author: WILLIAMS, C.

text:
    THE STATE v. O. W. CARTER, Appellant.
    Division Two,
    June 23, 1914.
    1. WITNESS: Impeachment: Contradictory Statements: Equivocation. A -witness cannot avoid contradicting by equivocating, nor is the opposite party to be deprived of the right to show that the W'itness has made contradictory statements either by his feigned or real forgetfulness. Nothing but an admission that he made the very statement alleged, will deprive the opposite party of the right to prove it.
    2. CARRYING CONCEALED WEAPONS: Intent: Sec. 4496, R. S. .1.9,09. Even though one should carry a revolver concealed upon his person, he would not be guilty of an offense under ,Sec. 4496, R. S. 1909, unless he intended to do the act which the statute prohibits, to-wit, carry the weapon concealed.
    3. -; -:---: Question for Jury: Instructions. Where in a prosecution under Sec. 4496, R. S. 1909, for carrying concealed weapons, a contested issue of fact is involved both as to the concealment of the weapon, and, if it was concealed, as to whether or not the defendant intended it to be concealed, the question of defendant’s intent in that regard is for the jury under a proper instruction.
    4. -: Sec. 4496, R. S. 1909: Defenses: Threatened Bodily Harm. In a prosecution under Sec. 4496, R. S. 1909, for carrying concealed weapons, evidence is not admissible that the defendant had been threatened with great bodily harm or had good reason to carry the weapon in the necessary defense of his person. Those defenses are not available under the statute in question.
    Appeal from Moniteau Circuit Court. — How. J. G. Slate, Judge.
    Reversed and remanded.

      S. G. 'Gill and A. T. Dimm for appellant.
    (1) The court erred in refusing to permit appellant to impeach the witness, Rymel, by proof of contradictory statements made by the witness on the vital question in the case. Peck v. Ritchey, 66 Mo. 119 ; Sullivan v. Railroad, 133 Mo. 5; Mahaney v. Railroad, 108 Mo. 200'; Spohn v. Railroad, 122 Mo. 17; State v. Baker, 136 Mo. 83; Giarrett v. Transit Co., 219 Mo. 93; 30 Am. & Eng. Ency. Law (2 Ed.), 1111, 1112, and cases cited; 40 Cyc. 2737. The proper foundation was laid for the impeachment, and the equivocal answer of the witness sought to be. impeached did not deprive appellant of the right to prove , contradictory statements made by the witness. (2) The court erred in refusing instruction D, requested by appellant, which covered the question of appellant’s intent to carry the weapon concealed. State v. Murray, 39 Mo. App. 129; State v. Roberts, 39 Mo. App. 48; State v. Larkin, 24 Mo. App. 410; State v. Partlow, 90 Mo. 626; State v. Banks, 73 Mo. 592; State v. Palmer, 88 Mo. 573; Nichols v. Winfrey, 79 Mo. 546; State v. Tate, 12 Mo. App. 327; State v. Mhrphy, 14 Mo. App. 73. (3) Instruction 4, given for the State, does not prop-, erly declare the law, and is unfair and prejudicial to the appellant. The giving of this instruction and the refusal of instruction D, requested by appellant, was, in substance and practical effect, a direction to the jury to find appellant guilty, though the weapon might have been concealed for an infinitesimal period of time, and without regard to the intent of appellant in having the weapon upon his person, and regardless of his intention not to carry it concealed. 5 Am. & Eng. Ency. Law (2 Ed.), p. 734; Page v. State, 3 Heisk. (Tenn.) 198; Owen v. State, 31 Ala. 387; Lann v. State, 25 Tex. App. 495; Waddell v. State, 37 Tex. 354; State v. Larkin, 24 Mo. App. 410. (4) The court erred in refusing to permit appellant to prove that immediately before he procured the pistol his life had been threatened and he had been assaulted, and that he believed and had good reason to believe that he was in great personal danger, and that he was carrying the weapon in his own defense; and the court further erred in refusing instruction F, requested by appellant, which told the jury that if they found that appellant had been threatened with great bodily harm, or had good reason to believe that it was necessary for him to carry the weapon in defense of his person, they would find him not guilty.

      John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
    (1) Under point 1 of the appellant’s brief a number of cases are cited to the effect that the party proposing to impeach a witness cannot be.deprived of this right by an equivocal answer of the witness or his failure to remember what he testified to before. We are not disposed to contend that this is not the law of this State. The particular questions and answers sought to be impeached by the appellant are .as follows: “Q. Didn’t you testify at the preliminary hearing in this case that when you were on the right side of Mr. Carter you could see that pistol in his pocket? A. I never testified I was on the right side, I don’t think. Q. You don’t think you did? A. If I did I don’t remember.” The court will notice that this question does not call for any particular time or place when the defendant was on the right side of Mr. Carter. It is not laid at any time from the moment defendant left his store until he was stopped by Rymel and -Bardwell. While it is true that the above question and answer, in connection with the questions and answers immediately preceding, would tend to fix the time and place rather indefinitely before the appellant was stopped by Rymel and Bardwell, yet the crime of carrying concealed weapons can be committed by carrying a concealed weapon for a small space of time. Therefore, whether Rymel .had seen .the revolver in the appellant’s pocket or not would be immaterial. Kelley’s Crina.- Law & Procedure (3 Ed.), sec. 385; State v. Parker, 96 Mo. 993; State v. Grant, 79' Mo. 132. Again, the offer of proof by the appellant is indefinite as to time, and is in words and figures as follows: • “Mr. Dumm: We offer to show by this witness that he was present at the preliminary hearing of the defendant, O. W. Carter, at Tipton, Mo., on the 23rd day of . July, 1912; that .at the preliminary hearing Willie Rymel was sworn as a witness, and he testified that he was on the right side of the defendant, and he saw the pistol in his pocket.” The same offer of proof is (again) renewed on pages 88 and 89 of the transcript .and both of these instances are indefinite as to time .and place. We .believe that, while there must be an unequivocal admission in order to refuse an impeachment of a witness, in the case at bar the offer of proof, being indefinite as to time and place, did not in any way tend to impeach the testimony of the witness, Rymel. If the court should be of the opinion that the offer as made would impeach the witness, Rymel, it must be remembered that the extent of impeaching testimony rests largely within the discretion of the court. 40 Cyc. 2741 • Car "Works Co. v. Copper, 75 Ark. 325. (2) We do not believe that instruction D declares the law under section 4496. The cases cited by the appellant are all cases arising under Secs. 1862 and 1863, R. S. 1899. The exception under Sec. 4496, R. S. 1909, is materially different. In the exceptions under section 4496 the following words are omitted which were included under section 1863, Revised Statutes 1899: “And it shall be a good defense to the charge of carrying such weapon if the court shall show he has been threatened with great bodily harm or had good reason to carry the same in the necessary defense of his person.” In the appellant’s brief the case of State v. Hovis, 135 Mo. App. 544, is omitted. This case mentions some of the cases cited by the appellant and states that when the intent to carry a deadly weapon concealed about the person exists and the act is not within one of the exceptions of Sec. 1863, R. S. 1899, the defendant is guilty and it is immaterial that his ulterior purpose or motive in carrying the weapon is innocent and harmless. (3) Under Sec. 4496, R. S. 1909, the facts stated in the appellant’s instruction F are not a defense, there being no exception, under said section, which includes the same. Appellant’s instruction F would have been a good instruction under Sec. 1863, R. S. 1899, but the Legislature evidently had this very matter of defense in mind when it enacted Sec. 4496, R. S. 1909, and omitted to state that it would be a good defense to the charge of carrying such weapon “if the defendant shall show that, he has been threatened with great bodily harm or had good reason to carry the same in the necessary defense of his person, home or property.” The appellant has failed to distinguish between Sec. 4496, R. S. 1900', and Secs. 1862 and 1863, R. S. 1899.
   WILLIAMS, C.

On January 12, 1914, in the circuit court of Moniteau county, defendant was convicted of the crime of carrying concealed about his person a deadly weapon, to-wit, a revolving pistol. His punishment was assessed at a fine of one hundred dollars. Defendant appealed.

The State’s evidence tends to establish the following facts: The crime occurred on one of the principal streets of the town of Fortuna, Moniteau county, Missouri, on July 21, 1913. On that date, defendant, the owner and operator of a store at that place, came out of his store, carrying a revolver in his right hand. He did not have on a coat or vest. On reaching the street, in front of his store, he put the revolver into the right side pocket of his overalls and placed his hand partly into said pocket so that the pocket and hand concealed the revolver. He then started down the middle of the public street (the evidence does not show upon what mission he was bound). Just after he left his place of business, his son Virgil Carter and another boy named Willie Rymel caught up with bim and endeavored to force him back to his store, but were unable to do so and the three proceeded westward down the street, the defendant pushing the two boys away with his left hand and keeping his right hand in his right side pocket.

After proceeding down the street a distance of about a block and a half, a Mr. Bardwell came to the assistance of the two boys and he, together with the two boys, forcibly lifted defendant off the ground and started to carry him back to, his store. At this juneture, one of the party took the revolver from defendant’s pocket and delivered it to Mr. Bar dwell.

Five or six witnesses testified, for the State, that at the time of the occurrence, they were standing at different places along the street, in front of different stores, and that they saw defendant and the two boys going down the street but did not see any revolver on the person of the defendant. Some of these witnesses were standing in a position to the left of defendant as he went down the street but others of them were on the right side of the street.

