author: FARIS, J.

text:
    THE STATE v. JOE MASSEY, Appellant.
    Division Two,
    June 3, 1918.
    1.INFORMATION: Clerical Errors. Clerical misprision in the information, such as omitting the word “did” where it is plainly understood, or writing “make” for “made” or “State” for “statute,” being such errors as the reader will readily detect and instantly correct, is saved by the Statute of Jeofails, which forbids the Supreme Court to hold invalid any defective indictment or information wherein the defect “does not tend to the prejudice of thé substantial rights of the defendant upon the merits,” and is not fatal error.
    2. -: Defect Not Assigned. It is the statutory duty of the appellate codrt to notice a fatal defect in an information, if obvious, although not called to the attention of the court in the brief of defendant’s counsel.
    3. -: Robbery: Omission of ‘the Words “Against His Will.” An information attempting to charge the crime of robbery which falls substantially to allege that the taking of the property was against the will of the person robbed is palpably bad. The statute is declaratory of and defines robbery in the terms of the common law, which required such an allegation to be made in the indictment. But it is not absolutely prerequisite that the set and fixed phrase of the statute “'against the will” be employed, if words of equivalent meaning and import are used.
    4. -: -: -: Equivalent lyords: By Force. An information charging robbery which did not in words allege that the defendant took the property “against the will” of the person robbed but did allege that he took it “by force and violence to” said person, was not fatally defective, for the word “force” means "power exerted against will or consent.”
    6. TESTIMONY OF ACCOMPLICE: Cautionary Instruction. Where most of the material facts to which the accomplice testified were shown by other witnesses, it was not reversible error to refuse to give a cautionary instruction as to the weight to be given to his testimony. The rule is analogous to that relating to a conviction upon circumstantial evidence, which is: if all the evidence upon which a conviction is bottomed is circumstantial, it is error to refuse to give a cautionary instruction as to the manner of weighing such evidence; but if conviction is not sought on circumstantial evidence alone, it is not error to refuse to give the instruction. [Distinguishing State v. Woolard, 111 Mo. 1. c. 256.]

      6.KOBBEBY: Instruction: Omission of Word Feloniously. In a robbery case, it is not necessary that the instruction require that the assault was “felonious” or that the taking of the property was “feloniously done.” Especially is the omission of these words not error where the instruction requires the jury to find that the property was taken by defendant “with the intent at the time to wrongfully take and carry away and to convert the same fraudulently to his own use and to deprive the- owner thereof permanently without his consent.”
    7. -:-: No Evidence: Misdirection. If there is no evidence, either that defendant assaulted the person robbed or that he took from him the property of which he was robbed, but there is positive evidence that it- was done by others, it is error to tell the jury that they must find that both the assault and taking were done by defendant before they can convict him. But where the facts and circumstances in evidence make it a question whether defendant did actually assault the person robbed and did actually assist the two other persons present in robbing him, such an instruction is not error.
    8. -: -: ’ Non-direction: Accessory: Not in Motion for New Trial. But whether there was reversible non-direction, in that the court neglected to submit the question of whether defendant was an accessory to the assault and robbery, committed by the other robbers, or was present as a mere spectator, innocent of any unlawful intent to commit a crime, is not in the case, if no such complaint of non-direction is in the motion for a new trial. But, nevertheless, the form of an appropriate instruction to meet such a situation is set out in the opinion.
    9. IMPEACHMENT: By State of Own Witness. The admission in evidence of an information, offered by the State, showing that a witness for the State had been charged with the same robbery, and the conviction of said accomplice, is not an error of which defendant can complain, since its tendency was to impeach the State’s witness. >
    10.-: Records of Conviction: Offered by Both Sides. The defendant cannot complain that the State offered in evidence the court records showing the indictment and conviction of one of its wit- ■ nesses, if the defendant himself offered the same records.
    11. -: -: No Proper Objection. The court record showing the conviction of a witness for the defendant of a crime may always be offered for purposes of impeachment. Besides, the objection to the record should properly specify the reasons for its incoin-petency.
    12.. -: -: Offered Before Witness Testifies. The admission in chief of proper rebuttal testimony, while irregular, is not reversible error. The assignment that the State, prior to the time the defendant’s witness testified, offered in evidence the títmrt record showing that said witness had pleaded guilty to the identical robbery for which defendant is being tried, is without merit, though the irregularity is not commended.
    13. -: -: -: Query.. Whether or not the admission in evidence of the plea of guilty and record of conviction of said witness, offered by the State, would have been reversible error, if said witness had not later been offered by defendant, is adverted to, but not decided, because said witness was offered by the defendant and testified.
    Appeal from Pemiscot Circuit Court. — Eon. Sterling E. McCarty, Judge.
    Affirmed.

      B. A. McKay and Ward & Reeves for appellant.
    (1) The information in this case does not charge that the defendant “made an assault” or “did make ■an assault” and the information is insufficient. Sec, 4530, R. S. 1909; State v. Calbert, 209 Mo. 280. (2) John Cidius was the main star witness ,for the State, not jointly indicted with the defendant, hut under an indictment for the same offense, and the court, over defendant’s objections, permitted the introduction of the information against Citius, the State’s own witness, and' this was prejudicial error to the defendant. State v. Reavis, 71 Mo. 419. (3) Over the defendant’s objections and exceptions the State introduced the record showing the trial, the swearing of the jury, the names of the jurors, the verdict- of the jury and conviction of one Willie Sharp of the same offense for which the defendant was being tried, and this was shown as a part of the State’s case in chief, and Willie Sharp was not a witness for the State, had not taken the stand, but it had been shown in evidence that he was in company with the defendant and John Citius the night of the robbery. “Even where two persons are jointly indicted for a felony, the conviction of the principal is not a condition precedent to the conviction of the accessory, or vice versa.” State v. Anderson, 89 Mo. 312; State v. Phillip & Eoss, 24 Mo. 483; State v. Eeavis, 71 Mo. 419. “The judgment of conviction of one jointly indicted or of an accomplice or principal is incompetent against the defendant at bar.” People v. Bearss, 10' Oal. 68; State v. Crank, 23 Am. Dec. 117; Kelly’s Criminal Law (3d Ed.), see 47, pp. 46-47. (4) • Instruction 1 does not require the assault to he felonious or the taking of the property to be feloniously done; leaves it to the jury to find that the defendant took the gold watch and $10 in money, when the State proved that the watch was taken by Citius, and there was no testimony that the defendant took any of the property. Instruction 2 is erroneous, for the following reasons: (a) Because it refers to the information for the jury to find what property was taken, if any. State v. Wilcox, 179 S. W. 479, 1. c. 481 '(Mo. Sup.). The information does not require the assault to have been felonious. The court erred in refusing to give a cautionary instruction on testimony of an accomplice. (5) It is reversible error to refuse to instruct the jury that the testimony of those aiding and abetting and encouraging in a crime should he received with great caution by the jury, and they should not convict on such testimony unless satisfied of its truth. State v. Jones, 64 Mo. 391; State v. Woolard, 111 Mo. 256; State v. Harkens, 100' Mo. 672; State v. Chyo Cheagk, 92 Mo. 413¡.
    . Ftamh W. McAllister Attorney-General, and Thos. J. Cole, of counsel, for respondent.
    (1) The information does not contain un allegation that the property was taken from E. P. Adkins ‘ ‘ against his will,” but it is charged that the property was taken from Adkins, “by force and violence to the person of said E. P. Adkins,” and therefore the omission of the statutory phrase ‘ ‘ against his will, ’ ’ does not render the information insufficient. People v. Eiley, 75 Cal. 98; State v. LaChall, 28 Utah, 83; State v. Patterson, 42 La. Ann. 934; State v. Presley, 91 Miss. 381; Acken ,v. Commonwealth, 94 Pa. 284; State v. Kegan, 62 Iowa, ■106; State y. Wilson, 136 La. 345; Chauncey v. State 12'4 S. W. (Texas) 426; Anderson v. State, 28 Ind. 22; Terry v. State, 13 Ind. 70; State v. Parr, 103 P'ac. (Oregon) 436. (2) The information is not insufficient because it states that defendant “make an assault” instead of “made an assault.” Sec. 5115, R. S. 1909; State v Morehead, 195 S. W. (Mo.), 1043; State v. Griffin, 249 Mo. 627; State v. Duvenick, 237 Mo. 194. (3) Admission in chief of evidence which is proper in rebuttal is a mere irregularity ,and is not reversible error. Hays v. State, 40 Md. 649; Brister v. State, 26 Ala. 127; Lawson v. State, 20 Ala. 78; Nuckolls v. College of Physicians and Surgeons, 94 Pac. 81; Bliss v. Waterbury, 131 N. W. 732; Page and Jones v. Barry, 73 So. 22; Brownell v. Moorehead, 165 Pac. 410. (4) The trial court did not instruct the jury as to the value of accomplice testimony, although requested to do so by defendant’s counsel. The failure to give such instruction is not reversible error. Diggs v. United States, 220 Fed. 552; Solander v. People, 2 Colo. 66; Cheatham v. State, 67 Miss. 344; State v. Haynie, 19 N. C. (2 Dev. & Bat.) 390; Commonwealth v. Clune, 162 Mass. 214; Johnson v. State, 2 Ind. 655; Commonwealth v. Wilson, 152 Mass. 14; State v. Porter, 42 Yt. 505.
   FARIS, J.

On the 26th day of March, 1917, the prosecuting attorney of Pemiscot County filed in the circuit court of that county his duly verified information charging defendant herein with the crime of robbery in the first degree. Upon his trial defendant was found guilty and his punishment assessed at imprisonment in the Penitentiary for a term of five years. Prom the resulting sentence .defendant has appealed.

The facts shown in evidence tend to prove that defendant, together with John Citius, Willie Sharp- and an unknown man decoyed one E. P. Adkins (who had been drinking and was at the time under the influence of liquor, if not actually drunk) out of a saloon in the town of Caruthersville, and robbed him of a watch, watch-chain, and some money, aggregating in value, as it averred in the information, the sum of $34.

