author: KENNISH, J.

text:
    THE STATE v. SYLVESTER CHAUVIN, Appellant.
    Division Two,
    November 29, 1910.
    1. INSTRUCTION: Contradictory: Gambling Device: Using Both Disjunctive Or and Conjunction And. Where the statute forbids any person to “induce, entice or permit any person to bet or play at or upon” any gambling table, an instruction telling the jury that “unless you find that the defendant set up or kept said table, or had charge of the same, and also induced, enticed or permitted other persons to play at or upon the same, you will acquit him,” is not erroneous, since it is in harmony with the statute.
    2. GAMBLING DEVICE: Employee: Club. The law of agency is • not recognized as a defense to a criminal charge. The law deals with the person who commits the overt act, whether he be acting for himself or as an employee of another. Defendant, who in fact set up, kept and had actual control of the gambling device, cannot escape punishment because of the fact that an intangible club owned the gambling outfit and received the profits from the game and defendant was a mere employee of said club.
    3. -: -: Social. Organization: Applicability of Statute. The statute making it a felony to set up and keep a gambling device is leveled against all persons who shall set up or keep any kind of a gambling table or device. There is no exception exempting those who commit the prohibited act without having any pecuniary interest in the game; nor does it make any difference where the 'game may be set up or kept, whether in a building used for the purposes of a social organization or in the privacy of the home of the accused. A defendant cannot escape its penalties by showing that members of a social club set up a poker table on their own premises and for pastime or sport indulged among themselves in the game, for small stakes, with no eye to gain or profit to the organization, and that he as an employee of the club had charge of the table and game and received a “rake off” from each pile of chips, cashing those of the holders at the end of the game.
    Appeal from St. Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge.
    Affirmed.

      G. Orrick Bishop for appellant.
    (1) It is respectfully and earnestly urged tliat the evidence in the case fails to bring the appellant within the terms of the statute upon which the indictment is bottomed. The manifest object of this statute (R. S. 1899, sec. 2194) was to restrain and inhibit and punish those who play the arts of the gambler for their own gain and profit, in setting up and keeping (or maintaining) such devices as may tempt the unwary and the prodigal to risk his belongings upon the turn of a card and in inveigling such to “tempt their luck” with a. possible and probable result of ruin. It clearly was never intended or designed to punish, as for a felony, the members of a social organization, who, in their own premises and among themselves, as a pastime and-for what little sport there may be in it, indulge in cards for small stakes and with no eye to gain or profit to the organization. According to all the evidence of witnesses to the alleged fact, there were no inducements nor enticements held out to any person to play any forbidden game. The table, averred to be a gambling device, etc., was only such as might be found in any buffet or cafe; the cards were there, as perhaps in the majority of the dwelling houses in St. Louis; the “chips” were there also, as may also be found in many very well regulated households ; the opportunity was thus afforded to such members present, with their guests, as were inclined to sit down and play the game, which (according to these witnesses) seemed to have been played as much for amusement and entertainment as for any chance of winning. So far as the evidence shows, no person had any exclusive right or privilege to run a poker game there; the members thus playing used a table or a room for the purpose, and, according to this witness, were willing to pay something for it. “That is what the takeoff was for; I should think that is what it was for.” In all of those cases in which convictions under this section have been affirmed by this court (State v. Mathis, 206 Mo. 604; State v. McKee, 212 Mo. 138; State v. Locket, 188 Mo. 415'; State v. Hall, 228 Mo. 456; State v. Lee, 228 Mo. 480), the evidence clearly established that the accused was the proprietor and owner of the forbidden device and personally conducted the prohibited game, realizing profit and gain therefrom; setting up the table or device in secret places or locked rooms; enticing persons to come thither and engage in the game; furnishing all the incidentals and controlling and directing the operations by his personal presence, and pocketing what commissions or percentages might accrue from the hands played; and thus satisfying the requirements of the statute as to “setting up. and keeping” the game for his own profit and “inducing and enticing” others to play at and upon such devices, and accomplishing the evil which the statute was designed to prevent. Here, on the contrary, the facts were similar to those in the case of Gilmore, 98 Mo. 206. The appellant here seems from the evidence (all the State’s own evidence) to have been in no wise responsible for the presence of tables, cards or chips; nor to have had any pecuniary or other interest in the matter; was there as an employee (“he worked around there,” as the witness expressed it); and so far as permitting people to play there, he seems to have been in no position to prevent it; for if he did not serve the voluntary players, someone else would have done so, as, in fact, others did do. To convict him and punish him as for a felony in these circumstances seems monstrous. If he were guilty of any offense, upon the evidence against him, he was only guilty of a misdemeanor, under Sec. 2195, R. S. 1899, as for furnishing ‘ ‘ any money or property to any other person to be bet,” etc., and even that would be a far stretch of the statute. (2) The instructions given by the ■ court, were clearly unfair to appellant, and contradictory; in that while the jury were told that, before they could convict him of the .charge mentioned in the indictment, they must find that the defendant set up and kept the table mentioned; that the same was a gambling device, and that he induced, enticed and permitted other persons to play upon it “whilst he himself was in charge of setting up or keeping said table;” they were also told that it was not necessary to prove that the appellant owned the poker table mentioned in the indictment, and that it was sufficient if they believed from the evidence that he had charge and control of said table.

      Elliott W. Major, Attorney-General, and Charles G. Revelle, Assistant Attorney-General, for the State.
    (1) The evidence is amply sufficient to support the verdict. State v. Hall, 228 Mo. 456; State v. Mathis, 206 Mo. 604. (2) Instructions 1, 3 and 4 properly define the law, and have received the sanction of this court on numerous occasions. State v. Locket, 188 Mo. 415; State v. Lee, 228’ Mo. 480 ; State v. Rosenblatt, 185 Mo. 114. Instruction two has been directly approved in State v. Hail, 228 Mo. 456, and State v. Mathis, 206 Mo. 611. (3) Substantially every question presented by this record has received the attention of this court, and has been ruled adversely to appellant’s contentions. State v. Hall, 228 Mo. 456; State v. Lee, 228 Mo. 480; State v. Locket, 188 Mo. 515; State v. Rosenblatt, 185 Mo. 114; State v. Mathis, 206 Mo. 604.
   KENNISH, J.

On March 29, 1909, the grand jury for the city of St. Louis returned an indictment charging defendant with having feloniously set up and kept a gambling device, to-wit, a poker table. After being arraigned and entering a plea of not guilty, the defendant was put upon his trial, which resulted in his conviction, and' the' assessment of punishment at six six months’ imprisonment in the city jail. Unavailing motions for new trial and in arrest were thereupon filed, after which judgment was pronounced in accordance with the verdict, and an appeal was duly taken.

On the part of the state the testimony tended to prove that the Modern Horseshoe Club had headquarters in a three-storv building located at No. 2309' Chestnut street, in the city of St. Louis. In different rooms of this building various persons assembled and played poker for money. The games were played on tables which were kept for that purpose, and, instead of using money in the games, each person desiring to play purchased chips from the person in charge of the place, paying him money therefor. After the game was ended the chips were returned to the person from whom purchased, and the amount represented by them was paid by the “keeper” to the person by whom they were presented. While the game was in progress and on each occasion when the players held certain cards, the person in charge of the house, referred to as the “keeper,” would take from the players his “rake off,” which consisted of two chips representing five cents. Regardless of the result of the game, this “rake off” was exacted by the “keeper;” it represented his charge for the use of the table and as the keeper of the game.

From December, 1908, until February, 1909, the appellant was in personal charge of the tables used as above mentioned, and acted in the capacity of " keeper, ’ ’ selling and redeeming the chips, arranging for the games, taking the “rake off” and playing at the game himself whenever it was necessary to have a sufficient number of players for a game.

The game of poker was fully explained by an expert witness, and it was shown to be a game of chance played upon a table with cards, but we do not deem it necessary to set out in detail the evidence upon that branch of the case.

Appellant offered no evidence in his own behalf, but at the close of the evidence for the state asked an instruction in the nature of a demurrer to the evidence and directing a verdict of acquittal.

I. It is conceded in appellant’s brief that under the recent decisions of this court the indictment in this case is sufficient, and we are therefore relieved from a review of the action of the trial court in overruling the motion to quash and the motion in arrest of judgment.

II. Appellant complains that the court erred in giving of its own motion the following instructions:

"The court instructs the jury that before you can convict the defendant in this case of the charge mentioned in the indictment, you must not only find that the defendant set up or kept the table mentioned in the evidence, and that the same was a gambling device, but that he induced, enticed or permitted other persons to play upon it whilst he was himself in charge of setting up or keeping said table; and unless you find that the defendant set up or kept said table, or bad charge of the same, and also induced, enticed or permitted other persons to play uptín the same, you will acquit the defendant of the charge.
“You are further instructed that it is not necessary for the State to prove that the defendant owned the ‘poker table’ mentioned in the indictment and the evidence. If you find and believe from the evidence that the defendant, Sylvester Ohauvin, had charge and control of said table, that is sufficient; provided, you find the facts to be as required and specified in the foregoing instructions designated ‘first’ and ‘second.’ ”

As set out in appellant’s brief the first of the foregoing instructions contains the word “and” instead of the word “or” in the clause “but that he induced, enticed or permitted,” and our attention is particularly directed to that fact. An examination of the record shows that the word “or” is used in the instruction as above quoted, and in that respect it is in accord with the language of the statute and the decisions of this court; but had it been otherwise, and as stated by defendant, it is obvious that the error would have been in defendant’s favor, by placing upon the State the burden of proving more than the law required.

