text:
    THE STATE v. ELWOOD VAUGHN, Appellant.
    Division Two,
    November 23, 1909.
    1. TRANSCRIPT: Matters of Record and Exception. On appeal the transcript should show that matters of record proper are kept distinct from the hill of exceptions.
    2. ARRAIGNMENT. A trial cannot proceed against a prisoner for an offense for which he has not been arraigned and to which he has not pleaded guilty. And if he was arraigned under the first information and pleaded not guilty, his conviction under an amended information without an arraignment and plea, cannot stand.
    3. -: Matter of Record. The arraignment and entering of defendant’s plea are matters which must be entered on the record proper, and are not matters of mere exceptions. The record proper on appeal must show defendant’s arraignment.
    4. EVIDENCE: Res Gestae. Narratives of statements made by the prosecutrix after the offense was committed and she had disconnected herself with it, are no part of the res gestae, and are not admissible.
    5. -: Insane Patient: Competency. A patient in an insane hospital is presumed to continue insane, and is not competent to testify to the conduct towards her of a defendant charged with an attempt to commit a rape, nor can other persons testify statements made by her after the occurrence had ended.
    Appeal from Callaway Circuit Court. — Hon. David H. Harris, Special Judge.
    Reversed and remanded.

      I. W. Bouhuare and D. W. Herring for appellant.
    (1) Plea in criminal ease is matter and part of record proper and not matter of exception. State to use v. Griffith, 63 Mo. 548; Batason v. Clark, 37 Mo. 31; Sheridan v. Railroad, 56 Mo.'App. 68. (2) The records must affirmatively show that defendant was arraigned and made plea (or plea entered by direction of the court). State v. West, 84 Mo. 440; State v. West, 84 Mo. 440. The arraignment and the defendant’s plea must be the first step in the progress of the trial. State v. Montgomery, 63 Mo. 296; State v. Pickets, 65 Mo. 481; State v. Agee, 68 Mo. 264; State v. Taylor, 111 Mo. 448; State v. Walker, 119 Mo. 467; State v. Williams, 117 Mo. 379. (3) The original information in the ease was filed in the Callaway County Circuit Court on the eighteenth of September, 1908. On December 7, 1908, defendant was arraigned and plead not guilty to said information. On December 14, 1908, the prosecuting attorney by leave of court, filed a new information in this case, to which he attached his affidavit, and upon this information defendant was tried, if tried at all. There was no plea made or entered to said new information at any time. When the prosecuting attorney filed said information by leave of the court, he dismissed and abandoned said original information, to which defendant had made plea the original had no longer vitality, life or power. It was dead. It requires the same proceedings to secure a conviction under an amended new information that it does in ease of original. (4) The party, Mrs. Arnold, whose statements went to the jury in response to what occurred on the night of the alleged burglary, was not a competent witness, nor were her statements competent evidence. She was insane and of unsound mind. R. S. 1899, sec. 4659. (5) It would be profaning the sanctity of an oath to tender it to one who had no present sense of the obligations it imposes. It would be a scandal to the administration of justice to allow for a moment tbe rights of individuals to be jeopardized by the testimony of one laboring under the unfortunate condition of unsoundness of mind or insanity. Hartford v. Palmer, 16 N. Y. 142; Livingston v. Kienstedd, 10 N. Y. 362. (6) All of-the statements of Mrs. Arnold were mere hearsay; not legal or competent (even had she been a competent witness). State v. Bateman, 198 Mo. 212. On all fours with this case. 30 A. and E. Ency., pp. 935-6, and notes; State v. Jones, 61 Mo. 232; 3 Greenleaf, Ev. (2 Ed.), sec. 213; Wharton, C. L. (6 Ed.), sec. 1150; Stephens v. State, 11 Ga. 225.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) There is nothing before the court for review. The papers sent to the clerk of this court are headed and entitled “Bill of exceptions.” No transcript appears. The same is neither a bill of exceptions nor a transcript. The bill is not identified or authenticated. After the information is set out, immediately follow matters of record and exceptions so intermingled that it is difficult to determine what is matter of record and exception. From the abstract everything appears as part of the bill of exceptions, which contains not only the evidence, findings, rulings, exceptions, motions for a new trial and in arrest, but also all of what purports to be the entries in the record proper, including the sentence. There is nothing to show the record entries, except as they appear in the bill of exceptions. Under these circumstances, there is nothing before the court for review. Bower v. Daniel, 198 Mo. 317; St. Charles ex rel. v. Deemer, 174 Mo. 122; Butler County v. Graddy, 152 Mo. 441; Ricketts v. Hart, 150 Mo. 64; Lawson v. Mills, 150 Mo. 428; West Co. v. Glasner, 150 Mo. 420; Crossland v. Admire, 149 Mo. 650; Walser v. Wear, 128 Mo. 652; Ferguson v. Thatcher, 79 Mo. 511; Pope v. Thompson, 66 Mo. 661; McGrew v. Foster, 66 Mo. 30; Stark v. Zehhder, 204 Mo. 449. (2) The motion for new trial must be filed within four days after the verdict, and the filing of such motion must be shown by the record proper. In this case it is not shown by record entries of the record proper, as before stated, everything is intermingled with the purported bill of exceptions, and the motion for a new trial cannot be considered by this court. State v. Maddox, 153 Mo. 471; Greenwood v. Parlin, Orendorff, 98 Mo. App. 408; Turney v. Ewins, 97 Mo. App. 622; State v. Roberts, 191 Mo. 204; Cross-land v. Admire, 149 Mo. 650; Lawson v. Mills, 150 Mo. 428; State v. Heflin, 191 Mo. 178; Kirk v. Kane, 97 Mo. App. 556; Hill v. Combs, 92 Mo. App. 242; Perry & Gordon v. Coffee and Spice Co., 98 Mo. App. 409: (3) Appellant assigns as error that defendant was tried without arraignment or plea. In a purported bill of exceptions, on page 6, is found the following: “Comes the defendant, in open court, with counsel, files his motion to quash the information herein, waives formal arraignment and enters his plea of not guilty. ’ ’ This is sufficient. Section 2561, R. S. 1899. The appellant made no objection to the filing of the amended information, and cannot now complain. Sec. 2481 R. S. 1899; State v. Emerson, 188 Mo. 412. The arraignment must be shown by the record proper. There being no transcript filed of the record proper, there is nothing before the court to be considered. The presumptions are in favor of the record proceedings of the trial court. Furthermore, appellant cannot be heard to complain after verdict.’ Sutton v. Commonwealth, 85 Va. 133. (4) Appellant contends that Mrs. Arnold’s statements were incompetent evidence for the reason that she was at the time insane, and for the further reason that she, as the prosecutrix, did not testify. This complaint was made by Mrs. Arnold as soon as the witnesses found her lying in the parlor of the hospital in a scared and frightened condition and only a few minutes after she had left her room when she saw the negro in the window, which frightened her. She was then laboring under her disturbed condition of mind. This evidence was clearly admissible as a part of the res gestae and also as being a recent complaint of the attempted rape. State v. Patrick, 107 Mo. 163; State v. Warner, 74 Mo. 86; 3 Greenleaf Ev., sec. 213, p. 210; Wharton’s Crim. Ev. (7 Ed.), 273; Underhill on Crim. Ev., sec. 409', p. 468; Proctor v. Commonwealth, 20 S. W. 214.
   GANTT, P. J.

Defendant was convicted by a jury in the circuit court of Callaway county of an attempt to commit rape, and his punishment assessed at six years in the penitentiary. On motion his punishment was reduced to three years in the penitentiary and he was sentenced accordingly. From that judgment he has appealed to this court. The transcript is in a most unsatisfactory shape and we must again admonish both counsel and the clerks of the circuit and criminal courts to see that the transcript shall show that the matters of record proper are kept distinct from the bill of exceptions, as was pointed out in Stark v. Zehnder, 204 Mo. 449. However we have gone through the record and have concluded that there is sufficient therein to indicate what is record proper and that which is in the bill of exceptions.

It appears that on January 9, 1908, an affidavit was made before J. B. Hyde, a justice of the peace, charging the defendant with the crime of burglary, and on January 29,1908, there was a preliminary hearing of the said charge which resulted in the justice holding the defendant to answer before the circuit court at its next regular term in May, 1908, to the said charge. The transcript was duly filed with the clerk of the circuit court and at the said May term, 1908, the grand jury investigated the charge and reported “not a true bill.” Afterwards on the 18th of September, 1908, the prosecuting attorney filed with the clerk of the circuit court an information charging the defendant in two counts with the charge of burglary in feloniously breaking into State Hospital Number One located at Fulton, Missouri, in the first count with intent to make an assault upon one of the inmates therein, and in the second with the intent to take, steal and carry away the goods and chattels belonging to the State in said hospital then and there kept. In due time a motion to quash was filed and overruled and thereupon the defendant was arraigned and entered his plea of not guilty, on December 7, 1908. After-wards on December 14, 1908, by leave of court, the prosecuting attorney filed a new information, which was also in two counts. On the 7th of January, 1909, and during, the said December term, 1908, David H. Harris, Esq., was duly elected and qualified as special judge of the said circuit court and on the 8th of January 1909, defendant was put upon trial upon the said amended information, and the jury failed to agree and were discharged, and the cause was continued until the first day of February, 1909, on which day it was set down for trial on Wednesday the 3rd day of February, and on the last mentioned day the jury was impaneled, selected and sworn, and after hearing the evidence returned their verdict finding the defendant guilty under the first count in the information and assessing his punishment at six years in the penitentiary. In due time he filed Ms motions for new trial and in arrest of judgment which were heard and overruled, and thereupon on motion his punishment was reduced to three years in the penitentiary and he was sentenced accordingly.

I. The first assignment of error is that the defendant was tried upon the amended information without having been arraigned or any plea entered by Mm or in Ms behalf by order of the court. A careful examination of the record discloses that this is true and no suggestion has been made on the part of the State that the transcript is defective in that respect.

