author: FOX, P. J.

text:
    THE STATE v. ARTHUR GROSSMAN, Appellant.
    Division Two,
    November 24, 1908.
    1. SUNDAY LAW: Keeping Dramshop Open on Sunday: Special Law: Constitutional. Section 3011, Revised Statutes 1899, providing that “any person having a license as a dramshop keeper, who shall keep open such dramshop, or shall sell, give away or otherwise dispose of any intoxicating liquors, on the first day of the week, commonly called Sunday, shall, upon conviction thereof, be punished,” etc., is not unconstitutional as a special law. It applies to all persons of a class, namely, all persons having dramshop licenses. It is general in its scope and universal in its application to all members of said class.
    2. -: -: Sec. 3013: Part of Penalty: Not Considered. Sections 3011 and 3013, Revised Statutes 1899, are separate and distinct sections, and section 3013 is not to be considered as a part of the penalty prescribed for a violation of section 3011. The enforcement of section 3013 is not involved in a case in which defendant was convicted for a violation of section 3011, and therefore the validity of section 3013 cannot be considered in such case.

      3. -: -: Pleading: Several Offenses: “And” and “Or:” Verdict. .Where the statute says that “any person having a license as a dramshop keeper, who shall keep open such dramshop, or shall sell, give away or otherwise dispose of, or suffer the same to be done upon or about his premises, any intoxicating liquorp, in any quantity, on the first day of the week, commonly called Sunday,” etc., the information may charge all the particular acts by the statute denounced, in one count, by the use of the conjunctive conjunction and, and the doing of any one of those acts would constitute a complete offense; but those acts cannot be connected in the pleading by the disjunctive conjunction or, nor can they be so connected in the verdict. The verdict to be responsive to the pleadings must specifically find the defendant guilty of one of the particular offenses. It cannot say that he is guilty of one or of another.
    4. -: -: Verdict: Not Responsive to Pleading. The verdict read: “We, the jury, find the defendant guilty of selling or otherwise disposing of liquor on Sunday, as charged in the information,” etc. Held, not to be responsive to the information. If the verdict had found the defendant guilty as charged in the information, or had found him guilty of one of the acts charged therein, it would have been sufficient, but as it is it does not with definiteness or with certainty find him guilty of any offense.
    Transferred from St. Louis Court of Appeals.
    Reversed and remanded.

      Charles Fensky for appellant.
    (1) The motion to qnash and demurrer to the information should have been sustained, (a) The first count of the information does not state facts sufficient to constitute an offense, (b) Section 3011, Revised Statutes 1899, is unconstitutional, being in conflict with section 53, article 4, also section 30, article 2, Constitution of Missouri; also section 1, 14th amendment, Constitution of the United States. The general law applicable to all persons selling intoxicating liquor is section 2243, Revised Statutes 1899'. Section 3013 repeals the following portion of the penalty provision of section 3011: “And shall not again be allowed to obtain a license or keep a dramshop for a term of two years thereafter;” and substitutes all of the penalties contained in section 3013 as a part of section 3011 afore-' said. Under section 3013 no dramshop-keeper can have in his employ in his business any dramshop-keeper whose license as such has been revoked or who has been convicted of selling, giving away, or otherwise disposing of intoxicating liquors upon or about his premises, or suffers the same to be done on Sunday. This deprives a dramshop-keeper, because he has been convicted or has had his license revoked for a violation of any provision of the dramshop act, which includes selling, or otherwise disposing of liquors on Sunday, from being employed in a lawful business. A dram-shop, when licensed, is a lawful business. This section is as much a part of section 3011 as if it was written therein. It is a penalty which the law provides in case of conviction for violation of any provisions of section 3011. And when the constitutionality of said section is attacked it includes all of the penalties incident thereto or a part thereof. A law such as section 3013, which prohibits a man from being employed in a lawful business, because he has been convicted of” violating some provision of the dramshop law, is vicious as well as bad law. One of the fundamental rights of the Constitution of the State of Missouri and of the .United States, is the right to follow any lawful employment in a lawful way, or, in other words, the right to choose one’s own pursuit, subject to constitutional regulations. Live Stock Ass’n v. Crescent City Co., 1 Abb. (U. S.) 388; In re Parrot, 6 Sawyer (U. S.) 349; Civil Rights Cases, 109 U. S. 3; United States v. Washington, 4 Woods (U. S. Cir.) 349; Cully v. Railroad, 1 Hughes (U. S. Cir.) 536; Portland v. Bangor, 65 Me. 120; Missouri v. Lewis, 101 U. S. 162; St. Louis v. Roche, 128 Mo. 547; Ex parte Smith, 135 Mo. 229; State v. Tie & Timber Co., 181 Mo. 536. (2) Defendant in the first count of the information was charged with selling, giving away, and otherwise disposing of intoxicating liquors in and about the premises wherein said dramshop was located. In the second count he was charged with keeping open his dramshop and permitting persons to enter and depart therefrom. Defendant was by the court’s instruction acquitted on the charge of keeping open his dramshop and permitting persons to enter and depart therefrom. A licensed dramshop-keeper is the only one who can sell or suffer to be sold, or otherwise dispose of, intoxicating liquors in a dramshop on Sunday; he is the only one that can keep open or suffer to be kept open a dram-shop on Sunday, and when he has his dramshop closed, and he does not sell or otherwise dispose of, or suffer to be sold or otherwise disposed of, on Sunday within his dramshop, intoxicating liquors, there is no violation of section 3011. If a dramshop-keeper keeps his dramshop closed and sells or otherwise disposes of intoxicating liquors on Sunday outside of his dram-shop, he sells without a license because his license does not give him a right to sell intoxicating liquors on Sunday. If any other person sells intoxicating liquors on Sunday upon his premises, he also sells intoxicating liquors without a license. A law which singles out the person and premises of one class of unlicensed liquor sellers (licensed dramshop-keeper) and provides that if the offense is committed upon or about the premises of such' class, they shall be punished by a greater fine than if the same offense is committed by the other branch of unlicensed liquor sellers upon their premises, is class legislation. State v. Walsh, 136 Mo. 405; State v. G-ranneman, 132 Mo. 326; State v. Thomas, 138 Mo. 95; State v. Burchardt, 144 Mo. 84; Cooley on Const. Lim. (6 Ed.), 481-483; State v. Julow, 1291 Mo. 176; State v. Walsh, 136 Mo. 406; State v. Hill, 147 Mo. 67; State v. Roller, 77 Mo. 128. (3) The first count of the information is duplicitous and charges more than one offense. The first count of said information charged four distinct offenses: (a) Selling intoxicating liquors on the 27th day of August, 1905, being Sunday, (b) Selling intoxicating liquors in and about the premises where said dramshop is located, on August 27, 1905, being Sunday, (c) Giving away intoxicating liquors on and about his premises on August 27, 1905, being Sunday, (d) And did dispose of intoxicating liquors in and about said premises on August' 27, 1905, being Sunday. State v. Meagher, 114 Mo. App. 266; State v. Ambs, 20 Mo. 215; State v. Jones, 39 Yt. 70; Harvey v. State, 80 Ind. 142; State v. Bunnell, 77 Mo. 575. (4) The verdict of the jury is not responsive to the issues made by the information, nor does it state what defendant was convicted of, whether defendant sold, gave away, loaned or traded a suit of clothes for a pint of liquor, or in what manner one Bradshaw got the liquor, cannot be known from the verdict. State v. Pollock, 105 Mo. App. 273; State v. DeWitt, 186 Mo. 70;'State v. Bedell, 35 Mo. App. 551; State v. Duesting, 33 Minn. 102.

      Herbert 8. Hadley, Attorney-General, and Frank Blake, Assistant Attorney-General, for the State.
    (1) Section 3011, Revised Statutes 1899, is constitutional. State v. Ambs, 20 Mo. 214. (2) The information is drawn in the language of the statute and is sufficient. State v. Meagher, 49 Mo. App. 571; State v. Braun, 83 Mo. 480; State v. Roehm, 61 Mo. 82; State v. Sauerburger, 64 Mo. App. 129. (3) Appellant is in no position to challenge the constitutionality of section 3013, Revised Statutes 1899, because (1) he is not being prosecuted under section 3013, and (2) he did not raise the constitutionality of said section in the lower court. It will be time enough to consider the constitutionality of section 3013 when the penalties thereof are sought to he enforced against the appellant. (4) It is not a difficult matter to reconcile section 2243, Revised Statutes 1899, and section 3011, Revised Statutes 1899'. There is no inconsistency between them. Where the dram or tippling shop has no license, prosecution is to be made under section 2243, Revised Statutes 1899, if it is kept open on Sunday. If the dramshop is licensed, it is proper to proceed under section 3011, Revised Statutes 1899'. State v. Meagher, 114 Mo. App. 270; State v. Heckler, 81 Mo. 417; State v. Kurtz, 64 Mo. App. 123; State v. Barnett, 111 Mo. App. 688. (5) Said section 3011 does not impinge the class legislation clause, section 53, article 4 of the State Constitution. The section applies to all persons “as a class” having dramshop licenses. No exceptions are made. It is general in its scope, and universal in its application so far as licensed dramshop-keepers are concerned, and is, therefore, a general law. State v. Eitchman, 189 Mo. 648; O’Con-nor v. Railroad, 198 Mo. 622; Taylor v. Railroad, 198 Mo. 715. (6) Section 3011 provides for the punishment of but one offense, which can be perpetrated by keeping the dramshop open on Sunday, or by selling, giving away or otherwise disposing of liquor on said day, or suffering the same to be done. State v. Fancher, 71 Mo. 460; State v. Freeze, 30 Mo. App>. 351.
   FOX, P. J.

