text:
    THE STATE v. T. W. FLYNN, Appellant.
    Division Two,
    May 26, 1914.
    1. APPEAL: Bad Reputation of Appellant: Not Preserved in Motion for New Trial. The contention of appellant that, his had reputation for honesty could not be shown by the State until he had offered testimony showing good reputation, will not be considered on appeal if the point is in no wise preserved in the motion for a hew trial.
    2. INFORMATION: Duplicitous: Raised by Motion to Quash. Duplicity in an information (charging two different crimes in the same count) as a general rule is cured by verdict; but it is error to refuse to sustain a timely motion to guash a duplicitous information, and if the motion is timely made and the error properly preserved for review, a judgment of conviction, if the information is in fact duplicitous, will be reversed.
    3. -: -: Robbery. Sec. 4530, R. S. 1909, defines but one offense of robbery, but it designates two methods of perpetrating that offense. The crime may be committed in two ways, namely, by taking the property of another from his person or by taking it in his presence and against his will; and either way of committing the crime may be effected by violence to the victim’s person or by putting him in fear of some immediate danger to his person; and both ways may be charged in the same count of the same information, without violating the rule against duplicity. Thus, as in this case, the information was not duplicitous in charging in the same count that defendant committed robbery (1) by taking his victim’s money from his person and effected the taking by violence to his person and (2) by taking an order for $1000 from his victim by putting him in fear of immediate danger to his person.
    4. -: -: -: Conjunctively Stated. An information may charge the one crime of robbery and state conjunctively in the same count the two' methods of perpetrating it, since the two methods are not repugnant and inconsistent. The rule is that where by the statute a single given crime may be committed in several different ways, the information .may charge in the conjunctive that it was committed in all of such ways, provided they are not inconsistent with or repugnant to each other.
    5. ROBBERY: Sufficient Evidence: Appellate Practice. The Supreme Court does not pass upon the weight of the evidence. If there is substantial evidence of all necessary facts required to be proven in a given case, the weight of the evidence is ’ for the jury, subject to the superintendence of the trial court, who is given a broad discretion in that behalf; and there being such substantial evidence of defendant’s guilt, the Supreme Court will not say it was not sufficient to support a conviction.
    6. INSTRUCTIONS: Refusing Defendant's. It is not error to refuse correct and proper instructions requested by defendant, where the court of its own motion has already sufficiently and properly instructed the jury on the points covered by those refused.
    Appeal from Greene Circuit Court.— Hon. A. A. Johnson, Judge.
    Affikmed.

      John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
    (1) The information charges robbery in the first degree, sufficiently follows the statute and is in a form approved by this court. Sec. 4350, R. S. 1909; Kelly’s Criminal Law & Procedure (3 Ed.), 625; State v. Jenkins, 38 Mo. 372; State v. Farrar, 38 Mo. 457; State v. Calvert, 209 Mo. 280. Where the statute describes an offense as being committed in several different ways the information may charge in the same count the commission of the offense by one or more ways where the same are not repugnant. It is not improper to charge robbery by force and violence and robbery by putting in fear of immediate bodily harm in the same count. Bishop’s Stat. Crimes (3 Ed.), sec. 244; State v. Harroun, 199 Mo. 528; State v. Calvert, 209 Mo. 286. (2) Error is alleged in that the evidence does not show that there was any value attached to the order or check introduced in evidence and proven to have been signed by the prosecuting witness after threats were made and acts of violence done to him by the defendant. The information in the case at bar charges the defendant not only with taking the order or check in question for the amount of one thousand dollars, but also with taking sixteen dollars lawful money of the United States. Instruction 1 of the court instructs the jury both as to the taking of money and an order for the payment of money, and the prosecuting witness testified to having sixteen or eighteen dollars in his pocket at the time of the assault, and that this money was missing immediately after the assault. ■The putting in fear of immediate bodily injury and not the value of the property is the essence of robbery. The value of the property taken is immaterial. Kelly’s Crim. Law & Procedure (3 Ed.), 635; State v. Jenkins, 36 Mo. 472; State v. Howerton, 58 Mo. 581; People v. Stephens, 141 Cal. 489. The same property which is the subject of larceny is the subject of robbery. 34 Cyc. 1798; Sec. 4540, R. S. 1909. The check in question would certainly follow this section. The money might have been collected thereon under certain contingencies and, therefore, would be of some value. However, in the case at bar the appellant was charged with the taking of sixteen dollars in addition to the order mentioned and any amount of money, however small, is sufficient property to be the subject of larceny. Kelly’s Orim. Law & Procedure, 635; 2 Russell Or. (6 Ed.), 80; 4 Blackstone Com., 643; Bonsall v. State, 35 Ind. 460 ; State v. Jenkins, 36 Mo. 372; State v. Howerton, 58 Mo. 581.
   FARIS, J. —

Defendant, convicted in the criminal court of Greene county of robbery in the first degree and having had assessed against him as punishment therefor imprisonment for a term of five years in the penitentiary, has, after the usual motions for a new trial and in arrest of judgment, appealed to this court.

Defendant is not represented here by counsel and no brief has been filed by him or for him. Below he was represented by counsel appointed in that behalf by the trial court.

Going through the'record, as in duty bound, we note that the information was attacked both by a motion to quash urged before the trial and by a timely motion in arrest of judgment. In view of these attacks upon the information and since thereby a debatable question is presented, we set out below this information, caption and verification omitted:

Sam M. Wear, Prosecuting Attorney within and for the county of Greene, in the State of Missouri, under his oath of office informs the court that T. W. Flynn, late of the county and State aforesaid, on the - day of January, A. D. 1913, at the county of Greene and State of Missouri, did then and there in and upon one George Dooley, unlawfully and feloniously did make an assault and sixteen dollars lawful money of the United States of the value of sixteen dollars and one order on the Citizens Bank, a corporation duly organized and doing business under the laws of the State of Missouri, for one thousand dollars of the value of one thousand dollars, said order being of the following tenor:
“Jan. 11, 1913.
“To the Citizen Bank Springfield Missouri Pay to the order of T. W. Flynn One thousand dollars $1000.
George Dooley.”
All of the aggregate value of one thousand and sixteen dollars, the personal property of the said George Dooley, from the person and in the presence and against the will of the said George Dooley, hy force and violence to the person of the said George Dooley, and by putting the said George Dooley in fear of some immediate injury to his person, feloniously did rob, steal, take and carry away, contrary to the form of the statute in such cases made and provided against the peace and dignity of the State. Sam W. Wear,
Prosecuting Attorney.

It is strenuously urged in a number of assignments of error, both in the motion for a new trial (where among other places it is proper to urge them) and in the motion in arrest (where it is not proper to urge them), that the evidence adduced upon the trial was not sufficient to sustain the verdict. These contentions render it necessary to briefly set out the facts as the evidence discloses them.

As the information itself forecasts, the person alleged to have been robbed was one George Dooley. Dooley was at the time of the trial sixty-six years of age, engaged in farming in the country near Springfield and also in the business of peddling butter, eggs and feed in the latter city. Dooley had been acquainted with the defendant Flynn, as well as with the wife of defendant, for about four years prior to the alleged robbery and had at divers times during said period sold butter, milk and eggs both to Flynn, and to Flynn’s wife during defendant’s absence in Oklahoma. The alleged robbery occurred on the night of January 11, 1913, about the hour of twelve o’clock midnight, at the residence of defendant. Taking first the testimony of Dooley, the prosecuting witness, the facts as shown by the State were that on the morning of January 11, Dooley had come into Springfield with butter and milk and had gone to the house of defendant sometime in the forenoon of that day and left some butter there, and had, it seems, made arrangements with defendant’s wife to eat his dinner at the house of the latter, which he subsequently did at about three o ’clock in the afternoon. At about the hour of ten o’clock that night D'ooley again “went to the residence of defendant for the purpose, as he says, of obtaining a jug which he had left there. He found the wife of defendant at home apparently alone, and made inquiry of her as to whether she was alone and as whether anyone was coming to stay with her that night. Mrs. Flynn stated that she was alone but that she expected someone to come and stay with her. Dooley says that he was also told by Mrs. Flynn that defendant was absent in the “oil fields,” which “oil fields” appear to have been those at Tulsa, Oklahoma. Dooley further says that after talking to Mrs. Flynn for some little time she undressed in his presence and went to bed, but that while he took his shoes and overcoat off he did not himself go to bed, though he sat on the edge of the bed in which Mrs. Flynn lay, and while he was thus sitting on this bed and at about the hour of twelve o’clock the defendant suddenly pushed the door open, rushed into the room and assaulted him by striking him over the head with some sort of instrument; that this attack and these blows dazed him, and afterward from being beaten in the face by defendant, either with his fist or some weapon or other instrument, witness became partially unconscious, and while in this condition from these several attacks his pocket-book, containing some $16 or $18, his watch and some papers and documents not here pertinent, were taken from him. After the conclusion of the assault the defendant wrote out and presented a paper for his signature, which paper the witness signed, after being threatened with death unless he did so. This is the order for the payment to defendant of $1000, a copy of which is set ont in the information.

