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    THE STATE v. ED. F. ILGENFRITZ and LOTTIE DAVIS, Appellants.
    Division Two,
    February 23, 1915.
    1. HOMICIDE: Clothing: Blood Stains. To render blood-stained clotbes admissible in evidence in a murder trial, there must be preliminary proof that the clothing was worn by the accused at the time of the homicide, and that there has been no change in its condition between that time and the time of the test for blood stains or the time the clothing is admitted in evidence. The proof need not be positive or direct, but may be circumstantial, but should be such that the inference may be fairly drawn -that the clothing was worn at the time of the homicide and that the blood stains were then received, and in this case the evidence does not authorize either inference.
    2. —-—>—: Threats to Kill Defendant: Uncommunicated: As Explanatory of Inaction. One of the defendants is being prosecuted for hilling her husband, whose body was found just outside her door about daylight, where it had lain since about nine o’clock the previous evening, his pistol near-by, a ball having passed through his head. There was no evidence of self-defense. Held, that a threat made by deceased to the sheriff the preceding day to kill himself' and his wife, not having been communicated to her, was not relevant or competent as explaining her failure to go outside of the house after the shots were fired and heard, to ascertain what had occurred.
    3. -: Threats to Commit Suicide: Hearsay. The sheriff should have been permitted to testify, in behalf of defendants, that, on the day of the homicide or the preceding day, deceased stated to him that he intended to kill himself and his wife. Suicidal threats are not hearsay, but verbal acts, and are as trustworthy as unsuccessful attempts at suicide. They are to be regarded as acts from which the state of mind or intention may be inferred in the same manner as from the appearance of the person or his behavior, or his actions generally. [Overruling the obiter dictum in State v. Fitzgerald, 130 Mo. 407, and the subsequent cases following it]
    4. -: Sufficient Evidence. Evidence of intimate illicit relations between defendant and deceased’s wife, that defendant had threatened to kill deceased, and that defendant ran from the scene of the homicide immediately after the shooting, was sufficient, when taken with other facts of this case, to authorize a submission of the question of defendant’s guilt to the jury.
    5. - —:-: Motive. Evidence of motive alone is not sufficient to make out a prima-facie case of guilt.
    6. -- — : -: Insufficient Evidence: Conspiracy. Evidence of intimate illicit relations of deceased’s wife with the other defendant, there being none of threats or of a conspiracy to commit the crime, and her presence in her own home outside ■ the door of which the homicide occurred not being incriminating, and there being no testimony except the motive arising from the illicit relation connecting her with the crime, is not sufficient to sustain a verdict convicting her of the murder of her husband.
    Appeal from Adair Circuit Court, —Hon. Nat M. Shelton, Judge.

      Reversed and remanded.

      J. A. Cooley for appellants.
    (1) Defendants’ demurrer should have been sustained. Neither at the close of the State’s case nor at the close of the whole case, was there evidence sufficient to justify submitting the case to the jury, nor to sustain a verdict against either defendant. The verdict is the result of passion and prejudice of the jury, and should be set aside, the judgment reversed and defendants discharged. State v. Francis, 199 Mo. 671. (2) Reversible error was committed in excluding the evidence of Ex-sheriff Williams to the effect that deceased had just before threatened to kill his wife ancl himself. The threat to kill himself, had there been no mention of his wife, should have been admitted in view of his act in borrowing the pistol with which he was hilled, and his conduct and statements at the house as testified to by Mrs. Davis and her children. State v. Fitzgerald, 130 Mo. 432. And in view of the defense offered and the facts testified to by Mrs. Davis and the children, the borrowing of the pistol, going to the house late at night obviously for some unlawful purpose, the testimony of .the Danes family as well as the Davises as to what transpired there and the stress' laid by the State on Mrs. Davis’s failure to give an immediate alarm, the threat of Davis to kill his wife as well as himself was clearly admissible and its exclusion reversible error. It tended to characterize and explain his presence and purpose there and show that the fear which actuated her in failing to go out were well founded. State v. Elkins, 63 Mo. 164. (3) The clothes offered by the State were not sufficiently identified, or shown to be in the same condition, if defendant’s clothes, as when they were in his possession; they were shown not to be the clothes he had on when arrested, and so far as there was any evidence on the subject it showed they were not worn by him the night of the alleged homicide. There was no sufficient foundation laid for their introduction, nor for the evidence of Dr. Deason as to alleged bloodstains, and Dr. Deason’s qualification was not shown.

      Jolm T. Barker, Attorney-General, and Lee B. Ewing, Assistant Attorney-General, for the State.
    (1) The evidence justified' giving an instruction on murder in the second degree. State v. Andrews, 76 Mo-. 101. (2) The court did not err in sustaining objections to proof of alleged statements of deceased, not made at time of the shooting in question, tending to show that deceased contemplated suicide. These alleged statements were not accompanied by any attempt, at the time, to carry them into execution; and, therefore, were hearsay and inadmissible for any purpose. State v. Baurle, 145 Mo. 25; State v. Punshon, 133 Mo. 52; State v. Punshon, 124 Mo. 457; State v. Terry, 172 Mo. 218; State v. Fitzgerald, 130 Mo. 432; State v. Curtis, 70 Mo. 597; 1 Greenleaf on Evidence (14 Ed.), sec. 102; State v. Wilson, 250 Mo. 329. (3) The testimony tending to prove an alleged statement made by deceased, a day or two before the shooting, that he intended to kill his wife was properly excluded. There was no pretense of self-defense in this case. The defendants denied the killing; therefore, this testimony was the baldest hearsay, not binding on the State, and not admissible for any purpose. See cases last cited. (4) The court properly admitted in evidence the pants and shirt proven to have been worn by defendant Ilgenfritz before the killing, and which he afterward had with him in jail. There was blood upon the weatherboarding on the house, where deceased was shot, up as high as the fifth board.. There were stains upon the pants that were proven to be human bloodstains. These facts were sufficient to warrant the introduction of the pants in evidence, and also the testimony of Dr. Deason as to the character of stains upon same. State v. Neal, 178 Mo. 63; State v. Sherouk, 78 Conn. 718; State v. Roszcyniala, 125 Wis. 414; State v. Nenfeld, 165 N. Y. 431; People v. Anthony, 146 Cal. 124; State v. Henry, 51 W. Va. 283. (5) • Defendant’s demurrer to the evidence was properly overruled. The evidence amply supports- the verdict. State v. Baurle, 145 Mo. 1; State v. Concelia, 250 Mo. 411; State v. Rnmfelt, 228 Mo. 446; State v. Rasco, 239 Mo. 335; State v. Barrington, 198 Mo. 23. While the evidence is largely circumstantial, it is ample to prove the two things necessary to uphold the verdict, i. e.: First, the corpus delicti, the criminal act; and, second, the defendant’s guilty agency in the criminal act. (a) To justify a conviction on circumstantial evidence alone, the circumstances should be consistent with each other and with the guilt of the defendant. State v. Maxey, 102 Mo. 374; State v. Hendricks, 172 Mo. 654; 4 Elliott on Evidence, sec. 2709. The circumstances of this case fully meet these requirements; besides, there was direct testimony connecting defendants with the crime, (b) If there is any evidence to support the verdict, then it is the right of the jury to pass upon: First, the weight of the evidence. State v. Baurle, 145 Mo. 1; State v. Shelton, 223 Mo. 141; State v. Devorss, 221 Mo. 477; State v. Sassman, 214 Mo. 477; State v. McDowell, 214 Mo. 343. Second, the credibility of witness. State v. Devorss, 221 Mo. 447; State v. Sassman, 214 Mo. 738; State v.' McDowell, 214 Mo. 343; State v. Wolley, 215 Mo. 687; State v. Baurle, 145 Mo. 23. Third, to determine conflict in the evidence. State v. Baurle, 145 Mo. 23; State v. Devorss, 221 Mo. 477; State v. Sharp, 233 Mo. 298.
   WILLIAMS, C.

