text:
    THE STATE v. WILLIAM POWERS, Appellant.
    Division Two,
    February 17, 1914.
    1. RECEIVING STOLEN PROPERTY: Felonious Intent: Rule in this State. At common law the burden rested upon the State to prove that a defendant charged with receiving stolen property received it with the felonious intention of depriving, or aiding in depriving, the true owner of his property. But there is no rule that prevents the General Assembly from restricting. the operation of the common law, and that has been done by Sec. 4554, R. S. 1909, whereby a prima-facie case of feloniously receiving stolen goods is made out against a defendant by proof that he received the goods “knowing the same to have been stolen,” and therefore proof of a felonious or unlawful intent is. not necessary. But. if defendant received the stolen property with an intention of returning it to the true owner, that is a matter of defense, but in the absence of any evidence of such intention it is not error to omit from the instruction all reference to such intention.
    2. -: Twenty Dollars From Each of Three Thieves: One Transaction. Five thieves robbed a Gypsy of $8000 in gold coin, brought it to defendant’s saloon, poured it out on the floor and made a division among themselves by “each grabbing it up as fast as possible. There was evidence that defendant, when the stolen money was being thus divided, intimated that if the thieves would give him part of the money he would probably secure bonds for their release in case they should be arrested, and thereupon each of them gave him a handful of the stolen coins; and the police officer, who arrested defendant next morning, testified for the State that he admitted to him that three of the thieves each gave him $20 of the stolen gold, making $60 in the aggregate. Held, that the act of defendant in receiving the said $60 did not amount to three separate crimes of receiving stolen money in “such small amounts ($20 each) as to constitute only misdemeanors, but it was all one transaction, namely, receiving $60 in response to a joint promise to secure bonds for the thieves in case they were arrested.
    3. -: Instruction: Declarations' Made Out of Court. On the authority of State v. Creeley, 254 Mo. 382, an instruction telling the jury how to weigh statements proven by the State to have been made by the defendant after the crime was committed, is approved.
    Appeal from St. Louis City Circuit Court. — How. Leo 8. Rassieur, Judge.
    Affirmed.

      John A. Gernez for appellant.
    (1) The failure of the court in its instruction to the jury requiring the receiving to have been done with an unlawful and felonious intent was reversible error. 1 Bish. New Cr. Law, sec. 567-71; 4 Black. Comm. 132; Hughes’ Crim. Law, sec. 665; 1 Wharton, Crim. Law, sec. 88; State v. McAdoo, 80 Mo. 219; 1 McClain’s Cr. Law, sec. 717; Rapalje on Larceny, sec. 311-316; 2 Bish. Cr. Law, sec. 1138-42; People v. Avilla, 43 Cal. 196; State v. Pelts, 3 Blackf. (Ind.) 28; People v. Johnson, 1 Park. Crim. (N. Y.) 564; People v. Miller, 25 Hun (N. Y.), 473; People v. Chatterton, 15 Abb. 'Prac. (N. Y.) 147; People v. Hartwell, 166 N. Y. 361; State v. Rushing, 69 N. C. 29; State v. Caveness, 78 N. C. 484; State v. Crawford, 39 S. C. 343^ State v. Hurrell, 5 Humph. (Tenn.) 68; State v. Rice, 3 Heisk. (Tenn.) 215; Comm. v. Hey, 32 Q-ratt. (Ya.) 946; State v. Sweetem, 75 Mo. App. 134. (2) The law of the cases is that when a statute makes criminal an act not malum in se or infamous, without requiring the act to be knowingly clone, a criminal intent need not be proven, and contra, if the offense is malum in se, then the criminal intent must be proven. U. S. v. Leathers, 6 Sawy. 17; People v. Goodwin, 62 N. Y. 299; Comm. v. Wentworth, 118 Mass. 441; State v.- Hulsett, 41 N. J. L. 552; People v. Adanas, 16 Hun, 549. (3) It was error on part of the court to fail to instruct on the petit receiving of stolen goods, in view of the evidence on the part of the State of accused’s admissions. State v. Dashman, 153 Mo. 454. (4) Instruction number 5, given by the court, is subject to the criticism that it does not clearly and distinctly indicate that “the proven statements or declarations of the accused” referred to were “made out of court.” State v. Lewis, 248 Mo. 508; State v. Hudspeth, 150 Mo. 28; State v. Hollingworth, 156 Mo. 185.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
    (1) The intent with which stolen goods are received is not an element of the offense. State v. Cohen, 254 Mo. 437; State v. Rice, 245 Mo. 167; State v. Smith, 250 Mo. 350; State v. Sakowski, 191 Mo. 635; State-v. Richmond, 186 Mo. 171. (2) Defendant’s proven admissions were to the effect that out of the fruits of the larceny he received, at the time of the division of the spoils in his saloon, three twenty-dollar gold pieces from each of three of the thieves, thus constituting a single transaction, and therefore there was no petit receiving. Lorton v. State, 7 Mo. 57; State v. Morphin, 37 Mo. 373; State v. Maggard, 160 Mo. 472; State v. Mandich, 24 Nev. 341; People v. Johnson, 81 Mich. 576; State v. Congrove, 109 Iowa, 66; Furnace y. State, 153 Ind. 95; Carl v. State, 125 Ala. 104. (3) Instruction numbered 5, relating to proven statements made by defendant subsequent to tbe commission of tbe crime, was correct. State v. Duestrow, 137 Mo. 44; State v. Howell, 177 Mo. 188; State v. Smith, 250 Mo. 350. (4) The witness, George Nicholas, was one of the thieves who committed the larceny and therefore was not an accomplice of defendant in receiving the stolen goods. State v. Cohen, 254 Mo. 437; State v. Shapiro, 216 Mo. 379; State v. Richardson, 248 Mo. 569.
   BROWN, J.

Convicted of receiving stolen money and his punishment fixed at two years in the penitentiary, defendant appeals to this court.

On the evening of March 12, 1912, five persons, imbued with a larcenous purpose, assembled at a saloon kept by defendant in what is known as “Kerry Patch” in St. Louis City. Those five persons were: Ned Raftery, Podgy Burns, James Kennedy, Ben Shaw and George Nicholas, the latter a Gypsy boy between sixteen and seventeen years of age. The Gypsy boy informed his associates (Raftery et al.) that his uncle, Milasch Vlado, who lived only a block from the saloon, was possessed of a large amount of gold coin. A scheme was devised to steal Vlado’s money, and the five conspirators went to the home of Vlado and stole therefrom about $8000 in gold coin, one revolver and some other articles. There is some evidence that defendant knew that Raftery et al. were going to commit this larceny before the crime was committed, but that point is left a little indefinite. It is, however, conceded that as soon as the five thieves hereinbefore named had stolen Vlado’s gold they brought it to defendant’s saloon, poured it out upon the floor, where it was divided by each of the thieves grabbing it up as fast as possible.

According to the statements of George Nicholas, the Gypsy boy, who gave evidence for the State, when the stolen money was divided the defendant intimated that if they would give him part of the spoils probably he would secure bonds for their release in case they should be arrested. Thereupon each of the thieves gave defendant a handful of the stolen coin; the witness Nicholas giving him $150.

Defendant closed his saloon at one o’clock a. m. on the night the money was stolen, and was arrested in company with Ben Shaw, one of the thieves, about 5 -.30 next morning when he returned to his saloon.

The police officer who made the arrest testified that defendant admitted to him that three of the thieves each gave him twenty dollars of the stolen gold, making sixty dollars in the aggregate.

As a witness in his own behalf, defendant denied that he received any of the stolen money. He also introduced other evidence, which if true would have justified a verdict of acquittal. It is unnecessary to further discuss the evidence, as defendant does not contend that it was insufficient to support the verdict of the jury. His demand for reversal is based upon certain alleged errors in the instructions to the jury-by the trial court.

OPINION.

