text:
    THE STATE v. JOHN JAMES and CHARLES JOHNSON, Appellants.
    Division Two,
    February 2, 1909.
    1. BILL OF EXCEPTIONS: Defective Transcript. Where the record proper and hill of exceptions in a felony case are both embraced in the transcript, though matters of record proper are mingled in the bill, the errors complained of will be considered on appeal.
    2. INSTRUCTIONS: Ail the Law: No Request: Two Defendants. Where two defendants are tried together for a joint robbery, the court should instruct the jury that they may find one or both guilty or acquit one or both. But where defendants asked no such instruction, but did save an exception to the court’s failure to instruct on all the law of the case, and on making that objection were asked by the court to present any additional instructions they might desire, or to suggest to the court any questions upon which they desired additional instructions, with which request they did not comply, the judgment will not be reversed because the court failed to instruct that one or both defendants might be acquitted or one or both convicted.
    2. REMARKS OF ATTORNEY: Defendant As Witness. The statute prohibits the cross-examination of a defendant upon any matter not referred to in his examination in chief, and the right of the prosecuting attorney to comment upon the testimony of a defendant who offers himself as a witness in his own behalf, extends no further than his right to cross-examine him.
    4. -: -: Reversible Error. Counsel for the State in his argument to the jury, referring to defendants, said: “The only question that they would answer was that they didn’t rob the man;” and upon objection the court said, “Will let him discuss it;” and defendants saved an exception. While the prosecuting attorney was arguing the case, defendant’s counsel said: “Object to that statement of the prosecuting attorney saying they closed their mouths to everything except the bare statement that they didn’t get the money, and ask the court to rebuke the prosecuting attorney.” The court overruled the objection, and an exception was saved. The prosecuting attorney further said: “These men go through the country wrecking, beating and robbing our citizens,” and the court overruled an objection, and exception was saved. BeJcL, reversible error. The first two remarks were a direct comment upon the failure of defendants to testify to other facts concerning the case, and the other should not have been made.
    5. -: -: Saved For Review. It was not necessary in order to preserve these remarks of the State’s counsel to first quote their remarks just as made, and then make the objections, but they were sufficiently preserved for review. Counsel did not insist that they did not make such remarks, and the court recognized that they were made, and proceeded to rule upon objection to them just as if they had been made.
    Appeal from Pemiscot Circuit Court. — Hon. Henry C. Riley, Judge.
    Reversed and remanded.

      Sterling H. McCarty for appellants.
    (1) The court erred in failing to instruct on all of the law in the case in this respect, among others, that though defendants were jointly indicted and jointly tried, yet the court did not instruct the jury that they might find one or both the defendants guilty, or acquit one or both of them as they might find the facts to be. At the time the court instructed the jury, exceptions were taken by the defendants because the instructions did not include all the law in the case. The point was again clearly raised in the motion for a new trial. It was clearly the duty of the court to give an instruction on this phase of the case. Laws 1901, p.. 140; State v. Yaughn, 200 Mo. 1; Abrahams v. State, 121 Ga. 170; State v. Daniels, 115 La. Ann. 59. (2) The court erred in permitting counsel for the State to be guilty of, and counsel for the State were guilty of, misconduct on the trial of this case, in criticising defendants for failure to testify, in their closing argument to the jury. R. S. 1899, sec. 2637; State v. Weaver, 165 Mo. 12; State v. Snyder, 182 Mo. 527; State v. Fairlamb, 137 Mo. 150; State v. Graves, 95 Mo. 513.

      Herbert 8. Hadley, Attorney-G-eneral, and F. G. Ferris, Assistant Attorney-General, for the State.
    (1) So far as the transcript of the record discloses, there is nothing to distinguish the matters of record from those which are purely matters of exception, and the latter can only be made a part of the record by filing a duly authenticated bill of exceptions. Therefore, there is nothing in this case for the court to review but the record proper, (a) The bill of exceptions must be positively and plainly authenticated and identified at each end, or it will not be considered. Its place of beginning is not to be determined by conjecture. Reno v. Fitz Jarrell, 163 Mo. 411; State v. Baty, 166 Mo. 561; Olay v. Union Co., 2001 Mo-. 665. (b) Motions for new trial and in arrest, and the instructions have no place in the record proper, and in the absence of a bill of exceptions preserving the action of the court upon such matters, they cannot be considered in the appellate court. If the record proper is free from error, the judgment will be affirmed. State v. Herron, 199 Mo. 159; State v. Wright, 186 Mo. 121. (2) If defendants desired further instructions it was their duty, in fairness to the trial court, to offer same, or, at least, to call the court’s attention to any matter of law arising in the case upon which the court had failed to instruct. Defendants, having refused to speak when they would have been heard, will not now be heard when they would speak. State v. Barnett and Baker, 203 Mo. 640; State v. West, 202 Mo. 137; State v. Espenscheid, 212 Mo. 223; State v. McCarver, 194 Mo. 742; State v. Bond, 191 Mo. 563. (3) Defendants’ counsel did not directly quote the prosecuting attorney, and it is not clear whether defendants’ counsel was attempting to make an indirect quotation or attempting to state in his own language his own understanding or conclusion, which may have been an erroneous one, of what the prosecuting attorney had said. The trial court heard the exact language of the prosecuting attorney, as well as the objection of defendants’ counsel, and in clear view of all the facts overruled the objection. This court, not having the exact language of the prosecuting attorney before it in the record, cannot undertake to say that the trial court erred in permitting its use without rebuke.
   FOX, J.

The defendants in this cause appeal from a judgment of conviction of robbery in the first degree in the circuit court, of Pemiscot county, Missouri.

On the 14th day of November, . 1907, the prosecuting attorney of Pemiscot county filed in the office of the clei'k of the circuit court of said county an information, duly verified, charging the defendants with the crime of robbery in the first degree. Substantially, this information charged that the defendants, on the 20th day of October, 1907, in said county, feloniously did make an assault upon one Marshall Luther, and by putting the said Marshall Luther in fear of immediate injury to his person and' by force and violence and against his will feloniously and violently did rob, steal, take and carry away from the person of said Luther of his goods and property, the sum of $9.75, lawful money of the United States, of the value of $9.75. On the 25th day of February, 1908, both of the defendants waived arraignment and pleaded not guilty to the charge in the information. They were then pnt upon their trial before a jury upon said charge.

We deem it unnecessary to set out in detail the evidence on the part of the State or that in behalf of defendants. It is sufficient for the purpose of determining the legal propositions presented to briefly indicate the nature and character of the testimony developed upon the trial.

On the part of the State the prosecuting witness testified that the defendants accosted him near an old depot in the town of Caruthersville, and dragged him a short distance to a box car, which was standing on a side track near by. He further testified that they forced him into the box car, beat him on the head and arm with a cane and knocked him down with their fists in the car, and by this means took from his person $9.26 in money. He identified the defendants as being the parties who had robbed him.

The defendants upon their part testified in their own behalf and denied the charge in the information; denied having any knowledge of or acquaintance with Luther.

It further appears in evidence that the prosecuting witness, within a short time after it is claimed that he was robbed, reported the same to the town marshal, who went to the box car and found the defendants there and immediately searched them and found in their possession only the sum of four dollars and some cents.

The defendants introduced a witness by the name of Clay Secoy, who testified that, on the night and before the hour of the supposed robbery, the prosecuting witness was in a slum district of the town of Caruthersville, and was drunk, without money and asking for money to get a bed. The State, however, introduced testimony tending to show that this witness was unworthy of belief, or at least tending to lessen the weight of his testimony. It was shown by the State that Secoy was arrested the night of the robbery for playing a game of craps. Secoy, upon cross-examination, admitted that he had been frequently convicted of crime and had been imprisoned in the penitentiary, but said that he had been pardoned for the penitentiary offense. It was also shown by the defendants, upon the cross-examination of Luther, that he was resting under a charge pending against him in Dunklin county for assaulting some young men. There was other testimony introduced on the part of the defendants tending to show that the .prosecuting witness made conflicting statements as to the amount of money of which he was robbed, as well as the kind of money. There was other testimony on the part of the State tending to contradict testimony on the part of the defendants that Luther, the prosecuting witness, was drunk on the night of the robbery.

At the close of the evidence the court instructed the jury and the cause was submitted to them and they returned a verdict finding both of the defendants guilty and assessing their punishment at imprisonment in the penitentiary each for a term of ten years.

Timely motions for a new trial and in arrest of judgment were filed and by the court overruled. Sentence was pronounced and judgment followed in accordance with the verdict returned by the jury. Prom this judgment and sentence the defendants prosecute their appeal to this court and the record is now before us for consideration.

OPINION.

I.

At the very threshold of the consideration of this cause we are confronted with the challenge by the representative of the State of the sufficiency of the record to authorize a review of the errors complained of, except as they appear upon the record proper. Directing our attention to that question it must be frankly conceded that the transcript itself mingles matters of' record proper in the bill of exceptions, and the form in which this record is presented for our consideration is* by no means' to be commended. However, an examination of it convinces us that the entire record, both record proper and bill of exceptions, are embraced within this transcript; therefore, we will not deny the appellants the right to have the expression of the views of this court upon the errors complained of.

n.

