author: WILLIAMS, C.

text:
    THE STATE v. OTTO HENSCHEL, Appellant.
    Division Two,
    May 20, 1913.
    INFORMATION: Burglary and Larceny: Incorporation of Owner Must be Alleged. An information charging burglary and larceny from a company must, to be valid, state whether the company is a corporation or a partnership.
    Appeal from Montgomery Circuit Court. — Hon. Bernard H. Dyer, Special Judge.
    Reversed and remanded.

      E. Rosenberger & Son, J. V. Rebel and James F. Ball for appellant.
    (1) Notwithstanding his plea of guilty, a defendant is entitled to his appeal or writ of error, and if no crime is charged in the information, then none is confessed by pleading guilty thereto. The only effect of such a plea is to admit the truth of whatever is sufficiently charged. State v. Levy, 119 Mo. 434; State v. Rosenblatt, 185 Mo. 114; State v. Kelley, 206 Mo. 685. (2) This conviction grows out of the filing of a verified information in two counts, jointly charging appellant and another with the crimes of burglary and larceny and receiving stolen property. A severance was granted; the other, defendant, who is a man of mature age, went to trial before a jury and was triumphantly acquitted. The defendant, who is only a lad nineteen years of age, upon the advice of counsel entered a plea of guilty and the State dismissed as to the second count, which charged receiving stolen property, and appellant was sentenced under the count which charged burglary and larceny. If any mistake was committed on the part of the appellant in this case, the blame rests solely upon his counsel. When the appellant entered his plea of guilty he was advised by his counsel that the information charged no offense and that he was confessing to nothing by entering a plea of guilty thereto. When appellant’s counsel advised appellant to enter his plea of guilty they had. before them the following cases: State v. Jones, 168 Mo'. 402; State v. Horned, 178 Mo. 59; State v. Jones, 194 Mo. 268; State v. Kelley, 206 Mo. 685; State v. Clark, 223 Mo. 48. The same doctrine is announced in the cases of State v. Boehler, 148 Mo. App. 614, and State v. Murphy, 147 S. W. 520.' In view of the fact that the defendant entered his plea of guilty on the advice of his counsel, who had before them the cases above cited and relied thereon it would now be working an injustice and a cruel hardship upon appellant to overrule the long line of authorities just quoted and compel him to serve a term of four years in the penitentiary without permitting a jury to pass on his guilt or innocence. Especially is this true when we take .into consideration that his codefendant, who was prosecuted upon the same charge, went before a jury and was acquitted. The attorney-general concedes that the cases just above cited, and relied upon by us when we advised the defendant that by entering a plea of guilty he was confessing nothing, announce the doctrine “that it is necessary in an information, or indictment, to charge that the car broken into and entered, and the property stolen, was’ the property of a copartnership, an individual, or corporation.” But the attorney-general suggests that on the authority of the old case of State v. Shields, 89 Mo. 259, the cases just cited and relied upon ought to be overruled. The case of State v. Shields has never been followed or referred to at any time by this court, while in all of the cases cited herein and relied upon by defendant when he entered his plea of guilty, this ruling of law has been firmly established in this State. In State v. Horned, 178 Mo. 59, the attorney-general conceded the information (one similar to this one) was had. Had counsel for appellant not placed, implicit reliance upon the previous rulings of this court on the question under consideration, and had we not believed that this court would follow its former rulings, certainly Ave would not have been so fool-hardy or foolish as to have permitted a lad to enter a plea of guilty, when the evidence against him was very meager, but Ave would have insisted upon a trial before a jury, feeling that the innocence of our client could he easily shown, and that he would have been fully Adndicated. The appellant has never had his day in court. He has never faced a jury, and in view of the authorities cited and relied upon by appellant when he entered his plea of guilty, this court ought not even consider setting aside a long line of established authorities and reaffirm the doctrine laid down in an obsolete case which has long since been forgotton by the bench and bar of Missouri, and which this court and our other appellate courts have refused to follow.

      Elliott W. Major, Attorney-General, and Charles O. Revelle, Assistant Attorney-General, for the State.
    In State v. Shields, 89 Mo. 259, Judge Norton said: “The specific objection made to the indictment is, that it neither alleges that the Missouri Pacific Railroad Company was a corporation, nor that, as such, it was capable of owning property. The precise question presented has not, so far as I am aware, been passed upon by this court, but the identical point was raised in the following cases, where it is held that it was not necessary-to the sufficiency of an indictment that it should allege either that the owner of the property was a corporation, or that, as such, it was capable of owning property: People v. McCloskey, 5 Parker Cr. R. 57; Commonwealth v. Williams, 2 Cush. 582; State v. Scripture, 42 N. IT. 485; State v. Rand, 33 N. IT. 216; 1 Wharton’s Prac. 378.” To this we add: State v. Fisher, 40 N. J. L. 170; Hatfield v. State, 76 Ga. 500; 6 Cyc. 214; State v. Sims, 25 Nev. 444; People v. Henry, 77 Cal. 445; People v. Rogers, 81 Cal. 209; Burke v. .State,' .34 Ohio St. 79; Hamilton v. State, 34 Ohio St. 82; Fisher v. State, 40 N. J. L. 169; State v. Shields, 89 Mo. 259; 3 Ency. PI. & Prac. 757, 761. We find no fault with the ruling that the name of the owner must be alleged, and the cases from other jurisdictions, as well as the decision of Judge Norton in the Shields case, supra, likewise hold that this is necessary, but after doing this, and describing the owner by lawful name, we insist that further particularization, or more minute description of the owner is not required by good pleading. Would it not be just as reasonable to require, in charging the ownership to be in an individual, that it further describe him as a “person then and there living and being.” Such matters are merely descriptive and are not essential, but really should be treated as surplusage. Besides, we have Sec. 5115, R. S. 1909, which provides that no indictment or information shall be deemed invalid, nor shall the trial judgment, or other proceedings thereon be set aside or in any manner affected because of any defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits. Some of the cases from other jurisdictions, and which we have hei'etofore cited, apply statutes of this character to this ideutical proposition, and hold that, under their provisions, an indictment is not invalid because of failure to allege that the owner of property is a corporation o.r partnership. This court has frequently applied these statutes to similar questions, but in the five cases relied upon by appellant, the court seems to have overlooked them. We respectfully submit that the failure to allege whether the Wabash Railroad Company was a corporation or a copartnership could in no manner tend to the prejudice of appellant’s substantial rights. The principal reason for requiring the ownership of the property to be stated in an indictment for burglary is for the purpose of showing on the record that .the house alleged to have been broken into was not the property of the accused, in as much as one cannot commit the offense of burglary by breaking into his own house. We respectfully submit that an additional particularization of the owner as a “corporation” or “co-partnership” is not necessary in order to show on the record that this property was not the property of appellant. The proposition that this was the property of appellant is completely and fully negatived by the allegations that he “feloniously and burglariously forcibly did break and enter with the intent then and there and thereby feloniously and burglariously to steal, take and carry away, etc.,” and that he did then and there feloniously and burglariously steal, take and carry away with the intent then and there to deprive the owner of the use thereof, and to convert the same to his own use.” The only other reason for the statement of ownership is to so identify the offense as to protect the accused from a second prosecution for the same offense. Concerning the reasons for the statement of ownership, see: State v. Trapp, 17 S. O. 467. After the corporate name of the owner is alleged, we insist'that this additional description or particularization is not necessary for this purpose, and does not even tend to accomplish this end, and this for the following reasons: If the owner is an individual, the statement of his name alone is sufficient. If the owner is a partnership, the ownership is laid and alleged in the individual names of the partners, and must be. It is not even necessary to set out the style or name of the partnership. 6 Cyc. 215, and cases cited. Missouri cases heretofore cited. If the owner is a corporation, the ownership must be laid in the corporation by its corporate name. From this it follows that if any name is alleged in an indictment, other than the name of an individual or individuals, the defendant knows (since he is presumed to know the layr), that the owner is neither an individual nor a partnership, but is a corporation. There is absolutely no owner which, under the law, can be referred to by any name other than that of individuals, except a corporation, and when a name is used indicating upon its face, as does the name of “Wabash Railroad Company,” that it is not the name of an individual or individuals, the presumption must be indulged, and the defendant is fully informed, that the owner is a corporation. Identity of names creates the presumption of identity of persons, and if, in a second prosecution, the ownership of the property herein described were alleged to be in “Wabash Railroad Company,” the record would disclose upon its face that defendant had already been prosecuted for the offense here charged, and this regardless of the fact that the indictment does not specifically allege that the Wabash Railroad Company is a corporation.
   WILLIAMS, C.

Defendant entered his plea of guilty to an information charging him with the burglary of a car of the Wabash Railroad Company and the larceny of certain goods belonging to the company contained in said car. The court assessed defendant’s punishment for the crime of burglary at two years in the penitentiary, and for the crime of larceny at two years in the penitentiary, and entered judgment sentencing defendant to four years in the penitentiary.

The information fails to allege whether the railroad company is a corporation or copartnership, and if a copartnership, fails to state the names of the co-partners.

Defendant perfected an appeal to this court, and assigns as error the above-mentioned omission.

In the case of State v. Jones, 168 Mo. 398, it was held that a similar omission rendered the information bad. In that case Judge Cantt, speaking for the court, said:

“It has always been necessary to allege and prove the ownership of the house charged to have been burglarized, and the ownership of chattels alleged to have been stolen. [2 East, P. C. 650.] Where ownership is laid in a corporation, the fact of the incorporation should be alleged, and this is not affected by the fact that proof of the existence of the corporation de facto will sustain the charge. As nothing is to be left to intendment, the defendant is entitled to know whether the State intends to show ownership in a firm composed of individuals or in a corporation. In this case he raised the objection in his motion in arrest, but it has often been ruled that he may take advantage of the defect in the indictment in this court for the first time. [State v. Patterson, 159 Mo. 98; Wharton’s Crim. Law, secs. 1828 and 1833; 2 Russell on Crimes, p. 100; Wallace v. People, 63 Ill. 451; 1 Bishop’s Crim. Prac. (3 Ed.), sec. 682; State v. Mead, 27 Vt. 722; Cohen v. People, 5 Parker’s C. R. 330; 2 Archbald’s Crim. Pl., 359; White v. State, 24 Tex. App. 231; Thurmond v. State, 30 Tex. App. 539; McCowan v. State, 58 Ark. 17.] There are cases to the contrary in other States, but in the absence of a statute we are relegated to the common law, and we hold the information bad in substance in failing to allege the names of the co-partners, if the .Drysdale-Ulen Hardware Company was a firm, and if a corporation in not alleging it was a corporation.”

