author: BURGESS, P. J.

text:
    LYDIA J. PORTER v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

    Division Two,
    November 20, 1906.
    1. NEGLIGENCE: Enhanced Danger: Instruction. The fact that the road crossing where plaintiff’s husband was struck by defendant’s train might have been of such a character, because of a hole near thereto around which he had to drive his wagon, as to enhance the danger of collisions and accidents, is not a sufficient ground of negligence to entitle plaintiff to recover; and where the evidence does not show that the existence of the hole or condition of the crossing had anything to do with the collision, it is error to instruct the jury that, if the dangerous condition of the crossing enhanced the danger of accidents and collisions, it was the duty of defendant in running its train to exercise a degree of care commensurate with the danger of collision reasonably to be apprehended at that place.

      2. -: -: Conflicting Instructions. Instructions for plaintiff and defendant should not conflict. An instruction for defendant that the only duty of the engineer of a train approaching a road crossing was to sound the whistle at least eighty rods before the engine reached the crossing, and to ring the bell from the time the whistle was sounded until the engine passed over said crossing, and that if the jury believed defendant discharged these duties they could not find a verdict for plaintiff because of the failure of the train to slow down, etc., is in conflict with an instruction which imposes upon those in charge of the train the additional duty of exercising a degree of care in the operation of the train commensurate with the danger of collisions reasonably to be apprehended at such crossing.
    3. -: Failure to Sound Whistle or Bell: Contributory Negli'-, gence: Neither Looking nor Listening. An adult person about to cross a railroad at a country road crossing is not in the exercise of ordinary care unless he looks or listens for an approaching train; and if by listening he could have heard, or by looking he could have seen, the approaching train in time to have avoided being struck by it, but did neither, he is guilty of contributory negligence, and cannot recover although defendant’s servants in charge of the train were guilty of negligence in failing to sound the whistle eighty rods from the crossing and in failing to keep the bell ringing until the crossing was passed.
    4. -: -: -: -: Concurrent Negligence. If a traveler attempting to cross a railroad track at a public crossing is injured by reason of the concurrent fault of himself and the railroad company, he cannot recover damages for his injuries.
    5. -: Presumption That Traveler Looked and Listened. The presumption indulged, in the absence of any evidence as to whether the traveler looked or listened as he approached the railroad crossing, that he did look or listen, is overcome by the irresistible conclusion that had he listened he could have heard, or had he looked he could have seen, the train in time to have avoided the accident. It is also overcome by the uncontradicted evidence of a witness for defendant that the deceased traveler did in fact look around and saw the train before entering upon the track.
    6. -: Discovering Traveler’s Peril: Failure to Avoid Injury. Those in charge of a train have the right to assume that a traveler on a public road will not leave a place of safety and enter a place of danger, by attempting to cross the track in front of an oncoming train; and if the evidence shows that they did everything in their power to stop the train after they discovered his perilous position, the company cannot be held liable because they did not stop the train in time to avoid the injury.
    7. -: Demurrer. Under the facts in this ease the court should have given defendant’s instruction in the nature of a demurrer to the evidence asked at the close of all the evidence.
    Appeal from Lafayette Circuit Court. — Hon. Samuel Davis, Judge.

    Reversed.

      Martin L. Glardy and W. W. Graves for appellant.
    (1) The third-ground of negligence which charges the frightening of the team is thoroughly eliminated from the case both by law and by the evidence. Seeing a person in danger it became the duty of the company to give him the usual and ordinary danger signals and these are all shown to have been given. Further, the evidence fails to disclose the frightening of the team. (2) The evidence clearly shows that defendant’s demurrer to the testimony offered both at the close of plaintiff’s case and at the close of the entire case should have been given. There is no showing whatever in this record which would justify the conclusion that had the deceased before undertaking to attempt to cross said crossing, looked and listened, with any care whatever, he would not have seen or heard the train, (a) Persons entering railway crossings are bound to exercise ordinary care and prudence, and failing in this, if injured by the concurrent fault of themselves and the railway company, they cannot recover. Jones v. Barnard, 63 Mo. App. 501. (b) A person who is about to cross a railway track must look and listen, when by listening he can hear and by looking he can see the approaching train, and the omission to do either will bar recovery. Boyd v. Railroad, 105 Mo. 371; Fusili v. Railroad, 45 Mo. App. 535; Drake v. Railroad, 51 Mo. App. 562; Maxey v. Railroad; 113 Mo. 1; Sullivan v. Railroad, 117 Mo. 214; Fellenz v. Railroad, 106 Mo. .154. (3) The fireman testified that he saw the deceased after he left the wagon bridge and before he started to make the crossing. "When the train crew saw him start from the county bridge to this crossing, they had the right to presume that the deceased would avoid the danger and were not negligent in not- stopping the train until they saw he was in an actual perilous position. Schmidt v. Railroad, 90 S. W. 136; Guyer v. Railroad, 170 Mo. 350; Carrier v. Railroad, 175 Mo. 482; Sharp v. Railroad, 161 Mo. 235; Tanner v. Railroad, 161 Mo. 497; Hayden v. Railroad, 124 Mo. 573; Reno v. Railroad, 180 Mo. 469. (4) Even if there was a failure to give the signal required by law, yet if the person without looking and listening placed himself in a dangerous position, there was such contributory negligence as bars recovery. Maxey v. Railroad, 113 Mo. 1; Butts v. Railroad, 98 Mo. 272; Henze v. Railroad, 71 Mo. 636 ; Booker v. Railroad, 122 Mo. 533; McNamee v. Railroad, 135 Mo. 440; Green v. Railroad, 90 S. W. 805; Hook v. Railroad, 162 Mo. 569 ; Schmidt v. Railroad, 160 Mo. 43. (5) Even if the view is obstructed in his approach to the crossing, as is the fact in- the case at bar, the traveler must continue to look and listen until the crossing is reached and the danger point passed. In this case the undisputed evidence is that had this man within thirty or forty feet or more of this crossing looked in the direction of this train he could have seen it and stopped, and there is no excuse on earth for his death save his contributory negligence. It stands without question that had he listened as the law requires he could have heard the train before trying to make the crossing. There are a number of cases covering the exact situation in this case beginning with Kelsey v. Railroad, 129 Mo. 362; Jones v. Barnard, 63 Mo. App. 50Í; Weller v. Railroad, 120 Mo. 635; Stevens v. Railroad, 67 Mo. App. 356; Lien v. Railroad, 79 Mo. App. 475; Weller v. Railroad, 164 Mo. 180; Fusili v. Railroad, 45 Mo. App. 535; Schmidt v. Railroad, 90 S. W. 136.

