author: KENNISH, P. J.

text:
    THE STATE v. LOUIS TIMEUS, Appellant.
    Division Two,
    February 7, 1911.
    1. CONSTITUTIONAL QUESTION: Not Determined Unless Necessary. The constitutionality of the statute which defendant is charged with having violated will not be determined unless the case cannot be properly disposed of upon any other theory.
    2. INFORMATION: Employment Agency: No Allegation of Three Days. An information drawn under that part of the statute (See. 7801, R. S. 1909) concerning employment agencies^ which, makes it an offense for any person to fail within three days to procure acceptable employment for an applicant, and, upon demand, refuse to return the money paid by the applicant for the employment, is fatally defective, if it fails to charge that defendant failed to procure acceptable employment within three days, or that he refused, upon demand, to return the money he had received.
    3. -: -: Deception. And if the information is drawn under that part of the statute which makes it an offense to promise or advertise to furnish employment to another, and in pursuance of the promise or advertisement receive money, and shall he guilty of any -deception to the person applying for employment, it is bad if it fails to charge that defendant was guilty of deception. That is an essential ingredient of the offense, and the information in this case does not charge deception in so many words, or such acts and conduct as constitute deception.
    4. -: -: - — : Acceptable to. Applicant. If the applicant for employment, upon the representation by the employment agent that there wa's acceptable employment for him at a certain place, went to such place, and by reason of some like or dislike, or some whim, or from mere caprice, concluded the employment was not acceptable, be cannot by such a mental process transform the agent’s opinion into a falsehood and subject him to prosecution. An allegation that the agent stated to the applicant that there was acceptable employment at the place that would be acceptable to him, and that he went there and the employment was not acceptable to him, not charge deception.
    5. -: General Rule. It is a constitutional right of a defendant to be informed of the nature and cause of accusation against him. It is a settled rule of criminal procedure that an information must charge every essential fact constituting the offense.
    Appeal from St. Louis. Court of Crimiual Correction.— Hon. Wilson A. Taylor, Judge.
    Reversed.

      Richey & Allison for appellant.

      Elliott W. Major, Attorney-General, and Chas. G. 'Revdie, Assistant Attorney-General, for the State.
    (1) The act of cheating and defrauding has been denounced as a crime from the earliest period. ’ Statutes enlarging the boundaries of the common law and extending their provisions to new classes of cheats and frauds perpetrated by particular described means have been frequently enacted and uniformly upheld. An examination of our statute against various phases of criminal fraud furnishes ample authority for this statement. In the exercise of its police power the State has authority to regulate trade and business and to prescribe the means of pursuing one’s occupation so as not to permit the perpetration of fraud, or the infringement of the rights of others. The enactment of the statute in question was but an exercise of that power. If the Legislature has the power, which no one questions, to declare it a crime to obtain money on false representations relating to present or past conditions, it likewise has the power to denounce as a crime the act of securing the confidence, and afterwards the money, of a person by other means of deception, such as conducting an employment agency, and, in that connection, agreeing to procure a certain kind of employment for another, practicing in that relation fraud and deception, and then refusing to carry out the agreement or return the consideration. The enactment of this statute is so clearly within the power of the Legislature that we do not deem it necessary to cite authorities in support thereof. (2) The information is based upon Sec. 7801, R. S. 1909, which section seems to provide four different methods of committing the offense for which punishment is prescribed — these methods being: (1) Every person who shall agree or promise, or.(2) who shall advertise ... to furnish employment, and, in pursuance of such (1st) agreement or promise, or (2d) advertisement, shall receive any money and who shall be guilty of any deception to any person applying for employment; or (3) who shall direct any female applying for employment to any house of prostitution, assignation house or other immoral resort; or (4) who shall fail within three days to procure acceptable employment for an applicant and, upon demand, refuse to return the money paid by an applicant for employment. It is rather difficult to determine from the allegations of the information whether the draftsmen intended to charge an offense under the first or fourth subdivision of the section, or jointly under both. If under the first, the statute seems to indicate that it is necessary to allege some method of deception practiced in order to charge all the elements of the crime.. Under the fourth subdivision it seems perhaps necessary to charge that he ‘ ‘ failed within three days to procure acceptable employment for the applicant and refused, upon demand, to return the money paid by the applicant. ’ ’ Since the information does not allege the demand for the return of the money, or that the failure to procure employment occurred within three days, we are of the opinion that the sufficiency of the information must be measured by the requirements of the first subdivision. In this connection the information charges deception in that appellant “sent Edward Baron to Alamosa, Colorado, stating that there was acceptable employment at said place, and that said employment would be acceptable to said Edward Baron, whereas in truth the said employment was not acceptable to said Edward Baron, as he ascertained when arriving at Alamosa, Colorado.” It seems to us clear that to secure the confidence and money of an applicant, promise and assure him an acceptable and suitable position in a distant part of the country, and then send him to that remote territory upon assurances that acceptable employment awaits his arrival, is a deception of the rankest sort and within the purview of the statute when it develops that the assurance and promises are false, the trip unavailing, the time lost, and the applicant left among strangers to shift for himself and to arrange for his return home. In our opinion the information alleges facts sufficient to constitute an offense under the first subdivision.
   KENNISH, P. J.

The defendant was convicted of violating section 7801, Revised Statutes 1909, which declares certain acts of employment agents a misdemeanor, and prescribes a punishment for a violation thereof. Because of constitutional questions having been raised, at the trial, the defendant, after unsuccessful motions for new trial and in arrest, was granted an appeal to this court.

The defendant filed a motion to quash the,information, which was overruled, and in that motion, as well as in the motions for new trial and in arrest, challenged the sufficiency of the information, and the constitutionality of the statute upon which the information was based.

Section 7801, under which the defendant was prosecuted, is as follows: “Elvery person who shall agree or promise or who shall advertise through the public press, or by letter, to furnish employment or situations to any person or persons, and in pursuance of such advertisement, agreement or promise, shall receive any money, personal property or other valuable thing whatsoever, arid who shall be guilty of any deception to any person applying for .employment, or who shall direct any female applying for employment to any house of prostitution, assignation house or other immoral resort, or who shall fail within three days to procure acceptable employment for an applicant, and upon demand refuse to return the money paid by the applicant for employment, shall be deemed guilty of a misdemeanor,” etc.

The charge in the information is: “That Louis Timeus, in the city of St. Louis, on the 26th day of August, 1908, did agree with and promise to one Edward Baron to furnish acceptable employment and to procure a situation to' and for said Edward Baron, and in pursuance of said agreement and promise, did receive of and from the said Edward Baron, the sum of five dollars, lawful money of the United States; that the said Louis Timeus did send the said Edward Baron to Alamosa, Colorado, stating that there was acceptable employment at said place and that said employment would be acceptable to the said Edward Baron. Whereas, in truth the said employment was not acceptable to the said Edward Baron, as he ascertained, when arriving at Alamosa, Colorado, and the said Louis Timeus did fail and refuse to return to the said Edward Baron the sum of five dollars paid for said employment, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State.”

The first contention urged by appellant in this court is that the information is insufficient, and wholly fails to charge him with the commission of any offense.

If this contention be sustained, it will not be necessary to pass upon the constitutionality of the statute, under the well recognized rule of law that a court will decline to pass upon the constitutionality of a legislative act, unless the case cannot properly be disposed of upon any other theory. [State ex rel. v. Brown, 141 Mo. 21; 8 Cyc. 798.]

The statute is levelled against three classes of offenders: First: Every person who shall agree, promise or advertise to furnish employment to another, and in pursuance of the promise, agreement or advertisement, receive money, property or other valuable thing, and shall be guilty of any deception to the person applying for employment. Second: Every person who shall direct any female applying for employment to any house of prostitution, assignation house or other immoral resort. Third: Every person who shall fail within three days to procure acceptable employment for an applicant, and, upon demand, refuse to return the money paid by the applicant for employment.

