author: WILLIAMS, C. PER CURIAM:

text:
    THE STATE v. ARTHUR VOLZ, Appellant.
    Division Two,
    December 6, 1916.
    1. CARNAL KNOWLEDGE: Sufficiency of Evidence: Age of Defendant. Testimony by prosecutrix in a carnal knowledge case that defendant told her he was twenty-one years of age is sufficient proof to sustain a verdict that he was over seventeen years old.
    2. -: -: Proof of Forcible Ravishment. The sexual act denounced by section 4472, Revised Statutes 1909, as amended by Laws 1913, page 218, constitutes a crime when committed under the conditions detailed in the statute, whether accomplished with or without force, or with or without the .consent of the female.
    3. -: Instruction: Fixing Defendant’s Age at Sixteen Instead of Seventeen Years. Although the Act of 1913, Laws 1913, page 218, raised the minimum age of the male from sixteen years, as it was prescribed by Sec. 4472, R. S. 1909, to seventeen years, an instruction in the prosecution of a crime committed in 1914 which authorizes the jury to convict defendant if “he was then and there a male person over the age of sixteen years,” is erroneous, but it is not prejudicial error if the uncontradicted evidence fixed his age at twenty-one years and there was no actually contested issue concerning his age.
    4. -: -: Fixing Punishment at Less Than Statutory Maximum. It is the court’s duty to fix the amount of the punishment, and that being the case a defendant cannot complain that the instruction fixed his punishment at less than the statutory maximum; but even if the statute authorized the jury to fix the punishment, and the statute fixes the maximum punishment for the crime at five years’ imprisonment, defendant is not injured by an instruction which tells the jury that the maximum punishment they can impose is two years’ imprisonment.
    5. -: -: Guilty of Second Act. An instruction which requires the jury to find that the prosecutrix at the time of the commission of the sexual act was of “previous chaste character” and defines previous chaste character to mean that prosecutrix “had never had sexual intercourse with any male person,” does not authorize them to convict defendant of a second act, although there is clear evidence of such second act.
    6. -: -: Definition. Defining “carnal knowledge” in an instruction instead of the conventional expression “carnal knowledge” cannot mislead the jury.
    7. -:-: Proof of Unchastity. The court should not instruct the jury that prosecutrix’s unchastity can be established by circumstantial as well as direct evidence, where there is no evidence of a circumstantial character concerning prosecutrix’s conduct prior to the alleged offense sufficient to warrant an inference of unchastity.
    8. -: -: Consent: Immaterial. An instruction which tells the jury that it was “immaterial” whether prosecutrix in a case of carnal knowledge of an unmarried female of previous chaste character, between the ages of fifteen and eighteen years, did or did not consent to the act, and that consent, if any, “is no defense in this case,” is unfortunate in the use of the word “immaterial;” yet when the instruction is read as a whole, it leaves the meaning clear that the jury were merely informed that they were not to consider the matter of consent as a defense to the act.
    9. -: -: Presumption of Chastity. The court should not instruct the jury on behalf of defendant in a carnal knowledge case that there is no presumption that prosecutrix was of chaste character prior to the date of the alleged offense.
    10. -: Improper Remarks of Counsel. A reference by counsel to the State that the defendant in a prosecution for carnal knowledge of a previously chaste female aged sixteen years in which character of cases juries are easily prejudiced, to the fact that defendant had not testified, if withdrawn and apologized for by counsel and he is pointedly rebuked by the court and the jury directed to disregard the remarks, if such remarks stood alone, might not justify a reversal; but when they are coupled up with other remarks to the effect that defendant had refused to marry prosecutrix; of which there is no evidence, and an appeal to the jurors to protect their own daughters, all of which went unrebuked, in spite of a request for a rebuke, the remarks as a whole were prejudicial.
    Appeal from St. Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge.
    Reversed and remanded.

      Bass S Bass for appellant.
    (1) The requested instruction of defendant in the nature of a demurrer prayed for by defendant at the close of the State’s case, should have been given. Sec. 4472, R. S. 1909, as amended by Laws 1913, p. 218. (2) The instruction given by the court of its own motion is erroneous, in that it is confusing and improperly states the law and punishment thereunder. State v. Schenck, 238 Mo. 429; Sec. 4472, R. S. 1909, as amended by Laws 1913, p. 218. (3) The instruction on circumstantial evidence prayed for by tbe defendant should have been given. State v. Kozlickie, 241 Mo. 301. (4) The court erred in overruling defendant’s objection to special counsel for the State injecting testimony into the case during his closing address to the jury. (5) It was prejudicial error for the court to refuse to rebuke special counsel for State, when he went out of the record in his address to the jury. . (6) It is prejudicial error and a violation of the statute on the part of special counsel for State, to refer to the failure of the defendant to take the stand and testify. See. 5243, R. S. 1909’. The following cases are cited to support foregoing points in relation to the prejudicial errors in the address to the jury by the special counsel: State v.. Horton, 247 Mo. 657; State v. Ferguson, 152 Mo. 92; State v. Wigger, 196 Mo. 90; State v. Leaver, 171 Mo. App. 371; State v. Upton, 130 Mo. App. 316; .State v. Dietz, 235 Mo. 332; State v. Martin, 229 Mo. 620; State v. Webb, 254 Mo. 4.14; State v. Jackson, 95 Mo. 623; State v. James, 216 Mo. 394; State v. Newcomb, 220'Mo. 54.

      ■John T. Barker, Attorney-General, and 8. P. Howell, Assistant Attorney-General, for the State.
    (1) The assessment of the punishment by the jury does not render the verdict defective for the reason that it was adopted by the court and therefore became its act. State v. Hainey, 168 Mo. 197; State v. Shear-on, 183 S. W. 291; State v. Sutton, 232 Mo. 249; State v. Reed, 237 Mo. 227. (2) The instructions are in an approved form and fully advised the jury upon all questions of law necessary for their guidance. State v. Perrigan, 258 Mo. 233; State v. Salts, 263 Mo. 304; State v. Day, 188 Mo. 359. (3) The remarks made by special counsel for the State do not constitute reversible error under the facts of this case. Sec. 5242, R. S. 1909; State v. Degonia, 69 Mo. 485; State v. Fitzgerald, 130 Mo. 436; State v. Taylor, 134 Mo. 157; State v. Kelleher, 201 Mo. 627; State v. Larkin, 250 Mo. 218.
   WILLIAMS, C.

Upon an information charging him with having carnal knowledge of an unmarried female of previous chaste character, between the ages of fifteen and eighteen years, defendant was tried in the circuit court of the city of St. Louis, found guilty, and his punishment assessed at a fine of five hundred dollars and six months’ imprisonment in the city jail. Defendant duly appealed. The prosecutrix on May 1, 1914, the date of the alleged offense, was sixteen years, one month and four days old, and resided, with her parents, in the city of St. Louis. About seven p. m. of that day, the defendant, a young man about twenty-one years • old, living with his parents just across the street, asked the prosecutrix to take a walk with him. She had known the defendant about ten years and accepted the invitation. The two proceeded about six blocks from the prosecutrix’s home out into O’Fallon Park and when they reached a dark, grassy place in the park, prosecutrix said that defendant asked to have intercourse with her and that “I refused, but I was forced to.” That the defendant threw her down and had intercourse with her and said that “if anything happened to me, he would get,me out of it.” She testified that this was the first time that she had ever engaged in an act of sexual intercourse. The following February a girl baby was born. On cross-examination, prosecutrix admitted that a short time after this occurred she again had intercourse with the defendant, defendant telling her that if anything happened from the first act he would not get her out of it unless she again submitted to his lust. The mother of prosecutrix testified as to the age of prosecutrix and that her daughter had always been a good girl; had never worked out anywhere, but had assisted about the home, doing household duties. • The mother noticed that the daughter was “getting large” and interrogated the daughter. Shortly after that the mother met the defendant on the street and told him about the situation and the defendant told her he would come over and see them, but that he would not do it while the witness’s husband was at home. Defendant failed to come to the prosecutrix’s home and the mother went to defendant’s home and talked to defendant’s mother about the matter. Shortly after this, defendant, accompanied by his brother, went to the home of prosecutrix and told prosecutrix’s mother that they should have' an abortion performed and that he would pay for it. He there admitted that he was the father of the unborn child. On cross-examination the mother of prosecutrix admitted that she employed an attorney to see if arrangements could not be made for defendant to marry her daughter, but denied that she had ever attempted to accept money in lieu of a prosecution. The mother of prosecutrix also wrote a letter to the father of defendant, informing him of the trouble. In response to this letter the defendant and a Mr. Frank came over to the house and stated that the father of the defendant would pay for the confinement, but the mother of prosecutrix refused to accept this, stating that “it was not treating my girl just or doing anything for her baby.”

Five witnesses testified that, prior to this occurrence, the reputation of prosecutrix for virtue and chastity in that community was good.

The defendant produced as a witness one Mr. Charles Hade, who testified that prior to May 1, 1914, he had had sexual intercourse with the prosecutrix fifteen or eighteen times, but he was not very definite in fixing the place and time of the different occurrences, and on cross-examination admitted that he was related by marriage to the defendant on trial. Two other young men were placed on the stand by the defendant to testify that they each had had sexual intercourse with the prosecutrix, but they were unable to fix the date prior to May 1, 1914. Three police officers testified that they had seen the prosecutrix out late at night on different occasions, and as late as one o’clock a. m. one morning in July, 1914, with a young boy named Uncer. On cross-examination circumstances were brought out to show the existence of a friendly relationship between defendant’s father and these policemen.