This is an appeal by the defendant from a judgment of conviction in the St. Louis-Court of Criminal Correction convicting him as a dramshop keeper of selling, giving away and otherwise disposing of intoxicating liquors upon or about his premises wherein such dramshop is located, on the first day of the week commonly called Sunday.

On August 28, 1905, the assistant prosecuting attorney filed in the St. Louis Court of Criminal Correction an information containing two counts against the defendant. The first count charged that the defendant, having a license as a dramshop keeper, did sell, give away and dispose of in and about the premises wherein said dramshop is located, one pint of whiskey to one Joe Bradshaw on Sunday. The second count charged that defendant kept open his dram-shop upon said day. Both offenses were charged to have been committed on August 27, 1905. On August 29, 1905, the defendant entered his plea of not guilty. On September 12th, there was interposed to the information filed, a demurrer, as well as a motion to .quash, alleging, among other things, the unconstitutionality of section 3011, under which this prosecution was had. These motions were overruled. The defendant was put upon his trial before a jury upon October 12, 1905, which trial resulted in a verdict of guilty upon the first count, and the assessment of his punishment at a fine of $75. There was a nolle prosequi entered as to the second count.

Timely motions for new trial and in arrest of judgment were filed and overruled, and an appeal was granted to the St. Louis Court of Appeals. Upon December 3, 1907, the St. Louis Court of Appeals, for the reason that a constitutional question was involved, certified the case to this court, on the ground that they were without jurisdiction to determine that question. The bill of exceptions does not preserve any of the evidence introduced at the trial. There was a judgment duly entered for the recovery of the $75, and from this judgment this appeal is prosecuted, and the record is now before us for consideration.

OPINION.

The first proposition to which our attention is directed is the earnest insistence upon the part of learned counsel for appellant that section 3011, Revised Statutes 1899, is unconstitutional and void. Section 3011, upon which this judgment is predicated, provides : “Any person having a license as a dramshop keeper, who shall keep open such dramshop, or shall sell, give away or otherwise dispose of, or suffer the same to be done upon or about his premises, any intoxicating liquors, in any quantity, on the first day of the week, commonly called Sunday, or upon the day of any general election in this State, shall, upon conviction thereof, be punished by a fine of not less than fifty nor more than two hundred dollars, shall forfeit such license, and shall not again be allowed to obtain a license to keep a dramshop for the term of two years next thereafter.”

It is sufficient to say upon this proposition that in our opinion there is no merit in the contention of appellant that this section is unconstitutional and void. It in no way impinges upon section 53, article 4, of the State Constitution, whicli prohibits class legislation. This section applies to all persons of a class having dramshop licenses. No exceptions are made. It is general in its scope and universal in its application, so far as licensed dramshop keepers are concerned, and is therefore, under the uniform decisions of this court, to be classed as a general law. [State v. Etchman, 189 Mo. 648; O’Connor v. Railroad, 198 Mo. 622; Taylor v. Railroad, 198 Mo. 715.]

This section has been upon the statute for many years in this State, and many judgments of conviction for the violation of its provisions have been rendered by the courts of this State and affirmed by the appellate courts. In our opinion it is not an unreasonable regulation of the liquor traffic, as applicable to those who have procured the privilege of engaging in the business of that nature and character. In our opinion this section is constitutional and valid.

Counsel for appellant devotes a great deal of attention in his able and exhaustive brief in this case to section 3013, Revised Statutes 1899. It is insisted by counsel for appellant that section 3013 should be construed as a part of the penalty for a violation of section 3011. It is only necessary to say of this insistence that section 3011 and section 3013 are separate and distinct sections, and in the case now before us the enforcement of the provisions of section 3013 is not involved. When the provisions of section 3013 are invoked and sought to be enforced, the person who feels aggrieved by reason of the enforcement of such provisions will have an opportunity of having his day in court, but that section is not now before us, and there is no legal, valid reason why we should go outside of the record to determine the constitutionality of that particular section.

II.

The most serious proposition disclosed by the record now before us is the one in which the point is made that the verdict as returned by the jury is not responsive to the issues presented in the trial court, and is so uncertain and indefinite as renders it insufficient to support the judgment. The verdict of the jury was in the following form:

“State of Missouri, vs. “Arthur Grossman.
“We, the jury in the above-entitled cause, find the defendant guilty of selling or otherwise disposing of liquor on Sunday, as charged in the information, and assess his punishment at a fine of $75.
“E. F. Jones, Foreman.” •

Section 3011, Revised Statutes 1899', upon which the information and the verdict as returned by the jury are predicated, makes it an offense for any person having a license as a dramshop' keeper to' sell, give away or otherwise dispose of, or suffer the same to he done on or about his premises, any intoxicating liquors, in any quantity, on the first day of the week, commonly called Sunday. Under the provisions of this section it is well settled in this State that the pleader may in one count charge all of the facts embraced in that section, providing that he connects them by the conjunctive conjunction and. It is equally well settled that it is bad pleading to charge all of the acts embrabed in the section by the use of the disjunctive conjunction or. These adjudications are based upon the theory that a statute which forbids several things in the alternative is usually considered as creating but one offense. As is said by Mr. Bishop, “where, for instance, a statute forbids several things in the alternative, it is usually considered as creating but one offense; and the indictment may charge the defendant with the commission of all the acts, using the conjunction and where the statute uses the disjunctive or; or, on the other hand, the indictment may contain but one or two of the things, at the election of the pleader.” [1 Bishop’s Criminal Proc. (1 Ed.), sec. 191.]

In Stevens v. Commonwealth, 6 Metc. 241, the court had under consideration a statute which prescribed the punishment of “every person who shall buy, receive, or aid in the concealment of any stolen goods, knowing the same to have been stolen.” It was held in that case that there was but one offense mentioned by the statute, although that offense might be committed in one of three modes, by buying, receiving or aiding in the concealment of stolen goods. So it may be said as to section 3011. Its provisions are intended as a regulation of the liquor traffic by prohibiting the pursuit of that traffic on the first day of the week commonly called Sunday. The offense denounced by that statute may be committed by any of the methods designated in the statute, either by keeping open the dramshop on Sunday, or by selling, giving away or otherwise disposing of intoxicating liquors, or suffering the same to be done upon or about the premises where the dramshop is located, but the doing of either one of the particular acts would of itself alone make a complete offense. On the other hand, if all of the acts denounced by section 3011 were charged in an information, and in charging the commission of such acts the disjunctive conjunction or was used, the pleading would be held insufficient on the ground of uncertainty and indefiniteness, for the reason that the defendant charged with the commission of such acts would be unable to tell as to which one of the acts charged he would be required to meet upon the trial of the cause. It may be said as to verdicts in criminal cases that the law is well settled that they must be reasonably definite and certain and responsive to the issues presented in the cause.

In State v. DeWitt, 186 Mo. 61, the authorities were all carefully reviewed by this court, and the following conclusion was announced, after a full consideration of all the authorities, speaking through Judge Gantt: “Whatever the practice may be in other states, it is the settled law of Missouri that if a verdict, which is a part of the record, is not responsive to the issue or is so uncertain and indefinite that it will not support the judgment, this defect may be reached by a motion in arrest of judgment.” Citing Webber v. State, 10 Mo. 4; Davidson v. Peck, 4 Mo. 438; Griffin v. Samuel, 6 Mo. 50.

The verdict in this cause, measured by the authorities cited in State v. DeWitt, supra, is manifestly insufficient' to support the judgment. If the jury had found the defendant guilty as charged in the information, or had returned a verdict finding him guilty of the commission of one of the acts charged in the information, it would have been clearly sufficient, but this verdict fails to find definitely or with certainty the defendant guilty of the commission of any acts which would constitute an offense. It finds the defendant guilty of “selling or otherwise disposing of liquor on Sunday.” The verdict in that form is not a finding that he sold whiskey on Sunday, or that he gave it away or otherwise disposed of it on Sunday. It is simply a verdict which says we find the defendant guilty of either selling on Sunday or otherwise disposing of .liquor on that day, and leaves it to a mere conjecture as to which act the defendant is found guilty of committing..

While it is with reluctance that this court feels constrained to disturb the judgment of the trial court by reason of the insufficiency of the verdict returned, yet if juries are required under the law to return their findings in a reasonably definite and certain manner which are responsive to the issues presented, and we are to longer follow the well-settled rules of law applicable to the form of verdicts, then we see no escape from the conclusion that this verdict is indefinite, uncertain and not responsive to the issues presented, and the motion in arrest of judgment filed by the defendant in the trial court should have been sustained. Entertaining these views it results that the judgment of the trial court should be reversed and the cause remanded, and it is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT. J.

license: Public Domain

text:
    THE STATE v. J. B. SMITH, Appellant.
    Division Two,
    November 24, 1908.
    1. HOMICIDE: Defense of Property: Trespasser: Instruction. Where there is no room under defendant’s evidence for the application of the doctrine that defendant shot and killed deceased in the defense of his property rights, and their relative legal rights to the lot where the killing occurred are not an' issue before the jury, and shed no light upon the solution of the question as to what actually occurred at the immediate time of the killing, it is not error to refuse an instruction for defendant to the effect that defendant had the right to use the lot and to repair the gate and was not a trespasser, and deceased had no right to drive him away, and if he attempted to do so defendant had the right to refuse to go, and if necessary to resist any force, etc. Where defendant’s defense is that he shot deceased in the exercise of the right • of self-defense against an illegal assault on his person, it would be to inject into the case a question foreign to the issues to instruct the jury that defendant had the right to shoot deceased in defense of his property.
    2. JUROR: Formed and Expressed Opinion. Where a witness testified that prior to the trial a juror was at her house and said as he started away that he was going to help hang defendant, and another witness testified that he had a conversation with the juror prior to the1 trial and told him the facts of the case as he understood them and that the juror expressed the opinion that defendant ought to be convicted, and the juror positively denied both statements, and the matter was heard by the trial court and this ground for a new trial overruled, this court will not hold that there was any such abuse of judicial discretion as authorizes a reversal of the judgment.
    Appeal from Shannon Circuit Court. — lion. W. N. Evans, Judge.
    Affirmed.

