text:
    THE STATE v. HENRY BOYER, Appellant.
    Division Two,
    February 7, 1911.
    1. EVIDENCE: No Objection. The court will not hold it was error to admit evidence to which no objection was made at the time it was offered.
    2. -: Competent: Other Related Acts. Testimony offered by the State that defendant, an hour or two prior to the time he shot deceased at the door of the dance hall, was waving a pistol over the head of another guest in the hall, is competent, whether the homicide was the result of defendant’s attempt to shoot another guest, as the State contends, or was accidental and resulted from an attempt by bystanders to deprive defendant of his pistol and it was discharged accidentally in the scuffle, as defendant contends. [Distinguishing State v. Brown, 188 Mo. 451.]
    3. -: Defendant as Witness. The usual instruction concerning defendant as a witness and his interest in the result as affecting his credibility, is again held not to be reversible error, but its fairness is not commended.
    4. SUFFICIENT EVIDENCE: Murder: Shooting at One, Killing Another. R. was standing outside the door talking loud, and daring N. to come out that he might be whipped. Defendant came through the door with a pistol in hand, stepped up to R., said, “Will you behave?” and snapped the pistol at him twice, R. ran, defendant fired at him a third time, the cartridge exploded and the bullet struck .the deceased, T., who was standing in the line of R.’s flight. When T. fell, defendant exclaimed, “I have killed the wrong man.” EeT&, the evidence was 'sufficient to support a verdict of murder in the first degree.
    5. -: -: -: Friends. Nor do the facts that defendant and R. were-good friends, were on friendly terms at the time and had never had any trouble, reduce the homicide below murder in the first degree. Those facts can have no force in the light of the other facts.
    6. JURY: Murder: Voir Dire: Explanation of Punishment. An explanation by the court to the veniremen, upon their voir dire examination in a murder case, that the jury had the right to determine whether defendant, if convicted, should receive the death penalty or life imprisonment, and that, as the death penalty might be considered the proper punishment, jurors should qualify as to whether or not they had conscientious scruples against capital punishment, was not prejudicial error, nor did it tend in any degree to defendant’s prejudice.
    Appeal from Washington Circuit Court. — How. Jos. J. Williams) Judge.
    Affirmed.

      M. E. Rhodes for appellant.
    (1) The State has failed to prove a willful, felonious, deliberate, premeditated, malicious attempt to kill either Wilfred Roussan, Boss Courtois or any other person, because the testimony of Roussan was that he and the defendant were friends, were on friendly terms at the time, and had never had any trouble. The well-recognized principle of criminal law that in the absence of criminal intent crime is not committed, is too elementary to justify the submission of authorities. Reading all the testimony for the State from beginning to end, one fails to see wherein appellant was actuated at any time during this eventful night by criminal design. For the State to convict appellant, of murder in the first degree, it must be shown that he tried to kill Wilfred Roussan, because-that was the hypothesis on which the State based its charge of murder against this appellant. (2) “Where illegal evidence has been admitted, it should be withdrawn by positive direction to the jury. It will not be sufficient to exclude it by inference only.” 11 Enc-y. PI. & Prac. 309. “It is difficult to tell what effect evidence admitted may have upon the triers of fact, but the impression made by what the court declared to be competent testimony can hardly be removed by anything short of "a flat direction that it must be disregarded.” Hinkle v. McClure, 32 Ohio St. 202. In the case at bar, the trial court should have withdrawn the testimony by a flat direction, ■which it failed to do. Every reason that justified the court in attempting to withdraw this illegal evidence was defeated in the last clause in instruction 2. The proper way to withdraw illegal evidence from the jury is by instruction. State v. Willard, 109 Mo. 242; State v. Silva, 130 Mo. 440; State v. Dower, 134 Mo. 352; State v. Minor, 193 Mo. 597; State v. Spivey, 191 Mo. 87. “An instruction to disregard evidence improperly admitted will not cure the' error admitting it, if prejudicial to the defendant.” State v. Mix, 15 Mo. 153; State v; Marshall, 36 Mo. 400; State v. Fredericks, 85 Mo. 145; State v. Kuehner, 93 Mo. 193; State v. Thomas, 99 Mo. 235; State v. Brown, 188 Mo. 451.

      Elliott W. Major, Attorney-General, and James T. Bla4r, Assistant Attorney-General, for the State.
    (1) In the motion for new trial complaint is made that the court lectured the veniremen a little more than the ends of .justice seemed to require. The answer is that no exceptions to the trial judge’s remarks were taken below. It is only on .the back of an exception that an objection can travel to this court. (2) There was no error in permitting counsel for the State, other than the prosecuting attorney, to make the opening statement. State v. Taylor, 98 Mo. 243; State v. Coleman, 199 Mo; 120. (3) The motion for new trial contains the usual allegations of error in the admission and exclusion of evidence. Yery few exceptions were saved, (a) Certain objections were supported by no reason given at the time. State v. West, 95 Mo. 149; State v. Wright, 134 Mo. 418; State v. Llarris, 199 Mo. 723. (b) This court will not ordinarily review the exercise of the discretion of the trial court in permitting leading questions. . State v. Duestrow, 137 Mo. 84. (4) There was -an abundance of evidence tending to show a willful, felonious, deliberate, premeditated, malicious attempt by defendant to kill Wilfred Roussan. The fact that the bullet intended for Roussan struck and killed Trokey, whom appellant did not intend to kill, does not exculpate appellant. It was still murder. State v. Mulhall, 199 Mo: 218. (5) The second instruction was merely the trial court’s effort to withdraw from the jury’s consideration the testimony relative to the altercation between appellant and Courtois. The testimony mentioned was in the record and went in without objection. Anything the court did toward reducing its weight, was of benefit to appellant. If instruction 2 had not been given, this testimony would have remained in the case for all purposes. The instruction limited the purposes for which the jury might consider the testimony. In other words, appellant was placed in a better position by the giving of the instruction than he would have been in without it. lie requested no instruction in this connection. He cannot now complain that he got more consideration than he asked. And the evidence was perhaps competent to refute the evidence of accidental discharge. State v. McDonald, 14 R. I. 271. But the main consideration is that without this instruction, which the court voluntarily gave, the testimony would have gone to the jury for all purposes and that the restrictions thrown around it by the instruction were in appellant’s favor. (6) The instruction as to the appellant’s testimony is in accord with the rule in this State. State v. Maguire, 69 Mo. 202; State v. Zorn, 71 Mo. 416; State v. Dilts, 191 Mo. 673.
   FERRISS, J.

Defendant was convicted in the circuit court of Washington county of murder in the first degree, and sentenced to the penitentiary for life.

The homicide was committed on the 4th day of October, 1907, upon one Thomas Trokey. The evideuce on the part of the State tended to show that on the night of -October 4,1907, a dance was held at Cadet, Washington county, which was attended by some thirty or forty persons, including defendant and deceased. There was music, dancing, drinking and • quarreling. The defendant and one Ralls promoted and were in charge of the dance. Deceased was one of the musicians, and 'in no way participated in any disorder. After the ball was over, about 11:30 or 12 o’clock at night, one Wilfred Roussan was standing outside the door, defying one Frank Nephew to come outside and be whipped. Defendant stepped out of the door, took hold of Roussan and pointed his pistol at him, snapping it twice, the cartridges missing fire. At this juncture Roussan turned and ran between defendant and the deceased. Defendant pulled the trigger the third time, and this time the cartridge exploded, the ball striking deceased in the temple, killing him instantly. After the killing defendant' fled, and was not apprehended until in January, 1910, when he was found in the State of Louisiana. The evidence further showed that about an hour and a half or two hours prior to the shooting, defendant had ejected Wilfred R-oussan from the hall, but the evidence fails to show anything further in connection with this incident; that is, whether there was any quarreling or fighting, or any words exchanged between the parties on that occasion.

The evidence on the part of the defense tended to show that the shot which killed the deceased was accidentally fired during a scuffle between defendant and others who were engaged in an effort to wrest' the weapon from defendant’s grasp. Defendant‘also introduced' evidence tending to show that his reputation was good. Any further evidence necessary to an understanding of the case will appear in connection with the opinion.

The court gave instructions such as are ordinarily and properly given under the charge of murder in the first degree, and also the following instructions, complained of by defendant:

“2. You are further instructed that if you believe.and find from the evidence that defendant and another person, mentioned in the evidence, at any time before the filing of the information in this case, that is to say at any time before the 15th day of February, 1910, in Washington county, and State of Missouri, gave a dancing party, at which Wilford Roussan and Boss Courtois and other persons were present, and if you believe and find from the evidence that Thomas Trokey, being present at said dancing party, was then and there shot and killed by the defendant, and if you further believe and find from the evidence that during tíre progress of said dancing party, and shortly before said Thomas Trokey was so shot and killed, the defendant had some altercation with the said Boss Courtois in the room in which said dance was given, and that he then and there menaced said Boss Courtois with a pistol, then you are instructed that such altercation and menacing of said Boss Courtois with a pistol by the defendant, is not a matter for your consideration in the trial of this case, and you should not consider it in making up your verdict as to the guilt or innocence of the defendant, .except in so far as you may from the evidence believe and find that said incident may throw light upon the reason of'the defendant for the firing of the shot which resulted in the death of said Thomas Trokey, if you in fact believe and find from the evidence that said incident, if it took place, throws any light on the reason for the firing of said shot.”
“•6. You are further instructed that the defendant is' a competent witness in this case, and that you must consider his testimony in arriving at your verdict, but you, in determining what weight and credibility you should give his testimony in making up your verdict, may take into consideration, as affecting his credibility, his interest in the result of the case, together with the fact that he is the accused party on trial, testifying in his own behalf. ’ ’

