text:
    THE STATE v. CHARLES SOVERN, Appellant.
    Division Two,
    February 12, 1910.
    1. INFORMATION: Amendment: Rearraignment: Assault With Intent to Kill. An allegation in an information charging an assault with intent to kill, t.o the effect that defendant did then and there give “to Charles W. Sovern” (the defendant) “in and upon the head and body of him the said Frank W. Lander with the pistol aforesaid two wounds,” etc., is immaterial and unnecessary under section 1847, Revised Statutes 1899, and hence there was no impropriety in permitting it to be amended by changing the name of Charles W. Sovern to Frank W. Lander, and hence defendant having been arraigned before the amendment it was not error to place him upon trial without rearraignment after the amendment, since the information without the said allegation charges a complete offense under the statute. It is not necessary, to establish the offense of an assault with intent to kill, to prove that wounds were inflicted. The Statute of Jeofails (Sec. 2535, R. S. 1899) may be properly invoked in such case.
    2. CONTINUANCE. Unless it is made manifest from the disclosures of the record that the sound discretion of the trial court has been improperly, unsoundly and arbitrarily exercised, the Supreme Court Will not hold that error was committed in denying defendant’s application for a continuance.
    3. TESTIMONY: Former Conviction. Proof that the prosecuting witness had formerly been convicted of a like offense cannot be made in the first instance by the testimony of a witness who had him arrested. The statute (Sec. 4680, R. S. 1899) prescribes a different method.
    4. THREATS: Instruction to Disregard. There was evidence of threats by the prosecuting witness against defendant and. his wife, such as called for an appropriate instruction on the subject, and the court instructed the jury that “the evidence of threats made by the complaining witness against the defendant was admitted in the case solely because there was evidence showing, or tending to show, that just before the complaining witness was shot, he was making or attempting to make an assault upon defendant, and if from all the facts and circumstances in evidence the jury believe that at the time, or just before defendant shot the complaining witness he was not assaulting or attempting to assault the defendant or making any hostile or apparently hostile demonstration toward defendant, then you are instructed to disregard and not in any way consider the evidence of threats made hy the complaining witness against the defendant in arriving at your verdict.” Held, not reversible error. Held, hy FOX, J., dissenting, first, that the instruction, especially the latter part of it, is obscure and misleading; second, that the jury should not be told to disregard the threats, hut they should he required to consider them up to the time of making their verdict where the real defense is self-defense.
    Appeal from Jackson Criminal Conrt. — PLon.E. E. Porterfield, Judge.
    Affirmed.

      J. M. Cole and Lowrance & Casey for appellant.
    (1) Tlie conrt erred in overruling’ defendant’s application for a continuance. The application complied fully with every requirement of the statutes. R. S. 1899, sec. 2600; State v. Anderson, 96 Mo. 241; State v. Farrow, 74 Mo. 531. (2) The court erred in not permitting the defendant to show the threats made against him and his wife hy the prosecuting witness the same day of the difficulty. State v. Sloan, 47 Mo. 604; State v. Keene, 50 Mo. 357. (3) These threats were admissible to show the character and strength of the feeling which prompted them. Sherwood Com. on Criminal Law of Mo., pp. 14-15; State v. Dickson, 78 Mo. 438; State v. McNally, 87 Mo. 650; State v. Bryant, 55 Mo. 75; State v. Downs, 91 Mo. 19; State v. Foley, 12 Mo. App. 431; State v. Alexander, 66 Mo. 148. (4) The court erred in sustaining the prosecuting attorney’s objection to the evidence of L. E. Moody. This was material evidence and admissible for the purpose of showing the violent and turbulent disposition of the complaining witness, and to affect his credibility made so by statute, R. S. 1899, sec. 4680. State v. Blitz, 171 Mo. 530 ; State v. Thorn-hill, 174 Mo. 364; State v. Spivey, 191 Mo. Ill; State v. Hensack, 189 Mo. 312. (5) The court erred in giving instruction 6 on tlie part of the State over the objections of the defendant. Threats made by the assaulted (or deceased as the case may be) against the defendant so near the time of the difficulty as to characterize the conduct and motive of the injured party in the ren-counter may be shown as bearing upon the question whether the defendant acted in self-defense, whether said threats were communicated to the defendant or not. In case at bar these threats were all communicated to the defendant. State v. Sloan, 47 Mo. 604; State v. Keene, 50 Mo. 357; State v. Harris, 59 Mo. 550; State v. Evans, 65 Mo. 574; State v. Harrod, 102 Mo. 609.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
    (1) Defendant did not complain of the information in the lower court. It is not subject to criticism, either in form or substance. It is an almost exact copy of a form heretofore approved. State v. Pros-ser, 137 Mo. 625; State v. Mulhall, 199 Mo. 205'. (2) The information as filed, according to the transcript of it in the record proper, was in no need of the amendment alleged by the bill to have been made. (3) The statute expressly authorized the amendment of the information and provides the remedy in case of surprise. Defendant took no steps to show “good cause” for delay. Sec. 2481, R. S. 1899; State v. Emerson, 188 Mo. 413. (4) Instruction 6 to the effect that threats made by Lander against defendant should be disregarded if the jury found that when shot Lander was making no hostile, or apparently hostile, demonstrations, is sound. State v. Spencer, 160' Mo. 123; State v. Plarris, 59 Mo. 552. The instruction tells the jury that if they believe that at the time the shooting occurred Lander was “not assaulting, or attempting to assault defendant, or making any hostile or apparently hostile demonstrations,” then the threats proved are not to he considered at all. If Lander was not making any “hostile or apparently hostile demonstrations against defendant,” then the defendant had no “reasonable ground to believe” that he was in danger, and his whole theory of self-defense crumbled. The threats were competent only in connection with the evidence tending to show self-defense. State v. Westlake, 159 Mo. 679.
   FOX, J.

The defendant in this cause has brought his case to this court by appeal from a judgment of the circuit court of Jackson county, Missouri, convicting him of an assault with intent to kill one Frank W. Lander. The information as amended, which was duly verified, upon which the defendant was tried, omitting formal parts, thus charges the offense against the defendant:

“Now comes Isaac B. Kimbrell, prosecuting attorney for the State of Missouri in and for the body of the county of Jackson, and upon his oath informs the court, that Charles Sovern, whose Christian name in full is unknown to said prosecuting attorney, late of the county aforesaid, on the 6th day of March, 1908, at the county of Jackson, State of Missouri, in and upon one Frank W. Lander, feloniously, willfully, on purpose and of his malice aforethought did make an assault; and the said Charles Sovern with a certain weapon, to-wit, pistol loaded with gunpowder and leaden balls, then and there feloniously, willfully, on purpose and of his malice aforethought did shoot off at, against and upon the said Frank W. Lander then and there giving to the said Frank W. Lander in and upon the head and body of him the said Frank W. Lander with the pistol aforesaid two wounds, with the felonious intent then and there him the said Flank W. Lander, feloniously, willfully, on purpose and.of his malice aforethought to kill and murder against the peace and dignity of'the State.”

During the course of the opinion we will give attention to the legal propositions suggested by counsel for appellant as to the amendment'of the information and the arraignment and re-arraignment of the defendant upon the charge preferred against him.

Upon the trial of this cause the testimony introduced by the State substantially tended to prove that the defendant and one Lander, the prosecuting witness, were, at the time of the assault, and for sometime prior thereto had been, competitors in business on East Fifteenth Street, Kansas City, Missouri. They occupied adjoining buildings. On the afternoon of March 6, 1908, Lander was standing in front of his place of business engaged in conversation with an insurance agent, when defendant emerged from his store and ordered Lander to “get away from there.” Lander told defendant he was “not bothering him.” Defendant at once drew his pistol and commenced firing. Lander had made no demonstration of any kind. The first and fourth shots went wild, the second passed through the back of Lander’s neck, and the third, fired while Lander was retreating, struck him in the back near the left shoulder blade, inflicting a dangerous wound. Lander was unarmed. There was also evidence tending to show that defendant, on previous occasions, had threatened to kill Lander, and that immediately before the shooting he came into his store, after passing Lander on the walk, declared that “if he comes over on my place I will shoot him,” procured a pistol from his desk, stepped out near where Lander was standing and, after the conversation detailed above, began firing.

