author: WILLIAMS, J.

text:
    THE STATE v. ELVA DUGGINS, Appellant.
    Division Two,
    December 1, 1920.
    CARRYING CONCEALED WEAPONS: Insufficient Evidence. Tbe very gravamen of the charge of carrying concealed weapons is the concealment of the weapon; and if there is no evidence that defendant was carrying a pistol concealed on the star-lit night he and another were riding along a road and some shots were fired, even if the evidence is sufficient to support an inference that they were fired by them, a verdict of guilty cannot stand. ,
    Appeal from Ozark Circuit Court. — Son. Fred Stewart, Judge.
    Reversed;

      Moore, Barnett S Moore for appellant.

      Frank W. McAllister, Attorney-General, and S. P. Ragland, Assistant Attorney-General, for respondent.
    (1) The verdict is sufficient. If finds the defendant guilty as charged in the indictment and assesses his punishment at a fine of $100. A general verdict finding the defendant guilty as charged in the indictment, when not duplicitous is good. State v. Jackson, 222 S. W. 748; State v. Richardson, 248 Mo. 575. (2) Assignment that the verdict is ‘ ‘ against the evidence and the greater weight of the evidence” is too indefinite to obtain consideration by this court. State v. Oran Mann, 217 S. W. 69; State v. Jackson, 222 S. W. 748; Section 1841, R. S. 1909. (3) It is not necessary that the evidence conclusively show that the weapon was concealed about the person of the accused. State v. Conley, 217 S. W. 29. (4) While there is no direct evidence that the appellant was carrying the weapon concealed, yet there is sufficent circumstantial evidence to support the charge in the indictment and the jury so found. The verdict of the jury should not be disturbed on appeal. State v. Toohey, 203 Mo. 678; State v. Arnett, 210 S. W. 83; State v. Underwood, 263 Mo. 677; State v. Jackson, 222 S. W. 748; State v. Barton, 209 S. W. 888.
   WILLIAMS, J.

Upon an indictment charging him with the crime of carrying concealed weapons, defendant was tried in the Circuit Court of-Ozark County, found guilty and his punishment was assessed at a fine of one hundred dollars. Defendant has duly perfected an appeal.

The evidence upon the part of the State was substantially as follows:

On the night of August 2, 1917, Sam Tannehill, in company with a lady, were returning home from a protracted meeting then being held in the vicinity of Dugginsville, Missouri. On the road they overtook two boys riding horseback. Mr. Tannehill testified that he could not swear positively who these two boys were, but to the best of his knowledge one of them was the appellant and the other was Mike Bond. It was a “starlight night.” Appellant was riding on the left-hand side of the road and the other boy on the right-hand side. The witness started to drive around them and as he got even with them a pistol was fired twice; The two horseback riders then trotted on down the road ahead of the witness, and immediately thereafter witness heard three more shots, thirty or forty yards ahead.- The witness thought that one of the boys fired these shots, but did not see which one it was. He also testified that he did not see any pistol and did not know of anyone having a pistol that night.

Mr. Copeland testified that he was on the road returning from church that night and heard two shots fired back of him along the road. He then heard the horses trot and after they had advanced thirty yards three more shots were fired. The witness could see the flash from the pistol, and it looked as though the pistol was being fired by the man riding the horse on the left-hand side of the road. As the two riders passed him he was able to identify them for the first time. He states that appellant was riding on the left-hand side of the road, and Mike Bond was riding on the right-hand side. The witness states that he did not see a pistol in the hands of anyone and that he did not know whether one of the boys was carrying a pistol concealed or not.

Mike Bond testified that he was with the appellant on the night in question, that after church he and appellant were riding horse-back along the road, appellant riding on the left-hand side and the witness on the right-hand side. As the two were riding down the road the witness heard a pistol fired two or three times to the left of him , and a little behind him. This witness did not see the pistol in the hand of the appellant, neither did he see the appellant’s hands. After riding on a distance of about thirty or forty yards the witness heard more shots. At this time the shots were a little to the left of him and a little in front. When asked if appellant was a little in front of him at that time the witness said, “I don’t think he was.” But the witness did not see anybody immediately behind or in front of him except his companion. The witness testified he did not know whether the appellant had a weapon with him that night or not; that it was a dark night and that he did not see a pistol anywhere that night.

At the close of the State’s evidence the. defendant offered a demurrer to the evidence, which the court oyerruled. The defendant did not-offer any evidence. Thereupon the case was submitted to the jury with the result as above indicated.

The only question presented by this appeal is whether the evidence is sufficient to support the verdict. It will be noticed from the foregoing statement of facts that there is no evidence tending to show that the appellant on the night in question was carrying the pistol concealed. The concealment of the weapon is the very gravamen of the offense. As one of the witnesses stated it, “he might and he might not have carried the weapon concealed” and that in fact is the strength of all the evidence. It amounts to nothing more than a showing that appellant had an opportunity to carry the weapon concealed. Whether or not he did carry the weapon concealed is left to mere conjecture, and the finding of the jury that he did carry the pistol concealed has no evidentiary basis. Under such circumstances the verdict cannot stand. The demurrer should have been sustained. It therefore follows that the judgment should be reversed and the defendant discharged.

It is so ordered.

All concur.


source: Caselaw Access Project

author: WILLIAMSON, J.

license: Public Domain

text:
    THE STATE ex rel. FRANK W. ASHBY, Prosecuting Attorney of Livingston County, v. MEDICINE CREEK DRAINAGE DISTRICT et al., Appellants.
    Division Two,
    December 1, 1920.
    1. DRAINAGE DISTRICT: Bridges. Under the Circuit Court Drainage District Act of 1913 the burden of building bridges over drainage ditches where they cross public highways rests upon the drain"age district, and not upon the county.
    2. -: -: Corporation: Amendment to Statute. Section 5513, Revised Statutes 1909, required all bridges belonging to any corporation, or needed over a public highway, or right of way of any corporation, to be built by such corporation; and in the case of State ex rel. v. Chariton Drainage District, 252 Mo. 345, it was ruled that, under that statute, the duty of building a bridge over a drainage ditch intersecting a public highway was imposed on the county, on the theory that a county is a public corporation. But to Section 30 of the Act of 1913, relating to building such , bridges, was added the proviso that “the word corporation used in this section shall not apply to counties,” and those words swept away the foundation upon which the Chariton Drainage District case and subsequent cases following it were made to rest, and relieved the county of the burden of building such bridges.

      3. -; — : -: Burden at Common Law. At common law the burden of building a bridge rests upon the individual whose act made its construction necessary; and as the Act of 1913 does not say that either the county or the drainage district shall-build a bridge over a ditch where it crosses a public highway, but does say that such a bridge must be built within a designated time, the common law places the burden of building it upon the drainage district which constructs the ditch that intersects the public road.
    4. -; -: No Damages. Section 30 of the Drainage Act of 1913 in declaring that “all drainage districts shall have full authority to construct and maintain any ditch or lateral provided in its plan for reclamation across any of the public highways of this State, without proceedings for the condemnation of the same, or being liable for damages therefor,” does not relieve the drainage district of the burden of building bridges across such highways.
    5. -; -; Levying Taxes for Construction.. The Drainage Act of 1913 confers upon drainage districts organized under it power to levy taxes for the construction of bridges over its ditches where they intersect public highways.
    -6. -: -: Exception to General Statute.. The Drainage Act of 1913, requiring drainage districts organized under it to construct bridges over ditches constructed by it where they cross ' public roads, is an exception to the general law (Art. 3, Chap. 102, R. S. 1909) confining to the county the duty of building bridges on public highways.
    7. -: -: According to Engineer’s Elans: Correction of Judgment on Appeal. Bridges constructed by a drainage district over its ditches where they cross public roads are required to be constructed according to the plans, specifications and orders made and approved by the chief engineer of the drainage district; and a judgment in mandamus brought against the district, which requires them to be approved by the county engineer, is to that extent erroneous, but it is such error as may be corrected on appeal withous remanding the cause.
    Appeal from Livingston Circuit Court. — Hon. Arch B. Davis, Judge.'
    Affirmed.

