text:
    THE STATE v. O. J. ROSE, Appellant.
    Division Two,
    May 29, 1917.
    1. JURORS: Service for Parts of Two Weeks. Members of the panel who had served two days as jurors the week preceding the trial and been in attendance upon the court two days thereafter during the week they were impaneled to try the case, were not ineligible or disqualified under a statute which provided that “no petit juror shall be permitted to serve on such jury for more than one week consecutively during any term of court.” The statute limits the right of challenge to the time of actual service of the juror, and not to the period of his attendance upon the’ court under the venire.

    2. HYPOTHETICAL QUESTION: Insanity: Based on Absence of Evidence of Pact. Where the entire testimony prior to the cross-examination of defendant’s expert witness had been confined to showing insanity on the part of defendant’s father and congenital mental and physical weakness on the part of certain brothers and sisters of defendant, and there was no evidence of a taint of insanity in the family of defendant’s mother, it was not error for the hypothetical question propounded by the prosecuting attorney on cross-examination to assume that there was no insanity in the mother’s family.
    3. IMPROPER EVIDENCE: Exclusion on Wrong Ground. If the evidence offered was improper on any ground, an insufficient of er- ' roneous ■ reason assigned by the trial court for excluding it does not constitute prejudicial error. It is the ruling of the trial court, and not the reasons therefor, to -which the appellate court looks to determine error.
    4. EXPERT WITNESS: Own Estimate of Competency. The competency of witness to testify is not to be measured by his own estimate of his qualifications, but by the trial court; and if the preliminary examination of a physician satisfies the court that he is competent to testify as an expert on insanity and the facts justify that ruling, a statement by him that he is not an expert on insanity does not disqualify him to testify.
    5. REOPENING OF CASE: Discretion of Trial Court. The reopening of the case by the State for the introduction of the check alleged to have been forged by defendant was a matter within the discretion of the trial court; and in -the absence of prejudice, to the accused because thereof, will not be condemned by the appellate court.
    6. INSANITY: Former Affirmative Adjudication: Discharge. The presumption that one who has been adjudged insane continues in the same condition does not obtain after his discharge as curéd; and the presumption of sanity which always obtains in the absence of countervailing proof is not removed by such former adjudication after the commission of the crime and his discharge, but the proper inquiry is, did the defendant know he was doing wrong at the time he committed the offense?
    7. INSTRUCTION: Refusal of Defendant’s. If the instructions given were clearly and accurately framed and were ample in themselves, the trial court did not err in refusing instructions asked by defendant.
    Appeal from Buchanan Criminal Court. — Hon. Thomas F. Ryan, Judge.
    Affirmed.

      Mytton é ParJdnson for appellant.
    (1) The court erred in refusing to quash the array of jurors, for the reason that they had served during the preceding week of the same term of court. Laws 1911, p. 307, sec. 13,; Williamson v. Transit Co., 202 Mo. 345. (2) The court erred in permitting the prosecuting attorney to ask' the hypothetical questions propounded to the witnesses, for the reason that they contained many facts not included in the evidence. State v. Palmer, 161 Mo. 152; State v. Dunn, 179 Mo. 95; State v. Brown, 181 Mo. 192. (3) The hypothetical questions called upon the witness to express his opinion on matters peculiarly within the province of the jury and required the witness to reach his own conclusions and he the judge of certain facts pertaining to the handwriting on the check, the witness not having qualified as a handwriting expert, instead of leaving that fact to the jury. State v, Hyde, 234 Mo. 252; State v. Witherspoon, 231 Mo. 719; Sec. 6382, R. S. 1909. (4) The court erred in permitting witnesses to answer hypothetical questions when the witnesses themselves admitted they were not experts along that line. (5) The court erred in refusing to permit the defense to recall appellant’s mother for further testimony at the close of the State’s rebuttal. (6) Defendant had been adjudged insane by a competent tribunal and the court was without power to put defendant on trial.

      Frank W. McAllister, Attorney-General, and Henry B. Hunt, Assistant Attorney-General, for the State.
    (1) The court’s action in. overruling the motion to quash the array of jurors, filed by appellant, was correct. The language of section 13, Laws 1911, page 307, means that such jurors shall actually serve for one whole week. Humphrey v. State, 86 S. W. 431; Provident Institution for Savings v. Burnham, 128 Mass. 461. (2) The hypothetical questions propounded to the witnesses fully recited all the material facts in evidence, and did not include facts not in evidence. State v. Duestrow, 137 Mo. 87; Rogers on Expert Testimony (2 Ed.), 71, 72. In putting hypothetical questions to the expert witnesses, counsel for the State had the right to assume the facts in accordance with his theory of them; it was not essential that he state the facts as they actually existed. State v. Bell, 212'Mo. 124; 'State v. Privitt, 175 Mo. 225; Rogers on Expert Testimony (2 Ed.), 65. (3) The check described in the information was properly submitted to the experts in the hypothetical questions; with regard to said cheek, they were not required to qualify as handwriting experts. State v. Holloway, 156 Mo. 230; State v. Pagels, 92 Mo. 309; State v. Welsor, 117 Mo. 579; State v. Soper, 148 Mo. 239. (4) The other checks introduced by the State and included in the hypothetical questions given to the experts were relevant on the question of sanity or insanity of appellant; and the witnesses were not required to qualify as handwriting experts. State v. Hodges, 144 Mo. 53; State v. Bell, 212 Mo. 123; State v. Holloway, 156 Mo. 230. (5) Possession of forged instruments and the utterance of them soon after they were forged are cognate evidence that the appellant was the forger. State v. Bell, 212 Mo. 128. (6) Where a physician has had eighteen years experience as a practitioner of medicine, and during that time has been a student of mental and nervous diseases and in charge of a sanitarium for one and one-half years where mild forms of insanity and nervous troubles were treated, he is qualified as an expert on insanity, although disclaiming to he an expert on the subject of insanity generally. State v. Bell, 212 Mo. 125. (a) The question whether the witness possesses the necessary qualifications to render him competent to testify in the character of an expert, is a preliminary question addressed to the court. State v. Daly, 210 Mo. 676;. Rogers on Expert Testimony (2 Ed.), 39. (b) And such decision resting largely in the discretion of the court, a case will not be reversed unless such discretion is abused. Helfenstein v. Medart, 136 Mo. 615; Commonwealth v. Sturtivant, 117 Mass. 137; Allen’s Appeal, 99 Pa. St. 202; Rogers’ Expert Testimony (2 Ed.), 56. (7) It is a matter within the discretion of the trial court whether a party shall be allowed to reopen his case and introduce further testimony. State v. Currier, 225 Mo. 651; State v. Pennington, 124 Mo. 391; State v. Eisenhour, 132 Mo. 148; State v. Smith, 80 Mo. 520; State v. Dunn, 179 Mo. 118. (8) The fact that appellant had been adjudged insane by the county court of Platte County after the information in this cause was filed did not take away the right and authority of the circuit court to put appellant on trial. Sec. 5207, R. S. 1909; State v. Crane, 202 Mo. 80; State v. Church, 199 Mo. 634. The question of appellant becoming insane after the filing of the information should have been raised by motion. State v. Church, 199 Mo. 626; State v. Crane, 202 Mo. 79.
   WALKER, P. J.

Appellant was charged with forgery in the second degree in the criminal court of Buchanan County and upon a trial was convicted and his punishment assessed at five years’ imprisonment in the penitentiary. Prom this judgment he appeals.

The specific charge, by information, against the defendant was the forgery of a check for $2700.95 drawn on the Bank of Buchanan County, made payable to himselt and signed by S. S. Allen. The latter at the time the check is alleged to have been made, August 15, 1914, was president of the Allen Grocery Company of St. Joseph. On this day he was absent from the city and the defendant came to the store on other business and in the temporary absence of the manager sat down at the latter’s desk and was seen by the stenographer to be writing. A book of blank checks on the Bank of Buchanan County, to some of which S. S. Allen had signed his name, had been left lying on the desk where the defendant sat. Morrow, the manager of the grocery company, on his return from luncheon discovered that three checks having Allen’s name thereon had been torn from the book. Defendant left the store before Morrow’s return. The same day defendant presented to the Empire Trust Company of St. Joseph for deposit and credit the check described in the information, indorsed with his name, which was accepted by the Trust Company and he was credited with the amount of same. On the Wednesday following the 15th day of August, 1914, which was Saturday, inquiry was made of Morrow, the manager of .the grocery company, by the Buchanan County Bank in regard to three checks drawn on the hank payable to the defendant, signed by S. S. Allen and indorsed by the defendant. In reply to this inquiry Morrow went to the bank and identified the checks as the ones which had been torn from the grocery company’s cheek book. One of these checks was that for $2700.95 described in the information. It appears that the defendant,. when this cheek was placed to his credit by the Trust Company, obtained a cashier’s check for $2000 payable to himself. He tried at several banks to cash it and finally succeeded in so doing at a bank in Atchison, Kansas, where he purchased a diamond from the cashier and presented the check for payment, receiving the balance in excess of the price paid for the diamond in cash. Evidence was introduced in regard to two other checks signed by S. S. Allen and drawn on the Bank of 'Buchanan County. All of these checks were stated by the defendant to represent money made by him in speculating in sugar and that he had sold his holdings to the Allen Grocery Company. There had been no business dealings between the defendant and the Allen Grocery Company in which the former had been given checks by the latter. Thereafter the defendant fled from the State and was subsequently apprehended on the Pacific Coast, brought back and let to bail. At the ¡trial the defense of insanity was interposed, resulting in the introduction pro and con of a great volume of testimony, much of which was wholly irrelevant. Same will be considered where it is necessary to a discussion of the errors complained of.

