author: RAILEY, C.

text:
    THE STATE v. JOHN H. JACKSON, Appellant.
    Division Two,
    June 4, 1920.
    1. CARRYING CONCEALED WEAPON: Information. The information, charging defendant with the crime of carrying a concealed weapon, is set out in the statement, and held to he sufficient in form.
    2. -: Verdict. Likewise is the verdict, finding defendant guilty in manner and form as charged in the information and assessing his punishment at a fine of $250, held sufficient in form.
    3. --: Substantial Evidence. The evidence of defendant’s guilt being substantial, it is the province of the jury to pass upon the facts, under proper instructions.
    4. -: Instructions: General Assignment. A general assignment in the motion for a new trial in a criminal case that “the verdict is against the law as declared in the instructions given by the court” is too indefinite to require consideration on appeal.
    5. -: Demurrer to Evidence: Waiver. It is the duty, of the jury to determine the issues under all the evidence in the case; and where defendant puts in his own evidence, he waives his contention that the trial court erred in overruling’ his demurrer to the evidence presented at the close of the State’s case.
    6. ---: Postmaster. The fact that defendant was postmaster and carried the Government’s money and stamps upon his person for safekeeping did not excuse him for carrying a pistol intentionally concealed, under Section 4496, Revised Statutes 1909; and whether he intentionally carried the pistol concealed, was a question for the jury.

      7. -: Intention. Tlie intention of the defendant in carrying a weapon concealed is not affected by the fact that he was under bond as postmaster; and the court does not commit harmful error in orally announcing that testimony that defendant was under bond is not competent to establish his intention.
    8. REMARKS OF COUNSEL: Trivial Interruptions. Remarks of the prosecuting attorney based upon testimony, or arguments and opinions drawn from the testimony, are not prejudicial error; and while improper remarks, calculated to prejudice the jury against a defendant charged with crime, should not be allowed, trivial interruptions of the prosecuting attorney, made for the purpose of breaking the force of his argument to the jury, should not be tolerated.
    Appeal from Gasconade Circuit Court. — Hon. R. A. Breuer, Judge.
    Affirmed.

      Frank W. McAllister, Attorney-General, and H. P. Ragland for respondent.
    (1) The information contains every necessary allegation and is in accordance with approved precedents. Sec. 4496, R. S. 1909 j Kelley’s Criminal La.w and Practice, sec. 588, p. 517; State v. Athanas, 150 Mo. App. 588; State v. Smith, 24 Mo. App. 413. (2) The verdict is sufficient. A general verdict finding the defendant guilty as charged in the information, when the information is not duplicitio.us, is good. State v. Richardson, 248 Mo. 575; State v. Margin, 230 Mo. 692; State v. Stark, 202 Mo. 221. (3) The.assignments that the verdict is “against the evidence” and “against the law” are insufficient and are not entitled to consideration by this court. State v. Oran Mann, 217 S. W. 69; State v. Rowe and Sanders, 271 Mo. 94; State v. Selleck, 199 S. W. 130; State v. McBrien, 265 Mo. 604; State v. Scott, 214 Mo. 261; Sec. 1841, R„ S. 1909. (4) The defendant put before the jury his own testimony after his demurrer to the State’s evidence had been overruled. In so doing he waived his right to be heard in this court on that subject. State v. Mann, 217 S. W. 69; State v. Martin, 230 Mo. 700; State v. Lackey, 230 Mo. 713; State v. Grow, 235 Mo. 329; State v. Cummings, 248 Mo. 518; State v. Selleck, 199 S. W. 130; Riley v. O’Kelley, 250 Mo. 660. (5) Instruction 4, of wkicli appellant complains, is sufficient in form and substance. Sec. 4496, R. S. 1909. Where a person carries a deadly weapon concealed about his person with the intent to conceal it, it does not matter what his purpose or how harmless his motive in carrying it, provided his carrying it does not come within the exceptions of the statute. State v. Ho vis, 135 Mo. App. 544; State v. Carter, 259 Mo. 359. (6) The remarks of the court do not constitute error. 16 C. J. sec. 2093, p. 828; 16 C. ,s. see. 2101, p. 831; State v. Clinkenbeard, 185 S. W. 544; State v. Hovis, 135 Mo. App. 544. (7) It is within the range of legitimate argument for counsel to state and discuss the evidence and all reasonable and legitimate in - ference which may be drawn from the facts in evidence. 16 C. J. sec. 2240, p. 896; State v. Farrell, 246 Mo. 335; State v. Pipkin, 221 Mo. 453; State v. Sublett, 191 Mo. 174. . . . , ^ i(i__
   RAILEY, C.

On July 14, 1919, the prosecuting attorney of Gasconade County, Missouri, filed in the circuit court of said county, a verified information charging defendant with the crime of carrying a concealed weapon. The information, without caption and jurat, is as follows:

“ J. W. Hensley, prosecuting attorney within and for the County of Gasconade, in the State of Missouri, informs the court upon the sworn complaint of Fred Bodendick that, on the 29th day of May, 1919, at and in the County of Gasconade, in the State of Missouri, John H, Jackson, not being then and there a legally qualified sheriff, police officer or other persdn whose bona-fide duty it was to execute process, civil or criminal, make arrests or aid in conserving the public peace, and not being then and there traveling in a continuous journey peaceably through the State of Missouri, did unlawfully and feloniously carry concealed about his person a certain deadly and dangerous weapon, to-wit: a revolving pistol; against the peace and dignity of the State.

“J. W. Hensley,

“Prosecuting attorney of Gasconade

“County, Missouri.”

On September 8, 1919, defendant was properly arraigned and entered his plea of not guilty.

The evidence, on the part of the State, tends to show that on the evening of May 29, 1919, Fred Bodendick, prosecuting witness in this case, arriving in Bland, Gasconade County, this State, from Hermann, also in this State, went directly to the light plant and garage to see oné Coonie Miller, relative to a trip back to Hermann next day. Upon arriving at the light plant and garage, he saw the defendant, John H. Jackson, in the act of filling one of the tires of his car which he had there, with air. Defendant finished, put on his coat and walked around to the back of the car, met Bodendick, who said to him, “Ton have been running over the family and probably you want to run over me,” whereupon he struck defendant, and defendant ran his hand in his right outside pocket. Bodendick, seeing this action, took hold of defendant and they scuffled until, Bodendick says, defendant said he had enough. During this altercation. Bodendick did not see defendant with a pistol, nor did he know that he had one, although while they were scuffling he felt something in defendant’s pocket. After the scuffle, thev both walked back toward the car and, at this time, defendant reached down and picked something from the ground Bodendick saw that defendant had a gun or pistol, and attempted to “grab” his hand. Defendant fired, and Bodendick turned and ran; defendant followed, discharging the pistol five times, firing each shot in Bodendick’s direction. The first went through his “pants” and one of the others through his “shirt.” It appears that defendant was the postmaster at Bland, and Bodendickk wife had told him that defendant had ejected his (the witness’s) daughter twice from the postoffice. One witness testified that defendant was not a sheriff, constable, police officer or any officer authorized to execute process or make a criminal arrest, and several other witnesses who were present and saw the encounter testified that they did not at any time see a g-un or pistol until after defendant had picked one up from the ground, and their testimony as to the other incidents are substantially as outlined above.

At the conclusion of respondent’s evidence in chief, the defendant asked, and the court refused, the following instruction:

“The court instructs the jury that under the law and the evidence in this case, you should find the defendant not guilty.”

An exception was saved to this ruling.

The evidence on the part of the defendant tends to show that he was the postmaster at Bland and, on the' evening of the 29th of May, 1919, he closed the postoffice about seven o’clock, and, not having a safe in the office, he placed- the money, stamps and money orders in his pocket to take home for safe-keeping, as it was his custom to do. He also placed in his right-hand outside coat pocket, his pistol, and, as he states, the lapel of the pocket of his coat was turned in, and the pistol not concealed. He had recently bought an automobile from Mr. Neese, the cashier of the Commercial Bank, and had made an appointment with him to test the car out, to ascertain whether or not it was in good running condition. The defendant was intending to make a trip to New Salem the next da3r. After the ride, and after Mr. .Neese had left him, he went to the garage to fill one of the tires of the car with air, intending to leave immediately for his home. After filling the tire, he put on his coat and noticed the butt of the pistol protruding from his pocket. After putting on his coat, and after he started to get into the car, he noticed the valve cap of the air-stem on the ground, and stooped to put it on. While doing this, he heard Bodendick, or some one else, say something, turned his head and saw that it was Bodendick, who immediately kicked him while he was still in this position. He grabbed Bodendick by the leg and was “slung” loose and kicked in the ribs twice more. Defendant again “grabbed” Bodendick’s leg and they .both fell in a nearby ditch, and as they crawled out, Bodendick, being somewhat ahead of defendant, started to pick up something, and, as defendant said, made some threatening remark, just what it was he did not know. At this time, he saw his gun on the ground, picked it up, and as Bodendick “grabbed” him again fired at him and continued to do so five times.

Defendant says that he does not know how the gun came to be on the ground.

After the shooting, defendant surrended to a deputy sheriff and was released on bond. The instructions and such other matters as may be deemed important, will be considered in the opinion. The case was tried on September 8, 1919, before a jury, and the latter returned into court the following verdict:

“We, the jury, find the defendant guilty, in manner and form, as charged in the information,'and assess his punishment at a fine of $250.