There is in our criminal practice no proposition better settled, by a long line of precedents, than that a trial cannot proceed against a prisoner, for an offense for which he has not been arraigned and to which he has not pleaded guilty. Time and again it has been ruled that where the record in this court shows no arraignment, the judgment must be reversed. [State v. Saunders, 53 Mo. 234; State v. Boatright, 182 Mo. l. c. 52; State v. Williams, 117 Mo. 379; State v. Walker, 119 Mo. 467; State v. West, 84 Mo: 440.]

The arraignment and the entering of a plea is a matter which must be entered upon the record proper and is not a matter of mere exception. F'or this error alone, if no other, the judgment must be reversed and the cause remanded.

II. Inasmuch as the judgment must be reversed and it may be the cause will be tried again, we have concluded we should express our opinion upon the admissibility of the testimony of Mrs. Bruner and Miss Peters as to statements made to them by Mrs. Arnold during the night or early morning of January 4, 1908, and after she was found out of the room she usually occupied. These statements were in no sense a part of the res gestae. They were clearly narrative of a past transaction. They were hearsay. More than this, if Mrs. Arnold, under the showing made in this record, had been offered as a witness, she would have been incompetent for the reason that she was insane. Having been shown to be insane and committed to the hospital for the insane, the presumption is that she continued insane at the time she made the statements attributed to her. [30 Amer. and Eng. Ency. 935 bb; Hottle v. Weaver, 206 Pa. St. 87.] Without this evidence there was little if anything tending to establish the charge of which the defendant was found guilty, and it is apparent that this testimony was hurtful in the extreme.

Other propositions for reversal are advanced by the learned counsel for the defendant but they are such as can he readily avoided on another trial if it shall be deemed advisable to prosecute the cause further. For the errors noted the judgment is reversed and the cause remanded.

Burgess and Fox, JJ., concur.


source: Caselaw Access Project

author: FOX, J.

license: Public Domain

text:
    THE STATE v. D. E. WILSON, Appellant.
    Division Two,
    November 23, 1909.
    1. INFORMATION: Intent to Cheat and Defraud: Statutory Form. Where an information, based on section 2213, Revised Statutes 1899, does not undertake to adopt the form of the charge embraced in the statute, the cases of State v. Terry, 109 Mo. 601; State v. Kain, 118 Mo. 5, etc., wherein it was held that the statute in undertaking to prescribe the form of the indictment was unconstitutional, have no application.
    2. -: -: Sec. 2213, R. S. 1899; Purpose of Statute. Sec. 2213, R. S. 1899, was directed against the obtaining of money or property from a person whose confidence has been first secured, by and through means of false and fraudulent representations in connection with acts done, with the intent to cheat and defraud. Its purpose was to provide for a class of false representations not included in some other section dealing with the subject of ordinary false representations. It was intended to reach a class of offenders known as “confidence men,” who obtain the money pf their victims by means or the use of some trick or representation designed to deceive.
    3. -: -: -: Traveling Salesman: Cashing Draft. The acts and representations of a defendant who represented himself as the agent of a company whose goods and products a merchant carried in stock; who as such agent took an order for goods upon said company from said merchant; who, having thus obtained the confidence of the merchant, represented to him that a draft he was expecting from said company had not arrived, and that he was in consequence short of money to pay his necessary traveling expenses, and who thereby obtained money from the merchant upon a draft drawn hy said defendant on said company, are embraced within the offenses denounced hy section 2212, Revised Statutes 1899; and the information set out in the statement is held sufficient.
    4. INTENT TO CHEAT AND DEFRAUD: Evidence: Other Attempts. Testimony tending to show that defendant, charged under section 2213, Revised Statutes 1899, with obtaining money fraudulently by means of á trick and deception, and false and fraudulent representations, had perpetrated or undertaken to perpetrate frauds upon other persons, thereby obtaining money from them under the same or similar circumstances, and by use of the same means, at or near the time the acts were committed in the case on trial, and at other towns in the same section, is competent to establish his intent or motive in the particular acts charged to be fraudulent, the intent of defendant to defraud being a matter in issue.
    5. OBJECTION: Insufficient. A mere “We object” is an insufficient objection. An objection during the progress of the trial should indicate some reason why the testimony is objected to.
    6. EVIDENCE: Affidavit and Complaint. An affidavit and complaint, not in all respects as full as the information, but in no respect contradicting it, and in no respect impeaching the affiant or contradicting his testimony, are immaterial and are properly excluded.
    Appeal from Texas Circuit Court. — Hon. L. B. Wood-side, Judge.
    AEETKMED.

      Elliott W. Major, Attorney-General, and Charles G. Bevelle, Assistant Attorney-General, for the State.
    (1) See. 2213, R. S. 1899, upon which the information in this cause is predicated, is directed against the obtaining of money or property from a person whose confidence has first been secured by another by and through means of false and fraudulent representations and acts made and done with the intent to cheat and defraud. The series of representations and acts set out in this information bring this offense clearly within the class of cases defined by this section, and such offense is a felony regardless of the value of the property so obtained. State v. Bayne, 88 Mo. 604; State v. Woodward, 156 Mo. 143; State v. Jackson, 112 Mo. 585; State v. Pickett, 174 Mo. 667; State v. Vandenberg, 159 Mo>. 230. (a) The false and fraudulent representations, pretenses and statements, the acts and things constituting the trick and deception, and all the constituent elements of the offense are set out with particularity and precision and the information fully informs defendant of the-nature and' cause of the accusation. State v. Woodward, 156 Mo. 143; State v. Pickett, 174 Mo. 663; State v. Vandenberg, 159 Mo. 230; State v. Martin and Sneed, decided by this Court at the January call, but not yet officially reported, (b) The fact that defendant could have been prosecuted under other sections of the statute, fixing different punishments, does not preclude a prosecution under this section when the facts are sufficient to bring the offense within the class there condemned. State v. Porter, 75 Mo. 171; State v. Vandenberg, 159 Mo. 230; State v. Williams, 77 Mo. 310; State v. Beauchleigh, 92 Mo. 490. (2) During the progress of the trial defendant objected to- the introduction of evidence tending to show that he had obtained money from other persons under the same and similar circumstances, and at about the same time and in the same section of country. For the purpose of showing the intent to cheat and defraud in the present case, this evidence was clearly competent, as has been uniformly held by this court. By an appropriate instruction the trial court specifically told the jury the sole purpose for which this evidence could be considered, and its effect was properly limited to the intent. This action on the part of the court was eminently proper. State v. Jackson, 112 Mo. 590; State v. Bayne, 88 Mo. 609; State v. Wilson, 143 Mo. 345; State v. Turley, 142 Mo. 411. (a) The objection “we object” is no objection and wholly insufficient. State v. Harlan, 130Mo. 395; Rice v. Waddell, 168 Mo. 120; State v. G-oforth, 136 Mo. 116; State v. Crone, 209' Mo. 330; State v. Page, 212 Mo. 239'.
   FOX, J.

The defendant in this cause has brought this case to this court by appeal from a judgment of the circuit court of Texas county, Missouri, convicting him of obtaining fraudulently by means of a trick and deception, false and fraudulent representations the sum of $25 from one John H. Bauch. The amended information, which was duly verified, upon which the defendant was tried, was predicated upon the provisions of section 2213, Revised Statutes 1899. The sufficiency of the information was challenged in the trial court by a motion to quash, as well as in the motion in arrest of judgment, hence it is well to reproduce the information upon which the judgment in this cause is based. Omitting formal parts, it is as follows:

“John H. Sanks, prosecuting attorney, within and for the county of Texas and State of Missouri, upon his information and belief informs the court that D. E. "Wilson on the 10th day of January, 1908-, in the county of Texas and State of Missouri, then and there with intent unlawfully and feloniously to cheat and defraud one John H. Bauch, then and there unlawfully, knowingly and feloniously by use of a trick and deception and false and fraudulent representation, statement and pretense, did falsely and fraudulently represent and pretend to the said John H. Bauch that he, the said D. E. Wilson, was then and there the representative and authorized agent of the Pratt Food Co. of Philadelphia, Pennsylvania, a corporation duly incorporated and existing under the laws of the State of Pennsylvania, and that he, the said D. E. Wilson, had full right and authority from the said corporation, then and there to transact business for said corporation ; to sell and contract for the sale of the goods and products of said corporation. And to furnish advertising matter to the dealers in said goods and products. That he, the said D. E. Wilson, was in the employ of said corporation and sent by the said corporation for the purpose of selling the goods and products of said corporation and furnishing and distributing the advertising matter of said corporation to dealers.
“And the said D. E. Wilson in pursuance of his purpose and intent to cheat and defraud the said John H. Bauch as aforesaid, did then and there as the agent and representative of said corporation, pretend to and did sell to the said John H. Bauch a bill of goods and products of the said corporation, and then and there take an order from the said John H. Bauch for advertising matter of the said corporation, advertising the goods and products of the same.
“Which order for said goods and advertising matter is in the words and figures as follows:
“ ‘Order No......... Date........
“ ‘M....................
Ship to John M. Bauch At Cabool, Mo.
How ship, Freight.
When, At once.
Terms, March 1st 66 days.
“ ‘1000 Letter heads
1000 Bill heads
1000 Statements
1000 Envelopes
500 Hand Books
Plenty of signs to tack upon counter
Plenty of large Litho signs.
1-2 bale 12-lb. sacks Stock Food
“ ‘Printed like sample attached.
“ ‘Ship at once.’
“And he, the said D. E. Wilson then and there represented to the said John H. Bauch, that he had expected to receive a draft or check from the said corporation to defray his traveling expenses as representative of the said corporation, but that said draft or check had not been received, that he, the said D. E. Wilson, was in need of money to defray said traveling expenses, and requested the said John H. Bauch to cash a draft of the said corporation for the sum of twenty-five dollars for the purpose of defraying said traveling expenses, which said draft he, the said D. E. Wilson then and there drew on said corporation, said draft being in the words and figures as follows:
$25.00 “ ‘Cabool, Mo. 1-10-1908.
“ ‘At sight pay to the order of John H. Bauch, Twenty-five dollars, value received, and charge the same to the account of D. E. Wilson.
“ ‘To Pratt Pood Co.
“ ‘No. Phila. Pad
“Which said draft the Pratt Pood Co. refused to honor and pay, but returned the same to the said John H. Bauch; and the said John H. Bauch believing the said false and fraudulent representations and statements and pretenses made as aforesaid by the said D. E. Wilson to he true, and being deceived thereby, was induced by reason thereof, and did then and there cash said draft, and in pursuance thereof, paid to the said D. E. Wilson the sum of twenty-five dollars, lawful money of the United States, of the value of twenty-five dollars; and the said D. E.Wilson by means and use of said trick, deception, false and fraudulent representations, statements and pretenses so made as aforesaid, then and there unlawfully, knowingly and feloniously, did obtain from him the said John H. Bauch the sum of twenty-five dollars, the money and property of the said John H. Bauch, with the intent then and there unlawfully and feloniously to cheat and defraud him, the said John H. Bauch, of the same.
“Whereas, in truth and in fact, the said D. E. Wilson did not have any right or authority then and there to transact business for said corporation,' ¿nd was not then their representative or authorized agent of said corporation to sell and contract for the sale of the goods and products of the said corporation, or the furnishing of advertising matter to dealers for said corporation. That he was not employed in any manner by said corporation; and he, the said D. E. Wilson, well knew that he, the said D. E. Wilson, did not have any right or authority then and there to transact business for said corporation or to sell the goods and products of the same, or furnish dealers with advertising matter, advertising the business of said corporation, or to receive any draft or cheeks or money from the said corporation in any manner, to defray his traveling expenses; and he, the said D. E. Wilson, was not then and there or at any time sent by the said corporation to represent said corporation in any manner whatever, against the peace and dignity of the State.”

