author: KENNISH, J.

text:
    THE STATE v. HARRY CONWAY, Appellant.
    Division Two,
    March 21, 1912.
    1. WITNESS: Coindictee: Not Indorsed on Indictment. A witness who was jointly charged by information with defendant, and whose name is not indorsed on the information, is competent to testify for the State in the separate trial of defendant, after a nolle prosequi has been entered as to such witness.
    2. BURGLARY AND LARCENY: Sufficient Evidence. Where the evidence showed that both the burglary and larceny had been committed by some one, and a gold watch and two or three hundred dollars in money taken, and there is testimony that defendant was in possession of the watch shortly after the burglary was committed, the evidence is sufficient to take the case to the jury as to both the burglary and larceny.
    8. -: Instruction: Not Preserved in Bill. The action of the court in refusing instructions on the subject of alibi, set out in the record proper but not made a part of the bill of exceptions, is not for review on appeal.
    4. -: Cross-Examination of Witness: Former Penitentiary Record of Defendant: Collateral Matter: Alibi. The defendant was charged with burglary and larceny of money and a watch, and interposed an alibi as a defense. The State had shown that a short time after the burglary defendant had gone to a saloon and exchanged ten dollars in silver for a ten-dollar bill. For the purpose of accounting for the fact that he had ten dollars in his possession, defendant called a witness who testified that defendant was usually employed and that he had been employed in another city for three or four years preceding the date of the offense. The prosecuting attorney, on cross-examination, asked the witness if he did not know that defendant was in the penitentiary during the time he had testified he was in said city. The defendant had not testified and had not introduced evidence of good character. Held, that it was error to permit the prosecuting attorney to cross-examine the witness as to defendant’s former imprisonment.
    5. -: -: -: -: -: Cured by Direction to Disregard. On cross-examination the witness testified that he had heard persons say that defendant was in the penitentiary during the time witness' had on direct examination testified he was in another city, and after defendant’s motion to strike out this answer was overruled the court, of its own motion, said: “That part which he heard will be stricken out and will not.be considered by the jury.” Held, that the error in permitting the prosecuting attorney, on cross-examination, to ask the witness if defendant was not in the penitentiary during the time he had testified he was in another city, was not cured by the action of the court in striking out what the witness heard and directing the jury to disregard it. The court did not strike out the previous cross-examination relating to defendant’s former imprisonment, and that was the prejudicial -matter in the cross-examination. Besides even had the court stricken that out, it is doubtful whether thereby the unfavorable impression the jury had received of defendant’s character and reputation would have been removed from their minds, so as to cure the error.
    6. -: Instruction: General Verdict: Separate Offenses. Burglary and larceny may be joined in the same information, but they are separate and distinct offenses, and upon a trial the jury may acquit of both, or convict of both, or convict of one and acquit of the other; and an instruction that requires them to convict of both or acquit of both, with no instruction or provision for separate verdicts, is error.

      7. -: -: No Exception: No Request, Although no exception was saved to an erroneous instruction given for the State, or .to a failure to instruct on all the law of the case, and no other objection was made except that in the motion for a new trial it was assigned as error that the court “erred in failing to instruct on the whole law governing the case,” the defendant is entitled to a reversal of the judgment of conviction of both larceny and burglary on the ground that the court failed to instruct the jury on all questions of law “necessary for their information in giving their verdict,” as the statute (See. 5231, K. S. 1909) specifically requires. The court should have given instructions providing for a separate verdict as to the distinct offenses, whether requested or not, and whether or not an exception was saved to its failure to do so, a failure to so instruct will work a reversal on appeal.
    8. -: -: -: Non-Direction. Non-direction, with or without exceptions saved, is error in a felony case. There is an inherent difference in this regard between civil and criminal cases, some of which are enumerated in the opinion. Besides, the statute specifically requires instructions to the jury, “whether requestel or not, upon all questions of law arising” in a criminal case “which are necessary for their information in giving their verdict;” and into that statute cannot be read the proviso that non-direction in a felony case is not error which will warrant a new trial unless it affirmatively appear that the court’s attention was called to the question on which an instruction was desired and an exception saved at the time to its failure to so instruct.
    9. -: -: -: -: In Felony Cases: Statute. The provision in said Sec. 5231, R. S. 1909, requiring correct instructions to be given in a criminal case, “whether requested or not,” that “a failure to so instruct in cases of felony' shall be good cause, when defendant is found guilty, for setting aside the verdict of the jury and granting a new trial,” distinguishes misdemeanors from felonies in the matter of non-direction. It has always been the rule that the failure to give necessary instructions in a misdemeanor ease when requested, if.exception is saved to such failure at the time, will work a reversal; and these words in the statute are entirely meaningless unless they mean that a failure to give necessary instructions in a felony case, whether requested or not, or whether or not an exception is saved to such failure, will work a reversal in a felony case.
    10. -: -: -: -: Motion for New Trial: General Assignment: Usually Insufficient: Exception. The motion for a new trial should call the, court’s attention to 241 Sup — 18 the specific point of law on which it is claimed the court failed to instruct; otherwise, it'will ordinarily be insufficient; but where an examination of the record reveals that the court failed to instruct on a matter of law that goes to the fundamental rights of the defendant, and that by such failure injustice may have been done, or a verdict returned which would not have been had such failure not occurred, the Supreme Court, in the interest of justice, will grant a new trial, though the point be presented in it for the first time.
    Appeal from Greene Criminal Court. — Mon. Alfred Page, Judge.
    Reversed and remanded.

      Talma 8. Mefferman for appellant.

      Elliott W. Major, Attorney-General, and JoTm M. Dawson, Assistant Attorney-General, for the State.
    (1) It is not necessary that the information describe any property kept in the house, or allege that the goods, wares, merchandise or other valuable thing kept therein was the subject of larceny. State v. McGuire, 193 Mo. 215; State v. Helms, 179 Mo. 280. (2) Where the State calls a witness whose name is not endorsed on the information, defendant, when said witness is called, should move for a continuance on the ground of surprise; and if he fails'to do that, he waives any right to complain by reason of surprise. State .V. Whitsett, 232 Mo. 511; State v. Henderson, 212 Mo. 213; State v. Manning, 168 Mo. 418; State v. Barring-ton, 198 Mo. 23; State v. Myers, 198 Mo. 225; 1 Bishop’s New Crim. Prac., sec. 869a; Ballard v. State, 19 Neb. 609; State v. O’Day, 89 Mo. 559. (3) Duncan was asked if he knew appellant had been in the penitentiary. He answered he did not know, but he heard that he was, to which appellant objected and the court sustained- the objection as to the part the witness heard. The court stated that that part would be stricken out and would not be considered by the jury. (4) Instruction 1 concisely defines the offense in the language of tfie statute and the punishment as announced by the statute and properly defines the word “feloniously.” R. S. 1909, sec. 4520. (5) Instruction 2 is properly based upon the evidence as to the condition of the door by which the entrance was made into the saloon, and also properly defines “larceny.” State v. Henderson, 212 Mo. 208; State v. Howard, 203 Mo. 600. (6) Instruction 3 was a proper instruction upon the recent possession of saloon property. The recent possession of saloon property, taken at the time of the commission of a burglary, is sufficient to justify the jury in finding that the persons in whose possession the same is found was guilty of the burglary as well as the larceny. 1 Greenleaf on Ev., sec. 134; Wigmore on Ev., sec. 153; 4 Elliott on Ev., secs. 2725, 2918; State v. Hammond, 203 Mo. 604; State v. Toohey, 203 Mo. 678; State v. James, 194 Mo. 277; State v. Moore, 117 Mo. 404. (7) In the record proper is incorporated two refused instructions both upon alibi. These instructions are not for review in this court. They are not incorporated in the bill of exceptions. Clerk v. Hughes, 73 Mo. App. 633; Johnson v. Greenleaf, 73 Mo. 671; State v. Johnson, 81 Mo. 60; McLain v. Winchester, 17 Mo. 49; Cline v. Askins, 39 Mo. 39; Montgomery v. Hughes, 81 Mo. 63. (8) The verdict is certain, definite and responsive to the issues joined. It finds appellant guilty of both burglary and larceny and assesses his punishment separately for each offense and no objection can be made as to the form of the verdict.
   KENNISH, J.

— Appellant, Harry Conway, Bert Drinkwater and Will Kennedy were jointly charged by information in the criminal court of Greene county, at the April term, 1910, with the crimes of burglary and larceny, alleged to have been committed April 13, 1910. Appellant applied for and was granted a severanee. Tie was tried, convicted of both burglary and larceny, and his punishment assessed at imprisonment in the penitentiary for a term of seven years for the burglary and three years for the larceny. He appealed to this court, but is not represented here by counsel, nor has he filed a brief.

