text:
    THE STATE v. HIRAM MONTGOMERY, Appellant.
    Division Two,
    November 29, 1910.
    1. RESISTING ARREST: Unnecessary Force: Passion: Double Theory of Guilt. Where a deputy constable, who without a warrant has made an arrest, is being tried for killing a bystander, who interfered as he drew his pistol and undertook to arrest another bystannder, the State is entitled to have the question of' his guilt of manslaughter submitted on two theories, where the evidence warrants it: First, that the fatal injuries were inflicted in a violent passion upon reasonable provocation, but not in necessary self-defense; and, second, that without such passion, he, as an officer in resisting an attempt of the deceased bystander to rescue a prisoner, unnecessarily took the life of deceased by using more force than seemed reasonably necessary.
    '2. -; -; Unwarranted Limitations: Instruction.- An instruction for defendant, basing his right' as an officer to use-all force reasonably necessary, even to the taking of life, to resist the attacks of a bystander from rescuing a prisoner, upon the fact that said bystander “obstructed, interfered with or resisted in any manner, -by his words, or acts, the defendant as-such officer in his efforts to convey said prisoner,” who had been arrested without a warrant, goes far beyond the proper limitations of official authority and protection.
    B. --: -: -: -: Converse for State: Consistent. And an instruction given on behalf of the State, presenting the converse of said instruction given for defendant, and not inconsistent therewith, is not error against defendant,, although both, when read together, declare the law in terms, more favorable than defendant is entitled to.

      i. SELF-DEFENSE: Officer. Defendant, a deputy constable, had arrested a woman for a breach of the peace in his presence; at his hotel, and on the way to the magistrate’s office met her husband, who objected to her arrest and resisted the officer, and was himself arrested, and turned over to another deputy. The woman becoming sick, defendant took her to a room, and the other deputy proceeded with her husband towards the office of the justice of the peace. On the way he was hailed by a company of men, one of whom asked him if he had a warrant, and receiving a negative reply told him he had better get a warrant and be on the safe side. Just then the defendant came up, and was much angered at what the man had said, and drawing his revolver told him he would take him too. The, deceased then came up and seized the revolver with one hand’ and with the other tried to hold defendant, who turned the revolver towards his breast and fired, killing him. Deceased was unarmed, and four police officers were of the company and standing within a few feet. B&1&, that deceased’s assault upon defendant, if such it may be called, was of such a character as to show an entire absence of that peril or danger or apparent, danger to defendant which would justify the taking of life on. the ground of self-defense.
    5. ARREST: Unnecessary Force. In view of the foregoing facts it is held that defendant did not move upon deceased as an officer of the law, but rather as a man who, besides being an. officer, had a private grievance, and, fired with passion, recklessly and needlessly took a human life; and he cannot be-discharged on the ground that his act in shooting deceased (who seized defendant’s revolver to prevent him from needlessly shooting the other man, who in no wise had resisted arrest) was done in the discharge of his official duties and without the use of more force than seemed reasonably necessary.
    6. -: Force .Necessary: To Be Determined by Officr. The officer is not the sole arbiter of the amount of (force necessary to be exercised in making an arrest. He is not to he excused for taking a human life in arresting another if he uses more force than seems to he reasonably necessary. He cannot judge arbitrarily in the matter. He can use no more force than seems reasonably necessary under all the circumstances, and it is for the jury to determine whether or not he did.
    Appeal from Lawrence Circuit Oourt. — Hon. T. C. Johnston, Judge.
    Affirmed.

      W. B. Skinner and Val Mason for appellant.
    Under such circumstances it was the duty of the court to instruct the jury that the defendant had the right to use such force as seemed to him (defendant) to he reasonably necessary in the premises to maintain his authority, and conduct his prisoner to a place of arraignment and trial, when his lawful authority was assailed or a rescue attempted, and this the court did not do. in instruction 4. State v. Dierberger, 96 Mo. 666. It is true that the court, at the request of the defendant, did give instruction 8, that the defendant had a right to use such force as seemed to him to he reasonably necessary to accomplish the arrest and convey his prisoner to the office of the justice of the peace, but this does not cure the failure of the court to properly define manslaughter, and the lawful privilege of an officer in- the discharge of his official duty.

      Elliott W. Major, Attorney-General, and Charles G. Rev elle, Assistant Attorney-General, for the State.
    (1) The complaint lodged against instruction 4 'completely loses its force when that instruction is read in connection with instructions, numbered 9 and 8, given at the instance of appellant. It is fundamental that instructions must be construed together, and although a single instruction may be incomplete or technically erroneous, yet if, when taken together, the instructions form, as a whole, a correct announcement of the law on that subject, they are not erroneous, and afford no basis for reversal. State v. McKenzie, 177 Mo. 715. That portion of instruction 4 against which criticism is leveled, correctly states the general rule of law applicable to such subjects, while instructions 9 and 8 are explanatory and qualifying, fully explaining the general rule announced in number 4, and specifically applying it. These instructions correctly declared the law and placed the case before the jury in a light most favorable to appellant. State v. Lane, 158 Mo. 587; State v. Rose, 142 Mo. 418; State v. Bates-well, 105 Mo. 609; State v. Coleman, 186 Mo. 162; State v. Dierberger, 96 Mo. 666. (2) Relative to the assignment that the verdict is against the weight of the evidence, it is sufficient merely to say that the record discloses an abundance of evidence which, if believed, not only sustains the verdict of fourth degree manslaughter, but would fully support a finding of guilty on a much higher degree of the crime. The appellant’s own testimony is sufficient to warrant the verdict. This court will not convert itself into a trier of facts, and undertake to find a different result from that of the jury. State v. Matthews, 202 Mo. 147; State v. McCullough, 171 Mo. 574; State v. Tetrick, 199 Mo. 100; Státe v. Williams, 199 Mo. 137.
   KENNISH, J.

On the 9th day of September, 1908, the prosecuting attorney filed in • the criminal court of Greene' county an information charging the defendant, Hiram Montgomery, with the crime of murder in the first degree. The information was in due form, and charged that defendant shot with a pistol and killed George Mitchell at said county bn the 23d day of August, 1908.

On the application of the defendant the venue of the cause was changed to Lawrence county, where, at the March term, 1909, upon a plea of not guilty, the defendant was tried and convicted of manslaughter in the fourth degree, his punishment being assessed at imprisonment in the penitentiary for a term of two years. After unavailing motions for a new trial and in arrest, judgment was pronounced in accordance with the verdict, and the defendant appealed to this court.

On the part of the State the testimony tended to prove that on August 23, 1908, on Sunday_ morning about 9 o’clock, John Montgomery, a deputy constable, and John Denton, his prisoner, were standing on the east side of Campbell street near the public square in the city of Springfield, Missouri. Denton had been arrested without a warrant for a breach of the peace and the deputy constable was taking him as a prisoner to the office of a justice of the peace. On the west side of Campbell street, just opposite where the deputy constable and his prisoner were standing, several persons were congregated, among them Mr. Allen, a court stenographer, three city policemen and two city councilmen. One of the persons thus assembled called to Den-ton to come over to where they were standing. Den-ton and Montgomery went across the street, and the defendant, who as deputy constable had shortly before arrested the prisoner and turned him over to John Montgomery, followed but a few minutes thereafter. Allen asked the officers in charge of Denton if they had a warrant for Denton’s, arrest, and was informed they had not. Allen then told them they had better get a warrant and be on the safe side. ■ The defendant seemed much angered at Allen’s interference and drawing and cocking his revolver told Allen he would take him too. As soon as the revolver was drawn on Allen, Mitchell came up and seized the revolver with his left hand and was trying to hold defendant with his right hand. Defendant turned the revolver toward Mitchell’s breast and fired two shots, the first of which entered the body and inflicted a mortal wound upon Mitchell, from which he died about two days later. The second shot did not strike Mitchell. The policemen and bystanders disarmed the defendant of his revolver and he then drew a billy, which, after a struggle, was also-taken from him.

The defendant was a witness in his own behalf and his testimony tended to show that he was keeping a hotel in Springfield, Missouri, and that on the morning of the difficulty, as deputy constable, he arrested Denton’s wife in his (defendant’s) hotel for a breach of the peace committed in his presence. When taking her to the office of the justice of the peace, and before he had left the hotel, he was met by her husband; the latter objected to and resisted the taking of his wife as a prisoner, and he also was placed under arrest by the defendant. On the way to the office of the magistrate the wife became ill and the defendant took her to her room and directed John Montgomery, who had come upon the scene, to take Denton on to the office of the justice of the peace. As soon as the defendant had taken Denton’s wife to a room he followed and found John Montgomery with the prisoner on the west side of Campbell street, where Allen and others were advising him to procure a warrant for Denton’s arrest. When the defendant came up he spoke to Denton and told him to go with him. Denton refused and thereupon Mitchell interfered and told the defendant he could not take Denton without a warrant. The defendant then told Mitchell he would take him too, and as defendant went to lay his hand upon Mitchell the latter assaulted the defendant, according to this testimony, throwing one arm around the defendant’s neck and seizing the revolver with the other hand, and defendant then shot to protect himself. The defendant’s testimony was corroborated by other witnesses.