In rebuttal the prosecutrix testified that she was not out at one a. m., in July, 1914, with the Uncer boy, and her mother testified that the prosecutrix was never out late at night unless some elderly person or her brother or sister were with her. The State then called young Uncer who denied that he was out at one o’clock a. m., with the prosecutrix in July, 1914.

The defendant did not testify in his own behalf.

I. It is contended that the evidence was insufficient to support.the verdict: (1) because there was no legal proof that defendant was over seventeen years of age, and (2) because the evidence proved a case of forcible ravishment only and therefore not such a case as could come within the meaning of section 4472, Revised Statutes 1909, as amended in the Laws of 1913 at page 218.

Each of said points must be ruled against appellant. Prosecutrix testified that defendant told her he “was twenty-one years old. That was sufficient evidence to justify the jury in so finding. As to the second point it is sufficient to say that the sexual act denounced by the above section of the statute constitutes a crime when committed under the conditions detailed in the statute, whether accomplished with or without force, or with or without the consent of the female. [State v. Harney, 168 Mo. 167.]

II. The first paragraph of instruction number one is attacked. Said paragraph reads as follows:

“If in consideration of all the testimony in the ease, in the light of the court’s instructions, you find and believe from the evidence that at the city ^ gt. Louis and State of Missouri, on or about the first day of May A. D. 1914 or at any time within three years next before the filing of the information herein, the defendant Arthur Volz was then and there a male person over the age of sixteen years, and that he did then and there intentionally, unlawfully and feloniously have carnal knowledge of the body of one . . . and that at the time he had such carnal knowledge of the said . . . she was an unmarried female of previously chaste character between the ages of fifteen and eighteen years, you will find the defendant guilty as charged in the information and assess his punishment at imprisonment in the penitentiary for a term of two years, or by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the city jail not less than one month nor more than six months or by both such fine and imprisonment; and unless you so find the facts to be, you will find the defendant not guilty.”

Section 4472, supra, before being amended in 1913 (See Laws 1913, p. 218), did fix the minimum age of the male at sixteen years and the maximum punishment at two years in the penitentiary. By said amendment the minimum age of the male was changed to seventeen years and the maximum punishment was changed to five years imprisonment in the penitentiary. Said instruction was therefore erroneous in the matters above indicated, but we do not consider either of said errors to be prejudicial for the following reasons: Concerning the first point the uncontradicted evidence fixed defendant’s age at twenty-one. If there had been an actually contested issue concerning defendant’s age —some evidence fixing it below seventeen — then quite a different situation would be confronted and no doubt the error would be prejudicial. But under the present state of the record it clearly appears that defendant could not have been harmed by the error. Concerning the second point it is sufficient to say that it was the court’s duty under said statute to fix the amount of punishment. [State v. Harney, supra; State v. Reed, 237 Mo. 224.] But even though it had been the province of the jury to assess the punishment, it would be difficult to conceive how defendant could be injured by having the maximum punishment reduced from five to two years.

It is further contended that the evidence showed two acts of intercourse, the second act a short time after the act of May 1st, and that the instruction therefore permitted the jury to find him guilty of the second act, which according • to her own testimony occurred at a time when she was unchaste. "We are unable to agree with appellant’s contention. The jury were not permitted by said instruction to find defendant guilty if they found that he merely had sexual intercourse with the prosecutrix, but the instruction clearly requires the jury to find that at the time of the commission of the act the prosecutrix was of previous chaste character. Said instruction also requires the jury to consider all the testimony in the “light of the court’s instructions.”

By the third paragraph of said instruction the court defined the words, “of previously chaste character” to mean that prosecutrix “had never had sexual intercourse with any male person.” Whether or not this would be a proper definition of this phrase in a ease where the question of reformation was involved w.e need not stop to discuss, but we think it clearly appears that the jury could not have been misled by the instructions in this case to believe that they could find defendant guilty of the second recent act of sexual intercourse.

In support of his contention appellant cites ' State v. Schenk, 238 Mo. 429, l. c. 458. We are unable to find anything stated in the opinion in the Schenk case which conflicts with our holding in the case at bar. The instruction in the Schenk case is not copied into the opinion. The opinion states that by it “the jury were instructed in effect that they might convict if they found that the defendant committed either act.” The same can certainly not be said of the instruction in the' ease at bar, and for that reasom what was said in the Schenk case cannot be accepted as an authority in point in the present case.

The term “carnal knowing” instead of the conventional expression “carnal knowledge” is also defined' in the third paragraph of said instruction. This at most was hut a grammatical error and could not have misled the jury.

The court did not err in refusing to instruct the jury in effect that unehastity could he proven by circumstantial as well as direct evidence — this because there was no evidence of a circumstantial character concerning prosecutrix’s conduct prior to the alleged offense sufficient to warrant an inference of unchastity upon her part.

III. The second instruction told the jury that it was “immaterial” whether the prosecutrix did or did not consent to the act and that consent, if any, “is no. defense in this case.” Counsel for appellant object to the use of the word “immaterial” in the instruction and in support of that contention insists that consent of the prosecutrix would be a material circumstance tending to show lack of previous chaste character. The use of the word immaterial is, in a sense, unfortunate and should be omitted from the instruction; yet, we think, the instruction, when read as a whole, leaves the meaning clear that the jury were merely informed that they were not to consider the matter of consent as a defense to the act.

IV. The court refused to give defendant’s instruction to the effect that there is no presumption that prosecutrix was of chaste character prior to the date of the alleged offense. This is assigned as error.

In the ease of State v. Kelly, 245 Mo. 489, it was held to be error to instruct the jury, in a case of this character, that the law presumes that every woman is of chaste character until the contrary appears. This upon the theory, not that such a presumption did not in fact ordinarily exist, but upon the theory that the chastity of the prosecutrix was, under the statute, a fact to be both charged and proved and that such an instruction would therefore relieve the State of its duty to “bring forward in tbe first instance evidence of tbe previously chaste-character of the prosecutrix.”

The instruction offered in the case at bar was correct as a purely abstract principle of law so far as it has to do with the question of the burden of proof in the case, but yet we do not think the court erred in refusing to give the same, but on the other hand think it very properly refused to so instruct; this because, (1) the jury were clearly told by other instructions that the law presumed defendant’s innocence and that the burden was upon the State to prove defendant’s guilt beyond a reasonable doubt and the fact of previous chaste character was specifically mentioned as one of the facts to be found by the jury before finding a verdict of guilty; (2) the giving of such an instruction on a purely technical phase of the case would have a tendency to mislead the jury into believing that there would likely be a presumption that the prosecutrix was unchaste prior to the alleged offense.

V. The most serious assignment of error has to do with the remarks made by special counsel f¿r the State in his closing argument to the jury.

During the closing argument special counsel for the State made the following remarks:

“It was only for the purpose of procuring a marriage between the outraged and defiled little girl and this defendant, that is what I was retained for, and when they wouldn’t do that, I considered it my whole duty to the people of the State of Missouri and to my client to come here and prosecute this man as vigorously as the law would allow and permit me to do. I have children, I have two daughters, gentlemen of the jury, and you have daughters, among the many daughters throughout our land, and this law was passed to protect the public morals, as stated to you by the State’s attorney in his opening statement and we must protect our daughters and we must protect the females of our families.”

Defendant’s counsel objected to these remarks and asked the court to rebuke counsel for going outside the record. The court said, “Confine yourself to the evidence,” and again defendant’s counsel asked the court to rebuke counsel, but the court failed to rebuke counsel saying, “I have ruled on the matter and directed counsel to confine himself to the evidence.” Defendant saved an exception to the failure of the court to rebuke counsel.

A little later in the argument the following occurred: Special Counsel: “You saw the prosecuting witness on the stand. Will you believe her or will you believe Hade? Compare the two. Gentlemen of the jury, Volz [defendant] didn’t go on the witness stand. The defendant didn’t go on the witness stand. Think of it.” The court: “One moment.” Defendant’s Attorney: “He knows better than that. He knows it can’t be referred to and I will lay the foundation now for a new trial and except to it. That is absolutely out of order.” .Special Counsel: “I merely commented on it. I said he didn’t go on the stand.” The Court: “You ought to know and you do know, that there is a rule against referring to that fact.” Special Counsel: “I will withdraw the remark.” Defendant’s Counsel: “He withdraws it after the injury is done and he has got it before the jury!” The Court: “Do not refer to that fact again, directly or indirectly. You are not allowed to do it, and you ought to know that and not put the State in that position.” Special Counsel: “In the heat of the argument I lost control of my better judgment.” The Court: “Counsel has made the statement, and it has been objected to, which he ought not to have made, and for which the court reprimands him, because if he undertakes to prosecute in this court he ought to know something about the rules and practice of the law, and you, the jury, will utterly disregard that statement and let it have no weight with you at all in deciding this case.” Special Counsel: “I desire to apologize. I didn’t mean to do anything improper.”

There can be no question, but that the remarks were highly improper. If the reference made to the defendant’s failure to take the stand was the only improper remark made we would be inclined, under the rulings in State v. Taylor, 134 Mo. 109, l. c. 158, and State v. Kelleher, 201 Mo. 614, l. c. 627, to say that the prejudice wás likely cured by the severe reprimand made A7 the court. But the preceding remark of the special counsel in effect that defendant had refused to marry the prosecutrix, which went unrebuked by the court, was unsupported by the evidence. It would appear that counsel was in this manner trying to get before the jury facts which would not have been proper evidence had they been offered upon the stand, and which were of such a character as would inject prejudice into the case. It also appears that the counsel in further attempting to work poison into the case referred to the daughters of the jurors and appealed for a conviction, not alone upon the legitimate ground of defendant ’s guilt, but also upon the ground that their daughters might thereby be protected.