I. Error is assigned in the refusal of the trial court to quash the array of jurors. The ground alleged was that each member of the array had served on the petit jury of said court more than one week conseeutively during the special adjourned term at which the defendánt was tried., The admission of the parties at the time of the overruling of defendant’s motion to quash the array contains a sufficient statement of the facts. It is as follows:

“It is admitted by the State and the defendant that each of the jurors were subpoenaed to be here on the 5th day of October and that they served two days of last week, then were excused until the 11th day of October of this week and this is the second day of this week.”

The statute alleged to have been violated is applicable to the selection and service of jurors in counties of from 100,000 to 175,000, to which class Buchanan County belongs. The pertinent portion of this statute is as follows: “No petit juror shall be permitted to serve on such jury for more than one week consecutively during any term of court: Provided, that-in no case shall this section cause the discharge of any juror during the actual pendency of the trial of any cause.” [Sec. 13, Laws 1911, p. 307.]

The purpose of this statute is to free trials from the presence of professional jurors and to equalize jury service, so that no juror in the counties designated shall be required, subject to the proviso contained in the section, to serve more than one week during any term of court. On account of the plain terms of this statute it is not deemed necessary to discuss the distinctions made by courts of last resort in other jurisdictions between the ineligibility and the incompetency of jurors so far as regards the right to challenge same under statutes similar to the one under review. The statute here, according to its express terms, limits the right of challenge to the time of actual service of the juror and not to the period of his attendance upon the court under the venire.

.The members of the panel had served two days as jurors the week preceding the trial and they had been in attendance on the court two days thereafter during the week they were impaneled to try this case. They were, therefore, not ineligible nor disqualified within the meaning of the statute. Not only is this construction in accord with the letter and purpose of the statute, but. it finds support in the rulings of other courts in construing statutes of like import.

Under a North Carolina statute (Laws N. C. 1879, ch. 200) it is provided, in effect, that one who had acted in the same court as a grand or petit juror within two years next preceding such term of the court should not within the time stated be competent for jury service. The court, held, in passing upon a challenge based on the ground of service, that “the disqualification attaches to the juror who £has acted’ or served as such, and not to one who has been at the court under a summons, liable only to be called on for such service.” [State v. Thorne, 81 N. C. l. c. 558.] This ruling was subsequently cited with approval by the same court in State v. Brittain, 89 N. C. 481, and State v. Whitfield, 92 N. C. 831.

Section 4529, Kirby’s Digest, Laws of Arkansas, provided that the term of service of any person summoned to serve on a petit jury in the circuit court should be limited to four weeks, and that no person so serving should he eligible for further service during that term or the next succeeding term. The Supreme Court of that State, in construing this section, held that four weeks’ actual service was necessary to render a person ineligible for further service during the term for which he was impaneled. It appearing that the jurors challenged had not served four weeks, they were eligible. [Humphrey v. State, 74 Ark. 554.]

It is held by the Supreme Court of Kansas that a challenge of a juror on the ground that he has served as such in a court of record during the year next preceding the trial, is, under-section 3, chapter 54, General Statutes of Kansas 1889, not a good cause for challenge unless it is shown that the juror actually sat in the trial of a cause. Where it appeared that he was merely summoned on the regular panel at a preceding term but was discharged from attendance because there were no jury cases to try, the challenge was properly . overruled. [State v. Lowe, 56 Kan. 594.]

The ruling in Williamson v. Transit Co., 202 Mo. 345, relied on by appellant to sustain his contention in this regard, does not militate against the conclusion here reached. The statute there construed (Sec. 6547, R. S. 1899, now Sec. 7342, R. S. 1909) provides that those who have served on a jury in any court of this State within twelve months next preceding shall be subject to challenge by either party for that cause. There as here the ground of challenge is expressly stated to be service within the time limited, and not simply that the jurors had been summoned for service.

In view, therefore, not only of the language of the statute itself but of the uniform ruling upon like enactments in other jurisdictions, defendant’s contention is overruled.

II. Defendant contends that the prosecuting attorney in- the hypothetical question framed by him and propounded on cross-examination assumed facts not in evidenee. To illustrate, it is alleged that the Question assumed that there was no taint of insanity in the defendant’s mother’s family. There was no evidence on this subject. After the hypothetical question framed by the prosecuting attorney had on cross-examination been propounded to defendant’s expert-witnesses and same had been answered, counsel for defendant in rebuttal asked the latter’s mother if she did not have an uncle who had been adjudged insane. Upon objection the court ruled that this inquiry was only proper if limited to the relations by blood of the mother. This objection might have been even more restricted as applied to the admission of proof of the insanity of collateral relatives of the accused. [State v. Baker, 246 Mo. l. c. 373.] This error, however, favored the defendant and is not a ground* of complaint.

Without limiting the inquiry as indicated by the court, the defense persisted in the offer and the court excluded same, to which ruling the defendant saved exceptions. While the ruling of exclusion as finally made was not on the ground first stated, the testimony as offered being improper on any ground, defendant will not be heard to complain. It is the ruling of the trial court and not the reasons assigned therefor to which we look to determine whether error has been committed. An insufficient or erroneous reason will not constitute grounds for reversal if the ruling was not prejudicial. [State v. Kaiser, 124 Mo. 651; State v. Mitchell, 98 Mo. 657.] This rule is uniformly applicable regardless of the nature of the ease under review. [State ex rel. v. Finn, 100 Mo. 429; Green. v. St. Louis, 106 Mo. 454; Bissell v. Warde, 129 Mo. 439; Egger v. Egger, 225 Mo. 116; Chlanda v. Transit Co., 213 Mo. l. c. 262; Green v. Term. R. R. Co., 211 Mo. 18.] The entire testimony prior to the cross-examination of defendant’s witnesses had been confined to showing insanity on the part of defendant’s father and congenial mental and physical weakness on the part of certain, brothers and sisters of defendant. It was therefore a legitimate deduction from all of 'defendant’s testimony that there was no insanity in the mother’s family. [State v. Privitt, 175 Mo. 207; Greeno v. Roark, 8 Kan. App. 390.]

The evidence tended to establish the facts alleged to have been improperly hypothetically assumed by counsel for the State, not only in regard to the assumption of an absence of insanity in the mother’s family, but that defendant prior to the time stated had not been subject to delusions or hallucinations. We held in Fullerton v. Fordyce, 144 Mo. l. c. 531, that a hypothetical question based upon what the evidence tended to establish was not improperly framed. We therefore hold that defendant’s contention in this regard is without merit. ■

III. A Doctor Byrd testified on behalf of the State. His testimony as an expert is objected to and its admission is challenged as error. The ground for this contentention is that the witness stated that he was Hot an expert on insanity and hence a hypothetical question in regard thereto should not have been propounded to him and his answers admitted in evidence. This objection is without merit. The competency of a witness to testify as an expert is not to be measured by his own estimate of his qualifications, but by the trial court after an examination to that end. [State v. Daly, 210 Mo. l. c. 676.] The preliminary examination of this witness satisfied the court that he was competent to testify as stated. The record of this testimony is such as to sustain the conclusion that the court did not abuse its discretion in thus ruling. Defendant therefore was not thereby prejudiced.

IV. The reopening of the case by the State for the introduction in evidence of the check alleged to have been forged was a matter within the discretion of cotl]U. In the absence of prejudice to the accused on this account we will not interfere. It is well settled law that such a course is not subject to criticism unless it be shown that injury to the defendant resulted therefrom. There is no evidence or indication of such a result her. [State v. Worton, 139 Mo. l. c. 533; State v. Dunn, 179 Mo. l. c. 118; State v. Currier, 225 Mo. l. c. 651.]

V. Defendant contends that having been adjudged insane about one year after the commission of the crime with which he was charged, he should not have been put upon this trial. The authorities of the hospital in which he was confined reached the conclusion soon after he was incarcerated therein that he was feigning insanity and discharged him as sane. The plea was not interposed that the defendant was insane at the time he was arraigned for trial. Having been discharged as cured of his former mania or because it was determined that he had never been insane, there was no occasion or authority to test his sanity under the provisions of Section 5207, Revised Statutes 1909, and such a course was not pursued. If the condition first stated had existed, viz., former insanity, the presumption as to the continuance of this condition did not obtain after his discharge from the hospital. [State v. Vaughn, 223 Mo. 149.] It is only upon a defendant’s motion for a hearing as defined in the statute cited that he is entitled to revoke the same. [State v. Church, 199 Mo. 605; State v. Crane, 202 Mo. 54.] Defendant, instead of demanding a hearing under such statute, proceeded to trial, interposing in his defense voluminous testimony by which it was sought to be shown that he was mentally irresponsible for the act for which he was being tried. There was no evidence of such incapacity at the time of the commission of the offense.

The test in determining this matter was, did the defendant know that he was doing wrong at the time of the commission of the offense? This measure of mental responsibility has uniformly been applied in this State when the defense of insanity has been interposed. [State v. Morris, 263 Mo. 339; State v. Riddle, 245 Mo. 451; State v. Miller, 111 Mo. 542; State v. Kotovsky, 74 Mo. 247.] This ruling accords with reason and avoids the technical distinctions invoked in other jurisdictions in the presence of a plea of insanity, which tend only to interfere with a wholesome administration of the criminal law. The presumption of sanity which always obtains in the absence of countervailing proof (State v. Barker, 216 Mo. l. c. 544) was not removed in this case and the jury was reasonably satisfied from a preponderance of the evidence that the defendant was sane at the time of the commission of the crime. We find no cause for interfering with this finding.