The complaints of learned counsel for appellants, as indicated by the brief now before us,, are:

First. That the court failed to declare all the law to the jury which was- applicable to this case.

Second. That the court committed error in permitting, without rebuke, the attorneys prosecuting for the State to make improper remarks in their addresses to the jury, which were prejudicial to the defendants.

Upon the first proposition our attention is directed to the failure of the court to instruct the jury that they might find one or both of the defendants guilty or acquit one or both of them, as they might find the facts to be, and in support of this insistence, that the failure to so instruct the jury constitutes error, our attention is directed to the case of State v. Vaughan, 200 Mo. 1.

The disclosures of the record in the Vaughan case in respect to this particular proposition were entirely different from the record in the case at bar. In the Vaughan case the appellant prepared an instruction dedaring the law as defendants in the case at bar say it should have been declared. The court refused that instruction and this court held that it committed error.

The record in this case embraces the instructions given by the court as well as the exceptions taken by the defendants on the ground that the instructions did not include all the law in the case, hut it will be observed that it further discloses that upon the objection of counsel being interposed to the instructions of the court as not declaring all the law in the case, the court then requested the defendants to have their counsel present to the court such additional instructions as they might desire, or suggest to the court any questions upon which they desired the court to give additional instructions. This request the defendants did not comply with, nor did they present to the court any additional instructions or suggest any point upon which they desired the court to give additional instructions.

While courts should, where defendants are jointly tried, give the instruction suggested in' this case, yet under the disclosures of the record, where the court especially requested counsel to suggest in what particular the failure to fully instruct the jury consisted, and this request was ignored, we are inclined to the opinion that this failure, under the circumstances as indicated by the record, would not constitute such error as would authorize this court to reverse the judgment.

m.

This brings us to the consideration of the complaint so earnestly urged by counsel for appellants concerning the remarks of the attorneys prosecuting for the State.

The record discloses that there were two counsel representing the State. Mr. Corbett made the opening argument, and the record discloses that counsel for appellant objected to the remark of counsel that, “The only question that they would answer was that they didn’t rob the man.” The court, upon this objection being made, simply said: “Will let him discuss it;” whereupon counsel duly preserved his exceptions to the action of the court. Mr. McKay made the closing argument for the State. Counsel for appellants during this argument interposed objections and used this language: “Object to that statement of the prosecuting attorney saying they closed their mouths to everything except the bare statement that they didn’t get the money and ask the court to rebuke the prosecuting attorney.” The court overruled the objection, to which the defendants excepted. The further objection was made to the prosecuting attorney saying: “These men go through the country wrecking, beating and robbing our citizens.” The court overruled the objection to this remark and the defendants preserved their exceptions.

At the very inception of the discussion of this proposition the learned Attorney-General insists that the record does not properly preserve the remarks of the attorneys prosecuting for the State in this, that the remarks of the attorneys representing the State were simply preserved in the objection made by counsel for the defendants, and that in order to properly preserve such improper remarks it should be clearly stated that the prosecuting attorney made such remarks, quoting them just as made.

It is only necessary to say upon that question that in our opinion the improper remarks are sufficiently preserved in the record. Counsel for the appellants made the objection and stated what the remarks were. The attorneys representing the State were present. They did not insist before the court that they did not make any such remarks; nor is it disclosed by the record that the court did not fully recognize that such remarks were made, for the court proceeds to rule upon the objections just as made, and in one of the objections it is said, “The objection is made to the statement of the prosecuting attorney saying,” etc. That is a plain, clear statement that the prosecuting attorney made the remark in his address to the jury, and that they were made to the jury is sufficiently disclosed by the record for the reason that the attorneys representing the State and the court fully recognized that they were made, but evidently felt that it was legitimate argument.

It is expressly provided by the statute that a defendant criminally charged may testify in his own behalf, but the cross-examination of the defendant shall be limited to such matters as the defendant referred to in his examination in chief. Then follows the provision of the statute that if the accused shall not avail himself or herself of his or her right to testify, it shall not be construed to affect the innocence or guilt of the defendant, nor be referred to by any attorney in the cause, nor be considered by the court or jury before whom the trial takes place.

The same proposition that is involved in the case at bar, that is, whether or not the prosecuting attorney can comment upon the fact that the defendant who offers himself as a witness failed to testify as to every particular fact while on the stand to which no reference was made in his examination, has repeatedly been in judgment before this court. If the provisions of the statute, as heretofore indicated, are to be held as having any force or vitality, and the adjudications by the Supreme Court of this State interpreting the •true meaning and effect of such statements are to be longer followed, we see no escape from the conclusion that the remarks of the attorneys ■ representing the State, in their addresses to the jury as heretofore indicated, constitute reversible error.

It does not answer this proposition to say that this is a mere technicality. The law-making power of this State has prohibited the cross-examination of a defendant upon any matter not referred to in his examination in chief, and it has been expressly ruled by this court that the right of the prosecuting attorney to comment upon the testimony of a defendant who •offers himself in his own behalf, extends no further . than his right to cross-examine him in regard to matters testified to by him in his direct examination.

In State v. Graves, 95 Mo. 510, which was a charge of larceny, the defendant offered himself as a witness, and testified: “I never received any bottle of medicine of Hub Wright; had nothing to do with it.” This was the whole of his evidence. The prosecuting attorney in his closing argument was permitted by the court without rebuke (although objection was made) to comment upon the fact that defendant, when on the stand, could have told where he was on the night of the larceny, but failed to make any statement as to where he was. Judge Norton, speaking for this court, held that this constituted reversible error, and in discussing the proposition made reference to the provisions of the statute heretofore referred to, and then said: “If the statute forbids comment upon what he might have sworn to when he elects not to go on the stand, why does it not in its essence and spirit, when he elects to testify, also forbid comment up oil what he might have sworn to while on the stand , and which he elected, as under the statute he had the right to do-, not to testify about?” Upon this ground alone that cause was reversed and remanded for a new trial.

In State v. Elmer, 115 Mo. 401, this court, speaking through Judge Burgess, in treating of this question, in no uncertain terms announced the rule applicable to this subject. It was there said: “This court ■ in passing on this question in the case of the State v. Graves, 95 Mo. 510, held that the right of a prosecuting attorney to comment on the testimony of the defendant who offers himself as a witness in his own behalf extends no further than his right to cross-examine him in regard to matters testified to by him in his direct examination. [See, also, State v. Porter, 75 Mo. 171; State v. Douglass, 81 Mo. 231; State v. McLaughlin, 76 Mo. 320; State v. Patterson, 88 Mo. 88; State v. Chamberlain, 89 Mo. 129.] Governed, then, by the rule announced in these decisions the State would have no right to cross-examine the defendant as to where and how he got the money, had it been objected to, or whether he was guilty of hav-. ing stolen it, and if he had not gotten it from Minnie Lay. If, then, this be the rule as, laid down by this court, and we so understand it, the remarks objected to as herein set. forth were entirely out of the record, unauthorized by the evidence in the case and prejudicial to the rights of defendant. We are aware that a different rule was announced by Sherwood, J., in the case of State v. Jackson, 95 Mo. 623, and State v. Anderson, 89 Mo. 312, but, on the question now under discussion, these opinions were only concurred in by Brace, J., the other members of the court dissenting therefrom. Counsel in addressing juries in cases of this character have frequently been admonished by this court of the impropriety of making statements unauthorized by the evidence and facts, and thus inject error for which they have been and must continue to be reversed. We regret the necessity of having to reverse this case, as we are compelled to do under repeated adjudications, upon the ground alone of the remarks of the prosecuting attorney in his closing address to the jury.”

In State v. Fairlamb, 121 Mo. 137, it was again expressly ruled that it was improper to comment on defendant’s failure to testify to any particular fact, citing in support of such rule, State v. Graves, 95 Mo. 510; State v. Elmer, 115 Mo. 401; State v. Walker, 98 Mo. 1. c. 118.

The remarks of the attorneys prosecuting for the State, as preserved in the record, were a direct comment upon the failure of the defendants to testify to other facts concerning the case. In other words, they said to the jury, concerning these, defendants as witnesses, that “the only question that they would answer was that they didn’t rob the man,” and that “their mouths were closed to everything except the bare statement that they didn’t get the money.”

In State v. Graves, supra, the judgment was reversed npon the sole ground of improper remarks by the prosecuting attorney. To the same effect is State v. Elmer, supra, where the judgment was reversed upon no other ground than that the prosecuting attorney in addressing the jury extended his discussion of the defendant’s evidence beyond the limits of what he was authorized to do under the provisions of the statute, and it was there held that the comment by the prosecuting attorney on the testimony of the defendant who' offers himself as a witness in his own behalf extends no further than his right to cross-examine him in regard to matters testified to by him in his direct examination.

