text:
    THE STATE v. JOHN WELCH, Appellant.
    Division Two,
    November 21, 1905.
    1. RAPE: Corroboration of Prosecutrix. No corroboration of the testimony of the prosecuting witness as to the commission of a rape upon her is necessary, provided the jury believe her testimony to be true. [Following State v. Marcks, 140 Mo. 656.]
    2. -: Consent: Woman Asleep. Carnal connection had with a woman who is asleep is had without her consent, and constitutes rape under the statute.
    3. -: Consent After Penetration. When the offense of rape is completed by penetration, no subsequent submission or consent of the woman will avail the party who committed the crime,
    4. -: On Sleeping Woman: Sufficiency of Evidence. The evidence in this case is examined, and held sufficient to support a verdict finding defendant guilty of committing rape upon a sleeping woman.
    5. -: Punishment. The heinousnessi of the crime of rape is not mitigated by the fact that it was committed while the prosecutrix was asleep; and a sentence of thirteen years imprisonment for such crime is not excessive.
    6. PRACTICE: Failure to Instruct: No Exception. Defendant cannot be heard, in the appellate court, to complain that the trial court failed to instruct upon all the law of the case, when he does not call the court’s attention to its failure to do so at the time the instructions were read to the jury, and saves no exception on that account.
    7. -: Excluding Witnesses: Discretion. Where there is no evidence that the court knew that a witness for the prosecution was in the court room during the time that the rule excluding the witnesses was in force, or that the witness was intentionally violating the rule, with the knowledge and consent of the State’s representatives, it cannot be said that the court abused its discretion in afterwards permitting the witness to testify.
    Appeal from New Madrid Circuit Court. — Now. Henry G. Riley, Judge.
    Affirmed.

      Geo. H. Traylor and H. C. Riley, Jr., for appellant.
    (1) The court erred in overruling defendant’s demurrer to the State’s evidence at the close of the State’s case. State v. Patrick, 107 Mo. 147; State v. Burgdorf, 53 Mo. 65. (2) The court erred in permitting witness Dorrity, the son of the prosecutrix, to testify for the State over the objections of the defendant, after the witness had sat in the courtroom in the presence and hearing of the witnesses during the progress of the trial, after the witnesses were sworn and excluded- under the rule. (3) The verdict is the result of prejudice and passion of the jury against defendant, as will clearly appear from a careful examination of all the evidence in the case and from their excessive verdict of thirteen years in the penitentiary. State v. Primm, 98 Mo. 368; State v. Young, 119 Mo. 495; State v. Custer, 93 Mo. 242; State v. Packwood, 26 Mo. 340.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The evidence was not only sufficient to make out a prima facie case, hut the State’s evidence made out a strong case against defendant. Convictions of rape and of assault with intent to rape have been sustained in many instances where the evidence was much weaker than in the case at bar. State v. Huff, 164 Mo. 480; State v. Sanford, 124 Mo. 484; State v. Shroyer, 104 Mo. 441; State v. DeWitt, 152 Mo. 86; State v. Napper, 141 Mo. 406; State v. Hibler, 149 Mo. 478; State v. Hyatt, 179 Mo. 344. (2) Even if witness Dorrity had violated the rule of the court, the State should not have suffered thereby, unless it had been shown to the court that the State’s attorney was a party to the violation of said rule. State v. Sumpter, 153 Mo. 436; State v. Fan-non, 158 Mo. 149.
   BURGESS, P. J.

At the September term, 1904, of the New Madrid Circuit Court, upon an information theretofore filed by the prosecuting attorney of said county, defendant was convicted of the crime of rape upon Frances M. Dorrity, and his punishment assessed at thirteen years imprisonment in the penitentiary. The defense was an alibi. Defendant’s motions for a new trial and in arrest of judgment having been overruled, he appeals to this court.

The prosecutrix was a widow, forty-one years of age, her husband having been dead eleven years, and resided on her farm near Cushion Lake, in New Madrid county. She was the mother of four children, the youngest of whom was nine and the eldest sixteen years of age, all of whom were at home with her on the night of the alleged assault, except the eldest boy, Boss Dorrity. The defendant was a bachelor, thirty-eight years of age, and worked for and managed the farm of the prosecutrix seven or eight years in succession after the death of her husband, and about a year prior to the alleged rape he went to work in a blacksmith shop at Stewart, in Pemiscot county, about three miles distant from the prosecutrix.

On Saturday night, October 3, 1903, according to the testimony of the prosecutrix, she retired early and went to sleep. With her in hed was her little daughter, twelve years of age, and her son and Tom Yonng, a neighborhood boy, slept in an adjoining room. Between nine and ten o’clock she was awakened by defendant, who was on top of her and in the act of having sexual intercourse with her. She testified that she resisted all she could and told defendant to get off and go away, but with one hand he clutched her throat and placed the other over her mouth, which prevented her from screaming. She stated that she was a weak woman and in ill health, had not yet quite recovered from an attack of smallpox, weighed but one hundred and seven pounds, and the assault occurred during the period of menstruation, so that she did not have sufficient strength to successfully resist the defendant and shake him off. When the defendant got through and removed his hands from her mouth and throat she screamed, and defendant made his escape through a window near the bed. After getting outside the house he threw a club at the window breaking it in. Prosecutrix was well acquainted with defendant, and, as it was a moonlight night, she easily recognized him. As soon as defendant left she immediately awoke her children and Tom Young, all of whom were fast asleep, but she did not tell them what had occurred, "because it was not very nice talk to tell." She then put on her skirt and shoes and, accompanied by the children, went to the house of her nearest neighbors, Mr. and Mrs. Ike Grimes, living about a mile distant from her home. She arrived there between ten and eleven o ’clock and made complaint of the assault in full to Mrs. Grimes. After applying camphor to her injured throat the family retired, but prosecutrix was unable to sleep. The next day, Sunday, she made complaint to a justice of the peace, and defendant was arrested about noon that day. She denied ever having had any conversation with defendant after he was arrested and released on bail.

Mrs. Ike Grimes testified at the trial to the distressed condition of the prosecutrix and her complaint against defendant when she came to her house on Saturday night, October 3, 1903.

Alfred Kincaid testified that he lived between the home of the prosecutrix and the village of Stewart, and that on the night of October 3, 1903, between ten and eleven o’clock, he saw, recognized and spoke to the defendant, who was carrying a gun and lantern; that defendant was passing the home of witness and going towards Stewart in a direction from the house of the prosecutrix.

B. C. Grimes swore to a conversation he had with defendant about a month before the alleged assault, in which conversation defendant suggested that the witness could go to the home of the prosecutrix, go into her room and have sexual intercourse with her if he had the grit. Witness stated that about sundown on the evening of October 3, 1903, he was at defendant’s shop in Stewart and asked him to do some work for him, but that defendant declined, saying that he was going out; that defendant left the shop, going westward in. the direction of the house of prosecutrix, and took a lantern with him.

