author: WALKER, J.

text:
    THE STATE v. JOSEPH RITTER, Appellant.
    Division Two,
    June 8, 1921.
    1. INDICTMENT: Arson: Name of Owner of Building. An indictment charging that defendant had burned household goods for the purpose of defrauding the insurers need not name the owner of the building in which the goods were located, but if the charge is in the language of the statute it is sufficient.
    2. WITNESS: Expectation of Immunity: Cross-Examination. An inquiry on cross-examination of a co-conspirator to the crime as to whether, in making her statement to the prosecuting attorney, she entertained the hope and expectation that she would not be prosecuted, being confined to her hopes and expectations from having made the statement, and in no wise made dependent upon her testimony, is not a proper basis for an answer, and it is not reversible error to exclude a negative answer thereto.
    3. ADMISSION: Kindred Crimes: Incendiary Fires. Statements by defendant, charged with burning goods with intent to defraud the insurers, made to his co-conspirator, concerning his connection with other incendiary fires, in their nature voluntary admissions, whether the fires occurred before or after the one for which he is being tried, are admissible (1) as tending to show-intent and that the fire in question was of incendiary origin, and (2) to prove the corpus delicti, or to connect defendant therewith.
    4. HOSTILITY TO CO-INDICTEE. A witness’s hostility against a co-indictee w-ho has been granted a severance is immaterial.-
    5. REBUTTAL: Of Improper Cross-Examination. Where counsel for defendant, in the cross-examination of certain witnesses for the State, has attempted to show that the State’s main witness has kept a house of ill-repute, or one bearing that reputation in the neighborhood, testimony to rebut the attack upon her character is admissible, although it be conceded that it was error to permit the inquiry in the manner it was made.
    6. REPUTATION: Unassailed. Where the character of a co-indictee, who has been granted a severance and is a witness for defendant, has not been directly questioned, but upon cross-examination inquiries are made of him reflecting upon his standing, it is not error to refuse to permit defendant to show that said witness was a man of good reputation for truth and veracity. [Overruling Mo. App. Cases to the contrary.]
    Appeal from the St. Louis City Circuit Court. — Eon. John W. Calhoun, Judge.
    Affirmed.

      Carl ill. Bubinshy and Abbott, Fauntleroy, Cullen, ,<& Edwards for appellant.
    (1) The court erred in excluding evidence as to the beliefs, hopes and expectations of the accomplice. State v. Kent, 27 L. R. A. 695; Stevens v. People, 215 111. 593. (2) In the progress of the trial, over the objections of the defendant, the1 State was permitted to prove that other fires had occurred in St. Louis, and permitted to prove that the defendant .had made some statements to the witness, Bertha Trader, about such other fires, but there was no proof in the case that the other fires mentioned were of incendiary origin or of a similar nature to the fire which was the subject-matter of this prosecution and the defendant therefore insists that the admission of such testimony was improper and constituted reversible error. Raymond v. Commonwealth, 96 S. W. 516; People v. Santageta, 114. N. Y. Supp. 324. (3) "When'the co-defendant Fendelman was on the stand as a witness, the defendant offered to prove that the witness Murphy, who had testified as a witness for the State in conjunction with Newmark, the private detective employed by the insurance companies, made a violent and wicked attack upon the witness because he refused to implicate the defendant in the crime wherewith the defendant stands charged. Bomont v. State, 25 Tex. App. 173. (4) Particular independent facts, though hearing on the question of veracity, cannot he put in evidence for the purpose of sustaining or impeaching a witness. State v. Rogers, 108 Mo. 202; State v. Gesell 124 Mo. 531; Com. v. Churchill, 11 Met. 538, 45 Am. Dec. 229; Com. v. Kennon, 130 Mass. 39; Johnson v. People, 3 Hill, 178, 38 Am. Dec. 624; Crichton v. People, 6- Park. Crim. 363; Uhl v. Com., 6 Gratt. 706; Moore v. State, 68 Ala. 360; Craig v. State, 5 Ohio St. 605; Ketchingman v. State, 6 Wis. 426; Stape v. People, 85 N. Y, 390; Wehb v. State, 29 Ohio St. 351; People v. O’Brien, 96 Cal. 171; People v. Ryan, 8 N. Y. Supp. 241; Stale v. Barret, 40 Minn. 65; People v. Wolcott, 51 Mich. 612; Randall v. State, 132 Ind. 542; McArthur v. State, 59 Ark. 431; People v. Monreal, 7 Cal. App. 37; Seaborn v. Com. 25 Ky. L. Rep. 2203; State v Arnold, 146 N. C. 602; Conrad v. State, 132 Ind. 259. (5) The defendant and one Fendelman were indicted jointly. A severance was taken. The entire theory of the case was that Fendelman and Ritter were in a conspiracy and that Fendelman was the active party who set fire to the- building. On cross-examination questions were asked him reflecting upon his standing, and later on the defendant offered to show that the said Fendelman was a man of good reputation and the court excluded such testimony. In so ruling the court erred. Whenever the character of a witness for truth is attacked in any way, it is competent for the party calling him to give general evidence to support his good character. Walker v. Phoenix Ins. Co., 62 Mo. App. 209; Cox v. Polk, 139 Mo. App. 260; Berry-man v. Cox, 73 Mo. App. 73. The whole line of cases holds that whenever a witness, plaintiff or defendant or anybody else, is attacked as a witness in any.manner, he may offer evidence of good character to sustain his testimony. Under these circumstances testimony of the character is admissible. State v. Christopher, 134 Mo. App. 6; Miller v. St. Louis R. Co., 5 Mo. App. 471; Aliare Grocer Co. v. Tag-art, 78 Mo. App. 166; Browning v. Ry., 118 Mo. App. 449. And the same rule applies where the witness is a party to the suit, since the impeaching evidence goes to his credibility as a witness and not as a party. Cox v. Polk, 139 Mo. App. 260; State v. Speritus, 191 Mo. 24.

      Jesse W. Barrett, Attorney-General, and Albert Miller, Assistant Attorney-General, for respondent.
    (1) The second count in the indictment is sufficient and properly charges the offense of arson in the third degree. Sec. 3288, R. S. 1919 (Sec. 4511, R. S. 1909); State v. Tucker, 84 Mo. 24; State v. Bersch, 276 Mo. 411. (2) The pivotal question on trial was as to the intent and consideration of the witness (accomplice), Bertha Trader, in making her statement to the circuit attorney and the police officers; and in making herself a witness for the State. Her testimony went far towards making-out a case of arson against defendant on trial. In the cross-examination of this witness great latitude should have been allowed in ascertaining whether her testimony against the appellant was not given with the belief, hope and expectation of escaping punishment; or, of being-more leniently dealt with. The appellant had the right to have such facts laid before the jury on the question of the accomplice’s credibility-. The court ruled out the following- questions, and in so ruling- we think the court committed reversible error. State v. Riney, 137 Mo. 104; State v. Shelton, 223 Mo. 135; State v. Kent, 4 N. D. 598; Allen v. State, 10 Ohio St. 305; Tullies v. State, 39 Ohio St. 200; People v. State, 215 111. 593; People v. Langtree, 64 Cal. 259; People v. Moore N. Y. App. Div. 56, 181 N. Y. 524. (3) To prove that other fires were caused by the same parties is competent to show intent. State v. Bersch, 276 Mo. 415; State v. Young, 266 Mo. 734; State v. Oox, 264 Mo. 413; State v. Donaldson, 243 Mo. 475; State v. Meyers, 82 Mo. 563. Competent also to show incendiary origin of the crime. State v. Cox, 264 Mo. 413; State v. Spray, 174 Mo. 569; State v. Jones, 171 Mo. 407; State v. Balch, 136 Mo. 109; State v. Meyers, 82 Mo. 564. (4) The court did not commit error in excluding testimony tending to show Mas of State’s witnesses, (a) Fendleman was not a party to this action. State v. Montgomery, 28 Mo. '595. (b) In showing hostility a party is not entitled to inquire into the cause or particulars of the difficulty. BertolLv. Smith, 69 Vt. 427; ‘Wyeth v. Walzl, 43 Md. 432. (c) It is immaterial whether the feeling is or is not justifiable. Seymour v. Bruscke, 144 Mich. 252; Coats v. Lynch, 152 Mo. 167. (d) Wlrere the effect, if not the intention, of evidence offered to show bias is to divert the attention of the jury by a collateral and subordinate issue, the admission of the evidence is largely in the discretion of the trial court. Com. v. Ezell, 212 Pa. St. 296; State v. May, 172 Mo. 646. (e) Where the interest or bias of a witness clearly appears, the court may properly refuse to allow the inquiry to go any further. State v. May, 172 Mo. 646; State v. McLaughlin, 149 Mo. 32. (5) By admitting testimony of specific acts to sustain reputation of witness, Bertha Trader, the court did not commit error. Self-invited error cannot be made the basis of complaint. Rourke v. Railroad, 221 Mo. 62; Wiggington v. Rule, 275 Mo. 449; Pinson v. Jones, 221 S. W. 86. (6) Exclusion of testimony to show good reputation of witness Fendelman was not error, (a) Evidence cannot be admitted to support reputation unless attacked. State v. Reed, 250 Mo. 379; State v. Fogg, 206 Mo. 716; State v. Grant, 79 Mo. 133; State v. Thomas, 78 Mo. 343. (b) Reputation presumed to be good without proof. State v. Reed, 250 Mo. 379.
   WALKER, J.