I. The first insistence of defendant’s learned counsel is that the instruction of the court did not require the jury to find that the defend-an^ received the stolen money with a felonious or unlawful intent. He cites numerous authorities, mostly from other States, which will be found in the notes of our official reporter prefixed to this opinion. It was undoubtedly the rule at common la*w that in cases of this character the burden rested upon the State to prove that the stolen property was received by the defendant with the felonious intention of depriving, or aiding in depriving, the true owner of his property. While this was the common law rule, we are not aware of any rule which prevents the Gfeneral Assembly of our State from restricting the operation of said common law. This is precisely what was done by the enactment of section 4554, Revised Statutes 1909, whereby a prima-facie case of feloniously receiving stolen goods is made out against the defendant by proof that he received .the goods “knowing the same to have been . . . stolen.” If defendant received the stolen money with an intention of returning it to the true owner, that was a matter of defense upon -which he would have had a right to introduce evidence, and upon the coming in of such evidence the issue of intent could have been dealt with by a proper instruction. There was no such evidence in this case, and the trial court did not err in omitting it from his instructions. Such is the rule of this court in State v. Rich, 245 Mo. 162; and in the recent case of State v. Cohen, decided at this term, and officially reported in 254 Mo. 437.

In the absence of countervailing evidence proof of the receiving of stolen property which the recipient knows has been stolen establishes all the criminal intent-or felonious purpose required by section 4554, supra.

II. A further insistence of defendant is that, there being evidence, through defendant’s admission to the policeman, that three of the thieves gave defendant twenty dollars each of the stolen gold at the time they brought it to his saloon and divided it, the act of defendant in receiving said six- . , ,, , ty dollars amounted to three separate crimes of receiving money in such small amounts as to constitute only misdemeanors. The evidence of the policeman tends to prove that the three coins which defendant admitted having received were part of the same gold which defendant had the most cogent reasons to know was stolen property. If the sixty dollars had been taken ont of the pile of stolen money while it was lying on the floor and given to defendant before the so-called “division” took place, then it conld not be claimed that there was more than one receiving. We do not think the situation was changed by the act of the thieves in making the so-called “division.” According to the evidence, whatever money was paid to defendant by the thieves was received by him in response to a joint promise to secure bonds for the thieves in case they should be arrested. That promise was apparently made to induce the thieves to turn loose some of Vlado’s money which they had in their possession. It was all one transaction, and it would amount to exalting technicalities almost to a point of madness to treat it as three separate crimes. The evidence in the case of State v. Dashman, 153 Mo. 454, tended to show that the defendant in that case was guilty of a different kind of crime from the one charged in the indictment committed at a time subsequent to the one for which he was on trial; consequently, that case is not authority for defendant’s contention here-

in. A further insistence of defendant is that the-trial court erred in giving instruction numbered 5 for the State, whereby the jury was told how to weigh statements proven by the State to have been made by the defendant after the crime was committed. We find that said instruction numbered 5 is a literal copy of the instruction given for plaintiff in the case of State v. Creeley, recently decided by this court and officially reported, 254 Mo. 382. In the Creeley case we discussed hnd reviewed instructions of this character from the case of Green v. State, 13 Mo. 276, down to date, and it would add nothing to the cause of jurisprudence to review what was said in affirming the judgment in that case. The giving of the instruction complained of did not constitute reversible error.

The case was ably defended, and the record contains no reversible error. We, therefore, affirm the judgment.

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


source: Caselaw Access Project

author: FARIS, J.

license: Public Domain

text:
    THE STATE v. JOHN SCOBEE, Appellant.
    Division Two,
    February 17, 1914.
    1. RECORD ENTRIES: Catchwords. The words, “Motion for new trial filed and overruled,” written opposite the style of the case and preceding the copy of the motion itself, on the record, are not a record entry of the filing of the motion, nor of the order overruling it, but were made for the convenience of the clerk in indexing and for reference; and such catchwords, or marginal notes, cannot eke out court orders.

      2. -: -: No Motion for New Trial. If the record proper does not show that a motion for a new trial was filed and overruled, the purported bill of exceptions cannot be considered on appeal.
    Appeal from Stone Circuit Court. — Ron. John T. Moore, Judge.
    Affirmed.

      J. B. Norman and G. W. Thornberry for appellant.

      John T. Banker, Attorney-General, and S. P. Rowell for the State.
    There is nothing in this case for the court to review but the record proper, (a) The abstract of the record proper contains no entry evidencing the filing of a motion for a new trial. It is true it appears from the bill of exceptions that such a motion was filed, but this court has uniformly held that a mere notation in the bill of exceptions, in the absence of an entry in the record proper, is insufficient to save matter of exception for consideration on appeal. State v. Kimmons, 124 Mo. App. 498; State v. George, 221 Mo. 521; Stark v. Zehnder, 204 Mo. 449; Dalton v. Register Co., 248 Mo. 150; Bower v. Daniel, 198 Mo. 317; Kuczma v. Drosskowski, 243 Mo. 57. (b) The fact that the motion for a new trial is copied in the record proper, as in this case, is not equivalent to a record entry showing the filing of such motion. The bill of exceptions alone should contain the motions and exceptions to the rulings, but the record proper should show that the motions were filed and the rulings of the court upon them. State v. Little, 228 Mo. 296; State v. Glasscock, 232 Mo. 291; State v. Brennon, 164 Mo. 507; State v. Tooker, 188 Mo. 444; Harding v. Becloll, 202 Mo. 631. (c) Marginal notations on the face of the record are insufficient to evidence the filing of a motion for a new trial. A record entry is made in pursuance of an order of the court; notations on the margin of the record are the voluntary act of the clerk. They constitute no part of the record entry, and are mere surplusage. They neither invalidate a proper record entry nor make valid an improper one. State-v. Johnson, 81 Mo. 60; Barbee v. Hereford, 48 Mo 323.
   FARIS, J.

Defendant, convicted in the circuit court of Stone county of felonious assault, has ap pealed. Against his averments of error arising out o". matters of pure exception occurring upon the trial, thi State, to foreclose examination of the bill of excep tions, urges that there is no order in the record show ing either that the motion for a new trial was eve'i filed, or that it was ever overruled.

Looking to the record we note chat under the style of the case the circuit clerk has set out a compíete copy of the motion for a new trial, bnt the record fails to show any order of the * ourt regarding- it. It is true, that in the margin, opposite the style of the case and preceding suck copy of the motion, the clerk fias ge£ 011t catch words, thus: “Motion for new trial filed and overruled,” evidently for his own convenience in indexing and for reference; but there is not one- word to indicate to us what the court did. A reference to other parts of this transcript shows conclusively that these are mere catchwords, even if we did not judicially notice the custom of circuit clerks in making up their records, as also the statutes requiring orders of the circuit court to be indexed. [Sec. 2685 and 3859, R. S. 1909.] Opposite the style of this case and preceding- the sentence appear the words, “Sentence and judgment,” as is likewise the case as to all other orders in this transcript. Catchwords, or marginal notes of the clerk, manifestly made for his own convenience, can not eke out court orders. [State v. Johnson, 81 Mo. 60; Barbee v. Hereford, 48 Mo. 323.] It follows that, since that which has been called the record proper to distinguish it from that part of the record made so by the timely and proper filing' of a bill of exceptions, fails to show either that the motion for a new trial was filed or that it was overruled, there is nothing before us except the record proper. [State v. George, 221 Mo. 519; Hill v. Butler County, 195 Mo. 511.]

We have carefully examined the record proper and find no error therein of moment sufficient to justify reversal and therefore consider -that the judgment should be affirmed. Let this be done.

Walker, J. J., and Brown,. J., concur.


author: ROY, C. PER CURIAM.

text:
    THE STATE v. JAMES SCHRUM, Appellant.
    Division Two,
    February 17, 1914.
    1. BILL OF EXCEPTIONS: Original: Order of Supreme Court: Death Penalty. Although the State briefed this appeal (that of a defendant sentenced to death) on the point that no bill of exceptions was properly filed, yet, the original bill of exceptions and- a certified copy of the record proper having been filed pursuant to an order of the Supreme Court, the court, on inspection of them, feels justified in examining, and does examine, the proceedings on the trial as shown by the bill of exceptions.
    2. HOMICIDE: Provocation: Cooling Time. Provocation given to defendant by the murdered man two days and a night before the killing was too remote to reduce the homicide from murder of the first degree to murder in the second degree.
    3. -: Evidence: Res Gestae: Objections. Where defendant came upon two men together and shot first one and then the other to death, testimony as to his shooting the second is admissible, as a part of the res gestae, upon his trial for murdering the first; but even if this were not so its introduction must be objected to and an exception saved before the Supreme Court can consider the matter on appeal.
    4. -: Instructions: Good Character. Where the court in a murder trial has given a proper instruction on good character, defendant cannot complain because his own instruction on that point was refused.
    5. MOTION FOR NEW TRIAL: Bill of Exceptions. An allegation in the motion for a new trial that the State’s counsel in his argument called the defendant a murderer and an assassin does not prove itself, and unless the bill of exceptions states'that such alleged misconduct occurred the Supreme Court must presume that it did not occur.
    6. -: Two Informations: Separate Trials: Objections: Jeopardy. Defendant came upon two men'together and killed' both of them. Two informations were filed against him— one for each killing. After he had been tried and convicted uponione of them, the second case was called during the same term and the jury sworn and impaneled, when defendant’s counsel objected to a trial at that time on the ground that two informations were pending against the defendant and he had already been tried on one of them, whereas both should' have been tried at once. The objection was overruled and the trial proceeded to defendant’s conviction and sentence to death. Held, that the objection cannot benefit the defendant on appeal. Counsel did not claim that defendant’s having been tried on one information would prejudice him on the second trial, and if they were of the opinion that he could not be fairly tried at that time, application for delay or a continuance should have been made before the jury was sworn and defendant put in jeopardy.