Evidence was also offered tending to prove that Mitchell had threatened defendant sometime before the homicide and that the threats had been communicated to the defendant; also that just before the shooting Mitchell had said to one of the bystanders that if he would stay with him, he (Mitchell) 'would see that the officers did not take the prisoner without a warrant, and that the bystander answered that he would stay with Mitchell.

The case was submitted to the jury upon instructions authorizing a conviction of murder in the.second degree or of manslaughter in'the fourth degree, and authorizing an acquittal upon the ground of self-defense or upon the theory that the defendant killed the deceased while acting in the necessary discharge of his official duties. The court also gave such general instructions ujDon reasonable doubt, good character, credibility of witnesses, etc., as were applicable to the evidence.

Appellant complains that the eourt erred in giving of its own motion and at the request of the State instruction number 4. This instruction is as follows:

“If the jury believe from the evidence that George Mitchell resisted the defendant, while the defendant had one Denton in custody and attempted to rescue one Denton from the defendant and attempted to prevent defendant from taking, said Denton before a magistrate, and if you believe from the evidence that said Mitchell, to effectuate said purpose, assaulted defendant, and if you believe from the evidence that to prevent the accomplishment of such purposes on the part of Mitchell, the defendant resisted said Mitchell, and if you believe from the evidence that in making such resistance and in his efforts to retain his prisoner, the defendant unnecessarily took the life of deceased, then the jury will find the defendant guilty of manslaughter in the fourth degree, and assess his punishment as directed in these instructions.”

In order to properly understand appellant’s contention as to the point under consideration it is necessary to set out the following instructions, numbered 8 and 9, given on behalf of the defendant:

“8. The court instructs the jury that if the defendant had been duly appointed as a deputy constable, then the defendant was a peace officer, and as such it was his right, not only to command the peace but to enforce such command by arresting, without warrant, anyone committing a breach of the peace in his presence, and by taking such offender before the proper officer to be dealt with according to law.
“If, therefore, you find from the evidence that the defendant Hiram Montgomery, had been appointed a deputy constable of Campbell township, in Greene county, Missouri, and that one John Denton had committed a breach of the peace in defendant’s presence and that defendant had arrested said Denton on said charge, and either alone or with the aid and assistance of another deputy constable, to-wit, John Montgomery, if you find he was a deputy constable, was conveying said Denton to the office of C. A. Hubbard, a justice of the peace of said Campbell township, to be dealt with according to law, and while so engaged, the deceased, George Mitchell, either alone or acting with others, obstructed, interfered with or resisted in any manner, by his words, or acts, the defendant as such officer in his efforts to convey said prisoner to the office of said justice of the peace, then the defendant had the right, under the law, to use all the force which to him seemed reasonably necessary under the circumstances to overcome all resistance to the exercise of his authority in the premises, even to the extent of taking the life of said Mitchell, and if in'such circumstances he shot and killed Mitchell, he is justified under the law, and you should find him not guilty. ’ ’
“9. In determining, whether or not defendant used more force than was reasonably necessary in shooting Mitchell, the deceased, you are instructed that the law does not require an officer in making an arrest or in conducting the prisoner before the proper officer to be dealt with according to law, when resistance is-offered to the exercise of his authority, to determine with absolute precision what force is necessary to overcome such' resistance, it is only required that he should not use any more force than may seem to him to be reasonably necessary for the purpose.”

It should also be prefaced that in the first part of instruction number 3 the jury were instructed in substance that if the defendant killed the deceased in a heat of passion upon reasonable provocation, or because of defendant’s apprehension of great personal injury from Mitchell, then the law presumed that the-defendant took the life of Mitchell -by reason of such passion and without malice, and the jury could not convict of murder. And in the second part of instruction numbered 3 the court told the jury that if the defendant killed Mitchell in a violent passion, as stated, in the first part of the instruction, and the infliction of the injuries upon Mitchell by the defendant “were not necessary to the self-defense of the defendant, or to discharge his duties as an officer in the premises, as explained in these instructions, you will find the defendant guilty of manslaughter in the fourth degree,” etc.

Prom the foregoing instructions and what has-been stated it is apparent that the State relied upon two separate and distinct theories of the evidence as warranting a verdict of manslaughter in the fourth degree, namely, that the fatal injuries were inflicted by the defendant (1) in a violent passion upon reasonable provocation, but not in necessary self-defense, and (2) though not inflicted in such passion but as an officer resisting an attempt of Mitchell to rescue a pris•oner from the defendant, and that in resisting snch attempt the defendant “unnecessarily took the life of the deceased” by the use of more force than seemed reasonably necessary.

In giving instruction number 4 it is evident that the court sought to present to the jury that phase of the case authorizing a conviction of manslaughter in the fourth degree if the jury should find that, while in the discharge of his official duties as deputy constable, the defendant in resisting an assault made upon him by Mitchell, took the life of Mitchell, and. in so doing used more force than seemed reasonably necessary. The evidence clearly' warranted an instruction submitting the case to the jury upon that theory. In the case of State v. Rose, 142 Mo. 418, a case in many respects similar to the case in hand, Burgess, J., speaking for this court, at page 426, said: “If defendant, without malice, intentionally shot and killed deceased while resisting arrest, and in so doing used no more force or violence than was reasonably necessary to accomplish his arrest, the homicide was justifiable. [2 Bishop, New Crim. Law, secs. 647, 650.] But if he used more force than was reasonably necessary for that purpose, and shot deceased while resisting arrest, he was guilty of manslaughter- in the fourth degree. [R. S. 1889, sec. 3477, supra.]” And in the case of State v. Coleman, 186 Mo. l. c. 160, this court said: “It is equally clear under the facts of this case that it was the duty of defendant as such officer to arrest the deceased, and to use sufficient force to accomplish the arrest and bring the deceased within his control, but if he used more force than was reasonably necessary for that purpose and killed Cos, he was guilty of a criminal offense, its grade depending upon the facts and circumstances in evidence. [State v. Dierberger, 96 Mo. 666; State v. Rose, 142 Mo. 418; State v. Lane, 158 Mo. 572.]” See, also, Kelley’s Crim. Law and Prae., see. 524.

The defendant was given the full benefit of the law upon the right of an officer to use all force rea-' sonably necessary in the lawful exercise of his official duties; even to the taking of Mitchell’s life, by instructions numbered 8 and 9 given on behalf of the defendant. Indeed instruction number 8, in basing the right of the defendant to use such force upon the fact that Mitchell “obstructed, interfered with or resisted in any manner, by his words or acts, the defendant as such officer in his efforts to convey said prisoner, ’ ’ etc., went far beyond the proper limitations of official authority and protection as prescribed by the decisions of this court and the general law upon the subject.

Instruction number 4, of which complaint is made, properly sets forth the facts hypothetically in the converse form of defendant’s instruction number 8, and upon a finding of which facts the jury was directed to return a verdict of manslaughter in the fourth degree. After thus reciting the facts, namely, the defendant’s custody of Denton as a prisoner; the assault of Mitchell upon defendant in an attempt to rescue the prisoner; the resistance of such assault by the defendant in his efforts to retain the prisoner, etc., then instead of submitting a finding of such facts to the jury as a basis from which to determine whether the defendant in so resisting Mitchell used more force than seemed reasonably necessary, and if so that he was guilty of manslaughter in the fourth degree,- the jury was instructed that if “in making such resistance and in his efforts to retain his prisoner, the defendant unnecessarily took the life of the deceased,” they should find him guilty of manslaughter in the fourth degree. Although this instruction, as applicable to the evidence, is not skillfully drawn, it cannot be said that it is inconsistent with instruction number 8 given on behalf of the defendant, and when both instructions are read together they declare the law'upon the subject in terms more favorable than the defendant was entitled to.

In tlie case of State v. Mathews, 98 Mo. 125, this court said: “Instructions are to be read together as a whole, and when consistent, their meaning is to be collected from the whole context, and not from detached instructions or phrases in them, and if, when so treated, their meaning is obvious, the legal principles announced correct, and applicable to the case, they are safe guides for a jury.” And in the case of State v. McKenzie, 177 Mo. at page 715: “It is fundamental that instructions must be construed together. It is apparent that the instructions here complained of are but qualifications of the instructions given at the instance of defendant. The usual and ordinary method, and, we think, the better one, of declaring the law of self-defense, is to incorporate in one instruction the entire subject-matter; but-to separate the declarations of law, as applicable to self-defense, does not constitute error, if, taken together, they form, as a whole, a correct and harmonious announcement of the law on that subject.”