VI. No fault is to he found with the instructions. They follow well established precedents, are clearly and accurately framed, and thus served as a prop- ^ gUj¿e for -¿he triers of the fact in making up their verdict. Ample in themselves, the court did not err in refusing the instructions asked by the defendant.

The defendant had a fair trial and has no substantial ground of complaint. The judgment of the trial court should therefore he affirmed, and it is so ordered.

All concur.


source: Caselaw Access Project

author: WHITE, C. PER CURIAM. WHITE, C. PER CURIAM

license: Public Domain

text:
    THE STATE ex rel. COLUMBIA TELEPHONE COMPANY, Appellant, v. JOHN M. ATKINSON et al., Members of Public Service Commission.
    Division Two,
    May 29, 1917.

    1. TELEPHONE COMPANY: Valuation of Properties. Where the Public Service Commission found the rates as fixed by the telephone company to be reasonable and overruled the complaints that they were excessive, the company cannot complain that the valuation of the company’s plant as fixed by the commission “for the purpose of determining reasonable and just rates” was unjust, in that it failed to take into consideration all the factors that should have been considered, and the court will not on the company’s appeal investigate the evidence and determine whether or not such valuation was correct. If no present relief is sought which in any manner can be affected by the valuation fixed by the commission, there is no sufficient reason why the court should review the valuation.
    2. -: -: Conclusive for All Time. The valuation of a telephone plant as fixed by the Public Service Commission is not conclusive for all time. If that were the meaning of section 101 of ' the Public Service Act it would be unconstitutional, since the Legislature cannot prescribe what shall be conclusive evidence. So the part of the section that provides that the facts found by the commission on the first valuation cannot be controverted except by a showing of a change in condition must be held to be inconsistent with and subservient to the further provision for a reexamination and revaluation. [Opinion on rehearing.]
    3. -: Installation Charge. A telephone installation charge of three dollars, required to be paid in advance, for which if the service is continued until the end of a year the subscriber is given credit on the last two months, and if the service is discontinued before the end of the year the deposit is forfeited as being in the nature of an additional charge for short-term service, is unreasonable.
    4. -: -: Pledge Without Interest. Said installation charge, paid in advance, is an addition to the working capital of the company on which it pays no interest, and ignores the principle that a pledgee is always liable to.the pledgor for the profit which he receives from the thing pledged.
    5. -: Removal Charge. A rule of a telephone company by which a removal charge of fifty cents is made where there is no such removal of the telephone, but the only change is that one tenant moves out and another moves in, without additional expense to the company except the small matter of book-keeping, is unreasonable.
    6. -: Extra Charge to Rooming Houses. Where the evidence is that there is a separate directory gotten up by students, in which are listed the names of three thousand students who are not telephone subscribers, and in which appear opposite the proper telephone numbers the names of most of them, and that students require telephone service to go with what they pay for room rent, an additional' charge of fifty cents per month for the use of a telephone in a private residence in which one or more roomers or boarders are kept, is not unreasonable.
    Appeal from Cole Circuit Court. — Hon. J. C. Slate, Judge.
    Reversed and remanded (with directions).

      McBaine & Clark and Wi. M. Williams for appellant; Hugh Dabbs of counsel.
    (1) This court will examine, consider, and weigh the evidence, and reach its own conclusions and findings of fact upon the testimony in the record, as in equity cases; and, in effect, try the case de novo. Railroad v. Public Service Comm., 266 Mo; 333. (2) The Public Service Commission “has made an omnibus allowance, without itemization in findings, opinion, or order,” and, if it can be said that this is a compliance with the statutory requirement of “findings of fact in writing,” it certainly cannot be of material aid to the court in making .its findings upon this record. Gas & Elec. Co. w. Barker, 231 Fed. 331; Sec. 101, Public Service Com. Act., Laws 1913, p. 634-5; People v. Wilcox, 210 N. Y. 479. (3) The owner of property devoted to' public use is entitled to a fair and reasonable return upon his entire investment used in serving'the public. Such valuations should not be so low or the investments looked upon with such disfavor as to hamper enterprise or discourage investments of private capital in the service of the public. No public interest requires the omission of any element of value from the allowance upon which a public service company may make a fair return. The valuation put upon the Columbia Telephone property by the Public Service Commission was entirely too low, and should not be permitted to stand. Knoxville v. Water Co., 212 U. S. 18; Railroad v. Railroad Comm., 136 Wis. 146; Printing Co. v. Gas & Elec. Co., 4 Wis. R. C. R. 648. (4) It is well settled, in valuing public service properties, that a fair allowance must be made for “going value” or “cost of development.” The Commission in this case ’made no definite allowance for “going value” or “cost of development.” Omaha v. Water Co., 218 U. S. 180; Gas Light Co. v. Cedar Rapids, 223 U. S. 665; Minnesota Rate Case, 184 Fed. 765, 230 U. S. 352; Wilcox v. Gas Co., 212 U. S. 17; Express Co. v. Ohio, 166 U. S. 185; Waterworks Co. v. Kansas City, 62 Fed. 853; Trust Co. v. Railroad, 90 Fed. 683; Waterworks v. San Francisco, 124 Fed. 574. (5) All the authorities are to the effect that a fair allowance should be made for cash working capital. While the Commission referred to.it in its opinion, no definite allowance was made for such capital. Whitten, Valuation of Public Service Corporations, p. 287; Floy, Valuation of Public Utility Properties, p. 125; Tel. & Tel. Co. v. Louisville, 187 Fed. 646; Printing Co. v. Gas,& Elec. Co., .4 Wis. R. C. R. 501; Cunningham v. Chippewa W. L. Co., 5 Wis. R. C. R. 316; Gas Co. v. New York, 157 Fed. 849; Weaver v. Light Co., 1 Mo. P. S. C. 165; In re Missouri Southern Ry. Co., P. IT. R. 1916 C. 645; Springfield v. Gas & Elec. Co., P. IT. R. 1916 C. 381. (6) If, from the cost of the property, there is to he deducted the actual depreciation, then there must he added to the depreciated value of the property the reserve fund set apart to make good such depreciation. Wilcox y. Gas Co., 212 IT. S. 17; Knoxville v. Water Co., 212 IT. S. 1; Murray v. Public Service Comm., 150 Pac. 47; Whitten, Valuation of Public Service Corporations, 350. (7) The rule of the Columbia Telephone Co., requiring an advance payment of three dollars to be credited on the last month or months of the year’s subscription is reasonable and just. The installation of a telephone for less than a year’s subscription entails a loss to the company. The order of the commission, permitting an advance collection for three months, is no fairer to the subscriber than the company’s rule, and does not furnish adequate protection to the company. Similar rules to that of the Columbia Telephone Co. have been approved by other Public Service Commissions. 1 Pond, Public Utilities, 219. (8) Reasonable' classification of subscribers for telephone service is entirely prop-, er and may be made by the company. The separate classification by the Columbia company of rooming houses with a rate between private residences and business houses is proper under the conditions shown to exist in that locality.

      Alex. Z. Patterson and James D. Lindsay for respondents; N. T. Gentry of counsel.
    Counsel for appellant complain , that the valuation on the Columbia Telephone plant was fixed too low by the commission; and they insist that the Supreme Court should review the case and decide that the weight of the testimony on that subject is in their favor. Even if this court will review the testimony on that subject, this court will certainly give to the finding of the commission as much weight as the finding of a trial court, when there is some testimony to support it. After a long and patient investigation, after numerous continuances and the introduction of a food of evidence (which to say the least was contradictory), the commission made its finding. Appellant contends that the additional sum of fifty cents per month from each boarding house and rooming house is a reasonable charge, although counsel for appellant do not cite us to a single town or city where such a practice has been adopted. It' is claimed by appellant that the telephone rates in Columbia are not too high,, because of the large number of students in Columbia attending- the State' University, yet appellant then wants to add to the already high rate an additional charge of fifty cents per month for houses where students room or take their meals. Such extra charge is not made in other cities and towns of our State, nor in other college towns, nor in the capital city, nor in any of the cities where state institutions are located. It is a charge peculiar to the Columbia Telephone Company. The intimation that students of the University use the telephones so much more than the students of the other college towns of our state and nation, and so much more than any other kind of boarders in other towns, can hardly be taken seriously. Perhaps the most unreasonable charge about which complaint is made is the so-called “Advance Payment,” or as stated to other patrons the “Installation Fee” or “Deposit Fee,” sometimes called the “Removal Fee.” If the testimony can be believed, the telephone company has one rule for one person and another rule for another person. Some persons were charged one dollar, some one dollar and a half, some two dollars, and the easy ones three dollars. All of the new subscribers of the telephone company pay some sort of a charge, which is also unknown to other Missouri towns. It is now charged by the telephone company that a fee of three dollars; as an advance payment, is reasonable, that it can make no money by renting a phone for less than one year. This is an argument that may well be addressed to one who-is contemplating going into the telephone business; but it is no reason for requiring one person to pay one sum as rent for a telephone for nine months, and another person to pay another sum for the same length of time. Under our present law such discrimination is prohibited. Besides the telephone company is receiving pay for services never rendered.

      NOTE. — Opinion filed April 10, 1917; motion for rehearing filed; motion overruled and opinion filed May 29, 1917.

   WHITE, C.

This proceeding was instituted on the 20th day of May, 1915, in the circuit court of Cole County, to review on certiorari the action of respondents in two cases, one of which was known as case No. 69, entitled “J. Ben Sims v. Columbia Telephone Company;” the other was known as No. 282, entitled “In the matter of the Valuation of the Telephone Exchange Rural Lines and Long Distance Toll Lines of the Columbia Telephone Company.” These cases were consolidated and tried a» one before the Public Service Commission.