The corpus delicti of each of the crimes charged was fully proven by undisputed testimony. The building burglarized and in which the larceny was committed was a saloon in the city of Springfield. It was shown by the testimony that on the night of April 12, 1910, a sum of between two hundred and three hundred dollars and a gold watch were deposited in the safe, and that the saloon was closed and the doors locked at midnight. At five o’clock the next morning it was learned that the saloon had been burglarized, the safe dynamited and the money and watch stolen. A few days after the burglary, Kennedy, coindictee of appellant, pawned a gold watch in said city, which was identified as the watch stolen from the saloon. During appellant’s trial the prosecuting attorney nolprossed the case against Kennedy, and thereupon he testified for the State that appellant gave bim the watch and that he pawned it at his request and under his directions. Witness Duke, with whom the watch was pawned, testified that appellant came to him and asked him for more money on a watch, after the watch in question had been pawned, but he further testified that appellant pawned a silver watch with him, on which he then owed appellant a dollar and a half, and that nothing was said by appellant inconsistent with the theory that he had in mind the silver watch and was asking for the balance due on it. There was testimony that appellant, shortly after the burglary, went to a saloon and exchanged ten dollars in silver for a ten-dollar bill, but the witness who testified to that fact said that appellant generally had money and that there was nothing unusual in seeing him with ten or fifteen dollars in his pocket. That was the only evidence of appellant’s possession of the money charged to have been stolen.

Appellant interposed a defense of alibi, and in support thereof it was shown that he was under arrest the night of the burglary, for the violation of a city ordinance, and was not released by the police until about two-thirty or three o’clock in the morning; that the police interviewed appellant’s mother, who agreed to pay his fine, and that he was then released. Appellant’s mother and sister testified "that appellant came home immediately after his release; that after talking awhile he went to -bed in a room adjoining theirs, having removed his shoes and hat in their room, as was his habit, and that he did not leave his room the remainder of the-night.

The appellant, evidently for the purpose, of accounting for the fact that he had ten dollars in his possession a few days after the burglary was committed, called a witness named Duncan, who testified that appellant was usually employed; that he had been employed in Kansas City for three or four years preceding the date of the offense. The prosecuting attorney, on cross-examination, asked the witness if he did not know that appellant was in the penitentiary during the time the witness had stated he was in Kansas City. The question was objected to and the objection was overruled, the court stating, “It is competent for the purpose of determining whether this witness knows he was in Kansas City.” The witness answered that he did not know how many times he had been in the penitentiary. When further asked if he knew he was in the penitentiary during the time about which he had testified, the witness said: “I don’t know whether he was ever in the penitentiary; I hear them say he was.” Appellant moved that the answer be stricken out and the motion was overruled. After the motion was overruled and the ruling excepted to, the court, of its own motion, said: “That part which he heard will be stricken out and will not be considere I by the jury.”

I. In the motion for a new trial complaint is made of the action of the court in overruling defendant ’s motion to quash the information. The motion to quash assailed the information as being vague and indefinite and as failing to charge the defendant with the commission of any offense. We have carefully examined the information, and it is in conformity with approved precedents. [State v. Watson, 141 Mo. 338; State v. Moss, 216 Mo. 436.]

II. Another complaint in the motion for a new trial was that the witness Kennedy should not have been permitted -to testify as a witness for the State because his name was not indorsed on the information. It has been repeatedly held by this court that it is not error to permit a witness, whose name is not indorsed on the indictment or information, to testify for the State. [Sec. 5097, R. S. 1909; State v. Steifel, 106 Mo. l. c. 133; State v. Henderson, 186 Mo. l. c. 482; State v. Myers, 198 Mo. l. c. 247.]

III. Objection was also made that Kennedy was not a competent witness against the defendant because he and defendant were jointly charged in the information with the offenses for which defendant was on trial. The defendant was being tried separately. During the trial a nolle prosequi was entered as to Kennedy. When the case was nol-prossed as to him he became a competent witness. [Sec. 5241, R. S. 1909; State v. Beaucleigh, 92 Mo. 490; State v. Walker, 98 Mo. 95; State v. Steifel, 106 Mo. 129.]

IV. Defendant’s instruction in the nature of a demurrer to the evidence was properly overruled. The evidence clearly showed that both the burglary and larceny liad been committed by some person. There was testimony that defendant was in possession of a part of the stolen property shortly after the burglary was committed. Such evidence was sufficient to take the case To the jury as to both the burglary and the larceny. [State v. Owens, 79 Mo. 619; State v. James, 194 Mo. 268; State v. Toohey, 203 Mo. 674.]

Y. The refusal of the court to give two instructions on the subject of alibi, requested by the defendant, is also assigned as error in the motion for a new trial. The two instructions are set out in the record proper, but are not made a part of the bill of exceptions, and therefore the action of the court in refusing them is not before us for. review. [State v. Glasscock, 232 Mo. 291; State v. Little, 228 Mo. 273; State v. Earll, 225 Mo. 537; State v. Finley, 193 Mo. 202.]

YI. The objections interposed to the cross-examination of the witness Duncan, concerning appellant’s former imprisonment in the penitentiary, should have been sustained. .Appellant had not testified as a witness and had not introduced evidence of good character. As he had not injected such an issue into the case, it was not competent for the State to thus assail his character and reputation. When competent evidence is offered tending to show the commission of the offense charged, it is no objection thereto that such evidence also shows the accused to be guilty of another crime. But the question presented here is this: Is it proper to permit the State, on cross-examination of a witness for the defendant, when the character or reputation of the defendant is not in issue, to test the credibility of the witness as to a collateral matter about which he has testified, by asking him whether he does not know that the defendant was in the penitentiary on a given date? The question thus presented, so far as we have been able to find, has not been passed upon by this court, but authority on the question is not lacking.

In Bishop’s New Crim. Proc. vol. 1, sec. 1122, the author says: “Cross-examinations of witnesses, and evidence to discredit them, whereby irrelevant matters is sometimes not improperly brought out, will not be permitted a scope disclosing what tends to prove an irrelevant other crime; for this, under the pretense of justice, would be a wanton prejudice to the defendant. ’ ’

In the case of State v. Eder, 36 Wash. 482, the court had before it a question similar to the one now under consideration. In that case the wife of a defendant on trial, testifying as a witness in his behalf, stated in her direct examination that she and the defendant were married in the year 1898. On cross-examination, for the purpose of discrediting her testimony, she was asked if the defendant was not in the penitentiary in the year 1898. The court held that such cross-examination was improper and prejudicial to the defendant, and on that ground alone reversed and remanded the cause. In the opinion in that ease the court said: “While it is sometimes-stated that any circumstance which tends, in the remotest degree, to affect the credibility of a-witness can be shown on cross-examination of such witness, yet the rule is not without exception. The fact shown must have a tendency to accomplish the purpose intended, and must not be something which of itself tends directly to prejudice the defendant in the minds of the jury. A defendant can be prejudiced, of course, by showing that his witness is unworthy of belief, but the State cannot, under the guise of impeaching a witness show facts which tend directly to prejudice the defendant, but which only remotely, if at all, discredit the witness.”

The same limitation is placed upon the right of the State in the cross-examination of witnesses for the defendant in the cases of Hoberg v. State, 3 Minn. 262, and Hamilton v. State, 34 Oh. St. 82.

In our opinion the doctrine announced in the f ore-going authorities is sound, and we hold that it was error to permit the prosecuting attorney to cross-examine the witness as to appellant’s former imprisonment.

Nor do we think the error was cured by the action of the court in striking out “what the witness heard” and telling the jury to disregard that part of the testimony. The defendant made timely objections to the questions. He also moved that the testimony be stricken out. Had the court sustained the motion and struck out all of the cross-examination relating to the former imprisonment, and told the jury that none- of it should be considered in arriving at their verdict, it would still be doubtful whether that would have removed from the minds of the jury the unfavorable impressions they had received of the defendant’s character and reputation, so as to cure the error. But when the court permitted the cross-examination over the defendant’s objections, and overruled the motion to strike the testimony out, the subsequent ruling by the court that what the witness had heiard would be stricken out and should not be considered by the jury, cannot be said to have cured the error. The language of the court necessarily implied, and the jury naturally understood, that a part of the testimony as to the former imprisonment of the defendant in the penitentiary remained in the case for- their consideration.

1 VII. The court, upon the request of the State, gave the following instruction:

“If you find and believe from the evidence in the case that the defendant, either alone or together with another or others, at any time within three years next before the llth of May, 1910, at the county of Greene and State of Missouri, did feloniously and burglariously break into and enter a building located at numher 238 on West Commercial street in the city of Springfield, Greene county, Missouri, which, said building was then occupied as a saloon building by J. P. King, and in which said building there was at the time divers goods, wares, merchandise and valuable things kept and deposited, with intent then and there feloniously and burglariously to steal, take and carry away any .of said goods, wares, merchandise and valuable things in said building then and there being, and two hundred and ten dollars, in money, of the value of two hundred and ten dollars, and one gold watch and chain, of the value of thirty-five dollars, or any portion of said money or property of any value whatever, in said building then and there being, and the property of J. P. King, feloniously and burglariously did steal, take and carry away, then you will find the defendant guilty of both burglary and larceny, and for the burglary you will assess his punishment at imprisonment in the State penitentiary for as long a term as you may deem proper, not less than two years; and for the larceny you will assess his punishment, in addition to the punishment fixed for the burglary, at imprisonment in the State penitentiary for a term of not less than two nor more than five years.
“ ‘Feloniously’ means unlawfully, against the solemn admonitions of the law.”

