author: GANTT, J.

text:
    THE STATE v. TEMPLE, Appellant.
    (No. 2.)
    Division Two,
    March 6, 1906.
    1. INFORMATION: Verification. It is not necessary that an information he based upon the actual knowledge of the prosecuting attorney, but it is only required to be verified upon his information and belief.
    2. -: -: Waiver. When defendant files no motion to quash the information, he waives the question of verification.
    3. JURY: Sworn to Try Case. Where the record entry, after naming the twelve jurors, proceeds: “twelve good, lawful men, of the body of the county, who are duly tried, impaneled and sworn to try the cause,” etc., it cannot be said that the jury was not sworn to try the ease. It is not necessary that the oath as administered should be entered of record.
    4. DEFENDANT’S PRESENCE AT TRIAL: Presumption. When the record shows that defendant was present at the commencement of the trial, it will be presumed, in the absence of evidence to the contrary, that he was present during the whole trial, and at the time the verdict was received.
    6. HANDCUFFING PRISONER. The court did not err In permitting defendant to be handcuffed while being conducted from the jail to the courthouse and back, especially since it appears from the sheriff’s affidavit that defendant was a dangerous and deperate man and that he had broken jail on two other occasions.
    6. ASSAULT WITH INTENT TO KILL: Information. Information for assault with intent to kill held, sufficient.
    7. INSTRUCTION: Presumption of Innocence: Reasonable Doubt. An instruction on presumption of innocence and reasonable doubt held not improper.
    8. CONTINUANCE: Absent Witness. Where there is no probability that, if the absent witness had appeared and testified as indicated in the affidavit, it would have had any effect on the result of the trial, the trial court commits no error in overruling an application for a continuance based on the absence of such witness.
    Appeal from Buchanan Criminal Court. — Ro». B. J. ■ Casteel, Judge.
    Affirmed.

      Houston & Buckner and Jno. C. Moore for appellant.
    It was error to overrule the application of defendant for a continuance because of the absence of material witnesses and to force the defendant to trial on the same day that the information was filed against him. Miller v. U. S., 8 Olda. 315; Mopes v. State, 14 Tex. App. 129; State v. Hagan, 22 Kan. 490'; Salsbury v. Com., 79 Ky. 425; State v. Lewis, 1 Bay (S. C.) 1; State v. Pox, 79 Mo. 109; State v. Painter, 40 Iowa 298.

      'Herbert 8. Hadley, Attorney-General, and Hush C. Lake, Assistant Attorney-General, for the State.
    The question of granting a continuance is lodged in the sound discretion of the. trial court, and unless there is a clear abuse of that discretion, this court will not interfere. State v. Lewis, 181 Mo. 255.
   GANTT, J.

This is a prosecution begun by tbe prosecuting attorney of Buchgnan county, Missouri, by filing an information in the criminal court of tbat county, charging tbat defendant unlawfully, feloniously, on purpose, and of bis malice aforethought, made an assault and shot and struck William P. Gibson, with a certain revolver loaded with gunpowder and leaden balls, on tbe 14th day of May, 1904.

Tbe defendant was duly arraigned and entered bis plea of not guilty. On tbe 4th day of August, 1904, be made an application for a continuance, which was beard and overruled, and thereupon be made an application for a change of venue, which was denied on the ground tbat due notice bad not been given to tbe prosecuting attorney. A jury was impaneled to try tbe case, and after bearing tbe evidence, found tbe defendant guilty, and assessed bis punishment at ten years in the penitentiary. In due time tbe defendant filed bis motions for new trial and in arrest of judgment, which were considered by tbe court and overruled. On tbe 18th day of August, the defendant was sentenced in accordance with tbe verdict, from which sentence and judgment, tbe defendant has appealed to this court. There is practically no controversy as to tbe evidence in the case.

Tbe testimony discloses tbe following facts: On tbe 14th day of May, 1904, in tbe afternoon, a man by tbe name of Wilkerson called upon Gibson, who was a police sergeant in tbe city of St. Joseph, to come to a livery barn with him and see whether or not a team in tbe barn, and which bad been placed there by tbe defendant, answered tbe description of a team which bad advertised as having been stolen at Savannah, Missouri, and of which tbe St. Joseph police officers bad a. description. In company with Wilkerson, tbe prosecuting witness, Gibson, went to a saloon in tbe neighborhood of tbe barn and asked tbe defendant, Temple, to show him tbe team, explaining to Temple tbat be, Gibson, was a police officer. Temple accompanied them to the barn, and on the way, at Wilkerson’s request, officer Grable joined them, Defendant Temple stepped into the stall of one of the horses and was engaged in untying it, when Gibson remarked, “Why this is not the team,” and Temple, who was slow in backing out the horse, was addressed by Wilkerson, who said, “It takes you a long time to untie those horses; why don’t you get those horses out; it takes you a hell of a long time to untie those horses; why don’t you bring them out of there. ’ ’ At about that time Wilkerson saw the defendant draw his “gun” (which was a 44 calibre self-acting revolver) and throwing his arm over the neck of the horse, which was between the defendant and Gibson, Temple fired the revolver, the ball striking Gibson in the face, and so close was the revolver to Gibson that the powder burned his face.

The defendant then turned his revolver upon officer Grable, and the officer states in response to the question (p. 12, transcript of the testimony):

“Q. What did you do ? A. Well, just as soon as he shot Gibson, he throwed the gun right in my face, and I was standing like this, with my hands in my pockets, and just as he drawed it in my face I clinched it. Q. Is this the gun that was used there? A. Yes, sir, this is the gun. Now, as he drawed it I caught it like that; I grabbed it just in that shape and clinched it with my thumb behind the hammer, and then holding it in this way, and then several times he would wrench it around and take hold with both hands and try to pull it off, but I clinched it here, and the old Nick himself could not pull it off.”

With the help of bystanders, Temple was finally subdued. The testimony shows that no charge was made against Temple. The request was made that he produce for inspection the horses he had for sale, and while in the pretended act of complying with Gibson’s request, he opened fire, shot Gibson and attempted to shoot officer Grable. No testimony was offered by the defense.

The facts in the case upon which this appeal is prosecuted will be noted in connection with the several propositions advanced by the counsel for the defendant to secure a reversal of the judgment.

I. The information is assailed because it was-verified solely on the information and belief of the prosecuting attorney, and does not purport to be based upon his actual knowledge. Our statute, sections 2477 and 2479, Revised Statutes 1899, permits the verification of an information by the prosecuting attorney upon his information and belief, and the cases cited, from other jurisdictions, are' not controlling authority on this point. Moreover, the information in this case was not challenged by motion to quash, and the defendant waived this point by not making his objection to the informaon that ground, prior to the trial of the case. [State v. Brown, 181 Mo. 192, l. c. 226.]

II. It is objected that the record does not affirmatively show that the jury was sworn to try the case. This exception is based upon a misapprehension of what the record discloses. The entry of the record on this point is as follows: after naming the twelve jurors by name, it proceeds, “twelve good, lawful men of the body of the county, who are duly tried, impaneled and sworn to try the cause,” etc. This form was held sufficient in State v. Schoenwald, 31 Mo. 159.

In the case just cited, Judge Scott, speaking for this court, said: “The books state the form of the oath to be administered in criminal trials. But it does not appear that the oath as administered should be entered on record.....And as the approved forms of entries in capital cases do not require that the oath should be formally entered of record, we consider that on the record as made out, there is no: error.” This assignment of error must be considered untenable.

III. There is no merit in the point made that the record does not show the defendant present during the trial and at the time the verdict was received. The whole trial occurred on the 4th day of August, 1904, the record of that day’s proceedings shows that the defendant was present and arraigned in open court and entered his plea of not guilty, and that his motions for continuance and change of venue were taken up and overruled, and that the prosecuting attorney and the defendant made their challenges, and thereupon the jury as selected were duly sworn, and on the same day the jury returned their verdict in the cause. It is unquestionably true that a defendant in a felony case must be present at every stage of the trial. But by section 2610, Revised Statutes 1899, it is provided ‘1 that when the record in the appellate court shows that the defendant was present at the commencement or any other stage of the trial, it shall be presumed, in the absence of all evidence in the record to the contrary, that he was present during the whole trial.” Section 2610, supra, was designed and has the effect to change the. burden of proof as to the presence of the defendant at every stage of the trial. The decisions of this court prior to its enactment and the adjudications of the various other courts in this country, in the absence of such a statute, cannot control. The facts in this record indicate the wisdom of the statute. It will be observed thát’the defendant not only does not claim that as a matter of fact he was absent when the jury returned their verdict, but in his own affidavit in support of his motions for new trial, he states that at the convening of the afternoon session on the 4th day of August, 1904, he was brought into the court room for further proceedings in the custody of two officers who were guarding' him. It was the purpose of the statute to avoid granting of new trials and reversal of judgments in criminal cases simply because by the inattention of the clerk of the court, in writing the record of criminal cases, the presence of the defendant at each stage of the trial was not noted on the record. The statute makes it the imperative duty of the several judges to superintend the making up of the records in their courts, and the prosecuting attorneys should see to it that the entries in criminal proceedings should recite the presence of the defendant at the various stages of the trial and avoid appeals upon such grounds as this. But because this was so often neglected, and judgments had been reversed by this court for the failure of the record to affirmatively show the presence of the defendant, this statute was enacted.

