author: •GOODE, J.

text:
    PATRICK SULLIVAN, Administrator of Estate of James Joseph Sullivan, v. ANNA L. A. CHAUVENNET, Appellant.
    Division One,
    June 2, 1920.
    1. EXCESSIVE SPEED: Automobile: Question for Jury. Where the speed allowed by ordinance was ten miles an hour and there was positive testimony, corroborated by relative facts, that the automobile was running from fifteen to twenty miles an hour at the time it struck the little boy, there is solid ground for submitting to the jury the issue of unlawful and dangerous speed.
    2. -: -: Slowing Down: Intersecting Street. Where two separate roadways run along a street and a cross-street debouches into the roadway an automobile is not running on,' neither the statute nor the ordinance requiring an automobile “upon approaching an intersecting highway” to slow down, applies; they, only apply where one street opens into another and vehicles usually run past the month of an intersecting street; where the east-and-west street bears northward from the east side of the north-and-south street forty feet to the west side, the two streets are not intersecting streets within the meaning of either the statute or ordinance, and an automobile coming north on the east side of the north-and-south street is not required by either to slow down on the sole ground that they .are intersecting streets; and an instruction which directs a verdict for plaintiff if the “automobile approached the intersection of said streets without slowing down,” is error.
    3. -: -: —-: -: Verdict on Other Ground. If the instruction directed a verdict for plaintiff on the ground that the automobile approached an intersecting street without slowing down, which was erroneous because within the meaning of the statute the cross-street was not an intersecting street, a verdict for plaintiff cannot be permitted to stand, although the evidence clearly establishes another act of alleged negligence, namely, failure to signal; for in such case, it cannot be known which negligent act was found by the jury to be the proximate cause of plaintiff’s injury.
    4. CONTRIBUTOKY NEGLIGENCE: Failure to Look: Question for Jury. The thirteen-year-old boy, at seven-thirty in the evening of October 2nd,, left the east side of the street and started to run diagonally to the southwest corner of the two crossing streets. Defendant’s automobile was driving north with five brilliant headlights. According to the driver’s testimony the boy was only one foot from the east curb when he was struck and the automobile was only three feet from him when he left the curb; according to the boy’s testimony, and other evidence, he was seventeen feet from the curb and only three feet from the east streetcar rail when he was struck. Held, that the conclusion of contributory negligence on the part of the boy in not looking for the automobile before leaving the sidewalk, is not compelled, but is an issue for the jury.
    Appeal from St. Louis City Circuit Court. — Hon. Karl Kimmel, Judge.
    Reversed and remanded.

      H. W. Allen and Blodgett é Rector for appellant.
    (1) The demurrer to the evidence should have been sustained. Pannell v. Allen, 160 Mo. App. 721; Winter v. Van Blarcom, 258 Mo. 418; Hyde v. Hubinger, 87 Conn. 704; Stahl v. Sollinberger, 246 Pa. 525; Curley v. Baldwin, 90 Atl. 1; Sullivan v. Smith, 91 Atl. 456; Battles v. United Rys. Co., 178 Mo. App. 596; Cray v. Wabash, 179 Mo. App. 541; Hight v. American Bakery Company, 168 Mo.'App. 431. (2) Plaintiff was guilty of contributory negligence as a matter of law. Winter v. Van Blarcom, 258 Mo. 418; Sullivan v. Chauvenet, 186 S. W. 1090 (1. c.1093, Separate Opinion of Allen,'J.); Curley v. Baldwin, 90 Atl. 1; Sullivan v. Smith, 91 Atl. 456. (3) The instruction given on behalf of plaintiff as modified by the court covering the case, is erroneous in allowing the jury to find that plaintiff’s injury was caused by defendant’s negligence in running said automobile at a high and dangerous rate of speed, or without sounding any warning or giving any signal of its approach, or without slowing down as said automobile approached the said intersection of said streets. Pannell v. Allen, 16r‘ Mo. App. 721; Winter v. Van Blarcom, 258 Mo. 418; Laws 1911, chap. 83, sec. 2. (4) The instruction given on behalf of plaintiff covering the case, is erroneous in that it allows the jury to find that plaintiff’s injury was caused by defendant’s negligence in approaching the intersection of said street without sounding any warning or giving any signal of its approach or without slowing down, inasmuch as there was no. evidence showing or (Sending to show that the defendant did not slow up in approaching the place of the accident. Flannigan v. Nash, 190 Mo. App. 578; Dedo v. White, 50 Mo. 241; Schumacher v. Brewers Co., 247 Mo. 141; Black v. Ry. Co., 217 Mo. 685.

      Walter B. Douglas and Boebhe $ Clay for respondent.
    (1) Whether or not the plaintiff was guilty of contributory negligence was a question of fact and was properly submitted to the jury. Frank el v. Hudson, 271 Mo. 495; Hodges v. Chambers, 171 Mo. App. 563; Bongener v. Ziegenheim, 105 Mo. App. 328; Ginter v. 0 ’Donoghue, 179 S. W. 732; Sullivan v. Chauvenet, 186 S. W. 1090; Schmidt v. Railroad, 169 Mo. 285; Yaughan v. Scade, 30 Mo. 600; Rowe v. Hammond, 172 Mo. App. 213; Campbell v. St. L. Sub. Ry. Co., 175 Mo. 175; Muffin v. Transit "Co., 196 Mo. 579; Deschner v. St. L. & M. Ry., 200 Mo. 237; Burgis v. Railroad, 112 Mo. 238; Jackson v. Butler, 249 Mo. 342. No demurrer to the evidence having been offered by defendant at the end of the whole case, this question is not now open. (2) There was abundant evidence to support the jury’s finding. . That the machine was run at a high and dangerous rate of speed is shown by Daly’s testimony that it was running between fifteen and twenty miles an hour; by Dr. Dean’s testimony that the boy’s kidney was cut in two, and that to cut the kidney would take a very severe blow; by the fact that the heavy steel fender or mud guard of the car, which was the part that struck the boy, was bent upward, and by the fact that the car ran from twenty-five to forty feet after striking the boy. That no warning was sounded or signal given on approaching Cote Brilliante Avenue on the west is testified to by defendant’s witness, the chauffeur, Flynn. The same witness testified that he did not slow down; that he could slow down enough to get his car in control by changing the speed, but that he did not change the speed. As to the’ physical facts showing speed, see Haake v. Davis, 166 Mo. App. 254; Aronson v. Ricker, 185 Mo. App. '534. Generally, see Laws 1911, pp. 326, 330; Ordinance of St. Louis, secs. 13,1551; Mitchell v. Brown,. 190 S. W. 354. (3) Defendant contends that the first instruction given was erroneous “inasmuch as there was no evidence tending to show that the defendant did not slow up in approaching the place of the accident.” The defendant cites decisions. We ask the court’s attention to the evidence.
   •GOODE, J.

Between seven-thirty and eight o-clock in the evening of October 2,1912, James J. Sullivan, then a boy thirteen years old, was collided with and seriously hurt by an automobile owned by defendant and driven by a chauffeur employed by her. The injured boy began this action, but as he has died since it was tried. Patrick Sullivan, the administrator of his estate, has been substituted as the plaintiff. For convenience we will speak of the boy as still the plaintiff.

