text:
    THE STATE v. BEN BRUTON, Appellant.
    Division Two,
    December 9, 1913.
    1. SEDUCTION: Corroboration of Prosecutrix. By statute the testimony of the prosecutrix in a prosecution for seduction must be corroborated as to the promise of marriage; and while the evidence of corroboration need not be such as, standing by itself, would justify a conviction in a case in which the testimony of a single witness would suffice for that purpose, yet there must be some evidence of corroboration.
    2. -: -: Letter. Where prosecutrix testified that defendant promised to marry her in May, but could not give the date, a letter written to her by him in July in which he said, “Say, sweetheart, do you want mary if you let me no,” is not evidence of corroboration of a previous promise; and though she testified that, in reply to it, she promised to marry him, yet too many promises create suspicion, and the more promises and acceptances the less definiteness and certainty of' guilt. And that letter being the only evidence corroborating her, a conviction cannot stand.
    3. EVIDENCE: Copy of Family Bible Record. A copy of the family Bible record, made many years before the date prosecutrix charges she was seduced by defendant, by copying from the record in a worn Bible, whose lids were loose, upon a separate piece of paper, by members of the family, is competent evidence to corroborate parol testimony as to prosecutrix’s age.
    4. -: Seduction: Keeping Company with Other Girls. In a seduction case it is proper for the trial court to restrict •defendant’s testimony relating to his keeping company with other girls in the community during the months covered by his engagement to prosecutrix, to the dates she testifies he was in her company.
    Appeal from Greene Criminal Court. — Hon. Alfred Page, Judge.
    B-E VERSED AND REMANDED. '

      J. J. Gideon, J. G. West and W. G. Gideon for appellant.
    (1) The evidence, considered as a whole, does not constitute sufficient corroboration of any promise of marriage by the defendant and accepted by the prosecutrix, and is not sufficient to overcome the legal presumption of innocence and the testimony offered by the defendant. State v. Long, 238 Mo. 383; State v. Teeter, 239 Mo. 475'. (2) By the prosecutrix’s own statement, the promise was to marry her if he got her into trouble, then there was "no seduction. State v. Thomas, 231 Mo. 41. (3) The court refused the offer of the defendant to show by the defendant that during the year 1909, he kept the company of Susie Camp continuously, and that she died in the spring of 1910. And to show further that he kept company with William Alford’s daughter, from March, 1910, until the present time, not missing but one Sunday during the whole time, which ruling of the court the defendant, by his counsel, then and there excepted at the time. The defendant was entitled to show the above facts to rebut and contradict the testimony of the prosecutrix.

      John T. Barker, Attorney-General, and Thomas J. Biggs, Assistant Attorney-General, for the State.
    (1) The statute requires that in a trial for seduction under promise of marriage, the evidence as to such promise must be corroborated to the same extent as required by the principal witness in perjury. See. 5235', R. S. 1909; State v. Sublett, 191 Mo.-163; State v. Fogg, 206 Mo. 296. (2) Error is alleged and exception saved as to the admission in evidence of a family record of dates of births of members of the family, record having been taken from a family Bible which was becoming so dilapidated that it was scarcely legible. A copy of an entry in a family Bible purporting to show the date of a person’s death is admissible if the absence of the original is accounted for. Green-leaf v. Railroad, 30 Iowa, 301. Record of births, kept on a paper and written by neighbors, has been held by this court to be admissible to show the birth and age of the persons whose records are so written, even though part of such record was written by a neighbor. State v. Neasby, 188 Mo. 470. In addition to this' testimony, the prosecutrix testified to her own age, was sufficient proof when nncontradicted. State v. Marshall, 137 Mo. 468. The evidence of the age of the prosecutrix being nncontradicted, there was nothing prejudicial to the defendant, and the introduction in evidence of the paper showing the birth of the prose-cutrix was not objectionable nor reversible error. (3) There was evidence that the prosecuting witness and the defendant had been acquainted for some time; that a promise of marriage had been made to the prosecutrix. That promise of marriage was' corroborated by the letters that had been written by the defendant to the prosecutrix, one of which mentioned the fact of marrying, and the fact that they were often seen together; that the act of sexual intercourse did take place. Certainly this is sufficient evidence to sustain the verdict of the jury.
   FARIS, J.

Defendant was tried in the criminal court of Greene county on July 23, 1912, upon an information charging him with seduction under promise of marriage, for that it was averred, he had seduced and debauched one Susan Reynolds, an unmarried female of good repute, under the age of 21 years. He was found guilty by the' jury, which assessed his punishment at a fine of three hundred dollars and imprisonment in the county jail for a term of 180 days. From this verdict and the judgment following same he has appealed to this court.

The testimony in the case tends to show that defendant and prosecutrix had known one another nearly all of their lives; that they had lived for years near one another in Webster county, where they were both reared, though prosecutrix had been, prior to the seduction charged, living for a number of years with her parents in Greene county. Apparently defendant himself was farming in Greene county at the time of the seduction, hut since the offense was committed in Greene county neither of these facts is of much moment.

The testimony is somewhat voluminous and many respects contradictory. That of the prosecutrix tends to show that defendant began keeping company with her in the month of February, 1909, and continued to wait on her with much of assiduity until sometime in April, 1911. She avers that in the month of May, 1910 (precise date or part of month not given), while walking home from church with defendant the latter asked her to marry him and that she consented. It seems from prosecutrix’s testimony that her father was opposed to her receiving the attentions of defendant and would not permit him to visit her at her home. The details of this opposition, or the reasons for it, are not given, and the facts appear but obscurely and vaguely in the record. The prosecutrix states that the promise of defendant to marry her was conditioned upon her leaving home, which she did om June 22, 1910, and went to Kansas City, Kansas, where she remained about a month, living with •her half brother. While at Kansas City, Kansas, defendant wrote prosecutrix a letter, which she received sometime in the early days of July, and which letter we print in full in the opinion herein, as it indubitably is the only spark of corroboration in the entire record. Upon the return of prosecutrix to her home, the attentions to her of defendant, she says, were renewed, and on August 3, 1910, while ostensibly on the way to attend church, at Rogersville, the defendant, protesting the while, to use her own words, “that he loved her better than any girl he ever kept company with, ’ ’ accomplished her undoing. The intercourse thus begun continued until sometime in. March of the following year when she became pregnant, subsequently giving birth to a child on December 4, 1911. About the month of April, 1911, when she became aware of her condition, she confessed it to her sister-in-law, but so far as the record shows, her confession was confined to her condition of pregnancy, and gave no hint of the making, or of a reliance upon, the alleged promise of marriage, which she now avers caused her fall. Prossecutrix, for a part of the time covered by the record, seems to have been employed at various places in the neighborhood as a domestic servant, and for some, three weeks in the month of October, 1910, performed such service for one Henry Bruton, the brother of defendant, at whose home at the same time defendant seems to have been staying.

Many witnesses were called for the State, who testified as to the good repute in the community of. the prosecutrix prior to her downfall. Six of these witnesses for the State, for the most part her neighbors and acquaintances, out of nine who testified as to the below fact, say that they never saw defendant in company with her; the other three say that they never saw defendant with her but once or twice.

