text:
    THE STATE v. MARY FERGUSON, Appellant.
    Division Two,
    June 8, 1909.
    1. KEEPING GIRL IN BAWDY HOUSE: Evidence. The evidence in this case, in which defendant is charged with permitting her daughter, aged fifteen years, to enter into an<? remain in a bawdy house kept by her, is reviewed, and held to make out a very weak case, if any at all; but the judgment-is not reversed on that ground, because the insufficiency of the-evidence is not assigned as error.
    2. -: Excessive Punishment: Three Years. Defendant was in charge of six rooms on the second floor of a building in Springfield; she was a widow and had four children, among them a daughter Leona, sixteen years old, all of whom occupied two rooms; the said house is charged to be a bawdy and assignation house, and defendant is charged with being the ' keeper thereof, and to have feloniously permitted the said Leona to enter and remain therein; two of the rooms she had rented to two women of bad character, reputed prostitutes, who received and entertained male companions in their rooms at unseasonable hours; the other two rooms she rented to two men, who paid her five dollars a week for them; there was no evidence tending to show that the character of Leona was questionable, or that she associated with either of the two women that rented rooms from the defendant, but on the contrary the testimony is that she was a virtuous girl, and stayed and slept in the same room with her mother, the defendant. Held, that a punishment of imprisonment in the penitentiary for three years, under the evidence, is excessive.
    3. -: Instruction: Assuming Fact. The instruction told the jury that “if you believe and find from the evidence that the defendant, at any time within three years before the filing of the information in this case, being then and there the keeper or the person in charge of a certain house, to-wit, the apartments on the second floor of the building located at number 409 Boonville street in the city of Springfield, said house and apartments being at such time used as a common bawdy house, or house of assignation, did then and there feloniously permit a certain female,” etc. Held, not to submit to the jury the question of fact whether the -defendant was the keeper or person in charge of the house described, nor whether said house was at the time mentioned being used as a common-bawdy house, or house of assignation, but assumes such issuable facts to be true, and is therefore reversible error.

      .Appeal from Greene Criminal Court. — lion. A. W. Lincoln, Judge.
    Reversed and remanded.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
    Practically every element of the offense was either •admitted by defendant while testifying in her own behalf, or was proved by the record of her pleas of guilty to charges lodged against her in the police court in the city of Springfield. The proof on every phase of the case was plenary. Defendant’s counsel, however, in the motion in arrest of judgment, questions the application of the statute to the facts since the girl, Leona, was the daughter of defendant. It is intimated in State v. Horn, 83 Mo. App. 50, that the relationship of the daughters in that instance entitled them to remain in the house. But it was also held that the daughters’ reputation as bawds was admissible against their mother in a prosecution against her for keeping a bawdy house. Section 2202 makes no exceptions. It no more authorizes an unnatural another to expose a young girl who happens to be her own daughter to the immoral and destructive influences of the place she conducts than it authorizes her to so expose the veriest stranger. Ezekiel, 16:44. The parent has no inalienably vested right in the society and custody of the child. This is given recognition by the courts in eases involving the custody of children. The same principle has received legislative sanction and been formulated and enacted into positive statute which makes express provision for the removal of minors, males or females, whose environment is vicious, from parents who may be shown to be unfit to have their custody. Sec. 1475, R. S. 1899. A parent may, therefore, forfeit the custody of the minor child, and it is no undue hardship that this section of the statute should force the separation of the mother engaged in conducting’ a bawdy house from her young daughter, or subject her otherwise to the penalties it prescribes. Keeping a disorderly house is a crime and of itself puts the keeper, to an extent, beyond the pale. The Legislature had the constitutional right to enact section 2202. They excepted none from its operation,'and the courts, always loath to engraft upon a statute exceptions not expressly provided for by its terms, are warranted by every consideration of law and morals in denying defendant’s contention that the Legislature meant so much less than it said.
   BURGESS, J.

On the first day of May, 1906, the prosecuting attorney of Greene county filed in the criminal court thereof an information charging that the defendant, “on the 1st day of April, A. D. 1906, and from that date continuously until the 25th day of April A. D. 1906, at the county of Greene and State of Missouri, being then and there the keeper of, and person in charge of a certain house and building, to-wit, the apartments on the second floor of the building located at number 409' Boonville street, in the city of Springfield, in the county and State aforesaid, said building, house and apartments being at such time used as a common bawdy house and assignation house, did then and there unlawfully, willfully and feloniously permit a certain female ' under the age of eighteen years, to-wit, Leona Ferguson, of the age of fifteen years, to enter into and remain in said bawdy house and assignation house; -contrary to the form of the statute,” etc.

The trial resulted in the defendant’s conviction, and her punishment was assessed at imprisonment in the penitentiary for a term of three years. Defendant duly filed motions for new trial and in arrest of judgment, which were overruled, whereupon she appealed.

The evidence showed that the defendant was in charge of six rooms on the second floor of a building located at number 409 Boonville street, in the city of Springfield, Missouri; that she was a widow and had the care of four children, among whom was the girl, Leona, and that all occupied two of said rooms; that defendant rented two of the rooms in her charge to two women of bad character, reputed prostitutes, who received' and entertained male companions in their said rooms at unseasonable hours, and rented the remaining two rooms to two men. Defendant’s daughter, Leona, was under the age of sixteen years. It was shown by the evidence that in January, 1906, the defendant pleaded guilty in the police court to the charge of “lodging in a bawdy house,” said “house” being the rooms or apartments described in the information; that on April 24, 1906, the police arrested the defendant and the other two women who rented rooms from her, and the records of the police court, introduced in evidence, showed that the defendant and one of said women each pleaded guilty to the charge of “receiving men in room.”

There was no evidence tending to show that the character of Leona Ferguson was questionable, or that she associated with either of the two women who rented rooms from her mother, the testimony being that she was a virtuous girl, and stayed and slept in the same room with her mother, the defendant.

Testifying in her own behalf, the defendant stated that on April 25,1906, she pleaded guilty to the charge of running a bawdy house at the place described in the information, but stated that she “thought she had to,” the chief of police having told her so to do.

“Q. With what were you charged when you were arrested down there? A. Running a bawdy house, they said. -Q. That’s what you plead guilty to? A. Yes, sir. I went up next morning. I went up and plead guilty and' paid my fine — I thought I had to — and they turned around and charged me with keeping her up there.

“Q. Who told you to plead guilty? A. The chief of police. Q. Was you with a man that night you were arrested? A. No, sir. Q. Had you resorted to rooms for the purpose of having intercourse with any man? A. No, sir.”

The admission of the defendant as to “running a bawdy house” was evidently the result of a misapprehension of the facts, the records of the-police court showing that her plea of guilty was to the charge of “receiving men in room.”