As related by the boy and corroborated in important particulars bv other testimony, the facts are these: Th plaintiff bad been playing a game with some boys at Garfield and Union Avenues, two intersecting streets in St. Louis, the former running east and west and the latter north and south. Boys of another group were teasing the proprietor of a hardware store nearby and finally the proprietor chased them. Plaintiff was afraid he might be caught and charged with the mischievous acts done in front of the hardware store, though he said he had nothing to do with them; so he ran, too, and southwards along the east side of Union Avenue toward another east-and-west street which intersected it; that is, Cot« Brilliante Avenue,. Cote Brilliante does not -run across Union in a straight course, but has a jog in it at Union, which it enters at the east side about forty feet south of where it enters at the west. Plaintiff ran along the east sidewalk of Union Avenue until he reached a point opposite the mouth of Cote Brilliante on the west side of Union, which was a common crossing place, and there he started across Union, still running to join a boy friend on the southwest corner of Union and Cote Brilliante;. He was looking south, but saw no automobile coming, Double street car tracks run along the center of Union Avenue, with roadways on either side, and when plaintiff was within three feet of the east street-car track and seventeen feet from the east curb of Union, he was run into by defendant’s automobile, knocked down, got up, walked to the sidewall?, fell there, was taken up, and conveyed in the automobile that hurt him to a hospital. The machino was stopped about thirty-five feet north of the point where it knocked plaintiff down. No warning of its approach had been given by horn or other noise, and he had not observed it, but its headlights were burning and he could see several blocks to the southward. The chauffeur went to the plaintiff while plaintiff was lying on the ground, and was asked why he didn’t sound a horn, and the chauffeur replied he didn’t have time. The automobile was a heavy one and the fenders on it were heavy. The left front fender was the part that struck plaintn and it was bent slightly by the blow. A witness testified he noticed the automobile just before it hit the boy; that it was running “at full speed” — fifteen or twenty miles an hour. An expert said it could have been stopped, considering the condition of the street and the speed, in fifteen or twenty feet. Traffic ordinances of the City of St. Louis regulating the driving of automobiles are in proof.

The driver of the automobile testified as follows: He had stopped just south of East Cote Brilliante Avenue to adjust his rear light, and after starting again was running about six miles an hour; plaintiff ran into the automobile, having started southwest across the driveway of Union Avenne, when the automobile was within three feet of him; he was looking back in the direction of the proprietor of the hardware store who was chasing some boys; when he saw plaintiff the clutch was thrown out and the brake applied, which were the acts to do 1c stop the car; also the car was turned toward the east curb of Union Avenue and hit plaintiff only a foot from the curb; ran three feet after the collision; didn’t blow his horn because he hadn’t time to do so after he saw plaintiff.

The injured boy was given attention by a physician at the hospital, where he complained of pain in the region of his left kidney; showed no bruise or swelling, but was pale and weak; was taken home that evening; suffered much through the night, and the next day, or the day after, commenced to bleed from the left kidney, and the hemorrhage continue^ until he came near dying; was taken again to the hospital and an operation performed. The left kidney had been tom in two — the upper third was torn off. The kidney was removed and after several weeks the plaintiff was able to leave the hospital, and in two months he returned to school, but remained weak for a long time.

The specifications of negligence counted on in the petition are these: first, that by the exercise.of ordinary care, the driver could have seen plaintiff crossing the street in time to avoid injuring him; second, in violation of the duty imposed by law and ordinance on persons operating automobiles on a public street, the driver of the car ran it at a high and dangerous speed and in excess of ten miles an hour'; third, the driver sounded no warning; fourth, did not reduce speed as he approached the intersection of Cote Brilliante and Union Avenues.

The answer was a general denial and an averment that plaintiff caused or contributed to his injury by running backward into the street from the curb on Union Avenue at a point not customarily used by pedestrians as a crossing, without looking to see whether a vehicle was approaching, and in so doing ran into and collided with the automobile, when, by using reasonable care to look for approaching vehicles, he could have avoided the collision.

The jury returned a verdict against defendant for $12,500, and judgment having been entered on the verdict, the defendant appealed.

The court instructed for a verdict for the plaintiff James Joseph Sullivan, if the jury found defendant’s chauffeur negligently ran the automobile against plaintiff at a high and dangerous speed, or without sounding a warning or giving any signal of its approach, or without slowing down as the automobile approached the intersection of Cote Brilliante and Union Avenues, provided the plaintiff was found to have .been exercising ordinary care for his own safety. The instruction omitted to submit the question of whether the driver of the car could have seen the boy, had ordinary care been used, in time to avoid running.against hipa, though an allegation to that effect was made in the petition. The defendant asked a. separate instruction concerning each of the three acts of negligence submitted to the jury, and charging that plaintiff was not entitled to a verdict for the particular act of negligence mentioned in the instruction; the total effect of these three instructions being that the plaintiff was not entitled to a verdict at all. We learn from the opinion of the St. Louis Court of Appeals that at the first trial the only issue of negligence left to the jury related to the omission of the chauffeur to sound a warning. We presume additional evidence was introduced at the second ■ trial, as a different view of the case was taken by the court in instructing the'jury, and rightly.-

The limit of speed allowed by municipal ordinance in the district of.St. Louis where the accident occurred, was ten miles an hour. There was testimony that the speed defendant’s automobile was- under when it hit the hoy was from fifteen to twenty miles an hour. This evidence, if believed, inclines to prove the speed was not only excessive, but dangerous. The car ran thirty-five or forty feet past the boy after colliding with him; the fender that struck him, a heavy one, was bent upward by the blow; he was knocked three feet away; his kidney was torn in two. We rule there was substantial evidence that the car was running at an unlawful and dangerous speed.

Wammg. An ordinance of the city required drivers of motor vehicles to sound their horns so as to warn pedestrians when they approached the crossing of a public street. The plaintiff was struck at a point on Union Avenue which was commonly used as a crossing, ac-cor(j*ng - testimony, and no signal was given as defendant’s car drew near that crossing. The chauffeur acknowledged he did not blow his horn when he started again after having stopped on the south side of the intersection of East Cote Brilliante Avenue with Union, a point some seventy feet south of the place where the boy was struck. He said, too, he did not signal at any time after resuming his journey and before the boy was hit; in fact, did not remember blowing the horn after he passed Delmar Avenue, an intersecting street many blocks south of Cote Brilliante. Possibly the fact that West Cote Brilliante opened into the west side of Union, was the cause of his omitting to signal as he approached the crossing; but as a commonly used crossing was there, the evidence tends to support a finding that it was an omission to comply with the ordinance, and cause for a finding that the chauffeur was negligent.

streetCtinS The court instructed it was ground for a verdict for plaintiff if the automobile approached the intersection of the streets without slowing down. For convenience in considering the propriety of that direction> we transcribe the instruction wherein it was given ;

“The court instructs you that if you find and believe from the evidence that on or about the second day of October, 1912, the defendant or her agent and servant was operating an automobile on Union Avenue at the intersection of said avenue with Cote Brilliante Avenue, and that both of said avenues are public streets of the City of St. Louis, and that the defendant or her agent and servant negligently ran said automobile at a high and dangerous rate of speed, or without sounding any warning or giving any signal of its. approach, or without slowing down as said automobile approached the intersection of said streets, upon and against plaintiff, striking and injuring him, and if you find and believe from the evidence that plaintiff’s injury was proximately caused by defendant’s negligence in one or more of said particulars above mentioned, and that the plaintiff at the time was exercising ordinary care for his own safety, then your verdict should be for the plaintiff.”

