text:
    THE STATE v. JAMES McDOWELL, Appellant.
    Division Two,
    November 24, 1908.
    1. LARCENY: Evidence: Drunkenness. Where defendant, a deputy marshal, charged with grand larceny, claimed he arrested the prosecuting witness for drunkenness and disorderly conduct, testimony by the State that he was not drunk or disorderly prior to his arrest, is competent.
    2. -: -: Display of Money. Where defendant, a deputy marshal, is charged with grand larceny of money from the prosecuting witness whom he arrested, testimony that said witness made a display of money in a saloon, just prior to his arrest, and the amount of such money, and how he carried it, is competent.
    3. --: Deputy Marshal: Significant Facts. Hodges, a very old man, several times in the late afternoon and early evening bought whiskey for others in a saloon, and displayed five twenty-dollar bills, none of which the barkeeper could change, and which he thereupon uniformly placed in a pocketbook carried in an inside pocket. He also had two or three dollars in change, and with this paid for the drinks. Early in the evening just after lie had stepped out of the saloon he was arrested by defendant, a deputy marshal, for drunkenness and disorderly conduct, as defendant says, and taken to the calaboose, and there defendant brandished his club, and, using much profane language, demanded his pocketbook, which was given to him, and defendant turned from the cell in which he had placed Hodges, to a light in the hall near by, with his back to Hodges and the other witness present, and opened the pocketbook and examined its contents for a short time. Then he called the other witness and told him to witness that the pocketbook contained only one twenty-dollar bill. Hodges insisted that it contained five such bills, and demanded the return of the money, and defendant returned the pocketbook, containing one such bill, to him. He is indicted for the larceny of $80. Held, that his testimony that he did not take Hodges before the mayor or any court, and released him at one o’clock of the same night, is significant, as is also his further testimony that when he asked for Hodge’s pocketbook he said to him, “There is no telling who I will throw in with you to-night,” yet nevertheless returned to him the pocketbook containing $20; and, the evidence is sufficient to support a verdict of guilty.
    Appeal from Phelps Circuit Court. — Hem. L. B. Wood-side, Judge.
    Affirmed.

      Herbert 8. Hadley, Attorney-General, and F. G. Ferris, Assistant Attorney-General, for the State.
    (1) The information is substantially in the language of the statute defining the offense; it fully informs defendant of the nature and cause of the accusation against him, and is sufficient. It is true that the information does not allege the value of the money, but when money itself is the subject of larceny its value need not be alleged or proved. State v. Brown, 113 N. C. 645; Turner v. State, 124 Ala. 59; State v. Helvin, 65 Iowa 289; McCarty v. State, 127 Ind. 223; 4 Elliott on Evidence, sec. 3135; R. S. 1899', sec. 2531. (2) (a) In three instances defendant objected to the action of the trial court in admitting evidence, but did not give the court any reason for the objection. An objection to evidence which does not specify any ground of objection is insufficient, if the evidence is admissible for any purpose. State v. Balch, 136 Mo. 103; State v. Finley, 193 Mo. 211. (b) Evidence as to Hodges being present in Gilmore’s saloon and having money there shortly before defendant arrested him was properly admitted for the purpose of showing that Hodges had the money which he claimed defendant took from him, and it was properly connected with other relevant circumstances tending to prove the crime and to identify defendant as the criminal. 4 Elliott on Evidence, sec. 3139.
   FOX, P. J.

On the 29th of February, 1908, the prosecuting attorney of Phelps county filed his information duly verified, with the clerk of the circuit court of said county, charging the defendant and one Sig Riley with the crime of grand larceny, alleging that on the — day of December, 1907, at said county, defendant and Sig Riley did steal, take and carry away eighty dollars in money, of the personal property of T. D. Hodges. At the March term of said circuit court, and on the 18th day of March, 1908, defendants asked for and were granted a severance. The prosecuting attorney dismissed the case as to Sig Riley. The defendant, James McDowell, the appellant in this cause, was duly arraigned, and entered a plea of not guilty, whereupon he was put upon his trial. The evidence developed at the trial upon the part of the State tended to prove substantially the following state of facts:

On the 16th day of December, 1907, T. D. Hodges, a farmer, living about five miles from Rolla in Phelps county, Missouri, appeared in Rolla about eleven o’clock in the forenoon. Mr. Hodges was nearly 79 years old at that time. He visited several places of business in Rolla, transacting business, and drew some money from the bank. About 3:30 p. m. he went to what is called “Whiskey Row.” At that place in Gilmore’s saloon, he treated his friends several times during the remainder of the afternoon and evening. Oh one or two occasions he furnished drinks to some of his friends without drinking himself. He was in a condition, as testified to by one of the witnesses, “drinking and feeling good, but attending to his own business.” Mr. Hodges, the prosecuting witnéss, testified that he was capable of attending to his affairs at all times that day. He admitted on the witness stand that he had been drunk on several occasions during his life, but denied that he was in the habit of getting drunk when he came to Rolla, and stated that he was not drunk or unduly under the influence of liquor on said 16th day of December, the date of the alleged larceny v The testimony further tends to show that on the day it is alleged this larceny was committed, when the prosecuting witness, Mr. Hodges, arrived at Gilmore’s saloon, he had on his person, according to his testimony, about one hundred and three dollars in money, consisting of five twenty-dollar bills, one or two one-dollar bills and some change.' The large bills he carried in a pocketbook and the small bills and change in a purse. Between eight and nine o’clock that evening the prosecuting ' witness treated some friends at Gilmore’s saloon two or three times, and each time, as testified to by several witnesses, exhibited his money, throwing out a twenty-dollar bill to pay for the drinks, and when the bartender could not make the change he offered small money in payment from Ms purse. Hodges, the prosecuting witness, testified that he spent about two dollars altogether in the saloon. The last time he paid for the drinks and exhibited his-money lie put the money back in his inside pocket, and immediately walked out of the door of the saloon upon the street. With the exception of the testimony as given by the defendant there was no evidence in the case tending to show that the prosecuting witness was drunk and disorderly. While he was drinking some, none of the witnesses who testified claimed that he was drunk with the exception, as heretofore mentioned, of the defendant, who claimed that he was drunk and disorderly. The defendant, James McDowell, at the time it is alleged this offense was committed, was deputy marshal and night-watchman at Rolla. The defendant had been in Gilmore’s saloon earlier in the evening. As Hodges walked away from the saloon the defendant arrested him, and with Sig Riley took Hodges to the city calaboose and locked him up. As soon as Hodges had been lodged in the calaboose the defendant demanded of him his money, and Hodges handed over to defendant his purse containing his small change. The defendant thereupon brandished his policeman’s club and demanded Hodge’s pocketbook and the roll of bills. Hodges handed to defendant the pocketbook, which, as Hodges testified, contained at the time1 five twenty-dollar bills. The defendant took the pocketbook, turned from the cell wherein Hodges was confined, to the light in the hall nearby, wiih his back to Hodges and the other witness present. Under the light he opened the pocketbook and appeared to be examining its contents for a short time. Turning back to Hodges, defendant called Sig Riley as a witness that the pocketbook contained one twenty-dollar bill and twenty-two cents.in change. The defendant then restored to Hodges the pocketbook, the twenty-dollar bill and twenty cents in change. Hodges testified that he insisted at the time that there was over one hundred dollars in the pocketbook at the time lie handed it to defendant, and that he insisted that defendant should restore the balance of his money. Hodges testified that an old coin he had gotten in Kentucky had been in the pocketbook when given to defendant, and was missing when the pocketbook was returned to him. To Hodges’s demand for his money defendant returned nothing but profane language. The testimony of Hodges was in many important particulars corroborated by Sig Riley and Will Martin, the latter being confined in a cell at the calaboose at the time for alleged drunkenness. Hodges was not released from the calaboose until after one o’clock in the morning. He was not taken before the mayor or any other court to answer for any charge for which he was arrested that night.

The defendant testified in his own behalf and stated that he arrested Hodges for drunkenness and disorderly conduct; that he called for Hodges’s money at the calaboose in accordance with the instructions and rules of the mayor. He stated that he kept no record of it; that he took Mr. Hodges’s monéy, counted it and returned it to Hodges, retaining none himself, and that twenty dollars and some change was all that he received from Hodges, and that he restored it to him. He stated that he had often arrested Hodges for drunkenness, but did not fix any time when he had done so, or name a person who was a witness to any such arrest. He denied that he had threatened Hodges with his club at the calaboose, but admitted that he had his club with him, and he also denied that he used improper or profane language to the prosecuting witness. He stated, however, that Hodges was not brought before the mayor or any other court to answer for any charge for which he was arrested that night. Defendant also stated that when he put Mr. Hodges in the calaboose ánd called for his money Hodges pulled but a barlow knife and then a pocketbook with jaws to it which he handed to him and that he counted the money in it. There was a dime and two nickels and two coppers in that bocketbook. He stated that he handed that pocketbook back to him and said, “ Old man, have you got any more money? There is no telling who I will throw in with you to-night.” The defendant then on the witness stand stated that Mr. Hodges reached his hand back and pulled out another pocketbook and handed it to him, and that he turned around to the, light and opened it and found therein a twenty-dollar bill, and handed it back to Mr. Hodges. He further stated that that was all the money the prosecuting witness had that he saw, and that he did not keep any of his money.

