text:
    THE STATE v. VIRGIL WILKS, Appellant.
    Division Two,
    June 3, 1919.
    1. DYING DECLARATION: Introduction: Preliminary Examination. It is a universal rule that a trial court must determine, in the absence of the jury, the preliminary question whether or not the purported dying declaration is admissible. In determining this preliminary question the court must take into consideration the statement itself and the surrounding circumstances, for the purpose of ascertaining whether it was made under proper conditions and whether it is of a character w-hich will render it admissible.
    2. -: Matter Admissible: Conclusion. Statements claimed to be dying declarations are admissible only as to such matters as the declarant might himself testify to were he alive and sworn as a witness. Therefore, a statement of declarant which is a mere conclusion or the expression of an opinion is always incompetent.
    3. -: Received With Caution. Courts invariably receive purported dying declarations with great caution, because of the absence of an opporunity to cross-examine declarant.
    4. -: “Virgil Killed Me:” Conclusion or Fact? Context: Circumstances. A declaration by deceased after he was shot and shortly before he died that “Virgil killed me,” standing alone, might be a statement of fact or an expression of opinion; therefore, the context and the words intimately connected with those words, especially if they explain them, and the entire circumstances under which they were used, are admissible, if the words themselves are.
    5. -: Detaching Context: Contradicted by Further Declaration. Where declarant, having been shot by an unseen person through the window of his bed-room, shortly before he died said to his wife: “You go away from me. Virgil killed me. You and him made it up this afternoon to kill me to-night. They tried to get me when I was on the porch,” it was improper to detach the words “Virgil killed me” from their context and admit them alone, but all the words should have been admitted or all excluded, since the context explains the three words admitted. And if the whole statement or any part of it is admitted, a further declaration made by declarant to his brother that “Charley Wilks shot me, and Virgil and Bill hired him to do it” was admissible to contradict the previous statement made by declarant to his wife, since it explains it and throws light on what was in his mind at the time he made it.

      6. -: Shot by Unseen Person: Identification of Assailant: Conclusion. If the declaration as to the identity of his assailant is an expression of opinion drawn from facts immediately under declarant’s observation, it is admissible; but if the opinion is the result of a course of reasoning from collateral facts, it is inadmissible. In any event, the declaration must be restricted to the identification of the assailant, the act of killing and the circumstances immediately attending the act. So where deceased was shot between 7:20 and 7:30 on the evening of November 21st, there was a lighted lamp in the room, and between him and his assailant was a glass window, a lace curtain and a wire screen, it is apparent that he could not have seen through these obstructions and recognized one standing far enough away to point a gun and fire through the window; and this being true and there being nothing in the declaration itself indicating that he saw his assailant or saw anything to indicate who he was, a declaration made by him shortly before his death that “Virgil killed me” was an expression of an opinion, a mere conclusion, and inadmissible, and its admission reversible error.
    Appeal from Lawrence Circuit Court. — Hon Charles L. Henson, Judge.
    Reversed and remanded.

      William B. Skinner and Patterson & Page for appellant.
    (1) The court erred in refusing to exclude the testimony of Cora Knott as to the alleged dying declaration of deceased. Dying declarations are limited to the circumstance of the killing and by whom; they cannot include what went before or a separate and disconnected fact (with the act of killing) nor can they include ani expression of opinion or belief, but are confined to statement of fact. In all cases it is for the court to pass upon the question of the competency of the statements and to the jury can only be left the degree of credit such declarations are entitled to, the same as any other item of evidence submitted for their consideration. 1 Bishop on Criminal Evidence, 1207, 1216; 1 G-reenleaf, 156; Sherwood, pp. 836-838; Kelley (3d Ed.), par. 278; State v. Simon, 50 Mo. 370; State v. Draper, 65 Mo. 335; State v. Chambers, 87 Mo. 408; State v. Parker, 172 Mo. 191; State v. Spivey, 191 Mo. 110; State v. Zorn, 202 Mo. 12; State v. Crane, 209 Mo. 328; State v. McCannon, 51 Mo. 160; State v. Yansant, 80 Mo. 76; State v. Élkins, 101 Mo. 344; State v. Brown, 188 Mo. 460; State v. Minor, 193 Mo. 613; State v. Horn, 204 Mo. 528. (2) The propriety of the admission of dying declarations is a preliminary question for the determination of the court before they are allowed to go to the jury. "Wharton on Criminal Evidence (9 Ed.), sec. 297; 4 Ency. Evidence, 947; State v. Simon, 50 Mo. 375; State v. Johnson, 118 Mo. 504; State v. Zorn, 202 Mo. 32; State v. Crone, 209 Mo. 328; State v. Johnson,'118 Mo. 502; Lipscomb v. State, 75 Miss. 559. (3) The utmost caution should be exercised by the court in the admission of dying declarations, and the tendency of the courts is to greater stringency, rather than to any relaxation of the rules which permit the admission of this kind of evidence. 4 Ency. Evidence, p. 945. ■ (4) Declaration must be complete to be admissible. 4 Ency. Evidence, p. 985; State v. Johnson, 118 Mo. 491. (5) Failure of witness to hear all that deceased said renders the declaration inadmissible. 4 Ency. Evidence, p. 986. (6) Only such statements are competent as would be competent if' deceased were living and on the witness stand. 4 Ency. Evidence, p. 991; State v. Reed, 137 Mo. 135. (7) A mere expression of opinion or belief by a dying man is not admissible as a dying declaration, and it is immaterial whether the fact that the declaration is a mere statement of opinion appear from the declaration itself or from other undisputed evidence showing that it was impossible for declarant to have known as a fact what he stated. 4 Ency. Evidence, p. 993; State v. Elkins, 101 Mo. 350;\State v. Parker, 96 Mo. 382; State v. Chambers, 87 Mo. 406. (8) The question whether a declaration is opinion or conclusion of deceased is a question for the court. 4 Ency. Evidence, p. 993; State v. Williams, 67 N. C. 12; Binns v. State, 46 Ind. 311; McBride v. People, 5 Colo. App. 91; State v. Hays, 78 Mo. 318; State v. Johnson, 118 Mo. 503.

      Frank W. McAllister, Attorney-General, and Thomas J. Cole, Assistant Attorney-General, for repondent.
    (1) The statement of George Wilks that “Virgil killed me” was admissible as a dying declaration. State v. Rider, 90 Mo. 62; State v. Dipley, 242 Mo. 477; State v. Morgan, 1 Mo. App. 25, 28; State v. Evans, 124 Mo. 408; State v. Bradley, 34 S. C. 136; State Y. Mace, 118 N. C. 1245; Smith v. State, 183 Ala. 23; Baker v. State, 187 S. W. 95; State v. Quick, 15 Rich. (S. C.) 349. (2) The fact that dying declarations are inconsistent with each other does not preclude them, but bears only on their weight as evidence. Moore v. State, 12 Ala. 764; Richards v. State, 82 Wis. 179; White v. State, 30 Tex. App. 655; Comonwealth v. Turner, 224 Mass. 236; 21 Cyc. 991.
   WHITE, C.

The defendant on a trial in the Circuit Court of Lawrence County was found guilty of murder in the first degree. He was charged with having killed his father, George Wilks. From that judgment he appealed to this court.

Virgil Wilks was 21 years old at the time of the trial in September, 1918. There was one previous trial of the case, in which the jury disagreed. George Wilks was 64 years of age, a farmer, and lived about five miles west of the City of Aurora, and about two miles north of Verona, in Lawrence County. He had a number of children, all of whom had married and left home, with the exception of Virgil. At the time of his death, November 21, 1917, his family consisted of himself, his wife, Virgil, and a hired boy 17 years of age by the name of Sid Pilkerton.