As nothing to the contrary appears in this record, and as already seen, the record does show the defendant was present at the impaneling of the jury, the presumption must be indulged that he was present when the verdict was received. [State v. Barrington, not yet reported.]

IV. It is assigned as error that the court erred in permitting the defendant to be manacled and shackled in the presence of the jury, and for this reason a new trial should be granted. The facts upon which this assignment of error is predicated appear from the affidavit filed by the defendant and others in his behalf, as well as those filed by the sheriff and his deputies, and are as follows: Upon the convening of the court at the afternoon session on the day on which defendant was tried, the defendant was brought to the court room, with handcuffs on himi, which were removed by the officer before the cause was resumed, and at the noon hour, when the recess for dinner was taken, the officers placed the handcuffs upon him to remove him to the jail, and this was done in the presence of at least some of the jurors who were trying the case. As a reason for securing the prisoner in this manner, the sheriff makes affidavit that at the time and prior to that date he had received information to the effect that the defendant was a desperate criminal; that he had broken jail at Pond Creek, Oklahoma, on two different occasions when confined for crimes; that on one of these occasions, the defendant, as the sheriff was informed, when in the court room, drew two revolvers, which had been secretly supplied him, and covered the officers with the same, backed out of the court room, mounted a horse in waiting outside and made his escape; that the defendant had told one of the jailors that he had once broken jail by the use of a false pistol, which he had made out of tin, and by means of which he intimidated his jailor and made his escape; that these reports having reached the sheriff, caused him to caution his deputies to be very careful with defendant; that he, the sheriff, had been present often during the trial of the defendant, and the defendant had never been handcuffed during the trial. The deputy sheriff, Frank Johnson, made affidavit that he had charge of the defendant; that in taking prisoners to and from the jail to the court room, it was customary to handcuff all male prisoners; that the jail is separate and apart from the court "house, and is reached by traversing some fifty feet of Fifth street, one of the main thoroughfares of the city of St. Joseph; and that it is necessary to pass through dark, crowded corridors of the court house and up a stairway, in all covering a distance of over 200 feet; as in all other cases, the defendant was freed from his handcuffs when seated in the court room, and the handcuffs replaced when the defendant was taken and removed from the court room after adjournment of the court; that defendant was reported to be a dangerous criminal, and the sheriff was advised that the defendant had made Ms escape from the court room wMle on trial at Pond Creek, Oklahoma; that at the said August term, the defendant was on trial for an assault with an intent to kill two public officers of the city, and was also held on the charge of stealing two horses; that the defendant was a magnificent specimen of physical manhood, of vicious temperament, and on trial for a vicious assault; that in spite of his knowledge of these facts affiant endeavored in every way possible to handle and safely keep the defendant in an unobtrusive way and to do nothing indicative of any unusual care or watchfulness on affiant’s part, and that there was nothing out of the ordinary in guarding a male prisoner. In State v. Kring, 64 Mo. 591, Judge Napton, speaking for this court, in reviewing the judgment of the St. Louis Court of Appeals in the same case, 1 Mo. App. 438, said: “The English authorities to sustain the conclusion of the Court of Appeals are referred to in the opinion, and also in the brief for counsel for the defendant, to which may be added, People v. Harrington, 42 Cal. 165. Ekom all these cases, it seems very clear, that without some good reason, authorizing the criminal court to depart from the general practice in England and in this country, the shackles of the prisoner, when brought before the jury for trial, should be removed. We have no doubt of the power of the criminal court, at the commencement, or during the progress of the trial, to make such orders as may be necessary to secure a quiet and safe one, but the facts stated by the court in this ease, as shown by the record, that the prisoner had assaulted a person in court, about three months before the term at which he was tried, would hardly authorize the court to assume that, on his trial for life, he would be guilty of similar outrages. There must be some reason, .based on the conduct of the prisoner, at the time of the trial, to authorize so important a right to be forfeited. When the court allows a prisoner to be brought before a jury with his hands chained in irons, and refuses, on his application, or that of his counsel, to order their removal, the jury must necessarily conceive a prejudice against the accused, as being in the opinion of the judge a dangerous man, and one not to be trusted, even under the surveillance of the officers. Besides, the condition of the prisoner in shackles may, to some extent, deprive him of the free and calm nse of all of his faculties.” In the Kring case, the facts upon which the foregoing information was predicated were these: ‘ ‘ The defendant was brought to the bar of the court, and, having announced through his counsel his readiness for trial, the court thereupon ordered the trial to proceed. Defendant being ironed with handcuffs, or manacles, upon his hands and wrists, his counsel then and there made a motion to the court to have the same removed, which the court refused to do, overruling the motion, the court stating that an assault made by the accused on J. G. Broemser, husband of the deceased, in open court, when the accused was last here, was the reason why. ’ ’ Judge Bakewell, for the Court of Appeals, reviewed the common law on this subject, and said: “In the case of Layer, 16 How. St. Tr. 94, who was tried for high treason in 1722, a distinction was taken, and it was held that the prisoner might be brought ironed, to the bar, for arraignment, but that his shackles must be stricken off at - the trial. ‘My Lord,7 said the prisoner, in the report of that case, ‘I hope I shall have these chains taken off, that I may have the free use of that reason and understanding which God hath given me,7 to which the Lord Chief Justice replies: ‘As to the chains you complain of, it must be left to those to whom the custody of you is com-mitted to take care that you may not make your escape ; when you come to your, trial, then your chains may be taken off.7 To which .counsel for the prisoner said: ‘Tour Lordship hath limited it as an indulgence extended to him when he comes to his trial that his irons should be taken off; but I humbly insist upon it that by Imv he ought not to be called upon even to plead until his fetters 'are off. My Lord Coke (3 Inst. 35) is clearly of that opinion in his Pleas of the Crown; and it is admitted on all hands that, when he comes to be tried, his shackles must be off; and upon debate, it was so determined in Cramburne’s case, 13 How. St. Tr. 222. The only reason for putting of irons at all on a prisoner, is to keep him in safe custody; and the reason why they are taken off in the course of proceedings against him in a court of justice seems to he that his mind should, not he disturbed by any uneasiness his body or limb should be under.’ The Lord Chief Justice said: ‘No doubt, when he comes upon his trial, the authority is that he is not to be in vinculis during his trial, but should be so far free that he should have the use of his reason and all advantages to clear his innocence. Here he is only called upon to plead by advice of his counsel; he is not to be tried now; when he comes to be tried, if he makes that complaint, the court will take care that he shall be in a condition proper to make his defense; but when he is only called on to plead, and his counsel by him to advise him what to plead, why are his chains to be taken off this minute, and to be put on again the next?’ ” In Waite’s Case, 1 Leach 43, when the defendant had pleaded not guilty, and was put upon his trial, the court ordered his fetters to be knocked off. Giving full effect to the doctrine announced in Kring’s case, and the common law authorities, it is obvious that, accepting. the defendant’s own account, he has not brought himself into a like situation with that described in either of those cases. Adopting his own version, the shackles were removed from him as soon as he was brought within the bar of the court. In State v. Craft, 164 Mo. 651, it was said by Burgess, J., for this courtAt common law when a prisoner was brought into the court for trial, upon his plea of not guilty to indictment for a criminal offense, he was entitled to make his appearance free from all shackles or bonds (State v. Kring, 64 Mo. 591; State v. Kring, 1 Mo. App. 438; People v. Harrington, 42 Cal. 165); and, to justify shackles on the prisoner during the trial, there must exist some good reason, bottomed upon his conduct at the time of the trial; otherwise, in this country, when the prisoner is brought before the jury for trial the shackles should be removed. ’ ’ In State v. Temple, ante, p.228, this same error is urged, and speaking for this court, Judge Burgess said: “It has been held by this court, following the common law rule, that when a prisoner is brought into court for trial, upon his plea of not guilty to an indictment for a criminal offense, he is entitled to make his appearance free from all shackles or bonds; and to justify the keeping of shackles upon the prisoner during the trial, there must arise, during the trial, some good reason therefor based upon the conduct of the prisoner, in the absence of which such action would be improper and would deprive the defendant of a substantial legal right, to his prejudice. But there is no pretense that the prisoner in this case was shackled during the trial. On the contrary, it clearly appears that he was not in any way deprived of the free and calm use of all of his faculties. We do not, however, intend to be understood as holding that any explanation was due from the officers in charge of the defendant for placing shackles upon him taking him to and from the court house during the trial.” All of which is applicable to the facts of this case and conclusively establish that the defendant has no ground of complaint on account of the action of the officer in handcuffing him while bringing him to, and taking him from, the court. [State v. Duncan, 116 Mo. 308; State v. Rudolph, 187 Mo. l. c. 89.]

