author: BROWN, J.

text:
    THE STATE v. JOHN McBRIEN, Appellant.
    Division Two,
    July 6, 1915.
    1. APPEAL: Brief: In Criminal Case: Failure to Comply With Rules. It is the statutory duty of the appellate court in a criminal case to read the transcript' for the purpose of ascertaining if error prejudicial to defendant was committed at his trial; and hence, if his brief does not comply with the rules, he is in no worse condition than he would be had he filed no' brief at all.
    2. -; indefinite Assignment. The statute (Sec. 5285, R. S. 1909) provided that the motion for a new trial in a criminal, case “must set forth the grounds or causes therefor,’’ which means that the motion must set forth the alleged errors in such definite and specific language that they may be readily understood.
    3. -: -: As to Instructions. The motion for a new trial should so point out alleged errors in the instructions given that the trial court may ascertain wherein they infringe upon the law. It is not sufficient to say in the motion that “the court erred in improperly defining the issues of the case in its instructions,” or that “the instructions given are a comment on the evidence,” or that “the instructions given are misdirecting.”
    4. FALSE PRETENSE: Indictment: Ownership of Property. An indictment charging that the defendant with a design to cheat and defraud the Farmers Bank of $150 “to the said Farmers Bank then and there belonging,” did make the false representations stated, and that the bank did loan and pay over to defendant the aforesaid sum of $150, sufficiently charges that the $150 -was the property of the Farmers Bank.
    6. -: -: Sufficient Allegations. An indictment charging that defendant falsely represented to the cashier of the Farmers Bank that he and his wife owned seventy-five head of unincumbered beef o-ttle worth $3000, and that they were not indebted to the St. Fi^n^u-s County Bank, nor to any other person, except to said Farmers Bank and a few other persons in small amounts, and that by said representations he deceived and obtained a loan from said Farmers Bank of $150, whereas in fact he and his wife owed said St. Francois County Bank $9000 and other persons $2500 on current account, stated a valid charge against defendant of obtaining money by false pretense.
    6. -: Change of Venue: Prejudice of Inhabitants. If prejudice against a person accused of crime exists among the inhabitants of a county to such a degree as to prevent the selection of an impartial jury, whatever may be the cause of its existence, a change of venue should be awarded, if applied for. In spite of the fact that prejudice against him may exist among the people of the county, it may still be possible to secure an impartial jury; but where several of the most intelligent and influential citizens are actively at work augmenting that prejudice; there is testimony, undenied and unimpeached, that the cashier of one of the banks which had lost money on defendant, who is being tried for obtaining money by false pretense from one of them, had tried to induce a witness not to testify for defendant at his trial, that the president of another bank had refused to speak to another witness since his testimony in a former trial, and that those banks were actively using their influence to create prejudice against defendant and possessed great influence throughout the county, the court abused its discretion if it refused to allow defendant’s application for a change of venue.

      7. -: Proof: Obtaining Money for Another. A charge that defendant by false pretense obtained a loan of $150 from a bank and was paid that amount, is not sustained by proof that the money was credited to his wife on the books of the bank.
    8. -: -:' Felony or Misdemeanor. The defendant, upon behalf of his wife, applied to a bank for a loan of $150, and gave to the bank a note for that amount signed by himself and his wife. Twenty-five dollars of the amount was paid at the time to defendant, and the balance, less three dollars interest, was credited to his wife upon the books of the bank. The cashier of the bank testified that at a later date he paid to defendant $10 upon a check which defendant drew upon his wife’s account, to which he signed her name. Defendant testified that he obtained $25 at the time the loan was made, but denied that out of that loan the bank subsequently paid him an additional $10. The indictment charged that the bank was deceived by defendant’s false representations into making the loan, and that the whole $150 was obtained by and paid over to defendant. Held, that the defendant cannot be legally convicted of a felony if, by false pretense, he obtained credit "for his wife for more than $30; that if he obtained for himself, by false pretense, $30 or more, he was guilty of a felony, and if less than $30 he was guilty only of a misdemeanor; and there being conflicting evidence as to'whether he obtained more or less than $30, the trial court erred in failing to specifically inform the jury by a proper instruction that if they found that defendant had obtained from the bank an aggregate sum of less than $30 they should assess his punishment at imprisonment in the county jail, etc.
    9. -: Argument to Jury: Other Frauds. It was reversible error for the State’s special counsel, in his argument to the jury, unrebuked, to say that defendant, on trial for obtaining money by false pretense from a bank, “was defrauding a Dutch farmer out of $500,” where there was no evidence that the loan obtained from the farmer was due, or was unsecured, or was in anywise tinctured with fraud.
    Appeal from St. Francois Circuit Court. — Hon. W. N. Evans, Judge.
    Reversed and remanded.

      8. P. Bond, 8. 8. Bass, Jasper Burhs and Felix 0. Poston for appellant.
    (1) The indictment is bad in the following particulars: First, there is no positive, direct or specific averment or allegation anywhere in the indictment, that the appellant obtained any money, property or effects from the bank, that is declared in specific and direct terms to be the money or the property or effect of the bank. Ownership of property must be specifically alleged; it will not be inferred. Monlie v. Florida, 37 Fla. 321; State v. Ellis, 119 Mo. 437; Bishop, Direction and Forms, sec. 420 (note); State v. Blizzard, 70 Md. 385; State v. Lathrop, 15 Vt. 279; State v. Miller, 153 Ind. 229; State v. Clark, 141 Iowa, 297; "Washington v. State, 41 Tex. 583. Second, the negativing - clauses of the indictment allege the existence of liens and encumbrances upon seventy-five head of neat cattle and personal property and upon certain alleged lands. The alleged instruments constituting the liens and the encumbrances upon the cattle, personal property and lands should be fully set out and described. State v. Stowe, 132 Mo. 199; State v. Hubbard, 170 Mo. 346; State v. Marion, 235 Mo. 359; People v. Winner, 80 Hun (N. Y.), 130; State v. Barbee, 136 Mo. 440. The allegation of the indictment “believing said false pretenses, etc., to be true, and relying thereon, and being deceived thereby, was and were induced by reason thereof, to loan and pay over to John McBrien,” is clearly insufficient. State v. Hubbard, 170 Mo. 346; State v. Kelley, 170 Mo. 151; State v. Phelan, 159 Mo. 122; State v. Johnson, 154 Mo. App. 265. Third, a promissory note payable in ninety days from date, is alleged to have been given for the one hundred fifty dollars alleged to have been obtained by means of false pretenses by appellant. The indictment should allege as a material fact, that the note was not paid. A material fact is one necessary to be proven. The note was set out in the indictment in part. Its nonpayment worked and completed the crime, if any. The fact of non-payment should have been alleged. State v. Clay, 100 Mo. 571; State v. Barbee, 136 Mo. 440; State v. Saunders, 63 Mo. 482; State v. Phelan, 159 Mo. 122; State v. Plagan, 164 Mo. 654. Fourth, the negativing clauses of the indictment are not distinct and certain. The negativing and falsifying allegation in an indictment for false pretenses should be as specific as in the charge of perjury, is the law. The negativing clauses of the indictment herein are uncertain, not specific, and do not negative all of the alleged false representations and pretenses, and are of doubtful and uncertain meaning. State v. Peacock, 31 Mo. 413; State v. Delay, 93 Mo. 98; State v. Phelan, 159 Mo. 122; People v. Griffith, 122 Cal. 212; State v. Coyne, 214 Mo. 344. Fifth, that part of the indictment which set out the representation, statement and pretense alleged to have been made by appellant with respect to the ownership and possession of ‘ ‘ seventy-five head of neat cattle and other personal property” does not use the statutory term “falsely” and “fraudulently” immediately in connection with the terms “represent,” “state” and “pretend.” Sixth, the indictment fails to positively and specifically allege that the alleged representations, statements and pretenses were designed and made, with a purpose to obtain credit or a loan. The indictment is bad and insufficient under Sec. 4765, R. S. 1909, as amended by Laws 1913, p. 222, because it fails to set out any offense as defined by said statute. The statutory language requires the statements, etc., be false and fraudulent and that by means or use of. State- v. Pickett, 174 Mo. 663; State v. Clay, 100 Mo. 571; State v. Haseltine, 130 Mo. 468; State v. Pickett, 174 Mo. 663. (2) The motion to discharge appellant in the nature of a demuirer to the evidence prayed for at the close of the State’s case and again at the close of the whole case, should have been given. It was error not to do so. Because the obtaining of a loan or the proceeds thereof or credit for the benefit of a third person is not within the statute. Sec. 4565, R. S. 1909; Rex v. Sans Gareet, 6 C. C. 260; Lucas v. People, 75 111. App. 665; State v. Martin, 167 Mo. App. 346; State v. MeGinnis, 71 Iowa, 685. (3) The motion to discharge on the ground of variance should have been sustained.The allegation of the indictment “that the said John McBrien in the manner and by the means aforesaid feloniously, ■ designedly, falsely and fraudulently did then and there obtain and .receive of and from the said Farmers’ Bank aforesaid, the said sum of one hundred and fifty dollars” is not sustained by the proof of a loan and a credit extended by the bank to a third person, that is, to Mary McBrien, for the sum of one hundred fifty dollars. 1 Ros. Crim. Ev., sec. 89 (note); Hughes, Grim. Law, secs. 654, 658; Com. v. Harkins, 128 Mass. 79; State v. Meysenburg, 171 Mo. 1; Comm, v. Howe, 132 Mass. 250; Lory v. People, 229 111. 268; State v. Schlib, 159 Mo. 130; State v. Dodson, 72 Mo. 283; State v. Crossthwaite, 130 Mo. 358. (4) The court abused its discretion and erred in overruling the defendant’s motion for a change of venue from the county of St. Francois, on the ground that the inhabitants of said county, in which said cause was pending, were so prejudiced against the defendant that he could not have a fair trial in said county. Not only was palpable injustice done, but the court abused its discretion. State v. Hunt, 91 Mo. 490. (5) The court erred in not submitting in its instruction to the jin-v whether the defendant might have been guilty of a misdemeanor under the evidence. Sec. 1927, R. S. 1899 (now Sec. 4565, R. S. 1909, as amended, Laws 1911, p. 164); State v. Pickett, 174 Mo. 667.

