text:
    THE STATE v. J. J. FINLEY, Appellant.
    Division Two,
    November 13, 1912.
    .1. EVIDENCE: Plat. The introduction, in evidence of a plat or diagram of the place where the homicide was committed, which one witness for the State testified was not exactly correct, and upon which a witness made a mark in the presence of the jury to indicate where deceased was standing when stabbed, but in all essential particulars a duplicate of another plat introduced by defendant, and both so meagre in their outlines as to neither elucidate nor to mislead or influence the jury, was not error.
    2. -: Dying Declaration: Exclusion: No Proffer of Substance. Although the witness did not testify that deceased testified he was about to die, yet if deceased had previously told other persons that he “was mighty bad, and bound to die,” what deceased said to the witness, if otherwise competent, is admissible in evidence as a dying declaration; but in order for the appellate court to hold its exclusion to he error, it was necessary for defendant to have made known to the trial court what the witness would testify deceased had said; and the proper 245 Mo — 30 method of determining its competency is for the court to exclude the jury, and after hearing the evidence and the foundation for its introduction, determine whether or not it should be admitted.
    3. -: -r: Deceased’s Opinion. A statement' by deceased, in extremis, that he was to blame for bringing on the difficulty, without reciting the acts he did, was a mere opinion, and not admissible.
    4. -: -: Cumulative. The exclusion of testimony of witnesses for defendant of dying declarations made by deceased which are mere repetitions of declarations narrated by fhe State’s witnesses, is not error.
    5. -: Leading Questions: Nonprejudiciai Answers. Although the trial court abused its discretion in permitting many questions to be asked which suggested the answers desired, yet if the witnesses did not follow the suggested lead, but gave answers indicating they were circumspect, relied upon their memories and were not unduly friendly to the prosecution, there was no reversible error. ’

    6. INSTRUCTIONS: Murder in Second Degree: Violent Passion Not Defined. An instruction on murder in the second degree, in which the words “violent passion” are used without being defined, is not error, if defendant was convicted of a lower grade of homicide, though there was evidence upon which a conviction of murder in the second degree could be sustained.
    7. -: Manslaughter: Provocation. Violent passion suddenly aroused by insulting and abusive language, used by deceased towards defendant, will not reduce the killing with a knife to manslaughter. Mere words never justify a felonious assault with a deadly weapon.
    8. -; Credibility of Witnesses: Relation to Other Parties. An instruction telling the jury to consider the “character of each witness, his or her manner on the stand, his or her interest, if any, in the result of the trial, and his or her relation or feeling for defendant or any other party or witness connected with the case,” is somewhat broader than proper, but if there is noth- , ing in the record to indicate why it was not just as favorable to defendant as to the State, it will not be held to be reversible error.
    9. REMARKS OF COUNSEL: No Exception. If no exceptions were saved to the court’s failure to rule on objections to counsel’s remarks or to rebuke counsel for making them, the failure of the court to do so is not for review.

      10, TRIAL: Examination by Special Counsel. It is not error to permit special counsel for the State to conduct the examination of the State’s witnesses.
    Appeal from Pemiscot Circuit Court. — Hon. W. 8. C. Walker, Judge.
    Affirmed.

      Ward & Collins for appellant.
    (1) Grievous errors were committed in the admission of incompetent, irrelevant and. immaterial testimony over the objections and exceptions of the defendant in the trial, and in the leading and improper manner in which it was elicited from the State’s witnesses. The appellant’s conviction was brought about by incompetent testimony in answer to questions most flagrantly leading. State v. Whalen, 148 Mo. 286; State v. Keath, 53 Mo. App. 383; State v. Napper, 141 Mo. 401. (2) The plat or diagram, although not shown by any witness to be correct, but, on the contrary, was shown to have been incorrect, was admitted in evidence over the appellant’s objections and exceptions and stood before the jury, although a silent, yet a volume-speaking witness of untruths and inaccuracies against the appellant. State v. Bidstrupp, 237 Mo. 283; Underhill on Crim. Ev. (2 Ed.), Sec. 52; 17 Cyc. 412; 4 Ency. Ev. 641. (3) Appellant should have been permitted to show that deceased while under the sense of impending death stated the facts relating to the killing and the circumstances attending it. State v. Craig, 190 Mo. 332; State v. Kelleher, 201 Mo. 614; State v. Nocton, 121 Mo. 550; 1 Greenleaf on Ev. (14 Ed.), Sec. 158; 3 Russell on Crimes (9 Am. Ed.), 250; 6 Am. & Eng. Ency. Law, 108; House v. State, 21 L. R. A. (N. S.) 840; State v. Doris, 10 L. R. A. (N. S.) 660; Worthington v. State, 92 Md. 222; Worthington v. State, 56 L. R. A. (N. S.) 353; State v. Draper, 65 Mo. 335. (4) It was the duty of the trial court when objection was made to the remark of the assisting counsel for the State to rule on such objection, and its failure to do so is reversible error in this case. Morrison v. Turnbaugh, 192 Mo. 427; State v. Spivey, 191 Mo. 87; State v.. Woodward, 191 Mo. 619. (5) Had appellant’s violent passion been produced by any lawful provocation he would have been guilty of no greater offense than manslaughter. The instruction is further erroneous because the court used the words “violent'passion” and did not in this or in any other instruction define the meaning of these words. The failure in instructions to explain the meaning of such expressions as “violent passion,” “in heat of passion,” “upon sudden provocation,” and like expressions is erroneous. State v. Reed, 154 Mo. 122; State v. Strong, 153 Mo. 548; State v. McKensie, 102 Mo. 620; State v. Andrews, 76 Mo. 101; State v. Skaggs, 159 Mo. 581. This instruction is erroneous for the further reason that every eyewitness to this homicide stated that deceased was either in a striking attitude, or did strike appellant before appellant used his knife. Hence there was no evidence upon which to predicate an instruction that appellant used his knife in a “violent passion suddenly aroused by insulting and abusive language.” In this instruction the trial court singled out only a part of the conduct of the deceased which may have tended to produce “violent passion” on the part of the appellant. State ,v. Hibler, 149 Mo. 478; State v. Rutherford, 152 Mo. 124. (6) The evidence in support of the prosecution was not offered by the prosecuting attorney, hut by assistant counsel for the State. The accused has the right to look to the prosecuting attorney, who acts under his official oath, to safeguard his rights and to have'no advantage taken of him. Sec. 5231, R. S. 1909.

      Elliott W. Major, Attorney-General, and Charles G. Bevelle, Assistant Attorney-General, for the State.
    (1) Objections are made that the State was permitted to ask certain leading and suggestive questions, but it is now a well-settled rule in this State that whether this should or should not be done rests in the sound discretion of the trial court, and a judgment will not be reversed upon that ground unless it affirmatively appears that the discretion has been unwisely and arbitrarily exercised. It nowhere appears in this record that the court abused its discretion in this respect. State v. Whalen, 148 Mo. 290; State v. Woodward, 191 Mo. 617; State v. Bateman, 198 Mo. 212. (2) To render dying declarations admissible it mnst appear that the party, when making them, believed that his dissolution was near at hand, and that he had abandoned all hope of recovery. The declaration mnst not only be made by the declarant under a sense of the actual nearness of death, but there must be an absolute conviction of it in his mind. It is not enough that he should have thought he would ultimately never recover, but the declaration must have been made under an impression of almost immediate dissolution. State v. Johnson, 118 Mo. 501; State v. Simon, 50 Mo. 373; State v. Partlow, 90 Mo. 629; State v. Horn, 204 Mo. 547; State v. Parker, 172 Mo. 202. Appellant at no time indicated or placed in the record anything tending to show the statement or character of the statement which he sought to elicit, and this court is therefore unable to determine whether such statement was competent or material. The rejection of testimony is not open for review if the defendant, at the time of the exclusion of such evidence, made no offer of proof and no statement of what he expected to prove, but simply saved his exceptions. State v. Eoister, 202 Mo. 48; State v. Arnold, 206 Mo. 597; State v. Page, 212 Mo. 238 • State v. Martin, 124 Mo. 514; State v. Hodges, 144 Mo. 50. This court cannot declare from the record, that the statements which appellant sought to elicit would have been favorable to or in aid of his defense, or that such statements related to the act or circumstances of the killing. Dying declarations, to.be admissible, must be'restricted to the identification of the accused, the act of killing, the circumstances immediately attending it, and all those matters which form a part of the res gestae, but as to all matters occurring anterior or subsequent to the killing, and not immediately connected with it, saíne are inadmissible. State v. Draper, 65 Mo. 335; State v. Vansant, 80 Mo. 67; State v. Chambers, 87 Mo. 406; State v. Parker, 96 Mo. 382; State v. Welsor, 117 Mo. 570; State v. Horn, 204 Mo. 547; State v. Kelleher, 201 Mo. 632; Sec. 5115, R. S. 1909; State v. Lett, 85 Mo. 52. The statements, “That Jade [appellant] was not to, blame,” and “he said he brought it on himself,” were wholly inadmissible as dying declarations because they gave merely the conclusions of a party not to the record, unaccompanied by the facts. State v. Elkins, 101 Mo. 344; State v. Evans, 124 Mo. 397; State v. Horn, 204 Mo. 548; State v. Kelleher, 201 Mo. 614; State v. Welsor, 117 Mo. 570; State v. Chambers, 87 Mo. 406; State v. Parker, 96 Mo. 382. (3) Appellant saved no exception to remarks nor to the failure of the court to reprimand the State’s counsel. State v. Chenault, 212 Mo. 137; Champaign v. Harney, 189 Mo. 709; State v. Valley, 196 Mo. 29; State v. McCarver, 194 Mo» 717. (4) Appellant was not convicted of second degree murder, but of fourth degree manslaughter, and, under such conditions, he cannot complain of any error in an instruction on second degree murder. State v. Haynes, 160 Mo. 567; State v. Evans, 158 Mo. 605; State v. Eaton, 75 Mo. 591; State v. Sansone, 116 Mo. 1; State v. Alfrey, 124 Mo. 393; State v. Darling, 199 Mo. 202; State v. Waters, 144 Mo. 341. (5) If it were necessary to define the term “violent passion” at all, we submit that same was sufficiently defined by the instruction in which the term is used. It substantially told the jury that a “violent passion” was one ‘ ‘ suddenly aroused by insulting or abusive language. ’ ’ State v. Kinder, 184 Mo. 297; State v. Rose, 142 Mo. 429. A failure to in any manner define such terms, if error at all, is error in favor of the defendant. State v. Sharp, 233 Mo. 289.
   BROWN, P. J.