George Wilks lived in a house, fronting east, consisting of seven rooms. A southeast front room was the sitting-room; just west of that.was the dining-room, and then the kitchen. On the north side of the house was the parlor in the northeast corner, and back of that three bed-rooms occupied the space to the rear of the house. Two of these bed-rooms opened into the dining-room, and the third one opened into the kitchen. George Wilks occupied the middle bed-room opening into the dining-room. On the evening of his death, November 21, 1917, the family ate supper as usual. Virgil Wilks left the table first, went out and hitched his horse to his buggy, and drove away. Soon after, Mr. Wilks passed from the dining-room into the sitting-room, and read the morning papers, which had arrived by the afternoon mail; Mrs. Wilks washed the dishes, and came into the room where he was; Sid Pilkerton went to bed in the room opening off the kitchen. Wilks, after reading the paper, went through the dining-room into his bed-room. Soon Mrs. Wilks heard the crash of glass, and other people in the neighborhood heard a shot. She and Sid Pilkerton rushed into the dining-room and found Mr. Wilks lying on the floor. He had been shot in the stomach while in the act of undressing in his bed-room, had run into the dining-room, and had fallen there. He had one pants-leg off and one on at the time he was found. He had been shot from outside of the. house, through the window of his bed-room; the shot passed through a wire screen, broke the glass of the window, and tore a hole through a lace curtain. There was ■ evidence to show that the shot was fired so close to the window that powder stains were found on the outside of the screen. The time at which the shot was fired was variously stated by the witnesses to be somewhere between 7:20 and 7:30 o’clock. Wilks died about 8:45 from the effect of the wound.

The evidence offered to connect Virgil with the murder of his father showed that in January, 1917, Virgil had left home and gone to Detroit, Michigan, where he remained until June, 1917, when he returned home. He then took charge of his father’s farm, under some sort of an arrangement by which he purchased the live-stock. Evidence showed there had been differences between the father and son in regard to feeding the cattle. Charlie Wilks, a nephew of the deceased who lived a quarter of a mile away, testified that Virgil had mentioned the disagreements with his father and said, “I have had kill, in my head here lately.”

Wilks was shot with a number-four shot fired from a twelve-gauge gun. A box of cartridges of that size was in the house and some of the shells were missing. Virgil owned a twelve-gauge gun, which had disappeared and was never found after the murder. Virgil claimed it disappeared while he was absent in Detroit and he could not find it on his return home. The tracks of a rubber-tired buggy were shown to have been made from the road leading south, down a wide ditch which led in the direction of the Wilks home, where they turned some distance from the house and led out again. There was some similarity between those buggy and horse tracks to the ones made by the buggy and horse driven by defendant.

The defense was alibi. Defendant claimed he drove to Aurora after supper, to visit a girl with whom'he was keeping company, by the name of Ethel Ashens. This girl and several other persons testified to seeing the defendant in Aurora about eight o’clock or before. The evidence tended to show that it took about fifty minutes to drive from the Wilks home to Aurora. There was testimony to the effect that Virgil Wilks’s horse, on that evening, did not show any evidence of having been over-driven.

The telephone wire was cut in the yard, where it was attached to a tree. Bloodhounds were brought to the scene immediately. They took the trail and pursued it to the house of the nephew, Charley Wilks.

The defendant was informed .of his father’s injury a short time after he arrived in Aurora; he hurried home in an automobile, arriving there after the death. Nothing in his demeanor at the time indicating guilt is mentioned in the evidence.

The evidence apparently the strongest against the defendant and that which tends most nearly to connect him with the murder was the alleged dying statement of Wilks. The shot attracted the attention of some of the neighbors, and they were notified of the tragedy and soon began to arrive. Among those who arrived first was Mrs. Cora Knott, who lived about a hundred yards away. A little later W. R. Wilks, or “Doc” Wilks, a brother of the deceased, arrived. After Mrs. Knott arrived she heard the wounded man exclaiming and calling upon the Lord to save him, and among other things he made the statement which was offered and admitted as his dying declaration. Later, when the brother, Doc Wilks, arrived, and the dying man had been placed on his bed, he made a different one to him. This latter statement was introduced by the defendant.

The alleged declaration testified to by Mrs. Knott was this: she heard the deceased say to his wife, “Virgil killed me.” That is all that appears in her testimony as to what the statement was. It developed, however, that at the preliminary examination, and again at the previous .trial of the case, Mrs. Knott had given the complete statement of the deceased, of which the above words were only a part. His complete declaration to his wife at the time was as follows: “You go away from me; Virgil killed me. You and him made it up this afternoon to kill me tonight. They tried to get me when I was on the porch.”

There was no preliminary examination of the -witness at the trial to show that such was the complete declaration, but it seems conceded by the State that it was. Before the prosecuting attorney made his opening statement to the jury, Mr. Skinner of the defense objected to any reference to the alleged dying declaration by the prosecutor, setting forth in his objection the complete statement as above quoted, as testified to at the former trial and in the preliminary hearing. The objection was renewed in the same form at the time Mrs. Wilks was called 'to testify, on the ground that the declaration was a mere conclusion, the expression of opinion or inference, and not the statement of a fact by the witness. The court excluded all the declaration except the expression, “Virgil killed me,” doubtless on the theory that the rest of it was expressions of opinions or inferences, while the part admitted was the statement óf a fact. The defendant, then, on cross-examination of Doc Wilks, had him testify to the declaration heard by him after his arrival; he said George told him he wanted to make a dying statement and said: “Charley Wilks shot me, and Virgil and Bill hired him to do it. ’ Bill was another son living probably somewhere in the neighborhood.

The questions arising on the admissibility of dying declarations have often received the consideration, of this court. It is a universal rule that a trial court must determine in the absence of the jury the preliminary question whether or not the declaration offered is admissible. [State v. Finley, 245 Mo. l. c. 474; 1 R. C. L. p. 544.] The court in determining this preliminary question must take into consideration the statement itself and the circumstances surrounding, for the purpose of finding out whether it is made under proper conditions and whether it is of a character which would make it admissible. Such statements are admissible only as to such matters as the declarant might have testified to if sworn as a witness in the case. [State v. Elkins, 101 Mo. l. c. 351; State v. Chambers, 87 Mo. l. c. 408; State v. Horn, 204 Mo. l. c. 549.] Therefore, the statement of the declarant which is a mere conclusion or the expression of an opinion is always incompetent as a dying declaration. [See also, State v. Parker, 172 Mo. l. c. 202, 203; State v. Vansant, 80 Mo. l. c. 76; State v. Minor, 193 Mo. l. c. 613.]

The courts invariably receive such statements with great caution, because of the absence of any opportunity to cross-examine. This court in the case of State v. Elkins, at the page cited, after holding that a dying declaration should be admissible only if it stated facts and not conclusions, said: “Now, we are aware that such general conclusions often drop from a witness, and, when they are made by a witness on a witness stand so that there may be a full examination and cross-examination, they seldom furnish a ground for a reversal of a judgment. But here the witness, who is speaking, could not be examined or cross-examined, and his conclusions as to what transpired in the house are not accompanied with a statement of the facts.”

