal.
    3. LIMITATIONS: Reference in Instruction to First Information. An instruction in a felony case should require the jury to find that the acts complained of were committed within three years next before' the filing of the original information in the case; and a reference in the instruction to the day on which the first information was filed should be considered as an attempt to fix a period to the running of the Statute of Limitations, and not as indicating that defendant was tried on that rather than on the amended information.
    4. PRELIMINARY EXAMINATION: Information: Jurisdictional. The fact that defendant, charged by information with a felony, had been accorded the right of a preliminary examination, was not jurisdictional, and need not be alleged in the information.
    5. -: -: Denial: Appeal. Any failure to accord defendant a .preliminary examination as provided by statute only goes to the regularity of the proceedings, which may he taken advantage of by calling the court’s attention to that fact by an appropriate motion and by the offering of proof establishing • the fact. It is not established by the mere filing of a motion to quash or any other motion reciting such failure. Such recitals do not prove themselves. And absent such proof, or exceptions to the refusal of the court to hear it, the Supreme Court will not hold that there was no preliminary examination, nor is there anything on the subject for review.-

      6. EVIDENCE: Setting Up a Gambling Table. The evidence in the case points unerringly to the guilt of defendant of the offense of setting up and keeping “a gaming table and gambling device, to-wit, one crap table, commonly so-called, upon which dice were used,” etc.
    Appeal from Cole Circuit Court. — Eon. Wm. E. Martin, Judge.
    Affirmed.

      T. J. Rowe with. W. S. Pope for appellant.
    (1) An information in a felony case should allege that defendant had been accorded the right to a preliminary examination. Washburn v. P'eople, 10 Mich. 383; State v. Barnett, 3 Kan. 255'; Ex parte O’Brian, 127 Mo. 477; People v. Cassels, 5 Hill 164. Jurisdiction in the court is the power to hear and determine the particular case involved. If this power to hear and determine the particular case does not exist in the court in point of law, then there can be no jurisdiction in the case. People v. District Court, 26 Colo. 386; Bassick Min. Co. v. Schoolfield, 10 Colo. 46; In re Mahany, 183 Cal. 379; Douglas v. State, 117 Ala. 185. Jurisdiction is defined to be the authority of law to act officially in the matter then in hand. Jones v. Brown, 54 Iowa 74; Grove v. Yan Duyn, 44 N. J. Law 657; Bingham v. Henrici (Pa.), 16 Atl. 618; Min. Co. v. Schoolfield, 10 Colo. 46; State v. Coleman, 186 Mo. 169; State v. Bonner, 178 Mo. 431. This is not a mere matter of procedure, it is a sacred guaranteed right. Can the court indicate by what special plea known to the law a defendant in a felony case proceeded against by information who had not been accorded the right to a preliminary examination, could properly raise the question, if it is not by a demurrer or motion to quash the information? An information filed without warrant or authority of law can confer no jurisdiction. (2) In this case defendant did not waive his right to a preliminary examination, and by his motion to qnash the information and by his motion in arrest of judgment questioned the jurisdiction of the court.
    ■ Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The second amended information, -which is accompanied by the affidavit of the prosecuting attorney of Cole county, is sufficient in form and substance. State v. Mathis, 105 S. W. 605; State v. Lockett, 188 Mo. 418; State v. Rosenblatt, 185 Mo. 120; Kelley’s Crim. Law, sec. 950. Defendant’s motion to quash said second amended information was without merit and was, therefore, properly overruled. State v. Holden, 208 Mo. 581. (2) Defendant, in his motion for a new trial, failed to assign as error the overruling of his application for a continuance; hence, that point has been waived. State v. Marshall, 34 Mo. 400; State v. Brennan, 105 S. W. 602. (3) The State’s instructions properly defined the crime charged, and correctly • informed the jury of its duty. State v. Davis, 203 Mo. 616; State v. Holden, 203 Mo. 581. (4) It can not be seriously contended that the evidence was not sufficient to justify the conviction of defendant. If any confidence can be placed in human testimony, and the testimony of the sworn officers of Oole county, certainly this defendant is guilty. State v. Miller, 190 Mo. 449; State v. Cronin, 1891 Mo. - 663; State v. Locket, 188 Mo. 415; State v. Mathis, 105 S. W. 604. (5) Counsel for defendant urged that the information should be quashed because defendant was not accorded a preliminary examination, prior to the filing of said information. It is true that the motion to quash contained an allegation to that effect, yet there was no proof offered on that subject; and it has always been the rule of practice that mere allegations in a motion do not prove themselves. State v. Hultz, 106 Mo-. 41; State v. Grant, 144 Mo. 66. Without conceding that the recent statute on that subject (Laws 1907, p. 243), is constitutional, counsel for the State suggests that the defendant is in no position to raise that question in this case. While he did assign that as one of the reasons for quashing the information, he did not assign the overruling of his motion to quash as one of the errors in the motion for a new trial. Even if error was committed in overruling the motion to quash the information, that error has been waived. State v. Brannan, 105 S. W. 602.
   POX, P. J.

