text:
    THE STATE v. ELMER BARNES, Appellant.
    Division Two,
    June 3, 1918.
    1. JURISDICTION: To Try a Convict. A defendant who has been convicted of murder and his punishment fixed by the jury at imprisonment for a term of years, may, before he is sentenced for such crime, be tried for larceny and burglary and sentenced according to verdict. The sentence in the murder case having been deferred until after the verdict was returned in the burglary case, the court’s jurisdiction in the latter .case was not in any wise affected, and a sentence in each case in the order of conviction was authorized.
    2. EVIDENCE: Transcript of Testimony of Deceased Witness. The notes of the testimony of a witness who has since died, taken by a stenographer at defendant’s preliminary examination, at which both defendant and the witness were present, may be read by such stenographer to the jury at defendant’s trial for the same felony. Defendant’s constitutional right to be confronted by the witnesses against him is not invaded by admitting such notes in evidence.
    3. -: -: Authentication of Stenographer’s Notes. Nor does the fact that the notes of the testimony of the deceased witness were taken by one who was' not an official stenographer, or that they were not certified to by the magistrate before whom defendant’s preliminary examination was held, render them inadmissible.
    4. INSTRUCTION: Credibility of Witness: Ealsus in Uno, Etc. The giving of an instruction telling the jury that if they believe any witness has wilfully sworn falsely to any material fact they are at liberty to disregard any or all of such witness’s testimony, is, in the absence of evident prejudice to the accused, to be left to the discretion of the trial judge; and if there is a basis for it in the evidence, the giving of it is not error.
    Appeal from St. Louis Circuit Court. — Hon. Leo 8. Rassieur, Judge.
    Aeítrímed.

      Thomas J. Rowe, Jr., and Henry Rowe for appellant.
    (1) There is no authority for convicting a prisoner of a felony at one term of the court and then remanding Mm to jail until the next succeeding term and again convicting him of another felony and then passing sentence upon him in both cases. Ex parte Meyers, 44 Mo. 282; State v. Connell, 49 Mo. 282; Ex parte Jackson, 96 Mo. 116; Ex parte Allen, 196 Mo. 231; State v. Ruck, 120 Mo. 496; State v. Bell, 212 Mo. 130f (2) The testimony of the witness Perdue was incompetent and in violation of Section 22, Article 2, of the Constitution (Secs. 5032 and 5042, R. S. 1909; Sec. 6345‘, R. S. 1909). State y. McO’Blénis, 24 Mo. 402; Williams v. Sleepy Hollow Mining Company, 7 L. R. A. (N. S.) 1. c. 1177; Jackson v. Pulton, 87 Mo. App. 236 ; State v. Moore, 156 Mo. 210. ' (3) The jurors have no right to disregard the whole of a witness’s testimony, although they may believe that he had sworn falsely to a material fact. Jurors have no right to disregard any testimony but false testimony. (4) Instruction Number 8, given by the court over defendant’s objection, by which the jurors were told that they could disregard the whole or any part of a witness’s testimony if they believed that he had sworn falsely to any material fact, is erroneous, because the court did not tell the jury what facts were material facts. Keeline v. Seeley, 257 Mo. 527.

      Frank W. McAllister, Attorney-General and George V. Berry, Special Assistant Attorney-Ueneral, for respondent.
    (1) The sentence may be postponed until -a future day or future term. Sec. 4908, R. S. .1909; Kelley’s Grim. Law and Prac., sec. 447; Ex parte Kayser, 47 Mo. 254; State v. Watson, 95 Mo. 415; Ex parte Bryan, 76 Mo. 254; Ex parte Durbin, 102 Mo. 103; Williamson’s Case, 67 Mo. 174. (2) The testimony of Johnson taken at the preliminary examination was properly admitted. State v. Houser, 26 Mo. 437;- State v. Harman, 27 M,o. 120 ; State v. Mcr O’Blenis, 24 Mo. 402; State v. Moore, 156 Mo. 210; People v. Murphy, 45 Cal. 144; Owens v. State, 63 Miss. 45; 3 Russell on Crimes (Int. Ed.), 388; 1 Wharton’s Crim.' Ev. (10 Ed.), 227; 5 Ency. Ev., 312. (3) The jurors were the sole judges of the weight of the evidence and the credibility of the witnesses. State v. Henderson, 186 Mo. 492; State v. Hudspeth,' 159 Mo. 200; State v. Hicks, 92 Mo. 434; State v. LaMont, 180 S. W. 863. (4) Instruction Number 8 correctly declared the law. State v. Miller, 93 Mo. 269; State v. Mounce, 106 Mo. 229; State v. Martin, 124 Mo. 521; State v. Harper, 149 Mo. 523; State v. LaMont, 180 S. W. 863.
   WALKER, P. J.

Appellant was charged by information in the circuit court in the City of St. Louis, with burglary in the second degree and larceny. Upon a trial, he was convicted and his punishment assessed at four years in the Penitentiary. From this judgment he appeals.

One Aaron Johnson, returning to his home one day, found appellant hiding behind a kitchen door in his residence. The wife of Johnson was outside of the house, scrubbing the steps during her husband’s temporary absence. Appellant ran out oü the house and attempted to escape, but was overtaken by Johnson and others, and was turned over to a police officer. Returning from the chase of the appellant, the John-sons found that the drawees of a dresser in their living room had been ransacked, and some jewelry taken therefrom.

Subsequently, Johnson was murdered. Appellant, who had been out on bail, was charged and tried for the killing of Johnson, and was convicted of murder in the second degree, but his sentence deferred, on account of the pendency of the charge herein against him.

The errors assigned by appellant with which we are alone concerned, are as follows:

(1) That the State had no authority to convict and sentence appellant at one term, and defer his sentence until after his trial and conviction of another offense.

(2) That one not an official stenographer was not authorized to read at the trial the uncertified testimony of Johnson, taken by such stenographer at the preliminary examination, Johnson 'being at th'e time dead.

(3) That an instruction was erroneous which told the jury that if they believed any witness had willfully sworn falsely to any material fact, they were at liberty to disregard any or all of such witness’s testimony. These in their order.

I. Appellant’s first contention is based upon the assumption that the trial court exceeded its jurisdiction to try the appellant for any offense after his conviction for the murder until the term fiis imprisonment, as fixed by the jury for that offense, had expired. The jurisdiction of a trial court, in a criminal case, is only finally terminated by the sentence of the defendant and the close of the term. The sentence of th'e appellant in the murder case having been deferred, the court’s jurisdiction was not impaired in that case, nor was it in any wise affected in the burglary case and his subsequent trial for the latter offense, and his sentence for each of the offenses in the order of hiss convictions was authorized. The eases cited by appellant are not contrary to this conclusion, in that they recognize the presence of jurisdiction in the absence of a sentence. [State v. Bell, 212 Mo. 130, and cases cited.]

In confirmation of the correctness of this conclusion, we held in State v. Wear, 145 Mo. l. c. 164, that jurisdiction continues for all purposes until the case has been finally disposed of; and that such final disposition only occurs when a sentence has been rendered which constitutes a judgment, and .the term has ended.

In State v. Schierhoff, 103 Mo. l. c. 50, we held that a court does not lose jurisdiction until final judgment. In this case., the judgment was rendered one' year after the rendition of the verdict.

In State v. Watson, 95 Mo. l. c. 411, we held that the sentence of one convicted of an offense may be postponed nntil a fntnre day or term, to snit the convenience of the conrt or for canse shown. We, therefore, overrule this contention.

II. Appellant’s second contention challenges the correctness of the ruling of the trial court in admitting in evidence the notes of the testimony of the deceased witness, Johnson. It is urged that appellant’s constitutional right to meet this witness face -f;0 faee wag denied (Sec. 22, Art. 2, Con. Mo.), and that the notes of this testimony were not authentic in not having been taken by an official stenographer, and in not having been certified to by the judge of the Court of Criminal Correction, before whom the preliminary examination was held. The constitutional question has been settled adversely to appellant’s contention ever since the ruling of this court in the McO’Blenis case, 24 Mo. 402, in which it was held that the deposition of a witness taken upon a preliminary examination before a committing magistrate in the presence of’ the accused, may be received in evidence on the trial, upon proof of the death of such witness; and that the provision of the Constitution declaring that in all criminal cases the accused has the right to meet the witnesses against him face to face, is not violated by the admission of such testimony. The ruling thus made has since been uniformly adhered to. [State v. Moore, 156 Mo. l. c. 210, and cases cited; State v. Butler, 247 Mo. 685.]

But the McO’Blenis case decides more than the constitutional question. It affirms the common law ruling (1 & 2 Phil. & M., c. 13 and 3 Phil. & M., c. 10'), • which has not been changed by statute, that (testimony taken as in the instant case may be admitted in evidence, the sole prerequisites to its. admission being, in the absence of any question as to its correctness, (1) a showing that the witness is then dead; (2) the presence at the time of the taking of the testimony of tlie defendant; and (3) Ms right to cross-examine the witness.