      Paul D. Kitt and Perry S. Bader for appellant
    (1) The statutes nowhere place upon' a drainage district organized under the Circuit Court Drainage District Act of 1913, the obligation to build or enlarge or the burden to pay for bridges over its drainage .ditches where they cross public roads, but on the contrary specifically state that “all drainage districts shall have full authority to construct and maintain any ditch or lateral provided in its ‘plan for reclamation,’ across any of the public highways of this State, without proceedings for the condemnation of the same, or being liable for damages therefor” and therefore said petition stated no cause of action for the writ of mandamus compelling the appellants to build and construct said bridges, and their demurrer thereto should have been sustained. Laws 1913, pp. 232 to 267, secs. 26 to 30, and especially Section 30; State ex rel. McWilliams v. Drainage District, 269 Mo. 444; State'ex rel. Caruthers v. Drainage'-District, 271 Mo. 429; State ex rel. Jones v. Drainage District, 252 Mo. 345. (2) The changes in and modifications of the prior law (Art. 1, chap. 41, R. S. 1909), as that law was construed by this court in the cases cited above, by the law under which Medicine Creek Drainage District was organized (Laws 1913, pp. 232 to 267), while not many or material, make it more clear and plain that the costs of constructing bridges over drainage ditches crossing public highways must be borne by the county or by some other public agency than the drainage district. Sec. 30, Laws 1913, p. 250. (a) The statute (Section 30) says, that “all drainage districts shall have full/ authority to construct and maintain any ditch or lateral provided in its ‘plan for reclamation,’ across any of the public highways of this State, without proceedings for the condemnation of the same, or being liable for damages therefor.” The words “without proceedings for the condemnation of the same, or being liable for damages therefor,” were not in Section 5513, R. S. 1909, upon which the aforesaid decisions were based, but all the rest of the language above quoted is in said Section 5513, in more numerous words, but not in larger meaning. The words, “without being liable for damages therefor,’'’ are absolutely new. They are not only very comprehensive words, but they serve to remove the doubt entertained by lawyers for a time as to whether there was an implied intention imbedded in Section 5513 and the other sections of the article of which it forms a part, that the costs of bridges over ditches crossing public roads were chargeable to the drainage district. If the drainage district is not liable for damages for cutting through a public road with its ditches, it cannot be charged with the costs of bridges over such ditches. The largest possible element of damages is the cost of building the necessary bridges, (b) The1 words “without being liable for damages therefor” used in Section 30 of the Act of 1913, are found in the section pertaining to bridges and in the only section of the act that is entirely given over to the subject of bridges. They therefore have reference to bridges. They were meant to include the costs of bridges oyer ditches which all drainage districts are authorized to construct across any of the public highways of this State, (c) The words “without being liable for damages therefor,” used in said Section 30, cannot be limited to and made to qualify only the words “without proceedings for the condemnation of the same. ’ ’ They do mean that a drainage district is not liable in damages for the mere cutting of a public road with a ditch, as if that were a taldng of private property for a public use, or as if it were a;temporary interference with public travel; but it was not necessary to use them for any such purpose, and- they mean far more than that. The public (whether it be the county or the State) has only a public easement in a.public road. The land constituting a public road has already been devoted to a public use — so devoted when the public road was established. It is not necessary to resort to further condemnation proceedings -to devote it1 to a further public use. The use of a part of it for a drain-. age ditch is a further, public use. The Legislature had the right to authorize its appropriation to- a different public use, such as a drainage ditch. State ex rel. Caruthers v. Drainage District, 271 Mo. 435. (d). Not only are the words “without being liable for damages therefor” new in the Act of 1913, and therefore reenforce the conclusion reached in the above decisions that the drainage district 'is not required under Section 5513 to construct bridges over its ditches where they cross public roads, and furnish a new and better reason for a like decision in this case than was then before the court, but the Legislature in framing- the Act of 1913 seemed to studiously labor to omit from it every clause to be found in the prior statutes which might seem to lend any encouragement to any one that its intention was to place the burden of building such bridges on the drainage district. Thus Section 5511, R. S. 1909, stated that the board of engineers, in making up their report and plan for drainage and reclaiming the lands of the district, shall also report the location of any and all public highways which may be crossed by the right of way of any ditch, levee or other improvement planned for said ditch, “together with the estimated cost of bridges and approaches across said highway and made necessary by reason of the aforesaid improvements and drainage.” But while all the other valuable provisions of this section were retained somewhere in the Act of 1913, in almost the same words, the foregoing words quoted were omitted therefrom and no similar words are to be found therein. The natural inference from their omission is that the framers of'the Act of 1913 did not wish it to contain any words' that even squinted at the duty of the drainage district to build such bridges. But the better reason was that neither act put the obligation upon the district to either build or pay for such bridges, and therefore there was no necessity for the engineers to estimate the cost thereof, (e) The proviso attached to the end of said Section 30, reading, “Provided, however, the word corporation used in this section shall not apply to counties,” does not in any wise relieve the county of the duty to build or enlarge the bridges over the ditches which the drainage district is authorized to construct across a public road. It refers simply to notice, and relieves the drainage district of the duty of giving a county notice that a bridge “is needed over a public highway.” Other corporations must be notified. But if the ditch crosses a public road, thereby making the construction or the enlargement of a bridge necessary, the proviso does not require notice to the county, for the simple reason that Section 10490 and other sections of Chapter 102, R. S. 1909, require the county court to take notice “that a bridge is necessary” and to proceed to build it. No court is entitled to notice of a statutory duty. In the minds of some men a county is a “corporation,” and some judicial decisions' and text-writers either say or intimate that a county is at least a municipal corporation, and it was to make it clear that a county was not included in the corporations mentioned further up in Section 30 that this proviso was added. (3) In construing the Act of 1913 the fact that it nowhere gives to a drainage district or to its board of supervisors any power to levy taxes for the construction or enlargement of bridges, or to expend the revenues of a drainage district for any such purpose, should be considered; for such fact is a persuasive and a strong argument that the Legislature did not intend to place the burden of paying for the costs of bridges upon the drainage district. State ex rel. v. Drainage District, 269 Mo. 462; Rigney v. Fischer, 113 Ind. 313. (4) Statutes like Section 30 of the Act of 1913 apply to bridges over artificial streams as well as to bridges over natural streams. Lake Shore Ry. Co. v. Clough, 242 IT. S. 380; Sec. 3049, R. S. 1909; Railway v. Minneapolis, 232 TJ. S. 436, 441; State ex rel. v. Drain. Disk, 269 Mo. 463; C. B. & Q. Ry. v. Drainage Commrs., 200 U. S. 561. (5) The statutes put upon the county (or special road district, or in part upon townships in counties having township organization) the duty of building bridges and paying for the same. Article 3, Chapter 102, R. S. 1909, covers the whole subject of bridges, and Sections 10490 and 10486, found therein, when read together, mean that when a bridge is necessary and costs fifty dollars or more, the county court is required to build it. State ex rel. v.. Chariton Drainage District, 252 Mo. 363; State ex rel. McWilliams v. Drain. Dist., 269 Mo. 462. (a) But defendants are not required to demonstrate that the duty rests on the county to build the bridges. In mandamus relator must place his finger on the exact words that impose a specific duty on respondents, and there is no statute that specifically says the drainage district shall build or pay for bridges over its canals where they cross public roads, or railroads or toll roads. Heffner v. Counties, 193 111.' 439; State ex rel. v. McIntosh, 205 Mo. 607; Dunklin County v. Dist. Court, 23 Mo. 454; State ex rel. v. McAuliffe, 48 Mo. 114; State ex rel. v. Brown, 172 Mo. 382. (6) Relator has misconceived his cause of action. If Livingston County has any cause of action whatever against the Medicine Creek Drainage District it is one for damages for injury to the roads. The drainage ditches have already been cut across the public roads. A bridge is a part of a public highway. A bridge is just as much a part of a public road as is the .earth or macadam on which horses travel or vehicles are hauled. 9 Corpus Juris, 422 (2); 4 R. C. L. 3. The statute requires the county court to keep bridges in repair. Sec. 10501, R. S. 1909. There is no intimation in the Act of 1913, that it is the duty of a drainage district to maintain bridges or keep them in repair. Whatever injury the cutting of the ditches across a public road did is complete. The measure of damages would be the necessary cost of constructing necessary bridges. That damage can be ascertained in dollars and cents. Mandamus “will not lie where any other legal remedy is open to the relator.” Board of Supervisors v. Board of Supervisors, 111 Mich. 105; Eyke v. Lange, 104 Mich, 28; Harrison School Township v. McGregor, 96 Ind. 188. It will not issue unless the party asking it has a clear right and no other specific remedy. Williams v. Cooper Court, 27 Mo. 225; State ex rel. v. Newman, 91 Mo. 445. (7) The petition does not state a cause of action in mandamus. Even if the statutes mean that a drainage district must construct or pay the cost of constructing bridges over its ditches where they cross public roads, the petition must state (a) that the defendants have on hand a fund available for such purpose or the means of providing it, and (b) that the “plan for reclamation,” if such bridges were not included therein as a part of the drainage works and improvements to be constructed, had been reformed, or were by the petition sought to be reformed, so as to include such bridges. State ex rel. v. Commissioners, 39 Kan. 700; State ex rel. Watkins v. Macon County Court, 68 Mo. 29; State ex rel. v. Short-ridge, 56 Mo. 126; State ex rel. v. Cottengen, 172 Mo. 129; People v. Commissioners, 7 Wend. (N. Y.) 474; Pettis County v. Kingsbury, 17 Mo. 479; Kingsbury vPettis County, 48 Mo. 210; Paris v. State, 46 Neb. 857; Travis v. Skinner, 72 Mich. 152; State ex rel. v. Wood County, 72 Wis. 629, 637; Board of Supervisors v. People, 222 111. 9.

