text:
    THE STATE v. BERT ANDERSON, Appellant.
    Division Two,
    November 21, 1905.
    1. ST. LOUIS COURT OF CRIMINAL CORRECTION: Jurisdiction. The St. Louis Court of Criminal Correction is a court of limited jurisdiction; no jurisdictional intendments or presumptions are to be indulged in its favor, and no matters are to be held within its jurisdiction except such as expressly appear to be so. Under the act creating it, the jurisdiction of said court is limited to misdemeanors committed in the city of St. Louis.
    2. INDICTMENT: Common Law Meaning: Constitutional Provision. The word “indictment” as used in section 12, article 2 of the Constitution (as amended), which provides that “no person shall be prosecuted criminally for felony or misdemeanor otherwise than by indictment or information,” etc., must be understood as having been inserted in the Constitution with the meaning attached to it at common law. And that was an accusation by the oaths of twelve (now at least nine) men of the county wherein the offense was committed.
    3. -: Information: Subject to Same Rules. A proceeding by information can not be of broader scope than that by indictment, and since an indictment must be returned by a grand jury of the county in which the offense was committed, so also must an information be lodged in the county of the crime.
    4. OFFENSE COMMITTED ON BOARD VESSEL: Sec. 2413, R. S. 1899, Unconstitutional. Section 2413, Revised Statutes 1899, providing that “when any offense shall have been committed . . . on board of any vessel or in any railroad car ... an indictment for the same may be found, and a trial and conviction thereon had, in any county through which or part of which such vessel or railroad car shall be navigated . . . or in the county where such voyage or trip shall terminate, in the same manner and with like effect as in the county where the offense was committed” — is invalid, being in conflict with' section 12, article 2, of the Constitution, which, properly interpreted, requires an indictment to be returned, and an information to be filed, in the county where the offense was committed.
    Appeal from St. Louis Court of Criminal Correction.— Hon. Hiram N. Moore, Judge.
    Reversed.

      John A. Gernes and Albert G. Davis for appellant.
    (1) Section 2413, Revised Statutes 1899, invoked by the State to confer jurisdiction upon tlie St. Louis Court of Criminal Correction, is unconstitutional, being repugnant to sections 12 (as amended) and 22, article 2, Constitution of Missouri. State v. Kelm, 79 Mo. 515; Ex parte Slater, 72 Mo. 102; State v. McGraw, 87 Mo. 161; State v. Hatch, 91 Mo. 568; State v. Smiley, 98 Mo. 604; In re McDonald, 19 Mo. App. 370; State v. Dougan, 30 Ark. 41; State v. Dempsey, 94 Ga. 766; People v. Buckrice, 110 Ill. 29; State v. Armstrong, 41 Tenn. 339; State v. Lowe, 21W. Ya. 783; State v. Craig, 50 Tenn. 227. (2) The Court of Criminal Correction does not proceed according to the course of common law, and has no jurisdiction except when expressly given. There is no presumption in favor of the jurisdiction of this court. Ex parte O ’Brien, 127 Mo. 477; State ex rel. v. Murphy, 132 Mo. 382.

      Herbert 8. Hadley, Attorney-General, and Frcmk BlaJce, Assistant Attorney-General, for the State.
    The lawmaking power of the State of Missouri has the same right to.provide where criminal offenses shall be punished as the Parliament of England had at common law. Similar statutes in other States have been upheld, as has the section in controversy in Missouri. Steerman v. State, 10 Mo. 317; State v. Timmens, 4 Minn. 325; Nash v. State, 2 Iowa (Green) 286; People v. Hulse, 3 Hill (N. Y.) 309; Watt v. People, 126 Ill. 9. It is conceded that if prior decisions of this court, handed down since Steerman’s case, are followed, section 2413, as well as other sections of article 10, Revised Statutes 1899, changing the venue in criminal cases, are void. But a history of the common-law system of prosecuting crimes will show that the common-law rule was not in 1607, and is not now, that all crimes are local, and can be prosecuted only in the county where committed. The English rule was and is that crimes are to be prosecuted in the county where Parliament provides they shall be prosecuted. This was the rule in vogue at common law in 1607, and was adopted by Missouri as part of the common-law system. The old Latin maxim, “Ratio est anima legis,” can well he applied to this case, and, if it is applied, Steerman’s ease will he followed, the constitutionality of section 2413 will he again sustained, the judgment of the lower court will be affirmed, and the appellant will be punished for an offense which he admits he perpetrated.
   FOX, J.

This cause is here upon appeal from a judgment of conviction in the St. Louis Court of Criminal Correction. This criminal prosecution is predicated upon an information by the prosecuting attorney of the St. Louis Court of Criminal Correction, duly verified as provided by law and thus charges the offense:

“Chas. P. Williams, prosecuting attorney of the St. Louis Court of Criminal Correction, now here in court, on hehalf of the State of Missouri, information makes as follows:

“That on and prior to the 2nd day of October, 1904, the ‘Corwin H. Spencer’ was a steamboat engaged in navigating that portion of the river Mississippi which lies between the northern and southern boundary lines of the State of Missouri; that on the said last-mentioned day the said steamer was making a voyage or trip along said river wholly between the boundaries aforesaid, and in the course of the said voyage was navigated through a part of the city of St. Louis, State of' Missouri; that the said voyage or trip terminated within the city of St. Louis aforesaid; that on the said steamboat, in the course of the said voyage or trip, one Bert Anderson did willfully and unlawfully set up and keep a common gaming house on said steamboat, for the purpose of playing a game of chance, commonly called a ‘cloth game’ (a game played by means of a table covered with a cloth and nine dice), for money and property, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State.

“Second Count. — Chas. P.. Williams, prosecuting attorney of the St. Louis Court of Criminal Correction, now here in court, on behalf of the State of Missouri, further information makes as follows:

"That on and prior to the 2nd day of October, 1904, the ‘Corwin H. Spencer’ was a steamboat engaged in navigating that portion of the river Mississippi which lies between the northern and southern boundary lines of the State of Missouri; that on said last-mentioned day the said steamer was making a voyage or trip along said river wholly between the boundaries aforesaid, and in the course of the said voyage was navigated through a part of the city of St. Louis, State of Missouri; that the said voyage terminated within the city of St. Louis aforesaid; that on the said steamboat, in the course of the said voyage or trip, one Bert Anderson did play with Charles Madsen, T. Bolger, and divers other persons to this affiant unknown, for lawful money of the United States, a certain game of chance played with and by means of a table covered with a cloth and nine dice, which said table and set of dice were used in playing a game of chance, commonly called the ‘ cloth game, ’ contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State."

The validity of this information was challenged by motion to quash upon the following grounds:

‘ ‘ That in neither of the counts of this information is it alleged that the offense complained of was committed within the city of St. Louis.

“That in neither of the said counts of said information are facts sufficient recited to show that the St. Louis Court of Criminal Correction has jurisdiction of the offense complained of.

“That neither of the said counts of the information states facts sufficient in law to constitute an offense.

“That both of the counts of the information are vague, indefinite and uncertain, and neither inform the-defendant of the offense with which he stands charged, nor where said offense was committed.

“That if it is sought to confer jurisdiction upon this court by reason of section 2413, Revised Statutes of Missouri 189-9, then neither count pleads facts sufficient to bring the offense within such statute, and, further, such statute is unconstitutional as violative of section 12 (as amended) and 22, article 2, Constitution of this State.”

This motion was by the court overruled and the trial proceeded before the court without the intervention of a jury.

It is unnecessary to detail the evidence introduced; it is conceded that the gambling was done, as charged, upon the steamboat Corwin H. Spencer, engaged in the excursion business on the Mississippi river, and the facts establish, beyond dispute-, that the gambling on this boat with which defendant is charged in the information, was not within the limits of the city of St. Louis.

The cause being submitted to the court, sitting as a jury, the defendant was found guilty as charged in the second count of the information, and his punishment assessed at a fine of fifty dollars. Motion for new trial was filed and by the court overruled, and judgment rendered against the defendant in accordance with the finding of the court. Prom this judgment defendant prosecutes this appeal, and the record is now before us for consideration.

OPINION.

It is apparent that the record in this cause presents for our consideration but two propositions:

1. The jurisdiction of the St. Louis Court of Criminal Correction, under the act creating said court, to try the misdemeanor charged in the information.

