author: FARIS, J. —

text:
    THE STATE v. EDWARD ARNETT, Appellant.
    Division Two,
    May 26, 1914.
    1. EXHIBITING DEADLY WEAPON: Sufficient Evidence. Testimony for the State that defendant, in the presence of the persons named in the indictment, exhibited in a rude, angry and threatening manner, a pistol which he found lying on the dresser in the house in which he was visiting, that he struck the prosecuting witness over the head with this pistol five or six times, and that in the difficulty the pistol was discharged and said witness was shot therewith through the shoulder, is sufficient to sustain a verdict finding defendant guilty of exhibiting a revolver in a rude, angry and threatening manner, in the presence of others.
    2. -: Right to Self-Defense. In the prosecution of a private citizen for exhibiting a deadly weapon, in a rude, angry and threatening manner, in the presence of others, if there is substantial evidence of self-defense in the case, even though such evidence should come from the defendant alone, the defendant is entitled to an instruction upon the theory of self-defense. The proviso to Sec. 4496, R. S. 1909, does not contain all the excuses and defenses to which one charged with a violation of the offense of exhibiting a dangerous and deadly weapon is entitled.
    3. -: -: This Case. Defendant testified that he was in the house of questionable character about two o’clock at night; that while sitting in the back parlor thereof, the prosecuting witness, another visitor, came in, and began to make threats in a general way and to express his desire to “burst a gun over somebody’s head;” that upon seeing defendant, the said witness requested a companion to assist him in putting defendant out of the house; that he (defendant) thereupon remarked that he had better leave, and got up and moved towards the door; that said witness then began to curse him, and he saw a knife in his hand; that he (defendant) then left the back parlor and went into the dining room, where, at its back end, he saw, upon looking around, the pistol he is charged with having exhibited, lying on a .dresser; that he took the pistol in his hand and stepped into the hall just as the prosecuting witness came out of the dining room; that said witness made a motion at him with a knife, cutting him upon the hand, and that he then hit him with the pistol, which exploded accidentally.- Another witness testified that after the altercation he found a knife sticking in the floor of the hall near the point where the prosecuting witness stood. Held, that defendant, charged with exhibiting a deadly weapon in a rude, angry and threatening manner, etc., was entitled to an instruction on the theory of self-defense.
    Appeal from St. Louis City Circuit Court. — Now. James E. Withrow, Judge.
    Reversed and remanded-.

      John A. Gerneg for appellant.
    The defendant specifically asked for an instruction on the doctrine of self-defense. This was in full accordance with the theory upon which the case was tried, namely, that if the evidence did tend to show that defendant had exhibited a dangerous weapon, in a rude, angry and threatening manner, he did so under a fear of immediate and imminent danger to himself from the prosecuting witness, who (as the evidence showed) had an open knife in his hand and with which he was cutting at defendant. The court in refusing the requested instruction seems to be of the opinion that under this particular charge, defendant, no matter how grave his danger, cannot plead that his act was done in the defense of his life and person.' It is certainly anomalous that were the charge murder or assault, then the instruction would he proper. Such ruling is neither logical nor founded upon sound judicial discretion. It is quite to the contrary. It denies to men a native, inherent and natural right — the self-protection of his own life. It is in direct conflict with section 17, article 2, of the State Constitution, which guarantees the right of a citizen to bear arms in defense of his person, and this constitutional right would he valueless were he not also permitted to display and use the same arms when pressed. It does not justify the carrying of concealed weapons; indeed, strictly forbids it, but it expressly recognizes the natural right of a person to defend himself when assaulted and, if necessary, even to slay his 'opponent. Counsel has seen no reason to quote case law authority for the assertions he has made above. There can be no necessity for it. The principles involved are too simple and elementary to require the support of legal adjudications.

      John T. Barker, Attorney-General, and Ernest A. Oreen, Assistant Attorney-General, for the State.
    Defendant asked an instruction upon the subject of self-defense which the trial court refused. This contention of appellant presents a new question under the present statute, which does not expressly except the exhibition -of such a weapon in necessary self-defense, as is the ease in other states having similar statutes. Consequently, the statute' under which defendant was convicted is one to which the language of the Supreme Court of Tennessee in the case of Day v. State, 5 Sneed (Term.), 496, would seem very applicable. In that case Cartjthebs, J., speaking for that court said: “We can come to no other conclusion in view of all the provisions of this statute, but that it was the fixed purpose of the Legislature to prohibit the use of this particular weapon for any purpose; it is not to be sold, given away, kept about the person, used or attempted to be drawn or used, not even upon a ‘sudden rencounter.’ The light of self-defense is not denied, but this particular instrument is prohibited in the exercise of that right, if it be drawn from any place of concealment about the person. If the knife be thus drawn with malice for the purpose of ‘awing or intimidating any person,’ the offense is complete. That is the language and spirit of the act, as we think, and the charge does not go beyond it. If men wish to escape these severe consequences, let them discontinue the use of these most dangerous and bloody weapons. The Legislature has prescribed them, and men must disobey at their peril. This construction is inevitable upon both the letter and spirit of the act, and if it invades the right of self-defense the fault is not ours. The Legislature •thought the evil great, and to effectually remove it, made the remedy strong. We approve their policy and maintain the act in all its vigor. ’ ’ Furthermore, in this particular case there is no evidence of self-defense on the part of the defendant, and consequently he could not complain of the trial court’s refusal of an instruction on that subject.
   FARIS, J. —

Defendant was tried in the circuit court of the city of St. Louis upon an indictment containing two counts, the first of which charged him with carrying a concealed weapon, to-wit, a revolver, and the second thereof with having exhibited such weapon in a rude, angry and threatening manner, in the presence of divers persons named in the indictment. Being put upon his trial the court nisi, at the conclusion of all the evidence, instructed the jury to find the defendant not guilty on the first count in the indictment, but sent the case to the jury upon the second count. The jury found the defendant guilty thereon and assessed his punishment at a fine of $500 and imprisonment in the city jail for a period of sixty days. From this conviction the defendant, after the nsnal motions, has appealed.