      Frank W. Ashby for respondent.
    (1) The difference between the drainage law known as the Circuit Court Act, Sees. 5496 to 5541, R. S. 1909, and the Act of 1913, pp. 232 to 267, are, that the old law required the counties to construct bridges over highways crossed by drainage canals, but the new law is just the reverse, that is, under the Act of 1913, the duty is put upon the drainage district instead of the counties to construct such bridges, (a) • The provision or the words in the Act of 1913 “without proceeding for the condemnation of the same, and without being liable for damages therefor” was not in the old drainage law, and it is clear from a reading of the act that it was the intent of the Legislature that no damages should accrue to the State or the county, for damages caused by drainage districts in crossing highways. The reason for this is that it was the' purpose in adding the words that the drainage district could cross said highway “without proceeding for the condemnation of the same, and without being liable for damages therefor,” that the drainage district should construct necessary bridges and restore the highway to its former condition, (b) So, too, the proviso, attached to the end of Section 30, reading, “Provided, however, the word corporation used in this section shall not apply to counties,” clearly changes the obligations of the county to construct these bridges and placed that duty upon the drainage district. In construing this same section without the proviso, this court has held, that the Counties were intended to be included in the word “corporation” as used in said section, and, therefore, it was the duty of the counties to construct these bridges. The holding .of the court was solely and absolutely upon this section of the law. State ex rel. v. Drainage District, 252 Mo. 345. (2) Respondent contends that bridges needed over highways in the district, are as much a part of the project as the-canal itself, and that the- district has the power to levy a tax to pay for the same. (3) Appellant misconceives the action pursued by respondent in this cause. The action is not that of mandamus, but strictly speaking that of a mandatory injunction. It is true in mandamus that the relator would be compelled to put his finger on the statute that entitled him to relief; but not so in a mandatory injunction, which is entirely in equity. Safe Deposit Co. v. Kennett Estate, 101 Mo. App. 394; Walther v. Cape Girardeau, 166 Mo. App. 478; Schubach v. McDonald, 179 Mo. 194; Camden Special Dist. v. Willow Drainage Dist., 199 S. W. 716. (b) While it is true possibly that in the prayer of the petition it is not specially asked that appellant be required to prepare necessary plans and specifications for these bridges, and be required to make a tax levy sufficient to pay the cost thereof; yet the prayer of the petition closes hy ashing general relief, “and for such other orders and further relief as the court may deem meet and just in the premises.” If then, it is necessary for a tax levy to be made, under the rule, the court has power to so decree. State ex rel. v. Drainage Dist., 269 Mo. 444. (c) But it is not necessary for the court to so decree, because to affirm the judgment, which should be done, would compel the appellant to construct the bridges at its expense, and it now has, and has always had, and will continue to have, ample power to make levies, and additional levies, to complete the work and improvements. Sections 18 and 45, Act 1913. (4) By the common law, it is the duty of landowners or others who cut a ditch or canal across a public highway to restore the same to as good a condition as it was, even though it is necessary to construct and maintain bridges at the expense of the party constructing said canal. Independence v. Mo. Pac., 86 Mo. App. 585; Canal Co. v. County Com., 40 Am. Rep. 430; Conewango v. Shaw, 31 App. Div. 354, 52 N. Y. Supp. 327; State ex rel. v. Lake, N. R, & I. Co., 63 Kan. 394, 65 Pac. 681; Venard v. Cross, 8 Kan. 272; Haines v. People, 19 111. App. 354; Drainage District v. Biggs, 134 HI. App. 239; Highway Commrs. 'v. Drainage District, 246 111. 388; People v. Fenton & T- R- Co., 252 111. 372; Dygert v. Schneck,’ 23 Wend. 446, 35 Amer. Dec. 575; Durton Township ■ v. Tuttle, 300 Ohio St. 68; West Bend v. Mann, 59 Wis. 69.

      Franlc W. McAllister, Attorney-General, and John T. Gose, Assistant Attorney-General, amicus curiae. .
    Under the Drainage Law of 1913, counties cannot be held liable for the cost of constructing a bridge across an intersected highway, because the General Assembly has provided that counties are not to be considered as corporations within the meaning of that term as used in Section 30 of said law, which provides how all bridges contemplated by the Act shall be built, and, only in the ease of corporation, does such section permit the drainage district to pass on the burden of building such a bridge to another. Sec. 30, Laws 1913, pp. 250-251; State ex rel. v. Chariton Drainage District, 252 Mo. 345; State ex rel. v. Little River Drainage District, 269 Mo. 444, 271 Mo. 429. Beyond'question it appears that the reason why this court held the county liable, under the drainage law of 1909 and 1911, for the cost of constructing a bridge over a highway, was that the county was a corporation within the meaning of that term as used in Sec. 5513, R. S. 1909, and such section in “plain, unambiguous and positive language” provided that when a corporation failed to construct or enlarge such bridge, the drainage district might do so at the expense of the corporation, and sue the corporation, if necessary, to recover such cost. Section 30 of said act provides how bridges shall be built. It is to be noted that this section includes “all bridges contemplated by this act.” Then follows the proviso that the word “corporation” as used in said section, shall not apply to counties.
   WILLIAMSON, J.

The State at the relation of the Prosecuting Attorney of Livingston County, brought this proceeding against the Medicine Creek Drainage District and the board of supervisors of said district, for a mandatory injunction requiring the district to build and maintain bridges upon certain named public highways in Livingston County at all points where said highways were, or were about to be, intersected by the drainage ditches of said district. Relator prevailed in the trial court, and the district has duly appealed.

The Medicine Creek Drainage District was organized in 1916, under the Act of 1913 authorizing the incorporation of drainage districts by a decree of the circuit court. [Laws 1913, pp; 232 to 267.]

I. Appellant contends that the Act of 1913 does not place upon drainage districts the burden of building bridges over ditches across public highways, and insists that that expense shall be borne by the county.

Many, if not all, of the questions presented have been decided in this court in other cases, but since those decisions were rendered, the statutes relating to drainage districts have been amended in certain particulars, with the result, as relator claims, that those decisions do not now control. In 1913 the Legislature repealed Article I of Chapter 41, Revised Statutes 1909, and various amendments thereto, and substituted the Act of 1913 in lieu thereof. The Drainage Statute of 1909 had been construed by this court upon the proposition here involved in three cases, and in each instance we had held that the law imposed the burden of building bridges over drainage district ditches upon the county. [State ex rel. v. Chariton Drainage Dist., 252 Mo. 345; State ex rel. McWilliams v. Little River Drainage Dist., 269 Mo. 444, and State ex rel. Caruthers v. Little River Drainage Dist., 271 Mo. 429.] How far these decisions are now controlling authority in this case, depends upon the materiality of the changes made by the Act of 1913 in the statute law on this topic as it stood in 1909. It hence becomes necessary to compare the two statutes and note the changes which have been made, and then to determine the effect of those changes. The general purpose of the two statutes was the same, and many of the sections of the drainage laws of 1909, supra, have been carried into the Act of 1913 with the. same headings and with little or no change in verbiage — a fact which facilitates comparison. "We will confine our comparison strictly to the topic in hand, to-wit, bridges. The first section of the statutes of 1909 relating to bridges is Section 5503, which is as follows:

“All bridges in said district across any drain, ditch, canal or excavation, shall be built according to, and in compliance with the plans, specifications and orders made or approved by the chief engineer of the district. Any owner of land within the district may, at his, own expense and in compliance with the terms and provisions of this section, construct a bridge across any drain, ditch, canal or excavation in said district, The hoard of supervisors shall, wherever necessary, at the expense of the district, construct a convenient roadway or crossing over and across any levee or embankment in said district.”

The 1909 statutes then provide for the appointment of a board of supervisor's, and by Section 5511 for the appointment of a “board of engineers” for each district, after which Section 5511 proceeds as follows:

“The said ‘board of engineers’ shall make a complete topographical survey of the said district and submit the same to the board of supervisors with maps and profiles of said survey and a full and complete plan for drainage and reclaiming the lands in said district from the overflow of or damage by water, or floods; and also, the physical characteristics and location of any right of way, roadbed, bridge or bridges and other prop-, erty- or improvements in said district belonging to or under the control of any railroad company; and shall also report the location of any and all public highways which may be crossed by the right of way of any ditch, levee or other improvement planned for said district, together with the estimated cost of bridges and approaches across said highway and made necessary by reason of the aforesaid improvements and drainage.”

The pertinent portion of the next section relating to bridges (Sec. 5513, R. S. 1909), omitting ■ matter not material to this question, is as follows:

“Saidboard of supervisors shall also have the power to' construct or enlarge or cause to be constructed or enlarged, all bridges that may be needed in or out of said district across any drain, ditch, . . . public highway or railroad right of way . . . and, further, shall have power to remove any bridge ... in or out of said district, which ma3^ be in the wa3r of any drainage . . . works ... of said district. . . . All bridges contemplated by this section shall be built according to and in compliance with the plans, specifications and orders made or approved by the chief engineer of the district: Provided, hotvever, that if such bridge shall belong to any corporation, or be needed over a public highway, or right of way of any corporation, the secretary of said board of supervisors shall give such corporation notice. . . . A failure to construct or enlarge such bridge within the time specified in such order shall be taken as a refusal to do said work by said corporation, and thereupon the said board of supervisors shall proceed to let the work of constructing or enlarging the same at the expense of the corporation for the cost thereof.”

The substances of these sections has been incorporated into the Act of 1913.

In each of the three cases above cited, it will be noted that it was held that the cost of building bridges over public highways in or out of drainage districts, was imposed upon the county in which the bridge was located. In the first case (State ex rel. v. Chariton Drainage District) 252 Mo. 345) this court construed Section 5513, supra, to impose the cost of building bridges upon the county, not because of any plain and pointed statement in the statute to that effect (for the statute contains no such statement), but because of the proviso in that section to the effect that “if such bridge shall belong to any corporation, or be needed over a public highway,” then the bridge shall be built by or at the expense of such corporation. A county is a public corporation, of course (14 C. J. 74), and upon that idea the decision in the Chariton Drainage District case is plainly based. That decision was handed down July 10, 1913. The opinion affirmed the judgment of the lower court. It is argued that when the General Assembly of 1913 met it was a matter of commoii knowledge that under the drainage laws as they then stood, the cost of building bridges made necessary by the cutting of drainage ditches, was imposed upon the counties, because counties were corporations within the meaning of that word as used in the.drainage laws. Thereupon the General Assembly of 1913 undertook a revision of the drainage laws. In so doing it adopted as Section 30 of the Act of 1913 all that part of Section 5513, supra, beginning with the words, “All bridges contemplated by this section,” thence to 'and including the words “twenty days actual notice of the time and place of letting such work.” A few slight changes in verbiage are made, but none which affects the question here involved. The Legislature then added the following clause, which did not appear in the statutes of 1909, to-wit:

“Within ten days after a dredge boat or any other excavating machine shall have completed a ditch across any public highway, a bridge shall be constructed and maintained over such drainage ditch where the same crosses such highway; Provided, however, the word corporation as used in this section shall not apply to counties

Whether or not the General Assembly took cognizance of the decision of the Macon County Circuit Court in the Chariton Drainage District case, 252 Mo. 345, may admit of speculation, but that the addition to the drainage laws of the words last above quoted sweeps away the foundation upon which the decision of the Chariton Drainage Drainage District case was based, so far as the question here involved is concerned, is too plain for controversy. This amendment affects the decisions above cited in the Little River cases (269 Mo. 444 and 271 Mo. 429) in the same way, and to the same extent. Hence it becomes necessary to determine in the light of this amendment, upon whom now rests the burden of bridge building under the Act of 1913. At common law, that burden would rest upon the individual whose acts made the building of the bridge necessary. [Rex v. Lindsey, 14 East, (Eng.) 317; Rex v. Kerrison, 3 M. & S. (Eng.) 526; Penn. Railroad Co. v. Irwin, 85 Pa. St. 336; Richardson Co. v. Drainage Dist., 92 Neb. 776.] Numerous authorities to the same effect are collated in an exhaustive note upon the case last cited, in 31 Am. & Eng. Ann. Cases (1914A ), page 550.