      John T. Barker, Attorney-General, and Lee B. Ewing, Assistant Attorney-General, for the State.
    (1) The court did not err in overruling appellant’s application for change of venue. State v. Barrington, 198 Mo. 89; State v. Hudspeth, 150 Mo. 12; State v. Headrick, 149 Mo. 396; .State v. Kring, 11 Mo. App. 92. (2) The indictment is in the language of the statute, follows approved precedent, and is sufficiently definite and certain. R. S. 1909, sec. 4565; Laws 1911, p. 194; State v. Lovan, 245 Mo. 516; State v. Wilson, 223 Mo. 159; State v. Vanclenberg, 159 Mo. 233; State v. Woodward, 156 Mo. 144; State v. Foley, 247 Mo. 613; Kelley’s Crim. L. & Prac. (3 Ed.), sec. 692; State v. Hubbard, 170 Mo. 350; State v. Guernsey, 9 Mo. App. 313. (3) There was no variance between the allegations in the information and the proof. State v. Terry, 109 Mo. 622; State v. Foley, 247 Mo. 633; State v. Meysenburg, 171 Mo. 28; State v. Mispagle, 207 Mo. 574; State v. Dimick, 107 N. T. 13; State v. Palmer, 40 Kan. 474; Schafimoleffel v. State, 102 Md. 470; People v. Hoffman, 142 Mich. 531. The question of a variance was for the trial court. R. S. 1909, sec. 5114; State v. Rich, 245 Mo. 165; State v. Burk, 234 Mo. 579; State v. O’Brien, 228 Mo. 411.; State v. Crow, 107 Mo. 345. (4) The instructions given by the court of its own motion and those given at request of appellant were correct, and fully covered the case, (a) State v. Keyes, 196 Mo. 144; State v. Alexander, 119 Mo. 457; State v. Foley, 247 Mo. 624. (b) State v.' McDonough, 232 Mo. 219; State v. Dilts, 191 Mo. 665; State v. Brown, 104 Mo. 365. (5) The record herein shows no error by the trial court in its rulings upon the arguments of State’s counsel or the prosecuting attorney. State v. Fitzgerald, 130 Mo. 436; State v. Church, 199 Mo. 450; State v. Zumbunson, 86 Mo. 113.
   BROWN, J.

Charged with obtaining money under false pretenses, defendant was convicted in the circuit court of St. Francois county; and appeals from a judgment fixing his punishment at two years in the penitentiary.

Points which the record and briefs in this case warrant us in considering are (1) alleged invalidity of indictment; (2) failure of the trial court to grant a change of venue from St. Francois county; (3) failure of the trial court to instruct the jury on the legal effect of obtaining less than $30 by false pretenses, and (4) improper remarks of special counsel for the State.

The evidence on behalf of the State tends to prove that for many years prior to May 13, 1913, defendant (John McBrien) resided on a farm in St. Francois county, -which farm had been willed to his wife, Mary McBrien, to hold during the life of her husband. Prior to said May 13, 1913, defendant and his wife had become indebted to the St. Francois County Bank at Farmington, Missouri, to an amount exceeding $9000, for which they had given their note. They had also become indebted to the Farmers Bank of -the same city in the sum of $1650. On said May 13,1913, the defendant, upon behalf of his wife, Mary McBrien, applied to one L. PI. Williams, the cashier of said Farmers Bank, for an additional loan of $150, all of defendant’s business with said bank having theretofore been conducted in the name of his said wife. Defendant offered as security for the proposed loan a note signed by him and his wife. Mr. Williams expressed some disinclination to grant this loan, for the reason (as he explained) that defendant was not giving all of his business to the said last-named bank.

The defendant then went to one B. IP. Marbury, the attorney for the Farmers Bank, and asked said Marbury to advise the bank to make this loan, representing to Marbury that he and his wife owned and were feeding about seventy-five head of beef cattle, all of which were unincumbered; that his wife’s life estate in the 320-acre farm was also unincumbered, and that he and his wife did not owe anything to the St. Francois County Bank, and that, excepting their note to the Farmers Bank, their only indebtedness was a few current accounts which they could pay at any time.

Marbury then advised the bank to make the loan of $150, and it was accordingly made — $25 of said loan being paid at the time to defendant, and the remainder, less $3 interest, credited to Mary McBrien upon the books of the bank.

There is a conflict in the evidence for the State upon one point. Marbury says that the defendant represented that the life interest of Mary McBrien in the farm was unincumbered, while cashier Williams did not remember that any representation was made in regard to the title of the farm. Both Marbury and Williams téstified that defendant stated that he and his wife owned about seventy-five head of beef cattle, and that they did not owe the St. Francois County Bank any money whatsoever, and that their total indebtedness consisted of a note to the Farmers Bank for $1650, and a few current .accounts, which latter they could pay any time; and that, relying upon these representations, the loan was made.

There is no testimony in the record that defendant’s wife did not have the seventy-five head of unincumbered beef cattle as represented by defendant, but there was evidence tending to prove that at the time of securing the $150 loan defendant and his wife were indebted to the St. Francois County Bank more than $9000, and about- $2500 to other parties. There was also evidence that defendant’s wife had leased her life interest in the farm to her son for a period of five years, which lease was dated prior to the time of securing the $150 loan for which defendant was convicted. The lease reserved to Mary McBrien the right to reside upon the farm, and to have one-fourth of the crops to be grown thereon.

Mr. Williams, cashier of the Farmers Bank, being recalled in rebuttal, testified that on May 23, 1913, he paid to defendant $10 upon a check which defendant drew upon his wife’s account, and to which check he signed her name. This payment, if made, was made out of the $150 loan made on May 13, 1913.

Defendant, testifying in his own behalf, admitted that he obtained the $25 at the time the $150 loan was made, but denied that out of that loan the bank subsequently paid him an additional sum of $10, and denied that he made any false statements whatever to either Marbury or "Williams in obtaining the $150 loan. There was evidence tending to discredit both the witnesses for the State and for defendant, but, as the probative force of that evidence is foreclosed by the verdict of the jury, it need not be stated here. When defendant sold the beef cattle, which either he or his wife owned, and failed to pay any of his debts with the proceeds, this prosecution followed.

The evidence relating to the application for a change of venue, and such other facts as are necessary to a full understanding of the conclusions we have reached, will be noted in our opinion.

OPINION.

I. Upon the oral argument in this court the defendant’s learned counsel informed us that he had assigned in his brief fifty points or reasons why the judgment of the circuit court should be reversed, but, upon inspection of his brief, we are surprised to find that no points at all are thus properly presented for review, for the reason that he fails, to comply with that part of our rule No. 15, which provides that:

“All briefs shall be printed and shall contain separate and apart from the argument or discussion of authorities, a statement, in numerical" order, of the points relied on, together with a citation of authorities appropriate under each point. And any brief failing to comply with this rule may be disregarded by the court. ’ ’

It is true many authorities are cited in defendant’s brief, but, instead of being set out in an orderly manner “separate and apart from the argument,” as required by the above-quoted rule, they are interminably mixed up with an argument covering 197 printed pages. .However, defendant is in no worse shape than if he had filed no brief at all, and, pursuant to our statutory duty, we have read the transcript to ascertain if error was committed to his prejudice.

II. Coming to the motion for new trial we find thirty alleged assignments of error, but many of them are merely duplications; for instance, the failure of the trial court, to sustain a demurrer to the State’s evidence is embodied in five different assignments.

A great many of the so-called assignments are so vague and indefinite as to amount to no assignment at all. Section 5285 of our Code of Criminal Proced-' ure provides that the motion for new trial “must set forth the grounds or causes therefor.” This clearly means that'the, motion must set forth the alleged errors of the trial court in such definite and specific manner that they may be readily understood. Yet in the face of this plain statute one of the so-called points in the motion for new trial reads as follows: “Because the verdict was reached by unfair, unjust and illegal means and methods. ’ ’ This so-called assignment is too indefinite to mean anything. Enigmas and riddles are all right in their proper places, but our General Assembly did not contemplate that the busy courts of the twentieth century should be compelled to waste their time in the interpretation or construction of language of such doubtful import.

In a supposed effort to point out errors in the instructions given by the trial court of its own motion, as well as those given at the request of the prosecuting attorney, the following recitals are made in defendant’s motion for new trial:

“Because the court erred in misdirecting the jury in a material matter of law.

“Because the court erred in improperly defining the issues of the case in its instructions to the jury.

“Because the instructions given by the court to the jury are a comment upon the evidence.

“Because the instructions as given are misdirecting.

“Because the court erred in giving the instructions prayed for by the State.”

These so-called assignments are so indefinite that they did not indicate what error, if any, the trial court committed. In State v. Scott, 214 Mo. l. c. 261, it was said by this court: “The simple assertion that the verdict of the jury is against the law does not indicate specifically wherein it infringes upon the law, nor are we able to see in what particular it does so.” [See, also, Polski v. St. Louis, 264 Mo. 458.]

In the recent case of Maplegreen Co. v. Trust Co., 237 Mo. 350, in speaking for the court In Banc, Lamm, J., said: “The office of a motion for a new trial is to gather together those rulings complained of as erroneous and solemnly and formally present them, one by one, in black and white, to the judge, in order that he have a last chance to correct his own errors without the delay, expense, or other hardships of an appeal. This, on the theory that even a judge is entitled to a last chance — a locus poenitenliae.”

The rule of law last above quoted is sound, and deserves to stand as a precedent until the people are fortunate enough to select judges who. are not only lawyers but mind-readers. No judge should be expected to find an error in an instruction which an injured litigant after due search has been unable to discover and point out. Therefore, if errors exist in the instructions given on behalf of the State in the case at bar we must decline to consider them.

III. Defendant asserts that the indictment does not specifically charge that the $150 alleged to have

been, fraudulently obtained by defendant „ „ „ , from tbe Farmers Bank was tbe property of said bank, and that, therefore, his motion to quash the indictment should have been sustained. The indictment charges that the defendant with a design to cheat and defraud the Farmers Bank of $150 “to the said Farmers Bank then and there belonging,” did make the false representations described in the indictment, and that the bank did loan and pay over to said John McBrien, the aforesaid sum of $150. We find that these allegations sufficiently charge that the $150 so paid to defendant was the property of the Farmers Bank. This* attack on the indictment will be disallowed. .

