author: BURGESS, P. J.

text:
    THE STATE v. AUSTIN FRANCIS, Appellant.
    Division Two,
    December 4, 1906.
    1. CIRCUMSTANTIAL EVIDENCE: Sufficiency. Where the evidence of the State is entirely circumstantial, in order to justify a verdict of guilty the facts and circumstances should be consistent with each other and with the guilt of defendant and inconsistent with any reasonable theory of his innocence. And tested by this rule, the verdict in this case cannot stand.
    2. -: -: Murder: Criminal Agency of Defendant: Poison. Where the charge is that deceased came to her death as the result of poison administered to her by defendant, it is not only essential that the crime itself be proved, that is, that deceased came to her death as the result of poison administered, but that her death was the direct result of the criminal agency of defendant. And the death of deceased being undisputed, circumstantial evidence is sufficient to establish defendant’s guilty agency therein if it is of such a character as to leave the inference of defendant’s guilt the only reasonable inference to be deduced from the facts disclosed at the trial. But even though the jury may be authorized to find from the evidence that the cause of deceased’s death was carbolic acid poison, yet to justify a verdict of guilty against defendant the evidence must point with conclusive force to that result and that defendant administered the poison to her.

      3. ;-: Murder: Pregnancy of Deceased, Evidence tending strongly to show that defendant was responsible for the pregnancy of deceased, falls far short of • establishing the f acfi that he was her murderer, although it is clear that her death was caused by carbolic acid which she swallowed.
    4. MOTIVE. It does not follow that there was no motive because none was made apparent, nor is the absence of any apparent motive conclusive of defendant’s innocence, but it is a very important factor as tending to show his innocence.
    5. -: Evidence of Motive. The evidence tended strongly to show that defendant had maintained illicit relations with deceased, a girl fifteen years old, who at the time of her death • ’ had been two months pregnant, and that he had a few times at least met her after dark at the bridge where her dead body was found, in' her hand the cup which she had taken from her nearby home the night before, her death being due to carbolic acid swallowed. But there was no evidence that he had ever obtained for her or furnished her the poison which caused her death, or that she or he knew that she was pregnant, but on the other hand the evidence tended to show that she thought she had taken cold which had caused her monthly periods to cease, and that she was taking some simple patent medicine to restore her normal condition. They had no quarrel, but . seemed to be' on the very best of terms. There was no evidence that he desired to break off his relations with her; on the contrary, it clearly shows that he desired their continuance. Held, that there was no apparent motive shown why he should have murdered her.
    6. ALIBI: Impeached Witness. Where it is conclusively established that a witness who swore that he saw defendant the night of the alleged homicide, at the bridge where her dead body was found next morning, was not himself there, and that he either was mistaken as to the date or committed wilful perjury, his testimony is, in legal contemplation, the same as no testimony at all; and cannot be considered as substantial evidence tending to show defendant’s guilt.
    ' 7. MURDER: Conjecture and Suspicion. Where at most the evidence adduced only raises a suspicion of guilt against the defendant, no verdict of guilty can be permitted to stand.
    8. -: -: Debauching Deceased. Proof that defendant debauched deceased is not proof that he afterwards murdered her. .
    9. -: Character of Proof. Circumstantial evidence must always be scanned with great caution and can never justify a verdict of guilty,, especially of murder in the first degree, unless the circumstances in proof are of such a character and tendency as to produce upon a fair and unprejudiced mind a moral conviction of the guilt of the accused beyond all reasohable doubt, and be absolutely inconsistent with his innocence.
    Appeal from Jackson Criminal Court. — Eon. Jno. W. Wofford, Judge.
    Reversed.

      Eairgrove S Stubbs, Willis E. Leavitt and Oliver L. Wrought on for appellant.
    (1) The information is not sufficient to charge murder in the first degree by poisoning because: (a) It •does not change that defendant intended or contrived to kill deceased, (b) It does not charge that deceased did not take the poison voluntarily and with suicidal intent, (c) It does not negative the fact that the poison was administered to deceased in aid of self destruction, (d) It does not charge that deceased' did not take the poison knowing it to be poison, and of her own volition, (e) The information should charge killing by poison and other means in separate counts. Sec. 1822, R. S. 1899; State v. Wagner, 78 Mo. 647; State v. McCollum, 44 Mo. 344; State v. Evans, 128 Mo. 406; Ann v. State, 11 Humph. 159 ; State v. Yarborough, 77 N. C. 524; Scheffer v. State, 22 Neb. 557; Bouts v. State, 8 O. St. 98; Hogan v. State, 10 O. St. 459; Robbins v. State, 8 G. St. 131; Snyder v. State, 59'Ind. 105; State v. McCormick, 27 Iowa 402; State v. Curtis, 70 Mo. 599. (2) The court erred in permitting witness Raymond Lyming to give any testimony because of his tender years, and his voir dire examination showed him to be incompetent. (3) There is a total failure of proof because the information charges in the same count the crime to have been committed by means of poisoning and by choking and strangling, and by a knife and a large heavy stone, while the evidence1 is that death resulted from carbolic acid poisoning and from no other cause.. Phillips v. State, 68 Ala. 369; People v. Hyndman, 99' Cal. 1; Jordan v. People, 19' Col. 417; People v. Bemis, 51 Mich. 422; Newcomb v. State, 37 Miss. 383; State v. Brown, 106 N. C. 645; Williams v. State, 35 0: St. 175; Com. v. Buccieri, 153 Pa. St. 5351. (4) The court erred in admitting any evidence to show that deceased was pregnant, as a motive for defendant to commit the crime charged, without it first having been shown, that defendant knew of her condition. Stokes v. People, 53 N. Y. 164; State v. Shelton, 64 Iowa 333; Son v. Territory, 5 Okla. 526; Pence v. Com., 51 S. W. 801; Wigmore on Evid., sec. 389. (5) The court erred' in admitting- any evidence the purpose of which was to show criminal intimacy between defendant and deceased without first requiring the State to establish the corpus delicti. Wharton’s Crim. Ev. (9 Ed.), secs. 47-48, pp. 48-49. (6) The evidence is not sufficient to sustain the verdict and judgment of the court, (a) The evidence fails to establish the corpus delicti. Wills on Circum. Ev. (Ed. 1905), p. 297; State v. Dickson, 78 Mo. 438; State v. Jones, 106 Mo. 302; State v. Knolls, 901 Mo. App. 240; State v. Baker, 144 Mo.. 323; State v. White, 189 Mo. 339; State v. German, 54 Mo. 526; Yalooski v. State, 82 Wis. 580'; State v. Gragg, 122 N. C. 1062; Abbott v. Com., 42 S. W. 344; State v. Millmeier, 102 Iowa 692; Harris v. State, 19 Am. St. 837; Gay v. State, 60 S. W. 771; State v. Billings, 81 Iowa 99; Monk v. State, 27 Tex. App. 4501. (b) The evidence fails utterly to establish the guilt of the defendant or to connect him in any way with the crime charged, and indicates that the jury were actuated by passion and prejudice. State v. Morney, 92 S. W. 1117; State v. Crabtree, 170 Mo. 642; State v. Nesenhener, 164 Mo. 461; State v. Dickson, supra; State v. Jones, supra; State v. Knolls, supra; State v. Gragg, supra; State v. May, 142 Mo. 152; State v. Heusack, 189 Mo. 295; State v. Glakn, 97 Mo. 692; Tilley v. Com., 90 Va. 99; State v. Huff, 161 Mo. 487; State v. Bartlett, 170* Mo. 658. (c) The evidence fails to establish, and there was no attempt to prove, that defendant knew carbolic acid was a deadly poison. State v. Yarborough, 77 N. O. 524. (d) There is not a scintilla of evidence that defendant was alone with deceased at any time within such time that he might have been the father of her unborn child, and in the absence of such proof there can be no* inference that he. was responsible for or knew of her pregnancy.