The appellant was convicted in the Circuit Court of the City .of St. Louis, of arson, in the third degree, under Section 3288, Revised Statutes 1919, and Ms punishment assessed at fifteen years’ imprisonment in the penitentiary; which was reduced by the trial court to five years. From this judgment he appeals.

The offense for which the appellant was convicted was the burning of certain household goods in the possession of one Bertha Trader, located in an apartment occupied by- her on Delmar Avenue, in the City of St. Louis, with the intent to injure and defraud the insurers of said property. Bertha Trader testified for the State. Her testimony was to the effect that she, the appellant, and one Fepdelman entered into a conspiracy to burn the goods in the apartment in which she' resided for the purpose of securing the insurance on same; that the appellant brought the greater part of the goods and placed them in the building for the purpose; that he introduced Féndelman to her as the man who would start the fire and stated that Ms name was Jones. The appellant testifying in his own behalf denied any connection with the matter, except as an insurance adjuster. The property was insured in the sum of eight hundred dollars in one company and one thousand dollars in another. Upon an adjustment of the loss the two insurance companies paid the sum of eight hundred dollars; of this amount Bertha Trader received two hundred and fifty dollars, and the balance was retained by the appellant. The latter was at the time a member of the firm of Bersch, McMahan & Ritter, whose ostensible business was that of a fire insurance adjuster, engaged in business under the name of the Independent Adjustment Company, and as such it represented Bertha Trader in the settlement of her claims against the insurance companies. The burning of the goods as testified by Bertha Trader was effected by the starting of a fire in a wardrobe in one of the rooms of the apartment. Fendelman, who, under the conspiracy, was to start the fire was seen in the immediate vicinity of the building at the time.

There is much testimony as to the particulars of the fire, the adjustment of the claim by Ritter for Mrs. .Trader, and his retention of the money when the losses were paid, not necessary to be set forth in detail.

Fendelman was indicted jointly with the appellant. A severance was granted, resulting in the conviction as heretofore stated.

I. Appellant contends that the indictment is insufficient, in that it does not allege the name of the owner of the building in which the goods burned were located. This allegation was not necessary. The sec- .. , ° , , » . tion under which the indictment was framed is several. The offense denounced therein with which the appellant was charged was the burning of goods with the intent to defraud the insurers.

This offense is charged in the language of the statute and hence there is no merit in the contention, for the reason that the crime having been defined by the statute which embodied all the constituent elements of the offense, the indictment following same is sufficient. This measure of the sufficiency of a statutory charge was last approved by this court in State v. Bersch, 276 Mo. l. c. 411, 207 S. W. l. c. 813. Stated more concretely as applicable to the law and facts at bar, the offense consisted, as stated, in the burning of the goods to defraud the insurers. [State v. Greer, 243 Mo. 599.] The location of such goods other than that they were in the City of St. Louis, where the charge was preferred, which fact is alleged in the indictment, was immaterial.

II. It is contended that error was committed in the striking out of the answer of the witness Bertha Trader to an inquiry made of her by the counsel for the appellant on cross-examination, as follows:

“In making the statement to Mr. McDaniel, did you not, by reason of making said statement, entertain the hope and expectation that you would not prosecuted?” To this she answered, “No, sir,” which answer on the motion of counsel for the State was stricken out. What this statement was concerning which the inquiry was made, does not appear. Although this inquiry was repeated, followed by a like ruling as- at first, it was confined in each instance to the witness’s hopes and expectations, dependent upon her having made the statement alleged tó have been made to McDaniel, and not to her testimony at the trial to which no reference was made. If the inquiry had been directed to ascertaining her hopes and expectations, dependent upon her testimony, the exclusion of her answer, if in the affirmative, would have been error, and if found upon a consideration of all the other facts to have been prejudicial, it would have been sufficient to have worked a reversal. Numerous rulings are to be found declaratory of the latitude permissible in the cross-examination of witnesses shown to have been connected with the crime for which the accused was being tried. Proofs of promises, inducements and the hopes and beliefs of the witness may be adduced to affect his credibility, but a vague inquiry as to an alleged statement of the witness, of which not even the purport is shown, cannot be made to serve that purpose.

The facts at bar, therefore, clearly distinguish this case from rulings here and elsewhere, recognizing the right of cross-examination to ascertain if a witness’s testimony is animated by any other purpose than a statement of the facts. [State v. Shelton, 223 Mo. l. c. 134 and cases; Stevens v. People, 215 Ill. 593; People v. Langtree, 64 Cal. l. c. 259; People v. Moore, 181 N. Y. 524; State v. Kent, 4 N. D. l. c. 598; Lee v. State, 21 Ohio St. 151.]

III. Error is assigned in the admission in evidence of statements made by appellant to Bertha Trader as to his connection with other incendiary fires. These statements were in the- nature of voluntary admissions the commission by the appellant of other crimes of a like nature to that charged. They were admissible as tending to show intent, and it is immaterial •whether they occurred before or after the commission of the crime for which he was being tried. [State v. Bersch, 276 Mo. l. c. 415 and cases.]

Furthermore, the admission of this testimony was authorized as tending to show that the fire in question was of incendiary origin, and also to prove the corpus delicti, or connect the appellant with same. [State v. Cox, 264 Mo. l. c. 413 and cases.]

IV. It was attempted to be shown that one of the State’s witnesses was biased or hostile to Fendelman and hence that the exclusion of his testimony as to such bias was 9rror- 3"s always competent, as affecting the credibility of a witness, to ascertain the state of his mind against the accused. [State v. Horton, 247 Mo. l. c. 665; State v. Miller, 71 Mo. 590.] This rule, however, has never been extended to the admission of proof of witness’s bias against others. [State v. Montgomery, 28 Mo. 594.] Fendelman, although he had been jointly indicted with the appellant, had been granted a severance and was not a party to the action. It was, therefore, immaterial what the witness’s feelings may have been towards him.

V. It is further contended that error was committed in admitting testimony as to the prior conduct.of Mrs. Trader to rebut the attack upon her character made by the appellant. Appellant’s counsel had attempted m the cross.-exammation of certain witnesses for the State to show that Mrs. Trader had kept a house of ill-repute, or one bearing that reputation in the neighborhood. The evident purpose of this examination was to show that she was a woman of unchaste character and thereby affect her credibility. In rebuttal the State was permitted to show that her house did not bear that reputation. The testimony, therefore, did not, as contended by appellant, constitute proof of specific acts to sustain the witnesses character. Where an inquiry is made, as at bar, the State may be permitted to rebut the testimony thus offered by proof of the actual facts. Although the trial court may, therefore, have erred in permitting counsel for the appellant to make the inquiry in the manner in which it was made (People v. Christy, 65 Hun, l. c. 353; White v. Comm., 96 Ky. l. c. 184; Griffin v. State, 14 Ohio St. l. c. 63), this did not preclude the State from disproving same; ruled otherwise, the appellant would he enabled to profit by his own error.

The propriety of the trial court’s ruling in this behalf may be tersely stated in the language of a well recognized treatise on evidence (1 Greenleaf, Evidence, section 468) cited with approval in Olive v. State, 11 Neb. l. c. 27, as follows: “If the counsel chooses to cross-examine the witness as to facts not admissible in evidence, the other party has a right to examine him as to the evidence so given.”. [22 C. J. pp. 483, 484, sec. 582 and cases.]

VI. Error is assigned in the refusal of the trial court to admit testimony to show the good character of Fendelman, who testified for the defense. His character had not been directly questioned, but on cross-examination inquiries were made of him reflecting upon his standing; and later the appellant offered to show that Fendelman was a man of good reputation for truth and veracity. The rule as to the admission of testimony of this character in both civil and criminal cases has been very exhaustively considered by Graves, J., in Banc, in Orris v. Railroad, 214 S. W. 124, in which it is held, at page 130:

“Neither proof of mere contradictory statements nor a rigid cross-examination of the party will authorize the introduction of evidence, as to his general reputation for truth and veracity. Such things go to the credit to be given a witness’s testimony, rather than to his. reputation, for truth and veracity.”