Other'instructions were given which correctly instructed the jury as to the presumption of guilt of the burglary and larceny arising from the possession of property recently stolen, in connection with the other facts and circumstances in evidence. No instruction was given directing the jury that they might convict of the burglary and acquit of the larceny, or convict of the larceny and acquit of the burglary, accordingly as they should find and believe from the evidence, and the jury was left with an instruction that authorized only a conviction of both offenses or an acquittal of both. There are blank forms of verdicts found in the record, without auy explanation, from which it. would appear that .the court had in mind the right of the defendant to have his cause submitted on the theory that the jury might convict of one of the felonies charged and acquit of the other, but these forms were not supported by any instruction, and the question arises, was the failure to give such an instruction prejudicial error?

No exception was saved at the time to the failure of the court to give such an instruction, or to the failure to instruct on all the law of the case, but one ground of the motion for a new trial was “because the court erred in failing to instruct the jury on the whole law governing the case.”

The record thus-fairly presents the question: Is the appellant entitled to a reversal of the judgment and to a. new trial on the ground that the court failed to instruct the jury on all questions of law “necessary for their information in giving their verdict?” It is the settled law of this State that although burglary and larceny may be joined in one indictment, as authorized by statutes, they are nevertheless separate and distinct felonies, and upon a trial the jury may convict or acquit of both or of either. ‘ ‘ That the jury could find the defendant guilty of burglary and fail to find him guilty of larceny, there can be no doubt, even thoiTgh the testimony abundantly established the larceny as well as the burglary.” [State v. Howard, 203 Mo. l. c. 604; State v. Kelsoe, 11 Mo. App. 91; Id., 76 Mo. 505; State v. Nicholas, 222 Mo. 425; State v. Lackey, 230 Mo. 707.] According to the foregoing authorities it was necessary for the information of the jury that they should have been instructed as to their authority under the law to convict of one felony and acquit of the other.

The further question arises as to whether the failure of the court to instruct the jury upon such question of law has been preserved for review in this court.

It is provided by section 5244, Revised Statutes 1909, that, “the court may instruct the jury in writing on any point of law arising in the cause, ” and by the next succeeding section that, “on the trial of any indictment or prosecution for a criminal offense, exceptions to any decisions of the court may be made in the same cases and manner provided by law in all civil cases. . . . ” These sections have long been a part of the criminal procedure of this State, and even before the enactment of the present statute upon the subject of instructing the jury in criminal cases, this court held that it was the duty of the trial court to instruct the jury on the essential elements of the crime charged, and that a failure so to do, whether requested or excepted to or not, was reversible error. [State v. Kilgore, 70 Mo. 546; State v. Branstetter, 65 Mo. 149; State v. Stonum, 62 Mo. 596; State v. Jones, 61 Mo. 232; State v. Matthews, 20 Mo. 55.] In so holding this court necessarily distinguished between civil and criminal cases, for in the former non-direction is not error. We think the distinction thus made is founded on sound reason. There is an inherent difference, so far as the necessity to instruct is concerned, between the two classes of cases. We shall not attempt to enumerate such differences, but we call attention to the following: In a civil case the jury have all the issues and the relief prayed for set forth in the pleadings, and therefore have information to enable them to act intelligently in returning a verdict, without instructions from the court. In a criminal case, although the jury is required by law to fix the punishment, even in capital cases, there is no guide or information available to them for that purpose and in the absence of instructions they would be left to grope in the dark. This fact is referred to in the case of State v. Nicholas, 222 Mo. 425. In civil cases the interests of the opposing parties are always antagonistic, while in a criminal case the State does not maintain the same relation to the litigation or to the defendant as a plaintiff in a civil case. The State is concerned alone in the enforcement of the law and in inflicting punishment only in case of guilt. There is no such procedure as judgment by default in a criminal case. The accused must appear in person, and as frequently occurs he is without counsel, or his counsel is not of his own choosing and is compelled to serve without remuneration. These and other considerations which might be mentioned doubtless caused the enactment of the law imposing upon a court learned in the law and paid for his services, a duty which in the interest of public justice could not be shifted upon a defendant, ignorant of his rights, or upon inexperienced and unpaid counsel. Therefore in 1879 the Legislature of this State enacted a law making it the mandatory duty of the court to instruct the jury in criminal cases, while no corresponding law has ever been enacted as to civil cases.

By that statute (Sec. 5231, R. S. 1909), it is provided that: “Whether requested or not the court must instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in giving their verdict; which instructions shall include, whenever necessary, the subjects of good character and reasonable doubt; and a failure to so instruct in cases of felony shall be good cause, when the defendant is found guilty, for setting aside the verdict of the jury and granting a new trial.”

Notwithstanding the apparently mandatory character of . the language of the statute it is maintained, and in a number of cases it has been held, that non-direction of the jury upon the law in a criminal case is not error which will warrant a new trial unless it affirmatively appears that the court’s attention was called to the question on which an instruction was desired and an exception saved at the time to the court’s action. That view of the law means that while the Legislature has expressly said that a failure of the court to do a certain act shall be g’ood cause for setting aside the verdict and granting a new trial, a proviso should be implied to the effect that such failure shall not so entitle the defendant unless he requested an instruction and excepted to the court’s action in failing to give it. • This contention is made notwithstanding the fact that the law provides that a request shall not be necessary, and notwithstanding the well-recognized principle of law that criminal stautes are uniformly construed strictly in favor of the accused.

The construction of the statute as to the necessity of a request for the instruction desired and an exception at the time to the court’s failure to give it, was first announced, and without referring to the'statute, in the case'of State v. Bond, 191 Mo. 555. That case was followed by this court in a number of later cases. But this court has always held, even while following the doctrine of the Bond case, that if an erroneous instruction was requested by a defendant, then it became the duty of the court to give a correct instruction upon that question, and no exception for failure to do so was necessary in order to preserve the court’s action as a ground for new trial and for review on appeal. [State v. Matthews, 20 Mo. 55; State v. Jones, 61 Mo. 232; State v. Stonum, 62 Mo. 596; State v. Lowe, 93 Mo. 547; State v. Davis, 141 Mo. 522; State v. Adler, 146 Mo. 18; State v. Brinkley, 146 Mo. 37; State v. Clark, 147 Mo. 20; State v. Reed, 154 Mo. 122; State v. Fannon, 158 Mo. 149; State v. Moore, 160 Mo. 443; State v. Barton, 214 Mo. 316.] That rule is clearly a departure from the law of exceptions in civil cases, and to ■ that extent gives effect to the statute making it the duty of the court to instruct in criminal cases.

In the case of State v. Nicholas, 222 Mo. 425, the court did not follow the Bond case. Answering the contention of the State that the defendant had not requested an instruction and therefore could not he heard to complain, this court (1. c. 434) said: “But aside from all this it was plainly the duty of the court, by its instructions, to require the jury to find all of the essential elements of an offense embraced within the charge, and designate to them the nature and character of the punishment they were authorized to assess.”

The doctrine of the Nicholas case was reaffirmed in the case of State v. Lackey, 230 Mo. 707, in an opinion by the writer, concurred in by Gantt and Burgess, JJ.; also in the cases of State v. Hoag, 232 Mo. 308, in an opinion by Brown, J., and State v. Harris, 232 Mo. 317, in an opinion by Ferriss, J., in both of which the full court concurred. The same construction is also supported by the following cases: State v. Banks, 73 Mo. 592; State v. Palmer, 88 Mo. 568; State v. Henson, 106 Mo. 66; State v. Hutchinson, 111 Mo. 357; State v. Maguire, 113 Mo. 670; State v. Nelson, 118 Mo. 124; State v. Taylor, 118 Mo. 153; State v. Rufus, 149 Mo. 406.

In view of these decisions it would seem that the law, at least as to whether a request and exception are necessary to save the point as ground for a new trial, should be considered as settled, but because of some new points of attack upon these recent decisions, a few additional observations will be added.

No State, except the States of Kansas and Texas, has a statute even substantially similar to that under' review, and therefore general law can aid but little in its construction. Our statute was taken almost verbatim from the laws of Kansas. Since its enactment in 1879 it has been made more mandatory in its evident purpose to guard the rights of the accused, by amendment from time to time, while the Kansas law has remained unchanged. When our statute was adopted the Supreme Court of Kansas had construed their law in the case of Craft v. State, 3 Kan. 450, saying (I. c. 470): “No request of the prosecuting attorney that he only wants instruction as to the first degree given to the jury, nor the omission of the defendant to request the court to thus instruct, can change the duty of the court in this'particular. It is a duty which the statute makes obligatory, and a right which the defendant has, to have the court instruct the jury upon the statutory law in reference to the various degrees of murder.”

It is established law that when a statute of another State is adopted by the Legislature, the construction placed on the statute prior to its adoption governs.

