author: BROWN, P. J.

text:
    THE STATE v. JOSEPH CUMMINGS, Appellant.
    Division Two,
    March 12, 1913.
    1. BETTING ON HORSE RACE: Custodian of Money Wagered: Meaning. The legislative intent by the use of the word “custodian” in Sec. 4749, R. S. 1909, was to designate and embrace all persons who knowingly receive and l;old money which the party from whom it is received intends shall be held pending a horse race and be disbursed according to the result of such race. The word embraces any intermediate recipient or holder who takes money into his possession knowing it has been wagered on a horse race and intending to deliver it to another person to be disbursed when the result of the race is known.
    2.--: -: Information: Sufficiency: Offense Similar to Receiving Stolen Goods. Under existing statutes it is just as much a violation of the law to knowingly receive money as a bet or wager upon a horse race as it is to knowingly receive stolen goods; consequently the rules of 'procedure which apply to the indictment and its sufficiency in a prosecution for receiving stolen goods can properly be applied to a charge of becoming the custodian of money knowingly received as a bet upon a horse race.

      3.-: -: -: Against Whom Bet Was Made: Surplusage. It is wholly unnecessary that the information charging a defendant with having knowingly become the custodian of money bet on a horse race aver the name of the person against whom the party placing the money with defendant made the bet; or that the party against whom the bet was made is unknown to the prosecutor or that the horse race was to be run in a certain State; and that part of the information may be omitted as surplusage, and if without it enough remains to charge defendant with the offense denounced by the statute, it is sufficient. Under the Statute (Sec. 4749, R. S. 1909) which declares any person who becomes the custodian of any money to be bet upon a horse race shall be guilty of a felony, it is only necessary that the information state the name of the party from whom the money was received and that it was knowingly received, as a bet or wager upon a contest of speed between horses, and that the act was feloniously, unlawfully and wilfully done.
    4.-: -: When Crime is Complete. "When a defendant received money as a wager upon a horse race his crime of becoming the custodian of money bet upon a horse race was complete, regardless of whether any race thereafter actually took place.
    5. -: —-:--: -: Variance: Proof Furnished by Defendant. The proof of an allegation in the information may be furnished by defendant. Conceding, without deciding that, in the information charging defendant with receiving money to be bet on a horse race, the unnecessary allegation that the bet was made by the prosecuting witness “against a person to this affiant unknown” having been made. it was necessary to prove that the affiant and such witness did not know, that proof was furnished by the testimony of a witness for defendant who testified that defendant was a clerk in the store of his brother at the time defendant received it as a wager from the prosecuting witness and that the bet was really made with (against) such brother, and by the testimony . of the prosecuting witness that he did not report the name of the brother to the affiant (the circuit attorney).
    6. -: Form Sheets: Res Gestae. Form sheets showing races scheduled or advertised to take place at a certain city, exhibited by defendant to the prosecutor to induce him to make the bet and deposit his money, with defendant as custodian, as a wager on such race, are competent evidence; and the verbal statements made by'defendant, at the time of so exhibiting such form 'sheets, are competent as part of the res gestae. Such form sheets, so exhibited,, are not to be classed with trade 'journals and newspapers not vouched for by any party connected with the litigation.
    7. -: -: Judicial Notice: Location of Cities. The court will take judicial notice that by the word “Louisville” in the form sheets, exhibited to the prosecuting witness and therefore competent, reciting that a horse race was to take place at Louisville, was meant Louisville in the State of Kentucky. Courts take judicial notice of the location of all cities which are commercial centers and of the States in which they are located.
    ■ 8. -: Odds on Bet: Allegation: Proof. An allegation in the information that “odds” were bet upon the race did not have any tendency to identify the race nor defendant’s connection therewith, and being an unnecessary allegation, it was not necessary to prove it.
    Appeal from St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.
    Affirmed.

      John A. Gernes for appellant.
    (1) The appellant does not come within the legal or ordinary definitions of “custodian” or “depositary.” Bank v. Bank, 5 Hun (N. Y.), 605; In re Bank, 40 La. Ann. 514; People v. Burr, 41 How. Prac. (N. Y.) 293; Century Dictionary; New Encyclopedic Dictionary; Worcester’s Dictionary; (2) It was necessary in the information to allege with whom the bet was made, and an allegation that it was made with a party “to the informant unknown,” when the evidence developed .that the party was known at the time the information was drawn, is a fatal variance. State v. Miner, 233 Mo. 331; State v. Townsend, 50 Mo. App. 690; State v. Burke, 151 Mo. 144. (3) The reading of the form sheet .in evidence was error, as being an effort to prove the happening of the contest of speed by incompetent and improper testimony. Henderson v. Railroad, 126 Mo. App. 610; Cramer v. Nelson, 128 Mo. App. 393; Fountain v. Railroad, 114 Mo. App. 676.

      Elliott W. Major, Attorney-General, and Alex. Z. Patterson, Assistant Attorney-General, for the State.
    (1) The second count of the information is founded on^section 4749, R. S. 1909, and charges with certainty the elements of the offense of willfully and unlawfully becoming the custodian of a certain sum of money as. a bet and wager on the result of a horse race. State v. Villinies, 107 Mo. App. 599. It named one of the persons with whom the bet was made, named the person from whom the money was received, named the amount of the money and the day it was received, and gave the day and place where the race was to be run. This was enough to apprise appellant of the particular charge against him. (2) The racing form sheet was clearly competent evidence and admissible as tending to show the kind of trial or contest of speed and power of endurance upon the result of which the bet was made, as well as part of the res gestae.

   BROWN, P. J.

Defendant was convicted of violating section 4749, Revised Statutes 1909, by becoming the custodian of money bet and wagered upon a horse race, and appeals from a judgment of the circuit court of St. Louis city fixing his punishment at a fine of $500.

The information upon which defendant was convicted also contained a count charging him with registering a bet, but, as he was not convicted on that count, it will be disregarded on this appeal.

The evidence for the State tends to prove that William J. Breen, a police officer of the city of St. Louis detailed to the gambling squad, went into a cigar store on Pine street, in said city, on October 12, 1911, and found defendant standing behind the counter. Said policeman asked if he could make a bet on a horse race. Defendant replied in the affirmative and handed witness a “form sheet” showina a race seheduled to take place at Louisville on that day as a test of speed between eight horses. Among the number was a horse named Cherryola. Witness picked the horse Cherryola to win and gave defendant two dollars as a bet on that horse in a race to take place at Louisville on that day.

Immediately after the bet was made other officers arrested defendant and took- from him the “racing form sheet” and the two dollars. The money was marked and identified as. the currency which witness Breen had delivered to defendant as a bet that the horse Cherryola would win. Witness Breen further testified that the bet was with defendant, and that there was no discussion or understanding about whether there were any odds offered in favor of or against the horse Cherryola.

The policeman who made the arrest said to defendant: “I got you at last, I placed a bet with you. I have the goods on you.” To which remark defendant replied: “We all take chances; we all get by.. We won’t think of this two years from now.”

The “form sheet” or “racing form” found in defendant’s possession, and upon which witness Breen had made a mark opposite the name of the horse Cherryola, was introduced in evidence by the State to prove that a horse race was scheduled and advertised to take place in the State of Kentucky upon which the bet was placed.

Defendant was not sworn as a witness, but one Thomas Fitch, a clerk in the cigar store where defendant was arrested, gave evidence on behalf of defendant. His testimony, in substance, is to the effect that one Frank Cummings, a brother of defendant, was the proprietor of the cigar store; that bets made there were made with Frank Cummings; that defendant and witness Fitch were merely clerks of the said Frank Cummings, working on a salary, and not directly connected with, betting on horse races, except that they received bets or memorandum thereof when Frank Cummings, the proprietor, was absent.

For reversal defendant asserts: (1) That the evidence does not prove that he was the custodian of two dollars bet by witness Breen; (2) that as the information charges that witness Breen made a bet against a party to the circuit attorney unknown, and the evidence shows that said bet was made by Breen against defendant, there is a fatal variance between •the charge and proof; (3) that there was no competent evidence that any race between Cherryola and other horses took place on October 12, 1911, in the State of Kentucky, and that the court erred in permitting the “form sheet” or “racing form” found in defendant’s possession to be read to the jury.

I. The defendant’s learned counsel makes an ingenious argument in support of his position that the word “custodian,” as used in section 4749, Revised Statutes 1909, does not cover or embrace the act of defendant m receiving and taking into his possession money bet on a horse race. It is true that the word “custodian” is more frequently used in defining other classes of possession or control than the possession, keeping or care that a stakeholder assumes over money which is delivered to him to be kept and disbursed under the terms of a bet or wager. But in carefully considering the language which precedes and follows the word “custodian,” as it is used in section 4749, supra, we are convinced that it was the legislative' intent by the use of that word in said section to designate and embrace all persons who knowingly receive and hold money which the party or parties from whom the same is received intend shall be held pending a horse race and disbursed according to the result of such horse race.

