author: BROWN, P. J.

text:
    THE STATE v. I. M. HORTON, Appellant.
    Division Two,
    February 19, 1913.
    1. APPEAL: Review of Instructions. Unless appellant’s motion, for a new trial complains of the court’s instruction on the subject of alibi, the alleged error in giving it will not be reviewed on appeal.
    2. PHYSICAL EXAMINATION OF DEFENDANT: Consent: Self-Incrimination: No Objection. The testimony of physicians who' testified that, after defendant’s arrest, charged with statutory rape upon an eleven-year-old girl, they made a physical examination of defendant’s person at the request of the police captain, and found him afflicted with a venereal disease, his only “consent” consisting of a failure to object to the physical examination, is incompetent, if properly objected to, as an invasion of his constitutional right not to be compelled to testify against himself; but where his only objection to the testimony was that the physical examination took place after the preliminary examination before the committing magistrate, the admission of' the incompetent testimony did not constitute reversible error, since the objection was not sufficient to call the trial court’s attention to its incompetency.
    3. EVIDENCE: Threats of Mother of Prose'sutrix: Competent. The defendant charged with statutory rape iu entitled to show that the mother of prosecutrix, called as a witness by the State, had made threats against him before the alleged assault; and where, on cross-examination, she denies having made any such, threats and denies having engaged in a certain quarrel with him, he is entitled to call witnesses to show she did make such threats and did engage in said quarrel. Having laid the proper foundation, he is entitled to present such testimony to show the bias, malice, ill-will and prejudice of the witness, whoever is the prosecutrix; but such testimony is especially pertinent and fair where the prosecutrix is an eleven-year-old girl, and is in the control and custody of a witness who is the real prosecutor or prosecutrix, in a case where the charge is sometime» the result of ulterior motives.
    4. CARNAL KNOWLEDGE, ETC.: Necessity for Fairness and Caution. The frequency of verdicts of guilty in cases of rape, carnal knowledge, incest and seduction upon evidence not strong enough to secure convictions in other criminal prosecutions, demonstrates that the mere charge of an assault upon a woman or child sometimes injects such prejudice into the minds of the jury as to compel defendant to proye hisi innocence beyond a reasonable doubt, and makes it necessary that officers should conduct such prosecutions with scrupulous fairness.
    5. -: -: Other Disconnected Acts. The offer of evidence of an assault upon another little girl in the school of the defendant, who is charged with carnally knowing an eleven-year-old pupil wholly disconnected from said charge, was not only improper, but, in this case, the mere offer was prejudicial.
    Appeal from Jackson Criminal Court. — lion. Ralph 8. Latshaw, Judge.
    REVERSED AND REMANDED.

      Glen L. Bruner for appellant.
    (1) The verdict of the jury was against the evidence and should be set aside. Under the evidence the verdict indicated that the jury were actuated by bias and prejudice against defendant. (2) The court erred in not sustaining defendant’s objections to the testimony of Dr. Stone, who examined the defendant and testified as to his findings. State v. Newcomb, 220 Mo. 65; Constitution, art. 2, sec. 23. (3) The verdict is against the evidence and against the weight of the evidence. Johnson v. State, 17 Ohio, 593; ITornbeck v. State, 35 Oh. St. 277; Higgins v. People, 58 N. Y. 377; State v. Shettleworth, 18 Minn. 208; State v. Knoff, 45 N. H. 148; State v. DeWolf, 8 Conn. 93; 4 Blackstone, 213; Topalanck v. State, 40 Tex. 160; State v. Patrick, 107 Mo. 147.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) The trial court’s rulings on evidence are in accordance with prior rulings of this court. There is only one exception that is worthy of note, in which appellant’s counsel undertake to show that the Cason family had made threats against appellant. The court ruled that such threats were not admissible, for the reason that said threats were not brought home to Callie Cason. We think this ruling proper. While it may be shown in defense the prosecutrix’s ill-feeling toward appellant, yet, in this case no such proof was offered. (2) The sufficiency of the evidence was for .the jury. When there is substantial evidence to support the verdict, this court will not convert itself into a trier of the facts. State v. McCullough, 171 Mo. 574; State v. McGuire, 193 Mo. 227; State v. Williams, 199 Mo. 137; State v. Matthews, 202 Mo. 147. (3) Appellant cannot complain of the physical examination made of him by the physician. There is ample evidence in the record showing that he consented to such examination. Attorneys for appellant undertake to make the point that he was not then represented by counsel, but there is nothing in the record showing that he requested counsel, except one time at the jail, and the witness who had charge of him stated that the only reason they' did not then stop to let appellant’s counsel confer with him was because of the mob, and the fact that appellant was in danger of being taken from them and subjected to violent treatment-.
   BROWN, P. J.

Tried in the criminal court of Jackson county, defendant was convicted of rape, and appeals from a judgment of that court sentencing bim to a term of twenty-five years in the State penitentiary.

Defendant (colored) was a school teacher in Kansas City, Missouri, and was charged with ravishing Callie Cason, one of his pupils, of the age of eleven years.

The testimony of the prosecutrix is to the effect that when school adjourned'for the noon hour on May 25, 1911, the defendant requested her to re-7. 7 x main and pour some water on Ms hands; that, after the other pupils had left the building, defendant locked the doors, placed her on a table and ravished her. She says that while defendant was making the assault she threatened to tell her father and mother; whereupon defendant promised to give her a nickel if she did not tell on him. She testified quite-positively that defendant confined her in the school room all afternoon. Upon further examination she stated that while the assault was being committed four or five little girl-pupils returned and “peeped in” through the windows of the school, house; that defendant saw these pupils, discontinued the assault and let the little girls into the school room; whereupon the defendant and all the pupils gathered at the home of Mrs. Dulin, a neighbor, to play upon a piano and practice singing for the closing exercises of school.

The crime, if committed by defendant, was committed on Thursday, May 25, 1911. Prosecutrix attended school'on the following day (Friday), but did not inform anyone of the assault until about ten days later. On Thursday of the following week prosecutrix went to Kansas City, Kansas, to visit Mrs. Bell, a married sister, where she remained until the following Saturday evening. Prosecutrix further testified that she did not inform her sister of the assault while on tMs visit, but the sister (Mrs. Bell) testified that the prosecutrix did inform her of the crime while at her home. That she (Mrs. Bell) went home with prosecu-trix Saturday evening intending to inform her mother of what had occurred. She says that she forgot to tell her mother until about eleven o ’clock the next day (Sunday).

The mother of prosecutrix testifies that after being informed of the crime she called upon prosecutrix for an explanation; that prosecutrix “began to cry, and I asked her what she was crying for. She said:. 'Mamma, If I tell you what is the trouble will you whip me?’ I said: 'I won’t if you tell me.’ ” Prose-cutrix then informed her mother that she had been ravished by defendant. A physician was promptly called who made an examination of the prosecutrix and found that her hymen was torn and lacerated, and that she was suffering from gonorrhea.

Two of the little girls who prosecutrix testified had “peeped in” to the school house at the time of the alleged assault, were called by the State. One of them testifies that, when she reached the school house, just after lunch, neither the defendant nor prosecu-trix were there; that they had gone up to Mrs. Dulin’s to practice on the piano. The other girl testified that defendant and prosecutrix were standing inside the school house when she arrived there. That she saw no assault committed, but that the dress of the prose-cutrix “was wrinkled.”

After his arrest defendant was examined by two physicians at the request of a police captain. These physicians found that defendant was suffering from gonorrhea, apparently a very recent infection of that disease.

Prosecutrix further testified that defendant had whipped her while she was a pupil at his school, but she could not remember how many times, or why the whippings were administered.

Defendant denied the charge. His testimony is to the effect that when he dismissed his pupils at noon on May 25,1911, he accompanied a little seven-year-old pupil to the home of her aunt, a Mrs. Edwards, about two blocks from the school house, eating his lunch as he walked along the street. That it was his custom to accompany this seven-year-old pupil home to. prevent the older pupils from fighting or abusing her; that from Mrs. Edward’s house he went to the home of Mrs. Dulin, a short distance from the school house. Mrs. Dulin is also colored and owned her own home and a piano. By her permission, and at defendant’s request, his pupils assembled there to play upon her piano and to practice some songs which he intended should he sung at the close of school.

Mrs. Edwards and Mrs. Dulin corroborate defendant’s testimony regarding his visit to their homes-on the day of the alleged assault. Mrs. Dulin testifies-that defendant arrived at her home about ten minutes after noon on May 25, 1911, while she and her husband were eating lunch; that his pupils came in as soon as-they had time to go home for lunch. She and several other witnesses testified that prosecutrix came to Mrs. Dulin’s on May 25, and joined in the noon-hour singing practice.

A colored man named Thomas (a teamster) testified that he arrived at the school house precisely at noon on May 25, 1911, and went into the building to-use the telephone; that school had been dismissed, and that there was no one in the building at that time; that a few minutes later he went to Mrs. Dulin’s and saw defendant and prosecutrix there.

Defendant testified that the mother of prosecutrix was angry with him because he had whipped her children, and because he was, in some way, connected with some charity contributions which the mayor had sent to him for distribution on the preceding Christmas. That she had said he should not teach that school another term.

