author: WALKER, J. GRAVES, J. DAVID E. BLAIR, J.

text:
    THE STATE v. T. M. SAUNDERS, Appellant.
    In Banc,
    July 8, 1921.
    1 FUGITIVE FROM JUSTICE: Duty to Surrender. Where a proper demand has been made by the Governor oí one State upon the Governor of another, the duty to surrender a fugitive is not absolute, but if the laws of the State to which he has fled have been violated and he has been convicted there and is undergoing punishment the demands of the law thus violated must be satisfied before obedience is required to the provision of the Constitution of the United States directing his surrender.
    2. • — -■: -: Waiver. Despite the prior right of a State to enforce its judgment before surrendering a fugitive who has been convicted of a crime, such State may nevertheless waive the right and deliver him to the authorities from which he has fled, and such waiver may be exercised by the Governor alone, without the concurrence of its courts, although the waiver may take the form of a parole and not of a pardon.
    3. -: -: -: Parole Upon Condition. A parole of a prisoner by the Governor of Iowa in order that he may be prosecuted for a crime in this State is in the nature of a pardon and becomes absolute upon his surrender to the authorities of this State.

      Held, by GRAVES, J., with whom WOODSON and I-IIGBEE, JJ„ concur, that the document issued by the Governor of Iowa, declaring on its face that its purpose was to “suspend the further execution of the judgment” of the district court, was neither a pardon nor a parole, but being issued on the express condition that “in case of a failure to convict” the prisoner “shall be returned to the Penitentiary of Iowa for the completion of his sentence,” the Governor did not waive the right of Iowa to further punish the defendant, but the defendant was at the time of his trial and even now is, in legal fiction, an inmate of the penitentiary of that State.
    4. -■ — : Parole' Upon Condition: Bar to Prosecution: Waiver by Prisoner. The formal requirements of the Constitution of the United States, the Act of Congress and the laws of Missouri relating to fugitives from justice having been observed in securing the custody of a defendant charged with a crime in this State, the court will not concern itself with the regularity of his release by the Governor of Iowa; and the fact that he was paroled by the Governor of that State upon condition that he would he returned to Iowa to serve out his sentence if not convicted in this State of the crime charged against him, will not avail to bar a trial for such crime. The courts of Iowa were open to him to interpose objections to his release from imprisonment by the Governor of Iowa, and not having availed himself of that privilege it will be inferred that he waived the benefit of whatever right he then had to interpose his conviction and imprisonment in that State as a bar to his prosecution for a crime previously committed in this.
    5. LARCENY: Positive Proof: Instruction Concerning Other Offenses: Prejudicial. . Where the offense charged is larceny and the testimony in regard to defendant’s participation therein is direct, testimony as to other crimes is inadmissible, and an instruction telling the jury that evidence of other or similar offenses committed on or about the same time was admitted for the purpose of showing the intent, is erroneous, since proof of intent is unnecessary, because the act carries the intent with it'; and, although the other or similar offenses were a part of the same transaction and committed in connection with it, the instruction will not be held to be harmless, since in the absence of a satisfactory showing that an erroneous instruction is harmless it will be presumed to be prejudicial.

      Held, by DAVID E. BLAIR, J., dissenting, that the instruction not only told the jury that evidence of other or similar offenses were committed was admitted for the purpose of showing the intent with which defendant acted in this case, but “for the purpose of showing or tending to show a series of offenses of the same character, as throwing light on the question of his guilt or innocence of the offense charged in the information;’’ and the evidence' showing that defendant and another started out with a plan to steal chickens from a number of farmers, the instruction was harmless error, and if any prejudicial error was committed it was in the admission of the testimony.
    6. -: Instruction Concerning Other Convictions: Credibility: Inconsistency. Where defendant was charged with stealing chickens in the night time and testified in his own behalf, testimony that he had been convicted of chicken-stealing in Iowa and sentenced to the penitentiary was admissible to aid the jury in determining the credibility to be given his testimony, and an instruction limiting the evidence of his prior conviction to that purpose is not error. Nor is there any conflict or inconsistency between said instruction and another telling the jury that the evidence of other offenses could be considered only for the purpose of showing the defendant’s intent in taking the chickens.
    7. INSTRUCTIONS: Refusing Defendant’s. Where the instructions given properly present the case to the jury it is not error to refuse instructions asked by defendant.
    Appeal from Livingston Circuit Court. — IIon. Arch B. Davis, Judge. .
    Reversed and remanded.

      L. A. Martin for appellant.
    (1) The court erred in forcing defendant to trial before his sentence in Iowa had expired. There is no law in any civilized county allowing the Governor to lend a person to another government to be tried for a crime and yet retaining custody of the person and requiring the other government to return the prisoner if it fails to convict him. The court should have postponed the' trail until the termination of his sentence in the State of Iowa. State v. Buck, 120 Mo. 479. (2) The court sustained the objection of defendant as to his being convicted of another crime in Iowa, yet permitted the prosecuting attorney to continue to ask the same questions in different words, and overruled defendant’s objection to the same. The whole range of cross-examination of defendant by the prosecuting attorney, was outside the facts testified by him in his examination in chief. The court permitted the cross-examination of defendant to cover an unreasonable range about matters and subjects not noticed or testified to in his examination in chief, all tended to create a prejudice against him. This was error. State v. McGraw, 74 Mo. 573. (3) Instruction number six is a legal monstrosity. It tells the jury that the evidence of other offenses committed by defendant was admitted for the purpose of showing the intent with which the defendant acted in this casé, and to throw light oil the question of his guilt or innocence of the offense charged in the information herein and that it must be considered for this purpose only. State v. Young, 119 Mo. 495; State v. Primm, 98 Mo. 368.

      Frank W. McAllister, Attorney-General, and J. W. Broaddus, Assistant Attorney-General, for respondent.
    (1) The court was possessed with jurisdiction over the person of appellant. The Governor of Iowa suspended the further execution of the sentence imposed on appellant by the District Court of Polk County, honored the requisition of the Governor of Missouri and released appellant to the authorities of this State for trial. This he had full power to do. It was no concern of appellant if the Governor of Iowa saw fit to waive the right of that State to further punish him, for the offense of which he was convicted. 19 Cyc. 95; 12 Am. & Eng. Ency. Law, p. 604; People v. Hogan, 69 N. Y. Supp. 475; Roberts v. Reilly, 116 U. S. 96; In re Hess, 5 Kan. App. 763. (2) The instructions given by the court properly declared the law. They covered every phase of the case in a very clear manner and we cannot see how appellant could have any just cause for complaint on this score. Instruction No. 6 properly told the jury the purpose for which the evidence showing the commission of other similar offenses was admitted. State v. Gaede, 186 S. W. 1009; State v. Wilson, 223 Mo. 160; State v. Young, 266 Mo. 735. Instruction No. 7 on the question of flight for the purpose of avoiding arrest and prosecution has often met with the approval of this court. State v. Brooks, 92 Mo. 585; State v. Lewkowitz, 265 Mo. 633. Instruction 11 is the old instruction on credibility of witnesses. State v. Henderson, 186 Mo. 492; State v. Hudspeth, 159 Mo. 200. Instruction No. 13 stating the purpose of the admission of evidence tending to show that defendant had been convicted of other crimes was correct. State v. Carr, 146 Mo. 1. (3) The instructions requested by appellant were properly refused because the court had by proper instructions thoroughly presented to the jury every phase of the case, it being unnecessary to duplicate instructions. State v. Dooms, 217 S. W. 47. (4) It was proper for the State to show acts of a similar sort done by defendant in the same community at about the same time, provided the court confined the jury’s consideration thereof to the issue of intent. This the court did by Instruction 6. State v. Gaede, 186 S. W. (Mo.) 1009; State v. Toung, 266 Mo. 734; State v. Hyde, 234 Mo. 226; State v. Donaldson, 243 Mo. 475.
   WALKER, J.