      James Orchard, S. A. Cunningham, J. B. Searcy and L. M. Searcy for appellant.
    (1) Under the testimony in this case it is undisputed that defendant reserved the right to pass through the lot at deceased’s house in going to and from the field to his corn that he was cultivating. He also reserved the right to use the barn or stables in said lot. That being so, the court should have given the instruction. Under the reservation the lot became his home and premises, which he had the right to go on to repair and do such things as were necessary, without being molested. State v. Pollard, 139 Mo. 220; State v. Kennade, 121 Mo. 405. (2) Defendant was protecting his own property at the time he shot and killed Blackburn. He had gone to the place where the killing was done to repair a gate that was down, or had been down, and which led into his crop, where he had a right to be. Blackburn approached him in a threatening manner and defendant shot and killed him. Under the facts in the case he was., only guilty of manslaughter in the fourth degree. State v. Mathews, 98 Mo. 119. (3) The court erred in riot granting a new trial, for the reason that U. B. Summers had formed and expressed an opinion before he was qualified on the jury.

      Herbert 8. Hadley, Attorney-General, and F. G. Ferris and N. T. Gentry, Assistant Attorneys-General, for the State.
    (1) The general doctrine as to the defense of one’s castle is not applicable as to the defense of rights of property, such as defendant claimed to have in this case. 67 L. R. A. 538, note C. Defendant admitted the killing and justified it upon the ground of self-defense. Self-defense was the issue of fact in the case. People v. Conkling, 111 Cal. 621. The instruction on self-defense, given by the court, fully set forth the law of self-defense and clearly accorded to defendant all the rights he would have possessed on premises not in the possession of the deceased; hence, defendant was not prejudiced by the refusal of the court to give the said instruction asked. Furthermore, the said instruction given in no manner limited defendant’s right of self-defense by reason of the fact that the homicide occurred upon premises occupied by the deceased. It even told the jury that defendant “had a right to stand his ground” in his self-defense. The said instruction given was sufficient, and an instruction on defendant’s right to use the lot was unnecessary and improper under the evidence. State v. Zorn, 202 Mo. 43; State v. Hargraves, 188 Mo. 351; People v. Conkling, 111 Cal. 616; Com. v. Bullock, 67 S. W. 992. (2) Defendant contends that he was protecting his own property, and that Blackburn was approaching him in a threatening manner at the time he killed Blackburn; and that, therefore, defendant was guilty only of manslaughter in the fourth degree. By contending that defendant was guilty of manslaughter in the fourth degree, but of no other offense, defendant takes the position that while defendant was not excusable or justifiable in shooting Blackburn, yet Black-bum’s acts, in respect to defendant’s property, and in respect to defendant in connection therewith, were such as to engender in defendant that hot blood and passion which temporarily dethroned his reason and mitigated his offense to the low grade of manslaughter in the fourth degree. There was no evidence in the case tending to prove that defendant was protecting his own property at the time of the homicide, or that deceased gave defendant reasonable provocation by forcible trespass upon defendant’s property, either actual or threatened. The evidence abundantly sup>ported the verdict of murder in the second degree. (3) In the motion to set aside the verdict and grant a new trial, it is alleged that one of the jurors, U. B. Summers, had expressed opinions adverse to defendant before qualifying as a juror. When there is evidence pro and con in a case of this sort, it would require a strong case, one showing a flagrant abuse of discretion on the part of the trial judge, to warrant the Supreme Court in interfering and setting aside a verdict. State v. Gordon, 191 Mo. 133; State v. Cushenberry, 157 Mo. 168; State v. Cook, 87 Mo. 40; State v. Howell, 117 Mo. 342; State v. Soper, 148 Mo. 217.
   GANTT. J.

This is a prosecution commenced on the 24th day of September, 1905-, by the prosecuting attorney of Shannon county, before a justice of the peace, charging the defendant with having feloniously, willfully, deliberately, premeditatedly and with malice aforethought shot and killed John W. Blackburn at said county on the 24th day of September, 1905'.

A warrant issued and the defendant was duly arrested. The preliminary trial was set for October 2, 1905, and on that day the defendant waived examination and was admitted to bail in the sum of five thousand dollars to appear at the regular March term, 1906, of the circuit court of said county. The case was continued at the March term to the September term, 1906, and at the September term, 1906, the prosecuting attorney filed an amended information charging the defendant with murder in the first degree in the killing of said Blackburn. As the information is in all respects sufficient under repeated adjudications of this court, it is unnecessary to set it forth at length. At the same term of the court, the prosecuting attorney elected to prosecute for murder in the second degree, and thereupon, the defendant was duly arraigned and entered his plea of not guilty and the trial was had before a jury, who returned a verdict of guilty of murder in the second degree and assessed the defendant’s punishment at eighteen years’ imprisonment in the penitentiary. Within four days thereafter the defendant filed his motion for new trial, which was overruled by the court, and the defendant saved his exceptions. In due time the defendant prayed and was granted an appeal to the Supreme Court. At the October term, 1907, of this court, it appeared that the circuit court had failed to enter a judgment and sentence and thereupon, upon the application of the Attorney-General, the record was remitted to the circuit court to cause the defendant to be brought before it and sentenced in accordance with the verdict of the jury. And it appears from the record now before us that on the 12th day of March, 1908, the circuit court duly passed sentence upon the defendant in accordance with the verdict and on the same day an appeal was granted to this court from the judgment and sentence.

The testimony on the part of the State tends to show that on September 24, 1905, the defendant and the deceased, Blackburn, were each cultivating land on the farm of Mrs. Elizabeth Chilton in Shannon county. It would seem that the defendant had leased the land from Mrs. Chilton and afterwards rented the land which the deceased Blackburn occupied to the said Blackburn, and moved out of one of the houses on the premises and gave Blackburn the right to occupy the house and land which he was to cultivate. On the premises rented to the deceased, there was a horse lot, a barn or stable, which was used in connection with the house that the deceased occupied. This horse lot was from twenty-five to fifty yards from the house which the deceased occupied. There was a passageway or wagon road through this horse lot, one gate leading from the public road into the lot, and another leading out on the other side of the lot into the field, in which both the defendant Smith and the deceased Blackburn had their crops planted. There was evidence on the part of the defendant that when he rented to the deceased, defendant reserved the right to gO' through the lot to his crop and the right to occasionally use the stable.

Mrs. Laura Bell, who was the wife of the deceased Blackburn at the time he was killed, but prior to the giving of her testimony in this case had become the wife of one Bell, testified that she and her husband, the deceased, on the day of the killing, had been on a visit to a neighbor’s house, and as they approached their home on the said rented premises the deceased Blackburn went on ahead of her, and turned up a road that went to the barn. The defendant Smith and one John Ipock were in the bam lot; as the deceased approached the fence near where the defendant stood, deceased put down a kettle he was carrying in his hand, and defendant threw a hammer at him, and started back. Defendant then drew a revolver from his pocket and shot at Blackburn, whereupon Black-bum said, “Don’t shoot me, Joe, don’t shoot,” and turned and got over the fence just below the gate from the defendant. Thereupon the deceased started and was about half stooped over when the defendant fired two shots and Blackburn fell dead.

A daughter of the deceased, Bertha Blackburn, about fifteen years old, testified that her father was killed on Sunday. That while her parents were visiting a neighbor, the defendant Smith and John Ipock came to her father’s home to nail upi a fence or fix a gate. Witness had. been getting out pine knots to start a fire and saw her father and mother coming up the road. She saw her father turn towards the defendant and she called to him, as she said she had an idea they were going to have a quarrel. Her father dropped his kettle by his side and said to defendant, “Smith who ordered you on my premises'?” and defendant said he ordered himself. Thereupon her father, the deceased, told him that if he had any business down the.road he had better be going. When defendant fired the first time, the deceased was on the outside of the fence, but then jumped over the fence and as he did so defendant’s pistol snapped at him. Thereupon the deceased said, “Joe, don’t shoot me.”