In this case the • declaration introduced, “Virgil killed me,” might be a statement of fact or it might be the expression of an opinion, according to circumstances. It it had been testified to by the declarant as a witness on the stand it could have been elucidated by cross-examination to show which it was. That part of the statement which the trial judge deemed an expression of an opinion he excluded. If the part excluded had been detached in meaning from the part admitted and not directly and intimately related to it and connected with it, there would have been some reason for separating them; but the part excluded and the part admitted were so intimately joined and connected as a single statement that a part of. it could not be detached from the rest without changing or modifying its import. The Devil may quote Scripture to serve his purpose by taking it out of its context. It all should be admitted together or excluded together. The part excluded simply explains the part admitted. It gives his reason for saying, “Virgil killed me,” — “you and he 'made it up this afternoon to kill me tonight.” “They tried to get me when I was on the porch.”

This view is strengthened by what he said a few minutes later to Doc Wilks: “Charley Wilks shot me and Virgil and Bill hired him to do it.” Of course, the latter statement, being separate in point of time and made to a different person, was admissible to contradict the first statement, and it throws light’on what was in the mind of the deceased at the time he made it.

The court not only should have considered the entire statement, but the entire' circumstances. It doesn’t matter whether the character of the declaration as an opinion appears from the statement itself or from evidence which shows the declarant conld not have known the fact stated. [State v. Chambers, 87, Mo. 406.] The shot was fired through the window, a lighted lamp was in the room; between the man who was shot and his assailant were a wire screen, a glass window and a lace curtain. It is apparent that he .could not see through these obstructions from a lighted room out into the darkness and recognize one standing far enough away from the window to point a gun and fire it. There is nothing in the declaration itself indicating that he saw his assailant or recognized him, or saw anything at the moment to indicate who he was. • Cases have arisen where dying declarations were .offered explanatory of murders committed by persons shooting from outside of a lighted house and killing someone inside the house. [State v. Williams and Avery, 67 N. C. 1. c. 15-17; Binns v. State, 46 Ind. l. c. 314; Jones v. State, 52 Ark. l. c. 347; Harper v. State, 56 L. R. A. note c, pp. 375-80, in which many cases are cited and the subject discussed at length.]

If a declaration is an expression of an opinion drawn from facts immediately under the observation of the declarant; for instance, if he sees his assailant and from appearances which he may describe he draws a conclusion as to his identity, it is admissible, but if the opinion is the result of a course of reasoning from collateral facts it is inadmissible. The case of State v. Williams and Avery, 67 N. C. 12, is a leading case often cited in elucidation of that principle. The declaration must be restricted to the identification of the assailant and to,, the act of killing, and the circumstances immediately attending such act. [State v. Parker, 172 Mo. l. c. 202.] Here the declarant didn’t base his statement that Virgil killed him on anything he saw at the moment of the act, or anything which carné immediately under his observation; but it excludes that idea. The first declaration, showng the feeling of repulsion for his wife, “You go away from me,” immediately con-nested her with it. “Virgil killed me. You and him made it up this afternoon to kill me tonight. They tried to get me when I was on the porch.” The evidence indicates that before going to bed the deceased stepped out on the porch and saw, or suspected that he saw, someone lurking in the neighborhood. Possibly he saw Virgil. If he did, and drew his inference from that fact, the statement would be inadmissible, because that was not immediately connected with the act of firing the shot. While the statement made to Doc Wilks to the effect that Charlie »had shot him and that Virgil and Bill had hired him to do it, would not make the first-statement made to his wife incompetent, yet it should have been taken into consideration by the trial court as a part of the circumstances indicating what was in the mind of Wilks in the hour of his death. The natural and obvious interpretation of the declaration that Virgil killed him, taken together with all that he said, with the situation, the shot- fired from the darkness outside when the deceased was in a lighted room, and his» apparent inability to see through a lace curtain, a glass window and a wire screen, is that he inferred it from other circumstances and conditions, and not from what came immediately upon his observation at the time the shot was fired. It seems impossible that he intended to say that he saw Virgil fire the fatal shot. The evidence was improperly admitted.

The judgment is reversed and the cause remanded.

Bailey and Mozley, GO., concur.

PER CURIAM:

The foregoing opinion by White,

C., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: FARIS, J.

license: Public Domain

text:
    THE STATE v. WILLIAM G. BOWMAN, Appellant.
    Division Two,
    June 3, 1919.
    1. INSTRUCTION: Refusal of Defendant’s. If the court has already given a correct instruction fully covering the point of prosecutrix’s age, it is not error to refuse one to the same effect asked hy defendant.
    2. INSTRUCTION: Rape of G-irl Under Age of Consent: Timely Complaint. In the prosecution of a defendant charged with statutory rape upon a girl under fifteen years of age, it is not error to refuse to instruct that the jury may take into consideration, in detérmining the guilt or innocence of defendant, that she did not complain of the alleged complaint to others as soon as opportunity afforded, although she has testified that she was forcibly ravished; for the fact of timely complaint is allowed to he shown ,only in case of rape by force of a female capable of giving her consent.
    3. EXAMINATION OF DEFENDANT: Inquiry as to Moral Opinions. To ask a defendant, charged with statutory rape upon a girl under fifteen years of age, whether -he "‘thought it was right and proper to run these young girls into this saloon through a side door,” and compel him to answer, not only calls for an opinion or conclusion, hut is an improper inquiry into his opinions upon questions of human behavior and sobriety, and compels him by his answer to assume the risk of having his personal views upon these matters run counter to those held hy the jury, and is therefore prejudicial.
    4. EVIDENCE: Prosecutrix’s Age: Family Bible Entry. The admission in evidence of a loose piece of paper, on which, among other data, had been written the date of prosecutrix’s birth, by her grandmother, who is still alive, at the dictation of prosecutrix’s mother,,who testified as to the date of her birth, and which had been pinned to a leaf in the family Bible, was reversible error. Entries in a family Bible are, when considered as potential evidence, nothing but hearsay, and as such are on a parity, touching their admissibility in evidence, with mere verbal declarations of the entrant or declarant, and in order that such declarations may he admitted in evidence it must be shown: (1) either that the entrant is dead, or that his testimony is otherwise unobtainable upon the trial; (2) that the entrant was or is a relative ,of the family to which the individual whose age or date of birth is under inquiry belongs; and (3) that the entries were written ante litem motam.

      5. VERDICT: Excessive Punishment. As the judgment must be reversed and the cause remanded for a new trial because of error in the admission of evidence, the question of whether a verdict finding defendant guilty of statutory rape upon a girl under fifteen years of age and assessing his punishment at ninety-nine years’ imprisonment is excessive, is reserved.
    Appeal from Jackson Circuit Court. — Eon. E. E. Porterfield, Judge.
    Reversed and remanded.

