author: BURGESS, J.

text:
    THE STATE v. GRANT MATHIS, Appellant.
    Division Two,
    November 19, 1907.
    1. GAMBLING: Keeping Table: Poker. The setting up and keeping of tables on which poker is played is in violation of the statute (Laws 1901, p. 130). That statute prohibits the setting up or keeping of “any kind of gambling table or gambling device, adapted, devised and designed for the purpose of playing any game of chance for money or property,” and the inducing, enticing or permitting “any person to bet or play at or upon any such gaming table or gambling device, or at or upon any game played or by means of such table or gambling device.” It makes no difference whether the table on which the game of poker was played was a gambling device or not, or whether “poker” or “poker table” is specifically mentioned in the statute or not, or whether the table used was specially adapted, devised and designed for the purpose of playing poker; if the table used was a table adapted, devised and designed for the purpose of playing any game of chance for money or property, and defendant per- - mitted any person to bet or play upon such table, he is guilty of setting up and keeping a table or device, etc., in violation of the statute.
    2. -:-:-: Proof. That a poker table is adapted and designed for the purpose of playing games of chance is shown by the fact that games of poker were played thereon. And so of a table on which the game called “craps” is played.
    3. -:-:-: Cards: Dice. Although cards or dice may be necessary to be used in conjunction with a table or other device in order to play a game of poker or other game of chance, the table or device is none the less one denounced by the statute.
    4. --:-: Crap Table. Whether the table used was specially adapted, devised and designed for the purpose of playing, the game called craps, for money or property, is immaterial, so long as it was used for such purpose. If the evidence shows that the game of craps was played on a table set up or kept by defendant, and that he permitted persons to bet at or play at such table, the table was such as the statute forbids him to set up or keep.
    Appeal from Newton Circuit Court . — Eon. F. C. Johnston, Judge.
    Aeeikmed.

      Clay & Sheppard for appellant.
    (1) The court erred in admitting evidence that tended to show that defendant was conducting a poker game-. Laws 1901, p. 130. “Where a statute enumerates particular classes of persons or things, followed by general words, the general words will be limited in their meaning and restricted in their operations to objects of like kind with those specified.” State v. Schuchmann, 133 Mo. Ill; State v. South, 136 Mo. 673. A poker table is not mentioned1 in this section, it is not prohibited by the general provision, for the rule as to matters ejusdem generis applies. Bish., Stat. Or. (2 Ed.), secs. 193, 194, 227. (2) The game of poker could not be played by means of a table alone, but the thing that is adapted, devised and designed for the purpose of playing a game of poker is an ordinary deck of playing cards, and this court has expressly held that ordinary playing eards are not such a device as are prohibited by this statute. State v. Gilmore, 98 Mo. 206; State v. Etehman, 184 Mo. 193. (3) The court erred in admitting evidence tending to show that a crap game was being conducted in the Belmont Block without requiring the State to show that the same was being conducted upon a crap table, which was adapted, devised and designed for the purpose of playing a game of craps and that the table was set up or kept by defendant and that he enticed or permitted persons to bet at or play upon said table. There was no1 evidence whatever that the game of craps was being played upon a table commonly called a crap table. State v. Gilmore, 98 Mo. 211. The prohibition of section 1547 (now 2194) does not apply to games but to devices, and is limited to devices “adapted, devised and designed for the purpose of playing a game of chance.” State v. Fulton, 19 Mo. 680; State v. Rosenblatt, 185 Mo. 123; State v. Gilmore, 98 Mo. 211.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    The tables used were poker tables and crap tables, respectively, designed and devised specially for those games; and the games played on them were poker and craps, respectively — the defendant and his guests betting on said games for money. State v. Rosenblatt, 185 Mo. 114; State v. Miller, 190 Mo. 449; State v. Cronin, 189 Mo. 663; State v. Locket, 188 Mo. 415; State v. Davis, 102 S.* W. 528; State v. Holden, 102 S. W. 490.
   BURGESS, J.

At the April term, 1906, of the cir-. cuit court of Newton county, the defendant was convicted of the crime of setting up and keeping divers gaming tables and gambling devices, to-wit, two poker tables and one crap table, which were adapted, devised and designed for the purpose of playing games of chance for money and property. The conviction was under the second count of an indictment charging defendant with said offense, and the punishment assessed was five years in the penitentiary. After filing unsuccessful motions for a new trial and in' arrest of judgment, the defendant appealed.

The evidence on the part of the State tended to prove that there was a building known as the Belmont Block situated in the city of Neosho, Newton county, Missouri, and that in the summer of 1905 there were two upstairs rooms in said building which defendant occupied and called his office. One witness, Lou Ellis, did some work for the defendant and visited his home for the purpose of collecting the money owing him for said work. Defendant told him to come to his office and get paid. Witness went to said Belmont Block building, where he was directed to the- office of the defendant. He found the door locked, but the defendant unlocked it and admitted him. There was another man besides the defendant in the room. In that room were three tables, one square-shaped and two round tables, each having a canvas cover. After being paid the amount of his bill, Ellis engaged in a game of poker with defendant and the,other man, and remained there seven hours. Ellis bought five dollars’ worth of poker chips from the defendant, paying him money therefor, and after losing on the game he again bought five dollars ’ worth of chips. Losing the second time, he bought ten dollars’ worth of chips from the defendant, which he also lost. At various times, during the progress of the game, Ellis heard knocks at the door. Each time, the defendant got up, went to the door and peeped through the keyhole, but did not allow anybody to enter. The poker table at which Ellis and his companions played had a drawer in it and also a slot on the top>, through which slot chips were dropped into the drawer by players at the game, the chips dropped through becoming the operator’s “rake-off.” Witness Ellis also testified that during the game that they there' played, defendant sat on one side of the poker table, about where the drawer was, and that Ellis and the other man sat on the other side of the table opposite the defendant. That the defendant kept the chips and decks of cards in the drawer, and that the defendant had charge of the decks and also charge of the chips. He further testified that they used the chips to bet with instead of money, and that after the game was over the chips were cashed, the defendant cashing the same.

Elbert Oliver, a boy of nineteen, testified that he knew the defendant and had visited his place of business in the Belmont Block along in the summer of 1905, and that he met the defendant and several others in those upstairs rooms at night. He further testified to the fact that the door was locked and that some one on the inside responded to his knock. On that night this witness, the'defendant and others played a game of craps on one of these tables, using dice and betting money.

John Picldns, a boy of fifteen, testified that he, too, visited the defendant’s apartments in the Belmont Block and saw men shooting craps there on a table, using dice. He said nobody invited him to go up there; be “just followed the gang.” After the proper knock was made on this door, some one from within unlocked it and let them in. This witness lost thirty-five cents on the game of craps, which he said was played on a table that had black oil-cloth, or something of that kind, over the top.

The city marshal of Neosho, Mr. B. J. Peraman, and Sheriff John B. Beavers raided the Belmont Block one night in the summer of 1905, but before forcing an entrance they climbed up in a chair and peeped in over the transom. They saw the defendant, Elbert Oliver, Claude Flemming and others in the room gambling and shooting craps. The defendant was sitting on one side of the table and the others were sitting on the other side of the table, facing him, rolling dice and throwing money on the table. There were three tables in the room and each one had a cloth cover. Two of the tables were covered alike, but one had a white cover. After watching this for a little while, the officers went away and came back later that night. By this time the defendant and his associates were making considerable more noise: The officers heard the dice and money falling upon the table, and the defendant and two of his friends were still seen standing around the tables. In the drawers of these tables were found thirteen decks of cards and a number of poker chips. The sheriff called out, “Boys, I see you,” and asked that the door be opened. After making further demands for the door to be opened, and kicking on the door several times, it was unlocked, and the sheriff and marshal entered. ■ There was only one man in the room where' the tables were. ' Bnt on going through into another room and back into a closet, the defendant and several of his friends were found. Two of the tables were round and one was a square table. The round tables were what were known as poker tables. The other table was the kind used to shoot craps on.

The defendant offered no evidence, but asked for an instruction in the nature of a demurrer to the evidence introduced by the State, which instruction the court refused to give, and defendant excepted.

The indictment charges that’ on the — day of September, 1905, Grant Mathis, in the county of Newton and State of Missouri, did unlawfully and feloniously set up and keep divers gaming tables and gambling devices, to-wit, two poker tables, commonly so called, one crap table, commonly so called, upon which dice and cards were used, which said gaming tables and gambling devices were adapted, devised and designed for the purpose of playing games of chance for money, property and poker chips, and did then and there unlawfully and feloniously entice and permit divers persons, to the grand jury unknown, to bet and play at and upon and by means of said gaming tables and gambling devices.

