author: BLAIR, J.

text:
    In Re Incorporation of BIRMINGHAM DRAINAGE DISTRICT v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant.
    Division One,
    August 9, 1915.

    1. TITLE TO ACT: Broad Enough to Include Amendment. The title to the Act of 1879, being “An Act to provide for the formation of drainage districts, to reclaim and drain swamp and overflowed lands in this State,” was broad enough to include provision for any work, whether drain or levee, effectual for the purposes of reclamation; and in consequence, any subsequent amendment by mere reference to that act by section, article and chapter, as it later appeared in the Revised Statutes, fell within the title, so long as it related to the general purposes of reclamation; and all subsequent amendments have related thereto, and have been germane to the subject-matter of that act.
    2. DRAINAGE DISTRICTS: So Named in Act: Include Levees. The fact that the Act of T879 and subsequent amendments thereto have designated districts organized thereunder as “drainage districts” does not limit the activities of such districts to digging ditches, nor shear them of the power expressly given to construct levees.
    3. --: Power to Construct Levees. The Act of 1879 contemplated the construction of levees by drainage districts, and the Act of March 24, 1913, Laws 1913, p. 232, which by the processes of amendment has grown out of the Act of 1879, expressly provides for the construction of levees by such districts.
    4. -: -: Exclusive Methods. The Act of April 7, 1913 (Laws 1913, p. 290) does not provide an exclusive method for the organization of districts when the construction of levees is contemplated.
    5. -: Levees and Drains: Two Similiar Statutes. The fact that the Legislature by progressive amendments has brought the Act of 1879 (now Act of March 24, 1913, Laws 1913, p. 232) and the Act of 1887 (now Act of April 7, 1913, Laws 1913, p. 290) into almost exact harmony as to the character of lands which may be included in a district, the persons who may move for its incorporation and the methods to be employed in working out its destiny, does not destroy any part of the Act of March 24, 1913, or limit the powers by.it explicitly conferred upon a district organized under it. A district may be organized under that act for the purpose of reclaiming overflow land by the construction of a levee.
    6. -: Delegation of Legislative Power to Engineer. That part of section 10 of the Act of March 24, 1913 (Laws 1913, p. 232), which provides that the plan of reclamation, as reported by the engineer, or modifications thereof as approved by him after consultation, shall be adopted by the board of supervisors, is not unconstitutional as a delegation of legislative power to the engineer. In the nature of things there must be a plan, and some one must be empowered to adopt a plan, and manifestly the Legislature cannot provide detailed plans of reclamation in such general acts.
    7. -: -: When Raised. Besides, the objection that said part of the act is unconstitutional on the ground that it is a delegation of legislative power to the engineer, not being one that goes to the whole act, does not fall 'within the scope of the objections which the statute prescribes may be. made to the incorporation of the district.
    8. -: -: -: At the Hearing. Moreover, that objection should be made at the hearing.
    9. -: Non-Resident Supervisors. And an objection that the provision of section 5 of the act, authorizing the selection of supervisors who do not reside in the district or county in which the district is situate, violates the principle that “jurors must' be of the vicinage,’’ is not an objection that the statute prescribes may be made to the incorporation of the district, and is one that should be made at the hearing if it is to be urged on appeal. Besides, supervisors are not jurors, and the objection is untenable.
    10. -: Voting By Acres: No Representation by Owners of Personalty. That part of section 5 of the act which provides that in electing the first supervisors each "acre of land in the district shall represent one share, and each owner shall be entitled to one vote in person or "by proxy for every acre of land owned by him in such district’’ is not unconstitutional, on the theory that it disfranchises those who own less than one acre and those owning personalty only. The exclusion from voting of those who own personalty only is not objectionable, since personalty is not in any wise affected by the act; and since it states each acre shall represent one share, it follows that each fraction of an acre represents a corresponding fractional portion of a share, and its owner is authorized to vote accordingly.
    11. --: Excessive Indebtedness: Special Taxes. An objection that the large sums necessary to construct the contemplated improvement will create an indebtedness in the form of taxes in excess of and contrary to the constitutional limitation upon taxation, will not avail to defeat the incorporation of a drainage district. The costs of the improvement are benefits assessed against the property, and such assessments are not public taxes.
    12. -: Sections Applicable to Former Organization. Section 60 of the Act of March 24, 1913, Laws 1913, p. 232, applies to districts organized prior to April 8, 1905, and objections thereto are not available to proceedings begun under said act.
    13. -: Inclusion of Railroad. The Act of March 24, 1913, Laws 1913, p. 232, authorizes the inclusion of a railroad as a part of the drainage district. It is not excluded by section 39, which provides that the word “owner” as used in the act shall not include reversioners, remaindermen, trustees or mortgagees, “who shall not be counted and need not be notified by publication, or served by process, but shall be represented by the present owners of the freehold estate in any proceedings under this act,” for that section does not exclude any one, whether the owner of a freehold or an easement in land.
    14. -: -: Entire Line of Road. The fact that the railroad company’s line will be left exposed to overflow'for many miles along the river front at points not included in the district, does not authorize the exclusion of its entire line.
    15. -: Inclusion of Lands not Benefited. The extent to which a tract of land will be benefited does not go to the question of the propriety of including it in the drainage district, but rather to the amount of benefits to be assessed against it. Evidence , showing that about one-fourth of the land included is in need of drainage at all times, that about one-tenth of it overflows only in times of very high water, that the remainder has overflowed frequently in the last score of years, and that a portion of appellant’s railroad track has overflowed at times in recent years, will authorize a decree incorporating a drainage district, and the inclusion of appellant’s track.
    16. -: Unjustified Reclamation: When Objection Must Be Made. The objection that the work of reclamation will be so costly that it will not be justified by the benefits which may accrue, should be made when the plan of reclamation has been adopted and the cost and benefits estimated. If it proves true that the costs will not be justified by the benefits, the court must dissolve the incorporation.
    17. -: Other Property: Means Real Estate. The words “other property" used frequently in the act of March 24, 1913, authorizing the organization of drainage districts, do not mean personal property, but land and all interests in real estate.

      18. -: Ownership of Land: Testimony. An objection to the testimony of a witness, made after he had, in answer to a question, testified that he knew of his own knowledge that the several signers of the articles of association for the drainage district owned in the district the respective number of acres set opposite their names, came too late.
    19. -: -: Testified By Tenant. It is competent for a tenant to testify as to the persons under whom he holds possession of tracts of land included in the drainage district.
    Appeal from Clay Circuit Court. — Hon. Frank P. Div&lbiss, Judge.
    Affirmed.

      M. G. Roberts, Simrall S Simrall, Fred S. Hudson, D. G. Allen, James L. Miwnis, N. S. Brown and Craven S Moore for appellants.

      M. E. Lawson and Beardsley, Schaith S Beardsley for respondent.

        Note — Certified, to-the Reporter January 20, 1916.

   BLAIR, J.

This is an appeal from a decree of the Clay County Circuit Court incorporating the Birmingham Drainage District in Clay County. The proceedings for the incorporation of the district were begun under the Act of March 24, 1913 (Laws 1913, p. 232 et seq.). The articles of association filed conformed to the requirements of that act. The property of the defendant railway, in so far as it was designed to include it in the district, is particularly described,. The boundaries of the district as set out in the articles of association include 5,390 acres, and the signers of the articles of association represent themselves as owning, in the aggregate, séveral hundred acres in excess of one-half of the total. Appellant appeared and filed objections to the incorporation of the district as follows: (1) Denying every allegation “in the petition contained.” (2) That the incorporation was not sought in good faith, in that the real object thereof was to build an expensive levee along the river front of the proposed district, and that any drainage done would be only incidental to tbe construction and maintenance of tbe levee; that tbe incorporation, if granted, should be under the Act of 1913 (Laws 1913, p. 290 et seq.) pertaining to the organization of levee districts by circuit courts; and that the effort to incorporate under the Act^ of March 24, 1913 (Laws 1913, p. 232 et seq.), was a subterfuge devised in order to obtain powers the district could not exercise if incorporated in good faith under the act pertaining specifically to levees. (3) That appellant’s property could not be benefited or protected by any plan of improvement the proposed district might- adopt. (4) That the property, including that of appellant, proposed to be included in the district, did not constitute one contiguous body of wet, swamp, or overflowed lands or lands subject to overflow, within the meaning of the act under which petitioners were proceeding. (5) That the Act of March 24, 1913 (Laws 1913, p. 232 et seq.), had been repealed by the Act of April 7, 1913 (Laws 1913, p. 290 et,seq.), “and the publication made herein is not sufficient notice of said incorporation under said act” of April 7, 1913. The trial court heard a great deal of evidence upon the location, character, ownership, and likelihood of the land within the proposed district to overflow, and, at the conclusion thereof, overruled all objections and entered its decree incorporating the district as prayed. The district lies along the Missouri river and has a frontage thereon of nearly or quite eleven miles. The relevant evidence will, when necessary, be sufficiently stated in connection with the discussion of the questions presented for review.

