text:
    THE STATE v. JOHN LONG, Appellant.
    Division Two,
    February 18, 1908.
    1. INDICTMENT: Indorsement of Witnesses. Where no motion to quash the indictment was made because of a failure to indorse the names of witnesses thereon, and no objection to such failure is made until after final judgment, the objection comes too late.
    2. VENUE: Accomplice: Then and There: Margin. Where the indictment clearly lays the venue as in Wright county in charging the defendant’s brother with the homicide, and then proceeds to charge defendant as “then and there” aiding and abetting in said murder, it sufficiently charges the venue as to defendant; and the venue is also established by the margin of the indictment as to both offenses.
    3. INDICTMENT: Principal and Accomplice: Sufficiency. The Indictment in this case, charging the defendant’s brother with murder and defendant as assisting and abetting him in the murder, is sufficient both in form and substance, and avoids the point upon which error was predicated in State v. Burns, 99 Mo. 471.
    4. CHANGE OF VENUE: Failure of Judge to Appear. Where the regular judge is disqualified, and calls in another judge to try the cause, he has authority, upon the failure of such other judge to appear, to call in some other circuit judge to try the case, and it is only on the failure of this second judge called in to appear that the statute requires a change of venue.
    5. -: No Exceptions. Where no exceptions were taken and saved in the circuit • court to the calling in of the judge who tried the cause and to the overruling of defendant’s application for a change of venue, the question of the jurisdiction of the trial judge to try the cause is not before the Supreme Court for review.
    6. DEFENDANT’S PRESENCE AT TRIAL: Steps in Trial. The disqualification of the regular judge of himself and the calling in of another judge to try the case, and the adjournment of the court by the sheriff upon the failure of such judge to appear, and the filing of defendant’s application for a change of venue and the overruling of the same, are not steps in or part of the trial.
    7. -: -: Appearance at Arraignment, Etc. If defendant was present in person at his arraignment, and announced ready for trial, and selected the jury and offered a demurrer to the evidence, he will, under the statute, on appeal, be presumed to have been present during the whole of the trial.
    8. -: -: Continuance. An application for a continuance is no part of the trial.
    9. -: -: Motion for New Trial, ü failure of the record to show defendant’s presence at the filing, hearing and overruling of his motions for a new trial and in arrest, is not error.
    10. ' EVIDENCE: Objections: Incompetent: Leading Questions, Etc. The overruling of objections' made after the witness had testified, or that the evidence is incompetent, irrelevant and immaterial, or that the questions are leading, is not error.
    11. -: Clothing of Deceased. It is not error to admit the clothing of deceased, to show where the stabs were inflicted.
    12. -: Could Have Seen. Where the witnesses were on the ground, saw the encounter between deceased and defendant’s brother, and testified that defendant took no part in it, it is not reversible error to exclude evidence that they could have seen defendant if he had taken part in the struggle. While the question was proper, it is obvious that affirmative answers could have added nothing to their testimony, and that no harm resulted to defendant by excluding their answers.
    13. -: Hearsay: Res Gestae. It is proper to exclude as hearsay the answer of a witness who came out of the church after the difficulty was over and' deceased was dead, who was asked, “Was anything said there over the body about anybody having hit deceased except defendant’s brother, at any time there at the body?”
    14. -: What Occurred After Difficulty. Testimony as to what was said and done after the difficulty was over, unless confined to the actual participants, should be excluded.
    15. PRACTICE: Closing Argument for State. Unless the action of the court in permitting an attorney other than the prosecuting attorney to make the closing argument for the State, is assigned as error in the motion for new trial, it cannot be reviewed on appeal.
    16. INSTRUCTIONS: No Assignment. Where error in the giving of instructions on the part of the State is not assigned in the motion for a new trial, they are not for review on appeal.
    17. -: Refusing Defendant’s. Where the instructions given cover every phase of the case, it is not error to refuse those asked by defendant.
    18. SUFFICIENCY OF EVIDENCE. . Where the evidence on every material point in the case was in hopeless conflict, but that for the State, if true, was sufficient to sustain the verdict, the Supreme Court will not interfere.
    Appeal from "Wright Circuit Court. — lion. Wm. H. Martin, Special Judge.
    Affirmed.

      W. 8. Pope for appellant.
    (1) Sections 2504, 2596, 2597, Revised Statutes 1899, prescribe tbe causes for a change of venue on account of the prejudice of the judge and the calling in of another judge to try the case; but it is provided' in section 2597, “Should said judge so requested fail to appear and hold the court at the time appointed for the trial of said cause, the judge of the court shall order a change of venue in said cause to some other circuit.” Under the circumstances developed by the record in this case it should have been sent to another circuit. (2) Section 2610 provides only for the receiving of a verdict in the absence of the defendant, when such absence on his part is wilful or voluntary, and such absence must appear from the record. State v. Smith, 90 Mo. 37; State v. Hope, 100 Mo. 347. The statute provides that if “present at the commencement or any other stage of the trial, it shall be presumed in the absence of all evidence in the record to the contrary, that he was present during the whole trial.” This does not cover the returning of the verdict into court or the hearing of the motions for a new trial and in arrest. Whether defendant was on bail or in custody during the trial, he was in custody after the verdict was rendered. The law infers this much. State v. Charles, 105 S. W. 609; State v. McClain, 156 Mo. 101. And we find him in the custody of the sheriff when he is brought before the court for sentence. The record shows that the motions for a new trial and in arrest were filed and overruled immediately, without argument, and in the absence of defendant. Upon the face of the record il appears that defendant has been denied rights given him by the law and guaranteed to him by the Constitution, and for this reason this case should be reversed.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The indictment in this case is sufficient in form and substance, and follows the approved forms. .Kelley’s Crim. Law, sec. 474. (2) A party can not sit by and allow an improper question to be answered and accept of the benefit- if the answer is favorable, but object to it if the answer is not favorable. State v. Sykes, 191 Mo. 79; State v. Marcks, 140' Mo. 656; State v. Harris, 1991 Mo. 716; 1 Thompson on Trials, secs. 715-716. (3) Objections were made that the evidence was irrelevant, immaterial, etc. Bnt this court has said that such an objection amounts to no objection at all. State v. McLaughlin, 149 Mo. 27; State v. Young, 153 Mo. 449. (4) Defendant’s counsel also objected to the asking of certain questions because the same were leading; but the asking of such questions is a matter within the discretion of the trial court. State v. .Bateman, 19® Mo. 222; State v. Woodward, 191 Mo. 632; State v. Whalen, 148 Mo. 290; 1 Wigmoro on Evidence, secs. 769-70. (5) It has often been held proper in homicide cases to introduce in evidence the coat, shirt or other clothes worn by the deceased; also bones of the deceased. State v. Wieners, 66' Mo. 29; 4 Elliott on Evidence, sec. 3028; 2 Wigmore on Evidence, sec. 1157; Underhill on Crim. Evid., sec. 48; State v. Groddard, 146 Mo. 184; Wharton on Homicide (2 Ed.), sec. 674; Hart v. State, 15 Tex. App>. 230; State v. Miles, 199 Mo. 546; State v. Reed, 137 Mo. 134; State v. Thornhill, 177 Mo. 696; State v. Linney, 52 Mo. 41; 1 Thompson on Trials, sec. 344. (6) At the close of all the evidence counsel for defendant filed a motion objecting to any attorney, other than the prosecuting attorney, making the closing argument, and asking the court to require the prosecuting attorney to make the closing argument. This motion was overruled, and defendant saved his exceptions. Even if we concede that this was error, which we do not, it may be said that the record does not show what attorney closed the argument; and still further, counsel for defendant failed to assign this alleged error in the motion for a new trial. The error, if error was committed, can not be considered by this court.. (7) The State’s instructions were fair and full, and correctly stated the law to the jury. But, if erroneous, they can not be considered, as defendant’s counsel failed to assign the giving of illegal instructions as one of the grounds for a new trial. State v. Kaiser, 124 Mo. 664; State v. Nelson, 101 Mo. 480. (8) Defendant’s refused instructions were properly refused, as the first one contained a theory wholly adverse to that of the defense. Defendant can not occupy the position that he did not do several acts, and, at the same time, have the jury instructed on the theory that he did do those very acts. State v. Valle, 196 Mo. 29; State v. Bailey, 190 Mo. 295; State v. Lewis, 118 Mo. 83; State v. G-artrell, 171 Mo. 522. The parts of said instruction that were proper had already been included in instructions 2, 3 and 6, given at the request of the State. It is not error to refuse an instruction when one covering the same subject has already been given. State v. Nelson, 166 Mo. 207; State v. Bradford, 156 Mo. 98. (9) Where there is substantial evidence tending to show that the defendant is guilty, this court will not attempt to weigh the same, but will defer to the finding of the jury, as approved by the trial court. State v. Smith, 190 Mo. 706; State v. Payne, 194 Mo. 442; State v. G-roves, 194 Mo. 452; State v. Williams, 186 Mo. 128; State v. Williams, 149 Mo. 496; State v. Swisher, 186 Mo. 8.
   GANTT, J.