The evidence on the part of the defendant tended substantially to show that the prosecuting witness had frequently, in conversation with third parties, threat-éned defendant’s life, accompanying his threats with opprobrious epithets. These threats were communicated to defendant. Defendant and his wife testified to numerous threats made by Lander against defendant’s life in their presence. They also testified that Lander, at various times, applied indecent epithets to Mrs. Sovern. Defendant’s account of the shooting is, in substance, that earlier in the day a difficulty had occurred between Lander and defendant. As a result of this and previous difficulties, defendant, after consulting his attorney, concluded to move across the street, and was engaged in moving when the shooting occurred. He had been down in the city on some errand in the afternoon, and upon his return was informed by his wife that Lander had been cursing her during his absence. Defendant procured his pistol, went out where Lander was, and told him to get off his (defendant’s) place. Defendant declared that Lander responded to this by saying, ‘ Glo to hell, you Irish son-of-a-biteh,” and “ran his hand in his pocket like he was going to pull a gun, and I pulled a gun and shot him.” Defendant testified that the reason he .shot was he thought Lander was going to shoot him. With respect to Lander’s effort to draw a pistol, defendant was corroborated by his wife, and to some ex-tern by his step-son. Defendant, when asked to explain his shooting Lander in the back, replied: “How did I know but what he was going to turn and do some more.” At one point in his cross-examination, when asked why he shot Lander, he answered, “Because I didn’t want him lurking around my place. I was paying rent for that place. ’ ’ Asked then if he shot because he “didn’t want Lander lurking around his place,” he replied, “He had cussed me and my wife and my whole family, and I didn’t think he had any business running my business while I was down town.” Defendant denied having threatened Lander. He explained a statement made shortly after the shooting, to the effect that Lander had shot at him first, by saying he was so nervous at the tune that he “hardly knew what happened.”

Defendant offered evidence that Lander’s general reputation for peace, quietude, honesty and veracity was bad, and that his own was good.

In rebuttal the State offered evidence to the effect that Lander’s general reputation for truth and veracity, peace and quietude was good.

Other evidence in rebuttal was to the effect that defendant, at the time of making the statement referred to, just after the shooting, was under the influence of liquor. Lander denied the threats against defendant attributed to him.

The record further discloses that prior to the commencement of the trial defendant-filed his application for a continuance, which was by the court overruled, to which ruling of the court proper exceptions were preserved.

At the close of the evidence the court instructed the jury upon all of the subjects to which there was any testimony applicable, 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 for a term of three years. Timely motions for new trial and in arrest of judgment were filed, and by the court taken up and overruled. Judgment and sentence were entered in conformity to the verdict, and from this judgment the cause is brought to this court by appeal, and the record is now before us for consideration.

OPINION.

The record in this cause discloses numerous complaints respecting the action of the trial court during the progress of the trial.

I.

The original information, after charging defendant, Charles Sovern, with shooting at Frank W. Lander, made this allegation: “Then and there giving to the said Charles W. Sovern, in and npon the head and body of him the said Frank W. Lander with the pistol aforesaid two wonnds, with the felonious intent then and there him the said Frank W. Lander, feloniously, wilfully, on purpose and of his malice aforethought to kill and murder against the peace and dignity of the State.” This information, over the objections of learned counsel for appellant, was, upon the application of the prosecuting attorney, amended by striking out the name of Charles W. Sovern, following the words, “then and there giving to the said,” and inserting in lieu thereof the name of the party charged to have been assaulted, Frank W. Lander, which allegation, as amended, was as follows: ‘ ‘ Then and there giving to the said Frank Yh Lander in and upon the head and body of him the said Frank W. Lander with the pistol aforesaid two wounds, with the felonious intent then and there him the said Frank W. Lander feloniously, willfully, on purpose and of his malice aforethought to kill and murder against the peace and dignity of the State. ’ ’

The record also discloses that the defendant was duly arraigned upon the original information and entered a plea of not guilty. He was tried upon the amended information without any further re-arraignment.

It is insisted, upon this state of the record, that it was essential to rearraign the defendant upon the information as amended, in the manner as heretofore indicated, and the record failing to disclose any arraignment of the defendant upon the amended information this constitutes such error as calls for the reversal of the judgment in this cause. After a most careful consideration of this proposition we are enable to give our assent to the contention of learned counsel for appellant.

The offense charged in this information is predicated upon section 1847, Revised Statutes 1899, and the defendant was charged, under the provisions of that section, with an assault with intent to kill by shooting at said Frank W. Lander with a pistol. This sem tion, so far as applicable to the offense charged in this information, provides: “Every person who shall, on purpose and of malice aforethought, shoot at or stab another, or assault or beat another with a deadly weapon, or by any other means or force likely to produce death or great bodily harm, with intent to kill . . . . shall be punished by imprisonment in the penitentiary not exceeding ten years.” This section of the statute has substantially been in its present form since 1835. It must not be overlooked that the offense with which the defendant is charged by the information is not for any felonious wounding or maiming of Frank W. Lander, but is a charge of shooting off a loaded pistol at, against and upon the said Frank W. Lander “with the felonious intent then and there him the said Frank W. Lander, feloniously, wilfully, on purpose and of his malice aforethought to kill and murder. ’ ’ Manifestly under the provisions of that statute charging the defendant with the commission of an offense of which he was convicted, it was not essential to make any allegation whatever respecting the infliction of any wounds upon Frank ’W. Lander, and the error or mistake to which our attention has been directed in the original information, which was amended, has reference to the infliction of wounds; hence we take it that, first, there was no necessity for amending the original information, for the reason that the allegation respecting the name of the party to whom the wounds were given, was immaterial, and may be treated as surplus-age, and so treating it the allegations in the information remaining were fully sufficient to cover every essential element constituting the offense of which defendant was charged. Second, it being an immaterial matter there was no impropriety, with the view of correcting a mistake in the name, in permitting the amendment to he made; and third, there was no necessity for any rearraignment under the information as amended.

It is clear that the allegations in the information to which reference has heretofore been made respecting the infliction of the wounds, may he carved out of the information and yet the remaining allegations would charge a complete offense under the provisions of section 1847, Revised Statutes 1899, for assault with intent to kill. This being true, in disposing of the immaterial and erroneous allegation respecting the infliction of the wounds, we can very appropriately call to our aid the Statute of Jeofails, which expressly provides that “no indictment or information shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected .... for any surplusage or repugnant allegations, when there is sufficient matter alleged to indicate the crime and person charged; nor for want of the averment of any matter not necessary to be proved .... nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” [Sec. 2535, R. S. 1899.]

Upon the trial of this cause there was no necessity, in order to establish the guilt of the defendant of an assault with intent to kill, to prove that wounds' were inflicted at all. The offense of which the defendant was tried and convicted was entirely complete when it appeared that he shot Frank W. Lander with the intent to kill him.

Ye see no necessity for discussing this subject further. The learned Attorney-G-eneral has furnished for our consideration a very able and exhaustive brief upon this proposition, and the numerous eases cited fully support the contentions of the State upon this question. Upon an examination of the adjudications in this State applicable to the question now under consideration, we find by a long line of decisions, all of which are cited in the brief of the Attorney-General, that many indictments and informations predicated upon the same section as the information in the case at bar, and containing no clause relative to the infliction of wounds, have been expressly approved by this court, commencing with the case of State v. Vaughn, in the 26th Mo. l. c. 30, followed by some fifteen or twenty cases approving the same sort of pleading, ending with the very recent cases of State v. Bartlett and State v. Harris in the 209th Mo.

While it is true that there are a number of cases which contain the allegation as to the infliction of wounds which have also met the approval of this court, the conclusions reached in those cases as to the sufficiency of the information were not predicated upon the theory that an allegation as to the wounding was essential in order to constitute a valid charge of an assault with intent to kill under the provisions of the statute as herein indicated.

II.

Appellant complains at the action of the court in denying his applications for a continuance. We have carefully considered in detail the averments embraced in those applications. In our opinion there was no error in denying the requests therein made. The granting of continuances by the trial court must necessarily rest to some extent with the sound discretion of such trial court, and unless it is made manifest from the disclosures of the record that such discretion has been improperly, unsoundly or arbitrarily exercised this court will decline to interfere with the action of the trial court upon that subject. [State v. Day, 100 Mo. 242; State v. Cochran, 147 Mo. 504; State v. Burns, 148 Mo. 167; State v. Fleetwood, 223 Mo. 69.