      Felix O. Pasión and F. M, Garter for appellant.

      John T. BarTcer, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for Mhe State.
    (1) A mass of papers purporting to be a bill of exceptions but not signed by the judge cannot be considered as such by the court on appeal. State v. Griffin, 249 Mo. 624; State v. Watts, 248 Mo. 494; State v. Brown, 216 Mo. 377; State v. Collins, 196 Mo. 87; State v. Brown, 164 Mo. 726; Reno v. Fitzjarrell, 163 Mo. 411; Roberts v. Jones, 148 Mo. 368. (2) As the record in this case does not show when the motions in arrest of judgment and for a new trial were filed, they cannot be considered on appeal. Young v. Downey, 150 Mo. 323; St. Louis v. Boyce, 130 Mo. 572; Pound v. Cassity, 91 Mo. App. 425-431; Bradbury v. Kerns, 115 Mo. App. 100; Stephens v. Railway, 157 Mo. App. 670; State v. Brown, 206 Mo. 506; Brown v. Daniel, 198 Mo. 317. (3) As the record proper does not affirmatively show that a motion for a new trial was filed, this court cannot consider the errors assigned even if they are preserved in a duly authenticated bill of exceptions. Klatz v. Pertect, 101 Mo. 216; Railroad v. Carlisle, 94 Mo. 166; Williams v. Railroad, 112 Mo. 485; Wolff v. Ward, 104 Mo. 145. (4) The time for filing motions for new trial and in arrest of judgment in criminal cases is the same as in civil cases. State v. Brown, 206 Mo. 501; State v. Fawcett, 212 Mo. 729. (5) Evidence as to when a motion for new trial and in arrest of judgment was filed should appear in the record proper and not in the hill of exceptions. Crasland v. Admire, 149 Mo. 650'; Lawson v. Mills, 150 Mo. 428; Storage Co. v. Glasner, 150 Mo. 427; Butler Co. v. Graddv, 152 Mo. 441; St. Charles ex rel. v. Deemer, 174 Mo. 122; ‘Williams v. Harris, 110 Mo. App. 538; State ex rel. v. Holland, 116 Mo. App. 347. (6) The information clearly embraces every essential allegation necessary to constitute the offense of murder of the first degree, and is in such form as has repeatedly met the approval of this court. State v. Olay, ‘201 Mo. 686; State v. Zorn, 202 Mo. 45; State v. Lang, 201 Mo. 673; State v. Barnett, 203 Mo. 652.
   ROY, C.

For the killing of Mont Hall on July 15, 1912, defendant was convicted of murder in the first degree and sentenced to death. He and Harvey Schrum about eight o’clock in the w morning of that day went to a lake in the outskirts of the village of Iron Mountain. Defendant had a repeating Winchester rifle. Harvey Schrum had a shot gun. They shot and killed Gent Gibson and Mont Hall.

On his trial in his direct examination he stated that he did not know his age; that the people who “raised” him said that he was thirty-eight years old; that he was raised by Samuel Schrum. That he was an orphan and never knew any other name until he was married, when they told him that his name was Laws. That he sometimes went by the name of Sink, which was his mother’s name before she was married. He had been married seventeen years.

Harvey Schrum is a son of the defendant’s wife, whose maiden name was- Thurman, and she testified “Harvey Schrum or Harvey Thurman is his name.” When she was asked Harvey’s age, an objection by defendant was sustained.

Five or six witnesses testified as to defendant’s good reputation and there was no evidence to the contrary. The reputations of Gibson and Plall for peace and quietude were to some extent impeached, and there was no effort on the part of the State to sustain them. Hall and Gibson lived about two hundred and fifty yards from the defendant. The defendant and Harvey Schrum worked at Graniteville several miles away.

Nellie Schrum, a daughter, sixteen years of age, was at home with the mother. The mother and daughter and several other witnesses in the neighborhood testified that on Tuesday morning before the killing, which was on Saturday, in the absence of the defendant, Hall and Gibson appeared at the home of the defendant and scurrilously abused the wife and daughter, making lascivious proposals to the wife, saying that they had a dollar for her and. for her to meet them in the wood, as she had done before, and made threats against the defendant. That evidence was not contradicted.

Mrs. Schrum testified that she then sent for her husband to come home, and that on Thursday morning between ten and eleven o ’clock, Gibson, with a gun on his shoulder, passed her house and looked and pointed at it and laughed like he was going to shoot in the house.

Thursday evening defendant and Harvey got home and were told by Mrs. Schrum what Hall and Gibson had done. Shortly after, the defendant and his daughter appeared at the home of Wm. Thurman, who lived in the immediate vicinity. He had a pistol with him. He and his daughter testified that his purpose in going there was to sell chances on a revolver that he was raffling off. Thurman and his wife testified that he said, “We are out hunting for these fighting people,” and Thurman also testified that soon after defendant left he heard sounds of trouble in the direction of Gibson’s house and heard a voice like defendant’s :say, “Come on, you G— d-s — mf-a-b-, I want nil of you, I want to see all of you,” followed by the report of a shotgun and then by what sounded like two pistol shots. The testimony of the defendant, bis wife and daughter and several other witnesses was to tbe effect that Gibson was tbe aggressor in that difficulty and that Gibson’s wife ran out of tbe bouse and caught bold of him. Tbe State did not put her or any other witness on tbe stand to give any other version of that difficulty. That night defendant left home and went to Graniteville and borrowed a Winchester repeating rifle, and on Friday forenoon procured shells for it, remaining in bis home during that afternoon.

Defendant and Harvey on Saturday morning went to the lake with their guns, in company with Mr. Lowe. Gibson, Hall, Mr. Forsbee and Hale were at the lake on the levee; Forsbee and Hale were fishing. As the ■defendant and Harvey approached the dam, Hale said, ‘ ‘ There comes the Sebrum boys and they have got their guns,” and Gibson said, “All right.” Gibson and Hall were sitting on the slope of the levee. Hale was called to breakfast and started to bis bouse about 120 feet away. Hale testified that be said to the defendant, “You’ve a fine looking gun there; there’s some fishing down at the falls that you can get pretty easy, ’ ’ and the defendant answered, “Yes, I’ve a couple of fish I am going to get on my string damn shortly.” Forsbee stated that at that time Gibson bad a gun which was lying on the levee about three feet from him. At that time there was a dog fight, which all parties assisted in quelling, and Gibson resumed bis seat on the levee slope, while Hall and Sebrum were standing on the top. Forsbee testified that after a few minutes Jim Sebrum said to Gibson, “ ‘Well, Gibson, we have come after you, we want to settle with you; we are tired of the shooting around,’ and ‘so much shooting,’ something about shooting, so Mr. Gibson said ‘all right,’ and made a move to get up, slowly. He drew Ms hand back kinda on some rocks and got about half straight,- and I looked back and Jim Scbrum drew bis gnn np and the gnn fired and Gibson felL Then Hall, be broke to rnn, and run down off of the levee into the bottom part below the levee, and made a straight, direct course for Hale’s bouse — there is a little gradual slope from there to Hale’s bouse, not much, though — and after be got fifty or sixty feet away, or a little better, one of the Scbrum men, I don’t know which one said this, but one of them said, ‘Pour it into him.’ Well, both of the guns fired, right quick together [indicating by slapping bands together], so-quick that I didn’t know which one fired first, but I found out later when the doctor came.” He also testified that Gibson made no effort to get bold of the gun at the time of the shooting.

