author: ROY, C. PER CURIAM

text:
    JACOB LAMPERT v. JUDGE & DOLPH DRUG COMPANY et al., Appellants.
    Division Two,
    December 19, 1911.
    X. DAMAGES: Nominal. For every infraction of his legal right the party injured is entitled to nominal damages.
    2. -: -: Punitive. A verdict for nominal actual damages will support a verdict for punitive damages.
    3. -: Punitive: Legal Malice. Punitive damages are recoverable where legal malice is shown. Legal malice, as distinguished from actual malice, is the willful or intentional doing of a wrongful act without legal justification or excuse.
    4. -: -: Wrongful Act a Crime. The right to exemplary damages is not removed by the fact that the wrongful act is also a crime.
    5. -: -: Infringing Trade-mark. A seller of cigars placed cigars of an inferior quality in a box marked with the registered trade-mark of a cigar maker and sold them as that maker’s cigars. Held, that such maker is entitled to punitivo damages for the infringement of his trade-mark.
    Appeal from St. Louis City Circuit Court. — Hon. Warwick Hough, Judge.
    Affirmed.

      Frcmk K. Ryan for appellants.
    (1) Tlxe appellants are entitled to have the judgment herein set aside, because the respondent did not prove any actual compensatory damages, and, therefore, the court below erred in allowing the jury to find exemplary damages; for nominal damages will not support exemplary damages. Hoagland v. Forest Park Am. Co., 170 Mo. 335; Sutherland on Damages, sec. 406; Kuhn v. Railroad, 74 Iowa, 137; Schwartz v. Davis, 90 Iowa, 324; Frees v. Triple, 70 111. 496; Meider v. Authis, 71 111. 241; Gaunsly v. Perkins, 30 Mich. 492; Maxwell v. Kennedy, 50 Wis. 654. (2) Adding-ton v. Cullinane, 28 Mo. App. 238, still remains the controlling authority in this State on the question of damages in a case at law for the infringement of a trade mark. There can be no doubt but what it prohibits exemplary damages where there are no actual damages sustained by the plaintiff. (3) There was no ground for the jury to consider exemplary damages, because there was no evidence that the acts complained of were accompanied by circumstances of malice or oppression. Beck v. Dowell, 111 Mo. 509; Firearms Co. v. Shields, 171 N. T. 384; Dooling v. Pub. Co., 144 Mass. 258. (4) According to the. law of this State, and the weight of authority in other jurisdictions, exemplary damages are prohibited, and only compensatory damages allowed in cases for the infringement of trade-marks. Such is the rule also in analogous actions for the infringement of patents. Adding-ton v. Cullinane, 28 Mo. App. .238; Ransom v. Mayor, 1 Fish. Pat. Cas. 252; Parker v. Hulme, Id. 44; Taylor v. Carpenter, 2 Wood & M. 1; Hennessy v. Wilderming-Loewe Co., 103 Fed. Rep. 901; Wilbur v. Beecher, 2 Blatch. 200 ; Ball v. Wise, 2 Blatch. 200; Iiasselden v. Ogden, 3 Fish. Pat. Cas. 378; Russell v. Place, 5 Fish. Pat. Cas. 134; Seymour v. McCormick, 16 How. 489.

      Jamison & Thomas for respondent.
    (1) For the violation of every legal right, nominal damages, at least, will be allowed. Fulkerson v. Eads, 19 Mo. App. 620; 2 Sutherland on Damages, 13. (2) The law is now well settled that where a legal right has been invaded the plaintiff may recover nominal damages, although there may be no evidence of actual damages sustained. 13' Cyc. of Law and Proc., p. 14, and cases cited note 11; McCutchin v. Ballerton, 1 Mo. 342; Brown v. Emerson, 18 Mo. 103; Sheedy v. Press Brick Works, 25' Mo. App. 527; Cravens V. Hunter, 87 Mo. App. 456; Conrad v. Brewing Co., 8 Mo. App. 277; Weber v. Squier, 51 Mo. App. 601; Barrie v. Seidel, 30 Mo. App. 559'. (3) Nominal actual damages will sustain exemplary or punitive damages. Mills v. Taylor, 85 Mo. App. Ill; Ferguson v. Pub. Co., 72 Mo. App. 462; Favorite v. Cottrill, 62 Mo. App. 119; 12 Ency. Law (2 Ed.), 30; Wilson v. Vaughn, 23 Fed. Rep. 229; Pnb. Co. v. Monroe, 73 Fed. Rep. 196; Ala. etc. Co. v. Sellers, 93 Ala. 9; Atlanta, etc. Co. v. Condor, 75 Ga. 51; Helfley v. Baker, 19 Kan. 9; Prince v. Brooklyn Eagle, 19 Misc. Rep. (N. T. Sup.) 186; Champion v. Vincent, 20 Tex. 811; Flannagan v. Wormack, 54 Tex. 45; Robinson v. Goings, 63 Miss. 500. (4) In all cases of torts where a defendant acts maliciously, willfully, or with gross negligence, so as to indicate a wanton disregard of the rights of others, punitive damages are allowed. Kennedy v. Railroad, 36 Mo. 351; Perkins v. Railroad, 55 Mo. 201; State v. Jungling, 116 Mo. 165; Albers v. Merchants ’ Exchange, 138 Mo. 140; Dorsey v. Railways, 83 Mo. App. 528; Wamsganz v. Wolf, 86 Mo. App. 205 -, Reamer v. Express Co., 93 Mo. App. 501; 5 Ency. Law (1 Ed.), p. 22, and cases cited in note 1; Day v. Woodworth, 13 Howard (U. S.) 363; Buckeley v. Knapp, 48 Mo. 152; Sedgwick on Measure of Damages, 520. (5) Punitive damages are allowable, even though the same acts are punishable as a crime. Corwin v. Walton, 18 Mo. 71; Gray v. McDonald, 104 Mo. 303. (6) The weight of authority and the best logical reasoning is in favor of the proposition that punitive damages are allowable in actions at law for infringement of trade-marks and substitution of goods. Hopkins on Unfair Trade, pp. 241-242; 4 Sutherland on Damages, note 1 to sec. 1202, p. 3476; Warner v. Roehr, 29 .Fed. Cas. 266; Hall on Trade-marks (1903), sec. 324; Brown on Trademarks (2 Ed.), sec. 520; Day v. Woodworth, 54 U. S. (13 Howard) 371; Fortheringham v. Express Co., 36 Fed. Rep. 252; Railroad v. Humes, 115 U. S. 512; Barry v. Edwards, 116 U. S. 550; Railroad v. Harris, 122 U. S. 507. (-7) The case of Addington v. Cullinane, 28 Mo. App. 288, does not decide or hold that exemplary or punitive damages cannot be allowed in a case at law for the infringement of a trade-mark.
   ROY, C.

This is a suit instituted February 23, 1904, in the circuit court of the city of St. Louis for damages for the infringement of a trade-mark. On a jury trial October 19, 1904, plaintiff had a verdict for one cent compensatory damages and $500' punitive damages, and judgment accordingly. On appeal to the St. Louis Court of Appeals the judgment was reversed in an opinion reported in 119 Mo. App. 693. One of the judges of that court being of the opinion that the decision is in conflict with Kennedy v. Railroad, 36 Mo. 351, the cause was certified to this court.

The Judge & Dolph Drug Company, one of the defendants, is a corporation engaged in selling drug’s and cigars at retail in St. Louis for a good many years. Defendant Taylor was the cigar clerk of the company from October, 1900, to the time of the trial.

Plaintiff claimed in his petition that he had been making and selling cigars in St. Louis for fifteen years under a trade-mark which was composed of the words “Flor de Lampert” and the picture of the plaintiff, which trade-mark was by the plaintiff on February 26, 1892, filed and recorded in the United States Commission of Patents Office.

That by reason of the quality of the tobacco used and the efforts of plaintiff in advertising the same, the plaintiff’s cigars sold under said trade-mark had gained great reputation on account of their excellent quality; and that during all that time plaintiff had received large profits from the sale of the cigars. That plaintiff during the time from March 11, 1902, to February 15, 1904, sold to defendants cigars so manufactured by plaintiff, on the boxes of which was said trade-mark, and said cigars were so sold to defendants to be sold at retail to tbeir customers. That during all that time defendants, well knowing the reputation of plaintiff’s cigars for excellent quality, did wrongfully, wilfully and wickedly substitute and place other cigars of cheap and inferior quality in the boxes bearing said trade-mark and sold them to their customers as and for cigars manufactured by the plaintiff, thereby intending to injure the plaintiff and to injure the reputation of plaintiff’s cigars, and to cheat and defraud the public and their customers. The actual damages were alleged at $5000, and the punitive damages at the same amount.

The answer admitted the corporate existence of the drug company, but was, in effect, otherwise a general denial.

The evidence tended to establish all the allegations of the petition, and tended to show several sales by Taylor as such clerk of substituted inferior cigars from boxes having said trade-mark. '

Defendant Taylor was arrested and fined in the Federal court for violation of the revenue laws in such sales. The revenue officers testified to* finding the substituted cigars in boxes having plaintiff’s trademark, in the defendant’s store, and at the same time finding plaintiff’s genuine cigars in another such box. The president of defendant drug company loaned Taylor $25 to pay his fine in the Federal court and retained him in its employ.

Mr. Bierman, deputy collector of internal revenue, testified that he bought three of the substituted cigars and that two were left in the box; he went out and gave the cigar to Mr. Lampert, and when he went back there were sixteen cigars in the box. On cross-examination by defendant’s counsel, Mr. Atwood, deputy collector of internal revenue, testified that complaints had been made to him by various other cigar makers that defendants were substituting their cigars. Mr. Farrar, a real estate man, testified that the substituted cigars were like “these machine cigars, so they call them; smooth, round, straight, light cigars, that haven’t any taste, no flavor.”

