text:
    THE STATE v. SAMUEL SHERMAN, alias JOHN COLLINS, Appellant.
    Division Two,
    March 30, 1915.
    1. JURORS: Conscientious Scruples Against Death. Penalty. The-trial court does not err, in excusing from the array jurors otherwise qualified who state upon their voir dire examination that they have conscientious scruples against finding a defendant, guilty of an offense punishable with death.
    2. -: Newspaper Opinions. Jurors who state upon their voir dire examination that they have formed opinions in regard to the case from having read newspaper reports, but that they will not be influenced by them in finding a verdict according to the law and the evidence, are not disqualified.
    3. GENERAL OBJECTION: Equivalent to No Objection. An objection to proffered testimony that it is “incompetent, irrelev- . ant and immaterial and that it tends to prove no issue in the case” will not suffice to support an exception to its admission, unless the testimony offered is inadmissible for any purpose.
    4. IRRELEVANT TESTIMONY: Non-Prejudicial. Although testimony admitted is irrelevant and the time of the court is unnecessarily taken up in its introduction, yet if, upon a reasonable construction, it is not prejudicial, its admission will not constitute error.
    5. -: Murder: Unquestioned Guilt: Appellate Rule. In the presence of the unquestioned guilt of a defendant charged with first-degree murder, only errors which, upon a fair interpretation, tend to prevent an impartial trial, will work a reversal.
    6. CROSS-EXAMINATION OF DEFENDANT: Presence in Neighborhood of Crime: Immaterial Matter. Where defendant has: testified that he and his codefendant were in the neighborhood of the shooting the night the policeman was shot, and that they fled when they saw him coming out of a certain drug store, the State was authorized in asking defendant on cross-examination why he was in the neighborhood, and in eliciting or attempting to elicit from him all the facts relative to his presence at the place the homicide was committed at or about the time it was. committed. It is not error to cross-examine a defendant concerning a matter referred to in his examination in chief; and even if not referred to in his examination in chief, if it be concerning a matter that is principally immaterial, his cross-examination in regard thereto is not prejudicial.

      7. EVIDENCE OF OTHER CRIMES: Relevant Matter: Intent. In making proof against a defendant in a criminal case, the prosecution may introduce in evidence all relevant facts and circumstances which tend to establish any of the constitutive elements of the crime for which he is on trial, although it may be developed by such evidence that he has committed other crimes; and evidence of the possession by him of lethal instruments with which the crime was committed may be admitted to show an intent or purpose to commit the crime with which he is charged, although such evidence may implicate him in another and different crime.
    8. -: -: -: Carrying Concealed Weapons at Another Time and Place. Where defendant while on the stand has admitted and his counsel in his opening statement has said that defendant “pulled his gun out of his pocket and started to hand it to the police officer” whom he is charged with having murdered, thereby confessing himself guilty of carrying concealed weapons, the admission of the testimony of certain wit-, nesses that defendant and his co-indictee on the night of the homicide and prior thereto had pistols in their possession or were carrying concealed weapons, was not error, even though ■ it tended to prove another and distinct crime.
    9. MURDER: Sufficiency of Evidence. The evidence in this case, and in its companion case of State v. Tatman, ante, page 357, authorized a verdict of murder in the first degree.
    10. ARGUMENT OF PROSECUTOR: Extraneous Matters: Status, of Public Mind. . Prosecuting attorneys should confine their arguments to the jury to a legitimate discussion of the facts developed at the trial and to the instructions. But that does not mean that they may not discuss the prevalence of crimes such as that for which defendant is on trial, or state their conclusions as to the state of the public mind in regard to crime generally or the particular class of offenses under consideration. The remark of the prosecuting attorney in his argument to the jury in a murder case that “the people of Jackson county do not believe in highwaymen, bullies or murderers.” was but a statement of a truism, was not denunciation, and was not prejudicial. ■
    Appeal from Jackson Criminal Court. — Eon. E. E. Porterfield, Judge.
    Appirmed.

      O. F. Wimmer and L. N. Dempsey for appellant.

      (1) The court refused to permit qualified'jurors to serve, for the reason that they swore that they would not impose capital punishment, even though they would return a verdict of guilty, in violation of Sec. 4450, R. S. 1909. (2) Other crimes than the one charged. State v. Hyde, 234 Mo. 200; State v. Philips, 233 Mo. 299. (3) The court erred in giving the instruction on murder in the first degree, for the reason there is no evidence on which to base said instruction. State v. May, 142 Mo. 135; State v. Gordon, 191 Mo. 227; State v. Eperly, 201 Mo. 572; State v. Walker, 196 Mo. 87; State v. Garrison, 147 Mo. 49. Even though there had been evidence on which to base said instruction it erroneously declared the law, in that it did not require the jury to find from the evidence, beyond a reasonable doubt, the elements constituting murder in the first degree. State v. Martin, 124 Mo. 522. Said instruction was erroneous for the further reason that it referred the jury to instruction number 7, which instruction attempted to define self-defense and improperly defined the same. Instruction number 7 is erroneous in that it required the jury to find that deceased was about to kill defendant or to do him some great bodily injury before the defendant had a right to shoot in his own defense. State v. Edwards, 203 Mo. 540; State v. Garrett, 170 Mo. 397; State v. Reed, 154 Mo. 22; State v. Beaty, 190 Mo. 286; State v. Peeley, 194 Mo. 322. The court erred in giving instruction number 10, for the reason, there was no evidence on which to base said instruction and for the reason said instruction did not require the jury to find that the defendant shot said Lynch with malice aforethought and for the reason that said instruction authorizes the jury to find .the defendant guilty of murder in the first degree, regardless of what force or means said Lynch was using in making said arrest. State v. Banks, 167 S. W. 505; State v. May, 142 Mo. 135. (4) The verdict is contrary to the evidence, for the reason that, under the evidence, the defendant was entitled to be acquitted on the ground of self-defense, or if found guilty at all be could be found guilty only of murder in the second degree, as there was no element of deliberation in the case. State v. May, 142 Mo. 135. (5) The court erred in refusing to rebuke the prosecuting attorney for denouncing the defendant as a “highwayman” in his final argument to the jury. State v. James, 216 Mo. 394; State v. Newcomb, 220 Mo. 54; State v. Thavanat, 220 Mo. 545; State v. Claney, 225 Mo. 654; State v. Philips, 233 Mo. 299; State v. Parrel, 233 Mo. 452; State v. Hyde, 234 Mo. 200; State v. Miller, 234 Mo. 588; State v. McGrath, 128 S. W. 966.
    . John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
    (1) Persons conscientiously opposed to the infliction of the death penalty in cases wherein such penalty is provided by law are not competent to sit as jurors. Sec. 5218, E. S. 1909; State v. Miller, 156 Mo. 84; State v. David," 131 Mo. 390; State v. Punshon, 133 Mo. 51; State v. Wooley, 215 Mo. 672. (2) Where a juror on his voir dire examination declares that his opinion is not such as to Mas or prejudice his mind, and that his opinion will readily yield to the evidence in the case, he is a competent juror. State v. Church, 199 Mo. 629; State v. Darling, 199 Mo. 196; State v. Sykes, 191 Mo. 75; State v. Brennan, 164 Mo. 507; State v. Bronstine, 147 Mo. 520; State v. McGinnis, 158 Mo. 105. (3) If an officer suspects from his own knowledge of'facts, or from facts communicated to him by others, that a felony has been committed and has reasonable ground to believe that the accused is guilty of the felony, he may arrest Mm. State v. Spaugh, 200 Mo. 604; State v. Cushinberry, 157 Mo. 181; State v. Craft, 164 Mo. 644; State v. Albright, 144 Mo. 653; State v. Puller, 96 Mo. 168; State v. Evans, 161 Mo. 108; State v. Hoicomb, 86 Mo. 381; State v. Dierberger, 96 Mo. 672; Anderson v. State, 133 Wis. 610. (4) The statement of appellant that on the night of the homicide he in company with his codefendant, whom he knew to be a “holdup” man, went to the place of the homicide to look over a drug store situated there, was competent evidence to show his business there, armed, and to show.the deceased officer had reasonable cause, taken in connection with their actions there at that time and information he had of other crimes committed in that neighborhood by persons answering the description of appellant and the authority of the officer, to arrest him without a warrant. See cases under point 3. (5) A defendant on the witness stand may be cross-examined in detail as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness in the case. Sec. 5242, R. S. 1909; State v. Larkin, 250 Mo. 234; State v. Miller, 156 Mo. 85; State v. Sharp, 233 Mo. 284; State v. Barrington, 198 Mo. 71; State v. Feeley, 194 Mo. 315; State v. Kyle, 177 Mo. 663; State v. Fisher, 162 Mo. 172; State v. Cunningham, 154 Mo. 174; State v. McLaughlin, 149 Mo. 29; State v. Punshon, 133 Mo. 54; State v. Eisenhour, 132 Mo. 148; State v. Harvey, 131 Mo. 345; State v. Kennade, 121 Mo. 413; State v. Avery, 113 Mo. 498; State v. McKenzie, 1Ó2 Mo. 632; State v. West, 95 Mo. 142; State v. Brannum, 95 Mo. 22; State v. Berning, 91 Mo. 85; State v. Taylor, 134 Mo. 156’; State v. Miller, 190 Mo. 462; State v. Keener, 225 Mo. 499; State v. Donnington, 245 Mo. 354. (6) Evidence of other crimes committed by one on trial for homicide is admissible for the purpose of showing that the officer had reasonable grounds for attempting to make the arrest and for the purpose of showing a motive for the homicide. State v. Grant, 79 Mo. 136; State v. Rudolph, 187 Mo. 84; State v. Collins, 181 Mo. 259; White v. State, 70 Miss. 253; People v. Wilson, 141 N. Y. 185. 188; English v. State, 34 Tex. Crim. 190: State v. Morgan, 22 Utah, 162; State v. Shaw, 73 Vt. 149; Dryer v. State, 139 Ala. 117; Com. v. Carter, 66 N. E. 716; People v. Coughlin, 13 Utah, 58; Williams v. Com., 85 Va. 607; Com. v. Major, 198 Pa. 200; People v. , Pool, 27 Cal. 573; Anderson v. State, 133 Wis. 601; State v. Byrd, 72 S. C. 104; People v. Woods, 147 Cal. 265; Bishop v. Com., 109 Ky. 565.
   WALKER, J.