Defendant was not jointly charged with Citius and Sharp in this robbery, but was separately indicted. Citihs and Sharp, as the record discloses, were jointly indicted for the robbery of Adkins. Sharp had, it seems, theretofore been tried and convicted, and Citius had pleaded guilty, and upon the trial of defendant Citius testified for the State.

There was much other evidence, both direct and circumstantial, in the case, outside of that given by the accomplice Citius, but for ease of statement we shall refer in detail to his story of the circumstances of the robbery, as well as to his statement of the facts which led up thereto. Defendant, together with Sharp and Citius, and numerous others, were, as stated, in a saloon with Adkins. The latter was drunk. He had invited the usual aggregation of bystanders to join him in a drink, in paying for which he had exhibited some money. Thereupon defendant, according to the story of his accomplice Citius, said to the latter and to Sharp, that he, defendant, would entice Adlcins out of the saloon, and take him down the street, and that Citius and Sharp could follow after them, catch up with them and the three of them would get Adkins’s money. Upon the pretense of showing Adkins a rooming house, which defendant averred he owned, or was running, he took Adkins by the arm and led him out of the saloon. Almost instantly thereafter Citius and Sharp followed them out. After going with Adkins, holding the latter by the arm, for a distance of some two blocks or more, defendant released Adkins, and almost immediately thereafter Adkins was struck, knocked down, and for a moment seemingly rendered unconscious. While he was down, defendant, assisted by Citius, vtook from his person the property set out in the information.

Shortly afterward Adkins returned to the saloon and'made complaint that he had been robbed. Defendant also came back into this-saloon and was accused by Adkins of having assisted in the robbery'. Upon the trial of the case Adkins testified that while he was down someone was heard coming, and defendant suggested that the approaching party be held up with a pistol, and that immediately after his property was taken defendant ran off.

Defendant testifying for himself denied any participation whatever in this robbery, but swore that Sharp and Citius committed the robbery without any assistance from him or from anyone else. He swore that he thought Sharp struck Adkins, and that Sharp then drew a gun and ordered him (defendant) to “stay out of it.” One witness for defendant testified that he was with defendant on the night of the robbery and that defendant had no conversation whatever with either Citius or Sharp. The latter, however, testifying for defendant, admits having a conversation with the defendant a short time before the robbery, but denies that this conversation had anything to do with the robbery. The reputation of the defendant, as well as that of many of the witnesses, was shown to be bad.

Such further facts as tend to make clear the points we find ourselves compelled to 'discuss will be set forth in the opinion in connection with that discussion.

I. Defendant complains that the information upon which he was tried and convicted is bad, for that it does not charge that an assault was made upon the prosecuting witness. Omitting merely formal parts, which are conventional, this information reads thus:

“Now comes C. E. Bragg, Prosecuting Attorney within and for the County of Pemiscot, who in this behalf prosecutes for and in the name of the State of Missouri, and upon his official oath informs on or about the -day of March, 1917, at and within the county and State aforesaid, one Joe Massey, in and upon E. P. Adkins, unlawfully land feloniously malee an assault and one gold watch of the value of twenty dollars, one gold watch-chain of the value of three dollars, one pocket knife of the value of one dollar and ten dollars of good and lawful money of the United States, and of the aggregate value, thirty-four dollars, the property of E. P. Adkins, then and there from the person of and by force and violence to the said Adkins, feloniously did rob, steal, take and carry away, contrary to the form of the State in such cases make and provided, and against the peace and dignity of the State of Missouri.”

It is plain that the pleader by a mere clerical misprision, either omitted the word “did” before the phrase “make an assault,” or he wrote “make” where he intended to write “made.” In either event the error is one which the reader of the information readily detects and is readily and instantly able to supply. Such condition being obvious we do not think we ought to condemn the information as being fatally bad. We think it is saved by the Statute of Jeofails which forbids us to hold invalid any defective indictment or information wherein the defect extant “does not tend to the prejudice of the substantial rights of the defendant upon the merits.” [See. 5115, R. S. 1909; State v. Duvenick, 237 Mo. l. c. 194; State v. West, 202 Mo. 128 ; State v. Griffiln, 249 Mo. l. c. 627; State v. Morehead, 195 S. W. 1043.]. It follows that this specific contention of fatal badness, must be overruled. Obviously, the .patent clerical errors in the contra formam staiuii clause of the information are likewise cured by the Statute of Jeofails, supra.

This information is, however, subject to another serious criticism, not called to our attention in the brief of defendant’s learned counsel, but one which, being obvious, we think we should notice, and one which, if the defect prove to be fatal, it is our statutory duty to notice. This criticism is bottomed upon the novel departure in criminal pleading which led the learned prosecuting attorney to omit to charge in the set phrase and language of both the statute and the common law, that the taking of the property of the prosecuting witness from the person of the latter was “against his will.” The common law required such an allegation to be made in the indictment, and our own statute, which is declaratory of the common law and which defines robbery in the terms of the common law (State v. Broderick, 59 Mo. 310), likewise contains this language. Any information attempting to charge the crime of robbery which fails substantially to, allege that the taking of the property was against the will of the person robbed would be palpably' bad. F!or obviously no person can be robbed, when he consents to or acquiesces in the taking of his property. There must be apt words in the information which negative the idea of consent, or acquiescence. Unless the information before us contain such, it is bad and cannot be upheld. For the pertinent language of our statute is: “Every person who shall be convicted of feloniously taking the property of another from his person, or in his presence, and against his will, by violence to his person or by putting him in fear of some immediate injury to his person; . . . shall be adjudged .guilty of robbery in the first degree.” [Sec. 4530, R. S. 1909.]. The information in the case charges, it will be noted, that the property was taken from the person of E. P. Adkins, “by force and violence to the said Adkins.” The statute does not contain’ the word “force” which we find used in the information, but does contain the word “violence.” The noun “force” means “power exerted against will or consent.” [Webster’s Dictionary.] So, if the property was taken from the prosecuting witness by force, of necessity it was taken by the exercise of power, operating against the will of him who was robbed. It could not have been taken by force without being taken against the will of the prosecuting witness. While it is held, both at common law and under statutes defining robbery, with a uniformity which is 'almost universal, that the indictment must charge that the taking of the property is “against the will” of the person robb.ed, the cases hold and the text-books likewise lay down the rule that it is not an absolute prerequisite that the set and fixed phrase of the statute or of the common law be used to negative the fact of consent; that any other word or words which clearly allege that the caption of tlie property taken was had without the consent of the person robbed, is sufficient. [People v. Riley, 75 Cal. 98; State v. LaChall, 28 Utah, 80; State v. Patterson, 42 La. Ann. 934; State v. Presley, 91 Miss. 377; Acker v. Com., 94 Pa. 284; State v. Kegan, 62 Iowa, 106; State v. Wilson, 136 La. 345; Chancey v. State, 124 S. W. 426 ; Anderson v. State, 28 Ind. 22; State v. Parr, 103 Pac. (Ore.) 434 ; 2 Bishop Crim. Proc. 1006; 34 Cyc. 1805.] While the information is not in a form to he either followed or commended, we are constrained to hold that it is not fatally defective.

II. It is also urged that the learned trial court erred in i*efusing to give the usual cautionary instruction on the weight to he given by the jury to- the testimony of one Oitius, an alleged accomplice, w^° testified for the State. The only case in this State, which either the diligence of learned counsel for defendant or our own researches have found for us, and which holds that such failure is reversible error, is the case of State v. Woolard, 111 Mo. l. c. 256. In the above case, at the page cited, Judge GrANTT, said:

“The court clearly erred in refusing defendant’s fourth instruction. While a jury may convict upon the uncorroborated testimony of an accomplice, it is clearly the duty of the court to caution them in regard to- such testimony. T¡he impeachment of the witness, Alf. Brown, in this case, was so overwhelming, in- addition to his being an accomplice, it was peculiarly incumbent on the trial court to caution the jury in regard to convicting, the defendant, for so grave- an offense, upon his uncorroborated evidence. ’ ’

From this excerpt facts appear, we think, which distinguish the Woolard case from ,the instant one. There the accomplice had been “overwhelmingly impeached.” Moreover, the case was one wherein the conviction could not have been obtained, absent the testimony of the accomplice, that is, but for this testimony the State could not have gotten the case to the jury. Here, in tire instant case, practically every fact to which the witness Citrus testified was shown by other witnesses in the case, save and except as to what was said by defendant to his alleged ¡accomplices in a whispered conversation in which others saw defendant and these accomplices engaged, just prior to defendant’s inveigling the prosecuting witness out of the saloon to the place where he was robbed. The prosecuting witness testified to facts which, if believed by the jury, showed that' defendant aided- and assisted in this robbery. In short, in this case the testimony of the accomplice is merely cumulative; for the direct and circumstantial evidence adduced in corroboration thereof wa,s in our view sufficient within itself to take the case to the jury. So, however much fairer it might have been to have given this instruction as prayed, we do not think upon the facts béfore us that we ought to hold the failure to give the cautionary instruction to be reversible error. In taking this view we acquiesce in the rule stated in the Woolard case, but distinguish that case from the case at par upon the respective- facts.

In a case wherein so large a part of the testimony upon which the conviction is bottomed comes from an accomplice, as that without such testimony the conviction could by no means be upheld, it might well constitute reversible error to refuse to give such cautionary instruction. But that is not this case. The rule we here adhere to is in all respects similar to tüe rule many times announced by us in the precisely analogous case of a conviction upon circumstantial evidence. In such a case, if all of the evidence upon which a conviction is bottomed is circumstantial, it is error to refuse to give the jury a cautionary instruction as to the manner of weighing such evidence. [State v. Donnelly, 130 Mo. l. c. 649.] But if a conviction is not sought on circumstantial evidence alone, it is not error to refuse to give the cautionary instruction as to the manner in which siuch evidence should be weighed. [State v. Bobbitt, 215 Mo. 10; State v. Crone, 209 Mo. 316; State v. Donnelly, 130 Mo. 642; State v. Robinson, 117 Mo. l. c. 663; State v. Mosley, 102 Mo. 374.]. We think there can be no doubt as to the precise analogy existing between the two propositions, and that a similar rule should prevail. For these reasons we are constrained to hold that the contention should be disallowed.