The information was clearly intended to charge the commission of the offense by acts embraced in either the first or third of the foregoing classes, but it is difficult to determine under which of those two classes the offense was attempted to be charged.

If it was intended to ’ charge the defendant with the acts denounced in the third class, the information is clearly bad, as it contains no allegation that the-defendant failed to procure acceptable employment within three days, or that defendant refused, upon demand, to return the money paid to him by Baron.

If it was intended to charge the acts embraced within the first class, then one of the essential ingredients of the offense is that the defendant was guilty of deception to the person applying for the employment.

It is contended by the State that, although the information does not, in direct language, charge deception to have been practiced upon the applicant by the defendant, it does allege facts charging the defendant with such acts and conduct as to constitute deception, as contemplated by the statute.

This contention cannot be upheld, for-the reason that the information does not charge facts showing any deception. That part of the information which it is claimed charges the defendant with having been-guilty of deception, is as follows: “That the said Louis Timeus did send the said Edward Baron to Alamosa, Colorado, stating that there was acceptable employment at that place and that said employment would be acceptable to the said Edward Baron. Whereas, in truth the said employment was not acceptable to the said Edward Baron, as he ascertained when arriving at Alamosa,' Colorado. ’ ’

The defendant is thus charged with making two statements: First, that there was acceptable employment at Alamosa; second, that said employment would be acceptable to said- Baron. The truth of the first statement is not denied, but it is charged that the employment was not “acceptable to said Baron.” The alleged deception thus resolves itself into an expression of opinion by the defendant that the employment •Would be acceptable to Baron, and the conclusion or opinion of Baron that the employment was not acceptable to him. What were the facts concerning which Baron was deceived? What false statements of fact, if any, were made by the defendant? What facts rendered the employment unacceptable to Baron? If Baron, by reason of some personal like or dislike, or by reason of some whim, or from mere caprice, concluded that the employment was not acceptable, it certainly cannot be maintained that by such a mental process Baron could transform defendant’s opinion into a falsehood and subject him to prosecution for having been guilty of deception.

If the defendant was to be tried for a false statement of facts to Baron, it devolved upon the State to charge and prove such statement, and to charge and prove its falsity.

It was. the constitutional right of the defendant to be informed of the nature and cause of the accusation against him, and this guaranty was not complied with by the general language of the information in' this case. It is a well settled rule of criminal procedure that an indictment or information must charge every essential fact constituting the offense. In 1 Bish., Crim. Proc., sec. 81, the rule is stated in the following language: “The doctrine of the courts is identical with that of reason, namely, that the indictment must contain an allegation 'of every fact which is legally essential to the punishment to be inflicted. This doctrine pervades the entire adjudged law of criminal procedure. It is made apparent to our understandings, not by a single case only, but by all the cases. Wherever we move in this department of our jurisprudence, we come in contact with it. We can no more escape from it than from the atmosphere which surrounds us.”

In State v. Hayward, 83 Mo. 299, the rule thus stated by Bishop was quoted with approval and followed. In that case, the question before the court was the sufficiency of an information, charging a misdemeanor. The information charged the defendant with circulating obscene literature. The court held that it was not sufficient to charge that offense in the language of the statute, but that the objectionable language found in the alleged obscene literature should have been set out in the information.

In State v. Thierauf, 167 Mo. 429, the defendant was prosecuted by information, for a misdemeanor, the charge being the sale of a patent medicine, which was, in part, an imitation of another well known patent medicine. The information charged the offense - in the language of the statute, but was held insufficient because it failed to charge what part of the label upon the medicine was an imitation of the other alleged well known patent .medicine. The court, in its opinion, said: “It is a cardinal principle in criminal pleading that it must contain an allegation of every fact which is essential to the punishment to be inflicted.”

Tested by the rules of criminal procedure, and by the foregoing authorities, the information is wholly insufficient to constitute a valid charge under the statute.

The judgment is reversed and the defendant discharged.

Ferriss and Brown, JJ., concur.


source: Caselaw Access Project

author: FERRISS, J.

license: Public Domain

text:
    THE STATE v. H. J. WARREN, Appellant.
    Division Two,
    February 7, 1911.
    1. RAPE: Insane Woman: Information. An information charging that defendant upon a certain “female, unlawfully, violently and feloniously did make an assault, and her; the said . . , then and there unlawfully, forcibly and against her will, feloniously did ravi'sh and carnally know,” sufficiently charges the crime of rape upon an insane married woman.
    2. -: -: Defendant’s Knowledge: Sufficient Evidence of His Guilt. The evidence in this case was sufficient to support a finding that prosecutrix was so mentally deranged as to he incapable of understanding the moral nature of the sexual act, or of giving assent thereto. But to sustain the conviction there must he some evidence tending to show that defendant knew of this mental Infirmity of prosecutrix and took advantage of it, or that he intended to have carnal knowledge of her body by force, if necessary, and regardless of her consent. And in this case there is no substantial evidence tending to support either proposition.
    3. -: -: When Carnal Knowledge is Rape. Carnal knowledge with a woman incapable, from mental infirmity, of giving consent, is rape, unless the man is ignorant of her infirmity and its extent, believes he has her consent, and has no intention of having intercourse without her consent.

      4. -: -: Burden on State to Show Her Insanity and His Knowledge. Where a woman yields an apparent assent to the act of sexual intercourse, the burden is on the State to prove that at the time of the act 'she was incapable, because of men- . tal disease, of assenting to or dissenting from the act, and that the defendant knew of such incapacity.
    5. -: -: Evidence of Insanity: Defendant’s Knowledge. Testimony showing prosecutrix’s upright family history, her virtuous character and good name, and her erratic and insane condition a few hours after the alleged sexual offense, may 'satisfy the jury that she did not at the time of the act comprehend its moral nature, and hence could not give her assent. But if none of these things were known by defendant, and he could only judge of her mental condition from her manner and conversation at the time of the act, and there is no proof® tending to show that at that time she. was so mentally disturbed as to be incapable of consenting to the sexual act, and what defendant did was with her apparent assent and approval, there can be no conviction.
    7.--: -: Degree of Insanity: Instruction. An instruction which tells the jury that “before you will be warranted in finding the defendant guilty of rape, . . you must believe from the evidence, beyond a reasonable doubt, that the defendant had sexual intercourse” with prosecutrix, that at the time she was insane, and “that her insanity was of such a character as to be readily recognized by a person of ordinary intelligence in conversation with her,” is erroneous, for two reason's: first, mere insanity, even if known, does not make the act rape; it must totally destroy the capacity to consent; and, second, the defendant must know that there is no capacity to consent; this knowledge may be inferred from facts and circumstances in evidence, but the jury must find as an . ultimate fact that defendant did know.
    Appeal from Newton Circuit Court. — Eon. F. G. Johnston, Judge.
    Reversed and remanded.

