author: ROY, C.

text:
    THE STATE v. WILLIAM KYLE, Appellant.
    Division Two,
    June 23, 1914.
    1. DEFILING FEMALE: Step-father. Where a girl under age lives with her mother and her step-father, the step-father falls within the description of Sec. 4479, R. S. 1909, designed to punish any person who shall defile any female under eighteen years of age who has been confided to his care or protection.
    2. -: -: Instructions: Weight of Defendant’s Evidence: Of His Wife's. In a prosecution under Sec. 4479, R. S. 1909, for defiling a step-daughter under eighteen confided .to defendant’s care or protection, the usual instruction on the weight of defendant’s testimony as affected by his interest, coupled with the further statement that in passing upon the testimony of defendant’s wife the jury might take into consideration the fact that she was his wife, and her interest in the result, is held to be in accordance with approved usage.
    3. -: Evidence of Prior Sexual Acts: With Others than Defendant: Instructions. Where a witness testified that he had had intercourse with the prosecutrix about four months before defendant is charged with having defiled her while under bis eare, it was erroneous to limit the jury’s consideration of that testimony to its effect upon the credibility of the prosecutrix. While the unchastity of the female is no defense, yet in this case this witness’s testimony might account for prosecutrix’s physical condition when examined by a physician.
    4. -: Remarks of Counsel: Newly Discovered Evidence: Appeal. The misconduct of the State’s counsel in asking immediately, and while in the presence of the jury, for a bench warrant for a witness who testified to prior acts of sexual intercourse with the prosecutrix, is not held to be reversible error when standing alone, but when taken in connection with an erroneous instruction on the evidence, and with an affidavit showing newly discovered evidence bearing upon the cause of prosecutrix’s physical condition, it satisfies the court that the defendant should have a new trial.
    Appeal from Pemiscot Circuit Court. — Eon. Frank Kelly, Judge.
    Reversed and remanded.

      Ward £ Collins and Shepard, Reeves £ McKay for appellant.
    (1) Instruction number 2, given by tbe court on bebalf of the State is error, and does not properly declare the law. This instruction tells the jury in effect at least that if the prosecutrix lived with the appellant and his family as one of his family (which is a comment on the evidence) regardless of her relation in kinship or otherwise, or appellant’s acts or control over her or whether her conduct was amenable to her mother or her own looking after and regardless of her minding or listening to any advice of appellant, still this instruction advises the jury that appellant is her confidee notwithstanding the evidence to the contrary that she was barely on speaking terms much less mindable terms to him. And .this instruction is so remote from legal reason or any to be found in the books we deem it unnecessary to cite authorities as to how it could have or why it did very materially affect the rights of the appellant. ' (2) Instruction number 5, does not properly declare the law in this case, and is error. (3) Instruction number 6, is clearly erroneous and should not have been given by the court on behalf of the State. This instruction takes from the jury the question of the condition of the private organs of the prosecutrix before the time it is alleged that the appellant had sexual intercourse with her, or attempted to do so. (4) Appellant’s instruction “B” properly declared the law and should have been given. The above instruction simply requires the jury to find from the evidence one of the necessary elements of the offense charged in the information, that is, that the prosecuting witness, Edna Cole, was actually confided to the care, control or protection of appellant, and such is a necessary fact for the State to prove against appellant and should have been submitted to the jury as a fact for it to find. As said by Judge Kelly in his criminal w;ork, to constitute this offense, one of the necessary elements of the offense is that the prosecutrix was confided to the care of defendant and that he defiled her by carnally knowing her while she was so confided to his care and protection. Kelly’s Criminal Law, sec. 556; State v. Buster, 90 Mo. 514; State v. Strattman, 100 Mo. '540. (5) The newly discovered evidence set forth by affidavit and otherwise in appellant’s motion for a new trial, clearly entitled appellant to a new trial, and its refusal by the court was error.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
    (1) Of the relation existing between prosecutrix and her stepfather, the defendant. State v. Woolaver, 77 Mo. 104; State v. Sibley, 131 Mo. 524; State v. Napper, 141 Mo. 406; State v. Summar, 143 Mo. 232; State v. Ilesterly, 182 Mo. 25; State v. Oakes, 202 Mo. 102; State v. Nibarger, 255 Mo. 289. (2) The unchastity of the female is not a defense. State v. Sum-mar, 143 Mo. 224; State v. Sibley, 131 Mo. 524; State v. Strattman, 100 Mo. 551; State v. McClaine, 138 Mo. 314; State v. Nibarger, 255 Mo. 289. (3) Given instruction number 2 told the jury that if prosecutrix was living with defendant as a member of his family, then, and in that event, there was a confiding and she was in his care, etc., within the meaning of the statute. State v. Woolaver, 77 Mo. 104; State v. Sibley, 131 Mo. 524; State v. Napper, 141 Mo. 406; State v. Nibarger, 255' Mo. 289. Instruction number 3 given, was on the credibility and weight to be given to the witnesses and their testimony and is a stereotyped instruction that has been given in almost every criminal or civil case. On this we need not burden this brief with citations. Instruction number 5 concerned the testimony of defendant and his wife and is in the form approved by this court in State v. Shaffer, 253 Mó. 320. Instruction number 6 told the jury that the unchastity of prosecutrix could not be interposed by appellant as a defense, but should be considered by the jury as affecting her credibility as a witness, and was correctly given. State v. Summar, 143 Mo. 230; State v. Sibley, 131 Mo. '532; State v. Rogers, 108 Mo. 532; State v. Strattman, 100 Mo. 551; State v. Nibarger, 255- Mo. 289. The bad character of the prosecutrix may be shown for the purpose of affecting her credibility. State v. Wilson, 99 Mo. 284; State v. Terry, 106 Mo. 209'; State v. Summar, 143 Mo. 230; State v. Sibley, 131 Mo. 532; State v. Nibarger, 255 Mo. 289. Instruction No. 2, ashed by defendant and refused by the court, was to the effect that although the prosecutrix continued to live with her mother and stepfather after their marriage that was not sufficient to show that prosecutrix was under the care, etc., of defendant; that he must have actually assumed and exercised control over her. There was no error in refusing to give this instruction. State v. Woolaver, 77 Mo. 104; State v. Sibley, 131 Mo. 524; State v. Sum-mar, 143 Mo. 232; State v. Napper, 141 Mo. 406; State v. Hesterly, 182 Mo. 25; State v. Oakes, 202 Mo. 102; State v. Nibarger, 255 Mo. 289. (4) Vigilant counsel for appellant did not request tbe court to rebuke the prosecuting attorney for his remarks. The court declined in the presence of the jury to issue the warrant, and did all counsel for appellant requested. There is no exception saved to the action or nonaction of the court. State v. Green, 229 Mo. 655; State v. Raferty, 252 Mo. 73; State v. Wana, 245 Mo. 563. (5) All of the alleged newly discovered evidence is of an impeaching character, cumulative and of a character not likely to have produced a different result had it been introduced and measured by the rule required in granting a new trial because of newly discovered evidence; the application falls short of meeting these requirements. State v. Miller, 144 Mo. 30; State v. Cushenberry, 157 Mo. 183; State v. McKenzie, 177 Mo. 699; State v. Speritus, 191 Mo. 24; State v. Church, 199 Mo. 605; State v. Estes, 209' Mo. 288; State v. Whitsett, 232 Mo. 523; State v. Walker, 250 Mo. 321; State v. Sebastian, 215 Mo. 87. The granting of a new trial upon the ground of newly discovered evidence is in the sound discretion of the court. Insurance Co. v. Curran, 45 Mo. 142. Absent an abuse of discretion, this court will not interfere. Cook v. Railroad, 56 Mo. 380; Schmitt v. Railroad, 160' Mo. 43; State v. Walker, 250 Mo. 322.
   ROY, C.

Defendant was convicted of defiling his stepdaughter, Edna Cole, and sentenced to two years in the penitentiary.. He was fifty years old at the time of the trial. He went to Caruthersville in December, 1911, and began boarding with Mrs. Cole, who had been divorced from her second husband, by whom she had three children, Edna, aged fourteen, Olga, aged nine or ten, ¿nd Chester, aged eight years. She had a son, Kim Wynn, by a former husband. Kim was married and lived near Ms mother, who, with Ms help, had bought a home, a house of four rooms. Prior to her marriage to defendant, she did washing for an income. On March 9, 1912, the defendant and. Mrs. Cole were married and continued to live in her house. He and his wife slept in one room, and the three cMldren in the adjoining room. There was a door between. Mr. Smith, a brother of Mrs. Kyle, slept in the same room with the cMldren two nights in a week for three or four weeks sometime between the marriage of defendant and the 15th of May, on which latter date Edna complained to her half brother, Kim Wynn, of defendant’s mistreatment of her. Wynn and his wife caused Edna to be examined by Dr. Hudgins on May 16, 1912. He found her genital organs swollen and inflamed and the hymen broken, indicating according to his opinion that she had been carnally known witMn the past month.

Defendant and his wife both testified that defendant did not in any way attempt to control Edna. He testified that she lived there as one of his family. Nellie Wynn, the wife of Kim Wynn, testified that defendant “bossed” Edna and the other children.