We remark that the three careless acts, either of which, if proved to have happened would warrant, according to the instructions, a verdict for plaintiff, are stated separately and divided by the word “or.” We remark, too, that the right of recovery, if the car approached the intersection of the streets without slowing down, is not based on neglect to slow down upon the driver’s apprehending or having reason to apprehend, the plaintiff was in danger of being run against, if the speed was not lowered; but on the bare fact that the speed was not lowered as the intersection was approached. Omitting to reduce speed was not, in itself (and independently of reason to anticipate striking some person if the rate of speed was kept up), negligent conduct unless the law of the State or a municipal ordinance required a reduction when approaching the place of the accident.

This is the statute that bears on the question: “Upon approaching a pedestrian who is upon the traveled part of any highway and not upon a sidewalk, and upon approaching an intersecting highway or a curve or a corner in a highway, where the operator’s view is obstructed, every person operating a motor vehicle shall, slow down and give a timely signal with his bell, horn or other device for signaling.” [Laws 1911, p. 327, sec. 8, par. 2.]

The question submitted was not whether the driver of the automobile neglected to ■ slow down upon approaching the plaintiff when the plaintiff was a pedestrian in the highway, but when the car approached an intersecting highway. Can it be said the statute' required the driver to slow down because he, while driving in the east driveway of Union, was drawing near to the line of the intersection of Cote Brilliante Avenue with the west side of Union, a street fifty-five feet wide, and with double street-car tracks in the middle and roadways on either side of the tracks? Was Cote Brilliante an intersecting highway in the statutory sense? We think not. The object of the law is to prevent collisions between motor vehicles and other vehicles and persons at the intersection of streets and highways, where collisions are apt to happen — at a point where one street opens into another and vehicles usually run past the mouth of the intersecting street. Where two separate roadways run along a street and a cross-street debouches into the roadway an automobile is not running on, the statute does not apply. It is to be borne in mind the statute does not refer to a crossing of a street or highway; that is, the point where pedestrians cross.

We next ask: Was there a city ordinance which required the chauffeur to diminish speed when approaching the crossing? The only ordinance which .can be argued to have that effect, after prescribing maximum-speeds for vehicles, lays this duty on drivers:

“And when turning the corner- of intersecting streets, avenues, boulevards or public places, or when traversing a curve or turn in a street; avenue, boulevard or public place where the view is. obstructed, the-rate of speed shall not be greater than six miles per hour.”

The driver of the car in question testified he was not exceeding six miles an hour. Other testimony goes to prove he was. But the act of negligence the instruction for plaintiff submitted to the jury, was not that the car was running more than six miles an hour “when turning the corner of intersecting streets” etc., or when the view was obstructed; but that the defendant’s driver approached the intersection of Cote Brilliante and Union Avenues “without slowing down.” That was a precaution the ordinance did not prescribe. It follows the instruction was erroneous in authorizing a recovery for the omission of the driver to do something not exacted of him by the law.

, Should the judgment be reversed for this error when another failure of duty, namely, not signalling, was established? We think it must; for the reason that it cannot be known which neglect was found by the jury to have been the proximate cause of the aceldent — omitting to signal, or omitting to slow down. If they thought the latter neglect was the sole proximate cause of the accident, then it was not the breach of a duty to the boy by defendant’s driver, and the verdict should have been for defendant.

Negligence!7 It is earnestly insisted the plaintiff was shown conclusively to have caused his injury by his own carelessness in darting suddenly off the sidewalk of Union Avenue in close proximity to the car; that he knew moving motor cars were frequent at the P°inb must have realized the need to look for them, and could have seen the five headlights of the defendant’s car had he looked southward before leaving the sidewalk. He said he looked and did not see the car; an improbable occurrence; we may say an impossible one, if he looked carefully, and with his mind alert to ascertain whether he could cross in safety. Therefore, the question is, should the plaintiff be held negligent in law for leaving the sidewalk when he did? If the car was only three feet away at the moment, and he was struck within a foot of the east curb, as the' driver said, then he was negligent. If he was struck as he said, and as other evidence tends to show, seventeen feet from the east curb, and only three feet from the east rail of the car track, the conclusion of contributory negligence on his part is not compelled; for this would make an issue for the jury as to whether the car was far enough away from him when he started to cross the street, to lead a reasonably prudent boy of fourteen years to attempt to cross in the belief that he could get over before the car reached him. The issue of his negligence as a cause, or factor in causing, the accident was left to the jury under a sound instruction, and rightly, we think.

The judgment is reversed and the cause remanded.

All concur, except Woodson, J., absent.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    THE STATE ex rel. NORTH KANSAS CITY DEVELOPMENT COMPANY v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals.
    Division One,
    June 2, 1920.
    1. INSTRUCTIONS: General Assignment. An assignment in the motion for a new trial in a civil case that “the court erred in refusing instructions as requested by defendant” is sufficient for purposes of a review of such instructions on appeal.
    2. -: -: Contrary Ruling of Court of Appeals: Certiorari. A ruling by the Court of Appeals that a general assignment in the motion for a new trial in a civil case that “the court erred in refusing instructions as requested, by defendant” is not sufficient to authorize a review of such instructions on defendant's appeal, Is in conflict with the ruling of the Supreme Court in Wampler v. Railroad, 269 Mo. 464, which, being a prior ruling, necessitates the quashing of the record of the Court of Appeals on certiorari.

      Certiorari.
    Record quashed.

      Kenneth MgC. DeWeese for relator.
    The opinion of the Court of Appeals is in conflict with and not in harmony with the opinions in "Wampler v. Railroad, 269 Mo. 464, and State ex rel. v. Reynolds, 213 S. W. 782. The decision is in conflict with Lyman v. Dale, 262 Mo. 253, and Wendell v. Railroad, 160 Mo. App. 561.

      Ellis, Cooh S Dietrich and Fred W. Lewis for respondents.
    (1) The opinion of the court is not in conflict with Lyman v. Dale, 262 Mo. 353. (2) The alleged error in refusing certain instructions is without merit as counsel for defendant has evidently overlooked the latest rulings of this court. The assignment of error in the motion for new trial was insufficient. Wynne v. Wagoner Undertaking Co., 274 Mo. 597; Cedarland v. Thompson, 200 Mo. App. 618; Probst v. St. Louis Basket & Box Co., 200 Mo. App. 568.
   GRAVES, J.

Certiorari to the Kansas City Court of Appeals, which-brings before us the opinion of tha1 court in the case of Arch Roy, Respondent, v. North Kansas City Development Company, Appellant. That case originated in a justice of the peace court, and was an action for damages, growing out of the fact that plaintiff was kicked by a mule owned by defendant. For the purposes of this case the details of that case are immaterial. Suffice it to say that from the court of the justice of the peace, it got to the circuit court, and from there on the appeal of the defendant therein to the Kansas City Court of Appeals, where the judgment of the Circuit Court was affirmed in an opinion filed, which opinion is now before us on the charge that it conflicts with our rulings.

At the trial in the circuit court certain instructions asked by defendant were refused, and their refusal urged as error in the Court of Appeals. • As to this assignment of error, the Kansas City Court of Appeals, said:

“In addition to the foregoing, defendant has complained of the refusal of instructions offered by it. The motion for new trial is not sufficiently specific to permit such an examination of such complaint.

“It reads that ‘the court erred in refusing instructions as requested by defendant. ’■ The later rulings of the Supreme Court are that that will not do. [Disinfecting & Mfg. Co. v. Bates Co., 273 Mo. 300; Wynne v. Wagoner Undertaking Co., 204 S. W. 15; State v. Dinkelkamp, 207 S. W. 770-771.]”