Doctor English, who held the autopsy, testified that both Gibson and Hall were shot in the back with bullets and that Hall bad a large number of small shot in bis back. The defendant testified that be went totbe lake that morning for the purpose of fishing and that, as be passed Hale, Hall said, “Jim has got a twenty-two and tbe boy has a shotgun, but be won’t use it,” and that Gibson was sitting on tbe rock with a shotgun between bis knees. That Gibson then started to get up and throw bis gun on defendant just as defendant swung bis gun on Gibson, and that defendant then shot Gibson. That Hall then drew a revolver on defendant and that a shot was fired behind Hall, but by whom defendant could not say. That as tbe boy shot Hall, Hall turned bis back and be then shot him in tbe side just as Hall was turning from tbe defendant to tbe boy.

There were instructions for murder in tbe first degree and self-defense and all other instructions usually given. An instruction on murder in tbe second degree asked by defendant was refused. Tbe court properly instructed on good character, and refused an instruction on that subject asked by defendant. After the jury were sworn to try the case, and after a witness was sworn on the part of the State, counsel for defendant said: “Now, if your Honor please, we desire to object to this case being tried at this time, for the reasons tbat there were two informations pending against this same defendant and tbat they should have both been tried at one time, on the ground tbat be has already been tried on one of the informations.” Which objection was overruled.

Tbe Attorney-General briefed this case on tbe point tbat there was no bill of exceptions properly filed in tbe case. Pursuant to an order of this court tbe original bill of exceptions and a certified copy of tbe record proper have been filed. On an inspection of them we feel justified in examining tbe proceedings on tbe trial as shown by tbe bill of exceptions. There is no assignment of errors or brief in behalf of appellant. We find no error in tbe admission or rejection of evidence.

I. Defendant’s instructions on murder in tbe second degree was properly refused. Tbe provocations given to defendant on Thursday night and prior thereto were too remote to authorize tbe jury ^ fnc[ that the killing was reduced to murder in tbe second degree by reason of it. Two nights and a day bad intervened between the provocation and tbe killing. Tbat was, under all the authorities, more than sufficient cooling time. In State v. Bulling, 105 Mo. l. c. 222, it was said, “This passion, thus produced, is a statutory concession to tbe frailty of human nature; but before it can operate to mitigate a homicide from murder of tbe first degree to murder of tbe second degree, tbe party acting under its influence must act suddenly and before be has time to reflect.” In that case only a half hour bad intervened. Bishop’s New Criminal Law, vol. 2, says tbat an hour has been held sufficient cooling time, and that if a night has intervened it is sufficient. There was no provocation at the time of the killing. It was either murder in the first degree or justifiable homicide on the ground of self-defense. The court instructed on both those questions.

II. The point is made in the motion for a new trial that the court should not have admitted evidence as to the killing of Gibson. That evidence went in without objection so far as we can discover, and, moreover, such killing was a part of the res gestae and properly admitted.

III. The refusal of defendant’s instruction on good character was not error, for the reason that the court gave a proper instruction on that subject.

IY. Appellant contends in his motion for a new trial that the State’s counsel in his argument called defendant a murderer and an assassin. Nothing is said about such alleged misconduct except in that motion. An allegation in such motion does not prove itself. The bill should have stated that such misconduct did occur, and in the absence of such statement we must presume it did not occur.

Y. Complaint is made that defendant was tried in this case at the same term and after he had been convicted of killing Gibson. The cause was set down for trial on a certain day. The jurors were impaneled and sworn and the State proceeded to introduce its evidence before any objection was made to proceeding with the trial. The only objection then made was that the two cases should have been tried at the same time, and that the other case had already been tried. It was not then claimed that the fact that defendant had been tried on one information would in any way prejudice him on the second trial. The defendant was in jeopardy after the jury were sworn, and the failure to try him then would have resulted in his discharge without trial. If counsel were of the opinion that the defendant could not be fairly tried at that time, application for delay or a continuance should have been made before the jury were sworn.

We affirm the judgment and direct that the sentence pronounced by the trial court be executed.

Williams, C., concurs.

PER CURIAM.

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

All the judges concur.


author: BROWN, J.

text:
    THE STATE v. ALFRED JOHNSON, Appellant.
    Division One,
    February 17, 1914.
    1. INFORMATION: Assault: With Knife: Three Defendants. An information charging that defendant and two other persons assaulted, stahbed and cut a fourth with a knife, which they “then and there in their hands had and held,” is not insufficient in that it charges a physical impossibility. It gave the defendant all the notice which the law requires of the cha,rge upon which he would be tried.
    2. INSTRUCTIONS: Not Set Out in Transcript. Instructions which are not set out in the transcript filed in the appellate court cannot be reviewed on appeal. Nor is that rule altered by the fact that the bill of exceptions calls for the instructions, unless they are filed by leave of court or added to the bill by nunc pro tunc order or the transcript amended in pursuance to some order or leave of court.
    3. -: -: Amendment Without Leave. A record filed in the appellate court cannot be amended by the mere certificate of the clerk acting under no order of court. An omission of instructions from the transcript cannot be supplied by the filing in the appellate court by the clerk of the trial court, without permission, of instructions which he certifies were found deposited among the original papers of the case.

      4. TESTIMONY: Improperly Admitted: No Assignment in Motion. Any error in the admission of testimony, even though probably improperly admitted in rebuttal, cannot be considered on appeal, if the motion for a new trial does not call the court’s attention to the admission of improper evidence.
    5. ASSAULT: Accessory: Inciting Remark: Substantial Evidence. Four white boys were looking through a window of a negro church at a festival going on inside, at about midnight of a starlight night, when a bottle was thrown and struck and broke the window above their heads. The negroes demanded that they pay for the window, and upon their refusal, they were told to run, and three of them did, but the prosecuting witness did not, but walked to his horse, and as he was about to mount a negro named Dudley struck him in the back with a knife, inflicting a wound seventeen inches long, and the wounded man testified that just before the assault the defendant said to Dudley, “Rip him,” but admitted he had only a slight acquaintance with defendant, and was not familiar with his voice; but defendant, who was one of seven negroes who stood by and was only five feet away when the assault was made, testified that after Dudley struck the blow he could see the wounded man’s coat and shirt were “split open.” Held, that it is, therefore, apparent that it was at least possible for the wounded man to recognize defendant in the starlight and with reasonable accuracy determine that it was he who told Dudley to use the knife, and a verdict of guilty of inciting the assault is not disturbed.
    Appeal from Callaway Circuit Court. — Hon. David H. Harris, Judge.
    Affirmed.

      N. D. Thurmond for appellant.
    (1) It is evident by the wording of tbe information that the prosecuting attorney meant to charge only one of the defendants with the actual cutting. There was only one cut and it was physically impossible for one strike to be made by all three of the defendants. All three could not have held the knife in “their” hands. The charge being a physical impossibility as to all could not be and is not a specific charge as to any one of the defendants. This point is self-evident. Therefore the information is bad and the motion in arrest should have been sustained. (2) The evidence is not sufficient to convict the defendant.