The appellant was charged by information in the Circuit Court of Livingston County, with larceny in the night time, in having stolen from the premises of their owners certain domestic fowls, in violation of Section 3314, Revised Statutes 1919. Upon a trial, he was convicted and his punishment assessed at five years’ imprisonment in the penitentiary. From this judgment he appeals.

The appellant resided in that part of Chillicothe, known as Graysville; in the immediate neighborhood lived one Loney, an acquaintance and associate of the appellant. On the night of August 7, 1917, appellant came to Loney’s residence, and when the latter’s wife retired about 8:30 o’clock the men were sitting on the porch, talking. Loney testified that appellant suggested they go out and get some chickens. Loney had a horse and buggy, and at about ten or eleven o ’clock p. m. they started out into the country in this conveyance. They took five or six gunny sacks along, in which to put the chickens. When they reached a neighborhood about five miles from Chillicothe, they hitched the horse in a meadow and took from the premises of farmers residing in the neighborhood about thirty chickens. Placing them in the buggy, they started homewards; they were overtaken by some farmers in an automobile. These farmers passed them slowly on the road, proceeded some distance ahead and stopped to await their coming. There was but one man in the buggy when it was driven up to where the farmers were waiting. Loney was that man. He states that after the farmers passed him and the appellant, he remarked to the latter that “there is something up, we are caught.” To which the appellant replied with an oath, “I’m not caught,” and jumping out of the buggy disappeared in the night. Loney was taken into custody by the farmers, who took him to Chillicothe where he was placed under arrest, charged with having stolen the chickens, tried and sentenced to the penitentiary. Nothing was heard of the appellant until in July, 1918, when it was learned that he was imprisoned in the Iowa penitentiary, under a conviction for chicken-stealing in that State. When his whereabouts were discovered, application was made to the Governor of this State for a requisition for his return, which was granted and, armed with this commission, an officer went to Des Moines and presented it to the Governor of Iowa, who made an order paroling the appellant and "turning him over to the officer from Missouri, conditioned that he would be returned to Iowa to serve out his sentence if not convicted in this State of the crime charged against him.

The burden of the appellant’s defense is an alibi; and that he is being prosecuted in violation of his constitutional rights in having been tried and convicted while under sentence for a crime committed in Iowa.

According to his own testimony and that of his witnesses, at about ten or eleven o’clock on the night of Loney’s arrest, the appellant, who also owned a horse and buggy, went to his boarding place, and with the assistance of a woman who resided there they hitched the pony to the buggy, and he went to Braymer, a town about twenty miles away from Chillicothe; that from there he went to Iowa, and while in the latter State he was charged with and convicted of chicken-stealing and sent to the penitentiary. Appellant denies that he saw Loney on the night of the crime and as well his complicity therein.

As stated by Commissioner Railey, in his opinion in this case, in Division No. 2, there was an utter lack of compliance with our Rule 19 by counsel for appellant in his presentation of this case. Instead of a statement containing references to the pages of the transcript, with an assignment of errors and a brief of points and authorities, there is filed an argumentative narration of the facts in the case, as detailed by the witnesses for the appellant. This is followed by a discussion of the instructions, and what is termed a summary of the case. Despite these irregularities, we will endeavor to glean from the record the errors assigned, to determine if there is any merit in the appellant’s contentions.

I. The parole of the Governor of Iowa, which authorized the removal of the appellant from that State to this, and his trial here, are assigned as error, in that they violate the appellant’s constitutional rights in subjecting him to cruel and unusual punishment. The mistaken conclusion as to the character of appellant’s injury resulting from the course pursued, is immaterial. We are still confronted with the question as to .the authority for this procedure.

The Constitution of the United States (Section 2, Article 4) provides that “a person charged in any State with treason, felony or other crime, who shall flee from justice and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the crime.” The procedure necessary to the effective enforcement of this constitutional provision is found in Section 5278, Volume 3, U. S. Comp. Statutes, as follows: “Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, it shall be the duty of the executive authority of the State or Territory to which such person has fled, to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear.”

The obvious purpose of these provisions is to render more effective the laws for the punishment of crime. The constitutional provision not being self-executing on account of its generality, Congress has, in the statute.cited, prescribed the course to be pursued in carrying it into effect. To supplement this power, the Legislatures of the States of Missouri and Iowa have, as they are authorized to do when their acts are not repugnant to the Federal statute, enacted laws more definitely defining- the manner in which this powér is to be exercised. [Sec. 3930, R. S. 1919; Sec. 9146, Comp. Code Iowa 1919.] Obvious as is the purpose of the constitutional and statutory provisions and ample as is the procedure prescribed for their enforcement, the vexing question remains as to their application where the offender is at the time held in custody and undergoing punishment for a violation of the laws of the State to which he has fled.

After a somewhat exhaustive review of the literature on this subject, we find that while the question has not been directly ruled upon in but few cases, illumiiiating dicta are to be found in a number of others. This much has been definitely settled, that where a demand is properly made by the Governor of one State upon the Governor of another, for the surrender of a fugitive, the duty so to do is not absolute and unqualified, but depends upon the circumstances of each particular case. If the law of the State in which asylum has been sought has been violated by the fugitive and he has been convicted there and is undergoing sentence, the demands of the law thus violated may be first satisfied before obedience to the constitutional provision to surrender him arises. [Taylor v. Taintor, 16 Wall. (U. S.) 366, 4 Am. Rep. 58; People v. Hagan, 69 N. Y. Supp. 475: In re Opinion Justices, 201 Mass. 609, 24 L. R. A. (N. S.) 799; Roberts v. Reilly, 116 U. S. 80; In re Hess, 5 Kan. App. 763; Kelly v. Mangum, 145 Ga. 57; Hackney v. Welsh, 107 Ind. 253, 57 Am. Rep. 101; Ex parte Marrin, 164 Fed. 631; Cozart v. Wolf, 112 N. E. (Ind.) 241; People v. Benham, 128 N. Y. S. 610; State v. Allen, 2 Humph. (Tenn.) 258.]

Despite the rule announced in these cases as to the prior right of the asylum State to enforce its judgment before surrendering the fugitive, may it nevertheless waive this right and deliver him to the authorities of the other State?

In re Opinion of Justices, supra, which was an advisory opinion , given by the Justices of the Supreme Court of Massachusetts, to the Governor of that State, it was held that, while the State in which a fugitive is found may waive its right to punish him for a violation of its own laws and deliver him to the authorities of another State, this right cannot be exercised by the Governor alone; that he has no power to interfere with a judicial sentence except by pardon and that a waiver of punishment does not constitute a pardon. A different conclusion is reached in People ex rel. Gallagher v. Hagan, supra, in which it is held that it is no defense to a warrant of execution that a prisoner who has been convicted of crime in a State cannot be extradited until he has served his sentence; that the Governor may waive the right of the State to punish him and grant the requisition. In the discussion of this question, the court says, at page 477:

“In the very nature of things it is desirable that the power should rest somewhere in the State to refuse to give up a prisoner until he has satisfied the claims of the State against him, or to waive the enforcement' of those claims and surrender him to another State for the satisfaction of its laws. If such power did not exist, a criminal might easily evade or postpone his just punishment for the gravest of crimes committed in one State by the commission of a crime of much less magnitude in another. If a State may waive the enforcement of its claims upon a prisoner in favor of the claims of another State upon him, it becomes important to determine who is authorized to act for the State in that regard. ... In the case of a person held for an offense against the criminal law, there are no private rights to be considered and no claims to be satisfied, .'except those of the State. The question whether or not 'those claims ought not be waived in favor of the claims of a sister State is no longer a question for the judicial, but the executive branch of the Government. Indeed, the determination of the question in the case of a prisoner convicted of crime as is the relator, rests necessarily with the Governor, for even if the court should deem it to be its duty to release a convicted prisoner from the operation of a writ of extradition, because he owed the State a term of imprisonment in consequence of his conviction, the Governor, if for any reason he deemed the extradition to be desirable, could by a pardon wipe out the conviction, the debt due the State, and the only obstacle to the enforcement of the writ. . . . Practically, therefore, it rests with the executive power of the State to determine whether a person who has committed crimes both in this State and in another should be held -here to answer before he is extradited or be extradited without considering the charge against him here, and in determining that question, the offender has no voice and will not be heard. In the present case, the Governor by issuing the writ of extradition had determined that this relator should he sent to answer for his crime in New Jersey. With his reason for that determination, the court has nothing to do.”