      Geo. R. Clay and R. H. Davis for appellant.
    (1) An indictment or information against a defendant must contain an allegation of every substantive fact which, the State is required to prove in order to secure a conviction. State v. Murphy, 141 Mo. 270; State v. Green, 111 Mo. 585; State v. Reed, 117 Mo. 604; State v. Evans, 128 Mo. 406; State v. Blan, 69 Mo. 317. (2) It devolves upon the State to prove beyond a reasonable doubt that the alleged injured party was so mentally deranged that she could not, at the time of the sexual act, give her consent. (3) Also to prove that defendant knew he had not her consent to the sexual act. 2 Bishop, Cr. Law (8 Ed.), sees. 1121, 1123; State v. Cunningham, 111 Mo. 382. (4) A judgment of conviction will not be permitted to stand when there is no other proof of the corpus delicti than the uncorroborated extra-judicial confession of the accused. 1 Bishop on Cr. Proc., see. 1058; State v. Gorman, 54 Mo. 526. (5) Instructions 1 and 2 do not properly declare the law.. 2 Bishop, Cr. Law (8 Ed.), sees. 1121,1123. (6) Instruction 8 is erroneous.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) Sexual intercourse with an unsound or idiotic woman whose mind, to the knowledge of the man, is totally incapable of consenting to the act, 'is rape, though she submits to the act without resistance, for in such a case the intercourse is without her consent and against her will. 23 Am. and Eng. Ency. Law, sec. 7, p. 856. The mental condition of the woman is an important consideration in determining whether her submission is a matter of consent. State v. Huff, 164 Mo. 480; State v. Parr, 28 la. 397; State v. McDonough, 104 la. 6; R. S. 1909, sec. 4471. If a female is weak-minded and consents to the intercourse from animal instincts or morbid desires, the act is not rape. People v. Crosswell, 13 Mich. 427; State v. Cunningham, 100 Mo. 382; Reg. v. Connolly, 26 U. C. Q. B. 317. Absence of consent may be shown by proving that the woman was the subject, of mania or idiocy, or asleep, or in a state of stupefaction or unconsciousness, when the act of intercourse took place. 10 Cyc. Ev., p. 585, sec. 2. (2) The information is sufficient, valid and properly charges the offense. State v. Goodale, 210 Mo. 275; State v. Burries, 126 Mo. 565; State v. Dilts, 191 Mo. 665. (3) The authorities hold to the rule: First. That if she was incapable of expressing consent or dissent, or of exercising any judgment upon the matter from imbecility of mind or defect of understanding, then appellant would be guilty. State v. Williams, 149 Mo. 496; Reg. v. Fletcher, 8 Cox 131; Reg. v. Ryan, 2 Cox 115; Wharton on Crim. Law (9 Ed.), sec., 560; People v. Griffin, 117 Cal. 585. Second. If the mind of the insane or idiotic woman was incapable of consenting to the act, though she submits to the act without resistance, the man must have knowledge of the condition of the mind of the woman at the time. Crosswell v. People, 13 Mich. 427; Reg. v. Connolly, 26 U. C. Q. B. 317. Resistance on the part of the female is not essential. State v. Tarr, 28 la. 397.
   FERRISS, J.

The defendant was convicted in the circuit court of Newton county of the crime of rape alleged to have been committed November 7, 1909, upon the person of Narcissa Foster, a married woman, and his punishment fixed at six years in the penitentiary. The trial- proceeded upon the following information :

“N,ow comes Albert D. Bennett, prosecuting attorney within and for the county of Newton, State of Missouri, under his oath of office and upon his information and belief informs the court, and presents and charges to the court, that H. J. Warren, on the 7th day of,November, A. D. 1909, at tbe county of Newton and State of Missouri, in and upon one Narcissa Isabella Foster, a female, unlawfully, violently and feloniously did make an assault, and her, the said Narcissa Isabella Foster, then- and there unlawfully, forcibly and against her will, feloniously did ravish and carnally know, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.”

The evidence for the State preserved in the record shows that at the time of the trial, in March, 1910, the prosecutrix was nineteen years old, had been married over two years,"had been in an insane asylum once before she was married and once afterwards, three or four months at a time, the last time being six or eight months prior to the alleged rape. Her mind, according to her husband’s testimony, “has been fairly well since we were married.” The maternal grandmother and one maternal aunt were in the asylum at the time of the trial, and had been there twelve years. The following question was asked of her father: “I will ask you what has been her mental condition?” A. “Well, it has been bad. I believe this is the third time she has been this way.” Also, Q. “And she was discharged as cured by the asylum authorities?” A. “I suppose so.”

Plrosecutrix had had no children. On November 3, 1909, prosecutrix paid a visit to the home of her parents, whom she had not seen for a year and a half, going there by train alone. When she left her husband on this occasion there was nothing unusual in her condition. She was talking a good deal about going home. She stayed at her father’s house Thursday; Friday and Saturday, and was in a normal condition during this time, save that on Saturday, when she left to meet her husband, as she claimed, at Neosho, “she seemed a little bit restless.” During this visit she seemed to be in average health. There had not been anything unusual in the letters which she frequently wrote home, except that her last letters showed nervousness in the handwriting. On the last night of her visit she seemed a little restless, and wanted to sit np and talk, but there was nothing unusual in her manner of conversation. Her father and mother drove her to the railway station in a buggy on Saturday, November 6th, bought her a ticket to Neosho, and put her on the train which left the station at 5 p. m., and she made the journey alone. On November 3d the husband left his wife at home, and went to Mosely Mines, it being then understood that she was to visit at her father’s until the Saturday following. The train was due at Neosho about 12:30 Sunday morning, November 7th. Whether the train was late does not appear. At about 2 o’clock that morning the prosecutrix appeared at the Central Hotel, in Neosho, with the defendant, who registered his own name. The proprietor, J. B'. Loher, asked him, “Is this your wife?” He answered, “Yes.” Then, at Loher’s request, defendant added to his name,the words “and wife.” Upon it being stated that he registered from Springfield, the woman said, “I am not from there,” or something of that kind. The defendant told her, “That is all right.” The following testimony, in addition to the above, was given by Loher:

“Q. What was her actions at that time? A. Well, she.was talking pretty loud when she came in; kept talking loud along. I was rather under the impression she was full of dope of some kind, cocaine, or something of that kind, the way she was talking. Q. Did the defendant talk much? A. No, he didn’t have much to say. Q. How did she talk, as to whether she was talking loud or low? A. She talked loud. Q. State whether or not she was talking rapidly or slowly? A. She Was talking pretty rapidly. Q. Then, what did you do after they registered? A. I took them to room number eight. Q. State whether or not they both went in the room? A. Yes, sir. Q. How many beds in that room? A. Just one. Q. You may state to the jury what happened, if anything that you knew about, whether or not as to the noise? A. I was down stairs, and I could hear them talking, especially her. I could not hear him very much. Once in a while I could hear him say something, but could not distinguish what they were saying. They kept it up all the time; and about six o’clock in the morning, they kept it up so, I was upstairs, and I didn’t know that she had gone out of the room, but she came running upstairs. She had got out, and went down stairs, and I think went to a drug store. She came back and went to the room. I followed them right to the room, and opened the door, and he was in bed. I told him I wanted him to get up and pay his bill, and get out of there; that he was creating too much disturbance. He said he would get up after a bit. I said, 'You will get up right now; I.will stay right here until you get up and pay your bill and get out of here.’ So he got up. Q. Was there any bed made down, or anything? A. No, sir.’’

At the time they left the hotel, Loher says, “she was talking wild all the time. I can’t remember what she did say; she was talking loud. ’ ’

There was no other material testimony in chief of eye-witnesses introduced by the State as to the conduct or conversation of prosecutrix prior to six o’clock, Sunday morning, November 7th.

The State’s testimony in chief showed furthér that on Sunday, the 7th, at eight or nine o’clock, the prosecutrix was found wandering on the streets of Neosho in a state of mental aberration. The sheriff testified that she told him of being robbed on the train, and that he thought her crazy; that he sent for the city marshal, and, upon what she and others said, arrested defendant and put him in jail; that she talked wildly, saying her husband was a fugitive from justice and a deserter from the army, and that his brother killed a man. He could not remember all she said.

Johns Williams testified that he met her on the street. She was walking along, talking or making some kind of a noise, and stated to him that she was hunting for something to eat. She said she had money, and showed him a quarter, and then said, “I don’t want to talk to you at all. I have already laid my case before the detectives, and the detectives are working-on it.” The witness thought she was crazy.

B. J. Perriman, city marshal, testified he saw prosecutrix on the street, and a crowd there laughing and amusing themselves at her talk. She was “talking kind of ‘bug-housey,’ I would call it.” She denied to this witness that the defendant had had intercourse with her.