At the March term, 1906, the grand jury of Wright county returned an indictment against Rankin Long and John Long, the defendant herein, charging that the said Rankin Long on the 9th day of March, 1905, at the county of Wright, State of Missouri, feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforéthought did make an assault in and upon one Joseph Buttram, and with a certain deadly weapon, to-wit, a certain knife, which he the said Rankin Long in his right hand then and there had and held, the said Joseph Buttram feloniously, willfully, deliberately, premeditatedly on purpose and of his malice aforethought, did strike, stab and thrnst in and upon the left side of the body giving to the said Joseph Bnttram then and there with the knife aforesaid in and upon the left side of the body of him the said Joseph Buttram one mortal wound of the length of one inch and of the breadth of one inch and,of the depth of five inches, of which said mortal wound, the said Joseph Buttram did on the 9th day of March, 1905, at the county of Wright and State aforesaid of the mortal wound aforesaid instantly die. And the jurors aforesaid upon their oath aforesaid do further charge and present that one John Long then and there feloniously, willfully, deliberately, premeditatedly and of his malice aforethought was present, aiding, helping, abetting, assisting, comforting and maintaining the said Rankin Long the felony and murder aforesaid in manner and form aforesaid to do' and commit.

A severance was granted, and it seems that Rankin Long was tried and convicted of murder in the second degree. After several continuances, Judge Argus Cox, the regular judge of said circuit, disqualified himself on the record, and the prosecuting attorney and the defendant not being able to agree upon some attorney to sit as special judge, Judge Cox requested Judge J. L. Fort, the judge of the twenty-second Judicial Circuit, to try the cause, and set the cause down for April 23, 1906, for hearing. On April 23, 1906, Judge Fort being unable to be present and hold the court, the cause was continued until July 2, 1906. On July 2nd, Judge Fort again failing to appear, Judge Cox requested Judge William H. Martin of the fourteenth Judicial Circuit to try the case, and the cause was set down for July 2nd, and on that date the cause was reset for the 2nd Monday in September, 1906. On this last-mentioned date, the court met pursuant to adjournment, and Judge Martin appeared and proceeded to preside in the cause and the defendant filed an application for continuance, which was overruled, but the court reset the cause for October 10, 1906, to enable the defendant to secure his absent witnesses. On October 10, 1906, the court met pursuant to adjournment, Judge Martin present, and the defendant appeared in person and was arraigned and entered his plea of not guilty. And on the next day, October 11th, the record recites:

“State of Missouri v. John Long.
“Now comes the prosecuting attorney, who prosecutes the pleas of the State in its behalf, and also comes the defendant in person and by his attorneys, and both announce ready for trial.”

Thereupon the jury was impanelled and sworn as the law directs, and after hearing the evidence offered by the State, the defendant by his attorneys filed his demurrer to the evidence, which was overruled, and on the next day, the record proceeds, the defendant by his attorneys filed his motion to require the prosecuting attorney to close the argument in the case, which motion was overruled. The record proceeds then to state: “And the jury after hearing all the evidence offered by the State and the defendant, instructions of the court, and argument of the counsel, doth retire to consider their verdict.” And on the next day, the record recites: “Now on this day comes the jury in open court and return the following verdict: ‘We the jury find the defendant guilty of manslaughter in the fourth degree, and assess his punishment at imprisonment in the penitentiary for a period of two years. J. H. Pool, Foreman.’ ” And afterwards within four days, the defendant by his attorneys filed his motions for new trial and in arrest of judgment, which were taken up and overruled, and the defendant sentenced to the penitentiary for a term of two years. From that sentence he was granted an appeal to this court.

The State’s evidence tended to show that on the 9th of March, 1905, a meeting of the Temperance League was held in the Baptist Church about one half mile west of the town of Grove Springs in Wright county, and a large number of people were in attendance that night. The defendant is an elder brother of Rankin Long, and both lived with their parents a mile or so on the other side of Grove Springs from the said church. Between sun-down and dark on that afternoon, Porter Henderson saw the defendant, his brother Ranldn and the two Clymer boys meet in front of a store in Grove Springs; they mounted their horses and started as if they were going home, suddenly they stopped, held a consultation, and turned their horses around and started in the direction of the church where the meeting was held. Joseph Buttram, the deceased, was twenty-two years old, unmarried and lived with his parents on a farm near Grove Springs, and on that night went in company with his younger brothers and sisters to this temperance meeting. He occupied a seat near the front of the church on the south side and close to a window. Twice during the evening he got up and went out, returning each time and taking his former seat. During the evening he borrowed a knife from Frank Weaver and whittled a pine stick. . Just before the close of the services, the defendant came into the church, entering at the front door, walked down the aisle and to the place where the deceased was sitting and whispered something to the deceased, who immediately got up,' gave the knife to Frank Weaver and walked out in company with defendant. When they reached the front door, the defendant put his arm around the neck of the deceased and hurriedly walked towards a place some ten feet distant, where two others were standing in the darkness; in a moment one of the others began striking at the deceased, and the defendant struck the deceased with his fist on the right side of the head and neck, some of the witnesses saying once and other's twice. Rankin Long was then recognized as one of those engaged in the assault on the deceased, and he was seen to draw a knife and stab the deceased twice. The deceased staggered back a few steps toward the church door and fell on the ground and died in a few moments. During the time that defendant’s brother was striking at the deceased, defendant was heard by several witnesses to say, ‘ ‘ Stay with him, Rankin, G — d-— Mm, stay with him.’ Immediately after the deceased had fallen, the defendant said ■ “Me and the kid always stays with him.” As the deceased fell, he cried out, “Take Mm off boys, take him off. ’ ’ A crowd gathered around and the defendant and his brother disappeared. Several of the witnesses testify that the killing occurred at nine o ’clock. Between nine and ten o’clock that night, Porter Henderson, who was still in Grove Springs, recognized the defendant and his brother riding from the west at full speed coming from the direction of the church and going towards their home. They did not slacken their speed even on the rough places. The body of the deceased was carried into the church and a message sent to Ms parents. In the course of a few hours, his wounds were examined ; one wound was made by a small knife under the left arm and was not very serious, the other one was in the left breast just below-the.left nipple and penetrated the heart. There' were dark bruises on the right side of the head and neck of-the deceased.

The defendant’s evidence tended to show that he was in the Baptist church the night of the difficulty and occupied a seat near the door and .did not move from Ms seat until after the benediction had been pronounced and did not go into the churchyard until after his brother Rankin Long and the deceased had had their difficulty; that he then went up to Rankin and said to him: “You must cut out that fight or you boys will be pulled for it.” His evidence tended further to show that there had been a bad feeling between Rankin Long and the deceased, and the deceased had made threats against Rankin; that the deceased looked at Rankin twice, made a face at him and gritted his teeth at him, and that after the deceased and Rankin went out into the yard, deceased was the aggressor and attempted to draw a knife. Defendant also introduced evidence tending to show that deceased had no bruises on his head or neck and that there was no arrangement between defendant and his brother to- assault and injure the deceased. He also introduced evidence tending to show that his general reputation prior to this difficulty was good.

In rebuttal the State offered witnesses who testified that Houston Olymer, one of the defendant’s witnesses, stated to various parties that he was in the church at the time of the killing and knew nothing of the difficulty until it was over. The State also offered evidence to show that the deceased did not grit his teeth or make any faces at Rankin Long in the church that night either as he passed out or while he was seated in the pew.

I. The grounds upon which the defendant seeks a reversal of the judgment will be noted in the order of defendant’s brief.

The indictment is assailed for not properly charging the defendant with the killing of Joseph Buttram and not properly charging the venue as to the defendant and in not having the names of the witnesses endorsed thereon.

Treating of these in their inverse order, it is sufficient to say that no motion to quash was made on account of the failure to endorse the names of the witnesses on the indictment, and it is too late after final judgment to raise this objection. Clearly the attention of the circuit court was never called to it at any stage of the proceedings in that court. Moreover, ten of the witnesses were endorsed on the indictment when it was returned by the grand jury.

As to the venue of the defendant’s offense, the venue as to Rankin Long was laid at the county of Wright in the State of Missouri, and having charged that Rankin Long at said county and State on the 9th of March, 1905, did feloniously, willfully, deliberately, premeditatedly on purpose and of his malice aforethought stab said Joseph Buttram with a deadly weapon, to-wit, a knife, and giving to him one mortal wound, of which he on said day at the county of Wright and State of Missouri instantly died, the indictment proceeds to charge, “And the jurors aforesaid upon their oath aforesaid do further charge and present that John Long then and there” did aid and abet the felony and murder to commit,- the time and place at which the defendant was present aiding, abetting and assisting in the said homicide, was sufficiently indicated and it was not necessary to repeat Wright county and State of Missouri. Besides, the venue was laid as to both offenses in the margin of the indictment. [Secs. 2527 and 2535, R. S. 1899; State v. Beaucleigh, 92 Mo. l. c. 496; State v. Dawson, 90 Mo. 149.]