Edna testified that about two weeks after defendant’s marriage, he came into her room in the night and had intercourse with her; that she threatened to tell her mamma, and he said he didn’t care if she did; thát she then threatened to tell the marshal, and that he said if she did he would kill her; that he continued to have intercourse with her, in all about a dozen times, once when her grandma Sparks was sleeping' in the same room. Defendant testified denying the charge.

Bill Jones testified for the defendant that he was nineteen years of age and had lived close to the home of Mrs. Cole and Edna; that about four months before defendant’s marriage the witness had sexual intercourse with Edna in a corn crib, when she had come for corn shucks as he was shucking corn. Thereupon the following occurred:

“Judge Gossom: Your Honor, I want a bench warrant for this gentleman.
“Mr. Collins: Now, we object to that, getting up before this jury and calling for a bench warrant because it is done only for the purpose of prejudicing this jury.
“By the Court: The court will not issue any bench warrant now, Judge.”

The next day Judge Gossom for the State recalled the witness Jones and the following occurred: “Q. Your name is Bill Jones? A. Yes, sir. Q. Are you the same Bill Jones that testified in this case yesterday? A. Yes, sir.. Q. I understand that you want to testify again in this matter this morning? A. Yes, sir. Q. "Well, you may state now what you want to say in regard to this matter, just turn and tell the jury? A. I want to tell that I were persuaded to say what I said yesterday. Q. Just state to the jury whether what you said in regard to having intercourse with this little girl was true or not true? A. I never had intercourse with this girl at all; never done nothing with her. Q. And your statement yesterday that you did have was not true? A. Not true. Q. Tell the jury how you come to make this statement? A. Well, they come around after me and told me that I would have to tell it or else I would have to go over the road anyhow. Q. Who told you that? A. Will Kyle. Q. The defendant here? A. Yes, sir.”

Jones testified that he first told Hal Jordan that he (witness) had had sexual intercourse with Edna. Jordan, for the defense, testified that Jones told bim that he (Jones) had had sexual intercourse with Edna in the corn crib, and that she thought she was in a family way, and that he married to keep from marrying her. He further testified that such conversation occurred in the winter before defendant was married; that Edna’s reputation for chastity was bad and that he and Jones were talking about her.

Edna testified that she carried shucks once or twice frpm the crib, but denied that Bill Jones was there at the time, and stated that her little brother was with her.

Defendant testified that Hal Jordan told him while he was in jail about what Jones had told him, and that he had never made any threats against Jones to get him to testify.

N. Y. Lovitt testified that Kim Wynn told him about a month before defendant was arrested that they would separate defendant and his wife one way or another.

The wife of defendant testified that the door between her room and the room where the children slept was sometimes left open at night and sometimes closed, according to the weather; and that Edna did not make any outcry and never complained against defendant. On her cross-examination the following occurred: “Q. Well, you don’t know anything about whether your husband had sexual intercourse with your little girl, or not, do you? A. No, but I know he didn’t, because it looked funny to me that I wouldn’t know it because I was there all the time.”

She testified that her son Kim Wynn and Edna were angry because of her marriage with defendant.

Among the instructions the court gave the following.:

“2. You are instructed that if you believe from the evidence in this case beyond a reasonable doubt that the said Edna Cole lived with the defendant and his wife as one of the defendant’s family, then she was confided to defendant, and was in his care and protection, within the meaning of the indictment, and it is not necessary that she should have been confided to Mm by any legal proceedings of a court in order to constitute her in his care and protection.
“5. The court instructs the jury that the defendant is a competent witness in his own behalf, and his testimony is to be weighed by the same rules that govern you in weighing testimony of other witnesses; but in weighing his testimony you may take into consideration the fact that he is the defendant on trial in the case and his interest in the result of such trial. And also the wife of defendant is a competent witness for defendant but you may in passing upon her testimony take into consideration the fact that she is the wife of the defendant and her interest in the result of the trial.
“6. The court instructs the jury in this cause that even if you believe from the evidence that the prosecuting witness, Edna Cole, had sexual intercourse with one Bill Jones, that fact would be no defense in this cause and that such act should be considered by you only for the purpose of affecting the credibility of Edna Cole as a witness and for no other purpose.
“7. The court instructs the jury that although the jury may believe from the evidence that the general reputation of Edna Cole for chastity and virtue was bad, her want of chastity constituted no justification for the defendant having sexual intercourse with her, if you believe beyond' a reasonable doubt he did so, but if the jury believe from the evidence that her general reputation for chastity and virtue in the neighborhood in which she lived is bad, that fact may be considered by the jury in determimng the credit to be attached to her testimony as a witness.”

The court refused the following instruction “B” asked by defendant:

“The court instructs the jury that evidence showing, that defendant married the mother of the prosecuting witness, Edna Cole, and the said Edna continued to live with the family after the marriage of defendant to the mother of the said prosecuting witness, is not sufficient to show that Edna Cole was the ward of defendant, or was under his care, control or trust. The jury must find that defendant did actually assume control of the said Edna Cole as her stepfather, acting as such, before you can find the defendant guilty in this case.”

As a ground of his motion for a new trial the defendant alleged the discovery of new evidence as set out in the affidavits of the witnesses thereto, which affidavits were, by the motion, made a part thereof. The motion was verified by the affidavit of the defendant and contained the following:

“That defendant and his counsel used due diligence upon his trial by making diligent inquiry in the neighborhood of the alleged offense of all persons by whom it could be expected to establish any evidence in his behalf, but did not learn from the witness making said affidavit, nor from any other person or persons or source that the persons making said affidavits were the repositories of the evidence their affidavits disclose, and that owing to the nature of the case the repositories of such evidence withheld the same until after defendant had been tried and convicted; that the evidence disclosed by said affidavits is not cumulative and is very material and would likely change the result and verdict of the jury if a new trial be granted, and that said newly discovered evidence is not merely to impeach prosecutrix, but will also account for the destruction of the hymen of the prosecutrix, and the physical condition in which she was found by the witness Dr. M. H. Hudgins.”

The affidavit of Pete Paul, a half-brother of Edna, stated that he caught Edna and her half-brother Him Wynn in the act of sexual intercourse at her mother’s house, in her mother’s absence, soon after the mother’s marriage to defendant, and that lie had never told any one because she was his sister.

The affidavit of Susie Conley stated that Edna told her' that the defendant had never bothered her, and that Kim Wynn was the only one who ever touched her and that he got her to swear that defendant did it.

The affidavit of Clara Woods stated that Edna told her that Kyle had never mistreated her and that she charged him with it at the instance of Kim Wynn.

L We are of the opinion that there was no error in instruction numbered 2 given for the State, and no error refusing the second instruction asked by defendant. The fact that defendant was the stepfather of Edna and that she was living in the same house with her mother and defendant as a member of defendant’s family constituted that “confidential relation” which brings him within the statute. In State v. Sibley, 131 Mo. l. c. 525, this court held that the statute was for the protection of females under eighteen years of age who come under the custody, protection and control of stepfathers. It did not pass on the question as to what facts constituted such control. In State v. Mapper, 141 Mo. l. c. 406, it was claimed that the girl had never been confided to the defendant in that case but to his wife. This court said: “While the rights of the wife as they existed at common law have been greatly enlarged by courts and statutory enactments, and the rights of the husband correspondingly diminished, he has not become entirely a nonentity, and is yet regarded as the head of the family with power to control the same.”

In State v. Oakes, 202 Mo. 86, it was held that a school teacher who after school hours visited his pupil and carnally knew her, was within the statute. The Nibarger case, 255 Mo. 289, so recently decided by this court, shows no disposition to lessen the beneficent force of the statute.

We certainly concede that a stepfather occupies no such confidential relation to a stepdaughter who lives elsewhere than in his house, and whom he does not assume to control or protect. It will be noticed that the statute does not require that any control shall be exercised. It inflicts a penalty on him who defiles a female who has been committed to his “care and protection.”

II.Instruction numbered 5- in regard to the testimony of defendant and his wife is in accordance with the approved usage in such cases. [State v. Newcomb, 220 Mo. l. c. 66; State v. Napper, 141 Mo. l. c. 407.]

III.Instruction numbered 6 is erroneous in limiting too narrowly the effect to be given to the evidence as to her intercourse with Bill Jones.' Jones’s testimony, as first given, was that he had intercourse with her four months before defendant’s marriage. That would place it in November, 1911, about six months before she was examined by the physician. It would have accounted for the destruction of the hymen as shown by the physician’s testimony. While the unchastity of the female is no defense, yet it certainly is a fact to be considered by the jury in determining whether her physical condition was caused by defendant or by some other person.

