text:
    THE STATE v. ROBERT HANSON, Appellant.
    Division Two,
    May 23, 1911.
    1. LOCAL OPTION LAW: Title. The title to the Local Option Law, which refers only to “intoxicating liquors,” is in harmony with that section of' the Constitution which says that no hill shall contain more than one subject, which shall be clearly expressed in its title, and is broad enough to authorize a section in the act which prohibits the sale of any beverage containing alcohol, although not a sufficient percentage of alcohol to intoxicate those who drink it

      2. -: -: More Than One Subject. The Local Option Law does not contain more than one subject, namely, beverages which do intoxicate and beverages which do not intoxicate. The words “intoxicating liquor,” used in the title of the act, include all liquors which contain alcohol in any quantity, whether or not they intoxicate persons who drink them.
    3. ——: -: -: Cider. Under the Local Option Law it is unlawful for a restaurant keeper to sell hard cider containing five per cent of alcohol. Such cider, since it contains alcohol, is “intoxicating liquor” within the meaning of that act.
    Appeal from Ray Circuit Court. — Hon. F. H. Trimble, Judge.
    Affirmed.

      Elliott W. Major, Attorney-General, and Charles G. Revelle, Assistant Attorney-General, for the State.
    (1) Appellant challenged the validity of the Local Option Law in so far as it prohibits traffic in beverages which contain alcohol, or are fermented, but which are not, in point of fact, intoxicating. Since the case now under review was tried, this court has passed directly upon the identical questions presented by this record, and in an able and exhaustive opinion, covering every phase thereof, has ruled each contention adversely to this appellant. State v. Martin, 230 Mo. 1. (2) The validity of the Local Option Law in all other respects has been finally and conclusively settled. State ex rel. v. Pond, 93 Mo. 606; Ex parte Swan, 96 Mo. 44; State v. Watts, 111 Mo. 553; State v. Dugan, 110 Mo. 138; State v. Handler, 178 Mo. 38; State v. Harp, 210 Mo. 254; State v. Campbell, 214’ Mo. 362. (3) The agreed statement of facts, as well as other evidence introduced, showing that the hard cider which appellant sold was a fermented beverage containing at least five per cent of alcohol, completely established appellant’s guilt. State v. Martin, 230 Mo. 1.
   BROWN, J.

— Defendant was fined $300 in the circuit court of Ray county for selling intoxicating liquor in the city of Richmond in said county, in violation of the Local Option Law; and appeals to this court;

. The indictment charges defendant with selling “intoxicating liquor, to-wit, one pint of hard cider.” The documentary evidence introduced proves that the Local Option Law had been duly adopted in said city of Richmond prior to the alleged sale; while the sale itself is proven by an agreed statement of facts, which recites that defendant sold hard, fermented eider, containing as much as five per cent of alcohol; but there is no evidence that the defendant placed any alcohol or other intoxicant in the cider. He bought and sold it in his usual course of trade as the keeper of a restaurant.

Defendant has not favored us with a brief, but from his motion for a new trial we ascertain that he seeks a reversal of the judgment against him on the following grounds:

1. That the Local Option Law is in conflict with section 28 of article 4 of the Constitution of Missouri in so far as it attempts to prohibit the sale of beverages which do not contain a sufficient percentage of alcohol to intoxicate those who may drink same; because the title of the bill under which said law was enacted only refers to the sale of “intoxicating liquor. ’ ’

2. That if said Local Option Law be construed so as to embrace non-intoxicating beverages, then it violates the said 28th section of article 4 of the Constitution, because the bill creating said law contains more than one subject, to-wit, the sale of intoxicating beverages and also the sale of beverages which do not intoxicate.

OPINION.

I. Since the defendant was convicted in the court below, this court in a well considered opinion has held that the title of the bill creating the Local Option Law is in harmony with section 28 of article 4 of the Constitution, in so far as that section requires the subject of every law to be clearly expressed in the title of the bill by which it enacted. [State v. Martin, 230 Mo. 1.] Upon the authority of that case, we must overrule defendant’s first assault on the judgment of the trial court.

II. The further contention of defendant that the Local Option Law is in conflict with said section 28 of article 4 of our organic law, because the bill creating the said law contains more than one subject, to-wit, the sale of intoxicating beverages, and also the sale of beverages which do not intoxicate, is equally unsound.

If the words “intoxicating liquor,” as used in the title of the Local Option Law, should be so construed as to apply only to beverages which will intoxicate, then this assault on that law would be well founded; but we do not believe that the Legislature intended these words as so used to carry such a narrow meaning.

In ascertaining the intent of the lawmaker, it is always permissable and appropriate to consider the condition of the law prior to the passage of the act to be construed. [Dowdy v. Wamble, 110 Mo. 280; Keene v. Wyatt, 160 Mo. l. c. 16.]

Almost ever since the admission of our State into the Union, there have been attempts to regulate or partially prohibit the sale of beverages containing intoxicants, by restricting their sales to persons having a license to deal in the same. The construction of these dramshop statutes have been so often before the appeilate courts that we take judicial notice of the fact that a favorite method of avoiding them has been to sell beverages which appear to have no intoxicating properties, but which in fact, contain alcohol. The fact that some people would become intoxicated by the use of a very small quantity of alcoholic stimulants, while others could imbibe an indefinite quantity of the same beverage and remain sober, made’ it necssary to have some fixed rule for determining what were intoxicating liquors. Accordingly, as early as 1855 the following section was inserted in the dramshop law of our State: “Sec. 31. The term ‘intoxicating liquor,’ as used in this act, shall be construed to mean fermented, vinous and spirituous liquors, or any composition of which fermented, vinous or spirituous liquor is a part.” This section has been carried through all subsequent revisions of our statutes, and is now section 7222 Revised Statutes, 1900.

It will not- be denied that all fermented, vinous and spirituous liquors contain alcohol. Consequently, the words “intoxicating liquor,” as used in our dram-shop statutes for more than half a century have meant any beverage containing any percentage of alcohol, however small.

The Local Option Law deals with the same subject as the Dramshop Law, to-wit, the sale of beverages containing alcoholic stimulants; and was intended, wherever adopted, to suspend and supplant the Dram-shop Law. The words “intoxicating liquor” as they had stood in our statutes nearly half a century, having meant, and having been construed to embrace, all beverages containing alcohol in any quantity, it is perfectly clear to our minds that those words as used in the title to the Local Option Law were likewise intended to include every beverage composed in whole or in part of alcohol; hence we must overrule defendant’s second objection to the judgment.

Finding no reversible error in the record, the judgment of the trial court is affirmed-

Kennish, P. J., and Ferriss, J., concur.


source: Caselaw Access Project

author: KENNISH, P. J.

license: Public Domain

text:
    THE STATE v. MOSES MILLER, Appellant.
    Division Two,
    May 23, 1911.
    1. EVIDENCE: Conduct After Crime Committed. The conduct and admissions of the accused, after- the commission of the crime, tending to prove the charge, are always competent. So that testimony of the mayor that in June, in company with policemen, he went to the place in which gambling had been carried on in March or April preceding, for the purpose of making a raid; that they went into the saloon over which the gambling room was located, and demanded to go upstairs; that the defendant, who was in the saloon at the time, got the keys at the bar and took him upstairs and into the gambling room; that they found the room furnished and fitted up with gambling tables and devices, but with no person therein; that there was ice water in a tank, and the spittoons had the appearance of having been lately used; that he said to defendant, “you have been gambling üp here,” whereupon defendant laughed, but made no reply, is competent, in the trial of defendant of the offense of setting up and keeping a gaming table and gambing device — at least as a circumstance for the consideration of the jury.
    2. GAMBLING DEVICE: Proof. It is not sufficient to prove that a gaming table and gambling device was set up and kept; it must also be shown that it was set up, kept or maintained by defendant. Proof of the corpus delicti is not sufficient; it is also essential to prove defendant’s agency in the commission of the offense. So that though there is positive, direct and uncontradicted evidence that a gambling room and gaming tables and gambling devices therein were maintained, yet if it is not shown that the defendant exercised authority in the room, or gave any directions, or was in some manner connected with the saloon, or'was generally found in the saloon or gambling room, or that there was some circumstance in evidence tending to show his connection with the gambling room or tables, except that he was there at one time when crap games were being played and brought money to a man who needed it in a game, and who seemed to be in charge of the tables, there is no direct proof that he set up, kept or maintained the gaming table, and his convicion cannot stand.
    3. -: -: Suspicion. Where the testimony is of such unsubstantial character that it merely raises a strong suspicion of guilt, the Supreme Court will reverse the judgment and grant a new trial.