Another witness for the State, George White, testified that on October 3, 1903, he lived at Stewart and slept in the same room with defendant and others; that defendant did not retire until about midnight that night, and that he came into the room on tip-toe. He did not notice whether defendant had a gun or lantern with him. On the day of his preliminary examination defendant stated to witness that he could not prove where he was on any five minutes of the night of October 3, 1903. The testimony of this witness respecting the hour defendant retired was corroborated by Goah Dorrity, nephew of the prosecutrix, who slept in the same room with defendant and witness White. Boss Dorrity, a son of prosecutrix about eighteen years of age, also slept in the same room, but did not hear defendant come in that night. Witness testified that next day, after he had heard of the assault on his mother, he went home and saw the broken window in his mother’s room and a club lying near the window.

Defendant, testifying in his own behalf, denied making the alleged assault on Mrs. Dorrity, and stated that he was at work in his shop at Stewart from dark till between nine and ten o ’clock that night; that after getting through with his work he went to the lunch-room of Ed. Welbron and ate some oysters there, going from thence straight to his room and bed, his room being about one hundred steps from Welbron’s store; that at the time he retired he did not know whether all the boys occupying the same room had gone to bed, as he did not light the lamp; that he used a lantern to work by in his shop that night and that he was drilling some holes in blocks for a log wagon belonging to the Coombs ’ mill. He further testified that after he was arrested and released on bond, the prosecutrix came to him and wanted him to 'file her saw. Defendant denied having told George White or anybody else that he could not prove where he was on any five minutes of that night.

Ed. Welbron testified that he was engaged in running a grocery store and lunch counter at Stewart on October 3, 1903. He saw defendant at work in his shop between eight and nine o’clock that evening drilling holes in some iron pieces by the light of a lantern; that defendant worked till ten o ’clock and then came to his store, where he bought and ate some potted ham, and that after he had been in the lunch-room about twenty minutes defendant started for his room, saying he was feeling sleepy. Witness attended the defendant’s preliminary examination and heard George White say, in the presence of Bud Killian, that he was asleep and did not know what time defendant went to bed on that Saturday night. He heard prosecutrix testify at the preliminary that the defendant came in and went out of her house by the door, and that the assault was committed between ten and eleven o ’clock. Bnd Killian, testifying, corroborated Welbron’s testimony respecting tbe alleged statements of both witness White and the prosecutrix at the preliminary examination.

Tom Young, for the defense, testified that he was eighteen years of age and lived at the home of the prosecutrix on October 3, 1903. He and a son of the prosecutrix slept in a room adjoining her 'bedroom. Witness stated that after they retired, the prosecutrix went out for a drink of water. He was awakened that night by hearing the stroke which broke the window, and then the prosecutrix ran into his room and commenced hollowing. She told him to get up and get the gun, as somebody was trying to break into the house, but she did not say that anybody had been in the house. Prosecutrix, he said, was crying and appeared much scared. In a short time she had all to dress and go with her to Grimes’s house. .

In rebuttal the State introduced some witnesses who testified that Ed. Welbron had sold out and was not running a grocery store and lunch-counter at Stewart on October 3, 1903, and evidence was also introduced tending to show that the defendant was not in his shop that night. Two witnesses also testified that the testimony of the prosecutrix at the preliminary examination was the same as that at the trial in the circuit court.

The first assignment of error is with respect to the action of the court in refusing to sustain a demurrer interposed by the defendant to the State’s evidence-at the close of the State’s case. It is said by defendant that the demurrer should have been sustained and defendant discharged, because there was no testimony offered by the State which corroborated that' of the prosecuting witness with respect to the rape by defendant upon her. Hp to that time defendant had not testified in the case or denied, under oath, the charge against him, and, therefore, the testimony of the prosecutrix stood uncontradicted and made out at least a prima facie case, notwithstanding the assumption of his innocence; hence, the demurrer was properly denied. But even after he had testified in his own behalf and denied his guilt, it was still the province of the jury to determine the weight of the testimony without any corroborating evidence. It is true it was held in the case of State v. Patrick, 107 Mo. 147, that the prosecuting witness in a trial for rape must be corroborated, and when her testimony as to the perpetration of the alleged offense is explicitly contradicted by the defendant, thus creating an equipoise of oath against oath, the evidence will be insufficient to support a conviction; but that case, upon this point, was expressly overruled by the more recent case of State v. Marcks, 140 Mo. 656, in which it was held that no corroboration of the prosecuting witness as to the rape, by any other witness, was necessary in order to a conviction, provided the jury believed her testimony to be true.

Section 1837, Revised Statutes 1899, provides that: “Every person who shall be convicted of rape . . . by forcibly ravishing any woman of the age of fourteen years of age or upward, shall suffer death, or be punished by imprisonment in the penitentiary not less than five years, in the discretion of the jury.” To ravish a woman is to have carnal connection with her forcibly, and without her consent, or against-her consent; and, if the prosecutrix in the case at bar was asleep at the time, as testified by her, she was, of course, incapable of giving assent. Mrs. Dorrity testified that the first intimation she had of the defendant’s presence was after she had been awakened by him while he was in the act of having carnal intercourse with her. She stated in her testimony, “The first I knew he was in my room. He was in my bed and on me. It awaked me. He was committing rape the first I knew he was there.” Her children were all asleep at the time. She was not awake when defendant began to have sexual intercourse with her, but when she did awake his privates had entered her. She had on no clothing at the time except a nightgown. Her testimony was that she did all she conld to fight defendant off with her hands and that he placed one of his hands over her mouth and with the other grasped her throat, so that she was unable to scream. As soon as defendant got off her person and left, she awoke the children, put on her skirt and, accompanied by her children, went to the house of Mr. Grimes, a neighbor, where she arrived at eleven o’clock, and informed Mrs. Grimes of what had occurred. The next day she swore out a warrant for defendant, charging him with the offense of rape, and had him arrested.

On her cross-examination Mrs. Dorrity testified that she went to sleep on her back that night and that her nightgown was down and her feet and legs close together; that she slept soundly until awakened by defendant ; that her twelve-year-old daughter, who was in the same bed, was also in a deep sleep, and in fact did not awake until after defendant had left the house. She also stated that she did not tell her children, when she awoke them, what had occurred, for the reason that it was a delicate matter to talk to them about.

Under this uncontradicted testimony, was the defendant guilty of the crime of rape? The general, if not universal, rule is that if a man have connection with a woman while she is asleep, he is guilty of rape, because the act is without her consent. Thus, in Reg. v. Young, 14 Cox C. C. 114, a married woman was asleep in bed with her husband, when the prisoner got into the bed and proceeded to have connection with her. "When she awoke she at first thought he was her husband, but on hearing him speak and seeing her husband at her side, she flung the prisoner off and called to her husband, and the prisoner ran away. Held, the prisoner was guilty of the crime of rape.

