text:
    THE STATE v. RICHARD NEWCOMB, Appellant.
    Division Two,
    May 18, 1909.
    1. EVIDENCE: Hearsay: Co-conspirator. The testimony of witnesses for the State, detailing the statements and conversations of the mother of defendant, charged with rape upon a little girl, made out of the presence of defendant, is competent on no theory. There being nothing in the case tending to show that she was a party to the child's undoing, or even knew of it until long after it was done, she was not a co-conspirator, and what she said or did after that is not competent against defendant.
    2. -: -: -: Activity on Part of Mother. Activity on the part of defendant’s mother to see the wrong done the girl investigated and the guilty party punished, if used by the prosecution to indicate a purpose on her part to sfnother the prosecution, when, if rightly understood, it was intended for the opposite effect, is prejudicial to a defendant who was not present and in no manner chargeable therewith, and should not go to the jury.
    3. -: Physical Examination of Defendant: What Physician Said. The physician, who physically examined the defendant during the preliminary hearing in obedience to the order of a justice of the peace, cannot detail what he said to the defendant during said examination.

      4. -: What Prosecutrix Said Long After Crime: Threats As Excuse For.Changing Testimony. The prosecutrix persistently stated that her own father and not defendant was the one who violated her person, and after the father was given a preliminary hearing and was bound over and she had so testified, and had returned from defendant’s abode to the custody of an aunt, she for a week persisted repeatedly in the same story, but then, yielding to the importunities of an officious partisan of her father, who confided to the aunt that if . prosecutrix persisted in accusing her father of the crime and “if something was not done she was going to break her father’s neck,” she changed her story and stated defendant, and not her ' father, was the guilty party, and this officious witness testified that she had stated to him that defendant’s mother had made her accuse her father. Held, to be inadmissible, though elicited on cross-examination. It was competent to show the circumstances and inducements held out to the little girl to get her to change her sworn testimony, but it was clearly incompetent to permit the officious witness to detail what prosecutrix said in regard to defendant’s mother making her accuse her father by threats, etc. It was no part of the res gestae; it was rank hearsay, highly prejudicial, and the guise of cross-examination did not justify it.
    5. -: Physical Examination: Compelled to Testify. The defendant, charged with rape upon a little girl, while in custody and charged with the offense of which he was convicted and when he was without counsel, was ordered by the justice of the peace, upon the demand of the prosecuting attorney, to submit to a physical examination of his privates, in order that it might be determined whether or not he was afflicted with the loathsome disease which it was claimed the little girl had. He was taken into a room in the court house and in the presence of the sheriff was examined by the physician, both of whom testified as to what they saw and what they said to him. Held, the testimony was incompetent and inadmissible, as violative of defendant’s constitutional right not to be compelled to testify against himself; and under the circumstances defendant did not voluntarily submit to this violation of his person.
    6. -: Too Remote: Venereal Disease. Testimony of a physician, in a rape case, to the effect that prosecutrix’s father, whom she first accused of violating her person, had about four months prior to the offense been afflicted with a venereal disease but had recovered therefrom, was too remote, especially in view of the fact that two other witnesses testified that the father had admitted to them that he had been thus afflicted on the very day the crime is alleged to have been committed.
    7. INSTRUCTION: Defendant as Witness: “May Take.” It is preferable to tell the jury that they “may take” into consideration the fact that defendant is testifying in his own behalf, or his wife in her husband’s behalf, rather than “will take,” etc.
    S. REMARKS OF ATTORNEY: Defendant as Witness. The prosecuting attorney has no right to state to the jury that defendant, when he took the witness stand, did not deny what another witness had testified.
    Appeal from Pemiscot Circuit Court. — Row. Henry C. Riley, Judge.
    Reversed and remanded,

      Faris £ Oliver for appellant.
    (1) (a) It was an error for the trial court to permit practically all of the witnesses for the State to detail to the jury conversations and statements of Mrs. S. A. Newcomb, made by her out of the hearing and not in the presence of defendant. Not alone were her statements and conversations thus made, permitted by the court to be shown, but her acts, her demeanor and her emotions, also. The record overflows with things Mrs. Newcomb said and did and looked and acted. In law such things are said to be res inter alios, and not admissible. In actual practice and experience and in plain language, they are prejudicial outrages perpetrated against the right of an accused to a fair and impartial trial. State v. Knock, 142 Mo. 515; State v. Jaeger, 66 Mo. 180; State v. Patrick, 107-Mo. 152; State v. Meysenberg, 171 Mo. 59; State v. Huff, 161 Mo. 488. The State throughout this trial strenuously, by insinuation and innuendo, but not openly, nor by any testimony whatever, endeavored to make of Mrs. Newcomb a co-conspirator after the fact. State v. Rothschild, 68 Mo. 52; State v. Foley, 130 Mo. 488; State v. Patrick, 107 Mo. 152; State v. Hathom, 166 Mo. 229; State v. Levy, 168 Mo. 521. (b) The physician’s conversation wasi certainly incompetent, whatever may be said of his examination and deduction therefrom. State v. Foley, 144 Mo. 600; State v. Kelleher, 201 Mo. 636; State v. Swisher, 186 Mo. 11; State v. Hale, 156 Mo. 108; State v. Young, 991 Mo. 666. (c) It was error to permit Jenkins to testify as to conversations had with the prosecutrix and to1 relate parts of such conversations, the same having occurred more than a month subsequent to the time of the alleged rape. 3 Greenleaf, Evidence, 213; State v. Jones, 61 Mo-. 235; State v. Bateman, 198 Mo. 222. (2) The defendant, while he was in custody charged with this offense, when he was without counsel, was ordered by the examining magistrate, at the request of the prosecuting attorney, to undergo a physical examination of his person. This examination was made by the sheriff of the county and by the witness, Dr. Crowe, both of whom afterwards appeared at the trial and testified as to the examination, a.s to what they saw and as to what they said to the defendant, while they had him off by himself examining him. This was error. State v. Haight, 117 Iowa 650; 10 Ency. Ev., 595. The case of State v. Haight, supra, will be found to be a case, in almost every respect, on all fours with the case at bar, except that in the case at bar nothing seems to have been said by defendant either pro or con.

      Herbert S. Hadley, Attorney-General, for the State; James T. Blair of counsel.
    (1) The statements of Dr. Crowe, in defendant’s presence, were properly admitted. There is no showing in the record that defendant was in custody at the time. McCants was then under arrest. The authorities cited are not in point. (2) There was no exception saved to the testimony of Jenkins as to the conversation with Frances McCants, of which defendant now complains. Besides defendant had called for the “changed story” by inquiring about it in chief. (3) The testimony of Dr. Swearingen was not prejudicial, and the instruction excluding it was properly refused. (4) The rulings as to misconduct of the prosecuting attorney in his argument are not here for review. Mere recitation in an' objection that certain language was used by the prosecuting attorney does not preserve it for action by this court.
   GANTT, P. J.

This is an appeal from the circuit court of Pemiscot county. Defendant was charged, by an indictment found by the grand jury of said county, with having, on the---day of December, 1907, committed upon one Frances McCants, a female child under the age of fourteen years, the crime of rape.

This indictment was filed on the 2nd day of March, 1907. Defendant was tried at the November term, 1907, and a mistrial resulted. He was again put upon trial at the February term, 1908. The latter trial resulted in a verdict of guilty, and the assessment against him of the penalty of imprisonment in the penitentiary for a term of thirty years. From this verdict and the resulting judgment and sentence thereon, the defendant, after his motions for a new trial and in arrest were overruled, took and now prosecutes this appeal. The facts are substantially as follows:

Defendant, with his mother and one William Rush-ton, were at all the times mentioned, engaged in a small mercantile business and in operating a restaurant upon the Main street in Caruthersville. All of these persons, with the prosecuting witness and one Lucy Logs ton, occupied as a sleeping apartment a room in the rear of this little store.

The prosecuting witness at the time of the perpetration of the alleged rape was under the age of consent, being of about the age of ten or eleven years. She was well grown for her age, and, as her testimony abundantly indicates, was, her condition in life and environment considered, of rather unusual intelligence. She had been left by her father with defendant and defendant’s wife and mother, in order that she might attend school in town. Prosecutrix had been thus living with defendant and attending school for about one year at the time of the commission of the alleged rape.

On the night of December 1, 1906, the father of the prosecutrix, one Frank McCants, was in town, and about 9 o’clock in the evening came to the place of business of the defendant and slept there all night. McCants was at this time somewhat intoxicated, or, as one witness put it, “he had a dram.”

On this occasion McCants slept with his daughter, the prosecuting witness. On the 10th day of December following, the prosecuting witness was observed by Mrs. S. A. Newcomb, mother of the defendant, and a witness upon the trial for the defendant, to be suffering from some physical difficulty which produced in the gait of prosecutrix, when walking, a perceptible limp as if she were crippled. At this time', and at the time of the occurrence of the conversation below recited, no one was present thereat, or in the room, so far as appears, or upon the premises, except the prosecutrix and defendant’s mother.