Since the contention which defendant most strenuously urges upon us is based upon the failure of the court to instruct the jury on self-defense, and since such an instruction, if it was necessary in this case, must arise upon both the law and the facts, it becomes necessary to briefly state- these facts.

The persons in whose presence defendant is charged in the indictment with having exhibited the weapon, are Theodore B. Meyers, Ed. Jones, Rosie Cummings and Sarah Porter. The exhibition of the weapon took place at the house of the said Rosie Cummings, 2927 Lucas avenue, St. Louis. The facts upon which the defendant bases his contention that the court should have instructed upon self-defense come for the most part from the defendant himself, but there aré to he found in the testimony other statements from other and apparently disinterested • witnesses which tend to corroborate the defendant’s theory of self-defense.

Defendant testified that he was at the Cummings woman’s house on the morning of January 1, 1913, between half past one and two o ’clock; that while sitting in the back parlor thereof the prosecuting witness, Theodore B. Meyers, started to come into the room where defendant and others of his party were; that at the same time Meyers was making threats in a general way and expressing his desire to “burst a gun over somebody’s head;” that upon seeing defendant in the room Meyers requested a companion, one Chambliss, to assist him in putting defendant out of the house; that thereupon defendant remarked that he (defendant) had better leave, and got up and moved toward the door; that Meyers then began cursing him and he saw a knife in Meyers’s hand. Defendant then left the back parlor and went into the back end of the dining room, where, upon looking around, he saw the pistol which he is charged with exhibiting, lying upon the dresser. He took the pistol in his hand and stepped toward the door which led into the hall just as Meyers, the prosecuting witness, came out of the dining room. Meyers made a motion at him (defendant) with a knife, cutting him upon the hand, and defendant then hit Meyers with the pistol, which exploded accidentally, defendant says. Other testimony in the case from other witnesses is to the effect that after the altercation a knife was found in this hall somewhere in the neighborhood of the place where the scuffle occurred, by one Smith, a witness for defendant, who gave the knife to Police Sergeant Kirk, who was also a witness for defendant. The testimony of the witness Smith, who says that he found the knife in the hall, sticking in the floor near where Meyers stood, slightly corroborates the testimony of defendant himself and aids him somewhat on the question of whether there was or was not testimony justifying an instruction on self-defense.

Upon the trial defendant requested the court to give an instruction submitting the theory of justification on the ground of self-defense and actually prepared and submitted to the court such an instruction. This instruction the court refused to give and likewise refused to give any instruction whatever on self-defense. The court, as was stated in the beginning, took away from the jury the count which charged defendant with carrying the weapon concealed, on the ground that there was no sufficient testimony offered to convict him on that count.

The testimony for the State conclusively showed that defendant not only exhibited this pistol in a rude, angry and threatening manner in the presence of the persons named in the indictment, but that he struck the prosecuting witness over the head with this pistol five or six times; that in the difficulty the pistol was discharged and the prosecuting witness was shot therewith through the shoulder, and was so badly injured that it became necesary to take him to the hospital where he remained for some six days.

‘ The facts above stated are deemed sufficient to make clear the questions discussed in the subjoined opinion.

I. The defendant assigns as error among other things, that the verdict was hot warranted by the evidence. Since this case, for the reasons hereafter to be developed, must be reversed and remanded for a new trial, it is not necessary at this time to go very carefully into this assignment of error. ■ Suffice it to say, however, that in our view the evidence, while conflicting, was, if the jury believed it, as they evidently did, sufficient to warrant the verdict which the jury reached upon the second count of the indictment.

Other contentions made, such as that the court erred in admitting incompetent, irrelevant and improper testimony on the part of the State, and that the court permitted counsel for the State to engage in improper and unfair argument in his closing speech to the jury, we need not here consider, since it is not probable that these things will occur again.

II. This brings ns to the chief point in the case and the one most strenuously and insistently urged upon us by learned counsel. This question is, should the court have given an instruction for self-defense under the facts shown upon the record, which facts, in order to illustrate the point involved, we have briefly detailed in the statement. As a conceded major premise we may admit that this court .has uniformly held that where there is substantial evidence of self-defense in a ease the defendant is entitled to an instruction upon that theory, even though such evidence should come from the defendant himself alone. [State v. Weinhardt, 253 Mo. 629; State v. Bidstrup, 237 Mo. 273; State v. Richardson, 194 Mo. l. c. 344.] Here there is in the record some considerable corroboration for the theory of self-defense as it is presented by defendant’s testimony. If this had been a prosecution for any homicide or for an assault with intent to kill, there is no manner of doubt that under the well ruled adjudications and under the well settled law of this State the defendant would have been, under the facts and evidence, entitled to an instruction on the ground of self-defense. [State v. Fredericks, 136 Mo. 51; State v. McKinzie, 102 Mo. 620; State v. Porter, 213 Mo. 43.] In our view the evidence offered by defendant to substantiate his theory of self-defense, was, other things being equal, entirely sufficient to go to the jury for that purpose, if we find such a defense permissible in this sort of case. The question, however, arises (and this we infer is the view the learned trial court took of this case), whether such an instruction is ever warranted in a prosecution such as this is, or in any prosecution for any of the offenses denouncing the carrying or exhibiting of dangerous and deadly weapons. In other words, has the Legislature written into section 4496, in the proviso therein, every defense and every excuse which the Legislature intended should justify one charged with a violation of any of the divers offenses therein denounced?