      Herbert S. Hadley, Attorney-General, and N. Ti Gentry, Assistant Attorney-General, for the State.
    (1) The information, which was duly verified by the affidavit of the prosecuting attorney, is sufficient in form and substance. It charged that defendant killed deceased by administering to her a deadly poison, by choking and strangling her, by giving to* her a mortal wound with a knife and by giving to her a mortal wound with a large rock. It may readily be seen that poison may be administered to a person, and after becoming stupified by reason thereof, the person may be choked, wounded with a knife and wounded with a rock; and all of said means contribute towards the killing. In fact, the evidence in this case fully justifies the conclusion that such happened on that evening near the bridge, when Winona Newton was murdered. That two or more methods of killing- the deceased may be properly charged in one count in the indictment is now well settled. Wharton on Pleas and Precedents, sec. 129; State v. Barrington, 95 S. W. 258. (2)- No error was committed in allowing- the State’s witness to testify to the fact that the deceased stayed all day at the defendant’s home while defendant’s- mother was away; that they were there together all day; and that she heard deceased say “don’t” to the defendant. It is true this evidence did not prove that the defendant murdered the deceased, but it was a circumstance which the jury had a right to consider; and it answered one of the argumeats now made by appellant’s counsel, that there is no proof that defendant and deceased were ever together at any unusual time or place. It was unusual for defendant and deceased to spend the day together at defendant’s home, in the absence of defendant’s mother; and this circumstance showed that an intimacy existed between them. However, after hearing the evidence,. the trial court ordered that the same be stricken out; so the error was cured, if error had been committed. (3) No error was committed by the trial court in permitting State’s witness, Raymond Lyming, to testify, he being of tender years. Before giving his evidence, counsel for the defendant, and also the court, asked him various questions, and the court was satisfied that he was not only intelligent, but truthful. Such a matter' must be left to the sound discretion of the trial court, and this court can not say that, in this instance, there was an abuse of that discretion. Rapalje on Law of Witnesses, sec. 7; R. S. 1899, sec. 4659'. (4) Again, counsel for the appellant assume a contradictory position when they object to State’s witness J. D. King testifying that he saw defendant in company with a little young woman about six o ’clock one evening, going south on Baltimore avenue; and that the young woman had brown hair. In another place in their argument counsel insist that there was no proof that de-fendant and deceased were seen together at a time when they could have been guilty of adultery; and then they object to' proof showing that they were together alone, at different times and different places. As heretofore suggested, this evidence was proper as tending to show an intimacy between them — an intimacy which existed in opposition to the father’s wishes, which wishes were well known to the defendant. (5) It is impossible to see how even ardent and sympathetic counsel can say that there is no evidence- to support the verdict of the jury. The intimacy that existed between the defendant and the deceased, the length of time that said intimacy .existed, the visits that she paid defendant, the clandestine meetings that took place between' them, the efforts that defendant made to see deceased, after dark at the bridge, at the coal shed and elsewhere, his repeated invitations to her to meet him there, their correspondence, the contents of the letters, the nse of the fictitious names, the pregnant condition of deceased, the fact that deceased was calling on the defendant for money with which to go to' see a physician and to buy medicine, and the fact that the defendant knew that the deceased had passed two of her monthly periods, conclusively show that the defendant was the one responsible for the ruin of this little girl. In this connection, it should be remembered that the defendant said to a friend of his, “I have got to hurry up and meet the kid [referring to the deceased] between five and six; poor Winona, she don’t know right from wrong, but she is a damn good kid to be with. ” In his written confession the defendant stated that his mother knew of the sickly condition of the deceased, that his mother furnished her with money and with medicine, and yet there is not a particle of evidence that tends to show that the mother ever heard of deceased’s condition or ever told her or wrote to her what medicine to use. If the mother had learned any fact from deceased, and if the mother had sent her any money or medicine, it is strange indeed that that mother remained silent on the subject when her only son was on trial for his life. Being responsible for her ruin, it was natural that the defendant desired to cover up his first crime, and, like many others before him, he resorted to murder. It can, therefore, be readily understood why defiendan! was continually inviting the deceased to meet him at nights, away from her home; and also why the defendant was hiding around in the Newton coal shed and elsewhere in the dead hour of the night. And it is also easy to understand why the defendant failed to say or do anything to deceased on those nights because her father or her brother or her sister was with her. The “red-ink letter” invited the deceased to meet defendant at the very bridge where her dead body was after-wards found; and that letter invited her to meet him alone, and also stated that he had some medicine for her. In accordance with that letter, the defendant went to that bridge late on the afternoon of November 3rd, and, like most other men about to commit a crime, he tried to divert suspicion from himself. He told Ed Marcus that he was the bridge inspector, and pointed to the Newton house and asked who lived up there. The deceased and her sister were in the act of getting supper, when the deceased walked out on the porch, remaining there for a while. At this time Baymond Lyming saw defendant standing on that bridge, saw him jump down and conceal himself as a woman drove by in a buggy, afterwards saw him wave his hand as he looked! toward the Newton house and saw the deceased sitting on the back porch of said house. The deceased arose, went into' the house, procured a cup and left the house, casting her eyes towards her father as she walked out of the room. As it was then getting dark, as the weather was cold and as deceased had been sick all day, it can not be supposed that she left that house on a pleasure trip, especially at the time when she was needed, or soon would be needed, to assist in the preparation of the evening meal. The finding of her dead body the next morning, the cup, the empty bottle and the poisonous fluid in her stomach show that she went to that bridge, went in response to the invitation from the defendant, went there alone, went there for the purpose of taking medicine and that she procured the medicine which the defendant intended that she should taire. Under the facts disclosed in this case,,there is no- occasion to suggest suicide and the accidental falling of that large rock on the body of deceased. The rock could not have made the finger marks on her neck, and the rock could not have made the cut places on the face and head, testified to by Dr. Parker. The presence of the defendant at the very bridge where he invited deceaséd to meet him, his presence there a few moments prior to the time when deceased mysteriously left her father’s home, and his waving to her to come, when taken in connection with his written invitation to- her to meet him there, and to meet him alone, that he had some medicine for her, the defendant’s motive for the killing and the manner in which death was produced conclusively show that the defendant was the guilty party. Clever-ins v. Com., 81 Va. 787. Defendant undertook to explain his presence at and near the Newt'on home after dark by saying that he was hunting a negro who was charged with larceny; but never produced any witness to corroborate him in this regard, and could not even give the name of the negro-, nor the article he was said to have stolen, nor the person from whom he took it. True, the defendant introduced some evidence tending to prove an alibi; which, if believed by the jury, might have been sufficient to justify his acquittal. But the jury, whose province it was, disregarded his evidence on that-subject; and, when it is remembered that defendant’s mother knew more of his whereabouts on that afternoon and evening than any one else, and that she remained silent at such an important time, we áre forced to- the conclusion that the jury properly disregarded the alibi theory. But even if there is evidence tending to prove an alibi, the appellate court will affirm the judgment where there is substantial evidence!, as in this case, tending to support the verdict. State v. Harvey, 147 Mo-. 69; State v. Smith, 190 Mo. 704.
   BURGESS, P. J.

The defendant was charged in the information with murder, in the first degree, committed upon Winona Newt-on by administering'to her carbolic acid, a deadly poison; and by choking and strangling her, and with assaulting her with dangerous and deadly weapons, to-wit, a knife and a large heavy stone. Upon arraignment lie pleaded not guilty. A trial was had in the criminal court of Jackson county, at' which he was convicted1 by the verdict of a jury of murder in the first degree. Prom the judgment of conviction and sentence of death and from order denying him a new trial, and in overruling his motion in arrest, defendant has appealed to this court.

Defendant contends that the evidence did not warrant the verdict and that numerous errors were committed upon the trial, which entitled him to a reversal of the judgment upon the ground of the want of evidence to justify the verdict, and if this contention be not sustained, that the judgment be reversed and a new trial awarded because of numerous errors committed upon the trial.

Prom an examination of this enormous record we are convinced that in order to' reach a decision in the case it will be only necessary to pass upon one question presented by the appeal, and that is the sufficiency of the evidence to sustain the verdict. The evidence of the State was entirely circumstantial and in order to have justified the verdict the facts and circumstances in evidence should be consistent with each other' and with the guilt of defendant and inconsistent with any reasonable theory of defendant’s innocence.

The theory of the State was that the defendant had been criminally intimate with the deceased resulting in her pregnancy, and in order to cover up his crime administered to her carbolic acid, a deadly poison, from the effects of which she immediately thereafter died. It was therefore necessary for the State to prove, the body of the crime, or the fact that a murder had1 been committed by proof of the death of Winona Newton by the criminal agency of the defendant. The death of Winona Newton being undisputed, the question for our consideration is whether the evidence was so strong and convincing as to bring the case within the rule announced, and that her death was the direct re-suit of the criminal act of the defendant. Circumstantial evidence was sufficient for that purpose if it was of such a character as to leave the inference of guilt the only reasonable inference to be deduced from the facts disclosed by the evidence. In order to justify the verdict of guilty, however, if the jury found the cause of death to have been' through the administration of carbolic add poison, the evidence must have pointed with conclusive force to that result and that the defendant administered the poison to the deceased.

Winona Newton was at the time of her death about fifteen years of age, and rather small for her age. She lived with her father, three brothers and two younger sisters in the suburbs of Kansas City, near 55th street and College avenue. The mother had been declared insane and sent to the lunatic asylum prior to the commission of the crime. The defendant was a single man, twenty-one years old, and by occupation a railroad detective.

