text:
    MOLLIE LAPPIN and GEORGE LAPPIN, Appellants, v. E. C. NICHOLS and NICHOLS & SHEPPARD COMPANY.
    Division Two,
    January 4, 1915.
    1. PLEADING: Deed of Trust: Foreclosure Sale: Petition to Redeem: Nude Agreement. Where the court set aside a deed of trust, adjudged the mortgagors to be indebted to the beneficiary, gave them until a certain time to pay the debt, and adjudged that in case of default special execution should issue, and default having occurred executioh issued and the land was sold to the beneficiary, and the mortgagors bring suit to set aside the sale under the decree and ash to be permitted to redeem, an allegation that the beneficiary promised and agreed that the mortgagors would be allowed to redeem avers only a mere wtidum pactum, without any consideration, and states no cause of action.
    2. -: -: -: -: Seizure of Crops: Motion to Make Definite. An allegation that, after the court in December had given the mortgagors until the next June to redeem, the beneficiary named in the deed of trust, in violation of his promise that the mortgagors would be allowed to redeem, seized the crops planted in the spring before the date of redemption and a large portion of the products of said land, thereby decreasing the mortgagors’ ability to redeem, without any averment of what the products were, their value, their Quality or what parts were seized, states nothing of sufficient definiteness to constitute a cause of action to redeem. In such case it is not necessary for defendant to move to have the petition made more definite, since the averment states merely a conclusion of law.
    3. -: -: -: -: Agreement to Extend Time. An allegation, in a petition to set aside a sale under special execution in pursuance to a decree, that the time given thereby for the payment of the debt due defendant was extended and that defendant agreed to such extension, with no averment as to the length of time of such extension, nor as to whether or not the sale was made under execution prior to the expiration of such extension, states no cause of action for a redemption of the property from the effects of the sale.
    Appeal from G-reene Circuit Court. — How Guy D. Kirby, Judge.
    Aestrmed.

      Wright Bros, for appellants.
    (1) Appellants claim tlie right to redeem, and an accounting, and the payment of the $1000' on the theory that respondents’ acts were unfair, fraudulent and over-reaching. (2) Respondents agreed with appellants that they might redeem and that they might have time and opportunity to raise the money to satisfy the judgment of foreclosure. The acts of respondents of which complaint is made were designed to prevent appellants from raising the money to redeem and were fraudulent, unfair and over-reaching. (3) Respondents acted in bad faith in insisting upon the foreclosure by the sheriff when they had agreed, or led appellant to believe, the sale under the decree would not be had. Sheridan v. Nation, 159 Mo. 40. (4) In Missouri a right to redemption exists where the sale is made under a deed of trust in the nature of a mortgage, when the cestui qui trust is the purchaser," but party must give bond or notice. No special equities need be shown. E. S. 1909, sec. 28291; Hughes v. Winkleman, 243 Mo. 91; Potter v. Schaffer, 209 Mo. 597. (5) The right of redemption is purely a creature of statute. E. S. 1909, sec. 2829; Hughes v. Winkleman, 243 Mo. 91. (6) Eight of redemption under the statute is merely cumulative. Potter v. Schaffer, 209 Mo. 597. (7) Outside the statute a court of equity will grant relief against any fraudulent advantage. Potter v. Schaffer, 209 Mo. 598; Vanmeter v. D'arrah, 115 Mo. 158. (8) Where there is fraud, unfairness or overreaching, then appellant has right to redeem even though there has been judgment of foreclosure. White v. Smith, 174 Mo. 186. The proper jurisdiction of courts of equity is to take every one’s act, according to conscience, and not to suffer undue advantage to be taken of the strict forms of law, or of positive rules. 1'Story’s Eq. Jurisprudence, sec. 331.

      C. W. Hamlin for respondents.
    There can certainly be no doubt about the judgment which was rendered by the court between these same parties on the 19th day of April, 1902, being a final judgment. It was not appealed from and a judgment in equity, as well as in law, is final if not appealed from. Eodney v. Gibbs, 184 Mo. 1; Howland v. Eailroad, 134 Mo. 474; State v. Wear, 145 Mo. 162. Plaintiffs’ petition shows that in the suit in which judgment was rendered, on the 19th day of April, 1902, the parties, cause of action and relief demanded were, in fact, identical with the parties, cause of action and relief demanded in this case. Therefore these appellants will not be permitted to multiply actions. Parks., v. Eichardson, 35 Mo. App. 192; Tool Co. v. Spring Co., 146 Mo. App. 29; Givens v. Thompson, 110 Mo. 432; Donnell v. Wright, 147 Mo. 639; Nave v. Adams, 107 Mo. 414.
   ROY, C.

This is a proceeding to set aside a foreclosure sale of land under a deed of trust, and to redeem. A demurrer to the petition was sustained. The plaintiffs declined to further plead and their hill was dismissed.

The suit was begun April 22, 1910. The amended petition stated that the plaintiff, Mollie Lappin, is the owner of three hundred and twenty acres of land therein described; that on March 17, 1900, plaintiffs executed deeds of trust on the land as follows: To R. "W. Sprague for $5760; to Jerome Dickerson for $576; to A. B. Crawford for $1000; that the latter deed of trust was procured by Crawford by fraud and duress. That on July 14, 1900, plaintiffs executed a deed of trust on the land to the defendant Nichols & Sheppard Company for $2175-; that the defendants fraudulently, and for the purpose of cheating plaintiffs out of said land, procured it to be sold under the last-mentioned deed of trust on March 2.3’, 1901, at the unusual hour of nine in the forenoon, in the absence of plaintiffs; and that the defendant E. C. Nichols became the purchaser at that sale at the grossly inadequate price of $100, and received the trustee’s deed therefor.

That on January 31, 1901, they instituted suit against said Crawford to set aside the deed of trust held by him, resulting in a decree setting it aside, which was affirmed by this court June 8, 1909 (Lap-pin v. Crawford, 221 Mo. 380); that the defendants employed counsel who helped prosecute said case, and that defendants agreed that plaintiffs should be allowed to redeem said land.

That on December 12, 1901, the plaintiffs instituted suit against these defendants to set aside said sale of the land and to redeem; that the court set aside the sale and adjudged the sum of $2004.11 to the defendants as the balance due on said debt, gave plaintiffs until June 7, 1902, to redeem by the payment of the amount adjudged to be due, and adjudged that in default of such payment a special execution should issue for the debt; that during the existence of said deed of trust the plaintiffs were required by defendants to surrender to the defendants a large portion of the products of said farm; that in the spring of 1902 plaintiffs planted large crops on the land under an agreement with defendants that plaintiffs should use said crops in the payment of said indebtedness.

That during the year 1901 defendants took from plaintiffs all the crops raised during that year for the fraudulent purpose of preventing the plaintiffs from redeeming said land.

That on the-day of--, 1902, the court extended the time for redeeming the land, in order that the plaintiffs might mature the crops of that year, and that the defendants understood the purpose of such extension and that the plaintiffs should have such further extension to enable them to raise the means to redeem the land.

That the total indebtedness against the land on April 19, 1902, including the Crawford deed of trust, was $9340.11, and that the land was then worth $14,000, and is now worth $25,000. That defendants caused the land to be sold on August 12,1902, under special execution issued on said decree of foreclosure, and defendant E. C. Nichols became the purchaser and received the sheriff’s deed therefor, and that thereupon defendants took possession of the land and have had such possession ever since, receiving the rents and profits.

That defendants, knowing the Crawford deed of trust was void and that plaintiffs could not raise the money to redeem said land, wrongfully proceeded to foreclose the land as aforesaid; and that defendants seized a large portion of the crops raised on said farm in 1902, and thereby increased plaintiff’s disability to pay said indebtedness.

There is a prayer for judgment for the $1000, the amount of the Crawford note, and the interest thereon, and for a decree that they be allowed to redeem, and for an accounting for the rents and profits.

The demurrer was based on the grounds that the petition did not state a cause of action, that the same cause of action, as shown by the petition, had been adjudicated in the previous suit, and that from the facts alleged in the petition the plaintiffs were guilty of laches.

I. The petition in this case is very long. We considered it our duty to condense it as much as possible consistent with an understanding of its meaning. As we construe it, the relief sought is, not to set aside the former decree of foreclosure, but to simply set aside the sale under .that decree, and to be permitted to redeem. It seeks also the recovery of $1000', the amount of the Crawford debt., with the interest thereon.

II. There are no facts stated in the petition justifying a recovery of 'the $1000' item. All parties herein were interested in getting rid of that deed of trust, and all united in prosecuting the suit to annul it. But there are no facts stated in the petition which would justify a judgment in favor of the plaintiffs for that item.

III. There are no facts stated in the petition justifying setting aside the sale made under the special execution. There is an allegation that defendants promised and agreed that plaintiffs should be allowed to redeem the land. That was a mere nudum pactum, and no consideration is alleged. Again, it is alleged that defendants seized a large portion of the products of said lands, thereby increasing plaintiffs ’ disability to redeem the land. There is no averment as to what the products were, their value, or what part the defendants seized. The defendants should be informed by the petition as to the value of such products thus seized in order to .determine whether their seizure materially decreased the ability of plaintiffs to pay. Instead of the fact as to such value, the averment is that of the mere conclusion that the plaintiffs were rendered less able to pay. The situation is strikingly similar to that in Mallinckrodt Chemical Works v. Nemnich, 169 Mo. 388, where it was held that in such a case it is not necessary for the defendants to move to have the petition made more definite, but that a primary duty rests on the party drawing the pleading to express his meaning clearly. [See also Vogeler v. Punch, 205 Mo. 558.] There is an averment in the petition that the time originally given by the decree for the payment of the amount due defendants was extended, and that the defendants agreed to such extension. There is no allegation as to the length of the time of such extension, nor as to whether the sale was made under execution prior to the expiration of such extension.

The judgment is affirmed.

Williams, G., concurs.

PER CURIAM.

The foregoing opinion of Roy, 0., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: ROT, O. PER CURIAM.

license: Public Domain

text:
    THE STATE v. HARRY LACKER et al.; SAM WEISMAN, Appellant.
    Division Two,
    January 4, 1915.
    1. BAIL BOND: Court of Criminal Correction. The court of criminal correction of the city of St. Louis has power, where an information has been filed charging a felony, to bind defendant, by proper bond, to appear in the circuit court to answer the charge.