A reference to this section will show that its provisions may be violated at least five different ways. Arguendo, we may say for the purpose of illuminating the point in hand, and not for the purpose of definite decision or to establish a hard-and-fast rule, that this section makes it an offense (a) to carry a dangerous or deadly weapon concealed upon or about the person; (b) to go into'any church or assembly for religious worship, or into any school room or place of public assembly, or to any election precinct on election day, or into any court room during a session of court, or into any other public assemblage of persons (except military drills), having such weapon upon or about the person, whether concealed or exposed; (c) or to exhibit any such weapon in the presence of one or more persons in a rude, angry or threatening manner; (d) or to have any such weapon in possession when intoxicated; (e) or to sell or deliver, loan or barter, directly or indirectly, such weapon to any minor without the consent of such minor’s parent or guardian. To this section there is appended a proviso setting out defenses which justify, to-wit, that “nothing contained in this section shall apply to legally qualified sheriffs, police officers and other persons whose bona fide duty is to execute process, civil or criminal, make arrests, or aid in conserving the public peace, nor to persons traveling in a continuous journey peaceably through this State.”

To repeat the point vexing, us and to reduce that point to its last analysis, we may propound the question: Does the proviso quoted contain all and every of the defenses which may be urged in any prosecution for any violation of any of the several offenses above analyzed and in said section denounced? We think it is manifest from the terms of said section alone and from so much of it as we have quoted, and wholly aside from the consideration of other rules of law or of abstract justice, that the conclusion that the proviso set out does mention all the defenses which are permitted to be made, is illogical and cannot be sustained. F'or it will be noted that it is made a felony to directly or indirectly sell such a weapon to any minor without the consent of such minor’s parent or guardian. Can it be urged with any basis of reason or logic that while it is an offense for the ordinary private citizen, who is not an officer, to sell dangerous and deadly weapons to minors, it is not an offense for a sheriff or a police officer, or a person traveling peaceably in a continuous journey through the State to make such sale? We think not. Again, will it be contended that one merely-passing through “an election precinct on an election day” with a shot gun, with a bona fide intent to go hunting, or while returning from hunting, is guilty of the offense denounced by this section merely from the fact that he is carrying in .plain and open view such shot gun or a rifle 1 It militates but little against this argument that as it appears in this statute the term “election precinct” is used as synonymous with “polling place;” yet it.is manifest that a hard-and-fast construction of this section, as urged upon us by the State, would bring about both of these unthinkable and illogical results, as well as many others equally absurd. In the instant case it is fairly clear that the defendant in exhibiting this pistol in a rude, angry and. threatening manner and in assaulting the witness Meyers by striking him over the head five or six times therewith, and by shooting him through the back with it, came more nearly within the purview of the crime of assault with intent to kill, or of an assault to do great bodily harm, as denounced by sections 4481 and 4482, Revised .Statutes 1909, than he did within those denounced by section 4496, which deals with the carrying and mere exhibition, under conditions set out, of dangerous and deadly weapons. It would not be seriously urged, we apprehend, that if defendant had been charged with an assault with intent to kill, or with an assault with intent to do great bodily harm to the prosecuting witness, Meyers, he would not have been entitled, under the facts here, to an instruction on self-defense. Nothing seems clearer than that if we were to write into the law of this State a rule which forbids the defense of self-defense in a case where the specific charge is the exhibition of a dangerous and deadly weapon in a rude, angry or threatening manner, we would by the same token cut off bona fide defenses in cases where no law has in fact been violated and would subject the citizen to imprisonment, or to the danger of imprisonment, in the penitentiary in cases where he was in nowise at fault. E'or example: Applying this reasoningto the facts in the case and changing only the place of occurrence: if the defendant, who it seems is a saloon-keeper, had been in his place of business, instead of being at the questionable place where the record finds him, and the identical persons in whose presence he is charged with having* exhibited the weapon had come into his saloon armed, and had attempted to assault him, and he had then and there drawn, to protect his. life and property, a pistol, and being righteously angry and therefore rude, had threatened them and ordered them from the saloon, he could in that case have been prosecuted under this section, and while entirely innocent and wholly within his rights as a citizen, could have been convicted and sent to the penitentiary.

Nothing seems plainer than that such a possible condition was not intended and could not have been intended by the Legislature — if the rights and the safety of the citizen are intended to be protected — and that therefore the section does not in the proviso quoted, contain all of the exceptions and defenses open to one charged with exhibiting a dangerous or deadly weapon. If this is not so, then it lies within the power of the several prosecuting attorneys in the State in all cases where persons have used such weapons in protecting their lives or property from the assaults of others, absolutely to cut from under them one bona fide defense, by the simple expedient of indicting the defendant under the provisions of section 4496, instead of under sections 4481 or 4482, supra.