In Roberts v. Reilly, supra, Roberts, who was a fugitive from the State of New York, was arrested in Georgia upon an extradition warrant issued by the Governor of that State. He averred that the acts with which he was charged constituted a crime against the State of Georgia, as well as the State of New York, and, therefore, that he should be held to answer the laws of Georgia before he was sent out of that State to answer the laws of another State. This contention was overruled by the Supreme Court, which held that even in such a case it was competent for the State of Georgia to waive the exercise of its jurisdiction by surrendering the fugitive to answer to the laws of New York.

In Hackney v. Welsh, supra, a petitioner for a writ of habeas corpus had committed a crime in the State of Michigan, and fleeing from justice in that State voluntarily came into Indiana, where he committed another felony, for which he was indicted, convicted and imprisoned. While he was in confinement in Indiana, a warrant issued on a requisition from the State of Michigan was received by the sheriff in whose custody he then was, but he escaped from jail and fled into Ohio, whence he was brought back to the jail from which he had escaped on a warrant issued on a requisition by the Governor of Indiana. On a failure of the prosecution against him he was surrendered to the authorities of Michigan on a requisition. The court, in ruling upon his surrender, said: “If he had not escaped it is quite clear that he could have been rightfully surrendered under the warrant issued by the Governor of this State and he was rightfully delivered to the Michigan authorities.”

In re Hess, supra, it is held that where a person is charged with the commission of an offense against two separate States and is apprehended in one of them and the law of such State has been put in force against him, it has exclusive jurisdiction of the prisoner until the demands of its laws are satisfied. If, however, the Governor of such State honors a requisition for the prisoner made upon him by the Governor of the other State and surrenders him to the demanding State, it will operate as a waiver of the jurisdiction of the asylum State.

In State v. Allen, supra, the defendant had been arrested in Tennessee, charged with murder, but while on bail was arrested as a fugitive and delivered to the Governor of Alabama. He failed to appear when his case was called for trial in the latter State. The court in an action on his bond at page 263, said: “By the Constitution and laws of the United States, the Governor of Alabama had the right to demand Allen, and the Governor of the State of Tennessee had the power to give him up. Indeed, it would have been his imperative duty to have done so, had he not rendered himself by the commission of crime amenable to our criminal law. This would have justified the Governor of Tennessee in detaining him until he had made satisfaction therefor; but he chose not to do so, but to surrender him. This, we think he might legally do, and the act was not one of supererogation. ’ ’

The rules announced in the cases cited in support of the action of the Governor of a State in granting a requisition under facts similar to the-case at bar, are more convincing than those urged in support of the rule announced in the Opinion of Justices; and the application of the former cannot but' prove more conducive to the effective administration of the criminal law than the latter.

While the premises stated in support of the rule as announced in the Opinion of Justices may be abstractly correct, the correctness of the conclusion deduced therefrom is subject to question, in that it does not follow that the Governor’s act was such as to require the concurrence of one of the other coordinate branches of the Government, viz., the judicial, to render it effective. The question arises, therefore, as to whether it may not properly be regarded as in the nature of a pardon. It released the' appellant from the punishment he was undergoing in Iowa, in order that he might be prosecuted for an offense in Missouri. Notwithstanding the condition of this release, we are of the opinion that it became absolute upon his surrender to the authorities of this State. If so, then it was unquestionably in the nature of a pardon, and hence the objections here made to the action of the Governor must go for naught. It was so held in Re Pless, and in State ex rel. v. Hagan, supra. However, if this assignment be viewed from a wider vantage, it cannot be sustained. That appellant was a fugitive from justice in having gone into another jurisdiction while a criminal charge was pending against him here does not admit of question. The formal requirements of the United States Constitution, the act of Congress, and the laws of Missouri having been observed in securing the custody of his person by the authorities of this State, we need not concern ourselves with the regularity of his release by the Governor of Iowa. The .limit of our review is confined to the validity of the charges preferred against him and the regularity of the proceedings resulting in his conviction in this State. The courts of Iowa were open to him to interpose objections to his release from imprisonment there at the time of the Governor’s action. He did not see proper to avail himself of this privilege. It may be reasonably inferred, therefore, that he waived the benefit of whatever right he then had in that behalf. It has not only been held in Iowa and our own State but elsewhere, that a defendant in a criminal case may waive the benefit of a law intended for the protection of his rights. [State v. Smith, 132 Iowa, 615; Busse v. Barr, 132 Iowa, 163; State v. Mitchell, 229 Mo. 683, 138 Am. St. 425; State v. Shellman, 192 S. W. 435; State v. Leach, 193 S. W. 916; State ex rel. McWilliams v. Dr. Dist., 269 Mo. 444; State v. Loesch, 180 S. W. 875; Harris v. People, 128 Ill. 585; Comm. v. Dailey, 12 Cush. (Mass.) 80; State v. Sackett, 39 Minn. 69; People v. Petrea, 92 N. Y. 128; Hallinger v. Davis, 146 U. S. 314. ]

II. Numerous errors are assigned in the giving of instructions. Other than those to which we will make particular reference, they conform to established precedents and were authorized by the evidence.

Instruction numbered 6 given at the request of the State is complained of. It is as follows:

“The jury are instructed that the only question before the jury is the guilt or innocence of T. M. Saunders of the offense charged in the information, that is, did he or did he not feloniously, in the night time, 0I1 or about the 7th day of August, 1917, at the County of Livingston, State of Missouri, take, steal and carry away from the premises of George W. Draper, upon which the dwelling house of said George W. Draper was situate, sixteen white Wyandotte chickens, if any, or any other number of chickens, the property of George W. Draper? And the jury are instructed that the evidence of other similar offenses committed on or about the same time by the defendant, acting alone or acting jointly with Joseph Loney, if the jury believe from the evidence that other similar offenses were so committed, was admitted for the purpose of showing the intent, if any, with which the defendant, T. M. Saunders, acted in this case, and for the purpose of showing or tending to show a series of offenses of the same character, as throwing light on the question of his guilt or innocence of the offense charged in the information herein, and must be considered by the jury for this purpose only, and unless the jury find from the evidence that the said T. M. Saunders did commit the offense charged in this case, as defined in these instructions, they are to find him not guilty.”

The offense charged is larceny. The evidence on the part of the State was direct in regard to the appellant’s participation in the crime. Under such circumstances, testimony as to other crimes was inadmissible and the instruction was erroneous in not confining the issue to relevent facts. We held in State v. Spray, 174 Mo. 569, that where the testimony establishes the commission of a larceny, proof of intent is unnecessary, because the act carries the intent with it. In the Spray case, the various rulings of this and other courts are reviewed and the conclusion reached that such testimony as that upon which the instruction under review is based, was inadmissible. In the later case of State v. Cummins, 279 Mo. 192, the admissibility of testimony of other offenses is again discussed and it is held that such testimony is not admissible in larceny cases, there being no reason for proof of motive or intent or the showing of mistakes or accident, or the identity of the person charged with the commission of the crime. These essentials to a conviction being present, the instruction was erroneous.