IV.The act of counsel for the State in calling for a bench warrant for Bill Jones while he was on the stand just after he had testified to his connection with the prosecutrix was very prejudicial to the defendant. There, was no request by defendant that tbe court should censure the State’s counsel, so that the trial court cannot be placed in error for what occurred.' Still in determining the general merits of this appeal we take such conduct of State’s counsel into consideration. The next day counsel for the State put Jones back on the stand and he not only denied his former testimony as to such intercourse, but went further and testified that his former testimony was given falsely because the defendant had threatened him. That, too, in face of the fact that he admitted telling Hal Jordan of such intercourse. Jordan corroborated such statement. The defendant testified that it was Hal Jordan who told him about Jones’s statement. The facts have a strong tendency to show that Jones’s first statement was true and that his retraction was produced by the action of State’s counsel. The newly discovered evidence was partly cumulative and partly impeaching evidence merely, but the affidavit of Pete Paul goes to the vital question as- to who caused the condition in which the physician found her. W-e do not hold that the conduct of the State’s counsel in reference to the witness Jones is, standing alone, reversible error. We do not pass on that question. We do hold that such incident taken in connection with the erroneous instruction above discussed, and in connection with the newly discovered evidence, satisfies us that the defendant should be given a new trial. This court has recently said in State v. Horton, 247 Mo. l. c. 666, that in such cases prosecuting officers should “avoid injecting into the minds of the jury any matter which is not proper for their consideration, or which would add to the prejudice which the charge itself has produced in their minds.” We will add that he should also avoid the appearance of coercing defendant’s witness into retracting evidence given in his behalf. Counsel for the State doubtless acted in good faith and under a feeling of indignation that the witness had so testified, but that fact does not mitigate the destructive effect of Ms action on the rights of the defendant.

The judgment is reversed and the cause remanded for a new trial.

Williams, C., concurs.

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

All the judges concur; Walker, J., in result.-


source: Caselaw Access Project

author: FARIS, J.

license: Public Domain

text:
    THE STATE v. J. B. FINLEY, Appellant.
    Division Two,
    June 23, 1914.
    1. APPELLATE JURISDICTION: Constitutional Question: Raised by Court Sua Sponte. The Supreme Court cannot refuse to raise or to notice the question of its appellate jurisdiction, simply because an accurately specific ground of objection thereto has not been raised by a motion to transfer the cause to the proper Court of Appeals.
    2. -: Statute Unconstitutional: Subsequent Appeals. Where a statute has been held by the Supreme Court to be unconstitutional an appeal from a subsequent conviction thereunder is to the Court of Appeals; and when the cause comes on for hearing in that court it is its constitutional duty to observe and follow the prior decision of the Supreme Court holding the statute invalid.
    3.--: -: -: Motion to Quash Execution. Where the real question is whether a motion will lie to quash an execution issued upon a judgment bottomed on a statute that the Supreme Court has previously held to be unconstitutional, an appeal from the trial court’s order overruling the motion is to the proper Court of Appeals — the judgment adjudging defendant to be guilty of a misdemeanor.
    4. -: -: -: -: Unconstitutionality of Statute not Timely Raised at Trial. Defendant was conricted of a violation of Sec. 7226, R. S. 1909, and adjudged to pay a fine.of $600. On appeal to the Supreme Court it was held that said court had no jurisdiction because no constitutional question had been timely raised, and the cause was transferred to the Court of Appeals, which affirmed the judgment. Thereafter execution was issued in the trial court, and defendant filed a motion to quash the execution on the ground that “said judgment was void for the reason that said section is unconstitutional and has been so declared by the Supreme Court of Missouri.” Prior to that time the Supreme Court had declared said statute was unconstitutional. The motion being overruled, defendant appealed to the Court of Appeals, which certified the matter to the Supreme Court, for that “whether defendant has a right secured to him by the Constitution to raise a constitutional question on his motion to quash an execution in the circumstances, presents a question involving a construction ,of the Constitution.” Held, that the motion presents no such question for decision, but the real question is: Will a motion lie to quash an execution issued upon a judgment bottomed upon an unconstitutional statute? And a determination of that question does not involve a construction of the Constitution, and, hence, the Supreme Court does not have jurisdiction.
    Appeal from Callaway Circuit Court.— Hon. David H. Harris, Judge.
    Transferred to Kansas City Court of Appears.

      N. D. Thurmond for appellant.
    (1) The indictment in this case is based upon Sec. 7226, E. S. 1909. This lias been declared to be unconstitutional. State v. Eawlings, 232 Mo. 544. (2) The Constitution provides, first, “that all persons have a natural right to life, liberty, and the enjoyment of the gains of their industry.” Sec. 4, art. 2. Second, “that no person shall be deprived of life, liberty or property without due process of law.” Sec. 30, art. 2. ‘ ‘ These terms, ‘ life, ’ ‘ liberty, ’ and ‘ property, ’ are representative terms and cover every right to which a member of the body politic is entitled under the law.” State v. Jnlaw, 129 Mo. 172. The execution sought to be quashed would take appellant’s property. (3) The law under which this judgment was rendered being unconstitutional is no law at all. “And if it be true, as must be true, that an unconstitutional law is' no law, then its constitutionality is open to attack at any stage of the proceeding, and even after conviction and judgment.” Ex parte Smith, 135 Mo. 229; In re Flukes, 157 Mo. 528; Ex parte Neet, 157 Mo. 528. (4) The appellant’s contention in this case is, that the law upon which the indictment is based is a nullity and the circuit court had no jurisdiction to render the judgment, and therefore the execution should be quashed and the judgment should be declared void, as prayed for in the motion.

      John T. Barker, Attorney-General, for the State; 8. P. Bo to ell of counsel.
    (1) In order to give this court jurisdiction of an appeal from a conviction for a misdemeanor, the constitutional question must be raised at the earliest opportunity that good pleading and orderly procedure will admit. State v. Grant, 194 Mo. 364; State v. Gamma, 215 Mo. 103; State v. Boehler, 220’ Mo. 4; State v. Fleming, 221 Mo. 451; State v. Smith, 225 Mo. 579. (2)' On the former appeal this court decided that it was without jurisdiction for the reason that a constitutional question had not been properly raised and preserved in the record. The question of jurisdiction, therefore, is res adjudicata and decisive of the case at bar. When the case was here before an examination of the record disclosed that the appellant had attempted to raise a constitutional question in a motion to quash the indictment, but that he failed to renew his objection in the motion for a new trial. In that condition of the record, this court held it was without jurisdiction and transferred the case to the Kansas City Court of Appeals. In the latter court the case was heard on the merits and the judgment of the trial court affirmed. Thereafter an execution was issued on the judgment which had been affirmed by the Court of Appeals, and the appellant then filed a motion to quash the execution on the ground that Sec. 7226, R. S. 1909, was unconstitutional. In other words, the appellant has come here again with the same case, between the same parties, and asking the court to pass upon the same identical constitutional question which this court held on the former appeal had not been properly raised, and therefore was not in the case. If a constitutional question was not brought into the case prior to the rendition of judgment, which is conclusive of all matters of merit, it would s-eem that such a question could not properly be lodged in a supplementary proceeding, taken for the purpose of realizing on the judgment rendered. State v. Finley, 234 Mo. 603; State v. Finley, 162 Mo. App. 134; State v. Faulkner, 185 Mo. 691; Spratt v. Early, 199 Mo. 501; Cantwell v. Johnson, 236 Mo. 60S; Johnson v. Latta, 34 Mo. 139; State ex rel. v. Allen, 132 Mr. App. 106; Cooley’s Const. Lim. (2 Ed.), p. 29. (3) Attempting to raise a constitutional question in the motion to quash the execution comes too late to give this court jurisdiction. Lohmeyer v. Cordage Co., 214 Mo. 689; State v. Gamma, 215 Mo. 104; Hartzler v. Railroad, 218 Mo. 564; Howell v. Sherwood, 242 Mo. 540; Dudley v. Railroad, 238 Mo. 187; Ross v. Grand Pants Co., 241 Mo. 299. (4) A motion to quash the execution cannot reach error in the proceedings or matters of merit antecedent to the judgment. The only questions that may properly be taken into consideration on a motion to quash an execution are those which go merely to irregularity in the form or manner of issuance of the writ itself. In other words, the appellant cannot by means of a motion to quash the execution reach beyond that writ and make an assault upon the judgment, rendered. Sappington v. Lenz, 53 Mo. App. 52; Seaman v. Paddock, 51 Mo. App. 465; Asphalt Pav. Co. v. Kiene, 99 Mo. App. 534; Warren v. Railroad, 122 Mo. App. 257; Johnson v. Greve, 60 Mo. App. 173; Boyd v. Ellis, 107 Mo. 400; 17 Cyc. 1152, 1154.
   FARIS, J.

This is an appeal from an order made by the circuit court of Callaway county overruling a motion to quash an execution issued out of that court upon a judgment assessing certain fines against defendant upon his conviction of a misdemeanor.

For a clear understanding of the facts of the case and of the point involved here, it becomes necessary to recite certain antecedent facts:

At the September term, 1909, the defendant was indicted in two counts for violating section 7226, Revised Statutes 1909. Put upon his trial at said term he was convicted and as punishment there was assessed against him a fine in the sum of $300 on each count, or in the total sum of $600'. "We set out the sentence or judgment rendered following such conviction or so much of it as serves to cast light upon pertinent legal questions involved. It is as follows, caption and merely formal parts omitted:

“It is, therefore, considered and adjudged by the court that the State of Missouri have and recover of the defendant the said sum of six hundred dollars assessed by the jury aforesaid, together with all costs, and that execution issue against the goods and chattels of defendant, if sufficient thereof be found, but 'if no- property of the defendant be found, then to arrest defendant and commit him to the county jail until he be discharged by due process of law.”

