author: WALKER, J.

text:
    THE STATE v. THOMAS B. SMITH, Appellant.
    Division Two,
    May 20, 1913.
    1. RECEIVING STOLEN GOODS: Information: Essential Elements of Larceny. An. information charging defendant with having received stolen goods, knowing them to have been stolen, should allege all the essential elements .of larceny, since he has the right to join issue with the State on the fact of the larceny and to show that the goods were not stolen.
    2. -: -: -: Description of Goods. “Thirty thousand San Felice cigars of the value of fifteen hundred dollars, one case of dry goods of the value of six hundred dollars,” is a sufficient description to apprise defendant what stolen property he is charged with having received.
    3. -: -:---: Intent: Knowledge of Owner. The information need not allege that defendant received the stolen goods with the intent to deprive the owner of the same, nor that he knew the goods were stolen from any particular person.
    4. -: -: -: Name of Owner. The information charging defendant with having received stolen goods, knowing them to have been stolen, may allege the person or corporation in whose actual possession they were when stolen, to be the owner. In this case the goods were stolen from a railroad company, while in transit, and the information charged said company to be the owner, and that is held sufficient, though the railroad company was not the actual, but only the constructive, owner.

      5. CROSS-EXAMINATION: Interest in Prosecution. It is not improper for the State, on cross-examination of one of defendant’s character witnesses, to ask him if he had not sought to influence the prosecution in defendant’s favor. Anything tending to show bias on the part of the witness may be drawn out on cross-examination.
    6. RECEIVING STOLEN GOODS: Larceny or Embezzlement? The check clerk of a railroad freight office, who falsely remarks and reconsigns to a fictitious person goods belonging to another, and then through a conspirator has them reshipped to defendant, who receives them, is guilty of larceny, not embezzlement.
    7. -: Possession of Other Stolen Goods: Scienter. It is proper to permit the State to produce testimony to the effect that a defendant, charged with receiving stolen goods, knowing them to have been stolen, had in his possession other articles of stolen property, where the evidence of the other offenses shows a common plan or scheme for receiving stolen goods so closely related to the offense in question that proof of them tends to establish the latter. Guilty knowledge is the gravamen of the offense, and the scienter may be proven by other previous similar acts.
    8. --: -: Intermixed with Offense Charged. Where the other acts of receiving stolen goods are so mixed and intermingled with that particular act for which defendant is on trial, as to render it impossible to give full proof of that act without at the same time showing the others, the evidence of any or all of them is admissible.
    9. -: Instruction: Erroneous Definition of Feloniously. A, definition of “feloniously” in an instruction as “wickedly, and against the admonition of the law, that is, wickedly and unlawfully” is incorrect; but it is unnecessary to either define or use the word in instructions which point out the facts which constitute the felony charged, and hence its incorrect definition was harmless.
    10. -: -: Casual Statements: Cautionary. When verbal statements of defendant casually made in ordinary conversations, or on occasions more or less remote from the time of the offense charged, are produced in evidence, a cautionary instruction, because of the liability of witnesses to forget or a lack of a serious appreciation of their import, should he given, as a corollary to the instruction upon the weight to be attached to such verbal statements. But where they were not made casually, but at the time a portion of the stolen goods were found in defendant’s possession and to officers and other persons who had a peculiar interest in the matter, it is not error to refuse such an instruction.

      Appeal from Jackson Criminal Court. — Eon. Edward E. Porterfield, Judge.
    Affirmed.

      R. B. Kirwan for appellant.
    (1) The information filed herein was insufficient in that it was illegal and void. State v. Fink, 186 Mo. 58; State v. Lackey, 230 Mo. 714; State v. Pollack, 105 Mo. App. 278; State v. Stowe, 132 Mo. 208; State v. Barbee, 136 Mo. 440. (2) The court erred in allowing the prosecuting attorney to ask witness if he had not approached another party to bribe the prosecuting attorney. This was highly prejudicial to the appellant and tended to prejudice the jury against him. State v. Conway, 241 Mo. 280 ; State v. Woolard, 111 Mo. 255; State v. Bobbst, 131 Mo. 338; State v. Jackson, 95 Mo. 652; State v. McGrath, 228 Mo. 428; State v. Clancy, 225 Mo. 659; State v. Lentz, 184 Mo. 243; State v. Moxley, 102 Mo. 393; State v. Shipley, 174 Mo. 517; State v. Hyde, 234 Mo. 256; State v. Fisher, 124 Mo. 460. (3) The prosecuting attorney’s conduct and demeanor throughout the trial, his slurring remarks, his referring to appellant herein as a fugitive from justice, that he consorted and lived with a lewd woman in Atchison, Kan., all these tended to prejudice the jury against the rights of this appellant. (4) The evidence submitted to the jury showed that Wedow did not commit larceny but that he committed the crime of embezzlement. Sec. 4554, R. S. 1909; State v. Shermert, 55 Mo. 86; State v. Ware, 62 Mo. 602; State v. Pollock, 105 Mo. App. 277; State v. Fink, 186 Mo. 60; State v. Casey, 207 Mo. 5; State v. Williams, 35 Mo. 231. (5) The court erred in admitting over the objections of the defendant, incompetent, irrelevant, immaterial and prejudicial testimony offered by the State and in excluding competent, relevant and material testimony offered by the defendant. State v. Hyde, 234 Mo. 225 ; State v. Spangh, 200 Mo. 594; State v. Collins, 181 Mo. 261; State v. Spray, 174 Mo. 576; State v. Bailey, 190 Mo. 280; State v. Coetz, 34 Mo. 89; State v. Boatright, 182 Mo. 51; State v. Parker, 96 Mo. 382; State v. Brown, 188 Mo. 464; People v. Molineux, 168 N. Y. 26, 62 L. R. A. 240; Shaffner v. Commonwealth, 72 Penn. 60. (6) Instruction one given on behalf of the State was erroneous. State v. Witt, 9 Mo. 671; State v. Smith, 37 Mo. 64; State v. Rutherford, 152 Mo. 131; State v. Miller, 159 Mo. 118; State v. Littrell, 170 Mo. 15; State V. Walker, 174 Mo. 523 - State v. Pink, 186 Mo. 58 ; State v. Speritus, 191 Mo. 24; State v. Weatherman, 202 Mo. 10; State v. Richmond, 228 Mo. 366; State v. Sweeten, 75 Mo. App. 134; State v. Pollock, 105 Mo. App. 278. (7) Instruction sixteen offered by defendant ought to have been given. State v. Grhahn, 97 Mo. 693; State v. Motley, 102 Mo. 390; State v. Hendricks, 172 Mo. 668; Commonwealth v. Cray, 4 Cray, 29; Heldt v. State, 20 Neb. 494.