      2. -: No Service of Principal. The fact that the principal in the hail bond was not served with the scire facias, does not invalidate the proceedings resulting in a judgment against the surety.
    3. -: -: Dismissal as to Principal. The failure to dismiss as to the principal in the bail bond, who was not served with the scire facias, before rendering judgment against the surety, does not invalidate the judgment.
    4. -: Appellate Jurisdiction. The Supreme Court has jurisdiction of the appeal from a judgment by scire facias on a recognizance given in a felony case, although the penalty of the bond was only $1600.
    Appeal from St. Louis City Circuit Court. — Hon. Kent K. Koerner, Judge.
    Affirmed.

      Thomas J. Rowe, Jr., for appellant.

      John T. RarJcer, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
    (1) The recognizance was in writing and taken by the judge of the court as provided by statutes. The statutes were complied with in every particular and no error appeared. Sees. 5048, 5134, R. S. .1909; State ■ v. Zwiffle, 22 Mo. 467; State v. Randolph, 22 Mo. 474; State v. Epstein, 186 Mo. 100; State v. Eyerman, 172 Mo. 305. The signatures to the recognizances are sufficient and the recognizance was properly taken. State v. Wilcox, 59 Mo. 176; State v. Stone, 106 Mo. 1; State v. Caldwell, 124 Mo. 509. (2) The judgment of forfeiture is in accord with the recognizance and complies with the statutes. Sec. 5134, R. S. 1909. (3) The scire facias sufficiently set out the charge, the entry of default and all other facts necessary for the information of the surety, and the form has been approved by decisions of this court. Secs. 5019, 5134, R. S. 1909; State v. Abel, 170 Mo. 59; State v. Epstein, 186 Mo. 93.
   ROT, O.

On November 18', 1913, Lacker as principal and Weisman as Ms surety in the court of criminal correction of the city of St. Louis gave bond in the sum of $1500 to secure Ms appearance in the circuit court to answer the charge of felony in stealing from the person of Charles W. LaGrave. On November 22, 1913, an information was filed in the circuit court charging Lacker with having stolen from the. person of said LaGrave a poeketbook worth ten cents and twenty-eight dollars in money. The case was then continued to the December term. On January 5, 1914, the defendant Lacker failed to appear and made default, the bond was declared forfeited and there was an order that a scire facias and an alias capias issue. On January 6, 1914, the scire facias was issued and it was served on defendant Weisman on January 7,1914. There was no return as to defendant Lacker either on the scire facias or on the alias capias which was issued.

On February 26, 1914, the proceeding on the scire facias was continued to the next term. The writ of scire facias was regular in all respects, containing the necessary recitals.

On May 7, 1914, the following proceedings were had in the ease:

“Now at this time the defendant, Sam Weisman, not having sufficient reason shown why the plaintiff, the State of Missouri, should not recover her debt and costs according to the term of the bond heretofore entered into in said cause, it is therefore considered and adjudged by the court that the plaintiff, the State of Missouri, have and recover from the defendant, Sam Weisman, her debt of fifteen hundred dollars, together with the costs herein accrued, and have execution for the same.”

The defendant Weisman appealed. There was no dismissal as to Lacker.

I. Appellant lias filed no brief in this case. "We have examined the record carefully. The information charges a felony; the declaration of forfeiture is regular. We discover no irregularity in the bond, nor in the declaration of the forfeiture of the bond. The court of criminal correction had power to bind defendant to appear in the circuit court to answer a charge of felony. [Laws 1869, p. 198, sec. 21; R. S. 1899, sec. 21, p. 2545.]

II. The fact that Lacker was not served with the scire facias does not invalidate the proceedings. The judgment was properly rendered against the surety who was served. [State v. Woerner, 33 Mo. 216.]

III. The failure to dismiss as to Lacker before rendering judgment against Weisman does not invalidate that judgment. [State v. Abel, 170 Mo. 59.] The recognizance having been given in a felony case, we have jurisdiction of this appeal. [State v. Epstein, 186 Mo. 89; State v. Grant, 252 Mo. l. c. 609.]

The judgment is affirmed.

Williams, G., concurs.

PER CURIAM.

The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All of the judges concur.


author: WILLIAMS, C. PER CURIAM.

text:
    THE STATE v. JOSEPH HAMILTON, Appellant.
    Division Two,
    January 4, 1915.
    1. EVIDENCE: No Proper Objection: Appeal. The objection that testimony is incompetent, irrelevant and immaterial raises no point for appellate review.
    -: Objection Sustained: Appeal. The defendant convicted of defiling a female under eighteen years of age confided to his care and protection has no point for appellate review where his objection to testimony concerning the prior guardianship of the prosecutrix by an orphan’s home was sustained 'on the ground that the records of the probate court were the best evidence.
    3. -: Register of Births: Orphan’s Home: Showing Age of Prosecutrix. Under Sec. 6297, R. S. 1909, providing that when, by the ordinance or custom of any religious society in the State, a register is required to be kept of births, such register shall be admitted in evidence, the record of the Missouri Baptist Orphan’s Home was competent, in a trial for defiling a female under eighteen years of age, to show the date of the birth of the prosecutrix, who had been an inmate of the home.
    4. DEFILING FEMALE: Several Acts: Election: Waiver. A defendant on trial for defiling a female under eighteen years of age confided to his care and protection, has the privilege, when the evidence tends to show several acts of intercourse within the three years next preceding the filing of the information, of requiring the State to elect upon which act it will proceed, but where he does not exercise his privilege, and the State does not elect, and he is found guilty, he will be held to have waived the privilege.
    5. JUDGMENT: “You” for “Defendant.” A judgment and sentence which, after naming the defendant and proceeding in regular form, directs that “you” be imprisoned, etc., leaves no room, when the full context is considered, for doubt as to the identity of the person to be punished, and the cause will not be remanded for a new judgment and sentence.
    6. -: Uncertainty as to Place of Imprisonment: Corrected by Supreme Court. Where a recital that the defendant “stand committed to the custody of the sheriff until he be legally discharged by due process of law,” renders a judgment uncertain as to the place of imprisonment, the Supreme Court, by virtue of Sec. 5316, R. S. 1909, will sentence the defendant to the proper place of imprisonment.
    Appeal from Clark Circuit Court. — Hon. N. M. Pettingill, Judge.
    Aeeirmed.

      C. T. Llewellyn and B. L. Gridley fpr appellant.

      John T. Barker, Attorney-G-eneral, and Lee B. Ewing, Assistant Attorney-G'eneral, for tbe State.
   WILLIAMS, C.

Upon an information charging him with the crime, under section 4A79, Revised Statutes 1909, of defiling a female under the age of eighteen years, who had been confided to his care and protection, defendant was tried, in the circuit court of Clark county, Missouri, found guilty, and his punishment assessed at five years in the penitentiary. Defendant duly perfected an appeal.

The evidence on the part of the State tends to establish the following facts: Prior to August, 1910, the prosecutrix was an inmate of the Missouri Baptist Orphan’s Home, situated near St. Louis, Missouri. On' said date said Missouri Baptist Orphan’s Home, by its deed, apprenticed prosecutrix to the care and custody of the defendant. Prosecutrix testified that she was seventeen years old on the 5th day of December, 1912. She continued to live at the home of defendant from August, 1910, until the latter part of March, 1913. She testified that a part of her duties at defendant’s "home was to assist in milking the cows in the barn; that defendant first made indecent proposals to her in the summer of 1911 and that in September, 1911, while at the barn, where.she had gone to do the milking, she first submitted to him, and at that time defendant had sexual intercourse with her; that she and defendant engaged in other acts of sexual intercourse (the frequency of which is not given) between that time and January, 1913. On January 7, 1913, she gave birth to a child. Defendant had not kept company with any man during the time she lived at defendant’s home. Defendant told prosecutrix that if any one should ask her about her condition and who was the cause of it, she should tell them that a “stranger” was responsible for it. On the night of the birth of the child, defendant called at a neighbor’s home and requested the neighbor’s wife to accompany him home to attend prosecutrix in her sickness. At the neighbor’s home, defendant told his neighbor that the prosecutrix was giving birth to a child and that it was a “bad case” and stated that “he expected it would be laid onto him;” to which the neighbor replied,' “More than likely it will.” The neighbor’s wife accompanied defendant to his home and on the road defendant asked the neighbor’s wife what he should do in a case like that. She replied that he should “hunt the owner.” She asked him if the girl had been keeping company with anybody and he replied that he did not know of any company that she had kept and thought she was too young to keep company. He further stated, “In all probability the gentleman who did that work threatened her life and she won’t tell.” A day or so after the birth of the child, defendant sent for two or three neighbor women to come to his house. When they reached his home, he requested them to go, one at a time, into the room where prosecutrix was in bed and get a statement from her and to write down what she said and sign the statement. He further stated that he desired that they disclose the information thus obtained to the neighborhood. The ladies refused to take the statement of the girl.

After the birth of the child, prosecutrix remained at the home of defendant until March 27, 1913, and during this time stated that a stranger was the cause of her downfall. After she left defendant’s home she changed her statement, and, on April 23, 1913, she, in company with others, called at the office of the prosecuting attorney and this prosecution was begun. She stated that she left defendant’s home because defendant attempted to induce her to again submit to acts of sexual intercourse.

The only testimony offered on behalf of the defendant was his own testimony in which he denied that he had ever had sexual intercourse with the girl.

I.. It is contended that the court erred in admitting, over the objection and exception of defendant, the following evidence: (a) the testimony of prosecutrix as to the several acts of intercourse; (b) the testimony of Mrs. Eilers with reference to the guardianship of prosecutrix; (c) the entry in the register book kept by the Missouri Baptist Orphan’s Home, stating, in substance, that prosecutrix was born December 5, 1895. As to point (a) it is sufficient to say that the only objection made by appellant to the introduction of that testimony was that it was “incompetent, irrelevant and immaterial.” It is well settled that such an objection raises no point for appellate review. [State v. Crone, 209 Mo. 316, l. c. 330; State v. Castle-ton, 255 Mo. 201, l. c. 208, and cases therein cited.]

