author: BURGESS, J.

text:
    CITY OF ST. LOUIS v. MARY E. SESSINGHAUS, Appellant.
    Division Two,
    February 2, 1909.
    CONFESSED ERROR: Remanded But Not Reversed. Respondent (plaintiff) confesses error for that in the trial the taxhill on which the suit is founded was not offered in evidence. Held, that the judgment will he reversed and the cause remanded for new trial, and will not he reversed without remanding. On a new trial defendant will not he confronted with a holding of this court that the point relied upon for a reversal was ruled against her.
    Appeal from St. Louis City Circuit Court. — Ho». John A. Blevins, Judge.
    Reversed and remanded.

      Earl M. Pirkey for appellant.
   BURGESS, J.

By stipulation between the parties to this suit, by their respective attorneys, error is confessed. The judgment is reversed, and the cause remanded. '

Defendant has filed in this court a motion to modify the order and judgment reversing the judgment of the lower court and remanding the cause so that the judgment may simply be reversed, without remanding.

We were in error in stating that the parties to the suit, by stipulation, confessed error, when in fact it was the plaintiff only. There was failure of proof on the part of plaintiff in the trial court in not offering in evidence the taxbills on which the suit is founded, and plaintiff confesses error in this respect and in the action of the court in overruling defendant’s motion for a new trial.

The appellant insists that she is entitled to a reversal of the judgment, without remanding the cause, and that if this be not done the trial court, upon another trial, will probably consider the point relied upon for reversal as being ruled against her, and will follow such supposed ruling, and that in such event another appeal might be necessary, thus unjustly subjecting her to the expense and delay of another trial and appeal in order to clear the title to her property.

We are not impressed with the logic or fairness of this contention. Because the respondent confesses error upon this one point is no reason for presuming that it will occur upon another trial, or that there is merit in appellant’s contentions as to other assigned errors of the trial court. If error had not been confessed in this court, but the case heard, and the judgment reversed .and the cause remanded for new trial upon the single ground of plaintiff’s failure to introduce the taxbills in evidence, it will hardly be contended that the case would not be for trial de novo, or that plaintiff, with the permission of the court, would not, upon retrial, have the right to introduce additional evidence, or amend its pleadings if necessary.

To sustain the defendant’s contention would be to deprive plaintiff of the right to a hearing of its whole case. This we shall not do. The error confessed can be corrected, of course, upon retrial of the cause.

We modify the statement, but overrule the motion to modify the order and judgment.

All concur.


source: Caselaw Access Project

author: FOX, J.

license: Public Domain

text:
    THE STATE v. E. L. BROWN, Appellant.
    Division Two,
    February 2, 1909.
    INSTRUCTION: Defendant as a Witness: Interest in Result. Where defendant was guilty of obtaining property under false and fraudulent representations if the State’s only witness was to be believed, and was not guilty if defendant was to be believed, and the case narrows itself down to a question of veracity between the two, the court did not err in instructing the jury that “the defendant is a competent witness in his own behalf and you may consider his testimony, but in determining what weight and credit you will give his testimony, you may take into consideration the fact that he is the defendant on trial and interested in the result of the trial.” The instruction did not in effect tell the jury to ignore defendant’s testimony.
    Appeal from Butler Circuit Court. — Hon. J. G. Sheppard, Judge.
    Affirmed.

      Abington é Phillips for appellant.
    Defendant was a competent witness in his own behalf and had the right to have his testimony considered by the jury, and the authority given the jury in the State’s instruction 5 to render a verdict without considering defendant’s testimony was error. State v. Austin, 113 Mo. 539; State v. Sanders, 106 Mo. 196.

      'Herbert S. Hadley, Attorney-General, and F. G. Ferris, Assistant Attorney-General, for the State.
    (1) The information is sufficient in form and substance. State v. Vandenburg, 159 Mo. 230. (2) The instructions fully and fairly covered all the questions of law arising in the case which were necessary for the information of the jury in giving their verdict. State v. Scott, 48 Mo. 422; State v. Sarony, 95 Mo. 349. And the court having fully and properly instructed the jury, did not commit error in refusing other instructions requested by defendant. State v. Barrington, 198 Mo. 106; State v. Campbell, 210 Mo. 229:
   FOX, J.

This appeal on the part of the defendant is from a judgment of conviction for obtaining property under false and fraudulent representations, rendered in the Butler Circuit Court.

On the 17th day of February, 1908, there was filed in the office of the clerk of the circuit court of Butler county, Missouri, in vacation of said court, transcript of a preliminary examination in this cause. Subsequently, on the 24th day of February, 1908, in vacation of said court, the prosecuting attorney of said county filed an information against the defendant, substantially charging that the defendant, at said county, on or about the 21st day of December, 1908, did feloniously, designedly, knowingly and fraudulently, with the intent then and there to cheat and defraud one J. S. Kochtitzky falsely pretend, represent and state to said Kochtitzky, that he, the said Brown, had completed certain work under a contract, which entitled said Brown to receive from said Kochtitzky the sum of $75; and the said Kochtitzky, believing said representation and being deceived thereby, was induced, by reason thereof, to pay and deliver to said Brown a certain check of the value of $30, as part payment for said work.

At the April term, in the circuit court of said county, the defendant appeared and waived formal arraignment and entered his plea of not guilty, whereupon the trial of the cause proceeded.

We shall not undertake to set out in detail the testimony developed upon the trial of this cause. It is conceded by learned counsel for appellant that the testimony of the prosecuting witness tended to establish the charge as embraced in the information. As indicating the nature and character of the proof upon which this cause rests we quote from the brief of the appellant now before ns. They say: “This case depended upon the testimony of two witnesses for its final determination by the jury •, one of these witnesses was the prosecuting witness Kochtitzky; the other was the defendant. If the testimony of Kochtitzky was to be believed, the defendant was guilty as charged in the information, and the yerdict of the jury was warranted. If, on the other hand, the defendant was to be believed, and if the facts recited by him as a witness were true, then he was entitled to an acquittal at the hands of the jury. The trial of the cause, as is shown by the record, resolved itself into a question of veracity between the prosecuting witness, Kochtitzky, and the defendant Brown, and the weight to be given to the testimony of each.”

This commendable, frank statement as to the proof in this cause is sufficient to enable us to determine the only legal proposition involved.

At the close of the evidence the court instructed the jury and the cause was submitted to them and they returned a verdict finding the defendant guilty as charged and assessed his punishment at imprisonment in the penitentiary at a period of two years. A timely motion for new trial was filed by the court and overruled. Sentence and judgment was entered of record in accordance with the verdict and from this judgment defendant prosecuted this appeal, and the record is now before us for review.

OPINION.

The record in this cause discloses but one assignment of error, which is thus stated by learned counsel for appellant: “The court erred in giving the State’s instruction numbered 5 to the jury, which is as follows:

“The court instructs the jury that the defendant is a competent witness in his own behalf and you may consider his testimony, but in determining what weight and credit you will give his testimony, you may take into consideration the fact that he is the defendant on trial and interested in the result of the trial.”

Manifestly the complaints of the appellant are narrowed down to within a very small compass. It is insisted that the court committed error in giving the instruction as heretofore indicated. It is earnestly argued that with the testimony of the prosecuting witness on the one side and the defendant upon the other trembling evenly in the balance, the court should not have given the directions to the jury which are embraced in the instruction complained of.

After a full and careful consideration of the complaint so earnestly and ably urged by counsel for appellant against this instruction, as well as a careful review of the adjudications by this court applicable to that subject, we see no escape from the conclusion that there was no error in the giving of that instruction. The cases in this court in which substantially the same instruction has been approved are so numerous that we feel there is no. necessity for citing authorities. In fact it is conceded by counsel for appellant in their brief that there are cases in this State that have been affirmed by this court wherein instructions similar to the one herein criticised have been given by the trial court. It is not subject to the criticism made by counsel in which it is said that this instruction in effect told the jury to ignore the testimony of the defendant. It expressly told the jury that the defendant was a competent witness; that they might consider his testimony, but in determining what weight and credit you will give his testimony, you may take into consideration the fact that he is the defendant on trial and interested in the result of the trial. Manifestly this is hut the usual and ordinary instruction which has repeatedly met the approval of this court.