A. J. Thomas, deputy sheriff, testified as follows:

“Q. I will ask you if you saw Mrs. Foster? A. Thé first time I seen her was that Sunday, down at a house on the corner of Kohler and Mill street. Q. What was she doing? A. She was laying down the first time I seen her. Q. Where was she lying? A. On the little porch. Q. Was anyone living there? A. Yes, sir, some people lived there at that time. Q. What time of day was that? A. I am not sure, but I think in the morning — just a while before noon. Q. Did you talk any with her? A. Yes, sir. Q. While she was lying there? A. Yes, sir. Q. State what her attitude was — her condition, so far as you can describe it? A. She seemed to be in a very distressing condition mentally and physically, both. She said she had been robbed. Somebody had taken, her statement was, over four dollars from her. And I asked her who it was done it, and she said she didn’t know, but she said she thought it was the Parker boys. I said, ‘Where are the Parker hoys?’ She says, ‘They live out in the country somewhere.’ Then she said somebody gave her some money. She said her father gave her some money. I asked her how much he gave her, and she said $4.50,1 believe it was. I asked her if they taken it all, and she said, I think, they taken $3.50; and I talked-with her quite a while, and went to a lady’s house and brung her some water. She complained about being thirsty, and I rather thought at the time that she had taken dope, cocaine, or something of that kind; and I told one or two parties there at the time I thought that was what was the matter with her; and I asked her if there was any arrangements made to get her out to where she wanted to go. She told me she wanted to go out to her brother-in-law’s, George Brand’s.”

The prosecutrix was examined by two physicians on Sunday and Monday. Each testified that, in his opinion, judging from her talk and appearance, she was crazy. One doctor who examined her on Sunday, called it, according to the transcript, “maniacal or delusive” insanity. He said that she had fever, which he suspected was typhoid, and that such disease is sometimes accompanied by mental derangement. In his opinion, prosecutrix did not have sufficient intelligence to comprehend and consent to sexual intercourse. This question was asked him: “From the condition you observed on Sunday, and from your experience as a physician and in your opinion, what would you say as to her condition on Saturday prior to that?” Answer: “In my opinion it was not materially different from the condition Sunday or Monday.” He further testified that he thought her condition would impress an average layman, who talked with her, with the idea that she was insane. Q. “You are not prepared to say that, twenty-four hours previous, or ten or twelve hours previous, her condition was of the kind you have described?” A. “No, sir, I could not say it was.”

Doctor Roseberry, county physician, who examined the prosecutrix on Monday, November 8th, testified that she was insane at that time, and was apparently suffering from “the maniacal form of delusional insanity, where all the mental activities are excited.” He testified that she talked about being robbed, and said that her husband was a fugitive from justice. Witness thought she might consent to sexual intercourse, but he didn’t think she would realize what she was doing, or have a conception of the moral wrong. He stated that he knew nothing of her condition on Saturday save by inference. (The witness did not state what the inference would be.)

The prosecutrix, after submitting to the examinations above referred to, was removed to an insane asylum, and did not testify in this case.

Several witnesses for the State testified that the defendant admitted that he had intercourse with the prosecutrix at the hotel, but that, he also said at the same time that he did not think she was crazy. One of the State’s witnesses testified that the defendant,' in this conversation, denied having had intercourse with the prosecutrix.

The evidence shows that this unfortunate woman was a church member, and possessed an unblemished character.

At the close of the case for the State the defendant asked the court to instruct the jury that under the law and the evidence they should find the defendant not guilty. The request was refused, defendant excepting to the court’s ruling.

For the defense, Ivey Ritchey, a girl employed in the hotel, testified the following:

“Q. What room of that hotel did you occupy? A. Number twelve. Q. Is number twelve and number eight adjoining rooms? A. No, my room was across the hall. Q. Was you in a position that night that you could know or hear, and know the actions of this defendant, Warren, and Mrs. Foster? A. No, I could not see them, but I could hear them. Q. Did you see them at any time? A. Yes, sir. Q. Tell the jury how you saw them? A. I was passing the door as I went down to work, and the door was open and I saw them. Q. What-were the positions-of those parties-on that night? A. He was sitting on the side of the-bed, and she was standing before the mirror. Q_ Later on did you see her again? A. Yes, sir; about six o’clock in the morning I saw her. Q. What was her position at that time?' A. She was in the office, wanting to know the way to a drug store. Q. Did you see her at any time when she was in room number eight that evening, with a pillow, lying on the floor? A. No, she was standing before the mirror. Q. What, if anything, do you know, either from their conversation or their actions, about the defendant having intercourse with Mrs. Foster that night? A. In my opinion, she would not let him. Q. Did you hear a conversation there? A. Yes, sir. Q. Tell the jury what that conversation was. ' A. She wanted him to go to Springfield, and they would get married. She was a married- lady, I heard, and she wanted him to go to Springfield, and she would get a divorce and, be married in a short time; and he, of course, said he didn’t want to, and said that he didn’t have means to support a wife, and he didn’t want to get married then anyway; and she said she would help him if he would go with her to Springfield; but he said he would not go; and that is about all, of course, that I heard.”

This witness, on re-examination, testified: “Q. You saw this woman there in the office? A. Yes, sir.Q. And saw her in her room? A.- Yes, sir. Q. And. heard her conversation there? A. Yes, sir. Q. 1 will ask you if you saw anything that indicated that she was insane? A. No.”

When the prosecutrix reached Neosho, Sunday morning, according to the testimony for defendant, she met at the station the defendant, who up to that time was an entire stranger to her; also some other men. One of these, Fred Huddleston, testified for defendant as follows:

“Q. Are you acquainted with Mr. Warren? A. Yes, sir. Q. Was you acquainted with him on the 6th day of November, 190-9? A. Yes, sir. Q. What business was he engaged in at that time? A. He wasn’t doing anything then. Q. What had he been engaged in? A. He had been operator at the Frisco. Q. Do you remember the occasion of this Mrs. Foster coming in on the train? A. Yes, sir. Q. You saw her that night? A. Yes, sir. Q. And saw Warren? A. Yes, sir. Q. State to the jury whether there was anything in the demeanor of Mrs. Foster over there at the. station, or elsewhere, that indicated to you that she was insane? A. No, sir, there was not.” On cross-examination, the witness testified: “Q. Now, then, you remember her coming in? A. Yes, sir. Q. Did she ride on the bus ? A. No, sir. Q. • What did she do ? A. Went into the depot. Q. Did you talk with this woman any? A. A little, yes, sir. I asked her if she wanted to ride up town. She said no; she wanted to go to the Mosely Mines. Q. That is all the conversation you had or heard her say? A. Yes, sir.”

' Henry McKnight, another witness for defendant, testified: “Q. I will ask you if you met this Mrs. Foster on Saturday, night', November the 6th? A. Yes, sir, Q. I will ask you if you talked with her? A. Yes, sir, I did. Q. I will ask you to state to the jury •if you saw anything in her conduct or in her conversation that would indicate to you that she was crazy? A. There was not. Q. Tell what she said and did. A. She asked me if I knew where Mosely Mines were. I told her I did, and she wanted to go ont to Mosely Mines, and wanted to know how far it was out there. I don’t remember just what all she did say now. She never said anything that I would take her to be insane, or anything like that. Q. Didn’t she want you to take her out to Mosely.? A. Yes, sir. Q. I will ask you if you didn’t get a rig for that purpose? A. No, sir. Q. I will ask you if you didn’t make arrangements to take her out there? A. I did make arrangements. Q. That was at her request? A. Yes, sir.” On cross-examination, the witness thus testified: “Q. That was done at the station there? A. Yes, sir. Q. Was you one of the two boys there that the conductor told to let her alone, that she was crazy? A. No, sir. Q. Did you see her when she first got. off? A. No, sir. Q. You are not in the livery business? A. No, sir. Q. And you was going to take her out— hire a livery rig and take her out? A. Yes, sir. Q. Why didn’t you take her? A. The other fellows beat us to it. Q. Who was going to help you? A. A fellow named Smith was going with me. Q. Is that the Smith that just got off the stand here? A. I don’t know. Q. A dark-complexioned fellow? A. A fellow that works on the train, cooks; he Was at that time cooking on a dining car. Q. He was going to help you take her out, and still neither of you were in the livery business. You can stand aside.”