The opinions of the courts of appeals, holding to contrary, which are cited by appellant in his brief, are expressly overruled. The ruling in the Orris case, so far as it applies to criminal cases, is but an affirmance of the doctrine announced in the early case of State v. Thomas, 78 Mo. 327, which, was subsequently given express approval in State v. Fogg, 206 Mo. l. c. 716, in which the court said:

“It is urged by counsel for appellant that the court committed error in exclusion of the testimony offered to prove the defendant’s reputation, in the neighborhood in which he resided, for truth and veracity. This testimony was properly excluded for the reason that the defendant’s reputation for truth and veracity had not been assailed, and the mere fact that there was a conflict beween his testimony and that of the prosecuting witness is not in contemplation of law such an attack upon his reputation for truth, and veracity as would warrant the court in admitting the testimony as to such reputation, for the purpose of bolstering up the testimony of the defendant, when such reputation had been in no way assailed. As applicable to this proposition we know of no rule of law which makes any distinction between the defendant as a witness and any other witness in the case; therefore, we take it that the rule as announced in State v. Thomas, 78 Mo. 327, is decisive of this question.”

"We, therefore, overrule this contention.

VII. We have carefully reviewed the instructions, not only those given, but those refused; while the former are numerous and somewhat prolix in verbiage, they correctly present the applicable law under the evidence and are not subject to such criticism as to warrant a reversal.

The instructions refused, where not covered by those given, are subject to such objections as to prevent our interfering with the ruling of the trial court in regard thereto; they are either not authorized by the facts, or are -a comment on same, or incorrectly declare the law. We do not deem it necessary, therefore, to review them separhtely.

The testimony as to the appellant’s guilt is ample to sustain the verdict. He was fairly tried and the judgment is, therefore, affirmed.

All concur:


source: Caselaw Access Project

author: WHITE, C. PER CURIAM:

license: Public Domain

text:
    THE STATE v. JOHN CARROLL and CHARLES W. JOCOY, alias JOSEPH COYLER, Appellants.
    Division Two,
    June 23, 1921.
    1. INFOKMATION: Affidavit: Omission of Statement of Official Character. Where the information states that it is upon the official oath of the prosecuting attorney and is signed by him and the affidavit by which it is verified is signed by him, the omission of a statement of his official character in connection with his signature to the oath is immaterial, not prejudicial to defendant and constitutes no ground to quash.
    2. -: Murder: Aiding and Abetting. The information charged that one of the defendants “feloniously, deliberately, premeditatedly and with malice aforethought did make an assault with a dangerous and deadly weapon, to-wit, an automatic pistol,” etc., and that the other two defendants, “before the said felony and murder was committed in the manner and form aforesaid and by the means aforesaid, at the time and place aforesaid, did then and there unlawfully, feloniously, deliberately, premeditatedly and of their malice aforethought, incite, move, procure, abet, aid, counsel, hire and command him,” etc., “to do and commit the said felony and murder aforesaid,” etc., and then proceeded to charge that the three defendants, in the manner and form aforesaid, did murder deceased. Held, that the allegation that the two defendants were present aiding and abetting properly charged that they committed the murder.

      3. EVIDENCE: Other Crimes. Evidence of crimes committed by a defendant other than that for which he is on' trial is proper for the purpose of showing a common scheme or plan embracing the commission of two or more crimes so related to each other that the proof of one tends to establish proof of the other. .
    4. --:--■: Untimely Objection. Where defendants had full knowledge that their written statements were in existence, to the effect that the three had entered into a common plan to rob and had been for three days before they killed deceased while robbing him engaged in various attempts to rob others, but waited until the statements were read to the jury before objecting, their objection came too late, even though the evidence were not competent.

      5 CONSPIRACY: Not Charged: Evidence and Instruction. Where defendants are charged with the commission of a crime, ,a conspiracy to commit crime may be shown, although the existence of the conspiracy is not charged. A charge that three defendants murdered deceased, one actually shooting him and the other two as present aiding and abetting the murder, is a charge of a conspiracy as an incident, and evidence to prove the conspiracy and an instruction directing the jury’s attention to it, were proper.
    6. MURDER: Instruction for Second Degree. Where there is no evidence tending to show that the homicide was murder in the second degree, but it indicates that the crime was murder in the first degree or nothing, it is not error to refuse an instruction on murder in the second degree.
    7. VERDICT: Omitting Words “As Charged in the Information.’’ Where the information charged'the defendants with murder in the first degree, a verdict finding them “guilty of murder in the first degree,” but omitting the words “as charged in the information,” even if conceded to be irregular, was in no sense prejudicial to defendants.
    8. -: Three Defendants: Joint Verdict of Guilty: Correction. Under the statute (Sec. 4046, R. S. 1919) when several defend ants are jointly tried, the punishment of each, if all are convicted, must be separately assessed. And a verdict that “we, the jury, find all of the defendants and each of them guilty of murder in the first degree and assess the punishment of John Oarroll and Charles W. Jocoy at death, and assess the punishment of Walter F. Shirer at imprisonment in the penitentiary for. life” does not comply with the statute. But another statute (Sec. 4048, R. S. 1919) provides that where the jury assesses a punishment not authorized by law “the court shall assess and declare the punishment,” and thereunder the court is empowered to correct said erroneous verdict by assessing separate punishment against the defendants in pronouncing sentence; and there being no other error in the case, the cause is remanded to the trial court with directions to bring the defendants before it and separately assess and declare the punishment oí each.
    Appeal from Franklin Circuit Court . — Hon. R. A. Brener, Judge.
    Reversed and remanded (with directions).

      T. W. Breid, Jesse M. Owen and Jesse H. 8chape? for appellants. . , ... ¡ .• '
    (1) The trial court erred in overruling the motion of defendants Carroll and Jocoy to strike out all that part of the written statements made by them to the prosecuting attorney and his assistants and read in evidence by the State relating to the acts of said defendants in holding up the taxi in the City of St. Louis, and in holding up the Ford automobile in St. Louis County, and in robbing a man in Washington of six dollars in money and in appropriating the money to themselves, for the reasons: (a) The statements of the acts of defendants so sought to be stricken out were crimes separate and independent of the crime chargedagainstdefendants in the information in this case. (b) There was no such connection between the crimes mentioned in said statements and the one charged in the information that, in proving the one, the evidence necessarily tended to prove the other, (c) There was only one crime charged in the information and the state had no legal right, proceeding by ambush, to attempt to prove other independent crimes of a different nature against defendants, (d) There' was no intimation given by the State to counsel for defendants at or before the admission in evidence of the statements so made by defendants, that parts of said statements relating to other crimes were contained in said statements and were going to be read in evidence by the State. Therefore there was no opportunity afforded to counsel for defendants to make a timely objection against the admissibility of the parts of the statements relating to other crimes, and the motion to strike out did not come too late, for there was nó waiver of the right to move to exclude. State v. Foley, 144 Mo. 600. (e) Counsel for defendants in making their, motion to strike out the statements relating to other crimes, not only pointed out the parts of said statements sought to he stricken out, but also stated the specific grounds or defects on which the same was based, and also at the time stated that they had no knowledge or information that the statements so read in evidence contained statements of other crimes committed by defendants and that therefore they did not make an objection to the evidence before it was read to the jury, (f) The trial court passed the motion of defendants to strike out and stated in the presence and hearing of the jury that it would cure the admission of said evidence by an instruction to the jury, but later overruled said motion to strike out, and at the close of all the evidence refused an. instruction offered by defendants to direct the jury to disregard all said evidence relating to other crimes, (g) In thus overruling the motion of defendants to strike out the parts of the statements made by defendants and read in evidence by the State, the court deprived the defendants of a fundamental right guaranteed to them under Section 12 of Article 2 of the Constitution of’ Missouri, which provides that “no person shall be prosecuted criminally for felony or misdemeanor otherwise than by indictment or information, which shall be concurrent remedies,” and also under Section 22 of the same article which provides that “in criminal prosecutions the accused shall have the right ... to demand the nature and cause of accusation.” State v. Harris, 222 S. W. 420. (h) The general rule is that evidence of the commission of offenses other than the one charged is inadmissible. State v. Spray, 174 Mo. 376; People v. Molineaux, 61 N. E. 293. (2) The trial court erred in refusing to give legal and proper instructions asked by appellants. (a) Instruction One, if given, would have properly submitted to the jury the question whether the defendants or either of them was guilty of murder in the first or second degree. R. S. 1919, sec. 3232. (b) Instruction Two, if given, would properly have submitted to the jury the question whether or not defendants, or either of them, was guilty of murder in the second degree. There was evidence on which to base the instruction and it should have been given, (c) Instruction Three was a proper direction to the jury to disregard all that part of the statements purporting to have been made by defendants and read in evidence by the State, which in any manner alluded to the commission or attempted commission of other offenses than that charged in the information. (3) The trial court erred in giving illegal and improper instructions asked by the State. Instruction One is broader than the allegations in the information, in that it submitted to the jury the question as to whether or not defendants entered into a conspiracy to take the life of Benjamin Schowe or to do him great bodily harm, when there was no allegation in the information to that effect. Our Bill of Bights forbids such a result. Mo. Constitution, secs. 12 and 22, art. 2; State v. Kyle, 177 Mo. 664; State v. Harris, 222 S. W. 420. (4) There was no substantial evidence introduced at the trial to support the verdict of the jury, and therefore, it should be set aside on appeal. The information in this case did not charge that the offense was committed by defendants pursuant to a conspiracy or agreement between them to kill Benjamin Schowe, or to do him great bodily harm. It was incumbent on the state to allege and prove by substantial evidence that there existed a conspiracy between the defendants at and before the commission of the alleged offense. The defendants had the right under the Constitution to demand the nature and the cause of the accusation, but this right was not accorded to defendants at the trial of this case. Mo. Constitution, art. 2, secs. 12 and 22; State v. Harris, 222 S. W. 420. (5) The trial court erred in overruling appellants’ motion to quash the information. '(a) The information did not charge any offense against the defendants Carroll and Jocoy known to the laws of Missouri, (b) The information did not charge that the offense was committed by defendants Carroll and Jocoy, pursuant to a conspiracy existing between them, to take the life of Schowe, or to do him great bodily harm, (c) The information does not purport to be verified by the affidavit of the prosecuting attorney of .Franldin County, (d) The information is vague, indefinite and uncertain by reason of the allegations aforesaid. (6) The trial court erred in overruling defendant’s motion in arrest of judgment. The jury, in one verdict, found all of the defendants guilty of murder in the first degree and assessed the punishment of defendants Carroll and Jocoy at death, and the punishment of defendant Shirer at imprisonment in the penitentiary for life, but the jury, by their verdict, failed to find defendants guilty as charged in the information, and failed to assess the punishment of defendants Carroll and Jocoy separately, and the trial court also failed to assess and declare the punishment of Carroll and Jocoy separately or otherwise. Therefore, upon the record, the judgment is erroneous, and should be set aside on this appeal. E. S. 1919, sec. 4046; State v. Thornhill, 174 Mo. 364; State v. Gordon, 153 Mo. 576.