The indictment was sufficient both' in form and substance in charging the defendant and his brother with the murder of Joseph Buttram.' A less specific charge was upheld in State v. Burns, 99 Mo. 471. The pleader in this case has avoided the point upon which error was predicated in that case and followed the approved form set out in Kelley’s Crim. Law and Practice, section 471.

II. The jurisdiction of Judge Martin to preside in the cause is challenged for the first time in this court. The claim is now made that the cause should have been sent to another circuit. No exceptions, were taken or saved to the calling in of Judge Martin to try the cause, either at the time that he was called or at any time during the proceedings in the circuit court. On May 3rd, there is an entry of record to the effect that an application for change of venue theretofore filed by the defendant, was by the court overruled, but defendant in his bill of exceptions has not incorporated his said application and we are not advised as to the ground thereof. The record does disclose that on March 3, 1906, and before the filing of the said application by the defendant, the regular judge of the court, Argus Cox, had recited upon his record that he was incompetent to try the cause and made an order calling upon Judge Fort to try tJie same and named the day for Judge Fort to appear and preside in the case. As already said, Judge Fort failed to appear at the first setting of the cause, and again when it was reset for him, and it was then that Judge Cox called upon Judge Martin to preside in the case. The contention of the learned counsel for the defendant is that upon the failure of Judge Fort to appear and try the cause, the statute was mandatory that Judge Cox should order a change of venue to some other circuit. Section 2597, upon which this claim of counsel is based, provides: “That if the regular judge shall be incompetent to sit for any of the causes mentioned in section 2594 .... the regular judge shall set the cause down for trial on some day of the term or some day as early as practicable in vacation, and notify and request the judge of some other circuit to try the cause; and it shall be the duty of the judge so requested to appear and hold the court at the time appointed for the trial of said cause; and he shall, during the trial of the cause, possess all the powers and perform all the duties of a circuit judge, .... provided: ... If the judge so requested shall fail to appear and hold the court at the time appointed for the trial of the cause, the judge of said court shall reset said cause for trial, to suit the convenience of the judge so requested to try said cause, or may notify and request the judge of some other circuit to appear and try said cause, as heretofore provided.” Then follows, for the first time, the provision relied upon by the defendant in these words: “Should said judge so requested fail to appear and hold the court at the time appointed for the trial of said cause, the judge of the court shall order a change of wenue in said cause to some other circuit.” So that it clearly appears that Judge Martin was regularly called by Judge Cox under the provisions of the statute, as the statute evidently gave Judge Cox the right to call in Judge Martin upon the failpre of Judge Fort to come, without requiring a change of venue to some other circuit. "We have said this much in answer to the contention of counsel in his brief, but in our opinion, no such question is before us for review, inasmuch as no exceptions were taken or saved in the circuit court to the calling in of Judge Martin or to his presiding in the cause.

III. It is next insisted that the record fails to show the presence of the defendant at important steps in the prosecution of the cause. Thus, it is said the record fails to show the presence of the defendant when Judge Cox disqualified himself and called Judge Fort to try the case and set down the trial for April 23, 1906, and also fails to show his presence on April 23, 1906, when the court was adjourned until the 2nd of May, and on the 2nd of May when his attorney filed a motion for a change of venue, and on May 3rd when that application was overruled, and 'fails to show his presence on October 13, 1906, when the jury returned the verdict; on October 15, 1906, when the motion for new trial was filed and overruled; on October 16th, when motion in arrest was filed and overruled. Section 2610, Revised Statutes 1899, provides: “No person indicted for a felony can be tried unless he be personally present during the trial.....Provided, that in all cases the verdict of the jury may he received by the court and entered upon the records thereof in the absence of the defendant, when such absence on his part is willful or voluntary, and when so received and entered shall have the same force and effect as if received and entered in the presence of such defendant; and provided, further, that when the record in the appellate court shows the defendant was present at the commencement or any other stage of the trial, it shall be presumed, in the absence of all evidence in the record to the contrary, that he was present during- the whole trial.” Proceeding by a process of exclusion it suffices to say that the disqualification of himself by Judge Cox and the calling in of Judge Port to try the case, and the adjournment of the court by the sheriff for failure of Judge Port to appear and- the filing of defendant’s application for a change of venue and the overruling of the same, were not steps in or part of the trial. This court, in State v. Smith, 90 Mo. 37, adopted the view of this provision which had been taken by the Supreme Court of the United States in Hopt v. People, 110 U. S. 574, in which it was announced that, “Por every purpose involved in the requirement that the defendant shall be personally present where the indictment is for a felony, the trial commences at least from the time when the work of impanelling the jury begins.” In State v. Barrington, 198 Mo. l. c. 90, 91, it was ruled that the order of the court to summon a venire from which to obtain a panel of forty qualified jurors, in the absence of the defendant, was not a violation of his right to be present during the trial, but .was an administrative act preparatory to the trial. Recurring to the record proper, it affirmatively shows defendant, was present in court on July 2, 1906, when the record shows Judge Port’s failure to appear and the order calling Judge Martin, and fixing the second Monday in September for the trial, and no objection was made or exception saved by defendant. On the second Monday in September, defendant by his attorneys applied for a continuance which was denied in part but granted to the second Monday in October, 1906. On the second Monday in October, defendant was present in person and arraigned and pleaded not guilty. The record shows that on the next day he appeared in person, announced ready for trial, selected the jury, and at the close of the State’s case filed a demurrer to the evidence, which was overruled and the cause was submitted to the jury, and on the next day they returned their verdict. This brings this case squarely within the last proviso of section 2610. There is not a syllable of evidence showing that the defendant was not in fact present when the verdict was rendered. [State v. Neighbors, 179 Mo. 351; State v. Lewis, 69 Mo. 92; State v. Yerger, 86 Mo. 33; State v. Brock, 186 Mo. l. c. 461 and 462.]

As to the failure to show the presence of the defendant when his motions for new trial and in arrest were overruled, he made no request to be present, if in fact he was not, and it has been ruled that an application for a continuance and its consideration was no-part of the trial. [State v. Hall, 189 Mo. l. c. 264-5.] Likewise the failure to show his presence at the filing, hearing and overruling of motions for new trial and in arrest, was not error. [State v. Brown, 63 Mo. 439; State v. Hoffman, 78 Mo. l. c. 258; State v. Lewis, 80 Mo. l. c. 112; State v. Elkins, 63 Mo. l. c. 163.] Accordingly, this assignment must be ruled against the defendant.

IV. As to the admission of testimony in behalf of the State over the.objections of the defendant, no point is made in brief of his counsel, but we have examined the record and find that the objections were made either after the witness had testified or because the testimony was irrelevant, incompetent and immaterial, or that the questions were leading, and there was no error in admitting the evidence. [State v. Sykes, 191 Mo. l. c. 79; State v. McLaughlin, 149 Mo. l. c. 27; State v. Bateman, 198 Mo. l. c. 222.]

As to' the objection to the testimony of Wm. Scrivener, in rebuttal, that the deceased bore a good reputation as a peaceable, law-abiding citizen, “for the reason that his good reputation is conceded,” it is obvious no harm could have resulted to defendant. As to the admission of the clothing of deceased to show where the stabs were inflicted, there was no error. [State v. Wieners, 66 Mo. l. c. 29; Wigmore on Ev., sec. 1157; State v. Miles, 190 Mo. l. c. 546.]

Y. The exclusion of testimony offered by defendant. Everett Randolph, a witness for defendant, testified, that he saw deceased and Rankin Long go out of the church together. He followed close behind them. Tie heard Rankin say he would go no farther and then saw deceased strike Rankin and then heard the licks. Asked if defendant John Long was present, he said he saw him just after he got out of the church; that he stepped up to the side of the witness; that defendant, John, took no part in the encounter. Asked if John Long had taken a part in it he could have seen him, he said, “Yes, sir, I could.” To this an objection was made by the State, as incompetent, whereupon the court said: “Let the witness tell where this was and what he did see and let the jury infer what he could have seen; the objection is sustained.” Exception saved. Thereupon the witness testified, that defendant did not come out of the church until after witness did; that neither witness nor defendant came out until after the benediction had been pronounced; that deceased and Rankin preceded them two or three minutes and he followed them and saw the encounter. While the question was proper, it is obvious no harm resulted to defendant, as the witness placed himself right on the scene and testified positively that defendant was at his side and took no part in the struggle: A like objection was made to the question to Gilbert Randolph and his testimony was to the same effect. He came out of the church with defendant and defendant took no part in the difficulty and it must be held the exclusion of his answer as to what he might have seen could not have injured defendant. A similar question was propounded to Ova Scrivener, a witness for defendant, and was sustained by the court, but the witness testified he was standing there and could see deceased and Rankin Long engaged in the difficulty and did not see - defendant John Long there at all and saw no one hit deceased but Rankin Long and saw no one else take part in the difficulty and he could plainly see deceased and Rankin Long engaged in the difficulty, he stood about 12 or 15 feet from them, it was light enough for him to see plainly the persons fighting. Obviously, an answer that he could have seen any other person would have added nothing to his testimony on this point and the exclusion of the question was not reversible error. The court expressly ruled that this witness could tell how light it was and whether he could distinguish those parties, or not and whether he was looking at them all the time or not and whether he did see anybody else go up there.