Upon observing the physical impairment of prosecutrix’s gait, Mrs. Newcomb asked her if there was not something the matter with her. She at first made strong denial, but upon being most urgently pressed by Mrs. Newcomb, finally admitted that she was sore, and that she had been getting sore, as she expressed it, ever since her father had slept with her. Mrs. Newcomb thereupon examined the prosecutrix and found the private parts of the latter in such condition, as to the mind of the witness, called for medical treatment. Mrs. Newcomb sent for a physician, Dr. Phipps, to whom she related prosecutrix’s condition and requested him to make an examination of her. This Dr. Phipps did, calling to his assistance, after a partial or cursory examination, another physician, Dr. Crowe. Both of these physicians testified upon the trial, and stated in their testimony that they found an enlargement, and an inflammation of the private parts of the prosecutrix, and that such inflammation was caused, in their opinion, from gonorrhea. Dr. Crowe was permitted to say that such enlargement was produced, in his opinion, by the commission upon the prosecutrix of a rape. No examination by means of a miscroscope was made, either of the prosecuting witness or of the defendant, or said Frank McCants, although every physician who testified admitted tha,t such examination and the finding of the specific bacillus of gonorrhea is the only absolute test. These physicians admitted, also, that there are other diseases of the parts which produce similar symptoms and yield to similar remedies. These physicians administered, or prescribed!, treatment of prosecutrix: as for gonorrhea, and she recovered in a few days, but they would not definitely say she had gonorrhea, except as a matter of opinion.

Upon the confession of the prosecutrix to Mrs. Newcomb that her condition was caused by her father, Frank McCants, a warrant was procured for McCants, complaint therefor being made and sworn to by said Rushton, the partner of defendant, and a witness for the State, and the latter’s mother.

Upon being arrested on this warrant on the 12th day of December, 1906, said McCants admitted to the sheriff who arrested him, and to the then prosecuting attorney that he (McCants) had had the gonorrhea about two weeks before his arrest but that he was at the time- of his arrest, well thereof.

Said McCants was given a preliminary hearing about the 21st day of December, 1906, upon the charge of having committed the rape in question upon the prosecutrix, his daughter. Upon a full hearing, he was bound over to await the filing of an information against him, without bail being allowed him.

Upon this trial his daughter, the prosecuting witness, was sworn and testified. In her testimony, given under oath, she charged her father alone with having violated her, and as being wholly responsible for her condition, and most bitterly denied that the defendant had ever at any time mistreated, wronged or violated her person in any wise.

Prior to prosecutrix being sworn as a witness against her father, and before die testified in the preliminary trial of him as aforesaid, she was taken privately into the office of the then prosecuting attorney, Mr. L. L. Collins (whose term was about expiring and who ten days afterwards became the attorney for her father), and there in the presence of the sheriff and prosecuting attorney only, was questioned1 for a considerable time. On this occasion both of these officers offered her protection; stated to her their ’official position, which she admits she knew, and asked, her to tell the truth. She throughout persisted in accusing her father and in averring the entire innocence of the defendant.

Shortly after the father of prosecutrix was committed to jail, upon this charge, she was taken from the custody of the mother of defendant and put in the charge of the sister of said McCants. This taking away of the prosecutrix occurred some few days after Christmas, 1906, or about four weeks after the alleged offense was committed.

After being committed to the care of her aunt, the prosecutrix was taken to Steele, a town some fifteen miles from Caruthersville. Here she persisted in accusing her father and denying the guilt of the defendant for about a week, or until the first days of January, 1907, although she was daily repeatedly pressed with interrogations by one J. R. Jenkins, an extremely officious friend and partisan of said McCants — and one, as he himself ingenuously admits, extremely unfriendly to defendant. Said Jenkins, having, as he expresses it, endeavored for several days to get the prosecutrix to tell the truth, and being in his own opinion, unable to prevail upon her to do so, finally spoke to the uncle and aunt of prosecutrix’s attitude, advising them of the persistence with which she clung to her story accusing her father, and confidently confided to them his opinion that “if something was not done she was going to break her daddy’s neck.” ■While not in evidence, except by inference, this cogent appeal seems to have borne fruit. For, subsequent to this communication and upon the fourth visit of Jenkins to the prosecutrix, and! the fourth extended effort of Jenkins to induce a change in her story, and a week after she had been put in her aunt’s custody, and some four weeks or more after the offense was committed, the prosecutrix for the first time stated that defendant, and not her father, had violated her.

Thereupon, at the February term following, the said Frank McCants was released1 from custody, a nolle prosequi being entered to the information which had been preferred against him by the prosecuting attorney, charging him with the crime. In March, 1907, the defendant was indicted for the offense and this prosecution followed.

Upon the trial of defendant it was shown that he had for a few nights in the latter days of November, 1906, slept with the prosecuting witness in the common sleeping apartment; that no reprehensible conduct on defendant’s part while thus sleeping, was shown, notwithstanding at least three other persons also occupied this room and slept within a foot or two of defendant.

Upon the trial of defendant a sharp, contradiction of fact arose in regard to facts below noticed, the prosecuting witness testifying that defendant, and not her father, had violated her, and that her former story accusing her father had been induced by threats made by Mrs. S. A. Newcomb, the mother of defendant. These facts the defendant and his mother denied. The State insisted, and the defendant denied, that the defendant had had, about the time cf the alleged rape, the disease of gonorrhea. The defense insisted and the State denied that said McCants had had the gonorrhea about the time of the alleged rape.

These contradictions, being interpolated and woven into the case above set out, either pro or con, will constitute a fair statement of the facts of the case.

The testimony in this case presents, such an exceptional state of facts that it'calls for the most serious consideration. It seems to us that no dispassionate, impartial mind can fail to have serious doubts as to the correctness of the verdict and conclusion reached in the circuit court, and hence it behooves us to scan closely the methods by which the verdict was obtained.

I. The first assignment of error is that the court erred in permitting the different witnesses for the State to detail at length conversations and statements of Mrs. Newcomb, the mother of the defendant, made out of the presence of the defendant; nor did it stop at this, but her acts, demeanor and emotions were brought before the jury. While in our opinion there was nothing in her conduct incompatible with a sincere desire to see the wrong done to the little girl thoroughly investigated and the guilty party punished, and nothing to indicate on her part a desire or purpose to smother a prosecution, it is evident that a contrary construction was sought to be placed upon her conduct and the defendant made to suffer therefrom.

The law is so well settled that the defendant cannot be bound by statements and acts of third parties made out of his presence that it needs no citation to establish it, but our own reports abound in decisions condemning the admission of such testimony. [State v. Jaeger, 66 Mo. l. c. 180; State v. Rothschild, 68 Mo. 52; State v. Patrick, 107 Mo. l. c. 152.]

Mrs. Newcomb was in no sense a co-conspirator. There was nothing in the evidence tending even re-' motely to establish that this lady was a party to the undoing of this child anld1 by all the rules of testimony what Mrs. Newcomb said or did after the consummation of the crime could not be competent against defendant. Neither was this a case of subornation of perjury or compounding a felouy or bribery of a witness. Indeed, fairly construed, the acts of Mrs. New-comb were just the contrary in every respect and such' only as an innocent, sympathizing and law-abiding woman would have done under similar circumstances, and yet they were used' to prejudice the defendant who was not present and was in no manner chargeable therewith. All of this character of evidence should have been promptly excluded on the objection of defendant, and to accentuate the error in this regard many of these statements and acts were permitted to go to the jury when it appears that at the time they were made and done, the defendant was actually in custody and while he was a suspect and efforts were being made to induce the little girl to make this heinous charge against him.

II. Equally grievous and hurtful, if not more so, was the action of the court in permitting Dr. Crowe to detail to the jury what he (Crowe) said to defendant while he was examining him under the order of the justice pending the preliminary trial of Frank McCants for this identical offense. Whatever may be said1 of the legality of the examination, which will be considered further on, there can be no doubt of the error in permitting the doctor to detail what he said to the defendant during said examination. [State v. Foley, 144 Mo. 600.]

III. As to the competency of the witness Jenkins to detail what the prosecuting witness said to him a. month or so after the crime had1 been committed, clearly it was inadmissible upon every consideration of justice and right as original evidence, but was it permissible on the theory that it was elicited on cross-examination? We think not. The defendant had the right to show by way of impeachment that not until a month had elapsed did the prosecutrix charge defendant with this crime, and after she had testified in the preliminary trial of McCants that the latter was the guilty party. It was competent to show the circumstances and inducements held out to the little girl to get her to change her sworn testimony and charge defendant therewith, but we think it was clearly incompetent for this witness Jenkins to proceed and detail to the jury what prosecutrix said in regard to Mrs. Newcomb making her accuse her father and in repeating her declaration that it was the defendant and not her father who had outraged her. This was pure rank hearsay; it was in no sense a part of the res gestae and the guise of cross-examination did not justify it. It could scarcely have been more injurious. It cannot be justified on the ground that it was confirmatory of her testimony after the prosecutrix had been impeached.

IV. "We are now brought to the most important question in this record. The defendant, while in custody and charged with this offense and when he was without counsel, was ordered by the justice of the peace, at the demand of the prosecuting attorney, to submit to a physical examination of his privates by a physician. He was taken into a room of the courthouse and in the presence of the sheriff was examined by Dr. Crowe, both of whom testified in this cause as to the result of that examination and as to what they saw during that examination and what they said to him.

Counsel for defendant insist this was flagrant error and was a conspicuous violation of the constitutional right of the defendant to be exempt from testifying against himself. [Constitution of Missouri, sec. 23, art. 2.]