“Geo. Ruediger, Foreman.”

On September 10, 1919, the court prounounced judgment and sentence upon defendant in conformity with the terms of the verdict. Defendant, in due time, filed his motion for a new trial, which was overruled, and the cause appealed by him to this court.

Information.

I. The information heretofore set out is sufficient in form and is in accordance with approved precedents. [Sec. 4496, R. S. 1909; State v. Athanas, 150 Mo. App. 588; State v. Smith, 24 Mo. App. 413; Kelley’s Crim. Law & Practice, sec. 588, p. 517; State v. Carter, 259 Mo. l. c. 360; State v. Barton, 209 S. W. 888-9.]

Verdict.

II. The jury found defendant guilty as charged in the information and assessed his punishment at a fine of $250. The verdict was sufficient in form. [State v. Richardson, 248 Mo. l. c. 575-6; State v. Elvins, 101 Mo. 243; State v. Berning, 91 Mo. 82-5.]

III. Defendant, in his motion for a new trial, assigns the following errors:

“1. The verdict is against the evidence.

£ £ 2. The verdict is against the law as declared in the instructions given by the court.”

instructions

There was substantial evidence offered at the trial to sustain the verdict against defendant. It was the Province °f the jury to pass upon the facts under the instructions of the court. Aside from the foregoing, we have uniformly held that such general assignments are too indefinite to require at our hands further consideration of same. [State v. Mann, 217 S. W. l. c. 69; State v. Rowe and Sanders, 271 Mo. l. c. 94, 196 S. W. 7; State v. Selleck, 199 S. W. l. c. 130-1; State v. McBrien, 265 Mo. l. c. 604-5, 178 S. W. 489; State v. Sydnor, 253 Mo. l. c. 380, 161 S. W. 692; State v. Scott, 214 Mo. l. c. 261, 113 S. W. 1069; State v. Espenchied, 212 Mo. l. c. 222-3, 110 S. W. 1072; Sec. 1841, R. S. 1909.]

t^Eviflence.

IV. Appellant, in his third assignment, contends that the trial court committed error in overruling his demurrer to the evidence at the conclusion of the State’s evidence in chief. The defendant, having put before the jury his own evidence, and rebuttal testimony having been introduced, he waived his right to be heard, on the original demurrer, as it became the duty of the jury to determine the issues under all the evidence in the cause. The ruling, in respect to above matter, has become elementary law in this State, as shown by the following authorities; State v. Mann, 217 S. W. 69; Lareau v. Lareau, 208 S. W. l. c. 243; State v. Selleck, 199 S. W. l. c. 130; Riley v. O’Kelly, 250 Mo. l. c. 660; State v. Cummings, 248 Mo. l. c. 518; State v. Gow, 235 Mo. l. c. 329; State v. Lackey, 230 Mo. l. c. 713; State v. Martin, 230 Mo. l. c. 700; Riggs v. Railroad, 216 Mo. l. c. 310; Hilz v. Ry. Co., 101 Mo. 42; McPherson v. Ry. Co., 97 Mo. 255; Guenther v. Ry. Co., 95 Mo. l. c. 289; Bowen v. Ry. Co., 95 Mo. l. c. 275-6.

(a) There is nothing in the record before us which indicates that defendant filed a. demurrer to the evidence at the conclusion of the whole case, but even if one had been filed, the trial court would have been justified in overruling same, as there was substantial evidence offered at the trial sustaining thé verdict of the jury.

Y. Appellant’s fourth assignment, reads as follows: “4. Because the court* erred in giving instruction No. four, as asked by the State.”

Said instruction four, is couched in the following language:

“The couid instructs the jury that the fact that the defendant was postmaster or had money or stamps upon or about his person is not of itself a defense to this action and does not authorize or excuse him for carrying the pistol concealed, if you find he did so intentionally carry it concealed.”

This assignment is conclusively settled adversely to the contention of appellant, in State v. Carter, 259 Mo. 1. c. 360, where we said, in construing Section 4496, Revised Statutes 1909;

“The court did not err in refusing to allow the defendant to prove that he had been threatened with great bodily harm or had good reason to carry the weapon in the necessary defense of his person. The above were proper defenses under Section 1863, Revised Statutes 1899. But that section was repealed in 1909 and a new section (Sec. 4496, R. S. 1909) was enacted in lieu thereof. [Laws 1909, p. 452.] Those defenses are not available to the defendant charged with carrying concealed weapons under the new act. ’ ’

To the same effect is State v. Reagan, 217 S. W. 84-5.

It was a question for the jury as to whether defendant intentionally carried his pistol concealed. If he did so, then the fact that he was postmaster, or had money or stamps upon or about his person, did not excuse him for violating the plain provisions of Section 4496 supra. It is evident, that the lawmakers of this State, in the enactment of Section 4496, were attempting to put a 'stop to the carrying of firearms, except in respect to those cases where the persons in charge thereof were authorized by said section to carry same. The foregoing contention of appellant is accordingly overruled.

VI. The fifth assignment reads as follows:

incompetent Evidence.

“5. Because the court 'erred in admitting incompetent, illegal and irrelevant testimony offered by the State over the objections and exceptions of the defendant.”

No brief has been filed by appellant and the general objection supra does not point out to us any specific objectionable evidence, alleged to have been offered by the State. We have, however, read the record carefully, in passing upon the questions involved, and do not find any adverse rulings of the court, in respect to above matters, of which the defendant can have any legal grounds of complaint.

“t.

VII. In his sixth assignment of error, appellant asks for a reversal of the cause: “Because the court erred in making the following prejudicial statement in the presence and hearing of the jury.” The matters complained of under this caption, occurred as follows:

“Q. By Mr. Baxter to Defendant: I will ask you if you are under bond to protect the funds of the United States Government in the postoffice?

“Mr. Hensley: I object to that; that is not material.

“The Court: It don’t give him authority to carry a pistol.

“Mr. Baxter: We are offering the evidence to show the intention of the defendant as to whether or not he intended to carry this pistol concealed.

“The Court: The law says he shall not carry it concealed except on certain conditions and the intention don’t make any difference.

“Mr. Baxter: If the court please, the intention is the primary feature, in this case — as to whether or not this defendant intended to carry this pistol concealed.

“The Court: The law says under what conditions a man may carry a pistol concealed, and when he carried it under any other conditions concealed, the intention don’t cut any figure.

“ (To which ruling of the Court the defendant by his counsel then and there duly excepted and still excepts).

“Which said error was not cured by the court later giving Instruction D. offered by defendant. ’ ’

The court was clearly within the law in making the above statements. [State v. Carter, 259 Mo. l. c. 360.] The first question, above quoted, clearly indicated that defendant’s counsel was attempting to show that his client ought to be excused for carrying a concealed weapon, if he was under bond to protect the funds of the United States Government. The court not only ruled correctly, in respect to above matter, but at the instance of defendant, gave the jury Instruction D, which reads as follows:

‘ ‘ The court instructs the jury that to conceal a weapon means something more than carrying it or the mere fact of having it where it may not be seen. It implies an assent of the mind and a purpose to carry it so that it may not be seen; and the court instructs you that if you find and believe from the evidence that the defendant John Jackson, did not intend to carry the pistol mentioned and described in the information herein concealed, then you should find the defendant not guilty.”

This assignment is without merit and is overruled.

Argument to Jury.

VIII. In appellant’s seventh assignment of error, it is claimed that counsel for the State was permitted to indulge in improper statements in his argument to the jury. The following occurred:

“Mr. Monroe (Attorney for State): The prosecuting' witness says that during the scuffle something fell on the ground— ,

“Mr. Baxter (interrupting): There is no evidence on the part of the prosecuting witness, and he did not testify, that anything fell on the ground.

“The Court: That is a mere matter of argument; go ahead.”

Turning to the transcript of the evidence, we find that defendant’s counsel had the prosecuting witness testify as follows:

“Q. Now, you say the first time you saw this pistol was when Mr. Jackson had stooped and picked it up off of the ground?

“A. He picked something off of the ground and the first I seen it was in his hand. . . .

“Q.' You don’t know where that pistol came from that Mr. Jackson picked off of the ground? A. No, sir. ”

In view of the foregoing, we are of the opinion that the interruption of respondent’s counsel was without merit, and properly overruled.

Complaint is also made as to the remark of respondent’s counsel to the effect that, when Jackson tried to get that pistol out, he tore his pocket. The prosecuting witness said defendant ran his hand in the pocket of his coat. He further testified:

“Q. Well, what was the condition of the pocket after he did this? A. The lining was torn wrong side out, it looked like about half way, and his coat was tore' down the side a little ways.”

In view of the foregoing, counsel for respondent was simply giving it as his opinion, that Jackson tore the pocket out in getting the pistol. It was the province of the jury to determine the facts, and no harm was done in overruling the- above objection.

Other remarks of the State’s counsel were objected to, but we find there was no merit in the objections thus made. While it is the duty of the trial court to protect a defendant charged with crime, from improper remarks, calculated to prejudice the jury against him, yet, on the other hand, trivial interruptions of the prosecuting attorney, made for the purpose of breaking the force of his remarks to the jury, should not be tolerated.

The issue in this case, was whether the defendant was carrying a concealed weapon, in violation of law. The facts were put before the jury without prejudice, and there is no' merit in any of the objections above referred to in the motion for a new trial.