Upon an information filed by the prosecuting attorney of Jackson county, appellant and John Tatman were charged with murder in the first degree in having shot and killed John Lynch, a police officer, in Kansas City in said county on the night of April 30, 1913. A severance was granted and a trial of appellant was had, resulting in a conviction as charged, the punishment being assessed at death. Following the usual procedure, an appeal was perfected to this court.

The facts are identical with those in State, v. Tat-man, ante, p. 357, except that appellant in his voluntary statement, made the morning succeeding the homicide, said that when he attempted to deliver his pistol to the officer the latter lunged forward and the pistol was discharged, whereupon the officer began shooting at appellant, when he returned the fire in self-defense. That he did not intend to shoot the officer in the first instance, but that the shot was accidental. That when appellant found Tatman, his codefendant, had been shot in the foot they made away as fast as they could and were apprehended a few blocks from the scene of the shooting by a police officer named Whalen.

I. The Selection of the Jury. — Appellant contends that the trial court erred in excusing from the array a number of otherwise qualified jurors who stated upon their voir dire examination that they had conscientious scruples against finding a defendant guilty of an offense punishable with death. The action of the trial court was in compliance with the statute (Sec. 5218, R. S. 1909), which provides that persons having these scruples shall not be allowed or compelled to serve as jurors on the trial of an indictment for any offense punishable with death. The rule announced in this statute has received judicial approval without express reference thereto in State v. David, 131 Mo. l. c. 390. Nor did the court err in refusing to exclude from the trial panel two jurors who stated on their voir dire examination that they had formed opinions in regard to the case from having read newspaper reports but that this would not influence them in finding* a verdict according to the law and the evidence. [State v. Church, 199 Mo. 605, 631; State v. Darling, 199 Mo. 168, 196.]

II. Rulings on Evidence. — Appellant contends, that the court erred to his prejudice in the admission and exclusion of testimony. We have carefully reviewed the record and find that many of the objections, made to the court’s rulings were general, or that counsel for the appellant urged that the testimony objected to was “incompetent, irrelevant and immaterial and that it tended to prove no issue in the case.” Objections of this character will not suffice for a basis for an exception unless the testimony offered is inadmissible for any purpose, and the testimony objected to-was not of this class. [State v. Castleton, 255 Mo. 201.] Moreover, while much of the testimony complained of was irrelevant and the time of the trial court was unnecessarily taken up in its introduction, it was not, under a reasonable construction of same, prejudicial, and appellant’s complaint in this regard is not well founded. In the presence of unquestioned guilt, only errors which, upon a fair interpretation, tend to prevent an impartial trial should be considered sufficient to work a reversal.

III. Cross-examination, of Appellant. — Appellant contends that counsel for the State should not have been permitted to ask him why he was at the time out in the neighborhood where the shooting occurred, the objection being that appellant had not been examined in chief in regard to this matter. Appellant had, however, stated that he was in the neighborhood the night of the shooting with his codefendant, Tatman, and the appellant’s testimony properly subjected his conduct to examination, especially as he had stated that he and Tatman had fled when they saw the police officer coming out of the drug store. The statute (Sec. 5242, E. S. 1909) subjects a defendant who testifies in his own behalf “to cross-examination, as to any matter referred to in his examination in chief,” and he “may be contradicted, or impeached as any other witness.” Having stated that he was in the neighborhood, the State was authorized in eliciting or in attempting to elicit from him all the facts relative to his presence on the night and at the place where the crime was committed. As we said in State v. Miller, 156 Mo. l. c. 85, the cross-examination of a defendant in a criminal case is not confined to a mere categorical review of the matters stated in the direct examination. And in State v. Barrington, 198 Mo. l. c. 81, we said that to warrant a reversal on the ground of an improper cross-examination the statute must be given a reasonable construction and the cross-examination must be in regard to matters material to the cause concerning which the defendant did not refer in his examination in chief, or, if immaterial, it must be upon subjects tending to prejudice the jury against the defendant. These cases are authority for the further cross-examination of appellant as to his reason for having a pistol in his possession on the night of the crime. These facts, and others upon which he was cross-examined, had been referred to in his examination in chief, and hence the cross-examination was not erroneous, not only under the express terms of the statute as construed in the cases referred to, hut for the additional well founded reason which has received our approval in State v. Feeley, 194 Mo. l. c. 315, that a cross-examination such as this was not prejudicial to the defendant, in that the matter elicited is principally immaterial although not referred to in his examination in chief, and will not authorize a reversal of the judgment. The court says further in the Feeley case, supra, that the Legislature could not have intended, in passing the law limiting the right of the State to cross-examine the defendant, that its violation, in regard.to immaterial matters not hurtful to the defendant, would suffice to work a reversal. The latitude allowed in cross-examination upon the varied phases presented by the cases reviewed has been exhaustively presented in the respondent’s brief, q. v.

IV. Evidence of Other Crimes. — Certain witnesses testified that appellant and his codefendant on the night of the killing and prior thereto had revolvers in their possession, or were carrying concealed weapons. Appellant contends that the admission of this testimony was error, on the ground that it was evidence of another and a distinct crime, disconnected as to time and place, and having no connection with the crime charged, nor tending to prove the same.- Appellant admitted on the stand that he “pulled his gun out of his pocket and started to hand it to the police officer,” thereby confessing himself guilty of carrying concealed weapons. This statement was also made by counsel for appellant in his opening statement, in which he said that appellant would so testify. In the presence of these facts, the admission of the testimony in question having the same .effect and a like probative force as the admission of appellant and the statement of his counsel, the former could have suffered no prejudice.

The general rule is that in making proof against a defendant in a criminal case, the prosecution may introduce in evidence all relevant facts and circumstances which tend to establish any of the constitutive elements of the crime for which the defendant is on trial, although it may be developed by such evidence that he has committed other crimes; but proof of other crimes is never admissible as substantive evidence of the offense on trial and the rule extends to proof of accusation of another crime as well as evidence of its actual commission. General as this rule is in its application, it is subject to a number of exceptions, which the curious may find elaborately discussed in 1 Wharton on Criminal Evidence (10 Ed.), page 59 et seq. Aside from these exceptions, however, if appellant and his counsel had not by admissions neutralized whatever hurtful effect might have been produced by the admission of evidence in regard to the carrying of concealed weapons by appellant, the testimony in regard to same was not improper under the rule that evidence of the possession by appellant of instruments with which a crime was perpetrated may be admitted to show an intent or purpose to commit the crime with which he is charged, although such proof implicates him in another and different crime. [Commonwealth v. Wilson, 2 Cush. 590; Commonwealth v. Gallagher, 124 Mass. 29; Commonwealth v. Levy, 126 Mass. 240; People v. Larned, 7 N. Y. 445; Robbins v. People, 95 Ill. 175; People v. Hope, 62 Cal. 291; State v. Wintzingerode, 9 Ore. 153; Ruloff v. People, 45 N. Y. 213; 2 Wharton on Criminal Evidence (10 Ed.), p. 1557.]

V. Instructions. — Appellant assigns as error the giving of all of the instructions. We have carefully reviewed them and find them to be in the forms that have frequently been approved by this court. Declaring as they do the law applicable to the case under the evidence, we hold appellant’s contention in this regard without merit.

VI. The Verdict. — It is claimed that the evidence does not warrant a verdict of murder in the first degree. The entire atmosphere of the case is indicative of a design and purpose of the appellant and his co-defendant to kill if their apprehension was attempted. Armed with deadly weapons, they were in the nighttime “skulking” (the word is not too strong) in the neighborhood where the shooting subsequently occurred. A most searching cross-examination failed to elicit from the appellant any reasonable explanation for his presence there with his codefendant at the unusual hour of 11:30 p. m. Upon seeing the officer they fled precipitately. Called upon to stop, they did so, with the result that the officer received five mortal wounds. That he fired a shot is not shown by the evidence of a single witness except appellant and his codefendant. Disinterested witnesses testified that the officer did not fire a shot, and the correlative facts give credence and force to this testimony. The jury did not believe the testimony of appellant and his codefendant, but by reason of their testimony the court properly gave an instruction for murder in the second degree and lesser degrees of homicide, and they have no ground of complaint on this score. The fact is that under the evidence the trial court was liberal in its instructions, and appellant received the benefit of every fact in evidence upon which an instruction could properly be predicated. The verdict for murder in the first degree was authorized under the evidence, and we overrule appellant’s contention to the contrary.

