author: FOX, P. J.

text:
    THE STATE v. JAMES R. FOGG, Appellant.
    Division Two,
    November 19, 1907.
    1. INFORMATION: Clerk's Attestation. The information is not insufficient because the clerk did not use the seal of his office in attesting the affidavit of the prosecuting attorney to the information.
    2. SEDUCTION: Exhibition of Child to Jury. The fact that the prosecutrix in a seduction case had her child in the courtroom during the trial and took it with her to the witness stand • and held it while testifying, was not reversible error.
    3. -I-: Instruction: Corroboration. It is not reversible error to refuse an instruction for defendant on the subject of corroboration, argumentative in character, where the court has already on behalf of the State positively directed the jury that prosecutrix’s testimony must be corroborated, and indicated how that may be done, and fully and pointedly announced the strength such corroborative evidence must have.
    4. -: Prior Illicit Intercourse. An instruction which tells. the jury that, if prosecutrix “had sexual intercourse with defendant or any other person or persons” prior to the date of the alleged seduction, “then you will acquit the defendant,” is erroneous, and should be refused. It forecloses any consideration of her reformation. To be complete the words, “unless you further find that at the time of the alleged seduction she was following the path of virtue and rectitude,” or w’ords of similar import, should be added.
    5. -: -: Paramount Question. In a seduction case the question of paramount importance is, was the prosecutrix of good repute at the time of the commission of the alleged Offense? And that means what .the people of her acquaintance generally say of her in that regard; that is, the general credit for chastity which she bears among her neighbors and acquaintances.
    6. -: Instructions: Promises: Blandishments. Instructions Which tell the jury that if prosecutrix consented to the sexual intercourse “in consideratión of a promise then and there made to her by defendant to marry her” or "if she consented to said intercourse without the practice by defendant of arts or blandishments upon her and she yielded to satisfy her passions,” or “if there was no seduction within the meaning of the word,” etc., may be properly refused, if the subjects treated of by them were fully and fairly presented in an instruction given on behalf of the State.
    7. -: Reputation of Defendant. Testimony offered to prove defendant’s reputation for truth and veracity, when his reputation has not been assailed, should be excluded. And the mere fact that there is ¿ conflict between his testimony and that of the prosecutrix is not, in contemplation of law, such an attack upon his reputation as would warrant the admission Of the testimony.
    8. -: Reputation of Prosecutrix. An instruction which tells the jury that if the prosecutrix’s general reputation for truth and veracity has been proven to be bad, that would be no justification for defendant’s seducing her, if the jury believe from the evidence that he did seduce her, is not erroneous.
    9. ———: Sufficiency of Evidence: Credibility: Appellate Practice. The appellate court will not undertake to reconcile the conflict in the testimony. Where the State’s testimony, if true, furnishes ample support for the verdict, and if defendant’s evidence was true he should have been acquitted, the court Will not say that a demurrer to the evidence should have been sustained. The credibility of the witnesses is for the jury.
    Appeal from Barry Circuit Court. — Hon. Argus Cox, Judge.

      Affirmed.

      T. D. Steele for appellant.
    (1) In this ca.se the sexual intercourse was admitted by defendant before any testimony was introduced, and never denied at any time during the trial. The rule is that the prosecution, in cases of seduction, where the sexual intercourse is denied, may refer to' the child born as a circumstance tending to corroborate the prosecuting witness as to criminal intimacy. But where the sexual intercourse is admitted, as in this case, the exhibition of the child or its paternity is immaterial and could serve no other purpose than to prejudice the minds of the jury against the defendant and preclude him from having a fair trial. Barnes v. State, 37 Tex. Crim. 320; Hanawalt v. State, 64 "Wis. 845; Reitz v. State, 33 Ind. 187; Risk v. State, 19 Ind. 152. (2) The second assignment of error is based upon the court’s refusal of defendant’s second instruction: ■ This instruction is an exact copy of the one numbered 2% given in State v. Meals, 184 Mo. 251, and approved by this court with this additional matter added to same: “And is not merely such as might reasonably be expected between two young people who were having illicit intercourse with each other.” This instruction should have been given. If the conduct and acts of the parties are relied upon for corroboration then certainly if such conduct and acts of the parties are such as might be expected from young people having illicit intercourse with each other, that element should be submitted to the jury along with the other. State v. Meals, 184 Mo. 245. (3) The trial court erred in refusing instruction 5, to the effect that intercourse might be shown by circumstances. State v. Thornton, 108 Mo. 654. (4) The next assignment of error is in refusing instruction 6, to the effect that if the prosecuting witness consented to the intercourse in consideration of the promise' of marriage and without the practice of arts or blandishments by defendant, etc. This instruction has often been approved by this court and the testimony of the prosecuting witness was very strong to the effect that she would have Mm renew the promise at each of the numerous congresses. She also relied upon the promise that he made not to tell it and that no one would ever know it. In the language of many decisions, this was bargain and barter. The refusal of this instruction under the evidence was reversible error. State v. Reeves, 97 Mo. 677; State v. Meals, 184 Mo. 252. (5) As to the next assignment of error: If it is necessary, in order to uphold a conviction in seduction cases, that the defendant should use some seductive arts, blandishments, persuasion or wiles, then this case must fall to the ground. Under her testimony the 7th, 8th and 9th instructions should have been given and their refusal was reversible error. State v. Reeves, 97 Mo. 668; State v. Meals, 184 Mo. 253.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The information, wMch was accompanied by the affidavit of the prosecuting attorney, is sufficient in form and substance. State v. 0 ’Keefe, 141 Mo. 272; Kelley’s Crim. Law, sec. 555; R. S. 1899, sec. 1844. (2) Defendant objected to prosecutrix bringing her baby into court and allowing the child to sit in her lap in the presence of the jury. This court has even held that it was proper to bring the child into court, and to offer the child in evidence, following the decisions of other courts. State v. Palmberg, 199 Mo. 253; Woodruff v. State, 101 N. W. 1117; State v. Fetterly, 74 Pac. 810; Lamphere v. State, 89 N. W. 128. (3) The State’s instructions were full and complete, and very fairly stated the law to the jury. .They were such as have met with the approval of this court. State v. Dent, 170 Mo. 398; State v. Eisenhour, 132 Mo. 140; State v. "Wheeler, 108 Mo. 658; State v. McCaskev, 104 Mo. 644; State v. Hill, 91 Mo. 423. The instructions defining the crime of seduction come up to the requirements, as laid down by Judge Sherwood. State v. Reeves, 97 Mo. 668. (4) Defendant’s refused instructions were properly refused by the trial court. Some of said instructions were a comment on the evidence of certain witnesses, and singled out the testimony of said witnesses. State v. Grugin, 147 Mo. 56; State v. Hibler, 149 Mo. 478; 2 Thompson on Trials, sec. 2330. Others were erroneous, and the substance of others had already been included in instructions given on behalf of the State. The refusal to give additional instructions, embodying the same matters, does not constitute reversible error. State v. Bradford, 156 Mo. 91; State v. Nelson, 166 Mo. 191. (5) The evidence of defendant’s guilt was not only substantial, but was overwhelming. On the subject of the corroboration required: State v. Dent, 170 Mo. 406; State v. Eisenhour, 132 Mo. 147; State v. Davis, 141 Mo. 525; State v. Phillips, 185 Mo. Í88; State v. Sublett, 191 Mo. 163. Our courts and text-writers have said that positive evidence in corroboration of the promise of marriage is not necessary; but that such corroboration may be proved by circumstances. State v. Hill, 91 Mo. 423; Kenyon v. People, 26 N. Y. 203; Boyce v. People, 55 N. Y. 644; Armstrong v. People, 70 N. Y. 38; State v. Curran, 51 Iowa 119; State v. Wells, 48 Iowa 673; Zabriskie v. State, 43 N. J. L. 647; Rice v. Com., 100 Pa. St. 32; State v. Timmens, 4 Minn. 332; 4 Elliott on Evidence, sec. 996; Underhill on Crim. Evid., sec. 390.
   FOX, P. J.

This cause is brought to this court by appeal on the part of the defendant from a judgment of conviction in the circuit, court of Barry county for seduction under promise of marriage. Omitting formal parts, the information, which was duly verified, upon which this prosecution is based, thus charged the offense :

“D. H. Kemp, prosecuting attorney within and for the county of Barry, in the State of Missouri, acting herein under his oath of office, and upon his knowledge, information and belief, informs the court that one James R. Fogg, on the — day of March, 1905, at and in the county of Barry and State of Missouri, did then and there, under and by promise of marriage, made to one Minnie P. Hefley, by him, the said James R. Fogg, unlawfully and feloniously seduce and debauch her, the said Minnie P. Hefley, she, the said Minnie P. Hefley, being then and there an unmarried female of good repute and under twenty-one years of age, against the peace and dignity of the State.”

Defendant filed an application for a change of venue on the ground of the alleged prejudice of the regular judge of that court, which application was sustained, and Hon. Argus Cox, under the provisions of the statute, was requested to try the case, and in obedience to such request did try the case in Barry county at the September term, 1906, of said court.