Three witnesses testified to the good reputation of defendant prior to the time he was arrested on the present charge. One of these witnesses admitted that he had been convicted and confined in jail. This conviction took place several years before the trial of defendant. None of the character witnesses seemed to be intimately acquainted with defendant.

Such further evidence and facts as will be necessary to a full understanding of the case will be recited in our opinion.

OPINION.

I. Defendant complains of the trial court’s instruction on the subject of alibi, bnt as this alleged error is not recited in defendant’s motion for new trial, it is not before ns for review. [State v. Conway, 241 Mo. 271.]

II. Defendant insists that the physicians who examined him while he was in custody should not have been allowed to testify to the fact that he was suffering from a venereal disease. To meet this insistence the State contends that the examination complained of was made with defendant’s consent. We have read the record carefully and find that the “consent” consisted of the failure of defendant to object to the physical examination.

When a man is under arrest, without counsel, and, Speaking metaphorically, is standing in the shadow of a policeman’s club, it requires something much more substantial than silence to justify an invasion of f his constitutional right not to be compelled to furnish evidence against himself.

If the evidence of the physicians had been objected to on the ground that the physical examination which they made under the orders of a police captain amounted to compelling him to testify against himself, as prohibited by section 23, article 2, of the Constitution of Missouri, then the admission of their evidence would undoubtedly have constituted reversible error. [State v. Newcomb, 220 Mo. 54, l. c. 65.] However, instead of objecting to this evidence on proper grounds, defendant merely objected because the physical examination took place after the preliminary examination before the committing magistrate. Such an objection was wholly insufficient to call the trial court’s attention to the incompetency of this evidence. Therefore, this assignment must also be ruled against defendant. [State v. Crone, 209 Mo. l. c. 330.]

III. A third contention of defendant is that the trial court erred in refusing to allow him to prove that Mrs. Lutie Oason, the * mother of prosecutrix and a witness for the State, had made' threats against him before the alleged assault on her daughter.

When Mrs. Cason was introduced by the State, defendant’s attorney asked her if she did not, at the colored church on Christmas Eve, 1910, make threats of personal violence against defendant. She denied making any such threats, and denied that she had engaged in any quarrel with defendant. Defendant thereafter offered to prove by witness Thomas that Mrs. Oason did make the threats against him as alleged. The evidence of Thomas was objected to on the ground that such threats, if proven, would not establish the fact that prosecutrix was angry with defendant, and the proffered evidence was excluded. This was error. Such cases as State v. Newcomb, 220 Mo. 54; State v. Goodale, 210 Mo. 275; and State v. Brown, 209 Mo. 413, impel us to recognize the fact that in this class of cases where the nominal prosecutrix is a mere child, the person having custody or control of such child is the real prosecutor or prosecutrix, and that charges of this character are sometimes preferred for ulterior purposes. However, under the law it is wholly immaterial who was the prosecutrix in this cause. The defendant had the legal right to bring to the attention of the jury any fact which would show malice or ill-will against him on the part of any witness who testified on behalf of the State, for the purpose of affecting the credibility of such witness and the weight to be given to his or her testimony, first having laid a proper foundation for such evidence.

It is true that some witnesses will tell the whole truth regarding any matter concerning which they are called upon to give evidence, regardless of their friendship for or hatred of the parties to the action, and a witness is competent to give evidence regardless of his feelings towards the parties litigant, hut we cannot shut our eyes to • the fact that there is still a larger number of people, many of them regarded as truthful and honorable, who, when called as witnesses, will shade or color their evidence by “forgetting” part of the facts and giving exaggerated emphasis to other facts for the purpose of protecting their friends and placing those whom they dislike in a bad light before the court or jury.

In 33 Oyc. 1455, the doctrine is announced that, in prosecutions for rape or assault with intent to commit rape, “defendant may introduce any competent evidence, direct or circumstantial, to show that the charge against him was concocted by the prosecutrix or others. Facts or circumstances which tend to show the motive or bias of any witness who has testified, or the motive of the prosecutrix in making the charge, or to affect her credibility, are admissible; but such evidence is generally confined to bias or motive of one who has testified as a witness.” [See, also, 1 Wharton’s Criminal Evidence .(10 Ed.), sec. 359.]

However, it is not necessary to go outside of our own State for authorities to support the doctrine above announced. In the case of State v. Pruett, 144 Mo. 92, l. c. 94, Sheewood, J., speaking for this court, said:

“Error also occurred in refusing defendant permission to ask Crisman whether he had not ‘threatened .to kill defendant or run him off the place.’ This question was clearly competent, since it is always competent to show by such interrogatory that the witness has a bias against or hostile feeling toward a party litigant, and if the witness deny such feeling, etc., he may be contradicted, because it is always important and all-important to show that the witness does not stand indifferent between' the contending parties.”

The case last cited was approved in the case of State v. Darling, 202 Mo. 170. [See, also, State v. Miller, 71 Mo. 590.]

We think the evidence in this canse entitled the State to go to the jury, bnt the frequency of verdicts of guilty on charges of rape, incest, carnal knowledge and seduction, upon evidence not strong enough to secure convictions on other 0 charges, demonstrates the fact that when a man is charged with an assault upon a woman or child, the charge itself injects more or less prejudice into the minds of the jury, and such prejudice sometimes attains such force as to compel the defendant to prove himself innocent beyond a reasonable doubt, in order to secure an acquittal.-

This being a fact well known, at least to the courts, it is, in the opinion of the writer, necessary that officers should conduct prosecutions of this character with scrupulous fairness and avoid injecting into the minds of the jury any matter which is not proper for their consideration, or which would add to the prejudice which the charge itself has produced in their minds.

In the instant case the State, as a part of its evidence in chief, attempted to introduce proof of an assault upon another pupil who attended defendant’s •school, but such proof, upon objection, was properly excluded. Whether the offer of evidence an independent crime wholly disconnected with the charge for which defendant was on trial, and not intended to throw light upon Ms intent in the present case amounted to reversible error, we need not now decide, but we are satisfied that said evidence was not only improper but the mere offer of such evidence tended to prejudice the jury.

As the judgment must be reversed the prosecuting attorney should prefer a separate information against defendant for each, crime he may have committed, if in fact he has committed other crimes, and give him a separate trial for each offense. It is not permissible in this State to try persons for crimes not pleaded in the indictment. [Art. 2, sec. 22, Constitution of Missouri; State v. Teeter, 239 Mo. 475, l. c. 485; 1 Wharton’s Criminal Evidence (10 Ed.), secs. 29 and 30.]

At section 29a the same author says: “While the law regards as relevant all facts touching the credibility of the accused, or that can aid a jury to determine the weight of testimony; and while the question •of relevancy must rest largely in the discretion of the trial judge, to be exercised by him with regard to the particular facts of each case, there is a marked distinction drawn between such facts and those sought to be brought out that merely tend to degrade the accused, •or, by innuendo, to place irrelevant testimony before the jury. Such questions ... as: ‘Have you not been arrested for felony?’ — where not propounded in good faith, or asked concerning facts that in themselves are irrelevant, constitute reversible error, entitling the accused to a new trial. And this is true even though such questions are objected to at the time ■on the ground of irrelevancy, and the answer excluded by the court. The reason is, the irrelevant facts have been placed before the jury by innuendo, the sinister influence remains, nor is it destroyed by the exclusion. It rationally follows, therefore, that the jury has been prejudiced against the accused as fully as though the Irrelevant facts themselves had been admitted, and nothing that the court can say entirely obliterates the effect. ’ ’

For the error of the trial court in excluding evidence of threats made by the mother of prosecutrix against the defendant, as before recited, its judgment is reversed, and the cause remanded for a new. trial.

Walker and Faris, JJ., concur.


source: Caselaw Access Project

author: EARIS, J.

license: Public Domain

text:
    THE STATE v. MINNIE DIXON, Appellant.
    Division Two,
    February 19, 1913.
    1. INFORMATION: Felony: Word “Feloniously” Omitted. An information charging acts which the statute denounces a felony should charge that the acts constituting the crime intended to he charged were feloniously done, and if it fans to so charge a, conviction thereunder cannot stand.
    8. -: -: -: Bawdy House: Keeping Girl Under Eighteen. An information, attempting to charge that defendant was a keeper of a common bawdy house and permitted a certain female under eighteen years' of age to enter and remain in said bawdy house, without charging that said act was feloniously done, is bad under a statute which makes said act a felony, although the statute does not use the word “felonious” or “felo-niously.”
    Appeal from Buchanan Circuit Court. — Hon. W. G. Ellison, Judge.
    REVERSED AND REMANDED.

      Linn & Heffley and Elliott Spalding for appellant.

      Elliott W. Major, Attorney-General, and Charles G. Revelle, Assistant Attorney-General, for the State.
   EARIS, J.

The defendant, a woman, and the keeper of a common bawdy house in the city of St. Joseph, was prosecuted by information, duly verified, and filed by the prosecuting attorney of Buchanan county, under the provisions of section 4759, Revised Statutes 1909, for permitting a female under the age Permitting Girl House.61" BaWdy of eighteen years to enter into and remain in a common bawdy house. She was duly arraigned, pleaded not guilty, but upon a trial had by a jury she was found guilty and her punishment assessed at imprisonment in the penitentiary for a term of two years. Sentence was duly imposed in pursuance of said verdict, and,, after taking the usual steps of filing a motion for a new trial and a motion in arrest of judgment, an appeal was prosecuted to this court.

