text:
    THE STATE v. CHARLES McAFEE, Appellant.
    Division Two,
    November 24, 1908.
    MURDER IN SECOND DEGREE: Sufficient Evidence: No Sudden Fear or. Heat of Passion. Deceased had threatened to whip defendant, and approached him as he was leaning against a lemonade stand on a picnic ground, and laid his hands on him, and the two moved out of the crowd, talking about fighting as they went, and deceased asked defendant to take his hand off his hip pocket and fight him fair, but as deceased was taking off his vest defendant shot him, and after deceased had fallen he stated, “You have killed me,” and thereupon defendant was preparing to shoot him again when one of the witnesses interfered and told him to desist. Defendant did not seek the quarrel, but had provided himself with a pistol in anticipation of it, and took advantage of the quarrel to shoot deceased, who was unarmed and who had not struck at defendant at the time the shot was fired but was merely preparing for a personal encounter by taking off his vest. While deceased had applied insulting epithets to defendant and had threatened to whip him, there is no evidence tending to prove that defendant was thereby aroused to a sudden heat of passion; on the contrary, the testimony is that both men appeared to be cool and self-possessed. Ilelcl, that the killing was done with premeditation and deliberation, and the evidence was sufficient to have supported a verdict of murder in the first degree, and one of murder in the second degree is not disturbed.
    Appeal from Wayne Circuit Court. — How. Jos. J. Williams, Judge.
    Affirmed.

      Herbert S. Hadley, Attorney-General, and F. G. Ferris, Assistant Attorney-General, for the State.
    (1) The jury by their verdict found the defendant guilty of murder in the second degree, which was sufficient. If it he held that the jury failed to declare the punishment, then, in such case, it was the statutory duty of the court to assess and declare the punishment and render judgment accordingly. R. S. 1899, sec. 2649; State v. King, 194 Mo. 484; State v. Van Wye, 136 Mo. 243. (2) There was ample evidence to support the verdict of murder in the second degree. The record is free from error, and the judgment should be affirmed.
   BURGESS, J.

On the 25th day of January, 1908, the prosecuting attorney of Wayne county filed an information in the circuit court of said county, charging the defendant with murder in the first degree for the killing of one J. M. Boatwright, with a loaded pistol, at said county, on the 4th day of July, 1907. He was tried upon said charge on the 19th day of February, 1908, and convicted of murder in the second degree, the verdict of the jury fixing his punishment “at ten years in the penitentiary.” On the same day the defendant filed motions for a new trial and in arrest of judgment, which were overruled by the court. Thereafter, on the 22d day of February, 1908, the defendant arjd his counsel being present, the court, in view of the informality in the verdict respecting the punishment, changed its terms so as to read “at imprisonment in the penitentiary for the term of ten years.” The court thereupon rendered its judgment and passed sentence upon the defendant, from which judgment the defendant appeals.

The testimony discloses that on July 4,1907, there was a picnic at Mill Springs, Wayne county, Missouri, which was attended by a large crowd of people. Defendant was early in town that morning, and between nine and ten o’clock in the forenoon he appeared at a store in Mill Springs and traded his watch for a revolver. The deceased, J. M. Boatwright, was seen on the picnic grounds that forenoon, apparently somewhat under the influence of liquor, and was making inquiries for defendant, whom he said he wanted to whip. Boatwright was a short man, weighing about one hundred and sixty-five pounds, and the defendant was about the same weight but taller. About one o ’clock in the afternoon, as defendant was leaning against a lemonade stand in the picnic grounds, Boatwright walked up to him and placed his hand on his shoulder. Some words passed between them, and then both men moved out of the crowd and into the open. There is some divergence in the testimony respecting the words which passed between the two men, and the epithets applied by each to the other, while at the lemonade stand and up to the time the fatal shot was fired. According to witness Elmer E. Boggs, who was within ten feet of the parties at the time, he saw both come out of the crowd, each man with his hand on the other’s shoulder, and heard Boatwright say to defendant that he would ‘1 go out of the crowd with him or any other son-of-a-bitch.” The defendant said, “Do I understand you to call me a son-of-a-bitch?” Boatwright made no answer, but told defendant to take his hand out of his hip pocket and he would fight him fair. He then proceeded to take off his vest, and while in the act of doing so he was shot by the .defendant with a pistol which he drew out of his right hip pocket. After the shot was fired Boatwright fell forward and grabbed at the pistol, and then fell on his back and died. This witness also testified that neither man appeared excited, but cool and self-possessed, and that at the time the fatal shot was fired they were two or three feet apart.

Judge Creecy testified that he was within ten or fifteen feet of the men when the-trouble commenced. He saw Boatwright motion to defendant and heard him say, ‘ ‘ Come out of the crowd, you damn-son-of-a-bitch; I can whip you.” Defendant seemed angry, but not excited, and said, “Don’t call me that any more.” Boatwright then said, “I’ll call you anything I want to.” The defendant put his hand into his hip pocket, and Boatwright commenced pulling off his vest, saying, “I’ll whip you any way, with your hand in .there,” and applied another ugly epithet to the defendant. Immediately the- defendant fired, and Boatwright said, “You have killed me,” whereat the defendant said, “If I ain’t, G- — d d — -n you, I can do it.” As soon as Boatwright was down, the defendant drew his pistol on him again with both hands, at which time witness Creecy stepped up to the defendant, and said, “Don’t shoot him any more. You have already killed him; look at the blood on his shirt.” To this defendant réplied, “You stand back and keep your hands off of him or I will put one in-you.” Several other witnesses for the State testified much to the same effect, the testimony differing somewhat as to the details, all agreeing, however, that Boatwright was in the act of taking off his vest when the defendant shot him. There was no evidence that deceased struck at the defendant or that he had any weapon. Dr. Owens, who was also an eye-witness to- the shooting, and whose testimony was like to that of the other witnesses for the State, examined the body of the deceased, and found a bullet wound in his right breast, between the first and second ribs. He testified that this wound caused the death of the deceased.

Charles McAfee, the defendant, testifying in his own behalf, said that a week before the said Fourth of July, Sarah Baker told him that Boatwright was going to kill him on sight. He had seen Boatwright twice in the morning, but avoided him, and was told that morning, at the picnic, by Sarah Baker, Alice Swann and G-eorge Mann that Boatwright was hunting for him. He said he was standing at the lemonade stand talking with Mr. Mann, who had just told him that Boatwright was hunting him, when Boatwright approached, grabbed him by the left arm, called him a vile name, and then said: “Come out here; I am going to kill you.” To this the defendant replied, “No, sir; I don’t think any of the Boatwrights can do that.” He testified that Boatwright held to his arm and pulled’ him out of the crowd, he resisting all the time, and that as Boatwright made a movement with his hand towards the right-hand pocket of his pants he (defendant) shot him. He said that he was not able to meet Boatwright in a physical encounter, and was not his equal in size or strength. He denied that the deceased was taking his vest off when he shot him, or that deceased told him to take his hand out. of his pocket, or that he said he would fight him fair. In defendant’s behalf, Sarah Baker testified that about a week before said day she heard Boatwright threaten defendant’s life, and that about 9 o’clock on the morning of that day Boatwright told her he was hunting defendant and that he was going to kill him, which threats she communicated to defendant that morning. She stated that she witnessed the beginning of the difficulty ; that she was on one side of the lemonade stand, and the defendant and Boatwright on the other; that Boatwright went up to the defendant, grabbed him rouglily by his shoulder, addressed him in insulting language, and said that he was going to kill him. Her testimony further disclosed that there was ill-feeling between the defendant and Boatwright’s half-brother, Ed. Boatwright, resulting from their respective attentions to a Mrs. Swann.

Rufus Tindall, in defendant’s behalf, testified that in the morning of that day he met Boatwright, who inquired for the defendant, haying that he was going to give him a good whipping; that about one o’clock he again met Boatwright, who inquired if he had seen the defendant, and that as he made the inquiry he saw the defendant, and remarked, “What I am going to do to him will be a plenty.” Tindall requested him not to get up any trouble, and Boatwright, who had a knife in his hand, whittling, at the time, said, “I just want to get to stick that much of the blade in his heart.” Witness further said that Boatwright seemed mad; that he went up to the defendant, took him by the shoulder and told him that he was going to give him a whipping; that he pulled the defendant along, the latter resisting, until they emerged from the crowd, when Boatwright stepped in front of defendant, and they both stopped; that defendant drew his pistol, and Boatwright seemed to be grabbing at it, defendant fired, and Boatwright pitched forward against him.

Ben Nation, witness for the defendant, testified that Boatwright took hold of defendant’s shoulder, pulled him along, and said that he was going to give him a good whipping; that Boatwright was grabbing at defendant’s pistol as the shot was fired, and that Boat-wright’s vest was on one shoulder only when he fell.

Defendant introduced four witnesses who testified that Boatwright’s reputation in the community was that of a quarrelsome, turbulent and dangerous man.