— Tried in the circuit court of Pemiscot county on a charge of murdering his father-in-law, M. B. Holt, on August 4, 1909, defendant was convicted of the crime of manslaughter in the fourth degree, and appeals.

Both parties resided in the village of Cottonwood Point in Pemiscot county, and were owners of ferries on the Mississippi river. A fierce rivalry in the ferry business seems to have indirectly brought about the difficulty which resulted in the tragedy. Defendant established his ferry near one long owned and operated by his father-in-law, the deceased. This displeased deceased very much, and he made many threats against defendant, to the effect that he was going to stop defendant from running a ferry, if he had to use rough means to do so. Some of these threats were communicated to the defendant before the killing took place.

It appears that the fare for a round trip across the river at Cottonwood Point was $3.50. On the morning of August 4, 1909, defendant offered to ferry a man and wagon for seventy-five cents; whereupon deceased offered to ferry him for less. The bidding continued until deceased cut the price to forty cents. Deceased then walked up on the porch of a near-by drug store and sat down. Defendant started up the street with the apparent intention of passing the drug store. Deceased, who was in an angry mood, said to defendant, in the presence of several persons, “You lived in my house a year and paid no rent.” To this, defendant replied, “Come up to James’s store” [a few steps distant], “and I will show you that you received credit for every penny of the rent.” Deceased replied, “My wife stole grub for my,table last year to feed your family during six months you were loafing.” This seemed to anger defendant very much. He called deceased a liar, and walked up on the porch of the drug store and stabbed him with a pocket knife. Deceased made such resistance as he could with his fists and, after he was stabbed, struck defendant with a piece of wood which he picked up after the fight began.

As to who was the aggressor, the evidence is conflicting. Some witnesses testified that the deceased made no hostile demonstration except to stand with his fists clenched, until defendant began stabbing him; while others testified that deceased struck defendant with his fist and ran his hand in his pocket as if to draw a knife, before he was assaulted.

Dr. Sharp, a witness for the State, who attended deceased immediately after the stabbing, stated that deceased informed him that at the time he was stabbed he had left his knife with his wife; that this was the first time he had been without a knife in many years; that if he had had his knife at the time of the difficulty, the doctor would have had two men to sew up instead of one.

There is no dispute over the "fact that immediately after the quarrel began defendant walked up on the porch of the drug store where deceased was sitting; but defendant claims that he was starting in the drug store to make a purchase, and did not go on the porch to attack deceased.

The evidence is uniform to the effect that deceased was a quarrelsome, overbearing, dangerous man, while defendant was inclined to be peaceable.

To shorten this opinion, we will give such other facts as are necessary to a full understanding of the case in connection with the conclusion we have reached in reviewing the alleged errors of the trial court.

I. Defendant complains of the introduction of a plat or diagram of the place where the crime was committed.

One witness for the State testified that this plat was not exactly correct. It was a very meagre plat, and we doubt if it impressed the jury in any manner. In all essential particulars it is a duplicate of another diagram introduced by the defendant. One of the witnesses made a small cross on the plat in the presence of the jury, to indicate where deceased was standing when stabbed. There are three such marks on the plat, without anything to inform us which of them was made by the witness. Neither the plat introduced by the State nor the one introduced by defendant are any help to us in understanding the evidence. They are too meagre to either elucidate or mislead; and we cannot say that the defendant was harmed by the one introduced by the State.

II. Error is assigned in the trial court’s ruling excluding the evidence of Judge Brasher, by which defendant undertook to prove an oral dying declaration of deceased. Said witness did not testify that deceased knew he was about to die; but it appears from the evidence of other -witnesses that prior to Judge Brasher’s visit, deceased had told other persons that he was “mighty bad, and bound to die.”

This was sufficient foundation for admitting the evidence of Judge Brasher. However, the record does not show what he would have testified to; therefore, we cannot determine whether'Ms evidence would have been favorable to defendant or whether it was admissible at all.

The proper method for the introduction of evidence of oral dying declarations, is for the court to exclude the jury and after hearing the evidence and the foundation for its introduction, determine whether or not it should be admitted.

The defendant did not ask for the exclusion of the jury when offering evidence of oral dying declarations alleged to have been made to Judge Brasher; it is therefore impossible for us to ascertain whether the defendant was prejudiced by the exclusion of such dying declarations. [State v. Page, 212 Mo. 224, l. c. 238.]

Complaint is further made that the court struck out a dying declaration heard by the wife of defendant to the effect that deceased said he was to blame in bringing on the difficulty. It is not contended that deceased recited the acts which he did toward bringing on the difficulty. Therefore, such statement, if made by deceased, was a mere opinion, and not admissible. [State v. Horn, 204 Mo. 528.]

If we are to judge the excluded evidence of dying declarations by those declarations which were introduced, we would not hesitate to pronounce their exclusion a harmless error for another reason. They were mere repetitions of the testimony introduced by the State which fully established the fact that deceased brought on the fight by his insulting remarks to defendant while the latter was in the peace.

The statements regarding what deceased would have done if he had possessed a knife, were made to Dr. Sharp, the State’s witness, and testified to by him without objection.

There being no conflict in the evidence on that point, the jury must have believed that deceased brought on the quarrel which resulted in his death; but as to whether he struck or attempted to strike the first blow or intended to fight at all, when he began the quarrel, are matters very much in dispute.

III. The defendant’s complaint that the court permitted the prosecutor and special counsel for the State to propound leading questions to the witnesses, is well founded. The court abused its discretion by permitting many questions to be asked in such form as to clearly suggest the answers desired. This would justify us in reversing the judgment, were it not for the fact that those leading questions did not produce the mischievous results which their authors intended. A careful examination of the testimony given by the witnesses for the State convinces us that they were not hostile to defendant nor unduly friendly to the prosecution; and when asked questions which suggested erroneous answers, they were circumspect enough not to be misled, but gave answers indicating that they relied'upon their memories and that their evidence was not tainted with personal bias. With the record in this condition, we cannot reverse the judgment on account of errors in permitting leading questions to be propounded.

IV. Defendant alleges tjiat the trial court erred in its instruction defining murder in the second degree, by using the words “violent passion,” without defining same. He cites: State v. Reed, 154 Mo. 122; State v. Strong, 153 Mo. 548; State v. McKinzie, 102 Mo. 620; State v. Andrew, 76 Mo. 101; and State v. Skaggs, 159 Mo. 581.

These cases lend some color to defendant’s contention, but they do not justify a reversal in this case, for the reason that defendant was not convicted of murder in the second degree, but of a lower grade of crime. [State v. Haines, 160 Mo. 555, l. c. 567.] There was evidence upon which a conviction of murder in the second degree could be sustained; hence there was no error in giving the instruction on that crime.

Defendant’s contention that “violent passion suddenly aroused by insulting and abusive language ” used by deceased toward defendant would reduce the killing to manslaughter, is unsound. Mere words never justify a felonious assault with a deadly weapon. [State v. Barrett, 240 Mo. 161, and cases there cited.]

' V. Further complaint is made of the phraseology of an instruction given on the part of the State as to the credibility of witnesses, in which instruction the jury were told to consider the “ character of each witness, his or her manner on the stand, his or her interest if any in the result of the trial, and' his or her relation or feeling for defendant or any other party or witness connected with the case.”

The words italicized are objected to as embracing too many persons. This instruction is somewhat broader than it should have been. Several relatives of both deceased and defendant were witnesses, and we are not able, after careful consideration of defendant’s arguments, to understand why the instruction was not just as favorable to him as to the State. For aught we know by the record some of the witnesses might have been related to the prosecuting attorney or special counsel for the State and that fact known to the jury and court.

We are confident that no substantial right of defendant was invaded by giving the instruction complained of. We cannot reverse judgments except for errors prejudicial to the c ‘ substantial rights of the defendant upon the merits.” This point is also ruled against defendant. [Sec. 5115, R. S. 1909.]

VI. The defendant objected to certain remarks of the special counsel for the State, and assigns error on the part of the court in failing to rebuke him. The transgression of special counsel against which complaint is made, was not of a serious nature. No exception was saved to the court’s failure to rule on or to rebuke counsel, and therefore the point is not before us for review. [State v. Chenault, 212 Mo. 137; State v. Phillips, 233 Mo. 299, l. c. 306.]

VII. Error is also assigned in the trial court’s action in permitting special counsel to conduct the examination of witnesses for the State. This assignment must also be disregarded. [State v. Stark, 72 Mo. 37; State v. Coleman, 199 Mo. 120.]

The information must be preferred by the prosecuting attorney, but after that is done, we see no reason why a special counsel may not conduct the trial in the same manner as the public prosecutor. He is. under the eye of the court and must conform to all the rules of the court and laws which regulate the conduct of the prosecuting attorney..

Other matters of minor significance are urged by the defendant. We have considered them, but do not think they are of enough importance to deserve mention in this opinion.

The accused was defended by resourceful counsel who carefully guarded all his rights.