      Jesse W. Barrett, Attorney-General, Albert Miller, Assistant-Attorney-General, for respondent; James Booth, W. L. Cole, and B. W. Otto of counsel.
    (1) The court did not commit error in overruling appellants’ motion to quash, (a) The information is sufficient in form and substance, and properly charges apappellants with the crime of murder in the first degree. State v. Bradford, 156 Mo. 95. (b) The information is verified by the oath of the prosecuting attorney. Sec. 3849, E. S. 1919; State v. Bonner, 178 Mo. 431; State v. Schnettler, 181 Mo. 184; State v. Brown, 181 Mo. 224; State v. Brock, 186 Mo. 459; State v. Anderson, 252 Mo. 94; State v. Stewart, 274 Mo. 655. Where, in the verification of an information, the words, “ prosecuting attorney” are omitted after the name of-that officer appearing in the oath, that error is immaterial and constitutes no ground to quash. State v. Ferguson, 278 Mo. 130; State v. Kinney, 81 Mo. 102. Wher.e, in tlie body of tlie information appear: “Robert W. Otto, Prosecuting Attorney within and for he County of Franklin ánd State of Missouri, upon his official oath as. such prosecuting attorney and upon his hereunto appended oath, informs the court,” the failure to insert the words “prosecuting attorney ’ ’ after the name £ £ Robert W. Otto ’ ’ in the oath appended to said information does not invalidate the verification. State v. Salts, 263 Mo. 313. The omission to put the words “prosecuting attorney” after the name “Robert W. Otto,” in the oath appended to the information filed herein, did not mislead appellants or prejudice their rights upon the merits of the case. State v. Brock, 186 Mo. 459, State v. Kinney, 81 Mo. 102; State v. Ferguson, 278 Mo. 130. (2) The court did not commit error in overruling appellants’ motion to .strike out all that part of the written statements made by them and read in evidence by the State relating to other offenses committed by appellants, (a) If the evidence offered directly tends to prove the particular crime charged, it is to be received, though it may also tend to prove the commission of another separate and distinct offense. State v. Jones, 171 Mo. 407; State v. Whitley, 183 S. W. 321; State v. Sherman, 264 Mo. 382; State v. Banks, 258 Mo. 493. (b) Evidence, which is illustrative of the principal act in the tragedy and a part of the.system of criminal acts so connected together that each tends to establish the guilty intent, rúotive, design and purpose of the other, is competent. State v. Jones, 171 Mo. 407; State v. Collins, 181 Mo. 260; State v. Rudolph, 187 Mo. 85; State v. Bailey, 190 Mo. 280; State v. Spaugh, 200 Mo. 594; State v. Cummins, 279 Mo. 204. (c) The whole of the confession should be received in evidence in order that the jury might say whether it is entitled to credit. State v. Carlisle, 57 Mo. 106; State v. Holenscheit, 61 Mo. 307; State v. Underwood, 75 Mo. 236; State v. Jones, 171 Mo. 407. (d) An objection to the admission of a confession made by a defendant comes too late, if made for the first time after the confession was admitted and read into the record. State y. Levy, 262 Mo. 190. (e)To he available, objections to evidence must be made at the time it is offered. State v. Crab*, 121 Mo. 563; State v. Leahman, 175 Mo. 625; State v. Sykes, 191 Mo. 79; State v. Jackson, 194 S. W. 1078. (3) The court correctly restricted the instructions to murder in the first degree, as there was no evidence to justify instructions for any less offense. State v. Tettaton, 159 Mo. 379; 'State v. Yaughan, 200 Mo. 22; State v. Vaughan, 203 Mo. 673; State v. Eunfelt, 228 Mo. 454; State v. Easco, 239 Mo. 582; State v. Lewis, 273 Mo. 525. (4) The court did not commit error in giving Instruction No. 1. (a) A party may be charged with doing an act himself and be held liable, under such charge, for being present, aiding and assisting another in doing it. Sec. 3687, B. S. 1919; State v. Orrick, 106 Mo. 119; State, v. Valle, 164 Mo. 55Í; State v. Sykes, 191 Mo. 78. (b) When murder is committed in the perpetration of the crime of robbery it is wholly unnecessary to do more than to make the charge in the ordinary and usual way for murder in the first degree, and then show the facts in evidence; and, if they establish that the homicide was committed in the perpetration of such robbery, this suffices. Sec. 3230, E. S. 1919; State v. Meyers, 99 Mo. 113; State v. McGinnie, 158 Mo. 122; State v. Bobbitt, 215 Mo. 33. (c) Appellants are not charged with the crime of conspiracy. Sec. 3490, E. S. 1919. (5) There is no force in the objection that the statute was disregarded in the verdict of the jury, and in the sentences by the court. The punishment of each defendant was separately assessed. Sec. 4046, E. S: 1919; State v. Hollenscheit, 61 Mo. 309; State v. Johns, 259 Mo. 364; Davis v. State, 8 Ala. App. 153; Ex Parte Davis, 184 Ala. 26; Mootry v. State, 35 Tex. Cr. 456; Polk v. State, 35 Tex. Crim. 495; Davidson and Thompson v. State, 50 Tex. Crim. 285; Woodward v. State, 84 Ark. 120; State v. Williamson. 65 S. C. 251; Meadowcroft v. People, 163 111. 85; Walker v. State, 127 Pac. 895. Should this court hold that the punishment was not assessed separately, the cause may be remanded with directions to the trial court to bring the defendants before it, and having done so, to proceed to assess and declare their punishment. State v. Taylor, 261 Mo. 225; State v. Pearson, 234 Mo. 268; State v. Gordon, 153 Mo. 577.
   WHITE, C.

The appellants, with one Walter Shirer, were charged with having murdered one Benjamin .Schowe, in Franklin County, on the twentieth day of November, 1920. On a trial in that county, on December 15, 1920, the jury returned the following verdict:

“We, the jury, find all of the defendants and each of them guilty of murder in the first degree and assess the punishment of John Carroll and Charles W. Jocoy, alias Joseph C'oyler, at death, and assess the punishment of Walter F. Shirer, alias Ralph Davidson, at imprisonment in the penitentiary for life.

“F. L. Ingalls, Foreman.”

Carroll and Jocoy thereupon appealed in due form to this court. Shirer did not appeal.

John Carroll and Walter Shirer became acquainted with each other in Uniontown, Pennsylvania. Armed with automatic revolvers they started west and arrived in the City of Saint Louis Wednesday morning, November 17, 1920, three days before the homicide which occurred the Saturday following. In Saint Louis they met the other defendant, Jocoy. The three decided to “rob some saloons,” but after a day or two of investigation they found conditions unfavorable. They then hired a taxi and forced the chauffeur to drive then into the country, heading for Sedalia. The machine stalled on a hillside, and they abandoned it. In the night they attempted to steal a Ford from a farmer. The farmer was awakened and they retreated. Finally they took a Ford from a man who was driving along the road. They drove westward into Washington, and there robbed a man of six dollars, with which money they bought gasoline. They continued west in their stolen Ford, apparently driving all night Friday night. Some time that night, or Saturday morning, they had a blowout, went to a farmer’s house for breakfast and telephoned to a garage at Berger for a tire, tube and some spark plugs. At that time they were west of Berger in Franklin County, near the county line, on the road toward Hermann in Gasconade County.