Defendant’s grounds for a new trial, as set forth in the motion, are as follows:

“1. Because the court erred in admitting illegal and incompetent evidence, offered by the State, and over the objections of the defendant.
“2. Because the court erred in excluding legal and competent testimony offered by the defendant, and over the objections of the defendant.
“3. Because the court erred in giving, of its own motion, instructions numbered 1, 2, 3, 4, 6 and 8, and over the objections of the defendant.
“4. Because the court erred in refusing and failing to declare all the law applicable to this case, and necessary in aiding the jury to arrive at a proper verdict in this ease.
“5. Because the court.erred in that the court commented upon the evidence in this case in instructions 2 and 6, over the objections of the defendant.
“6. Because the verdict is contrary to the evidence and the law of this case.
“7. Because the court erred in refusing to permit M. E. Rhodes, one of the attorneys for the defendant, to make legitimate and proper argument-to the jury on behalf of this defendant in the trial of this cause.
“8. Because the court erred in lecturing the panel of jurors summoned in this cause, at the time said jurors were being examined, as to their qualifications to sit on the trial of this cause, in such manner and to such extent as to prejudice the minds of the jurors against this defendant.
“9. Because the court erred in failing to require the prosecuting attorney to state the case to the jury before the offering and taking of. evidence in support of the prosecution in this cause, and by permitting S. G-. Nipper, who .was not at the time the legally elected, qualified and acting prosecuting attorney, to state the case to the jury, nor had he been appointed by the court to prosecute this defendant in the trial of this cause, over the objections of this defendant.
“10. Because the court erred in that the court misdirected the jury as to material matters of law in the trial of this cause.”

Defendant’s motion in arrest of judgment, omitting caption, is as follows:

“1. Because the prosecuting attorney had no right or authority in law to file the information in this cause except upon the preferment and finding of a true bill by a legally constituted grand jury, summoned from the body of Washington county, State of Missouri.
“2. Because the facts stated in said information do not constitute a public offense.
“3-. Because the facts stated in said information do not constitute the charge for which defendant was convicted, that of murder in the first degree.
“4. Because the verdict of the jury is insufficient to sustain a judgment.”

In the brief filed on behalf of the defendant but two points are presented. One, which the brief states is “appellant’s chief contention,” is to the effect that the court admitted illegal evidence, going to show that the defendant “waved a pistol over the head of Boss Courtois an hour and a half before the killing of Thomas Trokey, over the objections of appellant, and the effort of the trial conrt to withdraw the same from the jury after having improperly admitted it, in instruction number 2.” The only other point urged by defendant in his brief is that “the State has failed to prove a willful, felonious, deliberate, premeditated, malicious attempt to kill Wilfred Roussan, Boss Courtois or any other person.” We will, however, take up’ the various points urged in the motion for a new trial and the motion in arrest, and dispose of them in order.

First: The first point urged by the defendant, and the one upon which he chiefly relies, is that the court erred in admitting the testimony of the witnesses for the State to the effect that an hour and a half or so prior to the shooting the defendant flourished a pistol in the face of one Boss Courtois in the dance hall.

This evidence was not objected to by the defendant. Several witnesses — three at least — testified that the defendant flourished his pistol in the face of Boss Courtois, and the latter testified to the same thing; all without objection. At the close of the examination of this last witness by the State, the following occurred: Question by the prosecuting attorney: “TIow did he (defendant) come to draw a gun on you?” Answer: “I couldn’t tell yoti.” Judge Dearing (counsel for the defendant): “We object to this as incompetent, irrelevant and immaterial; not charged with an assault on this man at all.” The Court: “Hasn’t any connection with this other case, has it?” Judge Dearing: “No, sir, it hasn’t.” Mr. Nipper, attorney for the State: “That’s all.” It will be perceived that this objection did not go to testimony as to the facts, but simply to the reason. No other objection appears in the record. On the contrary, we may gather from the record that counsel for defendant regarded the Boss Courtois episode as having a favorable bearing on his theory of accidental shooting. He developed the same proof from his own witnesses, presumably on the theory that it tended to show that defendant was displaying a pistol without any criminal intent.

Were we to treat this evidence as having been properly objected to, we could not say that it was incompetent. This case is unlike the ease of State v. Brown, 188 Mo. 451, on which defendant relies. In that case the former act was not related to the act of killing either in point of time or association. In view of the foregoing, the objections to instruction number 2 are not well founded.

Second: Our attention has not been called to any evidence offered by defendant which was excluded by the court, nor do we find any such in the record.

Third: No objection is made in the brief of defendant to the remaining instructions, and they are beyond criticism, with the possible exception of instruction numbered 6. This instruction has been uniformly given in criminal cases, and has met the approval of this court. The writer, speaking for himself, thinks this instruction ought not to have been given. He is of the opinion that th§ usual instruction given, and which was given in this case, advising the jury that they are the sole judges of the credibility of witnesses and of the weight and value to be given their testimony, etc., is sufficient, and that in such case the particular instruction to the jury as to the testimony of the defendant is unnecessary and improper; but in view of the fact that this instruction has been uniformly given, and has been approved by this court (State v. Dilts, 181 Mo.. 665', and cases cited), the court is not now prepared to reverse the case because of this instruct tion.

Fourth: Points 4 and 5, in the motion for a new trial, are fully covered by what has already been said.

Fifth: The evidence supports the verdict. The defendant argues that the State has failed to prove murder in the first degree, because of the testimony of Roussan “that he and defendant were good friends, were on friendly terms at the time, and had never had any trouble.” This contention can have no force in the light of the facts attending the shooting. Roussan was standing outside the door, talking loud and defying one Nephew to come out. Defendant came out through the door with pistol in hand, stepped up to Roussan, said, “Will you behave?” and snapped the pistol at Roussan twice. Then Roussan ran. Defendant fired at him the third time. This time the cartridge exploded, and the bullet struck Trokey, who was standing in the line of Roussan’s flight. When Trokey fell, defendant exclaimed, “I have killed the wrong man.” The evidence shows both deliberation and premeditation. The case was tried by both sides on the theory that the killing was either murder in the first degree or accident.

Sixth: We do not find in the record any refusal by the court to permit the attorney for defendant to make legitimate and proper argument to the jury.

Seventh: Upon the examination of the jury upon their voir dire the court explained at considerable length the law in regard to the right of the jury to determine whether the defendant should receive the death penalty in case of conviction, or be sentenced to the penitentiary for life, and that as the death penalty might be regarded as the proper punishment in case of conviction, jurors should qualify upon the question as to whether or not they had conscientious scruples against capital’ punishment. We do not see anything in this explanation which would tend in any degree' to prejudice the jury against the defendant.

Eighth: The objection that the case was stated to the jury by special counsel for the State, and not by the regular prosecuting attorney, cannot be sustained. [State v. Taylor, 98 Mo. l. c. 243; State v. Coleman, 199 Mo. l. c. 120.]

The motion in arrest of judgment was properly overruled. The information was sufficient. Defendant does not refer to it in his brief.

The case was thoroughly tried. The instructions presented the issues fairly to the jury. The verdict is amply sustained by the evidence.

There being no reversible error, the judgment is affirmed.

Kennish, P. J., and Brown, J., concur.


source: Caselaw Access Project

author: KENNISH, P. J.

license: Public Domain

text:
    THE STATE v. GEORGE GLASSCOCK, Appellant.
    Division Two,
    February 7, 1911.
    1. INDICTMENT: Defects: How Raised. Defects appearing on the face of an indictment may be raised by a demurrer; but irregularities in the impaneling of the grand jury and in qualifying its members, are not matters of demurrer, but should be raised by a plea in abatement, motion to quash, etc., and by evidence in support thereof.
    2. PLEA IN ABATEMENT: Grand Jury: Challenge. Challenges of a grand jury and of its members are of two kinds, namely, challenge to the array, and challenge to the polls. Challenge to the array is for some imperfection in the constitution of the panel; and a,challenge to the polls is for some disqualification of a juror. But under the statute neither is available unless made before the jury is sworn.
    3. -: Motion to Quash: Preserved for Review. A plea in abatement and a motion to quash the indictment are matters of exception, and can be preserved for review on appeal only by being made a part of the bill of exceptions. So that a challenge to the grand jury, whether to the array or because of the disqualification of its members, made by a plea in abatement and by a motion to quash, will not avail defendant on appeal and cannot be considered, unless the plea and motion are preserved in the bill.
    4. EVIDENCE: Murder: Consciousness of Guilt: Unnatural Conduct. Where deceased had been mysteriously shot on his own premises in a pasture near his garden about eleven o’clock on Sunday in summer, and the news spread rapidly and within an hour a hundred people had assembled at the scene of the crime, coming in vehicle's and on horses, many of them along the public road near defendant’s house, which was only a quarter of a mile' away, testimony that defendant did not go to the home of deceased, whose family consisted of a wife and two small children, that in the afternoon he rode to his pasture in the opposite direction, that he did not attend deceased’s funeral and did not go near his home until compelled by subpoena to attend the inquest, was competent evidence as ten.ding to show his consciousness of guilt, although the State had previously shown that ill-will existed between the men.
    5. -: -: -: Alibi: Contradictory Evidence by State. Although the State’s witnesses located defendant at a certain place on the morning of the homicide, it was not incompetent to permit the State to show by other witnesses that defendant had made statements to the effect that he was at another place at that time. Whether or not the testimony of the first witnesses furnished a sufficient basis for the defense of alibi, the State had the undoubted right to prove by them or other witnesses that defendant made false statements as to his whereabouts, as a circumstance tending to prove his consciousness of guilt.
    C. -: No Objection. Unless an objection is made to testimony offered by the State at the time it is offered, the ruling of the court admitting it will not be considered on appeal.
    7. INSTRUCTION: ALIBI. An instruction on the subject of alibi which tells the jury that “the defendant is not required to establish this defense b'eyond a reasonable doubt, but if from the whole evidence you have a reasonable. doubt of defendant’s presence at the commission of the alleged offense, you must give, him the benefit of that doubt and acquit him,” fairly and correctly states the law; and though defendant offers no evidence to establish an alibi, yet if the State introduces testimony tending to prove that defendant made contradictory statements as to his whereabouts at the time the crime was committed, the purpose being to show the defendant’s consciousness of guilt, as a circumstance in the case, it is not error to give an instruction on the subject of alibi where the one asked by defendant was refused.
    Appeal from Ray Circuit Court. — Root. F. II. Trimble, Judge.
    Affirmed.