This is a sufficient statement to indicate the nature and character of the testimony upon which this cause was submitted to the jury. At the close of the evidence the court instructed the jury and submitted the cause to them, and they returned a verdict finding the defendant guilty of grand larceny, as charged in the information, and assessed his punishment at imprisonment in the State penitentiary for a term of three years.

A timely motion for a new trial was filed and by the court overruled. Sentence and judgment were duly entered in conformity to the verdict, and from this judgment the defendant prosecuted this appeal, and the record is now before us for consideration.

OPINION.

The appellant is not represented in this court, hence there is neither brief nor suggestion on file indicating the nature and character of the errors complained of in the motion for new trial. Under the provisions of the statute we have carefully analyzed the disclosures of the record with the view of ascertaining whether or not there was any substantial error committed by the trial court in the disposition of' this case.

I.

We have examined the instructions given by the court at the close of the evidence, and we see no necessity for burdening this opinion with a reproduction of them, and it will suffice to say that after a most careful examination of such instructions we find that they are in perfect harmony, both in substance and form, with precedents which have often met the approval of this court. The information was that of grand larceny, and the law applicable to offenses of that character is well settled, and the instructions of the court covered every phase of the case to which the facts developed at the trial were applicable, and required the jury to affirmatively find every essential element of the offense necessary to constitute the offense. The' instructions were fair and fully presented the case, and the judgment of the trial court cannot be disturbed upon that ground.

II.

The record discloses three or four, perhaps five instances where objections to the action of the trial court in admitting evidence were made. An examination of the record discloses that in the most of the objections no reason whatever was given why the testimony was incompetent or immaterial. But aside from this we have examined the testimony to which objections were interposed, and in our opinion the testimony was competent. This evidence consisted of inquiries as to the conduct of Mr. Hodges in the saloon; as to whether or not he was drunk or sober. This evidence was perfectly competent because the defendant was claiming that he arrested him for drunkenness and disorderly conduct. Further testimony was as to the money that Mr. Hodges displayed, the size of the roll of money he had in his hand, the number of bills, and the amount of the bills. It certainly will not be seriously contended that this testimony was not competent, for the reason that the charge in the information is for stealing money belonging to Mr. Hodges, and he testified that he had a certain amount of money, and it was quite essential if they could corroborate him by other witnesses, if he had. money, to show that fact. Evidence as to Hodges being present in Gilmore’s saloon, and having money there shortly before defendant arrested him, was clearly admissible for the purpose of showing that Hodges had money, which he claimed defendant took from him. There was no error in the admission of this testimony.

III.

The evidence in this case is sufficient to support the verdict of the jury. Mr. Hodges, the prosecuting witness,. testifies as to the amount of money he had in his pocketbook; he had given it to the defendant at his earnest request, and the defendant did not, according to Hodges’s testimony, return all of it to him, but kept about eighty dollars, and converted it to his own use. But aside from this, it is significant, if Mr. Hodges was arrested for disorderly conduct and drunkenness, that no charge was preferred against him. He was not taken before the mayor or any other city court to answer to such charge, and the defendant admits that he did not take him before the mayor or any other court for the pui'pose of having the prosecuting witness answer the charge for which the defendant claims he arrested him. Another significant fact, as testified to by the defendant, was that the defendant when he requested Hodges to give him his other pocketbook, as an inducement to Plodges to give it to him, stated that “there is no telling who I will throw in with you to-night,” yefc it appears from tlie defendant’s testimony that he simply took the pocketbook, examined the contents of it and returned Hodges the pocketbook with only twenty dollars - and some change in it, when Hodges testifies that there was at least one hundred dollars in it. Certainly the twenty dollars and some cents needed as much protection from any characters that he might put in the calaboose with the prosecuting witness as much as a larger amount. This at least is a very suspicious circumstance that the defendant was not acting in good faith, for if he was trying to preserve the prosecuting witness’s money he ‘ would have kept the pocketbook with the twenty dollars that he claims was in it, and returned it to him after he was released. In addition to this two other witnesses testified that when the defendant went to examine the contents of the pocketbook handed him by Hodges he turned his back to the witnesses who were present and the prosecuting witness in such a manner that they were unable to see as to what he did with all the contents of such pocketbook.

The testimony of the prosecuting witness and the defendant is directly in conflict, and it was the province of the jury to pass upon the credibility of the witnesses and the weight to be attached to their testimony. ' The defendant was tried in the city in which he was then acting as deputy marshal by a jury of the county in which such city is located. They returned a verdict of guilty and the judge presiding at the trial approved the verdict, hence we are unwilling, there being substantial evidence to support the verdict, to in any way disturb it.

The judgment of the trial court should be affirmed, and it is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    THE STATE v. WILLIAM R. COYNE, Appellant.
    Division Two,
    November 24, 1908.
    1. PERJURY: Insufficient Indictment: Belief. An indictment which charges that defendant, in his testimony before a grand jury, swore that he did not believe he had done certain things, and then goes on to charge that he did those things, but does not charge that he did at the time he testified believe he had done them, or that he swore falsely, is insufficient. The indictment in the perjury case must specifically charge that defendant did believe the things he swore he did not believe, or that he believed and well knew the statements made by him under oath were false.
    2. -: -: -: Recalling Fact. Where the indictment in the perjury case charged that defendant had stated under oath that he did not recall having visited one Ascher and soliciting money from him to be used in securing the enactment by the city council of an ordinance in which Ascher was pecuniarily interested, but charged that in truth and in fact he did so approach Ascher and solicited said money, it did not 'sufficiently charge him with perjury. The indictment does not charge that the matter sworn to b'y defendant was not that he had not done those things, but that he had falsely testified that he did not believe that he had done those things and did not recall that he had done them. The averment that, he did in fact approach Ascher and solicit money for a corrupt purpose, is not an averment that he testified falsely when he swore that he did not believe or recall' that he had done those things. To have made a good indictment it was necessary for the pleader to have averred that the defendant believed and well knew that the statements made by him upon oath to the effect that he did not believe and did not recall, were false. That is the meaning of our statute (Sec. 2039, R. S. 1899) which requires that the indictment for perjury shall contain "proper averments to falsify the matter wherein the perjury is assigned.”
    3. INSUFFICIENT INDICTMENT: Available on Appeal. An indictment which is defective for that it does not state facts sufficient to constitute a crime, may be assailed for the first time in the appellate court.
    4. PERJURY: Recalling Facts: Evidence: Failing Memory. Where the charge is that defendant swore falsely when he testified that he did not believe he did certain things and that he did not recall them, testimony that down to a date recently prior to the alleged false swearing defendant’s memory was wholly unreliable and that he was on the brink of paresis, is competent evidence — -not to show that he was either wholly or partially insane, or unable to appreciate the moral or physical consequences of an unlawful act, but to show that his memory was wholly unreliable and whether or not he did in fact recall what he had done at the time he swore he did not
    Appeal from St. Louis City Circuit Court. — Hon. George H. Williams, Judge.
    Reversed and remanded.

      Chester H. Krum, Thomas J. Borne and Horace L. Dyer for appellant.
    (1) The indictment does not state an offense. The allegations in the indictment are that the accused testified that he did not believe, or did not recall, etc., but of these there is no negation. There is no averment that the accused did believe, or did recall. State v. Faulkner, 175 Mo. 600. .(2) The exclusion of the evidence as to the possible want of memory on the part of the appellant was inexcusable error. (a) The case was tried upon a totally false hypothesis. The issue was not whether any person had' been visited by the appellant, but whether at the time when he was sworn, if he was sworn, he believed that he had visited such person, or recalled the fact of such visit. (b) Appellant was not charged with having denied that he had visited any person. Had such been the specific charge, his failure to recall, his indication of want of belief, might have been looked upon as evasions. The theory of the court’s procedure imported into the indictment a charge which the indictment did not make, (c) There was no issue of general character, like that of incapacity to appreciate the moral or physical consequences of an act. There was nothing on which to predicate a situation of confession and avoidance, over which the court seems to have become bewildered. The charge was that appellant falsely swore that he did not recall, or that he did not believe. To this he pleaded not guilty, (d) The evidence excluded tended to prove that, down to a date recently before the alleged false swearing, the appellant apparently stood on the brink of paresis, and that his memory was wholly unreliable. To say that evidence, such as was excluded, after having been admitted, did not bear upon the issue before the jury, is nonsense. Rarely has a more palpable lack of appreciation of the rights of a defendant, or the real issue in a given case, on the part of a trial court, been called to the attention of an appellate tribunal.