Upon the overruling of the motion to quash this information the defendant was duly arraigned, entered a plea of not guilty and the trial proceeded. The testimony developed upon the trial of this cause tended substantially to establish the following state of facts:

That John H. Bauch, about January 10, 1908, and prior thereto, was engaged in the milling and mercantile business in the town of Cabool, in Texas county, Missouri, and handled, among other things, Pratt’s Foods; that on the morning of January 10,1908, defendant went to Bauch’s store and stated that his name was Wilson, and that he was the traveling salesman and representative of the Pratt Food Company. After inquiring of Bauch concerning his supply of such foods, defendant stated that his company, owing to the fierce competition it was then encountering, was preparing and furnishing free to its customers some special advertising matter. On being advised by Bauch that his supply of such advertising matter, including letter and bill stationery, was about exhausted, defendant remarked that lie had better send him some, and thereupon took from his pocket an order book, and, after writing in the book certain items which he called aloud as he entered them on the order book, he asked Bauch if that would be sufficient, to which inquiry Bauch replied in the affirmative. Bauch then informed defendant that he was in need of some twelve-pound sacks of stock food and directed defendant to send him one hundred pounds. Defendant placed this on the order with the advertising matter, and, after describing to Bauch some of the territory in which he said he was the traveling representative of the Pratt Pood Company, and after ascertaining that Bauch would be in the store at a later hour that morning defendant left the store, saying that he would return. Soon thereafter defendant returned to the store and went to the office deskwhere Bauch then was, andinformed Bauch that he had failed to get his check for traveling expenses and was about out of money, and requested Bauch to cash for him a draft, in the sum of $25. Bauch agreed to accommodate him and defendant filled out a blank draft which he took from his pocket, and Bauch gave him the $25. The draft was drawn on the Pratt Pood Company, and was never paid, as defendant was in no manner connected with, and had at no time been the representative or employee of that company. When defendant received the money he took from his pocket- the order, which, on the previous trip- to the store, was taken, and, after placing it in a stamped envelope, remarked that he would get it off on the morning mail. He then- left Cabool on the morning train, saying he was going to Thayer, Missouri. After defendant’s arrest he stated to Bauch that his reason for doing as he did was because he had been drunk. Bauch let him have the money, relying upon his representations and statements that he was the agent of that company, and his conduct and acts in connection with taking the order, etc.

The testimony also discloses that at the town of Fordland, Webster county, Missouri, a distance of about fifty-three miles from Cabool, and located on the same line of railroad, defendant, on January 11, 1908, went to another customer of the Pratt Food Company, Dr. John W. Good, and made the same representations and statements as he had made to Bauch. On that, occasion he told Dr. Good that he would have the company send him some calendars and stationery, and after taking out his order book, and writing what he said, was a requisition on the company for the calendars and advertising matter, stated that he was a little shy on traveling expenses, and asked Dr. Good to cash for him a $10 draft. The doctor, needing for immediate use the money he then had on hand, declined to cash the draft, and thus escaped being fleeced.

Again, on January 13,1908, at the town of Rogers-ville, located about sixty miles from Cabool and on the same line of railroad, and in the same direction from Cabool as Fordland, defendant called on N. T. Bowles, a druggist, and dealer in Pratt’s Foods, and introduced himself as Pratt’s agent, and, after taking an order from Bowles for some food and stationery and advertising matter, he said that he was in a hurry, and that some of the business men would have to help him out, as he was in need of money. He asked Bowles to accompany him to the bank and identify him in order to enable him to cash a draft. This Bowles did, and on his endorsement, defendant’s draft on the Pratt Food Company for $25 was paid. Payment on this draft was also refused by the Pratt Food Company, and Bowles was required to take up the draft and refund to the bank the $25.

Defendant actually mailed to the Pratt Food Company the various orders he had thus taken, but attached no signature, and these orders and papers were received by the company, but not recognized, because defendant was not their agent.

At .the close of the evidence the court gave instructions to the jury numbered 1, 2 and 3. It is not essential that we reproduce such instructions, but it is sufficient to say that instruction numbered 1 was predicated upon the allegations in the information and required the jury to affirmatively find the existence of every essential element necessary to constitute the offense charged. Instruction numbered 2 simply limited the purpose of evidence introduced by the State of other similar offenses committed by defendant. Instruction numbered 3 appropriately directed the jury upon the subjects of presumption of innocence, the burden of proof and reasonable doubt. The cause was then submitted to the jury and they returned their verdict finding the defendant guilty as charged and assessed his punishment at imprisonment in the penitentiary for a term of four years. Timely motions for new trial and in arrest of judgment were filed and by the court overruled. Sentence and judgment followed in conformity to the verdict returned, and from this judgment the defendant prosecuted this appeal, and the record is now before us for consideration.

OPINION.

The first legal proposition with which we are confronted, as disclosed by the record, is the challenge by the defendant to the sufficiency of the information. The statute upon which this information is predicated is section 2213, which, so far as it relates to the information in this cause, provides that ‘ ‘ every person who, with intent to cheat and defraud, shall obtain or attempt to obtain from any other person or persons, any money, property or valuable thing whatever, by means or by use of any trick or deception or false and fraudulent representation or statement or pretense, or by any other means or instrument or device, commonly called ‘the confidence game,’ or by means or by use of any false or bogus check, or by any other written or painted or engraved instrument, or spurious coin or metal, shall be deemed guilty of a felony, and upon conviction be punished by imprisonment in the penitentiary for a term not exceeding seven years.”

It may here be noted that in addition to the provisions of the statute, as herein indicated, it also makes provision as to the form of an indictment, but it will be observed that the information in the case at bar does not undertake to adopt the form of the charge as is embraced within that section; hence it follows that the cases of State v. Terry, 109 Mo. 601; State v. Cameron, 117 Mo. 371, and State v. Kain, 118 Mo. 5, wherein it was held that that statute in undertaking to prescribe the form of the indictment, was unconstitutional, has no application to the information in the case at bar. Manifestly the provisions of section 2213 were directed against the obtaining of money or property from a person whose confidence has first been secured by and through means of false and fraudulent representations in connection with acts done, with the intent to cheat and defraud. As was said in the case of State v. Pickett, 174 Mo. 663, the purpose of this statute was to provide for a class of false representations not included in some other section dealing with the subject of the ordinary false representations. It was intended to reach a class of offenders known as “confidence men,” who obtain the money of their victims by means of or by the use of some trick or representation designed to deceive. The very essence of the crime denounced by section 2213 is that the injured party must have relied upon some false or deceitful pretense or device and parted with his property.

After a careful analysis of the charge as embraced in the information in the case at bar we are of the opinion that the acts and representations a,s made by the defendant, which are set out in detail in the information, clearly place this offense within the class of cases defined by section 2213. It must not be overlooked that the defendant in the case at bar at the very inception of his dealings with the prosecuting witness sought to obtain his confidence by representations that he was acting as the agent of a firm dealing in goods and products that the prosecuting witness carried in stock; and it further appears from the allegations in the information that to thoroughly obtain such confidence of the party charged to have been defrauded he took his order for certain goods and products as the agent and salesman of the firm which dealt in such goods and products. All of these representations are alleged in the information and properly so, for the trick and deception consisted in convincing the prosecuting witness that he was the agent and traveling salesman of the firm he claimed to represent, thereby obtaining his confidence to the extent that, upon the false and fraudulent representation that he had expected to receive a draft or check from the Pratt Food Company to defray his traveling expenses, but that said draft or check had not been received, he induced John H. Bauch, the prosecuting witness, to cash a draft drawn by the defendant upon the Pratt Food Company for the sum of $25 for the purpose of defraying the traveling expenses of the defendant.

We are unable to conceive a series of representations and acts, all of which are averred in the information, which present more strongly and clearly a case contemplated by the provisions of section 2213. The false .and fraudulent representations, pretenses, statements and acts done by the defendant, which clearly point to a trick and deception, are all set out with remarkable particularity and precision in the information. ■ In our opinion every essential element necessary to constitute an offense under that section is embraced in the information.

The defendant in this ease doubtless realized that, if he simply requested the cashing of the draft upon the Pratt Food Company, in all probability his request would not be granted; hence, he resorted to the deception and trick of impressing the prosecuting witness that he was the agent and representative of a business concern with which the prosecuting witness had had dealings, and thereby obtained his confidence, and manifestly it was through this • deception and trick that he obtained the money from the prosecuting witness upon the worthless draft.

We repeat, that this information sufficiently charges an offense under the provisions of section 2213, and is not out of harmony with the cases of State v. Woodward, 156 Mo. 143; State v. Jackson, 112 Mo. 585 ; State v. Pickett, 174 Mo. l. c. 667-668; State v. Vandenburg, 159 Mo. 230.

II.

