author: WHITE, C.

text:
    THE STATE v. JESSE PRUNTY, Appellant.
    Division Two,
    December 23, 1918.
    1'. LARCENY: Presumption from Possession of Stolen Property: Exclusive. In the application of the rule that the presumption of guilt of burglary and larceny can arise from possession of stolen property only when the possession is exclusive, the possession is to be determined by the kind and character of the property. In order to raise the presumption it is not always necessary to show actual manual possession. In this case the evidence of possession of the money stolen from a burglarized bank in Missouri was sufficient to raise the presumption of the guilt of two men who the next day drove into a city in Illinois in an automobile, from which was taken a traveling bag containing the money.
    2. ALIBI: Instruction: Burden. An instruction telling the jury that if they have a reasonable doubt of the presence of defendant at the time and place where the crime was committed they should acquit him, is sufficient for the purpose of placing the burden upon the State of proving his guilt beyond a reasonable doubt and gives him the full benefit of the defense of alibi.

    3. EVIDENCE: Tracks of Automobile. Where defendants were caught carrying in an automobile money stolen from a bank burglarized in the night time, evidence showing the tracks of an automobile in a wheat field three-fourths of a mile from the bank was admissible.
    4. -: Bank Burglary: Proof of Previous Theft of Automobile: Preparation. It is always competent to prove preparation of means bf which a contemplated crime may be committed and escape made, even though such evidence tends to prove the commission of another and independent crime. In the trial of defendants for burglary with explosives and larceny, it is competent to prove that four days before the bank was burglarized the automobile, in which the money was carried away and which was found in possession of defendants, was stolen in a distant town, since the two crimes were so related that proof of the one tended to prove the commission of the other.
    5. PROSECUTING ATTORNEY: Argument to Jury: Comment Upon Defendants. When a defendant takes the stand as a witness in his own behalf, the prosecuting attorney in his argument to the jury may make any legitimate comment on his testimony, and may call attention to his failure to explain certain facts which would tend to aid his defense.
    6. -: -: -: Failure to Explain. A reference by the prosecuting attorney in his argument to the jury to the failure of both defendants when arrested to satisfactorily explain their possession of the stolen property, cannot be regarded as a reference to the failure of one of them to testify.
    7. -: -: -: Statements at Time of Arrest. Statements of a defendant when arrested on the charge of committing a crime are admissible against him, and are therefore proper subjects of comment and argument by the prosecutor.
    8. --: -:-: Alibi: Failure to Produce Testimony. Where the appellant in support of his defense of alibi has testified that on the day following the burglary of a bank in Missouri he and the other defendant went from his home in Peoria, Illinois, to Farmington, another town twenty-five miles distant, to buy an automobile from a named person, it is not improper for the prosecutor, in his argument to the jury, to call attention to appellant’s failure to produce evidence in support of said alibi. Said comment is also competent aga'nst the other defendant and can not be regarded as a reference to his failure to testify.
    9. -:--: -: Desperate Character of Defendants. Remarks by the prosecuting attorney, speaking of defendants as desperate characters who came into the county to commit crime, saying it was a serious menace to society to permit such men to run at large and appealing to the jury to assess the maximum punishment, detached from their context, are held not to be improper comment on the evidence presented.
    10. SUBMISSION OF CASE TO JURY. Under the cwcumstances of this case it is held that the jury could not have understood that the case was being submitted to them without instructions from the court, at the noon hour, after the argument was closed, or that they were at liberty to deliberate together upon their verdict until further instructed.

      Appeal from Audrain Circuit Court. — Eon. Ernest 8. Gantt, Judge.
    Affirmed.

      A. G. Whitson for appellant.
    (1) There being no circumstances in any way connecting the defendant with the burglary, not even the circumstance of recent exclusive possession of any of the property alleged to have been stolen, the verdict is contrary to the law and the evidence in the case. State v. Castor, 93 Mo. 250; State v. Warford, 106 Mo. 62; State v. Scot!, 109 Mo. 230; State v. Drew, 179 Mo. 321; State v. Hammons, 226 Mo. 611; State v. Belcher, 136 Mo. 137. (2) Evidence as to other crimes or larceny must be such as to prove the specific crime charged, or prove motive, the absence of accident or mistake, a common scheme or plan embracing the commission of both offenses, or the identity of the defendant charged with the offense. State v. Barnes, 204 S. W. 266; Underhill on Crim. Evidence, sec. 305. (3) While it is admissible to prove the presence of recent unaccounted for footprints or wagon tracks in the curtilage of a house that has been .burglarized or in the road leading to it, such evidence must not be too remote. The testimony as to car tracks three-fourths of a mile from Farber was entirely too remote, nor was the time when made proved or any connection shown with the defendants by any circumstances. The evidence of Gray as to such tracks should not have been admitted. Underhill on Crim. Evidence, sec. 374. (4) Possession of stolen property to be evidence of guilt must be exclusive, not constructive. A defendant can only be required to account for the possession of things which he actually and knowingly possesses, that is where the goods are found on his person, or in his private apartment or in a place of .which he keeps the key. The possession must not be second-hand; neither will a defendant be required to account for a possession which could also with equal right be attributed to another. State v. Drew, 179 Mo. 320; State v. Warford, 106 Mo. 63; State v. Castor, 93 Mo. 252; State v. Mills, 58 Mo. App. 159; Van Straten v. People, 56 Pae. 905. (5) If recent exclusive possession of stolen property is shown in defendant, it may be explained by the facts and circumstances in the case or rebutted by evidence of good character or by alibi, and if so explained or rebutted the instruction on such point must give the defendant the benefit of such good character or of alibi. State v. North, 95 Mo. 615; State v. Wright, 199 Mo. 166; State v. McNalley, 87 Mo. 659; State v. Taylor, 118 Mo. 173; State v. Mills, 199 S. W. 133. (6) Recent, exclusive, unexplained possession of stolen property may be' sufficient evidence to sustain a conviction of larceny, and perhaps most of the authorities agree that it makes a prima-facie ease if a crime has been shown to have been committed by some one. According to the weight of authority it is rather a presumption of fact, or circumstantial evidence, and is governed by rules of that class of evidence. It being a mere inference of fact or prima-facie proof the court erred in charging the jury to convict on that alone, thereby in effect directing a verdict of guilty, or at the least putting the burden on the defendant of proving his innocence of the charge against him. It is a fundamental principle that no amount of evidence can shift the burden of proof from the State. The weight or force of any such evidence is for the jury. 1 Greenleaf on Evidence, sec. 34, note E; Van Straten v. People, 56 Pac. 905; Ayers v. State, 21 Tex. App. 399; State v. Brady, 91 N. W. (Iowa) 805; State v. Hodge, 50 N. II. 510; Wigmore on Evidence, sec. 2513; Underhill on Crim. Evidence, sec. 299. (7) Alibi is not an affirmative defense but merely ordinary evidence in rebuttal, and there is no burden on the defendant to prove such alibi, but if all the evidence in the case raises a reasonable doubt of defendant’s presence at the place of crime or elsewhere, he is entitled to have such doubt carried into the whole case and be acquitted. The

      court must not by instruction place tbe burden of sucb defense on tbe defendant or in any way disparage it. Tbe proof tbougb insufficient to establish tbe defense must not be excluded from tbe case by tbe instructions. State v. Taylor, 118 Mo. 174; Johnson v. State, 21 Tex. App. 368; State v. Crowell, 149 Mo. 391; State v. Jones, 153 Mo. 461; State v. Cusbenberry, 157 Mo. 189; State v. Howell, 100 Mo. 664. (8) Tbe Prosecuting Attorney must in his argument to tbe jury confine himself to facts developed at tbe trial. He must not comment on what defendant failed to say or do in bis defense. State v. James, 216 Mo. 402; State v. Drummins, 204 S. W 271.

