author: FOX, J.

text:
    THE STATE v. RICHARDSON, Appellant.
    Division Two,
    March 6, 1906.
    1. INDICTMENT: First Degree Murder. The indictment in this case, set out in the statement, is held to properly charge the crime of murder in the first degree.
    2. CONTINUANCE: Absent Witnesses: Defective Application: Discretion. The granting or denying of an application for a continuance is a matter resting largely in the discretion of the trial court. And where the subpoena for witnesses alleged by defendant to be absent was not issued until two days before the day set for the trial, one of the intervening days being Sunday, and, in addition to this, the application fails to state that the facts expected to be proved by such absent witnesses are true, the trial court did not abuse its discretion in overruling the application.
    3. QUASHING PANEL: Motion for New Trial: Waiver. A motion to quash the panel of jurors, which is overruled, if not called to the attention of the trial court in the motion for new trial, is waived, and is not subject to review by the appellate court.
    4. CHANGE OF VENUE: No Affidavit. Where an application for a change of venue is not supported by the affidavit of at least two credible, disinterested witnesses, in addition to the affidavit of defendant, the application is properly denied.
    5. JUROR: Misconduct: New Trial. A motion for new trial on the ground of the alleged misconduct of a juror is properly overruled, when it is not supported by the affidavit of defendant and his attorney, and it does not affirmatively appear that the defendant did not know of such alleged misconduct before the jury retired to consider their verdict.
    6. EVIDENCE: Of Wife Against Husband: Admission: Defendant Under Arrest. Over the objection and exception of defendant, a witness for the State was permitted to testify that he went to the jail to see defendant and his (defendant’s) wife, both of whom were confined on the charge of murder; that “Mrs. Richardson (defendant’s wife) said she saw them (deceased and another) coming towards the gate out there and her husband went there; as they got there they got in a quarrel, and she said her husband said he wanted to shoot; she said she didn’t want him to shoot, she begged him not to shoot, and Mr. Richardson said that’s not right, and Schade (the jailer) said he could not talk more in jail; nothing more was said.” Held, first, that this testimony was not admissible as a silent admission by defendant, because, according to the witness, he expressly denied its correctness; second, it was not admissible as an admission against defendant’s wife, • for it was in her favor; third, defendant’s wife being incompetent to testify as a witness against him, her declarations to a third party, as to what her husband said, were also inadmissible. Held, further, that it is questionable whether this evidence was admissible, even if defendant had remained silent at the time the statement was made by his wife, for the reason that he was then in the custody of the sheiiff and jailer, and was not in a position to speak.
    7. REPUTATION OF DEFENDANT: For Peace and Quiet: Not in Issue. Where defendant has not put his reputation for peace and quiet in issue, the State can not assail his character by proving his reputation as a quarrelsome and turbulent man, since such reputation does not affect his credibility as a witness, but goes only to his character as a defendant.
    8. DEGREES OF HOMICIDE: Defendant’s Testimony: Instructions. Instructions should be given on whatever degrees of homicide defendant’s testimony may show, notwithstanding, in view of the other evidence, his statements as to the homicide may seem inconsistent and unreasonable.
    Appeal from Cape Girardeau Circuit Court. — No». Henry G. Biley, Judge.
    Reversed and remanded.

      Orren Wilson for appellant.
    (1) The court erred in overruling defendant’s ■application for a continuance. (2) The court erred in overruling defendant’s application for a change of venue. (3) The cohrt should have given the instruction on justifiable homicide in the fourth degree. R. ■S. 1899, sec. 1833.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The indictment is sufficient; it contains every element necessary to charge defendant with murder in the first degree. State v. Bailey, 88 S. W. 735; State v. Turlington, 102 Mo. 647. (2) No error was committed by the court in overruling defendant’s application for a continuance. State v. Williams, 170 Mo. 204; State v. Cummings, 88 S. W. 706; State v. Dusenberry, 112 Mo. 291; State v. Kindred, 148 Mo. 281. The affidavit fails to state that the facts he expected to, prove by said absent witnesses are true; this is fatal. State, v. Alfred, 115 Mo. 471; State v. Cummings, 88 S. W. 706; R. S. 1899, sec. 2600. (3) The motion to quash the panel of jurors, for the reason that the same was not se- • lected from the entire county, was properly denied. State v. Brennan, 164 Mo. 487; State v. Fraker, 137 Mo. 258. No mention of this alleged error is made in the motion for a new trial, hence the same has been waived. State v. Bell, 166 Mo. 109. (4) Defendant’s application for a change of venue was properly overruled. It was not in the proper form, and was not supported by the affidavit of two creditable, disinterested citizens of the . county, as required by the statute. The reason for such failure, as given by defendant, did not entitle him to a change of venue. State v. Turlington, 102 Mo. 648; State v. Brownfield, 83 Mo. 448; R. S. 1899, sec. 2576. (5) As both defendant and his wife were charged with murder, and were tried jointly, it was proper to admit in evidence statements made by either one, as evidence against that one, because both were on trial. The weight to be given to said admissions should be, and in this instance were, governed by instructions. State v. Tolbert, 73 Mo. 359.
   FOX, J.

This cause is here upon appeal by the defendant from a judgment of the circuit court of Cape Girardeau county, Missouri, convicting him of murder of the first degree. The indictment upon which defendant was tried was returned by the grand jury on January, 2, 1905, charging James Richardson and Phoebe Richardson, his wife, with murder in the first degree. Omitting formal parts, the offense was thus charged:

“The grand jurors of the State of Missouri, duly empaneled, sworn and charged to inquire within and for the county of Cape Girardeau, State aforesaid, on their oaths present and charge, that James Richardson at the said county and State, on or about the 22d day of August, A. D., 1904, in and upon one Wm. Bleckwendt, then and there being willfully, feloniously, on purpose, deliberately, premeditatedly and of his malice aforethought did make an assault, and with a dangerous and deadly weapon, to-wit, a shotgun, then and there charged and loaded with gunpowder and lead shot which he, the said James Richardson, in his hands then and there had and held, then and there willfully, deliberately, on purpose, premeditatedly and of his malice aforethought, feloniously, did discharge and shoot off, at, to and against the body of him, the said Wm. Bleckwendt, and with the shotgun aforesaid, and the leaden shot ■aforesaid, then and there feloniously and on purpose and of his malice aforethought, willfully, deliberately and premeditatedly, did shoot, strike, penetrate and wound him, the said Wm. Bleckwendt, in and upon the back and body of him, the said Wm. Bleckwendt, giving him, the said William Bleckwendt, then and there with the dangerous and deadly weapon, the shotgun aforesaid, and the gunpowder and the leaden balls aforesaid, so as aforesaid shot out of the shotgun aforesaid, by the force of the gunpowder aforesaid, in and upon the back and body of him, the said William Bleckwendt, divers wounds and one mortal wound of the breadth of one quarter of an inch, and the depth of three inches, of which said mortal wound the said William Bleckwendt then and there did die.

“And the grand jurors aforesaid, upon their oath aforesaid, do further find, present and charge that Phoebe Richardson, before the said felony and murder was committed in the manner and form aforesaid, and by the means aforesaid, at the time and place aforesaid, and also at the time did then and there willfully, deliberately, premeditatedly and of her malice aforethought, feloniously, incite, move, procure and aid with said shotgun and with a deadly weapon, to-wit, a large club, and counsel, hire and command him, the said James Richardson, to do and commit the said murder aforesaid, in the manner and form aforesaid, and by the means aforesaid at the time and place aforesaid, to do and commit; and so the grand jurors aforesaid, upon their oaths aforesaid, do say that James Richardson and Phoebe Richardson, him, the said William Bleckwendt, at the time and place aforesaid, in the manner and by the means aforesaid, feloniously, on purpose, willfully, deliberately, premeditatedly, and of their malice aforethought, did kill and murder, contrary to law and against the peace and dignity of the State.”

At the May term, 1905, of the circuit court of said county the defendant, James Richardson, and his wife, Phoebe Richardson, were jointly tried for the commission of the offense charged in the indictment. Defendant’s wife, Phoebe Richardson, was acquitted and he was convicted.