IX. The defendant had a fair and impartial trial upon proper instructions given by the court. He was convicted upon substantial evidence and we find no grounds for disturbing the verdict of the jury.

The judgment below is accordingly affirmed.

White, and Mozley, GG., concur.

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

All of the judges concur.


source: Caselaw Access Project

author: • MOZLEY, 0.

license: Public Domain

text:
    THE STATE v. MORRIS RUSSELL WOLFE, Appellant.
    Division Two,
    June 4, 1920.
    DENTIST: Practicing After License Revoked: Conviction Nullified By Civil Case. Where the registration and license of defendant as a dentist were revoked by the Missouri Dental Board and in the proper civil proceeding the Supreme Court has ruled that under the statute the said board had no authority to revoke his original certificate of registration and his license issued thereon, a conviction of the defendant upon a charge of practicing dentistry without being legally registered and without having a license authorizing him to practice must be reversed.
    Appeal from Jackson Criminal Court. — Hen. Ralph 8. Latshaw, Judge.
    Reversed.

      Frank M. Lowe for appellant.
    (1) The court erred in failing to quash the information because the law is unconstitutional, in that it violates Section 30 of Article 2 of the Constitution of-the State, which says that no person shall be deprived of life, liberty or property without due process of law. (2) The court erred in failing to hold that under the law the Missouri Dental Board had no right or authority to revoke both the certificate of registration and ■ the license. (3) ■ The court erred in refusing to sustain appellant’s demurrer for the reason that in failing to notify the appellant as provided for by Sec. 5495, Laws 1917, p. 260, the board required no jurisdiction to' revoke either the certificate of registration or the license, and said pretended act was wholly void. (4) The court erred in failing to hold that the action of the Dental Board under the facts and the law, in attempting to take away appellant’s certificate of registration and license, violated the provisions of the Constitution of the United States, Section 1, Article 14, regarding the depriving of the appellant of both his liberty and his property without due process of law, and that it violated the Constitution of the State of Missouri, Section 30 of Article 2, in that it deprives the appellant of both his liberty and his property without due process of law.

      Frank W. McAllister, Attorney-General, and Geo. V. Berry, Assistant Attorney-General, for respondent.
    (1) Under the holding of the court in State ex rel. Wolfe v. Dental Board 282 Mo.'292, appellant was not guilty of violáting the Dental Act by practicing dentistry without a license, and we therefore submit that this conviction in the Criminal Court of Jackson County, being erroneous, should be by this court reversed. (2) We believe, as the court did in the civil case, that appellant had not properly raised, his third point, the constitutionality of the Dental Act, but as the case rides off on the other two points, we anticipate that in any event the court would not pass upon this point, so we have undertaken to brief it.
   • MOZLEY, 0.

Defendant, Morris Russell Wolfe, was, informed against at the September term, 1918, of the Criminal Court of Jackson County, on a charge of having practiced dentistry without being legally registered and without having a license authorizing him to do so. Upon his plea of not guilty, he was tried on the 7th day of the January term, 1919, and the case was taken under advisement until the 13th day of said January term, when defenant was adjudged guilty as charged and a fine was assessed against him of $100. It was contended (and still is. contended) by defendant that the statute under which he was convicted violates Section 30 of Article 2 of the State Constitution and Section 1 of Article 14 of the Constitution of the United States, both of which said sections provide that “no person shall be deprived of life, liberty or property, without due process of law.” By reason of said constitutional question the case was appealed to this court.

The predicate upon which the prosecution is based was arrived at as a result of a hearing upon charges made against defendant before the Missouri Dental Board, at which hearing said board rendered the following judgment: • ■

“The Missouri Dental Board, therefore, on the facts above found and stated and on motion duly made and seconded and carried hereby revokes the original certificate of registration issued to the said Morris Russell Wolfe and the license issued to him by the Missouri Dental Board under which he is npw. practicing dentistry and from henceforth said original certificate of registration and said license to practice dentistry issued to him by this board are hereby revoked and for naught held.”

The case in hand has been determined by our Court in Banc, speaking through Williamson, J., in the case of the State ex rel. Wolfe (defendant herein), appellant, v. Missouri Dental Board, respondent, reported in 282 Mo. 292.

In this case the same constitutional question was raiséd as in the instant case, viz., that the law under which said board held the investigation of charges against defendant and the law under which he was prosecuted were in violation of the due process provision Article 2, Section 30, of the Slate Constitution and violative of Section 1 of Article 14 of the Constitution of the United States in relation to the same subject. Court in Banc deemed it unnecessary to pass on said constitutional question, but it did hold that under Section 5493, Laws 1917, the Missouri Dental Board had no power or authority to revoke defendant’s original certificate of registration and his license which had been issued thereon, and that the attempt of said board to do so was void and of no effect.

' Since this opinion was handed down it is due to the Attorney-General’s office to say it agrees that the case will have to be reversed.

We think that it should be thus disposed of, and accordingly reverse the judgment of the lower court and discharge the defendant.

Railey and White, GO., concur.

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

All of the judges concur.


author: WILLIAMS, P- J.

text:
    THE STATE v. ED NASH and DUTCH FORGEY, Appellants.
    Division Two,
    June 4, 1920.
    INFORMATION: Disturbing Religious Worship. The information in this case charging that defendants did "unlawfully, willfully, maliciously and contemptuously, disturb and disquiet a eongregation of people then and there met for religious worship, by then and there making a loud noise and by rude and indecent behavior,” is set out in full, is held to charge a misdemeanor, is in the language of the statute and is sufficient in form and substance.
    Appeal from Christian Circuit Court. — Eon. Fred Stewart, Judge.
    Affirmed.

      Frank, W. McAllister, Attorney-General, G. P. Le Mire, Assistant Attorney-General, and William L. Vandeventer for respondent.
    (1) There are numerous reported cases in this State holding that an information which follows the words of the statute on which it is based, is sufficient; and there are also many cases holding that the same strictness of pleading is not required in misdemeanors as in felonies. Sec. 4713, R. S. 1909; State v. Schieneman, 64 Mo. 386; State y. Ellis, 71 Mo. App. 269; State v. Stegall, 65 Mo. App. 243; State v. Stubblefield, 32 Mo. 563; State v. Robertson, 262 Mo. 621; City of Eldorado v. Highfill, 188 S. W. 68. (2) The information in this case charges an offense under Sec. 4713, R. S. 1909, in the exact language of the statute.
   WILLIAMS, P- J.

Upon an information charging them with disturbing a congregation of people met for. religious worship, defendants were tried in the Circuit Court of Christian County, found guilty and each fined the sum of one dollar.

Thereupon defendants duly appealed to the Springfield Court of Appeals. The Court of Appeals affirmed the judgment. The opinion therein will be found reported in 216 S. W. 1004. The ease was certified here on the ground that the opinion therein conflicted with certain opinions of the St. Louis Court of Appeals and thé Kansas City Court of Appeals.

The only question involved is as to the sufficiency of the information which, omitting formal parts, is as follows:

“William L. Yandeventer, prosecuting attorney, within and for the County of Christian, in the State of Missouri, informs the court upon his official oath — that Dewey Ladd, Clarence Smith, Ed Nash and Dutch Forgey, on or about the 16th day of March, 1919, in the said County of Christian, in the State of Missouri, did then and there, unlawfully, willfully, maliciously and contemptuously, disturb and disquiet a congregation of people then and there met for religious worship, by then and there maMng a loud noise, and by rude and indecent behaviour within their place of worship and so near the same as to disturb the order and solemnity of the meeting; contrary to the form of the statute in such eases made and provided and against the peace and dignity of the State.”

It will be noted that the above information charges a misdemeanor and is in the language of the Statute. [Sec. 4713, R, S. 1909.]

We are of the opinion that the information is sufficient. [State v. Stubblefield, 32 Mo. 563.]

The matter has been fully and" ably discussed by our learned brethern on the Court of Appeals, each judge thereof having written an opinion thereon. Every phase of the subject will be found fully treated therein. We fully concur with the views expressed in the majority opinion by Farrington, J., and in the separate concurring opinion by Sturgis, P. J., and for that reason further discussion here is deemed unnecessary. For the reasons therein stated we affirm the judgment,

AH concur.


author: WHITE, C.

text:
    THE STATE v. MACK NAVE, Appellant.
    Division Two,
    June 4, 1920.
    1. IMPEACHMENT: Expressed Opinion. Contradictory statements, to be competent for purposes of impeachment, must be statements of fact pertinent to the issues, and not merely matters of opinion. So that testimony of a witness that, he had stated to defendant’s father that he “thought” defendant had stolen the mules is not competent for the purpose of impeaching the father’s testimony, but its admission is gross error.
    2. GUILT: No Evidence. In order to convict it is necessary to connect, by competent evidence, the defendant with the commission of the crime. And in this case there is no such evidence and the defendant is discharged.
    8. -:-: Might As Well Plead Guilty. A statement of a fifteen year-old boy, under arrest and in the custody of the sheriff, away from home, with no friend or counsel to advise him, when told by the sheriff that he must have a preliminary trial or waive it, “I guess I just as well plead guilty,” is only an expression of helplessness and despair, and under the circumstances ought not to be considered evidence against him.
    4. -: -: Loaning Mule To Thief. The fact that defendant loaned a mule to the hired hand, whose guilt is certain, to ride the night he took the stolen mules from a pasture, if it is shown that defendant knew where the hired hand was going or what he borrowed the mule for, might have some probative force; but there is nothing unusual in lending a horse or mule to a hired man to ride, and of itself it shows no connection on defendant’s part with the crime.
    Appeal from Taney Circuit Court. — Hon. Fred Stewart, Judge.
    Reversed.