Defendant, by her motion in arrest, challenges the sufficiency of the information filed herein by the prosecuting attorney of Buchanan county. This information, omitting caption and formal parts, is as follows:

“Corry 0. Ferrell, prosecuting attorney within and for Buchanan county, in the State of Missouri, upon information and belief, and upon his oath, in- forms the Criminal Court of Buchanan county that on or about the 1st day of November, 1911, at said county, Minnie Dixon was the keeper and person in charge of a certain building then and there ordinarily used by the said Minnie Dixon as a common assignation house and common bawdy house, an'd the said Minnie Dixon then and there permitted one Edna Frampton, a female then and there under the age of eighteen years, to-wit, of the age of sixteen years, to enter into and remain in said common assignation house and common bawdy house, against the peace and dignity of the State.”

In the view which we take of this case it is not necessary to discuss any other questions raised

OPINION.

A reading of the information discloses the fact that it nowhere charges that the acts alleged to have been committed by defendant, or any of them, were committed “feloniously.” The word feloniously nowhere appears in the-information. While the statute upon which this prosecution is bottomed does not mention the word “felonious” or “feloniously,” yet it does say that the facts set out therein constitute a felony, and that they render the person doing them guilty of a felony, and liable to imprisonment in the penitentiary for a term not less than two years nor more than ten years. No other penalty is affixed by this statute save and except punishment in the penitentiary.

The rule that an indictment or information charging acts which are denominated felonies by the statute should allege that the act or acts constituting and going to make up the crime intended to be charged, should charge said acts to have been done feloniously, has been in force in this State for many years. ' There seems to be no holding otherwise. If an indictment or information does not so charge (and the information in the case at bar utterly fails to charge it), then such indictment or information has always been held in this State to be bad. .[State v. Feazell, 132 Mo. 176; State v. Gilbert, 24 Mo. 380.]

This view renders it unnecessary to consider the other questions raised. It results, therefore* that .this case ought to be reversed and remanded, and we so order. Brown, P. </., and Walker, J., concur.


author: 'WALKER, J.

text:
    THE STATE v. PETER McGAULEY, Appellant.
    Division Two,
    February 19, 1913.
    MOTION FOR NEW TRIAL: Overruled: No Exception: Appeal. The appellate court is precluded in any case from an examination of anything except the record proper where the hill of exceptions fails to show that any exception was saved to the action of the court in overruling the motion for a new trial. In such case if the record proper is regular and in due form the judgment must be affirmed.
    Appeal from St. Louis City Circuit Court. — Hon. Wilson A. Taylor, Judge.
    AFFIRMED.

      Thomas E. Mtilvihill for appellant.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    The record shows no exceptions were taken to the giving of instructions. Nor does the record show that any exceptions were saved to the action of the court in overruling the motions for new trial and in arrest of judgment. In such ease there is nothing for review here except the record proper. State v. Libby, 203 Mo. 598.
   'WALKER, J.

The appellant was indicted in the circuit court of the city of St. Louis, jointly with one William Sheehy, for grand larceny, for having stolen from said city a certain sum of money. The indictment embodied other counts dismissed by the State before the trial, and, therefore, not for consideration here.

Before the trial the State entered a nolle prosequi as to the defendant William Sheehy,'and upon appellant’s being arraigned and entering a plea of hot guilty, the trial proceeded. After hearing the evidence and receiving the instructions of the court, the jury returned a verdict of guilty against appellant of grand, larceny, and assessed his punishment at imprisonment in the penitentiary for a term of two years. Appellant filed his motion for a new trial, which was overruled. The court in due tune sentenced and rendered judgment against the appellant in accordance with the verdict and an appeal was regularly perfected to this court.

We have carefully examined the transcript, as well as the original bill of exceptions sent up by the clerk of the trial court upon application made here by counsel for appellant, and we find that no exceptions were- saved to the action of the court in overruling the motion for a new trial. We are,. therefore, precluded from an examination of anything except the record proper under the well. established rule that where a record shows that an appellant has failed to preserve by bill of exceptions any exception to the action of the court in overruling the motion for new trial, there is nothing- for the appellate court to review except the record proper. [State v. Libby, 203 Mo. 596; State v. Irwin, 171 Mo. 558.]

The indictment charges grand larceny in the usual form, and is not subject to objection. The record discloses the formal arraignment of the accused and a plea of not guilty. The trial of the cause by the jury conforms to the requirements of the statute. The verdict is in proper form, and was returned into court, finding the accused guilty as charged and assessing his punishment at imprisonment in the penitentiary for a term of two years. The judgment accords with the verdict and is not subject to objection.

No error appearing in the record proper, the judg- ' ment is affirmed. Brown, P. J.; and Paris, J., concur.


author: FARIS, J.

text:
    THE STATE v. GEORGE F. SOLON, Appellant.
    Division Two,
    February 19, 1913.
    1. RE-OPENING STATE’S CASE: After Demurrer. The trial court did not abuse its discretion in permitting the State, after a demurrer to the evidence was offered and before it was argued or any order was made in regard to it, to re-open the case and re-call a witness for further examination in chief.
    2. INSTRUCTIONS: Two Counts: For Conviction Under Both: Acquittal Under One. Where there were two counts in the in-’ formation concerning the same criminal transaction, and no election was asked or required, instructions which authorized the jury to convict under both were not prejudicial, if the jury acquitted under one count.
    3. GAMING TABLE AND GAMBLING DEVICE: Upon Which Cards Were Used1: Poker: No Proof of Cards. In the absence1 of a showing that the game of poker was played with cards, the court will not take judicial notice that poker is a game of chance. So that where the information charged that defendant set up and kept “a certain gaming table and gambling device, to-wit, a round table covered with cloth, upon which cards were used,” and there is no evidence that the game of poker alleged to have been played on the table was played with cards, or that chips or other gambling paraphernalia were used,' a demurrer to the evidence should be sustained, since it is not sufficient to show that a game of poker was played upon an ordinary hotel dining table and that defendant acted as “hanker” in said game and actually took a “rake-off” therefrom.
    4. -: -: Necessary Showing. In order to sustain a conviction under the second count of an information charging that defendant set up and kept “a certain gaming table and gambling device, to-wit, a round table covered with cloth, upon which dice .and cards were used,” where there was an acquittal under the first count which charged that the gaming table was “one crap table, commonly so called, upon which table dice were used,” the proof must show substantially: 1, that a table or other such appliance was set up, kept or furnished; 2, that cards, commonly called playing cards, were kept or furnished and used in playing games of chance; S, that money or property was bet on card games played on or with those appliances, either by players against each other or by players against thfe keeper or master, or by players on the side of the keeper or master; 4, that persons were enticed, induced or permitted to play such games on and with said devices; and, 5, that defendant had at the time under inquiry the care or management, or acted as master in charge, of such paraphernalia. And in view of an acquittal under the first count, charging a crap table and the use of dice, a conviction under the second count cannot stand without a substantial showing that cards were used, although the evidence tends to show that dice were used or “shot” and money was placed on the game.
    Appeal from Monroe Circuit Court. — Eon. William T. Ragland, Judge.
    EeVERSED AND REMANDED.

      J. E. Whitecotton and J. W. Wight, Jr., for appellant.
    (1) The court abused the discretion the law gives it in permitting respondent to re-open the case after the demurrer bad been filed challenging the sufficiency of the evidence. (2) There is no evidence to support the verdict and the peremptory instructions asked at the close of the case in chief should have been given. The table, as shown by the testimony in the case, is not a gambling device within the meaning of Sec. 475, R. S. 1909. State v. Etchman, 184 Mo. 193; State v. Mathis, 206 Mo. 604. (3) The demurrer should have been sustained, because there is absolutely no proof that the defendant in any way “set up and kept a certain gaming table and gambling device” as alleged in the indictment. The proof by the State shows that the table was a “round dining table, five feet in diameter, covered with cloth,” and with the other furniture in- the room was similar to the furniture in the other rooms of the hotel. The evidence for the State clearly shows that this room and all the furniture and fixtures therein was the property of Mrs. Solon, the defendant’s mother. The table within the meaning of the law was not “kept” by the appellant. (4) The court erred in refusing to give the instructions asked for by the defendant at the close of the State’s case and also at the close of all the testimony in the case and directing a verdict then 'and there in favor of the defendant. This instruction tested the sufficiency of the State’s evidence and it being short of the requirements of the law, the same should have been given.

      Elliott W. Major, Attorney-G-eneral, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) Where there is substantial evidence in the record to support the verdict, this court will not interfere — that is to say, this court will not convert itself into the triers of the fact, nor will this court undertake to weigh the evidence and settle the conflict that may appear therein. State v. Tetrick, 199 Mo. 104. (2) The instructions are in approved form and correctly state the law under the evidence in the cause. State v. Hall, 228 Mo. 456; State v. Mathis, 206 Mo. 610; State v. Etchman, 184 Mo. 193; State v. Lockett, 188 Mo. 418; State v. Rosenblatt, 185 Mo. 114.
   FARIS, J.