      John M. Redmond and Wm. Aull for respondent.
    (1) In the absence of any evidence on plaintiff’s behalf as to acts of care on the part of decedent, he is presumed to have looked and listened and to have exercised ordinary care in attempting to go over the crossing to avoid possible collision with the defendant’s train. Riska v. Railroad, 180 Mo. 188; Weller v. Railroad, 164 Mo. 198; Petty v. Railroad, 88 Mo. 320; Schlereth v. Railroad, 115 Mo. 87; Crumpley v. Railroad, 111 Mo. 158; Buesching v. Gas Light Co., 73 Mo. 219; Meadows v. Ins. Co., 129 Mo. 76; Bludorn v. Railroad, 108 Mo. 439; Parsons v. Railroad, 94 Mo. 294; Eckhard v. Railroad, 89 S. W. 608; Ryan v. Railroad, 89 S; W. 869; Weller v. Railroad, 120 Mo. 650; O’Con-nor v. Railroad, 94 Mo. 150; Johnson v. Railroad, 77 Mo. 546; Thompson v. Railroad, 51 Mo. 190; Donahue v. Railroad, 91 Mo.' 357; Huckshold v. Railroad, 90 Mo. 548. The natural instinct to avoid injury is always an element of evidence. Meadows v. Ins. Co., 129 Mo. 93; Davis v. Railroad, 46 Mo. App. 189. (2) The evidence on the part of plaintiff was very clear and convincing that the whistle was not blown or bell rung at or near the whistling post or elsewhere until just as the decedent was killed. The failure to give the statutory signals was negligence per se on part of defendant. Lloyd v. Railroad, 128 Mo. 595; Sullivan v. Railroad, 117 Mo. 245; Gratiot v. Railroad, 116 Mo. 450; Murray v. Railroad, 101 Mo. 242; Dickson v. Railroad, 104 Mo. 501; Henlon v. Railroad, 104 Mo. 387; Karle v. Railroad, 55 Mo. 47. (3) The establishment of point 1 and 2, above, casts the burden on the defendant, first to show that the failure to ring the bell or blow the whistle did not canse the death of decedent; second, to satisfactorily prove contributory negligence on the part of decedent. R. S. 1899', sec. 1102; Crumpley v. Railroad, 111 Mo. 158; Hook v. Railroad, 162 Mo. 603; Petty v. Railroad, 88 Mo. 321; Green v. Railroad, 90 S. W. 805; Riska v. Railroad, 180 M<>- 188; Weller v. Railroad, 164 Mo. 200; Huekshold v. Railroad, 90 Mo. 556; Kennayde v. Railroad, 45 Mo. 262. (4) Unless the evidence for plaintiff clearly shows contributory negligence, it follows logically from points 1, 2, and 3, foregoing, that where the evidence of contributory negligence is offered by the defendant, the question is for the jury. The case should go to the jury, first, when there is room for a difference of opinion among practical men from all walks of life as to whether there was care and caution on part of deceased; second, when there is a conflict in the evidence; third, when the truthfulness of a witness is in question. Eckhard v. Railroad, 190 Mo. 593; Church v. Railroad, 1191 Mo. 215; Franklin v. Railroad, 188 Mo. 542; Field v. Railroad, 88 S. W. 134; Jones v. Barnard, 63 Mo. App. 509 ; Lamb v. Railroad, 147 Mo. 186; Jennings v. Railroad, 112 Mo. 277; Stone v. Hunt, 94 Mo. 475; Buesching v. Gas Light Co., 73 Mo. 219; Railroad v. Miller, 99 Fed. 529; Keun v. Railroad, 90 Mo. 314; Huekshold v. Railroad, 90’ Mo. 548; Kelly v. Railroad, 101 Mo. 67; Petty v. Railroad, 88 Mo. 318; Kennayde v. Railroad, 45 Mo. 255; Warren v. Exchange, 52 Mo. App. 157; Weller v. Railroad, 164 Mo. 199; Gannon v. Gas Co., 145 Mo. 502; Hutchinson v. Railroad, 161 Mo. 255; Baker v. Railroad, 122 Mo. 544. (5) Before a demurrer could be sustained at the close of the entire case, on account of contributory negligence, all the facts developed in the trial of the cause upon a fair and reasonable consideration, must point irresistibly to but one conclusion. If reasonable men might differ as to inferences to be drawn from facts disclosed, under well-settled rules the question of contributory negligence must be left to the jury. Eckhard v. Railroad, 190 Mo. 598; G-annon v. Gas Co., 145 Mo. 502. In order to overcome the presumption in favor of decedent and to defeat plaintiff’s action, it devolved upon defendant to show by the weight of the evidence a failure on the part of the deceased to exercise ordinary care to avoid the injury, and that his failure to exercise such care was its proximate cause and so direct and immediate that hut for the want of such ordinary care the injury would not have occurred. Riska v. Railroad, 180 Mo. 189 ; Weller v. Railroad, 164 Mo. 199; Fields v. Railroad, 88 S. W. 134. (6) The jury have a right to say of the testimony of any witness, “that it wants in the power to convince.” Gannon v. Gas Co., 145 Mo. 5191; Seshom v. Bank, 148 Mo. 265; Gregory v. Chambers, 78 Mo. 294; Wolfe v. Campbell, 110 Mo. 114; Mineral Land Co. v. Ross, 135 Mo. 107; Schroeder v. Railroad, 108 Mo. 322; Davies v. Railroad, 159 Mo. 1. (7) The deceased had the right to presume that defendant would do its duty, and to rely on the performance of such duty. Weller v. Railroad, 120 Mo. 653; Sullivan v. Railroad, 117 Mo. 214; Jennings v. Railroad, 112 Mo. 420; Crumley v. Railroad, 111 Mo. 152; Kennayde v. Railroad, 45 Mo. 261; Tabor v. Railroad, 46 Mo. 356; Hutchinson v. Railroad, 161 Mo. 255; Peterson v. Railroad, 89 S. W. 1042; Riska v. Railroad, 180 Mo. 188; Petty v. Railroad, 88 Mo. 318; Johnson v. Railroad, 77 Mo. 546; Halferty v. Railroad, 82 Mo. 99. (8) Decedent was not a trespasser, hut had a right equal to that of defendant to the use of the road and the right to presume defendant would obey the law. Riska v. Railroad,. 180 Mo. 191; Nixon v. Railroad, 141 Mo. 425; Baker v. Railroad, 147 Mo. 140; Rapp v. Railroad, 190 Mo. 144; Baker v. Railroad, 147 Mo. 232; Klockenbrink v. Railroad, 172 Mo. 689. If obedience •to law would have prevented injury, defendant was negligent and plaintiff is entitled to recover. Hanlon y. Railroad, 104 Mo. '387; Karle v. Railroad, 55 Mo. 482; Zimmerman v. Railroad, 71 Mo. 476; Barkley v. Railroad, 76 Mo. 367; Henry v. Railroad, 76 Mo. 293. (9) If the defendant’s agents (a) could have discovered the perilous situation of Porter, or (b) did so discover it in time to have prevented the accident and did not do so, then defendant is liable even though Porter was negligent. Kloekenbrink v. Railroad, 172 Mo. 682; Sullivan v. Railroad, 117 Mo. 245; Morgan v. Railroad, 157 Mo. 262; Kelly v. Railroad, 101 Mo. 269; Scullin v. Railroad, 184 Mo. 695; Rapp v. Railroad, 190 Mo. 144; Fearons v. Railroad, 180 Mo. 208; Donohue v. Railroad, 75- Mo. 610, 83 Mo. 555; Schmidt v. Railroad, 90 S. W. 140; Buyer v. Railroad, 174 Mo. 350; Woods v. Railroad, 188 Mo. 229. “It was as much the duty of the railroad employees to look out for him on the track as it was for him to look out for the train.” Eswin v. Railroad, 96 Mo. 290; Kellny 'v. Railroad, 101 Mo. 78; Sluder v. Railroad, 88 S. W. 653; Scullin v. Railroad, 184 Mo. 705. (10) The case below was properly sent to the jury on the last-chance doctrine of the law, if that were the only issue in the case. Dieter v. Zbaren, 81 Mo. App. 615; Fearons v. Railroad, 180 Mo. 209. (11) “Because one who finds himself suddenly in a position of peril does not choose the safer of open courses for him to pursue, he is not for that reason alone chargeable with negligence.” Dalton v. Railroad, 104 Iowa 27; Lorenz v. Railroad, 88 N. W. 835; Crawford v. Railroad, 109 Iowa 433. The exact point applicable to this was decided in-Bien v. Railroad, 108 Mo. App. 415. Brazis v. Railroad, 102 Mo. App. 227; Dickson v. Railroad, 124 Mo. 140.

       Decided May 22, 1906. Motion for rehearing filed; motion overruled November 20, 1906.

   BURGESS, P. J.

This is an action by plaintiff, the widow of E. B. Porter, deceased, against the defendant company, to recover the sum of five thousand dollars damages, under the provisions of section 2864, Revised Statutes 1899; known as the second section of the Damage Act. The petition upon which the case was tried was the second amended petition, in two counts; but as the recovery was upon the first count, the second count will not be further noticed. Said first count alleges:

‘ ‘ That the death of the said E. B. Porter was due to the gross, wanton and willful negligence of the defendant and its agents and employees, its engineer and fireman in charge of said train, as follows:
“1st. That the defendant through its agents and employees had knowledge of the dangerous conditions about, on and surrounding said crossing and approach to the same, hereinbefore stated, at the place where the said E. B. Porter was killed, and that said crossing, on account of the conditions prevailing, was dangerous, and that a team and driver were liable to be caught on the said crossing on account of said prevailing conditions ; and in failing to have its train slowed down and under control approaching said crossing, and in running the same up to said crossing at a high rate of speed.
“2nd. In failing to sound the whistle or ring the bell of said engine as the said engine approached said crossing eighty rods before reaching said crossing, and in failing to continue to sound said whistle at intervals or to keep the bell ringing until said crossing was passed, as provided by law.
“3rd. In sounding the locomotive whistle continuously on the immediate approach of said crossing, thereby frightening the team of horses driven by the decedent E. B. Porter, and preventing them from crossing to a point of safety.
“4th. In the failure of the defendant through its agents and employees to observe the perilous position of the decedent E. B. Porter with the team of horses on the crossing at which he was killed, in time to have stopped the train or to have prevented the collision and its results as herein described.
“5th. In the failure of the defendant and its employees, the engineer and fireman in charge of said train, to stop the same or make an effort to do so, after discovering the peril of E. B. Porter, decedent, with the team on the crossing, or to avert the collision with the said decedent and the said team.
“That hy reason of the killing of the said E. B. Porter the plaintiff has been damaged in the snm of five thousand dollars, no part of which has been paid or satisfied in any way.
“Wherefore, plaintiff asks judgment against the-defendant for the sum of five thousand dollars and for her costs.”

By answer, defendant denied all the allegations in both counts and pleaded contributory negligence on the part of the deceased. Plaintiff replied, denying all new matter in said answer contained.