An examination of the cases of State v. Austin, 113 Mo. 538, and State v. Sanders, 106 Mo. 188, will demonstrate that the language employed in the instructions in those cases was materially unlike the instruction in the case at har, and that the ruling in those cases falls far short of supporting the contention urged in the case now before us. It is significant that in neither of those cases did the court undertake to overrule prior decisions in which instructions substantially the same as the one now under consideration were approved. The simple fact that the prosecuting witness testifies to one state of facts and the defendant to another, furnishes no reason why the court should not give the usual and ordinary instruction which had so uniformly met the approval of this court, informing the jury that in determining the weight to be attached to the defendant’s testimony they were authorized to take into consideration the fact that he is the defendant testifying in his own behalf, as well as his interest in the result of the trial.

Unless we are willing to overrule the repeated adjudications by this court upon this subject it must be held that the action of the court in the giving of this instruction was entirely proper. We see no valid, legal reason for departing from the well-settled rules applicable to this subject. With this conclusion the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


author: GANTT, P. J.

text:
    THE STATE v. CHARLES SHOCKLEY and M. R. LIVELY, Appellants.
    Division Two,
    February 2, 1909.
    1. RECOGNIZANCE: No Bill of Exceptions. Where appellants entered into a recognizance for the presence of the principal at court, and on his failure to appear the recognizance was forfeited, and scire facias issued, and judgment according to law for the amount of the penalty was entered, and the record proper is free from error, and there is no bill of exceptions, the judgment will be affirmed.
    2. -: Appellate Jurisdiction. From a judgment on a recognizance for $500, in a felony case, the appeal is to the Supreme Court.
    Appeal from Jasper Circuit Court. — How. Hugh, Dabbs, Judge.
    Affirmed.

      Herbert 8. Hadley, Attorney-General, and Frank Blakej Assistant Attorney-General, for the State.
   GANTT, P. J.

This is a proceeding by scire facias to enforce a recognizance in the sum of five hundred dollars, entered into by Charles Shockley as principal and M. R. Lively as surety, for the appearance of said Shockley in the circuit court of Jasper county to answer a charge of felony, to-wit, the setting up and keeping a gambling device and enticing and permitting divers persons to play at the same for money and property.

The defendant Shockley failed to appear according to the conditions of this said recognizance and made default, whereupon the recognizance was order forfeited and a scire facias directed to issue against him and his said surety. The defendant Lively was duly served but Shockley could not be found. At the return term the proceeding was dismissed as to Shockley and a trial had which resulted in a judgment for $500, the penalty of the recognizance. Defendant Lively filed motions for new trial and in arrest, which were heard and overruled and he appealed to this court. No hill of exceptions was filed by him and the cause must be determined upon the record proper. Defendant is not represented in this court by counsel and no brief has been filed in his behalf. We discover no error in the record proper and as this recognizance was given in a felony case this court has jurisdiction thereof, notwithstanding the penalty of the recognizance is less than $4,500.

The judgment must be and is affirmed.

All of this division concur.


author: FOX J.

text:
    THE STATE v. CHARLES SHOCKLEY, S. A. KELLER and J. B. McCOLLOUCH, Appellants.
    Division Two,
    February 2, 1909.
    RECOGNIZANCE: No Bill of Exceptions. Where the appellants entered into a recognizance for the appearance of the principal at court, and, upon his failure to appear, the recognizance was forfeited, and scire facias issued, and the sureties were served with process, hut not the principal, and the proceeding was dismissed as to him, and upon the answer of the sureties, Judgment was entered against them, for the amount of the pen- . alty, and they appeal, hut file no hill of exceptions, the record proper being according to law and free from error, the Judgment will be affirmed.
    Appeal from Jasper Circuit Court. — How. Hugh Dabbs, Judge.
    Affirmed.

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

This is an appeal by tbe defendants from a final judgment of tbe circuit court of Jasper county against defendants S. A. Keller and J. B. Mo Collouch, who were sureties upon a recognizance of the defendant Charles Shockley.

The record discloses that on January 30, 1908, the circuit court of Jasper county ordered the forfeiture of recognizance given by Charles Shockley, as principal, and S. A. Keller and J. B. McCollouch, as sureties, to secure the presence of said principal before said court at the January term, 1908; scire facias was ordered to issue against the defendant and his sureties, and they were ordered to show cause why said judgment of forfeiture should not be made absolute. Said scire facias was duly issued upon January 30, 1908, and served upon the two sureties, S. A. Keller and J. B. McCollouch, but diligent search on the part of the sheriff failed to find the principal, Charles Shockley. The prosecuting attorney then dismissed as to defendant Charles Shockley, who was discharged by the court. The sureties, S. A. Keller and J. B. Mc-Collouch, filed a plea to the scire facias upon the 24th of April, 1908, denying each and every allegation therein contained.

The cause coming on for hearing, the court found the issues in favor of the State of Missouri, and ordered the judgment made final and absolute, and execution to issue against said sureties for the amount of the recognizance, to-wit, $1,000, and the costs of the suit.

Within due time a motion for new trial was filed, which was overruled. A motion in arrest was also filed and overruled. An appeal was then prayed for and granted to this court.

The record before us fails to disclose any bill of exceptions preserving the objections and exceptions to the action of the court during the progress of this proceeding, hence there is nothing before us for consideration except the record proper.

An examination of the record proper discloses that upon the failure of the defendant to appear before the circuit court to answer the criminal charge there pending against him, the recognizance, which was in due form, entered into by. the defendant, was, by order of the court, duly forfeited, scire facias in proper form was duly issued and the defendants were properly served and the return of such service duly made by the proper officer. At the April term, 1908, of the circuit court of Jasper county, the defendants, S. A. Keller and J. B. McCollouch, filed their answer, putting in issue the question as to their liability upon such recognizance. The prosecuting attorney dismissed the cause as to- Charles Shockley, and the trial court upon a hearing rendered judgment against the other two defendants for the sum of one thousand dollars, being the penalty for the recognizance forfeited.

The judgment appears to be in proper form, and as herein indicated the entire record is regular, and there being nothing before us but the record proper, the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


text:
    THE STATE v. MAX SHAPIRO, Appellant.
    Division Two,
    February 2, 1909.
    1. MOTION FOR NEW TRIAL: Within Four Days: Sufficient Recital. Where the record discloses that the verdict was returned on a certain day, and “thereupon the said defendants by their attorney filed their motion for a new trial herein,” and that defendant was on the same day admitted to bail to appear from day to day to answer to his motion for a new trial, it sufficiently appears that the motion, was filed within four days after the verdict. <■
    2. RECEIVING STOLEN GOODS: Charged as Copper: Proof of Brass. The State is not so' bound by the testimony of its own witness as to be precluded from disproving it by the testimony of other witnesses. Defendant was charged with receiving “ten hars of new copper metal,” knowing them to have been stolen, and two witnesses testified that they stole ten bars of copper, and they and another that ten bars of copper were sold to defendant who received them.' Another witness for the State, from whom the metal was stolen, testified that he had no copper but that eleven bars of brass were stolen, and that brass and copper were very different substances. Held, that the State was not concluded by the testimony of this witness, and the testimony of the other witnesses was sufficient to submit to the jury the issue made by the information that it was copper, and not brass, that was stolen and received by defendant.
    3. -: Evidence: In Contradiction of Immaterial Matter. It is not error to exclude testimony in contradiction of testimony produced by the State immaterial to the issues. Where defendants were being tried for receiving stolen copper on March 30th, and the "State’s witness testified that they traded for a horse on that day, it was not error to refuse to permit defendants to show that the only horse transaction they had during the month of March was on March 13th. The impeaching or contradictory evidence should have been directed to the occurrence on March 30th.
    4. -: -: Rejection: No Offer. Where a witness is not permitted to answer a question, the judgment will not be reversed unless appellant offers to show what the testimony would be.
    5. -: Instruction: Withdrawal: Accomplice. It is not error for the court to withdraw an erroneous instruction, and to orally inform the jury that it is withdrawn and not to consider it. Where defendant was being tried for receiving stolen goods, and the principal witness against him was the boy who stole the goods, it is not proper to tell the jury that such boy and (defendant were accomplices and that the testimony of the boy should be received with great caution; and the court, having given such instruction, did not commit error when its attention was called to it, in withdrawing it.
    6. ACCOMPLICE. The receiver of stolen goods, knowing them to have been stolen, and the thief who alone stole them, are not accomplices.
    7. RECEIVING STOLEN GOODS: Must be Those Stolen: Copper: Brass. The accused cannot be charged with receiving ten bars of copper metal, knowing it be stolen, and convicted of receiving brass, knowing it to be stolen. Copper and brass are not the same. The State’s witness' testified that copper is a basic metal, an ore; and that brass is a compound of various metals, namely, copper, tin, zinc and lead; and that he had no copper, that none was stolen from him, but that eleven ingots of brass were stolen. Held, that defendant cannot, on such testimony, be convicted of receiving ten ingots of copper ■ knowing them to have been stolen.
    8. -: -: Instruction. The defendants were charged with receiving ten bars of new copper metal, knowing them to have been stolen, and witnesses for the State testified that they stole ten bars of copper from the Standard Smelting Company and sold them to defendants, but the manager and principal owner of that company testified that it did not deal in copper, that no copper was stolen, but eleven ingots of brass were stolen, and that copper and brass were very different metals. The instruction told the jury that if they believed “the property described in the information, to-wit, ten bars of new copper metal or ten bars of metal of the description mentioned in the evidence,” were stolen from the Standard Smelting Company, their verdict should be guilty. Held, that ’ the information charged one crime, namely, the receiving of stolen copper, and the instruction erroneously permitted them to be convicted of another crime, namely, the receiving of stolen brass, whereas there was no evidence at all that they had received any stolen brass.
    9. --: - — : Cured by Another. Nor was the error of said instruction cured by another telling the jury that defendants were on trial for buying and receiving, knowing them to have been stolen, ten bars of new copper metal on or about March 30, 1907, and upon no other charge of having received stolen property. The obvious purpose of this instruction was to confine the jury to the transaction of March 30th, and prevent them from finding defendants guilty on proof of previous thefts and receipt of stolen copper. It did not purport to change the direction of the other instruction.
    10. - — : —t—: -: -: Jeofails. The Statute of Jeofails cures many defects in evidence, but it does not permit the State to charge a defendant with stealing specific property of one kind and convict him of stealing another and- distinct property. And even if it did, it would be violative of the constitutional provision that “in criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation” against him.
    Appeal from St. Louis City Circuit Court. — Hon. Geo. H. Williams, Judge.
    Reversed and remanded.