Prosecution under section 4750, Revised Statutes 1909, which comes up upon an appeal by defendant from the circuit court of Monroe county. The information is in two counts, the first of which charges defendant with setting’ up and keep- - , . . , I T t T T mg a certain gaming table, and gambling device, to-wit, “one crap table, commonly so called, upon which table dice were used.” But since defendant was acquitted upon this count.it need not be further referred to herein. The second count, omitting formal parts and caption, is as follows:

“And Ezra T. Fuller, prosecuting attorney of and within and for -the county and State aforesaid, upon his oficial oath aforesaid further informs the court that at and in the county of Monroe and State of Missouri, on or about the 9th day of December (A. D. 1911, and on divers other days prior thereto), George P. Solon did then and there unlawfully and feloniously set up and keep a certain gaming table and gambling devices, to-wit: A round table covered with cloth, upon which dice and cards were used, which gaming table and gambling devices were adapted, devised and .designed for the purpose of playing games of chance for money and property, and did then and there unlawfully and feloniously induce, entice and permit Edgar W. Guilford, Edward Crawford and other persons whose names are to this prosecuting attorney unknown, to be and play at and upon and by means of said gambling table and gambling devices, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State.”

Upon a trial had at the March term, 1912, of the said Monroe Circuit Court defendant was found guilty by a jury on the second .count and his punishment assessed at imprisonment in the county jail for a term * of six months. From this conviction, defendant, after filing motions for a new trial and in arrest, prosecutes this appeal.

The facts as. developed by the testimony seem fairly to be about as follows:

The defendant, a young man, of about the age of twenty years, is a son of a Mrs. Solon, who at the times complained of, was the keeper of a certain hotel in Monroe City, known as the Monroe Hotel. The build- wkich said'hotel was operated seems to have had three stories; the second and third of which, only, were used for hotel purposes. The defendant seems to have been acting for his mother as hotel clerk. As such clerk, during all the times mentioned in the testimony, defendant, when on duty, had charge of all of the guest rooms in this'hotel.

It will be noted that the information charges the offense to have been committed on about the 9th of December, 1911. It is in evidence that on the 9th day of December, 1911, one Dr. Guilford having occasion to see a Mr. Crawford, also a witness in the case, went to the Monroe‘Hotel, and ascertained that Crawford was in a certain room of the hotel. Guilford describes his meanderings in seeking Crawford as follows: “We went up a flight of steps to the hotel office; up another flight of stairs to the third floor; back through a hallway — the back portion of which was dark — through a dark room into another room, and in the northeast corner of the third story in the rear of the building. ’ There the witness saw the defendant with two other young men engaged in playing with dice for money. Two dice appear to have been used. Dice were being “shot” upon a table described by the witness as a ‘£ round dining-room table covered with cloth and about five feet in diameter.” The witness Guilford, after observing the game for a time, was asked by defendant to join therein, and ultimately did so. Being asked what the defendant was doing there at the time, witness Guilford replied: “He did just the same as the rest of the others, shot dice and pnt np his money on the game.” Some considerable money seems to have been bet by defendant and the other three persons in this game, which continued until some sort of a difficulty arose between the defendant and the witness Guilford which resulted in the game for the time being broken up.

Another witness Crawford, who seems to have been present at all the times complained of by the State in both counts of the information, testifying for the State touching the charges contained in each count, says: “Dr. Guilford came up and sat on the bed; sat there probably two or three minutes, something like that; I think I had the dice in my hand at the time; I lost out, as we call it, and doctor took the dice and shot four or five rolls, and what we call craps; he threw craps each time I think. The defendant won in those games; I don’t have any recollection of the defendant making any charges or taking anything for the ‘shots’ from those who participated in the game. I have no recollection of him making any charges on shots. I have been in that room other than on December 9, 1911; we played back in that room on that table with the defendant; he was, what we term, banking the game; taking a ‘take-off.’ ”

After offering the testimony of other witnesses, which testimony had reference largely to the location of the hotel, the rooms thereof and other matters not pertinent to this inquiry, the State announced that it rested. Thereupon the defendant filed a demurrer to the evidence in the form of an instruction to be given by the court to the jury that under the law and the evidence their finding on the second count of the information should be for the defendant. Before any action was taken by the court on this demurrer the State announced that it desired to withdraw its announcement of rest and recall witness Crawford. This the court permitted the prosecuting attorney to do, adding, as the record shows, that this action was taken “before any point was made or presentation of the matter,” except, as appears by inference, the mere filing of the demurrer.

Upon being recalled the witness Crawford again testified in substance as follows: “Q. Ask you whether you were ever invited to this room in question? A. I would not consider it a particular invitation, just in a way; defendant said he had ‘a little game up there once in a while, if I ever done the like come around,’ something to that effect. By ‘up there’ he had reference to up in the hotel. I believe I have played poker twice in that room in that hotel. Defendant was there each time; he was playing poker; he made change and took the take-off; this was sometime in December, 1911. I don’t remember the first time I went to this room; it has been so long I could not,recall who was there.”

The above is the substance of the testimony for the State so far as the facts are pertinent to this prosecution, and so far as they refer to the acts done by the defendant.

Defendant did not testify in his own behalf and called but one witness, his mother, whose testimony,, in the view we take of this case, is not pertinent, except the fact of .defendant’s age, which it seems to be conceded, was twenty years.

At the close of all the testimony defendant requested an instruction in the nature of a demurrer to the second count of the information. This request was refused, and the defendant properly saved his exceptions.

As stated heretofore, the jury acquitted the defendant on the first count and found him guilty on the second count of the information.

Many objections and complaints are made by learned counsel for defendant in Ms brief and in Ms assignment of errors therein.

I. Among other things, it is complained that the court erred in permitting the State, after having announced that it rested, to re-open the case and re-call for further examination the witness Crawford. We cannot agree with tMs contention. This was a matter resting in the sound discretion of the trial judge. He does not seem to have abused that discretion. Since the record shows that immediately after the announcement that the State had rested, although a demurrer to the count of the information under consideration was offered, yet no action had been taken by the court thereon; that the matter had not been presented by argument and that no orders touching the same were made. Taking the whole case it cannot be seen wherein defendant was prejudiced, and this point is ruled against the defendant.

II. The contention is made that the instructions given by the court were bad, but we are not furnished with any specifications showing wherein the same are defective, and a careful reading of them does not dis- close any defect for which tMs case should reverseq_ Jt win noted that the objections to these are leveled at the substance of - the instructions and not the failure of the court to give other instructions, to which his attention was not called by counsel. It is true that sometMng is said to the effect that the instructions given by the court authorized a conviction of defendant upon both counts of the information, and it is complained that this is error. 'The court might well have required the prosecuting attorney to elect, or failing in this should have given an instruction in substance that they might find him guilty of might acquit Mm on either count, according as they might find the facts, but that if they found him guilty upon the first count they should acquit upon the second and vice versa. If defendant had been convicted upon both counts the failure of the court tO' require an election (if one had been asked, as it was not), or the failure of the court to instruct the jury that they should convict upon one count only, as they might see the facts, and acquit upon the other, would have been reversible error (State v. Carrigan, 210 Mo. 351); but since the defendant was not convicted on the first count, but acquitted thereon and convicted only upon the second count, it cannot be seen how he was hurt by the doing of the jury without instructions of the very thing that he desired them to do with the aid of instructions. This point then must be ruled against defendant. [State v. Cannon, 232 Mo. l. c. 212.]

III. Complaint is made by counsel for defendant in effect that there was not sufficient testimony to go to the jury on the second count of the information. It will be borne in mind that defendant was acquitted on the first count and convicted on the second count. A timely demurrer to the evidence was offered as to the second count at the close of the State’s case and again renewed at the close of the whole ease by an instruction requested, in the nature of a demurrer. Both of these requests were refused by the court and proper excep-' tions taken by the defendant.

TMs point presents a serious question for consideration. The prosecution is under what is now section 4750, Revised Statutes 1909, a section which, first passed in 1825, has undergone many vicissitudes both by amendment and by construction. In considering this point of complaint it must be kept in mind that defendant stands convicted here of setting up and keeping ‘ ‘ a certain gaming table and gambling device, to-wit, a round table covered with clotb, npon which dice and cards were used.” Upon the charge in the first count of keeping “one crap table, commonly so-called, npon which table dice were used,” he was acquitted. So this first count and the questions involved therein are not before ns. The jury, by its verdict, plainly ' took the view that he had not set up or kept a craps table within the meaning of the statute. Then the question is, had he set up a gaming table %opon which cards were used so as to render him amenable to the denunciation of the statute?