      4. TESTIMONY: Refreshing Memory: Examination of Memorandum. If the prosecuting attorney is permitted to refresh the memory of the State’s witnesses by calling their attention to written memoranda, for instance, the written notes of their testimony before the grand jury, then the defendant should be permitted to inspect such memoranda and to use the same in the cross-examination of the witnesses. Nor should the defendant be denied the right to cross-examiine the witness as to whether he testified to■ certain, facts from what he saw in the memorandum or from his memory of the facts as they occurred.
    5. REMARKS OF COUNSEL: Commenting on Defendant’s Failure to Testify: Gambling Device. Where defendant, testifying in his own behalf, upon a trial of the offense of setting up and keeping a gaming table and gambling device, was not called upon to explain to the jury what he was doing in the gambling room, nor to say whether or not he had any visible means of support, the prosecuting attorney, in his argument to the jury, should not comment on defendant’s failure to testify as to such matters.
    6. COMPETENCY OF TESTIMONY: Preliminary Inquiry. The defendant is not entitled to ask preliminary questions as to the competency of testimony of a State’s witness. That right only extends to the competency of the witness to testify.
    Appeal from Jasper Circuit Court. — Hon. Henry L. Bright, Judge.
    Reversed and remanded.

      R. M. Sheppard and Clay é Dmis for Appellant.
    (1) There was no competent evidence in this case sufficient to support a verdict of guilty. One accused of a crime should not be convicted on a mere suspicion, or even a strong probability, of guilt, but the evidence should be clear.and convincing, fully satisfying the minds and consciences of the jury; unless it is so, the accused should be acquitted. The presumption of innocence is not overcome by strong suspicion or conjecture; the law requires proof beyond a reasonable doubt. State v. Crabtree, 170 Mo. 642; State v. Lawrence, 178 Mo. 350; State v. Johnson, 209 Mo. 346. Where the evidence is circumstantial the facts and circumstances must, in order to warrant a conviction, be established beyond a reasonable doubt, and when so established must point so strongly to the guilt of the defendant as to exclude any other reasonable hypothesis. State v. Hunsack, 189 Mo. 295; State v. Moorey, 196 Mo. 43; State v. Francis, 199' Mo. 680. Where circumstances are relied upon, they must be such as to establish the defendant’s guilt beyond a reasonable doubt by facts and circumstances which are consistent with each other and with the defendant’s guilt, and inconsistent with any reasonable theory of his innocence. Therefore, a suspicion of guilt, or even a strong probability of guilt, is not sufficient to authorize a conviction. ’ State v. Faulkner, 175 Mo. 546; State v. Scott, 177 Mo. 665; State v. Crabtree, 170 Mo. 642. (2) The court committed error in permitting the prosecuting attorney to present to the witness Joseph the instrument which purported to be the evidence of the witness before tbe grand jury for the purpose of refreshing the witness’s memory and in refusing to let counsel for defendant cross-examine the witness as to whether he had any independent recollection as to what he saw defendant do, or whether his evidence was based entirely upon the instrument from which he refreshed his memory, and also in refusing to permit counsel for defendant to see the instrument from which witness was attempting to refresh his memory. Wigmore on Evidence, secs. 762, 764; Putnam v. United States, 162 U. S. 687; Maxwell v. Wilkinson, 113 U. S. 657; Walker v. State, 117 Ala. 42.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) If there was evidence to take the case to the jury, then this court will not interfere, as the weight of the evidence was for the consideration of the jury. It is only in case of the absence of substantial evidence to sustain the verdict that this court will interfere, and in the ease at bar there was substantial evidence of appellant’s guilt. The jury so found and the trial court approved the verdict. State v. Mathews, 202 Mo. 148; State v. Tetrick, 199 Mo. 104; State v. McKenzie, 177 Mo. 717. (2) The evidence of Humes was competent for the purpose of showing appellant’s connection with the room. The State was entitled to show any connection the appellant had with this room. State v. Marcks, 140 Mo. 656; State v. Goddard, 162 Mo. 198. (3) The prosecution undoubtedly had the right to refresh this, witness’s memory from the memoranda of his evidence taken before the grand jury, as the witness seemed to have failed in memory. 1 Greenleaf on Eiv., section 436.; Sandwell v. Sandwell, Comb. 445, Holt, 295; Nichol v. Webb, 8 Wheat, 326; Wood v. Cooper, 1 Car. & K. 645; Billingslea v. State,- 85 Ala. 323. It is not the memorandum that is competent, it is the memorandum that may be used to refresh the witness’s memory. Putnam v. United States, 162 U. S. 697; Hickory v. United States, 151 U. S. 303; Morrison v. Chapin, 97 Mass. 72; Ins. Co. .v. Evans, 15 Md. 54.
   KENNISH, P. J.

— At the April term, 1910; of the circuit court of Jasper county, appellant was convicted of the offense of setting up and keeping a gaming table and gambling device, commonly called a crap table, sentenced to imprisonment in the penitentiary for a term of two years, and appealed to this court. The prosecution was based on section 4750; Revised Statutes 1909.. The facts are fully stated in the opinion.

I. Appellant first assigns as error the insufficiency of the evidence to sustain the verdict and the refusal of the court to give an instruction in the nature of a demurrer to the evidence. This contention calls for a review of the testimony upon.which the jury found the defendant guilty.

That gambling was carried on openly and in flagrant violation of the law, at the time and place charged in the indictment and mentioned in the evidence, was clearly shown and, aside from the criminal agency of the defendant, every essential element of the offense charged was proven by undisputed evidence. The question that now demands our serious consideration is this: Wasi the testimony sufficient to warrant the jury in finding that the defendant set up and kept the gaming table, upon which the gambling was conducted as testified to by the witnesses'?

It is provided by section 4761, Revised Statutes 1909, that: “Every person appearing or acting as master or mistress, or having the care, use or management, for the time, of any prohibited gaming table, bank or device, shall be deemed a keeper thereof; and every person who shall appear or act as master or mistress,' or having the care, use or management of any house or building in which any gaming- table, bank or device is set up or kept, or of any gaming house, brothel or bawdy house, shall be deemed the keeper thereof.”

Did the testimony for the State bring the defendant within the charge in the indictment of setting ' up and keeping a gaming table, as defined in the statute upon which the prosecution was based, construed in connection with the foregoing section?

