text:
    CITY OF SPRINGFIELD v. SARAH R. OWEN, Appellant.
    Division Two,
    November 24, 1914.
    1. CONDEMNATION: Cities of Third Class: Notice: Appeal. Where in a proceeding by a city of tbe third class to condemn land to widen a street the owner was served with summons, filed answer, and contested to judgment, the proceeding as to him will not be held invalid on his appeal because the record shows that the notice by publication to those owning land within the benefit district was defective.
    2. -: -: Compensation: Appeal. Where the evidence in a condemnation proceeding was conflicting, some of the witnesses fixing defendant’s benefits as equal to the value of the land taken, others fixing the amount approximately at that allowed by the jury, and still others fixing it higher, the Supreme Court cannot say that the compensation was grossly inadequate and therefore it will not interfere with the verdict.
    3. INSTRUCTIONS REFUSED: Points Already Covered: Appeal. An appellant cannot complain because of the refusal of his instructions upon points covered by like instructions given by the court.

      4. FIXING BENEFIT DISTRICT: Legislative Function: C'ity Council. The making of a benefit district is a legislative function delegated to the city council in cities of the third class. In executing this power the municipality may exercise a broad discretion, and, absent fraud, arbitrary action or demonstrable mistake, the courts will not interfere.
    5. -: Property Outside City Limits: Orders of Circuit Court. Where only the property to the north of a proposed improvement in a city of the third class was included in the benefit district fixed by the city council, that to the south-being when the district was fixed outside the city limits, Sec. 9266, R. S. 1909, providing that after the filing of exceptions to the commissioners’ report the court “shall thereupon make such order as right and justice may require, and may make a new appraisement on good cause shown,” does not vest the circuit court with authority to make a new benefit district and include land to the south, even though that land has in the meantime been brought within the city limits.

      6. OBJECTIONS TO EVIDENCE: Must be Specific. To avail upon appeal an objection to the- introduction of evidence must be specific. Tbe remark, “Question objected to,” will not suffice.
    Appeal from G-reene Circuit Court. — Hon. Alfred Page, Judge.
    Affirmed.

      John P. McCammon for appellant.
    (1) The motion to abate and dismiss the action should have been sustained. The statute requires publication for four weeks consecutively. E. S. 1909, sec. 9263. The affidavit made by the publisher was that the notice was published two times, “the first insertion on Dec. 11,1909, second insertion Jan. 10,1911.” The court had no authority to appoint commissioners without the notice required by the statute having been given. E. S. 1909, sec. 9264. The giving of the notice in the manner prescribed “to all persons to whom it may concern” is just as essential to the jurisdiction of the court to proceed further as is the service of summons upon the owner of the land. The court “on being satisfied that due notice of such petition has been given” — not the service of summons upon the owner of the land merely — shall appoint, etc. The jurisdiction of the court — the power to take the citizen’s property through “ striciissimi juris” — cannot be satisfied with the notice shown by plaintiff and to which defendant called attention in her answer and in every paper filed, including, of course, the motion in arrest. (2) The testimony will show that most of plaintiff’s witnesses were very reluctant to acknowledge the value of defendant’s land. But taking this testimony alone as to the value of lots, and averaging it, the value after deducting all the benefits assessed would be from $1387 to $1657. (3) The court rejected material testimony offered by defendant. The court permitted plaintiff to show that the taking of defendant’s property would make a street of uniform width from the boulevard on east to Campbell street on the west, and refused to permit defendant to show that the street would not be of uniform width if opened. It permitted plaintiff to ask and witness to answer the question, “Would it be a very great advantage to have this platted that way and the south side of the addition to be up against a blind alley!” over the objection of defendant. The court refused to permit defendant to show that the property abutting on south side of the street would be benefited by the widening of the street as well as that on the north side. This was very material, for the reason, among others, that plaintiff’s testimony showed that the way witnesses arrived at the benefits to defendant’s land was by calculating the benefits to other property in the benefit district and subtracting that from the defendant’s total damages, which left the amount $518 to be charged against defendant as benefits. (4) The property south of Grand avenue should have been assessed with benefits, and the taxing of all benefits against the property of defendant, releasing that south of the street, is a violation of the constitutional guaranty against the taking of private property. St. Joseph v. Crowther, 142 Mo. 155'. Plaintiff’s testimony here showed greater benefit to the land south than to defendant’s land, though the court would not permit defendant to inquire about it, and yet the benefits to that land were not permitted consideration by the jury. Defendant’s land was made to bear the entire burden. That the south 17% feet, of the 30-foot street had been given by the owner of the land south of the street did not release that land from assessment for benefits. City v. Wetzel, 110 Mo. 260. Neither was this phase of the case affected by the fact that the land south of the street was taken into the city after the passage of the ordinance. The statute provides for just such an emergency by adding the mandatory power, after the filing of exceptions to the report of tbe commissioner's, that “the courts shall thereupon make such order as right and justice may require, and may order a new appraisement on good cause shown.” R. S. 1909, sec. 9266'.

      Leonard Walker and Fred, A. Moon for .respondent.
    (1) The first error assigned and the first point made by appellant is the alleged error of the trial court in overruling appellant’s motion to dismiss the action on the ground that the notice of publication was not properly published. There are three complete answers to this point: (a) No snch motion was made. Appellant’s motion to dismiss does not contain a word about the insufficiency of the publication. The motion assigns other reasons entirely, which reasons seem now to be abandoned by counsel for appellant. A question not presented to the trial court will not be considered on appeal. Freeland v. Williamson, 220 Mo. 217; Smith v. Railroad, 137 Mo. App. 165; Buxton v. Kroeger, 219 Mo. 224; Thomas v. Scott, 221 Mo. 271; Mosley v. Railroad, 132 Mo. App. 649; Storage Co. v. Kuhlman, 238 Mo. 685. A party is restricted on appeal to the theory adopted at the trial. Riggs v. Met. St. Ry. Co., 216 Mo. 304; Mankze v. G-oldenberg, 149 Mo. App. 12. (b) Appellant cannot now be heard to complain of the insufficiency of the publication of the notice because that alleged error is not mentioned in her motion for a new trial. Davidson v. Investment Co., 226^ Mo. 1; Sterrett v. Railroad, 225 Mo. 99; Murphy v. Railroad, 228 Mo. 56; Jackson v. Burgess, 143 Mo. App. 438. Now for the first time appellant calls attention to that alleged error in overruling the motion to dismiss. Having neither mentioned it in the motion to dismiss nor mentioned it in the motion for new trial, she cannot be heard to assign that as error here. (c) Appellant is in no position to complain of the insufficiency of the publication because she answered and went to trial and filed her exceptions to the commissioners’ report, and then tried the case before a jury. She can hardly be in a position to say she did not know the case was pending. If other persons are effected by the assessment of benefits, which seems- to be the ease, they are the only ones who can complain. The appellant’s benefits would be neither more nor less by the failure to acquire jurisdiction over other persons- against whom the benefits were assessed. However, the trial court found the publication was entirely sufficient. (2) The third point made by appellant is an argument upon the evidence. Appellant purports to set out the testimony of two witnesses as to the value of the ground taken. It is not correctly nor fairly done. The main facts testified to are ignored. The point, however, is that appellant, after finding from the testimony of these two witnesses that the, value of the ground taken was from fifteen to twenty-seven hundred dollars, then decides off-hand that that is absolute proof of the value, and the only deduction therefrom should be $-518-, benefits, which would leave from one thousand to twenty-one hundred dollars as the proper verdict in the case. Where does appellant get this $518 benefits? How does- counsel for appellant know that the jury found that the property was benefited only $518? Where is there anything in the record or in the verdict indicating that? It is true that the commissioners reported that amount as benefits, but appellant did not agree to stand by the report of the commissioners; on the contrary, appellant repudiated the report of the commissioners, filed exceptions' to it and claimed that it was entirely erroneous and preferred to submit the entire matter to a jury. Appellant wants to stand by the commissioners’ estimated benefits and refuses to stand by its estimated damages. The two have to go together. Having filed exceptions, the matter was tried before a jury and the jury was instructed to assess the benefits and the damages and return a verdict for the difference, so that the jury, and not counsel for appellant, had the duty to find out how much the' property was- benefited. Accordingly if'counsel’s resume of the evidence as to the amount of damages is correct, it must be presumed that the jury found the benefits were only $300 less than the damages, or from fifteen to twenty-four hundred dollars. Besides the two witnesses, whose testimony appellant attempts to present in her brief in such a way as to show it most favorable to her, were two of the commissioners who assessed her benefits and damages, and they testify squarely in support of the finding of the commissioners in every particular. (3) It was not material to a proper determination of the case whether the proposed street would be of a uniform width of 60 feet or 80 feet in width. The city council had full power to lay out the width of the street in any way it saw proper, and its action is final. It had .the sole power to describe the bénefit district and to declare all of the land within the district to be deemed benefited. Secs. 9261, 9262, 9-263, 9264, 9265, E. S. 1909. The property abutting on the south side of Grand avenue was not within the benefit district as prescribed by ordinance of the city council.- The commissioners had the plat showing the benefited district before them, when they made up their findings of benefits and damages, and so did the jury that finally passed on the question of benefits and damages and neither of them even considered the land south of Grand avenue be-' cause the land south of the street'was in the county not even in the city limits at the time the finding of the commissioners was filed March 5-, 1910, and- for that reason it could not have possibly influenced their findings either way. (4) There was no error in the reftisal of an instruction asked by tbe appellant because the jury was sufficiently advised in tbe instruction given on tbe court’s own motion, that they were not to consider any benefits or damages that might accrue to land lying immediately south of the land sought to be taken.
   WILLIAMS, C.