      Jas. L. Farris, Jr., J. D. Allen and Lavelock & Kirkpatrick for appellant.
    (1) The vacation order of the judge of the circuit court, convening a grand jury for- the October term, 1909, that being the term at which the defendant was indicted, was not made and filed as the law directs; the order for the grand jury was not filed by said judge, hut by the prosecuting attorney. This was neither a literal nor a substantial compliance with the mandate of the statutes. R. S. 1909, sec. 7266. (2) The record does not disclose that the body which preferred the indictment against the defendant was legally impaneled as a grand jury; the names of the individuals set out in the special venire do not correspond with the names of the individuals composing the body that returned the indictment; the names differ and the individuals are not in any way identified. Some of the veniremen were sworn while others affirmed, but it was made to appear that any one was entitled to qualify as a grand juror without taking the required oath; under certain circumstances a grand juror may qualify as such by affirming, hut in order to do so it must be made to appear that he was entitled to qualify by affirmation instead of by oath. R. S. 1909, sec. 6348; Rapalje’s Crim. Proc., sec. 68; State v. Rockafellow, 6 N. J. L. 405; State v. Harris, 7 N. J. L. 361; State v. Fox, 7 N. J. L. 244; State v. Harris, 7 N. J. L. 432; State v Fox, 9 N. J. L. 305. (3) The record recites that “said grand jurors were duly instructed, charged and sworn, except Michael P. Ploller, who duly affirms as provided in section 2489 of the Revised Statutes of the State of Missouri for the year 1899,” hut this section does not authorize the qualification of a grand juror by affirmation. (4) The indictment returned recites that “the grand jurors on their oaths present,” etc., hut the record affirmatively shows that all the grand jurors were not sworn, one having affirmed. The indictment therefore does not recite the facts. If some of the grand jurors qualify by oath and others hv affirmation, this fact should he shown by the indictment, 9 Car. & P. 78. (5) The return of.tlie sheriff on the venire was not copied into the court record, nor does the record show that the grand jury was selected from the individuals summoned by the sheriff, and under such circumstances there is no presumption as to the regularity of the proceedings in selecting and impaneling the grand jury. Connor v. State, 4 Terg. (Term.) 137. It therefore appears that the grand jury was not legally impaneled and sworn, and therefore the charge preferred against the defendant could not constitute in law a valid indictment against him, and the overruling of his objections thereto constituted reversible error.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State; Maurice G. Roberts of counsel.
    (1) It is intimated that the indictment cannot be upheld, that the whole proceeding must fail, because, it is alleged, the record does not show that the grand jury which returned the indictment was “impaneled.” The word “impanel” simply means the “making of a list of those who have been selected. ” Zapf v. State, 35 Fla. 210; Porter v. People, 7 How. Prac. 443; State v. Potter, 18 Conn. 175; Rich v. State, 1 Tex. App. 209; Lyman v. People, 7 111. App. 348. This record refutes the contention made as. above mentioned. Besides, any question of this sort must be raised before verdict. State v. Smallwood, 68 Mo. 194; State v. Clifton, 73 Mo. 430. And neither the plea in abatement nor the motion to quash can be considered as raising this or any other question since they are not incorporated in the bill of exceptions. State v. McKay, 225 Mo. 544; State v. Little, 228 Mo. 296. Further, the contention is not tenable under our statute, in any event, since no such challenge is permissible in' any case. State v. Reed, 162 Mo. 316. This contention is nearly in the class with those made in State v. Armstrong, 167 Mo. 267; State v. Orrick, 106 Mo. 118. (2) The motion to qnask. cannot be considered since it was not incorporated in the bill of exceptions. State v. McKay, 225 Mo. 544. Besides, the motion to quash was nothing* more than a challenge to the array, and was neither in time nor for any cause recognized by our statute. R. S. 1909, secs. 5067, 5068; State v. Hudspeth, 150 Mo. 21; State v. Crane, 202 Mo. 73. (3) The plea in abatement is not set out in the bill of exceptions and cannot be considered. State v. Little, 228 Mo. 295. Further, the suggestions next above, with reference to the .motion to quash, are equally applicable to the plea of abatement. (4) The bill of exceptions not containing either the motion to quash or the plea in abatement, there is nothing in this court to show that any point was made below on the summoning of the grand jury. It is necessary to raise these questions in the trial court. State v. Moore, 156 Mo. 142; State v. Pate, 67 Mo. 490. Further, even if the point had been properly preserved for review, it would have to be ruled against appellant. State v. Griffin, 87 Mo. 612. (5) Measured by the standard fixed by this court, there is an abundance of evidence to support the verdict. State v. Glahn, 97 Mo. 689; State v. Rumfelt, 228 Mo. 451; Dean v. Com., 32 Gratt. 923; State v. McGee, 188 Mo. 409; State v. Long, 209 Mo. 388; State v. Sharpless, 212 Mo. 207; State v. Page, 212 Mo. 242.
   KENNISH, P. J.

On the 3d day of November, 1909, the grand jury of Ray county returned an indictment charging George Glasscock with the crime of murder in the first degree. The indictment was in three counts, in each of which, in slightly varying language, the defendant was charged with shooting with a rifle and killing Clyde Hatfield on the 13th day of June, 1909. A demurrer, plea in abatement and motion to quash the indictment were each in turn filed and overruled. The State elected to prosecute for murder in the second degree. The accused was arraigned, entered his plea of not guilty and was put upon his trial, which resulted in a verdict of guilty, the punishment assessed being a term of fifteen years in the penitentiary. Timely motions for new trial and in arrest of judgment were filed and overruled, sentence was pronounced in conformity with the verdict, and an appeal was taken to this court.

The evidence for the State tended to show that during the summer of 1909 Clyde Hatfield was living upon and cultivating a portion of appellant’s farm. Bad blood seems to have arisen between the two men. About ten days before the killing, appellant, explaining the purchase of a new rifle, said he wanted to get rid of Hatfield; that Hatfield had stolen about forty of his chickens; that he got the rifle to “shoot people off the place and kill some stray dogs.” To another witness, a few days before Hatfield was killed, appellant said that Hatfield and Vanbebber were stealing his chickens and that Hatfield had to get off his place or' he would get him off. He added that he had a Winchester that would kill a man a half mile away, exhibited one pistol and declared he had another concealed on his person. To another witness appellant said on June 9, 1909', that three of his steers had been shot and he believed Hatfield did it; that he thought Hatfield had taken some of his chickens; that he had shot one Hatfield and he died afterwards. On the next day he made like accusations against Hatfield, inquired for him and said he was hunting him. On the same day appellant said to another witness: “I am on the track of my man and can get him. The thing I want to find out is who loaned the gun.. There is a certain class of people in this neighborhood you can’t reach by law; all the way you can reach them is with a gun from the brush and let them find it out; that’s the way to do it.” To another witness appellant said he thought he knew who shot his steers, and added: “I think he has gone to the Springs to see one of his aunts, the party that I think done it. I aim to get the s — n of a b — h when he comes back.” It appeared from the testimony of other witnesses that Hatfield had been in Excelsior Springs that week.

The night before he was killed, Hatfield and his family, which included his wife and two small children, stayed at the home of his mother, Mrs. Ida Hatfield, about five miles from the house in which he was living on appellant’s farm. He had arranged to move away from appellant’s farm on the following Monday. About nine o’clock on Sunday morning, June 13, 1909, Hatfield, his wife and children, his sister, a Mrs. Kauffman, and Dave Petty, started from Mrs. Ida Hatfield’s home to the home of the deceased on the Glasscock farm. In making the trip they passed appellant’s house, which stands near the public road. From this point they went west, thence south and thence east to the Hatfield home. The distance around the road from appellant’s house to the Hatfield home is about three-quarters of a mile, but in a direct line through the field the distance is almost exactly a quarter of a mile. Petty having turned off and gone to his own home, the other members of the party reached the Hatfield home about nine-thirty o’clock in the forenoon. Hatfield harnessed a horse for his sister, who proceeded to her own home. He then carried some wood into the house, kindled a fire, and shortly before eleven o’clock a. m. started to a guinea’s nest southeast of the house, leaving his wife in the garden, where she busied herself with getting vegetables for dinner.

In the meantime, a little after ten o’clock a. m., a neighbor named Fields went to his mail box, which stood in the road west of appellant’s residence, and in the field between the homes of appellant and' Hatfield saw appellant some three hundred and fifty yards away, walking southward toward the Wilkerson pasture, which lies south of and adjacent to the Hatfield cornfield and garden. Fields testified that appellant-had something in his hand which looked like a gun. He said in his testimony that he would not swear that it was a gun, but “it looked to be a gun.” Fields had also seen appellant a few minutes before at a point north of where he saw him the second time. Each time he was. seen by Fields appellant was walking in a southerly direction. The second tune the witness saw him, appellant was “down in the hollow.”