From this judgment an appeal was taken to this court. Coming on to he heard herd, in--an opinion delivered on May 23, 1911, the case was transferred to the Kansas City Court of Appeals on the ground that no- constitutional question had been timely raised or preserved in the record in such wise as to allow of the examination of such a question in this court. This case will be found reported under the style of State v. Finley, 234 Mo. 603, to which reference is hereby made for the facts and for further illumination of the instant point. When the case came up in the Kansas City Court of Appeals it was decided and affirmed there upon the merits, no constitutional question being urged there (naturally for lack of jurisdiction), nor has there ever'’been any such question decided in this case in any court up to this time. The case will be found reported under the style of State v. Finley, 162 Mo. App. 134. Upon the coming back of the ease to the circuit court of Callaway county with the mandate of the Court of Appeals, an execution was issued herein, which execution, omitting all formal parts, including the teste of the clerk, is as follows:

“Whereas, the State of Missouri, on the 30th day of September, in the year of our Lord nineteen hundred and nine, at our circuit court for said county of Callaway, recovered against J. B. (Dude) Finley, the sum of six hundred dollars, and also its costs, which have been taxed at the sum of thirty-nine dollars and ninety cents; these are, therefore, to command you, that of the goods and chattels, lands and tenements of the said J. B. (Dude) Finley, you cause to be made the judgment and costs aforesaid, and that you have the same before the judge of our said court, on the third Monday in May, next, to satisfy said judgment and costs. And have you then and there this writ, certifying how you have executed the same.”

Thereupon defendant filed his motion to quash the above execution, because, as averred in the motion, “said judgment was void and of no effect for the reason that said section is unconstitutional and invalid and has been so declared by the Supreme Court of Missouri.” It may be said in passing that in other parts of defendant’s motion to quash it was averred that the prosecution therein had been had under section 7226, Revised Statutes 1909, and that a general execution had been issued against the property of defendant. This execution we have already set out.

Defendant’s motion to quash was overruled by the circuit court of Callaway county, and proper exceptions thereto having* been taken, an appeal was perfected to the Kansas City Court of Appeals, which court has transferred the case to us, on the ground that the motion to quash raised a constitutional question in. effect, or specifically, to quote their order, that the question of “whether defendant has a right secured to him by the Constitution to raise a constitutional question on his motion to' quash an execution in the circumstances above narrated, presents a question involving a construction of the Constitution,” and that therefore jurisdiction to determine thes^ matters is in us. The case-was accordingly sent here. The further facts of the case and its legal history, so far as we have not stated them herein, will be found set out in State v. Finley, 234 Mo. 603; State v. Finley, 162 Mo. App. 134, and State v. Finley, — Mo. App. —.

Respondent has lodged with us a motion to remand this case to the Kansas City Court of Appeals. In this motion it is urged (a) that the original conviction was for a misdemeanor; (b) that since it was held on a former appeal that no constitutional question had been timely raised, therefore the matter of a constitutional question is res adjudicata; (c) that the raising of a constitutional question subsequent to final judgment by a motion to quash comes too late, and (d) that the allegation in the motion to quash of the existence of a constitutional question is too general and is therefore insufficient to raise such question here. No other contentions are made or further suggestions lodged with us in anywise affecting the case upon the merits or in any other manner or matter except as we have stated above.

It will be noted that counsel for the State in their motion to remand do not urge specifically the point that there is no constitutional question in this case on the ground that the constitutional invalidity of section 7226, supra, was already settled long before this appeal was taken. [State v. Rawlings, 232 Mo. 544; State v. Burns, 237 Mo. 216.] That it was so ruled is the fact, however; for the Rawlings case was decided here on February 14, 1911, while the appeal in the instant ease was not taken till the 17th day of September, 1912. The motion to remand attacks our jurisdiction, which jurisdiction comes to us directly, but by a tortuous path, from the Constitution itself. Since we could raise this question of our own motion (Electric Service Co. v. Gill-Alexander Mfg. Co., 125 Mo. 140; 11 Cyc. 701, and cases cited), we cannot refuse to notice it, for that an accurately specific ground of objection to our jurisdiction has not been urged in the motion to remand.

Turning to the order of the Kansas City Court of Appeals we note that the specific ground on which that learned court holds we have jurisdiction herein and they have none, is that a constitutional question is presented by the query: Whether defendant has the right under the Constitution to raise a constitutional question on a motion to quash an execution? The Court of Appeals it is true states it in somewhat different language, viz.: “Whether defendant has a right secured to him by the Constitution to raise a constitutional question on his motion to quash an execution under the circumstances above narrated, presents a question involving a construction of the Constitution,” but we think our analysis above states the point involved as it comes to us, fairly and succinctly. Unless under the facts narrated and which we have tried to set out exhaustively a constitutional question is raised for our determination, it is conceded that jurisdiction of the case belongs in the Kansas City Court of Appeals.

It is a- nice, close question which has proven troublesome on this phase of our right to determine it., If for the very first time on a motion to quash the execution the contention were made that' section 7226, supra, is unconstitutional, a more difficult proposition would be before us on the phase of our jurisdiction, but a less vexing one on the phase of its availability to defendant. But here the utter voidness and invalidity of section 7226, under which defendant was convicted, has long since been determined. [State v. Rawlings, supra.] It is the duty of the several courts of appeals to observe and follow the ruling of this court on this section of the statute, when next a prosecution thereunder shall be followed by an appeal. [Harburg v. Arnold, 87 Mo. App. 326; Bussiere v. Sayman, 171 Mo. App. 11.] Subsequent appeals in such prosecutions, even though the constitutionality of section 7226 be again properly and timely raised therein, will be cognizable in the courts of appeals and not in this court. [Dickey v. Holmes, 208 Mo. 664; State v. Campbell, 214 Mo. 362; Bank v. Glass Co., 243 Mo. 409; Richmond v. Creel, 253 Mo. 256.] Not only upon the next appeal — should such ever occur — from any prosecution under this section, but in all matters affecting its constitutionality, the Courts of Appeals will, we apprehend, feel constrained to treat it hereafter as invalid and void, because we have so ruled it and because said courts are in constitutional duty bound to follow us. [Sec. 6, Am. of 1884 to Constitution of Mo. 1875, and cases supra.] Therefore having regard to the already adjudg-ed invalidity of section 7226, does not the -controversy stand thus, and may we not in all legal truth and logic recast our question, thus: Will a motion lie to quash an execution issued upon a judgment bottomed upon an unconstitutional statute? The premises regarded what more is there upon this record to determine, when the above question of practice has been answered? Should this execution be quashed? Not because it is unconstitutional; not because by the motion to quash a constitutional question is raised; but simply and solely because.it issued on a judgment based on an unconstitutional statute. Is the latter fact a ground meet for quashing the execution? We are not able to see any other question in the case at this time. Throughout it must be kept in mind, not' only that movent says section 7226 is unconstitutional, but in addition he says, “it has already been so declared,” and this we notice as true.

We can readily perceive a condition which might require us, since we have sole jurisdiction to determine constitutional questions, to go further and determine also whether the matter was by the facts or upon the record so presented as to bring it before us upon a constitutional point. But in our view that is not this case. Even if it were the case neither the diligence of learned counsel on either side, nor our own lengthy — b-ut concededly not exhaustive' — research has found for us a case exactly in point holding that jurisdiction would be thus unquestionably conferred on us. The cases of Bennitt v. Railroad, 44 Mo. App. 372; State ex rel. v. Court of Appeals, 97 Mo. 276; State v. Dinnisse, 109 Mo. 434; State v. Dinnisse, 41 Mo. App. 22, and Ash v. Independence, 145 Mo. 120, are slightly in point, but clearly in no way decisive of the question. Persuasive even against this view and suggested arguendo only, having reached the view that the serious question last mooted is not in the case, is the language of Judge Ellison in the case of Dollar Savings Bank v. Ridge, 79 Mo. App. l. c. 32, where he says:

“It may be suggested that in the decision we now make we are construing the Constitution, and that the question we are now deciding should be decided by the Supreme Court. But we necessarily must decide in the first instance whether we have jurisdiction of a case. We do this constantly in certifying cases to the Supreme Court and in refusing to certify. Our decision of such question is not final, since if we refuse to' certify on the ground that we have jurisdiction, our mistake may be, and frequently is, corrected by mandamus from that court; and if we certify a case to that court which ought not to have been sent there it may be, and frequently is, re-certified to this court. In these matters we do not construe the Constitution;, we merely pass on the question whether there is anything in the case calling, for a construction of the Constitution.”

Coming to the conclusion that there is in the case' neither a constitutional question undetermined nor one raised in any way upon the record, but that the sole question is the legal efficacy of a motion to quash an execution issued upon a judgment, which judgment is founded upon a confessedly unconstitutional statute,, we are constrained to hold that we have no jurisdiction. It is therefore ordered that this case be transferred to the Kansas City Court of Appeals.

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


text:
    THE STATE v. JEFF RHOTEN, Appellant.
    Division Two,
    June 23, 1914.
    PERJURY: Corroboration. Corroborative evidence against the accused on a prosecution for perjury means evidence aliunde which tends to show the perjury independent of any declaration or admission of the prisoner and the person to be corroborated.
    Appeal from Ozark Circuit Court. — Ron. John T. Moore, Judge.
    Reversed.