III.

It is next contended by learned counsel for appellant that the court committed error in its action excluding evidence offered by the defendant. Upon this proposition our attention is directed to the evidence offered by witness L. E. Moody. The inquiry was made of this witness about his having had the prosecuting witness fined two or three times. The witness was proceeding to answer the inquiry and stated that he had him fined two times. Another question was propounded, “Was it for an assault on you?” The answer to that question was, “An assault; yes, sir, once. That is him and his girl there together — this one right here (indicating).” Then the additional question was propounded, “He tried to kill you did he?” The State interposed an objection to this line of examination of this witness and the objection was sustained, and in our opinion properly so.

While under the provisions of section 4680, Revised Statutes 1899, it may be shown that a witness testifying in a cause, for the purpose of affecting his credibility and the weight to be attached to his testimony, has been convicted of some criminal offense, yet the proof of the conviction of such witness of some criminal offense must be by competent evidence, which is such evidence as is recognized by the law as being sufficient to establish the fact that the witness had been convicted. Section 4680, which provides for the introduction of evidence of that character, makes the suggestion that the inquiry may be made of the witness testifying as to his previous convictions of criminal offenses; if the witness should deny it, under the provisions of the statute it would not be binding upon the party making the inquiry, but resort could then be had to the only legitimate proof of the conviction of the witness, that is, the record of the court or docket of the justice of the peace showing that the witness had in fact been convicted. Manifestly the evidence as offered by witness Moody, stating in a general way that the prosecuting witness had been fined two or three times, was not a method of proof of such fact recognized by the well-settled rules of evidence, hence it follows that there was no error in the court excluding it.

Complaint is also made in this cause by counsel for appellant that the court erroneously and improperly excluded evidence of threats made against the defendant by the prosecuting witness on the day of the difficulty and recently prior thereto. We have carefully analyzed in detail the record concerning the action of the court in the admission and rejection of testimony and from such examinations we are unable to agree with counsel for appellant that the court excluded evidence of threats against the defendant offered in evidence. Learned counsel direct our attention to the pages of the record, where, it is asserted, the error complained of respecting the exclusion of evidence will be found. On page 139, the first objection to which our attention is directed, is where the defendant undertook to relate what his wife had stated. In other words, he was proceeding to state before the jury, “I went in and says, ‘What is going onU She says,. ‘What do you think, I told Lander to get off the place — .’ ” The prosecuting attorney objected to what his wife told him. This objection was sustained. The next objection by the prosecuting attorney was upon the same page of the record referred to. This objection was to the form of the question propounded to the defendant as a witness; he had been testifying and then followed this question: “Q. You had been told — ” Before the counsel fully completed his question the prosecuting attorney interposed an objection to the form of the question as being leading and suggestive. This objection was also sustained. Another question propounded by counsel was, “Q. And your wife had told you? A. My wife had told me to look out for him. They then told me he had drawn a gun on her.” The prosecuting attorney interposed an objection in this form: “We object to that and ask to have it stricken out. The Court: Stricken out.” Clearly the objection interposed by the prosecuting officer had reference simply to the statement that they had told the defendant the prosecuting witness had drawn a gun on her. We repeat, that the exclusions of the evidence by the court as indicated by the record do not constitute such error as would warrant this court in reversing the judgment.

Our attention is next directed to pages 186 and 187 of the record disclosing the action of the court concerning the admission and exclusion of certain evidence tendered by the defendant. The record discloses that Charles Sovern testified as a witness in behalf of the defendant. He answered fully a number of questions, testifying to threats made by the prosecuting witness against the defendant, and there was no objection made to the questions and answers and the court did not undertake to exclude them. Finally this question was propounded to him and he gave answer to it: “Q. They had been quarreling — I mean he had been quarreling at Mr. Sovern and making threats ever since he has moved out there? A. Ever since he had been in that building. Making threats at my mother, too. He had a gun in his hand one day— ” Before this witness had completed the last sentence, wherein he stated “he had a gun in his hand one day,” the prosecuting attorney interposed an objection in this form: “We object to any voluntary information on the part of this witness.” The record discloses that the objection was sustained, defendant preserving his exceptions. It will be observed that tbis witness bad testified to numerous threats in answer to questions propounded to bim and there was no objection, nor did the court exclude any of bis answers testifying to such threats. Manifestly the objection to any voluntary information by the witness which the court sustained had reference to that part of the question in which the witness, after answering* the question, started to relate something about the prosecuting witness having a gun one day. "While it is true the record is not entirely satisfactory upon that question — it is not clear and certain what information the court had reference to — yet in our opinion it is sufficiently indicated that the exclusion had reference not to the numerous threats that had been testified to by the witness, but to the concluding sentence of his testimony in which he started to relate about the prosecuting witness having a gun one day. The burden to show the error in the action of the court rests upon the appellant, therefore we take it that even though the record presents some uncertainty, yet this court would not be authorized in convicting the trial court of the commission of error unless it is plainly disclosed by the record.

After a most careful examination of the record we are clearly of the opinion that the court did not exclude, nor undertake to do so, any of the threatss made by the prosecuting witness against the defendant. The action of the court in excluding testimony manifestly had reference to certain questions, such as what his wife had said and about the prosecuting witness having a gun. This, in our opinion, falls far short of a sufficient showing of error in the admission or rejection of evidence to authorize the reversal of this judgment.

IY.

This brings ns to the consideration of the most serions proposition involved in the record before ns; that is, tbe challenge npon the part of the appellant directed to the correctness of instrnction numbered six. That instruction is as follows:

“The court instructs the jury that the evidence of threats made by the complaining witness, Frank W. Lander, against the. defendant, Charles Sovern, was admitted in the case solely because there was evidence showing, or tending to show, that just before the complaining witness, Frank W. Lander, was shot, he was making, or attempting to make, an assault upon the defendant, and if from all the facts and circumstances in evidence the jury believe that at the time, or just before defendant shot the complaining witness, Frank W. Lander, the said Frank W. Lander was not assaulting or attempting to assault the defendant or making any hostile or apparently hostile demonstration toward the defendant, then you are instructed to disregard and not in any way consider the evidence of threats made by the complaining witness, Frank W. Lander, against the defendant in arriving at your verdict.”

Directing our attention to the earnest insistence on the part of the appellant that this instruction does not correctly state the law, it is not out of place to state at the very inception of the consideration of this legal proposition that the evidence in the trial court fully warranted and in fact called for an appropriate instruction upon the subject of threats by the prosecuting witness against the defendant. There is no dispute about the question but what there was sufficient evidence of threats to justify the court to treat of that subject in its declarations of law to the jury. This much is practically conceded by both counsel for the respondent and the appellant, hence the only question confronting ns respecting instruction numbered 6, as herein indicated, is as to whether or not it appropriately and correctly presented that subject to the jury. The law is well settled in this State upon the proposition as to when threats are admissible and for what purpose. This rule, in accordance with the uniform expressions by this court when dealing with that subject, may thus be briefly stated: Uncommuni-cated threats by the party injured, where there is any conflict in the testimony as to who was the aggressor at the inception of the difficulty, are always admissible as explanatory of the acts and conduct of the injured party making such threats, as well as tending to prove who was in fact the aggressor in the commencement of the difficulty. For such purpose such uncommunicated threats are admissible and entitled to be considered by the jury. Threats on the part of the injured party against the defendant, if shown to have been communicated to the defendant, where there is any conflict in the testimony as to the action of the parties at the time of the fatal difficulty, are always admissible for a two-fold purpose. First, if the defense interposed is that of self-defense, of determining the question of the reasonable grounds of apprehension of danger on the part of the defendant at the time he-struck the fatal blow. Second, for the same purpose as uncommunicated threats, that is, in explanation of the conduct óf the parties at the time of the fatal difficulty, and throwing light upon the inquiry as to who was in fact the aggressor at the commencement of the difficulty. This rule is so firmly established in the jurisprudence of this State that we deem it unnecessary to cite authorities in support of it.