It will be noted that the cases cited by the Kansas City Court of Appeals are all cases from Division Two of this court, and they are cited as being “the latter rulings of the Supreme Court. ” The question here involved was determined in Wampler v. Railroad, 269 Mo. 464, and determined adversely to the ruling of our learned brothers of the Court of Appeals. At the time the instant case was determined, the Wampler case, supra, was the last expression of the Supreme Court, because it was a ruling upon the exact point by the whole court, and not by a mere division thereof. This- is made clear in the case of State ex rel. United Rys. Co. v. Reynolds, 213 S. W. 782. This is another expression of our Court in Banc, as was Wampler’s case. This ruling was made the very day that the writ of certiorari was granted in the instant case. It forced the granting of our writ. The same question had been just previously determined in Kilpatrick v. Robert, 212 S. W. l. c. 886. In that case the ruling in Wampler’s case was specifically approved and followed by all of Division One of this court. The question is not an open question here, and has not been since the Wampler case, and the opinion of our learned brothers not only conflicts with Wampler’s case, but with the other two rulings mentioned, snpra. The result is that the record of the Court of Appeals should be quashed, and it is so ordered.

All concur, except Woodson, J., absent.


author: WILLIAMS, P. .L

text:
    THE STATE v. VIRGIL DALE, Appellant.
    Division Two,
    June 4, 1920.
    PLEA OF GUILTY: Misapprehension: New Trial. Where a defendant has entered a plea of guilty to a felony under a misapprehension of his rights and has been misled by the prosecuting attorney to believe that if he would enter such a plea he would be paroled, whether the misleading was intentionally or unintentionally done, his motion for a new trial, based on such ground, should be sustained.
    Appeal from St. Charles Circuit Court. — Hon. Edgar B. Woolfolh, Judge.
    Reversed and remanded.

      W. Neustadt for appellant.
    (1) Where officers of the law went to defendant and told him that all they wanted was to recover the stolen goods, and that if they could get them, it would end the matter, and defendant informed them where they were, and was convicted on this confession, the confession was involuntary, and the conviction would be set aside. State v. Hagan, 54 Mo. 192. (2) Confessions or disclosures made under any promise or encouragement of any hope or favor are inadmissible. Hector v. State, 2 Mo. 166, 22 Am. Dec. 454; State v. Hunter, 181 Mo. 316; State v. Jones, 54 Mo. 478. (3) WTiere once a confession has been obtained through influence, a presumption arises that as subsequent confession flows from the like influence, and such presumption must be overcome before the confession can be given in evidence, State v. Jones, 54 Mo. 478; State v. Brown, 73 Mo. 631. (4) Where defendant and his counsel were led to believe by the words and acts of the judge that if defendant would plead guilty, he would be given the minimum sentence, and thereupon he did plead guilty and was given the maximum sentence, the court should have permitted him to withdraw his plea of guilty and-enter in its stead a. plea of not guilty. State v. Stephens, 71 Mo. '535; State v. Kring, 71 Mo. 551.

      Frank W. McAllister, Attorney-General, and G. P. Le Mire, Assistant Attorney-General, for respondent.
    (1) Motions for a new trial and in arrest of judgmeut must be filed before judgment and sentence is pronounced. State v. Dunnegan, 258 Mo. 376; State v. Rosenblatt, 185 Mo. 118; Morgan v. Keller, 194 Mo. 663; State v. Stevenson, 74 W. Ya. 392; 2 Bishop’s New Criminal Law, sec. 798; Secs. 5285, 5286, 5288, R. S. 1909. (2) The setting aside of judgment is largely discretionary with the trial judge, and, in the absence of an abuse of this discretion, refusal to set aside furnishes no basis for reversal. State v. Stevens, 71 Mo. 535; State' v. Kring, 71 Mo. 551; 2 Bishop’s New Criminal Law, sec. 798. (3) The trial court was without jurisdiction to set aside the judgment after the term at which same was rendered had expired. Kelley’s Criminal Law & Practice (3 Ed.), sec. 447; 16 C. J. p. 1326; State v. Williams, 147 Moi .14; United States v. Mayer, 235 U.. S. 55.
   WILLIAMS, P. .L

Defendant pleaded guilty in the Circuit Court of St. Charles County, to an information charging him with robbery in the first degree, in that defendant feloniously took seven dollars from the person of one Fr.ank J. Bull, by force and violence to his person. Thereupon the court sentenced defendant to five years’ imprisonment in the State Penitentiary.

At the time the plea of guilty was entered defendant was not represented by counsel, but afterwards and within four days defendant appeared by counsel and filed a motion for a new trial, setting up as a ground that he had entered a plea of guilty upon a promise that he would he paroled by the court. Testimony was heard by the court upon this motion and the motion was overruled. Defendant thereafter duly perfected an appeal to this court.

The evidence heard upon the motion for a new trial was as follows:

Synopsis op testimony op Vikgil Dale :

“My name is Yirgil Dale, age 23. I reside at 8403 Lowell, St. Louis, Missouri. I was employed 4at the Baden Car Shops. I was arrested with Alvin Meyer, charged with robbing Frank Bull, on the night of the 21st of February, in a salopn in St. Charles, by Sheriff John Grothe. After arresting me Mr. Grothe took me into a back room, adjoining the saloon and searched me, then took me outside of the saloon on to the street and had me turn my coat collar up, then had Frank Bull come and see if he could identify me as one of the men who had held him up and robbed him. Bull looked at me and said that he could not say that I was one of them. Then Mr. Grothe took me over and put me in jail. After Í was in jail about one-half or three-quarters of an hour, Mr. Hensler, the prosecuting attorney there, came over to the jail and the sheriff came and got me and took me into a room in the jail and the sheriff and Mr. Hensler began asking me questions about the robbery. I told them 1 did not know anything about it, but they kept on questioning me about the robbery and I kept telling them that I did not know anything about it.

‘ ‘ Then they put me back in the cell and took Alvin Meyer out. After awhile they came and got me and took me back to the room again and told me I might as well tell them about the robbery as Meyer had made a statement that we had robbed Mr. Bull. Mr. Hensler said to me that if I would make a confession and say that I held up Mr. Bull and took money from him it would be easier for me. He said that he was my friend and that if I would say that I had committed the robbery and sign a statement and plead guilty, the Court would parole me. After talking the matter over with him and the sheriti for quite awhile, I believed what each of them said to me, and signed the statement, and when I was brought into court I plead guilty, believing that I would be parole ci by the court, as Mr. Hensler told me the night I was arrested I would be: but instead of paroling me they gave me five years in the penitentiary.

“Question by the Court: ‘Weren’t you represented by an attorney at the time that you entered a plea of guilty?’

“Answer by Virgil Dale: ‘I did not nave an attorney. They told me I did not need one. Mr. Hensler also told me there in jail that night that Mr. Bull did not want his name in court and that if I would plead guilty he would see to it that I was paroled.

Synopsis, op testimony op John Dale :

“My name is John Dale. I am the father of Virgil Dale. After Virgil was arrested and in jail waiting-for trial, I went to see Mr. Hensler, prosecuting attorney, to see what Virgil was charged with. Mr. Hensler told me that it was highway robbery; that he had held up Frank Bull of St. Charles and robbed him of $7. I tallied with Mr. Hensler about the case, and said that I would get a lawyer for Virgil, but Mr. Hensler said it was not necessary, the boy has plead guilty and you need not do it. He said he would go with me to the judge and see what could be done about it, and that we would have a talk with the judge about paroling Virgil.

‘ ‘ On the morning' of the 18th of March [this was the day that Virgil’s trial came up], I had a talk with Mr. Hensler, and he said the judge would be in on the 10:48 train, he supposed, and that we could see him; but Mr. Hensler said that he would see the judge and that everything would be alright, and I just relied on what Hensler said and did not get a lawyer for Virgil.”