There is also no reason why the word “custodian,” as used in said section, should not embrace any intermediate recipient or holder of money who takes the same into his possession intending to deliver it to another person to be disbursed by such other person upon the result of a horse race, provided such recipient or intermediate holder knows at the time of receiving such money that it has been wagered on the result of a horse race. This assignment is ruled against the defendant.

II. The alleged variance between the information and the evidence necessitates a consideration of the-information, which, after charging that the defendant feloniously, willfully and unlawfully became the custodian of two doljarg receive(j fr0m William J. Breen, as a bet and wager upon the result of a contest of speed between horses, known as a horse race, contained the following additional recitals: “. . . and more particularly upon the result of a trial and contest of speed and power of endurance of a certain horse known as ‘Cherryola’ with other horses, to-wit, ‘Stinger,’ ‘High Private,’ ‘Starbottle,’ ‘Carlton G-,’ ‘Mary Davis,’ ‘Rolla P. D.’ and ‘Mockler,’ contestants in said trial and contest, which said trial and contest of speed and power of endurance and the result therefrom, was to take place thereafter, to-wit, on said twelfth day of October, 1911, without the State of Missouri, to-wit, in the State of Kentucky, and which said bet and wager of the sum of two dollars was made by said William J. Breen against a person to this affiant unknown, and against a sum of money of the United States, equal to an amount to be determined by the prevailing odds of betting then laid or thereafter to be laid upon the relative speed and power of endurance of said horse ‘Cherryola’ with the other said horses in said contest of speed and power of endurance, at a race track where said trial and contest and the result thereof was thereafter, on said twelfth day of October, without this State, to-wit, in the State of Kentucky, to take place; . . .”

Just why the above quoted paragraph was inserted in this information is not apparent. That provision of section 4749, Revised Statutes 1909, prohibiting persons from becoming the custodian of money bet or to be bet on the result of a horse race is analogous to section 4554, Revised Statutes 1909, which prohibits the receiving of money or property which has been stolen or embezzled.

In furtherance of its desire to suppress book-making and pool-selling upon the result of races, the General Assembly by the express language of section 4749, supra, has visited the penalty of a felony upon all persons who knowingly aid such book-making or pool-selling by knowingly receiving into their custody money which has been bet upon a contest of speed or endurance of horses or men and which money is received or held for distribution upon the result of such races. Consequently, it is just as much a violation of the law to knowingly receive money as a bet or wager upon a horse race as it is to knowingly receive stolen or embezzled goods. The penalties are a little different, but both acts are denounced by statute and are correspondingly illegal. It follows that the rules of procedure which apply to the indictment and evidence in a prosecution for receiving stolen goods can properly be applied to a charge of knowingly becoming the custodian of money bet upon a horse race.

In the case of State v. Sakowski, 191 Mo. 635, it was held that in prosecutions for receiving stolen goods it was wholly unnecessary to charge or allege the name of the person from whom the goods were stolen, and that when an indictment averred the name of the person from whom the goods were stolen, such allegation was only surplusage and need not be proved. [See, also, State v. Brown, 209 Mo. 413.] Under the rule announced in the Sakowski case it is apparent that all that portion of the information in this case heretofore quoted is pure surplusage and could properly have been omitted without impairing its validity.

It was wholly unnecessary to recite in the information the name of the party against whom Breen made the bet; that the name of the party was unknown to' the prosecutor, or that the horse race was to be run in the State of Kentucky. When the defendant received the two dollars as a wager upon a horse race his crime of becoming the custodian of money bet upon a horse race was complete, regardless of whether any race actually took place. [20 Cyc. 888.] The allegations necessary to a valid information in this ease must be determined by section 22 of article 2 of our State Constitution and the statute creating the crime; and after a careful consideration of those laws, we are convinced that it was only necessary to state the name of the party from whom the money was received, and that it was knowingly received as a bet or wager upon a contest of speed between horses, coupled, of course, with the usual averment that the act was feloniously, wilfully and unlawfully done.

We are aware of the rule that when an indictment or information describes the acts which constitute an offense with unnecessary detail it sometimes becomes necessary to prove the crime with the same particularity with which it is charged. [See State v. Samuels, 144 Mo. 68.] The spirits of the Sakowski and Samuels cases do not seem to be in complete accord. We have no quarrel with the Samuels case, but do not think the doctrine of that case can be extended or expanded so as to require proof of all the allegations of the information in this case.

However, if it be conceded that by inserting in the information in the case at bar the allegation that the bet of which defendant became the custodian was made by witness Breen against a party unknown to the assistant circuit attorney, it thereby became necessary to prove that said prosecutor did not know against whom the bet was made, that concession will not help the defendant in this appeal. Defendant’s contention is that witness Breen made his report to the assistant circuit attorney in regard to placing a bet with defendant; ^consequently, it was the duty of said prosecutor to charge in the information that the bet was made by Breen against the defendant. And that inasmuch as Breen testified that he made the bet with (against) defendant, there is a fatal variance between the information and the evidence.

This point would be worthy of serious consideration if defendant had stood upon his demurrer offered at the close of the State’s evidence in chief. However, he declined to stand upon that demurrer and introduced witness Fitch who testified in effect that defendant was a mere clerk in the cigar store of his brother Frank Cummings, and that bets received there were for said Frank Cummings; consequently, it was made reasonably clear by said witness that the bet was really made with said Frank Cummings, and it appearing that Breen did not report the name of Frank Cummings to the circuit attorney as being concerned in the betting, it is made reasonably clear that the prosecutor did not know against whom the bet by Breen was made at the time the information was filed. In other words, the defendant introduced substantial evidence to support the allegation of an unknown bettor, and thereby destroyed his plea of a variance as to the names of the bettors.

When a defendant doe's not stand upon his demurrer to the plaintiff’s evidence, but afterwards introduces evidence on his own -behalf,' and again demurs at the close of all the evidence, his first demurrer will be deemed waived and his last demurrer will be considered with reference to all the evidence in the case. [Klockenbrink v. Railroad, 172 Mo. 678; Foust v. Lee, 138 Mo. App. 722.] The defendant’s assignment of a variance between the charge and proof must be ruled against him.

III. The defendant most earnestly insists that the racing form sheet shown by defendant to witness Breen at the time the bet was made was not competent to establish the fact that a horse race oceurred in the State of Kentucky on Octop2, 1911; and that if said form sheet had been excluded there would be no proof that any race ever took place in Kentucky. In support of this contention defendant cites the case of Henderson v. Wabash Railroad Co., 126 Mo. App. 610, and other authorities which hold that newspapers and trade journals are not competent to prove the price of commodities on the dates when said papers or journals were published. The above authorities do not support defendant’s contention.

The accuracy of items published in newspapers and trade journals usually not vouched for by any party connected with the litigation in which they are offered, while the form sheets showing races scheduled or advertised to take place at Louisville were used by defendant to induce Breen to make the bet and deposit his money with defendant. Verbal statements by a defendant made at the very time he is engaged in the commission of a crime, if against his interest, are always admissible as part of the res gestae. [Wharton, Criminal Evidence (10 Ed.), sec. 262.] There is no sound reason why printed or written representations so made and explanatory of-defendant’s criminal acts should not likewise be admitted against him.

In the ease of People v. McCue, 83 N. Y. Supp. 1088, l. c. 1090, the Appellate Division of the Supreme Court* of New York in construing a statute similar to section 4749, Revised Statutes 1909 announced the following doctrine: ‘‘ The (court had previously charged the jury, at the defendant’s request, that it was incumbent upon the- prosecution to prove beyond a reasonable doubt that horse races were actually taking place on December 21, 1901, at New Orleans and in California, and the defendant’s representation to that effect made upon the score cards must be regarded, under the circumstances, and for the purpose of this case, as sufficient proof of the fact of the races, assuming that it'was necessary to prove the fact as an essential ingredient of the crime.”

To the same effect is the ruling of the St. Louis Court of Appeals in State v. Townsend, 50 Mo. App. 690, l. c. 698. We do not feel called upon to condemn or approve the views expressed in those cases, as it was not necessary in this case to prove that a race actually took place in the State of Kentucky. The information does not charge that a horse race did occur in the State of Kentucky on the 12th day of October, 1911; it only charges in effect that a race was to take place in Kentucky on that date, a fact disclosed by the very form sheet used by defendant when he pointed out to witness Breen how to make the bet.