      John T. Barker, Attorney-General, and S. P. ■Howell for the State.
    (1) The allegation in the information that the assault was committed with a knife, “which they then and there in their hands had and held,” might have been stated with greater accuracy, yet by virtue of the Statute of Jeofails does not render the information fatally defective. State v. Grimes, 29 Mo. App. 470; State v. Dalton, 27 Mo. 13; State v. Shelton, 223 Mo. 128. (2) The first two and the fifth assignments of error in defendant’s motion for a new trial allege that the evidence is insufficient to sustain the verdict. Under our statute the common law distinctions between, principals and accessories before the fact have been abolished. All are made principals and may be indicted, tried, convicted and punished as such. Therefore, a person who feloniously and on purpose is present and aids and abets in the stabbing of another is equally guilty as the person who actually does the stabbing. Sec. 4898, R. S. 1909; State v. Melvin, 166 Mo. 565; State v. Brown, 104 Mo. 365'; State v. Anderson, 89 Mo. 312; State v. Herman, 117 Mo. 629; State v. Shuckman, 133 Mo. 111. There need not be actual participation in the commission of the criminal act. If one, by his presence at the scene of crime, lends encouragement to its perpetration and is in a position and willing to render assistance if necessary to the active participant, he is in contemplation of law equally guilty with the one who physically consummates the criminal act. State v. Orrick, 106 Mo. 120; State v. Kennedy, 177 Mo. 131; State v. Nelson, 98 Mo. 414; State v. Yalle, 164 Mo. 551; 1 Wharton’s Grim. Law, sec. 211a. The common design or purpose to commit the criminal act need not be shown by direct and positive evidence. It may be deduced from attending circumstances connected with the transaction in question. State v. Walker, 98 Mo. 104; State v. Sykes, 191 Mo. 78; State v. Fields, 234 Mo. 623; State v. Spaugh, 200 Mo. 591. In view of the principles announced by the above authorities, and the testimony as detailed in our statement of the case, the evidence was amply sufficient to sustain the verdict. It was the province of the jury to judge of the credibility of the witnesses, the weight and sufficiency of the evidence. The case was submitted to the jury, and having considered 'the evidence under the instructions of the court, the jury found the defendant guilty as charged. There being substantial evidence to support the verdict, this court will not interfere. State v. Bostwick, 245 Mo. 483; State v. Sassaman, 214 Mo. 738; State v. Fetrick, 199 Mo. 104; State v. White; 251 Mo. 178; State v. Concelia, 250 Mo. 424.
   BROWN, J.

Upon a charge of assaulting with intent to kill one Paris Craighead, defendant was convicted in the circuit court of Callaway county and appeals from a judgment fixing his punishment at three years in the penitentiary.

The evidence upon which this conviction rests runs as follows:

Craighead and three other white boys assembled in Callaway county on the night of August 18, 1912, to attend a dance. The dance did not materialize, so the four boys decided to attend a festival, held on the same night at a negro church a few miles distant. They arrived at the church about midnight, and, after tying their horses, sought to purchase some soda pop and fish at a stand outside the church. They could not obtain the soda pop and fish, the supply being exhausted.

The white boys then walked to an open window of the church and were watching the negroes inside, some of whom were singing. At this juncture a bottle was thrown by some unknown person on the outside and struck the church window above where the white boys were standing, breaking the bottle and also the glass in the window.

Several persons came out of the church and demanded that the white boys pay for the broken window. This they declined to do, claiming they had not broken it. Some one or more of the negroes then told the white boys to leave, which they promptly did. There is some conflict in the evidence as to who told the white boys to leave; two witnesses testified that defendant gave the order.

Defendant was standing on the outside of the church when the bottle was thrown. Two of the white boys stated that the negroes told them to run, and they did run to their horses and prepared to .go home.

Paris Craighead did not run, but walked to his horse. According to his testimony about seven of the negroes followed him, and, as he was preparing to mount his horse, a negro by the name of Wheeler Dudley struck him in the back with a knife, inflicting a wound extending from his shoulder to his belt — about seventeen inches long. Craighead stated that just before this assault was made defendant said to Dudley, “Rip him.”

Defendant, testifying in his own behalf, corroborated the statements of Craighead at all points except in regard to the inciting remark, “Rip him,” alleged to have been made by defendant to Dudley just before the crime was committed. Defendant stated that he and Pete Holland were standing about five feet from defendant when Wheeler Dudley passed between them and cut Craighead with a knife. Defendant further testified that it was a starlight night and that after the assault took place he could see that Craighead’s coat and shirt were “split open,” and defendant thought he was wounded. Craighead was in fact very seriously wounded, but was able to mount Ms horse and ride away. Defendant denied that he said “rip him” to Dudley or encouraged said Dudley to make the assault — that he did not want to harm Craighead in any way. That he did not hear anybody say “rip him,” but heard Dudley say, “I split his coat.” Asked why he followed the wMte boys, defendant said: “I just went out there to see that they left.”

Pete Holland’s evidence was about the same as defendant’s. He testified that he did not hear anyone say “rip Mm” — but that after the assault Dudley stated he had “split the white boy’s coat.”

One Julia Dudley testified in rebuttal that the day following the assault defendant called at her home, and upon loaning her his knife to pare an apple, he (defendant) remarked: “That is the knife with which I cut the white boy’s coat.” Defendant denied making this remark, as did one other witness who was present when it is alleged to have been made.

For reversal defendant assigns the alleged invalidity of the information; the giving of improper instructions; the admission of improper evidence; and insufficiency of evidence to support the verdict.

OPINION.

I. The only attack upon the information is that it alleges defendant and two other persons assaulted, stabbed and cut Paris Craighead with a knife, which they “then and there in their hands had and held, thus charging a physical impossibility. TMs alleged error has been heretofore urged against, other informations, and has never been regarded as a substantial defect. [State v. Grimes, 29 Mo. App. 470; State v. Dalton, 27 Mo. 13; State v. Shelton, 223 Mo. 118, l. c. 128.] Upon the authority of the above cited cases we hold that the information in this case is sufficient. It certainly gave the defendant all the notice which the law requires of the charge upon which he would be tried.

II. Concerning the alleged errors in the instructions given for the State or by the court of its own motion, it is only necessary to say they . . , . .. . , „ ,, cannot be reviewed m this appeal, for the reason that they do not appear in the transcript filed in this court.

The bill of exceptions contains a call for the instructions given on behalf of the State, but from some cause those instructions were not copied into the transcript. No suggestion of diminution of record or attempt to amend the bill of exceptions by an order of court nunc pro tunc has been made; but since the submission of the ease to this court, the clerk of the circuit court of Callaway county has filed here, without permission, some copies of instructions which he certifies were found deposited among the original papers in this cause. The clerk further certifies that said instructions, of which he has thus furnished us copies, are not indorsed as either given or refused by the trial court. It has long been the rule that a record filed in this court cannot be amended by the mere certificates of the clerk when not acting under the order of any court. [Smith v. Railroad, 91 Mo. 58, l. c. 61; Althoff v. Transit Co., 204 Mo. 166.]

III. The evidence of Julia Dudley was probably not admissible as rebuttal testimony, but as defendant had neglected to call the trial court’s attention to the admission of improper evidence in his motion for new trial, the error (if error) cannot be reviewed here. [State v. Foley, 247 Mo. 607, l. c. 627, and cases there cited.]

• IV. This leaves for our determination the contention that the verdict and judgment are not supported by substantial evidence. the only direct evidence of defendant’s guilt is tbat he encouraged the commission of the crime by saying to Wheeler Dudley, “Rip him,” just before the latter made the assault. Defendant’s counsel does not deny tbat bis client is guilty if be told Dudley to strike Craighead with a knife. His insistence is tbat, all the facts considered, there is not substantial evidence tbat defendant did or said anything to provoke or encourage the commission of the crime by Dudley.

As Craighead, tbe prosecuting witness upon whose evidence the conviction is based, admitted tbat be bad only a slight acquaintance with defendant, and was not familiar with bis voice, tbe difficulty arises in finding tbat said prosecuting witness, by only such light as tbe stars afforded on tbat summer night, could be certain as to which one of tbe seven negroes then present made tbe inciting remark, “Rip him.”

Tbe defendant, who was only five feet from tbe prosecuting witness, testified tbat after Dudley struck the blow, be (defendant) could see tbat Craighead’s coat and shirt were “split open;” so tbat, defendant being able to observe by tbe starlight tbat Craighead’s coat and shirt were cut by Dudley’s knife, it is apparent tbat it was at least possible for Craighead to recognize defendant by sight, and with reasonable accuracy determine tbat it was be who told Dudley to use tbe knife.

After a careful consideration of all tbe facts we are convinced tbat Craighead’s ability to recognize defendant as tbe man who incited Dudley to make tbe assault was a question for tbe jury, and we decline to disturb their decision.

Tbe judgment is therefore affirmed.

