text:
    THE STATE v. JESSE WEAGLEY.
    Division Two,
    March 7, 1921.
    1. INSTRUCTION: Murder in First Degree: Instruction for Second Degree. The giving of an instruction authorizing a conviction of murder in the second degree when the evidence conclusively shows that the crime was murder in the first degree, is not error —-the reason being, first, the express authority of the statute, and, second, an instruction for the lower degree of the offense being more favorable than otherwise to defendant he is not harmed thereby.

      2. EVIDENCE: Held. Under Information: Facts Before Grand Jury. In tlie trial upon an indictment, the statute (Sec. 3870, R. S. 1919) does not make admissible in evidence subpoenas and record entries ¿ending to show that, while defendant was being held under an information charged with the same crime for which he is being tried, his relatives and other witnesses had been brought before the grand jury and required to testify concerning the crime, and that the transcript of such testimony had been used by the prosecuting attorney at the trial. The statute does not prohibit the grand jury from secretly interrogating witnesses for a defendant against whom an information is pending; and the indictment being returned, all matters pertaining to the information thereby suspended are foreign to the case.
    3. INSTRUCTION: Insanity: Excuse Instead of Defense. The use of the word “excuse” instead of the word “defense,” in the initial clause of an instruction in which the jury are told that “insanity is intei’posed by the counsel for defendant as an excuse for the charge set forth in the indictment,” is not harmful, for both words mean justification.
    4. -: All Law Pertaining To Subject. It is elementary that all law applicable to the case under the evidence need not be given in one instruction. An instruction on insanity is not erroneous because it does not inform the jury of the weight to be given the expert testimony, if that is done in a separate instruction.
    5. -: Insanity: Test: Exercise of .Will. Where a plea of insanity is interposed, the test of mental capacity is not whether the accused was capable of exercising his will, but whether, by reason of his insanity, he was incapable of distinguishing between right and wrong at the time of the commission of the offense. The instruction should not authorize an acquittal if the evidence discloses that defendant was “incapable of exercising his will,” for those words inject technical distinctions which interfere with the wholesome administration of the criminal law.
    Appeal from Olay Circuit Court. — Hon. Frank P. Divel-biss, Judge.
    Affirmed.

      Martin E. Lawson, Andreio Graven and Jacobs & Henderson for appellant.
    (1) Under tlie testimony in this case, the defendant was guilty either of murder in the first degree or nothing. If defendant was saue at tlic time of tlio commission of the offense, he was guilty of murder in the first degree because every element of that crime was present. The court, without any testimony warranting it, gave an instruction on murder in the second degree and the defendant was convicted of murder in the second degree. This was error on the part of the court because there was no testimony warranting such an instruction, and its only result was to mislead the jury. The instructions should have been confined to the crime of murder in the first degree. State v. Pushon, 124 Mo. 457; State v. Alexander, 66 Mo. 148; State v. Mahly, 68 Mo. 315; State v. Bobbst, 269 Mo. 224., (2) The defendant offered to show the subpoenas and the grand jury records and the information showing that- the defendant had been informed upon by the prosecuting attorney, charging the defendant with murder in the first degree, and that the preliminary hearing had been had. The defendant’s relatives, his father, mother, sisters and brothers, were forcibly brought before the grand jury and there required to testify under oath, and their testimony reduced to writing, which at the time of trial, was used by counsel to cross-examine the witnesses. Such acts on the part of the prosecutor and counsel for State, were highly improper, prejudicial and in violation of the rights of the defendant and contrary to law, and more particularly of Sec. 5078, R. S. 1909, wherein it is said that after the finding and returning of an indictment by a grand jury, no prosecuting attorney or foreman or jury, or in fact, any person, shall have the right to cause any subpoena or any process to reissue for any person who is known or believed by such foreman, prosecuting attorney or jury, to be a witness in behalf of the person or persons so indicted. (3) Instruction 8 given by the court is both erroneous and prejudicial to the rights of the defendant, (a) The court opened this instruction as follows: Insanity is interposed by “counsel of defendant as an excuse for the charge.” The phraseology amounts in itself to an adverse comment upon defendant’s defense, and tlie jury conld not help but feel that the court by his words sought to discredit his defense. Instead of saying, as is invariably done in approved instructions,' that defendant, by his counsel, interposed as a defense the defense of insanity, he says that insanity is interposed by counsel of defendant as an excuse. . The court could not possibly have discovered a more prejudicial way to the defendant, of wording his instruction, (b) The instruction, in the light of the defense in this case, should have included in its description of the definition of insanity, the additional words that the defendant, due to mental' derangement, was “incapable of exercising his will.” State v. Kotovsky, 74 Mo. 248. In the case at bar, the defense includes an epileptic automatism during which the defendant moved about doing apparently logical things involuntarily. (4) Instruction 11, given by the court, is erroneous because it attempts to enumerate those things which the jury shall consider in arriving at a determination of the defendant’s sanity or insanity, but it fails to set out certain elements relating to matters tending to throw light upon the defendant’s mental condition and which were taken into consideration by medical testimony in passing upon .his mental condition, but which are ignored in the instruction. For instance, while the instruction limits the jury in passing upon the mental condition of the defendant to a consideration of his life, habits, conduct and mental capacity, it ignores and takes out of this case and away from the jury the fact that the defendant had received a violent head injury from which he was unconscious for two hours, and which 'was commented upon and taken into consideration by medical testimony in arriving at his mental condition, and which experts said might cut a tremendous figure, especially when taken into consideration with defendant’s predisposition to a nervous disorder. It also ignores and by that fact takes away from the jury, since they are specifically told things they shall consider in arriving at the mental condition of the defendant, the fact that in the summer, preceding the homicide, the defendant was overcome by heat from which he was delirious and for which he required the services of a physician. This fact was taken into consideration by the experts and because of its effect upon defendant’s nervons organism was considered in arriving at his mental condition, the experts saying that it might have a serious effect upon his mind, particularly in view of his predisposition to nervous trouble. Both these matters were testified to by lay witnesses and were a part of the hypothetical question propounded by defense to its experts.

      Franlc W. McAllister, Attorney-General, and Henry B. Hunt, Assistant Attorney-General, for respondent.
    (1) There was evidence tending to show that appellant killed deceased while angry. This evidence warranted the trial court in giving to the jury an instruction on murder in the second degree. 21 Cyc. 1067; State v. Wieners, 66 Mo. 24; State v. Marsh, 171 Mo. 528; State v. Robertson, 178 Mo. 505. (a) A verdict will not be disturbed because the evidence shows the appellant to be guilty of a higher degree of the offense than that of which he was convicted. Secs. 4903, 5115, R. S. 1909; State v. Berkley, 109 Mo. 675; State v. Frazier, 137 Mo. 340; State v. McMullin, 170 Mo. 630; State v. West, 202 Mo. 138; State v. Bobbitt, 215 Mo. 38; State v. Whitsett, 232 Mo. 522; State v. Barnes, 204 S. W. 266. (b) Having been convicted of murder in the second degree, appellant cannot complain that he was not convicted of murder in the first degree. Sec. 5115, R. S. 1909; State v. Bell, 136 Mo. 124; State v. Billings, 140 Mo. 205; State v. Todd, 194 Mo. 394; State v. West, 202 Mo. 139; State v. Sebastian, 215 Mo.. 79. (2) Instruction No. 8, on insanity, is correct in form and substance. State v. Pagels, 92 Mo. 314; State v. Schsefer, 316 Mo. 109; State v. Duestrow, 137 Mo. 69, 88; State v. Holloway, 156 Mo. 228; State v. Pauls-grove, 203 Mo. 200; State v. Porter, 213 Mo. 55. (a) Said instruction is not erroneous because it contains the following language: “Insanity is interposed by the counsel of the defendant, as an excuse for the charge set forth in the indictment.” Kelly’s Crim. Law, sec. 40; State v. Pagels, 92 Mo. 309; State v. Lewis, 136 Mo. 91;' State v. 'Holloway, 156 Mo. 230; State v. Pauls-grove, 203 Mo. 205; State v. Speyer, 207 Mo. 555. (b) Said instruction is not erroneous because it does not mention the expert testimony. Instruction No. 32 covered the question of expert testimony. Instructions must be read as a whole. State v. Crane, 202 Mo. 84; State v. Shout, 263 Mo. 375; State v. Finkelstein, 213 S. W. 468. (c) Said instruction is not erroneous because it does not include the question as to whether appellant was “incapable of exercising his will.” State v. Rose, 271 Mo. 27; State v. Pagels, 92 Mo. 317; State v. Erb, 74 Mo. 203; State v. Turlington, 102 Mo. 654; State v. Miller, 111 Mo. 551; State v. Paulsgrove, 203 Mo. 205. (3) Instruction No. 11, on insanity, is sufficient in form and substance. State v. Paulsgrove, 203 Mo. 202; State v. Duestrow, 1.37 Mo. 88. . (4) The trial court did not err in excluding from the evidence the Court records and the information first filed in this cause. Sec, 5078, R. S. 1909; State v. Faulkner, 175 Mo. 604.
   WALKER, J.

The appellant was charged by indictment in the Circuit Court of Clay County with murder in the first degree. Upon a trial he was convicted of murder in the second degree, and his punishment assessed at twenty years.’ imprisonment in the penitentiary. From this judgment he appeals.