Case No. 69 filed before the commission was sworn to by J. Ben Sims and signed by thirty-one other residents of the city of Columbia, making complaints against the Telephone Company, as follows:

(1) That the rates of the Columbia Telephone Company were excessive as compared with other university towns and towns of like population;

(2) That where one or more boarders or roomers were in the house of a subscriber an additional charge was made;

(3) That where an extension telephone was put in by the company an additional charge of fifty cents per month was made;

(4) That the Telephone Company should furnish free all telephones used by the city and the public schools, which it failed to do;

(5) (a) That a charge was made for installing telephones; (b) that a charge was made to the residence in which a telephone was installed when one tenant moved out and another moved in;

(6) That the Telephone Company refused to place telephones lower than three and a half feet from the floor for the reason that if telephone users could sit down they would use the telephone more than if they had to stand up.

Case No. £82, filed before the commission,- was signed by forty-nine citizens of Columbia requesting the Public Service Commission to investigate the Columbia Telephone plant and place a valuation thereon, on the ground that the petitioners believe the rates charged in the city of Columbia were too high; a reduction of rates was asked. Case No. 282 will be treated as a part of the complaint (1) in case 69. •

After hearing the cases, the commission found against the complainants in favor of the Telephone Company as to complaints (1), (3), (4) and (6). The commission found against the company on complaint (2), holding that the rule of the company, classifying as boarding-houses private residences having two or more boarders or roomers and charging them an additional rate of fifty cents per month, was an unreasonable discrimination; the commission also found against the company on complaint (5), (a) and (b), holding (a) that the installation charge was unreasonable. This charge was three dollars, which the company required to be deposited on the installation oí the telephone, (b) The commission ordered the discontinuance of- the charge of fifty cents for making the change, where one tenant moved out and another moved in.and used the same telephone.

On account of the rulings against the company in the matters mentioned, it filed its petition for review in the circuit court. The circuit court upon hearing the case affirmed the orders of the commission in all respects. From- this order of the circuit court the petitioner, the telephone company, appealed to this court. > In addition to the rulings of the commission against the company in matters suggested on complaints (2), and (5) (a) and (b), the company complained in its motion for rehearing before the commission and in its petition for review and in its motion for new trial in the circuit court, that the rulings of the commission, in its valuation of the property, were erroneous. '

I. A large volume of evidence was taken before the commission regarding the value of the company’s plant, aiid upon the hearing that value was fixed at the sum of $182,000, “for the purpose of determining reasonable and just rates.” Although the commission decided in favor of the company that the rates fixed hy it for the city of Columbia were reasonable and just, and dismissed.the complaint as to that, the appellant assigns as error the action of the circuit court in affirming that ruling in so far as it assessed the value of the plant, and now asks the court to review. the matter of valuation and determine as an independent proposition whether the value fixed was reasonable, and whether the commission took into consideration in fixing such value all the factors which should have been considered.

The complaints ruled against the company, (2) and (5), are mere matters of regulation and classification and must be determined without regard to the value of the company’s property. The only purpose of ascertaining the value, as mentioned in the complaint in No. 282, was to find out whether the rates were reasonable and to secure a reduction of rates. While the statute, authorizing the commission to ascertain the value of the property of such companies, stands by-itself as a separate provision of the Public Service Commission Act, we cannot see that the commission would be required, as a mere matter of curiosity, independent of any purpose it might serve, to go to the labor and expense of ascertaining the value of any such property. Such action, when taken hy the commission, is for some definite purpose; usually for the purpose of fixing rates, although it might be done when the commission has before it for consideration the propriety of allowing the-issuance of stocks and bonds or of any other acts of a corporation over which the commission has supervision. The commission found the rates reasonable as fixed by the company and this court can see no good purpose which can be served by inquiring into the facts or grounds upon which the conclusion was reached. The company has no right to complain; the ultimate finding on the point at issue was favorable to it, although some subordinate facts were found against its contention.

II. Appellant, however, bases its right to have this " matter reviewed upon an apprehension of future trouble that the value so fixed might give it. ^ ca^s Mention to the language of the Public Service Commission Act, section 101, p. 635, Laws 1913:

“The findings of the commission so made and filed, when properly certified under the seal of the commission, shall be admissible in evidence in any action, proceeding or hearing before the commission or any court in which the 'commission, the State or any officer, department or institution thereof, or any county, city, municipality or other tody politic and the telegraph corporation or telephone corporation affected may be interested whether arising under the provisions of this act or otherwise, and such findings when so introduced shall be conclusive evidence of the facts therein stated as of the date therein stated under conditions then existing.”

The very terms and provisions of section 101 make it fairly plain that there is no sufficient reason why this court should review the matter of the valuation fixed by the Public Service Commission. The more so since no present relief whatever is sought which in any manner can be affected by such valuation. The question of the correctness of this valuation is, upon the facts before us, a mere moot question. When the timely raised question of the constitutionality of that part of section 101, and the question of its continuously conclusive effect upon valuations fixed by the commission, shall come before us as live questions in a pending ease, we will examine them.

III. Complaint (5) relates (a) to an installation charge of three dollars; (b) to an alleged removal charge of fifty cents. These charges were decided by the commission to be unreasonable. The first (a) is called an installation fee, but appellant’s counsel m their briei insist that it is not an installation fee, but is merely a cash deposit required to secure the payment of bills. If the service is continued until the end of the year the subscriber is given credit for tbe amount on tbe last two months of the year. If service is discontinued before the end of the year the deposit is forfeited as being in the nature of an additional charge for short-time service. It is, therefore, merely a pledge which the subscriber puts up to secure his payments. The company by requiring this advance payment secures additional working capital on which it pays no interest. "Whether that is the purpose of the requirement or not, that is the effect. It disregards the principle that a pledgee is always liable to the pledgor for the profit which he receives from the thing pledged. [Houston v. Holliday, 5 Am. Dec. (N. C.) 522; Gilson v. Martin, 49 Vt. 474; Hunsaker v. Sturgis, 29 Cal. 142; Geron v. Geron, 50 Am. Dec. 143.] In giving credit for this amount at the end of the year it seems that the regulation does not add interest to the amount so credited and used by the company for the year. The commission in passing upon this complaint held that the company had a right to adopt reasonable regulations to secure the payment for service, but also held that it was unusual to charge extra for short-time service and that this regulation was unreasonable. In this, it is the opinion of the court that the commission was right. The commission suggested that the company might, if it chose, require of any subscriber three months’ paynient in advance for service, which we think was a very liberal provision for the company. The commission ha's not attempted to make any rule but suggests one which the company might make.

' The other part of this complaint, (b), relating to the rule of the company by which a removal charge of fifty cents is made where there is no such removal of the telephone, but simply where one tenant moves out and another moves in, without additional expense to the company, except the small matter of bóok-keeping, is also unreasonable; and the finding of the commission in that respect was correct.

IV. Complaint (2) was on account of an additional charge of fifty cents per month for use of telephones in private residences where they kept one or more roomers or boarders. This does not apply to fraternity houses and clubs which paid the business rate. The commission held that such charge was unreasonable.

The reason for this additional charge appears in the use of the telephone by students. The evidence shows that every year the students publish a directory containing an alphabetical list of the faculty and the students, with a telephone number opposite the names of the greater number of them. The directory for, 1913-14 contains about three thousand names, most of which are listed against telephone numbers, and a majority of these names are not listed in the company’s directory as telephone subscribers. A majority of the telephone numbers listed in the books have two or more names entered against them. • It appears, too, from the evidence, that the number of calls in Columbia is much greater per station than in other cities of like size, probably owing to the unusual use of the telephones by students.

It is perfectly apparent that the use of this directory gives the person whose name is listed against a number the same telephone service and accessibility to callers as those subscribers have whose names are listed in the company’s directory. The evidence does not show what charge, if any, is made for each additional name to a telephone number. But these roomers receive the same service as the regular subscribers and pay nothing for it to the company. Various legal remedies might suggest themselves to the company whereby they could prevent the use of their telephone numbers in such a. directory except as against the names of subscribers, or could exact pay for such use. The company has resorted to none of these, but has simply adopted a regulation by which it could charge the keeper of a boarding-house something for such additional service.

The commission in sustaining the complaints on this point quotes some testimony from Mr. Hudson, manager of the company, indicating that the use of the telephone by roomers has nothing to do with the charge, but that the charge is made because a rooming-house telephone is used more by the proprietor than an ordinary residence telephone. However, it is quite apparent from all the evidence that the reason for this extra charge is the extraordinary use of the telephone made by the roomers.

Doubtless the students were innocent of any wrong intention in the matter, because it is suggested by appellant that the students required telephone service to' go with what they paid for room rent; that it was difficult to rent rooms without telephone service, and owners of private residences who rented rooms to students made such service an additional incentive to get student roomers. It is probably because the company realized the students paid for this service in their room rent, that it endeavored to place the extra burden where it belonged — upon those who rented rooms to them. Telephone companies may be excused for making more or less arbitrary rate classifications, because of the difficulty of measuring telephone service, and because it is a matter of common knowledge that many persons who are not subscribers use telephones, and at times must do so in order that subscribers may get the full benefit of the service. It is the opinion of this court that the regulation of the company in that regard was quite reasonable and that the ruling of the commission upon that point was erroneous.

The judgment of the circuit court is reversed and the cause remanded with directions to set aside order number two of the commission relating to extra compensation for telephone service to rooming houses,, and to affirm the orders of the commission in all other respects.

Boy, C., concurs.

PER CURIAM.

The foregoing opinion by White, C., is adopted as the opinion of the court.

All of the judges concur.

ON MOTION FOR REHEARING.'

WHITE, C.