Benjamin Sehowe was the owner of a garage at Berger, and received the telephone message. Irvin H. Perle was present and had a Ford machine. Sehowe and Perle thereupon went in Perle’s machine to the scene of the breakdown, with tires, tubes and spark plugs, for the purpose of making the repairs. In the meantime the three defendants had finished their breakfast at the farmhouse, and requested Perle and Sehowe to place two tires and two tubes on the machine which the defendants had. While Sehowe and Perle were working on the car, Carroll looked over Perle’s car, which stood at a little distance from where Sehowe and Perle were at work. Jocoy and Shirer walked over to Carroll, and the three defendants had a conversation in an undertone, which Perle and Sehowe could not understand. After the repairs were made and the machine made ready for traveling, Sehowe figured up his bill, then the three defendants drew their revolvers and ordered Sehowe and Perle to put up their hands, an order with which they complied. Perle had brought in his car a single-barrel shotgun, which one of the defendants took and put.in the car which they had. Shirer then was left in charge of the repaired car, with the engine running. Perle and Sehowe were ordered to get in Perle’s car and drive towards Berger and not “make a crooked move.” Carroll and Jocoy got in the back seat with their revolvers drawn.. Carroll enlivened the apprehension of Perle and Sehowe by saying: “These backwoods people better not monkey with me,' by the time I get through with this western part of the country they wont know me.” After Perle had driven about a quarter of a mile towards Berger, the defendants began to look for a place to turn out of the main road. Finding none they ordered Perle to turn the car around and drive the other way. In attempting to turn, the car was backed off into a ditch so that he was unable to move it. While Perle and Schowe were trying to get the car in motion, another automobile drove along the road. Carroll concealed his revolver and said, “There goes a machine; none of you fellows make a move; stand still,” and the car passed on. Finding Perle’s car could not be started, the appellants ordered Schowe and Perle to get out of the machine and walk back in the direction of the other car. As they had walked along they saw a hay shed near the road, and one of the appellants said, “In back of that hay shed would be a good place.” Defendants afterwards said they intended to tie Schowe and Perle there until they could get away. Schowe then told the defendants they could have the tires and supplies for nothing if they would just let him go. One of the appellants replied that they knew they could get the tires for nothing. Immediately Schowe broke away and started to run back towards Berger. A shot was fired, either by Jocoy or Carroll, and Schowe was struck, the ball passing through his body. One of the defendants then commanded Perle to run; he complied, and they fired several shots which did not take effect. They said they fired into the air. Perle came up with Schowe, who was rapidly weakening, and soon fell or sat by the roadside. Perle called to some men at a farm house on the hill and told them Schowe had been shot.

There was an elevation or hill between where Schowe was shot and where Shirer was. left with the other car. Shirer kept the engine running and while the events just related were occurring he ran to the top of the hill two or three times to' see what was going on. After Schowe was shot and Perle-had run away, Carroll and Jocoy hurried to Shirer, and the three got in the machine and drove rapidly west.

In the meantime the alarm had been sounded and the chase began. The defendants drove their car as far as Hermann in Gasconade County, there abandoned it, and took to the cornfield. The pursuit was so ho.t that they hid in a corn shock. The extemporized posse surrounded them and compelled them to come out, with hands up. Their automatic revolvérs were found covered with dirt, under the corn shock. Schowe was taken back to Berger and died on the same day he was shot; the evidence showed that the shooting took place just east of the county line within Franklin County.

On the morning of the twenty-second the three defendants, then in custody, signified a desire to make a statement. Jocoy gave his nante as Coyler, and Shirer gave his name as Davidson. They were informed that they were not obliged to make statements, and that any statements they might make would be used against them. In the presence of R. W. Otto, Prosecuting Attorney of Franklin County, and James W. Booth, assistant, each of the defendants made a statement which was taken down in shorthand by W. L. Cole, court reporter. These statements were transcribed and afterwards identified by Cole, who swore that they were true and correct statements of what each of the defendants said. In these statements defendants related the facts about the meeting of Carroll and Shirer in Uniontown, Pennsylvania, and coming west; their meeting Jocoy, and the search for saloons to rob; their stealing the automobile, and robbing a man of six dollars in Washington, and telephoning to the garage; they also told about the repair of the machine, and other events, including the shooting of Schowe, and their capture in the corn shock; all'substantially as stated above and related by the other witnesses.

The defendants asserted that they only intended to tie up Perle and Schowe until they could get away, but admitted that they intended- to rob Schowe of the tires and supplies which had been furnished. These statements were read to the jury.

The defendants did not testify. They introduced proof to show they had been in the United States Army, had served with the A. E. F. in France; each of them had been honorably discharged from the service. Mary J ocoy, mother of the defendant J ocoy, testified as to her son’s service in the army, his good habits, and good conduct previous to his engaging in the crimes shown in the evidence here. Carroll produced a number of depositions, taken at Uniontown, Pennsylvania, to show that he had a good reputation for peace and good order, and as a law-abiding citizen. Most of the witnesses who thus testified by deposition said they had never heard his reputation discussed, therefore inferred that it was good. Carroll’s father testified to his son’s previous good behavior; he swore that John Carroll was twenty-two years old. Jocoy was, perhaps, a little older.

I. The defendants filed a motion to quash the information for several reasons, one of which was that it was not verified by the affidavit of the Prosecuting Attorney of Franklin County. The information s^-a^eg jg ^011 the official Oath of Robert W. Otto, Prosecuting Attorney for Franklin County, and it is signed “Robert W. Otto, Prosecuting Attorney;” the affidavit by which the information was verified is signed “Robert W. Otto.” The omission of a statement of his official character with his signature to the oath is immaterial, not prejudicial to the defendant and constituted no ground to quash. [State v. Ferguson, 278 Mo. l. c. 130; State v. Salts, 263 Mo. l. c. 313.]

It is further asserted by appellants that the information charges no offense known to the laws of the State of Missouri. It charges that November 20, 1920, in the County of Franklin, State of Missouri, John Carroll “feloniously, deliberately, premeditatedly and with malice aforethought did make an assault -with a dangerous and deadly weapon, to-wit, an automatic pistol. ’ ’ etc. The information then alleges with sufficient particularity and directness the willful aiming and discharging of the weapon, and the striking of Benjamin Schowe, causing a wound from which Schowe died on the same day, and proceeds as follows:

“That Walter Shirer, alias Ralph Davidson, and Charles W. Jocoy, alias Joseph Coyler, before the said felony and murder was- committed in the manner and form aforesaid and by the means aforesaid, at the time and place aforesaid, did then and there unlawfully, feloniously, wilfully, deliberately, premeditatedly and of their malice aforethought, incite, move, procure, abet, aid, counsel, hire and command him, the said John Carroll, to do and commit the said felony and murder aforesaid in the manner and form aforesaid and by the means aforesaid at the time and place aforesaid.”

The information then proceeds to charge that the three defendants, in the manner and form aforesaid, did murder Benjamin Schowe. It sufficiently charges murder in the first degree against all three of the defendants. The allegation that Jocoy and Shirer were present aiding and .abetting properly charges that they committed the murder. In this State there is no distinction between the principals and the accessories before the fact. [State v. Orrick, 106 Mo. 111; Section 3687, R. S. 1919.] An accessory under that section may be charged as principal. [State v. Schuchmann, 133 Mo. 111.] After stating that Shirer and Jocoy were aiding and abetting, the information charges them in direct terms with having committed the murder, making the proper charge of the crime under the statute. [State v. Sykes, 191 Mo. l. c. 79.]

II. After the statements of Carroll, Jocoy and Shirer were read to the jury, the defendants’ counsel moved to strike out all that portion of Carroll’s statement relating to the other robberies, on the gr°und that it showed the commission of other offenses for which the defendants might be tried and convicted. Evidence of crimes committed by a defendant, other than that for which he is on trial, may be shown for the purpose of establishing a common scheme or plan embracing the commission of two or more crimes so related to each other that the proof of one tends to establish proof of the others. [State v. Lewis, 273 Mo. 531; State v. Bailey, 190 Mo. l. c. 280; State v. Cummins, 279 Mo. l. c. 207.]

Carroll’s statement shows how he and Shirer, armed with automatics, met Jocoy, and the three “went down the street and looted around with intentions of robbing some saloons.” They found nothing which favored their enterprise that night; the next morning they went out on Cherokee Street; “we looked things over out there and decided to go back that night and rob some saloons;” but they found no saloons which presented a favorable opportunity. They commandeered.a taxi, impressed the driver, and drove westward. They abandoned the taxi, robbed a man in Saint Louis County of a Ford car, robbed a man in Washington of six dollars, while proceeding west; finally they attempted to rob Schowe of his tires and in that attempt murdered him. All this occurred in the course of two or three days. Carroll and Shirer arrived in Saint Louis Wednesday morning, and Saturday the murder was committed. That the three men were engaged in a common design to rob whenever opportunity presented, a definite, preconcerted plan to engage in a regular robbing expedition, appears from the language Carroll used. Evidence was admissible to prove’ whatever they did in pursuance of the general scheme which culminated in the murder.