      John T. Barker, Attorney-Ceneral, for the State; Paul P. Prosser, of counsel.
    (1) The information is in substantial compliance with forms which have received the express approval of this court, and contains every element necessary to charge the offense of knowingly receiving stolen goods. Under the provisions of the statute the gravamen of the offense is receiving stolen goods, knowing the same to have been stolen. The crime denounced by the statute is a substantive offense, and it is immaterial who stole the goods, or from whom they were received, provided they still retain the character of stolen goods. It follows that the information need not state the name of the thief or the person from whom the stolen goods were received. Sec. 4554, R. S. 1909; State v. Guild, 149 Mo. 374; State v. Fink, 186 Mo. 52; State v. No sky, 191 Mo. 10; 34 Cyc. 521. (2) The verdict is responsive to the issues raised by the information, is abundantly supported by the evidence and is amply sufficient to sustain the judgment. State v. Richmond, 186 Mo. 83; State v. McGee, 188 Mo. 432; State v. Smith, 190 Mo. 728; State v. King, 194 Mo. 484. (3) This case was tried over innumerable objections on the part of counsel for defendant, .most of which were directed to the action of the court in admitting evidence of the receipt of other stolen goods by defendant, at times not remote from and under circumstances connected with the receipt in question, for the purpose of showing guilty knowledge. We fully recognize the general rule that evidence of a' distinct crime,- entirely disconnected with the offense charged in the information, and having no real tendency to prove the same, is incompetent; but as this court has said, “this well-settled rule has its exceptions equally well-settled.” State v. Goetz, 34 Mo. 89; State v. Meyers, 82 Mo. 558; People v. Molineaux, 168 N. T. 293. As one of the essential ingredients of the offense with which defendant was charged is guilty knowledge, and as the evidence showed a common plan or scheme embracing various receipts of stolen goods, so closely related to the receipt in question that proof of the former tended to establish the latter, this case, also, must be held to come within the exception. State v. Wilson, 143 Mo. 346; State v. Hodges, 144 Mo. 53; State v. Phillips, 160 Mo. 506; State ■ v. Spray, 174 Mo. 582; State v. Hyde, 234 Mo. 225, 34 Cyc. 525. (4) While it is true that specific acts of lawlessness or moral turpitude are not admissible for the purpose of proving a bad reputation, yet defendant had tendered his good character as an issue, and it was entirely proper to question his witnesses in that behalf on cross-examination as to defendant’s conduct and their information in regard to important facts in Ms life, in order to test their truthfulness and to determine the means whereby they had acqMred the knowledge upon which their estimate of his character was based. The manner and extent of such cross-examination is a matter largely within the discretion of the trial court. State v. Crow, 107 Mo. 347; State v. McLaughlin, 149 Mo. 33; State v. Parker, 172 Mo. 207; State v. Boyd, 178 Mo. 18; State v. Brown, 181 Mo. 214; State v. Kennedy, 207 Mo. 538. (5) Instruction one required the jury to find every substantive fact charged in the information and declared by the statute (Sec. 4454, E. S. 1909) to constitute the offense for which defendant was on trial, and was therefore unobjectionable. State v. Miller, 93 Mo. 269-; State v. Eichmond, 186 Mo. 78; State v. Cronin, 189 Mo. 670. We must frankly state that in cases where the verbal statements of the defendant, made casually and in the course of'ordinary conversation, form a part of the evidence, and, particularly, where it appears that such statements were made on an occasion more or less remote from the time when they were disclosed, this court has uniformly approved the rule that a cautionary instruction, in the nature of that offered by defendant in the present case, should be given as a corollary to the instruction upon the weight to be attached to such verbal statements. But this court has also held that his rule is not always to be followed, and the present case plainly comes within the exception. The instruction sixteen was not warranted by the evidence, for the reason that defendant’s statements “concerning the manner or circumstances attending his possession of the goods mentioned in evidence” were not made “casually” or “in the course'of ordinary conversation.” State v. Henderson, 186 Mo. 493.
   WALKER, J.

The defendant is charged in an information filed by the prosecuting attorney of Jackson county with receiving stolen goods knowing them to have been stolen from the owner, the Missouri-Pacific Railway Company.

A trial before a jury resulted in a verdict of guilty and the assessment of the punishment at four years’ imprisonment in the penitentiary. From this sentence defendant appeals. Pending the appeal a stay of execution was granted upon the filing of a satisfactory bond.

In March, 1910, a manufacturer of cigars at Lima, Ohio, shipped thirty thousand “San Felice” cigars to Sol H. Cohen, Coffeyville, Kan. This shipment was delivered to the Pennsylvania Railroad at Lima for transportation to St. Louis, whence it was routed via the Missouri-Pacific Railway Company to Coffey-ville, Kansas. It was duly received at Kansas City, Missouri, on March 17, 1910, in a New York Central car, from which it was checked out to a Missouri-Pacific car, which was the Coffeyville ear on that date. The Coffeyville car arrived at its destination March 18, 1910, with the seals intact, but it was discovered by Cohen upon being notified of the arrival of the goods that the shipment was short three cases of cigars. Cohen not being able to secure any trace of same, made a claim therefor to the company for goods lost in transit.

Subsequent investigation disclosed that upon the receipt of this shipment at Kansas City, it was taken in charge by the local freight agent of the company, who had several assistants. The manner in which the shipments were received by the railway company showed that waybills accompanied each shipment, and when a transfer of freight was to be made from one car to another a check clerk was given the waybill for that car, in order to identify the goods and make a record of the transfer. It was the duty of the check clerk to handle the waybills and check out the packages noted thereon; to direct the truck men which packages were to go to the warehouse and which were to be taken to other ears; and in ease of a transfer to another car, to which particular car the freight was to go.

At the time in question one of the assistants of the local freight agent was a check clerk named Prank Wedow. As cheek clerk, Wedow had access to the ears and was provided with a paint pot and brush for the marking of freight. Through a corrupt agreement with one Bud Connole,. afterwards shown to have a “police character,” Wedow and another check clerk named McMahon had been stealing from the railroad company by diverting shipments of freight; Wedow, who testified for the State, stated the manner in which these shipments were diverted; the name of the orignal consignee would be marked out and the freight reconsigned, usually to some fictitious persons at Leavenworth, Kansas; the freight would then be checked short on the original bill, a new bill of lading would be issued by the check clerks in duplicate in the name of the fictitious consignee, and the freight shipped out as an original shipment from Kansas City. To give such false bills of lading an appearance of genuineness, Wedow would sign them and place them on what was called the “block stamp,” to which he had access in the office. He would then deliver a copy of the fraudulent bill of lading to Bud Connole, and file the other in the block office, where another clerk who prepared the waybills would take charge of it. Subsequently the freight would be called for at Leavenworth, by some one representing the fictitious consignee, and it would be shipped back to Kansas City; in a week or two thereafter Bud Connole would turn over to Wédow the money representing the latter’s share in the profits of the unlawful enterprise.

In the manner above described, on March 17, 1910, Wedow stole from the Missouri-Pacific Eailway Company three eases of the cigars consigned to Sol H. Co hen, and a ease of dry goods. The cigars were reconsigned by Wedow in two shipments, consisting of one case of cigars and two cases of cigars respectively, to “J. A. Long, Leavenworth, Kansas,” and the case of dry goods to “ J. F. Evers, Leavenworth, Kansas.” Bills of lading were issued by Wedow in duplicate showing shipments of one case of cigars and two cases of cigars, and one case of dry goods, as above stated.

From the loading list of the railway company it was shown there was only one car loaded out of Kansas City, Missouri, for Leavenworth, Kansas, on March 17, 1910; and on that date the waybills of the company showed that there were shipments of one case of cigars and two cases of cigars and one of dry goods.