In the case of State v. Horned, 178 Mo. 59, the information charged that the defendant burglarized “the depot of the Mississippi River and Bonne Terre Railway,” and the case was reversed and remanded because the information failed to allege that said railway was a corporation. In that case Judge Pox says:

“It may be ever so notorious that the railway mentioned was a corporation, yet that would not supply the necessary allegation that it was a corporation in the information or indictment. The general reputation and notoriety that it was a corporation would be sufficient proof of the existence of the corporation by virtue of the provisions of section 2634, Revised Statutes 1899; but before that proof would be admissible there must be an appropriate allegation in the information upon which to base it.”

In the case of State v. Kelley, 206 Mo. 685. the information charged the defendant with the burglary of a car-of the St. Louis and San Francisco Railway Companv and the larceny of property therein. The defendant in that case entered a plea of guilty, bnt the information was held to be fatally defective because it failed to allege that said railway company was a corporation or copartnership.

In the case of State v. Clark, 223 Mo. 48, the defendant was charged with the larceny of certain goods “of the Chicago, Burlington & Quincy Railway Company,” and the information was held to be “fatally defective in not charging whether the alleged owner of the property was a corporation or a copartnership, and if a copartnership, in not giving the individual members thereof.”

We cannot admit the contention of the Attorney-General that the above eases should be ‘overruled on the authority of State v. Shields, 89 Mo. 259, or by force of sections 5114, 5115, Revised Statutes 1909. It is true the Shields case holds the contrary of the more recent opinions above cited; but no reason or warrant is given for the holding in that case save the authority of the cases therein cited. One of such cases is that of Commonwealth v. Williams, 2 Cush. 582. In that case the defendant was charged with burglarizing “the city hall of the City of Charlestown,” Mass. The objection to the indictment was that it did not charge that the city of Charlestown owned the city hall; but the court held that the indictment was sufficient in that regard. It will be seen at a glance that that case is not in point here. A review of each of the other cases cited in the opinion in the Shields case discloses the fact that none of them supports the holding therein.

Section 5114, Revised Statutes 1909, has reference to variance between the charge and proof, and in no manner undertakes to remedy or cure defects that may be found in the indictment or information. Section 5115, however, enumerates various defects which when found in the indictment or information will not render the same invalid, or cause the “trial, judgment or other proceedings thereon” to he "stayed, arrested or in any manner affected.” Snch defect as shown in the information in tiffs case is not mentioned in said section, hut said section, after mentioning many defects which shall he considered harmless, states, “nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” And then the Legislature, apparently in order that the section might not he given wider application than intended, places the following proviso at the end of the section: “Provided that nothing herein shall be so construed as to render valid any indictment which does not fully inform the defendant of the offense of which he stands charged. ”

It will he noticed from the authorities cited above that the common law required that the indictment charge the ownership of the building burglarized or the property stolen. The allegation of ownership has always been considered as essential. As was said in State v. Clark, supra, l. c. 52: "Defendants in criminal cases are entitled to he informed by the pleadings of the charges against them, and the question of the ownership of property in burglary and larceny is an essential element in the charge.” We are not aware of any rule or authority to justify the statement that a company name raises the presumption that the company is a corporation. It is well settled that a defendant charged with burglary or larceny is entitled to he informed as to who owns the property alleged to have been burglarized or stolen, and he is entitled to get this information from the information itself, and if the information designates the alleged owner by a company name, without stating that such company is a corporation or copartnership, and if a copartnership, it fails to give the individual members thereof, it thereby fails to fully inform the defendant of a very essential element of the offense of which he stands-charged, within the meaning of the proviso of section 5115, snpra.

“It it not sufficient at common law to aver ownership in a partnership without giving the names of the partners.” [2 Wharton on Crim. Law (11 Ed.), sec. 1220.] There is conflict of common law authority a,s to whether it is necessary to aver that the company is a corporation. Mr. Wharton, in his work on Criminal Pleading and Practice [9 Ed.], in footnote to section 110, says: ‘ ‘ The question depends upon whether the court takes judicial notice of the (company) charter.” Joyce on Indictments, p. 403, section 361, states the general rule thus:

“Where the party against whom an offense has been committed is a corporation, an indictment therefor should, as a general rule, state the corporate name and that it is a corporation. So it has been decided in New York that it is necessary to allege in the indictment and also to prove at the trial, that the corporation alleged to have been injured by the offense of the defendant was an existing corporation. And in this connection it is said that ‘the indictment should aver facts which show that the company is a corporation. The use of a name which may import a corporation, or which, on the other hand, may be that of a voluntary association or a simple partnership, will not suffice.’ ”

We think the rule is correctly stated in the case of State v. Jones, supra, and cases following, and in conformity thereto the information is held invalid.

The judgment is reversed and the cause remanded.

Roy, C., dissents.

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

Walker and Paris, JJ., concur; Brown, P. J., dissents.


source: Caselaw Access Project

author: ROY, C.

license: Public Domain

text:
    THE STATE v. C. C. SMITH, Appellant.
    Division Two,
    May 20, 1913.
    1. EVIDENCE: Cross-Examination of Character Witness: Similar Acts. It was proper on cross-examination of the defendant’s character witness, to require him to state whether he had heard talk to the effect that defendant, on trial for assault with intent to rape, had been involved in similar trouble with other girls.
    2. -: Of Similar Offense: Incompetent. Testimony that a defendant, on trial for assault with intent to rape, had made a similar attempt upon the witness, another woman, is incompetent, and its admission is error warranting reversal.
    Appeal from Douglas Circuit Court. — Hon. John T. Moore, Judge.
    Reversed and remanded.

      H. H. Ball, J. 8. Clarke and A. H. Buchanan for appellant.
    The court permitted the State in rebuttal to introduce Katie Ashinhurst and elicit from her testimony of specific crimes and acts of wrongdoing in disregard of the well known and long established principle of law that this kind of testimony is not admissible for any purpose in a case of this kind. The court also permitted the State to ask defendant’s character witness all manner of questions as to specific crimes and insinuations of other specific acts of wrong-doing. State v. Teeter, 239 Mo. 475; State v. McDonough, 232 Mo. 219; State v. Phillips, 233 Mo. 299; State v. Lockett, 168 Mo. 481; State v. Prendible, 165 Mo. 329; State v. Gessell, 124 Mo. 531; Constitution of Missouri, art. 2, sec. 22.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
    It was not improper for the prosecuting attorney to ask defendant’s character witnesses if they had not heard that defendant had committed or been accused of specific acts and misconduct. State v. Goodwin, 102 Ala. 87; Thompson v. State, 100 Ala. 70; State v. Arnold, 12 Iowa, 479; People v. 'Watson, 3 Silv. Sup. 560, 7 N. Y. Supp. 532; State v. Dill, 48 S. O. 249'. The admissibility of the testimony of the witness, Katie Ashinhnrst, formerly Katie Hannah, presents a more serious and difficult question. We believe her testimony to he competent as explaining the conduct of' defendant toward the prosecuting witness and showing defendant’s intent in laying his hands upon her. State v. Jackson, 112 Mo. 589; State v. Bayne, 88 Mo. 604; State v. Myers, 82 Mo. 558; State v. Savony, 95 Mo. 349; State v. Spaugh, 200 Mo. 594; Staté v. Bailey, 190 Mo. 279; State v. Scott, 172 Mo. 542; State v. Hyde, 234 Mo. 230. On the question of the right of the State to prove the commission or attempt to commit other similar crimes the attention of the court is called to the cases collated in People v. Molineux, 62 L. R. A. 193, under division 9, p. 329, where it appears from the collated cases there, that the general rule has been most liberally extended, and for a reason peculiar to sexual offenses. This testimony was competent in view of defendant’s evidence as follows: “A. I used to cut up with all the children in the country, and play with them, but to attempt anything of that kind, I never thought of it.”
   ROY, C.

Defendant was convicted of an assault with intent to rape Gladys Penny, a female child under the age of fourteen years, and was sentenced to two years in the penitentiary.

The prosecuting witness testified that she was at Cold Springs in March or April, 1910, when she was about eleven years old. She lived near that place. She went there horseback for groceries. That defendant was there and left a few minutes before she did; he was walking; she caught up with him. lie began fondling her. She tried to get away and they passed beyond where he should have turned off to go home. When they got to the old.Nawl place, he pulled her off the horse, and tried to throw her down. A man came along and he let her go. After the man passed, defendant continued his attempts to induce her to yield. He let her go upon her .promising to yield to him the next time they met. He threatened to kill her if she ever told. She did not tell her mother or any one for about a year.

The defendant testified in his own behalf, denying the charge. He admitted that he was always fond of playing with children. The defendant then put J. D. Woods on the stand, who testified to defendant’s good moral character. On cross-examination, he testified that he had heard talk of several similar attempts by defendant against girls and women. The defendant objected to the admission of that evidence.

In rebuttal, Kate Ashinhurst testified for the State that in 1902, when she was twelve years old, the defendant was hauling cane to her father’s mill, and that she was sent home with him in his wagon for some butter, and that during the trip to his house, in a hollow, he stopped the wagon and tried to induce her to submit to him. She tried to leave the wagon. He continued to fondle her in a lascivious way until she made him quit.