Appellant, a young man about 24 years of age, resided with his parents on a farm in Clay County. In the same neighborhood lived a Miss Clements. She and the appellant had been sweethearts for a number of 3?ears, and until the -day of the tragedy they had been engaged to be married. On that day he received a letter from her terminating the engagement on the ground of parental opposition. His attitude and actions upon the receipt of her letter are thus graphically detailed by his counsel: “As he sat at the table after reading the letter his face was excessively pale; apparently he could not eat; his eyes had about them an unseeing look and he sat staring at the table.” He arose and went upstairs where, it was afterwards discovered, he procured a loaded pistol belonging to a farm hand; going to the barn he saddled and mounted a horse and rode away. Soon thereafter he rode into the yard at the Clements’ home and hallooed. Miss Clements and her mother were sitting by a window and, hearing his call, the former went to the door and asked if he desired to see her. In his usual manner he answered, “Yep.” He had formerly thus conducted himself and there was otherwise nothing unusual in his manner or actions. Miss Clements went upstairs, got a ring box evidently containing the ring he had given her, put on her cloak and went out to meet him. He had dismounted and was waiting for her further back in the yard. She approached him and handed him the ring box. He caught her by the wrist, put the ring box in his pocket, and drew the revolver, which she grasped and screamed for help. Mrs. Clements and another daughter, Mrs. Piles, ran to her assistance. Just before they reached the scene, appellant wrenched the pistol from Miss Clements’ grasp and shot her three times, inflicting mortal wounds. Mrs. Clements threw her arms around her daughter and attempted to lead her away. The latter sank to the ground, and her mother took her across her lap in an effort to relieve her agony. Appellant stood near at hand, and, pointing the pistol at Mrs. Clements, he fired at but did not hit her, saying as he did this, with a vile epithet, “I’ll get you too.” He then went down the road and the women heard several shots in the direction he had gone. A short time after the shooting he was found lying in the road unconscious with three pistol wounds in his chest.

. Miss Clements died from the effects of her wounds about fifteen minutes after she was shot by the appellant. Appellant, was taken to a hospital in Kansas City, where in a short time he recovered from his wonnds, was brought back to Clay County, indicted, tried and convicted as stated.

The defense interposed to this murder was insanity. Voluminous testimony, not unusual in cases of this character, pro and con, and expert and lay, was adduced. On the part of the appellant it ranged all the way from an alleged inherited tendency to insanity due to the alcoholism of the father, and the goitre and defective heart-action of the mother at about the time of the appellant’s conception, on down through his childhood and adolescence, during which time witnesses testified that he received physical and other injuries which aggravated intermittent fits or convulsions, to which he had been subject from his infancy. These paroxysms were defined to be epileptic in their nature and the medical pundits who testified as experts, basing their conclusions, as they were required to do, upon the sometimes illusory facts presented by a hypothetical question, stated that the appellant at the time of the tragedy was suffering from epileptic automatism, or more plainly put, that he was insane as a result of epilepsy, and hence was involuntarily moved to commit the crime.

A number of witnesses for the State who were personally acquainted with the appellant and had been for a number of years, testified that when they saw him he usually seemed to be in a good humor and that they never observed anything unusual in his conduct. An assistant superintendent of nurses, who qualified as an expert in regard to insanity based upon many years’ experience with lunatics and who saw the appellant during the time he was under treatment for his wounds at the hospital, stated that she frequently observed him and that at no time did he do or say anything indicative of mental unsoundness. From this tangled web of contradictory conclusions the jury evolved their verdict.

If any other facts are found necessary to the elucidation of any question raised by the appellant, they will he presented in the discussion of the case.

I. It is contended that error was committed in the giving of an instruction on murder in the second degree; that under the evidence appellant was guilty o± murder m the first degree or of no offense.

While there is, in our opinion, sufficient evidence of anger or a heat of passion on the part of appellant towards deceased at the time of the killing to authorize the giving of the instruction, as we have held in numerous cases (State v. Wieners, 66 Mo. 13; State v. Grugin, 147 Mo. l. c. 51; State v. Marsh, 171 Mo. 528; State v. Robertson, 178 Mo. 505; State v. Minor, 193 Mo. l. c. 612; State v. Bobbitt, 215 Mo. 10; State v. Johnson, 192 S. W. l. c. 442), the contention may be more satisfactorily determined under what is termed our criminal Statute of Jeofails (Sec. 5115, R. S. 1909, now Sec. 3908, R. S. 1919) which provides, in effect, that no judgment or other proceeding shall be deemed stayed or in any manner affected because the evidence shows or tends to show the defendant to be guilty of a higher degree of the offense than that of which he is convicted, and also another statute (Sec. 4903, R. S. 1909; now Sec. 3692, R. S. 1919) more specifically applicable to the case at bar, which provides: ‘‘Upon indictment for any offense consisting of different degrees, as prescribed by this law, the jury may find the accused not guilty of the offense charged in the indictment, and may find him guilty of any degree of such offense inferior to that charged in the indictment, or of an attempt to commit such offense, or any degree thereof; and any person found guilty of murder in the second degree, or of any degree of manslaughter, shall be punished according to the verdict of the jury, although the evidence in the case shows him to be guilty of a higher degree of homicide.” Construing'this statute in State v. Barnes, 204 S. W. l. c. 266, we have held that the giving of an instruction authorizing a conviction of murder in the second degree when the evidence conclusively showed that the crime was murder in the first degree, is not error. The reason .for this conclusion is to he found, first, in the express authority of the statute, and, second, in that the instruction for the lower degree being favorable rather than otherwise to the defendant, he has no ground of complaint. [State v. Clinton, 278 Mo. 344; State v. Whitsett, 232 Mo. l. c. 522; State v. Bobbitt, 215 Mo. l. c. 38; State v. West, 202 Mo. l. c. 138 et seq.; State v. McMullin, 170 Mo. l. c. 630; State v. Frazier, 137 Mo. l. c. 340; State v. Berkley, 109 Mo. l. c. 675.]

II. Appellant assigns error in the refusal of the trial court to permit him to introduce in evidence certain subpoenas and records of court entries which, it was alleged, would tend to show that, while appellant was being held under an information charged with the same crime for which he was being tried; his relatives and other witnesses had been brought before the grand jury and required to testify concerning the crime; and that the transcript of such testimony was being used by the prosecuting attorney in the examination of the witnesses at the trial, to appellant’s prejudice. This assignment seeks for its support Section 5078, Revised Statutes 3909, now Section 3870, Revised. Statutes 1919, which provides, in effect, that after the finding and returning of any indictment, neither the foreman of the jury, nor the prosecuting attorney, nor the clerk of the court shall have the right to cause any subpoena or other process to be issued for any person who is known or believed by such foreman, prosecuting attorney or the jury to be a witness in behalf of the person or persons so indicted, or who has been subpoenaed as a witness for such person or persons, or who such foreman, prosecuting attorney or jury may have reason to believe will be sworn as a witness for such person or persons in regard to a matter or matters charged in such indictment, except upon tlic written order of the judge of the court in which such indictment is returned. It is not contended that the express terms of this statute were violated, hut that they should he so construed as to inhibit the issuance of subpoenas by a grand jury for the examination of witnesses of one charged by information as well as by indictment. The purpose of the statute is evident. The examination of witnesses before a grand jury is an ex parte proceeding, and after an indictment has been returned against the accused it would afford the State an unfair advantage to secretly interrogate his witnesses. The reason for a like inhibition upon a grand jury when the accused is charged by information does not exist. Filed, as the information is, by the prosecuting attorney, who acts independently of the grand jury, his action, in the absence of an express statute, should not be held to limit the power of the grand jury, whose duty it is to diligently inquire and true presentments make of all offenses against the laws of the State -in that county. Furthermore, the inhibition is inapplicable except as to indictments, because the State has no power to interrogate witnesses for the accused, after the filing of an information except at the preliminary examination or upon the trial. This conclusion finds support in our ruling in State v. Faulkner, 175 Mo. l. c. 604, where we held that the statute should be strictly construed to prohibit the issuance of process for witnesses by a grand jury only “after the finding and returning of an indictment.” Subsequently, in State v. Lehman, 175 Mo. l. c. 626, the statute was again under consideration -and the ruling in the Faulkner case was approved.

Incidentally, it may be remarked that the record at bar discloses that upon the finding and returning into court by the grand jury of the indictment against appellant, the prosecuting attorney entered a nolle prosequi to the information. The only pertinency of this is its legal effect in nullifying the information. [State v. Taylor, 171 Mo. l. c. 473; State v. Williams, 191 Mo. l. c. 212.] It is not contended by the appellant that there was any irregularity in the finding or returning of the indictment against him; but in some manner, not definitely stated, it is insisted that the refusal of the trial court to permit the papers and record entries in regard to the information being introduced in evidence, was prejudicial to him. There is no merit in this conten-tention. The information having been legally suspended by the finding and return of’the indictment and actual dismissal of the former by the prosecuting attorney in recognition "of this suspension, all matters in relation thereto were foreign to the case on trial. The court, therefore, properly excluded the testimony offered, and we overrule appellant’s contention.