While in the trial of cases of this character it is essential in the trial court to have the witnesses detail minutely all the acts done and conversations had which tend to establish the commission of the offense charged, yet in the appellate court we do not deem it essential to recite in detail all of the testimony of the respective witnesses as to the commission of this offense. Testimony of witnesses in cases of this character frequently consists of statements that add nothing to the legal literature of this State and cannot be of any interest to the profession or the public; therefore we must be content with a sufficient statement of the tendency of the proof to enable us to determine the legal propositions arising from the evidence introduced. We have read in detal the entire testimony in this cause- as disclosed by the record. The State’s evidence tended' to prove that prosecutrix was born on August 16,1884, and was, therefore, between twenty and twenty-one years old at the time of the alleged commission of the crime charged. At said time she lived with her parents at their home in the Pasley school neighborhood, some four or five miles southwest of the town of Cassville, in Barry county. Defendant lived in the same neighborhood. In July, 1904, prosecutrix and defendant became engaged, but quit keeping each other’s company till about the first of January, 1905. About the fifteenth of January, 1905, they again became engaged and their marriage was set for the first Sunday in May following. On account of prosecutrix being sick at that time, the marriage was postponed till the fourth of July. On account of defendant having a fight and the prosecution that resulted therefrom, the marriage was postponed till the first of September. The last of September or the first of October, it was discovered that prosecutrix was pregnant and defendant quit visiting her. As soon as she and defendant became engaged prosecutrix began making a carpet, some clothes and quilts and defendant gave her some money with which to make purchases. In the spring and summer of 1905 prosecutrix procured fruit, which she canned; also put up some jelly for the family use. On the thirtieth of March, 1905', defendant requested prosecutrix to have sexual intercourse with him, but she declined. Defendant reminded her that it was only a short time till they were to be married, ánd assured her that no one would know it except them. He also reminded her of the money that he had given her to buy clothing with, and told her that she ought not to' refuse him if she cared for and loved him. Having confidence in and loving him as she did, prosecutrix yielded to defendant several times; the seduction occurred at her father’s home at night, after her parents had gone to bed. As a result of said intercourse prosecutrix gave birth to a child on January 6, 1906. The parents of prosecutrix corroborated her as to the long-continued friendship that existed between prosecutrix and defendant, and also testified as to the preparations that she made to be married. They further testified that the defendant visited prosecutrix twice a week, took her to church and Sunday school and visited with her around the neighborhood. Other witnesses testified to the fact that prosecutrix and defendant were frequently in each other’s company; attended church, Sunday school, social gatherings and took buggy rides together. Mr. and Mrs. Henry Dunn testified to seeing prosecutrix and defendant together often, and that the two took supper with them and that they were joking defendant and prosecutrix about marrying. Mr. Dunn told defendant that he and his wife would give them some canned cherries when they married. As defendant and prosecutrix walked away together that evening, defendant said: “M'r. Dunn, when me and Minnie gets to ourselves, come and see us.” This was along in June, 1905. Miss Flossie Miller testified to a conversation that she had with defendant in which defendant invited her to come and see him and prosecutrix when they married; this conversation occurred the first Sunday in May, 1905. On the same day Miss Miller heard defendant say to prosecutrix that he would come and help her pick strawberries when they got ripe; and that they would put up1 enough to do them till strawberries come again. In the presence of Miss Ethel Henbest, defendant and prosecutrix talked about marrying and the room that they would occupy at the Hefley home. During the summer of 1905 defendant spoke to this witness about his corn crop, and said that prosecutrix was going to cook that corn the next winter. Defendant and prosecutrix went together to look at a house called the “Merritt place,” situated on the Henbest farm; and when they returned, Mrs. Henbest asked how they liked the house. Defendant said he liked it all right, but prosecutrix said that there were too many weeds down there. Defendant then asked the Henbest boy, five years of age, if he would not come and live with defendant and prosecutrix when they moved down there to that house. Mrs. Henbest saw defendant and prosecutrix in a buggy returning from the marriage of a brother of prosecutrix; in July, 1905, when Mrs. Henbest said, “I would not have been surprised if.it would have been you, but I was surprised it was Frank. ’ ’ Defendant said that they came pretty near getting married, but their clothes were not sufficient, but they would be all right by and by. Prosecutrix, her parents and several neighbors testified that during the time she and defendant were going together, prosecutrix kept company with no other young man. The good reputation of prosecutrix as a virtuous woman was established by a number of her neighbors, men as well as women.

The defendant introduced several witnesses, who testified that prosecutrix’s general reputation for virtue and chastity was- bad; and that her general reputation for truth and veracity was also bad. The defendant also introduced William Glenn as a witness, who testified that some five years previous to the time of testifying he was employed by the father of the prosecutrix to aid him in looking after his stallion and jack that he had upon his premises. This witness testified as to improper and inappropriate conduct on the part of the prosecutrix about the bam in watching the stock that was being looked after by the witness. Miss Lena Cantwell testified that she, Alfred Henbest and prosecutrix were sitting up with Frank Hefley, a brother of prosecutrix, during an illness that occurred some time prior to the alleged engagement; that William Glenn' had also been sitting in the sick room, bnt had gone to his own bed room', and. that prosecutrix then said that she was going to take off her clothes and go and get in bed with William Glenn. One witness for the defendant testified that Tom Van Zandt said that he had been accused of being responsible for the condition of prosecutrix, and if he was accused, he would go back and prove her bad character for the past ten years. This witness also testified that Yan Zandt told him that he went to the bed room where prosecutrix was sick, and that she told him that she was pregnant and two months gone. Defendant testified that he was never engaged to be married to prosecutrix at any time. He produced a letter, which he said was delivered to him by William Glenn, and which he said was in the handwriting of prosecutrix. This letter was read in evidence by defendant. Miss Cora Reed, one of defendant’s witnesses, also testified that in her opinion this letter was in the handwriting of prosecutrix. The letter above referred to, is as follows;

“Monday evening.

“My dearest one, as I got a letter from Lum Henry to-day I will write you a few lines, they want me to come and stay with them, he said he would give me $2.00 a week if I would, but I don’t want to go. Mama and Papa said to do just as I pleased and now I will leave it to you. I would have to go Friday, of course I need the money, as for that, but I don’t want to go. I will do just whatever you say, so if you say go I will go, and if you say not I won’t go, I would have lots of fun for there is just one kid, she is about 7 years old.

“They have two girl boarders, you knowT told you something about going down yonder, I asked Ma this morning and she said she didn’t care and she asked Pa and he said if I would help him shock the wheat I could go if I wouldn’t stay over three weeks, that don’t sound go od to me, would it to you ? I don’t want to go anyway but if I was to go I wouldn’t think about staying less than three months. It will take about (18) dollars to take me there and back. He had better give his wheat, to some one to get it cut as to pay all of my expenses but I will just stay at home with my little Jim, if you will allow me to call you mine. Oh, Jim I have something to tell you, what Ma said this monring, I will tell you when I see you, it will surprise you when you hear it. I would give $10 if this was Friday or Saturday. I don’t see how I am to pass off this week without seeing you. Well I guess I had better get to sewing. I am making- me a new calico dress, it is mighty pretty, it looks like some old woman’s dress. I will look like Mrs. Smith when I get it on.. Well S. H. I will close this foolishness for I guess you are hot and tired. Are you sweating like you did Sunday eve, ha, ha, Bye, bye, sweet one, yours, if you say so. “Maymb.

‘1S. H. I will send this by Charles and Lili if I see them pass and if I don’t I will send it by Talbert. ’ ’

In rebuttal the State proved that defendant’s witnesses, William Glenn and Miss Lena Cantwell, had bad reputations for truth and veracity, and that Miss Cantwell’s reputation for virtue and chastity was also bad. The State also proved that the general reputation of prosecutrix for truth and veracity, virtue and chastity was good. . Prosecutrix and Alfred Henbest testified in rebuttal, and denied that prosecutrix made the statement that she would pull off her clothes and go and get in bed with William Glenn; and prosecutrix denied going to the hay loft and denied seeing William Glenn with the stallion and jack in service. She admitted writing a part of the letter to defendant, but claimed that some word's had been changed and others added. Prosecutrix and Tom Van Zandt denied that prosecutrix called him into her bed room and that she told him she was pregnant and two months gone, and Van Zandt denied that he ever said that he eonld prove up the bad reputation of prosecutrix for the past ten years.

. At the close of the evidence counsel for appellant requested the court to give an instruction in the nature of a demurrer, directing the jury to acquit the defendant, which request was refused by the court, to which action of the court the defendant properly saved timely exceptions. The court then instructed the jury in conformity to its views as to the law applicable to the facts developed. We deem it unnecessary to here reproduce the instructions given by the court, or-those requested by the defendant and refused. Errors assigned applicable to the instructions given and those refused will be given proper attention during the course of the opinion. The cause was submitted to the jury upon the evidence adduced and instructions given by the court and they returned a verdict finding defendant guilty as charged and assessed his punishment at two years imprisonment in the penitentiary. Timely motions for new trial and in arrest of judgment were filed and by the court overruled. Sentence and judgment were entered in conformity to the verdict and from this judgment the defendant in due time and proper form prosecuted his appeal to this court and the record is now before us for consideration.

OPINION.

The record before us in this cause discloses numerous complaints of error as grounds for the reversal of this judgment. We will give such -attention to the errors assigned as their importance demands.

I.

Learned counsel for appellant assail the sufficiency of the information in this cause and insist that the trial court erred in overruling the motion in arrest of judgment .on the ground that" the cleric, J. C. Baker, did not use the seal of his office in attesting the affidavit of the prosecuting attorney to the information. It is ■sufficient to say upon this proposition that in the case •of State v. Forsha, 190 Mo. 296, it was expressly ruled •that “the omission of the seal of the court to the jurat does not invalidate the verification. The purpose of affixing the seal of the court to the jurat of the clerk •is in the nature of an attestation of the genuineness of -his signature; but the affixing of the seal is not an indispensable requisite to such jurat.” In State v. Pfenninger, 76 Mo. App. loc. cit. 317, it was said by the court: “The judge of a court having a clerk will take judicial notice of the signature of the clerk, and an attestation of such signature by a seal is not indispensable to satisfy the judge of the genuineness of his signature, and when the attention of the judge was called to the signature of the clerk by the motion to quásh in this casé, it will be presumed, in the absence of any evidence to the contrary, that he inspected the signature of the jurat and saw that it was genuine.”

II.