A short distance from the Newton home was a bridge over a little creek; this' bridge was situated1 near 55th street and Walrond road. Prior to living at the above-named place the father of the deceased resided near the home of defendant, or, rather, the home of defendant’s mother. Defendant was apparently on friendly terms with deceased, especially after the time that she worked for and waited on defendant’s mother during one or two^ sick spells. After deceased’s father moved out on 55th street, deceased and defendant corresponded, often not signing their .true names to the letters. Deceased had been taking medicine, and desired defendant to give her money with which to employ a physician. The letters indicate that defendant had been meeting deceased at night, clandestinely, and had failed to meet her after dark on one or two occasions. The evidence further showed that defendant went out to this little bridge twice after dark, and met deceased and her younger sister once. That defendant admitted that he had been back of deceased’s house and near the coal shed one night'when she and her father passed by. On other occasions, shortly before her death, deceased visited the switch yards, where defendant was employed, .and spent considerable time in company with defendant, going into a house alone with him. To other railroad men defendant stated that deceased was his sister, his sister-in-law, his niece, his. cousin and his girl. Deceased was in poor health, having missed her menstruation twice; she suffered a good deal, and took such medicines as Peruna, Mountain Balm and Lydia E. Pinkham’s Female Complaint. On Friday, November 3,1905, deceased spent most of the day in the house, lying down on a couch; and her father and one brother spent most of the day doing some work in the cellar. About 5:30, p. m., just before dark, deceased’s sister, Ada, commenced to get supper, and one of the boys suggested to let deceased cook some corn starch. Deceased got up and walked out on the back porch, where she remained for about five minutes, and then returned to the kitchen. Ada suggested to the brother to get up off of the lounge and let deceased lie down, but deceased replied that she did' not care to lie down. Deceased then got a cup and put it under her arm, got a fascinator and placed it around her neck, looked at her father, and at Ada, and walked out of the kitchen onto the back porch. In a little while the corn starch was ready to be taken off of the stove; and Ada stepped to the porch and called deceased, but received no reply. After waiting still longer, Ada went and called again; she returned to the house and told her father of her inability to find deceased. Then one of the boys was sent out in the yard; he looked around the coal shed, privy and back yard, and returned with the word that deceased could not be found. Then the father and one of the boys went out with a lamp, made a careful examination of the premises, and went to two of the neighbors, met two or three people on the street, and went up to' á store. After making there inquiries they returned and had supper. At ten o’clock the other son returned from his work; then the whole family went to bed. The next morning the body of the deceased was found southeast of and near the little bridge referred to, with a large stone on top of her head. There were finger marks on the throat of deceased, a wiound on the forehead, one on the cheek and one over the eye. There was also a clean cut on each side of the face, made by a knife. In the mouth was the odor of carbolic acid, and an ounce and a half of that liquid was found in her stomach. The empty cup which deceased' took from home was found on the ground near her dead body. A further examination showed that deceased was pregnant, and had. been in that condition for about two months.

One of the State’s witnesses, named Ed Marcus, testified that he crossed that little bridge just before dark that evening, saw defendant standing there, and that he stopped and talked with defendant, he knowing defendant by name. The witness noticed that defendant was looking around at the bridge very closely, and asked defendant if he was the bridge inspector, defend-' ant replying that he was.' Defendant pointed to the Newton house and asked Marcus if he knew wlm lived in that house; to which Marcus replied that he (defendant) went with a girl up there enough to know who lived in that house: Marcus stated that he then passed on, leaving defendant still standing on that bridge; he also stated that he noticed a horse and buggy standing close to a fence near the bridge.

Another witness, Fred Grubb, testified that he passed near that bridge about that time, saw defendant, and recognized him; that he saw deceased come out on her back porch and sit down on the edge of the porch; that defendant waved to her, and deceased' got up and went back into the house.

Defendant was arrested, and in Ids pockets were found letters written by deceased to defendant, and one letter written by defendant to deceased, wbicb he bad never mailed. In bis statements to tbe police officers and to tbe prosecuting attorney defendant stated tbat be did not know tbat Winona Newton was dead; tbat be was not out there tbat afternoon, and knew nothing about it. He also admitted writing a letter to deceased in red ink, but claimed tbat all of the letters tbat he wrote to' her were suggested by letters tbat be received from her; and tbat all of tbe money tbat be sent to her was sent because be thought bis mother owed her for work. Defendant admitted tbat be bad given defendant some money to buy shoes with, and also to buy medicine with; tbat deceased told defendant’s mother tbat she bad been wading in tbe creek and bad missed her monthly sickness; tbat bis mother prescribed for her, and told her tbat medicine would bring her around all right. Tbe defendant further said tbat on bis pay day be went over to meet deceased at tbat bridge, intending to give her some more money, and that be met deceased and her little sister; tbat be then gave deceased fifty cents to-pay for mending her shoes. He also admitted writing letters to deceased, wbicb be signed “Jesse,” because be knew her father did not allow her to receive letters from a man. Defendant further admitted that bis mother bad told him tbat deceased was suffering with blood poisoning, and tbat deceased” bad talked to bis mother about medicine for that trouble. In these statements defendant said tbat be was not out at tbat bridge on tbe night tbat deceased was murdered, but was with bis mother at supper, and then went with bis mother to tbe residence of a family named Jacobe, where they spent tbe evening.

This letter in red ink was read by Ada Newton, a sister of deceased, who< testified to its contents as follows : “Where in tbe wide world have you been? Meet me at tbe bridge; meet me alone; I have some medicine for you. If you don’t meet me send Ada, and tell me wihy you d'on’t meet me. Kid, I have some money for you. By, by, Dear.” (Signed) “Jesse.” Ada Newton further testified that she was acquainted with and recognized this letter as being in defendant’s hand writing. That this letter was given to her by the postman, and she gave it to and saw deceased read it; the witness reading it over deceased’s shoulder. After reading it deceásed burned the letter. For several days prior to receiving said letter, deceased had been away from home, and had been staying with the Matney family, where there had been a death; this was in the latter part of October, 1905.

The night watchman, of the telephone exchange testified to having ten or twelve calls from the defendant on the night of November 3rd; that defendant told him once that he was at the pesthouse, then that he was at the dog pound, then that he was at the police station, and finally said that he did not believe that his little brown haired girl and he were on friendly terms any longer. This witness had calls from defendant till after one o’clock that night; and also heard three or four ladies talking at the same ’phone with defendant. In October, 1905, .two1 witnesses testified to overhearing a conversation between defendant and another man, in which defendant said, “I have to hurry up and meet the kid between five and six o’clock; poor little Winona, she isn’t very old, she don’t know right from wrong; but she is a Grod damn good kid to stay with. ”

On behalf of the defendant, the evidence tended to prove an alibi; he introduced several witnesses who told of his whereabouts during the afternoon of November 3rd, and several who testified that the defendant was at the Jacobes’ after supper. These witnesses testified that the defendant came to the Jacobs house in company with the defendant’s mother. His mother did not testify. The defendant took the stand and denied all knowledge of the murder of Winona Newton, and denied ever having sexual Intercourse with her. There was also some evidence introduced contradicting and tending to- impeach some of the State’s witnesses.

That Winona Newton died from the effects of carbolic acid poison is conclusively shown by the evidence, but as to whether administered by her own hand or by some other person, especially by the defendant, is a question demanding the most serious and careful consideration. The intimacy that had existed between the defendant and the deceased for so long a time, the visits that she made him, the clandestine meetings that took place between them, the repeated requests made by him for her to meet him, the contents of the letters that were found upon his person when arrested, the contents of the letter written with some red liquid, the giving her money upon different occasions to- pay for mending her shoes and the purchase of medicines, her appeal for money with which to get a doctor, his statements made while under arrest, his remark to- a friend of his some time prior to the homicide that “I have got to hurry up and meet the kid [referring to- deceased] between five and1 six; poor Winona, she don’t know right from wrong, but she is a damn good kid to be with, ’ ’ and the fact that there was no evidence that she associated with any other man, tends strongly to show that he was responsible for her unfortunate condition, but this falls far short of establishing the fact that he was her murderer. There was no evidence that he had ever obtained for or furnished her with the poison causing her death, or that he or she ever knew that she was pregnant at the time of her death, but upon the other hand the evidence tended to show that she- thought she had taken cold, which had caused her monthly periods to cease, and that she was taking such medicine as she could procure in order to restore her normal condition. They had no quarrel but seemed to be upon the best of terms. WTiat motive then could he have had in murdering her? There is not a scintilla of evidence in the record tending to show that he had any desire to break off his alliance with her; upon the contrary the evideuce clearly shows that he desired its continuance. There was therefore no apparent motive for the homicidal act by defendant, and while it does not follow that there was no motive because none appeared, and this is not conclusive of defendant’s innocence, yet it is a very important factor in this case, as tending to show his innocence. [State v. David, 131 Mo. 380.]

Much stress' is laid upon the fact that in the £ £ red ink letter” written by the deceased to meet defendant alone at the bridge where the dead body was found, it was stated that he “had some medicine for her.” The letter was written in October before the homicide, and in addition to asking the deceased to meet him at the bridge, asked her if she could not meet him to send her sister, Ada, who was then about twelve years of age. There is no evidence whatever tending to show that the medicine which defendant then had for the deceased was poisonous — upon the other hand it tends rather to show that it was not poisonous, otherwise he would not have intended to send it by her sister. It is said for the State that in accordance with that letter, defendant went to that bridge late on the afternoon of November 3rd, and like most other men about to commit a crime he tried to deflect suspicion from himself. But that letter was written in the month of October, and in it defendant asked deceased to meet him on the following Wednesday or Thursday evening, while the homicide was committed on the night of the third day of November, which was Friday. It does not, therefore, tend to show that defendant was ever at the bridge on the evening of the night of the murder.