In this suit the city of Springfield, a city of the third class, seeks, by the exercise of the right of eminent domain, to condemn a strip of land belonging to defendant, for the purpose of widening a street known as Grand avenue in said city. The strip of land sought to be condemned is 30' feet in width and approximately 1320 feet in length, containing approximately ten-elevenths of an acre of land and is located along the south edge of a tract of farm land owned by defendant. As the time of the passage of the ordinance providing for the condemnation of this land, and the fixing of the benefit district, and also at the time this suit was instituted in the circuit court, the southern limits of said city ran along the south edge of Girand avenue at this place. The benefit district, as fixed by the ordinance, was confined to land north of Grand avenue, taking in a strip about 3001 feet in width, including some of defendant’s land, together with approximately 501 smaller tracts or lots belonging to other persons. The affidavit of the publisher making proof of' the publication of the notice required by section 9263', Revised Statutes 1909, was as follows:

“State of Missouri,
“County of Greene.
“H. S. Jewell, being duly sworn according to law, says that he is publisher of the Springfield Leader, a daily newspaper printed and published in the county of Greene, State aforesaid, and that the notice hereunto annexed was published in said paper for-weeks consecutively as follows:
“First insertion 11th day of December, 1909.
“Second insertion 10th day of January, 19101.
“H. S. Jewell, Publisher”

And duly sworn to.

Defendant was served with summons and appeared and filed answer and also motion to dismiss the action. Later the circuit court appointed three commissioners to assess the benefits and damages in the cause. Said commissioners made report finding the value of the land taken to be $880 and her benefits to be $518. And also assessed benefits against 50 tracts of land owned by other persons, at from $2 to $15 each, totaling $282. Defendant filed exceptions to the commissioners’ report and later a trial was had in the circuit court, before a jury, resulting in a judgment in favor of the defendant for the sum of $300-. Thereupon defendant duly perfected an appeal to this court.

I. It is contended by appellant that the circuit court was without jurisdiction to try this cause for the reason that the record shows that the notice required by section 9263, Eevised Statutes 1909, “to all persons to whom it may concern” was published only twice, whereas the statute requires that said notice be published for “four weeks consecutively.” In support of this contention, appellant cites authorities holding that only by strict compliance with the statutory requirements can the right of eminent domain, a right purely statutory and in derogation of common law, be exercised.

That this rule of law is well settled in this State there can be no dispute. But does that rule of law aid appellant in the present case? In other words, does the above rule apply to the present facts? In this, as in the great majority of cases decided by appellate courts, the difficult task is not to determine or discover abstract principles of law but rather to determine what particular rule of law is evoked by the given facts. In the present case appellant, the only necessary party defendant to the condemnation proceedings, was duly served with summons, appeared and filed answer and contested in the circuit court every step of the proceedings upon the merits. And upon finding herself aggrieved by the result of said trial brings the ease here for review and asks that the judgment be reversed and the cause remanded because the persons owning land in the benefit district were not notified as required by the statute.

A review of the authorities requiring strict compliance with the statute will, in nearly every instance, disclose that the irregularity held to be fatal to the validity of the proceedings was the failure to perform some statutory requirement which was an essential prerequisite to establish the court’s right or authority to proceed against the right of the person complaining of such irregularity. Here we have no complaint from the persons- for whose especial benefit the statutory requirement as to publication was made. If those persons- were -here raising the question that said statutory notice had not been given, and it should appear that they had not waived the want of notice by having generally appeared to the proceedings below (City of Tarkio v. Clark, 186 Mo. 285, l. c. 298), then it might well be said that as to that issue, to-wit, the issue concerning the assessment against them, there could be little doubt but that the assessment was void for the reason that failure of sufficient publication of the notice would leave the court without jurisdiction to adjudicate the matter. But that issue is not here presented. In the present case there can be no doubt but that the court acquired jurisdiction over the person of the appellant by the service of summons and also by the further fact that appellant appeared and filed answer. We are also of the opinion that the court acquired jurisdiction of the subject-matter, when, after all necessary preliminary steps were properly taken by the city council, the condemnation petition, in due and proper form, was filed in the circuit court. And thus having jurisdiction over the subject-matter and over the person of the appellant, should the action of the court in dealing with that person and subject-matter be set aside because of irregularities which might withhold the jurisdiction of the court to proceed against the property of others? We think not. The proceeding to assess benefits against the property in the benefit district is in its nature collateral to the main issue having to do with the condemnation of appellant’s land. It is collateral in that it does not affect in any manner the condemnation of the land which is. the main branch of the litigation. Whether the assessment of benefits is void or valid, it cannot affect the rights of appellant, because appellant is to receive her compensation directly from, the city and the city is not to acquire any title, nor even the possession of the condemned strip until it pays appellant the amount of compensation fixed by the court. [Sec. 9269, 9271, R. S. 1909; Art. 2, sec. 21, Constitution of Missouri.]

The great weight of authority is to the effect that in condemnation proceedings the general rule prevails that “the proceedings will be valid as to those having notice and invalid as to those not notified.” [2 Lewis Eminent Domain, par. 586; Mills on Eminent Domain, par. 95; 1 Elliott on Roads and Streets, par. 358; Town of Tyrone v. Burns, 102 Minn. 318; Ross v. Board of Supervisors, 128 Iowa, 427, l. c. 434.]

We do not undertake in any manner to say that the above general rule should be applied in all cases but leave that question open to be determined as the single instances may arise. However, we have no hesitancy in saying that it .should be applied where, as here, the issues involving the rights of those not notified do not in any manner involve or affect the rights of those duly notified.

II. It is further contended that the compensation compensation, fixed by the jury was grossly inadequate. With reference to this point, it is sufficient to say that the evidence was conflicting. Some of the witnesses testified that the benefits accruing to appellant by reason of the proposed improvement were equal to the value of the land taken. Other witnesses fixed the amount approximately as allowed by the jury. Others fixed the compensation higher. Under such conditions, we cannot say that the compensation allowed was grossly inadequate and therefore will not interfere with the amount allowed by the jury. [St. Louis v. Calhoun, 222 Mo. 44, l. c. 55, and cases therein cited.]

III. It is contended that the court erred in refusing defendant’s instruction which informed the jury that if they “should find that land south of Grand avenue abutting thereon is benefited by the opening or widening of the street they should not assess any of such benefits against the land of defendant. ’ ’

Without passing upon the question as to whether or not under the evidence in this case appellant was entitled to the above instruction, it is a sufficient answer to appellant’s contention to say that the court in an instruction given on its own motion did tell the jury, in effect, that benefits accruing to land south of the proposed improvement should not be considered by them in arriving at appellant’s compensation.

IY. It is further contended that the property south of the proposed improvement should have been assessed with benefits an(l that the failure to-assess such land made the benefits assessed against defendant’s land higher than they otherwise would have been.

The property south of the proposed improvement was not included in the benefit district as defined by the city council, and therefore was not subject to assessment. Furthermore, at the time the city council fixed the benefit district, the land south of the proposed improvement was outside of the territorial limits of said city and it is difficult to conceive how it could have been lawfully included therein.

Appellant relies upon the case of St. Joseph v. Crowther, 142 Mo. 155. An examination of that case discloses the fact that the land which was not properly assessed with its just portion of the benefits was within the benefit district as fixed by the city council, and hence the case is not in point. Appellant contends, however, that since the land south of the improvement was later (the exact.date is not given) brought into the city limits by enlargement of the city territory, section 9266, Revised Statutes 1909, “provides for just such an emergency by adding the mandatory power, after the filing of exceptions to the report of the commissioners, that ‘the courts shall thereupon make such order as right and justice may require, and may order a new appraisement on good cause shown.’ ” Just what order the court should have made in the present case, but failed to make, appellant does not undertake to say. But it is clearly apparent that said section does not vest the circuit court with power to make a new benefit district. That power, being a legislative function, is, by delegation of legislative authority, vested in the city council. [Sec. 9262, R. S. 1909.] In executing this power the municipality may exercise a broad discretion and, absent fraud, arbitrary action, or “demonstrable mistake,” the courts will not interfere. [5 McQuillin, Municipal Corporations, par. 2052.] It is not contended that the benefit district in the present case was the result of any of the above-named invalidating agencies.

V. It is contended that the court erred: (a) in refusing to permit defendant to show that the street when widened would not be of “uniform width;” (b) in permitting plaintiff to ask and witness to answer, over the objection of defendant, the question, “Would it be a very great advantage to have this platted that way and the south side of the addition to be up against a blind alley?”

Upon an examination of the record as to point a, we find that the court did permit defendant to show that a portion of Grand avenue was 80 feet in width" and that at the place where it was proposed to be widened it would be 60 feet. From those facts the jury could readily discover that the street would not be of uniform, width.

With reference to point b, the record discloses that when the question was asked, defendant’s counsel said: “Question objected to.” The court overruled the objection and defendant saved an exception. The above objection failed to specify the ground of objection and therefore raised no point for appellate review. [Williams v. Williams, 259 Mo. 242, and cases therein cited.]

The judgment is affirmed.

Boy, C., concurs.

PER CURIAM.

The foregoing opinion of Wix. imams, C., is adopted as 'the opinion of the court.

All the judges concur.


source: Caselaw Access Project

author: BEOWN, J.

license: Public Domain

text:
    THE STATE v. CLARENCE WALLS, Appellant.
    Division Two,
    November 24, 1914.
    1. COINDICTEE: Testifying Without Objection. An assignment that a co-indictee was used as a witness against defendant before a nolle prosequi had been entered cannot be considered on appeal, if no objection was interposed to his competency when he was offered as a witness. No objection to the.compepetency of a witness can be considered on appeal not raised at the proper time in the trial court.
    2. INSTRUCTIONS: Stealing Chickens: Definition of Grand Larceny. An instruction defining grand larceny which omits the fact that the chickens must have been taken in the nighttime to have constituted grand larceny, is immaterial and harmless, if the words “grand larceny” do not appear in any other instruction, and the jury were not required to find the defendant guilty of grand larceny, and the only issue under the evidence was whether defendant stole the chickens, and that issue was presented in a proper instruction.
    3. CONVICTION: On Evidence of Accomplice. A defendant m£,y be convicted of stealing chickens in the nighttime upon the testimony of an accomplice.
    Appeal from Macon Circuit Court. — Hon. Nat. M. Shelton, Judge.
    Affirmed.