Defendant admitted that the two women mentioned rented rooms from her, and paid her five dollars a week each for rooms, and that the age of her daughter, Leona, was sixteen years, but stated that the girl always' stayed and slept with her, and that she did not permit her to keep company with men.

The defendant is not represented in this court, but in her motion for .a new trial eight different grounds therefor are assigned. These are all of a general character, and, excepting perhaps the eighth paragraph, there is nothing in the motion to indicate to this court what particular error or errors the motion is leveled at, nor have we any means of ascertaining. We cannot undertake to pass on such a motion. It is asserted', however, in the eighth ground for new trial that the verdict is so at variance with the testimony as to indicate passion and prejudice on the part of the jury rendering same.

That the punishment imposed is excessive under the evidence disclosed by the record in this case, no fair-minded man will gainsay. The case as presented by the State is a very weak one, to say the least. Beyond the defendant’s plea of guilty to the charge of “lodging in a bawdy house,” some time prior to the filing of the information in this case, there was little evidence to show that she was in fact a keeper of a bawdy house.

The first instruction given in behalf of the State reads as follows: '

“Gentlemen of the jury, you are instructed that if you believe and find from the evidence that the defendant, Mary Ferguson, on the 1st day of April, 1906, or at any time within three years next before the filing of the information in this case, to-wi.t, the 21st day of May, 1906, at the county of Greene and State of Missouri, being then and there the keeper, or person in charge of a certain house, to-wit, the apartments on the second floor of the building located at number 409 Boonville street in the city of Springfield, Missouri, said house and apartments being at such time used as a common bawdy house, or house of assignation, did then and there feloniously permit a certain female under the age of eighteen years, to-wit, Leona Ferguson, to enter into, or remain in said house, then you “will find the defendant guilty as charged in the information and assess her punishment at imprisonment in the State penitentiary for a term of not less than two nor more than ten years.”

It is apparent from a careful reading of this instruction that it does not submit to the jury, as it should have done, the question as to whether the defendant was the keeper or person in charge of the house or apartments described in the instruction, nor whether said house was at the time mentioned being used as a common bawdy house, or house of assignation; but the instruction assumes such to be the facts, and it was, therefore, erroneous. The court cannot, by its instructions, assume the existence of material facts in issue, and as to which the evidence is conflicting, as by doing so it invades the province of the jury. [Railroad v. St. Louis Union Stock Yards Co., 120 Mo. 541, and cases cited.]

Por these considerations the judgment is reversed and the cause remanded.

All concur.


source: Caselaw Access Project

author: BURGESS, J.

license: Public Domain

text:
    THE STATE v. JOHN R. DUNN, Appellant.
    Division Two,
    June 8, 1909.
    1. DEADLY WEAPON: Assumed in Instruction. The instruction in assuming that “a heavy piece of wood or club” was a deadly weapon was not erroneous in view of the fact that the indictment specifically described in detail a piece of wood that was a deadly weapon per se, and the evidence shows that the deceased was killed with the identical piece of wood described in the indictment.
    2. HOMICIDE: Self-Defense: Voluntarily Entering Difficulty: Instruction. An instruction telling the jury that if “defendant voluntarily entered into the difficulty which finally resulted in the striking-and killing of said deceased, or that he voluntarily and of his own free will became engaged in such difficulty with the intention of killing or of doing some great bodily harm to said deceased, then and in that case you are not authorized to acquit defendant' on the ground of self-defense; . . . and this is true no matter how violent the defendant’s passions became or howsoever, hard he may have been pressed during the progress of the affray between himself and deceased; or how'imminent his peril might have become during the affray so brought about,” is correct, except as to faulty punctuation.
    3. INSTRUCTION: Qualifying Clause. No qualifying clause in an instruction should be disconnected from the part it is intended to modify and of which it is a component part.

      4. HOMICIDE: Self-Defense: Entering Difficulty: Limitation. The testimony showed that about an hour before the homicide defendant said to deceased, “I ought to knock ‘ your head off; but you are an old man and 1 won’t hurt you.” An intelligent little girl nine years old testified that when she first saw defendant he was throwing rocks at deceased, who was then lying fiat on the ground; that she then saw defendant take off his coat, procure a club and begin beating deceased on the head. The club was procured and blood was upon it. Defendant testified that deceased struck him five or six times in the face with his fist and made his nose bleed, but he bore no signs of this or other physical injury. Held, that the court did not err in limiting defendant’s self-defense to a voluntary entering into the difficulty, etc., but the instruction, being based on defendant’s testimony alone and that of the most flimsy and shadowy kind, was a concession to him.
    Appeal from St. Louis City Circuit Court. — Eon. Hugo Muench, Judge.
    Affirmed.

      Thomas B. Harvey for appellant.
    (1) The court erred in not permitting defendant, on cross-examination of Ida Bunting, to ask her questions regarding her testimony before the grand jury, for the purpose of impeachment. R. S. 1899, sec. 2508; State v. Thomas, 99 Mo. 235; State v. Whelehon, 102 Mo. 17; Little v. Com., 25 G-ratt. (Va.) 921; U. S. v. Smith, 47 Fed. 501; Dean v. Com., 78 S. W. 1112; Davis v. State, 122 Ga. 564; Simpson v. State, 46 Tex. 551; Morton v. State, 43 Tex. Or. 533; Clanton v. State, 13 Tex. App. 139; Bressler v. People, 117 111. 422; Com. v. Mead, 78 Mass. 167; Scott v. State, 23 Tex. App. 521; Rippey v. State, 29 Tex. App. 37. (2) The second instruction is erroneous in assuming that a “heavy piece of wood” is a deadly weapon, and in telling the jury that from its use they may infer an intent to kill, and not requiring the jury to find the fact that it is a deadly weapon. State v. Myers, 198 Mo. 264. (3) The instruction on self-defense is fatally bad in warning the jury that that defense was of no avail if defendant voluntarily entered into the quarrel, or if he brought it on with felonious purpose against the deceased, — there being no evidence as a basis for such propositions. State v. Edwards, 203 Mo. 539; State v. Smith, 125 Mo. 2; State v. Walker, 196 Mo. 85; State v. Chambers, 87 Mo. 406; State v. Herrell, 97 Mo. 105. (4) The right of self-defense is not forfeited by the mere fact that one “voluntarily entered into the difficulty,” or because “the difficulty is sought for or induced by the party’s own wilful act.” State v. Part-low, 90 Mo. 608; State v. Edwards, 203 Mo. 54; State v. Gordon, 191 Mo. 114. And even if the evidence justified an instruction on the subject of provoking or voluntarily bringing on the difficulty, the jury should have been advised what was meant by these terms. State v. Gordon, supra; State v. Edwards, 203 Mo. 542.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    (1) The court properly overruled the demurrer ‘offered by appellant at the close of the testimony in -chief by the State. The circumstances and facts proved by the State in its testimony in chief pointed strongly to appellant’s guilt, and such facts and circumstances were for the jury to pass on, and the court properly submitted them to the jury. State v. George, 113 S. W. 1118; State v. Dilts, 191 Mo. 665; State v. Miller, 191 Mo. 587; State v. Dusenberry, 112 Mo. 293; State v. Macks, 140 Mo. 656. (2) The court only excluded the cross-examination of the witness, Ida Bunting, by counsel for appellant, for the time being. Appellant did not renew a further cross-examination on the same subject. This was not error by the court. State v. Arnold, 206 Mo. 589. (3) Appellant does not indicate in the record what he expected the answer of each question asked said witness, Ida Bunting, would be, and for that reason the assignment of error cannot be reviewed by this court. State v. Arnold, 206 Mo. 597; Bank v. Aull, 80 Mo. 199; Jackson v. Hardin, 83 Mo. 175; 'State v. Martin, 124 Mo. 523; State v. Hodges, 144 Mo. 55.
   BURGESS, J.