Upon the trial of this cause the evidence introduced by the State tended to prove that the defendants, James Richardson and Phoebe Richardson, were, husband and wife, and lived in a house about 150 yards from the place of the fatal difficulty. That Seehausen, Mortensen, May and Meyestedt visited the home of Mary LeG-rand on August 21, 1904, and took some beer with them. This home was a house-boat, situated on a slough of Sloan’s creek in a meadow in Dannybrook, a suburb of the city of Cape Girardeau, and was.about 100 yards from the public road. It was practically admit-led that Mary LeGrand was a woman of had repute, she having been married, but living part from her husband, and that' she kept a bawdy house and that deceased was a frequent visitor at the house. After remaining at this shanty boat for sometime, variously estimated at from half an hour to two hours, the deceased came, and the other men left, three of them going in the direction of a spring wagon. After reaching this wagon the three ■drove to a gate, which opened into a public road, a gravel road; this was about midnight. This road ran north and south, and separated the land of defendant from that owned by Mrs. Sullivan, defendant’s being ■on the west and Mrs. Sullivan’s on the east of said road. This house-boat was situated on the bank of the creek ■on Mrs. Sullivan’s land. The deceased and the LeGrand woman walked along with the men in the wagon for the purpose of opening and shutting the gate. As the three men drove off in the spring wagon, they met a man and woman on the road coming from the direction of the ■defendant’s house, and going towards this gate. It was a bright moonlight night, and all the witnesses seem to have had no trouble in recognizing persons, even at some distance. After driving up the road a little ways, these three men heard the report of a gun, and one of them returned and found deceased suffering from the ■effects of a number of wounds in the back. The only eye-witnesses to the shooting were the LeGrand woman and both of the defendants. After the three men drove •off in the spring wagon, the LeGrand woman testified, she and the deceased heard someone coming down the road, looked up and recognized the defendant walking rapidly towards them. As defendant neared the gate, he called out, “Hi, you God damn sons of bitches, you want to leave our cows alone.” Mrs. Eichardson, who was then by the side of her husband, came up to the gate and said, “0, you God damn old whore, we are going to kill you.” Mrs. Eichardson then began striking deceased on the arm with a board and saying to- her husband, “Shoot them, shoot them sons-of-bitehes.” At that time deceased and the LeGrand woman were inside the gate on the Snllivan ground, deceased near the gate and the LeGrand woman some eighteen feet away. Deceased and the LeGrand woman turned and started to walk off and leave the Richardsons, deceased saying, ‘ ‘ They would not hurt us.” A shot was then fired by defendant, James Richardson, and deceased instantly cried out, “0, my God, I am shot.” The LeGrand woman helped deceased walk to the house-boat, when he sank down. Some of the neighbors came in, and Mr. Taylor and the LeGrand woman ran for a physician. One of the neighbors, Mrs. Eva Doll, who lived near by, testified that she heard Mrs. Richardson say, ‘ ‘ 0, God damn your dirty souls, I have got you now and I am going to murder you.” Then she heard one shot, and deceased cried out, “0, my God, I am shot, I am dying.” Deputy sheriff Grieb, who was also chief of police of Cape Girardeau, on learning that a man had been shot, started in a hack'in company with Dr. Patton. On the way they met the LeGrand woman, who wanted them to hurry, as the man was about to die. Dr. Patton testified that he examined the deceased shortly after the shooting and found him suffering from a gun shot wound in the back, and that the whole of his back was perforated with small buck shot. That the deceased was carried out of the boat towards the hack, but that he died in thirty minutes; that the wounds were mortal. This physician and the undertaker testified that all of the buckshot took effect in the back of the deceased, and entered at points ranging from the back of the neck down to the waist line. They also testified to the bruises on the arm of the deceased, which bruises were inflicted before his death, in their judgment. After the shooting, officer Grieb and policeman Blank went to defendant’s home, reaching there about half past one o’clock. James Richardson was in bed, and Mrs. Richardson came to the front door. She told the officers that defendant was sick in bed and conld not see them, and insisted on them not coming in. In fact, she stood in the door and said that no one conld come in without a row. After considerable trouble and some threats, the officers succeeded in passing Mrs. Richardson and arrested her husband. ■ They asked for the gun, but Mrs. Richardson said that there was no gun in the house. The next morning the officers returned and found the gun in the house, in a corner behind the safe or wardrobe. The gun was a double-barreled one, and the right barrel showed that it had recently been discharged but had been reloaded. After the gun was found in her house, Mrs. Richardson stated to the officers that her husband had killed a milk thief, and now they had taken him to jail. Afterwards during the day, Mrs. Richardson said to some persons near the place of shooting, ‘ ‘ God damn him, that is what he gets for fooling with other people’s cows.” After she was placed in jail, Mrs. Richardson stated to Albert Sheute, in the presence of her husband, that her husband went down to the gate to shoot deceased, and she she begged him not to shoot him.

Mrs. Richardson did not testify; but defendant James Richardson did. In behalf of said defendant, the evidence tended to show that he had a little place in the surburbs of Cape Girardeau, owned a few cows and sold milk. That there was an unfriendly feeling existing between him and the LeGrand woman, he having made complaint charging her with running a bawdy house, to which she entered a plea of guilty. That defendant had some trouble with some people bothering his stock and milking his cows. That Mary LeGrand frequently visited his place at night and milked his cows. That on the night of this difficulty, defendant’s dog awakened him by barking and chasing someone out of the milk lot. When he got up he saw the LeGrand woman and some one else milking defendant’s Jersey cow. That these persons soon got up and left the milk lot; and defendant dressed himself and went down the road and Ms wife followed Mm. On aproaching the LeGrand woman and the deceased, defendant said, “You want to go away and leave my dog and cows alone. ’ ’ Defendant admitted that he and his wife were in the road, and deceased and the LeGrand woman were not in the road,, bnt were inside of the Sullivan enclosure. That when his (defendant’s) wife got up to the gate, deceased tried to grab a board, but defendant’s wife grabbed it. That deceased reached down and struck at them with a razor and tried to cut defendant’s wife. That defendant then raised his gun, and the gun went off. Defendant admitted that he saw deceased and the LeGrand woman before he left his house, and also that he loaded his double-barreled shotgun and went after them. He further testified that the LeGrand woman stood a short distance away with a revolver in one hand and a tin bucket in the other; and that the bucket had about one gallon of milk in it. Defendant denied that any one used a board that night, but said that they tried to use it. Defendant offered, and the trial court admitted,, in evidence the record of the police court of Cape Girardeau, showing the conviction of the LeGrand woman on a charge of running a bawdy house1.

In rebuttal, the State proved by Meyestedt and others that they had only driven a very short distance from deceased and the LeGrand woman before they heard the gun fire; that in their opinion only about thirty seconds had elapsed.

At the conclusion of the evidence the court instructed the jury upon murder in the first and second degree, self-defense, reasonable doubt, etc. The cause was submitted to the jury upon the. evidence and instructions of the court and they returned a verdict finding the de- . fendant guilty of murder in the first degree as charged in the indictment, also a verdict finding the defendant, Phoebe Richardson, wife of the defendant, not guilty.

The instructions of the court will be given due consideration in the course of the opinion.

Motions for new trial and in arrest of judgment were filed and by the court overruled, and judgment and sentence was rendered against the defendant in accordance with the verdict returned by the jury. Prom this judgment the cause is brought here by appeal and the record is now before us for consideration.

OPINION.

The record in this cause discloses many complaints by appellant at the action of the trial court as a basis for the reversal of this judgment. At the very inception of the consideration of this very important cause it is not inappropriate to say that many of the assignments of error are absolutely without merit, and many others are assigned which are not properly preservedhy the record as to render them subject to review upon this appeal. The serious results flowing from the enforcement of this judgment, should it be affirmed, have lead us to carefully scrutinize every detail of this record, and we will give the questions presented in it such attention and consideration as their importance require and merit.

I. The indictment in this cause properly charged the offense in such terms as have repeatedly met the approval of this court, and there was no error in the action of the court overruling defendant’s motion to quash such indictment.

II. There was no error committed by the court in overruling defendant’s application for a continuance. The granting or denying of an application for a continuance, as has often been ruled by this court, is a matter resting largely in the discretion of the trial court, and it is only where it is manifest that such discretion has been abused and not rightfully or judicially exercised that this court will interfere with the action of the trial eourt upon that subject. It is apparent from the disclosures of the record, as to the grounds alleged for such, continuance, that there was in no way any abuse of a proper judicial discretion. The record discloses that the subpoena was not issued for the witnesses claimed to be absent until two days before the day set for the trial, and one of the intervening days was Sunday. Emphasizing the correctness of the action of the trial court in denying the application for a continuance, it may be further stated that the affiant did not conform to the essential requisites of the statute, in this, that he failed to state that the facts he expected to prove by such absent witnesses were true. [State v. Alred, 115 Mo. 471; State v. Cummings, 189 Mo. 626; R. S. 1899; sec. 2600.]

III. Defendant filed a motion to quash the panel of jurors returned by the sheriff to try his cause, assigning as reasons for such motion that the jurors were not selected from the entire county. This motion was by the court overruled, and it is upon this action of the court that appellant insists there was reversible error committed in the trial of this cause. It is sufficient to say of ■ this ground of complaint that it is nowhere called to the attention of the trial court in the motion for new trial, and therefore must be treated as having been waived, and is not subject to review by this court.

IY. Appellant complains at the action of the court in denying his application for a change of venue. It is only necessary to say upon this proposition that the record discloses an entire failure to conform to the requirements of the statute in respect to such applications. Section 2576, Revised Statutes 1899, requires that the petition of the applicant shall be supported by the affidavit of the petitioner and the affidavit of at least two credible, disinterested citizens of the county wherein such cause is pending. While the petition in this cause indicates that the applicants supported the petition by their affidavits, yet the record discloses an entire absence of any supporting affidavit by other witnesses as is required by the statute. This was fatal to the application. [State v. Turlington, 102 Mo. l. c. 653; State v. Brownfield, 83 Mo. 448.]

V. Complaint is urged upon the ground of the misconduct of juror .Hinton, one of the panel who was selected to try this cause. The evidence upon the subject of his misconduct shows that he was a merchant and that his clerk brought him two letters and gave them to him in the presence of the sheriff; that one of these letters contained a check or draft from a bank-and the other letter was from the Elks’ lodge and simply had reference to some of the members that were to be initiated. This alleged misconduct was simply called to the attention of the trial court in the motion for a new trial and such motion was neither accompanied by the affidavit of defendant nor of the defendant’s attorney. It is nowhere made to appear at what time this alleged misconduct of the juror came to the knowledge of the •defendant or his counsel.

It was expressly ruled in State v. Robinson, 117 Mo. 666, that where misbehavior of a juror is charged as having occurred during the trial, it must affirmatively appear that the party complaining thereof did not know of the fact before the jury retired to consider of their verdict, and it was said in that case that this material fact not being disclosed in the affidavit filed, the statement of it in the motion for new trial is no evidence of its existence. If the complaining party knew during the trial of such misbehavior it was his duty to call the immediate attention of the court to it and not take his chances on a reversal based on such ground. [State v. Robinson, 117 Mo. l. c. 666; 12 Ency. Plead. & Prac., 558; State v. Barrington, not yet reported.]

It was said in discussing a complaint similar to this one, as to the misconduct of a juror, in State v. Hunt, 141 Mo. l. c. 637, that, “Moreover the motion, for a new trial upon the ground suggested in the proposed amendment and in the supplemental motion, was not supported by the affidavit of the defendant, which was absolutely essential. It must have been supported by both the affidavit of the defendant and his counsel; nothing less will answer the behests of the law. [State v. Howard, 118 Mo. 127; State v. Burns, 85 Mo. 47.]”