Although the instruction is as favorable as appellant was entitled to, yet he complains that it authorized a conviction even though the defendant was not'the owner of the table, provided that he had charge and control thereof. And it is contended that the instruction should have gone further and “told the jury that if they believed from the evidence that appellant was merely an employee, and as such not responsible for the poker game alleged to have been played nor the paraphernalia of the game and was not himself personally and directly interested in any gain or profit derived therefrom, then they should acquit him.” In other words, appellant’s contention is that if the jury believed that the intangible organization known as the Modern Horseshoe Club, owned the gambling outfit and received the profits from the game, and that the defendant was merely an employee, then the defendant should have been acquitted.

The organization, as such,, cannot be guilty of a felony, and it would not do to say that because the club owned the table and received the profits, the defendant, who in fact set up, kept and had actual control of the table, who represented the organization and acted for it, was guilty of no offense. Such doctrine would lead to such serious consequences in attempting to . enforce this statute that its unreasonableness is shown in the bare statement. The law does not recognize the doctrine of agency as a defense to a criminal charge. It deals with the person who commits the overt act, and while others may be guilty as accessories, the party committing the prohibited act is not permitted to interpose the defense that he acted only as an agent or employee. [1 Bishop’s New Crim. Law, sec. 355.]

We have carefully examined the instructions, including instruction number 2, and find that they correctly declared the law as applicable to the facts in evidence, and were fully authorized by the decisions of this court construing the same statute. [State v. Hall, 228 Mo. 456; State v. Lee, 228 Mo. 480; State v. Locket, 188 Mo. 415; State v. Rosenblatt, 185 Mo. 114; State v. Mathis, 206 Mo. 604.]

III. It is earnestly urged by distinguished counsel for appellant that the evidence failed to bring the defendant within the terms of the statute upon which the indictment is bottomed. In support of this contention it is ingeniously argued that the object of the statute (See. 4750, R. S. 1909) was to restrain and punish those who ply the arts of the gambler for their own gain and profit by setting up and keeping such devices as may tempt the unwary to part with their money, but that it was never intended to punish as for' a felony the members of a social organization who on their own premises and among themselves, for pastime or sport, indulge in the game for small stakes, with no eye to gain or profit to the organization.

It was shown by uncontradicted evidence that the defendant was in charge of the table, chips and paraphernalia by means of which gambling was carried on; that he controlled and directed the games and collected the rake off; that no person could participate in the. game unless he purchased chips in the amount of two dollars or over; that the betting at times ran as high as $14 and higher, and that the playing continued all night and frequently until daylight the next morning. One witness, who frequently participated in the gambling, when asked to describe the part taken by the defendant in the game, said: “He done like any gamekeeper would do. When he got sufficient to play he sold the chips and when it came to the jack pot, he took off two or three chips, and the chips were worth two cents and a half apiece.”

There was no substantial evidence tending, to prove that persons frequented the Modem Horseshoe. Club because of its social features. It appears that there was some kind of a roll supposed to be signed by the members, but the witnesses who admitted having taken.part in the gambling there, were uncertain as to whether or not they were in fact members of the club. They had not paid any dues or membership fees, and one of them who had visited the place regularly for a ■ number of years, when asked by counsel for defendant if he didn’t go to the club for the purpose of enjoying himself, naively answered, “We went there to enjoy ourselves and try to win.”

Under these facts there can be no doubt that the defendant with others was conducting a. common-gambling resort, and to call it a social organization where games were indulged in for pleasure and pastime is but a tbin disguise to conceal the mercenary purpose of those who were preying upon the weaknesses of their fellows. .But let it be assumed, as contended by appellant, that the defendant was not the proprietor of the place; that he was there as an employee; that he had no pecuniary interest in the table at which he presided as game-keeper, or even that the games were played as much for amusement as for the chance of winning; neither of these facts nor all of them combined would constitute a defense to the felony charged.

The statute under which the defendant was convicted is leveled against persons who shall set up or keep' any kind, of a gambling table or device. There is no exception exempting from its provisions those who shall commit the prohibited act without having any pecuniary interest in the game; nor does it make the least difference where the gambling- table may be set up or kept, whether in a building used for the purposes of a social organization or in the privacy of the home of the accused. All that is required to constitute the offense is that the defendant at the time and place mentioned set up, kept or maintained any kind of a gambling table or gambling device adapted, devised or designed for the purpose of playing any game of chance for money or property, and that he induced, enticed or permitted some person or persons to bet or play at or upon the same.

The evidence clearly established the guilt of the defendant, and finding no error in the record the judgment is accordingly affirmed.

Gantt, P. and Burgess, J., concur.


source: Caselaw Access Project

author: BURGESS, J.

license: Public Domain

text:
    THE STATE v. JOHN C. THOMAS, Appellant.
    Division Two,
    November 29, 1910.
    1. SEDUCTION: Conditional Promise to Marry. A defendant cannot be convicted of seduction whose only inducement to procure the illicit intercourse was. a promise to marry the woman if she became pregnant. It is not seduction “under or by a promise of marriage,” if the female submits to the congress in reliance upon the defendant’s special and ■ conditional promise to marry her in the event of pregnancy. If by the prosecutrix’s own statement the promise was to marry her “if he got her in trouble,” there was no seduction— especially where, even though she testified they had been engaged for a month, the only promise he made to marry her was, as she says, one made before the copulation, that he would marry her if he got her in trouble, and one made some five months later when she informed him she was pregnant. Under such circumstances a demurrer to the evidence should be sustained.
    2. -: -: Evidence of Defendant’s Willingness to Marry Prosecutrix. Testimony tending to show defendant’s willingness to marry prosecutrix, after he discovered her pregnant condition, does not tend to establish his guilt or innocence of the crime of seducing her under promise of marriage.
    Appeal from Greene Criminal Court. — Hon. A. W. Lincoln, Judge.
    Reversed.

      Val N. Mason and Hamlin S Seawell for appellant.
    The prosecutrix was not seduced, because, as shown by the evidence, the defendant had not gained her affections and her mind was polluted at the time of the first act of intercourse and when he began going with her. And before the defendant should have been convicted the evidence must have shown that he gained her affections and deceived and drew her aside from the path of virtue. State v. Reeves, 97 Mo. 668. The evidence shows that the sexnal favors in this case were for “hire or salary” and not seduction under promise of marriage. That being true the defendant should have been acquitted. State v. Reeves, 97 Mo. 668. To constitute a crime denounced by the statute under review, the female must rely on the promise of marriage and submit her person to the other party because the promise was made. The promise must be the inducement for her to consent to the intercourse. State v. Eclder, 106 Mo. 585; State v. Thornton, 108 Mo. 640. The evidence of the woman as to the promise of marriage must be corroborated. There must be some evidence independent of the principal witness as to the promise of marriage. State v. McCaskey, 104 Mo. 644.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    (1) There is not one word of testimony in this entire record which shows that “the sexual favors in this case were for ‘hire or salary,’ and not under promise of marriage,” as contended by learned counsel for appellant in their brief. Even such an inference is not justified. The proof does establish the fact that the prosecutrix was induced to have sexual intercourse with appellant by reason of the promise of marriage. That very question was sharply presented to the jury, and the jury, under the evidence, found against appellant’s contention — the jury found that the intercourse was had by reason of the promise of marriage. This court has often said that it will not weigh the testimony or the credibility of witnesses when there is substantial evidence to submit the issue in controversy to the jury and the jury has passed upon it as in this instance. State v. Fisher, 162 Mo. 171; State v. Dent, 170 Mo. 403; Wilson v. State, 58 Ga. 330'. (2) While it is true that the prosecutrix must be corroborated as to the promise of marriage, yet such corroboration may be by circumstantial evidence alone. State v. Hill, 91 Mo. 426; State v. Marshall, 137 Mo. 473; State v. Eogg, 206 Mo. 710.
   BURGESS, J.

Defendant was convicted in the criminal court of Greene county on the first count of an indictment, charging that “on the 9th day of July, A. D. 1906, at the county of Greene and State -of Missouri, under- and by promise of marriage made to one Amy Longcrier by him, the said John C. Thomas, then and there, unlawfully and feloniously did seduce and debauch her, the said Amy Longcrier, she, the said Amy Longcrier, being then and there an unmarried female of good repute and under the age of twenty-one years, to-wit, of the age of sixteen years, contrary to the form of statute,” etc. His punishment was assessed at imprisonment in the penitentiary for a term of three years. Defendant appeals and assigns error.

At the time of the trial the defendant was about twenty-two years of age, and the prosecutrix about seventeen. Both lived near Walnut Grove, Greene county, Missouri, and began “keeping company” with each other when the prosecutrix was fourteen, from which time until January, 1907, defendant called on her once or twice a week, and accompanied her' to church, socials, etc. According to her testimony, they became engaged in March, 1906, the first congress between them occurred about a month thereafter, and they continued having sexual intercourse with each other until January; 1907. As a result of this intimacy she became pregnant, and gave birth to a child on April 14,1907. It seems she only became aware of her condition in November, 1906, five months prior to parturition, and that she told the defendant about it in De'cember, 1906. He told her, as she states, “not to worry — he would see me out of it.”

On the 6th day of January, 1907, the defendant, at the request of the prosecutrix, came to see her at her home, on which occasion, after a conversation had with her father, R. L. Longcrier, the defendant and prosecutrix agreed to marry. Defendant .slept there that night, and the next day started to Springfield, in company with the girl’s father, to procure a marriage license. Defendant’s home being on the way to Springfield, he stopped at his home to make the situation known-to his father, and then proceeded to Springfield and met Mr. Longcrier in front of the courthouse. It was then after office hours, and too late to procure the license. After considerable conversation between them, defendant agreed to meet Mr. Longcrier at the courthouse next morning and secure the license. This he failed to do, but left for Oklahoma the following day. According to the defendant’s testimony, he wanted to marry the girl in a decent way, and without having it appear that he was forced 'so to do by her father; that his reason for leaving was that Mr. Longcrier, during the conversation had in front of the courthouse, threatened to kill him if he did not many the girl and treat her properly after marriage.