Upon a trial before the court and jury, plaintiff recovered a verdict upon said first count of the petition for $5,000, upon which judgment was rendered. Within four days after verdict the defendant filed motion for new trial, which was overruled, and defendant appealed.

The material facts, as disclosed by the record, are substantially as follows:

The deceased was killed by one of defendant’s passenger trains about six o’clock on the evening of March 6,1902, while attempting to cross the track of said railway while on his way with a wagon and team from Lexington to Wellington in Lafayette county. He crossed the track at the point of the accident twice almost every day, and knew the time the train was due there. It was open daylight at the time of the accident. The only witnesses to the accident were the fireman and engineer of the train, which was running at the time at a speed of about thirty miles an hour. The train was westbound from Lexington to Wellington, and on time ' when it left Lexington, about five or six miles east of the place of the accident. At the time of the accident deceased was sitting in a common farm wagon drawn by two horses. He had been engaged for some time in hauling flour from Wellington to Lexington for a milling company, and was familiar with this railway crossing, its situation and surroundings. The usual warning signal of danger was in plain view at the crossing. Back from the scene of the accident for at least a quarter of a mile northeastward, which was the direction from which deceased was traveling and the direction from which the train that struck him approached, the county road and the railway ran practically parallel, and for the greater part of the way the county road was in proximity to the right of way. The elevation of the track was three or four feet above the county road, and the evidence showed that a person traveling westward toward the crossing where the accident occurred could, on crossing the county bridge over the Little Sni, one hundred and twenty feet from the railway crossing, see a train half a mile down the track, but that he loses sight of it as it approaches on account of timber until the train gets within one hundred feet of the bridge across Cow Creek, which bridge across Cow creek is about seven hundred feet from the place of the accident; that a traveler in a wagon, when arrived at the crossing, could see up the track six or seven hundred feet.

There was at the time of the accident, and for several months or a year prior thereto, a hole, two or three feet deep, between the right of way fence and the crossing, so that a land of temporary wagon way had been formed by teams passing around the hole.

Plaintiff introduced evidence showing and explaining the elevation of the bridges, the railroad and wagon road, the curve of the railroad approaching the point where the accident occurred; the trees, vines and underbrush bordering the railroad track and wagon road; also as to the vision of the approaching train from the wagon bridge over the Little Sni and from the crossing.

The evidence upon the part of the defendant showed affirmatively that the whistle on the train was sounded near the whistling post, 1320 feet northeast of the crossing, and that the whistle' was sounded a number of times again as soon as the deceased was discovered approaching the crossing. Plaintiff introduced a number of witnesses, some of whom were passengers on the train, at the time, who testified that they did not-hear the bell ring or the whistle sound.

The court, at the instance of the plaintiff, instructed the jury, with respect- to the first allegation of negligence in the petition, as follows:

“The jury are instructed that if they believe from the evidence 'that the crossing in controversy was of such a character as to enhance the danger of collision and accidents at said crossing, it was the duty of the servants, agents and employees of defendant in managing or running said locomotive and train of cars to exercise a degree of care in the operation of said train commensurate with the danger of collision reasonably to be apprehended at that location.
“And if the jury further believe from the evidénce that the agents, servants and employees of defendant failed to exercise such commensurate degree of care in the movement of such locomotive and train of cars as it approached and passed over said crossing, either by not keeping the bell on such locomotive ringing from a point eighty rods before said train reached said crossing or sounding the whistle on said locomotive at said point eighty rods before reaching said crossing, and continuing to sound the same at intervals until said locomotive passed said crossing such failure in any of said particulars constituted negligence on the part of said defendant.
‘ ‘ And in passing on the question as to whether the agents, servants and employees of the defendant were or were not negligent in running or managing said locomotive and train in any of the particulars aforesaid, you should take into consideration all of the facts and circumstances which you may find from the evidence existed at the time when and at the place where the injury occurred. And if you further believe from the evidence that in consequence of such negligence in any one or more of the respects hereinbefore mentioned the said E. B. Porter received the injuries from which he died, you will find your verdict for the plaintiff, unless you further believe from the evidence that the deceased was guilty of negligence which directly contributed to his death. And the burden of proving contributory negligence on the part of E. B. Porter rests on the defendant, and unless the defendant has proven such contributory negligence by a preponderance of the evidence, or unless said contributory negligence is shown by plaintiff’s evidence, you cannot find for the defendant on that ground.”

This instruction is erroneous and vicious. Its first sentence directs the attention of the jury to the dangerous condition of the crossing, and tells them that if the crossing was of such a character as to enhance the danger of collisions and accidents at such crossing, it was the duty of the servants, agents and employees of defendant, in managing or running said locomotive and train of cars, to exercise a degree of care commensurate with the danger of collision reasonably to be apprehended at that location, when in fact the evidence does not show that the existence of the hole or condition of the crossing had anything whatever to do with the collision. The wagon was not loaded, and its passage over the crossing was not impeded, though it might have been slightly delayed by reason of the necessity of driving around the hole. In order to have entitled plaintiff to recover on account of the condition of the crossing, it devolved upon her to show that its condition directly caused or contributed to the death of her husband, which the evidence in no way shows. There was, therefore, nothing upon which to bottom this part of the instruction, and the mere fact that the crossing might have been of such a character as to enhance the danger of collisions and accidents is not a sufficient ground of negligence to entitle plaintiff in this case to recover. Besides, this instruction as a whole is in direct conflict with defendant’s instruction No. 4, which is as follows:

“As to said first alleged act of negligence under the first count of plaintiff’s petition, the court instructs the jury that although they may believe from the evidence that the crossing on which plaintiff’s husband was struck was dangerous for the crossing of teams by reason of the' near location of the wagon road and the railroad to each other, and the nearness of the wagon road and the railroad bridges across a stream known as Little Sni, near said crossing, and that the approach thereto was steep and over loose stones, and by reason of a sharp curve in the railroad approaching said bridge from the east and by reason of such railroad running through weeds, vines, underbrush and trees, and that the defendant through its employees knew such surroundings near said crossing, yet in approaching said crossing it was not the duty of the defendant’s employees running the engine and train which struck the plaintiff’s husband, to slow down the speed of its train nor to avoid approaching said crossing at the usual and ordinary rate of speed.
“The only duty of said engineer on approaching said crossing, so far as the character and condition of said crossing is concerned, was to sound the whistle of his engine at least eighty rods before his engine reached said crossing, and to ring the bell thereof from the time said whistle was sounded until his engine passed over said crossing. In other words, such engineer owed no other or greater duty to the public under the law when approaching the crossing in question than he owed when approaching any other crossing over the railroad track, and if the jury believe that the engineer in charge of the engine which struck the plaintiff’s husband sounded the whistle of his engine at least eighty rods before his engine reached said crossing and rang the bell thereof from the time said whistle was sounded until his engine passed over said crossing, then the jury cannot find a verdict in plaintiff’s favor on the first or second alleged acts of negligence in the first count of plaintiff’s petition.”

It will be observed that by this instruction the jury were told that the only duty of the engineer, on approaching said crossing, so far as the character and condition of said crossing was concerned, was to sound the whistle of his engine at least eighty rods before the engine reached said crossing, and to ring the bell thereof from the time said whistle was sounded until his engine passed over said crossing, and that, in effect, if the jury believed the engineer discharged these duties they could not find a verdict in plaintiff’s favor on the first or second alleged acts of negligence in the first count of the petition; while, by plaintiff’s instruction aforesaid, there was imposed upon those in charge of the train the further and additional duty of exercising a degree of care in the operation of such train commensurate with the danger of collision reasonably to be apprehended at that location, and that if they failed to do so, and in consequence thereof the said E. B. Porter received the injuries from which he died, the jury should find for the plaintiff.

The two instructions are clearly in conflict and irreconcilable.

The most that can be said for plaintiff with respect to the alleged failure of those in charge of the train to sound the whistle and ring the bell when approaching the crossing is that the evidence is somewhat conflicting, and that as the question was properly submitted to the jury and they found that those in charge of the train failed to ring the bell or sound the whistle as required by law, this court should not, therefore, interfere with the verdict. But conceding that question to be settled in plaintiff’s favor, that is, that defendant’s servants in charge of the train were guilty of negligence because of failure to sound the whistle at least eighty rods before the engine reached the crossing and to keep the bell ringing until said crossing was passed, as provided by law, that would not entitle plaintiff to recover, provided the deceaséd was guilty of negligence contributive to his death. There is no pretence that he either looked or listened when about to cross the track, when by listening he could have heard, and by looking he could have seen, the approaching train in time to have avoided the injury. In doing so he would simply be exercising that ordinary care which the law requires of all adult persons when about to cross a railroad track at a public crossing, and if a person in crossing such track is injured by reason of the concurrent fault of himself and the railroad company he cannot recover. [Jones v. Barnard, 63 Mo. App. 501.]