In our view, no such construction can in fairness be put upon the provisions of this section. If it was designed to abrogate the right of self-defense and if its affect be to do so, it is then more than possible that its constitutional validity might well be questioned, for that it whittles away a large part of that “natural right to life, liberty and the enjoyment of the gains of their own industry, ’ ’ which is vouchsafed to the citizen by the organic law. [Sec. 4, art. 2, Constitution of Missouri.]

For these reasons we are of the opinion that the court erred in refusing to instruct the jury on self-defense, and that this case ought to be reversed and remanded to the end that it may be tried in accordance with these views. Let this be done.

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


source: Caselaw Access Project

author: WALKER, P. J. —

license: Public Domain

text:
    THE STATE v. J. A. HUGHES, Appellant.
    Division Two,
    May 26, 1914.
    1. CARNAL KNOWLEDGE: Information: Stating Age of Child: Redundancy. While it is necessary to a criminal charge under the statute making carnal knowledge of a female under fifteen years of age a felony, where her exact age is not stated, that the information contain an allegation that she was under fifteen years of age, yet where her age is stated and is stated to be less than fifteen years, the allegation as to age is sufficient, and the further allegation that her age was within the maximum statutory limit is a mere redundancy. .
    2. -: Two Offenses: Election. The general rule in regard to requiring the State to elect upon which offense it will rely for a conviction is, that the election should be made as soon as it can be done intelligently, the application of the rule depending upon the development of the facts in each particular case, and the time of the election being left largely to the discretion of the trial court, and where it does not appear that such discretion has been abused the defendant cannot complain of the court’s refusal to compel an earlier election. Where accused was charged with carnal knowledge of a female child twelve years of age, on May 26th and again on July 14th, and it does not appear that he was prejudiced by the court’s failure to compel the State to elect upon which offense it would rely, immediately after the opening statement of the prosecuting attorney, during which he made reference to each offense, it will be held that no error was committed in not compelling an election until the close of the State’s case.

      3. REMARKS OF PROSECUTING ATTORNEY: Defendant’s Failure to Testify. It was not prejudicial error for the prosecuting attorney in his argument to the jury to say that “there was not a single word coming from a witness in. the witness chair contradicting anything that the little girl testified to.” Only hy a strained construction could those words he held to refer to defendant’s failure to testify, and to so construe them would do violence to their plain meaning.
    • 4. CARNAL KNOWLEDGE: Sufficiency of Evidence: Corroboration. It is not required that the testimony of the prosecutrix he corroborated in a carnal knowledge case, hut it must not he of a contradictory nature, hut must he convincing and leave the mind of the court free from douht; and although only the prosecutrix testified to the assault, yet if no facts or circumstances rendered her testimony uncertain, a verdict of guilty will not he set aside on the ground that the evidence was not sufficient to sustain it.
    Appeal from Atchison Circuit Court. — Hon. William G. Ellison, Judge.
    Affirmed.

      L. D. Ramsay for appellant.
    (1) The prosecuting attorney elected to stand on the act as proven on the 26th day of May, 1913. There was no amendment of the information. Sunday was May 25th, but at four o’clock in the morning it would be May 26th, or about one month before the law appellant is charged with violating went into effect. State v. Cox, 29 Mo. 475; State v. Stevens, 62 Mo. App. 232; State v. Sills, 56 Mo. App. 408 ; State v. Eyan, 30 Mo. App. 159; State v. Clinkenbeard, 135 Mo. App. 189; State v. Eoss, 25 Mo. 426;- State v. Hesseltine, 130 Mo. 468. Words of a statute which are descriptive of the offense and which constitute a part of the statutory definition cannot be omitted from an indictment based upon the statute without rendering it fatally defective. In matters of this kind it is one of the tests of the sufficiency of an information or indictment that every allegation may be taken as true, and yet the defendant be guilty of no offense or not guilty of the offense charged, or attempted to be charged. Com. v. Harris, 13 Allen, 539; Com. v. Collins, 2 Cush. 558; Turner’s Case, 9 Q. B. 80; Reg. v. Harris, 1 Denison, C. C. 466; Reg. v. Rowlands, 2. Denison, C. C. 377; State v. Bengsch, 170 Mo. 104; State v. Panning, 38 Mo. 409. Had there been no change in the statute, i. e., had it read as it now reads, all the way back, there would be no limitations, as rape is a capital offense, but the statute, under which appellant is charged, only existed back to June 26,1913. All offenses before that date, if proven, were offenses, of some statute not charged in the information. After the evidence was in the court sought to change the instructions to make them say female child under “14” instead of “15,” as originally written, but the information must stand on its own bottom, and cannot be supported or propped by instructions. Instructions, were right, probably, but were broader than the information. State v. Hesseltine, 130 Mo. 474; State v. Smith, 119 Mo. 447. The State elected to stand on May 26, 1913, exactly one month before the statute alleged to have been violated in the information went into effect. (2) At four o’clock Monday morning, May 26; 1913, by the testimony of the prosecuting witness, appellant and the witness were alone in his bed-room, in his bed. By the State’s evidence, it will be seen that the other inmates of the house were hard of hearing and soundly sleeping, so that the only person in this world that could go on the stand and dispute the simple story of the prosecuting witness was the appellant, defendant on trial, and he did not testify as a witness. Yet, in spite of the many cautions given by the court to prosecuting attorney on this point, it will be seen that after electing before the jury to stand on that four o’clock bed-room transaction, in his argument to the jury, he said there was not a single word coming from .a witness in the witness chair contradicting anything that the little girl testified to. Defense promptly-called attention of trial court, but court refused to reprimand. State v. Snyder, 182 Mo. 465; State v. Eisler, 220 Mo. 67. Just one count in the information and after the evidence pointed out the 26th day of May, 1913, appellant objected to a latter offense being proven, but his objection was overruled by the court. In matters of this kind there is a difference in proving prior offenses and later offenses.