There was no direct evidence to show that any one connected with the drug company except Taylor had any knowledge of the infringement. Mr. Judge, president of the drug company, disclaimed any knowledge of any substitution of cigars, and testified that the company carried a $90,000' stock of goods with $80,000 insurance and was worth net $10',0,00l, with $15,000 capital stock.

The fourth and fifth instructions were as follows:

" 4. The court instructs the jury that if they believe from the evidence that the defendants wilfully and maliciously, between the dates of November 1, 1903, and February 15, 1904, sold cigars which were not manufactured by plaintiff, from boxes having thereon the trade-mark and picture of plaintiff, as cigars manufactured by plain! iff, and if the jury further finds from the evidence that the plaintiff is entitled to compensatory or actual damages in any sum whatever, as defined in other instructions given to them, then they are at liberty to find in addition to said actual damages such further sum in the way of exemplary or punitive damages, by way of punishment to defendants, and as an example to others, as in their sound judgment, under all the evidence in the case, they believe the defendants ought to pay, not exceeding $5,000.
“5. The jury are instructed that malice is the wilful or intentional doing of a wrongful act without legal justification or excuse.”

OPINION.

I. The trial court properly refused defendant’s demurrer to the plaintiff’s evidence. The evidence fully covered the plaintiff’s case as made by the pleadings, except that there was no evidence as to the quantum of damages. It is the clearly established law that for every infraction of his legal-right the party injured is entitled to at least nominal damages, and we adhere to the opinion of the Court of Appeals on that point.

II. Whether exemplary damages are recoverable where there are allowed only nominal actual damages is a question as to which the authorities are divided, the courts of this State and the Federal courts, as well as legal reason, and the greater weight of authority, being in favor of such recovery.

Some of the decisions of the courts speak of nominal damages as being something else than actual damages, whereas the nominal damages assessed for the violation of a legal right where there is no showing as to the quantum of damages are actual or compensatory damages. This court has spoken very clearly on that subject in Hoagland v. Amusement Co., 170 Mo. l. c. 345, where it is said: “The jury in finding for plaintiff in effect found that defendants arrested the plaintiff and cursed and abused him without any lawful excuse or reason therefor, and upon that finding he was entitled to have actual damages in some amount assessed in his favor. Under such circumstances at the common law he is entitled to pecuniary reparation by way of damages, at least nominal, and as much more, if anything, as the jury may tbink him entitled to under the evidence.”

The consensus of authority is to the effect that punitive damages are not recoverable where no actual damages are allowed. But that is a very different thing from holding that they are not recoverable in connection with nominal actual damages. There are comparatively few cases holding that nominal actual damages will not support exemplary damages.

The leading case in opposition to the allowance of punitive damages where only nominal actual damages are allowed is Stacy v. Portland Pub. Co., 68 Me. 279, for libel. The court in that case cited no authorities, and its reasons for so holding were based almost entirely on the peculiar facts of that case, and in the conclusion the following language is used: “There may be cases, no doubt, where the actual damages would be but small and the punitive damages large. But this case is not of such a kind.” That case was followed and approved in Maxwell v. Kennedy, 50 Wis. 645.

The cases .cited by appellants from Illinois and Michigan turned on the construction of statutes against the sale of intoxicants to inebriates and have no application here. The Iowa cases, Kuhn v. Railway, 74 Iowa 137, and Schwartz v. Davis, 90 Iowa 324, were based on the Illinois cases, the Iowa court seemingly overlooking the fact that the Illinois cases only applied to suits brought under the statute.

On the other hand, the Supreme Court of New York, in Prince v. Brooklyn Eagle, 16 Misc. 186, after citing the Stacy case, said: “But I do not think it is the law of this State; a person may be of such high character that the grossest libel would damage him none; but that would be no reason for withdrawing his case from the wholesome, if not necessary, rule in respect of punitive damages. It is in such cases that the rule illustrates its chief value and necessity.”

In Press Pub. Co. v. Monroe, in the United States Circuit Court of Appeals, 73 Fed. 196, it is said: “There is room for argument against the allowance of exemplary damages at all as anomalous and illogical. Some courts have held that it is unfair to allow the plaintiff to recover not only all the loss he has actually sustained, but also the fine which society imposes on the offender to protect its peculiar interests. But if if be once conceded that such additional damages may be assessed against the wrongdoer, and, when assessed, may be taken by the plaintiff — and snch is the settled law of the Federal courts — there is neither sense nor reason in the proposition that such additional damages may be recovered by a plaintiff who is able to show that he has lost $10', and may not be recovered by some other plaintiff who has sustained, it may be, far greater injury, but is unable to prove that he is poorer in pocket by the wrongdoing of defendant,” and in Railroad v. Sellers, 93 Ala. 9, the court, after quoting from the Stacy Case, said: “The position of the Supreme Court of Maine can be sustained in principle, it seems to us, only by assuming that which is manifestly untrue, namely, that no act is criminal which does not inflict individual injury capable of being measured and compensated for in money.”

The Supreme Court of Kansas, in Hefley v. Baker, 19 Kan. 9, which was a suit in trespass to the realty, held that plaintiff “was only entitled to nominal damages and to such exemplary damages as the jury might think proper to give him.”

In Flanagan v. Womack, 54 Texas 45, 51, the court said: “It is a general rule, that for every unlawful trespass the injured party is entitled to at least nominal damages. Certainly this should be so if the trespass was of such character as to authorize exemplary damages. This nominal damage would be the measure of the actual damage if no other is shown, and must necessarily arise in every case in which exemplary damages could be given.”

The United States Circuit Court for the District of Kansas held in Wilson v. Vaughn, 23 Fed. 229, in favor of the rule allowing punitive damages in connection with nominal damages.

We come now to a consideration of the decisions in this State on the question. The first in order of time is Favorite v. Cottrill, 62 Mo. App. 119, in which Judge Biggs said, after quoting from the Stacy Case: “But there is a line of decisions, equally respectable, which hold to the 'contrary.” In Ferguson v. Publishing Co., 72 Mo. App. 462, a libel case, Judge Bond clearly and satisfactorily upholds the right to punitive damages in such cases, and his opinion is quoted and commended in 2 Sutherland on Damages, sec. 406.

To the same effect is Mills v. Taylor, 85 Mo. App., l. c. 115. And it was .said in Brennan v. Maule, 108 Mo. App. l. c. 338: “It is now settled in this State that actual damage in at least a nominal sum must be found as a condition for the recovery of exemplary or punitive damages” It may be interesting in this connection to call attention to Courtney v. Blackwell, 150 Mo. l. c. 277, in which the damages for slander were assessed at a lump sum as punitive damages, there being no finding as to actual damages on account of oversight in the form of the verdict given to the jury. This court refused to reverse the case on account of the failure to find actual damages.

Our attention has been called to many. infringement cases in equity in which the courts refused to order an accounting where plaintiff’s damages were nominal or very small. The remedies in equity and at law are radically different. Equity gives as damages the profits of the defendant; while the law limits them to the loss suffered by plaintiff. Equity restrains future wrongs by injunction. Law seeks to prevent such future violations by inflicting exemplary damages for past offenses.

We hold that a verdict for nominal actual damages will support a verdict for punitive damages.

III. It is insisted by appellant that exemplary damages are not recoverable in this case for the alleged reason that there is no showing of malice or oppression. On that proposition we are forced to a different conclusion from that reached by the Court of Appeals. We concede that the cases there cited require that there shall be malice in the case. There are two hinds of malice; malice in fact, and malice in law. Legal malice as distinguished from acttíal malice will justify exemplary damages in this State.

In Goetz v. Ambs, 27 Mo. 28, 33, the court says: “If the injury is not intentional, but results simply from a want of proper care, nothing more should be recovered than will compensate for the actual damage; but if the act is wilful or intentional then ‘the idea of compensation is abandoned, and that of punishment introduced. It is said generally that malice must exist to entitle the plaintiff to anything more than reparation for the injury; but it will be found that the word malice is always used, in such connections, not in its common acceptation of ill-will against a person, but in its legal sense, willfulness, a wrongful act, done intentionally, without just cause.’ ”

“To entitle the plaintiff to recover punitive damages he must show that the act complained of was unlawful, and further that it was a wanton or malicious act. In other words he must show an unlawful act coupled with an intentional wrong.” [State v. Jungling, 116 Mo. l. c. 165.]

“The average layman would believe that malicious means ill-will, spite, holtility towards the other party. This is not the legal meaning. Those feelings may or may not be present in the legal meaning of the term. The legal meaning of the term is the intentional'doing of a wrongful act without just cause or excuse. ’ ’ [McNamara v. St. Louis Transit Co., 182 Mo. l. c. 681.]

The Supreme Court of the United States held in Railroad v. Arms, 91 U. S. 489, that punitive damages eohld be allowed in actions for torts where the injury is wilful or is the result of that reckless indifference to the rights of others which is equivalent to an intentional violation of them.

"We therefore hold that the question of malice and punitive damages was properly submitted in the fifth instruction.

IV. We come now to the consideration of the question as to whether cases for the infringement of trade-marks are outside the rule allowing exemplary damages. Appellants claim they are. They call our attention to a long line of patent cases which were held by the courts not to be within the rule as to exemplary damages; and appellants claim that trade-mark cases are governed by the same rule as in patent cases. An examination of those cases, however, will reveal the fact that in 1836 it was provided by act of Congress that the jury should not in patent cases allow vindictive damages, but that the court should have the power to inflict punitive damages within the limits of trebling the actual damages found by the jury. [Seymour v. McCormick, 16 Howard, 480.]

It will thus be seen that those cases rest solely on the act of Congress and are not authority for appellant’s contention.