Other testimony in the case show's that Dooley was very seriously injured by this assault; that he was found at the restaurant of one McGinnis distant some four blocks from defendant’s house shortly after this assault, apparently in a dazed or semi-conscious condition and unable to give a very clear or coherent account of the manner in which he had been injured. The physician who was called to attend him at about the hour of one o’clock in the morning of January 12, testified that he found him incoherent and in a semiconscious condition. On the Monday following the assault upon Dooley,. the defendant presented to the cashier of the Citizens Bank the order set out in the information and asked that it be cashed. The cashier refused to honor this paper in the form in which it was, but wrote out a check on the bank and asked defendant to procure Dooley’s signature to such check. This does not appear from the record to have been done, nor does it appear that any money or other thing of value was ever obtained by defendant upon the order in question. When defendant was arrested the officer making the arrest found the watch of prosecuting witness in the possession of defendant.

On the part of defendant the latter testifying for himself, admitted that he had assaulted Dooley, but denied that he had taken his pocket-book or money and averred that the order which he attempted to cash and which is set out in the information was voluntarily given him by Dooley in order to prevent the arrest of Dooley for having been found by defendant in a compromising situation with defendant’s wife. In more extended detail defendant’s explanation was that he had come home from Oklahoma on a train which reached Springfield about 11:40 at m vht and had gone directly to his residence. Upon arriving there he found the door closed and fastened by having a chair placed and braced against it; that he pushed it open, struck a match and found Dooley standing in the floor engaged in putting on his clothes, and the wife of defendant, whom he had heard get out of bed, near the door and apparently in an attitude as if she had attempted to prevent defendant from entering. Defendant further states that after vainly trying to get some explanation from Dooley as to his presence in defendant’s home and bed with the defendant’s wife, that he assaulted Dooley; that in the scuffle Dooley fell out of the door on to the stone steps and into the yard. Defendant says that after he had thus thrown Dooley out of the house, or after he had thus fallen out of the house and while defendant was talking to the latter’s wife and trying to get an explanation from her, Dooley came back into the house, upon which defendant told him (Dooley) to get his clothes on and get the rest of his things, that he was going to take him to police headquarters; thereupon, says defendant, Dooley began begging him not to have him arrested and thus expose him and defendant’s wife, and asked if there were not some way of settling the matter, and that he ultimately proposed to give defendant a thousand dollars to settle it without trouble or exposure. This arrangement, according to defendant, was finally agreed upon, but having no check book, the order, as it appears in the information, was written out on a common sheet of paper.

The wife of defendant testifying for him, in the main corroborates him as to the occurrence after defendant got into the house. She goes further and says that Dooley had been in bed with her for some hour or more prior to the return of defendant; that Dooley had come to her house at about the hour of nine o’clock and had remained there until defendant came in, as stated above. She further says' that about the hour of 10:30 she undressed in Dooley’s presence and went to bed, and that thereupon he also undressed and against her will and protest, got into bed with her; that she told him to leave, bnt that he refused to do so.

Both defendant and his wife were seriously impeachéd, the former by proof of bad reputation for honesty, veracity and morality, and the latter by proof of divers conflicting statements made by her to newspaper reporters and to police officers, and by a showing that she had pleaded guilty in the police court of Springfield to the violation of sundry ordinances seriously affecting her chastity.

In passing we may say that objection was made by counsel for defendant to proof by the State of defendant’s bad reputation, among other phases, for honesty; the specific contention of defendant being that bad reputation for honesty could not be shown by the State until the defendant had offered testimony showing good reputation, which defendant had not done. But we need not further discuss this question, but will here permit it to fall out of the. case, since it is in no wise preserved for our review, either directly or by remote implication, in the motion for a new trial. We will save the discussion of it until it shall arise squarely for our ruling.

The facts above are deemed sufficient to make clear the discussion of the several questions which we consider involved in this case.

I. It is strenuously contended by defendant that this motion to quash the information in this case should have been sustained. He bottoms this contention upon the alleged ground that † ° „ the information herein charges defendant with the commission of two different offenses in the same count thereof. In other words, he avers that the information is duplicitous. If his contention be well bottomed it is equally clear that the court erred in not sustaining the motion to quash. [State v. Harroun, 199 Mo. 519.] The general rule is that duplicity in an information or an indictment is .cured by verdict (State v. Nieuhaus, 217 Mo. 332; State v. Davis, 237 Mo. 237); but that it is error to .refuse to sustain a demurrer or a motion to quash a duplicitous indictment or information when the attack is timely made and the error properly preserved for review. There is no question but that the attack here was properly and timely made, and if it turn out that this information is in fact duplicitous, that the error is and ought to be fatal.

Turning to section 4530, Revised Statutes 1909, which defines the offense of robbery in the first degree, under which defendant here was convicted, we find that it defines and denounces but a single offense (State v. Montgomery, 109 Mo. 645); but that it sets out, so far as the degree and phase thereof shown by the evidence in this case is concerned, at least two methods of perpetrating the one crime defined. That is to say, the crime of robbery in the first degree may be perpetrated in two ways, viz.: either by taking the property of another from his person, or by taking it in his presence and against his will; the means by which such crime is perpetrated may be either by violence to the victim’s person, or by putting him in fear of some immediate injury to his person. The proof in this case clearly shows that the taking of Dooley’s money was from his person, and that it was perpetrated by violence to his person; that is, by assaulting, beating and wounding him and by forcibly extracting his pocket-book from his person, and that the taking of the order from Dooley was perpetrated by putting him in fear of immediate injury to his person, that is, by threatening him with death unless he signed and delivered to defendant said order, which among them they there concocted. ' In passing and somewhat parenthetically we may here say that some objection, not amounting in our view to a proper saving of the point for our consideration, was made .to the effect that the signing of the order on the bank, for the sum of $1000 was not robbery, and that if it was, it was not properly charged, and that the paper on which the order was written had no value and that the same was not under the proof the property of Dooley. "While, as we suggest, this point was not in our view properly preserved, yet we may say of it that the circumstances and every detail of evidence touching it were part of the res gestae (State v. Anderson, 252 Mo. 83), and as such, admissible without question as proof in the case. Outside of all of the facts and circumstances recited in the evidence and in anywise bearing upon this order, there was ample proof in the record that defendant had taken from Dooley the pocket-book and money charged in the information under such circumstances as to constitute robbery within the purview of section 4530, supra. If the sum total of defendant’s acts had upon the occasion been but the compelling of Dooley to sign the order, the point would be'a live one to vex us. But it is not and we need not worry with it.

Returning now to the question of duplicity, and turning to the facts in the case, we find that the offense charged was perpetrated both by violence to the person of Dooley and by putting him in fear. Turning to the information it will be seen that the information, as is proper, charges the means used in the conjunctive, while the statute defines this one offense of robbery in the first degree in the disjunctive. We are mindful that there are cases in which such an information would be fatally defective, but we apprehend that this arises from the fact that the charges in the information are inconsistent and repugnant to each other. For example — if a defendant were charged in a single count of an information with murder in the first degree as having been committed both by poison and by lying in wait — since such charges would be inconsistent and repugnant, we apprehend that a timely motion to quash should be and would be sustained. But as we see, that is not the condition here. The proof shows that in the instant case both ways were used. The pleader charges these facts and properly charges them in the conjunctive. They are not in anywise repugnant, but on the contrary are entirely consistent each with the other and with the facts.

From this we may with much of safety deduce the rule, that when by statute a single given crime may be committed in several different methods, the information or indictment may charge in the conjunctive, that it was committed by all of such methods, provided such different methods are not inconsistent with or repugnant to each other. [State v. Harroun, 199 Mo. l. c. 528; State v. Nieuhaus, 217 Mo. 332; State v. Montgomery, supra.] They are neither inconsistent nor repugnant with each other under the facts here, nor under the charge here.

