author: WHITE, C. PER CURIAM:

text:
    THE STATE v. MIKE RUDDY, Appellant.
    Division Two,
    March 19, 1921.
    1. INDICTMENT: Perjury: Materiality of Question. At common law, a general allegation in an indictment for perjury that the question asked the witness in an investigation before a grand jury was material was insufficient, but i.t was necessary that it state facts showing its materiality; but under the statute (Sec. 3132, R. S. 1919) such general allegation is sufficient, and it is only necessary to allege that the matter or testimony alleged to be false was material to a certain matter or issue named, without setting forth the particular facts showing its materiality.
    2. -: -: Explicit Charge: Statute of Jeofails. Where the question asked of Ruddy by the grand jury was, “Have you been in the home of Jim Benvenetto and Sadie Benvenetto within the last twelve months?” an indictment charging that “whereas, the said grand jurors charge thaf in truth and in fact the said Mike Ruddy had been frequently in the said house in which the said Jim Benvenetto and Sadie Benvenetto had lived for the past twelve months” and that “the said Mike Ruddy at the time of giving said testimony well knew that on several occasions within the last twelve months he had gone into the said house in which said Jim and Sadie Benvenetto were then and there so living,” while it does not specifically allege that Ruddy had been in the house of the Benvenettos, but only in the house in which they lived, and does not positively allege that he had been in the house where they lived, but only knew he had been there, is sufficient under and its defects are cured by the Statute of Jeofails (Sec. 3908, R. S. 1919), which declares that no indictment shall be deemed invalid for omissions or irregularities “for. want of an allegation of the time or place of any material fact, when the time and place have once been stated,” nor “for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant.” The indictment does fail to contain an allegar tion of “the time or place of a material fact,” and it has a “defect or imperfection” similar in character to such omission, and these defects are cured by the statute. So also had “the time and place once been stated in the indictment” in this case.
    3. PERJURY: Evidence: Materiality. Where the grand jury was inquiring whether intoxicating liquors had been unlawfully sold at the house of Jim and Sadie Benvenetto, a question asked of Ruddy whether he had been in said house within the last year was material, and a false answer constituted perjury. A case may be built up step by step, and one of the steps in making out the ease of unlawful sale of intoxicating liquor at said house was to show that the witness visited the place where the liquor was being sold', and if he denied being there it was useless to ask him if he saw the sale of it.
    Appeal from Adair Circuit Court. — Eon. James A. Cooley, Judge.
    Affirmed.

      W. F. Frank for appellant.
    (1) Motion to quash the indictment should have been sustained, (a) For the reason that the indictment does not contradict the alleged false testimony of the defendant. There is no special averment negativing the matter set out in .the indictment, (b) Because it does not appear from the face of the indictment that the alleged false testimony was material to the investigation being conducted by the grand jury, and because no facts are set out from •which, the court could determine the materiality of the alleged false testimony. State v. Coyne, 214 Mo. 344; Kelley’s Crim. Law (3 Ed.) sec. 828; State v. Morgan, 225 S. W. 130. (2) Defendant’s instruction in the nature of a demurrer to the evidence should have been given, because the State’s evidence did not show that the alleged false testimony was material to the investigation being conducted and because the evidence did not show whether or not defendant’s presence in the house in question was material to the investigation being conducted. State v. Holden, 48 Mo. 93; State v. Keel, 54 Mo. 182. (3) Defendant’s presence in the house in question would not be material unless he, while there, learned some fact bearing: on the question as to whether or not the parties living in the house were selling intoxicating liquor illegally. If defendant while in said house learned such facts it should have been alleged and proven. Where the materiality depends upon a number of facts it becomes a mixed question of law and fact to be submitted to the jury with proper instructions. 22 Am. & Eng. Enc. Law, 688. (4) Members of the grand jury who found the indictment against accused should not have been permitted to testify to anything except what accused said in the grand jury room before them. R. S. 1909, sec. 5086; State v. Thomas, 99 Mo. 235; State v. Whelehon, 102 Mo. 17. (5) Instruction one, given at the request of the State, should not have been given, because it authorized the jury to convict defendant, if they found that accused had been in the house in question within twelve months prior to January 22, 1919, when the information does not charge that accused had been in said house within said period of time. The instruction injects an issue into the case not made by the indictment.

      Frank W. McAllester, Attorney-General, and Henry B. Himt, Assistant Attorney-General, for respondent.
    (1) The motion to quash the indictment was properly overruled, as the indictment is sufficient in form and substance, (a) The indictment contains a sufficient allegation relative to the adoption and existence of the Local Option Law in Adair County, outside the City of Kirksville. Art. Ill, Chap. 63, R. S. 1909; State v. Searcy, 39 Mo. App. 399; State v. Searcy, 46 Mo. App. 427; State v. Zehnder, 182 Mo. App. 167; State v. Dugan, 110 Mo. 143; State ex rel. v. Robertson, 262 Mo. 619. (b) Said indictment sufficiently alleges the court and term; the summoning and impaneling of the grand jury; that George Leavitt was the foreman of said grand jury and had lawful authority to administer an oath; that said grand jury on the 22nd day of January, 1919, at and during the January Term, 1919, of the Adair County Circuit Court, being duly sworn and charged to inquire within and for the body of the County of Adair, had under investigation certain alleged violations of the Local Option Law; that on said 22nd day of January, 1919, appellant was sworn by said foreman as a witness before said grand jury; that it was a material question whether said appellant had entered the dwelling of Jim and Sadie Benvenetto within twelve months prior to said January 22nd, they, the said Benvenettos, then and there being under investigation relative to their alleged sales of intoxicants at their dwelling in Adair County, Missouri outside the City of Kirksville, within said twelve months; that appellant denied being in said dwelling during the period aforesaid; the assignment of perjury. -Sec. 4344, R. S. 1909; Sec. 4350, R. S. 1909; State v. Ackerman, 214 Mo. 327; State v. Faulkner, 175 Mo. 553, 565; State v. Faulkner, 185 Mo. 679; State v. Walker, 194 Mo. ‘376; State v. Gordon, 196 Mo. 198; State v. Nelson, 146 Mo. 259. (c) The indictment properly alleges the materiality of the issue with reference to which perjury was assigned. Appellant’s demurrer was properly overruled. Sec. 4350, R. S. 1909; State v. Powers, 136 Mo. 196; State v. Nelson, 146 Mo. 261, 264; State v. Walker, 194 Mo. 370, 376; State v. Gordon, 196 Mo. 198; State v. Cave, 81 Mo. 454. (2) The trial court did not err in permitting members of the grand jury who returned the indictment at bar, to testify that numerous complaints had been made to the grand jury that the Benvenettos had been selling intoxicants in violation of the Local Option Law; and that said grand jury was investigating said complaints. Sec. 5069, R. S. 1909; Sec. 4350, R. S. 1909; Sec. 5086, R. S. 1909; Kelley’s Crim. Law, Sec. 163; State v. Ackerman, 214 Mo. 332; State v. Faulkner, 175 Mo. 556; State v. Thomas, 99 Mo. 260. (3) The trial court did not err in permitting the foreman of said grand jury to read from “Kelley’s Criminal Law and Practice” the oath he administered to appellant. Sec. 5070, R. S. 1909; 30 Cyc. 1446,1450; Sec. 6353, R. S. 1909; State v. Bennett, 102 Mo. 373; Kelley ’s Crim. Law, sec. 149. (4) Error was not committed, in permitting members of .said grand jury to testify that appellant was repeatedly asked the question with reference to which perjury was assigned. State v. Blize, 111 Mo. 473. (5) The question with reference to which perjury was assigned was a material question, and the evidence so shows. State v. Ackerman, 214 Mo. 332; State v. Jennings, 278 Mo. 552; State v. Hardiman, 277 Mo. 223. (6) A general assignment of error with reference to instructions presents nothing for review. State v. Rowe, 271 Mo. 94; State v. McBrien, 265 Mo. 605; State v. Selleck, 199 S. W.. 130.
   WHITE, C.

The appellant in the Circuit Court of Adair County, was convicted of the crime of perjury, and his punishment assessed at two years ’ imprisonment in the penitentiary.