Defendant, on his part, proved for himself a good reputation generally, and for truth and veracity, and touching the precise failing involved in this inquiry. Testifying for himself, he denied the promise of marriage. Touching whether he had had sexual intercourse with prosecutrix, he refrained from committing himself, passing this question like the Levite. “on the other side.” He denied having paid court to prosecutrix and averred that he had not accompanied .her or “gone with her in his whole life” but upon two occasions; once, to a dance in the vicinity, and on the other occasion he had driven with her in a buggy from the house of a neighbor where she was marooned by a rainstorm to the place at which she was then staying, and that upon the latter trip another girl was in their company. In all of this his own witnesses corroborate him.

At the conclusion of all the evidence in the ease defendant offered an instruction in the nature of a demurrer to the evidence, and requested the court to give the same. This the court refused to do, proper exception was taken and saved, and this- point is the contention which learned counsel have most strenuously urged upon us. Other alleged errors are said to have occurred upon the trial. These, together with such other facts as may be necessary to be stated in order that a full understanding of the contentions made and the points ruled may be obtained, will be set out in the opinion, if such setting forth shall become necessary.

I. At the close of the case, when all of the testimony was in on both sides, defendant offered an instruction in the nature of a demurrer to the evidence. This instruction the court refused to give, which refusal, as we have stated, is the basis of defendant’s most strenuous contention here, and presents a serious question in the case, Assuredly there is evidence enough of facts in the record, for the testimony of the prosecutrix furnishes that, but is there enough of corroboration of prosecutrix’s testimony? Let us look fairly over the facts shown in evidence.

Prosecutrix says that defendant began keeping company with her in February, 1909, and continued to do so till a period long subsequent to the date at which she says she was seduced; that defendant went to dances with her; that he accompanied her home from church and drove about the country in a buggy with her, but that he never came to her father’s house to visit her because her father objected to defendant’s paying attention to her. In this she is not corroborated by the witnesses for the State, for six of them, her neighbors and acquaintances for the most part, say they never saw the defendant with her or in-her company anywhere. The defendant says he never went with her but twice, once he accompanied her from a dance to the place at which she was staying, and once, at the suggestion of a third person, because of a rainstorm in which prosecutrix was caught, drove with her and another girl in a buggy from the house of a friend to the place where prosecutrix was working. Three other witnesses for the State say that they never saw defendant with prosecutrix but once or twice. During the period embraced in this record defendant is shown to have been paying attention to other girls in the neighborhood and prosecutrix is shown to have been the recipient of much more attention from other young men than from defendant. She avers that the promise of marriage was made to her and accepted by her on some indefinite day in May, 1910. In June following she went to Kansas City, Kansas, and while there and on about the first days of July, 1910, she received from defendant the following letter:

“Eogersville, Mo.

“Miss Susan E.

“Dear Sweetheart. I will try to ancer your letter this afternoon I was to here from you well sweetheart how ar yo by this, find and dandie I guess — well sweetheart I wish I was out thar with you, we wod have a time dont forgit it we wod. Say sweetheart cood I get any work to do thar — say sweetheart do you want me to come out thar say sweetheart do you want mary if you let me no — -well sweetheart I will ring off for this time — answer soon ancer soon from your sweet-hart Benie Bruton to dear sweetheart Susie.

“By By By.”

This letter prosecutrix says she answered and in her answer accepted the offer of defendant to marry her. We concede, that, if she had not already, unequivocally and all through her testimony, unalterably fixed the promise of marriage as in May preceding, we would need to look for corroboration no farther than this letter, although she says defendant gave her no ring, made her no presents and never fixed any day for the wedding. Prosecutrix made no preparations for marriage to defendant, and did not for more than a year (and long after she became pregnant) tell anyone of the alleged promise of defendant. In fact, while the record shows that she told her brother’s wife of her pregnancy in May, 1911, there is no evidence in the record that she complained of having yielded to Mm under a promise of marriage till she filed a sworn complaint against defendant in July, 1911, which complaint is the foundation of this prosecution.

Besides the letter which we set out above, four other letters were written to prosecutrix by the defendant. No one of these, though all were written long subsequent to the alleged promise of marriage, gives any sign or hint .of the existence, of a promise of marriage. Since these letters contain all and the only extrajudicial utterances of defendant touching the subject-matter of this charge, we append below, as an example of all, one of these four epistles, which one was written in the fall or winter of 1910, following the alleged engagement in the month of May, and the debauchment in August, 1910, preceding. This letter is as follows:

“Miss Susie R hellow kid how ar yo I am fine and hope you the same Well kid I will com over sady night if you will go. Be wred to go when I get thaiv I will tell the wrest I see yo so good By By.

“Fron Ben B to susie.

“If you-cant go let me no.”

As illustrating the slender thread of fa.ct upon which the case hangs and turns, an excerpt from prosecutrix’s testimony detailing still other promises of marriage is pertinent. Upon her cross-examination, among other things, she said:

“Q. What did he say, if you got into trouble he would marry you; the defendant here Ben Bruton, did he say anything about if you got in trouble he would marry you? A. Yes, sir.

“Q. What did he say? A. He said if I got in any trouble he would marry me.

“Q. Was that before he had intercourse with you? A. Yes, sir.

“Q. How did he say that? A. I told you he said he would marry me if he got me into trouble.

“Q. That was before you had intercourse? A. No, sir.

“Q. Did he say if you got into trouble he would marry you? A.‘ Yes, sir.

“Q. How many times did he say that? A. I don’t know.

“Q. More than that? A. I never kept count.

“Q. Was it at Martin’s he said he would marry you if you got in trouble, or at Bruton’s, or your father’s, or Ben Field’s? A. Every place I was staying at.

“Q. Every one of them from start to finish? A. Yes, sir.”

Since by statute the testimony of the prosecutrix in a prosecution for seduction must be corroborated as to the promise of marriage (Sec. 5235, R. S. 1909), we are constrained to say that we cannot gather from this record sufficient corroboration to warrant our permitting this verdict to stand, when we regard the statute and the adjudicated cases. [State v. Teeter, 239 Mo. 475; State v. Long, 238 Mo. 383; State v. McCaskey, 104 Mo. 644; State v. Eisenhour, 132 Mo. 140; State v. Hill, 91 Mo. 423; State v. Reeves, 97 Mo. l. c. 673; State v. Primm, 98 Mo. 368; State v. Davis, 141 Mo. 522; State v. Marshall, 137 Mo. 463; State v. Sublett, 191 Mo. l. c. 172.]

For the quantum of corroborative evidence, the statute (Section 5235, supra) refers us to the rule prevailing in a prosecution for perjury. The rule as to the sufficiency and weight of corroborative proof in a prosecution for the latter offense was discussed in the case of State v. Heed, 57 Mo. 252, where it was said:

“The additional evidence need not he such as, standing by itself, would justify a. conviction in a case where the testimony of a single witness would suffice for that purpose; hut it must be at least strongly corroborative of the testimony of the accusing witness.”