On January 25, 1907, about two weeks after his departure, defendant wrote to his father from Cache, Oklahoma. In that letter he said: “Pa, I wish you would find out whether those people will let me marry that girl now. I would write to them, but that old man will kill me if he finds out where I am. I will take her and live with her if she will behave herself.....I will take her away from there, and nobody will know anything here, and will take the disgrace off both families there. Let me know what those people will do at once.” Thereafter, on February 8, 1907, defendant’s father wrote to the father of the prosecutrix stating that if the girl wanted his son to many her, he would endeavor to get him to return and marry her. While testifying as a witness for the state, the girl’s father was asked whether he replied to said letter, and if so to state what he said. He answered, “I said it was no nse to marry her now, as the disgrace was on ns and in everybody’s month; that if he had done what he said he would in the first place it would have been all right.”

The defendant returned from Oklahoma on the 25th day of February, 1907, and remained at home until the 19th day of March, when he went to Colorado, and was arrested at Aspion, Colorado, the following Aug’ust, and brought to this state for trial under the charges made in the indictment.

This is a brief outline of the facts in this case: At the close of the state’s case and again at the close of all the evidence, the defendant asked for an instruction in the nature of a demurrer to the evidence, which was refused by the court, the defendant duly excepting to the court’s ruling.

We have carefully read the record in this case, and have been unable to discover any evidence to support the verdict. While the prosecuting witness did say that she “became engaged to the defendant” in March, 1906, her testimony in that regard lacks corroboration, and her own further testimony proves beyond question that there was no such engagement. Under cross-examination she testified as follows:

“ Q. In the letter you wrote to his father you used this language, ‘Caz has always promised you if he got you in trouble he would see you out of it?’ A. I did. Q. Was that the promise he made before he had intercourse? A. Yes, sir. Q. Didn’t he tell you if he got you in trouble he would marry you? A. He did. Q. Was that the only time he promised to marry you? A. No, sir. When was the other time? A. ' After I learned my condition and told him about it. Q. After the first time you had intercourse did he say, ‘If I get you in trouble I will marry you, or get you out of trouble?’ A. Said he would marry me. Q. ‘If I get you in trouble?’ Yes, sir. Q. He wasn’t to marry you if he didn’t get you in trouble? A. He said he would marry me if lie got me in this trouble. Q. And with that understanding with him — that was the reason you done that? A. Yes, sir. By the court: Q. Had you and this defendant agreed to marry each other before anything was said about sexual relations. A. No, sir.”

Again, the evidence of the girl’s father makes it clear that he knew nothing of any prior promise by the defendant to marry his daughter. Testifying as to what occurred at his home on the occasion of the defendant’s visit, the day before he and the defendant went to Springfield for the purpose of procuring a marriage license, he said that as he entered the room where the defendant and his daughter were conversing the defendant asked him to step out a minute or so; that he did so, and that when he re-entered the room his daughter said to him, “We have concluded to marry.” In the testimony of the girl’s mother there is nothing to indicate that she was aware of any promise to marry excepting that made by defendant on January 6, 1907.

The defendant denied that he ever agreed to marry the prosecutrix prior to the first or last act of sexual intercourse, but he admitted that he promised to do so after becoming aware of her condition, and testified that he would have married her had he believed that her parents would treat him with any respect.

The language of the statute upon which the said first count of the indictment is based is this: “If any person shall, under or by promise of marriage, seduce or debauch any unmarried female of good repute under twenty-one years of age, he shall be deemed guilty of a felony,” etc. [Sec. 1844, R. S. 1899; sec. 4478, R. S. 1909.] To constitute the crime denounced by the statute, the female must rely on the promise of marriage, and submit her person to the other party because such promise was made. The promise, of marriage must be the inducement for her consent to the intercourse. [State v. Eckler, 106 Mo. 585; State v. Thornton, 108 Mo. 640.] According to the testimony of the prosecutrix, the promise made by the defendant was that he would marry her if he got her in trouble. In other words, the promise of marriage was conditioned upon the act resulting in pregnancy. Such is not the promise mentioned iú the statute, and it constitutes no element of the offense. Under the statute, it is not seduction if the female submits her person to the other party in reliance upon his special and conditional promise to marry in the event of pregnancy. The statute cannot be construed to embrace conditional promises of that character. “A person cannot be convicted of seduction whose only inducement to procure the illicit intercourse was a promise to marry the woman if she became pregnant. ’ ’ [People v. Smith, 132 Mich. 58; Spenrath v. State, 48 S. W. 192.] In the Smith case, supra, the court said: “Is a promise to marry, conditioned upon the illicit intercourse resulting in pregnancy, calculated to induce a pure woman to yield her chastity? In our judgment, the question admits of but one answer. Such a promise has no tendency to overcome the natural sentiment of virtue and purity. The woman who yields upon such a promise is in no better position than as though no promise whatever had been made. No wrong is done her if she is put in the class with those who commit the act to gratify their desire. She was willing to lose her virtue if some provision was made to conceal its loss. If pregnancy does not result from the illicit intercourse, her conduct is in every respect as culpable as that of her. companion. If pregnancy does result, his conduct becomes more culpable than hers when, and not until, he refuses to marry her. ”

It may be said, in passing, that the defendant never refused to marry the prosecutrix. His letter from Cache, Oklahoma, to his father, shows that he desired to make amends for the wrong committed by marrying her, and there is no reason to doubt that he would have done so had Mr. Longcrier, the girl’s father, consented to the marriage. It is also shown that, prior to the trial, Mr. Longcrier’s consent to the proposed marriage had been frequently requested, and as often refused. While this evidence has nothing to do with the guilt or innocence of the defendant, .it nevertheless shows that he was willing to marry the prosecutrix, in keeping with his promise, and -that if he did not do so the blame does not rest wholly on him.

It would be useless to go further into this case. It presents the simple, sad and not sufficiently uncommon story of a young man and girl who chose “to enjoy the pleasures of sin for a season, ’ ’ without computing the cost or considering the consequences, excepting to agree to marry in the event of pregnancy resulting from the illicit intercourse.

Our conclusion is that the defendant’s demurrer to the evidence for the state should, have been sustained. The judgment is reversed, and the defendant discharged.

All concur.


text:
    THE STATE v. WILLIAM DUNWOODY, Appellant.
    Division Two,
    November 29, 1910.
    1. INDICTMENT: Voter: Fraudulent Attempt to Vote. An indictment which charged that the defendant, whose name is William Dunwoody, “unlawfully, feloniously, willfully, knowingly, falsely and fraudulently did then and there offer and attempt to register under a name not his own, to-wit, under the name of George Casey," etc., sufficiently charges that defendant attempted to register under a name not his own.
    2. VOTER: Attempting to Register Under False Name: Signature as Evidence. The signature of defendant executed hy him, in his right name, at the suggestion of a police officer that he sign his name, is competent to identify him, in a prose- . cution for havin'g attempted fraudulently to register as a voter under a false name.
    3. -: -: Prior Registration: Book as Evidence. Where defendant is being tried for having attempted to register as a voter under a false name, evidence tending to prove that he had previously registered in another election precinct under his right name, and the registration book of that precinct containing his name, are competent evidence for the purpose of identification, even though it tended to show he was 'guilty of another offense.
    Appeal from St. Louis City Circuit Court. — Hon. Geo. H. Shields, Judge.
    Affirmed.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
    (1) The indictment was drawn under Seie. 4441, R. S. 1909 (2120 j., Laws 1903, p. 158). It conforms to the form approved in State v. Cummings, 206 Mo. 623. It is not subject to the criticism to which the information was subjected in State v. Keating, 202 Mo. 201. The Cummings case was followed in the case of State v. Tiernan, 223 Mo. 147. The case at bar is a prosecution for attempting to register under a name not that of appellant, while the Cummings and Tiernan cases were prosecutions for the completed offense. The indictment here follows the cases named, as stated, and also charges the attempt in proper manner. The indictment charges the appellant with doing everything he could have done short of actually registering under the name of “George Casey.” If an attempt can be charged under the section mentioned (as it assuredly can), this indictment clearly charges it. This indictment was not drawn under Sec. 4894, R. S. 1909, but under Sec. 4441, R. S. 1909. Consequently there was no need to allege that appellant was “prevented or intercepted,” as in State v. Montgomery, 109 Mo. 645. Such allegation is not necessary in indictments drawn under sections of the statute aimed directly at the punishment of an attempt to commit a specified crime. State v. Neal, 178 Mo. 69. Oases of this kind are not further applicable here, but in the respect mentioned seem in point. (2) All that is required is substantial evidence of guilt. This much and more appears in the record brought here. .The request to instruct an acquittal was properly refused. State v. Miller, 188 Mo. 379; State v. McGhee, 188 Mo. 409; State v. Smith, 190 Mo. 723. (3) The first objection in the record was as to a certain signature of appellant of date July 5,1907. Appellant’s identity as William Dunwoody was an issue. A former signature by him as William Dun-woody was entirely competent. It was equivalent to an admission of his identity, and no more. Besides, the paper is not brought here, and this court cannot assume its incompetency. (4) The second objection was to the admission of appellant’s signature under the name of William Dunwoody .on the registration books of a precinct other than that in which the offense charged in the indictment was committed. Appellant was identified as the man who there signed as William Dunwoody. Appellant’s counsel asserted in the course of a colloquy concerning the admission of this evidence that he did not admit appellant’s name to be William Dunwoody. There was no intimation that appellant had committed any offense by registering in the other precinct. Under these circumstances his signature was admissible as an admission of his identity, in connection with the other evidence on that head. Even evidence tending to show the identity of the accused is admissible, even though such evidence tends to show him guilty of a separate offense. Underhill on Crim. Ev., see. 91; 1 Wigmore on Ev.,' sec. 414. (5) The first instruction is a copy of one heretofore approved by this court, except that it instructs as to an attempt to register instead of as to the completed offense. State v. Cummings, 206 Mo. 618. (6) The instructions as to (a) the indictment, (b) the presumption of innocence, (c) reasonable doubt, (d) credibility of witnesses, (e) the exclusion of remarks and questions of counsel and testimony stricken out, (f) and argument of counsel, are in oft-approved form. State v. Donnelly, 130 Mo. 648 ; State v. Alexander, 119 Mo. 459'; State v. Nueslein, 25 Mo. 124; State v. Wright, 134 Mo. 419'; State v. Hudspeth, 159 Mo. 193; State v. Brooks, 92 Mo. 557.
   BURGESS, J.