Another witness, Clarence Smith, who came in on the same train with the prosecutrix, testified for defendant : “Q. What was her mental condition at that time — did you observe anything that would indicate to you that she was insane? A. She seemed like a very sensible woman to me. She didn’t seem crazy to me. Q. There was nothing in her demeanor or conduct that would indicate that she was insane? A. No, sir.” On cross-examination, be thus testified: “Q. Isn’t it a fact sbe was talking very loudly and buying a lapful of oranges? A. I came to notice her; it was between Granby and Neosho, and sbe bad a basket, and I was walking back through the car, and sat down. Q. By her? A. No, sir. And she began to say that somebody bad stole ber stuff what sbe bad to eat. Q. Bid you think somebody bad? A. I didn’t know. Q. So she was saying right on the train, where there was a good many people, that somebody was stealing what sbe bad to eat, and you think sbe was sane? A. That is all I beard ber say. Q. You are basing your opinion on what sbe said right there on the train where all these people was, and on that you are basing your opinion that sbe was sane? A. Yes, sir.”

The defendant testified that be never saw the woman before that night at the station, and that be took ber to the hotel at her' request “to take ber up there to a room.” He admitted that be stayed with her in the room from 2:30 a. m., to 6 a. m., but denied having bad intercourse with ber.

J. B. Loher, called in rebuttal, testified: “Q. Was there anything to indicate to you in ber appearance that sbe was insane at the time sbe entered that room? A. Well, I didn’t have any thought of ber being insane. The way she was talking and acting I thought sbe bad taken some kind of dope. Q. Sbe didn’t impress you as an insane person? A. I didn’t give that a thought. Q. Sbe didn’t act rational? A. No, sir, sbe was talking very loud and fast. Q. And at the time you drove them out sbe still was not acting rational? A. I couldn’t keep ber still at all.”

The following instructions, among others, wiere given by the court:

“1. The court instructs the jury that if you find and believe from the evidence in this case, beyond a reasonable doubt, that the defendant, H. J. Warren, at the county of Newton, State of Missouri, on or about the 7th day of November, 1909, did willfully and feloniously have sexual intercourse with one Narcissa Isabella Poster, and if you further believe and find from the evidence that at the time of such intercourse, if you believe it was had, the said Narcissa Isabella Poster was a person of unsound mind, and of such weak intellect and intelligence, that she could not and did not know or comprehend the nature and consequence of such an act, and could not understand right from wrong, you will find the defendant guilty of rape, and assess his punishment at. death or imprisonment in the penitentiary for a term of not less than five years.
“’8. You are further instructed that before you will be warranted in finding the defendant guilty of rape as charged in the information, you must believe from the evidence, beyond a reasonable doubt, that the defendant had sexual intercourse with Mrs. Poster; that at the time of such intercourse Mrs. Poster was insane, and that her insanity was of such a character as to be readily recognized by a person of ordinary intelligence in conversation with her, and unless you so believe from the evidence the State has proven these facts, you must acquit the defendant.”

On this record the defendant complains, (1) that the complaint is defective in that it fails to allege all the substantive facts which the State is required to prove; (2) that the demurrer to the evidence should have been sustained; (3) that the court erred in giving instructions numbered 1 and 8, asked by the State. It will be unnecessary to notice other errors assigned.

First: We think the information sufficient in form and substance.

Second: The claim that the evidence for the State is insufficient to support the verdict demands serious consideration by reason of the importance of the questions involved. In view of the testimony as to the prior good character of the prosecutrix, and the testimony concerning her condition on the day* following the morning of November 7th, as well as that of heir former mental condition ánd family history, there was ample evidence to support a finding that at the time of the alleged act of intercourse with defendant, Mrs. Foster was so mentally deranged as to be incapable of understanding the moral nature of the act, ojr of giving assent thereto. To sustain the conviction, however, the State must go further, and give some evidence tending to show that the defendant knew of and took advantage of this mental infirmity of. the prosecutrix, or that he intended to have carnal knowledge of her body by force, if necessary, and regardless of her consent. As to the latter proposition, there is no evidence that such was his intent. All that the defendant did was with her apparent assent and approval. Whether there is any testimony from which knowledge of her incapacity to consent could be imputed to the defendant is a question not free from difficulty. Reason and authority suggest the following principles as guides in the solution of this question:

1.. Carnal intercourse with a woman incapable from mental infirmity of giving consent, is rape, unless the man is ignorant of her infirmity and its extent, believes he has her consent, and has no intention to have intercourse without her consent.

2. Where the woman in point of fact yields an apparent assent to the act, the burden is on. the State to prove that at the time of the act she was incapable, because of mental disease, of assenting to or dissenting from the act, and that the defendant knew of such incapacity.

The following citations from the authorities support and illustrate the principles announced above

“Carnal intercourse with a woman incapable, from mental disease (whether that disease be idiocy or mania), of giving consent, is rape. But the question as to whether the mental disease, is such as to incapacitate the patient from assenting is one to he examined with great care. There are many persons laboring under mitigated insanity Who are incapable of making contracts, but who in a modified degree are responsible for crime. For a man knowingly to have intercourse with a woman of intellect thus impaired is no doubt péculiarly wrongful; yet if she be capable of consenting, and does consent, it is not rape. And a fortiori is this the case when the man has no knowledge that the woman’s intellect is disturbed. Hence, in such cases, if there be consent, a prosecution for rape cannot be sustained.” [1 Whart. Crim. Law, sec. 560.]

Mr. Bishop, in volume 2, section 1121, of his work on Criminal Law, says: “Where the idiocy is so profound as absolutely to incapacitate her to consent or dissent, the man who penetrates her, not supposing he has her consent, commits the crime.”

In the case of State v. Tarr, 28 Iowa 397, the facts showed that the girl in the case was of weak mind; could not talk so as to be understood; was not capable of taking care of or even dressing herself, and had been idiotic since birth. The court held that, although there was no proof that the defendant had prior knowledge of her condition, yet if she was so idiotic as not to be able to talk intelligibly, and if the defendant talked with her a while before the assault, the jury, might infer knowledge on his part of her mental irresponsibility. In this case the court lays down a rule as applicable to cases of this character, as follows: “The case before us falls rather within another class, where it is -held, as we believe, without dissent, that if the man, knowing the woman to be insane (or idiotic), should take advantage of that fact to have knowledge of her person, while her mental powers were so impaired that she was unconscious of the nature of the act, or was not a willing participator, the act would be rape, though distinct proof of opposition might be wanting.”

In State v. Cunningham, 100 Mo. 382, l. c. 394 this court says: “To constitute rape, the act must be intended to be done with force and without the woman’s consent, and if done with these intentional elements, it can make no difference that the woman- was insane and that the accused did not know she was incapable of giving her consent. Unless this is so, an insane woman or an idiot is at a great disadvantage in the hands of a ravisher. But if the man does not know that the woman is non compos, and from her conduct is led to believe he has her consent, we do not see how the act can be rape.”

In the case of Regina v. Connolly, 26 U. C. Q. B. 317, the following charge was given to the jury: “That if upon the evidence they were satisfied that the woman was of unsound mind, that she had no moral perceptions of right or wrong, that her acts were not controlled by the will, were in fact involuntary, she could not be said to be capable of giving consent, because by reason of her state of mind incapable of judgment and discretion; and the yielding on her part to force ought not, in view of such impotence of her will (and knowledge of her state by defendant), to be taken as an act' done with her will.”