The Rymel boy testified for the State that he had a hold on the defendant the greater portion of the time as they went down the street. This witness further testified that from the time that he caught up ’with defendant until the time defendant was stopped he could not see the pistol on defendant but that after defendant was stopped and when they started to carry him back to his store he saw the handle and part of the cylinder of the revolver sticking out of defendant’s right hand pocket. On the cross-examination of this witness, and for the purpose of laying a foundation for his impeachment, he was asked if he did not testify at the preliminary hearing that when he was' on the right side of defendant, as they were going down the street, he could see the pistol in defendant’s pocket. In answer to this question he said that if he did so testify he didn’t remember it. Later defendant offered to prove by witnesses R. L. Hagen, Fred Krone, a lawyer, and A. M. Park, deputy sheriff, that they were present at the preliminary hearing and heard witness Rymel'there testify that when he was on the right side of the defendant he saw the pistol in defendant’s right hand pocket. ■ The court refused to admit this evidence and defendant excepted.

The evidence on the part of defendant was substantially as follows: Lee Huff and his son Floyd testified that all the time defendant was coming down the street, he was using both hands trying to push the boys away from him and as he passed the place where they were standing they could see the pistol handle sticking out of defendant’s right hand pocket. Virgil Carter, son of defendant, testified that he was on the right side of his father as they went down the street and as they started down the street he saw a portion of the pistol sticking out of his father’s right hand pocket; that after they started down the street he did not look at his father’s pocket any more until they reached the place where defendant was finally stopped; that he was somewhat excited during this time and his attention was occupied trying to get his father back to the store; that when he did again look at the pocket in which the pistol was contained, after defendant was finally stopped, the pistol was in the same position that it was in when defendant started down the street and that a portion of the pistol stuck out of the pocket and was visible. Two or three other witnesses for the defendant testified that defendant did not have his right hand in his pocket but was using his right hand pushing the boys away from him. Two of these witnesses were standing on the right hand edge of the street but did not notice the revolver in defendant’s pocket. Defendant testified in his own behalf that he had the pistol in his right hand overalls pocket as he went down the street but that the pistol was not concealed at any time and. that a portion of the pistol stuck out of his overalls pocket about three or three and one-half inches and that the pocket was not sufficiently large to conceal the pistol; that he did not conceal the upper part of the pistol by putting his right hand in his pocket or over the pistol but that both of the boys were clinging to him as they were going down the street and that he was using both hands pushing the boys in front of him. He further testified that he did not intend to carry the pistol concealed at any time. Defendant further offered to prove that on the same day and a short time prior to placing the pistol in his pocket, he had been assaulted and his life had been threatened and he thought he was in great personal danger and he was carrying the weapon in defense of his life. This testimony was excluded by the court and defendant saved an exception.

The defendant offered in evidence the overalls which he wore on the day in question and also the pistol which he had in his pocket and upon his request he was permitted to put on the overalls and to put the pistol in the right hand pocket thereof and to walk before the jury so that the jury could see the way and manner in which the defendant claimed he carried the gun on the day in question. He testified that the overalls had not been changed in any manner and that the pockets were the same as upon the day in question.

I. It is urged that the court erred in excluding the testimony offered by defendant to impeach the witness Rymel. This witness, by reason of being in close proximity to defendant during the time the weapon is claimed to have been concealed, was an important witness for the State. As defendant went down the street, this witness and defendant’s son attempted to stop him and cause him to return to the store. Rymel testified that he did not see the revolver from the time defendant started down the street until he was finally stopped. From his testimony, it clearly appears that a portion of that time, at least, he was in a position to have seen the revolver if it was not concealed, thereby clearly leaving the inference that the revolver was concealed at that time. For the purpose of laying a foundation for the impeachment of the witness, he was asked whether or not, at the preliminary hearing in the case, he testified that he saw the pistol in defendant’s pocket after defendant left the store and before he was stopped. He answered that he did not think he did so testify. Upon being further asked if he did not testify, at the preliminary hearing, that when he was on the right side of defendant he could see the pistol, he replied that, if he did, he didn’t remember it. Later the defendant offered to prove by three witnesses, who were present and heard the witness testify at the preliminary hearing, that he did so testify. The State objected to the introduction of this testimony on the ground that since the witness had not denied that he had so testified, but merely said he did not remember, no proper foundation had been laid for the impeachment of the witness. The court sustained the objection and refused defendant’s offer of proof and defendant saved an exception. The court erred in excluding this evidence. In the case of Peck v. Ritchey, 66 Mo. 114, l. c. 119-120, this court, speaking through Henry, J., correctly announced the rule here applicable, as follows: “A witness cannot avoid contradicting by equivocating, nor is the opposite party to be deprived of the right to show that the witness has made contradictory statements either by his feigned or real forgetfulness. Nothing but an admission that he made the very statement alleged, will deprive the opposite party of the right to prove it.” To the same effect are Sullivan v. The Jefferson Avenue Ry. Co., 133 Mo. 1, and 40 Cyc. 2737-2738.

II. It is further contended that the court erred in refusing defendant’s instruction D. Said instruction was as follows:

“To conceal a weapon means something more than carrying it or the mere fact of having it where it may not be seen; it implies an assent of the mind and a purpose to carry it so that it may not be seen.”

This was a prosecution under section 4496, Revised Statutes 1909, which constitutes it a felony for any person (other than persons therein excepted) to “carry concealed upon or about his person a dangerous or deadly weapon,” etc. Defendant does not come within any of the exceptions enumerated in the statute. Such being true, the motive or purpose with which defendant carried the revolver concealed would be no defense and should not be considered in arriving at the guilt or innocence of the defendant. But while that is true, yet defendant, even though he carried the revolver concealed, would not be guilty of an offense under the Statute unless he intended to do the act which the statute prohibits, to-wit, carry the weapon concealed. [Bishop on Statutory Crimes, sec. 789; State v. Hovis, 135 Mo. App. 544; 5 Am. & Eng. Ency. Law (2 Ed.), p. 734.]

The sole issue of fact in this case was with reference to the concealment of the instrument. The State’s evidence tended to show that as defendant walked down the street the revolver was concealed partly in the pocket and partly by his right hand. Defendant’s evidence tended to show that it was not concealed but that a portion of it protruded above the pocket and that defendant did not intend to conceal the same and that he was using his right hand to free himself from the two boys as the three were progressing down the street. The circumstances detailed in evidence gave some corroboration to defendant’s claim. Where the State’s evidence shows that the weapon is concealed, it would no doubt be a sufficient prima-facie showing that he intended to conceal the same, because from such proof it might well be inferred or presumed that the person intended to do that which in fact he did do, and when this is true and this issue is not controverted, it becomes of little importance in the case. But where, as here, a contested issue of fact is involved, both as to the concealment and, if concealed, as to whether or not the defendant intended it to be concealed, the question of defendant’s intent in that regard becomes an important issue of fact in the case, to be determined by the jury. The instruction requested by defendant contains a correct declaration of law but we think this issue could be more clearly put to the jury if they were, in •effect, instructed that if they find and believe from the evidence that defendant did not intend to carry the weapon concealed then they should acquit the defendant. Or the point might be properly presented to the jury by inserting the words “intentionally” or other words of like import, at the proper place in the main instruction given on behalf of the State. The court in the present case should have instructed the .jury on the above point.

III. The court did not err in refusing to allow the defendant to prove that he had been threatened with great bodily harm or had good reason to carry the weapon in the necessary defense of his person. The above were proper defenses under section 1863, Revised Statutes 1899. But that section was repealed in 1909 and a new section (Sec. 4496, R. S. 1909’) was enacted in lieu thereof. [Laws 1909’, p. 452.]

Those defenses are not available to the defendant charged with carrying concealed weapons under the new act.

The judgment is reversed and the cause is remanded.

Boy, G., concurs.

PER CURIAM. — The foregoing opinion of "Williams, C., is adopted as the opinion of the court.

Walker, P. J., and Brown, J., concur; Paris, J., concurs in paragraph I and in the result.


source: Caselaw Access Project

author: WALKER, P. J.

license: Public Domain

text:
    THE STATE v. ELVY JOHNS and WALTER GROSSE, Appellants.
    Division Two,
    June 23, 1914.
    1. INFORMATION: Setting Up Gambling Table. An information charging the statutory offense of setting up and keeping a gambling table and a gaming device, which sets forth the offense in the language of the statute or its legal equivalents, is sufficient.
    2. -: Joint Offenders. Where defendants were jointly concerned in the commission of the offense, it is proper to jointly charge them therewith in the one information.
    3. VERDICT: Joint Offenders. Separate verdicts as to each defendant should be rendered when two or more persons are joined in the one information as having jointly committed the offense, although there is no severance and all are tried together.
    4. JUDGMENT: Separate Verdicts: Separate Sentences. Where there are separate verdicts in the trial of defendants jointly charged with the commission of a crime, a separate judgment as to each may be rendered, or there may be one judgment against all if it is made to appear therein that the sentences .were separately assessed.
    Appeal from Dent Circuit Court. — Ron. L. B. Woodside, Judge.
    Aeeirmed.

      William P. Elmer for appellants.

      John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
    (1) The information charges a statutory crime and sufficiently follows the statute. The same form as used in the case at bar has the approval of this court. Sec. 4750, R. S. 1909; State v. Etchman, 184 Mo. 193; State v. Rosenblatt, 185 Mo. 114; State v. Cannon, 232 Mo. 211. (2) Separate verdicts were returned, finding the appellants “guilty as charged in the information.” Such a verdict is responsive to the information and has been often approved by this court. (3) Although the motion for a new trial alleges that the court committed error in refusing to give instructions 1, 2, 3, 4, 5 and 6, as requested by the appellants, the bill of exceptions does not show that instructions by such numbers were ever requested of the court; nor does the bill of exceptions show that the appellants objected in any way to the instructions as given. The instructions given by the court fully cover the law of the case as required by the recent decisions of this court. State v. Oonway, 241 Mo. 291; State v. Dockery, 243 Mo. 599; State v. Sykes, 248 Mo. 713.
   WALKER, P. J.