Some effort was made to show that defendant voluntarily consented to this violation of his person, but we think it is apparent that he simply submitted because he thought he was compelled to do so. When it is considered that he was at the time in custody for this very crime; that the prosecuting attorney demanded an order from the justice for this examination; that the sheriff took him into a private room for the purpose of the examination, it is not strange that the defendant thought he was compelled to submit. It is idle to talk of his having voluntarily consented to this violation of his person. As we read the record, he had no option in the matter. It seems that the term of the prosecuting attorney who obtained this order expired a few days later and he became the counsel of McCants, who had been charged by the prosecutrix as the guilty party.

The salutary provision of section 2215, Revised Statutes 1899, would seem to have been overlooked. We think the circuit court should have excluded all this testimony of Dr. Crowe and the sheriff as to this examination. We had occasion to examine the law on this subject in State v. Young, 119 Mo. 495, and the authorities are collated there. The facts of this case bring it clearly within the reasoning of that case and upon the authority of that decision and those cited and approved therein, this testimony was incompetent and inadmissible and violative of defendant’s constitutional right not to be compelled to testify against himself. [See, also, State v. Height, 117 Iowa 650.]

V. • The testimony of Dr. Swearingen to the effect that Frank McCants had been, about four months prior to the commission of this offense, afflicted with a venereal disease but had recovered therefrom, was .entirely too remote and should have been excluded, especially as the sheriff and the former prosecuting attorney both testified that McCants had admitted to them he was thus afflicted on the very day that this crime was alleged to have been committed.

VI. As to instruction No. 5, we see no reversible error in giving it, though it would be preferable to tell the jury they may take into consideration the fact that a defendant or his wife is testifying in his own or in her husband’s behalf, instead of using the formula “will take” such fact .into consideration.

VII. As the judgment must be reversed for the errors already noted, it need' only be said that the prosecuting attorney had no right to state to the jury that the defendant when he took the witness-stand did not deny what McCants had said. We cannot too strongly condemn this tendency of prosecuting officers to violate the positive command of the statute not to refer to the failure of a, defendant to testify* [State v. Snyder, 182 Mo. l. c. 523.]

For the errors noted the judgment must be and is reversed. The testimony impresses us that this is a cause in which1 the court cannot proceed too cautiously as against this defendant. The testimony of the prosecutrix in this case, in view of her previous testimony, is, to say the least, far from convincing us the defendant should be deprived of his liberty unless far more satisfactory evidence can be produced against him.

Judgment reversed and cause remanded for a new trial.

Burgess and Fox, JJ., concur.


source: Caselaw Access Project

author: FOX, J.

license: Public Domain

text:
    THE STATE v. WILLIAM EISLER, Appellant.
    Division Two,
    May 18, 1909.
    1. PUNISHMENT: Adopted By Court: Carnal Knowledge. Where the statute places the amount of the punishment “in the discretion of the court,” a verdict returned by the jury fixing the punishing is adopted and approved by the court when it is accepted and judgment is rendered in accordance therewith, and that is a compliance with the statute.
    2. CONFLICT IN TESTIMONY: Appellate Practice: Carnal Knowledge. The jury are the exclusive judges of the credibility of witnesses and of the weight to be attached to their testimony, and when they return a verdict, which is approved by the trial court, the appellate court will not retry any question of fact in issue in the case concerning which the evidence was in conflict, for instance, in á carnal knowledge case the question of the prosecutrix’s previous chaste character.
    Appeal from St. Louis City Circuit Court. — Hon. Moses N. Sale, Judge.
    Affirmed.

      Elliott W. Major, Attorney-General, and Chas. G. Revelle, Assistant Attorney-General, for the State.
    (1) The information, which is duly verified by the assistant circuit attorney, conforms to all the requirements of the statute and good pleading, and has been uniformly approved by this court. State v. Knock, 142 Mo. 522; State v. Hall, 164 Mo. 528; State v. Day, 188 Mo. 363; State v. Lakin, 203 Mo. 548. (2) Although the statute directs that punishment for violation of the carnal knowledge statute shall be assessed “in the discretion of the court,” the fact that the jury assessed the punishment does not vitiate the verdict. The trial court, by accepting the verdict and entering up the judgment in accordance therewith, must be held to have approved and adopted the punishment assessed by the jury. State v. Harney, 168 Mo. 197; State v. Lakin, 203 Mo. 548. (3) The court did not err in refusing to permit defendant, for the purpose of impeaching the prosecutrix, to prove facts that were not material or pertinent to any issue. State v. Yalle, 196 Mo. 29; Wojtylak v. Coal Co., 188 Mo. 289. (4) Instructions 1, 2 and 4, defining the crime with which defendant was charged, correctly declared the law and have been approved by this court. State v. Knock, 142 Mo. .523; State v. DeWitt, 186 Mo. 64; State v. Thornton, 108 Mo. 640; State v. Palmberg, 199 Mo. 254. (5) Instructions 3 and 5, given by the court, and which instructions define “previous chaste character,” are correct, and instruction 1, asked for by defendant, was properly refused, because its definition of “chaste” is misleading and does not declare the law. This instruction declares “chaste” means actual virtue in conduct and principle, and that the female who delights in lewdness, who is guilty of indecencies and lost to all sense of shame, “whose conversation and manners may even have suggested the thought and opened the way, is not chaste, although she has not been guilty of sexual intercourse. ’ ’ If this were the law, the statute would be meaningless and nugatory, and its purpose defeated. If it is a defense “that her conversation and manners "may have even suggested the thought and opened the way,” then surely her request for and consent to an intercourse would be a more perfect defense, but under the law it is none. State v. Kelly, 191 Mo. 691; State v. Thornton, 108 Mo. 654; Kenyon v. People, 84 Am. Dec. 177; Andre v. State, 68 Am. Dec. 708; State v. Carrón, 118 la. 181.
   FOX, J.

This cause is brought o this court upon appeal by the defendant from a jud ment of the circuit court of the city of St. Louis r evicting the defendant of the offense of carnally k] wing one Mary Brinda, an unmarried female of previc sly chaste char acter, between the ages of fourteen years. and eighteen

On the 9th of October, 1906, the attorney of the city of St. Louis f tion, duly verified, with the clerk of of the city of St. Louis, charging tl carnally knowing one Mary Brinda, female of previously chaste character, between the ages of fourteen and eighteen years. After the entry of a plea of not guilty the trial proceeded. The evidence developed at the trial upon the part of the State dstant circuit an informacircuit court endant with an unmarried tended substantially to prove that prosecutrix lived with her mother and stepfather at 1016 Geyer avenue, St Louis, and was employed at the Standard Mills in said city; that before she became acquainted personally with the defendant he frequently stationed himself at Tenth and Julia streets, along which place.she passed each evening in returning from her work, and that on these occasions he whistled at and flirted with her. About October 8, 1905, defendant made an en- • gagement to meet her that evening at Twelfth and Soulard streets, and in accordance therewith they met and conversed about two hours, made an engagement to meet the following night, and separated. On the. following evening they met, and after talking and fondling hands for about two hours, at his request they sojourned to a dark hallway at Twelfth and Sou-lard streets and about thirty minutes after entering same defendant asked prosecutrix to have sexual intercourse with him. After some persuasion on his part she consented and . her deflowering then and there took place. He frequently thereafter met and went with her and on one or two occasions they had a disagreement, but were soon thereafter reconciled and the acts of intercourse continued at intervals until April, 1906, at which time he discarded her. On Labor Day following she discovered that she was pregnant, and had been six months, and so reported to her mother. At the time of these improper relations the prosecutrix was sixteen years old and defendant was eighteen years old. Prosecutrix testified positively that no one except defendant had ever had intercourse with her and at the time of her illicit conduct she was not aware of the significance or consequence thereof. Defendant admitted his intimacy with her when she, in the presence of defendant and other persons, stated her relations with him. Peter J. Beinhart, Emil Steismeyer and Bertha Pedter all testified that they were close neighbors and had been acquainted with prosecutrix for several years, and that her general reputation for chastity was good prior to this trouble.

On the part of the defendant there were numerous witnesses introduced, among them Herman Miller, George Wertman, Rudolph Meter and Minnie Rich, who testified that they had heard the prosecutrix indulge in profanity and tell what they termed “dirty” stories; had seen her drink beer and that she frequented Swagler’s’ dance hall, a place at which the conduct of some was not above reproach. Herman Miller, defendant’s companion, testified that on one occasion, although prosecutrix was a perfect stranger to all of them, she stated in the presence of defendant and others that boys were afraid to ask girls to have intercourse with them when taking them home from dances. Minnie Rich also testified that on a certain occasion she saw prosecutrix and one Albert Bohn walk together towards the woods, but did not know what they did. Albert Bohn, witness for defendant, testified that he had never had Intercourse with prosecutrix, although he wanted and tried to do so.

At the close of the evidence the court instructed the jury, fully presenting every phase of the case to which the testimony was applicable. The cause was submitted to the jury and they returned a verdict finding defendant guilty as charged in the information and assessed his punishment at six months in the workhouse and a fine of $200. Timely motions for new trial and in arrest of judgment were filed, taken up and by the court overruled. Prom the judgment, which was in accordance with the verdict rendered, the defendant in due time and proper form prosecuted his appeal to this court and the record is now before us for consideration.

OPINION.

The record before us discloses the absence of any brief or suggestions on the part of the appellant ás to why this judgment should be reversed; however, in obedience to the commands of the statute, we have examined in detail the disclosures of the record concerning the trial and disposition of this cause.

I.