A very similar contention arose in the case of State v. Montgomery, supra, and which differs from the case at bar only in the fact that defendant was indicted there for an attempt to rob and not for a robbery. The indictment in that case, it seems, charged defendant with having attempted to commit a robbery in both of the ways denounced by our statute. It was held that this was not improper. Touching the indictment in that case it was said by the learned judge who wrote the opinion, thus: “Stripped of its verbosity, the indictment in this case charges that the defendant and Ben Montgomery attempted to commit the crime of robbery, by attempting to take by force $170 belonging to George C. Milburn, in the latter’s presence, from his person, by violence to his person, and by putting him in fear of some immediate injury to his person. These averments are not repugnant to, but perfectly consistent with each other.”

In the case of State v. Harroun, 199 Mo. l. c. 528, the rule set out by Mr. Bishop in his several works mentioned in the excerpt, is quoted with approval, thus: “Bishop says: ‘If, as is common in legislation, a statute makes it punishable to do a particular thing specified, “or” another thing, “or” another, one commits the offense who does any one of the things, or any two, or more, or all of them. And an indictment may charge him with any one, or with any large number, at the election of the pleader; employing, if the'allegation is of more than one, the conjunction “and” where “or” occurs in the statute. “The rule,” it was once observed, “is undoubtedly limited in its application to cases where the offenses created in a statute are not repugnant. ’ ’ And whatever he the form of the allegation, the proofs need sustain only so much of it as constitutes a complete offense.’ [Bishop on Statutory Crimes (3 Ed.), sec. 244.]

“ The same author says: ‘ To repeat what was explained in another connection, if a statute makes criminal the doing of this, or that, mentioning several things disjunctively, there is but. one offense, which may be committed in different ways; and in most.instances all may be charged in a single count. But the conjunctive “and” must ordinarily in the indictment take the place of “or” in the statute, else it will be ill as being uncertain. And proof of the offense in any one of the ways will sustain the allegation. On the other hand, the indictment may equally well charge what comes within a single one or more classes, less than all, of the statute, and still it embraces the complete proportions of the forbidden wrong.’ [1 Bishop’s New Criminal Proc., sec. 586.] ”

It is apparent that both the statute and the adjudicated cases contemplate in a proper case the identical pleading found in the information here criticized, and so far from an information so couched being in violation of the constitutional provision that a defendant shall be informed of the charge against him, it may well be said that in a proper case such an information as the one at bar does with certainty and in detail exactly inform the defendant of the precise charge he is called upon to meet, and at the same time does not require him to meet but one single charge. It logically follows we think, on principle as well as on the decided cases, that this point should be disallowed to the defendant, and the information held good.

II. Touching the other point seriously mooted by defendant that there is not in the record sufficient evidence of defendant’s guilt to go to the jury, we may say that we have endeavored £o ge£ 011^ £he salient facts fairly, and that there is no manner of question but that these are sufficient to form the basis of the verdict rendered herein by the triers of fact. We do not sit here to pass upon the weight of the evidence. Such weight, where there is substantial evidence of all necessary facts required to be proven in a given case, is for the jury, subject to the superintendence of the trial court who is given in this behalf broad discretion. [Ewart v. Peniston, 233 Mo. 695.] In the light of this rule we cannot say that the verdict of the jury in this case is not bottomed upon sufficient evidence. In oiir view, after having gone carefully over the record, so far from finding it lacking in substance, we are constrained to say that, even when viewed upon the cold record, we are unable to see how the jury could have reached any other conclusion than that they did reach. We must, therefore, hold that the evidence of defendant’s guilt was- sufficient, if the jury believed it, and the result indicates that they did, to form the basis of the verdict returned by them.

Objections are lodged with us as to the refusal to give certain instructions offered by defendant. Some of the instructions so offered were correct and proper expositions of the law and some of them are incorrect. Where they are correct the court, as the record shows, had already sufficiently and properly instructed the jury of Ms own motion. We have gone over them with much care and find no merit in them or any of them on account of the reasons we suggest. No good purpose wouM be subserved by lengthening this opinion with any further discussion of them.

It results, therefore, that since we find no error properly preserved for our review which is of sufficient moment to justify a reversal, and since we find sufficient evidence of defendant’s guilt to justify the verdict rendered, this case must be affirmed. It is so ordered.

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


source: Caselaw Access Project

author: BROWN, J. —

license: Public Domain

text:
    THE STATE v. ED. HYDER, Appellant.
    Division Two,
    May 26, 1914.
    1. EVIDENCE: Veracity of Witness: Testimony in Another Case. It is not error to refuse to permit defendant to testify that the prosecuting witness swore falsely against defendant in another prosecution. The untruthfulness of a witness cannot be shown by specific untruthful statements.
    2. -: Remote Threats. It was not error to permit a witness to testify to threats made by defendant against the prosecuting witness a year prior to the assault with intent to hill. The remoteness of the threat might affect its probative force, but not its competency.
    3. INSTRUCTION: Interest of Defendant and Wife: Comment. An instruction telling the jury that, in determining the weight and credit to be given to defendant and his wife, they may “tahe into consideration the fact that he is the defendant and that she is his wife, and the interest they have in the result of the trial,” is unnecessary, and is subject to the criticism that it singles out certain evidence for special comment; but in this case, if error at all, was not sufficiently prejudicial to worh a reversal.
    Appeal from Greene Circuit Court. — Hon. G. H. Skinker, Judge.

      Affirmed.

      Perry T. Allen, Charles J. Wright and Edward M. Wright for appellant.
    (1) The court refused to allow defendant to testify relative to Abbott’s testimony in a pistol case, wherein defendant herein was defendant. Abbott’s attitude in that case would tend to show his animus in this, and the evidence was competent. (2) The giving of instruction 5 was error. The court singled out the defendant and his wife and warned the jury against them. '¡-The jury are told that the testimony of defendant and his wife is to be weighed by the same rules that govern the testimony of other witnesses and then that the defendant and his wife are not worthy of belief because they are the defendant and his wife. Stetzler v. Railway, 210 Mo. 712; Baymin v. Railroad, 245 Mo. 615. (3) The effect of singling out a particular witness is quite as baneful to the rights of the party in the criminal case as in the civil case. It was error to single out defendant and error to single out his wife. State v. Mintz, 24-5 Mo. 546. If the instruction is dangerous and opens the way to grave abuses when a witness is a eoindietee, the fact that the witness is a defendant or defendant’s wife does not relieve the dangerous aspect or close the way to grave abuses.

      John T. Barker, Attorney-General, and Thomas J. Biggs, Assistant Attorney-General, for the State.
    (1) The instruction is the proper instruction as to the consideration to be given by the jury to the testimony of both the defendant and the defendant’s wife. State v. Dilts, 191 Mo. 665; State v. McDonough, 232 Mo. 228; State v. Boyer, 232 Mo. 267; State v. Mintz, 245 Mo. , 547. (2) Appellant made various threats against the prosecuting witness, Abbott. The first threats made were about two years previous to the difficulty in question. Other threats were made a year previous to the difficulty, four months previous to the difficulty, and even on the day of the difficulty. Threats are admissible to show malice and motive,- and the nearness or remoteness of these threats in no way affects their competency as evidence, but only the consideration given to such threats by the jury and the weight they would have with the jury in making up their verdict. State v. Adams, 76 Mo. 355; State v. Wright, 141 Mo. 337; State v. Porter, 213 Mo. 62; State v. Kretschmar, 233 Mo. 29; State v. Whitsett, 232 Mo. 528.
   BROWN, J. —

Convicted of the crime of assault with intent to kill, as denounced by section 4481, Eevised Statutes 1909, defendant appeals from a judgment fixing his punishment at five years in the penitentiary.

The information, which is legally sufficient, charges that defendant, with malice aforethought, shot at, with intent to kill, one Walter Abbott, on May 21, 1912.