      Lacy <& Shelton for appellant.
    (1) The defendant’s demurrer to the State’s evidence should have been sustained and the defendant discharged. R. S. 1909, sec. 5231; State v. Clark, 147 Mo. 36; State v. Anslinger, 171 Mo. 600. (2) Instruction number 1 given on behalf of the State; defining grand larceny, is not applicable to this case; is misleading, prejudicial to the defendant and not a correct definition of the offense charged. The facts in evidence do not justify this instruction. State v. El1 sey, 201 M!o. 571; State v. Gordon., 191 Mo. 114; State v. Walker, 196 Mo. 85; State v. Chambers, 87 Mo. 409; State v. Evans, 124 Mo. 410; State v. Matthews, 148 Mo. 185. (3) Instruction number 3 given on behalf of the State is not predicated, on the facts evolved at the trial. There is no evidence in the record that the defendant “alone” did steal, take and carry away, etc., any chickens. State v. Hargraves, 188- Mo. 337. (4) Refused instruction B requested by the defendant was sufficient to call the attention of the court to the incompetency of the witness Zust to testify in the case, while jointly charged in the information with the defendant and neither discharged nor found guilty. In view of the fact that the witness Zust was jointly charged in the same information with the defendant, this instruction should have been given. State v. Chyo Chiagk, 92 Mo. 395; State v. Weaver, 165 Mo. 12. (5) The court failed to instruct the jury on the good character of the defendant, as required by statute, although defendant had placed his character in issue and introduced several witnesses who testified it was good for honesty and fair dealing and a law-abiding citizen. R. S. 1909, sec. 5231; State v. Anslinger, 171 Mo. 600; State v. Clark, 147 Mo. 36. (6) As to the material elements of the offense, the conviction of the defendant is based solely upon the evidence of the witness Zust. The record and the evidence show that at the time he testified he stood jointly charged in the same information (which is shown by the record in this case) with the defendant, and by the same information upon which the defendant was tried and convicted. So that by statute and the law of this State Zust was absolutely incompetent as a witness to testify against the defendant. The conviction of defendant rests solely upon the evidence of an incompetent witness. R. S. 1909, sec. 5241; State v. Chyo Chiagk, 92 Mo. 395; State v. Weaver, 165 Mo. 12.

      John T. Barker, Attorney-General, and Shrader P. Sowell for the State.
    (1) The demurrer to the evidence filed by defendant at the close of the State’s case was properly denied. There had been substantial evidence offered on every necessary element to constitute the crime charged. Furthermore, this assignment of error is not before this court for review, for the reason that defendant failed to stand upon the demurrer but offered testimony in his defense, thereby waiving his rights under the instruction asked. (2) The direct testimony of the co-indictee and participant in the crime, if true, showed conclusively that the defendant was guilty as charged, and this testimony was corroborated by strong circumstantial evidence. Under our statute, if one by his presence at the scene of crime lends encouragement to its perpetration and is in a position and willing to render assistance if necessary to the active participant, he is in contemplation of law equally guilty with the one who physically consummates the criminal act. State v. Orrick, 106 Mo. 120; State v. Kennedy, 177 Mo. 131; State v. Nelson, 98 Mo. 414; 1 Wharton’s Criminal Law, sec. 211a. The common design or purpose to commit the criminal act need not be shown by direct and positive evidence, it may be deduced by attending circumstances connected with the transaction in question. State v. Walker, 98 Mo. 104; State v. Sykes, 191 Mo. 78; State v. Spaugh, 200 Mo. 591; State v. Fields, 234 Mo. 623. (3) It is not necessary to frame an instruction with the technical precision of an information. The purpose of an instruction is to serve as a guide to a jury composed of average, plain men and to assist them to a correct understanding of the law as applied to the facts of the particular case which they are called upon to determine. Under that principle of construction instruction number one when considered in connection with the implied meaning of the words nsed therein, will be found sufficient. State v. Richmond, 228 Mo. 365; State v. DeWitt, 152 Mo. 85; State v. Campbell, 108 Mo. 611; Stale v. Gray, 37 Mo. 464; State v. Sasseen, 75 Mo. App. 201; State v. Moore, 101 Mo. 326. Moreover, it is a well-established rule that instructions given on the trial of a case are to be taken together as constituting one whole, and if, when read together, they correctly announce the law applicable to the case, they are sufficient. Applying that test to the instructions given, it will be found that instruction number one, as amplified and explained by instruction number three, fairly stated the law of grand larceny as applicable to this case. State v. Matthews, 98 Mo. 130; State v. Riney, 137 Mo. 105; State v. Dunn, 221 Mo. 530; State v. Hall, 228 Mo. 456; State v. Montgomery, 230 Mo. 660. Instruction number three is an accurate statement of the constitutive elements of the crime charged as defined in the statute and contained in the information. It sets out the facts necessary to constitute the offense of grand larceny under section 4537. Sec. 4537, R. S. 1909; State v. Lawson, 239 Mo. 600; State v. Alexander, 181 Mo. 273. (4) Instruction B was correctly and fully covered by the first instruction given by the court at defendant’s request. The court, therefore, did not err in refusing the instructions asked. State v. Crittenden, 19.1 Mo. 23; State v. Edwards, 203 Mo. 545; State v. Carpenter, 216 Mo. 448; State v. Green, 229 Mo. 655; State v. Dipley, 242 Mo. 480; State v. Connors, 245 Mo. 481; State v. Butler, 247 Mo. 699. (5) At the time the instructions on behalf of the State were given the defendant neither requested an instruction on good character nor excepted to the failure of the court to so instruct. No exception was entered at the time the instructions were given nor was the failure of the court to instruct on good character in any manner referred to in the motion for a new trial, other than by the general and indefinite allegation that the “court failed to instruct on all the law of the case. ’ ’ An allegation such as is contained in the motion for a new trial in the case at bar is insufficient to preserve the alleged error for review here. Sec. 5285, E. S. 1909; State v. Douglass, 258 Mo. 281; State v. Syclnor, 253 Mo. 380; State v. Conway, 241 Mo. 291; State v. Sykes, 248 Mo. 712; State v. Horton, 247 Mo. 663; State v. Dockery, 243 Mo. 599; State v. Chissoll, 245 Mo. 555; State v; Connors, 245 Mo. 482; State v. Bostwick, 245 Mo. 483; State v. Harris, 245 Mo. 450; State v. Well-man, 253 Mo. 316; State v. Gaultney, 242 Mo. 391; State v. Stevens, 242 Mo. 439; State v. Fisher, 162 Mo. 172; State v. Kimmell, 156 Mo. App. 472. (6) The incompetency of a witness cannot be.raised for the first time in this court. Kelly’s Crim. L. and Pr., sec. 263; State v. Crab, 121 Mo. 564; State v. Witherspoon, 231 Mo. 724; State v. Whitsett, 232 Mo. 526.
   BEOWN, J.

Convicted of stealing chickens in the nighttime, as denounced by section 4537, Eevised Statutes 1909, and his punishment fixed by a jury at two years- in the penitentiary, defendant appeals.

Defendant and one Glen Zust, his hired hand, were jointly charged with stealing thirty-one chickens from one Sherman Sutton in Macon county, Missouri, in June, 1913.

The conviction, in a large measure, rests 'upon the evidence of Glen Zust, who testified that he went with defendant at about the hour of midnight to a point within oné-eighth of a mile of the home of Sutton, where defendant remained with some sacks while Zust went to Sutton’s henhouse and stole the chickens, one by one, and carried them to defendant, who placed them in sacks and took them to his home. Zust-testified that three separate trips.were made and between twelve and sixteen chickens stolen from Sutton by him and defendant on each trip, and that a few days later defendant took the chickens to the near-by towns of Callao and New Cambria and sold them. Witness Zust further stated that his feelings toward defendant were unkind, because defendant struck him and refused to pay his wages.

Prosecuting witness Sutton testified to missing a good many chickens in June, 1913, and to the further fact that defendant raised no chickens. Two merchants, one from Callao and the other from New Cambria, testified that they bought chickens from defendant in June, 1913, about thirty altogether, and produced some of the checks which were issued in payment for the chickens.

Defendant, testifying in his own behalf, denied the theft, but admitted that he raised no chickens and that he sold chickens as testified to by the merchants. His defense was that he obtained from his father the chickens which he sold in Callao and New Cambria. On this point he was corroborated by the evidence of his father.

In rebuttal, four of defendant’s neighbors testified that his reputation for veracity was bad, and a similar number that his reputation for honesty and fair dealing was likewise bad. Two others testified that they did not know anything derogatory of defendant’s reputation.

The alleged errors relied upon for reversal will be noted in connection with the conclusions we have reached.

OPINION.

I. One of the alleged errors relied upon for reversal is the fact that Grlen Zust, who occupied the position of a co-indictee of defendant, was used as a witness for the State at a time when the charge against him had not been nolprossed. In support of this assignment defendant cites State v. Chyo Chiagk, 92 Mo. 395, and State v. Weaver, 165 Mo. 1, l. c. 12. This assignment is not open to defendant here because no objection was interposed to the incompetency of said witness Znst when he was offered by the State. This precise point was expressly ruled adversely to the insistence of defendant in the case of State v. Crab, 121 Mo. 554, l. c. 563-4. [See, also, State v. Whitsett, 232 Mo. l. c. 526.] As we do not try criminal cases de novo, no objection to the competency of a witness can be considered here which was not raised below at the proper time. If defendant had objected when Zust was offered as a witness the court could have removed his alleged disability by dismissing the charge as to him. [Sec. 5241, R. S. 1909.] It would be grossly unfair to the prosecution to allow the defendant to remain silent when the law required him to speak, and then on appeal permit him to profit by his own nonaction. This assignment is ruled against defendant.