      G. W. Thornberry and D. F. McConhey for appellant.
    (1) This conversation between witness Combs and Willis Nave, the father of defendant, to the effect that they believed the defendant was guilty, had in the absence of the defendant, was incompetent for any purpose and wholly inadmissible and highly prejudicial. (2) Taking all the testimony in connection, it is not sufficient to warrant a conviction under the law. The testimony is purely circumstantial and does not establish the corpus delicti, which is necessary in all cases to sustain a conviction. (3) Mere suspicion, however strong, will not supply the place of evidence when life or liberty is at stake. State v. Jones, 106 Mo. 313; State v. Hammond, 226 Mo. 604; State v. Crabtree, 170 Mo. 657.

      Frank W. McAllister, Attorney-General, and George V. Berry, Assistant Attorney-General, for respondent.
    The bill of exceptions is not authenticated by the trial Judge; therefore, there is nothing before this court but the record proper. Secs. 2030-2037, R. S. 1909; State v. Griffin, 249 Mo. 626; State v. Watts, 248 Mo. 495; State v. Brown, 216 Mo. 377; State v. Libby, 203 Mo. '597; State v. Collins, 196 Mo. 88; Reno v. Fitz Jarrell, 163 Mo. 413; Cooper v. Maloney, 162 Mo. 687; State v. Brown, 164 Mo. App. 727.
   WHITE, C.

The defendant was indicted in the Circuit Court of Taney County on a charge of grand larceny, was convicted April 24,1919, and his punishment assessed at two years’ imprisonment in the State Penitentiary, and appealed.

Defendant was chargód with stealing two mules that belonged to James Beck. Beck lived just within the State of Arkansas, about three miles from Protem, Missouri. On the night of August 11, 1916, which was said by the witnesses to be Friday night, two bay mules belonging to Beck disappeared and he was unable to find them. Abon* six weeks later he learned they were at the barn of Rich Kissee at Ozark, in Christian County; he went there, identified them and took them away. On Monday following the Friday night on which the mules were stolen. they were sold to Stone & Hesterlee, by one Wayne Moulder, for $160, although at the time they were worth $235. Stone & Hesterlee immediately sold them to Kissee.

The facts relied upon by the State to connect the defendant with the theft of the mules, briefly are as follows:

Mack Nave was a boy about fifteen years of age and lived with his father, Willis Nave, in Taney County, about twenty miles from where Beck, the owner of the mules, lived. Willis Nave had a son, Perry Nave, who lived in the neighborhood of Protem, a few miles from where Beck lived. On Friday, about August 11th, Mack Nave passed Beck’s house and watched the house with unusual and unnecessary intentness, according to the statement of Beck; the mules disappeared that night. On Sunday, two mules with halters on, answering the general description of Beck’s mules, were seen in Willis Nave’s pasture. It was suggested to Mack Nave that they had better be driven out; he said, “Let the mules get out the way they got in. ’ ’ The witnesses who saw those mules couldn’t tell whether they were fastened up by halters or not. The defendant, Mack Nave, was in the neighborhood of Protem at the time the mules were stolen and, according to the testimony of his brother, he stayed all night at Perry’s house on that night, and remained there until noon the next day.

Wayne Moulder, who sold the mules to- Stone & Hesterlee two days after they were stolen, was a farm hand in the employ of Willis Nave. When he brought the mules to Ozark he was riding, a mule which belonged to Willis Nave; Mack Nave, the defendant, told some of the witnesses that he loaned Moulder that mule to ride Sunday night.

As soon as the mules were recovered the defendant was arrested by the Sheriff of Christian County and taken to Ozark. On the way the sheriff stopped at Sparta, in Christian County, where he told his prisoner that he would have to take him before a justice of the peace. He explained to Nave that he would have to have a preliminary trial or else waive it. The defendant did not seem to understand that he would have to go through a preliminary trial, and after further explanation, he said: “Well, I guess I just as well plead guilty.” Other witnesses heard him make the statement in connection with a prehminary héaring. No objection was made to that evidence. The next morning after he was taken to Ozark, his father, Willis Nave, having ridden all night to reach Ozark, appeared there and paid Hesterlee $207, the amount the mules had cost Hesterlee, with the expense. Hesterlee said he thought after that transaction the matter would be dropped. Beck then took the mules home. Wayne Moulder disappeared about the time the mules did and was not seen in the neighborhood afterwards.

On Sunday, when the mules were seen in Willis Nave’s pasture, the place was in charge of one Norman Combs who, it seems, had rented the place. He knew the mules referred to did not belong to Willis Nave. Some other facts are mentioned in the evidence, tending to show the movements of Mack Nave and Wayne Moulder in the neighborhood Saturday and Sunday after the mules disappeared from Beck’s place.

When Willis Nave was on the stand and recalled by the defendant in rebuttal, he was asked this question:

“I will ask you if you didn’t have a conversation with Norman Combs in which you said, ‘ Aint this a good get off?’ and he said, ‘Yes sir, it is,’ and you said, ‘What do you think of this?’ and he refused to tell you there before the family, and out in the field the next morning you asked him again, ‘What do you think about this?’ and you told him that you thought Mack had taken the mules?”

The witness denied making any such statement.

Norman Combs was then placed upon the stand and asked if the conversation took place — the defendant not present — in substantially the same language as in the question put to Willis Nave; he answered that Nave did make the statement. All this was duly objected to by appellant’s counsel and exceptions saved.

Impeachment.

I. The evidence offered and admitted to contradict Willis Nave was gross error While a witness may be impeached by showing that he has made statements at other times in contradiction of what he testifies on the stand, contradictory statements, which may , . „ ,. „ . , , be shown for the purpose of impeachment, must be statements of fact pertinent to the issue and not merely matters of opinion; facts which would be competent evidence, independent' of any inconsistency with the testimony of the witness. [Hamburger v. Rinkel, 164 Mo. 398, l. c. 407; McFadin v. Catron, 120 Mo. 252, l. c. 263; Schloemer v. Transit Co., 204 Mo., l. c. 116; Wojtylak v. Coal Co., 188 Mo. l. c. 289; Herman v. Ry., L. H. & P. Co., 144 Mo. App. l. c. 154.] Here the former statment of Willis Nave, which the State was allowed to prove, merely gave his opinion; it is not a statement of any fact within the knowledge of the witness or within the knowledge' of Nave. Its damaging character is sufficient to account for the verdict.

wit^crime.

II. In order to convict it was necessary, by competent evidence, to connect the defendant with the commission of the crime. The statement made by the appellant when under arrest that he thought he had better plead guilty was incompetent, but was not objected to. A boy, fifteen years of age, in custody of an officer, a threatened prosecution for grand larceny impending, with no friend or counsel near to advise him, makes the statement which on its face does not prove he actually participated in taking the mules, It was only an expression of helplessness and despair in the heart of the boy and, under the circumstances, ought not to be considered as evidence against him.

There is no other fact in the evidence which accomplishes more than to arouse a mere suspicion that he participated in! the theft. There is no doubt of the guilt of Wayne Moulder; he took the mules away from the neighborhood of Protem to another county and sold them, got the money and disappeared. It is not shown that the defendant assisted in any manner in taking the mules away or received any of the proceeds of the sale. He passed Beck’s house on the day preceding the night on which the mules were stolen and actually looked at Beck’s house with considerable interest. It is not even claimed that he looked at the mules or saw them on that occasion. He loaned Moulder the mule on which he rode the night he took the mules away. It is not shown to be anything unusual for one to loan a mule or saddle horse in that community without inquiring the purpose for which it may be used. If there had been evidence that Mack Nave knew where Moulder was going and what he borrowed the mule for, the evidence of that loan might have some probative force.

The mules seen in the pasture of Willis Nava the day after Beck’s mules disappeared were not shown to be the stolen mules. That pasture at that time was not in charge of Mack Nave or of his father, Willis Nave, but was in charge of Norman Combs, a witness for the State. It was not shown that the defendant brought the mules there or took them away or had anything to do with them while they were there except to tell someone that they might get out the way they got in.

The evidence was entirely insufficient to submit to the jury the question of the defendant’s, guilt.

The judgment is reversed and the defendant discharged.

Bailey and Mosley, GG., concur.

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

All of the judges concur.


text:
    THE STATE ex rel. MOBERLY SPECIAL ROAD DISTRICT, Appellant, v. C. R. BURTON et al., Judges of County Court.
    Division Two,
    June 4, 1920.
    .1. APPEAL: Record Proper. In mandamus, the alternative writ, the return thereto, a demurrer to the return and a judgment on the demurrer constitute the record proper, and no motion for a new trial, no motion in arrest of judgment, nor a bill of exceptions is necessary for a review of those record matters in the appellate court.
    2. SPECIAL ROAD DISTRICT: Ten Cent Levy: Discretion of County Court. By Section 37 of the Act of 1917, Laws 1917, pages 457-8, the tax of ten cents on the hundred dollars’ valuation levied by the county court upon all property situate within a special road district is to be paid into the county treasury, placed to the credit of the road district and paid out to said district upon warrants in favor of its officers. The county court has no discretion in the matter; but the tax not to exceed twenty cents on the hundred dollars’ valuation levied for road purposes by virtue of Section 11 of Article 10 of the Constitution, is by the statute, when collbcted, to be paid over to the special road district.
    Appeal from Randolph Circuit Court. — Hon. A. W. Walker, Judge.
    Reversed and remanded (ivith directions.)