      Herbert 8. Hadley, Attorney-General, and Jolm Kennish, Assistant Attorney-General, for the State; Arthur N. Sager and G. Orrick Bishop of counsel.
    The indictment fully sets forth the substance of the alleged false oath, a legally organized grand jury, and the name of the foreman thereof before whom the oath was taken, the taking of the oath, and the authority of the foreman to administer such oath; that the testimony alleged to be false was material and the matter and issue under investigation, so that the court could determine upon such materiality; and, omitting from consideration that part of the indictment assigning perjury, the indictment fully complies with every requirement of the statute. R. S. 1899';.sec. 2039; State v. Gordon, 196 Mo. 185'; State v. Cave, 81 Mo. 450; State v. Huckeby, 87 Mo. 414. The indictment does not traverse and negative the alleged false oath by charging that in truth and in fact the said William R. Coyne did then and there believe and well know that he did at the time and place mentioned, in the first assignment of perjury, approach Henry Ascher and propose, for the fee of one thousand dollars, to assist in the passage of the ordinance. Instead of a traverse in the form aforesaid, the indictment, in assigning the perjnrv and negativing the alleged false oath, charges that in truth and in fact the defendant did visit Henry Ascher at the time and place mentioned and did propose for a fee of one thousand dollars to assist in the passage of the ordinance, etc., “as he, the said William R. Coyne, then and there well knew.” Is the assignment of perjury thus made insufficient to constitute a valid charge of perjury? (1) If the alleged false oath had heen a direct and absolute denial of the fact contained in the question asked, and had been so charged in the indictment, the assignment of perjury, as charged in the indictment under consideration, would, under the authorities, clearly have been sufficient, and that without-the concluding words “as he, the said William R. Coyne, then and there well knew.” Brown v. State, 57 Miss. 436; State v. Lea, 3 Ala. 605; 2 Chitty, O. L., 312, 320; 4 Went., 231; Roscoe’s Or. Ev., 684; 2 Russ., 542; State v. Raymond, 20 Iowa 585; 16 Ency. PI. & Pr., p. 341. (2) The knowledge of falsity required to be averred when, as in this case, the alleged false oath is as to the belief of the witness, is not knowledge of the falsity of the belief sworn to, but knowledge of the truth of the fact denied in the alleged false oath, and such knowledge at the time such oath was taken. In this ease, as alleged in the indictment, the defendant denied visiting Henry Ascher at the time and place and for the purpose alleged, by answering, “I do not believe I did.” If the-assignment of perjury had negatived the oath by averring that in truth and in fact the said William R. Coyne then and there well knew that he, the said Coyne, did visit the said Henry Ascher at the time and place and for the purpose mentioned, and that the said Coyne did in fact so visit the said Ascher, such assignment would undoubtedly be a traverse of the alleged false oath, and would be sufficient in law. Yet, no substantial distinction can'be made between the case of an assignment of perjury in which the knowledge of the truth of the fact at the time of the denial thereof, upon belief, is followed by the averment as to the truth of the fact itself, and the ease under consideration, in which the assignment first alleges the truth of the fact, denied upon belief in the alleged false oath, and alleges in connection therewith and immediately following the knowledge of the truth of the fact so denied, at the time of such denial, in the language, to-wit, “as he, the said William R. Coyne, then and there well knew.” The words last quoted, taken in connection with the averment immediately preceding, are susceptible of but one meaning, and that is, that when the defendant testified that he did not believe that he ever visited Henry Ascher at the time and place for the purpose mentioned, he had in fact so visited Ascher and well knew that he had when he so testified. In either case, the alleged false oath is traversed, and it is impossible to distinguish the two. forms, for the only difference is the order in which the truth of the fact denied and the knowledge thereof at the time of the alleged false oath are set forth in the assignment of perjury. State v. Terry, 30 Mo. 368; Kelley’s Cr. Law and Prac., sec. 704.
   GANTT, J.

At the December term, 1907, of the circuit court of the city of St. Louis, the defendant William R. Coyne was indicted by the grand jury for perjury. He was tried and convicted, and his punishment assessed at two years in the penitentiary. After ineffectual motions for new trial and in arrest of judgment, he was sentenced in accordance with the verdict and from that judgment he has appealed to this court. Omitting the formal parts the indictment is as follows:

“That a certain investigation and inquiry was then and there pending before said grand jury into all crimes and felonies committed and triable within the said city of St. Louis, and more particularly certain offenses of bribery and solicitation of bribes, and conspiracy to solicit, accept and receive bribes, alleged to have been committed by certain members of the House of Delegates of the Municipal Assembly of the city of St. Louis, and particularly one Ferd Warner and one Frederick W. Priesmeyer, who were then and there members of the said House of Delegates of the Municipal Assembly, and public officers of the city of St. Louis, in connection with certain bills, ordinances and measures which were or had been pending in said House of Delegates by which it was proposed by the city of St. Louis to give and grant certain rights, privileges and franchises to sundry and divers persons and corporations in said city of St. Louis.
‘ ‘ That in the course of said inquiry and investigation in the city of St. Louis, and on or about the 28th day of October, in the year one thousand nine hundred and seven, one William R. Coyne was duly summoned as a witness, and did then and there personally appear as a witness before the said grand jury in regard to the said inquiry and investigation then and there pending; that the said William Coyne was then and there duly sworn by the foreman of said grand jury and took upon himself his corporal oath; the said foreman, to-wit, one George T. Riddle, being then and there duly and legally authorized and empowered, and having competent authority to administer the said oath to the said William R. Coyne, and that then and there it became and was important, competent and material to the investigation and inquiry then and there pending before said grand jury to inquire and ascertain whether he, the said William R. Coyne, had ever approached any person, firm or corporation in the city of St. Louis and proposed to aid or assist in, procure and secure the passage of any ordinance, bills or measures pending in the House of Delegates or Municipal Assembly of the city of St. Louis, in which such persons, firms or corporations were interested, for a fee or money consideration and whether he, the said "William R. Coyne, had ever represented' himself as an agent of the House of Delegates of the city of St. Louis, qr any member thereof; and then and there he, the said William R. Coyne, upon his said corporal oath and before the said grand jury, did feloniously, falsely, corruptly, knowingly and willfully, depose and swear in substance to the effect following:
“That he, the said William R. Coyne, did not believe that he, the said William R. Coyne, had ever at any time approached any person, firm or corporation interested in the passage of any ordinance by the Municipal Assembly of the city of St. Louis and proposed to them, or either of them, to assist in the passage of such ordinance for a money consideration;
“That he, the said William R. Coyne, did not remember that he, the said William R Coyne, had ever at any time represented himself as an agent of the House of Delegates of the city of St. Louis, or of any member thereof;
“That he, the said William R. Coyne, did not think that he, the said William R. Coyne, had ever approached one Henry Ascher or any other person and proposed to him or them, or either of them, that he, the said William R. Coyne, would aid or assist in the passage of any ordinance pending in the House of Delegates in the city of St. Louis, if he, the said William R. Coyne, was given a fee;
“That he, the said William R. Coyne, did not remember whether he, the said William R. Coyne, had ever approached one Henry Ascher, or any other person, in the city of St. Louis, and proposed that for a money consideration he, the said William R. Coyhe, would aid iu aud attempt to pass any ordinance pending before tbe House of Delegates in tbe city of St. Louis;
“That he, the said William R. Coyne, did not recall that he, the said William R. Coyne, had ever at any time gone to any person or the representative of any firm or corporation in the city of St.' Louis with the specific purpose -of securing employment with reference to the passage of some ordinance pending in said House of Delegates in which such persons were interested;
“Whereas, in truth and in fact, he, the said William R. Coyne,' in the city of St. Louis and on or about the fifth day of September, A. D. 1907, visited one Henry Ascher and stated to said Henry Ascher that he (the said Coyne) had been sent to said Henry Ascher by one Ferd Warner (who was then and there a member of the said House of Delegates) to confer with said Ascher about and concerning a certain ordinance then and there pending in said House of Delegates wherein it was proposed to grant to said Ascher the right and privilege of erecting and maintaining an automobile garage, and he, tbe said William R. Coyne, did then and there propose to the said Ascher that he employ him (the said Coyne) and pay him a fee of one thousand dollars to aid and assist in the passage of said bill or ordinance then pending in said House of Delegates, as he, the said William R. Coyne, then and there well knew.
“And whereas, in truth and fact, he, the said William R. Coyne, in the city of St. Louis, and on or about the 14th day of September, 1907, visited one Charles C. Higham, the works manager of the American Brake Company, and talked with him about and concerning a certain ordinance then pending in the said House of Delegates, whereby it was proposed to grant to the St. Louis Merchants Bridge Terminal Railway Company the right and privilege to construct, maintain and operate certain spur tracks to 'reach the plant of the American Brake Company, and in which said ordinaii.ce the said American Brake Company was interested, and stated that it would be necessary for said American Brake Company to- pay thé sum of one thousand dollar’s, in order to secure the passage of said ordinance by said House of Delegates; and that unless such sum of one thousand dollars was so- paid. said ordinance would not be passed by said House of Delegates; and that for a fee of one thousand dollars (to be paid him, Coyne) he would get behind said bill or ordinance then pending in said House of Delegates and aid and assist in its passage; as he, the said William R. Coyne, then and there well knew.
. “And whereas, in truth and in fact, the said William R. Coyne, in the city of St. Louis and on or about the 28th day of September, 1907, visited one F. C. Bretsnyder, who was then and there the president and manager of the Bell Oil Company, and talked with him about and concerning a certain ordinance then pending in. said House of Delegates, whereby it was proposed to grant to the Wabash Railroad Company the right and privilege to construct, maintain and operate a switch or side track in said city of St. Louis, and in which said ordinance the said Bell Oil Company was interested, as such proposed side track was to- reach the plant of the said Bell Oil Company, and. he, the said William Coyne, did then and there propose to 'the said Bretsnyder that he (the said Coyne) be employed and paid a fee of one thousand dollars to aid and assist in the passage of said bill or ordinance then pending in said House of Delegates; as he, the said William R. Coyne, then and there well knew.
■“And whereas, in truth, and in fact, he, the said William R. Coyne, in said city of St. Louis, on or about the 28th day of September, 1907, visited one Williana P. Bohnenkamp, who was then and there the counsel and attorney of the Bell Oil Company, and talked with him about and concerning a certain ordinance then pending in the House of Delegates, whereby, it was proposed to grant certain side track and switch privileges to the said Wabash Railroad Company as aforesaid, and in which said ordinance the said Bell Oil Company was interested, as such proposed side track was to reach the plant of the said Bell Oil Company, and he (the said Coyne) did then and there propose to the said Bohnenkamp' that he, the said Coyne, be employed and paid a fee of one thousand dollars to aid and assist in the passage of said bill or ordinance then pending in said House of Delegates; as he, the said William R. Coyne, then and there well knew.
“And whereas, in truth and in fact, he, the, said William R. Coyne, in the city of St. Louis, and on or about the 15th day of September, 1907, visited one Joseph F. Liebke, of the C. F. Liebke Hardwood Mill and Lumber Company, and talked to him about and concerning a certain ordinance then pending before the House of Delegates, wherein it was proposed to vacate certain streets and alleys in the city of St. Louis, in which said C. F. Liebke Hardwood Mill and Lumber Company was interested as desiring to use for a lumber yard the ground so proposed to be vacated, and he, the said Coyne, did then and there propose to the said Liebke that he (the said Coyne) be employed and paid a fee of ten thousand dollars to aid and assist in the passage of the said bill or ordinance then pending in the said House of Delegates; as he, the said William R. Coyne, then and there well knew.
“And so the grand jurors aforesaid, upon their oath aforesaid, do say that the said William R. Coyne, at the city of St. Louis aforesaid, on or about the twenty-eighth day of October, in'the year one thousand nine hundred and seven, in the manner and form aforesaid, knowingly, willfully, corruptly, falsely and feloniously, did commit willful and corrupt perjury. Against the peace and dignity of the State.”