He was charged with having sworn falsely in a matter pending before the grand jury of Adair County. At the January term, 1919 of the circuit court of that county, a grand jury had under investigation violations of the Local Option Law. It was admitted that the Local Option Law was in force in Adair County, outside the City - of Kirksville. Complaints had been made to the grand jury that Jim Benvenetto and Sadie B.envenetto, within a year before the- investigation was made, had been selling liquor at their home in the City of Novinger in Adair County, outside the corporate limits of the City of Kirksville. The defendant was brought before the grand jury, sworn, and asked this question:

“Have you been in the home of Jim Benvenetto and Sadie Benvenetto in the City of Novinger in Adair, County, Missouri, within the last twelve months ? ’ ’ Ruddy answer the question, “No.” Several members of the grand jury testified that he was several times asked the question and answered it in that manner. Four witnesses testified to having seen the defendant go into the Benvenetto home at various times between January 22,1918, and January 22, 1919 — the day on which the question was asked.

The assignments of error on which the appellant seeks a reversal relate to the sufficiency of the indictment and the evidence offered, showing the materiality of the question, which brought the alleged false answer.

I. It is first claimed that the indictment does not allege with particularity any facts which would show it was material to the matter under investigation whether Mike Ruddy visited the home of the Benvenet- ^ ,g Qr ^ ijr^g indictment, which is too long to quote in full, after setting forth the facts showing the Local Option Law in force, the empaneling and organization of the grand jury, the oath administered to the defendant, and the nature of the investigation which was in progress, contains this statement:

“That after the said oath had been so duly administered and while the said Mike Ruddy was then and there before the said grand jury, duly sworn as aforesaid, it then and there became and was a material question whether the said Mike Ruddy had in truth and in fact entered the dwelling house in which the said Jim and Sadie Benvenetto live and have lived during the last twelve months in the City of Novinger in Adair County, Missouri, and outside the corporate limits of the said City of Kirksville. ’ ’

At common law the general allegation that the question was material would have-been insufficient; facts to show the materiality of the evidence had to be alleged. [State v. Keel, 54 Mo. 182.] Bnt the statute has simplified the form of indictment in such cases. Section 3132, Revised Statutes 1919, specifies what shall be required in an indictment for perjury; as to the materiality of the false statement it is required to state only:

“That the matter or testimony alleged to be false was material to a certain matter or issue named, without setting forth the particular facts showing this materiality. ’

The statute settles that question against the contention of the appellant. [State v. Rhodes, 220 Mo. l. c. 13.]

II. It is further claimed that the “assignment of perjury” in the indictment is insufficient; that is, that the indictment does not sufficiently, explicitly and directly state the truth of the matter about which the alleged false testimony was given. The indictment contains the assignment of perjury in the following language (For convenience we arrange it in two paragraphs) :

(a) “Whereas, the said grand jurors charge that in truth and in fact the said Mike Ruddy had been frequently in the said house in the City of Novinger, Adair County, Missouri, and outside the corporate limits of the City of Kirksville, in which the- said Jim Benvenetto and Sadie Benvenetto have lived for the past twelve months; ’ ’ and
(b) “the said Mike Ruddy at the time of giving said testimony well knew that on several occasions within the -last twelve months he had gone into the said house in which the said Jim and Sadie Benvenetto were then and there so living in the said City of Novinger, Adair County, Missouri, and outside the corporate limits of the said City of Kirksville.”

It is urged by appellant that the first part of the •statement (a) does not aver that Mike Ruddy had been in the house of the Benvenettos within twelve months; it alleges only that he had been in the house where they had lived for the last twelve months, without a specific allegation that he was there at the time they were living’ there; and the latter part, (h) alleges only that Ruddy knetv he had been there within that time, which would not satisfy the requirement of the common-law rule that all averments must be made positively and directly and not inferentially.

As to the first part of the assignment (a):

The Statute of-Jeofails in regard to criminal indictments, Section 3908, Revised Statutes 1919, provides that an indictment or information shall not be deemed invalid for certain omissions and irregularities, among others, “for want of an allegation of the time or place of any material fact, when the time and place have once been stated in the indictment or information.”

The section concludes with this language: “Nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits; provided, that nothing herein shall be so construed as to render valid any indictment which does not fully inform the defendant of the offense of which he stands charged. ’ ’

“Any other defect or imperfection” is held to mean those of character similar to the ones enumerated. The trouble with the assignment of perjury is that it fails to contain an allegation of “the time or place of a material fact,” or has a “defect or imperfection,” similar in character to such omission. It comes within the curative provisions of the Statute of Jeofails. Further, the condition that “time and place had once been stated” in the indictment, as required by the statute, is met. Such time and place had been stated once in the passage quoted (b). It is also stated in another place in the indictment, as follows:
“And that the said grand jurors had been informed and advised that the defendant Mike Ruddy within the last twelve months had been a frequent visitor at the said house, in the said City of Novinger, Adair County, Missouri, and outside the corporate limits of the said City of Kirksville wherein the said Jim Benvenetto and said Sadie Benvenetto lived and where they lived during the last twelve months; and where the said Jim Benvenetto and Sadie Benvenetto, as the grand jurors believe, kept and sold intoxicating liquors within the last twelve months.”

A reasonable conclusion from the provisions of the statute is that the omission directly to state Ruddy’s visits were within the last twelve months is fully cured because the fact sufficiently appears, and the indictment did “fully inform the defendant of the offense of which he stands charged.”

Further, the latter passage quoted (b) to the effect that Mike Ruddy at the time of making the false statement, “well knew that on several occasions within the last twelve months he had gone into said house,” etc., is technically no part of the assignment of perjury, but a necessary allegation to show defendant’s knowledge that his testimony was false.

Yet, the Court of Appeals of New York, in People v. Clements, 107 N. Y. 205, held that such an allegation was sufficient assignment of perjury, using this language at page 209:

“The objection now made to the indictment is that the indictment does not, in direct terms, aver that the statements contained in the report, and in respect to which perjury is assigned, were as a matter of fact, untrue, but only that the defendant well knew them to be untrue, and well knew them to be otherwise than as stated in the report. . . . But giving full effect to the proposition that it was necessary to negative the facts which the defendant swore to on. information and belief, we think the indictment did in substance contain such a negative. It averred, in the first place, that the defendant had at the time full and certain knowledge as to the real and true condition of the' bank in respect to the matters in ques- and that he well knew that the'facts were other than as stated in the report, and well knew that the statements in the report were false. It logically follows that these averments amount to an allegation that the statements were false. His knowledge as to the matters stated being full and certain, he conld not know the statements to be false unless they were so.”

The court then calls attention to the common-law rule that allegations should not be argumentative, but holds that “a pleading is deemed to allege what can only, by fair and reasonable intendment, be implied from the facts stated.”

The same rule as to inferential assignment of perjury has been announced in other jurisdictions. [State v. Kelly, 113 Miss. 461, 1. c. 472-3; Blakey v. Commonwealth, 209 S. W. (Ky.) 516; Gregorat v. United States, 249 Fed. 470; Hardwick v. United States, 257 Fed. 505, l. c. 508; See Moore v. State, 124 Am. St. 652, where the matter is treated at length in copious notes, pp. 671-675.]

In Vermont and Arkansas it is held that an inferential statement of the facts constituting the assignment of perjury is sufficient though presented in another form. In State v. Smith, 63 Vt. 201, the perjury charged was that the defendant swore, he saw Fuller sign a certain paper; the assignment of perjury was that Fuller didn’t sign the paper. A direct assignment of perjury would have made it necessary to aver that the defendant didn’t see Fuller sign the paper. Of course on proof that Fuller did not in fact sign it the necessary inference followed that the defendant could not have seen him sign it. It was held the inferential assignment of perjury was sufficient. See also to same effect, Atkinson v. State, 202 S. W. (Ark.) 709; Lewis v. State, 78 Ark. 567; Smith v. State, 91 Ark. 200.

This court has never passed upon the question under consideration. It has consistently adhered to the rule that all averments in an indictment must state the facts constituting the offense directly, and not inferentially; but we find no ruling in this State and discover no reason why the inferential statement, as approved in the cases last cited, is not sufficient where the defendant is fully apprised of the charge he must meet and can suffer no injustice or inconvenience from the manner of stating it. Here again the.Statute of Joefails would work a cure, for it is an imperfect statement of “the time of a material fact” which elsewhere in the indictment has been stated. The assignment of perjury was sufficient.

III. Appellant further claims that even if the indictment sufficiently alleges the materiality of the evidence, as shown in Paragraph I of this opinion, the evidence is not sufficiently specific to show that it was material whether Ruddy visited-the Benvenetto house or not. He argues that it would be necessary to show he visited the house when booze was being sold there.