It is a well known fact that jurors are easily prejudiced in this character of case, and for that reason, as was well said by Brown, P. J., in the case of State v. Horton, 247 Mo. 657, l. c. 666: “Officers should conduct prosecutions of this character with scrupulous fairness and avoid injecting into the minds of the jury any matter which is not proper for their consideration, or which would add to the prejudice which the charge itself has produced in their minds.”

"We are of the opinion that, all the remarks considered, sufficient poison and prejudice was improperly injected' to warrant a reversal of the judgment.

The judgment is reversed and the cause remanded.

Roy, G., concurs.

PER CURIAM:

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

All of the judges concur.


source: Caselaw Access Project

author: ROY, C. PER CURIAM.

license: Public Domain

text:
    THE STATE v. MINON KEET, Appellant.
    Division Two,
    December 6, 1916.
    1. CONSTITUTIONAL LAW: Second U. S. Amendment: Concealed Weapons. The Missouri statute against carrying concealed weapons is not in conflict with the Second Amendment to the U. S. Constitution. That amendment is a limitation upon the powers of the national Government, and has no reference to State legislation.
    2. -: Bill of Bights: Concealed Weapons. The Missouri statute against the carrying of concealed weapons is not in conflict with the Bill of Rights of the State Constitution which provides that “the right of no citizen to keep and bear arms in defense of his home, person and property, or in aid of the civil power, when thereto legally summoned, shall be called in question, nut nothing herein contained is intended to justify the practice of wearing concealed weapons.” The emphasis is not on the word “practice” but rather on the word “concealed.” Carrying concealed weapons cannot be excused on the theory that these constitutional words are directed at the practice of habitually wearing concealed weapons.
    3. -:-: Personal Safety: Evidence. The statute (Laws 1909, p. 452) does not permit a citizen to carry a concealed weapon for his personal safety; it does not exempt from its penalties those who carry a concealed weapon in self-defense; and it is not unconstitutional. Testimony that defendant just before his arrest had been assaulted by another who fired several shots at him, and that he was carrying the concealed weapon under well grounded fears for his personal safety, is not competent evidence.
    Appeal from Greene Criminal Court. — Hon. Arch A. Johnson, Judge.
    Affirmed.

      James B. Delaney for appellant.
    The court erred in excluding competent and relevant testimony, offered in cross-examination of witnesses for the State, as well as offered by testimony in behalf of the defendant, tending to show that defendant was carrying the pistol in the necessary defense of his person. (1) The action of thé court is in violation of the natural rights of the defendant, of his common-law rights and of the rights guaranteed by section 17, article 2, of the Constitution of the State of Missouri. (2) The Constitution (Art. 2, sec. 17) declares “that the right of no citizen to keep and bear arms in defense of his home, person and property . . . shall be called in question.” This is an enunciation of natural law of which no citizen can be deprived by legislative enactment. (3) The negation in said constitutional provision, to-wit, ‘-‘but nothing herein contained is intended to justify the practice óf wearing concealed weapons,” is not intended to be a limitation upon the right to bear arms in self-defense— each man being either justified or condemned by the facts in each particular case. The negation is designed merely to prevent the abuse of a natural right; is designed merely to prevent the practice of wearing concealed weapons or such practice under the guise of defense of the person. If the framers of the Constitution intended otherwise, intended such a radical, repressive measure against the law of nature, plainer, clearer language would have been used. They would have declared in unequivocal language that “no one' even in defense of his person shall carry a concealed weapon.” (4) The trial court justifies its ruling under the amendment of the law governing the carrying of concealed weapons. This position is untenable. The omission from the Revision of 1909 of the provision of Sec. 1863, R. S. 1899, to-wit: “It shall be a good defense to the charge of carrying such weapon, if the defendant shall show that he has been threatened with great bodily harm, or had good reason to carry the same in the necessary defense, of his person,” is not a legislative decree that such defense would not thenceforth be available, even if it had the power to make such a decree, (a) Said Sec. 1863, R. S. 1899, was neither a proviso or an exception to section 1862. (b) If it were not an exercise of judicial power (which we contend), it was merely declaratory of the common law and of the law of nature, (c) Without such enactment, such defense could have been rightly invoked. (d) The repeal of such a declaration is neither indicative of an intention to deprive the citizen of such right, nor does it enlarge section 1862, because it is not an exception or proviso to section 1862, but an independent declaration, and the repeal of a merely declaratory law leaves the common-law principle unimpaired. So the omission of said section 1863 may have been for other good reasons: (a) Because it was a legislative invasion of the judicial field, (b) As expressed, it may have been too broad, and might have been held to warrant the carrying of such weapon while in a state of intoxication, (d) Or, the Legislature may have concluded it was not a subject to be regulated by rule, but should be remitted to the courts for each particular case to be settled by its own conditions.

      John T. Barker, Attorney-General, 8. P. Howell, Assistant Attorney-General, and James V. Billings for the State.
    (1) The prohibition against carrying concealed arms is not an infringement on the constitutional right of the people to bear arms. Sec. 17, art. 2, Constitution; Sec. 4496, R. S. 1909;' State v. Shelby, 90 Mo. 302; State v. Wilforth, 74 Mo. 528; State v. Reid, 1 Ala. 612; State v. Mitchell, 3 Blackf. (Ind.) 229. (2°) The rulings and remarks of the trial court in admission of testimony were correct and proper.
   ROY, C.

The defendant was convicted of carrying a concealed weapon, a revolver, and his punishment-was assessed at a fine of $175. He has appealed.

On the trial the defendant offered evidence tending to show that he had just before his arrest been assaulted by one Tyndal, who fired several shots at him, and that he, the defendant, was carrying the pistol under well grounded fears for his personal safety. The court excluded such evidence. The propriety of that ruling is the only question involved' in this appeal, which comes to this court because of the fact that it involves the construction of both the Federal and State constitutions.

I. Our statute against carrying concealed weapons is not in conflict with the second article of the amendments to the Constitution of the United States, as that amendment has no reference to State legislation, but is a limitation upon the powers of the national Government only. [State v. Shelby, 90 Mo. 302; Presser v. Illinois, 116 U. S. 252.]

II. Neither is that statute in conflict with the Bill of Rights in our State Constitution which provides, “That the right of no citizen to keep and bear arms in defense of his home, person and property, or in the aid of the civil power, when thereto legally summoned, shall be called in question, but nothing herein contained is intended to justify the practice of wearing concealed weapons.”

Counsel for appellant contends that the word “practice” as there used has reference to the man who individually makes a practice of wearing concealed weapons, as distinguished from him who temporarily wears them for self-defense. We think otherwise. The word “practice” as there used has reference to an existing practice or custom, more or less general among citizens, of wearing such weapons concealed; and the intention is that the Legislature shall have the power to destroy such practice or custom by prohibiting the wearing of concealed weapons by any individual, even the wearing of them temporarily and for self-defense. For it is only by punishing the individuals severally that the practice or custom can be destroyed.

That word “practice” will be found in some of the cases hereinafter cited, and in no case is it used in the sense contended for by the appellant. Appellant’s brief says:

“The word practice as used therein is significant. It would be doing outrage to every natural impulse and to the universal sentiment of mankind to say that a man may not bear arms in such manner and of such character and at such time and-place as he may deem necessary for self-preservation, leaving always to the law of the land and to his peers the question of his good faith and the necessity or reasonableness of his conduct. ’ ’

A claim so boldly made should be squarely met. "We have been able to find but two cases in the Union holding a law unconstitutional because it prohibited the carrying of concealed weapons. In State v. Rosenthal, 75 Vt. 295, a city ordinance against carrying concealed weapons was held contrary to the constitution of that state which provided that “the people have the right to bear arms for the defense of themselves and of the State.”' There is nothing said in that Constitution about “the practice of wearing concealed weapons.” Not a single authority is there cited to support the ruling.

The other case is Bliss v. Commonwealth, 2 Litt. (12 Ky.) 90, decided in 1822. It held a statute against carrying certain weapons concealed to be contrary to the constitution which provided “that the right of the citizen to bear arms in defense of themselves • and the State shall not be questioned.” The statute made no exception where the weapon was carried in self-defense and self-defense was not a ground of defense in the case, yet the court held that the statute was unconstitutional, saying: “For, in principle, there is no difference between a' law prohibiting the wearing of concealed arms, and a law forbidding the wearing of such as are exposed; and if the former be unconstitutional, the latter must be so likewise.”

That case has never been cited with approval, but has often been disapproved. We have noticed that Bishop on Stat: Crimes, sec. 793, note, cites as in harmony with the Bliss , case, Ely v. Thompson, 3 A. K. Mar. (Ky.) 70; Jennings v. State, 5 Tex. App. 298; Leatherwood v. State, 6 Tex. App. 244, and Wilson v. State, 33 Ark. 557.

