text:
    THE STATE v. WILLIAM YOUNG, Appellant.
    Division Two,
    February 15, 1916.
    1. FALSE PRETENSE: Information. An information which plainly alleges (1) what the pretenses were, (2) to whom they were made, (3) that he to whom they were made relied upon them and, acting upon such reliance, was induced to and did part with his property, (4) that by means of such pretenses said property was obtained, (5) that the property so obtained was owned by the person named, (6) that its value was a named sum, (7) that said pretenses were made by defendant designedly and feloniously with intent to cheat and defraud, and (8) that said pretenses were false, and that defendant knew they were false when he made them, states the component elements of the offense denounced by Sec. 4565, R. S. 1909, as amended by Laws 1911, and is sufficient.

      2. -: -: Misjoinder of Offenses: Different Statutes: Tests: Bar. The legal test of permitted joinder of offenses is not whether the offenses charged in different counts of a single information as having been committed in different ways are, or are not, defined and denounced by different sections of the criminal code, but whether such offenses arose out of the same transaction, and are so far cognate that an acquittal or a conviction of the one would be a bar to a -trial for the other.
    3. --: Instruction: Under Abandoned Count. An instruction in a prosecution for obtaining property by false pretense may be good under Sec. 4765, R. S. 1909 (as amended in 1913), but not good under Sec. 4565, R. S. 1909 (as amended in 1911); and if the information contains two counts, one charging a crime under section 4565, and the other, a crime under section 4765, and the later count is abandoned, an instruction bottomed on section 4765 and possibly good when tested by it, is bad if it does not meet the requirements of section 4565.
    4. -: -: Deception. Instructions, in a prosecution for the false pretense denounced by Sec. 4565, R. S. 1909 (as amended in 1911), must require that the person alleged to have . been defrauded was deceived by the false pretenses made by defendant; and if they do not contain such a requirement, a conviction under that statute cannot stand.
    5. -: Deception: Knowledge of Falsity. If the person alleged to have been defrauded knew at the time that defendant’s pretenses were false, no crime was committed under section 4565, Revised Statutes 1909.
    6. -: Promise to Pay: Bank Check. If at the time defendant offered his check on a certain bank in payment for the mules, the seller was informed that defendant had no funds in that bank, but defendant promised that by the time the check reached the bank the money to pay it would be there, and the check was accepted under such circumstances, no conviction under section 4565 can stand; for the effect of an agreement to have the money in the bank to the pay the cheek on a future day, was to make of the alleged pretense but a mere promise, and so remove it from the category of crimes.
    7. -: -: Made jn Good Faith. Nor need the promise to pay at a future date be made in good faith; for the moment the alleged false pretenses are shown to be naked future promises, the prosecution under section 4565 inevitably and instantly fails.
    8. -: Evidence of Similar Acts: Instruction: Intent. Where the information charges the false pretense to be that defendant gave in payment for mules a check on a bank in which he had no funds, it is proper to permit the State to prove that other checks drawn on the same bank, shortly before or shortly after the offense charged, were, to defendant’s knowledge, refused payment for lack of funds, but in such case the jury should be instructed that proof of such other recent and similar crimes is admitted for the sole purpose of showing the intent of defendant in giving the check complained of.
    Appeal from Callaway Circuit Court. — Hon. David H. Harris, Judge.
    Reversed and remanded.

      J. B. Baker for appellant.

      John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
    (1) The first count of the amended information upon which the prosecuting attorney elected to try-the defendant, properly charges the offense of obtaining money under false pretenses. State v. Shout, 263 Mo. 360; State v. Roberts, 201 Mo. 710; State v. Lovan, 245 Mo. 524; State v. Martin, 226 Mo. 547; State v. Donaldson, 243 Mo. 465; State v. Foley, 247 Mo. 607; See. 4565, R. S. 1909. (2) In a prosecution for obtaining money under false pretenses, evidence of similar transactions, whether prior to or subsequent to the one under review, is admissible as tending to prove a common intent of the defendant to cheat and defraud. State v. Roberts, 210 Mo. 726; State v. Wilkins, 221 Mo. 444; State v. Shout, 261 Mo. 360.
   FARIS, P. J.

The defendant was convicted in the circuit court of Callaway County for violating the provisions of section 4565, Revised Statutes 1909, as amended by the Laws of 1911. [Laws 1911, p. 194.] His punishment was fixed by the verdict of a jury at imprisonment in the penitentiary for a term of two years. From a sentence in accordance with the verdict, after the conventional motions, he has appealed.

The information is in two counts. The first count is bottomed as stated above, upon section 4565, and, caption and formal parts omitted, reads thus:

“N. T. Cave, Prosecuting Attorney within and for the body -of the county of Callaway and State of Missouri, under bis official oath and according to his best information, knowledge and belief, informs the court that one William Young, on the 16th day of April, 1914, at Callaway county, Missouri,' feloniously, designedly and wilfully, with intent to cheat and defraud one I. L. Edwards, did falsely pretend to the said I. <L. Edwards that he, William Young, had lawful money of the United States deposited to his credit in the ‘Bank of Chamois,’ a banking corporation duly corporated’, organized and operating as such under the laws of the State of Missouri, and that said money was subject to be checked out of said bank, and that he had sufficient money deposited in said bank to purchase and pay for two mules of the value and purchase price of four hundred and seventy-five dollars, and the said William Young further falsely pretended and represented to the said I. L. Edwards that he, William Young, was the owner and operator of the largest general merchandise store in the town of Chamois, Missouri, and the said I. L. Edwards, believing the said false pretense, made as aforesaid, to be true, and being deceived thereby, was by reason thereof induced to and did then and there sell and deliver to the said William Young, two mules, the personal property of I. L. Edwards, for the 'purchase price of four hundred and seventy-five dollars, and the said William Young gave the said I. L. Edwards his, William Young’s, personal check for the above amount drawn on the ‘Bank of Chamois,’ in payment for said mules and the said I. L. Edwards relying upon the statements so made by the said William Young, and believing them and each of them to be true, then and there accepted said check in payment of the purchase price of said mules and delivered the said mules to the said William Young, and thé said I., L. Edwards presented the said check for payment at the ‘Bank of Chamois,’ Missouri, and the payment was refused because the said William Young had no funds in said bank, and the said William Young, by means of the said false pretenses so made to the said I. L. Edwards as aforesaid, unlawfully and designedly and feloniously did obtain of and from the said I. L. Edwards the possession of the said two mules of the value of four hundred and seventy-five dollars of the moneys and property of the said I. L. Edwards with intent, him, the said I. L. Edwards, then and there to cheat and defraud of the same; Whereas in truth and in fact the said William Young did not have any money in the ‘Bank of Chamois,’ as he well knew and did not own a large general merchandise store in the town of Chamois, Missouri, as he well knew; against the form of the statutes in such cases made and provided and against the peace and dignity of the State.”

The second.count is bottomed on section 4765, as amended by the Laws of 1913, [Laws 1913, p. 222.] Since the point is made that this joinder was improper, it may be stated that a motion to quash for alleged misjoinder was filed and overruled.- Thereafter a motion to require the State to elect upon which count it would go to jury was filed. This motion seems to have been overruled, but at the close of all the evidence the State elected to go to the jury on the first count, which is set out above, and thereupon dismissed as to the second count. Therefore with the alleged misjoinder, barring the technical phase of vulnerability upon the motion to quash, we need no longer trouble ourselves.

Such of the evidentiary facts as were developed by the evidence runs briefly thus: Defendant appeared at the farm of one -I. L. Edwards in Callaway County on the 16th day of April, 1914, and representing himself as the owner of the largest mercantile establishment in the town of Chamois and as snch owner to be in need of and desirous of buying two mules for the purpose of hauling freight in and around the town of Chamois and for the purpose of advertising his business by the use of a pair of finely matched mules, agreed with said Edwards to buy the mules in question for the sum of $475. At the conclusion of the trade defendant asked Edwards for a blank check, and requested Edwards, on being furnished therewith, to fill out the same on the Bank of Chamois. Defendant signed the check and then inquired of Edwards when this check would get to the bank; whereupon Edwards inquired of him why he desired to know this and asked defendant whether or not he had the money there to pay the check. Defendant replied that he always had enough, money there to pay $475, but that he had another deal in mind, and thereupon put his hand in his pocket and orally offered to show Edwards a draft for $1500, which, however, Edwards did not insist upon seeing. The proof shows that Edwards relied upon the statements of defendant in both of the behalves mentioned and thereupon accepted the check and delivered the mules to defendant. But as defendant desired Edwards to send the mules to Jefferson City, the latter paid a liveryman two dollars to take them to the Callaway County end of the bridge which spans the river at Jefferson City and turned them over to defendant. ' .

The check given to Edwards for the mules was not paid when presented, for the reason that defendant had no money in the Bank of Chamois and had not had any therein for two months or more prior to the date at which the check was given, having, as the proof shows, closed his account in the Bank of Chamois on February 12, 1914. The evidence further discloses that defendant not only did not own the biggest mercantile business in Chamois, but at the date of obtaining the mules from Edwards had no store there at all. The proof shows that he had had, some few months prior, a small store in which he had a stock of secondhand clothing, but the proof is that he had closed this out some weeks before making the deal with Edwards. On this latter point in fairness, it may be said in passing, there was countervailing testimony, and the truth of it rests somewhat in the dark.

Defendant brought the mules to Jefferson City and upon reaching there began to make efforts to sell them, finally finding, in one Clem Ware, a purchaser for them on the day following the deal with Edwards at the price of $325.

The defense was (1) a denial of the alleged pretense as to the stupendous character of defendant’s store at Chamois, and (2) that defendant informed Edwards at the time of giving him the check in question that he did not at that time have money enough in the Bank of Chamois to cover the check, hut that he would have a sufficient sum therein to take care of the check by the time it reached the bank for payment. For this reason he says, he made inquiry of Edwards as to the time at which, in due course, this check would reach the Bank of Chamois for collection. This conversation is denied by Edwards. The question of the truth of this statement and whether defendant on the said 16th day of April, 1914, had any sort of mercantile business in the town of Chamois, form practically the only contested issues in this case. Touching other points required to be shown, there was either no contradiction or the truth thereof was conceded.