Gfreenleaf in his work on Evidence (16 Ed.), vol. 3, sec. 195, says:

“115. Materiality. As to the materiality of the matter to which the prisoner testified, it must appear either to have been directly pertinent to the issue or point in question, or tending to increase or diminish the damages, or to induce the jury or judge to give readier credit to the substantial part of the evidence.- But the degree of materiality is of no importance; for, if it tends to prove the matter in hand, it is enough, though it be but circumstantial.’5

This court several times has had before it for consideration the question of materiality of evidence claimed to be perjured. In an early case, State v. Lavalley, 9 Mo. 834, 1. c. 837, this court said:

“False oaths taken and which are material upon any and every collateral issue in the progress of a cause, are equally punishable as if taken upon the trial of the main issue. As in the case in I Hawk. P. C. 320, where it is said that ‘any false oath is punishable as perjury which tends to mislead the court in any of their proceedings relative to a matter, judicially before them, though it in no way affect the principal judgment.5 55

Likewise in the case of State v. Wakefield, 73 Mo. 549, l. c. 554, this court said:

“Whether all the links in the chain of circumstantial evidence necessary to its completion are supplied or not, a witness who has sworn falsely in regard to any link is as guilty as if the evidence fully supplied that and any other parts. A criminal charge is proved step by step.” (Italics ours.)

This passage is quoted in a later case, State v. Jennings, 278 Mo. l. c. 552.

This court also said in State v. Moran, 216 Mo. l. c. 561:

“It does not follow, because the matter testified to is not specially concerning the acts of the defendant in the commission of the offense, that such matter might not be made a subject upon which a charge of perjury might be predicated, if such matter is material.”

Where the testimony alleged to be false is material to any proper matter of inquiry in the case and is uttered by the-witnesses with knowledge of its falsity, it is perjury, though it may not tend directly to prove the issue. [State v. Hardiman, 277 Mo. l. c. 233.]

If it were necessary that the witnesses should have seen the Benvenettos actually selling liquor in their home, then the case would be entirely made out by his testimony alone. A case sometimes must be built up “step by step.” It was one of the steps in making out a case to show that the witness visited the place where liquor was being sold. It was another step to show that he saw it being sold. Of course, if he denied being at the place it was useless to ask him what he saw there. Whether or not he was there was material to the matter under investigation. In the case of Smith v. State, 91 Ark. 200, the facts are very similar to the facts in this case.

The defendant was fully apprised of the charge which he must be prepared to meet; he had a fair trial upon the merits of his case and Avas convicted upon sufficient evidence to sustain a verdict. The judgment is affirmed. Railey and Mozley, CC., concur.

PER CURIAM:

The foregoing opinion by White, C., is adopted as the opinion of the court.

All of the judges concur, except Higbee, P. J., not sitting.


source: Caselaw Access Project

author: RAILEY, C. PER CURIAM:

license: Public Domain

text:
    WILLIAM JONES, An Infant, By FRANK J. JONES, His Next Friend, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant.
    Division Two,
    March 19, 1921.
    1. INSTRUCTION: Credibility of Witness: Statements Contradictory of Testimony: Comment. ' It is not error to refuse an instruction telling the jury that if they find and believe that plaintiff has made statements out of court “contrary to and at variance with his testimony” they “may take this fact into consideration in determining what weight and credibility” they will give to the plaintiffs testimony. Such an instruction is a comment on plaintiff’s evidence, and should not be given. The general instruction. respecting the credibility of witnesses is sufficient.
    2. EXCESSIVE VERDICT: Passion and Prejudice: Reversal. Where plaintiff’s evidence upon the merits of the controversy is substantial and no error was committed against defendant during the progress of the trial, a verdict for a reasonable amount will be upheld on appeal. But if the verdict, in the light of -all the facts, appears to have resulted either from passion or prejudice on the part of the jury, the judgment will be reversed, and the cause remanded for a new trial.
    3. --■: -: •-: Contradictory Testimony. Where plaintiff was a trespasser upon defendant’s moving freight train, and testified that as he attempted to climb up the iron ladder of a car a brakeman on the top of the car struck him with an axe-handle, knocked him off, he fell on sandy ground which sloped towards the' track, he rolled towards the track and the car wheels cut off his foot,- and five witnesses testified that he told them on the day of the accident that he got on a car which was two or three cars ahead of the car which one of his companions had boarded, that he wanted to get off and get back to the car where such companion was, and that, in doing so, he fell off of the car and got his foot cut off, and these witnesses were either guilty of wilful perjury in so testifying, or plaintiff was guilty of perjury in denying that he made such statements to them; and where the conductor of the train and a brakeman testified that both brakemen were in the caboose at the time of the accident, and no brakeman was on the top of any car; and where the evidence is overwhelmingly against plaintiff as to the manner in which he claims to have been injured, and the jury, nevertheless, ignored it and returned a verdict for $15,000, which was $2500 more than the trial court ruled was reasonable compensation, and which the Supreme Court considers was excessive, at least to the extent of $5,000, if no error had been committed during the progress of the trial, it will be ruled that the verdict was the result of passion or prejudice on the part of the jury, and that justice requires that the judgment be reversed, and the cause remanded for a new trial.
    4. INSTRUCTION: Affidavit for Continuance. Where defendant filed its application for a continuance, based on the absence of a witness, and set up therein the facts such witness would testify if he were present, which were substantial and material to the issues, and plaintiff agreed that if such witness were present he would testify to those facts, the defendant is entitled to an instruction telling the jury that the evidence of such absent witness, as contained in said affidavit and read to them, is entitled to and should be given the same weight and credit they would give it if said witness were personally present and testified to the same facts.
    5. BRAKEMEN: Authority to Eject Trespassers. In this case there was sufficient evidence to enable the jury to determine whether or not the brakemen on defendant’s moving freight train were authorized, while acting in the line of their duty, to eject trespassers from the train.
    6. INSTRUCTIONS: Measure of Damages: Misleading. If defendant is fearful that a given instruction on the measure of damages, of itself unobjectionable, may in some way mislead the jury, it is defendant’s duty to ask for an instruction declaratory of the law from its viewpoint.
    Appeal from. St. Louis City Circuit Court. — Hon. Frank Landwehr, Judge.
    Reversed and remanded.

      W. F. Evans, E. T. Miller and A. P. Stewart for appellant.
    (1) The demurrer to tlie evidence should have been sustained, and the peremptory instruction requested at the close of the whole case should have been given, (a) Plaintiff’s evidence as to the manner in which he received his injuries is beyond belief and does not comport with either physical facts or laws, (b) The testimony of plaintiff’s witnesses, Warmack and Cooper, that it was the duty of brakemen on defendant’s freight trains to expel trespassers therefrom was based on their conclusions, and hence was incompetent and cannot support the verdict. Kane v. Railway, 251 Mo. 44; Davidson v. Railway, 207 S. W. 277. The remaining evidence was not sufficient to show that the duties of defendant’s brakemen included the ejection of trespassers from freight trains. -This will not be presumed, but the authority of a brakeman in that behalf must be established aliunde the mere fact that he is a brakeman. Farber v. Railway, 116 Mo. 93; Krueger v. Railway, 84 Mo. App. 366; Marcum v. Railway, 139 Mo. App. 220. (c) Even if plaintiff’s evidence could be said to be sufficient to raise a presumption that it was the duty of brakemen on defendant’s freight trains to expel trespassers, and thus make out a prima-facie case, yet this presumption was overcome by positive evidence to the contrary, and since plaintiff then produced no positive testimony to disprove defendant’s positive testimony, his prima-facie. case falls. Guthrie v. Holmes, 217 Mo. 233. (2) Plaintiff’s instruction on the measure of damages is erroneous. This instruction did not confine the jury to a consideration of the evidence in assessing the damages, but was a roving commission to the jury to assess the damages at such sum as, in their opinion, would fairly compensate plaintiff, without any regard whatever to the evidence. This error was not cured by any instruction given at the request of defendant. Ganz v. Railway, 220 S. W. (Mo.) 497. (3) The court erred in refusing to give defendant’s requested instruction “C.” Under the statute the facts set forth in an affidavit for a continuance shall, if the opposite party admits that the absent witness would, if present, swear to such facts, be read as the evidence of such witness. To give the moving party the benefit of such evidence which the statute bestows, the court should instruct the jury that such evidence is entitled to the same weight and credit they would give it if the witness were personally present and testified to the same facts before them. Sec. 1960, R. S. 1909. (4) The verdict was grossly excessive, and clearly the result of prejudice and passion on the part of the jury, and notwithstanding the remittitur forced by the court nisi, the judgment is still excessive. Chitty v. Transit Co., 166 Mo. 443; Stolze v. Transit Co., 188 Mo. 590; Nicholds v. Class Co., 126 Mo. 68; O’Connell v. Railway, 106 Mo. 485; Brady v. Railroad, 206 Mo. 540; Johnson v. Coal Co., 205 S. W. 619; Newcomb v. Railroad, 182 Mo. 726; Lessenden v. Railroad, 238 Mo. 265; Greenwell v. Railway, 222 S. W. 410.