The Am. and Eng. Ency. Law, vol. 28, 438, holds that exemplary damages cannot be recovered, citing Taylor v. Carpenter, 2 Woodb. & M. (U. S.) 1, decided by the United States Circuit Court at Boston, in 1846. In that ease the court (l. c. 22) said: “So in very corrupt or flagitious wrongs, if a criminal prosecution lies for the public offense, I do not see much justification for what are called vindictive damages there, or smart money in the civil suit, as the criminal one covers them. ’ ’

That reasoning is opposed to the well established law in this State, as this court has uniformly held that the right to exemplary damages is not removed by the fact that the same wrongful act is punishable criminally. [Corwin v. Walton, 18 Mo. 71; Gray v. McDonald, 104 Mo. 313; Buckley v. Knapp, 48 Mo. 152.]

The only other case found which lends color to appellants’ contention on this point is Addington v. Cullinane, 28 Mo. App. 238. That was an action at law for damages for the infringement of a trade-mark. There was an instruction telling the jury that the measure of damages was the net profits made by defendants, unless there was malice on the part of defendants, in which case they might find exemplary damages. The learned judge who wrote the opinion in that case held the instruction .erroneous because it made the defendants’ gain instead of plaintiffs’ loss the measure of actual damages. He did not discuss the subject of Exemplary damages, and we do not construe that case as expressing any opinion on that subject.

Hopkins on Trade-Marks, page 356', says that the better rule is in favor of such allowance and that it is difficult to see how the result stated in Taylor v. Carpenter and Addington v. Cullinane, supra, was reached, adding, “They are wholly without precedent and opposed to the rule of damages which obtained at common law.”

Judge Blodgett in Warner v. Boehr, Fed. Case No. 17189a, a case for the infringement of a trademark, in the Northern District of Illinois, instructed the jury that exemplary damages might he allowed “in eases of this character, where you are satisfied from the proof and from the admissions in the case that the fraud — the intention to defraud — is at the bottom of (he matter.” Paul on Trade-Marks, sec. 324, and Browne on Trade-Marks, secs. 519 and 520, hold in favor of such allowance.

If the jury found all that the evidence tended to prove, they found that the clerk, Taylor, was making a practice of substituting cheap cigars in boxes with plaintiff’s trade-mark thereon, and also in place of the cigars of other makers, to such an extent that various makers of cigars complained to the revenue officers ; that Taylor was fined in the Federal court for such, substitution, and the president of the company-loaned him the money to pay the fine and retained him as such clerk, showing that if the higher officers of the company knew nothing of his wrongdoing while it was going on^they did not repudiate him after learning all about it; that the well-earned reputation of various brands of cigars had being besmirched, and customers were being disappointed and disgusted with cheap substitutes for their favorite smoke. In other words Taylor, as such clerk, was running amuck in the cigar world, destroying reputations and offending tastes, all done willfully, intentionally and without any sort of justification or excuse, for dishonest gain. Yet from the very nature of the trade it was practically impossible to prove more than nominal actual damages.

It must be remembered that this case has been briefed on both sides on the undisputed theory that the acts and intent of the clerk in making said sales bind the drug company as effectually as if done by the president of the company himself.

The judgment is affirmed,

Bond, G., not sitting.

PER CURIAM

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

All the judges concur.


source: Caselaw Access Project

author: ROY, C. PER CURIAM.

license: Public Domain

text:
    KATE SUGG, Appellant, v. JOHN E. DUNCAN et al.
    Division Two,
    December 19, 1911.
    1. TITLE: Sale for Taxes: Prior Recorded Deed from Owner: Notice. It is held in this suit to quiet title under Sec. 2535, R. S. 1909, that the grantees under a deed made before suit brought against the grantor for taxes, and recorded after judgment and execution issued but before sale of the land, will prevail against the grantees from the purchaser at said sale. [Distinguishing Hilton v. Smith, 134 Mo. 499.]

      2. SALE FOR TAXES: Prior Recorded Deed from Owner: Suit to Quiet Title: Costs: Sec. 11508, R. S. 1909. The case of State ex rel. y. Sack, 79 Mo. 661, is distinguished from this case on the point relating to payment of costs.
    Appeal from Pemiscot Circuit Court. — Eon. Eenry G. Riley, Judge.
    Affirmed.

      J. R. Rrewer for appellant.
    Where the record owner is sued for taxes on the land and judgment is rendered against him and after this judgment is rendered a deed is filed for record from the judgment defendant to a third party and after this deed is filed for record the land is sold under .the judgment, the purchaser at the sale for taxes is the owner of the land or acquires the title to it, although such deed was made before the suit for taxes was filed. Hilton v. Smith, 134 Mo. 499; Kane v. Railroad, 112 Mo. 38; 'Schnitger v. Rankin, 192 Mo. 35; Land & Lumber Co. v. Bippus, 200 Mo. 688.

      C. G. Shepard and Duncan & Rragg for respondents.
    The purchaser at the tax sale acquired no interest in the land in question, because Sipes had parted with his interest in and to said lands many months prior to the filing of said tax suit, and the deed conveying Sipes’s interest was made a matter of record eight months and twenty-one days before the date of the sale of the interest of Sipes in said land, and Sipes having previously conveyed his interest by deed properly made a matter of record, the purchaser at the tax sale took only such interest as Sipes had. Sipes having no interest to be conveyed, the purchaser at the tax sale acquired no interest at said sale. Davis v. Owenby, 14 Mo. 170 ; Stuart v. Ramsey, 196 Mo. 404; Wilcox v. Phillips, 199 Mo'. 288; Machine Works v. Bowers, 200 Mo. 231. In making sales under tax judgments the sheriff sells only the right, title, and interest of the judgment debtor, and in the case at bar the judgment debtor having parted with all interest in the land in question by deed duly made a matter of record, the purchaser at the execution sale took nothing by his deed, as. he was a purchaser with notice. Yance v. Corrigan, 78 Mo. 96.
   ROY, C.

This is another of the numerous suits brought to quiet title under section 2535, Revised Statutes 1909, being section 650 of the revision of 1899, amended. There was a judgment and decree for the defendants and the plaintiff has appealed.

The petition is in the ordinary form; and the answer admits that defendants claim the land, and alleges that they are the owners of the land, and pleads estoppel and laches. It is admitted that John M. Sipes is the common source of title.

We will state the facts in the derivation of the two branches of the title in chronological order. On March 30, 1889, Sipes conveyed the land by general warranty deed to Joseph A. and Lucy S. Titcomb. A tax suit was begun against Sipes as defendant and owner of the land, returnable to the September term, 1889. The record before us does not show the date of the institution of that suit, or the date of the order of publication against Sipes as a non-resident. The terms of the Pemiscot Circuit Court were then held on the second Mondays in March and September, so that it is possible, in the absence of any showing to the contrary, that the suit was begun prior to March 30, 1889,.the date of the deed to the Titcombs. We cannot, however, presume that such was the case; and, for the purpose of this cas.e, we will presume that the suit was begun after that date.

The judgment in the tax suit was rendered September 10, 1889, for $9.60 taxes. The total costs at the time of the judgment were $19.99. The execution was issued December 10,1889, returnable to the March term, 1890. On January 9, 1890, the deed from Sipes to the Titcombs was filed for record. The sale was made under the execution on September 3, 1890, there having been no March term, 1890, of the court. The sheriff’s deed to F. D. Morris was dated September 30, 1890, and acknowledged June 8, 1891, and filed for record March 20, 1894. Fred D. Morris conveyed to Kate W. Sugg by deed dated December 6, 1895, and filed for record on the same day. J. A. Titcomb and Avife, Lucy S., conA^eyed to C. E. Bragg and J. E. Duncan, two of the defendants, by deed dated September 13, 1905, and filed for record September 13, 1905.

OPINION.

I. The statute requires that suits to enforce the lien for taxes on land shall be brought “against the owner of the property.” It says nothing about the ‘ record owner, ’ ’ leaving the question of the force and effect of the deed records to be determined by the law outside of that statute.

Such being the case, the collector and the purchaser at the tax sale are governed by sections 2810 and 2811 of the Revised Statutes, which affect them with notice of recorded deeds, and protect them against the existence of an unrecorded deed in the absence of actual notice thereof on their part.

We are not called on to say what would be the effect of a deed made by the record owner after the beginning of a suit against him for the taxes. In this case the deed antedated the institution of the suit and was placed on record after the rendition of the judgment and before the sale under the execution for taxes.

Such being the case, both the collector and the purchaser at the sale under the execution were from the time of the filing for record of the deed to the Titcombs constructively and effectively notified that the land had been conveyed to the Titcombs prior to the beginning of the suit. There is no law anywhere protecting them from such a result.

In Hannah v. Davis, 112 Mo. l. c. 607, the court said: “In Davis v. Owenby, 14 Mo. 170, this court held that a valid deed made before judgment, but after-wards recorded before sale on execution, carried title against a purchaser at the execution sale. That opinion has been so long accepted that we decline to re-examine the rule it states. [Parks v. Bank, 97 Mo. 133.] By .an attachment no greater estates or interests in land are reached than by a judgment. So that plaintiff’s position is not improved by reason of their attachment lien, they having received notice of all the facts above stated, affecting the rights of Mills before the execution sale at which they purchased his interest in the land.”

In Davis v. Owenby it was vain to urge that the creditor, by reason of the fact that the debtor appeared by the records to be the owner, was misled into the expenses of suit in order to recover his money, and that such loss was occasioned by the holder of the unrecorded deed. So in Hannah v. Davis, the fact that the attaching creditor was put to the trouble, expense and hazard of the attachment by reason of the deed being unrecorded, did not alter the case. It was clearly held in both those cases that the recording of the deed from the record owner prior to the sale uprooted every right of the purchasers: As no reason in those cases could be found for upholding the sheriff’s deeds, much less can a reason be found in cases of sale for taxes. In such suits the plaintiff is put to no expense. He is not liable for costs or attorney’s fees. The only result of having the tax suit come to naught by the filing of a deed from the record owner made prior to the institution of the suit, is that suit will have to be brought against the grantee under that deed.