It is well settled in this State that when a traveler approaches a railroad crossing he must look both ways and listen for coming trains, and the negligence of the company in failing to give proper signals will not excuse the traveler’s duty to look and listen. [Fletcher v. Railroad, 64 Mo. 484; Zimmerman v. Railroad, 71 Mo. 476; Baker v. Railroad, 122 Mo. 533; Stepp v. Railroad, 85 Mo. 229; Donohue v. Railroad, 91 Mo. 357; Butts v. Railroad, 98 Mo. 272; Schmidt v. Railroad, 191 Mo. 215.]

In response to this well-settled rule plaintiff contends that, in the absence of any evidence on plaintiff’s behalf as to acts of care on the part of deceased, he is presumed to have looked and listened and to have exercised ordinary care to avoid possible collision with defendant’s trains while he was attempting to cross the track. This may be conceded to be well-settled law, as the authorities cited by counsel for plaintiff abundantly show; but this presumption is overcome by the logical and irresistible conclusion that deceased, had he listened, could have heard the train, and, had he looked, he must have seen it in time to have avoided the collision, and having failed to take such precautions he was guilty of negligence as a matter of law. [Schmidt v. Railroad, supra.] Besides, the uncontradicted evidence of the fireman on the engine was that the deceased did, in fact, look around before entering upon the track and that he saw the train, but that Porter “drove directly on the crossing, he urged his horses right over the crossing of the track,” which affirmatively shows negligence on the part of the deceased.

There remains for consideration but one other question, which is as to whether defendant’s employees in charge of the train could have discovered the perilous situation of Porter, or did so discover it, in time to have prevented the collision, and did not take proper and necessary steps to prevent it. To determine this question we must look to the testimony of the fireman on the train, the only witness who was in a position to see the whole occurrence. He testified as follows:

“ Q. As you ran up toward the trestle work across Cow Creek and Sni crossing, state to the jury if you saw at any time Mr. Porter or the man that was struck, on the country road, and if so, where you first saw him and where the engine was? A. Well, of course you understand there is a curve in the track, you have to go around the bulk of the curve before you can see. • The bridge of course is on the left hand side as you go around the curve, I saw the team approaching the bridge. Now they kept going right along and I watched them and when they got a little closer around the team started up in a trot and I says to the engineer, ‘ There is a team on the bridge, ’ I says, There is á man on the bridge.’
“Q. What did he do, if you remember? A. Shut off his steam and blowed the whistle.
“Q. Did you say anything else to him? A. I said, ‘I believe he is going to cross ahead of us.’ During this time this man looked around and saw the engine.
“Q. What did he do then? A. He urged his horses ahead.
“Q. What did the engineer do, if anything, when you told him you believed he was going to cross the track? A. The engineer put on his air.
“Q. Do you know what is 'meant by the emergency stop? A. Yes, sir.
“ Q. Well, how did he put on his air then ? A. He set his air, I couldn’t say just how.
“Q. What happened after that, how did the man in the wagon proceed, tell it just as you saw it, just tell as you saw it there, and if the man drove directly on the crossing? A.' Why, the man drove directly on the crossing, he urged his horses right over the crossing of the track. •
“Q. Now state to the jury, it struck on the crossing right there, did it? A. Yes, sir.
“Q. At the Little Sni crossing? A. Yes, sir.
“Q. From the time you saw that man as he was approaching from the county bridge until he went up on the crossing and was struck, was he out of your sight? A. No, sir, he was not.”

Those in charge of the engine had the right to presume that Porter would not leave a place of safety and enter a place of danger, and were not negligent in not stopping the train sooner, as the evidence clearly shows that they did everything in their power to stop or check up the train after they discovered the perilous position of the deceased. There is no evidence showing or tending to show that those in charge of the train were derelict in this regard.

It is manifest, from the evidence, that the deceased could not have failed to see the approaching train, and that in fact he did see it, but that he nevertheless urged his team over the crossing. And although “the defendant may have been negligent in failing to give signals for the crossing, . . . yet the deceased having lost his life through his own negligence in failing to discharge the duty imposed upon him by law, in his situation, the plaintiff cannot recover for his death.” [Hayden v. Railroad, 124 Mo. 566; Sanguinette v. Railroad, 196 Mo. 466.]

Our conclusion is that the court should have given the instruction in the nature of a demurrer to the evidence, at the close of all the evidence, as asked by defendant. The judgment is reversed.

All concur.


source: Caselaw Access Project

author: FOX, J.

license: Public Domain

text:
    THE STATE v. TETRICK, Appellant.
    Division Two,
    November 20, 1906.
    1. CONFLICT IN EVIDENCE: Province of Jury. It is the province of tke jury to settle conflicts in tke testimony. And • where tkere is substantial testimony to support tbe verdict, the appellate court will not interfere.
    2. ASSAULT WITH INTENT TO KILL: Sufficiency of Evidence: Instructions. Evidence held sufficient to justify the verdict finding defendant guilty of assault with intent to kill, and instructions, set out in the statement, held, to correctly declare the law.
    Appeal from Ozark Circuit Court. — Ho». Argus Cox, Judge.
    Affirmed.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The instructions were full and fair, and presented the case liberally for the defendant. Their form and substance have often met with the approval of this court. (2) Where there is substantial evidence tending to show defendant’s guilt, this court will not undertake to weigh the evidence, but will defer to- the action of the jury in such matters. State v. Smith, 190 Mo. 706; State v. Williams, 186 Mo-. 128; State v. Williams, 149 Mo. 500.
   FOX, J.

This cause is brought here upon appeal from a judgment of the circuit court of Ozark county, convicting the defendant of an assault with intent to ldll.

On December 26, 1903, the prosecuting attorney of Ozark county filed an information, under oath, charging the defendant with an assault with intent to kill one Sarah Combes. The'date of the alleged offense was September 22, 1903, and a heavy stone was the deadly weapon charged to have been used. On defendant’s application, a change of venue was awarded him on account of the prejudice of the judge, and Hon. Argus Cox was called in to try the case. Defendant was put upon his trial at the July term, 1905, of the Ozark County Circuit Court. The sufficiency of the information is nowhere challenged either in the motion for new trial or by a timely motion in arrest of judgment; hence, there is no necessity for reproducing it in the statement of the case. Upon the trial the record discloses that the testimony of the State tended to prove the following state of facts:

That Mrs. Combes lived with her husband and four children on a farm near the town of Dora in Ozark county, and the defendant lived on another farm near there. On the date of the alleged offense, Mrs. Combes was in her house and called to one of her little girls, who was in Mrs. Combes ’ meadow. Defendant was also in this meadow, and, when Mrs. Combes would call the little girl, defendant would'call back, “Go to hell.” Defendant then came towards Mrs. Combes ’ barn lot, and repeated the above expression when Mrs. Combes called her son. Mrs. Combes then ordered defendant off her place; bnt defendant said that he would go across her place whenever he pleased and go wherever he pleased. The second time Mrs. Combes ordered defendant to leave and he replied with an oath and got over the fence into the public road. In a moment, defendant climbed back over the fence, saying he would kill Mrs. Combes and stamp her in the ground; he also used profane and vulgar' language. When he was in the road, defendant picked up a rock and carried this rock in his right hand and tried to strike Mrs. Combes on the head. Just at that time, Mrs. Combes’ son ran up, pushed defendant back and prevented him from hitting' Mrs. Combes with the rock; but defendant did strike her on the head twice with his fists.

The testimony on the part of the defendant substantially tended to prove that some days prior to the date of the alleged difficulty, defendant’s horses got into Mrs. Combes’ meadow and were taken up by her and put in a stable, and on this day, defendant’s horses were out again, and he was looking for them. That Mrs. Combes did not like defendant, and that she came down to where he was and threw a stick of stove wood at him; and that then he slapped her and pushed her back. Defendant further testified that he did not strike Mrs. Combes with a rock, and did not have a rock in his hand, but that she threw a rock and struck him on the side.

At the close of the evidence the court instructed the jury fully upon every phase of the case to which the testimony was applicable. The only instructions complained of in the motion for new trial are Nos. 1, 2, 3 and 5, which were as follows:

“1. The court instructs the jury that if you believe from the evidence that the defendant, at the county of Ozark and State of Missouri, on or about September 22, 1903, did on purpose and of his malice aforethought assault Sarah Combes with a rock, and shall further believe that such rock was at the time a dangerous and deadly weapon and that this assault was made with the intent to kill Sarah Combes or to do her some great bodily harm, yon will find the defendant guilty as charged and assess his punishment at im-prisonment in the penitentiary not less than two years nor more than ten years.
“2. If yon shall believe that defendant on or about September 22, 1903, at the county of Ozark and State of Missouri assaulted Sarah Combes with a rock with the intent to kill said Sarah Combes, or to do her some great bodily harm, but without malice aforethought, you will find him guilty and assess his punishment at imprisonment in the penitentiary not less than two years nor more than five years, or imprisonment in the county jail not less than six months, or imprisonment in the county jail not less than three months and a fine of not less than one hundred dollars.
“3. The term ‘malice’ as used in the information and instructions does not mean mere spite or ill-will, as the term is commonly understood, but in law it means the intentional doing of a wrongful act and signifies that state of mind or disposition which would prompt one person to take the life of another or do him some great bodily harm without just cause or excuse. ‘Aforethought’ means thought of beforehand, for any length of time, however short.
“5. To constitute an assault upon Sarah Combes by defendant, it is not necessary that he should have actually struck her with the rock, but if while in striking distance of her he raised the rock into a striking position and attempted to strike her but was prevented by the son of Mrs. Combes from striking her, this action upon the part of defendant would constitute an assault upon said Sarah Combes with the rock.”