      C. Orriclt Bishop for appellant.
    The court erred in overruling appellant’s objection to any further evidence under the information and in overruling appellant’s demurrers to the evidence. The information specifically described the property alleged to have been stolen from the' Standard Smelting Company, and afterwards received by appellant, as ten bars of new copper metal. There was no evidence whatever that any new copper metal was stolen from that company on or about the 29th or 30th of March, nor that appellant received any new copper metal at or about that time. The evidence showed that some brass had been stolen from that company on the 29th or 30th of March, and tended to show that what was thus stolen was by the thief sold to appellant. According to the testimony of the only witness on that point (the manager of the company), copper and brass are commonly known as entirely separate and distinct articles commercially: “If one were to order copper he would not be understood as asking for brass, nor vice versa.” There was an absolute failure of proof of the stealing and the receiving of the article charged in the information to have been stolen and received. State v. Plant, 209 Mo. 312. The error of the court in overruling the objection and demurrers was accentuated in the instructions. Would the information be sustained by proof that the property alleged to have been stolen was iron, zinc, tin, antimony? And is there not as much difference, under the evidence, between 10« bars of new copper metal and 10 ingots of brass, as between a diamond stud and a diamond ring? State v. Plant, supra. A defendant has the right to know the nature and the cause of the accusation against him, and the informant has no right to accuse him of one thing and then to prove him guilty of another. Com. v. Gavin, 121 Mass. 54.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.-
    Instruction 2, as given, is not objectionable. Appellant contends that it permitted the jury to convict for receiving stolen brass, “mentioned in evidence” by Hess, whereas, the information charges the receiving of “new copper metal.” For more than one reason this contention must fail. (1) The evidence nowhere shows a theft of brass by Flannery and Tross, nor does it anywhere intimate the sale of brass to defendant. (2) Instruction 4 clearly requires the jury to confine its investigations to the question of receiving ten bars of new copper metal, and forbids them to convict for anything else. (3) Further, brass is not included in the terms of instruction 2, “ten bars of metal of the description mentioned in evidence,” because brass is an alloy, and is not a metal. The encyclopaedists and lexicographers all define a metal as “an element,” “an elementary substance.” Standard Dictionary, Century Dictionary, Ency. Britannica, Ency. Americanna, Johnson’s Universal Ency., Rees’ Cyc. If defendant feared that the jury might misunderstand the term metal, he should have ashed an instruction defining it. This he failed to do. (4) the jury could not, under the evidence and instructions, have been misled. Defendant was not prejudiced by this instruction under the circumstances in this case. State v. Paulsgrove, 203 Mo. 205. (5) The case of State v. Plant, 209 Mo. 307, cited by appellant, is not applicable. There defendant was charged with stealing a diamond ring. The proof was that he stole a diamond stud. The diamond in each was the same, and it is true that the two articles are entirely different. It.is also true that brass and copper are entirely different things. But here the resemblance of that case to this ends. For, in the present case, appellants were charged with receiving stolen copper. The proof showed that they received copper and that the jury were instructed (Inst. 4) to find them not guilty unless they found that they received, with guilty knowledge, “ten bars of new copper metal.” In the face of this the contention as to Hess’s testimony showing a variance cannot stand. No objection to Hess’s testimony was made on proper grounds and the later testimony as to the theft and receiving of copper was competent. Hess’s testimony did not estop the State from making out its case by other witnesses.
   GANTT, P. J.

At the April term, 1907, of the circuit court of the city of St. Louis, the circuit attorney filed an information charging that defendant jointly with one Lipschitz did in the city of St. Louis on the 30th of March, 1907, feloniously buy, receive and have ten bars of new copper metal of the value of fifty dollars of the goods and chattels of «the Standard Smelting Company, a corporation, then lately before feloniously stolen from said Standard Smelting Company, then and there well knowing the same to have been feloniously stolen, etc.

The defendants were arraigned on May 8, 1907, and put upon their joint trial on the same day. They were each convicted and their punishment assessed at two years in the penitentiary.. On the same day a motion for new trial was filed by defendants, which was afterwards overruled and a motion in arrest was also filed and overruled. And the defendants were each separately sentenced to the penitentiary. The defendant Shapiro alone filed a bill of exceptions and perfected his appeal to this court.

The evidence on the part of the State tended to show that the Standard Smelting Company was a Missouri corporation, with its place of business at number 948 Chouteau avenue, in the city of St. Louis, at which place it kept scrap metals of all kinds and also ingot metals. That on March 29', 1907, there were ingots of brass in the building near a door opening upon an alley, and on the following morning eleven ingots of brass were missing, weighing about eighteen or twenty pounds each, and this missing brass was never recovered. Mr. Gr. W. Hess, one of the owners of this business, testified that on the night of the 29th of March, 1907, they did not have on hand any copper metal. He was positive that the metal stolen fr.om his place of business was brass. He testified that copper is original metal, it is composed of copper ore smelted. There was no such original metal as brass, that in the business world copper and brass are commonly known as entirely separate and distinct articles in a commercial sense, and the same is true in the arts and sciences; that copper is a basic metal, and brass is a compound made from various elements, to-wit, copper, tin, zinc and lead. After Mr. Hess had so testified the defendant objected to any further evidence under the information, on the ground that the charge was for receiving stolen copper knowing it to be stolen, whereas the proof had demonstrated that the ingots that were stolen were brass; this objection was overruled, and defendant duly excepted.