Under an indictment charging them jointly with the murder of Jacob W. Davis, defendants were tried in the circuit court of Adair county and found guilty of murder in the second degree. The punishment of defendant Ilgenfritz was assessed at fifteen years and that of defendant Lottie Davis at ten years. Defendants duly perfected an appeal to this court. The evidence on the part of the State tended to establish the following facts: The dead body of Jacob W. Davis, who, prior to his death, was the husband of defendant Lottie Davis, was first discovered about 6:30 a. m., on Sunday, October 27, 1912, on the ground, a few feet in the rear of the house in which defendant Lottie Davis and her five daughters then lived in the city of Kirksville, Missouri. The house was a four-room cottage, fronting east, having one front and one rear door. Deceased’s body was found lying on its left side in a north-and-south position; the feet near a brick walk at the rear door, and the head toward the south. Underneath the body was a thirty-eight-caliber pistol containing two discharged' and three loaded cartridges and between his body and the house was a leather walking stick with a steel rod through the middle. A tub was located between the body and the house. Just north of the brick walk or platform was found a man’s light colored hat. The band in the hat contained the initials of the defendant Ilgenfritz. Deceased had been seen wearing this hat a few days prior to the tragedy; one witness saying that he understood that deceased and defendant had traded hats some time prior to the tragedy. A black mark caused by powder burn or smoke was discovered on the under side of the rim of the hat. One strip of weather-boarding on the south side of the house was chipped or split, and there were spots of blood on the weather-boarding, begining on the fifth board from the foundation and extending down to the ground. There was a bullet hole, caused by a thirty-eight-caliber ball, in the head of the deceased. The bullet entered about an inch and a half above the right ear, passed entirely through the brain and skull and lodged under the skin about two inches above and about three-quarters of an inch in front of the left ear. The skin around the left eye was blackened. The revolver found under the body of the deceased was identified as the property of one C. IX Stott, a citizen of Kirks-ville, and shown to have been loaned by said Stott to the deceased on the afternoon preceding the homicide. At the time of the tragedy, deceased and his wife, because of domestic troubles, were living apart; the deceased making his home with a daughter by his first wife. The house in which Mrs. Davis lived, which for convenience will be hereinafter referred to as the Davis home, was located about seventy-five feet west of the Wabash railroad tracks which run north-and-south at this point. One hundred and seventy-five feet south of the Davis home was the home of - Mrs. Danes and her three children. The ground between the Davis home and the Danes home was open and unoccupied. The Davis home was in the southwest part of the city and in going to and coming from the main part of town the people of this section frequently used the railroad right of way as a footpath, coming down the railroad tracks to a place in front of the Danes home where there was a gap in the fence and a path led into the road which ran north-and-south in front of the two houses. Defendant Mrs. Davis and defendant Ilgenfritz appeared to be very intimate and friendly in their association with each other. ' Ilgenfritz had been seen by neighbors to go into the Davis home on different occasions and sometimes as often as two or three times a day. One witness testified that he saw defendant go into the Davis home about sis o’clock on the evening of the homicide. Ilgenfritz and Mrs. Davis were also seen together at different places of amusement and on some occasions the husband of Mrs. Davis accompanied them. On one occasion, at night, while the two defendants were sitting on a railroad bridge, near the depot at Kirksville, Ilgenfritz was seen to kiss Mrs. Davis and pnt Ms hand under her clothing. It appeared that the deceased had accompanied them to this place, but, just prior to the occurrence of the above, the deceased had turned away a few steps to go after some pop. The above transaction was noticed by his daughter by his first wife. On another occasion, the defendants and deceased were together fishing at the city reservoir. The two defendants were sitting together under an umbrella, while the husband was a few feet away, out in the rain. At this time the manager of the water company saw Ilg’enfritz have his hand under Mrs. Davis’s clothing. On the evening of the homicide and between eight and nine o’clock at night, defendant Ilgenfritz and a woman were seen about two miles from the Davis home walking, along a country road. Ilgenfritz had his arm around the woman. At one time prior to this, Ilgenfritz was seen walking along a road south of Kirksville at night with a woman. About two or three weeks before the homicide two witnesses heard Ilgenfritz say, referring to the deceased, that “he would get the d-old s-of a b-, if he fooled with him.” One W. Shorter, who at the time of the trial was serving a term in the penitentiary for larceny, testified, on behalf of the State, that in the day of the tragedy, he had gone to the town of Millard, a few miles south of Kirksville, in search of work; that he left Millard, upon his return, about seven p. m., and walked back to Kirksville along the Wabash railroad right of way; that when he was a short distance south of the Davis home, he heard a pistol shot and stopped for a moment to listen, then continued walking toward the north along the track, and when he had reached a point a short distance south of and opposite the Davis home, he heard another shot, and that immediately thereafter he saw the defendant Ilgenfritz come running from the back of the Davis house toward the railroad track, coming through two fences out onto the right of way of the railroad at a distance of fifteen or twenty feet in front of the witness; that it was a moonlight night and he plainly recognized defendant; that defendant was bare-headed and was without either coat or vest; that defendant hastened on down the track in front of the witness and disappeared at a distance of about three or four blocks.

Upon the cross-examination of this witness, it was shown that he and defendant Ilgenfritz had spent a few days together as inmates of the jail at Macon.and that the witness had an unfriendly feeling toward the defendant. The witness did not tell any one about having this information concerning the crime- until two weeks before the trial, at which time, the witness, then in the penitentiary, desiring, as he says, to lead a better life, wrote a letter to the prosecuting attorney. One witness for the State, upon cross-examination, testified that the reputation of witness Shorter for truth and veracity was bad. Two witnesses testified that they saw witness Shorter in Millard on the day in question.

The State was permitted to introduce in evidence, over the objection and exception of defendant, some clothing, more particularly a pair of trousers, claimed to be the property of defendant Ilgenfritz. There was some evidence to the effect that Ilgenfritz was seen wearing this pair of trousers about two days prior to the tragedy. It also appeared in evidence that some time after defendants’ arrest, Ilgenfritz was taken to Macon and there confined in jail. There was also evidence introduced that an express package was sent from Kirksville by Mrs. Ilgenfritz, addressed to defendant at Macon, Missouri, in care of the man who was jailer at that time. It was not shown what this package contained. Mr. James Simms testified that some time in December, 1912, defendant Ilgenfritz, who had then been returned to jail at Kirksville, said that he had some clothes at Macon and that a part of the clothing was “a pair of pants similar to the ones he had on, only he had worn them and got them dirty, ’ ’ and that he would give the witness this pair of trousers if witness would pay the express charge for sending all the clothing. Defendant afterward wrote a letter to the sheriff at Macon and had the bundle of clothes sent by express to witness Simms at Kirks-ville. Mrs. Simms testified that a short time after this she was at the jail in Kirksville, in the presence of her husband aiid the.defendant Ilgenfritz, and her husband told her to go to the express office and get a package of clothes and that the defendant had given him a-pair of “pants.” And that Simms told Mrs. Simms, in the presence of defendant, to get a gallon of gasoline and wash the “pants” and press them and bring them to him. On January 1, 1913, the prosecuting attorney, together with the sheriff and another gentleman, called at the home of Mrs. Simms and examined the clothing which Mrs. Simms had received in an express, package. At this time the prosecuting attorney wrapped the clothing in a bundle and took them to his office where they were kept for two or three days and then, by him, deposited in a safety vault in the Citizen’s National Bank at Kirksville. Several weeks later, Dr. Deason, who testified as an expert for the State, called at the Citizen’s National Bank and by pre-arrangement received from that institution the bundle of clothing. Dr. Deason testified that he cut several pieces of cloth from the trousers and made scientific tests of the spots thereon to ascertain whether or not there were any traces of human blood; that he made four different tests of these spots (the first test being made about April 21, 1913), and found that the stains upon the clothing were caused by human blood.

One witness testified that while Ilgenfritz was confined.in the jail at Kirksville, he overheard a conversation between Ilgenfritz and his wife in which Ilgenfritz told her “That she must not he so sore at Mrs. Davis, because if they become enemies - it would he bad for him.” A number of witnesses for the State also testified that many years before the deceased had received-an injury to his right arm, causing the elbow joint to become stiff so that he could not raise his right hand to the hack of his head.

The evidence on the part of defendants tended to established the following facts:

About supper time on the day of the tragedy, deceased bought some carbolic acid at a drug store in Kirksville. Mrs. Danes, who lived in the first house south of the Davis home, testified that she and her three children had been up town on the night of the tragedy and were returning home between nine and ten o’clock at night, coming south along the Wabash tracks; that when they were within three or four blocks of the Davis home, Mrs. Davis, coming from the east, came up onto the railroad track and joined them. They walked along together .until they reached the path opposite the Danes home and there separated, going to their respective homes. A short time after coming home, one of Mrs. Danes’ sons went to the well, at the rear of the Danes home, for a drink. While at the well, he heard some noise and loud talking in the rear of the Davis home; that it was a clear moonlight night and he looked in the. direction of the Davis home and saw a man standing on the west side of the Davis home, near the hack door thereof, and saw the man turn around and shoot toward a shed. Upon hearing the shot, Mrs. Danes rushed out to the rear of her home and saw the man standing hack of the Davis home. Mrs.. Danes and her son then returned into their house and in two or three minutes thereafter heard another shot. A short time after the second shot, Mrs. Danes and some of her children looked out the north window of their home toward the Davis home, .but saw no one. Tbey did not know any one had been killed until the next morning when they saw the body of the deceased on tbe ground near tbe place where tbey had seen tbe man tbe night before.

Anna Davis, tbe fourteen-year-old daughter of deceased and defendant Lottie Davis, testified that at tbe time of tbe tragedy she and her mother and sisters were inside tbe Davis home; that her father, tbe deceased, came to tbe back door of tbe home about twenty minutes before ten o’clock p. m.; that her mother answered saying: “Is that you, Jake?” and that he replied, “Yes.” Mrs. Davis then said, “What do you want?” To which be answered, “Come to tbe door and I will show you what I want.” Mrs. Davis said, ‘ ‘ I told you not to come back any more; you come down to-morrow, I will see you.” Thereupon deceased said, “I have got just two shots to fire and one is for me and one is for you.” Mrs. Davis then said, “I am going to call tbe neighbors,” and that deceased replied, “You won’t have time.” Two shots were then fired and tbe witness beard a sound like an object falling and beard a tub rattle outside. That tbe inmates of tbe Davis home were frightened; that none of them went outside to see what happened and no one was notified during tbe night. This witness admitted that she carried a note from defendant to her mother on the afternoon of tbe tragedy, and that Ilgenfritz told her that her mother wanted to borrow some money and that tbe note would tell Mrs. Davis where to meet him. That on tbe evening of tbe tragedy her mother left home about 8:30 and returned about nine o’clock. This witness denied that on tbe day of her father’s funeral she told her aunt that “Ilgenfritz killed Papa.”