We are unable to see how any substantial right of defendant was invaded by compelling him to meet the very documentary evidence which he used in committing the crime of which he was convicted. To hold that the racing form sheet was not competent to establish the fact that a horse race was scheduled or advertised to take place in Kentucky upon which the witness Breen made his bet, would be almost as illogical-as to hold that a deadly weapon used in committing an assault is not competent evidence against the party who used such weapon in committing the assault. •

Defendant further contends that even if the form sheet showing races to take place at Louisville is competent evidence it fails to prove that a horse race took place or was understood by witness Breen and defendant to take place in tbe State of Kentucky as charged in- the information; that the name “Louisville” in thb form sheet might' have referred to Louisville, Missouri, or a town or city of that name in some other State. This contention is unsound.

Courts take judicial notice of the location of all cities which are commercial centers and of the states where they are located. Louisville is the principal commercial center bearing that name in the United States, a fact so well known that when used without other designation any man in St. Louis with average intelligence knows that one of the chief cities in Kentucky is thereby named. “A State court will take judicial notice of . . . the location of .cities outside, the State, at least if they are well-known commercial centers.” [16 Cyc. 858.] To the same effect is the case of Parks v. Jacob Dold Packing Co., 6 N. Y. Misc. 570, l. c. 574.

In the early cases of Ober v. Pratte, 1 Mo. 58, and Riggin v. Collier, 6 Mo. 568, l. c. 572, the doctrine is announced that the courts of this State cannot take judicial cognizance of places outside of its limits. However, it is evident that the courts of all the States are evolving towards a more logical construction of the law of judicial notice. In the subsequent case of Price v. Page, 24 Mo. 65, l. c. 67, this court took judicial notice of the fact that the State of Missouri was located east of the Rocky Mountains, and that it was the duty of the courts to judicially know the geographical position of places of well-known public notoriety. .

A court which would solemnly decree that it cannot judicially know facts which are well known to all its constituents would thereby furnish substantial reason for its own recall.

Defendant’s resourceful attorney also contends that, as the information contained a recital that certain “odds” were het upon the horse Cherryola, it became necessary for the State to proye said allegation. The allegation that odds were bet upon the race did not have any tendency to prove the identity of the race nor defendant’s criminal connection therewith ; consequently, no proof was required on that unnecessary allegation. [Wharton, Criminal Evidence (10 Ed.), sec. 138, p. 363.]

Finding no reversible error in the record the judgment of the trial court is affirmed.

Faris and Walker, JJ., concur.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    THE STATE v. EDWARD A. HILTON, Appellant.
    Division Two,
    March 12, 1913.
    1. POLICY: Information: In Language of the Statute. An Information charging that defendant unlawfully and feloniously “did aid and assist in making and establishing a ‘policy’ as a business and avocation” sufficiently apprised defendant of the nature and cause of accusation against him. It is in the language of the statute’, and that makes it sufficient.
    2. -: -: -: Constitutional Statute. Nor is said statute unconstitutional as permitting defendant to be prosecuted without being apprised of the nature and causé of accusation against him. The word “policy” as used in the statute has a well understood meaning as a method of gambling by betting on numbers used in a lottery; and though the statute simply declares that it shall be a felony to aid or assist in the making or establishing of a policy as a business or avocation, an information in the language of the statute sufficiently informs defendant of the nature and cause of the accusation.
    3. TESTIMONY: Of Facts Subsequent to Offense Charged: Motion to Strike Out. A motion to strike out the entire testimony of a witness who has testified to kindred offenses committed by defendant both before and after the date charged in the information, should be overruled. The motion should include only the testimony as to the acts subsequent to that date; especially where the trial court, before the motion was made, had ruled that the testimony as .to ¡the subsequent acts bp stricken out, and directed that the proof he limited to acts before that date.
    4. -: In Rebuttal. Testimony in rebuttal, offered to contradict testimony introduced by defendant, though it relate largely to immaterial matters, is not prejudicial error.
    5. POLICY: Instruction: Definition. The use of the words “scheme of lottery” or “scheme of drawing in the nature of a lottery,” as a definition of “policy,” does not render the instruction bad — especially where the evidence discloses- that "policy” was a scheme of lottery, as well as a scheme of drawing in the nature of a lottery.
    6. -: -: Circumstantial Evidence. The making and establishing of a “policy” may be established by circumstantial evidence alone, and the court may so instruct.
    7. REMARKS OF CIRCUIT ATTORNEY: Prevalence of Crime. Where the prevalence of a crime is shown and there is other ample evidence of defendant’s guilt, an appeal by the circuit attorney to the 'jury for a conviction on account of such prevalence is not unauthorized.
    Appeal from St. Louis City Circuit Court. — Hon. George G. Hitchcock, Judge.
    Affirmed.

      Willis H. Clark for appellant.
    (1) The second count of tbe information did not sufficiently individuate the offense so as to apprise appellant of the nature aftid cause of the accusation or afford a basis for a plea of res adjudícala. Constitution of Missouri, art. 2, sec. 22; 22 Cyc. 340; State v. Wilber sou, 170 Mo. 189; State v. Cronin, 189 Mo. 663; State v. Crooker, 95 Mo. 389; State v. Rocheford, 52 Mo. 199; State v. Terry, 109 Mo. 601; State v. Stowe, 132 Mo. 199; State v. Pickett, 174 Mo. 663; State v. Wade, 147 Mo. 73; State v. Krueger, 134 Mo. 262; State v. Keating, 202 Mo. 197; State v. Burke, 151 Mo. 136; State v. Murphy, 141 Mo. 267. (2) The testimony of the witness Frank Brown should have been excluded and the motion of appellant to strike it out and direct the jury to disregard it should have been granted. State v. Spray, 174 Mo. 569; State v. Parker, 96 Mo. 382; State v. Reed, 85 Mo. 194; State v. Turner, 76 Mo. 350; State v. Reavis, 71 Mo. 419; State v. Jackson, 95 Mo. 623; State v. Wilkerson, 170 Mo. 189; State v. Cronin, 189 Mo. 663; State v. Pruitt, 202 Mo. 49; State v. Bateman, 198 Mo. 212; State v. Minor, 193 Mo. 597; State v. Todd, 194 Mo. 377; State v. Spivey, 191 Mo. 87. (3) The testimony of officer Wells in rebuttal was upon immaterial and irrelevant subjects and it was not competent' for any purpose. State v. Walsh, 203 Mo. 605; State v. Kelleher, 201 Mo. 614; State v. Foley, 144 Mo. 600; State v. Forshee, 199 Mo. 142; State v. Myers, 198 Mo. 225; State v. Grant, 144 Mo. 56. (4) The portions of the closing argument to the jury of prosecutor Griffin objected to by appellant were improper-and unfair and n<?t based upon the admitted evidence and contained an intimation to the jury that evidence against appellant existed other than that produced. State v. James, 216 Mo. 394; State v. Spivey, 191 Mo. 87; State v. Woodward, 191 Mo. 617; State v. Kennedy, 177 Mo. 98; State v. Shipley, 174 Mo. 512; State v. Hudspeth, 159 Mo. 178; State v. Ferguson, 152 Mo. 92. (5) The statute upon which this prosecution is founded is unconstitutional and void. R. S. 1909, sec. 4770; Const, of Mo., art. 21, secs. 4, 10, 22, 30, 31, 53, art. 4, sec. 53; U. S. Const., Amend. 14, sec. 1; State v. Walsh, 136 Mo. 400; State v. Julow, 129 Mo. 163; State ex rel. v. Herrmann, 76 Mo. 340. (6) The first instruction is broader than the charge contained in the second count of the information, upon which the conviction-is based, is misleading and confusing, is erroneous in its application to the law and the facts, and constitutes a comment upon the evidence and an argument to the jury.

      Elliott W. Major, Attorney-General, and Alecc. Z. Patterson, Assistant Attorney-General, for the State.
    (1) Indictments, of which this information is a rescript, have been approved in State v. Wilkerson. 170 Mo. 190; State v. Cronin, 189 Mo. 669, and State v. Miller, 190 Mo. 1. c. 459. The power of the State to prohibit lotteries and the various transactions connected with them, in the interest of public morals, is a recognized branch of the police power; and statutes directed to that end are universally recognized as constitutional. 25 Cyc. 1641. Legislative enactments prohibiting the sale of tickets- in any scheme in the nature of a lottery are expressly authorized by the Missouri Constitution, art. 15, sec. 10. (2) The first portion of instruction 1, which is simply introductory, is correct. State v. Williams, 136 Mo. 293. Subdivision one is a correct statement of the law applicable to joint offenders. Subdivisions two and three on essential elements of the offense necessary to be proved, are proper and designate the material allegations of the information which the State must prove. That part of subdivision three in relation to circumstantial evidence has been approved. State v. Turner, 106 Mo. 272. (3) Frank Brown was called as a witness for the State, but he was a most unwilling witness. The court ruled that his testimony as to matters subsequent to May 19th be stricken out. Then, on recross-examination and redirect examination witness gave contradictory testimony as to whether the matters testified to by him in chief were before or after May 19th. But the record shows that the witness stated that he had received plays for appellant and turned the money over to appellant and that these dealings occurred prior to May 19th and within two or three years of the trial. This evidence was competent and the court committed no error in refusing to strike out all the testimony of Brown. (4) It has been held that this court will not review the discretion of the trial judge to control the argument of counsel, unless such discretion has been clearly abused, and the rights of the •accused were actually prejudiced. State v. Hamilton, 55 Mo. 520. Courts- are loath to reverse judgments on account of improper remarks of attorneys — especially as in this case, where the proof of guilt is clear. In such cases, the verdict of guilty would likely have been returned, regardless of the improper remarks. State v. Hess, 240 Mo. 147; State v. Dietz, 235 Mo. 332; State v. Harvey, 214 Mo. 403; State v. Church, 199 Mo. 605; State v. Hibler, 149 Mo. 478; Státe v. Summar, 143 Mo. 220; State v. Dusenberry, 112 Mo. 277; R. S. 1909, sec. 5115.
   WALKER, J.