II. Complaint is made against instruction number 1, given on the part of the State, which reads as follows:

‘ ‘ Grand larceny, as used in these instructions, is' the unlawfully, wrongfully and feloniously taking of another’s property with the wrongful, fraudulent and felonious intent to deprive the owner thereof and to malee it his own property. ’ ’

This instruction is assailed on the ground that it is not a correct definition of the offense charged against defendant, and is misleading and prejudicial. It is true that the definition of grand larceny contained in said instruction omits the fact that the chickens must have been taken in the nighttime to constitute grand larceny. It is difficult, however, to see how this instruction could have misled the jury, for the reason that the words “grand larceny” do not appear in any other instruction given, in this cause. The instruction under consideration was only intended as a definition or guide to the jury to ascertain the meaning of the words “grand larceny,” which the court evidently thought it would thereafter use in other instructions in this cause, but which words it did not subsequently use, and did not need to use. Therefore, said instruction became meaningless as a guide to the jury in this cause. 'If, under the evidence, there was a controversy or doubt as to whether defendant took the chickens from witness Sutton under some claim of right, then instruction number 1 might have proven harmful, but such an issue is not in the record. Under the evidence defendant either stole the chickens, or he did not get them from Sutton at all.

The third instruction given on the part of the State reads as follows:

“The jury are instructed that if they believe from the evidence beyond a reasonable doubt the defendant, Clarence Walls, either alone or in company with one Zust, did feloniously in the nighttime, on or about the 9th day of June, 1913, take, steal and carry away from the premises of Sherman Sutton, upon which his dwelling house was' situated,-chickens, the property of Sherman Sutton, you will find the defendant guilty as charged and assess his punishment at imprisonment in the penitentiary for a term not exceeding five years nor less than two years, or by fine not exceeding two hundred dollars, or confinement in the county jail not-exceeding two months, or by both such fine and imprisonment. ’ ’

It will be seen that the last-quoted instruction tells the jury that the taking of the chickens must have occurred in the nighttime, and further informs them that such chickens must have been stolen to constitute the crime of which defendant was charged. We, therefore, hold that, when considered with instruction number 3, given in this case, instruction number 1 was a harmless error which was not prejudicial to the defendant upon tlie merits. As no judgment should be reversed for errors that are only technical, we overrule this assignment. [State v. Richmond, 228 Mo. 362, l. c. 365.]

III. Defendant seems to be deeply grieved because he was convicted on the evidence of his accomplice Zust. However, the court gave, the usual cautionary instruction to guide the jury in * *“' * weighing the evidence of an accomplice, and this point is without merit. [State v. Sassaman, 214 Mo. 695, l. c. 729; State v. Bobbitt, 215 Mo. 10, l. c. 41; State v. Shaffer, 253 Mo. l. c. 335.]

IV. Other alleged errors relating to instructions given and refused are assigned by defendant, all of which we have carefully examined and find that they are either not preserved for review in the motion for new trial, or that they are so unimportant as not to merit special mention in our opinion. [State v. Conway, 241 Mo. 271; and State v. Douglas, 258 Mo. 281.]

There being no reversible error in the record we affirm the judgment.

Walher, P. J., concurs; Faris, Jconcurs in result.


author: WILLIAMS, C. PER CURIAM.

text:
    THE STATE v. JAMES A. NICHOLS, Appellant.
    Division Two,
    November 24, 1914.
    1. EXHIBITING DANGEROUS WEAPON: “Exhibit:” Instructions. The word “exhibit” as used in an instruction defining the ofíense of exhibiting a dangerous weapon in a rude, angry, and threatening manner is not of technical import; it is a plain English word that needs no definition.

      2. -: Evidence: Question for Jury. Evidence in a trial for exhibiting a pistol in a rude, angry, and threatening manner in the presence of others field to justify a submission of the case to the jury.
    Appeal from Stoddard Circuit Court. — Eon. W. 8. C. Walker, Judge.
    Affirmed.

      J. L. Fort and E. 8. Green for appellant.

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

Upon an information charging him, under section 4496, Revised Statutes 1909, with the crime of having exhibited a dangerous weapon, to-wit, a pistol, in a rude, angry, and threatening manner in the presence of two persons named in the information, defendant was tried in the circuit court of Stoddard county, Missouri, found guilty, and his punishment assessed at a fine of $100. Defendant duly perfected an appeal to this court.

Upon the part of the State the evidence tended to establish the following facts. Prosecuting witness E'lsworth claimed that defendant owed him for labor. Accompanied by one Birchfield, Elsworth called upon defendant and requested that he pay the debt. After some controversy over the matter, defendant, while riot denying the debt, said, <£I will not pay you.” Thereupon prosecuting witness, becoming angry, took a few steps toward defendant and defendant pulled from his shirt bosom a pistol and pointed it in the face of the prosecuting witness, causing him to stop. At this time Birchfield, who was seated a few feet away, on the other side of a fence, arose, and as he did so defendant pointed the pistol at him. During the time he was exhibiting the pistol in the above manner defendant said, “I will kill both of you G-— d— s— of b — s.” After that the defendant walked away and there was no further difficulty. The evidence further tended to show that defendant offered prosecuting witness $50 if he would come before the court and swear that he had made a false affidavit in causing defendant’s arrest; and that defendant had made attempts to have the prosecuting witness leave the county and State until the term of court was over. The evidence offered on the part of the defendant tended to prove that he did not have a pistol with him at the time of the controversy and that he did not exhibit a pistol at that time and place and that he did not use the oath above mentioned. A complete abstract of the record has been filed in this court but appellant has failed to favor us with a brief in the case. Under our statutory duty, however, we will proceed to examine the record and discuss the points properly raised by the motion for new trial.

I. The defendant requested the court to further instruct the jury by defining the word “exhibit” as used in the instruction which required the jury to find that defendant “did wilfully and feloníously in the presence of James Birch-field and George Elsworth, exhibit in a rude, angry, and threatening manner, a certain dangerous and deadly weapon, to-wit, a pistol,” etc. The court refused the request and defendant saved an exception and in his motion for new trial assigned the same as error. The court did not err in this regard. “Exhibit” as used in the instruction is a word, not of technical import, but one of plain English, well understood and commonly used. Such words need not be defined. [State v. Sattley, 131 Mo. 464, l. c. 491.]

II. It is contended that the evidence fails to prove the venue of the alleged offense. A review of the evidence does not justify this assignment of error as will at once appear from the fol-sowing qnoted portion of the testimony of one of th~ State's witnesses, to wit:

“Q. Where did this [referring to the alleged offense] take place, Mr. Elsworth? A. It took place near where I were living on Mr. Nichols’s farm.
“Q. What State and county? A. State of Missouri) County of Stoddard.”

III. It is further contended that the court erred in giving each of the instructions given on behalf of the State. No useful purpose would be subserved m a lengthy discussion of the respective instructions. We have carefully examined the same and find them to be free from error.

IV. It is contended that the evidence is insufficient to support the verdict. The evidence upon the part of the State tends to prove that defendant drew his revolver and pointed the same, first at Elsworth, and then at Birchfield, at the / # 7 time saying, “I will kill both of you G&emdash; d&emdash; s&emdash; of b&emdash;s.” This was sufficient evidence to justify the submission of the case to the triers of the facts. It is true that defendant denied having a revolver on that occasion and denied that he made the above stated threatening remarks. But that at.most presented to the jury the problem of determining from the conflict of evidence the true facts of the matter, and under such circumstances the action of the jury is final.

The judgment is affirmed.

Boy, C., concurs.

PER CURIAM.

The foreg’oing opinion of Wil-

liams, C., is adopted as the opinion of the court.

All the judges concur.


author: FARIS, J. WALKER, P. J.

text:
    THE STATE v. CLAUDE RADER, Appellant.
    Division Two,
    November 24, 1914.
    1. LARCENY: Instruction: No Felonious Intent: Steal. An instruction setting forth the elements of larceny, which omits the words “with'a felonious intent,” or words of equivalent meaning, is erroneous. At common law a felonious intent was a constituent element of larceny, and by statute the common law is in force in this State and is the only rule of decision until it has been abrogated or changed by statute, and for at least ninety years the statute concerning larceny has contained the words “feloniously steal, take and carry away,” etc.
    2. -: -:--: Words of Equivalent Meaning: Steal. Larceny is an exception to the general rule, which is that the words “felonious” and “feloniously” need not be used in an instruction, and if used they need not be defined. An instruction for grand larceny ought to require the trial jury to find that the taking was with a felonious intent, but the specific use of the word “felonious” or “feloniously” is not absolutely necessary. Words of equivalent meaning may be used in stead; but the word “steal” is not an equivalent.

      Held, by WALKER, J., that where the instruction contains the words “unlawfully steal, take and carry away” the words “with felonious intent” are not only not necessary, but their use would be both redundant and tautological.
    3. --: -: -: Accessory. Defendant, while confined in calaboose for a misdemeanor, hired Bell to feed and attend to his horses kept in a barn. The feed running short, defendant directed Bell to go to a neighbor’s barn and get corn and alfalfa. Bell did so, committing grand larceny, and concealed the articles in defendant’s barn. Bell at first denied that defendant was connected with the larceny, but later confessed, and testified he stole the corn, and alfalfa at defendant’s direction and procurement; defendant testified that he directed Bell to buy the feed, not to steal it. The case is close upon its facts. Held, that defendant was entitled to a specific instruction requiring the jury to find that defendant, in the alleged procurement of said Bell to commit the larceny charged, acted with a felonious intent. An accessory before the fact must in all cases act with a criminal intent, and where the crime charged is grand larceny he must have acted with a felonious intent.
    4. INSTRUCTIONS: Assumption of Larceny: Accessory. Where defendant is being tried as an accessory to a grand larceny committed by Bell, and Bell swears lie did steal the things charged, and defendant does not deny or controvert the theft, but denies his guilty connection therewith, it is not error for the State’s instructions to assume that Bell stole the things.
    Appeal from Boone Circuit Court. — Hon. David H. Harris, Judge.
    Reversed and remanded.