The State then introduced another witness, one Harry Flannery, a boy about sixteen years old, who testified that on March 30th he had a transaction with the defendant about copper; that he, witness, and another boy, Eugene Tross, had broken into the foundry of the Standard Smelting Company and stolen ten bars of copper from that company about ten o’clock at night and hid the same in an ash pile in an alley near Twelfth street and Chouteau avenue; that he went to defendant Shapiro’s house the next morning, March 30th, and told him he had some copper and if he had a wagon they could go> down and get it. Defendant said he had no wagon at that time, but he would try and find one. They left the house and went up town, nothing having been said about the price he was to receive for the copper, and met the other defendant Lipschitz, who had a horse and wagon. The defendant had some private conversation with Lipschitz ont of the hearing of the witness, who said he saw defendant hand Lipschitz a yellow-back bill which appeared to the witness to be a twenty-dollar bill; that during this time they were trading for a horse, which trade was finally consummated, and defendant then told Lipschitz to go with the witness, and the latter and the witness got on a wagon and rode to the place where the copper was said to have been concealed and there the witness with two' other boys, Eugene Tross and John O’Brien, passed ten bars of copper to Lipschitz, who covered it with rags as he placed it in the wagon and, after giving witness twenty dollars, drove off. Over the objection of the defendant Flannery also testified that about three weeks before that time, he had sold defendant one bar of copper for two dollars, which witness had stolen from the Standard Smelting Company, and he told the defendant at the time that he got it at the Standard Smelting Company’s place; the defendant told him to go back and get some more and defendant would buy it at the same price, giving witness his address on a card, which witness threw away. On cross-examination Flannery stated that he was'arrested some time after this transaction and that he had stoutly denied all knowledge of the alleged theft and when confronted with defendant and Lipschitz in the police office maintained that he had never seen them before; that he had never implicated the defendant in the transaction in any way until after he had a talk in the jail with one Red King, a prisoner in the jail, after which he was taken from the jail to the office of the assistant prosecuting attorney, and there had made statements which led to this charge against the defendant.

Eugene Tross also testified that he had helped Flannery steal copper from the Standard Smelting Company’s place, and saw a wagon loaded with the bars and afterwards received ten dollars from Flannery.

John O’Brien testified that he helped to load the wagon and saw Flannery ride away with Lipschitz.

At the close of the State’s evidence the defendant requested an instruction for acquittal, which was refused and exceptions saved. On the part of the defendant there was evidence tending to show that he was a man of good character and also evidence tending to show that March 30, 1907, was the conclusion of the Jewish Easter, when services were held in the Jewish place of worship, and that the day was a Jewish holiday; that on that day the defendant Lipschitz came to defendant’s house about 8:30 in the morning and they together went to the Jewish church on Fifteenth and Wash streets and attended the services there, remaining there until noon; that they both accepted an invitation to dinner with a mutual friend, to whose house they went and remained until two o’clock; that no one came to the defendant’s house that morning inquiring for him as testified by Flannery, and that the time embraced by the evidence of alibi covered the time when Flannery and the others claimed to have had the transaction with the defendant and Lipschitz. The defendant testified in his own behalf that on March 30, 1907, he spent the forenoon at the Jewish church and. went at once from there to his friend’s house to dinner where he remained until two o ’clock; denied positively ever having any transaction with Flannery or having bought anything at any time from him; that he saw Flannery for the first time when confronted with him at the police office some time after the alleged transaction and the second time in jail after defendant was confined on this charge. The testimony of the defendant as to the alibi and denying the alleged transaction with Flannery was corroborated by the testimony of his codefendant Lipschitz and defendant’s wife.

While defendant was a witness he offered to show that the only horse transaction he and his codefendant had during the month of March, 1907, was on the 13th of that month, some three weeks before the alleged offense, when they purchased a horse and received a bill of sale therefor; he also offered to prove that Red King, the man alluded to by Flannery in the jail and to whom Flannery admitted he first accused defendant, was in jail on the charge of having burglarized defendant’s stable and stealing defendant’s horse; all of which testimony was excluded by the court upon objection by the State. At the close of all of the evidence defendant renewed his motion for an acquittal, which was overruled and he excepted.

It appears from the record that the court read to the jury an instruction as to the testimony of accomplices, which instruction is not set out, but said after-wards to the jury, “I think, gentlemen of the jury, I had better withdraw that instruction number four, which I read to you in regard to the testimony of accomplices; my.attention has been directed to the fact that the instruction is probably incorrect and you will not regard that instruction, which I gave you in regard to the special caution with which the testimony of an accomplice should be received,” and thereupon the said instruction was eliminated from the charge. The defendant then offered an instruction on that point, which was refused upon objection by the State.

I. Before proceeding to the consideration of the errors assigned by the defendant, it is essential to pass upon the proposition advanced by the Attorney-General that the record does not disclose that the motion for new trial was filed within four days after the verdict. This is based upon the recital in the record that “thereupon the said defendants by their attorney filed their motion for new trial herein,” and it is insisted that this is too indefinite to satisfy the requirements of the statute; that a motion must be filed in four days. We are of the opinion that this position is not tenable, for the reason that the record discloses that the verdict was rendered on May 9, 1907, the day of the conclusion of the trial, and on the same day the motion for new trial was filed, and the defendant was admitted to bail to appear from day to day in answer to his motion for new trial and in arrest of judgment.

II. The principal ground upon which a reversal is sought in this case is that there was an absolute failure of proof of the stealing and the receiving of the articles charged in the information to have been stolen and received. The information specifically described the property stolen from the Standard Smelting Company and afterwards received by the defendant as ‘ ‘ ten bars new copper metal. ’ ’ And it is earnestly insisted that there was no evidence whatever that any new copper metal was stolen from said company on or before the 29th or 30th of March, nor that the defendant received any new copper metal at or about that time. The evidence of Mr. Hess, one of the owners of the Standard Smelting Company, was that eleven ingots of brass were stolen from his company on the 29th or 30th of March, 1907, and that the company had no copper ingots on hand at that time, but the evidence of Flannery and Tross and O’Brien was to the effect that they had stolen ten bars of copper from the premises of the Standard Smelting Company about ten o’clock of the night of the 29th of March, 1907, and hid the same in some ash pile, nest morning sold the same to the defendant, and their evidence clearly tended to show that these copper bars thus stolen by them were known by the defendant to have been stolen by them at the time he bought and received the same from them. If the State was estopped by the testimony of Mr. Hess that the metal was brass and not copper as alleged in the information, the contention of the defendant would be unanswerable, but there was ample other evidence, if believed by the jury, to establish that the bars of metal were of copper and not brass and the court properly overruled the request for an instruction of acquittal. It is true a party is not permitted to impeach his own witness, directly by evidence of bad character for truth °and veracity or indirectly by evidence of his having made statements out of court contrary to those made by him on the witness stand, but in this State at least he is not estopped by the testimony of the witness and is not bound by it, so as to be precluded from disproving it by the testimony of other witnesses. [Brown v. Wood, 19 Mo. 475; Dunn v. Dunnaker, 87 Mo. 597; Meyer Bros. Drug Co. v. McMahan, 50 Mo. App. 18, and cases cited.]

The jury might have concluded that Mr. Hess might have been mistaken as to the company not havr ing any copper bars on hand at the time of the theft in view of the very clear statement of Flannery, Tross and O’Brien that they did steal copper bars and sell them to defendants. This conclusion in no sense militates against our decision in State v. Plant, 209' Mo. 307.

III. There was no error in excluding the bill of sale, evidencing the horse trade on the 13th of March, 1907. Flannery’s evidence as to the horse trade was immaterial and defendant and Lipschitz and Dierkes all testified to the horse transaction on the 13th of March. There was no controversy about the sale. It was irrelevant to the issue and the proof that they bought a horse from Dierkes on the 13th, did not disprove Flannery’s evidence as to the horse trade on the 30th of March. The impeaching or contradictory evidence should have been directed to the truth of Flannery’s statement as to the occurrence on the 30th of March. But the bill of sale has not been preserved and we cannot judge of its materiality. [State v. Foister, 202 Mo. 1. c. 48.]

IY. As to the rejection of defendant’s answer to the question, “What, if anything, happened with respect to you and Red King?” no offer was made as to what the testimony would be and it is settled that a judgment will not be reversed on such a showing alone. [Jackson v. Hardin, 83 Mo. 1. c. 187.]

Y. There was likewise no error in withdrawing the instruction cautioning the jury against the testimony of accomplices. The receiver of stolen goods knowing them to be stolen, is guilty of an offense separate and distinct from the larceny of the goods. And the offenders are not accomplices in the meaning of 'the law. [State v. Kauhlman, 152 Mo. 104.]