Concerning point (b) the record shows that Mrs. Eilers, the President of the Missouri Baptist Orphan’s Home, was asked whether or not said organization was, on July 8, 1907, in the probate court of St. Louis, appointed the guardian of prosecutrix. Appellant objected on the ground that the court records were the best evidence of that fact and the court sustained the objection. This presents no point for review.

Concerning point (c), the president of the organization testified that the Missouri Baptist Orphan’s Home was a religious society and that it was required to keep, and that it was its custom to keep, a record of every child received, including a record of the date of the birth of the child received; that the entry as to the date of the birth of prosecutrix was made by the matron of the home in the book kept for that purpose. This book was produced and identified at the trial. Section 6297, Revised Statutes 1909, provides that “when, by the ordinance or custom of any religious society or congregation in this State, a register is required to be kept of . . . birth . . . such register shall be admitted as evidence.” In objecting to the introduction of this evidence, appellant did not assign any reason that would, in the light of said statute, render said evidence inadmissible. In support of his contention that the court erred in admitting the evidence the following cases are cited: Childress v. Cutter, 16 Mo. 24, and Morrissey v. Wiggins Ferry Co., 47 Mo. 521. But those cases furnish no aid to appellant’s contention here. The point involved in those eases had to do with the admissibility of certain church registers kept in other States, in the first case a register kept in Louisiana and in the second case a register kept in New York. It was held that the above quoted Missouri statute was applicable only to such registers as were kept- by religious societies in this State. It was further held that such registers were not admissible in evidence except when made so by statutory enactment and since no such showing was made with reference to the law of New York, in the one instance, or the law of Louisiana, in the other, the contents of said registers were not admissible.

II. Instruction number 1 authorized the jury to find defendant guilty if they should find that he had defiled prosecutrix “at any time within three years prior to April 23, 1913” (the date of the fifing of the information). Appellant contends that, since the evidence tended to establish several acts of sexual intercourse, the above instruction was erroneous in not confining the consideration of the jury to one act.

Since it has been repeatedly held under this statute that unchaste character upon the part of the ward would not constitute a defense (State v. Nibarger, 255 Mo. 289), it is no doubt true that each act of sexual intercourse constituted a separate offense under the statute.

The general rule is that where time is not of the essence of the offense and the evidence undertakes to establish one offense only, it is not improper to instruct the jury that they may convict if they find that defendant committed the prohibited act at any time within the period of limitations. On the other hand, it has been held that where the evidence .tends to establish more than one offense, the consideration of the jury should be limited to the evidence concerning a single particular offense. This on the theory that defendant is entitled to have the unanimous verdict of the jurv with reference to one specific offense, whereas if the consideration of the jury is not limited to a particular act a part of the jury might believe him guilty of one of the offenses but not guilty of another, and the remainder of the jury might believe him not guilty of that one act but guilty of another act. The most important case cited and relied upon by appellant in support of the above proposition, and in support of his present contention that the case should be reversed because of said instruction, is the case of State v. Pruitt, 202 Mo. 49. While, at first glance, the Pruitt case appears to be in point, yet, upon a more careful examination thereof, it will be found to embrace matters making it clearly distinguishable from the case at bar. The point of di stinction is that in the Pruitt case defendant filed a motion to require the State to elect upon which act it would rely for conviction, while in the case at bar no such motion was interposed. In the Pruitt case, the court said: “In cases of this character, where more than one act of intercourse has been proven to have occurred within three years next preceding the time of the filing of the information or the presentment of the indictment, it is the duty of the court, at the close of the State’s case, on motion of defendant for that purpose, to require the State to elect upon which act it will rely for conviction,” citing State v. Palmberg, 199 Mo. 233; and further, “. . . the court should have required the State to elect, and have by its instructions restricted the jury in its consideration of the case to one of such offenses in accordance with such election.” (Italics ours).

It must be borne in mind that the State has the right of election. It is the defendant’s privilege in a proper case to compel the exercise of such right of election by interposing a motion to that end. If the court overrules the motion an exception may be saved and the action of the court reviewed upon appeal. If the motion is sustained and the election made, the court should by its instructions limit the jury’s consideration to the elected offense. However, in a case presenting a proper occasion for an election, as to which specific offense, among the many disclosed by the evidence, shall be submitted, but where, as here, defendant fails to exercise his privilege of demanding such an election, is the court to be convicted of error because it fails to limit the jury’s consideration to that specific offense which the State may have selected if the defendant had set in motion the machinery which would have reduced the submitted case to one offense? We think not. The court should not be convicted of error in submitting the case in the condition in which the defendant was content to leave it. Under the present circumstances, if defendant entertained the fear that the unrestricted submission of the case to the jury would likely result in a verdict having its foundation in part upon one offense and in part upon another (a fear which, under the evidence in the present -case, we are strongly inclined to believe would be moré fanciful than real), he should have moved, in conformity with the proper practice, to require an election and thereby reduce the case to a specific offense so that the court could have submitted that offense to the jury. Failing therefore to pursue the proper practice by exercising this privilege, he must be considered as having waived the same and is in no position to complain of the manner in which that phase of the case was submitted to the jury.

III. It is next contended that the judgment and sentence of the court is imperfect, defectAe and insufficient. The judgment of the court was as follows:

" State of Missouri, Plaintiff, v. Joseph Hamilton, Defendant.
“Now at this day comes the plaintiff by J. H. Talbott, Prosecuting.Attorney, and the defendant, Joseph Hamilton, in his own proper person and by his attorneys O. T. Llewellyn and Bert L. Gridley, and the defendant being asked by the court if he had anything to say why sentence should not be pronounced and judgment rendered against him according to law, upon the verdict of the jury in this behalf, stood mute.
“Whereupon it is considered and adjudged by court that you be imprisoned in the penitentiary of the State at hard labor for a term of five (5) years, and that he pay the costs of this prosecution taxed ............Dollars, and that he stand committed to the custody of the sheriff until he be legally discharged by due process of law.”

It is. insisted that the-word “you” renders the judgment uncertain and that grave doubt exists as to which person is meant to be imprisoned. We are unable to- agree with this contention. While it is true that the judgment is grammatically incorrect, and-better English would have been used had the word “he,” or still better had the words “defendant Joseph Hamilton” been used in lieu of the word “you,” yet the word “you” when read in the light of the context of the entire judgment leaves no room for misunderstanding and doubt as to the identity of the person who is to be imprisoned and is not therefore a defect of sufficient importance to justify the remanding of the cause for a new judgment and sentence.

It is, however, further insisted that the last clause of the judgment, which states that defendant “stand committed to the custody of the sheriff until he be legally discharged by due process of law,” renders the judgment uncertain as to place of imprisonment. That under the judgment as written “the sentence might be one of imprisonment in the penitentiary or by imprisonment in the custody of the sheriff.” While it was undoubtedly the intention to so word the sentence as that defendant should remain in the penitentiary until he be legally discharged by due process of law, yet the language used, when literally construed, does state that he shall remain in the custody of the sheriff until discharged. In order to remove any ambiguity that might exist as to the place of imprisonment, we will, by performing the duty prescribed by section 5316, Revised Statutes 1909, proceed to sentence defendant to the proper place of imprisonment. [State v. James, 194 Mo. 268, l. c. 280.] It is therefore ordered and adjudged by the court that the defendant Joseph Hamilton be confined in the penitentiary of this State for a term of five (5) years, and that the sheriff of Clark county, Missouri, or other officer having such prisoner legally in charge, shall, with all convenient speed, convey said defendant to the State penitentiary of the State of Missouri and deliver him to the warden thereof, there to be imprisoned for the period of five years.'

Boy, C., concurs.

PER CURIAM.

The foregoing opinion of Williams, C., is adopted as the opinion of the court.

All the judges concur.


author: ROY, C. PER CURIAM.

text:
    THE STATE v. PHILLIP A. SALTS, Appellant.
    Division Two,
    January 4, 1915.
    1. INFORMATION: Prosecuting Attorney’s Signature. Where the body of the information and the affidavit' state the official character of the prosecuting attorney, a failure to write the words "prosecuting attorney” after his signature to both the information and affidavit does not invalidate it.
    2. CONTINUANCE: Abuse of Discretion: Thingsto Be Considered. An application for a continuance is addressed to the sound discretion of the court, and its denial will be upheld except in case of a clear abuse of that discretion; and the rigid rule prevails that such an application is to receive no favorable intendments, nor is it to be forgotten- that defendant had been granted a continuance at a former term of court, nor is the fact to be overlooked that at the trial after the application on account of absent witnesses was overruled defendant’s counsel made no attempt by cross-examination of the State’s witnesses to show that the absent witnesses had any knowledge of the facts ascribed to them in the application.
    3. -: -: Carnal Knowledge: Previous Sexual Relations. In the prosecution of a defendant charged with carnal knowledge of a female between the ages of fourteen and eighteen years, of previous chaste character, an application for a continuance which states that a certain absent witness would testify that prosecutrix had had sexual intercourse with men prior to the date of the alleged offense should give the names of such men or the reason for omitting them.
    4. -:--: --:--: Near-by Absent Witness. Although the application for a continuance says that a certain named man prior to the date of the offense had had sexual intercourse with prosecutrix, a female alleged in the information charging carnal knowledge to be of previous chaste character, and although the evidence at the trial shows he was the only man who had kept company with her, yet if the application also states that said man resided at or near a town just across the county line, and two days elapsed after the application was overruled before the trial began, and when the case was called for trial both sides answered ready and defendant made no further objections to proceeding with the trial after the application was overruled, and made no showing of any diligence or effort during those two days to procure the attendance of the witness, it will not be held on appeal that the court abused its discretion in overruling tbe application based on the absence of said witness.
    5. CARNAL KNOWLEDGE: Evidence: Letters. Letters to the prosecutrix written, after the date of the alleged offense, by defendant, charged with carnal knowledge of her, and relating to the offense charged, are admissible in evidence, though addressed to her in another name.
    6. --: -: Affidavit of Prosecutrix’s Father. An affidavit of prosecutrix’s father, who did not testify, made after the date of the alleged offense of carnal knowledge, in connection with a charge of incorrigibility, in which he stated her age to be older than her mother testified and that she was a person of immoral character, whose associates were immoral, bad and vicious, is not admissible for any purpose.
    Appeal from Phelps Circuit Court. — Hon. L. B. Woodsidé, Judge.
    Affirmed.