      Earl M. Pirkey and Arthur Stahl for respondent.
    (1) Appellant cannot complain of alleged error in respondent’s instruction where he gives or requests an instruction containing the same thing. Smart v. Kansas City, 208 Mo. 204; Williams v. Elec. Co., 274 Mo. 14. (2) Testimony that brakemen customarily put off persons who were not entitled to be transported on freight trains, and this was done over a long period of time, will. establish the brakeman’s authority to eject persons who have no right to ride. Markham v. Railroad, 139 Mo. App. 220. (3) To show the authority of a brakeman to eject trespassers it is competent for a brakeman or conductor to testify what the duties of a brakeman are. Farber v. Mo. Pac. Ry. Co., 139 Mo. 279. (4) Defendant is liable for the acts of its brakeman if what he did was within the scope of the brakeman’s employment. Droelshagen v. Railroad, 186 Mo. 266. (5) It is also said that defendant is liable for the acts of its employee “when done in the course of his employment.” Farber v. Mo. Pac. Ry. Co., 116 Mo. 92; Gardner v. St. Louis Screw Co., 201 Mo. App. 358; Whiteaker v. Railroad, 252 Mo. 458. (6) The omission from an instruction of the cautionary requirement to find from the evidence or weight of the evidence is not reversible error. Ullrich v. Ry. Co., 220 S. W. 686; Zackwick y. Fire Ins. Co., 225 S. W. 139; Cody v. Gremmer, 121 Mo. App. 359; Compressed Air Co. v. Fulton, 166 Mo. App. 28; Logan v. Field, 192 Mo. 69; Strode v. Conkey, 106 Mo. App. 15; Rogers & Powers v. Warren, 75 Mo. App. 275; Baker y. Ry. Co., 52 Mo. App. 606. (7) It is improper to single out a witness and comment on a part of his evidence; for this reason the court properly refused appellant’s instruction B. Landrum v. Railway, 132 Mo. App. 721; Huff v. Ry. Co., 213 Mo. 514; Quinn v. Railway, 218 Mo. 555; Zander v. Transit Co., 206 Mo. 46Í.
   RAILEY, C.

This action was commenced in the Circuit Court of the- City of St. Louis, on August 20, 1917. The case was tried on the second amended petition, which states in substance, that plaintiff was a minor between twelve and fifteen years of age; that Prank J. Jones was appointed his next friend, qualified as such, and prosecutes this action in that behalf; that defendant is a railroad corporation and, in July, 1917, operated a line of railroad from Starland, in Perry County, Missouri, to St. Louis, in said State; that on or about July 17,1917, at or near Crystal City, Missouri, plaintiff boarded one of defendant’s freight trains on said road, bound for St. Louis; that while on said train, and while it was in rapid motion, one of defendant’s servants in charge of said train did willfully, int.entonally, wrongfully and maliciously threaten to strike plaintiff, and did strike him, whereby he was caused to fall from said train while it was in rapid motion, and one or more wheels of said train ran over, crushed, lacerated, tore and bruised plaintiff’s left foot, so that the front half thereof had to be, and was amputated; that plaintiff’s head, limbs and body were bruised; that his back was lacerated, torn and brused, and plaintiff sustained a great nervous shock. “That said acts of said servant in charge of said freight train were within the scope- of his employment and authority under defendant, and were done while he was undertaking to serve defendant pursuant to his said employment and while he was in the course of his employment under defendant; that by his injuries so sustained, plaintiff has suffered,” etc. The petition concludes with a prayer for $20,000 actual damages and $10,000 punitive damages.

The answer is a general denial.

It appears from the evidence that plaintiff, who was about fourteen years of age, and two companions, Edward and William Hawver, about fifteen and thirteen years of age respectively, on July 17, 1917, were in Crystal City aforesaid, and were desirous of returning to St. Louis, Missouri, where they lived; that about 300 or 400 feet north of defendant’s depot at Crystal City, a bridge was in course of erection over defendant’s track; that’about one o’clock on that day a north-bound freight train passed through Crystal City on its way to St. Louis; that plaintiff and the older Hawver boy, Edward, according to their testimony, got on this train from the west side, while it was in motion; that the younger Hawver boy did not get on the train, but ran along the side of same. Plaintiff testified, in substance, that he and his two companions were standing beside the track about fifteen feet north of the bridge when the train came along; that the train was running about fifteen or twenty miles an hour; that Edward Hawver got on the side of a car, near the engine, and plaintiff got on two cars behind him; that the smaller boy did not get on, but ran along by the side of the train; that plaintiff climbed on a box car by the iron hand-holds until he got within about two feet of the top of same; that he climbed about four or five of those steps before he was hurt. He testified “that the brakeman was on top of the car with a stick and he said, ‘what are you doing there?’ and he hit me with the stick, and I fell off;” that this man struck him on the left shoulder; that he did not know what the man hit him with, but it was about two feet long and looked like an axe handle; that he hit plaintiff hard, and knocked him off the train; that plaintiff fell on his back on the sand; that the latter slanted to the track; that plaintiff slipped under the train and his left foot was cut off; that the brakeman of that train struck him.

He further testified on cross-examination: “Q. How did you know that man was a brakeman on that train? A. I have saw them before.”

He said the brakeman just hit him once; that he had ridden about 100 feet from where he got on the train.

Plaintiff was then taken to the office of Hr. Commerford, where his injuries were dressed.

Edward Ilawver testified by deposition that . “the three of us got on; we boarded the train. I was on a coal car near the middle of the train and the two other boys got on two cars back of me. I saw a brakeman on the train, and he told the boy to get off; hollered and. told him to get off. The train was in motion when this was done; the freight train was running about fifteen or twenty miles an hour. I first knew that an accident had occurred when my brother hollered for me.”

On cross-examination, he testified, in substance, that he did not see his brother get on the train; that the latter had gone about two or three city blocks from the bridge when plaintiff got off, and the train was going fifteen or twenty miles an hour when he got off; that the brakeman whom he saw was on top of the box-car where plaintiff was; that plaintiff was on the back end of the ^ that the brakeman told plaintiff to get off, but did not say anything to witness; that as soon as the brakeman said get off, plaintiff hopped off and fell; that his brother was running along the side of the train behind witness; that he was running at the side of the car Jones was on, all the time.

William Hawver testified, in substance that his brother first boarded a car, and plaintiff got on a car two cars further back; that, “I saw a brakeman holler at the Jones boy and scared him and he sort of ran backwards and fell, and cut his foot off, and I hollered up to my brother to get off the train;” that the train was going fifteen or twenty miles per hour; that plaintiff got on two cars further back than his brother; that as witness was going along the side of the freight train, he saw a brakeman hollering at Jones and trying to scare him; that he made Jones unbalance liimself, and he fell backwards; that his foot went right underneath the car, and his foot was cut off up to the center of his arch; that he saw the brakeman on top of the box car; that he had a club in his hand, and it looked like an axe handle; that he picked it up and started to hit plaintiff; that he hollered at plaintiff, the latter overbalanced himself and went off; that witness did not get on the train.

On cross-examination witness testified, that the brakeman was on top the car about the middle and kneeling down; that when the brakeman hollered, witness saw him raise a club; that he heard the brakeman tell plaintiff to get down off the car or he would hit him with the club. Witness further testified: “And with that freight train running fifteen or twenty miles an hour I was keeping-up with that car, and above all' the noise that train was making I could hear what the brakeman said to William Jones.”

This witness further testified:

“Q. You say this brakeman had a club in his hand? A. Yes, sir.
' “Q. lie didn’t hit William Jones, did he? A. Yes, sir — he made a break to.
“Q. What did he do? A. He held the club up and started to strike him.
“Q. Well, did he strike him? A. Yes, sir.
“Q. How long was that club? A. Two foot.
“Q. About two feet? A. Yes, sir.
“Q. How far was the brakeman from William Jones? A. You mean by feet?
“Q. Yes. A. About thirteen foot.
“Q. About thirteen feet from him. The brakeman was up on top of the box car? A. Yes, sir.
“Q. And William Jones was down on the side of the coal car? A. Yes, sir.
“Q. Bid you see William Jones get off? A. He didn’t get off; he fell off.
“Q. He fell off? A. Yes, sir.
“Q. Did you see him fall? A. Yes, sir.
“Q. Where were you when he fell? A. Down by the side of the box car.
“Q. ' By the side of the same box car you had been running along by? A. Yes, sir.
“Q. How fast was that train going when he fell off ? A. Kept the same rate of speed.”