Synopsis op testimony op Mrs. Allie Jacobsen:

“My name is Mrs. Allie Jacobsen. I went to see Mr. Hensler at his house and had a conversation with him about the trouble that Virgil was in. This was after Virgil was arrested and before they sentenced him to the Pen. Mr. Hensler told me that we did not need a lawyer for Virgil; that he had already made a confession to him about the robbery, but that he knew that Virgil was not a bad boy and that he would help him out of his trouble; that he would do all in his power for him; that it was all in his hands and that he would go to the judge. I am an aunt of Virgil Dale.

“I later had a conversation with Mr. Hensler at his office and he repeated about the same thing to me at his office that he had said to me at his house, and assured me that he would help Virgil out of the trouble, at the same ■time I talked with him.at his office. I asked him again if we would need a lawyer for Virgil and Mr. Hensler said no, it was not necessary, it was all in his hands. This is the statement that he made to me and I thought he was telling me the truth about it.”

Synopsis op tes9imony op John Grothe:

“My name is John Grothe. I am Sheriff of St. Charles County. On the night of February 21st I arrested Virgil Dale, in a saloon and searched him and then took him outside and had Frank Bull come and see if he could identify him. Mr. Bull said it looks like the two boys, but he was not sure; then I took him over and locked him up in jail. After a short time Mr. Hensle¡ came over to the jail and we took Dale out into a room and began to question him and he denied the charge of robbery. We then brought out Alvin Meyer and questioned him and he made a statement, and we then again brought out Virgil Dale, and told him that Meyer had told us all about holding up Bull, and that he might as well tell the truth about it. Then Dale said to me, ‘If 1 tell you about it can I go home to-night, or can I get out on bond, and if I tell you will I be paroled?’ I.told him I could not parole Mm, that was for the eourt to say; that it was too late for him to get out on bond that, night. I told Dale I was his friend, but-1 did not tell him that if he would confess he would be paroled. I told him that I was his friend and was still his friend and would help him if I could. ”

Synopsis op testimony op Osmund Hensler:

“My name is Osmund Hensler.' I am Prosecuting ■Attorney for St. Charles County. On the night of the 21st of February, 1919, I came from St. Louis and went over to the jail and had a conversation with Virgil Dale and questioned him regarding having robbed Frank Bull, on that night, of $7. Dale denied the robbery and said that he did not know anything about it. After talking with him for some time Grothe, the sheriff here, brought out Alvin Meyer and questioned him and he made a statement to us that they had robbed Frank Bull. We again brought Dale out and told him that he might as well tell what lie knew about the robbery, as Meyer had told us all about it and had made a confession. Then Dale put his head on the table and asked me, ‘Will I get out?’ Grothe told him it was too late to get out that night. I did not say to Dale that if he would make a confession that he would be paroled by the court. I told Mm that I was his friend and that I would help him. I do not remember just all that was said there that night.

“I had a talk with John Dale in my office on' the morning of the 18th of March. I told him that I would see the judge and see what could be done about the case, but I did not tell Virgil that if - he would sign a confession he would be paroled. I don’t remember all that was said there that Mght in the jail when we talked to Virgil. I did say to him that I was his friend.

, “I had a conversation with Allie Jacobsen, at my house, a few days before Virgil’s case came up and told her that I would do all that I could for the boy. I did tell her that I knew that he was a good boy, and had never been in any trouble before that I had ever heard of, but I did not tell her that I would have him paroled;

“I talked with John Dale, the hoy’s father, three or four times about the case, and I did tell him that I was in sympathy with him and I told the boy’s father that I would do all I could for Virgil. ’ ’

After carefully reviewing the foregoing testimony offered upon the hearing of the motion for a new trial we are of the opinion that defendant at the time of entering a plea of guilty was laboring under a misapprehension as to his rights and that he had been misled by the conversations which he had had with the prosecuting attorney; We do not mean by this that the evidence shows that the prosecuting attorney wilftilly misled the defendant, but what we do mean to say is that we think the evidence, tends strongly to show that the defendant was in fact misled by what occurred.

It is immaterial whether the misleading was intentionally or unintentionally done. The material inquiry is: Was the defendant misled or under a misapprehension at the time he entered his plea of guilty?

While it may be true as stated by the prosecuting attorney that he did not in so many words tell defendant, that if he would make a confession he would be paroled, yet we think the statements made by the prosecutor to the defendant were such as did cause him to believe that he would be paroled if he entered a plea of gnilty.

Under such circumstances the judgment should not be permitted to stand. The rule to be here applied is fully discussed in the early case of State v. Stephens, 71 Mo. 535. In that case the court in reversing and remanding a judgment of the trial court in refusing to grant a new trial on the ground that the defendant had been misled into entering a plea of guilty said:

. “Viewing the matter, then, in either light, we fea constrained to say that it would better have comported with the proper exercise of a sound judicial discretion had the special judge permitted the withdrawal of the plea of guilty and the entry in its stead of the usual plea. The law is not composed of a series of snares and pitfalls for the -unwary, neither does it favor what Judge Bliss terms snap judgments. . . . Courts have always been accustomed to exercise a great degree of care in receiving-pleas of guilty in prosecutions for felonies to see that the prisoner had not made his plea by being misled, or under misapprehension or the like.”

The judgment is reversed and the cause is remanded.

All concur.


author: WALKER, C. J.

text:
    JOHN O’BRIEN BOILER WORKS COMPANY, Appellant, v. THIRD NATIONAL BANK OF ST. LOUIS and BOARD OF MANAGERS OF STATE HOSPITAL NO. ONE AT FULTON.
    Division Two,
    June 4, 1920.
    APPELLATE •JURISDICTION: State Hospital. A° Party A state hospital is in no sense a political subdivision of the State, nor is its board of managers state officers: therefore, the Supr-eme Court has no jurisdiction of a case in which the sole question is whether the board of managers of a state hospital or a manufacturing company is the owner of a check for $2800 held by a bank.
    Appeal from St. Louis City Circuit Court. — Hon. Wilson A. Taylor, Judge.
    Transferred to St. Louts Court of Appeals.

      Leahy, Saunders & Barth for appellant.

      Invin S Haley for respondents.
   WALKER, C. J.

The plaintiff brought suit in the Circuit Court of the City of St. Louis against the defendant the' Third National Bank of that city, to require the bank to deliver to plaintiff a cashier’s check for $2800, and for an injunction to prevent any other disposition of the check during the pendency of this action.

The Board of Managers of the State Hospital No. 1 at Fulton moved that it be permitted to intervene as a party defendant and to assert its ownership of the check. The motion was granted. The bank filed an answer disclaiming any ownership in the check, alleging that it was a stake-holder without pay and declaring its willingness to deposit the check in the registry of the court and abide any order or judgment of same. An order was made sustaining the prayer of this answer, and the check was impounded by the clerk of the trial court pending the determination of the case. The answer of the board of managers set forth its claim of ownership, on grounds not necessary to be stated here, on account of our view as to the proper disposition of this case, and that it was entitled to a judgment for the possession of said check. The trial court so found and an appeal was granted to the St. Louis Court of Appeals on the application of the plaintiff. Upon the appeal being perfected the latter court, on the 17th of July, 1917, made and entered of record an order transferring the case to this court for review and final determination, on the ground that the cause was not within the jurisdiction of said Court of Appeals.