      Willard P. Gave for appellant.
    (1) The return of respondents pleads a single defense, viz: That Sec. 10594, R. S. 1909, was repealed hy See. 106, p. 477, Laws of 1917; it is admitted by respondents that there is no specific repeal of Section 10594, but they assert it is repealed hy implication by Sec. 36, p. 457, Laws of 1917. (2) A repeal by implication is not favored in law, and the specific repeal of one section of a statute raises a clear implication that no further repeal was intended. State v. Morrow, 26 Mo. 131; State v. Jaeger, 63 Mo. 403; Manker v. Faulhaber, 94 Mo. 430. (3) Repeals by implication are not favored, and are only allowable where a later statute is so repugnant and irreconcilable with a former one that both cannot stand together. State ex rel. Gordon v. Hopkins, 87 Mo. 519; State ex rel. Martin v. "Wofford, 121 Mo. 61. (4) A subsequent act will not impliedly repeal a former one, where the two acts are so irreconcilably inconsistent. State ex rel. Younger v. Stratton, 136 Mo. 423; Donnell v. Lee, 101 Mo. App. 191; Lang v. Calloway, 68 Mo. App. 393; City of Lamar v. Adams, 90 Mo. App. 35. (5) The special law prevails over general provisions. 36 Cyc. 1151; Folk v. St. Louis, 250 Mo. 135; Manker v. Faulhaber, 94 Mo. 430; State ex rel. v. "Wilder, 197 Mo. 35; St. Louis v. Klausmeier, 213 Mo. 130; 1 Lewis’s Sutherland on Statutory Construction (2 Ed.), p. 529. (6) The provisions of the special road district law govern. Section 10606, R. S. 1909, reads: “The general road law in force in such County shall remain in force in such districts, except wherein the provisions thereof shall be in conflict with the provisions of this article.”

      Aubrey R. Hammett for respondent.
    (1) All statutes which are in pari materia, should be construed together in order to ascertain the legislative intent. State v. Shortell, 174 Mo. App. 153; State ex rel. v. Forrest, 177 Mo. App. 252; In re Estate of Ryan, 174 Mo. App. 207. And this is true, even though enacted at different dates. State ex inf. v. Koeln, 270 Mo. 191. In determining the legislative intent the whole body of the law on the subject • must be considered. Gantt v. Brown, 238 Mo. 577. (2) The different sections of the statutes relating to the same subject must be, for the purpose^ of construction, regarded as in pari materia. McClanaÉan v. DeWitt, 160 Mo. App. 307.
   RAILEY, C.

On April 24, 1918, there was filed in the Circuit Court of Randolph County, Missouri, by the Moberly Special Road District of said county, a petition for mandamus against respondents, G. R. Burton, A. B. McCoy and C. P. Fullington, qualified and acting judges of the county court of said county. The petition, alleges that it was the duty of said county court, at its regular May term, 1917, held on the fourth Monday in May, 1917,' to fix and determine the amount of the various tax levies on all property, both real and personal, subject to state, county, school and road taxes, within the limits ot said Randolph County, Missouri; that in compliance with their said duties, the judges of the county court aforesaid, at its May term, 1917, levied, among other things, ten cents on the one hundred dollars valuation, on all property in Randolph County aforesaid, for road and bridge purposes, in addition to the levy for special road and bridge purposes. The petition avers, that it was the. duty of said county court to cause all that portion of said levy of ten cents on the one’hundred dollars’ valuation, collected for general road and bridge purposes, ■within the territorial boundaries and limits of said Moberly Special Road District, to be turned over to the officers of the Moberly Special Road District of Randolph County, Missouri.

It is further averred, that there had been collected in the way of taxes, on said levy of ten cents on the one hundred dollars’ valuation, on property , lying within the territorial limits of said special road district, for the year 1917, and paid into the county treasury, the sum of $4066.40; that the same is now in said treasury of Randolph County, Missouri; that it was paid on real and personal property within said special road district, as road and bridge taxes, under the provisions of Section 36, of Article II, of the Laws of Missouri of 19.17, page 457.

The petition avers that on February 25, 1918, said special road, district requested said county court to issue to it and its officers, a warrant to the amount of $4066.40,. so collected on all property lying within the territorial limits of said special road district, as road and bridge taxes; that requests and demands were made before said moneys were distributed or paid out by said county court. .-

It is further alleged, that said county court refused to turn over or pay to said special road district, or to its officers, the said $4066.40, or any part thereof, but said judges of the county court aforesaid have refused to pay over, or cause to be paid, any of said road and bridge taxes, etc.

The petition concludes with a prayer for a writ of mndamus against the county court (judges aforesaid, requiring them and said county court to issue proper warrants, and pay over to said special road district, the said levy of road and bridge taxes, collected on property within said special road district, for the year 1917, amounting to $4066.40, etc.

Respondents filed their return, and denied all the allegations of petition, except such as are specifically admitted to be true. They admit that the Moberly Special Road District of Randolph County, Missouri, is organized and exists according to law; that said respondents, Burton, McCoy and Fullington, are the duly elected, qualified and acting judges of the county court of said county; they admit that it was the duty of said judges to fix and determine the tax levy, as set forth in above petition; they admit that there has been collected, in the way of taxes on property lying within the territorial limits of said special road district, for the year 1917, and paid into the county treasury, $4066.40, as set forth in petition and alternative writ; they admit that on February 25, 1918, said special road district requested said county court to pay over to said Moberly Special Road District, and before said moneys were distributed, the said- sum of $4066.40; they admit that said county court refused to pay said sum, so collected, as aforesaid, or any part thereof, to said special road district, and still refuse so to do.

■ Said return further avers that a writ of mandamus ought not to issue herein, for the reason, that Section 10594, Revised Statutes 1909, as amended by Section 1 of the Laws of Missouri of 1913, page 667, is repealed by Section 106 of the Laws of Missouri of 1917, page 477, and, for the further reason that, under the law as it now stands, it is optional and discretionary with, said county court as to paying the taxes collected and set forth in the petition, to the commissioners of said special road district, and, the county court, having exclusive jurisdiction thereof, having acted in the matter, the circuit court ought not by mandamus to compel said county court to reverse its decision, etc. •

Appellant demurred to said return, for the reason “that it appears upon the face thereof that the same does not state facts sufficient to constitute a defense, nor show any cause whatever for not obeying said writ. ’ ’

On April 24,1918, said demurrer was overruled. Appellant stood upon'its demurrer and refused to plead further. Thereupon the issues were found in favor of respondents and, on April 24, 1918, judgment was entered accordingly.

Appellant, in due time, appealed the cause to this court.

Appeai

I. As a matter of precaution, counsel for appellant filed a motion for a new trial, motion in arrest of judgment and a bill of exceptions. In this case, the alternative writ, the return thereto, the demurrer to said return, and the judgment, constituted the record proper. No motion for a new trial, motion in arrest of judgment, nor bill of exceptions, were necessary in order to present to this court the errors complained of herein. [Spears v. Bond, 79 Mo. 467; Hannah v. Hannah, 109 Mo. 236, 240-1; State ex rel. v. Campbell, 120 Mo. l. c. 403; Thorp v. Miller, 137 Mo. 231; McKenzie v. Donnell, 151 Mo. 431; Benton County v. Morgan, 163 Mo. l. c. 670; Mallinckrodt Chemical Works v. Nemnich, 169 Mo. l. c. 395; Dysart v. Crow, 170 Mo. l. c. 280; Meissner v. Railway Equipment Co., 211 Mo. l. c. 121-2; State v. Christopher, 212 Mo. l. c. 246; Shohoney v. Railroad, 223 Mo. l. c. 659-60; Houtz v. Hellman, 228 Mo. 655-663; Diener v. Chronicle Publishing Co., 230 Mo. l. c. 619-20.]

Act of 1917 '

II. After spending three days investigating the laws of this- State as they existed prior to 1917, in regard to the status of special road districts, we have reached the conclusion that appellant is entitled to main-

^11 thU action, unless it is precluded from so doing by the provisions of Sections 36 and 37 of the Laws of 1917, pages 457-8, relied upon by respondents. It is contended by the latter that the last named act, in legal effect, if not in terms, repeals the former laws upon this subject. Waiving the above contention for the present, we will first determine whether appellant is entitled to recover upon the record before us, under the Act of 1917, supra. If answered in the affirmative, there will be no necessity for passing upon the former question.

Respondents, in their return, ‘ ‘ admit that there has been collected in the way of taxes on property lying within the territorial limits of said Moberly Special Road District of Randolph County for the year 1917, and paid ’into the county treasury the sum of $4066.40 as set forth in plaintiff’s petition and alternative writ; admit that petitioner on the 25th day of February, 1918, requested said county court to pay over to said Moberly Special Road District, and before said moneys were dis - tributed, the said sum of $4066.40; admit that said county court has refused to pay said sum so collected as aforesaid or any part thereof to said Moberly Special Road District, and that they still refuse so to do.”