Y. It is next insisted that the information is bad. The information was drawn to charge an offense under section 1846, Revised Statutes 1899. It charges that the defendant unlawfully, feloniously, on purpose and of his malice aforethought, in and upon one William P. Gibson, did make an assault, and did then and there feloniously, on purpose and of his malice aforethought, shoot and strike him the said William P. Gibson, in and upon the face and head with a certain revolving pistol then and there loaded with leaden balls, which he, the said defendant, then and there in his hand had and held, with intent then and there him, the said Gibson, on pnrpo-se and of his malice aforethought, feloniously, to kill and murder, etc. The information charges every element of the offense denounced in section 1846, and is not obnoxious to the objection made by defendant, and is in accordance with the precedents of this court since the case of State v. Comfort, 5 Mo. 357; State v. Chandler, 24 Mo. 371; State v. Jones, 86 Mo. 623; State v. Wood, 124 Mo. 412; State v. Hendrickson, 165 Mo. 262.

VI. The first instruction given by the court of its own motion is challenged. That instruction is in these words: “The defendant is presumed to be innocent of the offense with which he stands charged, and this presumption continues throughout the case until overcome by evidence showing him guilty beyond a reasonable doubt; and if you have a reasonable doubt of the guilt of the defendant, you must acquit him, but such a doubt to justify an acquittal must be a substantial doubt founded on the evidence, and not a mere possibility of the defendant’s innocence.” Defendant assails this instruction on the authority of State v. Blue, 136 Mo. 41, but a reading of the instruction in that ease will show that it differs materially from the instruction in this case. In the Blue case, the instruction required “the doubt to be consistent with the evidence.” There is no such requirement in this case. The objection is not well taken; it is substantially the same as the instruction on reasonable doubt approved by this court in State v. Blunt, 91 Mo. 503; State v. Sacre, 141 Mo. 64; State v. Duncan, 142 Mo. 456; State v. Adair, 160 Mo. 391. We must be allowed again to commend to the trial-courts the instruction in State v. Nueslein, 25 Mo. 111, which has always received the approval of this court.

VII. The objection urged against the second instruction is that it eliminates the necessity of proof that the criminal act was done “purposely” and “with mlalice aforethought.” A reference to the instruction itself will show that the jury was required to find that the defendant “on purpose, wilfully and with malice aforethought, made an assault on the witness Gibson and shot him in the face and head, with the intention of killing him.”

The court correctly defined “willfully,” “malice,” and “malice aforethought,”and the instruction must be held sufficient.

VIII. The last assignment of error is that the court erred in overruling the defendant’s application for continuance. The rule in this State is firmly established that the granting of a continuance is a matter resting largely in the trial court’s discretion, and nothing short of an abuse of such discretion will justify an.interference by this court. The affidavit assigned as a reason why the defendant could not safely proceed to trial that one Charles Drake, who was a competent, material witness for defendant, was absent. It is alleged “that the said witness resides in Lyle, Grant county, Oklahoma, and that he expected to prove that Charles Drake was present with the defendant on the day and date named in the information, and at the time of the assault complained of in the information, and that he believes that he can prove by said witness that defendant was assaulted by several police officers without provocation or just cause; and that by reason of said assault was compelled to and did retreat as far as he could go, whereupon said officers struck and beat defendant with heavy clubs in and about the head, and that thereupon defendant, in defense of his own life, shot and wounded one of said officers; that said witness disappeared on the day and date named in the.information and immediately after the assault therein complained.of, and that defendant used due and proper diligence to locate said witness, but had been unable to do so until the present time, but he is now informed that said witness is now residing and may be found in Lyle, Grant county, Oklahoma. ’ ’

So far as mere matter of form is concerned, the affidavit substantially complies with the requirements of the statute, section 2600, Revised Statutes 1899, with the exception that it does not state what diligence, if any, had been used by the defendant to locate the alleged absent witness, Charles Drake. It is not averred that defendant had received a letter from the said witness, or any other person living at Lyle, Oklahoma, that the said Drake was now living there, nor was the court informed as to the nature of the information that justified the defendant in believing that said Drake could be found in Lyle, Grant county, Oklahoma. In State v. Worrell, 25 Mo. l. c. 256, it was said: “Even if the circuit court may have seemingly exercised its discretion without proper caution at first (which we do not pretend to say was the case here), yet when the whole case is presented before this court, and the absent witness, from what is alleged in the affidavit, may be supposed not to be able to change the result, if produced and present, and indeed ought not to change the result, there can be no injury done to the defendant by ruling him to trial; and in such cases this court will not reverse.” In State v. Kindred, 148 Mo. l. c. 281, in passing upon the question of whether error had been committed in denying a continuance, it was said: “In the meantime, he alleges, the witness on or about the first of May left Mercer county, and was then in Oklahoma Territory. The affidavit does not disclose the address of the witness in Oklahoma. It does not appear that he has become a resident of said Territory nor that he went there with a view to a permanent residence. For aught that appears to the contrary the witness might have had no intention of settling in said Territory. Being without the jurisdiction of our courts he might feel under no obligation to tarry there until a commission should issue, and notices be served. It was entirely problematical where or when this witness could he found.” And it was said: “Looking now over the whole evidence, that of the defendant and the other eye-witnesses, we can see there is not the least probability that the testimony of the absent witness, if given as indicated, would have affected the result, nor would it have changed the verdict, and no injury resulted by refusing the continuance. ” So we can now look at the whole evidence in this case, and the affidavit for continuance and say there is not the slightest probability that, if the said witness Drake had appeared, and had testified as indicated in this affidavit, or if his deposition had been taken in Oklahoma to that effect, it would have had the slightest effect on the result of the trial.. It is significant that although defendant was represented by able and industrious counsel, no effort was made to disclose on the cross-examination of the State’s witnesses that this man Drake was present at the livery stable when the defendant shot Sergeant Gibson, nor was the slightest attempt made to show that Gibson, or officer Grable, or any one else began the difficulty by assaulting the defendant, or beating him over the head with clubs so that he was compelled to shoot Gibson in self-defense. In the face of the testimony of the officers, Gibson and Grable, and of the witnesses Wilkerson, Luchsinger and Wakefield, all residents of Buchanan county, there is not the slightest probability that the jury would have accepted the unsupported testimony of the peripatetic witness Drake, and found that the defendant shot the officer in self-defense.

There was no abuse of discretion in refusing to delay a trial of so much importance with no better showing of diligence than is disclosed on this record. The evidence in this case shows that a deadly assault was made upon an officer of the law without the slightest provocation. The defendant has had a fair and impartial trial, and should congratulate himself that the victim of Ms assault did not die from the wounds he inflicted upon Mm.

The judgment of the criminal court of Buchanan . county is affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    THE STATE v. CHARLES WALKER, Appellant.
    Division Two,
    March 6, 1906.
    1. LARCENY: Sufficiency of Evidence. Evidence examined and held sufficient to support the verdict finding defendant guilty of the larceny of a cow.
    2. -: Evidence: Identification. Evidence that two days prior to the day on which defendant sold the stolen cow to a commission company, he sold another cow to the same company, was admissible for the purpose of identifying defendant as the party who had in his possession the cow stolen from the prosecuting witness; and such evidence did not show another and separate crime, there being no evidence that the cow first sold was stolen.
    3. -: Instruction: Recent Possession: Alibi. Although an instruction, in a larceny case, on the presumption arising from • the recent possession of stolen property, may not be comprehensive enough as not including the evidence as to alibi, yet if the defense of alibi is fully covered by another instruction, the error is not reversible. However, it would be preferable to make the instruction on recent possession broad enough to cover all matters which should be considered in rebuttal of the presumption arising from recent possession.
    4. REMARKS OF ATTORNEY: No Exception. Alleged improper remarks of an attorney, in order to be reviewed, must be preserved in the bill of exceptions.
    Appeal from Jackson Criminal Court. — Bon. Jno. W. Wofford, Judge.
    Aeeirmed.