The deféndant was prosecuted under an indictment charging him with murder in the first degree, for the killing of one John Cook, with a heavy stick or club, on the evening of January 9, 1907, in the city of St. Louis, and was convicted of murder in the second degree, and his punishment assessed at imprisonment in the penitentiary for a term of ten years. Having filed motions for new trial and in arrest of judgment, which were overruled by the courts defendant appealed.

Deceased, John Cook, who was nicknamed “Black-ie,” and the defendant were seen together, drinking, at Morische’s saloon, called the Bellevue, located at 5000 Easton avenue, in the city of St. Louis, on the afternoon of January 9, 1907, both being under the influence of liquor. Cook had been employed doing odd jobs or chores in and about the saloon, and had a “bunk” or sleeping place in a shed back of the saloon. He was about fifty years of age, his hair being slightly gray, and he weighed over 170 pounds. The defendant was past twenty-one years of age at the time of the homicide, and for some eight or nine months had been a constant frequenter of this and other saloons. On the evening in question, while the two men were drinking at a table in the saloon, the bartender heard the defendant say to deceased, “Blackie, I ought to knock your head off; you .are an old man, and I wouldn’t hurt you;” but on cross-examination, the witness explained that he did not attach any importance to the remark, as he had often heard the defendant make remarks of that character in jest, and that the defendant, after saying that, called the deceased to the bar of the saloon and they had a drink together, the defendant paying for the same. The defendant, at the time, was noticed wearing a white sweater ujsder a black coat, and had on a derby hat. About 5:15> o’clock, on said afternoon, both men were observed' leaving the saloon, and the evidence is that they proceeded to another saloon located at 1407 King’s Highway, between Wells and Ridge avenues, and kept by one Mike Francesconi. This saloon was about one and one-half blocks from the Morische saloon, and was close to an alley, on the northwest of which was a stoneyard used for the purpose of dressing stone. The defendant and deceased arrived at the Francesconi saloon about 5:20 o’clock that afternoon, ordered some drinks, the defendant paying for same, and soon .after-wards left the saloon together through the door next the alley. About 7:15 o ’clock, on said evening, the body of the deceased was found in said alley, and lying between fifty and seventy-five feet from the mouth of the alley at King’s Highway. There was much mud in the alley where the body was found. Near the head was a pool of blood, and a few feet distant was found a piece of 2 by 4 scantling, about two feet in length, with blood on it. The deceased had two deep wounds on the left side of his head, and one on the right side near the ear, from which blood was still flowing, and from which he died. The cuts were apparently done by some dull instrument, and the skull was fractured. He was dead when found. The defendant returned to the Francesconi saloon, alone, about half an hour after the time he left it in company Avith the deceased. To Dr. Heitzig, a dentist, and some others in the saloon, he showed his hands the backs of which were scratched and bleeding a little, and mentioned something about somebody “trimming” him. He then sat down at a table in the saloon, and apparently went to sleep, his head resting on his arms, and, was shortly thereafter arrested by the officers. On the way to the police station Officer Lawler asked the defendant what was the trouble between him and “Blackie,” and he answered, “Oh, Blackie tried to take a soak at me,” but refused to say anything further at that time. At the police station he explained that he and Blackie had been drinking at the Francesconi saloon, that they then started hack to the Morische saloon, and that Blaekie left him at the entrance to the “grove,” saying he was going to his bunk, and that he, defendant, then went into the Morische saloon for another drink, afterwards returning .to Francesconi’s saloon, where he was arrested. On being questioned more closely, he refused to make' any further statements, saying he wanted to consult his attorneys and see his father before talking further. His garments were taken off and examined, and on the hat, coat, sweater, pants and handkerchief so - examined was found what appeared to he fresh blood, and his outer garments and shoes had mud on them. The right hand of defendant was swollen, and a streak of blood was found on the palm, and the upper part of one of his ears was bruised and discolored. It does not appear that the defendant, before his trial, which occurred some ten months after the killing, made any statement as to how the killing occurred. The morning after the deceased was found in the alley other pieces of scantling, like to that which was found the evening before with blood thereon, were discovered in the stone yard, said pieces being used in connection with the work in the stone yard.

The only direct testimony as to. the killing, aside from that of defendant himself, was that given by Ida Bunting, a little girl, between nine and ten years of age who lived at 5025 Ridge avenue. She testified that as she was returning from an errand to a butcher shop at Easton and Academy avenues, about 5:30 o’clock on said1 evening, and while crossing a vacant lot on which was the stone yard, at the rear of Francesconi’s saloon, she saw a young man throwing stones at an old man who was lying in the mud in the alley; that thereafter the young man took off his coat and picked up a club with which he beat the old man on the head; that she observed that the young man wore something white, and that she told her mother as soon as she got home about what she saw.