On examination we find that Ely v. Thompson involved the validity of a statute which provided for the infliction of cruel and unusual punishments, but did not involve the carrying of concealed weapons. The two Texas cases cited upheld the power of the Legislature to regulate the wearing of arms, hut merely held invalid the provision of the statute for the forfeiture of the weapon. In the Arkansas case there cited the statute was against the carrying of certain weapons whether concealed or not. The court cited with apparent approval Fife v. State, 31 Ark. 455, in which the power of the Legislature to prohibit the wearing of concealed weapons is recognized. We note also that State v. Wilforth, 74 Mo. 528, says that the doctrine of the Bliss case prevails in Tennessee. No case from that State is there cited. We can find none. Aymette v. State, 21 Tenn. (2 Hump.) 154, and Andrews v. State, 50 Tenn. (3 Heis.) 165, uphold the right of the Legislature to prohibit the wearing of concealed weapons and disapprove the Bliss case.

Section 1, paragraph 7, of the present Kentucky Bill of Rights preserves to the people “the right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.’'’ The statute of that state passed in 1854 against carrying concealed weapons made an exception where it was done in self-defense. That exception has been dropped from the present statute of that state. [See R. S. of Ky. 1909, secs. 3391 to 3396 inclusive.]

Hopkins v. Commonwealth, 66 Ky. 480, decided while the exception above mentioned was in the statute, said:

“A statute so beneficent and so often and so easily evaded, should be vigilantly upheld, and stringently enforced by the judiciary for repressing a dishonorable and mischievous practice, which, licensed or unlicensed, leads, almost daily, to causeless homicides and disturbances, which would otherwise never be perpetrated; and to that end, the accused should always be required to prove that he carried a concealed weapon only for the purpose of defending himself or family or property against an impending attack, reasonably apprehended, and which, if attempted, would justify the use of some such means of defense.”

State v. Reid, 1 Ala. 612, was decided in 1840. The constitution of that state then provided that “every citizen has a right to hear arms in defense of himself and the State.” The statute prohibited the carrying of certain named weapons concealed, without any exception in favor of a person acting in self-defense. The evidence showed that the defendant had been attacked by a dangerous and desperate character who threatened his person and came to his office several times to look for him. The court refused an instruction to the effect that defendant had a right to' carry the weapon concealed for self-defense, but instructed that the defendant had no such right. The judgment was affirmed. The Bliss case was expressly disapproved, the court saying:

“The question recurs, does the act, ‘To suppress the evil practice of carrying weapons secretly,-’ trench upon the constitutional rights of the citizen. We think not. The Constitution in declaring that ‘every citizen has the right to hear arms in defense of himself and the State,’ has neither expressly nor by implication denied to the Legislature the right to enact laws in regard to the manner in which arms shall be borne. The right guaranteed to the citizen, is not to bear arms upon all occasions and in all places, hut merely ‘in defense of himself and the State.’ The terms in which this provision is phrased seems to us necessarily to leave with the Legislature the authority to adopt such regulations of police as may be dictated by the safety of the people and the advancement of public morals.”

This court in State v. Wilforth, 74 Mo. 528, made its choice between the Bliss and the Reid cases, giving the preference to the latter, so far as the questions as there presented were involved. In that case this court said that the statute was “directed against the practice of carrying concealed weapons or firearms, and the pernicious consequences flowing from such a practice.”

The word “practice” is there considered as having the same meaning that we are giving it, and not the one contended for by appellant.

It was said in In re Brickey, 8 Idaho, 597:

“A statute prohibiting the carrying of concealed deadly weapons would be a proper exercise of the police power of the State. But the statute in question does not prohibit the carrying, of weapons concealed, which is of itself a pernicious practice, but prohibits the carrying of them in any manner in citiés, towns and villages. We are compelled to hold this statute void.”

And in State v. Buzzard, 4 Ark. 18, the court said:

“The act in question does not, in my judgment, detract anything from the power of the people to defend their free state and the established institutions of the country. It inhibits only the wearing of certain arms concealed. This is simply a regulation as to the manner of bearing such arms as are specified. The practice of so bearing them, the legislative department of the'government has determined to be wroiig, or at least inconsistent with sound policy.”

In Nunn v. State, 1 Ga. 243, it is said:

“We.are of the opinion, then, that so far as the act of 1837 seeks to suppress the practice of carrying certain weapons secretly, that it is valid, inasmuch as it does not deprive the citizen of his natural right of self-defense, or of his constitutional right to keep and bear arms. But that so much of it as contains a prohibition against bearing arms openly, is in conflict with the Constitution, and void.”

Our constitutional provision on the subject originated in 1875. The words, “the practice of wearing concealed weapons,” are, as we have seen, the language of the courts of our sister states; and there is no reason for thinking that those words are used in the Constitution in a sense other than the one given them in the reported cases.

We had no statute on the subject until the Act of March 26, 1874 (Laws 1874, p. 43).

The provision exempting those who carried a weapon in self-defense from the penalty of the law originated in' the Revised Statutes of 1879, section 1275. That provision was expressly repealed by the Act of April 28, 1909 (Laws 1909, p. 452), and has never been reenacted.

In State v. Wilforth, supra, and in State v. Shelby, 90 Mo. 302, the power of the Legislature to prohibit the carrying of concealed weapons was affirmed, but those cases did not, like this, involve the right to prohibit the carrying of such concealed weapons for self-defense, under reasonable apprehension of danger.

Less than a century ago the arms of the pioneer were carried openly, his rifle on his shoulder, his hunting knife on his belt. Since then deadly weapons have been devised small enough to be carried effectively concealed in the ordinary pocket. The practice of carrying such weapons concealed is appreciated and indulged in mainly by the enemies of social order. Our State has been one of the slowest to act in meeting this comparatively new evil, but she has finally spoken in no uncertain language.

The judgment is affirmed.

Williams, G., concurs.

PER CURIAM.

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

All of the judges concur.


text:
    THE STATE v. HARRY N. BOBBST, Appellant.
    Division Two,
    December 6, 1916.
    1. PRESENCE AT TRIAL: No Request. In. the absence of a request by defendant to be present in court on the day his case is set for trial, a verdict of guilty of murder will not be reversed because he was not present on that day..
    2. JUROR: No Challenge. If the bill of exceptions fails to disclose , a challenge of a juror, any challenge on appeal to the juror’s qualifications will not .be considered.

      3. FAIR. PANEL: Opinion On Voir Dire: Subsequently a Witness: Fraud on Defendant’s Rights. Where a prospective juror on his voir dire stated he had not formed or expressed an opinion as to the sanity or insanity of defendant, and not being selected as one of the jury of twelve was produced as a witness for the State and testified that there was nothing to make him think defendant was “unsound,” that he acted like an “ordinary man” and had “sufficient mind to know he would be punished if he killed his wife,” there is no such discrepancy in his answers, in view of the questions asked, as authorizes a reversal, in a case in which the defense is insanity.
    4. -: -: -: -: Objection Too Late. Besides, all the facts being known to defendant before verdict, the objection that said juror’s conduct amounted to a fraud upon defendant’s right to have a panel of forty fair and impartial men, came toó late when raised for the first time in the motion for a new trial.
    5. INSTRUCTION: For Murder in Second Degree: Insanity as Defense. Where if the State’s evidence is to be believed defendant was guilty of murder in the first degree, and if defendant’s is to be believed he was not guilty of any crime because of insanity, there is no error in refusing an instruction on murder in the second degree.
    6. -: On Insanity: Assuming Defendant Killed Deceased. Where’ the evidence that defendant killed his wife is strong and uncontradicted, instructions given on the defense of insanity which assume that he did kill his wife do not prejudice his rights, though it is better form for the instructions not to assume such fact.
    7. -: That There Is No Evidence of Provocation. Where the court defines “deliberately” as “done in a cool state of the blood, not in a sudden passion engendered by lawful or some just cause of provocation,” it is not erroneous if the instruction goes further and tells the jury that there is no evidence tending to show such passion or provocation, if as a fact there is no evidence of sudden passion or provocation.
    8. —-: -: Conflict With Davis Case. And said instruction is in better form and more accurate than the one given in State v. Davis, 226 Mo. 1. c. 515, wherein the words used were, “in a cool state of blood and not under violent passion suddenly aroused by some real or supposed grievance.”
    9. -: Drunkenness: Failure to Define: Insanity as Defense. Where the defense is insanity and the instructions clearly distinguish between drunkenness and insanity, it is not error to fail to define the word “drunkenness” used in the instruction telling the jury that drunkenness is no defense to a criminal charge. Drunkenness alone, in any degree, will not relieve from the responsibility for crime.

      10. -: Extra-Judicial Statements of Defendant: Caution. Refusal to give an instruction .which in effect cautions the jury as to the weight they may give to any proven extra-judicial statements which they may find defendant made concerning the circumstances attending the death of his wife, is not error, where it is undisputed that defendant caused her death and there has been no such lapse of time as would likely affect the memory of the witness.
    11. -: Prior Insanity: Presumption of Continuance. Where the evidence shows no prior condition different from the defendant’s apparent condition at the time the homicide was committed, and establishes not so clearly a prior condition of insanity as it does a condition of moral degeneracy, superinduced by habits of bad living, it is unnecessary for the court to instruct the jury that if they find defendant prior to the homicide was in a habitual, permanent or chronic state of insanity, such condition is presumed to continue, and the burden is on the State to repel and overcome it.
    Appeal from St. Charles Circuit Court. — lion. Edgar B. Woolfolh, Judge.
    Affiumtsd.