As construed in the Chariton Drainage District case, supra, and in subsequent decisions, Article 1 of Chapter 41 (Drainage Statutes, R. S. Mo. 1909) the law imposed what this court felt to be a hardship upon the counties, but one which we could not avoid. Thus in the Chariton case, Faris, J., speaking for this court, said:

“While it is regrettable that a studied effort seems to have been made to render this drainage statute vague and ambiguous upon the point ^of where the burden of bridge building lies and while the view we have heretofore taken and are now again forced to take, is fraught with hardships in this, and in other single instances, we can only repeat that the remedy lies with the Legislature and not with us. We construe the law.; we do not make it.” [269 Mo. l. c. 463.]

The vexatious vagueness of which the learned jurist there spoke is still as annoyingly persistent in the Act of 1913 as before. It seems that it would not have been a difficult matter to incorporate into this act a line saying in plain terms either that the county or the drainage district must build and pay for bridges, but that has not been done. We must construe the act as we find it.

Seeking the legislative meaning, then as in duty bound, as Job sought the grave, “diligently and with tears, ’ ’ we come to considerations which may be summed up thus: The drainage law as found in the Statutes of I. 909' permitted a construction which placed the duty of building bridges over drainage ditches upon the counties. The trial courts so construed it — and correctly so construed it, as we held in the Chariton case, supra. This was felt to be a hardship, as was said by Fabis, J. , in the paragraph which we have quoted. This paragraph though written subsequent to the- Act of 1913, no doubt voiced a sentiment which had prevailed under the old law. The construction which caused this hardship was based, as we have said, upon an interpretation of the word corporation, as used in the drainage statute, as a word which included counties. The Legislature revised the law and in substance and almost literally reenacted the section which had been so construed. But in doing so, the Legislature said very clearly, that “the word corporation as used in this section shall not apply to countiesBy this rule of construction we are bound, and if counties are not corporations within the meaning of that section, then there is no authority in the Act of 1913 for imposing the burden of the building of bridges upon counties. But Section 30 of the Act of 1913 provides that the bridges must be built. In the absence of a statutory declaration otherwise, the obligátion to perform that duty would rest upon the drainage district under the common law, as we have said.

But Section 30 of the Act of 1913 contains a further' clause, not found in the old law: “All drainage districts Lave full authority to construct and maintain any ditch or lateral provided in its ‘plan for reclamation’ across any of the. public highways of this State, without proceedings for the condemnation of the same, ,or being liable for damages thereforIf the duty of building and maintaining bridges across drainage ditches intersecting public highways devolves upon the drainage district to which such ditch belongs, then the wisdom and justice of this exemption from damages is apparent, for the building and maintenance of the bridge is a reparation of the damage' inflicted by the digging of the ditch. But if the counties must build such bridges, then by this provision, .the Legislature has conferred upon drainage districts - an immunity which, .so far as we are advised, it has granted to no other person, either natural or corporate. That one who, for his private ends, should dig a ditch across a public highway, would thereby incur a civil liability to the county for damages, seems quite plain. That the Legislature might properly fix the measure of damages in such a case, at the cost of building and maintaining a suitable bridge over such ditch, seems equally plain. But that the Legislature could, under Section 46 of Article 4 of our Constitution, grant to certain classes of persons, natural or corporate, the right to dig innumerable ditches across the public highways of the State, and at the same time confer immunity from damages therefor, is a matter which might well be' doubted, but which, though argued in the briefs in this case, we do not think it necessary to decide. The obvious purpose of the Legislature in saying in the Act of 1913 that counties should not, under that act, be considered to be corporations, was to relieve counties of the bui*den of building bridges over drainage ditches intersecting pnblic highways. Since counties are not required to build these bridges, the drainage districts must do so. Furthermore, it seems essentially just that the burden of building bridges made necessary by the digging of drainage ditches should be borne by drainage districts. Drainage districts are, in a sense, public enterprises, and they have, very properly, been greatly encouraged in this State, but, in. the last analysis, the . benefits which 'flow from them are chiefly enjoyed by those who own the lands which the ditches drain. It is a matter of common knowledge that thousands of acres of once worthless swamp lands in this State have been transformed by these agencies into farming lands of the most extraordinary productiveness and value. The area of a drainage district may, and commonly does, form but a small fraction of the total area of the county or counties in which the district lies. In the instant case, it appears that the total area of the Med-cine Creek Drainage District is but three per cent of the total area of Livingston County. Why should ninety-seven per cent of the lands of that county be taxed for the construction of bridges which are made necessary only by reason of a scheme for the improvement of the, other three per cent? As a matter of abstract justice, it would seem that those for whose benefit the ditch is dug, should build the bridges thus made necessary. Upon this point we affirm the holding of the trial court.

II. Appellant asserts that the Act of 1913 nowhere confers upon drainage districts power to levy taxes or disburse funds for bridge building. To this contention 7™ 08111104 j*"»' A “V41^ ^088 ■is apparent m the act itself. Section 2 provides that the subscribers to the initial articles of agreement shall, in writing, “obligate themselves to pay the tax or taxes which may be assessed against their respective lands or other property to pay the expenses of organizing and of making and maintaining the improvements that may be necessary to effect the reclamation of said lands.”

Section 14 requires the commissioners provided for by the act, to “estimate the cost of works set out in ‘the plan for reclamation,’ which estimates shall include the cost of property acquired for rights of way, holding basins and other works and damages.”

Section 18 empowers the supervisors to “levy a tax . . . to pay the costs of the completion of the proposed works and improvements as shown in said ‘plan for reclamation, ’ and in carrying out the objects of said district.”

Section 19 provides for'the levy of a maintenance tax.

Section 26 empowers the supervisors “to construct or enlarge or cause to be constructed and enlarged any and all bridges that may be needed in or out of said district across any drain, ditch, ... or public highway.”

Section 30, from which we have heretofore quoted extensively as to matters pertinent in this case, is specifically devoted to bridges, and is naturally and properly to be construed, under the provisions of the Act of 1913, as imposing the duty of building, bridges upon the district, as we have pointed out in a preceding paragraph.

Without prolonging this opinion unduly by a discussion of each section of this act, it will suffice to say that Sections 42, 43, 47 and other sections not herein specifically enumerated, contain additional grants of authority, which in conjunction with those above mentioned, vest in the board ample power to build bridges, and for that purpose to levy taxes and disburse funds, as well as to do many other things. The Legislature can hardly be accused of parsimony in its grant of power to drainage .districts, no matter what else may be said of this act. We rule this point against appellant.

III. Appellant claims that the general subject of building bridges is, by Article 3 of Chapter 102 of the Revised Statutes of 1909, confided to the counties, and that for that reason the Act of 1913 cannot be interpreted to impose the duty of building a bridge upon a drainage district. The same contention was made and overruled in the Chariton case, supra, l. c. 362, wherein we said:

“It is a well known rule of statutory construction that ‘where there are two acts and the provisions of one apply specially to a particular subject, which clearly includes the matter in question, and the other general in its terms, and such that, if standing alone it would include the same matter, and thus conflict with each other, then the former act must be taken as constituting an exception to the latter or general act, and not a repeal of the former.’ [State ex inf. v. Amick, 247 Mo. 271, l. c. 292 and cases cited.] It is perfectly clear from reading Section 5513 of Article 1 of Chapter 41, Revised Statutes 1909, and Article 3 of Chapter 102, that the provisions of the former apply specially to those bridges which the board of engineers of drainage districts finds are necessary to be constructed in public highways where they cross ditches or canals of a drainage company, and by whom they must be built and paid for and that said Article 3 is general in its provisions governing the construction of bridges generally throughout the country, as well as the expenditure of the revenues of the cpunty therefor, and is sufficiently broad, if standing alone, to embrace bridges to be constructed in public highways and across ditches of a drainage company; and if the former is not to.be construed to be an exception to tbe latter, then there would be a clear conflict between them; but since both acts stand in pari materia, we must interpret them together, according to the rule before stated, and when so done the legislative intention is clear, and we must hold that said section 5513 is an exception to the general provisions contained in Article 3 of Chapter 102, Revised Statutes 1909, and therefore, are not in conflict with each other, as contended for by counsel for respondents.” [State ex rel. v. Chariton Drainage District, 252 Mo. 345, l. c. 363-364.]

The portion of Section 5513 referred to in the above excerpt has been reenacted as a part of Section 30 of the Act of 1913. We adhere' to the ruling announced in the Chariton case.

IV. Appellant calls our attention to the fact that the judgment in this case provides that the bridge required to be built by appellant shall “be approved by the County engineer of Livingston Connty.” The Act of 1913, Section 30, provides that “all bridges contemplated by this act . . . shall be built according to . . . plans, specifications and orders made or approved by the chief engineer of the district.” In this particular the judgment of the trial court is erroneous. But we are not compelled to reverse and remand this cause merely for the correction of this error. We can and will enter the proper judgment here. [Sec. 2083, R. S. 1909; State ex rel. v. Trust Co., 209 Mo. 473.]