In Commonwealth v. Burke, 105 Mass. 376, the defendant was convicted of the crime of aiding and assisting Dennis Green in the commission of a rape upon Joanna Catón. Tlie only question before tlie Supreme Court was whether the evidence would support a conviction. The evidence, the court said, was sufficient to authorize the jury to find that Green, with the aid and assistance of the defendant, on trial, had carnal intercourse with Mrs. Caton, without her previous assent, and while she was, as Green and the defendant both knew, so drunk as to be utterly senseless and incapable of consenting, and with such force as was necessary to effect the purpose. The court said: “We are therefore unanimously of opinion that the crime, which the evidence in this case tended to prove, of a man’s having carnal intercourse with a woman, without her consent, while she was, as he knew, wholly insensible so as to be incapable of consenting, and with such force as was necessary to accomplish the purpose, was rape. If it were otherwise, any woman in a state of utter stupefaction, whether caused by drunkenness, sudden disease, the blow of a third person, or drugs which she had been persuaded to take even by the defendant himself, would be unprotected from personal dishonor. The law is not open to such a reproach.”

In Payne v. State, 40 Tex. Crim. Rep. 202, a well-considered case, it is held that the act of copulation by a man with a sleeping woman, without her consent, is sufficient to constitute rape, although the force used be only such as is necessary to the mere act of copulation.

It is now well settled that, when the woman is bona fide asleep, a conviction of rape may be had. [Reg. v. Mayers, 12 Cox C. C. 311; Reg. v. Lock, 27 L. T. (N. S.) 661; Reg. v. Young, 14 Cox C. C. 114.]

But it may be said that the acts and conduct of the prosecutrix after she awoke and found the defendant upon her and “raping” her, as she said, were not such as to make it clear that she made use of all the means at her command to alarm those in the house; that she did not by using her voice or feet, of which latter she seemed to have had free use, make an effort to arouse her daughter who was sleeping in the same bed with her. In these respects she did not seem to act entirely as a woman of chaste character, jealous of her virtue, would have done. But she knew nothing about the assault and penetration of her person until she awoke and found defendant on her, at which time the penetration had already been made and the offense completed. After that, no submission or consent of the prosecutrix could avail the defendant.

As to whether consent, after penetration, by submission, non-resistanceor otherwise, is a good defense to the charge of rape, the authorities are not harmonious. In an elaborate note to Smith v. State, 12 Ohio St. 466, in 80 Am. Dec. 367, it is said: "Consent given after the assault, and before penetration, is a good defense to the charge of rape [Reg. v. Hallett, 9 Car. & P. 748]. But after the offense has been completed by penetration, no submission or consent of the woman will avail the defendant.” In Bishop’s New Criminal Law, sec. 1122, subdivision 6, it is said: "The true view is believed to be that, when the offense has been made complete by penetration, no remission by the woman or consent from her, however quickly following, can avail the man.”

In the case of State v. Cunningham, 100 Mo. l. c. 392, the court says: "It is doubtless true, as a proposition of law, that if consent is given after the assault and before the act is completed by penetration, it will not be rape,” thus clearly intimating that consent after the assault and penetration would not cleanse the defendant of guilt; so that whatever the prosecutrix said or did after the rape upon her was completed by penetration could avail the defendant nothing as a defense to the charge.

It is said for defendant that the court erred in failing to instruct the jury upon all the law of the ease, but it does not appear from the record that the court’s attention was called to its failure to do so, at the time the instructions were read to the jury, or that any exception was saved upon that account. [State v. Cantlin, 118 Mo. 100, and authorities cited.]

The defendant contends that error was committed in permitting one of the witnesses for the State, a son of the prosecutrix, to remain in the courtroom while other witnesses for the State were giving their testimony. There is, however, no evidence tending to show that the court knew that the witness was in the courtroom during the forbidden time, or that the witness was intentionally violating the order of the court with respect to the exclusion of witnesses, by and with the knowledge and consent of the representatives of the State; hence, the court committed no abuse of discretion in thereafter permitting the witness to testify as such in the case.

A final contention is that the verdict is the result of prejudice and passion of the jury against the defendant. There is nothing disclosed by the record to justify such an assertion.

The offense is one of the most heinous known to the law, the punishment for which is death or imprisonment in the penitentiary for not less than five years, in the discretion of the jury, and the crime is not mitigated by the fact that it was committed while the prosecutrix was asleep. Defendant had lived in the family for six years, in a house that he had built for Mrs. Dorrity while in her service. She knew him well, and as the moon was shining brightly at the time of the assault upon her, she could not possibly have been mistaken as to the identity of her assailant. Other circumstances adduced in evidence also tended to show he was there at the time indicated by the prosecutrix. That she was not mistaken in the man there can, we think, be no question, and this being true, the judgment ought not to be reversed upon the ground that the punishment imposed is excessive.

Finding no reversible error in the recox"d, we affirm the judgment.

All concur.


source: Caselaw Access Project

author: FOX, J.

license: Public Domain

text:
    THE STATE v. HARRY MORGAN, Appellant.
    Division Two,
    November 21, 1905.
    NO BILL OF EXCEPTIONS. Where no bill of exceptions is filed, and there are no errors in the record proper, the judgment will be affirmed.
    Appeal from Buchanan Criminal Court. — lion. B. J. Casteel, Judge.
    Affirmed.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
   FOX, J.

This is an appeal from a judgment of conviction, in the Buchanan County Criminal Court, of rohhery in the first degree. There is no bill of exceptions preserving the action of the court during the progress of the trial; hence, we can only review the record proper.

We find the information in this cause in due form, charging the defendant with the offense of robbery in such terms as have repeatedly met the approval of this court. The record discloses the formal arraignment of the defendant and a plea of not guilty entered; trial by a jury impaneled regularly in accordance with the provisions of the statute, and a verdict returned finding the defendant guilty of the offense as charged, and assessing his punishment at ten years in the penitentiary.

A careful examination of the record discloses no error; therefore, the judgment should be affirmed, and it is so ordered.

All concur.


author: GANTT, J.

text:
    THE STATE v. LAREW, Appellant.
    Division Two,
    November 21, 1905.
    1. BILL OF EXCEPTIONS: When Filed. All exceptions taken during the trial of a cause must be preserved in a bill of exceptions filed during the term of the court at which they were taken, or within such time after the expiration of the term as the court may grant.
    2. MOTION FOR NEW TRIAL AND IN ARREST: Functions. The office of a motion for new trial is to call attention of the trial court to rulings which constitute matters of exception taken on the trial, whereas, a motion in arrest reaches only such defects as are apparent on the record, and does not cover such defects as are required to be brought to the attention of the court. by exception.
    3. BILL OF EXCEPTIONS: Filed at Subsequent Term: Motion in Arrest. Where the evidence is heard, verdict rendered, and motion for new trial filed and overruled at one term of court, and no bill of exceptions is filed at s;.id term, nor permission asked nor received to file the same at any time subsequent to said term, a motion in arrest filed at the trial term and continued to the next term, when it is overruled, does not have the effect to carry exceptions to the matters in the motion for new trial to such subsequent term. And in such case there is nothing before the appellate court except the record proper.
    4. EMBEZZLEMENT BY AGENT: Indictment. The indictment set out in the statement in this case, which was a prosecution for embezzlement by an agent of money belonging to his employer, is examined, and held, not obnoxious to criticism.
    Appeal from St. Louis City Circuit Court. — Hon. Daniel G. Taylor, Judge.
    Affirmed.