Defendant was convicted in the circuit court of the city of St. Louis of the offense of attempting to register as a voter under a name not his own, and his punishment assessed at two years and six months in the penitentiary. Timely motions for new trial 'and in arrest of judgment were filed and overruled. Sentence was formally pronounced and an appeal allowed to this court. The facts disclosed by the evidence are as follows:

On the 14th, 15th, 16th and 17th of September, 1908, there was a general registration of voters in the city of St. Louis. The judges and clerks of registration for the Ninth election precinct of the Fifteenth ward of said city had been duly appointed, had qualified, received the necessary books and blanks, and entered upon the discharge of their duties. On the 17th day of September, 1908, between nine and ten o’clock a. m., the defendant presented himself before the judges and clerks of the said Ninth election precinct of the Fifteenth ward, and said he desired to register. He gave his name as George Casey, his residence as No. 709 North 18th street, and was duly sworn by one of the judges of registration. A second judge then challenged the defendant’s right to register, and called in a police officer, whq placed him under arrest. At the police station he first gave his name as George Casey, and then admitted that his name was Dun-woody. He was identified as William Dunwoody by several policemen who knew Mm. It appeared from the evidence that defendant had previously registered in another election precinct uuder the name of William Dunwoody, and he was identified as the man who there signed under that name. Such signature was offered in evidence by counsel for the state for the purpose of identifying the defendant as William Dunwoody.

The defendant offered no testimony, but moved the court to instruct the jury to acquit, which motion was denied, and defendant excepted.

Defendant’s counsel filed no brief in this case, and he is not represented in this court. Several grounds for new trial are set out in the motion therefor. Most of these are of a very formal and general nature, and we shall pass upon such only as seem pertinent and worthy of consideration.

First, as to the indictment, the sufficiency of which is challenged both in the motion for new trial and in arrest. The indictment was drawn under section 4441, Revised Statutes 1909 (Sec. 2120j, Laws of 1903, p. 158). It conforms to the form approved in the case of State v. Cummings, 206 Mo. l. c. 623, and again approved in the case of State v. Tiernan, 223 Mo. l. c. 147. In the case at bar, however, the indictment charges the defendant with attempting to register under a name not his own, while the Cummings and Tiernan cases were prosecutions for the completed offense. The indictment charges that defendant “unlawfully, feloniously, willfully, knowingly, falsely and fraudulently did then and there offer and attempt to register under a name not his own, to-wit, under the name of George Casey, and in such offer and attempt did then and there, unlawfully, feloniously, willfully, knowingly, falsely and fraudulently pretend and represent to the said judges, clerks and officers of registration of said Ninth election precinct of the Fifteenth ward of said city of St. Louis, that his name was George Casey, and that he was one George Casey, and that he was entitled to register and be registered on the books of registration and registers of said election precinct as a qualified voter and elector of said election precinct, under said name of George Casey, and requested that said judges, clerks and officers of registration of said election precinct enter, write and register the name of him, the said William Dunwoody, on said registers, poll books and books of registration of said election precinct as George Casey, and as a resident and qualified voter and elector of said election precinct, entitled to register and vote in said election precinct, as George Casey, he, the said William Dunwoody, then and there well knowing that his name was not George Casey.”

The statute upon which the indictment is based provides that “any person . . . who shall register, or attempt or offer to register under any name not his own or who shall fraudulently register, or offer, or attempt to register, in or under the name of any other person, or in or under any assumed or fictitious name, or in or under any name not his own .... shall be adjudged guilty of a felony, and shall be punished by imprisonment in the penitentiary for not less than two years nor more than five years.”

In our opinion, the offense defined by the statute, and of which the defendant was convicted, is clearly and properly charged in the indictment.

The first objection in the record was to the introduction in evidence of a certain signature of defendant, the same having been executed by him at the suggestion of a police officer that he sign his name. As defendant’s identity as William Dunwoody was an issue, his signature as William Dunwoody was, we think, competent evidence to be laid before the jury, it being equivalent to an admission on his part that such was his name.

There was evidence tending to prove that defendant had previously registered in another election precinct in St. Louis under the name of William Dun-woody, and the registration book containing* his signature was offered in evidence, after one of the judges of registration of said precinct had testified as a witness that defendant was the person who there signed as William Dunwoody. Defendant objected to the introduction in evidence of the registration book, and preserved an exception to the court’s action in admitting* the same. There was no intimation that defendant had committed any offense by registering in the other precinct, and the evidence objected to was for no other purpose than identification. But though such evidence tended to show that defendant was guilty of another offense, it was still admissible as tending to prove his identity. [Underhill on Crim. Ev., sec. 91; 1 Wigmore on Ev., sec. 414.] “The previous conduct, representations and declarations' of a person whose identity is in question are competent if made ante 'litem motam.” [6 Ency. of Evidence, p. 922.]

One of the assigned grounds' for new trial is that “the court erred in its instructions to the jury, misdirecting the jury as to material matters of law, and submitting to the jury issues not presented by the evidence on the part of the state.”

We have carefully'read, all the instructions, and find no error therein. The first instruction, except that it instructs as to an attempt to register instead of as to the completed offense, is a copy of one approved by this court in the Cummings case, supra. The other instructions are of a formal character, applicable to all criminal prosecutions, and as such have often been approved by this court.

The evidence was amply sufficient to take the ease to the jury, and the court did not err in overruling the demurrer thereto.

Finding no reversible error in the record, the judgment is affirmed.

All concur.


author: GANTT, P. J.

text:
    THE STATE v. JOSEPH BUCHFELDER, Appellant.
    Division Two,
    November 29, 1910.
    1. INDICTMENT: Felony: Insufficient: False Election Returns. ■Where the statute makes the offense a' felony, the criminal act must be alleged to have been feloniously done. So that an indictment, attempting to charge that defendant and his fellow judges and clerks at an election precinct at a general primary, made a false and fraudulent return, is fatally defective, if it fails to charge that the returns had been feloniously made, certified and returned, with the intent to change the result of said election.
    2. FALSE ELECTION RETURNS: Erroneous Instructions: Primary: Voting for Other Party Candidate. Where defendant was being prosecuted for having, as a judge of election, at a general primary for the. nomination of candidates for all political parties within the State, made a false and fraudulent return of votes cast, and a witness has testified that he voted for a certain Democratic candidate for Governor (which was ■not counted) and all the rest of the Republican ticket, an instruction that contained the name of such witness and making the improper counting of his ballot the basis of a verdict of guilty, was erroneous, since his ballot could not, under the statute (Laws 1907, p. 266, sec. 18), have been counted for the Democratic candidate for Governor.
    3. DEFENDANT: Failure to Testify. A. reference by the prosecuting attorney in his argument to the jury to the fact that defendant did not take the stand to testify is entirely improper.
    Appeal from St. Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge.
    Reversed and remanded.

      Henry M. Walsh for appellant.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
    (1) In so far as the charging part of the indictment .in this case is concerned, it is a rescript of the indictment condemned in the case of State v. McGrath, 228 Mo. 413. (2) The proof of the holding of a general primary election in St. Lonis and of the particular offices to be filled thereat was properly made by parol. State v. Tiernan, 223 Mo. 147. State v. Exnicious, 223 Mo. 68. (3) Witness White testified that he voted for Stapel for the nomination for Governor by writing Stapel’s name on the Republican ticket. While no such vote could be counted for any one, appellant was not injured by the refusal of the court to strike out White’s testimony. (4) The second paragraph of the instructions does contain the name of Ernest White as one of the voters, the improper counting of whose ballot might be made the basis of a verdict of guilty — if the jury found he cast a “legal ballot” and it was wrongfully. returned for a candidate other than the one for whom it was cast. It will have to be conceded that White’s ballot could not have been counted for Stapel as a candidate for the Democratic nomination for Governor. Sec. 18, Laws 1907, pp. 266, 267. But it could have been and should have ■ been counted for Stapel for the Republican nomination for Governor (see same section), whereas it was, as the returns show, counted if at all, for Hadley. The difficulty with the instruction is that it limits the offense of the miscounting and false returning to the returning as counted for Cowherd votes cast for Stapel for the Democratic nomination only. This limitation was made necessary by the indictment. So far as White’s testimony is concerned, it alone would not warrant such an instruction. But the testimony of each of the other witnesses did warrant such a one. There can be no very good defense made for the action of the trial court in including White’s name in the instruction mentioned. However, that would not necessitate a reversal in this case. Had the appellant desired the jury instructed as to the legal effect of attempting to vote for the nomination of a Democratic candidate on a Republican ticket, he should have asked it. This he did not do. Neither was there an effort to strike ont "White’s testimony on the ground that it did not show any vote for Stapel for the Democratic nomination. Though the instruction mentioned may be erroneous in the respect suggested, yet appellant is not in a position to complain. (5 ) Objection was made because the court did not further instruct the jury, but no request for any specific instruction was proffered. The objection cannot be urged here. State v. Bond, 191 Mo. 563; State v. McCarver,' 194 Mo. 742; State v. West, 202 Mo. 137. (6) While counsel for the state may not refer to the fact that defendant did not testify (sec. 5243, R. S. 1909), yet the portion of the record showing such reference in. this case indicates that appellant’s counsel may have provoked such reference and also shows that the court interposed, correcting the circuit attorney, and directing the jury to disregard the remark. No further rebuke was demanded. The matter is not open for discussion here. State v. Murphy, 201 Mo. 696; State v. Baker, 209 Mo. 451.
   GANTT, P. J.