      Patrick T. O’Eern, Clarence Wofford and Bert S. Kimbrell for appellant.
    (1) The court erred in admitting in evidence State’s exhibit, consisting of a Bible printed in the English language, to a page of which was attached by an ordinary pin a plain sheet of writing paper upon which was written the names and ages of the children of prosecutrix’s mother, including the prosecutrix, the evidence disclosing that at the time of the births of the various children, including the prosecutrix, the mother kept no family Bible in which was recorded the births of said children, that no record of any kind or character was kept, and that the entries upon said piece of paper were made from twelve to fourteen years after the birth of the prosecutrix. Hamilton v. Wabhsh Railway Co., 21 Mo. App. 156; State v. Neasby, 188 Mo. 470; State v. Miller, 70 Kan. 200; People v. Mayne, 118 Cal. 516; G-reenleaf on Evidence (16 Ed.), chap. 10, pp. 195 and 200; 9 Ency. Evid., pp. 738, 745; Stein V. Bowman, 13 Pet. (U. S.) 209; In re Colbert’s Estate, 153 Pac. 1026; In re Peterson’s Estate, 134 N. "W. 769; 2 Wigmore on Evidence, sec. 1481, p. 1841; State v. Menard, 110 La. 1098; Yantiné v. Butler,-249 Mo. 531. (2) The court erred in permitting the prosecutor to propound to the defendant and in requiring the defendant to answer over the exception of the defendant, the following questions, to-wit: “Q. Was that proper for you to run these young girls into this saloon, through the side door there1? Q. You thought that was perfectly proper?” (3) The evidence is insufficient to sustain the conviction. State v. Hughes, 258 Mo. 264; State v. Donnington, 246 -Mo. 343; State v. Tevis, 234 Mo. 276; State v. Goodale, 210 Mo. 275; Champagne v. Hamey, 189 Mo. 709; State v. Patrick, 107 Mo. 147; Sherwood’s Commentaries, pp. 94 to 101. (4) The punishment assessed by the jury is excessive. (5) Under the facts of the case at bar, the court erred in refusing the instruction asked by defendant, on timely complaint. State v. Davis, 190 S. W. 298; State v. Donnington, 246 Mo. 355; Champagne v. Hamey, 189 Mo. 709; Sherwood’s Commentaries, pp. 94 to 101; State v. Witten, 100 Mo. 528; State v. Wilson, 91 Mo. 410. Manifestly the refusal of this instruction was erroneous if it should be determined by the court that the evidence discloses a case of rape by force.

      Franh W. McAllister, Attorney-General, and C. P. Le Mire, Assistant Attorney-General, for the respondent.
    (1) The admitting in evidence of a Bible to a page of which‘was attached a written memorandum of the date of the birth of prosecutrix, was not reversible error. State v. Gulley, 272 Mo. 489; State v. Neasby, 188 Mo. 470; Beckham v. Nacke, 56. Mo. 549. (2) The court permitted counsel for the State to ask the defendant the following questions: “Q. Was that proper for you to run these young girls into this saloon, through the side door there? Q. You thought that was perfectly proper?” These questions were so grossly immaterial as to warrant scant consideration here, especially as the witness never gave a direct answer to either. (3) The evidence introduced was sufficient to sustain the conviction. State v. Taylor, 267 Mo. 48; State v. McBrian, 265 Mo. 604; State v. Mace, 262 Mo. 157; State v. Hughes, 258 Mo. 272; State v. Bowen, 247 Mo. 595; State v. Stackhouse, 242 Mo. 450; State v. Swain, 239 Mo. 728; State v. Scott, 214 Mo. 261; State v. Espenschied, 212 Mo. 223; State v. Yandell, 201 Mo. 662. (4) The punishment assessed was not excessive. Sec. 4471, R. S. 1909, as amended by Laws 1913, pp. 218, 219, and Laws 1917, p. 246; State v. Moore, 121 Mo. 519; State v. Williams, 77 Mo. 312. (5) Appellant’s instruction was properly refused, being fully covered by instructions given. State v. Hicks, 178 Mo. 444; State v. Palmberg, 199 Mo. 243; State v. George, 214 Mo. 2'67. (6) Since the elements of force or consent do not enter into the offense charged,-appellant’s instruction was properly refused. State v. Volz, 269 Mo. 202; State v. Palmberg, 199 Mo. 253.
   FARIS, J.

Defendant was tried in the Criminal Court, of Jackson County upon an information charging him with statutory rape committed upon a girl alleged to be under the age of fifteen years. The jury, having found him guilty, assessed his -punishment at imprisonment in the State Penitentiary for a term of ninety-nine years. From the resulting sentence and judgment, he has in the usual way appealed.

This ease was before us at a former term, whereat a sentence of imprisonment in the State Penitentiary for nine years was reversed and remanded for certain errors in the admission of testimony and in the cross-examination of the defendant. The facts of the case are abysmally sordid and indecent. These facts are sufficiently set forth in the report of the case upon the former appeal. See State v. Bowman, 272 Mo. 491, where these interested or curious may read them.

Such of the facts as we shall find it necessary to refer to on this review will be set forth by us in connection with our discussion of the law governing the several contentions made. The name of the prosecutrix is unimportant, and we shall therefore refer to her simply as “the prosecutrix.”

Defendant urges manifold alleged errors upon our attention. Among these are: (a) Errors in the refusal of instructions asked by defendant; (b) errors in allowing the State to travel in its cross-examination of defendant, far afield from his examination-in-chief; (o') insufficiency of the evidence, to support the verdict; (d) errors in the admission of evidence on the part of the State, and (e) the excessiveness o'f the verdict and sentence.'

I. Defendant requested, and the trial court refused, to give the below instruction, to-wit:

Age ofProsecutrix. “The court instructs the jury that unless you find and believe from the evidence beyond a reasonable doubt that on May 27, 1915, the date of the a^eged assault, the prosecutrix was under the age of fifteen years, you will find the defendant not guilty.”

1 The refusal of the above instruction was not error, because the court had already, in instructions one and four, which were given of his own motion, fully covered the point of prosecutrix’s age, and the necessity for the jury to find beyond a reasonable doubt tfyat she was under fifteen years of age when the act complained of occurred. It results that the refusal to give an instruction upon the point covered by the refused instruction was not error, and this contention must be disallowed.

II. Another instruction which defendant requested and the court refused to give reads thus:

“The court instructs the jury that if you find and believe from the evidence that the prosecutrix did not as soon as an opportunity offered complain ^ie alleged offense to others, but concealed it for a considerable length of time thereafter, then the jury should take this circumstance into consideration with all other evidence in determining the guilt or innocence of the defendant, and whether, in fact, a rape was committed or not.”

The refusal of the above instruction, as we have a number of times ruled, was not error in this' sort of case. [State v. Palmberg, 199 Mo. l. c. 253; State v. Hammontree, 177 S. W. 367.] We recognize keenly the difficulty and closeness of this point, and we appreciate fully the defendant’s point of view, and the great force of his insistence. It presents a phase of the doctrine announced in the maxim uFalsus in uno, falsus in omnibus.,” for if prosecutrix’s testimony is credible and is to be believed, she was forcibly ravished. If she was debauched by force and not by consent, human experience — as chronicled in all of the books — is that she would have lost no time in making complaint of the fact. Her failure promptly to complain, her age and environment regarded, may well cast doubt upon her story of force, and if her story as to the use of force is false, her entire story, perforce the maxim supra, is appreciably weakened.

But, by the express terms of the statute under which this prosecution was had, force is not a necessary element of the crime for which defendant was convicted. An instruction of the sort requested is therefore a comment upon the prosecutrix’s testimony upon a point not within the issuable facts. If prosecutrix had been in law capable of consenting, and had consented, there would be no crime; but she was not so capable. The fact of timely complaint is only allowed to be shown in a case of rape by force in corroboration of the fact of force; because, as forecast, such timely complaint, in the light of human experience, is ordinarily incompatible with consent.