While the defendant is not represented in this court, we have carefully gone through the record, and find it free from substantial error. Under the evidence, the defendant might well have been convicted of murder in the first degree. While he did not seek the quarrel with the deceased, he provided himself with a pistol in anticipation of it, and took advantage thereof to shoot the deceased, who was unarmed, and who at the time the shot was fired was in the act of taking off his vest. The deceased had not struck at the defendant, but was at the time merely preparing for a personal encounter with the defendant, whom he had threatened to whip-. It is true, the deceased had applied insulting epithets to the defendant, and threatened to whip him, but there is no evidence tending to prove that the defendant was thereby aroused to a sudden heat of passion, the testimony, on the contrary, being that both men appeared to be cool and self-possessed at the time. Even after the shot was fired, and the deceased had fallen, the defendant was about to shoot again when one of the witnesses present interfered and told him to desist. Indeed, from all the evidence, it is plain that the killing was done with premeditation and deliberation, and the defendant might well count himself fortunate in escaping with so. light a sentence.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: FOX, P. J.

license: Public Domain

text:
    THE STATE v. WILLIAM BALDWIN, Appellant.
    Division Two,
    November 24, 1908.
    1. INFORMATION: Concubinage. The information in this case does not fail to charge the defendant with taking away the prosecuting witness from her father, who it is charged had her in his legal control and custody; but is sufficient.
    2. CONCUBINAGE: Evidence: Consent of Parent. It is not improper, in a concubinage case, to permit the father of the minor prosecutrix to testify that he did not give his consent to her going away with defendant. Such statement by the father is immaterial, and even if it were incompetent its admission would not constitute reversible error.
    3. HABITUAL CRIMINAL: Identification: Prior Conviction. Where the defendant while on the witness stand admitted that he had been convicted of an offense prior to the one charged in the information, the admission of the records of the circuit court and of the warden of the penitentiary, showing a conviction, sentence and discharge of a person by the same name, without any further identification of said person as. being the same defendant, is not reversible error, but sufficient, in the absence of testimony to the contrary, to submit the question of whether he was the same person or not to the jury, and to authorize them to find the issue against defendant.
    4. CONCUBINAGE: Instruction: Previous Chaste Character, ft > is not error to instruct the jury in a concubinage case that, if they should find the prosecuting witness was of unchaste character and had previously had sexual intercourse with defendant, such facts do not constitute any defense to this prosecution.
    5. -: -: More Than One Act of Intercourse. An instruction which tells the jury, among other things, that if defendant did take the prosecuting witness from her father, “and that she was at the time a female under the age of eighteen years, for the purpose of cohabiting with her in sexual intercourse for any length of time for more than one single act of sexual intercourse, then the defendant is guilty of 'the crime of concubinage as charged in the information,” is not erroneous.
    6. -: -: Taking Away: From Immediate Possession: Physical Force. Where defendant met the fifteen-year-old girl on the street, and the instruction told the jury that “in order to find defendant guilty it is not necessary that the jury should find that defendant took the prosecuting witness from the immediate possession, house or home of her' father, but it is sufficient if he took her from the control and possession of her father and took her out of the neighborhood in which she had lived prior thereto, so that her whereabouts were unknown to the father, without his consent,” it is not reversible error to add thereto, “It is not necessary that the defendant should have used any physical force in taking her away; it is sufficient in law if you find and believe from the evidence that defendant induced or persuaded her to go away with him from her father’s home for the purpose of having sexual intercourse with him.”
    7. -: Verdict: Habitual Criminal. The verdict found “the defendant guilty of habitual criminal and taking away a female for the purpose of concubinage, as charged in the information,” etc. Held, informal, but sufficient to support a judgment. It was not necessary that the jury make a specific finding of a former conviction, but the words used indicate that they embraced that finding in their verdict, and they clearly found that he was guilty of taking away a female.

      8. -: Instruction: Not Married. Where there was no pretense at the trial that defendant and the prosecuting witness were married, it was not reversible error to fail to instruct the jury that they must find that they were not married before they can convict the defendant of concubinage.
    Appeal from St. Louis City Circuit Court. — Ron. Daniel D. Fisher, Judge,
    Affirmed.

      Jones R. Parher and I. Joel Wilson for appellant.
    (1) The information is insufficient in that it fails to charge defendant with taking away from her father Florence Hamann. State v. Adams, 179 Mo. 341. (2) It was error to admit, over the objection of defendant, the statement of William Hamann, the father of the prosecuting witness, to the effect that he did not give his consent to his daughter’s going away with defendant. This testimony was foreign to the issues and therefore irrelevant, and being admitted error was committed. Sherwood’s Com. on Crim. Law, p. 108. Defendant could not be heard to say in defense that he had procured the consent of the father to take away his daughter, as the father had no authority to give his consent, in fact should he do so he would himself be guilty of a felony under the statute. And so with the admission of the testimony above referred to the State is permitted to inject into the minds of the jury a poison for which the defendant has no antidote. (3) It was error to give the second instruction submitted to the jury by the court of its own motion. In construing the law governing this class of cases in a number of jurisdictions, including our own, where the statute is silent as to the character or reputation of the prosecutrix for chastity, the courts are almost a unit in holding that chastity should be exacted of the female to bring her within the protection of the law. Kerr v. State (Ind. Terr.), 104 S. W. 809; State v. Kelley, 191 Mo. 691; State v. Johnson, 115 Mo. 492; State v. Gibson, 111 Mo. 92; Polk v. State, 40 Ark. 486; Caldwell v. State, 73 Ark. 139; Andre v. State, 5 Iowa 398; Boak v. State, 5 Iowa 430; State v. Higdon, 32 Iowa 262. (4) It was error to submit the third instruction to the jury given by the court of its own motion. When the court gave this instruction and incorporated in it the following: “For any length of time for more than one single act of sexual intercourse,” it incorrectly declared the law governing the case. State v. Johnson, 115 Mo. 496; State v. Adams, 179 Mo. 343; State v. Rorebeck, 158 Mo. 130; State v. Bobbst, 131 Mo. 338. The gravamen of the offense is the intent defendant had at the time he took the prosecutrix away from her father, what he did subsequent to the taking could only be shown for the purpose of establishing the object or intent he had in mind at the time of the taking. State v. Adams, 179 Mo. 343; State v. Rorebeck, 158 Mo. 130; State v. Johnson, 115 Mo. 496; State v. Bobbst, 131 Mo. 338. This instruction is misleading and confusing. It conveys the impression that if defendant took Florence Hamann away from her father, and indulged in more than one act of sexual intercourse with her, he would be guilty of the charge in the information. (5) . The giving of the fourth instruction by the court of its own motion, was error. The statute upon which this prosecution is bottomed does not prohibit the taking away of a female under the age of eighteen years from her father for the purpose of having sexual intercourse with her. State v. Gibson, 111 Mo, 98; State v. Rorebeck, 158 Mo. 130; State v. Bobbst, 131 Mo. 338; State v. Johnson, 115 Mo. 496. An instruction which authorizes the jury to return a verdict of guilty against a defendant charged with “taking away a female under the age of eighteen from her father for the purpose of concubinage,” if they believe and find from the evidence that he took her away for the purpose of having sexual intercourse with him, misdirects them as to the law in the case. The court, in effect, in this instruction, tells the jury that in order to find defendant guilty the only fact necessary to be proved is that he took her away from her father with the intention of having sexual intercourse with her. (6) The court committed error in refusing to give the following instruction which was offered by defendant: “The court instructs the jury that if you believe that defendant took the prosecutrix away from her father for the purpose of having sexual intercourse with her merely, you will find the defendant not guilty.” This instruction correctly declares the law and should have been given. State v. Gibson, 111 Mo. 98; State v. Adams, 179 Mo. 343; State v. Rorebeck, 158 Mo. 1301; State v. Bobbst, 131 Mo. 338; State v. Johnson, 115 Mo. 496. (7) The motion in arrest of judgment should have been sustained. No valid judgment could be rendered upon the verdict. It did not respond to the whole information or charge. State v. Harmon,- 106 Mo. 635; State v. Manicke, 139 Mo-. 548; State v. Austin, 113 Mo. 538; State v. Moore, 121 Mo. 514; Beems v. Beekman, 3 Wend. 667; 3 Graham & Waterman on New Trials, p. 1378; State v. Pierce, 136 Mo. 40’; State v. Modlin, 197 Mo. 379; State v. DeWitt, 186 Mo. 61; State v. Cronin, 189 Mo. 670.

      Herbert 8. Hadley, Attorney-General, and F. G. Ferris, Assistant Attorney-General, for the State.
    (1) (a) The information charges the offense of taking away a female for purpose of concubinage in form approved by this court. State v. Johnson, 115 Mo. 486; State v. Jones, 191 Mo. 655. (b) The information sets forth the prior conviction of rape with sufficient particularity. Joyce on Indictments, sec. 367. (2) It is not necessary that the taking away should have been accompanied by actual cohabitation. “The gravamen of this offense is the purpose or intent with which the enticing and abduction are done, and hence the offense, if committed at all, is complete the moment the subject of the crime is removed beyond the power and control of her parents, or of others having lawful charge of her, whether any illicit intercourse ever takes place or not. • Subsequent acts are only important as affording the most reliable means of forming a correct conclusion with respect to the original purpose and intention of the accused.” State v. Knost, 207 Mo. 22; State v. Beverly, 201 Mo, 550; 4 Elliott on Evidence, sec. 2744. (3) It is no defense that the prosecutrix consented to go away with defendant, or consented to have sexual intercourse with him. State v. Bobbst, 131 Mo. 338; State v. Jones, 191 Mo. 660; Clark -& Marshall on The Law of Crimes, p, 306. (4) It is immaterial whether the girl was previously chaste. State v. Johnson, 115 Mo. 491'; State v. Bobbst, 131 Mo. 336. (5) The evidence was sufficient to support the verdict of the jury. State v. Beverly, 201 Mo, 550; Bishop on Statutory Crimes, sec. 637; 4 Elliott on Evidence, p. 50. (6) No error was committed by the trial court in giving instructions. State v. Adams, 179 Mo, 338; State v. Jones, 191 Mo. 653. (7) (a) Defendant’s refused instruction was properly refused. It does not properly declare the law. State v. Bobbst, 131 Mo. 338. (b) The instructions given by the court presented the case in all its features fairly to the jury, and it was not error to refuse the instruction asked by defendant. State v. Barrington, 198 M-o. 106. (8) Defendant’s former conviction of crime was properly proved by the records of the trial court. Carp v. Insurance Co., 203 Mo. 295.
   FOX, P. J.