An examination of the cases heretofore cited will demonstrate that the remarks of the prosecuting attorneys were far less objectionable than the remarks complained of in the case at bar.

In this case manifestly the remarks as heretofore indicated, in effect were simply appeals to the jury that the defendants had declined to testify fully concerning this case, or as to any other facts in it with the exception that they didn’t rob the prosecuting witness. The language used is susceptible of no other interpretation, and unless we are willing to totally ignore the provisions of the statute, as well as the well-settled interpretations of them by this court, then there can be no escape from the conclusion that the remarks of the prosecuting officers in this case constitute reversible error.

We deem it unnecessary to discuss the complaint as to the other language used in which it was said in addressing the jury, referring to the defendants, that “these men go through the country wrecking, beating and robbing our citizens.” It is sufficient to say of, this remark that it should have been left unsaid. While it may be that these defendants are mere tramps and may be guilty of the offense charged, yet they are entitled to a trial according to the forms of law, and the prosecuting officers should confine their remarks to a legitimate discussion of the facts developed upon the trial and the instructions of the court applicable to such facts.

IV.

This brings us to the consideration of the suggestion by counsel for appellants that the testimony was insufficient to support the verdict. With this suggestion we are unable to agree. There was substantial testimony tending to show the guilt of defendants, and if the jury, who are the sole judges of the facts, believed such testimony to be true, it would furnish ample support for the conclusions reached, and their verdict should not be disturbed upon that ground.

We have indicated the errors for which this cause should be reversed, and while it may be stated, as above suggested, that the evidence was at least sufficient to support the verdict, yet the defendants have the undoubted right, under the provisions of the statute, to insist that the cause shall be fairly submitted to the jury, and that nothing shall be said or done by the prosecuting officers which violate the provisions of the statute or have a tendency to endanger a fair and dispassionate consideration of the testimony offered in proof.

Entertaining the views to which we have herein given expression, the judgment of the trial court should be reversed and the cause remanded for a new trial. It is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT P. J.

license: Public Domain

text:
    THE STATE v. VINCENT SARTINO, Appellant.
    Division Two,
    February 2, 1909.
    1. INDICTMENT: Unknown Deceased. An indictment charging defendant with murdering a person to the grand jurors unknown, which describes ' the deceased as John Doe, is sufficient.
    2. -: Motion to Quash: Disqualification of Grand Jurors. A motion to quash the indictment, made after the defendant had been arraigned and had pleaded not guilty, on the grounds (1) that the grand jury was not drawn in accordance with the statutes, (2) that they were not duly served ten days before the first day of the term, (3) that two of the grand jurors had served as petit jurors in said court within less than one year, and (4) because said grand jury was not duly charged by the judge of the court, was properly overruled.
    3. -: : Service on Petit Jury: Personal to Juror. The objection that a grand juror has served as a petit juror within one year, is personal to him, and an objection that he is exempt from grand jury service on that account is available only to him. It does not affect the validity of the indictment.
    4. MURDER: INSANITY: Instructions for Second Degree. Where defendant was clearly guilty of murder in the first degree, or guilty of no crime at all because of his insanity or because he was an imbecile, the court’s refusal to instruct on murder in the second degree, is not error.
    5. -: : No Motive for Crime. Defendant was an Italian, and he and some other Italians had gone from near St. Louis to Crystal City, and the next day to Festus to buy some1 cooking utensils, and as three of them were walking up the sidewalk defendant suddenly began to shout, “Me kill him,” and shot one of them, and fired twice at the others as they fled, followed by him. The others were not witnesses, and' could not be found. There was evidence tending to show that defendant was either an imbecile or at least partially insane at times, and equally satisfactory testimony that up to the time of the homicide he was sane. Held, there being but - one issue in the case, and that whether defendant was sane or insane, that question was for the determination of the jury; and while, if defendant’s father’s testimony is to. be credited, the- absence of any quarrel or any motive for the killing is the strongest indication of insanity, yet the threat of defendant to kill deceased and its execution and the absence of the companions of deceased, leave the impression that the real motive does not 'appear in the record; and the case having been submitted to the jury under very proper instructions, and all evidence offered by defendant having been admitted, the appellate court will not interfere with the jury’s verdict finding defendant guilty.
    6. VERDICT: Amendment: Punishment. It is the duty of the court to see to it that verdicts are in proper form. The verdict as returned read: “We, the jury, in the case of the State of Missouri against Vincent Sartino, find the defendant, Vincent Sartino, guilty of murder in the first degree'and we fix his punishment for the same at life imprisonment in the penitentiary.” The court being of the impression that the punishment clause of the verdict was not in proper form, requested the prosecuting attorney to prepare a proper verdict, and the jury then went to their room and afterwards returned the same verdict except the punishment was changed to “imprisonment in the penitentiary during his life.” Meld, entirely proper.
    Appeal from Jefferson Circuit Court. — Eon. Jos. J. Williams, Judge.
    Affirmed.

      Herbert S. Hadley, Attorney-General, and F. G. Ferris, Assistant Attorney-General, for the State.
    (1) (a) The indictment substantially charges every essential element of the offense of murder in the first degree. It fully informed defendant of the nature and cause of the accusation against him, and is sufficient. State v. Horn, 204 Mo. 528; State v. Richardson, 194 Mo. 329. (b) In charging murder it is not necessary to allege that the weapon was deadly and dangerous. State v. Hottman, 196 Mo. 122. (2) Defendant’s motion to quash the indictment was properly overruled. Said motion went to the competency of the grand jurors, who returned the indictment, and to the manner of choosing and empaneling them. The motion does not set forth any statutory ground for a challenge.. Furthermore, it was not shown that objection was made to the competency of the grand jurors before they were sworn. R. S. 1899, secs. 2487, 2488; State v. Crane, 202 Mo. 71; State v. Paulsgrove, 208 Mo. 206; State v. Speyer, 182 Mo. 92; State v. Holloway, 156 Mo. 222. (3) The only issue of fact in this case is the question as to whether defendant was sane or insane at the time he hilled his unoffending companion. While there was testimony tending to- establish defendant’s insanity, there was, on the other hand, ample testimony to justify the jury in reaching the conclusion that he had the mental capacity to distinguish between right and wrong with respect to his act. That issue was properly submitted to the jury upon fair and oft-approved instructions, and the record discloses no evidence that the verdict was the result of passion or prejudice. State v. Crane, 202 Mo. 85. (4) The court may give the jury a form for their verdict, and may require the jury to amend their verdict. State v. De Witt, 186 Mo-. 70; State v. Miles, 199 Mo. 554; State v. Jones, 106 Mo. 311; 1 Bishop, Grim. Proc., sec. 831.
   GANTT P. J.

At the January term, 1908, of the circuit court of Jefferson county, the grand jury returned an indictment against the defendant for murder in the first degree at said county on the 11th day of October, 1907, of a person whose true name to the grand jurors was unknown. On the 28th of that month, the defendant was duly arraigned and entered his plea of not guilty as charged in the indictment. Afterwards on the 30th of March, defendant filed his motion to quash the indictment on the ground that the grand jury which preferred the same was not drawn in accordance with the statutes of this State and were not duly served at least ten days before the first day of the term and because two of the grand jurors had served as petit jurors in said court within less than one year before the drawing of the said grand jury, and because the grand jury was not duly charged by the judge of the circuit court. This motion was heard and overruled on the first day of April, 1908. Afterwards on the 3rd day of April, 1908, the defendant was put upon his trial and found guilty of murder in the first degree and his punishment assessed at imprisonment in the penitentiary for life. Within due time the defendant filed his motions for a new trial and in arrest of judgment, which were heard and overruled, and afterwards at the same term the defendant was sentenced in accordance with the verdict and from that sentence he has appealed to this court. The defendant is not represented in this court by counsel.

The evidence on the part of the State, as well as on the part of the defendant, established that an Italian, whose name was unknown, was shot in the back of the head by the defendant and instantly killed, about one o ’clock of the afternoon of October 11, 1907, on the sidewalk about two' hundred yards east of the corporate limits of the town of Festus, as the deceased and two other Italians were going from Festus to Crystal City in Jefferson county. Mrs. Nettie Rowden and her niece, Miss Laura Ackerman, and Charlie Stratman, were witnesses to the killing. Mr. Stratman was driving a coal wagon eastward and was in the street opposite a few feet distant from the said Italians when the shooting occurred. Mrs. Rowden and her niece were traveling westward toward Festus, and had arrived within fifteen or twenty feet of the Italians at the time of the shooting. According to these three witnesses for the State the three Italians were running eastward on said sidewalk, and the defendant was about twenty or thirty feet behind the other two, who were running from him. The two in front were shouting something like “Hay! Hay!” and the defendant who was following immediately after them said, “Me Mil him, me Mil the son of a b---,” and as he said this he fired the fatal shot from a revolver. The deceased fell at the first shot. The defendant then fired two other shots at the other Italians, following them around Mrs. Rowden and Miss Ackerman into the road near Stratman’s team. The fleeing Italians picked up rocks from the road as if to defend themselves, and the defendant then turned and. went back westward in the road to Festus, where he met Marshal Griffin and surrendered himself. The two Italians who were with the deceased at the time he was shot, were witnesses, and could not be found.