Four witnesses only testified on behalf of the State, namely, David Joseph, Frank Holburt, Guy Humes and W. 0. Porter. Porter was a deputy sheriff and his testimony was limited to proof of the inability of the officers to obtain service on another witness for the State whose name was indorsed on the indictment. So the determination of the question in hand depends on the testimony of the three witnesses first named. Witness Humes was mayor of the city of Joplin and his testimony did not relate directly to the time referred to in the indictment and by the other witnesses. He testified that about the first of June, 1909, in company with members of the police force, he went to the place in which gambling had been carried on in March or April preceding, as testified to by Joseph and Holburt, for the purpose of making a raid; that they went into the saloon over which the gambling room was located, and demanded to go up stairs; that the defendant, who was in the saloon at the time, got the keys at the bar and took the mayor up stairs and into the gambling room; that they found the room furnished and fitted up with gambling tables and devices, but with no person therein. There was ice water in the water tank, and the spittoons had the appearance of having been lately used. The mayor said to the defendant, “You have been gambling up here,” whereupon the latter laughed but made no reply.

This testimony was objected to by the defendant and its admission is now assigned as error. We think it was properly admitted upon the principle that the conduct and admissions of the accused, after the commission of the crime and tending to prove the charge, are always competent. It was at least a circumstance that was proper for the consideration of the jury. But when that is said it must be admitted that the testimony of this witness has very little probative force as tending to prove that the defendant, two months- before, set up and kept a gaming table as charged in the indictment.

The testimony of the witness Holburt very satisfactorily proved every element of the offense except that it in no manner connected the defendant with the setting up or keeping of the crap table on which the game was being played. He saw the defendant in the room, but did not see him taking part in the management of the table or acting differently from others who were in the room. Therefore, so far as it was necessary to connect the defendant with the setting up and keeping of the gaming table that was shown to have been operated, the case stands practically on the testimony of the witness Joseph.

Leaving ont of consideration the fact of the hostility of this witness to the State and the discredit unavoidably cast upon his character as a witness, we shall examine next his testimony upon the point under consideration. Testifying as to what occurred in the gambling room at the time of the offense charged, he was asked by the prosecuting attorney, “Was the defendant there or was he not there?” The witness answered, “I don’t remember.” Several times the same question, in varying language, was propounded to the witness and each time' the answer was that he did not remember. After the witness had answered, “I say I can’t remember it,” the prosecuting attorney stated: “We are entitled to that answer one way or the other and I insist on the witness answering it. This ‘I don’t remember’ has been carried too far in this case.” The witness was then shown the written notes of his testimony before the grand jury in June or July after the alleged offense and asked to examine the same and refresh his memory therefrom. After making the examination he was asked if he saw the defendant in the gambling room at the time mentioned. Pie answered “According to that statement I did,” and being asked the same question again said, ‘ ‘ According to that statement I did.” The prosecuting attorney then said, “I insist the witness answer the question,” and the witness answered, “Yes, sir.” Joseph further testified that when he saw the defendant the latter was in the room walking around,'and that part of the time he was around where the others were shooting craps; that a man named Billy was runing the crap table, and that no one else was assisting him, but that defendant brought money to Billy once when the latter needed it in the game.

The cross-examination and refreshing of the memory of the State’s witness, as thus conducted by the prosecuting attorney, was vigorously objected to by tbe defendant and exceptions were saved to the adverse rulings of tbe court. On cross-examination by tbe defendant tbe witness Joseph answered that the man named Billy exercised control over and had the management of the crap table, and that he could not have remembered that the defendant took the money to the table if he had not seen the notes of his testimony before the grand jury. "It was not shown that the defendant exercised any authority in the room, or gave any directions, or was in any manner connected with the saloon below, or even that he was generally found in the saloon or gambling room, nor were there any circumstances in evidence tending to show his connection with the gambling room or tables therein, except as above detailed.

From this review it appears that there was direct, positive and uncontradicted evidence of the corpus delicti of the offense — the setting up and keeping of the crap table at the time and place charged — but there was no direct evidence that the defendant set up, kept or maintained said table.

It was as essential to prove the defendant’s criminal agency in the commission of the offense as it was to prove the corpus delicti, i. e., that the crime was in fact committed. [State v. Crabtree, 170 Mo. 642; State v. Francis, 199 Mo. 671.] The only circumstance directly tending to prove the defendant’s participation in the commission of the offense was the fact that he carried some money from one table to another when it was needed at the latter table and this circumstance was not inconsistent with the defendant’s innocence. The case as it thus stands before us is this: That because the defendant was in the gambling room, walking around with fifteen or twenty others, and once, upon request, carried money from one table to another, each of which tables was under the charge of and being operated by a person other than the defendant, and because two months later, upon request, he obtained the keys to the gambling room from another and unlocked the door and admitted the mayor of the city to the gambling room where no person was' then present, the defendant was found guilty of the felony of having set up and kept a gambling table as charged in the indictment.

The jury, observing the behavior of the two witnesses for the State, who participated in the gambling at the time charged in the indictment, and observing their transparent efforts to conceal rather than to tell the truth, observing their resort to such subterfuges and evasions as to cause them to stand utterly discredited and unworthy of belief, even in the eyes of the party who placed them upon the witness stand, doubtless were influenced to some extent by such conduct as well as by the tangible evidence of guilt actually before them. But however much such conduct at the trial may arouse and confirm suspicions of guilt, it cannot be allowed to supply the place of testimony that directly tends to establish the guilt of the accused or testimony of facts and circumstances from which such guilt may be satisfactorily inferred. No principle of appellate procedure is better settled or more frequently invoked than that if there is substantial evidence of defendant’s guilt, the verdict will not be disturbed. On the other hand, where the testimony is of such unsubstantial character and tendency that it merely raises a strong suspicion of guilt, this court has not hesitated to reverse a judgment and grant a new trial for that reason alone. [State v. Crabtree, 170 Mo. 642; State v. Johnson, 209 Mo. 346; State v. Francis, 199 Mo. 671.]

After a thorough examination and re-examination of the record in this case we have become satisfied that the evidence is insufficient to support the verdict, and we so hold.

H. As the case will be retried it is suggested that if the prosecuting attorney again be permitted to refresh the memory of the State’s witnesses by calling their attention to a written memorandum, the defendant should be allowed to inspect such memorandum and to use the same in the cross-examination of such witnesses. [State v. Matthews, 88 Mo. 121; 1 Wigmore on Evidence, sec. 762.]

Neither should the defendant be denied the right to cross-examine as to whether he testified to certain facts from what he saw in the memorandum or from his memory of the facts as they occurred.

III. The defendant, testifying as a witness in his own behalf, was not called upon to explain to the jury what he was doing in the gambling room, nor to say whether or not he had any visible means of support, and the prosecuting attorney should not have commented, in his argument to the jury, on the defendant’s failure to testify upon such matters. [State v. Graves, 95 Mo. 510; State v. Guinn, 174 Mo. 680.]

IV. The court did not err in refusing to- allow the defendant to ask Guy Humes, a witness for the State, preliminary questions as to matters about which he was to testify. The defendant had the right to object to any question when it was asked by the prosecuting attorney and in that manner could amply protect his rights against the admission of incompetent testimony. The practice of permitting the opposite party to ask preliminary questions is well recognized where the purpose is to determine the competency of the witness, but, with a few exceptions, not to determine in advance the competency of the testimony. [1 Wigmore on Evidence, sec. 485.]

V. Complaint is made of the action of the court in refusing an instruction asked by the defendant, but as this instruction was based on a state of facts in evideuce that may not arise on a second trial, we deem it unnecessary to pass upon this complaint.

For the reasons stated the judgment is reversed and the cause remanded.