Tbe testimony of Jessie Davis and Stella Davis, daughters of Mrs. Davis and tbe deceased, and also Mrs. Davis’s testimony was substantially tbe same as tbe testimony of Anna Davis. Some of them testified expressly that defendant Ilgenfritz was not at tbe Davis home and some of them testified that no one was on the inside of the house except Mrs. Davis and her children, and that they heard no one except the deceased on the outside of the house. Some of the members of Mrs. Davis’s family testified that after the two shots were fired they were very much frightened and the entire family went into a bedroom where they remained during the night, some of them not sleeping any during the night. One daughter was ashed whether she thought her father had killed himself when she heard the pistol shot, and she replied: “I didn’t know whether he shot himself or not; he pretended to kill himself so much.”

Defendant Ilgenfritz denied that he was at the Davis house on the night of the shooting and denied all knowledge of the facts concerning the shooting. He also denied that the pants which were introduced into evidence belonged to him. He admitted that he and Mrs. Davis were out together on the night of the tragedy and walked along country roads to the south of town, and came back into town and separated at a point about half a mile east of the Davis home, he going to his home and Mrs. Davis going to her home.

Mrs. Ilgenfritz testified that her husband came home about nine o’clock on the night of the tragedy; that when he came in she was in bed and opened the door to let him in without arising from her bed; that upon asking defendant what time it was he replied that it was nine o’clock. She denied the testimony on the part of the State to the effect that her husband while in jail had told her to keep on good terms with Mrs. Davis in order not to injure him.

A number of witnesses testified that deceased had g’ood use of his right arm and that he could raise his right hand as high as his head. Testimony was also introduced to show that the hat found at the place of the tragedy was one that Ilgenfritz had traded to the deceased several weeks before. There was also evidence to the effect that when deceased’s body was examined there were powder burns on his hair just above the place where the bullet entered.

The State offered in rebuttal testimony of the aunt of Anna Davis to the effect that the Davis girl had stated to her that “Ilgenfritz killed Papa.” There was also testimony denying the presence of powder burns on deceased’s hair. It was shown that the distance that Ilgenfritz admitted he walked with Mrs. Davis on the night of the tragedy was about four miles'. In rebuttal, the daughter of the deceased by his first wife testified that the carbolic acid purchased by deceased on the night of the tragedy was purchased by him at her request, the same to be used by her for the purpose of killing bedbugs. The reputation of both of the defendants for truth and veracity was shown to be bad. It was also shown that the testimony of the Davis girls at the coroner’s inquest contradicted somewhat their testimony on the trial. It was further shown that at the coroner’s inquest, defendant Ilgenfritz testified and denied that he was out with Mrs. Davis on the night of the tragedy. Ilgenfritz admitted that he so testified falsely at the coroner’s inquest, saying that his reason for so doing was because of the excitement existing and further that since there was nothing immoral between them, he did not want to “throw no reflection” on the family of Mrs. Davis or upon his own family.

I. It is contended that the court erred in admitting ^11 evidence> over the objection and exception of defendant, (1) certain clothing of defendant Ilgenfritz and (2) the testimony of Dr. Deason that upon making’ a scientific test he found that the spots or stains on said clothing were caused by human blood.

The correct rule concerning the admissibility of such evidence is stated in Wharton on Homicide (3 Eel.), par. 611, page 948, as follows: ‘‘To render bloodstained clothing admissible in evidence in snch cases, however, its identity must be established, and it must appear that it had not been interfered with, either purposely or otherwise.” To the same effect are the following authorities: State v. McAnarney, 70 Kan. 679, l. c. 689; State v. Hossack, 116 Iowa, 194, l. c. 203; State v. Craft, 118 La. 117; State v. Moore, 168 Mo. 432, l. c. 443; 6 Ency. of Evidence, 671. In other words to render such evidence admissible, there should be preliminary proof that the clothing was worn by the accused at the time of the tragedy and that there has been no change in the condition of the clothing between the date of the tragedy and the time of the test of the bloodstains or the time when the clothing is admitted in evidence. It is not essential that this preliminary proof be made by positive or direct evidence, but may be shown, as any other controverted fact, by evidence circumstantial in its nature. [People v. Neufeld, 165 N. Y. 43, l. c. 47.] However the proof should be such that the inference may be fairly drawn that the clothing was worn at the time and that the bloodstains were there received.

While in the present case there was evidence tending to prove that the clothing belonged to defendant Ilgenfritz and was worn by him two days prior to the tragedy, yet, as to the condition of the clothing, whether or not containing bloodstains prior to the time the first test was made on April 21, 1913, six months after the tragedy, the evidence is entirely silent. Neither was there proof concerning the custody of the clothing during the interim between the tragedy and the time it was delivered to Dr. Deason, which would tend to show that the clothing had not been interfered with. The-testimony shows that some time in December, 1912, the clothing was received by witness Mrs. Simms at the express office at Kirksville, in an express package claimed to have been forwarded from the jailer at Macon, Missouri, consigned to the husband of the witness. At this time defendant Ilgenfritz was confined in the jail at Kirksville. About January 1,1913, Mrs. Simms, at her residence, delivered the clothing to the prosecuting attorney in the presence of the sheriff. Thereupon the prosecutor took the clothing to his office where it remained for two or three days and was then placed in a deposit vault at the bank. Later Dr. Deason obtained the clothing from the bank and made the test. None of the witnesses who handled the clothing prior to its delivery for the scientific test undertook in any manner to describe the condition of the clothing. We desire in no manner to cast reflection upon those persons who are shown to have handled the clothing, but the above quoted rule required that either it should have been shown that the clothing contained the spots when delivered for the test and that this condition existed back to the time of the tragedy or back to the time when the clothing was in the custody of defendant under such circumstances as would preclude the probability of prior outside interference therewith, or the preliminary proof should have shown that the custody and care of the clothing between the date of the tragedy and the test was such that no change occurred in the condition thereof. So far as shown by the present record, the clothing may have been accessible to any person from the time of the tragedy until the test was made. It is true that Mrs. Simms testified that just prior to going after the express package, and while at the jail in Kirksville, in the presence of defendant Ilgenfritz, Mr. Simms informed her that defendant had given him a pair of trousers which would be found in the express package and that he (Simms) directed her to wash the same in gasoline and press them and bring them to him. But nothing was said in this conversation concerning blood spots or stains upon the clothing. Gasoline is commonly used in the cleaning of clothing and it does not appear ■unusual that Simms directed that gasoline he used in cleaning clothing which he understood had been worn by defendant while in jail. Under such circumstances, little importance can be attributed to the statement or to the defendant’s silence when the statement was made. Tested by the rule, above announced, sufficient foundation was not laid for the introduction of the clothing and the testimony concerning the bloodstains, and the same was therefore erroneously admitted.

II. The defendants offered to prove by witness Williams, the sheriff of Adáir county at the time of the tragedy, that, either on Friday preceding the killing or .on the day of the killing, deceased stated that he intended to kill himself and wife, and that deceased repealed the threat in the presence of the witness two or three times. The State objected to the offer on the ground that the evidence was hearsay and therefore immaterial. The court sustained the objection and excluded the offer and defendants saved an exception., This ruling is assigned as error. There was no evidence of self-defense in the case. Neither was there evidence that this threat to kill Mrs. Davis had been communicated to her. It therefore could not he said, as insisted.by appellants, that it became relevant as explaining Mrs. Davis’s failure to go outside of her home after the shots were fired, to ascertain just what had occurred. The court therefore did not err in excluding the deceased’s threats to kill his wife.

But the point concerning the admissibility of the threats of deceased to commit suicide presents a more serious question and one that leads us into the realm of conflicting authorities.

The cause of deceased’s death was the difficult question to he determined by the triers of the facts. The evidence offered pro and con was wholly circumstantial. There was circumstantial evidence tending to corroborate the theory of the State, at least with reference to the implication of defendant Ilgenfritz in the hilling. There was also circumstantial evidence corroborating the defense’s theory of suicide. It may be conceded, therefore, that, under such conditions, any competent evidence tending to corroborate the theory of suicide would be very material and relevant to the issues involved. Was the testimony under the circumstances admissible? Upon careful consideration, we have reached the conclusion that it was. At the outset we are met by the following authorities which hold the contrary view: State v. Punshon, 124 Mo. 448, l. c. 457; State v. Fitzgerald, 130 Mo. 407, l. c. 429; State v. Punshon, 133 Mo. 44, l. c. 52; State v. Bauerle, 145 Mo. 1, l. c. 25; Siebert v. The People, 143 Ill. 571, l. c. 584; Nordgren v. The People, 211 Ill. 425, l. c. 433.