Upon the trial of the case the court gave, among others, instruction numbered one, the goodness of which is seriously questioned upon this record. This instruction is as follows:

4 41. The court instructs the jury that if you find and believe from the evidence beyond a reasonable doubt that defendant William Young on or about the 16th day of April, 1911, at the county of Callaway and State of Missouri, wilfully and feloniously and with intent to cheat and defraud, did obtain from one I. L. Edwards two mules of the value of four hundred and seventy-five dollars, or of any other value, then and there being the personal property of the said I. L. Edwards, by means of a check drama, with intent to cheat and defraud him, the said I. L. Edwards, upon the Bank of Chamois, a bank in which he, the said William Young knew he had no funds, then you must find the defendant guilty as charged in the first count of the information and assess his punishment at imprisonment in the State penitentiary for such term as you deem proper, not to exceed seven years nor less than two years.”

Such other facts as may be necessary to make clear what we shall say will be set out in the opinion.

OPINION,

We have not been furnished a brief on the part of the defendant and that filed by the State is perfunctory and regrettably does not discuss all of the questions which we find mooted and deem troublesome. We are left, therefore, to perform our statute-enjoined duty of examining the record for error without material assistance from any source.

It is contended that the information herein is bad. We set out in our statement the first count, being that on which defeaadant was convicted, ^gplce the second count was dismissed and the State elected not to go to the juay thereon, we need in nowise concern ourselves with either its sufficiency or insufficiency.) After a careful examination and analysis of this information we are impelled to disallow this contention and rule that the informatioaa is good. It plaiaaly and succinctly avers and sets forth: (a) what the pretenses were (State v. Porter, 75 Mo. 171; State v. Miller, 212 Mo. 73); (b) to whom such pretenses were made (State v. Fraker, 148 Mo. 143); (c) that he, to whom the said pretenses were made, relied upon them, and acting upon such reliance was induced to and did part with his property (State v. Vorback, 66 Mo. 168; State v. Donaldson, 243 Mo. 460; State y. Feazell, 132 Mo. 176; State v. Dines, 206 Mo. 649; State v. Hubbard, 170 Mo. 346 ; State v. Kelly, 170 Mo. 151); (d) that by means of such pretenses said property was obtained (State, v. Miller, 212 Mo. l. c. 79); (e) that the property so obtained was ownéd by I. L. Edwards; (f) that its value was $475 (Sec. 4565, R. S. 1909, as amended by Laws 1911, p. 194); (g) that said pretenses were made designedly and feloniously with intent to cheat and defraud (State v. Pickett, 174 Mo. 663; State v. Martin, 226 Mo. 538); (h) that the pretenses so made were false (State v. DeLay, 93 Mo. 98; State v. Peacock, 31 Mo. 413); and (i) that defendant knew when he made them that such pretenses were false and untrue (State v. Janson, 80 Mo. 97; State v. Foley, 247 Mo. 607; State v. Shout, 263 Mo. 360; State v. Donaldson, 243 Mo. 460; State v. Roberts, 201 Mo. 702). This is all that is required so far as concerns the component elements of the offense as denounced by section 4565 of our present statutes (State v. Foley, supra; State v. Shout, supra), as amended by the Laws of. 1911.

It is also contended by the motion to quash that there wás an unwarranted joinder of counts in a single information, in this, to-wit, that the first count charges an offense forbidden by section 4565, Revised Statutes 1909 (amended, Laws 1911, p. 194), while the second count charges an offense under section 4765, Revised Statutes 1909 (amended, Laws 1913, p. 222). The legal test of permitted joinder is not whether the offenses charged in different counts of a single information as having been committed in different ways are, or are not, defined and denounced by different sections of the criminal code. The test is: Whether such offenses arose out of the same transaction, and áre so far cognate as that an acquittal or a conviction of one would be a bar to a trial for the other. [State v. Christian, 253 Mo. l. c. 394; State v. Daubert, 42 Mo. 242.] Guided by this test a casual examination of the two counts in the light of the proven facts in the case at bar shows that this point has no merit in it; especially in view of the fact that an election to go to the jury only upon one count was actually had herein. This is so, for the reason that the second count was bottomed solely upon the alleged act of defendant in drawing and giving to said Edwards the identical check upon the Bank of Chamois, which is mentioned and described in the first count of the information.

It is urged in the motion for a new trial that instructions one and two are bad. We disallow the contention as to instruction two, . 7 but as to instruction one it must be sustained. This instruction is clearly drawn under the second, or dismissed count of the information, that, to-wit, which is bottomed upon section 4765 of our statutes as amended in 1913. [Laws 1913, p. 222.] Said instruction would, we apprehend, be good if this prosecution were under the latter section ; but it is bad under the specific charge here. -

The vice of this instruction is (the prosecution being bottomed on section 4565) that it does not require the jury to find that Edwards was in fact deceived by the false pretenses made by defendant. [State v. Keyes, 196 Mo. l. c. 145.] Neither did any other instruction in the case require such finding, although the law is fairly well settled that the information must charge and well settled that the proof must show (State v. Dines, 206 Mo. 649; State v. Evers, 49 Mo. 542; State v. Bohle, 182 Mo. l. c. 65) that he who is said to be deceived was in fact deceived, that is, that he did not part with his property with his eyes open, knowing in fact that the defendant was not a merchant in Chamois and knowing in fact that defendant had no money in the Bank of Chamois. [State v. Bohle, 182 Mo. 58.] If Edwards knew at the time the falsity of defendant’s pretenses there is no crime committed under section 4565 (State v. Bohle, supra), whatever might, in such case, be the. effect of defendant’s acts coupled with Edward’s knowledge, if he were prosecuted under section 4765. The omission to require the jury to find that Edwards relied on, and was deceived by, the false pretenses of defendant was peculiarly hurtful here; because the sole defense urged upon this phase of alleged false representation (and the other phase is not even referred to in the instructions), was that defendant gave the check to Edwards knowing, and so informing Edwards, that he had no funds in the Bank of Chamois, but upon the promise to Edwards .that the money would be in said bank by the time the check reached there for payment. If these facts so urged in his defense by defendant had been true, it is obvious that no conviction could stand under said section 4565; for the effect of such an agreement to have the money in the bank to pay the check on a future day would be to make of the alleged pretense but a mere promise, and so remove it from the category of crimes. [Kelley’s Crim. Law & Proc. 693.]

It is true that at the request of defendant an instruction was given (seemingly written by defendant’s learned counsel) which deals specifically with this phase of the defense, This instruction read as follows:

“The court instructs the jury that if you believe from the evidence that at the time the check mentioned in evidence was given, the defendant told the prosecuting witness, Edwards, that the money was not then in the bank on which the check was drawn, but that it would be there by the time the check arrived and that such promise was made in good faith, then you will find the defendant not guilty.”

If the latter instruction had been good, it might have cured the evil in instruction one here under discussion. But the instruction last above set forth was bad in this case, for that it contained the words italicised by us. In a prosecution under section 4565 for obtaining money, goods, chattels, property or credit by false pretenses, the moment such alleged false pretenses are shown to be naked future promises, the prosecution inevitably and instantly fails. [State v. Evers, 49 Mo. 542; State v. Vorback, 66 Mo. 168; State v. DeLay, 93 Mo. 98; State v. Petty, 119 Mo. 425; State v. Krouse, 171 Mo. App. 424.] So, it could make no difference here whether the defendant was or was not exercising good faith in making the promise he contends he made to Edwards. If he made this check under the circumstances he says he did, he cannot be guilty of obtaining mules under false pretenses, for either one or both reasons forecast above: (1) Edwards was not deceived (on this, the- only phase of false pretenses on which the case went to jury), and (2) the alleged false pretense was but a promise by defendant of a thing to be done by him in the future.

We have carefully examined other matters complained of by defendant, but find all such to fall into either the'-Category of things which are not harmful, or such as will not necessarily happen again upon the next trial. In passing, we may say that it was proper, as showing the intent of defendant, to allow; proof by the State of other .checks drawn by defendant on this same hank, shortly before and shortly after the date of the offense here charged against him, which checks were to defendant’s knowledge refused payment for lack of funds. But in such case the jury should he informed by an appropriate instruction that proof of Such other recent and similar crimes is admitted for the sole purpose of showing the intent of defendant in giving the check herein complained of (State v. Wilson, 223 Mo. 156), and as showing defendant’s knowledge of the condition of his alleged hank account. .

It results that for the error above discussed, this case must he reversed and remanded for a new trial. Let this he done.

All concur.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    SAMUEL M. KENNARD et al., Appellants, v. GOTTLIEB EYERMANN et al.
    Division Two,
    February 15, 1916.
    1. PUBLIC STREET: Park Carriage Drive. A conveyance to a city of a strip of ground fifty feet wide along an established park to he used as a “carriage avenue” of the park “for all such carriages and teams as hy regulations and rules governing the park may be allowed to run in same,” was a dedication ' of the strip for highway purposes; and a further clause in the grant subjecting it to the “immediate government of the park commissioners” means such regulation as may be exercised hy them in the control of a public street, and nothing more; and being dedicated to street purposes, and being accepted and since uniformly regarded by the city as a street, the strip’s status as a street is fixed.
    2. -: -: Evidence of Dedication. The establishment by the city of public improvements on such “carriage avenue,” such as pavements, lights, sewers and 'ivater mains, constitutes evidence of its permanent public character as a street, ws do also the knowledge of and acquiescence in such improvements on the part of the dedicator.

      3. -: -: For Use as Boundary of Benefit District. At any rate, such “carriage avenue’' has been so dedicated as a street as to authorize the city to so consider it in fixing the boundary of a benefit district for special taxation, in pursuance to a charter provision which declared the boundary line of such district should be midway between the street tq be improved and the next parallel street.
    Appeal from St. Louis City Circuit Court.- — Hon. B. D. Fisher, Judge.
    Aefirmed.