— This cause is in this court by appeal

on the part of the defendant from a judgment of conviction in the Cole Circuit Court, for setting up and keeping gambling tables, and permitting and enticing-others to play thereon. The record in this cause discloses that on the 28th of June, 1907, the prosecuting attorney of Cole county filed in the circuit court of said county an information charging the defendant with setting up and keeping a certain gaming table and gambling device, and that he did then and there feloniously permit and entice divers persons to play at and upon and by means of said gambling device. To this information there was filed a motion to quash, which said motion was by the court sustained and leave was granted the State to file an amended information. Afterwards, on the 30 th day of July, 1907, the prosecuting attorney filed an amended information predicated upon the same state of facts as the first one. To this information the defendant interposed a motion to quash, which motion was by the court sustained and the State given leave to file a second amended information, and afterwards, to-wit, .on the 30th day of July, 1907, the prosecuting attorney filed his second amended information, which was duly verified, and omitting formal parts, was as follows:

“Now come J. Gr. Slate, prosecuting attorney of Cole county, State of Missouri, and in his official capacity and on his official oath informs the court that at the county of Cole and State of Missouri aforesaid on or about the 7th day of May, 1907, and on divers other days prior thereto, J. E. McKee did then and there unlawfully and feloniously set up and keep a certain gaming table and gambling device to-wit: one crap table commonly so called upon which table dice were used and which gaming table and gambling device were adapted, devised and designed for the purpose of playing games of chance for money and property thereon and he, the said J. E. McKee, did then and there feloniously induce, entice and permit D. E. McClure, Hal. Engelbrecht and other persons whose names are to this prosecuting attorney unknown, to bet and play at and upon and by means of said gaming table and gambling device, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State.”

To this information there was also filed by the defendant a motion to quash, which was subsequently taken up by the court and overruled. The defendant then presented his application for a continuance, which was by the court overruled, whereupon the defendant was duly arraigned, entered his plea of not guilty and was put upon his trial before a jury.