In the ease last cited the court states the mental condition of the woman thus: “She was a married woman, with children, and was found to have acted at various times in such a strange manner as to furnish strong evidence of hallucination and delusion, warranting the jury in finding her, in popular language, insane. ’ ’

Under the facts stated above, there is no evidence (aside from the question of insanity) that the defendant intended to commit the act by force and without the consent of the prosecutrix. Therefore, in order to make a case, the record must show substantial evidence on the part of the State tending to prove that the prosecutrix was at the time incapable, by reason of insanity, of giving assent, and further, that defendant at the time knew of such incapacity. It would not be enough to show merely that she was weak-minded, and that the defendant knew that she was so. “The mere fact that a woman is weak-minded does not disable her from consenting to the act. . . . So long as the woman is capable of consenting, and does consent, the act is not rape, and this is true though the man may know that she is of weak intellect.” [State v. Cunningham, supra, l. c. 393.]

The real question is, assuming that the prosecutrix was so mentally infirm as to be incapable of giving assent, did the defendant, at the time, know of such incapacity? In answering this question, we are confined to the facts as they were apparent to the defendant at the time the act was committed. The testimony showing the family history of the prosecutrix, her virtuous character, and her condition on Sunday, after nine o’clock, might well satisfy the jury that the prosecutrix did not at the time of the act comprehend its moral nature, and could not give her assent. None of the facts shown by such testimony were known to defendant when the act was committed. He could only judge from the manner and conversation of the prosecutrix at the time of the act.

The State introduced no testimony, save that of one- eye-witness, J. B. Loher, showing her apparent condition when prosecutrix retired to room 8. We are of the opinion that there is nothing in the testimony of Loher, the hotel proprietor, tending to prove that the prosecutrix was at that time so mentally disturbed as to be incapable of consenting to the sexual act. She certainly did not produce that impression upon him. Upon his re-examination in rebuttal, he was asked this direct question: “Was there anything to indicate to you in her appearance that she was insane at the time she entered that room?” He answered: “Well, I didn’t have any thought of her being insane. The way she was talking and acting I thought she had taken some kind of dope. ’ ’ The only peculiarity in her manner noticed by him was that “she was talking very loud and fast.”

As to any inferences that may be drawn from the evidence of her prior and subsequent condition, such inferences, if considered at all as bearing upon defendant’s knowledge of her condition at the time in question, are, if anything, favorable to the defendant.

It is clear that at five o’clock, on November 6th, when prosecutrix boarded the train, her condition was apparently normal. There was nothing in her manner at the time to suggest to her parents that she was not fit to travel alone. ' In view of the undoubted fact that her condition was apparently normal on Saturday, the opinion expressed by the physician who examined her Sunday night, that her condition on Saturday “was not materially different from the condition on Sunday and Monday,” cannot have any force, especially as that opinion was much weakened in force on cross-examination. The "testimony of the physicians introduced by the State affords no basis upon which it can be fairly said that a non-expert observer in the position of defendant could know that the prosecutrix was insane to the degree of total incapacity.

We feel constrained to hold that the trial court erred in not giving an instruction to acquit at the close of the State’s ease.

Third: It is obvious from the foregoing discussion that instruction numbered 8 was erroneous in that it told the jury that mere insanity of a character to be recognized by a person of ordinary intelligence was enough to convict. There are two objections to this instruction. 1. Mere insanity, even if known, does not make the act rape. The insanity must totally destroy the capacity to consent. [State v. Cunningham, supra.] 2. The defendant must know that there is no capacity to consent. This knowledge may be inferred from facts and circumstances in evidence, but the jury must find as an ultimate fact that the defendant did know.

It follows from what has been said above that instruction number one should have been qualified by including, as an element of the crime, knowledge by the-defendant of the mental condition of the prosecutrix, defined in the instruction.

For the errors indicated, the judgment is reversed and the cause remanded.

Kennish, P. J., and Brown,. J., concur..


text:
    THE STATE v. CHARLES CANNON, Appellant.
    Division Two,
    February 7, 1911.
    1. MOTIONS: No Exception's: Review. Dilatory motions filed by appellant in tbe trial court will not be considered on appeal if neither they nor tbe rulings thereon are preserved in tbe bill! of exceptions.
    2. ARRAIGNMENT: 'Demurrer: Withdrawal of Plea. The filing of a demurrer to tbe information did not have the legal effect, of withdrawing the plea of not guilty previously entered, and' after the overruling of the demurrer it was not necessary torearraign defendant.
    3. MOTION TO ELECT: Two Counts: Gambling Device. Where-the information charged defendant with setting up and keeping-divers gaming tables and gambling devices, in two counts, the-only difference therein being that in the first the gaming table-described was a poker table with the paraphernalia incident to the playing of poker, and the second described a crap table and the dice used in playing a crap game, an averment in each that the defendant enticed and permitted divers persons to bet and play thereon did not make the count double, and the motion to require the State to elect on which of the several charges contained in each count it would proceed to trial, was properly overruled.
    4. -: -: -: Instruction to Convict Upon Both: Convicted of Only One. The offense may be charged in different counts to meet the evidence; but if both counts charge the same offense of setting up and keeping a gaming table and a gambling device, in one that the gambling, device was a poker table and paraphernalia incident thereto, and in the other that it was a crap table and dice, defendant cannot be convicted upon both counts in the same trial, and it is error to refuse to instruct the' jury that defendant cannot be convicted upon both counts. But if an instruction is given authorizing a conviction upon both, and the jury return a verdict of guilty upon one only, the error is not prejudicial.
    5. GAMBLING DEVICES: Poker Tables. The statute is not leveled simply against such gaming tables as are used in games known as “bank games.” It has been so often held that a poker table set up for gaming purposes comes within its provisions that the question is not open for further consideration.
    6. SUFFICIENT EVIDENCE: Defendant as Person Who Set Up Device, etc. Where the evidence is undisputed that a gambling device and gaming table had been set up and kept, at which a large number of persons played poker' for money, testimony by the witness in charge of the game that defendant had employed and paid him to take charge of the tables and had furnished him money when it was needed for use in the games; and by other witnesses that defendant’s coindictee, who was much in evidence around the gaming room and saloon, had furnished money to defendant to be used when needed in keeping up the games; that defendant was seen around the poker tables in charge of the game, sometimes playing himself and attending to the rake-off which went to the house, or standing around watohing the games; and that a few days before the date of the offense charged, he had painted the room and made other repairs, is substantial evidence of his guilt, and its weight and credibility were for the jqry; and though the main witness (the dealer) by his testimony showed himself an accomplice, yet if the court instructed the jury that his testimony was to be received with great caution, the judgment of conviction will not be interfered with.

      Appeal from Jasper Circuit Court . — Hon. Henry L. Bright, Judge.
    Affirmed.