For several years prior to the commission of the alleged offense the defendant resided on a farm near Pearl station in Greene county, Missouri. During that time Walter Abbott, the prosecuting witness, resided on an adjoining* farm owned by one W. E. Watson. More than a year before the assault a strong personal dislike sprang up between defendant and Abbott. About August, 1911, Abbott disturbed the peace of defendant by cursing and calling him vile names. For that offense Abbott was prosecuted and fined. The fining of Abbott did not satisfy defendant, who seems to have wanted personal revenge. He (defendant) made numerous threats that he would settle with Abbott. Two days before the assault defendant admits that he voluntarily insulted and cursed Abbott at Pearl station, but it appears that the presence of defendant’s brother, Frank Hyder, averted any assault or fight at that time. The day of the assault, defendant was on a train with W. R. Watson (Abbott’s landlord) coming from, Springfield to Pearl •station, at which time defendant made several threats, concerning which witness Watson gave evidence as follows:

“Defendant said, ‘I give your baby a talking to the other day.’ I says, ‘Who was that?’ he says, ‘Walter Abbott.’ I says, ‘He is no baby of mine, he is able to take care of himself.’ He says, ‘He didn’t do it the other day;’ he says, ‘I called him everything I could think of, all the names I could think of, and he took it; he didn’t take care of himself.’ I says, ‘I wish you hadn’t stirred that up.’ He says, ‘You are harboring him under you; God damn you, you get rid of him and don’t be long about it.’ I says, ‘I am not harboring him; he is a gentleman, and he is trying to .make a living for his family.’ He says, ‘He is not a gentleman, he is a God damn s — of-a-b—, and the man that harbors him is no better than he is.’ He says, ‘You get rid of him and don’t be long about it.’ I says, ‘I can’t get rid of him before the'first of September; he is going to leave then, but you wouldn’t be in any better shape then, for he says he is going to rent Fred Staley’s place.’ Hyder says, ‘No, he ain’t, we can’t live that close together, this county is not big enough for us both.’ I says, ‘He says he is.’ He says, ‘Now God damn you, you get rid of him and don’t be long about it.’ He says, ‘Do you remember what I told you last spring?’ I says, ‘What was that?’ He says, ‘You remember about him cussing me that time at the store, and I told you to tell him that if he didn’t get right down on his knees in the dirt to me and make his acknowledgment I was going to kill him.’ I says, ‘I told him, and he never done it, did he?’ He says, ‘No, but I will do it, though,’ He says, ‘This thing has got to be settled just as1 soon as the train comes into Pearl; we can’t live together; God damn him, I am going to settle it as soon as the train gets into Pearl. ’ ’ ’

Charles Ross, who was on the train with defendant and Watson, corroborated Watson as to the threats made by defendant at that time.

On reaching Pearl station witness Watson went immediately to the home of Abbott and informed Abbott’s wife of the threats before detailed, whereupon Abbott’s wife communicated the threats to her husband, who was working'on the public road near-by. She also delivered to her husband a revolver.

Abbott was working with five other persons on a road-grader between Pearl and defendant’s house. After remaining at Pearl station about three-quarters of an hour and making inquiry as to where he could find Abbott, defendant walked down to where the latter was at work.

The testimony of the five persons who were working with Abbott, as well as Abbott himself, is that when defendant approached within about twenty steps of Abbott he drew a revolver and said: “Get ready, you---, I’ve come to kill you,” and shot at Abbott. The shot went wild, and thereupon Abbott drew" a revolver and shot defendant. The parties advanced towards each other and continued the shooting. When close enough, defendant knocked Abbott’s pistol out of his hand, and as defendant’s pistol would not fire any more, he threw it at Abbott. Defendant finally fell and Abbott struck him several times on the head with a rock, and then voluntarily discontinued the fight. Abbott was not struck by any of the shots fired by defendant, but defendant was hit twice by Abbott’s shots and was confined to his bed a week or more as the result thereof. There was a slight variance between the witnesses for the State as to the remark made by defendant just before he began shooting at Abbott, but their evidence in substance is identical.

Defendant, testifying in Ms own behalf, denied making any threats against Abbott, and further testified that he did not seek a difficulty with Abbott, but that Abbott began the attack and fired the first shot. The wife and daughter of defendant, who were about a half mile away and could not see the parties, gave evidence to the effect that they heard the shots and saw the smoke of the pistols, and that said smoke indicated that- Abbott began the shooting.

For reversal defendant asserts that competent evidence for defendant was excluded; improper evidence for the State admitted, and an improper instruction given on behalf of the State.

I. Defendant contends that the court erred in refusing to allow him to testify that Walter Abbott, the prosecuting witness, swore falsely against defendant in another prosecution. The court did not err in excluding this evidence. While it might, have tended to prove that Abbott was unfriendly to defendant, its main purpose was to prove that Abbott was untruthful, which could not be shown by specific untruthful statements. No effort was made to prove that Abbott had the reputation among his neighbors of being untruthful. [State v. Gesell, 124 Mo. 531, 535; 1 Wharton on Criminal Evidence (10 Ed.), sec. 486.]

II. Another contention of defendant is that the court erred in allowing witness Alexander to testify to threats made by defendant against Walter Abbott a year prior to the commission of the crime of which defendant was convicted. We are not cited to any rule of law which would render this testimony incompetent. A threat of .personal violence made long prior to the alleged assault was not as strong proof of malice as one made on the day of the assault, but it undoubtedly had some probative force as tending to prove ill-will and a consequent motive for making the assault. [State v. Adams, 76 Mo. 355, l. c. 357; State v. Porter, 213 Mo. 43, l. c. 62; State v. Whitsett, 232 Mo. 511, l. c. 528.]

III. The most serious insistence of defendant is that the court erred in giving instruction numbered 5, in which the jury was told that, in determining the weight and credit which should he given to the testimony of defendant and his wife, they might “take into consideration the fact that he is the defendant and that she is his wife, and the interest that they have in the result of the trial.”

This form of instruction has been severely criticized 'by different members of this court in several cases. [State v. Cook, 84 Mo. l. c. 49; State v. Young, 99 Mo. l. c. 676; State v. Barrington, 198 Mo. l. c. 126.] Speaking for myself, I seriously doubt if it was the intention of the Legislature when it enacted section 5242, Revised Statutes 1909, to authorize courts to single out and direct the attention of juries to the evidence of such witnesses as the court may think are personally interested in the result of the trial — it sounds too much like singling out certain evidence for special comment. The instruction does not tell the jury how much discredit is cast upon- the evidence of defendant or his wife by the fact that they are interested in the result of the trial. To my mind the instruction is of little or no value to the State, for it would be a very unsophisticated jury, indeed, which would not intuitively know that the defendant and his wife would be prone to color their evidence in favor of the defense, while a witness possessing no interest would be likely to give a more fair and impartial narrative of the facts. 'A jury need not be treated like a primary class in a public school.

When the law itself has fixed a rule or guide for weighing evidence, it is not error for the court to tell the jury by instruction what that rule is, for the reason that such instruction is in fact the comment of the law, and not the'personal comment of the court. [State v. Creeley, 254 Mo. 382.] It is clear to my mind that this instruction is unnecessary, and whatever is unnecessary should be omitted, as there is always a possibility that it may prove harmful and confusing to the jury by detracting their attention from matters that are essential. [State v. Mix, 15 Mo. 153; State v. Frazier, 137 Mo. 317; State v. West, 157 Mo. l. c. 324; State v. Soper, 207 Mo. 502.]

The interest or animus of any witness may be shown for the purpose of affecting his credibility (State v. Pruett, 144 Mo. 92, l. c. 94; State v. Horton, 247 Mo. 657); and when the testimony of an-interested witness comes into a case, the point may be covered by a general instruction telling the jury that if they find that any witness who has testified in the case is related to the parties, or otherwise interested in the result of the trial, the interest of any such witness may be taken into consideration in determining the weight to be given to his evidence.

The form of the instruction complained of has been approved by a majority of the members of this court many times. [State v. Maguire, 69 Mo. 197; State v. Zorn, 71 Mo. 415; State v. Cooper, 71 Mo. 436; State v. Sanders, 76 Mo. 35; State v. McGinnis, 76 Mo. 326; State v. Cook, 84 Mo. 40; State v. Miller, 93 Mo. 263; State v. Young, 99 Mo. 666; State v. Brown, 104 Mo. 365; State v. Morrison, 104 Mo. 638; State v. Young, 105 Mo. 634; State v. Mounce, 106 Mo. 226; State v. Ihrig, 106 Mo. 267; State v. Noeninger, 108 Mo. 166; State v. Turner, 110 Mo. 196; State v. Wells, 111 Mo. 533; State v. Renfrow, 111 Mo. 589; State v. Maguire, 113 Mo. 670; State v. Pratt, 121 Mo. 566; State v. Taylor, 134 Mo. 109; State v. Bryant, 134 Mo. 246; State v. Napper, 141 Mo. 401; State v. Summar, 143 Mo. 220; State v. Miller, 159 Mo. 113; State v. Adair, 160 Mo. 391; State v. Dilts, 191 Mo. 665; State v. McDonough, 232 Mo. 219.]