The record contains no reversible error, and we therefore affirm the judgment.

Ferriss and Kennish, JJ., concur.


source: Caselaw Access Project

author: KENNISIT, J.

license: Public Domain

text:
    THE STATE v. MICHAEL CONNORS, Appellant.
    Division Two,
    November 13, 1912.
    1. INSTRUCTION: Grand Larceny: Possession and Taking: Refusal of Correct. In order to convict, it is not error to refuse a correct instruction upon the necessity of finding from the evidence, the possession of the goods alleged to have been stolen, and the taking of such goods as charged in the information, asked by defendant, if the court, of its own motion, gave a correct instruction embracing the same subject.
    2. -: -: Alibi: Failure-No Ground of Motion for New Trial, if the attention of the court was not, in the motion for a new trial, called to its failure to give an alibi instruction in the motion for a new trial, the defendant is not in a position on appeal to avail himself of such failure.
    Appeal from St. Louis City Circuit Court. — Hon. Wilson A. Taylor, Judge.
    AeITRMED'.

      Gillespie & Douglas for appellant.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    (1) Error assigned, is that “the court erred in not instructing the jury properly in all the law bearing1 upon the -case as asked by defendant.” Defendant did not except to the action of the court in failing to declare all the law of the case, if in fact the court did not give all the law. (2) Under the proof, the demurrer to the evidence was -properly overruled. The State had proof upon everything required to constitute the offense and to fix the venue. Nor was there error in refusing the single instruction asked by the defendant. It was fully covered by the instructions given.
   KENNISIT, J.

— The prosecution in this case was instituted in the circuit court of the city of St. Louis by the filing of an information charging appellant Connors, Tom Meyers and George Meyers, jointly with burglary in the second degree and grand larceny. A severance having been granted, appellant was tried at the June term of said court, convicted of grand larceny and his punishment assessed at imprisonment in the penitentiary for two years. He was sentenced in accordance with the verdict and from such judgment of sentence he appealed to this court.

The charge in the information was the breaking and entering of a car belonging to the St. Louis Merchants Bridge Terminal Railway Company and stealing therefrom four cases of shoes and one roll of carpet, all of the value of one hundred and twenty dollars.

The State’s evidence tended to show the following facts:

On January 9, 1911, the shoes and carpet in question were placed in a car, along with other goods, to be transported to Colorado. The car was then on the tracks of the St. Louis Merchants Bridge Terminal Railway Company in the city of St. Louis. This company hauls the cars of the Chicago, Rock Island & Pacific Railway Company from the freight houses where they are loaded to the main tracks of the latter company. The carload of goods above mentioned was being shipped over the Rock Island road. Immediately after the goods were loaded, and at about 5:30 o’clock p. m., the door of the car was closed and sealed. About 7:30 p. m., after the car had' been moved some distance, but while it was in the city of St. Louis and under the control of the St. Louis Merchants Bridge Terminal Railway Company, one of the yard clerks of that company inspected the car and found that the seal had been taken from the door.

About 6:15 p. m., an employee of the John Deere Plow Company found a roll of carpet lying on the ground beside a box car that was standing near where the Rock Island car had been loaded. He carried the carpet into the offices of the plow company and one of the clerks of the company notified the police department of the finding of the (carpet. Two officers went to the offices of the plow company. They had the carpet placed by the side of the car where it had been found and waited to see if any person would appear to take possession of it. One of the officers went inside the car and the other stationed himself near by in a doorway of the building occupied by the plow company. The officer who was concealed in the car discovered that there were four boxes in the car. They were afterwards found to be the four boxes of shoes in question.

About seven p. m., another police officer, who was walking a beat in the vicinity of where the two officers had concealed themselves, saw the defendant and George Meyers driving along the street in a wagon. A few minutes later two men approached the car in which the officer was stationed and looked at the carpet. One of them remarked that everything looked all right and they walked away. Ten minutes later they returned, climbed into the car and dragged two of the boxes of shoes toward the door. The defendant discovered the presence of the officer and said to Tom Meyers, the other man who had entered the car with him, “Beat it. We are caught.” As the two were going out of the car the officer called on them to halt and then fired his revolver at them. Tom Meyers was wounded by the shot and fell to the ground near the door of the car, but the defendant escaped. George Meyers, who in the meantime had driven up near the car in a wagon, shot at the officers and then drove rapidly away, firing at them as he drove away. The officers fired several shots at him, but he escaped. The defendant was arrested at his home at a late hour that night.

The carpet and boxes of shoes were identified as part of the goods that had been loaded into the car that was sealed up for transportation to Colorado. The defendant was identified by the officer who was hidden in the car as one of the men wno attempted to take away the boxes of shoes. The officer in the doorway of the plow company building also identified the defendant as one of the men who went into the car. He had known the defendant by sight for several years and was standing in a dark doorway where he could not he seen, but there was an arc light near by so that he could plainly see the men as they entered the car.

The only evidence offered by the defendant was the testimony of his wife, his father-in-law and his sister-in-law. They all testified that on the date of the alleged offense the defendant was at his home, a long distance from the scene of the crime, from 5 :30 p. m. until he was arrested.

Appellant has not made an appearance in this court, and we must look to the record for the errors complained of at the trial.

I. It is alleged in the motion for a new trial that the court erred in admitting incompetent evidence over defendant’s objection, and also in excluding competent evidence offered by the defendant. The record shows that during the introduction of the testimony many objections were made and exceptions saved by the defendant to the adverse rulings of the court. It would unduly extend this opinion to review each of said rulings. It is sufficient to say that we have examined them and are satisfied that reversible error was not committed therein.

II. The defendant asked an instruction upon the necessity of finding from the evidence, in order to convict, the possession of the goods alleged to have been .stolen, and the taking of such goods as charged in the information. This instruction was refused, and the defendant' complains of such refusal in the motion for a new trial. The instruction was a correct statement of the law and could well enough have been given by the court, but it merely stated the converse of the law as set forth in instruction numbered 2, given by the court of its own motion, and as a correct instruction was given upon the subject embraced in the instruction refused, such refusal was not prejudicial error. [State v. Gow, 235 Mo. 307; State v. Sharp, 233 Mo. 269; State v. Nelson, 166 Mo. 191.]

III. The defendant interposed the defense of alibi and supported it by the testimony of several of his relatives. The court did not instruct the jury upon that defense and the question arises, was such failure to instruct reversible error? "We think not. The at-" tention of the court was not called to the failure to give an alibi instruction in the motion for a new trial, and therefore, under the recent decisions of this court, the defendant is not in a position to entitle him to a new trial upon such ground. [State v. Conway, 241 Mo. 271; State v. Dockery, 243 Mo. 592.]

IY. The court properly refused the instruction in the nature of a demurrer to the evidence. The testimony for the State as set forth in the statement of' facts herein leaves no doubt of the comission of the larceny as charged in the information. The question of the defendant’s identity as one of the three guilty parties was one for the jury, and as there was ample testimony to support the verdict, it will not be disturbed by this court.

V. An examination of the entire record has failed to disclose prejudicial error. The jury was fully warranted in returning a verdict of guilty, and the judgment should he affirmed. It is so ordered.

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


author: FERRISS, J.

text:
    THE STATE v. ELLIS BOSTWICK, Appellant.
    Division Two,
    November 13, 1912.
    1. INSTRUCTION: Not Made Ground for New Trial. Unless the appellant called the trial court’s attention to the instructions in his motion for a new trial, objections to them cannot be considered on appeal. The trial court must be given an opportunity to correct its alleged errors before the appellate court can be asked to consider them.
    2. -: Manslaughter: Words as Provocation. Where defendant was either guilty of murder or killed deceased in self-defense, no instruction for manslaughter in the fourth degree should be given. Insulting epithets alone are not sufficient to reduce murder to manslaughter.
    3. MURDER OF SECOND DEGREE: Evidence. Deceased had indulged freely in liquor, and was in a dangerous frame of mind, and defendant, with deceased’s son-in-law, went to the house where deceased was and which defendant had rented to the son-in-law, in order that the son-in-law might get his hat before going to seek an officer of the law, and said that if necessary he would put deceased out of the house and nail it up, and took with him for this ostensible purpose a claw hammer. Upon reaching the house, deceased was found sitting in a chair, and upon being reproached by defendant for his conduct, an exchange of violent language between them followed; and as defendant was standing at the door and apparently about to leave, deceased approached him and applied to him, a vile epithet, and defied any one to drive him out of the house, whereupon defendant struck him on the head with the hammer, inflicting a fatal wound. Held, that there was substantial evidence making a case of murder in the second degree, and whether or not defendant is guilty of murder in the second degree was a question for the jury to determine.
    4. -: --: Quarrels with a Witness. Testimony of quarrels and troubles, on the day preceding the homicide at night, between the deceased and a witness who was present when the homicide occurred, is not competent evidence.
    5. -: -: Objection Sustained After Answer: Not Withdrawn. Where the court, after testimony offered by appellant for the purpose of showing that he did not seek an encounter with deceased, but went to the house where the homicide occurred in compliance with the request of persons who had been driven therefrom by deceased, had been fully detailed, sustained an objection to it, hut it was not withdrawn, and this purpose of the testimony clearly appears from other evidence received, no injury to defendant was done by the ruling.
    Appeal from St. Francois Circuit Court. — Eón. Peter E. Euch, Judge.
    Affirmed.