The limitation now sought to be added to the admission of such testimony that the stenographer taking same must h'ave an official character, and that the testimony when taken must be certified to by the judge before whom it was taken, finds no support in the reasons urged in the various cases in support of the admissibility of this character of testimony. In none of these cases, from that of McO’Blenis to State v. Butler, was any question raised as to the character of the stenographer, if one was employed to take the testimony. In fact, in a majority of these cases there is nothing from which it can be determined how or in what manner the testimony was taken. An official stenographer, so-called, is a creature of modern creation. His power is limited to the taking and the transcribing of testimony. His official character is nothing more than one of name. Any one possessing the requisite skill, is, while employed, clothed with equal authority. In nearly all of the cases in which this matter has been discussed, the preliminary examinations were held before committing magistrates, and in ruling upon the admission of the testimony the necessity of the certification of the magistrate has in no wise been considered. The fact that the testimony was taken down and transcribed is only a requisite to the admissibily of such testimony in so far as it insures the possibility of greater correctness than the oral statement of a witness who heard the then deceased person testify. In State v. Able, 65 Mo. 357, we held, in discussing the application of the MicO’Blenis case, that the essence of the decision and the principle to be deduced therefrom was, that when the evidence of a witness was taken in a criminal case in an examining or trial court in the presence of the accused, and the witness dies between such examination and. another subsequent trial, the evidence given by him may be, when proved to be correct, given on a subsequent trial of the same charge, whether it rests in the knowledge of witnesses or is preserved in writing in some manner authorized by law. In other words, the testimony of snch deceased witness may he proved in a criminal case in the same manner as it conld be in a civil case, and the substance of snch testimony is all that is required. “To hold otherwise,” says Justice Gibson in Cornell v. Green, 10 Serg. & Rawl. 14, “would render such testimony altogether useless in practice, for there is no man, be his powers of recollection what they may be, who could be qualified to give such evidence, and if he should undertake to swear positively to the very words, the jury ought to disbelieve him on that account alone.” This reasoning is appropriate as showing the latitude exercised by the courts in the admission of this character of testimony. In the instant case, no question is raised as to the. correctness of the testimony as transcribed, but simply as to the form in which it has been preserved. We do not find that there is any substantial merit in this contention, and we therefore decline to sustain it.

III. Appellant’s third contention is as to the instruction defining the power of the jury as to the credibility of witnesses, or what is usually termed the failsus in uno, falsus in omnibus instruction. While there are cases in which the giving of in-g£rue^0Ils 0f character is of doubtful propriety, this in our opinion is not one of them. The general rule, however, in regard thereto being that the giving of such an instruction in the absence of evident prejudice to the accused, is to be left to the judgment and discretion of the trial court. [State v. Hickam, 95 Mo. l. c. 322.]

There being a basis in the evidence for the giving of the instruction in the instant case, its correctness is sustained by a long line of well considered cases. [State v. Hutchison, 186 S. W. (Mo. Sup.) l. c. 1001 and cases; State v. Swisher, 186 Mo. l. c. 7; State v. Beaucleigh, 92 Mo. l. c. 497; State v. Gee, 85 Mo. 647.]

If this instruction, however, be analyzed according to the meaning of its words aside from the support it obtains from numerous precedents, it is nothing more than an affirmative declaration of the power possessed by the jury in determining the credibility of witnesses. This being true, it should not be condemned in the' absence of evident prejudice to the appellant.

The civil case (Keeline v. Sealy, 257 Mo. l. c. 527), cited by appellant, will be found to be nothing more than the personal observations of the Commissioner who prepared the opinion in regard to instructions of the character here under review. These observations did not receive the approval of but two judges. Of the other judges, one did not sit, and Judge Geaves expressed in a separate opinion a conclusion adverse to that of the Commissioner. We are content, therefore, there being no error prejudicial to the appellant evident, to leave the propriety of the instruction where it now rests, in the determination of the trial court. We, therefore, overrule this contention.

Finding no error warranting a reversal, the judgment is affirmed.

All concur.


source: Caselaw Access Project

author: PARIS, J.

license: Public Domain

text:
    THE STATE v. LAWRENCE DRUMMINS, Appellant.
    Division Two,
    June 3, 1918.
    1. SEDUCTION: Sufficiency of Evidence: Promise of Marriage. The evidence in this case, though sharply contradicted, was substantial in support of each of the four constitutive elements of the crime of seduction of an unmarried woman of previous good repute under the age of twenty-one years, including that of a promise of marriage prior to the seduction and the necessary corroboration of the promise required by the statute.
    2. -: Period of Gestation: Judicial Notice: Premature Birth: Corroboration of Promise. Courts take judicial notice that the period of gestation is about ten lunar months or 280 days, because it is a matter of common knowledge; but they cannot take judicial notice of the viability of a child born 36 days, or even 22 days, short of the ordinary period of gestation-. Therefore, in a seduction case, where the child was born 272 days after the alleged promise of marriage, and 268 days after the initial act of sexual relations as stated by prosecutrix and 244 days after the date of conception as fixed by her, there should, in corroboration of the promise of marriage, be proof of a lack of perfect maturity in the child from which the inference of a precocious birth would arise.
    3. -: Trior Chastity: - Conflict of Testimony. However convincing' the countervailing evidence of a lack of prior chastity of the prosecutrix may be, if there is substantial evidence both pro and con on the issue, its credibility is not for the appellate court to determine.
    4. Argument: By Prosecuting Attorney! Reference to Defendant. Where defendant did not testify, a statement made by the prosecuting attorney, in the course of his argument to the jury, that “the defendant has not stated anything in the cáse,” excepted to by counsel and unrebuked by the court, is reversible error. [Distinguishing State v. Larkin, 250 Mo. 218.]
    6. -: -: -: Preservation for Review. Where the official stenographer does not record the argument of counsel, the objectionable statement of the prosecuting attorney may be placed in the record by being embodied by counsel for defendant in his objection thereto; and if the prosecuting attorney did not deny that he used the words attributed to him and the court made no effort to ascertain the exact words used, either at the time or when the bill of exceptions was settled, the objectionable argument will be reviewed on appeal.
    6. Witness: Impeachment: Proving Statements Contradictory of Testimony. A defendant is not entitled to impeach his own witness and to go further and prove what the witness had positively stated out of court, by merely showing that the witness had made statements directly contradictory of his testimony and thereby he and his counsel had been misled and entrapped into putting him on the stand; but, in order to warrant impeachment in that manner, the witness must go further and by relating wholly contradictory facts become in effect a witness for the adverse side. A mere failure to relate facts to which the party calling the witness has been led to believe he would testify is not sufficient ground for thus impeaching the witness.
    7. Seduction: Admission of Sexual Intercourse: Proof of Pregnancy and Birth of Child. Evidence of pregnancy of prosecutrix and of the birth of a child is admissible in a seduction case; and where defendant by his counsel in open court has admitted the sexual intercourse, testimony touching the pregnancy and the birth of the child, though it relates to conduct subsequent to the commission ot the crime, is not error, and being competent the manner of proof after such admission lies in the discretion of the trial court.
    8. -: Proof of Later Acts and Other Crimes. It is competent for the State to prove by the prosecutrix that long after the seduction under promise of marriage, she and defendant went to another State and registered and for a night occupied the same room at a hotel, and that upon the trip he attempted to bring about an abortion. The evidence being competent, the fact that it tended to prove the commission of another crime did not render it inadmissible.
    Appeal from. Worth Circuit Court. — Hon. Charles II. Mayer, Judge.
    Reveesed.

      John Ewing, Du Bois & Miller, Kelso & Kelso, for appellant.
    (1) The court erred in refusing the instruction asked by defendant in the nature of a demurrer, (a) Prosecutrix’s evidence shows she was not the pure chaste girl of good repute required to convict defendant. For the defendant to be guilty of the offense charged, prosecutrix must have been of good repute. State v. Howard, 264 Mo. 392; State v. Patterson, 88 Mo. 93; State v. Fogg, 206 Mo. 712; State v. McMahon, 234 Mo. 614; State v. Schenk, 238 Mo. 457; State v. Henderson, 243 Mo. 503. (b) The alleged marriage contract is not sufficiently corroborated to convict defendant. The promise of marriage contemplated by the seduction statute is an unconditioned promise of marriage, under R. S. 1909, Section 5235, which in trials for seduction under promise of marriage requires, that the evidence of the plaintiff as: to such promise be corroborated to the same extent required of the principal witness in perjury. State v. Spears, 183 S. W. 313; State v. Thomas, 231 Mo. 41; State v. Teeter, 239 Mo. 481; State v. Long, 257 Mo. 207. The promise of marriage must precede the seduction. State v. Eisen-hour, 132 Mo. 140; State v. Evans, 267 Mo. 646. (2) Defendant having admitted the sexual intercourse with prosecutrix, all testimony admitted and argument of counsel permitted by the court concerning the pregnancy of prosecutrix or the child born was prejudicial to defendant, incensed the jury against him and was error. State v. Palmberg, 199 Mo. 233; State v. Fogg, 206 Mo. 696; People v. Kearney, 17 N. E. 736. (3) The court erred in refusing to. permit the defendant to cross-examine his witnesses, and to show that their testimony was at variance with the facts and with what they had recently told counsel for defendant it would be. In excluding this testimony and refusing defendant the right to show his surprise at the acts and statements of the witness, the court committed error. State v. Burk, 132 Mo. 371; State v. Bowen, 263 Mo. 282. (4) One of the most serious errors committed in the trial of the case, and one most fatal to the defendant was the language used by the prosecuting attorney, in his argument to the jury, when he said, “The defendant hasn’t stated anything in this case.” State v. James and Johnson, 216 Mo. 401; State v. Snyder, 182 Mo. 523; State v. Quinn, 174 Mo. 686; State v. Helton, 255 Mo. 183; State v. Evans, 267 Mo. 179.