VII. Remarks of Prosecuting Attorney.- — -The remark of the prosecuting attorney that “the people of Jackson county did not believe in highwaymen, bullies or murderers ’ ’ is most seriously complained of by appellant. Prosecuting attorneys as a rule should confine their remarks to a legitimate discussion of the facts developed on the ‘trial and to the instructions based thereon. [State v. James, 216 Mo. 394.] This does not mean, however, that counsel may not in argument discuss the prevalence of crimes such as that for which the defendant is on trial, if same exists, and also indulge in such comments as may legitimately be based thereon. [State v. Hilton, 248 Mo. 522.] Nor is it error for a prosecutor to state his conclusions in argument as to the status of the public mind, as in this case, either in regard to crime generally or as to the particular class of offenses or offenders then under consideration. The test being in each case: Are the remarks, fairly construed, prejudicial to the defendant? Neither invective by a prosecuting attorney, if called forth by the character which the evidence tends to disclose, nor urgent appeals to the jury to do their duty, will justify the reversal of a judgment. [State v. Zumbunson, 86 Mo. 111.] That the people of the county in question or of any locality for that matter, do not believe in the class of characters designated by the prosecuting attorney, but do believe that crime should be punished, is, as suggested by respondent, simply the statement of a truism. There is in the remark no intimation that the jury should be controlled by other than the evidence or that the accused, if not so shown by the evidence, belonged to the class designated. In the Eogers case (253 Mo. 399, 415) we held that it was not error for the prosecuting attorney to state, “Men, it would be a disgrace for you to acquit the defendant under the testimony.” In considering objections to remarks made by prosecuting attorneys, the distinction should always be made between strong denunciation if sustained by the evidence and abuse of the defendant of which there is no evidence. [State v. Allen, 174 Mo. 689, 698.] In the instant case there was no denunciation, although, the evidence might have permitted it, but simply a declaration of the attorney’s opinion of the manner in which the people of Jackson county regarded the designated violators of the law. Appellant could not reasonably be said to have been prejudiced by this remark, and we hold his contention to be without merit.

This was a heinous murder. Appellant’s guilt was indubitable. His defense throughout was technical. He was in the trial accorded every right to which he was entitled. The judgment of the trial court should be affirmed, and the sentence imposed by the trial court ordered to be executed, and it is so ordered.

All concur.


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    THE STATE v. CHARLES B. HOWARD, Appellant.
    Division Two,
    March 30, 1915.
    1. SEDUCTION: Unchastity. In a prosecution for seduction tide prior unchastity of the prosecutrix may be shown as a defense to the charge. The seduction statute in this respect is different from the statute prohibiting the defilement of a female ward, which does not require her to be chaste or even of good repute.
    2. -: Definition of Seduce. To seduce means to induce to> surrender chastity. Chastity must exist before it can be surrendered or destroyed. There may be a pollution of the mind without seduction, but under the statute (Sec. 4478, R. S. 1909) there can be no seduction without illegal sexual intercourse.
    3. -: Good Repute: Burden. The words "of good repute” used in the seduction statute cast upon the State the burden of proving that a prosecutrix at the time of her seduction possessed a good reputation for chastity among those by whom she was known; for the statute restricts its protecting influence to females “of good repute.”
    4. -: Venue: First Copulation. Prosecutrix is rendered unchaste by the first act of sexual intercourse, and where the first act took place in St. Louis County a subsequent act committed in St. Louis City about a week later, with the same defendant, under the same promise of marriage, did not amount to seduction; and, therefore, the prosecution for seduction was improperly instituted in St. Louis City, but should have been instituted in St. Louis County, where the first act of coition was committed and prosecutrix surrendered her chastity.
    5. -: Promise of Marriage: Consideration for Defilement. The promise of marriage must precede the seduction and must be unconditional; but it is not the law that, if a promise of marriage immediately preceded the act of sexual intercourse and was the sole consideration which moved the prosecutrix to submit to the destruction of her chastity, there was no seduction. If the situation of the parties is such as to render it probable that the promise of marriage would be made, nothing else than the promise on the part of the defendant is necessary to constitute the inducement whereby the prosecutrix surrenders her chastity. The date when the marriage shall take place need not he agreed upon. The yielding of the prosecutrix constitutes her acceptance of defendant’s promise of marriage. The statute ordains that when an unmarried female, under twenty-one years of age and of good repute, is induced to surrender her chastity to an eligible suitor by such promise, the crime of seduction is complete; and the courts cannot write any other requirement into it. [Holding as unsound the ruling of SHERWOOD, X, in State v. Reeves, 97 Mo. 1. c. 677.]
    6. -: Corroboration of Prosecutrix: Age and Repute. The testimony of the prosecutrix as to the promise of marriage should be corroborated in a seduction case; and there should be evidence of her age and good repute.
    Appeal from St. Louis City Circuit Court. — Hon. William M. Kinsey, Judge.
    Reversed and remanded.

      Hans Wulff and John A. Porter for appellant.
    (1) The court erred in refusing to give the peremptory instruction offered by the defendant at the close of the State’s case. The evidence offered by the State placed the commission of the alleged offense in the county of St. Louis. The indictment was found by the grand jury of the city of St. Louis and trial had in said city. The court did not have jurisdiction of the ease. Constitution, art. 2, sec. 12; State v. Blunt, 110 Mo. 322. The testimony of the prosecuting witness that she had intercourse with defendant at Mrs. Free’s house, two or three months after the alleged seduction and promise of marriage, which, according to her testimony, took place in St. Louis county, does not give the court jurisdiction, and is insufficient to prove venue. The alleged offense had been consummated three months prior to that time and in another jurisdiction. (2) (a) The evidence in this case fails to show that the prosecuting witness relied on the alleged promises of defendant to marry her. What she did rely upon was a conditional promise that if prosecuting witness got into trouble defendant would marry her. State v. Thomas, 231 Mo. 41. (b) The consent of prosecuting witness to the alleged intercourse between her and defendant at Mr. Free’s house, three months after their meeting in University City and on which incident the State relies for the proof of the venue in this case was given — “Because I loved him” — and such consent was not predicated on any promise, conditional or otherwise. (c) As to promise of marriage in a seduction case, the prosecutrix must be strongly corroborated by other testimony sufficient to overcome the oath of the defendant and the legal presumption of his innocence. State v. Marshall, 137 Mo. 463. (3) (a) There was no competent or credible evidence that the prosecutrix was at the time of the alleged seduction under the age of twenty-one. Her statement as to her age was a mere conclusion. The mother of prosecutrix was living at the time of the trial and she could have been produced to testify as to the age of prosecutrix. The evidence of the mother would have been the best evidence and the testimony of prosecutrix as to her age should have been excluded. State v. Coujot, 121 Mo. 463. (b) The alleged family record of births was improperly admitted as by the evidence it was not shown to be the record of the King family, or the record of the birth of prosecutrix. There was no evidence to show by whom or when it was made. There was no evidence to show that it was made by one of the King family, or by one having knowledge of the respective births or deaths in said family.

      John T. Barher, Attorney-General, and Lee B. Ewing, Assistant Attorney-General, for the State.
    (1) The circuit court of the city of St. Louis had jurisdiction of this offense. The venue was in St. Louis city. State v. McClain, 137 Mo. 307. (2) The court properly overruled appellant’s demurrer to testimony at the close of the State’s case, and also at the close of all the evidence. State v. Eckler, 106 Mo. 585; State v. Thornton, 108 Mo. 640; State v. Thomas, 231 Mo. 46; Kengon v. People, 26 N. Y. 203; Boyce v. People, 55 N. Y. 644; People v. Van Alstyne, 144 N ”. 361; Callahan v. State, 63 Ind. 198; People v. Kehoe, 123 Cal. 224; People v. Millspaugh, 11 Mich. 282; People v. DePore, 64 Mich. 693; State v. Abrich, 41 Minn. 41; Polk v. State, 40 Ark. 482; State v. Raynor, 145 N. C. 472; State v. Atterberry, 59 Kan. 237; State v. Adams, 25 Ore. 172; Bishop’s Statutory Crimes, sec. 638; 3 Wharton’s Crim. Law (11 Ed.), sec. 2105; Desty’s Criminal Law, sec. 135A; McClain’s Crim. Law, sec. 1112; Clark & Marshall’s Criminal Law (2 Ed.), p. 710; Hughes, Crim. Law & Procedure, sec. 2120, p. 543; 35 Cyc. 1336 and 1334; 25 Am. & Eng. Ency. Law (2 Ed.), 230.
   BROWN, J.

The, grand jury of the city of St. Louis returned an indictment charging defendant with having seduced and debauched, under promise of marriage, one Lundy King, an unmarried female, as prohibited by section 4478, Revised Statutes 1909. A trial in the circuit court of said city resulted in defendant’s conviction and he appeals.

Among the grounds upon .which a reversal is sought is the contention that the evidence is not sufficient to support the conviction — a part of this assignment is the insistence that, if guilty at all, the crime was committed in St. Louis county, and not in St. Louis city, where defendant was indicted and convicted.