      J. J. Crites and F. H. Faris for appellant.
    (1) The information is signed “Corrie L. Arthur” with no official designation as prosecuting attorney. The verification thereto does not cure it; the affiant does not make' oath, that he, the signer thereof, is prosecuting attorney. The information therefore was not “signed by the prosecuting attorney” as is required by statute, hut was void and should have been quashed or the judgment thereunder arrested. R. S. 1909, sec. 5057; R. S. 1909, sec. 5093; State v. Bruce, 77 Mo. 193; State v. Wright, 161 Mo. App. 602. (2) Defendant’s application for a continuance was erroneously overruled. It complied in all things with the requirements of Sec. 5204, R. S. 1909. State v. Dewitt, 152 Mo. 76; State v. Newsum, 129 Mo. 154; State v. Klinger, 43 Mo. 127; McKay v. State, 12 Mo. 492. The same diligence is shown in the case at bar as was shown in: State v. Newsum, 129 Mo. 154; State v. Maddox, 117 Mo. 667; State v. Anderson, 96 Mo. 241; State v. Walker, 69 Mo. 274; State v. Wood, 68 Mo. 444; State v. Klinger, 43 Mo. 127. (3) The court was in error in permitting the State, over the objections and exceptions of the defendant, to read to the jury the letters, purported to have been written by the defendant to the prosecuting witness. The letters could only be introduced as being in the nature of confessions or admissions on the part of the defendant, or, that the crime charged being what is termed a “sexual crime,” the conduct and relation of the parties after, as well as before the alleged seduction, may be shown. “A confession or admission by a defendant must relate specifically to the matter charged in the indictment.” Underhill’s Crim. Ev., sec. 290, p. 350; Weaver v. State, 142 Ala. 33; State v. Bennett, 137 Iowa, 427; 35 Cyc. 1355. In neither of the letters introduced is there anything that relates specifically to the seduction of the prosecuting witness, the identical matter charged in the information. (4) The court was in error in excluding the affidavit made by the father of the prosecutrix and filed before Esquire Perry before the arrest of the defendant. This affidavit tended to show the reputation of the prosecutrix, and should have gone to the jury, along with all the other evidence in the case. (5) The evidence in support of the chastity of the prosecuting witness fell far short of the legal requirement. State v. Brandenburg, 118 Mo. 181; State v. Grate, 68 Mo. 22; State v. Brooks, 92 Mo. 608.

      John T. Barker, Attorney-General, and Lee B. Ewing, Assistant Attorney-General, for the State.
    (1) The offense of carnal knowledge is properly charged in the information. Sec. 4472, R. S. 1909; State v. Hall, 164 Mo. 528; State v. Stanley, 232 Mo. 23; State v. Vinson, 171 Mo. 576. Defendant’s motion to quash information was properly overruled. The information states that “Corrie L. Arthur, prosecuting attorney . . . upon .the affidavit of Katie Marks herewith filed; informs the court,” etc., hut no affidavit was filed with sainé. However, the information was duly verified by the prosecuting attorney himself. This was sufficient. State v. Clark, 158 Mo. App. 489; State v. Nave, 185 Mo. 125. (2) The evidence was ample to support the verdict and judgment. State v. Day, 188 Mo. 359. (3) The court did not err in admitting testimony of handwriting experts regarding letters claimed to have been written by defendant to prosecutrix. The letters in question contained very strong evidence of the intimate relations existing between prosecutrix and defendant. Prosecutrix had testified that she and defendant had agreed that she should go under the name of “Katie Conlin.” The letters were addressed to that name. She testified that they were in defendant’s handwriting. The court then admitted them in evidence, to which defendant objected. Later the handwriting experts testified they were in defendant’s handwriting. (4) The court did not err in excluding the affidavit made by prosecutrix’s father. He did not testify, and the affidavit was not admissible for any purpose. (5) The court did not err in overruling defendant’s application for continuance. State v. Cain, 247 Mo. 700; State v. DeYorss, 221 Mo. 469; State v. Sassman, 214 Mo. 695; State v. Crane, 202 Mo. 54; State v. Lynn, 169 Mo. 664; State v. Whitten, 68 Mo. 91; State v. Williams, 170 Mo. 204; State v. Cochran, 147 Mo. 405; State v. Dyer, 139 Mo. 199.
   ROY, C.

Defendant was by a jury convicted of carnally knowing Katie Marks who was between the ages of fourteen and eighteen years. His punishment was assessed at a fine of $300 and six months in the county jail.

The information and the affidavit attached, omitting formal parts, are as follows:

Corrie L. Arthur, Prosecuting Attorney, within and for the county of Phelps and State, of Missouri, upon the affidavit of Katie Marks, herewith filed, now here informs the court that on or about the-day of April, 1913, at and in the county of Phelps, and the State of Missouri, one Phillip A. Salts, a male person over the age of sixteen years, late, of the county of Phelps, did then and there unlawfully and feloniously have carnal knowledge of one Katie Marks, an unmarried female of previously chaste character, between the ages of fourteen and eighteen years of age; against the peace and dignity of the State. Corrie L. Arthur.
Corrie L. Arthur, Prosecuting Attorney, as aforesaid, first being duly sworn upon his oath says that the facts contained in the above and foregoing information are true, according to his best knowledge, information and belief.
Corrie L. Arthur.
Sworn to and subscribed before me this 27 day of August, 1913.
(Seal) Wax R. Ellis, Circuit Clerk.

Defendant moved to quash the information for the following reasons:

“Because the information shows upon its face that the same is not filed, upon the official oath of the prosecuting attorney of Phelps county or any other officer or body authorized to prefer and make such information.
“Because the averments of said information are insufficient in law to constitute any offense against the laws of the State of Missouri.”

At the September term, 1913, the cause was continued on the application of defendant in order to give the defendant time to get public records in the States of Kansas and Nebraska, for the purpose of proving that Katie Marks was over eighteen years of age at the time of the alleged offense.

At the December term, on December 8, the defendant again made application for a continuance on account of the absence of certain witnesses who would testify as follows; Wm. Smith and John Pope would testify to acts of sexual intercourse between them and prosecutrix; Wm. Kilgore, Jr., would testify that prosecutrix’s reputation was bad and that she bad intercourse with men prior to April, 1913; Rosa Haas and Gertrude Cooper would testify that Katie and her mother both stated that Katie was over eighteen years of age. The application stated that Will Smith resided at or near the town of Lecoma in Dent county.

The latter application for continuance was overruled on the same day. Two days thereafter, on December 10th, the case was called for trial. Both parties answered ready. The defendant made no further objections to proceeding with the trial.

The prosecutrix testified that she was born in Nebraska, March 4, 1896, and lived there five years, then in Oklahoma five years, then in Kansas five years. She moved with her parents to Rolla in February, 1912. Her mother corroborated her as to her age.

Stephen Marks, Katie’s father, conducted a restaurant, and defendant was the proprietor of a secondhand furniture store. In October, 1912, defendant was employed in the Marks restaurant. About March 1, 1913, Marks and defendant both moved to St. James. Marks ran a restaurant, and was half owner of a second-hand furniture store managed by defendant, who owned the other half. Katie worked sometimes in the restaurant and sometimes in the furniture store. She testified that defendant began making improper advances to her before they left Rolla and that near the first of March, 1913, he had sexual intercourse with her, and that she had never had such connection with any other man.

About July 22, 1913, the parents of Katie discovered the relations existing between Katie and the defendant. There was a rupture of their business relations. Marks sold his interest in the furniture store to the defendant. Katie left St. James secretly, on August 1, in company with Yiola Conlin, and went to Festus, Missouri, and corresponded with defendant under the assumed name of Katie Conlin. She testified that defendant gave her ten dollars when she left St. James, and that he sent her two dollars in a letter of August 2nd, and a dollar in a letter of August 5th. The handwriting of those letters was identified as that of defendant by the testimony of Katie and of two bankers. Those letters were read in evidence over the objection of defendant. They are too long for reproduction. They are addressed to “Dear Sweetheart,” are full of protestations of devotion. They contain, among other things, the following:

“They have got watches out for 100 miles and it would go hard with all three of us if they catch you and Viola. They are cussing us and telling all over St. James and Rolla they seen us at the very act. . . . For Gods sake Katie be careful and don’t get ruined, and I will see to it, you shall not want as long as I can work or have a dollar. Don’t worry about your folks as they have branded you as a lying hore and that old Mrs. TIicks is telling you and Kilgore done just as he pleased with you, but I know it is a black lie, but dear be careful. I will send you $2 and then when you answer this, I will send you more, as I can hardly make out the name.”
“They told Mrs. Salts I was a bad man, and you was a hore, and they caught us in the act. Mrs. Hicks and Bill Kilgore is talking. Bill says you told him he-could do just as he pleased with you, if he would go back on Julia Hicks, and be your fellow, but my dear pet don’t think for a minute I will believe anything they say about you sweetheart. I would give 500 to kiss your lips just now. They say they will spend every cent to brake me up, but if they do, I can make more. Don’t worry, and I will send you money to hold you up. But you had better stay where you are for a while at least. ’ ’

Three witnesses testified to the good reputation of prosecutrix for chastity. Miss Shaw was connected with the management of the Grant House in Rolla. She testified that Katie worked there about four months and that her reputation at the hotel was all right. Witness did not know how it was at Katie’s home. Katie was also in the employ of the Purdy Hotel, and Mr. Purdy testified that he never heard her character discussed.

Harvey Paver testified that he lived just across the street from the Marks home for six months. Didn’t know much about Katie’s reputation, but said it was good as far as he knew.