It is insisted by appellant that the court erred in permitting the prosecuting witness to take her baby and exhibit it to the jury while testifying. Upon that question we are unwilling to say that because the mother had her child in the court room when she was testifying would constitute reversible error. The representative of the State did not offer or make profert of the child, and we are unwilling to announce a rule of law; which goes to the extent of prohibiting a mother from taking her child into the court room. We are of the opinion that proper deference should be shown .the trial court, and the presumption must be indulged that it has exercised proper precaution in the administration of the law, and if in the judgment of the court the mere fact that the prosecutrix had her child with her at the time of testifying, was not calculated to endanger a fair and impartial trial hy the jury, we are unwilling to say that the judgment of the court in this respect was erroneous, and that such action by the mother, in having her child with her, was calculated to prejudice the minds of the jury. The ruling upon this contention must be adverse to the appellant.

III.

It is insisted that the court committed error in its refusal of instruction numbered 2 requested by defend: ant. This instruction was as follows:

“The court instructs the jury that when the. facts and circumstances such as usually attend an engagement of marriage are relied upon as corroboration, slight and indifferent particulars are not sufficient; nor will proof of attention merely be sufficient, unless from its duration and constancy, and from the acts, conversation and conduct of the parties, it reasonably carries conviction to the mind that an engagement of marriage exists, and that the attention is not merely such as might reasonably be expected without impropriety from a gentleman towards a lady whose society is agreeable and is not merely such as might reasonably be expected between two young people, who were having illicit intercourse with each other; and the corroboration of the prosecuting witness as to the promise of marriage, if any, whether, direct or positive, or consisting of facts and circumstances as stated above, must be something more .than sufficient to overcome the oath of a defendant and the legal presumption of his innocence.”

In our opinion there was no error in the refusal of this instruction. The subject of the necessity of corroboration of the prosecutrix in order to warrant a conviction was sufficiently covered by instruction numbered 4, in which the court told the. jury, that “you cannot find that the promise of marriage was made by the defendant to the prosecutrix on the testimony of the prosecutrix alone; to warrant you in finding that a promise of marriage was made by the defendant, the testimony of the prosecutrix as to such promise of marriage must be corroborated by other and independent testimony. This corroboration may be by the proof of statements of defendant in relation thereto, if any were made; preparation which the prosecutrix may have made for marriage, if any, or by the continuous courtship for such a period of time as in the course of ordinary affairs an engagement of marriage between the defendant- and prosecutrix would be presumed to exist. Such corroboration, of. whatever character it may be, must be strong enough, when taken in connection with the testimony of the prosecutrix, to overcome the oath of the defendant and the legal presumption of his innocence.” In addition to' that instruction, emphasizing the necessity of corroboration of the prosecutrix and the strength of the testimony required, the court in instruction numbered 7, which covered every essential element of the offense with which defendant was charged, told the jury that, “to support the charge of such promise of marriage, it is necessary that the evidence of the prosecutrix be supported by that of the witnesses or by corroboration of acts or circumstances which convince your minds of the truth of the testimony in that respect.”. While it is true that substantially instruction numbered 2. as requested by the defendant was given- by the court in State v. Meals, 184 Mo. l. c. 251, but an examination of that case will demonstrate that the propriety of that instruction was not discussed. The appeal in that case was by the defendant and that instruction was clearly more favorable than the defendant was entitled to; therefore, upon his appeal, he made no complaint as to that instruction. Therefore we take it that the giving of that instruction by the court and incorporating it in the statement in the appellate court, is by no means to be taken as an instruction that is without objection or as one that met the approval of this court. The court in instruction numbered 4, as given, correctly pointed out as to what corroboration must consist of, and finally very emphatically told the jury that “such corroboration, of whatever character it may be, must be strong enough, when taken in connection with the testimony of the prosecutrix, to overcome the oath of the defendant and the legal presumption of his innocence,” with the additional declaration of law, as incorporated in instruction numbered 7, which plainly told the jury that “it was necessary that the evidence of the prosecutrix be •supported by that of witnesses or by corroboration of acts or circumstances which would convince the minds of. the jury of the truth of the testimony in that respect.”

The appellant, in our opinion, has 'no right to complain that the subject of corroboration oí .the prosecutrix has not been fully covered, and most favorably so, by the declarations of law as heretofore indicated. While there might be a state of facts testified to in a case of this character which would demand. of the court an argumentative instruction similar to instruction numbered 2 requested by the defendant, yet in our opinion the facts in this case, in view of the •clear and full presentation of the subject of corroboration by the court in other instructions, did not authorize the court to give instruction numbered 2, or at least it was not reversible error to refuse it.

IV.

It is contended that the court erred in refusing instruction numbered 3 requested by the defendant. We have carefully read instruction numbered 3 and we deem it unnecessary to reproduce it, as it is simply a direction upon the same subject of corroboration of the prosecutrix, and what we have said as to the refusal of instruction numbered 2 is equally applicable to the refusal of instruction numbered 3. We simply repeat that the subject of corroboration of the prosecutrix was fully and correctly covered by instructions given by the court.

y.

It is insisted that the court committed error in its refusal of instruction numbered 5 requested by defendant. That instructión is as follows:

“The court instructs the jury that if they believe from the.evidence that the prosecuting witness, Mayine P. Hefley, had sexual intercourse prior to the 30th day of March, 1905, with the defendant or any other person or persons, then you will acquit the defendant, and in this connection you are instructed that’ it is not necessary to show by direct evidence that the female had illicit intercourse prior to said date, but it may be shown, like all other facts, by circumstances. ’ ’ It is sufficient to say upon this insistence that instruction numbered 5 does not correctly declare the law, and there was no error in the court refusing to give it. This instruction simply asserted'the legal proposition, without qualification, that if the prosecutrix at any time prior to March 30, 1905, had sexual intercourse with the defendant or any other person or persons, this entitled the defendant to an acquittal. It was expressly ruled by this court in State v. Sharp, 132 Mo. 165, that there was such a thing as reformation in a female, and this court held that the trial court very properly modified the instructions in that case similar to instruction numbered 5 now under consideration, holding that if the prosecutrix had sexual intercourse with any other person than the defendant prior to the alleged seduction, the defendant was entitled to go acquit, “unless you further find that at the time of the alleged seduction she was following the path of virtue and rectitude.” It was also ruled in the Sharp case that, after all, the question of paramount importance is, was the prosecutrix of good repute at the time of the’commission of the alleged offense? and that is “what the people of her acquaintance generally say of her in this regard; that is, the general credit for chastity which she hears among her neighbors and acquaintances.” [State v. Bryan, 34 Kan. 63.] And an instruction fully recognizing and embodying that principle was approved by the court in that case. It therefore follows that instruction numbered 5 requested by the appellant, without embracing the qualification as recognized in the case of State v. Sharp, supra, did not properly declare the law, and after all a careful examination of the instructions as. given by the court fully demonstrate that the subject of instruction numbered 5 requested by defendant was fully covered by the ’ instructions given.' ' Theré was no error in the refusal of instruction numbered 5.

VI.

It is next very earnestly insisted that the court committed reversible error in the refusal of instructions numbered 6, 7, 8 and 9 requsted by the defendant. These instructions practically treated of the same subject and will be considered together. They were as follows:

“6. The court instructs the jury that although . you may believe that the defendant had carnal intercourse with the prosecuting witness, Mayme P. Hefley, yet, if you further find that she consented to said connection in consideration of a promise, if any, then and there made to her by defendant that he would marry her, or if she consented to said intercourse without the practice by defendant of arts or blandishments upon said prosecuting witness and she yielded to satisfy her passions, then you will acquit the defendant.

“7. If the jury find from the evidence that the defendant had illicit connection with the prosecuting witness, Mayme P. Hefley, under promise of marriage, but further find that there was UO' seduction within the meaning of the word as already defined, then you will find the defendant not guilty.

“8. The court instructs the jury that if you shall find and believe from the evidence in- the case that the defendant had carnal intercourse with Mayme P. Hefley, and that she yielded to him on account of the promise of marriage, if any, and without the practice by him of arts or blandishments, then, even though she may have been of good repute, she was not seduced, and the jury should acquit the defendant.

“9. If you shall believe from, the evidence that the defendant had carnal intercourse with the said Mayme P, Hefley, and that she yielded to him solely on account of a promise of marriage, without the practice by him of arts and blandishments, then, though she may have been of good repute, she was not seduced, and you must acquit the defendant.”

• It is sufficient to say of the error complained of in the refusal of the instructions above quoted, that there was no error in the refusal of them for the reason that the subjects treated of in those instructions were fully and fairly presented by instruction numbered 7 given by the court. This instruction so clearly, fully and fairly presented the law of this case that we will be pardoned for here reproducing it. It was as follows:

“7. The court instructs the jury to authorize a conviction in this case, you must believe and find not only that said Mayme P. Hefley was at the time of the seduction, if any, a woman of good retrate in the community in which she lived, and that she was then single and unmarried and under twenty-one years of age, ■ and that defendant did in fact seduce her, but you must believe and find from tbe evidence in the ease that defendant accomplished this under a promise to marry her; that she believed his promise to be .in good faith, and that so believing she accepted it and consented to ■ become and by him be made his wife, and that subsequently to such promise, if any, she was seduced and debauched by defendant; and to support the charge of such promise of marriage, it is necessary that the evidence of the prosecutrix be supported by that of the witnesses or by corroboration of acts or circumstances which convince your minds of the truth of the testimony in that respect. A female is said to be debauched within the meaning of that term, as used in this instruction, when, by arts and blandishments, she is deceived, corrupted and drawn aside from the right path. ■ She is said to be ‘debauched’ within the meaning of that term, as used in the instruction, when she is carnally known. Every illicit connection is not seduction. It cannot be said that a female is drawn aside from the path of virtue unless she is honestly pursuing that path when approached. If her mind is corrupt and polluted by lewd thoughts, and she is ready to submit to improper embraces, as opportunity offers, from her own lustful propensity, and without any arts or blandishments of him with whom she has sexual intercourse, in such case she cannot be said to be seduced by the party with whom she has improper sexual relations. If the jury find from the evidence that the defendant had illicit connection with said Mayme P. Hefley under or by promise of marriage, but further find that there was no seduction within the meaning of the word, as already defined, they will find the defendant not guilty.”