III. It is further contended that the court failed to require the jury, in and by instruction one given sua sponte, to find that the assault was felonious and ^le taking of the property was feloniously done. This instruction does require the jury to find that the property was taken by defendant “with the intent at the time to wrongfully take and carry away and to convert the same fraudulently to his own use and deprive the owner thereof permanently without his consent.” Moreover, we said in the case of State v. Rader, 262 Mo. l. c. 133, after a careful examination of this whole question, this:

“Even in prosecutions for robbery in the first degree, on all-fours by analogy both in the respect that a larceny is committed ordinarily and that the statutes defining it likewise use the word ‘feloniously,’ we find no such invariable ride. On the contrary, the general rule is in robbery as in ordinary cases, that feloniously need not be used in the instruction, or if used that it need not be defined. [State v. Woodward, supra; State v. Cantlin, supra; State v. Rowland, supra.].”

IV. Blut touching this instruction, it is further and most seriously contended thfa.t in the very face of the evidence that both the assault upon the prosecuting witness and the taking of his property from bis person were done and committed by persons other than defendant, this instruction yet unequivocally tells the jury that they must find that such assault and such taking of the property were actually done by defendant himself before they can find him guilty. This, contention is borne out by the instruction which plainly so charges. The instructions in a criminal ease must be bottomed upon the facts shown by the evidence adduced therein. If there were no proof, either that defendant assaulted the prosecuting witness, or that he took from the latter’s person any of the property of which such witness was robbed, then this, contention must be sustained and the case reversed. [State v. Johnson, 111 Mo. 578.] But the evidence of Adkins is that very shortly before he was struck and knocked down, the defendant, who had theretofore had hold of his arm, turned him loose, and that he w;as struck from the side on which defendant was walking. Adkins does not say, or seem to know who struck him; nor does any other witness in the case; the testimony of Citius. is that defendant assisted in going through the pockets of Adkins, but - there is no specific or definite proof as to which one of these parties actually found in Adkins’s pockets and stole the several articles which the proof shows were taken therefrom. These facts and circumstances made It a question for the jury whether the defendant did not actually assault Adkins and actively assist in- robbing him, and the learned trial court was. upon the facts fully warranted in submitting, this theory to the triers of fact, and there was no reversible mis-direction in the -case. Whether there was reversible non-direction, in that the court neglected to submit to the jury the question whether defendant was merely an accessory to an assault and robbery committed, as to all the physical facts, by others whom he was merely aiding and abetting, is not in the case, because defendant does not complain of any such non-direction in his motion for a new trial.

It may well be that the facts proven called for the giving of instructions running substantially thus:

“If, upon a consideration of all of the facts in the case in the light of the instructions given you by the court, you find and believe that on or about the-day of March, 1917, at the County of Pemiscot and State of Missouri, John Citius, Willie Sharp, and an unknown man, or either of them, did make an assault noon one E. P. Adkins, and that said John Citius, Willie Sharp, and said unknown man, or either of them did by violence to bis person and against his will take from the person of him,, the said Adkins, one gold watch, one gold watch-chain, one pocket knife and ten dollars in lawful money of the United States, or any part of said above-named articles, with the intent at the time wrongfully to take and carry away and fraudulently to convert said articles or any of them to their own use and" to deprive the owner thereof permanently without his consent, and that said articles were the property of said E. P. Adkins, and were of any value, and if (having found the above facts), you further find and believe that defendant was then and there present aiding, abetting and encouraging-in any way, or by any means, the commission of such assault and larceny (if any), you should find the defendant guilty of robbery in the first degree, as he stands charged; otherwise, ,you should acquit the defendant.
‘ ‘ The court instructs the jury that every person who is present ¡at the commission of a felony, aiding, abetting, assisting or encouraging the same, by words, gestures, looks or signs, is in law deemed an aider and abettor, and is liable as a principal. But on the other hand, mere presence at the commision of a felony, or other wrongful act, does not of itself render a person liable as a participator therein; if he is only a spectator, innocent of any unlawful intent touching such felony, and does not aid, abet, assist or encourage those who are actors therein, he is not liable ¡as a principal or other-, wise.” [State v. Cantlin, 118 Mo. 100.]

But, as this point is not raised in a manner calling for review, we are not called on to consider it.

V. It is strenuously urged that it was error to permit the State to offer in evidence the information which had been filed against John Citius, who is designated in the brief of defendant’s learned counsel as the “star witness for the State,” and that like error occ"arred i11 allowing the State to put in evidence the record of conviction of Willie Sharp, a witness for defendant, for his participation in the robbery of the prosecuting witness. Both of these contentions are untenable. While it is difficult to see why the State desired to offer against its own witness the information which showed that he was charged with being an accomplice in the robbery of Adkins, it is yet impossible to see wherein defendant was hurt thereby. Its tendency was to impeach Citius, who was a witness for the State. Surely, defendant could not complain of this. Besides, defendant himself offered the record of the conviction of Citius. So, upon this ground, if for no other, he cannot be heard to complain.

Upon the other ground of complaint, that error occurred in permitting the State to show the record of the conviction of Willie Sharp, for this identical robbery, it is sufficient to say that the conviction of a witness of a crime may always be shown by the adverse side as a matter of impeachment. Here the plea of not guilty, the names of the trial panel and the verdict of the jury were all contained in a single record entry, which was offered as an entirety. If this record was incompetent, it was so for a reason not remotely mentioned in defendant’s objection thereto, which objection was in substance merely that the record was not binding upon the defendant and that it had no tendency to prove either his guilt or innocence.

Neither is. there uny merit in the suggestion now made (which’ likewise was not urged in the original objection) that while impeachment testimony might have been competent after Sharp had testified as a witness, for defendant, it was not competent prior to the giving of such testimony. The admission in chief of proper rebuttal testimony while an irregularity and while the custom is not one which ought to be followed, should not be held to be reversible error. We have held th'at such an irregularity is not error meet for reversal (State v. Beedle, 180 S. W. 888), and such a rule seems to have met with approval in other jurisdictions. [Hays v. State, 40 Md. 633; Brister v. State, 26 Ala. 107; Nuckolls v. College, etc., 94 Pac. 81; Bliss v. Waterbury, 131 N. W. 731; Brownell v. Moorehead, 165 Pac. 408.] Obviously, to characterize as reversible error the admission of proper and competent evidence merely because such evidence had gone to the triers of fact a day, or an hour, or even a minute before it should have gone to them in the orderly progression of the trial, would be to adhere to an extreme refinement of technicality, wholly out of keeping with the modern tendency to achieve justice, through, over and across such refinements. Therefore, we are constrained to disallow this contention. If Sharp had not been offered as a witness by defendant and thus became liable to impeachment as •a witness, by the State, the offering of the record of his conviction might . have been error. There is some authority in other jurisdictions for this view. [People v. Bearss, 10 Cal. 68.] But the latter point is not in the case. We will pass on it in this jurisdiction when we reach it.

If the jury saw fit to believe the witnesses, and the result indicates somewhat conclusively that they did, the evidence is ample to sustain the conviction. •

No errors of sufficient moment to call for a reversal of the case being called to our attention, it must be affirmed. Let this be done.

All concur.


source: Caselaw Access Project

author: WALKER, P. J.

license: Public Domain

text:
    ELLEN E. WYNNE, Appellant, v. WAGONER UNDERTAKING COMPANY.
    Division Two,
    June 3, 1918.
    1. MOTION FOE NEW TRIAL: General Assignment: Instructions. An assignment in the motion for a new trial that “the court misdirected the jury as to the law of the case’’ is entirely too general to authorize a review of the instructions.
    2. -: -: Pieced Out by Inference. The court will not interpolate words in the motion for a new trial except in case of evident inadvertent omission. It will not piece out the motion by adding words thereto.

      3. -: Complaint of Non-Appearing Instructions. If the motion for a new trial complains of instructions designated as being of certain numbers, and no instructions bearing those numbers appear in the record, a review of them is impossible.
    4. NEGLIGENCE: Humanitarian Doctrine: Instruction. The fundamental principle of the humanitarian doctrine is the failure of the alleged wrong-doer to exercise ordinary care to avoid injury when the peril of the injured party has been discovered or by the exercise of ordinary care might have been discovered. Therefore, Where plaintiff had stepped off of the curb and had taken one or. two steps into the street when she was struck by defendant’s automobile, being driven at a speed of eight miles per hour, and the evidence was that it would have been impossible to change the course of the machine after her peril was or might by ordinary care have been discovered in time to avoid striking her, the court committed no error in withdrawing from the jury, by the instructions, a consideration of that doctrine.
    5. INSTRUCTION: No Evidence to Support Issue: Withdrawal. If there is no evidence to support an allegation of the petition it is not error to withdraw it from the jury, by the instructions.
    Appeal from St. Louis Circuit Court. — Hon. George H, Shields, Judge.
    A.eitrmed.