      John T. Barker, Attorney-General, for the State; Paul P. Prosser of counsel.
    (1) Under the facts of this case, the evidence tending to show the commission of two different offenses, the court properly required an election at the close of the testimony for the State. State v. Palm-berg, 199 Mo. 241; State v. Pruitt, 202 Mo. 51; State v. Schenk, 238 Mo. 458; State v. Hurley, 242 Mo. 450; State v. Henderson, 243 Mo. 508. (2) The information charges that the appellant committed the offense “in and upon one-, a female child under the age of fifteen years, to-wit, of the age of twelve years.” Either under the original section or the amended section, the information sufficiently charges the offense. In the former instance, the phrase, “under the age of fifteen years,” will be regarded as surplusage, and the information held good, especially after verdict, since the defect, if any, in no wise “tends to the prejudice of the substantial rights of the defendant upon the merits.” 33 Cyc. 1445; See. 5115, R. S. 1909; State v. Yan Zant, 71 Mo. 543; State v. Houx, 109 Mo. 659; State v. Erickson, 81 Minn. 134; State v. Fetterly, 33 Wash. 601; People v. Gardner, 98 Gal. 128; State v. Newton, 44 Iowa, 47. (3) The remark of counsel for the State, in the argument before the jury, that “there was not a single word coming from a witness in the witness chair contradicting anything that the little girl testified to,” cannot be construed into a comment on the appellant’s failure to testify. State v. Ruck, 194 Mo. 441.
   WALKER, P. J. —

Appellant was convicted in the circuit court of Atchison county for a violation of section 4471, Revised Statutes 1909, as amended by Laws 1913, p. 218, and his punishment assessed at six years ’ imprisonment in the penitentiary, where he is now confined. From the judgment rendered herein he appeals to this court.

The information, omitting the formal parts, name of prosecutrix, and the signature of the prosecuting attorney, is as follows: “that J. A. Hughes, on or about the 14th day of July, 1913, at the county of Atchison, in the State of Missouri, in and upon one--, a female child under the age of fifteen years, to-wit, of the age of twelve years, unlawfully and feloniously did make an assault, and her, the said---, then and there unlawfully and feloniously did carnally know and abuse; contrary to the form of the statute in such cases- made and provided and against the peace and dignity of the State.”

Two different assaults by appellant on the child were proved, one May 26, 1913, and the other July 14, 1913. On motion of appellant, the State was required to designate the offense on which it relied for conviction, and the prosecuting attorney elected to stand on that of May 26-, 1913. The chiM- was in her eleventh year at the time of the commission of the alleged offenses by appellant; the evidence in regard to same was confined to her testimony. The defense introduced no witnesses except as to the child’s character for truth and veracity. It will serve no helpful purpose either to morals or jurisprudence to dwell further upon the facts.

Appellant urges as grounds of error: First, that the information is insufficient; second, that the manner in which the State was required to make an election was improper; third, that certain remarks of the prosecuting attorney were prejudicial; fourth, that the evidence was insufficient. We set forth at length hisi contention in regard to the information as same was submitted, by his counsel at the trial, as follows:

“The information is insufficient in law and does not charge any offense against the defendant in this, that the information charges that the offense was committed by having carnal knowledge of (name of prosecutrix), a female child under the age of fifteen years and the proof and election by the State fixes the offense as of the exact date of May 26, 1913, at which said date there was no law in this State making it an of-fense, or rape, to have carnal knowledge- of a female child under the age of fifteen years.”

I. The information charges that the assault was committed “in and upon” (here naming her) “a female child under the age of fifteen years, to-wit, of the age of twelve years.”

The gravamen of the offense consists, under the original section, in carnally knowing a female child under the age of fourteen years, and under the amendment in a like - knowledge of a female child under the age of fifteen years. While, therefore, it is necessary in a criminal charge under this statute, where no exact age is stated, that an allegation be made that the child is within the statutory limit, where the age is stated and it is within such limit, then an allegation in addition thereto as to the general limit is a mere redundancy. The information in this case would, therefore, have been sufficient if the allegation under the age of fifteen years had been omitted. If its omission was authorized, then its addition worked no injury. A precedent sustaining this conclusion is to be found in State v. Griffin, 249 Mo. 624. The constitutional requirement that the information shall enable the accused to clearly understand the nature and cause of the accusation against him is fully met in this case. Appellant’s contention in this regard is without merit.

II. Appellant complains of the action of the trial court in not requiring the State to elect upon which offense it would rely for a conviction, immediately after the opening statement of the prosecuting attorney,- during which he made reference to each offense.

The general rule in regard to an election as to offenses is that it should he made as soon as it can be done intelligently, the application of the rule depending necessarily upon the development of the facts in each particular case. This being true, the time of election must he left largely to the discretion of the trial court; where it does not appear that this has been abused to the injury of the accused, he. has no ground for complaint. Rulings in regard hereto will he found in- the following recent cases: State v. Henderson, 243 Mo. l. c. 508; State v. Hurley, 242 Mo. 452, 459; State v. Palmberg, 199 Mo. 233, 243.