As to this instruction it is sufficient to repeat what this court said in State v. Meals, supra, when discussing a similar instruction in a. case of this character, that is, this instruction “expressly requires the jury to find! every essential fact necessaiy to constitute the offense defined by the statute. It is a clear and full presentation of the law applicable to this case, and meets all the requirements of it, as indicated by the able and exhaustive review by the learned judge in State v. Reeves, 97 Mo. 668.”

VII.

We have examined the disclosures of the record alleging error assigned in respect to the polling of the jury after the return of the verdict. It is only necessary to say that in our opinion there is no merit in that complaint.

VIII.

It is urged by counsel for appellant that the court committed error in the exclusion of the testimony offered to prove the defendant’s reputation in the neighborhood in which he resided for truth and veracity. This testimony was properly excluded for the reason that the defendant’s reputation for truth and veracity had not been assailed, and the mere fact that there was a conflict between his testimony and that of the prosecuting witness, is not in contemplation of law such an attack upon his reputation for truth and veracity as would warrant the court in admitting the testimony as to such reputation, for the purpose of bolstering up the testimony of the defendant, when such reputation had been in no way assailed. As applicable to this proposition we know of no rule of law which makes any distinction between the defendant as a witness and any other witness in the case; therefore we take it that the rule as announced in State v. Thomas, 78 Mo. 327, is decisive of this question.

IX.

We have fully analyzed and considered instruction numbered 5 and those given by the court, which is made the basis of complaint of error on the part of the court in giving such instruction. Instruction numbered 5 simply in different language embodies the principle as announced in instructions numbered 4 and 5 given by the court in State v. Sharp, supra. Instruction numbered 6 was simply a precautionary instruction which told the jury that the testimony as to the general reputation of the prosecutrix as to truth and veracity, should only be considered by them in determining what weight should be given to her testimony as a witness, followed by the announcement of the legal presumption that the fact, if proven, that her general reputation for truth and veracity was bad, would be no justification for the defendant in having seduced her, if the jury believe from the evidence that he did seduce her. We are unable to discover any valid legal objection to these instructions and there was no error in giving them.

X.

This brings us to the final contention of the appellant, that the testimony as introduced was insufficient to authorize a conviction, and that the instruction in the nature of a demurrer to the evidence should have been given by the court as requested by the appellant. It is unnecessary to cite the repeated announcements of the rule by this court that it will not undertake to weigh conflicting testimony developed upon the trial. The witnesses testifying were before the jury; their conduct and manner could be observed, and presumably all the tests as to their credibility were applied. Their testimony was detailed in the presence of the trial judge, and under his supervision, and it is clear to our minds that the. trial court and jury are in a far better position to determine the credibilty of the witnesses and the weight to be attached to their testimony than the appellate court, which is confined to.the disclosures of a lifeless record embracing the evidence detailed in the case. We have carefully considered in detail all of the testimony embraced in the voluminous record before us and find that this case is no exception to the general rule that the testimony is conflicting. If the testimony as introduced by the State is true, then in our opinion it furnishes full support to the conclusions reached by the jury. On the other hand, if the testimony as introduced by the defendant is true, there should have been an acquittal. But at last it was the exclusive province of the jury to pass upon "the credibility of the witnesses as well as the weight of the testimony, and as has frequently been, said by this court, we are unwilling to retry this case upon the facts as disclosed by the record.

We have given expression to our views upon the legal propositions disclosed by the record before us, which results in the conclusion that there was evidence sufficient to support the verdict of the jury, and finding no reversible error in the trial of the case the judgment should be affirmed, and it is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    THE STATE v. HERMAN BROWN, Appellant.
    Division Two,
    November 19, 1907.
    NO BILL OF EXCEPTIONS. Where no bill of exceptions is filed, and the record proper is free from error, the judgment will be affirmed.
    Appeal from Dade Circuit Court. — Ho». L. W. Shafer, Judge. *
    Affirmed.

      Herbert S. Hadley, Attorney-General, and Rush C. Lake, Assistant Attorney-General, for the State.
   GANTT, J.

The defendant was prosecuted in the. Dade Circuit Court for an assault with intent to ravish. .He was duly arraigned, tried and convicted' and sentenced to the penitentiary for three years. He appealed to this court but filed no bill of exceptions. We find no error in the record proper, and the information is sufficient, and accordingly the judgment of the circuit court is affirmed.

Fox, P. J., and Burgess, J., concur.


text:
    THE STATE v. GEORGE B. REED, Appellant.
    Division Two,
    November 19, 1907.
    APPEAL DISMISSED. A formal dismissal of the appeal by defendant and bis attorney leaves tbe judgment of tbe circuit court in full force and effect. ¡

    Appeal from Butler Circuit Court. — How. W. N. -Evans, Special Judge.
    Appeal dismissed.
   GANTT, J.

A prosecution was commenced by the prosecuting attorney of Butler county by information against the defendant for an assault with intent to Mil Judge Jesse C. Sheppard, on December 3, 1906. Judge W. N. Evans of an adjoining circuit was called in to try the cause, on account of the disqualification of Judge Sheppard. Defendant was duly arraigned and pleaded not guilty, was tried and convicted and his sentence assessed at two years in the penitentiary and he was sentenced accordingly. From that sentence, he appealed to this court but after the cause had been briefed for the State the defendant and his attorney filed a formal- dismissal of his appeal, thus leaving the judgment of the circuit court in full force and effect.

Fox, P. J., and Burgess, J., concur.


author: BURGESS, J.

text:
    THE STATE v. DORRIS ARTHUR, Appellant.
    Division Two,
    November 19, 1907.
    LARCENY: Sufficiency of Evidence. Evidence held sufficient to support the verdict finding defendant guilty of larceny.
    Appeal from' Crawford Circuit Court. — How. L. B. Woodside, Judge.
    Affirmed.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    There was ample evidence of the guilt of the defendant; in fact, it was overwhelming and uncontradicted.
   BURGESS, J.

On the 13th day of December, 1906, the prosecuting attorney of Crawford county filed an information, duly verified, charging the defendant and one Paul Arthur with burglary and larceny, the alleged burglary and larceny consisting in the breaking into the house of H. D. Yeary and stealing therefrom eight mink hides, one red fox hide, eleven ’coon hides and five opossum hides, the property of one Joseph McIntosh, and of the value of forty dollars. A severance was granted, and the defendant was tried at the February term, 1907, of the circuit court of said county, the trial resulting in the acquittal of the defendant on the charge of burglary, and his conviction of the larceny, the jury finding that the stolen property was of the value of thirty dollars. The punishment assessed was three years in the penitentiary. Defendant’s motions for a new trial and in arrest of judgment having been overruled by the court, he appealed.

The evidence on the part of the State tended to prove that the prosecuting witness, Joseph McIntosh, was a school teacher, and on the 12th day of December, 1906, boarded with Mr. and Mrs. William Vaughn. The Vaughns occupied a dwelling house that was also occupied by Mr. and Mrs. H. D. Yeary, at Wilson’s Mill, Crawford county. McIntosh was the owner of a large number of valuable hides which he kept hanging on the walls of his room. About 7 o’clock, p. m., of said day, McIntosh left his room, closing the doors and windows, and leaving a lamp burning, and went to the. school house, less than a quarter of a mile distant, where religious services were being conducted that evening. The Vaughn and Yeary families also attended said meeting, arriving at the school house some twenty minutes later. About 9 o’clock Mr. McIntosh returned to his home, reaching there before the other occupants, and found the door to his room open and eleven ’coon, eight mink, one red fox and five opossum hides missing. These hides he valued at thirty-five dollars. On the 14th day of December, two days after the hides were taken, McIntosh found all of them at the hide and poultry store of R. E. Johns, at St. James, in Phelps county. Johns testified that the defendant and Albert Earney came to his place of business about eleven o ’clock on December 13, 1906, and that defendant sold him eleven ’coon, eight mink, one red fox and five onossum hides for twenty-five dollars and fifty cents, which hides were afterwards identified by McIntosh as his, and were produced in court at the trial. Other witnesses testified that they saw the defendant, in company with Albert Earney, at the school house on the night of December 12, 1906; that they observed him looking in at the window, but did not see him go inside. At that time Mr. McIntosh and the Vaughns and Yearys were in the school house. Albert Earney testified that he went with the defendant to the school house on the night in question, both of them remaining outside, and that' in a little while the defendant left, saying to witness that he was going .home. A few minutes afterwards Earney left for home,, going along- the same road taken by defendant, which road led by the Teary house where McIntosh ■lived. "When Earney got near the house he saw the defendant go in the gate, step up on the porch and enter the door. He waited a few minutes and saw the defendant come out of the house, carrying a large bundle, and saw him climb over a fence, taking the bundle with him. Earney then walked on towards his home, which was about three miles from the school house, and when about a quarter of a mile from home he again met the defendant. The latter remarked that the night was so dark he could not see to. cross the river, whereupon Earney invited defendant to stay all night with him, which defendant consented to do. The two then went to the home of Earney’s father, where they spent the night. Next morning, in the presence of other members of the family, defendant employed Earney to drive him to St. James, saying that he was bound to go to St. James that day for the purpose of renting a room there for his family. The two drove in a buggy, and when about a quarter or a half a mile from home the defendant got out of the buggy, went into the brush about ten steps from the road, soon returning with a bundle of hides which he placed in the buggy, stating to Earney that they were McIntosh’s hides, but that he had located them. After driving to St. James, the defendant tried to sell the hides to a Mr. Pinto, a hide dealer in St. James, who would not. give him the price he asked, and the defendant after-wards, about eleven o’clock of that day, sold the hides, to R. E. Johns for twenty-five dollars and a half.