That part of the indictment which charges that defendant falsely represented to the cashier of the Farmers Bank that he and his wife owned seventy-five head of unincumbered beef cattle worth $3000, and that they were not indebted to the St. Francois County Bank, nor to any other person, except to said Farmers Bank and a few small current accounts, when in fact defendant and his wife owed an aggregate indebtedness of over $11,000, and by said representations deceived and obtained a loan from the said Farmers Bank of $150, stated a valid charge against defendant for obtaining money by false pretenses.

So far as we can find there has been no case in our appellate courts precisely like the one at bar. How.ever, in the case of People v. Haynes, 11 Wend. (N. Y.) l. c. 565, it was held that the crime of obtaining property by false pretenses was satisfactorily proven by evidence that a defendant represented himself as a successful business man worth $9000 or $10,000, and in unembarrassed circumstances, and thereby obtained goods, knowing that he could not have obtained them without such representations, when in fact he was so largely indebted that he could not pay twenty-five cents on the dollar. To the same effect is 2 Wharton’s Criminal Law (11 Ed.), sec. 1398, and State v. Pryor, 30 Ind. 350. The recent case of State v. Donaldson; 243 Mo. 460, while in some respects unlike the one at bar, lends some support to the rule announced in this paragraph.

Whether or not that part of the indictment in this case which charges that defendant represented that his wife’s farm was unincumbered, when in fact it was rented for five years by a lease in which she reserved the right to live upon the property and collect rents, constituted a valid charge, we express no opinion at this time. The evidence did not sustain that part of the indictment. Mr. Williams, the cashier, who made the loan, stated that he could not remember about alleged representations as to the title to- the farm, and that in making the loan he relied upon defendant’s representation that he and his wife had the seventy^ five head of beef cattle and were not in • debt. The indictment was sufficient.

TV. The refusal of the trial court to grant defendant a change of venue on account of the prejudice of the inhabitants of St. Francois county was properly preserved in defendant’s motion for new trial.

On the application for a change of venue defendant introduced thirteen witnesses who resided in different parts of St. Francois county. Eleven these witnesses testified that there was much prejudice existing against defendant in the respective localities where they resided. Two of said witnesses stated that they did not know whether defendant could get a fair trial in St. Francois county or not, and the other eleven were of the opinion that he could not. Several of defendant’s witnesses testified that the banks of St. Francois county which lost money on defendant were actively using their influence to create prejudice against him, and that those banks possessed great influence throughout the county.

Clarence Alexander of Farmington, one of defendant’s witnesses, stated that on the application for a change of venue made at the first trial of this cause he testified to the existence of prejudice on the part of the people against defendant; that since giving his testimony for defendant at that trial the president of the St. Francois County Bank had refused to speak to him. Said witness further testified that the cashier of the Farmers Bank had tried to get parties to refuse to sign defendant’s bail bond, and had further tried to prevent said witness from again giving his testimony for defendant in this cause. Witness did not state what method the cashier used in trying to prevent him from testifying, but, as no effort was made' to show that witness was ineligible to testify, we infer that persuasion was used to prevent him from again giving his evidence on behalf of defendant.

To rebut the evidence of prejudice the State introduced fifteen witnesses, who, likewise, lived in different parts of St. Francois county. All but three or four of these witnesses for the State testified that they had not heard this charge against defendant discussed very much and believed he could get a fair trial in St. Francois county. Several of said witnesses, however, admitted that there was prejudice against defendant about the city of Farmington on account of two of the hanks in said city being behind this prosecution. One witness for the State, living ten miles south of Farmington, testified that he believed it possible for defendant to get a fair trial in St. Francois county if no bank officers were summoned on the jury.

John Boswell, another witness for the State, living in the city of Doe Run, five miles west of Farming-ton, and who kept a livery stable, stated that some of the citizens of his neighborhood would give defendant a fair trial, and some of them would not. That he had heard the case discussed a great deal around his stable. Upon cross-examination this witness stated that he had heard some of his neighbors say that defendant was guilty and ought to be sent to the pen; while other neighbors had said that he was a" rascal and ought to "be in hell. According to this witness the sentiment was ■generally against defendant.

It is the well-established rule that this court will ordinarily not interfere with the discretion of the trial court in the matter of refusing to grant changes of •'venue in criminal cases. [State v. Faulkner, 185 Mo. l. c. 701, and cases there cited.] Plowever, in this case we find that the trial court erred in not granting: the change of venue prayed for. Prejudice may exist ! among some of the people of a county, and it may still '.be possible'to secure an impartial jury, but where several of its most intelligent and influential citizens are ■ actively at work augmenting such prejudice, the situa- ■ tion is quite different. The cashier of one of those ■banks tried to prevent defendant from securing the ■'evidence of a witness at the trial. The bank officers who were charged with using their influence to create prejudice against defendant were present in court and ■' gave their evidence when the cause was tried upon its merits, but the State did not call them on the application for a change of venue to refute the evidence of defendant’s witnesses. Therefore, it stands undenied •that said banks did use their influence to work up prejudice against defendant, and to prevent him from get-ding a fair trial. This court takes judicial notice of ■the population of the city of Farmington, as given by the last Federal census (State ex rel. v. Ryan, 232 Mo. l. c. 91), and we also judicially know that the bankers •:of a city of that size are among its most reliable and responsible citizens, and, for that reason, possess very great influence. It is doubtful if any class of men can mould1 public sentiment more rapidly than the bankers in a city of the size of Farmington. And the bankers of said city being thus actively engaged in creating sentiment against defendant, we are convinced that there was no probability that defendant could get a fair trial in that locality.

We are not saying that there was no cause for the prejudice which existed against defendant. It appears by the record that defendant had borrowed far more money than he could repay; and a large per cent of honest people believe that one who borrows when he knows he cannot repay is as depraved as a common thief. The writer admits that he personally holds this view. However, this has nothing to do with the duty of the trial court to vouchsafe the defendant a fair trial. The whole theory upon which courts are established is to accord those accused of crime, however guilty they may be, a trial by an impartial jury. It is not of the slightest consequence why or how prejudice against a person accused of crime comes into existence. If it exists to such a degree as to prevent the selection of an impartial jury, a change of venue ought to be awarded if applied for.

Y. As heretofore outlined, defendant admits that at the time of securing the loan for which he was indicted, the Farmers Bank turned over to him $25 in cash. The testimony for the State' also tends to prove that about ten days after the loan was made defendant obtained $10 more from the Farmers Bank by drawing a check on his wife’s account and signing her name to said check. Defendant testified that he did not draw this check, nor receive the $10 last mentioned.

This conflict in the evidence presented to the jury an issue as to whether defendant received as much as $30 of the $150, which he is charged with obtaining by false pretenses. If he thus received $30, or more, then he could, upon conviction, be sentenced to the penitentiary as for a felony; but if he only received $25, then he can only he punished as for a misdemeanor. [Laws 1911, p. 195; Sec. 4548, R. S. 1909.]

The learned Attorney-General insists that if the defendant, by false pretenses, obtained a credit in favor of his wife, Mary McBrien, for more than $30, then he can legally be punished as for a felony. In this insistence we find that he is mistaken. The charge in this case is that the whole $150 was obtained by and paid over to defendant. The evidence that the Farmers Bank gave credit on its books to Mary McBrien as a result of defendant’s alleged false pretenses does not raise a question of variance between the proof and the indictment. Such evidence did not tend to support the indictment at all, and is valueless in this ease. [State v. Ballard, 104 Mo. 634; State v. Dodson, 72 Mo. 283.] The act of obtaining money for one’s self, and the act of causing it to be wrongfully paid or credited to another, are two different things. If under our statute a criminal charge can be maintained at all for causing a second party to pay over money to a third party, the indictment would have to recite the fact that such money was paid to such third party; otherwise, there would be a failure to comply with the mandatory provision of section 22, article 2, Constitution of Missouri, which ordains that in criminal cases the accused shall have the right to demand the nature and cause of the accusation.

Under the facts in this case it was the duty of the trial court to submit to the jury the issue as to whether the defendant by false pretenses received as much as $30, or less than $30, and the jury should have been specifically informed that if they found that defendant had by false pretenses obtained from the Farmers Bank an aggregate sum of less than $30, then they should assess his punishment at imprisonment in the county jail not exceeding one year or by fine not exceeding one hundred dollars, or by both such fine and imprisonment.

The trial court omitted to give the instruction last mentioned, and defendant called attention to that omission in his motion for new trial, and in refusing to sustain such motion error was committed. [State v. Douglas, 258 Mo. 281.]

VI. Defendant also complains of an improper remark of special counsel for the State in asserting in his argument to the jury that “John McBrien was defrauding a Dutch farmer of Ste. Genevieve county out of $500.” This remark referred to a loan of $500 made to defendant and his wife by one John Gegg. The record does not show anything which even remotely indicates fraud in securing this loan. The evidence of Mr. Gegg shows that he made the loan in 1905, and that the interest thereon had been regularly paid up to the year 1912. The record is wholly silent as to when the loan was due, or whether it was secured. For aught that appears in this record defendant may have secured that loan by the deposit of a government bond. We, therefore, find that the remark was not only improper, for that it was outside of the evidence, but, under the peculiar facts in this case, it was highly prejudicial to the defendant. Upon defendant’s objection the court refused to either strike out the remark or to rebuke the special counsel for the State, and virtually approved the remark by telling counsel to go ahead with the argument, to which ruling defendant excepted. The above mentioned improper remark, sanctioned as it was by the ruling of the trial court,' amounted to reversible error.

Other remarks of the prosecuting attorney are complained of, also other alleged errors of the trial court, but, upon examination, we find that they are-not of sufficient moment to justify consideration.

For the errors of the trial court in denying the application for a change of venue, in refusing to rebuke special counsel for tbe State for bis improper remark, and in omitting to give tbe instruction last hereinbefore mentioned, tbe judgment is reversed and tbe cause remanded.