John Ipoek testified that he was at the defendant’s farm with the defendant on Sunday, the day Blackburn was killed. He and the defendant passed the house in which Blackburn lived and saw a calf in Smith’s corn, and they later returned there with tools and a plank to fix a gate. As they were finishing the repairs on the gate the deceased approached, and after saluting Ipoek, said to the defendant, “Joe, who gave you orders to come on my premises!” Defendant replied, “By Gr— D— I took it.” Deceased then said, “If you have any business you had better be going.” Deceased then reached down towards the ground, but witness did not know whether he was setting the vessel down or not. Deceased then stepped closer and as he did so defendant threw the hammer at him, deceased falling back on the ground and the defendant getting back of the gate, which swung east. When defendant came back he had his pistol in his hand and Blackburn said, “Joe, don’t shoot,” and the witness said: “No, I do not want to see any of that while I am here.” The defendant thereupon said to the deceased, “Now beg. You went on the straw stack and watched for me.” Deceased replied: “Joe, that is a lie, I never.” Defendant then shot, but seemed to miss Blackburn, who got over the fence and started; at the' same time defendant snapped his pistol, and then fired the fatal shot. This witness did not see the deceased have any rock or weapon in his hand. The testimony further developed that the deceased fell with his head about twelve feet from the post at which the gate opened. The ball which inflicted the fatal wound entered the temple of the deceased, passed nearly straight through according to one witness, and according to two other witnesses ranged downward as though the deceased was in a stooping position when he was shot.

On the part of the defendant the evidence tended to prove that the crops which had been planted by the deceased and the defendant on this farm had been laid by, and there was evidence tending to show that the deceased had left the fence down two or three times between the lot and Smith’s crop: of corn. On the day of the shooting, as the defendant Smith and Ipock passed the residence of the deceased in order to go to the defendant’s home, they saw the lot gate leading from the lot into the field where Smith’s crop was, down, and a calf was in the corn, and the defendant called to deceased’s children asking where their father was, and they told him that he and their mother were on a visit to one Donohue. Thereupon the defendant told them to tell their father that the calf was in the corn and that the hogs had been in there eating up the down corn, and to tell their father to keep' them out. When the defendant reached home that day he requested Ipock to go back up! there with him and assist him in putting up> the gate. He took a plank and saw and a hammer to repair the gate. When they arrived there the gate had been set up, but the top hinge had been broken off. The defendant went to work to repair the gate and finished it up. About the time he was through repairing the gate, the deceased came from the south to where they were at the gate. After having spoken to the defendant as above narrated and having told him that if he had any business down the road he had better be going, according to the defendant’s testimony, the deceased then- sat down the bucket or kettle which he had in his hand, and picked up á rock, and as he raised up from the ground, drew his right hand back as if he were going to throw; that thereupon the defendant threw the hammer at him and missed Mm; that the deceased then jumped inside of the fence to the side where the defendant was; defendant then says he retreated behind the gate, pulled his pistol and fired and then snapped it, and deceased then said, “Don’t shoot me, Joe,” and defendant then says he lowered Ms pistol and made no attempt to shoot and about that time the deceased got over the fence and made an effort to go around the gate and drew his hand back as if he was going to throw, as defendant thought, a rock. And then defendant shot again and inflicted the wound which killed the deceased. There was also evidence of threats against the defendant on the part of the deceased, some of which had not been communicated.

In rebuttal Mrs. Blackburn testified that her husband had no weapon of any kind at the time he was killed, and at no time during the difficulty raised his arm in a position to throw. Bertha Blackburn testified that at no time during the affair did she see that her father had any weapon or rock and he did not throw or make any other demonstration.

The court in its instructions defined murder in the second degree and the meaning of the words, “willfully, premeditatedly, malice and malice aforethought” as they have often been defined with the approval of this court, and no exception is taken to the action of the court in tMs respect and we discover no ground for complaint in that respect.

The court also instructed on the presumption of innocence, and reasonable doubt, and on the right of self-defense. Also' instructed the jury that they might take into consideration any threats the deceased had made against the defendant as affecting the right of the defendant to act on less appearance of danger than if such threats had not been made and communicated. The court also instructed the jury on manslaughter in the fourth degree. The defendant requested the court to instruct the jury as follows:

“The court instructs the jury that under the evidence in this case, the defendant had the right to use the lot in question and had the right to repair the gate and was not a trespasser and the deceased had no right to drive him away, and if he attempted to do so, defendant had the right to refuse to' go and if necessary to resist any force that might be used to expel him from the premises, even to the taking of the life of the deceased if it became necessary.” Which instruction the court refused and the defendant assigns this action of the court as error.

I. The principal contention is that the circuit court refused the instruction requested by defendant.

We do not desire to base our ruling upon the ground that the defendant’s own testimony only authorized him to use the lot as a passway and, made no mention of a duty upon his part to repair the gate. It is perfectly obvious to us that the rights of defendant and deceased must be adjudged upon the facts in evidence just prior to and at the time of the homicide. As said in People v. Conkling, 111 Cal. l. c. 621, ‘ ‘ The relative legal rights of the parties as to the road were not an issue before the jury, for they shed no light upon the solution of the question as to what actually occurred at the immediate time of the killing.” So we say in this case, under the defendant’s own evidence there is no room for the application of the doctrine that he shot and killed the deceased in the defense of his property rights. According to his testimony he shot and killed the deceased in the exercise of a right of self-defense, the defense of his own person against the illegal assault on the part of the deceased. His testimony tended to prove this defense, and the court gave him a full and ample instruction on the right of self-defense. His evidence tended to- sbow that the deceased without legal provocation had stooped and picked np a rock and either threw it at him or was in the act of throwing it at him when he shot and killed him. The court in view of this testimony not only instructed on the law of self-defense hut instructed for manslaughter in the fourth degree, and an instruction such as requested by the defendant in this case would have been an invitation to the jury to have considered a matter entirely foreign to the real issue before them.

Counsel have called our attention to the cases of State v. Kennade, 121 Mo. 405, and State v. Pollard, 139 Mo. 220. Those cases announce the familiar doctrine that the owner of a house and in the possession thereof has a right to protect it and! himself in it against all unlawful trespassers against him. But those cases have no application to the facts of this case. This record discloses that the circuit court gave the defendant the full benefit of an instruction on the law of self-defense and in no manner limited his right of self-defense by reason of the fact that the homicide occurred on the premises of the deceased. As was said in State v. Hargraves, 188 Mo. l. c. 350, “It clearly appears from the testimony [of the defendant] .that the assault made by the defendant upon the deceased was in repelling or resisting an assault made by the deceased upon him. The facts in this case do not present that character of struggle where the assault is made in protection or defense of his home or premises, nor in an effort to eject a trespasser from the premises of another, in which the party would have the right to use all the necessary force to accomplish his purpose.” We think the court correctly refused to give this instruction, especially as it had fully covered all the issues of law arising upon the evidence in the case. And these observations apply with equal force to the second contention of the defendant in his brief, that in killing Blackburn under the circumstances, he was only guilty of manslaughter in the fourth degree. His own evidence, as well as all of the other evidence, refutes the theory that he was acting in defense of property. State v. Matthews, 148 Mo. 185, relied upon by the defendant, was wholly unlike in its facts to the case now under review.

II. It is insisted that the court erred in not granting a new trial for the reason that U. B. Summers had formed and expressed an opinion before he was qualified on the jury. In support of this ground the defendant filed the affidavit of Lucinda Burris, to the effect that the juror, Summers, was at her residence on Sunday, the 9th of September, 1906, and that as he started off said he was going to help hang Joe Smith. One Honeycutt testified that he had a conversation with Summers and told him the facts of the case as he understood them and that Summers expressed the opinion that the defendant ought to be convicted. On the other hand, the juror was called as a witness and was examined fully as to both of his alleged statements and denied positively both of the statements and the matter was heard by the trial court and this ground for new trial was overruled. "We have often held that where there is evidence pro and con in a case of this sort, the evidence should be such as to show a clear abuse of discretion on the part of the trial judge in order to warrant this court in interfering and setting aside a verdict. [State v. Gordon, 191 Mo. 133; State v. Howell, 117 Mo. 342; State v. Cook, 84 Mo. 40.]

Upon a review of the whole record, it appears to us that there was ample evidence to justify the verdict of the jury, and we have been unable to discover any reversible error in the record, and accordingly the judgment is affirmed.

Fox, P. J., and Burgess, J., concur.


author: BURGESS, J.

text:
    THE STATE v. JAMES, Alias JIM, SCOTT, Appellant.
    Division Two,
    November 24, 1908.
    1. NEW TRIAL: Assignments: Sufficient Motion. The motion for a new trial must so definitely set out the reasons therefor as to direct the attention of the trial court to the precise error of which complaint is made. And no reason not so specified can be urged in support of the motion.
    2. -: -: Against the Law. A simple assignment in the motion for a new trial that “the verdict is against the law” does not specifically indicate wherein the verdict infringes upon the law, ,and hence neither the trial court nor the appellate court will consider such an assignment as a sufficient ground for a new trial.
    3. -: -: Against the Evidence. It is no ground for setting aside the verdict that it may be “against the evidence.” It is only where there is no substantial evidence to support the verdict that the appellate court will reverse the judgment on the ground that the evidence was insufficient to support the verdict.
    4. -: -: Fraud at Elections: Sufficient Evidence. There was substantial evidence to support the verdict in this case, and there' being no other assignment of error in the motion for a new trial than that “the verdict is against the law,” and that “the verdict is against the evidence,” the court declines to interfere with the verdict.
    Appeal from St. Louis City Circuit Court. — How. Hitgo Muench, Judge.
    Affirmed.

      Thos. J. J. Stanton for appellant.
    (1) The State wholly failed to show that John Scott of 109 South Twentieth street was a duly qualified elector of the sixth precinct of the Fourteenth ward. (2) The court erred in giving to the jury of its own motion instruction 1, in that it told the jury that if the name of “John Scott” duly appeared upon the official registration books of the sixth precinct of the Fourteenth ward, that fact alone constituted him a duly qualified and registered elector and voter, without further proof upon the part of the State.