In the recent case of State v. Winters, 81 Kan. 414, the same court concluded an extensive review of its former decisions upon the subject as follows:

“These cases are sufficient to illustrate the limitations upon the compulsory aspect of the statute which have been recognized since Craft’s case was decided, in April, 1866. Prom all the decisions noted it may be concluded that the statute means what it says and should be followed, but that a duty rests on counsel for the defendant to aid and not to ambush the court, and consequently instructions- should be requested covering all lesser degrees or lesser crimes involved in the main charge which the defendant desires to be considered. A request sufficient to direct the mind of the court to the subject is enough. Good instructions need not be offered, or a good theory for them formulated; and the evidence itself may point so plainly to the necessity for such instructions that no request is necessary. Generally, however, a failure to make the request waives error in failing to instruct, and, generally, error in failing to instruct or in giving wrong instructions upon lesser degrees or offenses works no prejudice when the defendant is convicted upon satisfying evidence of a higher charge, under correct instructions’ relating to it. Should it appear that if omitted instructions duly requested or clearly required by tbe evidence bad been given tbe jury might naturally and probably have convicted of a lesser degree or offense, the omission will constitute prejudicial error.”

It should be noted that section 5245, Revised Statutes 1909, providing that all exceptions in criminal cases shall be goverened by the law applicable in civil cases, is identical with sections 6798 of the G-eneral Statutes of Kansas of 1909.

The law of Texas is also in substantial agreement with our law upon the subject of the duty of the court to instruct the jury, except that in a subsequent section (Art. 743, T. 8, Tex. R. C. S. 1911) it is provided that, “whenever it appears by the record in any criminal action, upon appeal of the defendant, that any of the requirements of the eight preceding articles have been disregarded, the judgment shall not be reversed; unless the error . . . 'shall be excepted to at the time of the trial.” The article making it the duty of the court to instruct the jury is one of the eight referred to.’ And article 744, T. 8, provides that exceptions in criminal cases shall be governed by the provisions of the law of exceptions in civil cases.

It is unnecessary to do more than refer to the fact that the Texas law, although containing a provision similar to that found in our law, making the civil code as to exceptions applicable to criminal cases, yet added an express requirement in criminal cases that error must be excepted to at the time to be available on appeal, a requirement not found in our law. But even with that requirement the failure of the court to instruct-will in certain cases be considered when raised for the first time in the motion for' new trial, or even in the appellate court. [See cases cited, Texas Code of Crim. Proc., 1900, p. 242, note 1.]

One provision of our statute to which attention has not been directed in the many cases involving its construction, should he considered. Prior to 1889 no distinction was made between misdemeanor and felony-cases, as to the duty of the court to instruct the jury. That year the following words were- added to the statute by amendment,' ‘ ‘ and a failure to so instruct in cases of felony shall be good cause, when the defendant is found guilty, for setting aside the verdict of the jury and granting a new trial.” The language of this amendment amounts to a legislative declaration as to the purpose and intent of this law. It not only states what shall result from the failure to instruct, but that such result shall follow only in felony cases, thereby taking misdemeanor cases out of the rule by necessary implication. It has always been the law in this State and is now that in misdemeanor cases it is the duty of the court to give instructions to the jury, when necessary instructions are requested, and the failure to do so, excepted to at the time,* will warrant a new trial, so that if a request and exception are necessary in a felony case, as in a misdemeanor case, the distinction made by the amendment of 1889 becomes meaningless and of no effect. We have given cereful consideration to this amendment, and upon no possible theory can we harmonize it with the view that a request for an instruction necessary for the information of the jury and an exception for failure to give it, are necessary to save the point for review in a felony case.

We are aware that a number of cases can be cited that are in conflict with the views herein expressed, and also others in support of such views. Space forbids that we should attempt a full review of such cases. It is sufficient to say that the language of the statute, the facts in connection with the history of the amendments thereto, the construction placed upon the law by the courts of the State from which it was taken, and the imperative necessity, in the interest of justice, that the jury in a criminal case should be instructed as to the law, fully satisfy us as to the correctness of the cases holding that the failure of the court to give necessary instructions in felony cases shall be good cause for a new trial, without request or exception by the defendant at the time.

The question remains, was the point properly made a ground of the motion for a new trial? The thirteenth ground of the motion was: “Because the court erred in failing to instruct the jury upon the whole law governing the case.” In the consideration of this question we must not overlook the language of the statute which bases the right to a new trial upon a failure to instruct the jury on all questions of law arising in the case “which are necessary for their information in giving their verdict.” That language, .fairly construed, does not mean that the court shall instruct upon any and every question, but only upon such as are necessary and essential to intelligent action by the jury in the trial of the case before them.

Ordinarily technical detail is not required in stating the grounds of the motion for a new trial. But the purpose of the motion generally, not always, is to bring before the court for review rulings made during the trial and to which specific objections were made at the time. However, in the case of alleged error for failure to give necessary instructions, the complaint is because of the non-action of the court, and when such failure is made a ground of the motion for a new trial, we think it is not an unreasonable construction of the statute to hold that the defendant should call the court’s attention to the question of law on which it is claimed the court failed to instruct.. The court is then given an opportunity to grant a new trial, if the complaint is well founded, without the delay or expense incident to an appeal. This rule does not work a hardship on the defendant, for it gives him the full time allowed for filing the motion to formulate his complaint. It is not only fair to the trial court, but in case of an adverse ruling on the motion, the record on appeal will show on its face the error complained of, when otherwise it would not.

Notwithstanding the foregoing rule, if satisfied from the record that there has been a failure to instruct the jury upon a-question which goes to the fundamental rights of the defendant, and that by such failure injustice may have been done or a verdict returned different than if such failure had not occurred, this court, in the interest of justice, will not hestitate to grant a new trial, though the question should be presented here for the first time.

This case is one which we think falls under the exception to the rule. Although the statute authorized the joining of both felonies in one count of the information and the trial of the defendant for both at the same time, he still had the right to have the jury pass separately upon his "guilt or innocence of each offense. This right, of vital importance under the law, was denied to him by the instructions, and for that reason, as well as for the error discussed under point 6, we hold that the judgment should be reversed and the cause remanded. It is so ordered.

Ferriss, P. J., and Brown, J., concur.


source: Caselaw Access Project

author: FERRISS, P. J.

license: Public Domain

text:
    Ex parte LUCY SEE, Petitioner.
    Division Two,
    March 21, 1912.
    1. INFORMATION: Incorrigible Girl: Individuating Offense. The statute (Sec. 1546, R. S. 1909) designating the character of girls that may be committed to the State Industrial Home does not individuate the offense, and it is therefore necessary that the information set out the facts which constitute the alleged offense. An information charging that the sixteen-year-, old girl “was then and there unlawfully incorrigible to such an extent that she could not be controlled by her parents and guardians, and that her associations were immoral and criminal and bad and vicious” is not sufficient to support a judgment.

      2. JUDGMENT: Incorrigible Girl: No Finding of Facts. A judgment that fails to show that any trial was had or that defendant was found guilty of any offense covered by the statute is insufficient. A judgment which does not find that the girl was incorrigible, or that her associations were immoral or criminal, or bad or vicious, but simply finds that “she is a fit subject to be committed to the State Industrial Home for Girls,” will not authorize the sheriff to deprive her of her liberty.
    Habeas Corpus.
    Weit allowed.

      Thos. F. Gatts for relator.
   FERRISS, P. J.

— The petitioner, a girl of sixteen years of age, complains that she is unlawfully and wrongfully deprived of her liberty by T. C. Lasley, sheriff of Marion county, Missouri.

It appears from the information and return that on the 2d day of March, 1912, the assistant prosecuting attorney of Marion county filed before one Thomas L. Anderson, justice of the peace, the following information :

“Lewis O’Conner, prosecuting attorney within and for the county of Marion, in the State of Missouri, upon the actual knowledge of F. L. Kelly, as is set forth in the affidavit of said F. L. Kelly, heretofore in and with this court filed, upon his knowledge, information and belief, informs the court that Lucy See, on the . . . day of March, A. D. 1912, at the township of . . . said county of Marion, State of Missouri, being then and there a female child, under the age of eighteen years and over the age of seven years, to-wit: the age of sixteen years, was then and there unlawfully incorrigible to such an extent that she could not be controlled by her parents and guardians, and that the associations of her, the said Lucy See, were then and there immoral and criminal and bad and vicious, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Missouri.”

The petitioner was arrested upon this information and taken before the said justice of the peace. The transcript of the proceedings before the justice shows as follows:

“Now on this day (March 5,1912), this cause coming on to be heard, comes the assistant prosecuting attorney, Lewis O’Conner, who prosecutes, on behalf of the State, and the defendant, Lucy See, in her own proper person, and the said defendant, having seen and heard read the information filed in this cause, for plea says she is not guilty in manner and form as charged, and this cause is submitted to the justice for trial. And it appearing to the court that the defendant, Lucy See, is a girl over the age of seven years and under the age of eighteen years, to-wit, of the age of sixteen years, and that she is a fit subject to be committed to the State Industrial Home for Girls, I therefore, the undersigned justice of the peace, do for said offense assess her punishment at confinement in said State Industrial Home for Girls until she reach the age of twenty-one years.
“It is therefore adjudged by the court that the said defendant, Lucy See, be confined in the State Industrial Home for Girls, located at Chillicothe, Livingston county, Missouri, until she is twenty-one years of age, or she be discharged according to law.”