After leaving his wife in the garden, as above stated, Hatfield went southeast into the Wilkerson pasture. Shortly thereafter,- and at about eleven o’clock a. m., Mrs. Hatfield heard the report of a gun close at hand. She arose from the ground, where she was sitting beside a lettuce bed, and called her husband, but received no reply. He was not in sight, though he could have been seen by her if he had been standing. Thereupon, she hastened to the Barnett home, about a quarter of a mile northwest of the Hatfield home. Barnett returned to the Hatfield home with her and they went into the pasture which Hatfield had entered just before the firing of the shot.' At a point in this pasture about thirty feet south of the garden fence and two hundred feet from the house, they found the dead hodv of Clyde Hatfield, lying face downward in a pool of blood. The head was to the southwest.

An examination of the body ’indicated, according to the witnesses for the State, that a bullet had entered the body on the left side of the breast, near the shoulder or arm-pit, and had passed out on the right side of the breast, inflicting a wound that caused instant death. The clothing was driven into the wound on the left side.

There was no evidence of a struggle and no tracks were found near the body, except those made by Barnett and Mrs. Hatfield after the shooting, nor was there any indication that robbery had been the motive for the killing. No weapon was found, neither was the bullet found, although search was made for it.

The body was found in a “little open place which was surrounded by brush' and timber.” Behind a bush about forty feet northeast of the point where the body was found, several imprints of a portion of a man’s foot were discovered. These imprints were found on the east side of the bush. The bush was between the the imprints and the house, and the limbs of the bush, on the east side, were bruised and scorched.

It further appeared that a man could make his way from the point where appellant was seen by Fields, to the bush behind which the tracks were found, without exposing himself to the view of persons at the Hatfield house. Along the fence on the south side of the cornfield, footprints were found leading in the direction of the Hatfield home. These footprints were large, as were those near the bush.

After the finding of the body the whole countryside flocked to the Hatfield home. Appellant, though living but a quarter of a mile away, did not go to the Hatfield home until that night, when he went in obedience to a subpoena to attend the inquest. Many of the people who were at the Hatfield home in the afternoon must necessarily have passed appellant’s house in going to the Hatfield home. It also appeared that appellant did not attend the funeral.

Appellant’s sister-in-law, who was visiting at his home on the day of the killing, testified that she, appellant and appellant’s wife were the only persons' at appellant’s home on that day; that they had breakfast about five o’clock a. m., and that about nine o’clock a. m., she retired to an upstairs room; that about eleven o’clock a. m., or a little later, appellant’s wife came into the room; that after a short conversation with appellant’s wife, witness went down stairs and saw appellant there, dressed, except as to his coat and shoes. At about 12:15 o’clock p. m., other witnesses, driving through the field from appellant’s place to Hatfield’s, saw appellant in his field about a hundred and fifty or two hundred yards south of his house.

In the afternoon while appellant was riding east along the road which passed his house, he was asked by a witness if he had heard of the shooting of Clyde Hatfield. He replied that it was a surprise to him and said that was the first he had heard of it. In the same conversation appellant said he had seen Hatfield that morning. To another witness, appellant said he had first heard of Hatfield’s death when he was getting ready to go to salt his cattle at the Ray farm. About a week after the killing, appellant stated to a witness that he went to bed about eight o’clock on the morning Hatfield was killed and did not get up until one-thirty o’clock that afternoon. In August, 1909, appellant had a sale of his personal property.

In a conversation with a witness, in the latter part of August, 1909, appellant, commenting upon the testimony given bv Mrs. Hatfield at the preliminary examination, said that she fell down when she said that the shot came from the north; that it didn’t come from that direction. In the same conversation, appellant also stated that Clyde Hatfield had stolen chickens from him and that Gus Vanbebber had hauled them off; that Clyde Hatfield was a G — d d — d s — n of a b — h’and the community was better off without him; that if he did kill him, they couldn’t prove it. Speaking of Vanbebber, he said he would get that other s — n of a b — b. To another witness, speaking of Sam Fields, who had testified at the preliminary examination, appellant said he thought Fields would run off; that Fields knew he was under a death sentence if he testified to what he did at the other trial.

The evidence introduced on behalf of the appellant tended to show the following facts:

That the entrance of the bullet was on the right side of Hatfield’s body and the exit on the left side. That on the day Hatfield was killed there was no fence in the field south of the Glasscock house, at the point where Fields testified he saw Glasscock, as stated by Fields in his testimony. ' That 'there had previously been a fence there, but it had been removed before the date of the killing of Platfield. That by reason of brush along the road, at the point from which Fields testified he observed appellant going south through the pasture,-the view was so obstructed that it would have been difficult to have seen a man at the place designated by Fields. That at the Hatfield home, on the afternoon of the killing, a witness named Hyder, addressing several men in a general way, asked: “Did any one see George Glasscock to-day, coming here or going away from here?” That in response to that inquiry, the witness Fields said: “If any one did, no one has heard of it.” That the testimony given by Mrs. Hatfield at the trial, in which she testified that the report of the shot came from the south, was contradicted by her testimony given at the'preliminary examination, where she testified that the report came from the north. That after Mrs. Hatfield had testified at the preliminary examination, the prosecuting attorney, in his argument, in the presence and hearing of Mrs. Plat-field, stated that she had made a mistake as to the direction from which the.sound of the shot came.

It was also shown that at the time the appellant was said by the witnesses for the State to have stated that Hatfield was at “ The Springs ’’ and that he would get film when fie came back, appellant knew that Hatfield bad returned from his visit at Excelsior Springs. That after Hatfield returned from Excelsior Springs, and only a day or two before the date of the alleged statement and threat, appellant, in company with several men, had seen Hatfield and had spoken to him at the town of Georgeville. Neither appellant nor his wife testified as witnesses in the case.

In rebuttal, the State introduced evidence in support of the reputation of the witness Fields for truth and veracity, also evidence contradicting that which had been introduced by the defendant to contradict Fields, and also some further testimony to show that the entrance of the bullet was on the left side of Hatfield’s body. This was the substance of all the evidence.

I. Appellant first assigns as error the action of the court in overruling the demurrer to the indictment. The demurrer is general and alleges but the one ground that the indictment does not charge the commission of any offense under the laws of Missouri.

The indictment contains three counts and each count charges the offense in accordance with precedents which have received the approval of this court, and the demurrer was properly overruled. [State v. Hudspeth, 150 Mo. 12; State v. Gray, 172 Mo. 430; State v. Bailey, 190 Mo. 257; State v. Heath, 221 Mo. 565; Kelley, Crim. Law and Prac., sec. 474.] Indeed, as we understand appellant’s assault upon the indictment, it is not because of defects appearing upon its face and therefore properly raised by demurrer, but because of irregularities in the impaneling of the grand jury and in the qualifications of its members; questions which are raised in this record, if at all, by the plea in abatement, motion to quash, and the evidence introduced in support thereof.

II. The defendant filed a plea in abatement, also a motion to quash the indictment, both of which assail the indictment upon the same grounds, namely, because the statutory requirements in the ordering and impaneling of the grand jury were not complied with, and also because of the failure of one or more of the members thereof to properly qualify to serve on that body.- This contention, so strongly urged by distinguished counsel for appellant, is wholly without merit.

Challenges of a grand jury or of its members are of two kinds: to the array and to the polls. The law upon the subject of the right of challenge in the case of -a grand jury is stated in Bishop’s New Criminal Procedure (4 Ed.), section 876, as follows: “To the array — to the polls. — The challenge is either. The former is for some imperfection in the constitution of the panel; the latter, for some disqualification of a juror.”

Section 5067, Revised Statutes 1909, provides: “Any person held to answer a criminal charge may object to the competency of anyone summoned to serve as a grand juror, before he is sworn, on the ground that he is the prosecutor or complainant upon any charge against such person, or that he is a witness on the part of the prosecutor and has been summoned or bound in a recognizance as such; and if such objection be established, the person so challenged shall be set aside.”

Section 5068 provides: “No challenge to the array of grand jurors, or to any person summoned as a grand juror, shall be allowed in any other cases than such as are specified in the last section.”

It is disclosed by the plea in abatement, the motion to quash, and the evidence offered in support thereof, that no objection was made to any member of the panel before, the jury was sworn, upon either of the grounds enumerated in the first of the above sections, or upon any other ground, and a challenge upon a ground not authorized' in the first section, either to the array or to the polls, is expressly prohibited by the second section.

Discussing the intention of the Legislature in the enactment of the foregoing statutes, this court, more than fifty years ago, in the case of State v. Bleekley, 18 Mo. l. c. 431, said: “They supposed all objection to juries, either grand or petit, must, under the laws of the State, be made at the time when about to be sworn, and for the causes in the statutes mentioned. . . . The defendant is not permitted to question the manner of summoning the grand jury; such a cause on such a subject, is not one of the statutory objections allowed to grand juries or to a grand juror in our courts, and none other can avail. ’ ’ [See, also, State v. Crane, 202 Mo. 54; State v. Sartino, 216 Mo. 408.]

But even if the objections made against the grand jury and its members in the plea in abatement and the motion to quash were wéll founded and meritorious in the trial court, they could not be of avail to the defendant in this court for the reason that the plea and motion, which are matters of exception,, are not preserved in the bill of exceptions and, therefore, are not before this court for review. The plea in abatement and the motion to quash are found in the record proper, but are not included in the bill of exceptions. The evidence in support of each and the rulings of the court thereon are preserved in the bill of exceptions, but that is not enough, for the plea and motion have no place in the record proper, and it is as essential that they be incorporated in the bill of exceptions as in the ease of motions for a new trial and in arrest of judgment. [State v. Little, 228 Mo. 273; State v. Earll, 225 Mo. 537; State v. Finley, 193 Mo. 202; State v. Hicks, 160 Mo. 468; State v. Wear, 145 Mo. 162.]