Reading the two instructions in accordance with the rule thus announced, we find in instruction number 4 a direction to the jury that if defendant was in charge of a prisoner and Mitchell assaulted defendant in an attempt to rescue the prisoner and in resisting such assault defendant unnecessarily took the life of Mitchell, he was guilty of manslaughter in the fourth degree. On the other hand the jury were told in instruction number 8 that if the defendant in resisting such assault upon him by Mitchell used no more force than seemed to him to be reasonably necessary,' the killing was justifiable. It must follow that if the killing of Mitchell was necessary in. the exercise of defendant’s duty as an officer, and as defined by instruction number 8, the defendant did not “unnecessarily take the life of the deceased,” and the jury could not have found him guilty under instruction number 4. This is the only meaning which a jury of ordinary intelligence could have given to the instructions when read together. Besides, in instruction numbered 3, submitting the ease upon the theory of manslaughter, if the killing was done in the heat of passion upon reasonable provocation, the guilt of the defendant was predicated upon a finding that “the infliction of such injuries were not necessary to the self-defense of the defendant, or to discharge his duties as an officer in the premises, as explained in these instructions.” The defendant thus had the full benefit of the law declaratory of his rights as an officer in instructions numbered 4 and 8 when read together, and in instruction numbered 3 the attention of the jury was expressly directed to such rights as are set forth in instruction number 8.

For the foregoing reasons we hold that the appellant was not prejudiced in his substantial rights in the giving of instruction number 4.

Counsel for appellant at the oral argument and in their brief earnestly insisted that the verdict is against the evidence, and that under all the evidence the taking of Mitchell’s life was justifiable, (1) on the ground of self-defense, and (2) because the act was done in the discharge of defendant’s official duties and without the use of more force than seemed to him reasonably necessary.

The first of these complaints requires but brief consideration. The uncontradicted evidence shows that Mitchell was unarmed; there were four other police officers standing within a few feet; Mitchell’s interference or assault upon the defendant, if it may be so called, was of such character as to show an entire absence of that peril or danger or apparent danger to the defendant which, under the law, would justify the taking of life on the ground of self-defense.

Neither is there merit in the second contention that the killing was necessary in the discharge of. the defendant’s duty as deputy constable. Giving full force to the principle of law that- “the officer, when making an arrest, may, of course, defend himself, as may any other person who is assaulted; but the law does not stop here; the officer must of necessity be the aggressor; his mission is not accomplished when he wards off the assault; he must press forward and accomplish his object; he is not bound to put off the arrest until a more favorable time” (State v. Dierberger, 96 Mo. l. c. 674); and on the other hand recognizing the limitation which the law places upon the right of the officer in the use of force under such circumstances, namely, “but if he used more force than was reasonably necessary for that purpose, and shot deceased while resisting arrest, he was guilty of manslaughter in the fourth degree” (State v. Rose, 142 Mo. l. c. 427), let us briefly review the facts of this case upon which the defendant must rely to bring his case within the protection of the principle of law invoked.

The defendant was the proprietor of a hotel; he was also a deputy constable. On the morning of the homicide there was a difficulty at the hotel between the defendant’s wife and the wife of Denton, which, in the eyes of the defendant as an officer and proprietor of the hotel, amounted to a breach of the peace; of the two thus engaged in a quarrel the defendant placed Mrs. Denton only under arrest;'when Denton interfered in behalf of his wife, he was also arrested and placed in the custody of another deputy constable to be taken before a magistrate, while the defendant took Mrs. Denton, who in the meantime had become ill, to her room. The defendant did not permit the disinterested deputy to take the prisoner to his destination, but soon followed and overtook them where they had stopped on the street and were talking to a small assemblage of bystanders. While these bystanders were intermeddling and offering advice to the officer and prisoner in the matter which did not concern them, just as such, persons always have done and always will do on such occasions, yet they were good-natured and gave no indication of hostility or violence. The defendant was angry when he came up, and when Allen, the court stenographer, suggested that to he “in the clear” it would be safer to procure a warrant for the arrest of Denton before taking him further, the defendant, without calling upon any- of the bystanders to assist him, as he had a right to do; without calling upon the other four peace officers present to assist him, as it was their duty to do, drew his revolver, cocked it and presenting it at Allen told him he would take him too, although Allen had in no manner refused to submit to arrest or to comply with any command. The weight of the evidence shows that at this juncture when Mitchell seized the weapon with one hand and with the other the defendant, he did so not to injure or assault the defendant, but to prevent the shooting of Allen. The defendant, in the struggle, turned his weapon to Mitchell’s breast and fired the fatal shot. He was immediately disarmed of the revolver, whereupon he drew his club, which was also taken from him after a struggle.

Viewing the defendant’s conduct as connected with this homicide and as disclosed by the testimony of the eye-witnesses, the conclusion is irresistible that he did not move upon Mitchell as an officer in the name of the law, but rather as a man who, besides being an officer, had a private grievance, and, fired with passion, recklessly and needlessly took a human life. To say that the taking of the life of an unarmed man in the presence of five officers of the law in broad daylight, and under the circumstances of this ease, was justifiable on the ground that no more force was used than was reasonably necessary in the discharge of the official duty of . the slayer, is to disclose a misconception of the law applicable in such cases, and to place entirely too low an estimate on the value of human life,

An officer in the discharge of his duty, representing in his person the majesty of the law, is entitled to protection, and the law does protect him while acting as an officer and within the law, bnt he must always remember that the life of a human being is sacred in the eyes of the law; that it is the first and greatest right of a citizen, and that he must not be deprived of it except under circumstances of extreme necessity. Such necessity did not exist in this case.

In appellant’s brief much stress is laid upon the-right of an officer in making an arrest or preventing a. rescue “to use such force as seemed to him (defendant) to be reasonably necessary in the premises to-maintain his authority,” etc.

The force reasonably necessary to be used by the-officer in such cases must be determined from the-surrounding circumstances and conditions as they appear to the officer at the time he is required to act, but. it must not be understood that the defendant is the-final arbiter in such case, and that if the taking of life-seemed necessary to him the question is then foreclosed against further inquiry upon a trial for homicide. In Wharton on Homicide (3 Ed.), section 502r. the law upon this subject is stated as follows: “It has-been held -that the amount of force and the employment of the usual means of making an arrest and detention within the compass of the means ordinarily-resorted to for securing one found committing a criminal act must be left to the discretion and judgment of the officer, where he is engaged in discharging a. public and official duty, and is actuated by no ill-will. But the prevailing rule seems to be that the law does-not clothe an officer with authority to judge arbitrarily of the necessity of killing a prisoner to secure him, or-of killing a person to prevent the rescue of a prisoner,, and that he cannot kill unless there is necessity for it and that whether there is such a necessity is a question of fact for the jury in a prosecution for the killing, to be determined from all' the evidence of the ease, a doubt as to the nonexistence of sucb necessity entitling the officer to an acquittal.”

In tbe case of State v. Lane, 158 Mo. 572, tbis court approved an instruction which declared the law in harmony with the prevailing rule as thus stated by Wharton, and the Lane ease is cited by that author in support of the text above quoted.

We have examined the record before us, not only as to the two errors assigned, but as to the entire proceedings of the trial, and have reached the conclusion that the defendant was accorded a fair trial and that reversible error does not appear in the record. Accordingly the judgment of the trial court is affirmed.

Gantt, P. J., and Burgess, J., concur.


source: Caselaw Access Project

author: GANTT, P. J.

license: Public Domain

text:
    THE STATE v. HARRY WOLF, Appellant.
    Division Two,
    November 29, 1910.
    1. INSTRUCTIONS: Refusing. Defendants. It is not error to refuse instructions asked by defendant if they are fully covered by those given by the court of its own motion. '
    2. GAMING DEVICE: Operated by Defendant for a Club and Its Members. A so-called club let the defendants have the exclusive privilege of operating a crap table and game in the third story of the building, and for doing this they agreed to pay the club’s steward one-half of all winnings and “rake-offs” of the crap tables and games. One of the defendants constantly watched the entrance to the room, while the other was in .charge of the game. Defendants testified that they operated the table and games, but did so for the club and not for themselves, that only regular and honorary members of the club were permitted to play at the games, and that they could not exclude any member so long as he was not boisterous. Held, that .the offense of setting up and keeping a crap table, designed, etc., and enticing and permitting persons to play at games of chance thereon, etc., was established beyond a reasonable doubt, and no demurrer . to the evidence should have been sustained.

      Appeal from St. Louis City Circuit Court — Hon. J. Hugo Grimm, Judge.
    Affirmed.