Directing our attention to the foundation of this prosecution (which is the information upon which the judgment is predicated), we find that such information is duly verified and charges every element of the offense of which the defendant was convicted, and is in form with numerous cases which have met the approval of this court. [State v. Knock, 142 Mo. l. c. 522; State v. Hall, 164 Mo. 528; State v. Day, 188 Mo. l. c. 363; State v. Lakin, 203 Mo. 548.]

So far as the judgment and sentence are concerned, it is only necessary to say that, while the statute provides that for the commission of this offense the punishment assessed is in the discretion of the court, yet the jury fixed the punishment and the trial court approved of it and accepted the verdict and entered up judgment in accordance with the verdict; there can only be one conclusion reached upon that proposition and that is that the court adopted the punishment as assessed by the jury.

II

We have examined in detail the disclosures of the record as to the admission and rejection of evidence, and it is sufficient to say that we find that there was no error committed which affected the substantial rights of the defendant.

III.

We have also examined in detail the instructions given by the court and have fully considered them. They properly presented the law of this case very fully and fairly to the defendant. They covered every phase of the case to which the testimony was applicable; hence the assignment of error as to the instructions of the court must be determined adversely to the appellant.

IV.

This leads us to the final contention in the motion for new trial, that the evidence was insufficient to support the verdict. It is only necessary to say upon that proposition that we have read in detail the disclosures of the record as to the evidenpe developed at the trial. We find that the evidence is conflicting, particularly upon the proposition as to the previous chaste character of the prosecuting witness; but this court has uniformly held that it will not undertake to settle conflicts in the testimony of witnesses. The jury were the exclusive judges of the credibility of the witnesses and of the weight to be attached to their testimony. They returned their verdict, which was approved by the court, and we are unwilling to retry this cause upon the question of fact disclosed by the record.

Finding no reversible error in the trial of this cause the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


author: GANTT, P. J.

text:
    THE STATE v. CLAUD BROOKS, Appellant.
    Division Two,
    May 18, 1909.
    1. CONFESSION: Inadmissible. A confession to be inadmissible must be made to an officer of tbe law in consequence of improper influences exerted by him; and if no threats of barm or promises of worldly advantage be made by sucb officer, the confession is admissible.
    2. -: -: Under Arrest. Tbe fact that defendant was under arrest when be made tbe confession does not render it inadmissible; nor does mere adjuration to speak tbe truth, no threats or promises being made.
    3. -: -: Defendant’s Testimony of Threats. Where there is evidence on behalf of tbe State tending to show that no threats or promises were made to bim, tbe fact that defendant testifies that there were sucb threats and promises does not render tbe confession inadmissible.
    4. -: Improper Influences: Giving Defendant Whiskey. Defendant, a negro, was arrested about 5:30 o’clock in tbe morning of January 14th, at bis father’s house about three and a half miles in tbe country, and on tbe way into town be complained of being cold and one of tbe officers gave bim a small drink of whiskey, and after be arrived in town they gave bim a good breakfast. Three or four hours later they boarded a train for tbe city, and on tbe train be made and signed bis name to a short confession in tbe presence of tbe officers. When be left tbe train, seven or eight hours after bis arrest, they gave-him another drink of whiskey, and when they had taken bim some distance to tbe police station be made a more lengthy statement to several officers and they and a farmer who stood by testified no inducements were held out to bim, no threats or promises were made, and no intimidation used, and that be showed no signs of intoxication. Held, that there was no sucb improper influence as rendered tbe confession inadmissible as evidence, although tbe defendant testified that tbe first confession was extorted from bim by fear that be would be swung from a bridge.
    5.-: -: -: Instructions. And where tbe court instructed tbe jury that if defendant was intoxicated by tbe ■ whiskey given bim, and that be was not in a condition to realize what be was doing and that tbe confession was obtained from bim while he was in that condition, the jury should reject the confession, he got the full benefit of his claim that the .confession was not voluntary, and if the jury found against him there was no error in admitting the confession in evidence.
    fi. INSTRUCTIONS: Rejecting Defendant’s. Where the instructions given by the court of its own motion fully cover those asked by defendant and' defendant is thereby given the full benefit of those instructions, no error is committed in refusing defendant’s.
    Appeal from Jackson Criminal Court. — Hon. Wm. H. Wallace, Judge.
    Affirmed.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    (1) The confession was properly admitted in evidence. In the case at bar there was-evidence on the preliminary examination that no inducement was held out to obtain the confession from appellant, and in the absence of any improper conduct upon the part of the officers to induce such confession by flattery of hope or promise of immunity or use of threats, the confession was properly admitted in evidence. State v. Wooley, 115 S.*W. 417; State v. Spaugh, 200 Mo. 596; State v. Hottman, 196 Mo. 127; State v. Barring-ton, 198 Mo. 110; State v. Ruck, 194 Mo. 438; State v. Patterson, 73 Mo. 695; State v. Jones, 171 Mo. 406; State v. Brennan, 164 Mo. 487; State v. Stebbins, 188 Mo. 387; State v. Kennedy, 177 Mo. 98; State v. Hop-kirk, 84 Mo. 278. (2) If appellant desired an instruction on the theory of alibi he should have requested it or called the court’s attention to its failure to instruct on that subject. State v. Graves, 194 Mo. 452.
   GANTT, P. J.

The prosecution in this case was commenced by the filing of the information duly verified by the prosecuting attorney of Jackson county, wherein he charged the defendant with murder in the first degree of one Sidney Herndon on the night of January 12, 1908, in Kansas City, Missouri.

As the information is in all respects sufficient, it is unnecessary to set it forth at length in this statement.

The defendant was arrested and duly arraigned and entered his plea of not guilty and the cause was set down for trial on the 17th day of February, 1908; on which date he was put upon his trial and convicted by the jury of murder in the first degree and his punishment assessed at death. In due time he filed his motions for a new trial and in arrest of judgment, which were heard and overruled, and thereupon the defendant was duly sentenced to be hung in accordance with the verdict of 'the jury. From that sentence he has appealed to this court.

The evidence tended to prove the following facts:

Sidney Herndon was a man forty-five years of age, about four feet in height, and had deformed feet and could only walk by the aid of crutches. He lived at what is known as the Navarre Flats, located at Twelfth street and Broadway avenue, Kansas. City. He had an office and an adjoining bedroom on the second floor of said flats. There were some forty-four suites of rooms in the said flats, the building being a five-story one. The deceased was manager and collector of rents for the said flats, and owned an interest in the same; he had lived in Kansas City for a number of years, having moved there from Tyler, Texas. He was° in the habit of reading until as late •as midnight and would usually arise from nine to ten o ’clock in the morning. The defendant is a negro man about twenty-one years of age, and had lived in Kansas City three or four years prior to the date of thisi homicide. He had worked at different times as elevator boy at said flats for the deceased, but had not been employed there for a month or more prior to the homicide. Deceased was last seen alive about 11:30 o’clock Sunday night, January 12,1908, by the elevator boy, Yertner Jones, another negro. On Monday morning, January 13, 1908, about 11:30 o ’clock, deceased was found in his office room, which fronts on Twelfth street, lying on the floor dead, having been struck on the head with an ordinary hammer some four or five times, and his skull fractured at least three times. The body of the deceased was in a pool of blood, one crutch hanging up and one lying on the floor at a distance of some six feet “from the body.

The light was still burning in his office-room, and a book and a file case were lying on the table. The elevator stopped running at 12 o’clock as a usual rule, the elevator boy, Yertner Jones, and a brother of his, Emil Jones, and the fireman, Woodward, all leaving at the same time, about 12 o’clock that night. At about 11:30 o’clock Emil Jones, who was waiting for his brother to quit work, saw the defendant on the stairway near the second floor of said building and in an attitude of attempting to hide behind the railing. The defendant was noticed to have a piece of paper some five or six inches in length, rolled up as though something was contained in it. Emil asked the defendant what he was doing and defendant replied: “Keep still, do not say anything.” The elevator boy, Yertner Jones, was the last one to see the deceased alive, and this was about 11:30 o’clock that night, when the witness went into the room of the deceased and turned down the lights and closed the door and left the deceased reading a book and sitting by the table in his shirtsleeves.

The testimony also tended to show that the defendant was living with a negro woman in a rented room at 1311 Wyandotte street, Kansas City, some two weeks or more prior to the date of this homicide, and that just a few days before the homicide the woman-packed her trunk and left for Memphis, Tennessee, but defendant retained the room as his time did not expire there until Monday, January 13th. This room he rented from a negro hy the name of "Webb, who testified that he had seen the same hammer- with which deceased was killed, and which was found in the room with the body of the deceased, prior to that time in the room occupied by the defendant. That on Sunday night at 8:30 o ’clock, the defendant came to where Webb was living and said he had lost a key that Webb had given him and asked him for his key and Webb loaned him the key, and defendant went into the room and was in there about ten minutes. The defendant was seen by the elevator boy to pass the Navarre Flats that Sunday night near 11 o’clock going north on Baltimore avenue. A piece of paper was found in the room where the body of the deceased was, which corresponded in color to that torn from a shoe box found in the room occupied by the defendant. The evidence showed that the defendant had a small stove in his room and that fresh ashes were in the stove on the morning following the death of the deceased; that the bottom of a drawer in a dresser or Washstand had been knocked out and burned in the stove, and the defendant afterwards admitted that he burnt the leather pocketbook which he had taken from the deceased, in this stove.