John Warmack, a witness for plaintiff, testified that he worked about nine years for defendant on the line of road running from Starland to St. Louis; that he started as a brakeman, and got to be a conductor; that on through freights, defendant had two brakemen, and three brakemen on local freight trains; that he knew what the duties of a brakeman were during the above period, on freight trains running over said road. The following questions were then propounded to said witness:

“Q. What were the duties, during those times, in regard to persons; take first the case of persons, including trespassers,- who are not members of the train crew and who are not passengers, and who get on the freight cars — what were the duties of a brakeman in that event?
“Mr. Stewart: I desire to object to that, because it is incompetent, irrelevant and immaterial and calls for the conclusion of the witness.”

This objection was overruled and an exception saved. Witness then answered, that the duties of the brakemen were to keep trespassers off the train, and to put them off if they got on.

On cross-examination this witness testified that he had been discharged from service, on account of a rear-end collision; that he sought re-employment and defendant refused to re-instate him; that the conductor is in charge of the train.

E. D. Cooper was sworn as a witness for plaintiff, and testified, in substance, that he was a brakeman on defendant’s road in Oklahoma, and had passed over the line from St. Louis to Starland on passenger trains a few times. Witness was then asked to state what the duties of a brakeman were, in respect to ejecting persons from the trains who had no right to ride thereon. This was objected to for the same reason heretofore assigned as to the testimony of Warmack on the same subject. The objection was overruled and an exception duly saved. He also testified that he had put persons off the train while he was brakeman.

Dr. Guy Simpson and plaintiff testified in respect to the latter’s injuries.

The foregoing covered substantially all of plaintiff’s evidence in chief. At the conclusion of same, defendant interposed a demurrer to plaintiff’s evidence, which was overruled and an exception saved.

Defendant’s evidence tends to show that plaintiff was taken to Crystal City to the office of Dr. James Commerford for emergency treatment. Dr. Oommerford was surgeon for the Pittsburg Plate Glass Company at the above point. The above doctor testified that he dressed plaintiff’s injuries on the afternoon he was hurt; that the plaintiff was conscious and talked to him about the manner in which he received said injuries. Dr. Oommerford testified, in respect to this subject, as follows:

“Q. What did he tell you about the manner in which he sustained his injuries? A. Told me that he and the other boys boarded a freight train to ride to St. Louis; that he had gotten on about two cars ahead of the other boys and, wanting to get back to them, he hopped off and fell under the car.
“Q. Did he tell you that in response to your question as to the manner in which he sustained his injuries? A. Yes, sir.
“Q. Did he say anything in that conversation about the brakeman hitting him with a club and knocking him from the train? A. No, sir.”

Witness said he heard plaintiff tell Mr. Hughes, the station agent of defendant, the same afternoon, just what plaintiff had told witness as to how he was injured. He testified that he was present when defendant’s exhibit 1 was written by Mr. Hughes; that the latter wrote it as plaintiff dictated it; that at the time it was written, plaintiff was conscious and his mental condition perfectly clear.

On cross-examination, witness testified that plaintiff complained very little of his injury, hut was worried as to what his father was going to do to him when he got him home. Witness said he did not allow the plaintiff’s companions to come ino the room while he was dressing plaintiff’s foot.

Geo. O. Taylor, superintendent of the Pittsburg Plate Glass Company, at Crystal City, saw plaintiff while he was being carried to Dr. Commerford’s for emergency treatment. He testified, in substance, that plaintiff was conscious and told him how he received his injuries; that plaintiff told him “he got on a car ahead of the other boys and he jumped off, to get on the same car they were on, and struck a pile of sand and went under the car and got hurt. The plaintiff did not say anything in that conversation about a brakeman being on that train.” Witness was shown, and identified, defendant’s exhibit 1, which he signed as a witness. He said, when Hughes wrote exhibit 1, he read it over to plaintiff, and the latter signed it.

A. Ií. Hughes, station agent of defendant at Crystal City, testified that he talked with plaintiff the same day of accident while he was at Dr. Commerford’s office. He told Hughes that he was trying to board a north-bound freight train with his two companions; that he had gotten on a coal car, two car-lengths ahead of where one of his companions got on, and that he wanted to get off and get back where the other boy was and, in doing so, he fell off the car and got his foot cut off; that he wrote exhibit 1, as plaintiff gave him the facts; that he read it over to plaintiff and the latter signed it.

T. M. Boseman, foreman of defendant’s bridge crew, who were constructing the bridge mentioned by plaintiff, testified, that he saw the freight train pass the bridge, but did not see any of the train men on the freight train as it passed over the bridge; that he was present when Mr. Hughes wrote defendant’s exhibit ■ 1; that plaintiff told Hughes that he and the two Hawver boys were trying to beat their way to St. Louis, and the other two boys had gotten on a car two or three cars hack of the car he was on, and he jumped off to get on the same car, and when lie did that, his foot went under the wheel.

T. P. Williams, witness for defendant, and who was working with Forman Roseman, testified that he saw plaintiff after he was hurt, near the bridge; that plaintiff then said to him: “ ‘I fell down and the train ran over me. I Avas Avalking along the side of the train and I fell down and it ran over me.’ He told me he Avas walking along the side of the train and it knocked him down and got his foot under the train.”

Defendant’s exhibit 1, reads as follows:

“Crystal City, Mo., 7/17, 1917.
“My name is William Jones and my home is at 4561 Moffitt Ave., St. Louis, Mo. I am 13 years old and was in Crystal City, Mo., on July 17th. I with some friends wanted to go 'back to St. Louis and waited until some freight train Avas going to St. Louis. I jumped on side of car of Ex 1233 and after getting on car I decided to get off this car and get on another one. On jumping off the car I Avas on I jumped in sand pile and slid down under the train getting my foot injured. I knew that it was a violation of the Railway Co. rules to jump on freight trains and took all responsibility on myself when doing it.
“Wm. Jones.
“Witness G. O. Taylor.”

The conductor of said train, J. R. Johnson, testified that his train crew on the day of accident consisted of brakemen O. C. Holt and C. O. Roach, the engineer, fireman, and himself as conductor; that both of the above brakemen, were in the caboose Avith him when the train passed said bridge; that none of his crew were on top of the train as it passed the above bridge; that the conductor of a freight train is in charge of same and the brakemen work under his orders.

C. C. Holt, one of the brakemen on the freight train which injured plaintiff, testified, that he and the other brakeman, Roach, were in the caboose Avith the conductor and that none of the crew were on top of said train as it passed the bridge; that he did not order plaintiff to get off the train and did no see any one get hurt; that the conductor is in charge of the train; that he never saw a brakeman put a man off the train.

Clare Roach, the other brakeman on the train which injured plaintiff, was absent from the jurisdiction of the court. Defendant applied for a continuance, and set out what is expected to prove by Clare Roach. To obviate a continuance, plaintiff’s counsel admitted that said witness, if present, would testify to the facts stated in said application for continuance. His evidence was accordingly read to the jury from said application for a continuance, as the testimony of said witness. The testimony of Roach corroborates that of the conductor and brakeman Holt; and shows that he was not on the top of the train; nor were any others of the train crew on top of the train, when it passed the bridge; that he did not see plaintiff on the train; that he did not' strike plaintiff or order him to leave the train, nor did he threaten to strike plaintiff, etc.

Plaintiff testified in rebuttal that he did not tell T. P. Williams, or any one else, that he walked along the side of train, or that it struck him or knocked him down and he fell under the wheels; that he did not tell Dr. Commerford or Mr.. Taylor, or any one else, that he got on the train ahead of the other boys; that he did not tell them or any one else that he jumped off the train in order to get back where his companions were; that he did not tell them he lit on a sand pile and got under the train and sustained his injuries in that way; that- he just guessed the train was running fifteen or twenty miles per hour. He further tes tilled that, at the time the doctor dressed his wounds, his foot was paining him so badly that they could hardly keep him there; that he was screaming all the time, “until this hypodermic was injected.” He further said that Hughes did not explain anything when the statement was taken and that he was forced to sign it.

Such other facts as may be deemed important, as well as the instructions and rulings of the court, will be considered later.

The jury returned a verdict for plaintiff, as follows:

“We, the jury in the above cause, find in favor of the plaintiff, on the issues herein joined, and assess plaintiff’s damages at the sum of fifteen thousand dollars.”

On April 10,1919, the trial court entered judgment on the verdict aforesaid for the full amount. Defendant, in due time, filed its motion for a new trial.