      Barclay, Orthwein <& Wallace and Smith .& Pearcy for appellants.
    (1) (a) In a dedication to the public of property by an individual, the law construes the grant strictly as against the public. Spires v. Los Angeles, 150 Cal. 64; Hopkinsville v. Jarrett, 156 Ky. 777, 50 L..R. A. (N. S.) 465; Riverside v. MacLean, 210 111. 308, 66 L. R. A. 288-; Jones v. Jackson, 104 Miss. 449. (b) The public under a dedication acquires only a right to use the property given to it for the purpose specified in the dedication. Cummings v. St. Louis, 90 Mo. 264; Refining Co. v. Elevator Co., 82 Mo. 125; Williams v. Plank Road Co., 21 Mo. 582; Perrenbach v. Turner, 86 Mo. 419; Gaskins v. Williams, 235 Mo. 563; Board of Regents v. Painter, 102 Mo. 471; Goode v. St. Louis, 113 Mo. 257; Jones v. Jackson, 104 Miss. 449; Park Comrs. v. Ward, 248 111. 309; Young v. Landis, 73 N. J. L. 266; Poole v. Rehoboth, 9 Del. Ch. 201. The public has no right to change a specified, limited and defined purpose specified in a grant so as to subject the property to a use for a different purpose.' Mulvey v. ^Wangeheim, 23 Cal. App. 271; Price v. Thompson, 48 Mo. 361; Riverside v. Mac-Lean, 210 111. 308, 66-L. R. A. 288; Seward v. Orange, 59 N. J. L. 33-1; Hopkinsville v. Jarrett, 15-6 Ky. 777, 50 L. R. A. (N. S-.) 467. (2) (a) A pafk and park use have been defined in the following cases: State ex rel. v. Schweikerdt, 109 Mo. 496; Bennett v. Seibert, 10 Ind. App. 369; Ehmen v. Gothenburg, 50 Neb. 715; People ex rel. v. Green, 52 How. Pr. 440. It is a place of amusement, and roadways are necessary therein. Driveways in a public park are common and, like walks and bridle paths, are not only not inconsistent with the use of a park as such, but are a part of the common and ordinary means by which a park is used by the public. In the case of a large park, such as Forest Park, paths and driveways are essential to their satisfactory use. The ordinary use by the public of paths and driveways through a public park is consistent with and incidental to the purpose of a park, and is a park use and not a use as a street or public-, highway. A park road is such a park use. Buffalos Co. v. Hoyer, 214 N. Y. 247. (b) The county of St.. Louis acquired this strip of land from Griswold in 1876 under a grant which was accepted by the county. By the terms thereof the board of control (the commissioners of Forest Park) had control of the strip-, and these two and one-half acres were by the grant incorporated into and became a part of Forest Park. The grantor reserved, however, an easement which attached to the property on the north of the road, giving it access, light and air and outlet and inlet to such property and right of temporary stoppage in front thereof, but such rights.were under the regulations • and rules governing the park, as promulgated by the commissioners of Forest Park. This was the only limit placed upon the use of the strip as a park road by the grantor. Lands may be dedicated for park purposes subject to a private easement of access, light, and air, and such easements are not antagonistic to the rights of the public in such lands for park purposes. Buffalo v. Hoyer, 214 N. Y. 246. A street, is a public highway and is open for unrestricted use-to the public. A street is open to public traffic of all kinds. Every person has a right to pass over the same. No one can be excluded. This is not the case here. Even the travel to and from the houses fronting on the north of the road can be regulated, and any kind or all other kinds of traffic can be excluded. By ordinance and by the regulations of the Park Commissioner the travel is now regulated and has been so regulated for many years. A street use and a park use are distinct uses. Bennett v. Seibert, 10 Ind. App. 379; Pickett v. Mercer, 106 Mo. App. 696; Riverside v. MacLean, 210 111. 325; Board of Education v. Detroit, 30 Mich. 505. (3) This road is not a street, but a park road, and cannot be used as a street. It cannot be used to fix the south boundary of the assessment district for improving McPherson avenue. Art. 6, sec. 14, City Charter; Collier v. Paving Co., 180 Mo. 390; Buffalo Co. v. Hoyer, 214 N. Y. 236; Commonwealth v. Boston, 135 Mass. 551. (4) The strip of land having been acquired by the county of St. Louis as and for a park road and having been incorporated into the boundaries of Forest Park as a part thereof, and the city having acquired the rights of the county under the scheme of separation, no amount of user by the public of this park road could divest the city as trustee for the public of its right acquired for park purposes and make it a street. Limitation does not . run against the city in this way. Sec. 1886, R. S. 1909 (G. S. 1865, sec.'7, p. 746); Laclede-Christy Co. v. St. Louis, 246 Mo. 460; State ex rel. v. Doniphan, 169 Mo. 615. Use of a park road by the public for any length of time does not change the character of the use or title. Such use is permissive. Cohn v. Parcels, 72 Cal. 367, 370; Hamilton v. Morris, 18 Upper Canada Common Pleas 245, 249; Collier v. Paving Co., 180 Mo. 362. No length of use of a private road will make it a public highway. Bradford v. Fultz, 149 N. W. 929; Princeton v. Gustavson, 241 111. 566; Weldon v. Prescott, 187 Mass. 415.

      Schmtrmacher & Rassieur for respondents.
    (1) “A street is a road or public way in a city, town or village. A way over land set apart for travel in a town or city is a street, no matter by wbat name it may be called. It is tbe purpose for which it was laid out and the use made of it that determines its character.” Elliott on Roads and Streets, sec. 19. (2) The word “street” is a generic term and is broad enough to include boulevards and other restricted public ways and streets like Lindell avenue, which, though a part of the park, are nevertheless used for public street purposes. Paige & Jones on Taxation by Assessment, secs. 307, 401; Park Comrs. v. Farber, 49 N. E. (111.) 433; Bancroft v. Bancroft, 61 Atl. (Del.) 689. (3) Lindell avenue was dedicated and has always been used as a “street” within the meaning of section 14, article 6, of the charter of St. Louis. Steinacher v. Gast, 89 S. W. (Ky.) 481; Collier v. Pav. & Supply Co., .180 Mo. 387. (4) It is part of the Forest Park, but, nevertheless, a street in the park and it must always be used as a street. The city may regulate its use as part of the park, just as the city may regulate the use of all streets; but the regulations must be reasonable; the city cannot.regulate away the rights of adjoining owners or of the public in this strip as a street. (5) The use of the sub-soil at the request of adjoining owners, for general municipal purposes, is a strong circumstance, showing that the strip has been used as a street, even though it is part of the park. Elliott on Roads and Streets, sec. 20. (6) The improvement of the street by adjoining owners under permit from the Board of Public Improvements, their conveyances naming Lin-dell avenue as the street on which their lots front, and their use of it for general street purposes, estop the Forest Park Improvement Association and its grantees from questioning that it is a street. People v. Underhill, 39 N. E. (N. Y.) 333; Hannibal v. Draper, 15 Mo. 634; Rutherford v. Taylor, 38 Mo. 315.-
   WALKER, J.

This is a proceeding to enjoin the collection of special tax bills issued by the city of St. Louis to the defendant O. Eyermann & Bro., contractors, who reconstructed Waterman Avenue between Kingshighway- and Union Boulevard, public streets of said city.

The charter of the city of St. Louis provides how the benefit district which shall bear a portion of the cost of such improvements shall be fixed; section 14, article 6, of the charter in relation thereto being as follows:

“The districts herein referred to shall be established as follows: a line shall be drawn midway between the street to be improved and the next parallel or converging street on each side of the street to be improved, which line shall be the boundary of the district,” etc.

Waterman Avenue, on which the work was done, runs from east to west and is parallel with and quite a distance north of Forest Park.

Plaintiffs, who were the owners of property fronting on Portland Place (a private “Place” within the benefit district)., attack the validity of the tax bills and claim that the Board of Public Improvements, in determining the amount of tax required to be paid by the respective lots in the benefit district, failed to include the entire area legally subject to the tax, and therefore the bills ag’ainst their lots are for excessive amounts.

On the north the board drew the line midway between Waterman Avenue and the next street north. This plaintiffs concede. On the south the board drew the line midway between Waterman Avenue and Lin-dell Avenue, claimed by the board to be the next street south. But plaintiffs claim that Lindell Avenue is not a street within the meaning of the charter, and that the hoard should have drawn the line midway between Waterman Avenue and Berthold Avenue, or possibly Clayton Avenue, a street running through the park, and that the district should thus have included a large part of Forest Park.

Plaintiffs concede that the contract was properly let and the hills were otherwise properly issued. The only ground urged by them is as to the validity of the board’s action in fixing the taxing district.

The contract for the work was let and the special tax bills were issued in 1910 and the status of Lindell Avenue as of that date must be determined. Its history is as follows:

William D. Griswold was the owner of a tract of > eighty acres lying immediately north of Forest Park, bounded on the east by Kingshighway and on the west by Union Avenue. In 1876 Griswold conveyed to the county of St. Louis a strip of fifty feet wide off the south side of said eighty acres, adjoining the north line of Forest Park and extending from Kingshighway to the St. L. K. C. & N. railroad. This strip now is Lindell Avenue, the street in question.

The deed to the county was for the following uses and purposes: “To have and to hold the same to said St. Louis County for the uses and purposes following, viz.: That same shall be incorporated into and be held, improved, used and controlled as a part of Forest Park and shall be subject to the jurisdiction and government of the commissioners of Forest Park in same manner and to same extent as pertains to the general territory and property of same. That said board of commissioners shall cause to be constructed a carriage avenue over the premises described, embracing part of the present north line of the said park adjoining the land hereby conveyed, such carriageway to be not less than fifty feet in width extending from Kingshighway to the line of said railroad, the same for the width of fifteen feet to be completed after the best manner of the other carriage avenues of said park, and for the balance of width to be graded in conformity with the said fifteen feet of width so as to form in connection with same a common avenue, that they shall grade a foot walk along the north side of said avenue corresponding with the level or elevation of same and fronting the said tract of eighty acres, and during the current winter or coming spring, plant shade trees along the curbing or border of said foot walk of such kind and in such distances as to the said commissioners may seem expedient and in harmony with the general improvement of the park. And also said Griswold and persons holding' under him, owners or occupiers of the land and lots fronting upon said avenue and foot walk, shall have outlet and inlet from and into their premises and right of temporary stoppage in front thereof, for all such carriages and teams as by the regulations and rules governing the park -may be allowed to run in the same, and that the streets which may be laid out upon the said eighty -acres may enter and be connected with said avenue, an<f that said streets shall be accessible through the same for all such carriages and teams.”

Upon the separation of the city and county, the strip passed to the city.