With the disclosures of the record as our guide, there was no error in overruling the motion for new trial on this ground.

VI. This leads us to the consideration of the most serious ground for a reversal of this judgment and sentence disclosed by the record, that is, the admission of incompetent and improper testimony against the defendant. The record discloses that Albert Sheute was introduced by the State and he testified that he and his wife were in the town of Jackson where the defendant, James Richardson, and his wife, Phoebe Richardson, were confined in jail, and this witness testified that he and his wife wanted to see them. They went over to the jail and this witness states, in answer to a question, that£ £ Mrs. Richardson said' she saw them coming towards the gate out there and her husband went there; as they got there they got in a quarrel, and said her husband said he wanted to shoot; she said she didn’t want him to shoot, she begged him not to shoot (and Mr. Richardson said that’s not right, and Schade said could not talk more in jail, nothing more was said).” The following further inquiry was made of this witness by the State as to what Mrs. Richardson said:

Q. You speak in such an undertone I do not understand you, and I do not think the jury do-. What did she say — that who wanted to shoot? A. Mr. Richardson wanted to shoot, she said not to shoot.

Q. Shoot who? A. Well, that fellow Will Bleckwendt.

Q. Now let me see if I understand you right. Mrs. Richardson said that her husband wanted to shoot Bleckwendt, and she did not want Mm to do it? A. Yes, sir.

Court: Let the witness state.

Mr. Danes: If I cannot hear I want to know what he says.

Court: I think the jury heard it. It is not necessary to repeat it.

Q. What did Mr. Richardson say? A. He says , let him tell it, it was not right, and Mr. Schade said could not have more talk in jail, not to say any more, and that was all said.

We are unable to conceive upon what theory this testimony was admissible. It was not admissible on* the ground of a silent admission by reason of the statement of Mrs. Richardson in his presence, for the reason that the witness who detailed the conversation says that this defendant said that the statement was not right, and wanted to make it himself, and Mr. Schade, who evidently was the officer in charge, would not permit any more talking between them. It was not admissible simply as an admission against Mrs. Richardson, for the statement was in her favor; she expressly said that he did not want him to shoot, and it will further be oberved that the court, in admitting this testimony, did not, either by suggestion, or otherwise, limit its application to her.. That this testimony was damaging and injurious to only one of these defendants, and that was the defendant who was convicted, is too' clear for discussion. This testimony was directed solely against the defendant James Richardson, and no one else, and was inadmissible for two reasons: First, because the defendant said at the time that the statement was not right, and therefore there could be no acquiescence or assent to it; secondly, Mrs. Richardson, who was making the statement against this defendant, was his wife. She was incompetent as a witness to testify to such statement so made, and it necessarily follows that if she could not make the statement as a witness she could not make it to a third party, and have him repeat it and thereby violate one of the fundamental rules of evidence applicable to the competency of witnesses, that is, that it is incompetent for the wife to give evidence against the husband, except in the ease where she is the immediate prosecutrix for some injury threatened or done to her person. In State v. Arnold, 55 Mo. l. c. 91, Wagner, Judge, speaking for this court, thus clearly announced the rule. He said: “Nothing is clear-re than that it is incompetent for the wife to give evidence against the husband except in the case where she is the immediate prosecutrix for some injury threatened or done to her person. If she herself is not a competent witness, it follows, that her declarations as to what her husband said must also be inadmissible.”

To this testimony the record discloses a timely objection and exception. We can see no difference in the admission of this testimony in the form of statements made by Mrs. Richardson to witness Sheute'and in introducing Mrs. Richardson herself as a witness to testify against the defendant, which it must be conceded would have been manifestly improper and erroneous. It is clear that the jury could have only considered this' testimony as against the defendant James Richardson, for it had no application to anyone else. It will be observed from the record in this cause that the court very properly excluded, as against this defendant, James Richardson, all statements made by his wife not in his presence, and the record discloses that this is the only statement made by Mrs. Richardson in the presence of the defendant.

Emphasizing the error in admitting this statement, the court, by instruction No. 7, practically left it to the jury to determine whether or not this statement was assented to or acquiesced in by the defendant. The jury are told in that instruction that what Mrs. Richardson said cannot be used against the other defendant, James Richardson, unless assented to or acquiesced in by him. That amounted to nothing more nor less (notwithstanding this defendant, James Eichardson, said in the presence of the witness who testified to the statement of Mrs. Eichardson, that her statement was not right), than saying to the jury, “You must determine from the surrounding circumstances whether he assented to or acquiesced in such statement.” It is a very questionable legal proposition, even if the defendant, at the time this statement was made, had remained silent, as .to whether or not it was admissible against him, for the reason that he was then in the custody of the sheriff and jailor and and was not in a position to speak.

It was ruled in the case of State v. Young, 99 Mo. l. c. 674, that a defendant who was under arrest was in no position to make any denial as to what might be said by others in his presence, and that his silence'under such circumstances would not warrant any inference against-him. [Wharton’s Crim. Ev., see. 680; Com. v. Walker, 13 Allen 570; U. S. v. Brown, 4 Cranch (C. C.) 508; Com. v. Kenney, 12 Metc. 235; Rex v. Appleby, 3 Starkie 33; Bob v. State, 32 Ala. 560.] To the same effect is case of State v. Foley, 144 Mo. l. c. 618, where this court approved the ruling in the Young case, and, in discussing this proposition, said: “Of course, there are cases in which silence of a party suspected of crime is evidence against him, but to give such silence the effect of an admission the party must be in a position to explain and it is the settled law of this State that a defendant’s silence when charges are judicially made against him or he is under arrest can not be shown against him.”

In view of the well-settled law upon this subject we see no escape from the conclusion that the admission of Mrs. Eichardson’s statement at the jail to witness Scheute, which amounted to nothing more nor less than permitting her to testify against her husband, must be held error for which the judgment must be reversed and cause remanded.

As this cause must be retried, we deem it not inappropriate to suggest another error committed in the trial of it, which, if it had been duly preserved by timely objections and exceptions, would be sufficient to reverse the judgment. That was this: Before the defendant attempted to offer any testimony as to his good reputation for peace and quiet the court permitted counsel for the State to inquire of the witness Fred Kraft if he knew of James Richardson, the defendant, having shot at any other person there in Cape Girardeau; upon the witness answering, “No sir, none that I know of,” the additional inquiry was permitted: “Did you ever hear of it?” and the witness answered, “Well, yes, sir, I have heard them talking about it. ’ ’ This testimony was clearly incompetent and upon timely objections doubtless would have been excluded, but as there were no objections made to it we cannot base our action in the reversal of this judgment upon that ground. The additional inquiry was made of this witness as to whether or not he knew the general reputation among the neighbors and friends of the defendant, for being a violent, quarrelsome and turbulent man. The answer was in the affirmative, stating that, “it seems like he was quarrelsome and could not get along with anybody. ’ ’ Then followed the additional question as to his being a dangerous man. This was answered by relating a conversation between the witness and Mr. Blank about hauling through a pasture, and finally a threat by the defendant against Blank. This testimony was not admissible. The defendant had not put in issue his reputation for peace and quiet, and while the defendant had testified as a witness, his general reputation as a dangerous and turbulent man is not admissible for the purpose of affecting his credibility.

It will be noted that the law, as applicable to the general reputation of a defendant or a witness, affecting their credibility, makes a distinction between general moral character and general reputation for being a quarrelsome and dangerous man. The former may affect his credibility as a witness, the latter does not. In' other words, general moral depravity has a tendency to affect the credibility of a witness; but, on the other hand, a man may have the reputation of being quarrelsome and dangerous, and still be a truthful man. The law as now settled may thus be briefly stated as applicable to the subject in hand: If the defendant offers himself as a witness, the State, for the purpose of affecting his credibility, even though he has offered no testimony upon his general reputation, may offer in evidence testimony showing his general reputation, either for truth and veracity,- or for general immorality. But, if the defendant does not first put his general reputation for peace and quiet in issue, by offering some testimony on that subject, the State is not permitted to offer testimony of his general reputation as being a turbulent, quarrelsome or dangerous man,- for the purpose of affecting his credibility. But, on the other hand, if the defendant puts his reputation for peace and quiet in issue by offering testimony along that line, then, of course, the State has the right to rebut such showing by offering testimony showing his general reputation as a turbulent, quarrelsome and dangerous man.

In State v. Nelson, 101 Mo. l. c. 468, a witness by the name of Ferrill had testified for the State and the defendant offered testimony tending to show that he had the reputation of being a rash, dangerous and turbulent man when in liquor. This testimony was excluded by the trial court, and on this point, Judge Black, speaking for the whole court, said: “Nor was there, any error in excluding evidence offered by the defendant to show that Ferrill, one of the witnesses for the State, had the reputation of being a rash, dangerous and turbulent man when in liquor. We do not see for whát purpose this evidence was offered, unless it was to discredit the evidence given by Ferrill, and it was certainly not competent for that purpose. ’ ’

At the present sitting of this court, in the case of State v. Beckner, ante, p. 281, this question is fully and most thoroughly treated in an opinion by Judge Gantt. All of the authorities in this State, as well as in other jurisdictions, are fully reviewed, and the conclusion is finally announced that the general reputation of a defendant or a witness for being a violent, turbulent and dangerous man does not in any way cast any light on or affect his credibility, and it was ruled in that case that the defendant not having offered any testimony as to his reputation for peace and quiet, it was reversible error for the State to introduce testimony as to his reputation for being a violent, dangerous and turbulent man. However, it is unnecessary to pursue this subject further; it is merely a suggestion which maybe observed in the trial of this cause. There was no objection or exception to the introduction of this testimony; therefore, it is not subject to reveiw by this court for the purpose of basing any affirmative action upon it; and we do not wish appellant’s counsel to understand that we are treating of this error even though no objections .or exceptions are preserved in the record, for it is certain that if the fate of this defendant rested upon these suggestions of errors without any objections or exceptions having been preserved, they would be of no avail.