The cause was submitted to the jury upon the evidence developed at the trial and the instructions of the court, and a verdict of guilty was returned, assessing defendant’s punishment at a fine of one hundred dollars. A timely motion for new trial was filed and by the court overruled. Judgment was entered in conformity to the verdict, and from this judgment defendant prosecutes this appeal, and the cause is now before us for consideration.

OPINION.

Counsel for appellant in the ‘trial court have not filed any brief or suggestion as to the errors complained of in the motion for new trial; hence, in obedience to the provisions of the statute in criminal cases where the appellant is not represented in this court we have carefully considered the disclosures of the record in this cause. We are unable to discover any reversible error in the trial of this cause. There is no complaint in the motion for new trial upon the subject of improper admission of evidence or the erroneous exclusion of testimony offered by defendant; hence, there is nothing before us for review upon that subject.

We have indicated the instructions to which appellant directs his complaint, and it is sufficient to say upon this complaint that we have carefully considered all the instructions given in this cause and find that they correctly declare the law applicable to the facts of this case, and substantially conform to approved precedents of this court.

As to the sufficiency of the evidence to support the verdict, it is only necessary to say that it is true the record discloses a sharp conflict in the evidence between the State and the defendant, yet if the jury believed the evidence introduced by the State it was ample to warrant the finding of the jury. It was exclusively the province of the jury to pass upon the facts developed upon the trial, and equally their duty to settle any conflict arising in the testimony. It has been the uniform ruling of this court that where there is substantial evidence to support the verdict the case will not be retried in the appellate court upon the facts disclosed by the record; nor will this court undertake to weigh the evidence and settle the conflicts that may appear in it. There is sufficient evidence disclosed by the record to support the finding of the jury, and we must decline to interfere with such finding.

The judgment of the trial court should be affirmed, and it is so ordered.

All concur.


author: GANTT, J.

text:
    THE STATE v. MITCHELL, Appellant.
    Division Two,
    November 20, 1906.
    APPEALS: Jury Not Sworn: Judgment Reversed. Where the record proper in a criminal appeal fails to show that the jury was sworn to try the cause, the judgment will he reversed and the cause remanded.
    Appeal from Lincoln Circuit Court. — How. H. W. Johnson, Judge.
    Reversed and remanded.

      Chas. Martin and E. B. Woolfolk for appellant.
    The record must show that the jury was not only impaneled but was also sworn to try the issues in the cause. State v. Potter, 18 Conn. 175; Zapf v. State, 35 Fla. 210; Rich v. State, 1 Tex. App. 209; Stephens v. State, 33 Tex. App. Cr. 101; Lyman v. People; 7 111. App. 345; State v. Pritchard, 15 Nev. 88; Lannaster v. State, 91 Term. 267; State v. Ostrander, 18 Iowa 446; State v. Schoenwald, 31 Mo. 147; State v. Temple, 194 Mo. 237; Brewer v. Jacobs, 22 Fed. 142.

      Herbert 8. Hadley, Attorney-Genera] and N. T. Gentry, Assistant Attorney-General, for the State.
   GANTT, J.

On an information filed by the prosecuting attorney of Lincoln county on September 22, 1903, the defendant was arraigned and tried at the April term, 1904, of the circuit court of said county and convicted of an attempt to rape.

After motions for a new trial and in arrest of judgment had been duly filed, heard and overruled, he appealed to this court. The sole error upon which a reversal is sought is that the record upon its face discloses that the jury» which tried and convicted defendant was not sworn to try the cause and a true verdict render according to the law and the evidence.

When the prosecuting attorney discovered that the record entry of the empaneling of the jury and the trial of the cause failed to show that the jury was sworn to try the cause, he gave notice to the defendant and filed a motion for a mmc pro tunc entry showing the jury was sworn, but the circuit court, after hearing the evidence and examining the minutes of the judge and circuit clerk, refused to change the record. The error, if any, is one appearing upon the face of the record. The record recites the appearance of the State by the prosecuting attorney and of the defendant in his own proper person and by counsel, and that the following twelve were selected as a jury out of a panel of forty qualified jurors, to-wit (naming them), twelve good and lawful men summoned from the body of Lincoln county, and both parties announce ready for trial and thereupon the trial proceeds and the jury having heard the evidence, instructions of the court and argument of counsel, retire to their room to consider their verdict, are conducted into court by the sheriff and in the presence of the defendant return into court the following verdict: “We, the jury find the defendant guilty of attempt to rape and we assess his punishment at three * years in the State penitentiary. ’ ’

In Zapf v. State, 35 Fla. 210, the record recited that “the jury was impaneled to try the cause,” hut the Supreme Court held that it was fatally defective because the fact that the jury was sworn did not appear in the record, and, further, that the statement that the jury was impaneled was not sufficient; that the word “impaneled” did not imply that the jury was sworn, citing Lyman v. People, 7 Ill. App. 345; State v. Potter, 18 Conn. 166. In the last-cited case is an exhaustive discussion of the meaning of the word “impaneled” in the common law and. in English statutes. Among other things, the court said: “It is claimed that it means the jury sworn to try the cause; and that until sworn they are not empaneled. That they form a jury when thus empaneled, is true, but that they are not empaneled until sworn is not true. On the other hand, we learn from high authority that a jury are said to be empaneled when the sheriff has entered their names into the panel — a little piece of parchment. [Co. Litt. 158 b.] ” In Rich v. State, 1 Tex. App. 206, the record recited: “The following jury was impaneled.” Said the Court of Appeals: “The record nowhere shows that the jury were sworn in any manner. It may be said that the expression ‘the court impaneled the following jury’ necessarily implies that the jury were sworn, but we have examined Bouvier and Webster, and have been unable to find a definition of the word ‘empaneled’ or impaneled’ which would authorize this construction. In American practice the word ‘impaneled’ is used of a jury drawn for trial for a particular case by the clerk, as well as a general list of jurors returned by the sheriff. . . . Or it may be contended that the court would not have overlooked so important a feature in the trial of so important a case as the swearing of the jury. We concede that it is not probable that so important a fact was omitted, but it is the very object of making the record to perpetuate the transactions, and, the record purporting to state the transaction precisely as it occurred, what right have we to presume that it occurred in some other way?” Accordingly, it was held insufficient.

To the same effect is Lyman v. People, 7 Ill. App. 345; Slaughter v. State, 100 Ga. 323; Hunnel v. State, 86 Ind. 431. In Missouri the statute, section 2627, Revised Statutes 1899, requires the jury to be impaneled and sworn.

As well said by Judge Lumpkin, “It is essential to . the legality of any criminal trial that there should be a lawfully constituted tribunal; and where such trinunal is composed in part of a jury to whom the statute, in the plainest and most unmistakable terms, declares a given oath must be administered, how can the tribunal be considered as lawfully constituted unless the jurors actually take this oath either literally or in substance?” [See, also, Dresch v. State, 14 Tex. App. 175.] As it is everywhere held that the record proper in a criminal appeal must show that the jury was sworn to try the cause and this record fails to do so, the judgment must be reversed and the cause remanded for a new trial.

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


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    THE STATE v. HARRY H. VAUGHAN, alias HARRY VAUGHAN, Appellant.
    Division Two,
    November 20, 1906.
    1. ROBBERY: Sufficiency of Evidence. Evidence field sufficient to justify the verdict finding defendant guilty of robbery in the first degree.
    2. FORMER CONVICTIONS: Habitual Criminal. The records of defendant’s former convictions of felonies were properly admitted in evidence, and established the fact that he was an habitual criminal.