In the case of State v. Eisenhour, supra, l. c. 147, it was said:

“Positive corroborating evidence is not required either in perjury or in a case of seduction under promise of marriage, hut any material circumstance shown by other witnesses corroborative of the evidence of the prosecuting witness as to the perjury or promise of marriage is sufficient.”

We have searched this record most painstakingly for some sufficient corroboration of the prosecutrix’s testimony as to the promise of marriage and can find none of sufficient weight for this purpose. The letter which prosecutrix received in July, in which defendant asked her if she wanted to marry and if so to let him know, if it means anything means a present offer of marriage. It does not corroborate a then long existing contract to marry. If prosecutrix had laid the promise of marriage as of the same date, or subsequent to the receipt of this letter, we would not then hesitate to say that the letter would then furnish strong and ample corroboration of a subsisting contract to marry at the date of the dehauchment and seduction. We cannot see why, if such a contract had ■existed since May, 1910, defendant should ask prosecutrix in July, 1910, if she wanted to marry. It is true that she avers that she also accepted this offer,, but in a case such as this the more promises and acceptances the less definiteness and certainty of guilt. Too many promises create suspicion, other facts being-regarded. She is not able to even approximate the date in May at which the defendant proposed to her and she accepted him, though she testified herein but a little more than two years after she avers she became engaged to marry defendant and there had transpired in the interim matters of pith and moment which it seems ought to have impressed the date upon her memory indelibly.

If it be said that by the letter we set out the defendant merely intended to ask whether prosecutrix was ready to marry and desired her “to set the day” under a then existing promise, the answer would seem to be that prosecutrix herself while professing to know all the antecedent facts, did not so interpret the letter, for she says she did not know why defendant thus wrote to her and that she (regarding evidently the offer as a fresh offer) accepted this offer also, as another offer of marriage. Learned counsel for the State join us in this view and construe the clause in the letter as another offer of marriage, as witness this excerpt from their brief:

“The only proposals of marriage by the defendant are the one made in May, 1910, when coming from Rogersville, and the one contained in the above letter mailed in July, 1910.”

If we may judge by the lightness of the punishment inflicted, the jury must have' been influenced by the many contradictions and improbabilities disclosed by this record. The whole record is barren of any fact whatever, the letter above alone excepted, which lends any, the least color of corroboration even, to the testimony of the prosecuting witness, and we are not disposed alone upon the weight of so ambiguous an extrajudicial confession to let this verdict stand, and so we hold that the court should have given the instruction in the nature of a demurrer to the evidence, offered by the defendant.

II. It may be that other testimony, sufficient in law to furnish forth the quantum- of corroboration required, may be obtained upon another trial. In this contingency, it may be well to say that we no error ^le that the court gave instruction 8 touching an alibi. The defendant urges upon us that this was error because there was no proof that defendant was not present on August 3, 1910, when prosecutrix was seduced and debauched; that he did not in his testimony deny that he was with her on that date.

Learned counsel in sticking to the letter of the testimony, have suffered the fate denounced by the maxim qui haeret in litera haeret in eortice. Prosecutrix says she was seduced and debauched August 3, 1910, while taking a buggy ride with defendant and ostensibly on the road to church; defendant says he never was with her in a buggy alone; that he never took her buggy riding, except one trip in April, 1911,-when he drove her home on account of a rainstorm, and then they were accompanied by the Hargus girl; that he was in her company as an escort twice only in life, once in December, 1910, when he went with her to a dance at Horton’s, and again in April, 1911, on the occasion above set out. His testimony fairly considered embraces an emphatic denial of his presence with prosecutrix on August 3, 1910, and makes for defendant a strong alibi; so strong by large inference that we cannot say the learned trial judge erred in caution in giving the instruction objected to, and so we disallow the point.

III. While certain instructions offered by defendant were refused by the court, we see no error in this for the reason that the court had already fully covered the points toward which the refused instructions were directed, by giving full and correct instructions sua sponte, or by giving other instructions asked by and given for defendant. [State v. Hicks, 178 Mo. 433; State v. Laughlin, 180 Mo. 342.]

IV. Further complaint is made that it was error to allow the introduction of the copy of the family record, which copy was averred to have been taken from this record some fifteen years bef°re the trial. We do not think this was error; a fortiori under the facts here. No contradiction on defendant’s part as to prosecutrix’s age was made. She testified to her age; her father did likewise, and as cumulative proof of the fact of her age, which was not denied, a copy of the family record, originally set down in the family Bible, was offered. Concededly the record in the family Bible was the best evidence, other things being equal and present; but may not a copy of the entries from a family Bible death and birth register also become competent upon a proper foundation laid? We think so, and we think the foundation was laid in this case. The proof showed that the entries were originally made in the Bible by the deceased mother of prosecutrix; that some twelve or fifteen years before, fins Bible, having lost its covers and some of its leaves, became so worn and illegible as to the pages thereof containing the reg-. ister of births, that it was deemed wise, these dozen years ante litem motam, to copy the entries from the register upon another sheet of paper; that this copy was made at the request of and in the presence of the deceased mother, the original maker of the entries, and in the presence of the witness Frank Reynolds,' by another brother of prosecutrix and of said witness ;• that this copy, being the same offered in evidence in the case and to which objection was lodged, was a correct one, and that the original Bible entries were at the time of the trial so worn as to be illegible. "We hold that it was not error to offer the copy under the foundation laid- and above stated. Besides as the facts here are, it was proof that was not under the law and facts here hurtful; because it was merely cumulative evidence of a necessary but uncontradicted fact already abundantly shown by other competent proof. It follows that we must disallow this point to defendant.

The further contention that defendant should have been permitted to show that he was, during the time embraced within this record, keeping company with other girls in the community, and that error meet for reversal may be predicated upon the court’s refusal to allow such proof, or rather upon the action of the court in limiting this proof, a,s he did, to dates at which prosecutrix testified defendant was in her company, needs, we take it, but scant attention. The very statement of the proposition shows its fallacy. It i¡y confounded in limine and in the utterance by the homely expression of having “two strings to one’s bow.” Would it not have been entirely feasible and practicable to defendant to have paid strenuous, devoted and continuous court to many maidens of the vicinage, on Sundays, Mondays, Tuesdays and Wednesdays, and at the same time have found ample leisure and opportunity to visit and woo and promise and seduce the prosecutrix on Thursdays and Saturdays? We think so, and think the trial court was correct in setting the limitations of the proof offered as he did, and beyond the bounds of which he did not permit defendant to go.

It follows that this case must be reversed and remanded for a new trial if so be it that tbe State may by diligence strengthen its case in tbe behalf mentioned. It is so ordered.