I. In 1879 (Laws 1879, p. 132 et seq.) the Legislature enacted the original act providing for the organization by the circuit court of drainage districts “to reclaim and drain swamp and overflowed lands,” and this act was incorporated in the chapter on “Lands” in the Revised Statutes of 1879, appearing as section 6207 et seq. By the processes of amendment the Act of March 24, 1913 (Laws 1913, p. 232 et seq.), has grown therefrom. In the Act of 1879 it was clearly provided that ditches, drains, levees, dikes and other works adapted to the reclamation of swamp and overflowed lands might he constructed by any district organized under that act. The title of that act was, “An Act to provide for the formation of drainage districts, to reclaim and drain swamp and overflowed lands in this State.” That title was broad enough to include provision for any work, whether drain or levee, effectual for the purposes of reclamation. As a consequence, any subsequent amendment by mere reference to that act by section, article, and chapter, as it later appeared in the Revised Statutes, fell within the title so long as such amendment related to the general purposes of reclamation, and all subsequent amendments have related thereto and have been germane to the subject-matter of the Act of 1879. The fact that the Act of 1879 and subsequent amendments thereto have designated districts organized thereunder as “drainage districts” does not limit the activities of such districts to digging ditches, since both the title of the act and the act itself and the amendments thereof have always defined such districts in such manner as to include the broad, general methods of reclamation. The powers of such districts, expressly given, are not limited by a mere name conferred. One of the methods of reclamation is the construction of levees. The title of the Act of 1879 includes all methods of reclamation, using the general words “to reclaim and drain.” The Act of 1879 clearly contemplated the construction of levees by districts organized under it, and the Act of March 24, 1913, expressly provides for the construction thereof. [Sec. 26, Laws 1913, p. 249.]

The act of April 7, 1913 (Laws 1913, p. 290 et seq.), does not provide an exclusive method for the organization of districts when the construction of levees is contemplated. The original act, from which the last has beeii developed by amendment, was passed in 1887 (Laws 1887, p. 208 et seq.). When it was passed there was no provision in our statutes whereby a district could be organized in the circuit court for the drainage and reclamation of swamp or overflowed lands except upon the petition of a majority in interest of the resident owners. [R. S. 1889, sec. 6517.] The Act of 1887 authorized the organization of a levee district upon the application of a majority in interest of the owners of lands sought to be protected. The Act of 1887 therefore made provision for such organization, in particular circumstances, by others than those authorized to organize under the Act of 1879 and its amendments up to 1887. The Act of 1887, consequently, performed a different function, but was limited to particular kinds of lands. It did not, however, preclude a majority in interest of the resident owners from proceeding under the act of 1879 and its amendments. The fact that the Legislature, by successive amendments, has (Laws 1913, p. 232 et seq., and Laws 1913, p. 290 et seq.) brought the amended acts of 1879 and of 1887 into almost exact harmony as to the character of the lands which may be included, the persons who may move for incorporation, and the methods to be employed in working out the destiny of the district, does not destroy any part of the Act of March 24, 1913, or limit the powers thereby explicitly conferred upon districts organized thereunder. Neither of the acts pretends to provide an exclusive method for the accomplishment of its purposes.

The question is not whether the Legislature has provided by a separate act for the organization by the circuit court of districts empowered to construct levees. It is, on the contrary, whether districts organized under the act of March 24, 1913, are empowered to construct levees. For the reasons given we conclude they are so empowered.

(a) It is urged that section 10 of the act in question is unconstitutional because it provides that the plan of reclamation, as reported by the engineer, or modifications thereof as approved by a^er consultation, shall he adopted by the hoard of supervisors. It is insisted this is a delegation of legislative power to the engineer, and hence is invalid. First. This does not fall within the scope of the objections which the statute prescribes may be made at this stage of the proceedings, it not being contended this objection goes to the whole act. The statute (Sec. 4, Laws 1913, p. 235) limits such, objections to a denial of the statements in the articles of association. Second. This question was not raised on the hearing. Third. The contention is untenable, since the provision of the statute criticized does no more than provide that the plan of reclamation as adopted is to be approved by an expert engineer the board selects. Some one must approve such plan, and it is no more a delegation of legislative power to require the engineer’s approval than it is to require that the hoard shall adopt the plan before it becomes the plan of the district. Manifestly, the Legislature cannot provide detailed plans of reclamation in acts of this character.

(b) It is objected that the provision, in section 5 of the act, authorizing the selection of supervisors who do not reside in the district or county which the district is situated, violates the principle that “jurors must be of the vicinage.” This is answered by the reasons numbered “first” and “second” in the preceding paragraph (a), and is untenable also because the supervisors are not jurors at all. They are selected simply to work out the purposes of the district, and the selection from territory broader than the district and county increases the probabilities of securing efficient supervisors.

Further objecting to section 5 of the act, counsel contend it is unconstitutional because it provides that in electing the first supervisors each ‘ ‘ acre of land in the district shall represent one share, and each owner shall be entitled to one vote in person or by proxy for every acre of land owned by him in such district.” It is said this disfranchises those in the district who own less than one acre and those owning personalty only. Since personalty is not affected in any way under the act, the exclusion from voting of persons owing personalty only is not objectionable. Nor do counsel advance any argument to the contrary. So far as concerns the other point, the statute clearly states that each' acre shall represent one share. It follows that each fraction of an acre represents a corresponding fractional portion of a share, and its owner is authorized to vote accordingly.

(c) The objection that the large sums necessary to construct the contemplated improvements will create an indebtedness in the form of taxes contrary to the constitutional limitation upon taxation cannot be maintained. Sums assessed against property as benefits under acts in principle like that under consideration have always been held not to be public taxes. [Embree v. Road District, 257 Mo. l. c. 610, 611.] The “first” and “second” reasons given under paragraph (a), supra, also apply.

(d) The objections to section 60 are not well taken, since that section applies only to districts organized prior to April 8, 1905, and cannot affect appellant..

III. It is insisted appellant’s property was improvidently included in the district because (1) it is expressly excluded from inclusion by the provisions of section 39 of the act, and (2) its line is left exposed to overflow for many miles along the river front at points not in-eluded in the district

(a) Section 39 simply provides that the word “owner” as used in the act shall mean the owner of the freehold estate and shall not include reversioners, remaindermen, trustees or mortgagees, “who shall not be counted and need not be notified by publication, or served by process, but shall be represented by the present owners of the freehold estate in any proceeding under this act.” This section does not exclude any one. It describes those the Legislature deemed it necessary to notify. Appellant’s argument that it does not own the freehold and does not fall within the definition of “owner,” if agreed to as sound, would not exclude it from the district, but would exclude it from this case as a necessary party if a literal construction is given the statute. The point is ruled against appellant.

(b) The fact that other parts of appellant’s line, outside the district, would be left unprotected is of no consequence. The proposition that a drainage district must include the entire line of railroad along a river or none can be included, is one which answers itself.

IV. Upon the question whether the land proposed to be incorporated in the proposed district falls within the statute, the evidence conflicted to some extent. It appears that one-fourth of the land is clearly in need of drainage at all times. About one-tenth of it overflows only in times of very high water and the remainder has overflowed quite frequently in the last score of years. It also appears that portions of appellant's track have overflowed at times in recent years. This is, briefly, the great weight of the evidence. This showing authorized the decree of incorporation. That a part of the land is overflowed only in case of unusual freshets has been expressly held to be no just ground for excluding it from the district. [Little River Drainage District v. Railroad, 236 Mo. l. c. 112.] In the same case it is held that “the extent to which a tract of land will be benefited does not go to the question of the propriety of including that land but rather to the amount of benefits to be assessed against” it.

The argument that the work, of reclamation will prove so costly that it will not be justified by the benefits which may accrue is untimely. This objection must be made when the plan of reclamation has been adopted and the cost and benefits estimated. [Sec. 37, Laws 1913, If what is now argued in this connection proves true, then the court must dissolve the incorporation. This the section mentioned specifically provides.

Some questions presented are founded upon the assumption that the words “other property” used frequently in the Act of March 24,1913, mean personal property. A careful examination of the whole act discloses that these terms are used merely out of an excess of caution that all interests in realty should fall within the purview of the act. It is unnecessary to note every instance in which the words mentioned appear, but one or two examples may be given. In section 19 of the act, the Legislature prescribes the form of the certificates to be issued by the board of assessors in levying assessments or taxes. It is provided that this certificate shall set out the “names of the owners of said lands and other property as they appeared in the decree of the court organizing said district; second, the descriptions of said lands and other property opposite the names of said owners; third, the amount of said installment of tax levied on each tract of real estate and other property. ’ ’ The certificate prescribed by section 23 for filing in the recorder’s office to evidence-the lien of assessments and taxes is like the preceding- except that it reads: “Third, the amount of said taxes levied on each tract of land or piece of property. ’ ’ In section 18 the words used, in the same sense, •are “all lands, railroad and other property.” In section 43 they are “tract or parcel of land and upon corporate property.” A fair interpretation of the whole act is that it does not refer to personal property.

Witnesses who had signed the articles of association were permitted to testify that they owned certain land. Others testified that they knew of their own knowledge that certain of the signers owned designated tracts within the district. Objection was made to some of this testimony.

In answer to a question asked the witness Wright, he stated that he knew of his own knowledge that the several signers of the articles of association owned, in the district, the respective number of acres set opposite their names. After he had answered an objection was made. Under a long line of authorities, the objection came too late. ' As a matter of fact no effort was made by appellant to dispute the truth, of the statement that the signers of the articles owned the land they represented themselves to own. As to 1,300 acres, the owners thereof testified it was their property. We do not understand objection was or is made to this testimony.

Concerning 780 acres, the tenant in possession testified as to the persons under whom he held possession of the tracts. This was competent. [Railway Co. v. Norcross, 137 Mo. l. c. 427.] As to another tract of over 600 acres, an attorney who represented the owner testified he was familiar with the land, its ownership and title, and that it was owned as appeared from the articles of association. There was no objection made to this testimony. In the circumstances, the point is ruled against appellant.

This disposes of all questions presented in the briefs. The judgment is affirmed.