Appellants were charged in an information filed by the prosecuting attorney of Dent county under the provisions of section 4750, Revised Statutes 1909, with setting up and keeping a gambling table and gaming device called a “crap game,” at the town of Salem, in said county, during the month of October, 1913. Upon a trial they were convicted and their punishment assessed at two years’ imprisonment in the penitentiary, respectively. In conformity with the usual procedure they appeal to this court.

At the time charged in the information appellants were conducting a restaurant in the town of Salem, in Dent county. In the basement of the building occupied by them, there was a table covered with a cloth or blanket, and on this different parties would throw dice for money, in a game called “craps,” a particular description of which is not necessary in this connection. The evidence is sufficiently clear that not only this basement but the table therein belonged to or was under the control of the appellants, and that they conducted the games played thereon and took a per cent for sarue, or, in the terminology of crime, “took the rake-off.” [State v. Wolf, 230 Mo. 676.]

No testimony was offered on behalf of the appellants.

I.It was contended by appellants on a motion to quash the information that no preliminary examination had been accorded them as required by section 5056, Revised Statutes 1909, as amended by Laws 1913, p. 224. The transcript furnishes a complete refutation to the truth of this contention, showing', as it does, a compliance with the requirements of the statute referred to.

II.The information which charges a statutory offense sets forth the same in the language of section 4750, supra, or its legal equivalents, and conforms to precedents approved in like cases. [State v. Rosenblatt, 185 Mo. l. c. 120; State v. Locket, 188 Mo. 415; State v. Lee, 228 Mo. 480; State v. Cannon, 232 Mo. 205; State v. Lawson, 239 Mo. 591.]

III.The law applicable to cases of this character was given by the trial court in four instructions: The first was formal and defined the offense as set forth in the information, and told the jury in clear and unmistakable terms what facts were necessary to be proved before a verdict of guilty could be found, and stated the different degrees of punishment authorized; the second defined the term “ wilfully; ’ ’ the third explained to the jury that they might convict one of the defendants and acquit the other, or convict both or acquit both as they found from the evidence (State v. Kaiser, 124 Mo. l. c. 664; State v. Vaughan, 200 Mo. l. c. 19), and that separate verdicts should be returned in the case of each of the appellants; the fourth, which was the only instruction asked by the appellants* was in regard to the presumption of innocence, and defining a reasonable doubt.

These instructions properly declared the law applicable to the facts on which the jury were to base their verdict. [State v. Lawson, 239 Mo. 591.]

IV. Appellants were jointly concerned in the commission of the offense, and were, therefore, properly jointly charged. Not having demanded a severance, their joint trial was authorized, and the separate verdicts in their respective cases, returned by the jury, was in compliance with the requirements of the statute which provides that “when several defendants are jointly tried, the punishment of each, in case of conviction, must be assessed separately.” [Sec. 5252, R. S. 1909.] We find upon an examination of the record that separate judgments were rendered against each of the appellants, but if this had not been done, and it had appeared in a single judgment that the sentences were separately assessed, it would no.t have constituted error. [State v. Hollenscheit, 61 Mo. 302.]

The record disclosing no error prejudicial to the appellants, the judgment of the trial court should be affirmed. It is so ordered.

Brown and Fáris, JJ., concur.


author: FARIS, J.

text:
    STATE v. CHARLES B. DeGROAT, Appellant.
    Division Two,
    June 23, 1914.
    1. ABORTION: Sufficiency of Evidence: Contradictory. Although the uncorroborated testimony of the prosecutrix be contradictory in some respects and opposed to human experience in others, and some of it tends to corroborate the very defense urged by defendant, yet if there is substantial evidence upon each affirmative element required by the statute to be proved, the question of its credibility and sufficiency to sustain a conviction is for the jury.
    2. APPELLATE PRACTICE: Criminal Case: Duty of Court to Search Out Error. In a criminal case the Supreme Court is not bound by the attitude of the State, but must itself search the record for error.
    3. ABORTION: Duty of State to Prove Exception. The burden is on the State, in a prosecution for the “felony of abortion,” to prove that the abortion was not necessary to preserve the life of the woman or that of an unborn child. But the other exceptions enumerated in the statute, namely, that the defendant is not a duly licensed physician or that said act has been advised by a duly licensed physician to be necessary to preserve the life of the woman or of an unborn child, are matters of purely affirmative defense, and the burden of proving them is on defendant. [Overruling State v. Meek, 70 Mo. 355, and pointing out that State v. Schuerman, 70 Mo. App. 518, does not announce a contrary holding.]
    4.--: -: Presumption. The rule that the burden rests upon the State to prove that the production of a miscarriage was not necessary to preserve the life of the woman, is not met, where no evidence to the contrary is produced, by the presumption that such abortion was not necessary to save her life. To indulge such a presumption 'would be to leave out of view the presumption of innocence, which accompanies a defendant throughout the trial; and if one presumption is to be set over against another, then there is a condition that cries loudly for proof; and, besides, if there is such a thing as degrees and grades in presumptions, then the presumption of innocence is to be preferred over the other.
    5. -: Circumstantial Evidence.: To Prove Miscarriage Unnecessary: Intent. Actual proof that the production of a miscarriage was not necessary to preserve the life of the woman, is unnecessary and usually impossible; a prima-facie case of that exception is made out by proof that the woman was in good health, or in her usual and ordinary condition of health, immediately prior to the commission upon her of the abortion charged. And that, in a way, is proof, by circumstantial evidence, of the intent with which the miscarriage is produced.
    6.-: -: -: Intent: Instruction. While the circumstantial evidence necessary to prove that the production of a miscarriage was not necessary to preserve the life of the woman is similar to that elsewhere prevailing in the law of circumstantial evidence, that is not true in the sense that the court would have to instruct, and the jury would have to find, that “the facts and circumstances shown in evidence must be not only consistent with defendant’s guilt, but inconsistent with every reasonable theory of his innocence.” Such an instruction becomes necessary, if at all, only when defendant offers some affirmative testimony tending to show some necessity for the abortion.
    7.--: Insufficient Evidence to Prove Miscarriage Unnecessary. Where the prosecutrix testifies that when she went to defendant’s office where the abortion was committed she “was feeling bad,” that she had a napkin on at that time and removed it before she went upon his chair, and there is no other testimony that she was at that time in good health, a judgment of conviction cannot stand, since there is no proof that the production of the miscarriage was not necessary to preserve her life, but what proof there is on the point is to the contrary. Testimony that defendant (a physician) did not tell' her that the abortion was necessary to preserve her life or that of her unborn child, does not help the State’s case.
    Appeal from St. Louis City Circuit Court. — lion. William M. Kinsey, Judge.
    Reversed and remanded.

      George B. Webster and William J. Grodzki for appellant.
    (1) The uncorroborated testimony of the prosecuting witness is so contradictory, so. at variance with the physical facts and the laws of nature, and so in conflict with the other evidence in the case, as to render it insufficient to support a conviction upon a criminal charge. (2) The State wholly failed to prove that the alleged operation was not necessary to save the life of the prosecuting witness or an unborn child, and there was no evidence of her healthy condition from which the jury might draw that inference. In such circumstances there can no conviction. State v. Sonner, 253 Mo. 440; State v. Shoemaker, 138 N. W. .381; State v. Wells, 100 Pac. 681; State v. Longstreth, 121 N. W. 1114; State v. Brown, 85 Atl. 797; State v. Lee, 37 AtL 75; Howard v People, 57 N. E 44L (3) The fourth instruction was erroneous in that it omitted mention of essential elements of circumstantial evidence, which will justify conviction. State v. Salmon, 216 Mo. 529; State v. Gray, 163 Mo. App. 697; State v. Moxley, 102 Mo. 374.

      John T. Barker, Attorney-General, and Ernest A. Green, Assistant Attorney-General, for the State.
    (1) At the close of the State’s case the defendant’s counsel interposed a demurrer to the evidence assigning several distinct grounds therefor. The first of these was that the State had not shown beyond a reasonable doubt that a miscarriage resulted from the treatment of Rose Ellis by this defendant. Under the statute this is not necessary. In fact, under it the woman need not even be pregnant. Sec. 4458, R. S. 1909; State v. Helton, 255 Mo. 170; State ex rel. v. Shields, 230 Mo. 91. Even if it were necessary however to establish the fact of a miscarriage in this particular case the same was abundantly established by the testimony. (2) The law would presume from the continued practice by the defendant of medicine for a period of almost twenty years that he had been duly licensed. In other words, the law presumes right action, and a wrongful act will not be presumed. Maysville v. Truex, 235 Mo. 619; Trust Co. v. Bank, 154 Mo. App. 89; State v. Bebhardt, 219 Mo. 708; State v. Schatt, 128 Mo. App. 625; Machinery Co. v. Ramlose, 210 Mo. 649. (3) The third reason assigned for the defendant’s demurrer is that there was no proof that the abortion was not necessary to save the life of Rose Ellis or her unborn child. The testimony clearly shows that until this operation was performed on the prosecuting witness by the defendant her health was good. State v. Casto, 231 Mo. 408. (4) Defendant insisted that his demurrer should have been sustained because the:;u was no proof that this operation had not been advised by some other physician to have been necessary to save the life of the prosecuting witness. This defense is not open to a physician when charged with performing the abortion himself. State v. Gow, 235 Mo. 324.
   FARIS, J.

Appellant, convicted and fined $100 in the circuit court of the city of St. Louis upon the charge of abortion, appeals.