      Philip D. Clear for appellant.
    (1) There ought to have been a verdict directed for defendant at the close of the case if only proper and legitimate evidence had been admitted. (2) The court committed reversible error in admitting, over the timely, proper and full specific objections of defendant, the evidence relating to a separate larceny of a cow on or prior to December 21,1904, when it was sold at stock yards by a man by the name of Smith claimed by State to be defendant, and further committed reversible error in admitting, over timely and proper objection of defendant, the scale ticket evidencing the weight of the cow and the amount of money to be paid Smith on presentation to the proper party of that scale ticket, because said evidence all relates to a separate crime and transaction, from the one charged in the information. State v. Spray, 174 Mo. 569; State v. Goetz, 34 Mo-. 85 ; State v. Harold, 38 Mo. 496; State v. Daubert, 42 Mo. 242; State v. Reavis, 71 Mo. 419; State v. Turner, 76 Mo. 350; State v. Tabor, 95 Mo. 590; State v. Reed, 85 Mo. 194; State v. Burlingame, 146 Mo. 207.

      Herbert S. Hadley, Attorney-General, and John Kennish, Assistant Attorney-Greneral, for the State-.
    (1) The court did not err in overruling defendant’s demurrer at the close of the evidence for the State. 2 Bish. New Crim. Proc., sec. 739; State v. Kelly, 74 Mo. 608; State v. Jennings, 81 Mo. 185 ; State v. Butter-field, 75 Mo. 297. (2) The court, in a separate instruction, declared the law on the defense of alibi in the form approved by this court. State v. Adair, 160 Mo. 391. (3) For the purpose of identification, it is permissible to prove even other crimes than the one on trial. Under-hill on Crim. E.v., sec. 91; 1 Bishop’s New Crim. Proc., 1129; 1 Wigmore on Ev., sec. 414, and foot note; State v. Bailey, 88 S. W. 733; Yarborough v. State, 41 Ala. 405; Peoples v. Taylor, 69 Pac. 292; State v. Folwell, 14 Kan. 105.
   GANTT, J.

This prosecution was commenced by the prosecuting attorney of Jackson county filing an information in the criminal court of Jackson county, at the January term, 1905, wherein he charged that Charles Walker,, alias E. Johnson, whose Christian name in full is unknown to said prosecuting attorney, late of the county aforesaid, on the 23rd day of December, 1904, one red milk cow of the goods and chattels of William A. Gosnell and James O. Gosnell, then and there being, did then and there unlawfully and feloniously steal, take and carry away, against the peace and dignity of the State.

The information was verified. The defendant was arrested and arraigned upon said charge and entered his plea of not guilty, and at the April term, 1905, of said court, was tried, convicted and his punishment assessed at four years imprisonment in the penitentiary. Motion for new trial was filed in due time, heard and overruled, exceptions saved and an appeal taken to this court.

The evidence on the part of the State tended to prove the following facts: James C. Gosnell, on the 22nd of December, 1904, resided at 35th and Agnes streets in Kansas City, Jackson county, Missouri. He had in his possession a milk cow, belonging to himself and his father, William A. Gosnell. This cow was kept in a barn yard on his'premises, which yard was surrounded by a wire fence and two gates. About dark on the night of December 22,1904, the cow was seen in the lot by James C. Gosnell and his employee, Thomas Jones. That latter fastened the gates, tying one, and the other was closed with a latch. The next morning the fence was broken and the cow gone.' Not far from the lot Gosnell found a cow track corresponding to the track of his cow. and near the cow’s tracks, and leading in the same direction, the tracks of a man wearing large overshoes. The tracks were leading away from Gosnell’s premises. That same day the cow was found in the Kansas City Stock Yards, in the possession of the Campbell & Rosson Live Stock Commission Company. On the morning of the 21st of December, 1904, a man giving his name as J. Smith sold a cow to the said commission company, and received therefor a ticket, showing the weight, charges, price, etc., and a check for the purchase money. The same man appeared again with another cow, to-wit, the cow belonging to the Gosnells, on the morning of December 23, 1904, and sold her to the same company under the name of Johnson, and received a ticket and check as before. This last cow, sold by the man giving his name as Johnson, was fully identified as the cow stolen from Gosnell, and was returned to him by the commission company. A description of the man who sold the cow was given to Gosnell, and thereupon he gave the commission company the address of a man living about two miles from his place of residence. Lee Glascock, an employee of the commission company, and a deputy marshal, were sent to the residence of this man, and Glascock identified this man, the defendant herein, as the one who sold the company said cow, and thereupon defendant was arrested at his home by the deputy marshal, about four o ’clock in the afternoon. When arrested, the defendant answered to the name of Walker. The testimony on the part of the State positively identified the defendant as the man who had sold the cow two days before under the name of Smith, and who had sold Gosnell’s cow under the name of Johnson. When arrested, the defendant was searched, and a five dollar gold piece was found in one of his boots, and three silver dollars in the other. In the fob pocket of his pants was found the sale ticket of the cow sold the commission company on the 21st, under the name of Smith. This ticket was offered in evidence and the defendant was asked about it, but said he did not know anything about it. The defendant offered evidence tending to show that he was at his home all night during the night of December 22, 1904, and until seven or eight o’clock on the morning of the 23rd; he also offered evidence of good character in the neighborhood in which he resided. The State in rebuttal offered evb dence tending to impeach his good character for honesty and integrity.

The cause was submitted to the jury under instructions defining larceny; on the presumption arising from the recent possession of stolen property; and on the defense of alibi and reasonable doubt. Other facts will be noted as occasion may require in the examination of the errors alleged to have been committed by the criminal court.

I. Counsel for the defendant insists that at the close of the State’s case, if only proper and legitimate evidence had been admitted, the court should have directed a verdict for the defendant.

Under this head, the counsel for the defendant argues at great length the insufficiency of the evidence tending to identify the defendant as the man Johnson who sold the cow to the commission company at the stock yards on the morning of the 23rd of December. Much stress is laid upon the fact that at the preliminary trial before the justice of the peace, several of the witnesses, Glascock and McReynolds, among others, only identified the defendant as Johnson from the fact that he wore felt boots, and that Gosnell was actuated by unfriendly feelings to the defendant. But, on the other hand, the witnesses on behalf of the State made out the following case: M.r. Gosnell testified to the ownership and possession of the cow, and that she was at his home on the night of the 22nd of December, 1904, in an enclosed lot; that next morning about seven or seven thirty o’clock, his cow was missing, and he found the tracks leading towards the stock yards; that he went to the stock yards and found her there in the possession of the Campbell & Rosson Live Stock'Commission Company. He testified that the tracks of the man which accompanied the cow tracks from his place appeared to have been made by large felt boots, or overshoes; that the overshoes appeared to have been of new rubber ;-that the impression of the rubber was plain. Indeed, the evidence left no doubt whatever that the cow found by G-osnell in the stock yards belonged to him. His evidence was fully corroborated by that of Jones, who lived with G-osnell, and closed the lot gates on tlie night the cow was stolen.

Mr. Hieronymus testified that he had lived in Kansas City for twenty years, and his business was that of selling hogs at the stockyards. He identified the defendant as the man who, on the 21st of December, came to the stock yards at the 12th street gate, and gave him the name of J. Smith; he had a cow to sell. Witness asked the defendant, “Who sells your cow?” and he says, “You folks.” Witness then asked him his name and he said, “J. A. Smith.’.’ Thereupon the witness says, “I took his cow up to block 25, and turned her over to the cattle salesman,” and said to the defendant, “I do not know how long it will be before your cow will be sold, ’ ’ and defendant says, ‘ ‘I am going out the 12th street gate, I have a horse and wagon out there. ’ ’ Witness testified that he was in the employment of the Campbell & Rosson Company on the 21st of December; that he had good opportunity to observe the defendant as he talked with him and walked with him; that the defendant had on a cap and felt boots with rubbers over them, had a short beard on his face at that time, and thinks he had on a duck coat. He testified that he had no doubt whatever of the defendant being the man who brought the cow to the stock yards on the 21st of December; that he made a memorandum in his book at the time.

W. PI. Gott testified that he was in the employment of tlie stock yards company at the 12th street' gate, on the morning of December 21; asked if he knew the defendant, he answered, “I have seen him before,” and that the defendant had given him his name as J. Smith; that he brought a cow there on that morning; that he made a memorandum at the time of the transaction which showed J. Smith, C. B. E., which stood for Campbell & Rosson, one cattle; that he noticed that the defendant had on a pair of rubber boots, otherwise he would not attempt to describe his dress; that it was bright day light, and he had no difficulty in observing the defendant; that he noticed particularly some spots on the defendant’s face; that at first he thought it was smallpox marks, that was the first thing that directed his attention when he saw the defendant at the trial in the criminal court and identified him as the same man.