      Frank W. McAllister, Attorney-General, Henry B. Hunt, Assistant Attorney-General, for respondent.
    (1) Tbe evidence conclusively connects appellants with the burglary. The circumstances in evidence, of recent possession of tbe stolen property, were amply sufficient to raise a presumption of tbe burglary by them, which, together with their explanation of sucb possession, was a question for tbe jury. State v. Armstrong, 170 Mo. 408: State v.Yandle, 166 Mo. 594; State v. Dale, 141 Mo. 288; State v. Hutchinson, 111 Mo. 263; State v. Toobey, 203 Mo. 678. (2) Tbe evidence of McCoy that tbe Ford car in possession of appellants was stolen property, and tbe evidence of Kunst, identifying said car, was admissible. Proof of other larcenies is admissible to prove: (a) Tbe connection of tbe appellants with tbe transaction of which they stand accused. 3 Bishop’s New Crim. Procedure, sec. 750: Clampitt v. United States, 6 Ind. Ter. 95; State v. Ditton, 48 Iowa, 678; State v. • Conway, 241 Mo. 279. (b) A common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish tbe other. State v. Hyde, 234 Mo. 226; State v. Bailey, 190 Mo. 280. (c) Preparation. Kelley’s Crim. Law, sec. 372; State v. Kelley, 65 Yt. 535; State v. Rider, 95 Mo, 485; State v. Sharp, 233 Mo. 287. (d) Preparation for flight. Underhill, Crim. Evidence (2 Ed.), sec. 118, p. 220. (3) The footprints and automobile tracks were not too remote in point of time or distance, nor was the evidence too remote to connect appellants with this automobile. Underhill, Crim. Evidence (2 Ed.), sec. 374; 8 R. C. L. 175. There were no objections made by counsel for appellants to the introduction of evidence as to the footprints of the three men. State v. Levy, 262 Mo. 191. (4) The possession of the stolen property was not second hand. The possession was rightly attributed to both appellants. “Possession, in this connection is not necessarily limited to custody about the person. It may be of things elsewhere deposited, but under the control of a person. In short, it may be in any place where it is manifest it must have been put by the act of the party or his undoubted concurrence.” 17 R. C. L. p. 73, sec. 77; 18 Am. & Eng. Ency. LaW (2 Ed.), 487; State v. Johnson, 60 N. C. 237; State v. Phelps, 91 Mo. 483. (a) Under the facts in this case, the jury was warranted in finding that appellants were jointly in possession of the stolen property. The possession, to raise a presumption of guilt, need not be exclusive. A joint possession is sufficient. State v. Toohey, 203 Mo. 679; State v. P>aker, 264 Mo. 355; State v. Phelps, 91 Mo. 483. (b) The transaction, as to the manner in which Adams became possessed of Funk’s grip, was extraordinary and unusual. All the circumstances surrounding this matter raised a suspicion that both Prunty and Funk were concerned in the offense charged, all of which was a question for the jury. State v. Schaffer, 70 Iowa, 375. (5) The instruction given on the question of alibi was correct. State v. Brown, 247 Mo. 727; State v. Barton, 214 Mo. 322; State v. Davis, 186 Mo. 539. (a) It was not necessary that the instruction concerning the recent possession of stolen property should contain a reference to the alibi set up by appellants. The general instruction given as to alibi applied to the whole case. State v, Maher, 132 Mo. 281; State v, Riney, 137 Mo. j05; State v. Walker, 194 Mo. 263. (b) Instructions must be considered all together; and if, as a whole, they present all the essential elements of the offense, and advise the jury on all questions of law arising in the case, they are not erroneous. State v. Maher, 132 Mo. 281; State v. Kinder, 184 Mo. 295; State v. Montgomery, 230 Mo. 671; State v. Riney, 137 Mo. 105; State v. Walker, 194 Mo. 263. (6) The instruction given, concerning possession of stolen property, was correct, and did not shift the burden of proof to appellants. State v. James, 194 Mo. 277; State v. Moore, 101 Mo. 324; State v. Levy, 262 Mo. 191. These instructions submitted to the jury the question whether the prima-facie case presented by the State was overthrown, and the jury was properly instructed that if such presumption was not overthrown, it should prevail. State v. Kelly, 73 Mo. 616; State v. King, 214 Mo. 390; State v. Court, 225 Mo. 614. (7) The instruction on alibi was sufficient in form and substance. State v. Barton, 214 Mo. 322; State v. Brown, 247 Mo. 727; State v. Davis, 186 Mo. 539. The court by such instruction, did not place the burden of that defense on appellants, or in any way disparage it; nor did such instruction exclude any of the proof relative thereto. State v. Hale, 156 Mo. 109; State v. Bateman, 196 Mo. 41. (8) The remarks of the prosecuting attorney complained of, not being embodied in the motions for new trial, are not reviewable. 'State v. Nickens, 122 Mo. 611; State v. Thavanot, 225 Mo. 550; State v. Miles, 199 Mo. 547.
   WHITE, C.

The appellant and one Harry Funk were tried on a joint information and convicted of burglary with explosives, and of larcenv. The defendants filed separate motions for new trials and prosecute separate appeals from that conviction, the companion case against Harry Funk being No. 20963.

The safe of the Farber Bank, located at Farber, Missouri, was blown open by explosives, and the bank robbed on the night of the thirteenth, or early in the morning of the fourteenth, of November, 1917. Farber is a town of 450 inhabitants in Audrain County, on the Chicago & Alton Railroad, about twenty miles northeast of Mexico, the county seat. The defendant Prunty and his companion Funk were apprehended in Peoria, Illinois, about four o’clock in the afternoon, November 14, 1917. The City of Hannibal was estimated to be forty miles or more from Farber, and Peoria about 115 to 125 miles from Hannibal.

On the evening of November 13, the bank vault, containing money and other valuables, was closed with a combination time-lock set to open the following morning at seven o’clock. About one o’clock a. m., November 14th, several persons in the town of Farber heard five explosions occurring about ten minutes apart. Investigation showed that the bank had been entered and the safe wrecked. It appears that the knob of the combination lock was knocked off, the crevice around the closed door filled with soap to prevent the escape of gas, the hole in the door filled with explosives, and the door then blown open.

The next morning blood-hounds were brought to the scene but refused to take the trail, it was said on ac- ' count of gas which filled the room; $2965.46 was missing from the bank safe, of which $1500 was in currency and the remainder in silver, nickels and pennies. It was discovered the next morning that a wheat field about three-quarters of a mile from the bank had been entered, through a gap in a wire fence, by an automobile which drove in, turned around and drove out. It came from the north and drove out toward the north. A wet place where the radiator had leaked indicated that the car had been stopped for a time. The footprints of three men led from where the car had been stopped out toward the road and toward Farber, and the footprints of apparently the same three were found returning to the car. The ground was soft, the footprints and car tracks were fresh, indicating they had been made the previous night. One or two witnesses testified that the tracks of the car indicated it was a Ford, with smooth tires in front and non-skid tires behind. The tracks of the car led north towards a place called Center, about fifteen miles from Farber, the tracks indicating at turns that the car was running fast. It was followed in that direction and beyond Center, where it came to a hard road and the trail was lost. It was going in the direction of New London and Hannibal. There was a bridge across the Mississippi River at Hannibal, and also one at Quincy, fourteen fifties north of Hannibal. Quincy was estimated to be 80 to 115 miles from Peoria. It was shown by the defense that a large car, not a Ford, passed over the toll bridge at Hannibal about 5:30 in the morning of the 14th, and no other kind of a car passed over that morning.

About four o’clock in the afternoon of the 14th, Prunty and Funk drove into Peoria in a Ford car with smooth tires in front and non-skid tires behind. A motorcycle policeman stopped them, because therie was no license number on the car. The ■ men and the car were taken to the police station for the purpose of investigation. The men said that three miles back, where they had stopped to get water, they had had a Missouri license tag on their car. The car was dusty, the men were dusty, “their clothes were mussed and dusty and their faces grimy.” Funk was driving the car. They said they had bought the car for $150 from a man they met on the' street in Mexico, Missouri-: They made this statement to the officer who arrested them and repeated it to the chief of police at the police station in the presence of another officer. The chief asked them if they had a bill of sale. Prunty searched for such document in his pocket, but could not find it and said he guessed he must have lost it. The men then were released, the car was retained for further investigation, and the officer who arrested the men was ordered by the chief to take the ear over to the patrol house for that purpose. In doing so he discovered a grip in it. This grip was taken to the chief’s office and examined. It was found to contain a revolver, some cartridges, a hack saw, some fuse and fulminating caps, a pair of greasy gloves, four collars and a shirt. Two collars, sizes 154, were unmarked, and two I64 collars and the shirt were marked “H. Funk.” Funk was a large man, five feet eleven inches in height, weighing 185 to 200 pounds; Prunty was about five feet, nine inches, weighing about 165 to 180 pounds — probable fits for the two sizes of collars.