The defense was insanity. The father of the defendant Salvatore Sartino testified that he was present on the 11th of October, 1907, and was one of a party of six Italians, including himself and the defendant, who had arrived at Crystal City that morning from Dago Hill in St. Louis. They had rented them a shanty at Crystal City, and left their valises and come to Festus together for the purpose of buying some cooking utensils. They, had finished their purchases, had eaten their lunch, and started back to Crystal City when the shooting took place. The four Italians who formed the party with himself and defendant were strangers to him, and to the defendant. He and the defendant had not met them prior to that day, when an acquaintance was struck up as they were going to Crystal City in search of work. He testified that there had been no quarrel between the defendant and any member of the party prior to the shooting. He said that they were leaving the town of Festus on this occasion and the defendant stopped and for a time contemplated a show picture on a billboard, while he and the other Italians walked on slowly. After some minutes, about ten minutes he thought, the defendant came running after them and just as he overtook them, he exclaimed,’ “Stop or I will kill you,” and fired the fatal shot as he said this. The defendant was only about three feet from his victim when he shot, and he had uttered no words prior to the time of the shooting. The defend■ant fired two other shots and then retreated np the road to Festns. This witness described the defendant as looking “wild and crazy” at the time of the shooting. He had endeavored to talk to the defendant abont the homicide since that day, bnt had never been able to get any satisfactory statement ont of him. This witness stated that he was forty-five years old; had been in the United States ten months; that his father, the grandfather of the defendant, had died of cholera before the witness was born, bnt it was a matter of family history that said grandfather Sartino was “kind of off; a little wild; ont of his mind;” that said grandfather sometimes beat his wife and that his mother, the grandmother of the defendant, was afflicted with insanity and died of that disease. He also testified that defendant’s maternal grandmother “gets kind of crazy and takes a stick and beats the married daughter, and everything like that.” He stated that defendant was his oldest child, and was abont twenty years old. Defendant was raised in Italy in a home which consisted of two rooms over a shop. The boy was never in school and had no education. He began helping in witness’s blacksmith shop at the age of seven years and continued his work in the blacksmith shop ■until he came to America when he was abont seventeen years old. At the age of thirteen years, defendant was severely frightened by an old lady, who came upon him with a stick while he was playing with a little girl in the street, and defendant had never been any good since. He was treated eight days by a doctor and fifteen days by another doctor and then resumed his work in the blacksmith shop, bnt after that scare defendant would have spells lasting one or two hours abont every two or three months. At such times he would shake his head and drop to the floor, lie there awhile and then get np and shake his head and he would then resume his work. He accounted for several scars on the defendant’s head by saying they were caused by knocking Ms head against the wall when in these spells. He testified that these spells continued up to the time defendant left Italy for America. He did not know of his having had any of these spells in America. Since the defendant had been in America he had sent his father out of Ms earnings $340.

Russell Antonio, a brother-in-law of defendant’s father, testified that he did not know that his sister, the mother of the defendant, ever had had any disease of the mind. He corroborated the father as to the scare which had been given the defendant when he was thirteen years of age. He also stated that the defendant’s maternal grandmother was ‘ ‘ kind of light headed,” and at times she would feel dizzy in the head. For ,a number of months defendant had lived with witness at Dago Hill, and he had not known of his having a spell or fit during that time, although he knew he had them in Italy.

The defendant also proved by two other witnesses that since the homicide on one occasion the defendant had had a spell when his father endeavored to talk with him, he doubled up in his chair, shaking his head all the time, slapping at his father and acting as if he did not want Ms father to speak to him. One witness said defendant appeared like he was wild and another said he thought it was just as much meanness as anything else.

Charles E. Waters, a witness for the defendant, testified that he was in jail with the defendant before defendant’s preliminary trial; that defendant had a very poor knowledge of the English language, he spoke a broken Italian. During the time he was in jail with the defendant he acted lively and friendly at times and then again he was very morose. Defendant told him that he had shot one man in the back of the head and had also shot another man, and that he did the killing becaused the deceased had killed Ms father.

Three other witnesses testified to a fight that defendant had in the jail with a prisoner named Mike.

Charles Frazier, deputy sheriff and jailor, testified to the defendant’s conduct in jail, and gave it as his opinion that the defendant was perfectly capable of distinguishing right from wrong at all times he saw him, unless it was the one time in the office, on which occasion he thought he might be putting on.

The picture on the billboard, which was referred to as the one the defendant had looked at just before the shooting, was one in which one man was represented as having a paper and another man was holding him up with a gun, at the same time reaching up to secure the paper.

The two Italian interpreters testified that they had endeavored to converse with the defendant since the homicide, but had failed to elicit any intelligent statement.

Dr. J. Ei. Jones, the jail physician, testified that he had examined the defendant and in his opinion he was an imbecile, and a criminal. He testified that imbeciles do not have delusions. He testified that, if the facts included in the hypothetical questions propounded by the prosecuting attorneys, were true, defendant was not an imbecile.

Dr. Thomas B. Taylor, a physician and surgeon of thirty-six years practice, and who had had experience practicing in an insane asylum, gave it as his opinion on hypothetical questions propounded by defendant’s counsel, and without having examined the defendant, that defendant was not responsible and was to a limited degree insane. On cross-examination he stated that if a man commits an act and was afterwards able to tell all about it, he was not in a condition of imbecility or insanity at the time he committed the act.

Henry Dahl, the sheriff of the county, testified for the State in rebuttal, that he had seen the defendant while in jail almost every day and often several times a day, and had frequently talked with him. He said that the defendant was able to speak English to a small extent, and from his conversation with him and his observation of the defendant’s action while in jail and in his custody, in his opinion he was not insane. He had never seen him act in any way that indicated insanity, but once in a while he would get mean, get to cutting up and make a disturbance, which was a very common occurrence with men confined in jail.

I. The indictment is in all respects sufficient and in the often-approved form. It described the deceased as John Doe (whose true name was to the grand jurors unknown) and this was sufficient.

II. . The motion to quash the indictment because of irregularities in the drawing and summoning the grand jury, made as it was after the defendant had been arraigned and had pleaded not guilty, was properly overruled. The challenge was to the array and neither of the grounds allowed by the statute was alleged, to-wit, that either of the grand jurors was the prosecutor or complainant or a witness on the part of the prosecution. [Secs. 2487 and 2488, R. S. 1899; State v. Crane, 202 Mo. 1. c. 71, et seq.; State v. Holcomb, 86 Mo. 371.]

As to the objection that two of the grand jurors had served as members of the petit jury selected as members of the grand jury which returned the indictment, it suffices to say that this objection was not made before the grand jury was sworn. [Sec. 3763, R. S. 1899.] This objection was unavailable any way to any one but the jurors themselves. As they did not claim their exemption when they were sworn, and it not appearing that they were objectionable for any other reason, the motion was properly overruled on this ground also. Provisions of this character have generally been held to be directory only. [State v. Griffin, 87 Mo. 608, and cases cited.]

III. The instructions given by the court covered every phase of the case and those -on insanity as a defense were such as have often been expressly approved by this court. There was no error in refusing those requested by defendant for the reason that those given by the court fully presented the law of the case. Clearly there was no error in refusing the instruction prayed by defendant on murder in the second degree. There was not a circumstance to reduce the homicide to any degree less than murder in the first degree, if the defendant was sane.

IY. In view of the testimony of defendant’s father, there was but one question of fact to be determined by the jury, and that was the sanity or insanity of the defendant. There was evidence tending to show that the defendant was either an imbecile or at least partially insane at times and yet there was equally, if not more satisfactory evidence that, up to the time of the homicide, he was sane. The absence of any quarrel, if the father’s testimony is to be credited, or any other apparent motive for the killing, is really the strongest indication of insanity, but the threat of the defendant and its execution and the absence of the other Italians, leaves the impression that the real motive does not appear in the record. On this question the court admitted all the evidence for defendant and gave as favorable instructions as defendant could desire and the jury who were charged with the duty of finding the fact, with a much better opportunity to observe than we, found against defendant’s plea of insanity and we cannot say there was not sufficient evidence to justify them in so doing. Certainly there is nothing in the record to indicate passion or prejudice in reaching the verdict.