Joe Hielman testified that he was a buyer at the stock yards, and saw the defendant there on the morning of the 21st of December, and recognized him as the man who came there with a cow to sell and gave the name of Smith, and his recollection was that he had on felt boots that morning, he did not pay much attention to his other clothing. He noticed that defendant had a freckled face, and that attracted his atttention.

Mr. W. H. Thompson testified that he wa,s the cashier and bookkeeper for the Campbell Bros. & Rosson Commission Company; he recognized the defendant; the first name he knew him under was Smith; he identified a duplicate scale ticket issued by the stock yards company of the weight of the cow that was sold by his firm on the account of J. Smith. When the cow was sold on the 21st of December, witness figured up the ticket and determined the net proceeds and gave defendant a check for the same. He delivered this check to the prisoner under the name of J. Smith that morning in the company’s office, and it was paid and came back with the return vouchers from the bank. On the 23rd of December, this same man, under the name of Johnson, brought another cow to the stock yards and his firm, sold the cow for him, and he again made out a ticket for the cow, and gave the defendant, under the name of Johnson, a check for her; that the defendant came np to the desk and inquired if we had a ticket there, for his cow. At that time we did not have it; I asked him to have a seat, and ‘ ‘ the boys would probably send it in from the yard. ” The defendant sat down in a chair, he then got up and went out of the office, and before his return they sent the ticket in from the yards and when he came back and asked for it again, witness figured it up and wrote a check and gave it to him. The defendant was around the office probably for a half or three quarters of an hour. Asked if he observed the defendant’s face, he answered, “Yes;” asked if he noticed anything peculiar on his face, he answered he did, “I noticed he was a large man, at that time, and had kind of reddish whiskers, and probably a week’s growth of whiskers on his face, and was freckled.” Q. “You understood he was a colored man!” Ans. “Yes, sir, there was no question about that in my mind. ’ ’ Asked if defendant was that man whom he knew as Johnson, he answered, “Yes, sir, unquestionably.” On cross-examination, he was asked why it was he received the cow from the defendant, and bought it from him, and issued a check to him for the money under the name of Johnson; he answered, “I remembered the man’s face when he came in, and knew he had been there; at that time, under the pressure of business, I did not associate- the man’s face with .the name of Smith when he had been there before; I did that afterwards when this thing came up; I went to investigating my records and found out that he was the same man that gave the name of Smith.” He testified, also, that the defendant had on felt boots, and said that he positively identified the defendant in the justice’s court.

Lee Glascock testified that he was at the office of Campbell'Bros. & Rosson on the morning of the 23rd of December, when tbe defendant came in and said he bad a cow for Campbell Bros. & Rosson, and tbe defendant gave tbe name of Johnson. The cow was sold to Swift & Co./but Mr. Gosnell came in that day and identified tbe cow, and witness sent over and got tbe latter from Swift & Co., and got tbe cow ont of their pens and turned ber over to Mr. Gosnell. Witness testified that lie next saw tbe defendant at bis home out south of tbe city that afternoon. He identified tbe defendant Walker as tbe man be talked with that morning at tbe stock yards under tbe name of Johnson.

McReynolds also testified that be was working at tbe stock yards on tbe 23rd of December, 1904, and tbe defendant came there and gave bis name as Johnson, and said be bad a cow to yard for Campbell Bros. &■ Rosson. He bad tbe cow tied behind a one-borse wagon, a milk cow, and be put ber in tbe yards, and gave him an order to tbe commision firm to let them know that tbe cow was there. ;

The marshal testified that when be arrested the defendant that afternoon, be bad on a pair of felt boots with big rubber overshoes over them; that be searched him after be brought him to jail, and found a five dollar gold piece in one of bis boots, three dollars in silver in tbe other; in tbe fob pocket of tbe first pair of pants, be found a scale ticket of the weight of a cow, this was tbe scale ticket identified by tbe witnesses, of the sale of tbe cow by defendant under tbe name of J. Smith on tbe 21st of December. He was asked where be got that, and be said, “I do not know anything about that.” I said, “this is a different cow and different weight from the one we are looking for.” The State also proved that tbe cow would be cheap at $30.

In tbe light of all this evidence, it is plain that tbe court committed no error in refusing to discharge- the prisoner at tbe close of tbe State’s case.

II. But it is earnestly insisted by tbe defendant that the court erred in permitting the State to show that defendant, under the name of J. Smith, sold another cow on the 21st of December, 1904, to the commission company; that this permitted the State to prove another and separate crime than the one with which the defendant was charged, and that under the decisions of this court in State v. Groetz, 34 Mo. 85, and State v. Spray, 174 Mo. 569, it was error to admit such proof. This, however, is a misapplication of the doctrine announced in those two cases, and many others to the same effect in 'this State. In the first place, there was no evidence offered tending to prove that the cow he first sold had been stolen. The purpose of the evidence offered as to the first cow and the ticket of the said sale, was to identify the defendant as the same person who had in his possession, on the 23rd of December, 1904, the cow stolen from the prosecuting witness, Grosnell. For the purpose of identification it is permissible to prove every fact connecting the defendant with the crime charged. [State v. Bailey, 190 Mo. 257; Underhill on Criminal Ev., sec. 91; Bishop’s New Criminal Proc., 1129; 1 Wigmore on Evidence, sec. 414; State v. Folwell, 14 Kan. 105; Yarborough v. State, 41 Ala. 405.] It was entirely competent for the witnesses who were the employees of the Campbell & Rosson Commission Company to state when and where and under what circumstances they had seen the defendant prior to the time they were testifying in this case, and identifying him as the man from whom they had received G-osnell’s cow, and for whom they had sold it. to Swift & Co. This is elemental and requires no citation of the . law of evidence to sustain it. The ruling of the learned criminal court is in no manner in conflict with the decision in State v. Spray, 174 Mo. 569.

III. It is nest urged that the court erred in refusing to admit more evidence to establish an alibi, and in .striking out the evidence of David Ingle for the defendant. There is nothing to show that any other witnesses were offered in addition to those who did testify for the defendant to establish his alibi, and no exception whatever was saved to the striking ont of the evidence of David Ingle, hence there is nothing for us to review on that point.

IY. It is insisted that the court erred in its 4th instruction to the jury on the question of the presumption arising from the recent possession of stolen property. The basis of this assignment is that the court in this instruction did not include in its enumeration of the evidence which the jury should consider as rebutting the presumption of guilt from the recent possession of stolen property, the evidence tending to prove an alibi: While the counsel for the defendant has not called our attention to this specific objection to' this instruction, it is to be noted that the instruction in and of itself is not comprehensive enough under the decisions of this court in State v. Kelly, 73 Mo. 608; State v. Sidney, 74 Mo. 390; State v. North, 95 Mo. 615; and if the instruction stood alone and had not been supplemented by instruction numbered 6, which fully covered the defense of alibi, it could hardly stand the test of the foregoing cases, but, as we have often said, the instructions of the court must all be read and considered together.

In State v. Riney, 137 Mo. l. c. 105, it was said: “The State having shown defendant in the exclusive possession of a pair of shoes stolen from the burglarized car so recently after the goods were stolen, it was entirely proper to instruct the jury on the presumption arising from such possession, and, as the court also instructed fully upon the defense of alibi, no error resulted from not qualifying the instruction on recent possession as to the rebuttal of the presumption of guilt from recent possession by proof of an alibi, as the two instructions necessarily had that effect and must be read together.” Upon the authority of that case it must be held that the court by its instruction on alibi cured the oversight in not qualifying the instruction number four as to the effect of an alibi rebutting .the presumption of guilt. We will say, however, that we think it would he much preferable for the trial court to make the instruction on recent possession broad enough to cover all the matters which the jury should consider in rebuttal of the presumption of guilt from recent possession of stolen property.

Y. In his motion for new trial, counsel assigned as error certain remarks of the prosecuting attorney in his address to the jury, but as no exception was saved to the ruling of the court, that matter is not before us for review. Under the evidence and the presumptions of law, the defendant has no ground to complain of the verdict of the jury, and the judgment of the court. The judgment is affirmed.

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


text:
    THE STATE v. BELL, Appellant.
    Division Two,
    March 6, 1906.
    RAPE: Consummated Crime: Conviction of Attempt. Where the evidence shows that the offense of rape was fully consummated, the defendant cannot be convicted of an assault with intent to commit a rape.
    Appeal from. Shannon Circuit Court. — No». Wm. N. Evrns, Judge.
    Reversed and remanded.