The shipments were duly received at Leavenworth on March 18, 1910, and on the following day one J. W. King, an employee of the defendant, presented the fraudulent bills of lading which had been made out by Wedow covering the three cases of cigars and the one case of dry goods. King surrendered the bills of lading to the cashier of the railway company at Leavenworth, received freight receipts to be delivered to the check clerk, and upon delivery of the goods to him signed his own name to these receipts, as well as the names of the fictitious consignees. Upon receiving the cases of cigars and dry goods King had them transferred from the Missouri-Pacific Railway station to the Burlington railway station where he relabeled the four cases ‘‘household goods,” and billed them out as such over the Burlington railway to J. W. King, Kansas City, Missouri. The freight receipt of the Burlington Company showed that this shipment consisted of four boxes of household goods; it was unloaded at Kansas City on March 23, 1910, and the boxes were afterwards delivered to Mat Francis, a negro driver in the employ of the defendant, who signed a receipt therefor and hauled the goods to the defendants’ place of business. During this time defendant, O. H. Platt and others were engaged in the business of buying, selling and storing household goods and furniture, and conducting a general auction house under the names of Walnut Street Auction and Storage Company, and Moore Transfer and Storage Company, at Kansas City, Missouri, By a former employee of defendant it was shown that the latter had handled cases of cigars brought to his storage house by two negro drivers, Mat Francis and Will Myers. These goods were marked with the name of J. W. King, and on the boxes appeared another name which had been partially obliterated with black paint. A few days thereafter the cigars were loaded into a transfer wagon, and defendant ordered a driver to take them to Friedman’s saloon at 5th and Walnut streets in Kansas City.

Frequent claims for goods lost in transit at Kansas City caused the Missouri-Pacific Railway Company to detail one of its special agents named N. P. Kemp to investigate the matter. Accompanied by an officer with a search warrant he went to defendant’s place of business and discovered and identified a number of different articles it was shown had been stolen from Missouri-Pacific cars, including several pianos, several cases of clothing, a case of dry goods, and five cases of San Felice cigars. They also found the original freight bill, the duplicate of which had been signed by defendant’s driver covering the goods alleged in the information to have been stolen, and which King had shipped back from Leavenworth as household goods.

There is also much evidence in regard to the identification of the property found in defendant’s storage house other than that described, not necessary to be detailed in this, connection. It was shown that through the instrumentality of Wedow, these goods had been diverted from their original destination and shipped usually to Leavenworth, Kansas, where in some instances King, under the direction of Connole, would go to Leavenworth, get the goods and re ship them to defendant at Kansas City.

The evidence showed that two cases of San Felice cigars had previously thus been stolen from the company in addition to the three described in the information;

Defendant, after making contradictory and inconsistent statements about the other property, admitted to Kemp that he had received the San Felice cigars in the sáme manner as the other goods. That Bud Connole had given him bills of .lading covering these shipments and that defendant had sent a clerk to Leavenworth to obtain the cigars and box of dry goods and ship them back to Kansas City, where he had stored them for Connole, and that he had then bought them from Connole, and afterwards sold the cigars to a saloon-keeper named Friedman. That the case of dry goods was obtained in the same way. Cigars were found in the possession of Friedman with boxes labeled “Sol H. Cohen, Coffeyville, Kansas.”

On the same morning the search warrant was served on defendant, King, the employee, made a statement in writing which the defendant in a conversation with Kemp admitted to be true. It was to the effect that one of the proprietors of the storage house had given King what purported to be an' original bill of lading covering the cases described in the information and had directed the latter to go to Leavenworth, Kansas, present the bills at the Missouri-Pacific freight house, get the freight and mark the boxes “household goods” and reship them to Kansas City over the Burlington railway, consigned to King; that on his return to Kansas City he gave the bills of lading to a Mr. Smith or Pratt, associates in business with, the defendant.

Following the service of the search warrant, defendant was called into a room at the police station where Connole was under arrest. The inspector asked defendant if that was the man, pointing to Connole, who had brought him the various bills of lading, and defendant said he was.

Connole upbraided the defendant in vile terms for his statements in regard to the matter, and among other things said: “You are a fine one.” To which defendant replied: “Well, they searched my place and found the-goods there; what could I do?” To which Connole, among other things, said: “You know who I am, you know my reputation, every yellow dog in the North end knows what I am, you knew that these goods were stolen when you bought them. Well, all right, I have consumption, and I won’t live long anyway. I won’t be here in six weeks.” To which defendant replied: ‘ ‘ Then why did you bring me into this? Why didn’t you take it upon yourself if you are going to die anyway?”

One Hardy, a dealer in second-hand goods, testified that Connole had attempted to sell him some San Felice cigars at defendant’s place of business, but they could not agree on the price.

A witness named Clark, who it was shown was also one of the partners or proprietors in defendant’s business, stated that they had some cigars in storage on March 23, 1910, and as defendant wanted to buy them from the person who planed them in storage, he, Clark, took some of them around with a view to getting prices on them. Clark was shown a receipt book kept by the bouse, which he stated ought to show all storage, but be was unable to find where Bud Connole or J. W. King had stored any goods covering the time when the property described in the information-was shown to have been in the warehouse.

O. H. Pratt, another partner, testified that he looked after the storage branch of the house, and the defendant did the buying for the firm; that about March 19, 1910, a party came in and requested him to go to Leavenworth and get four boxes of goods and put them in storage. That the bills of lading covered goods the same as those described in the information. These bills were left at the store for the purpose of getting the goods, but he could not recall the name of the person who brought them; that King was sent to Leavenworth to ship the goods into the house according to the instructions of the man who left the bills of lading; and that the goods were shipped into the house and a receipt issued for them.

Defendant testified at length as to the manner in which he had received the other goods shown to have been identified by the special agent of the railway company as having been stolen. That he had bought the cigars, not exactly from Oonnole, but from a party that Oonnole was selling them for, for twelve dollars a thousand. It was shown that these cigars had been sold by the manufacturer to Cohen originally for thirty-one dollars per thousand.

Defendant in his testimony denied that he had ever seen the statement of King, which King had testified he had read over and admitted to be true, at the police station, and denied that he had ever sent anybody to Leavenworth to get any goods. With reference to the character of the goods he handled, defendant said they were all kinds, grocery stocks, cigar stocks, millinery stocks, and even whiskey, “anything,” he said, “we can make a dollar on.” On cross-examination, defendant said King had worked for him off and on for three or four years, but that he had not seen him for about two weeks before the trial. Defendant again denied that he had ever discussed King’s statement with Kemp or acknowledged the same to be true; that Oonnole had represented'himself to the defendant as a scalper engaged in buying and selling all kinds of goods, and all defendant had ever bought from him was two pianos and the cigars, and that he had sold the cigars to Friedman at seventeen dollars a thousand.

Testimony of an indefinite nature was offered on the part of defendant with reference to the custom of warehouse men in Kansas City in storing goods, tending to show that goods were stored in the name of the person bringing them in, that some houses simply marked the boxes with the number of the storage receipt while others placed on the boxes both this number and the customer’s name.

Further testimony was to the effect that while goods were often received by a railroad on bills of lading and stored in the name of the consignee, it was not customary to send such goods out to surrounding towns and ship them back for storage; that in storing goods, warehouse receipts were usually issued, which were surrendered when the goods were taken out of storage.

Five witnesses testified as to defendant’s good character.

The defendant assigns as error the overruling of his motion to quash the information; the admission of, improper evidence; refusing to admit competent evidence; remarks of the prosecuting attorney in his opening statement to the jury; improper comments by the court on the evidence during the trial; criticisms by the court on the conduct of defendant’s counsel during the trial; hostility of the court to the defendant during the trial and in the presence of the jury; giving improper instructions asked by the defendant; improper statements made during the trial by counsel for the State in regard to the defendant; permitting the jury to separate at the noon hour the first day of the trial; because the verdict is not that of a fair and impartial jury and is in violation of the.constitutional rights of the defendant.