The defendant did not testify in his own behalf, but introduced some evidence which tended to contradict some of the statements made by Earney, the State’s witness, who it seems had been arrested and jointly charged with the defendant with the commission of this offense. Two witnesses, John Becknell and James Gorman, testified that they saw Earney the day he was arrested, and that he said that he went to the school house on the night in question, in' company with the defendant; that the defendant soon left, and that he (Earney) did not see him again until he met him on Cedar Bluff, about a quarter of a mile from the Earney home. On cross-examination, Mr. Gorman, who arrested the defendant, testified that at the time he arrested him the defendant said that he supposed he was accused of taking those hides, but that he had nothing to do with them.

The defendant is not represented in this court. We ha. e, however, gone through the record with much care, and have been unable to discover any error in it. The evidence conclusively proved his guilt. He did not. testify in his own behalf, nor does he claim that he did not have a fair and impartial trial. As the instruc-, tions presented the case fairly to the jury, and the record seems to be free from error, the judgment is affirmed.

All concur.


text:
    THE STATE v. C. M. PARNELL, Appellant.
    Division Two,
    November 19, 1907.
    APPEAL: New Trial: Overruling Motion: No Exception. Where defendant does not object or except to the action of the court in overruling bis motion for a new trial, there is nothing for review on appeal but the record proper, and if that is free from error, the judgment will be affirmed.
    Appeal from Jasper Circuit Court. — How. Hugh Dabbs, Judge.
    Affirmed.

      Clay & Sheppard and T. C. Taddock for appellant.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    This court cannot review anything* except the record proper, as defendant failed to save any exceptions to the overruling of the motion for a new trial. State v. Irwin, 171 Mo. 558.
   FOX, P. J.

This cause is brought to this court by appeal on the part of the defendant from a judgment of conviction in the Jasper Circuit Court for murder in the second degree. On the 13th of September, 1906, the prosecuting attorney of Jasper county filed an information, duly verified, charging the defendant with murder in the first degree. The name of the party charged to have been, killed was Peter Mathia; the date of the homicide was the — day of July, A. D. 1906, and the weapon used was a shotgun. At the October term, 1906, the defendant was arraigned, entered his plea of not guilty, was tried-and convicted; his punishment was assessed at twelve years in the penitentiary.

At the very threshold of the consideration of this case our attention is directed to the state of the record, in which it is disclosed, that there were neither objections or exceptions to the action of the court in overruling the motion for new trial filed by the appellant after the return of the verdict by the jury of guilty.

It is much more satisfactory to appellate courts in the investigation of causes to pass upon the merits of the case. With this inclination we have searched diligently for a basis upon which to pass upon the questions presented in tbe brief of learned counsel for appellant. The record discloses the filing of a motion ■ for new trial and tbe reasons assigned are embraced in the record, but there is an entire absence of any objections or exceptions to the action of the court in making the order overruling such motion; therefore, upon, the well-settled rules of law applicable to this question there is nothing before us for review in this cause except the record proper. As was ruled by this court in State v. Irwin, 171 Mo. loc. cit. 560; where it was said that, “it is well settled that the errors complained of in this case must be brought to the atten-' tion of the trial court in a motion for a new trial, and before the motion can be madé any part of the record, there must be proper exceptions to the action of the court in overruling it, made in due time, and the exceptions must be disclosed in the record. [State v. Noeninger, 108 Mo. 166; State v. Reed, 89 Mo. 168; State v. Mitchell, 98 Mo. 657; State v. Harvey, 105 Mo. 316.]”

Proceeding to the consideration of the record proper, we find that the information charges .the defendant with murder of the first degree. The sufficiency of this information is nowhere assailed, and upon a careful reading of it we find that it sufficiently charges the offense. The defendant was convicted of murder of the second degree, which is necessarily embraced in the charge of the higher grade of crime. The jury were sworn to try the case; the return of the verdict and the form of the verdict seem to have been in every way regular, and the sentence and judgment of the court substantially conform to the requirements of the statute. Being unable to discover any error in the record proper, the judgment of the trial court should be affirmed, and it is so ordered.

All concur,


text:
    THE STATE v. AMBROSE CASEY, Appellant.
    Division Two,
    November 19, 1907.
    1. LARCENY AND EMBEZZLEMENT. While larceny and embezzlement have much in common, for the purposes of prosecutions they are uniformly recognized as distinct offenses.
    2. LARCENY: Trespass. In every larceny there must be a trespass in the original taking of the property; that is, the felonious intent must have existed at the time of the taking. If that intent is absent, the crime is not larceny, and a conviction of larceny cannot stand.
    3. EMBEZZLEMENT: No Trespass. Embezzlement is the fraudulent and felonious appropriation .of. another’s property by a person to whom'lt'has' been entrusted, or into whose hands it has lawfullycome.

      4. -: Accessory: Convicted of Larceny. Where the principal in the crime was guilty of embezzlement, an accessory before the fact in that embezzlement, who became the custodian of the embezzled goods lawfully in the principal’s possession and assisted him in feloniously appropriating them and selling them, cannot be convicted of larceny. The principal being guilty of embezzlement, so is the accessory.
    6. -: -: -: Receiving Embezzled Goods. A driver for a transfer company, with power to accept goods for the company, receiyed a large quantity of tobacco from a railroad company in Bast St. Louis to be delivered to a railroad company in St. Louis. He drove his wagon into the transfer company’s barn, made a report of all other hauls by him made through the day, and went that evening to defendant’s saloon and arranged with him to sell the tobacco, and the next day placed it in a room defendant had rented for the purpose. Held, that the driver was lawfully in possession of the tobacco as the employee of the transfer company when he hauled it into the barn and left it there, and his possession was still lawful on the next day when he took it from the barn and placed it in the rented room, and his crime was, therefore, clearly embezzlement; and defendant, who was a party to his crime in unlawfully appropriating it, on the evening before and the next morning, and who sold it and received the money, knowing it had been stolen, was also guilty of embezzlement, and his conviction of grand larceny cannot stand.
    6. CONVICTION: Of Larceny: Acquitted of Embezzlement. Where the information in the first count charged defendant with grand larceny, and in the second count with embezzlement as an accessory with a driver who feloniously appropriated goods delivered to him to be hauled to the consignee, and defendant is acquitted on the second count and convicted on the first, he must be discharged, if his crime was embezzlement and not larceny.
    Appeal from. St. Louis City Circuit Court.— Hon. Moses N. Sale, Judge.
    Reversed.

      G. Orriok Bishop and Henry M. Walsh for appellant.
    (1) The court undoubtedly erred in instructing the jury upon the evidence submitted to them that the defendant was not guilty of embezzlement, but that they might from the facts proved' find him guilty of larceny. Assuming that the evidence in the case tended to show that the defendant was guilty of either offense charged in the information, it was certainly the offense of which he was found not guilty; or, again assuming that the evidence showed that the defendant was either a principal in the second degree or ’an accessory before the fact, he was only guilty of the offense of which Formaneck was guilty, and that was only embezzlement, if anything. State v. Fink, 186 Mo. 50. (2) The position held by Formaneck as a driver for the transfer company was not that of a mere custodian of the goods hauled by him. He was entrusted with greater powers than a mere custodian of goods delivered on some person’s order; he was an integral part of the transfer company’s system. From the day he entered the employ of the company he was their agent to accept goods at certain places, and to receipt for the goods in the name of the transfer company. There was no change in the character of custody of the tobacco from the moment when Formaneck secured the shipments peaceably (that is, without trespass), and as a representative of the transfer company,, up to the moment the goods were delivered to Fuelscher. The confidence reposed' by the transfer company in Formaneck on the 2d day of May, 1906, was the same confidence as on the 1st day of May, 1906; on the 1st day of May, 1906, Formaneck was empowered to receive the tobacco from the Southern >Railroad Company and load it on his wagon; on the 2d day of May, 1906, he was empowered to hitch to the ¡load, which was still under his control, and to deliver according to Ms agreement. The conversion was not when he drove away from the warehouse in the morning, but after he had delivered a part of the shipment and then retained the balance. Until the property was delivered into the stable for Fuelscher there was no wrongful conversion. (3) “If the servant, instead of delivering the property (received for his master) to his master or to another, as required by his duty, pledges it for his own debt; or runs away with it; or neglects or refuses to account for it; or otherwise wrongfully diverts its course towards its destination to make it his own; he embezzles it.” 2 Bishop, New Criminal Law, sec. 373; Honig’s Case, 78 Mo. 2491; Dashman’s Case, 153 Mo. 454.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The evidence unquestionably established the fact that the defendant was guilty of larceny. The tobacco was lawfully in the possession of the St. Louis Transfer Company, and that company was properly termed, the owner thereof, and the defendant procured said property, according to the State’s testimony, for the purpose of permanently depriving the owner thereof and converting the same to his own use. In a case, similar to this one, Judge Fox, in delivering the opinion of this court, cited various authorities and held that the defendant, who was guilty of obtaining a large quantity of shoes from the possession of the Big Four Railroad, was guilty of larceny. After such an exhaustive and thorough discussion of this subject by Judge Fox, counsel for the State do not feel it necessary to further argue this point, as said case settles the question. State v. Mintz, 189 Mo. 268. (2) Counsel for the State insist that there was ample evidence to show that the defendant was guilty on the crime of larceny, in connection with George Franklin. Franklin was the driver of the St. Louis Transfer Company, was lawfully entrusted with the tobacco in question, and was in duty bound to deliver the same at its proper destination. If Franklin and the defendant arranged or designed a plan by which said tobacco should not be delivered at its proper destination, but sold to another party, or disposed of in any other manner, then the defendant and Franklin were both guilty of larceny. The undisputed evidence showed that Franklin received the tobacco in East St. Louis and delivered it in his wagon at the office and stable of the St. Louis Transfer Company at 3d and Poplar streets, in the city of St. Louis, where the tobacco remained until! the next morning about seven o’clock. At that time, >! Franklin took charge of the wagon and team, which wagon was still loaded with tobacco, and drove away, delivering a part of said tobacco at the Missouri Pacific freight office, but taking the greater portion of it to the defendant’s saloon, and, under directions of the defendant, turning it over to the witness Fuel-" scher. The evening before, about nine o’clock, the de-, fendant made arrangements for the sale of that very) tobacco^ to the witness Fuelscher, made divers false \ statements in regard to where he had procured the) tobacco, described it and agreed to deliver it to Fiielscher the next morning. In pursuance to that agree-¡ ment, the tobacco was at the defendant’s saloon the next morning and delivered to Fuelscher by Franklin, and the defendant received part pay therefor. This evidence was amply sufficient to justify the jury in arriving at the conclusion that the defendant and Franklin conspired together for the purpose of stealing said tobacco, and that said agreement or conspiracy < was entered into prior to the time when Franklin got the tobacco ' at the stable of the St. Louis Transfer j Company, and, therefore, prior to the time when Franklin came lawfully into the possession of said tobacco. Such an agreement between the driver and the defendant, entered into prior to the time when the driver got possession of the tobacco, brings the case clearly within the ruling of this court in the Mintz Case, supra.
   GANTT, J.