Again, when Frank Clymer, a witness for defendant, testified, he did not go out of the church until the difficulty was over; did not see defendant after he left the church, he was asked, “If there was anything said there over the body about anybody having hit Joe Butt-ram except Rankin Long, at any time there at the body?” To this counsel for the State objected and the objection was sustained and defendant excepted. This ruling was correct. The answer called for hearsay testimony. The difficulty was over. The deceased was dead and the defendant was not present.

Ed Bohannon, for defendant, was asked if defendant John Long had gone np and hit Buttram, the deceased, or had taken him out of the church, whether or not he could have seen him, and he answered that he could and he thought he would have seen him if he had done so. He testified that John Long did not leave his seat during the services. Asked if he knew John Long did not go to deceased and take him out, the question was objected to and sustained,, but it is clear it was .immaterial, in the light of all his testimony, though we can see no reason for not permitting it. Other testimony as to what was done or said after the meeting closed without confining it to the actors in the difficulty, was excluded and properly so.

VI. The defendant complains that C. A. Newton, an attorney at law other than the prosecuting attorney, was allowed to make the closing argument in the case, but as this was not assigned as error in the motion for new trial, it is not before us for review.

The court instructed the jury on murder in the second degree and manslaughter in the fourth degree; on reasonable doubt and the presumption of innocence, self-defense, and on what constituted aiding, assisting and abetting the killing of the deceased by Rankin Long and what would not constitute the same. As error in the giving of instructions on the part of the State is not assigned in the motion for new trial they are not before us for review.

The defendant requested three instructions. The first was to instruct the jury to find the defendant not guilty. The other two. instructions are as follows:

“2. The court instructs the jury that although you may believe from the evidence that the defendant, John Long, took part in the difficulty in which Joe Butt-ram was stabbed and killed by Rankin Long, yet before the defendant could be convicted of the offense charged in the indictment in this cause, they must find that there was a common purpose in the minds of Rankin Long and John Long, the defendant herein, to kill said Joe Buttram, and that the stabbing and killing of Joe Butt-ram by Rankin Long was done in the accomplishment of such common purpose, or that such stabbing and killing of Joe Buttram was done by said Rankin Long-in accomplishment of a purpose in the mind of Rankin Long to kill said Joe Buttram, and that the said defendant, John Long, had knowledge of such purpose of said Rankin Long, and that he, defendant, did some act, such as striking deceased or aiding, abetting, counseling, encouraging or commanding the said Rankin Long in the accomplishment of such purpose.
“3. The court instructs the jury that even though they believe from the evidence that the defendant, John Long, engaged or took part jn the fight or difficulty in which Joe Buttram was stabbed and killed, yet this fact alone is insufficient to convict the defendant; under the indictment in this case it must further be shown by the evidence, to the satisfaction of the jury, beyond a reasonable doubt, that he, the defendant, with knowledge of the intention of Rankin Long to do said stabbing and killing, aided, abetted, counseled, encouraged, advised or commanded the said Rankin Long to stab and kill said Joe buttram, and unless this proof has been made,- they must find said defendant, John Long, not guilty, although he, said defendant, may have been present, and may have been engaged in the difficulty when the stabbing and killing took place. ’ ’

A comparison of these instructions number 2 and 3, with those given by the court of its own motion will show that the subject was fully covered by the court’s instructions numbered 2, 3 and 6. All that was proper to be said in those instructions had already been said by the court and the failure to repeat it was not error, to say nothing of the inconsistency of the defendant in submitting to the jury an instruction based upon the hypothesis that he was present and "taking part in the fight on the night of the homicide after having testified over and over again that he was not engaged in the difficulty in any manner, shape or form, and did not encourage, assist or countenance his brother in the said fight. But in order to hold him guilty the court in each any every one of its instructions required the jury to find that he was present, aiding, abetting and counseling his brother Rankin Long in committing the homicide, and properly left it to the jury to say whether the killing was murder in' the second degree or manslaughter in the fourth degree as they should find from the facts in evidence under the instructions of the court. We think there was no error in refusing these instructions on the ground that the court’s instructions fully covered' every phase of the case.

YII. It remains now only to consider the refusal of the first instruction asked by the defendant, to-wit, an instruction to acquit the defendant under the evidence. The learned counsel for the defendant in this court asked that the defendant be discharged because of no evidence sufficient to convict him. That the evidence presents a hopeless case of conflict must be conceded. If the testimony of the defendant himself and his witnesses is to be believed, he was not guilty of any offence, he did not take part in the difficulty in which young Buttram was stabbed, and did not come out of the church until after the young man had been fatally stabbed. Moreover, he testifies that he did not incite his brother “to stay with the deceased” as testified to by the other witnesses. On the other hand, if the State’s witnesses are to be credited, an entirely different case is made. According to that evidence, the defendant and his brother Rankin Long and the two Clymer boys attended the meeting at the church on the night of the homicide together. The circumstances under which they met after sundown that evening and apparently changed their plans and concluded to go to the church, was a fact to he considered hy the jury. Several of the witnesses for the State testified that shortly before the closing of the exercises in the church, the defendant came in from the church yard and walked to where deceased was sitting and stopped and whispered to him, and thereupon the deceased got up and walked out of the church with the defendant; about the time they reached the front door, the defendant put his arms around the neck of the deceased and they walked out to where two other men were standing, a short distance from the church. The majority of the evidence tended to show, both on the part of the State and the defendant, that one of these men was Rankin Long, a brother of the defendant, and almost instantly after the deceased had gotten out there Rankin Long began to strike him and stabbed him twice, from the effects of which wound he died. Other witnesses for the State testified that during the assault by Rankin Long upon the deceased the defendant John Long struck the deceased twice with his fists and called to his brother, “Stay with him, Rankin, G — d—him, stay with him.” After the deceased had been fatally wounded and had fallen to the ground, one of the witnesses testified the defendant said, “Me and the kid always stays with him.” Immediately after the deceased had fallen, the defendant and his brother hurriedly left the scene, of the difficulty and were seen riding their horses at a rapid rate going from the church. If the jury believed the testimony of the State’s witnesses, Isaac Connor, Joseph Buttram, Eliza Connor, John Lowry and Jeff Johnson, who testified to these facts, and the verdict indicates that they did believe them, then there can be no doubt that the defendant John Long was present, aiding, abetting and encouraging his brother Rankin Long to stab the deceased, and that he had been instrumental in bringing the deceased out where Rankin Long stood, so as to afford the latter an opportunity of striking and stabbing the deceased. The motive for this homicide is not disclosed by the State’s evidence. On the part of the defendant several of the witnesses testified to a threat on the part of the deceased against Rankin Long to the effect that “he had it in for him,” and that during the services' the deceased had twice passed down the aisle and looked at Rankin Long, had made a face at him, and gritted his teeth at him, but this evidence as to the action of the deceased in the church was denied by other witnesses who observed him as he came and went up and down the aisle of the church. There was also evidence on the part of the defendant that after The deceased and Rankin went out into the yard, the deceased was the aggressor.and attempted to draw a knife, but the evidence for the State tended to contradict this evidence also. There was also evidence tending to show there were no bruises on the neck and head of the deceased, but that was testified to by witnesses for the State, so that it is impossible to reconcile the testimony of the parties to this unfortunate killing. The jury heard all this evidence, saw the witnesses, and it was their peculiar province' to weigh and determine the credibility of the testimony. The trial court who heard the testimony and also saw the witnesses refused to disturb the verdict. This court has often ruled that where there is substantial evidence to sustain the verdict this court will not attempt to weigh the same, but will defer to the finding of the jury as approved by the trial judge. [State v. Smith, 190 Mo. 706; State v. Payne, 194 Mo. 442.]

"We have patiently gone through, all the assignments of error and read the testimony, and in our opinion there is no reversible error, and the judgment of the circuit court must be and is affirmed.