It was further developed in the testimony that on the Monday morning after the homicide, between eight and nine o’clock, the defendant bought him a suit of .clothes, an overcoat, a hat and a pair of shoes and some other wearing apparel, from a merchant by the name of Samuel Ginsberg, at 506 Walnut street, for which the defendant paid $27 or $28. At the time he paid for these goods, Ginsberg noticed that the defendant had several ten and twentv-dollar bills. The defendant’s brother testified that on this same Monday morning, he met the defendant on Thirteenth street and the defendant gave him $15, telling him to keep ten dollars and give five to his wife.

Defendant left Kansas City Monday night at about 11 o’clock for his late home at Carrollton, Missouri. After the murder became known, two detectives and an inspector went to Carrollton, and early Wednesday morning in company with the sheriff and two deputies of Carroll county, drove out into the country some three and a half miles to the home of the father of the defendant, reaching there about 5:30 in the morning. The officers inquired of the defendant’s father whether the defendant was there and the father replied that the boys were down town,, but the officers searched the house and found the defendant and a brother of his, sleeping in a back room with both doors locked. The defendant stated to the officers that he came from Kansas City four days before this time, whereupon one of the officers said to him that he had come down the day before, and he said he guessed that was right. Defendant was then arrested by the officers and taken to Carrollton, where he was placed in charge of the jailer, and a good breakfast was provided for him before starting on his return for Kansas City. On the way into Carrollton from his father’s house, defendant complained of being cold, and one of the officers gave him a drink of whisky. At Carrollton the officers waited some three or four hours for the Santa Fe train and then started on their return to Kansas City. Soon after leaving Carrollton, the defendant made a full confession to Officer Halvey, detailing how he got into the building and into the room of the deceased and how he had killed the deceased with the hammer. He said that he went into the room of the deceased and asked for work; that he waited until after the elevator had quit running before entering the room; that he struck the deceased on the head with the hammer a number of blows and then robbed him of $150, which he found in his pants. He admitted seeing Emil Jones when he was on the stairway. After having made this confession to Officer Halvey, lie repeated the same in the presence of Inspector Ryan and Officer Raptery. Officer Halvey then in their presence wrote down the statement as the defendant made it as follows:

“On Santa Fe train. My name is Cland Brooks, I am twenty-three years old. On the night of Jannary 12th, I hit Sidney Herndon with a hammer and took $150 out of his pocket.” After making this statement the officer asked him if this was correct and he said “yes” and then signed the statement. After he had made this statement the defendant said he felt better; he said he had been nervous ever since he had been down home, but he felt better now since it was all over with. After the prisoner reached the police office, the officers positively testified that they offered him no inducements .to make the confession, nor made any threats to induce him to make it. They testified furthermore that they only gave him two drinks, one on the way from his father’s home to Carrollton, which was a very small one, and one just before they got off the train at Sheffield. After reaching the police headquarters, the defendant made another confession in the presence of Mr. Hogan, the assistant prosecuting -attorney.

' The court permitted the defendant to have a preliminary examination of the officers in regard to the confession of the defendant, out of the presence of the jury, before the same was admitted in evidence. At the trial the defendant testified in his own behalf and denied the confession had been given voluntarily, but said it was extorted from him by fear of being swung from a bridge. The court permitted the defendant’s counsel to examine the witnesses in full in the presence of the jury as to the means by which the confession was obtained. The defendant testified that he was intoxicated and the alleged confession was obtained from him through threats that he would be hung from one of the bridges spanning the river in Kansas City, if he did not confess.

The defendant corroborated Ginsberg as to the purchase of the suit of clothes from him on Monday after the homicide on Sunday night.

In a statement or confession the defendant stated that he had worked for the deceased but had quit working for him because his brother wanted him to help him; that the deceased had always been friendly to him and they had gotten along together nicely. That on Sunday night, January 12, 1908, he went up to Mr. Herndon’s room and knocked on the door; “he came to the door and I asked him for a job of work and he said, he would see about it, then I hit him with the hammer, we did not have any words or any trouble and I hit him before he bad time to defend himself. When he fell down I went through his pockets, got a pocketbook out of one of his front pockets, the pocketbook had $150 in it. I burned up the pocketbook at home where I lived. I put the money in my pocket and spent some of it and lost some of it playing poker with a white man on Sixth and Grand. I do not know where all the money went. I bought some clothes and other things and gave my brother ten dollars and bis wife five dollars and my other brother five dollars. I never told them where I got this money. I knew Mr. Herndon carried a lot of money around with him, he always had hispockets full of silver and I seen him have his pocketbook with a lot of money in it, I expected to get about twenty-five or thirty dollars. About two or three weeks ago I got ‘out of work and was short of money, I tried to get work but could not, so about two or three days before Sunday I decided to go up and rob Mr. Herndon. Two months ago I found a hammer at the place I roomed at, and I had kept it since, so I thought I would take the hammer up and knock Mr. Herndon in the head with it and rob him and I thought that it that way I would get enough money to live on for a while, so I waited until Sunday night, January 12th, when I went up to Mr. Herndon’s room and knocked him in the head as I told you before. When I got in I met a little colored boy named Emil Jones, he is a brother to the fellow who runs the elevator. I was. sitting on the steps waiting until the elevator man quit work, this was about 12 o’clock Sunday night, and he was supposed to quit work at 12 o’clock. When Emil came back he saw me and said, ‘Why, that is old Slick, ’ I said something to him but I do not remember what it was. After this Emil went away and in a little while Emil’s brother quit work and they went home, then I went upstairs after they had gone. I did not see anybody else in the building. I went to Mr. Herndon’s room and asked him for a job and knocked him in the head with this hammer. The hammer Mr. Hogan showed me is the hammer with which I hit Mr. Herndon. It is my hammer. I found it and kept it in my room. I carried this hammer from my room to the Navarre building that night wrapped up in a piece of paper. I carried it in my hand when I crawled into the window and held it in my hand when I met Emil Jones on the steps. I had a paper wrapped around the hammer when I hit Mr. Herndon with it. This statement is the truth and I make it of my own free will.”

Mr. James B. Colton testified that he lived in Jackson county and was a farmer; that he was present at the time the defendant made his confession *to Mr. Hogan at the police station and the confession was written, down in his presence. He testified that the facts stated in the confession were stated in his presence by the defendant; that there were no threats made to induce the defendant to make these statements, nor any promises held ont to him; that the defendant was sober as far as he was able - to judge.

The defendant is not represented in this court by counsel and we have been compelled to examine this record in view of the various grounds assigned for a new trial.

I. The defendant objected to the evidence tending to prove his confession of the crime with which he was charged.

As already said, before his confessions or admissions of guilt were permitted to go to the jury, the court granted the defendant’s counsel the right of a preliminary examination to ascertain whether the said confessions were obtained by means of promises of leniency held out to him or by threats to induce him to make the same. A careful reading of the testimony offered on this preliminary hearing clearly establishes that there were no inducements, either favorable or threatening, held out to the defendant to obtain this confession from him.

In State v. Patterson, 73 Mo. l. c. 705, it was ruled that it is the duty of the court to determine as a preliminary question whether a confession was made with that degree of freedom which ought to occasion its admission as evidence, and the criminal court followed this course in respect to this confession. The law is now settled in this State that a confession to be inadmissible must be made to an officer of the law in consequence of improper influences exerted by him and if no threats of harm or promises of worldly advantage be made by such officer or by the master of the accused when directly concerned, the confession is admissible. The fact that the defendant was under arrest did not render the confession inadmissible, and it has been often ruled that a mere adjuration to speak the truth does not vitiate the confession, no threats or promises being employed. And' it has also been ruled that where the evidence on behalf of the State tended to show that there was no such promise or threat made, the fact that the defendant afterwards testified that there were such promises, will not render the confession inadmissible. There can be no doubt that the confession in this case was properly admitted in evidence. [State v. Jones, 171 Mo. l. c. 406; State v. Brennan, 164 Mo. 487; State v. Spaugh, 200 Mo. l. c. 596, 597.]

II. Moreover, in this case, in instruction number 11 given by the court, the court expressly told the jury that if they found from the evidence that the confession made by the defendant to the officers and other persons having the defendant in custody were made by inducements held out to the defendant in hope of escaping punishment or any other inducement amounting to threats, fears or promises, and that from such inducements the defendant made his several confessions they should disregard them. And in instruction number 10 the court instructed the jury that if they believed from the evidence that the defendant, while in custody of the officers, was given intoxicating liquors and that thereby the defendant was not in a condition to realize what he was doing, and while in that condition a confession was obtained from him, then the jury should reject such confession. So that the defendant had the full benefit of his claim that his confession was not voluntary. But the jury found that the said confession was voluntarily made.

The fact that the defendant testified that he did not make the confession, or if he did it was made while he was intoxicated, or through fear, did not overcome the showing made by the State that his confession was voluntarily made. It would be contrary to reason to exclude confessions voluntarily made at the time merely because the defendant should afterwards conclude to testify that they were obtained by duress or promise of immunity.

III. As to the refusal of instructions number 1, 2, 3 and 4, requested hy the defendant, it must suffice to say that each of these instructions was fully covered and the defendant given the full benefit thereof, in the instructions given by the court of its own motion,

IY. The complaint that the court did not instruct upon the question of alibi is answered by the fact that in its 8th instruction the court expressly directed the jury that if the evidence raised a reasonable doubt in their minds as to the presence of the defendant at the time and place where the crime was charged to have been committed, they would acquit him.