On the other hand, the following authorities hold that such evidence, under the present circumstances, is admissible: Commonwealth v. Trefethen, 157 Mass. 180, l. c. 188; People v. Conklin, 175 N. Y. 333, l. c. 343; State v. Beeson, 155 Iowa, 355, l. c. 362; Shaw v. People, 3 Hun, 272, l. c. 276; Nordan v. State, 143 Ala. 13, l. c. 26; Blackburn v. State, 23 Ohio St. 146, l. c. 165-6; Boyd v. State, 14 Lea, 161, l. c. 175; State v. Kelly, 77 Conn. 266, l. c. 268; 3 Current Law, p. 1654; 5 Columbia Law Review, 157; 1 Wigmore on Evidence, sec. 143; 3 Bishop’s New Criminal Procedure, sec. 631 (5); 1 Wharton’s Criminal Evidence (10 Ed.), sec. 237a.

The cases which hold such evidence inadmissible do so on the theory that the threats of suicide are hearsay. The only case in this State which undertakes to discuss the point at any length is the case of State v. Fitzgerald, 130 Mo. 407. An examination of that opinion, however, will disclose that such evidence was admitted in that case and the entire discussion is based upon a supposed case. [Id. l. c. 429.] The decision of the point was therefore not necessary to a determination of that case and the ruling was obiter dictum. This case appears to have been cited by the later cases without further discussion. The conclusion stated in the Fitzgerald case was that threats of suicide in such cases are not admissible unless they were a part of the res gestae or dying declarations or unless at the time made they were accompanied by an attempt to carry the threat into execution. As to why such threats when accompanied by unsuccessful attempts at execution would then lose their hearsay nature and become proper evidence, the authorities taking that view do not give a satisfactory explanation, and it is indeed difficult to discover any logical reason therefor.

It appears that the error in the logic of the opinions holding such threats inadmissible occurs in assuming that such threats are merely hearsay. The probability of suicide would be stronger if it could be shown that deceased had a suicidal intent or design. The existence of such an intent or design would therefore become a material fact bearing upon the issues involved. This intent or design is a mental condition and could .be evidenced only by deceased’s acts or words. All authorities would perhaps agree in saying that any unsuccessful attempt at self-destruction would be admissible as original evidence of the existence of suicidal intent. We see no distinction between such acts and any “verbal acts” which also indicate the same mental state or condition. It might be said that the verbal act was not worthy of belief because it could be made when the declarant had no such intention. As much could also be said concerning an act amounting to an unsuccessful attempt at suicide, for it is not impossible that such acts could be feigned. But since the greater probability is that both are but the direct result of the mental state their exclusion should not be based upon a mere possibility of error. And even though it be conceded, arguendo, that the verbal acts were less trustworthy than, the acts amounting to an attempt of suicide, yet, as was well said in the case of Commonwealth v. Trefethen, supra, l. c. 188, “this affects only the weight of the evidence” and not its admissibility.

Suicidal threats are verbal acts, not narrative in character and therefore hearsay, but are- the direct result of the action of the mind having the suicidal intent or design, and, in cases like the present, should be admitted as original evidence of the condition of the mind from which they spring. This is the theory of the case of Commonwealth v. Trefethen, supra, the leading case holding such evidence admissible. In that case the testimony excluded was the threat of deceased that she was going to drown herself. The court set aside the verdict on the ground that the exclusion of such evidence was error. In the course of its opinion, the court (italics ours) said:

“Although evidence of the conscious voluntary declarations of a person as indications of his state of mind has in it some of the elements of hearsay, yet it closely resembles evidence of the natural expression of feeling which has always been regarded in the law, not as hearsay, but as original evidence (1 Greenl. Ev., sec. 102); and when the person making* the declarations is dead, such evidence is often not only the best, but the only, evidence of what was in his mind at the time.

‘ ‘ On principle, therefore, we think it is clear that, when evidence of the declarations of a person is introduced solely for the purpose of showing what the state of mind or intention of that person was at the time the declarations were made, the declarations are to be regarded as acts from which the state of mind or intention may be inferred in the same manner as from the appearance of the person or his behavior, or his actions generally. In the present case the declaration, evidence of which was offered, contained nothing in the nature of narrative, and was significant only as showing the state of mind or intention of the deceased.”

The above case has been many times cited with approval by the courts and text-writers above cited, and after careful research into the subject we have reached the conclusion that it states the correct rule regarding the admissibility of such evidence. It therefore follows that-the above cited Missouri cases, in so far as they conflict with what is herein decided, should be no longer followed.

III. It is contended that the evidence is not sufficient to support the verdict. After carefully reviewing the evidence, we have reached the conclusion that there is sufficient evidence to justify the submission of the case to the jury with , reference to defendant Ilgenfritz, but not sufficient as against defendant Lottie Davis. The intimate relation shown between Ilgenfritz and deceased’s wife furnished evidence of motive. There was also evidence that Ilgenfritz had threatened to kill deceased and one witness testified that Ilgenfritz ran from the scene of the killing immediately thereafter. This, unaided by the evidence as to bloodstains which was improperly admitted upon the present trial, was sufficient, when considered with the other facts shown in evidence, to support the verdict found. But with reference to defendant Lottie Davis, there was no evidence of threats nor was there any evidence of a conspiracy between herself and Ilgenfritz to commit the crime. Her presence near the scene of the tragedy is not incriminating, because she was at a place where she had a right to be and where she should have been at that time of night, to-wit, in her home with her five children. There was no evidence that the killing occurred inside the house, but the evidence as to the bloodstains on the weather-boarding outside, the pool of blood on the ground under deceased’s head and the condition in which his body was found tend strongly to show that the killing occurred outside. It was true that the evidence as to motive applied to Mrs. Davis the same as to the other defendant, but evidence of motive alone is not sufficient to make out a primafacie case of guilt. [State v. Ruckman, 253 Mo. 487, l. c. 499, 500.]

The evidence against Mrs. Davis in the present case was not more incriminating than was the evidence against Mrs. Harris in the case of State v. Larkin and Harris, 250 Mo. 218, l. c. 233, in which case it was held that the-evidence was insufficient.

What is here said renders it unnecessary to discuss the instructions which submitted the case to the jury on the theory that Mrs. Davis participated in the killing by being present, aiding and abetting, etc., this for the reason that under the evidence all of the instructions concerning the case as against Mrs. Davis were erroneously given because of the failure of the proof to make a case against her. If additional evidence, connecting Mrs. Davis with the killing, is not produced, she should be acquitted. Other errors are assigned, but since they are such as will not likely occur upon the retrial of the case, it becomes unnecessary to discuss the same here.

The judgments are reversed and the cause remanded.

Roy, G., concurs.

PER CURIAM.

The foregoing opinion of Williams, 0., is adopted as the opinion of the court.

All the judges concur.


source: Caselaw Access Project

author: WILLIAMS, C. PER CURIAM

license: Public Domain

text:
    THE STATE v. ETHEL GREEN et al.; C. C. CRAWFORD, Appellant.
    Division Two,
    February 23, 1915.
    RECOGNIZANCE: Delivery of Prisoner Before Judgment. If the surety on a bail bond delivers the prisoner into court before final judgment, and pays all costs that have accrued at the term at which the prisoner was recognized to appear, the surety is entitled to be discharged from any further liability upon the recognizance. And though the prisoner escaped to another State, and the case was continued for several terms at the surety’s reguest, and though at said terms the prisoner might have been prosecuted because of the presence of the prosecuting witness, and when the prisoner was produced' the case could not be prosecuted because of the absence of said witness in another State, the surety, nevertheless, if that is the term to which the case had by the court’s records been continued, is entitled to be discharged from liability on the recognizance.
    Appeal from St. Louis City Circuit Court. — Hon. Thomas G. Hennings, Judge.
    Reversed.

      William E. Fish and Boy A. Fish for appellant.
    We did all that was possible with time, effort and money to deliver the principal into court, and did so. The court was satisfied we had done so and set the forfeiture aside and we paid all costs; in other words, we showed good cause. What cause was shown to the court to reinstate the forfeiture we don’t know. As there is no evidence of any such proceedings before us, or this court, we will ask this court to read the case of State v. Taylor, 136 Mo. 462. Under this decision and Sec. 5124, R. S. 1909, this appellant should be relieved from paying this $800.

      John T. Barker, Attorney-General, and Shrader. P. Howell for the State.
    (1) After judgment has been pronounced the court has full power to correct, alter or vacate it at any time during the term. Sec. 4150, R. S.' 1909; Freeman on Judgments, sec. 90; Aull v. Trust Co., 149 Mo. 13; State v. Harrison, 10> Mo. 687; State v. Gartrell, 171 Mo. 487. (2) The fact that the principal is imprisoned in a foreign jurisdiction is riot sufficient to work the release of her surety upon the former’s failure to appear in the court to which recognized. The bond was given on December 1, 1911, and the principal failed to appear in the court of criminal correction on December 12, 1911, and again made default on the 21st day of December, 1912, on which latter date the record of the said Court was transferred to and filed in the circuit court for further proceedings. If the principal were in fact within the jurisdiction of the St. Louis Court of Criminal Correction on either of the above dates and failed to appear, the liability of the surety under the bond then became fixed, and it would affect in nowise such liability that subsequent to such date the principal voluntarily went to a foreign jurisdiction and was there imprisoned. Upon a careful reading of the evidence submitted on the hearing in the circuit court, it will appear that the surety first made an effort to return the principal from, the State of Illinois in the spring of 1913, which was more than a year subsequent to the breach of the bond. When a person charged with crime is delivered over to the jailor of his own selection, the latter must produce the one so recognized at the time and place designated, or in lieu thereof be prepared to meet the penalty of the bond which he has voluntarily entered into. Secs. 5019, 5134, R. S. 1909; Kelley’s Crim. L. & Pr., sec. 100, p. 86; 5 Cyc. 133; State v. Shore, 6 Mo. 640; State v. Horn, 70 Mo. 466; State v. Taylor, 136 Mo. 465; State v. Epstein, 186 Mo. 101; St. Louis v. Smith, 235 Mo. 66; United States v. Yan Fossen, 1 Dill. 406; State v. Mc-Allister, 54 N. H. 156; State v. Merrihew, 47 Iowa, 112; State v. Cain, 55 Ala. 170. (3) In the absence of abuse of the trial court’s discretion in determining the sufficiency of an excuse offered by surety for failure to produce the principal, this court will not interfere. 5 Cye. 136; State v. Clifford, 124 Mo. 492. (4) It is conclusively shown by the record that the principal was in lawful custody, charged with the felony of grand larceny; that she was released upon the faith of the recognizance voluntarily entered into by the surety and that the terms of such bond were breached and that the surety failed to produce the principal for more than one year subsequent to the day to which she was lawfully recognized.
   WILLIAMS, C.