      Frank G. O’Malley for appellant.
    (1) Instruction 1 given for defendant is an unnecessary comment on the evidence, injects an issue not pleaded in defendant’s answer, ignores the issue of thé last-chance doctrine and is in direct conflict with the instructions given for the plaintiff. Aronson v. Ricker, 185' Mo. App. 529; Ostermeier v. Implement Company, 255 Mo. 128; Crossin v. Chicago Great Western Ry. Co., 180 S. W. 454. (2) Instruction 2 given for defendant is in conflict with the instructions given for the plaintiff, ignores the last-chance doctrine and imposes the duty on plaintiff to absolutely protect herself and the absolute .duty to see approaching vehicles when under the law she was only obliged to use ordinary care. Carradine v. Ford, 195 Mo. Aipp. 684; Groom v. Ca.vanagh, 97 Mo. App. 362; Bongner v. Zeigenhe-in, 165 Mo. App. 342; Hodges v. Chambers, 171 Mo. App. '563. (3) Instruction 3 given by defendant ignores the issue of. the last-chance doctrine, is in conflict with the instructions given' for plaintiff and ignores the duty cast upon defendant to use the highest degree of care under the circumstances. Gases cited above. (4) Instruction 4 given for the defendant was improper for the reason that there is no evidence to support it. There is no room for any accident theory in this case. The injury was the result of either the negligence of the defendant or the negligence of the plaintiff, or both. Zeis v. St. Louis Brewing Association, ' 205 Mo. 638; Beauvais v. St. Louis, 169 Mo. 500; Lagarce v. Mo. Pac. Ry. Co., 183 Mo. App. 70. (5) Instruction 1 given of the court’s own motion should not have been given. There is nothing in the testimony to support the theory that' any witness had committed perjury., Keeline v. Sealy, 257 Mo. 498.

      Arthur N. Sager, Robert E. Moloney and Paul U. - Farley for respondent.
    (1) Assignment of error number 5 is not subject to review here, because the record shows no exception to the instruction complained of. Kolokas v. Mo. Pae., 223 Mo. 455; Berkbiegler v. Cape Girar-deau & C. R. Co., 164 Mo. App. 441; Montague Compressed Air Co.' v. City of Fulton, 1661 Mo. App. 11; Smith v. Means, 170 Mo. App. 1581; Budde v. United States Incandescent Light Co., 193 Mo. App. 157. (2) Assignments of error 1 to 4 are not subject to review here because errors, if any, in giving instructions are mere- matters of exception only preserved when properly covered by motion for new trial by being specified therein in appropriate terms. The record shows this was not- done. Jackson v. Bolt & Nut Co., 141 S. W. 1128; Montague Compressed Air Co. v. City of Flilton, 166 Wo. App. 11; K C. Disinfectant. & Mfg. Co. v. Bates Co., 273 Mo. 300'. (3) The last-chance rule is not available to plaintiff in this case because not pleaded in petition. Knapp v. Dunham, 195 S. W. 1068. (4) And proof fails to make- case under this rule. Keele v. Railroad, 258 Mo. 79 ; Dey v. Railroad, 140 Mo. App. 467; McGee v. Railroad, 214 Mo. 543.
   WALKER, P. J.

This is an action for personal injuries alleged to have Been received by plaintiff in having been run over by an automobile owned by defendant and in charge, at the time, of one of its servants engaged in the master’s business.

Defendant is a corporation.

On February 20, 1912, plaintiff, a young woman about eighteen years of age, was en route to her home in St. Louis. The day was stormy and a, heavy snow was falling. Plaintiff had reached the intersection of Vandeventer and 'Laclede Avenues, and was about to cross the latter, having made one or two steps from the curb for that purpose, when she was struck by defendant’s automobile, which was running at the speed of about eight miles per hour.

In view of the disposition we are compelled to make of this case on account of the condition of the record, a fuller statement of the facts is not essential, except to refer to same in discussing the assignments of error, which will be done when necessary.

The errors complained of are confined to the instructions. Four of these, designated numerically, were given for the plaintiff; and six, numbered in like order, were given for the defendant. The court of its own motion gave two instructions; one, in regard to the credibility of witnesses, and the other as to a numerical verdict.

The motion for a new trial in regard to these instructions is as follows:

“7. The court misdirected the jury as to the law in the case. •
“8. The court’s instructions numbered 1, 2, 3 and 4 are wholly inconsistent with and contradictory to tlie instructions numbered 5, 6, 7, 8, 9 and 10 and had a tendency to confuse and puzzle the jury.
“9. The court improperly refused to give instructions asked for by the plaintiff as indicated in instructions numbered 7, 8, 9 and 10 in the group of instructions marked ‘Refused by the Court.’
“10. The court hy the instructions expressly carried the case outside of the law, known as the ‘humanitarian law,’ while the pleadings call for the submission of the case on that theory.
.“11. Instruction number 5 given for and at the request of the defendant is framed on a theory of the defendant, which was not in any way supported by the evidence, ' and is in direct contravention of the rule under the ‘humanitarian law.’ ”

The seventh ground of the motion is entirely too general to authorize a review of the instructions. In K. C. Disinf. & Mfg. Co. v. Bates Co., 273 Mo. 300, we held an assignment of error in a motion for & new trial insufficient which1 provided that: “The court refused proper declarations of law offered by plaintiff.” In Wampler v. Railroad, 260 Mo. 464, 190 S. W. 908, in the principal and dissenting opinions, a review of the history of Section 1841, Revised Statutes 19091, will be found, which requires motions for new trials to specify the reasons on which they are based. This case seems, from its reasoning, to hold that a general statement in a motion for a, new trial as to errors in instructions is sufficient, but it will be found that the motion in that case, while general in its terms, so far as ignoring the numbers of the instructions are concerned, is specific in referring to each and all of those to which objections are interposed, and therefore, it was not general in the sense in which such motions have been ruled insufficient in other cases; which is not the fact in the instant case. In Stid v. Railroad, 236 Mo. l. c. 397, the ground of the motion for a new trial as to the instructions was that “the court erred in giving each of the instructions given at the request of the plaintiff.” While this motion was in general terms, as in the Wampler case, it was specific, in regard to each instruction objected to. Its approval, therefore, was not in disregard of a reasonable compliance with' Section 1841, supra; nor was it at variance with well-considered earlier or later cases. P'rom all of which it is evident that the seventh ground of ■ plaintiff’s motion for a new trial does not authorize a review of the instructions.

If the eighth ground of the motion for a new trial is to be construed according to its words, it must be held to have reference to instructions given by the court on its own motion. We find, however, that no such instructions as are there designated were thus given. What was evidently meant was, that instructions numbered 1, 2, 3' and 4, given at the request of the plaintiff, were inconsistent, etc., with instructions numbered 5, 6, 7, 8, 9 and IQ, given at the request of the defendant. Only six instructions, however, were given at the request of the defendant, and these are not' in conflict with the four given at the request of the plaintiff. We are not required to interpoláte words in a motion for a new trial except in cases of evident inadvertent omission. Our rulings on this subject have been exceedingly liberal, as indicated by the cases we have cited. Prompted 'by • these rulings, we have endeavored to so construe the eighth ground of plaintiff’s motion for a new trial as to preserye errors relative to the instructions, but we are unable to do so unless we piece out the motion by the addition of words not appearing therein. This would necessitate a resort to inference which would not comport with a review required to be confined to the record.

No such' instructions are preserved in the record •as are designated in the ninth ground of the motion for a new trial, namely, numbers 7, 8, 9 and 10, stated to have been “marked refused by the court.” A consideration of same is, therefore, not possible.

The 10th ground of the motion for a new trial, is that defendant’s instructions withdrew from the consideration of the jury the “humanitarian doctrine.” The automobile 'was moving at about eight miles per hour in a1 heavy fall of snow. Plaintiff stepped off the curb and took one or two steps into the street when she was struck and injured. The driver saw her, but too late to avoid striking her by the exercise of ordinary care. He and the witness, who was in the machine with him, state that it would have been impossible to change the course of the machine after they saw the plaintiff, sufficiently to avoid striking her. This, on account of her stepping into the street almost immediately in front of the machine. This proof is not sufficient, therefore, to sustain a right of recovery under the “humanitarian doctrine,” the governing principle of which is the failure of the alleged wrong-doer to exercise ordinary care to' avoid injury when the peril of the injured party has been discovered, or which, by the exercise of ordinary care, might have been discovered. [Kellny v. Railroad, 101 Mo. 67; Meyers v. Railroad, 59 Mo. 223; Karle v. Railroad, 55 Mo. 476.]

The eleventh ground of plaintiff’s motion for a new trial complains of an instruction given for defendant, which, it is alleged, withdraws from- the consideration of the jury plaintiff’s right to recover under one of the allegations of her petition charging the negligence of the defendant in having intrusted the use of, the automobile to an incompetent person. There was no evidence upon which to base this contention. Aside from this, the assignment was not preserved in a manner to authorize a review of same.

From all of which it follows that the judgment of the trial court must be affirmed, and it is so ordered.

All concur.


text:
    R. C. DUNLAP, Administrator, et al., Appellants, v. I. S. HART et al.
    Division Two,
    June 3, 1918.
    1. PARTIES: Interest in Land: Administrator as Plaintiff: Not Raised at Trial. The point that the administrator of the deceased claimant is not a real party to the suit to establish an interest in the land and therefore has no standing in court, if not raised by demurrer or specific answer in the trial court, will not be ruled on appeal.
    2. WILL: Subsequent Sale of Devised Land: Ademption: Title of Dev-isee to Other Land Purchased. A devise by the owner of specific lands to his wife, a subsequent sale by him of those lands and a purchase, with the proceeds of the sale, of other lands, did not. pass the title of the lands so purchased to her, but there was an ademption of the devise, 'and there being no residuary clause in the will the subsequently acquired lands passed by inheritance to his heirs.
    3. -: Revocation by Sale. Both by common law and the statute a sale of all the property devised operates as a revocation of the will in toto, and a sale of a part of the devised property operates as a revocation pro tanto.

    4. -: Intention: Sale of Lands Devised to Wife. Unless the will contains a residuary clause declaring that all of testator’s property should pass by the will, or there is some other clause in the will expressly relating to the matter, it cannot be held that it was the intention of the testator that lands acquired by him after making his will should pass to his wife in lieu of those specifically devised to her but sold by him at. the time or prior to acquiring the others, for the will does not express any such intention.
    5. -. Presumption of Testator’s Intention to Devise All Property. The presumption that a testator does not intend to die intestate as to any part of his property, applicable to throw light upon the testator’s intention when that intention is dark and is to be ascertained from the language used, is not to be invoked to illuminate a condition arising long after the will was written. It is inapplicable as a guide in determining whether by a perfectly plain will, by which testator devised specific lands to his wife, which he subsequently sold, other lands bought with the proceeds were devised to her by the will in lieu thereof.
    6. -: Construction: Operation. The language of a will is to be construed in the light of the circumstances existing when it was written. The will operates upon the property existing at the time of testator’s death.