Ferriss, J., and Brown, J., concur.


text:
    THE STATE v. J. B. (DUDE) FINLEY, Appellant.
    Division Two,
    May 23, 1911.
    APPELLATE JURISDICTION: Misdemeanor: Constitutional Question: Motion to Quash. Where defendant was convicted of a misdemeanor, and the only way any constitutional question* was raised was by a motion to quash the indictment, and defendant in his motion for a new trial did not call the attention of the court to the alleged error in overruling his motion to quash, there remains no constitutional question in the case, and the Supreme Court has no jurisdiction of the appeal. A motion to quash is not a part of the record proper, and rulings thereon cannot be reviewed on appeal unless an assignment of them as error is made in the motion for a new trial.
    Appeal from Callaway Circuit Court. — Hon. N. D. Thurmond, Judge.
    Transferred to Kansas City Court of Appears.

      D. M. Herring and W. S. Pope for appellant.

      Elliott W. Major, Attorney-General, and Charles G. Bevelle, Assistant Attorney-General, for the State.
   KENNISH, P. J.

— Appellant was convicted in the circuit court of Callaway county of violating the Local-Option Law and appealed from the judgment rendered against him.

The Attorney-General has filed a motion to transfer the cause to the .Kansas City Court of Appeals, the grounds upon which said motion is based being that defendant was convicted of a misdemeanor, and did not, at any stage of the proceedings in the lower court, raise and preserve any constitutional question conferring upon this court appellate jurisdiction of the cause.

The record discloses that the only way in which any constitutional question was raised in the trial court was by a 'motion to quash the indictment. In his motion for a new trial the defendant did-not call the attention of the court to the alleged error in overruling the motion to quash.

A motion to quash an indictment or information is no part of the record proper and error of the court in overruling such motion must be preserved in the bill of exceptions. [State v. Coleman, 199 Mo. 112; State v. Finley, 193 Mo. 202; State v. Tooker, 188 Mo. 438.]

Error as to matters not appearing in the record proper, .unless called to the attention of the trial court in the motion for a new trial, in order that the court may have an opportunity to correct its alleged error, will be held to have been waived and will' not be considered on appeal. [State v. Grant, 194 Mo. 364; State v. Richardson, 194 Mo. 326; State v. Dilts, 191 Mo. 665.]

For the foregoing reasons and under the foregoing authorities we hold that this court has no jurisdiction of this appeal because no constitutional objection was properly raised and preserved for review in the trial court.

We have not overlooked the case of State v. Cowan, 146 Mo. App. 621. That case was transferred to this court because a constitutional question was raised in the trial court by a motion to quash. But the defendant, in his motion for a new trial, assigned as error the overruling of the motion to quash, thereby preserving for review the action of the court in overruling the motion to quash.

There being no constitutional question before the court on this appeal, the cause should be transferred to the Kansas City Court of Appeals for determination. It is so ordered.

Ferriss, J., and Brown, J., concur.


author: BBOWN, J.

text:
    THE STATE v. THOMAS COX, Appellant.
    Division Two,
    May 23, 1911.
    1. REFERENCE STATUTES: Title: Primary Election Law: Penalties. It is not necessary that the title to an election law should refer to the penalties it imposes for its violation. The Legislature necessarily intended, by the enactment of a law relating to elections or party nominations, to prescribe penalties for its violation. Neither the fact that the Primary Election Law in its title does not refer to penalties for its violation, nor the fact that in its. body it adopts the penalties prescribed . by the general election laws without referring to such laws in the title, renders the act unconstitutional.
    2. -: Commendable. Reference statutes are commendable. They tend to prevent an unnecessary increase in the volume of statutory law.
    3. -: —-: Obstructing Officer. Sec. 4363, R. S. 1909, prohibiting the obstruction of officers in the discharge of their, official duties, is applicable to an officer attempting to enforce the Primary Election Law, notwithstanding it is not referred to either in the title or body of that law.
    4. -: -: -: Subsequent Enactment. Nor does the fact that the Primary Election Law is a subsequent enactment render section 4363 inapplicable to violations of that law. "Where the crime for which defendant is being tried was committed after the enactment of the Primary Election Law and in violation thereof, it does not give any retrospective effect - to that law to permit the offender to be punished under the statute previously enacted and" adopted by the Primary Election Law as a part thereof.
    Appeal from St. Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge.
    Appirmed.

      Henry M. Walsh for appellant.
    The act known as “An act to provide for party nominations by direct vote,” Laws 1907, p. 263, does not contain in its caption or title any reference to any penalties which, are suggested by the State as being fixed in the body of the act. There does not appear anywhere in the caption even the remotest suggestion of any punishment to he inflicted upon anyone for the doing or failure to do anything and it is on account of the failure of the title of the act to in any way indicate that it is the intention to place somewhere in the body of the act penalties for the failure to do or the doing of something, that'the trial court improperly permitted the case to go to the jury, if in fact it was not a mistake to entertain the indictment at all. Sec. 28, art. 4, Constitution of -Missouri; State ex rel. v. Heege, 135 Mo. 118; State ex rel. v. Baker, 129 Mo. 485; State ex rel. v. Jackson County Court, 120' Mo. 537; State ex rel. v. Lafayette County Court, 41 Mo. 41; Railroad v. Potts, 7 Ind. 685; Gillespie v. State, 9 Ind. 383; State v. Young, 47 Ind. 151; Sanderson v. Kronke, 109 La. 838; State v. Courtney, 27 Mont." 378; Railroad v. Gentry, 43 Tex. Civ. App. 299; State v. Superior Court, 42 Wash. 491; Shields v. Bennett, 8 W. Va. 74; State-v. Bengsch, 170 Mo. 81; State ex rel. v. Dirck, 211 Mo. 582.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
    Section 4442, R. S. 1909; is applicable to primary eléctions. State ex. rel. w. Taylor, 220 Mo. 628. The section mentioned was incorporated in the primary law by the reference to it therein. State v. Hunter, 69 Ark. 548. Generally “reference acts” deal with “rules of construction or modes of procedure for carrying out their provisions.” 26 Am. and Eng. Emey. Law, 711; 36 Cyc. 969, 970. The authority and duty of Officer Tomasso to arrest “John Doe” without a warrant clearly appears from the allegations of the indictment. R. S. 1909, secs. 9805’ and 9825; State v. Boyd, 196 Mo. 60; State v. Albright, 144 Mo. 649; State v. Spaugh, 200 Mo. 596.
   BBOWN, J.

— Defendant was found guilty of obstructing a police officer in the discharge of his offi■ciay duty, as-prohibited by Section 4363, Bevised Statutes 1909. From a judgment of the circuit court fixing his punishment at a fine of $100 and three months ’ imprisonment in jail, defendant appeals to this court.

The evidence on the part of the State is to the effect that at the primary election held in St. Louis on August 4, 1908, the defendant and several other parties went into the polling place in precinct 4 of ward 3 of that city. One of defendant’s associates called for a ballot in the name of Patrick Grace, a well known citizen of that precinct; but the election officers, knowing that the party thus offering to vote was not Patrick Grace, refused to hand him a ballot; whereupon police officer Anton Tomasso, who was present in the polling place, immediately arrested the party and started with him to the police station, intending to prefer against him a charge of feloniously attempting to vote in a name not his own. When Officer _ Tomas so had led his prisoner about a block, defendant Cox, who was following them, ran against Tomasso with such force as to knock him down and cause him to release his hold upon the prisoner, who immediately escaped. Officer Tomasso then shot the defendant in the leg and arrested him for causing the escape of the prisoner.

OPINION.

The evidence on the part of the defendant was to the effect that defendant did not touch or interfere with police officer Tomasso in any manner, and that said officer had no cause to shoot or arrest him. There was such a sharp conflict between the evidence for the State and that offered by defendant as to indicate deliberate perjury on the part of one side or the other; but it was the special province of the jury, who saw the witnesses and observed their demeanor on the stand, to weigh such conflicting evidence; and we are ■not called npon to review it.