      B. H. Dyer and Rosenberger S Dowell for appellant.
    (1) The action of the court in setting this cause down for trial in the absence of the defendant necessitates a reversal. State v. Warner, 165 Mo. 399. (2) The court erred in assuming in the State’s instructions numbers one to fifteen inclusive that the defendant admitted the fact of having shot and killed his wife. (3) In State’s instruction number three the court erred in its definition of the word ‘ ‘ deliberately, ’ ’. and in further instructing the jury that in this case there is no evidence tending to show the existence of sudden passion engendered by lawful or some just cause of provocation. (4) The court erred in not defining what was meant by the word “drunkenness” as used in all the instructions. (5) The court erred in refusing to give to the jury defendant’s instruction number P, being a cautionarv instruction on the question of statements made by him. (6) The court erred in refusing to give to the jury defendant’s instruction on the presumption of continued insanity. State v. Lowe. 93 Mo. 547: State v. Wade, 161 Mo. 441; Buford v. Grueber, 223 Mo. 231.

      John T. Barker, Attorney-General, and Lee B. Ewing, Assistant Attorney-General, for tbe State; James P. Kem, of counsel.
    (1) Tbe appellant cannot now complain because he was not present in tbe court room when, bis cause was set for trial, for tbe reason that be made no request to be present. State v. Miller, 191 Mo. 587; State v. Taylor, 171 Mo. 465. (2) Tbe court did not err in sustaining a peremptory challenge to juryman Hyppolyte Hunn, for no question as to tbe qualification of this juror can be raised in this court, as no proper challenge appears to have been made. State v. Taylor, 134 Mo. 109; State v. Allbright, 144 Mo. 638; State y. Dyer, 139 Mo. 199; State v. Evans, 16.1 Mo. 95; State v. Wooley, 216 Mo. 620. Tbe correct rule as to tbe qualification of jurors, as laid down by statute and in tbe decisions of this court, was followed by tbe trial court. Sec. 5220, R. S. 1909; State v. Cunningham, 100 Mo. 382; State v. Core, 70 Mo. 491; State v. Barton, 71 Mo. 288; State v. Farrow, 74 Mo. 531; State v. Sykes, 191 Mo. 62; State v. Myers, 198 Mo. 225; State v. Bobbitt, 215 Mo. 10; State v. Vickers, 209 Mo. 12. • (3) There is nothing in tbe testimony or conduct 'of John Miller, as a juryman or as a witness, to justify tbe interference of this court. State v. Phillips, 117 Mo. 389; State y. Gonce, 87 Mo. 627; State v. Nocton, 121 Mo. 537. (4) The court did not err in failing to instruct on murder in tbe second degree. State v. Harris, 177 S. W. 362; State v. Paulsgrove, 203 Mo. 193; State v. Wilson, 88 Mo. 15; State v. Ross, 24 Mo. 489; State v. Sassaman, 214 Mo. 695. (5) Tbe court did not err in failing to define tbe term “drunkenness” in its instructions. (6) Tbe court did not err in refusing to give defendant’s instruction numbered “P.” State v. Henderson, 186 Mo. 473; State v. Floyd, 15 Mo. 349.
   WILLIAMS, C.

Upon an indictment charging him with murder in the first degree for killing his wife, defendant was tried in the circuit court of St. Charles County, found guilty and his punishment assessed at imprisonment in the penitentiary for life. Defendant has duly appealed.

The killing occurred about 4:30 a. m., November 10, 1914, at the home of defendant’s wife, in the city of St. Charles. For several months prior thereto defendant and his wife were living apart. She, together with her daughter Beulah, and a young man named Henry, a boarder, occupied a three-room house in St. Charles.

It appears that the police of St. Charles held a warrant for defendant’s arrest for peace disturbance and for this reason he was living away from his family. Defendant’s son, Eddie, thirteen years old, stayed with his father across the river most of the time.

Defendant had no regular occupation, but made a little money gathering rags and old junk. He was a strong drinker and spent most of his money in that way. Sometimes the neighbors across the river would give him something to eat and sometimes his wife would go across the river and take him something to eat and sometimes would take him whisky. Defendant, although he had no means of supporting his family, constantly demanded of them that they move across the river with him and he told many of his associates across the river that if his wife did not come and live with him he would kill her. In talking to others he would frequently charge his wife and daughters with being prostitutes and complain because the boarder, Henry, remained at the house, stating that he was attempting to ruin his youngest daughter Beulah. He also accused his wife of having other men come to her house. It appears that the wife was a hard-working woman of good character and that these charges were unfounded. About a week before the homicide, appellant and his wife were standing on the St. Charles bridge and defendant was urging his wife to go back with him across the river. She refused and defendant attempted to throw her off the bridge.

The fifteen-year-old daughter was the only eye-witness to the homicide. She testified that about one o’clock a. m., on the night of the killing, defendant and his son Eddie came to the door and knocked. The deceased opened the door and let them in. Defendant then began to quarrel with the deceased over the fact that Mr. Henry was sleeping in an adjoining room with the door not locked. Defendant got in bed without removing his clothing and it appeared that they quarreled more or less the remainder of the night. The defendant and his wife and the daughter Beulah and the son Eddie all occupied the same room. The defendant was drinking, but was not drunk. He drank some whisky during the night, but did not threaten to kill his wife that night. , He did ask his wife to leave St. Charles and go away with him.

About 4:30 o’clock in the morning the daughter left the room to prepare breakfast, and the deceased started to accompany her, but was held by defendant. After the daughter left the room the defendant fastened the door from the inside by sticking his knife in the jamb. The deceased was heard to tell the defendant that she' wanted to get breakfast, because she “wanted to go to work for Bushman’s,” and the defendant replied that she “would not see Bushman’s any more.” About five minutes after the daughter left the room, she heard a shot and heard her mother scream. She immediately rushed back into the room. She reached the room just as the second shot was fired. She saw the defendant with one arm around the deceased, with a pistol in his hand pointed at the deceased. Defendant said nothing, but was gritting his teeth and pulling the trigger of the pistol. He fired five shots in all. The daughter grabbed the pistol and received one shot in her arm and leg. In the struggle that ensued the defendant received a wound from one of the bullets. The waist of the deceased was on fire and she took a few steps and fell. The defendant ran from the room, and in a short time, Henry, the boarder, ran out after him. Defendant went immediately to the home of his daughter and son-in-law and said to his daughter; “I want to get away. I don’t want to die in this hole.”

Shortly after this the defendant was found by the police under the floor cf his son-in-law’s house. He was brought out and placed under arrest. He had about a pint of whisky and three or four cartridges. At the time of his arrest, .the son Eddie said to the defendant: “Pa, I told you to leave that, damn gun at home; if you had you would not be in this trouble. I told you to leave it at home and you paid no attention to me.” A short time'after the defendant was arrested he told his son-in-law that if he (the son-in-law) had not kept the deceased from coming across the river, “possibly it would never have happened.”

The wife was taken to the hospital, but died in a few hours from the effects of the bullet wounds. A short time before her death she stated to the people attending her that she had been shot by her husband; and before she was taken to the hospital and while she was at her home, she reached under her pillow and took out a pistol and said that was the gun the defendant used in shooting her. She handed this pistol to the doctor. It was identified and introduced in evidence at the trial.

The attending physician testified that there were three bullet wounds on the deceased’s body and that death was due to an internal hemorrhage caused by the bullet wounds.

The evidence on the part of the defense did not undertake to deny the killing, but tended to show that appellant was insane at the time the act was committed. The evidence in this regard tended to show that defendant’s father “was never considered very bright” and was peculiar; that defendant’s mother thirty-five years ago took to her bed because her husband would not build the kind of a house she wanted and had remained in bed ever since; that defendant had been guilty of petty thievery all his life and had associated with negroes and was frequently seen drinking alcohol and other liquor in alleys and saloons. The children in St. Charles called him “Oats,” because it was rumored that, at one time he sold oats and put sand in them. In reply to this epithet he would run after children with a club. Some of the witnesses testified that he looked like a “tough” man; that he would stand around the street apparently “not caring whether he stayed in this world or not; ’ ’ that he quarreled with his bed-ridden mother and would talk to himself and cry and walk around at night; that he was a heavy drinker; that he wrongfully accused his wife of being intimate with other men. About ten non-expert witnesses testified that in their opinion he was insane or a person of unsound mind and could not distinguish between right and wrong.

Dr. J. 0. Hudson, of Montgomery City, Missouri, testified that he had known the Bobbst family since 1877 and that in that year he was called to see defendant’s mother, who had been in bed several years; that he advised that she he taken out of bed and into the yard, and that after lying outside a while she went back into the house and went to bed again and has been there ever since; that defendant’s father was a man of low mental caliber, filthy, of low morals and a kleptomaniac; that the defendant was a moral degenerate; that he associated with negroes; became intoxicated and had the reputation of being a thief; that during the summer previous to the tragedy defendant came to his house at Montgomery City and told him all of his daughters were prostitutes, and cried and became hysterical, After this occurred, defendant’s wife brought defendant to the doctor’s office, at Montgomery City, for consultation; that upon examining defendant he found him very nervous and that while examining him he had a convulsion and could not talk for awhile. The doctor said that it was a form of insanity and advised that defendant be taken where he could get proper diet. The doctor further testified .that, in his opinion, the defendant did not have sufficient mind to distinguish between right and wrong. Two other physicians examined appellant while he was awaiting trial and gave it as their opinion that his mind was unsound and that he was not able to distinguish right from wrong.