The defendant was indicted in the circuit court of the city of St. Louis at the October term, 1908, for making a false return in his capacity as a judge of election in the third precinct of the 16th ward of the city of St. Louis, at the general primary for the nomination of candidates for all political parties within the State of Missouri, for certain state and city offices.

The indictment covers twenty pages of closely printed matter and inasmuch as it is a rescript of the indictment in the case of State of Missouri v. McGrath, 228 Mo. 413, it is unnecessary to reproduce it here.

The defendant was duly arraigned and .entered his plea of not guilty and was tried and convicted and his punishment assessed at two years in the penitentiary. After unavailing motion for a new trial lie has appealed to this court.

The evidence on the part of the state tended to show that on August 4, 1908, there was a general primary election in progress in the various precincts of the several wards of the city of St. Louis, and the defendant and his co-indictees were the qualified and acting judges and clerks of the election in the third precinct of the Sixteenth ward on that day. The evidence tended to show that several persons named in the indictment were duly registered and qualified voters and they testified that they voted for the nomination of certain candidates for office at this election, particularly for Henry F. Stapel for the office of Governor on the Democratic ticket, for which candidate the election officers returned no votes at all. Other witnesses testified that they thought they voted, or believed they voted, for certain candidates for whom no votes were returned. Ernest White stated that he had voted for Stapel, and the rest of the Republican ticket. There was no evidence that the votes cast for Stapel were counted in favor of and as having been cast for ■ William S. Cowherd for candidate for nomination for Governor.

I. This indictment in its charging part as to the false return of the result of the electron is in the exact form of the indictment condemned in the case of State v. McGrath, 228 Mo. 413. It was there ruled that the indictment in that case was fatally defective because it failed to charge that the return in said precinct by the defendant and his co-judges and clerks had been feloniously made, certified and returned or delivered to the Board of Election Commissioners, with the intent to change the result of said election. The offense with which the defendant was attempted to be charged is a felony under our law, and it is the settled law of this state that iú all indictments for felonies the criminal act must he alleged to have been feloniously done. [State v. Keating, 202 Mo. 204; U. S. v. McCabe, 58 Fed. 557.]

Inasmuch as the indictment will not support the judgment, it is deemed unnecessary to discuss the various propositions advanced by counsel as to the sufficiency of the evidence and instructions.

It is conceded by the Attorney-General that there was an error in the second paragraph of the instructions for the state in that it contained the name of Ernest White as one of the voters, the improper -counting of whose ballot might be made the basis of a verdict of guilty, as White’s ballot could not have been counted for Stapel as a candidate for the Democratic nomination for Governor, as he voted the whole Republican ticket otherwise. [Laws 1907, pp. 266, 267, sec. 18.]

The reference of the prosecuting attorney to the fact that the defendant did not take the stand to testify in this case, was of course entirely improper and has been sufficiently condemned in former opinions of this court.

The judgment of the circuit court is reversed and the cause remanded for the error noted.

Burgess and Kennish, JJ., concur.


text:
    THE STATE v. WILLIAM (GID) KILE, Appellant.
    Division Two,
    November 29, 1910.
    1. MOTION FOR NEW TRIAL: Filed After Sentence. Tlie motion for a new trial must be filed before judgment; and if not filed before judgment rendered on tbe day verdict was returned, yet rendered wi-tbout any objection or exception being interposed by defendant, tbe motion filed two days later and at tbe same term cannot be considered on appeal, and tbe judgment must he affirmed unless there was error in the record proper.
    2. JUDGMENT AND SENTENCE: No Allocution. Under the statute, the defendant in a felony case- must be informed of the verdict of the jury and asked if he has any legal cause to show why judgment should not he pronounced against Mm; and if the record proper on appeal shows that was not done, the judgment cannot stand, hut the cause will he remanded with directions that defendant be brought into court and judgment pronounced according to law.
    Appeal from Shannon Circuit Court. — Now. W. N. Evans, Judge.
    Remanded {with directions).

      James Orchard for appellant.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    The record proper shows that the judgment of sentence was entered immediately after the return of the- verdict of the jury on September 20, 1909, and the motion for new trial was not filed until Wednesday, September 22, 1909. The motion for new trial must be filed within four days after the return of the verdict and before judgment. This is statutory and mandatory. R. S. 1909, sec. 5285; State v. Pritchett, 219 Mo. 696; State v. Fraser, 220 Mo. 34. There is nothing before this court but the record proper.
   KENNISH, J.

At the September term, .1909, of the circuit court of Shannon county, the defendant, Willie (Gid).Kile, was convicted of the crime of seduction under promise of marriage and his punishment assessed at imprisonment in the penitentiary for the term of two years. Prom the judgment he appealed to this court.

It appears in the record that on the 20th day of September, 1909, the defendant was put upon his trial and the .jury returned a verdict finding hixn guilty. On the same day, to-wit, the 20th day of September, 1909, the court, without any objection or exception being interposed, pronounced judgment against the defendant. Thereafter on the 22d day of -September,-1909, the defendant filed a motion for a new trial, which motion was on the same day overruled by the court and thereupon the defendant appealed from the judgment to this court.

It appears that the motion for a new trial was fled two days after judgment was pronounced, and therefore under the statute, as construed by this court, was filed out of time and too late to preserve for review the rulings of the court to which exceptions were saved at the trial.

It is provided by section 5285, Revised. Statutes 1909, that the motion for new trial shall be filed before judgment. Construing that statute in the case of State v. Fraser, 220 Mo. 34, this court said: “There is no necessity for discussing this proposition as to the effect of the motion for new trial being filed after sentence and judgment. In the case of State v. Pritchett, 219 Mo. 696, that question is fully considered, therefore what is said in that case is applicable to the case at bar.. It was ruled in the Pritchett case that the failure to file the motion for new trial before sentence and judgment, with the additional failure to object and except to the court rendering judgment at .that time before passing upon the motion for a new trial, simply leaves the case in the appellate court upon the record proper; therefore it follows that, as applicable to this case, there is nothing to be considered except the record proper.”

The foregoing decision is controlling authority in this case, and as the motion for a new trial was filed too late to preserve matters of exception occurring at the trial, it becomes our duty under this law to examine the record proper and render judgment thereupon.

The information contains a sufficient charge of the offense of which the defendant was convicted. The ■record shows that the defendant was properly arraigned, and the verdict of the jury is responsive to the issues and in due form.

The judgment, as it appears in the record, is as follows: “Whereupon it is found by the court that the defendant Willie Cid Kile is guilty as charged in the information of the prosecuting attorney and his punishment be fixed at imprisonment in the penitentiary of the State of Missouri for a period of two years from the date of-this sentence, and the sheriff of Shannon county, Missouri, shall without delay convey and deliver the said defendant, Willie Cid Kile, to the warden of the penitentiary of the State of Missouri at the City of Jefferson, and said warden is hereby directed to safely keep said defendant Willie Cid Kile for a period of two years from the date of this sentence unless sooner released according to law.”

Sections 5263 and 5264, Revised Statutes 1909, are as follows:

“Sec. 5263. When the defendant appears for judgment, he must be informed by the court of the verdict of the jury, and asked whether he has any legal cause to show why judgment should not be pronounced against him; and if no such sufficient cause be shown against it, the court must render the proper judgment.
“Sec. 5264. If the defendant has been heard on a motion for a new trial, or in arrest of judgment, and in all cases of misdemeanor, the requirements of the next preceding section shall be deemed directory, and the omission to comply with it shall not invalidate the judgment or sentence of the court."

The crime of which the defendant was found guilty by the verdict of the jury was a felony, and as he had not been heard on a motion for a new trial or in arrest of judgment it was the duty of the court, before pronouncing judgment and passing sentence, to inform the defendant of the verdict of the jury and ask him whether he had any legal cause to show why judgment should not be pronounced against him. [State v. Nagel, 136 Mo. 45; State v. McClain, 137 Mo. 307; 12 Cyc. 777; 19 Ency. Pl. and Prac., 455 et seq.]

The right to be heard after conviction and before judgment has come down to us from the Common Law of England. It has become a part of the statutory laws of this state and is generally recognized as the law in all cases of felony in the criminal jurisprudence of the states of this Nation. It had its origin and has become imbedded in our laws because of the necessity of safeguarding against error and injustice by securing to the accused, even after he has been found guilty, the right to speak and show cause, if any he has, why judgment should not be pronounced, before the final act of the law shall take from him the right of life or liberty.