      Appeal from St. Louis City Circuit Court.— Hon. Eobt. M. Foster, Judge.
    Affirmed.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The State’s evidence was properly admitted; the record of defendant’s former convictions and terms in the State penitentiary certainly showed that he was an habitual criminal. R. S. 1899, sec. 2379; State v. Carr, 146 Mo. 1. (2) The evidence abundantly establishes the fact of defendant’s presence at the front door of Seiving’s drug store on the night of the robbery, and at the very time of the robbery. And the evidence further clearly shows that the man at said door had a pistol in his hand, and aided the robber in the store, counseled, advised and directed him in the perpetration of this crime. Standing guard for another who commits the crime of larceny, burglary or robbery is a participation in said crime, as has often been held. State v. Valle, 196 Mo. 29; 2 Russell on Crimes, p. 115; 2 Wharton’s Crim. Law, sec. 211a; 2 Bishop’s New Crim. Law, sec. 1180'.
   BURGESS, P. J.

The defendant was convicted in the circuit court of the city of St. Louis of robbery in the first degree as an habitual criminal. The offense of which he was convicted was alleged in the information to have been committed October 15, 1904. The name of the person robbed was Gustave W. Seiving, and the amount taken from him $24.

At a trial had on the 27th day of January, 1905, the defendant was tried, found guilty of robbery in the first degree as charged and his punishment fixed at thirty-five years in the penitentiary. He appeals and assigns error. Defendant is not represented in this court.

The facts, briefly stated, are, that at the time of the robbery Gustave W. Seiving was the owner of a drug store at No. 3601 Jefferson avenue, in the city of St. Louis. That at twenty minutes before eleven o’clock on the night of October 15, 1904, Seiving was in his store talking to a friend of his named Riley. Riley was near the front door and walking towards the door, when an unknown man (who afterwards turned out to be Bruce Morris) walked in at said door, pointed a pistol at Riley and demanded of him that the cash drawer be opened. Riley at first laughed, saying that he was not the proprietor, when Morris told him not to laugh, or he would get his head blown off. Just about that time, Seiving walked out from behind the prescription case, and Morris demanded of him to give over the money. Seiving walked with Morris to the cash register, opened it, and took out $24 which he gave to Morris, Morris still holding the pistol on Seiving. Morris then asked what money they had in their pockets, and Seiving gave him thirty cents, Riley having nothing. An effort was made to open the safe, but Seiving assured Morris that there was no money in the safe. After some more threats and striking of Seiving by Morris with his pistol, Morris started to leave. Both Riley and Seiving saw a white man standing at the front door at the time that Morris was in the store, who wore a black slouch hat. The man at the door called out to Morris to take Seiving back there and bust his head; and later on to get a couple of cigars, and finally said, “Just bring a box of cigars.” In response to this command, Morris did take a box of, cigars out of the show case and carried them’ off with him. The man at the door had a pistol in his hand, but Riley and Seiving were unable to recognize his face. A gentleman who passed the store at that time saw and recognized the defendant standing at the front door, saw that he was a white man and wearing a black slouch hat. The defendant held his right hand so that this witness could not see his pistol; but the witness looked at him and noticed his movements. As this witness was passing, defendant said, “Don’t look at me so hard, ” and the witness passed on. In about five minutes after the robbery, Seiving reported the same to the police, and search was begun. On October 21, 1904, the officers made a raid on the room occupied by defendant, Bruce Morris and others, and three of the officers were killed, and Morris was fatally wounded. The defendant was not in the room at the time, but was on the street, just two doors away, and was arrested. Seiving and Riley both recognized Morris after he was wounded and taken to the city hospital; and the gentleman who passed the drug store recognized the defendant. A forty-four caliber pistol was found in Morris’s room; and the defendant admitted to the officers and newspaper reporters that he occupied the same room with Morris, and that he and Morris came to St. Louis to engage in the business of house-breaking. Defendant also admitted that he and Morris had only recently been discharged from the Missouri penitentiary, and that they traveled to St. Louis on different trains.

The defendant offered no evidence, but stood on his demurrer thereto.

We find no objection to the information. It is in proper form and duly verified by the affidavit of the assistant circuit attorney.

The record of defendant’s former convictions of felonies and terms in the State penitentiary established the fact that he was an habitual criminal, and were properly admitted in evidence. [Sec. 2379, R. S. 1899; State v. Carr, 146 Mo. 1.]

The instructions covered every phase of the case, and are free from objection.

A point is made upon the failure of the record to show that defendant was arraigned before the selection of the jury to try the case, but this seems to be a misapprehension, as the record shows that on the 26th day of January, 1905, defendant was arraigned upon the information, waived its reading, and pleaded not guilty thereto.

The evidence showed defendant’s guilt beyond any and all question. Finding no reversible error in the record, the judgment is affirmed.

All concur.


text:
    THE STATE v. COLEMAN, Appellant.
    Division Two,
    November 20, 1906.
    1. INFORMATION: Amendment. An information may be amended. as to matter of form or substance at any time before trial, by leave of court.
    2. -: Motion to Quash: Not Part of Record. A motion to quash an information is not a part of the record proper, and must, therefore, be embodied in the bill of exceptions in order to be' reviewed.
    3. CONTINUANCE: Absent Witness: Impeaching Witness: Evidence at Former Trial. An application for a continuance on the ground of absent witnesses is properly overruled where the evidence of such witnesses could be used only for the purpose of impeachment, and their evidence at a former trial is preserved in the bill of exceptions, and could be read by the defendant.
    4. EVIDENCE: At a Former Trial: Witness Present. Where a witness is present in the court room, his evidence taken at a former trial and preserved by bill of exceptions is inadmissible.
    5. SPECIAL COUNSEL FOR STATE: Right to Make Closing Argument. Special counsel for the State may occupy any position in the trial assigned to him by the court and the prosecuting attorney, and he has the right to make the closing argument to the jury.
    Appeal from Chariton Circuit Court, — How. Jno. P. Butter, Judge.
    Affirmed,

      Johnson S Johnson and Ball $ Sparrow for appellant.
    (1) The court erred in refusing to quash the amended information for the reason that the original information only charged manslaughter and could not he so amended as to charge murder. (2) Court erred in permitting J. A. Collet, assistant hired counsel, to close the argument for the State over the objection and protest of the defendant. (3) To overrule defendant’s application for a continuance on the ground that the evidence of a witness in the former trial of the case which defendant desired to impeach had been preserved in the bill of exceptions and could be read by the defendant on the trial of the case then pending, and then refuse to allow .such testimony to be read when offered by defendant, was to trap the defendant into answering ready for trial, and place him at the mercy of a hostile witness called by the State.

      Herbert S. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for the State.
    (1) The ruling of the court on a motion to quash is a matter of exception, and unless made a part of the record by bill of exceptions, will not be reviewed by this court. State v. Finley, 193 Mo. 210'. (2) An information or affidavit may be amended in matter of form or substance at any time by leave of court before trial, and the filing of an amended information and affidavit in this case to cure the defect in the original was in effect authorized by the decision of this court on the former appeal. Sec. 2481, R. S. 1899; State v. Coleman, 186 Mo. 166; State v. Broeder, 90 Mo. App. 167; State v. Yinso, 171 Mo. 576; State v. Emerson, 188 Mo. 412. (3) The court did not err in overruling the defendant’s application for a continuance. The application was based upon the absence of two witnesses for the defendant, namely, Miss Quinn Shannon, the stenographer on the former trial of this case, and Wallace Fletcher. The evidence of the former, as stated in the application, could be material only for the purpose of impeaching Henry Gottschalk, Sr., a witness for the State on the first trial. Fletcher had testified on behalf of the defendant at the first trial, and the evidence of both Gottschalk and Fletcher on the former trial was preserved by bill of exceptions. Under the statute, such evidence could be used by the defendant “in the same manner and with like' effect as if such testimony had been preserved in a deposition in said cause.” The presence of the stenographer, therefore, was not necessary for the purpose of impeaching Gottschalk. Section 3149, R. S. 1899. This section authorizes the reading of evidence so preserved by bill of exceptions in the same manner and with like effect, etc., as in the case of a deposition. As witness Gottschalk, whose testimony on the former trial the defendant offered to read, was present in the court room at the time of such offer, his former testimony so preserved was not admissible. Sec. 2904, R. S. 1899'; Schmitz v. Railroad, 119 Mo-. 271. (4) The court did not err in permitting J. A. Collet, counsel assisting in the prosecution, to make the closing argument to the jury over the defendant’s objection. State v. Stark, 72 Mo. 37; State v. Robb, 90 Mo-. 30.
   FOX, J.

This cause is here upon appeal from a judgment of the circuit court of Chariton county convicting the defendant of murder of the second degree.This case was in this court on a former appeal, and is reported in 186 Mo. at page 151. On that appeal it was held by this court that the- information on which the defendant was tried and convicted was defective, in that in the concluding part thereof the prosecuting attorney omitted to use the words “upon his oath,” which were held essential in charging the crime of murder in the first degree. The case was then reversed and remanded for a new trial.