Further, even if the evidence was not competent, the appellants did not make their'objection in time. With full knowledge that such statements were in existence they waited until the statements of all three defendants were read to the jury; the objection came too late to be available. [State v. Frisby, 280 Mo. l. c. 83; State v, Levy, 262 Mo. l. c. 191; State v. Sykes, 191 Mo. l. c. 79; State v. Lehman, 175 Mo. l. c. 625.]

III. The appellants assign error to the giving of Instruction Number One on behalf of the State, which authorized the jury to find a verdict of guilty if they found that the defendants entered into a conspiracy, agreement, or common design to take the property of Schowe and Perle by violence and by putting them in fear; or, entered into a conspiracy or common design with each other to kill or to do the deceased or Perle some great bodily harm; and that in the prosecution of that common design, and while acting in concert, one of the defendants wilfully killed Benjamin Schowe, etc., the jury could find all the defendants guilty of murder, in the first degree.

Complaint is made that the instruction is broader than the allegation in the information because the information does not allege that there is any conspiracy. Where a defendant is charged with the commission of a crime, the evidence of a conspiracy to commit crime may be shown, although the existence of the conspiracy is not charged in the indictment. [State v. Ruck, 194 Mo. l. c. 433; State v. Kennedy, 177 Mo. l. c. 119; State v. Collins, 181 Mo. l. c. 235; 5 R. C. L. p. 1087.] Conspiracy was not the crime of which the defendants stood charged in this case. They were charged with the crime of murder and the conspiracy was an incident; the failure to allege the existence of a conspiracy neither furnished grounds for the motion to exclude evidence of such conspiracy, nor for refusing to give an instruction directing the jury’s attention to it as showing the condition under which the crime was committed. [State v. Lewis, 273 Mo. l. c. 531.]

IV. It is further claimed that the court erred in refusing an instruction offered by defendants authorizing conviction of murder in the second degree. There was no evidence tending to show that the homicide was m'ar<^er the second degree; all the evidence indicated that it was murder in the first degree or nothing, and the refusal to instruct on murder in the second degree was not erroneous. [State v. Rasco, 239 Mo. l. c. 582; State v. Lewis, 273 Mo. l. c. 525.] The defendants, as they admitted in their statements, were attempting to commit a felony by robbing Sehowe and Perle. "Whether the killing was characterized by premeditation and deliberation is immaterial. [Section 3230, R. S. 1919.] The commission of, or attempt to commit, a felony is the legal equivalent or premeditation and deliberation where a homicide is committed in the perpetration or attempted perpetration of the felony. [State v. Garrett, 276 Mo. l. c. 312; State v. Bobbitt, 215 Mo. l. c. 33.]

V. It is claimed that the verdict is irregular in that it does not state that the defendants were found guilty “as charged in the information.” The verdict finds the defendants guilty of murder in the first degree, the crime of which they are charged in the information, and it cannot be supposed that the jury were misled or did not understand what the offense was of which they found the defendants guilty; no possible prejudice could occur to the defendants by reason of that irregularity in the form of the verdict. [State v. Taylor, 261 Mo. l. c. 224-5.]

The appellants claim there was error in the verdict as set out above because in violation of the statute, Section 4046, Revised Statutes 1919, which provides that when several defendants are jointly tried the punishment of each in case of conviction must be assessed separately. This court has held in several cases that the statute is mandatory, and that the assessment of a joint punishment is no assessment at all.

Section 4048, Revised Statutes 1919, provides that where the jury does not assess the punishment in their verdict, or assesses a punishment not authorized by law, “the court shall assess and declare the punishment.” It is held that where a jury renders a verdict such as rendered in this case, fixing a joint punishment for crime against several defendants, the error may be cor-rented if the trial court, in pronouncing the sentence and judgment against the defendant, assesses separately their'punisbments. [State v. Gordon, 153 Mo. 576; State v. Thornhill, 174 Mo. l. c. 370-371; State v. Person, 234 Mo. l. c. 267; State v. Taylor, 261 Mo. l. c. 224-5.] In the Person case, 234 Mo. 1. c. 268, this court quotes the Thornhill case where the following passage appears: “In the more recent case of State v. Gordon, 153 Mo. 576, the verdict was joint and assessed the punishment at five years in the penitentiary. Judge Sherwood, after noting this error, said: ‘The court, therefore, should either have refused to receive the verdict and suggested its being put in proper form, failing; in this, should itself have assessed and declared the punishment (R. S. 1889, sec. 4230; now Sec. 2649, R. S. 1899), which the jury in this case, by their defective verdict, failed to do. For this cause alone the judgment must be reversed and the cause remanded, with directions to the trial court to bring the defendant before it, and having done so, to. proceed to assess and declare his punishment, and otherwise proceed in the cause as required by law.’

“This ruling then and now commends itself, for the reason that, as no error had occurred up to the point of assessing the punishment, no rule of right or policy demanded that the whole case should be retried when the statute furnished its own corrective for such an irregularity.

“At common law no such point as this could arise, because under that system the jury merely returned the verdict of guilty, and the duty of imposing the punishment as to each defendant devolved upon the courts in accordance with the law.

“In State v. Gordon, 153 Mo. 576, it will be observed it was held that the verdict assessing the punishment of both together was in effect a failure to assess it and in such case Section 2649 provides ‘the court shall assess and declare the punishment and render judgment accordingly.’ ”

The Person case was reversed and remanded with directions to the trial court to cause the defendant to he brought before it and to proceed to declare his punishment and to sentence him separately.

In the present case the trial court brought the defendants before it and pronounced judgment against Carroll and Jocoy in these words:

i£It is therefore ordered and adjudged by the court that the said defendants John Carroll and Charles W. Jocoy, alias Joseph Coyler, for the offense of murder in the first degree as charged in the information and in pursuance of the verdict of the jury heretofore rendered against them, be and are hereby sentenced to death and to be taken from this court to the county jail and from there be taken by the sheriff of this county to the St. Louis jail for safe-keeping and confined until Friday the 21st day of January, 1921, and on that day each of them be taken thence by the sheriff of Franklin County, Missouri, to the place of execution, which place of execution shall be in the jail yard, or other proper place as provided by law, and there between the hours of nine o’clock a. m. and five o’clock p. m. of said 21st day of January, 1921, be by the said sheriff hanged by the neck until each of them is dead.”

The judgment is reversed and the cause remanded with directions to the trial court to bring the defendants before it, and having done so to proceed to assess and declare the punishment of each of said defendants, separately; and otherwise ta proceed in the cause as required by law.

Railey and Mosley, GG., concur.

PER CURIAM:

The foregoing opinion by White, C., is adopted as the opinion of the court.

All of the judges concur.


author: HIGBEE, P. J.

text:
    CITY WATER COMPANY OF SEDALIA v. CITY OF SEDALIA, Appellant.
    Division Two,
    June 23, 1921.
    1. PUBLIC UTILITY: Contract With City: Rates Modified by State. A contract between a city and a water company for the supply of water to the city and its inhabitants at given rates is always subject to modification by the paramount authority of the State, and when the Public Service Commission, in pursuance to statutory authority, modifies the contract by establishing higher rates, the contract is not thereby abrogated, but as modified it continues binding and obligatory upon both parties.
    2. -: -: -: Elimination of Useless Hydrants. A request by the city, made at a hearing before the Public Service Commission in a proceeding brought by a water company for an increase in the contract rates for supplying water to the city and its inhabitants, that 87 fire hydrants, mentioned in the contract, be eliminated from the contract and their use discontinued, on the ground that the city had no further use for them, is not for consideration in a- suit by the company for unpaid hydrant rentals, if no action was tahen by the city or the company or the Commission on such request.
    3. -: -:--: In Excess of Annual Revenue: Must Be Pleaded. The issue that the hydrant rental as fixed by the Public Service Commission will result in increasing the indebtedness of the city in one or more years to a sum in excess of the revenue provided for such years and limited by the Constitution, must be pleaded in the answer to the suit by the water company for unpaid rentals, and cannot be raised for the first time in the motion for a new trial.
    4. -: Contract Abrogated by Commission: Excessive Rates: Is'sue Confined to Pleadings. Where in a suit by a water company for unpaid hydrant rentals, the city admitted the execution of the contract sued on, but pleaded, as the sole defense, that the contract had been abrogated by the Commission in increasing the rentals above the contract rates, the plaintiff is not required to offer evidence on an issue outside of the pleadings, and is not required to prove that the indebtedness of the city, if it were compelled to pay the increased rates, would not exceed tlie revenue provided' for the year.
    5. APPEAL: Res Adjudicata: Vexatious Delay. Although the questions raised on the appeal are res adjudicata, the appeal is not necessarily vexatious and for delay.
    Appeal from Pettis Circuit Court. — Hon: H. B. Shain, ■ Judge.
    Affirmed.