This is an appeal from a judgment of conviction against the defendant in the circuit court of the city of St. Louis. On the 15th day of July, 1907, the assistant circuit attorney of the city of St. Louis filed an information, duly verified, in the circuit court of said city, charging the defendant, first, with having served a term in the penitentiary for the offense of rape, and then proceeded to make the charge of taking one Florence Hamann, a female under the age of eighteen years, from her father, having charge of her person, for the purpose of concubinage. August 19, 1907, the defendant was duly arraigned upon the information and entered his plea of not guilty. The cause was then continued to the October term of said court, and on the 9th day of October, 1907, the defendant was put upon his trial. The evidence upon the part of the State developed at the trial tended to prove substantially the following state of facts:

On the 21st day of May, 1907, Florence Hamann, a girl in short dresses, fifteen years of age, was residing at 207 Douehouquette street, in the city of St. Louis, with her father, William Hamann, who had legal charge of her person. On the morning of said day, the girl Florence left her father’s home in search of employment. On Chouteau avenue, in said city, while in company with two other girls, casual acquaintances, Lillie Schafenberg and Finnie Dishbing, she met defendant, a stranger to her and to her companions. Defendant, under pretext that he could secure a position in a telephone office for her, induced Florence to go with him. He took her to a room in the Clover Leaf Hotel in said city. Arriving in the room, Florence screamed, but defendant threatened her and put a bed against the door. He kept her in the room about two hours, during which time he had sexual intercourse with her. After leaving the Clover Leaf Hotel, defendant kept Florence in his company throughout the day. In the afternoon he secured a room for himself “and wife” at the boarding house of Mrs. Beamer," 715 South Broadway in said city, and he borrowed a bucket from Mrs. Beamer for coffee. Defendant and Florence spent the night together in said room, having sexual intercourse several times during the night. Mrs. Beamer did not know that the girl was with defendant in the room until next day. Defendant, upon his lawful relation to Florence being challenged that day by Mrs. Beamer, first asserted that the girl was his wife, and admitted that he had slept with her the preceding night. Later he admitted that Florence was not his wife, but claimed he had found her on the street and had .given her shelter at Mrs. Beamer’s house as a matter of charity. He proposed to give Mrs. Beamer $50 with which to buy clothes for the girl and find her a job. Mrs. Beamer kept the girl over night. Next afternoon defendant, in company with a young man called “Busybody,” came back and announced to Mrs. Beamer that he had made arrangements to get the money. Defendant and “Busybody” took Mrs. Beamer and the girl to the office of Mr. Parker, defendant’s lawyer, who represented himself as a doctor. Defendant said he wished to have the girl examined to see that he had done nothing wrong with her. She was closeted there in a private office with the “doctor” for some time, during which time, according to the testimony of the girl, the “doctor” examined her and had intercourse with her. When the “doctor” came out of the private office he said he would write a receipt for the money for Mrs. Beamer to sign. When the receipt was presented to Mrs. Beamer for her signature, she refused to sign it, for the reason that it appeared to be a written demand for the payment of money to avoid prosecution. Mrs. Beamer then went on home and never saw Florence again until the day of the trial. Mrs. Beamer notified the police. The day before the date of the crime Mrs. Beamer had bought her said boarding house. Among the hoarders whom she received from her predecessor was “Busybody,” whom she summarily dismissed the night after the incident at Parker’s office. After Mrs. Beamer left the office, defendant told Florence that her father had telephoned he was going to kill her, and he told the boy “Busybody” to take her out of the office. “Busybody” took her to the house of a Mr. Moore, from which place he immediately took her to defendant’s stable. Shortly after they arrived at the stable, Baldwin appeared there and took her up into the stable loft, where he kept her about two days. During the two days Baldwin did not stay with her upstairs. He sent food up to her and threatened her harm if she came downstairs. Saturday, May 24, 1907, one Anderson came to Florence at the stable, told her Baldwin had been arrested, and that she should leave. She had never before met Anderson. He took her to East St. Louis, thence to Chicago, and thence to Grand Haven, Michigan, where he married her. After more than a week’s absence from St. Louis, Anderson and Florence returned there. Florence admitted that on two occasions before she met defendant she had had sexual intercourse in East St. Louis with a boy named Eddy. She said that her husband, Anderson, communicated to her a sexual disease. The testimony of Florence was fully corroborated by the testimony of Lillie Scliafenberg, Amelia Beamer, and her father, in so far as their connection with the facts of the case extended. It was shown by the father that he did not know of or consent to his daughter being with defendant. Court records of the trial court, copy of judgment, with sheriff’s return, and certified copy of records of the Missouri penitentiary were introduced in evidence, showing that defendant was convicted of the crime of rape in said court in October, 1899, and that he served a five-year term therefor, ■which ended under the three-fourths rule July 1, 1903, when he was discharged.

Defendant, in his own behalf, testified that he'met Florence on the morning of May 21, as shown by the State, and that she voluntarily went with him to a room in the Clover Leaf Hotel for purposes of sexual intercourse. He said, however, that soon after entering the room he discovered that she was diseased, and he left her at once without having sexual intercourse with her. He said that he did not take the girl to Mrs. Beamer’s house; that he did not get a room there, and that he was not there that day or night. Several witnesses were put upon the stand, whose testimony tended to prove that he was working with teams all day of the day he met Florence, except about twenty minutes, when he went to the Clover Leaf Hotel with her. Defendant admitted being at Parker’s office at the time proved by the State. He said he went to Mrs. Beamer’s and got her and Florence to go to Attorney Parker’s office to see if he could not arrange to escape being a victim of an attempted blackmail, framed up on him by Mrs. Beamer and Florence, as he had been told by “Busybody.” He requested that the girl be examined by Doctor Parker, a brother of Attorney Parker, who had an office associated with that of the attorney, and the examination was accordingly made by the doctor, who discovered that the girl had gonorrhea. Defendant said that thereupon he refused to pay anything to Mrs. Beamer who had demanded $65 from him, $15 with which to buy the girl a long dress, and $50 for herself. Defendant denied that the girl had ever been at his' stable. He said he was arrested for this crime about dark on Friday, May 23. He admitted having formerly been convicted of crime.

Defendant’s witness, George B. Anderson, who sometimes worked for defendant, and who had recently served a term in the Missouri penitentiary, as he admitted, denied that he went to the stable and got the girl on May 24. He said that she came to his room about 7 p. m. of the 23d of May, and about an hour later he went with her to East St. Louis, where they remained four days, when he went with her to Chicago. From Chicago they traveled to several points, and were married at Grand Haven May 31. He denied any knowledge of defendant being in trouble on account of the girl, and denied that his departure with the girl had any relation to defendant’s case. Attorney Par-' ker denied that he represented himself as a doctor, or examined the girl, or had sexual intercourse with her, but said that his brother, Doctor Parker, examined her. Doctor Parker testified that he examined the girl in a proper manner and found her diseased with gonorrhea. Dr. Mingos testified that about the early part of June, 1907, Anderson brought his wife, Florence, to him for examination, and that he found she had a case of gonorrhea, apparently of two or three weeks ’ standing, but he kept no record of the examination. Attorney Parker corroborated defendant as to the happenings at his office, and testified that the meeting there had been advised by him, without any intention of giving Mrs. Beamer money, but with a view to unfolding the blackmail scheme against defendant. In his cross-examination he said that defendant had been arrested many time for jobs of one sort or another.

At the close of the evidence the court instructed the jury. We do- not deem it essential to reproduce in this statement all of the instructions given in this case, but will give those, the correctness of which are challenged by appellant, such attention as we may deem necessary during the course of the opinion. The cause was submitted to the jury and they returned- the following verdict:

“Slate of Missouri vs. William Baldwin.
“We, the jury in the above-entitled cause, find the defendant guilty of habitual criminal and taking away a female for the purpose of concubinage, as charged in the information, and assess the punishment at imprisonment in the penitentiary for five years.
“R. H. Durand, Foreman.”

Timely motions for new trial and in arrest of judgment were filed and by the court overruled. Judgment and sentence were entered in accordance with the verdict and from this judgment the defendant prosecuted this appeal, and the record is now before ns for consideration.

OPINION.

In the record before us numerous complaints of error are assigned by learned counsel for appellant. We will give the errors complained of such attention as in our opinion the importance of them merits.

I.

The sufficiency of the information is challenged on the ground that it fails to charge the defendant with taking away Florence Hamann, the prosecuting witness, from her father, who it is charged had her in his legal custody and under his control. We have in the statement of this cause reproduced the information ■upon which this judgment is based, and a careful analysis of the allegations embraced in it demonstrates that this objection is not well founded. This information is in harmony with precedents approved by this court. It is substantially in the same form as the information in the case of State v. Johnson, 115 Mo. 480, and State v. Jones, 191 Mo. 653, and both of those informations were held sufficient.

II.

It is insisted by appellant that the court committed error in the admission of the statement of William Harnann, the father of the prosecuting witness, to the effect that he did not give his consent to his daughter going away with thq defendant. It is sufficient to say of this objection that even conceding that this statement was immaterial,, the admission of that testimony does not constitute reversible error, and in our opinion it was not incompetent to permit the father to say that he did not consent to the acts done by the defendant.