YI. The second instruction given by the court was in these words: “If you believe and find from all the evidence before you, beyond a reasonable doubt, that the property described in the information, to-wit, ten bars of new copper metal or ten bars of metal of the description mentioned in the evidence, was unlawfully and fraudulently stolen from the possession of the Standard Smelting Company by some person or persons other than the defendants, with the intent on the part of the person or persons so stealing such property to unlawfully and fraudulently convert the same to his or their own use, and to permanently deprive the said Standard Smelting Company of the use of said property, without its consent; that said property was the property of the Standard Smelting Company; that said Standard Smelting Company was then and there a corporation; that after the said property was so stolen as aforesaid, by some person or persons other than the defendants, they the said Harry Lipschitz and Max Shapiro, at the city of St. Louis and State of Missouri, and on or about the 30th day of March, A. D. 1907, did unlawfully and fraudulently buy, receive and have into their possession the said property, knowing at the time they so bought, received and had said property that it was stolen from the Standard Smelting Company, that they so bought, received and had said property for the fraudulent purpose of aiding the thief or thieves of said property or with the fraudulent intent of permanently depriving the Standard Smelting Company of its said property without its consent; that the property so bought, received and had by the defendants (if you believe and find from the evidence that they did so buy, receive and have the same) was of the value of thirty dollars or more, you should find the defendants guilty of receiving stolen property, knowing it to be stolen, as charged in the information, and, unless you so believe and find the facts to be you should find the defendants not guilty.” To the giving of which instruction defendants at the time objected and excepted.

This presents the most serious proposition in the record. Had there been no difference as to the character of the property alleged to have been stolen, and knowingly received by defendants, there would have been no doubt as to the propriety of this instruction, but in view of the testimony of Hess that the bars of metal were brass and that his company had no copper bars on hand at the time of the theft and the evidence of Flannery and Tross that the metal bars were copper, the language of the instruction, directing the jury that if they believed that the property described in the information, to-wit, ten bars of new copper metal, or ten bars of metal of the description mentioned in the evidence, was stolen and that defendants did unlawfully and fraudulently buy and receive and have in their possession the said property, knowing at the time that it had been stolen, etc., they would find them guilty, authorized the jury to find them guilty if they found that the bars of metal stolen and received were either copper as charged in the information or were brass as testified to by Mr. Hess in his testimony. In other words, the guilt of defendants was predicated upon one of either alternatives, to-wit, in the first instance, if they found that copper bars were stolen and received, and in the other if they found bars of metal mentioned in the evidence. Not only were brass bars mentioned in the evidence, but Mr. Hess testified the bars of metal stolen from Ids company that night were brass and they had no copper at that time. The instruction in a word permitted the jury to find defendants guilty even though they should find that property not described in the information was stolen and with the receiving of which they were neither charged or notified in the information.

It is true that in another instruction the court directed the jury that the defendants were on trial for buying and receiving, knowing them to be stolen, ten bars of new copper metal, on or about March 30, 1907, and upon no other charge of receiving stolen property, and the Attorney-G-eneral insists that in view of this instruction, the jury could not have been misled. But when this instruction is read its obvious purpose was to confine the jury to the transaction of March 30, 1907, and prevent them from finding defendants guilty on proof of the previous thefts and receipt of stolen goods before that time. It did not purport to change the direction of the court that the finding of the theft of either the copper bars described in the information or others mentioned in the evidence, on March 30, 1907, would justify a verdict of guilty. The Constitution of this State, section 22, article 2, provides that “in criminal prosecutions the accused shall have the right ... to demand the nature and cause of the accusation” against him. He cannot he charged with stealing horses and convicted on proof that he stole hogs. Neither can he he charged with stealing copper and convicted on proof of stealing brass. Nor does the fact that copper is one of the constituents of brass change the ease. When the copper is mixed with lead, zinc and tin, the result is brass and no longer copper, and they are regarded and known as separate and distinct metals in trade, and in the arts and sciences. The description of the metal bars as “new copper metal” cannot be treated as surplusage but must have been proved substantially as alleged. [Wharton’s Crim. Ev., sec. 146; State v. Ballard, 104 Mo. 634; State v. McGraw, 74 Mo. 574; State v. Babb, 76 Mo. 501.]

While our Statute of Jeofails cures many defects in evidence, it does not permit the State to charge a defendant with stealing specific articles of property of one kind and convict him of stealing other and distinct property. If it did it would be a clear violation of the constitutional provisions above noted. In our opinion the instruction was erroneous and misleading and authorized the jury to find defendant guilty if he bought and received either ten bars of new copper metal or ten bars of brass, mentioned in the evidence of Mr. Hess, the owner of the stolen property which defendant was charged with receiving knowing it to be stolen. The instruction should have been confined to the copper bars and the jury should not have been left to find him guilty if they believed he had purchased and received the ten bars of brass from Flannery, knowing them to be stolen, which we think the instruction permitted, and which the evidence of Hess tended to prove he did do. For the giving of this instruction the judgment must be and is reversed in order that a new trial may be had.

All concur.


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    THE STATE v. DON BROWN, alias JAMES JONES, Appellant.
    Division Two,
    February 2, 1909.
    NO BILL OF EXCEPTIONS: Defective Transcript. A transcript filed in the appellate court, in which matters of record proper and evidence are commingled, having at its close the clerk’s certificate that defendant comes into court in vacation arid files bill of exceptions in this cause, which is signed and sealed by the trial judge, but not showing that the bill of exceptions is embraced within the record, does not authorize the court to review the evidence, instructions or exceptions, or anything except the record proper, for it fails to show any authenticated bill of exceptions; and there being no error in the record proper, the verdict, assessing defendant’s punishment at five years in the penitentiary for forgery, will not be disturbed.
    Appeal from Jasper Circuit Court. — Hoto. Hugh Dabbs, Judge.
    Affirmed.

      Herbert S. Hadley, Attorney-General, and F. G. Ferris, Assistant Attorney-General, for the State.
    There is no bill of exceptions in this case, and hence no matter of exception can be considered on this appeal. There is a certain transcript bearing the certificate of the clerk of the circuit court of Jasper county on file with the clerk of this court, but the matters embraced within said transcript, while apparently matters of record and matters of exception, are thrown together in chronological order, without reference to their character. We are thus left to conjecture as to what things are to be regarded as record proper and what as exception. While we find matters of exception, we find no evidence of a bill of exceptions. No part of said transcript is designated as a bill of exceptions, and no part thereof purports to bear the authenticating signature of the judge of the court before whom tbe case was tried. The only reference we find tó tbe signing of a bill of exceptions in this case is found in a vacation entry by tbe clerk, to tbe effect that a bill of exceptions was filed, “which is duly signed and sealed by the. Hon. Hugh Dabbs, Judge.” (a) The bill of exceptions must be positively and plainly authenticated at each end, or it will not be considered. Its place of beginning is not to be determined by conjecture. Reno v. Fitz Jarrell, 163 Mo. 411; State v. Baty, 166 Mo. 561; State v. Weinegard, 168 Mo, 490'; Clay v. Union Company, 200 Mo. 665. (b) Where the purported bill of exceptions is not signed by the judge who tried the case, there is nothing before the appellate court but "the record proper, and if that is free from error, the judgment will be affirmed. State v. Collins, 196 Mo. 87; State v. Thompson, 149 Mo. 439; State v. Wilhoit, 142 Mo-. 619.
   FOX, J.

This cause is here by appeal on the part of the defendant from a judgment of the circuit court of Jasper county, Missouri, convicting Mm of forgery, and assessing his punishment at five years’ imprisonment in the State penitentiary.

• On the 24th day of September, 1907, the prosecuting attorney of Jasper county filed in the office of the clerk of the circuit court of said county an information, duly verified, in two counts. The first count charged that the defendant at said county forged a check, purporting to have been made by a fictitious firm, on the Miners Bank of Joplin, for $14.85; the second count charged that defendant at said time and place feloniously did pass, sell, utter and publish as true said cheek. On the 12th day of October, 1907, defendant was duly arraigned and pleaded not guilty to said information. On the 7th day of November, 1907, and at the same term of said court, the prosecuting attorney, by leave of court, filed an amended information, duly verified, in two counts. The first count charged defendant with forging a check for $18.75, purporting to have been made by a fictitious firm, Paoma Mine, by Charles Strong, superintendent, on Miners Bank of Joplin, and in favor of John Smith or bearer, and the second count charged him with having passed, uttered and published such check as true. On the same day defendant filed his motion to quash said amended information, which was overruled. Defendant was- thereupon duly arraigned upon said amended information and pleaded not guilty thereto. The prosecuting attorney thereupon entered a nolle prosequi as to the second count of the information. The defendant was then put upon his trial, which resulted in the jury finding a verdict of guilty and assessing his punishment as heretofore indicated. Timely motions for new trial and in arrest of judgment were filed and by the court overruled. Judgment and sentence were entered of record in accordance with the verdict returned, and from this judgment the defendant prosecuted this appeal.