To that evidence the defendant objected on the ground that it showed another offense, and that defendant’s character could not be impeached by specific acts.

The Court instructed the jury as to an attempt to forcibly rape without requiring them to find that the child was under fourteen years of age. It is admitted in appellant’s brief that she was ten or eleven years old when the alleged offense occurred.

I. It was proper on cross-examination of the defendant’s character witness to require him to state whether he had heard talk to the effect that defendant had been involved in simr ilar trouble with other girls. This question was fully discussed in State v. Parker, 172 Mo. l. c. 206-207, and such evidence was held proper on cross-examination, also in State v. McLaughlin, 149 Mo. l. c. 33, and State v. Beckner, 194 Mo. l. c. 298.

II. The evidence of Kate Ashinhurst, a witness for the State, that the defendant had made a similar attempt against her, was incompetent and constitutes reversible error, as was held in State v. Teeter, 239 Mo. l. c. 485; State v. Phillips, 233 Mo. l. c. 305; State v. Lockett, 168 Mo. 481.

The defendant was charged with one crime, he was confronted with evidence of two offenses, and the jury was instructed as to an offense different from the one charged.

The judgment is reversed, and the cause remanded.

Williams, C., concurs.

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

All the judges concur.


author: BROWN, P. J.

text:
    THE STATE v. ALBERT SINCLAIR, Appellant.
    Division Two,
    May 20, 1913.
    1. MARITAL RELATION: Husband’s Right to Enter Wife’s Home. By the statute (Sec. 8309, R. S. 1909) declaring that “all real estate . . . belonging to any married woman at her marriage . . . shall, together with all income, increase and the profits thereof, be and remain her separate property and under her sole control,” a wife is given the exclusive control of her real estate, regardless of whether she is living with or apart from her husband, and regardless of whether she is faithful or unfaithful to her marital obligations; and a husband, who is living apart frofn his wife, has no present right or authority, without her consent, to enter upon her real estate belonging to her at the time of their marriage and whereon she has her own domicile.
    2. -: -: Right of Wife to Protection: Erroneous Instruction. The wife having the right to exclude from her home and premises her husband from whom she had separated, and having requested the defendant (her son) to protect her, it was reversible error to instruct the jury that the husband had the same right to enter the wife’s home at the time .defendant killed him as defendant had, and that defendant had no legal right to forbid deceased to enter upon the wife’s premises.
    3. -:--: -: Forbidding Husband Entrance. Whether or not it was necessary for defendant to forbid the husband to enter the wife’s premises is a question for the jury; but the forbidding of him to enter, by the wife’s son who had been ,requested .by her to protect her, did not destroy the son’s right of self-defense.
    4. -: -: Trespass: Defense. The mere act of a husband in attempting to enter his wife’s house without her permission or consent does not of itself justify her son, who has been requested by her to protect her, in killing the husband. No more force than is necessary should ever be used in preventing a trespass.
    5. JUSTIFIABLE HOMICIDE: Threats and Demonstration. Where deceased, who was living apart from his wife, had made enough threats to warrant the gravest apprehension on the part of herself and her son, and deceased had assumed a menacing attitude and was making menacing demonstrations at the time the son shot him, the shooting was justifiable.

      6. HOMICIDE: Second Shot: Intent: Comment. It was not error to refuse to instruct the jury that, if they found the first shot hilled deceased, they could not convict the defendant because he fired a second shot while defendant was falling or after he had fallen — -for two reasons: first, all the acts of defendant at the time of the hilling are admissible as tending to establish defendant’s intent; and, second, such an instruction is an unwarranted comment on the evidence.
    7. REMARKS OF COUNSEL: Lawlessness in County: Timely Objection. An assertion by the prosecuting attorney that lawlessness is prevalent in the county and that the 'law can be enforced only against one class of citizens, is improper, but an objection to it made for the first time after the argument is closed, is not timely made.
    Appeal from Dunklin Circuit Court. — Hon. W. S. G. Walker, Judge.
    Reversed and remanded.

      T. B. B. Ely and Fort $ Zimmerman for appellant.
    (1) If it be granted tbat the home of defendant’s mother, after the separation, followed the home of deceased, still, the deceased, having established his home at a place other than the place where the mother lived, and where he was killed, could not claim the mother’s home as his home, because he had established his home elsewhere. The law never required the husband to follow the wife to a new home, but at one time required the wife .to follow the husband to the husband’s new home. In this case, in no view of the law was the place where defendant’s mother lived the home of the deceased and therefore, under the facts and circumstances of this case, deceased did not have as much right in the home of defendant’s mother as defendant had. But the wife could acquire a separate home after the separation. There is substantial evidence in this record that defendant’s mother and deceased had been living apart for quite awhile before the homicide; that the deceased was to blame for the separation; that the place where the mother lived was her place; that deceased lived at another place and that the mother had tried to hire deceased not to bother her family again and not to visit her home again. Under such circumstances the home of defendant’s mother was not the home of deceased. Gould v. Crow, 57 Mo. 204; Shute v. Sargent, 36 Atl. 282; Matter of Flo ranee, 54 Hun (N;>Y.), 328-. The wife has a right to acquire a separate domicile where the separation is caused by the husband’s misconduct, and no subsequently acquired domicile of his could draw after it her domicile. Shaw v. Shaw, 98 Mass. 158; Johnson v. Johnson, 57 Kan. 343; Derby v. Derby, 14 111. App. 645. If defendant’s mother had the right to forbid the deceased to enter her home again, then she could delegate ■that right to her son, the defendant, and if she did delegate it to him he was guilty of no wrong in forbidding deceased to enter her home. Crittenden v. Com., .9 S. W. 386; Stanley v. Com., 6 S. "W. 155. This instruction was a suggestion to the jury that, in the court’s opinion, defendant was the aggressor in the difficulty in forbidding deceased to enter his mother’s home without right to do so. Glaze v. State, 45 S. W. 906; State v. Lipp, 130 Mo. App. 400; Campbell v. Com., 11 S. W. 290. The right of the- child to defend the mother against fraud and violence cannot be questioned on moral grounds, and if it may be questioned on legal grounds so much the worse for the law. Nor can such right be questioned in the light of nature’s laws, for the latter laws have assigned this right to the beasts of the field and it prompts them to fly to their offspring when in danger • of bodily harm. 25 Am. & Eng. Ency. Law (2 Ed.), 274; State v. Hickman, 95 Mo. 322; State v. Lipp, 130 Mo. App. 400. (2) The instruction being a good request for an instru.ction to the jury to the effect that if the jury found from the evidence that the first shot killed the deceased instantly, and was fired by defendant in tbe necessary defense of his life, then the fact, if the jury found it to be a fact, that defendant fired a second shot into the body of deceased, after he had fallen to the ground and was dead, could not deprive defendant of his right of self-defense at the time he -fired the first shot, should have been given, for the probabilities are strong that, if it had been given, the jury would have acquitted defendant on the ground of self-defense. If the first shot killed the deceased instantly, and the second shot was fired into the body of deceased after he had fallen upon the ground arid was dead, the defendant committed no crime in firing the second shot. Wilson v. State, 24 S. W. 409; Rogers v. State, 29 S. W. 894; Anderson v. State, 65 S. W. 523; 21 Am. & Eng. Ency. Law (2 Ed.), 92.

      John T. Barker, Attorney-General, for the State; Paul P. Prosser, of counsel.
    (1) Appellant argues and presents authorities upon the question of the lawful domicile of a husband and wife who have separated from each other; but we submit that the question’ of a lawful domicile for the purpose of bringing a divorce suit, or any other suit, is not the question involved here. The question here is simply one of the rights of the parties in the purview o’f the criminal law. No authority whatever is needed upon the very elementary proposition that a husband has the right to enter the home of his wife and no man has the right to deny him that privilege. Indeed, the fact is so self-evident, from the very relation of husband and wife itself, that a definite statement of such a rule would appear superfluous. And that is as far as the instruction goes. In stating that the deceased, Sam Jones, had “as much right” to enter the home of his wife as did the defendant, the instruction is altogether favorable to the defendant, who did not have “as much right” to enter snch home as did the deceased. Under the evidence, even as stated by defendant himself, the instruction was eminently proper. State v. Evans, 124 Mo. 410; State v. Reed, 154 Mo. 131; State v. Matthews, 148 Mo. 194; Commonwealth v. Johnson, 213 Pa. St., 432; Wharton on Homicide (3 Ed.), sec. 309. (2) Even if the first shot did kill the deceased, evidence of the second was certainly competent as a part of the res gestae and as showing the animus with which the act was committed. Whether part of the res gestae or not, we are not aware of any exception to the rule that the movements, actions, conduct and voluntary statements of a person charged with a crime, made after the commission of the alleged offense, are always competent evidence. State v. Gabriel, 88 Mo. 639; State v. Daly, 210 Mo. 676. It was not for the court to separate and divide the details of the one act, and an instruction attempting to dissociate the second shot from the first shot would have been manifestly improper and would have served only to confuse and mislead the jury. State v. Thornhill, 177 Mo. 697; State v. Edwards, 203 Mo. 545.
   BROWN, P. J.

Charged with murdering his stepfather, Sam Jones, defendant was convicted of manslaughter in the fourth degree, and appeals from a judgment of the circuit court of Dunklin county fixing his punishment at two years in the penitentiary.

All parties connected with this tragedy were farmers residing in the southern part of Dunklin county, Missouri. In the year 1911, Sam Jones, the deceased, a man of fifty-seven years of age, was married to Mrs. M. L. Sinclair, a widow, who resided upon her own farm. She is the mother of defendant.

After the marriage deceased (Jones) lived upon his wife’s farm; the family consisting of deceased, his wife, Jeff Sinclair, a fourteen year old son of his wife by a former marriage, and Mrs. Gargus, Ms mother-ind aw. The defendant resided on the same farm a short distance from his mother.

About six weeks before the tragedy deceased ajad his wife separated, deceased establishing his home with a half-brother named Baker about two miles from the home of his wife.