      Appeal from Buchanan Circuit Court. — Row. Charles E. Mayer, Judge.
    Affirmed.

      Culver & Phillip for appellants.
    (1) Though- William B. Hart did not own the DeKalb property or the eighteen acre tract in Buchanan County involved in this controversy at the time he executed his will, he did own it at the time of his death. Real property acquired after the execution of a will may pass under the will in this State, Liggatt v. Hart, 23 Mo. 127; Applegate v. Smith, 31 Mo. 166; Webb v. Archibald, 128 Mo. 299; 40' Cyc. 1045’. (2) The “polar star” in the construction of a will is the intention of the testator. McCume v. Goodwil, 204 Mo. 337; Gannon v. Rank, 200 Mo. 85’. (3) The presumption is that a testator does not intend to die intestate as to any part of his property; and a will should he construed to dispose of all his property, if it is susceptible of such construction; and for the purpose of ascertaining and expressing the intent of the testator, words and sentences in the will may be transposed, added or omitted. Mc-Mahan v. Hubbard, 217 Mo. 637; Meiners v. Meiners, 179 Mo. 614; Durboraw v. Durboraw, 67 Kan. 139; Simmonds v. Cabanne, 177 Mo. 353; Briant v. Garrison, 150 Mo. 655; Nichols v. Bothwell, 103 Mo. 151; RoBards v. Brown, 167 Mo. 447; Farisli v. Cook, 78 Mo. 212; Webb v. Archibald, 128 Mo. 299. (4) Ordinary technical rules for construction of wills should be disregarded when they conflict with the intention of the testator. Weed v. Jennings, 45 Mo. 91; Suy-den v. Trayer, 94 Mo. 48; Drake v. Crane, 127 Mo. 85. (5) The will of William B. Hart devised and bequeathed all of the testator’s property to his wife. The description of the real estate contained in the will was not intended as a limitation of the devise, but only as a description of the real property the testator owned at the time he executed the will. Durboraw v. Durboraw, 67 Kan. 139.

      Javies W. Boyd for respondents.
    (1) Appellants say that real property acquired after the execution of the will, may pass under the will. In the cases cited 'by the appellants the wills devised all the real estate of the testator. There is no such provision in the will of William B. Hart. (2) If we consider the intention of William B. Hárt in this case he never intended to devise the property mentioned in the petition. He lived many years after the will was made, and after he sold the real1 estate mentioned therein. If he had desired to will the property mentioned in the petition he had many years in which to do so. (3) In the case of Durboraw v. Durboraw, refered to by the appellants, the testator used the following language: ‘ ‘ Second. I hereby devise and bequeath to my grandson, Alexander Dur-boraw, all my real and personal property of every description and wherever situate.” (4) No case has been cited by the appellants which would authorize the court to insert in Mr. Hart’s will, lands-other than those therein described. There is no residuary clause in the will.
   FARIS, J.

-This is a suit to determine interest in two certain tracts of land situate in Buchanan County. On the trial, the court found in favor of defendants and adjudged them to be the owners in fee of the disputed lands. Plaintiff thereupon appealed.

Plaintiff R. C. Dunlap is the administrator cum testaviento1 ann.exo, of one Susan C. Hart, deceased; the other plaintiffs are the residuary legatees of said Susan 0. Hart. Defendants are the heirs at law of one William B. Hart, deceased, who was the husband of the said Susan. William B. Hart executed his will in 1891, and died in 1906. By the terms of this will he gave all of his personal property and two specifically described parcels of real property to his wife, Susan 0. Hart. But sometime during the fifteen years which elapsed between the execution of liis will and his death, he sold and conveyed the land which the will specifically describes, and subsequently purchased the two tracts of land now here in controversy. It is not proven, but merely'to be inferred as probable, that, the lands in dispute were purchased with the proceeds of the lands described in the will. The whole controversy turns, therefore, upon the terms of, and the effect to be given to, the will of William B. Hart. This will is brief, and barring the formal parts, signatures and attestation of witnesses, all of which are conventional, it reads thus:

“1. I give and bequeath to my beloved' wife, Susan C. Hart, all of my real estate in fee simple and all appurtenances thereto belonging and described as follows: Ninety-six and 22-100' acres of land in the northeast quarter of Section No. three in Township fifty-five, of Range thirty-six; also forty-three acres of land at the southwest corner of the southeast quarter of Section No. thirty-four, of Township No. fifty-six, of Range No. thirty-six, all of said land being in Buchanan County and State of Missouri.
“2. I also give and bequeath to my beloved wife, Susan C. Hart, all of my personal property — household and kitchen furniture, beds and bedding, money, notes and all of my personal effects of every kind and description.
“3. I do hereby appoint my said beloved wife, Susan C. Hart, the executrix of this, my last will and testament, and I hereby direct that she shall not be required to give bond by the probate court.”

Susan C. Hart died in 1913, testate, and by the terms of her will she devised all of her personal and real property (which plaintiffs contend includes the lands here in dispute) to the plaintiffs, except Dunlap. She named as executor of her will one James R. Miller, and provided that he should sell all of her real and personal property and divide the proceeds thereof as elsewhere in her will provided. Prior to the death' of Susan C. Hart said Miller departed this life, and plaintiff R. 0. Dunlap was by the probate court duly appointed administrator cum testamento annexo of her estate.

The single question in the case and that which is decisive of it, is whether the will of William B. Hart had the effect to devise to Susan G. Hart, his wife, the real estate which he acquired after ^-e had sold all of the real estate whicli he devised to her by specific description. If it did, the judgment nisi is erroneous and must be reversed.

On the threshold, we may say in passing, some vague point is made by respondents that Dunlap as administrator has no standing in court as a plaintiff; for that he is not a rea.1 party in interest, no part of the title here sought to be determined 'being, it is averred, in him. We need not concern ourselves about this contention, since if Dunlap is not a. necessary party this question ought to have been raised by demurrer or specifically by answer. It was not raised by demurrer, or anywhere else in the pleadings, and so defendants cannot be heard now to raise it here for the first time; even should we find ourselves compelled for another reason to reverse the case. ■

Did the language which we quote from the will of William B. Hart pass to his wife, by devise, the lands of this testator which he subsequently acquired after the sale of the .lands specifically described and devised to her in the will? We do not think so.

There can be no doubt but that the will of William B. Hart (hereinafter called, for the sake of brevity, the testator), devised specific lands to his wife. We quote the whole pertinent parts of the will and from this will the fact of specificness of devise conclusively appears. We think there was an ademption of the devise, when the testator before his death conveyed away the land devised. From which it follows that the subsequently acquired real estate of testator passed by inheritance to his heirs.

The rule at common law (pursuant to the Statute 32 Henry VHI., however, rather than to the common law strictly speaking) was that a will spoke as of its own date and not as of the date of the death of the testator, and therefore after-acquired lands could not even he the subject of a devise by will, whatever might be the intent of the testator touching such lands. [In Re Miller, 128 Iowa, l. c. 616; Liggat v. Hart, 23 Mo. l. c. 134.] This harsh rule has been modified in England by statute, 1 Vic., ch. 26, and by statute in most of the states of the American Union. Absent an examination into the legal history of our own enactments on this point, it is a little difficult to appreciate that we, too, have changed this rule. The statute in this State by which a, testator was given the • power to devise after-acquired real estate was passed in 1807. [Laws of Territory of Louisiana 1807, ch. 39, sec. 18, p. 131.] . It changed the English' rule and gave the power of disposition of after-acquired lands by providing in substance that any person of full age could devise by will all real estate then owned, or which he might have at his death. In the revision of 1835, seemingly in an effort to’ retrench and reform by the excision of words deemed surplusage, the words “which' he or she hath, or at the time of his or her death shall have” were omitted, and the statute was made to read subsequently as it now appears (Cf. Sec. 1, p. 617, R. S. 1835; Sec. 535, R. S. 1909) but conferring the power upon a testator to devise by last will “all his estate, real, personal and mixed, and all interest therein.” The Act of July 4, 1807, first above referred to, further provided that the judges of all orphan’s courts and all others concerned in the “execution of any last will” should have due regard to the direction of the will and to the true intent and meaning of the testator in all matters brought before them. [Sec. 48, p. 137, Ter. Laws Mo.] In the Revision of 1825, this language was changed to read “all courts,” and so, in substance has the command to construe a. will by the “four corners” ever since remained. [Cf. Sec.

24, p. 796, R. S. 1825; Sec. 583, R. S. 1909.] While Section 538, Revised Statutes 1909, provides the manner in which a will ,may be revoked, we are of opinion that the latter section refers to revocation in toto, though it forbids, as well, revocation by interlineation (absent republication and reattestation) or by word of mouth: We do not think that any statute in this State has had the effect to change the rule at common law, governing revocation by a sale of the devised property. [Cozzens v. Jamison, 12 Mo. App. 452.] This rule was that a sale of all of the property devised operates as a revocation in toto (Baacke v. Baacke, 50 Neb. 18; 30 Am. & Eng. Encyc. Law, 652; Ametrano v. Downs, 170 N. Y. 388; Brown v. Thorndike, 15 Pick. 407; Hawes v. Humphrey, 9 Pick. 361; Worrill v. Grill, 46 Ga. 482; Webster v. Webster, 105 Mass. 538), and a sale of a part of the devised property operated as a revocation pro tanto. [Moore v. Spier, 80 Ala. 129; Warren v. Taylor, 56 Iowa, 182; Forney’s Estate, 161 Pa. St. 209; Emery v. Union Society, 79 Me. 334; Graham v. Burch, 47 Minn. 171; Wells v. Wells, 35 Miss. 638; In Re Miller, 128 Iowa, 612.]