After the reversal and remanding of said cause to the circuit court of Chariton county, at the September term, 1905, of the circuit court of said county, the prosecuting attorney of said county filed an amended information, based upon an amended affidavit of Robert Cox, charging the defendant with the crime of murder in the first degree for the killing of Rufus Cox by shooting him with a revolver at the said county on the 8th day of August, 1903. At the same term of said court the prosecuting attorney entered a nolle prosequi as to the charge of murder in the first degree, and elected to prosecute the defendant on the charge of murder in the second degree. At the February term, 1906, of said court, the defendant filed a motion to quash the information, which motion being overruled by the court the defendant filed an application for a continuance which was also overruled. The defendant then waived formal arraignment, entered a plea of not guilty and was put upon his trial.

It is conceded by both respondent and the appellant that the facts upon the former appeal are sufficiently stated to enable the court upon this appeal to determine the legal propositions disclosed by the record; therefore, we deem it unnecessary to burden this opinion with a re-statement of the evidence, and shall content ourselves with referring to the case of State v. Coleman, 186 Mo. 151, where the controlling facts of this cause are fully recited.

At the close of the evidence the court gave 21 instructions, ten on behalf of the State and eleven on behalf of the defendant, and there were five other instructions requested by the defendant which were by the court refused. We have carefully read all of the instructions given and those refused in this cause and as the law applicable to this case was so fully discussed on the former appeal we see no necessity for burdening this opinion with a reproduction of the instructions given, or those refused.

Upon the submission of the cause to the jury they returned a verdict finding the defendant guilty of murder of the second degree and assessing his punishment at imprisonment in the penitentiary for a term of twelve years. Timely motions for new trial and in arrest of judgment were filed and by the court overruled. Sentence and judgment were rendered by the court in accordance with the verdict, and from this judgment the defendant prosecuted this appeal and the record is now before us for consideration.

. OPINION.

In the brief of appellant it is urged:

First. That the court erred in refusing to quash the amended information filed by the prosecuting attorney after said cause was remanded to the Chariton Circuit Court.

Second. That the court erred in denying the appellant’s application for a continuance.

Third. That the court erred in permitting counsel who had been employed in the case to assist the State’s representative to close the argument for the State over the objections and protests of the defendant.

The complaints as indicated above substantially embrace all the assignments of error contained in the brief of counsel for appellant. This cause having been before this court upon a former appeal, where the law and the facts were so fully discussed, doubtless furnishes a very good reason why learned counsel for appellant have limited their complaints of error to so few in number. We will treat the assignments of error accordingly as they are herein indicated.

I.

Upon the first proposition appellant complains that the court erred in overruling the defendant’s moiion to quash the first amended information. The record discloses that at the September term, 1905, the prosecuting attorney, in open court and by leave of court in the presence of the defendant and his counsel, filed the amended information upon which defendant was tried and convicted in the case at bar. On the same day that this information was filed the prosecuting attorney elected to prosecute for murder in the second degree. The defendant waived the service of a certified copy of the amended information; waived the time for entering his plea thereto, and also waived formal arraignment and entered a plea of not guilty. At the February term, 1906, the defendant withdrew his plea of not guilty and filed his motion to quash the amended information on the grounds: (1) because the original affidavit and information only charged the defendant with the crime of manslaughter, whereas the amended affidavit and information charged murder in the first degree, a different offense, etc.; (2) because the amended affidavit and information were prematurely filed; and (3) because the first affidavit and information so filed did not charge the defendant with any offense against the law.

It was ruled in State v. Emerson, 188 Mo. 412, that the prosecuting attorney had the right, both at common law and under section 2891, to amend his information in matter of form or substance at any time, by leave of court, before the trial, and in this same case, upon the former appeal, it was clearly recognized that upon the remanding of this cause to the circuit court of Chariton county the prosecuting attorney would have the right to amend his information. Burgess, J., speaking for this court, said in that ease that “the information is invalid, and being so, the question may be properly raised for the first time in this court, and while it cannot he amended in this court, it may be amended as to matter of form or substance at any time by leave of court before trial.” But aside from the ■undoubted right of the prosecuting attorney to file an amended information, the contention that the court erred in overruling the defendant’s motion to quash the amended information must be ruled adversely to ap.pellant, on the ground that the error complained of is not properly preserved by the record. Motions to quash informations or indictments form no part of the record proper, and therefore must be embodied in the bill of exceptions. [State v. Finley, 193 Mo. l. c. 210-211, and cases cited.]

It will be observed that the basis of this motion to quash is upon the ground that the original affidavit and information only charged the defendant with the crime of manslaughter, and therefore the prosecuting attorney had no right to file an amended information charging a higher grade of crime. The record in this cause nowhere' discloses a preservation by bill of exceptions of the original affidavit and information, and the only information which is disclosed by the record is the amended information upon which the defendant was tried. This amended information forms a part of the record proper and as there is nothing appearing upon the face of the information or in the record which in any way renders it invalid, it must be held sufficient. [State v. Finley, supra.]

H.

Upon the second proposition, as to the error complained of respecting the action of the court in overruling the application of the appellant for a continuance, it is sufficient to say that we have carefully read such application and all of the disclosures of the record in any w§iy appertaining to it, and in our opinion there was no error in the action of the court in denying such application for a continuance. The application was based upon the absence of two witnesses for the defendant, Miss Quinn Shannon, the stenographer on the former trial of this cause, and Wallace Fletcher. It is manifest upon the face of the application that the evidence of Miss Shannon could only he material for impeaching one Henry Gottschalk, Sr., a witness for the State on the first trial. Fletcher, the other absent witness, had testified on behalf of the defendant at the first trial and the evidence of both Gottschalk and Fletcher on the former trial was preserved by bill of exceptions. Under the provisions of section 3149', Revised Statutes 18991, the evidence so preserved in the bill of exceptions could be used by the defendant in the same manner and with like effect as if such testimony had been preserved in a deposition in said cause. The presence of the stenographer, therefore, was not necessary for the purpose of impeaching Gottschalk. But aside from all this, the record discloses that witness Fletcher, embraced in the application for continuance, did in fact appear and testify at this trial on behalf of the defendant, and it is further disclosed that Henry Gottschalk, Sr., the witness that appellant expected to impeach, did not testify as a witness for the State. It is therefore apparent that defendant was not prejudiced in any way by the ruling of the court upon such application.

Further complaint is made at the action of the court in refusing to permit counsel for defendant to read in evidence the testimony of Henry Gottschalk, Sr., taken at the former trial of the cause and preserved in the bill of exceptions. The law authorizing the reading of evidence preserved by bill of exceptions in a former trial is embraced in section 3149, Revised Statutes 1899. It authorizes the reading of evidence so preserved by bill of exceptions in the same manner and with like effect, etc., as in case of a deposition. The record discloses that witness Gottschalk, whose testimony on the former trial preserved in the bill of exceptions the defendant sought to introduce, was present in the court room at the time of such offer; therefore, it is clear that from these disclosures of the record, the witness being present in court, there was no error in denying the offer of counsel for appellant to read from the bill of exceptions. The testimony of the witness G-ottschalk in the bill of exceptions occupies the same position as though it was in a deposition, and where the deposition of a witness is taken, if it appears at the time the deposition is offered in evidence that the witness is personally present in court, the testimony as preserved by the deposition would be inadmissible. [Schmitz v. Railroad, 119 Mo. l. c. 271.]

III.

This brings us to the consideration of the only remaining complaint suggested in the brief of counsel for appellant, that is, that the court erred in permitting J. A. Collet, counsel assisting in the prosecution, to make the closing argument to the jury, over the defendant’s objections.

It was ruled by this court in case of State v. Stark, 72 Mo. 37, that if an assistant may be employed it follows that he may occupy any position in the trial of the cause assigned him by the prosecuting attorney. In that case the assistant counsel made both the opening and closing argument to the jury. In State v. Robb, 90 Mo. 30, it was held that it was not error for such counsel to make the opening argument to the jury, and we are unable to discover any sound reason for interpreting the provisions of section 2627, Revised Statutes 1899, as authorizing the assistant counsel to make the opening argument and prohibiting such counsel from making the closing* argument. The language used in that section is that the prosecuting attorney must state the ease, and that counsel for the prosecution shall conclude the' argument. We take it that under the law counsel may be employed to assist the representative of the State and that the entire proceeding during the progress of the trial is under the immediate supervision of the court, and that the prosecuting attorney, as well as the counsel who may assist, in contemplation of law, are representing the State in the prosecution, and while it may not harmonize entirely with the sense of propriety for the counsel who may have been employed to assist in the prosecution to take the leading part in the conduct and management of the trial, yet we are unwilling to say that counsel cannot be employed to assist in such trial, and that in the conduct and management of the trial, under the directions of the court and the prosecuting attorney, he may not occupy any position in the trial of the cause assigned to him. These rights of counsel who may have been employed to assist in the prosecution of cases have been fully recognized by this court, and this assignment of error must be ruled adversely to the appellant.