I. The information which the defendant alleges is insufficient, omitting the formal parts, is as follows:

“Now comes Virgil Conlding, prosecuting attorney for the State of Missouri, in and for the body of the county of Jackson, and upon his oath informs the court, that Thomas B. Smith, whose Christian name in full is unknown to said prosecuting attorney, late of the county aforesaid, on the 23rd day of March, 1910, at the county of Jackson, State of Missouri, thirty thousand San Felice cigars of the value of fifteen hundred dollars, one case dry goods of the value of six hundred dollars, of the aggregate value of twenty-one hundred dollars, of the goods, chattels and personal property of the Missouri Pacific Railway Company, a corporation, then lately before feloniously stolen, taken and carried away, unlawfully and feloniously did buy and receive, he the said Thomas B. Smith then and there knowing the said goods, chattels and personal property to have been feloniously stolen, taken and carried away as aforesaid; against the peace and dignity of the State.”

In criminal charges of the character here involved it is necessary that the information allege all the essential elements of larceny, because as was said by this court in State v. Fink, 186 Mo. l. c. 58, “the defendant who is charged with receiving the stolen goods has the right to join issue with the State upon that material allegation of the larceny, and show that in fact no larceny was committed.” If, therefore, the essential requisites to properly charge larceny appear in this information, it is not subject to valid objection.

The stolen property alleged to have been received is described as “thirty thousand San Felice cigars, of the value of fifteen hundred dollars, one case of dry goods of the value of six hundred dollars;” this, as was held in State v. Kosky, 191 Mo. 1, is a sufficient description to apprise the defendant as to what property he was charged with having received.

While the essentials requisite to charge iareeny must be pleaded, it is not necessary to allege that the defendant received the goods with the intent to deprive the owner of same (State v. Rich, 245 Mo. l. c. 167); nor is it required that an information, such as is here under consideration, allege that the defendant knew the goods were stolen from any particular person. [State v. Sakowski, 191 Mo. l. c. 647.]

The name of the owner of the property is alleged to be the Missouri-Pacific Railway Company, a corporation. The property stolen was shown to have been in the actual possession of the railway company at the time it was taken; the company, therefore, was the special owner during transit. [State v. Mintz, 189 Mo. l. c. 282; State v. Waghalter, 177 Mo. 676; Storage & Moving Co. v. Transit Co., 120 Mo. App. 414; Chicago & Alton Railroad v. Kansas City-Suburban Belt Railroad, 78 Mo. App. l. c. 259; 6 Cyc. 435.] Under this state of facts, if the stolen property is in the actual possession of a person other than the general owner, the latter still has the constructive possession, and the ownership may properly be alleged and proved either in the special owner having actual possession, or in the general owner having constructive possession. [State v. Lackey, 230 Mo. l. c. 715.]

Tested by the gauge of a charge for larceny, the information is found to contain all the required essentials. We are, therefore, of the opinion that the defendant’s motion to quash was properly overruled.

II. Defendant assigns error in the admission and exclusion of testimony.

Defendant introduced witnesses to establish his good character; the State on cross-examination asked one of these if he had not sought to influence the prose-cation in defendant’s favor. Counsel for defendant objected on the ground' that-the inquiry was prejudicial and asked that the court rebuke the prosecuting attorney and discharge the jury. The court sustained the objection to the question, but refused to rebuke the prosecutor or discharge the jury.

The question was not improper. To show interest or bias, a witness may be asked on cross-examination the state of his mind or the nature of his conduct in regard to the party in whose favor or against whom he is testifying. “In such cross-examination great latitude is allowed, the general rule being that anything tending to show bias on the part of the witness may be drawn out, so that anything that shows friendship towards, or enmity against, the party, or an inclination for or against either party, may' be shown. Inasmuch as the jurors are the sole judges of the credibility of the witness, any matter that will properly assist the jurors in forming a correct judgment from all of the facts ought to be shown in evidence.” [1 Whar. Cr. Ev. (10 Ed.), sec. 488, p. 1011; 40 Cyc. 2489.]

The same rule applies to the cross-examination of witnesses in civil as in criminal cases when it is sought to show bias or prejudice as affecting credibility.

To illustrate, in Czezewzka v. Benton-Bellefontaine Railway, 121 Mo. 201, it is held that the extent to which the temper and disposition of a witness may be shown on cross-examination is largely within the discretion of the trial court. A like rule is to be found in Gordon v. Railroad, 222 Mo. 516, and State v. Steele, 226 Mo. 583.

In State v. Turlington, 102 Mo. 642, it was held competent on cross-examination in a criminal trial to introduce a letter written by the witness to defendant after the offense, tending to show witness’s sympathy and partisanship with defendant. And it may be asked of a witness for defendant on cross-examination if' she did not offer the prosecuting witness money if he would go away and not testify against the defendant. [State v. Hack, 118 Mo. 92.]

The rule in regard to the cross-examination of witnesses to test their credibility is thus stated in Stephen’s Digest of the Law of Evidence, art. 129, p. 185: “When a witness is cross-examined, he may, in addition” to matters testified in chief, “be asked any questions which tend to test his accuracy, veracity or credibility; or to shake his credit, by injuring his character. To this end the relations of the witness to either of the parties, or to the subject-matter in dispute; his interest, motives, way of life, associations, habits, prejudices and physical defects and infirmities,” may be shown if they tend to affect his capacity.

III. There was no evidence of embezzlement as contended by defendant. The act of the check clerk, Wedow, in falsely remarking and reconsigning the goods in question, was the preliminary s^ep the larcenous taking of same.

There was no constructive or actual possession of the goods by Wedow to authorize the assumption that his intention to steal them was conceived only after he had remarked and reconsigned, them. Having no possession, the conclusion is inevitable that the larcenous taking commenced when he went into the car to check out the goods for reshipment. Then, and then only, his possession began and being wrongful in its inception- his act constitutes nothing more than larceny. The subsequent handling of the goods before they were received by the defendant, is tarred with the same crime, thus laying the foundation for the offense charged in the information. The trial court did not err, therefore, in submitting the cause to the jury on the ground that the evidence tended to show that the goods received by defendant had originally been stolen and not embezzled.

IV. The admission of testimony on behalf of the State that defendant had in his possession other articles of stolen property was not error.

Gnilty knowledge is the gravamen of the offense of receiving stolen property and the scienter may be proved by other previous similar acts. [Coleman v. People, 58 N. Y. 555; Copperman v. People, 56 N. Y. 591; People v. McClure, 148 N. Y. 95.] In the case at bar the evidence of other offenses of like character showed a common plan or scheme for the receiving of stolen goods so closely related to the offense in question that proof of the former tended to establish the latter. Under such a state of facts an exception is created to the rule against the admission of evidence of other crimes, so as to render the testimony objected to by defendant admissible; in addition, the other offenses were so mixed and intermingled with that at bar as to render it impossible to give full proof of the one without at the same time showing the commission of the other; under such circumstances evidence of any or all of such offenses is admissible against a defendant on trial for one of them, which is itself but a detail of the general criminal scheme. [Underhill’s Cr. Ev. (2 Ed.), sec. 88. p. 157.] It was held by the Court of Appeals of New York that in a prosecution for receiving stolen property, where young boys had sold hides for a grossly inadequate price to the defendant, other purchases of hides from such boys are admissible, even though the hides bought on other occasions were stolen from different owners than the owner of the hides concerned in the prosecution on trial. [People v. Doty, 175 N. Y. 164.] The ruling of the Supreme Court of this State in State v. Flynn, 124 Mo. 480, has a general bearing to the same effect. On the trial of an indictment for receiving stolen goods knowing them to have been stolen, it is proper for the prosecution to prove acts of receiving stolen goods from the same person other than those described in the indictment in order to show guilty knowledge on the part of the defendant. [Commonwealth v. Johnson, 133 Pa. St. 293; State v. Habib, 18 R. I. 558.] In each of these cases the original larceny was committed by an employee of the persons alleged in the indictments to be the owners of the property.