      G. W. Thornberry for appellant.

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

The defendant, on a conviction of perjury, was sentenced to two years in the penitentiary and has appealed.

It is charged that the offense was committed on the trial of one Jump for violation of the Local Option Law. The specification of the testimony of this defendant on that trial which is alleged to' have been false is as follows: “That he, the said Jeff Rhoten, did not buy intoxicating liquors from the said W. R. Jump in Ozark county at any time within a year before the 23d day of February, 1912, and that he the said Jeff Rhoten while in company with Ode Long did not get whiskey at the said mill of the said W. R. Jump at any time within one year before the 23d day of February, 1912, and that he the said Jeff Rho-ten did not offer the said whiskey so received at the said mill belonging to said W. R. Jump to the said Ode Long.”

On the trial it was proved by the testimony of the stenographer that defendant testified as charged on the trial of Jump.

Ode Long, for the State, testified that in January, 1912, he and defendant were passing near the mill of said Jump, and then testified as follows: ‘ ‘ He says to me, ‘Ode, can you buy whiskey down here?’ and I says, ‘No, they won’t sell me whiskey,’ and he says: ‘By God, I can get her,’ and he says, ‘You get off and go around on the old picnic ground’ — this is a field of Mr. Polk Hall’s and one road passes the mill this way (indicating), and he says: ‘You go down on the old picnic ground and wait for me, ’ and I went around where the fence makes the last crook to turn toward the mill and I seen him ride up to the mill and get down and went in and was gone some four or five or ten minutes and he came out and got on the horse and made straight to me and when he got up to me he pulled out a pint bottle of whiskey and said something about it being good, and that he paid a dollar for it.”

He further testified that defendant did not say whether he got the whiskey from Jump.

Jump, on behalf of defendant, testified that he did not sell any whiskey to the defendant.

On cross-examination the following occurred:

“Q. I will ask you if it isn't a fact yon did sell whiskey there and also kept it there in a room, in the mill, prior to that date? A. Tes, sir.”

At the close of the evidence the defendant asked an instruction to acquit him.

The Cyclopedia of Law and Procedure, vol. 30, p. 1455, says, ‘ ‘ Corroborative evidence against the accused on a prosecution for perjury means evidence aliunde which tends to show the perjury independent of any declaration or admission of the prisoner and the person to be corroborated.” In State v. Hunter, 181 Mo. l. c. 335, it was said: “The additional evidence need not be such as, standing by itself, would justify a conviction in a case where the testimony of a single witness would suffice for that purpose, but it must be at least strongly corroborative of the testimony of the accusing witness.”

The information did not charge defendant with having falsely testified that Jump did not keep and sell whiskey. Jump expressly testified that he did not sell any to the defendant. Leaving the testimony of Ode Long out of consideration, the evidence of Jump would not have the slightest tendency to prove that Jump sold the liquor to defendant, but is directly to the contrary.

The judgment is reversed and the defendant discharged.

Williams, G., concurs.

PER CURIAM. — The foregoing’ opinion of Roy, C., is adopted as the opinion of the court.

All the judges concur.


text:
    THE STATE v. CHARLES SNEAD, Appellant.
    Division Two,
    June 23, 1914.
    1. APPEAL: Criminal Case: No Counsel for Appellant: Matters Considered. Although defendant is not represented by counsel in the Supreme Court, all matters of alleged error subject to review upon the record and all matters of exception properly * preserved for review in tho bill, will be carefully examined.
    2. MURDER: Instruction for Manslaughter. Where defendant was convicted of murder in the second degree, he cannot complain that the trial court instructed on manslaughter in the fourth degree, since if that was error it was an error in his favor.
    3. REMARKS OF COUNSEL: In Answer to Counter Argument. A statement by the prosecuting attorney in reply to an argument of defendant’s counsel, if fair, and in explanation of the testimony, is not error.
    4. REMARKS OF COURT: Not Supported by Facts: Immaterial Matter: Shooting Deceased for Theft. Where defendant approached deceased, and pointing a revolver at her demanded that she give his cousin his money, and on her reply that she hadn’t any money shot her, the remark of the court while defendant’s counsel was objecting to the argument of the prosecuting attorney, that “there is no evidence” that the cousin “lost any money or didn’t lose any money,” was unfortunate, but not prejudicial, even though there was much testimony that the cousin had lost money and some of an inferential character that defendant believed deceased had taken it. The murder was brutish and unprovoked, and no element of murder was eliminated or mitigated or could be palliated by the fact, if it were a fact, that deceased had stolen the money of defendant’s cousin, whether the amount was or was not sufficient to constitute the theft a felony.
    Appeal from Jackson Criminal Court. — Ho». Ralph 8. Latshaw, Judge.
    Affirmed.

      Horace 8. Kimbrell for appellant.

      John T. Barker, Attorney-General, and Ernest A. Green, Assistant Attorney-General, for the State.
    (1) Conceding for the sake of argument only that the instruction for manslaughter in the fourth degree was erroneous, the error was entirely harmless, as there was no evidence whatever that authorized an instruction on any grade of manslaughter. The rule is that where there was no personal violence by the deceased toward the defendant, and no other provocation other than contemptuous and insulting remarks and epithets, there is nothing on which to base an instruction on manslaughter in the fourth degree. State v. Kennedy, 207 Mo. 537; State v. Clay, 201 Mo. 687; State v. Zorn, 202 Mo. 41; State v. Kell-e-her, 201 Mo. 630; State v. Barker, 216 Mo. 548; State v. Todd, 194 Mo. 396; State v. McKenzie, 228 Mo. 385; State v. Goldsby, 215 Mo.- 48; State v. Myers, 221 Mo. 598,; State v. Gartrell, 171 Mo. 489. In any event, appellant cannot complain of any alleged error in the instruction relating to fourth degree manslaughter, since he was convicted of murder in the second degree. State v. Baker, 246 Mo. 375; State v. Dunn, 80 Mo. 681; State v. Talbot, 73 Mo. 358; State v. Smith, 80 Mo. 519; State v. Jackson, 167 Mo. 297; State v. Johl, 170 Mo. 422. (2) Appellant -complains of alleged improper remarks on the part of the assistant prosecuting attorney and of the court. There was no reversible error committed by either the prosecuting attorney or by the court. The remarks of the prosecuting attorney were proper argument in reply to the argument of defendant’s counsel. Under the testimony in the case and the facts as brought forth from the witnesses, the statement made by the assistant prosecuting attorney was a legitimate argument of the testimony in the case. No serious objection can be urged against the inquiries propounded by the assistant prosecuting attorney and which he did not attempt to answer. In order to justify a reversal of a judgment in a criminal ease because of improper remarks by the attorney for the State, it should appear to the court that the remarks complained of were prejudicial to defendant and probably had something to do with bringing; about the verdict of the jury. State v. Hibler, 149' Mo. 484. No request was made at any time to rebuke the assistant prosecuting attorney for the argument made by him, nor was any exception taken to the remarks as made by the prosecuting officer. The only exception taken by the defendant was to the remark of the court. Consequently the remark made by the assistant prosecuting attorney is not before this court for review. State v. Easco, 239 Mo. 580; State v. Mc-Mullin, 170 Mo. 632; State v. Barrington, 198 Mo. 23. With reference to the remark of the court to the effect that there was no evidence that Walter Snead had lost any money or had not lost any money, we need only say that this remark was entirely proper on the part of the trial court in discussing the argument of the prosecuting attorney, and if any error of any kind was committed by the trial court in making the remark, the same was cured by the subsequent statement made by the court at the close of M,r. Curtin’s argument to the jury to the effect that the remarks made by the court should be disregarded and were improper.
   FARIS, J.

At the January term, 1913, of the criminal court of Jackson county, the defendant was convicted of murder in the second degree, for the killing of Martha Kimball with a pistol, and having had assessed against him as punishment therefor, imprisonment in the penitentiary for a term of ninety-nine years, has, after the usual motions, appealed to this court.

On the part of the State the testimony showed that on the evening of December 26, 1912, the deceased and another colored woman by the name of Lottie Simmons, together with several colored men, six or seven in number, were at the rooming house of deceased and the Simmons woman at lOU East Fifth street in Kansas City. At about the hour of nine'o’clock: the defendant Snead, in company with his cousin, Walter Snead, and one Rob Johnson, arrived at the above address. The evening was spent by all present in drinking and dancing. About 11:30 the deceased, Lottie Simmons. and one Holloway left the house for a walk, going toward Independence avenue; this walk was suggested by deceased, who said, ‘ ‘ The boys are getting pretty drunk; we had better get away; when we come back they will be gone.” Deceased, Holloway and the Simmons woman, after walking almost to Independence avenue, turned about and started back toward the rooming house. Shortly after' and when at the corner of Pacific and Grillis streets, they met defendant, his cousin and Johnson. Defendant, holding his revolver at his side, walked up and said to the deceased, “Martha, give this fellow [meaning his cousin] his money.” The deceased replied, “Charlie, I haven’t got any money, honest, search me,” at the same time holding up both hands; thereupon the defendant placed the revolver against her left side and fired. Deceased fell to the ground exclaiming, “Oh, oh,” and while on the ground defendant stood over her and fired two more shots into her body; death following immediately. Defendant walked down the street, jumped over a fence and ran. A post-mortem examination disclosed three bullet wounds in.the body of deceased, any one of which, the proof shows, would have been fatal.