III.

It is next earnestly urged by counsel for appellant that the admission of the records of the St. Louis Circuit Court and of the warden of the Missouri penitentiary, which showed a conviction, sentence and discharge of one William Baldwin upon a charge of rape, committed some time prior to the date alleged in the information of the taking away of the prosecuting witness for the purpose of concubinage, without identifying the defendant as being the same William Baldwin, constitutes such error as would authorize the reversal of this judgment. The defendant, while on the witness stand, admitted that he had been convicted of an offense prior to the one charged in the information, and while it is true that he did not state what the offense was, yet this, with the records as introduced showing that a defendant, William Baldwin, was convicted and sentenced and discharged from the penitentiary for the crime of rape, in the absence of any testimony to, the contrary, was sufficient to submit that question to the jury and authorize them to find such fact against the defendant.

■ At this age of our jurisprudence, in the administration of the laws of the State, we have reached the commendable stage that practical views must be taken in the trial of canses. Upon this trial the records were introduced showing that William Baldwin had been convicted, sentenced to the penitentiary and discharged therefrom for the commission of the offense of rape. There was no pretense, not even a suggestion or intimation, that the defendant charged in the information now before ns was not the same William Baldwin, hence we are of the opinion that this contention is highly technical, and we are unwilling to disturb this verdict upon that ground.

IY.

Appellant next insists that the court committed error in giving the second instruction to the jury. This instruction substantially told the jury that even if they should find that the prosecuting witness, Florence Hamann, was of unchaste character and had previously had sexual intercourse with the defendant, yet that state of facts did not constitute any defense to this action or prosecution. It is sufficient to say of this instruction that in cases of this character it has met the approval of this court.

In State v. Adams, 179 Mo. 334, the trial court gave a similar instruction to the one now under consideration. The jury were told in that case that should they believe from the evidence that the prosecuting witness was of easy virtue, or had previously had sexual intercourse with defendant, or had consented to go away with defendant, or that she consented to have sexual intercourse with defendant, yet none or all of these facts would constitute any defense to this prosecution. In that case all of the instructions were in judgment before this court, and the conclusion reached was that there was no reversible error in the record and the judgment was affirmed.

Complaint is also made to the third instruction given by the court to the jury. This instruction was as follows:

“By the word ‘concubinage,’ as used in the information and in these instructions, is meant the act or practice of a. man cohabiting in sexual intercourse with a woman: — a female with whom he is not married.
“If the jury believe and find from the evidence that the defendant, William Baldwin, did take the prosecuting witness, Florence Hamann, from her father, and that she was at the time a female under the age of eighteen years, for the purpose of cohabiting with her in sexual intercourse for any length of time for more than one single act of sexual intercourse, then the defendant is guilty of the crime charged in the information.
“If you find that the defendant did not so take the' said Florence Hamann from her father, or did not take her for the purpose or with the intent to practice sexual intercourse with her, as explained in these instructions, or if you find that said Florence Hamann was at the time eighteen years of age, or over, then the defendant is not guilty of the crime charged, and you will so find.”

It is sufficient to say of this instruction that what was said as to the second instruction is equally applicable to this one. In State v. Adams, supra, an instruction substantially similar to instruction number 3, given in the case at bar, met the approval of this court. We see no valid legal reason for departing from the conclusion reached in that case.

V.

It is earnestly insisted that the court committed error in the giving of instruction number 4. The complaint of error in that' instruction is directed specially to the last paragraph, which is as follows: “It is not necessary that the defendant should have used any physical force in taking the said Florence Hamann away; it is sufficient in law if you find and believe from the evidence that defendant induced or persuaded the witness, Florence Hamann, to go away with him from her father’s home for the purpose of having sexual intercourse with him, the defendant, William Baldwin. ’ ’

It is manifest that the court in this last paragraph was simply undertaking to direct the jury in respect to the nature and manner of the taking away of the prosecuting witness from her father, and, in order to fully appreciate that instruction, it must be considered in connection with the first paragraph, which reads as follows: “The court further instructs the jury that in order to find the defendant guilty it is not necessary that the jury should find and believe from the evidence that the defendant, William Baldwin, took said Florence Hamann, the prosecuting witness, from the immediate possession, house or home of her father, William Hamann, but it is a sufficient taking away if the defendant took her, the said Florence Hamann, from the control and possession of her father, and took her out of the neighborhood in which she had lived prior thereto, so that her whereabouts were unknown to her father, the said William Hamann, without his consent. ’ ’

We are of the opinion that when the first and second paragraphs of this instruction are read in connection with all the other instructions in the case it does not constitute reversible error. While it may be that it would have been more in harmony with legal principles to have limited the second paragraph to an explanation of the manner of the taking away of the prosecutrix from her father, yet we are unwilling to say that the additional words used in that paragraph constitute such, reversible error as would authorize this court to reverse this judgment.

In State v. Johnson, supra, the first instruction on the part of the State in that case told the jury that if the defendant’s purpose in taking the prosecuting witness away was to cohabit with her for a single night, then such taking away was for the purpose of concubinage within the meaning of the statute. The court in that case, speaking through Judge Burgess, in treating of this instruction, said substantially that admitting that the instruction is subject to the objection urged against it, and that the taking away for one act of intercourse or for one night does not come within the meaning of the statute and does not constitute the offense charged, yet when taken in connection with the other instructions it could not have misled the jury.

VI.

It is next contended that the verdict of the jury is so informal as to render it insufficient to support the judgment. "We quoted the verdict in the statement of this case, and while technically it is not in the best form, yet when the jury found the defendant guilty of habitual criminal and taking away a female for the purpose of concubinage, as charged in the information, it cannot be otherwise interpreted than that their reference to habitual criminal meant a finding of a former conviction, as charged in the informa- * tion. In other words, the jury saw proper to call the charge of a former conviction, sentence and discharge from the penitentiary habitual criminal, and they found that he was guilty of habitual criminal and taking away a female, etc., as charged in the information.

It was not essential that the jury should make a specific finding of a former conviction. It was only necessary to make such finding as would clearly indicate that in their finding they embraced the., finding that the defendant had been formerly convicted, etc., as charged in the information. No one can read this verdict without reaching the conclusion that the jury found the defendant guilty of having been formerly convicted and sentenced to the penitentiary and discharged therefrom. We are unwilling to arrest this judgment or to in any way interfere with it on this ground.

VII.

Appellant insists that the court committed error by its failure to require the jury, in its instructions to them, to find that the defendant was not married to the prosecuting witness. It is true that the instructions are open to this objection; however, in our opinion, it does not constitute reversible error. There was no pretense during the progress of this trial that the defendant and the prosecuting witness were married, and all the facts developed at the trial, beyond any sort of question, show that they were not married. The defendant himself admitted to Mrs. Beamer that the prosecuting witness was not his wife. In addition to this, the defendant’s own witness, Anderson, testified that he was married to the prosecuting witness. In fact there was no issue upon the question of the defendant and the prosecuting witness being married or not married. It was practically conceded by the defendant and his counsel, and there is an entire absence of any testimony to the contrary, that the defendant and the prosecuting witness were not married. Therefore the failure of the court to require'the finding of a fact which was practically admitted all through the trial, we do not think constitutes such error as would authorize the reversal of this judgment.

VIII.

Finally, it is earnestly contended by learned counsel for appellant that the evidence in this cause is insufficient to support the finding of the jury. Upon that question it is sufficient to say that if the testimony on the part of the State was relied upon by the jury, it furnished ample support for the conclusions they reached. It goes without saying that if they believed the testimony as introduced by the defendant he was entitled to an absolute acquittal; but at last, it is for the jury to settle this conflict. They had the witnesses before them and a much better opportunity to judge of their credibility and the weight to be attached to their testimony than this court, and the rulings of this court are uniform that where there is substantial testimony to support the verdict it will not be disturbed on the ground that the testimony is conflicting. The evidence introduced upon the part of the State showing the conduct and actions of the defendant with this girl fully warranted the jury in finding the defendant guilty of the offense charged.

Again, the nature and character of this offense must not be overlooked. Judge Gantt, in State v. Knost, 207 Mo. 18, reviewed all of the authorities as to the essential elements of this offense, and after the citation of a number of cases, he said: “These cases all hold that the gravamen of this offense is the purpose or intent with which the enticing and abduction are done, and hence the offense, if committed at all, is complete the moment the subject of the crime is removed beyond the power and control of her parents or of others having lawful charge of her, whether any illicit intercourse ever takes place or not. Subsequent acts are only important as affording the most reliable means of forming a correct conclusion with respect to the original purpose and intent of the accused.” Citing State v. Bussey, 58 Kan. 679.

We see no necessity for pursuing this subject further. We have carefully analyzed in detail the disclosures of the record and have given expression to our views upon the legal propositions involved, which results in the conclusion that the judgment of the trial court in this cause should he affirmed, and it is so ordered.

All concur.


author: GANTT, J.

text:
    THE STATE v. TONEY FOLEY, Appellant.
    Division Two,
    November 24, 1908.
    NO BILL OF EXCEPTIONS. Where no hill of exceptions was filed, and the record proper is free from error, the judgment will he affirmed.
    Appeal from St. Louis City Circuit Court. — How. Matt. G. Reynolds, Judge.
    Affirmed.

      Herbert S. Hadley, Attorney-General, and Frank Blake, Assistant Attorney-General, for the State.
    The information is sufficient. R. S. 1899, sec. 1849; Kelley’s Criminal Law, sec. 580; State v. Freeman, 21 Mo. 480. There being no error in the record, an affirmance of the judgment is asked.
   GANTT, J.