III. Instruction numbered 8, given by the court, is alleged to be erroneous. It is as follows:

“Insanity is interposed by the counsel of the defendant, as an excuse for the charge set forth m the indictment.
“This defense, when established, is one which the law recognizes, and should insanity be proven, by the evidence in the case, to the reasonable satisfaction of the jury, it would be the duty of the jury, in that event, to acquit the defendant altogether.
“Insanity is a physical disease, located in the brain, ■which disease perverts and deranges one or more of the mental and moral faculties, so far as to render the person suffering from this affliction incapable of distinguishing right from wrong, in reference to the particular act charged against him, and incapable of understanding that the particular act in question was the violation of the law of God and of society.
“Wherefore the court instructs the jury that if they believe and find from the evidence that at the time he did the killing charged in the indictment, the defendant was so perverted and deranged in one or more of his mental and moral faculties, as to be incapable of understanding, at the moment that he killed Elizabeth Ole-ments, that such killing was wrong, and that he, the defendant, at the time was incapable of understanding that this act of killing was a violation of the laws of G-od and of society; if the jury find that he was so insane, they should find him not guilty. Insanity is either partial or general. General insanity always excuses. Partial insanity does not always excuse. One may he partially insane and yet he responsible for his criminal act.
“The law does not excuse, unless the derangement is so great that it actually renders the person incapable, at the time of its commission, of distinguishing between right and wrong in the particular act charged and proved against him.”

The use of the word “excuse” in the initial sentence instead of the word “defense” is urged as prejudicial. This is a rather finical distinction. One of the well defined meanings of an excuse is a justification. A defense is nothing more. An excuse is also defined, especially in legal literature, as a plea offered in extenuation of a fault. [Bouvier L. Dict.; State v. McDaniel, 68 S. C. 304; Reg. v. Harvey, Law Rep. 1 C. C. 284, 11 Cox, C. C. 662; 17 Cyc. 874.] A defensive plea, therefore, to a criminal charge is in a sense an excuse. We said as much in State v. Pagels, 92 Mo. l. c. 309 and in numerous later cases. Burgess, J., in that virile English which characterized his best opinions, gave express recognition to this meaning of the word in State v. Lewis, 136 Mo. l. c. 92, in saying: “But the homicide being shown to have been committed by the defendant, the burden was upon her to show some legal justification or excuse for it, and if excusable on the ground of insanity, it must have been shown to the reasonable satisfaction of the jury.”

In State v. Holloway, 156 Mo. l. c. 228, a capital case in which the verdict was sustained, the leading instruction begins with the identical language employed at bar, viz: “Insanity is interposed by the counsel for the defendant as an excuse for the charge set forth in the indictment. ’ ’

Later cases are of like effect. [State v. Speyer, 207 Mo. l. c. 555 and cases; State v. Paulsgrove, 203 Mo. l. c. 200.]

In the Paulsgrove and Holloway cases the leading-instructions in each contained the following language: “ Insanity is either partial or general. Total insanity always excuses.- Partial insanity does not excuse.” etc., and each closed with the following: “The law does not excuse unless the derangement, ’ ’ etc.

This should suffice to dissipate the tenuous plea of prejudice on account of the use of the word complained of.

The further contention is made that the instruction is erroneous in that it does not inform the jury as to the weight to be given the expert testimony. The jury was correctly informed as to the law in this regard in a separate instruction which, in like form, we approved in State v. Crane, 202 Mo. l. c. 84. It is exceedingly elementary that all of the law applicable to the case under the evidence need not be given to the jury in one instruction. Separate instructions are clearly permissible, the only limitation being that when construed together they shall correctly declare the law and present a harmonious whole. [State v. Shout, 263 Mo. l. c. 375.]

It is also ui'ged that the instruction is erroneous in not authorizing an acquittal if the evidence disclosed that the appellant was “incapable of exercising his will.” Where a plea of insanity is interposed, as at bar, the test of mental capacity is not whether the accused was capable of exercising his will, but whether, by reason of his insanity, he was rendered incapable of distinguishing between right and wrong at the time of the commission of the offense. [State v. Rose, 271 Mo. l. c. 27, and cases; State v. Paulsgrove, 203 Mo. l. c. 205; State v. Miller, 111 Mo. l. c. 551; State v. Turlington, 102 Mo. l. c. 654; State v. Erb, 74 Mo. l. c. 203.]

In the Rose case, after announcing the rule as above stated, we said: “This measure of mental responsibility has uniformly been applied in this State when the defense of insanity has been interposed. [Citing cases.] “This rule accords with reason and avoids the technical distinctions invoked in other jurisdictions in the presence of a plea of insanity, which tends only to interfere with a wholesome administration of the criminal law. The presumption of sanity which always obtains in the absence of countervailing proof (State v. Barker, 216 Mo. l. c. 544) was not removed in this case, and the jury was reasonably satisfied from a preponderance of the evidence that the defendant was sane at the time' of the commission of the crime.”

As in the Rose case, we find no cause for interfering with this finding.

The judgment of the trial court is therefore affirmed.

All concur.


source: Caselaw Access Project

author: EAILEY, C. PER CURIAM:

license: Public Domain

text:
    ALLEN WEST COMMISSION COMPANY, Appellant, v. GUSTAV RICHTER.
    Division Two,
    March 7, 1921.
    1. CONTRACT: Guaranty to Pay Another’s Debt: Uncertain Amount: Extrinsic Oral Evidence. If there is nothing on the face of the written promise to pay • another’s debt to indicate the amount claimed to be due the creditor from the debtor, after deducting allowances which it said were to be made, and the balance due after deducting said allowances can be ascertained . and determined only by resort to extrinsic oral evidence, the creditor cannot, under the Statute of Frauds, recover on said guaranty, for it cannot be pieced out or its deficiencies supplied by oral testimony.
    2. -:-: Consideration. A mere written promise to pay another’s debt, made after the debt had been created, no obligation by the guarantor to pay the same having been assumed at the time or before the debt was contracted, is without consideration, and such subsequent written promise by the guarantor to see that said debt is paid creates no liability against him in favor of the creditor.
    3. -: -: -: Forbearance. The mere fact that the creditor, after receiving the written promise of defendant to pay the debt of an insolvent debtor, without any agreement to forbear, refrained from suing the debtor, does not constitute a consideration for said promise.

      4. -: —i-: By President of Corporate Debtor. There being no evidence tending to show that defendant was the president of the insolvent corporate debtor when the indebtedness sued on was contracted, or that he was indebted to it for unpaid stock or otherwise, and no issue of that kind being tendered in the "petition, a consideration for his written promise to pay the debt of said insolvent corporation cannot be inferred or implied from the fact that he was at one time its president.
    5. -: -: Presumption of Consideration: Trial Theory. It will not be ruled on appeal in this case that Section 2774, Revised Statutes 1909, authorized the presumption that the written promise to pay another’s debt sued on imported a consideration, because: first, the case was not tided on such theory, and on appeal plaintiff must be held to the theory adopted below; second, the plaintiff in its petition alleged that the consideration of the promise was its forbearance to sue the debtor, and it must therefore recover, if at all, upon that allegation; and, third, the presumption can be indulged only in the absence of evidence on the subject, and the petition having alleged that forbearance to sue was the consideration, and that issue being presented to the jury and a verdict returned for plaintiff, it is not entitled to such presumption.
    6. —i-: -: -: Failure of Guarantor to Testify. The contention that a consideration for defendant’s promise to pay another’s debt should be presumed because he did not testify cannot be allowed if (a) the party with whom he dealt was dead at the time of the trial, or (b) plaintiff failed to make a prima-facie case.
    Appeal from St. Louis City Circuit Court. — Hon. Franklin Ferriss, Judge.
    Affirmed.

      8. H. West and Anderson, Gilbert & Hayden for appellant. °
    (1) Consideration is presumed from signature. R. S. 1909, sec. 2774; Wulze y. Schaefer, 37 Mo. App. 551. And it is not necessary to plead any consideration. Eyermann v. Pirón, 151 Mo. 115; Montgomery County v. Auchley, 92 Mo. 126. (2) Under the Statute of Frauds it is unnecessary to state the consideration in the promise to pay the debt of another. Little v. Nabb, 10 Mo. 3; Roberts v. Griswold, 35 Yt. 496; Standard Supply Company v. Finch, 154 N. C. 456; Black v. Mc-Bain, 32 Ga. 128; Reid v. Evans, 17 Ohio, 128; King v. Upton, 4 Me. 387; Packard v. Richardson, 17 Mass. 122; Ellett v. Button, 10 Tex. 208; Sage v. Wilcox, 6 Conn. 81; Goodnow v. Bond, 59 N. H. 150; Gillighan v. Board-man, 29 Me.'79; Haskill v. Tukesbury, 92 Me. 555; International Company v. Flemming, 109 Me. 108. (3) Relation of stockholder is sufficient consideration. (4) A prior oral promise to pay the debt of another is sufficient consideration to support a latter written promise. Wills v. Ross, 77 Ind. 1. A moral obligation is a sufficient consideration to support a subsequent promi.se to pay the debt of another. Post v. Losey, 111 Ind. 88. (5) Forbearance is a sufficient consideration for an agreement to pay the debt of another and the evidence offered in this case made a prima facie showing of such forbearance as a consideration; where the party does not testify, the usual unfavorable and damaging presumptions are to be indulged in. Schooler v. Schooler, 258 Mo. 96; Ins. Co. v. Smith, 117 Mo. 294; Mabnry v. McClnrg, 74 Mo. 575; Baldwin v. Witcomb, 71 Mo. 651; Stevenson v. Kilpatrick, 166 Mo. 269. Evidence is to be weighed in the light of ability to produce and when that which is available and is not produced, the inference is that it is unfavorable and the failure to call a friendly witness having personal knowledge of the facts in issue, raises a presumption of inference that the witness’s testimony would have been detrimental. Burridge v. Ins. Co., 211 Mo. 175; Kirk v. Middlebrook, 201 Mo. 287; Brooker v. Trainer, 172 Mo. App. 379; Bryant v. Lazarus, 235 Mo. 612; Kame v. Railroad, 254 Mo. 194.