Defendant testified that after he and the deceased left the Francesconi saloon, that evening, and started towards Morische’s saloon, the deceased, on reaching the gateway leading to Morisehe’s garden, left the defendant, saying, “I am going to my bunk and go to sleep;” that he, defendant, said, “I am going in to have another drink, and then I am going down to Mike’s (meaning Francesconi’s) and from there home;” that he, defendant, then went into M'orische’s saloon and took a drink, and immediately started back, on King’s Plighway, to Francesconi’s; that on leaving the Morische saloon he met a Mr. Crump, who walked with him to Wells avenue, where they parted'; that defendant said to Crump, “Before you go home, why not come down to Mike’s and have a drink with me,” but that Crump, who was in a hurry to get home, declined his invitation; that he then started towards Francesconi’s saloon, and just as he passed the foot of the alley, near the saloon door, the deceased', who was standing at the corner of the alley, said to him, “Come here, kid;” that deceased grabbed and pulled him into the alley, and they grappled and fought each other, moving back in said alley a distance of some seventy-five feet; that deceased struck him on the head and knocked him down, and as he fell down the deceased said, “Damn you, I got you now, and I will kill you;?’ that defendant picked up a club which he saw on the ground, and that about the same time deceased picked up another club and struck at the defendant and knocked off his hat; that the deceased continued to advance, and that he, defendant, struck deceased twice with his club, knocking him down, and that he then threw the club away and went into Francesconi’s saloon. He denied that he struck the deceased after he was down, and claimed that it was necessary for him to strike him as he did in order to save his life. In explanation of the blood found on his handkerchief, he stated that he was bleeding at the nose at the time he left the alley, and used the handkerchief to remove it, but there is no evidence that anybody at the saloon to which he returned noticed his nose bleeding, or that he made any reference to it.

William L. Morische, son of the saloon-keeper of that name, testified for the defendant that on the morning of the day before the killing a controversy arose in the saloon between the defendant and the deceased about drinks; that defendant accused “Blackie” of being a thief, and that “Blackie” challenged him to prove it, whereupon the two men, with Morische, went to the shed where “Blackie” slept, and there they discovered a bottle of whiskey which the defendant charged “Blackie” with stealing; that “Blackie” became very angry, and said to defendant, “I will get even with you for this — I will get you some night alone. ’ ’

Matthew Peacock, bartender in Morische’s saloon, testified that the defendant came into that saloon about seven o’clock on the evening of the killing, and drank there; but this testimony, as to the time he was in said saloon, is totally at variance with the testimony of the defendant and many other witnesses.

There was testimony that the defendant was a member of a church society, and bore a good reputation for peace and quiet, but none of the witnesses so testifying had any knowledge of defendant’s dissipated habits, as shown by his own testimony and that of other witnesses.

The record discloses that Ida Bunting, who testified as a witness for the State at the trial of this cause, was also a witness before the grand jury which preferred the indictment. A portion of her testimony upon her cross-examination by defendant’s counsel, was as follows:

“Q. You said a while ago you went home and told your mother about it? A. Yes, sir. Q. And Mrs. McLain was there, too wasn’t she? A. Yes, sir. Q. Did you tell her about it, too? A. No, sir, but she -came in that night. Q. She came in? A. Yes, sir; she was in when I told mamma. Q. Didn’t you tell them you saw the men fighting? A. No, sir. I didn’t say that. Q. You didn’t say that; and you were before the grand jury, were you? A. Yes, sir. Q. Up in a room in this building, didn’t you tell them you saw them fighting — saw the men fighting in the alley? A. No, I never saw them fighting. Q. You never saw the man at all before he was laying down on his face on the ground? A. No, sir. Q. Is that your statement, that you didn’t see him at all before he ’was lying down flat on the ground? A. He was down all the time I saw him. ’ ’

Further on, during the cross-examination of the witness, the following occurred:

“Q. You say you didn’t tell the grand jury you saw these men fighting?

“Counsel for the State objects to this testimony; objection sustained; defendant’s counsel duly excepts.

“ Q. You remember you were up before the grand jury, you said? A. Yes, sir.

“Mr. Harvey: I want to ask her if. she didn’t tell the grand jury a certain thing.

“Mr. Newton: I don’t think it is proper to go into the question of her testimony before the grand jury here.

“The Court: The objection will be sustained for the present.

“Defendant’s counsel at the time duly excepts to the ruling of the court.”

Defendant contends that the witness did not answer the question as to whether she didn’t tell the grand jury that she saw the two men fighting in the alley, but that she evaded it, and that the court erred in not requiring her to answer the question directly.

When the answer of the witness to this question is considered in the light of, and in connection with, her previous testimony, and fairly construed, it can hardly be conceded that her said answer was evasive. Counsel for defendant had previously asked her if she did not tell her mother and a Mrs. McLain that she saw the men fighting. Her answer was, “No, sir, I didn’t say that.” “Q. You didn’t say that — and you were before the grand jury, were you? A. Yes, sir.” Further on, the witness testified that she never saw the man (deceased) before she saw him lying down on his face on the ground.

If the witness, in answering the question particularly alluded to, had-stopped after saying “No,” this would have been a complete answer to the question, but after saying “No,” she inadvertently added, “I never saw them fighting.” It is plain that what the witness intended to say was that she did not, before the grand jury, nor elsewhere, state that she saw the men fighting. That this was also the view of counsel for defendant is implied from the question asked by him of the witness, in these words, “ You say you did not tell the grand jury you saw these1 men fighting?” Following this, the question was asked, “You remember you were up there before the grand1 jury, you said? A. Yes, sir.” Counsel for defendant then said to the court, “I want to ask her if she didn’t tell the grand jury a cértain thing.” To this objection was made, and sustained. What counsel intended to ask the witness was not stated by him, and the court properly sustained the objection. To hold that the answers of the witness to the questions propounded to her were not sufficiently direct to constitute a foundation for her impeachment, had it been desired to introduce testimony for that purpose, would, we think, be unwarrantable. For a child of her years, this witness was very intelligent, and her testimony throughout is clear, candid and consistent.

The second instruction given by the court reads as follows:

“The court instructs the jury that he who willfully, that is, intentionally, uses upon another at some vital part, a deadly weapon, as a heavy wooden club, must, in the absence of qualifying facts, be presumed to know that the effect is likely to be death, and, knowing this must be presumed to intend death, which is the probable and ordinary consequence of such an act, and if such deadly weapon is used without just cause or provocation, he must be presumed to do it wickedly and from a bad heart. If, therefore, the jury believe from the evidence that the defendant took the life of John Cook by striking him in a vital part with a heavy piece of wood or club, with a manifest design to use such weapon upon him, and with sufficient time to deliberate and fully form the conscious purpose to kill, and without sufficient cause, or reason, or provocation, then such killing is murder in the first degree.”

It is objected by defendant that this instruction is erroneous and prejudicial, in that it assumes that “a heavy piece of wood or club” is a deadly weapon, and that if the defendant struck and killed the deceased with a heavy piece of wood, or club, he will be presumed to have intended death.

“A deadly weapon is one likely to produce death or great bodily injury, and the manner in which it was used in the particular instance may enter into the question whether or not it was deadly. Commonly the question of what is a deadly weapon is deemed to be of law for the court, not of fact for the jury. Yet it may so far involve a fact as to be in effect for the jury; for example, where it is deadly or not according to the manner of its use.” [2 Bishop’s New Crim. Law, sec. 680.]