We have looked in vain in the record for some testimony that the game of poker alleged to have been played npon the table in question, was played with cards. The proof simply shows that “a round dining table, covered with cloth, five feet in diameter and similar in all respects to many other tables used in this hotel,” constituted the plane surface upon which the game of poker was played. No chips or other paraphernalia, no cards even (though the information alleges the use of cards as an adjunct to the table) were offered in evidence physically, or orally shown by the evidence, to have been used in playing the game of ' poker. Beyond the fact that an ordinary table was used and that on one occasion defendant took a “rake-off” and “made change and acted as ‘banker,’ ” no facts are shown to bring defendant within the denunciation of the statute. The information charges the use of cards on the table mentioned therein. Having so charged, some proof ought to have been adduced, either orally or by offering the cards themselves in evidence, that cards were used on the table in playing the game of poker from which the defendant took the “rake-off” in the game of which he was banker. But there is not one word of proof as to the use of common playing cards or any other cards on this table. In the absence of a showing that the game of' poker was played with cards, we will not take judicial knowledge that poker is a game of chance. [In re Murphy, 128 Cal. 29; State v. Russell, 17 Mo. App. 16.]

It follows then, that the demurrer to the evidence on the second count ought to have been sustained, since to be clear upon the point, we hold that it is not sufficient in a prosecution under this section to show that a. game of poker was played upon an ordinary dining table, and that the defendant (though a clerk in the hotel in which the room was situate wherein the game was played) acted as banker in said game and actually took a “rake-off” therefrom. There should have been a showing as to the use of other paraphernalia; certainly to the extent charged in the information in order to bring defendant within the purview of the section under consideration.

We are not inclined, the history and patent original intent of this section being kept in mind, to any further invade the “twilight zone” separating the facts in the case at bar from an ordinary case of gambling. All of the cases wherein convictions for setting up and keeping poker tables have been sustained, were cases in which the proof showed that playing cards' and poker, chips were used, and usually that some specially prepared table (e. g., one having a canvas top, or having a slot leading into a box, called in the slang of the witnesses, a “kitty”) was a part of the paraphernalia, and that the acts involved continuity over some period of time beyond one single isolated act. [State v. Cannon, 232 Mo. 205; State v. Hall, 228 Mo. 456; State v. Mathis, 206 Mo. 604.]

We are not holding that a prosecution under this section as it now reads cannot be maintained for setting up and keeping the appliances and paraphernalia with which games of chance with cards can be played. But in order to sustain a conviction in such case the proof ought to show substantially (a) that a table or other such appliance was set up, kept or furnished; (b) that cards, commonly called playing cards, were kept or furnished and used in playing games of chance; (c) that money or property was bet on card games played on and with the above appliances, either by players against each other or by players against the keeper or setterup, or by players on the side of the keeper or setterup; (d) persons must have been shown to have been enticed, induced or permitted to play such games on and with the devices aforesaid; and (e) defendant must be shown to have had at the time under inquiry the care or management, or to have been acting as master in charge of such paraphernalia. Present the other requisites of evidence, it can be seen that selling chips or tokens to be used in the game played on and with such appliances, or taking a ‘‘rake-off” or per cent, on the games played, might be cogent evidence of care or mastery. So far the adjudicated eases, wherein poker tables constituted the devices complained of, seem to go, and no further. In the substantial absence of any of these elements, a conviction under this section should not be permitted to stand.

Clearly this section has been by construction strained almost to the breaking point. Passed originally in 1825, it denounced the use of gambling wheels and gaming tables and devices mechanically constructed — devices more intricate and perhaps even more unfair than a mere table or plane surface equipped with a pack of playing cards or a pair of dice. It has been twice amended by adding other appliances to those prohibited. In 1865 the word “keno” was added to it, and again in 1901 the words “slot machine, stand or device of whatever pattern, hind or make, however worked, operated or manipulated,” were added to this section. [Laws 1901, p. 130.] Prior to the last amendment, and in 1881, it was made a felony. [Laws 1881, p. 112.] Certainly it cannot he said that the addition in. 1901 of these other mechanical devices and appliances nsed for gambling had any (the least) effect to turn the intent of the statute toward the homely dining table and pack of cards. Bather from the nature of the added gambling devices it would seem that the legislative mind has been steadfast. '

It follows then that this demurrer to the evidence on the second count of the information should have been sustained.

IY. Instruction numbered 3 given by the court of its own motion is complained of. This instruction is as follows:

“The court further instructs the jury that before you can find the defendant guilty under either count in the information, you must find and believe from the evidence in the case beyond a reasonable doubt that the defendant set up and kept a gaming table of the kind and character as defined and explained in instructions one and two herein, but you are further instructed that under the law every person appearing or acting as master or mistress or having the care, use or management, for the time, of a gaming table or gambling device is deemed a keeper thereof.”

Learned counsel for defendant contend that this instruction is erroneous in that it does hot use the word “prohibited,” for the reason, as they urge, that section 4761, Bevised Statutes 1909 (which section deals with the matter of proof), refers to the gambling devices denounced by section 4750 as the gaming table, bank or device prohibited by that section, and because section 4761 uses the word “prohibited” counsel insist that the word ought to have been used by the court in this instruction. Even a casual reading of this instruction will show that it refers to other instructions 'given in the case, which other instructions define the kind of gambling device alleged to have been used; for the instruction requires the jury to find “that the defendant set up and kept a gaming table of the kind and character as defined and explained in instructions one and two herein.’'5

It follows from what has been said that this case must be reversed for the reason that under the law there was not sufficient testimony to go to the jury on the second count. It may be said in passing that unless the testimony can be made stronger in another trial than in the case at bar no necessity is seen for coiitinuing the prosecution. Aside from the error noted, for which we reverse the case, and the failure of the court to instruct that a conviction could not be had on both counts, the case was well and ably tried. Objection is made to the rulings of the court on the introduction of testimony. The case is singularly free from facts warranting this criticism.

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


author: WILLIAMS, 0. PER CURIAM.

text:
    THE STATE v. ALBERT G. BUTLER, Appellant.
    Division Two,
    February 19, 1913.
    1. TESTIMONY AT PRELIMINARY HEARING: Transcript Admissible by Defendant at Trial When Witness is Out of the Jurisdiction: Murd'er. The transcript of a witness’s testimony at the preliminary hearing on a criminal charge is admissible when offered in evidence by the defendant at the trial, upon a showing that the witness is not within the jurisdiction, that the State had opportunity to cross-examine him, that the subject-matter is material to the issues, and where there is no claim that the absence of the witness is by any procurement or connivance of defendant

      2. HOMICIDE: Provocation: Evidence. Evidence held, to disclose no provocation sufficient in law to reduce a homicide from murder to manslaughter.
    3. -: Reference to Defendant’s Letter Concerning Deceased’s Sister: Letter not in Evidence: Instructions. Where the evidence disclosed that defendant in this prosecution for murder had written a letter containing remarks about deceased’s sister which angered deceased’s family, hut neither the letter nor its contents was put in evidence, the defendant was entitled to have the jury’s attention called to the fact that the letter was not in evidence and that they should not consider it or any of its suggested contents, in passing upon the guilt or innocence of defendant, hut the trial court rightly refused an instruction, that the fact, if it was a fact, that just before the killing “the defendant stated that the statements contained in said letter were true, did not authorize or warrant the deceased . . . to attack or assault . . . the defendant,” etc.
    4. -: Refused Instructions: Points Covered by Others. There is no error in the court’s refusal in a criminal case to give instructions asked by defendant where the points in question are fully covered by other instructions given by the court.
    Appeal from St. Louis City Circuit Court. — Hon. Wilson A. Taylor, Judge.
    REVERSED AND REMANDED.