In State v. Henderson, supra, Fekriss, J., in his usual clear and concise manner, thus states the rule: “In a prosecution for statutory rape upon a female under fourteen years of age, each act of intercourse is a separate felony and an election is proper at the earliest time when it is apparent that the State can make an intelligent election. ’ ’ In that case there was no election and the court held that it was not necessary, as the defendant could be convicted of the first offense only, because then only is the prosecutrix of chaste character, citing State v. Schenk, 238 Mo. 429, and State v. McMahon, 234 Mo. 611.

While, the rule as announced in the Henderson case could very well be applied here, as the facts are parallel, it is not necessary. Here there was an election and the State stood upon the first offense. There being no showing that the appellant was prejudiced by the trial court not requiring an election until the close of the State’s case, we rule this contention against the appellant.

III. The prosecuting attorney in his argument to the jury said that “there was not a single word coming-from a witness in the witness chair, contraddcting anything that the little girl testified to.” Counsel for the defense asked the court to reprimand the prosecuting attorney for this remark, which the court declined to do. Appellant assigns this as error on the ground that the remark constitutes such a reference to the defendant’s failure to testify as is prohibited by section 5243, Eevised Statutes 1909. We are not impressed with the reasonableness of appellant’s interpretation of this remark. Measured either by its tenor or its purport it can refer only to witnesses who have testified, or to the testimony before the court. Any other construction, in our opinion, does violence to the plain meaning of the words employed and is not authorized.

The Snyder case, 182 Mo. 462, is not an authority contrary to the conclusion reached here. In that case in which the defendant had not testified, a lawyer of counsel for the State, repeatedly stated in his argument to the jury that “no witness had been called to contradict the prosecuting witness,” and amplified this statement so as to clearly indicate that he referred to the defendant. Unfortunately in the court’s reprimands, such allusions were also made to the defendant’s failure to testify as to emphasize the counsel’s reference. Properly, this court held this to be error sufficient to justify a reversal. No such facts esist in the instant case. Only the remark complained of was made and the trial court, no doubt recognizing, as we do, that only by a strained construction can it be said to refer to the accused, declined to rule it out. While the trial court should carefully protect the rights of an accused, an'dl see to it that he has a fair and an impartial trial, it is not fair by a strained construction of words to charge counsel for the State with purposely and indirectly commenting upon the failure of the defendant to testify, nor should section 5243, supra, be given such a narrow construction that counsel for the State may not in argument, if evidence of the State is uncontradicted, so allude to it. This much was said in substance by this court in State v. Ruck, 194 Mo. 416, 441, in which Gantt, J., who had written the Snyder case, distinguishes the latter case and limits the general application which its language would otherwise indicate.

Fairly considered, therefore, there is nothing in the remark of the prosecuting attorney upon which to base prejudicial error.

IY. Only the prosecutrix testified as to the assault. No facts or circumstances rendered her testimony uncertain; full credibility having been given it by the jury, we will not . usurp its province. Although it is not required that the testimony of a prosecutrix in a case of this character should be corroborated (State v. Stackhouse, 242 Mo. 444), it must, as was well said by Brown, J., in State v. Tevis, 234 Mo. l. c. 284, not be of a contradictory nature, but convincing, and leave the mind of the court free from doubt. Such was the testimony in this cause. We, therefore, find no merit in the contention that there was a lack of evidence to authorize the verdict.

We have on account of the serious nature of this offsense gone carefully over the record. Appellant had a fair trial, andl the judgment of the circuit court should be affirmed. It is so ordered.

Brown and Faris, JJ., concur.


author: BROWN, J. —

text:
    THE STATE v. SAMUEL GENNUSA, Appellant.
    Division Two,
    May 26, 1914.
    1. RECEIVING STOLEN GOODS: Embezzlement. The charge of receiving stolen goods is not sustained by proof that the goods received by a defendant were only embezzled.
    2. -: -: This Case. The evidence for the State Strongly tended to prove that a transfer company intentionally committed three cases of cigars of the value of $74 to the possession of one Guthrie, one of its teamsters, with instructions to him to deliver them to a railroad company for shipment, and that he feloniously embezzled them and sold them to defendant for $30. Held, that the proof would not sustain a charge of receiving stolen goods, knowing them to be stolen, although the crime of knowingly receiving embezzled goods is very similar to the crime of knowingly receiving stolen goods.
    Appeal from Jackson Criminal Court. — Ho». Ralph 8. Latshaw, Judge.
    BeVERSED' and remanded.

      C. H. Rucker and Wo ford & Kimbrell for appellant.
    . Defendant having bought and received the cigars in question from Sol Guthrie, who was lawfully in possession thereof as the agent and servant of the Kansas City Transfer Company, his offense, if any, was that of having received embezzled property, knowing' the same to have been embezzled, and his conviction for receiving stolen property, knowing the same to have been stolen, cannot- stand. State v. Casey, 207 Mo. 1; State v. Fink, 186 Mo. 50; State v. Coster, 170 Mo. App. 539.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
   BROWN, J. —

Defendant was tried and convicted in the criminal court of Jackson county of the crime of receiving stolen goods, and appeals. The specific charge is that he received three cases of cigars of the value of $74, the property of the Kansas City Transfer Company, knowing said cigars to have been stolen.

There is no evidence that the cigars were in fact stolen. The testimony for the State strongly tends to prove that the Kansas City Transfer Company intentionally committed them to the possession of Sol. Guthrie, one of its teamsters, with instructions to deliver them to the Frisco Railroad Company for shipment, and that said Guthrie, while said goods were so in his possession, feloniously embezzled and sold them to defendant for $30.