Griswold owned the tract until May, 1887, when he conveyed it to the Forest Park Improvement Association ; the deed specifies the metes and bounds of the entire eighty-acre tract. In May, 1888, the grantee platted the tract and laid it out in blocks and lots. The association also dedicated to the city, for the same uses, a short strip fifty feet wide, adjoining the railroad tracks, and extending the strip dedicated by Griswold through to Union Boulevard — thus making a continuous strip from Kingshighway to Union Boulevard. This fifty-foot strip from Kingshighway to Union Boulevard is designated on the city plat as the “Park Road.” The part dedicated parallels the railroad tracks and runs diagonally into Union Avenue. Subsequently the city condemned as a street a strip fifty feet wide, extending the Griswold strip on a straight line from its western terminus to Union Boulevard, and the strip west of Union Boulevard was also acquired for uses similar to the uses created by Griswold, and the same was similarly improved and now makes one continuous straight street from Kingshighway to Skinker Road, although the diagonal piece connecting Union Boulevard with Lindell Avenue is also used as a street.

Soon after the improvement was completed the property was placed on the market and the association disposed of the lots for residence purposes, and all lots fronting on this strip were described as having so many feet fronting on Park Road. In 1903 the name of the street was changed, by ordinance, from Park Road to Lindell Avenue,, and since the plat was filed, in all conveyances of lots fronting on this street, they were described as fronting on Park Road (prior to the change of name), and thereafter as fronting on Lindell Avenue.

After the association acquired #the property, under permit from the Board of Public Improvements it installed a main sewer, water and gas mains therein. The street was also paved, and from time to time, as lots were sold, residences were erected and the owners were granted permits by the sewer department to connect with this main sewer, and by the street department to connect with the water and gas mains and to construct granitoid sidewalks in front of their premises.

In 1889 the city refunded to the association the amount expended by it for the water main and took it over as part of its system, and also the sewer main as part of the district sewer and relieved the property from, special taxation for district sewer purposes.

The city also installed lamp posts for street lighting and fire plugs for fire protection. The lots have all been sold and improved with residences. The houses are numbered,, as on other streets.

In the plat-books in the Assessor’s office, in the Street Department and in the Special Tax Department, the strip has always been carried and treated as a public street.

When Union Boulevard was reconstructed, Lin-dell Avenue was treated as a public street and the special taxes were issued on that basis. When Kings-highway, extending north of Lindell Avenue, was widened, Lindell Avenue was again treated as a public street and the tax bills were issued on that basis. At no time in any of these departments has Lindell Avenue been treated otherwise than as a public street.

The Police Department patrols this street as any other, although the park itself is patrolled only by employees of the Park Department. There was evidence that Lindell Avenue was kept in repair only by the Street Department, but there also was evidence that the Street Department did so only at times when the Park Department was short of funds and that the Park Department at other times also made repairs.

Lindell Avenue has always been sprinkled by the city, as other streets; the advertisements and contracts call for its sprinkling, and the property fronting on the street has always been charged therefor by special taxation, the same as other property fronting on streets in the city of St. Louis. For a number of years the street has been oiled, which eliminates sprinkling, but the sprinkling taxes are levied as before to pay for the oiling instead of sprinkling.

The street has at all times been used for every purpose for which a‘public street may be used, except that after 1907 or 1908 the Park Commissioner ordered that no heavy traffic be permitted on the street, and since that time an effort is made to keep off heavy traffic, except such as is necessary to supply the residences on the street with coal, ice, building material, etc. Such heavy traffic is now and has always been permitted. There was evidence also that only heavy traffic intended for the residences on the street was permitted prior to 1907, except during the World’s Pair period.

Lindell Avenue is a continuation of Lindell Boulevard, an-established street, long in'use before Lindell Avenue was dedicated, and excepting a slight jog at Kingshighway) it makes one continuous street from Grand Avenue to Skinker Eoad — a distance of three or four miles.

Upon the facts above set forth the circuit court found that Lindell Avenue is a street within the meaning of the charter and that the Board of Public Improvements was right in fixing the midway line between Lindell Avenue and Waterman Avenue as the southern boundary line of the benefit district. Prom the judgment dismissing the petition, plaintiffs appealed to this court.

Is Lindell Avenue a Public Street? — The sole matter at issue is whether Lindell Avenue, between Kings-highway and Union Boulevard, is a street within the meaning of the charter; if so, then the judgment of the trial court which denied the right of relators to the injunctive process herein prayed for, should be affirmed; otherwise, reversed.

The title to the strip of ground now designated as Lindell Avenue, between the limits stated, was conveyed to St. Louis County (now city) by William D. Griswold in 1876 with stipulations as to the use to which the ground was to be put by the grantee, viz., in general terms, that it was always to be used as a “carriage avenue.” While it was to be a part of Forest Park, it was to be constructed and maintained as a carriage avenue, by which the grantor meant, not merely a passageway for carriages, but such a highway as would afford the occupiers of lots fronting on said avenue egress and ingress to and from their premises “for all such carriages and teams as by the regulations and rules governing the park may be allowed to run in same. ’ ’ This, as well as other terms in the grant, is indicative of a purpose to dedicate for a public use. [Hannibal v. Draper, 15 Mo. 634.] There is no claim that the city, which became invested with the control of the street as a successor to the county upon the adoption of the Scheme and Charter, has ever attempted to divert the use of same to other purposes than those designated by the grantor, but on the contrary, all the official acts of the municipality, in whatever department exercised, have been in recognition of and in conformity .to the terms of the deed of grant. These are set forth in detail in the statement and their repetition would serve no useful purpose. The fact that the strip granted is by the terms of the deed subjected to the “immediate government of the commissioners of Forest Park” means such regulation as may be exercised by the commissioners in the control of a public street — nothing more. For such purpose was the grant made, and an attempt to exercise other control by the park commissioners would defeat the very purpose of the dedication. In short, the street, or as now designated, Lindell Avenue, must always be open to the public as a highway under the limitations stated; and the fact that it remains a part of the park detracts in nowise from its use as a street, nor is it in any manner inconsistent with its defined character as such. 'It is too well established to admit of argument that land dedicated for street purposes cannot thereafter be diverted for park purposes. Under any reasonable construction of the grant, therefore, the strip must remain a highway, and it was so accepted and has uniformly been so regarded by the city. This fixes its status so far as municipal affairs are concerned. [Collier Est. v. Paving & Supply Co., 180 Mo. l. c. 387.] Lindell Avenue is not the only instance of the establishment of a public street in Forest Park. There are others, not necessary to be enumerated, which, upon their dedication, became permanent in their nature, free from change by the park commissioners, but to an extent subject to their control, as is that part of Lindell Avenue in question, but nevertheless subject to the general control of the city; and unlike drives or roads, which may be abolished or changed as the judgment or taste of the. commissioners may dictate.

It was contended that the city had used the avenue, for general street purposes; this, if true, and in viola-, tion of the terms of the grant, would avail appellants; nothing, because evidence in support of this contention would simply serve to show a further dedication by the city to public use. The establishment of permanent improvements on said street by the city ini accordance with the demands of modern municipal life, such as paving, lighting, sewering and placing water mains therein, in nowise conflicts with the terms of the grant, but constitutes further evidence of the permanent public character of the street. The knowledge and acquiescence of the grantor in this work is further proof of his intention to dedicate this street for public use in all that the term implies. It is established that the intention of the owner, to dedicate for a public use may be shown in various ways, and his approval of the city’s action in this case may well be classified as one of same. [Brinck v. Collier, 56 Mo. l. c. 165; Price v. Thompson, 48 Mo. l. c. 365.]

After all, the real question is not what is seemingly admitted, viz., has Lindell Avenue been established and dedicated as a public street; but has it been so dedicated as to authorize the Board of Public Improvements to designate it as a boundary in the deter-ruination of a special taxing district. That it has been established as a public street for general purposes, both' by private deed and public recognition, the facts sufficiently show. This character having been established, the Board of Public Improvements, under the fourth' paragraph of section 14 of article 6 of the former charter of the city of St. Louis, is authorized to designate it as a boundary determinative of a district for special taxation.

Arguments as to strict construction of a grant and what technically constitutes a dedication; what is “park use;” or the extent of the separate government of the Forest Park commissioners, as contradistinguished from the general control of the city of St. Louis.; and the claim that the grantees under the Gris-wold deed must be confined literally to the terms of same, have but little substantial weight in the face of the many cogent facts to establish the dedication of the. strip as a street and its recognition and adoption as such by the city.

We have reviewed the numerous cases cited and discussed by counsel for appellants as sustaining their contention, but find no substantial merit in them. We therefore hold that the judgment of- the trial court denying the right of appellants to the injunctive relief prayed for should be affirmed, and it is so ordered.

All concur.


author: WILLIAMS, C.

text:
    THE STATE v. JAMES COFF, Appellant.
    Division Two,
    February 15, 1916.
    1. INSTRUCTIONS: No Assignment in Motion. Whether or not it was error to give an instruction on murder in the second degree, or to fail to give an instruction on involuntary manslaughter in the fourth degree, or to give an instruction concerning the bad feeling existing between defendant’s and decedent’s families, or to give an. instruction on manslaughter in the fourth degree, will not be reviewed on appeal, where none of these matters was assigned as error in the motion for a new trial.
    2. ACCIDENTAL HOMICIDE: Instruction Required. Where the evidence for defendant tended to show that his participation in the combat was merely that of a person defending himself, and that he was, therefore, engaged in a lawful act; that while in the act of defending himself, the deceased grabbed him by the throat, and in order to protect himselE he shoved deceased away, causing him to stagger and fall; and that in the fall deceased’s head struck the curb-stone and received the fatal wound, the statute (Sec. 4452, R. S. 1909) declaring that homicide shall be excusable when committed “upon sudden combat, without any undue advantage being taken and without any dangerous weapon being used, and not done íd a cruel and unusual manner” required the court to give an instruction on accidental homicide; and a failure to do so, where the point was properly raised at the trial and preserved for review, was reversible error.
    Appeal from St. Louis City Circuit Court. — Hon. William T. Jones, Judge.
    Reversed and remanded.

      Thomas J. Roive, Jr., and Henry Rowe for appellant.
    (1) The court erred in failing to instruct the jury on the theory that deceased may have gone to his death hy accident or misfortune, and on the evidence in the case defendant was entitled to such instruction. State v. Reed, 154' Mo. 122; French v. Commonwealth, 88 S. W. 1070'; Sec. 4452, R. S. 1909; State v. Cook, 3 L. R. A. (N. S.) 1152. (2,) The court erred in failing to instruct the jury on the law applicable to the evidence of the combat between defendant and William Conway, son of deceased, and the subsequent participation of deceased therein.