      Marbury & Eensley for appellant.
    (1) The Supreme Court will not, ordinarily, weigh the evidence; yet, under the law and the evidence of this case, defendant is not guilty of murder in the second degree. (2) Evidence that materially tended to prove, especially on cross-examination, the threats and attitudes of deceased at the time of the killing should have been admitted. Any trouble had between deceased and his son-in-law, on the day of the killing, tended to prove all transactions of that day, and tended- to prove his reasons for attempting to kill his son-in-law and his daughter just prior to the killing and also tended to prove why appellant went to the house of Stegall. Any statement tending to show that appellant did not voluntarily enter into or bring on the trouble, but was earnestly requested by fleeing’ loved ones to save their lives, is materially competent. State v. Zorn, 20-2 Mo. 12; State v. Dettmer, 124 Mo. 426; State v. Hicks, 27 Mo. 588; State v. Feeley, 194 Mo. 300'. " '

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) The court committed no error in excluding from evidence the arrangements the deceased had with Stegall when they moved into the house occupied' by Stegall, for the reason that he was not' an accomplice in the offense. Trouble Stegall and deceased had on their way home from Doe Run was immaterial, as the defendant was not present, nor was Stegall aggressor. The same is true as to the cause of the separation between deceased and his wife. There is no error committed in the court rejecting the testimony as to what Landley told Stegall and his wife about going after Bostwick to quiet the deceased. There is no contention that Bostwick was the transgressor. (2) It is only when there is no substantial evidence to support the verdict that it will be set aside on the ground that the verdict is against the evidence. State v. Espenschied, 212 Mo. 215. (3) The motion for new trial does not complain of the instructions given.
   FERRISS, J.

— Defendant appeals from a conviction upon an information charging murder in the second degree. The jury found him guilty as charged, and fixed his punishment at ten years in the penitentiary.

The defendant operated a pool room and restaurant in the town of Taylortown, St. Francois county. As agent for the owner, he had rented a house near by to one Stegall, who lived therein with his wife and children, and with whom lived the deceased, who was Stegall’s father-in-law. During the day preceding the night of the homicide the deceased had indulged freely in liquor, and was in an ugly frame of mind. He quarreled with Stegall during the day, and on the evening in question frightened Stegall and his family out of the house. After leaving the house, Stegall and his wife and baby went to defendant’s place of business, stating to defendant that James Meeker, the deceased, was in a dangerous frame of mind, and was theatehing to kill him, Stegall; also that Meeker had a knife which he was prepared to use. Having attempted to get hold of an officer, and failing, Stegall requested the defendant to go with him to his home in order that he might get his hat before going to seek an officer of the law. Bostwiclc, the defendant, consented to go with him, saying that if necessary he would put Meeker out of the house and nail it up, and took with him for this ostensible purpose a claw hammer. Up to this point the evidence is not in dispute.

The testimony for the State shows that, upon reaching the home of Stegall, the deceased was found sitting in a chair. The defendant reproached him for his conduct, and there was some exchange of violent language between deceased and the defendant. As defendant was standing at the door, and apparently about to leave, deceased approached him and applied to him a vile epithet, and further defied any one to drive him out of the house, whereupon defendant struck him on the head with the hammer, inflicting a fatal wound.

The defendant’s evidence tended to show that the deceased was attempting to cut defendant with a knife when the fatal blow was struck.

The court instructed on murder in the second degree, manslaughter in the fourth degree, and self-defense. Objections are made here to some of the instructions given and the rulings on evidence.

I. The objections to the instructions cannot he considered here, because the defendant did not call the trial court’s attention to them in his motion for a new trial. That motion makes no reference whatever to instructions. We cannot depart from the rule well established in this State that matters will not be considered in this court which are not called to the attention of the court below in the motion for new trial. It is a rule firmly implanted in our jurisprudence that the trial court must be given an opportunity to correct its alleged errors before this court can be asked to consider them. It may be remarked, however, in passing, that the instruction for manslaughter in the fourth degree was a gratuity to the defendant on the part of trial court, as it is obvious that the case is either one of murder or self-defense, and there is no manslaughter in it. The court proceeded upon the theory that insulting epithets alone are sufficient to reduce murder to manslaughter. This is not the law, as is clearly shown in the opinion by Kennish, J., in State v. Barrett, 240 Mo. 161.

II. It is urged that, under the evidence, the defendant is not guilty of murder in the second degree. Whether or not he is guilty was a question for the jury. The question for us to determine is, whether or not there was substantial testimony introduced by the State making up a case of murder in the second degree. Clearly the evidence was sufficient. According to the evidence for the State, the deceased made no physical assault upon the defendant, threatened none, and did no more than to apply opprobrious and insulting epithets to him. The killing, under the circumstances as detailed by the State, was, without doubt, murder.

III. The defendant complains of the following ruling of the court. A witness for the State testified as to the vile language used by the deceased, and that there was more or less excitement about the premises, when he was asked this question:

“Q. In fact, you expected the old man to carry out the threat he made to Stegall? A. Yes, sir.”

An objection to this was sustained. Obviously this ruling was correct.

Referring to what took place between himself and the deceased as they were returning from Doe Run on the day preceding the night of the homicide, Stegall, while on the stand, was asked this question:

“Q. What trouble or controversies or quarrels, if any, did you have on your way from Doe Run to Flat River ? ’ ’

Objection to this question was sustained. We cannot perceive any ground upon which the trouble between the deceased and the witness, Stegall, that day, was competent as evidence, and we think the objection was properly sustained. It was clearly shown that Meeker was under the influence of liquor1 and in an ugly frame of mind that day.

Again, where a witness for the State testified that at the time the family of Stegall left the house, in fear of the deceased, he heard some women screaming, namely, Meeker’s wife and daughter, he was asked the question: “What were they saying?” This question was fully answered as follows: “I cannot tell you what they was saying hardly, only that they was hollowing and begging Langley to go down there, that he was going to kill the baby, or something like that, and he said, ‘I can’t go, I haven’t got my pants on; go down and get Bostwick.’ ”

After this answer was given, the prosecuting attorney objected,' and after considerable colloquy between counsel on both sides and the court, the objection was sustained, but the testimony given in answer to the question was not withdrawn from the jury. We cannot perceive any injury to the defendant in this ruling. The question had been answered, and the answer not withdrawn. Furthermore, as to just what the women were saying was not material. The evidence was offered for the purpose of showing that Bostwick did not seek an encounter with Meeker, but went to the house in compliance with the request of parties who had been driven therefrom. All this clearly enough appeared from the evidence received. ' Nor is it claimed by the State that Bostwick went to the house with a felonious purpose. It may be conceded that Bostwick accompanied Stegall to the house for the sole purpose of putting a stop to the disturbance and without any unlawful intent. After reaching there, however, it appears that his anger was aroused by the language used by the deceased to a point beyond bis control.

. Finding no .reversible error in the record, the judgment is affirmed.

Broivn, P. J., and Kennish, J., concur.


author: BLAIR, C. PER CURIAM.

text:
    THE STATE v. WALTER KELLY, Appellant.
    Divisiori Two,
    November 13, 1912.
    1. CARNAL KNOWLEDGE: Previous Chaste Character: Presumption: Instruction. It- was error, in a prosecution for carnally knowing an unmarried female of previously chaste character, to instruct the jury “that the law presumes that every woman is of chaste character until the contrary appears.” The Supreme Court has'heretofore clearly indicated its view that the previous chastity of the prosecutrix is an element of the offense, under our statute, which must be both charged and proved.
    2. -: Pregnancy of Prosecutrix: Evidence. Evidence of the pregnancy of the prosecutrix is properly admitted in a prosecution for carnal knowledge.
    Appeal from St. Louis City Circuit Court. — Hoja Eugene McQuillin, Judge.
    Reversed and remanded.

      Farris S Watson for appellant,
    (1) The prosecuting 'witness over the objection of defendant, was permitted to testify that at1 that time she' was pregnant. When she in her testimony admitted that she had intercourse with persons other than the defendant, and having had equal opportunity with other men to bring about such condition, she should not have been permitted to so testify. (2) Instruction 7, given by the court, which is the reasonable doubt instruction, and which is in well approved form, and the law, is in direct conflict with instructions 4 and 11, for in 4 and 11 the court removes the presumption of innocence and the burden of proof from the State, and puts the presumption of guilt upon the defendant, as well as the burden of proof. In other words, the jury are told in one breath that the defendant is presumed to be innocent, and that the State is required to prove his guilt, and in the next breath destroys this presumption of innocence, and puts the burden of proof of defendant’s innocence upon defendant. Instruction 11 is no doubt a correct principle of law, under the same rule that a man is presumed to be honest until the contrary is shown; so if unchastity were charged against a female, under the general law of presumption she would be presumed to be virtuous until the contrary were shown; but where you charge a defendant with having carnal knowledge of a chaste female, the presumption of innocence of the accused being the greater and more necessary for the protection of the right of the citizen, the chastity of the female is not sustained by the general presumption of virtue, but is an issue of fact, which requires substantive proof; and it is a grievous error to instruct the jury, as was done in this instruction, “that the law presumes that every woman is of chaste character until the contrary appears,” when it had previously told the jury that they must believe and find from the evidence that the female at the time of the alleged offense was a woman of previous chaste character, and that the State must prove the same to their satisfaction, and beyond a reasonable doubt. State v. Rosewell, 153 Mo. App. 341; State v. Jacobs, 133 Mo. App. 185; State v. Buck, 120 Mo. 4891. But instruction 11 in this case cannot be supported by this rule. State v. Shelly, 166 Mo. 616; State v. James, 133 Mo. App. 304; State v. Meysenburg, 171 Mo. 58. (3) In the prosecution of this offense the previous citaste character of the prosecutrix is a matter of proof, and not presumption and must be proven the same as other material allegations. State v. DeWitt, 186 Mo. 64. And in cases of seduction the State must not only charge but prove that the prosecutrix was a woman of good repute. State v. McCaskey, 104 Mo. 647; State v. Fogg, 206 Mo. 731; State v. Darling, 202 Mo. 165; State v. Hickam, 95 Mo. 329'.