Other points are urged by defendant, but we do not consider them of sufficient moment to merit special mention.

The evidence of defendant’s guilt is so overwhelming that we do not think the giving of the instruction complained of, if error at all, was sufficiently prejudicial to work a reversal. He had a fair trial, was represented by able counsel, and the judgment will be affirmed. It is so ordered.'

Walker, P. J., and Faris, J., concur.


author: WALKER, P. J. —

text:
    THE STATE v. GROVER PERRIGIN, Appellant.
    Division Two,
    May 26, 1914.
    1. CARNAL KNOWLEDGE: Information. The offense of carnal knowledge of an unmarried female, of previous chaste character, aged between fourteen and eighteen years, is of statutory origin; and, therefore, an information in the language of the statute, if it sets forth all the constituent facts necessary to constitute the offense, which the statute creating this offense does, will be sufficient.
    2. -: -: Omission of Word “An” Before “Unmarried.” The omission of the article “an” before the word “unmarried” in the clause “did then and there, unlawfully and feloniously have carnal knowledge of unmarried female of previous chaste character,” was not misleading, did not destroy the sense, and is not a valid objection to the information.
    3. -: Validity of Statute: Punishment Fixed by Court. A defendant in a felony ease has no constitutional right to have the jury fix the punishment. Therefore, Sec. 4472, R. S. 1909, prescribing certain punishment for the offense of carnal knowledge of an unmarried female of previous chaste character, “within the discretion of the court,” thereby authorizing the jury to return a general verdict and leaving the fixing of the punishment to the court, is not invalid as in violation of any constitutional right of defendant. [Following State v. Harney, 168 Mo. 167.]

      4. --: Instructions: Subsequent Acts of Unchastity. The defendant, in a prosecution for the offense of carnal knowledge of an unmarried female of previous chaste character, • aged between fourteen and eighteen years, is not entitled to an instruction declaring that acts of said female since her first carnal knowledge by defendant, may be taken into consideration by the jury in determining her previous chaste character. Such an instruction is erroneous, and should not be given.
    5. -: -: Failure to Instruct: Not Made Ground for Motion for New Trial. Failure by the trial court to instruct the jury in writing upon all questions of law arising in the case necessary for their informátion in arriving at their verdict, will not be a good ground for a new trial or for reversing the judgment of conviction, unless such failure be called to the attention of the trial court in the motion for a new trial, though it is not necessary, yet by far the best practice, to save an exception to such failure at the time the instructions are given.
    Appeal from Greene Criminal Court. — Hon. G. H. Bkinker, Judge.
    Affirmed.

      Gideon S West and J. B. Delaney for appellant.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
    (1) The information follows the language of the statute -and sufficiently charges the offense. Sec. 4472, R. S. 1909; State v. Hunter, 171 Mo, 439; State v. McCullough, 171 Mo. 576; State v. Eubanks, 199 Mo. 123; State v. Harney, 168 Mo. 167. (2) The verdict of the jury reads: “We, the jury, find the defendant guilty as charged,” and is in accordance with'the statute. Sec. 4472, R. S. 1909; State v. Harney, 168 Mo. 167; State v. Bishop, 231 Mo. 415. (3) The record does not show that defendant excepted to the action of the court in giving its instructions, therefore, any error in the instructions given are not reviewable. State v, Cantlin, 118 Mo! 100; State y. Hillsback, 132 Mo. 348; State v. Sacre, 141 Mo. 64; State v. Bailey, 190 Mo. 257. (4) Defendant’s refused instruction was rightfully refused, because by that instruction the jury was told that in passing upon the question of the previous chaste character of the prosecutrix they were authorized to consider her conduct and general reputation for virtue and chastity since the date of her first indulgence. State v. Knock, 142 Mo. 526; State v. Day, 188 Mo. 369.
   WALKER, P. J. —

Appellant was charged in an information filed by the prosecuting attorney of Greene county with a violation of section 4472, Revised Statutes 1909, in having carnal knowledge of an unmarried female of previously chaste character, between the ages of fourteen and eighteen years, the appellant being at the time more than sixteen years of age. Upon a trial he was found guilty, the verdict being in the following form: “We- the jury find the defendant guilty as charged.”

After unsuccessful motions for a new trial and in arrest, a judgment was rendered herein under which appellant was sentenced by the couit to two years’ imprisonment in the penitentiary. Prom this judgment he appeals to this court.

Counsel for appellant have not favored us with a brief or any memorandum setting forth the errors assigned other than as is disclosed by the record, which it is our duty to examine.

Appellant is under recognizance pending this appeal.

I. The sufficiency of the information is challenged. Omitting the formal parts, name of the prosecutrix, and the signature of the prosecuting attorney, it is as follows: “that Grover Perrigin, late of the county and State aforesaid, on or about the---day of March, A. D. 1910', at the county of Greene and. State of Missouri, lie, the said Grover Perrigin, being then and there over the age of sixteen years, did then and there unlawfully and feloniously have carnal knowledge of unmarried female of previous chaste character, to-wit:---: — , she the said----being then and there between the ages of fourteen and eighteen years, to-wit, of the age of fifteen years;

“Contrary to the form of the statute in such cases made and provided against the peace and dignity of the State.”

The offense charged is of statutory origin. In charging offenses of this character the language of the statute alone will suffice if it sets forth all of the constituent facts necessary to constitute the offense; if not, then in addition to the language of the statute such constituent facts must be pleaded.. [State v. Maurer, 255 Mo. 152; State v. Hilton, 248 Mo. l. c. 530; State v. Gabriel, 88 Mo. 631.]

In the instant case all of the necessary elements of the offense are set forth in the statute, and hence the information which embodies its language is not subject to valid objection. The use of the words in the information: “have carnal knowledge of unmarried female,” instead of “of cm unmarried female” is simply an omission of the word “an,” not in any manner misleading, which did not destroy the sense and is too trifling to merit serious consideration.

Precedents in support of the sufficiency of this information, varying only in minor and unimportant particulars', may be found in the following cases: State v. Hunter, 171 Mo. l. c. 439; State v. McCullough, 171 Mo. 571; State v. Hall, 164 Mo. 528; State v. Knock, 142 Mo. 515.

II. The statute (Sec. 4472, supra) upon which this prosecution is based prescribes certain punishment for the offense charged, “in the discretion 0f tbe court;” this authorizes the jury to return a general verdict and leaves the fixing of the punishment to the court. Appellant complains of this statute as a violation of his constitutional rights, in that he is entitled, within the limits prescribed, to have the jury fix his punishment. This statute was learnedly reviewed by Gantt, J., in State v. Hamey, 168 Mo. 167, in which it was held that no constitutional right of a defendant was violated in authorizing either the court or the jury to fix the punishment in a felony case. That the constitutional provisions guaranteeing an accused “a speedy, public trial by an impartial jury of the county” (Art. 2, sec. 22), and that “the right of trial by jury, as heretofore enjoyed, shall remain inviolate” (Art. 2, see. 28) meant, as at common law, a jury of twelve men, indifferent between the accused and the State, summoned from the vicinage where the crime was alleged to have been committed, left free to act according to the dictates of their own judgment, and unanimous in their verdict. That if these requisites are found to be present, the accused has no ground of complaint, because, under the common law, the court fixed the punishment, and there being nothing in the Constitution requiring the jury to fix the same, a statute which confers this power on the court violates no substantial right. We so hold.

III. Appellant complains of the instructions. Trial courts are required in criminal cases, whether requested or not, to instruct juries in upon all questions of law arising in cases necessary for their information in giving their verdicts, and a failure so to instruct in cases of felony shall be good cause, when a defendant is found guilty, for setting aside the verdict and granting a new trial. [Sec. 5231, R. S. 1909; State v. Conway, 241 Mo. 271.] However, to enable tbe appellate court to review the instructions, it is necessary that they be properly incorporated in the bill of exceptions. While it is the better practice to except at the time to the failure of the trial court to give the necessary instructions in a felony case, and preserve such exceptions in the motion for a new trial, it is held in State v. Conway, supra, in construing said section 5231, that such failure shall be good cause for a new trial without request or exception by the defendant at the time. This does not mean that the alleged error in failing to properly instruct should not be called to the trial court’s attention in the motion for a new trial, not only for the reasons stated in the Conway case, supra (p. 291), but for the further reason that unless the trial court’s failure to properly instruct is made a ground for the motion for a new trial, it is not a matter of exception and cannot be considered by the conrt.