      Frank W. McAllister, Attorney-General, V. P. Le Mire and Henry B. Hunt, Assistant Attorneys-General, for respondent.
    (1) The evidence of pregnancy of the prosecutrix and of the birth and paternity of her child was admissible to corroborate the evidence of her chastity, to establish the date of the seduction, and to identify the appellant as the party who -had seduced the prosecutrix. 35 Cyc. 1302' (VIII); 25 Am & Eng. Ency. (2 Ed.) 237, 240; Underhill’s Crim. Evidence (2 Ed.), sec. 386; State v. Reed, 237 Mo. 224; State v. Fogg, 206 Mo. 709; State v. Palmberg, 199 Mo. 253. ~(2) The matter of allowing one to cross-examine and impeach his own witness is largely within the discretion of the trial court. State v. Bowen, 263 Mo. 282; Beier v. St. Louis Transit Co., 197 Mo. 215; Stale v. .Burks, 132 Mo. 371; Doubler v. United St. Ry. Co., 195 Mo. App. 658; Underhill’s Crim. Evidence (2 Ed.), sec. 220; 1 .Greenleaf on Evidence (16 Ed.), sec; 444; 5 Jones on Evidence, secs. 851-870. P'roper grounds must be laid to authorize the introduction of ex parte statements for the purpose of im-preaching one’s own witness. Bates v. Halliday, 31 Mo. App. 169; State v. Bowen, 263 Mo. 282; State v. Reed, 89 Mo. 170; Commonwealth v. Thyng, 134 Mass. 191; People v. Bushton, 80 Cal. 160; Underhill’s Crim. Ev. (2 Ed.) sec. 235. If the alleged ex parte statements be not denied there is no ground for the introduction of said statements. Deubler v. St. Ry. Co., 195 Mo. App. 658; State v. Bowen, 263 Mo. 282. (3) Objections and exceptions must be saved to 'argument of which complaint is made and the statements objected to must b,e set out in the bill of exceptions. Kelly’s Crim. Law and Practice (3 Ed.), sec. 402; State v. Whitset, 232. Mo. 51P; State v. Harvey, 214 Mo. 408; State v. Clapper, 203 Mo. 549; State v. James, 194 Mo. 2791. (4) Where substantial evidence of guilt is presented a peremptory instruction in the nature of a demurrer at the close of the evidence is properly overruled. State v. Long, 257 Mo. 211; State v. Fogg, 206 Mo. 717; State v. Swan, 239 Mo. 728; State v. Wertz, 191 Mo. 578; State v. Mead, 184 Mo. 254.
   PARIS, J.

Defendant, tried in the circuit court of Worth County upon the charge of seduction under promise of marriage, was found guilty, and his punishment assessed at a fine of $500. and imprisonment in the county jail for a term of twelve months. After the conventional manner he has appealed.

The record is voluminous, but the facts necessary to an -understanding of the several points urged by defendant and discussed in the opinion lie within a moderately circumscribed compass. The young woman in the case resided, when not engaged as a domestic servant, with her mother and stepfather. Her name is not necessary to an understanding of the case, and we shall refer to her simply as the prosecutrix. She was Born, according to her testimony, in the year 1895, and she was seduced' (again according to Per testimony) on or aboiit the 31st day of January, 1915, when she was slightly less than twenty years of age. Prior to her acquaintance and association with defendant, which began about the latter days of December, 1914, she had kept company for longer or shorter periods with some eleven other young men. From one of these named Orville Johnson, she had accepted long ancl most assiduous attentions. Numerous letters from her to Johnson were offered, all of which breathed superheated and-hectic affection. Some of these letters were written to Johnson right around the time she says she promised to marry defendant. One at least of them was written after the date at which she had promised to marry defendant.

Following the meeting of defendant and prose-cutrix, defendant, pursuant to permission asked and given in that behalf, called on prosecutrix on January 3, 1915. He called again on January 10th following, and on this visit he asked prosecutrix to marry him. The suddenness of the situation caused her to take the offer under advisement, which she did for a week. Defendant called again on the 17th day of January, 1915, and prosecutrix being by that time fully advised, agreed to marry defendant. She immediately asked leave of defendant to call in her younger sister, a girl some eighteen years of age, and impart to the latter the important connubial tidings mentioned. When this sister came into the room, prosecutrix told her that she and defendant were going, to be married. Thereupon* the sister made inquiry of defendant as to the proposed date of the interesting and happy event, and was told by defendant, seemingly without consulting prosecutrix, that it would be “some time in June.” In passing this point, it is pertinent and somewhat illuminating to observe that the prosecutrix never made any preparations for this wedding; nor did she ever tell her mother or any other living mortal (save her . sister) till after a child was born; nor did she ever refer to the matter of marriage in any one of the numerous letters which' she wrote to the defendant.

Upon the first call of defendant — that of January 3, 1915 — lie was accompanied by one Don Hagan, who was calling upon the sister of prosecutrix. Illustrative of the rapidity with which the ice of bashfulness was broken, and the remarkable celerity with which acquaintance grew into the most intimate friendship, the prosecutrix relates that she, defendant, Hagan and her sister all rode together, on this first night that defendant had ever called on her, in a single-seated buggy some four miles from her home to the village of Redding, to attend church. On this trip the two girls sat upon the seat of the buggy, and Hagan and defendant sat in the laps of the girls.

Following' the promise of marriage, and on the same evening, prosecutrix says defendant tried to have sexual intercourse with her, 'but she refused to permit the act. He came to see her again on or just after the 31st of January, 1915, this being the fourth call he had ever made on her, and the fourth time he had ever been in her company, and-the fifth time he had ever seen her. On the occasion of this fourth call he renewed his importunities and she yielded upon the suggestion that since they were to marry anyway no harm would result. Following this initial act, sexual intercourse between them continued, occurring whenever opportunity (offered till sometime about March 4th following. From this intercourse pregnancy resulted. Prosecutrix says the specific act from which pregnancy resulted occurred on the 14th of February, 1915. In September prosecutrix went to Kansas to visit some relatives, and on the 16th day of October, 1915, the child was born. ' •

.Through character witnesses testifying generally as to good repute, the prior reputation of prosecutrix for chastity was shown to have been good. Against this the defense offered two ■ witnesses who swore to having had sexual intercourse with prosecutrix repeatedly before the defendant ever saw her. Likewise, many letters written by her to said Johnson, and to the defendant were offered. These letters abound in obscene references. In one or more of them, prosecu-trix makes flippant reference to her condition; likewise in one or more of them, and in one at least which she wrote to Johnson, before she ever met defendant, reference is made to a prior occasion when she either was pregnant or feared that she was. It is fair to say that the prosecutrix denied writing some of these letters. But in the face of the testimony as to the authenticity of all of them, and upon a comparison of their style, construction, spelling and other earmarks, with those conceded to be genuine, denial of their authorship would seem to be well-nigh futile. Since, however, by prosecutrix’s denial, the question of authorship of some of the most obscene of these letters became a question for the jury, which in effect they resolved by their verdict, it would subserve no useful purpose to besmirch' the books with their contents. We are satisfied to say of these letters that their contents are such as to show conclusively that if pros-ecutrix wrote them, slie had wandered so far from the path of virtue before she ever met defendant, as to render her seduction by him an impossibility.

Prosecutrix says that after discovering her condition about the 4th of March, 1915, she advised defendant thereof, and that they decided to go to Mount Ayr, Iowa, and be married. They did go to Mount Ayr, but upon arriving there defendant, she says, told her that it would be better for them not to marry on account of public opinion, but that he would get her some medicine to cause a miscarriage. They occupied the same room in a hotel that night in Mount Ayr, and on the next day returned home. Subsequently she says, and this is corroborated by one of her letters to defendant, he got other medicine for her, but it failfed to relieve her condition. She testifies herself that the defendant is the father of her child, and that she never had sexual intercourse with any other man than defendant.

Defendant did not take the stand in Ms own behalf, but upon the trial, in making objection to certain testimony which was offered, through his counsel he admitted acts of sexual intercourse with prosecutrix, and the State offered upon its side a letter from defendant to prosecu-trix vaguely hinting at marriage. Touching the age of prosecutrix there was no testimony in the case, except her own, and to offset this, defendant offered one1 witness who testified to the statements of prosecutrix, indicating that she was at the time of the alleged promise of marriage over the age of twenty-one years.

Some three or four witnesses were put” upon the stand by defendant and each was asked whether he had had sexual intercourse with prosecutrix. Each of them denied the fact; thereupon the defendant by his counsel, averring surprise, made profert of testimony to the effect that each of these several witnesses had, before they were put upon the stand, told defendant and his counsel that they had had sexual intercourse with prosecutrix, and that in the belief that they would so testify if put upon the stand, they were called as witnesses by defendant. The court refused to permit these witnessess to be impeached by defendant by making the showing which they offered to make of prior,' extrajudicial contradictory statements. This is urged as error. More specific reference will hereafter be made to this question, as well as to the evidence which bears upon other points which we find it necessary to discuss in our opinion, wherein all further facts, if any such there be,.which will serve to make clear these points, will be found.

I. It is ably and strenuously contended that the evidence is insufficient to sustain the charge of seduction, and that a demurrer interposed thereto below ought to have befen sustained. Tjhis contention is obviously a serious one, as the statement of the case makes manifest. The sexual' intercourse was admitted. The four other constitutive elements of seduction under promise of marriage, to-wit, (a) was there a promise of marriage prior to the seduction, (b) was the prosecutrix a woman of previous good repute, (c) was she when debauched under twenty-one years of age, and (d) was she unmarried at the time?1 are put in question by this contention.

We have no hesitation in saying that there was substantial evidence of all of the above elements of this offense, save and except as to the first. The fact that prosecutrix was unmarried is shown by the proof, and is in no wise questioned. The fact that prosecutrix’s age put her under the protecting shelter of the statute wias sharply controverted, but the evidence of the fact was substantial, and it became therefore a question for the jury. There was no countervailing evidence of the proof touching the agreement to marry, so we need not trouble ourselves upon that specific point. The point urged upon this specific phase being the alleged lack of that necessary corroboration required by the statute. [Sec. 5235, R. S. 1909.] If the testimony of the sister of the prosecutrix is to be believed, there is sufficient corroboration of the fact that a promise of marriage existed. For this witness says that she was called into a room wherein defendant and prosecutrix were and there informed by the latter, in defendant’s presence, that prosecutrix and defendant were going to marry. This witness says further that she made inquiry as to the intended date of the proposed hymeneal rites and was told by defendant that it would occur “some time in June.” We have held that a-similar admission on defendant’s part constituted sufficient corroboration. [State v. Long, 257 Mo. 199; State v. Long, 238 Mo. l. c. 394.] While the facts of this hurried and hectic courtship, as well as the testimony of Both the prosecutrix and her sister, bear well-nigh a score of earmarks of incredibility, and while to some sixty or more important and sometimes crucial questions, both these witfiessess either refused to answer, or tbok refuge in an alleged failure of memory, all of these matters and .things were for the jury. And while they found the fact differently from the view inevitably arising upon the present showing of the cold record, they yet saw fit to give the fact credence and the trial conrt approved their conclusion, land since that conclusion is based upon substantial evidence we are without power to interfere. Moreover, one of the letters. written by defendant to the prosecu-trix, is to a limited extent corroborative. For the above reasons we are constrained to overrule this contention.