Of the alleged false oaths upon which the perjury is assigned only two were submitted to the jury, to-wit, that he, the said William R. Coyne, did not believe that he, the said William R. Coyne, had ever at any time approached any person, firm or corporation interested in the passage of any ordinance by the Municipal Assembly of the city of St. Louis and proposed to them or either of them to assist in the passage of such ordinances for a money consideration, and that he, the said William R. Coyne, did not recall that he, the said William R. Coyne, had ever at any time gone to any person or representative of any firm or corporation in the city of St. Louis with the specific purpose of securing employment with reference to the passage of some ordinance pending in the House of Delegates, in which such persons were interested. The assignment of perjury as to the first of said alleged false oaths is charged as follows: “Whereas, in truth and fact, he, the said William R. Coyne, in the city of St. Louis, and on or about the 5th day of September, A. D. 1907, visited one Henry Aseher and stated to said Henry Aseher that he, the said William Coyne, had been sent to Henry Aseher by one Ferd Warner (who was then and there a member of the House of Delegates) to confer with said Aseher about and concerning a certain ordinance then and there pending in said House of Delegates, wherein it was purposed to grant to said Aseher the right and privilege of erecting and maintaining an automobile garage, and he, the said William R. Coyne, did then and there propose to the said Aseher that he employ him the said Coyne and pay him a fee of one thousand dollars to aid and assist in the passage of said bill or ordinance then pending in said.House of Delegates; as he, the said William R. Coyne, then and there well knew.” Thus it will be observed that while the alleged false oath as ■ charged was in the one case “that he, the said William R. Coyne, did not believe that he at any time approached any person,” etc., and in the other, that he, the said William R. Coyne “did not recall that he had ever gone to any person,” etc., the assignment of perjury does not, in the first case, charge that the defendant did in truth and in fact then and there believe and well knew that he, the defendant, did at a certain time approach Henry Ascher, etc., and in the second case that the defendant did then and there recall and well knew that he had in the city of St. Louis on the 15th of September, 1907, visited one Joseph Liebke, but the said assignments negative the alleged false oaths by charging the fact to be true, which the defendant in his oath denied upon belief, and by charging the fact to be true, which in his oath the defendant testified that he did not recall, and at the close of each assignment concludes with the averment ‘1 as he, the said William R. Coyne, then and there well knew.”

Section 2039, Revised Statutes 1899, provides that “in any indictment for perjury, it shall be sufficient to set forth the substance of the offense charged, and by what court or before whom the oath was taken, averring such court or person to have competent authority to administer the same, and that the matter or testimony alleged to be false was material to a certain matter or issue named, without setting forth the particular facts showing its materiality, together with the proper averments to falsify the matter wherein the perjury is assigned.” This indictment sets forth the substance of the alleged false oath, a legally organized grand jury, and the name of the foreman thereof before whom tbe oath was taken, the taking of the oath and the authority of the foreman to administer such oath; that the testimony’alleged to be false was material and the matter and issue under investigation. But the question arises as to whether there were proper averments to falsify the matter wherein the perjury is assigned. The indictment does not traverse and negative the alleged false oath by ^charging that in truth and in fact the said William R. Coyne did then and there believe and well know that he did at the time and place mentioned in the first assignment of perjury approach Henry Ascher and propose for the fee of one thousand dollars to assist in the passage of the ordinance, but charges that in truth and in fact, the defendant did visit Henry Ascher at the time and place mentioned and did propose for a fee of one thousand dollars to assist in the passage of the said ordinance, “as he, the said William R. Coyne, then and there well knew.” In Brown v. State, 57 Miss. l. c. 436, it was said, “The averment in an indictment for perjury that the accused knew that the matter sworn to was false is necessary only where the oath is as to the belief of the affiant. In such eases, it is held that knowledge of the affiant to the contrary must be averred. [State v. Lea, 3 Ala. l. c. 605 and 606.]” In the case last cited, it was said, ‘ ‘ In the present case, the matter sworn to was not that the prosecutors committed a larceny, though the effect of the affidavit was to charge them with that crime, and thereby to commence a prosecution, but was, that the defendant believed that they had committed such crime. The averment in the indictment that no such crime was committed by them does not show that the defendant swore falsely. In order for the assignment to produce this consequence, it should also have been averred that the defendant well knew the contrary of that of which he stated his belief to be true. Such are the most approved precedents.” [2 Chitty, C. L., 312, 320; Roscoe’s Cr. Ev., 684; 2 Russ. 542.] “We are compelled,” said the court, “to resort to precedents as persuasive authority, in the absence of decisions upon this point, but independent of them, we think it clear from the reason of the thing that the assignment should form an issue upon the precise matter sworn to.” The object of the assignment of perjury is to falsify by averments in the indictment those parts of the defendant’s statements on oath which are intended to charge him on the trial with having committed the offense in question. And in negativing the defendant’s oath where he was sworn only to his belief, it should be averred either that the defendant did not believe what he swore, or that he believed and well knew the statements made by him, under oath, were false. At common law the form of this averment was, “All of which statements made by the said J. S., the said J. S. then and there well knew to be false.” [2 Whar., Precedents of Indictments, sec. 577.] In State v. Ah Lee, 18 Oregon l. c. 543, it is said that notwithstanding the statute in regard to indictments of perjury, “it is not intended by this to suggest that knowledge of the falsity of the matters sworn to is eliminated from this crime. If such knowledge was a necessary ingredient of the crime before the enactment of the Code, it is so still. The Code has wrought no change in the substance of the crime. It has only abolished useless forms.” In Cook’s Case, 1 Rob. (Va.) 729, “An indictment against an insolvent debtor for perjury in swearing to a schedule which did not discover certain debts owing to him, was held bad on demurrer for not averring that he well knew and remembered that the omitted debts were then justly due and owing to him. ’ ’ In that case the indictment charged that the defendant falsely and corruptly swore that the schedule contained, to the best of his knowledge- and. remembrance, a full account of bis estate, and such debts as were owing to him, when, in truth, certain debts owing to him (which were described in the indictment) “were not embraced or included in the said schedule so subscribed and delivered by the said Cook, and the said Cook then and there well knew and remembered that the said schedule did not contain the said debts.” But there was no averment that the defendant knew or remembered that the debts omitted in the schedule were owing to him. And the whole court held that this indictment was bad in not averring that the defendant at the time of giving in the schedule and taking the oath well knew and remembered that the debts charged to be improperly omitted in the said schedule were then justly due and owing to! him. It will thus be seen that the authorities are practically uniform in holding that in negativing a defendant’s oath, where he has sworn only to his belief, it is necessary to charge that he well knew the contrary of what he swore, as his knowledge is a necessary ingredient of the crime in such cases.