      King & King for appellant.
    It is.a general rule that an indictment upon statutes, especially the most penal, must state all the circumstances which constitute the definition of the offense in the act to bring the defendant precisely within it, William v. State, 42 Miss. 328 ; State v. Latham, 73 Mo. App. 196. An indictment based upon a statute must contain and allege all the forms of expression and descriptive words which will bring the defendant precisely within the definition of the statute. State v„ Emerich, 87 Mo. 110; State v. Miller, 132 Mo. 297; Gaddy v. State, 8 Tex. App. 127. The general rule that it is sufficient to charge the offense in the language of the statute does not mean that it is sufficient to copy the statute into the indictment, or, even where a form is prescribed, to fill in the blanks. The indictment must make a specific application of the statute to the case in hand. State v. Oroker, 95 Mo. 389; State v. Terry, 109 Mo. 601. The indictment on its face must state the criminal nature and degree of the offense which are conclusions of law from the facts, and also the facts and circumstances which render the defendant guilty. State v. Krueger, 134 Mo. 273; State v. Terry, 109 Mo. 601; United States v. Cruikshank, 92 U. S. 558; State v. Miller, 132 Mo. 297; Mooer v. United States, 160 U. S. 268; State v. Williams, 42 Miss. 232.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) There is nothing before this court except the record proper. Defendant was tried and convicted at the June term, and on June 29, 1904. On the same day defendant filed his motion for a new trial; this motion was overruled on August 31, 1904. Thereupon defendant filed his motion in arrest of judgment; and on September 23rd said motion in arrest was continued till the next term of court. On November 2nd (being at the October term, 1904) defendant’s motion in arrest was overruled, and he was granted an appeal. No bill of exceptions was filed at the June term; neither was any time given in which to file such a hill. According to the numerous decisions of our courts, this failure on the part of defendant deprives the higher court of the power to review the proceedings of the trial court. State v. Miller, 88 S. W. 607; State v. Roderick, 70 Mo. 622; B adding Ass’n v. Refrigerator Co., 127 Mo. 501; Howes v. Holmes, 5 Mo. App. 81. (2) The indictment is in the approved form, and follows the language of the statute. It informed the defendant in a clear and concise way what he was charged with; it was, therefore, sufficient. R. S. 1899, sec. 1912; State v. Adams, 108 Mo. 208; State v. Lipscomb, 160 Mo. 125 ; State v. Cunningham, 154 Mo. 181; State v. Wissing, 187 Mo. 97.
   GANTT, J.

At the April term, 1904, of the circuit court of the city of St. Louis, the grand jury returned the following indictment against the defendant:

“The grand jurors of the State of Missouri, within and for the body of the city of St. Louis, now here in court, duly impaneled, sworn and charged, upon their oath present, that W. P. Larew, on or about the fifteenth day of April, one thousand nine hundred and three, at the city of St. Louis aforesaid, being then and there the agent, clerk, collector and servant of one Mary T. Clark (the said W. P. Larew not being then and there a person under the age of sixteen years), then and there by virtue of such employment and office of agent, clerk, collector and servant, as aforesaid, did have, receive and take into his possession and under his care and control certain money, to the amount and value of two thousand one hundred dollars, the same being then and there lawful money of the United States of the value of two thousand one hundred dollars, the money and personal property of the said Mary T. Clark, the employer of him, the said W. P. Larew, and that the said W. P. Larew, the said money then and there unlawfully, feloniously, fraudulently and intentionally did embezzle and convert to his own use without the assent of the said Mary T. Clark, the owner of said money, and with the unlawful, felonious and fraudulent intent then and there to deprive the owner, the said Mary T. Clark, of the use thereof; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.”

He was tried at the June term, 1904, and convicted on the 29th of June, 1904, and his punishment assessed at two years in the penitentiary. He filed his motion for new trial in due time, which was overruled on the 31st of August; on the same day the defendant filed a motion in arrest of judgment, which was continued until the next term of court for the want of time to determine the same. On November 2, 1904, at the October term of said court, the court overruled the motion in arrest, and thereupon sentenced defendant to the penitentiary in pursuance of the verdict. From that judgment and sentence defendant has appealed to this court.

I. At the threshold of the consideration of this appeal we are confronted by the insistence of the Attorney-General that there is nothing before this court for review except such matters as are raised by the motion in arrest filed at the June term, 1904. It appears from the transcript on file that the defendant was tried and all the evidence heard at the June term, 1904, and a verdict rendered on the 29th of June of said year; that his motion for new trial was filed in due time at said term, and was overruled on the 31st of August, 1904, at the same term. It further appears that no hill of exceptions was filed at said June term, 1904, nor did the defendant ask or receive permission to file the same at any time subsequent to the said June term. The question now presented is, will the fact that the defendant filed his motion in arrest at the June term, 1904, and that the same was continued until the October term, 1904, and finally disposed of at said October term, and a hill of exceptions, containing all of the exceptions taken at the June term incorporated therein was filed at the October term, preserve such exceptions for review in this court on this appeal? It has been the uniform practice in this State that all exceptions taken during a trial of the cause must be preserved in a bill of exceptions filed during the term of the court at which they were taken, or within such time after the expiration of the term as the court may grant.

In Riddlesbarger v. McDaniel, 38 Mo. 139, it was ruled that, where a motion for new trial was filed at the term the trial occurred and was continued over and not determined until the next term and no bill of exceptions had been filed at the trial term, such exceptions could be preserved in a bill filed at the term when the motion for new trial was overruled, though at a subsequent term of the court. That ruling has been constantly followed in this State. [Gray v. Parker, 38 Mo. 160; Henze v. Railroad, 71 Mo. 644; Richardson v. Agr. & Mec. Assn., 156 Mo. 407.]

But it will be observed that in this case the motion for new trial was filed and overruled at the June term. In the determination of this cause “it is essential to keep in view the respective offices of a motion for new trial and one in arrest of judgment. The function of a motion for new trial is to call the attention of the trial court to rulings which constitute matters of exception taken on the trial, whereas the motion in arrest reaches only those defects which are apparent on the record, and does not reach such as are required to be brought to the attention of the court by exception, such, for instance, as the giving or refusing of instructions, admitting or rejecting evidence, and like matters. It has been ruled again and again that matters excepted to at one term of court must be saved, by a bill of exceptions filed at said term. [State v. Ware, 69 Mo. 332; State v. Taylor, 134 Mo. 109 ; State v. Williams, 147 Mo. 14; State v. Miller, 189 Mo. 673.]