Upon the subject of instructions, it is sufficient to suggest that, upon the retrial of this cause, whatever grades of the crime the defendant’s testimony may tend to prove should be covered by appropriate instructions based upon his testimony. It may be that Iris testimony, in view of the testimony on the part of the State; may not be true; however, he is entitled to instructions presenting the grades of crime to which his testimony is applicable. We, of course, cannot foreshadow what the testimony will be in the retrial of this cause; however, we take it that in the event that the defendant testifies that there was a personal encounter between the deceased and the defendant’s wife, and further testifies that he simply started to raise the gun with a view of cheeking such violence to his wife, and that ihe gun fired before he got it to his shoulder, and that he did not intend to fire the shot, notwithstanding, in view of the other testimony in the cause, the statements may seem unreasonable and inconsistent, yet.the court will instruct upon that grade of manslaughter to which such testimony is applicable.

We have thus given expression to our views upon the questions presented by the record. The penalty oC this judgment can only he justified and enforced by a trial that is absolutely free from any substantial error. We have indicated the errors during the progress of the trial, for which the judgment in this cause should be reversed. Nothing remains to he said except to announce the conclusion, that for the error herein pointed out, the judgment should he reversed and the cause remanded for a new trial, and it is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    THE STATE, Appellant, v. STEWART.
    Division Two,
    March 6, 1906.
    1. BIGAMY:. Marriage Outside State: Statute Constitutional. The statute (sec. 2169, R. S. 1899), punishing the continued cohabitation in this State under a bigamous and criminal marriage contracted without the State, which would be punishable in this State if contracted or solemnized within this State, is leveled at an offense against public immorality committed in this State, and is a valid and constitutional statute.
    2. -: -: -: Not Denominated a Felony. The fact that the statute denominates the offense “bigamy” instead of a “felony” does not affect its constitutionality. It was not unconstitutional for the General Assembly to define continued cohabitation under a bigamous marriage as bigamy.

      3. -: -: -: Continued Cohabitation. The crime is not complete because the bigamous marriage is contracted or solemnized in another State. The purpose of the statute is not to punish the offender for the void marriage, but it punishes him for a continuation in this State of cohabitation begun under a void marriage in another State.
    4. -: -: -: Sufficiency of Indictment: Adultery. An indictment which alleges that at the time of the second marriage in Illinois the defendant had a lawful wife living, naming her, that avers the unlawful second marriage in Illinois and charges that from a certain date to a certain date defendant did unlawfully and feloniously, in the the county where the indictment is found, abide and cohabit with the said second wife, is sufficient under the statute, and there is no merit in the claim that it simply charges adultery.
    Appeal from St. Louis City Circuit Court. — -No». G. Orrick Bishop, Judge.
    Reversed and remanded.

      Herbert 8. Hadley, Attorney-General, N. T. Gentry, Assistant Attorney-General, and Grant Gillespie for the State.
    Under section 2169, Revised Statutes 1899, it is the cohabitation within this State which constitutes the crime, if the second marriage was solemnized in another State, when one of the parties thereto had a husband or wife living, in any case where such second marriage would be punishable if contracted or solemnized within this State. The question then arises whether or not the Legislature has the power, in the protection of public morals, to punish a person for cohabiting with a bigamous wife or husband within this State, where the second marriage was solemnized beyond its jurisdiction. There is no doubt of the power of the Legislature, or of municipalities deriving their power from the Legislature, to make police regulations designed to promote the health and morals of the community. Laws to prohibit or regulate gambling, sales of intoxicating liquors, houses of prostitution, and thus indirectly advance the morals and good order of society, are beyond question. St. Louis v. Fitz, 53 Mo. 582; State v. Whittaker, 160 Mo. 59; State v. Layton, 160 Mo. 474; State v. Thompson, 160 Mo. 333; State ex rel. v. Ashbrook, 154 Mo. 375. While the State cannot under the guise of the police power overthrow rights which the Constitution guarantees, yet the Legislature may do many things in the legitimate exercise of this power which, however injudicious they may seem, are not obnoxious to the objection of being beyond the scope of legislative action. State v. Addington, 77 Mo. 110. Section 2169 does not conflict with any express provision of the Constitution; unless it does, this court will not declare it void. St. Louis County Court v. Griswold, 58 Mo. 175; Phillips v. Railroad, 86 Mo. 540; Railroad v. Shambaugh, 106 Mo. 557; Deal v. Mississippi Co., 107 Mo. 464; State ex rel. v. Wofford, 121 Mo. 61; State ex rel. v. Yancy, 123 Mo. 391. No legislative enactment should be declared unconstitutional unless clearly so, and every reasonable intendment should be made to sustain it. State v. Hope, 100 Mo. 347; State ex rel. v. Jackson .Co., 102 Mo. 531; State ex rel. v. Simmons Hdw. Co., 109' Mo. 118; Wells v. Railroad, 110 Mo. 286; Murnane v. St. Louis, 123 Mo. 479; State ex rel. v. Aloe, 152 Mo. 466. The burden is upon him who alleges that the act is unconstitutional to prove it beyond a reasonable doubt. State ex rel. v. Ransom, 73 Mo. 78; State ex rel. v. Laughlin, 75 Mo. 147; State v. Addington, 77 Mo. 110. When the courts are called upon to decide that an act of the Legislature violates the organic law, they begin with every presumption in favor of the validity of the statute. State v. Layton, 160 Mo. 474. The Federal Constitution has not shorn the States of their police power to prohibit or regulate unwholesome trades and occupations or to protect public morals. St. Louis v. Fischer, 167 Mo. 654.

      Jas. M. Rollins for respondent.
   GANTT, J.

At the June term, 1905, the grand jury of the city of St. Louis returned an indictment against the defendant, charging him with the violation of section 2169, Revised Statutes 1899. On July 20, 1905, the day prior to the one on which the case was set. for trial, defendant filed a motion to quash the indictment, alleging, among other things, that said section of the statute, upon which the indictment was based, was unconstitutional. The motion to quash was sustained by the trial court, and the State tendered a hill of exceptions which was signed and filed, and an appeal taken by the State.

The indictment is in the following words:

‘ ‘ State of Missouri “City of St. Louis,

“Circuit Court, City of St. Louis, June term, 1905.

“The grand jurors of the State of Missouri, within and for the body of the city of St. Louis, now here in court, duly impaneled, sworn and charged, upon their oath present, that James W. Stuart, alias George W. Stewart,-on the fifteenth day of December one thousand nine hundred and three, in the county of Alexander, in the State of Illinois, unlawfully and feloniously did marry and take to wife one Wilmer Jones, and to her, the said Wilmer Jones, then and there was married, without the State of Missouri, he, the said James W. Stuart, alias George W. Stewart, then and there still having a lawful wife living, to-wit, Loney Wells Stuart; and that the said James W. Stuart, alias George W. Stewart, afterwards, to-wit, on the sixteenth day of December, one thousand nine hundred and three, within the State of Missouri, to-wit, in the city of St. Louis aforesaid, and from that day until the eighteenth day of May, one thousand nine hundred and five, unlawfully and feloniously did abide and cohabit with the said Wilmer Jones and her, the said Wilmer Jones have to wife, the said former and lawful wife, the said Loney Wells Stuart, being then and there still alive; against the peace and dignity of the State.

“Rich. M. Johnson,

Assistant Circuit Attorney.

“A true Bill

“F. P. Crunden, Foreman.”

The motion to quash, omitting caption, was as follows:

“Now on this day comes the defendant, by his attorney, and moves the court to quash the indictment herein for the reasons following:

“1. Because the indictment charges no offense under the laws of the State of Missouri.

“2. Because on the face of the indictment this court nor any other court in the State of Missouri has jurisdiction to inquire into nor to try this defendant; it being apparent and charged in the indictment that the alleged bigamous marriage took place in another county and State.

“3. Because the charge contained in the said indictment is indefinite, uncertain and vague, and does not fully apprise defendant of the offense wherewith he is charged.

“4. Because of other reasons and matters apparent upon the face of the record. ’ ’

I. Section 2169, Revised Statutes 1899, is in these words:

‘ ‘ Cohabiting in this State bigamy, when: Every person, having a husband or wife living, who shall marry another person, without this State, in any case where such marriage would be punishable if contracted or solemnized within this State, and shall afterwards cohabit with such person within this State, shall be adjudged guilty of bigamy, and punished in the same manner as if such marriage had taken place within this State.”

By reference to the foregoing statement, it will be noted that the indictment in this cause is predicated on a violation of said section, and was quashed on motion by the circuit court of the city of St. Louis. We are not advised upon what ground the indictment was set aside, but the argument in this court on both sides was directed principally to the constitutionality of the section and to that question we will first address ourselves.

With the right of a sovereign State in the protection of the morals of its own citizenship to make crimes committed elsewhere punishable in her own courts, if the guilty offender shall come within her jurisdiction, we are not concerned in this case. The statute is leveled at an offense against public immorality committed in this State, to-wit, the continued cohabitation in this State under a bigamous and criminal marriage contracted without the State, which would be punishable in this State criminally if contracted or solemnized within this State.

By common law it was not punishable to marry a second time during the life of the first consort or to cohabit under such second marriage, though it was a Canonical offense, but as early as 1604 it was made a felony by an act of Parliament in England and Wales.

The prototype of our statutes on the subject of bigamy and bigamous cohabitation is found in the Statute 9 Geo. IV, ch. 31, sec. 22, which provides that “if any person, being married, shall marry any other person during the- life of the former husband or wife, whether the second marriage shall have taken place in England or elsewhere, every such offender, and every person counseling, aiding or abetting such offender, shall be guilty of felony,” etc. This statute is to all intents substantially re-affirmed in 24 and 25 Victoria, ch. 100, sec. 57. Many of our sister States have followed the statute of 9 Geo. 4th, conforming it to our American conditions. That the General Assembly of Missouri has the power, for the protection of good morals and to punish indecency, to make the cohabitation of a man and woman begun under a bigamous marriage in another State, a felony in this State, there can be no sort of question, and it is practically conceded by the learned counsel for the defendant in this case that if the General Assembly had denominated the offense which it denounced in section 2169, Revised Statutes 1899, a felony only and not bigamy there could he no' constitutional objection to it. Indeed a similar statute is found in many of our sister States. '¿Thus it is provided by section 4933 of the Iowa Code that, “If any person who has a former huhand or wife living marry another person or continue to cohabit with such second husband or wife, he or she, except in the cases mentioned in the following section, is guilty of bigamy, ’ ’ etc.