The record before us discloses numerous complaints at the action of the trial court in the admission and rejection of testimony. The defendant is not represented in this court, hence under the provisions of the statute we have examined in detail the record disclosing the objections and exceptions to the action of the trial court in the disposition of this cause. There was during the progress of the trial evidence introduced upon the part of the State tending to show that the defendant had perpetrated or undertook to perpetrate frauds upon other persons, thereby obtaining money from them under the same and similar circumstances at or near the time it is charged the acts were committed in the case at bar. Learned counsel for defendant in the trial court interposed objections to this character of testimony and properly preserved their exceptions. This proposition is not one of first impression, but has in many instances been in judgment before this court. In State v. Myers, 82 Mo. 558, Judge Philips, who was then a Commissioner of this court, exhaustively reviewed both the English and American authorities upon this subject, and from such review deduced the conclusion that while as a. general proposition a distinct crime, for which the party might be separately proceeded against, could not be given in evidence against the prisoner on trial for a single offense, this well settled rule has its ex-, eeptions equally well settled; and it was expressly held in that case, adopting the views of Judge Story in Wood v. United States, 16 Pet. 342, that where “the question was one of fraudulent intent or not, and upon questions of that sort, where the intent of the party is matter in issue, it has always been deemed allowable, as well in criminal as civil cases, to introduce evidence of other acts and doings of the party of a kindred character, in order to illustrate or establish his intent or motive, in the particular act directly in judgment. ’ ’

This court in State v. Turley, 142 Mo. 403, was confronted with the same proposition in a case of a similar character, and it was there said by Judge Burgess, speaking for this court, that “evidence of other efforts upon the part of defendant made about the same time to obtain goods from other merchants, upon the same character of statements and representations, was admissible for the purpose of showing the intent of the defendant, and to this purpose that kind of evidence was properly restricted by the State’s fifth instruction. So that defendant had no right to complain on that score.” To the same effect is State v. Wilson, 143 Mo. 334. In fact an examination of the authorities in this State makes it manifest that the case of State v. Myers, supra, on this point, has been consistently followed and adhered to by this court in all of its subsequent rulings. [State v, Cooper, 85 Mo. 256; State v. Bayne, 88 Mo. 604; State v. Sarony, 95 Mo. 349; State v. Balch, 136 Mo. 103.]

The next objection to the admission of testimony to which the record directs onr attention, is that of witness Shafer, introduced by the State, who testified along the line that the defendant was not the agent, representative or employee of the Pratt Food Company, and was in no manner authorized to solicit or take orders for them or in any manner represent that company. The objection to the testimony of this witness seems to be predicated upon the theory that there was no allegation in the information that defendant was not in fact the agent and representative of the Pratt Food Company. In this we are of the opinion that it is a misconception of the charge as embraced in the information. The information plainly charges that the defendant falsely and fraudulently pretended to be the agent of the Pi’att Food Company, and this is followed by another allegation that he in truth and in fact was not such agent and had no authority to represent them. There is no merit in this objection and it must be ruled adversely to the appellant.

We find other objections disclosed by the record, but they are mere objections without assigning any reasons for them. In other words, it is simply stated that “we object.” In view of the uniform expressions by this court that objections in that form are insufficient to preserve the rulings of the court upon them for review in this court, we deem it unnecessary to burden this opinion with a citation of the authorities. An objection to testimony during the progress of a trial should at least briefly indicate some reason for such objection, and in order to entitle it to the consideration of this court this should be done.

Upon the trial of this cause defendant offered in evidence the complaint and affidavit made by the prosecuting- witness before the justice of the peace. The court? upon the objection of the State, excluded the complaint and affidavit, and in onr opinion the action of the court was entirely proper. Prior to the offering of the complaint and affidavit made by the prosecuting witness a preliminary inquiry was made concerning the making and signing of the affidavit, to which inquiry prompt answers were given. The purpose of offering this complaint and affidavit as made before the justice of the peace was not disclosed by counsel for appellant in the trial of this cause, and manifestly the only theory upon which such offer was made would be that it tended to contradict or impeach the testimony as given in the trial of the cause by the prosecuting witness. The affidavit and complaint as made before the justice is fully set out in the bill of ■exceptions, and we have carefully examined it, and while it is true that it does not set forth all of the ■details of the offense as fully as the information by ■the presecuting attorney, yet it contains nothing which in any way contradicts or has a tendency to impeach the statements as made by the prosecuting witness upon the trial of this cause; hence we have reached the conclusion that this testimony was immaterial. It had no tendency to prove or disprove any of the issues involved in this proceeding, nor did it tend to contra■dict or impeach any witness in the proceeding.

III.

This leads us to the consideration of the instructions given by the court. Instruction numbered 1 fully covered the charge in the information, and required the jury to find every essential fact necessary to constitute the offense. There was no error in that instruction. Instruction numbered 2 was a very appropriate instruction, limiting the purpose for which evidence was offered by the State during the progress of the trial, to which reference has heretofore been made,' as to the perpetration of frauds upon other persons at or near the time it is charged this offense was committed, in the same section of the country and under similar circumstances. This instruction was entirely proper, and is in accord with what this court held in State v. Turley, supra, concerning evidence of this character, that it should be properly restricted to the purpose for which it wa.s introduced, that is to say, in ascertaining the intent to defraud, which was an issue in the cause.

Instruction numbered 3 fully covered the subject of the presumption of innocence, and informed the jury that the burden of proof rested upon the State, and required them to find the guilt of the defendant beyond a reasonable doubt, and directed them, in the usual manner, that if they entertained a reasonable doubt of the defendant’s guilt, they should give, him the benefit of it and acquit him.

IV.

The defendant not being represented in this court has led us to make a very careful examination of the disclosures of the record with the view of ascertaining whether or not there was any substantial error committed during the progress of the trial of this cause. After such examination we are clearly of the opinion that there was no substantial error committed by the tidal court which would authorize the reversal of this judgment. No one can read in detail the testimony developed upon the trial without being convinced that the defendant is guilty of the perpetration of the fraud charged in the information. The rulings of the court upon the admission and rejection of evidence were entirely in accord with the well-settled principles of law applicable to that subject. The instructions of the court fully and fairly covered every subject to which the testimony was applicable. Entertaining these views, the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


text:
    THE STATE v. WILLIAM WILSON, Appellant.
    Division Two,
    November 23, 1909.
    1. WITNESSES: New: Indorsed on Indictment: No Motion, Surprise or Continuance. The indorsement on the information, after the case has been called for trial, of the names of material witnesses, where there was no motion to quash the information, and defendant made no complaint that he was taken by surprise and made no application for a continuance for a sufficient length of time to enable him to investigate concerning them, and all he did was to object to the indorsement and to except to the court’s ruling permitting the names to be so indorsed, was not reversible error.
    2. CONFESSIONS: Necessary Elements. Where the officers held out to defendant no flattery of hope or promise of immunity and used no threats and pursued no improper conduct to induce him to make a confession that he killed deceased, such confession is admissible in evidence on behalf of the State.
    3. DEFENDANT: Cross-Examination: Confessions. Defendant ran only be cross-examined upon matters referred to in his examination in chief; but where defendant, in his testimony in chief, testified that he made the confessions testified to by the State’s witnesses, and also the written confession signed by him, but said the first were obtained by threats and duress, and that he did not know the contents of the written confession, he thereby opened a wide field for cross-examination, and it was proper to permit the State to cross-examine him fully as to the facts, stated in the confessions.
    4. EVIDENCE: Instrument of Death: Rope. Where defendant confessed that he tied a rope around deceased’s neck and dragged her, and a physician testified that her death was due to strangulation, and a witness fully identifies the rope as being the one found about the neck of deceased, it was proper to permit the State to introduce such rope in evidence.
    5. ATTORNEYS: Improper Remarks: Preservation for Review.
    If the bill of exceptions fails to preserve objections and exceptions to an argument to the jury of an attorney foir the State in a prosecution for murder, the impropriety of such remarks is not for review upon appeal.
    6. -: Former Counsel for Defendant. Where the defendant interposed an objection to an attorney sitting as counsel on behalf of the State on the ground that he had formerly been defendant’s counsel, and the court sustained the objection, the court did what it could to protect defendant’s rights, and there is no merit in the assignment that the attorney for defendant at his preliminary hearing took a seat at the counsel table for the State and began to assist the prosecuting attorney to select a jury.
    7. NEWLY DISCOVERED EVIDENCE: Affidavit. An affidavit by the attorney for defendant that newly-discovered evidence in his behalf has been obtained, naming the witnesses and reciting what they would testify, is not sufficient to authorize a new trial. Such affidavits must be made by defendant himself and by the witnesses by whom he expects to establish the facts alleged to have been newly discovered.
    8. INSTRUCTIONS: Statements Made by Defendant. An instruction in the usual'form, telling the jury that “what defendant said against himself the law presumes to be true, because said against himself,” and “what the defendant said for himself the jury are not bound to believe because it was said in a statement proved by the State,” etc., is again held to be unquestionable law.
    9. MURDER: In First Degree: Hanging: Sufficient Evidence. Deceased, a white girl, was a cook for a traveling show, and defendant, a negro, was also an employee. She was found dead beside an empty box car about 1:45 a. m., a small rope about her neck, her face, body and clothes indicating that she had been dragged, and the physician testified her death was due to strangulation. Defendant was arrested about two o’clock, at first denied his guilt, then confessed to the officers that he went to the car where the girl was sleeping, went in and made an indecent proposal to her; that she refused, and sprang out of bed, and he struck her in the jaw, and she fell “senseless;” that he took her on his shoulder, carried her about one hundred yards, and becoming exhausted put her down and dragged her by the rope about the same distance to the car, his purpose being to put her on, tie the rope to indicate she had committed suicide, and close the door and let the car be hauled out of town; that when he reached the ear, he heard some one move in it, saw some tramps therein, and ran away, leaving her lying on the ground. In the presence of witnesses he made the same confession the next day to the prosecuting attorney, who wrote it down, and he signed it. In subsequent statements he said when he made the proposal to the girl, she jumped out of bed, and tried to cut him with a butcher knife, and when he struck her on the jaw she again tried to cut him with the knife, and then he hit her on the neck. Held, sufficient to support a verdict of murder in the first degree, assessing the punishment at hanging.