And the uniform rule has been in this State since the decision in State v. Marshall, 36 Mo. 404, that in order to have such exceptions reviewed in the appellate court there must be a motion for new trial which must appear in the bill of exceptions as overruled and an exception taken to the decision of the court thereon. [Ross v. Railroad, 141 Mo. l. c. 395, and cases cited.] It would seem too clear for argument, in view of the foregoing settled rules of practice, that if the defendant desired to have his exceptions taken to the action of the circuit court during the trial of said cause considered, it was incumbent upon him to save his exceptions to the overruling of his motion for new trial at the June term, 1904, and to tender his bill of exceptions containing all the matters to which he excepted at that term, and that the continuance of his motion in arrest, whose office is only to direct the attention of the court to errors apparent on the face of the record, did not have the effect to carry his exceptions to the matters in his motion for new trial over to the October term, and this being true, we must hold that in this State of the record there is nothing before us for review except the record proper.

II. The indictment in this case rests upon section 1912, Revised Statutes 1899, which reads as follows: “If any agent, clerk, apprentice, servant or collector of any private person, or of any co-partnership, except persons so employed under the age of sixteen years, or if any officer, agent, clerk, servant or collector of any incorporated company, or any person employed in any such capacity, shall embezzle or convert to his own use, or shall take, make way with or secrete, with intent to embezzle or convert to his own use, without the assent of his master or employer, any money, goods, rights in action, or valuable security or effects whatsoever, belonging to any other person, which shall have come into his possession or under his care by virtue of such employment or office, he shall, upon conviction, be punished in the manner prescribed by law for stealing property of the kind or the value of the articles so embezzled, taken or secreted."

The indictment in this case is assailed as insufficient. The overwhelming weight of authority in cases of embezzlement is that it is sufficient to charge the crime in the language of the statute. Of course, by this it is not meant that a pleader can just file a section of the statute without making those affirmative allegations necessary to bring the case within the purview of the statute. Applying these general principles to this indictment, it will appear that the defendant, on or about the 15th day of April, 1903, was then and there the agent, clerk, collector and servant of Mary T. Clark. As it names the individual, it is not essential to allege that she was a private person. The evident object of the statute was to designate the agent, clerk, etc., of two classes of persons, natural persons and artificial persons; if an artificial person, it would be necessary to charge either that the employer or principal was a corporation or association whose agent under this act had committed the embezzlement, but in this case, having alleged that the defendant was the agent of Mary T. Clark, it sufficiently appears that he was the agent of a private person. The indictment also negatives the fact that, he was under sixteen years of age. It is then averred that by virtue of his employment and office of agent, clerk, collector and servant the defendant received and took into his possession and under his care and control certain moneys to the amount of two thousand one hundred dollars, and lastly, that the said money of his employer, Mary T. Clark, then and there unlawfully, feloniously, fraudulently and intentionally did embezzle and convert to his own use, without the assent of said Mary T. Clark, with the unlawful and felonious intent then and there to deprive her of the use thereof. It will thus be seen that the pleader has applied the statute to the concrete facts in the case and fully advised the defendant of the charge and accusation against him. The criticism that the indictment does not charge that the embezzlement and conversion was without the assent of the master or employer, is without merit. The indictment had already charged the employment of the defendant by the said Mary T. Clark as her agent, and that he had taken her money into his possession by virtue of such employment, and when this was done the allegation that the embezzlement was without the assent of the said Mary T. Clark, the owner of said money, was but another way of saying, without the assent of his employer.

It is next insisted that the indictment is fatally defective in not charging that the intent of the defendant was to deprive the owner of her property, but instead thereof simply charged him with an intent to deprive her of the use thereof. In State v. Lentz, 184 Mo. 223, this section of the statute under which the defendant is indicted received a careful review and it was there pointed out that this section covered two classes of offenses, one which consisted in the doing of the act itself which is prohibited, and the other of doing certain things in respect to the subject-matter with the intent to do the prohibited act. The indictment in this case, as the information in that case, charges a violation of the first class of offenses, and it was not essential to the indictment to allege the specific intent. As further said in that case, “the embezzlement or conversion by an agent of property that came to his possession by reason of his employment is the essence of the offense denounced by the statute, and the act in itself is a wrong one, and if the commission of this wrongful act is established, it was not error for the trial court to advise the jury that they would be authorized in inferring the criminal intent. The criminal intent in this ease is not an intent to embezzle or convert to his own use property or money. The charge is the commission of the act itself, and not the doing of something else, with the intent to commit the act. The criminal intent necessary in this case is to deprive the owner of his property. The result of embezzlement is to deprive the owner of his property, and, in our opinion, it is not an illegitimate inference, where property is embezzled or converted, as contemplated by the statute, that the result of such an act was intended by the perpetrator of it.” In State v. Cunningham, 154 Mo. l. c. 179, it was said by this court: “No one can be convicted of a felony in the absence of an intent to do a criminal act, but such an intent in case of embezzlement may be inferred from a felonious or fraudulent conversion.”

In view of these expositions of the statute and of the rule of criminal pleading already noticed, this indictment would have been sufficient if the clause, “and with the unlawful, felonious and fraudulent intent then and there to deprive the owner, the said Mary T. Clark, of the use thereof,” had been omitted, but the objection that these words do not sufficiently allege an intent to deprive the owner of her property, is entirely too technical and hypercritical to justify this court in holding the indictment invalid. [State v. Pratt, 98 Mo. 492.]

There are various other technical objections to this indictment, such as that the indictment fails to allege the means by which, or the person from whom, the defendant received the money charged to have been embezzled. But this was wholly unnecessary, as has often been ruled. [7 Ency. of Pl. and Pr., 439; People v. Converse, 74 Mich. 478; State v. Adams, 108 Mo. 208.]

III. In a very exhaustive brief filed in behalf of the defendant, there is a discussion of the relation of an attorney and his client, and as to whether an attorney at law might lawfully retain his fees as any other bailee for services rendered in and about a bailment without being guilty of embezzlement, and whether the relation of attorney and client as to moneys collected by the attorney for the client is not that of creditor and debtor instead of principal and agent, and also whether under such circumstances the attorney and the client were not joint owners of the money collected. But in view of the fact that we have reached a conclusion that the exceptions saved on the trial and the evidence as to the particular character of the agency out of which this prosecution grew are not before us because no bill of exceptions was filed at the June term, 1904, of the circuit court of St. Louis, all these questions which grew out of the testimony in the case are not before us for decision at this time, and we are not called upon to express our opinion upon them. None of them reaches the question of the sufficiency of the record proper in this case, which is the only matter now before us. We have held the indictment sufficient, and we find no reversible error in the record proper in any other respect. It results that the judgment of the circuit court must be and is affirmed.