Period°ofGhUd: Gestation.

II. Cognate to this question of corroboration of the alleged promise of marriage, is also the question as to the date when this promise occurred. Defendant contends with much earnestness that even though there be found substantial corroboration of the fact of a promise of marriage, yet since the child was born on the 16th day of October it must necessarily have been conceived prior to the date fixed by the prosecutrix .and her sister as the date of the promise of marriage. This date prosecutrix and her sister fixed as the 17th day of January, 1915, and prosecutrix likewise swore that the initial act of sexual commerce occurred about the last day of January, or the first day of February, 1915, though prosecutrix swears with much certainty that the conception took place on the 14th day of February, 1915'. From the former date until the birth of the child 258 days, or less, elapsed, and from the latter date to the same event 244 days elapsed. In passing it may b.e said that upon the preliminary hearing of defendant both prosecutrix and her sister gave a different date to the promise of marriage, placing it some ten days or two weeks subsequent to that they fixed at the trial. But of course this contradiction was for the jury.

We judicially notice that the period of human gestation is- about ten lunar months or 280 days. Here the alleged period of gestation fell 36 days short of that period which we judicially notice. We take ' notice judicially of the length of gestation, because it is a matter of common knowledge, and not because there may be open to us learned treatises upon the subject which are not convenient to the hand and eye of the laymen who compose juries. If so it he that a child may he horn and live when only 244 days have elapsed between conception and birth, we are of the opinion that some expert evidence of. the fact should have been offered. At least there should have been proof of lack of perfect maturity in the child from which the inference of a precocious birth would arise, or might have been deduced by the triers of fact. Likewise, we think that some evidence to eke out the infirmity of judicial notice ought to have b.een offered, even should we assume that the child was conceived upon the first sexual access, since from this date to the birth of the child only 258 days elapsed. Por we cannot take judicial notice of the viability of a child born 36 days, or even 22 days, short of the ordinary period of gestation, no more than we could notice that such period in exceptional cases may extend beyond ten calendar months. [Erickson v. Schmill, 62 Neb. 368.] We conclude that absent proof upon the point supra, the evidence touching- the date of the promise of marriage was insufficient.

III. The point of alleged insufficiency of the evidence as to the prior chastity of the prosecutrix resolves itself upon the facts shown into a mere question of credibility. There was much evidence both pro and con. It was therefore a jury question and, however convincing’Ihe countervailing evidence of a lack of the requisite chastity might appear, we are precluded by the jury’s finding upon controverted facts from reversing the case upon this ground. We rule this point against defendant.

IV. Defendant did not testify upon his own behalf upon the trial. Therefore, pursuant to the plain mandate of the statute any reference to his failure to testify is forbidden. [Sec. 5243, R. S. 1909.] In the ccmrse argument the learned prosecuting attorney said to the jury that -“the defendant had not stated anything in the case.” .Thereupon counsel for defendant objected to the remark, stating1 same to the court in Ms objection, and asked that counsel for the State be reprimanded. This the trial court neglected to do, merely remarking in answer to the objection that he had not heard what counsel for the State had said. We think this remark of the prosecuting attorney violated both the letter and the spirit of the statute supra. We have - held less obvious and pointed references to the failure of defendant to testify, to be reversible error. [State v. Snyder, 182 Mo. 462; State v. Weaver, 165 Mo. l; State v. Moxley, 102 Mo. 374.] Neither of the above cases, nor the statute itself, is at all involved in the case of State v. Larkin, 250 Mo. 218. In the latter case defendant had testified in his own behalf, and it was under that state of facts ruled that comment' upon his failure to cover any fact could be made by counsel for the State in. argument, since such a situation does not fall within the statute which expressly forbids comment, where defendant fails to take the stand.

It appears from the record that at the time the objectionable remark was made by the prosecuting attorney the official stenographer did not take it down as it fell from the lips of counsel. It is plain that the stenographer was not keeping a record of the arguments of counsel. The only way therefore in which the remark quoted above got into the record before us was through its being embodied in the objection of counsel for defendant, thus:

“And thereafter, to-wit, in the course of the argument to.the jury of Mr. James Anderson, counsel for the State, the following occurred, to-wit:
“Judge Kelso: We object to the statement of counsel and ask the court to reprimand him for saying that the defendant hadn’t stated anything in this case.
“The Court: I didn’t hear what he did say.
“Counsel for defendant: We except to the ruling of the court.”

Learned counsel for the State insist that this showing is not sufficient. In short, it is contended that the exact language of the prosecuting' attorney- ought to have been taken down and put bodily into.the record, and that it is not sufficient for the purpose of review here to embody the language used in the objection made. We do not agree with this contention. We know from our own knowledge of the practice that nowhere is it the custom in all eases for the official stenographer to take down the entire arguments of counsel. That on the contrary it is the ordinary practice to take down only such parts thereof as are objected to, and it is obvious that the objection made must necessarily come subsequent in point of time to the utterance in the argument of the language to which objection is made. Here the whole matter occurred in open court, and within hearing of the trial judge, and of the prosecuting attorney, who is charged with having uttered the objectional language. If the trial court did not clearly understand the words used, he should have stopped the argument and made inquiry as ,to the truth of the objection and as to the correctness of the language said to have been used. If the prosecuting attorney- was quoted incorrectly, he was present and could have disclaimed the charge of having made the objectionable statement. In the situation presented we must assume that the language which counsel for defendant said was used, was actually used, because, if it was not in fact so used, as charged, the meet and proper time for correction was at the moment of the making of the. objection, or, at latest, when the bill of exceptions (from which we quote the excerpt) was settled and signed. But we are not left to reason a priori upon this question. It has been held in accordance with the view taken, that the manner here adopted of saving the objectionable argument for review was sufficient. [State v. James et al., 216 Mo. l. c. 402.] In this case at the page cited it was said:

“It is only necessary to say upon that question that in our opinion the improper remarks are sufficiently preserved in the record. Counsel for the appellants made the objection and stated'what -the remarks were. The attorneys representing the State were present. They did not insist before the eonrt that they did not make any snch remarks; nor is it disclosed by the record that the court did not fully recognize that such remarks were made, for the court proceeds to rule upon the objections just as made, •and in one of the objections it is said, ‘The objection is made to the statement of the prosecuting attorney saying’ etc. That is a plain, clear statement that the prosecuting attorney made the remark in his address to the jury, and that they were made to the jury is sufficiently disclosed by the record, for the reason that the attorneys representing the State and the court fully recognized that they were made, 'but evidently felt that it was legitimate argument.”

It follows that the point was properly saved, and in our opinion the contention of reversible error is well taken.

Y. Defendant put a' witness on the stand and made inquiry of him as to specific acts of sexual intercourse of the witness with the prosecutrix. The witness swore that he had never had sexual intercourse with the prosecutrix. • Thereupon defendant’s counsel asked the witness whether the latter had not shortly before and outside the court-room told counsel that th'e witness had had intercourse with prosecutrix. The witness denied making such a1 statement. Counsel for defendant thereupon offered to prove that the witness had in fact so informed counsel, and that counsel had put the witness upon the stand in the belief in good faith that he would swear to the same facts upon the stand that he had related to counsel before he was sworn as a witness. The court refused to admit this testimony, and defendant contends that such refusal is error. The identical error is urged as to several other witnesses called by defendant, but the case of one of them will serve as a type for all of them.

We think the contention must be disallowed. We held in the case of State v. Bowen, 263 Mo. l. c. 280, that it is not sufficient to warrant a party who puts a witness on the stand, in impeaching1 such witness (by showing extra-judicial statements contradictory of the testimony of the witness upon the stand), that the witness merely fails, or refuses, to tell the facts which h’e had theretofore related extra-judicially, or fails to tell all of such facts, hut, in order to warrant impeachment in the mode stated, the witness must go further, and by relating wholly contradictory faets, become in effect a witness for the adverse side. In the latter event, the party calling the witness is entitled to show that he was misled and entrapped by the witness’s former words and attitude into calling the adverse witness. He is not so entitled, however, when the witness merely fails to relate facts which the party offering him had been led to believe he would relate. [State v. Bowen, supra; State v. Burks, 130 Mo. l. c. 373; Clancy v. Transit Co., 192 Mo. 615; Beier v. Transit Co., 197 Mo. 215.] We think therefore that-this contention must be disallowed.

VI. Upon the trial defendant by his counsel admitted that he had had sexual intercourse with pros-ecutrix. Having conceded the above fact he objected to any and all testimony touching the birth’ of the child and the pregnancy of the prosecutrix. For mneh the same reason he objected to the State’s evidence of a trip made by him and the prosecutrix to Mount Ayr, in the State of Iowa1, where, according to the testimony of prosecutrix, they registered at a hotel and occupied for one night the same room. A.11 of this occurred long subsequent to the seduction. It is obvious that, absent the admission of defendant by his counsel in open court of the fact of intercourse, evidence of the pregnancy of prosecutrix and the birth of the child would be admissible. This for the reason that such pregnancy would be proof indisputable that some man had had sexual intercourse with her. The birth! of the child would likewise he competent in order to show the fact of intercourse and the approximate date of the specific act from which conception occurred, since such date hears an important relation here to the date at which the promise of marriage was made. Did this judicial confession of the fact of intercourse serve to render proof thereof and of the facts of pregnancy and birth of the child, reversible error? We think not. The manner of proof of these facts after the admission of the sexual relations lay thereafter within the discretion of the trial court, and it would seem impossible to bottom reversible error upon the manner in which the court exercised that discretion upon this trial.