One witness for the State testified that when defendant, Walter Snead and Johnson left the house of deceased the question was asked by one of them, “What did you lose?” also that some remark was made by one of them about a gun. While at the house there had been no trouble, or quarrel of any kind, between defendant and deceased.

"When arrested on the night of December 30th, following the homicide, defendant gave his name as “Will Davis;” he also stated that he lost the pistol in getting over the fence at Fifth and Gillis streets. On cross-examination of the officers making the arrest of defendant they stated that in the conversation with defendant in which he told them of the killing, defendant said that deceased had stolen some money from Ms cousin Walter Snead and when he asked her about it and asked her to give it back, she drew a knife and attempted to cut him, and he then shot her.

The State also offered testimony showing that following Ms arrest defendant; made a statement with reference to the shooting. This statement was offered in evidence by the State but later withdrawn.

Defendant did not testify in his own behalf, neither did he offer any testimony.

The court instructed the jury on murder in the second degree, manslaughter in the fourth degree, the presumption of innocence, reasonable doubt, self-defense and the credibility of witnesses.

Defendant is not represented here by counsel. Nevertheless, as in duty bound, the statute SO' admonishing (Sec. 5312, R. S. 1909; State v. Maggard, 250 Mo. 335), we have carefully examined all matters of alleged error subject to review upon the record, as well as such as are properly preserved for our review in the bill of exceptions. Turning to the motion for a new trial we note that defendant urges' there' eight assignments of error, covering those matters which in practice have become indigenous to a motion for a new trial and which have been facetiously denominated “the usual errors of the court,” as well as others below specifically mentioned.

I. Coining to an examination of these we note that the learned trial court instructed on manslaughter in the fourth degree. We doubt if upon the facts shown by the evidence he need to done so. [State v. Clay, 201 Mo. l. c. 687; State v. Kennedy, 207 Mo. 528.] But since defendant was convicted of murder in the second degree and not of manslaughter, and since both on the facts as well as weighing the matter by the sequel, i. e., by the grade of homicide of which defendant was convicted, defendant was in no wise hurt by this instruction, we will not bottom error on it. [State v. Baker, 246 Mo. l. c. 375; State v. Dunn, 80 Mo. 681.] If it was error, and we neither say it is nor believe it is under the facts, it was an error in favor of defendant of which naturally he may not complain. [State v. Pohl, 170 Mo. 422.]

II. In the course of the argument of the case by counsel to the jury, the following colloquy occurred:

“Mr. Curtin (counsel for the State): Did Walter Snead lose any money? What would Walter Snead say about this killing if he was here? What would he say about this killing if he was here?
“Mr. Kimbrell: We object to that as improper.
“Mr. Curtin: Tou argued that he lost his money.
"The Court: There is no evidence as to what he would say, and the prosecuting attorney cannot indulge in surmising: as to what he might say.
“Mr. Curtin (continuing).- Mr. Kimbrell says he lost some money—
“Tht Court: There is no evidence that he lost any money or didn’t lose any money.
“Mr. Curtin (continuing): He isn’t here—
“Mr. Kimbrell: We object to the remark of the court.
“The Court: Save your exception.
“Mr. Kimbrell: Exception.
“Mr. Curtin (continuing): I am answering your argument, Mr. Kimbrell. ’ ’

Also, at the conclusion of Mr. Curtin’s argument the court made the following explanation of his remark :

“The Court: The remark of the court there is no evidence in this case whether this cousin of Sneed lost any money, was improper. There is no evidence except the statement by the defendant to the officers, which has been argued to the jury. ’ ’

The argument to the jury of learned counsel for the defendant is set out in full in the record. It conclusively shows that counsel had, as contended by the prosecuting attorney, said much as to the alleged loss of money by Walter Snead, and much by inference as well as by direct assertion, charging the dead woman with having stolen this money. The arguments devoted by counsel to this matter of the alleged theft ef the money by the dead woman cover almost two typewritten pages of. the record. What the prosecuting attorney said in argument in reply relative to the lost money and which we show in the excerpt, was fully warranted upon the theory that it was a fair answer to the argument of defendant’s counsel; what he said as to the probable testimony of Walter Snead, was out of the record, but it was promptly and properly so declared by the court. Even if this were not so, defendant saved no exceptions whatever to this part of the triangular controversy. The unfortunate phase,' and that for which we would reverse this case if the matter were vital otherwise, is the evidently inadvertent remark of the learned trial judge, wherein he says that “there is no evidence that he lost any money, or didn’t lose any money. ” Later, in the language set out above, he advised the jury that his remark was improper.

The learned court fell into a slight error, in a modified sense, in these remarks of explanation. There was testimony as tp the- loss of the money running all through the case. Not only did defendant, as the judge nisi says, tell the police officers that the dead woman had gotten “Walter Snead’s money, hut three witnesses for the State detailing the res gestae, just preceding the homicide, say that defendant accused the deceased of taking his cousin’s money, requested her to give it hack to him and on her denial that she had it, shot her and killed her. All of this testimony regarding the taking of this money had come into the case from at least three other witnesses, besides the police officers. Strictly speaking none of this testimony was evidence of the loss of the money, or evidence that the dead woman took the money. But it was evidence that defendant believed deceased took it and competent evidence as a part of the res gestae that just at the instant of his shooting: her, by broad inference he accused her of stealing the money and expressly asked her to return it.' We think the remark of the learned court was unfortunate and would feel constrained to reverse the case (conceding for argument’s sake, but not deciding, that the point was properly preserved for review), if it had been touching a matter which would even tend to excuse this brutal and unnecessary killing. But what difference does it make whether the dead woman had stolen Walter Snead’s money or not? Would her theft of it warrant her murder in the unprovoked manner in which she was killed? Would the case have been different, the immediate facts of the killing regarded, if deceased had admitted taking the money and had shown it to defendant and refused to return it? We think not. Nor does it make any difference on the uncontradicted facts of this homicide whether the amount stolen was sufficient, or whether the circumstances under which the dead woman took ;it were such as to make the theft thereof a felony or not. Under no view would the theft of this money from the cousin of defendant of itself in any degree palliate or mitigate defendant’s crime. An officer of the law arresting her for the alleged theft would not have been excused if he had killed her in the circumstances under which defendant acted. The remarks of the court then constituted innocuous error for which we are forbidden to reverse a criminal case.

The facts in evidence were ample to sustain the verdict. The punishment inflicted was no more than the sodden brutishness of this uncalled-for murder richly merited. Let the judgment be affirmed.

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


text:
    THE STATE v. CHARLES PARRIS, Appellant.
    Division Two,
    June 23, 1914.
    RAPE: Evidence. Tlie evidence in a prosecution for rape held insufficient to uphold a conviction.
    Appeal from Iron Circuit Court.— lion. W. N. Evans, Judge.
    Reversed.

      Edgar é Edgar and J. H. Raney for appellant; Orchard & Cimningham of counsel.

      John T. Barker, Attorney-General, for the State; Paul P. Prosser and 8. P. Howell of counsel.
   ROY, C.

The defendant was charged with rape in an information against him, Elmer Loyd, Charles Middleton, Ora Robinson, Charles Dunn, William Brewer, Lemro Kelly and Arthur Parris. There was a severance. Defendant was convicted and sentenced to five years in the penitentiary. It is alleged that the offense occurred on October 19, 1912. The prosecutrix, Lily Mullane, was nineteen years old. She was born and reared in Virginia, near Richmond. She cannot read or write. She was married to Thomas J. Mullane in December, 1911. In August, 1912, she and her husband left Alexandria, Va., and tramped into Canada, and back through St. Louis, reaching Annapolis, in Iron county, about nine o ’clock in the morning of the alleged offense. She testified that they traveled afoot and begged their food and lodging. It does not appear how they obtained any money. He often entered saloons and got drunk, while she waited on the outside nearby. When they reached the station at Annapolis, the defendant, Charles Parris, was sitting with Will Loyd in the door of the station. There was a well, a store and a hotel close to the station. The Mullanes got a drink at the well and started down the track south. Defendant testified that she winked and nodded at him as she passed. She denies it. Mrs. Mann, who kept the hotel, testified that Mrs. Mullane looked back as she started away. As the Mullanes passed down the track, Ralph Williams and the defendants Elmer Loyd, Charles Dunn and Charles Middleton followed some distance behind. There were others with them. Behind that crowd there followed a second company of young men, Irvin Lowness, Ora Robinson, Bill Brewer, this defendant Parris, and others. After going some distance down the track, the husband of prosecutrix went back and talked with the crowd of boys nearest him, then started back down the track towards his wife. The prosecutrix testified that he went back in response to a whistle or call. The defense denies that such whistle or call was made.