Y. In the absence of any assistance by way of argument or brief on the part of the defendant, we have looked to the motions for new trial and in arrest of judgment to ascertain the grounds of complaint and among those not already noted is an exception to the action of the court in having the jury correct the form of their verdict. As originally returned into court, the verdict was, “We, the jury, in the case of the State of Missouri against Vincent Sartino, find the defendant, Vincent Sartino, guilty of murder in the first degree and we fix his punishment for the same at life imprisonment in the penitentiary.” The circuit court being of opinion that the punishment clause of the verdict was not in proper form, requested the prosecuting attorney to prepare a proper verdict, and the jury then were sent to their room and afterwards returned the same verdict except it changed the punishment to “imprisonment in the penitentiary for and during his life.” This was entirely proper. The court not only may but ought to see that verdicts are in proper form. Certainly in this case there is absolutely no doubt that the verdict as amended was in effect the same as that first returned into court except it was in proper form. [State v. DeWitt, 186 Mo. 70; State v. Miles, 199 Mo. 554.] A consideration of the whole record discloses no reversible error and accordingly the judgment must be and is affirmed.

All concur.


author: FOX, J.

text:
    THE STATE v. LOUISA ZIMMERMAN, Appellant.
    Division Two,
    February 2, 1909.
    APPELLATE JURISDICTION: Local Option Law: Constitutionality. The present Local Option Law has been declared to be constitutional so often that its constitutionality is no longer a debatable question. The appeal from a judgment convicting defendant of a violation of said law, is, therefore, not to the Supreme Court, but to the proper Court of Appeals, if the alleged unconstitutionality of that law is the only ground upon which the Supreme Court could take jurisdiction.

      Appeal from Newton Circuit Court. — Row. F. G. Johnston, Judge.
    Transferred to St. Louis Court of Appeals.

      D. W. Roper and R. M. Sheppard for appellant.
   FOX, J.

The defendant has brought this cause to the Supreme Court by appeal from a judgment of conviction in the Newton Circuit Court, for a violation of what is commonly called the Local Option Law.

On March 22, 1907, the prosecuting attorney of Newton county, in vacation, filed in the office of the clerk of the circuit court an information embracing four counts, charging the defendant with a violation of what is commonly known as the Local Option Law. To this information defendant filed a motion to quash, which was by the court sustained. The prosecuting attorney, on April 29, 1908, filed an amended information consisting of four counts, all of which charged violations of the Local Option Law. To this information the defendant waived formal arraignment and entered a plea of not guilty. Subsequent to this there was filed by the defendant a motion to quash said amended information, because the act of the Legislature, known as the Local Option Law, is unconstitutional, being in violation of section 53 of article 4 of the Constitution of the State of Missouri. This motion was overruled. The trial then proceeded upon the amended information and the defendant was found guilty and her punishment assessed at a fine of three hundred dollars.

Apparently, from the disclosures of the record, because the constitutionality of the Local Option Law was challenged in the motion to quash, the trial court granted an appeal from the judgment in this cause to this court.

At the very threshold of the consideration of this canse we are confronted with the proposition as to whether or not this conrt should take jurisdiction in this proceeding.

In State v. Campbell, 214 Mo. 362, this court fully reviewed the authorities upon this proposition. The case was a similar one to the case at bar, and it was expressly held that this court should not take jurisdiction of the cause.

We deem it unnecessary to repeat what was said in the Campbell case, and seeing no valid reason for departing from the conclusions reached in that case, it must be held decisive of the question as to the jurisdiction of this court involved in the case now in hand.

It is, therefore, ordered that this cause be transferred to the St. Louis Court of Appeals for final determination.

All concur.


author: FOX J.

text:
    THE STATE v. JESSE WATSON, Appellant.
    Division Two,
    February 2, 1909.
    1. INFORMATION: Sufficiency: Manslaughter in Fourth Degree: Operating Automobile. The statute (Sec. 1834, R. S. 1899) provides that the killing of a human being by the act, procurement or culpable negligence of another, which would be manslaughter at the common law, and which is not excusable or justifiable or is not declared in the same chapter to be manslaughter in some other degree, shall be deemed manslaughter in the fourth degree; and an information founded thereon, charging the offense in the language of the statute, and charging that defendant carelessly, recklessly and with culpable negligence operated and propelled his automobile along a public street at and upon deceased, etc., sufficiently charges the statutory offense. It was not essential that the information undertake to set out in detail in what such carelessness, recklessness and culpable negligence consisted.

      2. AUTOMOBILE: Speed: Experts. The rate of speed at which an automobile was run is not a matter exclusively for expert testimony. Witnesses who know what an automobile is and have seen them operated, may give their opinion as to' the rate of speed. The'weight to which such opinions are entitled is a matter for the jury.
    3. -: -: Carelessness. Three girls, the deceased thirteen years old, were about ten o’clock at night crossing an asphalt-paved street, at a street crossing, where the view was unobstructed and lights were going. Deceased was struck by an automobile driven by defendant, knocked down, and the wheels ran over her body. There was loud screaming, and defendant testified that he was running ten miles an. hour, did not stop, and did not know he had struck anyone. (Other witnesses testified that the automobile was running from thirty to fifty miles an hour, and some of them gauged the speed by their acquaintance with the speed of bicycles, sleeping cars and buggies, and some of them were near at hand and others one hundred and seventy feet away. The testimony for the State overwhelmingly shows that the automobile was being run at a careless and reckless speed, and, Held, that this recklessness and carelessness is emphasized by the uncontradicted testimony as to the loud screams of the little girls and by the testimony of defendant that he did not hear those screams and did not know he had struck deceased, and was sufficient to sustain a verdict finding defendant guilty of manslaughter in the fourth degree.
    4. -: -: -: Duty of Driver. Individuals or corporations, operating a dangerous machine in a public street, such as an automobile, must have due regard for the rights of the public, and if they fail in this and recklessly, negligently and carelessly destroy human life, an impartial administration of justice, requires that they should suffer the punishment imposed by the stati tes.
    Appeal from St. Louis City Circuit Court. — Hon. Hugo Muench, Judge.
    Aeeirmed.

      T. J. Roive, Thos. J. Rowe, Jr., and Henry Roive for appellant.
    (1) The information fails to allege facts sufficient to constitute the offense denounced by Sec. 1834, R. S. 1899. No facts are alleged. The only fact alleged in the information is that the automobile operated by defendant struck Christine Musick, and that death resulted from her injuries. No specific acts done or omitted by defendant from which culpable negligence could be inferred are alleged in the information. The information should allege specifically the culpable negligence which caused the collision and resulted in the death of Christine Musick. The rule of pleading in a civil case is that the acts done or omitted which constitute the negligence complained of should be stated with a reasonable degree of particularity. Gurley v. Railroad, 93 Mo. 445. There can be no recovery upon a general allegation of negligence which gave no notice of facts, but states only conclusions. Murdock v. Brown, 16 Mo. App. 549. Can you glean from the information the acts done or omitted by defendant which constituted his culpable negligence in the operation of the automobile? Was it running the machine at a high rate of speed? Was it failure to sound a horn when approaching the street crossing? Was it failure to have lights on machine? Was it failure to stop machine when he discovered or could by the exercise of ordinary care have discovered that deceased was in a position of danger? Was it for a violation of the State statute by running an automobile in the business portion of the city of St. Louis at a rate of speed exceeding eight miles? Did he violate the speed limit by running in the city of St. Louis at place other than the business portion of the city at a rate of speed exceeding ten miles an hour? The instructions given by the court demonstrate that allegations of specific facts should have been made to notify defendant of the acts of commission or omission which constituted his culpable negligence. The innocence of the accused is not inconsistent with the averments of the information. On the subject of indictments under section 1834, supra, see following: State v¡ Smith, 66 Mo. 92; State v. Sundheimer, 93 Mo. 311; State v. Lockwood, 119 Mo. 463. Culpable means deserving of censure, criminal. The information should allege the culpable negligence, the acts which were criminal and deserving of censure. (2) That it was reversible error to permit witnesses for the State who knew nothing about the operation of automobiles to guess at the rate of speed at which the automobile was running just before deceased was struck requires no argument.

      Herbert 8. Hadley, Attorney-General, and F. G. Ferris, Assistant Attorney-General, for the State.
    (1) The information sets forth facts sufficient to charge manslaughter in the fourth degree under the statute. R. S. 1899, sec. 1834; 2 Bishop’s New Grim. Procedure (4 Ed.), see. 502; People v. Pearne, 118 Cal. 157; State v. Sundheimer, 93 Mo. 313; State v. Lockwood, 119 Mo. 463; State v. Moore, 129 Iowa 514. (2) The trial court committed no error in permitting witnesses to testify as to the rate of speed at which the automobile was running, (a) Witnesses who are not experts are competent to give their opinion as to whether a body is moving fast or slow. The rate of speed of moving cars may be shown by the opinion of a witness who saw the cars in motion. The experience and capacity of the testifying witness, and the consequent reliability and value of his testimony, would affect the weight, but not the competency and admissibility, of the evidence. Lawson on Expert and Opinion Evidence (4 Ed.), 504, 505. 1 Elliott on Evidence, secs. 676, 683; Walsh v. Railroad, 102 Mo. 586; Stotler v. Railroad, 200 Mo. 123; Aston v. Railroad, 105 Mo. App. 231. (b) The testimony of witnesses as to the rate of speed of the automobile as it approached or departed from the immediate scene of the tragedy was competent and admissible, and it was for the jury to give it such weight as they might think it entitled to, in connection with all the other evidence in the case, in determining the manner in which the automobile was being operated at the time deceased was struck. Lynch v. Railroad, 208 Mo. 38.
   FOX J.