We are personally inclined, as we were in the disposition of this case in Division No. 2, to hold that the giving of the foregoing instruction was not such error as to be prejudicial to the appellant. The offense charged laid the ownership of the chickens stolen in one of the several owners of the chickens found in the possession of Loney the night of his arrest, after the flight of the appellant. All of these chickens were taken in the same raid upon the hen roosts of a neighborhood and the “other offenses” testified to and to which the instruction had reference were those committed on this occasion. While this instruction was, therefore, technically erroneous in being based upon inadmissible testimony, the “other or similar offenses” to which it had reference were, in reality, a part of the same transaction; the testimony in regard thereto was, therefore, almost inseparably connected with that in regard to the crime charged and it is difficult to see how the appellant could have been injured by its introduction and the giving of the instruction. •

However, my associates differ with me in this regard, holding, in this case at least, that in the absence of a satisfactory showing that an erroneous instruction is' harmless, it will be presumed to be prejudicial to the party against whom the error is committed.

Instruction numbered 7, given at the request of the State, defines the presumption arising from proof of flight. This instruction as given has frequently been approved by this court and there is no merit in the objection urged thereto. [State, v. Brook, 92 Mo. l. c. 585 and cases; State v. Lewkowitz, 265 Mo. l. c. 633; State v. Topalovacki, 213 S. W. l. c. 105.]

Error is assigned in the giving of instruction numbered 13, which is as follows:

“The jury are instructed that the evidence offered tending to show that defendant has been convicted of other crime or crimes, was admitted solely for the purpose of aiding the jury in determining the weight and credibility to be given to the testimony of defendant, and should be considered by the jury for that purpose alone, and such testimony should not be considered by the jury as any evidence of defendant’s guilt of the crime with which he here stands charged.”

Appellant was a witness in his own behalf. It was shown by his testimony that he had been convicted of chicken-stealing and sentenced to the penitentiary in Iowa. This testimony was admissible to aid the jury in determining the credibility to be' given to appellant’s testimony and its purpose was so limited in the instruction. The latter, therefore, was not error. [State v. Carr, 146 Mo. 1; State v. Boyd, 178 Mo. l. c. 13; State v. Vaughan, 199 Mo. 108.]

Properly interpreted, there is no conflict or inconsistency, as contended by the appellant, between this instruction and that numbered 6, which we have reviewed. The latter'had reference to testimony of the commission of other offenses for the purpose of showing intent; the former to testimony of a prior conviction to affect the credibility of the accused.

There was no error in the refusal of instructions asked by the appellant. Those given properly presented the case to the jury, and others were, therefore, not neeessary. [State v. Shellman, 192 S. W. 435; State v. McWilliams, 267 Mo. 437; State v. Rose, 271 Mo. 17; State v. Dooms, 217 S. W. 47.]

Other assignments are without merit, and hence have not been reviewed.

The error noted necessitates a reversal and remanding of this case and it is so ordered.

Elder, J., concurs; James T. Blair, G. J., concurs in result; Graves, J., concurs in result in separate opinion; Higbee and Woodson, JJ., concur in separate opinion of Graves, J.; David E. Blair, J., dissents in separate opinion.

GRAVES, J.

(concurring.) — I cannot concur fully in the present opinion I agree with my brother that the Governor of Iowa could waive the rights of that State in the matter of the further punishment of defendant Saunders, and that the weight of aiithority is against the ruling of the Supreme Court of Massachusetts upon that question. My disagreement is on the facts of the case pertaining to this point. As I read the record, the Governor of Iowa has never waived such right, and in legal fiction; Saunders was an inmate of the Iowa Penitentiary at the time of his trial, and even so now. The document issued by the Governor of Iowa is a legal curiosity, and should be preserved. The pertinent part reads:

“KNOW TE, That by virtue of authority in me vested by law, and for good and sufficient reasons to me appearing, I, W. L. Plarding, Governor of the State of Iowa, in the name and authority of the people thereof, do hereby SUSPEND the further execution of the j’udgment of the District Court of Polk County, whereby T. N. Saunders, No. 11268 State Penitentiary, was, at the September Term, A. D. 1917, sentenced to imprisonment in the Penitentiary at Fort Madison for a term of two years, for the offense of LARCENY OF POULTRY.

“This suspension of sentence is granted upon the recommendation of the Board of Parole and is for the purpose of releasing the prisoner to the authorities of Livingston County, State of Missouri, for trial under pending indictments, it being expressly understood that the State of Missouri assumes all expense of his removal and in case of failure to convict the said T. M. Saunders shall be returned to the Penitentiary of this State for the completion of his sentence, such return to be without expense to this State.

“The Governor of the State may for cause revoke the foregoing and direct the further execution of the sentence, or make other or further order in the case, or modification thereof.”

The Governor of Iowa, by this document never waived any rights of his State. It is neither a pardon nor a parole. He calls it neither. He calls it a suspension of a court judgment, a matter not within executive power. Counsel for the defendant said on oral argument that this instrument evidenced “a mere loan of the defendant to the State of Missouri by the State of Iowa for the purposes of the present prosecution.”

To my mind this properly names the written document from the distinguished Governor of Iowa, who has added to legal lore by the novelty of the instrument before us. On the facts, I cannot concur to that portion of my brother’s opinion which rules that the Governor had waived the rights of the State of Iowa. How this may effect the future conduct of the case, I need not discuss at this time.

As to instruction No. 6, I have no doubt that it is both erroneous and prejudicial, and so record myself. Error is presumed to be prejudicial, and the record taken as a whole.does not overcome snch presumption. With this view, my concurrence is in the result of my learned brother’s opinion.

Woodson and Higbee, JJ., concur in these views.

DAVID E. BLAIR, J.

(dissenting). — I concur in that portion of the majority opinion holding that the prosecution is not barred by the terms of the order of the Governor of Iowa in releasing defendant to the authorities of this State for prosecution in this State. In a proceeding to determine the right of the Iowa authorities to return defendant to that State some very interesting questions may be raised as to the effect of snch order. Those questions are not involved here.

I am of the opinion that the giving of instruction six is not reversible error. I do not think that proof of other crimes was proper to show intent, but the evidence of such other crimes was admissible in this case because it tended to show a series of crimes committed as part of one transaction. If defendant and Loney started out with a plan to rob the hen roosts of a number of farmers as part of one complete plan or scheme, the State should be permitted to show everything that transpired, including the commission of crimes other than the one specifically charged in the information. Instruction six told the jury the purpose of admitting such testimony was to show intent and to show a series of offenses of the same character as throwing light on the question of the guilt or innocence of defendant of the crime charged in the information. Such evidence was not admissible on the question of intent under the facts in this case, but was admissible to. show a series of offenses as part of one general plan. In my judgment this instruction, if erroneous, was harmless error. If error was committed, it was in the admission of the testimony, not in the giving of the instruction telling the jury the purpose of the admission of such testimony. I therefore dissent.


source: Caselaw Access Project

author: ELDER, J.

license: Public Domain

text:
    THE STATE ex rel. HERBERT E. JOHNSON, Appellant, v. W. A. CLARK et al., Constituting State Board of Health.
    In Banc,
    July 8, 1921.
    1. BOARD OP HEALTH: Revoking Physician’s License: Presumption That Majority Were Present. Where the record of the Board of Health shows that five of its seven members were present when ■ the charges against a physician were heard on October 28th, it will be presumed, in the absence of evidence to the contrary, that the members of the board, being public officers, discharged their duties regularly and properly, in accordance with the law, and that a majority were present on December 3rd when the license was suspended.
    2. -:--: Incompetent Evidence: Dying Declaration. A license to practice medicine is a valuable privilege, and the statutes authorizing the Board of Health to suspend a physician from practice is highly penal in its nature, and is to be construed strictly against the board and in favor of the physician; and although the board is but an administrative or ministerial body, it cannot consider evidence, make a finding and render judgment thereon, when such evidence would admittedly have been inadmissible in a court of law. Where the uncorroborated declaration attributed by another physician to a deceased woman was not made under the impression of immediate and impending death, and constituted the only positive evidence upon which the board’s order of suspension was predicated, such order based upon such incompetent evidence cannot stand.
    3. -: -: -: Reputation: Hearsay. In a hearing before the Board of Health against a physician charged with having committed abortion, testimony of another physician that “there was a great deal of belief that this man did cause abortions” and of another to the effect that from conversations with his patients he was very positive that said physician had been producing abortions, is error and prejudicial, and to base an order of suspension upon such hearsay testimony is contrary to the established principles of law.