All concur-.


source: Caselaw Access Project

author: ROY, C. PER CURLAM:

license: Public Domain

text:
    THE STATE v. MAURICE LEWKOWITZ, Appellant.
    Division Two,
    July 6, 1915.
    1. RAPE: Sufficient Evidence: Conspiracy. The evidence is set forth at length in the statement and is held sufficient to support ' the verdict, finding defendant guilty of rape and fixing the punishment' at imprisonment in the penitentiary for ninety-nine years, and also to establish a conspiracy between defendant and three others to commit the crime.
    2. CONTINUANCE: Chance for Consultation With Counsel. Where the alleged rape, in which four men took part, was committed on March 9th, the defendant fled to another State and was arrested on March 19th and brought back and kept in jail until the time of his trial, and his ease, at the request of his attorney who had been his counsel from the time of his arrest, and who without assistance had tried two of the companion cases, was set for trial on April 27th, with the understanding it would then be tried, and just a few days before the trial began defendant employed another attorney, the court did not abuse its discretion in denying defendant’s application for a continuance, filed when the case was called for trial on April 27th, on the ground that he was poor and unable to employ counsel; that he had been unable to consult his attorney first employed except when he came to the jail to consult other prisoners, that said attorney had been so busy trying other cases that he had no opportunity to consult with him or his other attorney about the case and that the services of said attorney were not guaranteed until April 25th.
    3. JUROR: Asking Questions: Bias. If the defendant made no such objection to the • juror’s conduct in asking questions of witnesses as entitles him on app. il as a matter of right to ask for a reversal on the ground of the juror’s misconduct in persistently injecting himself into the trial, and the questions asked . do not of themselves show bias on his part, but point rather in the opposite direction and indicate he was prompted solely by a desire to understand the facts, the judgment of conviction will not be reversed on the theory that the trial court erred in permitting the juror to act as assistant prosecuting attorney in the examination of witnesses, although affidavits were filed charging that the juror after the trial had made statements indicating his bias and determination to convict before he qualified.
    4. -: Impeachment. Statements made by a juror after the trial are not competent to impeach his verdict.
    5. FLIGHT: Instruction: Sufficient Evidence. Testimony by the defendant that, upon discovering prosecutrix’s dirty clothing, he immediately left the building into which she had been invited by him, and where the State alleges he and three others forcibly ravished her, and testimony by others that the police began search for him the next day and he was arrested ten days later in another State, is sufficient to justify an instruction on flight.
    6. -: -: Explanation: Return Without Requisition. Where there was no evidence on the part of the defendant explaining’ why he left the State immediately after the alleged offense and remained away until arrested ten days later, the fact that he returned to the State under arrest without requisition did not require the instruction on flight to embody that fact as an explanation of his absence.
    7. RAPE: Instruction: Evidence of Sodomy: Not to Be Considered. Where there is evidence that another of the four conspirators charged with rape had “intercourse” with prosecutrix in her rectum and mouth, an instruction telling the jury that said acts do- not constitute rape should be given; but if it goes further and tells the jury that these acts are not to be considered by them in arriving at their verdict, it should be refused, or these words omitted, for the reason the jury has the right to consider everything that was done at the time of the ravishment, as part of the res gestae, in determining whether defendant was guilty of rape.
    8. -:--: -: -: Failure to Strike Out Improper Clause: Not Saved in Motion for New Trial. Failure of the trial court to strike out words which render improper an otherwise proper instruction asked by defendant, and to give it as thereby modified, is not preserved for review on appeal unless such failure is set forth in the motion for a new trial as a ground therefor. [Refusing to follow State v. Conway, 241 Mo. 1. c. 292, announcing that, notwithstanding the motion for a new trial does not assign such failure, a new trial will be granted if the record satisfies the court that a failure to instruct the jury upon a question of fundamental right may have worked an injustice to defendant.]

      9, REMARKS OF PROSECUTING ATTORNEY. An attempt by the prosecuting attorney in his opening statement to apologize to the jury for reciting some of the indecent facts connected with the offense, accompanied by a direction by the court, upon defendant’s objection, that he keep to the facts and do not argue the case, does not constitute reversible error.
    Appeal from Jackson Criminal Court. — Hon. Ralph 8. Latshaw, Judge.
    Affirmed.

      Ben E. Todd, for appellant.
    (1) The court erred in overruling defendant’s application for a continuance. State v.. Lewis, 74 .Mo. 222. (2) The court erred in permitting the prosecuting attorney in his opening statement to make remarks which were prejudicial to the accused, not founded upon any admissible evidence, and in permitting the prosecuting attorney to make a statement which was argumentative in its nature. State v. Jackson, 95 Mo. 653; State v. Stubblefield, 157 Mo. 365; Glover v. Railroad, 129 Mo. App. 575. (3) The appellate court will carefully examine and scrutinze the record and refuse to permit a conviction to stand when it depends sole-iy upon the testimony of the prosecutrix without very strong corroboration, and in such case the character of the prosecutrix and her antecedent history should be prime consideration. State v. Brown, 209 Mo. 413; State v. Goodalé, 210 Mo. 290; State v. Tevis, 234 Mo. 284; State v. Donnington, 246 Mo. 355. (4) The court erred in admitting evidence during the trial which was prejudicial to the defendant, upon the promise of the State to connect it up, which was not in fact connected up, nor withdrawn from the jury by instruction. State v. Thomas, 99 Mo. 257; State v. Bateman, 198 Mo. 222. , (5) The court erred in permitting juror Walton to act as an assistant prosecuting attorney in persistently interfering with and cross examining witnesses, after the examination direct, re-direct, cross and re-cross had been completed both by the State and the defense, which occurred ten times during the trial. A juror is not an advocate and has no right to usurp the functions of a prosecuting attorney. State v. Crawford, 96 Minn. 9'5. (6) The verdict was against the evidence and the weight thereof and a new trial should be granted for that reason. (7) The court erred in giving instruction number five for the State, there being no evidence on which to base an instruction on flight. State v. Evans, 138 Mo. 116. (8) The court erred in instruction five in that it did not require the jury to take into consideration “the other facts and circumstances in evidence in connection with the evidence of the alleged flight.” The instruction was misleading and prejudicial in the form in which it was given, even if there had been evidence in the record upon which to base an instruction on flight. State v. Fairlamb, 121 Mo. 147; State v. Knowles, 185 Mo. 160; State v. Harris, 232 Mo. 319; State v. Kyles, 247 Mo. 650; State v. King, 78 Mo. 555. (9>) The court erred in refusing instruction number six asked by the defendant. If it did not correctly declare the law, it was sufficient to call the attention of the court to the subject-matter. It was the duty of the court to modify the offered instruction and give a correct in-. struction as modified. This point does not have to be saved during the trial or mentioned in a motion for a new trial, although proper exception was saved in this case. This has always been the law of this State. State v. Matthews, 20 Mo. 55; State v. Jones, 61 Mo., 232; State v. Stonus, 62 Mo. 596; State v. Lowe, 9'3 Mo. 547; State v. Davis, 141 Mo. 522; State v. Adler, 146 Mo. 18; State v. Brinkley, 146 Mo. 37; State v. Clark, 147 Mo. 20; State v. Reed, 154 Mo. 122; State v. - Fennon, 158 Mo. 149; State v. Moore, 160 Mo. 443; State v. Barton, 214 Mo. 316. All of which citations are found and followed in State v. Conway, 241 Mo., 286. And for the same reasons the court erred in refusing instruction seven asked by defendant. (10) The court erred in not instructing the jury on the whole case. The evidence as to the acts of Guerringer, Harrison and others in the absence of the defendant, may have been admissible under the res gestae rule, but should have been limited in an instruction such as was correctly given in State v. Anderson, 252 Mo. 88. See. 5231, R, S. 1909; State v. Nicholas, 222 Mo. 434; State v. Lackey, 230 Mo. 707; State v. Hoag, 232 Mo. 317; State v. Harris, 232 Mo. 323; State v. Fairlamb, 121 Mo. 147; State v, Conway, 241 Mo. 271. (11) The court should have defined and instructed on corroboration, and this is especially true in a rape case, where the conviction and sentence depend upon the evident of the prosecutrix, solely and alone, and the failure to so instruct was prejudicial error, for which a new trial should be granted. Sec. 5231, R. S. 1909; State v. Reeves, 97 Mo. 668; State v. McCaskey, 104 Mo. 644; State v. Brown, 209 Mo. 413; State v. Good-ale, 210 Mo. 290; State v. Tevis, 230 Mo. 284; State v. Donnington, 246 Mo. 355; State v. Nicholas, 222 Mo. 434; State v. Lackey, 230 Mo. 707; State v. Hoag, 232 Mo. 308; State v. Harris, 232 Mo. 323; State v. Conway, 241 Mo. 271. (12) 'Where the record shows that there has been a failure to instruct upon a question which goes to the fundamental rights of the defendant and bv such failure injustice may have been done, the question of non-direction may be raised for the first time in the Supreme Court. The jury should not be left to grope in the dark. Sec. 5231, R. S. 1909; State v. Conway, 241 Mo. 271; State v. Banks, 73 Mo. 592; State v. Palmer, 88 Mo. 568; State v. Henson, 106 Mo. 66; State v. Hutchinson, 111 Mo. 257; State v. Maguire, 113 Mo. 670; State v. Nelson, 118 Mo. 124; State v. Taylor, 118 Mo. 153; State v. Rufus, 149 Mo. 406.