There was also in the grip $1085.46 in silver, nickels and pennies, the denominations of the silver beiiig dollars, half-dollars, quarters and dimes — the same kind of coins as were taken from the bank. Fifty dollars in currency was found on Prunty, three ten-dollar bills and four five-dollar bills. Some of these bills were torn — had parts burnt or torn off — and small fragments of torn bills were found in the grip. The money taken from the bank was in five and ten-dollar bills. Some of the nickels found in the grip were done up in packages and wrapped with blank checks of the Farber Bank. It was shown that the Farber Bank was accustomed to wrapping its nickels in that manner and had some so wrapped in the vault of the bank on the night of the robbery. The officers also found in the grip a code book, such as is used by banks to abbreviate telegrams, which was identified by the bank officials as belonging -to the Farber Bank. In the code book, as it was found in the grip, was an envelope containing a check drawn by one R. Christoferson, payable to one John F. Kaiser, for $10.20. This check thus placed in the envelope and in the code book, as was shown by the officers of the bank, had been left at the bank for the purpose of delivery to the owner when called for, and they were in the vault when the bank was closed the night of November 13th. There was also found in the grip the - screw-head of a bolt which, when tried, fitted the hole in the door of the safe in the Farber Bank, from which it is supposed to have been blown by an explosion. This would indicate that the burglars in their hurry swept into the grip, without inspection, everything that was loose in the vault, including the telltale articles mentioned.

The Ford car in which the men arrived in Peoria was identified by N. E. McCoy, a minister of the Gospel, who swore that it was stolen from him at Slater,

Saline County, Missouri, November 10, 1917, four days before it appeared in Peoria.

After the discovery of the grip in the car the two. men were rearrested and examined separately by the officers as to where they got it. This was after they had had time to change their clothes. Prunty said as they were driving along the . road between Farming-ton and Peoria they overtook a man walking, carrying his grip. He asked for a ride and they took him in and brought him to Peoria. Farmington is about /

twenty-five miles west of Peoria. The grip, with its contents, weighed about sixty pounds, or more. Prunty was asked also about the currency found in his pocket and he said he didn’t know where he got it, that he just had it.

When Funk, separately, was asked about the grip he admitted that he owned it, and said the reason his collars and some of his effects were in it was that he had loaned it some time before to a man to take a trip.

He didn’t know the man well enough to know his name, and didn’t look in the grip to see what might be in it.

He said when they were driving through Ouincv on the 14th he saw the man to whom he had loaned the grip standing on the street and they picked him up and brought him to Peoria; Quincy was shown to be eighty or more miles from Peoria. It was not shown what Funk’s calling was, but Prunty had been a saloon-keeper and bartender, and a demonstrator for the Maxwell car.

In defense Prunty told a different story from either of those the two had related to the officers when arrested. The officer who intercepted them because of the absence of a license tag testified that at the time there was a third man on the hack seat of the Ford car; he 'saw him there in dim outline at the time the car was stopped. The curtains were on the car when there was no apparent need for them; that was one thing that attracted his attention. He did not see the man on the hack seat after that, nor know when he left the car; nor did anyone else see him. He was not in the car when it was taken to the patrol house for detention, and the sight of the man by the officer was such that he could not identify him if he had seen him again. On that shadowy individual the defense seems to be built up. Prunty testified that he and Funk went to Farmington, which is about twenty-five miles from Peoria, on the morning of November 14th, leaving Peoria about seven o’clock that morning. They went there for the purpose of buying a car from one Isaac Dalton. They did not see Dalton, nor find him in Farmington on that day, but early in the afternoon a man by the name of Adams drove through Farmington in the Ford car. In conversation with him they discovered that the car was for sale. Funk recognized the man driving the car and introduced him to witness by the name of Adams. They found that he was driving to Peoria. The man said he was tired and asked Funk to drive the car into Peoria for him. Funk did drive it into Peoria and arrived there sitting in the front seat with Prunty. He testified further that Adams told them on the journey that he had bought the car in Mexico, Missouri, for $150, and there was some conversation between him and Funk about the sale of the car to Funk. Prunty said further that before they arrived at Peoria, Adams, in the back seat, reached over and stuck a ten-dollar bill in witness’s pocket for his services in driving the car over, — one of the bills found on him when arrested. He said that Adams told him he drove from Mexico, Mo., that morning, and witness noticed the grip in the car at the time.

Mrs. Funk testified for the defense that Mr. Funk stayed at home on the night of the 13th, left early in the morning, November 14th, and returned .about 4:20. in the afternoon of that day; that some ten days before a man by tbe name of Adams came to tbe house to borrow her husband’s traveling bag; she picked it up and handed it to him; it felt light and she didn’t look to see if there was anything in it.

No attempt was made by the defense to corroborate the statement of Prunty relating to his alleged negotiations with the man Dalton, or his visit to Farmington on the day in question, nor was there any further attempt to identify Adams. The alibi offered in evidence depended entirely upon the testimony of Prunty and Mrs. Funk.

I. The defendant demurred to the evidence at the close of the State’s evidence, and again at the close of all the evidence. These demurrers were overruled and error is assigned here to those rulings. For that reason the evidence has been stated fully above. While the evidence is circumstantial it is quite convincing and sufficient to authorize a verdict of guilty. [State v. McGuire, 193 Mo. 215.]

The particular respect in which the State failed to make out its case, it is claimed, was its inability to prove the .possession of the stolen property in the defendant. It is asserted that in order to raise a presumption of guilt which would authorize conviction, it must be shown that such possession was exclusive in the defendant, was personal, actual and not constructive. Instructions in the usual form regarding such presumption were objected to and error assigned to giving them.

The rule is that the presumption of guilt from possession of stolen chattels can arise only when the possession is exclusive. Therefore, it is held that where stolen property is found in a house, or in a trunk, or other place to which other persons have equal access with the defendant, the possession is not proven so as to warrant such presumption. [State v. Castor, 93 Mo. 242; State v. Belcher, 136 Mo. 135, l. c. 137; State v. Warford, 106 Mo. 55; State v. Drew, 179 Mo. 315.] Also where property recently stolen was found near the premises of defendant and not on the property under his exclusive control. [State v. Hammons, 226 Mo. l. c. 611.] "Where property was found on the premises occupied by the wife of the defendant with whom defendant was not living at the time, the presumption was not raised. [State v. Owsley, 111 Mo. 450, l. c. 455.]

However, it has been pointed out that the character of the possession is determined by the kind and character of the property. In order to raise the presumption it is not always necessary to show actual manual possession. Some things are not capable of being carried in one’s pocket. The traveling bag in question was not. In the case of State v. Burns, 263 Mo. l. c. 599, the defendant, and another person jointly indicted with him, sold several sacks of cowpeas, which at the time were in the barn of the defendant. Neither the defendant nor his associate were near the barn, but told the purchaser where to get the peas. It turned but that the peas had been stolen. The presumption of guilt attached from such .possession as was shown.

In the case of State v. Toohey, 203 Mo. l. c. 679-80, the defendant was charged with stealing certain brass fixtures from a Pullman car. He went with another person, named Carrigan, to a junk shop, for the purpose of selling the articles. The court said although the stolen property was partly or even exclusively in the possession of Carrigan at the time it was purchased from him and the defendant by the junk dealer, yet defendant’s presence and association with Carrigan made the evidence of such possession competent.

The case of State v. Baker, 264 Mo. 339, was where certain goslings had been stolen and were found in the possession of defendant’s wife on defendant’s premises. It was held the possession was sufficient to warrant the presumption of guilt in the defendant.