Evidence of the receiving by the defendant of other stolen property than that charged in the information, is competent and admissible for the purpose of showing the intent of the defendant with reference to receiving the property which he is charged with having illegally received. [Morgan v. State, 31 Tex. Crim. 1; People v. Rando, 3 Par. Cr. Rep. (N. Y.) 335; State v. Crawford, 39 S. C. 343; Devoto v. Commonwealth, 3 Met. (Ky.) 417; Shriedley v. State, 23 Ohio St. 130.]

As a safeguard to prevent the jury being prejudiced or misled by evidence of other offenses, the trial court in the case at bar gave the following instruction:

“The court instructs the jury that the evidence introduced as to other transactions, if. any, is submitted to your consideration for the sole purpose of shedding light (if they have that effect), upon the intent and motive of the defendant in the transaction set out in the information in this case, for which he is now on trial, and for no other purpose.”

In view of the foregoing we are of the opinion that the trial court committed no error in admitting evidence of other offenses.

V. A careful examination of the transcript fails to disclose any error in the conduct of the court or that of the prosecuting attorney to which exceptions were properly saved. The improper remarks made and questions asked witnesses by the counsel for the State in regard to defendant’s conduct and reputation while residing in Atchison, Kansas, were, on objections being made thereto, ordered stricken out and the jury directed to disregard same. The frequent motions made by counsel for defendant, coupled with his objections to testimony, that the court discharge the jury, were, in view of the merited rebukes given the prosecuting attorney, sufficient to authorize the overruling of defendant’s motions and to prevent the jury being misled or prejudiced. Much must necessarily be left to the discretion of the trial .court in such matters and its action should not be disturbed unless manifest prejudice has resulted. [State v. Crow, 107 Mo. l. c. 349.] The court displayed commendable fairness and firmness in keeping overzealous counsel within reasonable bounds, and defendant has no substantial cause of complaint in this regard.

VI. Defendant complains of the giving of instruction numbered one.' It is as follows:

“The court instructs the jury that if you find and believe from the evidence in this case that at the county of Jackson and State of Missouri, at any time within three years before the 5th day of June, 1910, the date of the filing of the information in this case, the defendant, Thos. B. Smith, unlawfully and feloniously did buy and receive thirty thousand San Felice cigars and one case of dry goods, and that the same were then and there the property of the Missouri Pacific Railway Company, a corporation and that the said cigars and dry goods had been then lately before unlawfully and feloniously stolen, taken and carried away from the said Missouri Pacific Railway Company and that the said Thomas B. Smith then and there well knew the said goods and property to have been feloniously stolen, taken and carried away, you will find the defendant guilty.
“And if you believe such property to be of the value of thirty dollars or more, you will assess his punishment at imprisonment in the State penitentiary for not less than two and not more than five years.
“Feloniously, as used in this instruction,'means wickedly, and against the admonition of the law, that is wickedly and unlawfully.”

This instruction should be read in connection with instruction numbered eight and given by the court, which requires the jury to find that some person, other than the defendant, stole, took and carried away the goods described in the information and that defendant bought and received same knowing them to have been stolen. When so read, it is sufficient. [State v. Sakowski, 191 Mo. 635.] The definition of the word “feloniously” at the close of the instruction as “wickedly and against the admonition of the law, that is, wickedly and unlawfully” was incorrect, but since no definition of the word was necessary, the mistake was harmless. [State v. Miller, 159 Mo. l. c. 121; State v. Cantlin, 118 Mo. 100.] This court has held in a number of eases that the use of the word “feloniously” is entirely un-. necessary in the instructions when they point out as they must of necessity do, if correct, the facts which constitute the felony charged. In State v. Scott, 109 Mo. l. c. 232, it was said: “So, in the instruction complained of here, the word ‘feloniously’ scarcely has a definable meaning, as used, and could have been altogether omitted without affecting, in the least, the correctness and sufficiency of the instruction.” It is not necessary for instructions to use the identical words of a statute or contain the particularity of a criminal charge. [State v. Tobie, 141 Mo. 547.] All that is necessary is that they require the jury in clear, unmistakable terms to find the facts as charged in the indictment or information and when so found a conviction of a felony follows as a legal conclusion. [State v. Cronin, 189 Mo. l. c. 670.]

VII. ' The refusal of the trial court to give instruction numbered sixteen asked by defendant is assigned .as error. It is as follows:

“Although the jury may believe from the evidence that the defendant made statements to various persons concerning’ the manner or circumstances attending his possession of the goods mentioned in evidence, still if such statements were made casually, in the course of ordinary conversation, they should be considered with great caution because of the liability of witnesses to forget or misunderstand what was really said or intended. ’ ’

It is true that when verbal statements of a defendant are casually made in the course of ordinary conversation, and form part of the evidence, and it appears that such statements were made on occasions more or less remote from the time when they were disclosed, a cautionary instruction, such as is requested by defendant, should be given as a corollary to the instruction upon the weight to be attached to such verbal statements. This rule, however, is not uniformly followed and the present case is one of the exceptions.

The instruction numbered sixteen was not warranted by the evidence; defendant’s statements “concerning the manner or circumstances attending his possession of the goods mentioned in evidence,” were not made “casually” or “in the course of ordinary conversation;” on the contrary, they were made at various times after a portion of the stolen goods had been found in defendant’s possession, and duly identified in his presence, and when the circumstances and requirements of the very occasions themselves d.emanded from Mm a definite explanation as to the manner in which, he had obtamed them. One of these occasions was at the time of the service of the search warrant, when defendant’s premises were invaded by an officer of the law and the agent of the owner of the stolen goods; another was when he appeared at the police station m connection with the investigation of the theft of the property which had been traced to' his possession; and another was two days after the service of the search warrant, when Kemp, the special agent of the owner of the stolen goods, again visited the defendant’s place of business for the purpose of recovering’ certain suits of clothing which defendant and some of Ms clerks had taken for their personal use out of a stolen shipment, and when defendant actually restored the same to Kemp, as he himself admitted on the witness stand. More than that, these statements on the part of defendant w'ere made to persons who had a peculiar interest in the stolen goods and a right to know the manner and circumstances under which he had received them. One was the agent of the railway company from which the goods had been stolen; another was an officer of the law, charged with tlie service of the search warrant; and another was an inspector of detectives charged with the duty of apprehending the thieves and bringing them to account. Each corroborated the other that defendant had actually made the statements in evidence, and that such statements were voluntarily made by him, without threat, promise or offer of reward, and before he was under arrest. And above all, the truth of the statements, as detailed to such witnesses, was abundantly corroborated by evidence otherwise adduced.