In State v. Steupper, 91 N. W. 912, the Supreme Court of Iowa sustained an indictment which charged the defendant with feloniously cohabiting with a woman in Iowa in 1901, after he had feloniously married her in Nebraska, the said defendant at the time of said marriage, and cohabitation, having.a lawful wife living. The court said: “ It is not the continuation of cohabitation within this State which is important, hut it is the fact that in this State cohabitation continues, which was commenced in another State under the bigamous marriage.”"

It will he observed that the Iowa statute defines as bigamy the same acts which our State denounces as such.

By section 4185 of the Code of 1876 of the State of Alabama, it is provided: “If any person, having a former wife or husband living, marries another, or continues to cohabit with such second husband or wife in this State, he or she must, on conviction, he imprisoned in the penitentiary, or sentenced to hard labor for the county for not less than two nor more than five years.” In Brewer v. State, 59 Ala. 101, the Supreme Court of that State, speaking of this section, said: “But section 4185 of the Code declares two offenses of very different constituent elements, although of the same general character, and punishable in the same manner. One of the offenses can be prosecuted and punished only in the couDty in which the unlawful marriage is solemnized; in the other, no matter where the marriage takes place, if bigamous, the offense is complete if the parties thus unlawfully married ‘continue to cohabit’ in the county in which the indictment is found.”;

/By section 2, chapter 130, Revised Statutes of Massachusetts of 1836, under the title of Polygamy, it is provided: “If any person, who has a former husband or wife living, shall marry another person, or shall continue to cohabit with such second husband or wife, in this State, he or she shall, except in .the cases mentioned in the following section, be deemed guilty of the crime of polygamy, and shall be punished, ’ ’ etc., and in Commonwealth v. Bradley, 56 Mass. 553, an indictment charging that the defendant was married in New Hampshire in 1836, and afterwards in 1846, while that marriage was still subsisting, was married in Connecticut to another woman, and afterwards did cohabit and continue to cohabit with said second wife in Massachusetts, the said former wife still living, was held good and the conviction sustainedTjMany other similar statutes might be cited to show that in various states of our Union cohabitation under a bigamous marriage con tracted without the state, has been denominated and defined as bigamy. At common law the entering into the second marriage while a former one remained undissolved was designated polygamy, but the terms bigamy and polygamy are used to denote the same offense by most modem law-writers, and treated under the same head. The proposition urged by the learned counsel for the defendant is that it was unconstitutional for the General Assembly to define continued cohabitation under a bigamous marriage, as bigamy.

Conceding that the offense denounced in section '2169, Revised Statutes, would not have constituted bigamy as that term was and is used to designate the offense defined in section 2167, Revised Statutes 1899, .and in various statutes in other states and as stated by authors on criminal law generally, why was it not competent for the General Assembly in the exercise of its plenary power to legislate to make that bigamy which before the enactment of section 2169 was no offense at all in this State? The contention of learned ■counsel, if followed to its logical conclusion, would lead to the nullification of many other statutes in this State. For instance, burglary, at common law, according 'to the accurate Mr. Chitty, was the breaking and enter-, ing the dwelling house of another in the night time with intent to commit a felony whether the felony be actually ■committed or not, and if a statute merely punished one who should commit burglary, doubtless the common-law •essentials of the crime would be held necessary, but there is probably not a State in the Union which has not by its own legislation extended the offense so as to include breaking and entering in the day time, and so as to include breaking and entering shops, warehouses, railroad cars, booths, boats and other premises. So that at this day many acts constitute burglary which at .common law or a few years ago were a different offense or on offense at all. In this State eleven different sections of our Criminal Code (secs. 1880 to 1890) are devoted to defining what acts shall constitute burglary, the larger portion of which did not amount to burglary .at common law. ■ The same may be said of numerous well-defined crimes at common law and it has been and •is now the accepted doctrine of the courts that what acts shall'constitute a crime, is a matter left entirely to the legislative branch of the goverment, subject of course 'to the limitations of the Federal and State constitutions. [People v. Barry, 94 Cal. 481.]

Learned counsel for the defendant relies upon State v. Hartley, 185 Mo. 669, in which section 1825, Laws 1901, p. 128, which provides that, “Every person who shall administer to any pregnant woman any medicine, drug or substance whatever, or shall use or employ any instrument or other means with intent thereby to destroy the foetus or child of such pregnant woman, unless the same shall be necessary to preserve the life of such woman, shall be guilty of manslaughter, in the second degree,” was held inoperative by this court because the statute undertook to establish a degree of homicide where there was in fact no killing or homicide either of the mother or child, and the same view was taken of an almost exactly similar statute by the Supreme Court of Kansas in State v. Young, 55 Kan. 349. We still adhere to the Hartley case, but are of opinion that it does not support defendant’s contention in this case or the judgment of the circuit court. AsjspdYy Mr. Bishop, “Language is the offspring of thejáast, buir its life is in and for the ever opening and progressive future. Its principal mission is to- convey, froní one mind to another, the new thoughts as they arise; for the old is continually dying while the new is being horn. If each word had a single fixed and unchanging meaning and if there were- simply certain established collocations of words, each with its one signification, the powers of language would be very limited, and it could never express a new idea. ’ ’ There is no such confusion of ideas or incongruity in the acts which our Legislature has declared in section 2169 shall constitute bigamy and be punished as such as there was and is in the law which we held inoperative in State v. Hartley, 185 Mo. 669.

The argument of counsel is that the unconstitutionality of section 2169 lies in the fact that it seeks to make cohabitation bigamy, and that it is beyond the power of the- .Legislature to name the acts denounced by the statute bigamy. Counsel assumes that because the bigamous marriage is first contracted in a foreign state, the crime is complete, and can not be again committed in this State. We think counsel has misconceived the purpose of our statute.

It does not purport or attempt to punish the void form of a marriage, the prostitution of a solemn ceremony which the law permits only when a legitimate union is formed, which of course is punishable in the State where it occurs, but it does, what the'greater number of the States of the Union have done: it makes the continuation of a cohabitation, begun and commenced under the void and illegal ceremony in another state, in this State, a felony, and names it bigamy, and, of course, punishable under our Constitution in the county in which the offense is committed in this State.

Under the act of 9 George 4th, and under all the statutes of the several States of the United States making bigamy a felony or crime, the second marriage itself, however formal the ceremony, is void. Although the statutes provide that if any person being married shall marry another, it is obvious, as was said by Lord Chief Justice Cockburn in Regina v. Allen, L. R. 1 C. C. R. 367, 12 Cox Cr. C. 193: “When it is said, in construing the statute in question, the same effect must be given to the term ‘marry’ in both parts of the sentence, and that, consequently, as the first marriage must necessarily be a- perfect and binding one, the second must be of equal efficacy, in order to constitute bigamy, it is at once self-evident that the proposition, as thus stated, cannot possibly hold good; for if the first marriage be good, the second, entered into while the first is subsisting, must of necessity be bad. It becomes necessary, therefore, to engraft a qualification on the proposition just stated, and to read the words shall marry, in the latter part of the sentence as meaning shall marry under such circumstances as that the second marriage would be good but for the existence of the first. But it is plain that those who so read the statute- are introducing into it words which are not to he found in it, and are obviously departing from the sense in which the term ‘being married’ must be construed in the earlier part of the sentence. But when once it becomes necessary to seek the meaning of a term concurring in a statute, the true rule of construction appears to us to be not to limit the latitude of departure so as to adhere to the nearest possible approximation of the ordinary meaning of the term, or to the sense in which it may have been used before, but to look'to the- purpose of the enactment, the mischief to be prevented, and the remedy which the Legislature intended to apply. . . . Polygamy, in the sense of having two wives or two husbands at one and the same time for the purpose of cohabitation, is a thing altogether foreign to our ideas, and which may be said to be practically unknown; while bigamy, in the modern acceptation of the term, namely, that of a second marriage consequent on an abandonment of the first while the latter still subsists, is unfortunately of too frequent occurrence. It takes place, as we all know, more frequently where one of the married parties has deserted the- other; sometimes where both have voluntarily separated. It is always resorted to by one of the parties in fraud of the law, sometimes by both, in order to- give the color and pretence of marriage where the reality does not exist. Too often it is resorted to for the purpose of villainous fraud. The ground on which such a marriage is very properly made penal is, that it involves an outrage on public decency and morals, and creates a public scandal by the prostitution of a solemn ceremony, which the law only allows to be applied to a legitimate union, to a marriage at best but colorable and fictitious, and which may be made, and too often is made, the means of the most cruel and wicked deception. . . . Now the words‘shall marry another person,’ may well be taken to mean shall ‘go though the form and ceremony of marriage with another person.’ ... We think we are warranted in inferring that the words were nsed in the sense we have referred to, and that we shall best give effect to the legislative intention by holding such a case as the present to be within their meaning. ’ ’

When it is considered that in both eases the relation of the party who has a living husband or wife, and then goes through the form and ceremony of marriage with another person, and afterwards continues cohabitation with such party, is practically the same and an outrage on public decency and morals is perpetrated and a public scandal ensues, it is obvious, we think, that the two offenses are so nearly akin and partake of the same general character, that it was perfectly competent for the law-making power to describe both of them as bigamous, and that in so doing, the Legislature has done no more than it has done in extending the law of burglary to acts which at common law did not constitute burglary, and that there is no such a repugnancy in the nature of things as would justify this court in holding a statute which has been on our statute books since the Revised Statutes of 1855, and which has never before been questioned, as inoperative and void. If the simple word “marry” in the act of Parliament and in all of the statutes in the several states on the subject of bigamy, is susceptible of such diverse meanings in the same section, with what reason can it be said that the statute of this state and of Iowa and other states which designate the- felonious continued cohabitation in pursuance of a bigamous second marriage as bigamy, and the statute of Massachusetts which defines it as polygamy, are inoperative merely because the word bigamy is used to define acts which theretofore had been used only to define the act of going through the form and ceremony of marriage with another person, when in law such marriage was illegal, criminal and void? We are not willing to strike down so salutary a statute on such a flimsy ground.