Now the matter upon which the perjury was assigned in this case, clearly was that the defendant had corruptly and falsely sworn that he did not believe that he had ever approached one Henry Ascher and proposed to him to aid in the passage of an ordinance for a given fee, and that he did not recall that he had ever at any time gone to any person or corporation with the view of securing employment with reference to the passage of an ordinance. The matter sworn to by him was not that he had not done these things, but that he had falsely testified that he did not believe that he had ever gone to Ascher and did not recall that he had ever done these things, As was said in State v. Lea, 3 Ala. 605, the averment that he did approach said Ascher does not show that he testified falsely. In order to produce this consequence, it was necessary for the pleader to have averred that the defendant believed and' well knew that the statements made by bim to the effect that be did not believe and did not recall, were false. And tbe allegation at tbe end of tbe averment that tbe defendant did solicit said fees as charged “as he then and there well knew,” in our opinion falls far short of the requirements of the common law, which has not been modified by our statute in regard to the assignments of an indictment for perjury wherein knowledge is of the essence of the crime.

In 2 Chitty’s Crim. Law, mar. page 312, that learned and accurate author, speaking upon this subject, says: “These averments or assignments of perjury, as they are technically termed, should be specific and distinct, in order that the defendant may have notice of what he is to come prepared to defend, and it would, therefore, be insufficient to aver generally and indefinitely that the defendant’s oath was false. And where an indictment for perjury committed in the insolvent debtors ’ court alleged that the defendant falsely, etc., swore ‘that his schedule presented to that court contained a full, true and perfect account of all debts owing to him, whereas in truth and in fact, the schedule did not contain a full and true and perfect account of all debts owing to him, ’ without specifying any debts omitted, it was held that this indictment was bad. [1 Ry. & M. 210.] ”

It results that, in our opinion, the indictment was insufficient. It may be added that the indictment may be assailed in this court for the first time, as the defect that it does not state facts sufficient to constitute a crime is one which is apparent upon the face of the record. Having reached the conclusion that the indictment is invalid upon the first assignment of error, we deem it unnecessary to pass upon the second and third assignments, as they may he cured in a subsequent indictment, but as the judgment must be reversed and the cause remanded and a new indictment may'be found, the fourth assignment, to-wit, the exclusion of the evidence tending to prove that down to a date recently before the alleged false swearing, the defendant apparently stood on the brink of paresis and that his memory was wholly unreliable, should be considered, in order to advise the circuit court, if another indictment is found, of our views as to the admissibility of this testimony.

It seems that the circuit court admitted this evidence and then afterwards by an instruction excluded it. The language of the instruction was as follows: “You are instructed that all testimony introduced by the defense for the purpose of showing total or partial insanity of the defendant on the 28th of October, 1907, will be disregarded by you for the reason that such testimony is insufficient to establish such defense.”

As we have already seen, the knowledge of the defendant of the falsity of his testimony before the grand jury is of the very essence of the charge against him in this case. The purpose of the testimony offered and excluded by the court, was not to establish that the defendant was insane, but that owing to disease and nervous disturbances he had evinced a great loss of memory, up> to April, 1907. This testimony was not for the purpose of showing that he was either wholly or partially unable to appreciate the moral or physical consequences of an act, but to show that his memory was wholly unreliable, and this not by himself but by other witnesses who had occasion to observe his conduct independent of this charge. We can not see any reason why it was not competent for the defendant to introduce this testimony as tending to show the jury that, notwithstanding they might believe beyond all doubt that he did in fact solicit employment from Ascher and others to aid them in getting their ordinances through, still thht, owing to this failure of memory, he did not recall and did not remember, at the time, these propositions to Ascher and others. The indictment and the plea of not guilty tendered the issue to the jury whether the defendant honestly believed, as he stated, or whether honestly he did not recall those visits to Ascher and others. “Memory,” says Sir William Hamilton, “is the power of retaining knowledge in the mind. The mental power of recognizing past knowledge.” That men may and do have what is denominated unsound memories although otherwise of sound mind, is a matter of common knowledge. It is most generally observable in persons of old age, who have lost the power to remember past events, but no one would class them as insane persons. That such a person might do an act and be perfectly conscious of it, and of its moral and legal effect, and yet forget it, we take it is not open to dispute. Of course, it would be for the jury to credit or discredit this testimony and believe or not believe it, as it appeared reasonable or unreasonable to them, but the question here is one of competency. Did the defendant have the right to show to the jury that he was in a condition bordering upon paresis or a partial paralysis affecting his muscular motion, due to a disorder of the central nervous system, and that this had so affected his memory that he was known in the ordinary transactions of business to forget one day what had occurred the day before or a week before? We think that the court in ascribing the offer of this evidence to an attempt to prove insanity, either total or partial, misapprehended the purpose of the evidence, and that its instruction in withdrawing it on that ground from the jury was erroneous. The whole purpose of the testimony, as we view it, was to place the jury in possession of the condition of the defendant’s mind at the time of the alleged perjury, and to allow them to say whether the statements ■ of the defendant before the grand jury, that he did not believe or did not recall his statements to Ascher and others, were honest or not. And if they were honest, then he had not committed perjury. It is not for us to credit or discredit this statement in view of all the testimony in the case, but it was a question of fact for the jury to determine. Our conclusion is that the court committed error in excluding this testimony from the jury by its instruction.

For the reasons given the judgment is reversed and the cause remanded so that the circuit attorney may cause a new indictment to be preferred if he shall so desire, and to that end that the defendant should be recognized for the further action of the grand jury if deemed proper by the circuit court.

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


author: FOX, P. J.

text:
    THE STATE v. C. H. CAMPBELL, Appellant.
    Division Two,
    November 24, 1908.
    APPELLATE JURISDICTION: Local Option Law: Constitutionality. Where the constitutionality of the Local Option Law was affirmatively determined by a long line of decisions prior to the date of the appeal, and in the very particular in which its constitutionality is now assailed, the Supreme Court will not take jurisdiction of the appeal on the sole ground that a constitutional question is involved, but will hold that such question is no longer debatable, and transfer the case to the Court of Appeals.
    Appeal from Dallas Circuit Court. — How. Argus Cox, Judge.
    Transferred to Kansas City Court of Appeals.

      J. W. Ferris for appellant.

      Herbert 8. Hadley, Attorney-General, and Frank Blake, Assistant Attorney-General,'for the State.
    The constitutionality of the local option law has been many times sustained by this court. State v. Handler, 178 Mo. 38; State v. Dugan, 110 Mo. 138; State v. Watts, 111 Mo. 553 ; State v. Searcy, 111 Mo. 236.
   FOX, P. J.

This cause is brought to this court by appeal on the part of the defendant from a judgment of conviction in the Dallas Circuit Court, for a violation of what is commonly known as the Local Option Law.

The defendant was charged in the indictment with selling one gallon of brandy, in the month of P'ebruary, 1907, in violation of the Local Option Law, which it was alleged had been adopted in that county. The defendant was duly arraigned, and entered a plea of not guilty, and on October 8, 1907, was put upon his trial, which resulted in a verdict of guilty, with punishment assessed at a fine of three hundred dollars. Timely motions for new trial and in arrest of judgment were filed and by the court overruled. An appeal was prayed for and granted to this court upon the theory that a constitutional question was involved.

At the trial there was evidence offered on both sides by the respective parties to this proceeding. We deem it unnecessary, with the views we entertain as to the jurisdiction of this court to determine this cause, to set out in detail any of the testimony introduced upon the trial. It is sufficient to say that the principal contest in the trial of the cause was as to the adoption of the Local Option Law, that is to say, as to whether or not the records, notices of election and proof of publication introduced concerning such election were sufficient to give it vitality and force. This is a sufficient indication of the nature and character of the cause disclosed by the record.

OPINION.

The record before us in this cause discloses that the constitutionality of the Local Option Law was assailed, and by reason of this fact it is sought to require this court to take jurisdiction of this cause and finally determine it. The constitutionality of the Local Option Law long prior to the date of the appeal in the case at bar had been settled by a long line of decisions by this court. [State ex rel. v. Pond, 93 Mo. 606; Ex parte Swann, 96 Mo. 44; State v. Handler, 178 Mo. 38; Ex parte Handler, 176 Mo. 383; State v. Dugan, 110 Mo. 138; State v. Watts, 111 Mo. 553; State v. Searcy, 111 Mo. 236.]