Broim, P. J., and Walker, J., concur.


source: Caselaw Access Project

author: BEOWN, P. J.

license: Public Domain

text:
    THE STATE v. RICHARD SYDNOR and BEN FOSTER, Appellants.
    Division Two,
    December 9, 1913.
    1. INSTRUCTION: On all the Law: No Assignment in Motion. An assignment that the trial court failed to instruct the jury on all the law of the case will he disregarded on appeal, if the motion for a new trial fails to designate any point on which the court failed to instruct.
    2. EVIDENCE: Exclusion: Self-impeachment. The prosecuting witness should not be required to pass judgment upon his own veracity, or lack of it, under a state of facts which had not arisen at the time an objection to a question asked him was sustained.
    3. -: Substantial: Robbery. The prosecuting witness testified that defendants seized him as he was standing, about 1:30 a. m., at a street corner, under a very bright street lamp, waiting for a car; that they took him into an alley, and while one held him the other took a ten-dollar bill from his pocket, and a watch; that he immediately hunted up a policeman and went with him to a near-by Chinese restaurant to give him a description of the robbers, and while such description was being written, the defendants entered and he immediately recognized them. Before they were arrested the policeman took him out in front of the restaurant and questioned him closely as to the identity of defendants. When arrested a ten-dollar hill was found on the one who had taken such a bill from him; and later in the night a watch corresponding in make and date to the one taken from the prosecuting witness was found in the restaurant hidden among some chop suey crates, and the Chinaman in charge would not claim it. The testimony of defendants’ witnesses indicates that they were together on the street within a block of the place where the prosecuting witness claims he was robbed within ten minutes of the time of the robbery. Held, sufficiently substantial to warrant a verdict of guilty.

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

      William E. Fish and William P. Hill for appellant.

      John T. Barker Attorney-General, for the State; Paul P. Prosser of counsel.
    (1) The separate verdicts are responsive to the issues, and are amply sufficient to support the respective judgments entered in accordance therewith. State v. King, 194 Mo. 494; State v. Grossman, 214 Mo. 243; State v. Bishop, 231 Mo. 415. (2) The verdicts are supported by abundant evidence of the defendants’ guilt. No demurrer was offered by the defendants to the evidence on the part of the State, nor at the close of all the testimony in the case; and the complaint made in their motion for a new trial that the verdicts are against the evidence is only “the natural appendix to a lost cause.”' The positive identification of the defendants by the prosecuting witness, their admitted presence in the immediate neighborhood at the time of the commission of the offense, the finding of the ten-dollar bill on the defendant Sydnor crumpled up in a card case and separate and apart from other money in his possession, the discovery of the watch, hidden at a place in the restaurant near which the defendants had been seen to stand just prior to their arrest; all these facts leave little room for any serious consideration of their defense of alibi. However, it was the special province of the jury to pass upon the issue thus presented, and where there is substantial evidence to support their verdict this court will defer to the finding of the jury and the trial court. State v. Alexander, 184 Mo. 272; State v. White, 189 Mo. 349; State v. Smith, 190 Mo. 723; State v. Newman, 245 Mo. 499. (3) As the second ground of their motion for a new trial, the defendants complain' that “the court failed to instruct the jury as to all the law applicable to the case.” No instructions were requested by the defendants, nor does it anywhere appear in the record that the attention of the trial court was called to any particular point omitted in the instructions given. The general specification contained in the motion for a new trial is insufficient, in that it does not call the attention of the court to any particular question of law on which it is claimed the court failed to instruct. State v. Conway, 241 Mo. 291; State v. Dockery, 243 Mo. 599; State v. Sykes, 248 Mo. 712.
   BEOWN, P. J.

Convicted of the crime of robbery in the first degree the defendants appeal from a judgment of the circuit court of St. Louis City fixing their punishment at five years each in the penitentiary.

John Herbert, the prosecuting witness, testifying on behalf of the State, says that on'the morning of January 1, 1913, about the hour of 1:30 a. m., he was robbed by defendants near the corner of Fairfax and Sarah streets in St. Louis City, a locality inhabited mostly by negroes.

About two or three blocks from the scene of the alleged robbery is located a Chinese restaurant, and about the same distance, though in a different direction, is located the residence of a colored man by the name of Lang, who gave a New Year’s party on the evening of December 31,1912. These places figure extensively in the evidence of the witnesses.

The prosecuting witness, a railroad brakeman, testified that he spent most of the evening of December 31,1912, and until 1 a. m., January 1, 1913, sitting with another railroad man by the name of Fitzgerald in a saloon on Whittier street, where they smoked several cigars and drank a few glasses of beer. When the saloon closed at 1 a. m. the prosecuting witness walked to the corner of Fairfax and Sarah streets, intending to take a car and go home; that while Tie was at this corner under a very bright street lamp, the defendants, came along and, after asking him if he “had been to the white folks ’ party, ’’ seized him by the arms, dragged him about a half block or more and into an opening between two buildings, and there the defendant Foster held him and defendant Sydnor took from him a ten-dollar bill, some small change and an Ingersoll watch; that while they were thus pulling him along by the arms they told him that if he holloed they would kill him.

After he was robbed Mr. Herbert hunted up a policeman, and the two went to the Chinese restaurant before mentioned. There the policeman started to write down a description of the parties who committed the robbery, and while he was doing so the defendants entered the restaurant. The prosecuting witness recognized them at once, but the policeman took the prosecuting witness out in front of the restaurant and questioned him closely as to the identity of the parties before making the arrest. When arrested defendant Sydnor had in one of his pockets a ten-dollar bill “crumpled up” in a card case; also a two-dollar bill and some small change in another pocket. No money was found on defendant Foster.

George Ernest was in the restaurant when defendants were arrested. He testifies that on the night after the arrest he was again in the restaurant and found a watch where it had been hidden among some chop suey crates. The watch thus found was still running and corresponded in make and date of purchase to the one taken from Herbert by the parties who committed the robbery. The Chinaman who operated the restaurant would not claim the watch; apparently it had been placed where it was found by some one not connected with the restaurant.

The evidence does not show that the defendants placed this watch where it was found, but only that it was possible for them to have done so just before they were arrested.

On the part of defendants there was testimony of two witnesses that defendants attended a “watch party” at a negro church located on Elliott and Wash streets until after the hour of midnight of December • 31, 1912, and that they subsequently attended the New Year’s party at Lang’s residence. Two witnesses swore that defendant came to Lang’s party at 1:20 a. m. and remained there until after 3 a. m., of January 1, 1913, when they went to the Chinese restaurant, where they were arrested.

The father of Sydnor testified that his son (one of the defendants) had been working for him regularly as a paper hanger, and that on the day prior to the alleged robbery he paid his son $12.50 in cash and gave him an order on which the son received eight dollars additional.

Defendant Sydnor was not sworn, but defendant Foster testified, denying all connection with the robbery. He stated that he never saw the prosecuting witness until defendants entered the restaurant, where they were arrested.

The evidence of the prosecuting witness and the policeman was to the effect that there were very few people on the streets near the corner of Fairfax and Sarah at the hour of 1:30 a. m., on January 1, 1913, while the evidence of defendants’ witnesses tended to prove that there were numerous people on said streets at that hour.

Such other points in the evidence, as are necessary to a proper understanding of the case will be found in our opinion.

The defendants have filed no brief in this court, but their motion for' new trial below assigns the following alleged errors: (1) Failure of the trial court to instruct the jury on all the law of the case; (2) exclusion of legal evidence; (3) admission of improper evidence; and, (4) that the verdict is against the evidence.

I. Defendants’ first assignment must be disregarded, because their motion for new trial does not designate any point upon which the court failed instruct the jury. [State v. Conway, 241 Mo. l. c. 283; State v. Dockery, 243 Mo. l. c. 599; State v. Horton, 247 Mo. l. c. 663.]