      John T. Barker, Attorney-General, and Lewis LL. Cook for the State.
    (1) It is well established that the defendant is required to call the court’s attention particularly in the motion for a new trial to the question upon which it failed to instruct the jury, in order to entitle him to a new trial upon such ground. That was not done in this case. No instruction was asked on this proposition. Neither was the attention of the court called specifically in the motion for a new trial to its failure to so instruct. This court has recently ruled that a general specification in the motion is insufficient, in that it fails to Call the attention of that court to the particular point omitted in the instructions. State v. Conway, 241 Mo. 271; State v. Walls, 262 Mo. 113; State v. Douglas, 258 Mo. 281; State v. Sydnor, 253 Mo. 380; State v. Wellman, 253 Mo. 316; State v. Sykes, 248 Mo. 712; State v. Horton, 247 Mo. 663; State v. Chissell, 245 Mo. 555; State v. Connors, 245 Mo. 482; State v. Bostwick, 245 Mo. 483; State v. Harris, 245 Mo. 450; State v. P'errigan, 258 Mo. 237; State v. Dockery, 243 Mo. 592. (2) It is conceded that defendant is entitled to clear and explicit instructions as to excusable and justifiable homicide, where there is any evidence in the case to support the theory, but where it plainly appears that in no view of the case is the law of excusable or justifiable homicide applicable, a refusal or omission'to give instructions on those points is not error. In the cas-e at bar every witness, including the defendant, testified that defendant struck deceased one or more blows under circumstances that would preclude any instructions on justifiable homicide.
   WILLIAMS, C.

Under an indictment charging him with murder in the second degree, defendant was tried in the circuit court of the city of St. Louis, found guilty of manslaughter in the fourth degree, and his punishment assessed at two years in the penitentiary. Defendant duly perfected an appeal.

There was evidence tending to establish the following facts:

At the time of the tragedy, it appears that defendant, a blacksmith, twenty-eight years of age, resided with' his parents at No. 3909 Kennerly Avenue, in St. Louis, Missouri. W. A. Conway, together with his wife and fourteen-year-old sister, were tenants of the second story of the house next door to the east, being No. 3907 Kennerly Avenue; the lower portion of that house being occupied by a family by the name of Hazlit.

About a week before this tragedy, Benjamin F. Conway, the father of W. A. Conway, came from his home in Kentucky to make his son a visit. Benjamin F. Conway is the deceased.

The Conway family had been living in this house about four and one-half month's and it appears that, during that time, considerable ill feeling had grown, up between the women of the two households, the nature of which is not disclosed. About two months prior to' the tragedy, the Coffs had cáused to be erected at the rear of their premises, 'and on the side next to the house occupied by the Conways, a high brick wall so as to prevent persons in the Conway-house from seeing persons to the rear of the Coif house. A sheet-iron shutter or shield was also erected on the Coff premises, immediately in front of one of the windows in the Conway house.

The killing occurred on September 4, 1914. The owner of the Conway house had. employed a painter-to paint the same. The space between the two houses was about two and one-half feet. The day before the tragedy, the painter had placed the bottom of his ladder over on the Coff premises and, in doing so, had slightly injured a hedge belonging to the Coffs. Mrs. Coif called a policeman and had the painter remove the ladder.

The next day, about 11 a. m., W. A. Conway and the owner of the house in which he lived were out in the front yard looking at the painting. The painter was painting on the front porch, but was not using a ladder. Mrs. Coff was sitting on her front porch. She exhibited a revolver and stated to W. A. Conway that if they came over on her premises, they would be killed. W. A. Conway replied that he would have her arrested. A policeman was called' and after a short conversation, W. A. Conway and his wife and the. owner of the building proceeded down to the Municipal Courts Building for the purpose of having a warrant issued. It appears that the defendant returned to his home just about the time that the Conways started down town and while the Conways were waiting for a street car they saw the defendant coming toward them and they moved down the street two or three blocks to catch a car.

That same evening, about six o’clock, W. A. Conway and his wife started out for a little walk. In a few minutes, Benjamin F. Conway (the deceased) and his fourteen-year-old daughter started down the street to mail a letter. They overtook W. A. Conway and his wife, who had stopped 'to observe a show window, and asked them to wait while they went down the street and mailed a letter. The deceased and Ms daughter proceeded about a half block, and, at this time, the defendant, on his way home from work, passed W. A. Conway and his wife on the street. (In order that the testimony may be better understood, we will refer to W. A. Conway as Conway, Jr., and jBenjamin F. Conway, the deceased, as Conway, Sr.). Defendant as he approached Conway, Jr., said, “You G — d—• s— of a b — , I am going to kill you for insulting my mother.” Conway, Jr., started to say, “I didn’t insult your mother,” but before he could say it, defendant knocked him down. Conway, Jr., then got up and defendant again knocked him down and was on top of Conway, beating him, when Conway’s wife called for Conway, Sr., who was then about a haif-block away. Conway, Sr., ran over to the scene of the fight, carrying the letter in his hand, and threw something which appeared to some of. the witnesses to be a paper and called out to the two men to stop. Defendant then turned upon Conway, Sr., and struck him a blow which felled him to his knees. Conway, Sr., arose and defendant struck him another blow which knocked him down and as he fell his head struck the curb-stone. Defendant then kicked Conway, Sr., •several times, and he rolled into the gutter unconscious. He never regained consciousness and died the following day at a hospital.

The evidence upon the part of the State tends to . show that neither Conway, Jr., nor Conway, Sr., struck at the defendant. Conway, Jr.’s, testimony was _ corroborated by the following eye-witnesses to the fight, to-wit: Alex Campbell, Catherine M. Conway, Frank D. Williams and Elizabeth Conway.

The deputy physician to the coroner testified that he made an examination of the body of the deceased and described the deceased as being a white male, about fifty years of age. He found a fracture of the skull, about three inches long, on the left side of the head, extending down into the base of the skull.

The evidence upon the part of the defense tends to establish the following facts:

Defendant, testifying in his own behalf, said that he was going home from work about six o’clock and that Conway, Jr., stopped him at the corner of Maffitt Street and accused him of using vulgar language in the presence of Mrs. Conway. Defendant attempted to reply by telling Conway that he had insulted defendant’s mother, but, before he could do so, .Conway, Jr., struck him a blow in the mouth. Defendant then struck Conway, Jr-., and knocked him down. Mrs. Conway then grappled with the defendant and, defendant heard someone say, “Look out.” Defendant then broke Mrs. Conway’s hold and turned just in time to see Conway, Sr., rush up with, an old broom with which he tried to strike defendant, but the broom slipped from Conway, 'Sr.’s, hand and missed the defendant. Conway, Sr., then grabbed defendant by the throat, but defendant shoved Conway, Sr., and he staggered out into the gutter and fell.

On cross-examination of the defendant, the following occurred:

“Q. Then you knocked him (Conway, Sr.) ( down? A. No, sir, not until he choked me.”

Later in his cross-examination, the following' questions and answers were given:

“Q. Did the old man get hold of your throat? A. Tes, sir, both hands around my throat.
“Q. And then you pushed him off, at that time, is that so, pushed him off and struck him? A. No, sir, I didn’t stiike him; I just pushed him away from me and he staggered and fell.
“Q. Ton pushed him away and he staggered and. fell. Tou didn’t hit him at all then? A. Why you can call it hitting if you want; I just stuck my arm. out.
“Q. Tou just pushed him off and he staggered and fell, is that your story? A. Tes, sir, that is my story.
“Q. Then your story to the jury is you didn’t hit the old man at all, but you pushed him off as he grabbed your throat, and you pushed him off and he-fell? A. Tes, sir, I pushed him off and he fell.
“Q, Then you didn’t hit him in the face or anywhere else? A. No, I pushed him; maybe that, marked his face.”

Defendant testified that after the fight his lip was swollen and his neck was scratched in many places ■and his shirt was torn to shreds.

Albert Smith testified for the defendant that Conway, Sr., threw a broom at the defendant and then caught the defendant by the throat and that defendant broke loose and hit the deceased, causing him to fall to the sidewalk and roll into the gutter. Four other witnesses corroborate the testimony of witness Smith, some of them saying that deceased’s head struck the curb as he fell.

Several witnesses testified that the general reputation of defendant for peace and quietude, prior to this controversy, was good.

I. Appellant contends that the court erred (1) in giving an instruction on murder in the second degree, (2) in failing to give an instruction on involuntary manslaughter in the fourth degree, ^ gpv^ng the instruction concerning the bad feeling existing between the two families, and (4) in giving the instruction on manslaughter in the fourth degree.

Concerning each and every one of the above points, it is sufficient to say that these matters were not assigned as errors in the motion for a new trial, and we are, therefore, precluded from a review of the same.

II. It is further contended that the court erred in failing to instruct the jury on the theory of an accidental homicide. This point is properly raised and preserved for our review, and we have reached the conclusion that the same is well taken.

Accidental or excusable homicide is defined by section 4452, Revised Statutes 1909, as follows:

“Homicide shall be deemed excusable when committed by accident or misfortune, in either of the following cases: First, in lawfully correcting a child, ápprentice or. servant, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without unlawful intent; or second, in heat of passion, upon any sudden or sufficient provocation, or upon sudden combat, without any undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel and unusual manner. ’ ’

It will be noted that the evidence of defendant tends to show that his participation in the combat was merely that of a person defending himself, and that he was? therefore, engaged in a lawful act; that while in the act of defending himself, the deceased grabbed him by the throat, and in order to protect himself he shoved deceased away, causing him to stagger and fall. In the fall deceased’s head struck the curb and received the fatal wound. If, therefore, defendant’s evidence be true, the death occurred by accident or misfortune “upon sudden combat, without any undue advantage being taken, and without any dangerous weapon being used, and [the killing was] not done in a cruel and unusual manner.” Such evidence was sufficient to justify an instruction on the theory of an accidental killing and the court, therefore, erred in failing to so instruct.

The Wisconsin statute is almost identical with the above quoted Missouri statute, and the Supreme Court of Wisconsin in two cases, where the evidence was not so favorable to defendant as is the evidence in the case at bar, held that the court erred in failing to instruct the jury on accidental homicide as defined by said statute. [Campbell v. State, 111 Wis. 152; Ryan v. State, 115 Wis. 488.]

It follows that the judgment should be reversed

and the cause remanded. It is so ordered.

Roy, G.f concurs.

PER CURIAM. — The foregoing opinion by Wil-

liams, C., is adopted as the opinion of the court.