Under our registry laws the constructive notice resulting from the record of a deed has the same effect as the actual notice of an unrecorded deed; yet, in Stuart v. Ramsey, 196 Mo. 404, it was held that the grantee under an unrecorded deed would hold as against the purchaser at a sale under execution for taxes who purchased with notice of the unrecorded deed. We have not overlooked the fact that in that case the collector had notice prior to the institution of the suit that there was such unrecorded deed. But that does not change the result.

The conclusion necessarily follows that the recording of the deed to the Titcombs prior to the sale for taxes was sufficient to entitle the grantee in such deed to hold the title as against the purchaser at the tax sale.

Lamm, J., in Harrison Machine Works v. Bowers, 200 Mo. 219, collected the authorities on this subject, and clearly showed the pathway along which one must travel to the proper conclusion, at the same time saying: “But it is not necessary for us to decide that question in this case, and we suggest it, but leave it open. ’ ’

We are of the opinion that the title under the deed to the Titcombs must and does prevail over that under the sheriff’s deed under the execution for taxes. •

II. Our attention has been called to State ex rel. v. Sack, 79 Mo. 661, in which it was held that where a suit is brought against the record owner and the true owner is afterwards made a party and seeks to redeem the land from the taxes he must pay all the costs,, including those incurred prior to his being made a party. That case, so far as that point is concerned, has never been cited in any other case. That case was not a collateral attack on the tax deed as here. The facts as to the validity of the assessment and levy of the tax were in issue. But such is not the ease here. As against the holders under the ’conveyance to the Tit-combs, the validity of those taxes has never been adjudicated. Besides, those taxes were in effect paid by P. D. Morris, the purchaser at the tax sale; and there was at that time no law transferring to his grantee his right of action for the refunding of the taxes. The act of March 6, 1903 (Sec. 11508, R. S. 1909), was long after the sale for taxes in this case, and was held in an opinion by Judge Valliant (Haarstick v. Gabriel, 200 Mo. l. c. 245) not to apply to tax sales made prior thereto.

III. Appellant’s counsel have insisted that this case is controlled by Hilton v. Smith, 134 Mo. 499. In that case it was held that the person who claimed against the title under the sheriff’s deed under execution for taxes held no title- legal or equitable at the institution of the suit. .He merely held some certificates of purchase at tax sales under the revenue laws of 1872. The court said-: “In the absence of provisions defining the rights of the holder of a certificate of purchase, the generally accepted rule is that until the delivery of a deed he takes no title to the land either legal or equitable.’-’

The judgment is affirmed.

Bond, G. (sitting in Division Two when this case was argued), concurs.

PER CURIAM.

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

all the judges concurring.


author: FERRISS, J.

text:
    THE STATE v. JOHN SCHENK, Plaintiff in Error.
    Division Two,
    December 19, 1911.
    1. INFORMATION: While Indictment Pending: Seduction Under Promise of Marriage: Carnal Knowledge. Seduction, under promise of marriage is a different offense from carnal knowledge of an unmarried female of previous chaste character between the ages of fourteen and eighteen years; and defendant is not, for that reason, entitled to have quashed an information charging the last offense filed while an indictment charging the other was still pending.
    2. ;-: -: While Indictment is Pending: Dismissal before Trial. The words of the statute (Sec. 5055, R. S. 1909), declaring that “the mode of procedure which shall be first instituted by the filing of the indictment or information for any offense shall be pursued to the exclusion of the other, so long as the same shall be pending and undetermined,” at most mean only that the information shall not be tried while the indictment is pending. So that, even where the offense charged in each is the same, if the indictment is dismissed before the information is tried, the statute is satisfied, and the information should not be quashed.
    3. STATUTE: Amendment: Afterwards Repealed. Where a statute is amended and afterwards the original act is repealed, ' the repeal operates upon the amendment also. Especially should this he the rule where the repealing act covers the whole subject of both the original and amendatory acts.

      4. -: -: -: Prosecution by Information: Preliminary Hearing. In 1905 the Legislature amended article 3 of chapter 16 of the Revised Statutes of 1899 by adding a new section thereto to be known as section 2476a„ providing that no information should be filed charging a capital offense until the accused shall first have been accorded a preliminary hearing. In 1907 the Legislature amended this section 2476a by changing the words “capital offense” to “felony.” In 1909 the Legislature, without referring to the Act of 1907, repealed section 2476a, “as set forth on pages 132 and 133 of the Laws of 1905,” and “enacted in lieu thereof” a new “section 2476a,” in which the words “capital offense” only are retained, and which covers the whole subject with reference to preliminary hearings prior to the filing of an information. Held, that the Act of 1907 was repealed by the Act of 1909, and an accused who is not charged with a capital offense is not entitled as a matter of course to a preliminary hearing before the prosecuting attorney can file an information against him in the circuit court.

      5. STATUTE: Enacted at Revising Session: When Effective. A new statute enacted at a revising session of the General Assembly in 1909, without an emergency clause, went into effect within ninety days after adjournment, and not on November 1, as did the official repository or compilation of bills of existing laws that were published in the form of the Revised Statutes. The Act of 1909, repealing the Law of 1905 requiring a preliminary hearing in capital cases before- an information •is filed and enacting a new section in lieu thereof, went into effect in ninety days after the adjournment of the Legislature, and not on November 1. This is shown not only by. an examination of the declaratory" Act of 1909, but of all similar acts since the Constitution of 1875 was adopted and of those acts in force at the time of its adoption.
    6. -: Legislative Construction: Constant Acquiescence for Long Years. A construction put upon a similar statute by the courts, and the acquiescence therein by • the Legislature at previous sessions, and by the other departments of the government, for a period of over thirty years, as to when a new statute enacted by the General Assembly at a revising session goes into effect, while not binding, should have serious consideration in arriving at the meaning of the apparently inconsistent statutes in hand.
    7. CARNAL KNOWLEDGE: Evidence: Broken Promise of Marriage. Testimony of prosecutrix in a carnal knowledge case that in February prior to the alleged offense in April defendant promised to marry her, that the promise was broken and she subsequently forgave him before the offense was committed, was incompetent. That promise of marriage was entirely disconnected with the offense, and besides was not an essential ingredient of the offense. But it was competent for the State to bring out the entire conversation at the time of the alleged sexual relation, even if it included a promise of marriage, as a part of the res gestae.

    8. -: Two Separate Acts: Instruction: Of Previous Chaste Character. The information charged that defendant on September 26 had carnal knowledge of a certain female of previous chaste character, between the ages of fourteen and eighteen years. She testified that there were two acts of sexual intercourse, one in April and the other in September. Selct, that she was not of chaste character in September, and an instruction directing the jury to convict if they found that the offense charged was committed “at any time within three years next before the 21st day of September,” was erroneous. The instruction should have restricted the jury to a consideration of the alleged act committed in April.

      9.--; Sufficiency of Evidence. The court will not usurp the province of the jury; and where the story of the prosecutrix, though improbable in many respects, if believed, makes a case for the jury, the court will not say that the case should not be submitted to the jury for its verdict.
    Error to Knox Circuit Court. — Now. Chas. D. Stewart, Judge,
    Reversed and remanded.