At the very threshold of the .consideration of this cause we find that the record fails to disclose any authenticated bill of exceptions by which the objections and exceptions to the action of the court during the progress of the trial were preserved. There is an entire absence in this record of a bill of exceptions purporting to have been duly signed and sealed by the trial judge. While it does appear that there is a transcript on file in which matters of record propef and evidence are all mingled together, and at the close the clerk certifies that the defendant -comes in vacation and files herein his bill of exceptions in this cause, which is duly signed and sealed by the Hon. Hugh Dabbs, Judge, there is absolutely nothing which shows that a bill of exceptions is embraced within this record, and this statement by the clerk is insufficient to autborize this court to review anything except the record proper.

It has been uniformly ruled by this court that the bill of exceptions must be positively and plainly authenticated, and embraced within the record sent to this court. This ruling has been so frequently made that there is no necessity for citing cases in which the rule has been announced.

The first count of the amended information upon which the judgment in this case is predicated, is in proper form, charging every essential element of the offense, and informations in' similar form have been expressly approved by this court. [State v. Yerger, 86 Mo. 33.]

The jury were duly empaneled and sworn to try the case; the verdict and judgment are in accord with the provisions of the statute, and the record seems to be regular in every particular; hence the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


text:
    THE STATE v. JESSE B. WEBB, Appellant.
    Division Two,
    February 2, 1909.
    • 1. CONSPIRACY: Suicide. Under the statute (Sec. 1822, R. S. 1899) a person deliberately assisting another in the commission of self-murder, is guilty of manslaughter in the first degree.
    2. -: -: Withdrawal. Two or more persons may conspire to commit a criminal act, yet there is always a place of repentance, a locus penitentiae, and before the act is done, whether it be suicide or other homicide, either may withdraw and avoid the criminality of the criminal act.
    3. -: -: -: Instruction: Withdrawal of Deceased. An instruction which tells the jury that if deceased committed suicide, and defendant counseled, advised and assisted her to do so, yet before the act was committed changed his mind and endeavored to dissuade her from such purpose, then the mere fact that he did change his mind and endeavored to dissuade her will not excuse him, unless she led him to believe in good faith that she had abandoned such purpose and then after-wards killed herself of her own volition and not under his influence, is erroneous. It makes his withdrawal from the common design or conspiracy dependent upon her withdrawal.
    4. -: -: -: -: -: Burden. Said instruction is also erroneous in that it went further and charged that "if defendant did counsel, advise and assist his wife to commit suicide, and she afterwards killed herself, the burden is on defendant to show that such killing was done of her own volition and not under the influence of his advice, counsel or assistance.” It violates the rule that in criminal prosecutions the burden is on the State to establish the guilt of the defendant and not upon the defendant to prove his innocence.
    5. -: -: -: Proper Instruction. The court should have given this instruction asked by defendant: “If the jury believe from the evidence that the defendant procured a pistol with which he and the deceased intended to commit suicide and afterwards changed his mind and tried to escape from the consequences of such an agreement but deceased refused to permit him to escape therefrom and on account of physical weakness he could not by force leave her, and that she did the shooting, then defendant did not deliberately assist her to commit self-murder and is not guilty of manslaughter in the first degree.” The instruction, under the circumstances of the case, properly presented to the jury the facts which constituted defendant’s withdrawal from the suicide agreement.
    6. CONFESSION: Unusual Circumstances. As the result of an attempt by defendant and his wife to commit suicide, she was shot in the head and heart, and he received a severe wound near the heart, and lost much blood and was greatly weakened when he made his statement to the coroner, who reduced it to writing and defendant signed it by mark. He ordinarily could write his name. He denied that he had made the statement and testified that he had no remembrance of it. Held, that the ordinary instruction in regard to the presumption arising against the defendant from statements made against himself, should not, under the circumstances, have been given, but should have been qualified by requiring the jury to find that defendant was in such condition of mind and body as to be able to know the answers he was making, and to understand the questions propounded to him, and that the same were read over to him and that he understood the statements contained therein.

      Appeal from Clay Circuit Court. — Son. Francis S. Trimble, Judge.
    Reversed and remanded.

      Ben A. Reed, W. J. Courtney and Martin E. Lawson for appellant.
    (1) Instruction 5, given for the State, is wrong. It places the burden of proof on defendant to show that Inez Walkup killed herself of her own volition and not under the influence of his advice, counsel or assistance. It was the duty of the State to prove •beyond a reasonable doubt that defendant was deliberately. present assisting, counseling and advising her to commit suicide. The burden does not shift to defendant. State v. Wingo, 66 Mo. 181; State v. Hickam, 95 Mo. 322; State v. Hardelein, 169 Mo. 579; Tobacco Co. v. United States, 77 U. S. 266; State v. Thornton, 41 L. R. A. 530; State v. Schweitzer, 57 Conn. 532; Phillips v. State, 8 Am. St. Rep. 471; Tiffany v. Com., 121 Pa. St. 165; 2 Bishop ’s New Criminal Procedure (4 Ed.), secs. 599, 600; 1 lb., sec. 1049. (2) Instruction 11 is ordinarily a correct statement of the law. In this case it was a great injustice because a man weakened by consumption, shot near the heart, burning with fever, having lain in a room in that condition all day with a morbid crowd passing in and out, was called upon to make a statement to be couched in. language employed by an official eager to convict some one, and so ignorant he misspelled many words, both medical names and common words, and evidently unable to put the meaning of defendant into language capable of conveying anything like the same meaning, and yet who wrote, read and signed the statement. Under these conditions, the court says in instruction 11, “what the proof may show you that the defendant has said against himself, if anything, the law presumes to be true, because against himself. ’ ’ The law is not a farce — that is not the law. Defendant has no recollection of the statement, and denies it. The jury should have been required to find that defendant was in such condition of mind and body as to be able to know what answers he was making and to have fully understood the queries, and to have found that this doctor really wrote the substance of what he asked and was told, and that he really read the statement to defendant who at the time was in condition to understand it and did understand it. 2 Bishop’s New Criminal Procedure (A Ed.), sec. 604. ,(3) Instruction A, asked by defendant, should have been given. If defendant did reconsider his purpose to die with Inez Walkup and did try to secure her agreement not to commit said act, and if he was not fully satisfied that she had abandoned her idea of suicide and yet permitted a loaded pistol to be within her reach, and if he was physically able to put it beyond her reach then he was culpably negligent. R. S. 3899, sec. 1834. (4) Instruction B, refused, should have been given. No conviction can result unless every material element of the crime is proven beyond a reasonable doubt. The State’s instruction sets out the material facts necessary for conviction. The jury should be told that unless all such material facts are proven they cannot convict. Com. v. McKie, 61 Am. Dec. 410; 1 Bishop’s New Criminal Procedure (4 Ed.), sec. 1049.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    Instruction 5 should be considered in- the light of the proof in this cause. Appellant testified as a witness in his own behalf, and admitted that he and deceased entered into a contract, agreement and conspiracy to commit suicide; that they came to Smi'thville for that sole purpose; that they had made two ineffectual attempts just prior to the fatal day; that appellant bought the pistol late on the afternoon previous to the morning of the tragedy, and even after he had ’phoned the second time for his friend, Reed, to come and take him away. The proof shows that appellant was able to walk to the store where he purchased the revolver, a distance of one hundred yards or more, from the hotel, and the further fact that appellant was shot himself, are all strong earmarks showing that the contract and conspiracy to commit suicide were being- carried out as agreed upon. The law is well settled in this State that the act of one conspirator in a common design is the act of all conspirators connected therewith, whether present or absent. It has been a crime to aid, counsel or assist another to commit suicide, even as far back as the case of Rex v. Tyson, Russ. & Ry. C. C. 523 (a case where the husband and wife had agreed to commit suicide and went to the river for that purpose, and throwing themselves in, the wife was drowned, and the husband escaped). The mere act of advising another to commit suicide is unlawful, and if the latter acts on such advice and kills himself, the former is guilty. Com. v. Bowen, 13 Mass. 356; Com. v. Mink, 123 Mass. 422; Reg. v. Allison, 8 Car. & P. 418; Blackburn v. State, 23 Ohio St. 146; Burnett v. People, 204 Ul. 208. Our Legislature has seen fit to make the deliberate aiding of another to commit suicide manslaughter in the first degree. Sec. 1822, R. S. 1899; State v. Ludwig, 70 Mo. 412; State v. Fitzgerald, 130 Mo. 407. After appellant admits all the facts of the contract and conspiracy between himself and deceased to commit suicide, the preparation therefor, and the carrying out of this contract on the part of the deceased and the ugly wound received by appellant, as he states, then appellant cpmes into court and says that he withdrew from the contract and conspiracy to commit suicide on the evening before, and that deceased consented to such withdrawal.
   GANTT, P. J.