On July 14,1919, the court required plaintiff to remit, on or before July 28, 1919, $2,500 of said judgment; otherwise, a new trial would be granted. On said July 14th, counsel for plaintiff remitted $2,500 from the verdict and judgment aforesaid. Thereupon a new judgment for $12,-500 was entered and defendant’s motion for a new trial overruled.

The case was duly appealed by defendant to this court.

I. It is insisted-by appellant, under its “Points and Authorities,” that a demurrer to the evidence at the conclusion of the whole case should have been sustained. In order to pass upon this question intelligently, the evidence has heretofore been set out very fully. Without entering into an extended discussion of this subject, we do not feel justified in holding, as a matter of law, that plaintiff is not entitled to recover.

II. Defendant assigns as error, the action of the trial court in refusing its Instruction B, which reads as follows:

‘ ‘ The jury are instructed that if you believe and find from the evidence, that the plaintiff has made statements out of court respecting the manner in which his alleged ^juries were caused, contrary to, and at variance with, his testimony as given on the witnegg y0U may take this fact into consideration in determining what weight and credibility you will give to the testimony of the plaintiff.”

This class of instructions was approved in some of of the earlier cases in this court, like that of Feary v. Ry. Co., 162 Mo. 78, but we subsequently overruled the Feary case, and others of a like import, upon the theory that instructions like the one in controversy are, in legal effect, a comment upon the plaintiff’s evidence and should not be given. The general instruction given by the court, in respect to the credibility of witnesses, was sufficient to cover this question. [Montgomery v. Railroad, 181 Mo. 477; Conner v. Railroad, 181 Mo. 398; Zander v. Transit Co., 206 Mo. 445, 103 S. W. 1006; Stetzler v. Met. Street Ry. Co., 210 Mo. l. c. 713; Huff v. Ry. Co. & St. Joseph, 213 Mo. 495; Quinn v. Met. Street Ry. Co., 218 Mo. l. c. 556; Norris v. Railroad, 239 Mo. l. c. 719; Steele v. Railroad, 265 Mo. 97; State v. Finkelstein, 269 Mo. 612; State v. Goode, 271 Mo. l. c. 49; State v. Gulley, 272 Mo. 484; State v. Woods, 274 Mo. l. c. 617-8; State v. Kocian, 208 S. W. l. c. 46.]

The foregoing authorities, as well as many others which might be cited, settle the law in this State, in respect'to above matter, adversely to appellant’s contention.

III. It is insisted by appellant that the verdict of the jury in this case for $15,000 was not only grossly excessive, but was the result of passion and prejudice against defendant, or sympathy for plaintiff. It may be conceded, as a general proposition, that where plaintiff produces substantial evidence before jm,y ag the merits of his controversy, and no error has been committed during the progress of the trial against appellant, the verdict returned under such circumstances for a reasonable amount will be upheld by this court. If, on the other hand, the verdict returned, in the light of all the facts before us, appears to have resulted from either partiality or prejudice upon the part of the jury, this court, in the exercise of its inherent jurisdiction, will not hesitate to reverse and remand the cause for a new trial.

On turning to the record, we find that plaintiff was a lawbreaker and trespasser upon defendant’s train at the time and place of accident. He was not there by either the express or implied invitation of defendant.

Doctor James Commerford, George C. Taylor, A. H. Hughes, T. M. Roseman and T. P. Williams, whose testimony is heretofore .set out, were guilty of deliberate, willful perjury, in testifying that plaintiff told them on the day of the accident he got on the train ahead of his companions, dropped off to get back with them, and was injured by the train in passing along same, or the plaintiff was guilty of willful, audacious perjury, in denying that he made any such statements to either, of said parties. There can be no middle ground in respect' to this matter. Again, J. R. Johnson, the conductor of said train, and C. C. Holt, a brakeman thereon, were guilty of perjury in testifying that the conductor and both brakemen were in the caboose and that neither of them was on top of the train when it passed the bridge and injured plaintiff, or respondent was guilty of perjury, when he testified that defendant’s brakeman was on top of one of the cars in said train, and struck him with a club, while the train was going fifteen to twenty miles per hour, and knocked him off.

In our opinion, the evidence was overwhelmingly against plaintiff as to the manner in which he claims to have been injured, yet, the jury seem to have ignored the clear and positive testimony of defendant as to the merits of the controversy, and returned a verdict in favor of plaintiff for $2,500 more than the trial court declared was reasonable compensation, and which we consider, would have been excessive, to the extent of at least $5,000, if no errors were committed during the progress of the trial. In view of all the facts.and circumstances in this case, we are of the opinion that the ends of justice require that the cause should be reversed and remanded for a new trial. [Goetz v. Ambs, 22 Mo. 172-3; Price v. Evans, 49 Mo. 396-7; Whitsett v. Ransom, 79 Mo. 258; Spohn v. Ry. Co., 87 Mo. l. c. 84-5; Garrett v. Greenwell, 92 Mo. l. c. 125; State v. Primm, 98 Mo. l. c. 372-3; Adams v. Ry. Co., 100 Mo. l. c. 569-70; State v. Prendible, 165 Mo. l. c. 353; Weltmer v. Bishop, 171 Mo. l. c. 116-7; Gibney v. Transit Co., 204 Mo. l. c. 723; Partello v. Railroad, 217 Mo. l c. 661; Harper v. Railroad, 186 Mo. App. 296, 172 S. W. 55; Spiro v. Transit Co., 102 Mo. App. l. c. 263-4-5.]

We deem it unnecessary .to quote from the foregoing-authorities, but it may be said in passing- that they fully sustain the conclusions heretofore announced.

IV. Appellant assigns as error the action of the trial court in refusing to give, to the jury its instruction marked “C,” which reads as follows:

“The court instructs the jury that the evidence of the absent witness, Clare Roach, as contained in and read to you from the affidavit in support of defendant’s application for a continuance, is entitled to and should be given the same weight and credit that you would give it if said witness were personally present and testified to the same facts before you.” [Sec. 1960, R. S. 1909; Eisner v. Sup. L. K. So L. of Honor, 98 Mo. 640.]

Section 1960 supra, in referring to applications for a continuance, among other things, provides, that if “the court shall find the affidavit sufficient, the cause shall be continued, unless the opposite party will admit that the witness, if present, would swear to the facts set out in said affidavit, in which event the cause shall not he continued, hut the party moving therefor shall read as the evidence of such ivitness the facts so stated in such affidavit, and the opposite party may disprove the facts disclosed, or prove any contradictory statements made by such absent witness in relation to the matter in issue and on trial.” .

We confess our inability to understand upon what theory of law the trial court refused to give 'said instruction “ C. ” It is clearly within the purview of the above section of the statute, and in Eisner v. Sup. L. K. So L. of Honor, 98 Mo. 640, was held to properly state the law.

This was an important matter from defendant’s viewpoint, as the conductor, Johnson, and Holt, the brakeman were present at the trial, and testified in person. Roach was not present, nor was his deposition taken in the case. The defendant was entitled to have the jury informed, under Section 1960 supra, that the testimony of Roach, as read, was to be considered as though he were present and testified to the facts stated in the affidavit. The refusal of said instruction cut off the legal right of defendant’s counsel to argue before the jury the view they should take of Roach’s testimony. Instruction “C” properly declared the law, and should have been given. The refusal of the court to give same,' constituted reversible error.

V. There was sufficient evidence before the jury to enable the latter to determine whether or not the brakemen on defendant’s train at the time and place of accident weré authorized, while acting in the line 0f their duty, to eject trespassers from appellant’s freight trains. [Farver v. Ry. Co., 139 Mo. l. c. 281, 286; Whiteaker v. Railroad, 252 Mo. l. c. 458-9; Gordner v. St. Louis Screw Co., 201 Mo. App. 349; Marcum v. Railroad, 139 Mo. App. 217; Curtis v. Ry. Co., 99 Mo. App. 502.]

VI. It is insisted by appellant, that plaintiff’s instruction numbered one is erroneous. It is not inconsistent with instruction five given at the instance of defe^dant. The two instructions taken together fairly presented the law to the jury, in respect j-0 duties of brakeman on defendant’s train under such circumstances as were detailed in evidence.

VII. Respondent’s instruction numbered 7, on the measure of damages, is assailed by appellant as not properly declaring the law. Upon a careful consideration of same, we are of the opinion that said instruction is not obnoxious to the criticism leveled against it by counsel for defendant. If counsel were fearful that the jury might in some way be misled by said instruction as given, they should have sub mitted to the court an instruction of their own declaratory of the law from their own viewpoint. Having failed to do so, they are in no position to complain of the one given. [Morton v. S. T. & T. Co., 217 S. W. l. c. 836; Powell v. Railroad, 255 Mo. l. c. 456; Minter v. Bradstreet Co., 174 Mo. l. c. 491; Browning v. Ry Co. 124 Mo. l. c. 71-2.]