The indictment is drawn under section 2194, Revised Statutes 1899, as amended by the Act of 1901, Laws 1901, p. 130, which is as follows:

“Every person who shall set up or keep any table or gaming device commonly called A B C, faro bank, E O, roulette, equality, keno, slot machine, stand or device of whatever pattern, kind or make, or however worked, operated or manipulated, or any kind of gambling table or gambling device adapted, devised and designed for the purpose of playing any game of chance for money or property, and shall induce,. entice or permit any person to bet or play at or npon any such gaming table or gambling device, or at or upon any game played or by means of such table or gambling device or on the side of or against the keeper thereof, shall, on conviction, be adjudged guilty of a felony, and shall be punished by imprisonment in the penitentiary for a term of not less than two nor more than five years, or by imprisonment in the county jail for a term not less than six nor more than twelve months. ’ ’

Defendant’s first insistence is that it is no offense, under said section of the statute, to set up and keep a poker table, and to entice or permit persons to play at or upon the same, for the reas op that a poker table is not specifically mentioned in the .statute, nor prohibited by the general provision.

In State v. Rosenblatt, 185 Mo. 114, the accused was indicted under this same statute, and convicted of the- offense of setting up- and keeping a crap table. The contention of the defendant was that the indictment did not charge the “setting up or keeping” any of the tables or gambling devices denounced by the statute; that instead of charging the setting up and keeping a roulette table it charged the setting up' and keeping of a roulette wheel, and did not specify either of the gambling devices specified in sáid section. Upon this proposition Gantt, J.,- speaking for the court, said:

“The statute is broad enough to- and does include the setting up or keeping ‘any kind of gambling table or gambling device adapted-, devised and designed for the purpose of playing any game of chance for money or property,’ and this indictment specifically charges that the defendant did set up and keep one crap table, commonly so called, upon which dice are used, and one chuck-ar-1/uck table, commonly so called, upon which are used dice, ‘which said gaming tables and gambling devices were adapted, devised and designed for the purpose of playing games of chance, for money and property,’ etc.

“ ‘Chuck-a-luck’ and ‘craps’ are not named, and therefore do not have a legal signification within the meaning of the statute, but if prohibited at all, must come within the general prohibition of the section. Conceding that all other gambling tables and devices not specifically named must, under the doctrine ejusdem generis, be of the same general class with those devices specifically named, we think there can be no doubt that a chuck-a-luck table and a crap table are of that class.

“It was so ruled of ‘keno’ under a statute of Arkansas substantially in the words of section 2194. [Gould’s Digest of Arkansas, see. 1, art. 3, chap. 51; p. 369; Portis v. State, 27 Ark. 360; Trimble v. State, 27 Ark. 355.] Also of ‘pico.’ [Euper v. State, 35 Ark. 629.] In Bell v. State, 32 Tex. Crim. Rep. 187, a ‘crap table’ was held to be a gambling device within the statute of that State against keeping or exhibiting, for the purpose of gambling, a gaming table or bank. A like ruling was made as to a ‘nickle-in-the-slot machine? by the Supreme Court of Georgia in Kolshorn v. State, 97 Ga. 343. [See, also, Mims v. State, 88 Ga. 458.]”

That case was approved and followed in State v. Locket, 188 Mo. 415. The cases of State v. Gilmore, 98 Mo. 206, and State v. Etchman, 184 Mo. 198, are' not in conflict with those cases. ■

Counsel for defendant lay much stress upon the' fact, that the game of poker does not require a table' or device of a certain kind, and specially adapted, devised and designed for the playing of the game of poker alone. Nor was it necessary that the table should be s-pecially adapted, devised and designed for the purpose of playing poker alone. The statute should not' be given any such restricted meaning. It prohibits the1 setting up or keeping “any hind of gambling table or' gambling device, adapted, devised and designed for the purpose of playing any game of chance for money or property,” and the inducing, enticing or permitting “any person to bet or play at or upon any such gaming table or gambling device, or at or upon any game played or by means of Such table or gambling device, ’ ’ always putting it in the disjunctive. It makes no difference whether the table on which the game of poker was played was a gambling device or not; if it was a table, adapted, devised and designed for the purpose of playing any game of chance for money or property, .and the defendant permitted any .person to bet or play upon such table, he is guilty as charged. That the poker table, so called, was adapted and designed for the purpose of playing games of chance is clearly shown by the fact that games of poker were played thereon, in some of which at least the defendant participated.

A further contention is that the game of poker cannot be played by means of a table alone, but that the thing that is adapted, devised and designed for the purpose of playing such game is an ordinary deck of playing cards. The primary object of the statute was to prevent gambling, by prohibiting the setting up or keeping any kind of table or gambling device for the purpose of playing any game of chance for money or property, and although cards or dice may be necessary to be used in conjunction with such table or device in order to play such game of chance, .it is none the less a gambling table or device when used in conjunction with cards or dice for the purpose of playing a game of chance for money or property. [State v. Rosenblatt, supra; State v. Locket, supra.]

It is next insisted that the court erred in admitting evidence tending to show that a crap game was being conducted in the building known as the Belmont Block, without requiring the State to show that the game was being played on a crap table, adapted, devised and designed for tbe 'purpose of playing tbe game of craps, and tbat tbe table was set up or kept by tbe defendant and tbat be enticed or permitted persons to bet or play upon it. Tbe evidence was conclusive tbat tbe game of craps was played on a table set up or kept by defendant, and tbat be permitted persons to bet at or play upon said table. Whether sucb table was specially adapted, devised and designed for tbe purpose of play-' ing tbe game called craps, for money or property, is immaterial, so long as it was used for sucb purpose, what we have already said with respect to tbe poker table applying with equal force to this proposition.

Other questions are raised by defendant, but as they seem to be without merit we do not feel it necessary to pass upon them.

Finding no reversible error in tbe record, the judgment is affirmed.

All concur.


source: Caselaw Access Project

author: FOX, P. J.

license: Public Domain

text:
    THE STATE v. PADDY CUMMINGS, Appellant.
    Division Two,
    November 19, 1907.
    1. VOTER: Unlawful Registration: Information. An information charging defendant with unlawfully registering as a voter under a name not his own is set out in the statement, and is held to substantially- charge the offense denounced by the statute. _
    2. INSTRUCTION: Feloniously. An instruction which fails to require the jury to find that the felonious act was “feloniously” done is not erroneous.
    3. VOTER: Registration: Oath. The requirement of the statute requiring the election judges to administer an oath to the applicant for registration as a voter, is one directed exclusively to the registration officers, and a precautionary measure which they may resort to for preventing imposition. But a failure to administer an oath to a person who is entitled to register would not invalidate his registration.

      4. --: Fraudulent Registration: No Oath. If defendant fraudulently procured the registration of himself as a legal voter under a name not his own, it is no defense that no oath was administered to him prior to his registration.
    5. -: -: Fictitious Name. A person who knowingly and fraudulently procures himself to he registered as a legal voter under a name not his own, is guilty of a felony, whether an oath is at the time administered to him or not.
    Appeal from St. Louis City Circuit Court. — No». Matt. O. Reynolds, Judge.
    Affirmed.

      Henry M. Walsh for appellant.
    (1) The information was evidently intended to be brought under the Act of 1903, section 2120], and if this is the section which it was intended should be pleaded, the information does not follow the statute, and the instruction fails to charge that the jury must find that the alleged registration was done feloniously, as well as willfully, knowingly, falsely and fraudulently. (2) The statute requires that one of the judges shall administer an oath to each person who shall present himself for registration, and this is the first act, and a judge and a judge alone is the person who must qualify every applicant for registration; no clerk nor other election official has any authority to qualify any person for registration; this same act then further requires that unless a majority of the judges determine that the applicant is a qualified voter, he shall be entered as not qualified, subject to the applicant’s right of appeal as herein provided; the clerks are not authorized to do anything to determine the right of any application for registration. (3) The charge in this information, if it charges anything, is that defendant was guilty of feloniously and fraudulently registering in a name •other than his own; it was just as essential for him to take the oath as it would have, been for a. witness to take an oath before taking the witness stand,' and the refusal to take the oath shows that there was an absolute lack of intention.' on his part to commit any felony.