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


author: BURGESS, P. J.

text:
    THE STATE v. EDWARD BUTLER, Appellant.
    Division Two,
    November 21, 1905.
    COSTS: Criminal Case: Appellate Jurisdiction. A judgment for costs rendered against a defendant in a criminal prosecution is a proceeding wliicli is independent of the criminal case. And, hence, where an execution issues for the costs adjudged against the defendant, and motions to quash and for new trial and in arrest are overruled, and the amount of the costs is below the jurisdiction of the Supreme Court, the appeal should be taken to the proper Court of Appeals.
    Appeal from Boone Circuit Court. — Eon. E. W. Hm-ton, Special Judge.
    Transferred to Kansas City Court of Appeals.

      Thos. J. Rowe for appellant.

      Herbert 8. Hadleyf Attorney-General, and Rush G. Lake, Assistant Attorney-General, for the State.
   BURGESS, P. J.

On the 8th day of March, 1904, an execution was issued out of the office of the clerk of the circuit court of Boone county, against the defendant Butler for the sum of $507 for costs adjudged against him in said court on October 15, 1902, in a prosecution against him then pending in said court for felony. Thereafter he presented his motion in said court to quash said execution for grounds set forth in the motion. Thereafter, on the 27th day of February, 1905, the motion was overruled. Defendant then filed motions for new trial and in arrest, which being overruled, he saved his exceptions and appeals.

The State now presents a motion to transfer the cause to the Kansas City Court of Appeals for the reason that this court is without jurisdiction thereof.

There is nothing disclosed by the record which confers jurisdiction upon the Supreme Court, unless it be the fact that the execution for costs was issued in the name of the State, which would not of itself confer jurisdiction. It is not like a proceeding by scire facias upon a forfeited recognizance in a felony case, for that kind of proceeding is a continuation of the criminal proceeding, and not an independent proceeding. So far as the judgment for costs is concerned it is a finality until set aside or reversed, and in no way depends upon the criminal proceeding in which the costs accrued. The judgment for costs is not so connected with the criminal ease as to make it in any way auxiliary thereto, but is a proceeding under the statute to collect costs which accrued in a felony case and which were adjudged against the defendant. State v. French et al., 188 Mo. 448, was an appeal from the judgment of the circuit court of McDonald county reviving a judgment of that court rendered in favor of the State of Missouri against Oscar McNatt on the 10th day of August, 1900, for the sum of one hundred and twenty dollars and seventy-five cents, the costs accrued in the case of State of Missouri against Charles French and others. The judgment of revivor was rendered on the 8th day of August, 1904, against said McNatt as prosecuting witness in a proceeding before a justice of the peace, wherein he charged French et al. with breaking into and entering a flour mill of one J. J. McNatt. On a preliminary hearing before the justice, French et al. were committed to the jail of said county to await the action of the grand jury on said charges of burglary, and afterwards the grand jury ignored the bill and the defendants were discharged.

The Supreme Court refused to entertain jurisdiction of the appeal and ordered the record transferred to the St. Louis Court of Appeals, although the suit was being prosecuted in the name of the State. The amount involved, as in the case at bar, was not sufficiently large to confer jurisdiction upon the Supreme Court; hence, it was transferred to the St. Louis Court of Appeals. It seems clear that if the Supreme Court was without jurisdiction of the appeal in that case, it is, for the same reason, without jurisdiction of the appeal in this case.

It is, therefore, ordered that the record in this case be transferred to the Kansas City Court of Appeals.

All concur.


text:
    THE STATE v. LOUIS ROBERTS, Appellant.
    Division Two,
    November 21, 1905.
    NO BILL OF EXCEPTIONS. Where defendant files no bill of exceptions, there is nothing for review except the record proper, and if that is free from error, the judgment will be affirmed.
    Appeal from Buchanan Criminal Court. — How. B. J. Casteel, Judge.
    Affirmed.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
   GANTT, J.

At the adjourned June term, 1903, of the criminal court of Buchanan county, Missouri, the prosecuting attorney of said county filed an information duly verified charging defendant Louis Roberts with burglary by breaking into and entering a building in said county, the property of one T. C. Augustine, on the 5th day of October, 1903. The defendant was duly arraigned and entered his plea of not guilty, and at the same term he was put upon his trial before a jury and convicted and his punishment assessed at three years in the penitentiary. In due time he filed his motions for new trial and in arrest of judgment which were taken up and considered by the court and overruled, and thereupon he was sentenced in accordance with the verdict of the jury. At the same term he prayed an appeal which was allowed to this court and he was given leave to file his bill of exceptions during the next term of the court. He filed no bill of exceptions and the record was certified to this court on the 4th of August, 1905. There is nothing before us for review except the record proper and as the information is sufficient and no error appears in the impaneling of the jury or other proceedings of the court and the verdict and judgment are in proper form, the judgment must be and is affirmed.

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


text:
    THE STATE v. LEVI WILLIAMS, Appellant.
    Division Two,
    November 21, 1905.
    1. ASSAULT WITH INTENT TO KILL: Sufficiency of Evidence: Province of Jury. The evidence in this case, which was a prosecution for assault with intent to kill, was conflicting, hut it was the jury’s province to settle the conflict, and there being substantial evidence to support their verdict of guilty, the appellate court will not interfere.
    2. -: Second Information: Motion to Quash First. When a second information is filed, the force and vitality of an information previously filed is suspended, and no error is committed by the court in refusing to sustain a motion to quash the first information.
    3. -: Information: Sufficiency. The information, set out in the statement of the opinion, is held sufficient to charge an assault with intent to kill.
    4. -: -: Deadly Weapon. Where the assault is made by shooting with a gun or pistol or by stabbing with a knife, it is unnecessary to allege that the weapon is a deadly one, for it is recognized as such by the statute.
    5. -: -: Two Counts: Same Offense. Where, as in this case, both counts of an information relate to the same transaction and charge the same offense, no error is committed by the refusal of the court to compel an election.
    6. -: Verdict. In a prosecution for assault with intent to kill, a verdict which finds defendant “guilty, as charged in the information, of felonious assault,” is sufficient.
    7. -: Sentence. The judgment of sentence, set out in the opinion, is held to be in the approved form, and to contain a sufficient recital of all the ingredients essential to constitute a valid judgment.
    Appeal from Douglas Circuit Court. — How. John T. Moore, Judge.
    Affirmed.