Strictly speaking, and on the theory that the will, perforce the statute, speaks from the death of the testator, it is obviously not entirely accurate to speak of a failure of the will to pass specifically devised property, because such property has been theretofore disposed of, ás a revocation of the will. But since such devise fails because of the fact that when the will becomes effective, the testator had no property within the terms of the gift, the disposal of the property prior to death operated as a revocation in toto, or pro tanto, according as the whole or only a part of the property was disposed of by the testator before his death1. The failure of the devise by a sale, is in the nature of an ademption of the devise, which ademption,, if it shall by a sale or disposal extend to all the property of the testator, obviously operates as a revocation. In the case of Ametrano v. Downs, supra, it was said: “If a testatrix devises real estate and sells the same 'before the will takes effect, the proceeds of the sale will become personal estate and no court can substitute the money received by the testatrix for the land devised.”

Speaking of this latter point and to others cognate, the Supreme Court of Iowa in the case In Ee Mailer, supra, at page 617, said:

“The conveyance of the subject of the devise operates as a revocation of the will to the extent of the property thus disposed of. [Warren v. Taylor, 56 Iowa, 182. See, also, cases cited in 30 Am. & Eng. Ency. Law (2 Ed.), 622, 623.] On the theory, .however, that the will speaks from the death of the testator and with reference to his estate as it may then exist, it is perhaps not strictly accurate to speak of the result as a ‘revocation’ but the devise fails because, when the will becomes effective, the testator has no property within the terms of the gift. [Warren v. Taylor, 56 Iowa, 182; McNaughton v. McNaughton, 34 N. Y. l. c. 204.] It is equally well settled that upon sale of devised real property by the testator the proceeds of such sale of which he may die possessed will not be substituted for the property itself, unless a direction so to do is found in the will. [Adams v. Winne, 7 Paige, 97; Gilbert v. Gilbert, 9 Barb. 532.]”

But it is ably argued that the well-settled rule (enjoined upon us by the statute itself), of construing a will according to the true intent of the testator compels us to hold that the subsequently acquired lands passed by the will in lieu of those specifically devised but sold by the testator before his death. We do not thinly the statute • nor the rule stated and bottomed on the statute requires us to go so far. If such was in fact the intention of the testator, we agree that the common law has been so far changed as to have permitted the use of a residuary clause by the testator explicitly declaring that all his property, without description or reservation, should pass by the will; but as we have seen there is no such clause. And so the difficulty we meet upon this contention is, that the will made does not express the intent urged on us.

In a case similar, if not on all-fours with the instant one, it was held by the Supreme Judicial Court of Maine that where a testator devises real estate and subsequently conveys it to a person other than the devisee, the devise thereby becomes impliedly revoked, and in such case, the proceeds of the sale, absent a specific provision in the will so declaring, do not go to that devisee, but to the residuary legatee. [Emery v. Union Society, 79 Me. 334.] And the above case was so ruled, although the rule of construction according to the true intent of the testator ivas fully recog-nised as being in force in Maine.

This precise point is a matter of first impression in this court, so far as our own researches, or those of counsel in the case, have enlightened us. For they have cited us no local cases in point, nor have we been able to find any precisely apposite. Discussing, however, what we consider the principles involved, it was held by the St. Louis Court of Appeals that the alienation of devised property by the testator in his lifetime renders the will pro tanto void, notwithstanding our statute providing the methods of revoking wills. [Cozzens v. Jamison, 12 Mo. App. 452.] In this case the learned St. Louis Court of Appeals, at page 457, said:

“The doctrine runs through all the cases, lhat the devisor must be seised of the same estate at the time of his death that he was seised of when he made his will, to make it a good devise. [Ballard v. Carter, 5 Pick. l. c. 116.] If there is a subsequent conveyance of the whole estate, the testamentary disposition is defeated wholly. If the conveyance be of a part only, the operation in pro tanto. [Toll. Ex. 19.]”

The case of Durboraw v. Durboraw, 67 Kan. 130, is urged as being precisely in point. We cannot agree to this suggestion. There was in that case what we regard as a fairly plain residuary clause. In fact, the case rodex off upon this very point. For the Supreme Court of Kansas in effect ruled that all of the property passed by what was tantamount to a residuary clause. Hence, in our view the Durboraw case has no compelling’, or even appealing, relevancy to the vexing question confronting us in the case at bar.

The presumption that a testator does not intend to die intestate as to any part of his property ,is also urged as a reason why we should hold that the after-acquired property passed by this will. We. recognize and concede the rule urged. [McMahan v. Hubbard, 217 Mo. l. c. 637.] But we think it has no application to the condition presented. The proper function of the presumption invoked is to throw light upon the intent of the testator when that intent is dark and it is sought to ascertain it from the language used in the will. Such a presumption performs but a negligible office when invoked to illuminate a condition arising long after the will was written, and which originated wholly dehors the words of the will and years subsequent to the execution thereof. In such case it would seem that since the thing done was tantamount to and operated as a revocation pro tanto, the latter intention is as easily to be inferred from the facts as the former. That the presumption arises in an effort to construe the language used in the ivill in the light of the circumstances existing when the will was written, seems obvious from the reason given for invoking it at all; for it is said that the presumption is used in order “that the instrument'may not perish and the manifest intent of the parties be not defeated by the palpable error of the scrivener.” [McMahan v. Hubbard, supra.] Here there is no suggestion that the scrivener did not write'exactly what the testator intended should be written. If the conditions had not changed years afterwards the language of the will was in all things clear and sufficient. The difficulty is not that the language does not express the intent which was in the mind of the testator when he made the will; the difficulty lies in the fact that years after-wards the testator changed his mind. The language of a will is to be construed in the light of the circumstances existing when the will is written; the will operates^ however, upon the property existing when death occurs.

We conclude that the learned trial court took the proper view of the case and that the judgment ought to be affirmed. Let it he so ordered.

All concur.


author: WILLIAMS, J.

text:
    THE STATE v. LEE WOODS, Appellant.
    Division Two,
    June 3, 1918.
    1. EVIDENCE: At Former Trial: No Objection. Where at the time certain portions of the transcript of the evidence at a former trial were offered by the State defendant made no objection, and when asked by the court if he desired to offer any part of the remainder of the transcript his counsel replied, “I don’t want to offer any part of it,” he is in no position on appeal to complain that the court refused to permit his counsel to read to the jury certain portions of the transcript of his testimony on the former trial.
    2. -: Accidental Homicide: Self-Defense. Where the defense is accidental homicide in scuffling for a knife, and there is no evidence of self-defense in the case, it is not error to exclude testimony to the effect that deceased had been in the habit of carrying a knife, since such evidence is not material to any issue involved.
    3. -; -; -; violent Character: Particular Acts. Where the defense is accidental homicide, testimony that on a prior occasion deceased stabbed the defendant is not admissible. Even if self-defense is an issue and evidence as to the violent and dangerous character of deceased would therefore be admissible, particular acts of violence are not admissible to prove such character.

      i. -: Motive: Suit for Divorce. Testimony that a short time before the homicide of a wife she had instituted divorce proceedings against defendant is admissible to show motive for the killing.

      5. -: Former Conviction. In the trial of a defendant for murder the record of a justice of the peace showing the conviction for assault and battery of a person of the same name as that of defendant, without first requiring proof as to the identity of the person convicted, is not incompetent evidence. Identity of names is prima-facie proof of identity of person.
    6. INSTRUCTION: Defendant as Witness. The court did not err in refusing to instruct the jury at defendant’s request “that they have no right to disregard the testimony of the defendant on the ground alone that he is the defendant, and stands charged with the commission of a crime. The law presumes the defendant innocent until he is proven guilty, and allows him to testify in his own behalf, and the jury should fairly and impartially consider his testimony, together with all the other evidence in the case; and, if from all the evidence, the jury have any reasonable doubt as to the defendant’s guilt, they should give him the benefit of the doubt and acquit him.” Under the doctrine of State v. Finfeelstein, 269 Mo. 612, such an instruction would he an improper comment upon the testimony of defendant.
    Appeal from Buchanan Circuit Court. — Hon. W. H. Utz, Judge.
    Affirmed.

      James C. Growney for appellant.

      Frank W. McAllister, Attorney-General, and C. P. Le Mire, Assistant Attorney-General, for respondent.
    (1) There was substantial evidence on which to base the verdict. It finds the appellant guilty of murder in the first degree as charged in the information and assesses his punishment at life imprisonment in the penitentiary. It is sufficient. State v. Concelia. 250 Mo. 424; State v. Rumfelt, 228 Mo. 44-3; State v. Sharp, 233 Mo. 298. ' (2) The trial court permitted the State, over the objections and exceptions of appellant, to introduce in evidence questions and answers from the transcript of testimony of the accused at a former trial of the same case for the purpose of contradicting or impeaching the accused as a witness in his own behalf. Such evidence was admissible for the purpose of impeachment, hence the appellant’s objections thereto were without merit. Underhill on Crim. Ev. (2 Ed.), secs. 65, 238; State v. Eastabam, 240 Mo. 248; State v. Carter, 259 Mo. 357. (3) Evidence' of a prior assault upon the defendant by the deceased and that deceased was in the habit of carrying k pocket knife was properly refused. Had self-defense been pleaded this evidence might have been properly admitted, but self-defense is no issue in this case. The appellant relies on the plea of accidental killing. State v. Privett, 175 Mo. 207; State v. Edwards, 203 Mo. 528; State v. Fitzgerald, 130 Mo. 407; Kelley’s Crim. Law and Proc. sec. 249; Underhill’s Crim. Ev. (2 Ed.), secs. 324-5 ; 21 Cyc. 407. (4) The appellant also complains of the action of the trial court in permitting the State to offer in evidence, for the purpose of impeachment, the record of the conviction in a. justice of the peace court of one Lee "Woods of assault and battery. Under the rule established in this State identity of names is prima-facie evidence of identity of person, and said record was properly submitted to the jury. State v. Sovern, 225 Mo. 591; State v. Blitz, 171 Mo. 530; State v. Court, 125 S. W. 451; State v. McGuire, 87 Mo. 642; State-v. Kelso, 76 Mo. 505; State v. Moore, 61 Mo. 276. .(5) The trial court did not err in permitting the State to show that deceased had filed suit for divorce against the appellant just prior to the killing. This evidence had a tendency to show motive and therefore was competent. State v. Bobbett, 215 Mo. 10; State v. Gregory, 178 Mo. 48 ; Burns v. State, 57 Ind. 46-52. (6) Instruction E requested by the appellant was-propeily refused. It' singles out the accused as a witness and comments on the weight to be attached to his testimony. State v. Finkelstein, 269 Mo. 612.
   WILLIAMS, J.