The defendant has appealed to this court from the conviction of manslaughter in the first degree, at the November term, 1907, of the circuit court of Clay county.

The prosecution was begun on November 7, 1906, by the prosecuting attorney of Clay county filing an information in the circuit court, duly verified, wherein he charged the defendant with having on the 11th day of October, 1906, feloniously, deliberately, premeditatedly, on purpose and of his malice aforethought shot and killed one Inez Webb. He was duly arraigned and entered his plea of not guilty and the cause as above stated was tried at the November term, 1907.

The evidence tended to show that at the Peddicord Hotel in Smithville, Clay county, on the morning of the 11th day of October, 1906, the defendant Jesse Webb and Inez Webb or Walkup were both shot. Defendant received a pistol bullet near the heart and the deceased received three bullet wounds near the heart and one through the head. She died immediately. Prior to the shooting for some months both the defendant and the deceased worked at the State Hospital for the Insane at St. Joseph, Missouri. They had associated together for some time and the evidence tended to show that he was a consumptive. He quit work at the Hospital October 1, 1906, and she quit work some two days later. They were both employed at the Hospital as day nurses. He had been employed at the Hospital about two years, and she had been employed there from seven to twelve months. They had been associated together for about two months. Dr. Woodson, the Superintendent of the Hospital, testified that Webb was run down and not strong and he had prescribed malt and cod liver oil for him. After leaving the Hospital, defendant went down into the city of St. Joseph to live, and deceased followed him and they remained together, holding themselves ont as man and wife. After remaining a few days in St. Joseph, they went to Plattsbnrg to visit his relatives, where they remained a few days. "While there he was very sick. They left Plattsburg, saying they were going to Hot Spring’s, Arkansas, for his health, and started, bnt went to Smithville where they remained several days. At Plattsbnrg the deceased said that when the defendant died she wanted to die too. The defendant in his testimony stated that she suggested that they commit suicide, but he refused. After reaching Smithville, however, they agreed to commit suicide together, and wrote letters to their relatives indicative of their intention so to do. The deceased bought morphine, which they both took on Monday night, but they waked up about one o’clock on Tuesday. The deceased then said she would get some strychnine. She got it and they took it Tuesday nig’ht. The strychnine did not kill them and they waked up about ten or eleven o’clock Wednesday morning. The defendant then got.the deceased to telephone to a Mr. James Reed at, Trimble, Missouri, to come to him at Smith-ville, and Reed in response arrived at Smithville that evening at five or six o’clock. Prior to Reed’s arrival at Smithville, however, defendant purchased a revolver from a Mr. Dougherty, who was a clerk in a hardware store, and who loaded the revolver for him. When Reed arrived at Smithville, the deceased and the defendant were in bed. She represented herself as Mrs. Webb, and Reed sat down on the edge of the bed and the defendant requested him to take defendant to Edgerton to his brother Louis Webb. Reed started to get defendant’s clothes for him, but the deceased got between Reed and the clothes and told him that defendant was not going away from there; if he did, she would follow him and kill him. Reed then left them and told them he would be back in the morning, but before he reached the hotel the next morning both of them had been shot. Reed testified that the defendant was awfully weak and was spitting blood, and he could scarcely hear him talk. The defendant testified that the evening before the shooting he abandoned his purpose to destroy himself. And after Reed left the hotel that evening, he had a long talk with the deceased, endeavoring to persuade her to give up the idea of suicide, and he thought she had given it up, and they then agreed to take the pistol back to the store in the morning and get back what money they ctmld; that the pistol was then put under the pillow until morning and they went to sleep. He was awakened the next morning by something against his breast. As he opened his eyes, she said, “Here is where we die,” and shot him. He testified that he knew no more until he heard the parties breaking into the room. The shooting occurred about 8:30' Friday morning. When the people broke into the room they found the deceased dead and the defendant in a spasm. One of the witnesses testified that before they broke in the door he heard the man saying “Shoot me again.” The other witness heard this statement, but he thought it was immediately after he got into the room. Defendant testified that he did not know in which hand the deceased held the revolver, that he had no recollection of her shooting herself.

The statement of the defendant was offered in evidence, which had been taken by the coroner, but the defendant testified that he had no remembrance of making any statement whatever. The statement was signed before the coroner by defendant’s mark. In this statement the defendant said his wife did the shooting and as soon as she shot him she lay down on the bed and shot herself two or three times. She put her arms around his neck and said, “Oh, Jess, are you dead?” She said this, however, before she shot herself. He also stated that they were married a week before at Topeka, Kansas, and then went to St. Joseph and Plattsburg and then came to Smithville; that he had a hemorrhage from his lungs, which caused him to get off at Smithville. They had started to Hot Springs. His reason for wanting to die was that he had tuberculosis and did not think he could live long any way, and she said her reason for dying was because she loved him and did not want to live without him. He also- testified that his wife wrote a letter to her father and one to a Mrs. Hart. And he wrote one to his sister and mother, and they left a note requesting the landlady to mail the letters and notify his brother.

The court instructed the jury on murder in the first degree and on manslaughter in the first degree. As the jury found the defendant guilty of manslaughter only, the charge of murder is eliminated from the case. The fifth instruction is in the following words:

“If the jury believe from the evidence that deceased committed suicide and that defendant counseled, advised and assisted deceased to do so, then, even though defendant may have changed his mind before the act was committed and endeavored to dissuade her from such purpose, then the mere fact that defendant did change his mind and endeavor to dissuade her will not excuse defendant from such counsel, advice and assistance, if any, unless you believe that deceased led defendant to believe in good faith that she had abandoned such idea, and then afterwards killed herself of her own volition, and not under the influence of his counsel, advice and assistance, if any, to do so. And if he did counsel, advise and assist her to commit suicide and she afterwards killed herself, the burden is on defendant to show that such killing was done of her own volition and not under the influence of his advice, counsel or assistance, if any.”

The questions presented for our consideration relate entirely the correctness of the instructions given and refused.

I. Under the common law, if one counseled another to commit suicide and the other, by reason of the encouragement and advice, killed himself, the adviser was guilty of murder as an aider and abettor, provided he was present when his advice was carried out. It was ruled in Rex v. Tyson, Russ. & Ry. 523, that if two persons mutually agree to die together and, in pursuance of the agreement, each attempts to kill himself, but the means employed to produce death takes effect on only one, the survivor is guilty of murder. But under the statute of this State, section 1822, Revised Statutes 1899, “Every person deliberately assisting another in the commission of self-murder shall be deemed guilty of manslaughter in the first degree.” The crucial point in the case is as to the correctness of instruction number five as above set out in the statement of the cause. It will be noted that this instruction required the jury to find, first, that the deceased committed suicide, and, second, that the defendant counseled, advised and assisted her to do so. And then directed the jury that even though the defendant changed his mind before the criminal act was committed and endeavored to dissuade her from such purpose, then the fact that he did change his mind and endeavor to dissuade her will not excuse him from such counsel, advice and assistance, unless the jury believe that the deceased led the defendant to believe in good faith that she had abandoned such idea, and then afterwards killed herself of her own volition, and not under the influence of his counsel, advice and assistance, if any, to do so. The diligence of counsel has not availed to find a precedent for this instruction, and we have been unable to find any, and accordingly the correctness of this instruction must be determined upon reason and the analogies of the law.