      Clay & Davis for appellant.
    (1) Defendant was not rearraigned after the withdrawal of his plea of not guilty. (2) There is no evidence to support the verdict, and the peremptory instruction, requested by defendant and refused by the court, should have been given. The poker table in question in this case is not a gambling device within the meaning of Sec. 4750, R. S. 1909. State v. Etch-man, 184 Mo. 193; State v. Mathis, 206 Mo. 604; State v. Hall, 228 Mo. 456. A crap table, such as the evidence in this case shows the table at issue under the second count of the information to be, is a “bank” table. So, also was the crap table in the case of State v. Holden, 203 Mo. 581, a “bank” table. ,

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) The information is valid and sufficiently charges the offense in the language of the statute and is good. R. S. 1909, sec. 4750. The prohibition of the statute includes the setting up and keeping of any kind of gambling device adapted, designed and devised for the purpose of playing any game of chance for money or property. State v. Rosenblatt, 185 Mo. 114; State v. Mathis, 206 Mo. 610; Kelly’s Crim. Law, sec. 9'50; State v. Locket, 188 Mo. 418; State v. Hall, 228 Mo. 456. (2) The two offenses alleged in both counts of the. information were based upon Sec. 4750, R. S. 1909, and the court did not err in overruling appellant’s motion to quash. State v. Carragin, 210 Mo. 363. (3) The demurrer was properly overruled as the information was well enough. See authorities under 1. (4) The instructions are full,and complete and no complaint can be successfully alleged against them. State v. Eosenblatt, 185 Mo. 114; State v. Mathis, 206 Mo. 610. (5) The jury settled the conflict in the evidence, and this court will not interfere on that score.. State v. Matthews, 202 Mo. 148; State v. Tetrick, 199 Mo. 100; State v. Williams, 186 Mo. 128. There was an abundance of evidence to take the case to the jury.
   KENNISH, P. J.

At the February term, '1910, of the circuit court of Jasper county, the prosecuting attorney filed an information jointly charging the appellant, Charles Cannon, F. W. Potts and L. W. Smith, under section 4750, Eevised Statutes 1909, with the offense of having set up and kept divers gaming tables and gambling devices. The information charged the offense in the language of the statute and in two counts, the only difference in the counts being that the gaming table described in the first is a poker table with the paraphernalia incident to the playing of that game, while the second describes a crap table and the dice used in the playing of the crap game.

. The. record shows the filing of certain dilatory motions by the defendants, but as these motions and the rulings of the court thereon are not preserved in the bill of exceptions, they are not open to review on this appeal and need not be further noticed.

The defendants waived formal arraignment and entered a plea of not guilty. Before announcing himself ready for trial the defendant Charles Cannon moved the court for a separate trial and a severance was granted. Thereupon the defendant, Charles Cannon, demurred to the information on the ground that it did not state facts sufficient to constitute an offense under the laws of. this State, The demurrer was overruled and the defendant was put upon his trial, which resulted in a verdict of guilty under the first count of the information, his punishment being assessed at a term of two years in the penitentiary, and an acquittal on the second count. After the proper motions were filed and overruled, judgment was.pronounced, and the defendant appealed to this court.

The evidence for the State tended to prove these facts:

The Southern Club Saloon building is located on the corner of Church and Allen streets in Webb City, this State. It is a double, two-story structure, and at the time of the alleged offense one room on the ground floor was occupied as a dramshop, known as the Southern Club Saloon, and the other room on the ground floor was used as a pool hall.

The large room in which the defendant was charged with keeping gaming tables was upstairs over the pool hall and could be reached by two inside stairways, one leading up from the rear of the saloon and another from the front; also by a third stairway from the outside. This room over the pool hall, on the night of the 11th of December, 1999, and for some weeks before, was fitted up with poker and crap tables and had been used as a common gambling room. On the last mentioned daté, while gambling on both the poker and crap tables was going on, officers raided the place, found a large number of men therein, made several arrests, and seized the tables, gambling devices and paraphernalia used in carrying on the games. These tables and devices were produced in the court room at the trial, were referred to and .identified by the witnesses, and were introduced in evidence. They were tables adapted, devised and designed for the purpose of playing games of chance for money, property and poker chips, and were so used on the night of the 11th of December, 1909, and for several weeks prior to that date.

The defendant and his codefendant, Potts, were generally at this gambling room, and there was evidence that each had supplied money to continue the games at times when more money was needed for that purpose. Once or twice Potts had furnished the necessary money to the defendant when the latter was acting as dealer at the crap table. A. O'. Walker, a dealer at one of the tables when the raid was made, testified that he was employed and paid for his services at said gambling room by the defendant; that he had seen the defendant run the said poker table, sometimes playing and taking charge of the game, looking after the rake-off which went to the house, and that the defendant had furnished him with the sum of forty-two dollars and fifty cents that night to use in the game at the crap table.

The defendant testified in his own behalf and denied that he had employed Walker as a dealer at the gambling room, or that he had furnished Walker any money to be used in the games, and further denied that he. had any interest in the gambling rooms located over the Club Saloon or adjacent to it.

The defendant moved the court to require the State to elect upon which count of the information it would ask a conviction, both at the close of the evidence for the State and at the close of all the evidence. The defendant also moved the court to require the State to elect upon which of .the. several charges contained in each count of the information it would proceed to trial.

The court overruled the motions to elect, submitted the case to the jury upon instructions authorizing a verdict of guilty upon one or both counts of the information, or an acquittal upon one or both counts, accordingly as they should find and believe from the evidence. The jury returned a verdict of guilty under the first count and of acquittal upon the second count, as before stated.

I. The information and each count thereof properly charges the offense in the language of the statute, is in form as approved by this court, and the court did not err in overruling the demurrer. [State v. Chauvin, 231 Mo. 31; State v. Rosenblatt, 185 Mo. 114; State v. Mathis, 206 Mo. 604; State v. Lee, 228 Mo. 480.]

II. It is assigned as error that the defendant was not rearraigned after the withdrawal of his plea of. not guilty.

The record shows that the defendant waived formal arraignment and entered a plea of not guilty, and it does not show that this plea was withdrawn. The filing of the demurrer thereafter, did not have the legal effect of withdrawing the plea of not guilty, and after a ruling thereon a new arraignment was not necessary. [State v. Gieseke, 209 Mo. l. c. 340.]

III. Complaint is made .that the court erred in overruling defendant’s motion to require the State to elect upon which of the several charges contained in each count of the information it would proceed to trial.

Each count charged the setting up and keeping of one gaming table only, and the averment that the defendant enticed and permitted divers persons to bet and play thereon did not make the count double, and the motion to elect was properly overruled. [State v. Ames, 10 Mo. 743; State v. Nelson, 19 Mo. 393. See also State v. Mathis, 206 Mo. 604.]

IY. At the close of the evidence for the State and again at the close of all the evidence, the defendant moved the court to require the State to elect upon which count it would ask a conviction, and defendant’s instruction numbered 4, which the court refused, dedared the law to he that the jury, could not convict upon both counts of the information, although they should believe from the evidence that the defendant set up and kept both tables as charged in the two counts of the information. It is contended by appellant that the court erred in not requiring the prosecuting attorney to elect, and in refusing said instruction numbered 4.

The defendant’s instruction numbered 4, in so far as it declared the law that the defendant could not be convicted upon both counts, was a correct statement of the law applicable to the facts in evidence, and the court should have required the prosecuting attorney to elect upon which count he would ask a conviction, or have submitted'the case to the jury upon instructions authorizing a conviction under either count, as they found the facts to be, but not upon both. [State v. Carragin, 210 Mo. l. c. 371.] In the Carragin case, at the close of an exhaustive review of the cases of this and other courts upon the subject of the joinder of felonies in the same indictment or information, this court at page 371, speaking through Gantt, J., said: “We know of no case under our practice in which an accused may be tried and convicted of two distinct felonies except in the case of burglary and larceny, which is expressly allowed by statute.” It was held in the Carragin case that reversible error was committed by the trial court in instructing the jury that they might find the defendant guilty upon both counts of the indictment and in refusing to require the prosecuting attorney to elect. However, in that case the defendant was convicted under both counts, so that the error of the court was clearly prejudicial.

The counts in the information in this case charged the same offense, the gambling table and gambling device as described being the only difference, and it is always competent for the State to charge the offense and have the same submitted to the jury upon two or more counts when the offense is so “charged in the different forms to meet the evidence as it may develop at the trial, and but one conviction is sought. [State v. Carragin, 210 Mo. 351; State v. Hargraves, 188 Mo. 337; State v. Sutton, 64 Mo. 107; Kelley’s Crim. Law and Prac., sec. 203.]