All of the judges concur.


author: FARIS, P. J.

text:
    THE STATE v. CHARLIE PFEIFER, alias CHARLES N. PETERS, Appellant.
    Division Two,
    Febuary 15, 1916.
    J.. SODOMY: Covered by Statutes, Etc. Notwithstanding section 4725, Revised Statutes 1909, was repealed and re-enacted, with an amendment, in 1911, the crime of sodomy may be committed by a man by inserting his sexual organ in the mouth of a woman.
    2. EVIDENCE OF OTHER CRIMES: Res Gestae. Where the information charges sodomy per os it is not error to admit evidence tending to show sodomy per anum where the proof shows both acts were so connected as to show both were parts of the res gestae.

    3. -: -: Restricted by Instruction: No Exception. Nor can an assignment that an instruction should have been given at the trial restricting the evidence of the crime not charged 'be considered on appeal where no exception was saved to the giving or refusal of any instruction, or to the giving of the whole" instructions.
    4. -: -: —-: Not Required. And where the two crimes are parts of the res gestae, and testimony tending to prove that one not charged is therefore admissible, no instruction as to the evidentiary weight of the testimony or the purpose for which it may be considered is required.
    5. DEFENDANT: Cross-Examination. In view of the plain wording of the statute (Sec. 5242, R. S. 1909) forbidding them, questions asked defendant in cross-examination upon matters neither touched upon nor growing out of his examination in chief, are presumed to be prejudicial error, unless the contrary is made to appear; and where he is compelled to state all his movements the night of the crime, his acquaintanceship with two other persons who had committed a crime against the same woman two hours before he and they are charged with having committed a similar crime against her, and whether or not he and they had been companions since their school days and frequenters of the same saloon — all matters not touched upon in his examination in chief and brought out for the purpose of corroborating a police officer — the questions were not only unwarranted but were prejudicial.
    6. -: -: One Law for Innocent and Guilty. There can be but one law for the trial of the innocent and guilty; and notwithstanding the court may be of the opinion that the evidence is sufficient to warrant a verdict of guilty, a plain statute- forbidding the cross-examination of a defendant concerning matters wholly outside his examination in chief must be applied to all defendants alike. The Constitution has not ordained that apparent guilt is the sole condition of affirmance by the Supreme Court of a verdict of guilty.
    Appeal from St. Louis City Circuit Court. — Hon. W. T. Jones, Judge.
    Reversed and remanded.

      Paeben & Friday for appellant.
    (1) Section 4725-, R. S. 1909, was repealed and. reenacted by the General Assembly in 1911 (see Laws 1911, p. 198). Tbe amendment of 1911 does not make tbe act set out in tbe information, nor testified to in the evidence, a crime. The act charged did not constitute an offense at common law nor does it constitute an offense under tbe statute. Since tbe statutes of Missouri do not undertake to define tbe meaning of the phrase, ‘ ‘ The abominable and detestable crime against nature,” but merely prescribe a punishment, we must go to tbe common law to ascertain tbe meaning of tbe words used. 12 Cyc. 141; State v. Rader, 262 Mo. 129; 8 Am. & Eng. Ency. Law, 276; Brandon v. Carter, 119-Mo. 572; State v. Hartley, 185- Mo. 669; Sec. 8047, R. S. 1909; United States v. Freight Assn., 58 Fed. 58; Ex parte Vincent, 26 Ala. 145; Commonwealth v. Chapman, 13 Metcf. (Mass.) 68; State v. Cowley, 67 Vt. 322. (2) At common law tbe phrase “Tbe abominabl-e and detestable crime ag'ainst nature ’ ’ was clearly defined. It was sodomy when committed with mankind and buggery or bestiality when committed with an animal. Tbe act described in the information and referred to in tbe testimony in tbe case was neither of these offenses. Tbe use of tbe mouth does not constitute sodomy. Tbe act must be per anum. Bishop’s Crim. Law, secs. 1191-1196; Ausman v. Veal, 10 Ind. 356; People v. Boyle, 116 Cal. 658; Prindle v. State, 31 Tex. Crim. 551; Wharton on Crimes, secs. 575-579; Russell on Crimes, 937; Commonwealth v. Poindexter, 133 Ky. 720; McLean’s Crim. Law, 1153; Davis v. Brown, 29' Ohio St. 312.6; Estes v. Carter, 10 Iowa, 400; Kinnanv. State, 125 N. W. (Neb.) 594. (3) The testimony of Dr. A. C. Vickery over the repeated objections of the defendant as to the physical condition of the rectum and vagina of the prosecuting witness was clearly inadmissible and could, serve no other purpose than the purpose of inflaming the minds-of the jury against the defendant. Evidence of other crimes committed by the defendant are clearly- inadmissible. Here we have testimony of a crime not committed by the defendant, but by some other person with which the defendant is not in the remotest manner connected by participation, conspiracy or otherwise. Even the attorney for ..the State said that the purpose of this testimony should be covered by an instruction which the court failed to give. State v. Hyde, 234 Mo. 200; State v. Myers, 174 Mo. 352; State v. Weaver, 165 Mo. 1; State v. Faulkner, 175 Mo. 546; State v. Spray, 174 Mo. 569; R. S. 1909, sec. 5-231; State v. Taylor, 118 Mo. 171. (4) The State was permitted on cross-examination, in spite of repeated objection thereto, to examine the defendant touching matters not brought out on the examination in chief. R. S. 1909', sec. 5-242; State v. Mc-Graw, 74 Mo. 573; State v. Porter, 75 Mo. 171; State v. Palmer, 88 Mo. 568; State v. Graves, 95 Mo. 510; State v. James, 216 Mo. 404. (5) The State’s attorney was allowed over the objection of the defendant to comment in his address to the jury on matters regarding which the defendant did not testify, and in regard to the flight of the defendant regarding which there was no testimony. State v. James, 216 Mo. 405-; State v. Fairlamb, 121 Mo. 150.

      John T. Barker, Attoraey-G-eneral, and Lee B. Ewing, Assistant Attorney-General, for the State.
    (1) The information charges a felony under the statute (Laws 1911,_ p. 19$) and is sufficient. State v. Katz, 266 Mo. 493; State v. Wellman, 253 Mo. 311; State v. Kelly, 192 111. 119-; State v. Honsleman, 168 111. 172; State v. Means, 125 Wis. 650;. (2) No objection was made to the instructions given. No instructions were refused. Therefore, the only question, relative to the instructions, that this court will review is ■whether or not they cover all the law- of the case. State v. Douglas, 258 Mo. 281. The given instructions fully cover every issue in the case. (3) There was no reversible error in the trial court’s rulings upon the admission of testimony. The testimony as to the physical condition of prosecutrix, as shown by the examination of the dispensary physician, Dr. Vickery, was admissible. Kelly’s Crim. L. & Pr., sec. 541; State v. Scott, 172 Mo. 536; State v. Murphy, 118 Mo. 7; State v. Reed, 237 Mo. 224; State v. Mathews, 98 Mo. 128; State v. Fields, 234 Mo. 626; State v. McKinney, 254 Mo. 453'. In the cross-examination of accused, there was no prejudicial error, (a) It was legal cross-examination. State v. Keener, 225' Mo. 500; State v. Donnington, 246 Mo. 354; State v. Eisenhour, 132 Mo. 148; State v. Harvey, 131 Mo. 345; State v. Benning, 91 Mo. 85; State v. Cunningham, 154 Mo. 174; State v. Foley, 247 Mo. 638-, State v. Myers, 221 Mo. 598; State v. Miller, 156 Mo. 76. (b) Even if held to be erroneous, this cross-examination was not prejudicial to accused, and, therefore, not reversible error. State v. Baldwin, 247 Mo. 635; State v. Corrigan, 262 Mo. 209; State v. Barrington, 198 Mo. 81; State v. Brooks, 92 Mo. 582.
   FARIS, P. J.

Defendant appeals from a conviction in the circuit court of the city of St. Louis on the charge of sodomy, and a resulting sentence in accordanee with the verdict to imprisonment in the penitentiary for a term of two years.

The case is a companion case to that of State v. Katz, decided at this term, and officially reported in 266 Mo. 493. The facts and the acts of defendant here were the same as the facts and the acts of defendant Katz in the case supra. They transpired at the same time and place and were perpetrated upon the identical victim, one Mary Emmenegger. The only difference in the eases is that defendant here did not appear upon the scene or take part in the commission of the acts alleged till after Mary Emmenegger had been in the hands of Katz and his confederates for some two hourn or moie, and until she had been taken to the rear of a certain building mentioned in the Katz case and called the old Cherokee Brewery. Thereupon and at that place defendant appeared and said to her that he was the head of these detectives, the boss over them, and that she would have to submit to the same things from him that she had submitted to from the others. Then the four of them, to-wit, Katz, Long, G-ausmann and this defendant took her to a point in the rear of the old brewery where defendant assaulted her and thrust his private male organ into her mouth; the latter act constituting the phase of alleged sodomy charged and here relied on.

The facts are inexpressibly filthy, and since they have been set out already, another cumbering of the books with their abysmal obscenity would subserve no useful purpose. The more so, since regard being had to the nature of the errors urged, it is obvious that a solution of them is to no substantial extent dependent upon the intimate details of defendant’s attack upon the prosecuting witness. If, however, these details be found necessary to an understanding of the points, they may be read in the Katz case.

I. The point is made that neither the information charges, nor the facts show, that defendant committed any crime known to the laws of this State. These eontentions are both bottomed on the assumption . . that since section 4726, Revised Statutes 1909 (which was repealed and re-enacted in 1911, with an amendment, Laws 1911, p. 190), dehors such amendment, refers us to the common law for a definition of sodomy, the amendment in question added nothing to it, and was in fact utterly nugatory. In short, that it is yet legally impossible, the statute to the contrary notwithstanding, to commit the crime of sodomy in the manner charged and proved in this case. These contentions have been ruled against defendant in the case of State v. Katz, supra, and with the holding on this point in that' case we are content.

II. It is also strenuously urged that by the testimony of Dr. Vickery incompetent and hurtful evidence touching the physical condition of the prosecuting witness’s private parts came into the ,case. This upon the theory that since the charge here is sodomy perpetrated per os, testimony showing, or tending to show a rape and sodomy per anum, showed other crimes and was therefore prejudicial and inadmissible. In this contention learned counsel loses sight of the fact that while the testimony so bitterly complained of may have tended to show rape, and other acts of sodomy, ergo, another sodomitical crime, yet the proof also showed that all of these acts and things were parts of the res gestae and admissible as such, regardless of the fact that defendant may have been hurt by testimony concerning them. [State v. Anderson, 252 Mo. 83.] This was his misfortune, for which he and not the State is at fault. He should see to it that he commits but one felony at a time. "We disallow this contention so far as regards the phase of it set forth above.