In the motion for new trial error is assigned upon the giving and refusing of instructions by the court. The record before us discloses that the law declared by the court in this prosecution was embraced in 21 or 22 separate and distinct instructions, and in our opinion every phase of this case to which the testimony was applicable was covered by the instructions given on the part of the court. It is manifest that some of the instructions given were in fact more favorable to the defendant than he was entitled to under a strict technical application of legal principles. The instructions refused by the court were properly refused. Some of them were fully covered by instructions given and others did not correctly state the law.

There is complaint at instruction No. 7 given on the part of the State. An instruction upon the subject embraced in instruction No. 7 was before this court in the former appeal of this cause. The misleading features of it were suggested by this court, and we have analyzed the instructions given upon the retrial and find that the suggestions as to the misleading features of the declarations of law upon that subject were heeded and the instruction made to conform to the suggestions of this court upon the former appeal.

There was ample evidence introduced on the part of the State, which, if believed by the jury, was clearly sufficient to support the verdict. The instructions of the court fully and fairly declared the law upon the facts developed. Two juries have presented their findings upon the evidence introduced, and after a most careful consideration of the entire record in this cause we are unable to discover any reversible error; hence, there is nothing remaining to be done except to announce our conclusion that the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


text:
    THE STATE v. EUBANKS, Appellant.
    Division Two,
    November 20, 1906.
    1. CARNAL KNOWLEDGE STATUTE CONSTITUTIONAL. The carnal knowledge statute (sec. 1838, R. S. 1899) is constitutional. (Following State v. Hamey, 168 Mo. 167.)
    2. FELONY: What Is: Punishment. Where the statute fixes the punishment of an offense at imprisonment in the penitentiary, imprisonment in the county jail, or a fine, the offense is a felony, no matter what punishment the court may impose after conviction.
    Appeal from Taney Circuit Court. — How.. John T. Moore, Judge.
    Affirmed. -

      Burkhead & Clarke for appellant.
    The information is based upon section 1838, Revised Statutes 1899', which appellant claims is out of line with the trend and spirit of the laws of Missouri, and unconstitutional. Secs. 22, 28 and. 30, art. 2, Constitution; Smart v. Kimball, 43 Mich. 448; State v. Hamey, 168. Mo. 218.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    Defendant’s assignment of error that the carnal • knowledge statute, section 1838, is unconstitutional has been decided adversely to his contention. State v. Harney, 168 Mo. 167.
   GANTT, J.

On the 17th of March, 1905-, the prosecuting attorney of Taney county filed an information with the clerk of the circuit court of that county, charging the defendant with carnally knowing one Callie Lewis, an unmarried female of previously chaste character, between the ages of fourteen and eighteen years. Accompanying said information there was filed an affidavit of Callie Lewis, which charged defendant with the same offense. At the October term, 1905, defendant was tried and convicted; whereupon, the court assessed his punishment at two years in the penitentiary. After his motion for a new trial and in arrest of judgment had been overruled, defendant was granted an appeal. The trial court made an order giving defendant leave to file his bill of exceptions within ninety days from October 27, 1905. Afterwards, the defendant filed an order extending the time thirty days for filing same, said order having been dated and signed by the trial judge on the 25th of January, 1906, which was within the time. Within the thirty days the bill of exceptions was signed by the trial judge and filed with the clerk.

The State’s evidence tended to prove that prosecutrix lived with her mother in Taney county, near Walnut Shade. On January 29, 1904, the father of prosecutrix died, and defendant, who had begun to keep company with her a little while before, kept up his visits regularly thereafter. About the first of March, 1904, defendant and prosecutrix had sexual intercourse, which was continued at intervals till in June, when .it was discovered that she was pregnant. In July prosecutrix went to Kansas City to visit a sister of defendant. From Kansas City she went out in to Kansas to visit her relatives, and did not return to Taney county till the following February. Defendant followed prosecutrix to Kansas City, remaining there for some time after she had left the city. While in Kansas City defendant wrote the following letter to prosecutrix, which was identified and read in evidence:

“Kansas City, Mo., Aug. 19', 1904.
“Miss Callie Lewis:
“My Dear Sweetheart — I now take the pleasure of answering your most kind and highly appreciated letter that I received yesterday evening. Was truely glad to hear from you once more. Well, Callie, I have been very sick since you left; you left Saturday night and I took sick Sunday night, and have been sick ever since, but feel better now. I had three doctors with me. The folks all got scared and thought I was going to die the the other night.
“Well, Callie, you spoke about me writing to Stella Moore; the other evening when I was sick Clara began to laugh and told me that that letter that I rote Stella Moore was still laying in the shelf, so I told her it could just lay there and rot, and she said that was right, and I think so to.
“Well, Callie, was sorry to hear that your medicine hadn’t did you any good yet,, but don’t get discoredged, for I no it will if you just take it good, and, of course, you will.
“Tell Jane and Ed hello and kiss Ross for me and don’t forget to kiss Callie for me.
“Have you told the folks about it yet, and how did they take it? Have you saw Fannie and Allen yet and are they married; if they are married how many babies havé they? Clara said tell you to rite to her and tell her how you are getting along. Well, as news is scarce I will ring off, so good by as ever yours.
“Sincerely,
“Quinnie> Eubanks.
“Direct your letter to the house, for I don’t know whether I will work any more on the carr or not as the Doc’t told me that was what made me sick.” relations were had in Taney county the fall before the confinement of prosecutrix. Defendant testified that he was nineteen at the times above mentioned.

At the time of having these improper relations, prosecutrix was fifteen years old, and defendant was nineteen. The mother of prosecutrix testified to her age, and also to the fact that no other young men or boys had kept company with prosecutrix. She also testified that, just prior to the time of filing the complaint in this case, the defendant and a friend of his tried to settle the case for forty dollars. The mother further testified that on March 12, 1905, prosecutrix gave birth to a child, which was born dead, and that it was a nine months child. Judge Craig, A. L. Weatherman and Mrs. George Patterson all testified that they were neighbors, and had been acquainted with prosecutrix most of her life; and that her general reputation for chastity was good prior to this trouble. And prosecutrix testified positively that no one, except defendant, had ever had intercourse with her.

The defendant admitted associating with prosecutrix, and also admitted his intimacy with her at the times and places as testified to by her. He further testified that he had heard from “all the boys” that she was not a virtuous girl, and heard that before he began going with her. He introduced some evidence which tended to sustain him in part, but one of his witnesses, C. C. Blancit, testified that her general reputation was good, and that he had never heard a word against her. Defendant’s witness, Milton Chandler, at first denied having had intercourse with prosecutrix, but afterwards admitted that he “believed he had.” Being rather urgently requested, he stated that their

In rebuttal, it was shown by prosecutrix and her mother that prosecutrix left Taney county in July, and did not return till February, and that her child was born on March 12. Prosecutrix denied having had intercourse with Milton Chandler, and testified, as above stated, that she was not in Taney county at said time.

At the close of all the evidence the court gave the usual and oft-approved instructions on reasonable doubt, the. right of the defendant to testify in his own behalf, and the credibility of the witnesses, and on the essentials of the crime instructed the jury that it devolved upon the State to prove by the evidence beyond a reasonable doubt that Callie Lewis was a girl of previous chaste character up until the time of the alleged crime; that they must find that Callie Lewis was between the age of fourteen years and eighteen years and that defendant was over the age of sixteen years, and then gave the following instruction:

“2. The court instructs the jury that if you find from the evidence that Quinnie Eubanks, in the county of Taney and State of Missouri, on or about the 5th day of June, 1904, or at any time within three years before the filing of the information, to-wit, March '17, 1905, did unlawfully and feloniously have carnal intercourse with Callie Lewis, and you further find that Callie Lewis was between the years of fourteen years and eighteen years, and you further find that the said Callie Lewis was of previous chaste character, and you further find that the defendant, Quinnie Eu-banks, was over the age of 16 years at the time of the commission of the offense, you will find the defendant guilty and so say by your verdict. ’ ’

Two grounds only are urged for a reversal of this judgment.

First, that section 1838, Revised Statutes 1899, is •unconstitutional in that it denies a trial "by jury in which the jury are allowed to assess the punishment of the defendant.

I. Defendant suggests no ground or reason for holding this section unconstitutional that was not presented in the able and exhaustive discussion of Judge Sherwood in his dissenting opinion in State v. Harney, 168 Mo. 167. The Court in Banc in that case held the section constitutional and we see no reason for changing our views as to its validity.

II. The suggestion is made that owing to the fact that the punishment may be either by imprisonment in the penitentiary or in the county jail or by a fine, it is a felony if the punishment is assessed at imprisonment in the penitentiary but a misdemeanor only if 'the defendant’s punishment is fixed at imprisonment in the county jail or by a fine. The statute is its own answer to this contention. It is a felony whatever punishment the court imposes after conviction. "We hold that the court committed no error in holding the statute constitutional and the exceptions of the defendant are without merit.

The judgment is affirmed.

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