One Ed Marcus, a witness for the State, testified that he saw the defendant at the bridge late in the evening of the 3rd of November, that defendant told him he was the bridge inspector, but he was so completely impeached, that he was unworthy of belief. Indeed the evidence upon the part of the defendant shows eonclusively that he was not at the bridge upon that evening, but was elsewhere.

Adelbert Myers, a witness, says this Marcus boy was at work for him on that day, and was with him all day until about half past five o ’clock when he sent him to his (Myers’) home; that when he, Myers, reached home about six or half past six o’clock, the boy was there and ate supper with his family, and after supper he and his wife, with this boy, went, in company with Martin Ragan and his wife, to the theatre, where they remained until late at night, when the boy returned with them and stayed at Myers ’ home all night. This testimony is corroborated by Mrs. Myers, who says the boy reached her home about half past five o’clock in the evening, brought their horse from the blacksmith shop, where he had been shod, and the boy remained at the house until her husband reached home, had supper with them and went with them to the theatre, in company with the Ragans. Martin Ragan and his wife both say Mr. and Mrs. Myers, with the Marcus boy, reached their house about 7:30 o ’clock in the evening, and they all went to the theatre together and left together, and tell of talking to the boy on the way home; they tell of the attraction at the theatre that night, that it was amateur night, that Friday night is amateur night at the theatre, and that this particular attraction was at the theatre but one amateur night and that was on Friday night, November 3d, 1905, the night of this girl’s death. This testimony is further corroborated by the testimony 'of a number of employees of Myers, and the Marcus boy was not recalled to deny their testimony.

That Marcus was not at the bridge the night of November 3d, is clear, and that he was mistaken as to the night, or committed wilful and corrupt perjury, is equally clear.

In State v. Huff, 161 Mo. l. c. 487, it is said: “Testimony completely impeached is no testimony at all, and rests on the same basis, in legal contemplation, as though no testimony had been introduced. And when such a case occurs, relief will be granted by this court. [State v. Packwood, 26 Mo. 340; State v. Primm, 98 Mo. l. c. 373, and cas. cit.] ”

Fred Grubb, a witness ‘for the State, testified that he saw the defendant on the bridge the night of November 3, about 5:40 o ’clock, just at dark, and although he had never seen him before in his life, and although he was one hundred and eighty-five feet from him, in a direct line, and could only see him when looking between the boards which formed the north banister of the bridge, he testified that the man he saw there was the defendant. But the little boy, John Newton,' who knew the defendant well and whn was with Grubb at the time, and had as good an opportunity to see the man on or near the bridge, failed to recognize him as the defendant. In-contradiction of Grubb, defendant introduced the testimony of D. O. Spangler and his wife, Frank Embre, William Blane and his wife, Joseph Lowry, A. C. Cooper, Alice and Peter Jacobe, C. E. Freeman and his wife and the defendant himself, by all of whom it was proven that defendant was not present at the bridge at the time Grubb testified that he saw him there. Mr. and Mrs. Blaine testified that at the very time Grubb says he saw defendant at the bridge the defendant was in their place of business, at 8th and Walnut streets, six miles from the bridge, getting a hat for which he paid them two silver dollars and got in exchange the hat and fifty cents in silver, and they recognized the hat offered in evidence as similar to the hat Francis received from them, and they recognized the hat positively (by the work on it) as one they had repaired, cleaned and blocked; they go farther and tell us why they are able to fix the exact date and the time of their transaction with defendant: a lady whose name and address they give was visiting them on this evening, and that lady arrived about half past four in the evening, and she was there when the defendant came in and the transaction with him was just before closing time (6 o’clock), was the last transaction of the day, and was after the lamps were lighted, and they say it was between half past five and six o ’clock. If their testimony is true, the defendant could not have been at the bridge when Grubb claims to have seen him. The Blaines’ testimony is corroborated by A. L. Cooper, who says he saw defendant at the entrance to the Bank of Commerce building at about five o’clock, and D'. O. Spangler, who says he and defendant left the bank of Commerce building at about five o’clock and went to Tenth and Main streets (the Bank of Commerce building is at Tenth and Walnut streets, one block east of Tenth and Main streets), where they stood a few moments and at about 5:10 o’clock separated, the defendant going north on Main street, saying he had to go to Eighth and Walnut to get his hat. Frank Embree says he saw defendant a few minutes- later (when it was growing dark and the lights in the restuarant were burning) pass a restaurant on the north side of Eighth street, between Main and Walnut, and talked with him a moment; that defendant was then going east toward the store of the Blaines; and the defendant relates these facts substantially as testified to by all of these witnesses, and says when he left the hat store he took a car and went home. He further says that after he left Spangler at Tenth and Main he stopped on his way to the hat store at the Owl drug store, and purchased a bolt of “easy strap.”

Joseph Lowry says that defendant reached home about six o’clock and immediately after supper defendant and his mother left the house together, stating they were going to Jacobe’s to spend the evening, and at about half past eleven o’clock: they returned and with them the little Jacob e girl.

. Mr. and Mrs. Jacobe testified that the defendant and Ms mother reached their house about seven o’clock and remained until eleven or eleven-thirty that night, and they are corroborated in this by the testimony of Mr. and Mrs. Freeman, who testified' that defendant and his mother reached the Jacobe home at two or three minutes before seven o’clock. It seems to us a more perfect and reasonable alibi has seldom been established, and, confronted with tMs testimony, the irresistible conclusion is and must be that Fred Grubb was mistaken in his identity of the defendant as being the man on the bridge; but even were Ms testimony true and if it were shown positively that defendant was upon the bridge when Grubb says he saw him, the evidence would still fall far short of proving that defendant murdered the deceased.

One Raymond Lyming was another witness upon the part of the State. This witness was a boy Mne years of age, had attended school about two and one-half years, but had never gone to Sunday School or attended church. Being asked if he knew the meaning of an oath, he answered that he did, that his father told him what it was, but he did not know what they would do with him if he did not tell the truth. He was objected to as a witness by defendant because incompetent. He was, however, allowed to testify and stated that he saw the defendant at the bridge at about eight o ’clock on the night of the homicide; that he was in fifteen feet of him when he lit- a match to light a cigar and by the light of the match he saw his face. That he did not know him at the time, but recognized him when he saw Mm in the court room. But he also testified that at the time he saw defendant the witness was on his way home on horseback, and that John Newton, the brother of deceased, was riding behind him upon the same horse; that at the same time Winona and Ada were coming up there and she told John to hurry on home. Now the evidence conclusively shows that at the very time that the witness testified to having seen defendant at the bridge both John and Ada were at home, so that it is manifest that tbe witness did not tell the truth, or that he was mistaken as to the night when he saw defendant, and we conclude that it must have been the latter.

The State seems to lay much stress upon the testimony of one Maudie Bowles, a witness for the State, to the effect that she heard the defendant say to another young man whom she-did not know, “Why I have got to hurry up and go and meet the kid between five and six; poor Winona, she don’t know right from wrong, but she is a damn good kid to be with,” as tending to show that the defendant met the deceased at the bridge on the evening of the third of November, 1905', but the witness stated emphatically that said conversation (if indeed it ever took place) occurred between the first and the fifteenth of October, 1905. It, therefore, had no tendency whatever to show that defendant met and murdered deceased on the 3rd of November next thereafter.

It follow's that there is not one iota of evidence worthy of belief which even tends to show that the defendant knew that the deceased was pregnant, that he ever threatened or had any ill-will or malice towards her, but on the other hand, . it tends to show that they were upon the best of terms; or that he ever bought or otherwise procured or had in his possession any carbolic acid; or that he was at the bridge on the night of the murder, or that he ever administered or even had an opportunity to administer the carbolic acid to the deceased which produced her death, or that he had any connection with it; and, in order to reach the conclusion arrived at by the jury, they must necessarily have indulged in the field of conjecture, which is entirely too visionary to justify the taking of human life or to deprive a man of his liberty. At most, the evidence adduced only raised a suspicion against the defendant, and under such circumstances no conviction of crime should be permitted to stand. In State v. Jones, 106 Mo. l. c. 313, it is said, “Mere suspicion, however strong, will not supply the place of evidence, when life or liberty is at stake. ’ ’ In the case of State v. Scott, 177 Mo. 665, a conviction was sought on circumstantial evidence, and Pox, J., in speaking for the court, said: “We have carefully analyzed all the testimony as presented by the State . . . and while it may be said that it is calculated to arouse a suspicion of guilt of this defendant, yet suspicion or even strong probabilities of guilt do not authorize a conviction. Giving every circumstance its full force, and leaving out of view any testimony offered by the defendant, it falls far short of furnishing that clear and convincing testimony upon which the citizen should be deprived of his liberty. The law should' be. universal in its application; it should be applied to the humble and exalted alike. This defendant may be guilty, but the facts, as disclosed by the record in this case, fail to show it. If there was any substantial evidence upon which to base this verdict, it would not be disturbed, but, in view of the insufficiency of the testimony to authorize this conviction, we must decline to sanction it. . . . Resting upon the testimony of the State alone, it created but a suspicion of defendant’s guilt, and, whether such suspicion was strong or doubtful, it did not authorize his conviction.’’