      A. & H. N. Arnstein and Henry H. Furth for respondent.
    (1) The writing “Exhibit A” declared on as a guaranty, is not, in fact, an agreement, undertaking or promise, but merely an expression of the defendant’s intent, purpose or expectation. (2) No consideration can be presumed from defendant’s signature to “Exhibit A” under Sec. 2774, R. S. 1909, as the writing is not within the statute, (a) It is not a promise, (b) No sum of money or property is therein mentioned, (c) The paper on its face shows allowances were to be made, (d) To determine the amount, reference must be had to an independent document not identified by the writing' itself, but only by oral testimony, (e) Neither the name of original debtor nor creditor is mentioned in the writing to indicate what the paper referred to. (3) The court erred in admitting “ Exhibit 1” in evidence, as parol evidence is not admissible to connect a series of papers under the Statute of Frauds; the writing signed by the party to be charged must itself identify them. Biest v. Versteeg Shoe Co., 97 Mo. App. 154; Peycke v. Ahrens, 98 Mo. App. 456; Leesley Bros. v. Fruit Co., 162 Mo. App. 195; Johnson v. Fecht, 185 Mo. 335; First Baptist Church v. Bigelow, 16 Wend. 28; Johnson v. Buck, 35 N. J. L. 338; Frank v. Miller, 38 Md. 450; Ordman v. Los-sen, 49 Md. 135; Darge v. Bond, 46 Md. 164; Ridgeway v. Ingram, 50 Ind. 145. (4) Under the Statute of Frauds the consideration for a guaranty must be set forth in the guaranty itself. Reigart v. Coal & Coke Co., 217 Mo. 142; Ordman v. Lossen Bros., 49 Md. 135; Barga v. Bond, 46 Ind. 164; Culbertson v. Smith, 52 Md. 628; Moore v. Folsom, 14 Minn. 340; Hazeltine v. Larco, 7 Cal. 32. And the court erred in admitting the alleged guaranty, “Exhibit A,” in evidence, as it carries no consideration on its face. (5) Plaintiff, having undertaken in its petition to state a consideration, it was necessary for it to plead and prove a valuable consideration, although if Section 2774 were applicable it would not have been necessary for plaintiff to have either pleaded or proved a consideration. Glasscock v. Glass-cock, 66 Mo. 627. (6) Mere forbearance to sue is not a valid consideration; there must be an agreement to forbear. Queal & Co. v. Peterwood, 116 N. W. 543, 19 L. E. A. (N. S; 842; 20 Cyc. 1417, 1418; Powers v. Woolfork, 132 Mo. App. 360; Mandle v. Horspool, 198 Mo. App. 655. (7) Assuming that a previous parol promise had been proven (which it was not), nevertheless such promise was without consideration, Waggoner v. Davidson, 189 Mo. App. 344, and could not support a subsequent written promise without consideration. MacFarland v. Heim, 127 Mo. 327; Iron Co. v. Jenks, 229 Mass. 95; Guillott v. Guillott, 141 La. 81; Guimarian v. Trust Co., 90 S. E. 319. (8) As no parol promise was pleaded, plaintiff could not properly introduce evidence thereof, and the court erred in admitting such evidence. Iron Co. v. Jenks, 229 Mass. 95. (9) Neither a legal nor a moral obligation rests against a stockholder to pay the debts of his corporation; hence a promise by him to do so, to be enforcible, must be supported by a valuable consideration; furthermore, the law does not enforce purely moral obligations. Waggoner v. Davidson, 189 Mo. App. 345; Greenham v. Elliott, 60 Mo. 35. • (10) The defendant had the right to stand on his demurrer; his failure to testify did not create evidence for plaintiff. Kerstner v. Yorweg, 130 Mo. 196; Diel v. Eailroad, 37 Mo. App. 454. (11) Moreover, the defendant could not have testified as his transactions were had with Mr. Allen, who was dead.
   EAILEY, C.

This action was commenced in the Circuit Court of the City of St. Louis, on September 14, 1917. The petition alleges that plaintiff is a Missouri corporation; that the Piggott Store Company was also a Missouri corporation; that on September 1,1914, there was due plaintiff, from the last named company, the sum of $10,755.13, as per account then rendered; “that on November 1, 1914, the defendant, in writing, herewith filed and marked ‘Exhibit A,’ guaranteed and promised to pay said sum, and plaintiff forebore to prosecute said claim in consideration thereof; that plaintiff has frequently demanded payment of said sum from defendant, but that defendant has failed and refused to pay the same. Wherefore, plaintiff prays judgment against defendant for the sum of $10,755.13, together with interest at the rate of six percent per annum from November 1, 1914, and for its costs.”

The amended answer contained a general denial, and also the following:

“And for further defense, defendant says that, although said petition charges defendant upon an alleged special promise to answer for the debt of another, yet the alleged agreement upon which the action is brought is not in writing, nor is there any memorandum or note thereof in writing, signed by the defendant or some other person by him thereto lawfully authorized.
“And for another and further defense, defendant says that there was no consideration for his said alleged promise.
“Wherefore, having fully answered, defendant prays to be hence discharged with his costs.”

The reply was a general denial of the new matter pleaded in defendant’s amended answer.

Amos T. Skinner was sworn as a witness and testified substantially as follows: That he was secretarjr and treasurer of the Allen West Commission Company, whose corresponding office was at Little Rock, Arkansas; that plaintiff ceased to do active business about the 1st of January, 1916, which was about four months after Mr. Allen’s death.

At this point counsel for defendant objected to the introduction of any further testimony, for the reason that the petition fails to state a cause of action; that it does not set forth that there was any consideration for the execution of this guaranty. This objection was overruled and an exception saved.

Witness further testified in substance that he was connected with plaintiff from 1888'until 1893, and again from 1904 to date of trial; that during the above times, he knew who. defendant was, and knew him by sight; that after 1904 defendant was in plaintiff’s office, and witness saw him frequently for a year or so; that during tMs time defendant was president of tlie Piggott Store Company, and plaintiff, during that time, did business with said company, through defendant as its president; that witness kept plaintiff’s books, saw and read all of its correspondence, and sent a statement of the Piggott Store Company to defendant every year while he kept the books, up to September 1, 1914, inclusive.

Plaintiff’s Exhibit 1 was shown to witness, and he testified that the amount stated in this form was .in his handwriting; that the date was not in his handwriting; that the name at the top of the form is in his handwriting; that he is certain the amount stated is the correct balance of that account on that date; that Exhibit 1 was sent to plaintiff’s office at St. Louis, Missouri, signed “G. Richter, ex-president;” that it was received back through the mail. Witness does not recall having opened the envelope containing it; that he saw it in a batch of -mail that had come in. He could not say whether it was by itself or attached to something else; that he saw it while it was with Exhibit 2; that they were together ; that he saw no other statement with the letter; sometimes witness opened the mail, ’ sometimes Allen opened it, and sometimes Homer opened it; that he (witness) saw all the mail. Witness testified that at the time he sent Exhibit 1 to defendant, there was attached to it an itemized account of the Piggott Store Company with plaintiff.

The latter offered in evidence, its “Exhibit A.” It is on the letter-head of G. Richter, Rialto Building, St. Louis, Missouri, and reads as follows:

“November 1st, 1914. Allen West Commission Company. Gents: Referring to enclosed statement, which is O. K., I beg to inform you that though the debt is not mine, I intend to see it paid; your Mr. Allen promised that certain allowances will be made. Respectfully, G. Richter. ’ ’

Plaintiff also offered in evidence its “Exhibit 1” as far as the signature “G. Richter, ex-president,” is concerned. Both exhibits “1” and “A” were objected to by defendant for reasons hereafter referred to,, which objections were overruled, and both exhibits were admitted in evidence.

Said “Exhibit 1” reads as follows:

“Piggott Store Company. Ghistav Richter, St. Louis, Missouri.
“Allen West Commission Company, St. Louis, Missouri.
“Gentlemen: We have examined your statement of our account dated September 1, 1914, which shows a- debt balance of $10,755.13, and we find the same to be correct with the exceptions noted below.
“ (Signed) Yours truly, G. Richter, Ex-President.—
“Exceptions: Mr. Allen agreed that the account is to be adjusted when paid.”

Witness Skinner further testified that after receiving the above guaranty, plaintiff took no steps to collect said account from the Piggott Store Company.

On cross-examination, witness said that he understood the Piggott Store Company had gone out of business prior to 3905.

Edward P. Horner, who was secretary and treasurer of plaintiff up to the time of Allen’s death, testified in substance, that he knew defendant; that he had a conversation with defendant in 1915; that he called on defendant to pay said account; that defendant then told witness that he had promised Mr. Allen to pay it and that he expected to pay it as soon as he could; that he told witness he always promised to pay it, agreed to it, and expected to pay it. He never objected to the account. Said he had always promised Allen to pay it. On cross-examination, he said the Piggott Store Company was insolvent.