Upon the alleged error ’bottomed upon the contention that an instruction ought to have been given re-striding the purposes of this evidence of other crimes, it is sufficient to say that under the condition of this record we are not permitted to review any error based upon the instructions, since no exception is anywhere taken or saved to the giving of or refusal to give any instructions in the case, or to the giving of the whole of the instructions. [State v. Vinso, 171 Mo. 576; State v. Eaton, 191 Mo. 151; State v. Urspruch, 191 Mo. 43; State v. Welch, 191 Mo. 179; State v. Dilts, 191 Mo. 665; State v. King, 194 Mo. 474; State v. McCarver, 194 Mo. 717; State v. Maupin, 196 Mo. 164; State v. Delcore, 199 Mo. 228; State v. Beverly, 201 Mo. 550; State v. Yandell, 201 Mo. 646; State v. Chenault, 212 Mo. 132; State v. George, 214 Mo. 262; State v. Sassaman, 214 Mo. 695; State v. Rhodes, 220 Mo. 9; State v. Nelson, 225 Mo. 551; State v. Kretschmar, 232 Mo. 29; State v. Stevens, 242 Mo. 439; State v. Sykes, 248 Mo. 708; State v. Patrick, 107 Mo. 147; State v. Gordon, 196 Mo. 185; State v. Tucker, 232 Mo. 1; State v. Morgan, 196 Mo. 177; State v. Harris, 199 Mo. 716.] Another answer is that heretofore given, viz., that the evidence was a part of the res gestae, and for this reason, and since it fell naturally among the facts, no instruction as to its evidentiary weight or purpose was required to be given. If it had not been a part of the res gestae its admission would have been an error in this sort of case, which no instruction could have cured, present proper preservation of the point. What we here say as to lack of exceptions, also disposes of all assignments of error bottomed in any wise upon the instructions given, or wMch the court failed or refused to give.

III. Complaint is made that, over the objections of defendant, counsel for the State was permitted to comment upon the fact that defendant did not testify touching certain mentioned matters while tm was 011 the stand. This assignment is not borne out by the record. An objection, it is true, was made by counsel for defendant to a part of the argument of the State before the jury, on this alleged ground, but the trial court then ruled — correctly as is plain upon the record — that what was said by counsel for the State did not have reference in any wise to any failure of the defendant to cover any fact in his testimony. So we need not now consider whether the cases cited to us by the defendant were, or were not, correctly overruled in State v. Larkin, 250 Mo. 218.

IV. Which brings us to a consideration of the one serious point in the case, to-wit, whether the court erred in permitting the State, over the objections of defend-to ask defendant ,. , tions on cross-examination upon matters not touched upon in, or growing out of, his examination in chief. The record bears out this complaint of defendant fully, and discloses a cross-examination of defendant which, standing alone, is utterly inexcusable.

The examination of defendant in chief consisted of three questions: He was asked his name, his age and whether he had committed the specific offense charged in the information. Answering, he gave his name as Charles H. Pfeifer, his age at 29 years and he denied he had committed the crime charged. This was all. In cross-examination the State asked him forty-six questions outside of his examination in chief, among others, for example, (a) where he was on the night the assault was made on the prosecuting witness, (b)' where he was at four o’clock of the morning following; that assault, (c) where and when he went to bed, (d) at what places ■ he had been and with whom, and whom he saw that, night, (e) whether he knew Katz, Gaussman and Long, (f) how long he had known them, and (g) whether be had seen them on the night in question, and (h) whether he w;as not known by the name of Charles H. Peters (the alias contained in the information) and also whether he was not known by the name of ‘ ‘ Cockey. ’ ’

It is not contended that any of this cross-examination was directly responsive to anything defendant said in his examination in chief. It'is urged in excuse of it that the State is not to- be confined in its cross-examination of an accused person on' trial to a mere categorical reiteration of the examination in chief, and besides, regardless of the violation of the statutory rule forbidding such cross-examination (Sec. 5242, R. S. 1909), defendant was not hurt by any part of it in the case at bar. On these two propositions we are cited, to the cases of State v. Keener, 225 Mo. l. c. 500; State v. Corrigan, 262 Mo. 195; State v. Barrington, 198 Mo. l. c. 81; State v. Brooks, 92 Mo. l. c. 582; State v. Miller, 156 Mo. 76; State v. Myers, 221 Mo. 598; State v. Foley, 247 Mo. l. c. 638; State v. Cunningham, 154 Mo. l. c. 174; State v. Berning, 91 Mo. l. c. 85; State v. Harvey, 131 Mo. l. c. 345; State v. Eisenhour, 132 Mo. l. c. 148; and State v. Donnington, 246 Mo. l. c. 354. These cases furnish, it may be, under the facts existing; here, ample authority to excuse the asking of all questions except ■those having reference to whether he knew Katz and G-aussman, how long he had known them, and seriatim as to his movements after defendant left his own witness, Smitters. If the statute is to be regarded, these questions are inexcusable and are reversible error. [State v. Grant, 144 Mo. 56; State v. Hathhorn, 166 Mo. 239; State v. Hudspeth, 150 Mo. l. c. 31; State v. Bell, 212 Mo. 111; State v. Cook, 112 S. W. l. c. 712; State v. Sharp, 233 Mo. l. c. 284.] It is impossible to say upon the facts that these questions and answers did not hurt defendant. The other forty-three may be excused by the authorities cited above and by others not cited; at least we may so concede for the purposes of this case. But where a plain statute forbids such cross-examination, hurtful error is to be presumed, from a failure to observe that statute, unless the contrary clearly appears. Under the facts here, when it had been shown by the testimony and not denied, that for some two hours or more said Katz, Gaussman and Long had held prosecutrix in custody and brutally assaulted, maltreated and mistreated her in the precise way defendant is here charged with doing, and when other testimony in the case put defendant within less than four hundred feet of the place of the occurrence of the said acts done by Katz and others about the time these acts were happening, it cannot be excused as harmless error, that . defendant, dehors his examination in chief, is forced to corroborate Officer McCullough and to admit his meeting McCullough at the point the latter had already testified to having met him. Neither can it be called innocuous error that he was compelled to admit an acquaintance with said Katz and Gaussman extending over a period which began in their school-days, and that the three were all frequenters of his father’s saloon, in the light of the heinous acts of these parties as this record then showed these acts without a syllable of contradiction. So, not only does it not clearly appear that these unwarranted questions and answers did not hurt defendant, but per contra, it clearly appears that they did prejudice him.

It is urged that defendant may not simply deny his acts and then refuse to go into details to contradict his denial when the State cross-examines him, and that that is what is meant in State v. Miller, supra, where it is substantially said that the State is not to be confined to a categorical reiteration of defendant’s examination in chief. But, even a departure from categorical reiteration, does not comport a latitude as broad as the entire case, as was here present. Morever, such an argument palpably begs the question and assumes the g’uilt of defendant, instead of proving his guilt, as the object of a trial is. For, if defendant were perchance innocent, the moment he says he did not commit the offense with which he is charged, and the moment he says he did not see the prosecutrix at all that night, he has told all he knows about the case. To assume that he is falsifying and that he does know more, is to assume his guilt and beg’ the question, and to an extent compel him to convict himself. Such procedure and such assumption, aside from the statute supra, may be logically excusable in trying a guilty man, but not even excusable in logic in trying an innocent one. There can be but one law, if we are to hold fast to and retain any stable rules of law at all, by which to try both the guilty and the innocent. Defendant may be guilty; we think the record show’s he is, and that the evidence is amply sufficient to warrant the verdict of the jury. But notwithstanding this the law guarantees to him the same kind of a trial an innocent person gets, and till such time as the Legislature and those who make State Constitutions shall see fit to ordain that apparent guilt is the sole condition precedent to an affirmance here, it will continue to be our duty to see to it that he and others' similarly situated get this kind of a trial.

For the manifold errors in .going outside of the statutory prohibition in cross-examining defendant, this case must be reversed and remanded for a new trial. Let this be done.

All concur.


author: REVELLE, J.

text:
    THE STATE v. JAMES L. ARNOLD, Appellant.
    Division Two,
    February 15, 1916.
    1. CARNAL KNOWLEDGE: Evidence of Prosecutrix’s Age. Where the statute requires the prosecutrix to be under fifteen years of age in order to constitute sexual intercourse with her rape, proofi that she was not fifteen at the time should be satisfactory and if possible her testimony thereto should be corborated.

      2. -: -: Family Record. Where the prosecutrix has testified that she was at the time of the carnal knowledge under fifteen years of age, and that her knowledge of her age was obtained from her parents and a family record, and the book being produced testified that it had been changed, the record, showing the date of birth of herself and brothers and sisters, should be admitted in evidence, and it was error to reject it, for three reasons: first, it was evidence of her true age; second, it was competent as tending to show that her statement of her age, based as she said, on said record, was false; and, third, it would tend to contradict her statement that the record, which, admittedly, for sometime had been in defendant’s possession, had been changed.
    3. -: Pregnancy; Year After Offense. Where the trial for rape" occurs more than twelve months after the prosecutrix was fifteen years of age, testimony by her and her physician that at the trial she was pregnant, and ,by her that her pregnancy was due to sexual intercourse with defendant, is incompetent, and if admitted is reversible error.
    4. -: Continuance: Age of Prosecutrix. Ordinarily in a prosecution for carnal knowledge of a female under fifteen years of age, where her age is a vital issue, an application for a continuance, based on the absence of her grandmother, sick and unable to attend the trial, who, if present, would testify that at the time of the ’ offense she was over, fifteen, should not be denied.
    5. REMARKS OF COUNSEL! Not Preserved for Review. An assignment that the State’s counsel was guilty of improper conduct in resorting, to unwarranted argument cannot be reviewed if such matters are not preserved in the bill of exceptions.
    Appeal from New Madrid Circuit Court. — No». Frank Kelly, Judge.
    Reversed and remanded.