Y. The objections to the instructions given on behalf of the State were properly overruled. There is no occasion for their reproduction in this opinion for the reason that they are such as have been often approved by this court.

The evidence in this case establishes a coldblooded, deliberate murder, for the purpose of robbery, without the slightest provocation, and the evidence all points to the defendant as the perpetrator of the crime.

The defendant was given a fair and impartial trial.

The judgment of the criminal court must he and is affirmed, and is ordered to be carried into execution as therein directed.

Burgess and Fox, JJ., concur.


text:
    THE STATE v. TONEY FOLEY, Appellant.
    Division Two,
    May 18, 1909.
    ■ 1. OBJECTIONS: How Preserved. If a party desires the appellate court to review the action of the trial court, it is his duty to make his objections in the trial court and if they are overruled to save his exceptions to such ruling, and then to call the attention of the trial court to such alleged error in his. motion for a new trial, and to save his exceptions to the overruling .of his motion.

      -2. INSTRUCTION: Objection: Failure to Fully Instruct: Not Sufficient. Merely assigning in the motion for a new trial that the court failed to fully and properly instruct as to all the law of the case, is not an exception to the instructions actually given, but merely goes to the failure of the court to instruct on points not covered by the instructions given.
    Appeal from St. Louis City Circuit Court. — Hon. Moses N. Sale, Judge.
    Affirmed.

      C. Or rick Bishop and Henry M. Walsh for appellant.

      Herbert S. Hadley, Attorney-General, and Frank Blake, Assistant Attorney-General, for the State.
   GANTT, P. J.

On February 13, 1907, the circuit attorney for the city of St. Louis filed an information against the defendant in the circuit court of the city of St. Louis charging him with having, on the 9th of February, 1907, at the city of St. Louis, committed an assault, with malice aforethought and with a deadly weapon, a pistol loaded with leaden balls and gunpowder, upon Patrick Stapleton, with intent then and there him the said' Stapleton, feloniously, willfully, on purpose and of his malice aforethought to kill.

The defendant was duly arrested, arraigned and pnt upon his trial and convicted of an assault with intent to kill, without malice aforethought, and his punishment assessed at five years’ imprisonment in the penitentiary. Having been sentenced on this verdict, the defendant has appealed to this court.

The evidence tended to prove that on the night of February 9, 1907, the defendant and eight or ten companions came out of a saloon at Twenty-third and Franklin avenue in the city of St. Louis about twelve o ’clock, and the party were swearing and cursing, and Stapleton, a police officer, ordered them off of the corner and they moved to the opposite corner and renewed their wrangle. Stapleton again ordered them to desist and to move on. One of the crowd inquired of the officer if he intended to lick them and he replied he only desired to get them off of the street, and as he said this defendant struck him about the ear and knocked him down, and while he was down, others of the crowd kicked him. He then drew his pistol and fired twice but did not strike any of them. They ran and he pursued and caught defendant- and placed bim under arrest, and with his revolver in his hand started with him to the station, followed by the other members of the party. After having gone a short distance one of the defendant’s companions threw his arms around the officer and pinioned him, and the others exclaimed, “Give it to him.” In the scuffle the defendant got the officer’s revolver and they both fell to the sidewalk. The defendant got up and ran and turned and fired directly at the officer. There was some evidence that the revolver was fired by accident, and some to the effect that the officer struck defendant with the revolver as they walked towards the station.

The court instructed the jury on assault with malice aforethought and assault to kill without malice aforethought, and the right of the officer to arrest, reasonable doubt, and presumption of innocence, and credibility of witnesses. Three of the court’s instructions are assigned as error and will be considered in the opinion. Other assignments will be noted.

I. As to the accidental discharge of the pistol, the court in its fourth instruction told the jury, “If you find and believe from the evidence that the pistol mentioned in the evidence became accidentally' discharged while the prosecuting witness and defendant Foley were scuffling and that defendant did not shoot at the prosecuting witness. iStapleton, then you will return a verdict of not guilty.”

This fully covered defendant’s testimony on this point and defendant has no ground of complaint that this defense was not fully presented to the jury. There was not a scintilla of evidence tending to prove that the shooting was done in self-defense.

II. The objection to the fifth instruction is equally groundless. It was a plain, simple statement of the right and duty of the officer to arrest for a breach of the peace and was based upon the testimony in the ease.

III. A motion for rehearing was duly filed in this cause and briefs in support of and in opposition thereto. The motion is chiefly aimed at the approval by this court of instruction numbered 6 given by the circuit court. When the opinion was written in this case our attention was not called, as it is now, by the Attorney-General, to the fact that the motion for a new trial had not properly preserved the error, if any, in the giving of this instruction. The only reference to the action of the circuit court in regard to giving or refusing instructions is found in the seventh assignment of the motion for new trial, in these words: “The court failed to fully and properly instruct the jury as to all the law in the case.”

It is settled law in this State that if a party desires the appellate court to review the action of the circuit court, it is his duty to make, his objections in the trial court, and if overruled save his exceptions thereto, and then call the attention of the circuit or trial court to such alleged error in his or its motion for a new trial, and save his exceptions to the overruling of his motion. [Ross v. Railroad, 141 Mo. l. c. 395; State v. Gilmore, 110 Mo. 1.] Again, it has been repeatedly ruled that merely assigning, as this motion for new trial does, that the court failed to fully and properly instruct the jury as to all the law of the case, was not an exception to the instructions which the court did give, but merely went to the failure to instruct on points not covered by the instructions given. [State v. King, 194 Mo. l. c. 482; State v. Espenschied, 212 Mo. l. c. 222; State v. Long, 209 Mo. 366.]

The result js that this court inadvertently considered the sufficiency of said instruction numbered 6, which defendant now insists was erroneous. Our attention having now been called to the fact that the error, if any, in giving this instruction was not called to the attention of the circuit court, our opinion is modified, by withdrawing the third paragraph of our opinion as originally handed down and by declining to approve or disapprove the same, and by covering said point in the last paragraph hereof as follows: “As to the points now urged for new trial, to-wit, error in giving the sixth instruction, newly-discovered evidence and improper remarks by the circuit attorney, it need only be said, no such grounds are assigned in the motion for new trial and hence cannot be considered on this appeal.”

With this correction and modification the rehearing will be and is denied, and the judgment of the circuit court is affirmed.

Burgess and Fox, JJ., concur.


text:
    THE STATE v. CHARLES A. VINTON, alias J. D. HARDY, Appellant.
    Division Two,
    May 18, 1909.
    1. INSTRUCTION: Larceny: Good Character: No Evidence. Whefe there is evidence of defendant’s good character, it is error to fail to give an instruction, when reguested, to the effect that the jury are to determine whether the evidence of defendant’s good character is sufficient to overcome the presumption of his guilt arising from a recent possession by him of the stolen goods; but it is not error to fail to give such an instruction where there is no evidence offered by either side as to the good character and habits of life of defendant.
    2. CORPUS DELICTI: Larceny: Proof. The corpus delicti in a larceny case may be established by purely circumstantial evidence; and where the evidence clearly shows that certain rings and brooches were stolen from a certain company, that they were its property, that they were missed’ from the store window on a certain day, that they were found seventeen days later in defendant’s possession in a different city, that some of them were hidden in the mattress of his bed, that he claimed to have bought them in the city where the jewelry company did business, that they were positively identified by the company’s registered mark thereon, and that defendant made conflicting and damaging statements about how they came into his possession, it cannot be said, in view of the rule of law that recent possession of stolen property is presumption of guilt, that there was a total failure to prove the corpus delicti.

    3. -: -: Salesmen as Witnesses: Explanation. Where the jewelry was traced to defendant soon after it was missed from the store, it wa§ not necessary for the State to introduce all the salesmen in the store for the purpose of negativing the fact that they had sold or disposed of it, but explanation should come from defendant as to how he came into possession of it.
    Appeal from St. Louis City Circuit Court. — Eon. Moses N. Sale, Judge.
    Affirmed.