      John T. Barker, Attorney-General, and W. T. ■Rutherford, Assistant Attorney-General, for the State.
    (1) Everything done or said by the parties to a. conspiracy relating to its purposes during its existence is admissible m evidence against all or either of the conspirators, whether said or done in the presence of each or not. State v. Bobbitt, 228 Mo. 265; State v. Darling, 199 Mo. 201; State v. Copeman, 186 Mo. 120; State v. Pratt, 121 Mo. 572; State v.. Walker, 98 Mo. 103. (2) Where the prosecuting attorney indulges in improper argument and on objection of de-' fendant the court requests the jury to disregard the-remarks and withdraws such remarks from the consideration of the jury and admonishes the prosecuting attorney to keep within the record, the defendant if not satisfied with the court’s action, should ask the court to take further action and failing so to do-acquiesce-s in the action of the court. State v. Wanna, 245 Mo. 563; State v. Raftery, 252 Mo. 83. (3:) When the prosecuting attorney is rebuked by the court for improper remarks that will ordinarily be sufficient. State v. Dudley, 245 Mo. 188; State v. Terrell, 246 Mo.-333; State v. Kullman, 225 Mo. 632; State v. Barring-ton, 198 Mo. 91. (4) The motion for a new trial failing to specify any question of law upon which the court failed to instruct, the error, if any, on account thereof is not reviewable on appeal. State v. Conway, 241 Mo. 291; State v. Chissell, 245 Mo. 291; State v. Dockery, 243 Mo. 599. (5) A conspiracy may be shown by either' direct and positive evidence or by circumstances from which it may be inferred. State v. Walker, 98 Mo. 95; State v. Sykes, 191 Mo. 78. (6) Declarations and conduct of prosecutrix in a prosecution for rape made or done a few moments after the-commission of the offense and while she -was still under the influence of the excitement produced by it are admissible as a part of the res gestae. McMurrin v. Rigby, 80 Iowa, 322; Hoist v. State, 23 Tex. App. 1; Parker v. State, 67 Mo. 329; McMarth v. State, '55 Ga. 303; People v. Gage, 62 Mich. 271; Lambert v. People, 29 Mich. 71; People v. Brown, 53 Mich. 533; State v. Sykes, 191 Mo. 62. (7)' Unless the motion for new trial or appellant’s brief points ont the particular testimony complained of the court will not go through the record and take .upon itself the burden of discovering the illegal or incompetent testimony. State v. Holden, 202 Mo. 584; State v. Brown, 168 Mo. 449; State v. Whitsett, 232 Mo. 529. (8) If a defendant desires to have a matter of exception reviewed in the appellate court he must assign it as a ground in his motion for a new trial. State v. Dilts, 191 Mo. 672; State v. Scott, 214 Mo. 257. (9) The court will not go outside of the assignments of error as contained in the motion for a new trial, so far as matters of pure exception, not contained in the record proper, are concerned. State v. Foley, 247 Mo. 627; State v. Gilmore, 110 Mo. 1; State v. Headrick, 149 Mo. 404; State v. Harlan, 130 Mo. 394; State v. Aired, 115 Mo. 471; State v. Mieukin, 24 Mo. App. 462. (10) Where the verdict is manifestly for the right party, errors in the giving or refusing of instructions will not work a reversal. State v. Yickers, 209 Mo. 33; State v. McClure, 25 Mo. 338; State v. More, 61 Mo. 276; State v. Miller, 111 Mo. 542; State v. Privitt, 175 Mo. 230; State v. Taylor, 134 Mo. 152. (11) Corroboration of prosecutrix in a trial for rape is not essential to sustain a conviction. State v. Stackhouse, 242 Mo. 449; State v. Tevis, 234 Mo. 179; State v. Welch, 191 Mo. 179; State v. Dilts, 191 Mo. 665; State v. Day, 188 Mo. 359; State v. Marks, 140 Mo. 656; State v. Lovitt, 243 Mo. 510; State v. Pierce, 243 Mo. 524. (12) When appellant has failed to call the attention of the court to its failure to instruct on any phase of the-case, the appellate court will not review the alleged-error. State v. Horton, 247 Mo. 663; State v. Connors, 245 Mo. 482; State v. CMssell, 245 Mo. 555; State v. Greaves, 24.3 Mo. 551; State v. Dockery, 243 Mo. 599; State v. Gaultney, 242 Mo. 39L
   ROY, C.

Defendant, having been sentenced to ninety-nine years in the penitentiary on a conviction of rape, has appealed.

The offense was committed (if at all) on March 9, 1914, between five-fifteen and six o’clock p. m. at 1224 Grand Avenue, Kansas City. The evidence tends to inculpate at least five men.

The information in the case was filed on March 24, 1914, and the trial was begun on April 27, 1914. Another information was filed against Yic Gueringer, Thomas Kinevan, Leo Brennan and Oscar Harrison. From a conviction under that information Harrison appealed to this court. The opinion affirming that conviction is reported in 263 Mo. 642.

The prosecutrix, Gertrude Shidler, was born and reared in the country near Terre Plaute, Indiana, spending nearly all her life on the farm. She married Clyde Shidler in 1903, and became the mother of three children.' She was divorced in 1910, remarried to her former husband in 1911, and again divorced. She charged her father-in-law with raping her, and received from him five or six hundred dollars in settlement of that trouble. In a deposition he denied the charge, but admitted that he paid the money. There were witnesses from Indiana on both sides of the question as to his reputation and as to the reputation of the prosecutrix. Mrs. Shidler admitted on the stand that while living in Indiana she charged another man with an attempt to rape her. He was sentenced to jail. She admitted that she came to Kansas City about two years before the trial and there lived with Ray Ausherman. She said it was under a promise of marriage. Ausherman testified that on several occasions he had sexual intercourse with her in Indiana. The evidence tended strongly to show that she lived for a while with one Farina as his wife in Kansas City. While in Terre Haute she sometimes served as a practical, but untrained, nurse. She followed the same vocation after coming to Kansas City. For several months prior to the alleged offense she lived in the home of a lawyer, Mr. Wimmer, and nursed patients of Dr. Tucker, and perhaps of other physicians. She testified that she had met Dr. Schwartz who was an osteopath. During the previous summer of 1913, in her nurse’s garb, she often attended the picture show conducted by Yic Gueringer, and on one occasion she was carried from that show in a faint. There was testimony that she suffered from “heart leakage.”

The house in which it is claimed the offense occurred in an old two-story building fronting east. A plain, uncarpeted wooden stairway leads from the sidewalk to a landing which extends five or six feet west to a door, which opens into a hall which runs west,, without any openings on the south, to a window in the west end. That window opens on the low roof of the first story which extends sixteen feet further west to-an alley. The front room of the second story is entered from the landing and has no door opening directly into the hall. That room was occupied by the sign painter Forrest, who was therein at the time of the occurrence in controversy, which took place in the “big room” next west. Between those two rooms were double doors, which were kept closed except that there was a crack between them probably an inch wide at the top,, vanishing as it neared the floor. Against these doors-on the east side was a board rack used in sign painting.. Its height was four or five feet. There is a door opening directly from the hall into the big room. The next door west opens from the hall into a small, unearpeted and almost unfurnished “entry” room from which a door opens east into the big room. The space north of this small room is not separated from the big room and may be called an alcove. There is come confusion in the evidence by reason of the fact that it is sometimes spoken of as a part of the big room, and sometimes as a separate room. At the southwest comer of the alcove is a door into a bed-room on the west. There were no signs or other peculiar indicia of a doctor’s office on the premises. The extreme west room is the kitchen, opening by doors and windows on the low roof. It was furnished with a gas range, an ice box, bottles of 'beer, a telephone, chairs and a table. Opening into the kitchen and on the east thereof is the dining room reasonably well furnished. Under the rug in that room was a hole seven by sixteen inches in the floor and fitted with a loose board. Between the dining room and the big room were bedrooms and a bathroom. A ladder in the" bathroom led to the roof through a- skylight. There was a skylight over the big room and some of the other rooms. The doors between the hall and the rooms had Yale locks, and some of ■them had mortised locks, how many is not shown.

About five o’clock Mrs. Shidler, dressed not as a nurse but in an ordinary street costume, went to the office of Dr. Tucker in the Missouri building, to be treated for a severe cold bordering on pneumonia. She left that building about fifteen minutes later, and in front of it met the defendant. Their accounts of what followed are contradictory of each other. The substance of his evidence is that they agreed to have sexual intercourse, and that they went together to 1224 Grand Avenue, he borrowing four dollars from a friend on the way, that they went upstairs, through the little room into the big room; that he laid down two dollars and that she took off her hat and coat and lay down on the davenport; that he started to have intercourse with her, but found her clothes so dirty that he was so disgusted he left the building at once; that there was no one else present at the time. She testified that when they met he tipped bis hat and said, “Good evening. Are you a nurse?” That she answered, “Yes,” whereupon he said, “Dr. Schwartz wants you on a case right away.” That she said, “Dr. Schwartz, where?” that he said, “Right down here. Come and I will walk with you;” that they went to 1224 Grand Avenue, up the steps, into the hall and into the little room-; that thereupon she said, “This room doesn’t look like a doctor’s office to me;” that he said, “On into the next room,” into which she could see and which looked like it might be a doctor’s office ; that they entered the big room and that Lewkowitz locked the door and made a lewd proposal to her, .at the same time taking hold of her; that she pulled ■loose and ran to the door, which she found locked; that he went into the room on the west and came back •with three or four other men, among whom were Gueringer and Harrison; that while she was crying, screaming and trying to get free, they pulled her onto the table and held her, while Lewkowitz, Harrison and Gueringer had intercourse with her in the usual way; and that Gueringer tried to have intercourse with her in ■the rectum, and then stuck a pistol to her mouth, compelling her to open it, and inserted his sexual organ therein, threatening to kill her if she bit him,. She testified thats she then lost consciousness. As to what occurred when she became conscious she said: £ ‘ Some one had thrown water on me and they were cursing about it. I hardly know what was said, only something about the water; then there was — I don’t know whether the one that had thrown the water went out into the hall. Gueringer and some one went out into the hall, and went down the hall, and after I got up I •seen that the door was open; then I ran out of the door ¡and looked down the hall east to the entrance and there was two or three men down there. I could see through the glass door there was a man or some object on the other side. It was either some one trying to get in or they were trying to get out. So, I looked down the hall west and there was a window raised and I thought my chance to get away, so I ran down the hall.”

She stated that during all that time she had her hat, coat and gloves on, and that her pocketbook was fastened to her wrist by a chain; that she then ran and jumped out of the window at the west end of the hall onto the roof, screaming, for help, thinking to jump off, but that the telephone wires brought her to her senses. She stated that people gathered in the alley below; that Harrison came out on the roof, called’ her a vile name, tried to get her back in the house; that he then went back in, and another man came and went back; that the officer then came out to her on the roof and she went with him into the 'building, making complaint to him of what had been done to her.

■ Several witnesses testified that she appeared on' the roof screaming, saying that they were trying to murder her; that she took off her hat, gloves and coat and threw them and her purse into the alley. They were picked up and restored to her. There was only sixty-five cents in the purse.

Officers McCombs and Bauswell got there about six-ten or six-thirty. They found the front hall door upstairs locked. They went down and through to the alley. They found her on the roof screaming for help, her hair partly down, the sleeve of her waist torn and her waist wet. The officers then went back to the front hall door. Forrest, the sign painter, come out of his room and with a key unlocked the hall door. They testified that Mrs. Shidler’s face, neck and wrists were red, and one of her sleeves was torn, and that she then made a complaint as to what had been done to her. Those officers went, through the rooms. In the big idom they found the table and cover wet, the latter more' or less wadded up, the gas stove and one or more chairs overturned; The davenport was not wet. A deck of cards and poker chips were on the table in the alcove. A spread on one of the beds was wet and “mussed up.” All the rooms were a condition of confusion. Mrs. Shidler’s coat and skirt were wet. She was taken hy the officers to the police station and thence to the general hospital. There she was examined by Drs. Allen and Owen, who found two fresh bleeding lacerations about an inch long extending from the opening of the rectum. One of the doctors testified that they were superficial like a briar scratch.