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


text:
    THE STATE v. JOHN NIBARGER, Appellant.
    Division Two,
    February 17, 1914.
    1. DEFILING FEMALE: Knowledge of Defendant’s Wife. Although the testimony of the prosecutrix to the effect that her sister who was defendant’s wife was fully advised of the illicit relations between her and defendant and made no objection seems almost incredible, yet the wife’s knowledge was merely a single fact in the train of corroborative facts, and was not so far a material issue as to call for the application of the maxim, frnlsus in uno, fals'us in omnibus; and if the fact of intercourse does not rest upon the testimony of prosecutrix alone, but is corroborated by other things, including defendant’s extrajudicial statements, a demurrer to the evidence should not be sustained.
    2. -: Confidential Relation. Sec. 4479, ÍL S. 1909, includes not only guardians, but all others standing in a confidential relation towards the female, and where defendant, by agreement with prosecutrix’s father, her mother being dead, took her, his wife’s sister, to his house when she was fourteen years old to “take care of her and treat her as one of his •own family” and she remained with him as a member of his household, assisting her sister in the housework and in the care of the children, during which time he deflowered her, the confidential relation existed.
    3. -: Unchaste Character. The unchaste character of the prosecutrix, in the prosecution of a man for defiling a female under the age of eighteen years, while in his confidential care, is no defense; although her had character may he shown for the purpose of affecting her credibility as a witness.
    4. INCOMPETENT TESTIMONY: No Objection. Error in admitting incompetent evidence to which no objection is made and no exception saved, cannot be reviewed on appeal — even though it be the unwarranted cross-examination of defendant’s wife, in disregard of the statute which forbids her cross-examination from being extended beyond the bounds of her examination in chief.

      3. CONTINUANCE: No Exception. The failure of defendant to save an exception to the action of the court in overruling his application for a continuance precludes any review on appeal of the court’s ruling.

      6. INSTRUCTION: Clerical Error: Omission of Word “Been” Before “Proved.” The omission of the word “been” before the word “proved” in an instruction for the State, beginning, “The court instructs the jury that if verbal statements of the defendant have proved in this case,” was clearly a clerical error, so patent that any twelve men sufficiently intelligent to qualify as jurors would automatically, on reading the instruction, supply the word, and therefore did not mislead them.
    7.. -: Extrajudicial Statements by Defendant. An instruction telling the jury that “if any verbal statements of the defendant have been proved in this case, you may take them into consideration with all the other facts proved. What the proof may show you, if anything, that the defendant has said against himself, is presumed to be true, because against himself,” etc., is not error, but approaches very nearly to a comment upon the evidence, and it is not necessary to give it at all, but if given it should require the extrajudicial statements to be considered altogether, since defendant is and ought to be entitled to the benefit of anything he may have said in. favor of himself; and if the instruction is given, it should be given in the form found in State v. Howell, 117 Mo. I.' c. 323.
    Appeal from Livingston Circuit Court. — Ron. Arch B. Davis, Judge.
    Affirmed.

      L. A. Martin for appellant.
    . :John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General,' for the State.
    At the April term, 19ÍS, of the court, appellant applied for a continuance on account of the absence of material witnesses. The court overruled the application because two of the alleged absent witnesses, Jack Hodges and Floyd Baker, were present in court, and because the testimony of Joe Waltz and Cecelia Campbell, the other alleged absent witnesses, was merely cumulative. Regardless of whether the court erred in overruling the application for a continuance, that point cannot be considered on appeal because the bill of exceptions on file does not show that appellant saved an exception to the action of the court. State v. Murphy, 117 Mo. 14; State v. Stevenson, 93 Mo. 553; State v. Finley, 193 Mo. 202; State v. Pen-land, 199 Mo. 152. Instruction 5 told the jury that it was immaterial that prosecutrix had been carnally known by any man or men other than defendant, provided defendant had carnally known her while under his care, custody or employment. This instruction properly declared the law. State v. Strattman, 100 Mo. 548; State v. Eogers, 108 Mo. 204; State v. Sibley, 131 Mo. 532; State v. Summar, 143 Mo. 231. Instruction 6 related to the question of the care and custody of prosecutrix by defendant, and was a correct declaration of the law applicable to the facts in the case. State v. Young, 99 Mo. 284; State v. Strattman, 100 Mo. 540; State v. Sldllman, 228 Mo. 434; State v. Terry, 106 Mo. 209; State v. Hesterly, 182 Mo. 26; State v. Cakes, 202 Mo. 86.
   FARIS, J.

Defendant having been convicted in the Livingston Circuit Court of defiling one Nora Waltz, a female under the age of eighteen years, as denounced in section 4479, Eevised Statutes 1909, and having had assessed against him as punishment therefor imprisonment in the penitentiary for a term of two. years, has appealed.

The substantive facts, since no very serious attack is made upon the sufficiency of the evidence, are of no particular interest in this case; they add not at all to legal history, and therefore a recital in detail of their sordid and disgusting features would but cater to morbid taste without illuminating the points of law involved. Suffice it to say that the facts tend to show that defendant, a man aged about thirty-three years, by occupation a common laborer, alternating in his employment at manual labor upon farms and at sawmills, was married to a sister of Nora Waltz, the prosecuting witness. The proof shows that the said Nora was born on the 29th day of October, 1897, and that the first act of intercourse occurred in the latter part of November, 1911, at a time manifestly, therefore, when she was under the age of eighteen years. The mother of said Nora was dead; her father had remarried, but had separated from the stepmother of prosecutrix; he Seems to have been very poor and to have augmented the galling ills of his poverty by a sort of general shiftlessness. Touching the necessary testimony under the statute to prove that the prosecutrix was confided to the care of defendant, the proof is ample. The testimony of one Stella Waltz, a witness for the State, and a sister of prosecutrix, was to the effect that defendant asked the father of prosecutrix to let the latter go to live with defendant, and that prosecutrix’s father thereupon said, “ ‘Well, we want to get her a home some place,’ and Mr. Nibarger said he would take her and take care of her and treat her as one of his own family.” In substance these same facts were testified to by two or three other witnesses in the case. Following this conversation between the father of prosecutrix and defendant, the girl Nora went, sometime in the early fall of 1911, to live with the defendant and remained with him as a member of his household, assisting her sister, the wife of the defendant, in the house work and in the care of defendant’s three children, until sometime in December, 1912, when it became apparent that prosecutrix was pregnant, and her father came and took her away, and procured defendant’s arrest. Following the first act of carnal access in November, 1911, the defendant continued at intervals, so prosecutrix says, to have intercourse with her until she left his house in December, 1912. The proof also shows that he communicated to his brother, Ed Nibarger, at least the fact of prosecutrix’ easy virtue and that as a result Ed Nibarger also had intercourse with prosecutrix. The prosecutrix herself, when a witness upon the stand, admitted two acts of intercourse with Ed Nibarger between the date of her becoming an inmate of defendant’s house and the date of her leaving there.

Some effort was made by defendant to show the bad character of prosecutrix for chastity. We need not go into the details of this attempted proof for the reason that the acts sought to be proved did not go as far toward showing unchastity as the frank admission of prosecutrix herself. The acts sought to be proven by defendant related to alleged' indiscretions with the said Ed Nibarger; but prosecutrix herself having ingenuously admitted intercourse with him it was therefore all before the jury. Besides, the alleged' beginning of her unchastity was subsequent to the date at which she avers she was deflowered by defendant, f

In the course of the trial, one Mark White, who was the sheriff of Livingston county at the time of defendant’s arrest, was called by the State to prove certain extrajudicial statements of defendant in-the' nature of confessions, but falling short of formal confessions. This witness testified that defendant told him that he had had intercourse with prosecutrix about April or May, 1912, and further said to him that his brother Ed Nibarger had also had intercourse with her. Bottomed upon this, statement, which was the only extrajudicial statement of defendant shown in the case, the court gave this instruction:

“The court instructs the jury that if verbal statements of the defendant have proved [sic] in tifias case, you may take them into consideration with all the other facts and circumstances proved. What the proof may show you, if anything, that the defendant had said against himself, is presumed to be true, because against himself, but anything you may believe from the evidence the defendant said in his own behalf, you are not obliged to believe, but you may treat the same as true or false, just as you believe it true or false, when considered with a view to all the facts and circumstances in the case.”

Should further facts be required in order to elucidate the subjoined discussion of the legal points in the below opinion, we will set them out there.

OPINION.

We have not been furnished any brief of any sort by defendant’s learned counsel in this case; a fact attributable, it may be, to the poverty of defendant, since he was permitted by the court below to prosecute his appeal in forma pauperis. Learned counsel for defendant argued this case before us ore tenus and expressed the hope that he would be able to furnish us with a brief, but none has been filed, and as in duty bound, we have ourselves examined with much care the record herein as well as the assignment of errors contained in the motion for a new trial.