Joseph Lucy and John Thompson, two citizens living to the southward, were coming north along the railroad. They testified that the rock cut was a quarter of a mile or more south of the station and that they passed Mrs. Mullane two hundred yards north of the rock cut; that the first crowd of men was a hundred yards north of her, and that the men were sitting on the track. The second crowd was approaching forty yards to the north. They saw Mhllane talking to the first crowd and saw him start in the direction of his wife who had stopped on the track. Lucy testified that as they passed the first crowd, some one said, “We will put them onto to her.” Thompson testified that some one in the crowd said, “We’ll wait and let those other fellows tackle her.” He also testified that .as they passed Mullane on the track, he did not notice that he was out of humor, that “he was just walking along like any other man. ’ ’

The evidence for the defendant is to the effect that when Mullane talked with the men, it was arranged that for a money consideration they were to be allowed sexual intercpurse with Mrs. Mullane. The men followed down the track and overtook the Mullanes. The defendant’s account of what then occurred is as follows:

“A. He says, ‘These boys have got a piece of money for you, if you want to make it; you know we are broke,’ and she said, ‘I don’t know, I’m afraid it might be like it was up the road.’
“Q. Did she say how it was up the road? A. No, she didn’t say how it was up the road; and he said, ‘I believe this is a pretty nice bunch of boys,’ and Elmer says, ‘I’ve got a dollar if you want to make it,’ and she said, ‘I don’t believe I want to,’ and Mullane said, ‘ Go on, I believe this is a pretty nice bunch •of boys,’ and she repeated over, ‘I’m afraid it might be like it was up the road. ’
“Q. What else occurred? A. Then she says, ‘Well, by God, .give me five dollars,’ and Elmer run his hand down in his pocket and pulled out the money and started to hand her a five dollar bill, and Mullane slapped him on the shoulder and says, ‘Don’t give her that much; that is too much for one man,’ and he says, ‘You all chip in and make it,’ something like that, ‘so that one man won’t have to go so much,’ and he slapped Elmer on the shoulder and said, ‘ By God, give me a cigarette,’ and then Elmer said, ‘If you are going with me, .we’ll have to go,’ and they went on down the track, one on one side and the other on the other, I believe Elmer walked out on the edge of the ties. ’ ’

Her account is as follows:

' ‘ ‘ Q. What occurred when your husband and these parties came up to where you were? A. Elmer Loyd asked me ‘how about it?’
“Q. Well, what happened then? A. I told him no.
“Q. Go ahead. A. He throwed his arms around me and I throwed him off and he turned around and said, ‘I asked you like a man, and if you don’t choose to do it, I will make you,’ and, my husband turned around and said to me, ‘For God’s sake, go with him, you will have to go anyway. ’
“Q. What was your husband doing when he said that to you? A. He was crying.
“Q. What appeared to be his condition at the time? A. Tie seemed like he was scared.”
On her cross-examination the following occurred: “Q. Your husband said, ‘For God’s sake, go with him, you will have to go anyway?’ Yes, sir.
“Q. And you went? A. Yes, sir.
“Q. You didn’t make any resistance? A. No, sir, not then.
“Q. Why didn’t you? A. Because I was scared to death.
“Q. What were you seared at? A. Those fellows.
"Q. Had they threatened you or your husband in any way? A. No, sir.
"Q. Had they done anything to make you think that they would hurt you or harm you in any way physically? A. I don’t know.
"Q. I am asking you if any of these boys had done anything in the way of making threats of personal injury to you or to your husband at that time? A. I can’t remember.
"Q. Don’t you know that they hadn’t? A. I don’t know sir.
"Q. You don’t know — weren’t you standing right there? A. Yes, sir.
"Q:. And you know that you hadn’t seen anything in the way of threats or violence, don’t you know that? A. No, sir, I don’t know it.
"Q. At the time Loyd made this statement to you, that was all that had been said or done by any of those boys, wasn’t it? A. Yes, sir, that I remember.
“Q. That was what made you seared to death! A. Yes, sir.
"Q. So that you were afraid to holloa or .make any resistance ? A. Yes, sir.
"Q. So you simply walked off with Loyd? A. He had ahold of my hand.
"Q. Was he pulling you along? A. Yes, sir.
"Q. Anyway, you walked off down there with him without making any resistance? A. Yes, sir.
"Q. You got over the right of way fence? A. Yes, sir.
“Q. How did you get over? A. Climbed over.
"Q. Ahead of him? A. Yes, sir, he held the wire down.
“Q. And you got over and waited for him to climb over? A. Yes, sir.
“Q. You stood there and waited for him to climb over. If you were scared to death at that time, why didn’t you run? A. How was I going’ to run, I was a stranger there.
“Q. Well, can you give any reason why you didn’t run? A. No, sir.
“Q. Can you give any reason why you didn’t holloa? A. I didn’t holloa.”

It is conceded that Loyd did not have intercourse with her. She testified that she prevented him by slapping, scratching and kicking him. He testified that when he saw her underclothing it was so unclean that he left and went up town. It is conceded that later in the day he was again in the company that was with her and. he made no further attempt to have intercourse with her.

James Butter testified that he was in Webb’s store in Annapolis that day before noon and heard a conversation between Loyd and' William Brewer, in which Brewer said, “I don’t believe that was his wife. He wilted when you threw the gun on him,” and that Loyd, putting his hand back this way (indicating) said, “I said stand, you s — of-a-b—. Boys, we will tie the s — of-a-b— to a rail.”

On his cross-examination the following occurred:

“Q:. Now, you have told about that conversation two or three different ways in these cases, haven’t you? A. I don’t think I have.
“Q. I will ask you if it isn’t a fact that you have at times added considerable more than you have at other times? A. I have, yes, sir.
“Q.. The first two or three trials of these cases you told a certain portion of what you have told now? A. That is correct.
“Q. Later oh, you added some more? A. That is correct.
“Q. And tonight you left out part of some that you have told? A. That is correct.
“Q. And you never have told it right? A. Yes,. I have told it right; I told all that was asked me.”

He stated that Irwin Lowness and Ora Robinson were present at that conversation. Loyd and Lowness denied that such conversation occurred. Robinson and William Brewer did not testify.

After Loyd left Mrs. Mullane, four others had intercourse with her. Then followed this defendant Parris. She testified that the four and Parris accomplished their purpose in spite of her resistance. She-testified that while Parris was with her two older men came to where they were, from an eastern direction. Those two men were John Jackson and Drew Lewis, who were looking for some hogs. Those men testified that they saw the sexual act between her and Parris, and that she made nó resistance.

Lewis testified as follows:

“Q. What did you say took place when Parris got up? A. He says to me and Jackson, ‘Come over here, boys, I’ve found -something,’ and we walked over, and Parris took me kind o’ by the arm and says, ‘here is a man, he has got some money,’ and I said, ‘No, you are mistaken,’ and she says to me, ‘you are just like the rest of the boys, you’ve got no money,’ and I said, ‘You have struck me just right.’
“Q. Was that all. of the conversation? A. Yes, sir, that is all that was said there. The man that was with her, he called her and she didn’t come right then and he come over there.
“Q. Where did he call her from? A. From the railroad.
“Q. What did he say? A. He said, ‘Come on, Lillie, let’s go,’ and she never went right then and he come over to where we was and he says, ‘Now, Lillie, if you are through with the boys, let’s go,’ and they went over towards the railroad and me and Jackson went back through the field home, and afterwards we went to Des Arc.”

Jackson and the defendant Parris corroborated that statement.

On cross-examination she testified:

‘ ‘ Q. I will ask you to state when these two men walked up there, if Charles Parris asked one of them, if he wanted some of it! A. I think’ he did.
“Q. And if the man didn’t say, ‘No, I don’t believe I care for any.’ A. Yes, sir, I think he did.
“Q. About that time your husband came from the railroad track to the fence? A. Yes, sir.
“Q. And said,.‘Lillie, if you are through, come on, let’s go?’ A. Yes, sir.
“Q. Did you make any answer to that? A. I told him all right.”

After she got back on the railroad, Lemro Kelly joined the company. During the trial of this defendant a separate information was filed against Kelly and he-became a witness for the State. He testified that he and Charles Middleton, the defendant Parris, and the Mullanes started south down the track and passed some section men. He then testified as follows:

“Q. Now what, if anything, occurred when you got down about Benson switch? A. Well, after we crossed the bridge, there was them section men, and I stopped there and "said, ‘I’m not going no further,’ and Jim Dean says, ‘Why don’t you go on and take the woman away from the man; if you are game, go on,’ and Middleton said, ‘You haven’t had none, go on, you’ve got to go on,’ and the man was taking on a little, and Parris or Middleton one says to him, ‘You cheese it right now; I’ll whip you if you don’t hush up,’ and. Mullane went up and took his wife’s hand and begged her to go with me.
“Q. You went with her, did you? A. Yes, sir.
“Q. And had intercourse with her? A. Yes, sir.
“Q. Then where did you go? A. I started back and met Middleton.
“Q. What happened then? A. Middleton went on and I went hack np to where the man and Charley Parris.
“Q. What occurred when you got up to where the man and Charles Parris were? A. The man said, were we through, and asked me for a match, and I reached my hand to get a match and Parris said, ‘Don’t you take that, I’ll kill you,’ and he started off in a fast walk.
“Q. Where was Middleton and the woman? A. About where I left them.
‘ ‘ Q. Do you know what became of them? A. They went over to that shanty.”