      Jeptha I). Hoive and Alphonso Hotoe for appellant.
    (1) The indictment in this case is fatally defective, and defendant’s motion to quash should have been sustained. The indictment alleges that defendant, etc., “set up and kept a certain table and gambling device commonly called a crap table, the same being then and on said other days and times there, a gambling device, adapted, devised and designed for the purpose of playing games of chance for money and property, and did then and on said other days and times there unlawfully and feloniously induce, entice and permit certain persons, etc., to bet and play at and upon a game played on and by means of such gambling device,” etc. It appears clearly from the language of the indictment that same only charges that defendant did ‘ ‘ set up and keep a certain table aud gambling device commonly called a crap table,’’and nowhere charges the use of dice or a crap table upon which dice are used, etc. In other words, it merely refers to the crap table, omitting entirely to associate the dice with the game. State v. Mathis, 206 Mo. 604; State v. Rosenblatt, 185 Mo. 115. (2) The court erred in refusing to give the instruction asked for by defendant at the close of the State’s case, and in refusing, when requested by defendant, to direct a verdict then and there in favor of the defendant. This instruction tested the sufficiency of the State’s evidence. The evidence for the State clearly shows that this room and all paraphernalia described therein was the property of the Oxford Club, a corporation, organized under the laws of Missouri; that the table had been there, or set up, as they called it, long prior to the time Wolf had anything to do with it, and that it was set up by this Oxford Club; that Wolf was out of work and they gave him the job, so to speak, or employed him to look after the game, which was not his game; he did not own it. On the contrary, the Oxford Club owned it, maintained it, and it was peculiarly their affair. They simply employed Wolf to look after it, and he did not set it up or maintain it.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    (1) The indictment is sufficient in form and substance, and the court did not err in overruling appellant’s motion to quash same. It follows the approved forms of this court. State v. Lee, 228 Mo. 480; State v. Lockett, 188 Mo. 418; State v. Rosenblatt, 185 Mo. 114; State v. Mathis, 206 Mo. 604; State v. McKee, 212 Mo. 138. The indictment in this case is an exact copy (omitting names of certain parties) of the one approved in ■the Lee case, supra. (2) It is next contended by appellant that the court erred in admitting testimony as to the use of dice in playing the game of cráps. This objection is without any merit whatever. It was competent to show that the game known as craps was played on the table kept by appellant, and that dice were used in playing the same. This objection is fully answered by the reasons given by this court in the case of State v. Hall, 228 Mo. 456.
   GANTT, P. J.

Defendant w;as indicted, together with Frank Margulis, by the grand jury of the city of St. Louis at the February term, 1909', for feloniously setting up and keeping a crap table adapted, devised and designed for the purpose of playing games of chance for money and property and feloniously inducing, enticing and permitting divers persons to bet ■and"play at and upon a game played on and by means of such gambling device, against the peace and dignity of the State.

A severance was granted, and pleas of not guilty entered, and defendant put upon his trial, which resulted in a verdict of guilty as charged, and his punishment assessed at imprisonment in the city jail for six months. Motions for a new trial and in arrest were filed in due time, heard and overruled and the defendant sentenced in accordance' with the verdict. From that sentence he has appealed.

Defendant is not represented in this court by counsel. During the month of October, 1908, there was what was known as the .“Oxford Club,” at No. 920 North 15th street. It appears to have been the resort of professional gamblers. The building was three stories in height. The third floor was used exclusively for crap and card games. During October, 1908, the members of this so-called club let the defendant and Margulis have the exclusive privilege of operating a crap table and game in the third story of this building. For this privilege defendant and Margulis agreed to pay the bartender, who was the club’s steward, one-half of all the winnings and rake-offs of the crap table and games. The entrance to the room was constantly watched by either Margulis or defendant, while the other was in charge of the game..

The door was provided with a signal bell and a button, to give notice of a raid by the officers of the law. The record discloses they did a flourishing business. Indeed, defendant testified that he and Margulis operated the crap table and games, but claimed that they did so for the club and not for themselves and that only regular and honorary members were permitted to play at the game and they could not exclude any member so long as he was not boisterous.

I. The indictment was and is sufficient. [State v. Lee, 128 Mo. 987; State v. Mathis, 206 Mo. 604; State v. Rosenblatt, 185 Mo. 114.]

II. The instructions which the defendant requested and which the court refused were fully covered by those given by the court of its own motion.

III. There is no merit in the point that the evidence did not support the indictment. The offense was established beyond a reasonable doubt. The judgment is affirmed.

Burgess and Kennish, JJ., concur.


author: KENNISH, J.

text:
    THE STATE v. CANDY MARTIN, Appellant.
    Division Two,
    November 29, 1910.
    1. INFORMATION: No Indorsement of Witness: Time to Prepare for Trial: No Request. If no names of witnesses are indorsed on the information, then, upon motion, it should be quashed, unless the prosecuting attorney offers to supply the omission; in which case, the defendant, -if he requests it, should have a reasonable time after such omission has been supplied, to prepare his defense;, but if he makes no such request, and answers ready for trial, his complaint that he was denied a reasonable time will be unavailing.
    2. -: Embezzlement: Intent: Consent of Owner: Amount. . In the statute defining and denouncing the crime of embezzlement by any officer of any benevolent organization (sec. 4556, R. S. 1909), neither the intent of the defendant, nor the absence of the assent of the owner, is made an element of the crime, and therefore an averment in the information as to either is not required.
    3. VEftDICT: General Sufficiency. ' A verdict in an embezzlement case, reading, “We, the jury, find the defendant guilty and assess Ms punishment at two years in the penitentiary. H. S. Newby, Forenon,” is sufficient, if the information or indictment charges hut one offense.
    4. -: Misspelling: “Forenon” for “Foreman.” Neither had spelling nor had grammar will vitiate a verdict if its meaning is clear. The misspelling of the word “foreman” by writing it “forenon” is a harmless error.
    5. MISDEMEANOR: Instruction: Embezzlement: Within Three Years. An instruction authorizing a conviction if the defendant within three years embezzled thirty dollars or more, and directing the fixing of his punishment at imprisonment in the county jail, or by fine, is error, there being evidence upon which the jury might have found a conversion of a sum less than thirty dollars. The felony limitation and the misdemeanor punishment should not be thus embodied in the same instruction.
    6. -: -: -: Harmless Error. But where defendant was convicted of a felony and his punishment fixed at two years in the penitentiary, and there was evidence from which the jury might well have found that he did embezzle money in excess of thirty dollars within three years, the giving of such erroneous instruction is not prejudicial. The error falls within the principle of law that where an offense of different degrees is charged, an erroneous instruction upon a degree lower than that upon which defendant was convicted is not reversible error.
    7. VARIANCE: Charged to be Treasurer: Shown to be Secretary-Treasurer. There is no such variance between the allegations and proof as will authorize a reversal where the information charges that defendant as “treasurer of the local union” embezzled funds of the union, and the proof shows that he was “secretary-treasurer” of the union, the uncontradicted evidence showing that he was in fact the treasurer, and as such received the union’s money.
    8. INSTRUCTIONS: Embezzlement: Positive and Direct Proof. An instruction for the State in an embezzlement case that tells the jury that “it is not necessary that such criminal intent be proved by positive and direct evidence,” is not error, when applicable to the facts.
    9. - -: Weight and Character of > Witnesses: No Proof. An instruction telling the jury that in determining 'the weight, credibility and value to be given to the testimony of any witness, they-might take into consideration the character of the witness, is not error, even though the character of no witness is shown by the evidence.
    10. -: -: Defendant as Witness. An instruction telling the jury that the testimony of “the defendant should be weighed by them by the same rules that govern the testimony of other witnesses,” is not erroneous.
    11. EMBEZZLEMENT: Checks: Indicted for Converting Money. In accordance with the rules of the union certain dues and charges owed by the members to the miners’ union were presented to the coal company monthly by the union’s secretary in what was called the “check-off list.” These charges were deducted from the wages of the members by the coal company, and by it paid to the defendant as treasurer of the union by checks bn a book, and the checks were cashed by defendant and the proceeds placed to his credit in the bank in which he kept his account. He is charged with embezzling money, and the evidence shows that, in this way, he received and deposited $114.19 more than he disbursed or turned over to his successor. Held, that there was no variance between the pleading and proof. He did not embezzle the checks; they were competent evidence to show what he received. If he embezzled anything it was money; and though it was not shown that he withdrew the money from the bank and used it, yet as it is shown that he received a certain amount, and disbursed a less amount for the union, there is evidence to support a conviction of embezzling money.
    12. -: Evidence: Auditor’s Report. The report of a committee of the lodge, appointed to audit defendant’s accounts as treasurer, which showed a balance belonging to the lodge in his hands, and which, on its being read to the lodge, he said was correct, is competent to be used as evidence against him.
    13. DEMURRER TO EVIDENCE: At Close of State’s Case. If defendant, after the court had overruled his demurrer to the evidence, offered at the close of the State’s case, introduced evidence in his own defense, he cannot on appeal challenge the ruling of the court upon the demurrer. A defendant in a civil or criminal case, who offers evidence in defense, after his unsuccessful demurrer to plaintiff’s evidence, takes the -<k». chance of supplying any lack of evidence in plaintiff’s case.
    14. EMBEZZLEMENT: Lodge Funds: Disbursement: Voucher. Although the by-laws of the lodge provided that no funds should be paid out of the treasury except upon vouchers signed by the president, yet if, without such voucher, defendant, as treasurer, paid out money for the lodge in good faith, he is not guilty of embezzlement, for in such case he did not convert the money to his own use.
    Appeal from Randolph. Circuit Court. — Hon. A. H. Waller, Judge.
    Affirmed,