The testimony of prosecutrix tends to prove that she became acquainted with defendant in July, 1911; that he called on her at intervals of two or three weeks until the latter part of January, 1912; when, on one Saturday night in the city of St. Louis, he offered to marry her if she would have sexual intercourse with him. She states that she rejected this proposal at that time, but on the following evening she accompanied defendant to a point in St. Louis county where he had been engaged in building a house. Upon entering this house his proposal of marriage was renewed, and, relying upon that proposal, and the one made the night before in St. Louis city, she yielded to defendant.

About a week later defendant called on her in the city of St. Louis and, because (as she says) she loved him and thought he intended to marry her, she again allowed him to have sexual intercourse with her. No time was fixed for the proposed marriage, but the illicit intercourse continued some months, prosecutrix finally becoming pregnant. Prosecutrix testified that she had never sustained sexual relations with any person prior to the time she yielded to defendant.

I. On this showing, if it be conceded that prosecutrix was seduced by defendant, the issue'arises as to where that crime was committed? Did each act of sexual intercourse constitute a separate seduction, or was the crime committed only in St. Louis county where the first act of copulation took place? This issue depends for its solution upon a correct construction of the words “seduce or debauch,” as found in section 4478, supra. The learned Attorney-General relies for affirmance in part upon the case of State v. McClain, 137 Mo. 307, wherein it was held that a man who had sexual intercourse with his female ward in two different counties while she was under his care and protection could he prosecuted in- the county where the second act of illicit sexual intercourse took place. That case is not in point here, because the statute denouncing the defilement of wards (Sec. 4479, R. S. 1909) is quite unlike the seduction statute now under consideration.

The statute prohibiting the defilement of wards does not require the ward to he chaste, or even to he of good repute, to render the guardian, or other person to whose protection she has been confided guilty, if he carnally know her. The well-settled rule is that the unchastity of a female under eighteen years of age is no defense to a prosecution for her defilement by her guardian, or other person to whose care she has been confided. [State v. Strattman, 100 Mo. 540; State v. Summer, 143 Mo. 220, l. c. 231; State v. Nibarger, 255 Mo. 289.] Such is not the construction of the seduction statute where’prior unchastity of the prosecutrix may be shown as a defense to the charge. [State v. Long, 257 Mo. l. c. 225, and cases there cited.]

The law books contain many definitions of the word “seduce,” which, no doubt, arise from the varying phraseology of the statutes of the several States where that act is denounced as a crime. A very clear definition of the word is found in State v. Long, 238 Mo. 383, l. c. 390. As used in section 4478, Revised Statutes 1909, “seduce” is not a technical word, and should he construed in its “plain or ordinary and usual sense.” [Sec. 8057, R. S. 1909.] No better definition of the word seduce can he given than that found in Webster’s New International Dictionary, to-wit: “To induce to surrender chastity.” It is too plain to admit of controversy that chastity must exist before it can be surrendered or destroyed. There may be a pollution of the mind without seduction, but there can be no seduction under section 4478, supra, without sexual intercourse. The word 4 4debauch” as used in that statute has been construed to mean sexual intercourse or carnal knowledge. [State v. Reeves, 97 Mo. 668; State v. Marshall, 137 Mo. l. c. 468 and 473.] That definition seems to be correct, but as the word seduce necessarily includes the act of illegal sexual intercourse, it is doubtful if the word debauch adds anything to the meaning of this statute.

The words 4 4 of good repute ’ ’ as used in our seduction statute cast upon the State the burden of proving that a prosecutrix at the time of her seduction possessed a good reputation for chastity among those by whom she is known. It seems to have been the purpose of this statute to restrict its protecting influence to females 44of good repute.”

It being perfectly clear that the crime of seduction cannot be committed upon a female who is not at the time chaste, and as prosecutrix was rendered unchaste by the act of coition which she admits first took place in St. Louis county, the subsequent act committed in St. Louis city about one week thereafter did not amount to seduction. We do not wish to be understood as holding that a woman once seduced cannot thereafter reform and reenter upon such a life of chastity and rectitude that she will again be under the protection of the seduction statute. The law on this point is quite fully discussed in State v. Knutson, 91 Iowa, 549, and People v. Clark, 33 Mich. l. c. 117, but there is no such issue in this case.

While our seduction statute is very unlike section 4479, supra, relating to the defilement of wards, it is very similar in one respect to section 4472, Revised Statutes 1909, relating to the carnal knowledge of unmarried females of previous chaste character, in that both of these statutes require the female to be chaste at the time the crime is committed. [State v. McMahon, 234 Mo. l. c. 614; State v. Schenk, 238 Mo. 429, l. c. 457; State v. Henderson, 243 Mo. 503.]

n. Under the provisions of section 22, article 2, Constitution of Missouri, indictments for crimes must be presented in the county where the crime is committed. [Ex parte Slater, alias Lane, 72 Mo. 102; State v. Anderson, 191 Mo. 134, l. c. 142; State v. Mispagel, 207 Mo. 557, l. c. 584.] Therefore, this prosecution was improperly instituted in St. Louis city.

III. Defendant also insists that the trial court should have sustained his demurrer to the evidence, because no sufficient promise of marriage was proven by the evidence qi prosecutrix; and as the State may elect to place the defendant upon trial in St. Louis county we will consider this insistence.

In the case of State v. Reeves, 97 Mo. 668, l. c. 677, it was ruled by Judge Sherwood that if a promise of marriage immediately preceded an act of sexual intercourse, and was the sole consideration which moved the prosecutrix to submit to the destruction of her chastity, then there was no seduction. That case seems to proceed upon the theory that there must be some further inducement held out to the prosecutrix, otherwise she would be merely selling her chastity for a promise and the crime would not be complete. "We do not believe this doctrine announced by Judge Sherwood in the Reeves case, supra, is sound. None of his associates concurred in the language used by him in that opinion, and it possesses no binding force as a precedent.

It is true the promise of marriage must precede the seduction and must be unconditional. [State v. Thomas, 231 Mo. 41.] If an alleged promise of marriage was not preceded by any courtship or other personal association of the parties, it is donbtfnl if anyone could bring himself to believe that such a promise had been made. But if the situation of the parties is such as to render it probable that the promise of marriage would be made, there is nothing else than the promise necessary on the part of the defendant to constitute the inducement whereby prosecutrix surrenders her chastity. The date when the marriage shall take place need not be agreed upon. The yielding-of the prosecutrix constitutes her acceptance of defendant’s promise of marriage. In State v. Adams, 25 Ore. 172, this rule is correctly announced as follows :

“It is not necessary that the promise should be technically valid to sustain a civil action for breach of promise; and, although it may be conditioned upon immediate intercourse, thus rendering it void in a civil proceeding because founded upon an immoral consideration, it is still held sufficient to sustain a criminal prosecution if the woman in good faith relied upon it and was thereby deceived.’’ (Citing cases) “In such case, the mutual promise of the woman is implied from her yielding to the solicitations of her seducer under his promise of marriage, and the promise becomes absolute.”

The G-eneral Assembly, no doubt realizing what a powerful effect an offer of marriage by an eligible suitor produces upon the mind of an unmarried female, has ordained that when such female under twenty-one years of age and of good repute is induced to surrender her chastity by such promise the crime of seduction is complete. The statute so reads and we cannot write any other requirement into it.

The evidence of prosecutrix makes out a primafacie case of seduction in St. Louis county, except as to the corroboration of the promise of marriage required by section 5235, Revised Statutes 1909, and the evidence of her age and good repute at the time the alleged seduction took place. Upon another trial (should the State elect to' retry) the evidence to corroborate the prosecutrix as to the alleged promise of marriage and of her age and good repute may not be the same as at the first trial; therefore, we make no comment as to the sufficiency of the evidence upon these points. ¥e merely pass upon the sufficiency of the evidence of prosecutrix as to her version of the promise made and the acts done by defendant in ruling that a prima-facie case was made for the jury if the prosecution had been in the proper jurisdiction.

For the error of the prosecutor in causing an indictment to be presented in the county where the crime was not committed, the judgment will be reversed and the cause remanded.

Paris, P. J., and Walker, J., concur.


author: WALKER, J.

text:
    THE STATE v. JOSEPH MILLER, Appellant.
    Division Two,
    March 30, 1915.
    1. DEADLY WEAPON: Shown by Result. A rock may be shown to be a deadly weapon by proof that the defendant threw it at deceased, that it struck him on the back of his head and that the stroke broke his neck and caused a hemorrhage which produced death; and such proof authorized the giving of an instruction for murder in the second degree without further proof of the character or dimensions of the rock. A deadly weapon is one by which death would likely be produced when used in the manner stated.
    2. -: -: Charged in Information. Where the fatal character of the wound inflicted by the rock is shown, it is ■ unnecessary that the information use the words “with a deadly weapon;” and if used, they may be considered as surplusage, and direct proof of the nature of the weapon dispensed with.
    3. INSTRUCTION: Manslaughter in Third Degree: Intentional Homicide. The court should not give an instruction for manslaughter in the third degree where the evidence tends to show the killing was intentional. Where at the altercation in the afternoon preceding the homicide defendant declared he would “get” deceased later and after a scuffle with deceased that evening in the saloon attempted to procure a pistol from the bartender with which to shoot deceased, and failing in that obtained and threw a rock at deceased as he was passing out through the saloon door, striking him on the neck and killing him, the court did not err in refusing to give an instruction for manslaughter in the third degree, on the thory that the killing was “in a heat of passion without a design to effect death»”
    4. ARGUMENT TO JURY: No Request for Further Rebuke. If defendant is not satisfied with the rebuke administered to the prosecuting attorney for traveling out of the true lines of . argument to the jury, and desires that he be further rebuked, it is his duty to request it; otherwise, he will not afterwards be heard to complain of the remarks.
    5. -: General Objection. An objection to statements by the prosecuting attorney, made either in his opening statement or in subsequent argument to the jury, should give some specific reason why they are objectionable, and if none is given the court is authorized in overruling the objection.
    Appeal from Jackson Criminal Circuit Court. — Hon. Ralph 8. Latshaw, Judge.
    Affirmed.