Exclusion ofEvidence.

II. The only evidence offered by defendants-which was excluded by the court was a part of the' cross-examination, of the prosecuting witness. . Said witness upon being asked by defendants ’ counsel if he went into the alley where he was robbed, with some negro girls, he replied that he did not. He was then asked if he would not deny that he went into an alley with negro girls even if it were true. Upon objection by the State, he was not required to answer the last question. We do not think the witness should have been 'required to pass judgment on his own veracity, or lack of it, under a state of facts which, so far as the evidence indicates, had not yet arisen. The court did not err in refusing to require the prosecuting witness to answer the question. No effort was made to impeach the witness by evidence of his general bad reputation for truth or morality.

III. A careful reading of the entire record does not disclose the admission of any improper evidence, consequently there is nothing to support defendants’ third assignment.

IV. The fourth assignment challenges the sufficiency of the evidence. The prosecuting witness says that when seized by the defendants he was standing, or walking slowly, under a very bright street lamp, so that he must have obtained a good view of their faces, which were not masked. He also heard their voices. This gave him a very good opportunity to identify them. We think the evidence of the prosecuting witness made out a prima-facie case foi; the State, and that other evidence in the case tends to corroborate him.

The evidence of defendants’ own witnesses indicates that the defendants were together on the streets not more than a block from the place where the prosecuting witness claims he was robbed within ten minutes of the time of the robbery. The alibi which the defendants attempted to establish is not very convincing. It is seldom that any witness can remember the exact minute when a transaction took place. This is illus-. trated by the testimony in this case. One of defendants’ witnesses swore than the defendants did not leave Lang’s New Year’s party until about 3:30 a. m., while defendant Poster swears that they left Lang’s between two and three a. m.

It was the special province of the jury to weigh the evidence, and there is nothing in this case which would warrant us in disturbing their verdict. [State v. Alexander, 184 Mo. 266; State v. Newman, 245 Mo. 495.] The judgment is affirmed.

Walker and Faris, JJ., concur.


author: PARIS, J.

text:
    THE STATE v. THEODORE CHRISTIAN, Appellant.
    Division Two,
    December 9, 1913.
    1. INFORMATION: Misjoinder of Offenses. Except where otherwise provided by statute, only such offenses may be joined in the same information as arise out of the same transaction and which are so far cognate that an acquittal or conviction for one would be a bar to a trial for the other.
    2. --: -: Accomplice in Larceny: Harboring Thief. It is a misjoinder of causes of action to charge in the first count of the information that defendant and another stole a horse, and in the second count to charge that defendant did “receive, harbor, aid and assist” said other “to make his escape and avoid arrest, trial, conviction and punishment.”
    3. -: Misjoinder of Defendants: Two Offenses. Likewise it is a misjoinder of defendants to charge in one count of an information that a felony has been committed by two defendants and in another to charge • that one of them alone committed another and different crime; for instance, to charge in one count that appellant and Scott stole a horse, and in the other to charge that appellant harbored and aided Scott to escape arrest — especially where the State’s evidence shows that Scott was guilty of no crime in permitting himself to be harbored and to escape arrest, and was the mere passive agent through whom appellant committed the crime of stealing the' horse.
    4. PRESUMPTION: Possession of Recently Stolen Property: Instruction. Where the manner of getting the actual possession of property recently stolen is admitted and fully explained by the evidence and the only question in issue' is whether defendant holds such possession innocently or feloniously, no presumption can arise against him from the mere admitted or known fact of possession; but where he was acquitted of the offense of stealing the property, an objection that it was error to instruct the jury upon the presumption arising from the possession of recently stolen property is wholly academic.
    5. REASONABLE DOUBT: Instruction. The instruction on reasonable doubt, presumption of innocence and burden of proof should require the reasonable doubt that will justify acquittal “to arise from a consideration of all the evidence in the case.'

      6. ACCESSORY TO ESCAPE OF THIEF: Insufficient Evidence. Before a defendant can be convicted' of aiding a tbief to - escape arrest and punishment it must be proved that the thief was in fact trying to escape.
    7. CONVICTION: On General Principles. The conviction of a defendant cannot be made to rest upon his bad reputation and the fact of a misspent life, or on what is commonly announced as “general principles;” it must rest upon the evidence in the case.
    Appeal from Moniteau Circuit Court. — Hon. J. G. ■ Slate, Judge.
    Reversed and remanded.

      John M. Williams ¡and L. F. Wood for appellant.
    (1) There is a misjoinder of the two counts in the information, and the motion to quash should have been sustained, as also the motion in arrest. The first count charges Scott and this defendant with grand larceny, while the second count charges Scott with the larceny, and this defendant as an accessory after the fact. These crimes are created by different sections of the statute, require different proof and separate and distinct verdicts. R. S. 1909, secs. 4899, 4536;.Kelly’s Criminal Law (3 Ed.), sec. 53; State v. Durbin, 25> Mo. 175; State v. Daubert, 42 Mo. 245. (2) The motion to quash the information should have been sustained for another reason: In the first count, both defendants, Scott and Christian, are charged with grand larceny-stealing Coleman’s mare; while in the second count the defendant Christian is charged with being an accessory after the fact under Sec. 4899, R. S. 1909. In other words, Christian is charged in the first count with being an accomplice with Scott in committing the larceny. One charged with a crime as principal cannot be charged in the same indictment as an accessory. Wharton’s Crim. Ev. (8 Ed.), sec. 440; State v. Umble, 115 Mo. 461; R. S. 1909, sec. 4899; State v. Kuhlman, 152 Mo. 103. (3) The giving ¡of instruction number 4 for the State, in regard to the recent possession of stolen property was most hnrtfnl to this defendant and not warranted by the evidence. The entire evidence regarding the possession of the stolen mare by defendant was that he had ridden her about town, publicly, offering her for sale. He did not tell anyone that she belonged to him or that he had an interest in her. Messerlie, who .bought the mare, stated that he knew that defendant made nn claim to the mare and was selling her for Scott. (4) The court erred in refusing to give the instruction asked by defendant on circumstantial evidence. If the jury refused to believe the witness Scott, as the verdict shows they did, then such instruction was proper. State v. Moxley, 102 Mo. 391; State v. David, 131 Mo. 380; State v. Clark, 147 Mo. 38; State v. Woolard, 111 Mo. 256. If the instruction was faulty it was the duty of the court to give a correct one. State v. Clark, 147 Mo. 38. The defendant was acquitted of the larceny and should have been acquitted on the second count, as there was no evidence that is not as consistent with the innocence of the defendant as with his guilt. The acquittal of defendant of the larceny showed that the jury disbelieved the entire testimony of Scott, and the evidence of Scott being eliminated, there is no evidence that defendant had any more knowledge of Scott, or that the mare was stolen, than these other persons. In a criminal case it is not sufficient to say, as in a civil case, that the circumstances were sufficient to put a man on inquiry, but actual knowledge must be proven beyond a reasonable doubt. It is not sufficient that the evidence raises a strong suspicion of his guilt. State v. Crabtree, 107 Mo. 642; State v. Clien, 154 Mo. App. 686. (5) In order to convict the defendant Christian of being an accessory after the fact, four things must be proven iagainst him: first, that Scott was guilty of the larceny; second, that Christian knew that Scott was guilty; third, that Scott was attempting to escape in order to avoid arrest; and, fourth, that Christian knew that Scott was attemping to escape and did some act to assist him, such as hiding him, furnishing him means of escape, or other tangible assistance. There is absolutely no evidence to sustain any of these grounds, except the first.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
    (1) Is it a misjoinder of counts to include in the same information a count for larceny and a count for being an accessory after the fact? State v. Butler, 17 Yt. 150; State v. Neddo, 92 Me. 71; State v. Edwards, 60 Mo. 490; State v. Lehman, 182 Mo. 447; State v. Boyd, 108 Mo. App. 525; Secs. 4899, 4900, 5103, 5105; 5114, R. S. 1909, 3 Bishop’s New Crim. Proc. (2 Ed.), secs. 421 and 424; Rex v. Blackson, 8 Car. &¡ P. 43. (2) When the offenses are separate, the one defendant not being guilty of the same thing as the other, may they be joined in one indictment? 2 Bishop’s New Crim. Prac. (2 Ed.), secs. 470 and 473; State v. Edwards, 60 Mo. 490; State v. Lehman, 182 Mo. 447. D'uplicity in an indictment is the joinder of two or more distinct offenses in one count. State v. Pox, 148' Mo. 525; 1 Bishop’s New Crim. Prac., sec. 432; State v. Healy, 50 Mo>. App. 243; State v. Bridges, 24 Mo. 353.
   PARIS, J.