The facts are substantially thus: One Bose Ellis, a young married woman, 24 years old, residing in St. Louis, temporarily estranged and living apart from her husband, being pregnant and having been informed, as she says, by some girl friends, that the services of defendant could be enlisted for a consideration to rid her of the unborn child, went on the 17th day of June, 1912, on a street car unaccompanied to see defendant for this purpose. She found defendant, who is a physician, residing in St. Louis and for some twenty years engaged therein practicing his profession of medicine, at his office on South Ninth street in said city, and being asked by him what she wanted, informed him that she was some two and a half months advanced in pregnancy and wanted him to perform an operation, or as she expresses it, to “open her womb.” This, in consideration of an agreed fee of five dollars, defendant agreed to do, and at once without further parley proceeded to do, pausing only to convince himself of the sufficiency of her heart action by auscultation, upon the prosecuting witness’s telling him that her heart hurt her, and that it had always been “kind of weak.”

The details of the methods employed by defendant are unimportant so far as the legal phases of this case are concerned. Suffice it to say that by the use of certain instruments which were inserted into the womb of the witness, Bose Ellis, a present small flow of blood was produced, which culminated some few days thereafter in a miscarriage. After the use upon the witness by the defendant of the instruments, she got up from the operating table, replaced her napkin, which she says she “had taken off before he went to work” on her, and rode alone to her aunt’s home upon a street car.

Touching her prior health her testimony is, she “was feeling bad when she went down to the office” of the defendant, but she nowhere explains her condition or the nature of her ill feeling more at length, nor does it otherwise or elsewhere appear in the record, except that defendant says the witness was anaemic. Following the operation and while going on the street car to the home of her aunt with whom the witness was staying, she became ill and began to have severe hemorrhages, which illness and hemorrhages continued for some two months and until her condition became very serious if not dangerous. During this illness and these hemorrhages the miscarriage occurred. The fact of a miscarriage was sufficiently shown by another physician, Dr. Yanderbeek, who attended the prosecuting witness and treated her for hemorrhage and afterward gave testimony on the trial. Though this physician was not able to say what had caused such miscarriage, he was positive a- miscarriage had happened.

The witness Rose Ellis was asked by the State on the trial, among others these questions:

“Q. Did Dr. DeGroat tell you this operation was necessary to preserve your life? A. No, sir.
“Q. Did he tell you it was necessary to perform this operation in order to preserve the life of an unborn child? A. No, sir.
“Q. Had you seen anyone before you saw Dr. DeGroat, about your condition? A. No, sir.”

Upon being confronted with the defendant after his arrest she at first denied any positive knowledge of him but afterwards admitted that she knew him and that lie had treated her. This action she explained to the police officer by saying defendant had winked and shaken his head at her and she was afraid to admit that she recognized him.

Defendant offered proof of his good character, and in contradictibn of the State’s contention that he had operated upon the witness Nose Ellis so as to produce an abortion on her, denied that he did anything to the woman except to examine her and to use such methods, and prescribe for her use such remedies, as would tend to stop her hemorrhages.. He claims in his testimony in his own behalf in the case, that he first saw her on the 13th day of June, 1912 — she says her first visit to his office was on June 17. That she came to his office, told him she was sick and asked him to perform an operation on her, inferably from the context, for the purpose of producing a miscarriage. Defendant examined her on this occasion, visually only, it seems (though the record is cloudy, and other inferences may be drawn), found her to be, as he says, pale and apparently anaemic, and therefore refused to operate on her. He was afraid to “operate” on her — afraid of her, he says. Thereupon and on his refusal, Mrs. Ellis told him she could operate on herself — that she was in the habit of operating; that she had done so before. Defendant further says that the witness came back again to see him on the 16th of June; that he then examined her with., the aid of a speculum and found her suffering from hemorrhage of the womb, with decomposition indicated. He simply washed out the affected parts and prescribed certain remedies which have the- effect of stopping hemorrhage. In other words, the defendant’s position is that if an operation was performed on the witness by which a miscarriage was brought about, or if by any means such miscarriage was produced, he had no part therein. By broad inference his testimony indicates, without so saying in so many words, that she had herself used means to produce an abortion upon berself. Corroborative of this theory of defendant is the admission of the woman to Dr. Upshaw that she “had taken something.”

At the close of the evidence for the prosecution the defendant interposed a demurrer thereto for insufficiency to sustain the charge in the information, which demurrer being overruled, he saved his exceptions.

Among other instructions the court gave of his own motion one upon the question of intent, and the manner of making proof thereof in this sort, of case. Since defendant is very strenuously objecting to this instruction, and since we are therefore, among other matters, called on to notice it, we consider it pertinent to a full understanding of the case. It is numbered four and so designated in the briefs, and is as follows:

“You are further instructed that the intent with which an act is committed may be proved by direct and positive testimony, or such intent may be inferred. from all the facts and circumstances surrounding and attending the act, as shown by the evidence in the case, - and the intent with which the defendant used an instrument or instruments upon the private parts or womb of said Rose Ellis, if you find that he did use it, or them, must be determined by you from the evidence given in this case.”

The above facts will, we think, throw sufficient light upon the points it has become necessary to discuss as to enable the reader to follow the discussion subjoined.

Three grounds upon which a reversal is sought are urged upon us in the brief furnished us by learned counsel for defendant: (a) That the uncorroborated testimony of the prosecuting witness is contradictory and so at variance with the physical facts as to render it insufficient to support the charge; (b) that there was a failure of proof as to the matters required by the statute to be negatived, that is, as to the non-necessity of the alleged abortion in order to save the life of the woman or that of an unborn child, and (c) that instruction four set out by us in the statement is erroneous in omitting essential elements defining circumstantial evidence. These in their order.

I. Save for the specific charge of the insufficiency of the testimony to sustain this conviction arising from the alleged failure of the State to offer sufficient testimony to show the non-necessity of the alleged abortion as a medical means of saving the life of the woman or that of an unborn child, which we reserve for special discussion below herein, we can see no sufficient legal reason to sustain this general charge of error on this ground. We concede that the testimony of the woman in the case, apparently presents some situations opposed to the general run of ordinary human experience. "Likewise, there are to be found in her testimony admissions of statements made to other persons by her which contradicted her testimony upon the trial and corroborate the very defense urged by the defendant. For example, she voluntarily admitted apropos of nothing and without being asked, that she told Dr. Upshaw she “had taken something.” True also it is, that at first when confronted by defendant in the presence of the police officers she denied knowing him. She also says that on her first visit to defendant and before she lay down to have defendant operate on her, she had removed a napkin she was wearing. To quote her words, she says, “I got up” (after the operation) ‘ ‘ and put on my napkin; I had taken it off before he went to work on me.” No explanation of this was asked by either the State or defendant, though inferences might well arise from it, which, in a measure, likewise bolster up the theory of the defendant and corroborate Ms testimony. . But be tMs as may be, on the affirmative elements of the case, and reserving for the present the point of the alleged failure of the State to prove the negative of non-necessity of the operation to save life, there was substantial proof to take the case to the jury. The jury’s duty it was to weigh the testimony of the prosecuting witness and to say whether in their judgment, with all her contradictions she told the truth. There was substantial evidence (though contradicted in some aspects and though opposed to human experience in others and fraught with inferences leading to doubt in yet others) upon each affirmative element required to be proved in the case if the jury believed it, as the sequel indicates they did, to sustain the conviction. [State v. Maggard, 250 Mo. l. c. 341.]

II. We come now to the defendant’s specific allegation of failure of proof. Logically we could well have considered both of these assignments of error together. They possibly belong together, but in paragraph one above we deal only with the quantum of evidence required to make out all ¿necessary proof of the commission of the crime of abortion, except proof, of the negatives which appear in. the parenthetical clause of our statute defining the “felony of abortion.” To further clarify this point we set out below this section of our statute in full, being that on which defendant was convicted and which reads thus (we italicise the vexing exception):

“Any person who, with intent to produce or promote a miscarriage or abortion, advises, gives, sells or administers to a woman (whether actually pregnant or not), or who, with such intent, procures or causes her to take, any drug, medicine, or article or uses upon her, or advises to or for her the use of, any instrument or other method or device to produce a miscarriage or abortion (unless the same is necessary to preserve her life or that of an unborn child, or if such person is not a duly licensed physician, unless the said act has been advised by a duly licensed physician to be necessary for such a purpose), shall, in the event-of the death of said woman, or any quick child, whereof she may be pregnant, being thereby occasioned, upon conviction be adjudged guilty of manslaughter in the second degree, and punished accordingly; and in case no such death ensue, such person shall be guilty of the felony of abortion, and upon conviction be punished by imprisonment in the penitentiary not less than three or more than five years, or by imprisonment in jail not exceeding one year, or by fine not exceeding one thousand dollars or by both such fine and imprisonment; and any practitioner of medicine or surgery, upon conviction of any such offense, as is above defined, shall be subject to have his license or authority to practice his profession as physician or surgeon in the State of Missouri revoked by the State board of health in its discretion.” [Sec. 4458, R. S. 1909.]

¥e could well content us here by saying that the State concedes the necessity of some proof of the fact that the operation was not performed in due course of medical treatment as a necessary means of saving the life of the woman, or that of her unborn child; but the State says this requirement of proof is amply met in the record. In a criminal case we are not bound by the attitude of the State; we must ourselves comb the record for error. [Sec. 5312, R. S. 1909; State v. Maggard, 250 Mo. 335.] The language of section 4458, supra, and the condition of the law as we gather it from the adjudicated cases, would seem to suggest such treatment of the questions involved as will lay bare the existing defects, if any, and suggest a possible remedy therefor.

The questions vexing us and to be determined are: (1) must the State offer proof of the negative contained in the parenthetical exception in onr statute, or, is this exception a matter of pure affirmative defense; (2) if the burden is on the State, how and by what sort of proof may that burden be met, and (3) has it been met by the State in this casé?