      Frederick A. MayJiall and Barclay, Fauntleroy, Cullen & Orthwein for appellant.
    (1) The court erred in holding the testimony of the absent witness, given on the preliminary hearing, was inadmissible. When a witness is absent from the jurisdiction of the court the testimony of such witness given on the same issue before the court'holding the preliminary examination is admissible when offered by the defendant. G-reenleaf on Evidence (16 Ed.), secs. 163-166; 2 Wigmore on Evidence, secs. 1364, 1375,1401; 5 Ency. of Evidence, 314, 883; State v. Riddle, 179 Mo. 297; State v. Rose, 92 Mo. 201; State v. Nicholas, 149 Mo. App. 126; State v. Brown, 132 N. W. (Ia.) 862. This testimony being offered by the defendant no question is presented involving the constitutional rights of the defendant. The offer of this testimony presents substantially the same question as if the defendant had taken depositions and offered to read them. Ex parte Wellborn, 237 Mo. 297; E. S. 1909, sees. 5173, 297; State v. Dnsenberry, 112 Mo. 292; People v. Bird, 64 Pac. (Cal.) 260; State v. Nicholas, 149 Mo. App. 126; Wigmore on Ev., sec. 1401b. The rule in regard to the admission of evidence given at a previous trial is the same in civil and criminal cases when the evidence is offered by the defendant. E. S. v. McComb, 5 McLean, 286; Parks v. Commonwealth, 63 S. E. (Va.) 463; Wigmore on Ev., sec. 1401b. It has been ruled by nearly all the appellate courts in this State that testimony given on a former trial in a civil case may be received if the witness is cut of the jurisdiction of the court, or cannot he found after diligent search. Scovell v. Railroad, 94 Mo. ■86; Wine Co. v. Weippert, 14 Mo. App. 485; Franklin v. G-ummersell, 11 Mo. App. 314. The celebrated cases cited below are not in point on the proposition which we present, because in each instance the testimony was offered by the State and not by the defendant, and the question of constitutional right of the defendant was the question which controlled each ■decision. State v. McO’Blenis, 24 Mo. 402; State v. Baker, 24 Mo. 437; State v. Houser, 26 Mo. 440; State w. Moore, 156 Mo. 40. (2) The court erred in refusing to instruct the jury that they might find the defendant guilty of manslaughter in the fourth degree. The jury returned a verdict assessing the punishment ■of defendant at ten years, the lowest possible punishment for murder in the second degree. Therefore, -the failure of the court to instruct on manslaughter in the fourth degree is directly presented by the record in this case. The defendant specifically requested the court to instruct on manslaughter in the fourth degree and saved an exception because the court failed and refused to do so. We insist that the following principles of law are applicable to this point: (a) Where several persons act together in ill-will toward another, insulting language or conduct addressed to him by one of them is properly regarded as the act of all. Willis v. State, 90 S. W. 1100. (b) In this State it has been held that opprobrious words in connection with vexatious acts and conduct are sufficient provocation to reduce a resultant killing from murder to manslaughter if they are of such character as to excite the passions of the mass of men so as to enthrall their reason. State v. Garrison, 147 Mo. 548; State v. Grugin, 147 Mo. 39; State v. Hudspeth, 150 Mo. 12. (c) An assault too slight in itself to be of sufficient provocation may become such by being coupled with insulting words. State v. Elliott, 98 Mo. 150; State v. Howard, 102 Mo. 142; State v. Huds-peth, 150 Mo. 12; Burley v. Menefee, 129 Mo. App. 518. (d) An apparent attempt to make a deadly assault or an assault with a deadly weapon in connection with previous threats to kill, known to the person threatened, is sufficient to require a charge of manslaughter where he kills a person apparently about to attack him. State v. Heath, 221 Mo. 559;, Johnson v. State, 22 Tex. App. 206; Silgar v. People, 107 Ill. 563; People v. Palmer, 96 Mich. 580; Stacy v. State, 86 Si. W. 327; Swain v. State, 86 S. W. 335;. Thompson v. State, 32 Tex. Crim. Pep. 1; State v. Clay, 201 Mo. 679. (e) There may be an assault without personal injury if any unlawful attempt is. coupled with the present ability to commit a violent injury, and this although the assailant failed to commit the injury intended. Smith v. Smith, 33 Atl. 441;. Mailand v. Mailand, 86 S. W. 445; Bishop v. Eanney, 7 Atl. 220; State v. Smith, 80 Mo. 516; Norris v. Whyte, 158 Mo. 20; 1 Words & Phrases, “Assault.”'

      EUioit W. Major, Attorney-General, and Charles G. Revelle, Assistant Attorney-General, for the State.
    The noted case of State v. McO’Blenis, 24 Mo. 402, held that the deposition of a witness taken at a preliminary examination before a committing magistrate in the presence of the accused, may be received' in evidence on the trial upon the proof of the death of such witness. This decision is cited with approval in State v. Moore, 156 Mo. 1. c. 210, and the parallel cases of State v. Houser, 26 Mo. 431, and State v. Harman, 27 Mo. 27, are also cited. From the Missouri decisions we conclude that the rule is well stated in State v. Nicholas, 149 Mo. App. 127, where it is said: “The question in this State was settled in the affirmative that such evidence is competent only when the witness is dead, and in the negative that the evidence is incompetent when the witness is living, although beyond the jurisdiction of the State.” Appellant contends that the rule did not apply to evidence offered by the defendant, because the constitutional right that accused may be confronted by the witnesses against- him does not arise. But this contention is contrary to the holding in State v. Rose, 92 Mo. 201.
   WILLIAMS, 0.

Upon trial had in the circuit court of the city of St. Louis, defendant, under an information charging him with murder in the first degree, was convicted of murder in the second degree for the killing of Eugene Walsh on August 6, 1911, in said city, by shooting him with a pistol. The plea was self-defense. The punishment. was assessed at ten years in the penitentiary, and by proper steps defendant brings the case here for review.

The evidence for the State tended to show that the deceased, Eugene Walsh, at the time of his death lived with his mother, younger brother, Joseph, and two younger sisters, at 7017 Bruno street, in the city of St. Louis. He was about twenty years of age, strong and muscular, and weighed about one hundred and eighty pounds. Defendant was also a young man, and during the latter part of 1910 and early part of 1911 had roomed at the "VYalsh home, and had taken his meals at the Dion boarding house, No. 7145 Mc-Causland avenue, about 150 feet northeast of the Walsh house. A small plot of ground, lying east of the Walsh house, and running up to the south side of the Dion house, and which adjoined on the northeast the intersection of the two above-named streets, was vacant, so that the porch of the Dion house was in plain view from the Walsh house. During the time defendant roomed at the Walsh house he was attentive to Miss Nellie Walsh, sister of the deceased, taking her to church .and places of entertainment. After defendant ceased rooming at the Walsh house he went to North Carolina, and wrote several letters to deceased’s sister, but apparently his suit did not meet with favor, and his letters were returned to him. He returned to St. Louis about July 25, 1911, and visited the Walsh house, and attempted to establish friendly relations with Miss Walsh, but was unsuccessful. Deceased, at or about that time, told defendant to stay away from the house and not bother them any more. Defendant never came to the house after that time till the day of the tragedy.

On Sunday afternoon, August 16, 1911, at about 12:30 o’clock, Mrs. Walsh, mother of the deceased, saw defendant standing on the Dion porch, and directed her son Joe to go over and tell defendant to come to the Walsh house. Joe immediately went over to the Dion house and called to defendant to come down into the yard. Defendant accepted the invitation, and Joe asked him what he meant by making false statements in a letter to Frazer about his sister. Defendant denied making any false statements, bat said that everything in the letter was trne. Then Joe Walsh asked defendant to go over to the Walsh honse and prove the statements of the letter in the presence of his sister. Ahont that time Frazer, who was a boarder at the Dion honse and a roomer at the Walsh honse, came ont of the Dion honse, and the three walked together over to the Walsh honse, stopping in the yard in front of the porch. Abont this time two other yonng men, Medley and Maher, came np, and were standing in the yard near the other persons. Mrs. Walsh stood in the front door as they came np, and called her daughter, Nellie, and both came ont on the front porch. Defendant said, “Nellie, don’t have any hard feelings toward me. ’ ’ She replied, ‘ ‘ I hate yon. ’ ’ Defendant then said, “Yon know we were engaged for over twelve months.” She denied this, and Joe interrupted the conversation by saying to the defendant that what they wanted to know was whether the statements made in the letter were true. Defendant turned towards Nellie, and said, “Yon unfolded it, and showed me all.” Nellie-screamed, and said it was a lie. When she screamed, defendant retreated towards the street by walking backwards, going in a southeasterly direction. At this time, ’the deceased, who had been upstairs taking a bath, came down, and rushed ont on the porch towards defendant, ordering him off the premises. Deceased was dressed in an undershirt and trousers, and shoes, without sox, and was holding his trousers with one hand and motioning towards defendant with the other. Defendant continued backing away from the premises, and deceased continued walking towards him. When defendant had retreated a distance of twenty or twenty-five feet, and deceased had approached to within about four feet of him, with his arm and hand extended towards defendant, the latter drew a revolver and fired one shot. The hullet struck the deceased in the forehead, penetrating the brain, and cansing instant death. Deceased’s face was considerably powder burned, indicating close proximity to the pistol when it was fired. When deceased was shot he fell forward on his hands and knees, falling on the cinder sidewalk southeast of the Walsh residence. Defendant was arrested shortly after the shooting.

The testimony for the defense contradicted the State’s evidence as to the position of some of the persons at the scene of the shooting, and also as to the demeanor of deceased as he approached defendant just before the shooting. Defendant testified that on Saturday evening, the day before the tragedy, in the presence of himself, Mrs.' Walsh and James McHugh, out near a swing on the vacant lot, the deceased told him that the next time he saw him he was going to brain him. Mrs. Walsh testified that she did not hear deceased make the threat. The other living witness, McHugh, was not present at the trial. McHugh’s brother testified that the absent witness was then living in Cincinnati or in Alabama. Defendant’s subpoenas for witness McHugh were returned non est. This witness testified at the preliminary hearing before the committing magistrate that he heard deceased make the threat. A transcript of this evidence, showing that the witness had been cross-examined by the State, and the authenticity of which was admitted by the State, was, after showing first being made of above facts, offered in evidence by defendant, but the offer was refused, and defendant saved an exception. Defendant further testified that when Joe Walsh came to invite him down to the Walsh house, just prior to the shooting, he said, “I am going to break your damned head for the letters you'wrote about my sister,” but that later, and before going down to the Walsh house, Joe assured defendant that there would be no trouble if he went with him; that after the conversation with Joe Walsh and Nellie Walsh, at the front poreb, the deceased, Joe Walsh, Frazer and Medley, all started towards him, uttering threats of violence, and that he retreated, saying to them, “Stand hack — don’t come near me,” that when he reached the sidewalk he heard some one rushing upon him, and that he then turned and saw deceased rushing at him “in a violent and desperate way,” with one hand upraised, reaching for him, and the other concealed behind his body. He called out to deceased, “You have gone far enough — stand back,” but deceased continued towards him, and he then fired his pistol at deceased to stop the threatened attack, he believing that deceased would kill him.