From a conviction in the circuit court of the city of St. Louis for a felonious assault upon Edwin McClentick, the defendant appealed to this court.

Motions for new trial and in arrest of judgment were filed in due time and overruled, hut no hill of exceptions was filed in the case. The information is sufficient and the arraignment and the trial appear to have been regular in all respects. There being no error in the record proper, the judgment must be and is affirmed.

Fox, P. J., and Burgess, J., concur.


author: BURGESS, J.

text:
    THE STATE v. A. B. McMAHILL, Appellant.
    Division Two,
    November 24, 1908.
    1. APPELLATE JURISDICTION: Felony Case. Where the prosecution is for the commission of a felony, the appeal is to the Supreme Court, although by the verdict defendant’s punishment is assessed at a fine of one hundred dollars.
    2. PRESENCE OF DEFENDANT: Proof. It devolves upon the State to prove that defendant was present at the time and place of the shooting, but this fact, like any other in the case, may be shown by facts and circumstances. ' It is not necessary that it be proven by direct and positive testimony. And the weight of such evidence is for the jury.
    3. -: -: Sufficient. The prosecuting witness’s father had rented land from the defendant, and raised a crop of corn thereon, and they had recently had a lawsuit over some wheat. About two weeks before the shooting, the father met defendant on the road and told him he would send his boys in a short time to gather the corn, and thereupon defendant said, “I give you warning right now to stay oft of that place, you and your boys; if you don’t, you will take the eonsequenees.” The three boys went to the field to gather the corn, and as the prosecuting witness was returning with a load and was in the public road near defendant’s house, someone fired a shot at him, some of the shots striking the witness and others the wagon. He looked up and saw smoke near the northwest corner of the house, but did not see the person who had fired the shot. He drove on and when about opposite the southwest corner of the house another shot was fired, the shots scattering around him, and again he saw the smoke near the house, but did not see the gun or defendant. He drove - home, then returned to the field and told the other boys he had been shot at, and as they approached defendant’s house, about forty-five minutes after the .other shots had been fired, they saw defendant standing near his house with a shot-gun in his hands, and fearing trouble they drove back. Held, that the evidence tends to show that defendant fired the shots, and is sufficient to sustain the verdict.

      Transferred from Kansas City Court of Appeals.
    Affirmed.

      Crawley & Bucher for appellant.
    In order to convict, the prosecution was bound to prove that the accused was present at the time and place of the alleged shooting. State v. Taylor, 118 Mo. 153; State v. Howell, 100 Mo. 28; State v. Wollard, 111 Mo. 248; State v. Lewis, 69 Mo. 92; 1 Bish.,'Crim.Pro. (3 Ed.), sec. 1062; WBarton, Crim. Ev., sec. 333. There is not a scintilla of evidence tending to show appellant’s presence at the place of the shooting at or before the time of its occurrence. The lack of this essential link cannot be supplied by inferences or conjectures drawn from the mere fact of his presence there forty-five minutes later. State v. Morney, 196 Mo. 50.

      Herbert 8. Hadley, Attorney-General, and Frank Blake, Assistant Attorney-General, for the State.
    In criminal cases the Supreme Court will not weigh the evidence where there is sufficient evidence, if believed by the jury, to justify their verdict of conviction, State v. Eichmond, 186 Mo. 71; State v. Smith, 190 Mo. 706; State v. Urspruch, 191 Mo. 43; State v. Tetrick, 199 Mo. 100; State v. Williams, 199 Mo. 137. When the evidence is circumstantial, the weight of it is for the consideration of the jury. State v. Delcore, 199 Mo. 228.
   BURGESS, J.

This is an appeal from a verdict and judgment of the Chariton Circuit Court convicting the defendant of felonious assault with intent to kill one Sam Staples, and assessing his punishment at a fine of one hundred dollars. The appeal was improperly taken to the Kansas City Court of Appeals, from which it has been transferred here, for the reason that said court was without jurisdiction, the prosecution being for the commission of a felony.

The defendant, by his counsel, expressly waives and withdraws all objections made and exceptions saved at the trial, save his exception to the action of the court in refusing to give a peremptory instruction, asked hy him, directing an acquittal on the ground of insufficient evidence.

The facts disclosed by the record are, in substance, as follows:

The defendant and the prosecuting witness, a boy of about eighteen years, were neighbors living on adjoining farms in Chariton county. J. S. Staples, father of the prosecuting witness, had rented a piece of land from the defendant, and had put in a crop of corn. There was considerable ill-feeling between the parties, resulting from a lawsuit over a crop¡ of wheat raised by Staples on ground rented from the defendant. Some two or three weeks before the shooting, J. S. Staples met the defendant upon the public road, and told him that he would send his boys to gather the corn crop in a short time, whereupon the defendant said, “I give you warning right now to stay off that place, you and your boys; if you don’t you will take the consequences.”

On November 29, 1907, Sam Staples and his two brothers, Alex and James, also Frank Mason, all knowing of the threat which had been made by the defendant, started to gather and haul away said corn. The only convenient way by which to enter or leave the corn field was by a road which led by the defendant’s house. About four o’clock that evening, Sam Staples, the prosecuting witness, started homeward from the field, his wagon loaded with corn. He was sitting behind the bump board in the wagon, and when near the defendant’s house some one fired a shot at him. The shot struck the bump board, which concealed and protected his body, a few of the shot going through a crack in the board, penetrating his clothing and blistering his back. When this shot was fired, Sam got np, looked around and saw smoke near the northwest corner of defendant’s house, but did not see the person who fired,the shot. He drove on, and when about opposite the southwest corner of the house a second shot was fired at him, the shot scattering around him. Again he saw smoke near the defendant’s house, but failed to see the gun or the person who shot it. The reports of these shots were heard by Frank Mason who was working in the cornfield. Sam drove home, armed himself with a shotgun, mounted a horse, went back to the field and told the other boys that he had been shot at by the defendant. Soon afterwards the boys started from the field with another load of corn, and when they had approached within a hundred yards of the defendant’s house Sam Staples and Frank Máson saw the defendant standing near his house, with a shotgun in his hands, and, fearing trouble, they turned the team aside and went home another way, by passing through a fence dividing the field from Mr. Staples’ land. It appears from the evidence that about forty-five minutes had elapsed between the time the shots were fired and the time the defendant was first seen by the prosecuting witness and Frank Mason. On their way home, and when about a half mile distant from the defendant’s home, the boys looked back and saw a man whom they supposed was the defendant standing near his house. These are all the facts of any consequence discovered by the testimony. According to his own testimony, the only reasons which the prosecuting witness had for thinking that the defendant was the person who shot at him were that the defendant had made threats, and he, the prosecuting witness, did not know anybody else in the country that would want to shoot him.

It may be conceded, as contended for the defendant, that in order to convict the defendant of the crime charged against him, it devolved upon the State to prove that he was present at the time and place of the shooting; but this, like any other fact in the ease, conld be shown by facts and circumstances, if sufficient. It is not at all necessary that it be proven by direct and positive testimony. Now, at the outset, it appears that there was ill-feeling between the family of J. S. Staples, father of Sam Staples, and the defendant, growing out of a lawsuit; that about two weeks before the shooting, J. S. Staples met the defendant upon the public road and told him that he would send his boys to gather the corn crop in a short time, and that the defendant replied, “I give you warning right now to stay off that place, you and your boys; if you don’t you will take the consequences. ’ ’ This threat made by the defendant, and the fact of the existence of animosity between him and the Staples family, taken in connection with the other facts in evidence, especially the time and place of the shooting, and the presence of the defendant, with a gun in his hand, near the place from which the shots were fired, forty-five minutes after the shooting occurred, tend to show, we think, that the defendant is guilty as charged.

State v. Morney, 196 Mo. 43, cited by the defendant, was not nearly so strong a ease for the State as the case in hand. In that case there was no proof of threats or ill-will on the part of the defendant toward the owner of the property which was burned, nor proof that he was in the vicinity for many hours before the fire occurred.

Our conclusion is that there was ample evidence to take the case to the jury, who were the sole judges of its weight, and the court having approved of the verdict we are not inclined to interfere.

The judgment is.affirmed.

All concur.


text:
    THE STATE v. WILL HAMILTON, Appellant.
    Division Two,
    November 24, 1908.
    LARCENY: No Bill of Exceptions: Appellate Practice. Where no bill of exceptions duly signed and authenticated by the judge of the trial court was filed, there is nothing before the appellate court except the record proper; and if the information properly charges the defendant with the offense (grand larceny) of which he was convicted, and the jury was impaneled in accordance with the provisions of the statute, and the verdict returned by them is in proper form, and the judgment and sentence fully meet the requirements of the law, the judgment will be affirmed.
    Appeal from Pettis Circuit Court. — Hon. Louis Hoffman, Judge.
    AEBTfiMED.

      Herbert S. Hadley, Attorney-General, and Frank Blake, Assistant Attorney-General, for tlie State.
    (1) The information is sufficient. R. S. 1899, sec. 1898; Kelley’s Criminal Law, sec. 642, p. 428. (2) The purported bill of exceptions is not signed1 by the trial judge, and there is nothing before the court but the record proper. State v. Collins, 196 Mo. 87; State v. Briscoe, 135 Mo. 660. (3) The record proper does not show that the bill of exceptions was filed, and the bill cannot be considered. State v. Wilson, 44 Mo. App. 136; School District v. Boyle, 113. Mo. App. 340; Bower v. Daniel, 198 Mo. 289; State v. Walker, 194 Mo. 367.
   FOX, P. J.