2. The validity of section 2413, Revised Statutes 1899.

It is conceded that the misdemeanor for the commission of which it is sought to prosecute the defendant, was committed outside of the city of St. Louis. With this concession we approach the consideration of the first proposition, as to whether or not the St. Louis Court of Criminal Correction, under the act creating such court, is vested with jurisdiction to try a misdemeanor committed outside of the city of St. Louis. Section 13 of the act creating this court (vol. 2, R. S. 1899, p. 2544), provides that such court shall have exclusive original jurisdiction of all misdemeanors under the laws of the State committed in St. Louis city. This court, in Ex parte O’Brien, 127 Mo. l. c. 487, very clearly defined the powers of the court of criminal correction under the provisions of the act creating it. It was there said:

"The court of criminal correction is a court of record, according to the terms of section 2, page 2152, Revised Statutes 1889. But, though that section says that court ‘shall possess all the powers, and perform the duties, and he subjected to the restrictions of a court of record, according to the laws of this State,’ yet, in order to determine what is the scope of its powers and the extent of its jurisdiction, regard must be had to other sections of the law of its organization, among others, to section 13, which confers on such court a similar jurisdiction to that conferred upon justices of the peace. [1 R. S. 1889, secs. 4055, 4328, 4329, 4359, 4360, etc.] These statutory citations clearly show that the court of criminal correction is a court of limited powers and statutory origin, and one. not proceeding according to the course of the common law. The rule in this State is well established in relation to such courts, that there are no intendments in favor of their jurisdiction, and that no matters are to be held within such jurisdiction except they expressly appear to be so. [State v. Metzger, 26 Mo. 65; Rohland v. Railroad, 89 Mo. 180, and other cases.] ”

Following the rule as announced in this case, Gantt, J., in State ex rel. v. Murphy, 132 Mo. 382, said: “The St. Louis Court of Criminal Correction is of statutory origin. While for some purposes it is denominated a court of record, it is not one proceeding according to the course of the common law."

It is clear that the power and jurisdiction of this court is limited and no presumptions or intendments are indulged in favor of its jurisdiction. Under the terms of the act creating this court, its jurisdiction is limited to misdemeanors under the laws of the State committed in the city of St. Louis, and under the well-settled rules of law so clearly announced in the O’Brien and Murphy cases, to which reference has been made, even though section 2413 be a valid act, no presumption or intendment can be indulged from the provisions of that act which would confer jurisdiction upon the St. Louis Court of Criminal Correction to try misdemeanors committed outside of the limits of the city of St. Louis.

This leads us to the consideration of the second proposition, which involves the constitutionality of section 2413, supra.; this section provides: “When any offense shall have been committed within this State, on board of any vessel or in any railroad car, in the course of any voyage or trip, an examination thereof may be made and an indictment for the same may be found, and a trial and conviction thereon had, in any county through which or part of which such ve'ssel or railroad car shall be navigated or run in the course of the same voyage or trip, or in the county where such voyage or trip shall terminate, in the same manner and with like effect as in the county where the offense was committed.”

It will be noted that the offense charged in the information is a misdemeanor, denounced by the laws of this State prohibiting the betting of money or property upon any sort of a gambling device. In order to confer jurisdiction upon the court of criminal correction to try the offense charged, which was concededly committed outside of the city, the provisions of section 2413 are invoked, and the vital question to be answered is, is this act constitutional and valid?

Briefly stated, section 2413 undertakes to authorize not only the return of an indictment for a criminal offense, but as well a trial and conviction thereon, in a county different from the one in which the offense was committed. If this statute is to be held valid, then we confess there must be some change made in the organic law of the State, or the interpretation of its provisions applicable to the subject now being discussed, as announced in the uniform and unbroken line of decisions by this court, must be departed from and no longer recognized as a correct interpretation of such constitutional provisions.

The spirit of our form of government, as is clearly manifested by the terms and expressions of the Constitution and laws of this State, as well as the judicial interpretation of them, is to surround the citizen, when it is sought to deprive him of his life or liberty in a criminal prosecution, with the protection of all legal and proper safeguards, and in the solution of the proposition now confronting us this overshadowing spirit of our form of government should be fully recognized.

Upon the subject of criminal prosecutions and the method of commencing them, section 12, article 2 of the Constitution of this State, as amended in 1900, provides as follows: “No person shall be prosecuted criminally for felony or misdemeanor otherwise than by indictment or information, which shall be concurrent remedies, but this shall not be construed to apply to cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger." Section 22, article 2, of the Constitution, further provides: “In criminal prosecutions the accused shall have the right to appear and defend, in person and by counsel; to demand the nature and cause of the accusation; to meet the witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf; and a speedy, public trial by an impartial jury of the county.”

These constitutional provisions have frequently had the attention of this court, and as to their true spirit and meaning we are unable to furnish a better or more appropriate answer than is furnished by the well-considered cases treating the provisions now before us. In discussing these provisions of the Constitution, it was said in Ex parte Slater, 72 Mo. 102, that, “These constitutional provisions secure to the citizens charged with a felony, first, the right to have the charge preferred by indictment before he can be tried, and second, the right after indictment to a speedy, public trial by an impartial jury of the county. The word ‘indictment’ as used in section 12, supra, has a well-defined meaning, and must be accepted and understood as having been inserted in the Constitution with the meaning attached to it at common law. It is thus defined: ‘An indictment is an accusation at the suit of the king (or State) by the oaths of twelve men (at the least, not more than twenty-three) of the same county wherein the offense was committed, returned to inquire of all offenses in general in the county, determinable by the court in which they are returned, and finding a bill brought before them to be true.’ The common law definition has been modified in this State by section 28, article 2, of the Constitution, which declares that hereafter a grand jury shall consist of twelve men, any nine of whom concurring may find an indictment. The above definition of the term indictment is fully warranted by the following authorities: ‘Every indictment is to be found by twelve lawful, liege freemen of the county where the crime was committed, returned by the proper officer.’ ” [Citing 5 Bacon’s Abridgment, pages 48 and 52.]

In this same case, in the course of the opinion, the learned judge quoted approvingly Hawkins’ Pleas of the Crown, and Bishop’s Criminal Procedure, where it is said: “It seems to be generally agreed at this day that by the common law no grand jury can indict any offense whatsoever which doth not arise within the limits of the precincts for which they are returned. And upon this ground it has been resolved to be a fatal exception to an indictment that it doth not appear by it that the offense arose within the county or riding or other special division or precinct for which the jury that found it was returned. And, a fortiori, therefore, it must be a good exception that it expressly appears by the indictment that the offense arose in a county different from that for which the jury was returned.” [2 Hawkins’ Pleas of the Crown, sec. 34, p. 313.] “According to common-law doctrine all crimes are local. In other words, the prosecution for them can be carried on only in the county of their commission. A grand jury cannot inquire concerning them except within such county.” [1 Bish. Cr. Proc., sec. 65.]

Proceeding to make a practical application of the rules announced to the constitutional provisions, it was thus presented in that case by this court: "Reading-section 12, article 2, of the Constitution, in the light of the well-understood meaning of the word indictment at common law as modified by section 28, article 2, of the Bill of Rights, and it would read thus: ‘No person shall, for a felony, be proceeded against criminally otherwise than by an indictment, that is, otherwise than by an accusation at the suit of the State, by the oath of nine men (at least, and not more than twelve) in the same county wherein the offense was committed, returned to inquire of all offenses, in general, in the county determinable by the court in which they are returned, and finding a bill brought before them to be trip.’ ”

The section of the statute in judgment in the Slater case was section 1804, Revised Statutes 1879, which undertook to authorize the judge of the circuit court, where an impartial grand jury could not be had in the county where the offense was committed, to order an examination of the offense to be had in some county adjacent to the said county where the offense was committed. In accordance with the views as expressed in that case, this court held that section of the statute unconstitutional. The principles announced in that case, in respect to prosecutions by indictment, are equally applicable to the procedure by information. In the application of these principles to an information, it was said by this court in State v. Kelm, 79 Mo. 515: “In Ex parte Slater, 72 Mo. 102, this court held that the word ‘indictment,’ as used in said section, ‘has a well-defined meaning and must be accepted and understood as having been inserted in the Constitution with the meaning attached to it at common law.’ The court then quoted from Bacon’s Abridgment and other comm on - law text-writers to show what were -the qualities and incidents of an indictment as employed in the ancient proceedings. This being unquestionably a correct construction of the term ‘indictment’ as used in the Constitution, it must follow that the term ‘information,’ as employed in the same section, should be .subjected to the same common-law meaning.”