      Lloyd Marts and Broaddus é Grow for appellant.
    (1) The weapon used, if any, was not described to the jury and it was not introduced in evidence so they could view it, so that there is no evidence in the case proving or tending to prove that the defendant used a dangerous and deadly weapon. What is a dangerous and deadly weapon is a question of fact and there must be some evidence tending to show that fact before the issue can he submitted to the jury, and there being no such evidence in the record, it was clearly erroneous for the court to give instruction number 3 submitting that issue to the jury,, (a) If there is any evidence in this case tending to prove the use of a dangerous and deadly weapon by defendant in causing the death of Charles Donahue, then the court clearly erred in failing to instruct the jury on manslaughter in the third degree, all the elements of manslaughter in the third degree being present, if there was any evidence of the use' of a dangerous and deadly weapon, viz., heat of passion, self-defense, involuntary hilling with a dangerous and deadly weapon. The error in failing to instruct the jury on manslaughter in the third degree is very clear; if there was any evidence of the fact the jury would well have found under this evidence that the defendant used a dangerous and deadly weapon in the heat of passion without intending to kill Charles Donahue and they were precluded from finding defendant guilty of manslaughter in the third degree because under instruction number 4 to find defendant guilty of manslaughter it was necessary for them to find affirmatively that no deadly or dangerous weapon was used. It was the duty of the jury if they found that a dangerous and deadly weapon was used, to return a verdict of murder in the second degree when clearly the evidence entitled the defendant to a submission under manslaughter in the third degree, and this defendant was thereby deprived of a substantial right to a fair trial on account of the error of the court in failing to so instruct. State v. Elliott, 98 Mo. 150; State v. Wilson, 98 Mo. 440; State v. Peak, 85 Mo. 193; State v. Hanson, 231 Mo. 14. (2) The prosecuting attorney in this case in his opening statement, the examination of witnesses and in his argument paraded before the jury and urged to the court in the presence of the jury both in statement, argument and -offers to prove that defendant was to blame for alleged misconduct of Mrs. Miller and also for the serious condition of health of Mrs. Donahue, mother of deceased. The presentation of incompetent, irrelevant and immaterial matters to the jury in this case was so vigorous and persistent that this court must necessarily find that the act of the prosecuting attorney was for the purpose of poisoning the mind of the jury and preventing defendant having a fair and impartial trial of his case, and the court must find that the prosecuting attorney accomplished his purpose. State v. Wellman, 253 Mo. 302; State v. Webb, 254 Mo. 414. (3) Instruction number .nine is erroneous. The first part of this instruction is that the defendant had a right to defend himself if “the deceased was about to kill defendant or to do him some great bodily injury.” This declaration of law is clearly erroneous and is not cured by the balance, of the instruction. It is not the law that the defendant had the right to defend himself if the deceased was about to kill defendant or do him some great bodily harm. These words are disconnected; they appear in an entirely separate sentence from the balance of the instruction and the attempt to declare the law afterwards does not cure the clear, distinct, erroneous rule announced in the first sentence of the instruction, in fact the two are so inconsistent and contradictory that both cannot stand.

      John T. Barker, Attorney-General, and S. P. Howell for the State.
    (1) Under the particular circumstances of this case the court properly admitted evidence concerning the preliminary difficulty for the purpose of showing malice or motive which prompted the homicide. The defendant rested his case upon the right of self-defense, while the theory of the State, was the homicide was but the culmination of the bitter feeling engendered in the controversy which occurred near the home •of Charles Donahue. It is manifest, therefore, that it was exceedingly important for the jury to have placed before them the facts connected with the preliminary •difficulty in order that they might determine who was the aggressor and what, if any, motive the defendant had in striking the fatal blow at the Labello saloon. The rule is well established that evidence of a prior difficulty than the crime for which the party is on trial is admissible when such testimony tends to make clear the matter under investigation or to show the malice which was given expression in the .crime committed. 21 Cyc. 894; State v. Tettaton, 159 Mo. 377; State v. Goddard, 162 Mo. 229; State v. Dettmer, 124 Mo. 433; State v. Monnce, 106 Mo. 229; State v. Mounce, 106 Mo. 229; State v. Hyde, 234 Mo. 237; State v. Endolph, 187 Mo. 85; State v. Turner, 246 Mo. 617; 2 Wharton’s Crim. Evidence (10 Ed.), p. 1726. (2) In appellant’s brief he makes the definite assignment of error that the court failed to instruct on manslaughter in the third degree. This assignment is not properly preserved for review on appeal, yet an examination of the evidence discloses that the facts did not justify an instruction on manslaughter in the third degree. It is clearly provided in Sec. 4462, E. S. 1909, that manslaughter in the third degree cannot exist when the killing is intentional. There is abundant evident showing the existence of a previous grudge and that the defendant gave utterance to the threat at the time of the preliminary difficulty in front of decedent’s home that, “I will get you later,” which facts preclude any claim that the killing was not intentional. In the execution of that threat, the State submitted proof that the defendant struck the deceased with a deadly and dangerous weapon, which fact was evidenced by the death of Donahue, which followed almost instantly after the blow was delivered. There is an entire absence of proof, and, in fact, no pretense is made by the defendant that the blow was given with any other purpose or design than to effect death. The defendant under the facts of this case either acted in self-defense or was guilty of murder in the second degree or manslaughter in the fourth degree. Sec. 4462, E. S. 1909; Kelley’s Crim. L. & Pr., sec. 496, p. 440; State v.’Pettit, 119 Mo. 416; State v. Watson, 95 Mo. 415; State v. Dunn, 80 Mo. 688; State v. Vinso, 171 Mo. 591; State v. Barutio, 148 Mo. 255; State v. Strong, 153 Mo. 555; State v. McKenzie, 228 Mo. 401; State v. Hanson, 231 Mo. 26. (3) The text writers and the decisions of this court clearly recognize the rule that the question whether a weapon is deadly may be inferred from the fact that it produces death under the particular circumstances used, even in the absence of any evidence on the trial as to its quality or dimensions. Wharton on Homicide (3 Eld.), p. 136; State v. Bowles, 146 Mo. 13; State v. Grant, 152 Mo. 69; State v. Drumm, 156 Mo. 219; State v. Gartrell, 171 Mo. 507; State v. John, 172 Mo. 225; State v. Harris, 209 Mo. 429; State v. Dunn, 221 Mo. 541; State v. Belfiglio, 232 Mo. 235;. State v. Keener, 225 Mo. 496; Plamilton v. People, 113 111. 38;' State v. West, 51 N. C. 506. (4) In instruction number nine the law, as to the right of self-defense, is correctly stated. State v. Banks, 167 S. C. 505; State v. McCarver, 194 Mo. 729; State v. Groves, 243 Mo. 550; State v. Lewis, 248 Mo. 508. '
   WALKER, J.

In an information filed by the prosecuting attorney of Jackson county the defendant was charged with murder in the second degree in having killed one Charles Donahue. Upon a trial defendant was convicted as charged and his punishment assessed at ten years’ imprisonment in the penitentiary. Prom this judgment he applied for and was granted an appeal to this court and a stay of execution was ordered upon his giving the bond required.

The deceased, a young man with a disabled hand, lived with his old and invalid mother at 315 East Eighteenth street in Kansas City. The defendant lived across the street with his family, consisting, so far as the record shows, of his wife and- a little girl eight or nine years of age. The afternoon preceding the homicide the defendant and his wife became very much incensed at the Donahues, because, as defendant’s wife charged, a sister of the deceased had, in sprinkling the lawn, thrown water on the defendant’s little girl. Later, at about six o’clock p. m., an officer was called to the scene to quell the disturbance caused by the loud and boisterous conduct of defendant’s wife. Upon his arrival the officer found defendant and his wife in front of the residence of old Mrs. Donahue. The deceased said he did not desire defendant and his wife arrested, but asked the officer to take them away, as his mother was very ill and their conduct was annoying her. The wife was drunk, with uncovered head and dishevelled hair, and loudly and profanely abused 'the Donahues. The defendant attempted to drag her away, but from time to time shook his fist and hurled imprecations at the Donahues. When the officer asked defendant the nature of the trouble he said that Charles Donahue had struck his wife. The officer asked him if he wanted Donahue arrested, to which he replied, “I will take care of that myself,” or “I will get him later.” The officer drove the defendant and his wife away, and upon their promise not to return let them go without arresting them.