At one time as Mrs. Shidler was leaving the witness stand the record shows the following: “Witness rises, falls from witness stand, carried from the court room by Mr. McCord, Deputy Marshal, Mr. Curtin, Assistant Prosecuting Attorney, and Mrs. Simmons, Jail Matron.”

Two witnesses, McNulty and Kearns, testified that Oscar Harrison came out on the roof and tried to get Mrs. Shidler to come in off the roof. Mr. McNulty testified that Harrison said to her, “Come in, you silly s — of a b — , what is the matter with you 1 ’ ’

Forrest, the sign painter, testified that he was in his shop at the time, and that he heard no screaming or unusual noises in the adjoining room. He denied on the stand that he said to the officer the next morning that he heard screams back there. He admitted saying to the officer that it looked as if the place were going from bad to worse.

Officer Barrett testified that on the. morning after the alleged assault he had a conversation with Forrest in which the latter said that he heard screams, and, on being asked by witness why he didn’t go back and help her, said, “The place is going from 'bad to worse. Would you go back there with that bunch of fellows back there?” A proper foundation was laid for that evidence.

Mrs. Chessie Williams, employed at the clothing store on the ground floor at 1224 Grand Avenue, testified that the first screams she heard were within a few minutes of six o’clock and came from the roof, that the man who came out on the roof did not curse Mrs. Shidler and that Mrs. Shidler’s hair was not down.

Defendant was twenty-six years old and had lived in Kansas City since 1904. The police began a search for him the next day after the alleged offense, but failed to locate him until the 19th of March, when he was arrested while playing a game of cards in a hotel in Omaha. There was no evidence on the part of defendant tending to explain why he left Kansas City. He returned without a requisition, and one of the officers testified that he said, “I guess I am wanted for that Kansas City Grand Avenue job.” A police officer testified that he saw the defendant at 1224 Grand Avenue on the Saturday night before the alleged offense.

There was no direct evidence in the case as to who occupied and controlled the rooms where the incident occurred.

Defendant was in jail from the time of his return to Kansas City with the officers. Mr. Martz was his attorney all that time, and had tried two of the cases prior to the trial in this case. Just a few days before the trial of this defendant began, he employed Mr. Martin as additional counsel. This case had previously been set for trial on April 27th, at the request of Mr. Martz, with the understanding that it would be tried. When the case was called for trial, defendant applied for a continuance on the ground that he was poor and unable to employ counsel, that he had been unable to consult his lawyer except when he came to the jail to consult other prisoners; that Mr. Martz had been so busy trying other cases that they could not consult about this case; that his attorneys Martz and Martin had had no opportunity to consult with each other about the defense, and that the services of Mr. Martz were not guaranteed until after April 25th. The application did not specify any absent witness or missing testimony of any kind. Mr. Martz stated at the time ■of the application that he had been alone in the previous trials of these cases. The application was refused.

On eleven different occasions during the trial juror Walton asked more or less questions of the different witnesses. The first incident of the kind was as follows :

“Mr. E. M. Walton (juror): You spoke about finding a woman’s shirt on the bed. I didn’t understand whether it was a woman’s shirt or a man’s shirt?

“The Court: That has no connection with this case. That is all.”

. Fred McNulty testified that he was present when they were taking Mrs. Shidler from the roof and that he did not see Lewkowitz about the place. The juror said: “The defendant could have been in the room and you wouldn’t have known it?” and the witness answered, “Yes, sir, he could have been.”

While Mrs. Shidler was being cross-examined as to her charge against her father-in-law, the following occurred:

“Mr. E. M. Walton (juror): I would like to ask if this Indiana proposition has anything to do with tins 1224 Grand Avenue?

“The Court: Yes sir, it has.

“Mr. Martz (Out of hearing of jury): We except to the question asked by the juror.”

Finally the following occurred:

“Mr. E. M. Walton (juror): May I ask a question?

‘ ‘ The Court: The practice of asking questions is not to be encouraged on the part of the jury. The attorneys will elicit all of the information that is necessary.

“Mr. Martz (Out of hearing of jury): We object to the juryman interfering with the witness.

‘ ‘ The Court: Proceed.

“Mr. Martz: That is all.”

None of the other questions asked by the juror betrayed any bias of his mind.

No objection, exception or suggestion as to such conduct on the part of the juror was made by counsel for defendant except as above shown.

The fifth instruction given was as follows:

“'5. Plight raises the presumption of guilt, and, if the jury believe and find, from the evidence, that after the commission of the offense alleged in this information, the defendant fled from the State, and tried to avoid arrest and trial for said offense, then the jury may take this fact into consideration in determining his guilt or innocence.

“The court instructs the jury that although they may believe and find from the evidence that the defendant fled from the State of Missouri, after the commission of the alleged offense (if any), yet if they believe and find from the evidence that he did not flee from a motive to avoid arrest and trial on this charge, they should not consider it as an element in arriving at their verdict as to the defendant’s guilt or innocence of this charge.”

The defendant’s refused instruction 6 is as follows :

“6. You are further instructed that although you may find and believe from the evidence, beyond a reasonable doubt, that some person or persons, other than the defendant, may have committed the detestable and abominable crime against nature, upon the said Gertrude Shidler, a female human being, by then and there inserting his sexual organs into the rectum of her, the said Gertrude Shidler, such action does not constitute rape, and cannot be considered by you in arriving at a verdict in this case.”

His seventh refused instruction was the same as. the sixth except that the word “mouth”’ was used in place of the word “rectum.”

During the statement of the ease to the jury by counsel for the State the following occurred:

“I say to you gentlemen in describing the rest of what transpired at 1224 Grand Avenue, I say to you with a-n apology to your sense of decency, I say to you that it is with hesitation and embarrassment that I describe to you what transpired following the entrance ■of these men into that room.

“Mr. Martz: We object to that.

“The Court: Avoid arguing the case at this time. “Mr. Jacobs (Continuing): I only say this to you gentlemen in passing to the statement of what transpired in that room if I offend your sense of propriety und your sense of decency—

“Mr. Martz: We object to that.

“The Court: Avoid argument. State what the evidence will show as to the facts.”

Many objections were made to language used in such opening statement and in the argument of State’s counsel to the jury and to the introduction of evidence based on the theory that no conspiracy was shown in the case.

The motion for a new trial called attention to the fact of the court’s refusal of instructions asked by the defendant, but did not mention the failure to instruct in any other respect. Along with the motion for a new trial there was filed the affidavit of Mr. Martin, who was of counsel for defendant, alleging that on May 4th, which was three days after the verdict, affiant in the presence of William E. Crawford had a conversation with Mr. Walton, who had been of the jury, in which Walton said that he had told his wife that he would, if chosen on the jury, “hang the jury until hell froze over before he would vote to acquit the son of a bitch,” and that Walton in that conversation said, “All the rest of the gang should be hung to teach all the rest of the sons of bitches around 1224 Grand Avenue a lesson. ’ ’ And that on May 5th Walton said to affiant that Martz lied when he said that Gertrude Shidler did not faint; that he, Walton, knew absolutely that she did faint; that he could and would not go home and face his family and neighbors if he-voted for less punishment; that Martz was no better than Lewkowitz when he sought to discredit GertrudeShidler by showing that she was not a virtuous woman;, and that he (Walton) had made up his miad that defendant was guilty when he heard of his arrest. The-affidavit of William E. Crawford supports that of Mr. Martin as to the alleged conversation on May 4th. Those affidavits were made the foundation for the point-in the motion for a new trial that the verdict should be-: set aside on account of the bias and prejudice of juror-Walton. Mr. Walton’s affidavit was filed in which he admitted that he said to Martin that Mrs. Shidler did faint during the trial and that anybody who said that she did not faint was a liar. He denied categorically the other charges made against him in the af-fidavits.

I. Appellant contends that there is not sufficient evidence to support the conviction. It was held otherwise in the Harrison case, and the evidence ]2ere is even stronger than in that case. For' instance, it is conceded by this defendant that he was the person who accompanied Mrs. Shidler to the room where the offense is alleged to have occurred, and. the evidence tends to prove that he fled to avoid arrest.

II. The claim that there is no evidence of a, conspiracy is also settled by the Harrison case,

III. There is no reason why we should interfere-with the trial court’s discretion in refusing the continuance. Mr. Martz had, without any assistance, represented other defendants in two previous trials for the same offense. The fact that he may not have had time to consult Mr. Martin about the case is no ground for a continuance under the circumstances of this case. We are cited to State v. Lewis, 74 Mo. 222, where the defendant’s counsel deserted him and he was dependent upon counsel who only four days previously had been appointed by the court and who had no previous knowledge of the case, and did not know of their appointment until the next day after the appointment. In that case the application showed the absence of an important witness.

We have had no suggestion as to any particular in which defendant has been prejudiced by the refusal of his application.

• IV. Appellant complains that the trial court permitted juror Walton to act as an assistant prosecuting attorney in the examination of witnesses. It must be conceded that the juror in this case injected himself into the proceeding much more actively than has been done in any other reported case. The question asked by the juror as to whether Mrs. Shidler’ charge against her father-in-law in Indiana had anything to do with the charge against the defendant does not necessarily show bias on his part. He had heard objections made by defendant’s counsel to many questions during the trial on the ground that the facts called for were remote as to time, distance or otherwise from the issue on trial, and he had heard the court sustain many of those objections. Eor instance, while Mrs. Shidler was on the stand, the following occurred:

“Q. You fainted in that picture show one night?

“Mr. Martz: We object to whether she fainted.

Where she fainted has nothing to do with this' case.

This happened a year before this alleged transaction.

“The Court: Objection sustained.”-

It is possible and even probable that tbe juror’s mind was free and unbiased and he was prompted solely by a desire to understand tbe situation. We call attention to tbe result of that inquiry by tbe juror. Tbe court promptly answered: “Yes, sir, it has." If it be conceded that tbe juror’s mind was unbiased tbe incident was favorable to tbe defendant, because of tbe answer made by tbe court. That answer was beard by tbe other jurors as well as by Walton. It will be noticed that defendant’s counsel at no time requested tbe court to silence tbe juror or to limit bis interference. That request could have been made out of tbe bearing of tbe jury. In tbe one instance there was an exception to tbe question asked by tbe juror. That seemed to be aimed at tbe nature of tbe question and not at tbe fact that it was asked by tbe juror.