Defendant asserts that sections 31 and 32 of the Act of 1907 (Laws 1907, p. 269), purporting to make the provisions and penalties prescribed by the. general election laws applicable to primary elections, is unconstitutional, because the title of the primary law does not refer to any other law or any penalties, and therefore does not conform to section 28 of article 4 of our State Constitution, which provides that a legislative bill shall contain but one subject, which must be clearly expressed in its title. In effect, defendant’s first ground for reversal is that on the 4th of August, 1908, there was no valid law in force to punish violations of the primary election law.

Defendant further insists that section 4363, Revised Statutes 1909, prohibiting the obstruction of officers in the discharge of their official duties, can not apply to an officer seeking to enforce the primary election law, because such primary election law was enacted subsequently to said section 4363, and because said section 4363 is not referred to-either in the title to or body of the primary law.

It is true the title to the primary election law does not recite .that penalties are prescribed for the violation of its provisions. It is not necessary that the title of said act should refer to such penalties. The creation of penalties for violation of a law is but an incident or detail of the law, and need not be referred to in its title.

The jurisprudence of our State is replete with cases involving the violation of laws affecting the right of suffrage; and it is preposterous to assume that a Legislature in the year A. D. 1907, intended to enact a law relating either to elections or to nomination of candidates for public offices without prescribing severe penalties for its violation. The fact that the primary election law adopts the penalties prescribed by the general election law does not render it unconstitutional. The title of the primary election law, to-wit, “An act to provide for party nominations by direct vote, ’ ’ was broad enough to authorize the insertion in such primary law itself of penalties for its violation; and this being true, it was perfectly competent to create such penalties by referring to another law in which such penalties were set out in detail. This doctrine finds support in the following cases: State ex rel. v. Mercantile Company, 184 Mo. l. c. 183; State v. Hamlett, 212 Mo. 80; Republic Iron and Steel Company v. State, 160 Ind. 379; State v. Peyton, decided at this term, and officially reported at page 517 of this volume; Lewis’s Sutherland’s Statutory Construction (2 Ed.), sec. 447. Reference statutes of this character are not only valid but commendable. They not only tend to prevent an increase of the volume of statute law, which is always large enough to be confusing; but the laws adopted by reference statutes have usually been construed' by the courts; and are more easily understood by the people than a new enactment. Hence, we must overrule defendant’s first objection to the validity of the primary election law.

Defendant’s second assault on the judgment of the circuit court is equally untenable. In making the penalty clauses of the general election law applicable to primary elections the Legislature is presumed to have known of all existing criminal laws in this State, including section 4363, Revised Statutes 1900, making it a felony to interfere with a ministerial officer while discharging his official duties in a felony case. [Sikes v. Railroad, 127 Mo. App. 335; Lewis’s Sutherland’s Statutory Construction (2 Ed.), sec. 447.]

In adding a new criminal law to the statutes by creating penalties for violating the primary election law, it is apparent that the Legislature intended that it should be enforced by- arrest and trial in the same form as other criminal laws then in existence; and that section 4363, supra, should be invoked in protecting those officers whose duty it is to arrest parties for violating the primary election law. Section 4363, while creating a separate offense (that of obstructing a ministerial officer in the discharge of his official duty), is but a part of the great body of our criminal law, and is intended to protect from violence and obstruction officers while engaged in the discharge of their duties. The primary election law makes no special provisions for its enforcement, hence the courts will assume that the aforesaid' section in regard to obstructing officers was meant to apply arrests for its violation. To rule otherwise would be equivalent to saying that every time a new criminal statute is enacted, before it could be enforced, the whole body of. the criminal procedure must be amended or re-enacted; otherwise it would not apply to such new law. We are of opinion that in enacting section 4363, supra, it was intended by the General Assembly that it should apply to all future arrests and prosecutions, whether for violation of laws thereafter enacted or statutes then in existence. Such a construction does not give any retroactive effect to the Primary Election Law, because the crime for which defendant was convicted was committed after the Primary Election Law was enacted. [Humphries v. Davis, 100 Ind. 274; 36 Cyc. 1146.]

Finding no reversible error in the record, the judgment of the trial court is affirmed.

Kennish, P. J., and Ferriss, J., concur-


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    THE STATE v. VANCE McMAHON, Appellant.
    Division Two,
    May 23, 1911.
    1. CRIMINAL STATUTES: Strictly Construed. Criminal and penal statutes are strictly construed in favor of the defendant and against the State, hoth as to the charge and the proof.
    2. CARNAL KNOWLEDGE: Previous Chaste Character: Limitations. It is incumbent on the State, in a carnal knowledge case, to prove, in addition to the other elements of the offense charged, that the prosecutrix was of previous chaste character, and that the crime was committed within three years prior to the filing of the information.
    3. -: Previous Chaste Character: After First Act: Repeated Thereafter. The offense of seduction or of carnal knowledge of a female of previous chaste character is complete when the first act of sexual intercourse is committed; and if thereafter the act is repeated between the same parties, the female cannot be considered of previous chaste character as to 'the subsequent acts for the purpose of bringing the case within the Statute of Limitations. To do that, the prosecution must be begun within three years after her first act of sexual intercourse with defendant.
    4. -; -: -: -: Limitations: This Case. The information, charging defendant with having carnal knowledge of an unmarried female, of previous chaste character, between the ages of fourteen and eighteen years, was filed on Febru-' ary 4, 1909. The uncontradicted testimony is that he began having sexual intercourse with her in 1904, and- that the illicit intercourse with her continued for three years, “whenever he ' got a chance,” or until 1907, when she left his home, in which she had been doing the household work for her board, clothes and schooling. Held, that she was not a person of previous chaste character within three years next before the filing of the information, and hence the offense was barred by the Statute of Limitations.
    Appeal from Jackson Criminal Court. — Son. Ralph S. Latshaiu, Judge.
    Reversed.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
    The fact that the illicit relations between appellant and the prosecuting witness continued more than three years prior to the filing’ of the information does not affect the case. These relations continued, at least, until the latter part of 1906, about two years before the information was filed. It would be abhorrent to every sense of justice to say that appellant’s crime in debauching the girl more thau three years before his guilt' was disclosed by her would protect him from punishment for acts committed within the period of limitation. This case is not within the rule laid down in People v. Nelson, 153 N. Y. 92, since the elements of the offense under the New York statute there considered were (1) seduction, (2) under promise of marriage of (3) an unmarried female of previous chaste character, (5) between sixteen and eighteen. Our statutes punish the mere carnal knowledge of an (1) unmarried female, (2) of previous chaste character, (3) between fourteen .and eighteen. Some observations partly in point are found in People v. Millspaugh, 11 Mich. 2801 The above cases and that of Hatton v. State, 92 Miss. 653, are based upon the proposition that “there can never be but one seduction.” But seduction is not an element of the offense denounced by our statute. The sole question presented on this phase of the case at bar is whether the previous acts of intercourse with appellant, more than three years before the information was filed, so destroyed Mary Nave’s “previous chaste character” as to protect appellant from prosecution for subsequent illicit intercourse with her within the three-year period. In other words, can he shield himself behind the fact that he himself had debauched the girl more than three years before the information was filed, despite the fact that he continued having intercourse with her until within three years. We find no cases in point on a. statute like ours. Perhaps the solution of this question can be found in State v. Sassaman, 214 Mo. 722, or in City of Pilot Grove v. McCormick, 56' Mo. App1. 533.
   KENNISH, P. J.

— On the 9th day of February, 1909, the prosecuting attorney of Jackson county filed an information in the criminal court of said county, charging appellant with carnally knowing and abusing Mary Nave, an unmarried female of previously chaste character, between the ages of fourteen and eighteen years, to-wit, of the age of sixteen years. At the same term of said court appellant was tried, convicted of the offense charged, and his punishment assessed at a fine of three hundred dollars' and imprisonment in the county jail for six months. An appeal was. taken to the Kansas City Court of Appeals, but as that court has no jurisdiction in felony cases the cause was transferred to this court.