They take the position, that it is optional and discretionary with said county court as to whether it will pay to the special road district the tax collected and set forth in the above return; and that as the county court had jurisdiction over this matter, and acted, in regard to same, its decision should not be reversed.

Sections 36-7 of the Laws of 1917, pages 457-8, read as follows:

'“Sec. 36. The county courts in the several counties of this State, having a population of less than two hundred and fifty thousand inhabitants, at the May term thereof in each year, shall levy upon all real and personal property made taxable by law, a tax of not more than twenty cents, nor less than ten cents, oil the hundred dollars’ valuation as a road tax, which levy shall be collected and paid into the county treasury as other revenue, and shall be placed to the credit of the ‘county road and bridge fund.’

“Sec. 37. In addition to the levy authorized by the preceding section the county courts of the counties of this State, other than those under township organization, in their discretion may levy and collect a special tax not exceeding twenty-five cents on each ■ one hundred dollars valuation, to be used for road and bridge purposes, but for no other purposes whatever, and the same shall be known and designated as the ‘special road and bridge fund’ of the county: {Provided, however, that all that part or portion of said tax which shall arise from and be collected and paid upon any property lying and being within any road district, shall be paid into the county treasury and placed to the credit of the special road district, or other road district, from which it arose, and shall be paid out to the. respective road districts upon warrants of the county court,- in favor of the commissioners, treasurer or overseer of the district as the case may be.) Provided, further, that the part of said special road and bridge tax arising from and paid upon property not situated in any road district, special or otherwise, shall be placed to the credit of the ‘county road and bridge fund’ and be used in the construction and maintenance of roads, and may, in the discretion of the county court, be used in improving or repairing any street in any incorporated city or village in the county, if said street shall form a part of a continuous highway of said county leading through such city or village; but no part of said fund shall be used to pay the damages incident to, or costs of, establishing any road. ’ ’

It will be observed from reading Section 36, in connection with the. first proviso mentioned in Section 37 (placed in brackets by way of convenience), that all the tax which is. collected from property lying within any road district, shall be paid into the county treasury, and placed to the credit of the said district, etc. That part of Section 37, contained in the above proviso, is valid to the extent of requiring all tax collected by virtue of Section 11 of Article 10 of the Constitution, under Section 36 supra, on property within the special road district, to be applied to the credit of the latter. Said proviso, however, cannot legally apply, to the special road and bridge taxes, levied under Section 37 supra and Section.22 of Article 10 of our Constitution, adopted in 1908, which reads as follows:

“Sec. 22. In addition to taxes authorized to be levied for county purposes under and by virtue of Section 11, Article 10 of the Constitution of this State, the county court in the several counties of this State not under township organization, and the township board of directors in the several counties under township organization, may, in their discretion, levy and collect, in the same manner as state and county taxes are collected, a special tax not exceeding twenty-five cents on each $100 valuation, to be used for road and bridge purposes, but for no other purpose whatever; and the power hereby given said county courts and township boards is declared to be a discretionary power.”

Under this section of the Constitution, the county court had the right to levy, in addition.to the ten cents, described in Section 36, a special road and bridge tax of' twenty-five cents on each $100 valuation, under Section 37. Section 22 of the Constitution did not vest in the Legislature the power to compel the county court to levy said twenty-five cents or any part of same. On the contrary, the county court is given a discretionary power in respect to said matter. This, however, does not relieve the county court from levying a tax for road purposes, of not more than twenty cents, nor less than ten cents, on the $100 valuation, which is to be collected from the property in the special road district, by virtue of Section 36 supra, under Section 11 of Article 10 of our Constitution.

This whole subject was fully considered in an able and exhaustive opinion of the other Division, in Carthage Road District v. Ross, 270 Mo. 76 et seq., 192 S. W. 976, in which, the various provisions of our laws were considered, as they existed prior to 1917. We are of the opinion that the principles of law announced in the above case, apply with equal force to a reasonable construction of Sections 36 and 37 of the Laws of 1917.

It appears from the record that the county court of Bandolph County, in May, 1917, levied ten cents on the $100 valuation of all the taxable property in said county for road purposes; that by virtue of the first proviso, contained in Section 37 supra, the ten per cent collected on all of said taxable property contained in the Moberly Special Boad District was properly paid into the county treasury of said county, and belonged to said special road district. It being conceded that the above amount collected for that purpose was $4066.40, and due. demand having been made for said sum, the right of relator to enforce the payment of same by mandamus, was clearly established. We are, therefore, of the opinion, that the trial court reached an erroneous conclusion as to the disposition of this case.

We accordingly reverse and remand the cause, with directions to the trial court to set aside its judgment, and to dispose of the case in accordance with the views heretofore expressed.

White and Mosley, GO., concur.

PEE CUBIAM: — The f oregoing opinion of Bailey, C., is hereby adopted as the opinion of the court.

All of the judges concur, except Williams, P. J., who dissents, sents.


author: MOZLEY, C.

text:
    JOSEPH D. FORSYTHE, Appellant, v. SHRYACK-THOM GROCERY COMPANY.
    Division Two,
    June 4, 1920.
    1. BILL OP EXCEPTIONS: Time of Piling. Under Section 2029, Revised Statutes 1909, as amended by Laws 1911, page 139, a bill of exceptions filed on August 22nd, in a cause docketed for hearing in. the appellate court at the succeeding October term, is filed in time.
    2. NEGLIGENCE: Trespasser. A trespasser on the inside of defendant’s building at the time he fell through a hatchway is not entitled to recover damages for personal injuries sustained.
    3. -: Invitee: Pleading: Knowledge and Consent. A petition which alleges that plaintiff was working about defendant’s building with the knowledge and consent of plaintiff, but does not allege that he came upon the premises to transact business with defendant or that he was an invitee, does not state a good cause of action for damages for personal injuries sustained by him as an invitee.
    4. -■ — : Licensee. Where the undisputed evidence shows that plaintiff was on the inside of defendant’s premises at the time he fell through a dark hatchway into the basement, either purely as a licensee or as a trespasser, he cannot recover damages for his personal injuries
    Appeal from Adair Circuit Court. — Hon. Charles D. Stewart, Judge.
    Affirmed.

      Campbell & Ellison and Cooley & Murrell for appellant. •
    (1) The instructions are conflicting. Russell v. Poor, 133 Mo. App. 729; Butz v. Const Co., 137 Mo. App. 228. (2) Defendant’s Instruction 5 is erroneous. If MeGrew, the owner of the building, directed plaintiff to make repairs in a certain way or that could only be made in a certain way he was rightfully on the premises when acting on that direction, even “without the invitation or request of defendant.”

      Higbee & Mills for respondent.
    (1) The petition does not state facts sufficient to constitute an action. It in substance, alleges that plaintiff, with the knowledge and consent of the defendant, went into defendant’s building on his own business. It does not allege an invitation, or that plaintiff was even licensee. The court therefore erred in overruling defendant’s objection to the introduction of any evidence, and in submitting the case to the jury. Bender v. Weber, 250 Mo. 567; Gláser v. Rothschild, 221 Mo. 184. (2) Plaintiff’s own evidence is clear that he went into defendant’s building on his own business without even the knowledge of defendant or any of its employees; hence, the court erred in giving, plaintiff’s instructions, and in submitting the cases to the jury. (3) The court erred in giving plaintiff’s instructions; they broadened the issues. There is no invitation pleaded in the petition, nor was there any evidence of an invitation. The most that is claimed is that Charles Shryack, a clerk in the defendant’s store, permitted Otto to remove the window frames from the inside of defendant’s building. The instructions authorized a finding from this fact that defendant invited plaintiff to fill the spaces with brick and mortar from the inside. (4) There being no justification for the giving of plaintiff’s instructions, either in the petition or the evidence, error may not be predicated on the contention that defendant’s instructions are not consistent with plaintiff’s. State ex rel. v. Ellison, 176 S. W. 13.
   MOZLEY, C.

This case was certified here by the Kansas City Court of Appeals, on the ground that its opinion is in conflict with those of the Springfield Court of Appeals in State v. Bailey, 181 S. W. 605, and Planters Bank v. Phillips, 186 S. W. 752, in regard to time for filing bill of exceptions.

The petition, as set out in appellant’s abstract, states, in substance, that defendant was in possession and control of a two-story brick building in Kirksville, Missouri, carrying on in said building a wholesale grocery business, under the name of “ Shryack-Thom Grocery Co.;” that there was a hatchway or elevator opening, near the northwest corner on each floor, which was used by defendant for hoisting and lowering goods to and from said floors; that it was and became the duty of defendants to put and keep their said premises, hatchway, openings and appliances in a safe condition, and to protect from injury all persons having lawful business upon said premises; that on the — day of October, 1908, plaintiff, with the knowledge and consent of defendant, was working in and about said building and, without his fault, fell through the hatchway and opening of the first floor to the basement, and sustained the injuries complained of in petition; that the front part of said building was filled with goods, boxes and other articles; that the rear end of said room, near the elevator, was dark on account of the light being shut out by the goods and boxes aforesaid; that plaintiff was unfamiliar with said elevator, and the opening aforesaid, and was not aware of the existence and danger thereof; that it was the duty of defendant to warn ¡Dlaintiff of the dangers of said hatchway and opening, which it carelessly and negligently failed to do; that in consequence of the aforesaid wrongful acts, neglect and default of defendant, and without fault of plaintiff, he fell into and through said hatchway and opening on the first floor aforesaid, on the date aforesaid, was injured as alleged in the petition, and was damaged in the sum of $7,500, etc.