Confronted with this long line of decisions in which the constitutionality of the Local Option Law has been exhaustively treated and finally settled, will this court take jurisdiction of the case at bar, the appeal having been taken long subsequent to the adjudications herein indicated? In the very recent case of Dickey v. Holmes, 208 Mo. 664, the appeal was granted to this court and it was sought to have this court retain jurisdiction by reason of a constitutional question being involved. Judge Burgess, in a very exhaustive opinion, reviewed all of the authorities applicable to the proposition now confronting us. The constitutional question raised in that case had, previous to the appeal, been finally adjudicated in numerous other cases, and this court declined to take jurisdiction of the same. It was pointed out in the discussion of the proposition that there were some cases which held that when a constitutional question has once been decided in a case, it can be raised in a subsequent ease, and when so raised in the trial court it is so far in the ease as to direct the course of the appeal to the Supreme Court. Judge Burgess, in commenting upon those cases, said that “this is not an ironclad rule to which there are no exceptions. In the very nature of things, the constitutional question involved must be a live one, not expressly foreclosed by prior decisions of this court, otherwise no such question could ever be settled, no matter how often adjudicated by this court.”

In Gabbert v. Railroad, 171 Mo. 84, it was ruled that the amendment to the Constitution allowing nine jurors to return a verdict was legally adopted and was constitutional, and this court has uniformly since declined and refused to consider cases where the appeal was taken solely on the ground of the alleged unconstitutionality of that amendment, except where the appeal was taken prior to that decision, December 24, 1902.

In Murray v. Railroad, 176 Mo. 183, this court retained jurisdiction solely upon the ground that the appeal was taken prior to the decision in Gabbert v. Railroad, supra.

The same rule was announced by this court In Banc in Tandy v. Railroad, 178 Mo. 240, and by Division One of this court in Portwright v. Railroad, 183 Mo. 72.

In Lee v. Jones, 181 Mo. 291, there was a verdict for the plaintiff for $1,500, upon which there was a judgment rendered and the defendant appealed. Valliant, J., speaking for the court, said: “The appeal was taken to the St. Louis Court of Appeals, but when the attention of that court was called to the fact that only nine of the jurors concurred in the verdict, and that the constitutionality of such a verdict was challenged in the circuit court, the Court of Appeals transferred the cause to this court. At the time the appeal was taken this court had not passed on the question of the constitutionality of a verdict by three-fourths of the jurors in a civil cause in a court of record; therefore, there was a constitutional question in the case which gave this court jurisdiction, and the action of the Court of Appeals transferring the cause to this court was right. This court having jurisdiction when the appeal was taken will retain it. But since then we have decided that under our Constitution three-fourths of the jurors in a civil suit in a court of record may render a valid verdict and, therefore, that is no longer a constitutional question in this State.” The same conclusion was reached in Franklin v. Railroad, 188 Mo. 533, and in Carpenter v. Hamilton, 185 Mo. 603.

In Boling v. Railroad, 189 Mo. l. c. 230, Judge Gantt, in speaking for this court, said: “Under the recent decisions of this court In Banc and both divisions, had this appeal been taken to or transferred to this court after the decisions in Russell v. Croy, 164 Mo. 69, and Gabbert v. Railroad, 171 Mo. 84 . . . this appeal should be remanded to the St. Louis Court of Appeals, as the sole ground upon which it is transferred to this court is that the amendment to section 28 of article 2, permitting nine jurors in a civil case to make a verdict, was never legally adopted, but inasmuch as the appeal when taken fairly raised the constitutional question whether such amendments had in fact become a part of the Constitution, and was taken prior to,the settlement of that question by this court in the cases above cited, we will retain the appeal as properly in this court; otherwise, we would not.” Citing Lee v. Jones, 181 Mo. 291; Carpenter v. Hamilton, 185 Mo. 603.

In Dickey v. Holmes, supra, the constitutional question involved was concerning certain charter provisions of Kansas City, Missouri, and in discussing the question as to whether this court should take jurisdiction, it was said: “The case of Barber Asphalt Co. v. Ridge, 169 Mo. 376, was decided in Division No. 2, June 18, 1902, and Paving Co. v. Munn, 185 Mo. 552, on December 24, 1904, while the appeal in the case at bar was granted on the 23rd day of January, 1905; so that, before the appeal in this case was taken, Division 2 of this court had twice decided the charter provision in question unconstitutional and void, and both divisions a number of times since. In view of these repeated adjudications, can there be any merit in this appeal? If there is, we fail to appreciate it. We, therefore, decline to take jurisdiction of this case, and order the record and papers transferred to the Kansas City Court of Appeals, to whose jurisdiction it rightfully belongs.”

As applicable to the case at bar it is manifest that the general features of the Local Option Law have been held constitutional in the cases heretofore indicated, and as to the particular insistence of learned counsel for appellant that the law is unconstitutional because of the claim of unwarranted distinction in the classification of cities, it was expressly ruled by this court in Ex parte Handler, supra, that “the Local Option Law does not offend against the constitutional classification of cities by giving to cities of the fourth class having a population of twenty-five hundred inhabitants power to prohibit the sale of intoxicating liquors altogether, while it confers no such power on all cities of the same class having less than 2,500 and more than 500 inhabitants.”

Confronted with the case of Dickey v. Holmes, in which the proposition now in hand was fully reviewed, it is manifest that if that case is to be followed, and we see no reason for departing from it, there is no escape from the conclusion that this court must decline to take jurisdiction of this cause.- It is therefore ordered that it be transferred to tbe Kansas City Court of Appeals for final determination.

All concur.


text:
    THE STATE v. FRED FILLINGHAM et al.; CHARLES FILLINGHAM, Appellant.
    Division Two,
    November 24, 1908.
    RECOGNIZANCE: Not to Depart: New Information. Where an information was filed, and defendant entered into a recognizance to appear “from day to day during the present term, and on the first day and from day to day of any future term thereof to which this cause may be continued to answer an information . . . for the offense of an assault to kill, and shall not depart said court without leave thereof,” and the cause was continued and at a subsequent term another information was filed charging the same offense, the recognizance may be forfeited and judgment taken against the surety for defendant’s failure to thereafter appear on a day to which the cause was continued. The-first information became invalid upon the filing of the second, but the recognizance did not bind defendant to appear and answer the first information only, but also bound him “not to depart said court without leave,” and thereby he was bound to appear not only to answer the first information but any subsequent charge that might be preferred.
    Appeal from St. Louis City Circuit Court. — Ho». Moses N. Sale, Judge.
    Affirmed.

      Thos. B. Harvey for appellant.
    (1) Since tbe power of tbe court to require tbe defendant to give bail for bis appearance rested solely upon the pending information, then necessarily so soon as tbe court lost its power to try him upon said information tbe bail bond given for that purpose became ineffective and without any vitality. Tbe moment tbe information was without life, the bond to answer to it was also without life. It is unreasonable to say that the bond requiring the defendant to answer to an information could remain effective while the information was ineffective and dead, and the court was without any power to try him on it. State v. Williams, 191 Mo. 205; State v. Mayer, 209' Mo. 396. (2) The court was without power or jurisdiction to try the defendant upon the first information while a second information was pending charging him with the same offense. R. S. 1899, sec. 2522; State v. Taylor, 171 Mo. 465; State v. Melvin, 166 Mo. 572.

      Herbert 8. Hadley, Attorney-General, and Frank Blake, Assistant Attorney-General, for the State.
    (1) The statute does not provide that the first indictment shall be “superseded,” but “suspended” is the word used. Neither does it provide that upon the filing of the second indictment, the first shall be quashed, ipso facto. It says that the first “shall be quashed.” But it cannot be quashed unless some effort is made to quash it, and the defendant took no such step in this case. The first information was, therefore, in full force and effect, but lying dormant, when the defendant defaulted. If, under the circumstances, the second information had beeen quashed, the effect would have been to revive the first information by removing the only obstacle which caused its suspension. State v. Melvin, 166 Mo. 565'. The second information was but a continuation of the proceedings begun under the first information. State v. Daugherty, 106 Mo. 182. (2) Under the clause of the bond, “shall not depart the said court without leave thereof, ’ ’ the liability of the surety Filling-ham attached when the principal failed to appear on July 7, 1905, because on said day he departed the court “without leave.” State v. Iloeffner, 68 Mo. App. 165; State v. Boehm, 184 Mo. 201. (3) The object of a bond given in a criminal ease is to secure the presence of the defendant in court to answer to an “offense” charged. Thus, the Constitution (Sec. 24, art. 2), provides that all persons shall be bailable, except for “capital offenses.” So, all through the statutes, wherever bail is referred to, it is referred to in connection with an “offense,” dr “criminal offense,” or “offense charged.” The following sections of the Revised Statutes are in point: Sections 2543, 2555, 2759', 2460, 2461, 2462 and 2469. Under section 2800, Revised Statutes 1899', no proceeding upon a recognizance is to be defeated, if it appears from the whole record “that the defendant was legally in custody charged with a criminal offense; that he was discharged therefrom by reason of the giving of the recognizance and that it can be ascertained from the recognizance that the sureties undertook that the defendant should appear before a court or magistrate at the term or time specified for trial.” State v. Epstein, 186 Mo. 99.
   GANTT, J.