— On June 12, 1906, the assistant circuit attorney of St. Louis filed an information, duly verified, charging the defendant, in the first count, with the larceny of eighty-nine cases of Bull Durham smoking tobacco and fifteen butts of seven pounds each of Piper-Heidsieck chewing tobacco, of the value of fifteen hundred dollars; and, in the second count, with aiding, assisting and abetting one Louis Formaneck, alias George Franklin, with the embezzlement of said /described property, from the St. Louis Transfer Com[pany, a corporation. The date of the alleged offense was May 2, 1906. At the December term, 1906, the defendant was tried and convicted of grand larceny. The punishment was assessed at two years in the penitentiary. The jury found the defendant not guilty under the second count of the information. After filing formal motions for a new trial and in arrest of judgment, which were overruled, the defendant appealed.

The State’s evidence tended to prove that the St. Louis Transfer Company was a corporation with its principal office of business in the city of St. Louis, and engaged in the transfer business in St. Louis and East St. Louis. On May 1, 1906, a man who went by the name of George Franklin, but whose real name was Louis Formaneck, was one of the drivers of the St. Louis 'Transfer Company, driving wagon number 33, and on the said day drove one of their wagons to the freight depot of the Southern Railroad Company at East St. Louis and received from the agent of said railroad eighty-nine cases of Bull Durham tobacco and fifteen butts of seven pounds each of Piper-Heidsieck chewing tobacco, for which he gave a receipt, signed George Franklin. The freight agent instructed Franklin, alias Formaneck, to take said tobacco to the Missouri Pacific freight depot, in St. Louis. This tobacco was then of the reasonable market value of $1,500. Franklin, alias Formaneck, reported at the office and stable of the St. Louis Transfer Company, which was located at Third and Poplar streets, at five o’clock that evening, and turned in to Daniel Sullivan, the clerk of said office, what was called a “red sheet,” which purported ]■' to give the amount of goods hauled and the number | of loads, from whom received and to whom delivered on that day. - The tobáceo in question was never deljvered to the Missouri Pacific Railroad Company^Put was taken, the next morning', by Franklin, alias Formaneck, to a saloon, which was operated by the defendant on Broadway 'and Sixth street in said city, and turned over to the defendant. The wagon driven by Franklin, alias Formaneck, was one of the usual transfer wagons used by the St. Louis Transfer Company, and had the name of said company painted in plain letters in two places thereon. Between, eight and nine o'clock on the evening of Mav'l, the defendant telephoned to a tobacco dealer named Fuelscher, and asked him to come to the defendant’s saloon that night, saying that he had some tobacco that Fuelscher could probably use. Fuelscher walked over to the saloon and the defendant took him to one side where no one present could hear him talk, and said, “I have about one hundred boxes of 25-pound boxes of Bull Durham and I will take one thousand dollars for them.” Fuelscher declined to buy, saying that he did not have the money to pay for the same. The defendant then offered to let him handle it on commission, and Fuelscher asked him the price. The defendant hesitated and did not seem to know just what was the right price to put upon it, and asked Fuelscher what was the present value of Bull Durham on the market. When Fuelscher told him it was fifty-nine cents, the defendant then agreed to sell him this lot for forty cents per pound on commission. Fuelscher then agreed to buy it if it was all right and the defendant walked out and showed him that it was still loadejpon a wagon! on Sixth street. Fuelscher made arrangements with! Crone Brothers, who operated a livery stable and undertaking establishment, to store this tobacco' in one of their rooms; this arrangement was made the next morning. The next morning Franklin, alias Forman- ; eck, drove one of the St. Lonis Transfer wagons around \to Crone’s livery bam and unloaded eight-nine cases !pf Bull Durham smoking tobacco and fifteen butts of seven pounds each of Piper-Heidsieck chewing tobacco. The defendant had previously told Fuelscher that he had ninety-nine cases of Bull Durham tobacco. As fast as Fuelscher could sell this tobacco, he did so, and accounted to the defendant for the proceeds; the defendant urged him several times by. telephone to make sales as fast as possible and send him some more money. In due course of time the Southern Railroad Company was informed of the non-delivery of this tobacco, and a tracer was started and the St. Louis Transfer Company informed of the non-delivery thereof. The driver Franklin, alias Forman eck, was arrested, and the defendant telephoned to Fuelscher to come to his saloon to see him at once. When Fuelscher visited the defendant, the defendant said that that transfer driver had been “pinched” for seiling that, tobacco. Fuelscher expressed surprise, and wanted to know if there was anything crooked about the transaction, to which the defendant replied that there was not; that he had purchased the same at an auction sale, a wreckage sale, from the railroad company, and bought it very cheap: He further said that this driver would not “squeal” on them. This conversation occurred Saturday night, June 9', 1906. Fearing that something was wrong, Fuelscher visited the offices of the St. Louis Transfer Company on Monday morning and told them of his purchase of the tobacco from the defendant on the night of May 1, 1906. The police officer was sent to see the defendant at his saloon, and, on asking about the tobacco, he denied all knowledge of any purchase by him or sale by him to Fuelscher. The defendant was arrested and taken before the chief of detectives, Desmond, at his office, and was informed that Fuel-sober had told of the purchase of the tobacco from the defendant and had receipts from the defendant for the payments therefor. The defendant at first denied his signatures, but afterwards admitted that he had given Fuelseher receipts to the amount of $250-, but that the same was for borrowed money which he had loaned Fuelseher. On being told later on that Fuelscher had receipts amounting to $350, the defendant said that the additional $100 was for interest on the $250'. The defendant later on saw Fuelseher and asked Fuelseher to join with him in making that statement. Fuelseher, however, denied the borrowing of any money from the defendant, and produced the receipts and testified that they were for payments made by him to defendant for tobacco. The receipts were dated May 2nd, May 5th, May 8th, May 12th, May 19th, May 23rd and June 2nd, and purported to be on account of Durham tobacco. The tobacco that Fnelscher then had on hands and all that he could get of the eighty-nine cases, he returned to the St. Louis Transfer Company, and paid said company a part of the value of what he had sold.

The defendant testified that George Franklin, alias Louis Formaneck, came to his saloon on the 1st or 2nd of May and represented to him that he had some Bull Durham smoking tobacco for sale, and would like to sell the defendant a wagon-load of it. The defendant declined, saying that he did not sell five pounds of Bull Durham in a month, when Franklin asked him if he knew anybody who- would buy it. The defendant suggested Fuelseher, and Franklin asked defendant to telephone Fuelseher and see if he would buy it. Defendant asked Franklin where he got so much tobacco, and Franklin said he bought it in salvage, that the tobacco was supposed to be slightly wet, as it had come out of a freight wreck. At the time defendant recommended Fuelseher he remarked to Franklin that the only drawback was that Fuelscher was not worth any money.

In a little while, Fuelscher came to defendant’s saloon and had a talk with Franklin and then applied to defendánt for a loan of $250 to bind the sale. The defendant declined to loan any money, but Fuelscher promised to give him one hundred dollars for making the loan, so the defendant concluded to do so. The defendant then went up stairs and talked to his wife, who had the money and who objected at first to making the loan. She finally concluded to do so and gave the defendant $250 in cash, which he straightway handed to Fuelscher. The defendant denied all knowledge of the tobacco being stolen, but did not deny his signature to the receipts offered in evidence, neither did he deny the contradictory and false statements made by him at the time of and after his arrest. The defendant offered one Collinson, who was his bartender at the time, and who testified that he saw the defendant get the money from the defendant’s wife and loan the same to Fuelscher. Another gentleman testified in behalf of defendant that he was in defendant’s saloon at the same time and saw the defendant get some money from his wife and loan to Fuelscher; but neither knew the terms upon which the same was loaned. The defendant’s wife, for some reason, did not testify.

Other facts may be noted in the further consideration of the cause, in connection with the instructions of the court, and the assignments of error.