At one time Julia Hicks lived just across the street from the Marks family at the home of George Starr. Julia Hicks, it is conceded by both sides, had a bad reputation. She left Starr’s home and rented a room in the Marks home, where she lived for several months. She testified that on one occasion in summer she in the company of Will Kilgore, and Katie with Harry Kilgore, went out to the cemetery, and that witness and Will Kilgore sat on the sidewalk while Katie and Harry went into the cemetery and were gone about an hour, getting back after dark. It was common for people to walk in the cemetery. This witness testified that at one time in her room she saw Katie and Will Kilgore lying on the bed, he with one hand under her head and with one arm around her. Witness left the room a few minutes. When she returned Katie was sitting up and Will was lying on the bed. Witness noticed nothing out of the way except as stated.

There was a revival meeting at the courthouse in August, 1912. Mary Medlock testified that she heard loud talking about two o ’clock at night in front of the Marks home. She saw two girls there. One looked like Katie. There were three or four men. Asked as to Katie’s reputation for chastity, she testified: “Well, it wasn’t very bad and it wasn’t very good; they just said they was afraid Katie was lost.” On cross-examination, she testified that the remark as to Katie’s being “lost” was made by a member of the church during the revival'and that witness understood the word “lost” in the religious sense.

George Starr -testified that Katie wanted him to meet her at the bridge and he declined. He also testified that she struck herself on the hip and asked him, ‘ ‘ How do you like that ? ’ ’ and that he told her that he had a pair of his ’own. This witness, when asked what men he had ever seen with Katie, said “Bill Smith,” and when the names of other men were mentioned, he stated that he had never seen any of them with her. He did testify that one night between eleven and twelve he saw Katie and Julia Hicks on Salem avenue with two men.

William Roach, who gave his occupation as “working around here at first one thing and another,” testified that Katie’s reputation was bad. On his cross-examination the following occurred: “I heard Billy Sherman talking about her. Q. What did he say about her? A. He was talking about her being up to the Grant House. Q. What did he say about it? A. He was talking about doing business with her and she was sitting on the table and some one running in and catching them and she threw water on them.”

Eli Day testified-that he invited Katie to take a walk, and that she said, ‘ ‘ If you have a dollar, we can go down in the basement;” that they went into the basement, and he got “what she had and I wanted;” that he gave her a dollar. He refused to say what he got. When asked by the court whether his answer would incriminate him, he said that it would not. But he steadfastly refused to say what he got for the dollar.

Defendant offered in evidence the affidavit of Stephen Marks, father of prosecutrix, made on August 6, 1913, which contained the following: “That on or about the-day of July, 1913, and á long time prior thereto, one Katie Marks, a female between the ages of seven and eighteen years, to-wit, seventeen years old, a person of immoral character, and whose associates are immoral, bad and vicious, and the said Katie Marks, is incorrigible to such an extent that she cannot be controlled by those in whose custody she is.” On objection of the State the evidence was excluded.

The father of Katie Marks did not testify, and neither did the defendant.

In the evidence as given at the trial there is no mention of John Pope who was named in the defendant’s application for a continuance. That evidence does not show any suspicious conduct between Katie and Will Smith.

Gertrude Cooper testified that Katie Marks told her that she (Katie) was eighteen years old March 4 1912.

Defendant did not put in evidence any records to prove the age of prosecutrix.

Prosecutrix denied that she walked in the cemetery with Harry Kilgore, or that she was on the bed with Will Kilgore, or .that she was in the basement with Eli Day: She testified that she did not know Day. She denied seriatim the items of misconduct mentioned by defendant’s witnesses. Defendant’s witnesses who speak on that subject agree that Katie did not “keep company” with any man but Will Smith.

I. The failure to write the words “Prosecuting Attorney” after the signature of Corrie L. Arthur at the end of the information does not in-j-p The body of the information states the official character of Corrie L. Arthur. The affidavit also states it. Quantum sujficit. [State v. Kinney, 81 Mo. 101.]

II. The question as to the refusal of defendant’s applio'ation for a continuance is entitled to serious con'^deration. Such an application is addressed to the sound discretion of the trial court; and its action will he upheld except in case of a clear abuse of that discretion. [State v. Tettaton, 159 Mo. 354; State v. Riddle, 179 Mo. 287.] “ Regarding such application the rigid rule prevails that they are to receive no favorable intendments.” [State v. Good, 132 Mo. l. c. 127; State v. Blitz, 171 Mo. l. c. 536.]

In the Good case it was said (l. c. 130) that it was not to be forgotten that the defendant had been granted a continuance at a former term of the court.

In State v. Temple, 194 Mo. l. c. 252, the court examined the evidence as set out in the application in connection with the evidence given at the trial to determine the question whether there was a probability that the evidence of the absent witness would have affected the result. In that case stress was laid on the fact that defendant’s counsel made no attempt to show at the trial by cross-examination of the State’s witness that the absent witness was present at the difficulty as alleged in the application.

The evidence as to the previous chaste character of Katie Marks was not very strong, but it is to be considered that she had lived only a short time in Eolia and St. James. The evidence against her character was evidently discredited by the jury. It appears to us to be very inconsistent, contradictory and improbable.

John Pope, who was named in the application as a witness who would testify to his having sexual intercourse with the prosecutrix, is not mentioned in the evidence as given at the trial. Gertrude Cooper appeared and testified that Katie had said she was over eighteen. The application does not state that Will Kilgore would testify that he had sexual intercourse with Katie. We are not informed what men would he named by him in that connection. The names should have been given or some reason given for omitting them, especially in a second application. The application does state that William Smith would testify that he had carnal knowledge of prosecutrix. The evidence in the ease shows that he was the only man who kept company with Katie. It is possible that his testimony would throw much light on the question. If there were no other fact involved we might reverse the case because the defendant was deprived of his testimony. But the application states that Smith resides in Dent county at or near the town of Lecoma. That town is just a short distance across the Phelps county line. Two days elapsed after the application was overruled before the trial of the case began. We do not affirm that answering ready for trial two days after the overruling of .the application for a continuance was a waiver of defendant’s rights under that application. We do hold that in view of the fact that Smith is presumed to have been at his place of residence, defendant should have diligently used those two days in procuring the attendance of William Smith. What, if any, effort was made in that direction is not shown. How can this court know what the developments were in the case during those two days? They may have been such as to convince counsel for defendant that a speedy trial was best for his client. In State v. Blitz, 171 Mo. 530, an application for a continuance was overruled by the regular judge. A week later the case proceeded to trial before another judge, without a renewal of the application, and without any objection with respect to such application. It was held that defendant had waived any error of the court in overruling the application. We do not express our opinion any broader than to say that, under all the circumstances of this case, the action of the trial court in refusing the continuance does not constitute reversible error.

III. Counsel for appellant seriously contend that it was error to admit in evidence the letters of the defendant. It is contended that those letters do not relate specifically to the offense charged against the defendant. We venture to say that it would he hard to find any other subject to which they do relate. They are strongly corroborative of the evidence of prosecutrix and were properly admitted in evidence.

IV. The trial court properly excluded the affidavit of Stephen Marks offered by defendant. That proposition is too plain for serious discussion.

No point is made on the instructions and we find no fault in them.

The judgment is affirmed.

Williams, C., concurs.

PER CURIAM.

The foregoing opinion of Rot, C., is adopted as the opinion of the court.

All the judges concur.


text:
    THE STATE v. FRANK WEEKE, Appellant.
    Division Two,
    January 4, 1915.
    NO BILL OF EXCEPTIONS: Record Proper. Where no bill of exceptions is filed, the Supreme Court upon appeal is limited!- to a consideration of the record proper, and when that is free from error the judgment will be affirmed.
    Appeal from St. Louis City Circuit Court — Hoto. Kent K. Koerner, Judge.
    Affirmed.

      Anthony Hochdorfer for appellant.

      John T. Barker, Attorney-General, and 8. P. Howell for the State.
   WILLIAMS, C.

This is a proceeding by scire facias npon a forfeited recognizance to obtain final judgment and execution. By the record it appears that on a certain date the appellant became surety upon a recognizance in the sum of $1000, conditioned upon the appearance of one Harry Dudley before the circuit court of the city of St. Louis, in either division thereof to which said cause might be assigned, from day to day during the June term, 1912, and also from day to day during the October term, 1912, then and there to answer to any indictment or information which might be preferred against him; that during said October term, 1912, an information was duly filed charging said. Dudley with the crime of robbery in the first degree; that, thereafter, on the 12th day of November, 1912, first the said defendant and.then said surety, although duly called, came not but made default, and thereupon a forfeiture of said recognizance was entered and said writ of scire facias ordered to be issued as was likewise an alias capias for said Dudley. The surety was duly served with said writ of scire facias. The proceeding under the scire facias was continued from term to term until the 26th day of February, 1914, at which time, the said surety having failed to show sufficient reason why the State of Missouri should not recover upon the debt and costs according to said bond, final judgment was entered against said surety and an execution ordered. Thereupon said surety duly perfected an appeal to this court. Appellant failed to file a bill of exceptions in said cause. We are therefore limited in our review to the record proper. An examination of the record proper discloses that the proceeding was in every way regular and free from error.

The judgment is affirmed.

Boy, G., concurs.

PER CURIAM.

The foregoing opinion of Williams, C., is adopted as the opinion of the court.

All the judges concur.


text:
    THE STATE v. WESLEY ROBINSON, Appellant.
    Division Two,
    January 4, 1915.
    1. MOTION TO QUASH INFORMATION: Names of Witnesses Indorsed After Filing: Time to Investigate. Where a defendant charged with murder moved to quash the information on the ground that he had not had sufficient time to investigate additional .witnesses whose names had been indorsed on the back of the information after it was filed, and to the court’s offer to allow the case to go over in order to afford him more time his attorney replied that he did not care to have it put over, and the court then overruled the motion to quash and the trial proceeded to conviction, the court’s action was fair and did not violate or prejudice any of the defendant’s rights.
    2. CONFESSION: Evidence: Presence of Defendant’s Attorney. A confession made by an accused is admissible in evidence despite the fact that his attorney was not present when it was made, there being no showing that other than fair means were used in obtaining it or that he asked for and was denied the presence of his attorney.
    3. MURDER: Evidence: Appeal. The evidence in a trial for murder held to support a conviction.
    Appeal from Jackson Criminal Court. — Eon. Ralph 8. Latshaw, Judge.
    Affirmed.