Appellant also presses upon our attention certain questions relating to procedure. We do not regard them as being vital. Particularly in matters of this sort, it is well to disregard technical distinctions — the “tithes of mint, anise and cummin” — and give heed to “the weightier matters of the law.” • It is better to drive at once to the heart of this case and decide it upon the merits, rather than to let the decision rest on more or less futile matters of procedure. We have considered appellant’s contentions relating to these matters, bnt we are not impressed by them, nor do we think it necessary to discnss them separately.

The eonclnsion of the whole matter is that the judgment below should be so modified as to réquire the appellant to construct the bridges in said judgment mentioned according to and in compliance with the plans, specifications and orders made or approved by the chief engineer of the appellant district, and said judgment should be further modified by omitting the provision therein requiring the approval of such bridges by-the county engineer of Livingston County.

With these modifications, the judgment is affirmed.

All concur.


author: RAILEY, C. PER CURIAM:

text:
    THE STATE v. NEELEY J. ANDERSON, Appellant.
    Division Two,
    December 1, 1920.
    1. PROSTITUTION: Definition. Prostitution as defined in the legal authorities and as used in Section 5 of the Act of 1913, Laws 1913, page 221, prohibiting the transportation of a female person across or through this State “for the purpose of practicing prostitution, or with the intent and purpose to induce, entice or compel such female person to become a prostitute,” means “the common lewdness of a woman for gain,” or “the act of permitting a.common and indiscriminate sexual intercourse for hire.”
    2. -: Transportation: insufficient Evidence. Although defendant, a married man, prior to the time an unmarried girl left her parents’ home, had had sexual intercourse with her, and paid her railroad fare to another town and secured a room for her at a hotel and she at his instance passed herself off as his sister, and although when she left home she “expected defendant to keep her,” yet if he did not have or attempt to* have sexual relations with her, and did not induce or attempt to induce her to have sexual intercourse with other men, from the time she left home until her return thereto, and he persuaded her to go to the other town for the purpose of obtaining employment, he was not guilty of a crime under the statute which makes it a felony for any person to transport or aid in transporting any female person through or across this State “for the purpose of practicing prostitution, or with the intent and purpose to induce, entice or compel such female person to become a prostitute.”
    Appeal from Moniteau Circuit Court. — Hon. J. G. Slate, Judge.
    Be VERSED.

      Boy L. Kay and J. B. Gallagher for appellant.
    The taking of a female from her place of abode, though it be at the instance of the accused and for the purpose of sexual intercourse, does not constitute the act “a taking within the purview of the statute.” The taking, in order to be “a taking” under the statutatory prohibition of said Section 5 must be with the intent and purpose of causing the female to become a prostitute. State v. Gibson, 111 Mo. 98. Said section does not prohibit mere sexual intercourse; it only prohibits the taking away of a female where the taking has in contemplation such sexual intercourse as will ultimately result in a life of prostitution. The mere intent to obtain sexual gratification will not support a charge of a taking away for the purpose of prostitution. State v. Gibson, 111 Mo. 99. “When a statute provides that the taking must have been for purpose of prostitution, the evidence must show beyond a reasonable doubt that the accused intended to cause the female to enter upon a life of indiscriminate sexual intercourse. It is not enough to show that he, or some third person, intended to have intercourse with her occasionally.” Underhill on Criminal Evidence (2! Ed.), sec. 343; 32 Cvc. 731.

      Frank W. McAllister, Attorney-General, and Lewis Hord Cook, Assistant Attorney-General, for respondent.
    The gravamen of the offense is that any person who knowingly transports a female person through or across the State of Missouri with the intent and purpose to induce, entice or compel such female person to become a prostitute, shall he deemed guilty, etc. Intent is a mere invisible resolve of the human mind and, ordinarily, must be gathered from the acts and conduct of the person charged "with the commission of the act. State v. Beverly, 201 Mo. 558. The accepted definition of the word, “prostitute,” is “a woman who indiscriminately consorts with men for hire. ’ ’ Here we have proof that the defendant clandestinely got the female from her home and from the control of her parents and transported her across the State. With what intent? The female transported is the sole witness who can enlighten in this case, as to the invisible resolve of the defendant. And she states that she was to work and that she supposed that she would live with defendant in a state of adultery. Under this evidence, could the jury suspicion that the intent of the defendant was to induce or entice or compel the female to consort with men indiscriminately for hire? We think not. “Mere suspicion,- however strong, will not supply the place of evidence when life or liberty is at stake.” State v. Jones, 106 Mo. 302; State v. Richmond, 253 Mo. 500. The evidence as a whole leaves much room for doubt, and there is not sufficient proof of Ms guilt to authorize the State to deprive defendant of his liberty.
   RAILEY, C.

An amended information was filed in this cause on January 12, 1920, by the prosecuting attorney of Moniteau County, Missouri, in two counts. As the trial court directed a verdict in favor of defendant as to the first count, we will only set out the second count, under which defendant was tried and convicted, which reads as follows:

“S. C. Gill, prosecuting attorney within and for Moniteau County, Missouri, upon Ms oath of office, further informs the court that said Neeley J. Anderson, on or about the first day of October, 1919, at the county of Moniteau, in the State of Missouri, did then and there, knowingly, .unlawfully and feloniously transport and cause to be transported and/ procure transportation for and assist in obtaining transportation for a ‡emale person, to-wit, Eula Heather, through and across this State of Missouri, to-wit, from the City of California, in Moniteau County, .Missouri, to the town of Mayview in the County of Lafayette, Missouri, with the intent and purpose, then and there, knowingly, unlawfully and feloniously to induce, • entice and compel said Eula Heather to become a prostitute, -against the peace and dignity of the State.”

On January 12, 1920, defendant was arraigned, enterd a plea of not guilty, and proceeded to a trial of said cause before a jury. The evidence was heard, etc., and the jury returned the following verdict:

“We, the jury, find the defendant guilty as charged in the second count of the information and assess his punishment at imprisonment in the penitentiary for'a term of four years. Herman Miller, Foreman.”

Defendant, in due time, filed motions for g. new trial and in arrest of judgment. Both motions were overruled and the cause duly appealed by him to this court.

The evidence offered by the State, is substantially as follows:

Eula Bolinger testified’ that prior to bier marriage, she. was named Eula Heather; that about October 1, 1919, she lived with her parents at California, Missouri; that she knew defendant, and talked with him, without the knowledge of her parents. She said she left California, Missouri, at the instance of defendant; that the latter paid her railroad fare to Mayview, Missouri; that she went to Tipton, and got on the train upon which defendant and his brother, Al. H. Anderson, were riding; that they got off at Sedalia, iemained at the depot there until about seven o’clock next morning, when Al. gave her a ticket, and all three of them rode to Higgins-ville; that Al. got her a room at the hotel there, and she remained while they went to Mayview to see about work; that they left that evening for Mayview; Al. gave her a ticket; when they got to Mayview, defendant and witness stayed at the depot that evening; Al. looked np a room, and stayed at a boarding house; she passed herself off as the sister of defendant and brother, at the instance of Al.; the latter told the landlady that the name of witness was Miller; defendant roomed upstairs and witness roomed downstairs; they got there Thursday evening; the boys worked some; they came to her room a little while in the evening when they came from work, and then went upstairs; Al. took her to Lexington, Missouri; they went to a restaurant for supper; she and Al. were arrested and taken to the city hall; neither of the boys gave her any money after they got there; her arrangement with defendant, to leave home, was made in Moniteau County, Missouri; they told her they would get her work, picking apples in the evaporator; defendant told her his sister intended to go back with Al. to Lexington to work; she did not know of defendant making arrangements for any pther girls to go.

On cross-examination, witness testified, that her family and the Anderson family lived near each other at California, Missouri; that she had known the boys about two or three years; that she had been working at the overall factory at California, and defendant said he would get her a job up there; that Al. is the older brother of the two, and is a single man; that while at Mayview, both boys picked apples; *‘neither of the boys came to my room during the night;” that she was at Mayview from Thursday to Saturday evening. She testified, that neither of the boys did anything ugly with her, but treated her like a lady and like a sister; that neither of them went to bed with her. She said defendant had intercourse with her in California, Missouri, but Al. never did; that she had intercourse with defendant about two days before she left California. She testified, that before she left defendant never suggested to her to go np with him for the purpose of having her go with other men to make money; that he never suggested that at any time; that Al. made no such suggestión; that neither of them ever brought any man around to her room, nor did either of the boys ever ask her to do' wrong with other men, or with themselves; that Al. was going to leave her with a girl at Lexington, but she never saw the girl; that defendant did not go to Lexington; that since the above occurence witness has married. She says defendant never suggested to her to do wrong with other men, for money or otherwise. She said defendant was afraid to ge with her to Lexington; he was.afraid of the law. Witness says she was sixteen years old at the time; that defendant told her he would get her a job, pay her way up there and buy her clothes; that defendant’s wife was at California at the time; that defendant told her about Al. being at work at Mayview; that appellant has a wife and children; that Al. bought her ticket, and put her on the train, when she came back from Lexington; she has not talked with AL or defendant since she came back from Lexington; she expected defendant to keep, her. She testified that she is defendant’s cousin.

■ Witness Lizzie Tyler kept the boarding house at Mayview where defendant, his brother and Eula Heather stopped. They did not take their meals with witness. She said the girl occupied one room and the boys the other. They had to go through her room to get upstairs to their room. Witness said she never saw anything improper or immoral between these parties while they were at her house.

Witness Homer Salyer kept the restaurant at May-view. Defendant, his brother and Eula Heather took their meals at the restaurant in Mayview, and he heard no immoral talk between them.