      Burkhead & Clarke for appellant.
    (1) This court will reverse where there is such a lack of evidence as to indicate that the jury acted from prejudice, or the evidence is so weak that the necessary inference is that the verdict was the result of passion, prejudice or partiality, and not that calm weighing of the facts in evidence which should characterize the deliberation of a jury. State v. Plunt, 91 Mo. 490; State v. Lowe, 97 Mo. 549; State v. Glahn, 97 Mo. 679; State v. Primm, 98 Mo. 368; State v. Ballard, 104 Mo. 634; State v. Mahan, 138 Mo. 113; State v. Shackelford, 148 Mo. 493; State v. Crabtree, 170 Mo. 642. (2) Defendant ’s motion to quash the first information should have been sustained. Section 2522, Revised Statutes 1899, is mandatory. State v. Melvin, 166 Mo. 565. (3) The second count in the last information fails to allege that the alleged assault was made with intent to kill, or that it was made with a deadly weapon. State v. Hendrickson, 165 Mo. 262. (4) The verdict is not a general verdict; it is a special verdict, and it should have found the facts, one of which was the intent with which the alleged offense was committed, the intent being an ingredient of the offense, although not charged in the information. State v. Bray, 89 N. C. 480 ; State v. Curtis, 71 N. C. 56. (5) The judgment which is a part of the record proper in this case is not certain. It should show that it is considered by the court that the defendant is adjudged to be guilty of the offense as found by the jury. The judgment does not even find the defendant guilty of either charge set out in the information, or of any other charge. Gaither v. State, 21 Tex. App. 527.

      Herbert 8. Hadley, Attorney-General, and Rush C. Lake, Assistant Attorney-General, for the State.
    (1) The issue was squarely joined, and the jury found the defendant guilty. State v. Rollins, 186 Mo. 505. (2) The court did not err in overruling the motion to quash the first information when the second was filed. State v. Eaton, 75 Mo. 589. (3) The information upon both counts was sufficient, but as the court instructed the jury only under the second count, it alone demands consideration. This second count is challenged in appellant’s brief for the reason that the information fails to allege that the assault was made with intent to Mil, or that it was made with a deadly weapon. The intent is alleged in the language of the statute and in the manner approved by this court. The information charged that the assault was made with a gun. This was sufficient. State v. Hoffman, 78 Mo. 256; State v. Maguire, 113 Mo. 670. (4) The question of the form of the verdict has so recently been before the court that it is not regarded as necessary to discuss it, nor to cite authorities other than to call attention to the discussion in the following eases: State v. DeWitt, 186 Mo. 61; State v. Cronin, 88 S. W. 604; State v. McGee, 181 Mo. 312. (5) The judgment entry is substantially the form approved in Kelley’s Criminal Law, page 291.
   FOX, J.

This cause is now before us upon an appeal by defendant from a judgment of conviction of an assault with intent to Mil in the circuit court of Douglas county, Missouri. This prosecution was begun upon information filed by the prosecuting attorney of Douglas county, on the 16th day of June, 1904. On the 13th day of September, 1904, the prosecuting attorney filed another information charging the defendant, in two counts, with felonious assault, by shooting William Trammell with a rifle. At the September term, 1904, the cause was continued until the March term, 1905, at which term, after unsuccessful motion to quash the first information, and after the demurrer to the first and second counts of the second information had been overruled, the defendant pleaded not guilty. The charge as made in the second information, omitting caption, was as follows:

“Fred Stewart, prosecuting attorney for the county of Douglas, in the State of Missouri, upon his oath informs the court that Levi Williams, on or about the 9th day of June, 1904, in the said county of Douglas and State of Missouri, then and there feloniously, willfully, premeditatedly, deliberately, on purpose and of his malice aforethought, did make an attempt to kill and murder one William Trammell then and there being, and in said attempt and toward the commission of said offense and felony he, the said Levi Williams, then and there feloniously, willfully, premeditatedly, deliberately, on purpose and of his malice aforethought, with a rifle gun, being a dangerous and deadly weapon loaded with gunpowder and leaden ball which he, the said Levi Williams, then and there had and held, did shoot him, the said William Trammell, in and upon the left shoulder of him, the said William Trammell, with the intent then and there him, the said William Trammell, feloniously, willfully, premeditatedly, deliberately, on purpose and of his malice aforethought, to kill and murder, but the said Levi Williams did then and there fail in the perpetration of said offense, but through no fault of his, contrary to the form of the statutes in such cases made and provided, ánd against the peace and dignity of the State.

“And the prosecuting attorney aforesaid, upon his oath aforesaid, does further inform the court that Levi Williams, on or about the 9th day of June, 1904, in the county of Douglas .and State of Missouri, in and upon one William Trammell, feloniously and on purpose and of his malice aforethought did make an assault, and did then and there on purpose and of his malice aforethought feloniously shoot him, the said William Trammell, in and upon the left shoulder of him, the said William Trammell, with a certain rifle gun loaded with gunpowder and leaden ball which, he, the said Levi Williams, then and there had and held in both his hands, with the intent then and there him, the said William Trammell, on purpose and of his malice aforethought feloniously to kill and murder, against the peace and dignity of the State.” Which information was duly verified in accordance with the provisions of the statute.

On the 29th day of March, 1905, the defendant filed a motion to quash the first information, which was filed June 16, 1904, which motion was by the court overruled. On the. 30th day of March, 1905, there was filed a demurrer to the second information, which was filed September 13, 1904. The grounds alleged in the demurrer to the second information were as follows:

“1. Said count fails to charge any offense under the statutes of this State or the common law.

“2, Defendant demurs to the second count, and as grounds of demurrer to said count says that said count fails to charge that the assault was made with the intent to kill.”

The demurrer interposed by the defendant was overruled by the court. There was also filed on March 30, 1905, a motion asking the court to require the prosecuting attorney to elect on which count in the information he would proceed to trial. This motion was by the court denied and the trial proceeded upon the second information filed.

The charge is that the assault was committed on June 9, 1904, between nine and ten o ’clock in the morning and the testimony at the trial may thus be briefly stated:

William Trammell, the party charged to have been assaulted, testified that on June 9, 1904, he was “cutting sprouts for Mr. Davis,” in Douglas county, Missouri, and that without warning he was shot through the shoulder; that he looked in the direction from which the shot came and saw the defendant. “Q. What position was lie inf A. He was in the comer of the fence and had the gun through a crack, and when he fired he looked over the fence.” The prosecuting witness further testified that the defendant was about fifty steps from him at the time the shot was fired. The evidence disclosed that he was the only one who saw the defendant. There was testimony to the effect that on the following Sunday certain of the witnesses visited the scene and found evidence of a person having been recently standing in the fence corner in the position as described by the prosecuting witness. There was other testimony introduced by the State showing threats of violence on the part of the defendant at a previous difficulty. George Nelson, a witness for the State, also testified to a conversation had in the jail with the defendant, in which the witness states that defendant said to him in the course of the conversation, “If I was guessing at the gun that shot Trammell, I would guess it was .Jake’s old rifle, and I have killed many a squirrel with the gun that shot him.”