      Herbert 8. Hadley, Attorney-General, and F. G. Ferris, Assistant Attorney-General, for the State.
    (1) The instructions given by the trial court cover all the questions of law arising in the case, which were necessary for the information of the jury in giving their verdict, and were sufficient. State v. Fielder, 210 Mo. 188. (2) The evidence in this case amply supports every allegation of the information, and fully justifies the verdict. No error appearing of record in the trial of the case, the judgment of the trial court should be affirmed.
   BURGESS, J.

At the June term, 1907, of the circuit court of the city of St. Louis, under an information filed by the assistant circuit attorney, the defendant was found guilty of attempted fraudulent voting in a name not his own, and his punishment assessed at imprisonment in the penitentiary for three years. After filing ineffectual 'motions for a new trial and in arrest of judgment, he appealed.

The information charged as follows:

“That on the second day of April, in the year of our Lord, one thousand nine hundred and seven, at the city of St. Louis, aforesaid, and in each ward and election precinct of said city of St. Louis, a general election was had and held pursuant to the Constitution and laws of the State of Missouri, for the choice and election of certain city officers, to-wit, for the election of members of the city council of the city of St. Louis, members of the board of education of the city of St. Louis, and for one member of the House of Delegates of the said city of St. Louis, to be elected from each ward thereof; and that one John Scott was then and there a duly registered voter and elector in the sixth election precinct of the fourteenth ward of said city of St. Louis, entitled to east a ballot for the officers to be voted upon at said election as. aforesaid, and that then and there on said second day of April, one thousand nine hundred and seven, at the city of St. Louis aforesaid, at the said general election, one James, alias Jim Scott, did appear at the polling place of the said sixth election precinct of the fourteenth ward of said city of St. Louis, before the duly appointed, qualified and acting judges and clerks of election within and for the said election precinct of said ward, and knowing himself not to be the John Scott, a duly registered voter and elector in said election precinct as aforesaid, did then and, there falsely, fraudulently and feloniously apply for a ballot in and upon the name of the said John Scott, registered voter and elector as aforesaid, and did then and there falsely, fraudulently and feloniously offer and attempt to cast said ballot and attempt to vote at the said general election and for the officers aforesaid, in and upon the name of the said John Scott, registered voter and elector as aforesaid; against the peace and dignity of the State.”

The evidence for the State tended to prove that on the 2nd day of April, 1907, in the city of St. Louis, and' in each ward and election precinct of said city, a general election was held, pursuant to law, for the choice and election of certain city officers. On said day the defendant entered the polling place of the sixth precinct of the fourteenth ward, at 2143 Clark avenue, in said city, and represented himself to be John Scott, whose name appeared upon the registration books, with residence at 109 South Twentieth street, and demanded a ballot. After receiving same he retired to a booth and prepared it, and then handed it to the judges. One of the judges then asked him how old he was, and he replied that his age was twenty-three years. The judge turned to the registration book and found that one John Scott was registered as a voter in the sixth precinct of the fourteenth ward. The record further showed that he was colored, a native of Missouri, thirty-six years of age, and registered at 109' South Twentieth. street. The John Scott thus registered did not sign his name, the same being represented by an “X” mark in the book. The defendant being further interrogated by the judges, insisted that his name was John Scott; that he resided at 109 South Twentieth street, and was the same John Scott who had registered. He was then asked to write his name on a piece of paper, which he did, and he was then informed that the original John Scott did not write his own name. The judges refused to deposit his ballot in the ballot box, and immediately had him placed under arrest.

John Centner, who acted as Republican clerk of registration and revision in said precinct, testified that the defendant was not the man who had registered as John Scott, and that it was he, witness, who had made the entries in the registration book when said John Scott presented himself for registration.

Several witnesses, including the landlady at 109 South Twentieth street, testified that defendant was not the same person known as John Scott, who resided at that number. It also appeared that soon after defendant’s arrest, and while in the custody of an officer, he was addressed by an acquaintance as “Jim.”

The defendant testified in his own behalf that his name was John Scott, and that he lived at 107 South Twentieth street; that he had never registered for the purpose of voting and did not know that such a thing was required. He denied having written his name in the presence of the judges of election when he appeared at the polling places on the day of the election. A colored woman who kept a rooming house at 107 South Twentieth street testified that defendant “looked like” a John Scott who had roomed at her house two or three weeks in the latter part of March or first part of April, 1907, but she was not sure as to his identity.

The grounds assigned for a new trial are:

1. That the verdict of the jury is against the law.

2. That the verdict of the jury is against the evidence.

3. The verdict of the jury is against the law and the evidence.

As to the first proposition, it is contended by defendant that the State failed to show that John Scott, of 109 South Twentieth street, was a duly qualified elector of the sixth precinct of the fourteenth ward.

It is well settled that a motion for a new trial must so definitely set out the reasons therefor as to direct the attention of the trial court to the precise error of' which complaint is made. [Huppert v. Weisgerber, 25 Mo. App. 95; Stone v. Wolfskill Bros., 59 Mo. App. 441.] And no reason not so specified shall be urged in support of the motion. [Vanstone v. Goodwin, 42 Mo. App. 39; Alexander v. Railroad, 54 Mo. App. 66.]

The simple assertion that the verdict of the jury is against the law does not indicate specifically wherein it infringes upon‘ the law, nor are we able to see in what particular it does so. It is no ground for setting aside the verdict of the jury that it may be against the evidence. It is only in case there is no substantial evidence to support the verdict that this court will interfere; and it cannot be said that there was no substantial evidence of the defendant’s guilt in this case. The verdict was approved by the court, and we must decline to interfere therewith.

The third ground assigned in the motion for a new trial simply reiterates and conjoins the first two, upon which we have passed.

Finding no reversible error in the record, the judgment is affirmed.

All concur.


text:
    THE STATE v. A. W. GEORGE, Appellant.
    Division Two,
    November 24, 1908.
    1. INSTRUCTIONS: Reviewable. Only such instructions as were complained of in the motion for a new trial can be considered on appeal.
    2. CARNAL KNOWLEDGE: Instruction. An instruction which tells the jury that “if they believe the defendant had sexual intercourse with the prosecutrix at a time when she was under fourteen years of age and at any time before the filing of the information in this case, then it is immaterial whether she consented to the act or not, and it is immaterial as to whether it occurred on. the day stated in the indictment or on some other day,” is correct, and in harmony with the statute, which makes carnal knowledge of any female under fourteen years of age, with or without her consent, a felony, and denominates the offense to be rape. Force is no element of the offense.
    3. LEADING QUESTIONS. The asking of leading questions, by the prosecuting attorney, of the prosecutrix in a carnal knowledge case, is largely within the discretion of the trial court, and not reversible error.
    4. CARNAL KNOWLEDGE: Testifying to Degrading Facts. The trial court properly declined to comply with defendant’s request to inform the prosecutrix in a carnal knowledge or rape case that she need not testify to any fact that would degrade her.
    5. INSTRUCTIONS: All Questions. If defendant did not preserve an exception to the failure of the trial court to instruct the jury on' all necessary questions of law arising in the trial, he cannot on appeal urge such failure as a ground for a reversal.
    Appeal from Camden Circuit Court.' — Son. Argus Cox, Judge.

      Affirmed.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) Defendant made objection to some of tbe evidence for tbe State, but bis objections were overruled. (a) Defendant objected to tbe examination of tbe prosecuting witness, because some of the questions asked were leading. But all tbe authorities bold that tbe asking of such questions is a matter within tbe discretion óf tbe trial court. State v. Bateman, 198 Mo. 222; State v. Woodward, 191 Mo. 632; State v. 'Whalen, 148 Mo. 290. (b) Defendant objected to prosecutrix testifying to tbe fact that she bad sexual intercourse with defendant, because it was degrading to her; and be asked tbe court to instruct tbe witness that she need not testify to anything that would degrade her. This tbe court declined to do, and defendant saved bis exceptions. This court has often held that a witness may be asked a question and compelled to answer the same, even though it tends to degrade him. State v. Long, 100 S. W. 590; 2 Wig-more on Evid., sec. 981; Stephens’ Digest of Evid., 123. (2) In bis motion for a new trial, defendant alleged that only instructions three and four were erroneous; tbe remaining instructions are, therefore, not before this court for consideration. Instruction 3 was more favorable to tbe defendant than to tbe State; but it stated tbe law, with special reference to tbe age of prosecutrix. Instruction 4 told tbe jury that if prosecutrix was under fourteen years of age, and that defendant had sexual intercourse with her at some time within three years prior to tbe filing of tbe information, then it was immaterial whether or not she consented, and also immaterial as to tbe exact day on which tbe criminal act act occurred. E. S. 1899', secs. 1837, 2418 and 2419‘. (3) Defendant also complains, in his motion for a new trial, that the court erred in not instructing the jury on all necessary questions of law arising in the trial. But he failed to save his exceptions at the time of said alleged failure. State v. Urspruch, 191 Mo. 50; State v. Finley, 193 Mo. 211. (4) There was sufficient evidence to justify a conviction of defendant. Prosecutrix téstified, in unequivocal terms, that she had sexual intercourse with defendant on the 16th day of November, 1904, the day that her father and mother went to Linn Creek to attend a stove drawing. Defendant’s conversations with the witnesses, Jeffries and Smith, were strongly corroborative of the testimony of prosecutrix; in fact, said conversations were conclusive. If the defendant was innocent, he certainly never, would have talked, that way to said witnesses, especially as he was the uncle of this little girl. The age of prosecutrix at the time of the commission of this crime was also testified to by her father, by her mother, and by Mrs. McDowell, the lady at whose house prosecutrix was bom and who was present at the time of said birth. True, defendant denied the criminal act, and introduced some evidence to contradict that given by the State’s witnesses, and also offered some impeaching evidence. But the weight of the evidence and the credibility of the witnesses, as well as their motives, were matters exclusively for the jury to pass on. State v. Dilts, 19.1 Mo. 665; State v. Miller, 191 Mo. 587; State v. Dusenberry, 112 Mo. 293; State v. Marcks, 140 Mo. 656.
   FOX, P. J.