So may be said to run some of the arguments for and against the giving, in any ease of statutory rape, of the sort of instruction which the court here refused to give. We cannot, of course, state too strongly the distinction in this respect existing between the latter crime and rape by force. [See State v. Patrick, 107 Mo. 147.] Moreover, cases occur wherein prompt complaint would be excused by reason of prosecutrix’s domination by fear, or by her environment. [State v. Baker, 136 Mo. 74.] Likewise, cases occur under this charge wherein the childish age of a victim would excuse the absence of prompt complaint, because of lack of sufficient intelligence to understand and appreciate the heinousness of the crime committed against her. Within the maze of exceptions, it will he seen, therefore, that great difficulty would be met in applying the proper rule to any given case of prosecution under the provisions of the first clause of Section 4471, Revised Statutes 1909, as amended by Laws 1913, p. 218. For, bv reason of the excusing exceptions noted, the impossibility of fixing any settled rule for all cases becomes obvious. We conclude therefore, that we are not warranted, upon any sufficient or compelling reason in overruling the adjudged cases which obviously state a rule in diametrical conflict with the one defendant is here contending for; although confessedly the point is a close, difficult, and an interesting one. In passing, we scarcely need to observe that the point urged could never arise except in a case wherein the prosecutrix had testified to the use of force in accomplishing the crime charged, and then only upon the single point of her credibility as a witness. We adhere, therefore, to the doctrine of the adjudged cases, and disallow the contention — the less reluctantly for that ample leeway to discuss the inconsistency of prosecutrix’s testimony and behavior is afforded by the general instruction given upon the credibility of the witnesses.

III. Complaint is also made that in the course of the cross-examination of defendant by the State, he was required to answer whether he “thought ^ was an<^ proper to run .these young girls into this saloon through the side door.” The only grounds of objection urged were that the question called for a conclusion, and was immaterial.

While the question required defendant to disclose his mental and moral attitude regarding the situation shown, and undoubtedly was, to this extent, asking for an opinion or conclusion, and was therefore improper, a yet stronger objection to it was that it was not covered by, or included within, the fair range of defendant’s examination-in-chief. But this latter objection was not made. It could well have been made, and might also have been made, bnt it was not, to some hundred or more other questions asked by the State in cross-examining the defendant. We are convinced that the question was improper and ought not to have been either asked or answered.

Defendant was being prosecuted for statutory rape, and not for holding immoral opinions upon questions of human behavior and sobriety, and he ought not to have been required to assume the risk of having his personal views upon these matters run counter to those held by the jury, and thus prejudice his case before the jury.' Questions of politics and morals, religion and governmental policy arise and grow acute and become daily provocative not only of prejudice, but of breaches of the peace, when opinions touching them are expressed which are at variance with the views of those within hearing distance. We agree that' the question asked was improper, and that this contention of defendant ought to be sustained.

IY. When the case was here before, the alleged insufficiency of the evidence to support the conviction was strenuously urged upon our attention. Defendant again urges this point, as against the facts before 118 1TP0rL the instant record. The case now made by the evidence is fully as strong, if not stronger, than was the case when it was here before. We then held that the evidence was sufficient to go to the jury (State v. Bowman, 272 Mo. 491), and while the story of prosecutrix is in some respects strongly contradicted by witnesses seemingly credible and apparently disinterested, and while in some aspects her behavior and testimony are opposed to human experience, we see no reason to change our views upon the sufficiency of the evidence to sustain the verdict. All of these matters and things and contradictions were for the jury. Even upon the matter of corroboration arising from her prompt complaint, or lack thereof, the evidence was contradictory,, and therefore upon this point also the question was one for the jury. It follows that this contention must be overruled.

V. Upon • the trial now under review, as was the case upon the former trial (State v. Bowman, 272 Mo. J. c. 498), there was a sharp conflict in the evidence upon the age of prosecutrix. Her age was a vital point in the case. The sharply contested issue was whether she was at the time 14 years, 8 months and 18 days old, or exactly one year older than this. If she was fifteen years old, defendant could not under the law have been convicted upon the charge before us.

Upon the trial the State was permitted to offer a sheet of paper containing written thereon the names and dates of birth of prosecutrix and her brothers and sisters, which sheet of paper was pinned to a leaf of a Bible. This paper had been written by the grandmother of prosecutrix ante litem motam, but long after the facts stated therein had transpired. The grandmother, who was still living at the time of the trial, had written down the data mentioned from the dictation of prosecutrix’s mother. The mother testified in the case. But, notwithstanding this fact, the State was permitted to offer in evidence, over defendant’s objection, the paper mentioned. Defendant now complains that this sheet of paper was not admissible, and .that the trial court, in permitting it to be offered, committed reversible error.

We think this contention is well taken, and must be sustained. While the authorities, both' in this State and out of it, disclose much loose writing upon the point', it is one which is easily traced back to its legal foundations, and which — when so traced and examined — presents but little difficulty. Some jurisdictions refuse to admit hearsay declarations of this sort, in any case except a pedigree case. [Cf. People v. Mayne, 118 Calif. 516; 1 Grreenleaf on Ev. (16 Ed.) p. 203, note.] But such a fule has never secured a foothold in this State (State v. Marshall, 137 Mo. 463), and no sufficient reason for so restricting the admissibility of such evidence within such narrow limits can be seen. [22 R. C. L. 1201; 1 Greenleaf on Ev. (16 Ed.) 203.]

’ The admissibility of such entries at all and in any case constitutes an exception to the rule against hearsay evidence. It is a well-settled exception, because all courts recognize it — some, however, as forecast, in a limited and not a thorough-going way. Mr. Greenleaf, in his excellent work on Evidence, states the rule thus:

“As a preliminary to the admission of declarations by a member of a family, or of reputation in the family, a necessity for resorting to such evidence must first appear. As to declarations by an individual member, his death is a sufficient ground; though there is some authority for the notion that if other members of the family are living and available,- the deceased’s statement is inadmissible; but this seems unsound. It is usually intimated that death is the only, ground for admission; and of course where the declarant is alive and available, the declarations are inadmissible. As to family reputation, it is perhaps not necessary to show that every member of the immediate family is deceased; but it is usual to exclude such reputation where the matters are of recent occurrence and some of the family appear to be available, — at any rate where the reputation is in the form of a family Bible-entry and the entrant himself is still available. . . .
“The rule of admission is, therefore, restricted to the declarations of deceased persons who were related by blood- or marriage to the person. . . .
“Thus, an entry by a deceased parent or other relative made in a Bible, family missal, or any other book, or in any document or paper, stating the fact and date of birth, marriage or death of a child, or other relative, is regarded as a declaration of such parent or relative as a matter of pedigree.” [1 Greenleaf on Ev. (16 Ed.) pp. 197-200.]

It is fundamental that such entries in a family Bible, are, when considered as potential evidence, nothing but hearsay, and as such on a parity touching their admissibility with mere verbal declarations of the entrant or declarant. The rule as to when, or under what condi*tions precedent, such declarations are admissible is fairly simple. It must be shown, (a) either that the declarant or entrant is dead, or that his testimony is otherwise unobtainable upon the trial; (b) that the declarant or entrant was, or is, a relative of the family to which the individual, .whose age, or' date of birth is under inquiry, belongs, and (c) that the declarations were made, or the entries written, ante litem, motam. [Stein v. Bowman, 13 Pet. 209; In re Colbert’s Estate, 153 Pac. l. c. 1026; 9 Ency. of Ev. 739; In re Peterson’s Estate, 134 N. W. l. c. 760; People v. Mayne, 118 Cal. 516.] In the instant case, the undisputed facts were that the names and dates of birth of prosecutrix and- her brothers and sisters, of whom there were five, were written on a loose sheet of paper by the grandmother of prosecutrix, at the dictation of, and wholly from data furnished by prosecutrix’s mother. The mother was present and testified in the case, on the part of the State, as to the precise date of prosecutrix’s birth. The grandmother who performed the mere manual labor of writing down on this sheet of paper the information given to her by the mother, was still alive at the time of the trial — but we need not consider the grandmother, for the testimony shows that she wrote onjy what the mother dictated and told her to write. This writing of the date of prosecutrix’s birth upon the sheet of paper in question seems to have been done when the latter was eleven or twelve years of age, and following a sharp difference of opinion between the grandmother and the mother in regard to the age of prosecutrix. After being written, this loose sheet of paper was attached to a leaf of a Bible.by a pin, and was so preserved till it was offered on the trial of this case.