      Kimbrough é Gladney for appellant.
    (1) The court erred in giving instructions 1, 2 and 3 for the State. They submitted a question of fact not shown by the evidence, namely, that the defendant received into his possession money, when the evidence showed that he received checks. State v. Wissing, 187 Mo. 96; State v. Mispagel; 207 Mo. 574; Commonwealth v. Wood, 142 Mass. 4591. (2) The very essence of the offense is the conversion of the property, hence the property must be described as of the form in which it was received and embezzled, and the proof must sustain the averment. Authorities supra. (3) The demurrer to the State’s evidence should have been sustained, for the reason that there was a fatal variance in the allegations of the information and the proof, in this, that defendant was charged with the crime of embezzlement of money as treasurer of local union, when the proof showed the office he held was that of secretary-treasurer. Státe v. Mahan, 138 Mo. 112.

      Elliott W. Major, Attorney-General, and John M. Daiuson, Assistant Attorney-General, for the State.
    (1) During the pendency of the motion the prosecuting attorney obtained leave to indorse on the back of the information the names of the State’s witnesses. When a motion to quash the information is filed after the plea of not guilty is entered of record, the action of the court upon the motion cannot be convicted of error. State v. Jeffries, 210 Mo. 302; Ex parte McLaughlin, 210 Mo. 363. The prosecuting attorney may indorse the names of the State’s witnesses upon the information during the pendency of the motion to quash, by leave of court, and the trial court will not be convicted of error. Authorities supra. (2) Instruction 2 correctly informs the jury that if they should find that the amount embezzled by the defendant was less than thirty dollars they should assess his punishment at a fine or imprisonment in jail. This instruction was correct, as, if the amount embezzled, was less than thirty dollars, the crime would be reduced to that of misdemeanor and punished in accordance with misdemeanor punishments. Instruction 3 told the jury that they must find that the defendant did convert the money to Ms own use with felonious intent to appropriate such money, and that the criminal intent may be inferred from all the facts and circumstances admitted in evidence. This is the usual and approved instruction. State v. Nolan, 111 Mo.' 473; State v. Lipscomb, 160' Mo. 136; State v. Manley, 107 Mo. 364. (3) The verdict is certain, definite and complete. State v. Baldwin, 214 Mo. 290.
   KENNISH, J.

On the 26th day of June, 1909, at the June term of the circuit court of Randolph county, the prosecuting attorney filed in open court an information charging the defendant, Candy Martin, with the crime of embezzlement. The information is based upon section 4556 of the Revised Statutes of 1909, and in substance charges that the defendant while acting as treasurer of Local Union No. 149 of the United Mine Workers of America, a trade organization, on the 1st day of May, 1908, at said county and State, fraudulently and feloniously embezzled the sum of $114.19, the money and property of said local union.

At the October term, 1909, of said court, the defendant filed a motion to quash the information. This motion was overruled by the court and at the same term the defendant was put upon his trial, convicted and his punishment assessed at imprisonment in the pemtentiarv for a term of two years. Motions for new trial and in arrest were filed in due time, overruled, and judgment pronounced in accordance with the verdict. The defendant appealed from the judgment to this court.

At the trial the evidence for the State tended to prove the following facts:

The United Mine Workers of America is an unincorporated trade organization of coal miners, having for its object the making of agreements as to the wages of laborers and the general well-being of its members in all matters connected with their employment. The organization has national, district and local unions and officers. There was a local union at Moberly in said county known as “Local Union No. 149', Mine Workers of America.” The defendant was elected to the office of secretary-treasurer of said local union and assumed the duties of the office in the month of January, 1907. He served as such officer continuously until the first day of May, 1908.

It was provided in the by-laws of the local union, which were introduced in evidence, that the secretary-treasurer should have charge of all moneys belonging to the local union and pay all bills and current expenses when attested by the president. It was also made his duty to collect all money due the union, keep an account of the same and make monthly reports of the money received. It was the duty of the financial secretary of the local union to make out what was called a “check-off list” at the close of each month, showing the dues and charges which each member owed to the union. This list, in accordance with an understanding between the union and the coal company for which the miners were working, was furnished to the treasurer of the coal company each month and he deducted from the wages paid to each member the amount charged against him in the check-off list. The amounts so deducted were then included in one check by the treasurer of the coal company in favor of the local union. This check was delivered to the treasurer of the union and by him cashed and the money deposited to his credit as such treasurer in a local bank.

In the month of November, 1907, the books of the defendant as treasurer were audited by a committee of tbe local union. Tbis audit covered tbe period from tbe beginning of tbe defendant’s term to tbe 1st day of November, 1907, and showed a balance of tbe funds of tbe union and supposed to bave been in tbe treasury on tbe last mentioned date, in tbe sum of $52.24. Tbe evidence shows that tbe defendant was present when tbe report of tbe committee was made and admitted its correctness, except that be said be lacked twenty cents of having that much money. He made no claim at that time that bis disbursements as treasurer exceeded bis receipts.

When,tbe defendant went out of office on May 1, 1908, be left no funds in tbe treasury. A committee of tbe union again audited tbe books of tbe defendant about tbe time be went out of office and at first found a shortage in tbe amount of $60.09, but afterwards informed tbe defendant that tbe correct sum of tbe shortage was $164. Tbis report, although referred to by tbe witness, was not introduced in evidence. Tbe defendant was dissatisfied with the result of tbe committee’s investigations and requested George Manuel, an officer of tbe district organization of tbe United Mine Workers of America, to examine and audit bis books as treasurer of tbe local union. Tbis officer, in tbe presence of tbe defendant, made a complete audit and accounting from tbe 1st of November, 1907, until May 1, 1908, and found that defendant should bave bad, at tbe close of bis term as treasurer, tbe sum of $114.19 of tbe funds of tbe union.

The theory of the prosecution was that tbe offense charged against tbe defendant was committed between the 1st day of November, 1907, and tbe 1st day of May, 1908, covering a period of six months. Tbe State introduced in evidence tbe checks made payable to tbe union and received by tbe defendant as treasurer during tbe six months covered by tbe State’s case. These checks were cashed by tbe defendant and tbe proceeds thereof deposited to his credit as treasurer of the union. The vouchers authorizing the disbursement of the funds by the defendant for the same period, were also introduced in evidence. It was shown by the testimony of witness Manuel, who examined the defendant’s books at his request, that the total amount thus shown to have been received by the defendant for the said six months ’ period, including a small cash item, was $782.84-. The amount disbursed during the same period, as shown by the vouchers in evidence, was $550.18, leaving a balance to the credit of the union of $232.66. At the time of the investigation by witness Manuel it was contended by the defendant that payments had been made by him as treasurer for which he had received neither voucher nor receipt, and the district officer, Manuel, gave defendant credit for such items in the total sum of $66.23. The defendant also disputed the item of $52.24, which the first auditing committee found to be due to the union on November 1, 1907, and a credit was also allowed him for that sum. After allowing defendant the foregoing credits there should have remained $114.19 of the funds of the union which the defendant should have had on hand at the close of his official term. When he went out of office he left no money in the treasury. He afterwards acknowledged having in his possession as funds of the union, the sum of 57 cents, which he paid to his successor.

The defendant was a witness in his own behalf and denied the conversion of any part of the funds of the union and testified fully as to his account and all of his transactions as treasurer of the union from the beginning to the end of his term. According to his testimony he paid out of his funds to members who had been over-1 charged in the check-off list and in various other ways, a total sum which, added to that shown by the vouchers, exceeded the total amount of his receipts during the term of office. The evidence disclosed the fact that the defendant was not an educated man, and there was evidence tending to corroborate him as to the payment of money for the union without a voucher authorizing him so to do and without taking a receipt therefor.

Other facts in evidence will be referred to in the course of the opinion.'

I. Appellant challenges the sufficiency of the information first by motion to quash and again by motion in arrest of judgment. The motion to quash attacks the information upon the ground that the names of the material witnesses for the State were not indorsed thereon. There is also a second ground, but as it merely states a reason in support of the first, it need not be separately considered.

It is shown by the record that while the motion was pending and undetermined, the prosecuting attorney, by leave of court, indorsed upon the information the names of the witnesses for the State, and that thereupon the court overruled the motion, to all of which defendant objected and saved his exceptions.