      Willis H. Clark for appellant.
    There was an utter absence of proof of the corpus delicti of the offense with which appellant stood charged. The proven facts were not “inconsistent with any reasonable theory of the defendant’s innocence” of the crime charged. Of the seven or eight salesmen who had access to and authority to sell these goods only two were placed on the stand. The evidence did not exclude the hypothesis that the goods might' have been sold by some salesman and the sale report omitted either inadvertently or with criminal intent, or that the goods had been sent out on approval of some prospective 'customer, or had been, taken back to the manufacturing part of the establishment for alterations or repairs, or that they might have been appropriated by some employee having access and opportunity to take them, either rightfully or wrongfully, in which case the crime committed, if any, would be that of larceny or embezzlement of the goods or their proceeds by such employee. The evidence left all these matters in the realm of conjecture, hence it did not exclude every other hypothesis except that of the guilt of appellant of the offense charged against him. If the goods had been sold they were certainly not stolen from the complainant, no matter if some salesman or employee did steal or embezzle the proceeds. Perhaps they might have been sent out on approval by some salesman who did not care to incur censure until he could either return the goods or turn in their purchase price. In either of these eases the possession of the goods by appellant would be innocent so far as this charge is concerned. Not only is the evidence subject to the above criticism, but it is also open to the objection that in and of itself it tends affirmatively to show that the offense charged against appellant could not have been committed by him. Mr. Bolland, president of the complaining company, testified readily to the arrangement of the show window, diamond room and store room with reference to such contingencies and stated frankly that the very purpose of it was to make theft by outsiders impossible, a result which he believed had been accomplished. He also stated that their first investigation led to the conclusion that the goods must have been taken by some salesman or employee, and that it was reported to the police authorities as such, because it was thought impossible that any other person could have reached the goods. The evidence attempting to fasten upon appellant the alleged “possession” of some of the articles is ludicrous as exemplifying current police methods. The police officer, in appellant’s absence, obtains from persons who had means and opportunity for entrance to appellant’s room, the key to the room and himself effects an entrance, whereupon he proceeds to “discover” some of the property concealed in the room. Such discoveries have received the attention of the courts in this State in previous instances. State v. "Wilks, 58 Mo. App. 159; State v. Castor, 93' Mo. 242. Not satisfied with this exploit, he “confronts” appellant with a pawnbroker and was permitted to narrate to the. jury his hearsay testimony as to an alleged statement made by the pawnbroker. Possibly neither this Cleveland policeman nor the trial court had ever heard of the decisions of this court upon such matters. State v. Foley, 144 Mo. 600. And the crowning achievement of all was the comedy enacted at police headquarters in Cleveland,, in order to fix upon appellant the “possession” of the goods. The police officials solemnly and soberly handed the brooch to the pawnbroker, who in turn handed it to appellant, who in turn “redeemed” it with his own money, kindly loaned' him by the police for that purpose, and then “voluntarily” surrendered it to the police officials. In like manner wa.s the ring traced to the “possession” of appellant, being discovered upon his finger in some mysterious way some time after Ms arrest and wMle he was incarcerated ‘‘incommunicado” in the police headquarters at Cleveland.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
    (1) (a) The testimony of John F. Bolland relative to the register was competent. And the objection to it was also met by the subsequent introduction of the register itself. The identification of the jewelry by Bolland and the salesmen was not error. State v. Dale, 141 Mo. 288; State v. Babb, 76 Mo. 504. It was not error to permit the secret numbers on the Jewelry to be read to the jury. Evidence of the marks was admissible without producing the ai 'leles at all. State v. Moore, 52 La. Ann. 608; State v. Kiger, 116 N. C. 750. The numbers were not discernible by the eye unaided. They were not easily distinguishable with a glass. The jury were properly permitted to examine the articles by the aid of a magnifying glass. Short v. State, 63 Ind. 380. Under the circumstances the skilled jeweler with a glass adapted to his own eye served in the capacity of an interpreter of the secret numbers which were practically invisible to the jury. The evidence was not secondary, and the jury had the articles before them. Physical facts are convincing evidence. State v. Crow, 107 Mo. 350; Spittorf v. State, 108 Ind. 172. (b) The jewel register was competent to the exent to which it was admitted. It was shown to have been made at the time the various articles were numbered. The correspondence between the numbers on the jewelry and the numbers on the jewel register was proper matter of identification, and the register was admitted no further than to show that correspondence. The numbers were shown to have been entered long prior to the theft, (c) The letter addressed to J. D. Hardy found upon' defendant when he was arrested was competent under the information as tending to show that he was receiving mail under an assumed name. Pie was occupying a room at the American Hotel under the same alias. (2) (a) Substantial evidence is all that is required to sustain the verdict. This court will not undertake to try questions of fact de novo. State v. Miller, 188 Mo. 379; State v. McGee, 188 Mo. 409; State v. Smith, 190 Mo. 723. (b) The corpus delicti may be proved by circumstantial evidence. State v. Rodman, 62 Iowa 459; Colquitt v. State, 61 Ala. 52; Martin v. State, 125 Ala. 70; 1 McLain’s Crim. Law, par. 612; 25 Oye. 120; Territory v. Doyle, 7 Mont. 250; Roberts v. State, 61 Ala. 406. (c) The taking was also proved. The most usual and cogent proof of the caption and asportation of the property consists in proof of the prisoner’s possession of the stolen, goods. That proof is here. Price v. Com., 21 Gratt. 865; Duckett v. State, 65 Ga. 369. (d) The non-consent of the owner may be shown by circumstantial evidence. People v. Jacks, 76 Mich. 221; Wilson v. State, 12 Tex. App. 487; Wiegriefe v. State, 66 Neb. 26; State v. Osborne, 28 Iowa 11. Search is cogent evidence of non-consent. Rains v. State, 7 Tex. App. 590. (e) The ownership and identification of the property was amply sufficient when measured by cases justly affirmed by this court. State v. Soper, 207 Mo. 505; State v. Donovan, 121 Mo. 500. (f) Defendant’s possession of the jewelry as shown by the evidence, under the circumstances of this case, was sufficient to warrant a verdict of guilty. State v. Kelly, 73 Mo. 616; State v. Owsley, 111 Mo. 454; State v. Babb, 76 Mo. 503; State v .Lange, 59 Mo. 419. Defendant being found in possession of the jewelry and offering no explanation of that possession, the presumption of guilt became conclusive. State v. Kelly, 73 Mo. 614. The fact that defendant was apprehended in another State did not destroy, the presumption of guilt arising from his possession of the jewelry. Merely crossing a State line does not destroy a rule of evidence based upon human nature. State v. Kinsman, 7 Rich. (S. C.) 503; McGuire v. State, 6 Baxt. (Tenn.) 623. The question of the recency of the possession sufficient to raise a presumption of guilt depends on all the facts and circumstances. State v. Bruin, 34 Mo. 541; State v. Floyd', 15 Mo. 356; Price v. Com., 21 Gratt. 866. The lapse of time impairs the strength of the presumption arising from possession by reason of the fact that memory is not infallible and the circumstances attending the acquisition of the property, the source from which it was acquired, etc., may escape the memory. Consequently the mere lapse of time may obviate the necessity of an explanation of possession. But in this case the defendant claimed to have' bought the goods at the World’s Fair, some years before. The falsity of this statement leaves but a question of identity, and, when it is established, the presumption from possession attaches without regard to lapse of time between the taking and the discovery of the. goods in defendant’s keeping. Queen v. Evans, 2 Cox. C. C. 270. In the following cases the presumption from recent possession was applied on evidence less conclusive than that in the case at bar. And the time elapsed since the taking had been greater in some instances: State v. Wright, 199 Mo. 163; State v. Crank, 75 Mo. 406; State v. Gebey, 196 Mo. 106; State v. Estes & Johnson, 209 Mo. 303; State v. Reed, 122 Mo. App. 367; State v. Yates, 159 Mo. 526.
   FOX, J.

This cause is now presented to this court upon appeal by the defendant from a judgment of the circuit court of the city of St. Louis, convicting him of grand larceny.

On March 16, 1907, the circuit attorney filed in the circuit court of the city of St. Louis an information, duly verified, charging defendant with grand larceny. The stolen property consisted of jewelry of the value of fifteen hundred dollars, and was alleged to be the property of J. Bolland Jewelry Company, a corporation. The defendant was duly arraigned and entered his plea of not guilty. On March 22, 1907, this cause was continued to the next term of court; however, on April 15, 1907, both parties announcing ready for trial, a jury was impaneled and sworn and the trial of the cause proceeded. The facts developed upon the trial of this cause were substantially as follows:

The three rings and two brooches charged in the information to have been stolen by defendant were shown by the evidence to have been the property of the J. Bolland Jewelry Company, a corporation, whose place of business was at 513 Locust street, St. Louis, Missouri. The rings and brooches in evidence were identified quite positively by the witnesses on inspection and by means of secret marks registered by the company. The register was in evidence. The total value of the jewelry alleged to have been stolen by defendant was fifteen hundred and seventy-two dollars. The pieces comprising the lot were severally valued by the witnesses at sums ranging from about one hundred and twenty-five to nearly four hundred dollars. The jewelry in evidence was shown to have been part of the J. Bolland Jewelry Company’s window display in February, 1907, and the two brooches and the diamond ring were placed in the window on the morning of February 23, 1907, by the witness Lindsley. At 6 p. m. of that day, when the jewelry used in dressing the window was removed therefrom, these three articles were missing. The two other missing rings seem not to have been in the show window on that day. Search was instituted immediately upon discovery of the loss, but the articles were not found. It was at first suspected that some employee had abstracted the jewelry in question, but that suspicion never took the direction of any particular person.

On March 12, 1907, seventeen days after the loss of the jewelry by the Bolland Company of St. Lonis, defendant was arrested in Cleveland), Ohio.. He was wearing the ring set with rubies and diamonds when arrested. Defendant at first denied having any of the other jewels, but being confronted with one Miller, a pawnbroker, he admitted pawning the diamond brooch at Miller’s establishment in Cleveland, and repaid him twenty-five dollars of the loan, thereby recovering the brooch. Defendant had secured thirty dollars from Miller He, also, first denied that he was staying at the “American House” in Cleveland, but finally admitted that the contrary was true. A search of his room there had already been made, resulting in the discovery and reclamation of the diamond and pearl-studded brooch. After these occurrences, defendant laid claim to the jewelry, saying he had bought it at the World’s fair from one Collins or Collors, and that it belonged to his wife. He added, however, that he now had it and was going to dispose of it. After his arrest he explained placing the pearl brooch between the mattresses in his room by saying it was safer there, and that he might have lost it. Defendant claimed to have been keeping the jewelry prior to visiting Cleveland in a safe deposit vault in St. Louis. When arrested defendant was using as an alias the name of J. D. Hardy.