VIII. Some other questions have been argued in the respective briefs of counsel, but as they may not appear upon a retrial of the cause, we have not deemed it necessary to consider same.

On account of the errors heretofore pointed out, the cause is reversed and remanded for a new trial.

Mosley and White, GG., concur.

PER CURIAM:

The foregoing opinion of Rmlevt, C., is hereby adopted as the opinion of the court.

All of the judges concur.


author: WALKER, J.-

text:
    THE STATE v. JOHN I. DOUGHERTY, Appellant.
    Division Two,
    March 19, 1921.
    1. EVIDENCE: Dying Declaration: Antecedent Statement: Brought Out hy Defendant. A defendant cannot complain of a statement made hy deceased just prior to his dying declaration, if it was brought out by the suggestion of his counsel.
    2. -: -■: -: Competency: Bes Gestae. A statement made by deceased immediately preceding his dying declaration, that “it was a shame to shoot a man this way,” made at the time of the shooting and necessarily forming a part of the facts and circumstances attending the crime, and so indissolubly connected with the act itself as to form a part of the res gestae, is properly admitted in evidence.
    3. INSTBUCTIONS: General Objection. A general objection to instructions in a criminal case will not save them for review on appeal. The instructions complained of should be so designated, either literally, numerically or by reference to their subject-matter, as to enable the trial and appellate courts to determine what instructions are referred to.
    4. -: Converse of Those Given. If the instruction given states the facts necessary to be found to establish the crime, and cannot reasonably be construed otherwise than as telling the jury that if they find the facts stated they may convict, but unless they so find they will acquit, it is not error to fail to give a converse instruction based on defendant’s testimony. The words at the end of the instruction given for the State “unless the jury find the facts to be as stated they will acquit defendant” of themselves constitute a converse instruction, and it is only when such words are omitted from the one given that it is necessary to supplement it by a converse one.
    Appeal from St. Louis City Circuit Court. — TLon. Benjamin J. Klene, Judge.
    Aeeibmed.

      Thomas B. Harvey for appellant.
    (1) The court erred in admitting as a part of the dying declaration the statements by the deceased denunciatory of the shooting of him, to the effect that “it was a shame to shoot a man that way, ’ ’ etc. Only statements of what occurred were competent. State v. Brown, 188 Mo. 451; State v. Kelleher, 201 Mo. 614; 16 C. J. p. 843, sec. 2314 (3). (2) The instruction given upon the theory of the killing being done in the execution of a conspiracy was faulty in not putting to the jury the converse, based upon the defendant’s testimony that he never joined any conspiracy. State v. Fredericks, 136 Mo. 58; State v. Jackson, 126 Mo. 521; State v. Rutherford, 152 Mo. 125; State v. Levitt, ,213 S. W. (Mo.) 108. (3) The court erred in its instruction on conspiracy in declaring that the defendant’s repentance and withdrawal from the contemplated crime must have been with the knowledge of his confederates to avail him anything. Wharton on Homicide, 665; Richard v. State, 30 Ga. 757; State v. Allen, 47 Conn. 139. (4) Instruction 5,- discrediting things favorable to himself, and lending legal approval to things against himself, in a statement introduced in evidence by the State, is erroneous as a comment on the evidence and pointing solely to the defendant as a witness. State v. Barring-ton, 198 Mo. 125; Stetzler v. Street Ry. Co., 210 Mo. 704; Lander v. Transit Co., 206 Mo. 461; Clay v. State, 15 Wyo. 64; Welsh v. State, 164 S. W. 119. (5) The instruction 4a, given by the court, was palpably erroneous and prejudicial in pointing out certain facts and commenting on the same. State v. Raferty, 252 Mo. 72; State v. Wertz, 191 Mo. 569; State v. Pate, 188 S. W. 139; State v. Rutherford, 152 Mo. 130; State v. Sinclair, 250 Mo. 278; State v. Malloch, 269 Mo. 235; State v. Rogers, 253 Mo. 399; State v. Sivils, 105 Mo. 533.

      Frank W. McAllister, Attorney-General, and H. P. Ragland, Assistant Attorney-General, for respondent.
    (1) The statements made by deceased to Dr. Schlostein, were admissible, (a) They were admissible as dying declarations. State v. Brown, 188 Mo, 460; State v. Elkins, 101 Mo. 344; State v. Kelleher, 201 Mo. 637; State v. Evans, 124 Mo. 397; State v. Dipley, 242 Mo. 477; State v. Colvin, 226 Mo. 481; State v. Vest, 254 Mo. 458. (b) Evidence which is admissible for any purpose cannot be excluded by the court on the ground that it is inadmissible for other purposes. State v. Bersch, 276 Mo. 416; State v. Finley, 193 Mo. 211; Sotebier v. Transit Co., 203 Mo. 721. (c) The statements were admissible as part of the res gestas. State v. Martin, 124 Mo. 524, 529; State v. Lockett, 168 Mo. 480; State v. Sexton, 147 Mo. 89; State v. Sloan, 47 Mo. 604; Greenlee v. K. C. Casualty Co., 192 Mo. App. 308. (d) If error, it was invited and defendant cannot complain. Section 5115, R. S. 1909; State v. Harney, 168 Mo. 197. (2) Appellant’s instruction in the nature of a demurrer was properly overruled. There was sufficient evidence to sustain the verdict. State v. Oertel, 217 S. W. 64; State v. Selleck, 199 S. W. 180; State v. Conley, 217 S. W. 29; State v. Mann, 217 S. W. 67. (3) Appellant’s fifth and sixth assignments that the court erred in giving and refusing instructions to the jury are too general and indefinite for review by this court. State v. Lewis, 273 Mo. 532; State v. Selleck, 199 S. W. 129. (4) Appellant’s seventh assignment that the court erred in instructing on conspiracy for the reason that there is no legal and competent evidence on which to base the instruction on conspiracy should be overruled. 12 C. J., sec. 227, p. 634; State v. Hill, 273 Mo. 341; State v. Fields, 234 Mo. 623; State v. Sykes, 191 Mo. 78; State v. Murray, 193 S. W. 832; State v. Bobbitt, 215 Mo. 39; State v. Roberts, 201 Mo. 728; State v. Forsha, 190 Mo. 296; 13 R. C. L. sec. 33, p. 723. (5) Alleged error must be properly referred to in the motion for new trial if it is to be saved for review by this court. Russo v. Brooks, 214 S. W. 431; State v. Brashear, 186 S. W. 1060; Lust v. Pub. Service Com., 210 S. W. 72; St. Louis v. Railroad, 248 Mo. 11.
   WALKER, J.-

Defendant was indicted by the grand jury of the City of St. Louis, together with three others, for murder in the first degree in having shot and killed Henry Becker. A severance was granted and defendant was tried, convicted and sentenced to life imprisonment in the penitentiary. From this judgment he appeals.

Henry Becker was returning to his home on the corner of Compton and Russell avenues in the City of St. Louis at a little before nine o’clock on the night of April 14, 1919. He had alighted from his automobile opposite his residence, the chauffeur had left, and Becker was about to step upon the walk leading from the street to the house when he was shot and robbed of about $1300 he had on his person. His wife, who was ill and confined to her bed, heard a shuffling, as of feet, on the walk, the report of a gun and an exclamation, “They have shot me.” She recognized her husband’s voice and asked her mother to go out and bring him in. The mother and the immediate neighbors, who • had also heard the shot, found Becker with his feet lying in the gutter and his head in the street in front of his home. Upon their approach he exclaimed, “I’m shot; I’m shot.”' He was carried into his home and a doctor near at hand was summoned. He found Becker in a precarious condition. He was panting for breath, his pulse was weak, irregular and rapid, indicative of an internal hemorrhage. An examination disclosed a gunshot wound in his abdomen. To those present he said, “This is ¿ shame, to shoot a man like this. I asked them not to shoot me and g’ave them everything I had and still they shot me.” To his mother-in-law, who was standing near, he said, “Grandma, it’s all over with me; I’m a goner.” This he repeated several times, adding, “It’s a shame to shoot a man like this.” Soon after he made these statements he was taken to a hospital, operated on, and died six hours after being shot.