The original jurisdiction of the Supreme Court as defined by the Constitution (Sec. 12, Art. VI, Const. Mo.) is limited to cases where the amount in. dispute, exclusive of costs,, exceeds, the sum of $7500 (Sec. 3937, R. S. 1909, as amended, Laws 1911, p. 190); to cases involving the construction of the Constitution of the United States or of this State; to cases where the validity of a treaty or a statute of or authority exercised under the United States is drawn in question; to cases involving the construction of the revenue laws of this State, or the title to any office under this State; to cases involving title to real estate; to cases where a county or other political subdivision of the State or any officer is a party, and in all cases of felony.

This section must, under a reasonable construction of its terms, furnish the measure of this court’s jurisdiction; the greater portion of it, being clearly inapplicable under the facts, may be dismissed from consideration without comment. ' It cannot be said with any degree of reason that a state hospital is in any sense a political subdivision of the State, nor that its managers are state officers. They are appointive, administrative officials clotted with, such limited power, both as to its nature and extent, as is defined'under Article VI, Chap. 19, Revised Statutes 1909, Moreover, they did not seek and were not granted leave to intervene as individuals, but in their quasi-corporate capacity as a board. Thus appearing, a review of the claim made involves no jurisdiction of this court.

The sole question involved is, who is entitled to the cheek? The Court of Appeals is clothed with ample power to determine whether or not the finding of the trial court in this regard was correct. The case should, therefore, be transferred to that tribunal for its final determination. It is so ordered.

All concur.


author: ; WHITE, ,C.y

text:
    THE STATE v. DAVID M. SEAY, Appellant.
    Division Two,
    June 4, 1920.
    1. DIFFERENT OFFENSES: Election. The right to compel the State to elect upon which particular offense, among the several stated by the prosecuting attorney in his opening statement to have been committed by defendant, the state will expect a conviction, is largely within the discretion of the trial court; but the election should be made as soon as the facts are sufficiently developed to warrant it. So where the prosecuting attorney in his opening statement related substantially what the evidence would be in reference to different acts of carnal knowledge committed by defendant on the thirteen-year-old girl between June and December, the court did not commit prejudicial error by overruling defendant’s motion, made on the close of the statement, to require the State to elect- upon which of the particular distinct offenses it would expect a conviction; but a compelled election made at the close of the State’s case, whereupon the State elected , to demand a conviction for the offense committed in December, was made within proper time.
    2. REPUTATION: Cross-Examination: Assumption, of Facts. Where defendant’s character witnesses were offered for the purpose of showing his reputation before the aleged crime of carnal knowledge with a thirteen-year-old girl was committed, it is error to permit the prosecuting attorney to ask them, if defendant was charged at that time with the crime of rape upon a nine-year-old girl, or if they had heard that he was charged with committing rape on a girl eight years of age, or if they had heard prior to the offense charged that defendant was charged by eight or nine little girls with having sexual intercourse with them, would they say his reputation was good. The questions assumed that the prosecuting attorney possessed knowledge that defendant had committed other distinct abominable crimes, and was in effect a statement that he believed defendant to be guilty, not only, of all of them, but of the crime of which he was being tried, and it is never proper for the prosecuting attorney to state to the jury his belief that the defendant is guilty, or to tell them he had committed other crimes.
    3. CARNAL KNOWLEDGE: Attitude of Court. The crime of statutory rape upon a girl under fifteen years of age is so abhorrent that conviction is easy and the prejudice against a defendant in such a case is so strong that the court must take every precaution to see that he obtains an impartial trial.
    Appeal from Jackson Criminal Court. — Hon. Ralph 8. Latshaiv, Judge.
    Reversed and remanded.

      J. M. Johnson and Henry L. Warren for appellant.
    (1) The court erred in not sustaining the defendant ’§ demurrer offered at the close of the State’s case. State v. Tevis, 234 Mo. 276;- State v. Goodale, 210 Mo. 275; State v. Hughes, 167 S. W. 527. (2) The court erred in not sustaining the defendant’s motion filed at the opening of the case, to require the State to elect on which act it would stand. State v. Palmberg, 199 Mo. 233. (3.) The court, erred in admitting testimony of the subsequent acts of intercourse. State v. Palmberg, 199 Mo. 233. (4) The court erred in permitting questions to be asked and testimony given which assumed defendant had raped many other young girls. State v. Davis, 190 S. W. 298; State v. Wilson, 117 Mo. 570.

      Frank W. McAllister, Attorney-General, and J. W. Brdaddus, Assistant Attorney-General, for respondent.

      (1) The court did not err in refusing to sustain defendant’s demurrer at the close of the State’s case and at the close of all the evidence, (a) Defendant having offered testimony in his own behalf waived his demurrer at the close of the State’s case. State v. Mann, 217 S. W. 69. (b) Where there is any substantial evidence' to sustain the verdict, this court will not interfere, as the weight of the evidence is for the jury. State v. Underwood, 263 Mo. 665; State v. Concelia, 250 Mo. 412; State v. Reed, 237 Mo. 231; State v. Conley, 217 S. W. 29. (c) There was substantial evidence tending to show defendant’s guilt. State v. Manual, 263 Mo. 670; State v. Swain, 239 Mo. 723. (2) The court did not- err in refusing to sustain defendant’s motion offered at the close of the opening statement to require the State to elect on what act it would stand, as the time of election rests largely in the discretion of the trial court. State v. Hughes, 258 Mo. 270; State v. McKinney, 254 Mo. 698; State v. Miller, 263 Mo. 334; State v. Hurley, 242 Mó. 459; State.y. Pruitt, 202-Mo. 51. (3) As it was within the trial court’s discretion to refuse to compel the State to--elect on which act it would stand until the close of its case, the admission of the act as testified to by the witness, Virginia Turner, before said election was not error. State v. Hurley, 242 Mó.: 459. (4) It is proper for the State to ask defendant’s character witnesses on cross-examination if they had- not heard of defendant committing similar assaults upon other girls. State v. Smith, 250 Mo. 277; State v. Hutchinson, 186 S. W. 1001; State v. Beckner, 194 Mo. 298';" State" v. Wertz, 191 Mo. 579; State v. Parker;.-172 Mo. 206;' .'Underhill- on" Criminal Evidence, sec.' 82..
   ; WHITE, ,C.y

The defendant appeals from .a conviction in the. Circuit Court of Jackson County, on-a charge of statutory rape, committed upon one Lucy Hare, a female, child under the age of -fifteen.-years.

Seay was' fifty-nine'- years of - age, . a bachelor, and conducted a card-printing shop at No. 1120 Tfoost Ave-line, Kansas City. The shop was on the ground floor and contained two rooms — one in front where he transacted business, and one in the rear where he slept, and where, the State’s evidence went to show, he maintained a cot on which the alleged offense was committed.

Lucy Hare was thirteen years of age and attended the Humboldt School. She, with other girls who attended that school, were frequenters of the defendant’s shop. She was in the shop a number of times during á period extending from June, 1918, until December of that year. It was on one of these visits in June that the first criminal act was committed by the defendant against Lucy Hare. This recurred at intervals when she would visit the shop in company with another girl, named Virginia Turner. The last act of the kind described occurred about a week before Christmas in December, 1918. The incident is described by the prosecuting witness and by Virginia Turner who was present all the time.

The defendants' endeavored to show that the arrangement of the shop was such that he could not have committed the offense in the manner detailed, by describing the interior of the back room of his shop. This evidence, however, was contradicted by the testimony of the State’s witnesses who described the place as containing two bunks, one about seven feet above the floor, where he slept, and the other lower down, composed of boxes over which a quilt or something was spread.