All concur, except Bond, J., not sitting.


source: Caselaw Access Project

author: FARIS, P. J.

license: Public Domain

text:
    THE STATE v. LEVI BOUSLOG, Appellant.
    Division Two,
    November 30, 1915.
    1. EMBEZZLEMENT: Venue. Where the defendant was charged with embezzling money, the undenied testimony of a witness that defendant told him that he received a check for $500 in one county and came to the county in which the indictment was found and there indorsed the name of the payee, at her direction, and cashed it, is sufficient, naught else appearing, to show that the venue was in the county in which the check was cashed.
    2. -: Form: Check or Money: Variance. Testimony by. the defendant, charged with embezzling money, that the payee of a cheek for $500 instructed him to indorse her name upon it and to bring the balance of the money to her, and that he did indorse it and cash it, and the testimony of another witness that defendant admitted he had gotten $500 in money from the payee of the check, and of other witnesses that after he had cashed the check he failed to bring her $200 of the money received by him, is sufficient to sustain the charge of having embezzled money of said payee, and does not show an embezzlement of the check, and there is no such variance as invalidates a conviction.
    3. -: -: -: Burden: Converting Check Into Money. In view of such showing, the burden is not upon the State to go further and show the form of the property at the time or place defendant conceived the felonious intent "to embezzle it. It is sufficient in order to sustain the charge of embezzling money, and to avoid a variance, to show that while the property of another was in the hands of the accused he changed or converted it into money which he failed to account for.
    4. -: Venue: Converting Check Into Money. And the venue where the charge is an embezzlement of money, is established by showing that accused converted a check into money-in the county in which the venue is laid, and converted that money, or a part of it, to his own use.
    5. -: Cross-Examination of Defendant: No Objection Except Immaterial. Any error in the cross-examination of defendant charged with embezzling money, by which it is made to appear that defendant profited to the extent of several thousand dollars by other transactions between him and the prosecuting witness and whereby she lost practically all she had, is not reviewable on appeal, if the only objection made to the testimony at the trial was that it was immaterial. Such an objection is utterly insufficient.
    Appeal from Jackson Criminal Court. — Hon. Ralph 8. Latshaw, Judge.
    Affirmed.

      George M. Jacques for appellant.
    (1) In a trial for embezzlement of money, admission of evidence tending to prove the embezzlement of any other property is érror, and the admission of irrelevant or immaterial evidence which in its effects tends to injure the defendant in his material rights is error. (2) In a prosecution for embezzlement the State must show: first, that accused was an agent, servant, employee; second, that he received the money or other property in the course of his employment; third, that he received money or other property belonging to his principal; fourth, that he converted in county in which prosecuted the money or other property to his own use, with intent to steal and embezzle it. 15 Cyc. 497; Case v. State, 26 Ala. 17; Ex parte Hedley, 31 Cal. 108; Shelburn v. Com., 85 Ky. 173; Com. v. Smith, 129 Mass. 104; State v. Adams, 108 Mo. 208; State v. Jennings, 98 Mo. 493; State v. Reilly, 4 Mo. App. 392. And in a prosecution for embezzlement the material allegations of the indictment or information must be proven as laid and the proof must correspond to the allegations of the indictment or information describing the money or property alleged to have been embezzled. 15 Cyc. 525; State v. Hanley, 70 Conn. 265; Weiner v. People, 186 111. 503; Com. v. Merrifield, 4 Mete. (Mass.) 468; State v. Schieb, 159 Mo. 130 ; State v. Dodson, 72 Mo. 283; Black v. State, 44 Tex. 620; State v. Hoshor, 26 "Wash. 643. Nowhere in the evidence is it shown that the defendant received from the prosecuting witness lawful money of the United States in Jackson county, the nearest approach to this being the testimony of the witness Elroy, and his testimony is that a check was received in Barton county and cashed in Kansas City, but evidence showing the embezzlement of a deed; draft, check or note does not support an information for the embezzlement of money. State v. Castleton, 255 Mo. 201; State v. Mispagel, 207 Mo. 559; State v. Wissing, 187 Mo. 106; State v. Crosswhite, 130 Mo. 366; State v. Dodson, 72 Mo. 283; Carr v. State, 104 Ala. 43; Lancaster v. State, 9 Tex. App. 393; People v. Leipsic, 62 Pac. 311; Com. v. Wood, 142 Mass. 459; People v. Meseros, 116 Pac. (Cal.) 679. Defendant’s demurrer should have been sustained for the further reason that the venue was in Barton county. State v. Bacon, 170 Mo. 161; People v. Meseros, 116 Pac. (Cal.) 679. The information charges that while defendant was acting as the agent, clerk, collector and servant of the prosecuting witness, he did have, receive and take into his possession and under his care and control money to the amount of $200, the same being lawful money of the United States. To support this information the State must show that the defendant received .of the prosecuting witness in Jackson county, the sum of $200 lawful money of the United 'States. This charge is not supported by proof of his receiving in Jackson county, of á deed to property in Barton county, or by proof of the receiving of a check which was afterward converted to the use of defendant. 15 Cyc. 525; State v. Schieb, 159 Mo. 130 ; State v. Mispagel, 207 Mo. 559; State v. Castleton, 255 Mo. 201; State v. Wissing, 187 Mo. 106; State v. Crosswhite, 130 Mo. 366; State v. Dodson, 72 Mo. 283; State v. Bacon, 170 Mo. 161; Carr v. State, 104 Ala. 43; ‘Lancaster v. State, 9 Tex. App. 393; People v. Leipsic, 62 Pac. 311; Com. v. Wood, 142 Mass. 459.

      Jolm T. Barker, Attorney-General, and Lewis H. Cook for the State.
    (1) No specific reason was assigned for the objections, but the objections throughout the trial were general in their character and did not acquaint the trial court with the reasons assigned therefor. 'Specific grounds of objections must be made at the trial in order to make the rulings of the trial court reviewable. State v. Goddard, 162 Mo. 198; State v. Lovell, 138 S, W. 623; State v. Miles, 199 Mo. 559. (2) It is for the jury to settle any conflict in the testimony, and although the verdict convicts the defendant of embezzlement by agent, yet if the evidence is substantial the Supreme Court will not disturb the verdict on the ground that it is insufficient or that it is against the weight of the evidence. State v. Rumfelt, 228 Mo. 443; State v. Miller, 188 Mo. 379; State v. McGee, 188 Mo. 409; State v. Leabo, 89 Mo. 255. (3) The defendant being the agent of Mrs. McClintock in securing this loan was vested with authority to cash this check, but in appropriating the money realized therefrom to his own use, he was guilty of embezzlement. The check was cashed in Kansas City, Jackson county, and the venue is established. A convincing and full answer establisMng the venue is found in the testimony of Kilroy. State v. Bacon, 170 Mo. 162; State v. Mispagel, 207 Mo. 575. (4) The only witness called in behalf of the defense was the defendant, who admitted on the stand that he received a check for $500, for which he gave a warranty deed signed in blank by the complaining witness. These matters were submitted by the court, under proper instructions, to the jury, and the jury, having considered the evidence, found the defendant guilty as charged. Their finding will not be disturbed, as there is substantial evidence to support their verdict. State v. Sassman, 214 Mo. 738; State v. Shelton, 223 Mo. 141; State v. Wooley, 215 Mo. 687; State v. Sharp, 223 Mo. 295.
   FARIS, P. J.

Defendant was tried in the criminal court of Jackson county upon the charge of embezzlement. The jury found him guilty and fixed his punishment at imprisonment in the penitentiary for a term of two years. Prom this conviction, after making the conventional motions, he has appealed.

The facts are brief and so far as they are material in the illumination of the points discussed in the opinion, run thus: Defendant was engaged in the real estate business in Kansas City. He had certain dealings in real estate with one Mrs. Edith McClintock, who is the prosecuting witness in the case, by which defendant acquired from Mrs. McClintock certain farms in Nebraska and at Polo, Missouri, and certain town property at Excelsior Springs, and Mrs. Mc-Clintock acquired from defendant a farm in Barton county, Missouri. All of this property seems to have been very heavily encumbered with mortgages. In addition to the property exchanged by Mrs. McClintock with defendant for the Barton county farm, the former owned a house and lot in Excelsior Springs which was encumbered for $1200, upon which encumbrance the holders were threatening foreclosure. The Clay County Bank, with which Mrs. McClintock had dealings, was willing to take over this encumbrance, but was unwilling to take this latter property for the security of the full amount of the $1200 encumbrance and insisted that the amount thereof should be reduced to $800. 'Being unable otherwise to obtain this sum of $400, Mrs. McClintock arranged with defendant to obtain this money for her on the Barton county farm, the defendant representing to her that he could get from five to seven hundred dollars on Mrs. McClintock’s equity in this farm if she would execute a blank warranty deed therefor to be put up, as defendant expressed it, “in escrow.” Sometime about the latter end of the year 1910 or the beginning of 1911, Mrs. McClintock executed and acknowledged a warranty deed to the Barton county farm, leaving the name of the grantee theimn blank. Upon this warranty deed, defendant, sometimes in the early days of March, 1911, obtained $500. Subsequently and on March 10, 1911, he paid to the Clay County Bank $300 on the sum of $400 which the bank demanded of- Mrs. McClintock as a condition precedent to its taking up the $1200 loan on her Excelsior Springs property. Defendant at the time claimed that the $300 was advanced by him out of his own money. The balance of the $500 procured by defendant through the use of the warranty deed on the Barton county farm, was never paid by him to Mrs. McClintock. Mrs. McClintock did not learn that defendant had used the warranty deed until the Barton county farm was lost to her, defendant having obtained the money on an agreement to re-pay the same within ninety days.

The proof shows that the check for the sum of $500 in question was payable to Mrs. McClintock, and that defendant, according to his own admissions upon the trial, indorsed such check by request of Mrs. Mc-Clintock and collected it in Kansas City, Missouri.