In the case of State v. Phelps, 91 Mo. 478, l. c. 483, the defendant was traveling with a woman whom he introduced as his wife; certain stolen goods were found in her possession, and the possession was held sufficient to warrant the presumption of guilt against him.

In the case of State v. Wohlman, 34 Mo. 482, a woman was convicted of larceny. The evidence showed that certain jewelry was stolen from a store and this jewelry was found on the person of defendant’s husband after she had joined him at some distance from the store; it was held that the presumption of her guilt obtained upon such possession. [See also Murphy v. State, 86 Wis. 626; Frazier v. State, 135 Ind. 38; Mass v. State, 81 S. W. (Tex.) 46; 17 R. C. L. p. 71, sec. 76.]

That the traveling bag taken from the automobile in which the defendant and his companion were driving contained the property taken from the burglarized bank, was hot disputed. Just here the appellant claims there was no exclusive possession of that traveling bag, because of the presence of the alleged Adams who, Prunty testified, owned the car.

The two men Punk and Prunty drove into Peoria in apparent exclusive control of the car. They were halted on account of having no license tag, made no, disclaimer of absolute control and possession of the car, went to the police station for the purpose of straightening out the matter without any other kind of a claim; explained that they had bought the car in Missouri a few days before and that they had lost the Missouri tag; so far as the facts and their state-, ments showed they were in exclusive possession of the car and its contents. The traveling bag belonged to Funk, as was admitted.

It was further shown by the tracks of three men that that number probably had been engaged in burglarizing the bank. The uncertain individual on the back seat of the car, whom the motorcycle officer thinks he saw when he started the car toward the police station, and whom nobody else saw in the car either then or afterwards, is the only evidence that any other person Avas in the car at the time the defendants were intercepted. In explaining the presence of the traveling bag after their arrest Prunty said that the stranger had got in to ride with them at Farmington, and Funk said he got in at Quincy (some fifty miles further), but neither explained where he left the car nor what became of him. If there was a third person in the car at the time they were intercepted it might be inferred that he was one of the trio who robbed the bank, and that Funk and Prunty were the other two. Their inconsistent explanations of his presence were entirely contradicted by the later explanation of Prunty on the stand. He then said Adams was driving the car and picked them up. The third man, if there was one, might have escaped from the car before they got to the police station or before it was taken in charge by the officer. The proof of possession was entirely sufficient to warrant the presumption.

The instructions mentioned were in the usual form, covered every contingency of fact, and allowed the jury to say, under the evidence, whether the exclusive possession of the stolen property was in either one or both of the defendants, or in Adams, or in all were further instructed that unless such possession was in defendants they should acquit. The instructions were authorized by the cases cited above. [State v. Burns, 263 Mo. l. c. 599; State v. Baker, 264 Mo. l. c. 355; State v. James, 194 Mo. l. c. 277.]

II. Appellant claims the instructions were not proper because his defense of alibi was not embodied in such a way as to place the burden of proving guilt beyond a reasonable doubt upon the State. The point is not well taken. The jury was instructed as to the defense of alibi and told that if they had a reasonable doubt of the presence of the defendants or either of them at the time and' place where the crime was committed, they should acquit them, or either of them. This was entirely sufficient for the purpose and gave defendants the full benefit of that defense and did not place the burden upon them. [State v. Howell,

100 Mo. l. c. 664-5; State v. Wright, 199 Mo. l. c. 165-6; State v. Bateman, 196 Mo. l. c. 41.]

The instructions given by the court at the request of defendants were voluminous and covered every possible phase of their defense. Appellant claims that the court failed to include in the instructions any reference to the question of his good character, ®ie evidence of good character presented by him would hardly justify its consideration, but the court did give a correct instruction asked by him covering that particular phase of his defense, and therefore he cannot complain.

III. Error is assigned to the admission of evidence showing the tracks of an automobile in the wheat field — no objection was made to the evidence of tracks of men. Such evidence, usually, is held admissible. [Underhill on Criminal Evidence, sec. 374.] Although such automobile tracks were three-fourths of a mile from the bapk, the place was entirely convenient for the purpose; besides, the defendants were caught carrying the loot in the car which apparently had made the tracks. The evidence was admissible to show the criminals were trailed.

IV. It is claimed that error was committed in admitting evidence that the Ford car was .stolen on November 10th, in Slater, Missouri, on the §'roim(^ that that was a separate and distinct crime for which defendants might be tried.

It is always competent to prove preparations beforehand of means by which a contemplated crime may be committed and escape made, though such evidence tends to prove the commission of another and independent crime. [State v. Rider, 95 Mo. l. c. 485; State v. Sharp, 71 Mo. 218.]

The possession by defendants of the stolen automobile, their possession of the stolen money, and their carrying it away in the automobile, connected the two crimes; they were so related that proof of one tended to' prove the commission of the other by the same parties. The evidence was admissible for that reason. [State v. Hyde, 234 Mo. l. c. 226; State v. Barnes, 204 S. W. l. c. 266; State v. Bailey, 190 Mo. l. c. 280, 282.]

Y. Appellant claims error was committed in permitting the prosecuting attorney, in his argument, to make certain comments regarding defendants. The passage from the argument quoted in the record is a skeleton and fails to give the context. Three features, however, appear in the passage quoted. One is a reference to the unsatisfactory statements about picking up Adams made to the officers by defendants when they were arrested, and comment upon their failure at the time to make a satisfactory explanation of their possession of the stolen property. The second feature of the argument related to the failure of defendants to produce additional witnesses in support of their alibi — their failure to bring testimony from Farmington to show their presence there on the 14th. The third feature related to the remarks of the prosecutor when he spoke of the defendants as desperate characters, coming into the county to commit crime, and said it was a serious menace to society to have men like that running at large; he also appealed to the jury to fix the maximum punishment.

The reference of the attorney to the failure of Prunty and Funk to explain, when arrested, cannot be regarded as a reference to the failure of Funk to testify in the case. [State v. Gordon, 253 Mo. l. c. 518; State v. Ruck, 194 Mo. 416; State v. Fields, 234 Mo. 625.]

The statements of a defendant when arrested on charge of committing a crime are always admissible aaainst him. [State v. Daly, 210 Mo. 664; State v. Wilkins, 221 Mo. 448.] Since the statements of defendants at the time they were arrested were properly admitted in evidence they were proper subjects of comment and argument by the prosecutor. If their statements were inconsistent, flimsy and improbable, it was entirely proper for the prosecutor so to characterize them.

The failure of the defendants to produce evidence in support of their alibi by bringing witnesses from Farmington was a proper subject of comment. Prunty testified in his own behalf regarding the alibi by saying that he and Funk spent the day in Farmington. It is now the rule in this State that when a defendant takes the stand in his own behalf the prosecutor in his argument may make any legitimate comment .upon defendant’s testimony, and may call the attention of the jury to his failure to explain certain facts which would tend to aid his defense. [State v. Larkin and Harris, 250 Mo. 218; State v. Lewis, 264 Mo. l. c. 432; State v. Murray, 193 S. W. l. c. 833-4.] These eases overrule earlier cases upon this proposition. In the Larkin case the prosecutor called attention to the failure of the defendant, while he was on the stand, to deny certain statements attributed to him. Here the prosecutor called attention to the failure of Prunty to produce evidence in support of his alibi; that is, in support of Prunty’s own statement about his presence in Farmington on the dav in nuespon. Tt was nro-npr also, as against Funk, because it could not be regarded as a reference to his failure to testify any more than it would be to mention the failure of the defendants to produce evidence in support of any feature * of their defense. [State v. Hughes, 258 Mo. 271; State v. Parker, 172 Mo. 191; State v. Preston, 77 Mo. 294.]

The other remarks made by the prosecutor, detached from their context as they are, do not appear to be improper comments upon the evidence as presented.

VT. After the argument of the case the sheriff was directed to take charge of the jury and show them to the jury room, whereupon the defendants objected on the ground that the case was being sub-m^ted to the consideration of the jury without instructions from the court. The court overruled that objection and thereby erred, it is claimed, by the appellant.