VII. What we say upon the point supra likewise applies, we think, to the objection to the State’s evidence of the trip to Mount Ayr, Iowa, and to the tilings occurring thereon. To the latter testimony it was further urged in the objection that this evidence tended to prove the commission of another crime by defendant, and that for this reason it embodied an additional vice not in the first contention. (Referring, mayhap, to a violation of the so-called Federal “White Slave” Act). Absent the admission of sexual intercourse it is clear that 'this evidence was competent. For the reasons given for this trip tended to prove the intercourse alleged, as well as the promise of marriage, and the efforts made upon the trip to bring about an abortion tended also to prove intercourse and in a way the recognition by defendant of the paternity of the child. Being competent it was properly admitted, and the fact that the circumstances tended to prove the commission of a separate crime was merely defendant’s misfortune, and does not in any wise militate against the admissibility of the evidence. For the rule is fairly well-settled that when evidence is admissible for any purpose, in the specific charge upon trial, such evidence will not be excluded merely because it may also tend to prove the commission of another crime. [State v. Banks, 258 Mo. l. c. 493; State v. Gordon, 253 Mo. 510.] We are constrained to rule this contention against the defendant.

For the errors noted let the case he reversed and remanded for a new trial consistent with what we have herein written. And it is so ordered.

All concur.


author: WALKER, P. J.

text:
    THE STATE v. W. E. STEWART, Appellant.
    Division Two,
    June 3, 1918.
    1.INFORMATION: Oath. The verification of an information hy the prosecuting attorney, that, “upon his oath, the facts stated in the information are true according to his best information and belief,” complies with the statute (Sec. 5057, R. S. 1909) and is sufficient.
    2.JURY: Summoning and Impaneling: Disqualifying Sheriff: Upon Oath of Prosecuting Attorney Alone. The act of the trial court, upon the application of the prosecuting attorney alone, alleging prejudice on the part of the sheriff in favor of defendant in designating the coroner to select the venire and perform the duties of sheriff, and, upon formal objection by the defendant to the coroner, alleging prejudice against him, the appointing by the court of an elisor to summon the venire and perform the duties of sheriff, will not be interfered with upon appeal, unless it appears that it was arbitrary and unjust. Whether the trial court acts upon the unsupported affidavit of the prosecuting attorney, or requires proof of the prejudice of the sheriff, is left to his discretion.
    3. -: Retaining Veniremen Selected by Sheriff Before Disqualification. The method prescribed by statute for summoning and impaneling jurors is directory; and if the elisor, after the disqualification of the sheriff and coroner, retained certain members of the trial panel summoned by the sheriff before he was disqualified, that fact is not error in the absence of a showing that such members were otherwise disqualified.
    4. EVIDENCE: Telephone Call for Deceased. Under the circumstances of this case, it was not error to permift a witness for the State, who resided at the house where the deceased roomed, to testify that there was a telephone call for him a short time before he was killed In defendant’s office and that it was a man’s voice at the phone, in response to which witness called deceased, who answered the phone and soon thereafter left the house. Even if by remote inference the testimony could be held to be prejudicial, its harmful effect was neutralized by the court, upon the prosecuting attorney’s failure to connect defendant with the call, in directing the jury to disregard the testimony.
    5. -: Facial Expression of Defendant. Witnesses may testify to their impressions or opinions as to matters open to the senses, but otherwise incapable of exact description. Hence, it was' not error to permit a witness to testify that defendant’s look a few minutes after the homicide was that of “desperation and determination.”
    6. -: HOMICIDE: Relations of Deceased With Wife of Defendant. It is not error to refuse to permit defendant to prove circumstances which would tend to show that deceased and defendant’s wife had sustained improper relations, where there is no evidence that the circumstances had been communicated to the defendant.
    7. -: -: Provocation. A defendant on trial for murder is not entitled to prove by other witnesses facts concerning his wife’s relation with deceased of which he had no knowledge, and which therefore could not have influenced his homicidal action. Nor should he be permitted to prove by other witnesses that what she had said to him concerning such relations were true. Such testimony does not tend to show provocation for his crime.
    8. -: Cross-Examination of Defendant. The cross-examination of defendant concerning matters which, from their evident nature, could not have proved prejudicial to him upon any theory, is not reversible error.
    9. INSTRUCTION: Credibility of Defendant. An instruction concerning the credibility of witnesses, in the usual phraseology, which does not single out defendant from other witnesses, does not conflict with the ruling in Finkelstein’s case.
    10. -: Accidental Homicide: Self-Defense. Where the defense relied upon was accidental homicide, and there was no evidence of self-defense, it is not error to refuse an instruction on self-defense.
    Appeal from Livingston- Circuit Court. — Hon. Arch B. Davis, Judge.
    Affirmed .

      Scott J. Miller for appellant.
    (1) The sheriff subpoenaed six jurymen, and thereafter, the elisor without any authority, returns forty men, out of which return six men were chosen who, added to the six already summoned by the regular sheriff, made up the twelve men before whom the defendant was tried. He should have been fairly tried. He did not have twelve jurymen served and summoned by the sheriff but had a jury composed of twelve men, six of whom were legally served by the sheriff and six of whom were served by the elisor. (2) The affidavit of the prosecuting attorney, ' alone, is not sufficient to disqualify the legally authorized sheriff, elected by the people, to impanel a jury. It was an assumable fact and the defendant had the right to have the matter decided upon the testimony before the court. In this case there could have been no possible reason for filing this affidavit, because the sheriff offered to testify, as shown by the record, that he was not of relation, had never seen the defendant until the night of the homicide, was not prejudiced for or against him. The rights of the defendant were not properly guarded when an outsider could be called in, of whose fitness for the important position the defendant had no knowledge. (3) The foreman of the jury that returned the verdict was one of the jurors selected by the sheriff. If he had any prejudice, it was in favor of the State instead of in favor of the defendant, as shown by his return of the verdict against the mass of testimony adduced in this case following the killing of the deceased. The charge that the sheriff was biased in this case is facetious, and by the judgment of the court it was shown to not exist. (4) The information was not properly sworn to, as the evidence shows that the prosecuting attorney knew none of the facts, but swears to it as a fact as known and seen by him and takes the place of any other' witness who was - present and saw the - affray. When the prosecuting attorney swears to the information, as any other witness, he must have knowledge of the fact. It is not sworn to as an officer hut as a witness, and the evidence shows that he had no such knowledge and, therefore, the information is illegal. (5) The testimony of Helen Brice, of itself, would be harmless, but it poisoned the mind of the jury because the State attempted to show that the deceased was called by the defendant, and because somebody called the deceased it must have been the defendant. Could anything be more prejudicial, and especially when there isn’t a bit of testimony anywhere that the defendant ever communicated with the deceased? This testimony was vicious and after it was once admitted could not, by instructions or otherwise, be taken away from the jury. (6). The witness was permitted to say that the defendant had a look of “desperation and determination,” and the sanction of the court was placed upon this vicious testimony. (7) By the testimony of Charley G-olden the defense attempted to show that he held a conversation with the deceased in reference to the wife of the defendant. (8) Mrs. Black was asked “if on Saturday evening before this trouble she saw the deceased and Mrs. Stewart go to this house,” and the court sustained the objection, giving his reasons. The deceased was the despoiler of defendant’s home and this testimony tended to show it, and the jury should have had the benefit of it. The same I might say of the testimony of Mrs. Green, who was another neighbor to the once happy home of this defendant. The cross-examination of defendant concerning matters as not brought out by the examination in chief, was improper. There is not one word said in the direct examination about any of this cross-examination. State v. Bonds, 199 S. W. 1; Sec. 5242, R. S. 1909. (9) Instruction 17 is bad in asserting “the interest of the witness, if any, in the result of the trial, the motive, if any, actuating the witness to testify.” The jury told in this case that the defendant had a motive and that the testimony however honestly and faithfully given might, on account of this motive and the fact of his being the defendant, would be the motive to testify falsely to retain his liberty.

      Frank W. McAllister, Attorney-General, Thomas J. Cole, of counsel for respondent.
    (1) The objection that the jury has not been legally summoned and impaneled in a criminal case comes too late if made for the first time -in the motion for new trial. State v. Sansone, 116 Mo. 11; State v. Grant, 152 Mo. 71; State v. Smith, 114 Mo. 423. (2) The bill of exceptions in this case does not show that a motion to quash the panel was ever filed in this case, and, while it is true that a. motion to quash the panel is set out in the record proper, that fact will not avail the appellant here. State v. Price, 186 Mo. 143. The fact that appellant has copied his motion to quash the panel in his motion for new trial will not serve the purpose desired. The motion for new trial cannot be made to serve the purpose of the bill of exceptions. State v. Pollard, ■ 139 Mo. 228; State v. Ashcraft, 170 Mo. 409. (3) The information in this case is sufficient. State v. Clay, 201 Mo. 681; State v. Long, 201 Mo. 667; State v. Privitt, 175 Mto. 223; State v. Brown, 168 Mo. 453-5; State v. Kindred, 148 Mo. 279. (4) Instruction 9 correctly declares the law to be that if deceased was accidently wounded by the first shot and that thereafter defendant fired the shot which killed deceased that defendant could not be acquitted on the ground of accidental homicide. (5) Instruction 14 clearly stated that whatever were the relations between defendant’s wife and deceased that the fact of such relations did not of itself constitute a defense to the charge. State v. Jones, 78. Mo. 282. (6) Instruction 16 correctly states that the question whether or not deceased had improper relations with defendant’s wife was not an issue on the trial. (7) Instruction 17 was the usual instruction as to the credibility of the witnesses. State v. Hudspeth, 159 Mo. 200. (8) That the evidence is sufficient to sustain the verdict. State v. Underwood, 263 Mo. 685; State v. Oorcelia, 250 Mo. 425.
   WALKER, P. J.

The appellant was charged by information in the circuit court of Livingston County with murder in the first degree, in having, on July 6, 1916, shot .and killed one Karl Schlobohm. A trial resulted in a conviction of murder in the second degree, the punishment being • fixed at ten years in the Penitentiary. From this judgment-appellant seeks a review in this court.