There are other questions applicable to the subject of threats that are equally well settled by the rules of law announced by this court touching that subject. Evidence of threats in cases of the character of the one at bar and other cases of similar character, is not admissible to justify an assault or killing of the party assaulted, and they do not in any way palliate, justify or excuse a defendant in assaulting or killing his adversary if at the time of the difficulty his antagonist was making no attack or assault upon such defendant, and was making no demonstration of violence toward him. In other words, threats alone are not admissible in the absence of any testimony requiring explanation of the acts and conduct of the parties upon the question as to who was the aggressor, and in the absence of any testimony whatever tending to show that such threats were going to be carried into execution. [State v. Rider, 95 Mo. 474; State v. Eaton, 75 Mo. 586; State v. Alexander, 66 Mo. l. c. 161-162; State v. Sloan, 47 Mo. 604; State v. Westlake, 159 Mo. 669.]

In State v. Eaton, supra, it was expressly ruled by this court that ‘ the person threatened has no right to take the life of the other, unless that other, when they meet, by his conduct manifests a purpose to carry the threat into execution; but such purpose may be manifested by conduct falling short of personal violence or an actual assault.”

In State v. Sloan, supra, it was said by this court that threats were admissible in evidence, not to justify or exculpate the slaying, if it should be found that the defendant was the assailant, but as circumstances to explain the act and show whether the defendant acted in necessary self-defense.

Instruction numbered 6 in the case at bar, now under consideration, was manifestly copied from the instruction disclosed by the record in State v. Spencer, 160 Mo. 118, and it was held in that case that the instruction was not erroneous. Speaking for myself, I fully concur in the conclusions by this court in the Spencer case, and the affirmance of the judgment in that case was manifestly proper; however, I am unable to give my assent to the approval of that instruction. Upon the facts disclosed by the record in the Spencer case there was no necessity for any instruction upon the subject of threats at all; in fact, upon that record the trial court would have been fully warranted in excluding any threats offered by the defendant upon the trial. It was said in that case' that the evidence on both sides clearly shows that the defendant deliberately sought the deceased; that deceased was making no effort to execute any threat previously made, if indeed he made any such, and did not' seek the difficulty with defendant, but endeavored to avoid it, and was not the aggressor. Under such circumstances the threats, if any, did not palliate or excuse the homicide.” Upon that state of the record, even though the instruction did not clearly present the law upon the subject of threats, the defendant was not in a position to complain for the reason that there was no substantial evidence which authorized the introduction of any evidence of threats, and as before stated, the court would have been fully warranted in declining to instruct upon that subject. But in a case like the one at bar, where there is substantial testimony as to threats having been previously made, not only against the defendant, but also as against his wife, I am of the opinion that the instruction is somewhat obscure, and the language employed in its form calculated to mislead the jury. Clearly no complaint could be lodged against such instruction in this case had the law been declared in harmony with the interpretation of the instruction in State v. Spencer. It was there said, concerning this instruction, that we think it plainly tells the jury that notwithstanding they may believe deceased made the threats imputed to him by defendant and his witnesses, yet, if from the facts and circumstances in evidence, including necessarily the threats which were in evidence under the sanction of the court, the jury believe that at the time or just before defendant sliot the deceased, the deceased was not assaulting or attempting to assault defendant and was not making any hostile demonstration or apparently hostile demonstration toward defendant, then such threats afforded defendant no justification for killing deceased.”

With the highest respect for the views of the learned judge who wrote the opinion in that case and those who concurred, in my opinion the instruction is not susceptible of the interpretation by this court as herein indicated. In harmony with the language used in the interpretation of the Spencer case, had the instruction in this ease directed the jury to include the evidence of threats in their consideration of the question as to the acts and conduct of the prosecuting witness at the time of the difficulty, followed with the. direction that if they found that he was making no hostile demonstration toward the defendant at that time, such threats would afford defendant no justification for such assault, then the misleading features would be absent and the law clearly and correctly declared. It will be observed that the instruction made no reference whatever as to what the jury might believe and find concerning the threats, nor does it intimate, except impliedly, that the threats were to be included in their consideration in the preliminary inquiry suggested by the instruction.

An instruction of substantially the same character as the one now under discussion was in judgment before this court in State v. Rider, 90 Mo. l. c. 59. One of the instructions was as follows: “The court instructs the jury, that if they believe from the evidence that prior to the killing of the deceased, the defendant prepared and armed himself with a gun, and went in search of, and sought out, deceased, with the intention of killing him, or shooting him, or doing him some great bodily harm, and that he did find, overtake, or intercept, deceased, and did shoot and kill deceased while he was returning from the river to his home, then it makes no difference who commenced the assault, and the jury shall not acquit the defendant; and the jury are further instructed that in such case they shall disregard any and all testimony tending to show that the character or reputation of deceased for turbulency, violence, peace and quiet was had, and they shall further disregard any and all evidence of threats made by deceased against the defendant.” Instruction numbered .3, which is referred to in the opinion in that case, was, as shown by an examination of the. files, one defining murder by lying in wait, and the concluding portion of the instruction was as follows: ‘'And if the jury find from the evidence that the defendant shot and killed the said Tallent as above stated then they are instructed to disregard any and all evidence to show that the general reputation of said Tallent was bad for turbulence, peace and quiet, and in such case the jury are also instructed to disregard any and all evidence tending to show that Tallent had made threats against defendant.” Discussing- these instructions, this court, speaking through Judge HbNiíy, said: “There was evidence of threats made by the deceased against the accused, and also of the turbulent and quarrelsome character of the deceased, and so much of the above, and of the third instruction given for the State, as relates to those matters, is a little obscure. The jury had a right to consider the threats made by the deceased and his character as a turbulent, dangerous man in determining the question as to who was the assailant, he or the defendant, and whether defendant had reasonable ground to apprehend, and did apprehend, that he was in imminent danger of sustaining great bodily harm at the hands of the deceased. It is not clear whether the instructions direct the jury to disregard that evidence in determining the other question, or, after having given them due consideration, they find the other facts against him. If the latter they are unobjectionable, hut, on a retrial, they should he more precise.”

It "will be noted that in that case, as in the case at bar, threats were admitted in evidence, and the same reason could be assigned as in the Spencer case, that the threats were at least impliedly included in the instruction for consideration by the jury, yet it was held that the instruction was obscure, hence not clear upon the subject. A careful analysis of the instruction in the Spencer case and the instruction in the Rider case demonstrates that while the same language is not employed in treating of the subject of threats, yet it is clear that they substantially present the subject of threats in the same manner; hence, the criticism indulged by the court in the Rider case is equally applicable to the case at bar.

This instruction now under consideration is obscure for the reason that it does not plainly direct the jury that such threats may be taken into consideration in determining who was the aggressor at the commencement of the difficulty, as well as the question of the reasonable apprehension of danger on the part of the defendant at the time the difficulty occurred. While it is true the instruction does say to the jury that the evidence of threats was admitted on the ground that there was evidence showing, or tending to show, that just before the complaining witness, Frank W. Lander, was shot, he was making or attempting to make, an assault upon the defendant, but that is followed by a declaration to the jury that “if from all the facts and circumstances in evidence the jury believe that at the time, or just before defendant shot the complaining witness, Frank W. Lander, the said Frank W. Lander was not assaulting or attempting to assault the defendant or making any hostile or apparently hostile demonstration toward the defendant, then you axe instructed to disregard and not in any way consider the evidence of threats made by the complaining witness, Prank W. Lander, against the defendant in arriving at your verdict.”

It will be observed that there is an entire absence of any direction to the jury to consider the threats in evidence in connection with the facts and circumstances detailed in evidence concerning- the acts and conduct of the prosecuting witness at the time of the difficulty,- hence, the instruction in that particular is somewhat obscure for the reason that it is not clear that the court intended, or the jury so understood the directions of the court, to include the consideration of the evidence of threats in determining whether or not the prosecuting witness was the aggressor. The misleading feature of this instruction is finally emphasized by the concluding portion of it where the jury is told that “if from all the facts and circumstances in evidence the jury believe that at the time, or just before defendant shot the complaining witness, Prank W. Lander, the said Prank W. Lander was not assaulting or attempting to assault the defendant or making any hostile or apparently hostile demonstration toward the defendant, then you are instructed to disregard and not in any way consider the evidence of threats made by the complaining witness, Prank W. Lander, against the defendant in arriving at your verdict.”