It is provided by section 5264, supra, that if the. defendant has been heard before judgment by a motion for a new trial or in arrest of judgment and in all cases of misdemeanor, this statute giving to the defendant the right to show cause why judgment should not be pronounced against him shall be deemed directory, and in such case the failure to accord such right would not be a reversible error. [State v. Nagel, 136 Mo. 45.] But the fact that this statute shall be deemed directory only when the defendant has been heard on motion and in all other cases of misdemeanor, adds emphasis to its mandatory character as to all felonies where the defendant has not been so heard. In the case of State v. Nagel, 136 Mo. 45, a case in which the record failed to show that the defendant had been asked before judgment whether he had anything to say why sentence should not be passed upon him, this court. after a general review of the law upon the subject, .said: “Our statute, however, has made this matter of the allocution very plain. It is declared by section 4239, Revised Statutes 1889, that the formality aforesaid must occur in court, before the court proceeds to sentence the prisoner. But the next succeeding section provides that, if the defendant has been heard on a motion for new trial or in arrest, if the case is one of felony, and in all misdemeanors, the preceding section shall be deemed directory. In the present instance as the motions for new trial and in arrest had been passed upon, before defendant was sentenced, the failure to ask him, etc., is no ground to remand the cause in order to have the prisoner sentenced. ’ ’

The failure of the record to show a proper allocution is an error occurring after the verdict and does not affect the regularity of the proceedings before judgment and therefore does not entitle the defendant to a reversal of the judgment and a new trial. [State v. McClain, 137 Mo. 307; State v. Snyder, 98 Mo. 555; State v. Nagel, 136 Mo. 45.]

For the reason that the defendant was not informed of the verdict of the jury and asked to show cause why judgment should not be pronounced against hind, this cause is remanded, with directions to the trial court that the defendant be brought into court and that judgment be pronounced in accordance with this opinion.

Gantt, P. J., and Burgess, J., concur.


text:
    ABRAHAM SIMON et al. v. METROPOLITAN STREET RAILWAY COMPANY, Appellant.
    Division Two,
    November 29, 1910.
    1. NEGLIGENCE: Person Moving Towards Car: Instruction: Child. A statement in an instruction “that the fact that a person leaves the sidewalk and comes near the track of a street railway, is not enough in itself to impose the duty on the motorman to stop the car; that there must be something noticeable in the conduct of the person coming towards the track to apprise the motorman that such' a person is about to enter into a place of danger, to make it incumbent upon the motorman to stop the car,” is well enough when the person is an adult; but it is not applicable to a girl of the tender age of four years and three months. The law is that when a child of tender years is seen by the motorman to approach the track in front of the car, then he sees the child is in a perilous or dangerous position. [Disapproving Gabriel v. Railroad, 130 Mo. App. 656, on this point.] A child of such age is in peril from the moment she leaves the sidewalk and starts toward the track.
    2. -: -: Child: Momentary Stop. The fact that a four-year-old child left a place of safety on the sidewalk and started to cross the street, was enou'gh to warn the motorman that it might capriciously proceed upon its journey, and enough to cast on him the duty of stopping his car until the danger to her was past; and if the child made a momentary stop or hesitation, whether from confusion by other passing vehicles or indecision, he is not excusable, if thereafter only he used ordinary care to prevent the accident. It must have been such a stop as gave him the idea that she did not intend to go forward.
    3. -: -: -: Assumption of Fact. An instruction which assumes that there was evidence that the motorman saw the child leave the sidewalk and stop, when he testified that he first saw her when she was only a few feet from the track, and other witnesses testified he was looking in an opposite direction, and one of defendant’s witnesses testified he did not think the motorman saw her at all, is erroneous; and an instruction which says, “If the motorman after seeing the child start towards the track after making her last stop in the street used ordinary care with the means at hand to stop said car and to prevent a collision with the child,” then defendant is not liable, is such an instruction.
    4. -: -: -: Eliminating Other Issues. Said instruction is also erroneous in eliminating, every other fact and issue from the jury’s consideration except ordinary care after seeing her stop — there being evidence tending to show the motorman was negligent in not seeing the child at all, in not ringing the bell and' in not heeding the halloos of bystanders warning him of the child’s peril.
    5. -: Erroneous Instructions: Verdict for Right Party. Where the instruction was erroneous, harmful and probably brought about a verdict for defendant, and no demurrer to the evidence could have properly been sustained, the court will not hold that the verdict was for the right party, for under such circumstances plaintiffs are entitled to have the jury pass upon defendant’s negligence under proper instructions.
    Appeal from Jackson Circnit Court. — Hon. Henry L. McCune, Judge.
    AmURMED.

      John H. Lucas and Chas. N. Sadler for appellant.
    (1) Instruction 3A, given on behalf of defendant, is the law, was properly given in the first instance, and the court erred in granting a new trial to plaintiff on account of said instruction. Heinzle v. Railroad, 213 Mo. 102; Reno v. Railroad, 180 Mo. 469; Cbrnovski v. Railroad, 207 Mo. 263; Gabriel v. Railroad, 130 Mo. App. 651; Boland v. Railroad, 36 Mo. 484; Spillane v. Railroad, 135 Mo. 420. (2) The court erred in refusing to give the peremptory instruction in the nature of a demurrer offered by defendant at the close of plaintiff’s evidence, and again at the close of all the evidence; therefore, it was error to grant a new trial in any event. Heinze v. Railroad, 115 Mo. App. 667; Gabriel v. Railroad, 130 Mo. App. 657; Boland v. Railroad, 36 Mo. 484; Spillane v. Railroad, 135 Mo. 420; Payne v. Railroad, 136 Mo. 570. (3) The verdict of the jury herein being for the right party, and the only verdict that could be permitted to stand, should not have been set aside by the court and a new trial granted, even though it was error to give instruction 3A. R. S. 1899, sec. 865; Quinn v. Railroad, 218 Mo. 545; Mockowik v. Railroad, 196 Mo. 568; Baustian v. Young, 152 Mo. 325 ; Bassett v. Glover, 66 Mo. 381; U. S. Mtg & Tr. Co. v. Crutcher, 169 Mo. 458; Fairbanks v. Long, 91 Mo. 628; Cass County v. Bank, 157 Mo. 137; Bushey v. Glenn, 107 Mo. 331; Henry v. Railroad, 113 Mo. 526; Moore v. Railroad, 176 Mo. 545; Burns v. City, 131 Mo. 372; Swope v. Ward, 185 Mo. 329; State v. Jennings, 134 Mo. 281; Carr v. Railroad, 195 Mo. 224; Wabash, v. Sloop, 200 Mo. 198.

      Leon Bloch and Daniel O’Byrne for respondents.
    (1) Instruction 3A given on behalf of defendant is not the law, was improperly given in the first instance, and the court did not err in granting a new trial on account of said instruction. Heinzle v. Railroad, 213 Mo. 102; Cytron v. Railroad, 205 Mo. 692; Wahl v. Railroad, 203 Mo. 275; Holmes v. Railroad, 190 Mo. 98. And a very similar case, which decides that the curb line is the danger line is Cornovski v. Railroad, 207 Mo. 263. (2) The court did not err in refusing to give the peremptory instruction in the nature of a demurrer offered by defendant at the close-of plaintiff’s evidence, and again at the close of all the evidence. See cases cited under point I. (3)' The action of the trial court in granting plaintiffs a new trial will be affirmed if plaintiffs (.respondents) can show in this court that other instructions not criticised in the trial court are erroneous. Instruction 8 and the last portion of instruction 4 are erroneous, because there was absolutely no evidence that the plaintiffs were in any way negligent. By giving these instructions the court gave the jury to understand that there was some evidence that the plaintiffs themselves were negligent in some way, while there was no evidence that plaintiffs were negligent in any way. The fact that the law was correctly declared by onr instructions does not cure the errors in defendant’s instructions. The instructions are thus rendered contradictory. Livingston v. Railroad, 170 Mo. 452.
   GANTT, P. J.

This is an appeal from an order of the circuit court of Jaeksoh county granting the plaintiffs a new trial.

The action was for ten thousand dollars, brought by the plaintiffs for the death of their minor daughter. The trial resulted in a verdict for the defendant, and the court set aside the verdict and granted plaintiffs a new trial on the ground that the court erred in giving instruction “number 3A” on behalf of the defendant.

The petition stated that the plaintiffs were husband and wife and respectively the father and mother of Sarah Simon, who was at all times a minor and unmarried; that the defendant was at all the times mentioned a corporation operating an electric car line over and upon the streets of Kansas City, among other streets an electric car line and electric cars over and upon Third Street between Walnut and Grand Avenue; that on or about July 11, 1905, about five o’clock in the afternoon, on said Third Street and about sixty feet west of Grand Avenue, Sarah Simon, the minor child of plaintiffs, while attempting to cross said Third Street from the south side thereof to the north side thereof, the said Third. Street running east and west, was run .into, her left leg fractured, and she was terribly injured otherwise, by an electric car which was then and there run, conducted and managed by the employees of the defendant, and as a result of said injuries said Sarah Simon died within ten hours thereafter. That the said Sarah was thus run into and injured by said car through the negligence and unskillfulness of the servants and employees of the defendant whilst running and managing said electric car in this: First; the motorman of the said car and in charge thereof negligently failed to sound any bell or give any other warning of the approach thereof; second, the said motorman failed to stop the said car within a reasonable time after he saw the dangerous situation of the said Sarah; third, that the said motorman negligently failed to stop the said car within a reasonable time after he might have seen the dangerous situation of the said Sarah; and, fourth, that the agents, servants and employees of said defendant negligently failed to attach' a good and sufficient fender to the front end of said car, which in the exercise of ordinary care they should have done.