The statute requiring the indorsement of the names of the material witnesses for the State upon an indictment or information and the rights of the accused thereunder have been the subject of frequent consideration by this court. In the case of State v. Barrington, 198 Mo. 23, in an able opinion of this division, written by the late Judge Pox, and thereafter adopted as the opinion of the Court In Banc, the authorities were reviewed- and the subject exhaustively treated and certain rules were formulated, the first of which fully covers the facts of the case in hand. At page 70 of that opinion this court said: “Prom these cases the correct rules as to the application of this statute may thus be stated: First — If there are no witnesses indorsed upon the indictment, then, upon motion, it should be quashed, unless the prosecuting attorney offers to supply such omission, then the defendant should have a reasonable time after such omission has been supplied to prepare his defense.”

No evidence was offered in support of the motion to quash and it is not disclosed by the record whether the court permitted the indorsement of the names of additional witnesses for the State, or whether as stated in the motion there was “not the name of any witness” indorsed upon the information at the time of the filing •of the motion to quash, and that the prosecuting attorney under the ruling of the court indorsed the names •of all the material witnesses. In the absence of any evidence in the record to the contrary we shall assume that the statement in the motion to quash is correct. The case then falls within the first rule as laid down by this court in the Barrington case.

Appellant correctly states that the purpose of this statute is to inform the accused of the witnesses upon whose testimony the State will rely for a conviction and thus to enable him to prepare for his defense at the trial, and appellant complains that the action, of the court in permitting the indorsement of the names of the witnesses on the information' and immediately thereafter placing defendant upon his trial, deprived him of the very right the statute was enacted to secure.

Under the rule announced in the Barrington case the court was clearly right in permitting the indorsement of the names of the witnesses for the State and then overruling the motion to quash, but that rule also recognizes and gives full force to the benign purpose of the statute by providing' that when such indorsement is permitted and the motion to quash overruled, the defendant shall then be entitled to a reasonable time to prepare for trial. The record in this case fails to show that the defendant requested that he be given further time. On the contrary, it does show that he announced ready for trial, and having so announced he cannot now be heard to complain that he was denied reasonable time to prepare for his defense after the names of the witnesses against him were disclosed by the prosecuting attorney.

II. The motion in arrest of judgment attacks the information upon four grounds, which are in substance as follows: First, the information does not charge that the defendant made way with and secreted such money with the intent to convert the same to his own use. Second, the information does not charge that defendant, after receiving said money as treasurer of said union, secreted the same and converted it to his own use with the intent to deprive the said local union of said money. Third, the information does not charge that the defendant converted said money to his own use without the knowledge and consent of said local' union. The fourth ground is included in those preceding.

> In some kindred statutes to that on which this prosecution is based the intent is made a constituent element of the offense and in others the criminality is made to depend upon the conversion being made-£<without the assent of the master or employer.” In all of such cases it is necessary to expressly aver the intent, or negative the knowledge or assent of the owner, in order to state a valid charge of the offense defined by the Statute. But in the statute under consideration neither the intent of the defendant nor the. absence of the assent of the owner is made an element of the crime, and therefore an averment as to either is not required.

In the case of State v. Noland, 111 Mo. 173, discussing the section of the statute under consideration, Gantt, J., speaking for this court, said: £ £ The indictment in each of the several counts charges that the public moneys belonging to the State of Missouri by him received, and taken into his possession and custody, by virtue of his said office, for safekeeping, transfer and disbursement, at the county and State aforesaid, and on the days named,‘did unlawfully, fraudulently and feloniously convert to his own use, and embezzle,’ closing with the usual conclusion, as in grand larceny. Section 3555 does not in specific words make the criminal intent an element in the offense further than is necessarily included in the words, ‘ converted to-his own use, ’ or ‘ shall make way with or secrete, ’ and it has generally been ruled under similar statutes that an indictment substantially charging the crime in the terms of the statute is sufficient. ’ ’

And in the more recent ease of State v. Sakowski, 191 Mo. 635, having before it the sufficiency of an indictment under a kindred statute, this court said: “ The-offense is purely a statutory one, and the General Assembly in defining it has not made it a constituent element of the crime that the receiver should receive the-same with intent to deprive the.owner thereof. This-section has been before this court for construction, quite recently in the case of State v. Richmond, 186 Mo. 71. And the indictment in that case was assailed on the same ground upon which this indictment is challenged and it was said: ‘By its terms, receiving the stolen property makes the case. ’ In the absence of a statutory provision that the defendant received the goods with intent to deprive the owner thereof or to-aid the thief, no such averment is necessary or essential in an indictment or information for this offense.’”

III. The verdict of the jury is as follows: ‘‘We, the jury, find the defendant guilty and assess his punishment at two years in the penitentiary. H. S. Newby, Forenon.” Appellant assails the verdict as insufficient to support the judgment upon two grounds.. First, because it fails to find the defendant guilty as charged in the indictment; second, “because the verdict was signed by H. S. Newby as ‘forenon,’ instead of ‘foreman,’ as required by law.”

We have considered tbe questions thus presented and bold that they are without merit. The rule of law applicable to the question raised in the first ground is that in cases where the- indictment or information charges but one offense a general verdict in form as the verdict in this case, is sufficient. [State v. Stark, 202 Mo. 210; State v. Elvins, 101 Mo. 243; State v. Steptoe, 65 Mo. 640.]

The misspelling of the word “foreman” is such a technical inaccuracy as not to require extended consideration. It is the settled law that “neither bad spelling nor bad grammar will vitiate a verdict when its meaning is clear.” [12 Cyc. 689.] In the case of State v. McNamara, 100 Mo. 100, discussing an alleged error because of the misspelling of the word “penitentiary” in the verdict, this court held the mistake harmless, saying, “no one could for a moment mistake the meaning.” [State v. Beverly, 201 Mo. 550; State v. Steptoe, 65 Mo. 640; Duncan v. Oliphant, 59 Mo. App. 1; Gurley v. O’Dwver, 61 Mo. App. 348; 22 Ency. Pl. and Prac. 898.]

IV. Appellant complains of error in the giving of instruction numbered 2 on behalf of the State, and this assignment presents a question not at all free from difficulty. The instruction is as follows:

“The court instructs the jury that if they believe from the evidence beyond a reasonable doubt that the defendant did, within three years from and before the date of the filing of the information, to-wit, the 26th day of June, 1909, receive into his possession the money mentioned in the information, or any portion thereof to the value of less than thirty dollars, and that he received the same into his possession as treasurer of said Local Union No. 149, United Mine Workers of America, and by virtue of his official position as such treasurer, and that he did, within three years prior to the.filing of the information in this case, at the county of Randolph, in the State of Missouri, unlawfully, fraudulently and feloniously embezzle ánd convert the same to his own use, they will find the defendant guilty of embezzlement as charged in the information, and assess his punishment at imprisonment in the county jail not exceeding one year or by fine not exceeding one hundred dollars, or by both such fine and imprisonment.”

The statute upon which this prosecution is based fixes the penalty for its violation as prescribed “for stealing property of the kind or the value of the article so embezzled, converted, taken or secreted.” The offense, therefore, under the facts of this case, was a felony or a misdemeanor, accordingly as the money embezzled should have been found by the jury to have been of the value of $30 or over, or of less than that' value.

A prosecution for a misdemeanor is barred by the-Statute of Limitations in one year from the time of the commission of the offense, while in the case of a felony of this class under consideration, the limitation is three years.

The information in this case charged the defendant with the embezzlement of $114.19 of the value of $114.19, and therefore charged a felony, but under the law this charge included the lesser grade of the offense, a misdemeanor, and authorized a conviction-therefor if the evidence at the trial disclosed an embezzlement of money of the value of less than $30'. The-evidence for the State tended to prove the felony as charged. For the defense the evidence tended to prove • that the defendant was innocent of the conversion of any part of the funds held by him as treasurer of the-union, and there was evidence from which the jury might have found a conversion of such funds in a sum- and value of less than $30. The court evidently regarded the evidence as warranting the submission of the ease to the jury under instructions authorizing a conviction of the felony or of the misdemeanor, or a verdict of not guilty, as they might find the facts from the evidence before them.

It is apparent that if the evidence justified the submission of the case to the jury on the hypothesis of the value of the money embezzled being less than $30, then the limitation of one year applicable in misdemeanor cases should have been incorporated in that instruction. On the contrary, as appellant complains, the ■court gave the felony limitation in the misdemeanor instruction, and thus invited a conviction for the mis■demeanor by authorizing the jury to find the criminating facts within a period of three years, during two years of which time the defendant, under the law, was ^entitled to full and complete immunity from prosecution, even though the facts stood confessed.

From the foregoing it follows that the court was in error in giving instruction number 2. The question remains, was such error prejudicial to the defendant? If not prejudicial, then it will not entitle appellant to a reversal of the judgment.