In the case at bar, the motion for a new trial is silent as to the instructions except instruction numbered 2 given by the court. ■ This is a general formal instruction defining the offense and the essentials necessary, under the statute, to authorize the finding of a general verdict of guilty, and properly stated. There is no substantial ground of objection to the instruction.

Appellant complains of the refusal by the court of two instructions requested by him. One of these is completely covered by the instructions given, and the other was erroneous in declaring that acts of the prosecutrix, since her-, first carnal knowledge by defendant, might be taken into consideration by the jury in determining her previous chaste character.

This appeal is wholly without merit. The judgment of the trial court should, therefore, be affirmed, and it is so ordered.

Brown and Far is, JJ., concur.


author: BROWN, J.- —

text:
    THE STATE v. FEATHERSTONE POWELL, Appellant.
    Division Two,
    May 26, 1914.
    1. CONFESSION: Involuntary: Dependent Upon Person. What is necessary to render a written confession involuntary, depends, to a large extent, upon the person from whom such confession is obtained. The age, sex, disposition and past experience of the confessor must necessarily be considered.
    2. -: -: -: Hireling. A colored man twenty-four years of age, who had made his living by honest work up to the time of his arrest' (for seven years as a janitor at a freight depot), but had never worked for himself, and had never been arrested upon any charge, or suspected of any crime except the violation of the prohibition laws, would scarcely be expected to possess strong enough will-power to resist indefinitely the accusations and interrogations of expert detectives.
    3. -: -: Long Interrogation: Mental Torture. If a man be accused, interrogated and browbeaten by officers having him in charge until his will is overcome by mental torture, his confession, thus obtained, is no less involuntary than one obtained by physical punishment.
    4. -: -: Promise That Confession Will Help. The effect that the words “it will help you to tell the truth” would have on the mind of one suspected of being an accessory to a recent murder, would depend somewhat upon the stress or emphasis placed upon them by the captain of police uttering them; but when they were frequently repeated to the accused, through the several hours in which an attempt was persistently made to extort a confession from him, the natural effect of such words upon the mind of a negro twenty-four years of age who had never been previously arrested and who had for seven years -been a janitor about a freight depot, and under the other circumstances of this case, would be to lead him to believe he would secure at least a partial relief from the charge, by making the confession.
    a -: -: -: Overcoloring Element of Fairness: .Suspicious. The addition of a clause to the confession, in the words, "I make this statement of my. own free will, without any threats or promises being made and knowing that it will be used against me if I am prosecuted,” in spite of the fact that the captain of police to whom the confession was made testified that he repeatedly told defendant “it will help you to tell the truth,” of itself looks suspicious; for it is highly improbable that such a clause would have been added if some hope had not been directly or indirectly held out to defendant that he would not be prosecuted.
    6. -: -: Testimony Impeaching Confession: Admissible. Testimony tending to prove that parts of defendant’s 'confession were not true, offered by him for the purpose of impeaching and discrediting said confession, is competent. Where the confession stated that defendant’s brother was one of the active participants in the robbery, and immediately preceding its attempt in which the murder was committed requested defendant to come to the home of his mother and receive a portion of the . proceeds of the robbery, testimony that said brother was not present and could not have taken part in the crime, and that said confession was to that extent untrue, was competent, not only for the purpose of showing the absence of motive on defendant’s part and that he did not participate in the crime, but also for the purpose of showing said confession was not voluntarily made.
    7. -: -: -: As Showing Confession Was Involuntary. If defendant did not, wish to incriminate his brother in the robbery and in the murder which grew out of it, as testified to by the officers who extorted the confession from him, and yet by his confession did involve him in that crime as an active participant, testimony that said brother was not present at the robbery would be positive evidence that the confession was not involuntary.
    Appeal from Jackson Criminal Court. — Hon. Ralph Latshaw, Judge.
    Reversed and remanded.

      Griffin é Orr and Horace S. Kimbrell for appellant.
    (1) Considering the fact that defendant was a colored man, twenty-three years old, his mental qualifications, his surroundings, and the fact that nine police officers were “sweating” him for nearly twelve hours, the court erred in admitting the purported confession in evidence, especially after it appeared that the police officers had told defendant that “it would be best for him to tell the truth,” and “it would help him to tell the truth.” State v. Brockman, 46 Mo. 566; Under-hill on Criminal Evidence, sec. 128; Wharton on Criminal Evidence, p. 1328; State v. Fredericks, 85 Mo. 145 ,- 12 Cyc. 464. (2) The court erred in excluding the testimony of witnesses Halsey Powell, White, Ousler and Gaskill. State v. McKenzie, 144 Mo. 40; State v. Blodgett, 92 Pac. (Ore.) 820; Janes v. People, 99 Pac. (Colo.) 325; Young v. State, 68 Ala. 569; Commonwealth v. Howe, 9 Gray (Mass.), 110; Commonwealth v. Howe, 2 Allen (Mass.), 153; People v. Fox, 50 Hun. 604, 3 N. Y. Supp. 359; Wharton on Criminal Evidence, p. 1299 ; 3 Ency. Evd., 353; 12 Cyc. 484.

      John T. Barker, Attorney-General, and William M. Fitch, Assistant Attorney-General, for the State.
    (1) Confessions will be incompetent if inducements are held out by some officer or person in authority having defendant in custody, or by one who then ■has the defendant in actual custody. State v. Hop-kirk, 84 Mo. 278; State v. Jones, 171 Mo. 401; State v. Hunter, 181 Mo. 316; State v. Hagan, 54 Alo. 192; State v. Jones, 54 Mo. 478. (2) A statement to the accused by the person having him in charge to the effect that it will be better for him to tell the truth about the matter, will not annul the confession. Hawkins v. State, 7 Mo. 190; State v. Patterson, 73 Mo. 695; State v. White, 17 Kan. 487; State v. Kornstett, 62 Kan. 221; State v. Anderson, 96 Mo. 241. (3) The fact that the defendant is in charge of an officer is no objection to a confession, if no threats were made and no promises were given defendant. State v. Wooley, 215 Mo. 683; State v. Simon, 50 Mo. 370; State v. Car-lisle, 57 Mo. 102; State v. Shackleford, 148 Mo. 493; State v. Vaughn, 152 Mo. 73; State v. Barrington, 198 Mo. 23; State v. Armstrong, 203 Mo. 554; State v. Stebbins, 188 Mo. 387; State v. Cbnrcb, 199 Mo. 605; State v. Brooks-, 220 Mo. 74; State v. Wilson, 223 Mo. 173; State v. Green, 229 Mo. 642. '(4) Confessions, elicited by questions put to the prisoner by an officer or by a private person, are admissible in evidence against the prisoner. State v. Stebbins, 188 Mo. 387; State v. Barrington, 198 Mo. 23; Com. v. Curtis, 97 Mass. 578. Such is tbe English rule: Rex v. Unchurch, 1 Moody, C. C. 465; Rex v. Wild, 1 Moody, C. C. 452; Rex v. Thornton, 1 Moody, C. C. 27. It is no objection that the confession is made in response to questions which assume the guilt of the defendant. State v. Barrington, 198 Mo. 23; Rex v. Thornton, 1 Moody, C. C. 27. (5) In the absence of actual promises or threats, mere threatening circumstances will not exclude the confession. State v. Armstrong, 167 Mo. 257; Rice v. State, 47 Ala. 38; State v. Ingram, 16 Kan. 14. (6) If promises or threats are made by or in the presence of one in authority or having control over the prisoner, and were such as might influence him, it is presumed that the confession afterwards made was induced by such threats or promises, unless it shall appear that their influence was totally done away with before the confession was made. State v. Jones, 54 Mo. 478; State v. Jones, 171 M.o. 401; State v. Guild, 10 N. J. L. 163-. (7) Confessions secured by the following statements are held inadmissible, as against the defendant making them, viz.: “It will be better for you to confess,” or “worse if you do not confess.” Couley v. State, 12 Mo. 462; State v. Freeman, 12 Ind. 100. “Tell me where the things are, and I will be favorable to you. ’ ’ Rex v. Hearn, Carrington & Marsh, 109: “You had better tell me all you know.’’ Rex v. Kingston, 4 Carrington & Payne, 387. ‘‘I should be obliged to you if you could tell us all you know about it; if you will not, of course we can do nothing.” Rex v. Partridge, 7 Carrington & Payne, 551. “Anything you can say in your -defense, we shall he ready to hear.” Eex v. Morton, 2 Moody & Eob. 514. (8) Statements have been held to be competent as against the person making same, (a) even though he was not warned that they would be so used. State v. Church, 199 Mo. '605; Eex v. Eichards, 5 Char. & Payne, 318. (b) Even though they were secured by artifice. State v. Phelps, 74 Mo. 128; State v. Brooks, 92 Mo. 542. (c) . And where such statements are secured by representing to him that his accomplices are in custody, or that they have divulged the crime, and yet the statements be competent as against the defendant making them. State v. Jones, 54 Mo. 478; State v. Phelps, 74 Mo. 128. (9) If threats or promises, however slight, are used to induce the confession, then the confession cannot be used against the defendant making same. State v. Brooks, 220 Mo. 74. (10) The presumption is that confessions have been freely made until the contrary appears. State v. Armstrong, 203 Mo. 559; State v. Meyers, 99 Mo. 119; People v. Barker, 60 Mich. 295; Com. v. Culver, 126 Mass. 464; 1 Chitty’s Crim. Law, 571; Eoseoe’s Crim. Ev., 43; 3 Eice, Crim. Ev., sec. 309.
   BROWN, J.- —