That this sheet of paper was inadmissible is instantly obvious when the 'above undisputed facts are examined, in the light of the rule which we announce above. It was a mere written declaration of a living witness to a fact about which the witness had herself already testified, and it was therefore pure hearsay Avithout the pale of the exception noted. The testimony of the mother was of course admissible, and fell naturally into the category of the best evidence obtainable. The harmfulness of the admission of this writing is apparent AAdien we consider that the mother could, so far as the facts before us are concerned, have qualified one hundred or more witnesses as to 'the age of prosecutrix had she ante litem motam, fortuitously walked down the street and told each of such witnesses the date of prosecutrix’s birth. Any such witness would thus have become as competent to relate -the date of prosecutrix’s birth as was the paper offered to recite this fact.

The cases of State v. Gully, 272 Mo. l. c. 489, and State v. Bruton, 253 Mo. 361, are readily distinguishable upon their respective facts from the facts in the instant case. In neither of these latter cases, among other things which distinguish them from this, was there any conflict in the testimony touching the age of the prosecuting witness therein. In the Bruton case the sheet of paper, on which entries made by the deceased mother were copied from a family Bible, was held by us to be admissible. The copy of the Bible entries was made because the original record therein had, from age and use, become illegible. But this copy from such Bible entries was made at the direction and in the presence of the mother, who, twelve years before the paper was admitted in evidence had departed this life. Upon proof of the identity of the sheet of paper, of its correctness as a copy of the original, illegible entry, of the prior death of the mother, and of the making of such copy by the latter’s direction and in her presence, the copy was ruled by us to be admissible.

In the Gully case, supra, the point was not decided at all, but especially reserved by us. In both the Bruton case and the Gully case the question rode off upon another point. It follows that the contention of error bottomed upon the admission of the paper in question ought to be sustained.

VI. Coming to the last point urged, that of alleged excessiveness of the verdict, it is enough to say that since his case must for óther errors be reversed and remanded for a new trial, whereat the verdict n°t necessarily be subject to the same criticism, we need not now take up' time and space here to decide it. We may content ourselves with saying that the point raised has at least the virtue of uniqueness. For the question, whether a punishment which a jury has assessed within limits set by the Legislature (when the point is wholly disassociated from other potential errors) can possibly be excessive, is reserved till a more convenient season, and till we shall meet it in a case face to face.

For the errors noted let the case be reversed and remanded for a new trial, in accordance with what we have held herein. And it is so ordered.

All concur.


author: WILLIAMS, P. J.

text:
    ELIZABETH GOEDECKE v. MARY LINDHORST et al., Appellants.
    Division Two,
    June 3, 1919.
    1. WILL CONTEST: Verdict For Proponents: Peremptory Instruction: New Trial. Where the proponents produce substantial evidence establishing testator’s testamentary capacity and lawful age and that his will was duly executed, and contestants produce no substantial proof tending to show testamentary incapacity or that the will was the result of undue influence, it is the duty of the court to direct a verdict establishing the will; and if such instruction is given and a, verdict sustaining the will is returned, the court is not authorized to grant a new trial to contestants on the ground tha' it erred in giving the instruction.

      2. -: -: Harmless Error in Peremptory Instruction: New Trial. Where the evidence required the court to give a peremptory instruction to return a verdict sustaining the will, the fact that the court embodied in said instruction a direction to find that contestant was a child of testator did not authorize the granting of a new trial, because if this was error it was not error of which contestant can complain.
    Appeal from St. Louis City Circuit Court. — Mon. Thomas L. Anderson, Judge.
    Reversed {with directions.)

      William Milherbaumer and Jourdan, Bassieur S Price for appellants.
    (1) In a will contest after the proponents have proven the due execution of the will, and that the testator was of age, and sane at the time, it is thereupon the duty of the court to direct a verdict sustaining the validity of the will in contest, unless the contestant shall adduce substantial evidence tending to prove the mental incapacity of the testator or undue influence exerted over his mind at the time of the making of the will. Turner v. Anderson, 260 Mo. 36; "Weston v. Hanson, 212 Mo. 266; Southworth v. Southworth, 173 Mo. 73; Pull-bright v. Perry Co., 145 Mo. 443. (2) The testimony of a witness that in- his opinion testator was of unsound mind, but giving no facts upon which such an opinion can be based, will be disregarded by the court, and such testimony alone does not constitute substantial evidence of mental incapacity in a will contest sufficient to take the case to the jury. Thomasson v. Hunt, 185 S. W. 165; Hahn v. Hammerstein, 272 Mo. 248; Sayre v. Princeton University, 192 Mo. 128; Winn v. Grier, 217 Mo. 420; Sehr v. Lindemann, 153 Mo. 288. (3) If it were error for the court to direct a verdict that plaintiff was a child of Herman Thoele, it was in her favor. She cannot complain of such. (4) Plaintiff made no objection and saved no exception to the action of the court on directing a verdict in her favor that she wag the child of Thoele. (5) The law is well settled that where the verdict of a jury contains any matter, or a finding upon an improper issue or matter, this surplusage or portion may he disregarded and it is the duty of the court to enter on such verdict, even though it contain improper matter, the judgment required in law. Ranney v. Bader, 48 Mo. 539; Poulson v. Collier, 18 Mo. App. 583; State ex rel. v. Knight, 46 Mo. 83; Buttron v. Bridell, 228 Mo. 622.

      Evan A. Smith for respondent.
   WILLIAMS, P. J.

This is a suit to contest the will of Herman Thoele, deceased. Upon a trial in the Circuit Court of the City of St.-Louis the court directed the jury to return a verdict establishing the will. Plaintiff thereupon filed a motion for a new trial, which "was sustained, and the defendants duly perfected an appeal. .

Plaintiff in her petition alleges that she is the daughter and heir at law of the alleged testator.

■ Undue influence and the lack of sufficient mental capacity upon the part of the testator are the grounds upon which the validity of the will is attacked.

Separate answers were filed by different defendants. In some of the .answers it was denied that plaintiff was the daughter and heir at law of the alleged testador. The allegations of the petition as to undue influence and lack of mental capacity Were also denied, and it was alleged that the writing in question was the last will and testament of the alleged testator and the same was requested to he so declared by the court.

The evidence upon the part of the proponents tends very strongly to establish the validity of the will. By the will the plaintiff is given the sum of one dollar. The remainder of testator’s estate, approximating one hundred thousand dollars, is devised and bequeathed to certain named devisees and legatees, including the wife, children and some of the grand-children of the testator.

The will was executed February 12, 1908. Testator died May 20, 1911. The will was duly admitted to probate in the City of St. Louis on June 6, 1911. Three witnesses who witnessed the will testified for the proponents. These witnesses were neighbors • and acquaintances of the testator, had known him for years and had had more or less business dealings with him. From their testimony it appears that the unsigned will in typewritten form was brought to the testator’s house, by Mr. George W. Strodtman, a real estate agent who had collected rent for the testator; that the will was read over to the testator, paragraph by paragraph, and the testator would have the reader stop from time to time and have the language of the will carefully explained to him. The will was thereupon duly executed by testator.