Fox, P. J., and Burgess, J., concur.


source: Caselaw Access Project

author: FOX, P. J.

license: Public Domain

text:
    THE STATE v. WILLIAM, alias BUCK, MILLER, Appellant.
    Division Two,
    February 18, 1908.
    NO BILL OF EXCEPTIONS. Where no bill of exceptions is filed, and the record proper is free from error, the judgment will be affirmed.
    Appeal from St. Louis City Circuit Court. — Ho» Hugo Muench, Judge.
    .Affirmed.

      Herbert S. Hadley, Attorney-General, and Frank Blake, Assistant Attorney-General, for the State.
    The information is drawn under section 1886', Revised Statutes 1899, relating to' burglary second degree, and section 2379, Revised Statutes 1899’, providing for punishment for second offenses, and both the information and the verdict are in proper form. Stale v. Austin, 113 Mo. 538; State v. Manicke, 139 Mo. 545; State v. Moore, 121 Mo. 514. There being no bill of exceptions, and the record proper being free from error, the judgment of the lower court should be affirmed.
   FOX, P. J.

This cause is now before this court upon appeal by the defendant from a judgment of conviction in the circuit court of the city of St. Louis.

On January 9, 1906, the assistant circuit attorney of the city of St. Louis filed an information, duly verified, in the circuit court of the city’ of St. Louis against the defendant, charging that on May 12, 1904, he was convicted of the offense of attempted burglary in the second degree, and sentenced to two years’ imprisonment in the penitentiary, and that he was duly discharged upon lawful compliance with said sentence; that after said discharge, and on the 1st day of January, 1907, he committed the crime of burglary by entering a building of one Herman Applebaum, with thg intent to steal and carry away certain goods, wares and merchandise deposited therein. Defendant was duly arraigned upon January 22, 1907, and the trial occurred on February 8, 1907, and a verdict was rendered by the jury the next day, finding the defendant guilty of burglary in the second degree, and of a former conviction, as charged in the information, and his punishment was assessed at imprisonment in the penitentiary for his natural life. A motion for new trial appears to have been filed on February 13, 1907, and overruled on March 4, 1907. Defendant was duly sentenced on March 9, 1907. An appeal was prayed for and granted on March 30, 1907, and appellant was given until May 11, 1907, within which to file his bill of exceptions, hut the bill was never filed and the case stands upon the record proper:

Upon a consideration of the record proper now before us, we find that this information is predicated and drawn under the provisions of section 1886, Revised Statutes 1899, relating to burglary and larceny in the second degree, and section 2379, Revised Statutes 1899, providing for punishment for the commission of a second offense. The information is in proper form and is in harmony with the cases of State v. Manicke, 139 Mo. 545, and State v. Moore, 121 Mo. 514.

The record discloses that the trial proceeded in due form; the verdict returned and the judgment rendered upon the verdict conform to the requirements of the statute.

Finding- no error in the record proper, the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


author: BURGESS, J.

text:
    THE STATE v. JOSEPH MAYER, Appellant.
    Division Two,
    February 18, 1908.
    1. INFORMATION: Receiving Stolen Property. An information for receiving stolen property knowing the same to have been stolen, which charges defendant with receiving the property “then and there well knowing the said goods, chattels and personal property to have been taken and carried away” from the owner “with the intent on the part of the thief, as aforesaid, to permanently deprive the owner ... of the use thereof,” is invalid, since it does not allege that the defendant knew at the time that the property had been stolen, or that the taking was with the intent to convert the property to the taker’s use. Had the averment been in the language of the statute, that is, that defendant. received the property knowing the same to have been stolen, it would have been good; but the words “to permanently deprive the owner” of his property do not necessarily mean that a crime of any kind has been committed, while the word “stolen” means that a larceny or theft has been committed.
    2. -: Second Information: Suspension of First. Where, after the filing of an information, a second information is filed, charging identically the same offense and based upon the same alleged criminal transaction, the second information operates as a suspension of the first, and a defendant cannot be tried upon said first information while the second remains undisposed of.
    Appeal from St. Louis City Circuit Coupt. — Ron. C. Or rick Bishop, Judge.
    Reversed and remanded.

      Thos. B. Harvey aud Chester H. Krum for appellant.
    . (1) The information upon which defendant was tried states no offense and is fatally defective in failing to allege that he Imew that the property was stolen. The allegation fails utterly to charge the defendant with the knowledge that the property was stolen, and charges only that he knew that the property had been taken and carried away from the owner. And even if it is claimed that the allegation goes further and charges that he knew with what intent it had been taken and carried away, yet that is alleged to be merely an intent “to permanently deprive the owner” of said property. It is not alleged that he Imew that it had been feloniously taken and carried away, or with an intent to steal it, or without the consent of the owner. Sec. 1916, R. S. 1890'. (2) The court' was without power or jurisdiction to try the defendant upon the first information while a second information was pending chargiug the defendant with the same offense. Sec. 2522, R. S. 1899; State v. Taylor, 171 Mo. 465; State v. Williams, 191 Mo. 20'5; State v. Melvin, 166 Mo. 572.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    The information, which was accompanied by the affidavit of the assistant circuit attorney, was sufficient in form and substance. State ,v. Sakowski, 191 Mo. 638; State v. Fink, 186 Mo. 50- R. S. 1890', sec. 1916.
   BURGESS, J.

On the 9th day of November, 1906, under an information filed by the assistant circuit attorney of the city of St, Louis, the defendant was convicted in the circuit court of said city of the crime of receiving stolen property knowing the same to have been stolen, and his punishment assessed at imprisonment in the penitentiary for a term of two years. In due time thereafter defendant filed motions for a new trial and in arrest, which having been overruled by the court, defendant appealed.

It appears from the record that on the 28th day of October 1905, there was filed in the office of the clerk of the circuit court of said city an information which, omitting the formal parts, is as follows:

“Richard M. Johnson, assistant circuit attorney in and for the city of St. Louis aforesaid, within and for the body of the city of St. Louis, on behalf of the State of Missouri, upon his official oath, information makes as follows:
“That Joseph Mayer, on or about the nineteenth day of August, in the year of our Lord one thousand nine hundred and five, at the city of St: Louis aforesaid, three coils of number ten bare copper wire of the weight of three hundred and thirty pounds, and nine' coils of number twelve bare copper wire of the weight of six hundred and seventy-five pounds, all of the value of one hundred and eighty dollars, of the goods, chattels and personal property of the Western Electric Company, a corporation, then lately before feloniously stolen, taken and carried away from the said the Western Electric Company, a corporation as aforesaid, with the intent on the part of the- thief to permanently deprive the owner, the Western Electric Company, a corporation as aforesaid, of the use thereof, feloniously and fraudulently did from the said thief buy, receive and have; the said Joseph Mayer then and there well knowing the said goods, chattels and personal property to have been taken and carried away from the said the Westera Electric Company, a corporation as aforesaid, with the intent on the part of the thief, as aforesaid, to permanently deprive the owner, the said Western Electric Company, a corporation as aforesaid, of the use thereof; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.”

Thereafter, on March 24, 1906, a second information was filed against the defendant, charging identically the same offense and based upon the same alleged criminal transaction, and having endorsed thereon the same witnesses, which said second information, omitting caption and verification, is as follows:

“Arthur N: Sager, circuit attorney in and for the city of St. Louis aforesaid, within and for the body of the city of St. Louis, on behalf of the State of Missouri, upon his official oath, information makes as follows :
.“That Joseph Mayer, on or about the nineteenth day of August in the year of our Lord one thousand nine hundred and five, at the city of S-t. Louis aforesaid, three coils of number ten bare copper wire of the weight of three hundred and thirty pounds, and nine coils of number twelve bare copper wire of the weight of six hundred and seventy-five pounds, all of the value of one hundred and eighty dollars, of the goods, chattels and personal property of the Western Electric Company, a corporation, then lately before feloniously stolen, taken and carried away from the said the Western Electric Company, a corporation as aforesaid, with the intent on the part of the thief to permanently deprive the owner, the Western Electric Company a corporation as aforesaid, of the use thereof, feloniously and fraudulently did from the said thief buy, receive and have, the said Joseph Mayer then and there well knowing the said goods, chattels and personal property to have been stolen, taken and carried away as aforesaid, with the intent on the part of the thief as aforesaid to permanently deprive the owner, the Western Electric Company, a corporation as aforesaid, of the use thereof; contrary to the form of the statute in such case made and provided and against the peace and dignity of the State.”

This second information remained pending from the time it was filed, on March 24, 1906, until it was nolle prosequied on August 5,190*7. While it was pending the defendant was placed upon trial and convicted under the aforesaid first information, and the record shows that the sufficiency of said first information was duly challenged by defendant in his motion in arrest of judgment.

Defendant insists that the first information, being the one under which the conviction was had, states no offense and is fatally defective in that it does not allege that the defendant knew that the property was stolen at the time he is charged with receiving it, the charge being that “Joseph Mayer, then and there well knowing the said goods, chattels and personal property to have been taken and carried away from the said the Western Electric Company, . . . with the intent on the part of the thief, as aforesaid, to permanently deprive the owner, the said Western Electric Company, a corporation as aforesaid, of the use thereof.”