I. The crime of knowingly receiving embe'zzled goods is very similar to the offense of receiving stolen goods, but under the statutes and decisions of this State the charge of receiving stolen goods is not sustained by proof that the goods received by a defendant were only embezzled. [State v. Fink, 186 Mo. 50; State v. Casey, 207 Mo. 1; State v. Coster, 170 Mo. App. 539.] This issue seems to be so well settled by the foregoing decisions that any extended discussion of the same by ns is unnecessary.

. Other assignments of error are duly preserved 'and assigned! by defendant for reversal, but as the evidence clearly indicates that he cannot be convicted of the present charge, and as there is no. reason to suppose that the same alleged errors will occur if the State elects to prosecute him for receiving embezzled goods, or for some other crime, we will simply reverse the judgment and remand the cause. It is so ordered.

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


text:
    THE STATE v. W. H. HURLEY, Appellant.
    Division Two,
    May 26, 1914.
    1. CONSTITUTIONAL STATUTE: Title: Purpose. The purpose of the clause of the Constitution (Art. 4, see. 28) declaring that “no hill shall contain more than one subject, which, shall be clearly expressed in its title,” is that the title shall indicate generally what the act contains; that is, refer in comprehensive language to the subject-matter of the act, but not necessarily to subordinate matters connected therewith or reasonably within its purview.
    2. -:-:-: Incongruous Matter: Protection and Preservation of Fish: Selling or Keeping Dynamite Without Permit: Crime. The title of the act was: “An Act to amend Chapter 67 of the Revised Statutes of Missouri relating to fish, by adding an article thereto to be known as Article 3 and entitled ‘The Protection and Preservation of Fish,’ and to provide penalties for the violation of the same.” Held, that said title did not indicate that the body of the act contained a section declaring that no person or corporation should have, keep, sell or give away dynamite or giant powder without first obtaining a permit from the county clerk, and making a failure to file . an affidavit as to the use of such explosives a misdemeanor, and a failure to truthfully observe the requirements of the affidavit a felony. The sections are incongruous with the general purpose of the act and are not within the purview of the title, and are invalid.
    3.--: Making Same Act a Misdemeanor and Felony. A statute which makes a failure to file an affidavit to the effect that affiant will not use certain explosives in his possession in catching or killing fish a misdemeanor, and a failure to observe the provisions and requirements of said affidavit a felony, does not attempt to punish the same offense both as a misdemeanor and as a felony.
    Appeal from St. Louis County Circuit Court. — Hon. O. A. Wurdemcm, Judge.
    Eeveeseu.

      Haywood Scott for appellant.
    (1) Section 28 of article 4, of the Constitution, which declares that no law enacted by the G-eneral Assembly shall relate to more than one subject which shall be clearly expressed in its title, is mandatory and when a law is clearly and palpably in opposition to it, there is no other • alternative but to pronounce it invalid. Williams v. Railroad, 233 Mo. 676; State- ex rel. v. Gordon, 233 Mo. 388; State v. Rawlings, 232 Mo. 544; St. Louis v. Wortman, 213 Mo. 131; State v. Fulks, 207 Mo. 26; State v. Coffee and Tea Co., 171 Mo. 634; State ex rel. v. County Court, 102 Mo. 531; State v. Persinger, 76 Mo. 346; Kansas v. Payne, 71 Mo. 159. (2) The regulation of the business of dealing in dynamite, giant powder, etc., by requiring persons-, corporations and joint stock companies who desire to continue in or engage in the dealing or-sale of any such articles to first obtain a permit authorizing the same from the clerk of the county court, or mayor of the city of St. Louis, in wihichever county or city such applicant may desire to do such business (Sec. 6539, R. S. 1909, being Sec. 5086c, Laws 1893, p. 173) is not constitutionally covered by its title. St. Louis v. Wortman, 213 Mo. 131; State v. Coffee and Tea Co.., 171 Mo. 634; Water-Power & Land Co. v. State, 49 Neb. 223; State v. Dlison, 130 La. 488; Hawkins v. Copper Ex. Co., 69 N. J. L. 126; Shepherd v. Connolly, 141 N. W. 556; State v. Steelman, 66 N. J. L. 518-; Shooting Club v. Lamoreaux, 89' N. W. 823. (3) In order for the title of an amendatory act to be sufficient where it contains merely a reference to the act, or section, to be amended, the amendatory act must deal exclusively with the subject of the act, or section, amended. And where the amendatory act enlarges the act amended by adding new subjects some of which are not referred to either' in the act amended or in the title of the amendatory act, then for a more powerful reason, is the amendatory act unconstitutional as to such new subjects which are not expressed in its title. State ex rel. v. Heege, 135 Mo. 118.

      John T. Barker, Attorney-General, for the State; Paul P. Prosser of counsel.
    ( 1) The title in this case is sufficient. State ex rel. v. Gordon, 223 Mo. 1; State ex rel. v. Taylor, 224 Mo. 393; State v. Brodnax, 228 Mo. 25. (2) Defendant claims that there are two punishments for this offense, one punishment making it a felony and one a misdemeanor. Defendant complains that he was prosecuted for a misdeameanor instead of a felony, hut as this was in his own favor he should not complain. State v. Skillman, 228i Mo. 439; State v. Foster, 187 Mo. 590.
   WALKER, P. J. —

The appellant was charged in an information filed by the prosecuting attorney of St. Louis county with unlawfully retaining and keeping in his possession and under his control dynamite and giant powder, which he sold and disposed of without first having obtained a permit so to do, from the clerk of the county court of St. Louis county. A motion to quash the information was filed and overruled, a jury waived, trial was had before the court on an agreed statement of facts, and appellant was found guilty and fined fifty dollars. After the usual procedure, he appeals to this court.