This is a prosecution commenced against the defendant in the circuit court of Moniteau county upon an information which was filed therein on April 26, 1913. Since this information has been attacked by the defendant, both by a motion to quash directed toward the entire informaion, and by a demurrer to the second count thereof, we deem it necessary for a full understanding of the points involved, to set the information out in full. Omitting formal parts, it is as follows:

“J. B. Gallagher, prosecuting attorney within and for Moniteau county, Missouri, upon his information and belief, for an amended information, informs the court that Eddie Scott and Theo. Christian on or about the 4th day of February, 1913, at Moniteau county, Missouri, did then and there unlawfully and feloniously steal, take and carry away one bay mare, then and there being', the personal property of Cornelius Coleman, of the value of one hundred dollars, against the peace and dignity of the State.

“ J. B. Gallagher, prosecuting attorney aforesaid, upon his information and belief aforesaid, further informs the court that Eddie Scott, on or about the 4th day of February, 1913., at Moniteau county, Missouri, did then and there unlawfully and feloniously steal, take and carry away one bay mare, then and there, being, the personal property of Cornelius Coleman, of the value of one hundred dollars; and the prosecuting attorney, aforesaid, upon his information and belief aforesaid, informs the court that Theo. Christian, well knowing the said Eddie Scott to have done and committed the felony and larceny of the bay mare in the manner and form aforesaid, afterwards, to-wit, on or about the 5th day of February, 1913, at Moniteau county, Missouri, him the said Eddie Scott did unlawfully and feloniously receive, harbor, aid and assist with the felonious intent and in order that he, the said Eddie Scott, might then and there make his escape and avoid arrest, trial, conviction and punishment; he, the said Theo. Christian, then and there not standing in the relation of husband >or wife, parent or grandparent, child or grandchild, brother or sister by consanguinity or affinity to the said Eddie Scott, against the peace and dignity of the State. ”

The motion to quash, caption omitted, is as follows:

“Comes now the defendant, Theo. Christian, by his attorneys and moves the court to quash the amended information filed in this canse, for the following reasons:

“Because there is a misjoinder of parties defendant.

“Because there is a misjoinder of counts in the information.

“Because the first and second counts in the information are inconsistent with each other.

“Because the first count in the information charges both defendants jointly with grand larceny, and the second count charges the defendant Theo. Christian alone of the crime of aiding the escape of Eddie Scott.

“Because two distinct crimes created by different and distinct statutes are united in the same information.

“Because the information does not charge any crime. ’ ’

The above motion to quash being considered by the court and overruled, exceptions were duly and properly saved. Thereafter a demurrer to the second count of .the information was filed. This demurrer was in the usual form and substantially charged that the second count of the information was not sufficient to make out or charge against the defendant any offense against the law of the State. This demurrer was overruled by the court and exceptions thereto' also properly preserved. The case coming on for trial on May 17, 1913, the .trial jury by its verdict found defendant guilty as charged in the second, count of the information and assessed his punishment at imprisonment for a term of three years in the penitentiary. No finding whatever was made by the jury upon the charge contained in the first count, the jury passing it over in silence.

The court instructed, among other things, that although both counts were submitted to them for their finding, they must not convict 'on both; that they might convict Mm on the first count and acquit him on the second, or vice versa, or they might acquit Mm on both counts. The court also gave an instruction upon the recent possession of stolen property, predicated, without doubt, upon the charge contained in the first count of the information. TMs instruction is in the usual form and the contents thereof are not attacked. The point made is that no such instruction upon the facts should have been given.

Upon the burden of proof, the presumption of innocence and reasonable doubt, the court gave the following instrucion:

“The law presumes the defendant innocent until the State has proven his gMlt beyond a reasonable doubt; uMess the State has so proven his gMlt, you should acquit him, but such a doubt to authorize an acqMttal on that ground alone should be a substantial doubt of guilt, and not a mere possibility of Ms innocence.”

The court was asked by def endant to instruct upon circumstantial evidence, but this request was refused.

The facts as to the larceny of the mare, since defendant was not convicted of such larceny, need not be set out here at length; suffice it to say the proof shows that appellant’s codefendant, Eddie Scott, stole the mare from one Cornelius Coleman, who resided some twenty miles from the town of California in Moniteau county. TMs theft by Scott was committed on February 4, 1913. Scott appeared riding the mare into California on February ’5, 1913. His story as to the connection of defendant Christian (hereinafter called defendant simply), with the stealing of the mare is that defendant appeared at the farm of said Coleman on February 3,1913, during the absence of the latter, and hired said Scott for the promise of the sum of fifteen dollars, to ride the mare into California; that on the 4th day of February, defendant returned and assisted Scott to catch and bridle the stolen mare, and that Scott and defendant thereupon alternately rode said mare until they arrived in the vicinity of the town of California, when, pursuant to instructions from defendant, Scott stopped and stayed all night with one Kennedy, but defendant continued on back to his home in California. According to Scott, all that the latter did in connection with the theft of the mare was done pursuant to defendant’s instructions. Upon reaching California on the morning of the 5th of February, Scott rode the mare up- to a livery stable belonging to one Orr, and tied her first in the bam and later upon the street, he himself going into the barn to warm.