At the time the will was executed testator was between 75 and 80 years of age and except for slight infirmities, due to age, was in good health and as one of the witnesses states, “His [testator’s] mind was A-l.”

Plaintiff (contestant) introduced about thirty witnesses. The greater portion of plaintiff’s testimony was concerning her paternity. In the view we take ot the case it is not necessary to detail the evidence on paternity.

Many of the contestant’s witnesses testified on cross-examination that at the date of the execution of the will testator was of sound mind, knew who his children were and knew-what property he owned. Some of the evidence indicated that the testator was a man of high temper and of a strong will-power.

No evidence of undue influence was offered by plaintiff. '

The only witness for contestant who undertook in any manner to question the mental capacity of the testator was the son of contestant, who testified upon direct examination that at the time the will was executed testator “was of unsound mind.” Upon cross-. examination, however, this witness testified that the testator “knew what property he had; he knew where it was located; he had quite a number'of pieces distributed around the city and he knew where all of it was; he never had any confusion about it that I know of in all the time I was visiting him; he never forgot where the property he owned was. He had sufficient mind to know where his property was; he knew who his children were and he knew who his grand-children were; he could tell them by sight. ’ ’

At the close of all the evidence the court of its own motion gave to the jury the following instruction:

“The court instructs you that upon the pleadings and evidence in this case Elizabeth Goedecke is the child of Herman Thoele and Mary Thoele, and the paper writing offered in evidence is the last will and testament of Herman Thoele, deceased, and your verdict must be accordingly.”

Thereupon the jury returned the following verdict:

“We, the jury in the above entitled cause, find that the instrument offered in evidence dated February 12th, 1908, purporting to be the last will and testament of Herman Thoele, deceased, is the last will and testament of Herman Thoele, deceased, and that Elizabeth Goedecke is the child of Herman Thoele and Mary Thoele.”

Thereafter and in due time plaintiff filed a motion for a new trial, and the defendants filed a motion requesting the court to disregard as surplusage that portion of the verdict finding • that plaintiff was the child of the testator and to enter up judgment on the verdict establishing the will.

The court ‘overruled defendants’ motion to enter up judgment on the verdict, but sustained plaintiff’s motion for a new trial, giving as ground thereof that the court erred in giving the peremptory instruction above set forth.

I. It is contended that the court erred in granting a new trial. After a careful review of the entire record we are of the opinion that this point is well taken.

Substantial proof was offered by the proponents, establishing the testamentary capacity and lawful age of testator and that the -will was duly executed. The contestant produced no substantial proof tending to show testamentary incapacity or that the will was the result of undue influence. The evidence touching upon these issues is fully stated in the foregoing statement and repetition of same is unnecessary here.

Upon the evidence disclosed by this record it was the duty of the trial court to direct a verdict establishing the will. [Southworth v. Southworth, 173 Mo. 59, l. c. 73 and cases cited therein; Teckenbrock v. McLaughlin, 209 Mo. 533, l. c. 539.]

II. . The learned circuit court seemed to have been of the opinion that the peremptory instruction which he gave in this behalf was erroneous because it also directed the jury to find that contestant was ^he child of testator, and for that reason granted a new trial. If this were error it was not an error of which contestant could complain, because it was in her favor. Appellants did not ask for a new trial.

Upon the evidence produced it was the duty of the court to direct a verdict establishing the will and the issue as to the paternity of contestant then became of no importance in the determination of the case. Under such circumstances the court might well have treated that portion of the verdict finding the parentage of complainant as surplusage and entered judgment upon the verdict establishing the will. [Ranney v. Bader, 48 Mo. 539, l. c. 541.]

From the foregoing it follows that the judgment should be reversed with directions to set aside the order granting a new trial and to enter up a judgment on the verdict establishing the validity of said will.

It is so ordered.

All concur.


text:
    THE STATE v. EARL BRITT, Appellant.
    Division Two,
    June 3, 1919.
    1. EMBEZZLEMENT: Borrowed Gun: No Evidence of Conversion. Where the whole evidence consists of a showing that defendant borrowed of the owner a shotgun under a promise to return it in the afternoon of the same day, and instead of keeping his promise continued to retain the gun for eight months, he should be discharged.
    2. -: Bailee: Conversion. The offense denounced by Section 4552, Revised Statutes 1909, is essentially embezzlement; and when one accused of such embezzlement spends the money, or sells or disposes of or puts out of his control the property, of another, which comes into his hands as bailee, or even if he secretes it, or if he refuses upon demand to pay the money or deliver the property,to the owner, in the absence of any excuse, such facts are circumstances tending to show conversion, with a fraudulent intent; and absent all such facts the mere mention of private money or property do not constitute conversion.
    3. —:-: -: Fraudulent Intent. To convict a bailee of embezzling private property which has lawfully come into his hands, a fraudulent conversion which amounts to depriving the owner of dominion over the same, with a felonious intent so to deprive him thereof, must be shown.
    4. -: Borrowed Gun: Stolen from Bailee. If the gun borrowed by defendant was stolen from him, he is not guilty of embezzlement.
    5. -: Prosecution to Collect Debts. The criminal law is not to be used, as an opressive agent through fear of prosecution, to col- ‘ lect debatable debts.
    Appeal from Pemiscot County. — Hon. Sterling H. McCarty, Judge.
    Reversed/'

      Sam J. Corbett for appellant.
    (1) There was no sufficient evidence in the case tó warrant or authorize a verdict of guilty, or to sustain a conviction, and the court erred in refusing to instruct the jury to find the defendant not guilty. (2) It is not a crime to borrow a shot-gun and merely fail to return it. If defendant still had the gun, nothing further appearing, he was guilty of no offense against the law of the State. If some one stole the gun from him,, he was guilty of no offense. To constitute the crime of embezzlement it must be shown “that there was a fraudulent conversion of the personal property, already in the lawful possession of the person who wrongfully and feloniously appropriates it to his own use.” State v. Thompson, 114 Mo. 319. In the case at bar there was a total failure of proof of the charge. The only thing shown was that defendant was in the lawful possession of the gun. There was no showing of a felonious intent to appropriate the gun to his own use, nor that defendant had appropriated the same feloniously to his own use. State v. Thompson, 144 Mo. 319. (3) The case therefore falls within the rule, “that the Supreme Court will reverse a case where there is a total failure of evidence, or it is so weak that the necessary inference is that the verdict was the result of passion, prejudice or partiality.” State v. Glahn, 97 Mo. 679; State v. Howell, 100 Mo. 659; State v. Hellwig, 60 Mo. App. 483.

      Frank W. McAllister, Attorney-General, and Thomas J. Cole, Special Assistant Attorney-General, for respondent.
    (1) The evidence is sufficient to sustain the conviction. State v. Concelia, 250 Mo. 425; State v. Underwood, 263 Mo. 685. (2) No demand for the property alleged to have been embezzled was necessary. State v. Porter, 26 Mo. 208; State v. Tompkins, 32 La. Ann. 620; Commonwealth v. Tuckerman, 76 Mass. (10 Gray) 208; Leonard v. State, 7 Tex. App. 447; 10 Am. & Eng. Ency. Law, p. 447.
   FARIS, J.

Defendant was convicted in ' the Circuit Court of Pemiscot County of grand larceny under the provisions of Section 4552, Revised Statutes 1909 and sentenced to imprisonment in the Penitentiary for a term of two years. From this conviction, after the usual motions and pursuant to the conventional procedure, he has appealed.

Many contentions of alleged error are urged upon our attention by defendant. These include (a) errors in the instructions, (b) error in overruling defendant’s plea in bar for that, as it was averred, he had not been accorded a preliminary hearing, and (c) error in refusing to sustain the defendant’s demurrer to the evidence.