Error is assigned in the overruling of the motion to quash the information; and the court’s refusal to declare the law to be that appellant was not guilty under the agreed statement of facts.

The grounds of the motion to quash were that the information did not state facts sufficient to show any violation of the law; did not state facts that constitute a public offense under the laws of the State; was indefinite and uncertain and did not inform the appellant of the nature of the offense charged against him; was invalid as being violative of section 28 of article 4 of the Constitution of Missouri, which provides that no bill (except general appropriation bills) shall contain more than one subject, which shall be clearly expressed in its title; that the act in which the section is found under which appellant was charged, as first enacted was entitled, “An Act to amend Chapter 67 of the Revised Statutes of the State of Missouri, 1889, relating to fish, by adding an article thereto to be known as article 3 and to be entitled ‘The Protection and Preservation of Fish, ’ and to provide penalties for the violation thereof” (Laws 1893, p. 173); and because there is nothing in said title to indicate that persons, corporations, etc., have no right to have, retain, keep, or sell dynamite, giant powder, etc., without first obtaining a permit from the clerk of the county court, and because said act makes a failure to file an affidavit as to use of such explosives a misdemeanor, and a failure to truthfully observe the provisions and requirements of said affidavit when made, a felony.

The agreed statement of facts is that the appellant was an employee or agent of a powder company, and as such, on the date named in the information, was engaged in delivering, to customers of said company, dynamite and giant powder, which he kept in his possession for such delivery, without having obtained a permit so to do from the county clerk of St. Louis county, and that neither he nor the company he represented had obtained such permit as required by section 6539, Revised Statutes 1909, nor had he or said company which he represented made the affidavit required by section 6540.'

The question submitted as to the sufficiency of the title to the statute (Laws 1893, p. 173, or what is more particularly under consideration here, Secs. 6539 to 6544, both inclusive, R. S. 1909) will suffice to determine whether or not these sections as incorporated into the original act constitute a compliance with the Constitution regarding the title to legislative enactments. The purpose of the constitutional provision (Sec. 28, art. 4, Con. Mo.) is that the title shall generally indicate what the act contains, and by the terms “generally indicate” we mean that it shall refer in a comprehensive manner to the subject-matter of the enactment, but it need not necessarily refer to subordinate matters connected therewith or reasonably within the purview of the statute.

In the act under consideration, the title is limited to the “Protection and Preservation of Pish,” and while the use of explosives in the destruction of fish is elsewhere prohibited in the statute, and punishment prescribed, the terms of the particular sections under review are not limited to the prohibition of such use, but they proceed further and in a general way require the procuring of permits before one is authorized to keep in his possession, sell, give away or in any manner dispose of the explosives therein enumerated. Other requirements and restrictions are prescribed in no way connected with the act, in regard to the protection and! preservation of fish, except that the party procuring the permission to deal in the explosives named, is required to make an affidavit that he will not use same in catching or killing fish, or permit others so to do, and further that he will not have such explosives in his possession without having made such affidavit, etc.; these requirements are inserted in what is, in fact, a general statute regulating the dealing in and use of explosives and are not sufficient to bring the sections under review fairly within the purview of the title. In fact, the sections under consideration, save for the connection mentioned, are not in harmony with the remainder of the act and by no reasonable construction can they be said to have any legitimate connection with the title to same; no matter, therefore, how much latituidie may be given to the rule of construction in regard to the comprehensiveness of titles., the sections cannot be regarded as otherwise than incongruous. The original act, therefore, in so far as it attempts, in addition to providing for the protection and preservation of fish, to prescribe generally • the manner in which explosives shall be used or dealt in is in violation of the constitutional provision (Sec. 28, art. 4, supra), that “no bill . . . shall contain more than one subject, which shall be clearly expressed in its title.”

We would not be understood as holding that the invalidity of the statute applies to other than sections 6539 to 6544, both inclusive, as the other provisions of the act which have been carried forward and inserted in what is now chapter 49, article 2, Revised Statutes 1909, entitled, “The Preservation of Pish and Game,” are reasonably included within such title and are not subject to the objection urged and sustained against the sections under review.

We are not impressed with the other objections urged by the appellant to the statute in question, especially with the contention that the same offense is attempted to be punished both as a felony and a misdemeanor.

It was well said in State v. Taylor, 186 Mo. l. c. 615, that it was our duty “in construing two sections on the same subject defining criminal offenses, to so construe them as to bring them in harmony, and make them both effective and operative, to the end that a remedy may be afforded for the evil sought to be suppressed. ” The rule announced in the Taylor case was affirmed in a well considered opinion by Pox, J., in State v. Hodges, 214 Mo. 376, in which it was held that what are now section 6538 and section 6546, Revised Statutes 1909, which define certain offenses as felonies, were not in conflict with section 6537, Revised Statutes 1909, in the same article, which defined the offenses therein enumerated as misdemeanors, for the reason that different offenses were defined and consequently different punishments were authorized. A like rule is applicable here, especially in view of the fact that certain of the sections there construed are here reviewed.

From all of the foregoing' it follows that the judgment of the trial court should he reversed, and it is so ordered.

Brown, J., concurs ; Baris, J., not sitting.