      Appeal from Jasper Circuit Court. — Eon. D. E. Blair, Judge.
    Aeeirmed.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    (1) Appellant complains because the court permitted the prosecuting attorney to indorse the names of the witnesses, Prank Ross, Wm. Weaver, H. L. Bright and Dr. E. H. Baird, on the information on the day of the trial. We only find in the record an objection by counsel for appellant, and an exception to the ruling of the court in permitting said names to be indorsed on the information by the prosecuting attorney. Counsel for appellant did not move for a continuance by reason of surprise by the adding of said names to the information, nor did they move to quash the information by reason of said names being added thereto. Hence there is nothing for the court to review on this assignment. If any error was committed, it was waived. State v. Myers, 198 Mo. 213; State v. Barrington, 198 Mo. 66; State v. Bailey, 190 Mo. 278; State v. Henderson, 186 Mo. 482. (2)' The confession was properly admitted in' evidence. In the ease at bar there was evidence on the preliminary examination (with the jury excluded) to ascertain whether said confessions were obtained by improper inducements held out to appellant. And in the absence of any improper conduct on the part of the officers to induce such confessions by flattery of hope, promise of immunity, or use of threats, the confession was properly admitted in evidence. State v. Brooks, 220 Mo. 74; State v. Wooley, 215 Mo. 682; State v. Spaugh, 200 Mo. 596; State v. Hottman, 196 Mo. 127; State v. Barrington, 198 Mo. 109; State v. Ruck, 194 Mo. 437; State v. Patterson, 73 Mo. 695; State v. Jones, 171 Mo. 406; State v. Brennan, 164 Mo. 487; State v. Stebbins, 188 Mr. 387; State v. Kennedy, 177 Mo. 98; State v. Hapkirk, 84 Mo. 278. (3) Appellant assigns error in that he was cross-examined about matters not testified to in chief. Appellant, in his testimony in chief, stated that he made the confessions at Carl Junction as testified to 'by different witnesses; also, that he signed the written confession to Judge Bright, but claimed that the first confessions were obtained by threats and duress, and that he did not know the contents of the written confession. It was competent for the State to cross-examine appellant as to all of these facts. He was not cross-examined a,s to a single fact about which he did not testify in chief, as shown by the record. State v. Miller, 190 Mo. 462; State v. Avery, 113 Mo. 498; State v. Wartz,- 191 Mo. 579; State v. Barrington, 198 Mo. 71; State v. Miller, 156 Mo. 85; State v. West, 95 Mo. 142; State v. Kennade, 121 Mo. 414; State v. Anderson, 126 Mo. 546; State v. Grant, 144 Mo. 64. (4) The law, as declared in instruction 7, has been the law of this State since the early case of State v. Hays, 23 Mo. 287; State v. Dorrah, 152 Mo. 541; State v. Carlisle, 57 Mo. 102; State v. Brown, 104 Mo. 365; State v. Wisdom, 119 Mo. 552; State v. Toung, 119 Mo. 525; State v. Peak, 85 Mo. 192; State v. Curtis, 70 Mo. 594; State v. Talbot, 73 Mo. 347; State v. Walker, 98 Mo. 108; State v. Cushenberry, 157 Mo. 188; State v. Howell, 117 Mo. 307; State v. McKenzie, 144 Mo. 44. (5) Appellant assigns newly-discovered evidence as a reason in his motion for a new trial, and attaches an affidavit verified by Walter B. Sayler, one of the attorneys for appellant in the trial court below. This assignment of error cannot be considered because the affidavit is not supported by the oath of appellant, or the persons named in said affidavit. The affidavit made by counsel for appellant is, not sufficient. State v. Flutcher, 166 Mo. 587; State v. Neasby, 188 Mo. 472; State v. Miller, 144 Mo. 30; State v. Bowman, 161 Mo. 94.
   FOX, J.

The defendant in this cause was charged by information of the prosecuting attorney of Jasper county, which was duly verified, with murder of the first degree. The party charged to have been killed was one Millie Plum, and the offense was alleged to have been committed on July 12, 1908, at Carl Junction, Jasper county, Missouri. The information embraces four counts, each of which charges murder of the first degree, and doubtless were embraced in the information to meet the different phases of the testimony which might be introduced upon the trial of the cause. From a judgment of conviction in the Jasper Circuit Court of the offense charged the cause is brought to this court and is now pending here upon appeal from such judgment.

The testimony introduced upon the trial of this cause substantially tended to prove the following state of facts:

Defendant, William Wilson, is a negro, was about twenty-four years old at the date of the trial, and a native of Lafayette, Louisiana. In the spring months of 1908 the Miller Carnival Company was showing at Lafayette, and this defendant joined said company at that place and remained as one of the employees of said company until the date of his arrest at Carl Junction for the murder of deceased. The deceased, Millie Plum, joined said Miller Carnival Company at Weir City, Kansas, as an employee in the capacity of a cook, about one week prior to her death. It appears that said Miller Carnival Company had been at Carl Junction for a few days, taking part in a street fair, and closed its engagement' late Saturday night, July 11th, and was getting ready to leave on the following day. Said company traveled by railroad; it had one ear of its own, divided into compartments, one of which was occupied by the Miller family, one for the private dining-room of the Miller family, one for the general dining-room of the carnival employees, and an extra car of the railroad company was used in conveying their property from town to town.

The body of the deceased, Millie Plum, was found near an empty box car of the Frisco railroad at about 1:45 Sunday morning, July 12, 1908. When found a rope was tied around her neck; her face was downward; a bruise was found on her left check; a cut around her neck five inches long, but not deep; she had on a thin skirt and a gauze shirt waist. The body had been dragged a distance of about one hundred yards on the ground. The distance of the body from the Miller car was something like two hundred yards. Her hands and feet showed signs that she had been dragged face downward, and the skin on the hands and feet was broken and worn. Woman’s hair was found on the railroad track where the body had been dragged; a lady’s comb was found about thirty feet from the Miller car. Sock-feet tracks of a man with flat insteps were found leading back to the Miller car; the size of the footprints corresponded to defendant’s feet. Defendant was arrested in th.e Miller car soon after the body of the deceased was found, which was near the hour of 2 o’clock in the morning, and when first arrested he denied that he had killed deceased, but while in the city calaboose at Carl Junction, and only a few hours after his arrest, defendant confessed to the crime of killing deceased. After defendant was taken to the county jail at Carthage, and on that Sunday afternoon, he made a sworn, written confession to Judge Bright, who was then assistant prosecuting attorney, telling him how this crime was committed, which written confession is as follows:

“State of Missouri, County of Jasper, ss.-
“William Wilson, being duly sworn, upon his oath states: My name is William Wilson. I am 24 years old. I was born in South Carolina. I joined the J. G-. Miller Carnival Company January at Lafayette, Louisiana. We showed at Weir City, Kansas, last week. My duty was working at the merry-go-round and at the boarding car. At Weir City a. white woman, whom they called Millie Plum, joined the carnival company. We went from Weir City to Carl Junction. We showed there last week, and we showed there the last time Saturday night, and expected to leave there Sunday morning. This white woman I mentioned cooked for the members of the company. About midnight Saturday night, July, 11, 1908, I went into the car of the carnival company where Millie Plum slept. I took off my shoes. She was lying down. I asked her to let me have sexual intercourse with her. She refused. Then I hit her on the jaw, and knocked her down. I then carried her out of the car and for about 100 yards from the car. I- then tied a rope around her neck and dragged her some distance to an empty box car. I tried to put her into the box car, but she was too heavy. I wanted to put her into the box car to hide her. She never hit me or cut me at any time.
“When first arrested I denied having killed Millie Plum.
“I make this statement under oath and of my own free will and accord, voluntarily and without any duress or restraint whatever and without any hope or promise of clemency of any kind. Willie Wilson.
“Subscribed and sworn to before me this 12th day of July, 1908. . Henry L. Bright,
“Notary Public.
“My commission expires July 28, 1911.
“Witness: Wm. Weaver. •
“(Seal.)”

Dr. A. L. Carpenter, a witness for the State, who examined the body of deceased early on the morning it was found, testified as follows:

“Q. There was a question I intended to ask you. What was the condition of the body as to whether or not it was alive or dead? A. It was unquestionably dead.
“Q. Now, after making- an examination, Doctor, of the body contusions and bruises and the rope around the neck, what, in your opinion, was the cause of death? A. Dragging it up there with the rope; it was strangulation.
“Q. You say, Doctor, it was caused by strangulation? A. Yes, sir.
“Q. That was produced by what? A. By dragging her along on her face.
“Q. That produced death? A. Yes, sir. I think she was struck a blow on the side of the head first.
“O'. Was the blow on the side of the head sufficient to cause death? A.' I don’t think so.
“Q. Then, in your opinion as a medical man, you should say it was caused by strangulation? A. Yes, sir.’’

H. O. Barnard, witness for the State and the city marshal of Carl Junction at the date of this crime, and who arrested defendant, testified to defendant’s confession to him as follows:

“Q. Go ahead, now Mr. Barnard, tell what he said there — use his language. A. He said she come at bim with a butcher knife, and he knocked her down, and did this either two or three times — I wouldn’t be positive which — and he knocked her down each time, and he said he thought he had killed her, and taken her on his shoulder; at any rate, he carried her from the car about a hundred yards west up the railroad track, and said he was tired carrying- her, and he laid her down and drug her about another hundred yards to an empty box car that was standing on the siding there, and said he intended to pnt her in that ear and close the door, and possibly she would be taken out before it was discovered.
“Q. What else did he say, if anything, about how he dragged her? A. He drug her with a rope he had around her neck, a rope eight or ten feet long.
“Q. Describe that rope ? A. It was a small rope, I don’t know just what kind it was, I don’t think it would exceed half-an-ineh rope, and possibly eight or ten feet long. ’ ’

Frank R. Ross, a witness for the State, testified to a confession made by defendant to him, as follows:

“Q. Do you remember the time Millie Plum was killed over at Carl Junction? A. I remember the circumstances ; I don’t remember the exact date.
‘ ‘ Q. How long was it after that time you saw the defendant, William Wilson? A. About three o’clock that afternoon.
“Q. Where did you see the defendant at that time? A. In the county jail of Jasper county.
“Q. Have any conversation at that time as to how this killing took place? A. I did.
“Q. State to the jury what the defendant said? A. Well, he said he went to the car where this girl was sleeping and made a proposition to her and she resented it, and she came at him with a butcher knife and he struck her in the face, or neck, right back here some place, and knocked her down, and after questioning him several times over that, telling him to repeat it, he finally denied the butcher knife. He said he struck her on the side of the jaw or neck and knocked her down and thinking he had killed her he picked her up and took her out, I believe, the side door to the car and carried her some seventy-five or one hundred yards. He had a rope that he had been tying some papers together with, and he put that around her neck and dragged her that much further to put her in a car, thinking he would fasten the car up and possibly she would be shipped out and no one would ever know where she went to, but after he got there he was pretty well out of wind and as well as I remember now, he said some two or three tramps were in the car and that frightened him and he left her at the side of the car and went back to the ear and went to bed.
‘ ‘ Q. What car did he go back to ? A. Where this girl was sleeping or the car that belonged to the Miller Carnival Company.”