On October 26, 1903, the circuit attorney of the city of St. Louis filed an information, numbered seventy-one, in the circuit court, wherein he charged Fred Fillingham with having on the 19th day of May, 1903, made a felonious assault upon one Emma Fillingham. On May 1, 1905, an alias capias was issued, and defendant was arrested, and upon the same day, with Charles Fillingham as his surety, he entered into the following recognizance:

“State of Missouri, City of Si. Louis, ss.
“Be it remembered, that on the 1st day of May, in the year nineteen hundred and five, personally came before Robert M. Foster, Judge of the Circuit Court of the city of St. Louis, Division No. 11, within and for said city of St. Louis, Fred Fillingham (as principal) and Charles Fillingham (as surety) and acknowledge themselves, jointly and severally, to owe to the State of Missouri the sum of one thousand dollars, to he levied of their respective goods and chattels, lands and tenements; yet upon condition that if the said Fred Fillingham shall personally appear before the circuit court of the city of St. Louis, Division No. 11, from day to day during the present term, and on the first day and from day to day of any future term thereof to which this cause may be continued, then and there to answer to an information preferred by the assistant circuit attorney of said city against said Fred Fillingham for the offense of assault to kill and shall not depart the said court- without leave thereof, then this recognizance' to be void, else to remain in full force ánd effect.
“Address of principal: 3134 Vinegfove Ave.
“Feed Fillingham; (Seal)
Charles Fillingham (Seal)
“Taken and certified the year and day aforesaid.
“Robert M. Foster,
“Judge of the Circuit Court of the City of St. Louis, Division No. 11.”

Thereafter on May 3, 190*5, and at the April term, 1905, of said court, there was another information filed charging the same identical offense as that charged in the information numbered 71. This new information, presumedly, was filed because the first one ■was not verified as required by the statute and the decisions of this court. At the same term, the cause was set down for trial on May 17, 1905, and on that date was continued on the application of the defendant, to July 7, 1905. On the last-mentioned date, the defendant defaulted, and thereupon he and his surety, Charles Fillingham, having been duly called according to the condition of the said recognizance, made default and a forfeiture of the said recognizance was taken by tbe court and a new capias and scire facias ordered to issue, and thereupon on May 29, 1906, the scire facias was issued reciting all the above-mentioned facts and record and made returnable the first Monday in October, 1906. At the October term Charles Filling-ham, the surety, filed his answer to the scire facias as follows:

“He denies each and every allegation contained in the said scire facias.
“2nd. And for further answer defendant states that the recognizance mentioned in said scire facias and which was executed on the first day of May, 1905, was given to release the defendant, Fred Fillingham, from arrest under an information that was then, on the said first day of May, 1905-, pending in said court, and which had been filed therein on October 26, 1903; and that subsequently thereto, to-wit, on May 3, 1905, another information was issued and filed in said court charging the said Fred Fillingham with the commission of the same offense as that charged in the first aforesaid information, and that the effect of the filing of the said second information was to quash the first information and to discharge the defendant and his surety from the recognizance aforesaid, which had been given for the appearance of the principal to answer said first information; and the charge which was set down for trial on May 17, 1905, and subsequently on July 7, 1905, was that contained in the aforesaid second information, and the forfeiture was enteréd against the principal and his surety on July 7, 1905, because of the failure of the defendant, Fred Filling-ham, to answer to the charge contained in said second information, and not for his failure to answer to the charge contained in the said first information, to answer to which said recognizance was executed.
“3rd. And further answering, defendant says that the aforesaid recognizance is insufficient in law and that the record entries are insufficient to sustain the forfeiture of said recognizance and are insufficient •to sustain a judgment on said recognizance.
“Wherefore defendants pray judgment against plaintiff.” The circuit attorney filed a reply denying the new matters and facts pleaded in the answer. The cause coming on for hearing, the court rendered judgment for the State against the surety, Charles Fillingham alone, adjudging his answer insufficient. In due time he filed his motions for new trial and in arrest of judgment which were heard and overruled and thereupon he appealed to this court.

The legal propositions advanced hy the defendant for the reversal of this judgment are that the recognizance was given by the defendant Fred Filling-ham only to secure his appearance under the first information filed against him, and that the forfeiture was illegal because it was taken for his failure to appear to answer the second information. The substance of the argument for the learned counsel for the defendant is that the recognizance recites the obligation of the defendant Fred Fillingham “to answer to the information preferred by the assistant circuit attorney of said city for the offense of assault to kill, ’ ’ and that the power of the court to require the defendant to give bail for his appearance rested solely upon the pending information, and as soon as the court lost its power to try him upon said information, the bail bond given for that purpose became ineffective and without any vitality.

It will be observed that the learned counsel for the defendant omits from his statement of the language of the recognizance the words, “And shall not depart the said, court without leave thereof.” The contention of the defendant is based upon section 2522, Revised Statutes 1899, which provides: “If there be at any time pending against the same defendant two indictments for the same offense, or two indictments for the same matter, although charged as different offenses, the indictment first found shall be deemed to be suspended by said second indictment, and shall be quashed. ’ ’ And inasmuch as it appears from the record in this case, that the information numbered 71 to answer which the bail was originally taken, was after-wards suspended by the filing of the information number 64, two days after the recognizance had been taken and approved, the first information was without life and the bond to answer it was without life, and the court had no longer any power over the defendant.

It is plain that the learned counsel for the defendant would restrict the recognizance to that clause which required the defendant to appear before the circuit court to answer the information preferred by the circuit attorney at the October term, 1903, and as that information was suspended by the filing of the second one, he argues that the defendant cannot have been in default on the 7th of July, 1905, when his presence was required by the court. It is not asserted, and indeed could not be, that the record discloses that there was any order discharging the defendant from this recognizance upon the filing of the second information. It seems to us that the principle which must govern this case was decided by this court in State v. Poston, 63 Mo. 521. In that case the effect of the clause, to-wit, “That the defendant shall not depart the court without leave thereof,” was considered, and it was said by this court that the fact that the indictment in that case was fatally defective made no difference, as the condition of the recognizance was such that it not only reqxxired the appearance of the accused to answer the indictment but also not to depart the court without leave. Champlain v. People, 2 Comst. (N. Y.) 82, was cited with approval, in which it was held that it was no defense that no indictment was found, where the recognizance was conditioned to appear and. answer an indictment to be found and not to depart, and this on the ground that the indicted party was not entitled to his discharge as a matter of course. And so in People v. Stager, 10 Wend. 431, it was held that the clause, “He shall not depart until discharged,” is-unnecessary in respect to the charge which is the basis of the recognizance, but that its use is to detain the . party on other charges that may be preferred against him. [See, also, Hawkins, Pl. Cr., chap. 15, sec. 84.] And it was further said by this court in State v. Poston, supra, that “there is no substantial difference between a recognizance at common law and one provided for by our statute,” and that “it is of frequent occurrence in practice that a nolle prosequi is entered as to a pending indictment, with the view of having another found, and it was no doubt to meet this and similar exigencies that the clause above mentioned was inserted.” Applying the reasoning of that case to the facts in this record, instead of entering the nolle the prosecuting attorney simply filed a new or amended information. While it is not called an amended information, it is -clear, we think, that such was the purpose of the pleader, because the two informations are identical in every respect save that the second is verified by an affidavit as the statute required, and which was clearly overlooked when the first information was filed. The doctrine announced in State v. Poston was followed in State v. Millsaps, 69 Mo. 362; State v. Livingston, 117 Mo. l. c. 628; State v. Morgan, 124 Mo. l. c. 474; and State v. Boehm, 184 Mo. 201.

Under all of these decisions, it is clear that the defendant cannot restrict the recognizance to the .one clause requiring him to answer to the information, but the whole record must be looked to and when that is done, he was bound not to depart the court at that particular term without its leave, and this it clearly appears from the record he did, and it was for the breach of this clause that the forfeiture was taken, and upon which the judgment of the circuit court was rendered.

In view of the whole record, we think there was no error in the judgment of the circuit court, and it is accordingly affirmed.

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


text:
    THE STATE v. GEORGE G. HODGES, Appellant.
    Division Two,
    November 24, 1908.
    GAME AND FISH LAW: Explosives in Water: Section 7456 and Act of 1905: Consistent. Sections 7456 and 7464, Revised Statutes 1899, concerning the placing of explosives in the waters of this State, were not repealed or abrogated by section 29 of the Act of 1905, Laws 1905, p. 163. They are consistent, and the latter is supplementary of the former. Section 7456 strikes at the placing of explosives in waters whereby fish may be injured or killed and prohibits any person from catching or taking fish by such means. Section 29 goes further and makes the placing of explosives in the water for any purpose and in total disregard of the result a misdemeanor, except for mining or mechanical purposes or for the recovery of bodies of persons, and then only on permission of the warden.
    Appeal from Shannon Circuit Court. — Eon. Wm. N. Evans, Judge.
    Affirmed.