      L. B. Shuck and J ames Orchard for appellant.
    A conviction of an assault, with intent to ravish, is erroneous, where the evidence discloses the perpetration of the intended crime. State v. Lacey, 111 Mo. 513; sec. 2361, R. S. 1899; State v. Scott, 172 Mo. 543.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    Defendant was charged with the crime of rape; hut, prior to the last trial, the prosecuting attorney elected to try him on the charge of assault with intent to rape. An entry to that effect was made of record, defendant was re-arraigned and pleaded not guilty to that charge. By the action of the prosecuting attorney the State was deprived of the right to longer prosecute defendant for the greater charge, and he was therefore only in jeopardy for the lesser offense. R. S. 1899, secs. 2369, 2370. On the subject of the conviction of one of assault with intent h> rape,- when charge alleged that he had been guilty of rape: State v. Scott, 172 Mo. 545; State v. Dalton, 106 Mo. 470.
   GANTT, J.

On February 18, 1904, the prosecuting attorney of Shannon county filed information in the office of the clerk of the circuit court of said county, duly verified, wherein he charged the defendant with having on the 20th of January, 1904, at the county of Shannon, in and upon one Alice Nichols, a female child under the age of fourteen years, unlawfully, violently and feloniously made an assault, and her, the said Alice Nichols, then and there unlawfully and feloniously did carnally know and abuse, against the peace and dignity of the State. The defendant was arrested, and at the March term, 1904,-of said court was duly arraigned and pleaded not guilty. A trial was had at said March term, which resulted in a mistrial. At the September term, 1904, of said court, defendant was again put upon his trial and another mistrial resulted. At the March term, 1905, the prosecuting attorney elected to prosecute defendant for an assault with intent to commit a rape, and thereupon defendant was re-arraigned and pleaded not guilty, and on this charge defendant was at said term tried and convicted of an attempt to rape and his punishment assessed at two years in the penitentiary. Motions for a new trial and in arrest of judgment were duly filed, heard and overruled, and appeal granted to this court.

It would serve no good purpose to spread upon the reports' of the decisions of this court the evidence adduced on the trial. It is sufficient to state for the purpose of our judgment that the question presented in this record is whether the testimony fairly considered is open to the contention of the State that whether the evidence established the completed offense of rape, or was merely an assault with intent to commit a rape, was doubtful, and therefore it was proper for the court to instruct on assault alone, as it did, or whether, as insisted by counsel for defendant, the testimony established, if anything, a fully consummated crime of rape. We have carefully considered alUthe evidence in this case and have reached the conclusion that without the testimony of the prosecutrix there could have been no conviction of either rape or assault to commit a rape, and, if her evidence is to be credited, then the offense of rape was fully perpetrated within the meaning of the law and our adjudications. Moreover, the medical testimony strongly confirmed this view of the testimony of the prosecutrix. We had occasion in. State v. Scott, 172 Mo. 536, to construe our statutes on the subject of rape and assault to commit rape, in connection with section 2361, Revised Statutes 1899. The facts in that case were very similar to those appearing in this record. Section 2361, Revised Statutes 1899, provides: “No person shall be convicted of an assault with an intent to commit a crime, or of any other attempt to commit any offense, when it shall appear that the crime intended or the offense attempted was prepetrated by such person at the time of such an assault or in pursuance of such attempt.” As was said in State v. Scott, supra, “This section is unquestionably a modification of the common law in criminal cases as announced by Wharton (1 Wharton’s Crim. Law, sec. 641), in which he lays it down that on an indictment for a major offense there may be a conviction of a minor, for the reason that the State may elect to prosecute for the minor offense provided always the minor is included in the major, and falls within the allegations - of the indictment, and in many States it has beeen expressly ruled that an assault with intent to commit a rape is included in every rape, and a defenddant may be convicted of an assault to commit rape, though the proof establishing the offense of rape was complete. [People v. Miller, 96 Mich. 119; Hall v. People, 47 Mich. 636; State v. Shepard, 7 Conn. 56; Com. v. Cooper, 15 Mass. 187; Polson v. State, 35 N. E. 907.] ” This section ( 2361) has been construed by this court in State v. White, 35 Mo. 500; State v. Lacey, 111 Mo. 513; and State v. Scott, 172 Mo. 536, and on each occasion it has been ruled that when, giving credence to the evidence of the prosecutrix, the crime of rape was fully consummated, the jury were not warranted in convicting the accused of an assault with intent to commit a rape. Why the Legislature has seen fit to retain this, section in the same code with sections 2369 and 2370, is difficult to understand, but, as said in State v. Lacey, 111 Mo. 513, “this is no reason why the court should nullify or ignore it.” Giving full credit to the testimony for the State, it seems perfectly plain that the defendant was guilty of rape, but he was neither tried nor convicted of that offense, but merely of an attempt to commit, which the statute positively forbids. The circuit court, therefore, erred in not instructing the jury to find the defendant not guilty of the offense of assault with intent to rape. The evidence did not justify instructions for assault; it tended to prove a completed, consummated case of rape. For the errors noted the judgment must be and is reversed, and the cause remanded for such further steps as the prosecuting attorney may elect to take.

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


author: FOX, J.

text:
    THE STATE v. JAMES, Appellant.
    Division Two,
    March 6, 1906.
    1. BURGLARY: Information: Ownership of Building.. An information charging burglary which fails to allege the ownership of the building charged to have been burglarized is fatally defective.
    2. LARCENY: Possession of Goods: Identification. Where the prosecuting witness identifies, the goods found in possession of the defendant as his property, and there is no testimony contradicting his identification, this'is sufficient to authorize the submission of that question to the jury whose province it is to determine the ultimate fact as to whether the goods found in defendant’s possession were in fact the goods stolen from the prosecuting witness.
    3. BURGLARY AND LARCENY: Recent Possession of Stolen Goods: Presumption: Instruction: Evidence. An instruction, set out in the opinion, on the presumption arising from the recent possession of goods stolen by means of a burglary, is held proper; and the evidence is examined and held sufficient to authorize the giving of such instruction.

      4. REMARKS OF ATTORNEY: In Motion for New Trial: No Exception. The mere assignment, in the motion for new trial, of alleged improper remarks of an attorney is not sufficient to preserve them for review, but they must be excepted to at the time and preserved in the bill of exceptions.

      5. EVIDENCE: Previous Conviction: Error Cured. Although it was improper to ask a witness, before defendant had testified, whether defendant had ever been in the penitentiary, yet as defendant subsequently testified and admitted that he had been in the penitentiary, no injury was done.
    6. JUDGMENT: By Appellate Court: Burglary and Larceny. Where on appeal from a conviction of ourglary and larceny, the judgment as to the burglary is held erroneous because the part of the information charging that offense is fatally defective, the appellate court will not reverse and remand the cause, but will enter the proper judgment for the larceny.
    Appeal from Jackson Criminal Court. — Eon. Jno. W. Wofford, Judge.
    Affirmed in part and judgment entered here.

      Philip D. Clear and W. F. Biggs for appellant.
    (1) The State rested its case on the theory that recent possession of stolen property establishes a prima facie case of guilt against the one in possession. But the property must be sufficiently identified. Gray v. Parker, 38 Mo. 160; Kaufman v. Schilling, 58 Mo. 218 ; Mahoney v. Smith, 7 Mo. App. 578. (2) Only the underwear on defendant when arrested and the pair of shoes, if the officer who beat defendant severely is believed instead of defendant, recovered from Levy, can be said to have been in the exclusive possession of defendant, and only exclusive possession of stolen goods raises a presumption of guilt. State v. Castor, 93 Mo. 242; State v. Warford, 106 Mo. 55; State v. Scott, 109 Mo. 226; State v. Owsley, 111 Mo. 450; State v. Belcher, 136 Mo. 137; State v. Baker, 144 Mo. 329; State v. Drew, 179 Mo. 315. (3) Error was committed in overruling motion for new trial, because of giving instruction 3 for the State, the presumption of guilt instruction; also because of the exception saved to prosecutor Lyman’s remarks to jury.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The information, which was accompanied by the affidavit of the prosecuting witness, was sufficient. R. S. 1899, sec. 1891; Kelley’s Criminal Law, sec. 609; State v. Watson, 141 Mo. 338. (2) State’s instruction 3, on the presumption arising from the recent possession of stolen property, has been approved. State v. Owens, 79 Mo. 624; State v. Warford, 106 Mo. 61; State v. Scott, 109 Mo. 228. (3) Evidence that defenddant had served a term in the State penitentiary was excluded by the court, when the State endeavored to bring it out; but 'later, defendant and defendant’s mother testified to that fact. So defendant can not now complain thereof, even if error was committed. State v. Goddard, 162 Mo. 198. (4) The alleged improper remarks of the prosecuting attorney, during his closing argument to the jury, can not be considered, because of the failure to preserve said remarks in the bill of exceptions. Affidavits to the effect that objectionable remarks were made are not sufficient to save the matter for review. State v. Latimer, 116 Mo. 524; State v. Welsor, 1.17 Mo. 583; State v. Steen, 115 Mo. 474. (5) The evidence was ample. Martin v. State, 88 S. W. 962; McGaha v. State, 88 S. W. 983; State v. Tandle, 166 Mo. 539; State v. Frankie, 159 Mo. 535.
   FOX, J.