      Elliott W. Major, Attorney-General, ánd Charles G. Iievelle, Assistant Attorney-General, for the State.
    (1) The testimony of prosecutrix that she was pregnant at the time of the trial and that her condition was caused by the act of appellant, was competent. State v. Palmberg, 1991 Mo. 253. If the court’s ruling that this testimony was competent was error, because prosecutrix had testified that she had had intercourse with a person other than appellant, it was error in appellant’s favor because it tended to show that prosecutrix was unchaste. (2) It is contended that instruction 11 is wrong, because conflicting with the presumption of innocence instruction and Tjdth the reasonable doubt instruction. This, we believe, presents a question of some merit. Instruction 6 is not the law. The defendant has no right to single out each material fact and have the court direct the jury that if they have a reasonable doubt as to such fact, they should acquit. A doubt as to a single fact in the case is not enough. The doubt must be upon the whole case; State v. Yells, 11.1 Mo. 533; State v. Whalen, 98 Mo. 222. But the giving of this instruction was error in appellant’s favor. Instruction 11, that every woman is presumed to be chaste until the contrary appears, is undoubtedly a correct statement of the law. The question here is whethér it was error to give such instruction in this case. It is contended that from the giving of these instiuetions, a conflict of presumptions arose. But, an analysis of the law of presumptions will show that there can be no conflict of presumptions. Where presumptions are said to be in conflict, it will be found that one of them, at least, is without basis, of fact, and is spoken of as a presumption only upon the assumption that because a presumption. of law sustains the burden of proof, a ruling as to the burden of proof states a true presumption of law. In the case at bar there was a pseudo-pr'esumption Of law that appellant was. innocent, and that remained throughout the trial, and there was also a true presumption of law that prosecutrix was chaste. They were not in conflict, because the pseudoprésumption of innocence was separate and apart from the legitimate inference of guilt that arose through the entertaining of the presumption of chastity. While the presumption of chastity may infer appellant’s guilt, it does not interfere with the burden of proof, the pseudo-presumption of innocence. Therefore, we submit that there was no conflict between the instruction on presumption of innocence and the instruction on presumption of chastity. Though the instruction on presumption of chastity was unquestionably a correct statement of abstract law, it is probably the true rule that the essential element of chastity cannot be proved, or looked upon as proved, by a presumption. of law alone. There was evidence' that prosecutrix had lived with her parents until a short time before the time of the offense charged did not associate with men nor receive their attentions, and never had sexual intercourse with any man before the offense charged. Such evidence has been held sufficient' to' prove previous chaste character.. State, v. Kelly, 191 Mo. 691. ' '
   BLAIR, C.

— Under an information charging him with carnally knowing an unmarried female of previously chaste character,' between the ages of fourteén and eighteen years, Walter Kelly was convicted in' the circuit court of the city of St. Louis, sentenced to six months in the workhouse, and has appealed. , .

I. As the record stood at the close of the evidence, the only, actually contested issue of the fact was the previous chastity of the ■ prosecutrix. ■ The trial court instructed, among other things, as to reasonable doubt and the presumption of innocence, and also, over appellant’s objection and exception, gave the following:

“The court further instructs you that the law presumes that every woman is of chaste character until the contrary appears.”

The learned Attorney-General frankly concedes the seriousness of the question presented by the' giving of this instruction. On the question whether the presumption of chastity obtains in a case of this Lind ¿nd relieves the State of the necessity of bringing forward, in the first instance, evidence of the previously chaste character of the prosecutrix, the decisions in other jurisdictions are not in accord. This court has heretofore clearly indicated (State v. McMahon, 234 Mo. 611; State v. McCaskey, 104 Mo. l. c. 647; State v. Hill, 91 Mo. l. c. 427) its view that the previous chastity of the prosecutrix is an element of the offense, under our statute, which must he both charged and proved. Those text-writers and encyclopaedists who have expressed an opinion agree this is the sounder and more logical rule (Bishop on Statutory Grimes, Sec, 648; 1 Bishop’s New Crim. Pr,oc./ Sec. 1106; 4 Wigmore on Evidence, Sec. 2528; 25 Am. & Eng. Ency. Law, .p. 240) and an examination of the cases tends only to confirm the accuracy of this' conclusion! It is undoubtedly true that the practical universality of chastity among women justly gives rise, in most circumstánces, to a presumption of chastity on the part of an individual member of the sex; .but 'in criminal prosecutions the presumption of chastity logically yields to the presumption of defendant’s innocence when the two directly conflict, as in this case. It is suggested there can be no such thing as conflicting presumptions and, hence, the conclusion that the presumption of chastity disappears because of its conflict with the presumption of innocence is unsound. Whether this theory is logical when applied to presumptions arising from facts proved by the evidence in a given case it is unnecessary to inquire, since the presumption of chastity does not arise on this record in that fashion. Whether the presumption of innocence be called merely the reason for the rule requiring proof of guilt beyond- a reasonable doubt, or be held to be, of itself, substantive evidence in defendant’s favor, it cannot long survive if general inferences and presumptions not arising out of the facts proved by the evidence in the case are permitted to overthrow it. Whatever may be theoretically true as to the possibility of a conflict of presumptions, the jury’s perplexity when confronted in this case with instructions embodying both the presumption of innocence and that of chastity and their unavailing effort to secure an explanation as to which presumption took precedence, evidences the possibility of a practical conflict productive of confusion and injustice. The instruction complained of should not have been given.

II. There was no error in admitting evidence of the pregnancy of prosecutrix (State v. Palmberg, 199 Mo. l. c. 258) since, as has often been pointed out, pregnancy is evidence of intercourse and intercourse is one of the constitutive elements of the offense charged.

So far as concerns the cross-examination of defendant as to his age it will suffice to say that, if erroneous, the error can easily be obviated on another trial; and the further objections to the instructions may be avoided by observance of the rule laid down in the preceding paragraph. The evidence tending to show prosecutrix to he unmarried is not as clear as might be desired and, it may he added, it is to he hoped care will he taken to eliminate all question (State v. DeWitt, 186 Mo. l. c. 68) as to the sufficiency of the verdict in case another trial is had and conviction secured.

The judgment is reversed and the cause remanded.

Roy, G., concurs.

PER CURIAM.

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

All the judges concur.


author: BROWN, P. J.

text:
    THE STATE v. FRANK NEWMAN, Appellant.
    Division Two,
    November 13, 1912.
    1. ROBBERY: Independent Crime: Presence in Vicinity Within Twenty-four Hours: Corroboration: Identification, etc. The State’s evidence tended to prove that in the afternoon defendant and 'another gained admission to the residence of Newman, by pretending to be employees of a telephone company, desiring to inspect the house telephone; and while there they placed Mrs. Newman in fear by threatening her with revolvers, thereby compelling her to give up valuable jewelry, and for this defendant was convicted of robbery. Meld; that testimony of Newman that defendant visited his residence the night before the robbery, in the pretended search for some one, was not an attempt to prove an independent crime, but competent to prove that defendant was within the city less than twenty-four hours before the robbery; and also to corroborate the nurse who testified to seeing defendant on both his visits to the house, and from seeing him on both occasions she identified him as one of the men who committed the robbery.
    2. -: Request to See Coindictee: Oral Instruction. Upon the request of a juror, at the close of the evidence, to see the man jointly indicted with defendant, and to be informed whether the prosecuting witness recovered the jewelry taten from her, oral information from the court that the request could not be granted without violating the rights of defendant, was not error —especially where the court gave an additional instruction informing the jury that neither the State nor the defendant was required to produce the coindictee as a witness, and that no inference unfavorable to either should be drawn from the fact that said coindictee did not appear as a witness.
    3. ALIBI: Question for Jury. The evidence that defendant was at a place other than the scene of the robbery at the time the offense was committed presents an issue purely for the jury.
    Appeal from St. Louis City Circuit Court. — Hon. J. Hugo Grimm and Hon. Leo 8. Rassieur, Judges.
    Affirmed.

      Grant Gillespie for appellant.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    (1) The court properly permitted Patrick H. Newman, husband of the prosecuting'witness, to testify that defendant and his coindictee were in his (Newman’s) home three days before the robbery occurred. This evidence was admissible for the purpose of identifying defendant and connecting him with the crime charged. State v. Finn, 199 Mo. 603; State v. Walker, 194 Mo. 262; State v. Bailey, 190 Mo. 284; State v. McGee, 188 Mo. 410’. (2) The evidence as to the defense of alibi is conflicting. The trial court, by proper instruction, submitted that defense to the jury, the jury — the triers of the facts — have found that issue against the defendant, and this court will not interfere with the finding of the jury on that question of fact. State v..H'ert, 89 Mo. 580; State v. Woodward, 171 Mo. 593; State v. Barton, 214 Mo. 316; State v. Shelton, 223 Mo. 118; State v., Eisler, 22.0- Mo. -67-; State v. Brooks, 220 Mo. 85; State v. Adair, 160 Mo. 391. (3) The court did not err in instructing the jury (after one of the jurors had, with the consent of counsel for the State and for the defendant, ashed certain'questions of the court), that there was no obligation on the part of either the State or the defendant to produce the codefendant in court for the inspection of the jury, and that the jury had no right to draw any. inference unfavorable either to the State or to defendant from the fact that the codefendant did not appear before the jury. State v. DeWitt, 186 Mo. 65. Nor did the court err in instructing the jury that “it is not material to the question of defendant’s guilt or innocence whether the property stolen (if any was stolen) was returned to the owner or not.” The jury, through one of their number, had asked about this matter, and the court by this instruction declared an elementary principle of criminal law. State v. Daly, 210 Mo. 681.
   BROWN, P. J.

— Convicted in the circuit court of St. Louis City of the crime of robbery in the first degree, defendant appeals from a judgment of that court fixing his punishment at ten years in the penitentiary. Defendant was jointly indicted with one Charles Felchlin, but obtained a severance and was separately tried.