It is clear that under the constitutional provision a proceeding by information cannot be of any'broader scope than that by indictment, and if an indictment must be returned by the grand jury of the county in which the offense was committed, it logically follows that the information must be lodged in the county in which the offense was committed.

The proposition embraced in the provisions of section 2413, which authorizes the return of an indictment for a criminal offense and a trial and conviction upon it in a county other than the one in which the offense was committed, is not one of first impression, or by any means a new question in this court. The principle involved has had the careful consideration of this court in numerous other cases, upon statutes undertaking to authorize the commencement of criminal proceedings for the commission of offenses in counties other than the one in which the offense was committed, and this court, following and approving the principles announced upon this subject in Ex parte Slater, supra, has uniformly held such statutes invalid on the ground of being violative of the provisions of the Constitution of this State. In State v. McGraw, 87 Mo. 161, Ex parte Slater was approved and followed, and so much of section 1691, Revised Statutes 1879, as authorized a person committing burglary in one county to be indicted and tried for that offense in another county, was declared unconstitutional and invalid.

In State v. Hatch, 91 Mo. 568, it was said, Sherwood, J., speaking for the court: “The evidence shows very clearly and conclusively that the offense was not committed in the city of St. Louis. This case, therefore, falls within the principle announced in Ex parte Slater, 72 Mo. 102, and in that of State v. McGraw, 87 Mo. 161; that principle being that, under the present Constitution of this State, it does not lie in the power of the Legislature to authorize the prosecution of a crime in a county other than that in which it is committed. In the case last cited, it was ruled that so much of section 1691 as authorized the crime of burglary to be punished in any other county than the one in which the offense was committed, was constitutionally invalid. Por like reasons, it may now be ruled that section 1698, which authorizes an indictment to be found in either of two or more counties, where it is a matter of doubt, etc., in which one it was committed, and gives the court of the county where the indictment is found jurisdiction of the offense, is likewise obnoxious to constitutional objections.”

To the same effect is State v. Smiley, 98 Mo. 605, where a section of the statute was held invalid that sought to authorize the return of an indictment for bigamy in a county where the defendant was apprehended, instead of the county where the bigamous marriage took place.

The conclusions of this court upon the constitutional question announced in the cases herein cited, not only find support in the decisions of the appellate courts of Georgia, Tennessee, Illinois, West Virginia and Arkansas, but their correctness is emphasized by the construction of the framers of the Constitution of 1865 and 1875. Section 12, article 11, of the Constitution of 1865, provides that, "The General Assembly shall provide by law for the indictment and trial of persons charged with the commission of any felony, in any county other than that in which the offense was committed, whenever, owing to prejudice, or any other cause, an impartial grand or petit jury cannot be impaneled in the county in which such offense is committed." And as was said by this court in the Slater case: The Constitution of 1820 contained no such provision as the above, and the incorporation of it in the Constitution of 1865 is persuasive, if not conclusive evidence, that the framers of that instrument believed that the General Assembly, without such power was expressly conferred upon them, could not exercise it.” Then followed the Constitution of 1875, the framers of which, doubtless following the spirit of our form of government, looking well to the safeguarding of the rights of the citizen, refused to sanction the provisions of the Constitution of 1865, which authorized the indictment of the citizen in any county other than the one in which the offense was committed, and this provision was omitted from onr present Constitution.

Learned counsel representing the State in this cause has earnestly and very ably presented respondent’s side of this case. We have read with a marked degree of interest his presentation of the propositions involved, and, were they original propositions and open questions in this state, the able and exhaustive brief now before us would not only attract our attention, but demand a careful consideration. With commendable frankness it is said by counsel for the State that if the cases herein cited are to be longer followed and approved, section 2413 must fall, for the reason that it is violative of the provisions of the Constitution of this State.

We have indicated our views upon the legal propositions presented by the record, which results in the conclusion that the judgment in this cause should be reversed and the defendant discharged, and it is so ordered.

All concur.


source: Caselaw Access Project

author: FOX, J.

license: Public Domain

text:
    THE STATE v. CHARLES CLARKE, Appellant.
    Division Two,
    November 21, 1905.
    Appeal from St. Louis Court of Criminal Correction.— Hon. Hiram N. Moore, Judge.
    Reversed.

      John A. Gernes and A. G. Demis for appellant.

      Herbert 8. Hadley, Attorney-G-eneral, and Frank Blake, Assistant Attorney-General, for the State.
   FOX, J.

The same propositions are involved in this case as were presented in State v. Bert Anderson, ante, p. 134.

Adopting the views, as well as the conclusions reached in that case, the judgment in this cause will be reversed and the defendant discharged.

All concur.


text:
    THE STATE v. CHARLES MEYERS, Appellant.
    Division Two,
    November 21, 1905.
    Appeal from St. Louis Court of Criminal Correction.— Eon. Hiram N. Moore, Judge.
    Reversed.

      John A. Genes and A. G. Davis for appellant.

      Herbert 8. Hadley, Attorney-General, and Frank Blake, Assistant Attorney-General, for the State.
   FOX, J.

The same propositions are involved in this case as were presented in State v. Anderson, ante, p. 134.

Adopting the views, as well as the conclusions reached in that case, the judgment in this cause will he reversed and the defendant discharged.

All concur.


text:
    THE STATE v. GEORGE GORMAN, Appellant.
    Division Two,
    November 21, 1905.
    Appeal from St. Louis Court of Criminal Correction.— Hon. Hiram N. Moore, Judge.
    Reversed.

      John A. Gernez and A. C. Davis for appellant.

      Herbert 8. Hadley, Attorney-General, and Frcmk Blake, Assistant Attorney-General, for the State.
   FOX, J.

The same propositions are involved in this case as were presented in State v. Anderson, ante, p. 134.

Adopting the views, as well as the conclusions reached in that case, the judgment in this cause will be reversed and the defendant discharged.

All concur.


author: GANTT, J.

text:
    THE STATE v. LOUIS EATON, Appellant.
    Division Two,
    November 21, 1905.
    1. APPELLATE JURISDICTION: Correcting Circuit Court's Record: Nunc Pro Tunc. Notwithstanding an appeal from a judgment of the circuit court is pending in the Supreme Court, the lower court still retains full power and jurisdiction over its own records, and may, by proper entries nunc pro time, cause the same to speak the truth where by inadvertence or misprision of its clerk it has not done so; but the appellate court cannot cause the record of the circuit court to be corrected by an entry mine pro tune. And, hence, a motion to have this court correct the record of the circuit court so as to show that an order extending the time for the filing of the bill of exceptions was made before a previous extension had expired, will be denied.
    2. BILL OF EXCEPTIONS: Filing: Expiration of Time. When the time for filing a bill of exceptions has expired, neither the court nor the judge nor the parties can make any further extension.
    3. COURTS: Jurisdiction: Presumption: Powers in Vacation. While presumptions are often indulged in favor of the jurisdiction of courts of record, as such, yet the powers executed by a judge in vacation are exceptional, and must find express statutory authority, or be such as have from time immemorial been recognized as inherent in the office of judge.
    4. BILL OF EXCEPTIONS: Extending Time for Filing: Presumption. On the 17th of May the court granted to defendant until the 17th of August to file his bill of exceptions. The record of the circuit'court recites: “And now on this 17th day of August, in vacation, comes the defendant by his attorneys and files in the office of the clerk of the circuit court” an order by the judge of said court, in vacation, extending the time for filing the bill of exceptions to November 1st. The order itself bore no date, and contained no recital of the time when it was made. Held, that the appellate court cannot presume that the order extending the time was made before the original leave to file expired, but the burden was on the defendant to see to it that the extension was filed before the time expired, or that the order of the judge was dated or recited a time before the original time expired.
    5. CONTINUANCE: Refusal Waived. The refusal of the court to grant a continuance is waived by not assigning it as a ground for a new trial.