J. W. Jackson, a witness for the State, testified to the following confession made to him by defendant:

“Q. What did he say? A. He says, ‘I can’t help it, I never done it.’
“Q. WThat else did he say, if anything? A. Mr. Miller, or Mr. Barnard — -I wouldn’t be positive which— says: ‘Well, the girl come too, Bill, and regained consciousness, ’ and he said, ‘ She admitted to ns and told ns, that you was the one that done it before she died. ’
“Q. What did he say? A. He still denied it again, and he said he couldn’t help what she said, he never done it, and Miller spoke up and says, ‘Bill, whatever induced you to do that?’ he says, ‘you must undoubtedly have had some provocation or yon wouldn’t have done it.’ And he says, ‘Well, I tell you, Mr. Miller,’ he says, ‘went back to where she was laying and made a proposal to her and she jumped out of where she was laying and come at me with a knife and I struck her in the jaw and knocked her down and she come at me again and I run and she followed me out of the car and she run at me again and I knocked her down again and she got up and fought at me and still struck at me with this knife and I knocked her down again and knocked her senseless,’ and I think, if I am not mistaken, Mr. Miller says, ‘You knocked her senseless,’ and he says, ‘Yes, and then I picked her up and put her on my shoulder and carried her as far as I could and then put this rope around her neck and drug her; ’ And some of the boys asked him what made him do that, or what was he going to do, and he said he was going to put her in that car, and he said she was too heavy, he couldn’t get her in.”

William Weaver, deputy sheriff, testified to the following confession as made by defendant to him:

“Q. Did you have any conversation with the defendant in regard to the killing of Millie Plum? A. Tes, sir; several conversations with him'.
“Q. Tell the jury what they were — what he said? A. The first conversation I had with the defendant was in the afternoon of July 12th, somewhere about five o ’clock, probably a little later. It was in the trusty room in the county jail. After the defendant was brought to the jail on the morning of the 12th, being my Sunday off, I left and went to Carl Junction for the purpose of investigating the murder that had been committed down there, and I came back to the jail in the afternoon. Mr. Bright, the then assistant prosecuting attorney, and Mr. Ross, in charge of the jail on that day, and the defendant were in the trusty room together. Mr. Bright had come down, I suppose, for the purpose of getting a statement from the defendant — wha.t he knew about the matter. They were together when I arrived at the jail and I immediately went into the room where they were and became interested in the conversation. Being questioned by Mr. Bright, the defendant made a statement; that is, he commenced to make a statement as to what he knew about the matter, and he made the statement as it was repeated to me by the constable as he had before that made it to him, and I spoke up to the defendant and told him, I says, ‘You are lying about this, you are not telling the truth, you had better come clean because we have got the evidence. ’. Then Mr. Bright instructed him to make a statement as to what he knew about the matter. Then he made a statement .which was written down by Mr. Bright and later signed by the defendant after having been read over twice, and it was read over after he signed it, by Mr. Bright.
“Q. I hand you Exhibit A, Mr. Weaver, and ask you if that is the statement? A. Yes, sir; that is the statement he signed and my own signature here as a witness.
“Q. Now, Mr. Weaver, subsequent to that statement, did you have any conversation with the defendant? A. Yes, sir.
“Q. State to the jury what that was? A. It was on the morning, Tuesday morning following, at. about one o ’clock, in the morning'.
“Q. This was on Sunday ? A. Yes, Sunday afternoon. On the Tuesday morning following at about one o’clock in the morning, for certain reasons I went to the cell where the defendant was confined, and he was lying on a bunk, apparently asleep. I touched him on the shoulder and says, ‘Billy, get up, put on your clothes and follow me and don’t ask any questions nor speak a word,’ and he done so. I took the defendant into the outer room and left him in charge of Deputy Sheriff Cale and went to the barn' and hitched up my rig. Mr. Cale took the colored man out of the jail and met me at the corner of 5th and Fulton streets. The defendant got in the buggy with me and during this ride I had another conversation with the colored man. After we got out in the edge of town, I says, ‘Billy, tell me all there is to this thing,’ and he went over practically the same statement he made here where he signed. • Plis statement was to the effect that he went into the apartment of the girl—
“Mr. Sayler: We object to that.
“The Court: Overruled.
“Mr. Sayler: We except.
“He told me he went into the apartment of the girl where this white woman, Millie Plum, as P understand her to be, was sleeping, for the purpose — he used the term — doing business with her. He made a proposal to her and she was. lying on the bed at the time. She resented the proposition and jumped out of the bed and he said he struck her with his fist on the head or neck and she fell to the floor. He said he thought he had lulled her. There was a piece of rope he said lying there, and he tied that around her neck and dragged her to the side door of the car and took her on his shoulder. He said he carried her up the railroad track west until he became exhausted and laid the body down on the ground, and he said at that point he saw the woman breathing. ' He said he dragged the body from there to an empty box car, which was about one hundred yards further west. I asked him what he took her there for. He said he intended to hang the body in the car so if it was found it would appear the woman had committed suicide. I asked him why he didn’t hang the body in the car and he said he thought he heard something move in the car and left the body on-the ground. He also said he was so exhausted he could not have put the body in the car if he tried. I have had other conversations since then, and while there has been other statements made, I don’t know as any that would throw any further bearing on the case.”

The defendant testified in his. own behalf and he was the only witness who testified on the part of the appellant. His examination and cross-examination is quite voluminous. We have examined it very carefully and in detail and feel that it can serve no good purpose to burden this opinion with a detailed statement of his testimony. It is sufficient to say, after a careful analysis of all his statements, that it amounts to simply this, that he absolutely denies the killing of the deceased and denies the truth of the confessions, and also makes a denial that the confessions were made at all.

At the close of the evidence the court fully instructed the jury upon all the legal propositions to which there was any testimony applicable. It is not essential to reproduce the instructions, but we shall during the course of the opinion give those, the correctness of which is challenged, such attention as we deem necessary. The cause was submitted to the jury, and after due consideration they returned their verdict finding the defendant guilty of murder in the first degree and assessed his punishment at death. Timely motions for new trial and in arrest of judgment were filed and by the court taken up and overruled. Sentence and judgment were entered of record in conformity to the verdict, and from such judgment the defendant prosecuted this appeal, and the record is now before us for consideration.

OPINION.

It is apparent from the disclosures of the record-that this is a very serious case, being one in which the most severe punishment known to the law was imposed by the judgment of the trial court. Upon the part of the appellant we are not favored with any brief or suggestions respecting the complaints urged by the motion for new trial; however, in obedience to the requirements of the statute we have given the entire record very serious consideration, with the view of determining whether or not there was any reversible error in the trial of this cause. It may not be out of place to say that even in the absence of any statute requiring us to make this investigation the importance of this case would dictate a most careful consideration of every detail during the progress of the trial. There being no suggestions on the part of the appellant, he not be.ing represented in this court, we can only look to the errors as designated in the motion for a new trial.

I.

In the motion'for a new trial it is insisted that the court erred in permitting the State to indorse the names of material witnesses on the information after the case had been called for trial, over tbe objections of the defendant, and tbat tbe witnesses so indorsed were afterward introduced and examined. In tbis connection it is asserted in tbe motion for a new'trial tbat tbe prosecuting attorney knew from tbe very time of tbe homicide tbat these witnesses were important and material, and it is further stated tbat these witnesses were not previously known to tbe defendant to be witnesses against him. Upon this proposition it is sufficient to say tbat tbe record does not disclose tbat there was any motion to quash tbe information upon tbe ground tbat these witnesses were indorsed upon tbe information at tbe time of tbe trial; nor does it appear tbat tbe defendant, through bis counsel, made any complaint tbat be was taken by surprise by reason of tbe additional indorsement upon tbe information of these witnesses. An examination of tbe record discloses simply an objection by counsel for appellant to tbe indorsement of tbe witnesses and an exception to tbe ruling of tbe court in permitting such names to be indorsed on tbe information by tbe prosecuting attorney. There was no request for a continuance for a sufficient length of time to investigate concerning tbe additional witnesses so indorsed.

A similar proposition to tbe one now under consideration was presented to tbis court in tbe comparatively recent cases of State v. Bailey, 190 Mo. l. c. 278; State v. Myers, 198 Mo. l. c. 243; State v. Barrington, 198 Mo. l. c. 66; and it was expressly ruled in those cases, upon disclosures of tbe records very similar to those in the case at bar, tbat there was no error in permitting tbe indorsements to be made. Manifestly tbe defendant is in no position to complain at tbe action of tbe court in tbe absence of any suggestion of surprise, or an application for a continuance by reason of such surprise, with tbe view of making an investigation as to tbe additional witnesses. Tbis proposition was exhaustively treated in tbe cases of State v. Myers, State v. Barrington and State v. Bailey, supra, as well as in the case of State v. Henderson, 186 Mo. l. c. 482.

II.