I. The pivotal question in this case is, conceding that the evidence in the case was sufficient to establish the guilt of the defendant of either of the offenses charged in the information, of which was he guilty, grand larceny or embezzlement? The distinction between larceny and embezzlement is one fully recognized in the criminal law of this State as well as in England. While the two offenses have much in common, for the purpose of prosecution they have uniformly been regarded as distinct. In every larceny there must be a trespass in the original taking of the property; that is, in larceny the felonious intent must have existed at the time of the taking. [State v. Shermer, 55 Mo. 83, and cases cited; State v. Ware, 62 Mo. l. c. 602.] Whereas embezzlement is the fraudulent and felonious appropriation of another’s property by a person to whom it has been intrusted, or into whose hands it has lawfully come.

Section 1912, Revised Statutes 1899, defines the offense in these words: “If any agent, clerk, apprentice, servant or collector of any private person, or of any co-partnership, except persons so employed under the age of sixteen years, or if any officer, agent, clerk, servant or collector of any incorporated company, or any person employed in any such capacity, shall embezzle or convert to his own use, or shall take, make way with or secrete, with intent to embezzle or convert to his own use, without the assent of his master or employer, ■any money, goods, rights in action, or valuable security or effects whatsoever, belonging to any other person, which shall have come into his possession or under his care by virtue of such employment or office, he shall, upon conviction, be punished in the manner prescribed by law for stealing property of the kind or the value of the articles so embezzled, taken or secreted.” And section 1916, Revised Statutes 1899', provides: “Every person who shall buy, or in any way receive, any goods, money, right in action, personal property or any valuable security or effects whatsoever, that shall have been embezzled, converted, taken or secreted contrary to the provisions of the last four sections, or that shall have been stolen from another, knowing the same to have been so embezzled, taken or secreted, or stolen, shall, upon conviction, be punished in the same manner and to the same extent as for the stealing the money, property or other thing so bought or received.” In the case at har, as already said, there are two counts, one charging the defendant with grand larceny of the tobacco, and the other charging that one Louis Formaneck being then and there the agent and servant of the transfer company, then and there by virtue of such employment, did have in his possession and under his care and control the said tobacco, did unlawfully, feloniously and intentionally embezzle and convert to his own use, without assent of the said transfer company, the said tobacco with the unlawful, felonious and fraudulent intent to deprive the owner, the said transfer company, of the use thereof, and that the defendant, Casey, then and-there feloniously was present aiding, abetting and assisting the said Formaneck, the said embezzlement to do and commit. It seems too clear for controversy, that if defendant was guilty either as a principal in the second count, or as an accessory before the fact, he was only guilty of the offense of which Formaneck was guilty. In State v. Fink, 186 Mo. 50, Fink was accused and convicted of the offense of receiving stolen property knowing the same to have been stolen. It appeared in that case that a driver named Wheeler was the employee of the transfer company, whose duties were like those of Formaneck in this ease, to drive his wagon to the railroad depots in East St. Louis and there receive freight consigned to St. Louis and deliver -it to the various consignees in St. Louis. He received a large quantity of cigars from the Big Four Railroad Company in East St. Louis to be delivered in St. Louis, and instead of delivering the cigars to the consignees, he took them to the defendant Fink, who there received them knowing that it was not his property and that Wheeler had no right to deliver the property to him for any purpose. Upon that state of facts, this court said: “That there was no larceny by Wheeler from the railroad company is too clear for discussion. The railroad company was authorized to deliver the goods to Wheeler, who was the agent and driver for the transfer company, and Wheeler, as such driver, had the right to receive the property for the transfer company; hence the receipt and possession by Wheeler from the railroad company was a lawful possession by virtue of his employment. After the railroad company delivered the goods from its depot to Wheeler, the driver for the transfer company, who was authorized to receive them, its responsibility for the goods or the possession of them ended. Wheeler did not steal the goods from the. railroad company, for, under the facts in this case, he was authorized to receive them, and if he received the goods, as indicated by the testimony, by virtue of his employment as agent or driver for the transfer company, and appropriated the goods to his own use, clearly his offense wa.s that of embezzlement and falls within the terms of section 1912, Revised Statutes 1899. ... It may be said that Wheeler, at the time he received the goods from the railroad company, had the intent of appropriating them to his own use; that may be true; but- that does not alter the fact that he had the right to receive them and did receive them by virtue of his employment, and his appropriation of them makes his offense that of embezzlement.” In' this case, Formaneck received the tobacco in question from the Southern Railroad Company in East St. Louis to deliver it to the Missouri Pacific Railroad Company in St. Louis, just as Wheeler as the employee of the transfer company received the cigars from the Big Four Railroad Company to deliver to the consignee in that case, and then with the knowledge, aid and assistance of defendant Casey, conver Led the tobacco feloniously to his own use, and he and the defendant were guilty of embezzlement, unless it can be said that the fact that because when Formaneck reached St. Louis in the evening of May 1st, 1906, it was too late to deliver the goods to the Missouri Pacific Railroad Company, and for that reason he drove his team to the warehouse of his employer, the transfer company, to leave the team and the tobacco there for the night, and after having left the team and tobacco there, went to see the defendant, Casey, and he and Casey that night entered into the joint criminal arrangement of appropriating the tobacco, and that when Forman eclr went to the warehouse of the transfer company the next morning and Jtook charge of the team and the tobacco, this was a new caption with a felonious intent on the part of Formaneck and defendant to convert the tobacco to their own use and to deprive the owner of it, upon the doe trine of the common law as announced in Pear’s case, 2 East’s P. C. 685, in which it was held that the hiring , of a horse on pretence of taking a journey, but in ¡truth with intent to steal it, and evidencing such felonious intent by selling the horse, was larceny. To the same effect was Spencer’s case, Lew. C. C. 197; State v. Williams, 35 Mo. 229. In the last-mentioned case it was said by this court, however, “We do not contend that a bailee who obtains possession without a fraudulent intent can’t be charged with larceny by reason of subsequent conversion to his own use, but we hold that if he obtains possession by delivery under a pretence of hiring, but with the actual design of depriving the owner of his property, he is guilty of the crime of stealing. ’ ’ That Formaneck received these goods from ! the railroad company lawfully and by virtue of his employment on the first of May, there can be no doubt, and there was no evidence tending to show any intention on his part to feloniously convert the tobacco to his own use until the night after he had left his team and the tobacco in the transfer company’s warehouse. j Did the mere fact that he left the tobacco and his team > at the warehouse of the transfer company that night for convenience or from necessity and returned the next morning and started with his team and the tobacco intact, change his relationship to the transfer company? The record is absolutely barren of any instructions to him from any one having authority, to do anything different from the instructions he had received in East St. Louis at the Southern Railroad Company depot on the first of May, 1906, and there is absolutely no evidence to show that his agency had been changed in any manner. On the contrary, all the testimony shows there was no change in the character of the custody of the tobacco by Formaneck from the time he lawfully received the same from the' Southern Railroad Company by virtue of his employment as teamster for the transfer company, up to the time he delivered the goods to Fuelscher. The confidence and trust reposed in him by the transfer company on the morning of the second of May, 1906, was the same which had been confided in him on the previous afternoon, and that was to receive the tobacco from the Southern Railroad Company and deliver it to the Missouri Pacific Railroad Company. And we can discover no substantial ground upon which to base the contention of the State of a new and separate felonious caption of goods, but in our opinion it is a case of a receipt by the servant of the transfer company of property lawfully intrusted to his care and the felonious conversion by him and the defendant subsequently of the same property andj their offense was embezzlement and not larceny. Ini a word, we think that the decision in State v. Fink, 186 Mo. 50, is controlling upon the facts of this case, and' that no sound distinction can be made between the two. On the other hand, this case is distinguishable from the ruling in State v. Mintz, 189 Mo. 268. In that case the original^ caption was felonious and fraudulent and with the intent to steal, and therein lies the distinction between this case and that; that was larceny, and this is embezzlement. Having reached this conclusion, it bceomes unnecessary to examine the other assignments of error. Under the instructions of the court the jury found the defendant not guilty of embezzlement or of aiding, abetting or assisting Formaneck in the commission of embezzlement, and hence this cause cannot be remanded for the purpose of a trial of the defendant on that charge. As the testimony, in our opinion, was wholly insufficient to sustain the charge of larceny of which he was convicted, and as he cannot be tried for embezzlement, the judgment of the circuit court is reversed and the prisoner discharged.

Fox, P. J., and Burgess, J., concur.


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    THE STATE v. A. W. GEORGE, Appellant.
    Division Two,
    November 19, 1907.
    NO SENTENCE OR JUDGMENT: Appeal: Submission Set Aside. Where the record in a criminal case discloses that no sentence was pronounced or judgment entered on the verdict, the submission of the appeal will be set aside and the cause remanded with directions to the trial court to cause defendant to be brought before it and to pronounce sentence and enter up judgment on the verdict returned by the jury.
    Appeal from Camden Circuit Court. — Ho». Argus Cox, Judge.
    Remanded {with directions).

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
   FOX, P. J.

— This cause Avas brought to this court by appeal on the part of the defendant from a conviction in the circuit court of Camden county upon a charge of rape. The cause was tried and submitted to the jury and they returned a verdict finding the defendant guilty and assessing his punishment at imprisonment in the penitentiary for a period of five years.

A careful examination of the record discloses that no sentence was pronounced or judgment entered by the circuit court upon ¿the verdict of the jury which was returned in the cause. However, it does appear that the motion for new trial and in arrest of judgment were filed, heard and overruled. Upon this state of the record it is apparent that this appeal was prematurely taken. Appeals in cases of this character are only provided for from final judgments-. Adopting the course of procedure which is fully recognized in State v. Holland, 160 Mo. 667; State v. McClain, 137 Mo. l. c. 317; State v. Shea, 95 Mo. l. c. 95; State v. Gullic, 170 Mo. 334; State v. Hesterly, 178 Mo. l. c. 48; State v. Clapper, 196 Mo. 42, it is ordered that the submission of this appeal be and is hereby set aside and the cause remanded to the circuit court with directions to cause the appellant to be brought before it and to pronounce sentence and enter up judgment against the defendant on the verdict of the jury returned in this cause.