      L. A. Knox for appellant.

      John T. Barkert Attorney-General, and 8. P. Howell for the State.
   WILLIAMS, C.

Upon an information charging him with the mnrder of his wife, Mary Eobinson, the defendant was tried in the criminal court of Jackson county, found guilty, and his punishment assessed at death. Defendant duly perfected an appeal to this court.

Evidence introduced by the State tended to establish the following facts: At the time of the tragedy defendant lived at 2213 Michigan avenue, Kansas City, Missouri. His family consisted of his wife and her two daughters by a former marriage, Alma and Massie Felton. Alma was eleven years old and Massie was eight years old. The family occupied three rooms on the second floor of a two-story house at that number. A small shed was located a short distance back of the house. The tragedy occurred about midnight on the evening of April 11, 1913. Early that evening, the deceased, accompanied by her two daughters, went to the home of Jane Hill, a short distance from defendant’s home, apparently for the purpose of a social visit. Massie Felton in her testimony referred to Jane Hill as “Aunt Janie.” About 11:30 o’clock on the night in question, deceased and her daughter Alma left the neighbor’s home to return to their home. Massie remained over night with her Aunt Jane. The nest morning Massie returned home but did not find her mother or sister there. The defendant was there and the witness asked him as to the whereabouts of her mother and her sister and he replied that they had gone to work out on Gilham Eoad. Massie never saw her mother or sister alive after they left Jane Hill’s home at the time above mentioned.

A month later a woman telephoned the police station and told the policeman at the desk that it had appeared to her in a dream that a woman’s body had been bnried in a shed back of a house located at 2213 Michigan avenue. There was some evidence tending to show that Jane Hill was the woman who telephoned the police. Three police officers were thereupon detailed to make an investigation of the premises in question. Upon arriving at the premises, the officers noticed something projecting from the ground in the shed. Some of. the earth was removed with a shovel and it was discovered that a woman’s body was there buried. The coroner was immediately notified and he, in company with an undertaker, arrived upon the scene and disinterred the body. The body was that of Mary Rob' inson, wife of the defendant. The arms and legs had been severed close to the trunk of the body. One leg was buried with the body but the two arms and other leg were missing. The body was later removed to an undertaking establishment.

The police arrested Jane Hill on suspicion and •seven days later arrested the defendant. At the time of his arrest the defendant was staying at a stone quarry camp on Mouse Creek, sis miles west and two miles south of Lee’s Summit, Missouri, at which place he was employed as a workman. The arrest was made about eleven o’clock at night by three policemen and the defendant was returned to police station No. 6 at Kansas City on the same night. Upon being arrested, the defendant gave some money to his tent mate and said: ‘ ‘ Charley, you can have this money, I won’t see you no more.” Upon his arrival at police headquarters, upon the night of his arrest, defendant was asked by the police officers as to the whereabouts of his stepdaughter Alma Felton. At first, defendant denied all knowledge as to her whereabouts, but later stated that Jane Hill had killed the little girl by choking her and that he had taken the body of the little girl down to a pasture and buried it. The defendant further stated to the officers that he had strangled his wife to death and that he and the Hill woman had buried Ms wife that night but did not have time to bury the little girl so they waited until the next night to bury her. Defendant further admitted to the police officers that after his wife was dead Jane Hill held his wife’s limbs while he cut them off: with a butcher knife and that the same operation was performed on the body of the little girl and that they burned the amputated limbs in a stove at his house. It was about three a. m., on the night of the arrest, when the defendant made the above .confession, and immediately thereafter three police officers took the defendant to the pasture where he claimed the little girl was buried. A small lake was located in the pasture. Upon reaching the lake the defendant said: “You see that willow tree there, right there at the edge of the water 1 There is where the body of Alma is buried.” The officers returned the defendant to the police station and the next morning about ten o’clock took him back to the lake in the pasture and defendant again pointed out the spot where he said the little girl was buried. An excavation was thereupon made at the point indicated and the mutilated body of the little girl was disinterred. The legs and arms were missing.

Defendant’s trial was begun on the 14th day of July, 1913. Two or three days preceding the time of the trial the defendant was taken to the office of the prosecuting attorney so that the prosecuting attorney might interrogate him concerning the implication of the Hill woman in the murder. During the time that the defendant was present in the office of the prosecuting attorney, the following persons were also present and heard the conversation between the prosecuting attorney and the defendant: James McCormack, deputy marshall; U. K. Wallace, reporter for the Kansas City Post; C. H. Thompson, reporter for the Kansas City Star; and Prank Paris, the stenographer who took down the confession made by defendant. D'efendant there admitted that he killed both his wife and stepdaughter and stated that Jane Hill had nothing to do with the murder. Thereupon the prosecuting attorney began to ask the defendant questions and the defendant made answers to them. The questions and answers were taken down by a stenographer and immediately thereafter were transcribed into typewriting and handed to the defendant; the defendant stated that he could not read. The statement was then read to him by Mr. Thompson, the reporter for the Kansas City Star, and when the reading was finished, defendant said the statement was correct. The defendant was unable to write and he signed the statement by his mark which was witnessed by all of the above named persons. All of the above persons testified at the trial except the prosecuting attorney and Mr. Thompson. It appears that Mr. Thompson was en gaged in newspaper work in another state at the time of the trial. The attesting witnesses testified that., before the defendant made the statement, the prosecuting attorney told him that he was not compelled to make a confession but that if he did make a confession it would be used against him at the trial; that no threats were used nor were any promises or offers of reward held out to the defendant to induce him to make a confession but that his confession was voluntarily made. All of the evidence above referred to concerning the murder of the little girl was admitted in evidence without objection on the part of the defendant. Later when the State offered further evidence showing defendant’s implication in the murder of the little girl, the defendant objected,' and the court excluded any further reference to the murder of the little girl. The court also gave an instruction to the jury that they should not consider any evidence other than that concerning the death of the wife.

The written confession above referred to was properly identified and introduced in evidence over the objection of defendant. Tbe written confession contained no reference to the murder of tbe little girl. In ¡this statement the defendant admitted tbat bis wife returned home between eleven and twelve o’clock on tbe night of tbe tragedy; tbat at tbe time be was in bed asleep; tbat ber coming in awakened him. In a short time bis wife came to bed. He waited until bis wife bad gone to sleep and then got up and sat on tbe edge of tbe bed for a few minutes. He then grabbed bis wife by tbe throat; put bis knees on ber stomach and choked ber to death. This took only a minute or two. Defendant then left tbe body of tbe deceased and sat on a chair for about fifteen minutes to think over tbe matter and to decide what be would do with tbe body. He then examined the body and raised tbe window so tbe body would cool. Then be built a fire in tbe stove and made himself some coffee. After tbe body bad cooled, be concluded that it was too heavy for him to carry away, so he went to tbe kitchen and procured a butcher knife and amputated tbe limbs from tbe body. One leg and the two arms be burned in the stove. It was then about three o ’clock a. m., and be thought be would not have time to burn the other leg. He then buried tbe trunk and tbe remaining leg. He stated tbat bis reason for killing his wife was jealousy and that he and bis wife were both jealous of one another. Tbe defendant did not offer any evidence.

In bis brief appellant urges but two points as grounds for reversal. These points are: (1) Tbat tbe court erred in overruling appellant’s motion to quash tbe information; (2) Tbat tbe court erred in admitting in evidence over tbe objection and exception of appellant tbe written confession of defendant. These will be discussed in their order.

I. Concerning tbe motion to quash it appears tbat on July 11, 1913, tbe prosecuting attorney endorsed upon the hack of the information the names of additional witnesses and on said date notified defendant’s attorney of said additional endorsements. The trial was begun on July 14th, and upon that date defendant filed a motion to quash the information on the ground that the additional names had been endorsed on the back of the information after the same was filed, and that defendant, had not had sufficient time in which to investigate these additional witnesses. From the bill of exceptions, it appears that, before passing upon the motion to quash, the court informed the defendant in effect that if he desired more time to investigate the additional witnesses he would allow the case to go over so as to grant the defendant sufficient time for that purpose. Thereupon defendant’s counsel replied to the court that he “did not care to have it put over.” The court then stated that if defendant did not want the case put over he would overrule the motion and the case would proceed to trial. This was accordingly done. It therefore clearly appears that defendant, under the circumstances presented, was treated with the utmost fairness by the trial court and that the action of the court in overruling the motion to quash did not violate or prejudice any of defendant’s rights. [Secs. 5057, 5097, R. S. 1909; State v. Barrington, 198 Mo. 23, l. c. 70; State v. Jeffries, 210 Mo. 302, l. c. 322; State v. Rasco, 239 Mo. 535, l. c. 553.]

II. In support of his contention that the court erred in admitting in evidence his written confession, unfair promises, but bases his contention appellant does not claim that the confession was obtained from him by duress or upon the fact that his attorney was not present when the confession was made and that his said attorney was not notified of the contemplated interview between the prosecuting attorney and the defendant, so that he might be present. It is not contended that defendant at any time before or at the time of making said confession requested or desired the presence of his said attorney. We know of no rule that would preclude the prosecuting attorney from interrogating, outside of the presence of his counsel, a person charged with crime. If it should be claimed by a defendant that his alleged confession had been obtained by unfair means, it would be no doubt some corroboration of such a claim if it should appear that before, or at the time of, making the confession, he had requested and been denied the privilege of having his counsel present. But the mere absence of his counsel at the time of making the confession would not impair the admissibility of the confession otherwise regularly and fairly obtained. In the present case there is no evidence that the confession was obtained in such a manner as to render it inadmissible, but on the other hand, it clearly appears, from the testimony of witnesses having no connection with or interest in the prosecution, that threats or unfair promises were not employed, but that the confession was voluntarily made by the defendant after the prosecuting attorney had warned him that he was not compelled to give information against himself and that, if be did, his statements would be used against him upon the trial of the case. The confession was properly admitted in evidence. [State v. Wooley, 215 Mo. 620, l. c. 683; State v. Wilson, 223 Mo. 173, l. c. 188.]