The court, upon this objection being made, said in the presence of the jury: ‘ The court has not submitted the case to the jury. It is now the noon hour and the jury will be given their dinner before the case will be submitted to them.”

The jury could not have understood the ease was submitted to them, nor that they were at liberty to deliberate together upon their verdict; nor is it claimed that they did in fact deliberate upon the case for one moment before they were fully instructed, which was done at 1:15 when they returned to the court room. They were not released from the instructions usually given them regarding their behavior during the progress of the trial; it is not claimed there was a lack of such instruction.

Other errors are claimed which we do not find it necessary to consider.

The judgment is affirmed.

PER CURIAM: — The foregoing opinion by White, C., is adopted as the opinion of the court.

All the judges concur.


source: Caselaw Access Project

author: FARIS, J.

license: Public Domain

text:
    THE STATE v. SOLOMON FOX, Appellant.
    Division Two,
    December 23, 1918.
    1. INSTRUCTION: Peremptory: Criminal Case.. An instruction telling the jury that “the court instructs the jury as a matter of law that there is no evidence in this case showing or tending to show that defendant was justified in killing the deceased” is erroneous, where the defense is not self-defense and defendant does not testify; for it assumes that he did kill the deceased. Although upon his arrest defendant stated he killed deceased, that was not a judicial confession, but presented a question for the jury. Such an instruction takes from the jury’s consideration matters urged in defense or justification.

      2. -: Specific Assignment: Wrong Number. If tbe motion for a new trial so quotes the words of the erroneous instruction given as to make it clear 'yldcb1 instruction is referred to, the assignment is specific enough to require its review on appeal, although it designates it by a wrong number.
    3. -: Heat of Passion: Not Necessary’to Define. If the instruction details every pertinent fact from which a heat of passion might have arisen, and then instructs the jury that such facts, if found by them, will reduce the offense to manslaughter in the fourth degree, it is not error to fail to define the words “heat of passion.”
    4. -: Adultery With Defendant’s Wife. An instruction telling the jury that if deceased was trespassing upon defendant’s premises and being found by defendant in the act of adultery with his wife was shot and killed, they should find defendant not guilty, should be refused. In this case there is no evidence upon which to base such an instruction, but even if there were, if deceased was killed by defendant upon being caught in adultery with his wife, before his heat of passion aroused by the fact had time to cool, he was guilty of manslaughter in the fourth degree, and not entitled to acquittal.
    Appeal from Audrain Circuit Court. — Hon. Ernest 8. Gantt, Judge.
    Eeversed and remanded. .

      Fry Fry for appellant.
    (1) The giving of an instruction which employs the term of “heat of passion” and fails to define the same, is error, and works a reversal of the judgment. State v. Skaggs, 159 Mo. 581; State v. Carion, 266 Mo. 90. (2) The State’s fifth instruction is clearly erroneous and highly prejudicial. There was no occasion ,, for giving it. Here the court instructed the jury “there'7 is no evidence in the case showing of tending to show that defendant was justified in killing the deceased.” The instruction is peremptory. It took away from the jury the issue as to whether he was guilty or not guilty. If it was the purpose of the court to direct the jury that there was no “self-defense” or “justification” or “provocation,” then that should have been done by proper instruction defining these terms. The court should have at least explained or defined to the jury what it meant by “justification in killing.” It in effect told the jury the defendant killed the deceased and was not justified or was guilty and had no defense. The court should not give an instruction having no application to the case. State v. Rose, 32 Mo. 246. The giving of an instruction which the jury might understand as taking from their consideration one element of the prisoner’s defense, is ground for a reversal of his judgment. State v. Foley, 12 Mo. App. 431. (3) Under-the evidence the court should have given defendant’s first, second, third and fourth instructions, refused. The deceased was a trespasser and engaged in an unlawful act. It was a question for the jury to determine whether in protecting his home and his wife and ejecting the deceased, the defendant used ordinary caution in ejecting the deceased. It is clear from the evidence the defendant did not intend to injure the deceased and he was accidentally killed. The evidence shows the defendant saw the deceased in the coal house with his wife in the act of adultery and could have killed him, if that had been his purpose, but only shot after he came out at a distance and he shot only to frighten him and accidentally hit him. The deceased was a violator of the law and the defendant was justified in using all necessary force for the protection of his home and his wife. State v. Foley, 12 Mo. App. 431; State v. Eastham, 240 Mo. 252; Morgan v. Durfee, 69 Mo. 469; State v. Grugin, 147 Mo. 39; State v. Harper, 149 Mo. 514.

      Frank W. McAllister, Attorney-General, G. P. Le-Mire, Assistant Attorney-General, for respondent.
    (1) The peremptory instruction requested on behalf of the defendant at the close of all the evidence was properly refused. State v. Wertz, 191 Mo. 578; State v. Pollard, 174 Mo. 614; State v. Warner, 74 Mo. 85. (2) A general assignment in the motion for new trial, alleging error in giving or refusing instructions, presents nothing for review in this court; therefore, instructions 4 and 5, given by the court, and defendant’s first, second, third and fourth instructions refused by the court, are not saved for review here. State v. Snyder, 263 Mo. 668; State v. Bowen, 263 Mo. 279; State v. Douglas, 258 Mo. 290. (3) The court did not err in giving instruction No. 8. Almost identical instructions have been approved here in numerous cases. State v. Hudspeth, 159 Mo. 195; State v. Patterson, 116 Mo. 505.
   FARIS, J.

Defendant was charged, by an information filed in the circuit court of Audrain County, with "murder in the second degree, for that he had, as it was alleged, shot and killed one A. E. Critch field. Upon trial, he was convicted of manslaughter in the fourth degree, and his punishment assessed at imprisonment in the State Penitentiary for a term of two years. Prom this conviction, after the usual motions, he has appealed.

The facts, as the record discloses them, are peculiarly meager. Defendant at the time of the alleged commission of the homicide was about eighty years of age. He had been married three times. His third wife, with whom he was living at the time of the homicide, was about forty or forty-five years old, and in popular reputation, upon the phase of virtue, not above suspicion. The deceased, Critchfield, was sixty-four years of age, married, but'separated and living apart from his wife.

On the evening of January 16, 1917, the' dead body of the deceased was found in the grounds of one of the public schools of the City of Mexico, a little over one hundred feet from the rear of the premises occupied by defendant and his wife. There were two gunshot wounds in the body of the deceased, either of which was fatal, but one of which had penetrated the heart, or the great blood-vessel which ascends from the heart, evidently producing instant death. Upon being arrested defendant confessed that he had shot and killed deceased, but he did not relate any of the circumstances or details of such shooting and killing.

Defendant did not take the stand upon the trial and offered no testimony whatever thereon, save and except testimony touching his previous good character, which was shown to have been good. No competent evidence was offered from any source as to the motive for this homicide, though some evidence was permitted to be offered upon the trial, consisting wholly of hearsay, which seemingly throws some light upon the motive for the killing. One witness for the defendant was permitted to say that in a conversation with the wife of defendant, the latter admitted that a short time before the killing of deceased by defendant, she and deceased had been engaged in sexual intercourse in a little coal house situate at the rear of the premises occupied by defendant and his said wife. This coal house was, as forecast above, a little more than one hundred feet from the point where the body of deceased was found. There is no competent evidence in the case, however, that deceased and defendant’s wife were shortly before in the act of adultery, and none of any character that defendant caught deceased and his wife engaged in sexual intercourse at or just immediately prior to the homicide, or even that he knew they had been so engaged. Upon this point there was no testimony offered and no evidence whatever, except such attenuated inference as might arise from the hearsay testimony of the fact of sexual intercourse and from the nearness of the place thereof to the point at which the body of deceased was found.

Notwithstanding this condition of the record upon this question, the court instructed the jury upon manslaughter in the fourth degree, just as if there had been competent evidence of this defense.

Such other facts as will serve to make clear the points which we find it necessary to discuss, will be set out in connection with the expression of our views thereon.