There was no testimony offered on the part of the defendant, but at the close of the State’s case defendant requested the court to give an instruction, in the nature of a demurrer to the evidence, that the jury be directed to return a verdict of not guilty. This request was refused, to which action of the court defendant preserved his exceptions.

The court fully instructed the jury upon every phase of the case to which the testimony was applicable. It is not essential that the instructions be reproduced. We will give them such attention as may be required during the course of the opinion. The defendant preserved exceptions to the giving of instructions by the court; however, he asked no specific instructions, except the demurrer heretofore referred to, neither did he indicate the particular matters on which he desired additional instructions given.

The cause being submitted to the jury upon the evidence and instructions of the court they returned a verdict finding the defendant guilty as charged, fixing his punishment at imprisonment in the penitentiary for a term of two years. Timely motions for new trial and in arrest of judgment were filed and by the court overruled. Sentence and judgment were entered of record in accordance with the verdict and from this judgment defendant prosecuted this appeal, and the record is now before us for consideration.

OPINION.

I.

The record in this cause discloses numerous assignments of error; however, the brief and argument of learned counsel for appellant is confined principally to the discussion of the question presented as to whether.or not there was any proof of the corpus delicti of, the offense with which appellant stands charged.

We have carefully considered in detail the disclosures of the record and have analyzed all of the evidence. The record discloses numerous objections to the admission of evidence offered by the State, and it is sufficient to say regarding the action of the court in its rulings upon such objections that we have carefully considered the testimony offered, as well as the objections interposed by the defendant, and in our opinion there was no substantial error committed by the court, none at least affecting the substantial rights of the defendant respecting a fair and impartial trial.

II.

This brings us to the consideration of the instructions given by the court. We have carefully examined in detail all of the instructions submitted to the jury, and in our opinion they fully cover every phase of the case to which the testimony was applicable. While counsel for appellant' properly preserved exceptions to the giving of all instructions by the court, yet in his brief and argument he does not undertake to criticise or point out any errors in the instructions as given. It may be said that it was error to omit the qualification in instruction number 2, in reference to good character as one of the elements for the consideration of the jury in passing upon the question as to whether or not such evidence of good character was sufficient to overcome the presumption of guilt by reason of the recent possession of the stolen articles. But as applicable to the facts in this case there was no error in giving the instruction in the form as presented by the court, for the reason that there was no evidence offered by the defendant or the State as to the good character or habits of life of the defendant.

There is no merit in the assignment of error that the court failed to cover all the law by its instructions. There is an entire absence from this record of any suggestions on the part of the defendant to the court as to any subject upon which an instruction was desired; but as before stated, the instructions of the court fully covered every theory of this case to which the testimony had any application.

III.

This leads us to the consideration of the proposition so earnestly and ably presented by counsel for appellant that there is an entire absence of any proof of the corpus delicti.

We are unable to give our assent to the insistence of appellant that there was no proof of the body of this crime. It is well settled that the corpus delicti may be established by purely circumstantial evidence. In 25 Cyc. 120, in the text, it is expressly stated that the corpus delicti may be established by purely circumstantial evidence. There are numerous cases cited supporting the announcement of the rule in the text. [State v. Rodman, 62 Iowa l. c. 459; Colquitt v. State, 61 Ala. l. c. 52; Martin v. State, 125 Ala. l. c. 70; McLain’s Crim. Law, par. 612; 25 Cyc. 120; Territory v. Doyle, 7 Mont. l. c. 249, 250; Roberts and Williams v. State, 61 Ala. 405, 406.]

The testimony in this case shows beyond all controversy that the property designated in the information was stolen from the J. Bolland Jewelry Company, a corporation, doing business in the city of St. Louis. The testimony clearly shows that the jewelry as described in the information was the property of the J. Bolland Jewelry Company, and that these articles were missed from the store, which was located at 513 Locust street, St. Louis, Missouri, on February 23, 1907. Careful search, was made for the missing articles but they could not be found. The matter was then referred to the police department for investigation, and on March 12, 1907, in the city of Cleveland, Ohio, seventeen days after the articles were missed from the store of the jewelry company, the defendant was arrested and when arrested had in his possession and was wearing one of the rings that was missed from the store of the jewelry company. In his room at the hotel in Cleveland, Ohio, one of the brooches charged to have been stolen was found concealed between the mattresses of the bed; another one of the brooches he had pawned at a broker’s shop. It was also shown that he was going under an assumed name and made false and conflicting statements regarding himself, his name, the jewelry and other matters. He claimed to have gotten possession of the jewelry in St. Louis; to have bought it there and to have had it in a safe deposit vault. The defendant also claimed in conversation with some of the witnesses that he had bought this jewelry at the World’s Pair, and that it belonged to his wife. Each of the articles of jewelry traced to the possession of the defendant in Cleveland, Ohio, was fully identified as being the property of the J. Bo 11 and Jewelry Company. On the part of the defendant there was no testimony whatever, either by himself or other witnesses, explanatory of his possession of the articles charged to have been stolen. The testimony offered by the State as to the identification and value of the jewelry was competent and entirely satisfactory. Upon that state of facts we have the well-settled rule of law applicable to the presumption of guilt springing from recent possession of stolen property. The rule applicable to this presumption has been well settled by numerous ¡writers upon circumstantial evidence. It is said: “Since the desire of dishonest gain is the impelling motive to theft and robbery, it naturally follows that the possession of the fruits of crime, recently after it has been committed, affords a strong' and reasonable ground for the presumption that the party in whose possession they are found, was the real offender, unless he can account for such possession in some way consistently with his innocence. The force of this presumption has been recognized from the earliest times; and it is founded on the obvious consideration, that if the possession had been lawfully acquired, the party would be able, at least shortly after its acquisition, to give an account of the manner in which it was obtained; and his unwillingness or inability to afford such explanation is justly regarded as amounting to strong self-condemnatory evidence.” [Wills, Circ. Ev., sec. 4, p. 68; 2 Best on Ev., sec. 321.]

Mr. Burrill on Circumstantial Evidence, page 446, announced the rule “that the possession of property which has been recently stolen raises such a presumption of guilt against the possessor as to throw on him the burden of showing how he came by it, or that he came honestly by it; and, in the event of his failing to do so, to warrant the final inference or conclusive presumption of his being the real offender.”

Along the same line Best on Evidence, sec. 211, states the rule in this language: “Not only is this presumptive evidence of delinquency when coupled with other circumstances, but, even when standing alone, it will in many cases raise a presumption of guilt, sufficient to cast on the accused the onus of showing that he came honestly by the stolen property; and in default of his so doing, it will warrant the jury in convicting him as the thief.”

The rule above as announced by the text-writers has by a long line of decisions met with the approval of this court, and instructions embracing the principles announced by the text-writers have uniformly .been apqiroved by this court. [State v. James, 194 Mo. 268; State v. Barker, 64 Mo. 282; State v. Owens, 79 Mo. 619; State v. Sidney, 74 Mo. 390; State v. Kelly, 73 Mo. l. c. 614-616:]

We have not reached that stage in the administration. of the criminal laws of this State to require positive proof by some eye-witness that the property was taken, and as applicable to the facts in this case, we are unable to conceive of more convincing proof that a larceny had been committed and that defendant was guilty of such larceny, when it was shown that the articles of jewelry left the store of the jewelry company without the consent of the owners and recently thereafter are found in the possession of the defendant, who was going under an assumed name, and who failed to introduce any proof of any character which in any way tended to rebut the presumption of guilt arising from such recent possession. It was not essential, as is very aptly stated by the learned Attorney-General, to require a resolution of the board of directors of the J. Bolland Jewelry Company to show that it did not consent to the taking or disposition of these articles of jewelry.

Appellant complains that a number of salesmen of the jewelry company were not introduced as witnesses to explain what connection they had with the disposition of the articles of jewelry involved in this proceeding. It is a sufficient answer to that complaint to say that when the jewelry was traced to the possession of the defendant explanation should come from him as to how he came into possession of the property, and it was by no means essential to introduce all of the salesmen connected with the jewelry company for the purpose of negativing the fact that they had sold or disposed of the property to anyone. When the property was found in the possession of the defendant explanation as to bis possession rested upon him. It was expressly ruled in Roberts and Williams v. State, 61 Ala. l. c. 406, that as a legal proposition it was not necessary that the State should have introduced all the clerks in the store and proved by them severally that they did not sell the. articles charged to have been stolen.

The ownership and identification of the property were clearly shown by the evidence introduced by the State, and that this property was stolen, under the disclosures of the record.in this cause, is too plain for discussion, and as was said in State v. Kelly, supra, “the possession of property which has been recently stolen raises such a presumption of guilt against the possessor as to throw on him the burden of showing how he came by it, or if he came honestly by it.”

IV.

We have carefully read in detail all the evidence as disclosed by the record, and have carefully considered all the complaints of the appellant directed to the action of the trial court during the progress of the trial, and are unable to discover any substantial error upon the record before us. If the uniform rulings of this court concerning the presumption arising from the recent possession of stolen property are to be longer followed, then we see no escape from the conclusion that the jury were fully warranted in finding the defendant guilty of the larceny charged.

Entertaining these views the judgment of the trial court should be affirmed, and it is so ordered.

All concur.