      Herbert 8. Radley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The information, which was accompanied by the affidavit of the circuit attorney, is sufficient in form and substance; it follows the .language of the statute, and fully informs the defendant of the offense charged. Laws 1903, pp. 171,172,173,174, 175 and 176, (2) Instruction 2 properly told the jury that it was not necessary for the State to prove that defendant was sworn by the judges, clerks and officers of registration. The criminal act with which defendant was charged, and of which he was convicted, was complete when he appeared before the registration officers, gave a fictitious name, stated that he lived within that election precinct, asked that he be registered as a qualified voter, had the officers to enter his name and residence on the registration books, and signed a fictitious name in the column for qualified voters. The crime denounced by our statute is that of fraudulent registration, and the crime was complete when defendant, by false and fraudulent representations, procured his name to be entered upon the registration lists. If defendant had made oath to the correctness • of the facts therein stated, he would have been guilty of the additional crime of perjury, with which he was not charged, and of which he was not convicted.
   FOX, P. J.

This cause is here by appeal on the part of the defendant from a conviction in the circuit court of the city of St. Louis of the offense of fraudulently registering under a name other than his own. The information (which was duly verified), omitting formal parts, upon which this prosecution is based, is as follows:

“Comes now Arthur N. Sager, circuit attorney, within and for the city of St. Louis (said city comprising the Eighth Judicial Circuit of the State of Missouri) and now here in court on behalf of the State of Missouri, and on his official oath, information makes, that on the twenty-first day of September, in the year of our Lord one thousand nine hundred and four, there was held in the- said city of St. Louis, and in each ward and precinct of said city, a general registration of electors and voters under and pursuant to the laws of the State of Missouri (the said city of St. Louis being then and there a city having more than three hundred thousand inhabitants); and' that Paddy Cummings, late of the city of St. Louis, on the said twenty-first day of September, one thousand nine hundred and four, at the said city of St. Louis and in the ninth election precinct of the sixteenth ward of said city of St. Louis, at the place of registration of said ninth election precinct of said sixteenth ward of said city of St. Louis, at No. 1829% Biddle street, and before the judges, clerks and officers of registration of said ninth election precinct of the sixteenth ward of said city of St. Louis, unlawfully, feloniously, wilfully, knowingly, falsely and fraudulently did then and there register under a name not his own, to-wit, under the name of John P. Cray, and then and there unlawfully, feloniously, knowingly, falsely and fraudulently pretended and represented to said judges, clerks and officers of registration of said ninth election precinct of the sixteenth ward of said city of St. Louis, that his name was John P. Cray and that he was one John P. Cray, and that he was entitled to register and be registered on the books of registration and registers of said election precinct as a qualified voter and elector of said election precinct under said name of John P. Cray, and requested and required that said judges, clerks and officers of registration of said, election precinct enter, write and register the name of him, the said Paddy Cummings, on said registers, poll-hooks and books of registration of said election precinct as John F. Gray, and as a resident and a qualified voter and elector of said election precinct, entitled to register and vote in said election precinct as John F. Gray, he the said' Paddy Cummings then and there well knowing that his name was not John F. Gray; and the said judges, clerks and officers of registration of said ninth election precinct of the sixteenth ward of said city of St. Louis, . then and there did enter and write upon the registers, and hooks of registration of said election precinct the said name of John F. Gray as and for the name of him, the said Paddy Cummings, as a resident and qualified voter and elector of said election precinct, entitled to then and there register and vote in said election precinct, and he, the said Paddy Cummings, then and there unlawfully, feloniously, willfully, knowingly, falsely and fraudulently did sign said registers, poll-hooks and hooks of registration of said election precinct in the margin on said hooks provided for the signatures of registered electors and voters, under the same name John F. Gray hy writing on said hooks the word's and name £ J. Gray.’

' “And so the said Paddy Cummings at the said city of St. Louis, on the said twenty-first day of September, one thousand nine hundred and four, in the manner and form and hy the means aforesaid, unlawfully, feloniously, wilfully, knowingly, falsely and fraudulently did register under a name not his own; contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State. ’ ’

The evidence on the part of the State tended substantially to prove that on the 19th, 20th and 21st days of September, 1904, there was a general registration of voters in the city of St. Louis, and that on said days the duly appointed judges and clerks of such registration proceeded in the discharge of their duties. The defendant appeared before the judges and clerks of registration of the 9th election precinct of the 16th ward, and represented to them that his name was John P. Gray, and that he was entitled to register, as he lived at No. 1504 Biddle street, which was within said election precinct in said city. Accordingly, the defendant’s name was entered on the registration hooks as John P. Gray, his residence was also entered, his nationality, and his color. The defendant, at the proper place on said hooks, signed his name “ J. Gray.” The defendant was then intoxicated, and one -of the judges suggested that he had not been sworn, another judge suggested that he had already been sworn, whereupon one of the judges told him to hold up his hand and be sworn. The defendant then began using loud, profane and indecent language and tried to assault the judge, and was ejected from the registration precinct. The defendant was afterwards arrested and admitted that his name was Paddy Cummings, and that he lived at No. 1504 Biddle street.

The defendant did not introduce any testimony in this cause, but at the close of the State’s case requested an instruction in the nature of a demurrer to the testimony, directing the jury under the information and evidence introduced to acquit the defendant. This request was denied and the court instructed the jury as follows:

“1. Under the statutes of this State any one who registers under a name not his own, or in or under the name of any other person, or in or under any assumed or fictitious name, is guilty of a felony.

“The defendant in this case stands charged with having registered under a name not his own. The information in this case was filed in this court on the 26th day of October, 1905. The defendant pleads not guilty, and the court gives you the following instructions to guide you in reaching a verdict as to the guilt or innocence of the defendant.

“If you find and believe from the evidence in the cause that on the 21st day of September, 1904, a general registration of electors and voters was held in the city of St. Louis, and in every election precinct of said city, by the duly appointed and acting judges, clerks and officers of election and registration; that the 9th precinct of the 16th ward mentioned in the evidence was then and there one of the election precincts of said city of St. Louis; and if you further find that on said 21st day of September, 1904, and while said registration of electors and voters was in progress and being held (if you find that said registration was so held as aforesaid) the defendant did appear at the place of registration in said 9th election precinct of the 16th ward before the duly appointed and acting judges, clerks and officers of registration of said election precinct, and willfully, knowingly, fraudulently and falsely stated to said judges, clerks and officers of registration for said election precinct that his name was John F. Gray, and that he was a resident of said precinct, and had the right to register and vote in said precinct, and wilfully, knowingly, fraudulently and falsely requested said judges, clerks and officers of registration of said election precinct to register him, the said defendant, as an elector and voter; and if you further find that said judges, clerks and officers of registration did then and there enter the name of John F. Gray as the name of defendant upon the official registers and books of registration of said election precinct as a registered elector and voter of said precinct, and that said defendant then and there wilfully, knowingly, fraudulently and falsely signed the said official, registers and books of registration by writing thereon the name < J. Gray,’ as and for his own name; and if you further find the fact to be that the true name of defendant was not John F. Gray, but Paddy Cummings, and that defendant at the time he did the acts-set out in these instructions (if you find that he did the acts as set out in these instructions) knew that his-name was not John F. Gray, but Paddy Cummings,, then you will find the defendant guilty, and assess his-punishment at imprisonment in the penitentiary for a term of not less than two nor more than five years;, and unless you find the facts to be as set out in these instructions you will acquit the defendant.

“2. If you find the facts in this case to be as set out in instruction number 1, then it is not necessary for the State to show that the defendant was sworn by the judges, clerks and officers of registration.

‘13. The court instructs the jury that in making . up their verdict they will entirely disregard all testimony with reference to the defendant being drunk, and that drunkenness cannot be pleaded in excuse, mitigation or defense of any crime.

“4. You are further instructed that the information contains the formal statement of the charge, but is not to be taken as any evidence of defendant’s guilt.

“The law presumes the defendant to be innoeent, and this presumption continues until it has been overcome by evidence which establishes his guilt to your satisfaction and beyond á reasonable doubt; and the burden of proving his guilt rests with the State.

“If, however, this presumption has been overcome by the evidence, and the guilt of the defendant established to a moral certainty and beyond a reasonable doubt, your duty is to' convict.