It is also important to note in this connection that the jury was duly cautioned in other instructions with respect to weighing the evidence; this must be read in connection with the instruction covering the verbal statements of defendant, and that “the facts and circumstances in evidence should be consistent with each other and with the guilt of the defendant and inconsistent with any reasonable theory of his innocence;” and that in determining the weight and value to be attached to the testimony of a witness, they should take into consideration, among other things, “the opportunity the witness had to observe and be informed as to the matters respecting which such witness gives testimony, and the inclination of the witness to speak truthfully or otherwise as to matters within his knowledge.” And they were directed “to apply the proven facts of the case to the law as given and to find their verdict accordingly, and not otherwise.” They were also duly cautioned with respect to weighing the evidence and applying it to the law as laid down by the court. Under such directions we are unable to see how the defendant could have been injured by the refusal of the cautionary instruction. The question of “the liability of witnesses to forget or misunderstand what was really said or intended” by defendant was a matter for argument before the jury, rather than a subject for direction by the court.

Gantt, J., speaking for the court in State v. Henderson, 186 Mo. l. c. 493, in regard to the giving of cautionary instructions, after an extensive review of the authorities, reluctantly assents to the giving of such an instruction in that case, but in connection therewith makes these general deductions:

“The functions of the judge and those of the jury are clearly defined in our system of law. It is for the jury to weigh the evidence and it is the province of the court to pass upon its competency.
“Whenever the court undertakes to tell a jury what weight should be given to any evidence to that extent it invades the lines marked out for the jury.
“The better opinion, upon authority and reason, would seem to be that it is not necessary to give a cautionary instruction against the statements of a defendant. .
“But we have often ruled that, while an instruction may be called for in some cases, and it may even be error to fail to give it, it does not necessarily follow it must be given in every case. Whether such a cautionary instruction should be given must depend on the facts developed in the case.”

The present case is clearly within the exception to the rule announced in the Henderson case, and the court did not err in refusing to give the cautionary instruction asked by the defendant.

Finding no prejudicial error in the record, the judgment is affirmed, and the sentence imposed by the trial court is ordered to be executed.

Brown, P. J., and Faris, J., concur.


source: Caselaw Access Project

author: WILLIAMS, C.

license: Public Domain

text:
    THE STATE v. THOMAS COX, Appellant.
    Division Two,
    May 20, 1913.
    1. EVIDENCE: Reviewed on Appeal. The evidence held sufficient to support a conviction for assault with intent to rob.
    2. ASSAULT WITH INTENT TO ROB: Evidence: Of Another Crime Admitted as Res Gestae. Upon a trial for assault with intent-to rob a street car conductor, the conductor testified that he saw defendant put his hand in the pocket of a passenger, whereupon he (the conductor) asked if anybody had lost anything, and then defendant struck him in the face and tried to pull his money changer from his coat. Held, that the evidence of defendant’s attempt upon the passenger was admissible as part of the 'res gestae.

    Appeal from St. Louis City Circuit Court. — Hon. Leo Rassieur, Judge.
    Affirmed.

      Fish & Fish for appellant.

      John T. Barker, Attorney-General, and William T. Fitch, Assistant Attorney-General, for the- State.
   WILLIAMS, C.

Under an information charging him with an’ assault with intent to rob, defendant was tried and convicted in the circuit court of the city of St. Louis, and his punishment assessed at two years in the penitentiary.

The evidence for the State tended to show that on October 7, 1911, about 5 :20 p. m., defendant boarded a street car near Sixth street and Franklin avenue, in St. Louis. The car was of the type known as the “pay-as-you-enter,” and was in charge of Harvey L. Fortner, as conductor, and he was standing at the time just inside the car, near a small opening or window through which the passengers would reach and drop their fare into a receptacle therefor inside the car.

The conductor had a “money changer,” containing about eleven dollars, fastened in front on the outside of his clothing. This was a metal contrivance containing change for the use of the conductor in making change for the passengers, so that they could deposit the proper fare, The defendant did not offer to pay his fare, but took a standing position against the back rail of the rear platform. On the evening in question the car was somewhat crowded, and eight or ten persons were standing on the rear platform. About the time defendant boarded the car several other persons got on, among them being a lady and an old man. As the lady paid her fare, she pointed the defendant out to the conductor, and said that he, the defendant, had tried to grab her purse. The next passenger to pay his fare was the said old man, and while the conductor, as the latter testifies, was in the act of changing a one-dollar bill for the old man, he saw defendant put his hand in the old man’s pocket. Just after this the conductor said, “Has anybody lost anything?” and immediately thereafter the defendant, who had moved np closer to the position of the conductor, stepped towards the window in front of the conductor, reached through said window and struck the conductor a blow on the face, at the same time grabbing and trying'to wrest the money changer from the conductor. The blow caused the conductor to fall backwards, and when he got up his nose was bleeding. The money changer was still fastened to his clothing, but was partially torn loose from its fastenings. All of the above occurred in a very short period of time, and while the car traveled less than the length of one city block. Immediately after this occurrence the defendant jumped off the car, whereupon some of the passengers on the back platform exclaimed “go back and get him.” At these remarks, the defendant, with his hand in the neighborhood of his hip pocket, and in a threatening attitude, told the passengers to “get him” if they thought they could. The car stopped after going a short distance, and the conductor and some of the passengers went back towards Sixth street to locate the defendant, and found him in a saloon at the corner of Sixth and Franklin avenue. A policeman was called, and defendant was placed under arrest.

The above facts were testified to by the conductor, who was corroborated by three witnesses who were passengers on the car at the time and in a position to see what took place.

The defendant did not take the witness stand, but a witness named King testified in defendant’s behalf that he was a passenger and on the back platform of the car at the time, and that the conductor accused defendant of being a pickpocket, whereupon the defendant said “that is an insult,” and struck the conductor with his right hand. The witness further testified that he did not see the defendant grab for the conductor’s money changer at any time.

I. Appellant first complains that the verdict is against the law and the evidence. Upon a careful review of the evidence, we find every element of the offense charged to have been amply proven. In fact, it is difficult to see how the' jury could have arrived at any other verdict.

II. Complaint is made that the court erred in admitting “illegal” evidence offered by the State. The only evidence to which appellant made proper objection and saved exception was the testimony of the conductor that he saw defendant with his hand in the pocket of an old man who was having a dollar bill changed preparatory to paying his fare. The conductor testified that this occurred just before he (the 'conductor) asked if anybody had missed anything, and that immediately after making such inquiry the defendant struck him, grabbed his money changer and jerked at it twice in an effort to pull it loose from its fastenings. The correct rule concerning the admissibility of evidence of this character is stated in 4 Elliott on Evidence, sec. 3137, as follows:

“If while the accused was engaged in the commission of the alleged robbery he also committed another offense, the whole transaction is usually admissible as a part of the res gestae, notwithstanding the fact that the evidence also shows the commission of such other offense.”

The admission of the testimony complained of did not constitute error.

The instructions given fully and fairly declared the law applicable to the case, and are free from error. The judgment is affirmed.

Roy, C., concurs.