The defendant made a statement to the police after his arrest. The voluntary making of this statement and the correctness of its subject-matter as made by the defendant are attested by several persons. The defendant on the witness stand denied much of it. The material portions of same are that he and the other defendants agreed on the day of the commission of the crime to “hold up” Becker-; and that they went to the neighborhood of his residence to await his return to accomplish their purpose; that he and the others were standing on the opposite side of the street from Becker’s residence when they saw his automobile approach; that two of the party crossed over the street to a point where the automobile would stop to enable Becker to alight, while he and one of the others remained on the opposite side of the street; that when two of his companions crossed the street defendant ran and when about a block distant he heard a shot fired; that he mounted a street car going east at Compton and Park avenues and got off at Eighteenth and Compton, where he found two of the other defendants; that upon his arrival they “split up” the money and he got $240 for his share; that Kahmann, one of the defendants, said, “they got $1300 from Becker and that he [Kahmann] shot him because he hollered;” that they then went to a saloon in the neighborhood and had several drinks, bummed around a while and then went to defendant’s mother’s home, where they had a drinking and dancing party which continued until six o’clock the next morning; that as defendant ran away from the scene of the crime he threw his gun on a lawn about a block west of Becker’s house; that he left some of the money he had gotten with his mother and $150 of it at Stevens’s saloon; that he and the other defendants talked about holding up Becker about a week before the occurrence, but that he had said he did not want anything to do with it. The jury believed this statement and not defendant’s subsequent denial of same. The truth of his statements in regard to the money left with his mother and the saloon-keeper was attested by them and the money was turned over to the police. The pistol was found where he said he had thrown it. The record discloses other incriminatory facts and circumstances which need not be repeated, enough having been shown to demonstrate defendant’s presence and participation in the crime. No question is raised as to the quantum or probative force of the testimony. The defense is purely technical.

I. Error is assigned in the admission in evidence of a statement of the deceased immediately preceding his dying declaration that he had said to his assailants “it was a shame to shoot a man in that way-” In determining whether an objection to a statement of this character is tenable and hence worthy of consideration, the circumstances under which it was offered in evidence and the manner in which it was made are to be taken into consideration. As to the former, we find, without encumbering this opinion with a rescript of the testimony, that the statement was brought out at the suggestion of counsel for the defendant. The error, therefore, if any, was committed at the instance of defendant and he should not be heard to complain. [Sec. 5115, R. S. 1909, now Sec. 3908, R. S. 1919; State v. Palmer, 161 Mo. l. c. 174; State v. Hamey, 168 Mo. l. c. 169; State v. Grubb, 201 Mo. l. c. 609; State v. Colvin, 226 Mo. 446; State v. Hutchison, 186 S. W. 1000.]

However, the circumstances under which the statement was originally made furnish a more substantial reason for the overruling of defendant’s contention in that it was shown to have been made at the time- of the killing and necessarily formed a part of the facts and circumstances attending the crime; in other words, it was so indissolubly connected with the act' itself as to form a part of the res gestae. The general rule in regard to a declaration of the character here in question is that if it is shown that it was made under such circumstances as to raise a reasonable presumption that the utterance was spontaneous and was created by or sprang out of the transaction itself and was made contemporaneously with the act or so soon thereafter as to exclude the presumption that it was the result of premeditation, then it should not be classified as a mere narrative of a past occurrence, but as a part of the res gestae, whether for or against the declarant, and hence not subject to the general rule excluding hearsay testimony. [State v. Lockett, 168 Mo. 480; State v. Brown, 188 Mo. l. c. 451; State v. Kelleher, 201 Mo. 614; State v. Reeves, 195 S. W. (Mo.) l. c. 1030 and cases.]

Finally, the remark is not of such a nature when admitted in evidence as to prejudice the defendant. It did not designate him as' one of the assailants and its only probative effect was to show that the wound inflicted was in the commission of an assault; the trial court, therefore, did not err in the admission of testimony in regard thereto.

II. The instructions to which the defendant objects, other than that in regard to a conspiracy, h-ave a°l been so preserved as' to entitle them to a review. We have frequently ruled upon the manner of objections herein made and have held that something more specific than a general reference to the errors assigned is necessary. It may be conceded that the rule of law invoked by counsel for defendant is applicable to the review of instructions in civil cases, but it does not follow, in the face of an express statute to the contrary, that it is applicable to criminal eases. Section 5285, Revised Statutes 1909 (now Sec. 4079, R. S. 1919) provides that “the motion for a new trial must set -forth the grounds and causes therefor.” In construing this section we have uniformly held that the instructions complained of should be so designated, either literally, numerically or by reference to their subject-matter, as to enable the trial and appellate courts to determine what instructions are referred to. [State v. Rowe, 271 Mo. l. c. 94 and cases; State v. Chissell, 245 Mo. l. c. 555; State v. Wilson, 225 Mo. 518; State v. Gilbert, 186 S. W. 1003; State v. Gifford, 186 S. W. l. c. 1060 and cases; State v. Miller, 188 S. W. 87; State v. Fleetwood, 190 S. W. l; State v. Selleck, 199 S. W. 130; State v. Stevens, 220 S. W. 844; State v. Gallagher, 222 S. W. 467.]

Every possible phase of this question, as applied to objections to instructions in motions for new trials in criminal proceedings, has been definitely determined in the cases above cited without a dissenting voice, and there remains no reason for a further discussion of this matter. The reqirirements of the statute (Sec. 4079, R. S. 1919) are reasonable; its purpose is wholesome; it denies no right of defense to the accused to which he is entitled under the law, and simply requires him to apprise the trial court of the grounds of his objections to the instructions, and not to obscure them and thus mislead the court by what cannot be otherwise properly designated than a dragnet.

III. It is contended that the instruction given at the instance of the State based on the evidence of a conspiracy should have been supplemented by a converse instruction based on defendant’s denial of his connection with such conspiracy. The instruction complained of fully, clearly and fairly defines murder in the first degree and states the facts necessary to be found to establish a conspiracy or a concert of action between the defendant and his co-indictees in the commission of the crime; and it closes with the statement that “unless the jury find the facts to be as stated they will acquit the defendant.” This, to the average mind, cannot be construed as otherwise than telling the jury if they find the facts as stated they may convict, but unless they so find them they will acquit. There is, therefore, no opportunity for the jury to have' misinterpreted their province and more could not have been accomplished if the court had made a converse statement in detail of the facts which, if found, would have authorized an acquittal. The instructions given, which we have examined for the purpose of enabling us to properly dispose of defendant’s contention, fairly presented the law for the jury’s guidance under the evidence, and if more Avas desired a request should have been made therefor. If the instruction complained of had simply told the jury, as in the Rutherford case, 152 Mo. 124, that if they found certain facts to be true they should convict and nothing more, the duty of the trial court to give an instruction telling them that unless they found these facts they should acquit, becomes apparent; likewise in the Jackson case, 126 Mo. l. c. 525, where the court, after stating what facts must be found to authorize a conviction, refused an instruction which stated that unless they so found such facts they would acquit; so, in the Fredericks case, 136 Mo. l. c. 58, where, as at bar, there was evidence of a conspiracy and the jury were told that if they found it to exist they might find the defendant guilty, but did not state that if they found to the contrary they would acquit. These cases, therefore, and they are all that are cited by defendant, base the necessity of a converse instruction upon the absence of the very requirement found in the instruction complained of, which is nothing more than a converse statement of the jury’s duty under the evidence. The writer concurred in the conclusion reached by the Commissioner in State v. Levitt, 278 Mo. l. c. 378, as to the duty of the court to give a converse instruction to that given at the request of the State in regard to the defendant’s explanation of his possession of certain stolen property, but this conclusion was not concurred in by the court, and hence is not an authority. It will suffice to say that if concurred in it would have been under a state of facts and in view of other instructions given which lacked the essential requisites found in that at bar.

There was no infraction in the instant case of the well-established rule that it is duty of the trial court to clearly, in a hypothetical manner,, present the facts upon which the State relies for a conviction which, if found by the jury to be true, will authorize a verdict of guilty, and in like manner to present the facts upon which the defendant relies for his defense, which if found to be true will authorize an acquittal. This has been the course pursued from the establishment of our code of criminal procedure, and it was not departed from in the instant case. There is, therefore, no merit in the defendant’s contention that a converse instruction should have been given.

Human depravity reached its lowest level in the commission of this crime. It was a ruthless, cold-blooded murder. Its cruel and sordid details are relieved by none of the palliating circumstances sometimes present and often interposed as defenses in cases of homicide. Despite these facts, the statement of which cannot but appall the normal mind, the defendant was accorded a fair and impartial trial and has no just ground of complaint. The judgment of the trial court is therefore affirmed.

All concur.