Defendant’s answer admitted its incorporation, and denied every other allegation of the petition.

The evidence, instructions and rulings of the court will be considered, as far as necessary, in the opinion.

The jury returned a verdict for defendant. Plaintiff filed his motion for a new trial, which was overruled, the cause appealed by him to the Kansas City Court of Appeals, and certified to this court, as heretofore stated. The Court of Appeals reversed and remanded the cause for a new trial in an opinion by Judge Johnson.

Exceptions,

I. It is insisted by respondent that plaintiff’s bill of exceptions was not filed within the time required by Section 2029, Revised Statutes 1909, as amended by the Laws 1911, page 139. This contention is without merit, as it was filed on August 22, 1916,' and the cause was docketed for hearing at the October term, 1916. [State ex inf. v. Sweaney, 270 Mo. l. c. 688.] The conclusion reached by the Kansas City Court of Appeals, in respect to this matter, is correct.

II. In order to pass upon the instructions, it will be necessary to ascertain and determine what relation plaintiff sustained towards defendant at the time and place of accident.

Appellant testified in chief, that: “Jack MeGrew, the owner of the building occupied by defendant, employed me prior to the day complained of to fill up the three windows in the second story of the building with brick. •. .' . I employed Walter Otto to go' and re-' move the window frames, and when he got the frames removed he notified me he was ready for my part of the work. I came in the building through the office and went down on the east side of the partition until I got back there to go upstairs, to see what was the best way to take up the mortar and do the work. When I got to the elevator I fell in the hole. . . . When* I entered the office to pass through the building to go upstairs there was a young lady bookkeeper in the office, and I think I saw Charlie Shryack there. ’ ’ On cross-examination, plaintiff testified as follows:

“When I entered the office to go in the back part of the building I never spoke to anyone in charge of the place. I never asked permission of Mr. Shryack or any other employee. I didn’t tell anybody I was going in there. I walked in there without asking leave or permission, and asked nobody’s consent. I didn’t tell them anything when I came in.0 . . . I never talked to Mr. Shryack before the injury about going into the building, nor on any other subject. Neither did I talk to any other person connected with the Shrvack-Thom Grocery. . . . I was working for Mr. MeGrew.’’

Walter Otto testified as follows: “I removed the windows and frames from the west side of the building on the second floor occupied by the Shryack-Thom Grocery. I went to the office and spoke to Charlie Shryack, and I told him I wanted to get up there and take out the frames. We went out the back door of the office and through that part of the building used as a storage place for goods. We went past the elevator and I believe went on the west side of it, and then went up the stairway to the second' floor. There was a lot of goods and boxes piled along the west side of the building, and we removed them. Some men there helped me at my request. We had to remove them to get to the windows. That was before Mr. Forsythe got hurt. ’ ’

The foregoing constituted plaintiff’s evidence, in regard to what occurred before he was injured.

M. C. Shryack testified that he was secretary - treasurer and general manager of defendant company. He detailed a conversation with plaintiff, as follows: “I asked him if he was going to stop them [the windows] up from the inside or from the outside, and 1 think he said probably from the inside or which ever is most convenient. We talked some little bit about it, and I finally told him he could not stop them up from the inside of the building, as we were using the elevator all the time and in doing the work they would bring in a lot of dirt and we couldn’t have it. I told him he couldn’t go in and he says, ‘I will,’ and I said, ‘ITow,’ and he.said, ‘I will go to Mr. McGrew about it.’ . '. . I never had any other conversation with Mr. Forsythe about 'going in there.' . . .We did not invite the public into the wareroom. ’ ’

J. B. Gordon testified that_he heard the conversation between plaintiff and Mr. Shryack; that the latter told plaintiff he could not brick the windows from the inside.

Charles Shryack testified that he was a clerk in the. store when plaintiff was hurt. Witness said he heard the conversation between plaintiff and his father. The latter said to plaintiff, “You can’t do it from the inside of the building. ’ ’

Jackson McG-rew testified: “I did not hire Mr. Forsythe to do any work for me.”

Alfred Houston, a witness for plaintiff in rebuttal, testified that about a week or ten days after plaintiff’s injury he filled up said windows with brick and did most of the work from the outside; a little inside work. He further testified: “I could have done all that work from the outside, but not as conveniently.” He did not ask permission and never said a word to anybody about going there.

The petition, in alleging plaintiff’s right to be upon defendant’s premises when injured, reads as follows: “Plaintiff further states that on the — day of October, 1908, while he was, with the knowledge and consent of defendant, working in and about said building, without fault upon his part he fell through the hatchway and opening from the first floor of said building into the basement situated thereunder and was then and there severely and permanently injured and crippled.”

Keeping in mind the foregoing facts and allegation of petition, was plaintiff, when injured, on defendant’s premises, an invitee, licensee or trespasser?

Trespasser.

III. From defendant’s viewpoint, plaintiff was a trespasser, as he was refused permission to do the work on the inside of the building, and had no right to be there. [Feeback v. Ry. Co., 167 Mo. 206; O’Donnell v. Railroad, 197 Mo. l. c. 122-3; Kelly v. Benas, 217 Mo. l. c. 13-14; Hall v. Railroad, 219 Mo. 553; Youmans v. Railroad, 143 Mo. App. 393; Ward v. Kellogg 164 Mo. App. 81; Williams v. Ry. Co., 215 S. W. 605.] If plaintiff was a trespasser when injured, he was not entitled to recover on the facts aforesaid.

Invitee.

IV. Considering the case from plaintiff’s viewpoint, leaving out of consideration the adverse evidence of defendant, was he an invitee, or licensee, at the time and nlace of accident? Tbe petition does not allege, that appellant came upon respondent’s premises to transact any business with the latter. Nor does it aver that he was there as an invitee. It simply alleges that he was working about said building with the knowledge and consent of defendant. Under the authorities hereafter cited, the petition fails to state a good cause of action under the law relating to invitees.

Aside from the foregoing, the evidence in behalf of plaintiff, without considering that of -defendant, simply 'shows that Otto, who was to fill the windows on the outside of the building in the second story with brick, went down stairs and got Charles Shryack, a clerk in the store at that time, to go with him to the second floor and help remove some of defendant’s goods, so that Otto could get to the windows. It does not appear that Charles Shryack was authorized by defendant to grant plaintiff permission to do this work on the inside, nor that he made any statement which could be construed as an invitation for plaintiff ór Otto to do this work from the inside. Plaintiff testified that after Ottó removed the window frames, he notified respondent that he was ready for the work of the latter.

Picensee

Keeping in mind the testimony of plaintiff heretofore set out, and giving his evidence a liberal construction, it simply shows at best, that he was upon the first floor of defendant’s private premises, when injured, pure-as a i‘‘ce:nsee> if not a trespasser, and was there under a state of facts which precludes a recovery upon his part, as a matter of law. In other words, he had no business with defendant, or any member of the firm. [Weneke v. M. K. & T. Ry. Co., 169 Mo. 592; Carr v. Ry. Co., 195 Mo. 214; Menteer v. Fruit Co., 240 Mo. 177; Bender v. Weber, 250 Mo. l. c. 566-7; Shaw v. Goldman, 116 Mo. App. 332; Behre v. Hemp & Co., 191 S. W. l. c. 1042-3; Shuck v. Security Realty Co., 201 S. W. l. c. 560.]

• In view of the conclusions heretofore reached, it is immaterial whether the instructions given or refused were right or wrong. The verdict of the jury was for the right party. The ruling of the Kansas City Court of Appeals is sustained as to the filing of the hill of exceptions, but we are unable to agree with said court in its holding that the cause should be reversed and remanded for a new trial.

Having reached the conclusion that plaintiff is not entitled to recover on the undisputed facts, we affirm the judgment below.

White and Bailey, GG., concur.

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

All of the judges concur.


author: WILLIAMS, P. J.

text:
    THE STATE v. FRANK EBBELER, Appellant.
    Division Two,
    June 4, 1920.
    1. OBTAINING- STOLEN GOODS: Measure of Knowledge: Instruction. In the trial of a defendant charged with having received a stolen automobile, knowing the same to have been stolen, an instruction telling the jury that “by the word ‘knowing’ that the property wás stolen is not meant absolute personal and certain knowledge on the part of the defendant that the property had been stolen, but such knowledge and information in his possession at the time he received the same as would put a reasonably prudent man, exercising ordinary care, on his guard, and would cause such a man, exercising such caution and under circumstances which you believe defendant received the property, to believe and be satisfied . the property had been stolen,” is erroneous. It authorizes a conviction though defendant may not have had guilty knowledge that the property had been stolen. The test is not what a reasonably prudent man, exercising ordinary care, would have believed and known from the circumstances attending the receipt of the stolen property, but what the defendant knew and believed. [Overruling State v. Kosky, 191 Mo. 1.]
    2. INSTRUCTION: Copied in Opinion. The fact that an instruction is copied into the statement of a reported case and not condemned by the opinion does not justify a conclusion that it was approved. No one is warranted in assuming that the court passed upon anything other than the matters1 discussed in the opinion.