In support of this contention, the learned counsel has cited us to' various decisions of this court which we will now consider.

In State v. Smiley, 98 Mo. 605, the defendant was indicted in Madison county. The indictment charged that the defendant on August 24,1884, at the county of Johnson in this State, married Ruth Grant, he then having a wife living, and that afterwards and prior to the finding of this indictment he.was lawfully apprehended and in custody in Madison county for the felony aforesaid. The indictment was drawn under sections 1533 and 1536, Revised Statutes 1879. Section 1533 of the revision of 1879' was identical with section 2167, Re'vised Statutes 1899, but section 1536 provided that an ‘ ‘ indictment for bigamy as defined in the preceding sections, might be found and proceedings, trial, conviction, judgment and execution thereon had in the county in which such second or subsequent marriage or the cohabitation shall have taken place, or in the county in which the offender may be apprehended.”

Black, J., after reciting sections 1533, 1535 and 1536, said: ‘ ‘ The first marriage is alleged to have been contracted in this State, so that section 1535 (now sec. 2169, R. S. 1899) has no application whatever to the present case. Indeed it is not alleged that defendant cohabited at any time or place with Ruth Grant. The indictment is based on section 1533, and cohabitation is not made an element of the offense therein described. The offense was completed in Johnson county when the second marriage was solemnized. [State v. Fitzgerald, 75 Mo. 572.] - The indictment should have been preferred by the grand jury of Johnson county, unless it can be upheld by force of the last clause of section 1536, namely, ‘or in the county in which the offender may be apprehended. ’ There can be no doubt but the allegations of the indictment are sufficient to bring the case within this clause. This clause has nothing to do with the elements of the offense, and relates alone to the place where the indictment may be found. Now under the Constitution of 1875, the indictment for a felony must be found by a grand jury of the county where the offense was committed. [Ex parte Slater, 72 Mo. 102 ; State v. McGraw, 87 Mo. 161; State v. Briscoe, 80 Mo. 644.] It follows that the clause of section 1536, just quoted, is void, because in conflict with the Constitution of 1875, and it matters not.that it might have been upheld under the Constitution of 1865.”

This case, therefore, is authority only for the proposition that where an indictment for bigamy is based solely upon section 1533, Revised Statutes 1879, now section 2167, Revised Statutes 1899, it must be found in the county where the second or bigamous marriage is solemnized and that so much of section 1536, Revised Statutes 1879, as authorized an indictment and prosecution “in the county in which the offender may be apprehended,” was void. This court expressly excepted section 2169, Revised Statutes 1899, from the scope of its opinion. Of the soundness of that opinion no doubt whatever can be entertained under our Constitution of 1875. To the same effect is State v. McGraw, 87 Mo. 161, which simply decides that an indictment for burglary can only be found in the county where, the burglary was committed.' The other cases cited, to-wit: State v. Cooper, 103 Mo. 266; State v. Hansbrough, 181 Mo. 348; State v. Fitzgerald, 75 Mo. 571; State v. St. John, 94 Mo. App. 229; Adair v. Mette, 156 Mo. 496, have no bearing on the question now under consideration. They relate solely to the quantum and character of proof necessary to establish a valid first marriage in the prosecution of the crime of bigamy. State v. Hatch, 91 Mo. 568, merely holds that the crime of embezzlement can only be prosecuted in the county in which the embezzlement occurs.

The statute ( sec. 2169, R. S. 1899) already quoted, provides that ‘ ‘ every person, having a husband or wife living, who shall marry another person, ibithout this State, in any case where such marriage would be punisable if contracted or solemnized within this State, and shall afterwards cohabit with such person within this State, shall be adjudged guilty of bigamy and punished,” etc. It is at once obvious that this section is leveled at an offense committed in this State, but it malíes no attempt to make any provision for the indictment or prosecution of such offender in a county other than that in which the bigamous cohabitation occurs in this State, and the indictment in this Case charges the bigamous cohabitation to have, taken place in the city of St. Louis within this State, and the indictment is preferred by the grand jury of said city, so that it clearly appears that the indictment was found and prosecuted in the county in which the offense was committed and therefore the doctrine of Ex parte Slater, 72 Mo. 102, and State v. Smiley, 98 Mo. 605, and similar cases have no application unless we accept the contention that it is without the power of the State of Missouri to punish the cohabitation in this State of parties under a bigamous and felonious marriage solemnized in another State. To do this would be to announce that the State was impotent to punish an act, fragrantly immoral and indecent, committed within its own boundaries. In the lamgage of Mr Justice Baldwin in Holmes v. Jennison, 14 Peters (U. S.) l. c. 618, "It would be but a poor and meagre remnant of the once sovereign power of the States, a miserable shred and patch of independence, which the Federal Constitution has' not taken from them, if, in the regulation of its internal police, State sovereignty has become so shorn of authority as to be competent only to exclude paupers, who may be a burden on the pockets of its citizens; unsound, infectious articles, or diseases, which may affect their bodily health; and utterly powerless to punish those moral ulcers on the body political, which corrupt its vitals, and demoralize its members.”

We hold that it is too clear for doubt that it is and was entirely competent for the State to enact and enforce a law, such as is found in section 2169', Revised. Statutes 1899, to punish a man or woman who has contracted a bigamous marriage in another State, a marriage which would be punishable under the laws of this State if contracted here, and then cohabit within this State with the consort of such bigamous and criminal marriage. A statute like this obtains in many of the states of our Union and the power of such states to make and enforce it has been uniformly upheld. It is the offense against the State in which the bigamous cohabitation is committed, that is punished, and not the mere solemnization of a bigamous marriage in another State. The doctrine of relation has nothing to do with the question. [State v. Steupper, 91 N. W. 912; Brewer v. State, 59 Ala. 101; Bishop on Stat. Crimes, sec. 588; Finney v. State, 3 Head 544; Com. v. Bradley, 56 Mass. 553.] While a State cannot punish as crimes acts committed beyond the State boundary, “if the consequences Jof an unlawful act committed outside the State have reached their ultimate and injurious result within it, the perpetrator may be punished as an offender against such State.” [Cooley’s Const. Lim., p. 177, and cases cited in note 3; Beggs v. State, 55 Ala. 108.] We hold then that section 2169, Revised Statutes 1899, is a valid, constitutional statute and the objection that the indictment is bad because bottomed on an unconstitutional law, is not tenable.

II. As to the other grounds of the motion to quash, we think they are not well taken. The indictment alleges that at the time of the second marriage in Illinois, the defendant had a lawful wife, to-wit, Loney Wells Stuart, living; it avers the unlawful second marriage. in Illinois and then, as already observed, charges that the defendant did afterwards, to-wit, on the 16th of December, 1903, and from that day until the 18th day of May, Í905, unlawfully and feloniously in the city of St. Louis, within this State, did abide and cohabit with said Wilmer Jones, the said second wife. This was a .substantial compliance with the statute and there is no merit in the claim that it only charges adultery. It individuates every fact necessary to bring the case within the provisions of section 2169, Revised Statutes 1899.

The circuit court erred in quashing the indictment and the judgment is reversed and the cause remanded for further proceedings.

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


author: BURGESS, P. J.

text:
    THE STATE v. HEIMBERGER, Appellant.
    Division Two,
    March 6, 1906.
    ASSAULT WITH INTENT TO KILL: Evidence. The evidence in this case, which was a prosecution for assault with intent to kill, is held sufficient to support the verdict finding defendant guilty of such an .assault, without malice.
    Appeal from St. Louis City Circuit Court.— Eon. Robert M. Foster, Judge.
    Aeeibmed.

      Herbert 8. Hadley, Attorney-General, and Rush C. Lake, Assistant Attorney-General, for the State.
   BURGESS, P. J.

On the Í6th day of September, 1904, there was filed in the office of the clerk of the circuit court of the city of St. Louis, by the assistant circuit attorney of said city, an information, in due form, charging the defendant with having feloniously, willfully, on purpose and of his malice aforethought, shot at and wounded one Stephen Cornelius, with intent the said Cornelius to kill.

Defendant, thereafter, at the December term, 1904, of said court, was put upon his trial for the offense charged against him, found guilty of an assault with intent to kill, without malice, and his punishment assessed at imprisonment in the penitentiary for a term of two years. Prom the judgment and sentence he appeals.

The facts, briefly stated, are that on the 6th day of July, 1904, Stephen Cornelius and some friends were in the saloon kept and conducted by defendant in the city of St. Louis, when a dispute arose between defendant and Cornelius over the amount owed by Cornelius to defendant for drinks. Cornelius offered to pay defendant what was due him, when defendant said, “Just put it in your pocket; ’ ’ and the dispute appeared to be settled. Shortly thereafter, the defendant made preparations to close the saloon. He put on his coat and hat, came around to the end of the bar, and said, “Well, you fellows will have to get out of here. ’ ’ He then pulled out his revolver, waved it around his head, and said to those in the saloon, “I will give you five minutes to get out of here.” Cornelius replied, “All right, Otto; if you will make it five minutes we will just take the limit.” Defendant then pointed his pistol at Cornelius and shot him, the ball penetrating his jaw, knocking out one of his teeth and fracturing the bone.