Defendant admitted obtaining the check for the snm of $500 by the means set ont above, bnt contends that in addition to the $300, which it is conceded he paid to Mrs. McClintock, and which was used in reducing the encumbrance on the Excelsior Springs property, he paid her in cash the further sum of $200. He also contends that he paid certain interest on encumbrances on the property she traded to him and which she admits she agreed to pay, and that he paid the sum of $100 to obtain the extension of the ninety-day redemption period on the Barton county farm. All these latter contentions are denied, however, by Mrs. McClintock. The record is obscure and unsatisfactory, but to eke it out so far as it is possible, its condition considered, reference will be made in the opinion to further facts.

OPINION.

The only questions so raised as to challenge our attention as matters of law, are (a) that the venue was not shown to be in Jackson county, and (b) that there was such a variance in the proof as to the nature of property embezzled as to be fatal to a conviction, in that he was charged with embezzling money, and the proof shows, as defendant contends, he embezzled either a warranty deed or a check. Both of these questions are discussed in the case of State v. Mispagel, 207 Mo. 557, which it is strenuously contended settles this case in favor of defendant. We do not think this is true whether (and the State urges us to re-examine it if it be apposite) .the Mispagel case be correctly ruled or not. We reach this view upon the uncontradicted facts. One Kilroy, a witness for the State, testified that defendant told the witness that “he [defendant] got the $500 check at Butler, then came to Kanas City. . . . He had the $500 here in Jackson county and cashed the check here.” There is no denial of the above statement. We hold that this statement was sufficient, naught else appearing, to show that the venue was properly laid in Jackson county.

Upon the other contention, that of variance, the testimony of the witness Kilroy shows that defendant admitted that he had gotten $500 in money from Mrs. McClintock. But that is not all. The defendant testifying for himself and in answer to questions from his own counsel, says: “Q. This check [the check in controversy] that Mr. Jones gave you was for $500? A. Yes, sir. Q. Who was that made payable to? A. Payable to Mrs. McClintock. I called her up and told her I had it and I wanted her to indorse it. She said, ‘Put my name on it,’ and said for me to bring the balance of the money to her.”

The whole ease shows, if the witnesses for the State are to be believed — and the question of credibility is not for us, but for the triers of fact — that defendant was the agent of Mrs. McClintock to use the warranty deed and thereby to obtain this loan. He admits that she expressly made him her agent to indorse the check and bring her the money. He did indorse it and cash it, but other proof in the case shows he failed to bring her $200 of the money. If the jury believed this, and the sequel indicates that they did, it was, other jurisdictional and evidentiary matters being shown, sufficient to sustain the conviction.

The facts of the instant case regarded, we do not see wherein the case falls foul of the rule announced in the Mispagel case, and so see no reason to re-examine that case at this time. For according to defendant’s own admissions to the witness Kilroy and when testifying for himself, he indorsed this check at the request of the prosecuting witness who was the payee therein, and having so endorsed it “cashed”it, i. e., turned it into money; and this was the form of it when he failed to account to Mrs. McClintock for it.

So we say the burden is not and ought not to be put upon the State after such showing, to go further and show the form of the property at the time or place at which defendant conceived the felonious intent to embezzle it. It is sufficient in order to sustain the charge of embezzlement of money, upon the phase of avoiding a variance, to show that while the property of another was in the hands of the accused he changed or converted it into money which he failed to account for, and upon the phase of venue, that he did this in the county in which the venue is laid. If the rule were otherwise it would be well-nigh impossible to sustain convictions in fully half of the cases. There may be other means of avoiding a variance. We will rule them as we reach them. One other, we may pause to recommend to the prosecuting attorneys, would be to charge the embezzlement in as many counts as there are forms which the embezzled property assumed while the accused had it in his hands.

The cross-examination of defendant took a wide range, and some of it, which elicited facts as to other real estate transactions between defendant and Mrs. M'cClintock, by which it was made to aPPear that defendant profited thereby to the extent of some four thousand dollars, and that Mrs. McClintock lost practically all she had, may well have hurt defendant’s case before the jury. However, the only objection made by defendant was that this evidence was immaterial. It needs no reiteration of cited cases to show the utter insufficiency of such an objection. So we disallow the general assignment of error within which this point falls and place it in that large category of cases, rarely mentioned by press or populace, but nevertheless numerous, in which the State is saved a reversal by a technicality.

We have carefully gone over this record and find no error saved which is meet for reversal, we must needs therefore affirm it. Let this he done.

All concur.


author: WALKER, J.

text:
    THE STATE v. MARIANE CARIOU, Appellant.
    Division Two,
    November 30, 1915.
    1. EVIDENCE: Homicide: Corroboration of Irrelevant Statements. Copies of a periodical and catalogue found among deceased’s effects, the one advocating free love and the other containing a price list of articles designed to prevent conception, are not admissible for' the purpose of corroborating defendant’s testimony that she believed deceased had taken away her unmarried sister-in-law for immoral purposes, or of elucidating the state of her mind at the time she shot deceased.
    2. INSTRUCTION: Defining Heat of Passion. An instruction for murder in the second degree is not erroneous because it does not define the phrase “heat of passion.”
    3. -: Homicide: Manslaughter in Fourth Degree: No Provocation. The giving of an instruction for manslaughter in the fourth degree is authorized only when the evidence shows that an assault has been committed or personal violence has been inflicted upon defendant, either of which constitute what is termed “lawful provocation,” the presence of which will reduce murder to manslaughter. But testimony that deceased had seduced defendant’s unmarried sister-in-law, who had been a member of her household; that he had placed pernicious literature in her hands, that he had abducted her from defendant’s home under promise of marriage and had returned without her, or his remark to defendant when she made inquiry concerning her sister-in-law just before the shooting that he had taken her to a place to have pleasure with her, is not evidence of lawful provocation, and will not authorize an instruction for manslaughter in the fourth degree.
    4. -: Mental Incapacity: Covered by Others Given. It is unnecessary to give an instruction submitting to the jury the question of defendant’s mental capacity necessary to relieve her from liability for the commission of a crime, if the court has already at the request of the State given an instruction properly presenting the entire matter.

      Appeal from Lafayette Criminal Court. — Ron. John A. Rich, Judge.

      R. F. Blackwell and Chiles & Chiles for appellant.
    (1) The court erred in giving instruction 6 at the request of the State, for the reason that said instruction uses the term “heat of passion” without defining the same therein and without defining it in other instructions. State v. Andrew, 76 Mo. 105; State v. Strong, 153 Mo. 555. Said instruction 6 is also open to the objection that no mention is made of “heat of passion” in the attempted application of the law to the fact of killing. (2) The trial court erred in, refusing to give defendant’s instructions upon manslaughter in the fourth degree.

      John T. Barker, Attorney-General, and Thomas J. Riggs, Assistant Attorney-General, for the State.
    (1) The periodicals and books found by the administrator as far as the evidence discloses had never been seen by the appellant or by Marie Cariou and could therefore have no bearing on the case. The refusal of evidence offered was not called to court’s attention in the motion for new trial and is therefore not reviewable. State v. Johnson, 255 Mo. 287; State v. Foley, 247 Mo. 627; State v. Gilmore, 110 Mo. 1; State v. Headrick, 149 Mo. 404; State v. Harlan, 130 Mo. 394. (2) The court did not commit,error by not defining “heat of passion” as used in the State’s instruction defining murder in the second degree. There must be a request for an instruction to raise the question of court’s failure to instruct. State v. Thompson, 250 Mo. 215; State v. Starr, 244 Mo. 183. Failure of the court to instruct on any subject must be mentioned in the motion for new trial-. State v. McBrien, 178 S. W. 489; State v. Douglas, 258 Mo. 293; State v. Conners, 245 Mo. 482; State v. Bostwick, 245, Mo. 486; State v. Dockery, 243 Mo. 592; State v. Conway, 241 Mo. 271. The instruction is more favorable to the appellant than necessary, and properly defines murder in the second degree. State v. Thomas, 78 Mo. 327; State v. Hudspeth, 159 Mo. 196; State v. Hyland, 144 Mo. 311; State v. Pleake, 178 S. W. 355. (3) The trial court properly refused to give defendant’s requested instructions on manslaughter in the fourth degree. Appellant has cited a number of cases to the effect that there was a lawful provocation, and therefore an instruction on manslaughter in the fourth degree should have been given. • State v. Bulling, 105 Mo. 204. There is a distinction'between lawful provocation and just provocation. Lawful provocation would permit an instruction on manslaughter, but just provocation would only reduce the homicide to murder in the second degree. Epithets, together with insulting gestures, constitute only just provocation, and therefore would not authorize an instruction for manslaughter. Words of reproach, however grievous, including _ indecent; provoking actions or gestures, are not sufficient to free the party killing from the guilt of murder. Provocation must consist of personal violence. State v. Finley, 245 Mo. 465; State v. Myers, 220 Mo. 598; State v. Sebastian, 215 Mo. 58; State v. Goldby, 215 Mo. 48; State v. Geisky, 209 Mo. 331; State v. Ballance, 107 Mo. 607; State v. Edwards, 103 Mo. 518; State v. Gordon, 191 Mo. 114. There must he considerable personal violence, or if slight, it must be accompanied by circumstances of indignity or an assault, actual or menaced, or words or gestures accompanied by some act indicating an intention to follow them up by an actual assault or violence to the person in order to justify an instruction on manslaughter. ‘ State v. Hanson, 231 Mo. 14; Statei y. Elliot, 98 Mo. 150; State v. Chamber, 87 Mo. 406; State v. Keene, 50 Mo. 357.
   WALKER, J.

Appellant was indicted in Lafayette county for murder in the first degree in having shot and killed one Henri Herve. Upon a trial she was found guilty of murder in the second degree and sentenced to ten years’ imprisonment in the penitentiary. From that judgment she appeals to this court.