The evidence upon the part of the State which was developed at the trial tended to prove that J. W. Scott, sheriff of Cole county, in company with J. M. Jobe and W. H. Leslie, visited a gambling room on High street in Jefferson City, about nine o’clock on the night of May 7,1907. In order to gain admittance to said room, the sheriff was compelled to go up a hack stairway, into the building and through one room around into a second room. In said room they found the defendant, McClure and Engelbrecht, and several others. They also found a table, which was seven or eight feet long’ and between four and five feet wide, and a little higher than an ordinary table. This table was covered with a green covering and had a molding around the edge of the table two or three inches high. The cloth came up over the molding and around the end of the table. On said table were a number of dice, and a little box which was about four or five inches wide, which box contained the money. Pour hundred dollars in silver was found on the table and in the box; that in the box was locked up, All the money was of the denomination of silver dollars. At the time the officers made this raid, the defendant was sitting on a high stool beside the table, about the middle of the table, and the money lay right in front of him, stacked up close to the molding of the table. The defendant had charge of the money, and one of the other men, McClure, was pitching the dice. Engelbrecht had a little stick, about twelve or thirteen inches long, and was raking in the dice as they were pitched out upon the table. When the sheriff walked up to the defendant and told the defendant his business, the defendant said, “Wait a few minutes until this game is over. ’ ’ After waiting a little while, the defendant got his money together and the game wound up, Before entering said room, State’s witness, Jobe, watched the game through an opening in the door. He saw the defendant at the head of the table and money stacked up on the table around him; he could see the dice roll out and somebody bring them back to the defendant, when the dice were rolled out again. The defendant had control of the game, and also had the money under his hand. The game played was a crap game, commonly so called, and was played for money on said table with dice. State’s witness Brown testified that he was in said room before the officers came in and saw the crap game going on, McClure taking part in said game, and the defendant standing at the side of the table handling money. The evidence further showed that the game of craps can be played on a table like the one which the defendant had charge of, and colored persons sometimes play on the ground. The evidence further showed that the defendant frequently passed beer around to visitors in that room, and invited his friends to drink with him, saying that it would cost them nothing. During this game, where a party would shoot dice, the defendant would pay him if he won; if he lost, the defendant would get the money. The evidence further showed that this table could be very easily used for playing a game of craps, and it was used for that purpose that night. McClure, who was a very unwilling witness for the State, admitted that he had been up in that room and playing with the defendant, and admitted further that he had lost money just before the officers came in. McClure further said that he did not know whether that was a crap game or not; that he did not know much about craps. He further stated that he did not remember whether he had ever been up there before or not. Engelbreeht was equally as ignorant about who was conducting the game and what part the respective ■ players took in the game. He admitted, however, that some dice and a crooked stick were used; but stated that he did not know what this stick or the dice or the table was used for, although he had been in that room on two or three occasions when said implements were used. He even expressed ignorance of the fact that the stick might have been a walking stick, a broken stick. State’s witness Heinrichs testified that on the night in question he was in the room that the officers raided, and saw 'the defendant and his friends playing a game of craps on said table; that the defendant paid the others when they won, and that the defendant was managing and conducting the game on said table. State’s witness Clark testified that a table like the one described by the officers was one of the kind of crap tables used by gamblers.

At the close of the State’s evidence the defendant offered a demurrer and declined to introduce any evidence.

At the close of the evidence the court fully instracted the jury and the cause was submitted to them and they returned their verdict finding the defendant guilty as charged, assessing his punishment at imprisonment in the penitentiary for a term of two years. Timely motions for new trial and in arrest of judgment were filed and by the court overruled. Sentence and judgment were entered in accordance with the verdict of the jury, and from that judgment this appeal is prosecuted, and the record is now before us for consideration.

OPINION.

The record in this cause discloses the assignment of numerous errors as grounds for the reversal of this judgment., We will give to the complaints of appellant such consideration as in our opinion their importance requires.

I.

The amended information filed on July 30', 1907, upon which the defendant was tried, is in such form as has repeatedly met the approval of this court. [State v. Mathis, 206 Mo. 604; State v. Locket, 188 Mo. l. c. 418; State v. Rosenblatt, 185 Mo. l. c. 120; State v. Holden, 203 Mo. 581.] This being true, the action of the court in overruling the motion to quash the last amended information filed was proper.

II.

The action of the court in denying the application of the defendant for a continuance was not properly preserved in the motion for a new trial. The overruling of such application was not assigned by the defendant as error in such motion, hence that question is not before us for review. [State v. Marshall, 36 Mo. 400; State v. Brannan, 206 Mo. 636.]

III.

Learned counsel for appellant insists that the defendant was tried upon the information filed on the 28th of June, 1907, and in support of that contention directs our attention to instruction number 4, which requires the jury to find that the acts complained of in the information were committed within three years next before the filing of the information herein, to-wit, June 28,1907. It is sufficient to say of that complaint that an examination of the record discloses that the original information was filed on June 28, 1907; it also discloses beyond any question that the defendant was tried upon the amended information filed on July 30, 1907. The one filed on June 28, 1907, and the first amended information filed on July 301, 1907, were both quashed upon the motion of the defendant, whereupon a second amended information was filed on the 30th of July, which was the one upon which the record discloses the defendant was tried. As to the reference in instruction number 4 to the information of June 28, 1907, it was manifestly for the purpose of fixing a time as a basis in directing the jury as to the Statute of Limitations, that is, the original information was filed on June 28, 1907, and the jury were simply required to find that the offense was committed within three years next before the date of the filing of said original information.