The deceased was killed in the appellant’s office, in the city of Chillicothe, by shots from a revolver fired by appellant. The latter was an insurance agent. He spent the greater part of July 6, 1916, the day of the homicide, at another town in Livingston County, transacting business for -his company. Late in the afternoon of that day he returned to Chillicothe .and made inquiry at different places for deceased. He said that fie wanted to talk to him, and protest against the attentions of deceased to his wife. After these inquiries, from which he - learned where the deceased roomed, he went to a second-hand store, bought a revolver, and at another place obtained some cartridges with which he loaded it, and took it to his office and laid it on a desk near where he usually worked. He then went to a restaurant and got his supper, after which he returned to his .office.

It appears that the deceased heard that the appellant had been inquiring for him, and on the same day at some time between 7:20 and 7:30' o ’clock P. M., he went to the office of the appellant, and upon entering, asked the latter what he wanted with him. Appellant asked the deceased to be seated, and he would inform him. Deceased sat down, and appellant told him that his (appellant’s) wife had told him the night before of the conduct of deceased towards her, and asked -him if he would not leave the town and molest her no more. Deceased told him that he would do as he pleased with appellant’s wife, so long as she did not object to his conduct; that it was none of appellant’s business. Appellant then stated in detail what his wife told him. Deceased admitted the charges to be true, saying she was just as much to him as she was to the appellant. At this jucture, according to appellant’s statement, both attempted to secure possession of the pistol, which, during this time, had been lying on the desk between them. A scuffle ensued, in which the deceased was shot twice and killed. One shot penetrated his heart, causing death almost instantly. There is some testimony that during the scuffle, and after the deceased had been shot the first time, he ran to a window and called for help.

The foregoing is, in the main, a resume of the appellant’s testimony. Other incidental facts and physical circumstances are present, indicative of the improbability of portions of this testimony, which the jurors in their finding evidently did not Believe. These facts need not, therefore, be detailed, as their presence will not, in the view we take of this case, materially affect the conclusion reached. If it becomes necessary to refer to this testimony we will do so in the discussion of the errors assigned.

I. The verification of the information by the prosecuting attorney is alleged to be insufficient. In substance, it states that the prosecuting, attorney, upon his oath, says that the facts stated in the information are true according to his best information and belief. This, is in compliance with the statute (Sec. 5057, R. S. 1909) and is not subject to valid objection. If an information is attested by a private person, it is necessary for the oath attached to be made upon actual knowledge, such as would authorize the affiant to testify as a witness. Made by the prosecuting attorney, however, it may be based upon such information as he may feel warranted in believing and relying upon. [State v. Temple, 194 Mo. l. c. 241; State v. Gregory, 178 Mo. l. c. 55.] This contention is, therefore, without merit.

II. The maimer in which the jury was impaneled is assigned as error. On the sworn application of the prosecuting attorney, alleging prejudice on the part of the sheriff in favor of the appellant, the court designated the coroner, under the authority of Section 11218, Revised Statutes 1909, to select the venire and perform all the other duties of the sheriff. The appellant, thereupon, formally interposed objections to the court’s designation, alleging that the coroner was prejudiced against him. The court, under Section 3864, Revised Statutes 1909, then appointed an elisor to summon the venire and perform the duties of the sheriff in the cause. The appointee appeared, qualified by filing the statutory oath and proceeded to the discharge of his duties. The specific ground of appellant’s contention is, that the court should not have set aside the sheriff upon the sworn affidavit alone of the prosecuting 'attorney, as to his prejudice.

This contention has heretofore received the de-. liberate consideration of this court in a number of cases; the conclusion reached being that we will not interfere with the trial court’s action in a matter such as is here under review, unless it appears that it was arbitrary and unjust. This, for the very sufficient reason that in the absence of prejudice there is no ground of complaint. Therefore, whether the trial court acts upon the unsupported affidavit of a prosecuting attorney, or requires proof of the prejudice of the sheriff, is a matter left to its. discretion. [State v. Jeffries, 210 Mo. l. c. 323; State v. Hunter, 181 Mo. l. c. 333; State v. Lanahan, 144 Mo. l. c. 38; State v. Hultz, 106 Mo. l. c. 49.] There is no intimation that the individual jurors, either those constituting the array, or the trial panel, were subject to objection. Under such circumstances, nothing appearing that the court was not prompted by a wise discretion, its action will not be disturbed.

Supplemental to the foregoing contention, it is stated in the motion for a new trial that certain members of the trial panel were summoned by the sheriff before be was disqualified, and that the others were summoned by the elisor. If this be true, although the motion for a new trial does not prove itself, its effectiveness being dependent upon something more than its own terms, this contention will not avail in the aN senee of a showing that the members of the jury were otherwise disqualified. This, for the reason that the method prescribed by the statute for the summoning and impaneling of jurors is directory. [State v. Jackson, 167 Mo. l. c. 295; State v. Matthews, 88 Mo. l. c. 123.]

It is questionable in the condition of the record, whether appellant’s contentions, as above set forth, have been preserved in a manner to authorize their review; notwithstanding this fact, we have considered and disposed of them on their merits.

III. It is contended that error was committed in permitting a witness, Helen Brice, who resided at the place where the deceased roomed, to state that there was a telephone call for the latter a short time before be left,, the evening of the homicide; and that it was a man’s voice at the phone, in response to which she called the deceased, who answered the phone, and soon thereafter left the house. This testimony was admitted upon the statement of the prosecuting attorney that the appellant would be connected with the call. Hailing in this, the court ordered the testimony stricken from the record, and directed the jury to disregard it. Only by > remote inference can this testimony be held to be prejudicial. Failing to connect the appellant therewith left to the jury no reasonable ground to conclude that it was he who made the call. If, however, it be reasoned that the jury might therefrom have concluded that it was the appellant, the testimony viewed in its most unfavorable light cannot be regarded as injurious, for the reason that it constituted nothing more than a presumption based upon an inference; this, in the presence of express testimony that the appellant had, during the afteruoon preceding tlie homicide, made personal inquiry of a number o:f persons as to the whereabouts of the deceased, will not constitute such an error as to work a reversal. Aside from this theory, howeyer, the court’s affirmative declaration, excluding this testimony from the consideration of the jury, neutralized any harmful effect it might otherwise have had.

The testimony as tó a direction stated by a witness to have been given by some one from the window of the appellant’s office, when the deceased was in the street below inquiring as to its location, coupled with the appellant ’s testimony that he was the only one in his office at that time, is sufficient to render the testimony admissible as one of the relevant circumstances immediately preceding the homicide.

The court’s refusal to strike out the statement of a witness that the appellant’s look a few minutes after the homicide was “that of desperation and determination,” is urged as error. The objection raises no question as to the witness not 'being an expert or one not competent to define the state of the mind from the expression of the countenance, but simply that his- testimony was not a statement of a fact, but a mere expression- of opinion. The general rule in regard to testimony of this nature is that witnesses are permitted to testify to their impressions or opinions on such matters, because there is no other manner in which the evidence can be gotten before the jury. Our reports afford numerous illustrations of the admissibility of this character of testimony, which is open to the senses but otherwise incapable of exact description: For example, in State v. Ramsey, 82 Mo. l. c. 137, a witness was allowed to state that a certain man “looked like he was scared.” In State v. Parker, 96 Mo. l. c. 393, witness was permitted to state that certain weeds looked like they had been pressed down by one’s knees. In State v. Buchler, 103 Mo. l. c. 207, testimony of this character is held admissible to determine the intent and purpose of the accused; that while a witness must testify as to facts, there are manifestations, expressions, and conditions, which the language of ordinary persons cannot reproduce. In Partello v. Railroad, 217 Mo. 645, a witness was permitted to give his opinion of the health of an injured plaintiff whom he had had opportunity to observe. In State v. David, 131, Mo. l. c. 395, it was held competent on a trial for murder for a witness to state how deceased acted at the time he was said to have been poisoned. Under these authorities, the admission of the testimony in question was not error.

The court did not err in refusing to permit witnesses to answer certain questions asked by appellant’s counsel. These were in regard to the age of appellant’s oldest child; as to whether or not appellant kissed his wife the morning of the homicide; as to the state of the appellant’s health; as to why he ceased to be a minister; and whether or not he was a good citizen. The utter irrelevancy of these inquiries is apparent.

As to the offer to prove by the testimony of one Charley Golden, and Mrs. Dr. Black, circumstances which would have tended to show that deceased and appellant’s wife had sustained improper relations, it is sufficient to say that there was no evidence that these circumstances had been communicated to the defendant. The admission of this testimony, therefore, would only have tended to mislead the jury as to the trial issue in the ease. [People v. Webster, 139 N. Y. 73.] We discuss this contention elsewhere in passing on appellant’s objections to certain instructions.

Other objections to the admission and exclusion of testimony have been considered, and are overruled, either 'because they have not been properly preserved in the record or that the court’s ruling did not constitute prejudicial error. This is especially true in reference to the cross-examination of the defendant, to which the appellant objects. In State v. Sherman, 264 Mo. l. c. 381, we discussed with some degree of care the application of the statute (Sec. 5242, R. S. 1909) limiting the cross-examination of a defendant, holding that the same should be limited to matters which, by reasonable construction, could not be regarded as material to the cause; or could not, from their evident nature, have proved prejudicial to the defendant upon any theory. The cross-examination here complained of was of the latter character. While a fair interpretation of the record is that it was excluded by the trial court, and hence could have been disposed of on this ground, we, nevertheless, have -analyzed same and find that, if it had been preserved, it was not harmful.

IV. Instruction numbered 9, given by the court, ^ase<^ on the evidence of accidental homicide, correctly declared the law under the facts. The distinction between direct and circumstancial evidence is correctly defined in instruction numbered 11, given by the court. [State v. Bauerle, 145 Mo. l.] Instruction numbered 14, in regard to the relations, if any, which may have existed between appel-ant’s wife and deceased, as constituting no defense to the charge here made, correctly states the law. [State v. Jones, 78 Mo. l. c. 282.]