This is an appeal from one of the criminal divisions of the circuit court of the city of St. Louis. The information authorizing the prosecution was in two counts under section 4770, Revised Statutes 1909; the first count charged defendant and one Sylvester Scharpiat with making and establishing “a policy” as a business and avocation, and the second count with aiding and assisting in making and establishing “a policy” as a business and avocation.

As the sufficiency of the indictment is challenged, we set it forth in full, omitting the caption and signature: .

“II. A. Rosskopf, Assistant Circuit Attorney in and for the city of St. Louis, aforesaid, within and for the body of the city of St. Louis, on behalf of the State of Missouri, upon his official oath, information makes as follows:
“That Edward A. Hilton and Sylvester Scharpiat on the 19th day of May in the year of our Lord, one thousand nine hundred and ten, at the city of St. Louis aforesaid, unlawfully and feloniously did make and establish a ‘policy’ as a business and avocation in the State of Missouri, against the peace and dignity of the State.
“And H. A. Rosskopf, Assistant Circuit Attorney, in and for the city of St. Louis, as aforesaid, within and for the body of the city of St. Louis, on behalf of the State of Missouri, upon his official oath aforesaid, further information makes as follows:
“That Edward A. Hilton and Sylvester Scharpiat, in the city of St. Louis, on the nineteenth day of May, 1910, unlawfully and feloniously did aid and assist in making and establishing a ‘policy’ as a business and avocation, in the State of Missouri, contrary to the form of the statute in such case made and provided, and against' the peace and dignity of the State.”

Defendants were arraigned and pleaded not guilty. A severance was granted to Scharpiat and the State elected to try the defendant Hilton first. There was a trial of defendant before a jury. At the close of all the testimony the State elected to proceed upon the second count of the information and the court withdrew from the consideration of the jury all matters relating to the first count. Thereupon defendant asked the court to give a peremptory instruction in the nature of a demurrer to the evidence, which was refused. Instructions were given (1) defining the offense and prescribing the punishment; (2) the weight to be given circumstantial evidence as affecting guilt; (3) the probative force of defendant’s statements; (4) that defendant was a competent witness in his own behalf; (5) that the information was not to be considered as evidence; (6) the presumption of innocence; (7) defining a reasonable doubt; (8) that the jury were the sole judges of the credibility and weight to be given the testimony; and (9) that the verdict must be based on the evidence and not upon arguments of counsel.

After the arguments of counsel, the jury returned a verdict of guilty as charged in the second count of the information and assessed defendant’s punishment at three years’ imprisonment in the penitentiary.

Ineffectual motions for a new trial and in arrest were filed, and overruled, and an appeal was perfected to this court.

Judgment was rendered in accordance with the verdict.

. Upon defendant’s executing a bail bond approved by the trial court, a stay of execution was granted pending the appeal.

These facts are disclosed by the testimony:

On the 19th day of May, 1910, the date alleged in the information, three police officers named Wells, Stephenson and White, who had been detailed to look after gambling and were designated on the force as the 4 4 Gambling Squad, ’ ’ went to a room in the rear of a shoemaker’s shop at 922 Sidney street in that city, in the discharge of their special duty. Wells and White went to a window of the rear room, and saw defendant and Scharpiat sitting at a table marking in policy books. Stephenson went through the shoemaker’s shop and entering the rear room seized defendant with one hand and Scharpiat with the other, and pulled them away from the table, holding them until the other two officers ran around and entered the room, and defendant and Scharpiat were placed under arrest. Paraphernalia consisting of wall sheets, policy books with pencil markings on them, tickets and drawings were found on the table and in other parts of the room, and a small amount of money was lying on the table. All of these things- were taken possession of by the officers.

Officer Wells says when he entered the room he recognized defendant, whom he had known for three years, and said to him: 44This is pretty good, here you are again; I thought you had enough of this business;” to which defendant replied that 4 4 he was out of work and had to do something.” Wells then inquired how long defendant had been at that business, and the latter replied.: 44I havfe only been doing it two or three months.”

Officer Stephenson’s statement as to this conversation is slightly different, but to the same effect. Stephenson says "Wells said to defendant: “Ed, yon are at it again; yon know yon haven’t been out of the workhouse very long.” To which defendant replied: “I have been sick all winter and I have only been writing policy for about three months. I had to do something.”

A- somewhat more general account of the conversation is given by White, the other officer.

All of the officers state that when asked his residence, at the police station, defendant stated it was 922 Sidney street, that he was renting the room where he had been arrested.

Upon officers Wells and Stephenson being qualified as experts by showing their familiarity with “policy,” the paraphernalia which had beón seized in the room was produced in court and the officers each explained how such sheets, policy books, tickets and drawings were used in that character of game or lottery. Each testified that the books taken out of defendant’s and Scharpiat’s hands at the time of their arrest were policy books and that defendant at the time was making figures in such a book.

The burden of the testimony for the defense was to show that the room in which the defendant was found, was used for other purposes than as a policy shop; that it was headquarters for a number of persons in the neighborhood to engage in social games of cards and to meet and drink beer. It was also attempted to discredit the testimony of the officers in regard to their ability to see what defendant and Scharpiat were doing in the room as the officers stood at the window — witnesses for the defense testifying it was not possible to see through the lace curtain which bung over the window.

Defendant and Scharpiat directly contradicted the testimony of the'officers as to officer Wells’ conversation with defendant or as to any admission having been made by tbe latter at tbe time of bis arrest, or that be and Scbarpiat were engaged in marking in policy books, and insisted that tbeir meeting was a casual one and they knew nothing about tbe paraphernalia shown to have been found in tbe room, and were not marking in policy books, and were in no way connected with a policy game or lottery. Tbe defendant bad previously been convicted and bad served a term in tbe workhouse for a like crime to that charged in tbe information.

Other testimony complained of by defendant will be discussed in its order in tbe opinion.

I. Defendant complains of tbe information, first, that it does not sufficiently apprise him of tbe nature and cause of tbe accusation, and second, that it does not afford a basis for a plea of res adjudicata.

A familiar rule of criminal pleading is that where a statute specifically defines an offense, an indictment or information thereunder is sufficient which properly follows tbe language of tbe statute. [Whar. Cr. Pl. & Pr. (9 Ed.), sec. 220.]

Tbe information in this case was based on section 4770, Revised Statutes 1909, which declares it a felony to make or establish or aid or assist *n ma^nS’ or establishing of a policy as a business or avocation. Tbe information followed tbe exact language of tbe statute. Tbe word “policy” as used in tbe'statute has a well-understood meaning as a method of gambling by betting on numbers to be used in a lottery; and it was unnecessary to define tbe word or allege tbe manner in which defendant aided or assisted in tbe making or establishing of tbe lottery. In conformity with tbe rule as applied to this particular case, this court has, in a number of well-considered cases, held indictments in tbe identical words here used, sufficient to apprise defendants of the nature and cause of the accusation and to authorize them to plead former convictions as a bar when prosecuted for the same offenses. [State v. Wilkerson, 170 Mo. 184, 192; State v. Cronin, 189 Mo. 663, 669; State v. Miller, 190 Mo. 449, 459.]

As an additional reason in support of defendant’s first contention, he urges that ,the. statute (section 4770, supra) is unconstitutional. As we have shown, the statute clearly defined the offense and the information was drawn in conformity therewith. Defendant was, therefore, fully informed as to “the nature and cause o'f the accusation, ’ ’ and the provision of the Bill of Rights claimed to have been violated (Constitution, article 2, section 22) was fully complied with.

Further discussion, therefore, as to the sufficiency of the information and the validity of the statute on which it is based, will serve no- useful purpose, as it would be but the threshing of old straw from which» no grain of valid objection can be winnowed.

We, therefore, rule this point against the defendant.