It will he seen that the information does not allege that the defendant knew at the time that the property had been stolen, or that .the taking was with the intent to convert the property to the taker’s use. The statute is leveled at any person who shall buy or in any way receive any goods or personal property of any value whatever from another, knowing the same to have been stolen; not that he knew it to have been taken and carried away with the intent on the part of the thief to permanently deprive the owner thereof. The word “stolen” means that a larceny or theft has been committed, while the words “to permanently deprive the owner” of his property may not necessarily mean that a crime of any kind has been committed. Had the averment been in the language of the statute, that is, that the defendant received the property knowing the same to have been stolen, it would have been good and in accordance'with approved precedents. [State v. Guild, 149 Mo. 370; Bishop’s Directions and Forms (2 Ed.), sec. 916; Kelley’s Criminal Law and Practice.]

Our conclusion is that the information is invalid.

Defendant further insists that the court was without power or jurisdiction to put him upon trial upon the first information while the second information, charging him with the same offense, was pending.

Section 2522, Revised Statutes 1899, is as follows:

“If there be at any time pending against the same defendant two indictments for the same offense, or two indictments for the same matter, although charged as different offenses, the indictment first found shall be deemed to be suspended by such second indictment, and shall be quashed.”

In State v. Williams, 191 Mo. 205, the prosecution was begun upon an information filed on the 16th day of June, 1904. On the 13th day of September, 1904, the prosecuting attorney filed another information against the defendant charging him, in two counts, with felonious assault, by shooting William Trammell with a rifle. Thereafter, on the 29th day of March, 1905, the defendant filed a motion to quash the first information, which motion was overruled. On the 30th day of March, 1905, there was filed a demurrer to the second information upon grounds therein stated, and the same was overruled. There was also filed on March 30,1905, a motion by defendant asking the court to require the prosecuting attorney to elect on which count in the information he would proceed to trial. This motion was also denied, and the trial proceeded upon the second information while the first information still remained undisposed of. The defendant in the case insisted that the trial court committed error in refusing to sustain the motion to quash the first information upon the filing of the second. Fox, P. J., speaking for this court, said:

“The defendant could not be tried upon the first information, so long as the second was pending unquashed. Under the provisions of section 2522, Revised Statutes 1899', it was a matter of no consequence to the defendant whether the court quashed or refused to quash the first information, for its force and vitality was suspended by the filing of the second information, and such suspension remained so long as there -was no disposition of the second information. ’ ’

In State v. Melvin, 166 Mo. l. c. 572, it was held, Gantt, J., speaking for the court, that the finding of a second indictment for the same offense, if the first was not thereafter quashed, merely suspends the first, to which “new life and validity may be imparted by the removal of the obstacle which caused the suspension, to-wit, the second indictment, as was done in this case by quashing the second. ’ ’

Our conclusion is that the judgment should be reversed and the cause remanded both upon the ground of the invalidity of the information and of its suspension at the time defendant was fried and convicted thereunder. It is so ordered.

All concur.


author: GANTT, J.

text:
    THE STATE v. GOLDIE JACKSON, Appellant.
    Division Two,
    February 18, 1908.
    BILL OF EXCEPTIONS: Filed Out of Time: Motion for New Trial. Where defendant files a motion for new trial, which is continued, to the next term and overruled, and no hill of exceptions is filed at the term during which the motion for new trial is overruled, and no leave is asked or obtained to file the hill of exceptions in vacation or at the next term, a bill filed at such subsequent term cannot he considered.
    Appeal from St. Louis City Circuit Court. — Hon. Matt. G. Reynolds, Judge.
    Afeikmed.

      Herbert 8. Hadley} Attorney-General, and N. T. Gentry} Assistant Attorney-General, for the State.
    There is nothing before this court except the record proper, which contains no error. On April 10, 1906, the defendant was tried and convicted. Her motion for a new trial was promptly filed and continued till the next term. At the next term her motion for a Pew trial was overruled. Her motion in arrest was then filed; and said motion was continued till the next term. No. bill of exceptions was filed at the term at which the motion for a new trial was overruled, neither was leave then given to file a bill in the future. Therefore, at the end of the term at which the motion for a new trial was overruled, defendant lost the right to ask the court to file a bill of exceptions, and the trial court lost the power to preserve the proceedings of that term in a bill of exceptions. State v. Harroun, 199' Mo. 258; State v. Goehler, 193 Mo. 177; State v. Larew, 191 Mo. 192; State v. Miller, 189' Mo. 673.
   GANTT, J.

This is an appeal from a sentence of the circuit court of the city of St. Louis.

The defendant was prosecuted by information, duly verified, filed by the circuit attorney of said city. She was duly arraigned and pleaded not guilty. A trial was had on April 10,1906, and resulted in her conviction and sentence to the penitentiary.

The information charged the defendant with the larceny of seventy-five dollars from the person of one Reuthinger in the nighttime. After the verdict of guilty defendant filed her motion for a new trial, which was continued to the next term. At the next term the motion was overruled and she then filed a motion in arrest, which was continued to the next term. No bill of exceptions was filed at the term during which the motion for new trial was overruled, nor was leave asked or obtained to file a bill of exceptions in vacation or at the next term. In this state of the record the Attorney-General insists that all matters of exception are foreclosed, and that there is nothing before us except the record proper, and we think there is no avoidance of this contention. Such was,our ruling in State v. Miller, 189 Mo. 673, and in State v. Larew, 191 Mo. 192, we reviewed all the decisions of this court and reaffirmed the Miller case. Since then the same question has received the same answer in State v. Goehler, 193 Mo. 177, and State v. Harroun, 199 Mo. 258. It necessarily follows that there is nothing before us for consideration save the record proper, and there'is no irregularity or error in that, and the judgment must he and is affirmed.

Fox, P. J., and Burgess, J., concur.


text:
    THE STATE v. WILLIAM McCUNE, Appellant.
    Division Two,
    February 18, 1908.
    BÚRGLARY AND LARCENY: Verdict: Invalid for Uncertainty. Where the information charges defendant with burglary and larceny in one count, a verdict which says, “We, the jury, find the defendant guilty of burglary and larceny, and assess his punishment at five years in the penitentiary,” is invalid for uncertainty.
    Appeal from Scotland Circuit Court. — Hon. Chas. D. Steioart, Judge.
    Reversed and remanded.

      Herbert S. Hadley, Attorney-General, and Frank Blake, Assistant Attorney-General, for the State.
    The verdict is invalid for uncertainty, as it is impossible to tell of which offense defendant was convicted. State v. Rowe, 142 Mo. 439; State v. McGee, 181 Mo. 315; State v. Jones, 168 Mo. 408; R. S. 1899, sec. 1891. .
   FOX, P. J.

The defendant in this cause prosecutes this appeal from a judgment of the circuit court of Scotland county convicting him of burglary and larceny. There was no bill of exceptions filed in this proceeding, hence there is no preservation of the action of the court upon matters occurring during the progress of the trial. This cause is therefore before this court standing alone upon the record proper. The record discloses that on the 10th day of July, 1906, the prosecuting attorney of Scotland county filed an information against the appellant herein jointly with others, charging the commission of the offense of burglary and larceny in one count. Appellant was duly arraigned and on August 21, 1906, was tried. Upon the submission of the cause to the jury they returned the following verdict: “We, the jury, find the defendant guilty of burglary and larceny, and assess his punishment at five years in the penitentiary.n

The verdict is Manifestly erroneous and must be held invalid for uncertainty.

This proposition was in judgment before this court in State v. Rowe, 142 Mo. 439. The charge in that case was similar to the one in the case at bar, burglary in the second degree and grand larceny under the provisions of the statute. This court, speahing through Judge Burgess, expressly ruled that the verdict and judgment are a part of the record in the cause, and the verdict must be certain, positive and free from all ambiguity. The verdict returned in that cause was nearly identical with the one as disclosed by the record before us, and it was held that such verdict could not stand for the reason that it was too indefinite and uncertain, and the case of State v. Butterfield, 75 Mo. 297, in which a different conclusion was reached, was expressly overruled.

To the same effect is State v. Jones, 168 Mo. l. c. 403. The verdict in the case last cited was similar to the case at bar and it was held invalid. These two eases announcing the rule as applicable to the uncertainty of verdicts were cited approvingly in the comparatively recent case of State v. McGee and McGraw, 181 Mo. 312.

The error as herein pointed out respecting the verdict disclosed by the record necessitates the reversal of the judgment.

As this cause must be remanded for a new trial for the reasons heretofore indicated, we simply suggest that the allegation in the information as to the ownership of the building burglarized is by no means clear and entirely satisfactory. We suggest that an amended information be filed and if Thomas O’Day had this property rented or leased and was in possession, the charge should be that he was the owner of the building, or, if preferable, charge the name of the owner in fee of the property and that Thomas O'’Day was the lessee and was in possession.