Instruction numbered 16, further declaratory of the doctrine announced in instruction numbered 14, does not take from the jury any proper testimony on behalf of the appellant and is not subject to objection.

In discussing the propriety of instructions numbered 14 and 16, a more extended review of the rule regulating the character of evidence upon which these instructions are based is. necessary than has heretofore been given in the consideration of the testimony.

Appellant, while not denied the right to state to the jury what his wife had informed him, as to the conduct of the deceased towards her, was not permitted to prove by the testimony of certain witnesses, facts relative to the conduct of deceased, of which he had no knowledge, and which could not, therefore, have influenced his .action. Neither was he allowed to introduce the testimony tending to show that what his wife told bim was true. The trial court did not err in this regard. The admission of the testimony of the appellant gave tlie latter whatever benefit bis own testimony afforded as tending- to show provocation for his crime; but this did not authorize the admission of the testimony of witnesses as to other facts of which the appellant had no knowledge. This general rule is announced in 21 Cyc. 951 on this question: “A defendant on trial for the murder of his wife may show that he was informed, and believed, that she had been unfaithful, as bearing on the question of provocation. . . . Reports and rumors, however, of the infidelity of a wife cannot be shown in the absence of proof that defendant had knowledge thereof.” While this .character of testimony is more particularly admissible as a ground of provocation where a defendant is charged with the murder of his wife, believing her to have been unfaithful, the testimony having been admitted on behalf of the appellants in this case, he has no ground of complaint on occount of the broad construction given by the trial court to this rule. Certainly,, under no circumstances, could he have been influenced by any facts of which he was ignorant. The cases of State v. Downs, 91 Mo. 19; State v. Grugin, 147 Mo. 39; Smithson v. State, 137 S. W. (Tenn.) 487, cited by appellant in support of his contention that the court erred in excluding evidence of uncommunicated facts to the defendant, differ materially in their facts from those in the case at bar, and hence do not sustain the appellant’s contention. The distinction between the admissibility or non-admissibility of testimony of this character, as tending to show provocation, will be found fully discussed in People v. Hurtado, 63 Cal. 288; People v. Webster, 139 N. Y. l. c. 79; Combs v. State, 75 Ind. 215; State v. Murray, 83 Kans. l. c. 153; State v. Albanes, 83 Atl. (Me.) l. c. 550. These authorities fully sustain the conclusion we have reached in regard to the particular matter here under discussion.

In Shepherd v. Comm., 119 Ky. 931, the facts are entirely different from those in the instant case. There the defendant was not permitted to state what his wife had told him; here, as we have stated, the appellant was not so limited.

The giving of instruction numbered 17 is urged as error. It is the formal instruction in regard to the credibility of witnesses, clothed in the usual phraseology, and is not subject to tenable objection. The basis of appellant’s objection is evidently the ruling of this court in the Finkelstein case. That had reference solely to the testimony of the defendant, and it does not, even by remote implication, hold that instructions of the character of the one here under review are error.

' Refusal of the trial court to give appellant’s instructions designated literally F, Gr, H, and 0 is complained of. F is based on the theory of self-defense, of which there was no testimony. The defense deduced from all of the evidence, and on which appellant relied, was that of accidental homicide.

Instruction iGr was simply a comment on the testimony, and hence properly refused.

Instruction H was misleading in not attempting in any manner to define the different degrees of homicide. The law had been properly declared in regard thereto, and this instruction, if correct was, as a consequence, unnecessary. The theory of the defense, based on accidental homicide, had been fully and correctly declared in instructions given, and hence Instruction O’ was properly refused.

Counsel for appellant has with painstaking care pressed upon our attention many errors alleged to have been committed in this case; in addition he has run the gamut of advocacy in an appeal for the protection of the inviolability of the home and the right of the husband to protect same.

As to the first, we have dispassionately reviewed them wherever properly preserved for our consideration; as to the second, mindful of our province as a court of errors alone, we have sought to avoid the influence of counsel’s eloquent appeal, proper only before the triers of the facts, and to confine ourselves to the record. Thus charted, we have sighted no port warranting a reversal. The judgment will, therefore, he affirmed.

All concur.


author: BOND, C. J.

text:
    THE STATE ex rel. W. T. RAY, Collector of the Revenue, Appellant, v. ARCADIA TIMBER COMPANY.
    In Banc,
    June 13, 1918.
    1. DRAINAGE DISTRICT: Correcting Judgment of Incorporation: After Expiration of Term. In tibie absence of a statutory provision, the county court is not authorized, upon the discovery that a corporate owner of land in the drainage district had neVer been notified by its correct name, to set aside, at a subsequent term, its'former judgment affirming the report of the viewers and engineers and to direct its clerk to reapportion the total costs of the improvements, taxing such owner by its correct name with its proportion of the benefits. The organization of the drainage district involved, as to all property owners therein, except such corporate owner, a complete assessment of property within the district and a final judgment, and at the expiration of that term all power of the county court to set aside the judgment was lost.
    2. -: -: -: Beneficent Purpose of Statute. The rule that the construction of the statutes relating to the organization of drainage districts should be broad and liberal in order to carry out their beneficent purposes, will not warrant the county court entrusted with the organization of such districts in assuming a grant of power which is withheld by the statute and which would be violative of the express provisions of the civil code. In such proceedings it exercises a special and limited authority, measured by the terms of the statute; it is not a court of general jurisdiction.
    Appeal from Cape Girardeau Circuit Court.- — Ho». Franh Kelley, Judge.
    Affirmed.

      Jno. Me Anally for appellant.
    (1) “A judgment is the final determination of the right of [all] the parties in the action.” Sec. 2090, R. S. 1909; Deck v. Wright, 135 Mb. App. 539'; State v. French, 118 Mo. App. IS; Baker v. St. Lonis, 189 Mo. 378; State ex rel. v. Klien, 140 Mo. 510. (2) “Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants.” Sec. 2091, R. S. 1909; Thompson v. District, 71 Mo. 501; Hill v. Chowning, 93 Mo. App. 625; Mo. Pac. Ry. Co. v. Carter, 85 Mo. 450. (3) The' judgment of confirmation of the report of the viewers and engineer under the provisions of Art. 4, Chap. 122', R. S. 1899, now Art. 4, Chap. 41, R. S. 1909, is in effect, several as to each tract of land of forty acres or less. Jones v. Lake View, 151 Ill. 680; Kelley v. Chicago, 148 Ill-. 95; Delamater v. Chicago, 158 Ill. 580; Gribler v. Mattoon, 167 Ill. 19; Phila. & Reading C. & I. Co. v. Chicago, 158 Ill. 19; Beach v. People ex rel. Kern, 157 Ill. 662; Bliss v. Chicago, 156 Ill. 585'; Rasmussen,v. People ex rel. Kern, 156 Ill. 574; Browning v. Chicago, 155 Ill. 314. (4) The requirements of Sec. 8287, R. S. 1899, amended, Laws 1905, p. 180, Laws 1907, p. 341 (Sec. 5587, R. S. 1909), that upon the filing of ' the viewers’ report the clerk shall immediately set the hearing of the same for some day of the next regular term of the county court, and “thereupon” issue a notice, directed, hy name, to every person returned by the engineer and viewers as the owner of every lot, etc., is directory only. Lewis’s Sutherland on Stat. Const., secs. 610, 611, 612, 613, 614, 615 - and 616. (5) When the provision of the statute is in affirmative words, and there are no negative words, and it relates to the time or manner of doing the acts which constitute the chief purpose of the law, or those incidental or subsidiary thereto, hy an official person, the provision has been unually treated as directory. In re Petition of Douglass, 58 Barb. 174; Atty. G-en. v. Baker, 9 Rich Eq., 521; State v. Harris, 17 Ohio St. 608; Bladen v. Philadelphia-, 60 Pa. St. 464; Neal v. Burrows, 34 Ark. 491; Mount v. Kesterson, 6 Col. 452; Cheatham v. Brien, 3 Head, 552; Atkinson v. Rhea, 7 Humph'. 59; Sellars v. Fite, 3 Baxt. 131; In re Johnson, 98 Cal. 531, 21 L. R. A. 380. (6) A statute (as does the one under consideration), specifying a time within which a public officer is to perform an official act regarding the rights and duties of others, is directory, unless the nature of the act to he performed, or the phraseology of the statute, is such that the designation of time must he considered as a, limitation of, the power of the officer. State v. Hamilton, etc. Ry. Co., 113 Mo. 301; State v. Ringo, 42 Mo. App. 115; St. Louis Co. Ct. y. Sparks, 10 Mo. 121; Granite Bit. Pav. Co. v. McManus, 114 Mo. App. 607. (7) The finding of the county court that due notice of the filing of the viewers’ report had been given was not a final and binding judgment, because the same was untrue, in that the record disclosed that Arcadia Timber Company had not been notified, and the court was without jurisdiction to adjudicate the report as to it, and its judgment of confirmation was void as to it. State ex rel. Douglass v. Arcadia Timber Co., 178 S. W. (Mo.) 93; 23 Cyc. 1241; Hewitt'v. Weatherby, 57 Mo. 278; Ray Co. v. Barr, 57 Mb. 291; McLaughlin v. Bank, 60 Mo. 437; Adams v. Cowles, 95 Mo. 507; Covington v. Chamblain, 156 Mo. 574; Lance v. Garberm, 105 Mo. 359; Gravis v. Ewart, 99 Mo. 13; Fithian v. Monks, 43 Mo. 520; Clark v. Bettelheim, 144 Mo. 258; Janney v. Spadden, 38 Mo. 402; Fischer v. Sickmann, 125 Mo. 165; Westmeyer v. Gallenkamp, 154 Mo. 28; Roberts v. Best, 172 Mo. 77, 82.. (8) It was the duty of the court, and it had jurisdiction to bring all the parties in interest before it, and to cause as many notices to be given as were sufficient, and necessary to accomplish that result. Sec. 8287, R. S. 1899, amended, Laws 1905, p. 180, Laws 1907, p. 341; Sec. 5588, R. S. 1909; Secs. 1786, 3863, 4080, R. S. 1909; Barnes v. Construction Co., 257 Mo. 195, 197. (9) Arcadia Timber Company had the right to waive the issuance of notice of the filing of the viewers’ report, and voluntarily enter its appearance, whioli it did, by filing its exceptions and application for a change of venue. Wicecarver v. Ins. Co., 137 Mo. App. 255; Thompson v. Merc. T. M. Ins. Co., 217 Mo. 485; New-court v. Railway, 182 M:o. 687; Sec. 1756, R. S. 1909; Harding v. Carthage, 105 Mo. App. 19-21; Baisley v. Baisley, 113 Mo. 551; Fiedler v. Schroeder, '591 Mo. 36; Barnes v. Construction Co., 257 Mo. 197. (10) Conceding that the county courts are of limited jurisdiction, and their powers must be gathered from the law, yet, the laws of the State for the reclamation of its lands have a great object and purpose in view1 and are remedial in character and are entitled to a liberal construction — a construction that enables and does not hinder. State ex rel. v. Bates, 235 Mo. 292; Laws 1913, p.. 281, sec. 2; Laws 1913, p. 267, sec. 62; In re Mingo Drainage District, 267 Mo. 278; State ex rel. v. Wilson, 216 Mo. 277. (11) When necessary to effect the legislative intent, remedial statutes will be- construed to include cases within the reason, although outside the letter. 36 Cyc. 1175'; Traudt v. Hagerman, 27 Ind. App. 152; School Dist. v. School Dist.; 120 Iowa, 119; St. Peter v. Middleborough, 2 Y. & J. 196; State v. Canton, 43 Mo. 48.