The judge of the Hannibal Court of Common Pleas indorsed his approval upon the sentence of the justice, whereupon the petitioner was committed to Sheriff Lasley, to be taken to the State Industrial Home for Girls, in accordance with the sentence.

This proceeding is attacked on various grounds by the petitioner; among others, that the law under which the proceeding was had is unconstitutional. The proceeding before Justice Anderson was under section 1546, Eevised Statutes 1909, which reads as follows:

“Every girl over the age of seven years and under the age of eighteen years, who shall be convicted of being a vagrant, or of any offense not punishable with death or imprisonment for life, or whose associations are immoral or criminal, or bad and vicious, or who is incorrigible to such extent that she cannot be controlled by her parents or guardians in whose custody she may be, may be sentenced to said industrial home until she shall reach the age of twenty-one years, if the court or magistrate before whom such conviction shall be had deem the girl so convicted a fit subject to be committed to said home, such sentence to be approved by the circuit or probate judge before being committed, and the age of the girl so committed to be indorsed on the commitment.”

We deem it necessary to consider only the question of the sufficiency of the information and judgment. The statute does not individuate the offense. It is therefore necessary that the information set out the facts which constitute the alleged offense, which is not done. [State v. Hayward, 83 Mo. 299.] We therefore think the information is insufficient to support the judgment. We furthermore think the judgment is insufficient in that it fails to show that any trial was had, and fails to show that the petitioner was found guilty of any offense covered by section 1546. It does not find that she was incorrigible, or that her associations were immoral or criminal, bad or vicious. The justice finds simply that “she is a fit subject to be committed to the State Industrial Home for Grirls,” and therefore the justice proceeded to sentence her to the State Industrial Home for Grirls “for said offense.” We apprehend that the law does not contemplate that a justice of the peace may sentence a girl to the industrial home simply because he reaches the conclusion that she is a fit subject for that institution. There is nothing in the judgment of the justice that sustains any allegation of the information. The proceeding, therefore, was without warrant of law, and the petitioner should he discharged. It is so ordered.

Kevmish and Brown, JJ., concur.


author: BLAIR, C. PER CURIAM.

text:
    MYRON E. ROSS v. GRAND PANTS COMPANY, Appellant.
    Division TWo,
    March 21, 1912.
    1. PRACTICE: Exceptions: Jury: Omission to Swear a Member: Appeal. The omission to swear a member of the jury in a civil case is but matter of exception.
    2. -:. -: -: -: -: Constitutional Question. There is a conflict in testimony as to whether a member of the jury in a civil case was sworn. Counsel for appellant .was present during all the time in point, and yet saved no exception. He now attempts to raise a constitutional question under the provision regarding- trial by jury. Held, that even if a constitutional question is involved (a matter not discussed), yet, since timely exception was not saved, the Supreme Court cannot decide the point. A constitutional question in order to confer jurisdiction in a given case must not only be raised below, but must be raised at the proper time and kept alive.
    Appeal from Jackson Circuit Court. — Eon. James E. Goodrich, Judge.
    Transferred to the Kansas City Court of Appeals.

      Gerson B. Silverman for appellant.

      Joseph P. Fontron for respondent.
   BLAIR, C.

— This court . is without jurisdiction of this case unless the construction of the Constitution of the State is involved. On the part of appellant it is asserted the provision of our Constitution relating to trial by jury was drawn in question in the trial court in this wise: At the close of the evidence in the case the court adjourned until the following morning, and upon its reconvening appellant’s counsel stated that after adjourment on the previous day he had learned one of the twelve jurors had not been sworn to try the case, wherefore counsel moved the court “to discharge the entire jury and impanel a new jury.” Evidence, pro and con, was heard upon the question of fact thus raised.

Appellant’s counsel was at the counsel table when the jury was impaneled, and testified he was cognizant of the fact the juror in question was at first excused and then recalled but had no recollection whether he was sworn. It appeared that the official calling the twelve selected to try the case inadvertently omitted the juror Lockwood and then “in the fraction of a minute” discovered the error and recalled him to the jury box. A young attorney — associated in the trial with appallant’s present counsel, engaged in looking after the witnesses and offering occasional sugges? tions, though not employed by appellant- — and one of appellant’s employees testified they observed the omission to swear Lockwood at the time it occurred but did not mention it, not knowing it was of importance.

The juror and the deputy who called the jury list preparatory to swearing the twelve gave testimony tending to show all twelve were duly sworn. The court and respondent’s counsel had no distinct recollection on the subject.

The court made no definite finding whether the juror was or was not sworn, but stated it was under “the impression from the testimony that the weight of it tends to show the juror was not sworn, ’ ’ and then said counsel had waived the point by not raising it earlier, the whole transaction having occurred in counsel’s presence. The court then heard the testimony of appellant’s counsel and thereupon overruled the motion, giving, at that time, no reason for its ruling.

We think this cause must be transferred. An absolute denial of a jury trial in a case in which it is demandable will not be reviewed unless exception is taken and saved (Ward v. Quinlivin, 65 Mo. 453; Klotz v. Perteet, 101 Mo. 213; Estes v. Fry, 94 Mo. l. c. 271; Smith v. Baer, 166 Mo. l. c. 401; Callahan v. Shotwell, Admr., 60 Mo. l. c. 401; Vining v. Insurance Co., 89 Mo. App. 319), and for a stronger reason an inadvertent omission to comply with some formality in impaneling one or all of the jurymen must be held unreviewable unless excepted to at the proper time.

Specifically, that the omission to swear any one or all of the jury is but a matter of exception is, 'in our opinion, well established.

The Supreme Court of Vermont (Scott v. Moore, 41 Vt. l. c. 210), considering the identical question presented here, under a constitutional provision similar to ours, held: ‘ ‘ The fact that the juror was not sworn, was an irregularity the party might waive, as necesr sarily it could not affect the fairness of the trial. The juror may have acted as conscientiously and as impartially in the discharge of his duty as a juror as he would have done under oath. It is not shown that he did not.”

In the case of Hardenburgh v. Crary, 15 How. Pr. 307, it appeared that one of the jury had not been sworn in some five cases in which he sat. The parties were ignorant of the failure to swear him. It was held the objection was but technical and “might have been obviated upon mere mention at the time the irregularity occurred.”

In view of the settled rule in this State above restated, the decisions from other states from which we have quoted and many others of like import (Arnold v. Arnold, 20 Iowa l. c. 275; Jenkins v. City of Hudson, 16 Abb. [N. C.] l. c. 141; Wells v. Smith, 49 W. Va. l. c. 84; State v. Council, 129 N. C. l. c. 516, 517; Railway v. Butler, 52 Tex. Civ. l. c. 325; Burns v. Matthews, 46 S. W. 79; Clements v. Crawford, 42 Tex. l. c. 604; 1 Thompson on Trials, sec. 113 and note), we conclude that any irregularity in administering the oath to the jury or a total or partial failure to administer the oath at all, in a civil case, is purely a matter of exception. Being such, an exception should have been saved at the time the omission occurred. Counsel cannot be heard to say he did not know of the omission. His business in court was to see that the trial proceeded in an orderly manner and that every right of his client was preserved and make the record show his exceptions in case he felt his client aggrieved by an adverse ruling.

The point was made too late and was waived by the delay in making it. The question is consequently not in the case at all, and can furnish no basis for the retention by this court of jurisdiction. Timely exception not having been saved, this court could not decide the question if jurisdiction were retained. It would be singular if a question which, on the record here, is clearly not presented for decision on appeal, could yet confer jurisdiction.

A constitutional question in order to confer jurisdiction in a given case must not only be raised below, but must be raised at the proper time and kept alive for decision by this court. [Lohmeyer v. Cordage Co., 214 Mo. l. c. 690; Hartzler v. Railroad, 218 Mo. l. c. 564, 565; Brown v. Railroad, 175 Mo. l. c. 188; St. Joseph v. Life Ins. Co., 183 Mo. l. c. 7; State v. Earll, 225 Mo. 537.]

What has been said is not to be construed to mean that any constitutional question would have been presented even if objection had been properly made and exception had been taken seasonably to the failure to swear the juror. That question is left for determination until presented for decision. Since the failure to swear the juror is not before us at all, we refrain from discussing whether such failure could in any event be made the basis of a constitutional question. It may be added that decisions in criminal cases are not applicable in this case.

Another thing may be mentioned which fully exculpates counsel from the implication that he was not sufficiently observant. On the record we think the trial court might well have put his ruling on the ground that as a matter of fact the juror was sworn. The juror and the deputy who called the list thought so, and the very fact that counsel, whom the record shows to have been constantly and keenly alive to his client’s interest throughout the whole proceedings, failed to observe any thing out of the ordinary in the swearing’ of the jury, militates strongly against the possibility of such a noticeable omission as failure to swear one of its members. Those who testified directly that such omission occurred disclosed they were not very familiar with court and trial procedure and might easily have been mistaken. In that event, of course, no constitutional question could by any possibility have been presented.