This cause is now before this court upon appeal by the defendant from a judgment of conviction of manslaughter in the fourth degree in the circuit court of the city of St. Louis.

On. the 25th day of November, 1907, the assistant circuit attorney of the city of St. Louis filed an information, duly verified, in the circuit court of the said city, charging the defendant with manslaughter of the fourth degree. As the sufficieny of the information is challenged it is well to reproduce it. Omitting formal parts the charge is thus stated:

“Richard M. Johnson, assistant circuit attorney, in and for the city of St. Louis aforesaid, within and for the body of the city of St. Louis, on behalf of the State of Missouri, upon his official oath, information makes as follows:
“That Jesse Watson on the thirty-first day of October in the year of our Lord, one thousand nine hundred and seven, at the city of St. Louis aforesaid, with force and arms, in and upon one Christine Musick, feloniously, carelessly, recklessly and with culpable negligence did then and there make an assault; and that the said Jesse Watson was then and there in charge and control of and operating and managing a certain automobile, moving and being propelled along and upon Locust street, a public highway of the said city of St. Louis; and that the said Jesse Watson then and there, at said city of St. Louis, on said thirty-first day of October, one thousand nine hundred and seven, feloniously, carelessly, recklessly and with culpable negligence, did drive, propel and force said automobile with great force and violence at, against and upon said Christine Musick, and then and there feloniously, carelessly, recklessly and with culpable negligence, did with great force and violence throw and cast said Christine Musick to the ground and pavement, and drive, propel and force two of the wheels of said automobile against, upon and over the head and body of said Christine Musick, then and there feloniously, carelessly, recklessly and with culpable negligence giving to the said Christine Musick by means of said throwing and 'easting upon the ground and pavement, in and upon the head of the said Christine Musick, three blows, and shock and concussion of the brain, of which said blow on the head and said shock and concussion of the brain she the said Christine Musick then and there did languish, and languishing did live from said thirty-first day of October, A. D. 1907, to the third day of November, A. D. 1907, on which said third day of November, A. D. 1907, the said Christine Musick, of the said blow on the head and said shock and concussion of the brain, at the said city of St. Louis, did die.
“And so the said Richard M. Johnson, assistant circuit attorney, as aforesaid, upon his official oath aforesaid, does say that the said Jesse Watson, on the said thirty-first day of October, 1907, at the city of St. Louis aforesaid, her the said Christine Musick in the manner and form and by the means aforesaid then and there feloniously, carelessly, recklessly and with culpable negligence did kill and slay; against the peace and dignity of the State.”

On the 27th day of November, 1907, the defendant was duly arraigned and entered his plea of not guilty. The cause was then continued to the next term of said court, at which time the defendant interposed a demurrer to the information, which was by the court overruled. On the application of the defendant the cause was again continued. On the 12th day of November, 1908, the trial of said cause was begun and upon said trial the evidence developed tended substantially to show the following state of facts:

The deceased, Christine Mu sick, aged twelve years, with her sister, Helene Mnsick, aged fourteen years, and Ethel Dickson, a girl friend, on the evening of the 31st day of October, 1907, attended a musical at the Lucas Avenue Presbyterian Church in said city. A little past the hour of ten that night, the said three girls, having left said church for their homes, walked southward on the west side of Channing avenue, in said city, and as they were crossing Locust street, an automobile, driven by the defendant, struck the deceased, Christine Musick, with great force, knocking her down, breaking her limbs and bruising her head, from which injuries on the 3rd day of November, 1907, she died. Several witnesses testified that immediately after the passing of the automobile Christine was found lying in Locust street, four to six feet from the curbstone, on the north side of said street, where pedestrians on Channing avenue cross Locust street. In the street near her were found broken parts of her watch, which she was carrying when struck. She was found in an unconscious condition, and never regained consciousness. She was removed to a pharmacy, and from there to a hospital, where she died. From the intersection of Channing avenue and Locust street, the former running north and south and the latter east and west, the scene of Christine’s injury, there was a clear and unobstructed view for as much as four hundred feet in each of the four directions. At that time numerous lights were shining brightly in that neighborhood, which was a section of the city principally built up with structures devoted to business, together with some residences. Locust street at that place was paved with asphaltum, and it was crossed by street car trades running north and south on Channing avenue. The space of the street within the street car tracks, and for about a foot and a half on either side, was paved with granite blocks. At the time the girl was struck, she and her companions had taken but a few steps on Locnst street in their movement southward in crossing the same. The automobile, which struck and killed the little girl, came from the eastward at a high rate of speed and passed on to the westward without halting after striking her. The automobile was occupied by several persons, includ- , ing one or more women, and the defendant, who was driving the same. At and near the intersection of Channing avenue and Locust street at that time were numerous persons passing to and fro. Nearly all of the twelve witnesses who testified for the State were close enough at the time to hear the screams of the\ girls at the time Christine was struck, but no witness testified to having heard the sounding of the horn of the automobile, or other warning sounds of its approach, to the girls. Max Zimmerman testified that he was>about four or five steps behind Christine when she was struck, and that he immediately sprang to her relief, and as he was about to pick her up he noticed the automobile had arrived opposite a factory eighty feet distant. He had been a bicycle racer and was accustomed to estimating the speed of moving objects, and he gave it as his opinion that the antomobile at that time was running at the rate of about fifty miles per hour. In response to the question of a juror as to whether he considered that the automobile was running at a moderate rate of speed, or at a high rate of speed, fast or slow, he answered that it was running fast. He said that he came to the conclusion that it was running fast because he saw it and heard it. Several witnesses who saw the said automobile running on Locust street within a block east of Channing avenue, and also several witnesses who saw the automobile running within a block or two west of Channing, all testified that defendant was driving said automobile at a high rate of speed. Peter A. McDaniel swore that he saw the automobile crossing the tracks on Channing avenue just before it struck the girl, and it was at that time going very fast. Helene Music!?, who was present when her sister was struck, said that, as she went on across the street, she looked at the passing automobile, and it was going very fast, and was out of sight right away. George D. Pettes, a police officer, who formerly had been a Pullman-car conductor, and had had opportunity and experience in respect to observing the speed of running trains, testified that at the time in question he was at the northwest corner of Channing avenue and Olive street, about 170' feet south of the south line of Locust street, from which position he saw defendant driving the car across Channing, and heard the screams of the girls. He testified that the automobile, as it crossed Channing avenue on Locust street, was running at the rate of about forty miles an hour. David A. Peinenstein testified that about ten o’clock on the night in question he was driving with his wife and baby in a buggy westward on Locust street, and when on Locust street, about 135 feet east of Channing avenue, defendant passed him with his automobile. Witness was driving a fast horse at full speed at the time the automobile passed him. The automobile passed his buggy at such a high rate of speed that it frightened his wife as it rushed by. He observed the automobile passing onward across Channing avenue, heard the screams of the girls, and saw Christine’s companions escaping the automobile. He had had experience in the speed of moving objects, given by bicycle riding, and h'e was of the opinion that defendant’s automobile crossed Channing avenue at a speed of from forty to fifty miles an hour. He said that after the child was struck the machine veered towards the curbstone on the south side of Locust street and tilted, and it looked like it would turn over, running- as if standing on its left wheels. As it veered, he saw two persons standing up in it as if one were trying to pull the other down. The automobile, without halting, passed rapidly onward from view.

The defendant offered several experienced automobile men as witnesses, who testified, as experts, that it was not possible to operate such a machine as the one in question, making the turns described in evidence, at the rate of forty miles an hour. They conceded that such a speed could have been made at the rate of twenty to thirty miles an hour. They also testified that such a machine running twenty-five miles an hour could be stopped still while running a distance of fifty feet, and that the speed of such a machine running forty miles an hour could be reduced to twenty-five miles an hour while running fifty or sixty feet. It also appeared from their testimony that he had at former times participated in the racing of automobiles.

The defendant, taking the witness stand in his own behalf, testified that he was twenty-five years of age, and that he was operating the automobile car at the time in question. He said that at the time he crossed Channing avenue he was running about ten miles an hour, and that after crossing Channing avenue he did not know that his car had struck anybody.

At the close of the evidence the court fully instructed the jury upon every phase of the case to which the testimony was applicable. The cause was submitted to the jury and they returned their verdict finding the defendant guilty of manslaughter of the fourth degree, as charged in the information, and assessed his punishment at a fine of one thousand dollars and imprisonment in the city jail for a term of twelve months.