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

All the judges concur.


author: BROWN, P. J.

text:
    THE STATE v. JAMES F. REED, Appellant.
    Division Two,
    May 20, 1913.
    1. GOOD REPUTATION: Impeachment by Specific Acts. Where deceased became a witness through his dying declaration, evidence cannot be received of his reputation for peace and quietude until it has been directly attacked; and testimony of defendant that deceased was, at the time of the stabbing, engaged in an attempt to rob him, was not such an attack upon the reputation of deceased as to justify the admission of testimony, offered by the State in rebuttal, to the effect that deceased bore a good reputation as a quiet, peaceable, law-abiding citizen.
    2. -: Easy to Prove. Courts take judicial knowledge of the fact that it is much less difficult to prove a good reputation for a witness or litigant than to impeach his reputation, because evidence of bad reputation is usually founded on acts of wrongdoing or moral turpitude, and is of an affirmative character, while evidence of good reputation may be, and usually is, of a negative character, and rests upon the absence of any derogatory discussion of his conduct.
    3. --: Presumption. Where no evidence has been offered that a witness’s or a party’s reputation is bad, it ought to be presumed to be good, without proof.
    Appeal from Jackson Criminal Court. — Hon. Ralph ' S. Latshaw, Judge.
    Reversed and remanded,

      Frank M. Lo%oe, for appellant.
    It was error to permit State to bolster up tbe character of deceased, when no attack had been made upon his character. State v. Potter,'13 Kan. 316; State v. Thomas, 78 Mo. 343; State v. Barrett, 240 Mo. 175; State v. Nelson, 166 Mo. 203; State v. Jeger, 66 Mo. 180; State v. Jones, 191 Mo. 662; People v. Gallagher, 78 N. T. Supp. 67; State v. Grant, 79 Mo. 134. “It is clearly error to permit the introduction of evidence anticipatory of an attack on the character of a witness.” State v. Patrick, 107 Mo. 155. “It is error to corroborate a witness before the witness has been attacked or impeached.” State v. Creson, 38 Mo. 372. “Evidence of the bad character of defendant cannot be offered unless the character of defendant has been put in issue by evidence directly bearing upon that point. ’ ’ Grocer Co. v. Taggart, 78 Mo. App. 169; Crabtree v. Yan Hoozier, 53 Mo. App. 411; State v. Grant, 144 Mo. 56; State v. Fogg, 206 Mo. 716; State v. Kelleher, 201 Mo. 638; 1 Wharton’s Crim. Evid. (10 Ed.), sec. 491; Fulkerson v. Murdock, 53 Mo. App. 153; Ben v. State, 37 Ala. 103; Chase v. State, 46 Miss. 707; Pound v. State, 43 Ga.-128; State v. Thomas, 78 Mo. 343; State v. Jeger, 66 Mo. 180.

      John T. Barlcer, Attorney-General, and Ernest A. Green, Assistant Attorney-General, for the State.
    (1) Under the third ground of his motion for a new trial, defendant contends that the court erred “in admitting testimony over the objection of defendant.” The only ruling of the court in this regard to which an exception was saved is found in the bill of exceptions, where the following occurred:' “Q. I will get you to tell the jury whether or not you are acquainted with his general reputation for being a quiet, peaceable and law-abiding citizen, or otherwise?” Mr. Lowe: “We object to that.” The Court: “Objection sustained, for the reason it hasn’t been put in issue in any way. Mr. Curtin: “This defendant testified that this dead man tried to rob him, and in view of the statement of Mr. Lowe that he was known as ‘Horrible Red,’ they have tried to assault his character, I think the State has a right to show what his reputation was.” Mr. Lowe: “Nobody has attacked this man’s character.” Mr. Curtin: “I don’t know how you can attack a man’s character in a worse way than to show that he was a highwayman.” The Court: “I believe I will overrule the objection.” Mr. Lowe: “Exception.” (2) The court’s remarks above quoted are in full accord with the decisions of this and the other appellate courts in this country. State v. Feeley, 194 Mo. 317; Thrawley v. State, 153 Ind. 375; Hussey v. State, 87 Ala. 121; Russell v. State, 11 Tex. App. 288; Sims v. State, 38 Tex. Crim. 637; State v. Vaughan, 22 Nev. 285; Pettis v. State, 81 S. W. 312; State v. Lejeune, 40 So. (La.) 632; People v. Gallagher, 75 App. Div. 39, 78 N. Y. Supp. 5.
   BROWN, P. J.

Convicted of murder in the second degree in the criminal court of Jackson county, defendant appeals from a judgment of that court fixing his punishment at ten years in the penitentiary.

Defendant Reed, a laboring man, dropped into Kansas City on June 27, 1912, apparently for the purpose of spending a small surplus which he had earned in railroad construction work at another place. He spent the following day about the saloons of Fifth street in Kansas City, where he met Clyde Holland, the deceased.

The testimony of W. F. Hall, the chief witness for the State, is that about the hour of eight p. m. he (Hall) was standing in front of Pendergast’s saloon, when defendant, with deceased and another man, a stranger to the witness, walked out of the saloon arm in arm. Defendant was walking on the right side of deceased, and the stranger on the left. The deceased’s hands were down by his side, and neither of the three were saying a word. When they were about the center of the sidewalk in front of the said saloon defendant stabbed deceased in the stomach with a pocket knife, inflicting a mortal wound from which death ensued four days later. After the stabbing defendant walked one block and then ran, pursued by several individuals who caused his arrest. When arrested defendant had in his pocket the bloody knife with which he stabbed deceased. He told the officer who made the arrest that he had cnt a man named “Terrible Bill” or “Horrible Bill” at Pendergast’s saloon.

The stranger who was with defendant and deceased when the stabbing occurred ran to the emergency hospital, procured a stretcher, and helped carry the deceased to the hospital for treatment. This stranger was not called as a witness by either side. He and Hall were the only eye-witnesses to the tragedy. Witness Hall in his preliminary examination testified that he was not sure that either the defendant or the stranger had hold of the arms of deceased when the stabbing took place, but on the final trial he testified that their arms were locked, thus justifying the impression that the memory of said witness had improved as to details by the lapse of time.

When taken to the hospital the inside of deceased’s right hand was found to be severely cut, apparently with a knife. Eva Holland, a sister of deceased, testified that on the day he died deceased told her he could not live and made the following explanation of the killing:

“ ‘A man by the name of Jim Reed stabbed me.’ I asked him, had they had any trouble or quarrel, and he said, ‘None whatever-.-’ I said,.‘Where were you when this happened?’ He said, ‘At Pendergast’s saloon.’ He said, ‘This man came up and seemed quarrelsome, and he walked away from him,’ he said; ‘he followed him and commenced to stab him before I could move.’ He said, ‘I grabbed the knife to protect myself and nearly severed my left hand.’ ”

Defendant testified in his own behalf that he saw deceased during the day of the killing ;• that about noon of said day deceased tried to take his money and watch away from him, but was interrupted or seared away by some other parties coming along the street. Defendant says that he was still loitering around the saloons or in front of them until shortly after dark, when deceased and another man grabbed him and tried to rnn their hands in his pockets to get his money, whereupon defendant drew his knife, opened it quickly and struck deceased.' That he stabbed deceased because the latter was getting his money and would not let him alone.

James McLaughlin, a witness for defendant, testified that he was in Pendergast’s saloon during the twenty minutes immediately preceding the stabbing of deceased, and that the defendant and Holland were not in said saloon during that period.

In rebuttal, over the objections and exceptions of defendant, the State called two witnesses who testified that they were acquainted with Holland, the deceased, and that said deceased bore a good reputation as a quiet, peaceable and law-abiding citizen.

For reversal defendant relies chiefly upon the alleged error of the trial court in admitting evidence of the good reputation of deceased, whose reputation defendant contends had not been attacked.