To the same effect is State v. Morney, 196 Mo. 43; State v. Crabtree, 170 Mo. 642.

Besides, the evidence tending to show an alibi was very persuasive at least, if not in fact established. We, however, agree with counsel for the State, that the facts disclosed by the record do not even suggest suicide, or the accidental falling of the large rock upon the body of the deceased. The rock could not have made the cut places upon her cheeks, but how they came there, and by whom the murder was committed, seems to be shrouded in mystery. These wounds and bruises were not however sufficient to cause the death of the child — and according to the evidence did not do so. So that the conviction must stand or fall upon the allegation with respect to the poisoning.

While the conduct of the defendant towards and the treatment of the little girl in debauching her, was of the most reprehensible character, yet, upon a trial for her murder he was entitled to be tried just as any other person charged with crime, according to the same forms of law and rules of evidence, among which is, that when a conviction for crime is sought upon circumstantial evidence it must always be scanned with great caution and can never justify a verdict of guilty, especially of murder in the first degree, the penalty of which is death, unless the circumstances in proof are of such a character and tendency as to produce upon a fair and unprejudiced mind a moral conviction of the guilt of the accused beyond all reasonable doubt, and to be absolutely inconsistent with his innocence.

Our conclusion is that there was no substantial evidence to authorize the verdict, and that the judgment should be reversed and the defendant discharged. It is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    GOFF v. ST. LOUIS TRANSIT COMPANY, Appellant.
    Division Two,
    December 4, 1906.
    1. STREET RAILWAY: Trespassers. Pedestrians have the right to walk upon any part of a public street, whether there he a street railway laid therein or not, and are not trespassers if they do so.
    2. -: -: Ordinary Care: Presumption. The law presumes that a pedestrian on a railway track on a public street was in the exercise of ordinary care and caution, nothing to the contrary appearing in plaintiff’s evidence, and it devolves on the defendant company to overcome that presumption.

      3. -: -: -: -: : No Lights: Demurrer to Evidence. The presumption being that deceased was in the exercise of ordinary care in walking in the dark on defendant’s railway track in a public street, and there being evidence on behalf of plaintiff tending to show that the car was insufficiently lighted to enable a pedestrian to see, and there being no evidence tending to show that any signals were given of the approach of the car, the court should submit it to the jury to determine whether or not the railway company was guilty of negligence in running the car along the street of a dark night without sufficient light to enable a pedestrian to see and escape the car, although defendant’s witnesses testify that the car was brilliantly lighted. The law devolves on street railways the duty to exercise ordinary care to avoid collision with those who have a right to use the highway, especially at places where such persons may reasonably be expected to be on the track, and it • is for the jury to determine whether or not defendant’s witnesses are to be believed.
    4. -: Presumption of Care: Intoxication: Question for Jury. Where to rebut the presumption that deceased was in the exercise of ordinary care evidence is offered that he was intoxicated at the time he entered upon the track, an issue is raised which the jury alone is authorized to settle.
    6. -: Man on Track: Stopping Car: Ordinary Care: Question for Jury. Where the motorman’s testimony is that he could and did stop the car within thirty-two feet after he saw deceased lying on the track, his head over one rail and his feet over the other, and saw him thirty feet away, and the conductor, who was on the front platform, testifies that he saw him when the car was ten feet from him and could have seen him seventy-five feet away, and the roadmaster testifies that the man could have been seen forty feet away, it is for the jury to say whether or not the motorman exercised ordinary care to avoid striking deceased.
    6. PRACTICE: Instructions. It is not error to refuse instructions, even though correct statements of the law, when those given fully cover the case.
    Appeal from Gasconade Circuit Court.— Hon. Wm. A. Davidson, Judge.
    Affirmed.

      B\oyle & Priest, J. G. Kislcaddon and B. L. Matthews for appellant.
    (1) The court erred in refusing to give a demurrer to the evidence asked by defendant at the close of plaintiff’s case1, and also in refusing to give it at the close of the whole case. Plaintiff introduced no evidence tending to show that the lights were dim or the headlight insufficient at the place of the casualty, or that the motorman was not then at his post, or that he was not then keeping a lookout ahead, or that he failed to give a warning to deceased. Nor did plaintiff introduce the slightest evidence even tending to prove that a failure to lookout ahead, or a failure to give a warning, or an insufficient- headlight, or the failure of the motorman to be at his post was the proximate- cause of the death of deceased. All these things are- left to- mere conjecture-. It was possible that one of these things might have been the proximate cause of his death, but the plaintiff did not prove it. The alleged acts of negligence were too remote from the actual occurrence. There is nothing to show how deceased got on. the track, what his position was on the track, or whether he was dead or living when the car struck him, if it did. On the other- hand, defendant’s undisputed evidence removes even the conjecture. Conceding that the car had a poor headlight, and that when the ear passed Robbins avenue the- motorman was not at his post, and that is all plaintiff’s evidence does prove, then it is shown by undisputed evidence that the motorman was at his post when the car passed Chapman’s and at the time of the casualty; that deceased had gone onto the track and laid down thereon, that on account of his position he could not be seen in time to stop the car and avoid striking him, and there is nothing else to indicate dereliction of duty on the part of the motorman. The mere fact that deceased was killed, if he was killed by the car, is not sufficient to charge defendant with negligence. Yarnell v. Railroad, 113 Mo. 579; Harlan v. Railroad, 65 Mo. 25; Powell v. Railroad, 76 Mo. 83; Stokes v. Burns, 132 Mo. 223; Christy v. Hughes, 24 Mo. App. 275; Sappington v. Railroad, 95 Mo. 393; Hogan v. Railroad, 150 Mo. 52; Campbell v. Railroad, 175 Mo. 178; Glover v. Railroad, 153 Mo. 337. (2) The court erred in admitting evidence of the speed of the car. There is no> allegation in the petition that speed was an act of negligence. If there had been an allegation in the petition that the motorman had negligently failed to stop the car after the dangerous position of deceased on or near the track was discovered, or might by the exercise of ordinary care have been discovered, and there was a question whether, at the speed the car was running, it could by the exercise of ordinary care have been stopped or not, then it might be pertinent. But there is no such allegation in the petition. Nor did plaintiff offer to introduce evidence that, considering the speed of the car, it might have been stopped after the dangerous position of deceased had been discovered, or by the exercise of ordinary care ought to have been discovered. In connection with this subject it is insisted that instruction 5 is erroneous. The instruction as originally asked by defendant is No. 7. The court refused it as asked, and modified it by striking out the words “even though the jury may believe the headlight and other lights in the car were dim, and that the motorman failed to give deceased any warning’ of the approach of the car, ’ ’ at the end of the instruction, and substituting for the foregoing words in quotation marks the words, “unless you further find that at the time the deceased was struck and injured the lights were so dim that by the exercise of ordinary care he could not have seen the car in time to step aside and avoid the injury, or that the car was run at such high rate of speed as to have caused the injury. ’ ’ There being no allegation in the petition that speed was negligence, it was error to give this instruction or admit evideuce of speed. And neither the exceptions to the evidence nor to the giving of this instruction are waived by failure to except to the first instruction given at the instance of the plaintiff. Ely v. Railroad, 77 Mo. 35; Barker v. Railroad, 126 Mo. 151; Schierbaum v. Schemme, 157 Mo. 22; Moffatt v. Conklin, 26 Mo. 457; Glass v. Celvin, 88 Mo. 301; Mansur v. Botts, 80 Mo. 658; Yarnell v. Railroad, 113 Mo. 578; Krueger v. Railroad, 94 Mo. App. 462; Heinzle v. Railroad, 182 Mo. 559.