It will be noted, as heretofore indicated, that the jury had never been told to regard the evidence of threats or to in any way consider such evidence, and if the court contemplated by the direction in the instruction that the jury should, in the preliminary inquiry submitted to them, consider the threats, then the direction should have been that if they found that the prosecuting witness was not the aggressor, and was making no assault or hostile demonstration toward the defendant, then they should no longer regard such threats or give them any further consideration as evidence in the cause. In other words, such instruction is obscure in that it may he interpreted that while the threats were admitted in evidence, yet the consideration of them by the jury for any purpose was dependent upon the finding of the jury as to who was the aggressor at the commencement of the difficulty. Again, we repeat, that the jury were not directed to include the evidence of threats in their consideration of the facts and circumstances, but that the threats were there, and their consideration was dependent upon the finding of the jury as to who was the aggressor at the commencement of the difficulty. In other words, if you find that the prosecuting witness, Frank W. Lander, was not assaulting or attempting to assault the defendant, or making any hostile demonstration toward him, then you are instructed to disregard and not in any way consider the evidence of threats, but if you find that he was the aggressor and making hostile demonstrations toward the defendant, you will regard the threats and take them into consideration in arriving at your verdict.

The defense in this case was that of self-defense. The facts and circumstances as well as the threats in evidence touching such defense were before the jury from the túne of their introduction, and were fully entitled to their consideration until the final conclusion was reached. While it is true that threats alone do not and' should not justify, palliate or extenuate an assault upon or the killing of an individual, and the jury should be so directed, but when a proper showing is made which warrants the admission of threats, whether communicated or uneommunicated, in my opinion, the court should properly direct the jury as to the purposes for which such evidence may be considered, and require them to regard and consider such evidence until a final conclusion is reached upon the defense interposed and a verdict arrived at upon the issues presented.

The defense in this case was that of self-defense, and the evidence of threats, as well as the other facts and circumstances which tended to establish such defense, were entitled to the consideration of the jury until their final conclusion was reached upon the issue presented. The main issue was that embraced in defendant’s plea of self-defense; in fact, as to whether the defendant would he found guilty or acquitted of the charge against him was dependent upon the final conclusion reached by the jury upon that defense. Their verdict as returned is nothing more than giving expression to the conclusions reached upon the evidence before them upon the issues presented; hence, in my opinion, when the evidence of threats is competent and is admitted, such threats, as well as all the other facts, are entitled to the consideration of the jury until their final conclusion is reached, or in other words, should be considered in arriving at their verdict. It was misleading to direct the jury at any stage of the case to disregard and not in any way consider the evidence of threats in arriving at their verdict. Manifestly it is in arriving at the final conclusion or the verdict to be rendered giving expression to such final conclusions that the jury, in order to reach a correct conclusion, would naturally look to all the testimony upon which their verdict was to be predicated, and fully consider such testimony in arriving at their verdict.

If the instruction now under consideration had directed the jury that if from all the facts and circumstances in evidence they believed that at the time or just before the defendant shot the complaining witness, Frank W. Lander, said Frank W. Lander was not assaulting or attempting to assault the defendant or making any hostile or apparently hostile demonstration toward him, then you are instructed that the threats by the prosecuting witness against the defendant, introduced in evidence for your consideration, afford defendant no justification in making the assault upon tie prosecuting witness, nor do they tend to palliate or extenuate the commission of snch assault, then the ohscnrity in presenting this subject to the jury, as well as the misleading features of the instruction in its present form would he entirely relieved.

In my opinion, where self-defense is interposed as a defense to the accusation, when evidence of prior threats by the prosecuting witness or the deceased are admissible and received in evidence then there should be no stages at which such evidence of threats are not to be considered or at which they are to be disregarded and in no way considered by the jury, and while such threats alone, as heretofore stated, would not justify the commission of an assault or the killing of an individual, or in any way palliate or extenuate the commission of the offense, yet such evidence is before the jury until they reach a final conclusion upon the defense interposed and arrive at their verdict, and the jury should not be told to disregard and not to in any way consider such evidence of threats.

In State v. Shadwell, 26 Mont. l. c. 54, there was evidence admitted by the trial court of prior threats made against the defendant. Upon such evidence of threats the following instruction was predicated: ‘ ‘ The court instructs the jury that no threats or menaces made by the deceased, O’Connor, against the defendant, Shadwell, can avail the defendant unless he, at the time of the killing, was actually assailed, or had sufficient evidence to convince any reasonable person that he was in danger of incurring great bodily injury or of losing his life at the hands of the deceased. Whatever threats may have been made by the deceased, they cannot be of avail to the defendant, unless at the time of the killing something was done that would induce a reasonable man to suppose he was in danger of great bodily harm or of losing his life. All antecedent threats are dependent upon the facts at the time of the killing, and, in order to justify the homicide, it must appear that at the time of the killing there was some action which would induce a reasonable man to believe that he was in danger of great bodily harm or of losing his life.” It will be noted that in that instruction the court did not direct the jury to take into consideration the threats introduced, in connection with other facts and circumstances in determining the question as to whether the defendant was actually assailed or had sufficient evidence to convince any reasonable person that he was in danger of incurring great bodily injury or of losing his life at the hands of the deceased, and it may be that the court contemplated that the jury in making such preliminary inquiry, before the consideration of the prior threats, should take into consideration the evidence concerning such threats; however, the appellate court held that that instruction was erroneous and interpreted it to mean a direction to the jury to disregard all prior threats of the decedent against the defendant, unless something was done or some action taken by the decedent which would induce a reasonable man to believe himself in danger of great bodily harm or of losing his life, and that the conduct of the decedent at the time of the killing must of itself and independently of the antecedent threats have been sufficient to convince a reasonable person that he was in danger of great bodily harm or of losing his life at the hands of the decedent. In other words, that the prior threats of the decedent were not to be considered unless and until the evidence disclosed that the homicide was committed in necessary self-defense.

A similar ruling was made by the Supreme Court of Mississippi treating substantially of a similar instruction to the one now under consideration. [Johnson v. State, 66 Miss. l. c. 190.] To the same effect is Pridgen v. State, 31 Texas Reports 420, where it was held that if the defendant aside from any threats “must first prove that his antagonist manifested a hostile purpose by acts done at the time of the homicide, it would seem that antecedent threats of violence could he of no avail, because these acts of themselves would excuse, extenuate, or justify, according to their nature or grade. Thus the whole object of the law in acquainting the jury with previous threats would be defeated.”

Our attention is directed to the ease of State v. Rider, 95 Mo. 484, as supporting the contention of the State upon the correctness of the instruction now under consideration. That instruction clearly and correctly presented the law upon the subject of threats. The jury were directed in that case that although deceased had made threats against the defendant, that alone would not palliate, justify or excuse defendant, if at the time the defendant shot deceased deceased was making no assault or attack upon defendant and was making no demonstration of violence toward him. There is absolutely no obscurity in that instruction respecting the duty of the jury in the consideration of such threats, nor does it undertake to designate any particular time when such threats should be disregarded and not in any way considered by the jury in arriving at their verdict. This court, emphasizing the fact that the jury were in no way misled about the consideration of threats, said concerning that instruction: “Nor can anything therein contained be fairly construed to intimate to the jury that such threats might not be considered by them for any legitimate purpose in the case. ’ ’

Our attention is also directed to the case of State v. Westlake, 159 Mo. l. c. 679. An examination of that case will demonstrate that it does not in any way support the contention as to the correctness of the instruction now under consideration. In the Westlake case the trial court refused an instruction upon the subject of threats, and timely objections and exceptions were preserved to the action of the court in that respect, and this court in the discussion of that proposition, speaking through Judge Burgess, said: “We are unable to conceive under the facts disclosed by the record, how the defendant could have been prejudiced by the refusal of this instruction,” and then proceeded to detail the facts, which clearly indicated that there was no evidence upon which to predicate an instruction of that character.