All concur.


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    THE STATE v. WILLIAM E. KNOST, Appellant.
    Division Two,
    November 19, 1907.
    1. ENTICING FEMALE: Concubinage: Information. An information charging defendant with taking away a minor female for the purpose of concubinage, is not defective because it does not charge actual concubinage, nor because it does not charge that he took her away for the purpose of concubinage with himself.
    2. -: -: Intent. The gravamen of the offense of taking away a female for the purpose of concubinage, is the intent with which the enticing and abduction are done, and the offense is complete as soon as the female is removed beyond the power and control of those having lawful charge of her, whether any illicit intercourse ever takes place or not.
    3. LEADING QUESTIONS: Discretion. The asking of leading questions is a matter within the discretion of the trial court.
    4. ENTICING FEMALE: Concubinage: Evidence. Evidence held sufficient to justify a conviction of taking away a female for the purpose of concubinage.

      5. -: -: Cohabit: Failure to Define. There was no error in the failure of the trial court to define the word "cohabit,” since it is a .word in general use, and is in no sense a word of art.
    Appeal from St. Louis City Circuit Court. — Ho». Moses N. Sale, Judge.
    Affirmed.

      Jeptha I). Howe and Alphonso Howe for appellant.
    (1) The information is fatally defective. It fails to charge a. public offense or this defendant with the commission of any offense. It is silent as to whom the concubinage was to be committed with. It fails to charge that defendant took prosecutrix away for the purpose of concubinage with himself. The two elements, the taking away, etc., followed by actual “concubinage” must be alleged and proved. State v. Jones, 191 Mo. 653; State v. Adams, 179: Mo. 334; State v. Gibson, 111 Mo. 92; State v. Boobst, 131 Mo. 328; State v. Neasby, 188 Mo. .467. (2) The court erred in refusing to instruct the jury to acquit the defendant, as requested, at the close of the State’s case. Where a statute makes an offense to consist of an act coupled with a specific intent, the doing of the act raises no presumption that the act was done with this specific intent; and where a specific intent is required, the mere doing of the act will not raise the presumption that it was done for such prohibited purpose. There must be a “taking away,” for the purpose of “concubinage,” followed by the actual “concubinage.” State v. Gibson, 1.11 Mo. 92; State v. Fox, 148 Mo. 517; State v. Johnson, 115 Mo. 496.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The information, which is accompanied by the affidavit of the assistant circuit attorney, is sufficient in form and substance. State v. Johnson, 115 Mo. 486; R. S. 1890, sec. 1842; Kelley’s Crim. Law, sec. 548; State v. Jones, 191 Mo. 662, (2). When all of the evidence is considered, it will readily be seen that there was substantial evidence of defendant’s 'guilt, and that the evidence fully comes up to the requirements in this kind of case. State v. Richardson, 117 Mo. 586; State v. Bussey, 58 Kan. 679'; State v. Jones, 191 Mo. 653; State v. Beverly, 100 S. W. 465.
   GANTT, J.

— On October 23, 1906, the circuit attorney of the city of St. Louis filed an information, duly verified, charging that defendant, on the 22d of September, 1906', at the city of St. Louis, one Fannie Six, a female under the age of eighteen years, from one Mathias Six, who then and there had the legal charge of the said Fannie Six, feloniously did take away for the purpose of concubinage, against the peace and dignity of the State. The defendant was duly arraigned and pleaded not guilty, and at the December term, 1906, was tried and found guilty and his punishment assessed at,two years in the penitentiary. After unsuccessful motions for new trial and in arrest of judgment, defendant was sentenced in accordance with the verdict, and from that judgment has appealed to this court.

The evidence on the part of the State .tended to prove that on the 22nd of September, 1906, Fannie Six was fifteen years old; she lived with her father and mother on Kosciusko street in the city of St. Louis, and worked at the Liggett-Meyers tobacco factory. Defendant is a brother-in-law of prosecutrix and also resided in said city; he had separated from his wife about two months prior to the commission of the offense charged. He persuaded prosecutrix to leave her father’s home about the latter part of September, 1906, and took her to various hotels and rooming houses in the city of St. Louis, where they were registered as man and wife and occupied the same room. Finally defendant procured a room on Chouteau avenue, where he and prosecutrix went by the name of Mentry; they occupied this room for about a week, ostensibly as husband and wife, and the defendant was arrested in this room by a police officer, who had gone with the defendant’s wife, about eight o’clock at night. Defehdant and the prosecutrix were just, about sitting down to supper when he was arrested. During the time they occupied this room, they occupied the same bed. At this house, prosecutrix, at the instigation of defendant, told that they had been married three months. The hotel registers of the two hotels where prosecutrix testified she and defendant occupied rooms were offered in evidence, and one of them showed the name of Charles "Wilson and wife, Chicago, Illinois, and the other John Winter and wife, Chicago, written in the defendant’s handwriting. The age of the prosecutrix was conclusively shown to have been fifteen years. Neither the defendant nor his wife testified in the case. The defendant offered one witness to prove his good reputation. The defendant also offered evidence by the gentleman and his wife to the effect that the defendant had rented a room from them during the time the prosecutrix claimed that she and the defendant were rooming together, and that defendant’s room seemed to have been occupied every night except three or four. These witnesses, however, admitted that they did not know who occupied the room. It seems that after the defendant was arrested, there was a reconciliation between him and his wife. Defendant also offered in: evidence a written statement prepared by one of defendant’s attorneys and signed by the prosecutrix. In this statement, she said, in substance, that she was taken by her relatives before an attorney at law in the said city, and was there threatened “with durance vile” if she did not make certain statements which were the cause of the defendant’s arrest, and that at said visit to the office of the said attorney, she was admonished by him and her relatives not to mention to the assistant circuit attorney that she had been questioned by a lawyer, and that she was instructed- by said attorney and her relatives to appear in court on the day of the trial of the defendant with her hair down her back in braids and to wear a short dress so as to give; herself a youthful appearance when taking the stand to testify for the State.

I. It is insisted that the information is fatally defective because it is silent as to whom the concubinage was to be committed with, and fails to charge that defendant took her away for the purpose of concubinage with himself. It is further insisted that the two elements, the taldng away and the actual concubinage, should have been alleged and proved. The information is drawn under section 1842, Revised Statutes 1899, which, provides: “Every person who shall take away any female under the age of eighteen years from her father, mother, guardian or other person having the legal charge of her person, either for the purpose of prostitution or concubinage, and any father, mother, guardian or other person having the legal charge of her person, who shall consent to the same, shall, upon conviction thereof, be punished by imprisonment in the penitentiary not exceeding five years.” This statute has often been before this court for construction, and it has been uniformly ruled that it was not necessary that the taking away should have been accompanied by actual cohabitation, but that the offense is complete when the minor female is taken away from her father or legal custodian for the unlawful purpose designated in the statute. It is clear, therefore, that the objection alleged against this information, that it fails to charge actual concubinage, is without merit. [State v. Bobbst, 131 Mo. l. c. 338; State v. Gibson, 111 Mo. l. c. 98; Slocum v. People, 90 Ill. l. c. 282; Henderson v. People, 124 Ill. l. c. 614.] These cases all hold that the gravamen of this offense is the purpose or intent with which the enticing and abduction are done, and hence the offense, if committed at all, is complete the moment the subject of the crime is removed beyond the power and control of her parents or of others having lawful charge of her, whether any illicit intercourse ever takes place or not. Subsequent acts are only important as affording the most reliable means of forming a correct conclusion with respect to the original purpose and intention of the accused. [State v. Bussey, 58 Kan. 679.] As to the other alleged defect in the information, to-wit, that it did not charge that defendant took her away for the purpose of concubinage with himself, it is sufficient to state that this is a statutory offense, and an indictment which states every fact and circumstance descriptive of the offense as defined by the statute, and follows the language of it, is sufficient. [State v. Johnson, 93 Mo. 317.] By reference to the information in this case, it will be seen that' it individuates every element of the statute. It names the defendant as the person and the time when he took away Fannie Six from her parents, and charges that she was a female under the age of eighteen years, and that at the time she was in the legal charge of her father, Mathias Six, and that defendant took her away feloniously for the purpose of concubinage. It was not at all essential that the information should charge that the intended concubinage should he with himself. As said by this court in State v. Gibson, 111 Mo. 98, the word concubinage of itself indicated that his intent and purpose was that the prosecutrix should cohabit with a man to whom she was not legally married, and his offense was just as great whether he intended the concubinage to he with himself or with some other man to whom the prosecutrix was not legally married. Without further discussion, in our opinion, the information was sufficient.

II. As to the alleged error in permitting the circuit attorney to ask leading and suggestive questions, it is only necessary to state that the decisions in this State are all in accord in holding that the asking of such questions is a matter within the discretion of the trial court. [State v. Bateman, 198 Mo. 222, and cases there cited.]

III. There was no error in refusing to instruct the jury to acquit the defendant. The evidence was amply sufficient to sustain the charge in the information. No good purpose can he subserved by reproducing it in this opinion.

IV. The instructions in the case were full and complete and stated the law as often declared and approved by this court. [State v. Adams, 179 Mo. 337; State v. Jones, 191 Mo. 653.] As to the objection that the court did not define the word “cohabit” to the jury, it is only necessary to add that this is a word in general use, in no sense a word of art, and it is only a fair presumption that the jury fully understood the word in its usual and ordinary acceptation, and there was no error in failing to attempt a definition of it. "We have carefully examined all the assignments of error, and, in our opinion, they furnish no ground for the reversal of this judgment, and it is accordingly affirmed.

Fox, P. J., and Burgess, J., concur.