The testimony for the State discloses that the appellant, Mariane Cariou, and the deceased, Henri Herve, lived at Summit Mine, near Lexington. The appellant lived with her husband and sister-in-law, Marie Cariou. The deceased boarded with Leon Peton. Deceased had been keeping company for some time with Marie Cariou. On March 27,1913, a short time before noon, appellant came to Peton’s and asked to see the deceased. Appellant came into the room where deceased and Amos, Ms roommate, were, and asked the former where Marie Cariou was and if she was in good hands. Deceased said that he had taken her to town and she was going to Pete Roland’s. Appellant then went home. At about 12:30 or 1 o’clock p. m. the appellant came to the Peton home looking for deceased. Amos told her that he was not there. Albert Holm and John Llierberg were at the time passing through the Peton yard. Deceased came out of the cellar of Peton’s house and was in front of Llierberg and Holm. Llierberg saw appellant run toward deceased, who was directly in front of Holm, with a revolver in her hand, and he called to Holm to look out. Holm thought that deceased was playing some trick on him, but turned and saw the appellant standing behind Mm with a revolver and immediately jumped to the side of deceased. Appellant at this time said, “He took my sister-in-law away,” and deceased said, “You would not kill me for that.” Appellant said, “Yes, I’ll kill you.” Deceased started to run and after he had gone four or five steps appellant shot him. . He went four or five steps further, fell and died almost instantly. The shot entered the left side of the back and came ont the right side of the breast.

Leon Peton took the revolver away from appellant; there was one empty shell in it and four loaded ones. At the time of the shooting deceased had no weapon, nor was he resisting appellant in any manner.

Shortly before the shooting appellant called Florinda Fiora, a neighbor, over, and said she was going to kill that boy, meaning the deceased. The reason she gave for the intended kililng was that he was going to take Marie Carion away. Mrs. Fiora told appellant not to kill him, but she answered that it didn’t make any difference, she would kill him anyway. She had a pistol in her hand at the time. When she went to Peton’s she had the pistol under her apron. Just before the killing deceased said not to kill him, that he was not the cause of it, and after he was shot he fell and said, “1 am lost.”

After the shooting appellant asked for a gun and said she wanted to kill herself. She tried to kill herself with an iron and an empty bottle.

Marie Cariou, twenty years old and a native of France, testified that she had been in this country about one year. She left the Cariou home on the morning before the killing, because she was not satisfied there. 'She told appellant she was going to Roland’s on the evening before; that she intended to go to work for Roland. The deceased met her that morning and they got into a machine and went to the Grueguen home. Arrangements had been made for her to work at Roland’s. Appellant brought her to this country and paid her expenses. A few days before she left her brother’s he offered her $10 a month to remain there. She told him she did not want to stay. Deceased had never taken any liberties with her and quit visiting her on account of appellant’s objections. Deceased had nothing to do with persuading her to leave and she did not leave on his account. She was not satisfied, because appellant wanted to boss her too much. She would not let her go out with deceased or any one else. At one time she started out walking with deceased and went as far as the main road and appellant came after her. The night before the shooting she became engaged to deceased. He had asked her several times to marry him, but she would not give him an answer on account of the attitude of appellant.

The appellant went home after the shooting, got her little boy and started up the road toward town.

The evidence for the defense is substantially as follows:

Appellant testified that: In September, 1913, she went to Prance and returned in November, bringing her sister-in-law, Marie Cariou, with her. Marie Cariou began to go with deceased and appellant did not object until one day she found them locked in a bed room. When the door was opened Marie was sitting on the edge of the bed and Herve sat beside her. Appellant told her to come into the other room and deceased stayed in the bed rood. Marie, in answer to the question as to how it happened, said that she was weak and could not resist him. Deceased came to see Marie after that, but appellant would never leave her alone with him, and would not let her go out with him unless she accompanied them.

On the Wednesday before the shooting Marie talked with her about leaving. Appellant told her not to leave, that she would save her honor. She told appellant she was going to work for Pete Roland. She left the house on the morning of the shooting with her valise. John Draulic came and told appellant that Marie and deceased had gone away in an automobile. Appellant said, “Tes, they may have gone to get married, ’ ’ and Draulic said perhaps they have gone to Roland’s. Later Draulic told appellant that deceased had returned without Marie. Then appellant went over and asked deceased where Marie was. He told her it was not her affair, that he had not eaten her, bnt had taken her to a place to have pleasure with her. After this she became excited and remembered nothing. The next thing she renaemberd was that she was in jail, and she asked a prisoner why she was in there, and he said it was because she had killed Henri Herve'. Previous to the shooting appellant had been confined in bed for eight days and had gotten up only on the Tuesday before the shooting. Deceased had given Marie a book which was objectionable to the appellant.

John Draulic testified that appellant told him that deceased was a good boy and she liked him, but she was mad because Marie left home. The defense introduced testimony that deceased was the agent for a paper entitled, “Consciente Generation.” The appellant objected to Marie reading this paper. The State showed that appellant read it frequently ánd was a subscriber to it, and the paper had been coming to her house addressed to her. She denied that she was a subscriber or that she read the paper. Marie Cariou, on rebuttal, denied that she had ever had any improper relations with deceased or that she ever so stated to appellant, or that appellant had ever found her locked in a room with the deceased.

I. Appellant complains of the refusal of the trial court to permit the introduction on the part of the defense of copies of a French periodical and catalogue found among the effects of the deceased; the first advocating free love and the limiting of population by the prevention of conception; the second containing a price list of instruments and articles to effect the last named purpose. It is contended this testimony should have been admitted to corroborate or give credence to appellant’s testimony that she believed the deceased had taken Marie away for immoral purposes and hence the state of her mind at the time of the killing.

The reasons urged for the admission of this testimony that it afforded provocation for the killing is without support upon any theory of the case. There is no rule of evidence which permits the introduction of testimony to corroborate irrelevant statements, and as the periodical and catalogue had no legitimate probative force of themselves the contention is without merit, even if it had been preserved for. review in the motion for a new trial, which was not done.

It is contended that the instruction for murder in the second degree was erroneous in not defining Pkrase “heat of passion.” Whatever foundation there may be for this contention is based upon an inaccurate expression in State v. Andrew, 76 Mo. l. c. 105, where it is said that an instruction for murder in the second degree is ‘ ‘ subject to criticism” which does not define the phrase referred to. Despite this declaration, and it is nothing more, the instruction as given was held not to be prejudicial, for the reason that the phrase as there used was to be understood in the ordinary and not the technical sense of the words employed, and hence more favorable than otherwise to the accused. This being true, it is difficult to see in what respect it was ‘ ‘ subject to criticism.” The Andrew case, therefore, while it was inaccurate in expression, invoked the correct doctrine in regard to the use of the phrase in instructions defining murder in the second degree, but did not recognize the general application of the rule first announced in our reports in State v. Wieners, 66 Mo. l. c. 25, that the phrase, when used in instructions defining that degree of homicide, was to be understood in the ordinary sense of the words, and indicated no more than a state of the mind different from that of a cool state of the blood.

A reference to the cases in which this question has been discussed is not inappropriate in this connection.

In State v. McKinzie, 102 Mo. l. c. 627, it was held that the .trial court should have defined “that heat of passion produced by a just cause of provocation which will reduce the homicide to murder in the second degree,” no reason being assigned or case cited in support bf this declaration.

In State v. Strong, 153 Mo. 555, the court declared an instruction for murder in the second degree erroneous because no definition was given of the words “in a heat of passion,” citing in support thereof the Andrew-case, which has been shown to be an authority to the contrary, and State v. Forsythe, 89 Mo. 667, and State v. Hickam, 95 Mo. l. c. 330, in each of which the charg*e was for an assault with intent to kill. These cases have no reference to an instruction for murder in the second degree or to the use of the phrase in controversy, and are therefore incorrectly cited in support of the ruling in the Strong case.

The ease of State v. Reed, 154 Mo. l. c. 129, is not relevant, because the instruction discussed and held to be erroneous was for justifiable homicide and not murder in the second degree.

In State v. Lane, 158 Mo. l. c. 584, the reason for the rule as stated in the Wieners case was recognized and a definition of the phrase was held not to be necessary.

State v. Skaggs, 159 Mo. 581, is not relevant, because the instruction condemned was for manslaughter in the fourth degree, the court holding that the phrase “heat of passion” should have been defined. This was a correct ruling; manslaughter is a crime recognized by the common law, and the phrase “a heat of passion,” being one of the elements of same, when employed in an instruction descriptive of the offense, is to be understood in its technical sense and its definition becomes necessary; but murder in the second degree is of statutory creation, and when the phrase is used in characterizing the offense it signifies no more than is indicated by the ordinary meaning of the words employed and requires no additional interpretation. This is the reason, and it is well founded, for the rule in the Wieners case.

State v. Pleake, 177 S. W. l. c. 357 (not to be officially reported), is not an authority here, because the instruction there complained of was for manslaughter in the fourth degree.

Prom all of which it will be seen that where the rule has been recognized and observed it has been held not necessary to define the phrase in instructions for murder in the second degree and that rulings to the contrary have been arbitrarily made without any reason assigned therefor, and they are consequently not authorities to sustain appellant’s contention. We therefore overrule it.

Appellant complains of the refusal of the trial court to give an instruction for manslaughter in the fourth degree. The giving of this instruction, under many precedents, is only authorized when it is shown that an assault has been committed or personal violence inflicted upon the defendant, either of which constitute what is termed “lawful provocation,” the presence of which will reduce murder to manslaughter. [State v. Ellis, 74 Mo. 207; State v. McKenzie, 177 Mo. l. c. 712; State v. Weakley, 178 Mo. l. c. 423; State v. Todd, 194 Mo. l. c. 396; State v. Darling, 199 Mo. l. c. 197; State v. Conley, 255 Mo. l. c. 198; State v. Snead, 259 Mo. l. c. 432.]