Timely motions for new trial and in arrest of judgment were filed and by the court overruled, and judgment was rendered in accordance with the verdict returned by the jury, and from this judgment the defendant prosecuted this appeal and the record is now before us for consideration.

OPINION.

The legal propositions disclosed by the record, as well as the brief of learned counsel for appellant, may thus be briefly stated:

First- — -It is insisted that the information fails to allege facts sufficient to constitute the offense denounced by section 1834, Revised Statutes 1899.

Second — That the court 'committed reversible error by permitting witnesses for the State, who knew nothing about the operation of automobiles, to give their opinions as to the rate of speed at which the automobile was running just before deceased was struck.

Third — Complaint is made that the assistant cir■'cuit attorney made improper remarks in his argument on behalf of the State to the jury.

I.

Directing our attention to the first proposition as to the sufficiency of the information to support the judgment, we find that the information charges the defendant with the commission of manslaughter of the fourth degree, and is predicated upon the provisions of section 1834, Revised Statutes 1899', which provides:

“Every other killing of a human being by the act, procurement or culpable negligence of another, which would be manslaughter at the common law, and which is not excusable or justifiable, or is not declared in this chapter to be manslaughter in some other degree, shall be deemed manslaughter in the fourth degree.”

The question involved in this proposition seems to be one of first impression so far as the adjudications of this court are concerned. Counsel representing both the State and the defendant have not directed our attention to any case predicated upon a similar state of facts, nor have we been able, after diligent search, to discover any adjudications which are specially applicable to the point involved; hence the solution of this proposition must be sought by the application of well-settled principles to the proposition confronting us.

It is fundamental that an indictment or information predicated upon the provisions of a statute, must charge the offense in the language of the statute, and the allegations in the indictment or information must be sufficient to fully inform the defendant of the nature and character of the offense he is called upon to answer upon his final trial.

It is sufficient to say upon this proposition that, applying this fundamental principle of pleading in criminal causes, in our opinion this information sufficiently charges the offense of which the defendant was found guilty.

The statute upon which this information is based provides that the killing of a human being by the act, procurement or culpable negligence of another, which would be manslaughter at the common law, and which is not excusable or justifiable, or is not declared in this chapter to be manslaughter in some other degree, shall be deemed manslaughter in the fourth degree.

The facts upon which this information is predicated were the negligent use and operation of an automobile, the propelling.of which is universally recognized as being attended with great danger to the traveling public who make use of the streets. This information charges that defendant carelessly, recklessly and with culpable negligence operated and propelled this automobile. It charges that this defendant was then and there in charge and control of and operating and rfxanaging a certain automobile, moving and being propelled upon Locust street, a public highway of the said city of St. Louis, and that the said Jesse Watson then and there, at said city of St. Louis, on said thirty-first day of October, one thousand nine hundred and seven, feloniously, carelessly, recklessly and with culpable negligence, did drive, propel and force said automobile with great force and violence at, against and upon said Christine Musick. Then follows' the charge of the infliction of the wounds by reason of such carelessness, recklessness and culpable negligence, and it is again charged that the defendant carelessly, recklessly and with culpable negligence, did with great force and violence throw and cast said Christine Musick to the ground and pavement; and drive, propel and force two of the wheels of said automobile against, upon and over the head and body of said Christine Musick, thereby inflicting’ certain designated wounds and bruises, from which the said Christine Musick died.

This, in our opinion, is a sufficient charge1 and fully informed the defendant of the nature and character of the offense he was cabed upon to answer. It was not, in our judgment, essential that the information should undertake to set out in detail in what such carlessness, recklessness and culpable negligence consisted, but the charge that he operated and propelled this automobile along a public street carelessly, recklessly and with culpable negligence was in effect notifying the defendant that he was not using, operating or propelling his automobile in accordance with the law or the ordinances of the city regulating the use and operation of such machines.

Manifestly the defendant knew that he would have to meet the charge of carelessness, recklessness and culpable negligence in the operation of his automobile, and in meeting such charge doubtless his only defense would be that he operated and propelled such automobile in accordance with the laws and ordinances of the city, duly passed, regulating the running of such vehicles. The defendant could not have been misled by this charge. He could not have been taken by surprise. Under the allegations in this information he must have known that the State would undertake to develop every fact which tended to- establish any sort of negligence, carelessness or recklessness in the operation of that machine.

II.

It is insisted that the trial court committed error in permitting witnesses for the State, who knew nothing about the operation of automobiles, to give their opinions as to the rate of speed at which the automobile being operated by the defendant was running just before the deceased was struck.

It is sufficient to say upon this proposition that in our opinion the rate of speed at which an automobile is running is not a matter exclusively for the testimony of experts. If that was true, then, as has-been intimated by this court, it would be a matter of impossibility for those injured by the running of vehicles, either automobiles, street cars or regular railroad cars, to always have experts at hand to show what rate of speed was being made. A holding of that character would be wholly impracticable, and do a great injustice to- many persons who had been negligently injured by vehicles of the character indicated running at an excessive rate of speed. At last the only reasonable settlement of that question is to hold that witnesses who at least know what an automobile is and have seen them operated, might give their opinions as to the rate of speed. As to the weight to which such opinions are entitled, that is a matter entirely for the jury.

A number of witnesses were examined as to- the. rate of speed that this automobile was being run, some near by and others expressing opinions who were at some distance. It was for the jury at last to weigh the testimony of such witnesses, giving to their testimony such, credit as their opportunities and means of knowledge entitled it to.

That this' automobile was being run at an excessive rate of speed, in fact was being propelled at such a rate of speed as made it carelessness and reckless, the testimony, in our opinion, overwhelmingly shows. The testimony of the witnesses for the State clearly established an improper and unlawful rate of speed of this vehicle, and the truth of this testimony is emphasized by the testimony of the defendant. The defendant, in his testimony, says that after crossing Channing avenue he did not know that his car had struck anybody. The uncontradicted testimony in this case is that the screams of the little girls at the time of this accident were heard some blocks away, and that the automobile struck and ran over a substantial part of the body of the little girl that was killed. In view of this state of facts, if the defendant did not know that he had struck anybody, such want of knowledge can only be attributed to the running of his automobile at such a careless and reekless rate of speed that the screams of the children and the striking of the body of one of them failed to make any impression upon him. Manifestly had he been operating this machine at a speed of only ten miles an hour he would not have failed to have heard the noise and screams made by the little girls, nor would the striking. of the body of this little girl which inflicted the fatal injuries upon her, have failed to impress him that someone had been struck by his machine. If this defendant did not know that someone had been struck by his automobile then the conclusion as above indicated is the only rational one that can be reached.

III.

Learned counsel for appellant complains of certain remarks made by the assistant circuit attorney in his address to the jury. It will suffice to say that we have read in detail the remarks to- which objection is made, and have reached the conclusion that they are insufficient to authorize the reversal of this judgment.

IV.

This brings us to the consideration of the testimony developed upon the trial and the instructions of the court applicable to such testimony. We have read in detail the .testimony of all the witnesses in this case as well as all of the instructions given by the court. The testimony fully supports the verdict; in fact, we are unable to comprehend how any other conclusion could have been reached by the jury. If the testimony of the State was believed by the jury, this case presents one of a careless and reckless destruction of human life. The court fully, fairly and correctly, in our opinion, declared the law applicable to every phase of this case to which the testimony was applicable.

Individuals as well as corporations in the use and operation of dangerous machines, should have a due regard to the preservation of the rights of the public in the use of the public streets, as well as the protection of persons using such streets from injury, and if they fail in this, and should in the operation of a vehicle which is always attended with more or less danger, negligently, carelessly and recklessly destroy human life, it is but in keeping with the proper and impartial administration of justice that the penalties should be suffered for the commission of such acts.

We have carefully analyzed the record before us in this cause and indicated our views upon the legal propositions disclosed by such record. We fail to find any reversible error in the record before us, so it results in the -conclusion that the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


author: GANTT, P. J.

text:
    THE STATE v. CLARENCE MOSS, Appellant.
    Division Two,
    February 2, 1909.
    1. INDICTMENT: Burglary in Second Degree. An indictment drawn under section 1886, Revised Statutes 1899, stating every material fact required by that section as necessary to consti- . tute burglary in the second degree, need not allege the manner of the breaking, but is sufficient without attempting to define the kind or manner of breaking.
    2. EVIDENCE: What Another Said. Testimony of one police officer as to what another said, if wholly immaterial, is no ground for a reversal.
    3. INSTRUCTION: None for Petit Larceny. Larceny from a burglarized house is grand larceny, and where defendant was convicted of both burglary in the second degree and grand larceny he cannot complain that the court did not instruct on petit larceny.
    Appeal from St. Louis City Circuit Court. — Hon. Geo. II. Williams, Judge. .
    Affirmed.