The general rule as to the contents of an indictment which charges an offense, to which there are exceptions negativing guilt, is, that all such exceptions must be pleaded in the indictment when they occur as parts of the statutory definition of the offense, in all cases where if such exceptions be omitted, the offense cannot be accurately described. [State v. Meek, 70 Mo. 355; State v. Bockstruck, 136 Mo. l. c. 351, 1 R. C. L. 80; State v. Casto, 231 Mo. 398; State v. Longstreth, 19 N. D. 268; State v. Wells, 35 Utah, 400.] But where such exceptions are not a part of the statutory definition of the crime; where they are contained in distinct and independent clauses of the statute, or in separate sections, it is not usually necessary either to plead them or to prove them. Such exceptions are pure matters of affirmative defense. [State v. O’Brien, 74 Mo. 549; State v. Doerring, 194 Mo. 398.] There is no doubt that both by these rules and by stare decisis, abortion falls pursuant to the statute defining it, into the first category. [State v. Casto, supra; State v. Meek, supra.] As a general rule where the State is required to plead a negative, or to plead an excusing exception, the State must offer some.proof thereof. The only exception to this rule is that where the subject-matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is said to be taken as true, unless disproved by that party. [State v. Hathaway, 115 Mo. l. c. 44; State v. Lipscomb, 52 Mo. 32.] As a general thing this rule is applied only to cases where the exception required to be negatived can be so negatived beyond any question or cavil by the production of a license, e. g., to sell liquor, or of .a certificate to practice medicine, or dentistry, which license or certificate is in the custody or control, as a matter of course, of defendant.

Two fairly logical and consistent objections can be urged against the use of this rule in regard to the proof of the negative of non-necessity in a case like the instant one; (1) the danger of the conviction of an innocent defendant from the lack of certainty of the proof offered by him on the affirmative existence of non-necessity (since it might, in the last analysis, resolve itself into a question of the weight of the oath of defendant, laboring under the statutory ban of discredit, against that of the woman in the case); and (2) the fact that the proof to make out a prima-facie case of non-necessity, under the weight of authority hereafter cited, does not lie wholly and peculiarly within the knowledge of the defendant. The question of where upon this phase lies the burden of proof is one of very great difficulty. The courts are not in accord upon it, in fact they are almost irreconcilable. New York (Bradford v. People, 20 Hun, 309; People v. McGronegal, 136 N. Y. 62; Weed v. People, 56 N. Y. 628), Colorado (Johnson v. People, 33 Colo. 224), Texas (State v. Rupe, 41 Tex. 33), and Kentucky (Peoples v. Com., 87 Ky. 487), on statutes, in some cases at least, so differing from our own as to form a logical reason for the variance in the holding, but for the most part, for that the defense is peculiarly within the knowledge of the defendant, have held that no proof by the State of the negative of non-necessity is required. . But the great weight of authority is, that the burden-rests upon the State to make prima-facie proof of facts and circumstances from which non-necessity may be inferred. [State v. Longstreth, 19 N. D. 268; Hatchard v. State, 79 Wis. 357; Howard v. People, 185 Ill. 552; State v. Bly, 99 Minn. 74; State v. Aiken, 109 Iowa, 643; State v. Clements, 15 Ore. 237; Dixon v. State, 46 Neb. 298; State v. Watson, 30 Kan. 281; Diehl v. State, 157 Ind. 549; People v. Balkwell, 143 Cal. 259; State v. Wells, 35 Utah, 400; State v. Dargatz, 244 Mo. 218; State v. Casto, 231 Mo. 398; State v. Sonner, 253 Mo. 440.] There is one ease in this State from this court (State v. Meek, 70 Mo. l. c. 358), where it was said that the burden is upon the defendant to prove the necessity of an abortion and not upon the State to prove the non-necessity thereof. This holding was put upon the ground that the facts were peculiarly within the knowledge of the defendant. The case of State v. Schuerman, 70 Mo. App. 518, is usually cited as an authority for the same view that the burden is on defendant to prove the necessity of the abortion. As a matter of fact it is an authority for the very contrary view that the burden is on the State to prove the non-necessity of the abortion. Since these cases, which are in conflict with each other, have been ruled, the offense has been made a felony. Besides this (and we are bound to concede that the more serious in punishment an offense is, the more care the courts should take in protecting the citizen, lest the innocent suffer harsh and degrading punishment), it is a seriously debatable question whether the prima-facie proof of non-necessity is always more within the peculiar knowledge of defendant than it is that of the prosecution; this, for the lack of definiteness and certainty of proof when matters rest on oral, instead of written, evidence, and for the reasons already pointed out, and hereafter again to be adverted to. It was said in the case of State v. Aiken, 109 Iowa, 643 (quoting from Moody v. State, 17 Ohio St. 110), that “the circumstances attending the procurement, of an abortion, tending to prove that it was unnecessary for the purpose of preserving the life of the mother, ordinarily can be shown quite as easily on the part of the prosecution as it can he proved by the defendant that it was necessary for that purpose." This might not he true always as a general rule absolutely without excéption, but having regard to the nature of the prima-facie proof permitted, it will be seen to be generally true. So generally true it is that considerations of tbe danger of unwarranted conviction of an innocent citizen of a heinous offense, may well speak for the expediency of the rule.

Again it was said in the case of State v. Aiken, supra:

“There is no evidence of illicit intercourse, no showing as to whether she was married or unmarried, and nothing to indicate the condition of her health, except that she walked to the office of the defendant two or three times. Surely, this does not prove beyond a reasonable doubt that the miscarriage was not necessary to save the life of the mother. And we are of the opinion that it does not make out even a prima-facie case. . . . Every presumption is in favor of defendant’s innocence; and if the facts shown are capable of explanation on any reasonable hypothesis in favor of innocence, there can be no rightful conviction. There was not sufficient evidence to support the material allegations of the indictment, and defendant’s motion for a new. trial should have been sustained.”

In the case of Moody v. State, supra, it was said:

"The circumstances attending the procurement of an abortion, tending to prove that it was unnecessary for the purpose of preserving the life of the mother, ordinarily can be shown quite as easily- on the part of the prosecution, as it can be proved by the defendant that it was necessary for that purpose. . . . The statute does not declare every procurement of an abortion to be an offense; but does so only when it is not done for the purpose of saving the life of the mother. The absence of this necessity is, then, so far descriptive of the crime, that the offense cannot be established without proof that such necessity did not exist. It is the producing an abortion in the absence of such necessity, that, upon the theory of the statute, constitutes the offense.”

It is stated in 1 Cyc. 188, that “the burden of proof rests upon the State to show that the production of the miscarriage was not necessary for the. purpose of saving the mother’s life. Such burden is complied with, however, where no evidence is introduced to the contrary, by the presumption that it was not necessary to save her life.” (Italics ours.) We have examined all of the eases cited in support of the rule italicised. In our view, except as we have already referred to those cases (all of which, except two, we cite) they do not bear out the rule stated. Neither is such a rule borne out by the rule touching presumptions. The rule stated in 1 Cyc., supra, leaves out of consideration that cardinal rule as to the presumption of innocence. Where one presumption in law meets another as here, face to face, the occasion is meet and propitious for some proof to break the inevitable deadlock. If there be degrees and grades in presumptions, it would seem that the. presumption of innocence ought to prevail over such a presumption as that invoked to eke out the rule stated in 1 Cyc., supra. We always instruct in all felonies, and in misdemeanors when requested, that “the law presumes the-innocence of defendant and not his guilt; that this presumption of innocence attends and protects the defendant throughout the trial and until it is overcome by evidence which proves his guilt beyond a reasonable doubt.” We are wholly unable to see the logic from which the rule in Cyc. follows. This rule as stated in Cyc. comes from State v. Lee, 37 Atl. 75, and it is plain that it does not connote either the criticism we make above, or other objections thereto ably urgéd against it in State v. Wells, 35 Utah, 400.

Passing this point, we conclude that by the great weight of the ruled cases, and from the logic of the case and for reasons to be deduced from rules on cognate matters, the burden is on the State to prove the non-necessity of the abortion to save the life of the mother or the life of an unborn child. The other negatives in the exception, so clearly take care of themselves, either in that if defendant be a physician, the defense that the abortion was advised by a physician, does not avail him (State v. Gow, 235 Mo. l. c. 324), and also, manifestly if defendant be not a physician, but the abortion was done by defendant upon the advice of a physician, this fact, ex necessitate, is a pure matter of affirmative defense, arising from the utter impossibility of the State’s making proof of it, and arising from the knowledge of it and the name of the physician so advising being absolutely locked in the breast of defendant. [State v. Hathaway, supra.] The case of State v. Meek, 70 Mo. 355, the present form of our statute on abortion considered, should in this behalf be no longer followed.

We reach this conclusion in full appreciation of the possibility of miscarriages of justice under it. But this consideration is for the Legislature and not for us. We must construe the law as we find it and not as we would wish it to be.

III. We next come to consider the nature of the proof required in order to meet the burden which we are constrained to conclude is upon the State. The courts everywhere have recognized the utter futility of actual proof, and have with practical unanimity held' that a prima-facie case is made out by proof of the fact that the woman was in good health, or in her usual and ordinary condition of health, immediately prior to the commission upon her of the ’abortion charged. [State v. Sonner, 253 Mo. 440; State v. Casto, 231 Mo. 398; State v. Dargatz, 244 Mo. 218; State v. Longstreth, supra; State v. Wells, supra; Dixon v. State, 46 Neb. 298; People v. Balkwell, 143 Cal. 259; 1 R. C. L. 78.]

In the case of State v. Casto, supra, at page 408, it was said on this point by Judge Gantt:. “If the burden was on the State to prove this negative, we think when it appeared by the uncontradicted testimony that up to the very hour Anna Bell was taken to the Stotts house, she was in perfect health, the burden then shifted to defendants to show that the abortion was necessary to preserve her life, because if such was the case and abortion bad been resorted to for that purpose, the necessity was a matter peculiarly within the knowledge of defendant, and the doctor.”