“If, upon consideration of all the evidence, you have a reasonable doubt of-the defendant’s guilt, you should acquit; but a doubt to authorize an acquittal on that ground, ought to be a substantial doubt touching the defendant’s guilt and not a mere possibility of his innocence.

“You are further instructed that you are the sole judges of the credibility of the witnesses and of the weight to be given to their testimony. In determining such credibility and weight you will take into consideration the character of the witness, his manner on the stand, his interest, if any, in the result of the trial, his relation to or feelings towards the defendant or prosecution, the probability or improbability of his statements, as well as all the facts and circumstances given in evidence. In this connection you are further instructed that if you believe that any witness, has knowingly sworn falsely to any material fact, you are at liberty to reject all or any portion of such witness’s testimony. ’ ’

After giving the instructions as before indicated, the record discloses the following occurrence:

“Mr. "Walsh: I want to object to instructions 2 and 3, and ask that an instruction contrary to number 2 be given for the defendant; that is, that one of the requisites of registration is the administering, of an oath.

“The Court: Well, you better put it in writing and the court will refuse it, becausé the court, having given one to the jury that it is not necessary to be sworn in order to fraudulently register, would refuse the other without any question. But in order that you may save the point properly, you may draw the instruction and I will refuse it. ”

Thereupon the defendant offered the following instructions :

“The court instructs the jury that if, from the evidence, they find that the defendant, Paddy Cummings, did not qualify as a voter, and that he refused to qualify as a voter, then they must acquit the defendant.

(! The court instructs the jury that under the evidence they must acquit the defendant.”

Which said instructions the court refused, to give. To which action and refusal of the court to give said instructions the defendant then and there duly excepted. The defendant also then and there duly excepted to each and all of the.instructions given by the court as to the law and the evidence. The court gave the following additional instruction:

“5. The argument of counsel is for the purpose of aiding you to reach a proper verdict in the cause by refreshing in your minds the evidence which has * been given to you in this cause, and by showing the application of the law thereto; but whatever counsel may say, you will bear in mind that it is your duty to be governed in your deliberations by the evidence as you understand it and remember it to be, and by the ' law as’ given by the court in these instructions, and render such verdict as in your conscience and reason and candid judgment seems to be just and proper.”

To the giving of which said instructions the defendant then and there duly excepted. The cause being submitted to the jury they returned a verdict finding the defendant guilty as charged in the information and assessed his punishment at .imprisonment in the penitentiary for two years. A timely motion for new trial was filed and by the court overruled. Judgment and sentence was entered of record in conformity to the verdict and from that judgment the defendant in due time and proper form prosecuted his appeal to this court and the record is now before us for consideration.

OPINION.

Numerous complaints are urged by learned counsel for appellant as grounds for the reversal of this judgment. We will give the assignments of error such attention as they merit and reasonably require. The section of the statute, section 2120j, Laws 1903, p. 158, provides that, “any person . . . who shall register or attempt or offer' to register under any name not his own, or who shall falsely register, or offer or attempt to register under the name of any other person, or in or under any assumed or fictitious name, or in or under any name not his own . . . shall be adjudged guilty of a. felony, and shall be punished by imprisonment in the penitentiary for not less than two years or more than five years.”

I.

It is insisted by appellant that the information is insufficient to support the judgment in this cause. We have the brief of learned counsel now before us .and it does not undertake to point out in what particulars its insufficiency consists, and our attention is directed to no authorities in support of this insistence. We have reproduced the information upon which this prosecution is predicated and it is sufficient to say that in our opinion it substantially charges the offense defined by the statute.

H.

It is next contended by appellant that instruction numbered 1 is erroneous for the reason that it failed to require the jury to find that the acts of the defendant were done feloniously as well as unlawfully, knowingly and fraudulently. Upon this contention it will suffice to say that this court has repeatedly held that instructions need not necessarily be as broad as the charge in the information or indictment, and it was not essential in the instructions of the court to use the term feloniously. If the acts of the defendant as complained of in the information, were wilfully, knowingly, falsely and fraudulently done, the statute classifies the commission of such acts as a felony, and while it is essential in charging the offense in an information or indictment, in order to classify the offense, to charge that it was feloniously done, it is by no- means essential that the term feloniously should be used in the directions of the court to the jury. [State v. Rowland, 174 Mo. 373; State v. Woodward, 131 Mo. 369; State v. Barton, 142 Mo. 450; State v. Miller, 159 Mo. 113.]

III.

This leads us to the most earnest insistence of appellant, that the court erred in giving instruction number 2, which substantially told the jury that it was •not essential, in order to warrant a conviction of the defendant, for the State to show that the defendant was sworn by the judges, clerks and officers of registration. Error is also assigned upon the refusal of an instruction requested by the appellant which declared the law just the reverse of the declaration in number 2, that is, that it was essential that the appellant should have been sworn by one of the judges, and unless he was so sworn the jury should acquit him. Our attention is not directed, either by counsel for the State or the appellant, to any authorities upon this proposition, and an independent investigation has failed to disclose any authorities adjudicating that question; therefore, the proposition must be treated as one of first impression.

The requirement of the statute to administer an oath to the applicant for registration is one directed exclusively to the registration officers, and it is simply a precautionary measure which the registration officers have a right to resort to in order to prevent being imposed upon by applicants for registration, but the failure to administer an oath to a person who is entitled to be registered, would by no means invalidate the registration, and if the defendant in this case fraudulently procured a registration of himself under a name not Ms -own, it is clear that it is no defense that one of the judges did not admiMster to- him an oath prior to sneh registration. His offense was complete when by false and fraudulent representations he procured his name to he entered upon the registration list, and if he had made a false affidavit, or had sworn falsely before one of the judges he would simply have been guilty of the additional crime of making a false affidavit, or the commission of the offense of perjury. The facts developed at the trial show that there were certain days set apart in the election precincts for the registration of voters; that the defendant appeared before the registration officers; gave a fictitious name; stated that he lived within the-election precinct; requested that he be registered as a qualified voter; had the officers enter his name and residence upon the registration books, and signed a fictitious name in the column for qualified voters. Upon the proof of such state of facts his offense was complete-, and it is. not for him to plead, as- a defense for the commission of such acts, that any of the registration officers failed to discharge their duty in respect to administering an oath to the applicant for registration.

There was no error in the declaration of law complained of that it was not one of the essential elements of the offense charged in this cause that the defendant should have been sworn, and there was also no error in the court refusing to declare the reverse of that proposition, that it was essential to make such proof.

The evidence developed at the trial of this cause fully supports the verdict of the jury. It substantially appears that he knowingly and fraudulently procured himself to be registered under a name not his own, and the verdict of the jury was simply responsive to that showing. "We have carefully examined and considered the disclosures of the record in this proceeding and finding ño reversible error tbe judgment of the trial court should be affirmed, and it is so ordered.

All concur.


author: GANTT, J.

text:
    THE STATE v. WILLIAM PYLES, Appellant.
    Division Two,
    November 19, 1907.
    1. OBJECTIONABLE QUESTION: Unfavorable Answer. A party cannot sit by and permit a question clearly objectionable on its face to be answered, without objection, and then take the benefit 'of it if the answer is favorable, or have it stricken out if unfavorable.
    2. -: Hearsay: Other Objection. An objection to a question, which calls for hearsay evidence, that it does not prove or disprove any issue in the case, is not equivalent to an objection that it is hearsay. That is no more than saying it is irrelevant and immaterial.
    3. MURDER: Entering Fight. When parties by mutual understanding engage in a fight, and death ensues to either, the slayer will be guilty of murder, when the combat is not the immediate consequence of a sudden quarrel, but an act of deliberation or agreement.

      4. -: -: In Second Degree: Malice: Premeditation. Ill-feeling had existed between defendant and deceased; defendant in the morning had threatened that the trouble would culminate rhat night; he had airmed himself with a knife and pistol and gone to the church in the evening; when deceased remarked that he was going out of the church to get a drink of water and did go, defendant followed him a few moments- later to the well; deceased was totally unarmed; at the well some challenging words were passed, and deceased pushed back his hat and they went to fighting, and deceased struck defendant a time or two, and defendant drew a revolver, which was heard to snap but was not discharged; defendant says he was trying to use it as a club, but that deceased wrenched it out of his hands and tried to shoot him with it, and he then cut him with the knife; the pistol was found within a few feet of where deceased had fallen, as a result of the fatal knife cuts, and there was some evidence that defendant had put it there. Held, that it was for the jury to say.whether or not the killing was malicious and the result of a premeditated purpose to kill, and a verdict of murder-in the second degree is permitted to stand.