      N. T. Gentry for appellant.
    (1) The State’s instruction number 1 is erroneous, because: (a) It omits the all important part of the definition of larceny, to-wit the words “with a felonious intent.” In case where the defendant was tried for stealing a steer, these words were termed “the chief ingredient of grand larceny,” and a conviction was set aside on account of the failure to use said words in the State’s instruction. State v. Weatherman, 202 Mo. 9. In another larceny case, it was said that “the felonious intent is the material ingredient of the offense.” State v. Gray, 37 Mo. 463. In speaking of an instruction which omitted the felonious taking of the money alleged to have been stolen, and in reversing the case, this court said “Attention to the numerous adjudications of our own courts would prevent errors like this.” State v. Rutherford, 152 Mo. 132; State v. Richmond, 228 Mo. 366; State v. Casey, 207 Mo. 11; 2 Bishop’s New Crim. Law, sec. 811; State v. Moore, 101 Mo. 328; State v. Storts, 138 Mo. 137; State v. Waghatter, 177 Mo. 689; State v. Gresser, 19 Mo. 247; State v. Campbell, 108 Mo. 614. This has been the settled law of Missouri for seventy years past, ever since Judge Scott said, “To constitute this offense, therefore, in any form, there must be a taking from the possession, a carrying away against the will of the owner, and a felonious intent to convert it to the offender’s use.” Witt v. State, 9 Mo. 671; 3 Chitty, 675. It roust also be remembered that our statute, in defining this crime, uses the words, “feloniously stealing, taking and carrying away.” E. S. 1909, sec. 4535; 18 Am. & Eng. Ency. Law, 500, 502; Moore v. State, 166 S. W. (Tex. Or. App.) 1153; 8 Ency. Ev. 122; State v. Zehnder, 228 Mo. 327; State v. Littrell, 170 Mo. 13; State v. Waller, 174 Mo. 518. (b) For the further reason that there was no evidence sufficient to justify the giving of an instruction on the subject of grand larceny. There wms no evidence of the contents of the sacks that were taken by the witness Bell, neither was there any evidence of the value of the contents: and without the oats and ground alfalfa, the property was of a value less than thirty dollars. When there is no evidence of the value of the article alleged to have been stolen, it is error to instruct on the subject of grand larceny. E. S. 1909, sec. 4535; State v. Murphy, 141 Mo. 270; State v. Norman, 101 Mo. 524. (2) State’s instruction number 2 is erroneous as it assumes that Bell did take the property of W. L. Green. An instruction in a criminal case should not assume a fact that it is necessary for the State to prove. State v. Ferguson, 221 Mo. 529; State v. Drew, 179 Mo. 324; State v. Bonner, 178 Mo. 432; State v. Marsh, 171 Mo. 529; State v. ITecox, 83 Mo. 538; State v. Dilliliunty, 18 Mo. 331; State v. Wheeler, 79 Mo. 366; State v. Evans, 158 Mo. 606; State v. Bobbitt, 215 Mo. 43; State v. Yickers, 209 Mo. 33; State v. Langley, 248 Mo. 554. Instruction 2 is also erroneous in that it says “prior to the wrongful taking of the property of W. L. Green.” It should have said “prior to the felonious taking, stealing and carrying away of the property of W. L. Green.” The property might have been taken wrongfully by Bell, and yet not stolen, as defined by our criminal code. Authorities supra. “To prove the offense of the principal, it is necessary to establish not only his criminal acts that go to make up the felony, but also the criminal intention on his part.” 1 Ency. Elvid. 73; People v. Collins, 53 Cal. 185; Walker v. State, 118 Ga. 758; State v. McKean, 36 Iowa, 343. Said instruction is further erroneous in that it says, that the jury must find that the defendant “counseled and advised with said Bell,” and that he ‘ ‘ solicited him to take the same. ’ ’ Even if Bell did take the property with a felonious intent, it was necessary for the State to prove, and for the jury to find, that the defendant feloniously aided, counseled and solicited him to do the taking. This important factor (the criminal intent) is entirely omitted from this instruction. State v. Branch, 237 Mo. 252. All of our authorities hold that a defendant, in order to be held liable for the acts of the accomplice, must have had the “felonious intent.” State v. Shour, 196 Mo. 219; State v. Dalton, 27 Mo. 16; Wharton’s Crim. Ev. (8 Ed.), sec. 440; State v. Kuhlman, 152 Mo. 103; State v. Umble, 115 Mo. 461; State v. ITollenscheit, 61 Mo. 308; State v. Stacy, 103 Mo. 13; R. S. 1909, sec. 4898; State v. Hayes, 105 Mo. 84; State v. Hang Tong, 115 Mo. 389; State v. Douglass, 44 Kan. 625. And finally, instruction 2 is erroneous because it assumes that defendant intended for Bell to take Mr. Green’s property. The jury should have been required to find that, by the words, ‘ ‘ If you will go out there, I am satisfied you can get some feed out there,” the defendant intended for the witness Bell to feloniously steal said feed. The court should not have assumed, as it did by this instruction, that those words were either counsel, advice, .encouragement or command to Bell to commit larceny. 1 Ency. Evid. 78; Hicks v. United States, 150 U. S. 449; State v. Hickam, 95 Mo. 322. (3) The trial court erred in not giving an instruction on the subject of petit larceny. The-State’s evidence showed that the witness Bell took some alfalfa, corn, oats, etc., and the witness 'Crump testified that, in his opinion, that amount of feed was worth $33.30. But it urnst be remembered that he did not know the quantity of oats in the eight sacks, and no other witness testified to the quantity. Ás there was no proof as to the amount contained in the eight sacks of oats, and as this is a criminal prosecution in which nothing can be taken by inference, the oats should be eliminated in the total valuation. State v. Gabriel, 88 Mo. 643; 1 Greenl.' on Evidence (14 Ed.), sec. 6a; State v. Narzinger, 220 Mo. 53; State v. Lingle, 128 Mo. 540; State v. Ruck, 194 Mo. 430; Hamilton v. People, 113 111. 38; State v. Shields, 110 N. C. 497; R. S. 1909, sec. 4549; State v. Norman, 101 Mo. 524; State v. Sharp, 106 Mo. 109; State v. Murphy, 141 Mo. 270; 8 Ency. of Evicl. 140; Dubois v. State, 20 Ela. 841; State v. "Wood, 46 Iowa, 116; Brooks v. State, 28 Neb. 389; People v. Kehoe, 19 N. Y. Supp. 763. It is the duty of the trial court to instruct on all questions of law arising in the case, whether asked to do so or not. R. S. 1909, sec. 5231; State v. Nicholas, 222 Mo. 434.

      John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
    (1) It is not necessary that an instruction be as broad as the charge in an indictment or information, and it is not essential that it contained the word “feloniously.” The term “feloniously” is one of classification only and is therefore essential as a rule in the information, in order that the offense may be classified, but is not essential in the instruction. State v. Helton, 234 Mo. 557; State v. Richmond, 228 Mo. 362; State v. Cummings, 206 Mo. 613; State v. Rowland, 174 Mo. 373; State v. Woodward, 131 Mo. 369; State v. Barton, 142 Mo. 450; State v. Miller, 159 Mo. 113. It is not essential that an instruction on grand larceny should contain the words “without the consent of the owner.” State v. Richmond, 228 Mo. 365; State v. Waller, 174 Mo. 518. It is not essential that an instruction on grand larceny contain the words “with the felonious intent to convert the same to his own use.” The words “stolen” and “steal” charge a defendant, in a larceny charge, with the essential criminal intent, and mean a' taking away “knowingly without any claim or pretense of right” and “with intent wholly to deprive the owner of the goods,” or “to convert them to the use of the taker.” Kelley’s Criminal Law and Procedure (3 Ed.), sec. 651; Kelley v. State, 14 Ind. 36. Webster defines the word “steal” as “To take and and carry away feloniously; take clandestinely without right or lief, as the personal goods of another.” This is the common acceptation of the word “steal,” and the ordinary layman when he hears that one “did steal” is impressed with the idea that the property of another has been taken and carried away without right or leave with the intent to convert the same. State v. Fitzpatrick, 32 Atl. (Del.) 1072; 2 Abbott’s L. Diet., p. 503; Anderson’s L. Diet., p. 973; Black’s L. Diet. (2 Ed.), p. 1109; 3 Strande’s Judicial Diet., p. 9134; In re Gannett, 39 Pac. 496; Alexander v. State, 12 Tex. 540; People v. Tomlinson, 508 Cal. 19; State v. Dewitt, 142 Mo. 76. To steal in many jurisdictions has been defined to mean “to take and carry away feloniously” and “take without right or leave and with intent to keep wrongfully. ’ ’ Baldwin v. State, 46 Fla. 115; State v. Dewitt, 152 Mo. 85; People v. Lammerts, 164 N. Y. 137; Hughes v. Terr., 8 Okla. 28, 31; State v. Smith, 31 Wash. 245; State v. Richmond, 228 Mo. 362. (2) The court did not commit error in refusing appellant’s requested instruction number -2. This instruction defines an accomplice, and states that an accomplice is equally guilty with a party committing the theft. Sec. 4898, R. S. 1909; State v. Tobie, 141 Mo. 556.
   FARIS, J.

From a conviction-in the circuit court of Boone county of the crime of grand larceny and a sentence therefor to imprisonment in the penitentiary for a term of two years, defendant, pursuant to the usual procedure, has appealed.

The facts presented by this record and upon which this conviction is sought to be sustained, are unique. The defendant at the time of the commission of the larceny alleged was, and for some days prior thereto had been confined, in the calaboose of the town of Centralia upon the charge that he had illegally sold intoxicating liquor; so that his alibi was perfect, so far as concerns his actual presence at or participation in the alleged larceny. The indictment charged that the property stolen was feed and that it consisted of eight sacks of oats, ten sacks of alfalfa meal, ten bales of alfalfa hay, two bushels of corn and one bale of straw. The actual larceny of this property was accomplished by one William W. Bell, who was the principal witness for the State, and, in fact, the only witness who gave any testimony in any way connecting defendant with this theft.