      L. L. Gotley for plaintiff in error.
    (1) The indictment offered in evidence on the hearing of the motion to quash, was for the same offense as that charged in the information, although the punishment under the indictment may have been different from that under the information. The punishment, however, might have been the same under the indictment (Sec. 4478), as under the information (Sec. 4472). The offense was the same under both charges, that is, sexual intercourse between the same parties at the same time and place. Bouvier’s Law Dictionary, Webster’s Unabridged Dictionary, “Offense.” The offense mentioned in the statute is the commission of the wrongful act. The punishment which the Legislature prescribes for the offense is quite a different thing. Usually and generally there are different grades of punishment provided for the same offense, but there can never be but one punishment for the same offense. Under the statute (Sec. 5055), the State was bound to elect as to whether it would proceed by indictment or information in this case. Having first instituted its procedure by indictment it was bound to pursue that method to the exclusion of the procedure by information, as long as the indictment was pending and undetermined. The record shows the indictment was pending and undetermined when the information was filed. The State was also bound to elect as to whether it would proceed under section 4478, for seduction under promise of marriage, or under section 4472,. for carnal knowledge. The indictment for seduction under promise of marriage was an election by the State to proceed under section 4478." It is manifest that a conviction under the charge in the indictment would have been a bar to any further prosecution under section 4472, for carnal knowledge. Wharton’s Criminal Law (3 Ed.), page 257. State v. Harney, 168 Mo. 200; State v. Smith, 190’ Mo. 720. It must follow that the State having elected to prosecute the defendant by indictment for seduction under promise of marrige, could not lodge another charge for the same offense by information for carnal knowledge, while the former charge was pending and undetermined. The Act of 1907 (Laws 1907. p. 243), is an amendment of said Act of 1905, making it apply to all felony cases. The amendment consists in striking out the words “capital offense,” and inserting in lieu thereof the word “felony.” The Act of 1905 (Laws 1905, pp. 132 and 133), is a new section requiring preliminary examinations in all capital offenses prior to filing the information by the prosecuting attorney. The Act of 1907, (Laws 1907, p. 243) is an amendment of said Act of 1905, making it apply to all felony cases. The amendment consists in striking out the words “capital offense,” and inserting in iieu thereof the word “felony.” The Act of 1909', Laws 1909, p. 460, expressly and specifically repeals the Act of 1905, and then enacts anew said Acts of 1905, except that the new Act of 1909, is with reference to article 2, chapter 16, R. S. 1899’, whereas the section repealed had reference to article 3, chapter 16, of Revised Statutes of 1899: . The reference in the Act of 1905 to “article 3” was probably intended to be to “article 2,” which deals with preliminary examinations. To make this correction was probably the reason for the re-enactment of the Act of 1905. - The Act of 1909 adds a proviso to the new section which was not a part of the Act of 1905. The Act of 1907, which provides for preliminary examinations in felony eases, was not repealed by the Act of 1909. The Act of 1909 recites that it repeals the Act of 1905', and to be certain that it refers alone to that act the title and date of approval of said act is set out, and then, finally, to make assurance doubly sure, it recites that it is the act as set forth on pages 132 and 133 of the Laws of 1905 that is hereby repealed. From these recitals it is manifest that the Legislature never intended to repeal the Act of 1907 by the Act of 1909. The proviso to the Act of 1909 is further evidence that it was not intended to repeal the Act of 1907. These two acts are not inconsistent with, each other; and can be so construed as to permit both to stand. Evans v. McFarland, 186 Mo. 723; State ex rel. v. Wilder, 197 Mo. 27. The two statutes should be so construed as that both may stand if possible. Manker v. Faulhaber, 94 Mo. 439; State ex rel. v. Walbridge, 119 Mo. 383¡; State ex rel. v. Wells, 210 Mo. 620; State ex rel. v. Rinke, 140 Mo. App. 662. (3) The Act of 1909, Laws 1909, p. 460', is a part of the Revised Statutes of 1909, section 5056; was enacted as a revision bill and, consequently, did not take effect until November 1, 1909. The Act of 1907 was, therefore, in force in any event, until said Act of 1909 went into effect November 1, 1909, asa part of the revision. In that view, the defendant was entitled to a preliminary examination prior to the filing of the information against him, September 21, 1909. The Revised Statutes take effect by reason of declaratory act, Sec. 8094, R. S. 1909, on November 1 of the year of the revision session. Haskel v. Sells, 14 Mo. App. 91; Hausen v. Insurance Co., 66 Mo. App. 29; Westport v. Smith, 68 Mo. App. 63; Whitaker v. Insurance Co., 133 Mo. App. 664; State v. Brassfield, 81 Mo. 151; State ex rel. v. Edwards, 136 Mo. 360. The Act of 1909 as found on page 460, Laws 1909, is simply a revision, of the statute in relation to preliminary examinations, and the time it shall take effect and go into operation must be governed by section 8094 of the declaratory act. The Legislature may provide that laws shall take effect at a date later than the ninety days fixed by the Constitution. State v. Orrick, .106 Mo. 117. (4) The court erred in permitting the prosecuting witness to testify, against the objections of the defendant, that she was seduced by the defendant under promise of marriage. It was evident that the prosecuting witness had materially weakened the State’s case, on her cross-examination, by admitting she voluntarily went to the defendant’s house twice and had sexual intercourse with him. It was to counteract this damaging testimony, that caused the State to bring out evidence of a prior promise of marriage. The evidence of a promise of marriage was incompetent, because it had no tendency to prove the charge for which the defendant was being tried under the information. State v. Pruett, 144 Mo. 92. The court admitted the evidence of a promise of marriage, and in so ruling said he did not want it to be considered as evidence of a promise of marriage. In the case of State v. Minor, 193 Mo. 597, illegal testimony was introduced and was ordered by the court to be stricken out. This court said that was not sufficient. An instruction to exclude illegal evidence admitted in a criminal case will not cure the error of admitting it, if it was of a character prejudicial to the defendant. State v. Mix. 15 Mo. 153; State v. Hopper, 71 Mo. 425; State v. Fredericks, 85 Mo. 145; State v. Huehner, 93 Mo. 193 ; State v. Thomas, 99! Mo 235; State v. Spivey, 191 Mo. 87; State v. Martin, 229 Mo. 641. (5) The court erred in overruling defendant’s demurrer to the evidence, offered at the close of all the evidence in the case. (6) The court erred in giving instruction numbered one on the part of the State. This instruction was copied from State v. Knock, 142 Mo. 515, but tbe facts in that case are radically different from, this case. It directed the jury to find defendant guilty if at any time in three years next before the 21st day of September, 1909', the defendant did feloniously assault and carnally know the witness, etc; In the Knock Case the State relied-on five different acts of carnal knowledge, any one of which, according to the record in that case, would have been sufficient to have justified a conviction. In other words, it was not a ease in which the State was limited to the date alleged in the indictment. In the case here the proof was limited to the date alleged in the information. It was that date or nothing, according to the evidence, and, hence, the instruction should have been" confined to the date alleged in the information. The instruction was a roving commission to find the defendant guilty without regard to the evidence in the case. The case having been tried solely with reference to the date alleged in the information, the defendant could not ask the State to elect because there was no conflict as to other dates testified to. This instruction was too broad, under the evidence in this case, and was, therefore, prejudicial. Under said instruction the jury was authorized to convict the defendant “on general principles.” State v. Palmberg, 199 Mo. 248; State v. Pruitt, 202 Mo. 52.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for defendant in error.
    (1) Appellant’s counsel filed motion to quash on the ground that an indictment for the same offense was pending at the time the information was filed, and that appellant was not accorded a preliminary hearing prior to the filing of the information. The first ground is based upon the clause in Sec. 2576, R. S. 1899'. The indictment offered in evidence in connection with the motion was for a wholly different offense. The information here was drawn nnder Sec. 1838, R. S. 1899; as amended (Laws 1907, p. 230), and the indictment offered in evidence was drawn under Sec. 1844, R. S. 1899. The elements of the offenses defined by these two sections are different from each other in material respects. The punishments prescribed differ. The evidence which would support this information would not be sufficient to support the indictment mentioned. State v. ITarvey, 168 Mo. 199; State v. Taylor, 171 Mo. 473. The second ground of the motion is based upon the Act of 1907, Laws 1907, p. 243, amending the Act of 1905 (Sec. 2476a) so as to require that every defendant in a case of felony be accorded a preliminary hearing before the filing of an information against him. By the Act of 1909; Laws 1909; p. 460, the Act of 1905 (Sec. 2476a) was repealed and a new section enacted in lieu of that act which new section restricts the requirement as to preliminary hearings to capital cases. The Act of 1909 does not refer to the 1907 amendment of the Act of 1905. The amendment of 1907 to the Act of 1905, was, by its enactment, incorporated in and made a part of the Act of 1905, sec. 2476a. Epperson v. Ins. Co., 90 Mo. App. 438; Kamerick v. Castleman, 21 Mo. App.- 590; 26 Am. & Eng. Ency. Law, pp. 70S, 704, 706, 712. And the repeal of the Act of 1905 by the Act of 1909, carried with it, therefore, the repeal of the 1907 amendment to the Act of 1905; 26 Am. & Eng. Ency. Law, pp. 744, 735; Lewis’s Sutherland, Statutory Const., sec. 271 (156), 273; Sedgwick, Constr. Stat. & Const. Law, p. 96, note; Endlich on Interp. Stats., sec. 44, p. 58. The rule of construction is that if an act be amended, and subsequently to such an amendment the section of the original statute be repealed, the amendment is thereby repealed. Kamerick v. Castleman, 21 Mo. App. 590; Black on Interp. Laws, Secs. 130-132. (2) The Act of 1909 became effective on August 16, 1909; ninety days after the adjournment of the Legislature. Sec. 36, art. 4, Constitution; Sec. 4178, R. S. 1899. The Act of 1909, Laws 1909, p. 460 (Sec. 5292, R. S. 1909) was in force on September 1, the date of the filing of the information upon which appellant was tried and convicted. The act was not a revision measure, but a new and independent act passed at a revision session affecting but two sections and but one subject. The main object of the revision was to incorporate all the. existing statutes in three volumes, that a person desiring to know the written law upon any subject might learn it by an examination of one of those volumes, without the necessity of referring to many prior statutes upon the subject. Hamilton v. Rathbone, 175 U. S. 421. The very fact of the revision of the statutes presupposes that all the statutes to be collected together therein were in full force and effect at the time the act of revision was passed. It is intended as a substitute for all the public statutes in force before its adoption. 36 Cyc. 1166; State ex rel. v. Mason, 153 Mo. 23; State ex rel. v. Henderson, 160 Mo. 202; State ex rel. v. Aloe, 152 Mo. 475; State ex rel. v. Withrow, 154 Mo. 402; Ex parte Lucas, 160 Mo. 218. The court having construed the sections in the Act of 1899, identical with those relied on by plaintiff in error here, to not relate to or include the class of acts to which that under discussion belongs, that construction became a part of those seer tions when re-enacted in the same words in 1909'. Endlich on Inter. Statutes, sec. 367; Lewis’s Sutherland, Statutory Construction, sec. 309 (255); Sedgwick, Construction Stat. & Const. Law, pp. 214, 215; Handlin v. Morgan Co., 57 Mo. 116; Easton v. Oourtright, 84 Mo. 34; Mason v. Fearson, 9 How. 258; 36 Cyc. 1153, and cases cited. (3) The Legislature cannot postpone the taking effect of one act by an act passed after the passage of the first. Jackman v. Garland, 64 Me. 135; Matter of Howe, 112 N. Y. 102; Ross v. N. E. Mtg. Sec. Co., 101 Atl. 367; Swann v. Buck, 40 Miss. 304; Olmstead v. Cook, 89 Ala. 232. The term “revised statute” has a precise aucl well-settled meaning in the jurisprudence of the law. In the Matter of Norton, 39 N. Y. (App.) 371; Goodwin v. Prime, 92 Me. 363; Ellis v. Parcell, 100 Mich. 170; Casey v. Earned, 5 la. (5 Clarke) 12; Yinsant v. Knox, 27 Ark. 266; Falconer v. Robinson, 46 Ala. 340 -, Graham v. Muskegon Co. Clerk, 116 Mich. 571. The revision of statutes implies a re-examination of them. The word is applied to a restatement of the law in a corrected or approved form. Steamship Go. v. Joliffe, 2 Wall. 458; U. S. v. Barr, 4 Sawy. 254; U. S', v. Tinan, 11 Wall. 95; Knox v. Baldwin, 80 N. Y. 610; Gooclno v. Oshkosh, 31 Wis. 127; Corte.sy v. Territory (N. M.), 32 Pac. 505. The testimony as to the promise of marriage was competent. Appellant’s counsel had grilled prosecutrix as to her reasons for permitting intercourse. The testimony admitted was merely what appellant’s counsel had called for on cross-examination. No comjfiaint as to this can be sustained. In the first place, the evidence was competent, and in the second place, the cross-examination of prosecutrix estops appellant from, urging the point. State v. Beatty, 25 Mo. App. 215; Sec. 5115, R. S. 1909. The conversation at the time of the illicit act had been referred to by counsel on cross-examination of prosecutrix and the State was entitled to the whole of it. (4) The first instruction required the jury to find affirmatively every element of the offense before returning’ a verdict of guilty. It was correct in form and substance. State v. Knock, 142 Mo. 522; Sec. 4472, R, S. 1909'; State v. Day, 188 Mo. 367; State v. Hall, 164 Mo. 531. The rest of the instructions are rescripts of a series heretofore approved, with a correction suggested by this court. State v. Knock, 142 Mo. 523; State v. Nueslin, 25 Mo. 124.
   FERRISS, J.