      Appeal from Cole Circuit Court. — Hon. J. G. Slate, Judge.
    Reversed.

      Irwin & Haley for relator.
    (1) The judgment in this case is insufficient and cannot stand, because the same does not meet the requirements of Sec. 8317, R. S. 1909, now Sec. 7336, R. S. 1919. Said section, among other things, provides that: “If a majority of the board are satisfied that the licentiate is guilty of any of the offenses charged, the license shall be revoked for such period of time as may be agreed upon.” It is the position of respondents that relator was found “guilty as charged” at a meeting of the board, alleged to have been held at Jefferson City, December 3, 1920. At no place in the record does it appear what members of the board, if any, were present when such action was taken by the board; and particularly does the record fail to show that a majority of the members of the board were present at said meeting, if there was, in fact, such a meeting, or that a “majority of the board are satisfied that the licentiate is guilty of the offense charged.” (2). The license of a physician to practice medicine or surgery is a valuable property right, and a statute which authorizes the State Board of Health to revoke the license of a physician to practice medicine is highly penal. State ex rel. Spriggs v. Robinson, 253 Mo. 271; State v. Mo. Dental Board, 221 S. W. 72. (3) Sec. 7336, R. S. 1919, being a penal statute, must be strictly construed against the respondents, as the representatives of the State, and liberally construed in favor of relator. State ex rel. Spriggs v. Robinson, 253 Mov 284. (4) The testimony of Dr. Jose as to the alleged declarations of Edna Boothby was clearly inadmissible.- Sec. 4034, R. S. 1919; State v, Johnson, 118 Mo. 501; State v. Colvin, 226 Mo. 482; State y. Gow, 235 Mo. 307; State v. Horn, 204 Mo. 528; State v. Parker, 172 Mo. 194; State v. Zorn, 202 Mo. 12. (5) The testimony-of Dr. Gillham to, the effect that “there was a great deal of belief and talk that this man (referring to relator) did canse abortions” was clearly erroneous. State v. Wellman, 253 Mo. 302; State v. Teeter, 239 Mo. 475; State ex rel. v. Robinson, 253 Mo. 271. (6) Likewise is the testimony of Dr. Hill, to the effect that from conversation had bv him with natients that he was very positive that Dr. Johnson had been committing abortions, inadmissible and erroneous. Cases supra. (7) Sec. 7336, R. S. 1919, is unconstitutional and void, in that (a) Said act is in violation of Section 30, Article II, of the Constitution, in that it deprives relator of an existing vested right, and of an existing vested property right, and of liberty and property rights, without due process of law. (b) Said act is in violation of Section 28, Article II, of the Constitution, in. that this relator has been denied the right of trial by jury, (c) Said act is in violation of Article III of the Constitution, in that said act vests in the State Board of Health judicial functions.

      Jesse W. Barrett, Attorney-General, and Albert Miller, Assistant Attorney-General, for respondent; H. J. Westimes of counsel.
    (1) The order and judgment of the board is sufficient; and the board fully complied with the requirements of Sec. 7336, R. S. 1919. (a) For the purpose of this appeal, the action of the board will be presumed to be regular, in the absence of any facts to the contrary appearing'in the record. City of St. Joseph v. Farrell, 106 Mo. 441; Belkin v. Rhodes, 76 Mo. 652; Bayha v. Kessler, 79 Mo. 559; Brewing Co. v. Niederweiser, 28 Mo. App. 236. (b) In a trial, upon complaint, before the State Board of Health, it is not necessary that the proceedings should be conducted with that degree of exactness which is required upon trial for a criminal offense in an ordinary tribunal of justice. Such board is not a judicial tribunal. Meffert v. State Board of Medical Registration, 66 Kan. 710, 195 U. S. 625; Traer v. State Board of Medical Exam., 106 Iowa, 559; Munk v. Fink, 116 N. W. (Neb.) 525, 17 L. R. A. (N. S.) 439; State ex rel. v. Goodier, 195 Mo. 560, 562; Spurgeon v. Rhodes, 167 Ind. 12; People v. Apfelbaum, 251 111. 23. (2) Sec. 7336, R. S. 1919, authorizing the State Board of Health to revoke a license to practice medicine for unprofessional and dishonorable conduct, is not unconstitutional. (a) It does not violate Section 30, Article II, of the Constitution of Missouri, which declares: “That no person shall be deprived of life, liberty or property without due process of law.” State v. Hovorka, 110 N. W. (Minn.) 870; Reetz v. Michigan, 188 U. S. 505; St. Louis v. Missouri Pac. Ry. Co., 211 S. W. 672; State ex rel. v. Purl, 228 Mo. 22; Morse v. State Board of Medical Examiners, 122 S. W. (Tex.) 448; People v. Apfelbaum, 251 111. 22; Re Smith, 10 Wend. 449; State ex rel. v. Mclntqsh, 205 Mo. 636. (b) It does not violate Section 28, Article II, of the Constitution of Missouri, which declares: “The right of trial by jury,, as heretofore enjoyed, shall remain inviolate.” Munir v. Fink, 116 N. W. (Neb.) 525, 17 L. R. A. (N. S.) 439; Gulley v. Territory, 91 Pac. (Okla.), 1037; Re Smith, 10 Wend. 449. (c) It does not violate Article III of the Constitution of Missouri. The power conferred upon the State Board of Health to revoke a physician’s license for cause is an administrative, and not a judicial function. Munk v. Fink, 116 N. W. (Neb.) 525, 17 L. R. A. (N. S.) 439; State ex rel. v. Goodier, 195 Mo. 563; Spurgeon v. Rhodes, 167 Ind. 11; People v. Apfelbaum, 251 111. 23. (d) Said act is not in violation of the Fourteenth Amendment to the Constitution of the United States. It does not abridge the privileges and immunities of a citizen of the United States, and does not deprive relator of liberty and property without due process of law, nor does it deny to relator the equal protection of the law. Spurgeon v. Rhodes, 167 Ind. 12; Reetz v. Michigan, 188 U. S. 505.
   ELDER, J.

This is an appeal from a judgment rendered by the Circuit Court of Cole County upon a writ of certiorari directed to respondents as mémbers of the State Board of Health of Missouri, which judgment affirmed the action of the said board in suspending, for a period of five years from Decmber 3, 1290, the license of relator herein to practice medicine and surgery. The pleadings and facts involved are substantially as follows:

Relator is a duly licensed and practicing physician of Jefferson City, Missouri. On September 14, 1920, Honorable H. J. ‘Wosthues, Prosecuting Attorney of Cole County, filed a complaint before the State Board of Health, charging that relator had been and was guilty of unprofessional and dishonorable conduct in this, to-wit: “That he, the said Herbert E. Johnson, on or about the 26th day of August, 1920', in the City of Jefferson City, State of Missouri, unlawfully produced a criminal abortion upon one Edna Boothby, a pregnant woman; he, the said Herbert E. Johnson, being then and there aforesaid a licensed physician and then and there not intending necessary medical or surgical treatment; not being then and there engaged in an act necessary to preserve the life of said Edna Boothby, or that of an unborn child, and not then and there intending any injury other than the destruction of the pregnancy.” The said complaint prayed that an inquiry be had and that relator’s license to practice medicine and surgery in this State be revoked.

Pursuant to such complaint notice was served upon relator that a hearing upon the charges preferred would be held before the said Board of Health, and, on October 28, 1920, such hearing was had at the City of Jefferson, when and where relator appeared in person and by attorney.

The evidence for respondents consisted of the oral testimony of Doctors J. E. Jose, Prank W. Grillham and James A. Hill, all of Jefferson City.