The cause of the separation is not made clear by the evidence. Deceased told one witness that he wanted to live with his wife, but she would not permit him. To some witnesses he indicated that defendant was responsible for the separation, and to other witnesses he placed the blame for the separation upon Mrs. Gargus, his mother-in-law. After the separation, deceased replevined a team of horses from his wife, which replevin suit was still pending when the killing oc cnrred.

On the morning of April 22,1912, deceased went to the home of his wife for the alleged purpose of obtaining some clothes he had left there. He took with Mm a small repeating rifle, which he set down outside the yard. Defendant was at the home of his mother when deceased arrived there, and when deceased started to enter the yard defendant killed him with a shot gun.

Defendant’s version of the shooting is that when he saw the deceased approaching his mother’s house he warned him to stay out, but deceased did not stop. Defendant then took a shot gun out of the rack, loaded it and again told deceased not to come into the house, whereupon deceased placed his hand upon his hip pocket and said to defendant: “Don’t you move or -I will kill you.” Defendant then shot deceased in the left side, killing him instantly. Two shots were fired, the last one when deceased was falling or after he had fallen.

There was no eye-witness to the killing except defendant. Jones’s body was found just inside the gate of Ms wife’s yard. He had no weapon upon his person except a rock in Ms right hip pocket, which rock weighed ahont three-fourths of a pound. The coroner, a physician, gave it as Ms opinion that the rock was large enough with which to kill a man, hut other witnesses stated that Jones had been carrying the rock a year or more “for luck” and they did not think it a dangerous weapon.

The first difficulty between defendant and de-_ ceased occurred in December, 1911, when they, with several other persons, were killing hogs. On that occasion defendant’s fourteen year old brother, Jeff, was filling kettles with water to scald hogs. Deceased and defendant were scraping hogs with knives. Defendant’s brother became very negligent about his work in filling the kettles and deceased started to slap him. At this point defendant became very angry and, sticking his knife in the ground', said to deceased: “By God, I won’t stand for that.” Whereupon deceased started to assault defendant with a knife, but was caught and prevented from doing so by one Bollinger, a bystander. A few hours later deceased stated to some parties with whom he was eating dinner that he was going to run his wife’s farm or somebody would die.

Witness Robert Raines testified that he was at Mrs. Jones’s house shortly after the separation and heard defendant state in the presence of his mother and grandmother that if deceased ever came to his house he would kill him. This threat was denied by defendant, his mother and also his grandmother.

A few weeks before the tragedy deceased visited the home of Ms wife in company with a neighbor to procure an account book he had left there. Defendant was m his mother’s house at the time, but, at her request, he left just before deceased came in.

Mrs. Jones testified that when she and deceased separated, deceased told her that defendant was the cause of the separation, and that he (deceased) would kill defendant if it was the last thing he ever did; “that they could not do any thing more than take him up to Kennett and hang him. ’ ’

Mrs. Jones further testified that she communicated the above threat to defendant; that she was afraid of deceased and had requested defendant to protect Her; that, although she had furnished the money to pay for the horses which deceased had replevined, she offered to give him the horses if he would go away and let her and her family alone. Mrs. Jones’s testimony was somewhat weakened by the fact that sh¿ testified at the coroner’s inquest that she had not heard deceased make any threats against defendant. She admitted swearing falsely at the inquest, but stated that she did so because she was advised by two of her neighbors not to tell the coroner anything except what happened the morning that her husband was killed. One of the neighbors admitted he gave her this advice. .

Other threats were proved to have been made by deceased against defendant and some of them communicated to the latter.

Practically all of the neighbors seemed to have understood that there was much animosity existing between deceased and defendant. Deceased’s half-brother, Baker, with whom he was living, advised him not to go to his wife’s house the morning of the killing. Ed Chailland, a cousin, with whom - deceased stopped several days after the separation, and who signed the deceased’s bond in the replevin suit, testified that he had advised deceased to stay away from the home of his wife, and that in response to this advice deceased gave him the “horse laugh,” and said that Albert (meaning defendant) did not have nerve enough to hurt anybody.

The defendant’s explanation of the killing, made in the presence of his neighbors immediately after it took place, was substantially the same as his evidence given at the trial.

Defendant claimed that he had gone to his mother’s house just a few minutes before Jones arrived to get some smoking tobacco which his younger brother, Jeff, told him was there. Defendant’s mother testified that she saw deceased coming with a gun on his shoulder and that she went out in the garden back of the house where her mother was and, therefore, did not see the shooting.

A short while before the tragedy defendant was plowing in a field not far from his mother’s home, and the surrounding circumstances were such that the jury might have inferred that he saw deceased approaching his mother’s home and went there to drive him away of kill him. However, there was no direct evidence of that fact.

Most of the witnesses, both for the State and the defendant, testified that prior to the killing defendant bore a good reputation, except that on one occásion he deserted his wife during a short period of time.

I. The chief assignment of error relied upon for reversal is the giving of the following instruction upon behalf of the State.

“11. You are further instructed that under the law Sam Jones had as much right to enter the home of Mrs. Sam Jones as did the defendant, and that the defendant had no legal right to forbid Sam Jones coming in at the home of his, Sam Jones’s, wife, and you cannot justify or excuse the homicide, because you may believe from the evidence that the defendant forbade Sam Jones entering the yard or coming in at the home of his wife; and you are further instructed that the' defendant had no right to use any force whatever to prohibit Sam Jones from entering that home or that house.” Under the evidence in this case the giving of the above quoted instruction raises a somewhat delicate issue regarding the right of a husband who is not divorced from his wife, but living apart from her, to enter, without invitation, a home which she has established on her own land.

The defendant denies that deceased (Sam Jones) had any right to enter upon or into the property of his wife, citing Gould v. Crow, 57 Mo. l. c. 204; Shute v. Sargent, 36 Atl. 282; Matter of Florance, 54 Hun (N. Y.), 328. The effect of these decisions is that a wife, when not living with her husband, may establish a separate domicile, and that her husband’s domicile does not, under all circumstances, draw to it the domicile of the wife.

To sustain the action of the trial court in giving instruction numbered 11 the Attorney-General cites the cases of State v. Evans, 124 Mo. 397; Commonwealth v. Johnson, 213 Pa. St. 432; and Wharton on Homicide (3 Ed.), sec. 309.

In the case of State v. Evans, 124 Mo. l. c. 410, it was held that defendant Evans had the right to go into a field rented by deceased from defendant’s wife to look after rents due to defendant’s wife. That case is not in point here, because Evans was living with his wife, and it was not shown that the marriage did not take place at such a date as to give him a right to possess and collect the rents upon his wife’s lands. [Vanata v. Johnson, 170 Mo. 269.] We regret to say we have not been able to derive much light on this issue from any of the cases cited by learned counsel for the State or defendant. The foreign cases cited do not give us much aid upon the nature of the statutes they construe and they are, therefore, not very helpful, for the reason that the domestic relations between husband and wife are governed almost exclusively by the statutory provision of each commonwealth.

There was a time when, under the common law and statutes of England, the identity of the wife and her property rights (if any she had) were almost completely absorbed by or merged in the husband. Those arbitrary laws were, in a large measure, transplanted into this State by the adoption of the common law.

In Blackstone’s time the husband possessed an almost unrestrained right to regulate the conduct of his wife and to use her property, as he desired. He could even chastise, detain, or force her to remain with him against her will. But that condition of affairs has passed away, both in this country and in England. [Tiffany’s Persons & Domestie Relations (2 Ed.), p. 57.]

The rights of the wife to acquire and control her property free from the interference of her husband have multiplied so rapidly under our modern statutes that it is not an easy task to ascertain and define just what rights the husband retains to the society of his wife or the possession of her property at the present tima

We are impressed with the idea that in giving instruction numbered 11 the learned trial judge' had in mind the husband’s right to possess his wife’s real estate under section 8309, Revised Statutes 1909, as this section stood prior to the amendment of 1889. [See Sec. 3296, R, S. 1879; Sec. 6869, R. S. 1889; Vanata v. Johnson, 170 Mo. 269.]

Section 8309, Revised Statutes 1909, at the time deceased married defendant’s mother, contained the following provision:

“All real estate . . . belonging to any woman at her marriage . . . shall, together with all income, increase and profits thereof, be and remain her-separate property and under her sole control

This section has been construed to give the wife the exclusive control of her real estate, regardless of whether she is living with or apart from her husband, and regardless of whether she is faithful or unfaithful to her marital obligations. [Woodward v. Woodward, 148 Mo. 241.] However, she may voluntarily permit her husband to remain in her home and enjoy the use of her property without paying rent. [Donovan v. Griffith, 215 Mo. 149.]

"We are unahle to find any law which gives the husband while living apart from his wife any present rights in her real estate or any authority to enter upon same, except with her consent. The instruction complained of does not expressly say that the deceased had the right to enter his wife’s home without her consent, but it at least implies as much, and to that extent it is erroneous.

We find that the statute hereinbefore quoted gave the wife of deceased the right, with or without cause, to exclude him from her home. The evidence of the State’s witness Wagster, a relative of deceased, is to the effect that deceased wanted to resume marital relations with his wife, “but she would not let him.’’ A fair inference to be drawn from this evidence is that the wife had expelled deceased from her home and forced him to live elsewhere. If his wife testified truthfully she was exceedingly solicitous that he should remain away and had offered to surrender her claim to the horses he had replevined, provided he would go away and let her and her family alone. She stated that after the separation she requested deceased several times to take all his things and stay away from her house.

She further testified that deceased threatened to kill defendant (her son); that she communicated this threat to defendant and asked him to protect her. If this testimony is true it is quite clear that defendant had a right to enter her home, and that she did not want deceased to come there any more.