According to the testimony of said Bell he had been employed by defendant to feed and care for a number of horses owned by defendant during the enforced absence arising from the imprisonment of the latter. Defendant’s horses, some seven in number, together with one of Bell’s horses, were in a barn at Centralia, which barn had been rented by and was in defendant’s possession. After Bell had been in charge of defendant’s barn and horses for some two or three days the feed for this stock ran short; thereupon Bell says he went to the calaboose to confer with defendant about the situation, and informed defendant that the feed was almost gone. Bell further says that defendant asked him if he knew where any feed could be obtained, and that he (Bell) replied that he did not. Thereupon, says Bell, the below quoted conversation ensued between him and defendant. Defendant asked Bell:‘ -‘Do you know where this big barn is out here west of town of Mr. Lee Green’s?’ I said, ‘I do not.’ He said: ‘Don’t you know where that barn is out there? ’ I said, ‘No.’ He said, ‘Maybe you know it by the John Rut-land’s barn?’ I said, ‘Yes, I know where that is,’ and he said, ‘I saw Mr. Green hauling some alfalfa out there in the summer time.’ He said: ‘If you will go out there I am satisfied you can get some feed out there. If there is any out there, get it and bring’ it in and I will pay you for it and I will allow you on what you owe me’ — on a mare I bought. He said if I didn’t want to take the wagon and team out there first I could go and.ride the pony out and find it. He said I might work a big brown horse with a big foot and an old sorrel horse with a bald face. I said all right if I could find collars. I could not find a collar for the sorrel horse. I worked my grey horse and his brown horse after this feed.”

Following’ the substance of the testimony of the witness Bell, but without further quoting his exact language, he said that he left the defendant’s barn in Centraba between twelve and one o’clock, went out into the country near the edge of town to the barn of one W. L. Green and there stole eight sacks of oats, ten bales (sic) of alfalfa meal, ten bales of alfalfa hay, two bushels of corn and one bale of straw; that he loaded this feed on a one-horse wagon and drove the same into the defendant’s barn (except for the loss of a portion thereof, which slipped from the wagon on the way), there unloaded it and placed it in the hallway of said barn, and that near defendant’s barn he broke the double-tree of his wagon. Bell further says that in the morning between five and six o’clock he went to the calaboose and again saw the defendant, told him fully what he had done, and that instructions were given him by the latter to unload and store the stolen feed and cover it with a tarpaulin and to lock tbe doors of the barn, and to fasten the windows with wire; an of which Bell did.

The witness Bell, confessedly the actual thief, was arrested for the larceny in question at about nine o’clock on the morning following the theft. At first and for some several days, Bell, while admitting his own guilt, denied that defendant was in anywise connected with this larceny. Subsequently, and after a few days, he changed his story and said, as he did upon trial in his sworn testimony, that defendant had been the active mover in procuring his commission of this larceny.

The defendant testifying for himself, while admitting that Bell had called on him at the calaboose at about 5:30 o’clock in the morning following the larceny and had then confessed to him the manner in which he had obtained the feed, yet contended that the larceny was without his prior knowledge, procuration or consent, but that on the contrary he had given Bell the money with which to purchase feed and expected him to buy feed and not steal it. Defendant also testified that Bell was stealing this feed for himself, and intended to haul it to a barn out in the country where Bell had some horses of his own, but that he had broken a double-tree while in the neighborhood of defendant’s barn, which misfortune made necessary the unloading of the feed therein and thus explained the presence of the feed in this barn.

The bad reputation of appellant for morality and truth and veracity was shown by the State. The State was also permitted to show that the constable and various other persons “ suspicioned ” from the beginning-defendant’s connection with this larceny. Since, however, no objection was made to this outrageous sort of evidence the point is not before us for review.

The actual confessed thief, Bell, was likewise indicted for this larceny and entered a plea of guilty thereto and was by the court paroled.

The above is deemed a sufficient statement of the facts as will serve to make clear the points discussed in the opinion here. These points will he further illuminated by such statement of facts as may become necessary in the opinion.

OPINION.

I. Instruction numbered one, which defendant very insistently urges as erroneous, is as follows:

‘ ‘ The court instructs the jury that if you find and believe from the evidence, beyond a reasonable doubt, that at the county of Boone and State of Missouri, on or about the 2éth day of November, 1913, one "William Bell did unlawfully steal, take and carry away the goods and chattels of W. L. Green as charged in the first count of the information in this case, and if the jury further find from the evidence that the defendant prior to the stealing, taking and carrying away of the said goods and chattels advised, procured, encouraged, counseled or commanded the said William Bell to steal, take and carry away the goods and chattels as aforesaid, and that said goods were of the value of thirty dollars or more, then you will find the defendant guilty under the first count of the information and assess his punishment at imprisonment in the penitentiary for a term not less than two years nor more than five years.”

The gravamen of defendant’s objection to the above instruction is (to express it in counsel’s own language) that “it omits the all important part of the definition of larceny, to-wit, the words, ‘with a felonious intent.’ ”

The State contends on the other hand most insistently that the use of the word “steal” comports a wrongful and fraudulent taking together with the felonious intent to convert the property in question to the use of the taker and to deprive the owner thereof permanently without his consent. Since the instruction in question uses the words “take and carry away,” we need not, and we do not, take the latter words into consideration in this discussion. Concededly they would have been used in a good instruction just as they are used in this one. In other words, the State’s position is, that since the word “steal,” which is used in this instruction, ordinarily means and is generally understood as meaning by everybody, from the “college professor to the common laborer,” to “take and carry away feloniously; to take without right or leave and with intent to keep wrongfully,” there is neither verbal nor legal necessity, nor rhyme nor reason, in using the words feloniously, or in further defining larceny when once the word ‘‘steal” is used in an instruction in connection with the words “take and carry away,” as here in this instruction. Bearing out their contention learned counsel for the State call our attention to the meaning of the word “steal” in its plain and ordinary sense, as used in our statute, and as the same is defined by lexicographers as well as by the law-writers and law dictionaries. It is defined, say counsel, by Webster’s Unabridged Dictionary, thus: “To take and carry away feloniously; to take without right or leave,” as to steal the personal goods of another. The most comprehensive definition which has been called to our attention is that found in the Century Dictionary and Cyclopedia, which defines the word “steal” to mean: “To take feloniously; take and carry away clandestinely and without leave or right; appropriate to one’s own use dishonestly or without right, permission or authority. ’ ’ So much is said to make clear and state fairly and sharply the respective contentions made.

doing back to the definition of the crime of larceny at common law we find some little contrariety of definition, but in the main find that there must be a felonious, i. e., fraudulent, unlawful and wrongful, taking and carrying away of the personal property of another, coupled with the intent to convert the property in question to the use of the taker without the owner’s consent. For illustration, Lord Coke defines it thus: “Larceny by the common law is the felonious and fraudulent talcing and carrying away by any man or woman of the mere personal goods of another.” [3 Coke’s Inst. 107.] Mr. Wharton defines it thus: “Larceny may be defined to be the fraudulent taking and carrying away of a thing without claim or right, with the intention of converting it to a-use other than that of the owner, without his consent.” [Wharton, Crim. Law (13 Ed.), sec. 1095.]

Chitty in his learned work on criminal law (3 Chitty’s Crim. Law, 917) says: “To constitute this offense [larceny], therefore, in any form, there must be a taking from the possession, a carrying away against the will of the owner, and a felonious intent to convert it [i. e., the personal property] to the offender’s use.”

Mr. East in his Pleas of the Crown (vol. 2, p. 553) defines larceny to be “the wrongful or fraudulent taking and carrying away by any person of the mere personal goods of another from any place, with a felonious intent to convert them to his (the taker’s) own use, and to make them his own property, without the consent of the owner. ” “ But even this definition, ’ ’ says Prof. Greenleaf, “though admitted by Parke, B., to be the most complete of any, was thought by him to be defective in not stating what was the meaning of the word ‘felonious,’ in that connection; which, he proceeded to say ‘might be explained to mean that there is no color of right or excuse for the act;’ adding that the ‘intent’ must be to deprive the owner, not temporarily, but permanently, of his property.” [3 G-reenleaf’s Evidence, sec. 150.] To the same general trend' are all of the other authorities, which purport to define the crime of larceny as it existed at common law. [2 Bishop’s New Crim. Law, sec. 758; 2 Roscoe’s Crim. Ev. 816; 1 Hawkins, P. C., p. 142; Rex v. Hammon, 2 Leach, 1083.]

It is the rule in this State by our solemn statute, as well as by all of the holdings of our courts, that the common law is in force and that it shall be the only rule of decision, unless, and until it has been abrogated and changed by the statute itself. [Sec. 8047, R. S. 1909; Brandon v. Carter, 119 Mo. 572.]

Turning to our statute which defines the crime of grand larceny, we find it to read, so far as pertinent here, thus: “Every person who shall be convicted of feloniously stealing, taking and carrying away any money, goods, rights in action, or other personal property or valuable thing whatsoever of the value of thirty dollars or more .. . . belonging to another, shall be deemed guilty of grand larceny. . . .” [Sec. 4535, R. S. 1909.]

It will be observed that, the word “feloniously” is put by the law-makers into (or to look at the matter from the angle of its common law origin, is left in) this statute as a part of the definition of grand larceny. Except in the above section defining grand larceny, and in section 4530 and 4531, each of which defines larceny in connection with robbery in the first and second degrees, respectively, we have not been able to find that the Legislature has left in any other criminal statute the word “feloniously” as a part of the definition of any other felony. Even in defining certain grand larcenies which are made such by reason of the special circumstances attending the commission thereof, the word ‘ ‘ feloniously ’ ’ is not used in our statutes: Compare section 4537 (theft of domestic fowls in the nighttime) ; section 4538 (theft from dwelling house, railroad cars, or the person of another); section 4541 (larceny by altering mark or brand, or by killing animals).