About 8:30 o’clock that evening the deceased, accompanied by two others, went into a saloon in the immediate neighborhood to get a glass of beer. At the time there were in the saloon, in addition to the bartender, three others, one of them a brother of defendant. Soon thereafter defendant came in and he and the deceased clinched, and after a short struggle defendant broke away and, running behind the bar, asked the bartender to give him a revolver. The latter complied, but immediately thereafter took the pistol away from the defendant and pointing it at the deceased and his two associates ordered them out of the saloon. While this was occurring the brother of the defendant struck, first the deceased, and then one of his associates, felling the latter to the floor. The two who had entered with the deceased then ran out of the saloon followed by the brother of the defendant, and the deceased fell out of the saloon door as the result of a blow on'the the back of the head from a rock in the hand of the defendant. The deceased struck the sidewalk face downward, and as he fell the defendant ran out and kicked or stamped him on the head and neck. From the injuries thus received the deceased died before he was removed to his mother’s home near by. The autopsy disclosed contused wounds -on his face, different parts of his head and the back of his neck, and that the latter was broken. The deceased was not under the influence of liquor at the time he was assaulted, and no weapons of any.character were found on his person.

Defendant’s witnesses testified that the deceased was the aggessor; that with two others he entered the saloon, called for beer, and seeing defendant said, ■“Joe Miller, I am looking for you,” and followed this with an attack upon defendant; that Miller ran behind the bar and asked the bartender for his pistol. The latter says he refused, but ordered the parties out of the saloon. The deceased then tried to hit the defendant with something or to cut him, but the 'witness, who was the bartender, could not state the nature of the weapon. In the main the witnesses for the defense corroborated the testimony of the defendant. Aside from the Millers those present were Labello, the bartender, O’Neilio and Tempo sky — names -indicative of Italian and Galician origin, this aside, however, save to add that the jury did not believe those who testified for the defense.

After defining the technical words employed in an indictment or information charging murder, the court instructed the jury on murder in the second degree; manslaughter in the fourth degree-; what testimony must be excluded in determining the intent with which the act was done; stating the extent of the presumption of innocence; defining a reasonable doubt; and the right of self-defense, if it was found that he deceased was about to do the defendant some bodily harm; and as to the credibility of witnesses and the weight and value to be given their testimony.

Pour assignments are urged as constituting error: (1) That in the absence of testimony to show the character of a dangerous and deadly weapon, in this case a rock, charged in the information to have been used by defendant in striking the fatal blow, an instruction for murder in the second degree was not authorized; (2) Instructions for manslaughter in the third degree. should have been given; (3) that the instruction in regard- to self-defense was erroneoils; and (4) that the conduct of the prosecuting attorney was prejudicial.

I. Proof of Nature of Weapon. — The testimony showed that the defendant struck the deceased on the back of the head or at the junction of the skull and cervical vertebrae with a rock, which dislocated or broke the neck of the deceased and caused a hemorrhage from which death immediately ensued. The rock was alleged in the information and the instructions to have been a dangerous and deadly weapon, but it was not described in the testimony, nor was it produced at the trial. This was not such a failure of proof as to constiute error. If it was shown by the testimony that the effect produced by defendant striking the deceased with the rock was an injury from which he died, it was sufficient evidence of the deadly character of the weapon employed. A deadly weapon is one by which death would likely be produced when used in the manner in which the testimony shows that it was used in this case. That it was so used was testified to by witnesses, and it does not follow, because its exact dimensions were not described and there was no direct proof as to its dangerous or deadly character, that such character was not shown by the effect resulting from its use.

In discussing the character of the weapon used we would not be understood as holding that it was necessary for the information to charge that the offense was committed with a deadly weapon, but this fact is stated incidentally in dealing with the presumption arising from the use of such a weapon and the sufficiency of the evidence to establish its nature. The rule thus announced is fully sustained by this court in State v. Bowles, 146 Mo. l. c. 13. Holding as we do that the use of the words “with a deadly weapon” in the information was unnecessary in the instant case, because of the proof as to the fatal character of the wound inflicted, the employment of the words referred to may be considered as surplusage and direct proof of the nature of the weapon may be dispensed with. This distinction is clearly made in the case of State v. Harris, 209 Mo. 423, in which the general rule announced in the Bowles case, supra, is, under a proper state of facts, approved. The distinguishing features between these two cases being that in the Harris case testimony as to the knife shown to have been used or the wounds inflicted was not' such as to authorize the assumption that at a matter of law the wound was inflicted with a deadly weapon, but upon it having been shown that the weapon was “a little four-bladed pocketknife” it was held that whether or not it was a deadly weapon, in the absence of proof that the wound inflicted indicated the use of such a weapon, should have been submitted to the jury as a predicate to the presumption the court invoked for the purpose of allowing the jury to infer a felonious intent to kill. No such limitation as is found in the Harris case is present in the instant case — the evidence in the latter more nearly conforming to the facts in the Bowles case and those in State v. Keener, 225 Mo. 488, which must be held to be ruling-authorities in regard to the proof necessary to show the use of a dangerous and deadly weapon and as a consequence to authorize the giving of an instruction for murder in the second degree.

II. Manslaughter-. Third Degree. — It is contended that error was committed in not giving an instruction for manslaughter in the third degree.

The statute tersely defines this degree of homicide to be “the killing of another in a heat of passion without a design to effect death, by a dangerous weapon, in any case except such wherein the killing of another is justifiable or excusable.” [Sec. 4462, R. S. 1909.]

In construing this statute this court holds that the provision “without a design to effect death” means that the killing must have been unintentional. [State v. Prince, 258 Mo. l. c. 329, and cases cited; State v. Elliott, 98 Mo. l. c. 156.]

The facts must determine whether the killing in the instant case was of such a nature as to bring it within the st?+ute defining manslaughter in the third degree.

In the altercation which occurred between the parties before the residence of the mother of the deceased the afternoon preceding the homicide, the defendant' declared to the police officer that he would “get the deceased later.” This threat, supplemented by the fact that the defendant after the scuffle with the deceased in the saloon attempted to procure a pistol from the bartender to shoot the deceased, sufficiently determines the intention of the defendant and tends to prove malice. In the presence of these facts the trial court did not err in refusing to instruct for manslaugh ter in the third degree, because it cannot be said that the killing was not intentional. [State v. Hanson, 231 Mo. 14; State v. McKenzie, 228 Mo. 385; State v. Robertson, 178 Mo. 496; State v. Vinso, 171 Mo. 576; State v. Pettitt, 119 Mo. l. c. 416.]

We have examined the cases cited by the appellant in support of the proposition that an instruction for manslaughter in the third degree should have been. given, and find that they do not sustain appellant’s contention, on account of the facts therein being at a variance with those in the instant case.

III. Self-Defense.- — Appellant contends that the instruction for self-defense is erroneous. This instruction contains all the necessary elements to authorize the jury to acquit defendant if they found that the facts presented a case of self-defense. Almost an exact counterpart of the instruction is to be found in State v. McQuitty, 237 Mo. 232. If other precedents were necessary to sustain the instruction, they may be found in State v. Tooker, 188 Mo. l. c. 446, and State v. McCarver, 194 Mo. l. c. 729, which, while differing in phraseology, contain all the essential elements to be found in the instruction under review and follow a long-line of cases on self-defense beginning with State v. Shoultz, 25 Mo. 128.

Interpreted according to its own words and context, the instruction under review is not fairly subject, to appellant’s criticism. It is neither to be read nor-construed by piecemeal, but altogether. Thus read it. is a plain and correct statement of the law in regard to self-defense. We hold, therefore, that the appellant’s-contention in this regard is without merit. ,

IY. Conduct of State’s Attorney. — The conduct, of the prosecuting attorney is complained of. An examination of the transcript shows that where objections to the alleged improper conduct were made, the-court in all except one or two instances, which we will note later, sustained the objections and cautioned the-prosecuting attorney to keep within the record, and in addition formally instructed the jury to disregard all-testimony in regard to any trouble between the deceased and the wife of the defendant in the absence of the latter. If the appellant had desired that the prosecuting attorney be further rebuked he should have requested same. This is a rule too well established to necessitate the citation of authorities to sustain it. In the instances where the court refused to sustain appellant’s objections no such objections were made and exceptions saved as to authorize our reviewing the matter complained of. Certain remarks of the prosecuting attorney in his argument to the jury are especially alleged to be error — this entire argument unnecessarily encumbers the record when only the portions complained of should have been preserved. In the one instance the objection made by counsel for the appellant was in this language: “We object to that because it is contrary to and in violation of the instructions of the court. We ask for a ruling of the court on it.” If for no other reason, the court was authorized on account of no specific reason being stated in the objection to overrule same, which was done. In the other instance the remark complained of was, as is shown by the record, justified by testimony introduced and remarks made by counsel for the appellant. In addition, the objection urged against the same was simply: “We object to the remarks of the court and the remarks of the prosecuting attorney.” In neither of these instances was the attention of the court called to the objectionable nature of the remarks so as to enable it to rule intelligently thereon. Under this state of facts the errors complained of are not preserved in such a manner as to authorize us to review them. If authorities are necessary to sustain this conclusion they will be found in the respondent’s brief.

Finding no prejudicial error in this case, and there being no question as to the guilt of the appellant, the judgment of the trial court is affirmed, and it is so ordered.