In its motion for rehearing and suggestions in support of the same the appellant quotes that part of Section 101 of the Public Service Commission Act quoted in Paragraph 2 of the opinion, with the following additional clause: “And such facts can only be controverted by showing a subsequent change in conditions bearing upon the facts therein determined.”

Appellant argues that under this law as it reads, the valuation of $182,000, as fixed by the commission, is continuously conclusive and “we, of course, will be bound for all time to come by that valuation, as of that date;” it stands with the force and effect of a judgment which, would cause appellant future embarrassment and loss, if the value is too low, and therefore, it is insisted, it is not a moot question presented, but should be passed upon.

Is the section susceptible of a construction which would avoid that result? It provides that: “The commission may from time to time cause further hearings and investigations to be had for ■ the purpose of making revaluations or ascertaining the value of any betterments, . .• . and may examine into all matters which may change, modify or affect any finding of fact previously made, and may, at such time make findings of fact supplementary to those heretofore made.” The section ends with this proviso: “that such findings at such supplemental hearings or investigations shall be considered in connection with and as a part of the original findings except in so far as such supplemental findings shall change or modify the findings made at the original hearing or investigation. ’ ’

These provisions are clearly and squarely in conflict with the part of the section first quoted, to the effect that such original findings shall be conclusive evidence of the fact found and that “such facts can only be controverted by showing a subsequent change in condition. ’ ’

Notice the disjunctive “or” is used in the clause authorizing further hearings for the purpose of “making revaluations, or ascertaining the value of any betterments.” That is, revaluations may be made with or without regard to betterments or changes.

Also notice the wording of the next following provision, “and may examine into all matters which may change, modify or affect any finding of fact previously made and may at such time make finding's of fact supplementary, ’ etc. That is,. the commission may make supplemental findings, but it is not obliged to do so; may confine itself to such “matters as may change,” etc., the findings previously made.

Then by the proviso quoted “such findings,” made at the supplemental hearing or investigation, shall be considered in connection with and as “a part of the original findings, except in so far as such supplemental findings shall change or modify the findings” previously made. If that means anything it means that the findings at such supplemental hearings shall not be considered as a part of the original findings, so far as the new findings change or modify the original, but shall be new, original, and independent findings. That is to say, so far as said supplemental findings relate to betterments, etc., they are added to and become a part of the original finding, hut in so far as they change or modify the original findings, they replace those original findings.

To summarize: The act provides for reexamination and revaluation of the property as it was at the first examination, as well as for the purpose of valuing betterments or changes. This is inconsistent with the provls-' ion that the facts first found cannot be controverted except by showing a change of condition. It provides that on a subsequent investigation, the commission “may examine any matters” (whether examined before or not) “which may change, modify or affect any finding of fact previously made,” and these may replace the original findings. This is inconsistent with the provision that such previous findings shall be conclusive of the facts stated. They could not be conclusive at any time or place.

If that part of this Section 101 first quoted be given its literal meaning, dissociated from other parts of the section, as claimed for it and feared by appellant, the findings of the commission would be “conclusive evidence of the facts therein stated” regarding valuation, in any proceeding, “before the commission or any court,” between the commission and many parties mentioned not parties to this proceeding.

In that case it would be clearly unconstitutional. The Legislature may establish rules of evidence and may provide that proof of a certain character shall be primafacie evidence of a fact sought to be established, but it is clearly beyond the power of a Legislature to prescribe what Shall be conclusive evidence of any fact. [Abbott v. Lindenbower, 42 Mo. 162, l. c. 166; Roth v. Gabbert, 123 Mo. 21, l. c. 28, 31; Railway Co. v. Simonson, 64 Kan. 802; Railway v. Payne, 33 Ark. 816; United States v. Klein, 13 Wallace (80 U. S.), 128, l. c. 146-7; Phillips v. Byrd, 143 Pac. 684; Chicago, M. & St. P. Ry. Co. v. Minnesota, 134 U. S. 418, l. c. 456; White v. Flynn, 23 Ind. 46; Corbin v. Hill, 21 Iowa, 70; Yazoo & Miss. V. Ry. v. Bent & Co., 47 So. (Miss.) 805; Cooley on Const. Lim. (7th Ed.), 526.] Under these authorities the Legislature cannot make any evidence conclusive which is not already so, “in and of itself,” by virtue of its own force, because it would invade the province of the court.

In interpreting a statute the courts give it effect according to its terms, if possible to do so. If an enactment “is fairly susceptible of two or more constructions, that interpretation will be adopted which will avoid the effect of uneonstitutionality, even though it may be necessary, for this purpose, to disregard the more usual or apparent import of the language employed.” [Dorrance v. Dorrance, 242 Mo. l. c. 652.]

We think the section should be given effect by giving it an interpretation which is consistent with its constitutionality. The findings of which the appellant complains are not “continuously conclusive.” and that part of the act which appellant quotes must give way to the more rational interpretation and the evident purpose of the statute as expressed in its other parts.

The motion for rehearing is overruled.

Boy, G., concurs.

PER CURIAM

The foregoing opinion by "White, C., on motion for rehearing, is adopted as the opinion of the court.

All the judges concur.


author: ROY, C. PER CURIAM:

text:
    THE STATE v. JOSEPH GOODE, Appellant.
    Division Two,
    May 29, 1917.
    1. STATEMENT AT CORONER’S INQUEST: Voluntary. The statement made by defendant at the coroner’s inquest into the cause of the death of the person killed by him may be introduced by the State at his trial for murder, if it was voluntary; and if he was subpoenaed to appear at the inquest, and was told by both the coroner and prosecuting attorney that he did not have to make any statement unless he wished to do so, and there is no evidence of imposition, although he was questioned by the prosecuting attorney and was not told that any statement he might make might be used against him, the statement made by him and put in writing and signed by him was voluntary, and no reversible error was committed in permitting the State to put it in evidence at his trial.
    2. SELF-DEFENSE: Instruction: Withdrawal; Revivor. An instruction telling the jury that if defendant voluntarily entered the difficulty with deceased for the purpose of seeking an opportunity to kill him or do him some great bodily injury, “then in such case defendant should not be acquitted on the ground of self-defense, however imminent his danger might afterwards have become,” ignores and excludes defendant’s right of self-defense in view of evidence tending to show his attempt to withdraw from the difficulty. The law is that, although defendant may have brought on the difficulty with the intent to kill deceased, yet if he was attempting to withdraw from the difficulty and was fleeing from deceased in good faith for the purpose of such withdrawal, and if deceased, knowing that he was endeavoring to withdraw from the conflict, pursued him and sought to kill him or do him some great bodily harm, then the defendant’s right of self-defense revived.

      3. EVIDENCE: Prior Violence Towards Person Defended. Previous threats and acts of violence towards the person defended is competent evidence on behalf of defendant. Where deceased threatened his wife (defendant’s mother) with 'an axe and defendant hastily secured a shot-gun and demanded that his father should put down the axe and in a difficulty which followed with shot-guns the father was killed, it was error to refuse to permit defendant to prove by his mother that deceased, about eighteen months prior to his death, in a fit of passion, struck his wife, threw her on a bed and was choking her when pulled off by an elder son; and that defendant was present and saw it.
    4. DEFENDANT AS WITNESS: Instruction: Credibility. An instruction telling the jury that defendant is a competent witness in his own behalf, “but in determining what weight you will give to his testimony you may consider the fact that he is the defendant, on trial, and testifying in his own behalf,” is erroneous under the ruling in State v. Finkelstein, 269 Mo. 612.
    Appeal from Texas Circuit Court. — Hon. L. B. Woodside, Judge.
    Reversed and remanded.

      Hiett ds Scott, Lamar & Lamar and T. J. Hale for appellant.
    (1) (a) Defendant’s statement at the coroner’s inquest was not a voluntary statement and should not have been admitted in evidence. State v. Young, 119 Mo. 517-522; State v. Naughton, 221 Mo. 398; State v. Thornton, 245 Mo. 440; State v. Thomas, 250 Mo. 211; State v. Motsinger, 180 S. W. 856. (b) If this statement was permitted to go before the jury, then defendant was entitled to an instruction submitting the question to the jury of whether or not such statement was a voluntary statement. State v. Thomas, 250 Mo. 215. (2) The court should have permitted Mrs. Goode to testify concerning the former assault upon her by the deceased in the presence of the defendant. The defendant had the same right under the law to defend his mother that he had to defend himself. R. S. 1909, sec. 4451; Kelly’s Orim. Law (2 Ed.) p. 462, sec. 523; 21 Cyc. 826d-893; 21 Cyc. 972e; State v. Wilson, 250 Mo. 330; State v. Felker, 27 Mont. 451; State v. Foster, 102 Tenn. 33; State v. Sinclair, 250 Mo. 290; State v. Turner, 246 Mo. 617. (3) The court erred in giving Instruction 3 for the State. This is a palpable comment on the defendant’s evidence. State v. Finkelstein, 269 Mo. 612; State v. Evans, 267 Mo. 163; State v. Mintz, 246 Mo. 540. (4) Instruction 4, given by the State, should not have been given because there is no evidence on which to base such an instruction. State v. Larkin, 250 Mo. 245; • State v. Elsey, 201 Mo. 561; State v. Bartlett, 170 Mo. 672; State v. Little, 228 Mo. 309. The uncontradicted evidence shows that defendant was running and being pursued by his father when the fatal shot was fired. If he had withdrawn in good faith from the difficulty and was fleeing, and was pursued, the right of self defense revived, although he had voluntarily brought on the difficulty. This instruction ignored this right and practically deprived the defendant of all right of self defense. State v. Wilson, 242 Mo. 499; State v. Heath, 237 Mo. 267; State v. Heath, 221 Mo. 589; State v. Cable, 117 Mo. 385; State v. Partlow, 90 Mo. 627; State v. Lockett, 168 Mo. 480; State v. Little, 228 Mo. 306; State v. Rapp, 142 Mo. 443; State v. Adler, 146 Mo. 18; State v. Sebastian, 215 Mo. 58. (5) (a) The evidence is not sufficient to sustain a conviction.. Under the undisputed evidence, the killing was justifiable, and this court should not only reverse the case, but direct the discharge of the defendant on the ground that the evidence clearly shows that the killing was justifiable. State v. Bartlett, 170 Mo. 670; State v. Hogan, 164 Mo. 654; Remarks of Gantt, J., in State v. Talmage, 107 Mo. 572. • (b) If defendant and his mother are believed, then their testimony shows beyond question that the killing was in self-defense. If their testimony is not believed, then there is nothing left but conjecture as to how it did occur. A verdict based upon mere suspicion or conjecture will not be permitted to stand. State v. Gordon, 199 Mo. 596; State v. Francis, 199 Mo. 693.