The above was substantially all the testimony in the cause. At the close of plaintiff’s case, defendant interposed a demurrer to the evidence, which was overruled and an exception saved. Defendant offered no evidence, but stood upon its demurrer. The court, of its own motion, gave to the jury the following instruction:

“If you find from tlie evidence, tlxat defendant signed the letter of November 1, 1914, and mailed same with the paper marked ‘Exhibit 1’ to plaintiff and that relying on same plaintiff thereafter refrained from prosecuting its claim against the Piggott Store Company, or if you find that prior to the signing and mailing of said letter by defendant he promised plaintiff only to pay said account of the Piggott Store Company, then you will find for plaintiff $10,755.13, with interest at six per cent from January 1, 1916, to date. . You will find the principal and interest separately in your verdict, and also state the aggregate of principal and interest in your verdict.”

The cause was submitted to .the jury, and the latter returned a verdict for $12,881.03. Judgment was entered in due form on said verdict. Defendant, in due time,filed his motion for a new trial, containing seventeen grounds, etc. The court below granted defendant a new trial, for reasons hereafter mentioned. Plaintiff appealed from the order granting defendant a new trial.

I. In passing upon the judicial acts of Judge Fee-kiss, in granting a new trial in this cause, we have deemed it- appropriate to set out, as a part of our opinion, Ms memorandum, found in the record, sustaining said motion. Without caption and signature, it reads as follows :

“The guaranty declared on in. this case contains no consideration, and in point of fact no consideration was proved.
“It was claimed that there was a forbearance. The mere fact that the plaintiff refrained from pressing the claim against the corporation does not constitute a forbearance in a legal sense; The guranty does not ask the plaintiff to forbear; there is no evidence that the plaintiff promised to forbear, and it is apparent that the plaintiff could have prosecuted the claim against the corporation at any time, notwithstanding this guaranty.
“Forbearance lias been defined to be ‘an engagement which, ties up the hands of a creditor. It is an act of the creditor depriving himself by something" obligatory of the power to sued [3 Words and Phrases, p. 28681]
“Again: ‘If the promisee conld have sued at any time without breaking his contract, actual extension of time is no' consideration. ’ ‘[Page on Contracts, sec. 2868.]
“It follows from this that the guaranty is insufficient on its face and is unsupported by the testimony.
“I am not impressed by the argument against the action of the court in permitting parol evidence to supplement ‘Exhibit A’ for the purpose of identifying the statement. While it is true that an alleged guaranty made up of different papers should refer to them, yet it must be competent to show that a, particular paper is the one referred to in the guaranty.
“I think, however, that the statement enclosed and referred to in ‘Eixhibit A’ was sufficiently identified. Evidence of a prior parol promise to pay this debt, especially without consideration, did not make- the subsequent written promise without consideration valid. Two negatives cannot make an affirmative.
“I am, therefore, of the opinion that the court erred m refusing the peremptory instruction offered by defendant at the close of plaintiff’s case, and also erred in the instructions given by the court, both as to the question of forbearance and the alleged prior oral promise.
“For these reasons the motion for a new trial will be sustained.”

We will pass to' a 'consideration of the questions raised by appellant in its assignment of errors.

II. In order to1 obviate the consideration of unnecessary questions, it may be conceded, for the purpose of the case, that exhibits “A” and “1,” heretofore set out, were attached and mailed by defendant plaintiff about November 1, 1914; that prior to the latter date, and after the debt due from! the Piggott Store Company to plaintiff liad been contracted, and was past due, the defendant orally promised plaintiff to pay said debt, subject to certain allowances. With these concessions made for the purposes of the argument, can plaintiff successfully maintain this action ?

Giving to “Exhibit A” a plain, common-sense construction, it means that, after deducting certain allowances from the Piggott Store Company debt, defendant agreed to see that the remainder of said debt was paid.

Section 2783, Revised Statutes 1909, provides that: “No action shall be brought ... to charge any person upon any special promise to ansWer for the debt, . . . of another person, . . . unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith. ’ ’

The plaintiff, having sued upon “Exhibit A,” as an agreement between itself and defendant to pay the debt due from the Piggott Store Company to appellant, the liability of defendant thereunder, must, in view of the Statute of Frauds, supra, be measured by the terms of said “Exhibit A,.”

There is nothing upon the face of either the latter or “Exhibit 1,” to indicate the amount claimed to be due plaintiff after deducting the allowances which were to be made. In other words, the balance due after de^-ducting said allowances, could only be ascertained and determined by resort to extrinsic evidence. As there is nothing in either exhibit “A” or “1,” indicating the balance due plaintiff after deducting said allowances; and as no evidence was introduced by plaintiff showing the same, it has failed to make out a case under the Statute of Frauds, supra. [Fox v. Courtney, 111 Mo. 147; Ringer v. Holtzclaw, 112 Mo. 519 ; Boyd v. Paul, 125 Mo. l. c. 14; Johnson v. Fecht, 185 Mo. l. c. 342, and following; Reigart v. Coal & Coke Co., 217 Mo. 142; Cement Co. v. Kreis, 261 Mo. l. c. 169 et seq.; Anderson v. Hall, 273 Mo. 307, 202 S. W. 540; Duncan v. Spencer, 211 S. W. (Mo. App.) 608-9.]

In Ringer v. Holtzclaw, 112 Mo. l. c. 523, 524, Judge Gantt, speaking for this Division, said:

“But under the Statute of Frauds), if the subject-matter of tlie contract is within the statute, and the contract or memorandum is deficient in some one or more of those essentials required by the statute, parol ¡evidence cannot be received to supply the defects, for this were to do the very thing prohibited by the statute This must be obvious1 upon the slightest reflection. . . . Nor have we any inclination to add another exception to the statute, since, as said by. Jackson, C. J., in Smith v. Jones, 66 Ga. 338: ‘The flood gates are ojien wide as to the competency of witnesses, and the only break-water left is the requisition to put this class of contracts, and others of similar character, in writing. ’ ’ ’

Judge Sherwood, in Boyd v. Paul, 125 Mo. l. c. 13, 14, said:

“In the second place, that portion of the contract which was dehors the written assignment, of the lease rested in parol,, and could- not be introduced in evidence without acting in plain contravention of the Statute of Fraud's. Where your memorandum under the statute is scant in measure you cannot piece it out by verbal additions. ’ ’

The other cases cited are in accord with the law as declared in above quotations.

No other document appears in the record tending to show what allowances were to be made in the settlement of plaintiff’s demand against the Piggott Store Company. No parol evidence was offered in respect to said matter. Even if the language used by defendant in “Elxhibit A” (in speaking of said indebtedness) that he intended to “see it paid,” be construed as a promise to pay, yet the language of said exhibit must be considered as a whole. It clearly appears1 from the reading of both exhibits “A” and “1” that defendant only agreed to pay the balance due, after deducting the- allowances which plaintiff was to make when tlie indebtedness was settled.

The defendant is asserting no counterclaim in this case, and was under no obligation to furnish the proof necessary to take plaintiff’s case out of the Statute of Frauda The trial court, therefore, properly held, in granting' defendant a new trial, that the latter’s demurrer to plaintiff’s evidence should have been sustained.

III. The court below held, in sustaining defendant’s motion for anew trial, that: “The guaranty declared on m this case contains no consideration, and in point of fact no1 consideration was proved.”

The petition herein alleges: “That on November 1, 1914, the defendant in writing, herewith filed and marked ‘Exhibit A,’ guaranteed and promised to pay said sium ($10,7'5i5.13i), and plaintiff forbore to prosecute said claim in consideration, thereof. ’ ’

The trial court submitted the case to the jury, as shown by the instruction heretofore set out, on the theory, that plaintiff’s forbearance to sue was a sufficient consideration, etc. Plaintiff tried the case below upon the above theory, and is now before this court insisting that the cause should be reversed and its original verdict re-instated based upon said theory. It is well established law in this jurisdiction that plaintiff is concluded here by the theory upon which it tried the case below. [Brunswick v. Ins. Co., 278 Mo. l. c. 162-3, 213 S. W. 45; Franklin v. School District, 271 Mo. l. c. 592, 197 S. W. 345; Bank v. Clifton, 263 Mo. l. c. 209-10; Paramore v. Campbell, 245 Mo. l. c. 317; St. Louis v. Wright Contr. Co., 210 Mo. l. c. 502, and cases cited; Dice v. Hamilton, 178 Mo. l. c. 90-1.]

The petition does not allege, nor does the evidence show, that defendant, at the time the debt due from the Piggott Store Company to plaintiff was contracted, or prior thereto, agreed to be responsible for said indebtedness or any part thereof. On the contrary, the only promise of defendant to pay any part of said indebtedness was made after the same had been contracted, and this is the tiieor}'- upon which the canse was submitted to the jury, as1 shown by the instruction given by the court, heretofore set out. As there was no consideration shown, except the mere forbearance to sue the Piggott Store Company on its indebtedness (notwithstanding its insolvency), the theory on which the case was submitted to the jury was clearly erroneous, and so recognized by the lower court in granting a new trial. Unless defendant at the time, or before the Piggott Store Company indebtedness was contracted, had obligated himself to pay the same, Ms subsequent promise to see said indebtedness paid, was without consideration and created m> liability in favor of plaintiff by reason thereof. [Pfeiffer v. Kingsland, 26 Mo. 66; Williams v. Williams, 67 Mo. l. c. 665-6; McMahan v. Geiger, 73 Mo. 145; County of Montgomery v. Auchley, 92 Mo. l. c. 129-30; Tucker v. Gentry, 93 Mo. App. 661, and cases cited; Wollman v. Loewen, et al., 96 Mo. App. l. c. 303; Eitel v. Farr, 178 Mo. App. l. c. 369-70.]