Prior to 1825 no attempt was made to define larceny. [See Mo. Territorial Laws, 1804-24, sec. 13, p. 18 (1804); sec. 16, p. 213 (1808); sec. 9, p. 476 (1816).] Punishment therefor was prescribed by law, but the elements which went to make up and which were required to describe and define this offense, manifestly, therefore, remained as at common law. In 1825 the words “feloniously steal, take and carry away” first came into our statute denouncing the theft of money, personal goods and chattels. [Laws 1825, sec. 25, p. 286.] Even then horse-stealing was not so defined, and still stood (denounced by a separate section, viz., section 33, p. 289, Ibid.) as at common law. In 1835 the section denouncing the theft of horses, slaves, etc., was combined with that containing the words “feloniously, steal, take and carry away,” and which denounced grand larceny as to practically all other personal property. [R. S. 1835, sec. 30, p. 177.] Ever since 1825 therefore the crime of grand larceny'defined in said section 4535, Revised Statute 1909, has been defined uniformly (exceptions as to special offenses above noted, excepted) by the use of the words “feloniously stealing, taking and carrying away.” We have seen the necessity which existed at common law to use this word “feloniously” or its apt synonyms in defining larceny, and we see that while the Legislature had the power to relieve us from the necessity of so defining it, for some reason, sufficient to itself no doubt, it has not seen fit to do so. That we might or might not deem it wise to do so, is beside the question; the fact remains that the word “feloniously” as a word of legal description, has remained in our larceny statute for ninety years precisely as it formerly stood in a majority of the common law definitions of this crime. The Legislature put this word — which upon some considerations may appear technical, useless and tautological — into our statute, or to be more exact left it therein, and it is for the Legislature to take it out. Uniformly almost, throughout the ninety years of the statute’s existence in its present form (as to this point), this court has by its decisions required that instructions defining this crime make necessary the finding of a felonious intent. Touching this phase Scott, J., in a very early case, said:

“It will thus be seen from what has been observed, that there cannot be a larceny without a-felonious intent. That the taking the personal goods of another without this intent, may be a trespass, but it cannot amount to larceny. The prisoner, then, might have done every act supposed by the instruction of the court without being guilty of a felony. The instruction defined a trespass, and not a larceny, and it was error to have told the jury that the commission of the acts mentioned in it, rendered the prisoner guilty of larceny.” [State v. Witt, 9 Mo. l. c. 665.]

Likewise, in the very late case of State v. Richmond, 228 Mo. 1. c. 366, Gantt, J., said:

“But the first instruction of the court in this case was insufficient in that it did not require the jury to find that defendant feloniously took, stole and carried away the mare mentioned in the information, nor did it require them to find that defendant took, stole and carried away the mare with the felonious intent to convert the same to his own use without the consent of the owner, and therefore we think it falls short of the instruction in the Waller case, 174 Mo. 518.”

To the same effect in substance are the holdings in the cases of State v. Gray, 37 Mo. 463; State v. Shermer, 55 Mo. 83; State v. Moore, 101 Mo. l. c. 329; State v. Speritus, 191 Mo. 24; State v. Fritchler, 54 Mo. 424; State v. Gresser, 19 Mo. 247; State v. Lackland, 136 Mo. 26; State v. Weatherman, 202 Mo. 6; State v. Rutherford, 152 Mo. 124; State v. Ware, 62 Mo. l. c. 602; State v. Campbell, 108 Mo. 611; State v. Owen, 78 Mo. l. c. 371. Similar is the language of the various text-writers upon this subject. [Kelley’s Crim. Law & Prac. 657; 2 Bishop’s New Crim. Law, sec. 840; 4 Black Com 232; 25 Cyc. 45, and cases cited.]

The case is a close one upon the .facts. The testimony of the guilty principal, if not well-nigh incredible, is at least subject to the very gravest suspicion. Por while it leaves no doubt as to the guilt of Bell, who confessedly committed the larceny, it does, when viewed as a whole, leave huge doubts as to the guilt of defendant. In such cases the jury ought to have been instructed touching the felonious intent of Bell at least, when he took the feed in question, and to this by a proper instruction should have been tacked the intent, the animo furandi, of defendant himse.lf when as alleged he advised and counseled this theft. No authority anywhere can be found upholding this instruction. It is bad by all the decisions and by the textbooks, in practically every jurisdiction where larceny is defined as our statute defines it or where the common law is in force. Therefore, though it be the passing fancy of the hour to rejoice more over the ninety and nine guilty, who, though legally convicted, are paroled, than over the one of doubtful guilt illegally convicted, to whom our judgment gives a lawful trial, we must yet abide, as our official oaths enjoin, by the statutes and the Constitution as the Legislature and the people have ordained them.

II. The question as to the form of such an instruction now becomes pertinent. This is a seriously debatable and a most puzzling problem. In a case involving-larceny the offense should be defined. Manifestly this may be done either by a separate instruction, as was approved in the case of State v. Gray, 37 Mo. l. c. 464, or by appropriately incorporating an apt definition of larceny in the main instruction, as was done in the case of State v. Yates, 159 Mo. 525. Ordinarily the words “felonious” and “feloniously” have no place in an instruction in a criminal case. [State v. Helton, 234 Mo. 559; State v. Cummings, 206 Mo. l. c. 624; State v. Scott, 109 Mo. 226.] Likewise, ordinarily, it is not necessary to define them. [State v. Barton, 142 Mo. l. c. 455; State v. Rowland, 174 Mo. 373; State v. Woodward, 131 Mo. 369; State v. Miller, 159 Mo. 113; State v. Cantlin, 118 Mo. l. c. Ill.] Bnt we have seen that at common law all the definitions of larceny either contained the word “felonious” applied to the intent with which the property was taken, or conveyed by circumlocution and the use of synonymous words, the idea that the taking was with a felonious intent. We have also seen that our statute since the year 1825 has contained as a part of the definition of grand larceny the word “feloniously.” This former state of the common law definition, and the present state of our definition, make it plain by all of the rules of law and of statutory construction that since the word “feloniously” is left in our statute, it is there for some purpose, to-wit, that by reason of it our statute retains so much of the common law definition of larceny as is comported by this word. That the use then of the word “feloniously,” or some synonymous words properly defining larceny, is required in an instruction in a prosecution for grand larceny, there is no chance for doubt. In so requiring, it is clear that larceny is an exception to the general rule which we note, supra, which says that the words “felonious” or “feloniously” need not be used in an instruction, and if used they need not be defined. Even in prosecutions for robbery in the first degree, on all-fours by analogy both in the respect that a larceny is committed ordinarily and that the statutes defining it likewise use the word “feloniously,” we find no such invariable rule. On the contrary the general rule is in robbery as in ordinary cases, that feloniously need not be used in the instruction, or if used that it need not be defined. [State v. Woodward, supra; State v. Cantlin, supra; State v. Rowland, supra.]

There is much contradiction of authority in the many reported cases in this State as to whether the specific word “feloniously” should be used in an instruction for grand larceny to define the intent with which the taking was accomplished, or whether synonymous words aptly describing the intent as we .find it in a respectable number of the definitions of larceny at common law would suffice. A small number of our cases apparently adhere half-heartedly to the. latter rule (State v. Moore, 101 Mo. 328; State v. Owen, 78 Mo. 367; State v. Weber, 156 Mo. 249); the later cases succinctly and clearly (the late case of State v. Ward, 261 Mo. 149, and State v. Yates, 159 Mo. 525, excepted) hold that the use of the specific word “feloniously” with reference to the intent, is necessary. [State v. Weatherman, 202 Mo. l. c. 9; State v. Richmond, 228 Mo. 1. c. 366.] So also did the very early cases: State v. Witt, 9 Mo. 663; State v. Gray, 37 Mo. 463. The case of States v. Yates, 159 Mo. 525, squarely holds that it is not necessary to use the specific word “feloniously” if synonymous words are used. But one or the other of these methods must be followed in an instruction for grand larceny. The .instruction here, we repeat, follows neither, and is therefore erroneous from any view. Having regard to many of the common law definitions of larceny which omitted the word “felonious” and the variant holdings on this point and on analogous questions by this court, we conclude that an instruction for grand larceny ought to require the finding by the trial jury that the taking was with a felonious intent, but that the use of the specific words “felonious” or “feloniously” is not absolutely a prerequisite. This intent may be aptly defined by terms indicating the wrongful and fraudulent, or criminal nature of the taking, coupled with words charging the taking as being without the owner’s consent and with the fraudulent intent to convert the property to the use of the taker and to deprive the owner thereof permanently. [Bodee v. State, 57 N. J. L. 140; State v. Slingerland, 19 Nev. 135; State v. Shepherd, 63 Kan. 545; State v. Yates, 159 Mo. 525; State v. Speritus, 191 Mo. 1. c. 36; 35 Cyc. 148, and cases cited.]

III. Complaint is made that the jury was not required to find that the defendant in the alleged procuring of said Bell to commit the larceny charged, acted with a felonious or criminal intent. We think this contention must be sustained. It should need no citation of authority to prove that if defendant did not intend that Bell should steal the feed, but intended, as defendant’s theory of defense urges, that Bell should buy the feed, the issue of defendant’s criminal intent should have been left to the jury under appropriate instructions. The defendant as an accessory before, the fact merely was not liable for a crime committed by Bell which was contrary to, or the result of an absolute, or even a substantial departure from, or disregard of defendant’s instructions. Defendant in what he said to Bell in counselling, or commanding the crime, must have had a criminal (here since the crime was grand larceny, a felonious) intent, though he need not have intended the precise crime which was committed. Since it is sufficient if the crime done by the principal is the probable consequence of .the crime advised by the accessory, as if one hire another to burglarize a house and in so doing the principal kill the owner of the house.

IV. The complaint made that the second instruction is erroneous because it assumes that Bell stole the feed, without leaving this fact as an issue to be found by the jury, would ordinarily be well taken, but here the whole case rests on the sworn admission of Bell that he did steal this feed. No one denies it. Defendant does not controvert it, but in terms concedes it. It is not an issue then in the case. The issue is, did defendant advise, procure or command the commission of the admitted theft of Bell? . We disallow this specific point; though again suggesting that the intent with which defendant counselled and advised said Bell, must have been a felonious intent.

Other matters are complained of, but it is not likely that they will occur again, should the case be again tried, so we need not add to the length of these views by a discussion of them.

From what is said it follows that the case should be reversed and remanded, which is accordingly ordered.

Walker, P. J., concurs in separate opinion; Brown, J., concurs in result.

WALKER, P. J.