      Frank W. McAllister, Attorney-General, and Lewis H. Cook, for the State.
   ROY, C.

Defendant was convicted of murder in-the second degree and his punishment was fixed by the jury at ten years in the penitentiary. He has appealed.

On August 9, 1915, defendant shot and hilled his father, Fount Goode. Defendant’s parents were married in 1887, and had seven children, most of whom were away from home. The defendant was twenty years old and married. He and his wife were living with his parents.

The evidence tends to show the following facts:

In the father’s absence the mother and son cut down two plum trees in the yard near the garden. When the father came home in the evening and discovered what had been done he became angry, and dug up some rose bushes and a spirea and threw them out in the road. The mother proceeded to reset the roses, when the father picked up an ax and threatened her with it. The defendant rushed into the house and came back with a shot-gun, and demanded that’ his father should put down the ax. The father went into the house with the ax and soon after disappeared. He went barefoot and hatless to a neighbor ’s about three-fourths of a mile distant. The defendant, suspecting that his father had gone for a gun, stood on watch by a machine shed across the road from Nthe house. About dark the father was seen coming with a shot-gun. The defendant told him to “stop.” The father fired, one shot hitting defendant’s leg, and another the temple, lodging near the ear. The defendant returned the shot and ran, the father pursuing him. The defendant recharged his gun with a shell as he ran and shot his father, killing him. As to the reason why he shot the last time, defendant testified:

“Well, when I turned and looked back he threw up his arms like this (indicating) to shoot again, and I turned and shot.” .

He further testified that his father was about thirty yards from him, and that he shot because he thought his father was raising his gun to shoot him.

There was some evidence as to previous threats by defendant against his father.

The defendant was by the State subpoenaed as a witness at the coroner’s inquest. The statement made by him on that occasion, put in writing, and signed by him, was read in evidence at the trial over defendant’s objection. There was evidence at the trial that the defendant was told by both the prosecuting attorney and the coroner at the inquest that he did not'have to make a statement unless he wanted to do so. The evidence further showed that defendant was questioned by the prosecuting attorney while he was making such statement. He was not there told that any statement he should then make might be used against him. There was no evidence of any imposition upon the defendant, or of any improper conduct towards him by the coroner or prosecuting attorney or- any one else at the inquest; nor was there any evidence tending to show that such" statement of defendant was not purely voluntary on his part.

During the trial the defendant offered to prove by his mother that the deceased, about a year or a year and a half prior to his death, in a fit of passion, struck his wife, threw her on the bed, and was choking her and was pulled off by an older son, and .that the defendant was present and saw it. The defendant when making said offer stated that it was for the purpose of. showing that defendant had reasonable cause to apprehend that his father would do his mother some personal injury. Such offer was objected to by the State and the objection was sustained.

The court, among the instructions for the State, gave number 3, as follows:

“The defendant is a competent witness in his own behalf and his testimony should be considered by you in making your verdict, but in determining what weight you will give to his testimony you may consider the fact that he is the defendant, on trial, and testifying in his own behalf. ’ ’

Instruction 4 for the State was as follows:

“If you find from the evidence in this case that the defendant willingly and voluntarily entered into the difficulty with the deceased, Fount Goode, for the purpose and with the intent of seeking an opportunity in such difficulty to kill the said Fount Goode, or do him some great bodily injury, then in such case he should not be acquitted on the ground of self-defense, however imminent his danger might afterwards have become in such difficulty. ’ ’

I. There was no error in the admission in evidence .of defendant’s statement made at the coroner’s inquest. The question of the competency of such statement was thoroughly discussed in State v. Young, 119 Mo. 495, where it was said (l. c. 519):

“The great question aftér all is, was the statement voluntary; and it must be determined from the facts m each case.”

In that case, as here, the defendant was subpoenaed before the coroner, but in that case the defendant, so far as it appears, was not told that he need not make any statement unless he wished to do so; but on the contrary the court said: “The defendant was not suffered to make one statement of his own suggestion and accord.”

Surely the fact that defendant was subpoenaed before the coroner was entirely nullified by the action of the officers in assuring him that he was under no compulsion to make a statement.

II. Instruction 4 given for the State is not the law in this case. It ignores and excludes the defendant’s right of self-defense. Although he may have brought on the difficulty with the intent to kill his father, still, if he was attempting to withdraw from the and was fleeing from his father in good faith for the purpose of such withdrawal, and if his father, knowing that defendant was endeavoring to withdraw from such conflict, pursued defendant and sought to kill him, or do him some great bodily harm, then the defendant’s right of self-defense revived. There being evidence in this case tending to show an attempt on'the., part of the defendant to withdraw from the difficulty it was error for the court by that instruction to exclude that question from the consideration of the jury as was done by that instruction.

III. The exclusion of the evidence offered by defendant to show previous acts of violence on the part of Fount Goode towards his wife was error. In State v. Wilson, 250 Mo. l. c. 329, it was held that previous threats and acts of violence by the deceased towards the accused may he shown in evidence.,

The Cyclopedia of Law and Procedure says, Vol. 21, p. 972: “Every fact which would he competent to establish justification in the ease of a person killing another in self-defense is competent to establish it in the case where the killing was done in defense of another. Thus defendant may show that deceased was assaulting or attacking the person defended; that deceased entertained hostile feelings toward, and had made threats against, and assaults on the person defended.” [See also State v. Felker, 27 Mont. 451, and Foster v. State, 102 Tenn. 33.]

IY. Instruction 3 given for the State on the subject of weight to he given defendant’s evidence, under the ruling in State v. Finkelstein, 269 Mo. 612, is error.

The judgment is reversed and the cause remanded.

White, G., concurs.,

PER CURIAM:

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

All of the judges concur.


author: FARIS, J.

text:
    THE STATE v. FRED WANSONG, Appellant.
    Division Two,
    May 29, 1917.
    1. FELONIOUS ASSAULT: Use of Deadly Weapon: Presumption of Intent. In the prosecution of a defendant for an assault with intent to kill, it is not error to instruct that an intent to kill arises from an intentional striking upon a vital part with a deadly weapon. The rule is exactly the same in such a case as it is in mur- . der cases. As a matter of law a presumption of murderous intent should be indulged from the fact that defendant or his co-conspirator struck .the prosecuting witness upon the front and back of the head with a four-foot stick of oak cordwood and crushed his skull.
    2. CIRCUMSTANTIAL EVIDENCE: Failure to Instruct. If the defendant neither in his motion for a new trial nor in his exceptions to the instructions as given mentioned the failure of the court to instruct on circumstantial evidence, his complaint on appeal that the court failed to so instruct will not be considered.
    3. CONFESSION: Instruction: Comment Upon Evidence. An instruction telling the jury that what defendant in a written confession said against himself the law presumes to be true because said against himself, what he said for himself you are not bound to believe, but may believe or disbelieve as it is shown to be true or false by the' evidence in the case, is not erroneous as a comment on-the evidence.
    4. INTENTION TO ASSAULT: Mistaken Identity of Person Assaulted. Where defendant lay in wait with the intention to assault the driver of a milk wagon, whom he thought to be Peterson, but who - turned out to be Willy, and whom he did assault, it cannot be held that he did not intend to assault Willy. There was no mistake as to intent; it was only a mistake as to the identity of the intended victim.
    Appeal from St. Louis City Circuit Court. — Hon. Rhodes E. Gave, Judge.
    Affirmed.