III. In the motion for a new trial it is claimed that the evidence is insufficient to support the verdict. There was testimony aside from the confession, tending to establish the corpus delicti, and the evidence as a whole was clearly sufficient to support the verdict. [State v. Wooley, supra, l. c. 671; State v. Skibiski, 245 Mo. 459, l. c. 463.]

Aside from tbe alleged errors urged by appellant in his brief we have carefully reviewed the entire record in the case and find no other point’ which merits discussion. It appears that the defendant has been accorded a fair and impartial trial and that the judgment must be affirmed and the sentence executed. It is so ordered.

Boy, G., concurs.

PER CURIAM.

The foregoing opinion of Williams, 0., is adopted as the opinion of the court.

All the judges concur.


author: ROY, C. PER CURIAM.-

text:
    THE STATE v. SYLVESTER MILLER, Appellant.
    Division Two,
    January 4, 1915.
    1. CARNAL KNOWLEDGE: Evidence of Subsequent Acts: No Election. Where there was no request for a rule to compel the State to elect upon which of the three acts of sexual intercourse it would stand until after the close of the case, it was not error to admit evidence of the second and third acts, the State . having at the close of the evidence elected to stand on the first.
    2. -: Peremptory Instruction to Acquit. The fact that a child was born is conclusive proof of carnal knowledge, and if there is substantial evidence that defendant was the guilty cause of the girl’s undoing a peremptory instruction to acquit should be refused.
    3 -: Instruction for Lower Offense. Where the evidence shows that if an offense was committed it was rape, instructions as to lower offenses are not proper. Where it shows-carnal knowledge of a girl twelve years old instructions on an attempt to rape or common assault should be refused.
    4. DEPOSITION: Non-Residence. When a litigant offers a dep- ' osition in evidence on the ground that the deponent lives outside the county such non-residence must be shown by such litigant.

      5. ARGUMENT TO JURY: Prosecuting Attorney. Remarks by tbe prosecuting attorney to tbe jury in the prosecution of a defendant charged with carnal knowledge of a girl twelve years old, that "if you do not convict this man you ought never to be allowed to sit on another jury in this county” and “this man deserves the severest punishment; he tried to get his wife to be a prostitute and to sell herself to the lust of other men,” objected to and unrebuked, exceptions being saved to the failure of the court to properly rebuke him and to instruct the jury to disregard them, were prejudicial in the extreme and reversible error.
    6. CARNAL KNOWLEDGE: Instruction: At Any Time. Instructions telling the jury that if they found defendant had carnal 'knowledge of the twelve-year-old prosecutrix “at any time,” where she testified he had sexual intercourse with her on three separate occasions, are erroneous.
    Appeal from Grundy Circuit Court. — Hon. George Hall, Special Judge.
    Reversed and remanded.

      R. E. Kavanaugh and George H. Hubbell for appellant.
    (1) Tbe tenth instruction for tbe State assumes tbe fact of three acts of intercourse,' and is a comment on tbe evidence. State v. Langley, 248 Mo. 554; Linn v. Bridge Co., 78 Mo. App. 131; Stone v. Hunt, 94 Mo. 480. (2) State’s instructions numbered 1, 2, 3, and 4 are contradictory to State’s instruction numbered 10 and constitute reversible error. State v. Palmberg, 199 Mo. 240; State v. Schenk, 238 Mo. 457; State v. Pruitt, 202 Mo. 49. (3) Tbe court erred in denying defendant’s request to instruct on assault with intent to rape. State v. Chissell, 245 Mo. 554; State v. Conway, 241 Mo. 287. (4) Tbe remarks of tbe prosecuting attorney in bis argument to tbe jury constitute reversible error, and tbe court erred in failing to rule and to rebuke counsel for tbe Staté and in failing to instruct tbe jury to disregard said remarks. State v. Jones, 249 Mo. 80; State v. Hess, 240 Mo. 147; State v. Brown, 247 Mo. 729; State v. Furgeson, 152 Mo. 99; State v. Wellman, 253 Mo. 302; State v. Bobbst, 131 Mo. 338; State v. Webb, 254 Mo. 414. (5) The court erred in sustaining the State’s objection to the deposition of Sigel Speery. Sec. 6411, R. S. 1909; 0'’Brien v. Transit Co., 212 Mo. 70; McFarland v. Accident Assn., 124 Mo. 221; Moudy v. Beef & Provision Co., 149 Mo. App. 421; Love v. Cherry, 24 Iowa, 209; Cohen v. Daniels, 25 Iowa, 90. (6) The court erred in overruling defendant’s objection to the introduction of any evidence tending to show other and subsequent acts of intercourse. State v. Palmberg, 199 Mo. 233; State v. McKinney, 254 Mo. 689. (7) The prosecutrix gave testimony of an indecent or common assault and the trial court erred in ignoring this issue in submitting the issues to the jury and denying defendant’s request. State v. Hoag, 232 Mo. 316.

      Jolm T. Earlier, Attorney-General, and Lee E. Ewing, Assistant Attorney-General, for the State.
    (1) The instructions given by the court properly declared the law of this case. When construed together there is no error in same. State v. Wilcox, 111 Mo. 572; State v. Weisman, 238 Mo. 558; State v. Montgomery, 230 Mo. 671; State v. McKenzie, 177 Mo. 715; State v. Hall, 228 Mo. 469; State v. Moore, 16S Mo. 432; State v. Miller, 111 Mo. 551; State v. Mathews, 98 Mo. 125; State v. McClure, 25 Mo. 338. Instruction 10 is correct, and appellant’s criticism of same is not warranted. Instructions 1, 2, 3, 4, when read in connection with instruction 10, are correct declarations of law. (a) Instruction No. 3 uses the term “intercourse.” The other instructions use the term ‘ ‘ sexual intercourse, ” “ carnal knowledge. ’ ’ The last two terms are synonymous, and mean a completed act of intercourse. Webster’s International Dictionary. The testimony shows a completed act; and in addition, prosecutrix gave birth to a child. State v. Swain, 239 Mo. 723; State v. Brown, 247 Mo. 584. (b) The court did not err in refusing to instruct on assault with intent to commit rape. The testimony shows a completed offense. State v. Sykes, 248 Mo. 714; State v. McCaffrey, 225 Mo. 623. (2) On the argument of this case the prosecuting attorney said: “Gentlemen, this man deserves the severest punishment; he tried to get his wife to be a prostitute and sell herself to the lust of other men.” He further stated in the argument as follows: “Gentlemen of the jury,.if you do not convict this man you ought never to he allowed to set on another jury in Grundy county; there will be no use of prosecuting bootleggers because these lawyers will make these kind of defenses for them.” We think the above remarks, especially the first one, wholly indefensible, and of such character as might he highly prejudicial to appellant. State v. Hess, 247 Mo. 147; State v. Brown, 247 Mo. 728. (3) The court did not err in excluding the depositions of Sigel Speery. Sec. 6411, R. S. 1909; O’Brien v. Transit Co., 212 Mo. 70. (4) The court did not err in overruling defendant’s objection to the introduction of evidence tending to show subsequent acts of sexual intercourse between prosecutrix and appellant. State v. Young, 99 Mo. 284; State v. Henderson, 243 Mo. 503; State v. McKinney, 254 Mo. 1. c. 698; People v. Koeller, 142 Cal. 621; Lipham v. State, 125 Ga. 52; State v. Trustee, 128 Iowa, 82; State v. Peres, 27 Mont. 358; State v. Wood-ruff, 72 Neb. 815; State v. Sykes, 112 Tenn. 572; State v. Fetterly, 33 Wash. 599. (5) The evidence was sufficient to sustain the judgment. State v. Swain, 239 Mo. 723; State v. Wilcox, 111 Mo. 569.
   ROY, C.

Defendant was charged with carnally knowing Minnie Bell Woods, a female child under the age of fourteen years. The jury convicted him and fixed Ms punishment at fifteen years ’ imprisonment in the penitentiary.

Prank Woods and wife, the parents of Minnie, were married at Trenton, Missouri, and lived there at intervals. They had lived in St. Joseph about a year prior to October, 1912. They had six children and were so poor that the children seldom had necessary clothing to go to school. The mother could neither read nor write, and was a mother before she was a wife. The father was a drunkard and was in the workhouse in St. Joseph from September 9, 1912, convicted of drunkenness and abusing his wife. James Miller, the father of Mrs. Woods, lived at Trenton. On October 8, 1912, Mrs. Woods and the younger children, including Minnie, went to Trenton, their fare being paid by the city. They moved into a house in Trenton belonging to James Miller. The defendant lived at Trenton, was forty-six years old, had a wife and two small children. He worked in the mines. He and Mrs. Woods were double cousins. Minnie’s father did not join the family at Trenton until about October 15th.

Two or three days after Mrs. Woods' and the children got to Trenton, Minnie went with the defendant to his house and staid all night. On the way the defendant gave her a half dollar to buy things to eat. She testified that he told her not to show the money to his wife and that he tickled her hand. Her sister had told her what that meant. She testified.that while at defendant’s house she showed the half dollar to defendant’s wife and told her about the defendant tickling her hand and what it meant. As to that incident the defendant testified as follows: “I know what my wife said- she told her. Q. Do you know whether or not she told her that you had tickled her in the hand and wanted her to go out in the grass ? A. I believe I heard my wife say something about that. Q. And that’s what caused the separation? A. I think it was,”

As a result, the defendant’s wife left him at once, and in a few days defendant took up his abode at the Woods home, moving his effects to that place a little at a time during the course of a week or more.

About the 18th of October defendant went to a show with Minnie. She testified that on the way back from the show they went to the defendant’s house and that defendant there had sexual intercourse with her; that several days later the carnal act was repeated at the bridge, and that about October 25th it occurred again at defendant’s house, whither they had gone for some dishes. About Christmas, Frank Woods had a disagreement with the defendant about their accounts, and the defendant left, going to live again with his wife.

Minnie told no one about defendant’s sexual intercourse with her until after a “full-term” female child was born to her on July 8,1913. That child lived about half an hour. Minnie was born July 15, 1901, and was not twelve years old until about a week after her child was born. According to the testimony of Minnie and her mother, neither of them knew that she was pregnant until she was in the throes of maternity. There was no physician present until several hours after the child was born. When the physician came, Minnie told him that the defendant was the father of the child, and he wrote that fact in the report of the child’s birth. That report was read in evidence without objection.