      Riley <& Riley, Thomas Oallivan and E. F. Sharp for appellant. '
    (1) The court erred in overruling the application for a continuance filed by the defendant on the ground of the sickness of Mrs. Baum, a most important witness. State v. Hesterly, 182 Mo.' 32; State v. Maddox, 117 Mo. 667; State v. Dewitt, 152 Mo. 8-5; State v. Warden, 94 Mo. 650; State v. Bradley, 90 Mo. 160. (2) The court erred in permitting the prosecuting witness to state on the stand, over the objection of the defendant, that she was pregnant and that the defendant was responsible for her condition. State v. Palmberg, 199 Mo. 233; State v. Scott, 172 Mo. 536; State v. Houx, 109 Mo. 654; State v. Evans, 138 Mo. 125; People v. Clark, 33 Mich. 112. (3) The court erred in permitting Dr. E. E. Jones to testify that he had made an examination of the prosecutrix a short time before the trial and that he found from such examination that she was pregnant. In the case at bar the court admitted Dr. Jones to testify as to her physical condition fourteen months after the date of the alleged act and over a year after the -time when, according to her statement, she became fifteen years of age, and capable of consent under the law. State v.. Evans, 138 Mo. 125; State v. Houx, 109 Mo. 662; State v. Scott, 172 Mo. 541. (4) The court erred in refusing to admit the family record as kept in the family of the prosecuting witness and which record would have shown her to have been over fifteen years of age at the time of the alleged intercourse. State v. Houx, 109 Mo. 664. The book was not a Bible, but was an “agricultural” report book. What kind of a book it was is immaterial. State v. Neasby, 188 Mo. 471; Beckham v. Nacke, 56 Mo. 546; Wigmore on Evidence, 1495'; MeKelvy on Evidence, secs. 153-160.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
    (1) Absent a motive for a false accusation, a conviction may be sustained for statutory rape upon the uncorroborated testimony of the prosecutrix. State v. Manuel, 263 Mo. 674; State v. Stockhouse, 242 Mo. 449; State v. Tevis, 234 Mo. 276; State v. Goodale, 2Í0 Mo. 282; State v. Brown, 209 Mo. 413; State v. Donnington, 246 Mo. 343.' (2) The evidence is sufficient to sustain the verdict. State v. Manuel, 263 Mo. 273; State v. Bowen, 247 Mo. 584; State v. Stockhouse, 242 Mo. 444; State v. Miner, 263 Mo. 275; State v. Swain, 239 Mo. 727; State v. Lovitt, 243 Mo. 510; State v. Skillman, 228 Mo. 436; State v. Devorss, 221 Mo. 473; State v. Pipián, 221 Mo. 464; State v. George, 214 Mo. 271; State v. Campbell, 210 Mo. 234. (3) An application for a continuance is addressed to the sound discretion of the court, with the exercise of which an appellate court will not interfere, unless it clearly appears from all the facts and circumstances that such discretion has been abused to the prejudice of appellant. State v. Sassaman, 214 Mo. 735; State v. Cummings, 189 Mo. 640; State v. Sublett, 191 Mo. 171; 'State v. Richardson, 194 Mo. 335; State v. Temple, 194 Mo. 250; State v. McKenzie, 228 Mo. 397; State v. Cain, 247 Mo. 704. (4) It is not error to refuse a continuance because of an absent witness when the téstimony of such witness would be merely cumulative. State v. Horn, 209 Mo. 462; State v. Temple, 194 Mo. 252; State v. Crane, 202 Mo. 74; State v. Riddle, 179 Mo. 295. (5) When diligence is not shown it is not error to deny a continuance. (6) Prosecutrix was competent to testify to her own age subject to cross-examination. State v. Marshall, 137 Mo. 466; State v. Evans, 138 Mo. 121; State v. Congat, 121 Mo. 463. (7) United States census reports and certified copies, thereof, containing the name, age, sex, color and occupation of inhabitants of this country, being public official records, required by law to be kept, and made by sworn public officials, are competent evidence to show the age and date of birth of such inhabitants. Priddy v. Boiee,, 201 Mo. 333, 9 L. R. A. (N. S.) 733.
   REVELLE, J.

This is a prosecution by information charging rape upon a female child under the age of fifteen years. Trial resulted in a verdict of guilty, and assessment of punishment at imprisonment in the penitentiary for a term of five years.

On the part of the State; Mabel Stuart, the prosecutrix, testified that about June 1, 1913, she was employed by defendant as a domestic in his home, and so continued until August 3rd of that year. During the first three weeks of her employment the defendant’s family was absent, and from the first night of her stay in his home, on until she left, he had sexual intercourse with her about each night, this continuing even after the return of his family. She testified that at that time she was not fifteen years old, her statement being that she did not reach that age until the following September. She stated that her information and knowledge relative to her age was obtained from her parents, and an entry in a book which had been treated as a family record. This book was produced and identified by her, but she stated that same had been changed. She was unable, however, to specify or point out any changes that had been made. therein, and finally admitted that she could neither read nor write. Her statement as to her age is not corroborated by any substantial testimony. Over the objections of defendant, she and one Doctor Jones were permitted to state.that she was then, at the time of the trial, pregnant.

The record discloses that the trial was had more than a year after she had arrived at the age of fifteen years, even according to her own statement of her age. She further testified that defendant was responsible for her pregnant condition, and that this was the result of his acts of intercourse with her.

On the part of the defendant the mother of prosecutrix testified that the girl was horn on the 1st day of September, 1897, and that at the time of the alleged acts of intercourse she was over fifteen years .of age. She further testified that she had recorded the age of prosecutrix in the record, to which reference has heretofore been made, and that this correctly disclosed her age.

One Lewis, a neighbor of the Stuart family, testified that he knew the age of the prosecutrix by reason of his knowledge of the date of the birth of one of his own children, and that she was born in the year 1897, and was, as testified to by the mother, over the age of fifteen years at the time of the alleged assault.

An application for a continuance, which was made by defendant, and overruled by the court, sets up that the grandmother of prosecutrix, then sick and unable to attend the trial, would testify that the girl was bom in 1897.

Upon objections by the State, the court refused to admit in evidence the family record which both the prosecutrix and her mother had identified.

The views which wé entertain on certain legal questions presented by this record make unnecessary a more extensive statement of the facts.

OPINION

I. The overshadowing issue in this case was the age of the prosecutrix. In the law it is written that the assaulted girl must be under the age of fifteen years, and establishment of this fact is just as essential to a conviction as is the fact of sexual intercourse, and the same . satisfactory proof thereof is required. Proof of lascivious or reprehensible conduct alone does not make out the charge of statutory rape, and a defendant charged with the latter crime can, as in all criminal cases, take issue with the State cn any of the material and essential elements.

We have heretofore held that, absent an evident motive for a false accusation, a conviction for statutory rape may be sustained upon the uncorroborated testimony of the prosecutrix, but when we so declared we were dealing principally with cases where the question went to the act of sexual intercourse, and we there recognized the commonly known fact that such acts are usually committed under circumstances which render corroborative proof unavailing. In the cases where we have held that corroboration of the prosecutrix’s' testimony as to her age was unnecessary her statements have been clear and positive, and not based upon a hypothesis which defendant showed to he false.

In the instant case the prosecutrix is not only not corroborated, but is contradicted by her mother and others by whom such a fact is generally and most satisfactorily proven. She says her information as to her age comes from her parents and- a family record. The mother repudiates her statements as to the information coming from her, and the court refused to admit in evidence proof of the other source from which she says her information is derived. This was offered by the defendant and excluded upon the State’s objection. The defendant’s offer, however, discloses that it too would have contradicted her. For the present we leave as open the question as to whether, under such circumstances, her uncorroborated and contradicted statement of her age would be sufficient to sustain a conviction.

Upon what theory the court excluded the family record, which had been duly identified, w-e are unable to perceive. The date of the birth of the prosecutrix and of her brothers and sisters had been duly and timely recorded therein, and prosecutrix based her knowledge of her age largely thereon. This document had been prepared and preserved as a family record and was a matter of pedigree. It was competent for three purposes: (1) It was evidence of her true age (State v. Neasby, 188 Mo. 467); (2) it was competent and all important as tending to show that her statement as to her age, based, as she said, upon this record, was false; and (3) it would tend to contradict her statement that the record, which, admittedly for sometime had been in the possession of defendant, had • been changed. If an examination thereof by the jury disclosed no evidence of a change therein, after she had sworn it had been chang’ed, would this not tend to affect her credibility as a witness; and it must be re-, membered that it is upon her testimony alone that this defendant stands convicted. [State v. Shouse, 188 Mo. l. c. 479.] We again repeat what we have, in one form or another, so frequently said, that while corroboration in certain cases may not be legally required, prosecutions on a charge for which there is a human abhorrence must be conducted with scrupulous fairness, so as to avoid adding other prejudice than that which the charge itself frequently produces. The trained legal mind owes this not only to the' accused, but to the honest, and sometimes mistaken, juror who, by reason of human'sentiment, is led amiss.

II. This record discloses another equally grievous error. The trial occurred more than twelve months after the prosecutrix was, according to her own statements, fifteen years of age, and a similar length of time after the acts of intercourse upon wkich State relies were committed. Over the objections of defendant the State was permitted to prove that at the time of the trial, prosecutrix was pregnant. If we indulge the presumption that we are no more ignorant than the rest of mankind, we must judicially notice that the acts of sexual intercourse upon which this prosecution is based, occurred at a time which rendered it physically impossible for this pregnancy to result therefrom, and yet the prosecutrix testified that her pregnant condition was due to her intercourse with defendant. This, of course, was but proof that defendant had intercourse with her subsequent to the acts relied upon, and this court has held, and, in my opinion, properly so, that such evidence is incompetent, and, when introduced, is sufficient to warrant a reversal. [State v. Palmberg, 199 Mo. 233.] Particularly is this true when the subsequent acts are as remote in time as this record discloses. [State v. Evans, 138 Mo. 116; State v. Scott, 172 Mo. l. c. 541.]

III. Complaint is also made that error was committed in overruling defendant’s application for a continuance. While we probably would not reverse the judgment for this, reason alone, we are 0£ opinion that, under the peculiar circumstances of this case, the State should not have insisted, and the court should not have ordered, that the trial proceed in the face of this application, it seemingly possessing real merit.

IV. The objection that State’s counsel was guilty of improper conduct in resorting to unwarranted argument is not open to review, since no such matters are preserved in the bill of exceptions.

For the errors heretofore pointed out the judgment is reversed and the cause remanded.

Paris, P. J., and Walker, J., concur.