All concur, Faris, P. J., in result.


author: ROT, O.

text:
    THE STATE v. ARTHUR COX, Appellant.
    Division Two,
    March 30, 1915.
    1. ARSON: Corpus Delicti. The corpus delicti in arson is the burning of the house by the wilful act of some person criminally responsible for his acts, and not by natural or accidental causes.
    2. -: -: Confession: Corroborating Circumstances. A confession made out of court must be supported by independent proof of the corpus delicti, but it is sufficient if there be such extrinsic corroborative circumstances as will, taken in connection with the confession, produce conviction of the defendant’s guilt.
    3. -: -: -: -: Other Fires: Evidence. The general rule is that, on a trial for arson, evidence as to other fires at or about the same time and place is inadmissible, but .if it tends to directly connect the defendant with the burning alleged in the information, -to establish intent, or to show the incendiary origin of the fire, it may be received.
    4. -: -: -: -: -: -: This Case. Where the evidence shows that the defendant, on trial for arson, was present at three fires which broke out at night between 11:45 and 1 o’clock; that shortly before the first, and again before the last, he borrowed matches at restaurants near by; and that he was seen running along the street looking backward just before the first was discovered, it is held that there was sufficient proof of the corptis delicti >to support the defendant’s confession made out of court and, with the confession, to sustain his conviction on a charge of setting the third fire.
    5. MOTIVE: Absence of: Instructions. Absence of apparent motive for a crime does not authorize an acquittal and does not call for an instruction on that subject.
    6. INSTRUCTIONS: Extrajudicial Statements: Confession. Although it would have been proper for the court in a criminal trial to give a cautionary instruction concerning an alleged confession of the defendant, still the failure to give it was not error, where the court’s attention was not called to the point either at the trial or in the motion for a new trial, and a proper instruction was given concerning statements or admissions made out of court.

      7. -: -: -: Corpus Delicti. The fact that an instruction in a criminal trial says that any statement of the defendant against himself is presumed to be true does not render it erroneous where his extrajudicial confession is supported by other evidence to prove the corpus delicti.

    8. PRELIMINARY EXAMINATION: Refusal to Grant: Motion: Appeal. In the absence of a proper motion calling the court’s attention to the matter, a case will not be reversed for refusal to grant a preliminary examination upon an amended information.
    9. INSTRUCTIONS: Guilt to be “Shown” Beyond Reasonable Doubt. An instruction in a criminal trial is not rendered erroneous by the fact that it said the defendant was presumed to be innocent until his guilt was “shown” (instead of “proved”) beyond a reasonable doubt.
    Appeal from Audrain Circuit Court. — Eon. James D. Barnett, Judge.
    Affirmed.

      Clarence A. Barnes for appellant.
    (1) The corpus delicti of arson in the third degree was not proven: first, a criminal act; second the defendant’s agency in the production of a criminal act. State v. Jones, 106 Mo. 302. (2) The alleged confession of defendant was not supported hy independent proof of the corpus delicti. State v. Young, 237 Mo. 170; Rohinson v. State, 12 Mo. 592; State v. Scott, 39 Mo. 424. (3) There is no proof of an inducing motive for the burning of the building by defendant, that, he anticipated any benefit from its burning, or that he entertained any malice or ill will towards its owners or occupants, and the same should be taken into consideration. State v. Morney, 196 Mo. 51. (4) The court erred in permitting the State to introduce evidence of the burning of other buildings than the one charged in the information, and in permitting the prosecuting attorney to refer thereto in his opening-statement and in his argument. State v. Goetz, 34 Mo. 85; State v. Toting, 119' Mo. 495; State v. Apperger, 80 Mo. 173; State v. Crosswhite, 130 Mo. 358; State v. Taylor, 136 Mo. 66. (5) ’Th amendment of the information and forcing the defendant to trial without first giving him a preliminary examination on the amended information was error. Laws 1913, p. 224. (6) Instruction 3 offered on the part of the State was error for the reason that it failed to properly caution the jury with reference to the so-called confession of the defendant. State v. Peters, 234 Mo. 572; Baldwin v. State, 12 Mo. 223; Robinson v. State, 12 Mo. 596; State v. Toung, 237 Mo. 170; State v. Jones, 54 Mo. 478; State v. TIopkirk, 84 Mo. 278.

      John T. Barker; Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
    (1) The corpus delicti was'sufficiently proven ac- • cording to the decisions of this court. State v. Jones, 106 Mo. 302, cited by the appellant, in every way substantiates the proof of the corpus delicti in the case at bar. There was not a mere suspicion of guilt in this case. The appellant admitted he set the fire, and the burning of the barn was clearly proven. The cases cited by the appellant are not in point, and there is no merit in this contention. (2) The alleged confession was supported by other proof. In this case the burning of the barn was proven, and together with this the appellant confessed to burning same. Appellant’s contention is without merit, and the proof of the burning of the bam sufficiently supports the confession. The evidence is ample to support the verdict of the jury. (3) Proof of motive is not necessary. (4) Error was not committed in allowing in evidence the burning of the other buildings. The evidence of the commission of other offenses is admissible where the identity of the defendant was a controverted question. State v. Hubbard, 201 Mo. 639; State v. Hyde, 234 Mo. 200. Similar crimes committed at or near the same time are admitted in evidence. State v. Bailey, 190 Mo. 257; State v. Toohey, 203 Mo. 674; State v. Sechrist, 226 Mo. 574. (5) When the information is amended it is not necessary that the appellant he given , another preliminary hearing. (6) In view of the authorities in this State, and especially the case of State v. Creeley, 254 Mo. 382, where instruction 3 was approved after much discussion, it cannot be successfully contended by the appellant a prejudicial error was committed by the court in giving the same. State v. Creeley, 254 Mo. 396; State v. Merkel, 189 Mo. 321; State v. Howell, 117 Mo. 307; State v. Wisdom, 119 Mo. 539; Green v. State, 13 Mo. 392.
   ROT, O.

Defendant was convicted of arson in the third degree and sentenced to two years in the penitentiary. The amended information is in the usual form and charges him with burning a barn belonging toi Willard Potts and Susan Potts on November 12, 1913. On the night of that day three fires occurred between the hours of 11:45> p. m. and 1 a. m., and all within a very short distance of each other and of the Chicago & Alton station in the city of Mexico. The first fire was in a coal or wood shed back of Creasy’s second hand store; the second in a barn back of the printing company’s place of business; the third in Potts’s barn north of the railroad, about a hundred and fifteen or twenty feet from the station. A few minutes before the first fire the defendant went into Genrich’s restaurant and got some matches, which was a usual thing for him and others to do. A few minutes later he was seen running along the street looking back, then running into an alley. Then followed the first fire, and after twenty or thirty minutes the second fire broke out. Defendant was seen at all the fires. At the second fire he was heard to say to his uncle Tom Cook, “Let’s leave here.” Just before the third fire he got matches at Winan’s restaurant. One witness testified that defendant was ‘ ‘ canning beer ’ ’ that nigbt. Another said that he was ‘‘ drinking. ’ ’

The last fire was the one for which defendant was convicted. State’s counsel, over defendant’s objection, was permitted to include the first two fires in his statement to the jury and to introduce evidence in regard to them. There was evidence that a train came in just before the last fire and that the wind was from the southward, blowing from the tracks towards the barn, and that at times locomotives had been known to throw sparks 25 feet high.

There was evidence that the last fire began in the • loft of the barn in some baled hay or straw.

There was no evidence showing motive for the deed. Defendant was arrested that night, and the next morning he stated in the presence of the prosecuting attorney, sheriff and others, that he set all three of the fires. The State’s witnesses stated that no improper method was used to obtain the confession, and there was no evidence to the contrary.

The court gave the usual instructions including the one on the subject of statements made by the defendant out of court. The fourth instruction told the jury that the defendant was presumed to be innocent until his guilt was “shown” by the evidence beyond a reasonable doubt.

Just before the trial began,. the State was permitted to amend the information by interlineation so as to show Susan Potts as one of the owners of the barn. Defendant then orally asked that he be accorded a preliminary examination on the information as amended. The request was refused, but there was no motion in regard to that matter.

I. The corpus delicti in arson is the burning of the house by the wilful act of some person criminally responsible for Ms acts, and not by natural or accidental causes. [State v. Jones, 106 Mo. l. c. 312; 1 Whar., Crim. Ev. (10 Ed.), sec. 325a.]

“A confession of the crime charged, made out of court by the accused, must be supported by independeD-t proof of the corpus delicti; that is, by proof that a crime was in fact committed. ’ [State v. Young, 237 Mo. l. C. 177, and cases there cited.]

In State v. Knowles, 185 Mo. l. c. 177, it was said that full proof of the corpus delicti, independent of the confession of the defendant, is not required; and that it is sufficient if there be such extrinsic corroborative circumstances as will, taken in connection with the confession, produce conviction of defendant’s guilt.

Appellant contends that, outside of the alleged confession, there is no evidence of the corpus delicti. In connection with that proposition it is urged that the evidence as to the two other fires was improperly admitted. The general rule is that evidence as to other fires at or about the same time and place is inadmissible, “but if it tends to directly connect defendant with the burning alleged in the indictment, to establish intent, or to show the incendiary origin of the crime, it may be received. [3 Cyc., 1007.] In State v. McMahon, 17 Nev. 365, testimony as to ten other fires within two months in the same town was held proper in order to show that the fires were of incendiary origin.