The wife of deceased possessing, as we have seen, the lawful power to exclude him from her home, she undoubtedly had the right to call to her aid the defendant (her son). to assist her in accomplishing that result (1 Bishop’s New Criminal Law, sec. 877); and, therefore, instruction numbered 11 telling the jury that defendant had no greater right to be in the home of his mother than deceased, and that he had no right to forbid deceased entering said home, was erroneous, and ignored entirely the evidence of defendant and his mother. This instruction, under the evidence in this case, constituted reversible error. [12 Cyc. 653.]

It may not have been necessary for defendant to refuse to allow deceased to enter his mother’s house in order to protect her. That was a question for the jury to pass upon in connection with all the other circumstances in the case. His act in forbidding the deceased to enter her house was not, under the circumstances, an unreasonable one, and he did not thereby provoke the difficulty so as to place himself beyond the protection of the law of self-defense.

Of course, the mere act of deceased in attempting to enter his wife’s house without her permission or consent did not of itself justify defendant in killing him. No more force than is necessary should ever be used in preventing a trespass. However, the menacing attitude of deceased and his threats made at the time he was killed, if defendant related them correctly, justified the shooting. If the witnesses have testified truthfully the deceased had made enough threats to warrant the gravest apprehension on the part of defendant and his mother.

In addition to. the threat made to defendant’s mother, deceased told witness George Bollinger that he was going to run his wife’s place or somebody would die. To witness Thompson he said: “Albert (defendant) has been meddling with my business and he is going to get hurt over it.” Mrs. Celia Miles testified that deceased told her that while his wife furnished the money to pay for the horses about which the replevin suit was pending, he would get the horses or he would kill them. On being admonished that it would be as great a wrong to kill a horse as a man, deceased replied: “Well, if it takes a man, a horse, or a whole family, that is what I will do.” At least two of these threats were communicated to defendant before the tragedy.

When all these threats are considered we think it was not unreasonable for defendant and his mother to forbid deceased entering her home.

We take judicial knowledge of the fact that an interruption of marital relations usually provokes the most violent and enduring anger. The old adage that, “Hell hath no fury like a woman scorned,” is only half of a well-known truth. It is the common knowledge of mankind that men frequently become so infuriated when their wives desert them that they assassinate their wives, as well as other persons suspected of giving aid or counsel to the deserting wife.

The learned Assistant Attorney-General in his oral argument at the bar of this court asserted that at the time the.homicide took place negotiations were pending to bring about a reconciliation and a resumption of the marital relations between deceased and his wife; also that defendant’s visit to his wife’s home,at the time he was killed was a peaceful mission to procure some clothes he had left there. One witness testified that he had made some effort to bring about a settlement of the lawsuit over the horses, but we have not been able to find a word of testimony in the record indicating that defendant’s mother had said or done anything tending to prove that she wanted to become reconciled to deceased. If deceased’s wife was desirous of re-establishing marital relations with her husband and there was substantial evidence that the last visit to her home was at her request, this case would appear in a very different light, but unfortunately for the State there is no evidence in the record before us to support that theory. In the light of the numerous threats made by deceased it was for the jury to determine whether in going to his wife’s house the last time he was on a peaceful mission or otherwise.

II. Defendant complains that the court refused an instruction, which, if given, would have told the jury that if they found that the first shot killed deceased, then they could not convict defendant because he fired the second shot.

This instruction was clearly erroneous and was properly refused. All the acts of defendant at the time of the killing were properly admissible as tending to establish his intent. [State v. Daly, 210 Mo. 664, l. c. 676.] This refused instruction violated another well-know rule of law, in that' it was an unwarranted comment upon the evidence. [State v. Driscoll, 235 Mo. 377, l. c. 385; and State v. Pierce, 243 Mo. 524, l. c. 531.]

III. It was contended by defendant that the court committed reversible error in permitting the prosecuting attorney without reprimand to refer to the prevalence of lawlessness in Dunklin county, and the alleged fact that the law had been enforced only against one class of citizens.

It appears that defendant did not object to the improper remarks at the time they were made, but only after the argument was closed, and the court being in doubt as to the precise nature of the remarks made heard evidence upon that point in considering the motion for new trial. While that part of the argument of the prosecutor complained of was improper, objection to the same was not made in a timely manner and it is not necessary for us to determine whether such remarks were sufficient under the circumstances to work a reversal.

For the error of the trial court in giving instruction numbered 11 on the part of the State, its judgment is reversed and the cause remanded.

Faris and Walker, JJ., concur.


author: FARIS, J.

text:
    THE STATE v. ED LAWHORN, Appellant.
    Division Two,
    May 20, 1913.
    1. INFORMATION: ifao Verification: Verified Complaint Not Sufficient. Where the information is not verified hy the oath of the prosecuting attorney, nor by the oath of some person competent to testify indorsed on or appended to it, nor supported by the affidavit of some person competent to testify in the case contained in a separate paper and filed with it, the information should be quashed. The fact that the complaint filed by the prosecuting attorney with the justice of the peace was verified by the oath of the prosecutrix, and that after a preliminary hearing defendant was held to await the action of the grand jury or the filing of an information against him, and that after a transcript, together with the verified complaint, was filed by the justice with the clerk of the circuit court, an information filed by the prosecuting attorney, in which it is stated the information is based upon the affidavit of said prosecutrix “herein filed,” there being no affidavit except the verified complaint, is not sufficient. A verified complaint and a verified information fulfill different offices. A verification of the complaint is not a verification ■ of the information.
    2. RAPE: Statement by Prosecutrix as to Fact of Rape Competent: Details Incompetent: Exceptions to Rule. The fact that prosecutrix made prompt complaint is always admissible in prosecutions for rape as an element of corroboration. The promptness of such complaint, in order to fulfill the legal requirements, depends upon the age of prosecutrix and upon the ¡facts of the case. But the details of the crime as related by prosecutrix to witnesses in the case are hearsay and not admissible, unless the defendant himself testifies to the fact of intercourse, or unless elicited by defendant, or unless offered by the State after testimony has been offered tending to impeach prosecutrix.
    3. -: No Sufficient Evidence. Passive consent to sexual intercourse removes the offense from the category of forcible ravishment; and while there is in this case evidence from which the jury might have found the defendant had sexual intercourse with prosecutrix, and, owing to her age, the facts may show him guilty of some statutory offense of which he is not charged, when all the circumstances are. considered they do not convince the mind that he was guilty of rape.
    Appeal from Shannon Circuit Court. — Hon. W. N. 'Evans, Judge.

      Reversed and remanded.

      Orchard & Cunningham for appellant.
    (1) The court erred in overruling the motion to quash the information, as said information was not verified by the prosecuting attorney nor by the prosecuting witness, nor by any one who would be a competent witness in said cause, neither was there an affidavit lodged .with said information. R. S. 1909, sec. 5057; State v. Brown, 181 Mo. 224; State v. Bonner, 178 Mo. 430. The prosecuting attorney presumably intended to base his information on the affidavit of Dorothy Benson which was filed before H. C. Meade, a justice of the peace, for the apprehension and preliminary examination of the defendant. Our contention is that is not the affidavit the statute contemplates. That affidavit is made and filed in a different forum and for a different purpose, therefore, could not be substituted to aid the information filed by the prosecuting attorney. (2) The court erred in permitting the father of Dorothy Benson to detail to the jury what the prosecutrix said to him, over the objection of the defendant. The prosecuting witness was in- court and testified, therefore, no third person had a right under the law to' testify as to what she had said to them. State v. Patrick, 107 Mo. 147; State v. G-rote, 109 Mo. 345; State v. Minton, 116 Mo. 605; State v. Nocton, 121 Mo. 537; State v. Punshon, 124 Mo. 448; State v. Rapp, 142 Mo. 443; State v. Pruett, 144 Mo. 92; State v. Huff, 161 Mo. 459. (3) The testimony is insufficient to support the verdict for the reason that the prosecutrix does not show-that she made the utmost resistance possible to repel the assault and to prevent the defendant from having intercourse with her, and if there was any resistance whatever it was merely a passive course of .conduct. A slight resistance is not sufficient; there must be no consent, however reluctant. State v. Burgdorf, 53 Mo. 65; State v. Perkins, 11 Mo. App. 82; State v. Wilson, 91 Mo. 413; State v. Patrick, 107 Mo. 147; State v. Jaeger, 63 Mo. 173; State v. Priestly, 74 Mo. 24; State v. Donnington, 246 Mo. 343.

      John T. Barker, Attorney-General, and Ernest A. Green, Assistant Attorney-General, for the State.
    (1) It is contended! that the court erred in overruling defendant’s motion to quash because the prosecuting attorney based his information on the affidavit ■of the prosecuting witness, Dorothy Benson, filed before H. O. Meade, the justice of the peace who conducted the preliminary examination in this case. There is absolutely no merit in this contention of appellant. Sec. 5057, E. S. 1909. Under this section of the statutes it has been held that an affidavit deposited with the circuit clerk is deemed filed .with the information. State v. Coleman, 186 Mo. 166. State v. Brown, 181 Mo. 224. (2) The testimony of the father of the prosecutrix as to what his daughter did and as to what she told him with reference to this assault was properly admitted by the trial court as evidence of a complaint •or outcry. State v. Patrick, 107 Mo. 163; State v. Warner, 74 Mo. 83; State v. Hatfield, 72 Mo. 518. (3) It is contended by appellant that the testimony is insufficient to support the verdict. We think not. The appellate court cannot say that the evidence -of the prosecutrix should be altogether ignored, and monstrous as the accusation against defendant may be it is a question of fact for the trial court and the jury. State v. Wilcox, 111 Mo. 569; State v. Dusenberry, 112 Mo. 277; State v. Marcks, 140 Mo. 656; State v. Harris, 150 Mo. 56. When the court considers that this prosecutrix was a- child of only fourteen years of age we feel that her testimony shows the utmost resistance on her part. Under such circumstances this court will not convert itself into a trier of facts and undertake to find a different result from that of the jury. State v. Matthews, 202 Mo. 147; State v. McCullough, 171 Mo. 574; State v. Tetrick, 199' Mo. 100; State v. Williams,-199 Mo. 137.
   FARIS, J.