The indictment charges that the defendant, “with force and arms in and upon one John Cook, in the peace of the State then and there being, feloniously, willfully, deliberately, premeditatedly and of his malice aforethought, did make an assault; and that the said John R. Dunn, with a dangérous and deadly weapon, to-wit, a heavy piece of wood, of the length of twenty-two inches, of the breadth of three and one-half inches and of the thickness of one and three-quarters inches, him, the said John Cook, in, upon and about the head and body of him the said John Cook, then and there feloniously, willfully, deliberately, premeditatedly and of his malice aforethought, did strike, beat and wound, giving to the said John Cook, at the time and place aforesaid, with the dangerous and deadly weapon, to-wit, the piece of wood aforesaid, in the manner aforesaid, in and about the head and body of him, the said John Cook, several mortal wounds and fractures of the skull, of which said mortal wounds and fractures of the skull, the said John Cook, then and there, at the said city of St. Louis, instantly did die,” etc.

The evidence showed very conclusively that the deceased was killed by the defendant with the identical club described in the indictment. No one of ordinary intelligence would hesitate for a moment in concluding that the club in question, in the manner in which it was used upon the deceased, was a dangerous and deadly weapon. As was said in Hamilton v. People, 113 Ill. l. c. 38, “such things as all persons of ordinary intelligence are presumed to know are not required to be proven.” [State v. Drumm, 156 Mo. 216; State v. Shields, 110 N. C. 497; State v. West, 6 Jones’ Law (N. C.), 505; State v. Rigg, 10 Nev. l. c. 290 ; State v. Phillips, 104 N. C. 786.] The court did not err in assuming that the club in question was a dangerous and deadly weapon. Moreover, we are of the opinion that the club as described in the indictment in this case was a dangerous and deadly weapon per se.

The following portion of the court’s instruction upon self-defense is claimed to be erroneous, the features particularly objected to being in italics:

“The law of self-defense is emphatically the law of necessity, and does not imply the right of attack; nor will it avail in any case where the difficulty is sought for or induced by the party’s own willful act, or where he voluntarily and of his own free mil enters into it with the intention of killing or of doing some great bodily harm to the person so entered into controversy with, no matter how imminent the peril may become during the progress of the affray; nor will any mere words or epithets, though vile and insulting, or any threats or insults made at sometime prior thereto, justify making of an assault; and you are further instructed that no one is justified in using any more force than is necessary to get rid of an assailant or to repel an assault made upon him; nor in the use of a deadly weapon to repel an assault, unless at the time there be good cause to apprehend death or great bodily injury from such assault.
“If, therefore, you do believe and' find from all the evidence in the cáse either that the defendant voluntarily entered into the difficulty which finally resulted in the' striking and killing of said John Cook, or that he voluntarily and of his own free will became engaged in such difficulty with the intention of killing or of doing some great bodily harm to said Cook; or that after the said. Cook had been thrown to the ground and the defendant was no longer in danger of an assault or of great bodily harm at the hands of said Cook, the defendant persisted in striking, wounding and killing said Cook, then and in that ease you are not authorized to acquit the defendant on the ground of self-defense; and this is true no matter how violent the defendant’s passions became or how hard soever he may have been pressed during the progress of the affray between himself and the deceased; or how imminent his peril might have become during the affray so brought about.”

The only fault of this instruction is in its punctuation, which is not absolutely correct. In some places in the last paragraph semicolons are used instead of commas, and in one or two other places the sentence might be improved by the insertion of a comma. The meaning, however, is clear enough and it is not intimated that the jury misunderstood it.

The phrase, in the first sentence, “Nor will it avail in any case where the difficulty is sought for or induced by the party’s own willful act ” and the phrase, “Or, where he voluntarily and of his own free will-enters into it,” are both qualified by the phrase, “toith the intention of killing or of doing some great bodily harm to the person so entered into controversy toith.” [State v. Bailey, 190 Mo. l. c. 286.] In the last paragraph of the portion of the instruction quoted it will be seen that the phrase, “Either that the defendant voluntarily entered into the difficulty which finally resulted in the striking and killing of said John Cook,” and the phrase, “Or that he voluntarily and of his own free will became engaged in such difficulty,” are both qualified by the phrase, “with the intention of killing or of doing some great bodily harm to said John Cook.” [State v. Bailey, supra.]

This instruction is the law of this State, and has been since the decision known as the Partlow ease. [State v. Partlow, 90 Mo. l. c. 608; State v. Gordon, 191 Mo. l. c. 124; State v. Feeley, 194 Mo. l. c 322; State v. Vaughan, 141 Mo. l. c. 521; State v. Lewis, 118 Mo. l. c. 84; State v. Bailey, supra, and many other cases.]

The defendant insists that the instruction is fatally wrong in telling the jury that “such defense will not avail in any case where the difficulty is sought for or induced by the party’s own willful act;” and also in telling them that such defense could not be pleaded if ‘ ‘ tbe defendant voluntarily entered into the difficulty which, finally resulted in the striking and killing of said John Cook, ... no matter how imminent his peril might have become during the affray so brought about.” What we have said above is a full answer to the latter objection. The defendant, however, by quoting only a small part of the sentence, and omitting one of its essential elements, does not deal fairly with the instruction. The phrase left out is, “with the intention of killing or of doing some great bodily harm to said John Cook.” It will not do to single out for criticism one of the constituents of a sentence, without any reference to its other components, by which the first is qualified, and with which it should be connected in order to bring out the full and true meaning of the author. We have no doubt, however, that the omission :was wholly unintentional or inadvertent.

A further contention is that there was no evidence tending to show that the defendant sought the difficulty, or brought it on, and that there was, therefore, no basis for the limitation of the defendant’s right of self-defense imposed by the instruction.