The foregoing covers substantially all the testimony relating to the subject-matter of this action.

The rulings of the court, the instructions and such other matters as may be deemed important, will be considered in the opinion.

I. It is conceded by counsel for the State, as well as those representing defendant, that the second count of the information aforesaid is based upon Section five of the Act of 1913, Laws 1913, page 221, which reads as follows:

“That any person who shall knowingly transport or cause to be transported, or procure transportation for, or aid or assist in obtaining transportation for any female person through or across this State for the purpose of practicing prostitution or with the intent and purpose to induce, entice or compel such female person to become a prostitute, shall be deemed guilty of a felony and upon conviction thereof shall be sentenced to the penitentiary for not less than two nor more than twenty years.”

Defendant raises the constitutionality of said Section 5, and insists that it contravenes Section 28 of Article 4 of our Constitution, etc.

In our view of the case, it will not be necessary to consider the validity of said section, as the legality of defendant’s conviction cannot be sustained under the evidence. The Attorney-General, in his brief, concedes that the evidence is insufficient to'sustain a conviction.

II. Prosecution is defined by Webster to be: The ‘ ‘ act or practi ce of prostituting the body; common lewdness of a woman.” As defined in the legal authorities, it means: The common lewdness of a woman for gain. The act of permitting a common and indiscriminate sexual intercourse for hire.” [State v. Gibson, 111 Mo. l. c. 97; Black’s Law Dictionary (2 Ed.) p. 959; 4 Elliott On Evidence, sec. 2745, p. 53; 3 Bouvier’s Law Dictionary (Rawles 3rd Revision), p. 2755, and sases cited; Anderson’s Law Dictionary, p. 839; State v. Stoyell, 54 Me. 24; Osborn v. State, 52 Ind. 526; Commonwealth v. Cook, 53 Mass. 93; State v. Ruhl, 8 Iowa, 447; Carpenter v. People, 8 Barb. 603; 8 R. C. L. sec. 351, p. 322; 32 Cyc. 731; Underhill On Criminal Evidence (2 Ed.), sec. 343.]

III. The evidence heretofore set out, construed in the light of foregoing authorities, signally fails to make out a .case under the Act of '1913, supra.

The cause is accordingly reversed and defendant discharged.

White and Mozely, GG., concur.

PER CURIAM:

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

All of the judges concur.


author: WHITE, C. PER CURIAM:

text:
    THE STATE v. ROY SIMMONS et al., Appellants.
    Division Two,
    December 1, 1920.
    1. RECOGNIZANCE: Stay of Execution: Bond to Pay Fine and Costs. A bond which contains no condition that its principal surrender himself, but conditioned that he pay a fine which has been assessed against him within the ninety days for which he has been granted a stay Of execution, is not conditioned upon any provision mentioned in the statute (Sec. 5291, R. S. 1909), nor is it conditioned upon any failure which under the statute (See. 5134, R. S. 1909; would involve a forfeiture in a proceeding by scire facias against the sureties.
    2. -: -: -: Irregularities: Forfeiture. A recognizance, given in compliance with some condition mentioned in the statute, is not void so as to prevent a forfeiture, for irregularities for which it may be amended, or for omissions which may be supplied. But a bond which is entirely foreign to the statute, and contains no conditions upon which a recognizance may be taken, cannot be forfeited by scire facias. A statutory forfeiture cannot be adjudged for failure to comply with a condition which the statute does not recognize. The curative part of Section 5019, Revised Statutes 1909, cannot be applied to a bond unless it is conditioned that defendant appear at a certain time, as provided in Section 5291.
    3. -: Liability at Common Law: Proceeding by Scire Facias. Where the proceeding for forfeiture of a bond is under the statute by scire facias, it is unnecessary to determine whether the bond, invalid under the statute because it is not given for the performance of any condition recognized by it, is good and valid at common law.

      Appeal from Cooper Circuit Court. — Hon. J. G. Slate, Judge.
    Affirmed. •

      W. V. Draff en and W. G. Pendleton for appellant.
    (1) The amendment, nune pro tunc, to show an order of stay of execution made at a preceding term, was unauthorized. The whole record shows not the slightest memorandum upon which to base this amendment. The testimony of the clerk informing the court that the court made such an order was incompetent. The action of the court can only be proven by its record, Callier v. Railroad, 158 Mo. App. 259; Belkin v. Rhodes, 76 Mo. 643. The State must rely solely upon the recital in the bond itself to authorize the amendment nunc pro time. This is not sufficient, because, first, the bond was merely a filed paper in the cause and recites an antecedent action of the court. Such construction would be equivalent to permitting the unauthorized act of the defendant and the clerk to speak for the court. Again, the only' recital in the bond of any order of the court is the granting of a stay of execution. It does not even recite that the court fixed the amount of the bond or approved it. No approval of the bond in or upon the same or by any record prior to the amendment. Neither the sheriff: nor the clerk had authority to fix the amount of this recognizance. R. S. 1909, sec. 5291; State v. Owen, 206 Mo. 573; State v. Crosswhite, 195 Mo. 1; State v. Fraser, 165 Mo. 242. A recognizance so taken is void. The statute clearly contemplates that the recognizance is to be taken and approved by the court or judge. (2) The bond is void on its face as a statutory recognizance under Sec. 5291, because it is not conditioned for the surrender of Roy Simmons in execution. This is not a mere irregularity under Section 5019, because that section requires that the recognizance must show “that the sureties undertook that the defendant should appear before a court or magistrate, etc. ’ ’ Hence, the absence of that provision is not an irregularity cured by Section 5019. Lack of certain ' essential requirements are not .mere irregularities in such recognizances. State v. Woodward, 159 Mo. 680. A recognizance binding the sureties for the absolute payment of money, and not for the appearance of the accused principal, is more onerous than the statute requires, and renders the recognizance void. Hand v. State, 28 Tex. App. 28; Wright v. State, 22 Tex. App. 670. Such a bond is not evén good as a common law bond. State ex rel. v. Frazer, 165 Mo. 258. But even if it were, it cannot proceed to judgment against the sureties by serie facias; since the basis of that proceeding is the forfeiture under Sec. 5134, R. S. 1909, which can be taken only if the defendant fails to appear as required by the condition of his recognizance. There being no such condition, either expressed or implied, in this recognizance, it could not be declared forfeited as provided by Section 5134, and, hence, the sureties cannot be brought into court by scire facias. If suable at all, they must be sued in an ordinary civil action. (3) The sureties are not estopped to deny the validity of this recognizance because of any benefit which their principal may have derived from it. State ex rel. v. Fraser, 165 Mo. 255. Appellants ask that the judgment be reversed.

      Frank W. McAllister, Attorney-General, and J. W. • Broaddus, Assistant Attorney-General, for respondent.
    (1) It was proper for the court to amend the record nun pro tu/nc so as to show an order of stay of execution made on the 19th day of May, 1919. Said amendment' was based upon the files of the case and not upon the mere recollection of the clerk. Belkin v. Rhodes, 76 Mo. 643; Loring v. Groomer, 110 Mo. 639; State v. Libby, 203 Mo. 597; Callier v. Railroad, 158 Mo. App. 260. While it is true the court heard evidence of the clerk and his deputy to the effect that the court had actually made an order granting a stay of execution for 90 days, still the judgment recites that said order nunc pro tunc was also based upon the “files and records of the court.” The recognizance signed by defendant and_ appellants recited .the fact that “on the 19th day of May, 1919, the judge of said circuit court, by an order duly made, granted a stay of execution to defendant for 90 days, within which time defendant is to pay said fine of $100 and the costs thereof.” This recognizance was filed with the cl,erk on the 22nd day of May, 1919, and became a part of the records of the court. It formed a sufficient basis upon which to make the nunc pro tunc order. (2) This court will not interfere with the action of the trial court in'making the mmc pro tunc order where it was based upon substantial evidence. Sperling v. Stubblefield, 105 Mo. App. 494; In re Fulsome’s Estate, 193 S. "W. 620, par. 5. (3) There is no merit in the contention that the recognizance is void because the amount thereof was fixed by the sheriff or clerk. Instead the amount of the recognizance was fixed by the verdict of the jury and judgment of the court and the 'writ of scire facias recited the fact that said recognizance was approved in open court. (4) The recognizance was not conditioned for the surrender of the defendant, Roy Simmons, in execution as required by Section 5291. However, the obligation expressed in the recognizance follows the exact terms of the judgment which were to the effect that, “the State have and recover of the said defendant the said sum of $100, together with the costs, laid out and expended. ’ ’ A recognizance as defined in State v. Wilson, 265 Mo. 18, is “an obligation acknowledged and entered into in open court or by appearance of the principal and his sureties before the officer taking same, in which the recognizor, with sureties, binds himself under a penalty to do some particular thing.” Here the defendant and said sureties solemnly agreed to do the particular thing that the judgment of the court required, to-wit, pay the fine of $100 and costs. This they failed to do within the time allowed by the court and specified in the recognizance, and they should not now be heard to complain that a different obligation should have been imposed upon them. (5) Scire facias was the proper remedy to enforce the recognizance after forfeiture had been taken. 6 C. J. 1057-1058; State v. Caldwell, 124 Mo. 509; State v. Hoeffner, 124 Mo. 488. (6) The recognizance should be held binding upon the appellant sureties even though its terms may not conform to the letter of the statute authorizing its execution, and any irregularity which in no way effects the substantial rights of the sureties should be disregarded. State v. Allen, 204 S. W. 722; Section 5019, R. S. 1909; State v. Abel, 170 Mo. 67; State v. Morgan, 124 Mo. 478; 34 Cyc. 543; Gfallegher v. People, 91 111. 590.
   WHITE, C.

This is a proceeding by scire facias to forfeit a recognizance given by Roy Simmons, as principal, and John H. Turley and Grus R. Schuster, as sureties.