      Appeal from Carter Circuit Court. — How. William N. Evans, Judge.
    Affirmed.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The information, which is accompanied by the affidavit of the prosecuting attorney, is sufficient in form and substance. Kelley’s Crim. Law, sec. 474 Although the information charged murder in the first degree, yet the State had a right, with the permission of the court, to dismiss the greater charg*e and to prosecute defendant for a lesser offense. State v. Feeley, 194 Mo. 323; State v. Mosley, 115- Mo. 644. (2) The law is well settled in this State that a defendant can . not sit by and permit a question to be answered, and then take the benefit of it if the same is favorable and have it stricken out of it is not favorable to him. State v. Harris, 199 Mo. 716; State v. Sykes, 191 Mo. 79; 1 Thompson on Trials, secs. 715-716. It should be remembered that defendant did not object to this evidence because the same was hearsay, but simply that it “did not prove or disprove any issue in the case,” which was .equivalent to saying that the same was irrelevant and immaterial. But this amounts to no objection at all, as this court has often said. State v. McLaughlin, 149 Mo. 27; State v. Young, 153 Mo. 449. (3) In his motion for a new trial, defendant assigns error in the failure of the court to fully instruct the jury on all questions of law in the ease necessary for them to consider, etc. But no objections were made at the time, and no exceptions were saved at the time to the failure of the court to so instruct. This point has, therefore, been waived. State v. Urspruch, 191 Mo. 50; State v.. Finley, 193 Mo. 211. (4) The evidence fully justified the jury in convicting defendant of murder in the sec- and degree; and the punishment assessed is very light. If the jury believed the State’s evidence, and the verdict so affirms, then the verdict could not have been otherwise. (5) General threats . were admissible against a defendant, even though at the time he made them he did not know the deceased. State v. P'eeley, 194 Mo. 315. In the case at bar defendant knew the deceased, had had one or more difficulties with him at that church and during that protracted meeting. So, when the defendant predicted trouble on this night, the jury were justified in giving great weight to such evidence, especially in view of the war-like way that the defendant attended that religious gathering. The evidence for the State, as well as that for the defense,. clearly brings this case within the rule laid down in a recent case, after reviewing the various authorities, that when the defendant and the deceased “by mutual understanding engage in the conflict and death ensues to either, the slayer will be guilty of murder.” State v. Maupin, 196 Mo. 172; State v. Christian, 66 Mo. 147. This case, therefore, falls within the rule so often announced by this court, that where there is substantial evidence tending to show that defendant is guilty, this court will defer to the finding of the jury, as approved by the trial court, and not attempt to weigh the evidence. State v. Smith, 190 Mo. 706; State v. Payne, 194 Mo. 442; State v. Groves, 194 Mo. 452; State v. "Williams, 186 Mo-. 128; State v. Williams, 149 Mo. 496; State v. Swisher, 186 Mo. 8.
   GANTT, J.

On the 21st day of August, 1905, the prosecuting attorney of Carter county filed an information, duly verified, charging the defendant with murder in the first degree. The offense was alleged to have been committed on the 20th day of August, 1905, the weapon used was a knife, and the name of the deceased was Alvy Chilton. At. the September term, 1905, the State elected to prosecute on the charge of murder in the second degree. The defendant waived formal arraignment, pleaded not guilty, was tried and convicted of murder in the second degree; the punishment assessed was ten years in the penitentiary. After filing formal motions for a new trial and in arrest, which were overruled, defendant appealed.

The State’s evidence tended to prove that a protracted meeting was being held in one of the churches in the town of Rogers Mill, near Brushy Creek, in Carter county, which meeting continued for some time. The defendant and the deceased were both young men and both attended the meeting on Saturday night. There was an unfriendly feeling existing between the young men, and on Saturday night the defendant stepped twice on the toes of the deceased. Eiach time the deceased requested him to keep off of his feet, and the defendant, each time he walked near the deceased, put his hand in his pistol pocket. The next morning, about eleven o’clock, the defendant was introduced by William Bowman to a Mr. Williams, when Mr. Williams asked the name of the creek, and the defendant said that it was the “Big Savage,” and that trouble had been brewing there for some time and that it would probably happen there that night. That night about 7:30 the deceased and others were sitting in the church, services having just commenced, when the deceased went out, and walked to a well of the F. M. Rogers place, which was only a few feet from the church. In about five minutes the defendant got up and followed him over to the well. Several persons testified to seeing a difficulty between the two beginning with a fist fight and then hearing the deceased say, “You have cut me, you have killed me;” and the defendant say, “You tried to draw a pistol on me.” The deceased walked a short distance away and fell, when the defendant said, “I guess, by Gicd, he is fixed.” The defendant followed and made a motion like he was picking np something near the body of the deceased. A lantern was brought and a small pistol with one load in it was found some three or four feet from the body of the deceased and was picked up and exhibited to the crowd that gathered around. This pistol belonged to the defendant and contained one load, the cap of which had been snapped. The defendant left the scene of the killing and went to the home of Henry Johnson, about eight miles away, where he stayed all night. He told Mr. Johnson of the killing, said he intended to go and give himself- up the next morning. Dr. T. W. Cotton, who was then coroner of the county, was called on Monday and held an inquest. He testified that he found eight wounds on the body of the deceased, six of which were not serious, but two of them were necessarily fatal. Most of the wounds were on the shoulder and back. One wound was under the left arm-pit and entered the chest cavity,- and the other wound cut the cartilage of the second rib where it joins on the breast bone. All of the wounds were made with a knife, and the two last named were mortal. The doctor further testified that such wounds would produce, and, in his opinion, did produce a hemorrhage, from the effects of which the deceased soon died.

The defendant’s evidence tended to prove that there was a very unfriendly feeling existing between the defendant and the deceased; and that on the night before the fatal difficulty the deceased followed the defendant around in the crowd near the church. At one time the deceased said to the defendant, “Damn you, don’t you step on my toes any more.” A little before dark on the evening of the homicide, one Lee Beavers and several other young men and boys were attending the evening service at said church,' when Beavers climbed the fence and went to the well on the Rogers place. About the time he had drawn up1 a bucket of water, the defendant and deceased and some others «carne up. A drink of water was passed- around to them all, and they heard some other hoys up the hillside some distance away using profane language and ap>parently having some trouble. The defendant said, ■ * ‘ They are making enough racket to have a little hell. ’ ’ The deceased replied that he wquld like to have a little trouble that night; and the defendant then said, “I guess that is what you have been following me around for.” At that, the deceased pushed his hat back, and the defendant began to back off and both commenced to strike at each other. The defendant was knocked-to his knees, having been struck three times. The defendant drew his pistol, intending to use it to hit the ■deceased with it, but deceased jerked the pistol out of defendant’s hands. The defendant called to the others to take the deceased off, saying he had a pistol. The deceased retorted that the defendant drew a knife. During the fight a pistol was heard to snap, which was defendant’s pistol in deceased’s hands. The defendant admitted cutting deceased several, times, but claimed he did it to defend himself and only after he had backed off some twelve feet and after he had been blinded by the blows inflicted upon him by the deceased. After the cutting the deceased climbed over the fence and soon fell; and defendant said, “I guess he is fixed.” A small pistol was found near the body of the deceased.

I. The information is sufficient both in form and substance to charge murder in the first degree, but the prosecuting, attorney, with the permission of the court, elected to try the defendant • for murder in the •second degree. All the evidence in the case was ■admitted without any objection on the part of the defendant’s counsel, save and except in one instance. During the cross-examination of the defendant’s witness, Lee Beavers, the prosecuting attorney asked him if the defendant’s father had not told Mm, the witness, that he, the father, had tried to get the defendant not to go to the church that Mght.' and the witness answered that he did. After this question had been asked and answered, the defendant moved to strike it out on the ground that it did not prove or disprove any issue in the case. The question was clearly objectionable on its face and the counsel for the defendant should have objected to the- witness answering it. It is the settled law of this court chat a party cannot sit by and permit a question to be answered and then take the benefit of it if the answer isi favorable or have it stricken out, if unfavorable. [State v. Sykes, 191 Mo. l. c. 79; State v. Harris, 199 Mo. 716.] Moreover, the defendant did not object to tMs evidence on the ground that it was hearsay, but simply on the ground that it did not prove or disprove any issue in the case, which was no more than saying that it was irrelevant and immaterial. We are clearly of the opinion that this action of the court of itself did not constitute reversible error.