      Jas. M. Hollins for appellant.
    (1) The indictment is fatally defective: 1st, because it failed to allege the manner of the breaking. Conner v. State, 14 Mo. 561; State v. Henley, 30 Mo. 509; State v. Yandle, 166 Mo. 589. 2d, because it fails to allege that defendant intended to permanently deprive the owner of the use of his property without his consent. By the instructions the jury was required to find that the goods were taken without the consent of the owner, and that the defendant intended to permanently deprive the owner of the use thereof. State v. Campbell, 108 Mo. 613; State v. Yates, 159 Mo. 530; State v. Moore, 101 Mo. 326; State v. Littrell, 170 Mo. 13. “An indictment in the language of the statute is sufficient only where all the facts which constitute the offense are set forth in the statute.” State v. Krueger, 131 Mo. 262; State v. Morrison, 61 Mo. App. 507; State v. Smith, 66 Mo. App. 103; State v. Sayman, 61 Mo. App. 211; State v. "Wilkerson, 170 Mo. 181. (2) The court erred in failing to pass upon the objection of defendant, made at the time, and permitting witness officer Edward Shenck to state that his fellow-officer told him that Moss had “dropped something.” (3) The court failed to instruct the jury on the question of petit larceny. State v. Brown, 73 Mo. 631. The amount of property alleged to have been stolen, as set out in the information itself, was $20.

      Herbert 8. Hadley, Attorney-General, and F. G. Ferris, Assistant Attorney-General, for the State.
    (1) The information brings defendant within all the material words of the statute, and is sufficient. R. S. 1899, secs. 1886, 1891; State v. Watson, 111 Mo. 338. (2) The instructions given fully and fairly covered all the questions of law arising in the case which were necessary for the information of the jury in giving their verdict. (3) Defendant did-not make objections or save exceptions to the action of the trial court in giving instructions, or bring them before the court on motion for new trial, and they are not subject to review. State v. Long, 209' Mo. 381. (1) Defendant’s complaint, for the first time made in his motion for a new trial, that “the court did not fully declare the law in its .instructions,” does not entitle him to a review of the instructions given, and, as defendant did not ask the court to give any instructions, or call the court’s attention to any specific matter upon which he desired instructions, he has no just cause to complain. State v. Espenschied, 212 Mo. 215; State v. McCarver, 191 Mo. 717; State v. King, 191 Mo. 181.
   GANTT, P. J.

This is an appeal from a judgment of the circuit court of the city of St. Louis, sentencing the defendant to the penitentiary for burglary in the second degree for three years and for grand larceny for a term of two years. After ineffectual motions for a new trial and in arrest of judgment, the defendant has appealed to this court.

As the information is challenged, we reproduce the substance thereof, to-wit: “That Gilbert Bailey and Clarence Moss, on the twenty-first day of December, 1907, at the city of St. Louis, into a certain store, shop and building of Louis Haas there situate and being, feloniously and burglariously, forcibly did break and enter, with intent then and there, and thereby feloniously and burglariously to steal, take and carry away certain goods, wares, merchandise, other valuable things, and personal property in the said store, shop and building, then and there kept and deposited, and in said store, shop and building two ‘ cravenette ’ overcoats, two pairs of trousers, four pairs men’s kid gloves, and one silk muffler, all of the value of twenty dollars, of the goods, wares, merchandise, other valuable things and personal property of the said Louis Haas in the said store, shop1 and building then and there being found, then and there feloniously and burglariously did steal, take and carry away, with the intent then and there to deprive the owner of the use thereof and to convert the same to his own use; against the peace and dignity of the State. ’ ’

The defendants were duly ¿rraigned on the 22d of January, 1908, and each pleaded not guilty. The case was then continued to the February term, and on the 4th of February, 1908, a severance was granted, and the defendant Gilbert Bailey withdrew his plea. of not guilty and pleaded guilty of burglary in the second degree and sentence thereon was deferred. On the 5th of February, the defendant Moss was put upon his trial and found guilty as above stated.

The evidence on the part of the State tended to prove that Louis Haas on the 20th and 21st days of December, 1907, was engaged in business at number 1310 Olive street, where he had a small stock of gentlemen’s furnishing goods and clothing. Number 1310 Olive street was an ordinary store room, having a front entrance and rear entrance by means of doors. In the front there were show windows. About nine o’clock on the evening of the 20th of December, 1907, Haas closed his store, locking and securely fastening the doors and windows. In the show windows at that time, among other goods, were two cravenette. overcoats, one black and the other gray, two pairs of trousers, four pairs of gloves and a silk muffler, all the property of said Haas. About fifteen minutes past one o’clock that night, as officers Shenck and O’Brien, who were on duty as plain-clothes policemen, were passing north on the east side of Fourteenth street, between Pine and Olive, they saw the defendant Clarence Moss and Gilbert Bailey, both negroes, approaching them on the street. Shenck had known the defendant Moss about ten years and O’Brien had known him for a year or more. As Moss and Bailey approached the officers, the latter noticed that Bailey was carrying a bundle under his arm, and Moss, the defendant, had something under his coat. When defendant and Bailey were in a few feet of the officers they broke and ran, refusing to halt at the command of the officers. The officers pursued them down the street, firing pistols first into the air and then at the fugitives, and, as they did so, a bundle was- seen to fall from defendant Moss, which was found to be a pair of trousers. Bailey was wounded, but he eluded the officers for a time, but was finally arrested that night, by still another officer. Moss, the defendant, was arrested the next morning in the yard in the rear of 1423 Chestnut street where Moss lived, and near where Bailey was arrested the officers found an overcoat and a new pair of trousers. Next morning when Haas opened his store he discovered that one of his show windows was broken and the said trousers, overcoats, gloves and muffler were missing therefrom. He identified the pair of trousers, which the officer had seen the defendant Moss drop while fleeing from them on the street, and also the overcoat and pair of trousers which were found where Bailey was arrested, as a part of his own property and as the same as had heen in his show window of his said store room when he closed it on the night of December 20th. He testified that the property missing from his show window was of the reasonable market value between twenty-five and thirty dollars.

Officer Matthews, who arrested the defendant, testified that the defendant stated that he had been all the night before upstairs near the place of his arrest, with Ida Smith. When asked if he had been with Gilbert Bailey the night before, he first said no^ and then said yes, that he had been with Gilbert Bailey in a saloon at 1415 Chestnut until nine o’clock in the evening, when he then went to Ida Smith’s house 1334 upstairs, that he then came down into the saloon with Bailey where he stayed until the saloon closed at one o’clock; that he then left the saloon and went east on Chestnut to 14th street where he left Bailey, went across to Chestnut where he stayed the remainder of the night with Ida Smith with whom he had been living for several years.

The defendant testified in his own behalf that on the night of December 20th he went to bed at the rooms of Ida Smith, about nine o’clock; that about eleven o’clock he got up and went to a lunch stand where he remained about ten or fifteen minutes and then went back to bed, where he remained the balance of the night. On cross-examination he stated that he had known officer Shenck about eight or nine years.

Ida Smith corroborated the defendant as to his being at her house with her on the night in question.

Gilbert Bailey testified as witness for defendant that the defendant was not with him on the night of the burglary; that he had not seen the defendant after four o’clock of the day before, and that he did not know the name of the man that was with him at the time he was chased and shot by the officers on the night in question. On cross-examination he stated that he did not help burglarize Mr. Haas’s store.

The court instructed the jury as to what constituted burglary in the second degree and as to grand larceny; and instructed the jury that they could fiad the defendant guilty of both offenses, or acquit him of one and find him guilty of tbe other, or acquit him of both. The court also instructed tbe jury on presumption arising from tbe recent possession of stolen property, also on alibi, presumption of innocence, and reasonable doubt, and tbe credibility of witnesses. No exceptions whatever were taken or saved to the instructions of tbe court and of course they are not for review on this appeal.

I. Tbe defendant assails tbe information as insufficient for the reason as be alleges that it does not allege tbe manner of tbe breaking. Tbe indictment in this case was evidently framed to state tbe offense under section 1886, Revised Statutes 1899', and it states every material fact required by that section to constitute burglary in tbe second degree. Unlike section 1880, tbe statute does not attempt or define what kind of breaking shall be necessary to constitute tbe offense. It is purely a statutory offense and we think the indictment is entirely sufficient. A similar indictment in all respects was held sufficient by this court in State v. Watson, 141 Mo. 338, and we see no reason for departing from tbe conclusion we reached in that case.

II. As to tbe objection to tbe evidence of tbe officer Sbenck as to what O’Brien said, it is clear that it was wholly immaterial, and could not have bad any effect upon tbe verdict of tbe jury. Certainly this cause should not be reversed on that ground, even if the record is susceptible of the construction that the court refused to exclude it.

As to the proposition advanced that the court erred in failing to instruct on petit larceny, inasmuch as the defendant was convicted of both burglary and larceny, and larceny from a burglarized house was grand larceny under our statute, the defendant has no ground of complaint on that score. [State v. Peebles and York, 178 Mo. 475.]

There was ample evidence to sustain the verdict of the jury and we must therefore affirm the judgment, and it is accordingly so ordered.

All of this division concur.