      Wilherson S Barnett and R. 8. Robertson for appellant.
    (1) The judgment upon the counts complained of is for services and water which the city had contracted to receive from the plaintiff, hut the amount of recovery is based upon a rate fixed by the Public Service Commission in excess of the rate fixed by the contract. The contract rate was the consideration of the original contract, and when the- rate was abrogated by the Public Service Commission in the exercise of the superior or police power of the State, not only the consideration of the contract but the contract itself was thereby abrogated. (2) The order of the Public Service Commission did not modify the original contract. Contracts can only be modified by the mutual consent of the parties to the contract. 13 C. J. 591. (3) The Public Service Commission represents the State so far as the Legislature represents the Stateand,therefore, the Public- Service Commission, as the arm of the Legislature, can fix a public service rate, and thereby abrogate contracts inconsistent with the rates in the exercise of the police power which is in the Legislature. State ex rel. Sedalia v. Public Service Comm., 204 S. W. 497. (4) The fixing of a rate for a public service does not regulate the affairs of the city, because they may purchase at the reasonable rate as fixed by the State, or they may refrain from purchasing if in the judgment of local authorities the money is needed elsewhere, or if the constitutional limit of taxation has already been reached, or if the local authorities desire to lower taxes. But the Legislature cannot itself, nor through its representative, the Public Service Commission, create both a rate and a contract applicable only to the city, because the Constitution provides: “The General Assembly shall not pass any local or special law . . . (2) regulating the affairs of counties, cities, townships, wards, or school districts ... (3) In all other cases where a general law can be made applicable no local or special law can be enacted. . . . Nor shall the General Assembly indirectly enact such special or local law by the repeal of a general law. ” Sec. 53, Art. IV, Mo. Constitution. (5) The Public Service Commission could not make a contract requiring the city to expend money over a period of years, nor could it modify a contract requiring the city to expend more money than the local authorities had agreed upon for a period of years, because this extra expenditure can only be paid by taxation, and the' Constitution provides that the General Assembly shall not impose taxes upon counties, cities, townships, or other municipal corporations, or upon the inhabitants or property thereof, for county, city, town, or other municipal purposes, but may by general laws vest in the corporate authorities thereof the power to assess and collect taxes for special purposes. Section 10, Art. X, Mo. Constitution. (6) And it also provided that the taxing power may be exercised by the General Assembly for state purposes, but shall be exercised by counties and other municipal corporations for county and other corporate purposes. Section 1,- Article X, Mo. Constitution. (7) The city cannot impose taxes to meet the amount of its expenditures, however great, in excess of constitutional limitation, but must keep within the maximum provided by the Constitution. Section 11, Article X, Mo. Constitution. No city shall be allowed to become indebted in any manner, or for any purpose, to an amount exceeding in any year the income and revenue provided for that year. Section 12, Article X, Mo. Constitution. The incurring of indebtedness by a city beyond the revenue provided for that city is absolutely and unqualifiedly prohibited, no matter what the necessity or pretext may be, or the form which the indebtedness assumes. State v. Neosho, 203 Mo. 40. (8) The burden was upon plaintiff to show that the indebtedness ' incurred by the so-called contract did- not exceed the constitutional limitation provided in Section 12 of Article X of the Constitution, in that it did not exceed the revenues provided for that year; and plaintiff having failed to prove that the indebtedness created did not so exceed the revenue provided for the years in question, the judgment should have been for defendant. Thornburg v. School District, 175 Mo. 12. (9) Even if the evidence had affirmatively shown that the old contract with the water company, if enforced upon the new rate created by the Public Service Commission, would not actually exceed the constitutional limitation upon city indebtedness, yet the Public Service Commission is prohibited by Section 12 of Article- X of the Constitution from modifying contracts and increasing expenditures thereunder, because if such power were in the Public Service Commission, they could create an indebtedness in excess of the constitutional limitation. The question of constitutional power depends not upon what was done in a particular case, but upon what was authorized to be done. People v. Marquis, 291 111. 121.

      J. H. Bothwell and Montgomery & Rucker for respondent.
    (1) In earlier cases between this appellant and this respondent, the Supreme Court fully sustained and confirmed the authority of the Public Service Commission to modify the contract rate for fire hydrants maintained in the City of Sedalia by this respondent, and in the increased rate for fire-hydrant rentals has been approved by this court and sustained by the United States Supreme Court. State ex rel. Sedalia v. Public Service Comm., 275 Mo. 201, 251 U. S. 547. (2) The change of rate and increase of rentals for fire hydrants under the said contract authorized by the Public Service Commission did not abrogate or annul the contract between the city and the water company, but such change was effective in modifying the contract only to the extent of such increase of the rental rates. State ex rel. Sedalia v. Public Service Commission, 275 Mo. 201; Salt Lake City v. Utah Light & Traction Co., 3 A. L. E. Annotated, 715; Eobertson v. Wilmington and P. Traction Co., 104 ■Atl. 839; Portland v. Public Service Comm., 173 Pac. 1178. (3) The question as to the authority and power of the Public Service Commission to charge an increase in the rental rates for fire-hydrants installed and maintained at Sedalia has become res adjudicata between the appellant and the respondent and the legality of such increase of rates cannot be again .attacked in this case. (4) A constitutional question is one of such grave importance that it must be raised at the first opportunity. If it can be appropriately and naturally raised in the pleadings and thereby be a question lodged in the record proper, such is the true place to raise it. If not there raised it is waived. Picket v. Picket, 243 Mo. 654; Lohmeyer v. Cordridge Co., 214 Mo. 689; Hartzler v. Met. St. Ey. Co., 218 Mo. 562. The petition was upon the franchise-contract as modified by the orders of the Public Service Commission. If this theory of the legal effect of the order of the Public Service Commission changing the rates, was open to all of the grave constitutional 'objections now being urged by the respondent, the natural and* appropriate place to raise such constitutional objection was in the defendant’s answer and not in the motion for new trial or the “Assignments of Errors.” (5) There was no evidence offered to show that the city ever had asked for or offered any reduction in the number of fire-hydrants to be installed and maintained by the respondent at Sedalia, and the mere statement of the city’s attorney that 87 of the fire hydrants were not needed, with no action by the city council and mayor and no acquiescence of the water company or approval of the Public Service Commission, did not result in withdrawing any of the fire hydrants from use under the contract.
   HIGBEE, P. J.

The petition alleges, in substance, that the plaintiff is a corporation engaged in furnishing water to the City of Sedalia, a city of the third class, and its inhabitants; that on August 6, 1906, said city adopted an ordinance by which it was provided that the Sedalia Water Company, its successors and assigns, should supply water to said city and its inhabitants and, among other things, should install and maintain all necessary machinery, apparatus, reservoirs, basins, water mains, pipe lines, etc., and said city agreed to rent 398 fire hydrants as then located on the pipe system of said water company, and such additional fire hydrants as said city might order to be installed for the term of said contract, at an annual rental of $30 for each fire hydrant, payable in semi-annual installments on February 1st and August 1st of each year, and that said ordinance was accepted by said water company on August 29, 1906; that plaintiff became the successor of said water company, and owner and operator of the water works system thereof; that on October 29, 1914, plaintiff applied to the Public Service Commission of this State for an increase of its rates for water service; that defendant intervened, and that such proceedings were had that on April 3, 1916, said Commission made an order finding that the rates and charges afor,esaid did not afford a reasonable return on plaintiff’s investment, and plaintiff filed a new schedule increasing the rental of fire hydrants to $45 per hydrant, which was approved and became effective August 1, 1916; that thereafter, on like proceedings, the rate was increased to $55 per hydrant, effective January 1, 1920; that after August 29, 1906, on the order of the city, 46 additional fire hydrants were installed; that in the years 1916 and 1917, seven additional fire hydrants were installed on the order of the defendant.

The petition, in separate counts, pleads the semiannual installments severally accruing; that defendant paid thereon at the rate of $30 per year for each hydrant, and in each count plaintiff prayed judgment for the unpaid balance, with interest.

The answer admits the various allegations of the petition, and pleads that the orders of the Commission increasing the rentals of the hydrants abrogated the contract and that until a new contract was made defendant was liable for such fire hydrants as it might use at the original contract price. It further avers that on December 16, 1918, at a hearing before the commission, plaintiff asked permission to discontinue fire hydrant service to the city, because of its refusal to pay the increased rentals, and that at said hearing the defendant insisted that said original contract was in full force, but if the commission or plaintiff did not wish to continue to operate under said contract, the city had been and was then paying for 87 designated hydrants for which it had no use, and which it was willing for plaintiff to eliminate and discontinue. It also averred that plaintiff waived its contract with the city when it made application for a change of rates, and that defendant is only liable to plaintiff for hydrants actually ordered and used after the orders of the Commission increasing the rates were made.

The reply denied all the allegations of the answer, and averred that the orders of the Commission changing the rates for fire hydrant rentals had only the effect of modifying the contract, and that said modified contract is still binding and obligatory upon the parties.