It is therefore ordered that the judgment of the trial court be and the same is hereby reversed and the cause remanded for further proceeding in accordance with the views herein expressed.

All concur.


text:
    THE STATE v. EARL LOGAN, Appellant.
    Division Two,
    February 18, 1908.
    BURGLARY AND LARCENY: Verdict: Separate Punishment. In a prosecution for burglary and larceny, a verdict of guilty which fails to assess the punishment for each offense separately, is erroneous.
    Appeal from Scotland Circuit Court. — Hon. Chas. D. Stewart, Judge.
    Reversed and remanded.

      Smoot (3 Smoot for appellant.,

      Herbert S. Hadley, Attorney-General, and Frank Blake, Assistant Attorney-General, for the State.
    The verdict is invalid for uncertainty, as it is impossible to tell of which offense defendant was convicted. State v. Rowe, 142 Mo. 439; State v. McGee, 181 Mo. 315; State v. Jones, 168 Mo. 403; R. S. 1899', sec. 1891.
   BURGESS, J.

The defendant was convicted in the circuit court of Scotland county, under an information charging him with burglary and larceny, and his punishment fixed at five years’ imprisonment in the penitentiary. He appeals.

No bill of exceptions was filed, so that the only matters for the consideration of this court are such as appear from the record proper. '

The jury found the defendant guilty of both burglary and larceny, and assessed his punishment at imprisonment in the penitentiary for a term of five years, and the court rendered judgment in accordance with the verdict. The verdict is clearly erroneous, in that it does not fix the punishment for each offense separately. A similar verdict was held erroneous in the case of State v. Rowe, 142 Mo. 439, in which the case of State v. Butterfield, 75 Mo. 297, which ruled to the contrary, was expressly overruled. In State v. Jones, 168 Mo. 398, Rowe’s case was followed with approval, as well also as in the case of State v. McGee and McGraw, 181 Mo. 312. Again, in the recent case of State v. McCune, 209 Mo. 399, a similar verdict is held to be erroneous. We also direct attention to the suggestions made in the case last cited respecting the necessity of a clear and specific allegation of the ownership of the building charged to' have been burglarized.

The judgment is reversed, and the cause remanded.

All concur.


text:
    THE STATE v. LUTHER BARTLETT, Appellant.
    Division Two,
    February 18, 1908.
    ASSAULT WITH INTENT TO KILL: Malice Aforethought: Evidence: Instruction. Where the evidence shows that defendant came np behind the prosecuting witness, who was unaware of his presence, holding in his hands a baseball bat thirty-one inches long and weighing one and one-half pounds, and that, holding the bat with both hands, he struck the prosecuting witness on the back of the neck, felling him to the ground and rendering him unconscious, and that after he was down he again s,truck him on the breast with the bat, and defendant’s own evidence shows that there was no provocation for the assault,— it is not error to instruct on assault with malice aforethought.
    Appeal from Randolph Circuit Court. — Ho». Aubrey B. 'Hammett, Special Judge.
    Affirmed.

      Willard P. Cave and Emil F. Gutekunst for appellant.
    (1) The court erred in giving instructions 1 and 2 on the part of the State. State v. Reynolds, 126 Mo. 149; State v. Branstettor, 65 Mo. 148; State v. Palmer, 88 Mo. 568. (2) The court erred in not instructing the jury under sections 1848 and 1849', Revised Statutes 1899. State v. Nelson, 118 Mo. 124; State v. Taylor, 118 Mo. 153; State v. Rufus, 149' Mo. 406.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) Instruction 1 correctly defined the crime of assault with intent to kill, and also told the jury what was the punishment therefor. State v. Jones, 86 Mo. 625. (2) The evidence for the State was sufficient, if believed by the jury, to warrant the verdict of guilty. If the State’s witnesses told the truth about this difficulty, defendant was certainly guilty of a most uncalled for and brutal assault. It is doubtful even if defendant’s own testimony was sufficient to acquit him on the ground of self-defense. Where there is substantial evidence tending to show that defendant is guilty, this court will defer to the finding of the jury and affirm the'judgment. State v. Smith, 190 Mo. 706; State v. Groves, 194 Mo. 452; State v. Payne, 194 Mo. 442; State v. Swisher, 186 Mo. 8.
   GANTT, J.

This is an appeal from a judgment of the circuit court of Randolph county. On the 26th day of June, 1906, the prosecuting attorney filed an information in the circuit court, duly verified, charging the defendant with having, on the 18th day of June, 1906, at said county, in and upon the body of Polie Bealey, feloniously, on purpose and of his malice aforethought, made an assault and with a, deadly weapon, to-wit, a baseball bat of the length of thirty-one and three-quarters inches and of the weight of one and one-half pounds, which he the said Luther Bartlett in his hands then and there had and held, him, the said Polie Bealey, did then and there feloniously, on purpose and of his malice aforethought strike, beat and wound, with intent then and there him the said Polie Bealey feloniously, on purpose and of his malice aforethought to kill and murder. The defendant was arrested and duly arraigned, and at the October term, 1906, was tried and convicted and his punishment assessed at six years in the penitentiary. Having duly moved for a new trial and in arrest of judgment, and his motions having been overruled, he appeals to this court.

The evidence on the part of the State tended to prove that the defendant was a stepson of P’olie Bealey. It appears from the evidence that on Sunday preceding the assault on Monday, the prosecuting witness, Bealey, and his wife had a difficulty and the prosecuting witness slapped his wife. The defendant came home to the house where^ the prosecuting witness and his mother were living, on Monday morning. The parties were all negroes, and the defendant and the prosecuting witness got into a wordy altercation about the difficulty between the prosecuting witness and his wife the day before, which resulted finally in the defendant’s assaulting the prosecuting witness. A complaint was made before the police judge against the prosecuting witness for assaulting his wife, and he in turn made complaint against the defendant for assaulting him. They were both arrested and taken before the police court and pleaded guilty and were fined. The prosecuting witness paid his fine and walked down the street to a furniture store to buy some article, but not having money enough, came out to go across the street to collect a bill due him. At the door of the furniture store there was a rack containing a lot of baseball bats, and the evidence tended to show that as he passed out of the store the defendant approached him and took one o,f these baseball bats out of the rack and walked up behind the prosecuting witness, who did not see him, and taking both hands to the bat, struck the prosecuting witness on the back of the neck and felled him to the ground rendering him unconscious, and then after he was down, again struck him on the breast with the bat. The bat was offered in evidence and was about thirty-one inches in length and weighed about one and one-half pounds. Doctor Irwin witnessed the assault and afterwards treated the prosecuting witness professionally. He testified that the prosecuting witness was struck on the side of the neck; that he complained of his neck and chest and spit up blood for several days afterwards. A number of eye-witnesses testified to seeing the assault by the defendant on the prosecuting witness, and testified that the latter was not doing anything or making any demonstration towards the defendant when he struck him. They also testified that when they went to the prosecuting witness, he appeared entirely unconscious and looked like he was dead, did not seem to know anything.

The defendant testified in his own behalf and gave his version of the affair as follows: “He had me arrested. They called my trial at one o’clock, and after the trial I went down the street and met my sister and we started back up Clark street and Mr. Bealey, the prosecuting witness, came up and he commenced talking to my sister, and she said, never mind, she did not want to talk to him, and me and him got into some words and I grabbed the bat and hit him. ’ ’ On cross-examination, he was asked what he hit him for and he answered, “Because he made me angry. He was annoying my sister. I did not know what he wanted to talk about.” Q. “He was not trying to hurt you?” A. “Not that I know of; the prosecuting witness had nothing, and when I hit him my sister hollowed and I dropped the bat.” Asked if he did not hit Mm the second time, he answered that he “did not remember.” “When he wanted to talk with my sister, he said it was none of my business, and then I took up the bat and hit him.” There was much irrelevant evidence introduced without objection on either side, which it is unnecessary to consider or comment upon. The court instructed the jury on assault on purpose and with malice aforethought, and, at the request of the defendant, on common assault. The court also instructed on reasonable doubt, and defined the words “on purpose and of his malice aforethought, ’ ’ and also instructed on the presumption of innocence.