Recurring to the case of State v. Spencer, we repeat, that the final conclusions reached in that case were manifestly proper, and the court would have been clearly warranted in declining to instruct at all upon the subject of threats. The disclosures of the evidence as contained in the record, by no means warranted an instruction upon that subject. Doubtless the learned judge, with a record before him that did not warrant any instruction at all, did not critically undertake to analyze the instruction given, but simply felt that upon the record in that case it was harmless, and therefore concluded that it was not erroneous, and in fact in that case it did not constitute any error of which the defendant had a right to complain.

I have indicated my views upon the propositions disclosed by the record in this cause, and I am unable to reach any other conclusion than that the instruction numbered six, complained of in this case, is, as was said by this court in State v. Rider, supra, a little obscure, and leaves it somewhat in doubt as to whether the court by that instruction intended that the jury should first find, upon the preliminary inquiry, who was the first aggressor, or whether or not the prosecuting witness was making any demonstrations toward the defendant before they should take into consideration the threats introduced in evidence. If a little obscure in the Rider case to the trained legal mind, manifestly it would be more so to those .wbo had had no experience or training along the line of interpreting declarations of law.

As before stated, paragraph four' is the expression of the views of the writer upon the proposition therein discussed; however, my associates do not concur in that paragraph; therefore I shall simply announce the conclusion of the majority of this division of the court, that is, that the judgment should be affirmed.

Gantt, P. J,, and Burgess, J., concur in paragraphs 1, 2, and 3, but dissent as to paragraph 4; Fox, J., dissents from the conclusions reached in this cause that the judgment should be affirmed.


source: Caselaw Access Project

author: GANTT, P. J.

license: Public Domain

text:
    THE STATE v. EDWARD COURT, Appellant.
    Division Two,
    February 12, 1910.
    1. LARCENY: Recent Possession: Presumption. Where property has been stolen and recently thereafter it is found in the possession of another, such other is presumed to he the thief; and in the absence of other rebutting evidence, if he fail to account for his possession of such property in a manner consistent with his innocence, this presumption becomes conclusive against him. And in this case defendant set at rest the question of his actual possession of the watch which was found in his washstand drawer, by immediately asking his wife, “You remember me giving a fellow a dollar on that watch last night?”
    2. FORMER CONVICTION: Sufficient Evidence: Same Name. Identity of name is prima-facie evidence of identity of person; and where the record of the same court shows a former conviction of a defendant of the same name and no evidence is offered to rebut this prima-facie case, that record is properly admitted in evidence to prove that defendant had previously been convicted of a crime.

      3. REMARKS OF CIRCUIT ATTORNEY: No Exception. It was improper for tlie circuit attorney to refer to tile failure of the '' defendant when on the stand to testify in regard to certain statements made by an officer who was a witness against him; but if there was no ruling of the court when defendant’s counsel said “I object,” and no exception was saved to the failure of the court to rule, the point is not open for review upon appeal.
    Appeal from St. Louis City Circuit Court. — Hon, Daniel D. Fisher, Judge.
    AFFIRMED.

      Henry M. Walsh for appellant.
    (1) There was no affirmative evidence to prove a larceny. State v. Keeland, 90 Mo. 337. The prosecution must establish each of the essential elements of the crime. To constitute a larceny there must be a trespass. State v. Stone, 68 Mo. 101. Larceny cannot be committed, generally speaking, unless the- taking is against the will of the owner. State v. Miller, 174 Mo. 518; State v. Storts, 138 Mo. 127. Possession of another’s property is not in any way evidence that the possessor stole it, where there is no independent evidence of any theft. State v. Sasseen, 75 Mo. App. 197. (2) There is no evidence to show the connection between the defendant and the Edward Court whose record was introduced by the clerk, Robert Walker, for the purpose of establishing the proof of the State’s charge, that the defendant is an habitual criminal. State v. Keeland, supra. (3) The comment of the circuit attorney in his closing address to the jury, as to the failure of the defendant to call his wife to testify, is against the statute. It was error to allow the prosecuting attorney, over the objection of the defendant and without rebuke from the court, to comment on what the defendant might have testified about, but did not, when on the witness stand. State v. Graves, 95 Mo. 510; State v. Elmer, 115 Mo. 401; State v. Fairlamb, 121 Mo. 137; State v. Guinn, 174 Mo. 680.

      Elliott W. Major, Attorney-G-eneral, and John M. Atkinson, Assistant Attorney-General, for the State.
    (1) At first the defendant denied having the watch, and after it was found in his possession in the washstand drawer, hid between certain articles of clothing, he then said to his wife, “You remember me giving a fellow a dollar on that watch last night?” Where property has been stolen, and recently thereafter it is found in the possession of another, such person is presumed to he the thief, and, in the absence of other rebutting evidence, if he fail to account for his possession of such property in a manner consistent with his innocence this presumption becomes conclusive against him. State v. Wright, 199 Mo. 166; State v. Walker, 194 Mo. 253; State v. Williams, ’54 Mo. 170; State v. Jennings, 81 Mo. 185; State v. Kelly, 73 Mo. 608; State v. Sidney, 74 Mo. 390; State v. North, 95 Mo. 615; State v. Crank, 75 Mo. 406. The taking of money or property may he either actually or constructively without the consent of the owner. State v. Littrell, 170 Mo. 13; State v. Waghalter, 177 Mo. 676. There is direct and positive evidence in this case that the watch was stolen from said Green while he was unconscious. State v. Moore, 101 Mo. 331. (2) The identity of name is prima-facie evidence of identity of person, and it devolves upon him who denies the identity to overcome the presumption. Hunt v. Searcy, 167 Mo. 167; Long v. Mc’Dow, 87 Mo.. 197; Hoyt v. Davis, 21 Mo. App. 235. (3) Complaint is made by appellant that the circuit attorney made certain prejudicial comments, in his closing argument to the jury, with regard to what appellant could have testified to hut did not.
   GANTT, P. J.

This is a prosecution by information for the larceny of one gentleman’s open-face gold watch, the property of Edward Green, of the value of seventy-five dollars, at the city of St. Louis, on October 20, 1907.

There was also an allegation in the information of a previous conviction of the defendant of attempted robbery in the first degree, and of a lawful compliance with the said sentence.

The testimony tended to show that the prosecuting witness, Oreen, was a fireman on the Frisco Railroad, and at times acted as engineer during the summer and fall of 1907; that on Sunday afternoon, October 20, 1907, said Oreen left his residence at number 3868. Shaw avenue and went to number 512 Spruce street, Avhere the defendant was engaged in the sale of liquor. Oreen first stopped at a restaurant, where he was joined by a man by the name of Rose, and another party who knew of defendant’s place of business. These three went to defendant’s place of business about 6:30 o ’clock that evening, they were there about twenty minutes, and during that time each took three drinks of whisky. On leaving, Oreen asked the defendant if defendant would admit him to his house again if he returned that evening, and defendant agreed to do so. Oreen returned alone to this place about 9:15 that night. He bought one drink of whisky and sat down by a table, and in the course of a few minutes the wife of the defendant came in and the following conversation took place. She asked Oreen if he ordered beer and he replied, “No, I did not order anything,” and she said, “That is all right, this is on the house,” and he said, “Very well, I will take a little whisky,” and she brought him over about half a glass of whisky and a glass of water, and he drank it, and that is the last he remembered. Oreen is positive that he had his watch when he went to this house the second time that night, and he knew nothing further after taking the second glass of whisky at the. insistence of the defendant’s wife, until he was ejected-from the building about 12 o’clock that night. On reaching the street he seemed to have recovered his consciousness and felt for his watch and missed it. Thereupon he went hack and took the number of the defendant’s place of business and- went to the Four Courts and notified- the police, and returned between one and two o’clock with the officer. When the police officers and Oreen reached defendant’s house and knocked on the door defendant’s wife came and first refused to admit them. On being informed that the officer would break down the door, they were admitted and found the defendant in bed undressed. The police officer testified that on the 21st of October, 1907, to his best recollection, Sergeant Anton, Officer Gem-mer and himself went to the defendant’s house, knocked on the door and defendant’s wife came to the door and let them in; defendant was in bed, the sergeant told him to put on his clothes. Defendant said: “What is this pinch for?” Sergeant said, “Never mind, put on your clothes,” and he again asked, “What is this pinch for?” and the sergeant then said, “We want that watch you got, belonging to this man.” Defendant said, “You got the wrong rack, I have not got any watch.” And thereupon the officer began to search the room. There was a little washstand there and the officer, Stevison, started to search that and opened the drawers, and between some underwear and stuff in it found the watch and handed it to Sergeant Anton. At this juncture the defendant turned to his wife and said: “You remember me giving the fellow a dollar on that watch last night?” Thereupon they arrested the defendant and took him to the station.