Defendant was convicted of murder in the first degree, and appeals from a judgment fixing his punishment at imprisonment for life.

The evidence on the part of the State tends to prove a conspiracy between defendant and three or more other negroes to rob the Missouri Pacific freight office at Kansas City, Missouri, on December 1,1911. In robbing that office one Albert Underwood, a cashier therein, was murdered. The evidence further tends to prove that Underwood was killed by one Arthur Brown, and that while defendant was not present he was in or near the building where the tragedy occurred, and. that he aided and abetted Arthur Brown in the commission of said crime.

At the trial a signed confession of defendant Powell was admitted over Ms objections, to wMcli ruling- exceptions were duly saved. The admission of tMs alleged confession, and the refusal of the trial court to permit the defendant to impeach the same by proving that parts of it were untrue, constitute the alleged errors upon which the defendant relies for reversal.

The written confession of defendant introduced in evidence reads as follows:

Statement taken in the office of Captain E. B. Stone, commanding. State of Missouri, County of Jackson, ss.
Featherstone Powell, of lawful age, being first duly sworn, upon his oath deposeth and says:
I am twenty-four years old." I was born in Jackson, Tennessee. X live at seven hundred and twenty-six New Jersey Avenue, Kansas City, Kansas. I work at the Missouri Pacific Railway Company in their freight office, as janitor. Thursday, November 30th, as I was passing State line on my way home I met Arthur Brown and Duke at the State line. They wanted to know where I was going and I said I was on my way home. They wanted to know what chance to hold up cashier’s department ait Missouri Pacific freight house. I told them that they had better know what they were doing, cause it would make it hard on me, as I am janitor in the building and have been there for the last seven years. After this conversation I went home.
The next time I saw Arthur Brown and this man Duke was on Friday afternoon. They were up in the Missouri Pacific local office December 1st, about 5:40 p. m. I was standing in the front of the toilet room door when Arthur Brown came to me and said we are going to pull that job off now that we were talking about the other day. Arthur Brown and Duke had a revolver apiece. Shortly after, Halsey Powell, my brother, came back to the toilet room and when he got to us Arthur Brown and this man Duke says they were going to pull off that job to-night and Halsey said that if you go by mother’s tonight, I will give you some of the money. These three men went downstairs immediately after that. Before leaving me to go downstairs they told me to get down in front and as I knew the special agents of the Missouri Pacific I was to watch for them and if I saw any of them coming I was immediately to give the signal. I then took. a bucket and" broom from the offiefe and came downstairs and went out on the sidewalk at the southeast corner of the building. I taken up my position there to watch for Missouri PacifiB special agents just outside of the front door of the office. My brother, Halsey Powell, and my- brother, Cottrel Powell, were both standing at this door. Immediately inside of the office door were the following men known to me as Ossie Brown, Arthur Brown, and the man they called Duke. I was directly outside with the bucket and broom and when I saw everything was clear I told them all right, and then they entered the cashier’s department and shortly afterwards I heard a pistol shot, and immediately after the shot was fired Ossie Brown and Halsey and Cottrel came running out of the front door and I went in the hall. I don’t know how Arthur Brown or this man Duke left the office. I then went into the freight house and Albert Underwood was lying inside the freight house on the floor and some of the boys picked him up and lays him in. the back room in the cashier’s office on the table. Last night when the officers asked me if knew who the parties were that pulled off that job I would not tell them. I did not want them to know that my brothers, Halsey or Cottrel or myself had anything to do with it. I make this statement of my own free will, without any threats or promises being made and knowing that it will be used against me, if I am prosecuted.
Featherstone Powell.
Witnesses: S. W. Zickafoose, Edward B. Stone, W. H. Boullt, Jas. J. Raftery, C. M. Phillips, J. D. Greenlee.
I make this statement in the presence of Capt. E. B. Stone, Chief of Detectives S. W. Zickafoose, Detectives J. J. Raftery, J. D. Greenlee, W. H. Boullt, Special Agent Missouri Pacific, and C. M. Phillips, Special' Officer Missouri Pacific.
Featherstone Powell.
Subscribed and sworn to before me, a Notary Public, within and for the above state and county this 4 day of December, 1911.
(Seal) Guy C. Cooley,
Notary Public.
My commission expires 2/13/12.
Witnesses: S. W. Zickafoose, Edward B. Stone, W. H. Boullt, Jas. J. Raftery, C. M. Phillips, J. D. Greenlee.

Tlie evidence of three witnesses who were in the freight office when the robbery and murder occurred tends to corroborate the defendant’s written confession, except that defendant’s confession recites that there were five men in the fréight office participating in the robbery, while the witnesses for the State saw only three. No one saw defendant at the time of the robbery and murder. He testifies that he was on the second floor of the building at that time, while his confession recites that he was out in front of the building. As the cause must be reversed because of the admission of improper evidence and the exclusion of proper evidence, a more detailed statement of the facts is unnecessary.

Defendant is a colored man twenty-four years old, and for some years prior to the commission of the crime of which he was convicted was a janitor in the freight office of the Missouri Pacific Railway Company, located on the first floor of a building in Kansas City, Missouri. He was arrested and locked up the day following the robbery, and on the second day was taken to the office of Edward B. Stone, Captain of Police, and questioned by Captain Stone and eight other police officers and detectives regarding his knowledge of and complicity in the robbery and murder.

"With one exception the witnesses agree that the interrogation of defendant begun about two p. ■ m. Sunday afternoon and continued until eleven p. m. that night with very slight intermissions. Defendant was interrogated alternately by the nine officers and detectives, and at eleven p. m. consented to confess. His confession, written on a type-writer, .was completed and signed between twelve and one a. m. that night.

When offered in evidence this confession was objected to on the ground that it ^was not voluntarily made, but was the result of intimidation; that it was obtained by placing defendant in. such a protracted mental strain as to overcome his will, and by promises made by Captain Stone that it would help him to confess. Defendant, testifying in regard to the confession, states that he was not only accused and questioned for a long time, but was struck on the head and kicked on his private parts by the officers before he consented to make a statement. That the officers told him it would be lighter on him if he confessed. He further testified that two confessions were written at the instance of the officers, and when he signed the first confession he wrote the words “not guilty” following his name; that officer Stone tore up that confession and threw it into a brass cuspidor, and then they obtained the final confession, which was introduced in evidence.

The testimony on the part of the officers who secured the confession is that the defendant was not subjected to any personal abuse or mistreatment. The salient parts of their evidence is as follows:

Special Agent Boullt testified that defendant was .very nervous and excited and wanted to shield himself and his brothers; that it did not require all the time the officers were present to persuade him to make the confession; that they remained with him waiting for another party to be brought in who was accused of the same crime.