The cause is ordered transferred to the Kansas City Court of Appeals.

Boy, G., concurs.

PER CURIAM.

— The foregoing opinion of Blair, .C., is adopted as the opinion of the court.

All the judges concur.


author: ROY, C. PER CURIAM.

text:
    THE STATE v. LOUIS KOZLICKIE, Appellant.
    Division Two,
    March 21, 1912.
    1. EVIDENCE: Carnal Knowledge: Offer of Proof. In this prosecution for carnal knowledge the accused complains upon appeal that the trial court erred in refusing to permit him to prove acts of unchastity of the prosecutrix prior to the commission of the alleged offense, and in confining him to proof of the prosecutrix’s general reputation. Held, that the colloquy between court, counsel and witness, as set out in the opinion, does not show such error by the court, and besides, even -if the court had ruled as complained of, the Supreme Court could not reverse the case, for the accused did not state what facts he wished to show by his witnesses. The mere statement that he proposed “to prove her unchastity by circumstantial evidence” was no such statement of facts.
    2. INSTRUCTIONS: Carnal Knowledge: Facts in Issue. Where, in a prosecution for carnal knowledge, there was no evidence from which the jury had any right to draw the inference that the prosecutrix had been guilty of acts of lewdness or unchastity, what evidence there was tending to show only that she was sometimes out till midnight with young men at picture shows, and that she talked with men in the bakery, where she worked, an instruction was properly refused which stated that “to establish the unchastity of the prosecuting witness . . . it is not necessary to do so by proof of direct acts of unchastity, hut it may be done by any and all acts and statements made by her from which a reasonable inference of her unchastity can be drawn.” This instruction would have authorized the jury to find unchastity from evidence which did not- show either bad reputation or acts of lewdness or unchastity.
    Appeal from St. Louis City Circuit Court. — Eon. G. C. Hitchcock, Judge.
    Aeeirmed.

      Chas. P. Johnson and Silver S Dumm for appellant.
    (1) The court erred in refusing to permit defendant to prove acts of unchasity of the prosecutrix prior to the commission of the alleged offense; and erred in confining defendant to proof of her general reputation. State v. Patterson, 88 Mo. 88; State v. Wheeler, 94 Mo. 252; State v. Blize, 111 Mo. 471; State v. Sharp, 132 Mo. 172. Defendant was not confined to the general reputation of the prosecutrix for unchasity. Whether she was of previous chaste character was a vital question in the case. It was necessary for the State to allege it and prove it, and for the jury to find it. Any evidence, therefore, which tended to show that she was unchaste was admissible. Nor, under the general rule and the authorities above cited, was defendant limited to direct proof of unchasity. He could show it by circumstances and by specific acts of lewdness and misconduct. He offered to show it by proving by the witness Burkhart, that she associated with men late at night, and in a manner foreign to a chaste and innocent girl. He was denied the privilege of making this proof, and thereby the court committed error. (2) The instruction requested by defendant should have been given. The court refused to rive it on the ground that it was not warranted by the evidence. If the court erred, as it is insisted it did, in refusing to permit defendant to prove prosecutrix’s bad reputation circumstantially and by proof of acts of lewdness and misconduct, then assuredly it erred in refusing to give this instruction. The court could not reject an offer of competent evidence and then refuse an instruction based on such evidence, on the ground that there was no evidence to warrant it. But outside of the testimony offered and rejected, there was evidence to warrant the giving of the instruction requested by defendant. The father of defendant had testified that the girl went out with young men and stayed out as late as one o ’clock in the morning; that she associated with men and boys around the bakery. And Mrs. Belgard testified that she had seen the girl out as late as a quarter to twelve, and when questioned about being out at that late hour, the prosecutrix said: “I don’t want my mother to know it, and I don’t want the boss to know it either.” The jury were not told, in the instructions given by the court, what constituted previous chaste character, and how it might be proved or disproved. The instruction requested by defendant submitted this issue to the jury, and it should have been given.

      Elliott W. Major, Attorney-General and John M. Dawson, Assistant Attorney-General, for the State.
    Appellant requested instruction 4 in which he sought to have the court declare that to establish the unchastity of the prosecuting witness it is not necessary to do so by proof of direct acts of unchastity, but it may be done by any and all acts and statements made by the prosecuting witness from which a-reasonable inference of her chastity may be drawn. This instruction was covered under the reasonable doubt instruction, and we think was properly refused.
   ROY, C.

— The defendant was charged with- having carnal knowledge of Mamie Wesolowski, an unmarried female over fourteen and under eighteen years of age, on April 19, 1910. He was convicted and sentenced to three'months in jail and a fine of $300, and has appealed.

The evidence showed that defendant was twenty-four years old and single, also very deaf. He was employed by his father in a bakery in St. Louis.' The Kozlickie family lived upstairs over the bakery. Prosecutrix was employed in the bakery from the latter part of December, 1909, until July 3, 1910.. She arose about five- o’clock every morning so as to be ready for her work as saleslady in the bakery ¿ and lived with the Kozlickies, sleeping in the dining room. The defendant occupied the front room' upstairs.

The prosecutrix testified to the commission of the offense about the first of April, 1910, the act being repeated at various times until July 3, when she left. She testified that she was fourteen in February, 1910, and that she had been pregnant for seven months at the date of the trial, which was December 16, 1910.

There was testimony by a married sister of defendant that prosecutrix would sometimes be out as late as midnight with men at shows, and when spoken to about it by witness, said “I would not want my mother to know it, and I don’t want the boss to know it either. ’ ’

The sister of defendant also testified that she had seen her at other times with boys standing in front of the bakery as late as ten and half past in the evening; and that most every evening prosecutrix and other little girls would stand around the bakery “making noises and carrying on like children of her age would. ’ ’ That was in pleasant weather.

Defendant’s father testified that the prosecutrix went out every other night with John Mitulski, coming back at almost twelve o’clock. It continued from April 15 to May 17.

John Mitulski testified that he first met prosecutrix in May and did not go to the bakery often; that he went with her once to a nickelodeon, and went home with her once from a dance.

During the examination of Louis Burkhart, a witness for defendant, the following occurred:

“Now, do you know about the habits of this girl, in going with men, around there?
“Mr. Parrar. I object to him leading the witness. Let the witness state, himself, what he knows about her habits.
“The Court. Objection, sustained.
“Q. By G-overnor Johnson. Do you know of anything — . A. I seen the girl was awful careless with her habits.
“Mr. Parrar. I ask that be stricken out.
“The Court. That will be stricken out. The question is the general reputation of the prosecuting,witness for unchasity, and the question ought to be along those lines, Governor Johnson.
“Governor Johnson. I want to get that into the record. I propose to show by this witness and others that this girl was in the habit of going with men late at night, as she has denied; that' she associated with men in there; that she associated in a manner which no chaste and innocent girl would do. Now, I propose to show that, not by her general reputation, but by specific testimony of witnesses whom I have here.
“The Court. Well, if you will bring your questions in so that that will be indicated.
“Governor Johnson. If I ask the direct question the objection is that it is a direct question.
“The Court. Go ahead and ask the question.
“Governor Johnson. I have no way excepting by general reputation; and we cannot prove those things by general reputation. We can only prove them by circumstantial evidence.
“Mr. Griffin. Just a minute; Governor Johnson objected to our witnesses testifying to specific acts, my recollection is, when they got on to testify to gem eral reputation; and it seems to me that he is limited to the same rule; and he cannot prove the character of the prosecuting witness by any other facts than by general reputation unless he can show a specific act of intercourse prior to this time with somebody else. If he can, I have no objection to him showing it.
“Governor Johnson: If your Honor sustains that objection, I know where I stand.
“The Court. Objection sustained.”
‘ ‘ To which ruling of the court, defendant, by counsel, then and there duly excepted, and still continues to except.
“Governor Johnson. I have stated that I wanted to prove her nnchastity by circumstantial evidence. That is all.”

The defendant did not testify. He is a Pole and does not speak English. Three witnesses testified to the good reputation of prosecutrix for chastity.

There is no complaint of the instructions given by the court. The defendant asked an instruction which was refused as follows:

‘ ‘ The jury are instructed that to establish the unchastity of the prosecuting witness in this case, it is not necessary to do so by proof of direct acts of unchastity, but it may be done by any and all acts and statements made by the prosecuting witness, from which a reasonable inference of her unchastity can be drawn. ’ ’

To the refusal of the court to give said instruction, the defendant duly objected and excepted at the time.

I. Appellant contends that the trial court erred in refusing to permit defendant to prove acts of unchastity of the prosecutrix prior to the commission of the alleged offense, and in confining defendant to proof of her general reputation.

We do not so construe the record. When the witness testified that prosecutrix “was awful careless with her habits,” the court very properly struck it out. The opinion of the witness was worthless as evidence. He could have stated what her habits were, and the jury could have determined whether they were “awful careless.” The court did say that the question was her general reputation for unchastity. But when counsel for defendant offered tó show her conduct with men and that she associated with men in a manner which no chaste girl would do, the court said, “Well, if you will bring your question in so that that will be indicated.” We cannot conclude from what occurred that the court at any time ruled that the defendant could not show previous acts of lewdness or unchastity by the prosecutrix, and did not rule that the defendant could not prove such by circumtantial evidence ; and, even if it was so ruled, the defendant has nowhere stated what evidence he had of such acts.