The appellant complains in his motion for a new trial that the court erred in admitting illegal, incompetent, irrelevant and immaterial testimony. This complaint at least partly is directed at the admission of the numerous confessions made by the defendant concerning the commission of this offense. Upon that question it is only necessary to say that the record discloses great care upon the part of the trial court to first ascertain whether or not such confessions were obtained by improper inducements held out to the defendant. The trial court excluded the jury and made a preliminary examination upon the question as to the inducements held out to this defendant to make the confessions, and upon such examination the court ruled that the confessions were voluntary and admissible. In our opinion the action of the court in admitting the confessions of. the defendant was entirely proper. The record does not disclose any improper conduct on the part of the officers or any flattery of hope, promise of immunity, or use .of threats in order to induce the defendant to make such confessions, hence it follows that the confessions were voluntary and were admissible in evidence. It is hardly necessary to cite authorities upon this proposition; however, it was fully treated of and the rules clearly announced in State v. Brooks, 220 Mo. 74; State v. Wooley, 215 Mo. l. c. 682; State v. Spaugh, 200 Mo. l. c. 596; State v. Hottman, 196 Mo. l. c. 127; State v. Barrington, 198 Mo. l. c. 109; State v. Ruck, 194 Mo. l. c. 437, and numerous other cases. It must be held that there was no error in the admission of the confessions of the defendant in this cause.

Again under this assignment of the admission of illegal and incompetent evidence will be embraced the complaint lodged in the motion for new trial that the defendant was “cross-examined about matters not testified to in chief.” We have examined the disclosures of the record respecting the cross-examination of the defendant and have reached the conclusion that there is no merit in this assignment of error. The defends ant in his testimony in chief testified that he made the confessions at Carl Junction as testified to by different witnesses, and also that he signed a written confession to Judge Bright, but claimed that the first confessions were obtained by threats and duress, and that he did not know the contents of the written confession: This statement upon the part of the defendant opened a wide field for cross-examination. It was clearly proper on the part of the State to cross-examine the defendant fully as to the facts stated in the confessions, and this is all that was done. We are unable to find in the disclosures of the record any violation of the statutory rule that the defendant can only be cross-examined upon matters referred to in his examination in chief. [State v. Miller, 190 Mo. l. c. 462; State v. Avery, 113 Mo. l. c. 498; State v. Wertz, 191 Mo. l. c. 579, and numerous other cases.]

The next complaint embraced in the assignment of errors in the motion for a new trial as to the admission of improper and incompetent evidence, is that the State was permitted to introduce the rope found around the neck of the deceased upon the discovery ' of her body. This rope was fully identified by witness Chas. Roney as being the one found tied around the neck of the deceased; and one of the physicians testifying in this cause stated that the death of the deceased may have resulted from strangulation. We are of the opinion that this rope, after being identified, was clearly admissible in evidence.

III.

Another complaint urged and insisted upon in the motion for a new trial is that the court permitted one of the local attorneys, Mr. Andrews, who was of counsel for the State, to make an improper argument to the jury. Upon this .proposition it is sufficient to say that a careful examination of the bill of exceptions fails to disclose a proper preservation of objections and exceptions to the action of the court upon objections during the argument of Mr. Andrews; therefore, we take it that assignment of error is not before the court for review.

IV.

Appellant also lodges the complaint in his motion for a new trial that one Geo. W. Crowder, who liad been the attorney of the defendant in his preliminary hearing in this cause, took a seat at the counsel table for the State and began assisting the prosecuting attorney to select a jury in this cause. A careful consideration of the disclosures of the record makes it manifest that there is no merit in this assignment of error. The record discloses simply this: Mr. Sayler, who was representing the defendant, interposed an objection to Mr. Crowder sitting as counsel on behalf of the State in this trial on account of his being former attorney for the defendant. “By the Court: Objection sustained.” This is absolutely all that is embraced in the record concerning Mr. Crowder’s participation in this trial. The defendant interposed an objection to -his sitting as counsel on behalf of the State in the trial and the court sustained the objection. In other words, the court upon that proposition did what was requested by counsel for appellant. We are of the opinion that there is no merit in that complaint.

V.

It is insisted in the motion for a new trial and is assigned as one of the reasons why a new trial should be granted, that upon the showing made respecting newly discovered evidence the court should have granted a new trial. - The record upon this question discloses that an affidavit was filed by Walter B. Sayler in support of the motion for new trial asserting that other evidence had been discovered since the trial, detailing in hi's affidavit the substance of the evidence and the names of the witnesses who would give such evidence. It fully answers the assignment of error upon this proposition to simply suggest that the affidavit upon the subject of newly-discovered evidence is not supported by the oath of the appellant nor are there any affidavits filed by the witnesses who it is alleged would give certain evidence upon a new trial of this cause. The uniform rulings of this court upon that proposition are that the affidavit by counsel for appellant upon the subject of newly-discovered evidence is insufficient. In order to fully meet the requirements of the law as announced by this court in an unbroken line of decisions, the affidavit detailing the newly discovered evidence must have the support of the appellant himself as well as the witnesses by whom he expects to establish the facts he alleges have' been newly discovered. It really is not necessary to cite authorities upon this question, but the eases of State v. Flutcher, 166 Mo. l. c. 587; State v. Neasby, 188 Mo. l. c. 472; State v. Miller, 144 Mo. l. c. 30; State v. Bowman, 161 Mo. l. c. 94, fully treat of that question and correctly state the rules of law which have uniformly been applied to it.

VI.

The motion for new trial by the appellant directs attention to but one instruction of which it complains of the action of the trial court in giving it. The motion refers to this instruction as numbered 8, but manifestly it has reference to instruction numbered 7, for the reason that following the number of the instruction it is recited in the motion for new trial that the instruction “told the jury how they should construe what the defendant is alleged to have said against himself and how they might construe what he said at the same time in favor of himself. ’ ’ This recitation clearly pointed to what was said to the jury in instruction numbered 7, and we shall treat the complaint as referring to that instruction. Instruction numbered 7 was as follows:

“You are instructed that if you find and believe from the evidence that the defendant made any statement or statements in relation to the homicide charged in the information as to how said homicide was committed, you must consider such statement or statements altogether. The defendant is entitled to the benefit of anything he said for himself, if true, and the State is entitled to the benefit of anything he said against himself in any statement or statements proven by the State. What the defendant said against himself, the law presumes to be true, because said against himself. What the defendant said for himself the jury are not bound to believe, because it was said in a statement or statements proven by the State, but the jury may believe or disbelieve it as it is shown to be true or false by the evidence in the case. It is for you to consider, under all the evidence or circumstances, how much of the whole statement or statements of the defendant proven by the State you, from the evidence, may deem worthy of belief.”

In our opinion there is no substantial ground for complaint respecting instruction numbered 7. It has substantially, in the same form, met the approval of this court from its earliest history, commencing with the case of State v. Hays, 23 Mo. 287, down to the present time. In State v. Darrah, 152 Mo. l. c. 541, in discussing a complaint urged against an instruction in that case, in similar form to instruction numbered 7 in the case at bar, it was said that the instruction under discussion “has been approved so often in this State that we must decline to enter upon its defense. ’ ’ This court has in a number of cases expressly ruled that there was no error in declaring the law substantially as it is stated in instruction numbered 7, and we do not deem it necessary to burden this opinion with the citation of numerous cases supporting the conclusions as herein reached.

VII.

Finally the motion for a new trial assigns as a reason for the granting of a rehearing, that the verdict as returned by the jury is wholly unwarranted and manifestly rendered in utter disregard of the court’s instructions and the evidence before the. jury. Upon this proposition it will suffice, to say that we have substantially indicated the nature and character of the testimony developed'upon the trial of this cause, and in our opinion it cannot be seriously contended that there was not substantial evidence tending to show the guilt of the defendant of the offense of which he was convicted. In fact after a careful consideration of all the testimony developed upon the trial we see no escape from the conclusions that the jury could not, with any degree of reason for it, have returned any other verdict than the one returned in this cause. This is a very serious case and the results of it are quite important to the defendant. His counsel in the lower court presented his side of the case fairly and in a commendable lawyer-like way, and whatever may be the serious results confronting the defendant, at last they must be attributed to his own unlawful acts, which are so clearly disclosed by the record now before us. The defendant is not represented in this court, and we have, as heretofore indicated, fully considered the errors complained of in the motion for a new trial, and in the consideration of the complaints of such motion we have made an independent examination of the record with the view of ascertaining whether or not there was any substantial error by thé court in the trial of this cause. With that end in view we have analyzed in detail the entire disclosures of the record and from this examination we see no escape frbm the conclusion that the defendant was afforded a fair and impartial trial, and there is nothing left for this court to do except to give expression to its affirmance of the judgment. Entertaining the views as herein indicated, the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


author: GANTT, P. J.

text:
    THE STATE, Appellant, v. FRED FIREY.
    Division Two,
    November 23, 1909.
    1. PLEA IN ABATEMENT. A plea in abatement is the proper plea to bring to the attention of the court extraneous matters or matters outside the record proceedings which render- the indictment invalid; and when the plea sets up such matters it will not be held to be a motion to quash or a demurrer.
    2. -: Appeal by State. The State is not entitled to an appeal from the judgment of the circuit court sustaining a sufficient plea in abatement to the indictment.
    Appeal from Jasper Circuit Court. — Ho». Henry L. Bright, Judge.
    Appeal dismissed.