Defendant was tried in the circuit court of Shannon county on the 9th day of January, 1912, upon the charge of rape. The triers of fact found him guilty thereof and assessed his punishment at imprisonment in the penitentiary for a term of five years. Front the sentence and judgment of the. court imposed in pursuance of the jury’s verdict, he has, after the usual motions for a new trial and in arrest of judgment, appealed to this court.

The information upon which this prosecution is based is, caption omitted, as follows:

“G. S. Sizemore, prosecuting attorney within and for the county of Shannon and State of Missouri, under his oath of office and upon the information of the affidavit of Dorothy Benson herein filed, informs the court that Ed Lawhorn on or about the 27th day of August, 1910, at the said county of Shannon, State, of Missouri, then and there in and upon one Dorothy Benson, unlawfully, violently and feloniously did make an assault, and her the said Dorothy Benson, then and there, unlawfully, forcibly and against her .will, feloniously did rape, ravish and carnally know; against the peace and dignity of the State. ’ ’

This information was not verified by the prosecuting attorney, though, as appears from the allegations therein, it was based upon a complaint, duly verified, by the prosecutrix and filed with one H. C. Meade, a justice of the peace of Shannon county. It appears that upon the filing of this complaint with the said justice of the peace a warrant was duly issued, and'after the proper procedure pursuant to statute, a preliminary trial was accorded defendant and he was held on bail to await the action of the grand jury, or the filing against Mm of an information. The transcript of the justice, together with the verified complaint, was filed in the office of the clerk of the circuit court by the justice of the peace prior to the filing of the information herein. No supporting affidavit, and in fact no affidavit other than the one filed with the justice of the peace in verification of the complaint aforesaid, was ever filed in the circuit court, nor was the information verified either by the prosecuting attorney or by anyone else. A motion to quash the information was filed by the defendant and by the court overruled, prior to his trial. In this motion to quash the lack of statutory verification of the information was strenuously urged, and has been properly preserved for review, and is here urged by the defendant.

The facts shown upon the trial on the part of the State are substantially as follows:

On August 27,1910, some sort of a picrnc occurred at West Eminence, in Shannon county. Present at this picnic were Dorothy Benson* the prosecutrix; Ed Lawhorn, the defendant; Jesse Benson, the father of prosecutrix; Joe Mahan, her uncle; Mrs. Deacon, an acquaintance of prosecutrix; Cynthia McDowell, also an acquaintance of prosecutrix; and others, but how many others, or how numerous were the others, does not appear from the record. Defendant Lawhorn was at work in some sort of a stand, then being operated upon the picnic grounds by one Daniel Emmons. Sometime during the day prosecutrix went to the stand where defendant was at work and had some conversation with him in the presence of her friend, CyntMa McDowell. Prosecutrix says that defendant inquired of-her how long she had been there, and whether or not she would be back again that night, and that he “set up the lemonade.” Defendant’s statement of this conversation differs from that of prosecutrix, but neither of them is corroborated, as one of them might well have been, by Cynthia McDowell, the latter not being called as a witness. Shortly after this conversation prosecutrix left the picnic ground for the purpose of going a little distance away into the brush, ostensibly, to attend to a call of nature. Leaving the picnic ground she passed along an old road, near which and about fifty yards distant from, the picnic ground, she passed her uncle, Joe Mahan, who was about his wagon, in which he seems to have had a sick child. While she was talking to her uncle, defendant came along the same way, passed her and continued in the direction in which she was going, walking ahead of her. After leaving her uncle, and after going some twenty or thirty steps, she says that she was seized by the defendant, who said to her, “I have got you now,” and pulled and dragged her on up the road a distance of some 270- yards, to a field which he entered (still pulling her along with him) by opening a large gate, and after going a short distance into the field where there seems to have been weeds and brush grown up, he threw her down and had sexual intercourse with her at least twice — perhaps five times — though the number of 'these acts does not clearly appear from her testimony. The acts of alleged rape occurred some 350' or 400 yards from the picnic ground between one and two o’clock in the afternoon. While being pulled or dragged from the point mentioned, by defendant, she made no outcry and resisted only, as she says, by pulling back. In the act of copulation it became necessary to remove her drawers, which she says was done, and that after the acts were accomplished she put her drawers on and returned to the picnic grounds. Her testimony is to the effect that she resisted to her full strength and wept during the performance of the acts complained of; but the question of her resistance and the fact of her weeping are not corroborated, and rest upon her testimony alone. Upon her return to the picnic ground's, after the alleged rape, she went to her acquaintance, Mrs. Deacon, and told the latter that defendant had thrown her down. At this time, as Mrs. Deacon testifies, there was dirt npon her clothing and a blood spot npon her left shoulder. She was not weeping then, nor does Mrs. Deacon say she appeared to have been weeping shortly previous, though this witness says her face was flushed. In her conversation with Mrs. Deacon she denied, or at least did not specifically state, that sexual intercourse had been consummated upon her person, but simply said that defendant “didn’t do anything, but he tried to. ’ ’ Being advised by Mrs. Deacon to tell her father what had occurred, prosecutrix sought him out and did so. "When she told her father about it she seems to have been crying. At the time of her conversation with Mrs. Deacon and also at the time'of her talk with her father, her clothing was noticeably soiled and disarranged. At the time of the alleged rape prosecutrix says she was unwell. At the time of the occurrence of the act charged, prosecutrix was almost fifteen years of age, or fourteen years and ten months old, lacking three days.

After prosecutrix’s father was advised by her of the alleged acts of defendant, he went to defendant and asked him about what had occurred. Defendant denied knowing anything about it, or of having anything to do with prosecutrix.

During the examination of prosecutrix’s father upon the trial he was asked this question: “Make a statement to the jury as to what she was doing and what she said to you at that time?” (That is, at the time following prosecutrix’s conversation with Mrs. Deacon and when she was telling her father of the alleged acts of the defendant). Objected to by the defendant as hearsay; which objection was by the court overruled, to which mling of the court the defendant excepted at the time. Thereupon the father of prosecutrix proceeded to detail not only what the latter had said to him, but what Mrs. Deacon had said to him in a conversation at which defendant was not present, or within hearing. This is urged as error.

There is some testimony in the record as to the condition of the clothing of defendant and to the effect that the shirt which it is'said he wore upon the day in question, but ownership of which is not as definitely shown as it might be, had a spot of blood on that part of it, called by the witnesses “the lower front part of the tail.”

Defendant testifying for himself admits passing along the road following the prosecutrix; admits passing her while she was talking to her uncle Joe Mahan; admits having a conversation with her in the neighborhood of where she says the rape occurred, but denies any sexual intercourse with her or any attempt to have sexual intercourse with her on this occasion. He says that he followed her to the place in question at her own request and suggestion and because she had told him that she had something to tell him, but that she could not tell him at the stand where he was at work, and that he then proposed that they walk up the road together, and that while prosecutrix insisted that that would not do, that someone would tell it, he then asked her to go on and that he would come after her. That she thereupon started, defendant going one way and prosecutrix the other, but that he met her by another stand returning, and that she thereupon said that her uncle was up there. That defendant said to her that he would “set them up,” which he did, and go on back to work, but that prosecutrix still insisted that she had something she desired to tell him; that, he, defendant, then told her to go on, that he didn’t care for her uncle, andi that on the way up to the alleged scene of the trouble he passed her uncle and caught up a short distance beyond with prosecutrix, who asked him to go on up further with her as she didn’t want anyone to see her talking to him, and that not having time to do so, but being compelled to return to his work, lie left her and returned to the stand where he was employed.

On the day following the alleged act prosecutrix went with her father and others to the alleged scene of the rape where the weeds were observed to be trampled down, and whidh looked, as the witnesses say, “like it might have been used,” and where the hat pm of prosecutrix was found.

On the day in question prosecutrix had reached the picMe grounds sometime before her father and mother got there, and it seems she did not know at the time of her conversation with Mrs. Deacon that her parents had reached the ground, and so stated to Mrs. Deacon, who advised her that during her absence up the road her parents had reached the grounds.

The above statement of facts will be sufficient, in the view we take of this case, to comply with the statutory requirements provided in this behalf.

I. Defendant urges that the court erred in overruling Ms motion to quash the information, because of lack of verification either by the oath 0f the prosecuting attorney or by the oath * ° , , iof some person competent to testify as a witness M the case.

The statute as to the verification of informations which was in force at the time of the filing of the one complained of herein, is as follows:

‘ ‘ Sec. 5057. Informations may be filed by the prosecuting attorney as informant during term time, or with the clerk in vacation, of the court having jurisdiction of the offense specified therein. All informations shall be signed by the prosecuting attorney and be verified by his oath or by the oath of some person competent to testify as a witness in the case, or be supported by the affidavit of such person, which shall be filed with the Mformation; the verification by the prosecuting attorney may be upon information and belief. The names of the witnesses for the prosecution must be indorsed on the information, in like manner and subject to the same restrictions as required in case of indictments.”

It is evident from the facts as we have set them forth that neither of the three ways provided by the section above quoted, by which an information may be verified, was used. But it is strenuously insisted by the State that the information herein was properly and sufficiently supported by affidavit, for the reason that there had been theretofore filed with the justice of the peace a complaint, duly verified, by the prosecutrix; that this complaint, as a paper in the case, had been by the justice of the peace lodged with the clerk of the circuit court as a part of the files accompanying the justice’s transcript of his proceedings on the preliminary hearing. The State insists that this fact is a sufficient compliance with the requirements of section 5057, supra, and that it was not necessary that the information be verified by the oath of the prosecuting attorney, or by the oath of some person competent to testify as a witness in the case, or that it be supported by the affidavit of such person filed with the information.