II. The contention is made that the trial court erred in overruling a motion, made by defendant, to strike out the entire testimony of a witness for the State named Frank Brown. The ground for this contention is.that the witness -had, over defendant’s objection, testified to having made policy plays with and disposed of policy tickets for defendant .before and after May 19th, the date alleged in the information. It is apparent from the record that the witness gave his testimony reluctantly, his answers to the simplest questions being oftentimes wholly irresponsive. Early in his examination the court ruled that his testimony as to transactions after May 19th be stricken out, and limited the State to proof of matters before that date. This ruling clearly informed the jury that they were only to consider evidence of prior matters in the making up of their verdict; they could not have been misled by the testimony, and defendant was, therefore, not injured.

A motion to strike out should not be leveled at the entire testimony of a witness unless it is wholly inadmissible. After timely objections have proved ineffectual, it is not improper at the close of a witness’s testimony to move to strike out the objectionable por: tions of same, so 'designating them that the court may be enabled to determine the extent and purpose of the motion and to rule intelligently thereon. This was not done here. The motion was too broad, and we rule this contention against the defendant. [State v. Skibiski, 245 Mo. 459; Pressley v. State, 111 Ala. 34; Snideman v. Snideman, 118 Ind. 162; People v. Stanley, 101 Mich. 93.]

III. The admission of the testimony of officer Wells in rebuttal is alleged as error. A careful examination of this testimony fails to disclose in what manner it could have proved prejudicial to the defendant. While mainly in regard to immaterial matters, it was offered to contradict testimony which had been introduced by the defendant, and he will not be heard to complain. [State v. Moss, 216 Mo. 436, 444; State v. Baldwin, 214 Mo. 290.]

IY. The giving of the first instruction is assigned as error; the ground therefor being that it is broader than the charge in the information and is, therefore, misleading;‘that it erroneously applies the law to the facts and is a comment upon the evidence and an argument to the jury.

This contention seems formidable on its face, but its force is due to its phrasing and not to defects in the instruction. Similar instructions in all essential features were given in prosecutions for like offenses in the cases cited under the first paragraph of this opinion and were approved by this court.

Defendant’s specific objection is the use of the words “or scheme of lottery” after the word “policy” in one part of the instruction, and in the use of the words “or scheme of drawing in the nature of a lottery” after the word “policy” in another part of the instruction. The testimony clearly disclosed that “policy” was a scheme of lottery, as well as a scheme of drawing in the nature of a lottery, and the well-established meaning of the word in criminal law gives it no other signification. [State v. Harmon, 60 Mo. App. 48; State v. Wilkerson, 170 Mo. 184.] The words objected to were, therefore, nothing more than definitions and their use tended to enlighten rather than mislead the jury.

V. There was no error in the court instructing the jury that circumstantial evidence alone was sufficient to establish the making or estabfishing of the policy or scheme of drawing which defendant was charged with aiding and assisting, following this with the usual in- ' struction in regard to the- manner in which circumstantial evidence was to be considered. [State v. Williams, 44 Mo. App. 302.] A well-connected chain of circumstances showed the establishment of a policy or scheme of drawing and the instruction defining the probative force of circumstantial evidence was therefore not improper. Defendant’s admission coupled with his possession of the instruments of the crime and his actual participation in an effort to aid and assist in same at the time of his arrest, afforded ample direct evidence to sustain the verdict.

VI. The defendant complains of the remarks of counsel for the State in his closing argument to the jury in Ms saying: “I am prosecuting a erime which counsel for defendant, in Ms questions, has shown to be unusually prevalent in this city, a crime which can only be stamped out by an appropriate punishment of defendant, and even then it cannot always be stamped out, as the evidence in this case shows; the men who commit this kind of crime are so disregardful and unmindful of the laws of the State.” And to the further remark by the prosecutor: “I submit, gentlemen, in regard to this curtain there is no way that I could tell what the defense was going to be, that the curtain was old and dirty and that you could not see through it; and I had no idea yesterday that that was their defense in this case. I understood that the officers could see through that curtain or I would have made some effort to bring it into court.”

The first remark was in effect an appeal for conviction on account of the prevalence of the crime charged.

While it is true as insisted by the defendant that “criminal cases should be determined by the evidence adduced and the law as defined in the in-sanctions,” where the prevalence of a crime is shown and there is other ample evidence of defendant’s guilt, an appeal by the prosecutor to the jury for a conviction on account of such prevalence is not unauthorized. Such an appeal couched in far more objectionable words than in the case at bar was approved by this court in State v. Zumbunson, 86 Mo. 111. This case has been cited with approval in State v. Rasco, 239 Mo. 535, 581, where other cases of this court announcing a like rule will be found compiled.

The second' remark complained of could not by reasonable construction have improperly influenced the jury. If the remark had any influence it was in the defendant’s favor rather than against him. Witnesses f0r defendant had testified that they conld not see through the curtain; the failure of the State to bring the curtain into court authorized the presumption that it could not refute ,the testimony of these witnesses. However, the contention of the defendant in this regard is not worthy of serious consideration; there was ample evidence of the defendant’s guilt, regardless of whether the curtain could be seen through or not; he was caught in the commission of the act charged, with the physical evidences of the crime in his hands and all around him. We, therefore, rule this contention against the defendant.

Finding no error in the record, the judgment is affirmed and the sentence which the law pronounces is ordered to be executed.

Brown, P. J., and Faris, J concur.


text:
    THE STATE v. JULIUS A. GERHARDT, Appellant.
    Division Two,
    March 12, 1913.
    1. FALSE PRETENSE: Information: Several Charges: Proof. Where several false pretenses are jointly charged in the information, it is only necessary to prove that one of said pretenses was in fact untrue. In such case the unproven charge will he treated as surplusage, and need not be submitted to the jury; and if the information contains another charge properly alleged and properly submitted, and it is proven, the conviction will stand.
    2. -: Limitations. False representations which result in a crime should be treated as having been made at the time their victim delivered his money or property to the party making them. It is.only when the misrepresentations bear fruit by causing some one to part with money or property that the statute is violated. Where defendant delivered to Akerman a note dated May 6, 1908, and payable to his order, and reciting that the maker had deposited or pledged with said “Akerman as collateral security for the payment of this note, deed of trust for $4000, dated April 14th, 1908,” on certain real estate, and there is no evidence that Akerman ever saw the note until May 14, 1908, when it was delivered to him, an information filed on May 9, 1911, is not barred by limitations. Although the note, dated May 6, 1908, bore a false recital that the deed of trust “had been pledged to said Akerman,” and that false recital may have aided in deceiving him, yet the' crime dates from the day the note was actually seen by and delivered to Akerman, which was May 14, 1908' — the facts being that the note was of no value, and on a promise to deliver to him a note for $4000 secured by a deed of trust on valuable real estate Akerman parted with $4000 to defendant or his associate in business.
    3.---: Conflict in Evidence. The issue of defendant’s guilt of the charge of false pretense, where the evidence of the State makes out a clear prima-facie case, and that for defendant indicates that he is not guilty of any wrongdoing, was for the jury, who looked into the faces of the witnesses and were in a far better position to judge of the truthfulness of their statements than are the judges of the appellate court.
    Appeal from St. Louis City Circuit Court. — Eon. Wilson A. Taylor, Judge.
    Affirmed.

      Charles J. Maurer for appellant.
    (1) The indictment is fatally defective. (2) The prosecution was not begun within the time required by law. (3) The trial court should have instructed the jury to acquit the defendant.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) (a) The information is sufficient. Laws 1911, pp. 194, 195; State v. Beaucleigh, 92 Mo. 490; State v. Williams, 77'Mo. 310; State v. Porter, 75 Mo. 171; State v. Williams, 12 Mo. App. 415; State v. Mc-Nerney, 118 Mo. App. 60. (b) The information sufficiently' identified the name of the victim. State v. McChesney, 90 Mo. 120. And meets the objection contained in: State v. Pickett, 174 Mo. 663; State v. Hesseltine, 130 Mo. 468; State v. Clay, 100 Mo. 578; State v. Terry, 109 Mo. 601; State v. Janson, 80 Mo. 97. (c) Tlie test is whether or not the defendant could plead in bar the judgment rendered against him, be it either a conviction or acquittal. State v. "Woodward, 156 Mo. 147. All the elements necessary to charge the crime are laid in this information, and the constitutional provision is complied with. Constitution, article 2, section 22; State v. Vorback, 66 Mo. 168. (d) The charge must contain a certain description of the crime of which the defendant is accused, and a statement of facts by which it is constituted, so as to identify the accusation lest the grand jury should file the bill for one offense, and the defendant be put upon his trial for another without any authority. 1 Chitty’s Crim. Law, 169; State v. Murphy, 140 Mo. 267; U. S. v. Cruikshank, 1 Woods (IT. S.) 308; State v. Boyne, 88 Mo. 604; Bosen v. IT. S., 161 U. S. 40. (2) The sufficiency of the evidence is for the jury. State v. Tetrick, 199 Mo. 100; State v. Mathews, 202 Mo. 147; State v. McCullough, 171 Mo. 574; State v. Williams, 199 Mo. 137.
   BROWN, P. J.