May 19,1919, in the Circuit Court of Cooper County, Roy Simmons was ■ convicted of felonious assault, and his punishment assessed at one hundred dollars’ fine. On the 22nd day of May the following recognizance was executed and filed with the clerk of the circuit court in the case:

“Be’it Remembered, that on the 19th day of May, 1919, in the Circuit Court of Cooper County, Missouri, Roy Simmons, the principal in the within recognizance, was tried in said court upon an information filed against him charging him with felonious assault, and that a jury was duly empaneled to try said cause, and said jury returned a verdict assessing a fine against said defendant of one hundred dollars and the costs to be taxed in said cause, and afterwards, to-wit, on the 19th day of May, 1919, the judge of said circuit court, by order duly made, granted a stay of execution to said defendant for ninety days, within which time said defendant is to pay said fine of one hundred dollars and the costs thereof.
“Now, therefore, if the said Roy Simmons, as principal and Gus Schuster and John Turley, as securities, shall pay said fine and costs within ninety days from this date, as provided in said order of said circuit court, then this recognizance shall he void; otherwise to remain in full force and effect in law.
‘ ‘ Roy Simmons (SEAL)
“Jno. H. Turley (SEAL)
“Gus R. Schuster (SEAL)”

On the 20th day of October, 1919', Simmons having failed to comply with the condition s of the bond, a forfeiture was entered.

On the 24th day of January, following, a scire facias was issued, directed to John H. Turley and Gus R. Schuster, sureties in the bond, notifying them to appear January 26th, the first day of the regular January term of court, and show cause why the judgment of forfeiture should not be made absolute. They failed to appear on that date and judgment was rendered against them. At the next May term the sureties appeared and filed a motion to set aside the judgment rendered against them; the motion was sustained, and they filed their answer. The State demurred to the answer, which being overruled, the State filed reply and the cause went to trial June 10, 1919; judgment was rendered against the sureties for the amount of the fine, one hundred dollars, and costs amounting to $75.25. At the time the recognizance was taken there was no order of court entered of record staying execution for ninety days, as recited in the bond. On the motion of the State, before entering judgment on June 10, 1920, the court entered a. nunc pro • tunc order amending the record so as to show that there was a stay of execution for ninety days, ordered May 19, 1919, the date of judgment, whereby Roy Simmons was convicted.

After the judgment rendered as aforesaid, John H. Turley and Gus R. Schuster, in due form appealed to this court. Two principal reasons are advanced for the reversal of the judgrnent: First, that the nunc pro tunc order of the court was not authorized by anything appearing in the record and, without the order of a stay of execution, no valid recognizance could be given; second, that the bond, in form, is not within the provisions of the statute and only provides for a condition which the statute does not recognize.

I. The statute under which the bond was given, Section 5291, Revised Statutes 1909, provides that a court, or a judge or justice thereof, in certain cases, for good'cause shown, may grant a stay of execution for a definite period of time to be fixed by the court granting the same, not to exceed ninety days “upon the defendant or some person for him entering a recognizance conditioned for his surrendering himself in execution" at the time and place fixed by the judgment of such conviction or sentence on a day to be named in such order.”

It will be noted that the bond in this case, set out above, contains no condition that the defendant surrender himself at any time or place, but it is conditioned that he pay a fine of one hundred dollars and costs, and the sureties bind themselves to pay such fine in case of default.

The section of- the statute relating to the forfeiture of a recognizance, Section 5134, Revised Statutes 1909, provides that in ease of failure of the defendant to “appear for trial or judgment, or upon any other occasion when his presence in court may be lawfully rer quied,” his recognizance is forfeited and the court may proceed by scire f(acias to final judgment. It is clear that the condition of the bond in this case is not the one provided for in Section 5291, nor is it conditioned on any failure which would involve a forfeiture provided in Section 5134, so as to authorize a proceeding by scire facias against the sureties.

It is true that a recognizance, given under the statute, is not void so as to prevent the forfeiture, for irregularities for which the recognizance may be amended or omissions which might he supplied. [Newton v. Cox, 76 Mo. 352; State v. Wilson, 265 Mo. 1; State v Hoeffner, 124 Mo. 488.] An obligation of that character, “voluntary in its nature, definite in its terms, and taken for the State to afford the privilege of freedom for the principal therein, upon default being made by the latter, should be held binding upon the sureties, although its terms may not conform to the letter of the statute authorizing its execution.” [State v. Allen, 204 S. W. l. c. 722.]

But the bond in this case, purporting to be taken under the statute for the purpose indicated, is not merely irregular in that it fails to follow the letter of the statute, but is entirely foreign to the statute, and does not contain any conditions upon which such a recognizance may be taken. It is at variance with the statute, not merely in form but in substance and purpose. No proceeding by scire facias to forfeit is provided for. [State v. Stevens, 134 Mo. App. l. c. 119; State v. Crosswhite, 195 Mo. l. c. 14-15; State v. Woodward, 159 Mo. 680.]

It has been held that a recognizance is not vitiated by reason of its containing more than the statute prescribes because “the stipulation in the bond not required by a statute may be rejected as surplusage and the bond still be regarded as a statutory bond.” [Woods v. State, 10 Mo. l. c. 700.] Likewise, when a bond “falls short of the statutory enumeration in such manner as to be more favorable to the party executing it,” such party cannot complain because it contains enough to make him liable for the penalties prescribed. [Flint ex rel. Lumpkin v. Young, 70 Mo. 221, l. c. 226.] Those cases imply that a statutory forfeiture cannot be adjudged for failure to comply with a condition which the statute does not recognize.

The Statute of Jeofails, relating to bonds, Section 5019, Revised Statutes 1909, is mentioned in some of the cases as sufficient to cure irregularities and omissions in statutory recognizances. That section provides that: “No proceeding upon a recognizance shall be defeated . . . on account of any defect of form, omission of recital, condition of undertaking therein,” etc.

In this case the condition of the undertaking provided in, the statute was omitted entirely and a totally different undertaking inserted in the bond. Section 5019 could not correct that defect because the same section concludes as follows:

“So that it be made to appear from the whole record or proceeding that the defendant was legally in custody, charged with a criminal o'ffense, that he was discharged therefrom by reason of the giving of the recognizance, and that it can be ascertained from the recognizance that the sureties undertook that the defendant should appear before a court or-magistrate at a term or time specified for trial.”

' The curative part of that section cannot be applied to a bond unless it is conditioned that the defendant appear at a certain time, as provided in Section 5291. There is no theory upon which the proceeding by scire facias for a forfeiture of a recognizance could be authorized under the statute.

It is therefore unnecessary to inquire whether the nunc pro tunc entry was authorized by the files and record.

II. It may be urged that the bond in this case is at least a common law bond in that it is a voluntary undertaking by the defendants upon certain conditions to do certain things, and the facts show the occurrence of the condition which would make them liable. [State ex rel. v. Frazer, 165 Mo. 242, l. c. 258; State to use v. Cochrane, 264 Mo. l. c. 593-4; Burton Machinery Co. v. Ruth, 196 Mo. App. 450, l. c. 465.] It is unnecessary to determine in this proceeding whether the bond is a common law undertaking upon which the sureties would be liable, because in such case there could be no proceeding of scire facias for a forfeiture under the statute, a proceeding which applies only to a statutory recognizance.

The judgment is reversed.

Bailey and Mosley, GO., concur.

PER CURIAM:

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

All of the judges concur.


author: WALKER, J.

text:
    THE STATE v. MIKE FEELER, Appellant.
    Division Two,
    December 1, 1920.
    1. INFORMATION: Amendment: Spelling of Name. An amendment of the information after the jury had been sworn by inserting the letter “d” in the name of the prosecuting witness so that the name would be spelled “Hodge” instead of “Hoge” was simply a change in matter of form, and defendant’s right was in no wise prejudiced thereby.
    2. TRIAL: Conduct of Judge. Petulant remarks by the trial judge, evincing impatience at the prolix manner in which the witnesses were being examined, do not alone constitute’ prejudicial error.
    3. INSTRUCTION: Deadly Weapon: Beer Bottle. The deadliness oí a beer bottle may be presumed from the wound inflicted upon the prosecuting witness when he was struck upon the head, felled to the floor and his skull fractured; and therefore it was unnecessary for the instruction to submit the question whether or not said beer bottle was a dangerous and deadly weapon.
    4. -: Malice: No Evidence. An instruction for defendant based on the assumption that the offense was committed without malice should be refused where there is no evidence to sustain the assumption.-
    5. REMARKS OF COUNSEL: Preserved for Review. To preserve for review remarks of the prosecuting attorney, alleged to have misled the jury and to have induced a verdict of guilty, the trial court should be asked to order a withdrawal of the remarks from the consideration of the jury or to reprimand the attorney, unless the improper remarks are such that their withdrawal would not cure their injurious effect.
    6. -: Sentence to Reform School. A remark by the prosecuting attorney in his closing argument to the jury that if defendant was under the age of eighteen years and was convicted he would be sent to the Reform School and not to the Penitentiary, was not such error as will authorize a reversal, where no such statement of the law, although not a misstatement of it, was included in the instructions, and the punishment meted out by the jury was the minimum authorized by law; for the verdict being sustained by ample testimony, there is no basis for a conclusion that but for the remark the jury would not have found defendant guilty.
    Appeal from Maries Circuit Court. — Hon. J. G. Slate, Judge.
    Affirmed.