The defendant testified in his own behalf, and denied absolutely shooting the prosecuting witness, and further stated that he was not present at the time and place of the shooting, but at a different place. Wilson Williams, a witness for the defendant, testified that when the shot was fired he was some ten or fifteen corn rows from where Trammell was. This witness says that he heard the shot fired and that Trammell remarked that someone had shot him and says, “hold your horses.” This witness further stated that he stopped his horse and looked around to see what was the matter when the shot was fired and that he did not see anybody. He further testified that the prosecuting witness, Trammell, in a conversation with witness said that it was Shug Williams — said that Shug Williams was the man who pulled the trigger. Other witnesses were introduced by the defendant who testified that prosecuting witness, Trammell, told them on the same day and several days afterwards that he did not see anyone at the time of the shooting and did not know who shot him, but that he believed that Shug Williams pulled the trigger. There were other witnesses whose testimony tended to prove an alibi.

This is a sufficient indication of the tendency of the proof upon which this cause was submitted to the jury to enable us to determine the legal propositions presented. At the close of the evidence the court instructed the jury and confined its instructions to the second count in the information. The jury returned the following verdict:

“We, the jury, find the defendant guilty, ' as charged in the information, of felonious assault, and assess his punishment at two years in the State penitentiary.”

Prom the judgment of sentence entered in accordance with the verdict, the defendant, after the filing of his'motions for new trial and in arrest of judgment, in due time and form prosecuted his appeal, and the cause is now before us for review.

OPINION.

The record in this cause discloses numerous complaints of error on the part of the trial court as a basis for the reversal of the judgment in this cause. We will treat, the errors assigned and complained of in the order in which they are presented by learned counsel for appellant in their brief.

I. It is insisted by appellant that the verdict returned in this cause is unsupported by the evidence and that the jury reached their conclusion as to defendant’s guilt upon mere suspicion. After a careful consideration of the testimony disclosed by the record, all of which we have read in detail, we are unable to give our assent to this insistence. The prosecuting witness, whom it is charged the defendant assaulted, testifies in no uncertain terms that it was the defendant who shot him, and particularly details where he was and the manner of firing the shot which inflicted the wound. Now, while it is true there is testimony on the part of the defendant which contradicts this witness, and tends to establish the falsity of his testimony, yet to whom must we look under our system of jurisprudence to settle this conflict of evidence? There can be but one answer, and that is, the jury. This witness was before the jury, as well as all the other witnesses in the cause, and doubtless the jury applied all the tests as to their credibility and the weight to be attached to their testimony; it was the special province of the jury to weigh the testimony and determine therefrom the issues joined between the State and defendant. As has frequently been said by this court, the jury has opportunities not afforded the appellate court, for determining the credibilty of witnesses and the weight to be attached to their testimony, and when the verdict is supported by substantial evidence this court will not retry the cause upon the disclosures of the record and thereby usurp the province of the jury by undertaking to say upon which side the evidence preponderates. The evidence in this cause is no exception to the ordinary cases of this character; it is usually conflicting, and unless there is an absence of substantial testimony to support the verdict, or some indications from the record that the conclusion reached by the jury was the result of passion or prejudice, their verdict will not be disturbed on the ground of such conflict in the evidence.

II. It is next urged that the court committed error in its refusal to sustain the motion to quash the first information upon the filing of the second information by the prosecuting attorney. There was no prejudicial error in the action of the court upon the motion. The defendant could not be tried upon the first information, so long as the second one was pending unquashed. Under the provisions of section 2522, Revised Statutes 1899, it was a matter of no consequence to the defendant whether the court quashed or refused to quash the first information, for its force and vitality was suspended by the filing of the second information, and such suspension remained so long as there was no disposition of the second information. In State v. Eaton, 75 Mo. 586, the rule of construction announced in the cases of State v. Smith, 71 Mo. 45, and State v. Webb, 74 Mo. 333, of section 2522, supra, was departed from, and in State v. Melvin, 166 Mo. 565, the Eaton case was approved and the rule as announced in that case was followed, and it was thus stated: “There is nothing in the section to impair, in any manner whatever, the second indictment. Certainly a plea to the jurisdiction could not be maintained. The court does not lose jurisdiction of the cause, because a former indictment, unquashed, was preferred. The right of the State to find a second indictment against the accused for the same offense, is distinctly recognized by the statute. The accused may have the first quashed. The court might, without any motion filed by him for that purpose, quash the first indictment, but whether it is quashed or not, is a matter of no consequence in the prosecution of the second indictment."

III. The correctness and validity of the second information is challenged and appellant insists that the demurrer interposed to the second information should have been sustained and that the overruling of it constituted error. Upon this contention it is only necessary to say that both counts in the information are sufficient. While the first count contains some unnecessary allegations, yet, ignoring those and treating them as mere surplusage, enough remains to constitute a valid charge based upon section 1847, Revised Statutes 1899. The second count properly charges an assault with intent to kill. It is unnecessary, where the assault is made by shooting at another with a gun or pistol, or by stabbing with a knife, to allege that the weapon was a deadly one. Such instruments are treated and recognized by the statute as being deadly weapons. [State v. Hoffman, 78 Mo. 256; State v. Maguire, 113 Mo. 670.] The information sufficiently charges that the shooting of prosecuting witness was with the intent to Mil, and must be held good.

There is no merit in the complaint that the court refused to compel the State to elect upon which count of the information it would proceed to trial. Both counts of the information relate to the same transaction and charge the same offense and there was no error in the refusal of the court to compel an election. [State v. Rollins, 186 Mo. l. c. 505, and cases cited.]

IV. It is next urged that the verdict is insufficient in form and substance. The verdict recited that the jury finds the defendant guilty as charged in the information, of felonious assault, and we are of the opinion it is sufficient. The charge against the defendant is that the assault was made with the intent to Mil and when the jury finds him guilty of a felonious assault, as charged, all the essential elements of the offense are incuded in such finding. [State v. McGee, 181 Mo. 312; State v. Bohle, 182 Mo. 58; State v. Graham Smith, 190 Mo. 706.

V. Finally, the appellant challenges not only the form but the validity of the judgment of sentence entered of record in this cause. This judgment, omitting caption, is as follows: “The defendant being now asked if he had any legal cause to show why judgment and sentence should not be pronounced against him according to law, the defendant failing to show such cause, it is therefore adjudged and ordered by the court that the said defendant, Levi Williams, be confined in the penitentiary of the State of Missouri for a period of two years from this date, and that the sheriff of this said county, shall, without delay, remove and safely convey the said defendant to the said penitentiary, and there to be kept and dealt with according to law, and the warden of said penitentiary is required to receive and safely keep the said defendant in the said penitentiary until this judgment and sentence be complied with or until the said defendant shall be otherwise discharged by due course of law.”

This judgment entry is substantially in the form approved by Judge Kelley in his Criminal Law and Practice, and we are of the opinion that it contains a sufficient recital of all the essential ingredients necessary to constitute it a valid judgment.

We have thus given expression to our views upon every proposition urged by learned counsel for appellant in their brief. The evidence was sufficient to support the verdict; the instructions of the court fully covered the law upon every phase of the case to which the testimony was applicable, and finding no reversible error, the judgment of the trial court should be affirmed, and it is so ordered.

All concur.