Manifestly this in a way is the proof of the intent with which the miscarriage is produced, by circumstantial evidence. It has been said the phase of circumstantial evidence here involved is similar to that elsewhere prevailing in the law touching circumstantial evidence. [1 R. C. L. 78; State v. Wells, 35 Utah, 400.] This in our view is not true in the sense that the court would have to instruct and the jury would have to find, that “the facts and circumstances shown in evidence must be not only consistent with defendant’s guilt, but inconsistent with every reasonable theory of bis innocence.” Certainly, this would not be required solely upon the prima-facie case made by the State, nor until the defendant bad himself offered some affirmative proof tending to show the medical necessity of the abortion produced; thus presenting an issue of fact raised by the circumstantial evidence of the State upon the one side and the countervailing proof of the defendant upon the other side. When nothing but the prima-facie case made by the 'State upon the point of intent as declucible from proof of an abortion committed upon the body of a healthy woman is in the case the jury might well be told to infer this intent from all of the facts and circumstances in evidence in the case bearing upon the question of intent. [State v. Alexander, 119 Mo. 447.] We find no fault with this instruction.

IV. Viewed in the light of the facts, as we set them out and .in the law as we believe we find it, was there sufficient proof in the record of the intent with which defendant committed upon Rose Ellis the abortion, which she says and the jury found, he produced on her? "V7e think not.

She says that “when she went down there she was feeling’ bad and she thought — ” (here she was interrupted and stopped without concluding the telling of what she thought). She also says she had a napkin on when she first went to the defendant’s office. Instead, therefore, of there being'here present in the record proof of her antecedent good health, what meager proof there is shows the contrary. [State v. Sonner, supra.] She was asked, it is true, whether defendant told her that the abortion was necessary to preserve her life or the life of an unborn child, and she answered that defendant had not told her any such thing. That'does not help this case, unless we could judicially notice, as we cannot, or unless there were proof of the fact in the record, as there is not, that physicians always and in all cases take their patients into full confidence and tell them why each medical or surgical step is taken. Upon the ground of the insufficiency of the evidence in the case to negative the non-necessity of the abortion, the demurrer to the evidence ought to have been sustained.

We have already under paragraph three indicated our views upon the criticism of defendant as to instruction No. 4, and there in effect disallow it. However, for the error noted, the case must be reversed and remanded for a new trial. Let this be done.

Wallter, P. J., and Brown, J., concur.


author: BROWN, P. J.

text:
    THE STATE v. GEORGE W. BURGESS, Appellant.
    Division Two,
    June 23, 1914.
    1. RAPE: Corroborator): Detailing Statements of Prosecutrix. In. corroboration of the testimony of prosecutrix in a rape case the State is entitled to prove by other witnesses that prosecutrix made complaint to them that she had been ravished, but the witnesses cannot be permitted on direct examination to detail the statements made to-them by prosecutrix where defendant does not admit the sexual relation.. The prosecutrix cannot be corroborated by proof that she made the same statements out of court that she makes at the trial.
    2. -: -: Defendant’s Wife: Testimony as to Sexual Relation With Others. It is error to permit the State to require defendant’s wife, on cross-examination, to testify the details of a report she had heard to the effect that defendant before his marriage had sustained illicit sexual relations with another -young woman. Defendant’s reputation cannot be attacked by proof of specific immoral acts through a witness who has not testified to his good character.
    3. -: -: Corroboration By Proof of Wife’s Separation. Testimony that defendant’s wife separated from him about the time of the alleged ravishment of the girl, or that she was jealous of him during a part of their marital life, is not competent for purposes of corroboration, nor is it harmless. Nor is it proper to permit the State on cross-examination of defendant’s wife to prove more concerning her separation from him than the fact that she did separate from him about the time of the alleged offense, and if her testimony is that she did not separate from him at any time the inquiry should end there.
    Appeal from Dunklin Circuit Court. — Hon. W. S. G. Walker, Judge.
    Reversed and remanded.

      B. J. Smith, Virgil McKav and J. P. Tribble for appellant.
    (1) Tlie court erred in permitting the prosecuting attorney to ask leading questions in his examination-in-chief of the prosecuting witness, practically the entire examination being leading. Since this matter rests in discretion, we have cited no authorities on the point, as the appellate court will decide each case according to the peculiar facts and conditions of that case. (2) .The remark of the court was seriously prejudicial and was clearly expressive of the fact that the court was in sympathy with the prosecutrix, and that defendant’s counsel were seeking to take an ungentlemanly advantage of her. Her poverty should not have served as a cloak for improper examination, or been considered as an evidence of guilt of the defendant, yet her condition in that regard was emphasized. In prosecutions for rape the accusation is too often taken for proof of guilt, and the heinous nature of the offense all too likely to sway the minds of the jurors, and such remarks were calculated to do incalculable harm. That the remarks were harmful is shown by the heavy verdict in spite of an almost, or quite, absolute failure of proof of rape. There was no proof of forcible ravishment, and her mental condition was not such as to render her incapable of consenting, according to the testimony, taken at its worst. . (3) The court permitted the prosecuting witness to testify to the fact that she made complaint to others, long after the alleged ravishment. At that time defendant had not testified, nor denied the sexual intercourse, nor had the complaints made by her been brought out on cross-examination. This testimony was erroneous. There was no foundation for it, and it was too remote. State v. Bateman, 198 Mo. 221; State v. Jones, 61 Mo. 235. (4) It was error for the court to permit the prosecuting witness, in her direct examination by the State, to deny that she had made certain statements to other persons, contradicting her testimony. (5) Mrs. Lora Johnson was permitted to testify to statements made to her many hours after the alleged rape. This was error. State v. Bateman, 198 Mo. 221; State v. Jones, 61 Mo. 235. Furthermore, the statement made did not prove that she complained of rape, but merely of sexual intercourse, with but slight force, if any. (6) The court permitted the prosecuting attorney, while cross-examining defendant, to ask him concerning an alleged separation between defendant and his wife, caused by his alleged conduct toward the girl. This was improper, and should not have been permitted. This evidence could serve no other purpose than to make it appear that defendant’s wife had believed him to be guilty. Her opinion of guilt or innocence was not competent, but no doubt had great weight in convincing the jury of his guilt. (7) Error was committed in permitting the prosecuting attorney to ask Mrs. Burgess whether she was crying shortly after she was told of her husband’s conduct by prosecutrix; and also what she was crying about. On no conceivable theory could her mental condition be competent. (8) During the cross-examination of the wife of defendant she was asked if she did not jump on a girl and give her a whipping about her connection with her husband at Mrs. Jones’s. Defendant’s objection was overruled. She gave testimony that was not only incompetent,' but damaging, and which was prejudicial in the extreme, when the nature of the charge against defendant is considered. The admission of this testimony was error. If offered to affect the reputation of defendant, it was still incompetent. Reputation is confined to general repute, and not to specific instances or other crimes. State v. Evans, 158 Mo. 609; State v. Welsor, 117 Mo. 57.0; State v. Bulla, 89 Mo. 595. (9) The court in permitting witness Starnes, introduced by defendant, to prove good reputation, to be .asked whether he had heard of certain instances of defendant’s wife whipping a girl on account of her husband’s conduct, and whether he had heard that defendant left his wife and went to Caruthersville, and she had followed Mm. TMs was clearly incompetent and improper. cross-examination. State v. Evans, 158 Mo. 609; State v. Reavis, 71 Mo. 420; State v. Tabor, 95 Mo. 590 ; State v. Harris, 209 Mo. 441. (10) The State was permitted, over the objection of defendant, to recall the wife of defendant, and to cross-examine her regarding alleged statements made by her to Lizzie Barnes, over the telephone, concerning her alleged separation from defendant on account of this trouble. This testimony could have no bearing on the ease. It was merely showing to the jury that defendant’s wife had at one time believed him guilty. The admission of this testimony was error. State v. Bell, 212 Mo. 122; State v. Willis, 119 Mo. 485. (11) Instruction 2, given on behalf of the State, was erroneous. There was not testimony sufficient to establish forcible ravishment. The testimony of prosecutrix, regarding the force used, was that he held both her hands with one of his and threatened to slap her if she hollered. She said she tried to push him back. Yet, she kindly warns him when she saw Ms wife coming, if she is to be believed at all, and says she did not get mad at him until after she had told Ms wife, and after they had been to see him in the field, and not then, until he ordered her to leave Ms home and, she says, threatened to whip her. She made contradictory statements to others until it seems incredible that she should have been believed at all. But even her testimony fails to disclose sufficient force, or such resistance on her part, as would indicate rape. State v. Witton, 100 Mo. 525; State v. Cunningham, 100 Mo. 394; Wharton on Crim. Law (9 Ed.), sec. 565; Roscoe’s Crim. Évid. (7 Ed.), 879. Instruction 6, for the State, was erroneous. It singled out the matter of failure to make complaint, giving it undue prominence. State v. Hundley, 46 Mo. 414; State v. Smith, 56 Mo. 207; State v. Horn, 204 Mo. 550. Instruction 10, for the State, is erroneous in that it directs the jury, peremptorily, to consider the fact that defendant is testifying in his own behalf. State v. Fairlamb, 121 Mo. 148; State v. Brown, 216 Mo. 354. The statute only authorizes the jury to consider these facts for the purpose of affecting the credibility of the witness, but this instruction goes further and practically deprives the defendant of all benefits of his own testimony, or that of his wife, of little weight at best.