On January 6, 1913, a scire facias was duly issued from the office of the clerk of the circuit court of the city of St. Louis, citing appellant to appear and show cause why execution should not issue against him upon a debt of $800, acknowledged to he due by a forfeited recognizance. From said writ, it appears that, on November 21, 1911, appellant became surety upon a recognizance for the appearance of one Ethel Green, alias Ethel Brown, before the St. Louis Court of Criminal Correction on the 12th day of December, 1911, then and there to answer the charge of grand larceny, etc.; that numerous continuances were granted and finally, on December 21, 1912, default was made by said Ethel Green, and thereupon said St. Louis Court of Criminal Correction duly certified said recognizance and record of said default to the circuit court of the city of St. Louis and judgment of forfeiture was entered therein.

The proceeding under the scire facias was continued from time to time, at the request of said surety, until May 6, 1913, on which date the surety produced the said Ethel Green in court and paid the costs and the court made an order setting aside the forfeiture of said bond. Thereafter the .State filed its motion to set aside the order setting aside the forfeiture, which motion was by the court sustained on May 31, 1913, and the proceeding under the scire facias was reinstated. Later said surety filed answer to the writ and thereupon the State filed its reply. On February 13, 1914, evidence was heard upon the issues presented by the pleadings, and, upon said date, the court entered final judgment against said surety and ordered that an execution issue. The surety thereupon perfected an appeal to this court.

The evidence upon the part of the surety tended to establish the following facts. The execution of the bond was admitted. After the default was made, the surety began a search for the prisoner and, in the spring of 1913, located her in the jail at Decatur, Illinois. The surety thereupon attempted to get the Decatur officials to allow her to be brought back to St. Louis, but they refused. Upon the expiration of her jail sentence, the surety, at his own expense, sent a police officer from St. Louis to Decatur for the purpose of returning the prisoner. The police officer made the trip, but the authorities at Decatur turned the prisoner over to the officers of Springfield, Illinois, where she was wanted on a minor charge. Later, through the efforts of the surety, and at his expense, she was brought from Springfield to St. Louis and there, on May 6, 1913, produced in court by the surety and the costs were then paid by said surety. The surety further-testified that at the time he signed the bond he did not' know the prisoner. That after signing the bond he received twelve dollars from a man purporting to be the husband of the prisoner, and the promise that he would be paid thirteen dollars more. After the default first occurred, in the St. Louis Court of Criminal Correction, the cause was continued a number of times, at the request of surety’s attorney, in order to give the surety an opportunity to produce the prisoner.

The evidence upon the part of the State tended to establish the following facts. That the prisoner, Ethel Green, a colored woman, was charged with the crime of’grand larceny, more particularly, in stealing the sum of $574.30 from one Parsons, a man then in St. Louis, but whose home was in Tennessee. When the case was first set for trial, the prosecuting witness was present in court to testify, but the case had to be continued because the prisoner did not appear. The prosecuting witness being a nonresident, the police found employment for him in St. Louis, so that he might remain and be present at the trial. On two later occasions when the case was set for hearing the prosecuting witness appeared, but the trial could not be had because of the prisoner’s absence. Thereafter the prosecuting witness went to his home in Tennessee. It further appears from the evidence of the State “that on May 6, 1913, the aforesaid surety caused the said Ethel Green, alias Ethel Brown, to be apprehended and delivered to the sheriff of the city of St. Louis,” but that after the delivery of said prisoner the State was unable to find the prosecuting witness, and for that reason the case against the prisoner was dismissed and the prisoner discharged. It further appears from the State’s evidence that at the time the surety delivered his principal to the sheriff on May 6, 1913, he also paid the costs.

By the State’s own evidence, it is shown that before final judgment was entered upon the forfeited recognizance, the surety surrendered his principal into open court or to the sheriff and paid the costs in said cause. Under such circumstances the case clearly falls within the scope of section 5131, Revised Statutes 1909. Said section is as follows:

“The bail at any time before final judgment against him upon a forfeited recognizance, may surrender his principal in open court or to the sheriff; and upon the payment of all costs occasioned by the forfeiture, and all cost that may accrue at the term to which the prisoner was recognized to appear, may thereupon be discharged from any further liability upon the recognizance. ’ ’

It appears that by the provision of said section, the surety was, upon the above showing, entitled, as a matter of right, to “be discharged from any further liability upon the recognizance. ’ ’ This is the view taken of said section by this court in the case of State v. Taylor, 136 Mo. 462.

It therefore follows that the court erred in rendering final judgment against appellant and that the judgment must be reversed. It is so ordered.

Roy, G., concurs.

PER CURIAM

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

All the judges concur.


author: BROWN, J.

text:
    THE STATE v. OSCAR HARRISON, Appellant.
    Division Two,
    February 23, 1915.
    1. RAPE: Sufficiency of Evidence: Impeachment of Prosecutrix. The admission of prosecutrix that previously to the alleged ■ravishment she had lived in a state of adultery with another man tends to weaken her testimony, and justifies the court in scanning it with much care; but where there is strong evidence to corroborate her testimony that she was ravished by defendant and his associates, it will not be held that the evidence was insufficient to support a conviction of rape.

      2. -: Penetration. Testimony by prosecutrix that while defendant held her shoulders on a strong table three men had intercourse with her, and that while defendant still held her a fourth had “intercourse” in her rectum, she resisting all the time to the full extent of her ability, makes out a prima-facie case of penetration, in which defendant participated.
    3. JURORS: Prejudice: No Assignment in Motion for New Trial. If' the motion for a new trial does not designate the name of any juror who was ineligible, the alleged error of the trial court in failing to sustain defendant’s motion to quash the panel of jurors for that members of the jury acknowledged their prejudice against him, cannot be considered on appeal.
    4. CONSPIRACY: Statements Prior to Crime. A conspiracy may be shown by acts and circumstances indicating a joint purpose between defendant and another party to aid each other in the commission of a crime. Testimony by prosecutrix that one L. accosted her on the street, inquired if she were a nurse, and being assured that she was stated to her that a certain doctor wanted to see her at once at his office about nursing a patient, and that she went with him to what she supposed was the doctor’s office, and that immediately upon her entering into the gambling room into which L. conducted her, defendant and L. made a joint attack upon her and assisted each other in ravishing her, is competent, since it details a series of facts indicating that there was a previously formed conspiracy between defendant and said L. to commit the assault before she was accosted by L. on the street.
    5. RAPE: Evidence of Sodomy: Res Gestae. Where defendant, charged with rape only, held the prosecutrix on a table by the shoulders while three of his associates had sexual intercourse with her, her testimony that immediately thereafter a fourth had “intercourse” with her through the rectum,, is competent. The rule is that if a defendant at the very time and place where he committed an offense for which he is being tried also commits another crime, all the criminal acts committed or participated in by him at that particular time and place may be shown in evidence as a part of the res gestae.

    6. ARGUMENT TO JURY: Horrible Ordeal. Characterizing the experience through which prosecutrix passed as ^several men ravished her as “that horrible ordeal” is not improper argument.
    7. -: Corrected by Court, A prompt direction by the court to the jury to disregard the word “pimp” wrongfully placed by the prosecuting attorney in the mouth of a witness as a characterization oí defendant, cured the harm done.