This is an appeal on the part of the defendant from a judgment of the circuit court of Camden county, convicting the defendant of the offense of rape.

On the 14th of January, 1905, the prosecuting attorney of Camden county filed an information, duly verified, charging the defendant with rape. The date of the alleged offense was November 16, 1904, and Ida Florence George, a female child under the age of fourj teen years, is alleged to have been the victim of the defendant’s assault and ravishment. At the February term, 1906, the defendant was put upon his trial. The evidence upon the part of the State tended to show that the prosecutrix resided with her parents, Mr. and Mrs. Mat. George, on their farm some eight miles from Linn Creek in Camden county. On the day of the commission of the alleged crime the prosecuting witness was about thirteen years and ten months old. On that day the father and mother of prosecutrix went to the town of Linn Creek early in the morning, leaving prosecutrix and her younger sister, Pearl, at home. The parents did not return until about sundown. The de-. fendant, who is the uncle of prosecutrix, came to the house and sent Pearl to the spring to get some water. Pearl was a small girl, and was not very bright. During her absence defendant took prosecutrix to the bed and had sexual intercourse with her. This was the second time defendant had sexual intercourse with prosecutrix, but she made no complaint of the former act. On the 28th of January following this last act, the prosecuting witness told her father'and mother and older brother, and the defendant was arrested.' Before the arrest of the defendant he had conversations with one Robert Jeffries and Arthur Smith in which the defendant clearly indicated that he was having sexual intercourse with one of Mat. George’s girls. The defendant took the witness stand in his own behalf, and denied ever having sexual intercourse with prosecutrix. He also denied the conversations with State’s witnesses Jeffries and Smith. There were other witnesses introduced by the defendant who testified that the father of prosecutrix tried to get the defendant to pay some money to drop' the case against him, also tried to get defendant to lease the farm and leave the father of prosecutrix to cultivate the same. Some of these witnesses, however, admitted that they were not on friendly terms with the father of the prosecuting witness. There was other testimony introduced hy the defendant which tended to show that the prosecuting witness was more than fourteen years old at the time of the commission of the crime charged, and that her reputation was not good.

In rebuttal, the State proved by a lady witness, who was present at the birth of prosecutrix, that the prosecuting witness was born January 25, 1891. The father of prosecutrix testified and he contradicted the statements made by witness for the defendant that he was trying to get defendant’s relatives to pay him to drop the prosecution, and this witness claimed that such relatives sought him and tried to get him to accept money for that purpose.

This is a sufficient indication of the facts developed upon which this case was submitted to the jury and to enable us to determine the legal propositions involved in this cause. At the conclusion of the evidence the court instructed the jury and the cause was submitted to them. The instructions upon which appellant predicates assignments of error will be given attention during the course of the opinion. The jury returned a verdict finding the defendant guilty as charged in the information and assessed his punishment at imprisonment in the penitentiary for a term of five years. Timely motions for new trial and in arrest of judgment were filed and by the court overruled. Judgment and sentence was entered of record in conformity to the verdict returned and from this judgment the defendant prosecuted this appeal and the record is now before us for consideration.

OPINION.

The record before us discloses numerous complaints of error on the part of the trial court which are embraced in the motion for new trial.

I.

The complaint of the appellant as to the instructions given to the jury is limited to two, numbers three and four. These are the only declarations of law to which the attention of the trial court was directed in the motion for new trial, hence they are the only declarations which are before us for review. Instructions three and four complained of were as follows:

“3. Although you may believe that the defendant had sexual intercourse with Ida Florence George, yet unless you shall further believe that at the time he did so she was under fourteen years of age, the defendant should be acquitted.
“4. If you believe that the defendant had sexual intercourse with Ida Florence George at a time when she was under fourteen years of age and at any time before the filing of the information in this case, then it is immaterial whether she consented to the act or not, and it is also immaterial as to whether it occurred on the 16th day of November, 1904, or on some other day.”

Upon this proposition it is sufficient to say that we have carefully considered the two instructions complained of, and we are unwilling to say that they furnish any substantial basis for the complaint of the appellant. Instruction number 3 was one in favor of the defendant, and specially directed the jury that it was essential in order to find the defendant guilty to find that the prosecuting witness at the time of the alleged commission of the offense was under fourteen years of age. It certainly will not be seriously contended that this furnishes any substantial ground of complaint which would authorize the reversal of this judgment.

II.

Instruction number 4 upon which the appellant predicates another complaint, simply told the jury that if the defendant had sexual intercourse with the prosecuting witness at a time when she was under fourteen years of age, and at any time before the filing of the information in this case, then it was immaterial whether she consented to the act or not,'and further told the jury that it was immaterial as to whether it occurred on the 16th day of November, 1904, or some other day. In our opinion this instruction does not constitute any error. Section 1837, Revised Statutes 1899, in treating of the offense with which the defendant is charged, provides: “Every person who shall be convicted of rape, either by carnally and unlawfully knowing any female child under the age of fourteen years, or by forcibly ravishing any woman of the age of fourteen years or upward, shall suffer death, or bé punished by imprisonment in the penitentiary not less than five years, in the discretion of the jury.”

It will be observed that this section clearly points out the distinction between victims of the offense of rape. The first subdivision makes the offense complete by simple carnal and unlawful knowledge of any female child under the age of fourteen years. The second subdivision makes it essential as to any woman of the age of fourteen years or upward, that the acts constituting the offense of rape shall be accomplished by force. It is clear that under the first subdivision where the female is under the age of fourteen years it is not essential in order to constitute the offense of rape under that subdivision to show that it was committed with force or without the consent of the female. This court, in State v. Wray, 109 Mo. 594, after quotirtg section 3480, Revised Statutes 1889, which is the same as section 1837 herein quoted, expressly ruled that “carnal knowledge of a female child under fourteen years of age is rape under this statute, whether accomplished with or without force, or with or without the consent of the child.” We repeat that instruction number 4 was in perfect harmony with the provisions of the statute as well as the rulings of this court in treating of such statute.

III.

During the progress of the trial the record discloses numerous objections to the admission of testimony by the State, as well as exceptions to the rulings of the court in the rejection of testimony offered by the defendant. The appellant is not represented by counsel in this court, hence we are not favored with any brief or even suggestions concerning the complaints in the admission and exclusion of evidence during the progress of the trial. We have, however, in obedience to the provisions of the statute, carefully examined the disclosures of the record with the view of ascertaining whether or not there was any merit in the complaints made by appellant respecting the admission and exclusion of evidence. The record discloses that there were objections interposed to the examination of the prosecuting witness for the reason that some of the questions propounded to her were leading. It is true that some of the inquiries of the prosecuting witness were leading, but it is well settled by all tbe authorities upon this subject that the asking of leading questions is largely a matter within the discretion of the trial court. [State v. Bateman, 198 Mo. l. c. 222; State v. Woodward, 191 Mo. l. c. 632; State v. Whalen, 148 Mo. l. c. 290.]

The defendant also urged the objection to the prosecuting witness testifying to the fact that she had sexual intercourse with, the defendant on the ground that it was degrading to her, and appellant, by his counsel, requested the court to instruct the witness that she need not testify to anything that would degrade her. This the court declined to do, and the defendant properly preserved his exceptions to the action of the court. In our opinion there was no error in the action of the court in overruling the objection of the defendant and denying the request to instruct the witness that she need not testify to anything that would degrade her. The court very properly overruled the objection of the defendant and this ruling is well supported by authorities treating of this proposition. To hold otherwise would place an absolute bar to convictions in many of the most outrageous cases of this character. It is perfectly clear if the prosecuting witness is denied the right to testify to the acts committed in the accomplishment of this offense, or may at her own will decline to testify, it would be absolutely impossible to secure a conviction in many of the cases of this nature.

The record discloses many other objections to the admission and exclusion of evidence during the progress of the trial. We have directed our attention to such objections and it is sufficient to say that in our opinion there was no substantial error in the action of the court touching the admission or exclusion of evidence.

IV.

It is next contended by the appellant in his motion for new trial that the court committed error in not instructing the jury on all necessary questions of law arising in the trial. It is sufficient to say upon this proposition that the record discloses that the defendant failed to preserve his exceptions at the time it is alleged that the court made this failure; hence, that question is not before us for review. [State v. Urspruch, 191 Mo. l. c. 50; State v. Finley, 198 MO. l. c. 211.]

Y.