I. We find that complaint is there made that the evidence in the case is insufficient and therefore that his demurrer to the evidence produced by the State should have been sustained. With this argument we are utterly unable to agree. The evidence is overwhelming on every point reQuired by law to be proven. If the jury believed this evidence, and the weight of it was for them and not for us, but one result was possible; that result, the conviction of defendant, the jury reached. We are not saying that there are not to be drawn from some of the facts and circumstances in this case suspicious inferences. Some of the facts testified to by the prosecutrix are almost incredible, in that they are opposed to the usual and ordinary human experience. For example, prosecutrix swore that her sister was at all times fully advised of the relations existing between prosecutrix and the defendant, who was the husband of said sister, and that this wife and sister did not raise hand or voice to put an end to these meretricious actions. Unquestionably this is not the usual behavior of a wife or a sister; but even if this statement touching the wife’s knowledge be false, and the jury were the judges of it, there is yet enough in the record to amply sustain this conviction. The more so, since the whole case as to the intercourse charged and necessary to be proven to sustain a conviction, does not rest upon the testimony of prosecutrix alone. Besides, the wife’s knowledge, or lack of knowledge, was merely a single fact in a train of corroborative facts, and not so far a material issue as to call for the application of the maxim, falsus in uno, falsus in omnibus. There is ample corroboration in proof of sexual access arising from the extrajudicial statements of defendant himself.

Section 4479 of our statutes includes not only guardians, but all others standing in a confidential relation toward the female defiled. This is s0 weh settled that we need only refer to the cases wherein the point is discussed. [State v. Oakes, 202 Mo. 86; State v. Hesterly, 182 Mo. 16; State v. Summar, 143 Mo. 220; State v. Hill, 134 Mo. 663; State v. Sibley, 131 Mo. 519.] Of course we do not desire to be understood by the use of the words “confidential relation” to go further than the adjudicated cases have gone in this state; at least until a case shall appear making the point a live one. We do say, however, that upon the facts here defendant was brought by the proof within the purview of the-crime denounced by the above section.

Neither is the unchaste character of the female any defense; if so it be that the point made by defendant includes this question. This also has been settled against defendant’s contention. [State v. Summar, supra; State v. Sibley, supra; State v. Strattman, 100 Mo. 540; State v. McClain, 137 Mo. 307.] This distinction which leaves out of consideration the prior chastity and prior good repute as to virtue of the prosecuting witness arose no doubt from the fact that the statute in question uses the word “defile” in defining this offense rather than the word “seduce,” which latter word has been said -to mean “to lead astray from the path of virtue.” We are not saying that the bad character of the prosecuting witness in a case of this sort may not be shown for the purpose of affecting her credibility as a witness. This may be done. [State v. Terry, 106 Mo. 209; State v. Young, 99 Mo. 284; State v. Summar, supra; State v. Sibley, supra.] The rulé in the matter of reputation for chastity of prosecut’rii is succinctly stated in State v. Sibley, 131 Mo. l. c. 532, thus:

“Evidence of acts of" illicit intercourse ’ by Luid Hawkins with persons other than defendant was inadmissible. ' Specific acts of unchastity were not permissible for the purpose of affecting her credibility or for impeaching her, and whatever acts of lewdness she may have been guilty of with others, if any, were no justification or excuse for defendant in having carnal connection with her, if in fact he did have, while she was under his care, control 'and protection. As was said in State v. Strattman, 100 Mo. 540, ‘unchaste tó all the world beside, she must be pure to him.’ ”

We must therefore rule this point against defen'dr ant.

II. Complaint is also urged in the motion for á •new trial that the court admitted irrelevant and incompetent testimony on the part of the State. We have carefully combed the record to find if this ^e true. The only instances we find of such admission of incompetent testimony occurred in permitting the witness Stella Waltz to testify touching statements she said were made.to her by defendant’s wife indicating a knowledge of defendant’s carnal intercourse with prosecutrix, and the unwarranted cross-examination of the wife on the same matter. This was utterly and absolutely inadmissible on account of the plain statutory provision wbicb forbids the cross-examination of the wife of a defendant, who testifies for him, from being extended beyond the bounds of her examination in chief. [Sec. 5242, R. S. 1909.] However, since neither an objection was made by defendant nor any exceptions taken, nor any reference made anywhere in anywise by defendant to the action of the court in this behalf, we cannot review it.

III. Defendant filed prior to the trial an application for a continuance, which was overruled by the court. He urges this as error, but the same difficulty exists here as we find touching the point last above discussed. Neither the application for a continuance nor any exceptions of the defendant to the court’s action thereon is shown in the bill of exceptions. "We do not think that under the facts the action of the court was erroneous in overruling this application for a continuance. "We gather from the whole record and from all of the facts and circumstances that his action in that behalf was perhaps proper and correct. But be this as it may be, the failure of the defendant to save his exceptions to the action of the court in overruling his application for a continuance precludes our ruling upon the point. On this we need not burden the books with citations.

IV. Alleged errors are predicated upon the act of the court nisi in refusing to give certain instructions asked, as it is averred, by defendant. The recor¿ gPo^rg that the court gave all of the instructions which defendant requested him to give. Defendant, so far as the record shows, asked the giving of but four instructions. All these the court gave. Most of them were uselessly and unnecessarily given, for that he had alreády sua sponte instructed the jury fully on all of the points embraced in the four instructions asked by and given for defendant. If other instructions were asked by defendant the record does not show it; none of them is preserved in the record before us.

To the further point made by defendant that the court did not instruct on all of the law applicable to the ease, we may say that we have carefully gone over the instruction given by the court, and so far as we are able to see, in the absence of specific light thrown upon them by further and more definite suggestions from defendant, we are unable to see wherein they do not cover every point that ought to have been covered and every point required by law to be covered, in such a case as this. With the exception of instruction number 7, which we have set out in the statement, and touching which we shall make some further observations below, so far as we are able to see, all the instructions given by the court were well enough, and we must disallow all points made by defendant upon these instructions.

The peculiar form of instruction number 7, quoted in full in the statement herein, would seem to require some further and more detailed discussion. Manifestly the first sentence thereof contains a clerical error, in that the word “been” is omitted between the words “have” and “proved.” We set this instruction out verbatim so that this error, as well as the obvious manner in which the same should be corrected, may be clearly seen. So far as this mistake, which is patent, and which is clearly that of the scrivener, is concerned, w.e do not think the jury could have been misled by it, or that it is of sufficient moment to cause a reversal of this case. We can not believe that any twelve men, with sufficient intelligence to qualify as jurors, can read this instruction without seeing instantly that an omission of the word “been” has occurred therein and without automatically supplying it as they read. We think then we are warranted in disregarding so patent a clerical mistake and in treating the instruction as if it read in the first lines thereof: “The court instructs the jury that if verbal statements of the defendant have been proved in this case you may take them into consideration with all the other facts and circumstances proved.” Having thus in a sense reformed this instruction along what we deem to be intelligent and common sense lines, we may say that while it is not in our view in the best and most approved form, it has yet been held good many times. We have found in our own Missouri cases that exact copies of this instruction have been under fire and been sustained as sufficient. In State v. Tobie, 141 Mo. l. c. 561, an exact copy of this instruction was given. This court held it a correct and proper instruction. Other cases have discussed this identical instruction and held it good (State v. Darrah, 152 Mo. l. c. 541); and even in the fairly ancient case of State v. Sattley, 131 Mo. l. c. 490, this court, in referring to an instruction apparently ■precisely like the one here under discussion, said': “Instruction numbered 7 has been approved so often in this State that we must decline to enter upon its defense. [State v. Carlisle, 57 Mo. 102; State v. Brown, 104 Mo. 365; State v. Wisdom, 119 Mo. 539.]”