"Was the circumstantial evidence that he had in mind simply evidence that she played and made a noise in front of the bakery as children will do; or that she went to shows with young men. The court had previously overruled many objections to such evidence offered on the part of the defendant. We have no reason to believe that the court would have excluded anything which tended to show previous acts of lewdness or unchastity, on her part.

We cannot reverse this case without knowing what the evidence was that the defendant desired to introduce. The mere statement that he proposed “to prove her unchastity by circumstantial evidence” was no showing as to what the evidence was which he had in mind. He should have informed the court what facts he proposed to show by the witness. [State v. Arnold, 206 Mo. 597; State v. Shapiro, 216 Mo. 371.]

II. The instruction asked by defendant was properly refused. The evidence tends to show that the prosecutrix was sometimes out as late as twelve o ’clock at night with young men at picture shows; and that she talked with men in the bakery. Biit that is not evidence from which a jury has any right to draw the inference that she had been guilty of acts of lewdness or unchastity.

Had there been evidence, circumstantial or otherwise, of acts of lewdness or unchastity with other men, then the evidence that she was sometimes out late at night with young men, and talked with men in the bakery would have been for consideration by the jury in connection with the evidence as to such acts. But where there was no evidence of such acts, there was no basis for- the instruction. The decisions of this court allow the chastity of the prosecutrix to be attacked in tyro ways, by evidence as to her reputation for unchastity, and by evidence of acts of lewdness or unchastity. The defendant’s refused instruction authorized the jury to find unchastity from evidence which did not show bad reputation or acts of lewdness or unchastity.

The instruction says “it is not necessary to do so by proof of direct acts of unchastity.” There is a broad difference between direct evidence of an act and a “direct act.” In the latter expression the word “direct” has very little if any significance, while in the former it has a well known legal meaning. The word “direct” can be left out of that instruction without changing the sense. It would then read “it is not necessary to do so by proof of acts of unchastity.” That is not the law, because where there is no proof of bad reputation in that respect, there must be evidence of an unchaste or lewd act.

It was doubtless the intention that the jury should be told by that instruction that it was not necessary to prove acts of unchastity by direct evidence, but that such acts could be shown by circumstantial evidence.

If such was the intention, the-wording of the instruction was unfortunate, and had it been properly drawn, it lacked evidence to support it. The judgment is affirmed.

Blair, C., concurs in the result.

PER CURIAM.

— The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All the judges concur.


author: ROT, C. PER CURIAM.

text:
    FANNIE SONNENFELD, Appellant, v. ROSENTHAL-SLOAN MILLINERY COMPANY.
    Division Two,
    March 21, 1912.
    1. PLEADING: Petition: Estoppel. When a petition states such improper acts upon the part of defendant as will defer the running of the Statute of Limitations in his favor, a further plea that he is estopped to plead the statute is useless.
    2. LIMITATIONS:' Deferred: “Improper Act;” Sec. 1905, R. S. 1909. The plaintiff's petition alleges, that the defendant corporation wrongfully got possession of its note payable to plaintiff and refused to allow plaintiff to see it; that the president of the corporation was plaintiffs brother, who convinced plaintiff that the note was signed by him instead of by his corporation; that plaintiff, thus deluded, sued her brother upon the note in 1902, in good time; and, finally, that while defendant corporation knew of the pendency of plaintiffs suit against her brother as maker of the note, it used all means to prevent her from learning the truth about the note until áfter the Statute of Limitations had run. Held, that the petition stated such improper acts on the part of defendant corporation as would defer the running of the Statute of Limitations in accordance with Sec. 1905, R. S. 1909.
    Appeal from St. Louis City Circuit Court.— Hon. M. G. Reynolds, Judge.
    Reversed and remanded.

      David Goldsmith for appellant.
    (1) The fact alleged in the petition of the plaintiff, that the defendant had orally agreed not to plead the Statute of Limitations, and that plaintiff had relied thereon, is sufficient, as matter of estoppel at common law, to prevent the defendant from invoking that statute. Bridges v. Stephens, 132 Mo. 524; Asphalt Co. v. Transit Co., 102 Mo. App. 468; Monroe v. Herrington, 110 Mo. App. 515; Barcroft v. Davis, 91 N. C. 363; Joyner v. Massey, 97 N. C. 148; Cecil v. Henderson, 121 N. C. 247; Holman v. Omaha, 117 la. 268; Schroeder v. Young, 161 U. S. 334; Davis v. Dyer, 56 N. 1:1. 143; Renackowsky v. Water Commissioners, 122 Mich. 613; Armstrong v. Levan, 109 Pa. St. 177; Dry Goods Co. v. Goss, 65 Mo. App. 63; Railroad v. Com. Co., 71 Mo. App. 303. (2) The facts pleaded in the petition are sufficient to bring the case within the statutory provision of Sec. 4290, R. S. 1899 (Sec. 1905, R. S. 1909), and thus preclude the plaintiff from relying on the Statute of Limitations. Nelson v. Beveridge, 21 Mo. 22; Arnold v. Scott, 2 Mo. 14; Foley v. Jones, 52 Mo. 64; Wells v. ITalpin, 59 Mo. 92; Hoffman v. Parry, 22 Mo. App. 20; Hamilton v. Wright, 87 S. W. 1093; Speakman v. Railroad, 114 Ky. 264; Bank v. Distilling Co., 152 Fed. 248; Reynolds’ Admrs. v. Gawthrop’s Heirs, 37 W. Ya. 7; Vanbibber v. Bierner, 6 W. Ya. 179.

      Albert Arnstein and Judson S Green for respondent.
    (1) An essential element of estoppel is that the party invoking- it relied upon the conduct or representations of the other, and had been induced thereby to act or refrain from acting, and that he will be substantially injured if the other party is allowed to repudiate his action. 11 Am. & Eng. Ency. Law, 436, and authorities under note 1; Spurlock v. Sproule, 72 Mo. 573; Monks v. Beldon, 80 Mo. 639; Hequerbourg v. Edwards, 155 Mo. 514. The petition shows that plaintiff did not rely upon the representation set forth therein, that defendant would not plead the Statute of Limitations. (2) The running- of the Statute of Limitations is not arrested, where a person is ignorant of his cause of action, but had the means of discovering it. Callan v. Callan, 175 Mo. 346; Reiss v. Clarenbach, 61 Mo. 310; Shelby County v. Bragg, 135 Mo. 291; State ex rel. v. Yates, 231 Mo. 276; Springer v. Hardy, 4 Mo. 573; Clapp v. Leavens, 164 Fed. 318. It follows that the exceptions in the limitation law were never enacted to relieve a person from its operation, who at one time fully knew his cause of action, but subsequently forgot it. Eagland v. Owen, 84 Va. 237; Battle v. Crawford, 68 Mo. 280; Mereness v. Bank, 83 N. W. (Ia.), 711; Myers v. Cronk, 10 N. Y. S. App. 125; Bail-road v. Mayo, 65 Me. 566; Piper v. Hoard, 107 N. Y. 67; Manly v. Bewicke, 3 K. & J. 342; Plank v. Humphries, 66 S. E. (W. Va.), 94. Plaintiff’s petition admits that in July, 1894, when she received the note, she knew that the I. B. Eosenthal Millinery Company was the maker; she knew in November, 1894, that defendant paid her the interest thereon, and admits that she had the note in her possession continuously until 1896, two years thereafter. (3) Section 1905, Eevised Statutes 1909, refers only to the “improper acts” of a defendant by which service of process or some other step necessary to the comencement of a suit and obtaining jurisdiction of the person or subject-matter was prevented. Shelby County v. Bragg, 136 Mo. 291; Burrus v. Cook, 215 Mo. 496; State éx rel. v. Yates, 231 Mo. 276; Chapman v. Hudson, 46 Ark. 489; Graham v. Staunton, 177 Mass. 321; Arnold v. Scott, 2 Mo. 14. The possession of the note was not necessary for the “commencement of the action; ” it was but the evidence of the contract. (4) Applying the doctrine of ejusdem generis in construing Sec. 1905, E. S. 1909, makes clear the meaning of the words “improper act.” The improper act which will prevent the commencement of an action must be similar to that of absconding or concealing himself by the debtor, such as concealing the specific property sought to be recovered; this would prevent the commencement of the action. State ex rel. v. Tennis, 79 Mo. App. 12; Shelby County v. Bragg, 135 Mo. 291. (5) As the cause of action accrued in 1894 at which time the plaintiff’s alleged disability to sue did not exist, the running of the statute was not arrested by any disability subsequently arising. R. S. 1909, sec. 1904; Wood on Limitations (3 Ed.), sec. 6; McDonald v. Hovey, 110 IT. S. 619; Burr v. Williams, 20 Ark. 171; Denton v. Brownlee Co., 24 Ark. 557; Richardson v. Cogswell, 47 Ark. 170.
   ROT, C.