This brings us to the last proposition, that is, whether or not the evidence developed at the trial was sufficient to support the verdict of the jury. We have carefully read in detail all the testimony introduced in this cause, and while it may be said that there is a direct conflict between the testimony of the prosecuting witness and the defendant, as well as the other witnesses testifying in this cause, there is testimony on the part of the defendant which has a tendency to lessen the weight to be attached to the testimony of the prosecutrix, but on the other hand there is testimony on the part of the State which tends to corroborate the truthfulness of her statements. This conflict of testimony must finally be determined by the jury. It is exclusively their province, the witnesses being before them, to determine their credibility and the weight to be attached to their testimony. This court has uniformly held in a long line of decisions that where there is substantial evidence to support the verdict the appellate court should not undertake to retry the case upon the evidence as disclosed by the record. [State v. Dilts, 191 Mo. 665; State v. Miller, 191 Mo. 587; State v. Dusenberry, 112 Mo. 293; State v. Marcks, 140 Mo. 656; and many other cases.]

The testimony in this ease as is embraced in the record before us furnishes ample evidence to support the conclusion reached by the jury, and we are unwilling to disturb that conclusion. The judgment of the trial court should be affirmed, and it is so ordered.

All concur.


author: GRANTT, J.

text:
    THE STATE v. J. C. WEBBER, Appellant.
    Division Two,
    November 24, 1908.
    1. PEDDLER’S LICENSE: Police Regulation: Uniformity. The statute requiring a peddler to have a license is not a revenue measure, hut a police regulation. It is a regulation of persons following a certain character of business, and not a tax upon property. The constitutional provisions requiring taxation to he equal and uniform, therefore, have no application to a peddler’s license.
    2. -: Constitutional Statute: Special: Exemptions of Certain Classes. Because the statute requires itinerant vendors of certain articles, such as liniments and lemon extracts, to have a peddler’s license, and does not require like vendors of other articles, such as pianos, hooks or agricultural instruments, to 'have a peddler’s license, it is not unconstitutional, as a special law. If the rule is uniform as to all vendors of a particular article, the classification is not arbitrary, nor the law special.
    3. -: -: -: -: Equal Protection. Nor does such statute deny to peddlers of the included articles the equal protection of the laws given to the vendors of the exempted articles. The power to select particular trades or occupations and subject them to a license tax, cannot be denied to the Legislature, nor the power to tax such trades aceordin'g to different rules, provided the rule in regard to each business is uniform.
    Appeal from Vernon Circuit Court. — Ron. B. G. Thurmcm, Judge.
    Affirmed.

      Warner, Dean, McLeod & Timmonds for appellant.
    The statutes under which this prosecution was had are unconstitutional and void. They make it a criminal offense for dealers in some goods, wares and merchandise to go about from place to place to sell the same without a peddler’s license. In other words, peddlers who sell some goods, wares and merchandise must take out licenses; while peddlers who sell certain other goods, wares and merchandise may do so — have the “right, privilege or immunity” to do so without license. So that some peddlers are liable to criminal prosecutions, while other peddlers are exempt. A statute is not within the constitutional inhibition because it is designed to operate on one class only, provided the conditions reasonably justify the distinguishing of the class, and provided it affects equally all who come within that class. Hammon v. Central Coal Co., 156 Mo. 202; State v. Washburn, 167 Mo. 689. But, if the attempted classification be arbitrary, or if the statute essays to confer a “right, privilege or immunity” upon one, or some, in the class and not upon all, the act is invalid. State v. Walsh, 136 Mo. 400; State v. Thomas, 138 Mo. 95; State v. Washburn, 167 Mo. 689. That peddlers may be distinguished as a class, we do not question; but we do contend that the Legislature cannot arbitrarily classify as peddlers those only who sell certain goods, wares and merchandise, and not deem as peddlers those who' sell certain other goods, wares and merchandise. Otherwise stated, the Legislature cannot arbitrarily separate peddlers into two unnatural classes or distinctions, and require one of such classes to take out license, while granting to the other the “right, privilege or immunity” to peddle without license — at least, no such arbitrary classification or distinction can be made as is attempted by the statute in question. Those who deal in selling “lemon extract” or “liniment,” by going about from place to place to sell the same, are peddlers; those who deal in selling pianos, organs, books, charts, maps, eggs, butter and cheese, by going about from place to place to sell the same, are also peddlers. All being peddlers —all belonging to one class1 — the Legislature must treat them all alike. No good reason is conceivable why peddlers of “lemon extracts” or “liniments” are more to be abhorred, feared, restricted or punished than peddlers of pianos, organs, maps, books, charts, eggs, butter or cheese. They are all peddlers, enjoying equal social, political, moral, religious and business standing. State v. Hoffman, 50 Mo. App. 585; Clements v. Town of Casper, 4 Wyo. 494; State v. Thomas, 138 Mo. 100; State v. Loomis, 115 Mo. 313; State v. Walsh, 136 Mo. 400.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    The statute was enacted for the protection of our home merchants and tradesmen, for the purpose of raising some revenue for the State, and as a police regulation. It has always been held to be a valid and reasonable exercise of the police power of the State. After a lengthy review of the authorities, in a well-considered opinion, this court held the selling of picture frames by a defendant, who went from place to place, constituted said defendant a peddler. The judgment of the circuit court, imposing a fine upon said defendant for his failure to procure a peddler’s license, was affirmed. State v. Looney, 214 Mxx 216. Under the repeated decisions of our court, and under the decisions-of the Federal courts, defendant’s sales of medicine constituted him a peddler. State v. Emert, 103 Mo. 241; State v. Parsons, 124 Mo. 436; Parsons v. State, 166 U. S. 718; State v. Smithson, 106 Mo. 149; State v. Snoddy, 128 Mo. 523; Emert v. Missouri, 156 U. S'. 296; Haynes v. Briggs, 41 Fed. 468. The Peddler’s statute is constitutional, and is not subject to the criticism of appellant’s counsel. By reading said statute (R. S. 1899, sec. 8861), it will be seen that it declares all persons to be peddlers who deal in all kinds of patents, all kinds of patent rights, all kinds of patent and other medicines, all kinds of lightning rods, and all kinds of merchandise, except those mentioned and farm products. Pianos, organs, sewing machines, books, charts, maps and stationery belong to the exempted class of merchandise. The articles of merchandise, exempted by the statute, consist of articles which tend to educate and refine society. And the exemption of farm products from said statute did not render the statute in violation of the Constitution. People v. Smith, 110 N. W. 1102; People v. Sawyer, 106 Mich. 428.
   GRANTT, J.

On the 11th day of May, 1907, the prosecuting attorney of Vernon county filed the following information, duly verified, before Henry Dalton, a justice of the peace within and for Center township in said county:

“James N. Coil, prosecuting attorney, within and for the county of Vernon and State of Missouri, on his oath of office and on his best information and belief, informs the court that J. C. Webber, on or about the — day of May, 1907, at and in the said county of Vernon and State of Missouri, did then and there willfully and unlawfully deal in the selling of goods, wares and merchandise as a peddler, by going about from place to place with two horses and wagon used by the said J. C. Webber, for that purpose, by then and there sellings divers goods, to-wit, one bottle of liniment to one Ben Fink, for the sum of one dollar, two bottles of lemon extract to Mrs.--Wilkerson, for the sum of fifty cents, and divers other articles to this informant unknown, to divers persons whose names are unknown, without then and there having a peddler’s license, or any other legal authority therefor; contrary to the forms of the statutes in such cases made and provided, and against the peace and dignity of the State of Missouri. ”

A change of venue, was granted to Justice Cummings, and on September 20, 1907, the defendant was put on his trial on said information and found guilty and Ms pnnisMnent assessed at twenty-five dollars, and judgment rendered accordingly.

On the same day the defendant took his appeal in due form to the circuit court of Vernon county. At the October term, 1907, of the circuit court the defendant demurred to the information on the following grounds: •

1st. Said information does not constitute facts sufficient to charge this defendant with the violation of any law, or the commission of any crime or offense.

2nd. Sections 8861, 8862 and 8868 of the Revised Statutes 1899, under which this prosecution was instituted, are null and void* because they are in violation of section 53, article 4, of the Constitution of this State, providing that the General Assembly of this State shall not pass any local or special law granting to any corporation, association or individual any special or exclusive right, privilege or immumty.

This demurrer was overruled and thereupon afterwards, at the same term, the question coming on for hearing, a jury was waived and the question was submitted to the court upon the following statement of facts:

“On the ;-day of May, 1907, at Vernon county, Missouri, the defendant did deal in the selling of liniment and lemon extract by going about from place to place to sell the same and he did then and there sell one bottle of limment to one Ben Fink, for the sum of one dollar, and two bottles of lemon extract to Mrs. Wilkerson for the sum of fifty cents, and it is also agreed that the defendant did not have any peddler’s license authorizing him so to do.”

At the time of submitting the question on the said statement of facts, defendant requested the court to give the following instructions:

“1. The court declares the law to be that under the information and evidence in this case, the court should find the defendant not guilty.
“2. The court declares that the Peddler’s statutes, under which this prosecution is being had, are null and void, because in violation of section 53, article 4, of the Constitution of the State; and the defend7 ant should be found not guilty.
“3. The court declares the Peddler’s statutes, under which this prosecution is being had, are null and void because in violation of the 14th amendment to the Constitution of the United States; and the defendant should be found not guilty.”

Which said instructions the court refused, and the defendant duly saved his exceptions to the action of the court in so ruling. Thereupon the court found the defendant guilty of peddling without a license as charged in the information and assessed his punishment at a fine of fifteen dollars, and rendered judgment accordingly. And thereafter on the same day the defendant filed his motion for a new trial, assigning as error the refusal of the said instructions, prayed by him, by the court. Which said motion for new trial was by the court overruled and defendant saved his exceptions. Defendant also filed his motion in arrest, assigning as grounds thereof that the information was insufficient to charge him with any crime because the statutes, to-wit, sections 8861, 8862 and 8868, Revised Statutes 1899, were null and void, because in violation of the 14th amendment to the Constitution of the United States. Which said motion was also overruled and defendant saved his exceptions. Thereafter an appeal was granted to this court in due form.