      6. INSTRUCTIONS: No Exceptions. The appellate court can not consider alleged errors in the giving of instructions, when no exceptions are saved at the time to the action of the court in giving, them.
    7. BILL OF EXCEPTIONS: Correcting. When a bill of exceptions is signed by the judge and filed by the clerk, it is a finality, and errors therein cannot then be corrected.
    8. MURDER: First Degree: Sufficiency of Evidence. The evidence in this case is held sufficient to justify a verdict finding defendant guilty of murder in the first degree.
    Appeal from Dunklin Circuit Court. — Hon. J. L. Fort, Judge.
    Affirmed.
    J. L. Downing and W. B. Satterfield for appellant.
    The testimony of defendant clearly makes out a case of manslaughter in the fourth degree, and this testimony is amply corroborated by the circumstances and the testimony of the others; it was therefore error when the court failed and refused to instruct the jury on this point. Secs. 1833, 1834, R. S. 1899; State v. Ellis, 74 Mo. 207; State v. McAnally, 87 Mo. 644; State v. Henson, 106 Mo. 66.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) There is nothing before this court, except the record proper, as the bill of exceptions was not filed in time. State v. Thompson, 149 Mo. 439; State v. Britt, 117 Mo. 584; Graham v. Degime, 154 Mo. 88. (2) As no objections were made and no exceptions saved to the giving of the State’s instructions, appellant can not now complain of them. State v. Reed, 89 Mo. 171; State v. Elvins, 101 Mo. 243; State v. Gregory, 158 Mo. 147. (3) The evidence abundantly sustained the verdict for murder in the first degree.
   GANTT, J.

At the November term, 1903, and on the 22nd day of December, 1903, of the circuit court of Dunklin county, Missouri, the grand jury of said county preferred a charge of murder in the first degree against the defendant for the killing of one Frank Huff, on the 5th day of December, 1903.

The defendant was duly arraigned, placed on his trial on the 5th day of May, 1904, and the trial resulted in a verdict of guilty of murder in the first degree. From the record proper, it appears that within four days he filed his motion for new trial and in arrest of judgment, which were overruled, and thereupon he was granted an appeal to this court, and a stay of execution pending his appeal. On the 17th day of May, 1904, the court by its order of record granted the defendant until the 15th day of August, 1904, to perfect a bill of exceptions. The bill of exceptions was not filed within the time allowed, but was filed on the 14th of March, 1905. The Attorney-General, in preparing this case for argument at this term, made the point that there was nothing before the court except the record proper, on the ground that the bill of exceptions was not filed in time. Thereupon, on the first day of this term, the defendant by his counsel moved this court to correct the record in this cause wherein the same relates to the order of the judge of the Dunklin circuit court, the judge before whom said cause was tried, extending the time for filing the bill of exceptions in said cause to November 1, 1904, which was filed in the office of the clerk of the circuit court on the 17th day of August, 1904, for the reasons, first, that said order extending the time for filing said bill of exceptions was made and signed by Judge James L. Fort on the 10th day of August, 1904, and within the ninety days allowed by the court for filing said bill of exceptions; second, because said order was delivered to J. L. Downing, Esq., one of the attorneys of the defendant, by Judge Fort on the 10th day of August, 1904, and the said Downing on the 11th day of August, 1904, deposited the same in the postoffice at Malden, Missouri, in an envelope with the proper amount of postage thereon, and addressed to W. R. Satterfield, Esq., at Kennett, Missouri, hut by reason of the absence of Mr. Satterfield from Kennett, he did not receive said order until the 17th of August, 1904, the day on which said order was filed in the office of the clerk of the circuit court. This motion is supported by the affidavits of Messrs. Downing and Satterfield, tending to establish the cause of the delay in filing said order of the judge of the’ court extending the time of the filing of the bill of exceptions in said cause to November 1, 1904. Whether this motion should be sustained presents the first question of importance in this case. The time originally granted for the filing of the bill of exceptions expired on the 15th day of August, 1904. The statute allowing bills of exceptions to be filed after the term at which such exceptions are taken is section 728, Revised Statutes 1899, and is in these words: "Such exceptions may be written and filed at the time or during the term of the court at which it is taken, or within such time thereafter as the court may by an order entered of record allow, which may be extended by the court or judge in vacation for good cause shown, or within the time the parties to the suit in which such bill of exceptions is proposed to be filed, or their attorneys, may thereafter in writing agree upon, which said agreement shall be filed by the clerk in said suit and copied into the transcript of record when sent to the Supreme Court or Courts of Appeals.”

This court’s jurisdiction in this case is appellate only. We have no power to alter or correct the records of the circuit court. In proper cases and upon sufficient data we may order the circuit court to conform its judgments to the judgment of this court, but it has been ruled that notwithstanding an appeal is pending in this court from the judgment of the circuit court, that court still retains full power and jurisdiction over its own records and might by proper entries nunc pro tunc cause the same to speak the truth where by inadvertence or misprision of its clerk it had not done so; but it is elementary that this court could not cause the record of the circuit court to be corrected by an entry nunc pro tunc, and this is what we are asked to do by this motion.

We are all agreed that we have no power to correct the record of the circuit court. Having reached this conclusion, we are led to consider the effect of denying the motion in this state of the record.

The original grant of time within which to file the bill of exceptions expired on the 15th day of August, 1904, and unless the time had been extended before the last-mentioned date, neither the court nor the judge nor the parties could after that date make any further extension.

The record of the clerk in vacation recites, “And now on this 17th day of August, 1904, in vacation, comes the defendant by his attorneys and files in the office of the clerk of the circuit court the following stipulation extending the time for filing bill of exceptions herein:

“State of Missouri, County of Dunklin.

“In the Dunklin County Court, May term, 1904.

“State of Missouri, v. Louis Eden, defendant.

‘ ‘ To the clerk of the circuit court, county and State aforesaid: It is hereby ordered by the judge of said court, in vacation, that the time for filing bill of exceptions in said cause be extended to November 1, 1904.

“ J. L. Fort, Judge.

“Filed August 17, 1904.”

This order bears no date and makes no recital of the time when it was done. Are we required or ought we to presume it was done before the original grant of time had expired? The omission to date this order or recite the date of its execution was a most unfortunate omission if it was in fact made before the time had expired. The judge was exercising a power to act in vacation. The efficacy of his act depended on whether it was performed before or after the expiration of the time originally granted by the court within which to file the bill of exceptions.

Presumptions are often indulged in favor of the jurisdiction of courts of record, as such, but the powers executed by a judge in vacation are exceptional and must find express authority in statute or be such as have from time immemorial been recognized as inherent in the office of judge.

It is a fundamental principle that courts can exercise judicial functions only at such times and places as are fixed by law, and that the judges of courts can enter no orders in vacation, except such as are expressly authorized by statute. [4 Ency. Pl. and Prac., 337, note 2.] The presumption in this matter must be one of fact, and such a presumption must be based upon the common experience of human conduct and affairs and the connection usually found to exist between certain things. In view of the numerous cases in this court in which circuit judges have attempted to extend the time of filing bills of exceptions after the time allowed by the court had expired, it would be a most violent presumption to presume that an order extending the time in vacation had been made before the time expired. Certainly it would not accord with the common experience of this court in the enforcement of section 728, Revised Statutes 1899.

Being an exceptional act and given only by express statute in this State, we think the burden was on the defendant to see to it that his extension was either filed before the time expired or that the order of the judge was dated as of or recited a time before the original order expired by limitation. It is of grave importance that the records of our courts shall be kept so that all parties interested therein or affected thereby may be able to ascertain by application to the clerk when a judgment has become final or when exceptions have been or will be filed if in vacation. We are unwilling to relax the ordinary rules of diligence in a matter of such importance. Our conclusion is that we are not authorized to indulge the presumption that the order extending that time was made before the original leave to file expired, and as the only date appearing is that of the filing, to-wit, August 17, 1904, the time had expired and the bill of exceptions does not appear to have been filed within the time allowed. There is, therefore, nothing before us for review except the record proper, and there is no contention that the indictment, arraignment or other proceedings on the trial were in any manner erroneous, and as in duty bound upon our examination we have discovered no reversible error.

II. As the life of the defendant is involved in the issue in this case, we have necessarily, in the examination of the record, become acquainted with the grounds upon which a reversal is sought. The first assignment of error is that the circuit court erred in denying defendant a continuance at the May term, 1904, but upon reference to the motion for a new trial this alleged error of the court will not be found among the grounds assigned for a new trial. So that, even if we were to hold the bill of exceptions a proper one, it is clear that the refusal of the continuance was waived by not assigning it as one of the grounds for a new trial. [State v. Mann, 83 Mo. 589; State v. Jewell, 90 Mo. 467.]