On the part of the State, the evidence tends to prove that on May 27, 1910, between the hours of two and three p. m., defendant and one Charles Felehlin gained admission to the residence of Patrick Newman in the city of S.t. Louis, by pretending to be employees of a telephone company desiring to inspect Mr. Newman’s telephone. Upon entering the house, the defendant and his confederate, Felehlin, placed Mr. Newman’s wife in fear by threatening her with revolvers, thereby compelling her’to give up jéwelry of the value of several hundred dollars, which defendant took away with him.

Defendant was identified by Mrs. Newman and her nurse as one of the parties who committed the robbery; also by Mr. Newman, who testified that.defendant visited Ms home the night before the robbery, in a pretended search for another party. No crime was committed or attempted during defendant’s first visit to Newman’s home.

The defense was an alibi, to support which two witnesses testified that defendant was at a doctor’s office in another part of the city at the hour the robbery was committed.

After the close of the evidence, one of the jurors requested to see Felchlin, the man jointly indicted, with defendant, and to be informed whether the prosecuting witness recovered the jewelry wMch was taken from her; whereupon the court informed him orally that the request could not be granted without violating the rights of defendant. The court also gave the jury an additional instruction informing them that neither the State nor the defendant was required to produce the codefendant as a witness, and that no inference unfavorable to either the State or defendant should be drawn from the fact that the codefendant did not appear as a witness. The court also instructed the jury that it was not material to the question of defendant’s guilt or innocence whether the property stolen (if stolen) was returned to the owner or not.

Appellant has not favored us with a brief; and the only alleged errors of the trial court recited in the motion for a new trial which are worthy of mention in this opinion, are, (1) the admission of evidence that defendant visited the Newman home the night before the robbery; and (2) the instruction given the jury after one of their number had asked the court for additional information.

I. We see no error in permitting the witness Patrick Newman to testify that defendant came into his home the night before the robbery. It was not an attempt to prove an independent crime, but was a legitimate effort to prove that defendant was in St. Lonis less than twenty-four hours before the robbery, which, though very slight evidence of his guilt, was some evidence of that fact. [2 Wharton’s Criminal Evidence, (10 Ed.), Sec. 939.] ’

. It also tended to corroborate the colored nurse who testified to seeing defendant on both his visits .to the Newman home, and from seeing him on both these occasions she identified him as one of the parties who committed the robbery. [State v. McGee, 188 Mo. 401, l. c. 410.]

II. There was no error in the court’s action in orally informing the jury that the additional information they desired could not be given them after the case was closed, without encroaching upon the rights of defendant. Particularly is this true, as the court gave to the jury additional instructions correctly informing them that the failure to place before the jury the additional evidence they desired should not raise any presmnption of defendant’s guilt.

The evidence that defendant was at a place other than the Newman home at the time of the robbery was purely an issue for the jury, and we will not disturb their finding thereon.

Finding no error in the record, the judgment is affirmed.

Ferriss and Kennish, JJconcur.


author: KENNISH, J.

text:
    THE STATE v. OTTO BROTZER, Appellant.
    Division Two,
    November 13, 1912.
    1. IDENTICAL STATUTES: Prosecution Under Later. An earlier statute is repealed by a later one covering the same subject, and tbe carrying of it forward in subsequent revisions and its amendment after being so carried forward do not give it validity; and a prosecution based on it cannot stand.

      2. -: -: Malicious Trespass: Telephone Wires: Secs. 3336 and 4597, R. S. 1909. But Sec. 3336, R. S. 1909, enacted in 1865, does cover exactly the same subject embraced in Sec. 4597, R. S. 1909, first found in R. S. 1855, and amended in 1901. Both make it a criminal offense to “injure, molest or destroy” telephone wires, but under Sec. 4597, the act denounced must be “willfully and maliciously” done and if so done is a felony, punishable by a penitentiary sentence, while under Sec. 3336 the trespasser may be punished if the injury is “unlawfully and intentionally” done, and the offense is a misdemeanor. They are not identical, and the later statute (Sec. 3336) did not by necessary implication repeal the earlier one (Sec. 4'597) under which defendant was tried and convicted.
    3. -: -: -: -: -: Made Identical by Cognate Statute. Nor was said Sec. 4597, declaring that the trespass denounced must have been “willfully and maliciously” done, made identical with Sec. 3336 by Sec. 4629, found in the same article as is Sec. 4597, and authorizing an inference of malice in a prosecution for “malicious trespass or injury to property specified in this article” from proof that the act was “wrongfully, intentionally and willfully done.” This section 4629 does not dispense with malice as an element of the offense denounced by section 4597, but simply authorizes an inference of malice from proof of certain other facts, thereby relieving the State from proof of malice in making a prima facie case.
    4. MALICIOUS TRESPASS: Evidence: Threats. In a prosecution for malicious, injury to a telephone wire connecting farm houses, testimony that defendant, when told that if he .did not yield to an increased rate his telephone would be removed, threatened that if the company cut off his service he would “show them a good time getting by his phone,” was competent, both upon the issue of malice and as tending to prove the commission of the offense.
    5. -: Nolle Prosequi as to Two Counts: Conviction Under Third of Offense Committed on Same Day Mentioned in One of Them. Where the three counts charge the one offense as having been committed on different days, and they differ in no wise except in so charging, a dismissal as to two of them entitles defendant to an acquittal if the offense was committed on either of the days specified therein. So that where the three counts in the information charged defendant’ with malicious • injury to a telephone wire on February 3, -8 and 10, respectively, and the prosecuting attorney entered a nolle prosequi as to the second and third, the court should have given, an ■ instruction telling the jury that they could not convict if the evidence showed the offense was committed on February 8, and it was error to instruct that they might convict if the evidence showed the offense was committed at any time within three years next before the filing of the information. The dismissal of the two counts amounted to an acquittal of the offenses charged therein, and in no way would such acquittal, and in no way would the law of former jeopardy, be available to defendant, if he could be convicted of the offense committed on either of the days specified therein.
    6. -: Instruction: In the Disjunctive. Where the information charged that the defendant “injured, molested and destroyed” certain telephone wires, an instruction authorizing a conviction if defendant did “injure, molest or- destroy” said wires, is error. Although the statute mates it an offense either to “injure, molest or destroy” such wires, the instructions authorizing a verdict of guilty should not be in the disjunctive, but should require a finding of one particular act constituting the offense, or if more than one of the acts are set forth in the instructions they should be stated conjunctively.
    Appeal from Livingston Circuit Court. — Hon. Arch B. Davis, Judge.
    Reversed and remanded.

      S. L. Sheets and Paul D. Kitt for appellant.
    (1) The court erred in overruling defendant’s motion to quash the information and demurrer thereto. The information was based on Sec. 1957, R. S. 1899, Sec. 4597, R. S. 1909, making the offense a felony. This section was repealed by implication by the original enactment, which is Sec. 1261, R. S. 1899', now Sec. 3336, R. S. 1909, prior to the time that the alleged offenses were charged to have been committed, the latter section having been passed last by the Legislature and making the offense a misdemeanor. St. Louis v. Alexander, 23 Mo. 509; Cape G-irardeau v. Riley, 52 Mo. 428; State ex rel. v, Heidorn, 74 Mo. 411; Pool V. Brown, 98 Mo. 680; Dart v. Bagley, 110 Mo. 52; Paddock v. Railroad, 155 Mo. 535; Kern v.- Legion of Honor, 167 Mo. 483; Yall v. G-illham, 187 Mo. 405; Brannock v. Railroad, 200 Mo. 568 ; Strottman v. Railroad, 211 Mo. 257; Gazollo v. McCann, 63 Mo. App. 419; State ex rel. v. Woodson, 128 Mo. 512; State ex rel. v. Shields, 230 Mo. 91; Miller v. County, 204 Mo. 198; Tinson v. Coal & Coke Co.,' 220 Mo. 592; State v. Taylor, 186 Mo. 608; State ex rel. v. Wardell, 153 Mo. 325; Bird v. Sellers, 122 Mo. 31. (2) Instruction 5 on behalf of the State allowed the jury to find the defendant guilty of the offense charged to have been committed on the 8th day of February, 1910. This was error. The court should have excepted in this instruction the offense alleged to have been committed on February 8, 1910. The second count of the information charged the commission of this offense on February 8, 1910; when the State entered into the nolle prosequi after the defendant had been put in jeopardy by the empaneling of the jury and the opening statement of the prosecuting attorney, defendant was thereby acquitted of the offense on February 8, 1910. And so the court should have directed the jury. Kelley Crim. Law & Practice, Secs. 220-230; State v. Patterson, 116 Mo. 505; State v. Snyder, 98 Mo. 561; 1 Bishop’s New Crim. Law, Secs. 1013, 1014 (4 and 5), 1015 and 1016. (a) This instruction is also erroneous in that in the last paragraph it defines what the terms injure, molest and destroy mean, when there is no such definition given by the statute. And defendant contends that,the instruction should have been confined to the wording of the statute itself. The property should have sustained some damage which is appreciable before an offense is committed. Inconvenience will not suffice to constitute this offense. Sec. 4597, R. S. 1909; Pollet v. State, 115 Ga. 234; Patterson v. State, 41 Tex. Cr. 412. “Molest” means some actual damage done to property. Gilbert v. Wiman, 1 N. Y. 550, 49.Am. Dec. 359. (b) This instruction is further erroneous in that it did not require the jury to find the defendant, in wrapping and twisting the wire in question over another wire, did so willfully and maliciously as the statute requires it should he done. State v. McClain, 92 Mo. App. 463. (3) It was error for the court to refuse instructions 1, 2, 3, and 9 asked by the defendant. In every offense of this nature, malice is essential before the defendant can be found guilty. State y. Prather, 130 Mo. App. 348. (4) Defendant’s instruction 4 should have been given because the evidence relied upon by the State for conviction covered only the offense alleged to have been committed on February 8,1910, while at the same time the record shows he had been acquitted of that same offense upon the nolle by the State of the second count of the information. The evidence in this case shows only one offense to have been committed, if at all, by the defendant; shows only one act and that was the act or offense of February 8. State v. Railroad, 219 Mo. 156; State v. Lee, 228 Mo. 494; State v. Palmberg, 199 Mo. 233; State v. Wilson, 39 Mo. App. 184.