      Buder & Buder, L. R. Jones and Á. W. Wenger for respondent.
    (1) The judgment of the county court dated May 17, 1909, incorporating the drainage district and approving and confirming the assessments and benefits against the lands, as set forth in the report of the viewers and engineer, was a final judgment. State ex rel. v. Wilson, 216 Mo. 274; State ex rel. v. Redman, 194 S. W. (Mo.) 260. (2) Only one final judgment may be entered in a cause, regardless of the number of parties, or the number of issues involved. This provision of the law is mandatory. Sec. 2097, R. S. 1909; State ex rel. v. Redman, 194 S. W. 260; Besheai's v. Vandalia Banking Assn., 73 Mo. App. 293. (3) The county court is one' of limited jurisdiction, possessing only such, powers as are conferred upon it by statute, and it can exercise its jurisdiction only in the manner prescribed by statute. State ex rel. v. Redman., 194 S. W. 260; St. Louis v. Hollrah, 175 Mo. 79 ; Land Co. v. Quinn, 172 Mo. 563 ; State ex rel. v. Johnson, 148 Mb. App. 306. (4) iG-eneral presumptions indulged to sustain proceedings in superior courts' will not be allowed to aid proceedings of inferior courts. State ex rel. y. Cass County Court, 137 Mo. Appi. 698; State ex inf. v. Woods, 233 Mo.- 357. (5) A judgment against severál parties will not he treated as an entirety and annulled as to all the parties for an error against one. Elliott on Appellate Procedure, secs. 574-5; Wollman v. Loewen, 108 Mo. App. 591; Bremen Bank v. TJmrath, 55 Mo. App. 43; State ex rel. v. Tate, 109 Mo. 265; Stotler v. Railroad, 200 Mo. 149; Benseick v. Cook,- 110- Mo. 183; Freeland v. Williamson, 220 M}o. 229. (6) Where one defendant was not served and final judgment was rendered against the remaining defendant, the final judgment deprived the court of power to afterwards proceed in that suit against the defendant not appearing. Neither can any court hold a case open after judgment for further adjudication on the merits, though it may retain it for administrative purposes and make orders to carry a decree into effect. State ex rel. v. Redman, 194 S. W. 260; Beshears v. Vandalia Bank Assn., 73 Mo. App. 293; Ball v. Peper Cotton Press Co., 141 Mo. App. 26; St. Louis v. Crow, 171 Mo. 272; Henry v. Gibson, 55 Mo. 570; Holborn v. Naughton, 60 Mo." App. 1. c. 1Ó3; State ex rel. v. Muench, 217 Mo. 140. (7) A court, except as authorized by statute, has no authority to disturb its' judgment after the term. Jeude v. Sims, 258 Mo. 39; Curtiss v. Bell, 131 Mo. App. 251; Byers v. Jacobs^ 164 Mo. 141; Carr v. Dawes, 46 Mo. App. 359. (8) Want of jurisdiction of the court as to the subject matter involved cannot be waived in any manner. City of St. Louis v. Glasgow, 254 Mo. 262; Railroad v. Schweitzer, 246 Mo. 122; Drainage District v. Nabor, 256 Mo. 163; Drainage District v. Heine, 256 Mo. 164; Drainage District v. Voltmer, 256 Mo. 152; Dennis v. Baily, 104 Mo. App. 638. (9) The exceptions and the application for change of venue having been withdrawn by consent of court and the parties and “without prejudice,” did not have the effect of entering the appearance of the respondent or of waiving the necessity of a proper notice. Creighton v. Kerr, 87 U. S. 12; State v. Taylor, 51 N. J. L. 307; Sursa: v. Cash, 171 Mo. App. 403 ; Long v. Long, 141 Mo. 370; Taylor v. Slater, 21 R. I. 104.
   BOND, C. J.

I. This is the second appeal in this caso. On the former appeal the question was as to the sufficiency of a notice to the respondent, which by misPasión of the clerk was directed to the Arcadia Realty Company instead of its correct corporate name, the Arcadia Timber Company.

In that case it was ruled that the notice in question was fatally defective and that the order of publication thereof did not bring the respondent into court, and hence it was not liable for the taxes sued for in that case and was not a party to the proceedings therein resulting in the establishment of the drainage district, nor affected by the judgment creating the drainage district. [State to use of Douglas v. Arcadia Timber Co., 178 S. W. 93.]

In the present case some of the purchasers of the bonds of the district instituted a proceeding in the county court where the district had been previously organized, whereupon that court ordered a notice to be given to respondent, designating it by its proper corporate name. This notice was duly published, the respondent appeared and moved to quash the notice, and also appeared specially, subject to its motion to quash, and excepted to the original report of the viewers and engineers when the district was organized. Thereafter, by consent of parties, respondent’s exceptions were withdrawn without prejudice, its motion to quash was overruled. and the county court proceeded to entertain jurisdiction and reaffirmed the report of the viewers and engineers and directed its clerk to reapportion the total costs of the improvements. These orders were made about six years after former orders of the same nature were made when the district was organized, and they included orders of approval and confirmation of those made by the court six years before.

The county court also adjudged, at the time of making its last orders, to-wit, March 6, 1916, that its previous order made March 17, 1909, dividing the assessments against the lands of the district into nineteen installments, should be changed by dividing them into thirteen installments.

For one of these installments, to-wit, $5544.58, the Collector of the Revenue of Dunklin County instituted the present action against defendant. To a petition setting up the foregoing facts, respondent interposed a general demurrer, which was sustained by the trial court, and plaintiff, declining to plead further, duly; appealed to this court.

II. The organization of the. drainage district [upon which the former suit was based] involved, as to all prop-FinaP erty owners therein except respondent, a corn-judgment. píete assessment of the property within the dis-drict and a final judgment. [State ex rel. v Redman, 194 S. W. 260; McQuitty v. Steckdaub, 190 S. W. 591, and case cited; R. S. 1909, secs. 2097, 1971.]

The complete organization' of the district then established took place about six years before the institution of the present action. All the power of the county court to deal with that judgment or set it aside, was lost, in the absence of statutory authority, after the lapse of the term when the judgment was rendered. [Jeude v. Sims, 258 Mo. l. c. 39.] It could not, therefore, set aside the final judgment organizing the district under a' proceeding instituted six years later and reopen and reorganize and re-establish the district.

It necessarily follows that the proceeding- instituted in the county court for that purpose was inapt and inefficacious. Ait any time 'before the final consummation of the proceeding -which culminated in the original establishment of the drainage district, it would have been entirely within the province of the county court, as the tribunal clothed with, authority under the statutes then in force, to have taken proper steps to notify the respondent and make it a party to that original proceeding. It was, however, out of the power of that tribunal^ under the facts stated in the petition in this cause, to have brought the respondent in as a party to a judicial proceeding which had ended in a final judgment at the term of court which had lapsed before the proceeding was instituted to make it a party.

There is no doubt of the correctness of the rule invoked by the learned counsel for appellant that the construction and interpretation of the statutes -relating to the organization of drainage districts, should be broad and liberal in order to carry out their beneficent purposes. [In re Big Lake District v. Rolwing, 269 Mo. 161.] But that principle does not warrant us in assuming the grant of powers or authority to a county court specially entrusted with the organization of these districts, which are withheld by the statute and which would be violative of the express provisions of the civil code. In all these proceedings the county court was exercising a special and limited authority measured by the terms of the statute. It was not as to these a court of general jurisdiction. Hence, it was necessary that its jurisdiction and power to render judgment should be shown somewhere in the record and proceedings before it; otherwise they would be open to collateral attack. [State ex rel. v. Redman, 194 S. W. l. c. 263.]

In reaching this conclusion we do not wish to be understood as ruling that respondent should go scot-free of a proper return for the benefits received by the inclusion of • its property in the drainage district, or that there is no other proceeding by which it can be held to a just liability for such benefits; but we do hold t-bat the proceeding instituted in the county court by the purchasers of the bonds and predicated on the theory of the right of that court to set aside a former final judgment [to which the defendant was not a party] and include it within another judgment purporting in all other respects to be only a readjudication of the former judgment, was not within the purview or scope of the statute relating to the organization of drainage districts or the civil code of Missouri.

We see no escape from the conclusion that the judgment of the trial court sustaining the demurrer to the petition filed in this "case, was correct. It is, therefore, affirmed.

It is so ordered.

All concur except Blair, J., who dissents.