On the part of the State the court, among others, gave the below instruction, to-wit: “The court instructs the jury as a matter of law that there is no evidence in this case showing or tending to show that defendant was justified in killing the deceased, A. R. Critchfield.” Defendant insists that the giving of this instruction constitutes reversible error. The learned counsel for the State concede that it was error to give this instruction, but they insist that this action of the court nisi, in giving this objectionable instruction, is not properly preserved in the record, in that no specific mention is made of this alleged error in the defendant’s motion for a new trial.

In this contention counsel for 'the State are in error. The giving of this instruction is specifically urged as error. Defendant’s motion for a new trial upon this point says: “The court erred in giving

instruction number 8, peremptorily instructing the jury that there was no evidence to show defendant was justified in killing the deceased.” (Italics ours). While the number of this instruction is five and not eight, as the assignment of error in the motion for a new trial has it, we ought not, in view of the verbal sufficiency of the assignment, to refuse to consider it on account of the mistake in setting out the number thereof, which mistake is from the context palpably a mere clerical misprision. The writer of the motion for a new trial had, in the clause thereof immediately preceding the assignment now under review, * complained of an instruction numbered eight on self-defense. It is plain that coming to the assignment of error bottomed on the giving of instruction five, counsel inadvertently wrote eight, instead of five, as was intended by him. Of course, the fact of inadvertence would not save the point; it is saved only by the definite setting out of the substance of the instruction. It is clear that we are not warranted in refusing to review this assign* ment of error for any lack of specific averment of it in defendant’s motion.

Coming to the merits of the point we are constrained to agree with the frank concession of learned counsel for the State, that the giving of this instruction was hurtful and reversible error. This is so for the reason, if for no other, that it tells the jury that defendant killed the deceased. It was for the jury to find, as one of the vital issues in the case, that deceased had been killed by defendant, and not for the court to assume this fact, or state in terms, as was done here, that defendant killed deceased. [State v. Mills, 272 Mo. 526.] Cases can be imagined wherein the statement that defendant killed the deceased, might not be fatal, as for example, where the killing is admitted and the defense relied on is self-defense. There was no such judicial admission in this case, and while there was evidence of the fact that defendant did kill the deceased, this evidence was for the jury. Ordinarily, such an instruction would be bad because it took from the jury a consideration of matters urged in defense, or justification. None such, however, are to be found in this case. In this respect the case is sui generis, and if the court had not in the instruction assumed as true a vital issue in the case, the Statute of Jeofails (Sec. 5115, R. S. 1909) might under the peculiar facts here have obviated a reversal, though we are convinced that an instruction of this sort has ordinarily no place in a trial upon any criminal charge.

Complaint is made that the court failed to define the technical term “heat of passion,” as used in the instruction given on. manslaughter in the fourth degree. While it is true that the court 'did not abstractly define this term, he yet set out concretely what facts would warrant such a heat of passion in defendant as would negative the existence of malice and deliberation and thereby reduce the crime from murder to manslaughter in the fourth degree. So much of the instruction oh manslaughter in the fourth degree as, in our view, serves to save it as against the error urged, reads thus:

“If from the evidence and under these instructions vou find and believe that at the County of Audrain and State of Missouri, on or about the 16th day of January, 1917, or at any time within three years next before the filing’ of the information herein, the defendant intentionally shot with a pistol loaded with gunpowder and leaden balls said A. R. Critchfield, and thereby inflicted upon him a mortal wound whereof on or about the 16th day of January, 1917, in said County of Audrain, he died, and that at the time of such shooting and wounding of said A. R. Critchfield the defendant was so far under the influence of a passion suddenly aroused by the defendant finding his wife and said Critchfield together in defendant’s coal house, or in the act of sexual intercourse on his premises where he lived as to make him incapable of thinking coolly of the natural consequences of his act, then you should convict the defendant of manslaughter in the fourth degree.”

The court nisi might have told the jury that the term “heat of passion” as used in the instruction means a heated state of the blood which negatives the existence of both malice and deliberation and which is aroused and exists in contemplation of law whenever a homicide is committed so immediately following a lawful provocation offered by the deceased to the accused as to afford no cooling time or any sufficient opportunity for cool judgment to resume its sway over the mind of the accused. But instead of doing this, thus abstractly the learned trial judge saw fit to tell the jury, in plain words, that if they found certain named facts (which defendant contends were shown in evidence) these facts were such as to reduce the offense'to manslaughter in the fourth degree. Manifestly, by this defendant had the benefit of every fact in the case, which in contemplation of law might have aroused heat of passion, and if this was an error (for that there was no evidence of the facts on which it was predicated), it was one committed in defendant’s favor, for which he may not be heard to complain. If so it be that by the interpolation into the above instruction of the disjunctive “or” the jury were told that defendant had the legal right (subject only to the pains and penalties of manslaughter) to kill deceased if defendant found his wife and deceased together in the coal house, that likewise would be an error in defendant’s favor for which he may not be heard to complain.

Defendant offered four instructions which were refused by the court. Obviously, this action of the court was proper. The instructions offered were all similar in trend and substance. Three of them told ^ they believed that deceased was trespassing on defendant’s premises, and being found by defendant in the act of adultery with the defendant’s wife, was shot and killed, the jury should find defendant not guilty. The fourth instruction was bottomed upon the above alleged facts and the additional theory of an accidental killing. It is enough to say that there was no proof in the record that deceased was killed while in the act of adultery with defendant’s wife, or that he was caught or found by defendant in such act immediately before the shooting, or at any other time, neither was there any evidence of an accidental shooting. Moreovei', these instructions all required an outright acquittal of defendant in case the jury found the facts upon which the instructions were predicated. This alone was error which warranted the refusal of three of the instructions. For if deceased was killed by defendant upon being caught in adultery with defendant’s wife, before the defendant’s heat of passion aroused by the fact had time to cool, he would yet be guilty of manslaughter in the fourth degree, and would not be entitled to an acquittal. [State v. Holme, 54 Mo. 153; State v. France, 76 Mo. 681; State v. Vest, 254 Mo. 458.]

For the error noted let the case be reversed and remanded.

All concur.


author: WALKER, P. J.

text:
    THE STATE v. ED. PORTER, Appellant.
    Division Two,
    December 23, 1918.
    1. INSTRUCTION: For Murder in First Degree: No Evidence. Although there is no evidence to sustain an instruction for murder in the first degree, a verdict for a less offense renders the giving of it non-prejudicial.
    2. CRIMINAL LAW: Harmless Error. A like rule as to the presence of prejudicial error to authorize a reversal is applicable in criminal as in civil cases, despite the requirement of the statute (Sec. 5312, R. S. 1909), that judgment shall be rendered on the record in criminal cases.
    3. AIDER AND ABETTOR: Common Purpose: Like Criminal Intent. To render one an aider and abettor and, as a consequence, guilty in like degree with the principal, there must be evidence of his knowledge of the intention or purpose of the principal to commit the crime. There must be a common purpose, by which is meant a like criminal intent, in the minds of the principal and the abettor, in order to render the latter guilty. [Distinguishing State y. Darling, 216 Mo. 450.]
    4. EVIDENCE: Clothing of Deceased. Demonstrative evidence, such as the clothing of deceased worn at the time of the homicide, is admissible, if it tends to connect the accused with the crime, or prove the identity of the deceased, or show the nature of the wound, or throw any relevant light upon any material matter at issue; and within these limits, its admission is largely left to the discretion of the trial court. When, however, the proof of the corpus delicti is admitted, and there is no question as to the identity of the deceased, or the fatal character of the wound, it is an abuse of the court’s discretion to admit in evidence bloody garments of the deceased worn when killed, as tending to show the nature and character of the wound.
    5. APPEAL: Transcript. The incorporation in the transcript of sixty or more pages embodying an account of the impaneling of the jury and the opening statement of the prosecuting attorney, to which no complaint was made, can serve no useful purpose on appeal, adds unnecessarily to the costs, and is to be reprobated. .
    Appeal from Cooper Circuit Court.r — IAm. Hopkins B. Sham, Judge.
    Reversed and remanded.