The court was not in error in submitting the case to the jury upon both counts in the alternative and authorizing a conviction under either as they might find the facts to be. The error consisted in authorizing a conviction under both counts, and in thus treating the two counts as charging separate felonies, instead of the same felony charged in different forms. As the jury did not act upon the erroneous instruction, but convicted upon one count only, the question now before us is not, as in the Carragin case, as to whether a conviction upon both counts can be upheld, but rather, did the court properly instruct the jury and did the evidence warrant the verdict upon the first count, under which alone a verdict of guilty was returned?

The jury was fully instructed upon all questions of law applicable to the evidence upon the first count of the information upon which the verdict was based, and although the court by its instructions also authorized a verdict of guilty upon the second count, yet, as the defendant was acquitted upon that count, he cannot be heard to complain of error which did not operate to his prejudice.

V. Numerous complaints have been made as to alleged errors in the refusing and giving of instructions, and almost every page of the transcript of the evidence contains one or more objections by defendant and exceptions saved to the ruling of the court thereon.

We have examined these complaints and alleged errors, and find that practically all of them have been answered by the recent decisions of this court construing the statute upon which this prosecution was based. Questions as to whether the statute is leveled against only such gaming tables as are used in games known as “bank games,” or whether a poker table set up for gaming purposes comes within its provisions, which are ably discussed in appellant’s brief; have been passed upon by this court adversely to appellant’s contentions, and we are not disposed to reconsider them in each subsequent appeal. [State v. Chauvin, 231 Mo. 31; State v. Mathis, 206 Mo. 604; State v. Hall, 228 Mo. 456.]

VI. It is earnestly urged that the court erred in refusing the defendant’s instruction in the nature of a demurrer to the evidence under the first count of the information, and this complaint necessitates a brief review of the incriminating facts in evidence relied upon to sustain the verdict.

' The testimony of all the witnesses who testified upon the subject leaves no room for doubt that the statute against setting up and keeping gaming tables and devices, as construed in the decisions of this court, was being openly and flagrantly violated in the room over the pool hall in the Southern Club Saloon building on the night of December 11,1909, and for some weeks prior thereto. The tables and paraphernalia, the use of chips and money in the poker games played, the large number of persons permitted to engage in the games and the take-off charged by the house, of which facts there is no dispute, make this case exceptional in the satisfactory evidence by which these facts were proven. The important remaining question is: Was there evidence tending to prove that the defendant set up or kept such gaming table at the time and place as charged in the first count of the information?

It was shown that the witness Walker, who was in charge of one of the tables at the time of the raid, had known the defendant Cannon some years before in the State of Kansas, and that the defendant had employed and paid Walker to take charge of the tables and had furnished him money when it was needed to use in the game; that appellant’s codefendant, Potts, who was much in evidence around the gambling room and saloon, had furnished money to appellant to be used when needed in keeping up the games; that the defendant, a few days before the date of the offense charged, had painted the room and made other repairs. In addition to the foregoing, it was in evidence that the defendant was seen around the poker tables in charge of the game, sometimes playing himself, and attending to the take-off which went to the house, _ or standing around and watching the games.

It must be admitted that the witness whose testimony identified the defendant and connected him directly with the setting up and keeping of the gambling tables as charged, was shown to be discredited, not only by his record and character, as disclosed by his own testimony, but because of his admission on the witness stand of his own guilt and therefore that he was an accomplice in the crime. This feature of the case, as made against the defendant, was given due recognition by the court and a proper instruction was given to the jury directing them that on account of the witness having been by his own admission an accomplice in the crime, his testimony should be received with great caution.

It is the peculiar province of the jury, and not of the court, to determine the weight to be given to the testimony of the witnesses, and as the testimony of Walker and the other witnesses for the State, if believed, warranted the finding of the jury, this court will not disturb the verdict. [State v. Richmond, 186 Mo. 71; State v. Smith, 190 Mo. 706; State v. Sassaman, 214 Mo. 695.]

' There was substantial evidence tending to prove the guilt of the defendant, and, therefore, the court did not err in refusing to direct an acquittal, as requested by the defendant.

We have examined the record carefully and finding no prejudicial error therein, the judgment should he affirmed, and it is so ordered.

Ferriss and Brown, JJ., concur.


text:
    THE STATE v. WILBUR THOMAS, Appellant.
    Division Two,
    February 7, 1911.
    MOTION FOR NEW TRIAL: Untimely: Record Free From Error. A motion for a new trial in a criminal case must be filed before judgment or it cannot be considered, unless an objection is saved to the action of the trial court in pronouncing judgment on the same day the verdict is returned and without giving defendant an opportunity to file such motion; and if no such objection was made, and the motion was filed three days after judgment and within the term, and the record is free from error, the judgment will be affirmed on appeal.
    Appeal from Platte Circuit Court. — Eon. Alonzo D. Burnes, Judge.
    Affirmed.

      Allen, Gabbert & Mitchell for appellant.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) The indictment is valid, sufficient and in accordance with the language of the statute, and meets the approval of the opinions of this court in form and substance. State v. Pheland, 65 Mo. 547; State v. Doyle, 107 Mo. 36; State v. Williams, 191 Mo. 205; State v. Harris, 209 Mo. 423. (2) Where the assault is made by shooting with a gun or pistol, or by stabbing with a knife, it is unnecessary to allege that the weapon is a deadly one, for it is recognized as such by the statute. State v. Williams, 191 Mo. 205. (3) The appellant waived formal arraignment upon the indictment and entered his plea of not guilty. (4) The jury were qualified, sworn, impaneled and the appellant was represented by counsel. (5) The verdict is definite, certain and responsive to the issues joined. (6) The judgment of sentence is .fully shown by the record proper and is in regular form. (7) The motion for new trial shall be filed before the judgment is rendered. This is mandatory, and if the motion is filed after judgment and sentence, nothing can be considered on appeal except the record proper. R. S. 1909, sec. 5285; State v. Fraser, 220 Mo. 34; State v. Brooks, 92 Mo. 591; State v. Maddox, 153 Mo. 473; State v. Pritchett, 219 Mo. 704. To the same effect is the filing of the motion in arrest of judgment. 1 Chitty’s Crim. Law (5 Ed.), p. 663; Bishop on Crim. Proc. (1 Ed.), sec. 962. Both motions in this case were out of time; that is to say, they were filed after judgment There is nothing here for the court to review except the record proper. State v. Rosenblatt, 185 Mo. 119; State v. Brown, 206 Mo. 507.
   FERRISS, J.

At the March term, 1909, of the circuit court of Platte county, defendant was convicted of a felonious assault with intent to kill, and appeals from the judgment of conviction.

It appears from the record that the verdict was returned and judgment thereon rendered on March 17, 1909, three days prior to the filing of defendant’s motion for a new trial. Section 5285, Revised Statutes 1909 (R. S. 1899, sec. 2689), provides that the motion for new trial shall be “filed before judgment and within four days after the return of the verdict,” and it has been frequently held by this court that said statutory provision is mandatory. [State v. Fraser, 220 Mo. 34; State v. Pritchett, 219 Mo. l. c. 704; State v. Maddox, 153 Mo. l. c. 473; State v. Brooks, 92 Mo. l. c. 596.]

In the recent case of State v. Carson, 231 Mo. 1, Judge Gantt held that where the court pronounced judgment immediately after a finding of guilty, and before a motion for new trial was filed, and where at the time the defendant excepted to the action of the court in so pronouncing judgment and gave notice that he would file his motion for a new trial, there was no waiver by defendant, because he could not have acted more promptly. In the case at bar there was no objection or exception to the action of the court. The motion was filed too late, and we must hold that there is nothing before us save the record proper.

The indictment properly charges the offense of which defendant was convicted, the verdict and the judgment thereon are in due form, and the record in all respects free from error. The judgment, therefore, is affirmed.

Kennish, P. J., and Brown, J., concur.