Pretermitting the serious doubt whether the property alleged to have been embezzled was of sufficient value to make the embezzlement thereof a felony, as well as the palpable error in the instructions, for that- — • to say no more — instruction one was broader than the-proof and so was erroneous, we come to a more vital question in the case, which is: Was there any sufficient evidence to sustain this conviction?

We are clearly of the opinion that there was not. Defendant borrowed from the owner thereof a certain Marlin repeating shot-gun (which the information charged defendant with embezzling as a bailee under such circumstances as to constitute grand larceny) upon the promise to such owner to return the gun in the afternoon of the Same day on which he borrowed it. This promise defendant failed to keep, and continued so to fail for some eight months; at the end of which time this prosecution was commenced. This is, so far as the evidence in the case discloses, the whole sum of defendant’s guilt and offending. There was no demand made on defendant, by the owner of. the gun for the return thereof, nor was there any showing that defendant had sold the gun or secreted it, or disposed of it, or otherwise in any affirmative or overt way converted it to his own use. In fact, one witness for the State, testifying as of a time subsequent to the arrest of defendant, says that the latter told the witness that he still had the gun. Another witness for the State swore that defendant stated to Mm that the gun had been stolen from defendant, hut that he intended to pay the owner thereof for it. From this state of the proof, we are of the opinion that there was no sufficient evidence of a conversion of the gun hy defendant to his own use with a fraudulent intent to deprive the owner thereof permanently. Touching this necessary element of embezzlement, it was said hy this court in the case of State v. Cunningham, 154 Mo. l. c. 178, that:

“A much more serious question is with respect to the failure of the instruction to tell the jury that in order to convict the defendant they must believe from the evidence that he converted the money to his own use without the assent of McLemore with a felonious of fraudulent intent to deprive him thereof. The State, however, contends that the only intent required hy the statute is that the defendant should have intended to convert the money to his own use without the assent of his principal, and that if he unlawfully did so he is guilty under the statute. There was no such crime as embezzlement at common law; it is 'purely a statutory offense, and as to such offense, it is said: ‘There must be an evil intent, though the statute is silent on the subject’. [1 Bishop’s Criminal Law (6 Ed.), sec. 345.] So in 10 Am. and Eng. Ency. of Law (2 Ed.), 996, .it is said: ‘To constitute embezzlement, it is necessary that there shall be a criminal intent. Most of the statutes, hy the use of various terms, expressly require this. Even when they do not, the necessity for such an intent is to be implied. There must he, as in larceny, a fraudulent intent to deprive the owner of his property and appropriate the same.’ [Eilers v. State, 34 Tex. Crim. Rep. 344.] The word unlawfully where used in the instruction does not supply the word felonious, or the words fraudulently, etd., for while defendant may have unlawfully converted the money to his own use, it does not necessarily follow that he did so with a felonious or fraudulent intent, and unless he did so with such intent he is not guilty of embezzlement, althoug’li the statute does not in express terms require that there shall be a criminal intent. [State v. Reilly, 4 Mo. App. 392.] Many things are unlawfully done which are not crimes, because 'the criminal intent is wanting.

“No one can be convicted of a felony in the absence of an intent to do a criminal act, but such" intent in case of embezzlement may be inferred from a felonious or fraudulent conversion. [State v. Noland, 111 Mo. 473; Dotson v. State, 51 Ark. 119; People v. Wadsworth, 63 Mich. 500.] Thus in Rex v. Williams, 7 C. & P. 338, a servant was sent to receive rent due her employer, and after receiving it, instead of returning, she left the country. It was held that a fraudulent intent to convert the money might be inferred from the circumstances.

“In the case at bar the defendant after receiving the money, with specific directions as to its application, disobeyed his instructions, abandoned his place of business, kept the money and left the country. The facts tending to show the felonious intent were substantially the same in both cases.”

Applying to the instant case the test of conversion with a fraudulent intent pointed out in the above excerpt, it is obvious, we think, that the proof is wholly insufficient upon this point. When one accused of embezzlement — and the offense denounced by Section 4552, supra, is essentially embezzlement — spends the money,- or sells or disposes of or puts out of his control the property of another which Came into his hands as a bailee, or even if he secretes it (Section 4552, supra), such acts are circumstances tending to show conversion. If the accused leaves the community, taking the property with him, such fact is likewise a circumstance tending to show a fraudulent intent to convert the property in question. [State v. Cunningham, supra.] If the accused ■refuse upon demand to pay money or deliver property (absent^ any excuse or excusing circumstance) which came into his hands as a bailee, such refusal might well constitute some evidence of conversion, with the requisite fraudulent intent required by the statute (Sec. 4552, supra), so as to take the case to the jury. [Dix v. State, 89 Wis. 250; Com. v. Brand, 166 Ky, 753.] But there is nothing of the sort shown by the record in this case.

We are not saying that there exists always a necessity for the making of demand on the bailee by the owner for the delivery of the property as a condition precedent to a prosecution for embezzlement by a bailee (State v. Porter, 26 Mo. l. c. 208); but we are saying that if there is no demand. for delivery there must be shown in the case aliunde, some other evidence of conversion by the accused. This is well-nigh fundamental. For, manifestly, if so it be that the defendant here had had the gun in question stolen from him, as one of the State’s witnesses swore, he could not be guilty of embezzlement. If defendant still had the gun in his possession, as another witness for the State swore, no guilt of the crime of embezzlement can be bottomed on this bare fact alone; surely, then, demand and refusal to return the gun must at least be shown.

Any other view is dangerous and untenable; for if defendant may be sent to the Penitentiary, absent a demand for the property, and absent any other evidence of a conversion by him of the property to his own use with the fraudulent intent to deprive the owner thereof permanently, then — the facts in this casé regarded — it is obvious that he committed a felony by his mere failure to return the borrowed property to the owner thereof at the time he agreed to return it. Barring the greater weight of the evidence of conversion, to be deduced from greater lapse of time after such default in returning the property, it is manifest upon this theory that defendant would become guilty of a felony, if he neglected to return the borrowed property on the precise day that he agreed to return it.

We are not dealing here with a public officer, or with public property, whereof it has been said that the failure to deliver such property over upon a settlement, which is in itself a demand of a sort, absent a good and satisfactory reason, is prima-facie evidence of conversion (State v. Hunnicut, 34 Ark. 562; Hollingsworth v. State, 111 Ind. 289; State v. King, 81 Iowa, 587; State v. Ring, 29 Minn. 78); but we are dealing with private property, wherein the mere failure to deliver is not alone sufficient to convict, but there must be shown a fraudulent conversion which amounts to depriving the owner of dominion over his property, with the felonious intent so to deprive such owner thereof. [State v. Cunningham, 154 Mo. 161; Robinson v. State, 109 Ga. 564; People v. Hurst, 62 Mich. 276; Fitzgerald v. State, 50 N. J. L. 475.] In short, we are saying that there must be some evidence in the case of either a direct or a circumstantial character to show when and how the accused ceased to be a borrower and became an embezzler. The chances for mischief, for that innocent persons may suffer, or for that the criminal law may be used as an oppressive agent to enforce debatable civil rights through fear of prosecution, are too potential to suffer us to write into the law any such doctrine as the State herein contends for. The learned court nisi ought to have sustained the defendant’s demurrer to the evidence.

In this view of the case other errors which are urged upon our attention become immaterial. It results that the judgment must be reversed and the defendant discharged. Let it be so ordered.

All concur.