Dr. Jose, upon direct examination, testified that he had known Edna Boothby for the last eighteen months or two years; that he treated her in her last illness; that he was called to her home on August 30th, reached there about ten o’clock in the morning and found her trying to expel an afterbirth; that he knew from the afterbirth that there must have been a baby, but that he did not see a baby. Over the objection of counsel for relator the witness was permitted to testify as follows :

“Q. Did she tell you whether or not an abortion was performed upion her? A. Yes, sir.

“Q. Did she state to you who performed the abortion? A. She said Dr. Johnson performed the abortion on her on Thursday before.

“Q. Was anyone else present at the time? A. No, sir.”

The witness further testified that he called in Doctors Grillham and Hill, but that Dr. Hill did not arrive until the girl was dead; that about one o’clock the next morning he telephoned the relator “that the girl had died and that she made a confession before she died; that if he wanted to know any of the particulars he could see me in the morning.”

On cross-examination Dr. Jose testified that Miss Boothby died on August 31st about eleven or eleven-thirty o’clock at night, while he was present; that on the day before, at the time she made the statement with reference to relator, she was rational.

“Q. Say anything about that she realized the end was near, or say anything about dying? A. No.

“Q. Or any words to that effect? A. No, nothing said about that, neither by her nor me. . . .

“Q. And outside of the girl’s statement to you, you know nothing about the trouble at all? A. I know the girl was in a family way. .... I know that the girl came to me and told me she was that way and wanted to know what she conld do to get shut of it, but that was some month or so before this. . . . And I told her I couldn’t do it, and she wanted to know what to do, and I told her to go to a maternity hospital at St. Louis. . . . She told me she knew where she could have it done here, but she didn’t like to go to the man. . . .

“Q. Did she call the man’s name? A.' Yes, sir.

“Q. Whose name did she mention, if she mentioned it? (Objection by counsel for relator. Objection overruled. . Exception saved). A. Dr. Johnson was the man that she said she could go to.”

Dr. Gillham testified that on or about August 3-Oth or 31st he was called to the home of Miss Boothby by Dr. Jose; that he found the girl “in an unconscious condition, just at the point of death; in fact, she died in an hour or forty-five minutes after I arrived on the scene.

“Q. Well, what was the cause of her death? A. Apparently a general peritonitis.

“Q. What had happened to the girl? A.- I did not make an examination, that is, a vaginal examination; her abdomen was swollen up, she was pulseless, in a state of coma; just in the last — just dying in fact.

“Q. Those things happen in an abortion performed sometimes? A. Prom the history of the case I think so. . . .

“Q. Dr. Gillham, do you know whether or not there was a great deal of belief and talk that this man did cause abortions? A. I do.” (Objection by counsel for relator).

Dr. Hill testified that he was called to attend Miss Boothby on or about August 30th or 31st and “found her breathing her last; she was practically gone when I reached there; she died in about five minutes, I judge.

“Q. Doctor, I will ask you this, do you know the reputation of Dr. Johnson with reference to committing abortions? A. Yes.

“Mr. Haleys I object to that question, because he is not charged here with committing more than on abortion; it is seeking to charge him with offenses not mentioned in the complaint or-information.

“Dr. Clark Answer the question, Doctor.” (Exception by relator). A. The reputation in regard to Dr. Johnson as to abortions I have — from patients of mine I have been very positive he has been doing it.

Mr, Haley : I move that the answer be stricken out, for the reasons assigned in the objection.” (No ruling on the motion.)

Dr. Johnson, the relator, testified in his own behalf, that he was a regular licensed physician and had been practicing in Jefferson City since 1907; that the last time Edna Boothby was at his office was “about between 9:30 and 10:30 o’clock on the twenty-seventh day of August ’ ’ and that ‘ ‘ she was there, though, on the twenty-sixth also.

“Q. On the twenty-sixth when she was there just tell the board what took place. A. She came to my office and asked me to examine her. I examined her and told her she was about five or six months pregnant. She told me that her womb was inflamed and asked me to examine her womb. I put her on the table and took my speculum and inserted it, and took a pair of dressing forceps and examined her womb, and found that her womb was inflamed about the size of a half dollar. I let her off my table and told her that her womb was inflamed and someone had been fooling with her, else she had been fooling with her. I told her I couldn’t do anything for her, because her womb was inflamed and I couldn’t fool with her. She said, ‘Doctor, if you will do something for me there is a doctor in town that will look after me.’ I told her I couldn’t do anything for her. She asked me how much she owed me for the examination. I told her she owed me two dollars and fifty cents. She says, ‘Well, I haven’t got the money now, hut I will send it to you the first of the month.’ I told her I would not be in town the first of the month, but she could send it to my wife. And she left. The following morning she came back again and asked me would I do this work for her. I told her I could not do it. And she didn’t get any further on the twenty-seventh of August than in my first front room.

“Q. Just a moment. When she said she wanted you to do this work, what was she referring to? A. She wanted me to commit an.abortion on her.

“Q. You say she came back the next day? A. She came back the next day — the next morning.

“Q. Did you take her into your private operating room? A. No sir.

‘‘Q. Was anybody present with her when she came? A. No one at all.

“Q. Did you see her after that time? A. I didn’t see her after that time.

“Q. Do you remember on the thirty-first day of August Dr. Jose called you by telephone? A. He called me about one o’clock, on the first day of September; it was about one o’clock he called me and told me that the Boothby girl died and he would like to see me at his office the next morning — that morning; I told him that I would be out of town; I had already made arrangements to go to Kansas City to take an intensive training course at the general hospital, and was due there at ten o ’clock Wednesday morning, and I had already called up the taxicab at ten o’clock that night to come after me in order to get me to the station to make the train. I had previously announced in church that I would be out of the city for thirty days. I had called up Dr. Amos here in town and asked him to look after some patients for me for thirty days while I was out of town, and told him that I was sending one of Duke Digg’s men to him Wednesday morning to get his hand treated for having’ mashed it moving a piano.

“Q. So these arrangements to leave, as I understand, were made before Dr. Jose had communicated the death of the Boothby girl to you? A. I had been making arrangements to leave ever since> we had our medical association in St. Louis in May — in June.

“Q. Now, I will ask you if you, on the twenty-sixth day of August, 1920, or at any other time, produced an abortion on — A. I did not.

“Q. Edna Boothby? A. I did not.

“Q. Did you insert anything into her womb, or open her womb? A. I didn’t open her womb. I only inserted — I made the examination of her womb by inserting a speculum and using a pledget of cotton on a dressing forcep.

“Q. Would what you did on that occasion be calculated to produce an abortion? A. Impossible, because someone had been fooling with her, or else she had been fooling with herself previous to the time.

“Q. I will ask you, Doctor, if you treated the Booth-by girl before this occasion? A. I had treated her about a year ago, possibly a little over a year.

“Q. For what? A. Venereal trouble.

“Q. Had she been to your office a number of times before? A. She had been to my office about a year, or a little over a year ago, three or four times.”

On cross-examination the relator testified:

“Q. The evidence you found, as you state, you think some one had been trying to perform an abortion on her? A. I know someone had.

“Q. It wouldn’t be the work of the doctor, would it?. A. How is that?

“Q. Would it be the work of a doctor? A. Well, I couldn’t positively . say. Her womb was inflamed. There was an inflamation about the size of a half dollar there at the os of the uterus.

“Q. Was it such an inflamation that you found at that time that would produce an abortion? A. It was.

“Q. In your judgment do you think the way you found it, do you think it would have been necessary to have done anything further? A. Well, possibly something else further could have been done.

“Q. Was there anything further' necessary to be done in order to perform the abortion? A. Not necessarily.

££Q. Did you advise her that she would have a miscarriage? A. No, I told her I couldn’t do anything for her. ’ ’

On re-cross-examinatioil relator testified:

£ £ Q. Could you see where any instrument had been used? A. Well, I — I didn’t see where any instrument had been used, but I knew- — I judged from the fact that the os was open that there had been something used.