The defendant introduced evidence tending to show his good character for peace and quietness. Testifying in his own behalf, he said that he shot in self-defense; that he thought Cornelius had a gun, and that he started for defendant just before he fired the shot. Defendant is not represented in this court.

The court instructed for shooting with intent to kill, with and without malice, and also upon self-defense.

The information is in due form; the instructions covered every phase of the case, are unobjectionable, and the verdict of the jury was well warranted by the evidence.

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

All concur.


text:
    THE STATE v. GRANT, Appellant.
    Division Two,
    March 6, 1906.
    APPELLATE JURISDICTION: Local Option: Constitutional Question: Abandonment: New Trial. Defendant was convicted of the violation of the Local Option law, which is a misdemeanor. Subsequently to the trial defendant abandoned all objections to the constitutionality of the law except two, and these two-were not assigned in the motion for new trial, nor did the-motion for new trial in any way challenge the constitutionality of the law. Held, that the Supreme Court has no jurisdiction, but the appeal should go to the proper Court of Appeals.
    Appeal from Dunklin Circuit Court. — Hon. Jas. EHazell, Special Judge.
    TRANSFERRED TO ST. LOUIS COURT OF APPEALS.

      W. R. Satterfield for appellant.

      Herbert S. Hadley, Attorney-General, and Rush C.. Lake, Assistant Attorney-General, for the State.
   FOX, J.

This cause is here upon appeal by defendant from a judgment of conviction in the Dunklin county circuit court upon an indictment charging the defendant with a violation of what is commonly known as the Local Option law, which had been adopted in that county. The sufficiency of the indictment is nowhere challenged and there is no reason for reproducing it here.

On the 31st day of May, 1904, the defendant was pnt upon his trial before a jury for the commission of the offense charged. The evidence was heard, the court instructed the jury and the causes, which had been consolidated, were submitted to them and they returned a verdict of not guilty in cases Nos. 23 and 24, and a verdict of guilty in case No. 2, assessing defendant’s punishment at a fine of three hundred dollars. Judgment was rendered in accordance with the verdict, and from this judgment defendant prosecuted his appeal to this court, and the cause is now here for consideration.

OPINION.

At the very inception of the consideration of the record before us, we are confronted with this question, Has this court ariy jurisdiction to finally determine this cause? It is conceded that the offense charged, upon which this trial and conviction were had, is a misdemeanor, and it is manifest that unless the record discloses that some constitutional question is involved, and has been properly preserved for review, this court is without jurisdiction.

The record discloses that the appellant, during the progress of the trial, when the State was proceeding to show by the records the adoption in that county of the‘ Local Option law, interposed objections to such evidence; but subsequent to the trial and in the brief now before us appellant makes the following declaration: “The defendant, now, however, abandons and does not further insist on the court reviewing said objections and exceptions to such offerings and the rulings of the court upon the same, and for the purpose of this trial admits that the county court records and all proceedings up to the election, the election, and notices of the same, as well as the notice of the result, were legal, and that at the date of the alleged violation of the law, for which the defendant stands convicted, the Local Option law was in force and effect in Dunklin county, Missouri. The defendant likewise abandons all objections to the constitutionality of the Local Option law which were made and argued at the time the objections mentioned above were made and argued, except objection numbers 10 and 11, which are as follows, to-wit: (10) Because the penalties prescribed by the Local Option act are excessive, and in violation of section 25, article 2 of the Bill of Rights. (11) Because the adoption of the Local Option law disturbs and renders unsettled the financial policy of the county in which it is adopted. ”

When we reach the motion for new trial it is made manifest that appellant does not follow up the objections Nos. 10 and 11, urged in the foregoing statement in the brief. It is nowhere assigned in the motion for new trial, as a ground why it should be granted, that the Local Option law, which defendant was convicted of violating, was unconstitutional in any particular. It is alleged in such motion that, “the court erred in admitting illegal and irrelevant testimony,' in this, to-wit, in permitting the State to offer in evidence, over the objection of the defendant, the orders of the county court and other and further evidence tending to show that the Local Option statute was in force and effect in Dunklin county, Missouri. ’ ’

It is clear that the motion for new trial in no way challenges the constitutionality of the law or its sufficiency in any respect. The only complaint is that the court admitted evidence tending to show that the Local Option statute was m force and effect in Dunklm county, Missouri. This complaint has been abandoned by the express declaration of defendant, as heretofore indicated, in which he states that the ‘ ‘ Local Option law was in force and effect in said county.”

Failing to call the attention of the trial court in the motion for new trial to the objections urged during the progress of the trial, that the Local Option law Was unconstitutional, must be treated as an abandonment of the constitutional question.

The action of the trial court upon the motion for new trial is nearing the final action of the court in the cause, and it is essential in such motion to call the attention of the court to all questions upon which it is sought to have it pass. If such is not done, it cannot be said that the court passed upon a question which is omitted from the motion for new trial.

The constitutional question referred to in the record has repeatedly had the atttention of this court, and litigants seeking to have the cases which have fully dedermined that question reconsidered can only do so by preserving such question in the record in such manner as would authorize the court to review it.

This cause upon the record before us is properly within the jurisdiction of the St. Louis Court of Appeals, and it is therefore ordered transferred to that court.

All concur.


text:
    THE STATE v. CHARLES WALKER, Appellant.
    Division Two,
    March 6, 1906.
    1. BILL OF EXCEPTIONS: Call for Oral Evidence. There is no authority for an appellant to make a call upon the clerk of the circuit court to insert the oral evidence in the hill of exceptions and where, under such a call, a purported copy of the oral evidence is filed in the appellate court, hut there is nothing to indicate in the skeleton hill of exceptions filed that such copy was the testimony which the clerk was directed to insert in the hill of exceptions, or that it had ever been presented to the judge who signed the hill of exceptions, it will not he considered.

      ,2. -: Filing and Signing. The record must show the filing of the hill of exceptions, and if it is filed in vacation, the endorsement of the clerk must show that it was filed within the time allowed. The hill of exceptions is no part of- the record until signed and filed hy leave of court.
    3. PERJURY: INFORMATION. An information, set out in the statement of the opinion, held sufficient to charge the offense of perjury.
    Appeal from Douglas Circuit Court. — No». Jno. T. , Moore, Judge.
    Affirmed.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The information, which was duly verified, is in proper form and contains the necessary averments. It states the court and the trial of the cause in which the perjury is alleged to have been committed; the nature of the action then pending; the fact that defendant was sworn by an officer duly authorized; the substance of his evidence; and the further allegation that the. same was false, and that defendant knew at the time that the same was false. State v. Blize-, 111 Mo. 471; Williams v. State, 68 Ala. 555; Roscoe’s Crim. Evid., sec. 18; State v. Strat, 1 Mürph. (N. C.)-124; State v. Faulkner, 175 Mo. 568; State v. Day, 100 Mo. 249'; People v. Grimshaw, 33 Hun 505; Washington v. State, 22 Tex. App. 32; 2 Bishop Crim. Law, secs. 1032-1038; 1 Greenl. on E.vid., sec. 195; 2 Wharton’s Crim. Law, sec. 1278; Ditcher v. State, 39 Oh. St. 133; State v. Brown, 102 N. W. 802; State v. Cary, 159 Ind. 507. (2) Defendant has not properly preserved for review the alleged errors occurring during the progress of the trial. None of the evidence is contained in the bill of exceptions, neither are the instructions for the State nor for the defendant.
   GANTT, J.

At the September term, 1904, of the circuit court of Douglas county, Missouri, the prosecuting attorney of said county filed in said court the following information:

“In the circuit court of Douglas county, Missouri, a.t the September term, 1904.

“State of Missouri, vs. ‘ ‘ Charles W alker.

“Fred Stewart, prosecuting attorney within and for the county of Douglas and State of Missouri, upon his oath informs the court that heretofore, to-wit, at the county of Douglas and State of Missouri, at the March term of the circuit court of Douglas county, on the 2nd day of April, 1904, before the Hon. Asbury Burkhead, judge of the 31st judicial circuit of the State of Missouri, and ex-officio judge of said Douglas County Circuit Court, a certain action wherein the State of Missouri was plaintiff and J ames Turner and Victory Williams were defendants upon an information preferred against them for the crime of taking away a female under the age of eighteen years from the care of her father for the purpose of concubinage, came on to be tried in due form of law, the said court then and there having competent authority in that behalf, and the said issue was then and there tried by a jury of the county in that behalf duly sworn and taken between the parties aforesaid; upon which said trial one Chas. Walker then and there appeared as a witness for and on behalf of the said James Turner and Victory Williams, the defendants in the action aforesaid, and was then and there duly sworn and took his oath before the said court, which said oath was then and there administered to the said Chas. Walker by Hon. Asbury Burkhead, judge of said court as aforesaid, having full power and competent authority to administer the said oath to the said Chas. Walker in that behalf, that the evidence which he, the said Chas. Walker, should give to the court there and to the said jury so sworn as aforesaid, touching the matter then in question between the said parties.should be the truth, the whole truth and nothing but the truth, and that at and upon the trial of said issue so joined as aforesaid between the parties aforesaid, it then and there became and was a material question whether a certain birth record introduced in evidence in the causé then being tried and showing -that' one India or Dude Hatfield, the prosecuting witness in said cause, was born in 1887 had been changed since the aforesaid action had been commenced; and that the said Chas. Walker then and there on the trial of the said issue upon his oath aforesaid feloniously, willfully, corruptly and falsely, before the court and jury aforesaid, did depose and swear in substance and to the effect following: That is to say, that he, the said Chas. Walker, was at the home of India or Dude Hatfield, meaning the prosecuting witness in the aforesaid cause, a few days before the preliminary trial of said cause and that William Hatfield, the father of the said India or Duke Hatfield, got the record of the births of the children and got one Sol Walker,, who was present, to read it and that he, the said Chas. Walker, heard it read, and that according to said record the said India or Dude Hatfield was born in 1884 or 1885, that Mr. Hatfield, meaning the said William Hatfield the father of the said India or Dude Hatfield, then took the said record and put it into a cigar box; and that he, the said Chas. Walker, was at the home of the said William Hatfield the next day after the said William Hatfield had placed the said birth record in the said cigar box, and that one John, Milt Spurlock and one John Addis were there (meaning that the said John Milt Spurlock and the- said John Addis were at the home of the said William Hatfield) and that the said William Hatfield came into the house and got a paper out of the cigar box (meaning the same cigar box that the said William Hatfield had placed the birth record in) and that they went aronnd to the south end of the house (meaning the said William Hatfield, John Milt Spurlock and John Addis) and that he, the said Chas. Walker, stepped around there, and that they (meaning the said William Hatfield, John Milt Spurlock and John Addis) were scratching something off said paper with a pocket knife, the said Chas. Walker then and there well knowing that the said birth record did not show when read in his presence that the said India or Dude Hatfield was born in 1884 or 1885, and that he was not at the home of the said William Hatfield a few days before the preliminary trial of said cause when John Milt Spurlock and John Addis were there1, and that he did not see William Hatfield take any paper out of said cigar box and take it around to the south end of the house, and that he, the said Charles Walker, did not see the said William Hatfield, John Milt Spurlock and John Addis scraping something off the said paper with a knife, and that the said Chas. Walker then and there knew that the said testimony by him given under oath as aforesaid to be false and corrupt. Whereas in truth and in fact the said birth record did show that the said India or Dude Hatfield was born in 1887, and the said Chas. Walker did not see the said William Hatfield take the said paper out of a cigar box a few days before the preliminary trial of said cause, and the said William Hatfield did not take the said paper around the south end of the house and that neither the said William Hatfield nor John Milt Spurlock nor John Addis at that or any other time scraped anything off of said paper as aforesaid at the time and place aforesaid. And so the prosecuting attorney aforesaid, upon his oath aforesaid, does say that the said Chas. Walker, on the said 2nd day of April, 1904, at the county and State aforesaid, upon the" trial aforesaid, did, in manner and form aforesaid, feloniously, willfully, corruptly and falsely commit wilful and corrupt perjury against the peace and dignity of the State.