Defendant was convicted under an information charging him with obtaining property from one Louis Ackermann by false pretenses, as prohibited by section 4565, Revised Statutes 1909, amended by Laws 1911, p. 195, and appeals from a judgment of the circuit court of St. Louis City fixing his punishment at two and one-half years in the penitentiary. .

On the part of the State there is substantial evidence that defendant and one Conrad Kraft were officing together in the city of St. Louis in the month of May, 1908, when a notice, emanating from their office and advertising for sale a $4000 note secured by a deed of trust on property at No. 4939, St. Louis avenue, attracted the attention of one Louis Ackermann, who states that defendant sent him the advertisement. It does not clearly appear whose name was signed to the advertisement.

Ackermann’s evidence indicates that he was either so mentally stupid or so ignorant of business affairs that he did not know a note or deed of trust when he saw such documents. While his evidence is clumsy and, in some places, indefinite, he evinces no inclination to exaggerate or swear falsely. He (Ackermann) possessed $4000 which he desired to loan upon real estate security and called at the office of defendant and Kraft about May 11, 1908, to arrange for the purchase of the note and deed of trust above mentioned.

The note secured by the deed of trust was dated April 14, 1908, and payable three years after date, while Ackermann only desired to loan his money for one year, so that no deal was made when Ackermann called on defendant the first time. On May 14, 1908, Ackermann called at defendant’s office a second time to see what could be done about purchasing the above-mentioned secured note. Kraft was absent and defendant Gerhardt went with Ackermann to the Mercantile Trust Company, where he took from a safety deposit box and delivered to Ackermann a title guaranty certificate and an insurance policy, both of which contained a description of the property situated at-No. 4939, St. Louis avenue. Mr. Ackermann further testifies that defendant on the same day and while at the Mercantile Trust Company’s office wrote and delivered to Ackermann the following receipt:

Received of Louis Ackermann $4000 for D. T. at 4939, St. Louis. Ave., Lot 13, Blk. 5260. Date 14, 1908.
Kraet-Gerhardt Realty Co.
Per J. A. Gerhardt.

Pie also at the same time delivered to Ackermann the following promissory note:

St. Louis, Mo., May 6th, 1908.
$4000.00.
One year after date we promise to pay to Louis Ackermann, four thousand . . . dollars, for value received, with interest after date at the rate of six per cent, per annum, we having deposited or pledged with said Louis Ackermann as collateral security for the payment of this note, deed of trust for $4000, dated April 14th, 1908, on property No. 4939 St. Louis Avenue, St. Louis, Missouri.
Conrad Kraft, Jr. Realty Company,
Per Conead Keaft, Jé.

Why the note above copied was dated five days before the negotiations for the loan were begun does not appear. It is most probable that the negotiations were begun on May 6,1908, instead of May 11th of that year. The note, as will be seen, was executed by Kraft, while the receipt is signed by defendant Gerhardt in the name of the Kraft-Gerhardt Realty Co.

While at the Mercantile Trust Company’s office Ackermann seemed to have some fear that he was not getting all the papers that he ought to have, and said to defendant: “I don’t really want this loan unless you can get this deed of trust on this money;” to which defendant replied: “That will be all right.” This reply seemed to remove the doubt resting in Ackermann’s mind and he thereupon caused the treasurer of the trust company to make out and deliver to defendant a check for $4000 payable to the Kraft-Gerhardt Realty Company. Ackermann testifies that defendant suggested that the check be made payable to the Kraft-Gerhardt Realty Company. Ackermann then took the four papers given him by defendant and went home.

According to Ackermann’s evidence Kraft was not at his office either the first or second time he called, and defendant alone went with him to the Mercantile Trust Company to get the papers and close the deal. If Ackermann’s version of the transaction is correct he parted with his $4000 before he ever met Kraft.

About fifteen days later Ackermann again called on defendant, when, as he describes it, he “was trying tb find out really if there was anything like a deed of trust to be had or to-be seen.” Asked what explanation defendant gave, Ackermann replied: “ Well, he plugged the thing again, and says, ‘ That will be all right. ’ ”

Mrs. W. Et. Wende, the sister of Ackermann, interested herself in the transaction a short time after the defendant received the check for $4000, and calling-on defendant demanded to know: “What kind of business is he doing with Louie, that he did not give him the right papers that he buys, and he said we are all right.” She called a second time and was again assured by defendant, as she says “that he would give it to Louie and that he was going to fix everything- all right.” Ackermann never did receive the note and deed of trust which he attempted to purchase from defendant, but admits that several months later Kraft paid him sixty dollars interest and defendant paid him three dollars.

Ackermann kept dunning the defendant for the $4000 at frequent intervals until December, 1908, when Kraft, Gerhardt and one Truchon organized a $10,000 corporation, styled the Kraft-Gerhardt Realty Company. The shares of this company were $100 each “actually paid up,” but the only assets, if any, put into the corporation, was a small piece of vacant land owned by Kraft, the value of which is not shown, and there is nothing in the record to indicate that it possessed substantial value-. Defendant subscribed for sixty-nine shares of the new company’s stock; Kraft for thirty shares and Truchon for one share. Defendant transferred to Ackermann forty of his shares, taking his receipt therefor which reads as follows:

Kraft-Gerhardt Realty Co.,
St. Louis, Mo., Jan. 7, 1909.
Received of Julius A. Gerhardt certificate number five for forty shares of the capital stock of Kraft-Gerhardt Realty Company of the par value of $100 each, in consideration of which I hereby assign, sell and transfer to said Julius A. Gerhardt, all my right, title and interest in and to a certain promissory note, dated on or about May 14th, 1908, executed by the Conrad-Kraft Jr. Eealty Company, for the sum of four thousand dollars; also any collateral deposited as security with said note. Also received the sum of one hundred and sixty dollars cash, in full of accrued interest on said note to date. I hereby certify that said note and collateral cannot now be produced and that the same is not in the hands of any person or persons legally entitled to the same.
Mr. Louie Ackekmann.

The defendant testifying in his own behalf, states that while he offieed with Kraft in May, 1911, he was not in.partnership with the latter at that time; that Kraft secured building loans on property which defendant constructed. That there was no community of interest between him and Kraft on May 14th, when defendant gave Ackermann the receipt for the $4000 check in the name of the Kraft-Gerhardt Realty Company, as before recited. Further testifying defendant states that he had no interest in or connection with the $4000 note and deed of trust which Ackermann attempted to purchase. That Ackermann came to the joint office of Kraft and Gerhardt on May 14, 1911, with a Mercantile Trust Company check payable to the Kraft-Gerhardt Realty Company for $4000 while Kraft was absent; and that Ackermann being in a hurry to return to his work defendant gave him the receipt for the check introduced in evidence. That Kraft came into the office while Ackermann was still there and defendant gave the check to Kraft in Ackermann’s. presence; whereupon Kraft went with Ackermann to the bank to get the note and deed of trust. That defendant never gave Ackermann any other papers than the receipt and did not know until several weeks afterwards that Ackermann had not received the note and deed of trust which defendant supposed Ackermann was buying from Kraft. That he (defendant) asked Kraft why he did not deliver the note and deed of trust to Ackermann and received a reply that it was none of his business. Defendant further testifying states that Kraft became indebted to him in the sum of $2900, and that he took stock in the Kraft-G-erhardt Realty Company solely because he saw no other way of collecting what Kraft owed him. That the organization of the Kraft-G-erhardt Realty Company was not under contemplation in May, 1908, when the alleged crime was committed. That he (Gerhardt) subscribed for the forty shares of stock which were afterwards transferred to Ackermann just to accommodate Kraft. Also that Kraft wrote the receipt which Ackermann signed for the stock, and that he (defendant) never knew that said receipt contained a clause transferring the $4000 note to him until the receipt was introduced at the'trial. Defendant introduced a deed of trust which in date, parties, property conveyed and amount corresponds with the one which Ackermann attempted to purchase. Iiis claim is that he found this deed of trust in 1911 among some old discarded papers which Kraft had stored in a shed. No evidence was introduced tending to show what became of the $4000 note of April 14, 1911, which the deed of trust was given to secure. However, that faqt is not important in view of defendant’s admission on the.stand that he never, at any time, had any interest in either the note or deed of trust which, if Ackermann is correct, he pretended to sell to the latter. The remainder of defendant’s evidence is an emphatic denial of the statments of Ackermann and his sister, Mrs. Wende, and tends to prove that Kraft alone was responsible for obtaining the $4000 from Ackermann. Several witnesses testified to the good reputation of defendant. He was tried separately. It appears, by inference at least, that Kraft absconded and was not arrested.