Defendant was convicted of murder in the first degree in the circuit court of Buchanan County and was sentenced to life imprisonment. He has duly perfected an appeal to this court.

Tlie evidence upon tlie part of the State tends to establish, the following facts:

Defendant killed his wife about 1 a. m. July 15, 1916, at 2608 Delaware Street, St. Joseph, Missouri. Defendant and his wife, both colored, were united in marriage in September, 1915, and separated about March, 1916, the wife at that time going to the home of Mjrs. Wilson, where she resided until the time of her death. On June 29, 1916, the deceased instituted a divorce suit in the circuit court of Buchanan county.

On the night of the tragedy the deceased, in company with other members of the Wilson household, attended a church festival, returning to the Wilson home about 12:30 a. m. Shortly thereafter defendant knocked at the door of the Wilson home and asked to see his wife. She stepped out on the porch and after conversing with defendant for a few minutes both returned into the house and continued their conversation in the front room. Mrs. Wilson and her daughter were in the dining room immediately adjoining the front room. A visiting colored minister had retired for the night in another part of the house.

Shortly after defendant and his wife came into the house scuffling was heard, and the deceased, with her hand to her throat and blood streaming therefrom, immediately rushed into the dining room, in the presence of Mrs. Wilson and her daughter. Mrs. Wilson testified that defendant pursued his wife, grabbed her, threw her on the cot and cut her throat with a knife. The daughter corroborates the testimony of' her mother, except that she did not see the defendant use the knife. Defendant went back into the front room, and Mbs. Wilson’s daughter accosted him, saying, “Oh! Lee! What did you do that for?” Defendant made no reply, but departed from the house leaving his ha,t lying under the table. The wife died in a few minutes.

The coroner arrived about 1:10 a. m. and found the wife dead, with a cut on her neck and throat extending from ear to ear. The cut severed the “carotid artery and the jugular vein.” There was also an additional small scratch, on lier throat. The main wound was jagged and hád the appearance of being accomplished with' one stroke of the knife.

About five o’clock a. m. on the morning of the tragedy a police officer, having read the account of the killing in the newspaper, immediately went to the house where defendant was rooming. Looldng in at the window, the police officer saw defendant asleep and awakened him by rapping on the window- pane. Defendant arose and permitted the policeman to enter. In answer to the questions of the policeman the defendant admitted that he had been ont to call on his wife that morning and that they had had some trouble and he thought he had cut her on the shoulder. The bloodstained knife with which the cutting was done was lying upon a table in the room; one of defendant’s hands had a slight cut across the palm, which had been bandaged by the defendant; the policeman told the defendant that his wife was dead, but the defendant appeared to be unable to believe it. On direct examination the police, officer testified that defendant said that the knife in question was his knife, but upon cross-examination the witness stated that he was not positive that the defendant had made that statement. The defendant was then placed under arrest and taken to the jail.

The colored minister testified that he saw the defendant sitting on a platform in front of the church where the church festival was being held about nine p. m'. on the night in question. A. justice of the peace record, showing one Lee Woods to have been convicted of- assault and battery in the year 1914, was introduced in evidence.

The evidence upon the part of the defense tends to establish the following facts:

The reputation of the deceased for “peace, quietude and morality” was bad. The reputation of defendant as a peaceful, law-abiding citizen was good.

Defendant in his own behalf testified that after his wife went to live with Mrs. Wilson she visited his Louse one or two days each week; that she was vicious and quarrelsome, causing their separation; that about 10:30 on the night in question he went to the Wilson home to see his wife; that prior thereto he had agreed with his wife to either let her return to his home or to pay her expenses for a visit to her mother in Iowa'; he found no one at home when he first' arrived, and waited until midnight, at which time Mrs. Wilson and the members of the Wilson household, including the visiting minister and an escort of Miss Wilson, returned from the church, but his wife was not with them. He was informed by them she had gone to the home of Mrs. Walters; defendant in company with Fred Barnes walked to a near-by cigar store for cigars and procured change for a ten-dollar bill; defendant then went to the Walter’s home and inquired for his wife; on learning that she had gone to the Wilson home, he also returned to the Wilson home, arriving there about 12:3'0 a. m.; as he approached the house he looked through the window and saw his wife and Conser Walters standing in the front room; he knocked on the door, asked his wife to come out, and there told her that since she was going with Mr. Walters and not living right he was not going to take her back or give her money to visit her mother. They then went into the house, and continued the conversation. His wife asked him to give her seven dollars to make the trip to Iowa,; she opened her purse in order to show him that she had no money. After site opened the purse she took a knife therefrom and attempted to cut defendant with it; that he grabbed her hand and they struggled for possession of the knife; that he finally got hold of her wrist, reaching over her shoulder from behind her, and pulled her Hand up over h'er shoulder until she dropped the knife; that he then released his wife, and she rushed into the adjoining dining-room and lay down on the cot; that he walked to the dining-room door and saw his wife on the cot, and saw some blood on her shoulder and thought it had come from his hand, which had been cut in tbe struggle; that .as he went to the dining-room door Miss ‘Wilson said, “Don’t.you see me undressed; what in the world is the matter with you? I am ashamed of you.” He thereupon left the house, went to his home, bandaged his injured hand and went to sleep. He denied that he left his hat at the Wilson home or that' he was at the church on the night in question, and denies that he intentionally strucK his wife with the knife. He also denied that he was ever convicted of assault and battery or that he had ever threatened to cut his wife’s throat.

Appellant has not favored us with a brief. We will discuss the points raised by the motion for a new trial.

I. A mere reading of the foregoing statement of facts will at once disclose that appellant’s contention that the verdict is not supported by the evidence must be disallowed.

II. The further point is made that the court erred in refusing to permit counsel for defendant to read to the jury pages 3, 4/and 5 of the transcript of defendant’s testimony given upon a former trial, and a^so erred in permitting counsel for the State to read to the jury any portion of said transcript.

Concerning this point it is sufficient to say that at the time certain marked portions of this transcript were offered in evidence by the State the defendant made no objection thereto, and when asked by the court if he, defendant, desired to offer any part of the remainder of the transcript the defendant’s counsel replied, “I don’t want to offer any part of it. ”

It further appears that the portion which defendant ’s counsel desired to read to the jury was never offered in evidence. There is therefore no basis for an assignment of error in this regard.

III. It is contended the court erred in excluding defendant’s testimony to the effect that the deceased had been in the babit of carrying a knife. • The defense was accidental homicide. T-he issne of self-de-^ense n°t the case. Such evidence was, therefore, not material to any issne involved. Error was not committed by its exclusion. [State v. Fitzgerald, 130 Mo. 407, l. c. 434.]

Neither did the court err in excluding the testimony 'of defendant that on a prior occasion the deceased stabbed the defendant. Even where self-defense is an issue and evidence as to- the violent and dangerous character of the deceased is admissible, particular acts of violence are not admissible to prove such character. [State v. Jones, 134 Mo. 254, l. c. 262; Kelly’s Criminal Law & Practise (3 Ed.), par. 249.]

IV. The court did not err in permitting the State to prove that deceased had instituted divorce proceed-against defendant a short time before the killing. This evidence was admissible on the theory that it tended to show a motive for the killing. [Wharton on Homicide (3 Ed.), p. 926.]

Neither did the court err in admitting the justice of the peace record showing the conviction of one Lee Woods without first requiring proof as to the identity of the person convicted. The identity of names was prima-facie proof that it was the same person. [State v. McGuire, 87 Mo. 642.]

V. No matter of error is properly saved concerning the instructions which were given by the court.

The only one of defendant’s refused instructions which had not already been covered by the instructions given was Instruction E, which is as follows:

“The court instructs the jury that they have no right to disregard the testimony .of the defendant on the ground alone that he is the defendant, and stands charged with the commission of the crime. The law presumes the defendant innocent until he is proven guilty, and the law allows him to testify in his own behalf, and the jury should fairly and impartially consider his testimony, together with all the other evidence in the case; and if, from all the evidence, the jury have any reasonable doubt as to the defendant’s guilt, they should give him the benefit of the doubt, and acquit him. ’ ’

Under the doctrine of the case of State v. F'inkel-stein, 269 Mo. 612, the above instruction ,was an improper comment upon the testimony of the defendant, 'and its refusal did not constitute error.

The judgment is affirmed.

All concur.


author: FARIS, J.-

text:
    THE STATE v. CARL RILES, Appellant.
    Division Two,
    June 3, 1918.
    1. CARRYING' PISTOL: When Intoxicated: Sufficiency of Evidence: Evasive Witnesses. The evidence in this case, detailed by evasive, equivocating and shuffling witnesses for the State, is reviewed, and held sufficient to sustain a conviction of defendant of the charge of having in his possession when intoxicated a dangerous and deadly weapon. ,*
    2. -: -: Necessity of Showing Pistol Was Loaded. In the trial of a defendant upon the charge of having in his possession when intoxicated a dangerous and deadly weapon, it is not necessary for the State to show that the pistol or firearm, carried concealed, or carried while accused is intoxicated, or exhibited by him in a rude, angry and threatening manner, is loaded, in order to make out a prima-facie case; and where the evidence shows that defendant, while drunk or drinking, entered a store, threw down a pistol on the counter, together with some cartridges, and called for soda, and there is no countervailing testimony, the giving of an instruction telling the jury that it is not material to constitute the offense charged whether the proof showed the pistol to have been loaded or not is not error.
    3. EVIDENCE: Exhibiting to Witness Grand Jury Testimony. Where the attitude of the State’s witnesses is hostile or evasive, and warrants a refreshing of their memories, it is within the sound discretion of the trial court to permit the prosecuting attorney to exhibit to them copies of their testimony before the grand jury, for the purpose of refreshing their memories.