Defendant (plaintiff in error), upon an information filed by the prosecuting attorney of Knox county in the circuit court thereof, was convieted of carnally knowing one Mary Lindsey, an unmarried female of previously chaste character, between the ages of fourteen and eighteen years, and his punishment fixed at two years in the penitentiary.

Mary Lindsey, the prosecutrix, resided with her parents in the southern part of Knox county, and was about seventeen years of age at the time of the commission of the alleged offense. The defendant owned and resided on a large farm in the same neighborhood. Lawrence Coomb and his wife, the latter being the sister of the prosecutrix, worked for and resided with the defendant, and Miss Lindsey frequently visited with her sister and slept in the same house.

The prosecutrix testified that the defendant began “keeping company” with her in October, 1907, and went with her regularly until February, 1908, when he ‘ ‘ commenced misbehaving, ’ ’ and she told him not to come to see her any more; that she afterwards forgave him, at his request, and the relationship was renewed the following April; that about the last of April or first of May, 1908, while she was visiting her sister at defendant’s house, and sleeping there, the defendant came to her bed about eleven o’clock at night, awoke her from her sleep, and had sexual intercourse with her; .that the act was repeated at his house on the night of September 26, 1908; that on both occasions the defendant told her “that he had a right to with me the same as a man had with his wife — that I was his intended wife, and he had a right to”; that as the result of the occurrence of September 26 aforesaid she gave birth to a child on July 2, 1909. She further testified that defendant, before the first misbehavior in February, 1908, promised to marry her.

C. H. Lindsey, father of the prosecutrix, testified that at the time defendant was arrested he heard defendant say, “That’s what a fellow gets for fooling with a girl.”

The State’s evidence further tended to prove that the prosecutrix bore a good reputation for virtue and chastity in the neighborhood in which she live^i, prior and up to the time of the commission of the alleged offense.

On the part of the defense there was considerable testimony tending to prove that a number of young men in the neighborhood sought the society of the prosecutrix and were often in her company, but there was nothing to show that her relations .with them had been in any way improper. It was attempted to be shown by the defendant that one of these young men, James Mitchell, fled the country immediately after the defendant’s arrest. Mitchell, however, being put upon the stand, testified that a Mr. Bantz, who owned a farm in the neighborhood and another near Newton, Kansas, employed him to work on his Kansas farm from the middle of September to the 12th of November, 1908; that after his return from Kansas he called on the prosecutrix several times, and that soon after defendant’s arrest he again went to Kansas to work for Bantz.

Prosecutrix testified that although she considered herself engaged to defendant all through Ike year 1908, she did not go with him-during the summer after the April episode, but often went buggy riding, to church and various social functions with several other men, and this at the request of defendant in order to avert suspicion of their engagement. According to her testimony, they had practically nothing to do with each other after February, 1908, excepting the two occasions of the alleged sexual intercourse. She was, however, keeping what might be termed steady company with the John Mitchell who went to Kansas about the time of defendant’s arrest. This particular company was designated, she says, by her betrothed, the defendant.

Defendant, on the witness stand, denied the alleged sexual intercourse, as also the promise of marriage. He also proved his good reputation.

In support of his motion to quash the information, the defendant gave in evidence an indictment against him charging that he seduced and debauched the prosecutrix on September 26, 1908, under promise of marriage, which indictment was filed in court on December 14, 1908. He further proved that this indictment remained undisposed of until the first day of the December, 1909, term of court, when it was dismissed. This action was taken prior to the trial on the information, which was filed September 21, 1909. Defendant also proved that no preliminary hearing was accorded to him prior to the filing of the information. The motion to quash was filed and overruled before defendant was arraigned upon the information. The material part of the motion to quash will appear in the course of the opinion.

Our opinion will be upon the following assignments of error, which are the only ones worthy of consideration : 1, Overruling of the motion to quash the information; 2, admission of illegal testimony; 3, error in giving instruction number one for the State. •

I. Two grounds were urged by defendant in support of his motion to quash. They are the third and fourth grounds assigned in the motion, and are as follows:

“Third. Because the offense charged in the said information is the same offense charged in an indictment returned by the grand jury of Knox county, Missouri, against the defendant, December 14, 1908, and which said indictment was pending in this court at the time the said information herein was filed, and said ■information was improperly and illegally filed by the prosecuting attorney, contrary to and against the Constitution and statutes of this State in such case made and provided.
‘ 'Fourth. Because the defendant was not accorded the right to a preliminary examination before some justice.of the peace in this county prior to the time of filing the said information in this case by the prosecuting attorney of this county.”

The first of these we rule against the defendant, because (a) the indictment charges seduction under promise of marriage under section 1844, Revised Statutes 1899, which is an offense different from that charged in the information, (b) Section 5055, Revised Statutes 1909, upon which defendant relies, provides: “But that mode of procedure which shall be first instituted by the filing of the indictment or information for any offense shall be pursued to the exclusion of the other, so long as the same shall be pending and undetermined.” This provision does not apply to the facts in this case. . The words therein, “shall be pursued,” mean only at most that the information shall not be tried while the indictment is pending; so that, even if the offense were the same, inasmuch as the indictment was dismissed before the information was tried, the statute was satisfied.

The second ground relied upon by defendant to sustain his motion to quash, namely, .that defendant was, not accorded a preliminary hearing before the filing of the information, rests upon two propositions.

(a) The Legislature in 1905 enacted a law (Laws 1905, p. 132) as follows:

“Section 1. That article 3 of chapter 16, of the Revised Statutes of Missouri of 1899, be and the same is hereby amended ly adding thereto a new section, to be known as section 2476a, which shall read as follows :
“Section 2476a. No prosecuting or circuit attorney in this State shall file any information charging any person or persons with any capital offense until such person or persons shall first have been accorded the right to a preliminary examination before some justice of the peace in the county where the offense is alleged to have been committed, in accordance with .article 3 of chapter 16 of Revised Statutes of Missouri of 1899. And .if upon such hearing the justice shall determine that the alleged offense is bailable, such person or persons shall thereupon be admitted to bail, conditioned for their appearance on the first day of the next regular term of the circuit court in such county, to answer such charges as may be preferred against them, and not to depart said court without leave.”

In 1907 this law was amended by an act (Laws 1907, p. 243) reading thus:

“Section 1. Preliminary Examination. — That section 2476a of article 3, chapter 16 of the Revised Statutes of Missouri, 1899, found in the Laws of Missouri, 1905, be and the same is hereby amended by striking out of said section the words ‘capital offense’ and inserting in lieu thereof the word ‘felony’; so that said section, as so amended, shall read as follows:
“Section 2476a. No prosecuting or circuit attorney in this State shall file any information, charging any person or persons with any felony, until such person or persons shall first have been accorded the right to a preliminary examination before some justice of the peace in the county where the offense is alleged to have been committed, in accordance with article 3 of chapter 16 of Revised Statutes of Missouri of 1899. And if, upon such hearing, the justice shall determine that the alleged offense is bailable, such person or persons shall thereupon be admitted to bail, conditioned for their appearance on the first day of the next regular term of the circuit court in such county, to answer such charges as may be preferred against them, and not to depart said court without leave.”

The Legislature, in 1909, repealed and re-enacted this Law of 1905, without referring to the 1907 amendment, by the following act (Laws 1909, p. 460):

“Section 1. Filing of Informations in Capital Offenses, When — Preliminary Examinations — That an act entitled ‘An act to amend article three of chapter sixteen of „the Revised Statutes of Missouri of 1899, relating to practice and proceedings in criminal cases, by adding thereto a new section, to be known as section 2476a,’ approved April 12, 1905, and as set forth on pages 132 and 133 of the Laws of 1905, be and the same is hereby repealed and a new section relating to the same subject, and to be numbered section 2476a, enacted in lieu thereof as follows:
“Section 2476a. No prosecuting or circuit attorney in this State shall file any information charging any person or persons with any capital offense until such person or persons shall first have been accorded the right to a preliminary examination before some justice of the peace in the county where the offense is alleged to have been committed, in accordance with article 2 of chapter 16 of Revised Statutes of Missouri of 1899. And if upon such hearing the justice shall determine that the alleged offense is bailable, such person or persons shall thereupon be admitted to bail, conditioned for their appearance on the first day of the next regular term of the circuit court in such county, to answer such charges as may be preferred against them and not to depart said court without leave: Provided, a preliminary examination shall in no case be required where same is waived by the person charged with crime.”

It will be perceived that the Act of 1909 limits the right to capital cases, as was provided in the Act of 1905.