III. The evidence for the State tended to show that Clyde Hatfield was murdered about eleven o ’clock on Sunday morning. The news soon, spread through the neighborhood and within, an hour a hundred people had assembled at the scene of the crime. They came on horseback and in vehicles, many of them passing on the public road near the defendant’s home. The defendant did not go to the Hatfield home, although he lived but a quarter of a mile distant. In the afternoon he rode to his pasture in the other direction. He did not attend Hatfield’s funeral, nor did he go near the home of the deceased until compelled to attend the inquest under subpoena.

Appellant contends that the court committed error in admitting, over the defendant’s objection, evidence tending to prove the foregoing facts. In support of this alleged error, appellant calls attention to the fact that the State had offered evidence to show the existence of ill-will between the appellant and the deceased, and appellant says: “Granting it to be true, then it would not be expected that, upon the death of Clyde Hatfield, Glasscock should go over there and pretend profound sorrow; to have done so would have been a badge of suspicion. ’ ’

The conduct of the accused after the crime, and his failure to go to the Hatfield home along with his neighbors even after he knew of the homicide, was competent evidence tending to prove a consciousness of guilt, and the court did not err in overruling the defendant’s objections to such testimony.

The theory upon which such evidence is admissible is that consciousness of guilt is generally indicated by the unnatural acts and conduct of the guilty after the commission of the crime. And while failing to go to the place of the crime, as the neighbors did, was unnatural and a circumstance tending’ to prove the guilt of the defendant, yet if he had been upon the ground promptly and, notwithstanding the pre-existing ill-will, had “professed profound sorrow,” his conduct might have been equally unnatural and entirely competent for the consideration of the jury in determining the question of his guilt or innocence. Regardless of the relations between the defendant and the deceased, while the latter was living, when it became known that the deceased had been murdered on the defendant’s farm, in the daytime, leaving a widow and two young children, defendant’s conduct, in the light of human experience, is not easily explained on the theory of the ill-will which must have ended, at least so far as deceased was concerned, with his death. Neither is it probable that an innocent neighbor would, under such tragic circumstances, stop to speculate as to. whether his conduct in going to the scene of the crime and rendering such assistance as was in his power, in caring for the dead or in apprehending the criminal, would be a “badge of-suspicion.” In any event, if the evidence of the ill-will existing between the defendant and the deceased was a satisfactory explanation of the defendant’s conduct, the latter was given the full benefit of it, and it was a question for the jury to consider with the other circumstances of the case.

Witnesses Fields and Swofford testified in behalf of the State as to where the defendant was at certain times on the morning of the day of the homicide. Another witness for the State testified as to statements made by the defendant to the effect that he was not at the places mentioned as testified to by the witnesses Fields and Swofford. Upon this state of facts, appellant contends, as we understand it, that as the State had located the defendant by the testimony of the witnesses named, it was not competent for the State to prove statements and declarations made by tbe defendant contradictory of tbe' testimony of said witnesses. Whether the testimony of tbe witnesses for the State furnished a sufficient basis for tbe defense of alibi or not, tbe State bad tbe undoubted right to prove that the- defendant made false statements as to bis whereabouts at tbe time of tbe homicide, as a circumstance in tbe case tending to prove consciousness of guilt. Tbe principle of law applicable in such cases is stated as follows: “Tbe fact of tbe utterance of falsehoods by tbe accused to exculpate himself, tbe falsehoods being satisfactorily proved, is relevant to show a consciousness of guilt.” [12 Cyc. 398; State v. White, 189 Mo. l. c. 351.]

TV. Eleven witnesses for the State testified to threats of tbe most incriminatory character made by the defendant against tbe deceased shortly before tbe murder, also evidence as to profane and vile epithets spoken by tbe defendant of tbe deceased, even after .the latter’s death.

It is stated in appellant’s brief that this evidence was admitted “over tbe objections of tbe defendant.” We have examined tbe testimony of each of tbe witnesses named, and have failed to find that any objection was made to tbe admission of such testimony. Therefore, tbe point now'made as to tbe admissibility of such testimony is not before this court for review and we shall not notice it further or tbe argument of tbe appellant thereon, except to state that we think this testimony was not only competent, but that- it supplied tbe most cogent proof of tbe motive for tbe crime.

V. On tbe question of alibi tbe court, of its own motion, gave tbe following instruction:

‘ ‘ One of tbe defenses interposed by tbe defendant in this case is what is known as an alibi'; that is, that defendant was not present at tbe time and place of tbe alleged offense, but was elsewhere. If you find from the evidence in the case that the defendant was elsewhere than at the place of the alleged offense, then you should find the defendant not guilty. The defendant is not required to establish this defense beyond a reasonable doubt, but if from the whole evidence you have a resonable doubt of the defendant’s presence at the commission of the alleged offense, you must give him the benefit of that doubt and acquit him.”.

Appellant complains of error in the giving of the foregoing instruction, not because an instruction on the subject of alibi was given by the court, for the defendant had requested such an instruction, but because the jury are instructed that “the. defendant is not required to establish this defense beyond a reasonable doubt, but if from the whole evidence you have a reasonable doubt of the defendant’s presence at the commission of the alleged offense, you must give him the benefit of that doubt and acquit him.”

The instruction fairly and correctly states the law upon the defense of alibi and does not materially differ from instruction “N” asked by the defendant upon the same subject. The language in the instruction as given by the court, of which complaint is made, and not included in instruction “N” requested by the defendant, is found in an instruction upon the subject of alibi recently approved by this court. [State v. Barton, 214 Mo. 316; State v. Cushenberry, 157 Mo. 168 ; State v. Bryant, 134 Mo. 25-2.]

The only basis for an instruction upon the subject of alibi was the evidence introduced by the State tending to prove that the defendant made false statements as to his whereabouts, about the time of the commission of the crime, the evident purpose of such testimony being to show the consciousness of guilt of the accused, as a circumstance in the case. No evidence was offered upon this defense by the defendant. Under this condition of the evidence, the law relative to the defense of alibi, as given by this court in the case of State v. White, 189 Mo. l. c. 351, is peculiarly in point. The court said: "The defense of an alibi was not interposed in this cause, and no testimony was offered by the defendant on that subject. The testimony of the State could not have furnished the basis for an instruction upon the defense of an alibi, for the reason that the statement of the defendant made to witnesses, introduced in evidence, that he was not present at the scene of the murder, was for the sole purpose of showing its falsity, and upon the theory that such false statement was a circumstance for the consideration of the jury.”

However, as an instruction upon the defense of alibi was asked by the defendant, and such an instruction, free from objection, was given by the court, it is obvious that appellant has no just ground of complaint, and the subject need not be further pursued.

VI. Twenty-one instructions were given to the jury, eight of which were given at the request of the State, five at the request of the defendant, and eight by the court of its own motion. The only instruction given of which complaint is made in this court is the instruction upon the defense of alibi already considered. Therefore, so far as the instructions are concerned, it only remains to be considered whether the court erred in refusing instructions “A” to “P”, inclusive, asked by the defendant, and whether the court erred in not fully instructing the jury on the essential elements of the crime charged and the defense interposed thereto.

Several of the refused instructions were given by the court in modified form, and were as favorable to the defendant as he was entitled to. Others were upon subjects which were fully covered by instructions given and which declared the law in accordance with the decisions of this court. It is sufficient to say upon this point that we have carefully compared the refused instructions with the instructions given, and we are satisfied that the court fully instructed the jury in accordance with the requirements of the law, and that there is no merit in defendant’s complaint.

YII. Upon the request of the defendant, the court reporter took down the entire closing address of the prosecuting attorney to the jury, and the same is set forth in extenso in the bill of exceptions. During the course of the argument of the prosecuting attorney, many objections were made by counsel for defendant, on the ground of improper conduct in the remarks made and the language used. Some of the objections thus interposed were sustained by the court and the prosecuting attorney, in such instances, was properly rebuked and admonished. The remarks to which objections were made, but not sustained, are contained in the 15th, 16th, 17th and 18th grounds of the motion for a new trial. Some of the remarks of which complaint is thus made were in response to statements and challenges made in the argument of counsel for defendant.

The prosecuting attorney, in some respects, has an advantage over counsel for the accused in the presentation of the cause to the jury, and for that reason and because of the limits prescribed by the law, courts jealously guard the rights of the defendant and will not hesitate to grant a new trial on that ground alone when it is made to appear that the representative of the State, in his address to the jury, directly or indirectly, overstepped the bounds of legitimate argument, and by so doing deprived the .accused of any right with which the law has clothed him. In this case the address of the prosecutor was an ingenious, strong and most forceful appeal to the jury, and while at certain points, when objections were made but not sustained, a near approach was made to the limits of what was' permissible in argument, yet, after a full consideration of the subject, wé cannot say that he was. guilty of misconduct prejudicial to the rights of the defendant.

VÍII. It is finally contended that the- verdict is not supported by substantial evidence.

A full statement of the material facts upon which the State relies to sustain the verdict, accompanies this opinion; and, without repeating them here, we shall dispose of this contention by stating our conclusion that the evidence'is amply sufficient to support-the verdict of the jury.

The case was ably tried and hotly contested in the trial court. It has been fully and ably presented to this court. The defendant has been accorded and has availed himself of every right guaranteed by the law to a person accused of-crime, and as the record is free from prejudicial error the judgment should be affirmed. It is so ordered.