      Campbell Cummings for appellant.
    (1) The entire evidence was insufficient to support the verdict of guilty of the felony charged, assault with intent to kill, and the judgment should he reversed and appellant ordered discharged. When two or more persons conspire to fight another with their fists and one resorts to the use of a deadly or dangerous weapon without the other’s knowledge or consent, the other cannot he held responsible. State v. May, 142 Mo. 153; Kelley’s Crim. Law (3 Ed.), sec. 49, p. 49; 8 R. C. L., p. 226, sec. 222. (2) A person is not guilty of an assault by reason of the mere fact that he is even present when it is committed, or that he does not take steps to prevent it, or that he has knowledge of it, or that he approves it; hut he must have done some act by way of aid or encouragement. There was no evidence that appellant was present at the time of the felonious assault or that he was ready to aid, if necessary. There was no evidence that appellant was at any time acting in pursuance to a conspiracy to commit the felonious assault, hut it could only he claimed as tending to prove an assault and battery. 5 Corpus Juris, p. 758, sec. 260; State v. Melvin, 166 Mo. 573; State v. Valle, 164 Mo. 551; Willi v. Lucas, 110 Mo. 222. (3) There is no question of abandonment of the, felony in the case, inasmuch as there is no evidence that appellant ever entered into an agreement or understanding to commit a felonious assault: When he learned there was contemplated a felonious assault, instead of an assault and battery, he went no further; he withdrew before it took place. Authorities supra; Kelley’s Crim. Law (3 Ed.), sec. 49, p. 49; 2 R. C. L., p. 533, sec. 9 and p. 545, sec. 25. (4) If there can he claimed to he- any evidence that appellant committed the felony or that he advised or aided in its commission, such evidence would he entirely circumstantial, and yet no instruction on circumstantial evidence was given. Such an instruction could not he on a collateral issue and it was error in the trial court not to have given it on its own motion. State v. Conway, 241 Mo. 282; State v. Valle, 164 Mo. 551; State v. Gooch, 105 Mo. 392; Willi v. Lucas, 110 Mo. 222; 2 R. C. L., p. 527, sec. 4; 10 R. C. L., p. 1007, sec. 196. (5) The court erred in giving the instruction on the confession. State v. Shellman, 192 S. W. 435; State v. Finkelstein, 191 S. W. 1002; State v. Creeley, 254 Mo. 382.; State v. Barrington, 198 Mo. 125 (1. c.); Stetzler v. St. Ry. Co., 210 Mo. 704; Zander v. Transit Co., 206 Mo. 461; Clay v. State, 15 Wyoming 64; Welsh v. State, 96 Ala. 92; McLemore v. State, 164 S. W. 119; 17 Cyc. 806; Worley v. Dryden, 57 Mo. 233. (6) The defendant should have been prosecuted under Sec. 4483, R. S. 1909, and not under Sec. 4481, R. S. 1909, for the evidence discloses that if an assault with intent to kill was intended the assault was contemplated upon one Peterson, and not upon the person charged in the information to have been assaulted. Kelley’s Crim. Law & Prac., (3 Ed.), see. 6; State v. Mulhall, 199 Mo. 202; State v. Williamson, 203 Mo. 591; Lacefield v. State, 34 Ark. 280; Horton v. People, 47 Col. 252; Johnson v. State, 53 Fla. 45.

      John T. Barker, Attorney-General, and Lee B. Ewing, Assistant Attorney-General, for the State; James Billings of counsel.
    The instruction on involuntary confession and voluntary statements is correct and proper. Conley v. State, 12 Mo. 462; State v. Howell, 117 Mo. 307. The defendant complains in his motion for new trial that the co'urt failed to instruct upon all questions arising in the case. This complaint presents no ^question for review. The issues under the,evidence are properly presented by the instructions. The defendant is obliged to point out in his motion for new trial the facts or theory upon which the court failed to instruct. State v. Laycock, 141 Mo. 274; State v. Paxton, 126 Mo. 500.
   FARIS, J.

Defendant was convicted in the circuit court of the city of St. Louis for assault with intent to kill one Herman Willy. His punishment was fixed by the jury at imprisonment in the penitentiary for a term of two years. From the resulting sentence he has appealed.

Defendant and one George Hunck (tried jointly with defendant and convicted, and likewise given two years in the penitentiary, but who died, as the brief herein avers,. pending this appeal), were employed as drivers for the Jersey Farm Dairy Company until a milk-drivers’ strike was called, whereupon they quit and joined the strikers. Herman Willy, the prosecuting witness, is a baker by trade, but at the time of the assault he was employed as helper by the above named company and temporarily engaged in delivering milk. While making a delivery of milk at the bakery of one Simon on Sidney Street in the city of St. Louis, about 3:30 or 4 o ’clock on the morning of the 16th of February, 1915, he was struck with a heavy stick of oak cordwood on both the front and back of his head and most dangerously and seriously hurt and wounded. _ '

The evidence produced on the part of the State tends to show that defendant, in company with said Hunck and an unknown man (likewise a striker, and who is referred to in the record simply by the name of “Jack”), went to the bakery of said Simon about two o’clock on the morning of the assault. Hunck went inside and engaged Simon in conversation; defendant and Jack remained outside of the shop in a dark hallway or alley. Hunck, who was well known to Simon, endeavored to persuade the latter to quit buying milk from the Jersey Farm Dairy Company. Simon refused, and he was then told by Hunck that they had come there for the purpose of lying in wait for the driver of the milk wagon, whom they believed to be one Peterson, and “beat him up.” Simon protested that he did not want the “job pulled off ” in his place, but Hunck assured Simon that the latter would see nothing and hear nothing — thus by inference complimenting the artistical touch with which the purposed assault would be performed. After talking with Simon for some time, one of the two men who were waiting outside (and who Simon first says was defendant, but is afterward doubtful on this point) came to the door and called to Hunck to hurry up, that they were freezing to death outside. Hunck then took a drink of whiskey with Simon and a helper of the latter, and joined the men outside in the dark hallway. Later, and only some fifteen minutes before the assault took place, defendant again came to the door and asked Simon if he had any pies; upon receiving an affirmative reply, defendant bought and paid for two pies; one of which he ate and the other he gave to Jack.

Defendant is positively identified by Simon as the man who purchased the pies. Moreover, defendant admits this in a confession which some four or five police officers say he made. Shortly after this, and as stated only some fifteen minutes thereafter, Simon heard the milk wagon coming and heard it stop. Immediately thereafter he heard the cries of the prosecuting witness Willy out in the hallway. He hurried out to him and found him leaning against the wall in a dazed condition and bleeding about the head, and observed a large stick of oak cordwood, about four feet long, lying in the hallway near him. None of his assailants was visible at this time. Willy was taken to the.hospital, where he lay unconscious for some seventy hours, suffering from a very serious fracture of the skull, from which he was weeks in recovering sufficiently to -permit his leaving the hospital. In fact, at the time of the trial he had not then fully recovered,' and the record makes it- a serious question whether he is not horribly and permanently injured.

Defendant and said Hunck (the latter having in the meantime gotten into some fresh trouble) were arrested in the afternoon. Each made a statement as to his participation in the events above set out as occurring at the bakery, which statements corroborate largely the testimony of the State’s witnesses. Defendant confessed that it was agreed that said Hunck, Jack and himself should go to the bakery and lie in wait for the driver of the milk wagon, whom they believed to be one Peterson, and “get him;” that Hunck had told him that he knew of a quiet place about Sidney Street where they could get Peterson. Upon arriving at the rendezvous Hunck went inside and had the conversation, which we have referred to, with the baker Simon, while defendant and Jack remained outside in the dark hallway. Defendant says in his confession, in describing the preparation for the assault on Willy, that “Jack first went and got a rock,” but later discarded that as not being sufficiently lethal for his needs, and went and got a four-foot stick of oak cordwood and asked defendant to “lift that.” Whereupon defendant lifted it and asked Jack what he was going to do with that and if he intended to kill the fellow; that Jack replied that he “didn’t care whether he did or not.” Defendant further says in his confession that he then bought the pies which he and Jack ate, and that after waiting with the latter until nearly four o’clock, he heard the milk wagon coming and ran away before the driver was assaulted. Defendant, it will be noted, does not admit that he was present at the time of the assault, or that he knew anything about what took place after he ran, just as the wagon was driving up. He says, however, that he left Jack behind. He admits that Hunck, Jack and he went to the bakery for the purpose of lying in wait for and getting” the driver and “beating him up.”

The evidence upon the part of the appellant tends to show that he and Hunck went to the bakery merely for the purpose of affording Hunck an opportunity to see Peterson and try to get him off the wagon and to see Simon and endeavor to prevail upon the latter to quit taking milk from the Jersey Farm Dairy Company. He denies in his testimony, in effect, all that he had said in his confession, and swears that neither Hunck nor he had arranged for any assault to be made upon anyone, but that Jack and two or three others remained at the Simon bakery after he and Hunck had left. Defendant admits the purchase of the pies from Simon and in this corroborates Simon upon the question of defendant’s identity as one of the persons waiting in the hallway. He reiterates in his sworn testimony the statement of his confession that he left the bakery before the milk wagon arrived, and swears in contradiction of his confession that he left the bakery a long time before the milk wagon came.

Both defendant and Hunck testifying in the case, say that they were beaten by the police and compelled by physical mistreatment to sign the confessions offered in evidence. Defendant says he was badly beaten and bruised by the police before he signed the confession, and upon this point offers some little corroborating testimony from two or three of his co-strikers as to the condition of his face and the marks upon it. Upon this point, both as to the condition of his face and as to the question of physical force being used to compel him to make a confession, he is overwhelmingly contradicted by some five or more police officers.

The points upon which defendant relies for a reversal will be found in our discussion, and such further testimony and statement of facts as shall serve to make these contentions and our discussion clear, will be found set forth therein.

I. Defendant complains that so much of the following instruction, given upon the trial over his objections, as we copy below, is erroneous, to-wit:

“You are. further instructed if you find from the evidence that the defendants, acting jointly with a common intent or either one acting alone, did assault and wound the said Herman Willy with a deadly weaPon> to-wit, a weapon which as used was likely to produce death in a vital part of of the body of the said Herman Willy, without just cause or provocation, then, unless the facts and circumstances in evidence satisfy you to the contrary, the law will presume and you should so find that the assault was made with malice aforethought and with intent to kill, by the defendants so acting jointly with a common intent, or by either one so acting alone. Whether the piece of wood as used was a deadly weapon, and whether such weapon was used in such a manner and with such intent by the defendants, or either of them, on the occasion under consideration, are matters to be determined by you from all the facts and circumstances in the case.”