— This suit was instituted July 13, 1905, in the circuit court of the city of St. Louis and comes here on plaintiff’s appeal from a judgment sustaining a demurrer to the third amended petition which is as follows:

“Plaintiff by leave of court files this her third amended petition and for cause of action states, that the defendant is a corporation duly organized under and by virtue of the laws of the State of Missouri.
“That on July 10, 1894, I. B. Rosenthal Millinery Company, a corporation duly organized under the laws of the State of Missouri, executed and delivered to plaintiff its negotiable promissory note, 'whereby said company promised to pay to the order of plaintiff, for value received, on demand, the sum of ten thousand, four hundred and seventy and 40-100 dollars with interest from date at the rate of six (6 per cent) per cent per annum.
“That on November 10,1894, the said I. B. Rosenthal Millinery Company paid to plaintiff all interest due on said note.
“That on the 1st day of January, 1900, the corporation name of the I. B. Rosenthal Millinery Company was changed and the name the Rosenthal-Sloan Millinery Company was adopted, and that the Rosenthal-Sloan Millinery Company, the defendant herein, is the same corporation which was formerly known as I. B. Rosenthal Millinery Company.
‘ ‘ The plaintiff further states that she is unable to file said note with her petition because of the fact that the defendant, through its officers, agents and servants, in 1896, obtained possession of said note wrongfully, fraudulently, without paying any consideration therefor, and without the knowledge or consent of plaintiff. That upon direction of defendant, said note was abstracted from a safe-deposit box where it had been placed by plaintiff, by one of the agents of defendant, and by said agent delivered to defendant, and defendant has since said time.wrongfully retained possession of said note.
“Plaintiff states that during the years from 1896 to 1901 inclusive, she at various times and occasions discussed with the president of the defendant the payment of said note; that said officer of defendant frequently stated to plaintiff that it was not convenient to pay said note, assured her most earnestly that she was entirely safe and would be paid, and further stated to plaintiff that even if said note was not paid within ten years, that still it would be a good note, because the Statutes of Limitations would never be pleaded against said note as a bar to same, and plaintiff did not sue on said note because of said statements, until as hereinafter stated.
“Plaintiff further states that the president of defendant company, during all of the years above mentioned, was I. B. Rosenthal; that the said I. B. Rosenthal is the brother of plaintiff; that during the conversation as aforesaid which she had with the president of defendant, her brother, I. B. Rosenthal, with reference to said note, the payment thereof and the Statute of Limitations, that the president of defendant, her brother, with the intention of decéiving and defrauding plaintiff, and causing her to lose her legal rights against the defendant with reference to said note, the said president of the defendant always referred to said note as “my note,” and the said president was so earnest in his request to plaintiff at the various times that they discussed said note, that the plaintiff, his sister, should not proceed against her brother on “his note,” that the president of defendant finally succeeded in causing plaintiff to believe that it was tbe note of her brother, I. B. Rosenthal, and not the note of I. B. Rosenthal Millinery Company, this defendant.
“That plaintiff and her brother, I. B. Rosenthal, during the years above mentioned showed all the love and affection due from a brother and sister towards each other, and plaintiff relied implicitly upon the statements made to her by her brother, I. B. Rosenthal, because of her love for him and her confidence in him.
“Plaintiff further states that during the fall of 1901 she went to the establishment of defendant and made a peremptory demand for the payment of said ■ note of her brother, I. B. Rosenthal, being under the impression from the many false statements made by her brother to her, that her brother I. B. Rosenthal was the maker of said note. That the said president of defendant, acting for and on behalf of defendant, had deliberately, intentionally and falsely misstated the fact as to who was the maker of said note in order to defraud his sister, and in order to protect his corporation, this defendant.
“That at the time of said demand the said I. B. Rosenthal, the president of defendant, refused to pay, and the plaintiff, intending to bring suit on said note, went to the safe-deposit box for said note and then discovered that the note was not in said box where it had been placed by her. That plaintiff ascertained at that time that defendant had possession of said note and had been in possession of same for several years, and plaintiff made demand on defendant that the same be delivered to her, which demand was refused by defendant, and then plaintiff asked of defendant that she be allowed to see said note and this request was refused by defendant. The defendant finally stated that it did not have said note, and refused to tell where said note could be found, and'plaintiff asked'all of the agents and business associates of defendant whom she believed had knowledge of the whereabouts of said note, but none of them gave her any information, though all of said parties knew where said note was, and one of the parties, a business associate of defendant, to whom she applied for information, had said note in his possession at this time and was holding same in order to protect defendant from plaintiff.
“That being unable to locate said note and get possession of same or even to see it, the same being in possession of defendant, or its agents, the plaintiff in September, 1902, instituted suit on said note, and that suit was against her brother, I. B.’Rosenthal, because her brother had frequently stated it was his individual note, and not the note of defendant, and plaintiff believed that statement of her brother.
“That defendant intended to defraud plaintiff by taking possession of said note and placing- it where the plaintiff could not find it or see said note. That after said suit had been instituted by plaintiff on said note of ($10,470.40). ten thousand four hundred and seventy dollars and forty cents, against I. B. Rosenthal, the defendant fraudulently and intentionally concealed from plaintiff for more than two years the fact as to the maker of said note, while said suit was pending in court against said I. B. Rosenthal, and defendant only permitted plaintiff to know the truth with reference to the maker of said note in March, 1905, after said note, from its face, was barred by the Statute of Limitations.
“The defendant knew that its president had fraudulently deceived plaintiff as to who was the maker of said note, and knew that its president by false statements had caused her to sue the wrong party, and defendant took fraudulent advantage of plaintiff by closely guarding said note from her, and defendant knew that its president was protecting it from being sned by causing plaintiff to sue him and by defending said suit, and knew that its president was defending in court, in its behalf, the suit which had been instituted on said note against him as an individual.
“That during the time from September, 1902, to March, 1905, while the president of defendant was contesting in the courts with plaintiff the suit which she had brought against him, the defendant, the real maker of said note, had said note in its possession or under its control, and refused to let plaintiff see said note, or to give any information with reference to it, and defendant used all possible means to prevent plaintiff frbm learning the truth about said note, and by its action the defendant intended to defraud plaintiff of her rights with reference to said note, and encouraged its president to make defense in court against the suit which plaintiff had instituted against him on said note. That the president of defendant, by false statements, created a condition with reference to said note to the great injury of plaintiff, and the defendant knowingly accepted the benefits which accrued to it by reason of said false statements of its president.
“That defendant knew that its president was making false and fraudulent statements with reference to said note; and defendant encouraged him in the making of such false statements, and the defendant received and accepted all of the benefits accruing to it because of such false and fraudulent statements.
“Plaintiff further states’that no part of the principal of said note has ever been paid, and interest paid only to November 10, 1894, and that the whole thereof remains due, together with interest thereon from November 10, 1894.
“Therefore plaintiff prays judgment against the defendant for the sum of ten thousand, four hundred and seventy and 40-100 dollars with interest at the rate of,six (6 per cent) per cent per annum from November 10, 1894, and for her costs.”

I. We think that so far as the petition pleads an estoppel, it furnishes the answer thereto. It is useless to say that plaintiff was lulled into a sense of security by the promises of defendant not to plead the Statute of Limitations, for the petition states that plaintiff did bring suit within the time allowed for bringing the suit.

II. On the other branch of the case we think the petition states a good reason why the Statute of Limitation is not available to the defendant.

It appears from the petition that defendant wrongfully got possession of the note and withheld it from plaintiff and refused to allow plaintiff to see it. Plaintiff then thought that the maker of the note was I. B. Rosenthal. She brought suit on the note within the statutory period against I. B. Rosenthal, who was the president of the defendant. The petition states that defendant knew of the pendency of that suit from September, 1902, to March, 1905, and during that time refused to let plaintiff see it, and used all possible means to prevent her from learning the truth about it.

Revised Statutes 1909, section 1905, says: “If any person, by absconding or concealing himself, or by any other improper act, prevent the commencement of an action, such action may be commenced within the time herein limited, after the commencement of such an action shall have ceased to be so prevented. ’ ’

When plaintiff instituted her suit against I. B. Rosenthal in September, 1902, she thought he was the maker. It makes no difference that she once knew who the maker was and had forgotten or been misled about it. She had a right to the possession of the note. The defendant knew the plaintiff was suing the wrong party.

It is true that the defendant was not hound under the law to furnish the plaintiff information, hut it was bound to give her up the note which belonged to her, and which had on its face all the information she needed. The questions arising under section 1889 with reference to actions for relief on the ground of . fraud should not be confused with the question here under discussion. When defendant knew that plaintiff was laboring under a mistake as to who was the maker of the note, whether that mistake arose from forgetfulness or otherwise, its refusal to surrender the note or to let her see it was an improper act, which prevented the bringing of the suit.

In Battle v. Crawford, 68 Mo. 280, it was held that the false and fraudulent representation did not prevent the bringing of the suit. But in this case the act of the defendant was improper and it did prevent the bringing of the suit.

The judgment is- reversed and the cause remanded.

Blair, G., concurs.

PER CURIAM.

— The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All the judges concur.