The testimony of Ida Bunting is that when' she first saw the defendant he was throwing rocks at the deceased, 'who was then lying flat on the ground; that she then saw the defendant take off his coat, procure a club, and begin beating the deceased on the head. The blood and wounds on the deceased, and the blood on the club which the defendant used, as well as the defendant’s almost total freedom from physical injury, all strongly indicate that the deceased was not the aggressor, and that if there was a struggle at all, it was very onesided. The testimony shows that the defendant, about one hour before he killed the- deceased said, “Blackie, I ought to knock your head off; but you are an old man, and I wouldn’t hurt you.” Aside from the defendant’s own testimony, there was absolutely no proof that the deceased began or entered into any difficulty with the defendant, or that he used a club upon him. A police officer found some pieces of wood, resembling that used by the defendant, in the stone yard, the morning after the homicide was committed ; but these were some distance away from where the deceased was found, and none of them bore any evidence of having been used in a combat. Unlike the defendant’s club, no piece of wood so found had blood thereon. The defendant testified that the deceased struck him “five or six times” in the face with his fist, but his face bore no evidence of such pummeling, nor did he ever complain of that until the day of the trial. One witness testified that when the defendant returned to Francesconi’s saloon, he held out his hands and said something about somebody “trimming” him, and the witness noticed some slight scratches on his hands. The police officers, however, who closely examined the defendant’s person, did not notice any scratches, the only disfigurement which they saw being a bruised or discolored ear. But the defendant did not state in his testimony that this was caused by the deceased, his testimony in this regard being, “He struck me around the ear some place — which I couldn’t say — I don’t say which side of the head — I don’t know which side of the head I was struck on.” All the physical facts tend to prove that the defendant was the aggressor; that he began, entered into, and brought the hatched-up controversy to its fatal finish. Hence, the court did not err in submitting that phase of the case to the jury by the instruction in question. Indeed, the instruction on self-defense is based wholly on the defendant’s own testimony, and this the most flimsy and shadowy kind, and the giving of the instruction was a concession to the defendant.

In fact, the testimony of the defendant is very rambling, disconnected and confusing, and is evidently that of a man who was greatly embarrassed and confused while on the witness stand. Nor is it within the bounds of probability that the defendant could have had so many experiences, including his walk of two blocks with the deceased towards the Morische saloon; his drinking at said saloon; his meeting, walking and talking with his friend, Mr. Crump; his walking back in the direction of the Francesconi saloon; his meeting with and combat with the deceased in the alley — all within the short period of half an hour. Francesconi testified that the defendant returned to his saloon about half an hour after the defendant and deceased left there. Again, the defendant testified that when he and the deceased parted at the gateway leading to Morische’s garden, the deceased said, “I am going to my bunk and go to sleep,” and he (defendant) said, “I am going in to have another drink [meaning at Morische’s saloon], and then I am going to Mike’s and from there home.” According to this testimony they parted in the most amicable terms, and there was nothing said or done showing that the deceased bore the defendant any ill-will. Nevertheless, according to the defendant’s theory, the deceased must have suddenly formed the design to do him physical injury, and in order to execute such design, the deceased, instead of going to his “bunk,” retraced his steps, stopped at the corner of the alley near the Francesconi saloon, and there waited for the defendant. This, to say the least, is very improbable. It is quite plain that the homicide was committed just after the defendant and deceased left the Francesconi saloon. They left there about 5:20 o’clock that evening, and Ida Bunting testified that it was about 5:30 o’clock when she saw the assault.

The killing was cruel and wanton, and without a single palliating circumstance. Finding no reversible error in tbe record, tbe judgment is affirmed.

All concur.


text:
    THE STATE v. WARREN STANLEY, Appellant.
    Division Two,
    June 8, 1909.
    1. APPEAL: Bill of Exceptions: Extension of Time. Where the court granted defendant sixty days in which to file a hill of exceptions, and no hill was filed during that time, hut sixty-one days after the order was made the court granted further time, a bill thereafter filed cannot he considered on appeal. The court has no authority to extend the time where the time already granted has expired.
    2. -: No Bill of Exceptions: Murder. Where no bill of exceptions was timely filed, the court on appeal can consider only the record proper, and if it is in all things sufficient a judgment adjudging defendant guilty of murder in the second degree and assessing his punishment at fifty years in the penitentiary will be affirmed.
    Appeal from Dunklin Circuit Court. — Hon. J. L. Fort, Judge.
    Affirmed.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    Tbe trial court cannot extend tbe time granted a party to file his bill of exceptions after it has expired. State v. Scbucbman, 133 Mo. 115; O’Bannon v. Railroad, 10'6 Mo. App. 318; State v. Seaton, 106 Mo. 208; State v. Clark, 119 Mo. 426; State v. Simmons, 124 Mo. 446; State v. Gleason, 172 Mo. 259; State v. Zorn, 202 Mo. 45; State v. Turlington, 102 Mo. 651; State' v. Wilson, 172 Mo. 428; State v. Gregory, 178 Mo. 56; State v. Gray, 172 Mo. 485; State v. Long, 201 Mo. 664.
   BURGESS, J.

Under an information charging him with murder in the first degree, for having shot to death one F. E. Holladay, with a pistol, in the county of Dunldin, on the 15th day of May, 1904, the defendant was found guilty of murder in the second degree, and his punishment assessed at fifty years’ imprisonment in the penitentiary. After unavailing motions for new trial and in arrest of judgment, defendant appealed.

The killing occurred in a baseball park, at 0.cta, in Dunklin county, on a Sunday afternoon. The deceased, with one Zenath Cook and several others, was upon the baseball ground about 2 p. m., presumably for the purpose of witnessing the ball game, which had not yet commenced. Cook and the deceased were sitting down', engaged at the time in reading a letter, when the defendant approached, raised Cook’s hat, applied to him an ugly epithet, and said, “What have you got to do with it?” and at the same time struck Cook over the left eye with brass knucks which he had on his hand. The defendant then drew a pistol from his hip pocket, and about the same time the deceased, who was still sitting, struck at defendant with a baseball bat, but it is not clear from the evidence that the bat struck him. After striking at the defendant, the deceased turned and began crawling “on all-fours” away from the defendant, who immediately began shooting. The defendant fired several shots, and the evidence shows that the second shot from defendant’s pistol struck the deceased, who died'from the wound two hours later. The bullet that killed the deceased entered his body two inches to the left of the spinal column,, between the ninth and tenth ribs, and was found two inches to the right of the right nipple. The physician who examined the wound testified that the course of the hall made it plain that the deceased was shot while down or in a stooping posture. The deceased was unarmed at the time. It also appears from the evidence that on the day preceding the killing Ralph Stanley, a brother of the defendant, and the deceased had a difficulty, and that the deceased knocked the former down; that the deceased then offered to shake hands, whereupon Ralph Stanley said, “No, I will see you again; I don’t know whether or not I will be able to see you to-morrow, but I will send my big brother.” Ralph Stanley testified that he told his brother, the defendant, about this difficulty the morning of the day the killing occurred.

The court allowed several extensions of the time for filing a bill of exceptions in this case. "We find from the record that on July 24, 1906, the time for filing' the bill was by the court extended to the third day of the November term, 1906, of said court, which third day was the fourteenth day of November. Thereafter, the court made an order extending the time for filing the bill' sixty days from the expiration of the time theretofore granted for filing the same; but it is shown by the record that the next order granting a further extension of time was not made until the 14th day of January, 1907; so that, by computing the time from the 14th day of November, 1906, to the 14th day of January, 1907, it will be readily seen that sixty-one days, or one day more than the time allowed, had elapsed between the last and the immediately preceding order of the court in this regard, and any further extension of time for filing the bill, after the sixty days previously allowed had expired, availed the defendant nothing. [State v. Simmons, 124 Mo. l. c. 446.]