      Elliott W. Major, Attorney-General, James T. Blair, and Charles G. Bevelle, Assistant Attorneys-General, for the State.
    Is this appeal authorized by the statute?
    (1) Section 2709, R. S. 1899, provides that “When any indictment is quashed, or adjudged insufficient upon demurrer, or when judgment thereon is arrested, . . . the court may, in its discretion, grant an appeal. ’ ’ Section 2708 expressly limits the State’s right to appeal to the instances enumerated in section 2709. (a) It has been repeatedly held by this court that no appeal on behalf of the State lies except when the case is brought “within the precise cases and circumstances specified in the statute” quoted above. State v. Carr, 142 Mo. 609; State v. Clipper, 142 Mo. 476; State v. Cornelius', 143 Mo. 180. • (b) It has also been expressly held by this court that writ of error will not lie on behalf of the State to review a judgment on plea in abatement — the same rule being applicable to appeals. State v. Heisserer, 83 Mo. 692. The plea in this case was to the jurisdiction and not a plea in abatement, though so nominated, (c) A like ruling was made in a case in which the trial court sustained a special plea to the indictment. The State then, as in this case, demurred to the plea, stood on the demurrer and attempted to appeal from the judgment. State v. Rowe, 22 Mo. 328. (d) Under a similar statute, it was held no appeal by the State would lie in a. case in which defendant succeeded on his plea of former acquittal, the State’s demurrer thereto being overruled and acquittal ordered. State v. Minnick, 33 .Oregon 158. (e) In a case in which a plea, in abatement, both in name and in fact, was filed by defendant, demurred to by the State, demurrer overruled and plea sustained, an appeal by the State was permitted under a statute like ours, the court placing its ruling on the ground that “the legal effect of the judgment was the same” as if the indictment had been quashed on motion. State v. Manning, 14 Texas 405. This is the only case on the point in question which has come under our observation in which the plea in abatement was such in fact. If this Texas case is to be followed, the appeal in the case at bar is sustained. And this court once sustained an appeal by the State in a case in which the lower court discharged a defendant on a motion the ground's of which were that the indictment was not filed with the clerk because, for that reason, there was no indictment in the ease. State v. Clark, 18 Mo. 433. (2) Calling the plea filed a plea in abatement is not conclusive that it is one. Its character must he determined from its allegations, not from the label put upon it by respondent. State v. Bishop, •22 Mo. App. 439. The question is whether the plea or motion filed is, by reason of its substance, within either of the terms which are used in section 2709, R. S. 1899. (a) It clearly does not come under the last class designated by the section mentioned, (b) It is not a demurrer, since that goes to the sufficiency of the indictment as a charge of crime against defendant, and is not designed to raise questions of fact or any questions dehors the record. State v. Burgdoerfer, 10T Mo. 12; 1 Ohitty’s Crim. Law, p. 439; 1 Bishop’s New Crim. Proc., sees. 741, 777. Subsequent criticisms of the Burgdoerfer case do not go to the point on which we cite it here. (3) Was the plea or motion filed a plea in abatement? (a) It is so named by defendant, so referred to by the prosecuting attorney and the judgment is that the indictment “abate.” It is manifest, however, that none of these can give character to the paper filed by defendant. The substance of the allegations therein must determine that question. We think this true despite an intimation in one case that, where a plea has been filed and argued on demurrer as a plea in abatement, it cannot on appeal be treated as a motion to quash. Hope v. People, 83 Ni Y. 422. The plea in this last case was filed for matters it could not reach, though a motion to quash would reach them. People v. Hulbut, 4 Denio 136. (b) Demurrers, motions to quash and pleas in abatement are all accorded statutory recognition in this State. Sec. 2532", R. S. 1899; sec. 2562, R. S. 1899. (c) The question, then, is whether the plea filed was in fact a plea in abatement or a motion to quash. “The only pleas in abatement in criminal eases are, that the indictment gives the defendant no Christian or first name or a wrong one, no surname or a wrong one, no addition or degree of mystery or a wrong one.” 1 Archibald’s Cr. PI. (Waterman), p. 358. This rule finds some support in 1 Chitty’s Crim. Law, pp. 445', 447. Further, “A plea in abatement is principally for a misnomer, a wrong name or false addition to the prisoner,” and “it is a rule upon all pleas in abatement that he who takes advantage of a flaw must at the same time show how it may be amended.” 4 Blackstone’s Com., secs. 334-335. It would not be possible to apply this last rule to a plea in abatement if allowed as a means of attack upon the indictment for the irregularities set up by defendant in this ease. It is said by a modern author that the motion to quash seems an appropriate method by which to reach irregularities in the matter of the constitution of the grand jury, the return of the indictment, etc. 1 Bishop’s New Crim. Proc., secs. 763, 882. But the plea in abatement is resorted to in such, cases more frequently. 1 Bishop’s New Crim. Proc., secs. 791, 883. “Pleas in abatement are founded on some defect apparent on the face of the accusation or on some matter outside the record proceeding to the insufficiency of the accusation.” Bassett’s Crim. PI. sec. 178; 1 Bishop’s New Crim. Proc., sec. 738; 1 Chitty’s Crim. Law, p. 445'. It is also said that a plea in abatement is the proper mode of raising the objection that the indictment, was found by an illegal grand jury or illegally found by a legal grand jury. 12 Cyc., p. 718. One author says that in all eases ■ of contested fact, plea in abatement is the proper remedy. Wharton’s Crim. PI. and Prac., sec. 350, 3, b. And in Georgia it was held that the fact that the grand jury failed to return the indictment into open court was proper ground for plea in abatement. The question of practice was not discussed. Sampson v. State, 124 Ga. 779. In this State plea in abatement seems to be regarded as the proper method of attacking an indictment, for the reason that, unauthorized persons participated in the grand jury’s proceedings. State y. Salmon, 216 Mo. 503; State v. Sullivan, 110 Mo. App. 80. Another case quite impartially intimates that either the plea or the motion may be used to assail the “integrity or authenticity” of an indictment. State v. Runzi, 105 Mo. App. 390. Motions to quash sometimes reach matters not apparent on the face of the indictment. State v. Wall, 15 Mo. 209. If either the rule laid down in the Texas case cited, supra, or Archibald’s rule as to the limitations upon pleas in abatement is adopted, it would seem that the appeal in this case would lie. The apparent confusion in the American cases as to the proper function of the plea in abatement is, at least partially, due to the differences in the statutes in the several states. The same may be said of the motion to quash. However, according to some authorities, either the plea or the motion might be employed to reach some defects. 1 Bishop’s New Crim. Proe., secs. 739, 763, 767, 882, 883, 884, 884a; State v. Bordeaux, 93 N. C. 563.

      R. M-. Sheppard for respondent.
    (1) The State has no authority to appeal except in cases specifically provided for in the statutes; the statute providing for appeal by the State gives no authority to the State to appeal from an order or judgment sustaining a plea in abatement to an indictment. R. S'. 1899, sec. 2709; State v. Husserer, 83 Mo. 692; State v. Bollinges, 69 Mo. 577; State v. Burgdoefer, 107 Mo. 1. (2) The statute of the State provides that indictments and presentments made 'by a grand jury shall be presented by their foreman, in their presence, to the court.. Sec. 2512, R. S. 1899; 1 Bishop’s Crim. Proc., sec. 869, a-3 ; Hobert v. Hobert, 5 Iowa 503, 22 Cyc. 210; State v. Vincent, 91 Mo. 662; Groodson ,v. State, 29' Pla. 511; Thornell v. Peofiedfile, 17 Pac. 904. (3) The constitution of the State and our statute provide that the sitting of courts shall be public. Constitution, article 2, sec. 10; R. S. 1899, sec. 1597; State v. Woodson, 161 Mo. 453; State v. Pope, 110 Mo. App. 520; Ex parte Gardner, 22 Nev. 280; In re Choate, 18 Civ. Pro. Ref. (N. Y.), 186; Levy v. Bigelow, 34 N(. P. 130; Tissier v. Rhein, 130 111. 110; State v. Judges, 32 La. Ann. 1261; 8 Am. and Eng. Eney. Law, p. 22. (4) While the presumption of regularity attends the acts and proceedings of a court of general jurisdiction, this can be overcome by competent testimony. Church on Habeas Corpus, secs.- 368a and 368; Ex Parte Tony, 11 Mo. 661; 27 L. R. A. 76. The presiding judge of the circuit court has no right to be in the grand jury room during their deliberations, or to interfere with the acts, or to advise them as to whether an indictment should or should not be returned in any special case, and his presence and interference rendered the indictment void, and the circuit court cannot undertake to influence the grand jury without invalidating its indictment. State v. Salmon, 216 Mo. 466; State v. Wills, 65 N. W. 367; Clare v. State, 28 L. R. A. 367; State v. Tarlington, 102 Mo. 642.- (5) The indorsement on an indictment, “a true bill,” is required by the statute of this State and constitutes the law’s evidence that the requisite number of grand jurors concurred in finding the bill; and an indictment without this endorsement and signature is not an indictment in the regular sense of the word. R. S. 1899, secs. 2510 and 2511; State v. Bruce, 77 Mo. 195; State v. Squires, 10 N. H. 558.
   GANTT, P. J.

This is an appeal by the State-from a judgment of the circuit court of Jasper county overruling a demurrer filed by the State to a plea in abatement filed by the defendant to an indictment against him for setting up and keeping certain gaming tables and devices and with enticing and permitting certain persons to bet and play for money at and upon said tables.

The indictment and plea in abatement are in all respects the same as those in State v. Craig, handed down at this delivery, and reported at page 201 of this Report. For the reasons assigned in that case the appeal of the State must he dismissed, unless the contention of the State in this case, that the plea was not in fact and in law a plea in abatement, is sound. Pleas in abatement are founded on some defect apparent on the face of the accusation or on some matter outside the record proceeding to the insufficiency of the accusation.

‘ ‘ The rule is that all matters extraneous to the record must be taken advantage of by this plea; while such matters as appear by the accusation — errors apparent — are usually brought to notice by motion to quash, or demurrer, or left for motion in arrest in the event of conviction.” [Bassett’s Crim. Pl., sec. 178; 1 Chitty’s Crim. Law, sec. 445; 1 Bishop’s New Crim. Proc., sec. 738; 12 Cyc., p. 718; Sampson v. State, 124 Ga. l. c. 779; State v. Salmon, 216 Mo. l. c. 503; State v. Sullivan, 110 Mo. App. l. c. 80; State v. Bordeaux, 93 N. C. l. c. 563.]

That the plea alleged facts dehors the record for which the indictment should be quashed in the estimation of the defendant, is apparent, and the matters alleged were properly brought to the attention of the court in a plea, in abatement. [Wharton’s Crim. Pl. and Prac. sec. 350, 3b.]

Having reached the conclusion that these matters were correctly incorpo;rated in the plea in abatement and the circuit court having sustained the plea and abated the indictment and the State not being entitled to an appeal in such a case, the correctness of the ruling in sustaining the plea upon the grounds therein set forth is not within our province to determine, for the reason that we have no jurisdiction of the appeal.

The appeal is dismissed.

Burgess and Fox, JJ., concur.