This cause is now pending in this court upon appeal upon the part of the defendant from a judgment of conviction of grand larceny.

On April 30, 1907, the prosecuting attorney of Pettis county filed an information against defendant charging him with grand larceny. The defendant was, duly arraigned and entered Ms plea of not guilty, and on January 14, 1908, he was put upon his trial before a jury, and they returned a verdict of guilty, and assessed his punishment at two years in the peni-. tentiary. Timely motions for new trial and in arrest of judgment were filed and by the court overruled.

An examination of the record discloses that there was no bill of exceptions duly signed and authenticated by the trial judge filed in this cause, hence the action of the court during the progress of the trial has not been preserved for review by this court, and the cause is now before us simply upon the record proper. Directing our attention to this record wefind the information properly charged the defendant with the offense of which he was convicted. The jury was impaneled in accordance with the provisions of the statute, and the verdict as returned by them is in proper form, and the judgment and sentence as disclosed by the record fully meets the requirements of the law; hence there is nothing for us to do except to announce the affirmance of the judgment. It is therefore ordered that the judgment of the trial court in this cause be and is hereby affirmed.

All concur.


text:
    THE STATE v. LEWIS BARTON, Appellant.
    Division Two,
    November 24, 1908.
    1. SUFFICIENCY OF EVIDENCE. Where there is substantial evidence tending to establish defendant’s guilt, and evidence to the contrary, the court will not interfere with the jury’s verdict of guilty. It is for the jury to pass upon the weight of the evidence.
    2. ALIBI: Instruction: Guilty Unless Absent. Where, when all the instructions are read together, it is plain that the court required the jury to find beyond a reasonable doubt that defendant committed the offense, it is not an assumption that defendant committed the crime to instruct the jury on the subject of alibi to the effect that if they entertain a reasonable doubt that defendant was not present at the time and place, they will acquit him. The instruction does not in effect tell the jury that unless they have a reasonable doubt of the appellant having been present at the time and place where the crime was committed they will find him guilty, without requiring them to find a crime had been committed; nevertheless, i't would have been better to have modified the instruction in that respect
    3. CIRCUMSTANTIAL EVIDENCE: Instruction: Consistent with Guilt, Etc. Where there is no direct evidence of defendant’s guilt, but the State’s case consists of circumstances strongly tending to establish his guilt, it is error, in a felony case, to refuse to instruct the jury that before they can convict the defendant on circumstantial evidence alone they must find the circumstances to be consistent with defendant’s guilt and inconsistent with any reasonable hypothesis of his innocence.
    4. -: -: -: Crude Instruction. And while the instruction asked is far from being a model, yet if the principle is invoked, it is the duty of the court to give a correct instruction on the subject.
    Transferred from the St. Louis Court of Appeals.
    Reversed and remanded.

      8. L. Clark and -7. B. Daniel for appellant.
    (1) The court erred in refusing appellant’s offered instruction on circumstantial evidence, as in this case all the evidence was circumstantial. State v. Moxley, 102 Mo. 347; State v. Woolard, 111 Mo. 248. And although the offered instruction was not properly worded, the court should have given a correct instruction on the point raised thereby. State v. Clark, 147 Mo. 20; State v. Reed, 154 Mo. 122; State v. Taylor, 118 Mo. 153; State v. Lowe, 93 Mo. 547; State v. Luke, 104 Mo. 563; State v. Rufus, 149' Mo. 406; State v. Moore, 160 Mo. 443. (2) The verdict is against the weight of the evidence.

      G. D. Sloan and B. I. January for the State.
    (1) The instruction given by the court on the defense of alibi was proper and reasonable and told the jury that if they had a reasonable doubt of the presence of the defendant at the time and place where the calf was alleged to have been killed they should acquit him, but that such reasonable doubt should be a substantial doubt and not a mere possibility that he may have been at another and different place. State v. Nueslein, 25 Mo. 123; State v. Sacre, 141 Mo. 64; State ■ v. Cushenberry, 157 Mo. 168; State v. Jones, 153 Mo. 461. Appellant was not entitled to an instruction on the question of alibi because his own admissions place him at the time and place where the alleged offense was said to have been committed. State v. Thornhill, 174 Mo. 364. (2) It was for the jury to pass upon the weight of the evidence and this court will not disturb their finding, unless there is an entire failure of proof, or the evidence on the part of the State is of such a weak or flimsy character as to authorize the inference that the finding was the result of passion, prejudice or mistake. State v. Howell, 100 Mo. 628; State v. Crimes, 101 Mo. 188; State v. Hicks, 92 Mo. 431.
   GANTT, J.

This is a prosecution commenced on the 13th of November, 1905, by the prosecuting attorney of Reynolds county, Missouri, in which he charged the defendant with feloniously, willfully and maliciously killing a bull calf, the property of Belle Dunn, at said county of Reynolds on the 7th of November, 1905.

The defendant was tried before a jury on the 29th day of May, 1906, and found guilty, and his punishment assessed at a fine of fifty dollars. His motions for new trial and in arrest of judgment were overruled and he appealed to the St. Louis Court of'Appeals, and that court has transferred the cause to this court because the prosecution is for violation of section 1987, Revised Statutes 1899, which is a felony under said section. As it is the contention of the defendant that the evidence was wholly insufficient to sustain the verdict, it will he necessary to make a somewhat full statement of the testimony.

Mrs. Belle Dunn testified that she was the owner of the calf alleged to have heen shot and killed by the defendant. She was the step-mother of the wife of the defendant, and on the day that the calf was killed, she was occupying a portion of the same farm on which defendant was living. The defendant had leased the farm from her husband before he died in the previous spring. She testified that about a week before the calf was killed, the defendant said to her he would kill her calves if they were not taken out of his field. On November 8, 1905, the calf mentioned in the information was found dead in the field occupied by the defendant, having been shot with a shotgun.

Myers, a witness for the State, testified that on the evening of November 7, 1905, when the witness was about a quarter of a mile from the house of the defendant and traveling in the direction of the house, he heard the report of a gun, which he judged to be a shotgun, in the direction of the field of the defendant where the calf was found dead the following morning. The witness drove on up to the house of the defendant and stopped and talked to the defendant, and in that conversation, the defendant said he had been out in his field, the same in which the calf was killed, and had been driving Belle Dunn’s calves out of his corn, and had just returned. This was about sundown of that day.

H. L. Fitz, the officer who arrested the defendant, testified that when he arrested the defendant he said that he told the woman he would kill the calf if she did not take it out of the corn, and that he had taken his calf out and wanted her to take hers out. At first he said he did not kill the calf, but he told her he would kill it if she did not take it out of his corn, that he had just told her that to give her a scare so she would take it out.

'William Turner, who kept a store near the farm of the defendant, testified that he purchased a fresh hide of a calf from Mrs. Dunn about the time the calf was alleged to have been killed, and it looked as if it had a hand full of shot scattered over it.

The defendant testified in his own behalf and denied the killing of the calf. Admitted that he had a conversation with the witness Myers at his home on the farm on the evening on which the calf is alleged to have beeen killed, and that Myers was at his house late that afternoon. He stated that he had returned to his home from his father’s about four o’clock in .the afternoon, and went down to Turner’s store for a little while, and then went over across the creek into the cornfield to get some fodder to feed his horses. He denied making the statement to the witness Myers to the effect that he had been down driving Mrs. Dunn’s calves out of his field. He testified further that if he made the statements attributed to him by Mrs. Dunn and Mr. Fitz, he had no recollection of them.

Mrs. Nora Barton, the wife of the defendant, testified that after their arrival at home that afternoon, the defendant was not out of her sight during the afternoon and was not away during the night, and that the defendant did not have his gun out of the house that afternoon; that she went with him to the field where they got the fodder and fed the team; that they did not take any gun with them, and she neither saw any calves or calf that afternoon, nor heard any shot fired.

There was evidence also on the part of the defendant tending to impeach the character of Mrs. Dnnn for chastity and veracity, but it would seem that the most of this unfavorable reputation had grown out of a suspicion that she had not been married to Mr. Dunn, but it further appeared that Mr. Turner had written to the recorder in St. Francois county and ascertained that the marriage certificate was duly recorded in said county. Practically all the evidence tended to show that there was no cause whatever to impeach her character after her marriage to Mr. Dunn. On the part of the State an attempt was also made to impeach the character of the defendant, but this resulted merely in showing a bad reputation for quarrelsomeness rather than for truth and veracity.

I. It was for the jury to pass upon the weight of the evidence, and this court will not disturb their finding unless there is entire failure of proof, or the evidence on the part of the State is of such a flimsy character as to authorize the inference that the finding was the result of passion, prejudice or mistake. That the calf was killed in the field of the appellant, and was shot with a shotgun, there is practically no dispute. There is not the least evidence tending to show that the owner herself had killed it, or any suggestion that any other person had a motive for killing the calf except the defendant. The evidence shows that the defendant had threatened to kill the calf if it was not taken out of his cornfield, and that he was at home on his premises that afternoon was established by his own evidence. The witness Myers testified that he heard a shot that afternoon down in the field where the calves were feeding, and soon thereafter he drove up to the defendant’s house, and the defendant stated to him that he had just been down in the field driving Mrs. Dunn’s calves out. It is'true the defendant denies the killing of the calf and his wife testified that fie did not have the gun wfien fie was down in tfie field tfiat afternoon, hut tfie weigfit of this evidence on both sides.was a matter for tfie jury, and we think the jury were authorized, if they believed tfie evidence for tfie State, to> find tfiat tfie defendant killed, tfie calf.