At this point many other witnesses come into the story. Their testimony is that Scott was introduced to defendant and that he became active in assisting Scott to make a sale of the stolen mare, which was very late in the day consummated, by selling her to' one Messerli for the sum of forty-five dollars. This sum was paid to Scott by Messerli by a check, which check was made out in the name of Scott. Defendant, who admits that he was to get ten dollars for helping Scott sell the mare, says that the sole connection with, or knowledge of either Scott or the mare, arose when he was made acquainted with Scott at Orr’s livery stable; that he there saw Scott for the first time in life. Scott on the other hand swears that all that he said and did about the theft of the mare and the sale of her, was done under the instructions of defendant; that he (Scott) was and is wholly innocent, and that he was doing what he did in bringing the mare to California and in selling her in order to earn the sum of fifteen dollars promised him by defendant, for that service.

After the cashing of the check at a saloon in California, a number of drinks were taken by both Scott and defendant and it was finally agreed (at whose suggestion it is impossible tO' say from the record) that Scott and defendant and defendant’s brother should come to Jefferson City to “have a good time.”

When the cheek was cashed Scott avers that he gave defendant fifteen dollars of the money, retaining himself thirty dollars; that he purchased the first round of drinks with another five-dollar bill and divided the resulting change with defendant; that it was the suggestion of defendant that the party come to Jefferson City;.that the railroad fares of all were paid by defendant and that defendant during the whole of this trip paid all expenses of whatever kind. On the other hand defendant avers that he got only the sum of ten dollars out of the purchase price of the mare; that this was according to agreement with Scott to pay defendant this sum for his services in assisting Scott to make the sale; that in addition he received only the sum of ten cents from Scott, which sum was to be paid to the livery stable man for some small service rendered to Scott, as the latter claimed; that Scott paid all railroad fares and for all refreshments of whatever kind consumed while at California or during the presence of the party at Jefferson City. Where the truth lies it is utterly impossible to say, since there is as much corroboration in favor of defendant’s assertions as there is for those' lof Scott.

The defendant, whose attitude and statements we have woven into the statement already, proves for himself a very good alibi, so far as the theft is concerned.

Some very strong circumstances eking out an alibi were furnished by some of the witnesses for the State. It was further shown by the State, that when the defendant boarded the train at California to come to Jefferson City he publicly in a loud voice requested a friend to advise his (defendant’s) wife that he was going to Jefferson City. The proof shows that defendant, Scott and defendant’s brother did come to Jefferson City, where they were arrested on the night of February 5, 1913, and placed in jail. When Scott was searched he had on his person but $5.45' in money, while there was found upon the defendant the sum of twenty dollars in bills and a small amount of silver.

Prior to the trial of defendant Scott seems to have entered a plea of guilty to grand larceny and was thereafter used by the State as its chief witness against defendant. It may be said in passing, and this fact will be hereafter more at length referred to, that Scott in the testimony which he gave for the State denied that he intended to- escape, or that he came to Jefferson City for the purpose of escaping, but that being wholly innocent of any intended wrongdoing, he was, when arrested, on the way back to the- neighborhood in which he had stolen the mare. If any other fact's shall become necessary to a full understanding of the points involved, they will be found in the opinion.

I. It is urged upon us as grounds for reversal (a) that the court erred in refusing to quash the information for that, (1) there was ¡a misjoinder of offenses which may not be joined in the same information, and (2) that there was a misjoinder of parties defendant; (b) that the court erred in giving instruction 4 on the recent possession of stolen property; (c) that the court erred in refusing to give the instruction asked by defendant, or any instruction, on circumstantial evidence, and (d) that the evidence adduced by the State was not sufficient to make out a case against the defendant upon the charge of being an accessory after the fact, for which he was convicted. These in their order.

Turning our attention to the first contention urged by defendant, we note that the information is against both Eddie Scott and Theodore Christian; that in the first count thereof both Scott and this defendant are jointly charged with having together and jointly committed the crime of grand larceny, in that as it was averred, they stole a horse from one Cornelius Coleman. In the second count of this same information the defendant alone is charged with an offense, that of being an accessory after the fact, for that defendant, knowing that said Scott bad (alone and unaided) stolen the self-same horse averred in the first count to have been stolen jointly by both Scott and defendant, acting in concert, did “receive, harbor, aid and assist . . . said Scott to make his escape and avoid arrest, trial, conviction and punishment.” Upon this latter count defendant was convicted. The jury made no finding upon the first count-, passing it sub silentio. Scott, it appears from the record, had, before defendant was put upon bis trial, pleaded guilty to tbe larceny charged against him in the first count.

This court has comparatively often had occasion to discuss one of the bilateral questions arising here, that is, bow far may tbe pleader, in one or more counts of an indictment, join charges of different crimes against the same defendant, but never before has there arisen, so far as we can find, the unique question here involved, of not only charging different offenses in different counts of the same information, but of charging in one count two persons as acting jointly in the commission of a crime, and in the other count charging one of the defendants only with committing a crime with which his coindictee had nothing to do> or at least in which he incurred no criminal liability and took no active part. No finesse of language can relieve the case from the ultimate truth of this bald statement.

Were the two offenses charged such as are permitted to be joined in the same information? We think not. The statute permits a count for larceny to be joined with a count for embezzlement, or with a count for obtaining property by any false pretense, or false token. [Sec. 5103, R. S. 1909.] If an offense by law comprises different degrees the information may contain counts for the several degrees of the same offense, or for one or more of them. [Sec. 5104, R. S. 1909.] In cases of burglary, where in the act of committing the burglary a larceny is also committed, defendant by statute may be charged with both offenses in the same count or in separate counts of the same information, and if found guilty may be punished by a separate term of imprisonment for each offense. [Sec. 4528, R. S. 1909.] 'In passing we may say that this is the only exception in our State to the rule that but one punishment can by law be meted out for the commission of a single criminal act. So far the statute prescribes the practice.

We have held, however, that a count for forgery may be joined with a count for uttering the instrument forged (State v. Carragin, 210 Mo. 351); and that a count fox larceny may be joined with a count for receiving stolen goods. [State v. Richmond, 186 Mo. 71.] In none of such cases, except that of burglary and larceny above adverted to, will more than one conviction he allowed to stand, and at the close of the case either an election must be made by the State or the jury must he instructed by the court that they can convict on but one count. [State v. Carragin, supra.] It goes without saying that in order to meet thei exigencies of the proof, it is well settled that the pleader may charge an offense like murder, or an assault with intent to kill in as many counts as may be reasonably necessary. [State v. Hargraves, 188 Mo. l. c. 348; State v. Jackson, 17 Mo. 544.] So also a count for an assault with intent to kill may be joined with a count for an assault with intent to rape, or to do great bodily harm, or with an assault to commit any felony. This from the very nature of these offenses, and more often from the necessities of the case, and by inference, from the very letter of the statute. [Sec. 4481, R. S. 1909.]

We have not been able to find any other permissible joinders of counts for different offenses in the same information, allowed by the decisions, or by the statutes of this State. Clearly then by the method of exclusion and inclusion we may deduce the rule (statutory exception excepted) that only snch offenses may be joined as arise ont of the same transaction, and which are so far cognate as that an acquittal, or conviction for one, would be a bar to a trial for the other. Judge Wagner in the case of State v. Daubert, 42 Mo. 242, expressed his view of the facts which will allow a joinder, thus:

“Where the offense charged in the second count is of the nature of a corollary to the original felony, as in larceny and the receiving of stolen goods, a joinder is good; and whenever there is a legal joinder, the court may exercise its discretion as to an election.”