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


author: FERRISS, J.

text:
    THE STATE v. TURNER S. THORNTON, Appellant.
    Division Two,
    February 7, 1911.
    1. CHILDREN: Father Refusing to Support: Penal Statute: Necessary Food. The word's “necessary food” used in the statute (R. S. 1899, sec. 4492) providing that “if any father of an infant child under sixteen years of age, born in lawful wedlock, shall, without lawful excuse, refuse or neglect to provide for such infant neeessary food, clothing and lodging, he shall, upon conviction, be punished by imprisonment,” etc., mean an article the child actually needs; it is not enough that it be an article classed per se as necessary. The statute has in view the welfare of the child, and its legitimate object is to secure to infants of tender years proper care, that is, to prevent destitution.
    2. -: -: No Lack of Necessary Food Shown. Where defendant’s wife had left him and gone to her parents, taking their two infant children, and they were by them provided with all necessary food, clothing and lodging, and were well taken care of, the mother refusing to permit him to have them in his custody and her parents refusing to treat with him about their care, he cannot be convicted for failure to provide the children with necessary food, clothing and lodging, for those things they already have, and the statute was not designed to punish him for failure to provide for them under such circumstances.
    Appeal from Boone Circuit Court . — Eon. N. D. Thurmond, Judge.
    Reversed.

      McBaine & Clark and W. H. Rothwell for appellant.
    (1) No offense against the laws of Missouri is charged by tbe information, and the proof showed that the appellant was guilty of no crime under the laws of this State. R. S. 1909, secs. 4492 and 4495; R. S. 1899, secs. 1857 and 1861; Laws 1909, p. 450; State v. Koonse, 123'Mo. App. 655; Dalton v. State, 44 S. E. (Ga.) 977; Williams v. State, 55 S. E. (Ga.) 480; Mays v. State, 51 S. E. (Ga.) 503; Ritchie v. Commonwealth, 64 S. W. (Ky.) 979; People v. Reubens, 92 N. Y. Supp. 121; People v. Joyce, 98 N. Y. Supp. 863. (2) The proof on the part of the State showed that whatever offense was committed by the appellant, was committed prior to the time the Act of June 4, 1909, became a law, and that to convict the defendant under the Act of 1909, Sec. 4492, R. S. 1909, would be to construe the Act of 1909 as ex post facto in its operation and effect. R. S. 1899, sec. 1861; Bull v. State, 80 Ga. 705; Calder v. Bull, 3 Dali. 386; State v. Kyle, 166 Mo. 287; Kring v. Missouri, 107 U. S. 221; 8 Cyc. 1027; Laws 1909, p. 647, see. 15, and p. 644, sec. 7; Const, of Mo., art. 4, sec. 36; State ex rel. v. McIntosh, 205 Mo. 616; Whittaker v. Ins. Co., 133 Mo. App. 667; State ex rel. v. Edwards, 136 Mo. 360*; Westport v. Smith, 68 Mo. App. 63; 36 Cyc. 1205-1206; State v. Dierkes, 211 Mo. 568. (3) Appellant’s refused instructions should have been given, by the trial court. R. S. 1900, sec. 4492; also, cases cited under point 1. (4) Instruction A given at the request of the State is erroneous in that it fails to define “lawful excuse.” State v. Greenup, 30 Mo. App. 303; State v. Strong, 153 Mo. 540; Carr v. State, 104 Ala. 4; State v. Brinkman, 40 Mo. App. 289; Ayers v. Riailroad, 124 Mo. App. 465.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) The information charges the offense in the language of the statute. R. S. 1909, sec. 4492. When the act defines the offense, it is sufficient to charge the offense in the language of the act. State v. Davis, 70 Mo. 464; State v. Newberry, 43 Mo. 432; State v. Ad-cock,'65 Mo. 590'; State v. Watson, 65 Mo.'429; State v. Brinkman, 40 Mo. App. 284; State v. Larger, 45 Mo. 510. (2) It is no defense that the children were not in the custody of the appellant. If he was entitled to their custody, there was a way for him to obtain them. The doors of the court were open to him. The father must maintain the child, even when the child is in the custody of the mother. Viertel v. Viertel, 212 Mo. 562; Keller v. St. Louis, 152 Mo. 596; Myers v. Myers, 91 Mo. App. 151. (3) The evidence was amply sufficient to support the finding of the jury. The jury were the triers of the facts and the weight of evidence and their finding should not be disturbed. State v. Tetrick, 199 Mo. 100; State v. Mathews, 202 Mo. 148. (-4) The instructions fully and fairly presented .the law of the case, under the evidence. They were sufficient upon reasonable doubt, and defined the offense, and no legal objection can be made against them. Instruction 6 was more favorable to appellant than he was entitled to. It told the jury that if appellant was prevented from providing support for the children by reason of interference on the part of the mother or father of his wife, they must acquit appellant, and also that appellant was under no legal obligations to furnish money to his wife for the purpose of providing food, clothing and shelter for his children. The law is that a father must support his children, and if he has not their custody, it is his duty to obtain same, if he so desires. (5) Instruction 4 was properly refused. It told the jury that appellant did not have to provide for his children if his wife refused to give them to him. This is not the law. Viertel v. Viertel, supra. Instruction 5 was refused for the reason that it would have told the jury that if the wife retained the children in her own custody and they received sufficient food, clothing and shelter, they should acquit the defendant. This instruction would simply mean that the mother, who had the custody of the infant children, must fail to furnish food, clothing or shelter for the infants before the law would convict appellant; hence, the instruction was properly refused. Appellant did not request the court to instruct upon all the law of the case at the time. (6) Appellant complains, as one ground for his motion for new trial, that he is deprived of his constitutional rights as provided in sections 15 and 30 of article 2 of the Constitution of Missouri, because Sec. 1857, R. S. 1899', was amended by the Act of 1909, p. 450. This prosecution was filed in April, 1910, and the instructions to the court limited the proof between the dates of November 2, 1909, and February 28, 1910. The information was based upon Sec. 4492, R. S. 1899, as amended by the Laws of 1909. This amendment went into effect August 16, 1909, and one of the infant children was born in October, 1909. The evidence in this prosecution was confined to the time after the younger child was born. There is no evidence in the record as to what occurred, or what appellant did, prior to the birth of the younger child, with the exception that he and his wife separated in January or February, 1909: Bull v. State, 80 Ga. 705. Appellant cannot secure to himself the constitutional rights provided by sections 15 and 30 of article 2 of the Constitution, because the evidence reveals that the whole case was commenced, and evidence therein adduced, after the Act of 1909 had become effective.
   FERRISS, J.

Defendant was convicted at the April term, 1910, of the circuit court of Boone county, upon an information which reads as follows:

“L. T. Searcy, prosecuting attorney within and for the county of Boone, in the State of Missouri, informs the court, that Turner S. Thornton, on the 2d day of November, 1909, at the said county of Boone, and State of Missouri, being then and there the father of two infant children, born in lawful wedlock, under the age of sixteen years, to-wit: Margarite Thornton, aged two years, and Rudolph Thornton, age five months, feloniously, unlawfully, willfully and without lawful excuse, did refuse and neglect to provide for said infant children necessary food, clothing and lodging, and the said Turner S. Thornton, in the county and State aforesaid, from the second day of November, 1909, to the 28th day of February, 1910, and thence hitherto, did feloniously, unlawfully, willfully and without lawful excuse refuse and neglect to provide necessary food, clothing and lodging for his said infant children aforesaid, against the peace and dignity of the State.”

This information is based upon section 4492, Revised Statutes 1909, which provides: “If any mother of any infant child, under the age of sixteen years, or any father of any such infant child, bory 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 gnd purposely assault such infant or apprentice, 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 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. ’ ’

The following facts are practically conceded:

' The defendant, Turner S. Thornton, when about nineteen years old, married Metta Baldwin on October 21, 1907. The couple lived together until February, 1909, when they separated, the wife returning to her father’s house, where she continued to live up to the date of the trial; the husband returning to the home of his mother and remaining there. The wife took with her to her father’s home the one child which had been born of the union, a girl, Margarite. A second child was born to her in her father’s house in September, 1909. The children were supplied by the wife’s father, up to the date of the trial, with all necessary food, clothing and lodging, and as testified by the mother, “were well taken care of.” From and after the separation in February, 1909, the defendant contributed nothing to the support of the children. Defendant was an average laborer, earning abont one dollar a day. He on one occasion sent for tbe baby, when it was three or four months old, but was refused. He made some attempt to meet his wife and her father to talk over matters with a view to án arrangement about the children, but the effort failed.

There was some evidence that defendant and his mother wished to take the girl to live with him and his mother. The evidence for the State shows that the wife refused to give up the children. It is evident from the testimony that the defendant refused to support the children so long as they were retained in the custody of the mother. It is equally clear that the mother and her father did not propose to recognize any right in the father except the right to contribute to the support of the children, the mother to retain the exclusive custody and control.

Whether this conviction can be sustained depends upon the construction of section 4492, set out above. If, as contended by the defendant, it is a crime to fail to provide food, clothing and lodging, only when they are actually lacking, and the failure to so provide shall endanger the life or health of the infant child, then it is clear that the evidence does not sustain the charge. Tbe State proved that the children were amply supplied with food, clothing and lodging by. the wife’s father, who seems to have been in full sympathy with his daughter’s purpose to keep the children in his household, and entirely away from their father. If, on the other hand, as contended for by the State, it is a crime under this statute for the father to refuse to supply food, clothing and lodging, regardless of whether they are supplied from other sources, and regardless of whether life or health is endangered, if mere failure to furnish support is a crime, then the evidence sustains the charge. The defendant admits that he did not support the children.