Appellant is not represented by counsel in this court, but we have carefully read the entire record and from it have gleaned the following facts, which are determinative of the cause.

The prosecutrix, Mary Nave, was born on September 24, 18901. In the month of September, 1904, her father being unable to support her, she went to the home of the defendant to live. The defendant’s wife was an invalid. The prosecutrix agreed to do the household work, in consideration for which appellant promised to board and clothe her and send her to school.

The prosecutrix testified that she went to the defendant’s home on September 17, 1904; that within a day or two thereafter the defendant began to make improper advances and within a week after she went to his house had carnal knowledge of her. That thereafter he continued to have intercourse with her “whenever he got a chance” until she left his home in 1907. The information was filed on February 9, 1909.

It is a well established rule of criminal procedure that criminal and penal statutes are strictly construed in favor of the defendant and against the State, both as to the charge and the proof. [Manz v. Railway Company, 8 Mo. 278; State v. McCance, 110 Mo. 398; State v. Schuchmann, 138 Mo. 111; State v. Howard, 137 Mo. 289.]

In this case it was incumbent on the State to prove, in addition to the other elements of the offense charged, the averment that the prosecutrix was of previous chaste character and that the crime was committed within three years prior to the filing of the information. [Secs. 4472 and 4945, R. S. 1909.]

The offense of seduction or of carnal knowledge of a female of previous chaste character is complete when the first act of sexual intercourse is committed, and if thereafter the act is repeated between the same parties the female cannot be considered of previous chaste character as to the subsequent acts for the purpose of bringing the case within the Statute of Limitations. [People v. Nelson, 153 N. Y. 90; People v. Millspaugh, 11 Mich. 278; 12 Cyc. 255, 256.]

It is shown by the uncontradicted testimony of the prosecutrix in this case that the defendant began having sexual intercourse with her in 1904, more than four years before the date of the filing of the information, and that the illicit relations continued for more than three years. From these facts and the law applicable thereto it follows that the prosecutrix was not a person of previous chaste character within three years next before the filing of the information and hence the offense was barred by the Statute of Limitations.

For the reasons' stated the conviction cannot be sustained and therefore the judgment is reversed.

Ferriss, J., and Brown, J., concur.


text:
    THE STATE v. CARLOS FIELDS, Appellant.
    Division Two,
    May 23, 1911.
    1. JUROR: General Challenge. A challenge of a juror,“We challenge the juror for cause,” is not sufficient. The specific ground cf the challenge must be stated.
    2. -: Challenge Not Assigned in Motion. Where no objection to the qualification of jurors is preserved in the motion for a new trial, the question of their qualification is not for review on appeal.
    3. CONSPIRACY: Evidence: Direct Proof. The law does not require direct and positive evidence of the existence of a conspiracy or common purpose between the defendants and the alleged co-conspirator to commit the crime charged, and which was actually committed by said co-conspirator. It is sufficient if the conspiracy can be inferred from the facts and circumstances in evidence.
    .4. -: -: Order of Proof. And the order of proof of a ■conspiracy must be left largely to the discretion of the trial judge. Testimony of the acts and declarations of the co-conspirator it not incompetent as against defendant because, at the time it is offered, a sufficient foundation' showing defendant’s connection with the conspiracy has not been laid.
    5. -: -: Sufficient Proof. Defendant and his brother Ray were jointly charged with murder, and a severance was granted. “Watch” services were held at the various negro churches of the town in the first part of the night of December 31st. On that evening defendant, who was a porter in a saloon, asked permission to take a revolver from the saloon, but was refused. Later he and two others went to the “watch party” at the Baptist church, where Ray arrived about the same time. Ill-will existed between Ray and deceased because they were rival suitors of a colored girl. Defendant asked one of the men who had accompanied him to the Baptist church to go with him and Ray to the Methodist church, a block away, remarking, “Hell’s going on there.” Shortly before that deceased had gone to the Methodist church,- with the girl; and on the way there, defendant and Ray were heard to mention the name of the girl, and to say that deceased was “sore” at Ray on her account. They went into the Methodist church together, Ray going down the aisle towards deceased, and defendant going down the aisle on the opposite side towards the stove, and remarking to a small boy to “get up and go home; there’s going to be some shooting take place directly.” He was then seen “edging” his way along the wall towards the door, with a pistol in his hand, and his eyes upon deceased, who was standing a few feet away at a refreshment stand. A woman exclaimed defendant had a gun, and almost immediately Ray shot deceased, hilling him instantly. Deceased had made no demonstration of hostility to either brother. They left the building, and in a short time defendant returned, walked to where the corpse lay, flourished a revolver, and with oaths dared the bystanders to say anything .about what he had done. He then went out and hid the revolver, and the next day, by written order, directed a witness to get it and return it to the saloon, and say nothing about it. It was the same revolver he had been refused the evening before. Bald, these facts and circumstances tended to prove the conspiracy, and furnished a sufficient basis for the introduction of evidence in the separate trial of defendant, of what was said and done by Ray prior to the homicide.
    6. -: Instruction. And this evidence authorized an instruction on the theory that defendant aided, incited or abetted Ray in killing deceased.
    7. -: Murder in Second Degree: Demurrer. And it authorized a verdict finding defendant guilty of murder in the second degree, and the court did not err in refusing his demurrer to the evidence.
    8. -: Evidence Showing First Degree Murder: Conviction of Murder in Second Degree. Where there is evidence tending to prove murder in the first degree, an instruction authorizing a verdict for murder in the second degree is not error, even though defendant is convicted of murder in the second degree, and as a c-o-conspirator of the man who fired the fatal shot.
    9. REMARKS OF COUNSEL: Defendant as Witness. In his closing argument to the jury the prosecuting attorney said: “The State has proved certain facts; has'brought a large number of witnesses before you whose testimony has not been controverted by the defendant’s witnesses.” Beld, that these words are not open to the construction that they were a comment on the failure of the defendant to testify, but were within the bounds of legitimate argument.
    10. -: -: Remarks of Court. And where the counsel for the defendant objected to these remarks, '“for tho reason the defendant is not obliged to take the stand,” an admonition, thereupon, by the court to the prosecuting attorney that he had no right to comment on the fact that the defendant did not take the stand, was a reference to the fact that defendant had not testified, but did not constitute error, and if it did it was committed at the instance of defendant, and therefore not reversible error.

      11. WEIGHT OF EVIDENCE: For Jury. When the testimony tends to prove the offense charged, it is the province of the jury, and not of the court to pass upon its probative weight.
    Appeal from Pemiscot Circuit. Court. — So A. Henry C. Riley, Judge.
    Affirmed.