It is not necessary here to go at length into the legal history of the constitutional amendment and of the statutes in aid thereof, by which prosecutions for felonies were permitted to be instituted by informations in lieu of or coordinately with indictments. Suffice it to say that the Constitution was changed in this behalf in November, 1900', andl that amendments to our statutes of criminal procedure in consonance with the change in the organic law, were passed in 1901, at which time section 2478, Revised Statutes 1899, was amended to read as follows:.

“Sec. 5058. When any person has knowledge of the commission of a crime, he may make his affidavit before any person authorized to administer oaths, setting forth the offense and the person or persons charged therewith, and file the same .with the clerk of the court having jurisdiction of the offense, for the use of the prosecuting attorney, or deposit it with the prosecuting attorney furnishing also the names of the witnesses for the prosecution; and it shall be the duty of the prosecuting attorney to file an information, as soon as practicable, upon said affidavit, as directed in the next preceding section. ’

Long prior to the constitutional amendment and the amending of the above section there were in existence statutes providing for the making of complaints in writing before any magistrate, setting forth the fact that a felony had been committed, averring the name of the one charged with the commission thereof, and making it the duty of the magistrate to issue his warrant for the apprehension of the alleged doer of the felony, and providing for the examination of witnesses; and if upon such examination it appears that a felony had been committed, and that there ,was probable cause to believe the prisoner guilty, the magistrate was required' to bind the prisoner over in suitable bond, if the offense be bailable, and if not bailable to commit the prisoner to jail until an indictment could be preferred by a grand jury. In other words, these provisions constituted the legal machinery by which arrests, preliminary examinations, commitments or discharges of persons charged with felonies were handled and disposed of. The complaint in writing was required to be verified.

In the instant case this is precisely what was done. A verified complaint was filed by the prosecutrix with Meade, the justice of the peace; a preliminary hearing was had and the justice deeming that a felony had been committed, and that there was probable cause to believe the defendant guilty thereof, the defendant was bound over to await the action of a grand jury, ior the filing of an information. Nothing was done in the case, nor were any papers filed, or affidavits filed, which were not required in a preliminary examination for many years before the passage of the Act of 1901. [Laws 1901, p. 139.] Por reasons known to the lawmakers, and touching which it is neither our privilege nor our duty to inquire, the Legislature saw fit to amend the statutes so as to read as they now d:o in sections 5057 and 505-8-, supra.

As stated, three methods of verification were provided for by section.5057, supra: (1) The information might be verified by the oath of the prosecuting attorney; (2) such information might be verified by the oath of some person competent to testify as a witness in the' case by appending to, o,r indorsing on, the information such oath; or. (3) it might be supported by the affidavit of some person competent to testify in the case, which affidavit might be contained on some separate and extraneous paper, but which must be filed .with the information. By a reference to section 5058, supra, it will'be seen that the affidavit required by subdivision three noted above, could be made before any person authorized to administer oaths, and the same could be filed with the clerk of the court having jurisdiction of the offense, or it might be deposited with the prosecuting attorney to be filed by him, with the information, when he should thereafter file such information. We. are not holding that when such affidavit was filed by the competent witness provided for in section 5057, supra, it was necessary to file the same with the clerk at the moment of filing the information. But all that is required is that such supporting affidavit when filed with the clerk of the court having jurisdiction of the offense may be filed with such clerk at any time prior to the filing of the information, and that so far as this affidavit is concerned, if the same be filed at or before the filing of the information by the prosecuting attorney, this is a sufficient compliance with the law. [State v. Coleman, 186 Mo. l. c. 166.] But none of the several methods above pointed out as being sufficient was adopted or used in the case at bar. Here there was no verification of the information, either by the prosecuting attorney, or by any witness competent to testify in the case by appending to, or indorsing on, the paper containing the information either of snch required affidavits; nor was there filed with the clerk of the court having jurisdiction of the offense', at any time at or before the filing of the .information, any affidavit contained on a separate paper and made by any witness competent to testify in the case. All that was filed (or re-filed, if we may use the expression), in this case, was the verified complaint which had theretofore been made and filed with the justice of the peace who held the pre^ liminary examination, and which complaint was made, filed and verified for a purpose wholly different from that meant by sections 5057 and 5058, supra. It may be technical, but it is true, that these affidavits perform wholly,different offices. One of them was in use and required many years before the other was broug'ht into existence by the statutory enactment. The verified complaint when it was filed with the justice of the peace and a warrant was issued and a preliminary held, had then served its statutory purpose, and became functus officio.

In order to agree in this case with the contentions of the State we are required to hold that the verified complaint filed by the prosecuting witness with the justice of the peace could serve both as a verification for the complaint and as a verification for the information. Since the charge in this case involved as. a maximum punishment the assessment by the jury, if they saw fit, of the punishment at death, it was necessary under the statute to allow a preliminary hearing to defendant. It was entirely within the discretion of the prosecuting attorney to proceed for a lower cognate offense, or if he were so advised upon an examination of the testimony, not to proceed at all. Suppose that upon an examination of the testimony the prosecuting attorney had seen fit to file an information against defendant here for an assault with intent to rape; or for criminal knowledge of a woman between fourteen and eighteen years— either of which he might have done, if he had been so advised? Could it be said then that the verified complaint would have been a sufficient basis upon which to bottom the information, or that it would have been a sufficient compliance with the reasonably plain provisions of sections 5057 or 5058, supra? We think not, and so hold with reluctance, being impelled to this view by the plain statutory requirements which the Legislature has seen fit to enact governing the procedure in such cases. We might say in passing that it would have been a very easy thing to have amended the information in this case pending the motion to quash the same, and thus have avoided the condition which exists here.

II. The conclusions which we have reached above must result in a reversal of this case, but as the same may be retried upon this or some other cognate charge, it may be well to say that in olir view the admission, over objections of defendant, of the testimony of Jesse Benson, as to the details of the alleged rape committed upon prosecutrix by defendant, constitutes error. That this is so, we take it is now and has long been the well-settled law in this State. [State v. Bateman, 198 Mo. l. c. 221; State v. Jones, 61 Mo. 232; 3 Russell on Crimes, 232; 23 Am. & Eng. Ency. Law (2 Ed.), 874.] 'There are, we concede, some exceptions to this general rule, as for example, where a defendant testifies to the fact of criminal connection with the prosecuting witness, and sometimes where the court withdrew the "hurtful testimony from the consideration of the jury; but none of the exceptions known to us is present in the case at bar. Upon a retrial of this case, if such retrial shall be had, the prosecuting attorney should not "be permitted to elicit from any witness the details of the .alleged rape as related by her to such other witness, unless upon the exceptions hereafter set out. The fact •of making prompt complaint as an element of corroboration is admissible always. The promptness of such complaint to fulfill the legal requirements will depend of course upon the age of the prosecutrix, and upon-the facts and circumstances of the case. The rule, as well as some of the exceptions thereto, is well-stated in State v. Bateman, supra, where it is said: ‘ ‘ The authorities are uniform in holding that in prosecutions for rape, the particular facts of the crime as related by the prosecutrix at the time of or after making complaint of the injury are not admissible in evidence, except when drawn out from the complainant by cross-examination, or introduced as confirmatory of her testimony, after testimony has been introduced tending to impeach her.” Nothing of this sort occurred in the trial of this case, and this error should be avoided upon a retrial herein, if one shall be had.

III. It is strenuously contended by defendant that the testimony in this case as shown by the record, is not sufficient to make out the crime charged. Upon the cold record, and at this distance from the locus in quo, this contention seems to us to have much weight. The triers of fact might well have found that the statements of the prosecuting witness as to the consummation by defendant of sexual intercourse with her was proven, defendant’s strenuous denial thereof notwithstanding. But the serious question is: Was this intercourse rape? Considering the circumstances as they exist; the nearness of many persons to the scene of the alleged rape; the proximity of prosecutrix’s uncle to the place at which prosecutrix says she was seized by the defendant; the fact that after such seizure she was pulled and forced unwillingly to go a distance of some 270 yards to the scene of the alleged rape; that the place was in a measure a public one; that the time was in broad daylight; and that neither while being dragged, or pulled, or forced unwillingly to go, from a point, at most, hut thirty yards from her uncle, nor while traversing such distance of 270 yards she either screamed or made outcry, though legions were near — all these things tend very strongly to convince the mind that there was at least such passive consent as to take this case from out of the category of rape. There may he some other offense of which, under'the facts, defendant was guilty, hut we are not convinced that upon the record here, and upon the testimony adduced, he ought to have been convicted on this charge.

It follows from what has been said that this case should he reversed and remanded for a new trial, if the State is so advisedand it is so ordered.

Brown, P. J., and Walker, J., concur.


author: WALKER, J.

text:
    THE STATE v. A. S. SILLBAUGH, Appellant.
    Division Two,
    May 20, 1913.
    1. INFORMATION: Amendment. It was not erroneous for tbe court to permit tbe prosecuting attorney, upon request and before tbe trial, to amend the information by inserting tbe word “feloniously.”
    2. INSTRUCTION: Reasonable Doubt. An instruction telling tbe jury that “before you can convict tbe defendant you must find him guilty beyond a reasonable doubt. If you have a doubt as to defendant’s guilt you should acquit him, but a doubt to authorize an acquittal should be a substantial doubt based on tbe evidence, and not a mere possibility of bis innocence,” in clear and unmistakable terms announces tbe correct doctrine of reasonable doubt.
    3. -: Shooting Hogs: Malice Towards Owner or Animal. In a prosecution for shooting bogs which had gotten into defendant’s cornfield, an instruction which tells the jury that “it is not necessary to prove that defendant bad malice against the owner or the animal, but if tbe act was wrongfully, intentionally and wilfully done it may be inferred that it was done maliciously,” correctly declares the law as to the inference of malice in such a ease, and is fair and full where there has been given another instruction setting forth all the essential elements of the offense and stating that the finding of the element of malice was one of the requisites to a verdict of guilty.