Plaintiff’s counsel cite State v. Crawford, 96 Minn. 95. In that case the point made by the appellant was, not that tbe juror was allowed to ask tbe questions, but that tbe questions were improper. No objection was made and no exception taken. It was held that tbe point was not subject to review as a matter of right, and that tbe failure of tbe court to interfere was not necessarily reversible error.

In this case tbe appellant made no such objection to tbe juror’s conduct as entitles him as a matter of right to ask that tbe case be reversed for. error of tbe trial court. We are, in this connection, confronted with tbe affidavits as tó statements made after tbe trial by tbe juror. Neither tbe affidavit of a juror nor tbe affidavit of another as to statements made by a juror after tbe trial is competent to impeach tbe verdict. [Easley v. Railroad, 113 Mo. 236; State v. Rush, 95 Mo. 199; State v. Cooper, 85 Mo. 256; State v. Dunn, 80 Mo. 681.]

In State v. Palmer, 161 Mo. l. c. 175, this court said, “Every lawyer is supposed to know, that for about three-quarters of a century in this State tbe inflexible rule has been that a juror neither by his statement nor by his affidavit is allowed to impeach his verdict.” Sometimes, in discussing this question, the courts have said' that the juror cannot be permitted to reveal “the secrets of the jury room.” It might be implied from the language that a juror is competent to impeach his verdict by showing matters which' did not occur during the period of the jury’s existence as such.

Here the fact complained of is that the juror had prejudged the case and had expressed such opinion before he was chosen as a juror. We are of the opinion that such fact is within the rule which provides that the juror cannot impeach the verdict. It is clearly within the rule as stated in the Palmer case supra. We find no authority to the contrary.

In Thompson v. State, 4 Ga. App. 649, it was held that the relationship of the juror to parties interested in the prosecution could not be shown by the affidavit of the juror made after the verdict was rendered, for the purposes of impeaching that verdict.

In State v. Labry, 124 La. 748, it was held that the non-residence of the juror could not be shown in that way; and in State v. Smith, 103 Miss. 356', it was held that the forming of an opinion by the juror prior to the trial could not be so shown.

V. The fifth instruction on the question of flight to avoid arrest was free from error. It is substantially in the same form as the instruction in State v. Brooks, 92 Mo. l. c. 585. In State v. Evans, 138 Mo. l. c. 127, it was that the mere fact that the defendant was arrested in Arizona was not sufficient evidence to justify an instruction on flight. But in this case the defendant himself testified that he left the building at once while prosecutrix was in the building. The .police, began the search for him the next day, and he was arrested ten days afterward in Omaha. The evidence was sufficient to justify the instruction.

It was held in State v. Harris, 232 Mo. 317, that when the defendant introduced evidence to explain his flight the instruction should call the attention of the jury to such explanatory evidence.

In State v. Fairlamb, 121 Mo. 137, the defendant sent for the officer to come and arrest him. It was held that the instruction should have embodied that fact.

The fact that the defendant in this cáse returned to Missouri under arrest without requisition does not call for such a-modification of the instruction.

The point is made that the instruction does not require that the evidence as to flight should be considered in connection with the other facts and circumstances in evidence. In State v. Knowles, 185 Mo. l. c. 176, it was held that an instruction without those words had that obvious meaning when read with the other instructions.

VI. Instructions six and seven asked by the defendant on the subject of sodomy were properly refused. The words “and cannot be considered by you in arriving at a verdict in this case” should have been omitted, for the reason that the jury had the right to consider the evidence as to all that was done there at the time as part of the res gestae in determining whether the defendant was guilty of rape. Without those words the instructions would have been proper and should have been given. But the failure of the court to strike out those words and to give the instructions as thus modified is not before us for review because such failure was not set out in the motion for a new trial. That motion did state that the court had given improper instructions for the State and had refused proper instructions asked by defendant, but did not say anything on the subject of the failure to so modify and give said instructions asked by defendant.

Appellant’s counsel in his brief, speaking of such failure to modify and give the instructions asked by defendant, says: “This point does not have to be saved during the trial, nor mentioned in a motion for a new trial.” Whether it is necessary to save the point during the trial by objection or exception we will not here decide, because such decision is not necessary to a determination of the case. The fact that the point was not raised in the motion for a new trial leaves it outside the power of this court to review it, even though it may have been saved during the trial. In what follows we shall discuss some of the cases on the necessity of saving the point during the trial, but shall do so only as collateral to the question as to the necessity of mentioning it in the motion for a new trial.

Appellant, in support of the contention that the point saves itself without being mentioned in the trial proceedings or in the motion for a new trial, cites the following cases: State v. Matthews, 20 Mo. 55; State v. Jones, 61 Mo. 232; State v. Stonum, 62 Mo. 596; State v. Lowe, 93 Mo. 547; State v. Davis, 141 Mo. 522; State v. Brinkley, 146 Mo. 37; State v. Clark, 147 Mo. 20; State v. Reed, 154 Mo. 122; State v. Fannon, 158 Mo. 149; State v. Moore, 160 Mo. 443; State v. Barton, 214 Mo. 316.

The Conway case, 24.1 Mo. l. c. 286, says: “But this court has always held, even while following the doctrine of the Bond case, that if an erroneous instruction was requested by a defendant, then it became the duty of the court to give a correct instruction upon that question, and no exception for failure to do so was necessary in order to preserve the court’s action as a ground for new trial and for review on appeal.”

We have examined those cases. Not one of them justifies the assertion that an exception at the trial is not necessary. The doctrine of those cases is fully set out in the Adler case, 146 Mo. 1. c. 25', as follows: “Defendant’s first refused instruction seems to have been intended to present this theory of the case, and while it does not do so very clearly and was properly refused for that reason, it was sufficient to call the court’s attention thereto, indeed equivalent to a request to instruct thereon; and in having failed to so do it committed error.”

That case simply holds that the failure of the trial court to modify and give the instruction is error, but says not a word as to whether it is necessary to save the point at the trial or in the motion for a new trial.. Neither do any of the other cases above mentioned except the Conway case. So much is said only because appellant insists that those cases are authority for the assertion that it is not necessary to mention such failure in the motion for a new trial.

The general doctrine is that a failure to instruct must be specifically assigned at least in the motion for a new trial in order to be available on appeal. [State v. Wellman, 253 Mo. l. c. 316; State v. Douglas, 258. Mo. l. c. 293.] There is no authority anywhere except in the dictum in the Conway case for the assertion that, a failure to modify a requested instruction and to give it as modified can be raised in this court without having been assigned in the motion for a new trial.

VIE. Appellant cites the following paragraph from the Conway case, 1. c. 292: “Notwithstanding the foregoing rule, if satisfied from the record that there, has been a failure to instruct the jury upon a question which goes to the fundamental rights of, the defendant, and that by such failure . . . \ 1 ~ injustice may have been done or a verreturned different than if such failure had not occurred, this court, in the interest of justice, will not hesitate to grant a new trial, though the question should he presented here for the .first time.”

That paragraph was expressly doubted and in effect overruled in State v. Douglas, 258 Mo. 1. c. 29'3, and should be no longer followed.

VIII. State’s counsel in his opening statement to the jury attempted to apologize to the jury for the .character of the facts he was about to state. On objection of defendant the court promptly ordered him to keep to the facts. We have no hesitation in saying that no reversible error was committed in that respect.

Many other points are raised in brief of counsel for defendant, but, after a careful examination of them, we find no reversible error, and it would serve no good purpose to prolong the discussion.

The judgment is affirmed. Williams, C., concurs.

PER CURLAM:

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

All the judges concur; Paris, P. J., in result.


author: WILLIAMS, C. PER CURIAM

text:
    J. C. RUSS and WILLIAM M. EASLEY, Appellants, v. JOHN A. HOPE.
    Division Two,
    July 6, 1915.
    1. LACHES: Quieting Title. Where the land is timbered, wild and unimproved and has. never been in the possession of anyone, the doctrine of laches is not available to either side in a suit to determine the title, since there is no evidence upon which its application may be justified.
    2. QUIETING TITLE: Description of Land: Carleton’s Abstract: Explanation on Margin: Grantor’s Intention. Where the land records had been burned, and Carleton’s Abstract, made evidence by statute, headed “Section 7, Township Í7 north, of Range 11 east,” described the land conveyed by deed as “Parts of Section: a, b, c, d, e, f, g, h, i, j, o, p, k, 1,” each letter being meant to designate a forty acres, and, therefore, the letters k and 1 the north half of the southwest quarter, accompanied by an explanation ou the margin reading: “In last description of 80 acres k, 1 no section is mentioned. In all probability section 7 was intended; but record does not say so,” it cannot be held that the abstract describes land in section 7, for the explanatory note states the fact to be that the deed record does not state the section in which k and 1 are located. To this extent the note is just as competent to evidence title, or want of title, as any other portion of the abstract; but that part of it in which the abstracter states his conclusion as to what the grantor’s intention may have been is not competent evidence of title.
    3. -: Purpose of Suit: Reforming Deed. A suit to quiet the title between adverse claimants is one to determine the existing title as shown by deeds and records, and is not an action to reform a deed found in any chain of title; and hence a grantor’s intention concerning any land not conveyed by his deed is immaterial.
    4. TAX SUIT: Service Upon Non-resident: Presumption. Where the evidence is that the owner of the land at the time of the tax suit was a non-resident of the State, and is silent as to the kind of service had upon him in that suit, it is fairly justifiable to conclude that the service of process was by publication.
    5. --: -: By Publication: By Initials Only. Service of process in a tax suit by publication directed to W. G. Easley was insufficient as against William G. Easley, and a sheriff’s deed based upon a judgment rendered in pursuance to said publication did not convey the interest of William G. Easley in said land.
    6. -: -: By Personal Service: Identification of Defendant. W. G. Easley and William G. Easley are not the same name and are not idem sonans, and no inference or presumption will arise from the mere statement of the two names that they were one and the same person. Where William G. Easley was the owner of the land and there was personal service upon W. G. Easley in the tax suit, and there is no proof that W. G. Easley was the William G. Easley who owned the land, a sheriff’s sale and deed under the tax judgment against W. G. Easley will not be held to have conveyed the title of William G. Easley.
    Appeal from Butler Circuit Court. — Hon. J. C. Sheppard, Judge.
    Reversed and remanded (with directions).