IV. The court below7', in sustaining defendant’s mor tion for a new trial, properly held that no agreement was'shown to the effect that plaintiff was to forbear suing the Piggott Store Company, as a consideration for defendant’s alleged promise to pay the debt of said company. It does not appear from the evidence that any forbearance was asked by either defendant or the Store Company. The latter was shown to be insolvent and, hence, no reason was shown for asking a forbearance. The only evidence relating- to a forbearance to sue lies in the fact that plaintiff did not sue after receiving “Exhibit A” from defendant. No forbearance to sue, was asked by anybody, nor was any agreement to forbear made between plaintiff and defendant. Respondent could have sued the Store Company, at any time after receiving “Exhibit A,,” without violating any legal or moral obligation wMch it owed defendant and, hence, the mere fact that it refrained from suing an insolvent company, without any agreement to forbear, afforded no consideration for defendant’s subsequent .promise- to pay the debt of another. [Glasscock v. Glasscock, 66 Mo. l. c. 630; Cass County v. Oldham, 75 Mo. l. c. 52-3; Gate City Nat. Bank v. Elliott, 181 S. W. l. c. 28; Powers v. Woolfolk, 132 Mo. App. l. c. 360, and cases cited; Mandle v. Horspool, 198 Mo. App. l. c. 655, 201 S. W. 639 ; 6 Ruling Case Law, sec. 70, p. 659 and cases cited; Page on Contracts, sec. 2868; 3 Words and Phrases, p. 2868.]

V. It is contended by appellant that there was sufficient proof as to the consideration in support of defendant’s promise to pay the Store Company’s debt, because defendant had at one time been the president of this insolvent corporation. There is no evidence in the record tending to show that defendant was a stockholder in the P'iggott Store Company when the debt in controversy was contracted. Nor does it appear from the evidence that he was indebted to the Store Company on account of unpaid stock or otherwise. No such issue was tendered in the petition, but on the contrary the latter alleged, in plain, unambiguous terms, that defendant ‘ ‘ guaranteed and promised to pay said sum, and plaintiff forbore to prosecute said claim in consideration thereof.” This' contention, on the facts before us, is without merit and overruled.

VI. It is likewise insisted by respondent that the trial court committed error in granting defendant a new trial, because Section 2774, Revised Statutes 1909, authorized the presumption that “Exhibit A,” sued on in this cause, imported a consideration, Having reached the conclusion that the alleged agreement in controversy is within the Statute of Frauds, as shown in Paragraph Two of this opinion, we do not deem it necessary to determine whether a consideration might be presumed, under Section 2774, based upon the facts in this case as outlined in paragraph two supra, for several reasons:

First: Because the case was not tried below on any such theory.

Second: Because appellant is seeking in this court to have the case reversed, remanded, and its judgment re-instated, on the facts and issues presented to the trial could, where no such theory was presented or urged. Under the authorities heretofore cited, plaintiff must be hold here to the theory adopted by it in the court below.

Third: Because, even, if the promise were sufficient to make a prima facie showing, under Section 2774, yet, as1 plaintiff in its petition alleged that forbearance to sue was the consideration for said promise, it must recover, if at all, upon the allegations of its petition. [Byers v. Essex Inv. Co., 219 S. W. l. c. 571;; Zasemowich v. Am. Mfg. Co., 213 S. W. l. c. 802; Roscoe v. Met. St. Ry. Co., 202 Mo. 576; McGrath v. St. L. Transit Co., 197 Mo. l. c. 105; and cases cited; McManamee v. Ry. Co., 135 Mo. 440.] Many, other cases in, this State might be cited to the same effect. "While the foregoing were negligence cases, yet the principles of law1 stated therein apply with equal force to the case at bar.

We are of the opinion that where the petition, like the case before us, specifically alleges the forbearance to sue as the consideration for the promise, no recovery can be sustained under1 Section 2774, Revised Statutes 1909, on the theory that a consideration might be presumed, even if the matter had been presented in ■ the trial court.

Fourth: Because a presumption can only be 1 indulged in the absence of evidence on that subject. In this case the petition alleges that the forbearance to sue was the consideration for said promise. This was the issue presented to the jury in the court belowr, and upon which a verdict was returned for plaintiff. The. latter is insisting here that we should convict the trial court of error, in setting aside its verdict, based upon the allegation of plaintiff’s petition, without any reference to Section 2774 supra. If we should reverse the case, and direct the trial court to reinstate the original judgment based upon the verdict of the jury, it would have to be done on the theory that the forbearance to sue, as alleged in petition, was a sufficient consideration for defendant’s promise, regardless of the above section. In cases of this character, where the plaintiff has alleged the specific facts relating to the consideration for siaid promise, it must recover alone upon such allegations, and would not be entitled to indulge in presumptions, relating to that issue, even if the trial court’s attention had been called thereto, and the matter urged in said court. In other words, no presumption can be indulged whore the petition in direct language alleges that the forbearance to sue was the consideration for the promise aforesaid, and where the case was tried below upon the above theory, as shown by the court’s instruction heretofore set out. [Stack v. General Baking Co., 223 S. W. (Mo.) l. c. 97 and cases cited; State ex rel. Peters v. Reynolds, 214 S. W. (Mo.) l. c. 123; State ex rel. v. Ellison, 268 Mo. 240; Burge v. Railroad, 244 Mo. l. c. 94; Tetwiler v. Railroad, 242 Mo. 178; Higgins v. Railroad, 197 Mo. 318; Mockowik v. Railroad, 196 Mo. l. c. 571-2, and cases cited; Morton v. Heidorn, 135 Mo. l. c. 617, and cases cited; Weller v. Railroad, 120 Mo. l. c. 650-1.]

VII. It is further contended that plaintiff’s original judgment should be restored, becausa defendant did not go upon the stand to testify and, hence, that a consideration should be presumed, etc. This position is untenable for two reasons:' (a) Because Allen, with whom defendant dealt in respect to “Exhibit A,’’ was dead at the time of trial, and respondent was not, therefore, a competent witness as to the merits of the controversy, (b) Because plaintiff, having failed to make a prima-faeie case, no presumption can be legally indulged, in respect to defendant’s failure to testify Tinder such circumstances. [Kerstner v. Vorweg, 130 Mo. l. c. 201; Diel v. Ry. Co., 37 Mo. App. 454.]

In Diel v. Ry. Co., 37 Mo. App. l. c. 457, Judge Rombauer very clearly and forcefully stated our view of the law on this1 subject, as follows:

“It is an elementary rule that, before a defendant can be called upon to introduce evidence to discharge himself, the plaintiff? must by some legal evidence show a liability on his part. ’ ’

We have carefully considered every phase of this case, and without hesitation have reached the conclusion that plaintiff is not entitled to recover upon the record before us.

The order and judgment of the court below, in granting defendant a new trial, is accordingly affirmed.

Mosley and White, CG., concur.

PER CURIAM:

The foregoing opinion of Railey, C., is hereby adopted as the opinion of the court.

All of the judges concur.


author: MOZLEY, C. PER CURIAM:

text:
    THE STATE v. POLLY HOWE, Appellant.
    Division Two,
    March 7, 1921.
    1. CONSTITUTIONAL QUESTION: Preserved for Review. If the constitutional question was raised only by a motion to quash the information, and the bill of exceptions fails to show that a motion to quash was filed or overruled, the question is not for consideration on appeal.
    2. PROSTITUTION: Receiving Money of Prostitutes: Act of 1913. Section 3 of the Act of 1913, Laws 1913, page 220 (the Missouri “White Slave” Act) does not distinguish between the character of persons to whom it is intended to apply, but is broad enough to embrace all persons who knowingly accept money earned by a woman by acts of prostitution, without consideration, regardless of the manner in which it is received, whether they be procurers, or men engaged in illicit traffic with women, or a woman who keeps a baudy house and requires another woman therein to divide with her the proceeds of her earnings while engaged -in prostitution.
    3. -: -: Earned by Illicit Sexual Intercourse. An instruction telling the jury that if defendant did knowingly, unlawfully and feloniously .accept, receive or appropriate to her own use any amount of unlawful money made by the earnings of a certain woman, “by engaging in prostitution, that is, by having illicit sexual intercourse with men,” etc., includes words not in the statute, and by the use of the word “illicit” might require the jury to find that the prostitution of the woman was criminal; but their inclusion is an error of which the defendant cannot complain, because these words placed upon the State a greater burden than the statute does, and requires the jury to find a fact which the statute does not make an element of the offense. Tne statute only requires the jury to find that the money received by defendant was earnings received by a woman engaged in prostitution; and if the money was so earned, and defendant knowingly received it, without other consideration, she is guilty under the statute, although the conduct of the prostitute may not have been viuianve of the criminal law.
    4. -: -: Evidence; Physician’s Receipt. A pnysician’s receipt snowing that defendant had paid a bill for the prosecutrix, offered for tne purpose of accounting for the absorption by the defendant of the prosecutrix's money, is a mere statement of a third person not a party to the suit, without oppoitunity of cross-examination, and is thereiore pure hearsay, ■ and is properly excluded.
    5. DEPENDANT AS WITNESS: Cross-Examination: former Conviction. Under ihe statute (Sec. 6383, R. S. 1909), a defendant, who takes the Witness stand in his own behalf, may be asked on cross-examination if he was ever convicted of felony or otner crime.
    6. EVIDENCE: Rumiing off Witness. Testimony tending to show that defendant has attempted to procure false evidence, or to destroy evidence against himself, or to spirit away the prosecutrix so as to prevent her irom testiiying, is always admissible.
    7. ’ OPENING STATEMENT. Ic is not incompetent for the yrosecuting attorney to mention any fact in his opening statement which he can prove and it is competent for him to prove. It was not improper for the prosecuting attorney in his opening statement to state that defendant had attempted to spirit away the prosecutrix, since it was proper to prove that fact and there was evidence tending to prove it.
    Appeal from Randolph Circuit Court . — Hon. A. W. Walker, Judge.
    Affirmed,