      Elliott M. Major, Attorney-General, and Charles G. Revelle, Assistant Attorney-General, for the State.
    (1) The repeal of statutes by implication is not favored by the courts. State v. Bishop, 41 Mo. 16; Road District v. Huber, 212 Mo. 551. “The presumption is always against the intention to repeal where express terms are not used.” 36 Cye. 1071. “To justify the presumption of an intention to repeal one statute by another, either the two statutes must be irreconcilable, or the intent to effect a repeal must be otherwise clearly expressed.” 36 Oyc. 1071. At the time appellant contends that the “corporation section” repealed the “criminal section,” there was no repugnancy or conflict between these two sections. Then, they were practically identical. Both provided that persons who tampered with the property of telegraph companies were criminally liable. The “criminal section” used the terms “willfully and maliciously,” and the “corporation section” read “unlawfully and intentionally.” There is no substantial difference in these terms. State v. McKee, 126 Mo. App. 530. Both sections provided for punishment by fine and by imprisonment in the penitentiary. There was certainly no such irreconcilable repugnancy as is deemed necessary before a statute may be repealed .by implication. (2) The “corporation section” was repealed in effect by the act of the Legislature, in Laws 1901, p. 129, and the “criminal section” by that act amended. The Court of Appeals has held that one of these statutes was repealed by the other, as they were at that time essentially incongruous, and the repealing statute is that which last received the attention of the Legislature. Therefore, that the “corporation section” was repealed by the “criminal section” which was last amended by the Legislature in 1901. State v. McKee, 126 Mo. App. 531. Other rules of statutory construction could be invoked to show that the “criminal section” was the repealing section and that it was the apparent intention of the Legislature that the “criminal section” should stand and the “corporation section” be .repealed. It has been held that an amended act is ordinarily to be construed as if the original statute had been repealed, and a new and independent act in the amended form had been adopted in its stead. Kamerick v. Castle, 21 Mo. App. 587; Epperson v. Insurance Co., 90 Mo. App. 432. (3) This is a case in which the averment in the information of the precise time of the commission of the offense is not material. The information charged in three counts the commission of three offenses. Two counts were dismissed by nolle prosequi. One offense still remained, and in this case, which is not one where.time is of the essence of the offense, the proof could have shown that the offense occurred at any time within three years before the date of the filing of the information and a conviction must stand, under the Statute of Jeofails. ' Suppose the proof does show that the offense charged in the count on which the ease was tried occurred on February 8, still that does not necessarily lead to the conclusion that the offense proved was the same act as the alleged offense set up in the count which was dismissed. One or two or half a dozen offenses may have occurred on the same day. Time was not of the essence of the offense charged and counsel cannot make time alone show the identity of this offense. Appellant was charged to have comitted an offense “on or about the third day of February, 1910,” and the overwhelming proof submitted by the State shows that he committed the offense as charged on one of the early days of February, 1910. The Statute of Jeofails, Sec. 5115, R. S. 1909, cures all variance between the time charged by the information and that shown by the proof.
   KENNISH, J.

— At the April term, 1911, of the circuit court of Livingston county, appellant was tried upon an information based upon Sec. 4597, R. S. 1909, charging him with the felony of willfully and maliciously injuring, molesting and destroying the lines and wires of 'the Bedford-Wheeling Telephone Company. He was found guilty, his punishment assessed at a fine of one hundred dollars, and from the judgment entered on the verdict, he has appealed to this court.

The information was in three counts, which were substantially identical, except as to the dates on which the offenses were alleged to have been committed. The first count charged the commission of the offense on February 3, 1910, the second on February 8, 1910, and the third on February 10, 1910'.

After the jury had been impaneled and sworn to try the cause, the defendant moved that the State be required to elect as to the count upon which the trial should proceed. This motion was sustained by the court, and the prosecuting attorney elected to stand upon the first count, being the count which charged the offense to have been committed on February 3, 1910, and entered a nolle prosequi as to each of the remaining counts.

The testimony for the State tended to prove the following facts:

At the date of the alleged offense, and for some time prior thereto, the Bedford-Wheeling Telephone Company, an unincorporated association, owned the telephone lines and exchanges in the towns of Bed-ford and Wheeling, in Livingston county, and also a telephone line between the two towns. On the telephone poles of the company between the towns were two wires. One of them was used by the company for the transmission of messages between the towns, and the other belonged to and was used by the defendant and other joint owners of the Bedford-Wheeling Telephone Company ás a private party wire. In the latter part of December, 1909, the owners of the BedfordWheeling Telephone Company held a meeting at which it was determined to extend their lines and to make an assessment upon each of the joint owners to meet the expense of the extension. .The defendant was opposed to the extension and refused to pay his assessment. One of the managers of the company informed defendant that unless he paid his assessment his party-line service would be discontinued on the company’s switchboards. Defendant replied that if they cut off his service he would “show them a good time getting by his ’phone.” The defendant’s party-line service was discontinued. After that the company’s line between Bedford and Wheeling frequently got out of order, especially after the defendant had passed over the road along which the two wires were strung. Several times when investigations were made to ascertain what was wrong with the wires, it was found that the two wires had been entangled by one of them being twisted about the other. In the early part of February, 1901, the telephone company employed Ike Jamison, the constable of the township, to watch its line and endeavor to ascertain who was interfering with the wires. Jamison was a witness at the trial and testified that-on or about February 8, 1910, he saw the defendant and the defendant’s wife and son-in-law on the public road along which the wires ran; that defendant was on horseback, but that his wife and son-in-law were each driving a wagon loaded with household goods; that he saw the defendant ride out to the side of the road, reach up to the telephone wires and twist one of them about the other. Two section hands who were working nearby were called by Jamison to witness the condition of the wires. They corroborated him as to the fact that one of the wires was twisted about the other but they gave no testimony as to who had committed the act.

The evidence for the defendant tended to show the following facts:

The date on which the defendant, his wife, and his son-in-law passed along the road, as testified to by Jamison, was February'8, 1910. The defendant was on horseback, driving some loose horses, and was following the wagons in which his wife and son-in-law were hauling the household goods. At the point where Jamison testified to having seen defendant molest the wires, the lower wire was so near the ground that defendant could not ride under it. When defendant passed that point he was riding at a rapid gait in order to prevent the loose horses from turning into a byroad and in passing under the wires he took hold of the lower one and threw it up over his head, simply for the purpose of getting it out of his way. The defendant was corroborated by a number of witnesses as to the fact that the wire was so near the ground at the point in question that a person on horseback or in a buggy could not pass beneath the wire without raising it up.

The defendant asked an instruction telling the jury that since the State had entered a nolle prosequi as to the offense alleged to have been committed on February 8, 1910, he could not be convicted of that offense. The court refused the instruction and by another, which it gave, authorized the jury to convict if they found and believed from the evidence that the offense was committed by the defendant at any time within three years prior to the filing of the information.

I. Appellant maintains that the judgment should be reversed for the reason that Sec. 4597, R. S. 1909, under which he was prosecuted and convicted, was repealed by a later statute, now Sec. 3336, R. S. 1909. This question was raised below by demurrer and by motion to quash, both of which were overruled; also by an instruction which the court refused. Each of such rulings was properly preserved for review. The contention is not that the later act expressly repealed the earlier act, but that the later covered the whole subject of the earlier and was intended as a substitute therefor, and therefore that it operated as a repeal by implication. A proper consideration of this question necessitates a brief review of the legislative history of the two statutes, each of which makes it a criminal offense to injure, molest or destroy telegraph or telephone property.

The first legislation upon the subject is found in the Session Laws 1850-51’ p. 287, Sec. 7. That section, as originally enacted, was as follows:

“Any person who shall intentionally and unlawfully injure, molest, or destroy any of the lines, wires, posts, piers or abutments, or any of the materials or property of such company, owner or association, shall on conviction thereof, be deemed guilty of a'misdemeanor, and be punished by fine not exceeding five hundred dollars, or imprisdnment not exceeding two years, or both, at the discretion of the court having cognizance thereof.”

Without an express repeal of the Act of 1851, the following section was enacted by the Legislature in 1865 (Session Laws 1865-66, p. 47, Sec. 15), namely:

“Any person who shall unlawfully and intentionally injure, molest, or destroy any of the lines, posts, piers, abutments, or other material or property pertaining to any line of magnetic telegraph, erected in this State, shall be deemed guilty of a misdemeanor, and shall, upon indictment in the court having criminal jurisdiction in the proper county, be punished by fine not exceeding five hundred dollars, or by imprisonment in the penitentiary, not exceeding one year, or by both such fine and imprisonment, at the discretion of the court having cognizance thereof.”

In 1879 (R. S. 1879, Sec. 889) the section was amended by including telephone property within its provisions, and since 1879 the section has been carried forward without change in each revision of the Revised Statutes, and is now Sec. 3336, R. S. 1909.

The section under which defendant was convicted first appeared as Sec. 63, page 585, R. S. 1855, and was as follows:

“Every person who shall willfully and maliciously injure, molest, or destroy, any of the lines, wires, posts, piers or abutments, of any telegraph company, owner or association, or any other materials or property of such company, owner or association, used in or about the transmission of dispatches or other communications, shall, upon conviction, be punished by imprisonment in the penitentiary for the term of two years, or by fine, not exceeding five hundred dollars.”