The information is sufficient in form and substance under section 1847, Revised Statutes 1890. The only ground upon which reversal is sought in this court is that the court erred in instructing on assault with malice aforethought and in not instructing the jury under sections 1848 and 1849'. It is insisted that the evidence did not support a charge under section 1847, or an assault on purpose and with malice aforethought. With this contention we cannot agree. By their verdict the jury found that the defendant assaulted the prosecuting witness with a deadly weapon and the evidence from a number of eye-witnesses fully established that the defendant with this deadly weapon came up behind the prosecuting witness, who was unaware of his presence, and-taking a bat with both hands, struck him a blow which felled him to the ground and rendered him unconscious, and then after he had fallen, struck him a second time on the breast. We think the evidence fully sustained the charge in the information. As already said, the court, however, at the request of the defendant charged the jury for a common assault. Considering the character of the weapon used and the manner and force with which it was used upon the unsuspecting victim, and the point on his body at which he struck him, the offense was clearly that which is defined in section 1847. No exception was taken at the time to the failure of the court to instruct the jury under section 1848, Revised Statutes 1899. The defendant’s own testimony shows that there was not the slightest provocation for the murderous assault, which he made upon the prosecuting witness. This court has often ruled that it was not the duty of the trial court to invite the jury to find the defendant guilty of a less offense than that of which the evidence clearly showed him guilty.

In our opinion the verdict of the jury was amply warranted by the testimony in the case, the defendant had a fair and impartial trial, and the judgment should be and is affirmed.

Fox, P. J., and Burgess, J., concur.


text:
    THE STATE v. ANDY SKILLMAN, Appellant.
    Division Two,
    February 18, 1908.
    INFORMATION: Conclusion: Omission of “The.” An information which concludes, “against the peace and dignity of State,” omitting the word “the” immediately preceding the word “State,” is invalid, since it violates section 38, article 6 of the Constitution, which provides that “all indictments shall conclude, ‘against the peace and dignity of the State,’ ” (Following State v. Campbell, 210 Mo. —.)
    Appeal from Bates Circuit Court. — How. Wm. II. Martin, Special Judge.
    Reversed and remanded.

      Miles 8. Horn and Francisco & Ciarle for 'appellant.
    Where the Constitution requires the conclusion “against the peace and dignity of the State,” the omission of the word “the” before “State” in an information is fatal. 10 Am. and Eng. Ency. Law (1 Ed.), 514; Thompson v. State, 15 Tex. App. 168; 15 Tex. App. 39; State v. Allen, 8 W. Va. 680. (1) Even where exact literal compliance is not insisted upon, as where words are added, the words of the Constitution will be found required. The conclusion must conform in sense and substance to the requirements of the Constitution, and any material variance, like the one complained of, is fatal. State v. Kean, 10 N. H. 347; Selected ease, 34 Am. Dec. 162; State v. Robinson, 27 S. C. 615; State v. Washington, 1 Bay (S. C.) 120 ; State v. Anthony, 1 McCord (S. C.) 285; State v. Pratt, 44 Tex. 93; Hans v. State, 13 Tex. App. 383; Selected case, 44 Am. Rep. 706; State v. Cox, 8 Tex. App. 254; Hays v. State, 78 Mo. 600; Williams v. State, 27 Wis. 402; Lemons v. State, 4 W. Ya. 755. (2) Neither “the” nor “State” standing alone express the constitutional sense or meaning intended by tbe required sentence “against tbe peace and dignity of the State.” Tbe language means against the peace and dignity of tbe State of Missouri. State v. Hays, 78 Mo. 600; State v. Pratt, 44 Tex. 93. Tbe word “State” standing alone does not imply this. The definite article “tbe” is necessary to specify, designate and limit tbe meaning of tbe word “ State. ’ ’ For example, there can be no question of what is meant by “Tbe Twelve Apostles,” but “Twelve Apostles” may refer to quite a different body. Definitions of “tbe” and “State” in Standard Dictionaries; 8 Words and Phrases Judicially Defined, p. 6836. (3) Tbe article “tbe” directs what particular thing or things we are to take or assume as spoken of. It determines what particular thing is meant; that is, wha,t particular thing we are to assume to be meant. It is used before nouns with a specifying or particularizing effect. 8 Words and Phrases Judicially Defined, p. 6836; U. S. v. Hudson, 65 Fed. 71; Wastl v. Railroad, 24 Mont. 159; Noyes v. Childrens Aid Soe., 70 N. Y. 484; 61 Pac. 15.

      Herbert 8. Hadley, Attpmey-General, and N. T. Gentry, Assistant Attorney-General, for tbe State.
    (1) Tbe information is sufficient in form and substance ; it was accompanied by tbe affidavit of tbe prosecuting attorney. State v. Oakes, 202 Mo. 86; R. S. 1899, see. 1845; Kelley’s Crim. Law, sec. 556. (2) Tbe article “tbe” is an unimportant word frequently omitted in common conversation and in writing where it could properly be used, and in some languages, as tbe Latin, being supplied when necessary, there being no specific word to represent it. And under tbe law, its omission clearly did not invalidate tbe indictment. State v. Waters, 1 Mo. App. 9; 1 Bisb. New Crim. Proc., p. 652; Anderson v. State, 5 Ark.' 444; State v. Kean, 10 N. H. 347; State v. Robinson, 27 S. C. 615; State v. Pratt, 44 Tex. 98; State v. Smith, 63 N. C. 237. It is impossible to see how defendant’s counsel were misled by tbe omission of said word. No motion to quash tbe information was filed, and tbe error, if error it can be called, was so insignificant and affected defendant’s rights to sucb an infinitely small extent, if at all, that it cannot be said to be prejudicial. It was clearly tbe intention that sucb errors would be cured by tbe Statute of Jeofails. R. S. 1899, secs. 672. 2481.
   FOX, P. J.

On tbe 17th day of December, 1906, A. B. Ludwick, prosecuting attorney of Bates county, filed an information, duly verified, charging defendant with defiling one Myrtle McCulloch, a female under tbe age of fifteen years, alleged to have been confided to bis care and custody, thus sustaining to him tbe relation of ward. On February 7, 1907, W. B. Dawson having been elected prosecuting attorney, an amended information was filed. This amended information was in two counts. Tbe first count followed tbe former information, except in tbe manner of its conclusion, and tbe second count charged that tbe defendant was guilty of carnal knowledge of a female between tbe ages of fourteen and eighteen years, of previously chaste character. The defendant moved to quash tbe first information, but this tbe court refused to do, leaving both standing. Tbe regular judge of tbe court having been disqualified, Hon. W. H. Martin, judge of tbe Fourteenth Judicial Circuit, was called in to preside at tbe trial. Tbe case coming on for trial, tbe second count of tbe amended information was dismissed, and after a mistrial tbe defendant was convicted upon tbe first count of said amended information and bis punishment assessed at imprisonment in tbe penitentiary for a term; of two years. Motions for new trial and in arrest of judgment were filed in due time and by tbe court overruled. Judgment and sentence having been entered in conformity to the verdict, defendant appeals.

The sufficiency of the first count of the amended information upon which this prosecution and judgment are predicated being challenged, we deem it proper to reproduce it. It was as follows:

“Now on this 6th day of February, 1907, comes W. B. Dawson, prosecuting attorney within and for the county of Bates and State of Missouri, and informs the court on his official oath that on the ----day of July, 1906, one Andy Skillman, late of the county of Bates and State of Missouri, at the county of Bates and State of Missouri, being then and there a person to whose care and protection one Myrtle McCulloch, a female under the age of eighteen years, to-wit, of the age of fifteen years, had been and was then and there confided, her, the said Myrtle McCulloch, unlawfully and feloniously did defile, by then and there unlawfully and feloniously carnally knowing her and having carnal knowledge of her body while she remained in his care and protection, custody and employment, she, the said Myrtle McCulloch, being then” and there confided to the care, custody and employment of the said Andy Skill-man, against the peace and dignity of State.”

It is not essential to detail the testimony introduced on the part of the State or of the defendant upon the trial of this cause. It is sufficient, in order to determine the legal propositions involved in this controversy, to simply state that the testimony was conflicting, the testimony on the part of the State tending to establish the charge as contained in the information, and that on the part of the defendant to establish the innocence of the defendant of such charge. This is a sufficient reference to the disclosures of the record, and the cause is now before us for consideration.

OPINION.

The brief of learned counsel for appellant presents but one proposition for our consideration, that is, that the first count of the amended’ information upon which this prosecution and judgment are predicated fails to conclude “against the peace and dignity of the State,” as required by section 38, article 6 of the Constitution of this State. The conclusion to the information in judgment before us is. in this language: “Against the peace and dignity of State,” and the complaint of counsel for appellant is directed to this conclusion on the ground that the word “the” is omitted immediately preceding the word ‘ ‘ State. ’ ’

We were confronted with this identical proposition in the case of State v. Bruce Campbell, 210 Mo. —. What was said in the discussion of this proposition in that case is applicable to the same proposition involved in the ease at bar, and must be held decisive of it. It was there ruled that the conclusion to the indictment did not conform to the terms prescribed by the Constitution, and the same ruling must be made in the case at bar.

It is therefore ordered that the judgment of the trial court in this cause be reversed and the cause remanded, to the end that such further orders may be made concerning this cause, touching a new charge, as the court may deem proper, in accordance with the provisions of the statute.

All concur.