Looking further into the motion for a new trial, error was assigned in the giving of instructions for the State and of the court’s own motion, but when we look at the so-called bill of exceptions it appears that no exceptions were saved to the action of the court in giving them. This is accentuated by another motion filed at this term of this court by counsel for appellant, conceding that their bill of exceptions does not contain any exceptions to the giving of the State’s instructions, and stating that by the error of said attorneys said objections and exceptions were omitted, but asking this court for permission to correct said oversight. This, of course, we have no power to grant. If the bill of exceptions had ever become a part of the record, it would have been a finality when signed by the judge and filed with the clerk. [State v. Gartrell, 171 Mo. l. c. 505.] So that, even if the bill of exceptions had been properly incorporated in the record, the instructions given for the State and by the court of its own motion would not be open to review by this court, and hence no harm could accrue by not regarding the bill as a part of the record, so far as these instructions were concerned. Nor did the defendant request the court to instruct on all the law of the case or call its attention to the fact that it had failed to do so, so far as this so-called bill discloses.

The defendant asked two instructions defining murder in the second degree, which the court refused, but no exceptions were saved to their denial, and hence the bill of exceptions, if allowed, would not have availed to obtain a review of this refusal of the court to give these instructions. Thus we have in favorem vitae examined all the assignments of error urged by defendant ’s counsel in the light of the bill of exceptions, which we hold in law constitutes no part of the record. Of this defendant, of course, cannot complain, but we have been moved to do so on account of the grave consequence to defendant. As a matter of right and law defendant had no right to have this bill examined, but when examined it is clear that if it had become a part of the record it would not have availed him anything. The testimony which he has embodied in his so-called bill of exceptions evidences an unusually cold-blooded and deliberate murder of an unarmed and unoffending man.

In a word, it appears that the defendant was a resident of Malden in Dunklin county, and that the deceased Huff and his partner, Ed. Stockhouse, resided at Townley’s Mill, a few miles north of Malden; that on the evening.of the homicide the deceased, Huff and Ed. Stockhouse and two girls by tbe name of Rogers, met in tbe town of Malden, and after remaining there until about nine o ’clock, they started towards the country where they all lived, walking along the railroad track. It was practically conceded that the two young women were of questionable character, and the deceased was with them for an immoral purpose, although Stockhouse denied all knowledge of the bad character of the girls. The deceased, Huff, and Dora Rogers were walking together, and Stockhouse and Annie Rogers, the first couple being in front. In walking along the track they passed the defendant and one Wilson. As the moon was shining they had no trouble in recognizing them. Defendant was sitting down, and Wilson standing up; defendant had a shotgun in his hand, and spoke to deceased and asked where he was going, to which deceased replied, “He was going home;” defendant then said, “ Wait a minute," deceased replied, “ Oh! I guess not,” defendant retorted, “I guess you will,” and then fired. The load took effect in the lower part of the face and neck of the deceased, causing him to stagger and fall. The two girls ran, and defendant then pointed his gun at the witness, Stockhouse, but finally ran away without firing the other bullet. Stockhouse moved deceased to one side of the track, went back to town and reported the shooting to the town marshal and a physician was summoned. The wounded man was moved to the city hall, where he died at three o’clock the next morning. About five o ’clock that morning, defendant was arrested at his home, his two brothers being in the room with him. Defendant admitted at the time that he shot deceased, but said it was caused by his thumb slipping off the hammer of his gun. The defendant then produced his double barrel shotgun, and one barrel was still loaded. On the evening of the homicide and prior to the shooting, defendant brought his gun down to Paxton’s saloon, and got one of the bartenders to take care of it for him; later on, about nine o’clock, the defendant called for his gun and left the saloon; as he left, one witness heard him say, “I will go down and head him off and take him away from them or raise hell with them.”

The defendant in his own behalf testified that he brought this gun down town, left it in Paxton’s saloon, and afterwards called for it; that he and his two brothers and "Will Fisk expected to go hunting. He admitted shooting the deceased, but said that when he told deceased to stop, deceased threw his hand back in his hip pocket, and pushed one of the girls to one side; he says that all the conversation he had with the deceased was to say, “Wait friend;” that when he asked deceased to stop and have a little fun, deceased replied, “We can stop and have a little hell.” He denied making any threats in front of the saloon, and stated that he never knew deceased and Stockhouse prior to that night. He did not intend to do them any harm, but that he went down for the purpose of taking one of the girls away from them, after which he intended going hunting; that when the deceased pushed one of the girls aside and started towards him, defendant started to cock his gun right quick and his thumb slipped off the hammer and it fired. Although the defendant testified that his two brothers and Fisk were nearby when the shooting occurred, neither of them testified at the trial. If these were the facts, and this is the evidence which the defendant has filed with the record in this case, as his bill of exceptions, it abundantly established a case of murder in the first degree. It appears that the defendant with a loaded double-barrel shotgun deliberately preceded in advance of the deceased and his companions to a point on the road which he knew they would pass, and there stationed himself, and when they approached he called to the deceased to stop, and when the deceased declined to do so, without any provocation, he shot and killed him. This testimony indicates the motive, the preparation, the threat, the lying in wait for the deceased, the shooting and the hilling of the deceased without any excuse. It is not surprising that the jury refused to accept the defendant’s theory of accidental hilling, or the other inconsistent defense of justifiable homicide in self-defense. The jury tried the cause, and rendered a verdict of guilty of murder in the first degree, and that verdict was approved by the trial judge, and, as before said, no error appearing in the record proper, and there being no bill of exceptions that we can recognize as such, the judgment is affirmed, and the sentence which the law pronounces is ordered to be executed.

All concur.


text:
    THE STATE v. BROWN, LATRASSE AND TURNER, Appellants.
    Division Two,
    November 21, 1905.
    NO EXCEPTIONS. Where defendant fails to file a hill of.exceptions, and the record proper is free from error, the appellate court will affirm the judgment.
    Appeal from Buchanan Criminal Court. — Ho??-. B. J. Casteel, Judge.
    Affirmed.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
   FOX, J.

This cause is here upon appeal by the defendants from a conviction in the criminal court of Buchanan county of robbery in the first degree. The appellants have failed to file in this court any hill of exceptions, preserving the action of the trial court upon any of the matters occurring during the progress of the trial, hence, there is nothing before this court for review except the record proper.

The conviction of defendants was based upon an information by the prosecuting attorney of Buchanan county, charging them jointly with robbery of the first degree. The information is in due form, properly verified. The record discloses their formal arraignment and pleas of not guilty duly entered. The impaneling of the jury appears to he regular and in accord with the provisions of the statute. They returned verdicts assessing the punishment of the defendants separately as provided by law. Judgment followed in accordance with the verdicts returned. The record apparently is free from any error, and the judgment of the trial court should he affirmed, and it is so ordered.

All concur.


text:
    THE STATE v. WALTER SPARKS, Appellant.
    Division Two,
    November 21, 1905.
    NO EXCEPTIONS. Where no bill of exceptions is filed, there is nothing before the appellate court except the record proper, and if that is free from error, the judgment will be affirmed.
    Appeal from Morgan Circuit Court. — Ho». Jas. E. Hasell, Judge.
    Affirmed.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
   FOX, J.

This cause is here upon appeal by the defendant from a judgment of conviction in the Morgan Circuit Court of an assault with intent to kill. The judgment in this cause is .predicated upon an information by the prosecuting attorney of Morgan county, charging the defendant with an assault with intent to kill one R. E.. Wendleton. The information also charged Frank Sparks and John Hickman, Jr., as being present aiding, abetting, assisting and commanding the said Walter Sparks to do and commit the offense charged. Upon the trial by a jury they returned a verdict of guilty as to Walter Sparks and assessed his punishment at a fine of one hundred dollars, and a verdict of not guilty as to Frank Sparks and John Hickman, Jr.