On the trial, before the court without a jury, the plaintiff read in evidence an itemized statement of the rentals according to the increased rates as they severally became due, credited with payments at the original contract rates, showing the balances claimed to be due on each installment, with the accrued interest. The defendant read in evidence the report of the Commission on its investigation and valuation of plaintiff’s property, and its order approving the schedule of increased rates for the rental of the fire hydrants, and the list of the 87 hydrants filed with the Commission, which might be eliminated. This was all the evidence. There were no instructions asked or given. The finding and judgment were for the plaintiff for the sums claimed in the several counts of the petition, with interest. Motion for new trial having been overruled, the defendant appealed.

Appellant assigns as error: (1) that the court erred in holding that the Commission had power to make or modify a contract on behalf of the city; (2) that the court erred in not holding that the burden of proof was on the plaintiff to show that the contract was not for an expenditure in excess of the income and revenue of the city in any year provided for such year, within the meaning of Section 12 of Article 10 of the Constitution; (3) because there was no evidence that the expenditure and indebtedness provided for under the contract under the increased rates was not to an amount exceeding, in any year, the income and revenue provided for such year; (4) because the court erred in holding that the Commission had power to so modify the contract as to make it necessary for the city to fund its indebtedness and to provide taxation therefor in contravention of Sections 1 and 10 of Article 10 of the Constitution; (5) because, if any liability was shown, it was on a quantum meruit and not on a contract; and (6) because the judgment appropriates the city revenue without any act of the city or city council, contrary to the provisions of Section 9227, Revised Statues 1919.

When the new schedules of rates were approved by the Commission, the city, by statutory certiorari, took the matter to the Circuit Court of Cole County for review, where the reasonableness of the rates fixed by the Commission was approved. On appeal to this court the judgment was affirmed. [State ex rel. City of Sedalia v. Pub. Serv. Comm., 275 Mo. 201.] The case was then taken on writ of error to the Federal Supreme Court (251 U. S. 547), where the writ was dismissed for want of jurisdiction, upon the authority of Pawhuska v. Pawhuska Oil Co., 250 U. S. 394.

I. The very questions raised on this record were thoroughly considered by Graves, J., in State ex rel. Sedalia v. Pub. Serv. Comm., supra, in an elaborate opinion concurred in by all the members of Division One. At the top of page' 206, it is said:

“Under the facts of the record, the reasonableness of the rates fixed by the Public Service Commission cannot be seriously questioned. This Feaves the single question as to whether or not the Public Service Commission had the lawful right to fix a rate, so far as the city is concerned, in excess of the ordinance rate. Such is the case when cleared of all driftwood.”

Eeferring to the Public Service Commission Act of 1913, the learned opinion quotes from State ex inf. v. Kansas City Gas Co., 254 Mo. l. c. 534:

“That act is an elaborate law bottomed on the police power. It evidences a public policy hammered out on the anvil of public discussion. It apparently recognizes certain generally accepted economic principles and conditions, to-wit, that a public utility (like gas, water, car service, etc.) is in its nature a monopoly; that com-, petition is inadequate to protect the public and, if it exists, is likely to become an economic waste; that State regulation takes the place of and stands for competition; that such regulation, to command respect from patron or utility owner, must be in the name of the overlord, the State, and to be effective must possess the power of intelligent visitation and the plenary supervision of every business feature to be finally (however invisibly) re-fleeted in rates and quality of service. It recognizes that every expenditure, every dereliction, every share of stock or bond or note issued as surety is finally reflected in rates and quality of service to the public, as does the moisture which arises in the atmosphere finally descend in rain upon the just and unjust tvilly nilly.”

The opinion concludes:

“It is, however, clear that under our Section 5 of Article 12 of the Constitution of 1875 (a section not heretofore found in our Constitution) the Legislature itself cannot abridge the police power of the State. Nor can ..it authorize a municipal corporation to make a contract abridging or limiting such police power. So that if, as we have held, the fixing of rates for public service is an exercise of the police power, then under other rulings cited above, the Public Service Commission had a right to fix reasonable rates irrespective of the alleged contract. The great weight of authority so holds. Cases from a great number of states will be found in the briefs for the Public Service Commission. These discuss the question from different angles, but reach the same conclusion. We have preferred to rest the ruling in this case upon what this court has previously ruled, which rulings have been in the light of our own peculiar constitutional provision. Under it the sovereign police power of the State is preserved intact, irrespective of contracts with reference to rates for public service. Under it no contract as to rates will stand as against the order of the Public Service Commission for reasonable rates, whether such reasonable rates be lower or higher than the contract rate. Under the Constitution and the Public Service Commission Act, the Public Service Commission (supervised by the courts as to the reasonableness of rates) is exercising the police power of the State by its- delegated authority from the Legislature. Its rates therefore constitutionally and legally supersede any and all contract rates. Other theories of case law need not be noted.”

In Pawhuska v. Pawhuska Oil Company, supra, the city granted a franchise to the oil company which, provided that it should have its pipe lines in the streets and that it should furnish the city and its inhabitants with gas at flat or meter rates at the option of the consumers, and that the rates should not be in excess of fixed standards. Under the Act of 1913, it was provided that the corporate commission of the State shall have general supervision over all public utilities, with power to fix and establish rates, and to prescribe rules, requirements and regulations affecting their service. The Commission, after a hearing, made an order which recites that the evidence disclosed that the franchise rates had become inadequate and unremunerative and that supplying gas at flat rates was productive of wasteful use. The order abrogates all flat rates, increases the meter rates and requires that the gas be sold through meters to be supplied and installed at the company’s expense. On appeal by the city, the Supreme Court of the State affirmed the order. [166 Pac. 1058.] A writ of error was issued by the Federal Supreme Court to review this judgment. In the course of his opinion, at page 399, Mr. Justice Van Devanteb quoted from the opinion in New Orleans v. New Orleans Water Works Co., 142 U. S. 79, as follows :

“In this case the city has no more right to claim immunity for its contract with the Water Company, than it would have had if such contract had been made directly with the State. The State, having authorized such contract, might revoke or modify it at its pleasure. ’ *

In Woodburn v. Pub. Serv. Comm., 82 Ore. 114, L. R. A. 1917C, 98, 161 Pac. 391, it is said:

“When Woodburn granted the franchise to the telephone company, the city exercised its municipal right to contract, and it may be assumed that the franchise was valid and binding upon both parties until such time as the State chose to speak; but the city entered into the contract subject to the reserved right of the State to employ its police power and compel a change of rates, and when the State did speak, the municipal -power gave way to the sovereign power of the State.” See Salt Lake City v. Utah Light & T. Co., 173 Pac. 556, 3 A. L. R. 715.

II. The rule thus established is that every contract between cities of this State and a public utility is always subject to modification by the paramount power of the State, and when a change is so made it is binding upon the city, the change having been made by the State as the representative of the city. Hence it follows that the contention that the increase in the rates of the hydrant rentals abrogated the contract is untenable. The contract, as modified by the Commission, is binding and obligatory upon both parties until such time as the Commission may determine to reopen the case.

III. The defendant offered in evidence a list of 87 fire hydrants which it claimed should be eliminated. No action was taken by the city, the water company or the Commission on this offer. Hence the matter js 110t before US.

XV. The other assignments of error are not here for consideration on this record. They were not pleaded in the defendant’s answer. They were first raised in the motion for new trial. It may be that the action of the Commission in raising the annual rental of the fire hydrants from $30 to $55 each would result in increasing the indebtedness of the city in one or more years to a sum in excess of the revenue provided for such years. If that be true, the natural and appropriate place to raise such a constitutional question was in the defendant’s answer and not in the motion for new trial.

V. The answer admitted the execution of the contract sued upon, that is, that it was legally executed, but pleaded that it had been abrogated by the action of the Commission in increasing the rental rates without the consent of the city. That was the sole defense. The rule announced in Thornburg v. School District, 175 Mo. 12, has no application. The action in that case was upon certain bonds which plaintiff alleged had been issued by the school district. The answer admitted that the bonds were issued by the persons then holding the position of directors of the district, but averred that their issue was not authorized by an election as required by law, and that the aggregate amount of the bonds so issued exceeded five per centum of the value of the taxable property of the district; consequently the bonds were invalid. On the issue so tendered by the answer, it was held that the burden was on the plaintiff to prove, that the requirements of the law had been complied with in the issue of the bonds. It is obvious that the rule invoked has no application to this case. Plaintiff was not required to offer evidence on an issue not made by the pleadings.

VI. The questions raised on this appeal were res ad judicata, but that the appeal was, therefore, vexatious and for delay is a non sequitur. Cases are not wanting in which this court has been set right on a second appeal in the same ease. [Bagnell Timber Co. v. Railway, 242 Mo. 11, overruling S. C. 180 Mo. 420; Hamilton v. Marks, 63 Mo. 167, overruling S. C. 52 Mo. 78; Murphy v. Barron, 275 Mo. 282, 228 S. W. 492.] We are not persuaded that this appeal was for vexation or delay, or that the taxpayers of the City of Sedalia should be penalized as for a vexations appeal.

The judgment is affirmed.

All concur except D. E. Blair, J., not sitting.