The watch was engraved on the outside with G-reen’s initials. The evidence tended to show the watch was worth seventy-five dollars, and it was fully identified on the trial by the prosecuting witness, Green. The indictment and judgment of conviction for attempted robbery as pleaded in the information was also offered in evidence, and a certificate from tlie warden of the penitentiary showing his discharge on that former conviction. The jury returned a verdict of guilty and assessed the defendant’s punishment in the penitentiary at a term of five years. Motions for new trial and in arrest of judgment were filed and overruled and defendant appeals.

I. The defendant insists that there was no affirmative evidence to prove the larceny. Of course there can he no larceny without a taking of the property against the will of the owner, hut defendant seemingly shuts his eyes to the fact that the proof established beyond a reasonable doubt that the prosecuting witness, Green, had his watch on his person in his place of business after nine o’clock of the night on which it was stolen, and that the evidence discloses that immediately after taking the drink of whisky at the solicitation of the defendant’s wife and in the presence of the defendant, the prosecutor became unconscious, and that afterwards when he was put out of the house about midnight, he at once discovered the loss of his watch and made complaint to the officer, who in a short time went with him to the defendant’s saloon, and there the watch was discovered hidden in a room of which the defendant was the possessor, and in this connection the proof subsequently shows that when the watch was found in this room in which the defendant was sleeping, the defendant at once said to his wife, “You remember me giving a fellow a dollar on that watch last night?” thus settling the question of the defendant’s actual possession of the watch at the time the officer found it in his room. Under these circumstances the presumption arising from the recent possession of stolen property is invoked by the State. Where property has been stolen and recently thereafter it is found in the possession of another, such other-person is presumed to he the thief, and in the absence of other rebutting evidence if he fail to account for his possession of such property in a manner consistent with Ms innocence tMs presumption becomes conclusive against Mm. [State v. Kelly, 73 Mo. 608; State v. Walker, 194 Mo. 253; State v. Wright, 199 Mo. 166.] Under the overwhelming evidence in the case there was no necessity of further proof of an actual taking and this point must be ruled against the defendant.

II. It is next insisted that there was no evidence to connect the defendant in this case with the defendant the record of whose conviction was offered in evidence to sustain a charge in the information of a previous conviction. The record offered in evidence was of a conviction of Edward Court in the city of St. Louis of the crime of attempted robbery in the first degree at the June term, 1899', of the circuit court of the city of St. Louis. As said by this court in State v. Moore, 61 Mo. l. c. 279: “It is true the magistrate could not state whether the Mary Cavender who was produced in court was the same person with whom the marriage of defendant took place, but this was not necessary. Identity of name is prima-facie evidence of identity of person, as this court has held on more than one occasion. In addition to that, the marriage -with Mary Cavender was not controverted, and it was proved by one witness, who had known her from girlhood, that she lived in Dade county, where the marriage of defendant took place, and was known by the name entered on the docket of the justice as having been married to defendant. ’ ’ In this case not only did the evidence show the conviction of Edward Court of attempted robbery in 1899, but that evidence goes further and establishes his conviction in the city of St. Louis, the same city in which the defendant was convicted in this case and in the same court. When these facts are taken in consideration and the further fact that the defendant offered not a word of testimony to rebut the prima-facie evidence of identity with the Edward Court, who had been convicted in the same city and court of robbery, we think his contention is without merit.

III. There is no merit whatever in the claim that the value of the watch was not fixed by competent evidence. [State v. Maggard, 160 Mo. 469.]

IY. The verdict, while slightly irregular, was in all substantial respects sufficient and responsive to the allegation of the information.

Y. As to the complaint that the circuit attorney made prejudicial comments in his closing argument, we have carefully read that portion of the circuit attorney’s argument copied into the brief of the defendant and find nothing which transcends legitimate comment, with the exception of a reference in one place to a failure of the defendant when on the stand to testify in regard to certain statements made by the officer who was a witness against him. As to that, however, there was no ruling of the court and no exception saved to the failure of the court to rule, and of course it is not open for review under these circumstances. It will not suffice for counsel to say, “I object and except,” without any ruling upon the part of the court. When the prosecuting attorney did make a reference to the failure of the wife to testify, the court at once promptly stopped the prosecuting attorney and rebuked him and directed the jury to disregard the reference to the wife and cautioned the prosecuting attorney not to refer to her any more.

In view of the prompt action of the court and its rebuke, we are unwilling to say that this verdict should be set aside on that ground. The testimony, if believed by the jury, as it evidently was, was amply sufficient to sustain the conviction, and the judgment of the circuit court is therefore affirmed.

Burgess and Box, JJ., concur.


author: BURGESS, J.

text:
    THE STATE v. JAMES J. McCAFFERY, Appellant.
    Division Two,
    February 12, 1910.
    ATTEMPT TO COMMIT ARSON: Completed Offense. Where the evidence is conclusive that the building was set on fire, that “the whole downstairs was afire” before the fire was extinguished, and that defendant was the- perpetrator of the offense, there is no evidence upon which to predicate an instruction for attempted arson; and defendant having been found guilty of an attempt to commit arson in the first degree, an instruction submitting that issue to the jury was reversible error.
    Appeal from St. Louis City Circuit Court. — Eon. Geo. H. Shields, Judge.
    REVERSED AND REMANDED.

      1. Joel Wilson for appellant.
    There can he no conviction for an attempt to commit an offense upon proof which shows that, if anything, the completed offense was committed. State v. Scott, 172 Mo. 536; State v. Bell, 194 Mo. 266; State v. Harris, 199 Mo. 716; State v. Clark, 221 Mo. 391. Under the evidence, either the defendant rwas guilty of the completed offense of arson or he was not guilty of any offense under the decisions above cited and see. 2361, Revised Statutes 1899'.

      Elliott W. Major, Attorney-General, and Chas. Q. Bevelle, Assistant Attorney-General, for the State.
    The evidence in the case is largely circumstantial, and tends to establish that some person saturated a quantity of rags with coal oil and placed them upon a box in the basement of the building underneath and next to the floor of the room used by the defendant for saloon purposes. They were so prepared and placed in such position that, when ignited by any person or means, they would, of necessity, set fire to the building. The evidence tends to prove that these rags were so saturated and placed in this position by defendant. The evidence further discloses that some person set fire to these rags, and that this resulted in the burning of the hole in the floor. Whether fire was set to the rags at the same time they were placed in this position, does not clearly appear from the record. Whether the defendant, his bartender, or some other person of his own accord, set fire to the rags, was .an equally mooted question, and one which it was the duty of the jury to settle. The defendant testified that he did “not set fire to the building,” and while, in our opinion, the evidence was amply sufficient to establish the completed offense, the jury was, nevertheless, warranted in giving weight to part of defendant’s evidence and finding him guilty of the lower crime. It is the duty of the court to instruct the jury upon every phase of the ease developed by the testimony, and, if there is evidence to sustain the completed offense, and evidence tending to show that it was only an attempt on his part, and that the completed offense was committed by some other person, the court should, by appropriate instructions, submit both questions, and a conviction of the lower offense will not be disturbed, unless the evidence establishes so clearly the consummation of the offense as to leave no support for the conviction. This is the rule in cases where, under section 2361, Revised Statutes 1899, a person cannot be convicted of an attempt if it appears that the attempted offense was actually perpetrated by such person, but this section has no application to cases such as the one at bar. This court has given effect to both sections 2361 and 2369, R. S. 1899, and held that they are not in conflict. State v. Lacey, 111 Mo. 513. Section 2369 governs in cases where the indictment charges an offense consisting of different degrees, while section 2361 is applicable to that class of crimes of which there are no degrees, such as rape. State v. Johnson, 91 Mo. 444; State v. Davidson, 73 Mo. 430; State v. Frank, 103 Mo. 122; State v. Scott, 172 Mo. 536. On numerous occasions this court has held that a defendant is in no position to complain because he was convicted of a lesser degree of murder, burglary, larceny, arson or other offense of which there are degrees, even if the testimony discloses his guilt of the higher crime, and there was no evidence warranting an instruction on the minor offense. State v. Jones, 106 Mo. 302; State v. Sebastin, 215 Mo. 78; State v. West, 202 Mo. 139; State v. Keeland, 90 Mo. 337. While the cases cited have reference to convictions of the lesser completed offense, yet the rule and principle governing therein are based largely upon sections 2369 and 2535, R. S. 1899, and the language of these sections is as specific in its reference and application to an attempt to commit an offense as it is to cases where the rule has been uniformly applied to the completed offense.
   BURGESS, J.