There was no bill of exceptions filed in this cause preserving the action of the court during the progress of the trial; hence, there is nothing before us for review except the record proper. We have carefully considered the record and find the information properly charges the offense and that the defendant was duly arraigned and entered his plea of not guilty; a trial was had by a jury regularly impaneled, and a verdict of guilty returned, assessing the punishment as heretofore stated. We are unable to discover any substantial error in the record before us; therefore, the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


author: BURGESS, P. J.

text:
    THE STATE v. CRESTON SUBLETT, Appellant.
    Division Two,
    November 21, 1905.
    1. CONTINUANCE: Absent Witness. Where an application for a continuance is based on the absence of a witness for the defendant, and it appears that, though the case had been pending for nearly two years, defendant did not have a subpoena issued for such witness until five days before the day of the trial, and no reason is given in the application why the subpoena was not issued earlier: and it further appears that the evidence of such absent witness, taken at a former, trial, was read to the jury, and that this evidence covered the same facts which the application says the witness would testify to, if present, it cannot be said that the trial court abused its discretion in overruling the application.
    2. EVIDENCE: Hearsay. Defendant’s mother, testifying as a witness in his behalf, after having stated that she'told defendant to leave the country, and that he would not have gone had it not been for her, was asked by defendant’s counsel to state why she told him to leave. Held, that an objection to this question was properly sustained, for the reason that what defendant’s mother may have said to induce him to leave was no justification . for his doing so, was mere hearsay, and inadmissible for any purpose.
    3. SEDUCTION: Promise of Marriage: Corroboration: Instruction. An instruction for the State, in a prosecution for seduction under promise of marriage, which told the jury that before they could find defendant guilty they must believe that the promise of marriage, testified to by the prosecutrix, “has been corroborated by evidence in the cause other than her own testimony, or by the admissions of defendant, or by facts and circumstances such as usually attend an engagement of marriage,” held, not erroneous.
    4. -: -:-: -: Comment on Evidence. An instruction, set out in the opinion, as to corroboration of the promise of a marriage in a prosecution for seduction, held, erroneous, as being a comment upon the evidence, the weight of which was for the consideration of the jury.
    5. -: -: -: Failure to Define. Where defendant in a prosecution for seduction under promise of marriage asks no instruction defining the word “corroborated,” and does not call the attention of the court to its failure to instruct upon the whole case, the failure to define the word is not error.
    6. FLIGHT: Circumstances: Instruction. An instruction for the State authorizing the jury to take into consideration defendant’s flight, in determining his guilt, should not also authorize them to consider the facts and circumstances attending his flight, if they were not brought out by the evidence. And even if they were, defendant himself should have asked an instruction upon that branch of the question if he desired it to be submitted.
    7. STATEMENTS OF ATTORNEYS: Non-Prejudicial. Statements of attorneys in addressing the jury, though beyond the bounds of legitimate argument, will not constitute reversible error if they could not have prejudiced the minds of the jury against the defendant.

      8. NEW TRIAL: Affidavits: Newly-Discovered Evidence: Hearsay. Although the trial court may, in its discretion, consider a motion for a new trial on the ground of newly-discovered evidence notwithstanding the affidavits to the motion áre filed out of time, yet when the matter set forth in the affidavits is merely hearsay and could only be admitted to impeach the prosecuting witness, for whose impeachment no foundation had been laid, the motion is properly overruled.
    9. SEDUCTION: Sufficiency of Evidence. The evidence in this case, which was a prosecution for seduction under promise of marriage, held sufficient to justify a conviction.
    10. LEWIS CIRCUIT COURT: Jurisdiction. On the authority of. State v. Hall, 189 Mo. 262, it is held that the circuit court of Lewis county had jurisdiction of this prosecution.
    Appeal from Lewis Circuit Court. — Hon. E. B. McKee, Judge.
    Affirmed.

      Clay db Johnson, Jerry M. Jeffries and W. A. Mus-setter for appellant.
    (1) The court erred in overruling defendant’s application for a continuance based upon the absence of Foreman, a material witness, for whom a subpoena was duly issued but returned not found. State v. Maddox, 117 Mo. 684; State v. DeWitt, 152 Mo. 86; State v. Anderson, 96 Mo. 250; State v. Hesterly, 182 Mo. 29; R. S. 1899, sec. 2600. (2) The court erred in excluding the testimony of defendant’s mother, showing the cause of defendant’s flight. State v. King, 78 Mo. 557; State v. Walker, 98 Mo. 108; State v. Mellon, 75 Mo. 357; State v. Phillips, 24 Mo. 484; State v. Barham, 82 Mo. 72; State v. MaPoo, 110 Mo. 14; State v. Potter, 108 Mo. 429. (3) The court erred in giving instruction 1 for the State, because it misdirects the jury as to the rule of law regarding the evidence in corroboration of the testimony of the prosecutrix as to the promise of marriage. R. S. 1899, sec. 2631; State v. Reeves, 97 Mo. 673; State v. Hill, 91 Mo. 426; State v. Wheeler, 108 Mo. 665. (4) Instruction 1 for the State is erroneous in that it fails to define what “corroborating” means. State v. Reeves, 97 Mo. 674. (5) Said instruction is erroneous also because there is no evidence on which to base that part of it which authorizes the jury to find that the testimony of prosecutrix as to the promise of marriage has been corroborated “by facts and circumstances such as usually attend an engagement of marriage.” State v. Wheeler, 108 Mo. 665; State v. Mc-Kaskey, 104 Mo. 646. (6) Instruction 6 for the State, on the subject of flight, is erroneous because it fails to direct the jury to take into consideration the facts or circumstances in evidence tending to explain defendant’s flight consistent with his innocence. State v. King, 78 Mo. 557; State v. Walker, 98 Mo. 108; State v. Potter, 108 Mo. 430; State v. Brooks, 92 Mo. 585. (7) The court erred in overruling defendant’s objections to the improper remarks made to the jury by the State’s attorneys. Evans v. Town of Trenton, 112 Mo. 399; Holliday v. Jackson, 21 Mo. App. 670; Mahner v. Linck, 70 Mo. App. 388; Marble v. Walters, 19 Mo. App. 137; Haynes v. Town of Trenton, 108 Mo. 133; State v. War-ford, 106 Mo. 65; State v. Woolard, 111 Mo. 255; State v. Jackson, 95 Mo. 654; State v. Reilly, 4 Mo. App. 395. (8) The court erred in refusing to grant defendant a new trial on the ground of newly-discovered evidence to the effect that prosecutrix had admitted having sexual intercourse with one Adam Zoph. ‘ State v. Wheeler, 94 Mo. 254; State v. Murray, 91 Mo. 103; State v. Bailey, 94 Mo. 316; Howland v. Reeves, 25 Mo. App. 466.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) No error was committed in overruling defendant’s application for a continuance: First, because it fails to disclose proper diligence on the part of defendant; second, defendant failed to state when the knowledge first came to him that the absent witness would testify to the facts therein set forth. State v. Cummings, 88 S. W. 706; State v. Dusenberry, 112 Mo. 291; State v. Kindred, 148 Mo. 281. (2) Prosecutrix testified to the sexual intercourse, and also to the prior promise of marriage. As to the corroboration of the former, there was the evidence of defendant’s admission at a former trial. In addition, we have the preparations made by prosecutrix to marry; and the fact, as testified to by her mother, that defendant kept company with her so much, from February till the last of August. His reason for quitting her company, as testified to by him at a former trial, was not that he heard anything derogatory to her character, but that he got tired of her. In addition, there was the unexplained flight of defendant. The courts have frequently held that evidence to corroborate the promise of marriage may be by circumstances. State v. Hill, 91 Mo. 423; Kenyon v. People, 26 N. Y. 203; Boyce v. People, 55 N. Y. 644; Armstrong v. People, 70 N. Y. 38; State v. Eisenhour, 132 Mo. 147; State v. Dent, 170 Mo. 406; State v. Davis, 141 Mo. 525; State v. Phillips, 185 Mo. 188. (3) State’s instruction 1, which defines the crime of seduction under promise, of marriage and the corroboration necessary, was proper, and has been approved. State v. Wheeler, 108 Mo. 658; State v. Marshall, 137 Mo. 467. State’s instruction 6. on the presumption arising from the flight of defendant was proper. State v. Knowles, 185 Mo. 175. (4) No error was committed by the attorneys for the State during their arguments. It was proper for them to comment on the evidence for the State, and that for the defense, and to draw all proper conclusions therefrom. State v. Zumbunson, 86 Mo. Ill; State v. Taylor, 134 Mo. 158; State v. Emory, 79 Mo. 461; State v. Griffin, 87 Mo. 608; State v. McNamara, 100 Mo. 100; State v. Findley, 101 Mo. 224; State v. Elvins, 101 Mo. 246; State v. Musick; 101 Mo. 273. (5) In his motion for a new trial, defendant alleges as a reason why it should be sustained that he had discovered new and important evidence. All that the parties made affidavit to was- an admission made to them by Adam Zoph and a letter which Zoph said he received from prosecutrix. Clearly this was hearsay, as no affidavit of Zoph was filed. Our law requires that an affidavit be filed by the witness, whose evidence has recently been discovered; otherwise, the application is insufficient. State v. Bowman, 161 Mo. 94; Graham and Wat. on New Trials, 470. This newly-discovered evidence was cumulative and corroborative of defendant’s witness Weisman; it was also contradictory of the prosecutrix and simply tended to impeach her. This was not sufficient. State v. Welsor, 117 Mo. 583; State v. Campbell, 115 Mo. 393; State v. Bybee, 149 Mo. 635; State v. Butler, 67 Mo. 591; State v. Lucas, 147 Mo. 70; State v. Miller, 144 Mo. 30. (6) The evidence of defendant’s guilt is as strong, if not stronger, than the evidence in other similar cases which have met with the approval of this court. State v. Sharp, 132 Mo. 165; State v. Thornton, 108 Mo. 640.
   BURGESS, P. J.