H. The instructions given by the court fully cover all the points of law arising upon the evidence. The court defined murder in the second degree and the technical terms used therein, as they have often been explained and approved by this court. The court also instructed on manslaughter, reasonable doubt, presumption of innocence, and the credibility of the witnesses. It is unnecessary to burden this opinion with the reproduction of the instructions, because they are in the often-approved form on each of these subjects. It is true that the defendant, in his motion for new trial, assigns as error the failure of the court to fully instruct the jury on all questions of law in the case, but independently of the fact that no objection was made at the time to such failure, if any, and no exception saved, we have been unable to conceive of any proposition regarding the instructions which was not covered. by the court in its directions to the jury, and none have been suggested by the defendant or his counsel in this court; indeed, no brief has been filed in behalf of the defendant in this court.

III. The defendant was found guilty of murder in the second degree and we have read the record and the whole testimony in the case to ascertain if the evidence supported the verdict. The evidence discloses that there was a state of ill-feeling existing between the defendant and the deceased. There was testimony that on one occasion shortly before the fatal encounter, the defendant had apparently purposely trod on the toes of the deceased, and that on the morning before the homicide that night the defendant had uttered a threat to the effect that trouble had been brewing there for some time and would probably happen that night. The evidence further tended to show conclusively that the defendant went to the- church that night armed with a pistol and a knife. It appears that after the young men had taken their seats in the church the deceased remarked to a companion that he was going out to get a drink of water, and left the church and went to a well in the yard of Mr. Rogers, who lived only a few steps from the church. On the part of the State the evidence showed that a few minutes after the deceased left the church, the defendant and a relative of his also left the church and went to this same well in the Rogers yard. After taking a drink of water, the defendant remarked, according to the evidence, that some young-men were making enough racket to have a little hell. According to the evidence on the part of the defendant, the deceased replied that “he.would like to have a little trouble that night.” To which the defendant replied, “I guess that is what you have been following me around for,” and thereupon they mutually began to strike each other with their fists. During this encounter, the testimony of the defendant shows that he drew Ms pistol from Ms pocket, lie did this not to shoot the deceased, but to use it as if it were a pair of knucks to strike with. The pistol was heard to snap; but no one except the defendant undertook. to say that the deceased had the pistol in his hands. The defendant testified that the deceased wrenched the pistol from Ms, defendant’s, hands, and that then he drew his knife and deceased snapped the pistol at him. The defendant then began to stab the deceased with his knife and inflicted eight wounds on his body, two of which, the coroner, who made the post-mortem examination, testified were mortal wounds. The evidence also showed that during the encounter, the deceased was heard to say, “You have cut me, you have killed me,” and the defendant said, “You tried to draw a pistol on me.” The evidence clearly showed that deceased was entirely unarmed, and that the pistol which was found on the ground where the deceased lay, was the property of the defendant. There was some testimony-tending to show that the defendant himself dropped the pistol near the body of the deceased after he had fallen. Taking into consideration the ill-feeling that existed between the defendant and the deceased, the threat of the defendant that morning that the trouble would culminate that night, the fact that he had armed himself with a deadly -weapon, his following the deceased from the church over to the well, the willingness with which he had entered into the fist fight, the fact that the deceased was totally unarmed and the testimony of the defendant that he drew the revolver on the deceased and that he afterwards stabbed him, we think it was a question for the jury to say whether or not the killing of the deceased by the defendant was malicious and the result of a premeditated purpose to kill. The evidence tended strongly to show that the fight at the well was em tered into by the defendant and the deceased with a mutual understanding; that deceased contemplated nothing more than a fist fight, we think is apparent from all the circumstances in the case. But it is clear that the defendant was acting with an undue advantage. In State v. Christian, 66 Mo. l. c. 147, this court said: “It was held in State v. Underwood, 57 Mo. 40, that when parties, by mutual understanding, engage in a conflict, and death ensues to either, the slayer will be guilty of murder. Y7hen the combat, is the immediate consequence of a sudden quarrel, and not an act-of deliberation or agreement, it might be different; but even in cases of this kind the conclusion of malice may be reached, if the party killing began the attack with circumstances of undue advantage. When a party, under color of fighting upon equal terms, uses, from the beginning of the contest, a deadly weapon, without the knowledge of the other, and kills, or when, at the beginning, he prepares a deadly weapon, so as to have the power of using it, in some part of the contest, and does use it, and kills the other party with it, the killing will amount to murder. [1 Russell on Crimes, 529, 531.]” This statement of law was approved in the recent case of State v. Maupin, 196 Mo. l. c. 172. In view of all the facts, we think it was for the jury to find whether the killing was maliciously done. On the part of the defendant, the court gave a full and liberal instruction of self-defense, and told the jury that if they found and believed from the evidence that at the time and the place charged, the defendant was the aggressor and provoked or sought or induced a difficulty with the deceased but with no intent of killing him or of using upon him a dangerous and deadly weapon, and during the difficulty found himself hard pressed and found it necessary to kill the deceased to save his own life, then they might find him guilty of manslaughter in the fourth degree and assess his punishment as provided by the statute for that offense. The case, we think, was fairly put to the jury. There was substantial evidence to sustain their verdict. As the record is free from any reversible error, the judgment must he and is affirmed.

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


text:
    THE STATE v. WILLIAM BRANNAN, Appellant.
    Division Two,
    November 19, 1907.
    1. INDICTMENT: No Certificate: Matter of Exception. The certificate of the foreman of a grand jury to an indictment preferred hy such grand jury is not a part of the record proper. And, therefore,' the action of the court in overruling a motion to quash the indictment on the ground that it was not certified by the foreman of the grand jury as a true bill, is a matter of exception which must be taken advantage of in the motion for a new trial, and not in the motion in arrest.
    2. RAPE: Clothing as Evidence: Identification. Where, in a prosecution for rape, the mother of the child assaulted testified that she examined the child’s drawers the morning after the offense was committed, and found them torn to pieces and blood stains on them, and that they were the same drawers introduced in evidence, and were in the same condition as at the time the offense was committed, except that they had been washed, they were sufficiently identified and were properly admitted in evidence. Nor did the fact that the garments were washed before the trial render them inadmissible, since it was the province of the jury to consider their appearance,-and the testimony in regard thereto, and draw their own conclusions.
    Appeal from Osage Circuit Court. — How. R. 8. Ryors, Judge.
    Affirmed.

      Gove & Davidson for appellant.
    (1) The motion to quash the indictment should have been sustained because the indictment was not certified as a true bill by tbe foreman of tbe grand jury. State v. Bruce, 77 Mo. 195; State v. Burgess, 24 Mo. 381; State v. Brown, 181 Mo. Mo. 229; State v. Runze, 105 Mo. App. 327; State v. Mertens, 14 Mo. 95;. R. S. 1899, sec. 2510. (2) The court erred in admitting in evidence tbe drawers claimed to have been worn by tbe prosecuting witness at tbe time of tbe commission of tbe alleged offense, because tbey were not properly identified as being tbe same drawers worn by her at tbe time. Tbe evidence shows that tbey were not in tbe same condition as tbey were on tbe morning after tbe alleged offense was committed.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for tbe State.
    (1) Tbe objection that tbe indictment was not endorsed “a true bill” can not now be considered, as tbe defendant failed to allege in bis motion for a new trial that error bad been committed in overruling bis motion to quash; hence, the point has been waived. All errors occurring during tbe progress of tbe trial must be brought to tbe court’s attention in tbe motion for a new trial. State v. Millikan, 24 Mo: App. 464; State v. Ray, 53 Mo. 345; Carver v. Thornhill, 53 Mo. 285; R. S. 1899, sees. 2688 and 2689. An indictment, with such an omission, is good after verdict and judgment. State v. Harris, 73 Mo. 287. (2) Objection was also made to tbe introduction in evidence of tbe drawers worn by prosecutrix at tbe time of tbe commission of tbe alleged crime. As these drawers were afterwards identified by tbe mother of prosecutrix, it is difficult to see bow any valid objection can be made to their introduction. It has always been held that articles of clothing, worn by prosecutrix at tbe time of tbe commission of a crime of this character, are admissible in evidence. State v. Murphy, 118 Mo<. 14; State v. Duffy, 124 Mo. 10; Hornbeck v. State, 35 Ohio St. 281; G-rimmitt v. State, 22 Texas App. 36; 3 G-reenl. on Evidence, sec. 212; 23 Am. and Eng. Ency. Law, 878; 4 Elliott on Evidence, see. 3107. And defendant’s counsel further objected to the introduction of said drawers in evidence, because they had been washed since that time. But the washing of said garment simply changed its appearance; it did not change its condition. Its admission in a clean, instead of a soiled condition, certainly did not injure the defendant. Mc-Murrin v. Rigby, 80 Iowa 327.
   BURGESS, J.