££Q. How could you tell, doctor? A. Well, the os was open and naturally, the os being opened, I judged that something had been used.”

Subsequent to the hearing aforsaid, to-wit, on December 3, 1920, the Board of Health held a meeting at Jefferson City, at which meeting, according to the minutes thereof, the evidence adduced at the hearing given relator was. considered. The minutes do not disclose what members of the board were present. The finding and order made by the board, as recited in the minutes, is as follows:

££A motion was made, seconded and carried that it is the decision of this board that Dr. Herbert E. Johnson is guilty as charged. The following motion was made, seconded and carried: That Dr. Herbert E. Johnson being found guilty as charged, it is the judgment of this board that his Missouri state license to practice medicine and surgery be and it is so ordered hereby suspended for a period of five years from this date, and the secretary is instructed to inform Dr. Johnson of the action of this board, immediately, by registered mail.”

Pursuant to the instruction given, the secretary of the board, under date of December 3, 1920, notified relator of the action taken by the board.

Thereafter, within due time, relator filed a petition in the Circuit Court of Cole County for a writ of certiorari which was issued by the clerk in vacation and served upon respondents. Pursuant to said writ, the respondents, on December 30, 1920, filed their return thereto, such return consisting of a copy of the complaint, of notice thereof, and of the evidence taken before the Board of Health, together with extracts from the minutes of the meeting of the board at which the order of suspension was made. The order of the board having been sustained by the court, and relator having appealed, the matter comes on here for review.

I. Relator contends that the judgment rendered is insufficient for the reason that it does not meet the requirements of Section 8317, Revised Statutes 1909>now Section 7336, Revised Statutes 1919. In support of such contention learned counsel for relator argue that at no place in the record does it appear what members of the Board of Health, if any, were present at the meeting when the order suspending the license of relator was made, nor is it shown that a majority of the members of the board were present at such meeting, in compliance with the statutory provision that, “If a majority of the board are satisfied that the licentiate is guilty of any of the offenses charged, the license shall be revoked for such period of time as may be agreed upon.”

The record of the proceedings had at the hearing upon the charges preferred against relator shows that five out of the seven members of the Board of Health were present, that relator appeared at such hearing' in person and by attorney, that his counsel cross-examined the witnesses appearing against him, and that relator testified in his own behalf.' True, the record is silent as to the number of members of the board who were present at the meeting at which the license of relator was ordered suspended. However, in the absence of evidence to the contrary (of which there is none), it is to be presumed that the members of the board,, being public officers, discharged their duty regularly and properly, in accordance with the law. [City of St. Joseph v. Farrell, 106 Mo. l. c. 441.] Accordingly, the presumption follows, that when the board acted, a majority of the members thereof were present.

We must therefore rule the point against the relator.

II. Relator next assigns as error the admission of the testimony of Dr. Jose relative to the statement made by Miss Boothby as to relatior having performed an abortion upon her.

The learned Attorney-General, for respondents, insists that the practice and proceeding before the Board of Health £<is more flexible than that allowable in the courts, and any evidence which tends to prove or disprove the point in issue may be introduced, although not the best evidence obtainable.” As authority for such insistence the Attorney-General cites State ex rel. McAnally v. Goodier, 195 Mo. 551. That case was an original proceeding in prohibition, brought against the State Board of Health to prohibit it from proceeding with a hearing upon charges preferred against the relator. This court there held that prohibition would not lie, as the Board of Plealth is not a judicial body, but merely exercises ministerial functions. Based upon this enunciation, respondents would have us declare in the instant case that the board, being but an administrative or ministerial body, can consider evidence, making, a finding, and render judgment thereon, when such evidence would admittedly have been inadmissible in a court of law. Such is not our conception of what is consonant with the policy of the law.

The statute under which respondents acted (Sec. 8317, R. S. 1909, now Sec. 7336, R. S. 1919) has been held to be highly penal in its nature. [State ex rel. Spriggs v. Robinson, 253 Mo. 271.] Such being the case it is to be construed stritly against respondents and' liberally in favor of relator. [State ex rel. Spriggs v. Robinson, supra; State v. Koock, 202 Mo. 223; State v. McMahon, 234 Mo. 611.] Moreover, respondents cannot act arbitrarily, nor against the rules of evidence. [State ex rel. McCleary v. Adcock, 206 Mo. 1. c. 558.] The declaration attributed to the deceased young woman was not made under an impression of impending and immediate death, as evidenced by the decisively negative answer of Dr. Jose to the question, “Say anything about that she realized the end was near, or say anything about dying?’’ That being true, the statement would unquestionably, under the rules of evidence, have been inadmissible in a criminal proceeding before a court. [State v. Johnson 118 Mo. 491; State v. Colvin, 226 Mo. l. c. 481; State v. Nocton, 121 Mo. 537; State v. Kelleher, 201 Mo. 614; State v. Gow, 235 Mo. 307.] And we see no just reason and find no precendent to the contrary in this State, as to why a similar rule should not prevail in a hearing before the -State Board of Health, when a valuable privilege, if not a property right, depends upon the outcome of that hearing. To let down the bars and admit uncorroborated hearsay testimony, which the record here discloses constitutes the only possible positive evidence upon which the order of the board can be predicated, is not consistent with the practice which should be followed in inquiries of even a g^asi-judicial nature. The entire record being before us for review, and a careful scrutiny thereof having revealed no evidence corroborative of the declaration made by Miss Boothby, we hold that the admission and consideration of the testimony complained of was incompetent and prejudicial to the rights of the relator.

III. Relator insists that error was committed in admitting the testimony of Dr. Gillham that “there was a great deal of belief that this man (referring to relator) did cause abortions,” and the testimony of Hr. Hill to the effect that from conversations had by him with his patients he was very positive that relator had been producing abortions. To this contention we are constrained to give assent in, considering a similar question, Brown, P. J. speaking for the court in State ex rel. Spriggs v. Robinson, 253 Mo. l. c. 285, 286, said: “Coming back to the facts in this case we find no insistence in the brief of the Honorable Attomey-G-eneral, that the conviction and suspension of appellant can be substained . . . upon the evidence of Dr. Hiller to the effect that several physicians of Joplin had told him that appellant bore the reputation of being a criminal abortionist. It would certainly have been an insult to the intelligence of the age to contend that a judgment could be sustained on the mere hearsay evidence of Dr. Hiller, which ought not to have been admitted or considered by respondents.” (Italics ours). And so in the case under review, while we are in thorough sympathy with the laudable aim and purpose of the Board of Health to rid the medical profession of practitioners guilty of dishonorable conduct, we must nevertheless accord to the accused every right given him by the law. To render a conviction bottomed upon the veracity and competency of persons other than witnesses testifying under oath, which the record here would alone seem to warrant, would be contrary to the established principles of all law.

Further questions, including the unconstitutionality of the act under which respondents have proceeded, are urged by relator. From the views thus far indicated it is apparent, however, that the order made by respondents will have to be annulled, for which reason it is unnecessary for us to rule upon the additional errors assigned.

Our order is that the action of respondents in suspending the license of relator to practice medicine and surgery be quashed, and that the judgment of the circuit court affirming and upholding such action be reversed.

All concur, except James T. Blair, G. J., and David E. Blair, J., who dissent.


author: M. D. CAMPBELL, Special Judge.

text:
    THE STATE ex inf. JAMES H. CHINN, Prosecuting Attorney, ex rel. J. F. BOTTS, v. LILLIE L. HOLLOWELL, Appellant.
    In Banc,
    July 8, 1921.
    1. COUNTY SUPERINTENDENT: Qualifications. A person who, at the time of her election in April, 1919, held a certificate of the board of regents of a state normal school, which was also authenticated by the State Superintendent of Public Schools, authorizing her to teach the branches of study therein named in the public schools of Missouri for a period of two years, was qualified to hold the office of county superintendent of public schools.
    2. -: -: State Certificate. In 1911, Section 10929, Revised. Statutes 1919, was amended by striking out the word “life” and all that part thereof relative to the teacher’s certificate being issued by the State Superintendent of Public Schools, leaving a “state certificate authorizing the holder to teach in the public schools of Missouri” as the only requirement necessary to qualify a teacher to hold the office of county superintendent; and a certificate issued by the board of regents of a state normal and authenticated by the State Superintendent of Public Schools is a “state certificate authorizing the holder to teach in'the public schools of Missouri.” The law in force in April, 1919, did not require a person elected to the office of county superintendent to ncld a life certificate, or a certificate issued by the State Superintendent as the result of an examination, but only required the qualifying certificate to be a “state certificate.”
    Appeal from Schuyler Circuit Court. — Hon. N. M. Pettingill, Judge.
    Reversed and remanded (with directions).