Several witnesses testified that defendant bore á good reputation as a peaceable and law-abiding citizen in the community in which he lived.

Defendant complains of the rulings of the court, (1) in refusing to admit the testimony of witness Mc-Hugh given at the preliminary hearing; (2) in failing to instruct on manslaughter in the fourth degree; (3) in refusing certain instructions asked by defendant.

I. During the argument of this case before this court, a dispute arose between contending counsel as to whether the bill of exceptions showed that defendant had offered the testi-m0ny of witness McHugh and saved an exception to the court’s ruling thereon. The -bill of exceptions contained in the transcript of the record filed in this court did not so show. Thereupon the original bill of exceptions was, upon order made upon the clerk of the trial court, sent to this court, so that the facts concerning that feature of the record might be ascertained. We have carefully examined the original bill, and find that defendant did make offer of the . transcript of the testimony of witness McHugh given before the committing magistrate at the preliminary hearing, and saved an exception to the court’s ruling in excluding said testimony; so that we have squarely before us the following proposition: Is the transcript of the testimony of a witness given before the committing magistrate at the preliminary hearing on the same charge upon which the trial is later had, admissible in evidence when offered, by the defendant, upon a showing that the witness is not within the jurisdiction of the court, the State having had the opportunity of cross-examining the witness, the subject-matter of the testimony being material to the issues involved, and no claim made that the absence of the witness is by any procurement or connivance of defendant? After a careful review of the authorities, we have come to the conclusion that the question must be answered in the affirmative.

Section 5056, Revised Statutes 1909, provides that in capital cases the defendant must be accorded the right of a preliminary examination before a magistrate, and under section 5033, Revised Statutes 1909, in homicide cases, the testimony of the witnesses must' be reduced to writing. Section 5026, Revised Statutes 1909, provides that the witnesses produced at a preliminary hearing shall be examined on oath and in the presence of the prisoner. The statutes, however, do not expressly provide for the introduction or use of such testimony upon trial of the case. The English statutes, 1 and 2 Phil. & M., c. 13, sections 4, 5, and 2 and 3 Phil. & M., c. 10, enacted in the 16th century, were very similar to the present statutes of Missouri concerning examinations before committing magistrates. While the English statutes, contained no direct provision for admitting the testimony thus taken, yet by general practice it became a common-law usage that when the defendant was present at the preliminary examination,, and had enjoyed the privilege of cross-examination, the Crown could introduce such, testimony at the trial, upon a showing that the witness was dead. [2 Wigmore on Ev., sec. 1364; 1 Bish. New Crim. Proc. (4 Ed.), secs. 1198 and 1201.] The growth of the rule with reference to the admissibility of testimony in that form is well stated in the following quotation from the opinion in the case of United States v. Macomb, 5 McLean, l. c. 290:

“By the statutes of Philip and Mary, magistrates were directed and required to take the depositions of witnesses in certain criminal cases, and it has always been held, under these English statutes, that if the defendant were present at the taking of the deposition, and the witness were dead, it might be read on the trial as evidence. And yet there was nothing in the statutes from which it could be inferred that depositions were to be received as evidence. But the law having sanctioned them, it seems they became admissible upon general principles, provided the defendant was present, had the liberty to cross-examine, and the witness was dead.”

The power to take depositions at common law in criminal cases did not exist, but where the deposition was taken pursuant to some statutory authority, the common law rule was that it was admissible as to form, notwithstanding there was no statutory authority for its admission. And the fact that present statutory enactments do not provide for the admission of every form of deposition (as, for example, testimony taken at a preliminary hearing) is not to be construed as changing or restricting the common law rule with reference thereto. The rules of common law on the subject remain in force unless expressly changed by statute. [2 Wigmore on Ev., sec. 1411.] This rule, allowing the State to use evidence of that character and in that form, was recognized at an early date in this State in the leading case of State v. McO’Blenis, 24 Mo. 402, when the testimony of a witness given before the committing magistrate, under statutes the' same in effect as they exist today, was allowed to be introduced by the State, upon a showing that the witness was dead, and also in the face of the argument that the Constitution guaranteed to the defendant the right to be met face to face by the witness at the trial. The rule allowing the State to use such testimony only upon showing of death of the witness is evidently held within that restriction by reason of the constitutional requirement of allowing the accused a face-to-face meeting with the witness, which constitutional requirement was nothing more than a restatement of the common law of England. For, as was well stated by Judge LeoNaed in the case of State v. McOBlenis, supra, “It may as well be the boast of an Englishman living under the common law, as of a citizen of this State living under our Constitution,- that in a criminal prosecution he has a right to meet the witnesses against him face to face. ’ ’ And it was at a time when the common law made such guarantee to the accused that the rule was created whereby the Crown was permitted to introduce testimony of this character only upon showing the decease of the witness. While many States have enlarged the rule, and have permitted the prosecution to use testimony of this character in many instances when the witness is alive, yet the rule in this State as to the offer by the prosecution has remained as determined in the case of McO’-Blenis and by the case of State v. Houser, 26 Mo. 431. However, when the defendant makes offer of such testimony, and shows that the witness is not within the jurisdiction of the court, the constitutional guaranty of confrontation can be waived by him (State v. Wagner, 78 Mo. 644), and the evidence, otherwise material and competent, should be received. In the cases of State v. Riddle, 179 Mo. 297, and State v. Rose, 92 Mo. 201, the right of the defendant to have testimony in this form admitted is not doubted, and is by inference sanctioned, this conrt holding in those cases that the defendant did not make showing sufficient to come within the rule.

The Supreme Conrt of California, in the ease of People v. Bird, 132 Cal. l. c. 264, after discussing the limitations interposed against the State in offering evidence of this kind, very clearly states the rule with reference to the rights of the defendant as follows:

“But, upon the other hand, there is in this no restriction upon the rights of a defendant. The rule as to him is the same as it was before the adoption of the codes, and as it stood at common law. He may waive his right of confrontation, if he so desires, and introduce' in evidence the testimony of such dead or absent witnesses, whether that testimony was given at the preliminary examination or upon a former trial of the caused’

The transcript offered showed that witness Mc-Hugh testified that he heard the deceased make the threat to defendant on the Saturday evening preceding the killing, which occurred on Sunday. This testimony corroborated that of defendant on that point. Mrs. Walsh contradicted defendant’s testimony in that regard. Both Mrs. Walsh and defendant were interested witnesses. McHugh, so far as the record shows, was disinterested, and defendant was "entitled to have the jury consider his testimony concerning the former threat, the showing of threats being very material to the defense interposed, and it was error to refuse it.

II. Defendant next complains of the action of the court in not instructing on manslaughter in the fourth degree. A careful review of the eYjctenee faps to disclose any provocation sufficient in law to reduce the offense from murder to manslaughter. The evidence on the part of the State tended to prove murder in the first or second degree, and that upon the part of the defense, justifiable homicide committed in self-defense. The court properly refused to so instruct. [Wharton on Homicide (3 Ed.), sec. 172.]

III. Defendant next contends that the court committed error in refusing certain instructions tions requested by defendant. Refused instruction 3 is as follows:

“No. 3. The court instructs the jury that the fact, if it be a fact, that the defendant' wrote a letter to the witness, Frazer, which was of such a character as to offend the deceased, or other members of the Walsh family, and the fact, if it be a fact, that during the conversation in the Walsh yard, on Sunday, the defendant stated that the statements contained in said letter were true, did not authorize or warrant Eugene Walsh or any one there present to attack, assault, or attempt to attack or assault the defendant, and in passing upon the guilt or innocence of the defendant in this case it is wholly immaterial whether defendant wrote a letter to Frazer or not, and it is also immaterial whether the statements contained in said letter were true or false, or that defendant asserted they were true. There is no evidence before you as to what said letter contained, and the letter and its contents do not in any way affect the guilt or innocence of the defendant in this case.”

Reference to such letter necessarily occurred upon the trial, in relating the conversation that took place at or near the time of the killing. Defendant contends that the State’s attorney construed the letter and its suggested contents as a sort of moral justification of the attack made on defendant by the deceased, and that an effective slogan of the State was, “Poor Gene Walsh had a right to defend his sister’s honor. ’ ’ If such remark was made by counsel for the State (which does not appear in the record), the defendant, by proper and timely objection and exception, could bave protected Ms rights, but nothing of the kind appearing in the record, the matter is not before this court for review. Defendant was not entitled to an instruction in the above form, but under the circumstances of the case, and owing to the fact that the jury might give undue importance to the letter and its suggested contents, the defendant was entitled to have the court, by instruction, call the attention of the jury to the fact that the letter was not in evidence, and that the jury should not consider the letter, or any of its suggested contents, in passing upon the guilt or innocence of the defendant.

The remaining instructions offered by defendant and refused by the court relate to the questions of self-defense, threats and defendant’s apprehension of danger; but in so far as said instructions contain proper declarations of law "applicable to the case, the same were fully covered by the instructions given by the court, and such refusal was therefore not error. [State v. Maupin, 196 Mo. 164.]

The judgment is reversed and the cause remanded. Boy, G., concurs.

PER CURIAM.