S. W. Zickafoose, Chief of Detectives, who was present and participated in securing the confession, stated that defendant did not seem to be excited. That defendant was reluctant to make a statement because he wanted to shield his brothers who were implicated in the crime — that he repeatedly told defendant “that it would be best for him to tell the truth, that he knew all about it.”

Captain Stone, in whose office the confession was obtained, stated that defendant first denied that he knew anything about the robbery; that the officers did not know who had committed said crime until defendant made his confession. That they questioned defendant five or six hours regarding other parties who took part in the robbery, and just before eleven p. m., they questioned him between thirty minutes and an hour regarding his part in the crime, and then he agreed to make the confession. A typewriter was procured, and the statement was completed and signed about one o’clock next morning. Witness Stone stated that he dictated the first two or three lines of the confession, and the defendant dictated the balance, and it was sworn to the next morning. Captain Stone, upon cross-examination, further stated that he had to draw the confession from defendant piece by piece; that he questioned him at length and severely about other parties implicated in the crime. Asked if he had to “worm” the confession out of defendant, witness Stone replied: “I had to work hard.” Asked whether he told defendant that it would help- him to tell the truth, Captain Stone replied that he did so several times. He also stated that defendant did not seem to he nervous, but that ‘ he appeared to be tired- and worn out from the strain. ’ ’

It will he observed that the written confession implicates defendant’s brothers, Halsey and Cottrell Powell, as participating in the robbery and murder committed at the Missouri Pacific freight office. According to that confession Halsey Powell was present and told defendant just before the robbery to come over to his mother’s house that night and get some of the money (which they were going to secure by the robbery). At the trial defendant attempted to prove by said Halsey Powell, and by three white employees of the Union Pacific Railroad Company, that said Halsey Powell was a mile and a quarter distant from the scene of the robbery and murder just one minute before those crimes were committed, delivering some way-bills to the yardmaster and other employees of said Union Pacific Railroad Company, and, therefore, could not have been present at the commission of the crime as recited in defendant’s confession. Upon objection by the State this proffered evidence was excluded, to which ruling defendant duly saved his exceptions.

I. We will first consider the admissibility of the written confession. What is necesasry to render a confession involuntary depends, to a large extent, upon the person from whom such confession is obtained. The age, sex, disposition and past experience of the party must necessarily be considered. [2 Wharton’s Criminal Evidence (10 Ed.), p. 1320; 12 Cyc. 464; State v. Brockman, 46 Mo. 566.]

In this case the testimony of defendant that he was struck and kicked seems to be completely overcome by the evidence of the officers that he was not physically abused. We will, therefore, consider the confession from the standpoint of the evidence of the officers, and such other facts as are not in dispute.

The defendant is a young colored man twenty-four years old, who had, apparently, made his living by honest work up to the time of his arrest. There was some evidence that he had been suspected of violating the prohibition laws of the State of Kansas, where he resided, but he had never been arrested upon any charge. He had never worked for himself. Such a man would hardly be expected to possess strong enough will-power to resist indefinitely the accusations and interrogations of expert detectives. The testimony of two of these officers is that defendant was reluctant about making a statement because he wanted to shield himself and his brothers, yet his confession does incriminate not only himself but two of his brothers, Halsey and Cottrell Powell. This evidence is some indication that the confession was> obtained by a compulsion or through some promise of leniency. The fact that defendant was kept up to a very late hour of the night and vigorously interrogated, and that he appeared to be “tired and worn out from the strain,” are circumstances tending to cast discredit on the confession ; for if a man be accused, interrogated and browbeaten by those having him in custody until his will is overcome by mental torture, his confession thus obtained is no less involuntary than when obtained by physical punishment. When we add to the facts last recited the evidence of Captain Stone that he repeatedly told defendant that it would “help him to tell the truth, ’ ’ 'we are led to believe that the confession was -not made willingly.

Of course the effect which the words “it will help you to tell the truth” would have upon the mind of one placed in the position in which defendant stood, would depend somewhat upon the stress or emphasis placed upon those words of Captain Stone, but when all the circumstances are considered we think that the natural effect of such words would be to lead this defendant to believe that he would secure at least partial relief from the charge, by making a confession.

The last paragraph of the confession, to-wit, “I make this statement of my own free will, without any threats or promises being made and knowing that it will be used against me if I am prosecuted,” looks rather suspicious. It is highly improbable that such a clause would have been inserted if some hope had not been directly or indirectly held out to defendant that he would not be prosecuted.

The officers testified that defendant dictated all of the confession, except the first two or. three lines thereof, but this concluding paragraph is so unusual and so unlike the other language used by defendant in giving his testimony, I am impressed with the idea that it was suggested'by some of the officers in an effort to have the defendant brand as voluntary a confession which is not entitled to be so regarded.

The testimony of the officers was by no means harmonious. Captain Stone states that defendant was not excited but ‘ ‘ seemed to be tired and worn out from the strain,” while Special Agent Boullt says that defendant was very nervous and excited. Witness Boullt further testified that defendant agreed to make a confession long before eleven p. in., but this is at variance with the evidence of the other officers. Perhaps their memories were a little confused as to just what did occur on that occasion.

It is not necessary to discuss the matter- at greater length. We are convinced that the written confession was not voluntarily made, and should, therefore, have been excluded by the court. [State v. Thomas, 250 Mo. 189, l. c. 211, and authorities there cited.]

II. Regarding the exclusion of the evidence tending to prove that parts of the confession were untrue, offered by defendant for the purpose of impeaching or throwing discredit upon gai<j confession, we have not found, nor has the Attorney-General cited ns to, any law which sustains the ruling of the trial court.

In the case of Jaynes v. People, 44 Colo. 535, the authorities on this point are collated and reviewed at length; and in that case it was expressly held that a confession reciting that defendant procured poison at a certain establishment with which he feloniously poisoned a horse, might be impeached by proof that the establishment where defendant claimed to have obtained the poison never kept or sold the same.

The case of People v. Fox, 3 N. Y. Supp. 359, was very much like the one at bar. In that case the defendant made an affidavit that he and four other parties committed a robbery, and when this affidavit was introduced against him he offered to impeach the same by evidence.that the four other men named in the affidavit did. not participate in the crime. In holding that this evidence was competent and should have been admitted, the Supreme Court of New York said:

“Now, it is quite correct to say that the confession may be false in every other particular, and yet it may be true that defendant participated in the robbery. But the question here is whether the defendant may not give evidence tending to disprove an alleged fact, of which the people have given proof against him. Certainly, when one side gives evidence tending to prove a fact, the other side may give evidence to the contrary. The people had given evidence tending to show that these five persons, together, had committed the alleged crime. Could not the defendant show that four of them were not there, and did not commit it, especially since the crime could not have been committed by one alone? If the defendant had made a confession that he alone went to Plank’s, and tied him and his boy, and robbed the house, such a confession, under the other testimony, would have received no credit. But he makes a confession of a transaction not improbable on its face. And evidence is offered tending to show that statements in that confession, are not true; and these are such statements, furthermore, that, if they are not true, then the truth of the confession becomes doubtful.”

This decision was affirmed by the N. T. Court of Appeals, 121 N. Y. 449.

A similar result was reached by the Supreme Court of Pennsylvania in dealing with the same kind of an issue in Commonwealth v. Shaffer, 178 Pa. St. 409, l. c. 415.

The exclusion of evidence tending to prove that Plalsey Powell was not1 at the Missouri Pacific freight office when the robbery and murder were committed, and, therefore, could not have participated therein, was very prejudicial to defendant. Defendant not only confessed that Halsey Powell was present as one of the active participants in that robbery, but that said Halsey Powell had, on that very occasion, requested defendant to come to the home of his mother and receive part of the proceeds of the robbery. This part of the confession was about the only evidence of motive on the part of defendant. Therefore, proof that Halsey Powell was not present and could not have taken part in the crime would have tended to rebut the evidence of motive on the part of defendant, and would also have directly tended to prove that the confession was not voluntarily made; for if defendant did not want to incriminate his brother Halsey (as stated by the officers), and yet did incriminate him, when the latter was not guilty, this would furnish the highest hind of proof that the confession was not only involuntary, but also unworthy of belief.

For the error of the trial court in admitting the written confession of defendant, and in excluding evidence tending to impeach said confession after it was admitted, its judgment will be reversed and the cause remanded for a new trial. It is so ordered.

Walker, P. J., concurs; Paris, J., not sitting.