This 'cause comes here upon appeal by the defendant from a judgment of conviction in the criminal court of Jackson county for burglary and larceny. The information upon which this judgment is predicated,.omitting formal parts, was as follows:

“Now comes Roland Hughes, prosecuting attorney for the State of Missouri in and for the body of the county of Jackson, and upon the affidavit of Jacob Louis, herewith attached and filed, informs the court, that George James and John Richards, whose Christian names in full are unknown to said prosecuting attorney, late of the county aforesaid, on the 25th day of March, 1904, at the county of Jackson, State aforesaid, did unlawfully, feloniously and burglariously break into and enter a certain building, Number 806, Independence avenue there situate, the same being a building in which divers goods, wares, merchandise and valuable things were then and there kept for sale and deposited, with the felonious intent the said goods, wares, merchandise and valuable things in the said building then and there being then and there unlawfully, feloniously and burglariously to steal, take and carry away; and 16 pairs of shoes of the value of thirty-four dollars, 30 undershirts of the value of nine dollars, 6 drawers of the value of three dollars, six drawers, elastic sides, of the value of three dollars, two dozen pairs of socks of the value of three dollar’s, three dozen handkerchiefs of the value of three dollars and sixty cents, two striped shirts of the value of one dollar, one grip of the value of one dollar, three hats of the value of six dollars, all in the aggregate of the value of sixty-three and 40-100 dollars, of the goods and property of Jacob Louis in said building then and there being found, did then and there unlawfully, feloniously and burglariously steal, take and carry away, against the peace and dignity of the State. ’ ’

On May 25, 1904, a severance was granted defendant and he was put upon trial for the offense charged. We have examined the disclosures of the record and find that the testimony tended to prove substantially the following state of facts:

On the 25th of March, 1904, the defendant, who is a negro, resided with his mother in Kansas City. The prosecuting witness, Jacob Louis, was the owner and proprietor of a clothing store, situated at No. 806 Independence avenue, in said city, and in said store various articles of merchandise were stored and kept for sale. Mr. Louis remained at his store on the evening of the 25th of March till about eleven or twelve o ’clock, when he locked the front and back doors and went to- his bed room, which was over his store. The next morning Mr. Louis discovered that some one had cut a hole in the panel of the back door, and then removed the wooden bar which fastened the door. There were two- back doors to said store, and in front of this one there were some valises sitting on the floor. These valises had been pushed back and the door was wide open. On examining his stock, Mr. Louis discovered that sixteen pairs of shoes, twenty-four blue undershirts, twelve pink undershirts, six pairs of cream-colored drawers, thirty-six handkerchiefs, a suit case, four hats, some socks, and some striped shirts had been stolen. The aggregate value of said property was about $63.40. The defendant had often been aronnd Mr. Louis’s place of business. Mr. Louis at once reported the facts to the police authorities. Officer Phelan having been detailed to investigate the burglary, arrested the defendant and John Richards the next day at Sandy Edwards’ saloon. A new suit of underwear was found on defendant, and a new suit of underwear was found on John Richards, both of which were identified by Mr. Louis as having-been stolen the night before; the undershirt was too small for defendant. All of the balance of the stolen property was found at the home of defendant’s mother that day, except the sixteen pairs of shoes. To this police officer defendant admitted that he had given one pair of shoes to a man named Bishop, to sell to Levy’s pawnshop. In this pawnshop one pair of shoes was found, which was identified by Mr. Louis. Defendant told this officer that he had got these various articles from John Richards, and afterwards said that he bought them from a white man; he also stated that he might just as well have gotten a wagon load.

The defendant’s mother testified that she bought the clothing- from a white man, and gave him one dollar and something- to eat. That she then gave some of the clothes to defendant, and the rest remained at her house till the police searched the house. Defendant’s sister testified that she saw a white man leaving home just as she was returning and that her mother then told her that she had purchased a lot of clothing from that man, and had paid him one dollar. In his own behalf defendant testified that he was in St. Joseph at the time of the commission of the alleged crime, returned to Kansas City the morning after its commission, and got the clothing from his mother; that he did not steal any of said property, knew nothing- of who stole it, and was not even acquainted with John Richards. He also testified that police officer Phelan mistreated him and threatened him, forcing him to make the alleged statements testitled to by said officer. Tbe officer denied the statements of defendant as to such mistreatment.

At the close of the evidence the court instructed the jury and the cause was submitted to them and they returned the following verdict:

“We, the jury, find the defendant George James guilty of burglary, as charged in the information, and assess his punishment at five years in the State penitentiary. We, the jury, also find the defendant guilty of larceny, as charged in the information, and assess his punishment therefor, in addition to the punishment assessed for burglary, at three years in the State penitentiary. ’ ’

The instructions complained of will be given due consideration during the course of the opinion.

Motions for new trial and in arrest of judgment were timely filed and by the court taken up and overruled. Judgment and sentence was duly entered of record and from this judgment defendant in due time and form prosecuted his appeal to this court, and the record is now before us for consideration.

OPINION.

At the very inception of the consideration of the record in this cause we find that the information upon which this judgment is predicated fails to properly charge the offense of burglary in the second degree. We have reproduced such information and it is apparent that there is an entire absence of any charge or allegation of ownership of the building in which it is charged the burglary was committed. The charge is that defendant did unlawfully, feloniously and burglariously break into and enter a certain building No. 806 Independence avenue, there situate; but there is no allegation as to the ownership of the building, not even an intimation as to who was in possession of it. The ownership of the building is an essential allegation in charging the offense of burglary. Tlie general rule as to the necessity of this allegation is well stated in Cyc. of Law & Proc., vol. 6, p. 209, sec. 11. it is there said: ‘ £ Except in so far as the rule may be changed by statute, an indictment for burglary, whether at common-law or under a statute, must allege the ownership of the dwelling-house or other building broken and entered, if it is known, or it will be fatally defective, and it must do so accurately, so that there will be no variance between the allegation and the proof. If the ownership is not known it need not be stated, but in such a case that it is not known must be alleged.” This rule, as stated in the text of Law and Procedure, is fully supported by the appellate courts of many States — Alabama, California, Connecticut, Florida, Iowa, Kansas, Mississippi, New York and many other States.

As to whether or not the ownership of the building is an essential allegation in an information or indictment charging the offense of burglary in the second degree, is no longer an open question in this State.

In State v. Jones, 168 Mo. 398, the prosecuting attorney of Stoddard- county undertook to charge the offense of burglary under the same section upon which the information in the case at bar is based. In the information in that case it was charged that the defendant did break and enter the store of the Drysdale-Ulen Hardware Compan3q there situate, the same being a building in which divers goods, merchandise, etc., were then and there- kept for sale and deposited. The information in that case was held fatally defective for the reason, that the ownership of the building was not sufficiently alleged. Gantt, J., speaking for the court, in discussing the proposition, said: £iIt has always been necessary to allege and prove the ownership of the house charged to have been burglarized and the ownership of the chattels alleged to have been stolen. [2 East P. C. 650.] Where ownership is laid in a corporation, the fact of the incorporation should be alleged, and this is not affected by tbe fact that proof of the existence of tbe corporation cle facto will sustain tbe charge. As nothing is to be left to intendment, the defendant is entitled to know whether the State intends to show ownership in a firm composed of individuals or in a corporation. In this case he raised the objection in Jus motion in arrest, but it has often been ruled that he may take advantage of the defect in the indictment in this court for the first time. [State v. Patterson, 159 Mo. 98; Wharton’s Crim. Law, secs. 1828 and 1833; 2 Russell on Crimes, p. 100; Wallace v. People, 63 Ill. 451; 1 Bishop’s Crim. Prac. (3 Ed.), sec. 682; State v. Mead, 27 Vt. 722; Cohen v. People, 5 Parker’s C. R. 330; 2 Archbald’s Crim. Pl., 359; White v. State, 24 Tex. App. 231; Thurmond v. State, 30 Tex. App. 539; McCowan v. State, 58 Ark. 17.] There are cases to the contrary in other States, but in the absence of a statute we are relegated to the common law, and we hold the information bad in substance in failing to allege the names of the co-partners if the Drysdale-Ulen Hardware Company was a firm, and if a corporation, in not alleging it was a corporation.”