      3 RECEIVING STOLEN GOODS: Intent: No Instruction. In a trial of a defendant charged with receiving stolen goods, knowing them to have been stolen, there is no need of an instruction requiring the finding of criminal intent. If the instruction requires the jury to find that the automobile had been stolen and that defendant received it knowing it had been stolen, it requires them to find the gravaman of the offense, and no further intent is required.
    Appeal from St. Louis City Circuit Court. — Hon. Charles B. Davis, Judge.
    Reversed and .remanded.

      Thos. B. Harvey for appellant.
    (1) Prejudicial error was committed in the instruction stating that the defendant had knowledge that the car was stolen if a reasonably prudent and cautious man ■ would have known, under the same circumstances, that it was stolen. Kasle v. United States, 147 C. C. A. 561; Peterson v. United States, 130 C. C. A. 400; Konda v. United States, 166 Fed. 93; Case Note, 22 LR. A. (N. S.) p. 833. (2) The instruction defining the offense of receiving was erroneous in failing to require a criminal intent. 1 Bishop’s New Cr. Law. (8 Ed.), sec. 287; Yol. 2, lb. sec. 1138; Bishop’s Stat. Crimes (3 Ed.), sec. 132; 2 Wharton Cr. Law (11 Ed.- — Kerr), pp. 1464-5; 34 Cyc. 527 (b) and 530-D; Clark Cr. Law (1 Ed.), p. 287; State v. Sweeten, 75 Mo. App. 133.

      Frank W. McAllister, Attorney-General qnd George V. Berry, Assistant Attorney-General, for respondent.
    (1) The instructions correctly declared the law. They should be judged together and not singled out and attacked without regjard to their relation to other instructions. State v. Douglas, 258 Mo. 291; State v. Weinberg, 245 Mo. 575; State v. Montgomery, 230 M,o. 671; State v. Walker, 194 Mo. 263; State v. McKenzie, 177 Mo. 715; .State v. Mathews, 98 Mo. 130. (2) Instruction 2 explained to the jury what knowledge was necessary for defendant to possess in order that he might know the goods were stolen when he received them. State v. Cohen, 254 Mo. 457; State v. Weinberg, 245 Mo. 570; State v. Sakowski, 191 Mo. 643; State v. Kosky, 191 Mo. 6. (3) Instruction No. 3 advised the jury that mere suspicion of the goods being stolen was not sufficient and told them what was necessary to put defendant upon his guard. State v. Cohen, 254 Mo. 456; State v. Kosky, 191 Mo. 1, 6; State v. Sakowski, 191 Mo. 643; State v. Smith, 37 Mo. 64.
   WILLIAMS, P. J.

Upon an indictment charging him with receiving a stolen automobile, knowing the same to have been stolen, defendant was convicted in the Circuit Court of the City of St. Louis and his punishment fixed at two years’ imprisonment.

In appellant’s brief no point is raised as to the sufficiency of the evidence. Only two errors are assigned, and they have to do with the giving of instructions. Such facts as are necessary to an understanding of the issues presented will be stated in the course of the opinion.

I. The court’s Instruction No. 2 which is attacked by appellant is as follows:

Knowledge,

“By the term ‘knowing’ that the property was stolen is not meant absolute personal and certain knowledge on the part of the defendant that the property mentioned in the indictment had been stolen, but such knowledge and information in his possession at the time he received the same, if you believe he did receive it, as would put a reasonably prudent man, exercising ordinary caution, on his guard and would cause such a man exercising such' caution, and under circumstances which you believe defendant received the property, to believe and be satisfied that the property had been stolen.

“The mere naked fact of the possession of said property hy the defendant raises no presumption that the defendant knew that said property had been stolen by another.”

It is contended that the above instruction is erroneous in that it permits a conviction, even though the defendant may not have had guilty knowledge that the property had been stolen.

It will be noticed that the instruction does permit a conviction if the facts were such as (in the opinion of the jury) would have caused a reasonably prudent person, exercising ordinary caution, to have believed that the property had been stolen at the time received.

We are inclined to the view that this point is well taken and that the learned attorney representing the 'appellant is correct in stating that “the question is not what some other person would have believed and known from the circumstances attending the receipt of the property, but what did this defendant believe and know.,r

In the case of Kasle v. United States, 147 C. C. A. 552, the Circuit Court of Appeals for the Sixth Circuit, had before it this identical question. The language used in condemning a like instruction is so clear and concise that we feel justified in quoting the following' excerpt therefrom:

“Plainly such tests as these of guilty knowledge on the part of the accused subjected him to a standard of conduct and of capacity to detect crime, which the jury might conclude to be the standard of reasonable and honest men of average intelligence when acting under circumstances like those which might be found to have existed here. The effect of such tests was to charge the accused with guilty knowledge or not upon what the jury might find would have induced belief in the mind of a man such as they were told to consider, rather than the belief that was actually created in the mind of the accused; or, at last, the accused might be condemned even if his only fault consisted in being less cautious or suspicious than honest men of average intelligence are of the acts of others. The result of the rule of the charge would be to convict a man, not because guilty, but because stupid. The issue was whether the accused had knowledge — not whether some other person would have obtained knowledge — that the goods had been stolen. The circumstances must have had that effect upon the mind of the accused, to constitute knowledge in him. The issue must be determined upon the individual test of the accused. It may well be that the tests stated in the charge are proper enough to fix civil liability ■ for the acts or omissions of a defendant, but hardly to fasten upon him an intent to commit a felony. There is some conflict in the decisions upon this subject, but we think the tests of the charge are opposed to the clear weight of authority; this may be fairly illustrated by the following: State v. Alpert, 88 Vt. 191, 204; Peterson v. United States, 213 Fed. 920, 922, 923, 130 C. C. A. 398 [C. C. A. 9]; State v. Rountree, 80 S. C. 387, 391, 22 L. R. A. (N. S.) 833; State v. Daniels, 80 S. C. 368, 371; State v. Goldman, 65 N. J. Law, 395, 397; Cohn v. People, 197 Ill. 482, 485, 64 N. E. 306; Robinson v. State, 84 Ind. 452, 456; State v. Denny, 17 N. D. 519, 525, 526; Forrester v. State, 69 Tex. Cr. 62, 152 S. W. 1041, 1042; Pickering v. United States, 2 Okl. Cr. 197, 101 Pac. 123, 124; Drummond v. State, 103 Miss. 221, 224, 60 South. 138.”

Further discussion or citation of authoxity is, we think, entirely unnecessary to establish clearly the grave error which this instruction contains, but in passing it is necessary that we refer to some former decisions' of this court which might be thought to indicate a contrary view.

In support of his contention that the instruction is proper the learned Attorney-General cites State v. Cohen, 254 Mo. 437, l. c. 457; State v. Weinberg, 245 Mo. 564, l. c. 570; State v. Sakowski, 191 Mo. 635, l. c. 643; State v. Kosky, 191 Mo. 1, l. c. 6.

A. mere inference to State v. Cohen will disclose that the case is nowise in point. Neither is the case of State v. Weinberg, supra. In the latter case the point under discussion was the sufficiency of the evidence to support the verdict. This is also txme of the case of State v. Richmond, 186 Mo. 71, which is cited in the Weinberg case. The question as to the sufficiency of the evidence to support a verdict is an entirely different proposition from the one now involved in the instruction under review. There might be sufficient evidence to sustain a conviction and yet the jury might not believe it or might not draw therefrom the necessary inference of fact which forms the basis of a conviction. The facts which the instruction in the case at bar requires to be found are at best nothing more than facts from which the ultimate and necessary fact of guilty knowledge might he inferred. The instruction relieves the jury of finding or inferring this ultimate fact which is necessary for them to find before convicting the defendant.

In the case of State v. Sakowski, supra, an instruction similar to the one under review is found copied on page 643 of that opinion, together with numerous other instructions. Why the instruction is so copied is not apparent. No point seems to have been made concerning this instruction and no discussion concerning the same is to be found in the opinion. It appears to have at one,. time been the practice in this court to copy all of the instructions in a case into the statement of facts, even though no point was raised concerning the instruction. This practice, now long; since discontinued has undoubtedly been the source of much confusion among the members of the bar, who in many instances have drawn the conclusion that since an instruction was copied into the statement and not condemned by the opinion, therefore it must have been approved by the court. There is no justification, however, for such a conclusion and no one is warranted in assuming that the court has passed upon anything other than the matters discussed in the opinion. This case then should not be considered as in point.

In the case of State v. Kosky, supra, an instruction' almost identical with the one under review is found copied on page 6 of said opinion. On page 17 of the opinion we find this language to-wit: “The instructions, as applicable to the first, count in the information, are free from objection.” It thus appears that the question did not receive specific attention or discussion at that time and we doubt very much if the question now presented was at that time called to the attention of the court. This is the only opinion of this court which we have been able to find which in any manner undertakes to approve the instruction. In so far as this case undertakes to approve the instruction under review • it is hereby expressly overruled.

irtent

II. Appellant further contends that the instructions given failed to require the finding of a criminal intent. We are unable to agxee with this contention. Instruction One required the jury to find that the automobile kftd been stolen and that defendant received the car knowing the same to have been stolen. Under the well settled rule in this State the above requirements constitute the gravamen of the crime and further intent is not required. [State v. Cohen, 254 Mo. 437, l. c. 452 and cases therein cited.]

Because of the error discussed in Paragraph I above it follows that the judgment should be reversed and the cause remanded.

It is so ordered.

All concur.