“Fred Stewart,

1 ‘ Prosecuting Attorney.

“Fred Stewart, prosecuting attorney, makes oath and says that the facts stated in the foregoing information are true according to his best knowledge, information and belief.

. “Subscribed and sworn to before me, this 14th day of September, 1904.

“0. B. Wilson, circuit clerk.”

At the March term, 1905, of the said circuit court, the defendant was duly arraigned and entered his plea of not guilty, and the case was tried to the court and a jury, and the jury found the defendant guilty and assessed his punishment at two years in the penitentiary. Motions for new trial and in arrest of judgment were filed, heard and overruled, and the defendant was sentenced to the penitentiary in accordance with the verdict of the jury. An appeal was granted to the defendant to this court and leave was given him to file a bill of exceptions within ninety days after the 30th of March, 1905.

I. The defendant is not represented in this court by counsel, but it appears from the record before us that within the time alleged for the filing of the bill of exceptions, the defendant tendered to the judge of the circuit court of said county, to-wit, on the 9th day of May, 1905, a paper writing, which purports to be a bill of exceptions, and that paper has been forwarded to this court as a part of the record. There is no file mark or other evidence showing or tending to show when said alleged bill of exceptions was filed in the office of the clerk of the circuit court of Douglas county. From the fact that the clerk transmits said paper in its original form along with the record in this case, it evidently was deposited with him at some time. This alleged bill .of exceptions is in a skeleton forro, and it recites that the plaintiff, the State of Missouri, produced testimony to the jury tending to prove that the defendant, Chas. Walker, at the trial of the cause wherein the State of Missouri was plaintiff, and James Turner and Victory Williams were defendants, at the April term of the circuit' court of Douglas county, in the year 1904, falsely testified in regard to the age of one “Dude” Hatfield as read to him by one Sol Walker, and also testified falsely stating that , he saw John M. Spurlock and John Addis scratch on a piece of paper with a pen-knife, which paper purported to be the record of the birth of “Dude” Hatfield and other children of William Hatfield, which testimony was in words and figures as follows: (here the clerk will insert all testimony in chief on the part of the State).” No testimony whatever is copied into said purported bill of exceptions, but the official stenographer of that circuit, it appears, did file a typewritten copy of what purports to be the evidence taken by one Samuel H. Grilla^ lan, official stenographer of the 31st judicial circuit'of Missouri, as made by him from his shorthand notes taken the 2nd day of April, 1904, at the trial of the cause of the State of Missouri against Jim Turner and Victory Williams, in the Douglas County Circuit Courts and also a copy of what purports to be the oral testimony taken by the official stenographer of said circuit at the trial of. the cause of the State of Missouri against Chas. Walker, in the Douglas County Circuit Court on the 26th day of March, 1905, with the clerk of the circuit court of said county in his office on April 20, 1905, but there is nothing to indicate in the said skeleton bill of exceptions that the foregoing testimony was the testimony which the clerk was directed to insert in said bill of exceptions, or that it had ever been presented to the judge of the circuit court, who signed the bill of exceptions.

In Tipton v. Renner, 105 Mo. 5, Black, J., speaking for this court, said: ‘£ The practice of filing a skeleton hill of exceptions in the circuit court has long prevailed in this State, and is now well established. Thus, it is sufficient to say plaintiff read in evidence a deed, deposition on file or other document, describing the same, so there can be mistake as to its identity, and concluding, ‘which is in words and figures as follows,’ or with words of like import. This will he sufficient to authorize the clerk to fill out the bill by inserting the document. [Crawford v. Spencer, 92 Mo. 498; Myers v. Myers, 98 Mo. 262, 271.].....It is the business of the judge who tried the case to say what evidence was introduced, and he cannot devolve this duty upon the clerk, the reporter or counsel. It is perfectly plain that he cannot sign a bill as a true one until the parol evidence is written out and made a part thereof. He ought not to sign it until this is done, and if he does sign the hill before such evidence is written out and inserted, the evidence must be disregarded in this court.” Section 866, Revised Statutes 1899, as amended in 1885, contains this proviso: ‘ ‘ Provided, the bill of exceptions so filed contains a direction to the clerk to copy the «ame, and the same are so copied into the record sent up to the appellate court.” This proviso, it has been held, permits and requires the clerk, if directed, to copy into the bill of exceptions certified to the appellate court the motion for new trial, in arrest of judgment, or instructions filed in the lower court. But it does not authorize the clerk to determine and certify what the oral •evidence in the case is. [State ex rel. Harber v. Wear, 101 Mo. 414; State v. Harvey, 105 Mo. 316; Carlin v. Wolff, 154 Mo. 544.]

In view of the statute and the above cases construing the same, there was and is no authority for an appellant to make a call upon the clerk to insert the oral evidence in the hill of exceptions, as was done in this case, and therefore it must he held that the defeu dant in this case has not preserved and brought the evidence in this cause before us in such a form that we can consider it, even if it should he conceded that there was .a bill of exceptions filed in the office of the clerk of the court within the time allowed by the court. It is equally •clear, moreover, that there is nothing in this record that will enable ns to identify the so-called bill of exceptions .as a part of the record. It has been uniformly ruled by this court that the record proper must, if in term time, show the filing of the bill of exceptions, and, if the time he extended in term time, the record proper must show it, and the endorsement of the clerk in vacation must -show the filing of the bill of exceptions within the time •allowed; that the recital in the bill cannot supply that Refect, as, in the very nature of the case, the bill of exceptions is no part of the record until signed and filed by leave of the court. [Ricketts v. Hart, 150 Mo. l. c. 68; Walser v. Wear, 128 Mo. 652; St. Charles ex rel. v. Deemar, 174 Mo. 124-5, and cases cited; Forbs v. Railroad, 107 Mo. App. 661.]

And, therefore, the calls made in the alleged bill of 'exceptions for the motions for new trial and in arrest of judgment and the instructions must be held clearly innSufficient to justify a review of them by this court. And the same is true as to the alleged improper exclusion of ■the evidence of certain witnesses offered by the defended as experts in the case. In this state of the record, the -only matter left for review in this court is the sufficiency of the record proper to sustain the judgment of .the circuit court.

II. The information is sufficient. By section 2039, Revised Statutes 1899, it is provided: “In any indictment for perjury, it shall be sufficient to set forth the ^substance of the offense charged, and by what court or before whom the oath was taken, averring such court nr person to have competent authority to administer the •■same, and that the matter or testimony alleged to be false was material to a certain matter or issue named, without setting forth the particular facts showing its materiality, together with the proper averments to falsify the matter wherein the perjury is assigned, without setting forth any part of the record, proceeding or process, or any commission or authority of the court or person before whom the perjury was committed, or the form of the oath or affirmation, or the manner of administering the same.” In this information the materiality of the issue being tried and to which the evidence of the defendant related, appears upon the face of this information. The information alleges that the issue on trial was whether James Turner and Victory Williams were or not guilty of the crime of taking away a female under the age of eighteen years from the care of her father for the purpose of concubinage. It specifically alleges the court in which said cause and trial were had, and the materiality of the issue is so stated that the circuit court of Douglas county could determine as to its materiality, and it sets out with sufficient particularity the facts to which the defendant testified bearing directly upon the issue, and then negatives the truth of tiie facts sworn to, and assigns perjury upon them. [State v. Cave, 81 Mo. 450; State v. Huckeby, 87 Mo. 414; State v. Faulkner, 175 Mo. 546; State v. Powers, 136 Mo. 194.]

The organization of the court at its regular March term, 1905, is in due form, the oath was administered to the sheriff and his deputies as required by law as to the summoning and returning of jurors to serve at the said term;; the arraignment of the defendant, and impaneling of the jury, and the return of the verdict, and the sentencing of the defendant to the penitentiary for two years, all appear in due form. As no errors appears in the record proper, the judgment of the circuit court must be and is affirmed.

Burgess and Fox, JJ., concur.