In rebuttal the State offered evidence tending to show defendant’s sanity. Dr. Strumberg examined the defendant while he was in jail and gave it as his opinion that the defendant had sufficient mind to know right from wrong. In addition to this the State called over forty non-expert witnesses, persons who had known him before and up to the time of the tragedy, all of whom testified that in their opinion appellant had sufficient mind to know right from wrong and to know that he would be punished if he killed a person. One witness said he was “shrewd and foxy in his dealings;” another, that he never saw anything peculiar about him; and another that he was “anything else but crazy. ’ ’

I. It is contended that the case must be reversed because the defendant was not present in court on March 2, 1915, when the case was set for trial. We are unable to agree with this contention. In the case of State v. Warner, 165 Mo. 399, relied upon by appellant, the court refused the defendant’s request to be present in court for the purpose of challenging the array of grand jurors, and for that reason, the case was reversed. In the later cases of State v. Taylor, 171 Mo. 465, and State v. Miller, 191 Mo. 587, it was expressly held that if the defendant failed to request permission to be present to challenge the array of grand jurors his absence should not work a reversal of the case. In the present case defendant made no request to be present when the trial date was fixed. Applying the same logic here, and assuming that the presence of defendant upon the fixing of the trial day is a matter of as much importance as is his presence upon the day the grand jurors are impaneled (a matter we need not here determine), yet the absence of defendant, absent a request to be present, would not work a reversal of the case. [State v. Miller, supra, and cases therein cited.]

II. It is contended that the court erred in not sustaining defendant’s challenge to juror Hyppolyte Hunn. This point must be ruled against appellant because the bill of exceptions does not disclose that such a challenge was made. In the absence of a challenge, specifying ^ he grounds therefor, the matter is not for review. [State v. Dipley, 242 Mo. 461, l. c. 474, and cases therein cited.]

III. When the panel of forty were being examined, John Miller, one of the prospective jurors, in response to questions asked him, stated that he had known defendant for several years, but that from his acquaintanceship and observation of defendant he had not formed an opinion as to the sanity or insanity of the defendant. Miller was not selected as one of the jury of twelve, but later upon the trial he was offered as a witness by the State and testified that from his observation of defendant there was nothing to make the witness think that defendant was “unsound;” that he acted like an “ordinary man” and that he had “sufficient mind to know that he would be punished if he killed his wife.”

Defendant insists that the conduct of this prospective juror amounted to a fraud upon defendant’s rights to have a panel of forty fair and impartial men from which to select the jury.

We are inclined to the view that the discrepancy between this witness’s testimony as a prospective juror and later as a State’s witness was due, not to an intentional effort to deceive, but rather to a misunderstanding of, or the difference in, the questions asked. If, as the witness later testified, he had observed nothing peculiar in defendant’s actions during his acquaintanceship with him, it is quite probable that he had never formed an opinion as to the defendant’s sanity or insanity.

Strictly speaking it is not the common experience to form opinions as to the insanity of associates and acquaintances unless peculiarities are discovered which lead the observer to suspect unsoundness. Neither is it the common experience to consciously form opinions as to the sanity of acquaintances until the sanity of such a person is put in question or the observer is called upon to give an opinion. There is nothing .in this record to indicate but what the witness, had he been asked the samé, questions upon his voir dire as were later put to him as a witness, would have made the same answers. '

The matter carefully considered, we do not regard the situation as one calling for an interference by thus court. Furthermore, all the facts were known to defendant before verdict, but he failed' to raise the point by proper motion or objection timely made upon discovery and before verdict. Under such circumstances the objection comes too late when raised for the first time in the motion for a new trial. [State v. Phillips, 117 Mo. 389, l. c. 394.]

IV. The court did not err in refusing an instruction on murder in the second degree. If the State’s evidence is to be believed, defendant was guilty of miirder in the first degree. If the defendant’s evidence is to be believed, the defendant was not guilty of any crime because of insanity. There was no evidence to support the theory of murder in the second degree. [State v. Paulsgrove, 203 Mo. 193, l. c. 206.]

V. We do not find merit in appellant’s contention that the court committed reversible error because some of the instructions given on the defense of insanity assume that the defendant killed his wife. That defendant did kill his wife cannot be said to be a really controvertible issue under the facts here disclosed. And although, technically speaking, it was probably bad form to assume such fact in said instructions, yet it cannot be said, in view of the strong, uncontradicted evidence of such killing, that the rights of appellant were in any manner prejudiced thereby.

The court defined the word “deliberately” as “done in a cool state of the blood, not in a sudden passion engendered by lawful or some just cause of provocation” and further instructed the jury that there was no evidence tending to show such passion or provocation. This identical form of instruction was in the ease of State v. Ellis, 74 Mo. 207, l. c. 220, stated as the correct form to be given where there is no evidence of such sudden passion or provocation. There was no evidence of this kind in the case at bar. To the same effect are State v. Donnelly, 130 Mo. 642, l. c. 647; State v. Taylor, 171 Mo. 465, l. c. 477, and State v. David, 131 Mo. 380, l. c. 395.

Appellant contends that the above quoted portion of the definition conflicts with the one given in State v. Davis, 226 Mo. 493, l. c. 515, to-wit, “in a cool state of blood and not under violent passion suddenly aroused by some real or supposed grievance.” It is true that the wording of these two instructions is somewhat different, but there appears to be but little difference in the meaning conveyed. If it cam be said that there is any material difference in the meaning of quoted portions of the two definitions, it appears that the definition given by the court of his own motion' in the case at bar is somewhat wider in scope and therefore of benefit rather than detriment to the defendant. We are inclined to the opinion" that the instruction complained of is in better form and more accurate than the one quoted in State v. Davis, supra, and that the court did not err in giving the same.

VI. It is insisted that the court erred in failing to define the term “drunkenness,” as used in the instructions given on the proposition that drunkenness is no defense to a criminal charge. We are unable to agree with this contention. The instructions given on this proposition fully covered the subject and ■were in form often approved. Drunkenness and insanity were clearly and correctly distinguished by these instructions and further definition or explanation of the term drunkenness was unnecessary. It is suggested by appellant that the term drunkenness might suggest to the different jurors different degrees of intoxication. Even if this were true, it would not result in injury to appellant, because drunkenness alone, in any degree, would not relieve appellant from responsibility for the crime.

VII. We must disallow the contention that the court erred in refusing to give appellant’s instruction “P,” which in effect cautioned the jury as to the weight they should give to any proven extrajudicial statements which the jury might find the defendant had made concerning the circumstances attending the death of his wife.

In the case of State v. Moxley, 102 Mo. 374, l. c. 390, cited and relied upon by appellant, the cause of the death and the identity of the criminal agent, if any, were contested issues relying wholly upon circumstantial evidence for their proof. Furthermore, the alleged statements of defendant in that case occurred about four years before they were detailed in evidence at the trial. Under those circumstances the instruction was undoubtedly proper. But in the case at bar there is no dispute as to the cause of the death or as to the person causing the same. Neither did such lapse of time intervene as would likely affect the memory of the witness, nor were there other circumstances making necessary such an instruction. [State v. Henderson, 186 Mo. 473.]

YTII. Error is assigned upon the court’s refusal to give the following instruction asked by appellant, to-wit:

“The court instructs the jury that if you find and believe from the evidence that for some time prior to November 10, 1914, the defendant was in a habitual, permanent, or chronic state of insanity, then and in that ease the presumption of the law that the defendant was sane and of sound mind at the time he shot his wife, is removed and repelled and the law presumes that such insanity continued up to and existed at the time he shot his wife, and the defendant is not required to prove he was insane or of unsound mind at the time he shot his wife, but it devolves upon the State, in that case, to prove that at the time defendant shot his wife, he was sane and of sound mind as explained and defined in the other instructions.”

Appellant cites State v. Lowe, 93 Mo. 547, in support of this proposition. In that case the evidence clearly established the prior existence of habitual insanity for many years preceding the defendant’s removal from Kentucky to Missouri some three years prior to the homicide, and it was properly held that under those facts the instruction as to the presumption of continued insanity should have been given.

The case at bar presents a very different situation. Here the evidence does not show any prior condition different from the apparent condition at the time the act was committed, and establishes not so clearly a prior condition of insanity as much as it does a condition of moral degeneracy, superinduced by his bad habits of living.

The evidence does not prove a prior existing insanity any more cleaily than it proves that defendant was insane at the time of the act. Under such a state of facts, we are unable to discover the necessity of an instruction of this kind. Here the question of insanity was one to be determined, not from a presumption springing from a clearly proven prior condition of insanity, but one, which if found to exist would in all probability require a consideration of all the facts and circumstances detailed in evidence down to the very time of the act.

A portion of the distinction here attempted is, we think, very analogous to the one made in the case of State v. Palmer, 161 Mo. 152. The point is ruled against appellant’s contention. The judgment is affirmed,.

Roy, G., concurs.