The rule announced in the case last cited was expressly approved and followed in State v. Horned, 178 Mo. 59.

While this defect in the information, applicable -alone to the charge of burglary, was not called to our attention by counsel for appellant, yet it is the duty of the court to review the record and, if the judgment is erroneous, to so state. It follows from what has been heretofore stated, based upon the authorities cited, that the information, in so far as it applies to the charge of burglary,- is fatally defective and will not support the judgment inflicting the punishment upon defendant for the commission of that offense. In this cause, however, there is embraced a proper charge of the commission of the offense by the defendant of grand larceny; hence, we are led to the consideration of the complaints of appellant occurring upon the trial.

I. It is insisted by appellant that there was no proper or sufficient identification of the goods in the possession of the defendant as being the goods which were stolen from Jacob Louis. It is sufficient to say upon this proposition that the prosecuting witness, Jacob Louis, identified the goods which were found in the possession- of the defendant, as his property. There is no testimony contradicting his identification; he was fully cross-examined upon the question of the identity of the goods, and in whatever particular his examination in chief is weakened by the cross-examination was entirety a matter for the jury, and the testimony upon the question of identity of the goods in the possession of the defendant was ample to authorize the court to submit that question to the jury.

The opinion or belief of witnesses as to identity of persons or things, when such opinion or belief rests upon, facts with the witness’s own knowledge, is competent evidence, although the witness will not testify positively to such identity, and testimony of this character is at least a sufficient foundation for the submission of the question to the jury and to allow them to finally determine the ultimate fact as to whether or not the goods found in the possession of the defendant were in fact the goods stolen from the prosecuting witness. [State v. Cushenberry, 157 Mo. 168; State v. Howard, 118 Mo. 127; State v. Hopkirk, 84 Mo. 278; State v. Babb, 76 Mo. 501.] While the testimony of the prosecuting witness identifying the goods was sufficient to authorize the submission of the question to the jury as to whether or not the goods referred to by him were in fact the goods stolen from him, it by no means follows that the jury must accept his testimony as to identification as conclusive evidence that they were the goods stolen from the prosecuting witness, but they simply hear the testimony and then upon their final consideration determine for themselves as to whether the testimony upon the identification of the goods was sufficient to authorize them to find the ultimate fact, that the goods found in the possession of the defendant were in fact the goods stolen from the prosecuting witness, Jacob Louis.

II. It is insisted that the court committed error in giving instruction No. 3, which was as follows:

“Where property has been stolen, by means of a burglary, proven beyond a reasonable doubt, and recently thereafter the same property, or any part there-of, is found in the possession of another, such person, in whose possession the same is found, is presumed to he the thief who stole the same, and is also presumed to have used all means necessary to have secured access to and possession of such property, and if he fails to account for his possession of such property in a manner consistent with his innocence, or unless such presumption be overcome by direct evidence, or by the attending circumstances, or by the character and habits of life of the possessor, or otherwise, then this presumption that the person in whose possession such property is found is the thief, and used all means necessary to secure access to such property, becomes evidence against him, so that unless such possession be explained or the presumption arising therefrom be overcome by evidence as aforesaid, to your satisfaction, then from such possession of property recently stolen you are -authorized to presume such person guilty of both the larceny and the burglary. ’ ’

Instructions embracing the same principle and substantially in form with the one here complained of, have frequently met the approval of this court. [State v. Owens, 79 Mo. 619; State v. Barker, 64 Mo. 282; State v. Sidney, 74 Mo. 391.] While in the cases of State v. Drew, 179 Mo. 315, and State v. Belcher, 136 Mo. 135, this court held that an instruction similar to the one in the case at bar should not have been given, yet, it will be observed that such ruling was based upon tbe reason that the testimony was insufficient upon which to predicate it. The rule of law respecting presumption arising from recent possession of stolen property was fully recognized in those cases. Hence, we take it that appellant’s complaint as to this instruction is not directed to the form of the instruction, but rather to the fact, as contended by him, that there was not sufficient testimony upon which to predicate it. We have care-v fully considered the disclosures of the record and have reached the conclusion, first, that the instruction was a proper one; secondly, that there was ample testimony upon which to base it. In determining the propriety of this instruction we are not confined to the mere fact that defendant had in his possession a new suit of underwear, which was only a part of the goods identified, which were stolen from the prosecuting witness, but it was clearly proper and highly important to take into consideration such- possession in connection with any other circumstances which tended to show the unlawful possession, and that the defendant had wrongfully obtained such goods. In State v. Barker, 64 Mo. l. c. 285, it was said by this court: “The possession of a part of the stolen goods of the smallest value, in connection with other circumstances, might clearly fix the guilt of stealing all the goods upon the defendant.” To the same effect is State v. Davis, 73 Mo. l. c. 133, where it was said that “only a portion of the goods stolen was found in the possession of the defendant, but this fact, in connection with other concurring circumstances, was sufficient to warrant the jury in finding him guilty of stealing them all. ” We have in this case, in addition to the possession of a part of the stolen goods, the admission of the defendant to the police officer that he had given one pair of shoes to a man named Bishop to sell to Levy’s pawnshop, and the truth of the admission is emphasized by the fact that in this pawnshop one pair of shoes was found, which was identified by the prosecuting witness, Mr. Louis. In addition to this, the defendant made contradictory statements in respect to the manner of obtaining the goods and from whom they were obtained. He first stated that he had gotten them from John Richards and afterwards said he bought them from a white man, and finally stated, in the conversation with the police officer, that he might just as well have gotten a wagon load. Confronted with this state of facts, it is too clear for discussion that the testimony was amply sufficient upon which to predicate instruction No. 3, and the court committed no error in giving that instruction.

The cases to which our attention is specially directed by counsel for appellant, State v. Warford, 106 Mo. 55; State v. Belcher, 136 Mo. 135 ; and State v. Drew, 179 Mo. 315, are not parallel cases, and a careful analysis of them demonstrates that they afford no support to the contention upon this proposition urged by counsel for appellant.

ni. Complaint is made to the remarks of the prosecuting attorney to the jury in the discussion of this cause. It will suffice to say of this assignment of error that the alleged improper remarks of the prosecuting attorney during his argument to the jury are not preserved in the bill of exceptions, hence are not subject to review by this court. The mere assignment of such remarks as one of the grounds in the motion for new trial is not sufficient to preserve such matter for review. [State v. Latimer, 116 Mo, 524; State v. Welsor, 117 Mo. 583; State v. Steen, 115 Mo. 474.]

IV. Finally, it is contended by appellant that the unfair and improper question propounded to Mrs. James as to whether or not the defendant had been in the penitentiary, before the defendant had testified in the cause, constitutes error on the part of the trial court. It cannot be denied that, until the defendant testified as a witness, this was an improper question, and the prosecuting attorney should not have propouned it; however, as the defendant subsequently testified and admitted that he had been in the penitentiary, we are unable to conceive how the mere asking of that improper question could have possibly done him any injury in the trial of this cause.

Y. The judgment in this cause is an entirety, and consists of a sentence by the court of the defendant to imprisonment in the penitentiary for the term fixed by the jury for both burglary and larceny. As before stated, this judgment is erroneous. The conviction of the defendant for grand larceny, which was embraced in the information, was proper, and the judgment should have been only a sentence for three years in the penitentiary as assessed by the jury for that offense. It is manifest that the error in this judgment is as to the length of time defendant was sentenced to the penitentiary; hence, this judgment should not be set aside or reversed for such error.

It is expressly provided by section 2720, Revised Statutes 1899, that a judgment should not be reversed or set aside by the Supreme Court for the reason that the judgment by virtue of which such person is convicted or from which he has prosecuted an appeal or writ of error was erroneous as to the time or place of imprisonment, but in such case it shall be the duty of the court or officer hearing such to sentence such person to the proper place of confinement, and for the correct length of time from and after the date of the original sentence. Proceeding to perform this duty as required by section 2720, supra, it is ordered and adjudged by the court that the defendant, George James, be confined in the penitentiary of this State for a term of three years, and that the sheriff of Jackson county, Missouri, or other officer having such prisoner legally in charge, shall, with all convenient speed, convey such defendant to the State penitentiary of the State of Missouri and deliver bim to the warden thereof, there to be imprisoned for the period of three years.

All concur.