      John Cosgrove for appellant.
    (1) There was nothing in the evidence that would have justified a conviction of murder in the first degree. ° It was therefore error to submit to the jury the question of murder in the first degree, although the appellant was convicted of murder in the second degree. State v. Minor, 193 Mo. 609. (2) This court reversed the judgment rendered against the appellant on a former trial for the reason, in part, that the instruction 3 brought the question of conspiracy into the case. State v. Porter, 199 S. W. 160. Instructions nine and ten given in this case used exactly the same language, excepting the word “conspiracy.” There was no evidence tending even to show that there was any understanding or agreement or concerted actions between the appellant and Mills; there was no evidence that there was any deliberation or premeditation on the part of the appellant or that he had any knowledgé or even suspicion-ed that Mills entertained or that he harbored any resentment towards the deceased. The conflict arose on the spur of the moment. Said instructions are erroneous for the reason that there is no evidence that the defendant, Ed Porter, knew or had any intimation that Walter Mills intended to assault Carpenter, and that appellant entertained the same sentiment or - intention. (3) The court committed error in permitting the prosecuting attorney to display the bloody garments alleged to have been worn by Carpenter the night he was cut. There was no issue in the case that rendered such evidence competent or necessary. The death of Carpenter was not denied; the only question was, who dealt the fatal blow? The exhibition of these bloody garments in the presence of the jury when taken into connection with the remarks of the prosecuting attorney in appealing to public sentiment constitute reversible error. State v. Gartrell, 171 Mo. 517; State v. McAfee, 148 Mo. 379.

      Frank W. McAllister, Attorney-General, and Thomas J. Cole, of counsel, for respondent.
    (1) When one is convicted of a lower degree of offense, the fact that an instruction was given as to a higher degree of the offense does not constitute reversible error. State v. Morehead', 271 Mo. 88; State v. Goodwin, 271 Mo. 83; State v. Wilson, 250 Mo. 329. (2) The evidence is sufficient to sustain the verdict. State v. Concelia, 250 Mo. 425; State v. Underwood, 263 Mo. 685. (3) It was entirely proper to introduce the clothing worn by Carpenter for the purpose of showing the extent and location of the wound received. State v. Long, 209 Mo. 382; State v. Buchler, 103 Mo. 208; State v. Miles, 199 Mo. 546; State v. Wieners, 66 Mo. 29; State v. Wilson, 223 Mo. 189; State v. Brannan, 206 Mo. 642; Underhill on Criminal Evidence (2 Ed.), sec. 48.
   WALKER, P. J.

Appellant and Walter Mills were

charged by information in the circuit court of Cooper County with murder in the first degree, in the stabbing and killing of one Philip Carpenter, on the 12th day of May, 1917. After a severance, appellant was, at the January term, 1918, of said court, convicted of murder in the second degree, and his punishment assessed at twenty-five years’ imprisonment in the penitentiary. Prom this judgment he appeals.

This is the second appeal in this case. Upon the former trial in which the appellant was also tried severally, he was convicted of murder in the second degree, and upon an appeal the case was reversed and remanded (State v. Porter, 199 S. W. 158). There is no material difference in the evidence preserved for our review in the two cases. We have incorporated the material facts in this case in the opinion where deemed necessary to an intelligent discussion of the matters at issue; for a fuller statement, reference may be made to the former opinion. The errors complained of will be reviewed in the order iii which they have been presented by counsel for appellant.

I. The giving of an instruction for murder in the first degree is assigned as error. Conceding, as we must in the face of the facts, that there was no evidence to sustain this instruction and that the giving of same was error, it is robbed of its' prejudicial, effect by the verdict which found the appellant guilty of a less offense. We have uniformly held, except in the case of State v. Minor, 193 Mo. l. c. 609, in which the ruling in this regard was erroneous, that the giving of an instruction for a higher degree of an offense, although unauthorized, is harmless where one is convicted of a lower degree. [State v. Morehead, 271 Mo. l. c. 84; State v. Goodwin, 271 Mo. l. c. 83; State v. Fleetwood, 190 S. W. l; State v. Hutchinson, 186 S. W. 1000; State v. Darling, 199 Mo. l. c. 202.] While we are required to render judgment on the record in criminal cases (Sec. 5312, R. S. 1909), there is no more authority for the reversal of a criminal than a civil case where it is disclosed that the error complained of does not affect the merits of the action, or in other words, is not prejudicial (Section 2082, R. S. 1909). This contention of the appellant is, therefore, overruled.

II. It is contended with insistence by the learned counsel for appellant that error was committed in the giving of instructions numbered 9 and 10, at the request of the State. These instructions are as follows: “9. The court instructs the jury that every person who is present at the commission of a felony, aiding, abetting, assisting or encouraging the same by words, gestures, looks or signs, is in law, deemed to be anc^ aider and abetter, and is liable as principal. ‘_JBut on the other hand, mere presence at the fcommission of a felony or other wrongful act does not ¿finder a person liable as a participator therein; if he is only a spectator, innocent of any unlawful intent, and does not aid, abet, assist or encourage those who are actors, he is not liable as principal or otherwise. Therefore, although it is charged in the information in this case that Walter Mills and Ed. Porter, at the time and place as charged in the information, feloniously, wilfully, deliberately, premeditatedly, on purpose and of their malice aforethought cut and stabbed Philip Carpenter, giving to the said Philip Carpenter, a mortal wound in and upon the back of the neck, from which he died at the time and place mentioned in the information, yet it is not necessary for the State, in order to establish the guilt of defendant, Ed. Porter, to prove that Ed. Porter actually assaulted and cut and stabbed Philip Carpenter with a knife, as charged in the information, but if the jury find and believe that one Walter Mills gave the fatal blow with a knife, which caused Philip Carpenter’s death, as charged in the information, and that said Walter Mills is guilty of murder as explained in other of these instructions, and the jury further find that Ed. Porter knowing the unlawful intent of said Walter Mills, or having the same common purpose to kill Philip Carpenter in his mind, was present, aiding, abetting, helping, advising, comforting, maintaining, or assisting the said Walter Mills in such killing in any way or by any means, then such defendant is guilty of murder equally with said Walter Mills, who the jury may find and believed actually assaulted and stabbed Philip Carpenter, thus giving him the fatal blow, which caused his death, as aforesaid, and the jury should so. find.

“10. The jury are instructed that in order to cdnvict defendant, Ed. Porter, it is not necessary that he jury should believe that he actually assaulted and stabbed Philip Carpenter with a knife as charged in the nformation or that he even took hold of him or even ;ouched his person, but if the jury believe from the evidence that one Walter Mills assaulted and stabbed Philip Carpenter with a knife, inflicting the mortal wound from which said Philip Carpenter died, as -charged in the information, and you further believe that defendant, Ed. Porter, was present, and knowing the unlawful intent or with the same common purpose in view was aiding, abetting, helping, comforting, encouraging, or for the purpose and with the intent to aid and assist if necessary, the said Walter Mills in such killing, if it became necessary so to do, then the defendant, Ed. Porter, so doing or so present, is guilty of murder in the first degree equally with said Walter Mills, provided that said Walter Mills assaulted and stabbed Philip Carpenter with said knife and inflicted said mortal wound, from which said Philip Carpenter died, as charged in the information, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought, as defined and explained in other of these instructions.

“ And you are further instructed that if you find and believe from the evidence that at the time and place mentioned in the information one Walter Mills, willfully, premeditatedly, on purpose and of his malice aforethought, as explained in other of these instructions, hut without deliberation, stabbed Philip Carpenter with a knife, thus.and thereby inflicting upon the said Philip Carpenter a mortal wound of which said mortal wound the said Philip Carpenter at the time and place mentioned in the information died, and you further find that defendant, Ed. Porter, was present, and knowing the unlawful intent or with the same common purpose in view was aiding, abetting, helping, comforting, encouraging, in any way or by any means, the said Walter Mills in such killing, then defendant, Ed. Porter, is guilty of murder in the second degree equally with said Walter Mills, and the jury should so find, and assess his punishment for such second degree murder at imprisonment in the penitentiary for any length of time not, however, less than ten years.”