On October 16, 1901, the prosecuting attorney of Lewis county filed an information in the circuit court of said county charging the defendant with seducing and debauching one TIettie May Waterman, under promise of marriage, and stating that she was an unmarried female of good repute and under twenty-one years of age. At the September term, 1903, of said circuit court, the defendant was tried and convicted and his punishment assessed at three years imprisonment in the penitentiary. After unsuccessful motion for a new trial and in arrest of judgment, defendant appeals.

The facts are substantially as follows:

Hettie May Waterman and defendant were schoolmates and had known each other for years. They were quite friendly and were together on different occasions at entertainments,' and visited friends and relatives, in each other’s company, in town and country. On the first Sunday in March, 1901, according to her testimony, they became engaged to be married, but no definite time was fixed for the performance of the marriage ceremony. On June 21, 1901, the defendant took her to Quincy, Illinois, in company with several other young couples. Returning to their homes late in the evening, after dark, they crossed the Mississippi river and then drove home in buggies. Defendant and the prosecutrix rode in the same buggy, and while riding in the buggy he hugged and kissed the prosecutrix and told her how much he thought of her. After fondling her, the defendant assured her that he was going to marry her anyway and that no one would know anything about it should they have sexual connection. She testified that she thought a great deal of him, and finally yielded to his solicitations and had sexual intercourse with defendant thereafter in said county of Lewis. The testimony on the part of the State tended to show that prosecutrix was under nineteen years of age at the time of this sexual intercourse. Defendant continued his visits to her until August, 1901, when he discontinued his visits without giving her any reasons therefor. He did state to others, however, .that it was because he “had gotten tired.” On March 27, 1902, prosecutrix gave birth to a child, of which she testified the defendant was the father. She also testified that she had never had carnal connection with any other man, and she established a good reputation for chastity among those who knew her. She stated also that she made some few preparations for her marriage and had her mother and a few lady friends to assist-her in making some clothes for that purpose. Her mother also testified to the attention of the defendant to her daughter and to his visits to her, and his taking her out with him on different occasions. In October, 1901, after it was discovered that the prosecutrix was pregnant, her two brothers, George and William Waterman, went to see defendant at his home and stated to him that the purpose of their visit was to get him to marry their sister, as he was responsible for her condition. They asked him if he had not promised to marry her. He replied, “Yes, but I don’t know what about marrying her. ’ ’ He afterwards, in the same conversation, told the brothers that he was not going to marry her. There was also evidence tending to show that shortly after this conversation defendant left the country and went to Nebraska and Colorado.

At a former trial of the case defendant testified and admitted having had sexual intercourse with the prosecutrix on their way back from Quincy, as stated by her, and also that he quit going to see her because he got tired of her.

On the part of the defendant, the evidence tended to show that two or three other young men kept company with prosecutrix about the time she and defendant were going together and that one of these young men took improper liberties with her. The defendant’s mother testified upon the trial that she was at her home, a short distance away from her son, when the brothers of the prosecutrix called to see him, and that she did not hear the defendant promise to marry their sister; that they frightened the defendant. She testified also that she was the cause of his leaving the country and that he would not have gone but for her. Defendant testified in his own behalf that he did not promise to marry the prosecutrix and denied that he had ever so stated. There was also evidence of the good reputation of defendant prior to this trouble.

The first question presented for our consideration by this appeal is with respect to the action of the court in overruling defendant’s motion for a continuance on account of the absence of one Fred Foreman, claimed to have been a material witness for defendant. The case had been pending in the circuit court since October 16, 1901, and was set for trial September 22, 1903, but not until September 17, 1903, five days before the day of trial, did defendant have a subpoena issued for the witness. This the State contends was not proper diligence. Applications of this character rest largely in the discretion of the court passing upon them, and will not be interfered with unless it clearly appears that such discretion has been unwisely or oppressively exercised. [State v. Banks, 118 Mo. 117; State v. Dettmer, 124 Mo. 426; State v. Hesterly, 182 Mo. 16.] No reason is given in the application why defendant did not have a subpoena issued for the witness at an earlier date, such as that he was not aware that the witness would testify to the facts set forth therein, until at or about the time he caused the subpoena to be issued for him. Moreover, this witness testified in behalf of defendant upon a former trial of this case and stated, as appears from the court stenographer’s notes taken at the time, the same facts which defendant in his application states he would be able to prove by him if present; and his evidence thus taken was read to the jury by defendant upon the last trial of this cause. Under these facts, we are of the opinion that no error was committed in denying the application.

Mrs. Lillard, defendant’s mother, testified as a witness in his behalf, and, after having stated that she told defendant to leave and that he would not have gone had it not been for her, was asked by defendant to state why she told him to leave. This question was objected to by the State and the objection was sustained. Defendant insists that the court erred in sustaining the objection, because the answer would have tended to show that defendant left on account of the persuasions and commands of his mother. This contention is untenable, for the reason that what defendant’s mother may have said to him to induce him to leave the country was no legitimate excuse or justification for his doing so, was mere hearsay, and inadmissible for any purpose. If, however, defendant had anticipated violence to his person from the populace or from the friends or relatives of the prosecuting witness, and fled the country in consequence thereof, he had the right to show this in explanation of his flight (State v. Phillips and Ross, 24 Mo. 475), hut if to show this was the purpose of defendant, the question propounded did not go far enough, and his counsel should have stated in connection with the question the existence, if such was the fact, of public excitement and feeling in the neighborhood against the defendant in consequence of the offense with which he was charged, or any threatened violence to him by the friends of the prosecution, and that witness knew the facts and advised defendant to leave the country for his safety. But this would not seem to have been the object of the question, and the objection thereto was properly sustained.

The point is-made that instruction numbered one, given in behalf of the State, was erroneous in that it told the jury, with respect to the alleged promise of marriage of defendant to Hettie May Waterman, that before they could find him guilty they must believe from the evidence in the cause that the promise of marriage testified to in this Cause by the said Hettie May Waterman, between her and defendant, “has been corroborated by evidence in the cause other than her own testimony, or by the admissions of defendant, or by facts and circumstances such as usually attend an engagement of marriage." The contention is that the statute (sec. 2631, R. S. 1899) requires that “in trials for seduction under promise of marriage, the evidence of the woman as to such promise must be corroborated to the same extent required of the principal witness in perjury,” which is by two witnesses, and that the admission of defendant that he had promised to marry her was not sufficient, but that it must be shown by other evidence. This question was ruled adversely to defendant’s contention in the recent case of State v. Whit-worth, 126 Mo. 573, wherein a similar statement was held as corroborative of the testimony of the prosecutrix with reference to a previous promise to marry. [State v. Phillips, 185 Mo. 185.] Besides, there was other evidence, from which the promise of marriage might well have been inferred. This finds support in the fact that defendant asked and the court gave an unusually strong instruction upon this branch of the case, in which instruction the jury were told that “they cannot find that there was a promise of marriage upon the evidence of Hettie May Waterman alone, but her testimony must be strongly corroborated by other evidence sufficient to overcome the oath of defendant and the legal presumption of his innocence; that is, the testimony of the prosecutrix, Hettie May Waterman, as to the defendant’s promise of marriage must be supported by strong and clear proof of facts and circumstances sufficient to establish said contract or promise of marriage and entitled to more weight with the jury than the testimony offered by the defendant.” This instruction is erroneous, in that it is clearly a comment upon the evidence, the weight of which was for the consideration of the jury.