The facts contended by the appellant to be necessary to constitute lawful provocation and hence authorize the giving of the instruction, are as follows: the alleged seduction of Marie Cariou by the deceased; the placing in her hands by him of pernicious literature; her abduction by him under-promise of marriage ; his return without her; and his remarks to appellant when she made inquiry concerning her. To hold that these facts are sufficient to authorize the giving of the instruction would he to overturn all precedent and in effect sanction the taking of the law by the appellant into her own hands to inflict such punishment as she deemed adequate to the injury she felt she had sustained. The inculcation of the doctrine this contention seeks to establish is pernicious in the extreme and, if approved, could not be otherwise than detrimental to the well being of society. Its establishment would result in the substitution of the vendetta and the right of personal reprisal for the orderly procedure of the courts in the administration of the criminal law.

There was no evidence authorizing the giving of instructions on accidental killing and justifiable homicide.

Appellant complains of the refusal of the' trial court to grant an instruction submitting to the jury the question of the appellant’s mental incapacity necessary to relieve her from liability for the commission of the^ crime. The giving of this instruction was unnecessary in view of the fact that the court had given an instruction at the request of the State properly presenting to the jury this entire question.

The record discloses that the appellant has been accorded every right to which she was entitled under the law. She was fortunate in being represented by able and industrious counsel, who have left nothing undone to present every possible defense that could properly be interposed in her behalf for the commission of this unprovoked murder. The jury would have been authorized under the evidence in finding her guilty of murder in the first degree.

The freedom from error of this record authorizes an affirmance of the judgment of the trial court, and it is so ordered.

Bevelle, J., concurs; Paris, P. J., not sitting.


author: REVELLE, J.

text:
    THE STATE v. JOHN COLLINS, alias JOHN LEWIS, alias JOHN O’DAY, alias JOHN KANSE, alias JOHN KELLY, Appellant.
    Division Two,
    November 30, 1915.
    1. PLEADING: Former Acquittal: Habitual Criminal. Ordinarily the plea of autrefois acquit or autrefois convict should set out fully and accurately the former indictment, because the identity of the two offenses is the very gist of the plea, and because, before it is availing, the former conviction or acquittal must be had upon a valid indictment, and such identity and validity cannot otherwise be made to appear. But where the plea is directed to an indictment which alleges a former conviction and thereby seeks to charge defendant as an habitual criminal, it is not necessary to set out in the plea more than the indictment itself is required to contain, and to sustain the charge of being an habitual criminal it is required to allege only in general terms the conviction, date thereof, sentence, imprisonment and discharge upon compliance with the sentence.
    2. HABITUAL CRIMINAL: No Crime. The statute does not authorize a conviction upon a charge of being an habitual criminal; it does not make an habitual criminal habit an offense. It only provides a severer punishment for the crime committed because of defendant’s persistence in criminal conduct.
    3. -: Twice in Jeopardy. The statute prescribing a greater punishment for a second offense than for the first does not put defendant twice in jeopardy of conviction or punishment for one offense. It simply prescribes a severer punishment for the subsequent offense. Its penalties cannot be inflicted unless he is convicted of the second or a subsequent offense, nor unless he has previously been convicted of a specific crime.
    4. PLEADING: Habitual Criminal: Former Acquittal: Plea of Former Jeopardy. Where the indictment charges defendant with the crime of larceny and with having been convicted of a former larceny in 1909, a plea to the indictment to the effect that he is being twice put in jeopardy of the offense of being an habitual criminal, and should be discharged, for that he was in 1911 acquitted under an indictment charging he was an habitual criminal, is not sufficient, for the reason that it is not distinctly pleaded that he was acquitted of the crime then charged to him. If he was convicted of the crime itself, but was acquitted on the charge of having been formerly convicted, this fact should have been distinctly pleaded, and it is not.

      Appeal from St. Louis City Circuit Court. — Hon. Rhodes E. Gave, Judge.
    Affirmed.

      Thomas J. Rowe, Jr., for appellant.

      John T. Barker, Attorney-General, and Kenneth G. Bears for the State.
    (1) Though there is some confusion in the authorities the plea of res judicata (construing it to be a plea of autrefois acquit) is not sufficient in form. Kelley’s Criminal Law and Practice (3 Ed.), sec. 235; King v. Wildey, 1 Maulé & Selwyn, 183, 105 Eng. Rep. 69; State v. Heath, 8 Mo. App. 101; 2 Bishop’s New Crim. Proc. (2 Ed.), secs. 810, 814, 815; Bishop’s Di rections and Forms (2 Ed.), see. 1043, 95; 2 Hale P. C. 243; Crocker v. State, 47 Ga. 568; 'Smith v. State, 52 Ala. 407; Zinn v. State, 117 S. W. 136; Washington v. State, 32 S. W. 694; Queen v. Austin, 2 C.ox’s C. C. 59 (contra — no discussion). (3) The demurrer was properly sustained. McIntyre v. Commonwealth, 154 Ky. 149; Kinney v. State, 45 Tex. Crim. R. 504 (contra), 48 L. R. A. (N. S.) 207 (note), (a) The habitual criminal act is not a distinct crime; it neither compels or forbids any act, but merely fixes a method of punishment applicable to all crimes. It is therefore unique in criminal legislation, (b) Joinder of a charge under the Habitual Criminal Act does not make the indictment bad for duplicity. People v. Boyd, 64 Cal. 153; State v. Moore, 121 Mo. 514. (c) If the habitual criminal charge becomes unavailable the State can proceed upon the indictment as for a charge of a first offense. People ex rel. v. Clancy, 163 App. Div. (N. Y.) 616. (d) The habitual criminal charge may be upon an act committed outside the State. McDonald v. Commonwealth, 173 Mass. 322. (e) Likewise, it may be for an act committed before the habitual criminal act was enacted. People v. Raymond, 96 N. Y. 38. (f) In California, by statute, if the defendant admits the prior conviction that portion of the information is neither read to nor considered by the jury. People v. Carlton, 57 Cal. 559. (g) In Louisiana the previous conviction should not be charged in the information and is only considered by the judge in passing the sentence. State v. Hudson, 32 La. Ann. 1052.
   REVELLE, J.

Defendant'was charged by indictment in the circuit court of the city of St. Louis with the crime of larceny from the person, and with having been convicted of a former felony, it being alleged that, on the 3rd day of May, 1909, he was convicted of larceny from the person, and after sentence, imprisonment in the penitentiary and discharge upon compliance with the sentence, he committed a second offense of larceny from the person. To that portion of the indictment charging him with a former conviction he filed a plea of former jeopardy, which he styles a “plea of res judicata,” and which is as follows:

“And the said John Collins in his own proper person, cometh in the court here and having heard the said indictment read, says, that the State ought not to further prosecute the said indictment against him, the said John Collins, charging him with being an habitual criminal under section 4913, Revised Statutes 1909, because on June 3, 1914, the same matters and facts set up in the indictment in this cause were set up and plead in- the indictment in case No. 201, February Term, 1914, in Division No. 11 of the Circuit Court of the City of St. Louis for Criminal Causes, and this defendant says that all the matters and things alleged in the indictment in this case, with reference to charging him with being an habitual criminal under and by virtue of section 4913, Revised Statutes 1909, alleged in the indictment herein, are the same matters and things and charge, conviction and confinement as alleged in the indictment aforesaid, upon which he was duly tried and acquitted by a verdict of the jury on June 3, 1914, in case No. 201, February Term, 1914.
“Defendant says that the offense of being an habitual criminal, as alleged, and all the facts upon which the same are bottomed were fully and finally adjudicated by the verdict of the jury rendered in the aforesaid case No. 201, February Farm, 1914, in the Circuit Court of the City of St. Louis for Criminal Causes, Division No. 11, wherein defendant was duly tried by a jury and acquitted of being an habitual criminal, and this he is ready to verify.
“Therefore, he prays judgment and that by the court he may be dismissed and discharged from the said premises in the said indictment above specified.”

To this plea a demurrer was filed by the circuit attorney, and was by the court sustained. After arraignment and plea of not guilty defendant was tried by a jury, found guilty as charged, and his punishment assessed at imprisonment in the penitentiary for a term of seven years.

No bill of exceptions was filed, and the only question presented by this record is the action of the trial court in sustaining the demurrer to the plea of former jeopardy.

We have not been favored with a brief from appellant, but have his views through the oral argument of counsel.

At the threshold we are confronted with the State’s insistence that the plea is defective in form, in that it does not set out the indictment, verdict or W^-gment, or any of these. The greater weight of authority is to the effect that the plea autrefois acquit or autrefois convict should ordinarily set out accurately and fully the former indictment, and this because the identity of the two offenses is the very gist of it, and, further, because, before it is availing, the former conviction or acquittal must be had upon a valid indictment, and such identity and validity cannot otherwise be made duly to appear. If this plea went to the offense alleged, instead of merely to the charge of a former conviction, we would hold that, in order to fulfill the generally accepted requirements, it was necessary to set out the indictment literally, or at least so much thereof as would enable the court to determine from the averments the questions of identity of offenses and validity of the indictment. In view, however, of our impressions as to the true cast and character of the charge of former conviction, it can hardly be said that the sufficiency of this particular plea must be determined by that test. There is not in such cases involved any identity of offenses because there is no distinct offense alleged. It has never been held in this State that in an indictment alleging a former conviction it was necessary to set out the indictment, judgment or verdict, it being sufficient to merely allege in general terms the conviction, date thereof, sentence, imprisonment and discharge upon compliance with the sentence. [State v. Moore, 121 Mo. l. c. 519.] If the charge in the indictment can be thus briefly stated, it would seem illogical to require more of the plea. The instant plea, however, is defective in one substantial part, and this will be noticed in the succeeding paragraph of the opinion.