It is evident that the instant case does not fall within the rule. The offenses charged in the: two counts of the information here are not cognate, and they do not necessarily arise from the same transaction. One may be an accessory after the fact to murder, arson, burglary, or to any other crime known to the calendar or written in the books. It was not a necessary incident to the theft of the horse here, that defendant became, as it is charged, guilty of being an accessory after the fact. It may better be said to have been a coincidence merely, since there is no crime to which it might not attach. Nor would a conviction for the theft here charged, necessarily negative guilt as to the crime of beiug an accessory after the fact.

Upon the remaining branch of this question as to whether an information may charge in its one count a felony as having been done by two defendants, and in another count thereof charge one of the defendants with having alone committed another and different crime, defendant also makes stremous contention. In the instant ease, upon the facts of the second count as shown in evidence as well as under the law applicable thereto, Scott was guilty of no crime for permitting himself to be harbored, or aided or assisted to> escape so as to avoid arrest, trial, conviction and punishment for the theft of the horse charged against him in the first count. Scott had never been in custody on this charge, so> at law he had the right to escape if he could, whatever view casuists might take of the moral phase. He was in the case but the mere passive agent through whom defendant, as was charged, committed, and without whom' defendant could not have committed, the offense laid in the second count. Scott in a sense bore in law the same relation to the subject-matter of the second count, as the party assaulted bears to the subject-matter of - an assault with intent to kill.

Clearly the joinder of parties defendant here was improper. It would be improper even in a civil action and be demurrable. [Sec. 1800, R. S. 1909.] Scott and the defendant could not be sued in one count of a petition in a civil action upon a note (say) made by both, and defendant alone sued in another count of the identical petition upon an obligation with which Scott had nothing to do, and to which he was not a party against whom a judgment would lie.

The case of State v. Lehman, 182 Mo. 424, discusses fully the question of joinder of different defendants in the same count of an indictment. Under the facts in that case a joinder was held proper. That case was correctly held under the facts there in judgment, and no other view was possible. Had any other holding been made such holding would have been so vulnerable for other objections as that no conviction of the defendants or any of them would ever have been possible in law. As the learned judge who wrote the opinion of the court in that case, said:

“The general rule must be concededi, that where the offense of several defendants are separate and distinct, arise out of separate and distinct agreements or transactions, they should not be joined in the same indictment, but that is not this case.” [l. c. 452.]

It follows that the motion to quash was well taken for both, or either, of the misjoinders charged therein as occurring in the information.

II. It is contended by defendant that the court erred in giving instruction numbered 4 on the presumptions arising from the recent-possession of stolen property. In this, in the light of the evidence kere we think the defendant’s contentions 7 are well-founded, in point of fact, but that in the light of the conditions by which we are confronted in the record, the question raised by the objection is wholly academic. The instruction objected to has reference wholly to the offense of stealing the horse. On this charge defendant was hot convicted; so it is a little difficult to see wherein he was injured. We are not passing upon the contents of the instruction complained of here; we are merely considering whether upon the admitted facts any presumption of guilt accrued from the fact of the possession of the' horse by the defendant on the day following the theft thereof. Where the manner of getting the actual possession of property which has been recently stolen is admitted and fully explained by the evidence in the case, as was done in the instant case, and where the only question in issue is the capacity in which defendant holds such possession — whether feloniously or innocently — no presumption can arise against defendant from the mere admitted or known fact of possession. This instruction ought not to have been given. [State v. Warden, 94 Mo. l. c. 651.] It had no place in the record under the admitted facts, but for the reasons suggested, since defendant was not convicted of the offense with which the instruction had to do, he may not, we opine, successfully complain,. If it be urged that the instruction was competent because the fact of possession tended to prove the scienter here necessary in law, then the same reasoning applies. It was as impotent for the one reason as for the other.

III. Touching defendant’s complaint that the court nisi ought to have instructed on circumstantial evidence, we may say there is no evidence in the record to justify the giving of an mstruction upon circumstantial evidence, Why we take this view, we need not discuss since this case must he reversed for other reasons.

A general attack is made also upon the instructions given in the case, and upon all of them. Without taking the time or space to pass upon them all, we may say in passing that the instruction given on presumption of innocence, burden of proof and reasonable doubt, is not in the best form. To say no more it does not require the reasonable doubt which will justify acquittal to ‘ ‘ arise from a consideration of all of the evidence in the case,” or words of similar import. [State v. Cushenberry, 157 Mo. 168; State v. Temple, 194 Mo. 228; State v. Harper, 149 Mo. 514; State v. Maupin, 196 Mo. l. c. 174.] We do not say that the instruction as given is so defective as tq constitute reversible error, for it follows closely in substance that given in State v. Nueslein, 25 Mo. l. c. 124, which has been declared to be commendable. [State v. Bond, 191 Mo. l. c. 564.] But the better form of this instruction, as we show from the cases which we cite, refers in apt words as a basis for the doubt, to a consideration of all of the evidence in the case.

IY. It is also most seriously contended that there is not enough evidence in the record to sustain the charge of being an accessory before the fact upon which defendant was convicted. We think this contention must also be sustained. Granting for the sake of the argument that there was proof sufficient to take the case to the jury on all of the other required elements in the case (State v. Miller, 182 Mo. l. c. 382), is there any substantial proof that defendant was in fact aiding and assisting Scott to escape in order that the latter might avoid arrest, trial and conviction? Upon this phase of the ease Scott says that defendant suggested coming to Jefferson City and that the defendant paid the fare of Scott to Jefferson City. The record further shows from the testimony offered by the State, that when defendant left California in company with Scott, he requested an acquaintance to inform his (defendant’s) wife that he had gone to Jefferson City, and that he didi come to Jefferson City is not denied, but on the contrary proven by the State. Here was no secrecy, but a publicity which negatives the position of the State. When arrested, as he says, and as the State does not dieny, he was on his way back to California. But that is not all, nor the most serious failure of proof. It was incumbent on the State to show that Scott was in fact trying to escape, before the defendant could be convicted for aiding him to escape. The testimony of Scott, upon whom alone the State relied for proof on this point, so far from showing that he was trying to escape', shows conclusively that he was not doing any such thing. Scott says arroyos of this very point: “I was not trying to get away at all; I had no intention of getting away; I was aiming to go right back out there to Coleman’s.”

The story of Scott is throughout utterly incredible, and filled with numerous and palpable contradictions. It is not capable of reconciliation with much of the other testimony adduced by the State. At this distance, relying, as we must, upon the cold record, it would seem that the conviction of defendant was largely brought about by his own bad reputation; that having by an ill-spent life, earned the punishment meted out to him, he was convicted on what is called in the vernacular “general principles,” rather than upon the evidence in the case. However much we might personally sympathize with the doctrine of a conviction on “general principles” when rightly applied in a case of crying ne&d, we can give no effect to it here, bnt must look to the record, which we do, and hold there is not evidence enough to sustain this conviction. For this and other reasons set out we reverse and remand the case, with the suggestion that if the State is not able materially to strengthen the case made, another trial will be a useless formality.

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