PER CURIAM:

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

All of the judges concur.


author: ROT, C. PER CURIAM:

text:
    THE STATE, Appellant, v. CHARLES McENIRY.
    Division Two,
    December 6, 1916.
    1. CONSTITUTIONAL LAW: Amendment: New Section: Title. If a section of the Revised Statutes is to be amended the-title should give notice of the amendment, and if a new section is to be enacted in lieu of one to be repealed the title should announce that fact.
    2. -¡Title: Broader Than Act: Act Broader Than Title: Burning Carcasses of Diseased Swine. The title of the act (Act of March 22, 1913, Laws 1913, p. 222) was: “An Act to repeal section 4868 of article 8, chapter 36, Revised Statutes of the State of Missouri, 1909, entitled, ‘Swine dying of disease to be burned — notice of possible contagious disease to be posted — other provisions.’ . Providing penalty for violation of this act.” The body of the act purports to repeal the section mentioned in the title, and to enact a new section in lieu thereof, but does not provide any penalty. Held, that the new section is clearly outside the title and void: and the words “Providing penalty for violation of this act” were misleading, because no penalty was mentioned in the bill.
    Appeal from Pettis Circuit Court. — Hon. Hopkins R. Slicdn, Judge.
    Affirmed.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
    (1) The title to the amendatory act (Laws 1913, p. 222) is sufficient. Amendments to sections of the revised statutes may he made by acts whose titles refer to those sections by numbers. State ex rel. v. County Court, 128 Mo. 439. (2) Thé purpose of a title to a hill is to indicate to the members of the Legislature in clear terms its general contents. Ferguson v. Gentry, 206 Mo. 198; State ex rel. v. Miller, 100 Mo. 445; State ex rel. v. Revelle, 257 Mo. 538. (3) Where the evident purpose of the repeal is to displace the old law and substitute the new in its stead, as in the case at bar, the repealing section or clause, being dependent upon that purpose of substitution, necessarily falls when falls the main purpose of the act. Lewis’s Sutherland on Stat. Const:, sec. 245; State v. Thomas, 138 Mo. 99; Jodd v. Railroad, 259 Mo. 241; Carr v. Indian, 11 L. R. A. 374. (4) If the Act of 1913 purporting to repeal Sec. 4868, R. S. 1909, is unconstitutional, then said section is and was at the time of committing the alleged offense, valid and still in force. See authorities under point 3. (5) Sec. 4869, R. S. 1909, prescribes the penalty for a violation of the act in question, and it is not invalid for the reason that it does not provide a penalty.

      D. E. Kennedy for respondent.
    The title of an act is to indicate to the members of the Legislature and the people in dear terms the general contents of .the hill — it must be a fair index. State v. Miller, 45 Mo. 495; State ex rel. v. County Court, 51 Mo. 350; Kansas City v. Payne, 71 Mo, .162; State v. Burgdoerfer, 107 Mo. 17; Wetzmann v. Railroad, 131 Mo. 618; State ex rel. v. Borden, 164 Mo. 236; Williams v. Railroad, 233 Mo. 676; State v. Distilling Co., 237 Mo. 103; State v. Rawlins, 232 Mo. 559.
   ROT, C.

The defendant was charged by information with a failure to hum the carcasses of swine owned by him, which had died of cholera.

The court sustained a motion to quash the information on the ground that the Act of March 22, 1913 (Laws 1913, p. 222), is void. That act is entitled as follows:

“An Act to repeal section 4868 of article 8, chapter 36, Revised Statutes of the State of Missouri, 1909, entitled ‘Swine dying of disease to be burned — notice of possible contagious disease to be posted — other provisions.’ Providing penalty for violation of this act. ’ ’

The body of that act purports to repeal the section mentioned in the title, and to enact a new section in lieu thereof, and it does not provide any penalty. The new section there attempted to be enacted is clearly outside the title of the act and void.

It is true that a section of the Revised Statutes may be amended by a bill the title of which gives notice that the bill is an amendment of such section, without other description of the subject-matter. [State ex rel. v. County Court, 128 Mo. l. c. 440, and cases there cited.] But the title of the bill here under discussion does not give notice that the section is to be amended, or that a new section is to be enacted in place of it. It merely says that it is to be repealed. The fact that such title contained the words, “Providing penalty for violation of this act,” does not save the bill. Those words were misleading as no penalty was mentioned in the bill. The amendment made by the bill was not in the title, and the penalty called for by the title was not in the- bill. The title was misleading in both respects and one of those errors does not heal the other.

The judgment is affirmed.

Williams, C., concurs.

PER CURIAM:

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

All of the judges concur.


author:
WILLIAMS, C.
      PER CURIAM:

text:
    THE STATE v. HENRY SAAK, Appellant.
    Division Two,
    December 6, 1916.
    1. INFORMATION: Negativing a Proviso. When the statute contains a proviso exempting a class therein referred to from the operation of the statute, the indictment or information need not negative the proviso. [Holding that State v. Carson, 231 Mo. 1, does not announce a contrary rule.]
    2. -: -: Practicing Medicine Without License. Where the statute makes it a crime for any person to practice medicine without a license, and in a proviso says that physicians registered prior to March 12, 1901, shall be regarded for every purpose as licentiates and registered physicians, an information charging defendr nt with practicing medicine without a license is not defective for that it does not charge that the defendant was not a physician registered prior to March 12, 1901.
    3. -: Duplicitous: No Bill of Exceptions. Duplicity in an information is cured by verdict; and a motion to quash an information on the ground that it is duplicitous and an assignment that the trial court erred in its ruling thereon should be preserved in a proper manner by a bill of exceptions, and if there is no bill of exceptions the motion or assignment cannot be considered on appeal.
    Appeal from Warren Circuit Court. — Wow. James D. Barnett, Judge.
    Affirmed.

      T. W. Hukriede, E. Rosenberger & Son and Morris & Hartwell for appellant.
    (1) The indictment is defective in that it does not allege that the defendant was not registered as a physician or surgeon on or prior to March 12, 1901. This is a part of the act describing the offense and therefore should have been negatived in the information. This exact question was settled in this court in State v. Carson, 231 Mo. 1, which expressly approves State v. Hellscher, 150 Mo. App. 230. To the same effect see: State v. Hellscher, 156 Mo. App. 63; State v. Brand, 153 Mo. App. 27. (2) The information is defective for duplicity and this is a sufficient reason for setting aside the verdict. These matters were particularly made part of the reasons for asking for a new trial, and also in the motion in arrest of judgment.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
    (1) The information was not defective because it .failed to state that appellant was not authorized to practice medicine and surgery on or before March 12, 1901. State v. DeGroat, 259 Mo. 375; State v. Smith, 233 Mo. 253; State v. Price, 229 Mo. 682; State v. O’Brien, 74 Mo. 550. (2) It is.now too-late for appellant to urge that the information is duplicitous. This objection should have been presented to the trial court by demurrer or motion to quash the information, or by motion to elect. Duplicity in an indictment is cured by verdict. State v. Flynn, 258 Mo. 219; State v. Nieuhaus, 217 Mo. 345; State v. Davis, 237 Mo. 239; State v. Fox, 148 Mo. 524; State v. Blakely, 184 Mo. 187.
   WILLIAMS, C.

Upon an information charging him with a violation of section 8315, Revised Statutes 1909 (practicing medicine, etc., without a license), defendant was tried in the circuit court of Warren County, found guilty and his punishment assessed at a fine of fifty dollars. From that judgment defendant duly appealed to the St. Louis Court of Appeals where the judgment was affirmed.

The case was duly certified and transferred here by order of the St. Louis Court of Appeals because one of the judges thereof deemed the decision to be contrary to the decision in State v. Carson, 231 Mo. 1.

Because of the absence of a bill of exceptions our review is confined to the record proper.

I. Section 8315, Revised Statutes 19091, is as follows:

“Any person practicing medicine or surgery in this State, aud any person attempting to treat the sick or others afflicted with bodily or mental infirmities, and any Person representing or advertising himself by any means or through any medium whatsoever, or in any manner whatsoever, so as to indicate that he is authorized to or does practice medicine or surgery in this State, or that he is authorized to or does treat the sick or others afflicted with bodily or mental infirmities, without a license from the State Board ■ of Health, as provided in this article, or after the revocation of - such license by the State Board of Health, as provided in this article, shall be deemed guilty of a misdemeanor, and punished by a fine of not less than fifty dollars nor moré than five hundred dollars, or by imprisonment in the county jail for a period of not less than thirty days nor more than one year, or by both such fine and imprisonment for each and every offense; and treating each patient shall be regarded as a separate offense. Any person filing or attempting to file as his own a license of another, v or a forged affidavit of identification, shall be guilty of a felony, and, upon conviction thereof, shall be subject to such fine and imprisonment as are made and provided by statutes of this State for the crime of forgery in the second degree: Said fines to be turned into the State Treasury when collected: Provided, that physicians registered on or prior to March 12, 1901, shall be regarded for every purpose herein as licentiates and registered physicians under the provisions of this article. ’ ’

The information does not charge that defendant was “not a physician registered on or prior to March 12, 1901,” and appellant contends that by reason of this omission the information is fatally defec- ,. tive.

We are unable to agree with this contention. The rule of law here applicable is correctly quoted and fully discussed in State v. Smith, 233 Mo. 242, l. c. 254, as follows:

“ ‘When an exception is contained in a. statute defining an offense and constitutes a part of the offense an indictment for such offense must negative the exception; but when the statute contains a proviso exempting a class therein referred to from the operation of the statute an indictment need not negative the proviso. The accused must make the exemption a ground of defense.’ ” [Citing State v. O’Brien, 74 Mo. 549.]

The proviso in the case at bar merely exempted a class from the operation of the statute and falls clearly within the above announced rule.

We do not deem that .anything herein stated conflicts in any manner with the holding in State v. Carson, 231 Mo. 1. The sufficiency of the information was not involved nor discussed in that case and the argumentative reference therein to the holding in the case of State v. Hellscher, 150 Mo. App. 230, on a point not involved in the Carson case, should be treated as obiter dictum.