As we hold that no bill of exceptions “was filed in this case within the time allowed by the court, there is, therefore, nothing before this court for review except the record proper. The defendant is not represented in this court, hut as is our duty to do, we have carefully examined the record proper, and find it free from error. The information is in due form, as well also as all subsequent proceedings which go to make up the record proper. The murder of which the defendant was convicted was committed with more than the usual degree of brutality, was without excuse, or even a mitigating circumstance. The judgment should he affirmed. It is so ordered.

All concur.


author: GANTT, P. J.

text:
    THE STATE v. CLARENCE ROAN, Appellant.
    Division Two,
    June 29, 1909.
    BILL OF EXCEPTIONS: No Motion for New Trial. Where what purports to be a hill of exceptions does not contain, or call for, the motions for a new trial and in arrest, of judgment, and -does not contain any exceptions to the overruling of those motions, there is nothing for the Supreme Court to review except the record proper; and in such case, if the information is sufficient, and the arraignment, the verdict and sentence are in due and proper form, the judgment will he affirmed.
    Appeal from Madison Circuit Court. — Hon. Chas. A. Killian, Judge.
    Affirmed.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    (1) "What purports to he the hill of exceptions in this cause does not contain the motions for a new trial or in arrest of judgment, nor any exceptions to the overruling of the same. There is nothing for this court to review, except the record proper, and the judgment should be affirmed. State v. Finley, 193 Mo. 202; State v. Penland, 199 Mo. 152; State v. Miller, 189 Mo. 673. (2) There is nothing before this court except the record proper, and no error appearing therein, the judgment should be affirmed. State v. Nicholas, 193 Mo. 214; State v. Sparks, 191 Mo. 162.

      Jasper N. Burks and Marbury & Hensley for appellant in reply.
    When defendant’s case was called, both the State and defendant announced ready for trial; and the sheriff was ordered to summon a sufficient number of men, which he did; and after a panel of forty was-qualified upon their examination, the clerk delivered to the prosecuting attorney the list of said jury. The representatives of the State kept the list, without turning it over to the representatives of defendant, until the expiration of the twenty-four hours, whereupon the State by its prosecuting attorney dismissed the information against defendant without stating any cause whatsoever; and it was charged then and there by the representatives of defendant, in open court and afterward in their motion for a new trial, that the State dismissed the information against defendant for the sole purpose of getting rid of that jury, the personnel of which they did not like, and were afraid to submit the cause to any twelve that might be chosen therefrom. The prosecuting attorney immediately filed a verbatim copy of the information theretofore just dismissed, and announced ready for trial and insisted that all the witnesses were present and it would be too expensive to continue the cause by reason of the said alleged information having just been filed. Defendant was in jail, without money and without friends; his witnesses were present, and he was reluctantly forced, also, to announce ready for trial. The case went to trial and resulted in a verdict of guilty of murder in the second degree, and defendant’s punishment was fixed at fifteen years in the penitentiary. Thereafter defendant filed his motion for new trial and his motion in arrest of judgment, both of said motions being filed on the day the verdict was rendered. The court, by its order of record, granted defendant permission to perfect his appeal as a poor person and at the cost.of the State, and directed the circuit clerk to cause to be made the proper bill of exceptions. The official stenographer was directed to prepare the transcript within a certain time. The attorneys for defendant reside in Farmington. From the day the aforesaid order was made until this hour there was not presented to either of the attorneys for defendant the transcript of the testimony nor the bill of exceptions for them or either of them to look over and agree to, but whatever may have been prepared was prepared by the stenographer of the circuit court without any knowledge or information of defendant or his attorneys. Defendant’s attorneys do not know the condition of the bill of exceptions now on file with the clerk of the Supreme Court, but are advised by the clerk of the circuit court of Madison county and by the brief of the Attorney-General that the bill of exceptions does not show defendant’s motion for a new trial. Defendant, by his attorneys, have filed with the clerk of this court his motion suggesting the diminution of the record in this cause and ask for a rule upon the circuit clerk directing him to certify to this court a true and correct record, and now respectfully insists that said motion be granted. If it be true that certain technical prerequisites to a perfect and sufficient bill of exceptions are lacking and cannot be supplied by order of this court, then defendant must humbly submit to the ruling of this court and serve his term of fifteen years in the penitentiary; believing, however, that had a proper bill of exceptions been prepared as directed by the circuit court and submitted to his attorneys thip court would reverse and remand Ms cause for another trial. If it is within the sound discretion of this court, however imperfect the bill of exceptions may be shown to be, to consider this one point, we urgently but respectively request them to do so, and that is this: That the trial court erred in overruling defendant’s motion for a new trial, for the reason that no venue was proven. The venue must be proven by direct or circumstantial evidence. We challenge the Attorney-General to find, by direct or circumstantial evidence, one scintilla of evidence relating to the venue of this case. The venue m criminal cases must be proven either by direct or circumstantial evidence; and the failure to prove the venue is fatal for the reason that the court cannot take jurisdiction of the case unless the venue is proven. State v. King, 111 Mo. 577; State v. McGinnis, 74 Mo. 245; State v. Hartnett, 75 Mo. 251; State v. Hughes, 82 Mo. 86; State v. Burgess, 75 Mo. 541.
   GANTT, P. J.

On the 10th day of July, 1907, the prosecuting attorney of Madison county filed an information in the circuit court of said county, duly verified, wherein he charged the defendant with murder in the first degree of one Walter Stites on October 24, 1906. The defendant was duly arraigned and entered a plea of not guilty, and was afterwards tried and found guilty by a jury, of murder in the second degree, and Ms punishment assessed at fifteen years in the penitentiary. After ineffectual motions for new trial and in arrest of judgment, he has brought the case to this court by appeal.

The information in the case is sufficient in form and substance and such as has been approved by this court, and it is unnecessary therefore to set it forth at length M this opinion. What purports to be the bill of exceptions in this cause does not contain or call for the motions for a new trial and in arrest of judgment, nor any exceptions to the overruling of the same. There is nothing for this court to review except the record proper, and as the information is sufficient and the arraignment, the verdict and sentence are all in due and regular form, the judgment must be and is affirmed.