Loose and misleading language sometimes used in opinions which have dealt with the statute prescribing punishment in cases of second convictions seemingly is the basis of appellant’s error. This statute creates no offense, and in no manner authorizes a conviction on a charge of being an habitual criminal, or anything else. It is not even a part of the article on “Offenses,” but is incorporated in the article on “Miscellaneous Provisions and Definitions.” It only prescribes a punishment, and provides that in case of a second conviction the penalty shall be severer “because by his persistence in the perpetration of crime he has evinced a depravity, which merits a greater punishment.” [People v. Stanley, 47 Cal. 113; State v. Moore, 121 Mo. l. c. 519, and cases cited.] As said in People v. Raymond, 96 N. Y. l. c. 39: “The first offense was not an element of or included in the second, and so subjected to added punishment, but is simply a fact in the past history of the criminal, which the law takes into consideration when prescribing punishment for the second offense. That only is punished.” The punishment is merely enhanced from the character of the criminal and is inflicted for the offense last committed. [Howard v. State, 139 Wis. l. c. 532; McIntyre v. Commonwealth, 154 Ky. 149; Commonwealth v. Hughes, 133 Mass. 496.] In some jurisdictions it is not even necessary to charge the previous conviction, this being considered only by the court in passing sentence. [State v. Hudson, 32 La. Ann. 1052.]

In some states we find statutes prescribing a severer punishment on a third conviction than the additional punishment provided for on a second conviction, and these statutes have been found free of constitutional objections. If the contention of appellant is correct such a statute could not be effectual, because, under such a theory, when the State utilized in the second case the conviction in the first it would be unable to again use the conviction in the first for the purpose of enhancing the punishment in the case of the third conviction.

This court in State v. Moore, 121 Mo. 514, held that the section prescribing a greater punishment for: a second offense than for the first is not unconstitutional, either upon the ground of putting a person twice in jeopardy or prescriibng different punishments for different persons committing the same offense, it being said that this is not a punishment for the same offense for the second time, but a severer punishment for the subsequent offense. Further emphasizing the legislative intent as here interpreted, section 4914, Revised Statutes 1909, provides that persons convicted in other states, or in a foreign country, of an offense, which, if committed here, would be punishable by imprisonment in the penitentiary, shall, upon conviction for any subsequent offense within this State, be subject to the severer and additional punishment prescribed by the section under consideration. This section has recently undergone review by this court in State v. Levy, 262 Mo. 181. It is clear that under this statute no conviction could be had, and no punishment thereunder assessed unless the jury first found the defendant guilty of the particular offense charged in the indictment, and ip this relation it is not amiss to note the plea’s defective form. It no where appears from the plea whether the alleged former acquittal was on the charge of former conviction alone, or whether on the offense itself. If the defendant in that case was acquitted of the offense itself, it would necessarily follow that the question of his former conviction was not, and could not have been, passed upon, since such was but a mere incident to the main charge, and was not of such a separate and distinct character as to admit of an affirmative finding in the event of acquittal on the alleged crime. It is only in case of a. conviction of the offense charged that’an affirmative finding on this element is warranted. If he were convicted of the crime itself, but was acquitted on the charge of a former conviction, this fact should have been distinctly pleaded, and the plea discloses it was not.

The demurrer to this plea was properly sustained, because of insufficiency both in form and substance, and the indictment, verdict and judgment appearing regular and in proper form the judgment must be affirmed. It is so ordered.

Walicer, J., concurs; Faris, P. J., not sitting.


text:
    THE STATE v. FEATHERSTONE POWELL, Appellant.
    Division Two,
    November 30, 1915.
    1. CONFESSION: Law of Case. A ruling upon a former appeal that a written confession obtained by the police captain and other officers from defendant was as a matter of law not voluntary and therefore inadmissible, becomes the law of the case on a second trial, unless a different state of facts is shown.
    2. -: Swearing Away Legal Defects. Legal defects which ^ arose from the State’s affirmative proof and which as a matter of law destroyed the voluntary character of defendant’s alleged confession on the former trial, cannot be sworn away by the same witnesses upon the second trial without a commission of perjury. If the facts pertaining to the voluntary character of the confession were fully developed at the first trial, a holding that, upon the State’s own showing, the confession' was not voluntary and therefore inadmissible, became the law of the case on a second trial.
    3. -: Other Oral Confessions. But tha inadmissibility of that written confession, obtained by policemen after continually “sweating” defendant for eleven hours, does not affect the admissibility of a prior oral confession made to a special officer which was not involved in the former ruling.
    4. -: Guilt Dependent Upon; Considerations of justice demand that great caution should be used and great exactness required in determining the admissibility of a confession by defendant where without that confession there is no substantial evidence of his guilt; and especially should that caution be observed where the confession contains a statement of fact which is conclusively shown to be false.
    Appeal from Jackson Criminal Court. — Hon. Ralph 8. Latshaw, Judge.
    Reversed and remanded,

      Horace 8. Kimbrell and Griffin & Orr for appellant.
    (1) On its face said confession shows it was not voluntary. The evidence shows it was not voluntary. Considering the fact that appellant was a colored man, twenty-three years old, a janitor for nine years in one position, his mental _ qualifications, his surroundings and the fact that nine police officers were sweating him for twelve hours, and the language of the confession itself, the trial court erred in admitting the purported confession in evidence, especially after it appeared that Captain Stone and officer Boullt had told appellant that “it would be best for him to tell the truth” and “it would help him to tell the truth.” State v. Brock-man, 46 Mo. 566; Underhill on Criminal Evidence, sec. 128; Wharton on Criminal Evidence, p. 1328; State v. Fredericks, 85 Mo. 145; 12 Cyc. 464; State v. Powell, 167 S. W. 559; State v. Thomas, 250 Mo. 211. (2) This court ruled on the former appeal of this case that as a matter of law, on its face the alleged confession was inadmissible in evidence, and the trial court erred in permitting the said confession to be again introduced in evidence and read to the jury. The question of its admissibility was res judicata. State v. Powell, 167 S. W. 559; 7 Ency. Ev., p. 838; Buchanan v. Smith, 75 Mo. 463; Hoyt v. Green, 33 Mo. App. 205; Cole v. Clark, 3 Wis. 292; 3 Van Fleet on Former Adjudication, pp. 1310-1316; Given v. Wag-goner, 116 Mo. 143; May v. Crawford, 150 Mo. 564; Holmes v. Royal Loan Assn., 166 Mo. App. 719; Haverstock v. Rogers, 177 Mo. App. 446; Ward v. Harén, 167 S. W. 1065; Roth v. St. Joseph, 167 S. W. 1155.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
    (1) Admissibility of confession is a question for the court. State v. Patterson, 73 Mo. 605; State v. McKenzie, 144 Mo. 48; State v. Stebbins, 188 Mo. 387; State v. Patterson, 73 Mo. 706; State v. Hattman, 196 Mo. 126; State v. Spaugh, 200 Mo. 596; State v. Hop-kirk, 84 Mo. 283; State v. Brennan, 164 Mo. 510; State v. Wooley, 215 Mo. 620; State v. Ruck, 194 Mo. 437; State v. Barrington, 198 Mo. 109; 'State v. Ammons, 18 L. R. A. (N. S.), 768, and notes, p. 777; State v. Brooks, 220 Mo. 83; State v. Wilson, 223 Mo. 188; State v. Powell, 250 Mo. -216. (2) Cases where the question as to whether the confession was voluntary or involuntary were, or should have been, submitted to the jury: State v. Wooley, 215 Mo. 682; State v. Stebbins, 188 Mo. 396; State v. Jones, 171 Mo. 407; State v. Barring-ton, 198 Mo. 109; State v. McKenzie, 144 Mo. 44; State v. Thomas, 250 Mo. 210; Ammons v. State, 18 L. R. A. (N. S.) 842. (3) Confessions are presumed to be voluntary until the contrary is shown. State vl Armstrong, 203 Mo. 559; State V. Stebbins, 188 Mo. 397; State v. Jones, 171 Mo. 406; State v. Patterson, 73 Mo. 706; State v. Meyers, 99 Mo. 119; State v. Hattman, 196 Mo. 127; State v. Spaugh, 200 Mo. 597; Ammons v. State, 18 L. R. A. (N. S.) 783. (4) If it be proper to- submit to the jury under appropriate instructions the question whether the confession is voluntary or involuntary, then and in that event the finding of the jury concludes the appellate court on disputed facts. State v. Fields, 234 Mo. 627; State v. Sharp, 233 Mo. 269; State v. Cannon, 232 Mo. 205; State v. Sassaman, 214 Mo. 738; State v. Fogg, 206 Mo. 696; State v. Tetrick, 199 Mo. 100; State v. Smith, 190 Mo. 723; State v. Richmond, 186 Mo. 87. (5) That the confession was made to an officer after the arrest does not tend to prove that the confession was improperly obtained. State v. Spaugh, 200 Mo. 597; State v. Brennan, 164 Mo. 510; State v. Barrington, 198 Mo. 109; State v. Wooley, 215 Mo. 682; State, v. Church, 199 Mo. 631; State v. Phelps, 74 Mo. 136; State v. McClain, 137 Mo. 316; State v. Northway, 164 Mo. 316; State v. Simon, 501 Mo. 370; State v. Carlisle, 57 Mo. 102; State v. Shackelford, 148 Mo. 493; State v. Vaughn, 152 Mo. 73; State v. Wilson, 223 Mo. 178; State v. Green, 229 Mo. 651; Ammons v. State, 18 L. R. A. (N. S.) 796. (6) A confession made to one not in authority who said to accused that he was satisfied that he was guilty and that it was best to tell the truth is admissible. State v. Keller, 174 S. W. 71. (7) That the questions propounded to the defendant assumed his guilt, or that he was not warned that his statement would be used against him does not render such statement inadmissible. State v. Barrington, 198 Mo. 109; State v. Phelps, 74 Mo. 136; State v. Brooks, 220 Mo. 83; Ammons v. State, 18 L. R. A. (N. S.) 802; State v. Raftery, 252 Mo. 80. (8) It is no objection to the admissibility of a confession that it was made by the accused when he was without counsel, nor that he was not informed that he need not make a statement, or that any. statement he might make would be used against him. State v. Gorham, 67 Vt. 365; State v. Patterson, 68 N. C. 292; Com. v. Sturtivant, 117 Mass. 122; State v. Barrington, 198 Mo. 23. (9) That the accused while under arrest was told by the officer in charge that if he was guilty of the offense charged it would be better to tell the truth about it, and thereupon the accused confessed, does not render the confession involuntary. State v. Armstrong, 167 Mo. 269; State v. Patterson, 73 Mo. 707; State v. Hopkirk, 84 Mo. 278; State v. Anderson, 96 Mo. 249; State v. Lipscomb, 160 Mo. 140; State v. Phelps, 74 Mo. 136; State v. Hedgepeth, 125 Mo. 22. Contra: State v. Powell, 250 Mo. 250; State v. Keller, 174 S. W. 72. (10) The admissions of an accused are always admissible in evidence against him when freely and voluntarily made. State v. Shout, 263 Mo. 370; State v. Wilkins, 221 Mo. 444; State v. Green, 220 Mo. 642; State v. Witherspoon, 231 Mo. 706; State v. Roberts, 201 Mo. 702; State v. Atken, 240 Mo. 262; State v. Butler, 258 Mo. 436. (11) The rule of stare decisis, like other rules, has its exceptions, and the rule relaxes when a mistake was made on the former appeal or when it would work injustice and likewise where the facts are different. Mangold v. Bacon, 237 Mo. 511; Davidson v. Mayhew, 169 Mo. 265; Bealy v. Smith, 158 Mo. 521; Fuchs v. St. Louis, 167 Mo. 652. (12) When no direction is given on a former appeal in remanding a cause for a new trial, there is no adjudication made of the facts at issue in the case and the matter at issue remains as it was at first, unhampered by anything which occurred on the former appeal. Kelly v. Thuey, 143 Mo. 437; Baker v. Railroad, 147 Mo. 151; Mangold v. Bacon, 237 Mo. 516.
   FARIS, P. J.