      Ward <& Collins for appellant.
    (1) Some cases go to the extent of holding that it is permissible for the State to prove declarations and acts of one of the parties made and done in the absence of others, before proving the conspiracy, but the conspiracy must be afterwards proved and the declarations and acts of the co-conspirator must be about and concerning the offense for which defendant is being tried.' State v. Eoss, 29 Mo. 32; State v. Nell, 79 Mo. App. 243; State v. Walker, 98 Mo. 95; State v. Flanders, 118 Mo. 227; State v. Duncan, 64 Mo. 262. But it is far better practice (as recently held by this court) that, in order that the acts and declarations of one conspirator may be admissible in evidence against his co-conspirator, it first be made to appear that a conspiracy existed and that such acts and declarations were in furtherance of the common design. State v. Daubert, 42 Mo. 239; State v. Eoss, 29 Mo. 32; State v. Duncan, 64 Mo. 262; State v. Walker, 98 Mo. 95; State v. Boatright, 182 Mo. 32; State v. Eoberts, 201 Mo. 727. Over the objections of defendant, the court permitted the State to prove what defendant’s: co-indictee, Eay Fields, said about a negro woman by the name of Corrine Branham, and this was the only statement proved by the State spoken by the said Eay Fields before the killing. This statement or declaration of Eay Fields, not being about the crime, was wholly inadmissible against the defendant. State v. Eoss, 29 Mo. 32; State v. Nell, 79 M. App'. 243; State v. Walker, 98 Mo. 96; State v. Duncan, 64 Mo. 262; State v. Flanders, 118 Mo. 226; State v. Kennedy, 177 Mo. 98. The statements and declarations of Ray Fields made by him after the hilling, and not even in the presence of defendant, were wholly inadmissible. State v. Reed, 85 Mo. 145; State v. Ross, 29 Mo. 32; State v. Duncan, 64 Mo. 262; State v. Barham, 82 Mo. 67; State v. Mc-Graw, 87 Mo. 161; State v. Beancleigh, 92 Mo. 490; State v. Hickman, 75 Mo. 416; State v.’Melrose, 98 Mo. 594; State v. Hilderbrand, 105 Mo. 348; State v. Min-ton, 116 Mo. 605; State v. Harris, 150 Mo.- 56; State v. Greeman, 164 Mo. 487; State v. Kennedy, 177 Mo. 98. It will not do to say that any of the testimony in this case, concerning the statement and acts of Ray Fields made after the commission of the homicidal act, although not admissible, were immaterial and did not injure the defendant, because if there was any evidence at all against the defendant, such statements did not injure him. The State was permitted to prove over the objections and exceptions of the defendant, that Ray Fields after the shooting, ran out the north door of the house. This testimony of course, concerning the act of the defendant’s brother, was by the jury charged up to the defendant, and under the rulings of the trial court, really amounted to fright and confession of guilt on the part of defendant, since all the testimony against defendant was the acts and doing of defendant’s brother. Again, over the objections and exceptions of the defendant, a State’s witness was permitted to testify that after Ray Fields, defendant’s brother and co-indictee, shot Sam Edmondson, he ran to the door and said, “Let me out.” This testimony of course was charged up by the jury to the defendant. State v; Jaeger, 66 Mo. 180.

      Elliott W. Major, Attorney-General and' James T. Blair, Assistant Attorney-General, for the State.
    (1) Everything done and said by the parties, during the time of the existence of the conspiracy is competent whether said in the presence of the other party or not. State v. Darling, 199 Mo. 201; State v. Cope-man, 186 Mo. 120; State v. Roberts, 201 Mo. 728. (2) It was not necessary to prove the conspiracy before offering the declarations. State v. Miller, 191 Mo. 608.; State v. Walker, 98 Mo. 104; State v. Flanders 118 Mo. 235. (3) Nor was it necessary to prove the conspiracy by showing an express agreement between Ray Fields and appellant to kill Edmonson. It may even be “ deduced from the attending circumstances connected with the transaction.” State v. Walker, 98 Mo. 104; State v. Darling, 199 Mo. 199; State v. Ilanders, 118 Mo. 235. (4) The proof of conspiracy in this case while mainly circumstantial, was full and complete when measured by the standard set by the laAV in this State. State v. Sykes, 191 Mo. 84; State v. Miller, 191 Mo. 611; State v. Darling, 199 Mo. 190'; State v. Walker, 98 Mo. 104. (5) The e\ddence that Ray Fields, immediately after shooting deceased, ran out of the church in which the killing o.ccured, was competent. Musser v. State, 157 Ind. 453; State v. Sykes, 191 Mo. 79. This, the record shows, occurred in the presence of defendant. It was clearly admissible. Further the objection was- not that -the conspiracy had ended, but was based merely on an assumption that no conspiracy had been proved. This ground cannot now be amplified. State v. West, 95 Mo. 149. (6) The exclamation of Ray Fields immediately after he had, in appellant’s presence, shot deceased, was competent.' The appellant was still standing in the room Avith drawn weapon in his hand. This was part of the res gestae. State v. Forshee, 199 Mo. 145; State v. Flanders, 118 Mo. 236. (7) As to Ray Fields’s remarks concerning Corinne Branham, they were made during a conversation between him and appellant. There was no objection made to them as testified to by the witness Nelson. Appellant’s counsel cross-examined Nelson on the subject. State v. Forshee, 199 Mo. 145. The statement of Ray Fields to Josie Harkey concerning this same woman, made apparently “just before the shooting” and seemingly after his conversation with appellant about the woman, was competent as indicative of the motive which inspired the conspiracy proved to have been in existence at the time. State v. Darling, 199' Mo. 201; State v. Miller, 191 Mo. 608; State v. Forshee, 199 Mo. 145.
   KENNISH, P. J.

On January 14th, 1909; an information was filed in the office of the clerk of the circuit court of Pemiscot county, charging appellant Carlos Fields, and his brother, Ray Fields, jointly, with the crime of murder in the first degree, for having killed one Sam Edmonson. A severance having been granted to appellant, he was tried, convicted of murder in the second degree, and his punishment assessed at imprisonment in the penitentiary for thirty-five years. Pie appealed to this court.

The evidence for the State tended to show the following facts:

Ray Fields and Carlos Fields are negroes, as was also the deceased. On the evening of December 31, 1908, a “watch party” was held at negro churches in Caruthersville, one known as the Baptist church and the other as the African Methodist church. On the evening of the homicide the defendant, Carlos Fields, who was a porter in a saloon, asked permission to take a revolver from the saloon, but was refused permission to take it. Later in the evening he and two others went to the “watch party” at the Baptist church. Ray Fields arrived at the Baptist church about the same time. A few minutes later the defendant asked one of the men who accompanied him to the church to go with them, Bay and Carlos Fields, to the Methodist chnrch, remarking, “Hell’s going on there.” The witness declined to go, and defendant, Bay Fields and another man started to the Methodist church. On the way there was some conversation about a girl named Corrine Branham and about Sam Edmonson, the deceased, being “sore'” at Bay Fields on account of Corrine. The three entered the church at about the same time as the deceased. Defendant walked down to the stove and remarked to a small boy that he had better get out of the house as there was going to be trouble there. After making this remark, he was seen “edging” his way along the wall toward the door with a revolver in his hand, and his eyes upon the deceased, who was standing a few feet away at a refreshment booth. A woman who saw the revolver called attention to defendant and exclaimed that he had a gun. At almost the same instant Bay Fields shot the deceased, instantly killing him. ' The deceased had made no demonstration of hostility to either of the brothers. The two left the building and in a short time the defendant returned, walked to where the dead man lay and brandishing a revolver, inquired with oaths, “Who don’t like it?” “What’s the matter with you?” “Who has anything to do with it ? ”. The defendant then left the church again. Early the next morning he told one- of the witnesses where he had thrown the revolver, asked him to go and find it, return it to the saloon and say nothing about it. The witness found the revolver and upon a written order from the defendant delivered it to the bartender at the saloon where the defendant was employed. The revolver had been left at the saloon as a pledge for a debt and was the same revolver the defendant had asked the bartender for the night of the homicide when he was told he could not have it,

The defendant did not go upon the stand and but one witness testified in his behalf. Portions of the testimony given at the preliminary examination before the justice of the peace, tending to contradict the testimony given at the trial by the State’s witnesses, were introduced and read in evidence by the defendant.

I. Error is assigned to the action of the court in overruling the defendant’s challenge to jurors. Little, Stevens and Ellison on their voir dire examination.