The statute penalizes the refusal of the father to supply necessary food, etc. • Under the law pertaining to necessaries, a necessary article is one which the party actually needs. It is not euough to show that the article is per se classed as necessary, such as food and clothing. It must also be actually needed at the time.

The law will imply and enforce a contract by an infant to pay for necessaries out of his estate. This because “otherwise he might sutler for the want of them.” [Parsons on Contracts (9 Ed.,), p. 355.] Or, as another writer puts it, “based on the necessity of their, situation.” [Tyler on Infancy, p. 107.] The. fundamental principle of the law of infancy is this: It is essential to the welfare of the State that infants be fed, clothed, lodged and educated; and also that the State shall not be burdened with their care. So long as infants are properly cared for, the State is not interested as to the source from whence the supplies come. If an infant has an estate, the law will compel him to support himself out of his estate, provided he is not otherwise supplied; but the law will not impose upon his estate a contract to pay for articles which he does not in point of fact need, because he is already supplied, although the articles may be per se regarded as necessary to his proper nurture. So with regard to the custody of minor children, this belongs primarily to the father, but if the welfare of the child requires it, the court will award the custody to the mother; the primary consideration being the good of the child.

We apprehend that the enactment of the penal statute in question was inspired by the same idea, namely, the welfare of the child,'and upon the grounds of public policy adverted to above.

The Legislature did not enact this law for the purpose of punishing parents for failure to do their duty as such. Such a purpose would smack too strongly of paternal government. The only legitimate object of the statute is to secure to infants, who are in future to become citizens of the State, proper care; such care as is necessary to protect their lives and health. In other words, to prevent destitution.

It follows from the foregoing that if infant children are receiving necessary food, clothing and lodging from any source, there is no occasion for the State to interfere by penal law or otherwise.

Construing section 4492 in the light of the above reasoning, and as applied to the facts in this case, it .denounces a penalty for refusal or neglect to supply an infant child with such food, clothing and lodging as it actually needs. Upon the showing made by the evidence for the State, the instruction (No. 1) asked by the defendant at the close of the State’s case should have been given.

Cases analogous to this have been passed upon in Georgia and Kentucky.

The statute construed by the Supreme Court of Georgia is as follows: “If any father shall willfully and voluntarily abandon his child, leaving it in a dependent and destitute condition, he shall be guilty of a misdemeanor.” [Code St. of Ga., vol. 3, sec. 114.] The case of Dalton v. State, 118 Ga. 196, reversed a conviction under this statute. The court said: “The evidence adduced on the trial showed that the father was willing for the wife to leave him and return to her relatives. The child, which she took with her, was between four and five years of age, and was, of course, dependent. The evidence, however, does not disclose that the child was destitute at the time of the abandonment or had even become destitute up to the time of the trial. So the case turns upon the question whether the father is guilty if he fails to provide for his child after the separation, even though the child may he abundantly supplied with all .the necessaries' of life. While it is true that a father is under a moral and legal obligation to support his minor child, it is not also .true that, if he fails in his duty, he may be convicted under the above section of the Code although the child is fully provided for by .others. The father cannot be convicted unless it be shown that the child was not only dependent, but in a destitute condition. If it is not destitute, but is amply supplied with all necessaries, the father cannot be. convicted. It is true he may have violated his moral and legal obligations in abandoning the child at all; but as criminal statutes must be construed strictly, we are constrained to give this statute this interpretation.”

The Kentucky statute provides: “A parent or other person having the care or custody, for nurture or education, of a child under six years of age, who willfully deserts the child in a manner showing a reckless disregard to life or health, and with the intention wholly to abandon it, is punishable by imprisonment in the penitentiary for not more than three years. ’ ’ [Sec. 329, Stat. Ky. 1894.] Passing upon this statute in Richie v. Commonwealth, 44 S. W. 979, the Supreme Court of Kentucky found the fact to be that the parents had separated, leaving one child, about one year old, in the care and custody of its mother and grandmother, who lived together, and that after the separation it was carefully provided for by them, but that the accused had contributed nothing to its support. The court said: ‘ ‘ Certainly it cannot be claimed that leaving a child less than one year old in the custody and care of its own mother shows a reckless disregard 'either to its life or health. The trial judge seems to have proceeded upon the idea that the mere failure to provide for the support of a child under six years of age rendered the defendant liable to the penalty denounced by the statute. There is no testimony in the record conducing to show the guilt of the accused, and we think the circuit judge erred in not directing the jury to find the defendant not guilty.”

The views above expressed by us dispose of the case, and the discussion of other questions raised is unnecessary. The judgment is reversed, and the defendant ordered to be discharged.

Kennish, P. J., and Brown, J., concur.


author: BROWN, J.

text:
    THE STATE v. ARTHUR HOAG, Appellant.
    Division Two,
    February 7, 1911.
    1. EVIDENCE: No Objection. If no objection was made to questions propounded by the State to defendant’s character witnesses, the court will not consider an assignment that such questions were improper.
    2. -: Statements Made by Defendant. Defendant cannot testify to statements made by him to his wife after his arrest.
    3. ATTEMPT TO CARNALLY KNOW: Sufficient Evidence: Improbability. The prosecutrix was thirteen years old and went, about ten o’clock of the forenoon, to the church where defendant was the janitor. She testified that he sat down by her, showed her some pictures, put his hand under her dress and upon her sexual organ. The evidence is reviewed and held sufficient, if believed, to sustain a verdict of guilty of assault with intent to carnally know the little girl; and although the assault, if committed at all, was committed at a time when defendant knew that other persons would in a few minutes be on the scene, and that he could not consummate the offense without being discovered, it was nevertheless the province of the jury to decide whether the witnesses told the truth.
    ‘1. -: No Instruction for Common Assault. If the jury believed the testimony of the little girl, that defendant placed his hands under her dress in a lascivious manner, and yet, from the surrounding circumstances that the place was a churcb and people were about to arrive, did not believe he intended to have sexual intercourse witb her at that particular time, they would have been justified in finding bim guilty of common assault; and it was reversible error for tbe court to fail to give an instruction on tbe law of common assault, although they found bim guilty of an assault witb intent to carnally know.
    Appeal from Cass Circuit Court. — Eon. Nick M. Bradley, Judge.
    Reversed and remanded.

      Jas. T. Burney and A. A. Whitsitt for appellant.
    (1) In order to constitute the offense charged, there must be an assault, and it is equally clear that the accomplishment of the act must be intended by the assault, and such intent must be shown by such assault and the attending circumstances. State v. Riseling, 186 Mo. 530; State v. Priestly, 74 Mo. 24; State v. White, 52 Mo. App. 285; State v. Harney, 101 Mo. 470; State y. Hayden, 141 Mo. 311; State v..D'alton, 106 Mo. 463. (2) The charge in this case is of assault with intent then and there feloniously to unlawfully rape and carnally know the prosecuting, witness, she being under fourteen years of age, to-wit, of the age of thirteen years. But there must be suGh force in making the assault, together with other circumstances in the case, as will demonstrate the purpose and intent of the party charged, to have carnal knowledge of a female, though she be under the age of consent. Crommes v. State, 53 S. W. 882; Harden v. State (Tex. Civ. App.), 46 S. W. 808. (3) There must be substantial testimony establishing the guilt, and courts will refuse to permit convictions to stand because of the utter improbability of the testimony in the light of the conceded circumstances. State v. Groodale, 210 Mo. 275. (4) The presumption of innocence is not overcome by strong suspicion or conjecture. Tbe law requires proof beyond a reasonable doubt. State v. Crabtree, 170 Mo. 642. (5) The evidence being insufficient to support a verdict for assault with intent to rape, it was error to give that instruction or submit that issue. State v. White,. 52 Mo. App. 285; (6) Notwithstanding the indictment was for a felony, the defendant may be convicted of a simple assault, and in the event there 'was evidence to justify or upon which to base common assault, it was the duty of the court to submit that view of the case by proper instruction on common assault, and failure to instruct constitutes error. (7) Where there is not sufficient evidence to support a verdict of assault with intent to rape, and it would support one for common assault, it is error to submit that issue by instruction, as its tendency is to prejudice the jury against defendant and prevent his having the fair trial to which he is entitled. State v. White, 52 Mo. App. 285; After the attempt to impeach the defendant by his statement to State’s witnesses, it was then competent for bim to-show his prior consistent statements and the court erred in refusing to permit him to do so. State v. Grant, 79 Mo. 113; State to use v. Farrel, 6 Mo. App. 581; State v. Hatfield, 72 Mo. 518; State v. Welehon, 102 Mo. 17. (8) And where it is sought to discredit defendant by contradictory statements, he may be sustained in his direct evidence by showing that he made to another person statements -in harmony with those made by him on his direct examination. State v. Sharp, 183 Mo. 715. He was entitled to show his own declarations to his wife, his mother, Wilbur Hoag, and others to the same effect.