I. This appeal involves the constitutionality of sections 8861, 8862 and 8868, Revised Statutes 1899.

Section 8861 defines a peddler to be “whoever shall deal in the selling of patents, patent rights, patent or other medicine, lightning rods, goods, wares or mercliandise, except pianos, organs, sewing machines, hooks,, charts, maps and stationery, agricultural and horticultural products, including milk, butter, eggs and cheese, by going from place to place to sell the same.”

It is obvious that if the statute is constitutional, the defendant was a peddler, and not having a license was guilty. The act is assailed on the ground that it is class legislation and in violation of section 53 of article 4 of the Constitution of this State which forbids special laws granting to any individual special or exclusive rights, privileges or immunities, and also in violation of the 14th amendment to the Constitution of the United States. It is conceded by the learned counsel for defendant that it is perfectly competent for the Legislature to select peddlers as a class, which shall be required to obtain a license as a prerequisite to following that occupation. .No doubt whatever exists on this point. It has been repeatedly so held by the courts of the several states and the Federal courts. The regulation of the business of itinerant peddlers is very ancient.

Baron Graham, in Attorney-General v. Tongue, 12 Price 51, said: “The object of the Legislature in passing the act upon which this information is founded was to protect on the one hand, fair traders, particularly established shopkeepers, resident permanently in towns and other places, and paying rent and taxes there for local privileges, from the mischiefs of being undersold by itinerant persons, to their injury, and on the other hand, to guard the public from the imposition's practiced by such persons in the course of their dealings, who having no known residence, carry on a trade by means of vending goods conveyed from place to place by horse or cart.” [Graffty v. Rushville, 107 Ind. 502; City of South Bend v. Martin, 142 Ind. 31; 21 Am. and Eng. Ency. Law (2 Ed.), 791.] But it is insisted that section 8861 has arbitrarily diyided this natural class and requires one of such classes to take out a license, and at the same time grants the other the “right, privilege or immunity” to peddle without a license. That is to say, the Legislature cannot exempt those who deal in selling pianos, organs, hooks, charts, maps, eggs, butter and cheese from taking out a license, and by the same statute, require those who peddle other merchandise, as in this ease, “extracts and liniments, ’ ’ to obtain a license. That this is class legislation. It is the settled doctrine of this court that before an act of the Legislature will be held unconstitutional it must appear beyond reasonable doubt that it is in contravention of the Constitution. This assault upon the peddler’s license is not new.

It must be borne in mind that this is not a revenue measure, but is a* police regulation. It is regulation of persons following a certain character of business, and not a tax upon property.

In Seymour v. State, 51 Ala. 52, the Peddler’s Act of that State was resisted on the ground that the exemption of manufacturers and makers to peddle their products was void because an unlawful discrimination between the same general class, but the Supreme Court of that State held that the State had the right to make such exemption without infringing upon the Constitution. That the privileges and immunities were the same. That every peddler who paid any license at all, paid the same. In Hays v. Commonwealth, 55 S. W. 425, a like contention was made and it was urged that because certain articles were allowed to be peddled without a license, the act violated the 14th amendment to the Federal Constitution but the Court of Appeals rejected that contention, saying: “It is true certain articles of property are allowed to be sold by itinerant persons without a license, and they can be sold by any and every person, either as an itinerant or otherwise. Therefore, there is no discrimination. Moreover, all citizens, if they elect to peddle the prohibited goods, must have a license to do so; otherwise, they are subjected to punishment. Hence there is absolutely no discrimination between citizens, each and every one standing on an exact equality under the peddler’s law. If the fact that a man may sell stoneware without a license renders the whole peddler’s law unconstitutional, it necessarily follows that the statute requiring a license to sell alcoholic liquors is in violation of the same provision of the Constitution, because the citzen may sell various other articles, both liquid and solid, without any license; and the right of both the State and Federal governments to require license of venders of alcoholic liquors has always been sustained by the courts of last resort, both Federal and State, so far as we are advised.”

So in People v. DeBlaay, 137 Mich. 402, an act of the Legislature of that State prohibited peddling without a license, but made an exception in favor of wholesale merchants selling by sample, and manufacturers, farmers, mechanics and nurserymen selling their own products, and this exception or exemption was challenged on the ground that it constituted class legislation. But the Supreme Court of that State ruled that this could not be called class legislation in such a sense as to deny any citizen an equal protection of the law. Under this provision all persons in the same class were treated alike under like circumstances and conditions. Similar provisions having been sustained by that court in People v. Sawyer, 106 Mich. 428, a like ruling was made in People v. Smith, 110 N. W. 1102, the court saying in this last case, “The defendant’s first contention, which is that because the ordinance in terms excepts persons selling vegetables, fish, meat, or farm produce, and bakers who deliver bread and pastry to customers, from its provisions, it is therefore invalid, is ruled against him by People v. Sawyer, 106 Mich. 428, and People v. Baker, 115 Mich. 199.”

In State v. Montgomery, 43 Atl. 16, it was said by the court: “It is contended that the exception which permits one to peddle without a license ‘the products of his own labor, or the labor of his family, any patent of his own invention, or in which he has, become interested by being a member of any firm, or stockholder in any corporation which has purchased the patent,’ is a discrimination in favor of some and against others. We do not think so. If one may peddle freely the products of his own labor, so may all. The products may be unlike, but the freedom to prosecute one’s own business and to peddle his own products is free alike to all. So of the other exceptions. While it may happen that various producers may peddle each the product of his own labor without license, but not of the labor of another, still we .think this fairly answers the requirements of uniformity. T[ie Legislature is the sole judge of the extent to which the business of peddling should be regulated, and its conclusions are final, so long as the burdens imposed do not bear unevenly upon citizens.”

In State v. Stevenson, 109 N. C. 730, a license tax upon merchants was upheld, although it exempted purchasers of farm products from the producer. The court after observing that the law puts all merchants dealing in farm products purchased of the producer in one class and all other merchants in another class and treats all in each class alike, goes on to say: “There is no discrimination in either class. The power to select particular trades or occupations and subject them to a license tax cannot be denied to the Legislature, nor the power to tax such trades according to different rules, provided the rule in regard, to each business is uniform.” ■

In Levy v. State, 161 Ind. 251, the constitutionality of an act of that State prohibiting the transaction of business by any transient, merchant without a •license was held not to deny the transient merchant the equal protection of the laws in violation of the amendment of the United States Constitution. The Supreme Court of that State in an exhaustive opinion considered all the objections to the constitutionality of the act, and held that it granted no special privilege and immunities, but applied to all transient merchants and was a natural and reasonable classification, and held that the occupation of a transient merchant closely resembles that of hawkers and peddlers, and sustained the law as a proper exercise of the police power of the State.

In People v. Sawyer, 106 Mich. 428, a municipal ordinance was attacked on the ground of illegal discrimination, because it exempted mechanics and farmers selling their own manufactures and products, but it was held v that it was competent to make these exceptions, the court saying, “The discrimination in favor of mechanics and farmers in the sale of their products is within the power conferred by the charter upon the common council. These immunities have been recognized for many years. By the statute, 50 Geo. III, ch. 41, sec. 23, real workers or makers of goods within Great Britain were exempt from the payment of the license fee which was imposed upon hawkers and peddlers. [Rex v. Faraday, 1 B. & Ad. 275; Rex v. Mainwaring, 10 B. & C. 66.]”

The Peddler’s Act of this State has been on our statute book for many years. In Welton v. State, 91 U. S. 275, the Supreme Court of the United States held the provision of the statute which discriminated in favor of articles, the growth and product of this State, was a violation of the Federal Constitution which forbids a State without the consent of Congress from laying any impost or duty on imports or exports and with the power in Congress to regulate commerce among the several states. But with this exception, the constitutionality of the act has never been questioned. After the decision in Welton v. State, supra, the statute was amended so as to eliminate the feature of discrimination against the products of other states, and the decision of this court upon the statute as amended, in State v. Emert, 103 Mo. 241, was affirmed in 156 U. S. 296, and the judgment in State v. Parsons, 124 Mo. 436, was affirmed in 166 U. S. 718.

In the recent case of St. Louis v. Meyer, 185 Mo. 583, it was held that a farmer selling the products of his own farm was not a peddler under the Peddler’s Act of this State, and the necessary effect of the ruling was and is to sustain the exception of those who peddle their own agricultural and horticultural products.

When we consider the underlying consideration which moved the Legislature to pass our Peddler’s Act and that it is a police regulation for the protection of our people, we think it was competent for the Legislature to distinguish between itinerant venders of the exempted articles on the one hand and to require safeguards against peddlers of goods and wares not exempted on the other, in view of the mischiefs which it was sought to guard against.

We think the decided weight of authority is in favor of the constitutionality of such exemptions.

As already said, the provision of our Constitution requiring taxation to be equal and uniform on all property within the territorial limits of the authority levying the tax has no application to the case before us. This act imposes no tax on property, but only requires a license to be paid by persons who peddle certain articles. We think the statute can be justified on many grounds, and it was the right of the Legislature to enact it as a police regulation, and we can discover no such arbitrary inequality in it as to justify this, court in holding it unconstitutional on any of the grounds urged against it.

The judgment is affirmed.

Fox, P. J., and Burgess, J., concur.