      E. J. Shuck and Clark & Yount for appellant.
    The information being filed and the trial had after the Act of 1905 went into effect, appellant could not be prosecuted under section 7456 nor convicted under section 7464, for the reason that said section 7464, which prescribes the punishment for the offense with which appellant was charged, had been superseded, abrogated and repealed by section 29 of tbe Act of 1905. The offense can not at the same time be a felony and a misdemeanor, and the motion to quash the information should have been sustained. State v. Taylor, 186 Mo. 108. The offense with which appellant was charged being a misdemeanor, the first instruction of the court was erroneous and should not have been given, for the reason that the jury were authorized under that instruction to find appellant guilty of a felony and not a misdemeanor.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    It will readily be seen that section 29 makes it a misdemeanor for any person to use dynamite or other explosives in any of the waters of this State, whether fish be killed or not, while' section 7456 makes it a felony for any one to use explosive substances in any waters of the State whereby fish may be killed, injured or destroyed, caught or taken from said waters. The offenses denounced by these respective sections are entirely separate and distinct. By one, the act of using explosives in any of the waters of the State is prohibited; while by the other, the use of such explosives “in any of the waters of the State, whereby any fish that may be in said waters may be killed, injured or destroyed,” is made a felony. It often happens that a single act, committed by a defendant, will make him amenable to two or more of our criminal laws. And many times a defendant is guilty of violating two or more statutes by a single wrongful act. For example, a man may carry a pistol in his pocket and attend a religious, political or social gathering, and he is guilty of violating two statutes. He may also carry a pistol concealed and attend a political gathering at a court house, which political gathering is held during the session of some court, and he is guilty of violating three statutes. It will readily be seen, therefore, that appellant’s argument, although ingenious and able, is based on erroneous theory. Repeals of statutes by implication are not favored, and our courts have often said that unless it was the clear intention of the Legislature to repeal a given statute the enactment of a subsequent statute, on the same subject, will not be treated as a repeal of a former one. State ex rel. v. Wilder, 199 Mo. 487; State v. Taylor, 186 Mo. 615. It •will readily be seen, by the decision in this Taylor case, that the test which the court uses in determining an action of this kind is whether or not the two sections are irreconcilable the one with the other. If so, both cannot stand, but if the one denounces one offense and the other another, they are reconcilable and valid.
   FOX, P. J.

The defendant in this cause was charged in the circuit court of Shannon county with throwing dynamite in certain waters of this State, whereby the fish in said waters might have been killed, injured or destroyed, and whereby a large quantity of fish in said waters were killed, caught and taken from said waters, in violation of section 7456, Revised Statutes 1899. The defendant was convicted of said of: fense and fined in the sum of $100', and the cause is pending in this court upon appeal from the judgment rendered in said cause.

Learned counsel for appellant make no point as to the sufficiency of the testimony to warrant a. conviction, nor do they complain or assign any error respecting the regularity of the proceeding, but concede in their brief that there is but one question presented for determination in this cause and that is whether section 29 of the Act of 1905, Laws 1905, pages 163 and 164, abrogated or repealed sections 7456 and 7464, Revised Statutes 1899, which latter sections classify the offense as a felony and prescribe the penalty for its commission. The information in this cause, which was duly verified, omitting formal parts, thus charges the offense:

“L. B. Shuck, prosecuting attorney within and for the county of Shannon, and State of Missouri, under his oath of office and upon his own knowledge, information and belief, informs the court that George G. Hodges, late of said county, on or about the first day of June, 1906, at the said county of Shannon, State of Missouri, did then and there unlawfully, wilfully and feloniously use, put and throw into the waters of this State, to-wit, certain waters called Jack’s Fork of Current River, there situate, a large quantity of dynamite, giant powder, nitroglycerine and other explosive substance of which nitroglycerine composed a part, with a felonious intent then and there, the fish in said waters being to kill, catch, injure and destroy and did by the means aforesaid then and there a large quantity of the fish kill, catch and take from said waters, against the peace and dignity of the State. ’ ’

It being conceded that there is but one question submitted to this court for determination as heretofore indicated, we deem it unnecessary to burden this opinion with a reproduction of the evidence developed at the trial or the instructions of the court. Upon this state of the record there is nothing remaining to be done except to give expression of our views upon the only legal proposition presented for consideration.

OPINION.

The information in this cause is predicated upon section 7456, Revised Statutes 1899, which provides:

“No person shall place or use in any of the waters of this State any medicated drug, any cocculus indicus, of fish-berry, or any other poisonous thing or substance, calculated to poison, kill or injure any fish, nor-shall by such means kill, catch or take any fish that may be in said waters, and no person shall place any dynamite, giant powder, nitroglycerine or any explosive substance of which nitroglycerine composes a part, or any other explosive substance or preparation, in any of the waters of the State, whereby any fish that may be in said waters may be killed, injured or destroyed, and no person shall by such means kill, catch or take any fish from said waters.”

It is insisted by counsel for appellant that the foregoing section of the statute upon which this prosecution is based was repealed by section 29 of what is commonly called the Walmsley game law, enacted by the General Assembly and approved March 10, 1905. This section of the Walmsley act provides:

“The use of dynamite or explosives in any of the waters of this State is prohibited except by special permission and under the supervision of the State game and fish warden, and then only for mining or mechanical purposes, or to recover the bodies of persons. Any person, firm or corporation offending against any of the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction shall be fined not less than $500 nor more than $1,000 for each offense.” [Laws 1905, p. 163.]

It is earnestly contended that the provisions of section 7456, Revised Statutes 1899', and the provisions of section 29 of the Act of 1905, as heretofore indicated, in so far as they attempt to prevent the use of explosives in the waters of this State, define the same offense and undertake to classify one as a felony and the other as a misdemeanor, and that as section 29 of the Act of 1905' is the later act, and classifies the offense as a misdemeanor, the defendant should have been proceeded against under that section. We are unable to give our assent to* the insistence of learned counsel for appellant. In our opinion these two sections are directed to separate and distinct character of acts, which when done constitute separate and distinct offenses. The essential elements of the offense under the provisions of section 7456, supra, are not only the placing of the explosive substance in any of the waters of this State, hut it is the placing of an explosive substance in the waters of this State whereby any fish that might be in such waters may he killed, injured or destroyed and in addition that no person shall by such means kill, catch or take any fish from such waters. By the provisions of section 29 the use of dynamite or explosives in any of the waters of this State is absolutely prohibited except by a special permission and under the supervision of the State game and fish warden, and then only for mining or mechanical purposes or to recover the bodies of persons. Under the provisions of section 7456 the explosive and the use of it must he of such a nature and character whereby the fish in the waters of the State may be killed, caught or destroyed and the use of it as a means to kill, catch or take away fish from the waters of the State.

The people of this State have long felt the want of ¡proper legislation to protect the fish in the waters of this State and the lawmaking power doubtless recognized the defenses that might he made to a charge under the provisions of section 7456. The accused might say: “I used the explosive, hut I did not use it for the purpose of killing fish, nor is it of such a character whereby fish might have been killed or destroyed in the waters of this State;” therefore, to meet just such a pretext the law-making power enacted section 29, which prohibits the use of dynamite or explosives in- any of the waters of this State, except under the conditions as heretofore indicated in section 29, and under the provisions of that section the offense is complete when the explosives are placed in the wafers of this State, except when done by the permission and under the supervision of the game warden for mining or mechanical purposes or to recover the bodies of persons, and it makes no difference under the terms of that section whether the explosives were of such character or used in such a manner whereby fish in the waters of this State might be killed or destroyed, or not. In other words, the law-making power sought to take away all chances of the destruction of fish by means of explosives by simply saying, “You shall not use them at all except under certain conditions, whether they were calculated to kill fish or not.”

These two sections are in no way inconsistent and both of them can be made effective and operative. As was said in the case of State v. Taylor, 186 Mo. l. c. 615, “It is clearly the duty of courts, in construing two. sections upon the same subject defining criminal offenses, to so construe them as to bring them in harmony, and make them both effective and operative, to the end that a remedy may be afforded for the evil sought to be suppressed.” These two sections are easily susceptible of being made harmonious. As they now stand, if the defendant placed in the waters of this State explosives of such a nature and character whereby fish may be destroyed or injured, or used it as a means of killing and taking fish from the waters of this State, he should be proceeded against under the provisions of section 7456 for a felony. If on the other hand, he should use an explosive not of that character whereby fish might be destroyed, and not as a means for killing and taking fish from the waters of the State, yet fails to comply with the conditions required in obtaining the permission, etc., of the game warden, then he should be proceeded against under the provisions of section 29 for a misdemeanor. In our opinion it is clear that these two sections were intended to cover separate and distinct classes of acts done by persons handling dynamite or explosives.

We have thus given expression to our views upon the only proposition confronting us in the record' before us, which results in the conclusion that the judgment of the trial court should be affirmed, and it is so ordered.

All concur.