Recognizing and giving full force to the principle ■of law that error is presumptively prejudicial, we are confronted in this case with the fact that the jury found the defendant guilty of a felony and thus necessarily found the money embezzled to have been of the value of $30 or over'. Having found the facts in accordance with the testimony for the State, how could instruction, number 2, predicated upon a value of less than $30', have prejudiced the defendant? The error in the instruction consists solely in the erroneous application of the Statute of Limitations and had no bearing or influence as to the true value of the property charged to have been embezzled. The result would have been the same had instruction number 2 correctly authorized a conviction only in case the offense was committed within one year prior to the filing of the information. If the defendant had been convicted of the misdemeanor instead of the felony a very different question would now be before this court, for in that case it would have appeared that the defendant had been convicted of the offense as defined in the erroneous instruction. As the matter thus stands the error falls within the principle of law that where an offense of different degrees is charged an erroneous instruction upon a degree lower than that upon which the defendant was convicted, is not reversible error.

In the case of State v. Smith, 80 Mo. 516, the defendant was convicted of an assault with intent to commit rape. The court had given an instruction, among others, authorizing a conviction of common assault, and upon appeal it was urged that' the instruction was erroneous. Addressing itself to that contention this court said: “And as to the second instruction, given at the instance of the prosecuting attorney, which would have sanctioned a verdict of the jury for a common assault, it is scarcely necessary to say that as the jury have found the defendant guilty óf a higher offense, such an instruction could have worked him' no hurt. ’ ’

We are aware that there are well recognized exceptions to the rule thus announced, but the case at bar does not fall'within such exceptions.

For the foregoing reasons, although there was manifest error in instruction number 2, we are constrained to hold, under the statute, that it was not such error as tended “to the prejudice of the substantial rights of the defendant upon the merits.”

Y. The defendant is described in the information as ‘ ‘ treasurer of tjie local union, ’ ’ and it is charged that as such officer he embezzled the funds of the union. In the by-laws of the local organization offered in evidence, the office held by the defendant is described as “Secretary-Treasurer.” The defendant at the trial objected to any evidence as to the duties of the secretary-treasurer, and now alleges error in the first instruction for the State, for the reason that the by-laws offered in evidence fail to show such an office as that of treasurer of the union.

The fact that the full designation of the office is secretary-treasurer wquld indicate that the defendant discharged the duties of secretary as well as the duties of treasurer. ITe was proceeded against in the information because of his alleged criminal misconduct as treasurer. The uncontradicted evidence ' showed that he was in fact the treasurer of the union, and if there was a variance between the information and the evidence as to the official title of the defendant, it was not such a variance as was material to the nierits of the case and prejudicial to the rights of the defendant, and therefore falls within the provisions of section 5114, Revised Statutes of 1909', and “shall not be deemed grounds for an acquittal of the defendant.”

VI. Error is also assigned in the giving of each of instructions numbered 3, 4 and 5 on behalf of the State. Instruction number 3 was assailed because the court instructed the jury that “ it is not necessary that such criminal intent be proved by positive and direct evidence,” and instruction number 4 is complained of because in it the jury were told that in determining the' credibility, weight and value to be given the testimony of any witness they might take into consideration the character of the witness “when in fact the character of no witness whomsoever was shown by the evidence, ” and complaint is made of instruction number 5 because the court instructed the jury that “the testimony of the defendant should be weighed by them by the same rules that govern the testimony of other witnesses.”

These instructions are such as are commonly given in a criminal ease, when applicable to the facts in evideuce, as they are in this case, and are in form as approved by this court. [State v. Merkel, 189 Mo. 315 ; State v. Hilsabeck, 132 Mo. 358; State v. Cushenberry, 157 Mo. 188.]

VII. It was shown in evidence that in accordance with the rules of the union certain dues and charges owed by the members of the union were presented to the coal company monthly by the secretary of the union in what was called a ‘ ‘ check-off list. ’ ’ These charges were deducted from the wages of the members by the coal company and paid to the defendant as treasurer of the union by checks on a local bank. The checks were cashed by the defendant and the proceeds placed to his credit in the bank in which he kept his account, Upon this state of facts it is insisted by appellant that there was a variance between the averment in the information of the embezzlement of the money, and the proof showing the receipt of checks by the defendant from the coal company. The defendant objected to the evidence thus offered on the ground of a variance and again presented his contention in defendant’s instruction number 5, which the court refused. He complains of error in such refusal.

We do not deem it necessary to set out the instruction requested by the defendant. The evidence offered by the State fully supported the charge of the unlawful conversion of the money. There was no evidence tending to prove a conversion of the checks. In receiving and cashing the checks and in depositing the proceeds to his credit in the bank as treasurer of the union the defendant was guilty of no wrongdoing, but was acting in accordance with his duties as treasurer. The conversion and embezzlement, if any, was of the money placed to the credit of the defendant,.and while in his care and custody in the bank. The checks were not embezzled. They were cashed by the defendant and returned to the makers thereof as was contemplated by the parties to the transactions.

The authorities cited by appellant upon this point do not lend support to his contention. In the case of State v. Mispagel, 207 Mo. 557, it appeared from the evidence that the defendant was the cashier of the St. Charles Savings Bank, located in the city of St. Charles, in St. Charles county; that as such cashier he drew a draft in the usual form in favor of the Orthwein Investment Company for one thousand dollars and drawn on the American Exchange Bank of St. Louis. The St. Charles Savings Bank had an account with the bank upon which the draft was drawn by the defendant. The defendant sent this draft to the Orthwein Investment Company of St. Louis, which company collected the proceeds and placed the same to the credit of the defendant on his 'individual account. The defendant was charged in St. Charles county with the embezzlement of one thousand dollars, the money of the St. Charles Savings Bank; he was convicted and on an appeal this court held the evidence insufficient to support the judgment, not, as appellant contends in this case, for the reason that the information should have charged the embezzlement of a draft instead of the money, but because the venue of the conversion and embezzlement was in the city of St. Louis, where the funds were transferred from the account of the St. Charles bank and placed to the credit of the defendant, in accordance with his directions. In passing upon the Mispagel case this court cited with approval the case» of State v. Bacon, 170' Mo. 161, the facts of which as to the point now in hand were almost identical. In the Bacon case the defendant had been given a pension check in Douglas county by the owner thereof with authority to collect the amount of money due thereon in Wright county. Bacon collected the money in Wright county as directed and converted the same to his own use. He was tried in Douglas county on the charge of embezzling the cheeks and was acquitted. He was thereafter tried in Wright county upon the charge of embezzling money collected on the check and was convicted and appealed to this court. In an opinion by Judge Burgess this court held that the offense was committed in Wright county by the conversion of the money and affirmed the judgment. That case is directly in point and is authority against appellant’s position in this case.

VIII. Many objections were made and exceptions saved to the evidence introduced by the State, some of which have been sufficiently answered by what has been said in passing upon the instructions.

It should be observed that because of the confused and imperfect condition of the record it is difficult to pass intelligently upon the questions presented as to the admissibility of the testimony objected to. The bill of exceptions calls for the insertion of exhibits and documentary evidence, which the clerk failed to incorporate, and we are left in the dark as to the character of such omitted testimony.

The witnesses speak of the reports of two separate auditing committees, each of which committees audited the defendant’s account with the union, one covering defendant’s official term from the beginning to November 1, 1907, and the other covering the remaining six months of his' term of office. The first report was made in open lodge in the presence of the defendant, and the evidence shows that he expressly approved it, except, as he said at the time, that he lacked 20 cents of having as much money on hand as the report showed. While this report does not appear in the record, frequent references are made thereto by the witnesses, and testimony was introduced showing the amount which the report of the committee found should have been in the defendant’s hands as funds of the union. As the defendant gave his assent to this report at the time, it was competent to be used in evidence against him. Besides, as the defendant was given full credit at the trial for the item of $52.24, the amount supposed to have been on hands as shown by the report of the first committee, the defendant could not have been prejudiced by such evidence. The record fails to disclose that the report of the second committee covering the last six months of the defendant’s term was introduced in evidence.

It is finally insisted that the court erred in not giving the instruction in the nature of a demurrer to the evidence, directing an acquittal of the defendant at the close of the evidence for the State. After the court had refused defendant’s instruction, evidence was offered by the defendant upon his defense, and therefore he cannot now properly challenge the ruling of the court in refusing to give said instruction. The rule upon this subject is the same in criminal as in civil cases, viz., that when a defendant, after an unsuccessful demurrer to the plaintiff’s evidence, offers evidence upon his defense, he takes the chance of supplying any lack of evidence in the plaintiff’s case. [State v. Meagher, 49 Mo. App. 571.]

But as one of the grounds of the motion for a new trial is that the verdict is against the evidence, .the question as to the sufficiency of the evidence, upon a review of the entire record, is thus fairly presented for our consideration.