For reversal defendant asserts (1) that the information is fatally defective; (2) that if any crime was committed it is barred by the three-year Statute of Limitations, and (3) that the evidence is insufficient to support the verdict.

I. Defendant contends that the information is fatally defective in this, that while it recites that Ackermann was deceived by the defendant’s false representations and induced thereby to loan the $4000, it fails to recite that said Ackermann did in fact deliver and transfer to defendant the $4000 treasurer’s check of the Mercantile Trust Company, citing State v. Phelan, 159 Mo. 122; State v. Barbee, 136 Mo. 440; and State v. Hubbard, 170 Mo. 353. This contention cannot be susstained for the reason that the same paragraph of the information which recites that Ackermann believed the false statements of defendant and was thereby deceived and induced to loan the $4000, contains the further allegation that “Ackermann did then and there deliver and transfer” to defendant the treasurer’s check of the Mercantile Trust Company set out in the indictment.

There is another charge in the information that defendant represented that he had the'$4000 note and deed of trust in a safety deposit box of the German Savings Institution and would keep it there subject to the demand ■ of Ackermann. There is a defect* in this part of the information, but that defect does not impair the validity of the first allegation, which charges that defendant represented that he and Kraft were “then and there the owners of and had in their possession” the promissory note for $4000 secured by deed of trust.

The charge that defendant falsely represented that he had the note and deed of trust in a safety deposit box of the German Savings Institution was not clearly proven, but that fact does not affect the validity of the conviction, for the reason that where several false pretenses are jointly charged it is only necessary to prove that one of said pretenses was in fact untrue, [State v. Keyes, 196 Mo. 136; 2 Bishop’s New Criminal Law, see. 418.]

That part of the indictment which refers to the • depositing or keeping of the note and deed of trust in the safety deposit box of the German Savings Institution subject to Ackermann’s order may, and should, be treated as surplusage, and no proof thereof was necessary. [State v. Vorback, 66 Mo. l. c. 172.] The learned trial judge appreciated this feature of the law and did not submit to the jury the truth of the allegation that defendant promised to keep the note and deed of trust in a safety deposit box of the German Savings Institution subject to the demand of Ackermann. The information is sufficient.

II. The further contention of defendant is that if any false pretense or false statement was made to Ackermann which induced him to deliver the $4000 check to defendant, that statement was made in the note dated May 6, 1908, and' consequently the crime was committed, if committed at all, more than three years before May 9, 1911, the date when the information was filed. This assignment must likewise be overruled. While the note of May 6, 1908, contains a false recital that the $4000 note and deed of trust which Ackermann was trying to purchase “had been'pledged with said Louis Ackermann,” etc., and that false recital might have aided in deceiving' Ackermann, there is not a word in. the record to indicate that Ackermann ever saw the note of May 6, 1908 (hereinbefore set out) until May 14, 1908, when it was delivered to him. Mere lying or misrepresentation is not of itself a crime. It is only when a misrepresentation bears fruit by causing some one to part with money or property that section 4565, Revised Statutes 1909, is violated. In the opinion of the writer false representations which result in a crime should be treated as having been made at the time the victim of •such false reresentations delivers his money or property to the person making the false- statements.

III. It is unnecessary to repeat the evidence in passing upon defendant’s contention that it is insufficient to support the judgment. A fair synoPs^s the material evidence may be found in our statement of the case. The evidence of defendant would indicate that he was not guilty of any crime or even of deception, while the testimony of Ackermann and his sister makes out a clear prima-facie case of guilt. The jury looked into the faces of these witnesses and were in a far better position to judge of the truthfulness of their statements then we are. But even looking at the evidence in cold type we are convinced that the written documents introduced (the authenticity of which is conceded) more strongly corroborate the evidence of Ackermann than the evidence of defendant.

It was the special province of the jury to weigh the evidence and we will not disturb their verdict. There being no reversible error in the record the judgment of the trial court is affirmed.

Walker and Faris, JJ. concur.


author: WILLIAMS, C.

text:
    THE STATE v. JOHN LANGLEY, Appellant.
    Division Two,
    March 12, 1913.
    1. EVIDENCE: Burden of Proof: Criminal Law. The burden is upon the State in a criminal prosecution to establish every constituent element of the offense, and this burden remains with the State throughout the trial.
    2. MISTREATING CHILD: Sec. 4492, R. S. 1909: Proving Negative. Under.Sec. 4492, R. S. 1909, providing that if any father of a child under sixteen years old shall, “without lawful excuse,” refuse or neglect to provide necessary food, etc., lie shall be punished, the State must prove that the refusal or neglect charged was without lawful excuse.
    3. -:--: Evidence: Appeal. Evidence held not sufficient to support a conviction under Sec. 4492, R. S. 1909.
    4. -: —--: Instructions: Surplusage. The addition of the words “knowingly failed” after the words “without lawful excuse” in an instruction given in a prosecution under Sec. 4492, R. S. 1909, for mistreatment of a child, is mot reversible error.
    5. -: --: -: Necessary Elements:. Assuming Facts. An instruction in a prosecution under Sec. 4492, R. S. 1909, for mistreating a child, is erroneous if it fails to include the qualifying phrase “without lawful excuse,” and if it assumes that certain elements of the charge have been proved, by saying “although, you may find that the defendant wilfully failed, refused or neglected to provide for his infant children as shown by the evidence," etc.
    Appeal from Hannibal Court of Common Pleas. — ■ Eon. William I. Ragland, Judge.
    Reversed and remanded.

      Thomas F. Galls for appellant.

      Elliott W. Major, Attorney-General, and Á. W. Stewart for tbe State.
    Tbe information charges tbe offense in tbe language of tbe statute. R. S. 1909, sec. 4492. When the act defines tbe offense, it is sufficient to charge tbe offense in tbe language of tbe act. State v. Davis, 70 Mo. 464; State v. Adcock, 65 Mo. 590; State v. Block, 82 S. W. 1103.
   WILLIAMS, C.

At the January term, 1912, of tbe Hannibal Court of Common Pleas, tbe defendant was convicted for violation of tbe provisions of section 4492, Revised Statutes 1909, which said section is as follows:

“If any mother of any infant child, under tbe age of sixteen years, or any father of any such, .infant child, horn in or legitimatized by lawful wedlock, or any person who has adopted any such infant child, or any master or mistress of an apprentice, under such age, or other person having the legal care and control of any such infant shall, without lawful excuse, refuse or neglect to provide for such infant or apprentice necessary food, clothing or lodging, or shall unlawfully and purposely assault such infant or apprentice, whereby Ms life shall be endangered or Ms health shall have been or shall be likely to be permanently injured, the person so offending shall, upon conviction, be punished by imprisonment in the penitentiary not exceeding three years, or by imprisonment in the county jail not exceeding one year, or by a fine of not more than one thousand dollars, or by both such fine and imprisonment.”

Defendant’s punishment was assessed at two years in the penitentiary. He appeals to this court.

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

Defendant and his wife, Sadie Langley, had been married about twenty-five years, and had three children living at the time of the trial, each under the age of sixteen years. During the greater portion of the five years preceding the day of the trial, defendant and his wife, had, by mutual consent, lived apart, she having the three children with her. During this period the husband and wife were in continuous litigation, each trying to procure a divorce from the other. Three or four different suits were brought, but neither party was decreed a divorce. The final separation of husband and wife occurred in August, 1909, at which time the wife, taking the children and some of the household furniture with her, removed to what was known as the Shamrock building, in the city of Hannibal, Missouri, and she and the children continued to live there until the latter part of January, or first part of February, 1911, when she, taking the children with her, went across the river, and onto a farm in Illinois, to work for a farmer.

From August, 1909, till about January 25, 1911, defendant paid fifteen dollars per month to his wife to aid in providing’ for the children. These payments seem to have been made in compliance with an order of the court in which one of the divorce proceedings was pending. Just before defendant’s wife removed, with the children, to Illinois, she 'told him that she was going’ to take the children and go to Illinois to work for a man named G-reen, who was to give her three dollars a week and provide a home for herself and children. Defendant consented to her going and taking the children with her, and then told her that he was going to his half-brother’s, at St. Joseph, Missouri. The wife and children remained in Illinois for about three months, and until she became sick, when she returned to Hannibal and went to her mother’s house, where she remained, sick, for a few weeks, and then, on May 15, 1911, she, with her children, again went to live at the Shamrock building. On May 18, 1911, defendant returned from St. Joseph to Hannibal, and was arrested three days later, charged with this offense. Defendant had no notice or knowledge of the return of his wife and children to Hannibal until May 18, 1911, the date of his return. The wife testified that she knew defendant’s half-brother, in St. Joseph, well, but that she made no effort to notify him, or her husband through him, of the fact of her return or of the condition of the children.