      Higbee & Mills for appellant.
    (1) The court erred in rendering judgment of ouster. On the agreed statement of facts, the-evidence and the pleadings, appellant was eligible and possessed the qualifications for the office of county superintendent. The certificate issued to her by the First District Normal School is a state certificate within the meaning of Sec. 10929, R. S. 1919, as amended by Laws 1911, pages ,404 to 405, as it authorized her to teach in the public schools of any. county in the State. (2) The state certificate mentioned in line 13, Section 10929, R. S. 1919, was a life certificate granted by the State Superintendent as the result of an examination. This section, as amended (Laws 1911, p. 404 in line 13) reads: or shall hold a state certificate ‘ ‘ authorizing him to teach in the public schools of Missouri. ” The italicized words Avere stricken out, and the words in quotation, following “certificate,” 'added by the amendment. It is apparent that a state ■certificate may be issued by one other than the State Superintendent. They are general words, ejusdem generis, meaning a certificate from any normal school, or the normal department of the State University, or Lincoln Institute, or the State Superintendent; otherwise, the amendment is an abortion. There is no particular teacher’s certificate denominated eo nomine a state certificate. If there is anything in Section 11073 supposed to conflict with this construction, it must yield to the amendment above mentioned. The controlling words are’, “a certificate authorizing them to teach in the 'public schools.” (3) The certificate held by Mrs. HolloAvell, if not within the letter, is a state certificate within the spirt and meaning of Section 10929, as amended by the Act of 1911. Perry v. Strawbridge, 209 Mo. 639 ; 36 Cyc. 1108C; Broom’s Legal Maxims (7 Ed.) 685, 686.

      Shelton dk Shelton and Fogle & Fogle for relator.
    (1) Appellant must have been qualified to hold the office of County Superintendent of Public Schools of Schuyler County, at the time of her election. She could not qualify afterwards. She must have held the qualifying diploma or certificate at the very time of her election. See. 10929, R. S. 1919, as amended; Laws 1911, 1913, 1915, and 1917; State ex rel. “Weed v. Meek, 1.29 Mo. 431; State ex rel. Kexnpf v. Boal, 46 Mo. 528; 32 Cyc. 1462. (2) In the construction of a statute, a cardinal rule is to get at the intendment of the lawmaker and enforce that intendment. Garner v. Reynolds, 184 Mo. 688; State v. Trustees, 234 Mo. 299. (3) Words and phrases shall be taken in their plain or ordinary and usual sense. See. 8057, R. S. 1909; State ex rel. v. Riley, 203 Mo. 175; Smith v. Railway, 143 Mo. 30. (4) In arriving at the legislative intention in any given law, it is not merely useful but imperative to examine the previous condition of the written law and of the decisions construing it in order to discover what was the purpose aimed at by the amendment, the better to give such interpretation to the last law as will carry out the design for which it was passed. Gaines v. Reynolds, 184 Mo. 688.
   M. D. CAMPBELL, Special Judge.

This action. was instituted on the 16th day of May, 1920, on the information of James H. Chinn, Prosecuting Attorney of Schuyler County, at the relation of J. F. Botts, against appellant, to oust her from the office of County Superintendent of Public Schools for said county.

At the annual distxdct school xneetixxgs ixx Schuyler Couxxty in April, 1915, relator was elected to the office of Couxity Superixxtendexit of Public Schools for that county. He thereupon qualified axid was holding the office at the time of the axxnual district school meetings in April, 1919. At the annual school district meetings last referred to, relator axid appellant were the only caxididates for electioxx to said office. At said meetings appellant received the greatest number of votes. On April 5, 1919, commission was issued to her for said office by the Couxxty Clerk of Schuyler Couxxty, she took the required oath, gave the required bond, axxd was holding the office at the date of the ixxstitutioxx of this action.

On the date of appellaxxt’s election she held a certifieate of the Board of Eegents of the State Normal School of Kirksville, Missouri, which was also signed by the State Superintendent of Public Schools of Missouri, authorizing her to teach the branches therein named in the public schools of this State for a period of two years from its date.

The cause was submitted to the trial court upon an agreed statement of facts, from which it appears that relator’s only insistence is that appellant did not possess the statutory qualifications to hold the office because the certificate held by her did not comply with either of the three alternative qualifications prescribed in the Laws of 1911, as follows: “and shall at the time of his election hold a diploma from one of the state normal schools or teachers ’ college of the State University, or shall hold a state certificate authorizing him to teach in the public schools of Missouri, or shall hold a first grade county certificate authorizing him to teach in the county of which he is superintendent.”

It is contended by respondent that said certificate so issued to appellant by the Board of Eegents of the State Normal School, authenticated by the State Superintendent of Schools, is not a ‘ ‘ state certificate authorizing him to teach in the public schools of Missouri.” This contention presents the only question for decision.

Section 10929, Eevised Statutes 1909, among other provisions unnecessary to quote, provided the qualifications of a county superintendent of public schools as follows: “a life state certificate authorizing him to teach in the public schools of Missouri, granted by the State Superintendent of Public Schools as the result of an examination, which shall include the subjects of school supervision and teaching in the rural schools.” In 1911 the statute, Section 10929, was amended (Laws 1911, p. 404) by striking out the word “life” and all that part of the section relative to the certificate being issued by the State Superintendent of Public Schools as the result of an examination, thus leaving the only requirement a “state certificate authorizing the holder to teach in the public schools of Missouri.” That the certificate held by appellant is not a life certificate issued by the State Superintendent of Public Schools as the result of an examination is conceded. The law in force at the time of the election in question did not require a life certificate, nor a certificate issued by the State Superintendent of Public Schools as the result of an examination. The laws then in force required the qualifying certificate to be a “state certificate.”

¡Election 10929 as amended does not contemplate that the State Superintendent may issue a certificate. If, in the amendment of that section, the term “state certificate” had been employed without any other or further qualifying or defining words, the legislative intent might be doubtful. But those words are immediately followed by “authorizing him to teach in the public schools of Missouri,” which is in effect a legislative definition of the term ‘ ‘ state certificate. ’ ’' Having amended the statute of 1909 in so far as the same required a person elected to the office to hold a life state certificate issued by the State Superintendent as the result of an examination, and enacted in lieu thereof a provision requiring such person to hold a state certificate authorizing him to teach in the public schools of the State, the Legislature necessarily intended a certificate issued by the authority of the State and by its proper and designated officers, which authorized the person named therein to teach in the public schools of Missouri, to be a “state certificate,” and it would be an unnatural and harsh construction of the statute to hold'that such a certificate was not a “state certificate. ’ ’

The certificate held by appellant emanated from the State by statute (R. S. 1909, sec. 11073), and authorized her to teach in the public schools of Missouri, and said certificate is, therefore, a state certificate, within the meaning of the qualifying statute. It follows that appellant at the time of her election was qualified to hold the office, and that the judgment of ouster rendered by the Circuit Court of Schuyler County should be and is reversed and the cause remanded with directions to enter its judgment quashing the information.

Graves, David E. Blair and Elder, JJ., concur; James T. Blair, G. J., and Walker and Woodson, JJ., dissent. Higbee, J., not sitting.