      4. -: -: Trespassing: Right to Shoot. The mere fact that domestic animals are trespassing on defendant’s lands and crops gives him no right to shoot or injure them. That is the law even when defendant has such a fence as the law requires.
    5. -:-:-:-: Undue Favor to Defendant. In a prosecution of a defendant for shooting hogs which were trespassing on his cornfield, an instruction telling the jury that “if you find from the evidence that the defendant shot the hogs in question to protect his crops, and it was necessary to do so to protect his crops, and said act was done without maiice to the animal or owner, then you should acquit defendant,” announced a false-and pernicious doctrine; hut it does not constitute reversible error, for the reason defendant was not injured thereby.
    Appeal from Douglas Circuit Court. — Hon. John T. Moore, Judge.
    Affirmed.

      A; H. Buchanan for appellant.
    The alleged offense in this case is a felony, and all felonies must be charged to have been feloniously done. In this case the word “feloniously” nowhere appeared in the information till the prosecuting attorney was permitted to insert the word “feloniously, ’ ’ and that after the jury were impaneled. Defendant’s motion in arrest should have been sustained. State v. Murdock, 9 Mo. 739; State v. Gilbert, 24 Mo. 380; State V. Deffenbacher, 51 Mo. 26; State v. Mc-Grath, 228 Mo. 413; State v. Buchfelder, 231 Mo. 55. Until this information was amended there was no crime charged against the defendant, and the State is not permitted to wait until the jury is impaneled and then for the first time present a legal charge against Mm. Up to the time this amendment was made defendant had no notice of any legal charge against him. TMs amendment is not a matter of form, but one of substance, and is the very essence of the charge, and it comes too late. R. S. 1909, sec. 5061; Constitution of Missouri, art. 2, sec. 22; State v. Coleman, 186 Mo. 151; Pozzini v. State, 126 Pac. (Oida.) 1040. The court misapplied the law and facts in this case. In instruction 5 the court singled out the question of malice and made special comment on the feeling of defendant toward the owner of the property and the animal, and particularly called their attention to the fact that it was not necessary for defendant to have malice toward either the owner or animal, and while that is true as an abstract rule of law, it is not for the court» to direct the attention of the jury to that matter, specially. R. S. 1909, sec. 5244; State v. Grugin, 147 Mo. 39. But the court committed the most fatal error going to the merits of the case in giving instruction 9. The question of malice and criminal intent, which is the foundation of this class of cases, was ignored. In instruction 9 the right of defendant was limited to the narrow ground of necessity. Is a man to be adjudged a criminal if, perchance, he should wound stock, excluding them from his premises, for the mere reason it had not become a matter of absolute necessity? No guide is given the jury as to what constituted such necessity. The element of malice and criminal intent is lost sight of. Malice is the very bottom of tMs charge, and no felony can be committed without a criminal intent. 1 Bishop’s New Criminal Law, s'ecs. 206, 287; State v. Fritchler, 54 Mo. 424; State v. Cunningham, 154 Mo. 161.

      John T. Barker, Attorney-General, and Stephen \K. Qwen for the State.
    (1) The court when requested properly gave permission to the prosecuting attorney to insert the word “feloniously” in the information before the trial. State v. Darling, 216 Mó. 450; State v. Emerson, 188 Mo. 412; State v. Dargatz, 244 Mo. 218. (2) The instructions given cover every issue in the case and were as favorable to the defendant as he could ask under the evidence.
   WALKER, J.

Defendant was charged in an information filed by the prosecuting attorney of Douglas county with maliciously shooting and wounding hogs as denounced in section 4627, Revised Statutes 1909. Before the trial, the prosecuting attorney was permitted to amend the information by the insertion therein of the.word “feloniously.” The defendant was tried before a jury, found guilty and his punishment assessed at a fine of fifty dollars. After the necessary formal procedure, he appeals to this court.

Briefly, the facts are that certain hogs belonging to the prosecuting witness, named Walker, a neighbor of defendant’s, had been getting into the latter’s cornfield for several months and destroying his corn. The prosecuting witness and his wife heard shots fired in defendant’s field in November, 1911, and went to the field and asked defendant if he had seen the hogs and he said he had not. A search resulted in the finding of two of the hogs in a shock of the defendant’s corn, wounded and bleeding. Defendant on the witness stand testified that two bunches of Walker’s hogs had been getting into defendant’s field at different times, and although Walker had been at defendant’s house frequently hunting the hogs, he had not offered to help him get them up; that when defendant shot the hogs in November, 1911, it was for the purpose of scaring them and running them out of the field. Defendant says he did not know that the two wounded hogs were in the corn shock when Walker and his wife came to the field immediately after the shots were fired.* In reply to an inquiry made by his counsel as to why he did not tell Walker and Ms wife where the hogs were when they came to the field, he said: “Well, they had given me so much trouble, I thought they would give me more trouble.”

Defendant was permitted to testify fully in regard to every phase of the case, even to state his reasons for the commission of the offense.

There was much testimony as to the condition of' defendant’s fence around the cornfield, not necessary to be detailed, because of its irrelevancy.

The court instructed the jury on the presumption arising from proof of good character; as to what constitutes reasonable doubt; the weight and credit to be given to defendant’s testimony; what the jury-must find to authorize a conviction; that malice may be inferred if the act was shown to have been -wrongfully and intentionally committed; what is meant by “malice;” that if the shooting was done without malice to the animal or owner, then you should acquit the defendant, and defining “wilfully.”

Defendant assigns as error the amendment of the information and the giving and refusing of certain instructions.

I. Defendant contends that error was committed in permitting the prosecuting attorney, before the trial, to amend the information by the insertion therein of the word “feloniously.” ... ^ ^ The statute (Sec. 5061, R. S. 1909) provides that ‘ ‘ any affidavit or information may be amended in matter of form or substance at any time by leave of court before the trial, and on the trial as to all matters of form and variance, at the discretion of the court, when the same can be done without prejudice to the substantial rights of the defendant, on the merits,” etc.

At common law the officer of the Crown could elect to file an entirely new information or, by leave of the court, amend the information already filed, by interlineation or erasure. This court has held that an “information,” as used in our Constitution, means the common law information. [State v. Kyle, 166 Mo. 287.] The provisions of the statute, therefore, are but declaratory of the common law and are ample to permit the amendment complained of,, when as shown by the record, it was made by leave of the court and before the trial.

This conclusion is supported by State v. Vinso,171 Mo. 576, and State v. Pyscher, 179 Mo. 140, in which the amendment of informations is elaborately and learnedly discussed.

II. The correctness of the second instruction given by the court is challenged. It is in these words:

“Before you can convict the defendant you must find him guilty beyond a reasonable doubt. If you have a doubt as to defendant’s guilt you should acquit him, but a doubt to authorize an acquittal should be a. substantial doubt based on the evidence and not a mere possibility of his innocence.”

This instruction in clear and unmistakable terms announces the correct doctrine in regard to a reasonable doubt; it has the support of many precedents. [State v. Nerzinger, 220 Mo. 36; State v. Bateman, 198 Mo. 212; State v. Maupin, 196 Mo. 164.]

Complaint is made of the fifth instruction given by the court. It is as follows:

“It is not necessary in the trial of a case of this kind that the State prove that the defendant had malice against the owner of the property or against the animal, but if the act was wrongfully, intentionally and wilfully done it may be inferred that it was done maliciously.”

This instruction correctly declares the law (Sec. 4629, R. S. 1909), as to the inference of malice in cases of the character of the one at bar; it should rea(j anc[ interpreted in connection with instruction number four, given by the court, which defined all of the essential facts necessary to constitute the offense charged, and told the jury that the finding of the element of malice was one of the requisites to a verdict of guilty and instruction number five was simply explanatory thereof; in addition, the court in another instruction properly defined malice. In view of these declarations of the law the jury could not have been misled and defendant’s contention is devoid of merit.

Instruction numbered nine, which defendant assigns as error, is as follows:

“If you find from the evidence that the defendant shot the hogs in question to protect his crops, and it was necessary to do so to protect said crops, and said act was done without malice to the animal or owner, then you shall acquit the defendant. ’ ’

This instruction is in conflict with the other instructions and announces a false and pernicious doctrine. The mere fact that domestic animais are trespassing gives no right to the owner of land or crops to injure or destroy them; this is true although the land-owner has such a fence as the law'requires (State v. Prater, 130 Mo. App. 348; 2 Cyc. 433), which was not the fact'in the case at bar. The Supreme Court of Illinois in construing a statute in substantially the same language as that of this State, says: “It is a violation of the common law, as well as of this statute, for a person to shoot or wound stock found trespassing upon his premises. He may expel them from his premises, and use the necessary force for that purpose, doing them no unnecessary damage; or he may take them up damage-feasant, if need be, to protect his crops or close.” [Snap and Francis v. People, 19 Ill. 80, 68 Am. Dec. 582.] While the animus and intention of the act may he shown to establish innocence (State v. Graham, 46 Mo. 490), it has never been held by our courts that, when it has been shown that the animal was injured or killed while trespassing, whether in the destruction of crops or otherwise, in the absence of malice against the owner or the animal the accused should be acquitted. The instruction, however, does not constitute reversible error, for the sufficient reason that the defendant was not thereby injured. A favorable instruction not tending to the injury of the one toward whom it leans, cannot be objected to by him. Since the law gives no redress for a wrong not resulting in injury, one who has suffered nothing from the omission of an instruction or the giving of an incorrect one will not be heard to complain. This, in substance is the lucid language of Bishop in the discussion of this subject. [2 Bishop, N. Cr. Proc. (Underhill’s 2 Ed., 1913) sec. 980, par. 7, p. 823, and sec. 980-b, p. 828.] A like doctrine is announced in State v. Terry, 106 Mo. l. c. 216.

The instructions given by the court properly declared the law upon every essential fact in evidence necessary to enable the jury to render an intelligent verdict and the instructions asked by the defendant were, therefore, properly refused.

Finding no prejudicial error, the judgment of the trial court should be affirmed, and it is so ordered.

Brown, P. J., concurs; Faris, J., concurs in result only.