Evidence was introduced by the State, over defendant’s objection, showing that the children became destitute after the return from Illinois, and that their health was injured by reason of their not having sufficient food and clothing, but the court later, by instruction, directed the jury not to consider this part of the State’s evidence, presumably on the theory that defendant had not heen notified, and was without knowledge, of the situation at that time.

The evidence showed that prior to the time the wife and children went to Illinois they were living in one room, the floor of which was without carpet, with little or no furniture aside from a cook stove and bed in the room, and that during portions of this time the wife and children were without sufficient food and received aid from a charitable organization in the city of Hannibal. It is hot shown what attitude defendant took with reference to supporting the children upon his return from St. Joseph.

Defendant testified in his own behalf that he had lived in Hannibal all his life, and had worked for eleven years at the powder plant there; that for the greater part of the seven years next preceding the trial he had worked at a cement plant there, but that on December 26, 1910, the work at the cement plant was discontinued until the following spring, during which interval he was without work; that he had paid his wife fifteen dollars a month until just before he left for St. Joseph, where he went to seek employment, and that before leaving he told his wife where he was going. His testimony corroborated that of his wife as to the arrangement she had made about taking the children with her to Illinois. He testified that during the time he was making the monthly payments of fifteen dollars he was working at the cement plant on the night shift at $1.60 per day, and that during a portion of that time he had worked for only about three or four nights in each week, and had to pay car fare out of his wages. He- also testified that, in addition to paying his wife fifteen dollars a month, he purchased school books and some clothing for the children, and had a grocer named McDonald deliver groceries to his wife and children at different times up till she left for Illinois; that from the time his wife went to Illinois until he returned to Hannibal, in May, 1911, he received no word from her, or from any source, concerning his family, and that he knew nothing of their condition until after his return to Hannibal. Defendant further testified that while in St. Joseph he procured a decree of divorce, that the court made an order awarding him the custody of the children, and that, a few days before he returned to Hannibal, he re-married; that, upon his return to Hannibal, he demanded the children, but that their mother refused to let him have them, and in a day or so thereafter had him arrested.

Witness McDonald testified in behalf of defendant that he had been in the grocery business at Hannibal for thirty years, and had known the defendant about twenty-five years: Corroborating defendant’s testimony in that regard, he testified that he, had furnished groceries to defendant’s wife at different intervals up until she left for. Illinois. This witness also testified that defendant had been a customer of his for several years, and had always paid his bills, including those for the groceries furnished the wife after defendant and his wife had separated.

Appellant complains (1) that the evidence is not sufficient to support the verdict, and (2) that the court erred in the giving of certain instructions.

I. In order to avoid confusion or misunderstanding concerning the questions involved in this case, we desire at the outset to call attention to three separate statutory offenses involving violations of parental duty.

Section 4490, Revised Statutes 1909, makes it a felony for a parent, etc., of a child under six years of age to expose such child in a street, field or other place, with intent wholly to abandon it.

Section 4490, as amended by the Act of 1911 (Laws 1911, p. 193), provides that, “If any man shall, without good cause, abandon or desert his wife, or abandon his child or children under the ae’e of fifteen years, born in or legitimatized by lawful wedlock, and shall fail, neglect or refuse to maintain • and provide for such wife, child or children,” he shall be punished by fine, or by imprisonment in the county jail, or by both.

Section 4492, the provisions of which defendant is charged with violating, provides that, “If any mother of any infant child, under the age of sixteen years, or any father of any such infant child, born in or legitimatized by lawful wedlock . . . shall, without lawful excuse, refuse or neglect to provide for such infant . . . necessary food, clothing or lodging, . . . whereby his life shall' be endangered, or his health shall have been or shall be likely to be permanently injured, the person so offending shall, upon conviction, be punished,” etc.

It will be noticed that in order .for the father to he guilty of a violation of this statute, he must, first, refuse or neglect to provide the child with necessary food, clothing or lodging; second, such refusal or neglect must be without lawful excuse; third, the refusal or neglect to so provide must endanger the child’s life or permanently injure his health, or be such as shall be likely to permanently injure the child’s health. The first and second of these statutory requirements must exist at the same time, and the third must directly result therefrom.

In determining the sufficiency of evidence to convict of any offense, it first becomes necessary to inquire and determine what facts must be proved by the State to sustain a conviction. It will not be questioned but that the State in this case is required to prove the first and third requirements above enumerated; but as to the second requirement,' viz., that the act of refusal or neglect must be committed without lawful excuse, some question may arise.

A careful review of the record fails to disclose any evidence tending to show absence of “lawful excuse.” There is no evidence as to the financial ability of the defendant, or as to whether by the wages he received for his labor, or by other means in his possession or within his control, he was able to furnish more than the fifteen dollars per month which he did furnish up to about the time his wife and children went to Illinois. It is not the purpose of the statute to place a penalty upon the inability of the parent. There could be no criminal intent in a case of this character when the accused does not possess the ability to do that which he omits to do, unless he, with criminal intent, brings about or aids in bringing about his inability. According to the defendant’s testimony, he rendered all the aid he was able to render up to the time his children went to Illinois, where they were to have a home, and he had no knowledge or information concerning, the changed condition until he returned to Plannibal. The record is silent as to what he did, or what attitude he took, with reference to their support upon his return. The evidence shows that he made no secret of his whereabouts in St. Joseph, and it is not shown that he went to St. Joseph secretly, or for the purpose of shirking responsibility for the support of his children.

The burden is upon the State to establish every constituent element of the offense charged, and this burden remains with the State throughout the trial. [State v. Hardelein, 169 Mo. 579.] After a careful review of the authorities, we have come to the conclusion that in proving a charge under the statute in question, it was incumbent upon the State to show facts and circumstances which would tend to prove that the refusal or neglect with which defendant is charged was “without lawful excuse.” The rule is well stated in Chamberlayne’s Modern Law of Evidence, vol. 2, sec. 960, as follows':

“Where proof of the offense charged involves showing negative allegations, the State’s burden of proof may require that, so far as reasonably capable of proof, these should be established by the prosecution. In the same way, where the Legislature or judiciary has established certain exceptional states of fact under which the penalties prescribed by law do not attach, it is the duty of the State to negative the existence of these both in allegation and proof.”

Certain exceptions are then recited by the learned author which fall without the scope of the issues involved here. To the same effect are the following authorities : State v. Hirsch, 45 Mo. 429; Underhill on Crim. Ev., (2 Ed.,), sec. 24, p. 44; 2 Ency. of Evidence pages 802(d), 804(2); 1 Greenleaf on Evidence (16 Ed.), sec. 80.

In prosecutions under the statute (section 4495) making it an offense for a man to abandon his wife or children, ivithout good cause, the appellate courts of this State have adhered to the rule requiring the State to prove absence of “good cause.” [State v. Doyde, 68 Mo. App. 219, and other cases.] In the case of State v. Linck, 68 Mo. App. l. c. 162-163, Judge Bond, in stating the rule in cases of that kind, uses the following language: “In establishing the first proposition, it is incumbent on the State to give evidence of the absence of good cause for the abandonment, although in so doing it is necessary to prove a negative. ’ ’ And further: “The evidence in this case does not warrant a conviction. It wholly failed to prove . . . a failure to provide for the wife and family to the extent of the income of the husband.”

It therefore follows that the evidence in this case is not sufficient to support the verdict.

II. Appellant complains of instruction No. 1, given by the court, in that said instruction added the words “knowingly failed” to the words of the statute. The statute uses the words “l’efuse or :Qe§’Uct. ’ ’ By this instruction the jury were allowed to convict defendant if they found that he had, without lawful excuse, knowingly failed, refused or neglected, etc. The phrase “knowingly failed” does not differ in meaning from the word “neglect,” used in the statute, to the extent that its use in the instruction would constitute reversible error.

Appellant also complains of instruction No. 2 given by the court, which instruction is as follows:

“The court further instructs the jury that although you may find that the defendant wilfully failed, refused or neglected to provide for his infant children as shown by the evidence, with sufficient food, clothing and lodging for the sustenance of their body and health, yet unless you further find that such failure, refusal or neglect actually endangered the lives of said children, or permanently injured the health of said children, or was likely to permanently injure their health, you cannot find the defendant guilty.”

This instruction is clearly erroneous. It omits the qualifying phrase, “without lawful excuse;” and the phrase, “as shown by the evidence,” should have been omitted, because it assumes that certain elements of the charge were proven.

The judgment is reversed and the cause remanded.

Roy, C., not sitting.

PEE CUEIAM. — The above opinion by Williams, C., is adopted as the opinion of the court.

All the judges concur.