The defendant, at the October adjourned term of the circuit court of Osage county, was convicted of rape and his punishment fixed at ten years in the penitentiary, under an indictment charging, him with feloniously assaulting and having camal knowledge of a female child, under the age of fourteen yeárs. Defendant’s motions for new trial and in arrest of judgment having been overruled, he appealed.

The date of the alleged offense was August 11,1906-, and the name of the prosecutrix was Minnie Sharp, a child of about ten years, who lived with her parents near Freehurg, Osage county, about a quarter of a mile from the home of defendant. On the date above mentioned the mother of defendant asked the little girl to 1 accompany her to her home and stay with her all night, which she did. Both retired that night, occupying the same bed, the child sleeping with her clothes on. Late that night the defendant came home, went into the room, took the girl out of the bed and carried her out to the hack yard where he had sexual intercourse with her. While the defendant was taking her out in the yard she told defendant that she would tell her father, and defendant said, “If you do I will kill you.” After defendant had accomplished his purpose, the child ran back to the-bed room of Mrs.-Brannan, the defendant following her. Mrs. Brannan awoke, and said, “William, get away from here; why don’t yon sleep in the kitchen?” The little girl remained in bed with Mrs. Brannan the remainder of the night, and went home early next morning and made complaint to her mother. The mother examined the child, and fonnd her drawers torn and bloody and her parts badly inflamed. ■A week later, Dr. Bnechler made an examination-of the child and found her parts inflamed and the hymen ruptured.

Defendant’s mother testified that the child slept with her on the night in question, but she denied all knowledge of the alleged assault, and stated that she was awake several times during the night. The defendant denied having had anything to do with the little girl. He admitted that he came home late and was drinking some that night, and further admitted that he had been convicted of abducting a female under the age of eighteen and had served a term in the penitentiary.

While the record discloses that the defendant, before the introduction of any evidence, filed a motion to quash the indictment upon the ground that it was not certified to by the foreman of the grand jury as a “true bill,” that the court overruled said motion and defendant excepted, it does not appear that any point was made upon this defect in the indictment in the' motion for a new trial, although the court’s attention was called thereto in the motion in arrest. The Attorney-General contends that as the point was not made in the motion for new trial, it is waived.

It is well settled that all errors occurring during the progress of the trial and all matters of exception must be brought to the attention of the court in a motion for new trial; otherwise, they will be considered as waived. [State v. Ray, 53 Mo. 345; Carver v. Thornhill, 53 Mo. 285, and subsequent cases.] In State v. Mertens, 14 Mo. 94, it was held that the statute requiring the foreman of a grand jury to certify, under his hand, that the indictment is a true hill was merely directory, and that after a defendant has been convicted under an indictment not thus certified, it is too late, upon a motion in arrest, to raise the objection. No objection to the indictment in that case was taken until after verdict.

In State v. Burgess, 24 Mo. 381, it is held that the failure of the foreman of a grand jury to certify under his hand an indictment to be a true bill is no- cause for arrest of judgment after trial and conviction, but that it is ground for quashing the indictment before trial. Substantially the same ruling was made in State v. Harris, 73 Mo. 287; State v. Hays, 78 Mo. 600; State v. Runzi, 105 Mo. App. 319.

vIf, as was held in the Mertens case, supra,-the signature of the foreman of the grand jury to an endorsement on an indictment certifying it as a true bill is not an essential part of the indictment, the question arises whether the point as to the action of the court in overruling the motion to quash because the indictment was not indorsed “a true bill” was properly raised by motion in arrest. In the Mertens case the question was. raised by motion in arrest, after verdict, and the question now under consideration was not passed upon or' adverted to further than indicated. In State v. Brown, 181 Mo. 192, Fox, J., speaking for the court with respect to the verification of an information by the prosecuting attorney who presented it, said that the verification was not a part of the information, but a step to be taken in aid of it, and that “a motion in arrest goes only to defects appearing on the face of the indictment or information, and not to an affidavit upon which it may be based, or which merely verifies the charge in the information.”

In State v. Burgess, supra, it is said: “In North Carolina (State v. Cox, 6 Ired. 446, and State v. Calhoon, 1 Dev. & Batt. 374), it has been expressly holden that the endorsement was no part of the indictment, hut that it was the action of the grand jury in returning the bill into court, and the receiving of it there, that rendered it a legal accusation against the defendant, and the same opinion seems to prevail in South Carolina. [State v. Creighton & Bell, 1 Nott & McCord 257.] And although in Chit. Crim. L. 324, it is said that the endorsement, ‘a true bill,’ becomes part of the indictment, and renders it a complete accusation, yet Ford’s case (Yelv. 99), which is referred to as authority, does not seem to warrant the assertion. Indeed, the position is contradicted by the form of the record, which, when formally drawn up, omits all mention of the endorsement, and states in the caption merely that the grand jury present that the accused did, etc., reciting the allegations of the indictment; and this is the principle upon which the want of a proper endorsement is disallowed in arr est of judgment after a conviction. [Burgess v. Commonwealth, 2 Va. Cases 483; Wau-kon-chaw-neet-kaw v. United States, Morris (Iowa) 332; and the cases from North and South Carolina, above referred to.] ”

' In State v. Connell, 49 Mo. l. c. 286, it is said: “In criminal cases, such errors as appear upon the face of the record, or such as may be taken advantage of by a motion in arrest or by writ of error, will be noticed here as a matter of course ,• but as to exceptions taken in the progress of the trial, and as to motions for a new trial and in arrest, which can become a part of the record only by bill of exceptions, the same rules are applicable alike in criminal and civil cases.” In 2 Elliott’s General Practice, sec. 996, it is said that a motion in arrest can only be maintained for a defect apparent upon the face of the record, and' such is the general rule.

If, as was held in the Brown case, the verification of an information by the prosecuting attorney presenting the same is not part of the information, it would seem by analogy that the certificate of the foreman of a grand jury to an indictment preferred by such grand jury is not part of the record proper. There is no difference in principle. This being the case, it is clear, from the authorities, that the action of the court in overruling the motion to quash the indictment was matter of exception which should be taken advantage of in the motion for a new trial andi not in the motion in arrest.

Another contention is that the court erred in admitting in evidence the drawers claimed to have been worn by the prosecuting witness at the time of the commission of the alleged offense because, as contended, they were not properly identified as the drawers worn by the prosecuting witness at the time. The mother of the child testified that she examined the child’s drawers the morning after the offense was committed and found them “torn to pieces and some blood stains” thereon. She further testified that they were the same drawers introduced in evidence, and were in the same condition then as they were the morning after the offense was committed, when she took them off her daughter, except that they had been washed. No further identification was necessary. It has been frequently held that articles of clothing worn by a prosecuting witness at the time of the commission of an offense of this character are admissible in evidence. [State v. Murphy, 118 Mo. 7; State v. Duffy, 124 Mo. 1.] Nor was there error in admitting the garment in evidence upon the ground of its having been washed before the trial. It was the province of the jury to consider its appearance and the testimony in regard thereto and draw their own conclusions. [McMurrin v. Rigby, 80 Iowa 322.]

Finding no reversible error in the record, we affirm the judgment.

All concur.


text:
    THE STATE v. J. W. BAKER, Appellant.
    Division Two,
    November 19, 1907.
    OBTAINING PROPERTY UNDER FALSE PRETENSES: Defective Information. Information, set out in the opinion, for ob- . tabling property under false pretenses, held fatally defective.
    Appeal from Christian Circuit Court. — How. John T. Moore, Judge.
    Reversed and remanded.