^Evidence I. The attorney for the defendant demurred to the evidence at the close of the State’s evidence, and again at the close of all the evidence. It is claimed that the court erred in overruling these demurrers. In regard to the facts relating to the particular offense for which the State seeks' a conviction the evidence °t the prosecuting witness and of Virginia Turner was quite clear and entirely sufficient to submit the issue to the jury. The defendant, on cross-examination of the prosecuting witness, had her state that she suffered no pain at the time. This was offset by tbe testimony of a physician, who examined the girl on the order of the court, and testified that she was a well developed girl for her age of thirteen years and that the hymen was broken at a much earlier period, not recently. The court properly overruled the demurrer to the evidence.

ee ion. II. The prosecuting attorney, in his opening statement, related substantially what the evidence would be in relation to the different criminal • acts committed by the defendant upon the prosecuting witness and defendant’s counsel then asked the court to have the State elect upon which particular offense the State would expect a conviction, since each distinct act was a separate crime. The court overruled' the motion, but at the close of the State’s case did require the State to elect. The prosecutor thereupon elected to demand a conviction for the offense committed about a week before Christmas in December, 1918. The rule in regard to requiring an election in such case is largely within the discretion of the trial court. It should be made as soon as the facts are sufficiently developed to warrant it. [State v. Hughes, 258 Mo. 264, l. c. 270; State v. Hurley, 242 Mo. l. c. 459; State v. Miller, 263 Mo. l. c. 334.] The election in this case was made within the proper time.

III. The defendant denied specifically and generally all the criminal acts charged against him and introduced a number of witnesses, who from the evidence-appeared to be reputable citizens, to testify that he had a good reputation. It appears from intimations in the record that some time in February, 1919, the defendant was apprehended, and was then suspected of committing sundry crimes of the character charged against him in this case, against numerous girls, including the prosecuting witness. When the defendant’s character witnesses were on the stand testifying to his good character the prosecuting attorney proceeded to cross-examine them, in this manner:

“Q. (By Mr. Curtin) : If you liad heard that this defendant was charged with the crime of rape upon a nine-year-old girl by the name of Mildred Roberts would you then say his reputation was good?”

Objection to this question was overruled and exception saved.

“The .Court: Answer the question, doctor.

“Read the question.

“(Last question asked by Mr. Curtin read to witness by the reporter).

“A. It is very difficult to answer that question. If it charged that? I would say that the charge is very bad for him.

“Q. (By Mr.'Curtin) : Very bad for him? A. Yes, sir.”

The prosecutor then asked this question:

“Q. (By Mr. Curtin) : If you had heard that'this defendant was charged with committing rape on a girl eight years of age by the name of Alice Parrish, would you say that his reputation was' good?”

Objection to this was overruled and the witness answered:

“A. I would say it is a very unfortunate charge.”

A number of questions of that character were asked of several witnesses and answered over the objection and exception of the defendant, and of one witness the prosecutor asked this question:

“Q. Now, Mr. Fratcher, had you heard prior to the 27th day of February, 1919, this man was charged by eight or nine little girls of having had sexual intercourse with them, would you still say that his reputation for morality was good ? ”

Objection to which was overruled and exception saved.

When a defendant on trial charged with a crime introduces a witness to prove good character it is proper for the State to cross-examine such character witnesses for the purpose of testing ■ their knowledge of the defendant’s .reputation, the sources of their information, and their credibility. Such cross-examination is largely within the discretion of the trial court. [State v. Phillips, 233 Mo. l. c. 305; State v. Harris, 209 Mo. l. c. 443.] It is permissible to inquire of the character witnesses whether they have heard such and such, rumors relating to the defendant; rumors of crimes or other acts which would reflect upon his character in order to determine upon what the witness bases his judgment as to the reputation of the defendant. [State v. Brown, 181 Mo. l. c. 213-14.] Such questions are improper unless such rumors are afloat to affect defendant’s reputation. [State v. Parker, 172 Mo. 191, l. c. 207.] The opinion in the Parker case quotes from Greenleaf, as follows: “In testing a witness who speaks to good character, it would expose the untrustworthiness of his testimony if he admits that rumors of misconduct are known to him; for the knowledge of such rumors may well be inconsistent with his assertion that the person’s reputation is good.” [State v. Smith, 250 Mo. l. c. 277; State v. McLaughlin, 149 Mo. l. c. 33.] A leading and well considered case upon this subject is State v. Crow, 107 Mo. 341, l. c. 34-6-348.

. Rumors affecting one’s reputation is quite a' different thing from proof of specific acts or crimes for which the defendant might be convicted. In this case the character witnesses were offered for the purpose of showing the defendant’s reputation before he was charged with the crime for which he was on trial. The questions asked by the prosecuting attorney did not go to contradict any statement as to what his reputation was then. He didn’t ask the witness if rumors were current, which they had heard concerning defendant’s misconduct, because it appears there were no such rumors at the time. The questions were entirely argumentative, and called for opinions and conclusions. The witnesses could not have heard of the offenses named at the time to which the inquiry is directed and the prosecutor knew it. Under the pretext of testing the credibility and information of the witnesses he sought to bring before the jury the facts that the defendant had committed a number of very serious and abominable crimes, for any one of which he could be convicted; crimes totally disconnected with the crime for which he was on trial. The question not only avoided any reference to the defendant’s reputation as it was, but demanded an opinion of the witnesses on their assumed knowledge of facts instead of reported crimes. This sort of cross-examination has been universally condemned. The prosecutor overstepped his privilege. [State v. Teeter, 239 Mo. 475, l. c. 485; State v. Wellman, 253 Mo. l. c. 315; State v. Phillips, 233 Mo. l. c. 305.] It is not proper for the prosecuting attorney to state to the jury his belief' in the guilt of the defendant, for the reason that the jury may conclude that his belief was acquired through information not in the evidence. [State v. Hess, 240 Mo. l. c. 159; State v. Webb, 254 Mo. l. c, 435; State v. Reppley, 213 S. W. l. c. 480.] It is equally improper for him to tell the jury that the defendant has committed other crimes; and that he was allowed to do in asking the questions set out above.

A crime of the character of the one with which defendant is charged is so abhorrent that conviction is easy; in fact,- the charge is almost equivalent to a conviction. So strong is the prejudice against a defendant in such case that the court must take every precaution to see that he obtains an impartial trial.

For the error committed by the trial court in allowing the cross-examination of defendant’s character witnesses the judgment is reversed and the cause remanded.

Railey and Mozley, GG., concur.

PER CURIAM: — The foregoing opinion by White, C., is adopted as the opinion of the court.

All of the judges concur.


author: WILLIAMS, P. J.

text:
    THE STATE v. AERIAL HARTMAN, an Infant, et al.; LUELLA HARTMAN, Grandmother, Appellant.
    Division Two,
    June 4, 1920.
    1. ..APPELLATE JURISDICTION": Constitutional Question: Paith and ■ Credit Clause. Constitutional questions, in order to confer jurisdiction on the Supreme Court, must he both timely and properly ■ raised • and preserved for review. The action of the trial court in determining the faith and credit due to the public acts, records and judicial proceedings of a court of another state, as well as . a motion to dismiss filed in the trial court, are matters of exception, and can be preserved for review in an appellate court only # by a bill of exceptions; and if the record fails to show that a bill was filed, or if filed it is not contained in the record presented, the Supreme Court does not have jurisdiction on the ground that such matters involve a constitutional question.
    2. -: Special Appeal: Transfer to Court of Appeals. A case in which a special appeal has been granted by one of the judges of the Supreme Court cannot, upon its becoming apparent that the Supreme Court has no appellate jurisdiction, be transferred to a court of appeals, but must be dismissed. Section 3938, Revised Statutes 1909, does not apply to such a case, but is limited in its meaning to appeals granted by the trial court.
    Special appeal from Juvenile Division, Jackson Circuit Court. — Hon. Allen C. Southern, Judge.
    Dismissed.