It is true that in the Sattley case it does not clearly appear that the instruction there attacked and there by the court held good, was similar to the one here under discussion in the instant case; but by a reference to the case of State v. Darrah, 152 Mo. l. c. 541, it will be seen that the instructions in the Sattley case, the Darrah case and the Tobie case, all supra, and the instant case, were copies of each other. The fact remains however that in the last analysis an instruction of this sort approaches very nearly to a comment upon the evidence, and while such a comment has never, so far as we are able to find, been held to be reversible error, or even error calling for rebuke, we are disposed to think, if an instruction of this sort is to •be given, it should, in fairness to the defendant, require that any extrajudicial statements made by defendant after the commission of the offense for which he is upon trial, should be considered by the jury altogether, since defendant is and ought to be entitled •to the benefit of anything he may have said in such statements in favor of himself. It is the experience of men that casual admissions of parties to an action, or extrajudicial statements falling short of a formal written confession of a defendant and made at varying periods, prior to the trial, are so likely to be misunderstood by the hearer, or to be restated without regard to their setting, and without regard to qualifying statements or circumstances, and without regard to their context, that the well-known frailty of human memory renders them dangerous and in many cases useless.

The fullest and fairest instruction that we have been able to find on this point, if the jury are to be instructed at all thereon, is to be found, among other places, in the case of State v. Howell, 117 Mo. l. c. 323. The feature of requiring in fairness to the defendant that such statements shall be considered altogether,- is to be found in practically all of the instructions which have been approved by this court upon this point. [State v. Turner, 110 Mo. 196; State v. Cushenberry, 157 Mo. l. c. 188; State v. McKenzie, 144 Mo. l. c. 44; State v. Hays, 23 Mo. l. c. 319; State v. Peak, 85 Mo. 190; State v. Duestrow, 137 Mo. 44; State v. Wilson, 223 Mo. l. c. 192.] On the authority, however, of the many well considered cases holding this identical instruction good, and which cases we see no reason to overrule, we must disallow this point to defendant, trusting, however, that the courts nisi may hereafter see fit, when they feel in duty bound to instruct on this point, to follow substantially the form set out in the case of State v. Howell, supra.

Having therefore with great care gone over the entire record, and finding no error sufficient to justify us in reversing this case, we are constrained to say that defendant has been accorded a fair and painstaking trial by the learned judge nisi. Particularly was the trial court lenient in permitting defendant’s counsel to offer in many cases evidence which might properly have been excluded. It results that the judgment should be affirmed. It is so ordered.

Walker, P. J., and Brown, J., concur.


text:
    THE STATE ex rel. WELLWORTH REALTY COMPANY and BERTHOLD INVESTMENT COMPANY v. EDMOND KOELN, Collector, Appellant.
    Division Two,
    February 17, 1914.
    TAXATION: Paying on Part of Lot or Parcel: Sec. 11459, R. S., 1909. Sec. 11459, R. S. 1'909, providing that “the collector shall receive taxes on part of any lot, piece or parcel of land' charged with taxes,” etc., means that a person can furnish’ the collector a particular specification of any part of a lot,' piece or parcel of land appearing on the tax booh, pay the. taxes on such part, get his receipt and have the entry made, and its meaning is not such as to restrict its application to cases in which the part on which payment is desired to be-made is assessed separately from the remainder of the “lot,' piece or parcel.”
    Appeal from St. Louis City Circuit Court. — Hon. Moses N. Sale, Judge.
    Affirmed.

      Edward W. Foristel and Frank H. Haskins for appellant.
    (1) Where a lot is assessed as an entirety, the collector can not be compelled to receive taxes on a part of that lot. (2) Even if the statute could be so construed, it does not require him to mark that part paid; to release that part from the lien of the taxes, or to give a receipt specifying value of the property, etc. Constitution, art. 10, sec. 4; R. S. 1909, sec. 11459.

      William F. Woerner for respondents.
    The statute is intended to afford the remedy in exactly such a case as is here presented. Prior to its enactment the only statute upon the books requiring the collector to give a receipt for taxes was as follows: “When a collector shall receive taxes on lands, he shall designate in his receipt for same the particular tracts on which the taxes are paid, naming the range, township, section, quarter section, or quarter quarter section, as the case may require, or, if paid on town lots, then he shall designate the lots on which the taxes are paid, giving the number of the lots, the square or block, and the street or alley on which they are situate.” Without a statute permitting a payment on a designated part, a taxpayer could not tender a portion of the tax and demand a receipt therefor, as the law ordinarily intends that taxes shall be paid in full at one time. 37 Cyc. 1164. Consequently the Legislature enacted this statute, expressly authorizing the payment of the tax on designated parts of a larger tract, so as to cover instances where one's title to the balance of a piece, parcel or lot had failed, or where he never owned it (as here is the case with the Wellworth Realty Company), recognizing the theory that a land, tax always runs with the land itself independently of a personal obligation. Sec. 11499, R. S. 1909; Neenan v, St. Joseph, 126 Mo. 89; State ex rel. v. Sergeant,. 76 Mo. 557; Charley v. Kelley, 120 Mo. 134; St. Louis v. Contracting Co., 202 Mo. 451; State ex rel. v. Snyder, 139 Mo. 549; Pleadwell v. Class Co., 151 Mo. App. 65. The statute must be construed as a whole and so as to produce a reasonable and just result. State ex rel. v. Railroad, 215 Mo. 492; Strodtman v. Railroad, 228 Mo. 154; State ex rel. v. Ryan, 232 Mo. 77.
   ROY, C.

Proceeding by mandamus; defendant moves to quash the alternative writ. The motion .was. .overruled, .and defendant electing to stand on his overruled motion as on an overruled demurrer, refused to make further return or to plead, and the judgment issuing the .peremptory writ followed from which he has appealed. On June 1, 1908, the relator, Berthold Investment Company, was the owner of a strip of land extending from Compton avenue westward about three-fourths of a mile to Crand avenue. It was about three hundred and fifty feet wide, was intersected by three streets, thus throwing portions of it in four different city blocks. A suit was then pending to condemn the north part of that property for an extension of Kingshighway a hundred and seventy feet, wide and the full length of the property. A judgment of condemnation was entered January 5, 1909, in that' suit.. On January 21, 1910; the said investment company conveyed the portion of land not taken for the street to relator, Wellworth Realty Company. On April 28, 1910, the relators tendered to the defendant five hundred and ten dollars, the full amount of all taxes, interest, penalties and costs for the taxes for the year 1909 on- that part of the land not condemned for the street, computing the amount due by taking such proportion of the whole tax, interest, penalties and costs as the uncondemned land bore to the whole' tract prior to such condemnation, according to area. At the time of making such tender, relators demanded of. defendant tliat he accept the same and enter the taxes as paid in full on the uncondemned portion of the land, which demand was refused. The peremptory writ ordered defendant to accept the amount tendered as stated and give the relators a proper receipt and enter the payment in full of the taxes on the uncondemned land.

The latter part of section 11459, Revised Statutes 1909, is as follows: “The collector shall receive taxes on part of any lot, piece or parcel of land charged with taxes: Provided, the persons paying such tax shall furnish a particular specification of the part, and if the tax on the remainder of such lot and parcel of land shall remain unpaid, the collector shall enter such specification in his return, to the end that the part on’ which the tax remains unpaid may be clearly known. If payment is made on an undivided share of real-estate, the collector shall enter on his record the name of the owner of such share, so as to designate upon whose unidivided share the tax has been paid.”

Appellant contends that the statute only applies in cases where the part on which payment is desired to be made is assessed separately from the other part of the “lot, piece or parcel.” Such a construction would render the statute useless. Of course, where a lot is divided between different owners, and is assessed accordingly, there is no need of a statute directing the collector to recéive payment on the different parts, separately assessed as shown on the books. The statute provides that the person paying on a part of the lot “shall furnish a particular specification of the part.” If the part were already segregated on the book, it would not be necessary to furnish such specification. That statute means just what it says, that where a lot, piece or parcel of land appears on the tax book, any person can furnish the collector with a particular specification of any part thereof, pay the taxes on sucb part, get bis receipt and. have tbe entry of payment made.

It is contended that tbe various parts of sucb tract may not have a value in proportion to tbe area, and that tbe collector bas no sucb powers as tbe assessor, and cannot apportion tbe value of tbe different parts of a tract wbicb bas been assessed in solido. There is no showing in this case that a payment in proportion to tbe area is not equitable and fair. "Whether sucb proportion should be used in all cases we will not now decide.

Tbe judgment is affirmed.'

Williams, G., concurs.

PER CURIAM.

-The foregoing opinion of Roy, C., is adopted as tbe opinion of tbe court.

All tbe judges concur.