      8. -: Character of Place. A statement by the prosecuting attorney that defendant" was seen in a certain ball and “you know who owns it,” there being no evidence of its ownership, is outside the record; but in the absence of any evidence that the hall was a place of bad repute, it cannot be held that the remark was reversible error.
    9. -: Reputation of Room: Screams of Women. Remarks by the prosecuting attorney to the effect that a certain witness had heard screams of women before in the room into which prosecutrix had been inveigled and there ravished, the purpose being to create the impression that it was a common occurrence for women to be mistreated in defendant’s room, if not exactly warranted by the evidence, are cured by the prompt direction of the court to the attorney to stay within the record.
    10. -: Reputation: Unanswered Question. Where defendant’s character witness testified that defendant’s reputation was good, and was then asked on cross-examination if he had heard about defendant’s assaulting a certain other woman, to which inquiry there was no reply, it is not competent for the prosecuting attorney to state to the jury that said witness had not heard what the other woman had said; but where the court, as soon as the remark was made, said, “You cannot comment on a question that was not answered,” and on motion struck out the remark, there was no reversible error.
    11. -: Evil Face. It is prejudicial for the prosecuting attorney to point out the defendant’s witness as “this man with his evil face.” But a prompt direction by the court to withdraw it, accompanied by a stinging rebuke, was sufficient to impress upon the jury the fact that they could not base a verdict upon the physical appearance of defendant’s co-conspirator.
    12. -: Insufficient Reprimand. Where improper remarks are made by the prosecuting attorney, and upon proper objection the court does not administer a sufficient rebuke, the defendant should at the time request the court to administer a more pointed one, or should take such other steps as may be appropriate to punish the transgression; and unless he does 'that, he is not entitled to a new trial, where the' court does everything requested.
    Appeal from Jackson Criminal Court. — Hon. Ralph 8. Latshaw, Judge.
    Affirmed.

      Loyd Marts for appellant.

      (1) There was a variance between the information, and in the proof, in this, that the information charges rape and there was an absolute failure in the proof of same. State v. Dalton, 106 Mo. 468; State v. Wellman, 253 Mo. 312. (2) The court erred in refusing to sustain appellant’s motion to quash the panel of jurymen drawn, because members of said panel acknowledged their prejudice and opinion as formed from the reading of newspaper accounts of this alleged transaction. (3) Error was committed by the prosecuting attorneys in their argument to the jury, which was highly improper and prejudicial to the rights of the defendant and by reason thereof the defendants did not have a fair and impartial- trial. State v. Spivey, 191 Mo. 112; State v. Wellman, 253 Mo. 319; State v. Hess, 246 Mo. 160; State v. Baker, 246 Mo. 276; State v. Ulrich, 110 Mo. 350.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
    (1) An accessory before the fact may be charged and tried as a principal. Sec 4898, R. S. 1909; State v. Gow, 235 Mo. 323; State v. Rucker, 93 Mo. 88; State v. Schuchman, 133 Mo. Ill; State v. Edgen, 181 Mo. 582; Bishop’s New Crim. Prac. (2 Ed.), sec. 332; 22 Cyc. 361. (2) Everything done or said by the parties to a conspiracy relating to its purposes during its existence is admissible in 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. (3) Where the prosecuting attorney indulges in improper argument and on objection of defendant the court requests the jury to disregard the remarks and withdraws such remarks from tho 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 acquiesces in the action of the court. State v. "Wana, 245 Mo. 563; State v. Raftery, 252 Mo. 83. (4) 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. Barrington, 198 Mo. 91. (5) Aiders and abetters in the perpetration of a rape are guilty as principals. State v. Dowell, 8 L. R. A. 297, and cases cited in -notes; State v. Sykes, 191 Mo. 79; State v. Valle, 164 Mo. 551; State v. Orrick, 106 Mo. 119; State v. Duffy, 124 Mo. 9; State v. Gow, 235 Mo. 323. (6) 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. (7) 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. Rig-by, 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. (8) Testimony relating to anything that occurred in the room where prosecutrix was outraged and in the presence of appellant was com- - petent evidence. State v. Corrigan, 262 Mo. 195. (9) In a rape case, proof of penetration need not be in any particular form of words and may be shown by direct or circumstantial evidence. If penetration is the only inference comportable with the evidence, it is sufficient. 33 Cyc. 1486,1487; Regina v. Bedere, 21 Ont. 191; Taylor v. State, 111 Ind. 279; State v. Enright, 90 Iowa, 522; People v. Bernor, 115 Mich. 692; People v. Sconten, 130 Mich. 620; State v. Hodges, 61'N. C. 231; State V. Sykes, 191 Mo. 69; State v. Miller, 191 Mo. 594.
   BROWN, J.

Vic Gueringer, Thomas Kinevan, Leo Brennan and defendant were jointly charged with the crime of rape upon one Gertrude Shidler, in Kansas City, Missouri, on March 9,1914. A severance was granted and defendant was separately tried and convicted in the criminal court of Jackson county. He appeals from a judgment fixing his punishment at twenty-four years’ imprisonment in the penitentiary.

The defendant in his prief relies for reversal upon the following alleged errors: (1) Insufficient evidence to sustain the conviction; (2) refusal of the trial court to quash the panel of petit jurors impaneled to try defendant; (3) rejection of proper evidence offered by defendant; (4) admission of improper evidence on tbe part of the State; and (5) improper remarks of the prosecuting attorney. These assignments will be considered in connection with the conclusions we have reached.

The evidence in substance is as follows:

The crime was committed (if committed) in a room of the second floor of a two-story building at 1224 Grand avenue in Kansas City. Said room was supplied with a strong table, a lounge and several chairs. Some of the witnesses speak of this room as a “club room.” One witness for defendant says he went there to gamble. Playing cards and poker chips were scattered around the room, and, under a fair inference, it may be classified as a gambling room.

Adjoining or adjacent to this gambling room were one or two bedrooms and a room which had the appearance of a kitchen. Defendant admitted to a policeman that he lived at this place, but there is some evidence that a man named Morgan was the proprietor thereof. The entrance to the second story of this building is an ordinary stairway. At the landing of the stairway is a door which opens into a hallway about seventy feet long. This hallway is lighted by a window in the rear end thereof, and from the front door, which is partly glass. The gambling room is lighted by a skylight and can he entered by a door in the hallway or through the door of another room.

The testimony of prosecutrix runs as follows: She is twenty-eight years old; by occupation a nurse, and for several months prior to March 9, 1914, she had been following that line of work. She had frequently appeared upon the streets of Kansas City dressed as a nurse. In that garb she had, some months prior to the day of the alleged assault, attended a picture show operated by one Gueringer, who is a coindictee of defendant in this cause, though it does not appear that any of the defendants had any personal acquaintance with prosecutrix before the day of the assault. She further testified that about 5:15 p. m. on March 9, 1914, she visited the office of one Doctor Tucker to procure treatment for a threatened attack of pneumonia. On leaving Dr. Tucker’s office she was accosted upon the street by one Maurice Lewkowitz, who asked her if she was a nurse. She replied that she was, whereupon Lewkowitz told her that Doctor Schwartz at 1224 Grand avenue wanted to see her at once about nursing one of his patients. At Lewkowitz’s suggestion she went with him to 1224 Grand avenue. When they had reached the second floor of • that building Lewowitz told her to go into a room in said building which was uncarpeted and almost barren of furniture. She remarked to Lewkowitz that it did not appear to he a doctor’s office, whereupon he requested her to step into the next room. When they entered that room Lewkowitz told her that he was Doctor Schwartz and solicited her to have sexual intercourse with him. She refused his request, and tried to leave the room, but found the door through which she had entered closed and locked. She states that Lewkowitz then went into another room, or out into the hallway, and almost immediately returned with defendant, Yic Gueringer and two or three other men. When these men entered she screamed for help and Gueringer told her that he was an officer; thereupon she ran to Gueringer for protection and he caught hold of her and pulled her down across a table. One of the men brought in a rope and spoke about tieing prosecutrix, but another man present said that there were enough of them to hold her without using a rope. After pulling her down across the table defendant Harrison held her shoulders while three of his associates had “intercourse” with her, and Gueringer then had “intercourse” with her throug-h the rectum, causing her great pain. After thus committing sodomy upon her said Gueringer came around the table, and, threatening to kill her with a pistol if she further resisted, placed his sexual organ in her mouth. At this point prosecutrix lost consciousness and does not know what transpired until someone threw water on her face. Upon regaining consciousness she did not see anyone, but heard some men cursing. She discovered that the door leading to the hallway had been left unlocked and she ran out into the hallway where she saw some men towards the front door. She then ran back to the window at the rear of the hallway and jumped out onto the roof of another building. While on said roof defendant came out there and took hold of her sleeve and tried to pull her back into the building where she had been mistreated. She jerked loose from him and remained on the roof until rescued by a policeman. One of her sleeves was torn.

Prosecutrix further testified that while she was being mistreated in the gambling room she cried, screamed and did everything in her power to escape from defendant and his associates. All the evidence is to the effect that after going ont on the roof she screamed very loudly and appeared to be greatly excited and frightened. A woman who was working in a store beneath the gambling room testified that she heard a woman scream twice overhead, and a few seconds later saw prosecutrix out on the roof calling for help.

A crowd soon gathered in the alley near the building upon which prosecutrix was standing.

One Fred McNulty, who was in the alley, testified that he saw defendant come out on the roof and take hold of prosecutrix, and heard him say to her, “Come in here, you silly s— o— b — that she jerked away from defendant and continued to scream for help. Mc-Nulty testified that this occurred about the hour of six p. m., and that it was real light and he recognized the defendant, having seen him before in the “Green Duck” pool hall.

Charles Kearns, who was in a building across the alley from where prosecutrix appeared on the roof, testified that he saw defendant come out on the roof and take hold of prosecutrix; that he hallooed at defendant to turn her loose, and he did so and went back into the building where the alleged crime was committed. Kearns also testified that prosecutrix was greatly excited; that she threw her hat, coat and pocketbook down into the alley and seemed to be preparing to jump from the roof, when someone warned her not to jump.