Defendant claims that the amendment of 1907 was not repealed by the Act of 1909, and that said amendatory Act of 1907, extending the right of preliminary examination to all felony cases, is still in force. We cannot agree to this contention. The Act of 1905, by its terms, created a new section to be incorporated in the Revised Statutes of 1899, said section to be known as section 2476a, and to be regarded thereafter as if actually written into said Revised Statutes. The Act of 1907 by its terms amended this section, 2476a, which thereafter was to be regarded as if written into the revision as thus amended. The Act of 1909, by repealing the Act of 1905 which created section 2476a, in effect repealed section 2476a, and in lieu thereof enacted a new section, 2476a. This repeal of section 2476a repealed the section as amended by the Act of 1907. This is in accord with the authorities, which hold that where a statute is amended, as was the Act of 1905, and afterwards the original statute is repealed, the repeal operates upon the amendment also. [26 Am. & Eng. Ency. Law, p. 744; Kamerick v. Castleman, 21 Mo. App. 587; Blake v. Bracket, 47 Me. 28.] A further reason for the above conclusion is afforded by the fact that the amendment of 1907 is inconsistent with the Act of 1909, covering the whole subject with reference to preliminary hearings prior to the filing of an information.

(b) The defendant contends that the Act of 1909, by which the right to a preliminary examination is limited to capital cases, did not become effective until November 1, 1909, and that thereafter when the information was filed (September 21, 1909), the amendment of 1907, extending the right to. all felony cases, was still in force, and entitled the defendant to have the information quashed or abated, no such preliminary examination having been accorded to Mm.

This contention of the defendant that the said Act of 1909, passed at a revision session, did not'go into effect until the first day of November following, makes it necessary that we construe the constitutional and statutory provisions with reference to the time when acts passed at a revising session become effective.

The Constitution of 1875, sec. 41, art. 4, provides for the revision of the statutes as follows: “Within five years after the adoption of this Constitution, all the statute laws of a general nature, both civil and criminal, shall be revised, designated and promulgated in such a manner as the General Assembly shall direct; and a like revision, digest and promulgation shall be made at the expiration of every subsequent period of ten years.”

This provision of the Constitution plainly contemplates a revision of laws which are in existence at the beginning of the revising session, and has no reference whatever to acts which may be passed at such session. Pursuant to this provision of the Constitution, the Legislature, in 1879, passed the first declaratory act concerning the revision of the statutes. When the Legislature took up this subject, it became apparent at once that some provision must be made regarding the laws enacted during the revision session, it being obvious that the statutes as revised and promulgated should contain all the laws of the State of a.general character, including those'passed at the revision session. Consequently, the Legislature provided in this first declaratory act (Laws 1879, p. 210, sec. 2) as follows:

“The Revised Statutes shall contain all acts revised and amended or. enacted during the present session of the General Assembly, of a general nature (except as hereinafter excepted), and all other acts or laws of a general nature which were in force at the commencement of the session, and not expressly repealed, nor repugnant to the provisions of any act passed at the present session, and continued in force by their own provisions.”

This section simply provides what the Revised Statutes shall contain, and has no bearing on the question as to when- laws passed at the revision session shall go into effect. The declaratory act proceeds to indicate the nature of the work to be performed in the matter of revision, and the Legislature is directed to “collate, compile, arrange, classify and codify the Revised Statutes for publication,” and they are authorized (section 10)' “to supply any omission or correct any error or mistake in numbering or referring to the sections or parts of any act or law.” There is also provision for changing words, for making divisions and subdivisions, and for employing such terms and expressions as will facilitate reference to the laws. This section concludes with the following language: “So that they do not, in any case, change, modify or alter the law.” The ensuing sections, up to section 16, are merely directory as to the detailed-method by which the revision shall be effected. Prom section 10 to section 16 the subject dealt with is the existing statutes and their revision. Section 16 provides :

“The Revised Statutes, as declared by this act, shall take effect and go into operation from and after the first day of November, in the year of our Lord one thousand eight hundred and seventy-nine, except such acts passed by the present General Assembly and incorporated therein as shall by their provisions take effect at a different time; and until the Revised Statutes shall go into effect as herein provided, the existing statutes shall continue in force.”

It is argued that section 16, read together with section 2, above quoted, indicates the intention of the Legislature to provide not only-that all laws enacted at the revision session of a general nature shall be incorporated into the Revised Statutes, but also that such acts shall take effect and go into operation on November 1st following.

The Constitution of 1875, section 36, article 4, provides:

“No law passed by the General Assembly, except the general appropriation act, shall take effect or go into force until ninety days after adjournment of the session at which it was enacted, unless in case of an emergency (which emergency must be expressed in the preamble or in the body of the act), the General Assembly shall, by a vote of two-thirds of all the members elected to each House, otherwise direct.”

Prior to this constitutional provision, the law (section 4, article 4, chapter 86, Wagner’s Statutes of 1870') provided that “All acts of the General Assembly shall take effect at the end of ninety days after the passage thereof, unless a different time is therein appointed.” This section was amended by an act passed in 1877 (p. 292, Laws 1877) to conform to the language of the Constitution, as follows:

“All laws passed by the General Assembly, except the general appropriation act, shall take effect and go into force ninety days' after the adjournment of the session a,t which they were enacted, unless in case of an emergency (which emergency shall be set forth in the body of the act), the General Assembly shall, by a vote of two-thirds of its members elected to each house, otherwise direct. ’ ’

This Act of 1877 was incorporated in the revision of 1879, section 3149. It appears from the preface to the revision of 1879 that all laws of a general nature were either revised or adopted without change. Consequently, the revision of 1879 contained the section last above referred to, providing that all acts passed shall go into effect in ninety days, and the declaratory act, section 3168, providing that all acts shall go into effect November 1, except such acts as by their terms otherwise provide.

This same situation is found in the 1889 revision. The declaratory act passed at each revision session subsequent to 1879 has followed the exact phraseology of the one passed in 1879, excepting the provision regarding laws changing the time of folding courts, which was added in 1889' and retained thereafter. The ninety-day law lias also been retained in each revision without change.

It appears from the foregoing that during the entire period from 1879 to the present, the statutes have contained both the section which provides that all laws, without an emergency clause, shall go into effect in ninety days after the adjournment of the session, and the provision of the declaratory act that the Revised Statutes shall go into effect on November 1, except acts passed by the revising session which provide otherwise by their terms.

It will be perceived from the foregoing review of the Constitution anfl acts of the Legislature that section 8094 of the Revised Statutes of 1909, being the section which declares when the Revised Statutes shall take effect, in so far as it refers to acts passed by the then present General Assembly, was not passed to carry out any constitutional mandate, because as stated above, the provision in the Constitution for r¿vising the statutes makes no reference to laws which might be enacted during the revising session. The-provision in the declaratory act regarding laws passed at the revising session arose from the fact that it became necessary to include all the laws in the Revised Statutes, and consequently some provision had to be made as to incorporating therein acts passed at the revising session.

The question arises in this case whether section 8094 of the Revised Statutes of 1909 shall prevail over section 8061, which provides that all laws passed by the General Assembly shall go into effect ninety days after adjournment. Referring to the revision of 1899, it will be seen that section 4178 (sec. 8061, R. S. 1909) is contained in article 4, chapter 45, and that said article is designated as a revised bill. The revision committee of 1899', in a preface to the Revised Statutes, states that “ revi sed bills passed are designated by an asterisk” Consequently, section 4178, providing that all laws shall take effect in ninety days, is contained in an article which, as indicated by an asterisk, was revised at the same session of the Legislature which passed the declaratory Act of 1899; so that it cannot be said that this act was overlooked or ignored by that session. It was under consideration, and was re-enacted in the revised bill. Furthermore, it appears from an inspection of the Journal of the Senate for 1899 that the revised bill containing the provision that all laws shall take effect ninety days after adjournment was passed subsequently to the passage of the declaratory act of that year. The latter was introduced April 13 (p. 640) and approved May 22, (p. 1190). The former was introduced April 27 (p. 776), and approved May 29 (p. 1213). So that the 1809 Legislature revised and approved the general act providing that all acts,, except those with emergency clauses, should go into effect in ninety days, with full knowledge of the terms of the declaratory act theretofore enacted. Whether or not section 8061 of the revision of 1909 was passed in a revised bill does not appear, as. there is nothing in the Revised Statutes of 1909, as published, to indicate what bills were revised, or whether any hills were passed as revised bills. But it is apparent, at least as late as 1899, that the Legislature regarded both acts as being in force, and consequently must have considered that they were not antagonistic, and could be reconciled. The only way to reconcile them, however, and give effect to section 8061, is to hold that section 8094 does not contemplate that acts passed by the General Assembly in 1909 should wait until November 1 before going into operation, and that the Legislature, by the use of the words ‘‘Revised Statutes” in section 8094, meant that the statutes as a whole should take effect as a revision— that is, as the official repository of all the laws of the State — on November 1,. without intending, however, to prevent the operation of section 8061 upon bills jjassed at that session.

There is much confusion apparent from the various revisions concerning the methods adopted by the various General Assembles in carrying out the constitutional mandate respecting statutory revision. In 1879, as appears from the provisions of the Revised Statutes, as also in 1889, revised bills were introduced covering all subjects and chapters of existing laws, and such bills were passed except in cases where it was considered that no revision was necessary; but it does not appear from the Revised Statutes of 1899 what method was pursued, except that revised bills were indicated by asterisks. In 1909 the whole matter was turned over to a commission of lawyers. We think it apparent, however, considering the language -of the Constitution, and all of the proceedings of the various revising sessions, that the theory adopted was that the revision of the statutes had reference to existing laws, and that no new bill passed at a revising session should be regarded as a revision bill; also, that it was understood and contemplated by the Legislature at these various revising sessions that such new bills, notwithstanding the language of the declaratory act, should go into effect, as provided by law and as contemplated by the Constitution, ninety days after adjournment. Such appears to have been the construction put upon the law by this court in numerous decisions; by the Legislature itself, and by the various departments of the Government; and whatever view might be taken, as an original proposition, of the question as to the force and effect of the declaratory act, we are constrained to hold, in view of the construction put upon the law, as above indicated, for the last thirty years, that the act under consideration went into effect ninety days after the adjournment of the Legislature.