The Attorney-General contends that the evidence of defendant to the effect that deceased was, at the time of the stabbing, engaged in an attempt to' rob defendant was such an attack upon the reputation of said deceased as to justify the admission of evidence of his good reputation, citing: State v. Feeley, 194 Mo. l. c. 317; Thrawley v. State, 153 Ind. 375; Hussey v. State, 87 Ala. 121; Hussell v. State, 11 Tex. App. 288; Sims v. State, 38 Tex. Crim. 637; State v. Vaughan, 22 Nev. 285; Pettis v. State, 47 Tex. Crim. 66; State v. Lejeune, 116 La. 193; and People v. Gallagher, 75 App. Div. (N. Y.) 39, 78 N. Y. Supp. 5. Defendant contends that the evidence of the attempted robbery was not such an attack upon the reputation of deceased as to justify the admission of the evidence complained of, citing: State v. Potter, 13 Kan. l. c. 416, and cases cited; State v. Thomas, 78 Mo. l. c. 343; State v. Barrett, 240 Mo. l. c. 175; State v. Nelson, 166 Mo. l. c. 203; State v. Jaeger, 66 Mo. l. c. 180; State v. Jones, 191 Mo. l. c. 662; and People v. Gallagher, 78 N. Y. Supp. l. c. 7.

This precise issue has not heretofore been before the appellate courts of this State. In the case of State v. Feeley, 194 Mo. 300, defendant was permitted to prove that the man whom he killed bore the reputation of being a quarrelsome and dangerous man when drinking; and that evidence was held to warrant the admission of evidence in rebuttal that deceased was a peaceable and law-abiding citizen. The Feeley case is unlike the one at bar in a very essential particular. In that case evidence was introduced by defendant for the direct and sole purpose of showing a bad reputation on the part of deceased (under certain conditions), while here the evidence only tends to show a specific criminal act on the part of deceased, and was introduced for the collateral purpose of mitigating or excusing the act of defendant in killing deceased.

The point at issue is not free from difficulty. The contentions- of both the State and defendant are supported by respectable authority, and at first impression we felt like we would be glad to adopt the views of the learned trial judge, but, upon more careful reflection, we fear that, to do so, we would be making a precedent which would open up a Pandora’s box of collateral issues to be let into every case, and thereby confuse juries even more extensively than under our present system.

There are always many collateral issues that resourceful attorneys could inject into all kinds of suits and which rilight throw some indirect light upon the real issue tendered by the parties. For instance, in a case where one man sues another for debt, if the plaintiff were permitted to prove that the defendant bears the reputation of refusing to pay his just debts, that evidence would work very advantageously in favor of plaintiff; or, if, in the same kind of a case, the defendant were allowed to prove that the plaintiff bears the reputation of a contentious individual habitually suing people upon unjust or illegal claims, the effect of such evidence would likely be disastrous to plaintiff.

While evidence of the character mentioned would apparently tend to establish or disprove specific issues, it would in reality tend to prevent just verdicts by clouding the real issues with purely collateral issues which would draw the minds of the triers of fact away from the direct, legal and competent evidence in the case which they should consider most diligently in arriving at their verdicts.

It is undoubtedly true that a law-abiding citizen is much less likely to commit, or attempt to'commit, crime than a man whose conscience is seared by the commission of many crimes; yet, it is likewise true that many very grave crimes are committed by people who have theretofore borne a good reputation, so that evidence of a prior good reputation is not a very potent shield against a charge of having committed á specific crime, though a jury might think differently where the evidence is conflicting and the issue arose collaterally. We take judicial knowledge of the fact that it is a great deal less difficult to prove a good reputation on the part of a witness or litigant-than to impeach his reputation, for the simple reason that evidence of bad reputation is usually founded upon acts of wrong-doing or moral turpitude, and is of áñ affirmative character, while evidence of good reputation may be, and usually is, of a negative character, simply showing that the neighbors of a party whose reputation is! in issue have not heard anything said derogatory of his conduct. [40 Cyc. 2648.]

Coming back to the concrete facts of this case, dhe evidence of Holland, the man whom defendant killed, went to the jury through his dying declarations as' narrated by his sister in the State’s evidence in chief. That fact alone made it competent for defendant to attack deceased’s reputation, if he had any general evidence that such reputation was had.

"To affect their credibility it is competent to show feelings of hostility on the part of the declarant toward the accused, to show the condition of his mind subsequent to the declarations ... to prove his bad character, and to prove contradictory and conflicting statements.” [1 Wharton’s Criminal Evidence (10 Ed.), sec. 298, p. 580.]

As no such evidence was offered, why cannot we presume,, without proof, that deceased’s reputation was good?

It is certainly as reasonable for courts and juries to presume that the deceased was a law-abiding person, as to indulge the presumption that the defendant on trial is innocent, notwithstanding a specific charge of crime has been preferred against him by a grand jury or sworn prosecuting officer. The law indulges the presumption of honesty and a willingness on the part of every citizen to obey the law until the contrary is established by convincing proof. [Long v. McDow, 87 Mo. 197; Maysville v. Truex, 235 Mo. 619.]

The admission of the evidence touching Holland’s good reputation in this case violates a well-known and highly respected rule of law — that evidence cannot be received to bolster up the testimony of a witness whose reputation has not been directly attacked. [State v. Fogg, 206 Mo. l. c. 716.] (As we have seen, deceased became a witness through his dying declaration.) No evidence raising a collateral issue of doubtful propriety should be admitted which violates any well-known rule of law.

The dying declarations of deceased were in conflict with the evidence of the State’s chief witness, Hall, and the fact that deceased’s hand was cut further tended to discredit Hall, who claimed to have seen deceased murdered without any struggle or demonstration on his part. Being forced to rely upon this conflicting evidence, the prosecuting attorney evidently thought the best plan to secure a conviction was to bolster up the dying declarations of Holland and rely upon those declarations for his conviction. In admitting that testimony the court committed an error prejudicial to defendant.

After carefully considering the authorities cited and the arguments of the parties, we have arrived at the conclusion that the law of this case was correctly announced by the late United States Supreme Judge Brewer, while a member of the Supreme Court of Kansas, in the following language:

“Appellant insists that the court erred in allowing the State to introduce evidence of the character of the deceased as a quiet and peaceable man. It appears that the deceased was killed in an affray — that this was the second quarrel upon the same afternoon between the deceased and defendant, others participating. ... On the trial and before closing their case the prosecution was permitted over objection to ask witnesses who had testified that they knew the deceased, this question: ‘State if you knew his general reputation for being a peaceable, quiet and law-abiding citizen.’ And the witnesses testified that he was a peaceable, quiet and law-abiding man. No attack was' made by defendant at any time during the trial on the character of the deceased, and no attempt to show that he was a quarrelsome or turbulent man. ... If the defendant may show that the deceased was a known quarrelsome, dangerous man, why may not the state show that he was a known peaceable, quiet citizen? The argument is not good. The books are full of parallel cases. The accused may in some cases show his own good character. The State can never in the first' instance show his bad character. A party can never offer evidence to support a witness’s credibility until it is attacked. The reasons for these rules are obvious. Such testimony tends to distract the minds of the jury from the principal question, and should only be' admitted when absolutely essential to the discovery of the truth. Again, the law presumes that a witness is honest, that a defendant has a good character, and that a party killed was a quiet and peaceable citizen, except so far as the contrary appears from the testimony in the case; and this presumption renders it unnecessary to offer any evidence in support thereof.” [State v. Potter, 13 Kan. l. c. 422.]

In 21 Cyc. 907, the rule is announced as follows: "Ordinarily the character or reputation of the deceased is not involved in the issue of murder and proof relative thereto is generally inadmissible.”

For the error of the trial court in admitting evidence of the good reputation of Holland (the deceased), when such reputation had not been placed directly in issue by defendant, we reverse the judgment and remand the cause for new trial.

Walker and Faris, JJ., concur.