      F. H. Farris and J. A. Watson for appellant.

      Frank W. McAllister, Attorney-General and C. F. Le Mire, Assistant Attorney-General, for respondent.
    (1) The information is sufficient. The court did not err in permitting the amendment of which appellant complains. State v. Walton, 255 Mo. 240; State v. Loesch, 180 S. W. 878; State v. Sillbaugh, 250 Mo. 312; State v. Keener, 225 Mo-. 494; Secs. 4970, 5061, R. S. 1909. (2) The court did not err in permitting the State to inquire as to the matter of flight by the defendant immeriately after the commission of the crime'. State v. Harris, 232 Mo. 320; State v. Spaugh, 200 Mo. 599; State v. Adler, 146 Mo. 26. (3) Remarks by the court objected to do not constitute reversible error. State v, Walton, 255 Mo. 244; State v. Rasco, 239 Mo. 577. (4) The remarks of the prosecuting attorney complained of in the motion for new trial do not constitute reversible error. State v. Armstrong, 167 Mo. 271; State' v. Emery, 76 Mo. 349.
   WALKER, J.

Appellant was charged by information in the Circuit Court of Maries County with an assault with intent to kill under Section 4481, Revised Statutes 1909.

The assault was committed at a social gathering at which there was dancing. Aaron Hodge, who was as-suited, had a quarrel with Lincoln Feeler, the brother of the appellant, as to their respective rights to dance in a set then being formed. Hodge struck at Lincoln with his fist, and the latter ran off of the floor. A short time thereafter, while Hodge was standing talking to a young woman with whom he was dancing, the appellant came up and struck him on the head with a beer bottle. Hodge was felled to the floor by the blow, and appellant ran up, kicked him and fled. When Hodge was lifted from the floor he was unconscious and was bleeding from his mouth and ears. A subsequent examination disclosed that his skull had been fractured. The wound thus inflicted did not prove-fatal, and after several weeks’ confinement, during which time he was under medical treatment, he partially recovered and testified at the trial.

Not only had there been no controversy between appellant and Hodge, but it does not appear that they had at that gathering been in each other’s immediate presence before the assault.

Upon a trial the appellant was convicted as charged and sentenced to two years’ imprisonment in the penitentiary. From that judgment he appeals. mitting the prosecuting attorney to amend ^le information after the jury had been sworn by the inserting in the information

I. It is urged that error was committed in per-of the letter “d” in the name of the prosecuting witness so that the same would be spelled “Hodge” instead of “Hoge.”

It is provided in our Statute of .Jeofails regulatory of criminal procedure that “an information may be amended in matter of form or substance at any time by leave of court before trial, and on the trial as to all matters of form and variance, at the discretion of the court when the same can be done without prejudice to the substantial rights of the defendant on the merits”, etc. [Sec. 5061, R. S. 1909.] The test, as disclosed by this court in State v. Walton, 255 Mo. l. c. 242, as to whether a defendant is prejudiced by the amendment of an indictment or information is whether a defense under the charge as originally made would be equally available after the amendment and whether any evidence for defendant would be equally applicable as well as before amendment. The amendment here made simply changed the spelling of the name of the person assaulted and was a matter of form (Rasmussen v. State, 63 Wis. 1, 22 N. W. 825; 22 Cyc. 441); and a defense under the information as originally drawn would be equally applicable after the amendment. It does not appear, therefore, that the defendant was in any wise prejudiced by the amendment, and this is the gist of the test, stated.

In State v. Loesch, 180 S. W. 875, in applying the statutory rule above cited, we held that an information charging the defendant with obtaining money under false pretenses might be amended so as to allege that the property conveyed was owned by the grantors at the time of the conveyance.

In State v. Sovern, 225 Mo. 580, an information for an assault with intent to kill improperly charged the accused with inflicting the wounds upon himself. An amendment was permitted striking out the name of the accused as thus employed and inserting the name of the injured paidy. While this rule was under the general statute of jeofails (Sec. 5115, R. S. 1909), it was likewise authorized by the statute first cited (Sec. 5061, R. S. 1909), which by its terms not only declares the general Statute of Jeofails applicable to informations as well as indictments, but makes express provision as to the manner in which the former may be amended. Our reports are replete with cases discussing the various amendments that may be made under these statutes. That the amendment complained of is clearly within their purview there seems to be no doubt. This contention is therefore overruled.

II. The objections as to errors in the admission of testimony were not made in such a manner or so preserved as to entitle them to a review.

III. The remarks of the trial judge are complained of. While somewhat petulant at times and evincing impatience at the prolix manner in which the witnesses were being examined, a careful review does not disclose any remark which by reasonable intendment can be construed as prejudicial.

IV. All of the instructions given on behalf of the State, designated numerically, are alleged to be erroneous. Numbers one, two and three were on the ,. „ . , ,, presumption of innocence and reasonable doubt. Number four defined the crime as charged under the statute and prescribed the punishment. Number five was in reference to the credibility of witnesses. Number six defined the technical terms employed in charging an offense of this nature. Number seven was as to the presumption arising from the use of' a deadly weapon at some vital point. Number eight told the jury that no opprobrious or abusive words would justify an assault. These instructions were in the forms which have befen repeatedly approved by this court in cases of this character and are not subject to valid criticism.

If it be contended that instruction numbered four was erroneous in not submitting to the jury the question as to whether or not the beer bottle with which the assault was committed was a dangerous ' and deadly weapon, it will suffice to say that the wound inflicted was of such a nature that the deadliness of the weapon might be presumed and it was unnecessary therefore to submit that question to the jury. This subject was exhaustively discussed by this court in State v. Keener, 225 Mo. 488, in which we held that “an instruction which told the jury that ‘he who wilfully, that is, intentionally, uses upon another at some vital point a deadly weapon, to-wit, a knife, must, in the absence of qualifying facts, etc. ’ is not reversible error in that it assumes that the knife is a deadly weapon, in view of the fact that the evidence shows that the wounds inflicted were dangerous. ’ ’

As we said in State v. Harris, 209 Mo. l. c. 438, “the" uniform construction placed by this court upon the first clause of Section 1847 (now Sec. 4481, R. S. 1909) has been that it is not necessary to allege that the instrument with which the defendant stabs another is a deadly weapon; the allegation that the knife with which the defendant in this case stabbed the prosecuting witness was a deadly weapon was unnecessary and can be treated as surplusage, and it was not essential to prove that it was á deadly weapon to sustain the charge in the information, and therefore it was necessary for the court to submit to the jury the question whether such knife was or was not a deadly weapon.”

In State v. Bowles, 146 Mo. l. c. 13, we said that ££a deadly weapon is a weapon or instrument by which death would likely be produced, when used in the manner in which it may appear it was used in the affray. . . . It does not follow because no witness testified to seeing the knife or detailed its exact dimensions, there was no proof as to its dangerous or deadly character. The deadly effect it produced was confirmation strong of its lethal qualities.”

In State v. Ruck, 194 Mo. l. c. 430, as in the instant case, the weapon used was a beer bottle and the court held that the statute does not require that the assault should have been made with a deadly weapon per se; that it was for the jury to determine under the facts in the case, whether the bottle used was likely to produce death or great bodily harm when aimed at a vital part of the injured person’s body.

In the later case of State v. Miller, 264 Mo. 395, the doctrine announced in the Keener and other cases was affirmed. In the Miller case we held that when the lethal effect of a rock used by the defendant was shown, it was unnecessary to charge that the offense was committed with a deadly weapon and if such words were used that they were to be considered as surplus-age and direct, proof of the nature of the weapon dispensed with. To a like effect is our ruling in State v. Wansong, 271 Mo. 50. Prom all of which it follows that the instruction numbered four correctly states the the law.

The instruction asked by the appellant and refused, designated as “A,” was based upon the assumption that the offense was commited without malice. There was no evidence to sustain this assumption and the instruction was therefore properly refused.

Remarks ofAttorney. °f Y. It is contended that the prosecuting attorney committed error in his closing argument, in stating to the jury that if the defendant was under the age of eighteen years and was convicted he would be sent to the Reform School and not to the Penitentiary. This was attempted to be preserved for review by a general objection. We have held that to preserve an error of this nature for review the court should be asked to order the withdrawal of the remark from the consideration of the jury or reprimand counsel. [State v. Carryer, 180 S. W. 850; State v. Clinkenbeard, 185 S. W. 553; State v. Webb, 254 Mo. l. c. 434.] It is only where the improper remarks are such that if excluded they will not cure the injury complained of that a simple objection will suffice to entitle them to be considered by the appellate court. [Davis v. State, 54 Tex. Cr. 236, 114 S. W. 366.]

“Ordinarily,” says the Supreme Court of Oklahoma, State v. Sturgis, 2 Okla. Cr. l. c. 398, “an objection is simply a protest against a certain line of argument. If the matter is deemed to be of sufficient importance to call for a review by this court, a motion to exclude should be made, and if overruled, an exception should be saved, and the question then comes properly before us for discussion, except as to remarks which are of such a character that their effect cannot be avoided by their withdrawal from the jury.”

If it be granted, however, notwithstanding this rule, that the objection made and exception saved were sufficient to entitle this assignment to a review, we are of the opinion that the remark was not such error as wil] authorize a reversal. It was not a misstatement of the law (State v. Emery, 76 Mo. 348; State v. Armstrong, 167 Mo. l. c. 270), but a declaration in regard to same, while correct as applicable to persons under the age of eighteen years, was not so declared in the instructions and hence could not be considered by the jury. That it was not so considered is evident from the verdict, which conformed to the instructions. In what manner, therefore, can it be said that the appellant was prejudiced, especially as the punishment meted out to him by the jury was the minimum authorized by law? In the presence, therefore, of this verdict, sustained, as it is, by ample testimony, and in the absence of anything more than the making of the remark, there is no authority for the conclusion evidently sought to be made by this assignment, that but for the remark the jury would not have found the appellant guilty. We therefore overrule this contention.

An examination of the record and bill of exceptions discloses no error authorizing a reversal and the judgment is therefore affirmed.

All concur.