About 6:15 p. m. two policemen arrived and one of them toQk prosecutrix from the roof. She immediately made complaint to the policeman that she had been ravished, but he failed to find defendant or any of his associates in the building where the alleged crime was committed. After being rescued from the roof prosecutrix was immediately taken to a police station and from there to a hospital, where two physicians made a physical examination of her. Said physicians testified that when brought to the hospital her rectum was bleeding from two lacerations, each about an inch in length.

Prosecutrix identified defendant most positively as the man who held her shoulders on the table while Gueringer and others were mistreating her.

The policeman who examined the gambling room a short time after the alleged assault stated that he found a stove and two chairs overturned; that the cloth on the table was wet and “wrinkled up.” He further noticed that water had been spilled on the floor of said room where the aforesaid table stood.

Three witnesses who saw prosecutrix on the roof testified that they did not see defendant touch her. It does not clearly appear that prosecutrix was in view of these witnesses all the time she was on the roof.

A woman who picked up the pocketbook which prosecutrix threw into the alley testified that it contained only sixty-five cents.

Defendant was arrested near 12th’ street and Grand avenue about nine p. m. on the day of the alleged assault. When first taken into custody he stated to the officer that he had been attending a picture show at 12th and Troost and did not live at 1224 Grand avenue. After being reminded by the arresting officer that the latter had seen him at 1224 Grand avenue defendant admitted that he lived there.

On cross-examination prosecutrix testified that she had resided in Kansas City about two years. Prior to that date she lived in Terre Haute, Indiana, where she was twice married to one Clyde Shidler, and twice divorced from him. Three children were born of these marriages, which children at the time of the trial of this case were living with their father in Indiana. When she first came to Kansas City prosecutrix brought two of her children with her. She admitted that she lived in a state of adultery for several months with, a young man by tbe name of Raymond Ausherman, with whom she became acquainted while nursing his grandmother in Indiana. She further testified that while living on a farm in Indiana she was ravished by her father-in-law, a minister of the gospel. That said assault caused her to miscarry, but she did not prefer any criminal charge against her father-in-law. That at the instance of her father she collected $400 from her father-in-law in settlement of her injuries.

Raymond Ausherman, with whom prosecutrix lived in adultery, was serving a jail sentence for vagrancy at the- time of the trial. He testified that prosecutrix left him because she became enamored of one Charles Farina. Farina testified that he had had no improper relations with prosecutrix. Defendant introduced several other witnesses who testified to other specific acts of immorality on the part of prosecutrix after she came to Kansas City. While admitting her illicit relations with Ausherman she denied all other immoral conduct charged against her. The evidence of additional immoral acts on the part of prosecutrix was direct, but we are not able to say that it was very convincing. There was some evidence that for several months immediately prior to the alleged assault upon prosecutrix she had been working as a nurse and living a moral life.

Maurice Lewkowitz was sworn on behalf of defendant and testified that prosecutrix flirted with him on the street and solicited sexual intercourse; that, after borrowing two dollars from a friend who stood nearby, he took her to the gambling room at 1224 Grand avenue, and there had sexual intercourse with her upon a lounge. That he placed two dollars on a table by her side and then left the building for fear he might be arrested. This witness admitted that he left the State soon after March 9, 1914, and was arrested in Omaha, Nebraska. He stated that he fled the State because the newspapers had inflamed the minds of the people against him, and several persons had told him, that he would be lynched if caught. He returned to Missouri without requisition.

One J. King Forrest, a sign painter who was working in his paintshop in a room adjoining the one where prosecutrix claims to have been assaulted, testified that there was a small opening in the sliding doors between his room and the gambling room. That he did not hear prosecutrix scream, and did not know that there was any trouble until a policeman knocked at the front hall or door and asked how to get out on the roof in the rear of the building. The door at the front of the hall was locked and Forrest admitted the policeman. On the morning after the alleged assault witness Forrest told apoliceman that the place seemed to be going from “bad to worse.” Asked why he did not go into the gambling room and protect prosecutrix against her assailants when she screamed, he replied:

“Would you go back there with that gang of men back there.” In his testimony at the trial Forrest denied-making this statement to the policeman.

Defendant testifying in his own behalf stated that he went to 1224 Grand avenue alone about 5:30 p. m. on March 9, 1914; that he saw prosecutrix sitting in one of the bedrooms, but did not molest her at anytime, and that she never screamed until she went out on the roof. He admitted that he went out on the roof and spoke to her, but denied that he. took hold of her arm.

John A. Cunningham testified that he employed defendant in his plumbing establishment during the three years next prior to November, 1913; and that defendant made him a good hand. However, witness did not know what defendant’s reputation was outside of his place of business. Said witness did not know that defendant lived in a gambling room and had not heard of any misconduct on his part.

One witness from Indiana testified that she knew prosecutrix when she lived at Terre Plante, and that her reputation for veracity and morality was bad. Two witnesses from Kansas City also testified that the reputation of prosecutrix in that city was bad.

In rebuttal three witnesses who resided in Terre Haute, Indiana, one of them a physician who had loaned a small sum of money to prosecutrix when she first came to Missouri, testified that they knew prosecutrix quite well at' Terre Haute, and that her reputation in that city for veracity and chastity was good. Other items of evidence are not of sufficient importance to warrant special mention here.

I. Defendant’s insistence that the evidence is insufficient to support the conviction called for the foregoing extended synopsis of the testimony.

The admission of the prosecutrix that she had lived in a state of adultery tends to weaken her evidence, and justifies us in scanning her testimony with much care. The further' fact that prosecutrix admits that she went to the second story of a rather poorly lighted building with a stranger, and into a room which she says did not have the appearance of- a doctor’s office, tends to corroborate defendant’s witness Lewkowitz, who testified that she went there for immoral purposes. A further cloud is cast upon the evidence of prosecutrix by a State’s witness who was working on the first floor of the building beneath the gambling room. This witness testified that she heard only two screams before prosecutrix ran out onto the roof. This evidence conflicts with the statement of prosecutrix that she screamed all the time she was being mis,treated. •

If there was no corroboration of the alleged ravishment of prosecutrix except her testimony and her screams after she went out onto the roof, we would feel inclined to reverse the judgment and remand the cause upon the g’round that the evidence of defendant’s guilt was not satisfactorily established. [State v. Tevis, 234 Mo. l. c. 284; State v. Donnington, 246 Mo. l. c. 355-6; State v. Brown, 209 Mo. 413.] Her screams while on the roof might have been feigned.

However, there is strong evidence to corroborate the testimony of prosecutrix that she was ravished and mistreated by defendant and his associates. Two physicians who examined her very soon after the alleged assault found her rectum bleeding from -recent lacerations. The extreme improbability that these lacerations were self-inflicted, or that they were caused in any other manner than as testified to by prosecutrix, is strong corroboration of her version of the alleged crime. The further fact that immediately after the assault two chairs and a stove were found overturned in the gambling room indicates a struggle. • The torn condition of her sleeve, the water on the table and on the floor at the place where she claims water was thrown upon her after she had lost consciousness, lends further corroboration to her narration of. the crime.

The act of defendant in coming .out on the roof and trying to get her to go back into the gambling room points to his participation in the assault. Also the further fact that prosecutrix had only sixty-five cents immediately following the assault discredits the evidence of witness Lewkowitz that she went to the gambling room for immoral purposes and received two dollars from him.

II. Another insistence of defendant is that the judgment should be reversed on the ground that there is no evidence of penetration, citing State v. Dalton, 106 Mo. 463, and State v. Wellman, 253 Mo. l. c. 312. The Dalton case was reversed because the prosecutrix did not testify that the defendant in that case touched her sexual organ with his sexual organ — the plain inference from her evidence being that he did not. The "Wellman case gives the legal definition of the words ‘ ‘ sexual intercourse. ’ ’ It is not a rape case; so that neither of those cases sustain defendant’s contention.

In this case prosecutrix testified that while defendant Harrison held her shoulders on the table three men had “intercourse” with her, and that while défendant still held her Gneringer had “intercourse” in her rectum, she resisting all the time to the full extent of her power.

We find that this evidence makes out a prima-facie case of penetration in which defendant participated. The word “intercourse” has many definitions according to the variant circumstances in which it is used. One of those definitions is “sexual connection— coition.” [Webster’s New International Dictionary.] The facts detailed by prosecutrix in connection with her use of the word “intercourse” in her evidence in this cause gives it the same meaning as coition or sexual intercourse brought about by force and against her will. The usual disinclination of witnesses when summoned into court to use language of a vulgar import in describing the revolting acts constituting the crime of rape render it difficult in some cases to secure evidence which in categorical language describes the act of penetration. It is not necessary that the evidence of witnesses should be as specific as the language used in an indictment. The act of penetration may be inferred by the jury when the evidence is clear enough to admit of no other conclusion. So that, viewing the evidence in this cause from every angle which defendant’s counsel has seen fit to challenge it, we find that a substantial prima-facie case was made for the triers of the fact. Therefore, defendant’s first assignment must be overruled.

III. The assignment “that the trial court erred in failing to sustain defendant’s motion to quash the panel of jurors drawn, because members of the jury acknowledged their prejudice against defendant, ’ ’ cannot be considered here, because not properly lodged in the motion for new trial. The motion for new trial does not designate the name of any juror who was ineligible to serve; therefore, this point is not well taken. [State v. Tomasitz, 144 Mo. l. c. 91, cited with approval in State v. Shelton, 223 Mo. l. c. 131.]