      John T. Barker, Attorney-General, and William M. Fitch, Assistant Attorney-General, for the State.
    (1) Appellant in this complaint says that the prosecuting witness testified to the complaint she had made to others long after the assault, and this is assigned as error. A careful examination of the transcript will show that the defendant, on cross-examination, went over the identical grounds complained of, and not only so, but the testimony of the defendant tended to contradict and impeach the testimony of the prosecuting witness; either of these grounds would justify and render proper and competent the testimony here complained of. (2) Appellant complains of the testimony of Mrs. Lora Johnson, in which she gave in evidence certain statements made to her by the prosecuting witness after the alleged assault. On the authorities cited and relied upon by appellant such testimony was not erroneous. (3) Appellant says his cross-examination by the prosecuting attorney was improper in that the prosecuting attorney asked him concerning the separation between the defendant and his wife. The question as to whether or not the defendant and his wife had separated, and if separated, whether or not it was on account of the alleged assault by defendant on the prosecuting witness, is immaterial in this case. Those questions are foreign to the question to be determined by the jury. Being for-, eign, collateral or immaterial, they could not work a reversal of this case, even though such evidence were improperly admitted. If such evidence constitutes error at all, it must be classed as harmless error and not of such a substantial character as would justify this court in reversing the judgment. (4) The appellant complains of the manner in which the prosecuting attorney cross-examined the wife of defendant, and cites three cases in support of his contention. From a consideration of these cases as applied to the testimony shown in the transcript, we fail to see that appellant has established any grounds on this point whereby he can insist on this court reversing the judgment. This was on cross-examination and the manner of cross-examination is largely within the discretion of the trial court. State v. Harris, 209 Mo. 441. (5) Appellant complains that a witness introduced by defendant to prove good reputation, over defendant’s objection, was asked whether he had heard of certain instances of defendant’s wife whipping a girl on account of her husband’s conduct. Defendant assigns this as improper cross-examination. On authority of cases which appellant cites this point must be ruled against appellant. As stated above, the matter of the cross-examination and its latitude is a matter that is largely within the discretion of the trial court. So long as the trial court does not abuse this discretion this court will not disturb a verdict on account of the exercise of such discretion of the trial court unless it clearly appears that the trial court has abused its discretion and by reason thereof that the defendant has been prejudiced in his case in some material respect. The State had a right to ask the questions to test the general knowledge possessed by the witness.
   BROWN, P. J.

Convicted of rape and his punishment fixed at five years in the penitentiary, defendant appeals.

The information charges defendant with committing the crime of rape upon one Ivena Morris in Dunklin county, on June 7, 1912.

The evidence of the prosecuting witness tends to prove that defendant forced her to submit to sexual intercourse with him by pushing her onto a bed, holding her hands and threatening to slap her. Prosecutrix is a sixteen-year-old girl whose mind is, to some extent, impaired. She was making her home with defendant and his wife on a farm at the date of the alleged offense, the county paying $4 per month for keeping her. She was also working some as a house-servant to help pay her way.

The defendant and his wife spent the night preceding the alleged crime at the home of his mother-in-law who was very ill. On the following morning defendant returned home a short .time before his wife.

Prosecutrix testified that defendant on returning home committed the crime before recited; that defendant’s wife returned a few minutes later, and, upon making inquiry about the bed being disarranged, prosecutrix told her that defendant had ravished her.

Mrs. Burgess, the wife of defendant, testified that when prosecutrix told her of the misconduct of her husband she became angry, and, taking the prosecutrix with her, they visited the field where defendant was plowing, and she asked prosecutrix to repeat the charge to her husband. This prosecutrix would not do. The wife thereupon told defendant of the crime with which prosecutrix had charged him. Defendant denied the charge and accused prosecutrix of lying, and according to the testimony of defendant and his wife, prosecutrix admitted that what she had told was false.

An hour or so later the defendant returned to his house and told prosecutrix that she must leave — that he would not allow her to stay at his home any longer. The prosecutrix did leave the same forenoon. Defendant’s wife on the same day returned to the home of her sick mother, where she remained two days.

The prosecutrix visited the homes of three of defendant’s neighbors (Mrs. Hankins, Mrs. Johnson and Mrs. Jones) on the day of the alleged crime. To these neighbors she stated that defendant and his wife had separated, and, upon being closely interrogated by said neighbors, stated that defendant had had sexual intercourse with her. To Mrs. Johnson, one of the three, she stated the details of the alleged forcible defilement.

The defendant denied having had sexual intercourse with prosecutrix, and sought to discredit her evidence by statements alleged to have been made by her to others to the effect that defendant did not have intercourse with her; and by statements elicited from prosecutrix on cross-examination to the effect that she had not sustained sexual relations with anyone before she was ravished; that the assault had not caused her any pain, and that she did not become angry with defendant until he had ordered her to leave his house.

Such other points in the evidence as are necessary to a full understanding of the issues presented will be noted in connection with the conclusions we have reached.

Defendant has assigned more than twenty alleged errors in his motion for new trial and brief. We will consider such of them as we deem worthy of special attention.

I. Defendant’s first assignment is that the court erred in permitting the State to ask the prosecutrix leading questions; and with this assignment comes another, that the trial court made a remark m the presence of the jury which prejudiced their minds against defendant.

During the direct examination of prosecutrix the following matters occurred:

“Q. While you. were looking for this pattern did anybody come into the room where you were? A» Yes, .sir, George.
“Q. Did he shut the door?
“Mr. Tribble: We object to that as leading.
“Q. Can you go on from there and tell what George Burgess said to you? A. No, sir.
“Q. Tell those men over there what George said to you. A. (Crying) I hate to.
“Q. You mean you are ashamed to? A. Yes, sir.
“Q. Did he take hold of you in that room? A. No, sir.
“Q. Can you tell the jury what he asked you? A. No, sir..
“Q. Is it because you are ashamed to? A. Yes, sir.
“Mr. Tribble: We object to these leading questions. She has already told Mr. Bradley about it and she can certainly and ought to tell it again.
“Mr. Bradley: She has said that she was ashamed to tell it.
“The Court. Mr. Tribble, there is a vast difference in telling such thing to just one person and getting on that witness stand before a room full of people. In some States in trials of this kind everybody is excluded excepting the parties interested, and this girl is entitled to as much consideration as if she had on a tliousand-dollar dress. Go ahead, Mr. Bradley, and do the best you can.
“Mr. Tribble:- We except to the remarks of the court. We are objecting to the leading character of the question, and agree that she is entitled to as much consideration as anyone else. . . .
“Q. Did Burgess push you over on that bed? A. Yes, sir.
“Mr. Tribble: We object to that because it is leading.
“The Court: Overruled.
“Mr. Tribble: We except. . . .
“Q. Do you know what sexual intercourse means; you know what that means? A. No, sir.
“Q. Did this man do business with you there? A. Yes, sir. . . .
“ Q. What was said to him by you about his wife ? What did you say to him about his wife coming while he was on you? A. I told him he had better get up, that I seen Dolly coming, and he said, ‘I don’t care if she is,’ and so when Dolly got pretty close to the house he got up.
“Q. Did you see Dolly coming yourself? A. Yes, sir.”

In considering the admissibility of the leading questions which the court permitted the prosecuting attorney to propound, it is necessary to keep in mind the mental condition of the prosecutrix. She testified that she had attended school; that the last books she studied were a fourth reader and an arithmetic. Many of the witnesses testified that she had been a person of weak mind since she was a year old. A physician gave it as his opinion that her mental development was only about fifty per cent normal — that she would 'not be likely to know that it was wrong to have sexual intercourse, and would probably not understand the nature and consequences of giving false testimony in a trial. Many of her answers indicate that she is a person of average intelligence for her age.

Under this showing, and without knowing the appearance or physical demeanor of witness while testifying, we are constrained to hold that the court did not err in permitting the prosecutor to ask the leading questions hereinbefore recited. A liberal discretion is allowed to the trial court in such matters. [State v. Bateman, 198 Mo. 212; State v. Whalen, 148 Mo. 286.]

However, we are not able to lend our endorsement to the remark of the court by which defendant’s attorney was reprimanded, without cause, for merely objecting to leading questions. In making his objections he was acting in a perfectly natural and legitimate manner. The remark complained of was calculated to lead the jury, to believe that the court thought defendant to be guilty, and that his attorney was wrongfully trying to suppress the truth.

It is not the proper function of a trial judge to act as prosecutor, or even assistant prosecutor—he should, as far as possible, refrain from making remarks which may lead the jury to understand upon which side of the case his sympathies fall—he should conduct himself as an impartial umpire in the legal struggle between the State and defendant. While condemning the improper remark of the trial court, we are not holding that this alone would be sufficient to work a reversal if the record were otherwise free from error.

II. A further insistence of defendant is that error was committed in permitting the prosecutrix, on her direct examination, to deny that she had made statements to other persons to the effect that defendant did not ravisn her—that he tried to do so, but did not succeed. It was also assigned as error that prosecutrix was allowed to testify that she made complaint of her mistreatment to other parties on the same day she was ravished. It was certainly at variance with the order of proof designated in section 5231, Revised Statutes 1909, to permit rebuttal testimony to come in before the defendant had offered any evidence. Under the facts of this case it was harmful to defendant to permit prosecutrix to testify that she had told Mrs. Hankins, Mrs. Jones and Mrs. Johnson that she had been ravished, for the reason that when those same witnesses were introduced they did not testify to facts which amounted to a complaint.

The evidence of all the witnesses last named is to the effect that prosecutrix merely told them that defendant and his wife had separated over her (prosecutrix). The alleged fact that a crime had been committed by defendant was only ascertained by the witnesses by the diligent application of interrogatories to prosecutrix. Information thus obtained does not amount to a complaint of having been ravished within the contemplation of the law. In 33 Cyc. 1467, the doctrine is announced as follows: “As a rule statements made in answer to questions or otherwise involuntarily elicited do not constitute such complaint as is admissible under the rules above stated.” See, also, State v. Pollard, 174 Mo. 607, l. c. 616. By allowing prosecutrix to testify that she did make complaint to those witnesses that she had been ravished, when she had not in fact voluntarily made any complaint, was allowing her to corroborate her own evidence as to the fact that a crime had been committed — a thing which clearly ought not to have been permitted. Upon a retrial of the cause (if the State elects to re-try) the court should require the proof that a complaint was made by prosecutrix (if she made one) to be established by the evidence of those persons to whom the complaint was made.