The substance of the evidence is set out in the statement of facts accompanying this opinion. It is not necessary to repeat it here. Briefly, the salient facts proved in support of the charge against the defendant are the following: There were practically no funds in the treasury when the defendant assumed the duties of his office and he was charged with none. The funds he received as treasurer were paid to him by check and these checks were offered in evidence, so that there is little room for uncertainty as to the amount of trust funds which came into defendant’s hands as treasurer of the local union. The doubt, if any, arises as to the amount disbursed by him in the discharge of the obligations of the union. The by-laws provided that no money should be paid out of the treasury except upon vouchers signed by the president and if this requirement had been complied with no uncertainty would have existed as to the defendant’s accounts. The defendant testified that this by-law was not strictly adhered to and that many claims were paid by him without authority of a voucher, and in this he is corroborated by other witnesses. Indeed, the representatives of the union in auditing the defendant’s books allowed liberal credits for such unauthorized payments. The contest at the trial was waged mainly as to the amount of trust funds paid by the defendant, for which he had neither voucher nor receipt. If in fact he did pay out money for the union in good faith, it is immaterial in this case that he did so without proper authority. For if he paid it for the union he could not have converted it to his own use. Upon this issue defendant attempted to meet the evidence for the State, and went into his official transactions thoroughly during the entire term of his office as treasurer. The jury heard the defendant ’s testimony and that of his witnesses, as well as the witnesses for the State, and while there is much in this record that is unusual and unsatisfactory in passing upon the question of the sufficiency of the evidence, yet we cannot say as a matter of law that there was not evidence authorizing the verdict of the jury, and it is not the province of this court to weigh the evidence.

Finding no reversible error in-the record the judgment is affirmed.

Gantt, P. J., and Burgess, J., concur.


text:
    THE STATE v. ROBERT GROCE, Appellant.
    Division Two,
    November 29, 1910.
    1. INFORMATION: Two Counts: Convicted Under One Only. Where there are two counts in the information, and defendant was convicted under the second only, he is held to have been acquitted under the first, and therefore on his appeal the sufficiency of the first count is not for review.
    2. REMARKS OF COUNSEL: No Exception. If the bill of exceptions does not show that objections were made and exceptions saved to the remarks of counsel for the State at the time they were made, an assignment that they were improper and prejudicial cannot be considered on appeal, although made a ground in the motion for a new trial.
    3. JUROR: Qualification Determined by Trial Court. Where a juror qualified on his voir dire without objection, and the trial court heard the evidence pro and con on the question of his disqualification, and overruled the motion for a new trial, the Supreme Court will not on appeal disturb the trial court’s finding on a question of fact depending largely, if not entirely, upon the credibility of witnesses.
    Appeal from Howell Circuit Court.— Hon. W. N. Evans, Judge.
    Affirmed.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) The information is valid and sufficient. The first count was drawn under sec. 1847, R. S. 1899, and the second count under sec. 1848, R. S. 1899. The jury found the appellant guilty under the second count; therefore the first count is not before the court for consideration or review. State v. Hendrickson, 165 Mo. 265; State v. Bond, 191 Mo. 568; State v. Havens, 95 Mo. 167; State v. Munson, 76 Mo. 109. (2) The appellant objected and saved his esceptions to the evidence of the deputy sheriff, that he arrested the appellant in Brookfield, Missouri, and that appellant was living under the assumed name of Robert Lee at the time. This was competent evidence. State v. Mayfoo, 110 Mo. 114; 22 Am. and Eng. Ency. Law,'pp. 1264, 1265; State v. Knowles, 185 Mo. 175. Furthermore, the record shows that it was admitted that appellant fled and was located at Brookfield, Missouri. (3) Ollie Turner was introduced as a witness on the part of the appellant, and after having testified that she knew and corresponded with appellant while he was in West Plains and Brookfield, she was asked if she received a letter from him in regard to his intention to return to West Plains. (4) Appellant did not object or save any exceptions to any statements made by counsel in his argument as shown by the bill of exceptions. The bill of exceptions does not show that any objections or exceptions were made at the time. Therefore, the argument of counsel for the State in this case cannot be reviewed or considered by this court. State v. McMullen, 170 Mo. 632; State v. Sublet, 191 Mo. 174. It further appears in the bill of exceptions that the trial court reprimanded and rebuked the attorneys for the State for making improper remarks before the jury in their argument. (5) The appellant, in his motion for new trial, alleges that one of the jurors, Mr. Wood, was biased and prejudiced against the appellant. Before he was summoned as a talesman upon the jury, he was sitting in the court room talking to one Walter Strode, saying to him, “Any man that would jump his bond wouldn’t have his confidence;” he should suffer, or something like that. No bias, ill-will, hate, prejudice, opinion, formed or expressed by the juror Wood, is shown to exist. No objection was made to the juror upon his voir dire, and no error was committed by the trial court in refusing to set aside the verdict upon this ground. State v. Myers, 198 Mo. 247; State v. Bobbitt, 215 Mo. 1. c. 44. Further, the evidence produced upon the motion for new trial conclusively shows that the juror Wood was a qualified juror, and had no opinion as to appellant’s guilt or innocence, and was neither biased nor prejudiced against him.
   GANTT, P. J.

This prosecution originated in ITowell county, by the filing of an information in the circuit court, by the prosecuting attorney, in two counts. The first count charged an assault with intent to murder, under section 1847, Revised Statutes 1899', and the second count an offense under section 1848, Revised Statutes 1899. , The defendant was convicted under the second count and appeals.

The information charged that the defendant, on the 23d day of August, 1909', at the county of Howell, did .then and there willfully and feloniously make an assault upon one Harvey Redburn and then and there did feloniously strike him, the said Redburn, with a whip handle loaded with some hard substance in the end thereof, a deadly and dangerous weapon, whereby said Redburn was maimed, wounded and ill-treated and received great bodily harm, likely to produce death.

The testimony established that the prosecuting witness, Redburn, and one Rhodes were partners in a restaurant, on August 23,1909, in West Plains, Howell county. It appears that some two or three evenings before the 23d of August, the defendant brought a chicken to this restaurant to have it cooked, saying that he had stolen'it from a woman named Hayden. The proprietors of the restaurant refused to have it cooked and the defendant turned the chicken loose in the yard in the rear of the restaurant. • The defendant returned to the restaurant that evening, and said to Redburn, “You stole that chicken,” and Redburn denied it, whereupon defendant cursed Redburn and called him a liar. A wordy altercation ensued. Red-burn being behind the counter and defendant in front opposite Redburn, defendant struck Redburn with the loaded butt end of a whip and felled him to the floor, and attempted to follow up the assault; when he was prevented by Redburn’s father and partner. Redburn had on his hat at the time and the blow broke a hole in it. The hat with the hole in it was introduced in evidence. Redburn was rendered unconscious for a time by the blow on the head.

Dr. Shuttee dressed the wound. He testified the wound was a scalp wound an inch or inch and a half long, cut through the scalp, and was caused by some blunt instrument. A whip handle like the one shown him would cause such a wound. He did not regard it as serious when he examined it.

The evidence further tended to prove that prior to going to the restaurant the night of the difficulty, defendant' was talking to one Farr, and, as he left him, said, “I will just go and raise a little hell.”

After the assault, defendant left Howell county, and went to Brookfield, Linn county, in the northern portion of the State and passed under the assumed name of Robert See, and was bearing the name when arrested in Brookfield.

He testified that he had been in the penitentiary once. Defendant in his own behalf testified he struck Redburn because the latter was attempting to get a billiard cue and because there was a revolver near where Redburn was and he struck him to prevent his getting the billiard cue or revolver.

The cause was submitted to the jury on instructions to which no objections were made at the time and of which no complaint is made in the motion for new trial.

I. In the absence of any brief for the defendant, we have been compelled to resort to the motions for new trial and in arrest to ascertain what errors defendant claimed were committed against him. The second count of the information was sufficient. The defendant having been acquitted on the first, it is not for review. The arraignment and verdict are in due and regular form.

II. The objections to the evidence were without merit. The rulings were in accord with the law governing the relevancy, and admission and rejection of testimony. No good purpose can be subserved by reproducing each item of the evidence admitted and rejected, for the reason that the ruling of the court was obviously correct.

III. The remarks of counsel for the state were made a ground for new trial, but the bill of exceptions does not show that any objections were made at the time or any exceptions saved, and therefore they can not be considered on this appeal. [State v. McMullin, 170 Mo. 632; State v. Sublett, 191 Mo. 174]

IY. The juror Wood qualified on his voir dire and no objection was made to him and on the hearing of the motion for new trial the circuit court heard the evidence pro and con as to his alleged disqualification and we see no reason for disturbing its finding on a question of fact depending largely, if not entirely, upon the credibility of the witnesses.

There are some other questions mooted 'in the motion for new trial which we have examined and considered, but they do not substantially affect the judgment.

The judgment is affirmed.

Burgess and Kennish, JJ., concur.