This act did not expressly repeal the Act of 1851. It likewise has been carried forward in each .revision of the statute's and is now Sec. 4507, R. S. 1900. The only change made in this section since its adoption was in 1901 (Session Laws 1901, p. 129), when it was also amended so as to include the property of telephone companies.

The two foregoing enactments have appeared in our statutes as a part of the laws of this State for more than forty years. They have one element in common, in that both make it a criminal offense to “injure, molest or destroy” the wires mentioned. However, there has always been this difference between the two acts, namely: To come within the interdiction of the law under section 4597 it is essential that the act denounced be “willfully and maliciously” done, while under section 3336 all that is required is that the act be done “unlawfully and intentionally.” There is the further difference that the offense which makes malice an ingredient has always been a felony and punishable by a higher penalty, while the other has always been a misdemeanor.

The precise point made by appellant is that when section 3336 was enacted in 1865, section 4597, an older law, was repealed by implication, for the reason that the later act covered the same subject and was the last expression thereon of the law-making body; that being so repealed, the incorporation of section 4597 in the subsequent revisions of the statutes, and the attempted amendment thereof in 1901, did not give it vitality.

Conceding the correctness of appellant’s assumption that the later act covered the same subject as the earlier, his reasoning is sound and his contention should be sustained. However, we are of opinion that there is not identity of subjects in the two acts and that the Legislature did not intend section 3336 to operate as a repeal of section 4597. All that is necessary to allege or prove under section 3336 is that the act charged was done unlawfully and intentionally. The animus of the defendant is not an element of the crime and need not be averred or proved. Under section 4597 malice is an element of the offense and an issuable fact to be determined by the jury. In a prosecution under the latter section, if the jury should find that the act charged was not willfully and maliciously committed it would be their duty to acquit. The difference in the language of each section, characterizing the intent with which the act is done, ordinarily would leave no doubt that the two sections describe essentially distinct offenses. The contention that each section covers the same subject grows out of the construction placed upon Sec. 4629, R. S. 1909, authorizing an inference of malice from proof that the act was “wrongfully, intentionally and willfully done.” Said section 4629 is as follows:

“It shall not be necessary to show on the trial of any offense for malicious trespass or injury to property specified in this article that the offense was committed from malice conceived against the owner of the property, or against the animal or property injured; but if the act was wrongfully, intentionally, and willfully done, it may be inferred that it was done maliciously. ’ ’

In the enactment of the section just quoted, it was not the intention of the Legislature to dispense with malice as an, element of the offense in malicious mischief statutes, but rather to authorize an inference of that element of the crime upon proof of certain other facts, thereby, relieving the State from proof of malice in' making a prima facie case. It was still open to the accused to prove, as a complete defense to the charge, that though the act was unlawfully and intentionally done, it was not done maliciously. This view of the statute is supported in Kelley’s Crira. Law & Prac., Sec. 766, in the following language:

“Willfully and maliciously, as used in these statutes, imply an intention to do harm by committing the injury, or an evil and wicked intention to do mischief, however general. If the act is proved to have been done intentionally and willfully, it may be inferred to have been done maliciously, unless the contrary be shown.” See also State v. Graeme, 130 Mo. App. 138, and State v. Prater, 130 Mo. App. 348. Construing a malicious mischief statute in ■ the Graeme case, supra, it was decided, as stated in the third syllabus, that:
“In the prosecution of an employee of a telephone company under Sec. 1950, R. S. 1899, for maliciously destroying certain trees growing along the sidewalk, to prevent their interference with the company’s wires and poles, in order to authorize a conviction, it was necessary for the jury to find that the act was wantonly or maliciously done and an instruction authorizing a conviction without finding the element of malice was error.”

Our attention is called to the case of State v. McKee, 126 Mo. App. 524, as being in conflict with the views herein expressed. If that case is to be understood as holding that the “evil animus” of the defendant is not an element of malicious mischief statutes, then it is not in accord with the doctrine of the later cases of State v. Graeme, supra, and State v. Prater, supra.

Our conclusion is that the two statutes define two distinct offenses of radically different grades of culpability and provide punishment meted accordingly. They do not cover the same subject, are not repugnant, and therefore the enactment of section 3336 did not operate as a repeal of section 4597.

II. Appellant complains that the court erred in admitting, over his objection, testimony tending to prove statements made by him out of court, in which he threatened, using profane language, that if tbe company cut off his service he would “show them a good time getting by his ’phone.” This testimony was clearly competent, both upon the issue of malice and as tending to prove the commission of the offense.

III. The information was in three counts and charged three separate offenses, the only difference being in the dates of their commission. After the jury was sworn to try the case the prosecuting attorney entered a nolle prosequi as to the second and third counts and elected to proceed to trial upon the first. The second and third counts alleged the dates of the crimes charged respectively as of February 8, 1910, and February 10, 1910, while in the remaining count the date alleged was February 3 of the same month. ÍTpon the trial the State, over the objection of the defendant, was allowed to introduce evidence tending to prove an offense committed on February 8, being the date alleged in the second count. Among other instructions the defendant requested the following, which the court refused, namely:'

“You are instructed that under the information in this case as filed, there were three counts therein charging the defendant with the twisting and entangling of the wires on each of the dates, to-wit, February 3, February 8, and February 10, 1910, and after the jury had been impaneled and sworn to try the cause, and after the State had made its opening statement to the jury, and after the defendant had moved the court to require the State to elect on which count of its said information it would proceed to trial, the State entered a nolle prosequi as to the second and third counts of said information, which were the offenses alleged to have been committed on February 8 and February 10, 1910; that, by said action of entry of a nolle prosequi, the defendant was acquitted of the offenses alleged to have been committed by defendant on February 8' and February 10, 1910', and therefore you cannot find defendant guilty of any of said alleged offenses committed on the 8th and 10th days of February, 1910. ”

We think the defendant was entitled to this instruction and that it was error to refuse it. When the jury was sworn to try the case the defendant was placed in jeopardy upon each of the offenses charged. The nolle prosequi as to the second and third counts operated as an acquittal thereof. [State v. Patterson, 116 Mo. l. c. 511, and cases cited.]

In the Patterson case, supra, this court said: “As the defendant was tried and convicted on this count, it is unnecessary to notice the other counts further than to say that the jury, having found the defendant guilty as charged in the third count, that this amounted to an acquittal of the charge in the first count. [State v. Whitton, 68 Mo. 91; State v. Hays, 78 Mo. 600.] And that as the defendant was put on his trial on the second count, and thus placed in jeopardy, the dismissal by the prosecuting officer as to such count operated an acquittal of that count. [Wharton’s Criminal Practice and Pleading, Sec. 383 and cases cited.]”

The learned Attorney-General contends that as one count was left in the information, upon which the defendant was tried, and that as time is not of the essence of the offense, it was competent for the State, under the Statute of Jeofails, to prove the commission of the offense at any time within three years next before the filing of the information. There is no doubt as to the correctness of the Attorney-General’s position if the information had contained but one count and there had been in the case no question as to former jeopardy or acquittal upon the other counts. However, when the only difference between offenses is the date, and there has been an acquittal or former jeopardy as to one or more, there is in such case an exception to the general rule that time, within the period of limitation, is not material. Time then becomes material and is the only means by which the accused can protect himself against being twice placed in jeopardy for the same offense.

This question was before the Court of Appeals in the case of State v. Wilson, 39 Mo. App. 184, in which Rombauee,, P. J., speaking for the court (l. c. 185) said: “We concede that the date, on which the alleged offense was committed, is generally immaterial, and that proof that the offense was committed within one year before the finding of the indictment will suffice, although such proof does show that the offense was committed on some other day than the day mentioned in the indictment. But the general rule is inapplicable to cases where the offender has been tried for the same offense, on other indictments covering the same period, and where the exact date is the only dis • tinguishing feature between one indictment and another. We had occasion to refer to this in Town of Kirkwood v. Antenreith, 21 Mo. App. 75. Were the rule otherwise, a defendant might be convicted any number of times for the same offense.”

It is true that in the Wilson case it was shown by the testimony that the witnesses for the State had testified to the same facts upon former trials and upon similar charges against the defendant, but that fact does not distinguish it from the case at bar, in which the prosecuting attorney, after entering a nolle prosequi as to the second and third counts, introduced testimony under the first count, tending to prove the identical offense charged in the second count. The information charged but one offense of that date, to-wit, February 8, 1910. The testimony did not show more than one offense on that date, and the record showed an acquittal of the offense charged to have been committed on that date. As the only distinction between the three counts was the dates, how could the defendant be given the benefit of an acquittal of the offense charged in the second count, unless it could be identified by its date? The nolle prosequi conferred upon the defendant full immunity from a.retrial for that crime and we think he was clearly entitled to the refused instruction.

IV. The information charged that the defendant, at the time and place designated, “injured, molested and destroyed the wires,” etc. Instruction numbered 5 authorized a verdict of guilty upon a finding that the defendant did “injure, molest, or destroy,” etc. The verdict in a criminal case must be responsive to the charge and definite and certain as to the crime of which the defendant is convicted. While it is made an offense by the statute either to injure, molest, or destroy wires in the manner described in the statute, the instructions authorizing a verdict of guilty should not be in the disjunctive, but should require a finding of one particular act constituting the offense; or if more than one of the acts are set forth in the instructions, they should be stated conjunctively. [State v. Washington, 242 Mo. 401; State v. Jackson, 242 Mo. 410.]

• Other errors are assigned by appellant which, in view of the disposition made of the case, we do not deem it necessary now to decide. The judgment is reversed and the cause remanded.

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