      Elliott W. Major, Attorney-General, and John M\ Dawson, Assistant Attorney-General, for the State.
    (1) At common law where there was no penetration and the crime of rape was not therefore committed, the accused- might still be guilty of an assault with intent to rape, and this at common law constitutes a misdemeanor. Rookey v. State, 70 Conn. 101; Ma-honey v. People, 13 Mich. 39; State v. Peak, 130 1ST. C. 711; Lights v. State, 21 Tex. App. 308; Stout v. Com., 11 S. & R. (Pa.) 177. . Under the Missouri statute,, assault with intent to rape is made a felony. R. S. 1909, secs. 1181 and 1182. The elements of the offense contain all the elements of assault. Miles v. State, 93 Ga. 117; State v. McDevitt, 69 la. 549; State v. Smith, 80 Mo. 516; State v. Shroyer, 104 Mo. 111. (2) ' The intent with which the assault is committed must be the specific intent to rape. State v. Dalton, 106 Mo. 163; State v. "Whitsett, 111 Mo. 202; State v. Scholl, 130 Mo. 396; Reg. v. Wright, 4 F. & F. 967. The intent is to be determined from the circumstances surrounding the transaction. It may be implied from the conduct of the accused, and is for the determination of the jury. The evidence must show the intent of the accused beyond a reasonable' doubt. Bill v. State, 5 Humph. (Tenn.) 155; People v. Johnson, 131 Cal. 511; State v.' McCune, 16 Utah 170. The appellate court should not reverse the finding of the jury as to the existence of an intent to rape. State v. Prather, 136 Mo. 20; State v. Ed'ie, 117 Mo. 535; State v. Alcorn, 137 Mo. 121; Reynolds v. People, 11 How. Pr. (N. Y.) 179; State v. Sullivan, 68 Yt. 510; State v. Kendall, 59 Kan. 238. Yet the appellate courts have reversed convictions on the ground that the evidence was insufficient to prove such intent. State v. Owsley, 102 Mo. 678; Skinner v. State, 28 Neb. 814; Jacques v. People, 66 111. 84; State v. Biggs, 93 la. 125; State v. Chapman, 88 la. 254; Green v. State, 67 Miss. 356; Blanett v. State, 4 Ohio Cr'. Dec. 32; Moore v. State, 79 Wis. 546. (3) Instruction 6 described the word assault as used in all of the instructions of the court, as “any unlawful physical force, partly or fully put in motion, creating a reasonable apprehension of immediate physical injury to a human being;” This instruction was properly refused. This was not such a definition of the word assault as should be applied in a cause of this kind. The word assault in connection with this crime must be considered in the light of all the evidence. It is true that an attempt to commit rape in some jurisdictions is distinct from an assault with intent to rape, as in the latter offense the element of assault is essential to its consummation. Reg. v. Martin, 9 C. & P. 213; Lewis v. State, 35 Ala. 380'; People v. Gardner, 98 Cal. 127; Givens v. Com., 29 Gratt. (Ya.) 830; 23 Am. and Eng. Ency. Law, p. 686. (4) The evidence was sufficient to sustain the verdict. The prosecutrix stated that the appellant had placed his hand under her dress, and that when he saw John Dempsey approaching, he refrained from the further attempt of committing his purpose. Furthermore, his statements made to Roblett and the sheriff indicated that the prosecutrix had told the truth. State v. Underwood, 49 La. Ann. 1549; State v. Alcorn, 137 Mo. 121.
   BROWN, J.

Defendant is charged by indictment with violating section 4482, Revised Statutes 1909', by feloniously attempting to rape and carnally know one Jessie Pearl Sears, a female child of the age of thirteen years.

The defendant and prosecutrix reside in Union township in Cass county, Missouri. The defendant is a married man, a photographer by occupation, and resides with his father on a farm in a house located only a few hundred feet from a church. At the time of the alleged crime lie was employed to, or had voluntarily assumed the duty of building fires in this church, for the accommodation of patrons of a Sunday school taught therein. The evidence of the prosecutrix recites that she was thirteen years old in September, .1909, and resided with her father and mother on a farm about one mile south of the church above mentioned. That twenty minutes before the hour of ten o’clock in the forenoon of February 27, 1910', she left her home and walked to the church to attend Sunday school. On entering the church she found the defendant there alone, and asked him if he had completed some pictures which he had taken of her a few days before. He replied that he had not, but handed her some other pictures to examine; and while she was sitting on a bench in front of the stove looking at these pictures, he sat down by her and putting one of his hands up under her dress, placed it on her sexual organ and with the other hand tapped her under the chin. She, tried to push his hand out from under her dress, but he refused to remove it until he looked out. of the window of the church and saw only a few yards distant one John Dempsey, a small boy, approaching; then he went away and let her alone, informing- her that he would not tell anybody and that, he would make her a postal card and it would be all right. Within a few minutes after this occurrence the pupils and teachers of the Sunday school assembled at the church. Mrs. Addie Laughlin, who taught the prosecutrix her Sunday school lesson, testified that the usual disposition of posecutrix was to be cheerful and pleasant, but on that day she seemed to be restless, worried and mad. After the Sunday school was dismissed the prosecutrix went home, and about four o’clock in the afternoon of that day informed her mother of the defendant’s conduct; and when her father learned it, he caused the defendant’s arrest.

Sheriff Sid J. Hamilton took with him one Walter Welborn, and arrested the defendant on the first day of March, 1910. While they were taking defendant to his home preparatory to removing him to the county seat, one of them told him that he regretted the affair on account of defendant’s wife, whereupon the defendant replied that he hated it too, “but that sometimes a man’s passion would get the best of him.” After giving bond and returning home, one Frank Roblett asked the defendant what he had been arrested for, and he replied,- “I am charged with assault with intent to rapé,'but I haven’t killed anybody, and they can’t put a man in the penitentiary for feeling a girl’s' --Roblett seemed to have a very unfriendly feeling toward defendant.

The testimony of* defendant was that when the prosecutrix came into the church and asked him about the pictures, he told her that he had not yet made her pictures, but laid several others in her lap for her to examine, and that when he picked them up out of her lap he patted her on the chin and told her he would make her a postal card, but denied placing his hand under her dress, and denied all efforts and intent on his part to have' sexual intercourse with her. He claimed that both he and the prosecutrix saw the small boy, John Dempsey, approaching the church before he began showing her the-pictures, and it then being the hour when the patrons of the Sunday school should assemble, they were expecting parties to come in every -minute. It was also shown that from the windows of the church anyone approaching from the south could haye been seen about three hundred yards. The Dempsey boy came from that direction and it was clearly possible that defendant and prosecutrix could have seen this boy approaching before defendant committed the alleged assault. Defendant denied the alleged statements testified to by witnesses Hamilton and Wei-born wbo arrested bim, saying he was sure he. did not nse the word “passion” in the sense they gave it in their evidence, and also denied the alleged admission testified to by Roblett. He also proved by a large number of witnesses that his reputation for truth and morality, up to the time of his arrest, was good. The evidence of previous good character could not have been stronger.

The defendant assigns as error the action of the trial court in permitting the State to propound- improper questions to his character witnesses; in excluding evidence of statements made by defendant to his wife after his arrest; in refusing to sustain a demurrer to the evidence; and also in failing to instruct the jury on the law of common assault.

OPINION.

The defendant did not object to the alleged improper questions propounded to his character witnesses in the trial court, and that point is not open to him here. The court committed no error in refusing to allow defendant to testify to statements made by him to his wife.

As to whether or not the evidence was sufficient to justify the court in submitting to the jury an instruction authorizing a conviction'for assault with intent to then and. there have carnal knowledge of the prosecutrix, we find that under the admitted facts, the assault if committed, was committed in the church at the very time when defendant knew that many persons were likely to arrive and did arrive within a few minutes, and that the defendant could have had little or no hope that he could commit the crime without being detected in the act, yet notwithstanding these facts we cannot hold that the court erred in refusing to sustain a demurrer to the evidence. These attendant circumstances, coupled with the defendant’s prior good reputation, would render it somewhat improbable that he would undertake the commission of such a heinous crime at the time detailed by the prosecutrix; yet our reported cases contain many examples of attempts to commit rape under circumstances which rendered detection practically a certainty. [State v. Shroyer, 104 Mo. 443; State v. Smith, 80 Mo. 516; State v. Alcorn, 137 Mo. 121.] It is a matter of common knowledge that some persons will incur greater risks to gratify their lustful desires than to attain any other end.

We have read the record most diligently and can discover no indication of any reason or motive for the prosecutrix or her father preferring' a false charge against the defendant, and we are convinced that while the defendant and the prosecutrix were alone he took improper liberties with her. It was for the jury to say whether or not she told the truth, and if so, how far he .would have gone with his caressing or improper advances had not the small boy, John Dempsey, appeared on the scene.

The complaint of the defendant that the trial court erred in failing to give the jury an instruction on the law of common assault seems to us to be well taken. The crime of common assault is necessarily embraced in the charge of felonious assault. [R. S. 1909; sec. 4904.] While the evidence does not disclose an assault in the ordinary meaning of that word, yet the placing of his hand under the dress of the prosecutrix in a lascivious manner, if he did so, though he entertained no intent to have sexual intercourse with her at that particular time, was, under the law, an assault more culpable than a blow delivered in anger. [State v. White, 52 Mo. App. 285; State v. Fulkerson, 97 Mo. App. 599; Goodrum v. State, 60 Ga. 509.]

If the jury believed the evidence of prosecutrix and yet, from the surrounding circumstances, did not believe defendant intended to have sexual intercourse with her at the- particular time when she testified that he placed his hand under her clothes, then clearly they would have been justified in finding him guilty of common assault. When as in the ease at bar the evidence shows that a defendant may not be guilty of the offense charged but may be guilty of an offense necessarily embraced in the charge, it becomes the duty of the trial 'court to instruct the jury upon such minor offense whether it be requested to do so or not. [R. S. 1909, sec. 5231; State v. Palmer, 88 Mo. 568; State v. Lackey, 230 Mo. 707.]

For the error of the trial court in failing to instruct the jury on the law of common assault, as applicable to the evidence in this case, its judgment is reversed and the cause remanded for a new trial.

Kennish, P. J., and Ferriss, J., concur.