The answer was a general denial and a plea of contributory negligence on the part of the said Sarah Simon and the plaintiffs directly contributing to the injury of the said Sarah.

The evidence tended to show that on July 11, 1905, the plaintiffs resided on the north side of Third Street just east of the alley between Walnut Street and Grand Avenue in Kansas City. They were the parents of several minor children, and among them the deceased child Sarah, aged four years and three months. The father conducted a clothes pressing shop at said place, and his family lived in the rear of it. Third Street runs east and west. Almost directly across the street from the plaintiff’s business place and home, Mrs. Barman, with her husband, conducted a millinery establishment. In the afternoon of the 11th of July, 1905, Mrs. Barman, who testified she-was a childless woman, went over to the plaintiffs’ residence and on the parents’ consent took their three minor children across the street to her business place. They played around her establishment inside of the house or store. She had the youngest child on her knee and did not notice that Sarah had gone outside until she heard the shouts and cries in the street about five o’clock that afternoon. She went out and found that Sarah, the deceased child, had been struck and run over by an electric car. There was no one on the car except the motorman and conductor. She testified that the child was never permitted to cross the street unaccompanied.

George Chapman testified that he was walking along Third Street, proceeding east, between Walnut Street and Grand Avenue, on the south side of the street, and' passedThe little girl Sarah about the time she was leaving the curb to cross the street; that at the time the child first started in.the street, the car was at the Walnut street curve; that he stopped four or five feet after he passed her and leaned against the iron post, one of the posts that supports the electric line of the defendant. He saw the child standing four or five feet from the curb in the street; that the child started again, and when she did so the car was about to the vacant lot west of the alley. He saw she was in danger; there was no object between the child and the street car. The witness heard no bell, and the car’s speed was about five or six miles an hour. The child toddled, did not run. She was dragged six or seven feet after she was struck. A colored policeman took the child from under the car.

Edwin J. Shannahán testified that he had made measurements for the plaintiffs, and that it was seventeen feet and four inches from the south curb to the rail at the alley; that it was sixty-one feet and seven inches from the alley to Grand Avenue, and twenty-nine feet and one inch east of the east line of the alley to the east line of the door in Barman’s place; that the vacant lot alluded to by Chapman in his testimony was over forty feet west of Mrs. Barman’s door, out of which the child came.

Mrs. Bernstein testified that she was coming from Grand Avenue into Third Street; that when she was six or seven feet from the corner of Grand Avenue, she saw the child coming from the sidewalk into the street and also saw the car coming’; she hallooed to the motorman to stop the car, but he paid no attention, he was looking towards the north side' of the street (all the testimony showed that the child came from the south side of the street). Mrs. Bernstein testified that she hallooed when the child was leaving the curb of the sidewalk. At that time the car was fifty or fifty-five feet west of the place where it struck the child. She testified further that no bell was rung, and that the child was walking and did not stop.

Mrs. Emma Bernstein testified that she saw the child and then saw the car about fifty feet on the other side of the alley. She'raised her hand and hallooed to the motorman, but he was looking to the other side. He paid no attention. No bell was rung.

Lee J. Hill testified that he was an ex-motorman; that he had operated similar cars to this one over similar grades; that this grade was three or four per cent, and in this connection it may be remarked that Mr. Satterlee, defendant’s assistant superintendent, corroborated this witness as to the grade of the track. Hill testified that this car, under the circumstances in evidence, could have been stopped within ten to fifteen feet. The motorman. himself testified that he stopped the car within from twenty to twenty-five feet.

The father of the deceased child testified that at the time the child was hurt, he was at work in his shop on the north side of Third Street between Grand Avenue and "Walnut Street and just east of the alley, which extends south through the block; that there was no window in the west side of his shop, but there were large windows in the front; that he could see about fifty feet up towards Walnut Street through the front window ; that from time to time he looked across the street and saw his children over in Mrs. Barman’s store; that he saw the ear that injured his child when it was about fifty feet west of the alley; that the motorman was looking towards the north side of the street and upward at the point above witness’s shop ; that he heard no bell.

Irvin Schofield, on behalf of the defendant, testified that he was the motorman in charge of the car which killed the child and that the accident happened at 4:55 p. m. He said, “Well, I was coming from Third and Walnut going down towards Grand; I got probably two-thirds of the way down. There is an alley there; I got somewhere close to the alley, maybe not quite to it, or maybe a little past it, and ahead of me between the curbing and the rail, I seen a little child starting towards the track running fast, and I seen that we were going to come together, the way we were going, and I hallooed, ‘Look out!’ at the child, just like that, as loud as I could, and applied the brakes at the same time. By that time we had pretty near come together, we had come close and the little child ran right in ahead and back of the fender and fell back and I had the car pretty near stopped.” On cross-examination he testified that he did not see the child on the curb; that she was probably half way between the curbing and the rail when he first saw her, and she was running towards the track. The only thing he did to avert the injury was to apply his brake and hallooed to the child. Pie was moving five or six miles an hour; that he was about to the alley when he first saw her; that'he stopped the car with a hand brake within from twenty to twenty-five feet.

Peter Campbell, a witness for the defendant, did not hear the bell ring; he was a police officer; that he and Sergeant Lynch and Mr. Thompson were standing somewhere near Third Street and Grand Avenue, looking west up Third Street, and saw some children playing on the sidewalk up the street; saw a little girl start across the street; at the time she started the car was about opposite ber, she started due north across the street and when near the track turned northeast and ran between the fender and the bumper of the car and was knocked down. The car ran three or four feet after she was struck. The front wheel mashed the child’s leg. She was not on the track or in front of the car. Witness took the child from under the wheel. The child ran faster than the car when she started towards the track. The motorman made a quick stop. He did not think the motorman knew what had happened. “Q. You do not think then that he saw the child? A. I do not think he did. Q. He did not give any evidence or make any alarm which would indicate as far as you heard? A. No, sir, of course the child began to hollo and I holloed and he stopped. I holloed and told him to back up, of course he knew there was something wrong there and then he backed up. ’ ’

Jerry Lynch, a sergeant of the police, testified in behalf of the defendant. His evidence is substantially' the same as that of Peter Campbell, except that he testified that the motorman hallooed, but he did not hear any bell rung, and that at the time the child hesitated in the street the street car was close to the alley.

William Spenamen, for the defendant, testified that he was looking out of his window on the north side of the street, did not see the accident, but saw the child start to run across the street and the car came between him and the child and he did not see her any more: that when the child was stepping off of the curb the front of the car was about at the west line of the alley. When the child was half way between the curb and the track the car was about one hundred feet west of the little girl. The first motion on the part of the motorman to use his brake was after the car had gotten across the alley.

This was substantially the evidence in the case. At the close of the evidence the defendant requested an instruction in the nature of a demurrer to the evidence, which was refused. The court then instructed the jury, and the jury returned a verdict for the defendant, and thereupon plaintiffs filed their motion for new trial, alleging among other grounds that the court erred in giving, instructions as ashed by the defendant. The court sustained the motion for new trial on the ground that it had erred in giving instruction number 3A on behalf of the defendant and from this order the defendant takes its appeal to this court.

Said instruction number 3A is in these words: “The court instructs the jury that the fact that a person leaves the sidewalk and comes near the track is not enough in itself to impose the duty on the motorman to stop the car; there must be something noticeable in the conduct of the person coming towards the track to apprise the motorman that such person is about to enter into a position of danger, to make if incumbent on the motorman to stop the car. Now. if the jury believe from the evidence, that the motorman saw the child leave the sidewalk and come into the street and stop, before getting to the track, then the motorman in charge of the car in controversy had the right to proceed with his car, and he was not required to stop the car until there was a movement by the child which indicated that it was about to run into a position of danger; and if the motorman, after seeing the child start towards the track after making its last stop in the street, used ordinary care with the means at his command, to stop said car and prevent a collision with the child, then there was no negligence, and the plaintiff cannot recover in this ease, and the jury must return a verdict for 'the defendant company.”

I. The defendant insists that the order of the circuit court granting plaintiffs a new trial should be reversed because the court erred in reaching the conclusion that its instruction number 3A, given in behalf of the defendant, was erroneous, and asserts that the said instruction correctly stated the law. The statement in that instruction “that the fact that a person leaves the sidewalk and comes near the track,” is not enough in itself to impose the duty on the motorman to stop the car; that there must be something noticeable in the conduct of the person coming towards the track to apprise the motorman that such a person is about to enter into a place of danger, to make it incumbent upon the motorman to stop the car, “is well enough when the person is an adult,’’.but it is inapplicable to a child of the tender years that the deceased child of the plaintiffs was in this case. Oh the contrary, numerous cases in this court assert the doctrine that when a child of tender years, as the plaintiffs’ child was in this case, is seen by the engineer or motorman in charge of a train or car, approaching the track in its front, then he sees the child is in a perilous or dangerous position.

In Cytron v. Railroad, 205 Mo. l. c. 719, it was said by this court In Banc: “The motorman knew his car was bouhd to occupy, with crushing force, the very spot the child’s steps were directed to. It was obvious to the motorman that the child did not know that fact.” Under such circumstances it was said, “Both danger and duty began the instant the child left the sidewalk, bound headlong into peril.” [Livingston v. Railroad, 170 Mo. 452; Meeker v. Railroad, 178 Mo. l. c. 176; Heinzle v. Street Ry. Co., 213 Mo. l. c. 114; Cornovski v. Transit Company, 207 Mo. 263.] In this last mentioned case it was said: “Our very instinct teaches us that when a four-year-old child, unattended, leaves the curb of a sidewalk — that is, leaves a place of comparative safety — and heads across a street devoted to traffic in a great city, with a ear track twelve feet away on which a car is approaching, the little one as surely and instantaneously plunges into danger as that the square of the hypotenuse of a right-angled triangle equals the sum. of the squares of the other two sides; i. e., speaking broadly, it is axiomatic. Danger to the child and duty on the motorman’s part began the instant such a child left the sidewalk, bound headlong for the track. [Cytron v. Railroad, 205 Mo. l. c. 720; Livingston v. Railroad, 170 Mo. 452.]”