These instructions are drawn upon the hypothecated fact of the criminal responsibility of the appellant, in. having aided, abetted, assisted or encouraged Walter Mills in the assault with a deadly weapon which resulted in the homicide. Whatever may he said as to their correctness, under a proper state of facts, it remains to be determined whether there is any evidence to sustain them. The relevant facts, gleaned from the testimony of Walter Mills, the woman, and appellant, the only eye witnesses, are as follows:

Appellant and Walter Mills, negroes, at some time between ten and eleven o’clock on the night of the homicide, were at the house of one Ash Burnham, near the intersection of two alleys in Boonville, when appellant heard some one calling him. In response to the call, he and Mills went down to the intersection of the alleys where they saw a negro woman and two white men. The woman asked appellant to stand there until she could reach her home near at hand. He offered to accompany her, hut she said this was not necessary, and again requested him to stand there. At this juncture one of the white men, who afterwards proved to be Philip Carpenter, the deceased, stepped between appellant and the woman and asked the latter “if there was anything doing.” Appellant thereupon struck Carpenter with his fist. They boxed a few minutes when the deceased struck at Walter Mills, and the latter, with a knife in his hand, struck back. As the deceased fell, appellant bent over him, and Mills caught appellant by the arm and led him away. The woman did not see the appellant strike at any one, nor is there any evidence that he' had any weapon. Prom all of the testimony, it is evident that Mills alone was armed and that he struck the fatal blow. His own testimony is to that effect. No tact or circumstance indicates any purpose on the part of appellant and Mills in leaving Burnham’s house, other than to respond to the woman’s call. The purpose of her call was only learned by them when they 'ound her in the presence of the two white men. There is a like dearth of evidence to sustain the conclusion that appellant knew that Mills was armed or that he would participate in the difficulty in which the appellant ’ ecame engaged after their arrival on the scene. These conclusions are, in our opinion, justified by the facts we have detailed. If so, an Instruction for murder in >• death. (either degree was not authorized. The only theory upon which the propriety of such instructions can be upheld is that the appellant was either aiding, assisting, abetting or encouraging the principal, Mills, in the commission of the assault which resulted in Carpenter’s To render one an aider or abettor and, as a \ consequence, guilty in like degree with the principal in \ the commission of a crime, there should be evidence of his knowledge of the intention or purpose of the principal to commit the assault. In other words, there must have been a common purpose, by which is meant a like criminal intent in the minds of Mills and the appellant, to render. the latter ' guilty as charged, and hence, authorize the giving of the instructions. [State v. Hickam, 95 Mo. l. c. 332.] The rule as thus announced in the Hickam case, has received express approval by this Court ip State v. May, 142 Mo. l. c. 152, in which . we held that where two persons conspire to fight another with their fists, and one of them resorts to the use of a deadly weapon, without the other’s knowledge and consent, the other could not be held responsible. There is nothing in the case of State v. Darling, 216 Mo. 450, 115 S. W. 1002, 129 Am. St. 526, 23 L. R. A. (N. S.) 272, which militates against the rule, founded, as it is, upon reason and in full accord with the well established doctrine, that intent is always a prerequisite to the existence of crime. In the Darling case, a number of men conspired, of which there was ample evidence, to * rñvádc a man’s borne. They went there armed with deadly weapons for the brutal purpose of beating him. In furtherance of this common purpose^ all of these conspirators being present or near at hand, nna nf them struck the man on the head with a piece of iron and inflicted a wound from whiciTTTeafh resulted. It was hel^fEateach might be’Tound guilty of murder, /although none except the one who inflicted the fatal —/ blow, may, in going, have entertained a purpose to comMnit the crime. These facts, it will be seen, disclose first a conspiragy, and second, an arming with deadly weapons which, despite the averred purpose of merely in-Aiding corporal punishment on the person to he assaulted, indicated stronger than words that the commission of. a felony was within the purview of their concert of action. Their contemplated act was not only what the earlier cases designate as malum in se, hut their manner in preparing to executeU indicated that it was regarded by them as a dangerous undertaking. Not only was it. feloniojjs, therefore, but its homicidal character was not unreasonably beyond their contemplation. The correctness of the~conclusions, therefore, as to the like liability of these conspirators, under the facts, is not open to controversy. Judge Gantt has, in the Darling case, exhaustively reviewed all the cases on this subject, then reported, deducing therefrom the well established doctrine as^pplicable to the facts under consideration, that every one connected with the carrying out of a common design to commit a criminal act, is concluded by the act of any member of the combination perpetrated in the furtherance of such common design. This is true, regardless of the time or manner in which the concert of actbsa began; but_tjegin when it may, some fact or circumstance „must appear in evidence sufficient to satisfy a reasonable mind of its existence, before others than those actually participating in the commission of the crime can be held criminally responsible thgrefor. * A summary of the facts in the instant case as we have stated them in detail, shows that appellant, angered by the remark made to the woman by Carpenter, struck the latter with his fist. They exchanged several blows. Carpenter then struck or struck at Mills, who had thus far not participated in the difficulty, and the latter, as he states, struck back with a knife in his band. Carpenter fell, and his death was the result of a stab in the neck which severed his jugular vein. Neither before, during or after the difficulty is there in evidence ¿any fact or circumstance indicative of a common purpose on the part of appellant and Mills to commit tho criifte with which the former is charged. The giving of the instructions, therefore, was prejudicial error, /V&i^ from our own rulings, of which those cited are bux types of others, the following cases from courts of last resort elsewhere announce a like doctrine: Reg. v. Caton, 12 Cox (C. C.), 624; Wool-weaver v. State, 50 Ohio St. 277, 40 Am. St. 667; White v. People, 139 Ill. 143, 32 Am. St. 196; State v. Hildreth, 9 Ired. (N. C.) 440, 51 Am. Dec. 369; Connaughty v. State, 1 Wis. 159, 60 Am. Dec. 370; Floyd v. State, 29 Tex. App. 349; Bibby v. State, 65 S. W. (Tex. Cr. App.) 193; State v. Howard, 112 N. C. 859; Cecil v. State, 44 Tex. Cr. Rep. 450, 72 S. W. 197; McLeroy v. State, 120 Ala. l. c. 285; Lusk v. State, 64 Miss. l. c. 850; 16 C. J. pp. 128,129 sec. 115 and notes.

The refusal of certain instructions complained of were fully covered by those given.

III. The admission in evidence of the clothing of tbe deceased, worn at the time of the homicide, is assigned as error. Demonstrative evidence of this character is admissible if it tends to connect the accused with the crime, or to prove the identity of the deceased, or show the nature of the wound, or throw any relevant light upon a material matter at issue. [State v. Long, 209 Mo. l. c. 382; State v. Miles, 199 Mo. l. c. 546; State v. Thornhill, 177 Mo. l. c. 696; Cole v. State, 45 Tex. Cr. R. 225, 75 S. W. 527; People v. Wright, 89 Mich. l. c. 83.] Necessarily, the admission of this character of testimony must, within/the limits stated, be left largely to the discretion of the trial court. [Flege v. State, 93 Neb. 610, 47 L. R. A. (N. S.) 1112]; and only when it appears that this discretion has been abused will we interfere therewith. Where, however, as in the case at bar, the corpus delicti is admitted, there is no question as to the identity of the deceased, and the fatal character of the wound has been fully shown, it is difficult to see how the exhibition-in evidence of the bloody garments worn by the deceased when killed, can be justified, as was contended by the State, on the ground that they tended, to show the nature and character of the wound. [Rollings v. State, 160 Ala. l, c. 86.] On account of the manner, however, of their exhibition, it may well be questioned whether their effect was to improperly influence the jury.

We find no prejudicial error in other rulings upon the testimony.

The incorporation in this transcript of sixty or more pages embodying an account of the empaneling of tbe jury, and the opening statement of the prosecuting attorney, to which no complaint was made, is to be reprobated. It could serve no purpose in a review of the case and added unnecessarily to the cost of preparing the transcript.

For the reasons stated, this judgment should be reversed, and the case remanded that such action may be taken by the State as to it may be deemed proper under the testimony. It is so ordered.

All concur; Fañs, J., in result.