IV.

The instructions of the court fully and fairly presented the case to the jury and were in such form as have heretofore in similar cases met the approval of this court. In fact we take it that it is practically conceded that there was no error in the instructions for the reason that learned counsel for appellant did not undertake to point out any error concerning them.

Y.

This brings us to the consideration of the earnest insistence of counsel for appellant that the information in this case is insufficient on the ground that it fails to allege that the defendant had been accorded the right of a preliminary examination. Counsel for appellant, with commendable frankness, concedes that that proposition at least to some extent was treated of in the case of State v. Jeffries, 210 Mo. 302, and Ex parte McLaughlin, 210 Mo. 657. In an exceedingly respectful way we are requested to reconsider this proposition, and in obedience to such request we have again given the subject very careful consideration and reviewed all of the authorities to which our attention has been directed. After a full and thorough consideration of this proposition we are unable to see any valid reason for departing from the conclusions indicated in the Jeffries and McLaughlin cases. While we shall not undertake to give expression to our reconsideration of this proposition, it by no means follows that we have not in a very careful way given the subject our most careful thought and attention; hence we must be content with simply repeating our conclusions in the former cases, which were substantially that the fact that the defendant had been accorded the right of a preliminary examination was not jurisdictional and need not be alleged in the information and any failure to accord the defendant the right of a preliminary examination as provided for by statute only went to the regularity of the proceedings which could be taken advantage of by calling the attention of the court to that fact by an appropriate motion and offering proof establishing the fact that he had not been accorded the right of a preliminary examination.

YL

We are now brought to the contention insisted upon by learned counsel for appellant that the court erred in overruling the motion to quash the information upon which the defendant was tried. The main ground of this contention is that the defendant was not accorded a preliminary examination prior to the filing of said information.

We have heretofore indicated our views upon the proposition as to the necessity of an allegation in the information that a preliminary examination had been accorded the defendant. We held that such allegation was not essential to the validity of the information; hence if the defendant was in fact not accorded a preliminary examination then the only proper method of preserving that question for review in this court was by offering the proof upon a timely motion to quash for that reason, or upon some other appropriate motion or plea in abatement, bringing the matter to the attention of the court. The mere filing of a motion to quash, or any other motion alleging the fact that the defendant was not accorded a preliminary examination, is not sufficient to preserve such question for consideration before this court. The mere allegation in the motion to quash or in any other appropriate motion alleging the failure to accord the defendant the preliminary examination does not prove itself. It was incumbent upon the defendant to establish the allegations contained in the motion that he was not accorded a preliminary examination. If the trial court refused to hear his proof then he could make an offer of the proof which would establish that fact and properly save his exceptions to the action of the court in refusing to hear the testimony upon that allegation, then under that state of the record the question would properly be before us for review. The record in this cause discloses the mere allegation in the motion to quash that, the defendant was not afforded a preliminary examination; it discloses no proof of such allegation or any offer to make proof of it, or any refusal on the part of the court to hear the proof offered by the defendant to establish the truth of such allegation. The motion for new trial fails even to make complaint of the action of the court in overruling the motion to quash the information. Under this state of the record the question as to whether or not the defendant was accorded a preliminary examination has not been properly preserved and this court would not be authorized to indulge the presumption that such fact existed. [State v. Hultz, 106 Mo. 41; State v. Grant, 144 Mo. l. c. 66; State v. Branan, 206 Mo. 636.]

vn.

We are now brought to the consideration of the testimony developed upon the trial of this cause and the law as declared by the court predicated upon such evidence. We have carefully read in detail the evidence as disclosed by the record, and we are unable to find any escape from the conclusion that the evidence was practically all one way in this cause, that is, that it pointed unerringly to the guilt of the defendant of the offense charged. The instructions of the court, which we have carefully considered, presented the law of this case fully and fairly to the jury.

Entertaining the views, to which we have herein given expression, résult in the conclusion that the judgment of the trial court should be affirmed, and it is so ordered.

All concur.