      Irwin & Haley and JR, A, Higdon for appellant.
    (1) The legislative act. Laws 1913, p. 219, under which defendant was tried, is unconstitutional in that the bill, as enacted, does not conform to the requirement of Section 28 of Article IY of the Constitution, in that said bill contains more than one subject, as is expressed in its title. The title even embodies the subject of removal of disqualifications of witnesses. While it is true that this title, as given in the caption, is not treated in the body of the bill, still this should enter into consideration of the point here made. A bill to comply with the Constitution should deal with subject-matters having natural connection. The provisions of this act must be germane to the subject. State v. Coffee & Tea Co., 171 Mo. 634; State v. Bixman, 162 Mo. 1. (2) Even conceding the constitutionality of the law, it has no application to the facts as established by the evidence in this case. The evidence tends to prove only that the defendant was guilty of a misdemeanor, to-wit, a bawdy-house keeper. (S') The instructions given by the court might be said to approximately cover the case under the theory taken by the trial court, that a bawdy-house keeper who, by furnishing house, room, board, etc., and who received in consideration there for a share of the money earned by inmates, comes within the purview of the act under which defendant was tried. Appellant contends that such was not the intendment of the act, and that all the instructions given are error. (4) The trial court voiced his interpretation of the act, and in Instruction 1, complained of, gave an unwarranted extension to the act itself, by refusing to use the words of the statute, “without consideration, ’ ’ and by substituting instead the words “without any consideration therefor independent of said witness engaging in illicit sexual intercourse as aforesaid.” (5) The court should have instructed the jury as to the meaning of the words “illicit sexual intercourse” used in Instruction 1, by defining the same, as the duty devolves upon the State to define the meaning of technical words when used in informations and instructions. (6) The State was permitted to offer testimony tending to prove the crimes of false imprisonment, tampering with a witness, the removal and secretion of witnesses, and other crimes, with none of which defendant stood charged. The admission of this testimony is clearly in violation of the general rule and cannot be justified under any exception to the rule that the courts of this State have ever recognized. State v. Duff, 253 Mo. 415; State v. Iiyde, 234 Mo. 200; State v. Hale, 156 Mo. 102; State v. Moberly, 121 Mo. 604; State v. Young, 119 Mo. 495; State v. Reed, 85 Mo. 194; State v. Martin, 74 Mo. 547; State' v. Goetz, 34 Mo. 85. (7) The court permitted the defendant to -be cross-examined concerning many matters about which she did not testify in chief, all over the objections of defendant. This cross-examination even embraced examination as to other alleged crimes than that charged in the information. The cross-examination of defendant concerning conversations with Niece Bond and transactions alleged as occurring in Kansas City, Missouri; concerning abduction of witnesses, and concerning alleged threats to kill prosecuting witness if she did not sign statements, none of which had been gone into in defendant’s examination in chief, are all violative of well-defined rules of evidence and were hig’hly prejudicial to defendant. Added to this error, three witnesses were permitted to testify to impeach defendant on answers' compelled on cross-examination concerning matters not gone into in her examination in chief, all to the prejudice of defendant. State v. Grant, 144 Mo. 56; State v. Hathborn, 116 Mó. 229; State v. Brannum, 95 Mo. 19; State v. Fullerton, 90 Mo. 411; Sec. 5242, R. S. 1909. (8) The defendant produced a receipted bill for money paid by defendant for medical services rendered to the proscuting witness. The court not only rejects this evidence, but.reprimands defendant’s counsel for offering same. We submit, the charge being specifically for money had and received without lawful consideration, that the defendant in all conscience should have been permitted to introduce a receipted bill for money paid in behalf of prosecuting witness.

      Frank W. McAllister, Attorney-General, Henry B. Hunt, Assistant Attorney-General, and A. L. Shortridge, of counsel, for respondent.
    (1) The filing and overruling of a motion to quash must appear in the record proper. As the purported constitutional question is set forth in a motion to quash, the filing and overruling of which motion is not noted in the record proper, no constitutional question is raised for review. 4 C. J. 59, sec. 1647; -2 Cyc. 1041; State v. Scobee, 255 Mo. 272; State v. George, 221 Mo. '521; State v. Tooker, 188 Mo. 444; State v. Glasscock, 232 Mo. 291; State v. 'Wooley, 215 Mo. 675; State v. Einley, 234 Mo. 604. (2) The Act of 1913 deals with but one subject, pandering, which is clearly and solely expressed in the title of said act. Laws 1913, p. 219; 1 Sutherland, Statutory Construction, p. 249; Ewing v. Hoblitzelle, 85 Mo. 71; State v. Doerring, 194 Mo. 408; People v. Fegelli, 163 App. Div. (N. Y.) 579. A bill is not defective because it does not deal with all matters expressed in the title. 36 Cyc. 1032; State ex rel. v. Bronson, 115 Mo. 276; State v. Burgdoerfer, 107 Mo. 28. (3) The act in question created the substantive offense of pandering. Section 3 of said act designates one of the prohibited forms of said offense, and the evidence tended to prove the offense as charged under said section. Laws 1913, p. 219; State v. Fink, 186 Mo. 56; People v. Fegelli, 163 App. Div. (N. Y.) 577; Currington v. State, 72 Tex. 'Cr. 148. (a) Said Act of 1913, Section 3, was not aimed solely at the “cadet” who subsists directly on a prostitute’s earnings. The purpose of the act was to stop all forms of money making from earnings by prostitution. People v. Fegelli, 163 A¡pp. Div. (N. Y.) '578; Currington v. State, 72 Tex. Cr. 148. (b) Said act did hot repeal, and does not conflict, with the statute prohibiting the setting up and keeping of a bawdy house. Sec. 4754, R. S. 1909; 36 Cyc. 1095; 1 Sutherland, Statutory Construction, p. 463; State v. Brotzer, 245 Mo. 508. (4) The State introduced evidence tending to show that appellant, after her arrest, falsely imprisoned the prosecutrix, abducted and secreted her, forced her to malee a false affidavit denying the offense, and persuaded her to agree to testify in appellant’s behalf. This evidence was competent to show appellant’s consciousness of guilt. 16 C. J. 555, sec. 1075; 12 Cyc. 398; Underhill, Crim. Ev. (2 Ed.) sec. 121; Kelly’s Crim Law, sec. 289; State v. Alexander, 184 Mo. 274; State v. Alexander, 119 Mo. 461; State v. Matthews, 202 Mo. 148; Ryal v. State, 182 Pac. (Okla.) 257; State v. Keith, 47 Minn. 563; Conway v. State, 118 Ind. 490. (5) The Court properly permitted the State to cross-examine appellant with reference to her meeting with Niece Bond. State v. Sherman, 264 Mo. 381; State v. Ivy, 192 S. W. 736; Sec. 5242, R. S. 1909; 40 Cyc. 2714; State v. Avery, 113 Mo. 499; State v. West, 95 Mo. 143; State v. Balter, 262 Mo. 699.
   MOZLEY, C.

On the 18th day of June, 19l9, the defendant was convicted in the Circuit Court of Randolph County, and sentenced to a term of four years in the penitentiary, on the charge of receiving, without consideration, the sum of thirty dollars from Lillie Slingman, the money earned in prostitution, contrary to Section 3 of the Act of 1913, Laws 1913, p. 22:0. The information was filed in Pettis County, charging the commission of the offense in that county,'and a change of venue was granted to Randolph County, where the case was tried. The defendant appealed.

The evidence shows that the defendant kept a house of prostitution in the City of Sedalia. Lillie Slingman became an inmate of that house some time in February, 1919, and remained there a week or more and then ran away, she testified. Her testimony, and that of two or three other inmates of the same house, was to the effect that she had an arrangement with the defendant whereby she was to pay three dollars for her hoard and give to the defendant half the money which she made while there. She earned sixty-three dollars while at the place, the proceeds of prostitution. The defendant took all the -money as soon as Lillie collected it, and after deducting her half charged Lillie the balance for clothes, etc. The evidence is entirely clear and sufficient to show the character of the house kept by defendant, and the agreement between Lillie Slingman and defendant and the manner in which the money was earned.