II. Tfie court in its instructions, among others, gave the following:

“You are further instructed tfiat one of tfie defenses interposed by tfie defendant is what is known as an alibi, by which, is meant a claim on fiis part that fie was at another and different place than tfiat at which tfie alleged crime was committed, at tfie time wfien it was in fact committed. And in tfiat connection, you are- instructed tfiat if you have reasonable doubt of the presence of tfie defendant at tfie time and place where said crime was committed, you will acquit him, but you are instructed tfiat a reasonable doubt by you of tfie defendant having been present ■ at tfie time and place where said crime was committed to authorize you to acquit him on tfie ground of your having such reasonable doubt should be a substantial doubt by you of tfie defendant having been present at tfie time and place where such exime was committed and xxot a mere possibility tfiat fie may have been at another and different place .than tfiat at which said crime was committed at tfie time wfien it was committed.”

The defendant complains of this instruction tfiat it-in effect tells the jury tfiat unless they have a reasonable doubt of tfie appellant having* been present at the time and place .where tfie calf was killed, they will find him guilty without requiring them to find tfiat a crime had been committed, or if committed that tfie appellant committed it. We think this is a hypercritical objection. While it is true, it would have been better if tfie court had modified tfie instruction with a phrase, “If such offense had been committed by any one,”, when all the instructions are read together, as they must be, it is plain that the court required the jury to find beyond a reasonable doubt that the defendant committed the offense, and it was not an assumption that the defendant did in fact commit !the offense, unless the jury could find that he was absent at the time. [State v. McGinnis, 158 Mo. l. c. 122, 123; State v. Hale, 156 Mo. 102.] We do not think that the giving of this instruction would justify the reversal of the judgment.

III. The defendant requested the- court “to instruct the jury that before they could convict on circumstantial evidence alone, such circumstance should be so strong as to exclude every other reasonable hypothesis than defendant’s guilt, and must be consistent with defendant’s guilt.” There was no direct evidence that the defendant shot and killed the calf, but the State’s case consisted of circumstances strongly tending to prove-that fact. In State v. Moxley, 102 Mo. l. c. 388, a similar instruction was requested and refused by the court, and this court held that the refusal was .reversible error. The proposition- announced in the instruction' is one long recognized in the administration of criminal law, and one to which 'the defendant was clearly entitled. [State v. Woolard, 111 Mo. 248.] The instruction is not a model by any • means, but the principle having been expressly invoked by the defendant, the circuit court should have given a correct, instruction on this point. [State v. Clark, 147 Mo. 20; State v. Taylor, 118 Mo. 153.] The defendant was convicted of a felony upon circumstantial evidence alone, and we think that the refusal to give this instruction to which he was clearly entitled constituted reversible error, and for this error the judgment must be and is reversed-and the cause-remanded for a new trial.

Fox, P. J., and Burgess, J., concur.


text:
    THE STATE v. JOHN LONG, Appellant.
    Division Two,
    November 24, 1908.
    NO BILL OF EXCEPTIONS. Where no bill of exceptions was filed, and there is no error in the record proper of the trial of an appellant convicted of burglary, the judgment will be affirmed.
    Appeal from Monroe Circuit Court. — How. D. H. Eby, Judge.
    Affirmed.

      Herbert 8. Hadley, Attorney-General, and Frank Blake, Assistant Attorney-General, for the State.
    There is no hill of exceptions in this case. Monroe county is in the Tenth Judicial Circuit. The courts in this circuit are held in said county on the second Monday in April (April 9, 1906); fourth Monday in August (August 27, 1906), and the second Monday in December (December 10, 1906). Laws 1905, p. 119; Tt. S. 1899, sec. 1728. February 2, 1906, when the motion for new trial (according to the entry nunc pro tunc) was overruled, was jn the December term. The first entry in the record showing that time' was given to file the bill of exceptions was upon April 13, 1906 (the fifth day of of the April, 1906', term). Appellant should ’have filed a bill at the December term, and embodied that bill-in his final bill of exceptions. Smith V. Bauer, 166 Mo. 392; Barber Co. v. Ullman, 137 Mo. '543; State v. Larew, 191 Mo. 192. The filing of a motion in arrest, which is not determined till the term following that at which the motion for new trial is overruled, does not extend the time for filing the bill of exceptions till such later term. State v. Goehler, 193 Mo. 177; Cranor v. School District, 18 Mo. App. 397. Exceptions talen at a certain term must be preserved by bill filed at that term. E. S. 1899, sec. 728; State v. Ware, 69 Mo. 332. The order granting the original extension must be allowed during the term at which the exceptions were taken. Webster County v. Cunningham, 101 Mo. 642; State v. Jacobs, 39 Mo: App. 122; State v. Goehler, 193 Mo. 177.
   BURGESS, J.

At the December term, 1905, of the circuit court of Monroe county, under an information theretofore filed by the prosecuting attorney of said county, charging the defendant with feloniously and burglariously breaking into and entering a- certain drugstore and saloon, owned.by one O. P. Vaughn, with intent the goods, wares, merchandise and other valuable things, the personal property of said O. P. Vaughn, in said building kept, feloniously and burglariously to steal, the defendant was convicted and his punishment assessed at three years in the penitentiary. Having filed motions for a new trial, and in arrest of judgment, which were overruled by the court, the defendant appealed.

No bill of exceptions was filed.in this case.- There-, is, therefore, nothing before this court for review except the record proper, which, after careful examination, we find to be free from error.

The judgment is affirmed.

All concur.


text:
    THE STATE, Appellant, v. CLARENCE ACKERMAN.
    Division Two,
    November 24, 1908.
    1. PERJURY: Materiality. If the false statement made by a witness before a grand jury be circumstantially material or tends to support and give credit to tbe other testimony as to tbe main fact in issue; it is perjury.
    2. -: -: Illegal Sale of Liquors: Hauling Beer: Quashing Indictment, Where tbe grand jury were making an investigation of the sale of beer by Smith and Brent in Henry county outside of Clinton, false statements made by defendant to the effect that he did not receive from a saloon in Clinton thirty-five .cases of beer and haul them to Deepwater in the nighttime and deliver them to said Smith and Brent, were perjury.' The matters sworn to by him, though collateral to the main issue, namely, whether Smith and Brent had illegally sold intoxicating liquors, were material to that issue; and although insufficient of "themselves to establish their guilt, or even to prove that a crime had been committed, yet because of their circumstantial relation to other facts which would tend to establish the illegal sale, they were material, a link in the investigation, and a false answer as to them constituted perjury; and the court erred in sustaining a motion to quash an indictment charging that defendant- had falsely sworn that he did not haul said'beer.
    Appeal from Henry Circuit Court. — Hon. C. A. Denton, Judge.
    Reversed and remanded.

      Herbert 8. Hadley, Attorney-General, and Frank Blake, Assistant Attorney-General, for the State.
    (1) The indictment is sufficient. R. S. 1899, secs. 2033, 2039; State v. Faulkner, 175 Mo. 546; State v. Huckley,- 87 Mo. 414; Joyce on Indictments, p. 781. (2) It is.not .essential that the false statement tend directly to prove the issue. If it he circumstantially material, or if a true statement would form a link in the chain of evidence necessary to establish the offense, and tend to support and give credit to a witness in respect to the main fact, it is perjury. State v. Faulkner, 175 Mo. 568; State v. Day, 100 Mo. 242; Kelley’s Crim. Law, sec. 824, p. 555.
   GANTT, J.

On September 13, 1907, the grand jury of Henry county, Missouri, returned an indictment against the defendant charging him with having committed willful and corrupt perjury by testifying falsely in a proceeding before the grand jury of said county on the 12th of September, 1907. The defendant filed a motion to quash, the indictment, which was sustained by the' court, and a motion for a new trial was overruled and appeal granted to the State. The indictment is in the following form:

“State of Missouri, County of Henry, ss.
“In the Circuit Court, September Term, 1907.
“The grand jurors for the State of Missouri, duly impaneled, sworn and' charged to inquire within and for the body of the county of Henry, and State of Missouri, upon their oath present and charge: That at the county of Henry, and State of Missouri, on the 12th day of September, 1907, and during the September term, 1907, of said court, the grand jury of the State of Missouri, within and for the body of the county of Henry, were then and there duly and legally convened, having been' then and there duly and legally impaneled, sworn upon their oath, and charged according to law in said court, and that a certain complaint was then and there made and presented before said grand jury, against one Harve Smith and George Brent, for the offense of illegal sale of intoxicating liquor, including beer, committed by said Harve Smith and said George Brent, in the said county of Henry, outside of the city of Clinton, and that in the investigation and hearing of said complaints before said grand jury, so impaneled and sworn as aforesaid, it developed that on or about the night of the 17th day of June, 1907, one Clarence Ackerman, a drayman operating a dray wagon in said Henry county, between Clinton and Deepwater, hauled a dray wagon load of beer, said load of beer consisting of twenty-five or thirty cases of beer from the back door of J. N. Bixman’s dramshop^- in said city of Clinton, to the barn and residence of Harve Smith, in said city of Deep-water, and there unloaded the same, and that at various times since said 17th day of June, said Clarence Ackerman hauled loads of beer at night from Clinton for said Harve Smith, at Deepwater, consisting of fifteen to twenty cases of beer to the load, and that at various times prior to- said 12th day of September, 1907, said Clarence Ackerman hauled wagon loads of beer in cases from Clinton to and for George Brent of Deepwater.
“That at said investigation said Clarence Ackerman was duly summoned as a witness before said grand jury and did then and there personally appear as a witness before said grand jury in regard to said complaint, and that said Clarence Ackerman was then and there duly sworn by the foreman of said grand jury and took upon himself his corporal oath, the said foreman, to-wit, one Charles H. Williams, being then and there duly and legally authorized and empowered and having competent authority to administer’ the said oath to the said Clarence Ackerman, and that then and there it became important and was material to the issue and to the investigation of said complaints by said grand jury, whether said Clarence Ackerman had any knowledge of said transportation and hauling of beer from Clinton to Deepwater, and for whom the hauling was done, and the time and circumstances thereof.
“And then and there he, the said Clarence Ackerman, on his corporal oath and before said grand jury, did feloniously, falsely, corruptly, knowingly, willfully and maliciously depose and swear in substance and .to the effect- following: That he, never, at any time, hauled a dray wagon load of beer to Deepwater; that he never unloaded any beer at Harve Smith’s barn;, that'he never hauled anything for Harve Smith; that he never hauled ¡any beer for George Brent; that he never hauled any beer for Harve Smith; that he never made a trip to- Deepwater at night, whereas, in truth and in fact, the said Clarence Ackerman, on or about the 17th of June, 1907, hauled a dray wagon load of beer to= Deepwater; and whereas, in truth and fact, he did haul beer for George Brent; and whereas, in truth and fact he did haul beer for Harve Smith; and whereas, in truth and fact he did make trips to Deepwater at night, all of which the said Clarence Ackerman then and there well knew. And so the grand jurors, aforesaid, upon their oath aforesaid, do say that the said' Clarence Ackerman, at the county of Henry aforesaid, on the 12th day of September, aforesaid, in the year 1907, in the manner and form aforesaid, feloniously, falsely, knowingly, willfully and corruptly committed willful and corrupt perjury, contrary to the form of the statute, and against the peace and dignity of the State.
“Nicholas B. Conrad, Prosecuting Attorney.
“A true bill.
C. H. Williams,
Foreman of the Grand Jury. ’ ’

The defendant is not represented in this court by counsel and we must look to the grounds assigned in the motion to quash, as the basis of the judgment of the court in quashing the indictment. From these it appears that it was insisted by the defendant in the circuit court that, assuming the truth of all that was charged against the defendant, the matters sworn to by him before the grand jury were wholly immaterial’ and collateral to the question or matter under consideration by the grand jury, to-wit, the illegal selling of intoxicating liquors, including beer, by Harve Smith and George Brent in said county, and therefore could not form the predicate for a charge of perjury.

It appears from the averments in the indictment that the grand jury had been duly and legally selected, impaneled and sworn in the circuit court of Henry county at its September term, 1907, and that a certain complaint'had been presented to them against Harve Smith and George Brent for illegally selling intoxicating liquors, including beer, in said county of Henry outside of the city of Clinton, and that the defendant Ackerman had been duly summoned as a witness before the said grand jury in regard to said complaint and had been sworn by the foreman of the grand jury, and that it was then and there material and important to know whether Ackerman had any knowledge of the transportation and hauling of beer from Clinton to Deepwater and for whom the hauling was done and the time and circumstances thereof. The indictment thus names and particularizes the body before whom the alleged perjury was committed, and the investigation of the guilt of persons' named therein, and the materiality of the evidence in said investigation by the grand jury, and that the oath was administered to the defendant by the foreman, and the indictment then sets out the evidence which the defendant gave before the grand jury and then proceeds to assign perjury upon this evidence. In substance it is alleged that the defendant then and there before the said grand jury feloniously, falsely, corruptly, knowingly, willfully and maliciously did swear and testify that he never, at any time, hauled a wragon load of beer to Deepwater, and never unloaded any beer at Harve Smith’s barn; that he never hauled any beer for George Brent and that he never made a trip to Deepwater at night, whereas, in truth and in fact, the defendant did on or about the 17th of June, 1907, haul a dray load of beer to Deepwater and unloaded the same at Harve Smith’s barn, and that he did haul beer for George Brent and frequently made trips to Deepwater at night. It would seem that the contention of the defendant is that, because the indictment did not allege any false evidence on the part of the defendant -as to. the actual illegal selling of beer or other intoxicating liquors by the said Smith and Brent, therefore, the fact of the knowledge of the defendant of the receipt of large quantities of beer by the said Brent and Smith, on the part of the defendant, ánd of his having hauled the same to Deepwater, the place of sale, in the* nighttime, and delivered the same to the said Smith and Brent, was wholly immaterial, and the circuit court took this view of the law, and held that even if the testimony of the defendant was knowingly false and corrupt it could not constitute perjury. We think this was a mistaken view of the law..

In State v. Faulkner, 175 Mo. 546, we had occasion to investigate the sufficiency of a charge of perjury committed before a grand jury, and in the course of the opinion in. that case, we followed with approval the opinion of this court in Ward v. State, 2 Mo. 120, wherein it is said.: “It is a solemn and important duty that every citizen owes to his country to give evidence in courts of justice against offenders against the peace and good order of. the community.” And in the Faulkner case, we reiterated the ruling made by this court in State v. Terry, 30 Mo. 368, that perjury can he committed before a grand jury in its investigation of crime, and said: “Any knowledge or information possessed by him [the defendant in the case] concerning 'the existence of such fund and the purposes for which it was to hei used’ was material to the inquiry the grand jury was then making. It was the natural and orderly way in which the grand jury would ascertain the material facts upon which to base-an indictment or to refuse to find one. It was their sworn duty to obtain the legal evidence to ascertain the witnesses by whom the charge could be* substantiated, and to endorse their names on the indictment, not alone for the benefit of the prosecuting attorney, hut for the protection of the person charged »in the indictment in the preparation of his defense. This inquiry and the defendant’s answer, taken in connection with the allegations of the indictment, discloses the materiality of the question and answer to the inquiry then being made. ’ ’

So, in this case, in the investigation of the charge that Smith and Brent had been guilty of illegal sales of intoxicating liquors, including beer; that the same had been sold in said county outside of Clinton, the county seat, we think it was a perfectly natural thing for the grand jury to seek evidence as to the possession of such liquor by the said Brent and Smith at the time of the alleged sale, and they had the right to require the defendant in this case to disclose the fact, if such it was, that he had in the month of June, 1907, hauled a dray load of beer from a saloon in the city of Clinton to the residence of the said Smith in the city of Deepwater, and also wagon loads of beer from Clinton to the said Brent in Deepwater. It was not necessary that the said defendant should have been present and witnessed sales of the said beer to other persons in Deepwater by the said Brent and Smith, or that they should have told the defendant of such sales. It is not to be expected that any one witness before a grand jury, any more than in the trial of a case in court, will' be able to depose to the whole case. As said by this court in State v. Day, 100 Mo. l. c. 249, “Nor is it necessary in such cases that the false statement tends directly to prove the issue in order to sustain the indictment for perjury. If it be circumstantially material or tends to support and give credit to the witness in respect to the main fact, it is perjury.” And to the same effect is State v. Wake-field, 73 Mo. 549, and the cases therein cited. In the same case, 9 Mo. App. 326, it was said: “Each fact, although insufficient of itself alone to prove even that a crime has been committed, is yet, because of its relation to other facts in proof, material to the issue or investigation. Were it otherwise, there might be false wearing as to every link in the necessary chain of evidence, and yet no perjury at all. The law offers no such immunity to those who would falsely defeat the ends of justice.” . Especially is this true in an investigation before a grand jury. Their sworn duty is to inquire and true presentment make. They cannot tell in advance of inquiry whether in fact an offense has been committed or who committed it. They can only act upon testimony given under oath by witnesses produced, sworn and examined before them, or upon legal documentary proof. They are at liberty to inquire for evidence to establish a charge link by link and are entitled to true answers. In determining whether there was sufficient evidence upon which to base an indictment against Smith and Brent or either of them for the illegal sale of intoxicating liquor in said county, it was important and material, if such was the fact, that they should know that the defendant in this case did haul large quantities of beer and intoxicating liquors from Clinton to Deepwater where the alleged illegal sales had been made by Brent and Smith, and especially if these liquors had been hauled by the defendant in the nighttime under the cover of darkness. Of course if it should have after-wards turned out in the course of the investigation that Brent and Smith or either of them were duly authorized and licensed to sell said intoxicating liquors and beer at Deepwater, then, the fact that the defendant had hauled and delivered said liquors to them, had no circumstantial connection with an illegal act, for then no crime had been committed, and there was no reason why the defendant should seek to hide that fact from the grand jury, but if in the further investigation of said offense it should turn out that neither Brent nor Smith were licensed to sell said liquor in said county, or that perchance the Local Option act was in force in said county outside of the city of Clin ton, and therefore Smith and Brent could not be lawfully licensed or authorized to sell said liquors in said county, but had done so, then the fact of their being possessed of large quantities of liquors, and that the defendant had been the carrier which transported said liquors to them, was a most material fact for the grand jury to know, and if the defendant willfully and corruptly testified before the grand jury that he did not haul said liquors to Brent and Smith then he was guilty of perjury.

In our opinion the circuit court erred in quashing this indictment on the ground of the immateriality of the alleged testimony of the defendant before the grand jury. And hence the judgment must be reversed and the cause remanded to the circuit court for further proceeding. And it is so ordered. This case is brought to this court by appeal on the part of the defendant from a judgment of conviction in the Phelps circuit court of the offense of grand larceny.

Fox, P. J., and Burgess, J., concur.