      Frans E. Lindquist for appellant.
    (1) The findings and judgment are contrary to and in violation of Section 1 of Article 4 of the Constitution of the United States in that it fails to give full faith and credit to the public acts, records, and judicial proceedings of the State of Kansas, and the court erred in overruling said motion to dismiss. Marin v. Augedahi, 247 U. S. 142; Tootle v. Buckingham, 190 Mo. 183. (2) The findings and judgment are contrary to and in violation of Article 6 of the Constitution of the United States, and Section 905 of the Revised Statutes of the United States, being the supreme law of the land, in that the judge of said Juvenile Court refused to he hound thereby, anything in the Constitution or laws of the State of Missouri to the contrary notwithstanding. Marin v. Augedahl, 247 U. S. 142;. Tootle v. Buckingham, 190 Mo. 183. (3) The said findings and judgment insofar as they apply to said Luella Hartman, are coram non judice and void. Reynolds v. Stockton, 140 U. S. 265; State ex rel. v. Muench, 217 Mo. 124. (4) The findings and judgment cannot exceed the allegations of the petition. Reynolds v. Stockton, 140 U.- S. 265; State ex rel. v. Muench, 217 Mo. 124.

      Frank W. McAllister, Attorney-General and Henry B. Hunt, Assistant Attorney-General, for respondent.
    (1) The motion to quash and dismiss the proceedings in this cause being a matter of exception, should have been embodied in a bill of exceptions. No bill of exceptions has been filed in this cause. Stark v. Zehnder, 203 Mo. 449; State v. Coleman, 199 Mo. 118; State v. Finley, 234 Mo. 603; State v. Humfeld, 253 Mo. 340. (a) Only the record proper is before the court. State v. Long, 214 Mo. 325; State v. Foley, 214 Mo. 309. (b) As the appeal in a criminal case must be perfected as required by civil statute, the above citations on criminal cases are applicable. State v. Connors, 258 Mo. 333. (2) No constitutional question is raised by the record filed in this case. Mo. Cons. sec. 12, art. 6; Sec. 5 of Amendment 1884. (a) The circuit court.has no jurisdiction of a cause on the ground that it involves the construction of the Constitution of the United States, unless the record as it existed when the case was appealed shows that the constitutional Bennett v. Railway, 105 Mo. 644; State ex rel. v. Smith, question was fairly and directly raised in the trial court. 176 Mo. 48; Miller v. Connor, 250 Mo. 684; Hardwicke v. Wurmser, 264 Mo. 141; Littlefield v. Littlefield, 272 Mo. 165; Shewalter v. Railway, 152 Mo. 5'51; Louisiana v. Lang, 251 Mo. 665. (a) Constitutional questions must not only be timely and properly raised, but, to confer jurisdiction on this court,- they must be preserved for review. Louisiana v. Lang, 2'51 Mo. 666. (3) As-this record does not disclose any constitutional question raised in the trial court, this cause should be transferred to the Kansas City Court of Appeals, or be dismissed. Sec. 2038, R. S. 1909; Mo. Cons. sec. 12, art, 6; Sec. 5, Amendment 1884; Sec. 3938, R. S. 1909; Ex parte Web-' bers, 205 S. W. 623.
   WILLIAMS, P. J.

This is an appeal from the judgment of the Juvenile Division of the Circuit Court of Jackson County. 0

A special appeal in this case was granted by one of the judges of this court on May 29, 1919, acting under the authority conferred by Section 2043, Revised Statutes 1909. Said statute, among other things, provides as follows: “Any judge of the Supreme Court or either of the courts of appeals, respectively, in cases appealable to said courts, upon inspection of a copy of the record, may grant an appeal by special order for that purpose at any time within one year next after the rendition of the final judgment or decision in the cause,” etc.

From appellant’s abstract of the record it appears that this is a suit under the Juvenile Court Act (Laws 1911, p. 177 et seq.), and was originally instituted in the Juvenile Division of the’Circuit Court of Jackson County by the filing therein of a petition which in substance alleged that. Aerial Hartman was a neglected-child under the.age of seventeen years, etc., and that she was suffering from the cruelty and depravity of her father.

A hearing’was had upon this petition, at which hearing,the father, and also the grandmother (the present appellant), .appeared in the cause in person and by attorney.

. After a hearing.duly had the court entered a judginent; this, judgment iu substance recites that the court finds that said Aerial Hartman is a neglected child within the meaning of the statutes of the State and that the said father and grandmother are not proper persons to have the custody of said child; the child is made a ward of the Juvenile Court of Jackson County; the court further finds that one Gothard E. Henry and his wife are fit and proper persons to have custody of said child for the present; and remands said child to their custody until the further order of the court.

Questionti0nal I. It was undoubtedly the theory of the learned (now departed) Brother who granted this appeal, that a constitutional question was involved which would confer jurisdiction of this appeal upon this court. But an examination of the record now presented for our review fails to present such a question or in fact any question which would confer jurisdiction upon this court.

Appellant in her brief alleges that the court violated Section 1 of Article IY of the Constitution of the ITnitY States in that the court failed to give full faith and credit to the public acts, records and judicial proceedings of the State of Kansas.

It does not appear that a bill of exceptions was ever made out or filed in the case. There is no bill of exceptions contained in the record before us. The action Y the trial court in determining the faith and credit due the alleged proceedings of a court of another state, as Yell as the motion to dismiss filed in the trial court, were matters of exception and could only be preserved for our review by being properly preserved in a bill of exceptions. So far as the present record discloses this was not done. It therefore follows that the constitutional question now urged in the brief has not been preserved in such a manner as will confer jurisdiction of this appeal upon this court. Constitutional questions must not only be timeLr and properly raised, but, to confer jurisdiction on this court, thev must be preserved for review.” [Louisiana v. Lang, 251 Mo. 664, l. c. 666.]

II. It is suggested by the learned Attorney-General that this cause should be transferred to the Kansas City Court of Appeals under the provisions of Section 3938, Revised Statutes 1909, which provides that, “in the event of any case being sent from a lower Court on Appeal or writ of error to the wrong Court of Appeals or the Supreme Court, it shall be the duty of the court to which the case has thus been sent, immediately on such fact coming to its attention, to direct its clerk to forward the transcript therein, with the order of transfer, to the clerk of the proper court of appeals,” etc.

After carefully .considering the language of the above statute we are of the opinion that the word appeal as therein used should be limited in its meaning to an appeal granted by the trial court, and that it does not include special appeals granted by appellate judges under Section 2043, Revised Statutes 1909.

We think Section 2043, supra, when properly construed, means that the special appeal therein mentiou' can be granted only by some judere of the court to which the case is applicable, and that under that-statute a judge of one appellate court would have no power or authority to grant a special appeal to some appellate court of which he was not a member. If that be the correct construction (and we think it is), then the Kansas City Courl of Appeals has acciuired no right to review this case upon the special appeal granted by one of the judges of tliis court.

That being true the transfer statute (Sec. 3938, supra) can have no application.

It would therefore appear that upon the present record no appellate court has jurisdiction to review this case upon the special appeal heretofore granted. Such being the case it follows that the special appeal heretofore granted herein should be dismissed.

It is so ordered.

All concur.