The defendant and one Alvin J. Ross, by an information filed by the assistant circuit attorney of the pity of -St. Louis, were jointly charged with the crime of arson in the first degree. When the cause came on for hearing a severance was granted, and, after arraignment and plea of not guilty, defendant was tried and found guilty of attempt to commit arson in the first degree, and his punishment assessed at two years inn the penitentiary. After unavailing motions for new trial and in arrest of judgment, the defendant was sentenced pursuant to the verdict, whereupon he appealed.

The testimony on the part of the State tended to prove that defendant was the proprietor of a dram-shop occupying the first floor of a two-story building located at No. 2701 Park avenue, in the city of St. Louis. The second story of this building was occupied by a Mrs. Dill and her family, as a dwelling house, and she, her son and a boarder were sleeping there on the night in question. It had been the custom of the defendant, according to the testimony, to close his saloon at about one a. m., but on the night of May 8, or rather, the morning of May 9, 1908, the saloon was found closed and locked at about 12:30 a. m. At 1:20 a. m., a night watchman discovered' smoke coming from the basement of said saloon, and he immediately ran towards the building. As he crossed the street he saw the defendant and one Ross coming out of the saloon through the front door, and while the defendant was locking the door the watchman told him that his place was on fire, and at the same time called his attention to the smoke then pouring through a trap door which led to the basement of the building. Defendant and Ross walked to the trap door, and one of them remarked that there was a fire, and that they would' go to the alarm box and turn in the alarm, the said alarm box being about a block distant. After waking up Mrs. Dill and her family and notifying them of the fire, and discovering that neither the defendant nor Ross had returned, the watchman went to the alarm box referred to and turned in the alarm. The fire department responded promptly, and when the assistant chief and a fireman, who drove to the fire in a buggy, reached a point about a block and a half from the fire, they saw two men running in a direction away from the saloon. Thinking that the alarm which had been turned in was. a false one, and that the fleeing men were guilty of the offense, the assistant chief and fireman got down from the buggy and pursued them. At the corner of Jefferson and Park avenues the men pursued parted, one going west on Park avenue, and the other running north on Jefferson. Both were soon caught, one of the men being the defendant and the other Ross. They were taken to the scene of the fire and were then committed to the care of a police officer. Neither man, when apprehended, nor while being taken to the saloon, said anything about the ownership of the property on fire. After the fire was extinguished an examination of the premises was made, when some partially burned rags and burlap, which smelled of coaloil, were found on the top of an ice box underneath the floor of the saloon. The top of the ice box was within a few inches of the floor, through which, and immediately above where the rags were found, a hole had been burned by the fire. The testimony was that but one alarm had been turned in from the alarm box above alluded to, and that was received at 1:25 a. m.

On the following day the defendant, while in custody, told the police officers that as he, in company with Ross, left the saloon,at 12:45 o’clock that morning some one called his attention to the smoke coming from the building, but that he did not investigate the fire because he did not think it was any of his business; and further stated that, after leaving the saloon, he went to the Quoits Club, and finding it closed, he sat down on a bread box, where he remained until he saw the fire department coming, and then ran to see where the fire was.

It was shown by the testimony that the. supplies, stock and equipment of the saloon, owned by the defendant, were insured for a thousand dollars.

On the part of the defendant the testimony tended to prove that about 12:30 o’clock that night defendant and Ross left the saloon, and that no smoke was at that time coming from the basement or other part of the building, and that the trap door leading to the basement was insecure, and could be opened by any person familiar with its condition.

The defendant testified that he did not set fire to the building; that he did not see the night watchman on the morning in question; that he was not informed that Ms saloon was on fire, and that neither he nor Boss said anything, about turning in an alarm. He further denied having made the statements attributed to him by the police officers after he was taken into custody. He testified that at the time he was apprehended by the assistant cMef of the fire department he was running towards his saloon. Several witnesses testified to the good reputation' of the defendant as a truthful and law-abiding citizen.

In his motion for new trial, and as one of the grounds therefor, defendant urges that the court committed error in giving to the jury an instruction on attempted arson, there being no evidence upon which to base such instruction.

The instruction in question is as follows: “If you find from the evidence that at the city of St. Louis, on or about the 9th day of May, 1908, or within three years next before the filing of the information herein, the defendant, James J. McCaffery, did wil-fully attempt to set fire to and burn the house of one Andrew Parle, in said city of St. Louis, as charged in the information, and that there was in said house at the time some human being, and that said house was a dwelling house as defined in these instructions, and that he did any act towards the commission of such offense, but failed in the perpetration thereof, or was prevented or intercepted in executing the same, then you will find him guilty of an attempt to commit arson in the first degree and assess his punishment in the penitentiary for a term of not less than two nor exceeding ten years. Acts on the part of the defendant, to constitute an attempt in this case, must be shown by the evidence to be such as were constituted and adapted to carrying into execution the design to wilfully set fire to and burn the house of Andrew Parle, as charged in the information.”

The jury, under this instruction, found the defendant guilty of an attempt to commit arson, and assessed Ms punishment at imprisonment in the penitentiary for two years.

Section 2361, Revised Statutes 1899', provides: “No person shall he convicted of an assault with an intent to commit a crime, or of any other attempt to commit any offense, when it. shall appear that the crime intended or the offense attempted was perpetrated by such person at the time of such assault or in pursuance of such attempt

The evidence was conclusive that the building in question was set on fire by somebody. When the firemen arrived, according to the testimony, “the whole downstairs back of the bar was afire,” and after the fire was extinguished rags and burlap, saturated with coaloil, and partially burned, were found immediately under a large hole made in the floor of the saloon,, by-the fire. This was strong evidence that somebody had intentionally set fire to the 'building, and t’he evidence pointing to the defendant as the perpetrator of the offense, though such evidence was of a circumstantial character, was, we think, equally strong. There was no one suspected save the defendant and his companion, Ross, and the evidence fails to connect anybody (Sise with the offense.

Under the evidence the defendant, if guilty of any \offense, was guilty of the completed offense of arson /in tbe first degree, as charged in the information, and \ there was no evidence upon wMch to predicate the instruction on attempted arson, which was, therefore, erroneous. [State v. Clark, 221 Mo. 391; State v. Scott, 172 Mo. 536; State v. Bell, 194 Mo. 264; State v. Harris, 199 Mo. 716.] The judgment is reversed, and the cause remanded.

All concur.


text:
    THE STATE v. JOHN D. HOWARD, Appellant.
    Division Two,
    February 12, 1910.
    BILL OF EXCEPTIONS: Not Identified. Where the bill of exceptions set out in the transcript is not properly identified or authenticated, it cannot be considered on appeal; and a judgment of conviction will be affirm.ed, if no error appears in the record proper.
    Appeal from Douglas Circuit Court. — Hon. Jno. T. Moore, Judge.
    Affirmed.

      Burhk&ad & Clarice for appellant.

      Elliott W. Major, Attorney-General, and Jofat Dawson, Assistant Attorney-General, for the State.
    The hill of exceptions is not authenticated nor identified, therefore there is nothing before the court but the record proper. Reno v. Fitz Jarrell, 163 M¿% 411'; State y. Baty, 166 Mo. 561; State y. Weinegardi, 168 Mo. 490'. (
   BURGESS, J.

The defendant appeals from a( judgment of the circuit court of Douglas county, Missouri, convicting him of the crime of embezzlement.

The transcript filed in this case contains what purports to be a bill of exceptions, but which is not properly identified or authenticated, and cannot therefore be considered. No error appearing in the record proper, the judgment must be and is affirmed.

All concur.