In 1899, the Secretary of State, in the certification of the acts, makes this statement: “The Legisla ture having adjourned on the twenty-second day of May, the laws without an emergency clause go into effect on Sunday, August 20, 1899.” In 1909, the Secretary of State in his certification (Laws 1909, p. 920) makes this statement: “The Legislature having adjourned the 17th day of May, the laws not revision measures, and without emergency clauses, go into effect Monday, August 16, 1909; the revision hills go into effect Monday, November 1, 1909'.”

Numerous cases have been before this court involving the question as to when the acts passed at a revising session of the Legislature went into effect. In none of them was the question presented here contested. In all of them it was assumed by the counsel on both sides and by the court that such acts did go into effect ninety days after the adjournment of the Legislature, and the statement is made both by the counsel and the court in several instances that such was the ease. Such assumption by the court and counsel is, of course, not binding, as the cases involved no express decision on this point. The fact that the question was not raised, however, is worthy of serious consideration, especially in view of the further fact that many of these decisions were made long before the session of 1909.

In 1899 the Legislature passed an act relating to the police force in the city of St. Louis. It was not a revised bill, nor did it contain an emergency clause. The Legislature adjourned on the twenty-second day of May, and consequently, under the ninety-day theory, the act went into effect on°the twentieth day of August following. A mandamus proceeding (State ex rel. v. Mason, 153 Mo. 23) was instituted in this court to compel the city auditor to audit pay-rolls and issue warrants for the payment of the police of the city of St. Louis from August 21, 1899, under the Act of 1899. The cause proceeded to judgment that the salary should be paid from that time. No question was raised as to when the act went into effect, but it was necessarily assumed by the court that the act did go into effect on August 20, 1899.

The case of State ex rel. v. Mason, 155 Mo. 493, was a mandamus procéeding to compel the city auditor of the city of St. Louis to audit a certain bill of expenses incurred by the board of election commissioners, appointed in August, 1899, under the act passed by the Legislature at the session of 1899. A peremptory writ of mandamus was awarded requiring the auditor to audit the salaries and bills for office supplies for August and September, 1899. Again, no question was raised as to the time when the act took effect, but the judgment necessarily assumed that the act was effective in August.

That same session of the Legislature passed an act creating the office of beer inspector, and provided for his duties. Various manufacturers of beer filed a bill on September 27, 1899, asking that the inspector appointed under the Act of 1899, and necessarily before September 27, be enjoined from proceeding under that act. On October 2 the inspector applied to this court for a writ of prohibition. [State ex rel. v. Wood, 155 Mo. 425.] No question was raised in that ease that the appointment was premature, and the statement was made by the court and counsel that the act did go into effect at the time indicated.

In the case of State ex rel. v. Henderson, 160 Mo. 190, was involved the question whether the Act of 1899, providing for a collateral inheritance tax, applied to a case where a testatrix died September 5, 1899, the will being probated September 21, 1899. It was decided that the act did apply, and this decision necessarily involved recognition of the fackthat the act took effect ninety days after the adjournment of the session.

In none of the above cases did the act provide when it should go into effect, or contain an emergency clause.

In State ex rel. v. Aloe, 152 Mo. l. c. 475, and State ex rel. v. Withrow, 154 Mo. l. c. 402, this court stated that the acts of June 19, 1899, and March 15, 1899, “there being no emergency clause,” took effect August 21, 1899. The same situation arose in the case of Ex Parte Lucas, 160 Mo. 218. All of the counsel on both sides and the court assumed, without discussion, that the Barbers’ Act of 1899 took effect ninety days after adjournment. The court, in fact, in terms so stated. So in the case of State ex rel. v. Washburn, 167 Mo. 680, there was involved the question whether election commissioners appointed under the Act of 1899 were properly appointed. The appointment was made, and they began their duties on August 21 of that year. No question was made in the case but that, so far as time was concerned, the appointment was properly made.

The Springfield Court of Appeals was created by an act passed during the session of 1909, and the judges for that court were appointed by the Governor prior to October of that year. The court organized, sat and heard a docket in October, and cases were transferred to it from this court, under the provisions of the act, prior to November 1.

We are cited to the case of Haskell v. Sells, 14 Mo. App. 91. In that case the validity of a corporation was challenged. It was organized September 23, 1879, under a law passed in 1879. In that case the court held that the act did not take effect until November 1, hut the decision was made distinctly on the ground that the act in question was a revised bill. So in State v. Edwards, 136 Mo. 360, which case involved a revised bill. The case of State v. Orrick, 106 Mo. 111, involved an act changing the time for holding court. Held, that the act took effect in ninety days.

Hausen v. Insurance Company, 66 Mo. App. 29, holds that the revised insurance laws of 1889 did not take effect until November 1. Reference to the Revised Statutes of 1889 shows that the insurance laws were revised and passed by a revised bill. [P. 2229, R. S. 1889.]

The case of Whittaker v. Insurance Co., 133 Mo. App. l. c. 667, cited by the defendant, is not in point.

Referring again to the beer inspection act, passed in 1899, the act went into operation by the appointment of an inspector in August of that year. In 1901 was passed an act (Laws, 1901, p. 181) authorizing the Governor to compromise and settle claims by the State for inspection fees for beer sold for consumption in this State after September 20, 1899. Here we have a plain legislative recognition of the fact that the Act of 1899 went into effect ninety days after the adjournment of the Legislature.

It has been the uniform practice of our Governors since 1879, where new offices have been created by a revising session of the Legislature, to make appointments to fill such offices on the theory that the law creating the office went into effect ninety days after the adjournment of the Legislature. Such appointments were made under acts passed in 1889, 1899 and 1909.

We regard as significant the fact that notwithstanding the construction which has been put upon these laws by the decisions of this court referred to; by the acts of the various Governors making appointments, and by the certificates contained in the official publication of the session acts, the Legislature, in 1909,' adopted the same phraseology in the declaratory act, and also in the general act concerning the time when laws should go into.effect. According to the ordinary rules of construction, it must be held that the Legislature re-enacted these laws with the construction which had been so placed upon them. Especially is this true where the Legislature itself has recognized such construction, as pointed out above, in the Act of 1901 compromising the beer tax. Furthermore, we are satisfied from a careful consideration of the constitutional provision, and the course taken by subsequent Legislatures, that it was not the purpose or policy of the law, by the provisions concerning the revision of the statutes, to disturb the general law providing the time when acts shall go into effect. It has not been held, so far as we are advised, that acts which are not revision acts do not go into effect until November 1. On the contrary, it has been uniformly recognized that such acts go into operation ninety days after the adjournment of the Legislature.

We are constrained to hold that the act in question became effective ninety days after the Legislature adjourned.

II. We think it was error to permit the prosecutrix to testify to the alleged promise of marriage made prior to February, 1908. It appears from her testimony that subsequently to this alleged promise she broke off her relations with defendant and forbade him her home. Afterwards, in April, she “forgave” him. Counsel for defendant interrogated the prosecutrix clearly as to what was said by defendant at the time of the alleged offense in April. It was, therefore, competent for the State to bring out the entire conversation at that time, even if it covered a promise of marriage. What was said then was competent upon the further ground that it was part of the res gestae; but in no sense was it competent to prove a promise of marriage three months anterior to, and entirely disconnected with, the offense. Especially is this true when the. alleged engagement was broken before the offense charged was committed. Such testimony was likely to prejudice the jury. Under a charge of seduction under promise of marriage, the uncorroborated evidence of prosecutrix as tp the promise is not sufficient to sustain the charge. To permit her to testify to such promise in a prosecution for the offense charged in this information allows her uncorroborated testimony on this point to go to the jury, when in fact the promise of marriage is not an essential ingredient of the offense. The essence of the offense is the unlawful sexual intercourse. It cannot he made to appear that the alleged engagement to marry made some time before February, and subsequently broken by the prosecutrix, in any way influenced her to yield in April.

The situation here is quite different from that presented in the case of State v. Reed, 237 Mo. 224, decided at this term. In the latter case we hold the evidence of a promise to marry to he competent where “such promise is so immediately connected with the question of her previous chaste character, and with the act of the defendant tuhich the law denounces, that it becomes fart of the transaction, and is essential to a proper understanding of the facts which constitute the offense.”

III. The first instruction given for the State was erroneous, in that it directed the jury to convict if they should find that the offense charged was committed “at any time within three years next before the 21st day of September, 1909,” the date named in the information. Under our ruling in the case of State v. McMahon, 234 Mo. 611, defendant could not he convicted of the offense which the prosecutrix testified was committed September 21, for the reason that, upon her own evidence, she was not then of chaste character. Evidence of the act committed in September was allowed to go to the jury without any limitation or explanation by the court. Under the instruction as given the jury would he permitted to convict if they found that the act was committed in September, whether or not they found that the defendant committed the act in April preceding, as testified to by the prosecutrix. Testimony was given of two acts, one in April and one in September, and the jury were instructed in effect that they might convict if they found that the defendant committed either act. The court should have restricted the jury to a consideration of the act which prosecutrix testified was committed by defendant in April. The jury, or some of its members, may have believed the evidence of the prosecutrix as to the act alleged to have been committed in September, and disbelieved the testimony as to what occurred in April, and yet be justified in convicting under this instruction. This view of the law is clearly within the rulings of this court in State v. Pruitt, 202 Mo. l. c. 52, and State v. Palmberg, 199 Mo. 233. The State was not confined to the date charged in the information. ' The evidence for the State tended to prove that the offense charged was committed in April, and the instruction should have restricted the consideration of the jury to the testimony as to that offense. The other instructions were in due form and fair to the defendant. Of them he can make no just complaint.

IY. The defendant urges, finally, that the evidence does not sustain the-verdict. We cannot usurp the province of the jury. The story of the prosecutrix, improbable as it is in many respects, if believed, makes a case for the jury.

We cannot allow this verdict to stand; nor may we, on the other hand, properly say that the case shall not be submitted to another jury, under proper rulings oh testimony and proper directions as to the law.

For the errors pointed out in this opinion the judgment is reversed and the cause remanded.

Ken-wish, P. J., and Broivn, Jconcur.