      A. R. Taylor for respondent.
    (1) There was sufficient evidence to take the case to the jury on the evidence presented for the plaintiff, of the negligent running of the car along a public highway in black darkness without sufficient light to enable a pedestrian to see and escape the car. The deceased, being lawfully on the track where he had aright to be, and where pedestrians walked, as defendant’s evidence showed as well as plaintiff’s, was not a trespasser or negligent per se in so doing. Henry v. Railroad, 113 Mo. 536; Riska v. Railroad, 180 Mo. 168; Eckhard v. Railroad, 1901 Mo. 593. (2) The law presumes in favor of the deceased that he was in the exercise of ordinary care at the time he was struck and killed. This is a rebuttable presumption, but the burden is on the defendant to rebut this presumption. The evidence must be clear and conclusive. In this case the defendant introduces evidence of its motorman and conductor that deceased had adjusted himself on the track, the head on the west rail and his feet on the east rail, so he could not escape. This evidence of design . and elaborate preparation runs amuck, to a degree1, with the evidence of the defendant’s witnesses about his maudlin drunken condition. Most people, by observation or experience, well know that an undue portion of intoxicating liquors has a tendency to incapacitate the mind for ac^ curate arrangement. The mind, to a degree, ceases to conceive method and order,. One would hardly expect the man whom Miss Birdie Stille followed 9001 feet in the night’s darkness and peril, and in forgetfulness of the devastation to her spring hat, would be the same man who could use as much care and design in arranging his body for the execution as is told of Julius Caesar, when he folded his robe about himself to die at the foot of Pompey’s statue. The jury did not believe, under this evidence, that this death was a sequence of 1he story recited by this witness. The same reasoning may be applied to the stilted story of the motorman and conductor. At last it was a question for the jury whether or not they should accept their story as true. The presumption of due care on the part of the deceased was not conclusively overthrown by such evidence. The jury might have believed the motorman and conductor on this issue, and they might not, with reason for either conclusion. (3) The presumption that a deceased person killed by a street car was exercising due care is not overthrown, even by the fact that he is seen to walk on a track ahead of an approaching car, and is killed by the car, though at the time deceased was carrying an umbrella pulled down close over his head to avoid rain. Riska v. Railroad, 180 Mo. 188; Weller v. Railroad, 164 Mo. 199-; Eckhard v. Railroad, 190 Mo. 613; Buesching V. Gras Co., 73 Mo; 233. (4) But if the jury should have given full faith and credit to the motorman’s and conductor’s story, fishy and incredible as it was; and should also believe-, as the conductor testified, that the deceased could have been seen on the track 75 feet ahead of the car, or Schambeck’s, the road officer’s, evidence, that, as deceased lay on the track in mute and drunken oblivion, he w!a,s readily to be seen 40 feet- ahead of the car; and also believed the motorman when he says he stopped within 32 feet, here, again, we find, on the evidence of the defendant, a case of liability. For the law is now settled in this State that, however negligent a man may be in being upon a railroad track, yet if the operatives of the car saw him, or, in the exercise of ordinary care, would have seen him in peril and could thereafter, in the exercise of such care, have saved him, still the railroad is liable. Seaboard Oo. v. Tolson, 39 U. S. 5591; Railroad v. Ives, 144 U. S. 429; Reardon v. Railroad, 114 Mo. 406; Chamberlain v. Railroad, 133 Mo. 601; Klockenbrink v. Railroad, 172 Mo. 687; Scullin v. Railroad, 184 Mo. 707.
   GANTT, J.

This is an action by Ellen Goff, the widow of Patrick Goff, for the negligent killing of said Patrick Goff by the defendant company by a street car operated by the defendant company, on the night of March 12, 1901.

The petition alleged, among other things, that at the time alleged Ferguson avenue, at the place mentioned in the petition, was an open public highway in' St. Louis county, Missouri, and that at said time plaintiff was the lawful wife of Patrick Goff; that on the 12th day of March, 1901, in the evening and whilst it was dark, plaintiff’s husband was lawfully upon Ferguson avenue, where defendant’s railway track was upon said highway, when defendant’s servants in charge of its car carelessly and without keeping a lookout ahead, and without giving any warning to plaintiff’s husband of said approach of said oar, ran said car on and against plaintiff’s husband, crushing and killing’ him.

It is further averred that at the time of so killing her husband, defendant, and its servants in charge of said car, were running said car upon said highway without any headlight or sufficient light to enable her husband to see and avoid it, which negligence directly contributed to cause the injury and death of plaintiff’s said husband. .

It is further averred that at the time of the injury and death of her husband, defendant’s motorman and conductor were not at their posts of duty and in position to control or stop said car, and thereby failed to control or stop said car and avert the injury and death of plaintiff’s husband, which negligence was a directly contributing cause to the injury and death of her husband. The action accrued to the plaintiff to sue for a recovery of $5,000, according to the statute in such cases, for which sum plaintiff prays judgment according to the statute in such cases made and provided.

The answer was a general denial and a plea of contributory negligence, in that, that said Patrick Goff negligently and carelessly entered upon defendant’s said railroad track and thereon laid down in such place cn said track on a dark night as to make it impossible for those in charge of defendant’s car to prevent and avoid collision with him.

The reply was a general denial.

The evidence tended to prove all the formal facts alleged in the petition: That the plaintiff was the widow of the deceased at the time of his death. That Ferguson avenue, at the place where deceased was killed, was a public highway in St. Louis county. That defendant had a railway track on Ferguson avenue, on which it operated the car by which the deceased was killed; that this car ran north-and-south along Ferguson avenue, a distance of three and one-quarter miles, its southern terminus being De Baliviere avenue, and its northern terminus being the St. Charles Rock Road. That Patrick Goff was killed on the night of March 12th, 1901, on the track of the defendant’s said railroad. On that night a misty rain was falling. The deceased had been eng’aged during* the day at his avocation as a huckster of vegetables; he would buy his merchandise in the city and sell it from a wagon about the suburbs of St. Louis. He lived on Pennsylvania avenue, a north-and-south street about 1550 feet west from Ferguson avenue; on which the defendant maintained and operated its electric railway. The defendant had a single railway track on this avenue. On the day of his death, after his work was over and he had taken his supper at his home with his family, Patrick Goff left home to go to the St. Charles Rock Road, a highway running northwest from St. Louis to St. Charles, for the alleged purpose of buying feed for his horses. He was next seen by the witness for the defendant, in a saloon near the northern terminus of the railroad on Ferguson avenue, where he drank a glass of beer, and inquired the time at which the car was due. After that he was seen by an acquaintance as he was walking-along St. Charles road towards the terminus and about 75 feet therefrom. He and this acquaintance exchanged greetings as they passed each other, and according to this witness there was no sign of drunkenness upon him. This was near eight o ’clock p. m.

At this point the defendant’s evidence tended to prove that on the day of the accident, Fred Koehn saw Goff, the deceased, under the influence of liquor. Mrs. Y. V. Curtis, Mrs. Rose Kline and Mrs. Mary Grace testified that between six and seven o’clock p. m., on that day, they saw Patrick Goff and he was drunk. Jacob Walter, a saloon-keeper, whose saloon is on the St. Charles Rock Road near the northern terminus of Ferguson avenue, testified that he saw Goff about 7:30 p. m., and he was under the influence of liquor at that time. Miss Birdie Stifle, a sister of the motorman, testified that she lived at that time near the northern terminus of Ferguson avenue-, and on that evening was going to attend choir practice at a church near there. She went to an old car which had been placed there as a waiting room, to await the coming of the car, which left that point at 8 p. m. She arrived some minutes before the car was due. It was very dark and raining a little. While she was waiting, a man came within a few feet of her, and she saw by his actions, and because he wias talking and muttering to himself, that he was intoxicated’. He started down the track south towards the bridge on Ferguson avenue, and fearing that he might fall between the ties on the bridge, and possibly be run over by the car, then nearly due, she followed some distance behind him almost to the bridge, where he turned off of the track on to the road; she then went back to the old car' to wait for her train. She could see the man by the occasional flashes of the lightning. When the car came she got onto it and went to her destination.

The evidence without dispute was that this car made the round trip of six and one-half miles every half hour and ran at an average speed, including stops, of thirteen miles an hour. The evidence tended to show that the place where deceased was killed was by measurement one thousand feet south of the St. Charles Rock Road terminus and about fifty feet south of the bridge or trestle.