The foregoing opinion by Williams, C., is adopted as the opinion of the court. All the judges concur.


author: EOT, C. PEE CUEIAM.

text:
    THE STATE v. BILL CAIN, Appellant.
    Division Two,
    February 19, 1913.
    .1. CONTINUANCE: Absent Witness: Diligence of Defendant: Concealed Weapons. An application for a continuance in a criminal case on account of absence of evidence, must show the facts • constituting diligence on the defendant’s part.
    2. -: Discretion of Trial Court. The question of continuance is largely within the discretion of the trial court and that court’s action will not be interfered with unless it appears that there has been an abuse of discretion.
    Appeal from Greene Criminal Court. — Hon. Alfred Page, Judge.
    AnFIRMEE

      A. W. Lincoln for oappellant.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
   EOT, C.

The defendant was convicted of carrying a pistol concealed on his person and sentenced to a year in jail and to pay a fine of one hundred dollars.

Ed Drew was the proprietor of a pool hall which was upstairs over the saloon of Joe Eose in the city of Springfield. Drew had been convicted of keeping a gambling house. There was gambling of some kind going on on the night of the alleged offense. The prosecuting witness, Fred Bateman, and the defendant got into a quarrel over the ownership of a dime which was lying on the billiard table and which had been bet by the defendant in some way. Bitter words and threats passed between them. The proprietor ordered them both out of the hall and they went downstairs. Bateman’s evidence was to the effect that the defendant was in his shirtsleeves, and that soon after going downstairs and while Bateman was near the stairs, the defendant passed on his way hack np the steps, and the witness saw about two inches of the pistol in defendant’s right-hand trousers pocket. Bateman then went and told police officer Stark that defendant had a pistol with the intention of shooting Bateman.

The evidence for both sides shows that when defendant went upstairs, the proprietor sent him out of the pool hall and down the steps. He was then out on the street fifteen or twenty minutes, going somewhere to see a show, and finding there was no show he returned to the saloon.

The evidence of the two policemen, McOlinton and Stark, was to the effect that as defendant was entering the front door of the saloon they were from eight to fifteen feet behind him and following him. "When they got through the front door, they found the defendant inside between the front door and the screen, knocking with the pistol on the door of a little side office. They arrested him and took the pistol from him. They testified that the pistol was not visible on the defendant while they were observing him on the street; and that the defendant did not have time after entering the front door of the saloon to pass through the screen into the saloon, get the pistol and return to the point where he was arrested.

The prosecuting witness Bateman was at the time of the trial under parole under conviction for burglary.

The evidence for the defendant was to the effect that when he left the pool hall and went downstairs for the pistol he did so at the request of one Will Simms, who was negotiating for its purchase. The pistol was in the keeping of Joe Rose in the saloon. On that subject the defendant testified as follows: “Will Simms was standing there and I picked up my money. He was in St. Louis running as an extra Pullman porter and I didn’t know Ms name when it was tried here. He says, ‘Will-, go down and get that gun if you are going to let me have it.’ I went down and got the gun, and he was at the foot of the stairs. He says, ‘I can’t give fifteen dollars for that gun.’ I says, ‘I won’t take a cent less,’ and I turned around and went on upstairs. When I got to the turn of the steps, where the steps turn, I met Mr. Drew. He says, ‘Fred Bateman ain’t up here. I put Mm downstairs.’ He says, ‘What is that you got in your hand?’ I says, ‘That smoke wagon of mine.’ He says, ‘Give me that.’ I says, ‘All right; take it down and give it to Joe Rose.’ ”

According to the testimony of Drew and the defendant, the pistol was handed to Drew by the defendant to be taken downstairs and given to Rose. When the defendant came hack from the street to the saloon, according to the evidence for the defendant, he passed through the screen doors into the saloon, where there were a great many customers; found Drew there, who said to him, “Do you want me to hand him the gun, or do you want to hand it to him?” to which the defendant answered, “I says, ‘I will hand it to him.’ There were too many people at the bar to hand it over the bar and I walked around, to the office door and knocked on it and McClinton grabbed me and the gun too.”

Drew and Rose both corroborated the defendant on the point of his getting the pistol from Drew in the saloon for the purpose of turning it over to Rose. The defendant testified that he first got the gun from Rose and went upstairs in order to sell it to Simms. He asked Simms fifteen dollars for the pistol and Simms declined to buy.

Ferd Waddell, a witness for the defendant, had been twice in the penitentiary.

The biography of the defendant as given by himself is as follows:

“Q. How many times have you pleaded guilty and been convicted1? A. I think I pleaded guilty once to jumping a train and they got me hooked up once on a license. Q. How many times have you been convicted? A. Two or three times for having little fist fights. Q. What else have you been convicted •for? A. A man swore false on me once that I stole a shovel while I didn’t. Q. What did they give you? A. A dollars and costs. Q. Never was convicted of a felony? A. What do you call a felony, carrying a gun? Q. Never been in the penitentiary? A. No siree, boss. Never seen but one or two. Q. Ever convicted for stealing? A. Yes, when Roscoe Patterson was prosecuting attorney first. Q. You were convicted for fighting? A. Yes, when a man rolled a firecracker under my dog, for hitting a man, and once got into some trouble with old man West over some watermelons. Q. You never was arrested for stealing chickens? A. No, sir, I go buy them when I want them.”

• The cross-examination of Rose tended to show that he regarded the defendant as a good customer of ' his saloon.

Before the beginning of the trial, defendant made application for a continuance on account of the absence of William Simms, alleging that he expected to prove by Simms that he,'Simms, was trying to purchase the gun from the defendant on the night of the alleged offense, and that such fact was' the reason defendant had the gun in his possession. The only efforts made by defendant to procure the attendance of said Simms so far as the application shows were as follows: £ ‘ Defendant states that he has made effort to locate the above named William Simms, but has failed to get him, as he is not in the State; that his residence is in St. Louis, Missouri, and that he can he had by the next term of this court. Defendant states that he has used due diligence in trying to locate William Simms and for Mm to be present at tMs trial.”

Tbe application for continuance was overruled. Tbe jury were fully instructed on tbe law of tbe case, including tbe question of tbe presumption of-innocence, of reasonable doubt, and of tbe credibility of tbe witnesses. No objections or exceptions were made to any of tbe instructions except tbe second and third, wMcb were as follows:

“Although you may find and believe from tbe evidence that tbe defendant, Bill Cain, at tbe time and place as alleged in tbe information, bad in bis possession a pistol, yet, unless you further find that be bad said pistol concealed upon or about bis person, you will find the defendant not guilty.
“You are instructed that you are to receive and consider tbe evidence offered to tbe effect that tbe defendant has been convicted of tbe crime of petit larceny and of fighting and of any other offense which you may find from tbe evidence tbe defendant has been convicted, solely as tbe same may affect bis credibility as a witness, and you should not consider such evidence as bearing upon tbe question of bis guilt of tbe offense for which be is now on trial, nor should you allow such testimony to influence you against him in this case.”

There is no error in overruling tbe application for a continuance. Section 5204, Revised Statutes 1909, provides that the application must show “what diligence, if any, has been used m the premises by tbe defendant.” Tbe application says: “Defendant states that be has used due diligence in trying to locate William Simms and have him present at this trial.” That is not a statement showing what diligence was used. Tbe application should show tbe facts constituting diligence. It is for tbe court to say whether such facts are sufficient to show due diligence. The statute does not leave it to the defendant to determine whether he has used due diligence, but does require him to state the facts upon which the court shall decide the matter. The application does not show when the absent witness left the State, nor does it show whether the defendant knew of his intention to leave the State in time to serve him with a subpoena or to take his deposition. There is no statement that a subpoena was issued for him. Such an application is insufficient. [State v. Williams, 170 Mo. 204.] Furthermore, the real point at issue on the trial was whether, after going back up into the pool hall with the pistol, the defendant turned it over to Drew and then went out on the street and to the place of the show and back to the saloon without having the pistol, and then went into the saloon, met Drew, procured the pistol from him, and attempted to turn it over to Rose; or whether, as contended for by the State, he had the pistol on him from the time he last left .the pool hall until he returned to the saloon. On that question the evidence which it is claimed the absent witness Simms would furnish would be of little importance-. Whatever motive the defendant may have had for taking the pistol up into the pool hall, whether to sell it to Simms or to shoot Bateman with it, it is conceded that he did take the pistol to the hall. The controversy as to whether he kept the pistol on his person until his return from the street to the saloon would be very little, if at all, affected by the alleged testimony of Simms.

The question of a continuance is largely within the discretion of a trial court, and the action of the 1 court will not be interfered with unless ^ appears that there has been an abuse of that discretion. [State v. Williams, supra, l. c. 207, and cases cited.]

We find no error in the record proper nor -in the submission or exclusion of evidence. The instructions were fair and full and we find no fault with them. Exceptions were taken by the defendant to none of them, except numbers two and three, and those were especially designed to guard and protect the rights of defendant.

As we have not been aided by a brief or oral argument on behalf of defendant, we have carefully examined the whole record and find it free from any errors, and the judgment is affirmed. Williams, G., concurs.

PEE CUEIAM.

The foregoing opinion of Boy, C., is adopted as the opinion of the court. All the judges concur.