Dean and .the other two section men testified for the defense denying that any such conversation occurred, and further stated that they did not notice any indications of trouble between the Mullanes and those with them when they passed by them.

W. L. Whittington, a signal repairman of the railroad, saw Mrs. Mullane when she was at the water tank a. short distance south of Annapolis, and, about an hour later, he passed on his velocipede. and saw the husband and the men. with him half a mile south of the water tank. They were sitting on the railroad, and he noticed no- sign of trouble among them.

Irvin Brewer, a second cousin of three of the defendants, was at work on the railroad three-quartérs of a mile south of Annapolis. He testified that the Mullanes and those with them passed him and Prank Moss at work, and that they did not notice any sign of trouble among them.

John Lewis, the section foreman, testified that he passed about noon on a hand car and saw the Mullanes and the men with them n-ear Benson’s switch, and saw no indication of any trouble among them. Robert Seals and three other men were loading a car of lumber at Benson’s switch. Seals testified for the defense that he saw Mrs. Mullane and Kelly go down the track and disappear to one side, then come back upon the track, and saw her and Middleton gx> over to the shanty in sight about three hundred and fifty yards distantAfterwards, Kelly and Parris went to the shanty. Mr. Mullane went down the track towards Des Arc. He further testified that' Mrs. Mullane and the men with her were in sight of him at intervals for a period of three or four hours, and that he saw no indications of trouble among them. After an hour and a half or two. hours, Mrs. Mullane and Middleton and others went from the shanty to a barn close by. Mullane went to Des Arc and inquired for a justice of the peace. He told Mr. D. M. Long that he “wanted help to get his wife.” He told Mr. Brawley that, “a crowd of men had taken his wife away from him. ’ ’ He told the constable, Mr. Daniels, that he had “come for help, for someone to protect his wife that he left up there near Annapolis with a gang of men.” Daniels, Brawley and Long went to the barn and arrested the defendant Parris and others about 4:30 in the afternoon. The Mullanes stayed a short while at Des Arc and then went to Poplar Bluff. While there she had him arrested for breach of the peace, and sought to have him prosecuted for carrying a pistol. For that purpose, she called on the chief of police of Poplar Bluff, Mr. Samuel Gardner. He testified for the defense as follows:

"Q. Did she make this statement in this conversation, ‘I am not going back to Ironton to court,’ and you said, ‘why?’ A. Yes, sir.
“Q. And she said-, ‘Because I did not tell the truth on the other trial,’ and, ‘If I have to go back, I will tell the truth?’ A. Yes, sir.
“Q. Did she say in that connection that the man did not do as she stated on the other trial? A. Yes, sir.
“Q. And did she further state, 'My husband said for me to go.with them, as we needed the money!’ A. yes, sir.
“Q. Did she make this statement, ‘I got thirty cents and gave it to my husband!’ A. That is right.
"Q. Then you say you directed her to the prosecuting attorney! A. Yes, sir.”

On cross-examination he said:

“A. Well, I’m not positive, but I think that was the second time, or probably the third time that I had had him in jail there and he had been drinking very hard, and I might say in what we consider police language that be was snaky, he was all tore to 'pieces from drink.
"Q. I will ask you if it isn’t true that Mr. Mullane while in your presence, that you noticed and knew that his fear was terrific about coming back here and that he was even afraid to stay there! A. He was of a disposition, as I said, from drink and also he was kind of a frighty nature, and his whole hobby seemed to be to carry guns.
"Q. But he was afraid too all the time, wasn’t he! A. He said so; he told me after he got in jail that he was afraid they were going to mob him. ’ ’

Soon after that Mr. Mullane disappeared and has not been heard from since.

Mr. Almon Ing, prosecuting attorney of Butler county, and who had also held the same office in Wayne county testified for the defense that Mrs. Mullane called to consult him about prosecuting her husband for being drunk and making trouble for her and for carrying a gun, and for abusing her. He testified that in speaking of this case she said that the boys did not threaten her, that they did not force her, and that she did not fight, strike or kick them, that she just submitted, and that her husband was to blame for the whole thing. She made a written affidavit to the same effect which, was read in evidence by the defendant.

OPINION.

The statement of facts is equivalent to an opinion in this case. Res ipsa loquitur. Along that railroad south of Annapolis from nine in the morning until late in the afternoon there was a carnival of lust, but there is .no substantial indication that any rape was committed. Lucy and Thompson, witnesses for the State, passing along the railroad, intent on their business, heard one of the crowd, in the inception of the affair, say, “We will put them on to her,” or, “We’ll wait and let those other fellows tackle her.” That was after Mullane had gone back and talked to the men and had started back down the track. Lucy and Thompson saw no sign of trouble, and it did not occur to them that a rape was being arranged for. Tim language used was such as would have been used where the speaker thought that the woman was willing, but was not such as would come from the mouth of a ravisher. Two other reputable citizens, at least they are not attacked, John Jackson and Drew Lewis, hunting hogs, saw the affair between this defendant and Mrs. Miullané. They testified that she made no resistance, and that her husband called to her saying, “Now, Lillie, if you are through with the boys, let’s go.” She concedes the truth of that statement as to what her husband said.

Lemro Kelly, a defendant, put on the stand by the State, testified that he had intercourse with her, but that he was compelled to do it by the other defendants. Those .two, against their consent, were sent down the railroad, and off to a place of concealment in order that he, unwilling as he was, might ravish her. Strange to say, he was the only one whose attempt she did not resist. Railroad men, singly and in squads, passed along that track, saw her and the •men with her, were close to them, saw no sign of trouble and heard no call for help. Robert Seals and three others were working for hours in sight of her and the men when they would at intervals come from cover, and they got no word or sign to indicate that a rape was being committed.

When Mnllane got to Des Arc he did not say that his wife had been ravished. He told Long that he “wanted help to get his wife.” He told Brawley that ‘ ‘ a crowd of men had taken his wife away from him. ’ ’ He told Daniels that he had come “for some one to protect his wife that he left up there near Annapolis with a gang of men.” That is the language of a man who was dissatisfied that his traveling companion was detained by the way. It was not the language of a man whose wife had been ravished.

Her statements to the chief of police of Poplar Bluff and to Mr. Ing, the prosecuting attorney of Butler county, and her affidavit read in evidence, utterly destroy the value of her evidence at the trial. We are impressed with the fact that there is no evidence to indicate that she got more than thirty cents as the price of her shame. It is hard to understand why she should go through with the experience of that day with no greater financial reward. It is the only point in the State’s ease, and it is a strong one, but, strong as it is, it is overwhelmed by the fact that there is no substantial evidence of rape. We haven’t any doubt that there were many times during that day when a call or a gesture from Mrs. Mullane would have brought the whole community to her rescue. Strong as is lust, it is shame-faced and flees from the countenance of a community roused in defense of woman. Woman instinctively knows that such is the case. Having failed during almost a whole day to call for protection which was right at her hand, it is too late to ask the court to send the votaries of lust to the penitentiary for rape. Volenti non fit injuria.

The judgment is reversed and defendant discharged.

Williams, C., concurs.

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

All the judges concur.


text:
    THE STATE v. WILLIAM BREWER, Appellant.
    Division Two,
    June 23, 1914.
    .Appeal from Iron Circuit C.ourh— Hon. W. N. Evans. Judge.
    Reversed.

      Edgar S Edgar and J. H. Raney for appellant; Orchard & Cunningham of counsel.

      John T. Barker, Attorney-G-.eneral, for the State; Paul P. Prosser and 8. P. Howell of counsel.
   ROY, C.

The defendant was convicted of rape under an indictment against him, Charles Parris, and others. There were separate trials after severance. The facts are substantially the same in all these cases. In accordance with the opinion in the Parris case, ante, p. 435, the judgment herein is reversed and the defendant discharged.

Williams, C., concurs.

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

All concur.


text:
    THE STATE v. CHARLES MIDDLETON, Appellant.
    Division Two,
    June 23, 1914.
    Appeal from Iron Circuit Court. — Hon. W. N. Evans, Judge.
    Reversed.

      Edgar db Edgar and J. H. Raney for appellant; Orchard & Cunningham of counsel.

      John T. Barker, Attorney-General, for the State; Paul P. Prosser and S. P. Howell of counsel.
   ROY, C.

The defendant was convicted of rape under an indictment against him and Charles Parris and others. There were separate trials after severance. The facts are substantially the same in all these cases. In accordance with the opinion in the Parris case, ante, p. 435, the judgment herein is reversed and the defendant discharged.

Williams, C., concurs.

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

All concur.


text:
    THE STATE v. ELMER LOYD, Appellant.
    Division Two,
    June 23, 1914.
    Appeal from Iron Circuit Court. — Hon. W. N. Evans, Judge.
    Reversed.

      Edgar S Edgar and J. H. Raney for appellant; Orchard <& Cunningham of counsel.

      John T. Barker, Attorney-General, for the State; Paul P. Prosser and 8. P. Howell of counsel.
   ROY, C.

The defendant was convicted of rape under an indictment against Mm and Charles Parris and others. There were separate trials after severance. The facts are substantially the same in all these cases. In accordance with the opinion in the Parris case, ante, p. 435, the judgment herein is reversed and the defendant discharged.

Williams, C., concurs.

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

All concur.