On the part of the plaintiff the evidence tended to show that the car was running rapidly when it passed Robbins avenue; that the light on the front of the car was very dim and at the time a drizzling rain was falling, and the night was very dark. There was evidence tending to - show that the light on the front of the car was an electric bulb giving a sixteen-oandle-poWer light. There was other evidence tending to show that there was a headlight on the front of the car. There was evidence that the track of the defendant was laid in the ordinary form of a railroad through the country; that the dirt was thrown up in the center of the track. There as evidence also tending to show that pedestrians walked on this track. The defendant’s witness Herr testified to having walked over the track from Robbins avenue to St. Charles Rock Road, some twenty or thirty minutes before Goff was killed. On the part of the defendant, the evidence tended to show that the witnesses on the evening of the accident, and on the trip on which the accident occurred, saw this ear coming up the grade north towards Robbins avenue at a distance of one-half mile from the witnesses; that it was brilliantly lighted and had a headlight of the ordinary kind used on street cars; that in coming up the grade the nse of the power in propelling the car had a tendency to cause the lights to shine less brightly, but immediately on getting on to a level or going down grade the brilliancy of the lights was restored; that on that trip there was but one passenger aboard, Mr. Albert Chapman. The motorman, conductor and Mr. Chapman testified that the motorman was at his post on the front platform when the car passed Robbins avenue; that at 600 or 700 feet north of Robbins avenue, and after the car had got on the steep down grade, it was stopped by the motorman and Mr.'Chapman got off at his residence there. It was 2200 feet from. Robbins avenue to the place where the accident occurred and about 1500 or 16001 feet from Chapman’s residence. The evidencie tended further to show that when Chapman got off, there being no other passenger, the conductor went on to the front platform with the motorman. Both the motorman and the conductor saw a may lying on the track just about the beginning of the first curve in the road south of the St. Charles Rock Road. The motorman testified that he saw the deceased when he was about 30 feet from him and the conductor saw him when he was about ten feet distant. The motorman was already engaged in setting the brake when the conductor saw the man. According to their testimony the man was lying crosswise of the track with his head on the west rail and his feet on the east rail. The motorman testified that he stopped his car in about thirty-two feet; that immediately upon seeing the deceased on the track, he set his brake and stopped his car as soon as he could. The front wheel of the fore-wheel truck did not run over the man’s head, but must have pushed it off of the rail. The evidence tended to show that the man was killed by a bolt in the frame of the truck which projected down below the frame near the wheels of the truck; this bolt struck the deceased in the eye, penetrating the brain, and killed him instantly. There was evidence tending to show that the clothing of the deceased looked as if he had wallowed in the mud. There was also evidence that when the deceased was discovered he had on only one arctic overshoe. An artic overshoe was found in the dirt road somewhere along the track. There was evidence tending to show that this shoe was the mate to the one on Patrick Goff’s foot. On the contrary, there was evidence on the part of the plaintiff that the shoe found and offered in evidence by the defendant, could not have been worn by Patrick, Goff. The conductor, John Molden, testified that the light from the ear that night extended along the track twenty-five yards or seventy-five feet. The roadmaster, Schemback, testified that the motorman, with the light from the car, could have seen the deceased lying on the track forty feet ahead of the car. On the part of the plaintiff there was much evidence tending to prove that the deceased was not intoxicated on the day of his death, nor up to a very few minutes prior thereto. These were substantially the facts developed on the trial. Other circumstances may be adverted to in the course of the discussion of the evidence. The objections to the instructions will be examined in the order in which they are made by the counsel for the defendant.

I. Did the circuit court err in submitting the case to the jury on the evidence? The testimony shows that the track of the defendant was laid in and along a public road leading from the suburban subdivision known as Hazel Hill to the St. Charles Rock Road, and designated in the evidence as Ferguson avenue. The fact that a railroad track was laid in this public highway, did not make Patrick Goff a trespasser in walking upon it. Pedestrians have the undoubted right to use a street or a public road for all ordinary purposes, to walk across it if so inclined; that Patrick Goff had a right to walk npon any part of this road that he saw fit npon exercising due care and caution, there can "be no question under the decisions of this court. [Henry v. Railroad, 113 Mo. l. c. 535, 536; Winters v. Railroad, 99 Mo. 517; Scullin v. Railroad, 184 Mo. 707.]

When tile plaintiff closed her case in chief no witness had testified to seeing Patrick Goff at the time he was struck and killed by defendant’s car. The law presumes that he was in the exercise of ordinary care at the time he was struck and the evidence bn the part of the plaintiff was to the effect that Howard Bradford saw him within thirty minutes within the time of his death, and he was .without the sign of intoxication at that time, and there was no evidence that after he was so seen by Bradford he had taken anything to make him drunk. The deceased then being lawfully on the track, and where it appeared other pedestrians walked, he was not a trespasser or negligent per se in being on the track. [Buesching v. Gaslight Company, 73 Mo. l. c. 233; Eckhard v. Railroad, 190 Mo. l. c. 613, 614; Rapp v. Railroad, 190 Mo. 144.]

It is true that the presumption that the deceased was in the exercise of ordinary care at the time he was struck and killed is a rebuttable one, but the burden is on the defendant to rebut this presumption. Beginning with this presumption in favor of the exercise of ordinary care by the deceased and the fact that he was not a trespasser in walking upon defendant’s track in the public highway and taking into account the evidence on behalf of the plaintiff tending to show that the car was insufficiently lighted to enable a pedestrian to see, and the absence of all evidence tending to- show that any signals were given the deceased of the approach of the ear and the darkness of the night and the duty which the law devolves upon those who operate dangerous machines upon and along the public highways to exercise ordinary care and prudence in order to avoid collisions with and injury to others who have a right to use the highway, especially at places where the presence of such persons might reasonably be expected upon the track, we think the court did not err in submitting to the jury whether the defendant was not guilty of negligence in running this car along the said avenue on a dark night without sufficient light to enable a pedestrian to see and escape the car. While it is true that witnesses for the defendant testified that the car was brilliantly lighted, it was for the jury to determine whom they would believe in view of all the evidence. The fact that the motorman and conductor and- other witnesses did testify that the car was well lighted did not justify the circuit court in taking the case from the jury in view of the testimony on the part of the plaintiff that the car was so dimly lighted that one of the witnesses, the wife of the deceased, was in danger of being struck by the same car because it was not sufficiently lighted for her to see it.

As to the intoxication of the deceased rebutting the presumption of care, it is sufficient to say that that was also a question of fact which the jury alone were authorized to determine, there being much evidence on both sides of this question.

As to the other ground of negligence alleged in the petition and upon which the court in its second instruction for the plaintiff submitted the case to the jury, to-wit, that the defendant’s motorman in charge of said car failed to use ordinary care to' look ahead of said car for persons on the track and in danger of being injured by said car, and failed to control the movement of said car so as to avoid injury to said Goff, the testimony developed this state of facts on the part of the defendant: Patrick Goff, according to the motorman’s and conductor’s evidence, was lying on the track with his head on the west rail and his feet on the east rail at the south end of the first curve in the road south of the St. Charles Rock Road. The motorman testified that he saw the deceased on the track in front of his car when he was about thirty feet from him and that he immediately set his brake and stopped the car as soon as he could. John Molden, the conductor of that car, testified that he was on the car that night as conductor thereof; that the car had a reflector on it which was attached to the roof over the motorman’s head; that the motorman was on the vestibule in front of the car; that he discovered the deceased lying on the track with his head on the west rail and his feet on the east rail, and the car was about ten feet distant from the deceased when he first saw him; that the lights on the car were good, and he could have seen twenty-five yards in front of the car. Schemback, the roadmaster, testified that a man could readily have been seen forty feet ahead of the car. The motorman testified that he stopped his car within thirty-two feet. Accepting this testimony of the defendant’s witnesses as true that the oar not only could have been stopped, but actually was stopped in a space of thirty-two feet, after the motorman says he saw the body of the deceased lying immediately across his track with his head on one rail and his feet on the other, and the testimony of the defendant’s own witness, the conductor, that thedeceased could have been seen in that position for seventy-five feet before the car struck him, and the testimony of the ■roadmaster that the body of the deceased could have been seen forty feet ahead of the car, it is apparent that it became a question of fact for the jury to determine whether the motorman in the exercise of ordinary care would have seen the deceased in a position of peril and by the exercise of ordinary care could have saved him. In Reardon v. Railroad, 114 Mo. l. c. 406, it was said by this court: “The law of this State is thoroughly well settled that the defendant is liable even to a trespasser, if it fails to use ordinary care and prudence to prevent -injuring him, after discovering his peril,” and this doctrine has been reasserted in numerous cases in this State. [Chamberlain v. Railroad, 133 Mo. l. c. 599; Klockenbrink v. Railroad, 172 Mo. l. c. 687; Scullin v. Railroad, 184 Mo. l. c. 707.] But in this case, the deceased was not a trespasser. He was on a public highway. But it must be conceded that if the testimony of the conductor and motorman was true, he was not in the exercise of ordinary care and prudence when he laid himself down upon and across the defendant’s track. But he was on a public highway, and the defendant was operating a railroad longitudinally along that highway, and it was shown that pedestrians walked upon the defendant’s track, and in such case it was the duty of the motorman to exercise ordinary care and prudence in keeping a lookout for persons that might be upon the track, and if the motorman saw or in the exercise of ordinary care in the circumstances would have seen the deceased lying on the track in time to have stopped his car without injuring him, but negligently failed' to do' so, then the company is liable. And as the defendant’s own witnesses and servants testified that the man could have readily been seen on the track from forty to seventy-five feet ahead of the ear and that the car was actually stopped in thirty-two feet, we think the evidence justified the court in submitting the case to the jury upon this allegation of negligence. [Rapp v. Railroad, 190 Mo. 144.]

Our conclusion is that the court did not err in submitting the case to the jury upon the evidence developed on the trial.