      Brewer & Riley, for appellants.
    (1) The ten-year Statute of Limitation does not apply in this case for the reason the proof shows that the land was not in the actual possession of any one and had never been and that the land is wild, unimproved timber land. (2) The law of laches does not apply in this case. The proof shows that the land is wild, unimproved, timber land and not in possession of any one. Russ v. Sims, 169 S. W. 69. (3) The note on Carleton’s Abstract to the entry thereon showing a conveyance from William G. Easley to Isaac Bracken is a part of said entry and this note shows that the land in question was not conveyed. R. S. 1909, secs. 6415, 6417. This note being on the abstract is a part of it and shows that the land in question was not conveyed by said deed from William G. Easley to Isaac Bracken. When Carleton put k. 1. in said entry he put it there because he was of the opinion that k. 1. was intended to be conveyed and that the grantor William G. Easley intended to convey. This is the opinion of the abstracter, but no facts are stated by him showing upon what he based that opinion. But he says emphatically that the deed being abstracted by him did not show that k. 1. was in section 7. (4) The plaintiffs are not estopped, for the following reasons: (a) Carleton’s Abstract shows the land was not conveyed by William G. Easley and this fact could have been known by the defendant before he bought the land in question. Though silence in some cases will estop a party from speaking afterwards, yet “it is only when it becomes a fraud that it postpones.” If, therefore, the truth be known to both parties, or if they have equal means of knowledge there can be no estoppel. If a man holds title to his lands by deed which has been duly recorded, it is all the notice he is bound to give so long as he remains passive. Bayles v. Perry, 51 Mo. 453, cited and approved in Golterman v. Schierméyer, 125 Mo. 299; Hequembourg v. Edwards, 155 Mo. 522. (b) Nor will mere silence or some act done where the means of knowledge are equally open to both parties, estop the party doing the act or remaining silent. Blodgett v. Perry, 97 Mo. 273. It is held in Dameron v. Jamison that a purchaser at tax sale was bound by defects shown by the record and he could not plead estoppel. Dameron v. Jamison, 143 Mo. 491; Myers v. DeLisle, 168 S. W. 678. (5) Conceding there was a sale for taxes in a suit against W. Gr. Easley, yet said sale would be void for the reason the proof shows that William Gr. Easley was a non-resident from 1859 to the year 1896 and that the certificate of purchase was not issued to W. Gr. Easley but to William Gr. Easley. As a matter of course Easley, if sued, was brought into court by order of publication and that was not directed against William G-. Easley but directed to W. G-. Easley.

      John A. Hope and Ernest A. Green for respondent.
   WILLIAMS, C.

This is a suit under section 2535, Revised Statutes 1909, to determine the title to the north half of the southwest quarter of section 7, township 17 north, of range 11 east, in Pemiscot county, Missouri. The suit originated in the circuit court of Pemiscot county, but was taken on change of venue to Butler county, where trial was had before the court without a jury, resulting in a judgment in favor of the ■defendant. William Gr. Easley, the common source of title, acquired title to this land, September 12, 1858. He died in 1896. The plaintiff, William M. Easley, is a son of said William Gr. Easley, deceased. Plaintiff Russ is the grantee of the other surviving heirs of said William Gr. Easley, in deeds dated January 30, 1906. Defendant undertakes to show title by two different chains of title originating in the said common source. One of said chains of title is as follows:

1. Quitclaim deed from William G-. Easley and wife to Isaac Bracken, dated October 2, 1858. (It is contended by plaintiff that this deed did not convey the land in question. This proposition will he discussed in the opinion).

2. Deed from Bracken to Hinman.

3. Deed from Hinman to Hinman.

4. Deed from Hinman to Merchants National Bank of Cincinnati, Ohio. 1

5. Deed from the Merchants National Bank of Cincinnati, Ohio, to J. E. Franklin, dated December' 1, 1909. ' •

6. Warranty deed from J. E. Franklin to John A. Hope, defendant herein, dated November’7, 1908. •

Defendant’s other chain of title is as follows:

a. Sheriff’s deed, reciting sale of the land in question under execution issued on a judgment for taxes against “ W. Gr. Easley,” conveying the property' to Virgil P. Adams. The sale occurred November 4,1879; deed dated March 10, 1880.

h. Deed from Virgil P. Adams to Benjamin F: Bareroft.

c. Deed from Benjamin F. Bareroft to Thomas B. Simms.

• ■’ d. Deed from Thomas B. Simms to J. E. Franklin.

e. Deed fromo¡said J. E. Franklin to John A. Hope,- defendant herein.

There was also another sheriff’s deed for taxes reciting the sale of the land upon execution based upon á judgment for taxes rendered against the Merchants National Bank of Cincinnati, Ohio. The sale occurred November 4, 1879, the deed was dated March 10, 1880, and the land was conveyed to Virgil P. Adams.

The evidence tended to show that this land is what is known as swamp land, and is wild, timbered and unimproved and has not been in the possession of any one.

The evidence tended to show that said "William G. Easley left Pemiscot county in the year 1859, moving to the State of Tennessee, where he resided to the time of his death in 1896. It was shown in evidence that all of the circuit court records and the records in the recorder’s office of Pemiscot county were destroyed by fire in 1882. It was also admitted that abstracts of record known as the “Carleton Abstracts” had been properly certified by the judges of the county court and circuit court of Pemiscot county, and that the same were admissible under section 6415, Revised Statutes 1909.

The circuit court found that defendant had acquired by mesne conveyances all of the interest and title in said land which was originally owned by William G. Easley. The court further found that defendant was also entitled to recover on the ground of laches. Such further facts as are necessary to an understanding of the issues raised will be set forth in th© opinion.

OPINION.

The defendant Hope by mesne conveyances became vested with whatever title passed to the respective grantees in the deeds executed, October 2, 1858, by William G. Easley and wife to Isaac Bracken and in the sheriff’s deed dated March 10, 1860, based upon a sale under execution issued upon a tax judgment against W. G. Easley. If either of the two above mentioned deeds conveyed the title of William G. Easley in this land, the defendant is the owner and the judgment'of the circuit court is correct. If neither of these deeds conveyed or divested William G. Easley of his title, then the plaintiffs as heir and grantee of the heirs of said "William G. Easley, are the owners of said land and entitled to recover.

The trial court was of the opinion that defendant might also recover on the theory of laches upon the part of plaintiffs and those under whom they claim, but we are unable to find any evidence that would justify the application of the doctrine of laches to this case.

I. Did the title of William G. Easley to this land pass by the deed to Bracken, October 2, 1858? We think not. All the evidence concerning this deed is gathered trom the entries contained in Carleton’s Abstract on the page headed, “Carleton’s Abstract, Section 7, Township 17 North, of Range 11 East,” which were as follows :

“Grantor, William G. Easley and wife;

‘ ‘ Grantee, Isaac Bracken;

‘ ‘ Quantity 560 acres. Parts of section: a, b, c, d, e, f, g, h, i, j, o, p, k, 1. Consideration per acre $1.13. Date of instrument, October 2d, 1858. Date of filing: November 2d, 1858; Book B. page 33. Dower relinquished.”

Under the head of “Explanation” on the same page was the following in the handwriting of the maker of said abstract, viz.; “In last description of 80 acres, k, 1 no section is mentioned. In all probability section 7 was intended; but record does not say so.”

It appears from the evidence in this case that the abstracter used the small letters from a to p both inclusive to designate the sixteen different forty acre tracts of each section. The upper or northern row of forty acre tracts, beginning at the northeast corner of the section were designated respectively as a, b, c, d; the second row, beginning at the west were designated as e, f, g, h; the third row beginning at the east were: designated as i, j, k, 1; and the bottom or southern row beginning at the west were designated as m, n, o, p. It thus appears that k, 1, i\ "erred to in said explanatory note was the north half of the southwest quarter, which, if it were located in section 7, township 17, range 11, would he the land involved in this suit; but said note states the fact to be that the deed record does not state the section in which k, 1, is located. This explanatory note in so far as it states a fact concerning the record is just as competent to evidence title, or want of title, as any other portion of the abstract. The very purpose of an abstract is to state briefly the facts shown or disclosed by the record. Of course, the statement in said explanation of the abstracter’s conclusion as to what the grantor’s intention may have been would not be competent evidence of title. This is a suit to determine the existing title as shown by the record and is not an action to reform the deed, and therefore the grantor’s intention concerning any land not conveyed by the deed would he immaterial in the present action.

II. Did the sheriff’s deed based upon the tax proceedings against W. Gr. Easley convey the title of William Gr. Easley in said land? At that time the record title stood in the name of William Gr. Easley. The evidence in this case shows that William G. Easley, at the time of this tax proceeding, was a non-resident of Missouri. The evidence is silent with reference to the kind of service had upon defendant in the tax suit, -hut because of the fact that William G. Easley was a non-resident, at that time, we think the inference fairly justifiable that the service of process in the tax suit was by publication.

Service of process in a tax suit by publication directed against W. G. Easley would not he sufficient as against William G. Easley, and the sheriff’s deed based upon a sale had under said judgment would not convey the interest of William G. Easley in said land. [Turner v. Gregory, 151 Mo. 100; Vincent v. Means, 184 Mo. 327; Spore v. Land Co., 186 Mo. 656; Gillingham v. Brown, 187 Mo. 181; Ohlmann v. Sawmill Co., 222 Mo. 62.]

Would the situation he stronger if it should he assumed, arguendo, that personal service was had against W. G. Easley in the tax suit? Under the present evidence, we think not. We would then he confronted with a question as to identity without any evidence sufficient for its solution. Since W. G. Easley and William G. Easley are not the same name and are not idem sonans, there would be no inference or presumption arising from the mere statement of the two names that they were one and the same person. We know of no rule which would justify the inference or presumption that William G. Easley, the grantee in a deed, is the same person as W. G. Easley who after-wards is made an involuntary party to a tax proceeding concerning the same land. The burden of proving identity would certainly he upon the party whose title depends upon the proof of such identity; in the present case upon the respondent.

The judgment is reversed and the cause remanded with directions to the circuit court to enter judgment in favor of the plaintiffs.

Roy, G., concurs.

PER CURIAM

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

Brown and Walker, JJ., concur; Paris, P. J., not sitting.