"We are cited, however, by the defendant to the decision of the Kansas City Court of Appeals in Gabriel v. Railroad, 130 Mo. App. 656, in which that court, in speaking of a child of six years of age, used this language: “But there was no evidence that there was any action upon the part of the child to indicate that she was unaware of her danger in time for the defendant’s motorman to have avoided striking her. The mere fact that a person is on the street with the evident purpose of crossing it while a car is approaching, is no evidence in itself that he intends to place himself in a position of peril.” Citing Reno v. Railroad, 180 Mo. 469. Reno v. Railroad was a case in which an adult was the plaintiff who walked across the streetcar track, in broad daylight, when there was no obstruction either way, but that case, as is pointed out in Heinzle v. Railroad, has no application to a case of a minor child of tender age, who is incapable of contributory negligence, and that decision did not follow the decisions of this court on this point.

But counsel say that this statement in the instruction is a mere abstract statement of the law, and we infer from this that in his opinion, even though it should be held erroneous with reference to the facts in evidence in this record, still it would not justify the circuit court in granting a new trial on account of its error. The remainder of the instruction must be considered, and it is in these words: “Now if the jury believe from the evidence that the motorman saw the child leave the sidewalk and come into the street and stop before going to tbe track, then the motorman in charge of the car in controversy had the right to proceed with his car, and lie was not required to stop the car until there was a movement by the child which indicated that it was about to run into a position of danger.” The plaintiff’s challenge the predicate of this part of the instruction, because they insist that the fact that the child stopped for an instant, or hesitated in its movement towards the train, did not absolve the motorman from the duty of taking precaution to prevent its injury and death. Defendant insists, however, that this instruction is based upon the plaintiff’s own evidence in the case, and contends that the witness Chapman testified that he saw the little girl playing in the street near the curb and the fact that she was playing or standing there, and when she started to cross the street, whether she was playing just off the curb or just on the curb, would not affect the matter, because, in either event, the motorman was not bound to stop the ear, or slacken the speed of it, until there was something to indicate the purpose of the child to cross the street. We have carefully examined this evidence of Chapman and the other testimony in the case, and while some of the witnesses speak of other children being- along there, neither Chapman nor any other witness states that this child was playing in the street, or on the sidewalk at any túne. The witness Chapman states that he saw the child step off of the curb, and start across the street, and when it had gone a few feet it stopped, and then, to use the language of the witness, “ toddled on toward the track.” The instruction directs the jury that if the motorman saw the child leave the sidewalk and come into the street and stop before going to the track, then the motorman was under no obligation to stop-his car. When the whole evidence of Chapman and others is taken into account, with the necessarily short-time within which the whole transaction occurred, it. is perfectly obvious, we think, that the child only made a momentary stop or hesitation, either from confusion at seeing the wagon cross or from childish indecision, but whatever the occasion of the stop, and even though the motorman might have seen its action from the time it left the curb, and understood the likelihood that it was going to continue its journey across the track, under this instruction, the motorman was free from any duty towai'ds the child to prevent its injury at all after it made a subsequent start across the track. We think the instruction is too strong in this respect; it was not enough that the child merely stopped and hesitated, to give the motorman the right to proceed, but it must have been such a stop as gave him the idea that the child did not intend to go forward; if it looked like the stop was a mere pause or hesitation, as was testified to by various witnesses, it was his duty to have stopped his car- before the child made the further movement which indicated that it was about to run into a position of danger. The size of the child, its extreme infancy, its position in a public street, upon which ponderous cars were constantly running, its having left a place of safety on the sidewalk, and started to cross the street, was enough to warn the motorman that it might capriciously proceed in its journey and enough to cast upon him the duty of stopping his car until the danger to the child was past.

In Jones v. Railroad, 201 Pa. St. 344, the injured child was not upon the track, but was walking upon another track upon which cars ran in an opposite direction, and the Supreme Court said: “She was not at that time, it is true, on his track [that is, the track of the motorman whose car ran over her] but he was bound to know that in her childish caprice she was as likely to cross over in front of his moving car as to go back to the pavement, and his duty the instant he saw her, or if exercising proper care and watchfulness, he ought to have seen her, was to stop or to so absolutely control Ms car as to avoid the risk before him. ’ ’

Counsel for defendant properly concede that this court and other courts of last resort have placed the danger line for children further away from the track than for adults, and have held that it is the duty of a motorman to begin to stop his car sooner for children than for adults who are presumed to know the danger and to stop before going upon a car track, but insist that even these cases do not require a motorman to stop his car until there is some movement of the child indicating its intention to cross the track or come near enough to the car to put itself in danger of being-struck, and this is what this instruction declares, and it is in this that the error lies. We think this court announced the true rule as to children of tender age in Cornovski v. Transit Co., 207 Mo. l. c. 274, when it said: “Danger to the child and duty on the motorman’s part began the instant such a child left the sidewalk, bound headlong for the track.” Present in the street where horses, wagons, and cars were constantly moving in broad daylight, a child less than four and a half years old, with only a few feet between the curb and the car track, with its face to the track, every instinct of a normal man and universal experience teach him that the child is already in imminent danger, and the law having regard for human life requires a motorman in charge of a ponderous car on a public street to stop until the danger to the cMld is ■averted. He is not to speculate that it may not run upon the track, and cannot indulge the presumption which he may rndulge as to adults that it may not go into further danger; it has already entered into the danger zone. As said by the Supreme Court of Pennsylvania: “He was bound to know that in her childish caprice she was as likely to cross over in front of his moving car as to go back to the pavement, and Ms duty the instant he saw her, or if. exercising proper care and watchfulness, he ought to have seen her, toas to stop or to so absolutely control his car as to avoid the risk before him.” The mere temporary stop of the little child, caused either by its caprice or hesitation on account of the wagon or car, did not absolve the motorman from his duty to stop his car until danger to the child was certainly averted, but this instruction did, and the jury were told that his duty only arose or began when the child again started on its journey to its destruction. Thus instructed the jury might well have found that after that last start the motorman could not have stopped his car in time to have prevented the injury and death of the child, and hence they must find for defendant.

Moreover, this instruction was erroneous because it assumes there was evidence that the motorman saw the child leave the sidewalk and stop, whereas the motorman himself testified he first saw the child when it was only a few feet from the track, and another witness, officer Campbell, testified he did not think the motorman saw the child at all until the collision had occurred, and other witnesses testified the motorman was looking upward in the opposite direction from that from which the child approached the train. The instruction concludes: “If the motorman after seeing the child start toward the track after making its last stop in the street, used ordinary care with the means at his command, to stop said car and prevent a collision with the child, then there was no negligence and the plaintiff cannot recover in this case and the jury must return a verdict for defendant.” In a word, the jury were told that if the motorman used ordinary care after he saw the child start towards the track after making its last stop, then there was no negligence and no liability. Every other fact was eliminated from their consideration, nothwithstanding there was evidence tending to show the motorman was negligent in not Seeing the child and the jury might have believed that by the exercise of ordinary care he would have seen her in time to have avoided injury to her, and the instruction wholly ignored the testimony as to his failure to ring the bell and the efforts of bystanders to warn him of the child’s peril.

Especially harmful was the making the “last stop” the point when the duty of the motorman began, inasmuch as there was testimony that the little child stopped first at the edge of the curb' and then other testimony that it made another stop and then toddled on toward the track, and under this part of the instruction the jury were given to understand that the motorman was required to take no step to stop until after this last stop, though the whole evidence shows it was only momentary. Officer Campbell, a witness for the defendant, testified that she might have stopped a second, hot over that any way.

In our opinion this instruction was erroneous and harmful and occasioned the verdict against plaintiffs, and the circuit court did not err in so holding and in granting a new trial on that account.

II. But it is urged that even though the instruction was erroneous, the circuit court erred in granting a new trial because the court ought to have sustained the demurrer to the evidence and taken the case from the jury. The statement of the facts already set forth we think required the court to submit the question of defendant’s negligence to the jury under the first instruction given in behalf of plaintiffs, without the instruction 3A given in behalf of defendant.

III. As to the proposition that the verdict was for the right party, it is sufficient to say that the plaintiffs ’ evidence entitled them to have the jury pass upon the negligence of defendant under proper instructions, and we have held they did not have that privilege, and the learned circuit court so held.

There are instances in which the appellate court • has well said that notwithstanding the circuit court-has given an improper or incorrect instruction, the whole record showed that the verdict was right and the judgment would not be reversed where it was evidently for the right party. Under the evidence in this case there was an issue for the jury under proper instructions and it is not our province to pass upon the weight of the evidence.

It should also be said that instructions numbered 4 and 8 were improper in that they submitted to the jury whether the plaintiffs were guilty of contributory negligence in permitting the child to be upon the street. We think there was no evidence tending to show the plaintiffs were negligent in this regard.

In our opinion the circuit court had the right to grant a new trial and there was no error in its action in so doing, and the judgment is therefore affirmed.

Burgess, J., concurs; Kennish, J., not having been a member of the court when the cause was argued, takes no part in the decision.