In England, in Reg. v. Dossett, 2 C. & K. 306, the defendant was charged with setting a hayrick on fire by discharging a gun close to it. Evidence was admitted showing that on another occasion defendant was seen with a gun in his hand near the rick which was then on fire. In Rex v. Long, 6 C. & P. 179, decided at nisi prius in 1833, the defendant was charged with burning three hayricks, each belonging to a different person, they being burned one immediately after the other, and in sight of each other. There were separate indictments for each rick. A confession as to all three was put in evidence, and an accomplice testified as to all three as constituting part of the same transaction.

In Reg. v. Gray, 4 F. & F. 1102, the prisoner was accused of burning his house for the insurance. Evidence was admitted to show that twice before defend^ ant had collected insurance for successive fires, in order to show that the fire in question was of incendiary origin.

In Sawyers v. Commonwealth, 88 Va. 356, it was said: ‘‘Among the chief indicia which go to substantiate at once the corpus delicti and the guilt of the prisoner in a case like this, say the authorities, are the circumstances that the fire broke out suddenly in an uninhabited house, or in different parts of the same building, and that the accused had a cause of ill will at the sufferer, or had been heard to threaten him. ’ ’

One fire unexplained ordinarily raises no presumption of incendiary origin. Two at the same time and place put people on the alert to know why they occurred. Three are sufficient to put the police on the track of the supposed incendiary. While those fires were bursting out ope by one, the defendant twice procured matches near the fires. True, as the evidence shows he often got matches in that way.' Each of those fires, and each of those acts of procuring matches considered solely and by itself, is perfectly free from a suggestion of guilt. But when they are compounded, and in that compound the defendant can be seen running along the street at midnight, looking back, we are forced to say that here is proof of the corpus delicti independent of defendant’s confession, and that there is ample evidence of defendant’s guilt.

II. The point is made that the evidence fails to show any motive for the defendant to commit the crime. Absence of apparent motive does not authorize an acquittal and does not call for an instruction on that subject. [State v. Brown, 168 Mo. l. c. 473; State v. David, 131 Mo. l. c. 397.] In State v. Morney, 196 Mo. l. c. 51, the judgment was reversed and defendant discharged because there was neither motive nor substantial proof of guilt shown by the evidence.

III. Instruction 3 given for the State on the subject of statements or admissions made by the defendant out of court was in accordance with the form approved in State v. Wisdom, 119 Mo. l. c. 552; State v. Howell, 117 Mo. l. c. 323, and State v. Merkel, 189 Mo. 321.

Appellant says that such instruction is erroneous because it- fails to caution the jury as to the so-called confession of defendant. It is enough to say that the instruction as given was correct. It would have been proper for the court to give a cautionary instruction on that subject, but none was asked by defendant, and the court’s attention was not called to that point either on the trial or in the motion for a new trial. The following additional objection to that instruction is made in defendant’s brief:

“Said instruction was erroneous for the reason that it states that any statement of the defendant against himself was presumed to be true, which is not correct in so far as it relates to extrajudicial confessions unless corroborated by other evidence, which limitation was not incorporated in said instruction, nor was the jury cautioned with reference thereto. ’ ’ The same point was made in State v. Knowles, supra, and ruled against the appellant.

XV. The refusal of a preliminary examination will not avail to reverse the case in the absence of a proper motion calling the court’s attention to that fact. [Ex parte Buckley, 215 Mo. l. c. 99; State v. McKee, 212 Mo. 138.]

The use of the word ‘ ‘ shown” in place of the usual word “proved” in the instruction as to presumption of innocence does not impair the mer- ...... .. its of that instruction.

The judgment is affirmed.

Williams, C., concurs.

PER CURIAM. — The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All the judges concur.


author: WILLIAMS, C.

text:
    THE STATE v. WILLIS CLINE, Appellant.
    Division Two,
    March 30, 1915.
    1. INDICTMENT: Conclusion: Murder: Stating Name of Person Killed: Common Law. The common-law rules governing the proper form for closing an indictment for murder apply in Missouri, and therefore the name of the person alleged to have been killed must be stated in the conclusion of the indictment. ■'
    2. -: -: -: -: --: Information. The rules of the common law concerning indictments for murder are also applicable to informations charging murder.
    3. -: -; -;--:--: -: Cause Reversed and Remanded. A judgment of conviction for murder, under an information that failed to state in its conclusion the name of the person killed, will be reversed and the cause remanded. The Statute of Jeofails (Sec. 5115, R. S. 1909) does not cure the error.
    Appeal from Dallas Circuit Court. — Hon. C. H. Skinker, Judge.
    Reversed and remanded.

      John 8. Haymes and O. H. Scott for appellant.
    (1) In the conclusion of the information in this case it does not allege whom the defendant killed and murdered. In the case of State v. Pemberton, 30 Mo. 376, the conclusion of an indictment almost identical with the information in this case was held bad. This ruling has been discussed and approved in the following cases: State v. Meyers, 99 Mo. 114; State v. Stacy, 103 Mo. 11; State v. Rector, 126 Mo. 341; State v. Gleason, 172 Mo. 266; State v. Campbell, 210 Mo. 216. (2) Any defect in an indictment or information that is available in a motion in arrest is available in the appellate court; and the higher court will examine the record to discover defects whether a bill of exceptions is filed or not. State v. Meyers, 99 Mo. 107; State v. Meysenburg, 171 Mo. 1; State v. Gregory, 178 Mo. 48; State v. Nunley, 185 Mo. 102.

      John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
    (1) It does not appear from the record proper that a bill of exceptions was ever filed. There can he nothing before this court for review other than the record proper even if the appeal has been duly perfected. Shamwell v. McKinney, 214 Mo. 692; Wright v. Seiffle, 214 Mo. 694; Pennoffsky v. Crower, 205 Mo. 135; State v. Paulgrow, 20;3 Mo. 204. (2) The information follows the statute and is in approved form. Sec. 4448, R. S. 1909; Kelley’s Crim. L. & Pr. (3 Ed.), sec. 474; State v. Turlington, 102 Mo. 642; State v. Hudspeth, 150 Mo. 19; State v. Clay, 201 Mo. 686; State v. Horn, 204 Mo. 528.
   WILLIAMS, C.

Upon an information purporting to charge him with the crime of murder in the first degree, defendant was tried in the circuit court of Dallas county, found guilty of murder in the second degree and his punishment assessed at imprisonment in the penitentiary for a term of twenty years. Appellant has failed to file a bill of exceptions and the appellate review is therefore limited to a review of the record proper.

It is contended by appellant that the information is defective in that the conclusion of the information fails to state the name of the person murdered. The portion of the information thus attacked is as follows: “And so the prosecuting attorney aforesaid, upon his official oath aforesaid, doth say, that the said Willis Cline, at the county and State aforesaid, in the manner and by the means aforesaid, feloniously, wilfully, deliberately, premeditatedly, on purpose and of his malice aforethought did kill and murder; against the peace and dignity of the State.” The common-law form of indictment for murder requires that the name of the person murdered be stated in the conclusion of the indictment. [State v. Meyers, 99 Mo. 107, l. c. 115, and authorities therein cited.] “At common law great strictness and technical accuracy was exacted as to the conclusion of the indictment for murder.” [21 Cyc. 858.] The reason for this, no doubt, was that, “All the authorities show the proper conclusion of an indictment for murder marks the feature of that offense which distinguishes it from.manslaughter.” [State v. Meyers, supra.] Absent a constitutional provision or proper legislative enactment prescribing or permitting a different form, the forms of indictments for murder in this State are to be measured by the rules of the common law in that behalf prescribed. [State v. Sanders, 158 Mo. 610, l. c. 612; State v. Cook, 170 Mo. 210, l. c. 214.] And the rules of the common law concerning indictments for murder are also applicable to informations charging murder. [State v. Dawson, 187 Mo. 60, l. c. 65-6; State v. Minor, 193 Mo. 597.] The only statutory enactment which might be claimed to cure the defect here shown is section 5115, Revised Statutes 1909, commonly known as the Statute of Jeofails, applicable to pleadings in criminal eases. Yet in passing upon the identical point here involved it has been held that the above-mentioned defect is not cured by said statute, but that the indictment by reason of such a defect is fatally defective. [State v. Pemberton, 30 Mo. 376, l. c. 378-9.] In passing upon the question as-to whether the defective indictment was cured by said Statute of Jeofails, Judge Napton, speaking for the court in the above case, said:

“If the design of our Legislature had been to change the entire system of criminal pleading, they undoubtedly would have supplied a substitute for the one abolished. They have done so in civil proceedings, but in criminal proceedings changes, when made, have been specific. The ancient forms of proceedings have been retained, with specific modifications; and it is only from the clause we are now called upon to construe that any inference can be drawn of a design on the part of the Legislature to abolish the entire system of criminal pleading. To give so liberal and latitudinous a construction to this clause, would undoubtedly destroy many if not all of the forms which have been hitherto observed. It would be, in truth, to put civil and criminal proceedings on the same footing, and allow the prosecution to make, as in civil proceedings, ‘a plain and concise statement of the fact’ constituting the offense, without regard to mere technical phrases and forms.

“The court does not feel warranted in giving such a construction to an isolated clause of a statute, the general tenor of which is sufficient to show that no such sweeping and radical changes were designed.” [Id. l. c. 379.]

It therefore follows that by reason of the defective information the judgment must be reversed and the cause remanded. It is so ordered.

Roy, G., dissents.

PER CURIAM. — -The foregoing opinion of Williams, 0., is adopted as the opinion of the court.

All the judges concur, Brown, J., in result only.