(Separate opinion). — That the case learning on the subject is in accord with the conclusion of my learned brother that an instruction defining g’rand larceny should contain the words “with felonious intent” I do not question; but where, as in this case, the words “unlawfully steal, take and carry away” are employed, the use of the omitted words of which complaint is made, is not only redundant, but tautological.

The word “felony” simply designates crime in a general way, and larceny is but a specific designation of one of the many forms of felony; when, therefore, one is said to have unlawfully stolen, taken and carried away a certain thing, the intent and the crime are indubitably declared and nothing is added to the clearness or force of the charge by adding that the of-fence was committed with “felonious intent.”

Bound in the throes of precedent, as is said by my learned brother, it may be necessary to use these words in the instruction, and if so I am impelled to say what I have herein said that the necessity of legislative action may be emphasized. I therefore concur in the result reached in the majority opinion.


author: BROWN, J.

text:
    THE STATE v. HENRY MOULTON, Alias, Etc., Appellant.
    Division Two,
    November 24, 1914.
    1. APPEAL: Failure to Perfect. From a conviction of burglary in the second degree and a former conviction of felony, defendant on April 1, 1913, was granted an appeal; on May 31, 1913, he secured an order of the trial court requiring the stenographer to furnish him a copy of the evidence as a poor person; on April 1, 1914, he filed his petition in the Supreme Court asking to be permitted to prosecute his appeal as a poor person, which motion was sustained on April 14, 1914, . and on that day he filed a transcript of the record proper; on August 14, 1914, he filed a second transcript, which embraces a copy of an order showing the filing of the bill of exceptions and also a copy of the bill; this second transcript recites that the bill of exceptions was filed by the clerk of the trial court on June 10, 1914, and that the clerk’s certificate to said transcript is dated July 14, 1914. The Attorney-General, on October 15, 1914, moved the court to dismiss the appeal. Held, that defendant having omitted to state any reason why his second amended transcript covering the bill of exceptions was not lodged within the Supreme Court in a more expeditious manner, none of his exceptions and no part of the transcript except the record proper can be considered.
    2. --: -: Filing Bill of Exceptions: Law of 1911 and Sec. 5313. The amendment to section 2029, Revised Statutes 1909, found in Laws 1911 at page 139, does not authorize an appellant in a criminal case to file a transcript of his bill of exceptions in the Supreme Court at any time before the rules of the court require him to serve his abstract of the record upon respondent; for there is nothing in said amendment evincing any intention on the part of the General Assembly to repeal section 5313, Revised Statutes 1909, requiring appeals in criminal cases to be perfected within one year; and before a statute can be repealed there must be either a legislative design to repeal, or an irreconcilable conflict between the old and new law.
    3. -: -: -: Suggestion of Good Cause. By the express words of Sec. 5313, R. S. 1909, if a defendant in a criminal case fails to perfect his appeal within one year, he may avoid the dismissal thereof when the Attorney-General has moved to dismiss, by showing to the satisfaction of tha Supreme Court “good cause’’ for not sooner perfecting his appeal, and that right he still has since the amendment of 1911 to section 2029, but the duty still rests on him to make a satisfactory showing that he has been unremitting in his diligence to perfect his appeal within twelve months after it was granted, and if he fails to make any showing his bill pi exceptions cannot be considered. Said amendment applies to appeals in criminal cases, in so far as it permits the filing of bills of exceptions after the time granted by the trial court for filing has expired, provided such delay is not the result of appellant’s own act of omission.
    4.--: -: Filing Transcript. When a defendant in a criminal case has not obtained the permission of the Supreme Court to prosecute his appeal as a poor person until the time has expired for perfecting his appeal, he should immediately, upon obtaining such permission, tender to the clerk his transcript of the entire record, or make a satisfactory showing why he is unable to do so.
    Appeal from St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.
    Affirmed.

      Durham & Durham for appellant.

      John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
   BROWN, J.

Charged with both burglary in the second degree and a former conviction of felony, defendant was found guilty, and, under the provisions of section 4525 and 4913, adjudged to serve the term of his natural life in the penitentiary, from which judgment of conviction he appeals.

The Attorney-General has filed a motion to dismiss the defendant’s appeal oh the ground that it was not perfected within one year after the same was granted, as required by section 5313, Revised Statutes 1909.

A brief history of this appeal is necessary in reaching a correct conclusion on the motion to dismiss. The appeal was granted, on April 5, 1913; on May 31, 1913, • defendant secured an order of the trial court requiring the stenographer to furnish'him a copy of the evidence as a poor person; on April 1, 1914, he filed his petition in this court asking to be permitted to prosecute his appeal as a poor person, which motion was sustained on April 14, 1914. On the day last named defendant filed in this court a transcript of the record proper. On August 14, 1914, defendant filed a second transcript, which embraces a copy of an order showing the filing of the bill of exceptions, and also a copy of the bill of exceptions. This second transcript recites that the bill of exceptions was filed with the clerk of the trial court on June 10,1914, while the clerk’s certificate to said transcript is dated July 14, 1914.

With the record in this form the Attorney-General, on October 15, 1914, moved the court to dismiss the appeal. The defendant has filed suggestions in opposition to the motion to dismiss, in which he recites the various' steps taken by him to perfect his appeal, but omits to state any reason why his second transcript covering the bill of exceptions was not lodged in this court in a more expeditious manner. His contention is that the amendment of section 2029, Revised Statutes 1909, found in the Laws of 1911 at page 139, authorized him to file his transcript of the bill of exceptions at any time before the rules of the Supreme Court required him to serve his abstract of the record upon respondent.

This insistence of defendant cannot be sustained, because there is nothing in the aforesaid amendment which evinces an intention on the part of the General Assembly to repeal section 5313, Revised Statutes 1909, requiring appeals in this class of cases to be perfected within one year.

It is a cardinal principle of statutory construction that laws will not be repealed by mere implication. There must be a legislative design to repeal, or .an irreconcilable conflict between the old law and the new. [State ex rel. Clarke v. Wilder, 97 Mo. 27, l. c. 35; and cases there cited; State ex rel. v. Wells, 210 Mo. 1. c. 620.]

Where there is not in the new statute a manifest legislative design to repeal a law then in force, the courts will, if possible, give such construction to the new law as will allow both the old and new to stand. [State ex rel. v. Stratton, 36 Mo. l. c. 429, and cases there cited.]

By the very words of section 5313, supra, if a defendant fails to perfect his appeal in the time required by that section he may, nevertheless, avoid the dismissal of his appeal when the Attorney-General has moved in that behalf, by showing to the satisfaction of the court “good cause” for not perfecting his appeal within the statutory period. What will constitute good cause has wisely been confided to the judgment of the Supreme Court, which tribunal will determine the same on" the particular facts presented to it in each case.

Before section 2029 was amended by the Act of 1911, if an appellant had shown to the satisfaction of this court that, after due diligence on his part, he was unable to file a transcript of the record because the official stenographer or clerk had not acted in a timely manner, this court would have refused to sustain a motion to dismiss his appeal.

We see no reason why section 2029, as amended in 1911, does not apply to appeals in criminal cases, in so far as it permits the filing of bills of exceptions after the time granted by the trial court for such filing has expired, provided such failure does not grow out of any act of omission on the part of appellant. Such construction does not conflict with the provisions of section 5313, supra, which still stands in full force. When, as here, the Attorney-General’s motion to dismiss is filed, the appellant, if in default in perfecting his appeal, must make a satisfactory showing that he has been unremitting in his diligence to perfect his appeal within the twelve-month period after it was granted.

In the recent case of State v. Pieski, 248 Mo. 715, the acts which constitute the perfection of an appeal in a felony case were recited,- and we adhere to what was-said in that case. However, what was there said related chiefly to the nonpayment of the docket fee, the principal issue in that case. In said Pieski case (248 Mo. 715) we stated that the defendant’s application to prosecute his appeal as a poor person “ought to be made before the lapse of the one-year period.” The defendant’s application in the case at bar was made four days before the year had expired, and was in time.

The rule of this court permitting defendant to prosecute his appeal as a poor person (by making a proper showing’), and the statute (section 5313) permitting him to consume one whole year in perfecting his appeal, are very liberal and should not be expanded by judicial construction, for the reason that criminal laws when not administered with reasonable dispatch become a farce. When, as in this case, a defendant has not secured permission-to prosecute his appeal in this court in forma pauperis until the time has expired for perfecting his appeal he should immediately upon securing such permission tender to the clerk of this court his transcript of the entire record, or make a satisfactory showing why he is unable to do so.

In the case at bar defendant’s application to prosecute his appeal as a poor person, though filed four days within the twelve-month period, was not acted upon and sustained by this court until eight days after the year had expired; and instead of having his transcript of the entire record ready and filing same upon that date, he merely filed a certified transcript of the record proper without, in any manner, informing the court that he intended subsequently to file a transcript of his bill of exceptions.

Under these facts we hold that defendant elected to prosecute his appeal upon the record proper alone. The facts hereinbefore recited show that the defendant did not file his bill of exceptions with the clerk of the trial court until June 10, 1914, nearly three months after the twelve-month period elapsed, and the transcript of the order showing the filing of such bill of exceptions and the transcript of the bill was not lodged in this court until August 14, 1914. This second transcript shows that it was certified by the clerk of the trial court on July 14,1914, a month before it was filed here.

Upon the above facts, when the motion to dismiss his appeal was filed, the defendant, after due notice, made no showing whatever tending to indicate diligence on his part, but merely filed suggestions in opposition to the motion, in which he asserts that, under the law, he was entitled to file the transcript of his bill of exceptions at any time within thirty days before the cause was reached on our docket. His insistence cannot be sustained, and the motion to dismiss, in so far as it relates to defendant’s right to a review of the alleged errors noted in his bill of exceptions, will be sustained.

However, the transcript of the record proper having been filed at the time he was granted the right to prosecute his appeal as a poor person entitles him to a hearing upon the record proper. After a careful examination of the same we find no errors therein. The judgment is, therefore, affirmed.

Walker, P. J., and Paris, J,, concur.