The burden of defendant’s contention and his chief complaint is that no presumption of intent is* by law allowable, or is justly to be drawn from the use by defendant of a deádly weapon upon a vital part of the body of him who is assaulted. This court has repeatedly, held against this contention of defendant. [State v. Schloss, 93 Mo. 361; State v. Hall, 85 Mo. 669; State v. Davis; 226 Mo. 493; State v. Silva, 130 Mo. 440; State v. Patterson, 116 Mo. 505; State v. Holme, 54 Mo. 153; State v. Underwood, 57 Mo. 40; State v. Ruck, 194 Mo. l. c. 431; State v. Foster, 61 Mo. 549; State v. Alexander, 66 Mo. 148; State v. Walker, 98 Mo. 95; State v. Doyle, 107 Mo. 36; State v. Fairlamb, 121 Mo. 137; State v. Grant, 144 Mo. 56; State v. John, 172 Mo. 220; State v. Webb, 266 Mo. 672; State v. Keener, 225 Mo. l. c. 496.]

While it is probable that some of the above cases wherein an instruction similar to the one here attacked was given, were murder eases, in what does the distinction lie? An intent to kill is a necessary element of murder and to constitute murder an intent to kill must be proved directly, or be presumed from the facts of the ease; likewise and to the same degree precisely in a case of assault'with intent to kill, must the intent to kill be proved or be presumed from the facts. In short, there is no distinction to be drawn touching the element of intent in the two eases. It is the identical element in each, and identically the same presumption is to be drawn whenever a deadly weapon is intentionally used upon a vital spot of the body by another. Of course, if there is countervailing proof raising an issuable fact as to the intent, e. g., that the act was accidental or that it was in self-defense ánd only the necessary modicum of force was used, or intended, or other fact negativing intent, then such issuable fact ought to be submitted to the jury, and no presumption should be entertained about the matter, for in such case there is not room for presumptions. Likewise would this be the rule if the cases were murder. [State v. Swearengin, 269 Mo. 177.] If however, in the instant case (as well as in all other eases, similar as to their facts), no presumption of intent arises as a matter of law from the facts of an intentional striking in a vital spot with a deadly weapon, then we must instantly and inevitably allow defendant to go acquit. For unless we are allowed as a matter of law to indulge a presumption of murderous intent from the fact that defendant (or his co-indictee, whom he was aiding and abetting) struck the prosecuting witness upon the front and back of the head with a four-foot stick of oak cordwood, “which as used [that is, used in a manner which crushed his skull and rendered him senseless for 70 hours] was likely.to produce death,” then.there is wholly absent all proof of felonious intent in this case and the conviction for a felony cannot stand. Cases may be found wherein such an instruction would be error; but all such we opine, will be found to fall into the category of cases wherein there was countervailing proof of facts which negatived the alleged intent to kill and wherein upon such countervailing proof an issuable question arose which itself called for an instruction. No such issues arose upon the trial of the instant case, so we have no hesitation in disallowing the contention of the defendant.'

II. Defendant complains that the court erred in failing to instruct on circumstantial evidence. If this was error under the facts here, no proper preservation of it was made in the record, for the reason that defendant neither in his motion for a new trial nor in his exceptions to the instructions as given mentions any failure to instruct on circumstantial evidence. [State v. Sykes, 248 Mo. l. c. 712; State v. Sydnor and Foster, 253 Mo. 375; State v. Douglas, 258 Mo. 281; State v. Pfeifer, 267 Mo. 23.] He did not except to the failure of the court to instruct on all of the law of the case, or to fully instruct the jury, but contented himself with excepting to the specific instructions as given. That is not sufficient. [State v. Gifford, 186 S. W. l. c. 1060; State v. Douglas, supra.] In the case of State v. Gifford, supra, we took occasion to say:

“But we are precluded from examining this point in this case for the reason that defendant’s sole assignment of error in his motion for a new trial upon the point now urged is thus stated:
“ ‘The court erred ... in not declaring all the law in this case necessary for the information of the jury in arriving at their verdict. ’
“This is not a sufficiently specific assignment of an error urged here as being bottomed upon the giving by the court nisi of an erroneous instruction, or for the failure of the court to give any requisite instruction. [State v. Taylor, 267 Mo. l. c. 48; State v. Levy, 262 Mo. l. c. 190; State v. Sykes, 248 Mo. l. c. 712; State v. Dockery, 243 Mo. 592; State v. Wellman, 253 Mo. l. c. 316; State v. Chissell, 245 Mo. l. c. 554; State v. Horton, 247 Mo. l. c. 663.] The trial court is to be allowed the last clear chance to correct its own errors, and thereby, perhaps, save the delay and expense of an appeal.
“The above cases and many others which we might cite but follow the analogous statutory rule in civil cases, which requires motions to be specific (Sec. 1841, R. S. 1909), and they accentuate the idea that at some stage of the trial of a criminal case the defendant is saddled with the duty of taking the trial court measurably into his confidence. ’ ’

It may well be that upon the facts shown in eviden.ee defendant was not as a matter of right entitled to an instruction on circumstantial evidence. We are urged to so declare'. But since this is a close question, and since we dispose of the contention upon other grounds, we need not and do not pass on this mooted question. For the reason set out we disallow this contention.

III. Upon the weight to be given to the alleged confession of defendant and said George Hunck, who was tried with him, the learned trial court instructed the jury thus:

“You are further instructed that if you find from the evidence in this case that after the defendants, or either of them, had been arrested and accused of committing the offense for which they are now on ^ or either of them, were in the custody of the officers of the law who placed them under arrest, either of them made any statement to such officers, either orally or in writing, regarding the commission of said offense, and if yon further find that such statement was procured from him by coercion, threats or through fear, and that hut for such coercion, threats or fear such defendant would not have made such statements, then you are instructed to disregard such statements as evidence in the case.
“Before any confession or statement can he received as evidence in a criminal case, it must he voluntarily made by the accused, and if not so made then such confession or statement should be rejected by the jury, and not considered in passing upon his guilt or innocence.
“If, however, you find and believe from the evidence that the defendants, or either of them, made any voluntary statement or statements, in relation to the offense charged in the information, after such offense is alleged to have been committed, the jury must consider all that each one said together and what one of them said, if anything, cannot be used against the other unless assented to or acquiesced in by the other; and while each one of said defendants is entitled to what he may have said for himself, if true, the State is entitléd to anything he said against himself in any conversation proven to your satisfaction by the State. What each defendant said against himself, if anything, the law presumes to he true because said against himself. What he said for himself you are not hound to believe, because said in a statement or statements proved by the State, hut you may believe it or disbelieve it, as it is shown to he true or false by the evidence in the case. It is for you to consider, under all the circumstances, from the evidence, how much of the whole statement or statements of the defendants proved by the State is worthy of belief.”

Against the last paragraph of the above instruction defendant’s learned counsel argues ably and forcibly, for that it is a comment upon the evidence. This contention has been made repeatedly here. Nevertheless we have never in a criminal case held it to he error. We have occasionally, in cases wherein the admissions said to have been made- were oral, severely criticised the giving of it, but contented ourselves with the criticism. In no case which we have found, or to which our attention has been called, have we held the giving of it reversible error, [State v. Creeley, 254 Mo. 382; State v. Powers, 255 Mo. 263.]

Learned counsel for defendant speak of it as an admission against interest. It is that and more; it is a confession. Here absent the discussed infirmity arising from the witnesses ’ likelihood to forget, or inaccurately relate, what was said in State v. Creeley, supra, does not apply, for what the defendant said — if he said anything, and that the jury are to find — was written down at the time and in his presence and signed by him. The case of State v. Finkelstein, 269 Mo. 612, is called to our attention as being an authority which by overwhelming analogy states a rule which should control this aspect of the instant case. The above case has already been urged upon us as a panacea for a multitude of legal evils. If the Finkelstein case could further speak it might well paraphrase the sarcastic lines of Shakespeare and say: The law is out of joint; oh cursed spite, that ever I was born to set it right. Unless we are now to overrule all the rest of the criminal law, we are not disposed to allow this contention.

IV. It is urged that inasmuch as defendant believed that one Peterson was the driver of the milk wagon; that he did not know the man Willy who was actually struck; ^at never saw him, as defendant swears, till he saw him in the court room at the time of trial, and that he did not intend to assault Willy, but was lying in wait for and intended to assault Peterson, he cannot be convicted for an assault with intent to kill Willy, touching whom he had no felonious intent whatever.

Unfortunately the. facts will not permit the deductions above drawn by defendant. The facts show he did intend to assault the identical person who was assaulted; he merely believed him to be Peterson. It was not a mistake as to the intent; it was merely a mistake as to identity of Mm as to whom the intent was harbored. He intended (the jury so found, and therefore in the argument we may so assume) to strike the identical person he did strike, believing him to be some other person. The statement of the contention in juxtaposition with the true facts, shows without the necessity.of citing authority or further discussion, the error of it. It would be a dangerous doctrine to write into the law, if we were to hold that A should go acquit, if lying in wait to rob X, who is a bank cashier, in the act by mistake, believing Z, an inmate of the poor house, to be X, he shoots and wounds or kills the latter. The bald statement of the contention condemns it.

Y. The point is urged that there is no substantial evidence upon which to sustain the conviction of the defendant. Upon this point it is enough to say that we have set forth in' our statement of the facts a brief resume of the proof offered by the State in the case. We will cumber the books with a reiteration of it. Suffice it to say that in our view it fully justified the verdict rendered. Indeed, we may say in disallowing this contention, that the proof of guilt offered was far stronger than that we have lately been called on to weigh upon this precise contention, in sev.eral cases wherein we held the evidence sufficient. [State v. Taylor, 261 Mo. 210; State v. Concelia, 250 Mo. 411.]

Other points made in the brief have been examined, but we find no merit in them. Let the case be affirmed.

All concur.