The information was filed April 5, 1919, and the trial began on the 17th day of June and ended by a verdict on the 18th of June. Evidence was introduced by the State to show attempts by the defendant, between the time of the arrest and the trial, to get Lillie Slingman out of the way. She was persuaded to get into an automobile one day, was taken to Clinton and sent to Springfield; was for a time in Kansas City, and in Quincy, Illinois. She was brought back to Sedalia by the sheriff at one time from Joplin, Missouri, and another time from Quincy, Illinois. She had been in jail in order to hold her as a witness, just prior to the time she testified.

At one time, while apparently under the influence of the defendant, in June, 1919, she made an affidavit in which she stated that all that she had previously said about receiving money from men and dividing with Polly Howe, and the kind of house Polly Howe kept, was untrue; that Polly Howe was kind to her, and that her business was dressmaking, and that the prosecuting attorney had threatened her with jail and the penitentiary if she did not state that Polly Howe had spirited her off. On being shown this affidavit while on the stand, the witness stated that she was taken to defendant’s residence; that a lawyer was there who asked her to sign the affidavit; that the affidavit wras not read to her but she signed it because she was afraid of- the appellant, who had a gun on the table at the time.

Defendant testified that she received no money from Lillie except for her clothes and doctor’s bills, and introduced evidence tending to show that she was entirely innocent of the crime charged. Other facts in connection with the alleged offense will be mentioned in considering the points urged for reversal.

I. The demurrer to the evidence was properly overruled. The case was one for the jury.

II. It is claimed by appellant that the statute under which the appellant was prosecuted is unconstitutional. The constitutional question, it is asserted, was raised by motion to quash the information. The transcript of the record proper filed in this court nowhere shows the filing or overruling of any motion to quash. On the suggestion of a diminution of the record, a writ of certiorari was directed to the Clerk of the Circuit Court of Randolph County requiring him to certify the record in said cause. In response to the writ the clerk of the circuit court sent here his certificate showing that a bill of exceptions was filed, but presented no copy of any record showing that the motion to quash was ever filed or overruled. Therefore, the unconstitutional question is not before us for consideration. [State v. Wade, 263 Mo. 263; State v. Scobee, 255 Mo. 1. c. 272; State v. George, 221 Mo. 1. c. 521.]

III. It is further urged by thei appellant that Section 3 of the Act of 1913 defining a felony cannot apply to the defendant in this case. It is contended that Section 4754, Revised Statutes 1909, which provides a penalty for keeping a brothel or bawdy house, describes the offense of which the defendant was guilty as a misdemeanor, and that the receiving of money earned by the inmates of the place was not the offense intended by the Legislature to apply to such person. The argument is that the act was intended to apply to procurers and cadets, and particularly to men engaged in the traffic with women. The Act of 1913 is the Missouri “white slave” act, and the language of Section 3 does not distinguish between the character of persons to whom it is intended to apply. It is broad enough to embrace any person who knowingly accepts money earned by a woman in prostitution, without other consideration, regardless of the manner in which it is received. The fact that the defendant may have been guilty of another offense against which the statute is leveled would not prevent her being guilty of the offense under consideration.

IY. It is further contended that the court erred in giving instruction number one, as follows:

“1. The court instructs the jury that if you believe and find from the evidence that the defendant at the County of Bettis, in the State of Missouri, on the— day of February, 1919, or at any time within three years next before the filing of the information herein, to-wit, 7th day of April, 1919, did knowingly,. unlawfully and feloniously accept, receive or appropriate to her own use any amount of lawful money of the United States from earning's made byffhe witness, Lillie Slingman, by engaging in prostitution, that is by having illicit sexual intercourse with men, and that said money was accepted, received or appropriated to her own use by defendant without any consideration therefor independent of said witness engaging in illicit sexual intercourse as aforesaid, then you should find the defendant guilty, and assess her punishment at imprisonment in the penitentiary for a term of not less than two nor more than twenty years.”

Section 3 of the Act under consideration is as follows:

“Sec. 3. Earnings of prostitute — not to be accepted or received — felony—penalty. That any person who shall knowingly accept, receive, levy or appropriate any money or other valuable thing, without consideration, from the proceeds of the earnings of any woman engaged in prostitution, shall be deemed guilty of a felony, and upon conviction thereof shall be punished by imprisonment for a period not less than two nor more than twenty years.”

The objection to the instruction is that the jury was required to find that the money was received £ £ by having illicit sexual intercourse with men. ’ ’ This clause is not in the statute nor is it in the information — the information following the language of the statute. It is argued that the immoral conduct of women kept in a house of the character described might be such that no statute makes it criminal, while this instruction directs the jury to find that the money was earned by “illicit” or criminal acts, that is, acts against which some statute is leveled.

That is error in the instruction, but the appellant is not injured by it; it is an error against the State. It requires a finding by the jury of a fact which the statute does not require to be found as an element of the offense. The instruction put an additional burden upon the State, which the law did not impose; that is not an error of which the defendant has any right to complain. [Turnbow v. Kansas City Rys. Co., 277 Mo. 644; Krinard v. Westerman, 279 Mo. 680; Bryant v. K. C. Rys. Co., 217 S. W. l. c. 634; Malone v. St. L. & S. F. Ry. Co., 213 S. W. l. c. 867; Shawhan v. Shawhan Dist. Co., 197 S. W. l. c. 374; Martin v. Coal Co., 174 Mo. App. 1. c. 445-6; Moore v. McHaney, 191 Mo. App. l. c. 697.] The statute required a finding only that the money received by the defendant was earnings of the Slingman woman in prostitution. Although the conduct of Lillie Slingman while an inmate of the defendant’s house may have been strictly within the law so far as the criminal statute is concerned, yet if the money was earned by the means described in the statute, and the defendant knowingly received it without other consideration, defendant was guilty.

While the defendant was on the stand counsel offered in evidence a receipt by a physician showing the defendant had paid a doctor bill for Lillie Slingman amounting to $25. This receipt was offered to account for the absorption by the defendant of Lillie’s money. The evidence was excluded, and error assigned to the ruling. The evidence was pure hearsay; such a statement by a third person not a party to the suit, with no opportunity to cross-examine, comes within the rule relating to hearsay evidence. [Doherty v. Doherty, 155 Mo. App. l. c. 487; Howell v. Sherwood, 242 Mo. 513.]

VI. Defendant was asked on cross-examination if she had ever been arrested and convicted of crime. She stated that she had, three times, and then mentioned the three offenses of which she had been convicted. It is urged that this cross-examination is error because the defendant was not examined as to those matters in chief.

Section 6383, Revised Statutes 1909, is as follows: “Any person who has been convicted of a criminal offense is, notwithstanding, a competent witness; but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, ” etc.

This section repeatedly has been held by this court to apply to a defendant who takes the stand in his own behalf. [State v. Larkin and Harris, 250 Mo. l. c. 240-241; State v. Spivey, 191 Mo. l. c. 110-111; State v. Woodward, 191 Mo. 617, l. c. 633; State v. Thornhill, 174 Mo. 364; State v. Banks, 258 Mo. 479; State v. Corrigan, 262 Mo. 195; State v. Mills, 272 Mo. 526; State v. Barrington, 198 Mo. 23; State v. Barnett, 203 Mo. l. c. 657; State v. Johnson, 192 S. W. 441.]

In the case of State v. Larkin and Harris, supra, this court pointed out the apparent conflict between Section 6363 and Section 5242 which prohibits the cross-examination of a defendant, while a witness, upon matters not referred to in his examination in chief; but holds the rule to be well settled in this State that a defendant, in any case, while on the stand, may be asked on cross-examination if he was ever convicted of a felony or any other crime. Section 5242 provides that a defendant in such case “may be impeached as any other witness.”

VII. Error is assigned to the action of the trial court in permitting the State to show over the objection tempted to spirit Lillie Slingman away so ag prevent her testifying. Evidence is always admissible for the purpose of showing that the accused has attempted to procure false evidence or destroy evidence against himself. [State v. Mathews, 202 Mo. l. c. 149; State v. Alexander, 119 Mo. l. c. 461; State v. Alexander, 184 Mo. l. c. 274.] The ruling was correct.

VIII. It is claimed that the prosecuting attorney in his opening argument was allowed by the court to make statements which were prejudicial and improper. The only matter complained of in the prosecutor’s opening statement was a reference to the attempt of the defendant to spirit the witness Lillie Slingman away. The objection of defendant’s counsel was sustained, and the prosecutor made no further reference to the matter. Besides, it was competent to show such facts in evidence, and it was not improper for the prosecutor to mention it in his opening statement.

IS. It is further complained that the prosecuting attorney, and other attorneys hired to assist him, were unruly and made many prejudicial statements in the progress of the trial. The case appears to have been fought with a good deal of pertinacity on both sides. A careful examination of the record shows that the attornejrs for the defendant were quite as vigorous in their protestations as the counsel for the State. "We are not pointed to any particular instance where the counsel for the State transcended the rules of propriety in the conduct of the case and was sustained by the court; nor,'by careful examination of the record, do yre find any instance of that kind.

There being no error in the conduct of the case, the judgment should be affirmed.

It is so ordered.

White, G., concurs; Bailey, G., not sitting.

PER CURIAM:

The foregoing opinion of Mozley. C., is hereby adopted as the opinion of the court.

All concur,