Defendant, convicted in the criminal court of Jackson County of murder in the first degree, and sentenced to imprisonment in the penitentiary for life, after the usual motions, appeals.

This is the second appeal in this case. [State v. Powell, 258 Mo. 239.] The facts of the homicide out of which this case arises have already been before us three times. [State v. Bonner, 259 Mo. 342; State v. Brown, 247 Mo. 715 ; State v. Powell, supra.] The facts proven upon the trial below from which the instant appeal is taken, differ in no material respect from those shown by the record in the other appeal herein, formerly considered by us. The evidence tended to prove that defendant, with one Arthur Brown and George Bonner, whose respective connection with this homicide is to be found detailed ip State v. Brown, supra, and State v. Bonner, supra, together with defendant’s two brothers, Halsey Powell and Cottrell Powell, in attempting to rob the freight office of the Missouri Pacific Railroad at Kansas City on December 1, 1911, shot and killed Albert Underwood, a cashier in said office. But as all the attending facts and circumstances are fully set forth in the two cases last cited, and as the alleged confession of the defendant,, as well as the facts and circumstances under which it was made and upon which his former appeal and the instant one both turn, are to be found set forth in State v. Powell, supra, we need not cumber the books with these facts again. So we content ourselves with referring the curious reader to the three cases above cited for such facts as we may not set out in detail in our discussion of the case.

OPINION.

When this case was here before it was reversed and remanded for a new trial on account of two things, which we then ruled constituted reversierror. the refusal to admit testimony offered by defendant in contradiction of the alleged confession, showing the whereabouts of Halsey Powell at the instant of the homicide, and (b) the action of the court in admitting the paper signed by defendant, purporting to be his confession. No other points were discussed, except such as were ancillary to the above two. Our ruling upon the last point, touching the admissibility of the defendant’s confession, was thus summed up:

“It is not necessary to discuss the matter at greater length. We are convinced that the written confession was not voluntarily made, and should, therefore, have been excluded by the court. [State v. Thomas, 250 Mo. 189, l. c. 211, and authorities there cited.] ’ ’ — State v. Powell, 258 Mo. l. c. 251.

Notwithstanding this holding the case is back here with the- single point mooted that the learned court nisi erred in the instant case in admitting the identical confession which we had already ruled was inadmissible.

We are entirely satisfied with the correctness of our ruling upon this point when the case was here before. It comes to us now absent no vices that it contained then. The testimony going to show its voluntariness vel non (herein as formerly still strenuously ássailed) is substantially the same that it was before, except that the witness Boultt (and possibly the' witness Phillips, though as to the latter the record is not clear), now relates an antecedent oral confession which it seems was not mentioned by them in their former testimony. (We may be in error as to this fact; we gather it from the four corners of the record only and have not compared the evidence of these two witnesses with their former testimony on this matter on the other trial.) But, even should we be in error as to this, it can not change the law of the case. For when, upon a full investigation of the question-upon the former appeal we squarely ruled thaf the confession of defendant to Capt. Stone and the police officers was obtained in a manner which as a matter of law rendered it not voluntary and therefore inadmissible, this ruling became the law of the case upon another trial and likewise upon a second appeal, unless upon a second trial nisi a different state of facts was shown. [May v. Crawford, 150 Mo. 504; Bealey v. Smith, 158 Mo. l. c. 521; Fuchs v. St. Louis, 167. Mo. l. c. 652; Steinhauser v. Spraul, 114- Mo. 551.]

To ascertain whether such difference existed as would serve to change our ruling we do not need to compare this record with the former one, as we would if necessary be permitted to do. For a casual reading of the present record discloses that the identical vices for which we before held the alleged confession to be inadmissible because not voluntary, inure in the one before us. Indeed, it is fairly patent that-if legal defects, arising from matters 'of affirmative proof, existed before in laying the foundation of voluntariness in order to render the confession admissible in -the former trial, these defects could not be sworn away upon this trial, absent perjury. Nor in our view have they been so sworn away. Error before arose -from the substantial fact that nine officers, for the most part police, collectively, or individually, or in pairs or trios, “sweated” defendant continuously from two o’clock in the afternoon till one o’clock next morning, at which time, after the police captain Stone and others of the nine apparently- in Stone’s presence, had told defendant it would “be best for him to tell the truth,” he made and signed the alleged confession in evidence. Upon this record, as upon the former, we do not credit the statements of the defendant that he was beaten and maltreated; for on this point he is overwhelmed and utterly discredited by countervailing testimony. But here upon the instant record the other identical infirmities of foundation appear affirmatively from the testimony of witnesses for the State.

So we do not need to pass upon the mooted and troublesome point whether in a criminal case a ruling by us upon an evidentiary matter, the admissibility of which depends on a foundation laid, could become “the law of the case” iipon subsequent trials and appeals, so far as to conclude appellate review here, regardless of whether or not a new and different state of facts was shown upon such subsequent trial. But that such a holding in the absence of an essential dil • ference in facts proven upon the two trials would become the law of the case on such last trial, we do not question or doubt. Since herein we find no such essential difference, we continue to rule as we ruled before.

For the error in admitting the alleged oral and' written confession made at Station Two in the presence of and to the nine officers,-this case must be reversed. What we say does not apply to the alleged prior confession made to special officer Boultt before defendant was “sweated.” Upon a trial anew, a' proper foundation being laid, we see no reason why these alleged admissions of defendant will not be competent.

No unbiaséd reader of this record can fail to be impressed with some doubt as to the guilt of this young negro defendant. If his confession he stricken down there is left scarcely a shred of proof of his guilt. And at least one fact contained in his alleged confession, to-wit, that his brother Halsey was present at, and participating in the commission o'f this crime, is conclusively shown to be false, if a statement may be proven false by human evidence. While confessedly it is a very human failing, superinduced doubtless by constant dealings with the hardened criminal classes, which induces police officers and detectives to-follow the popular attitude and presume the guilt of an accused person rather than his innocence, which latter presumption the law enjoins upon the courts; nevertheless this popular presumption of guilt and the court-ruled and legal presumption of innocence cause trouble and misunderstandings in the administration of justice when they clash. This case proves the rule. For while defendant may be guilty there is such grave doubt of it, and the fact of guilt rests upon so thin a point, as to give us pause in so ruling, out of hand. His confession absent, he is upon the other facts shown, as innocent as the unborn babe. Therefore considerations of justice demand that great caution should be used and great exactness required in so close a ease upon so grave a charge. A fortiori, since our rulings may be as well a bane to the innocent as they are the means of visiting justice upon the guilty. Abstractly, a wrong ruling as to a gnilty person does not harm society; and hut aids in doing justice upon him who deserves punishment; but such a ruling lives to be a precedent for the hurt and harm of the innocent, and so our duty is to write the law by which both the guilty and the innocent may be safely tried. A rule of law fit only to try tlie guilty is no better tban lynch law.

It results that for the error noted this case must be reversed and remanded for a new trial. Let this be done.

All concur..