The first instruction given in behalf of the State told the jury, in so many words, that before they could convict defendant they must believe from the evidence that he was guilty beyond a reasonable doubt, and this was emphasized in more than one of defendant’s instructions. Therefore, he has no ground for complaint on this score.

It is said for defendant that the court erred in not defining “corroborated” as used in the State’s first instruction; but no such instruction was asked by defendant, nor was the attention of the court called to its failure to instruct upon the whole case. [State v. Cantlin, 118 Mo. 100, and subsequent cases.]

It is claimed that the State’s sixth instruction is erroneous in that, while it authorizes the jury to take into consideration defendant’s alleged flight into the States of Nebraska and Colorado in determining his guilt, it fails to direct the jury to also take into consideration the facts or circumstances in evidence tending to explain his flight consistent with his innocence. In answer to this contention it may be said there was no evidence adduced by defendant upon which to base his contention, nor even if there had been would the instruction be erroneous though it did not embody it, because the defendant had the right to ask an instruction upon the question of his own motion, and that he did not do so was his own fault.

Further complaint is made of the action of the court in permitting the attorneys representing the State, when addressing the jury, to go outside the record, over the objection of defendant, and allude to matters not in evidence, to the prejudice of defendant. That the discussion of some of these matters, without mentioning them specifically, went beyond the bounds of legitimate argument must be conceded, and they should not have been permitted, but we are not inclined to think they in any way prejudiced the minds of the jury against defendant. The statement by one of the attorneys that defendant was the father of the child of the prosecutrix was authorized by her evidence to that effect, and there was no evidence to the contrary.

The testimony of witness Foreman tended to show that he had taken liberties with Hettie May Waterman, and the mere fact that counsel for the State said to the jury that they ought to administer to the defendant such punishment that Foreman, who was afraid to come into court, would not follow in his footsteps, ought not of itself reverse the judgment, especially when it is not thought defendant was prejudiced by reason thereof. While counsel in addressing the jury should confine their remarks to the facts of the case under consideration, as disclosed by the record and the evidence, a judgment should not be reversed and a new trial granted for. every slight transgression by counsel of the character alluded to; but to authorize such a course the court should be satisfied that the improper remarks were prejudicial to the defendant and had some influence with the jury in arriving at their verdict, which we do not think was the case in this instance.

Another alleged error of which complaint is made is the overruling of defendant’s motion for a new trial upon the ground that “defendant has discovered new and material and competent evidence in his behalf since the verdict of the jury, and which evidence he did not discover before the trial, though he used due diligence. ’ ’ The motion for a new trial was filed at the September term, 1903, of said court, and the same was by order of court continued till the next (December) term, 1903. Leave was given defendant to file affidavits in support of said motion on or before November 21, 1903, and leave was given the State to file counter affidavits on or before December 4, 1903. Defendant never made affidavit to the motion till the 26th day of November, 1903, several days after the expiration of the time for filing affidavits. In his affidavit defendant swears that he never learned of this newly-discovered evidence until the 24th day of November, 1903, How he knew of it and why he stated the same as one of the grounds of error in his motion for a new trial (filed two months before) is indeed difficult to understand. Again, the affidavits made by Henry C. Gramm and Arthur Shumate were not filed till November 25 and 26 respectively. All that these parties made affidavit to was an admission made to them by Adam Zoph and statements made by Zoph with respect to the contents of a letter which he claimed to have received from the prosecutrix. Notwithstanding these affidavits in support of the motion were filed out of time, the court clearly had the discretionary right to permit this to be done and to take them into consideration in passing upon the motion; but they were entitled to no weight or consideration, and should not have been allowed to be read in evidence, for the reason that the matter set forth in them was, in the first place, merely hearsay, and in the second place, could not have been properly admitted for any purpose other than to impeach the prosecuting witness by showing that she. had made contradictory statements, for which no foundation had been laid. [State v. Welsor, 117 Mo. 570; State v. Miller, 144 Mo. 26, and authorities cited; State v. Bybee, 149 Mo. 632.] She occupied the same position with respect to her impeachment upon such grounds as any other witness, and it could only be done by laying the proper foundation therefor.

There is no merit in the assumption that the verdict of the jury was the result of bias or prejudice on the part of the jury against the defendant. There is nothing whatever in the record to justify such a charge. Upon the Other hand, there was plenty of evidence, if true, to justify the verdict, and of the truth and weight of the evidence the jurors were the sole judges; besides, the verdict and judgment appealed from was the second against the defendant in this case, which tends to show otherwise than as claimed upon this feature of the case.

A final contention is that the court should have granted defendant a new trial upon the ground that there was no evidence that the alleged offense occurred within the territorial jurisdiction of the trial court. The evidence clearly showed that the offense was committed in Lewis county, in which the court was held, and plainly within its jurisdiction. The same question was passed upon by this court in the recent case of State v. Hall, 189 Mo. 262, and decided adversely to defendant’s contention.

We have given all the points presented by this appeal full consideration, and finding nothing in the record which would justify a reversal of the judgment, it is affirmed.

AH concur.


text:
    THE STATE v. NELSON JOHNSON, Appellant.
    Division Two,
    November 21, 1905.
    INFORMATION FOR MURDER: Fatally Defective. An information charging murder by shooting with a pistol, which fails to allege that defendant, with the leaden balls shot out of the pistol, did strike and penetrate, etc., is fatally defective.
    Appeal from Pemiscot Circuit Court. — How. J. L. Fort, Special Judge.
    Reversed and remanded.

      J. 8. Gossom and B. A. M’Kay for appellant.
    A careful examination of the information will disclose the fact that the pleader has wholly failed to charge a felonious striking, penetrating and wounding. State v. Williams, 184 Mo. 261; State v. Green, 111 Mo. 585; State v. Ferguson 162 Mo. 673; State v. Herrell, 97 Mo. 105; State v. Feaster, 25 Mo. 324; State v. Arnwine, 126 Mo. 567; State v. Rector, 126 Mo. 329.

      Herbert 8. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for the State.
   GANTT, J.

This is a prosecution for murder in the second degree by information filed by the prosecuting attorney of Pemiscot county against the defendant, Tom Johnson, Ed Johnson and Lon Moore for the murder of Elvey Williams. The defendant was separately tried and convicted of murder in the second degree and his sentence fixed at ten years in the State penitentiary.

Prom that conviction he appeals. The information in this case is ideutical with that filed in State v. Williams, 184 Mo. 261, and is fatally defective in that it fails to charge that the defendants, with the leaden halls shot out of the pistol, did strike and penetrate the body of the said Elvey Williams. It was ruled in State v. Green, 111 Mo. 585, that this was an absolutely essential allegation in such a case, and upon the authority of State v. Williams, 184 Mo. 261, and State v. Green, 111 Mo. 585, the information herein must be and is held fatally defective and accordingly the judgment is reversed and the cause remanded in order that a new information may he filed, and the prisoner is remanded to the custody of the sheriff of Pemiscot county to await such action by the prosecuting attorney.

Burgess, P. J., and Fox, J., concur.


text:
    THE STATE v. CLARENCE HEFLIN, Appellant.
    Division Two,
    November 21, 1905.
    NO BILL OF EXCEPTIONS. Where defendant flies no hill of exceptions, the appeal must be determined by the record proper, and if that is free from error, the judgment will he affirmed.
    Appeal from Buchanan Criminal Court. — Ho». B. J. Casteel, Judge.
    Affirmed.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
   GANTT, J.

At the March term, 1904, of the criminal court of Buchanan county, the defendant, Clarence D. Heflin, was indicted for rape, and afterwards, at the June adjourned term of said court for the year 1904, the defendant was put upon his trial and convicted, and Ms sentence assessed at fifty years in the pemtentiary.

His motions for a new trial and in arrest of judgment were filed, heard and overruled, and thereupon he was sentenced to the penitentiary for fifty years. He was granted an appeal to this court and leave given to file a bill of exceptions at the next term of the court.

He filed no exceptions and the appeal before us must he determined by the record proper. The indictment is sufficient and the arraignment and impaneling of the jury, the verdict and sentence being in due and regular form, we find no error in the record, and the judgment is accordingly affirmed.

All concur.