      George W. Thornberry and Edward J. White for appellant.
    ■ The demurrer to the original information and the motion to quash the amended information should have been sustained, as both informations show on their face that the property charged to have been obtained is not the character of property that can be the subject of the offense charged under the statute. R. S. 1890', sec. 1927; State v. Bryant, 90 Mo. 534; State v. Gillmore, 98 Mo. 206; State v. Hayden, 31 Mo. 35; State v. Lemon, 46 Mo. 375; State v. Etchman, 184 Mo. 193; State v. Eno, 109 N. W. 119; 2 Bishop’s New Cr. P'roc., sec. 733; People v. Williams, 35 Cal. 671; 2 Bishop’s New Cr. Proc., secs. 699, 700; State v. Stowe, 132 Mo. 199; State v. McNerny, 118 Mo. App. 66.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    After a careful examination of the amended information and the statute upon which it is bottomed, as well as various authorities on the subject, counsel for the State are forced to the conclusion that said information does not charge the defendant with any criminal act.
   FOX, P. J.

This cause is now pending in this court upon appeal by the defendant from a judgment of conviction in the Christian Circuit Court for obtaining property under false pretenses. The amended information, which was duly verified, omitting formal parts, was as follows:

“Gr. Purd Hays, prosecuting attorney within and for the county of Christian and State of Missouri, for his amended information, informs the court under his official oath and upon his best information and belief that J. T. Small, P. L. Pierpoint and J. W. Baker, on or about the 20th day of June, A. B.1906, at the county of Christian and State of Missouri aforesaid, did then and there feloniously, designedly, knowingly and fraudulently, with the intent then and there to cheat and defraud one B. F. Ross, did then and there falsely represent, pretend and state to the said B. F. Ross that the defendant, J. T. Small, was the sole owner of a certain stock of goods and merchandise, located in the town of Sparta, Christian county, Missouri, that said stock of goods and merchandise were of good saleable condition and value, that the said J, T. Small, aforesaid, was the sole owner and in charge of said stock of goods and merchandise and that he was enjoying and commanding the best retail. trade of any general merchandise store in the town of Sparta, Christian county, Missouri; that the cash sales of the said J. T. Small, aforesaid, were averaging from fifteen dollars to two hundred dollars per day; that the wholesale price and first cost of the stock of goods and merchandise aforesaid could be readily ascertained and determined by a private cost mark thereon; that the stock of goods and merchandise aforesaid would invoice not to exceed in the aggregate the sum of $6,000, and that the defendant, J. T. Small, was the sole owner of said stock of goods and merchandise aforesaid and that P. L. Pierpoint and J. W. Baker were merely agents and brokers of the said J. T. Small, to sell said stock of goods and merchandise aforesaid, and that the said B. F. Ross, believing and relying upon the said false pretenses and representations so made by the said J. T. Small, P. L. Pierpoint and J. W. Baker as aforesaid to be true, and being deceived thereby, was induced by reason thereof to then and there pay, deliver and transfer to the said J. T. Small, P. L. Pierpoint and J. W. Baker all his right, title and interest in and to two certain hotels, located in the town of Turón, in the county of Reno, in the State of Kansas, of the value of $5,500 as and for part of the purchase price of said stock of goods and merchandise located in the town of Sparta, in Christian county, Missouri, aforesaid; and the said B. F. Ross then and there did pay, deliver and transfer all his right, title and interest in and to these hotels aforesaid to the said J. T. Small, P. L. Pierpoint and J. W. Baker, as and for part of the purchase price of the goods and merchandise aforesaid, and the said J. T. Small, P. L. Pierpoint and J. W. Baker did then and there feloniously, wilfully, designedly, knowingly and fraudulently, in the manner aforesaid and by means of the false and fraudulent representations aforesaid, did then and there obtain of and from the said B. F. Ross, his said right, title and interest in and to the hotels aforesaid, of the value of .$5,500, the property of the said B. F. Ross, then and there to feloniously, wilfully, designedly, knowingly and fraudulently to cheat and defraud of the same. Whereas in truth and in fact the said J. T. Small was not then and there the sole owner of the said stock of goods and merchandise aforesaid, located in the town of Sparta, Christian county, Missouri; and whereas in truth and in fact said stock of goods and merchandise were not of good seasonable condition and value; and - whereas, in truth and in fact, the said J. T. Small, aforesaid, was not the sole owner, and was not wholly in charge of the said stock of goods and merchandise; and whereas, in truth and in fact, the said J. T. Small was not enjoying and commanding the best retail trade of any general merchandise store in the town of Sparta, Christian county, Missouri; and whereas, in truth and in fact, the cash sales of the said J. T. Small aforesaid were not then and there averaging from fifteen dollars to two hundred dollars per day; and whereas, in truth and in fact, the wholesale price and first cost of the stock of goods and merchandise aforesaid could not be readily ascertained and determined by a certain private cost mark thereon; and whereas, in truth and in fact, the stock of goods and merchandise aforesaid did then and there invoice to exceed the sum of six thousand 'dollars, and whereas, in truth and in fact, the said J. T. Small was not then and there the sole owner of the stock of goods and merchandise aforesaid; and that P. L. Pierpoint and J. "W. Baker were not then and there merely agents and brokers to sell said stock of goods and merchandise aforesaid, but were in truth and in fact co-partners and joint owners with the said J. T. Small aforesaid. All of which these defendants, J. T. Small, P. L. Pierpoint and J. W. Baker, then and there at the time well knew, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of ” State.”

The sufficiency of this information was assailed by the appellant in the trial court in a motion to quash the same, which motion was by the court overruled. The trial proceeded and the defendant was convicted, and his punishment "assessed at five years imprisonment in the penitentiary of this State. In view of the confession on the part of the representative of the State of fatal error in the information, we deem it unnecessary to burden this opinion with a statement of the evidence developed at the trial or the instructions given by the court based upon such evidence.

The statute upon which this information is predicated, section 1927, Revised Statutes 1899', provides that, “Every person who, with intent to cheat or defraud another, shall designedly, hy color of any false token or writing, or by any other false pretense, obtain the signature of any person to any written instrument, or obtáin from any person any money, personal property, right in action or other valuable thing or effects whatsoever, and every person who shall, with the intent to cheat and defraud another, agree or contract with such other person or his agent, clerk or servant for the purchase of any goods, wares, merchandise or other property whatsoever, to be paid for upon delivery, and shall, in pursuance of such intent to cheat and defraud, after obtaining possession of any such property, sell, transfer, secrete or dispose of the same before paying or satisfying the owner or his asrent, ■clerk or servant therefor, shall, upon conviction thereof, be punished in the same manner and to the same extent as for feloniously stealing the money, property or thing •so obtained.”

The Attorney-General, in his presentation and submission of this cause to the court, with commendable frankness, says: “After a careful examination of said amended information and the statute upon which it is bottomed, as well as various authorities on the sub-,3 ect, counsel for the State are forced to the conclusion that said information does not charge the defendant with any criminal act;” and finally concludes with this ■statement: “As the amended information, the one upon which the defendant was tried and convicted, is fatally defective, counsel for the State confess error, •and hereby consent that this cause be reversed. ’ ’

It is sufficient to say that we have carefully analyzed the allegations of the information, as well as the section of the statute upon which it is bottomed, and in our opinion the conclusions as reached by the Attorney-General are clearly correct. Hence, to the end that, if a state of facts exists in connection with the transaction to which the information relates, which warrants a criminal prosecution, the State may take further action if it so desires, the judgment of the trial court will be reversed and the cause remanded.

All concur.


text:
    THE STATE v. JOHN BERRY, Appellant.
    Division Two,
    November 19, 1907.
    NO BILL OF EXCEPTIONS. Where no hill of exceptions is filed, ' and the record proper is free from error, the judgment -will be affirmed.
    Appeal from Camden Circuit Court. — Hon. Wülicm H. Martm, Special Judge.
    Affirmed.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
   GANTT, J.

At the February term, 1905, of the Camden Circuit Court, the prosecuting attorney of said county filed his information, duly verified, wherein he charged the defendant, Berry, with having, on the 22d day of October, 1904, wilfully, feloniously, deliberately, premeditatedly and of his malice aforethought killed and murdered David A. Eidson by shooting him with a revolver. Defendant was duly arraigned1 and pleaded not guilty, and at the October term, 1905, was put upon his trial and found guilty of murder in the second degree and sentenced to the penitentiary for ten years. From that sentence he perfected! an appeal to this court, but filed no bill of exceptions. As we have nothing but the record proper before us for review, we have considered the information, arraignment, empanneling of the jury, the return of the verdict and the sentence of the court, and find no reversible error therein, and it follows that the judgment must be and is affirmed.

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