III. A further contention of defendant is that the court, over defendant’s objection and exception, permitted the prosecuting attorney to prove by witness Lora Johnson, on her direct exam in ation, the specific acts of defendant which prosecutrix related to her as constituting the offense of rape. The State was entitled to prove by Mrs. Johnson that prosecutrix made complaint to her that she had been ravished, but as that witness was speaking only from hearsay, she should not, upon her direct examination, have been permitted to give the details of her conversation with prosecutrix. [State v. Bateman, 198 Mo. 212; State v. Lawhorn, 250 Mo. l. c. 306.]

In the instant case the witness Johnson, whose intellect was not impaired, gave evidence to the effect that prosecutrix made to her (Johnson) about the same statements which prosecutrix testified to on the trial of the cause. This evidence also came in response to leading questions which suggested, in the plainest manner, the answers desired. To permit a party to corroborate a witness by proof that on some other occasion the witness made the same statements to another party which he or she has testified to upon the trial, would set up a new and dangerous method of corroboration.

Where a witness has made statements out of court which are in conflict with his evidence as given upon a trial, such conflicting statements may be shown to discredit the witness; but there is no rule that permits the corroboration of a witness by proof that he has made the same statements to different persons. If such a practice as the State adopted in this case were permitted, an untruthful witness could then corroborate’ himself as to a falsehood by first relating the falsehood to other parties, and then, after he has sworn to the falsehood, introduce such other parties to show that he has theretofore made the same statements to them. Of course, upon the coming in.of evidence that a witness has made statements which conflict with his sworn testimony, other evidence may be introduced which tends to prove that no such conflicting statements were made.

In the Bateman case it was held that the admission of the class of evidence complained of was not reversible error where the defendant admitted the act of sexual intercourse with prosecutrix; but the defendant here makes no such admission.

The statements of prosecutrix relating to the details of the alleged crime made to Mrs. Johnson some twelve hours after the offense was committed (if committed) were not made in the presence of defendant, and the act of the court in permitting Mrs. Johnson to give the details of such conversation as part of her direct examination constituted reversible error.

IV. The trial court and the prosecuting attorney seem to have deemed it absolutely necessary to prove that prosecutrix' made a complaint to gomeoIL6 0f the fact that she had been ravished; otherwise a conviction could not be obtained. Such is not the law. A voluntary complaint of prosecutrix is no element of the crime, but only tends to corroborate her evidence where she testifies to facts which tend to prove that she was ravished. [State v. Miller, 191 Mo. l. c. 612; State v. Marcks, 140 Mo. 656.] If the prosecuting witness is so feeble-minded that she did not know that it was wrong for the defendant to have sexual intercourse with her, then she will not be required to make either outcry or complaint; and a conviction may be sustained without any proof that a complaint was made by her to anyone.

The law relating to rape committed upon an insane woman was correctly announced by the trial court in its instruction number 3, which reads as follows:

“The court instructs the jury that if you believe and find from the evidence that the defendant, at and in the county of Dunklin, and State of Missouri, at any time before the filing of this information, did wilfully and feloniously have sexual intercourse with one Ivena Morris, and if you further believe and find from the evidence that at the time of such intercourse, if you believe it was had, the said Ivena Morris was a person of unsound mind and of such weak intellect and intelligence that she could not and did not know or comprehend the nature and consequence of such an act, and could not understand right from wrong, you will find the defendant guilty of rape, and assess his punishment at death or imprisonment in the penitentiary for a term of not less than five years.” [State v. Williams, 149 Mo. 496; 33 Cyc. 1426.]

V. The cross-examination of defendant’s wife was allowed to assume undue bounds. She was not only examined rigidly as to the alleged separation of herself from defendant, but was refibred to detail the fact that she had heard a report to the effect that her husband had sustained illicit sexual relations with one Eva Davidson before his marriage to witness. This evidence was not admissible. The witness had not been interrogated regarding this report during her direct examination (Sec. 5242, R. S. 1909), and defendant’s reputation cannot be attacked by proof of specific immoral acts through a witness who has not testified to his good character. [State v. McDonough, 232 Mo. 219, l. c. 234.] The defendant had testified in his own behalf, and if his general reputation was bad he could have been impeached or discredited by calling some of his neighbors who had heard of his immoral acts. [State v. Phillips, 233 Mo. 299.] It was not permissible to establish his bad repu.tati.on by an improper examination of his wife.

In the trial of the cause the prosecuting attorney seems to have thought the evidence of prosecutrix needed corroboration, and that if he could prove defendant’s wife left him about the time it is charged that he committed the crime for which he was then on trial, or if it could be proven that defendant’s wife was jealous of him during any part of their marital life, this would furnish the desired corroboration. The State introduced pages of evidence for the sole purpose of showing that a separation did take place. While some of this evidence was not objected to in a proper manner, and is not before us for review, I feel constrained to call attention to its incompetency now, to the end that the case may be retried upon proper evidence.

The learned Attorney-Greneral admits that evidence tending to show that defendant’s wife left him was' immaterial, but claims that such evidence was harmless. We do not concur in this view. If defendant’s wife knew he was guilty it would have a strong tendency to make her desire to leave him, and a jury might be led to believe that, if defendant’s wife left him about the time he is charged to have committed the crime, she did so because of personal knowledge on her part that he was guilty. It is a matter of which we take judicial notice that wives frequently desert their husbands, and husbands their wives, for causes wholly disconnected with sexual crimes, and often for no real cause at all.. The evidence of defendant’s wife on cross-examination was emphatically to the effect that she did not leave her husband at anytime, and the inquiry, being as to a collateral matter, should have ended there.

VI. Defendant also complains of the following instruction given on the part of the State:

“The court instructs the jury that under the law the defendant is a competent witness in his own behalf, and that his wife is a competent witness to testify. for him, but in determining what * ' ^ weight you will give to the testimony of the defendant and his wife, you are instructed to take into consideration the fact that he is the defendant testifying in his own behalf and his interest in the result of this trial, and you will also take into consideration the fact in determining what weight you will give the testimony of his wife, that she is his wife, testifying for him.”

The above instruction is quite similar to the stock instruction given in nearly all criminal cases in which the wife testifies on behalf of the husband. The only difference in the instruction now in judgment and those generally given and often approved by this court, is that the instruction usually given follows more nearly the words of the statute and directs the jury that it may take into consideration the fact that the defendant and his wife are interested in the result of the trial; while the instruction above quoted and given in this case makes it the direct and imperative duty of the jury to consider the fact that the defendant and his wife are interested in the result of the trial — this regardless of whether they believe that such witnesses have sworn truthfully or falsely.

I suppose if the instruction as given in this case is approved it will next be in order for some trial judge to further disregard the law which prohibits instructions that comment upon the evidence (Sec. 5244, B. S. 1909) by telling the jury that they ought not to believe the testimony of defendant or his wife because they are interested in the result of the trial, thereby wiping out all benefit which a defendant and his wife, or a defendant and her husband, may derive from their statutory right to give evidence in behalf of each other, or in behalf of themselves in criminal trials.

Speaking for myself, I do not believe that the proviso in section 5242, Revised Statutes 19.09', which permits the fact to be shown that a witness is a defendant, or the husband or wife of defendant, “for the purpose of affecting the credibility of such witness,” was ever intended to authorize a court to give an instruction telling the jury how to weigh such evidence. Jurors are presumed to be men of fair natural sense.

It has long been the law that the interest of a witness in the result of a trial, or his relationship to the accused or other party to the suit, may be shown for the purpose of casting discredit upon his evidence. [State v. Elkins, 101 Mo. 344; Waddingham v. Hulett, 92 Mo. 528; and State v. Decker, 161 Mo. App. 396.] In 40 Cyc. 2657, the rule is announced that: “The fact that a witness is a relative of a party bears on his credibility, and so where husband and wife testify for each other the relationship should be considered. The fact of relationship does not, however, establish interest or bias, but is merely a circumstance from which it may be inferred."

So that the proviso of section 5242, before noted, adds nothing to the law of evidence, and ought not to have been made the subject of a special instruction. While I do not approve the instruction as given in this case because it tends to enlarge or expand a class of instructions which have a very shadowy footing in law, in the recent case of State v. Hyder, 258 Mo. 225, I did approve an instruction of that character given in the usual form. I did this not because I believed such an instruction ought to be given, but because such instruction had so often met with the approval of this court, and was probably harmless in that case, where the guilt of defendant was proven by an overwhelming array of evidence, and where the testimony of the wife related to a matter upon which she had no reliable knowledge.

In the Hyder case and many other cases therein noted instructions calling attention to the interest of a specifically named or designated witness was severely criticized, and I do not wish prosecutors or trial courts to understand that because I have upheld such instructions as harmless I will continue to do so. In a* doubtful case where such an instruction has proven preju-' dicial to defendant on the merits I may consider it reversible error.

VIII. The evidence that prosecutrix was kept at a poor-farm at the time of the trial did not harm defendant m this case, because he had already voluntarily testified that the county was paying him for her keep while she was at his home.

Several other matters are complained of by defendant, but we cannot discuss all of them without making this opinion unnecessarily long. If the attorneys and trial court will acquaint themselves with the law pertaining to this class of cases, the cause may be retried (if the State elects to retry) in accordance with the law.

For the errors of the court noted in paragraphs III and Y of this opinion the judgment of the trial court is reversed and the cause remanded.

Walker, P. J., concurs in result; Paris, J., concurs in paragraphs 3 and 5 • and result.