One Sigel Speery lived at the Woods home in St. Joseph for a few weeks. He was an old acquaintance and fellow laborer of Frank Woods. The evidence is contradictory as to just when he left the Woods home. While there he went with Minnie to a store about a block distant and bought for her a pair of shoes and some clothes. Minnie and her mother testified that he furnished those articles with money due from him to Mrs. Woods. At a term of the court previous to the trial, Speery furnished Frank Woods with, money to enable him to attend the trial of the case.

Tbe Woods family moved back to St. Joseph after the birth of the child. Minnie and her mother contradicted each other as to whether Speery slept in the mother’s room on the floor and as to whether the mother drove Speery away from the place, Minnie affirming and the mother denying.

Samantha Ferguson, Minnie’s sister, testified that she (witness) was sixteen years old and had been married over two years, and that her husband had spent eighteen months of that time in the penitentiary, while she was in the House of the Grood Shepherd. She testified that she and her husband had notified her mother never to put foot in her house again; that she had gone to the office of defendant’s attorney to tell what she knew. She testified that when Minnie was about nine years old she had seen her sitting on Speery’s lap in the presence of the family and that he had his hand under her dress.

Defendant took Speery’s deposition at Trenton, January 17, 1914, before the trial began on February 2. In that deposition he testified:

“Q. Where do you live now? A. Wherever my hat is, I am here to-day and somewhere to-morrow. Virtually this is my home. .1 was here all last winter and about three months last fall. Q. Where were you in December, 1912? A. St. Joseph. Q. Where were you in November, 1912? A. Kansas City, I believe. About that time I left St. Joseph and went to Kansas City. Q. And where were you in October, 1912? A. I went to St. Joseph from Kansas City, I was down there all winter. ’ ’

The certificate of the notary to that deposition stated that the residence of the witness was unknown. On January 29, 1914, the marshal of the city of Trenton served a subpoena on Speery in the case. The sheriff and his deputies testified that he was not in attendance at the trial, two of them stating that they had not seen him for about a week. The State objected to that deposition on the ground that the witness was in the county. The court offered to issue an attachment for the witness, which was not accepted by defendant. The objection was sustained.

The defendant denied that he ever had carnal knowledge of the prosecutrix. After the prosecutrix had testified to the first act of sexual intercourse, the defendant objected to the introduction of any evidence as to subsequent acts of the same character. The objection was overruled. At the close of all the evidence the State elected to stand on the evidence as to the first act. Defendant then asked a peremptory instruction to acquit, which was refused. The tenth instruction was as follows:

“The court instructs the jury that under the law of this State, each act of intercourse constitutes a distinct and separate crime and that the State cannot prosecute a defendant for more than one offense, and the State has elected to prosecute on the evidence as to the first act of intercourse, therefore you are instructed that you cannot convict on the evidence as to either the second or third acts of intercourse. ’ ’

The first, second and fourth instructions authorized the jury to convict if they found that defendant had carnal knowledge of Minnie Woods at any time, without distinguishing between the three times mentioned in the evidence.

Defendant requested the court in writing as follows: “At the close of all the evidence the defendant requests the court to instruct the jury with respect to all grades of offenses as shown by the evidence in this cause and to instruct the jury as to all the law in the case.” Which request was marked refused.

Counsel for the State in his argument to the jury said: “Gentlemen of the jury, if you do not convict this man you ought never to be allowed to sit on another jury in Grundy county; there’ll be no use of prosecuting bootleggers in this county because these lawyers will make these kind of defenses for them.”

. The defendant objected thereto and asked the court to rebuke counsel and. to instruct the jury to disregard the remarks. There was no ruling.

State’s counsel also said in his argument to the jury: “Gentlemen, this man deserves the severest punishment; he tried to get his wife to be a prostitute and to sell herself to the lust of other men; and his children ’ ’—

There was the same objection and request. The following then occurred:

“Court: Mr. Robinson, I don’t remember any testimony of that kind and you will keep within the record.
“Mr. Hubbell: The defendant excepts to the failure of the court to properly rebuke counsel for the State and its failure to instruct the jury to disregard said statement. ”

I. It is objected that the tenth instruction assumes that there were three acts of sexual intercourse, and that it is'a comment on the evidence. We hold that there is no ground for either of these criticisms. All the instructions, including those not set out herein, were before the jury. They clearly left it to the jury to find whether there was such an act.

II. Defendant says it was error for the court to admit evidence as to the second and third acts of intercourse. The law on that subject is very clearly stated in State v. Palmberg, 199 Mo. 233. That case holds that the question as to the time during the trial at which the State will be required to elect on which act of intercourse the prosecution will stand is one calling for the exercise of the discretion of the trial court. In this case the defendant did not ask that the State he required to elect until after the evidence was all in. As no election had been called for or made, there was no reason for excluding the evidence offered as to the subsequent acts. The method of procedure in such cases is laid down in the cases cited and can be easily followed when the case is tried again.

III. The refusal of the defendant’s peremptory instruction for an acquittal was not error. The fact that the child was born is an absolute showing that a' crime was committed. There was abundant evidence for the jury to say whether the defendant was the guilty party.

IY. The trial court properly refused to instruct on an attempt to rape and on common assault. Where the evidence shows that if any offense was committed it was rape, instructions as to the lower offenses are not proper. [State v. Sykes, 248 Mo. 708; State v. Alcorn, 137 Mo. 121.]

Y. The deposition of Sigel Speery was properly excluded. He said in his deposition “virtually this is my home.” He was in Trenton on January 17th when the deposition was taken. He was served with a subpoena there on January 29th. Two of defendant’s witnesses had seen him about a week before they testified. The evidence shows that at times he had lived at St. Joseph and Kansas City, but he claimed Trenton as his home, and it is not shown that he lived elsewhere from the time his deposition was taken to the time of the trial. When a party offers a deposition on the ground that the witness resides out of the county where the trial occurs, such non-residence must be shown by the party offering the deposition. [O’Brien v. Transit Co., 212 Mo. l. c. 72.]

VI. We have held that there was abundant evidence to go to the jury as to the defendant’s guilt. On the other hand we can appreciate the fact that the evidence was such as to call for a fair and unprejudiced consideration of the case by the jury. The prosecuting attorney did not permit such a consideration of the case. His conduct was prejudicial in the extreme.

VII. Instructions 1, 2 and 4 were erroneous in not limiting the jury to a conviction on the evidence as to the first act of intercourse.

The judgment is reversed and the cause remanded.

Williams, G., concurs.

PER CURIAM.-

The foregoing opinion óf Roy, C., is adopted as the opinion of the court.

All of the judges concur, Paris, Jin result.


author: WILLIAMS, 0. PER CURIAM

text:
    THE STATE v. WILLIAM TEAGUE, Appellant.
    Division Two,
    January 4, 1915.
    APPELLATE JURISDICTION: Common Assault. Where defendant was tried upon an information charging him with felonious assault under Sec. 448Í, R. S. 1909, and the jury returned a verdict finding him guilty of common assault and assessed his punishment at a fine of one hundred dollars, the Court of Appeals, and not the Supreme Court, has jurisdiction of his appeal.
    Appeal from Christian Circuit Court — Ho». John T. Moore, Judge.
    Transferred to Springfield Court of Appeals.

      W. P. Sullivan, George Thornberry and Roscoe Patterson for appellant. ■

      John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General for the State.
   WILLIAMS, 0.

Upon a information charging him with the crime of felonious assault, under section 4481, Revised Statutes 1909, defendant was tried in the circuit court of Christian county. The jury returned the following verdict, signed by the foreman:

“We the jury find the defendant, Will Teague, guilty of common assault and assess his punishment at $100 and costs.”

Judgment was entered on the verdict and thereafter the appellant was granted an appeal to this court. The Attorney-General has filed a motion to transfer the cause to the Springfield Court of Appeals on the ground that the defendant was found guilty of a mis- ' demeanor.

The motion must prevail. [State v. Woodson, 248 Mo. 705, l. c. 707; State v. Underwood, 254 Mo. 469, l. c. 470-1.]

It is therefore ordered that the case be transferred to the Springfield Court of Appeals, there to be heard and determined.

Boy, G., concurs.

PER CURIAM

The foregoing opinion of Williams, C., is adopted as the opinion of the court.

All of the judges concur.


author: WILLIAMS, C. PER CURIAM

text:
    THE STATE v. JOHN SOMMERS and HENRY NOLTE; HENRY NOLTE, Appellant.
    Division Two,
    January 4, 1915.
    APPEAL: No Bill of Exceptions. On an appeal by a surety on a recognizance, where judgment was entered in pursuance to a scire facias, if it appears from the record proper that the proceeding was in every way regular and free from error, and there is no bill of exceptions, the judgment will be affirmed. 263Mo22

      Appeal from St. Louis City Circuit Court — Eon. Kent K. Koerner, Judge.
    Affirmed.

      Willis E. Clark for appellant.

      John T. Barker, Attorney-General, and Thomas J. Eiggs, Assistant Attorney-General, for the State.
   WILLIAMS, C.

This is a proceeding by scire facias upon a forfeited recognizance to obtain final judgment and execution. By the record before us, it appears that, on a certain date, the appellant became surety upon a recognizance in the sum of eight hundred dollars, conditioned upon the appearance of one John Sommers, before the St. Louis Court of Criminal Correction, to answer the charge of grand larceny; that default was made and said court duly certified the recognizance and record of said default to the circuit court of the city of St. Louis, in which court a forfeiture of said bond was entered and the scire facias ordered to be issued. The surety appeared and filed answer and a hearing was had. Tjie court thereupon entered final judgment against the surety on said forfeited recognizance and ordered that execution issue. Thereupon the surety duly perfected an appeal to this court. Appellant failed to file a bill of exceptions in said cause. The appellate review is therefore limited to the record proper. From the record proper, it appears that the proceeding was in every way regular and free from error. The judgment is affirmed.

Boy, G., concurs.

PER CURIAM

The foregoing opinion of Williams, C., is adopted as the opinion of the court.

All of the judges concur.