II. For the plaintiff the court gave three instructions presenting the issues of fact on the evidence, and two formal instructions, one defining ordinary care, and the other stating that the burden was on the defendant to prove contributory negligence. Neither of these instructions was objected to and are not criticised by defendant’s counsel on this appeal, and we must, therefore, assume that they were correct. On the part of the defendant, the court gave fifteen instructions. Seven of these were given in the language in which they were asked and without modification, to-wit: Numbers 1, 2, 3, 7,11,12 and 15. The court made some modifications to instructions numbered 4, 5, 6, 8, 10, 13, and 14. These instructions cover seven pages of printed matter and are as follows:

“1, In this case plaintiff alleges in her petition that while her husband, Patrick Goff, was lawfully on a public highway called Ferguson avenue in St. Louis county, Missouri, he received an injury which caused his death by defendant’s negligence in the following respects, to-wit:
“1st. That defendant’s employees in charge of one of defendant’s cars carelessly and negligently failed to keep a lookout ahead and by reason of such failure ran onto said Goff and killed him.
“2nd. That said employees negligently failed to give said Goff warning of the approach of said car, and in consequence thereof ran onto said Goff and killed him.
“3rd. That at the time said Goff was so killed defendant and its employees negligently ran said car without a headlight or sufficient light to enable said Goff to see said car and avoid it, which alleged negligence directly contributed to cause the injury and death of the said Goff.
“4th. That at the time of the injury and death of the said Goff' defendant’s moto-rman and conductor were not at their posts of duty in a position to- control or stop said car, and thereby failed to stop or control said car, which alleged negligence directly contributed to the injury and death of the said Goff.
“With respect to the foregoing allegations of negligence you are instructed that the burden of the proof is upon, the plaintiff throughout the whole case, to establish by the greater weight of the evidence, one or more of the acts of negligence charged, and that such act or acts were the direct, efficient, and proximate cause of the death of the said Goff, and unless the plaintiff has so proven, by the greater weight of the evidence to your satisfaction, she is not entitled to recover, and the verdict must be for the defendant.
“2. Defendant in its answer denies that the said Goff was killed by defendant’s car, and also denies all the acts of negligence charged by plaintiff in her petition as having, been committed by defendant. And defendant, for a further defense, states in its answer that the said Goff directly contributed to his own death by negligently going onto defendant’s track in the night time and negligently lying down thereon, and that had he not negligently done so would have not been killed. Plaintiff denies these acts of negligence in her replication.
“3. If the jury believe from the evidence that at the place where the deceased was struck and killed on defendant’s railroad, said railroad runs along one side of the road and not on the traveled part by a ditch and that there was no other road crossing said road at that point, then the motorman had a right to presume that the track was clear and unobstructed, and had a right to run his car with that presumption in view, and if after the motorman saw the deceased, or by the exercise of ordinary care might have seen him, he did all he could with the appliances he had on hand to stop the car before the car struck the deceased, then the deJ fendant is not liable in this action and the jury will so find, even though the jury may believe that the car at the time was being run at a high rate of speed'.
“4. If you believe from the evidence that said Goff in the night time went onto defendant’s track and lay down thereon, and the defendant’s employees in charge of said car which struck the said Goff, by reason of the darkness of the night and the position of the said Goff on said traed?:, and defendant’s employees were exercising ordinary care and failed to see said Goff until the car was so close to him that said employees could not stop the car in time to avoid striking said Goff, and that after said employees did see, or by the exercise of ordinary care could have seen him, they used all the means at their command in the time they had to stop the car and the said Goff’s own acts of negligence on his part directly contributed to his death, in such case she cannot recover and your verdict must be for the defendant.
“5. Although the jury may believe that the deceased was killed by being run onto by defendant’s car on a railroad track running alongside a public road, yet, if the jury further believe that the place where the alleged casualty occurred was not in a populous city, but was in the country where the population was not dense, and that the railroad track ran along said public road at one side thereof, and was separated from the traveling part of said public road by a ditch or gully; and that at the time of the night when said casualty occurred, said public road was usually unfrequented and used by few persons; that the night was dark and that deceased was lying down on the railroad track; that the motorman at the time in charge of said car was watching for obstructions or persons on the railroad track; and that as soon as said motorman saw deceased, or by the exercise of ordinary care could have seen him, lying on the track, he used all the means at his command which he should use to stop the car and avoid running onto the deceased; then, the verdict must be for the defendant; unless you further find that at the time the plaintiff was struck and injured the lights were so dim that by exercising ordinary care he could not have seen the ear in time to step aside and avoid the injury, or that the car was run at such a high rate of speed as to have caused the injury.
“6. If you believe from the evidence that at and immediately prior to the time that defendant’s car struck the said Goff, the motorman of said oar was on the front platform of said car, and that said front platform was his post of duty, then you cannot find for the plaintiff on the ground that defendant’s employees were negligent in failing to be at their post of duty on said car.
“7. In determining whether or not defendant’s motorman saw or by the exercise of ordinary care could have seen deceased on defendant’s track in time to stop the car before striking deceased', the jury should take into consideration the darkness of the night, the place where the accident occurred, the-frequency or infrequency of persons being on the road adjoining said track or on said track at that time-, the condition of the railroad track at that place-, the land of a headlight or other light, if any, on the car, whether the motorman was at his post or not, and the efforts the motorman made, if any, to stop the car, and if from the consideration of these facts you believe that the motorman did not see the deceased, or by the exercise of ordinary care could not have seen him, in time to stop the car before striking him, then the verdict must be for the defendant.
“8. If you believe from the evidence that defendant’s motorman at the time the said car ran onto the said Goff was on the front platform of the car, and that said position was his proper post on the said car, and that he was at that time keeping a lookout ahead, and that on account of the darkness of the night and the position of the said Goff on the defendant’s track he could not see said Goff in time to stop the car and avoid striking him, and that when said motorman did see said Goff, he used all the means in his command which he could use in the time he had to stop the oar, and that notwithstanding such efforts on his part the car struck the said Goff and killed him, then yon cannot find for the plaintiff on the ground that defendant’s employees were negligent in failing to keep a lookout ahead.
“10. Although you may believe that defendant’s employees in charge of the car which struck the said Goff failed to give any warning of the approach of the car, yet they were not bound to give any warning until they discovered said Goff in a place of danger, and if, on account of the darkness of the night, and the position of said Goff on defendant’s track, said employees failed to see said Goff until the car was so^ close to him that a warning could not be given, or, if given, would be useless, then you cannot find for plaintiff on the ground that defendant’s employees negligently failed to warn said Goff of the approach of the car.
“11. It is your imperative duty, devolved upon you by your oaths, to try this case and decide it precisely as you would were it a suit between two individuals. The fact that plaintiff is an individual and defendant a corporation should not malee any difference with you. In considering and deciding this case you should look solely to the evidence for the facts, and to the instructions of the court for the law of the case, and find your verdict accordingly without reference to' who is plaintiff or who defendant.
‘ ‘ 12. Although the jury may believe that deceased was intoxicated and while in that condition he went onto defendant’s track, and by reason of such intoxication laid down thereon, yet such intoxication will not excuse the deceased from the consequence of his own negligence, if any, in going onto said track and lying down thereon.
“13. Tou are instructed that the defendant was not under any obligation to furnish its ear with any particular kind of headlight, and if you believe from the evidence that the car which struck the said Goff was furnished with any kind of a headlight, and that said car was at the time lit up with lights on the inside, and was provided with windows in front through which lights could and did shine, and that a person possessed with ordinary eyesight could by looking have seen the approach of the car in time to leave the track and avoid being struck by the car, then the plaintiff cannot recover on the ground of there being an insufficient light.
“14. Although the jury may believe that defendant’s servants in charge of the car which it is alleged struck and killed said Goff were guilty of one or more of the acts of negligence described in the petition, yet, if the jury further believe that the said Goff, by his acts in going on defendant’s track, directly contributed to and was the proximate cause of said injury, then you will find the issues for the defendant.
“15. You are the sole judges of the weight of the evidence and the credibility of the witnesses. In determining the credibility of a witness or the weight and value which you should give to his or her testimony you should take into consideration the character of the witness, his or her manner on the witness stand, his or her interest if any in the result of the trial, his or her relations to or feeling towards the plaintiff or defendant, the probability or improbability of his or her statements, as well as all the facts and circumstances in evidence. If, upon a consideration of all these facts and circumstances and all other facts and circumstances in evidence, you believe that any witness has wilfully or intentionally testified falsely to any material matter in issue you should disregard such false testimony, and may disregard all the testimony of such witness.”

Some criticism is made of the court’s modification of the instructions, and the defendant complains of these changed, but after a careful examination of the fifteen instructions given by the court, we are of the opinion that the defendant has no ground of complaint on this score; indeed, we think that the law of the case on the part of the defendant could well have been stated in not exceeding five declarations of law applicable to all the material facts upon which the defense was based.

The defendant also complains of the refusal of other instructions, but this court has time and again held that it was not error to refuse instructions, even though they were correct statements of the law, when the instructions given fully covered the case, and there was no error in refusing these additional instructions, nor im the modifications of those that were given when all read together. Upon the whole record, we think the case was fairly submitted to the jury and their verdict upon the controverted facts ought not to be disturbed. The judgment of the circuit court is therefore affirmed.

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