In effect we take it that this prosecution is based upon the theory of a conspiracy between the defendant and the deceased that each should commit suicide and the instruction directs the jury in effect that although the defendant withdrew from the conspiracy before the suicide was committed by deceased and although he endeavored to dissuade her from her purpose to kill herself, these facts did not excuse the defendant from his previous agreement and advice to commit suicide, unless the deceased led the defendant to believe that she also had abandoned such idea, and then killed herself of her own volition. It is a general principle of the criminal law that although several parties conspire to do a criminal act, there is a place of repentance, a locus peniteniiae, so that before the act is done, either one or all of the parties may abandon their design and thus avoid committing the criminal act. [U. S. v. Britton, 108 U. S. 1. c. 205.] This principle is familiar in the law of homicide'. Thus it is said: “Though a man should be in the wrong in the first instance, yet a ‘space for repentance is always open, and where a combatant in good faith withdraws as far as he can, really intending to abandon the conflict, ’ and his adversary still pursues him, then, if taldng life becomes necessary to save his own, he will be justified.” [State v. Partlow, 90 Mo. 1. c. 627; 1 Bishop’s Criminal Law (5 Ed.), sec. 871; Horrigan and Thompson on Self-Defense, 227; 4 Blackstone’s Com., 184.] The instruction seems to concede this principle of. permitting the defendant to abandon his previous intention of committing suicide, and agreeing that the deceased should also do so at the same time, but this right is made dependent upon the fact that the deceased also abandoned her purpose to commit suicide and led the defendant to believe in good faith that she had done so. It seems to us that this qualification of the right is not reasonable or based upon a sound principle. If there is anything in the doctrine of a space for repentance, it seems to us when the defendant abandoned his purpose of committing suicide and endeavored to persuade the deceased to also abandon it, that he had done all that the law could exact of him. If in spite of his announced intention to refuse to go further in the criminal purpose and his persuasion and advice to also abandon such a purpose, the deceased proceeded to Mil herself, then it was her own act, and one for which the defendant cannot and ought not in any way, in our opinion, be held responsible, and under the circum.stances he could not properly be convicted of deliberately assisting her in the commission of self-murder.

• But the instruction is, in our opinion, also bad in that it places the burden on the defendant to show that the suicide of the deceased was committed of her own volition and not under the influence of defendant’s advice and counsel. We think this instruction violates the rule that in a criminal prosecution the burden is upon the State to establish the guilt of the defendant and not upon the defendant to prove his innocence. [State v. Hickam, 95 Mo. 1. c. 329; State v. Hardelein, 169 Mo. 579.]

In the last-cited case it is said: “Where a defendant pleads not guilty and admits nothing against himself, as in the case at bar, the burden of proof is on the State to first make out a case against him which would entitle it to go to the jury, but this does not change the burden of proof, which remains with the State throughout the trial, and whether or not the evidence is sufficient to overcome the presumption of innocence of defendant, and to establish his guilt beyond a reasonable doubt, when all of the evidence on both sides, including the presumptions, is considered, is for the consideration of the jury. [1 Bishop’s New Crim. Proc. (4 Ed.), sec. 1050; State v. Darrah, 152 Mo. 522.]”

Our best judgment is that upon both of these grounds this instruction was erroneous and should not have been given in this form. It denied the defendant the right to repent of his ill-considered promise to commit suicide with the deceased, and erroneously placed the burden upon him of proving his innocence instead of requiring the State to prove his guilt beyond a reasonable doubt.

II. Error is also assigned upon the refusal of the court to give instructions A, B, C and D requested by the defendant.

Instruction I) is in these words: “If the jury believe from the evidence that the defendant procured a pistol with which he and the deceased intended to commit suicide and afterwards changed his mind and tried to escape from the consequences of such an agreement but deceased refused to permit him to escape therefrom and on account of physical weakness he could not by force leave her, and that she did the shooting, then defendant did not deliberately assist her to commit self-murder and is not guilty of manslaughter in the first degree.” This instruction contains the substance of instruction C requested, and announces the opposite of the instruction five given by the court, which we have just held erroneous. In our opinion this instruction D was a proper one, and should have been given, and instruction numbered 5 given by the court should have been refused. We think there is no error in refusing instruction B requested by the defendant as the court had fully covered that proposition in its own instructions, and the same can be said as to instruction A.

III. Counsel complains also of instruction numbered 11 given by the court, which is the ordinary instraction in regard to the presumption arising against the defendant from statements made against himself. Counsel concede that this instruction is ordinarily a correct one, but that it should not have been given in the peculiar circumstances of this case, because the alleged statement made by the defendant to the coroner was made, if at all, when the defendant was in a very critical condition, suffering from a pistol-shot wound near the heart and weakened by disease, and was too weak to sign his name, and that the instrument itself indicates that the writer of it himself was incapable of correctly taking the statement as indicated by the misspelled words both medical and common. There is much force in this objection. The evidence shows that the defendant could write his own name and yet he did not sign this statement himself and it was signed by the coroner and attested only By the mark of the defendant. The defendant testified that he had no recollection whatever of ever having made the statement and denies making it. We think that under the circumstances of the case, if this instruction should have been given at all, a qualification should have been added thereto requiring the jury to find that the defendant was in such a condition of mind and body as to have been able to have known the answers he was making, and to fully understand the questions propounded to him by the coroner and that the same was read over to him and that he understood the statements contained in it. While the instruction numbered 11 has often received the approval of this court, it has often been assailed as a comment on the testimony. This court has often ruled that while an instruction may be correct in the abstract it should always be applicable to the facts in evidence, and we think that the qualification suggested by counsel under the peculiar facts of this ■ case is one that should have been given along with the instruction, if given at all.

For the error in giving instruction numbered five and the refusal of instruction D, the judgment should be and is reversed, and the cause remanded for a new trial in accordance with the views herein expressed.

All of this division concur.


text:
    THE STATE v. JAY HARRIS, Appellant.
    Division Two,
    February 2, 1909.
    MOTION FOR NEW TRIAL: No Exception. If the record fails to show an exception was saved to the overruling of appellant’s motion for a new trial, none of the grounds assigned by said motion is for review on appeal.
    Appeal from New Madrid Circuit Court. — Hon. Henry C. Riley, Judge.
    Affirmed.

      Ward é Collins for appellant.

      Herbert 8. Hadley, Attorney-General, for the State; James T. Blair of counsel.
    (1) The information is unobjectionable. State v. Neal, 178 Mo. 69; State v. Payne, 194 Mo. 451. (2) There is no bill of exceptions in the case. No record entry showing the filing and no “certificate on the bill itself” appears in the transcript. Without one or both of these the bill is a nullity. A mere recitation by the clerk in the transcript that the bill was filed is not sufficient. Wilson v. Railroad, 167 Mo. 324; State v. Walker, 194 Mo. 375; Ferguson v. Thacher, 79 Mo. 514; State ex rel. v. Chaney, 49 Mo. App. 515; Williams v. Williams, 26 Mo. App. 410; R. S. 1899, sec. 2640. (3) Further, even could it be conceded that a bill of exceptions was filed, yet as no objection was made or exception saved to the court’s action in overruling the motion for new trial, no matters of exceptions are here for review. The question of the sufficiency of the evidence is not before this court. State v. Irwin, 171 Mo. 559; Phillips v. Jones, 176 Mo. 329; State v. Libby, 203 Mo. 598; State v. Parnell, 206 Mo. 725; State v. Harvey, 105 Mo. 317.
   FOX, J.

This cause is brought to this court by appeal on the part of the defendant from a judgment of the New Madrid Circuit Court, convicting him of an assault with intent to commit rape.

At the very inception of the consideration of this cause we find by an examination of the record that it fails to disclose any objections or exceptions to the action of the court in overruling defendant’s motion for a new trial. Under this State of the record appellant has failed to preserve such exceptions to the action of the court in overruling his motion for new trial as would authorize this court to review the complaints embraced in such motion, hence there is nothing before us for consideration except the record proper.

It has been uniformly held by this court and the proposition is well settled that the errors complained of must be brought to the attention of the trial court in a motion for new trial, and before the motion can be made any part of the record there must be proper exceptions to the action of the court, in overruling it made in due time, and the exceptions must be disclosed in the record. [State v. Noeninger, 108 Mo. 166; State v. Reed, 89 Mo. 168; State v. Mitchell, 98 Mo. 657; State v. Harvey, 105 Mo. 316.] The comparatively recent cases of State v. Irwin, 171 Mo. 558, and State v. Parnell, 206 Mo. 723, unqualifiedly approve the rule as herein indicated, announced in the earlier cases.

Directing our attention to the record proper, an examination of the information upon which this judgment is predicated discloses that it is in due form, such as has often met the approval of this court. The jury were regularly impaneled and sworn and the verdict returned by them and the judgment based upon such verdict seem to be in perfect accord with the law treating of this subject.

Upon the state of the record now before us in this cause the judgment of the trial court should be affirmed, and it is so ordered.

All concur.