IV. It is urged that proper and competent evidence offered by defendant was rejected by the court. "We fail to find anything in the rec- . ord to sustain this assignment, and it must be disregarded.

V. It is contended that the trial court committed reversible error in admitting certain statements alleged to have been made by witness Lewkowitz to prosecutrix regarding the alleged desire of Doctor Schwartz to secure her services as a nurse, the defendant not being present when those statements were made.

The rule of law in this State is that a conspiracy may be shown by acts and circumstances indicating a joint purpose between defendant and another party to aid each other in the commission of a crime. The fact that the defendant and witness Lewkowitz made a joint attack upon prosecutrix immediately upon her entry into the gambling room — an attack which probably would not have been successful if attempted by defendant alone — is a very strong circumstance indicating that there was a conspiracy between defendant and Lewkowitz to commit the assault before Lewkowitz accosted prosecutrix on the street; consequently, whatever Lewkowitz said to prosecutrix to induce her to go to the gambling room was admissible against defendant, though he was not present when such statements were made. [State v. Fields, 234 Mo. 615, l. c. 623; State v. Roberts, 201 Mo. 702, l. c. 728.]

VI. Defendant asserts that it was error to admit evidence that Gueringer committed sodomy upon prosecutrix while defendant was holding her, such evidence being in relation to a crime not designated m the information. It is quite true that our Constitution requires that a defendant shall be notified of the nature and character ' of the charge which he is required to meet. [Sec. 22, art. 2, Constitution of Missouri.] However, it is tlie law of this State that, if a defendant at the very time and place where he commits an offense for which he is being tried has also committed another crime, all of the criminal acts committed or participated in by him at that particular time and place may be shown as a part of the res gestae. In the case of State v. Rasco, 239 Mo. 535, it was ruled competent for the State to introduce proof of three other murders committed by defendant at the time he killed the man for whose murder he was then on trial.

It is usually permissible for a defendant to prove mitigating circumstances which tend to show the absence of malice or other wicked motive in the commission of the crime. It has even been held that a felony cannot be committed where it is clear that the party accused had no design to violate the law. [State v. White, 237 Mo. 208, l. c. 212.]

As a corollary .of this doctrine.it is proper to show all the acts done or words spoken by a defendant at the time of committing an offense, so that the jury may know the animus which inspired the act charged, and thereby be the better qualified to “make the punishment fit the crime.”

VII. This brings ns to the defendant’s last assignment, that the prosecuting attorney, Mr. Jacobs, and his assistant, Mr. Cur-tin, made the following alleged improper arguments to the jury.

“Mr. Curtin (assistant .prosecuting attorney): Did she make that story up; is that a lie; would that woman make that story up to manufacture that horrible ordeal?

“Mr. Martz (attorney for defendant): We object to that statement, ‘that horrible ordeal.’

“Which was by the court overruled and duly excepted to by defendant’s counsel, to which remark defendant’s counsel objected, which objection was overruled by the court and duly excepted to by defendant’s counsel.”

This was not improper argument. If prosecutrix was subjected to the mistreatment she described in her evidence, it was in fact a “horrible ordeal,” and the assistant prosecutor had a right to so characterize it in his argument.

“Mr. Curtin (continuing): Kearns was over in the window looking out. He saw this man go over and grab hold of her sleeve. Kearns said, ‘Leave that woman alone, you pimp.’

“Mr. Martz: We object.

“The Court: That expression was not used and it is withdrawn from the jury.

“Mr. Curtin: I thought it was.

“The Court: The prosecuting'.attorney is requested to keep within the record, and the jury is instructed to disregard the statement.

“To which remarks the attorney for defendant duly objected and excepted.”

The evidence of Kearns was that defendant came out on the roof, seized prosecutrix by the sleeve and tried to pull her back into the gambling room,' where she says he had been raped. Kearns stated that he hallooed at defendant to let prosecutrix alone, but did not say that he called him a “pimp.” The last word of the remark was, therefore, outside of the record, but was harmless in view of the prompt action of the court in directing the jury to disregard it.

“Mr. Curtin (continuing): McNulty said that he had seen the defendant before; that he had seen him in the Green Duck Pool Hall before; that Green Duck Pool Hall, you know who owns it. He saw him in there and he knew him after he had seen him several times.

“Mr. Martz: I object to reference of the prosecuting attorney to the Green Duck Pool Hall and who owns it.

“The Court: There is no evidence as to who owns and the remarks are improper. Keep within the record, Mr. Curtin.

“To which remarks the defendant’s counsel duly objected and excepted.”

It was error for the prosecutor to refer to the ownership of the “Green Duck” pool hall, there being no evidence in the record as to the ownership of said place. However, in the absence of any showing that said hall was a place of bad repute, we cannot say that the remark was reversible error.

“Mr. Curtin (continuing): Screams of a woman will draw the attention of a man if he has a drop of blood in his veins. It will bring any man to the assistance of a woman, but King did not come. Had he heard it before? "Was it an ordinary occurrence with King?

“Mr. Martz: We object to that statement of the prosecuting attorney.

“The Court: Sustained. There was no evidence of other screams there and the prosecuting attorney is instructed to stay within the record.

“To which remarks the defendant’s attorney at the time duly objected and saved his exceptions.”

The last quoted remark was an effort to create the impression that it was a common occurrence for women to be mistreated in defendant’s rooms. It was not exactly warranted by any evidence in the case, but in view of the court’s prompt action in telling the jury that there was no such evidence, and in admonishing Mr. Curtin to keep within the record, we think this remark became harmless.

“Mr. Curtin (continuing): Oh, one man said his reputation was good. He had not heard them say what Rose Herson said.

“The Court: You cannot comment on a question that was not answered.

“Mr. Martz: We ask that it be stricken from the record.

‘ ‘ The Court: Stricken out.

“At which time the defendant’s attorney duly excepted. ’ ’

The assistant prosecuting attorney was certainly heading straight toward reversible error in making the remark last quoted. Rose Herson did not testify and there was no evidence before the jury that she knew anything derogatory to the reputation of defendant. The only time that Rose Herson’s name was mentioned in the entire record was when the prosecuting attorney asked defendant’s character witness Cunningham if he had heard about defendant assaulting her, which question did not elicit any information as to that alleged assault. However, considering the prompt action of the trial court in striking this unwarranted remark from the record upon defendant’s request, and stopping further argument of that character, we think the remark was not sufficiently prejudicial under the- facts of this case to constitute reversible error.

“Mr. Jacobs (prosecuting attorney): I say to you fathers, and you husbands here, conceive if you can the condition of that woman’s mind when she saw them walking in, filing in the room, Gueringer, this man (indicating) with hi's evil face.

“Mr. Martz: We object to that remark.

“The Court: You must withdraw that remark. That remark is improper; you have no right to refer to this man’s face as being evil. The Supreme Court in Oscar Ulrich case, when Henry Withers was the prosecuting attorney, referring to the defendant as a surgar-loaf-headed Dutchman, or words to that effect, held it was error. This man’s face is just as good as yours or mine.

“To which defendant’s attorney saved an exception and duly excepted.”

The last-quoted remark was, of course, prejudicial to defendant.. It would be intolerable to have convictions based upon the mere fact that one of defendant’s associates was possessed of an “evil face.” . However, the prompt and stinging rebuke which the court administered to Mr. Jacobs was sufficient to impress upon the jury the fact that they could not predicate a verdict upon the physical appearance of defendant’s coindictee.

A few additional remarks were objected to by defendant but we find them not of sufficient moment to warrant mention in this opinion.

It will readily be observed that the trial court was entirely fair to defendant during the argument and protected him of his own volition when the prosecuting attorney attempted to go beyond the bound of legitimate argument. It also appears from a perusal of nearly a thousand pages of record that said court maintained the same spirit of impartiality throughout the trial.

It has been the rule of this court for more than ten years that where improper remarks are made by a prosecutor, and upon proper objection the court does not administer a sufficient rebuke, the defendant should at the time request the court to administer a more pointed reprimand, or take such other step's as may be appropriate to punish the transgression. [State v. McMullin, 170 Mo. 608; State v. Phillips, 233 Mo. 299; State v. Wana, 245 Mo. l. c. 562-3; State v. Raftery, 252 Mo. l. c. 83.]

It will be seen that the trial court did everything which the defendant, in his efforts to confine the prosecutors within the bounds of legitimate argument, requested ; and defendant having failed at the time the improper remarks were made to ask for a more pointed reprimand, or to except to the action of the trial court in omitting to take more vigorous action to prevent improper argument, was, under the facts of this case, not entitled to a new trial. Oases sometimes arise where courts directly sanction improper arguments and refuse to consider objections to such arguments when made in a timely manner. In such cases the rule jiist announced would not be applicable.

The defendant received a rather long sentence, but if guilty it is not too severe. Under the evidence of this case his guilt was a proper issue for the jury. The prosecuting attorney and his able assistant made very ingenious and eloquent appeals to the jury, and may thereby have added several years to defendant’s sentence. However, except as hereinbefore noted, the arguments of the prosecutors were entirely legitimate. The record containing no reversible error, the judgment will be affirmed. It is so ordered.

F-aris, P. J.} and Walker, J., concur.