II. It is further contended by appellant that the information is duplicitous. In the recent case of State v. Flynn, 258 Mo. 211, Fakes, J., speaking for the court, said:

“The general rule is that duplicity in an information or an indictment is cured by verdict (State v. Nieuhaus, 217 Mo. 232; State v. Davis, 237); but that it is error to refuse to sustain a demurrer or a motion to quash a duplicitous indictment or information when the attach is timely made and the error properly preserved for review.” (Italics ours). •

In the case at bar, error, if. any in this regard, was not properly preserved for appellate review. A bill of exceptions was not filed by appellant. The motion to quash and the alleged erroneous action of the court with reference thereto should have been preserved in a proper manner by bill of exceptions. [State v. Humfeld, 253 Mo. 340, and cases therein cited.]

The judgment is affirmed.

Roy. C., concurs.

PER CURIAM:

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

All of the judges concur.


author: ROY, C. PER CURIAM:

text:
    THE STATE v. FRED MALLOCH, Appellant.
    Division Two,
    December 6, 1916.
    1. INDICTMENT: Bawdyhouse: Defendant’s Knowledge. An indictment charging that the defendant was the keeper of a common bawdyhouse is not insufficient because it does not charge that he knew the character of the house at the time of the alleged offense.
    2. -: -: Evidence of Another Place. Where the indictment charges that defendant kept a bawdyhouse at the northwest corner of certain streets, and across the street from the hotel on that corner was an annex in the second story, connected with the hotel by an overhead viaduct, there being no charge that the hotel and annex were used in connection with each other as one establishment, it is improper to admit evidence broad enough to cover both buildings.
    3. -: Instruction: Comment on Evidence: Reputation. An instruction which singles out certain evidence and gives it prominence is erroneous. And in the prosecution of a defendant for keeping a bawdyhouse and displaying thereon the sign of an honest occupation, an instruction which tells the jury that, in determining whether or not the building described in the indictment was used as a common bawdyhouse, and whether or not the defendant had knowledge of such use, they “may take into consideration the gen: eral bad reputation of the inmates of such.house for virtue and chastity,” etc., is improper, as calling special attention to the bad reputation of the inmates of such house, and telling them they may take such evidence into consideration.
    4. -: Refusal of Correct Instruction. An instruction asked by defendant, who kept a hotel, which it is charged was a common bawdyhouse, which tells the jury that “the defendant had the right to furnish lodging and home for the witnesses, Mabel Dennison and Margaret Dale and other women, even though you may find from the evidence that said women were prostitutes and were plying their avocation as such; the only duty that devolved upon the defendant was to not knowingly permit the said women to ply their avocation about his premises and in his hotel building,” announces the true rule of law under the circumstances, and should have been given.
    Appeal from Greene Criminal Conrt.— Hon. B. G. Thurman, Judge.
    Reversed and remanded.

      Roscoe G. Patterson and George Pepperdine for appellant.
    (1) The court erred in failing to sustain defendant’s motion to quash the indictment and in failing to sustain the motions for a new trial and in arrest of judgment. State v. McLaughlin, 160 Mo. 33; State v. Olds, 217 Mo. 305. (2) The court erred in permitting the State to impeach the reputation of the inmates for virtue and chastity and of the hotel without requiring the prosecuting attorney to specify who were the people impeached so that the testimony could he specifically met. (2) The court erred in permitting testimony to the' effect that people had been arrested in the annex charged with lewdness, the annex being a building not covered by the indictment, but across the street from the hotel in question, said testimony being calculated to prejudice the case of the defendant, and defendant not being responsible in any way for such arrests. (4) The court erred in refusing to give defendant’s instruction asked. State v. McLaughlin, 160 Mo. 33; 22 Cyc. 1074.

      John T. Barker, Attorney-General, and Kenneth G. Sear's for the State.
    (1) The indictment is sufficient. State v. McLaughlin, 160 Mo„ 33; State v. Olds, 217 Mo. 305. (2) Evidence as to the reputations of the inmates of a, bawdy house is competent. Clementine v. State, 14 Mo. 114; Commonwealth v. Clark, 145 Mass. 251; People v. Hulett, 15 N. Y. S. 631. (3) Evidence as to arrests made in the annexes was competent for the purpose of showing guilty knowledge. Wigmore on Evidence, sec. 301. (4) In order to complain of a failure to instruct upon all the law in this court it is necessary to save an exception to that effect at the 'time the jury is charged. State v. Pfeifer, 183 S. W. 339; State v. Sloan, 186 S. W. 1002. A building may be a bawdyhouse even though the main business carried on is a hotel. Fitzgerald v. State, 72 S. E. 541. (5) No harmful error was 'committed by a failure to give instruction A. State v. Smith, 15 R. I. 24.
   ROY, C.

The defendant was convicted of keeping a bawdyhouse and displaying thereon the sign of an honest occupation contrary to Revised Statutes 1909, section 4758. He has appealed. '

The indictment charges that the defendant kept a bawdy-house at the northwest corner of College and Market Streets in the city of Springfield, and that he displayed thereon the sign “Palace Hotel.” It does not expressly charge that the defendant knew that the house was kept for such illegal purposes. That hotel was held by the defendant and his sister under a lease, they owning the furniture. The sister was away. Defendant with his family lived in the hotel and he managed it. The main hotel at the northwest corner of the street crossing contains twenty-four rooms. Across the street from it is what is called the “annex” in' the second story, it being connected with the main hotel by an overhead viaduct. There is ample evidence to the effect that for months before the indictment was returned the house was the resort of many persons for illicit sexual purposes, while at the same time it was extensively patronized as a hotel by people who were apparently unaware of the dual nature of the place.

There was evidence tending to show that certain employees of the house managed the illegitimate part of the business without the knowledge or participation of the defendant, but there was evidence also to the contrary.

The State proved by an officer that two people were arrested and taken out of the annex for lewd conduct. To that evidence defendant objected on the ground that the annex was not covered by the indictment. The objection was overruled and there was an exception.

The seventh instruction for the State is as follows:

“The court instructs the jury that the words ‘common bawdyhouse or common assignation house,’ as used in the indictment and instructions, mean a. house where lewd men and women meet and resort for the purpose of having illicit sexual intercourse; and in determining whether or not the house or building described in the indictment was so used, and whether or not the defendant had knowledge of such use, the jury may take into consideration the general bad reputation of the inmates of such house for virtue and chastity, if any such reputation has been shown to your satisfaction by the evidence.”

The defendant asked an instruction marked “A” as follows:

“You are instructed that the defendant Fred Malloch had the right to furnish lodging and home for the witnesses, Mable Dennison and Margaret Dale and other women even though you may believe and find from the evidence that said women were prostitutes at the time and were plying their avocation as such. The only duty that devolved upon said defendant was to not knowingly permit the said women to ply their avocation about his premises and in his hotel building.”

It was refused. Another instruction asked by defendant was covered by the instruction given.

I. Appellant says that the indictment is insufficient for the reason that it does not charge that the defendant knew the character of the house at the time of the alleged offense.

Bishop’s New Crim. Law (8 Ed.), section 1083, says: “A bawdyhouse is any place, whether of ¶ i • i /' i * ii > habitation or temporary sojourn, kept open to the public either generally or under restrictions, for licentious commerce between the sexes.” The law dictionaries, Bouvier, Wharton and Black, say that a bawdyhouse is kept for the purpose of illicit sexual intercourse. The information here charges that the defendant was the keeper of a common bawdyhouse. That is, in effect, a charge that he kept a house for the resort of persons who came for illicit sexual intercourse. The charge presumes and includes such knowledge on the part of the defendant. To keep a house for such purposes certainly means that he had knowledge of the purpose for which the house was used. The indictment in State v. McLaughlin, 160 Mo. 33, was like the one here in that respect. It was not criticised in that respect.

II. In State v. McLaughlin, supra, it was held that the indictment must designate the house on which the s*&n an kones^ occupation or business is displayed. The indictment here complies with that rule. It describes the house as “located at the northwest corner of the intersection of College and Market Streets.” Over the objection of the defendant the State was permitted to show that the officers arrested two persons in the “annex” charged with lewd conduct. The annex was across the street from the building described in the indictment, and was not described in the indictment as being used in connection with the main hotel. We do not here decide that the indictment could not have been so drawn as to cover both the main hotel and the annex as being used in connection with each • other as one establishment. That was not done. The evidence admitted was broad enough to cover both buildings, while the charge covers but one. Such evidence was improperly admitted.

III. Instruction 7 given for the State is improper. It calls special attention to the evidence as to the bad reputation of the inmates of the house and tells the jury that they may take such evidence into consideration.

In State v. Rutherford, 152 Mo. 121, l. c. 133, an instruction was held bad which singled out certain evidence and gave it a marked prominence.

IV. Instruction A asked by the defendant should have been given. The Attorney-G-eneral in his brief frankly says of this instruction: “Perhaps .it may have to be admitted that abstractly considered there is nothing wrong with the declaration, but its refusal worked no harm. ’ ’

In State v. McLaughlin, supra, it was said:

“The second instruction for the State was erroneous in that it permitted the jury to find the defendant’s house was a bawdy-house because one or more women boarded with her and received men in her house for sexual intercourse and paid her a certain part of the money received, without requiring the State to show that defendant knew the said facts or was privy to the said conduct. Moreover, it was in direct conflict with instruction 3 for defendant, which announces the true rule of law in the premises.”

The instruction 3 there mentioned was not materially different from the one under discussion.

The judgment is reversed and the cause remanded.

Williams, G., concurs.

PER CURIAM:

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

All of the judges concur; Revelle, J., in result only.