The record fails to show that either of these jurors was. not qualified to serve, and in addition it is disclosed that as to jurors Stevens and Ellison no,objection to their qualification is preserved in the motion for a new trial. For that reason the question is not now before the court for review. As to juror Little the defendant’s challenge was as follows: “We challenge the jurors for cause.” It has been decided by this court that a general challenge for cause,- such as made to juror Little, is not sufficient. The specific ground of the challenge must be stated in order that the trial court may have its attention called to the reason for which it is asked to disqualify the juror. [State v. Bobbitt, 215 Mo. 10; State v. Taylor, 134 Mo. 109; State v. Meyers, 198 Mo. 225.]

II. Many objections were interposed by the defendant to the testimony of the witnesses for the State and exceptions were duly saved to the adverse rulings of the court thereon. The testimony thus objected' to was largely as to evidence which was clearly admissible or so unimportant in its character that its admission could not be held prejudicial. We cannot discuss the ruling of the court as to each of these numerous objections, but we have examined them and are satisfied that the defendant had no substantial ground of complaint.

The objection most strenuously made by the defendant and insisted upon throughout the introduction 1 of the testimony for the State was that no proper foundation had been laid, showing the existence of a conspiracy between the defendant and Ray Fields to commit the offence charged, so as to render admissible in evidence against defendant the acts and declarations of Ray Fields who shot and killed the deceased.

It is a principle of law in criminal procedure that the order of proof of a conspiracy, with reference to the introduction in evidence of the acts and declarations of the • alleged co-conspirator, must be left largely to the discretion of the trial judge. [State v. Miller, 191 Mo. 587; State v. Walker, 98 Mo. 95 ; State v. Daubert, 42 Mo. 239; State v. Ross, 29 Mo. 32.]

To entitle the State to introduce in evidence against the person on trial the acts and declarations of another relative to the offence charged, it is essential that the existence of a conspiracy or common purpose between the defendant and the alleged co-conspirator to commit the crime charged be shown, but the law does not require direct and positive evidence of such conspiracy. It is sufficient if it may be inferred from the facts and circumstances in evidence. [State v. Roberts, 201 Mo. 702; State v. Darling, 199 Mo. 168; State v. Sykes, 191 Mo. 62.]

To establish the existence of a conspiracy in this case it was shown by the State that the defendant made an effort to borrow a revolver on the evening of the homicide. Although his request was denied he evidently took the revolver without permission, as he had it on his person at the time the deceased was shot. Ill-will existed between the deceased and the defendant’s brother because of their being rival suitors of Corrine Branham, a colored girl. Shortly before the homicide the deceased had left one of the two churches where the colored' people of that town were assembled to watch the old year out and the new year in, in the company of this girl, but shortly thereafter returned to the church. The churches were about a block apart. The defendant and his brother were at the Baptist church and the defendant asked another col- ■ ored man to go to the Methodist church with them, saying that “hell’s going on there.” On the way to the Methodist church the defendant and his brother were heard to mention the name of the colored girl, Oorrine Branham. They went into the Methodist church together, Ray Fields going toward deceased and the defendant going down the aisle on the opposite side of the church. The defendant said to a negro boj^ who was in the church: “Get up and go home; there’s going to be some shooting take place directly.” The defendant was seen with a pistol in his hand moving along the wall toward the door and looking in the direction where his brother and the deceased were standing when his brother fired the fatal shot. Immediately after the shooting the defendant went out with his brother, but soon returned and going up to the corpse flourished the revolver, and dared the by-standers to say anything about what had been done. He then went out and hid or threw away the revolver, which was afterwards found and returned to the owner under the defendant’s directions..

In our opinion these facts and circumstances tended to prove the conspiracy and furnish a sufficient basis fox the introduction in evidence against the defendant of what was said and done by Ray Fields leading up to the homicide.

III. Complaint is made of the instructions because (1) the evidence did not warrant an instruction on murder in the second degree, and (2) there was no evidence authorizing an instruction on the theory that the defendant aided, incited or abetted Ray Fields in killing the deceased.

There was clearly evidence tending to prove murder in the first degree and we need not stop to inquire whether it also tended to prove murder in the second degree, for it is provided "by section 4903, Revised Statutes 1909, that “any person found guilty of murder in the second degree, or of any degree of manslaughter, shall be punished according to the verdict of the jury, although the evidence in the case shows him to- be guilty of a higher degree of homicide.” And it is provided by section 5115' that no judgment shall be affected “because the evidence shows or tends to show him to be guilty of a hig'her degree of the offence than that of which he is convicted.” [State v. Todd, 194 Mo. 377.]

The complaint that error was committed by the court in the giving of an instruction authorizing the jury to find' the existence of a conspiracy between Ray Fields and the defendant, in pursuance of which the homicide was committed, has been sufficiently covered by wh.at has been said as to the admissibility of the testimony offered by the State upon that theory of the case.

IY. In the closing argument to the jury the prosecuting attorney said: “The State has proved certain facts; has brought a large number of witnesses before you whose testimony has not been controverted by the defendant’s witnesses.” This language was objected to by counsel for defendant, “for the reason that the defendant is not obliged to take the stand.” The court thereupon admonished the prosecuting attorney that he had no right to comment on the fact that the defendant did not take the stand. The defendant’s counsel then excepted to the remark of the court. It is now contended by appellant that prejudicial error was committed in the remarks both of the prosecuting attorney and of the court.

As to the alleged improper remarks of the prosecuting attorney we are of the. opinion that the language was not open to the construction that it was a comment on the failure of the defendant to testify. The words “the defendant’s witnesses” are not fairly susceptible of such an interpretation, nor is there anything in the record to indicate that they were so intended . "We hold that the prosecuting attorney was within the bonds of legitimate argument and that his conduct was not open to the objection made or deserving of admonition from the court.

. The court did refer to the fact that the defendant did not take the stand as a witness, but it was after counsel for the defendant had first referred to the same fact and was for the purpose of correcting the alleged error to which counsel had called the court’s attention. Under the circumstances the remark of the court did not constitute error, but even if it did it was “error committed at the instance of the defendant” and therefore not reversible error. Sec. 5115, R. S. 1909. The facts of this case, upon the point now considered, are readily distingushed from those of the case of State v. Snyder, 182 Mo. 462.

Y. It is finally insisted that the court erred in refusing defendant’s instruction in the nature of a demurrer to the evidence.

The facts and circumstances upon which the State relied as justifying the submission of the case to the jury and as sufficient to sustain the verdict have been detailed elsewhere in this opinion and we shall not repeat them at length here. The facts that the defendant. procured a deadly weapon before going to a church service; that he was with his brother and talking about the ill-will between his brother and the deceased immediately before the homicide; that he went into the church with his brother and held his pistol in his hand and was looking toward his brother and his victim when the fatal shot was fired; that he went out with his brother after the homicide and returned, threatening any person who sympathized with the murdered man; that he showed his consciousness of guilt by hiding the weapon, all tended to prove that the defendant was aiding, advising and abetting his brother in the commission of the murder of which he was convicted.

It is well settled that when the testimony tends to prove the offense charged, it is the province of the jury and not of the court to pass upon its weight. [State v. Sharp, 233 Mo. 269; State v. Cannon, 232 Mo. 205; State v. Sassaman, 214 Mo. 695; State v. Fogg, 206 Mo. 696; State v. Tetrick, 199 Mo. 100.

The murder was unprovoked and without any mitigating circumstances and there is nothing in the record to sustain the complaint that the punishment was excessive or that the verdict was the result of passion and prejudice.

Finding no prejudicial error in the record the judgment is affirmed.

Ferriss and Brown, JJ., concur.