      4. ARGUMENT: Remarks of Prosecuting Attorney. Language of the prosecuting attorney in his argument to the jury that but follows the relevant and competent testimony of the witnesses, or draws from such testimony such inferences as are fairly deducible therefrom, is not improper.
    Appeal from Pemiscot Circuit Court. — Hon. Sterling H. McCarty, Judge.
    Affirmed.

      J. S. Gossfom for appellant.

      Frank W. McAllister, Attorney-G-eneral, and C. P. Le Mire, Assistant Attorney-General, for respondent.
    (1)The evidence was sufficient to sustain the verdict and this court has held that such verdict will not be disturbed. State v. Maurer, 255 Mo. 168 ; State v. Barton, 214 Mo. 321; State v. Chenaúlt, 212 Mo. 137. (2) A pistol is a firearm within the meaning of the statute, even though same may be unloaded. But, under the evidence in this case, even though the aforesaid statement were not true, still the appellant would be guilty for the reason that it is shown conclusively that the appellant had cartridges for said pistol in his possession and placed said pistol, together with cartridges therefor, on the counter before him upon entering the store in question. State v. Morris, 263 Mo. 351; State v. Sebastian, 81 Mo. 514; State v. Larkin, 24 Mo. App. 410; Eedus v. State, 82 Ala. 53; State v. Tapit, 52 W. Va. 473; Commonwealth v. Murphy, 166 Mass. 171. (3) It is a well-settled rule of law that the memory of a witness may be refreshed by the use of written instruments, memoranda, or book entries. Hence there can be no reason why a witness may not be permitted to refresh his memory from the transcript of his former testimony. But even if this were not true the appellant was not prejudiced in this case, for the reason that none of the answers contained in the notes shown the witness, were read to the jury or introduced in evidence in any manner whatsoever. State v. Miller, 234 Mo. 597; State v. Kennedy, 154 Mo. 268; State v. Mathews, 88 Mo. 125; Kelley’s Crim. Law & Prae., sec. 373. ',(4) The remarks of the prosecuting attorney were not sufficiently offensive to require a rebuke, hence there was no reversible error here. State v. McMullin, 170 Mo. 682; State v. Rasco, 239 Mo. 580; State v. Wana, 245 Mo. 562.
   FARIS, J.-

-Defendant was convicted in the circuit court of Pemiscot County upon the charge of having in his possession when intoxicated a dangerous and deadly weapon. He was prosecuted by indictment, which indictment, in addition to the count charging him as above, also in the first count thereof charged him with carrying a concealed weapon. He was convicted on.the second count only, and his punishment assessed at a fine of one hundred dollar^. From this conviction and the judgment bottomed thereon, he has appealed.

Since one of the most serious and strenuous contentions urged is that there was not sufficient evidence to sustain this conviction, and since in connection with this point, we find ourselves compelled to discuss the evidence in the opinion, it will not be necessary to burden the case with a lengthy statement of the facts. Suffice it to say that the testimony on the part of the -State, which was all the testimony offered in the ease, tends to show that upon a day in November, 1916-, defendant, while intoxicated, came into a store of one Damon, in the village of Hayward, in said county, and walking up to a counter therein, threw down a pistol, together with some cartridges. One Cullen Downing, a bystander, who was a witness in the case, immediately siezed this pistol, and took it away from defendant’s vicinage. Considérable excitement ensued, and defendant, after repeatedly calling for this pistol, had it returned to him. A number of the witnesses, whose testimony is more at length referred to in the below opinion, testified to the above facts, as well as to the fact that defendant upon the occasion seemed to be drinking, or drunk.

At the close of the testimony for the State, defendant interposed thereto a yerbal demurrer to its sufficiency ; -which demurrer being overruled the case went to the jury without any countervailing testimony whatever on the part of the defendant.

All further facts which are necessary to make clear the contentions which we find ourselves compelled to discuss, will be .adverted to in the subjoined opinion.

I. Defendant is not represented in this court by counsel; so-, as in duty hound, we- have ourselves carefully examined the record for error. [Sec. 5312, E. S. 1909.]

The only points urged in the motion for a new trial which when examined in the light of the record seem to present debatable questions of law are: <(a) Was there sufficient evidence adduced to take the case to the jury; (b) was it error to instruct the jury that the offense charged was made out, although there was no direct proof that the pistol was loaded; (c) was it error to exhibit to the witnesses for the State for the purpose of refreshing their memories, copies of their testimony before the grand jury, and (d) were the remarks of counsel for the State so hurtful as to constitute reversible error?

Imprimis, we may observe that the witnesses for the State (none was offered by the defendant) exhibited a strange and puzzling reluctance to testify and to .answer frankly and categorically the questions propounded to them. They were without exception equivocating, evasive and shuffling. Yet, we are of the opinion that they stated facts sufficient to take the case to the jury. The issues were but two: (1) Did defendant have in his hands or on his person a, pistol, and (2) was he intoxicated at the time he thus had this pistol?

Upon the first point one Henry Burgess swore that defendant “put the thing up on the counter.” ' Being asked whether he had this object in his hand the . witness Burgess answered that he did, and being further asked if it was a pistol, he answered, "I think it was.” Again, being asked this question: “Now, did you see the pistol lying on the counter?” he answered, “Yes sir,” and continuing said that there were also cartridges on the counter. This witness also said he thought defendant was drunk at the time. On cross-examination this witness said that the object in question “looked like a real pistol” to him.

One Cullen Downing, swore that he saw a pistol on the counter near where defendant was standing, but he never saw defendant put the pistol there. Another witness said: “I saw Mr. Carl Riles come in; of course he was drinking some. He walked up to the counter and I think he called for soda or something and at the same time he throwed down something what I thought to the best of my knowledge at that time, his pistol and some shells, a handful of shells, four or five, and ■ Mr. Cull Downing grabbed it up and went off and stayed four or five minutes and Mr. Riles was calling for his gun, wanted to know what came of it, and finally Mr. Downing brought it back and gave it to him.” This witness also said that defendant appeared to be drinking.

Throughout the case the object drawn by defendant from his pocket and which he threw upon the counter was referred to by the questions as a pistol, and the witnesses answered without raising any question; or doubt that it was a pistol. The shuffling reluctance of the witnesses to testify frankly gives some color to the question now ■ raised, seemingly, as a sort of afterthought, whether the object which defendant had was in fact a pistol. Other excerpts might be set down, b.ut these would but serve to lengthen the opinion. We conclude the evidence was sufficient to take the case to the jury and to sustain the conviction upon the second count of the information.

II. The court instructed the jury substantially that it was not material to constitute the offense charged whether the proof showed the pistol to have been'loaded or not. We have no doubt of the-GOrrec^Iiess of- this proposition, in a. case such as this, wherein there is no countervailing proof upon the point. To hold that it is incumbent upon the State to prove affirmatively that a pistol which is carried concealed, or carried when the accused is ‘intoxicated, or which is exhibited in >a rude, angry and threatening manner, is loaded, as a condition precedent to a conviction would be practically to render the statute unenforceable. This is not only the view which this court has already taken (State v. Morris, 263 Mo. l. c. 351), but it is the view held in all other jurisdictions wherein the language of the statute denouncing this offense is similar to ours. [Fielding v. State, 136 Ala. 56; Redus v. State, 82 Ala. 53; State v. Tapit, 52 W. Va. 473; State v. Bollis, 73 Miss. 57; State v. Wardlaw, 43 Ark. 73; Com. v. Murphy, 166 Mass. 171; Williams v. State, 61 Gra. 417; State v. Duzan, 6 Blackf. (Ind.) 31.] We need not and do not rule whether the defendant should ever be heard in his defense to say that the pistol carried by him was neither a dangerous nor a deadly weapon, because it was not loaded and therefore could not be fired; because that question is not here involved. We content ourselves in holding that it is not necessary for the State to show that the pistol'or firearm carried concealed, or carried while the accused is intoxicated, or exhibited by him in a rude, angry and threatening manner, is loaded, in order to make out a prima-facie ease.

Exhibiting to Testimony.

III. It is charged as error in the motion for a new trial that the court permitted the prosecuting attorney to exhibit to certain witnesses for the State copies of their testimony before the grand jury for the purpose of refreshing their memories. This was not error. We held, after a somewhat exhaustive examination of the point, that this is proper and within the souhd discretion of the trial court in a case wherein the hostile or evasive attitudes of the State’s witnesses warrants such refreshing. [State v. Patton, 255 Mo. 245.] It would be difficult to find a case wherein the seemingly unfriendly and equivocating attitude of the witnesses for the State called louder for the exercise of the sound discretion mentioned, than in the one at bar. This point is overruled.

IVi. Lastly, it is s:aid that the remarks of counsel for the State in his argument to the jury were so far outside of the record as to b.e reversibly harm-fhl- We have carefully gone over the record and find that the objections of counsel for the defendant were sustained by the court in every instance, save one. In this one, the objection was that the prosecuting attorney was not warranted in saying that defendant had “got it into his head to go about the county with a pistol in his pocket.” The first count of the information charged defendant with carrying a concealed weapon. The testimony of at least one witness was that defendant had this pistol in his pocket. There could be no impropriety in the language of counsel, so long as that language but followed the relevant and competent testimony of the witnesses in the case, or drew from such testimony such inferences as were fairly deducible therefrom. [State v. Harrison, 263 Mo. 642; State v. Brown, 247 Mo. 715.]

Other matters are mentioned in the motion for a new trial, but they are either such as have no merit, or they are not borne out by the record in the case. •

Let the judgment be affirmed.

All concur.