Burgess and Fox, JJ., concur.


author: FOX, J.

text:
    THE STATE v. LEO JUDD, Appellant.
    Division Two,
    June 29, 1909.
    1. VOTER: Registration: Information: Contradictory. An information charging that the defendant, Leo Judd, feloniously did sign the election registration book under the name of Chas. Cohn by writing on said book the words and name Chas. Cohen, contains repugnant and inconsistent charges, and is bad.
    2. -: -: -: -: Names: Idem Sonans. The name which an applicant for registration as a voter signs to the register is the name by which he asserts his right to vote, and an information which states that he signed the name of Chas. Cohen, after charging that he applied to vote in the name of Chas. Cohn, is contradictory on its face, and does not show a prima-facie lawful registration, or facts which would amount to a lawful registration. The doctrine of idem, sonans has no application to such a case.
    3. -: -: -: Signature. An information, charging a false registration by a voter, should contain an allegation that the applicant signed his name on one of the registers. Such an allegation is material, under the statute.
    4. -: -: -: -: No Evidence. Where the information charges that defendant Leo Judd applied to register as a voter in the name of Chas. Cohn and wrote the name of Chas. Cohen on the register, and there is no evidence that defendant signed Chas. Cohen on any of the registration books, but the State’s evidence is that, one of the judges of election wrote said name on the duplicate book, a judgment of conviction cannot stand; for the State cannot contradict the material allegation that it was the defendant who wrote the name Chas. Cohen on the book.

      Appeal front St. Louis City Circuit Court. — Hon. Geo. H. Williams, Judge.
    Reversed and remanded.

      C. Orrick Bishop for appellant.
    (1) The information proceeds to allege that the said Leo Judd then and there unlawfully, feloniously, etc., did sign said registers and books of registration “in the margin on said books, provided for the signatures of registered electors and voters, under the same name Chas. Cohn, by writing on said books the words and name Chas. Cohen.” Wherefore the information is repugnant in that it charges a registration under one name and the writing upon the books of a different name; for it will hardly be claimed that Cohn and Cohen are the same name. The doctrine of idem sonans has no application in a case of this kind. The name signed by thé applicant upon the book is the name he claims as his, by right of which he exercises the right of voting, and presumably the name announced to the officers of registration. It would hardly be consistent to allege that a defendant requested and required to be registered under the name of Thompson when he writes his name on the book as Tompkins. The demurrer to the information should have been sustained upon this ground alone; but the information is defective and insufficient for the reason that it fails to charge all the essential elements of the offense created by the statute. State v. Keating, 202 Mo. 205. (2) The demurrer to the evidence should have been sustained for the reasons: 1. There was absolutely no evidence that the appellant ever signed the name Chas. Cohen upon any book whatever. 2. The only official book, or official record, identified and sworn to by the custodian of such books and records, Mr. Elspermann, the Secretary of the Board of Election Commissioners, was the hook designated as “Original Registration Book, 4th Ward, 6th Precinct,” and there is no evidence in the case that the name Chas. Cohen appears upon that hook, at anyplace. 3. The only place where the name Cohen appears to have been written was on what was called the duplicate registration book, and there it was written by one of the judges, and not by the appellant, as the duplicate book (so-called) was not signed by the applicant, and there was no evidence that the so-called duplicate was an official register or a record of the Election Commissioners’ office.

      Herbert S. Hadley, Attorney-General, F. G. Ferris, Assistant Attorney-General, and Elliott W. Major, Attorney-General, for the State.
    (1) There is nothing for review in this case except the record proper. The motion for a new trial was overruled on the 24th day of April during the April term of the circuit court. Defendant’s bill of exceptions was filed on the 25th. day of June, at the June term of said court. The record proper contains no entry of record made at the April term, giving defendant time beyond said term within which to file his bill of exceptions. The bill of exceptions, in order to be considered on appeal, must be filed during the term at which the motion for a new trial was overruled, or within such time as, by leave entered of record at that term, is given appellant in which to file his bill. R. S. 1899, sec. 728; State v. Goehler, 193 Mo. 177. If there was an order extending the time, such' order must be shown in the record proper. A recital in the bill of exceptions itself is not sufficient. Hill v. Butler Co., 195 Mo. 511. (2) The information is based on section 2120j of the Act of March 24, 1903. It is sufficient, as it follows the language of the statute, and sets forth all the facts necessary to constitute the offense charged. Laws 1903, p. 159, sec. 2120j; Laws 1903, p. 177, sec. 11; State v. Keating, 202 Mo. 197. The case at bar is based on that clause of said section 2120j, which makes it a crime for any person to “register . . . under any name not his own.” The allegations in the information specifically bring defendant within these material words of the statute, and thus supply what was lacking in the information held to be insufficient in said Keating case. The Keating case was- based on that clause of said section 2120], which makes it a crime for any person to “fraudulently register ... in any election precinct not having a lawful right to register therein,” and the information in that case was held to be insufficient, because its allegations did not specifically bring the defendant within those material words, and particularly because the word “election” was omitted from th,e allegation as to the precinct.
   FOX, J.

At the June term, 1906, of the circuit court of the city of St. Louis, the circuit attorney lodged in said court his information against the appellant, which, omitting the formal parts, is as follows:

“That on the twenty-first day of September, in the year of our Lord one thousand nine hundred and four, there was held in the said city of St. Louis, and in each ward and precinct of said city, a general registration of electors and voters under and pursuant to the laws of the State of Missouri (the said city of St. Louis being then and there a city having more than three hundred thousand inhabitants), and that Leo Judd, late of the city of St. Louis, on the said twenty-first day of September, one thousand nine hundred and four, at the city of St. Louis, and in the sixth election precinct of the fourth ward of said city of St. Louis, at the place of registration of said sixth election precinct of said fourth ward of said city of St. Louis, at number 1122 Locust street, and before the judges and clerks and officers of registration of said sixth election precinct of said fourth ward of said city of St. Louis, unlawfully, feloniously, willfully, knowingly, falsely and fraudulently did' then and there register under a name not his own, to-wit, under the name of Ohas. Oohn, and then and there unlawfully, feloniously, willfully, knowingly, falsely and fraudulently pretended and represented to said judges, clerks and officers of registration of said sixth election precinct of the fourth ward of said city of St. Louis that his name was Ohas. Cohn, and that he was entitled to register and be registered on the books of registration and registers of said election precinct, as a qualified voter and elector of said: election precinct under said name of Ohas. Oohn, and requested and required that said judges, clerks and officers of registration of said election precinct enter, write and register the name of him, the said Leo Judd, on said registers and books of registration of said election precinct as Chas. Cohn, and as a resident and qualified voter and elector of said election precinct entitled to register and vote in said election precinct as Ohas. Cohn, he, the said Leo Judd, then and there well knowing that his name was not Ohas. Oohn; and the said judges, clerks and officers of registration of said sixth election precinct of the fourth ward of said city of St. Louis, then and there did enter and write upon the registers and. books of registration of said election precinct the said name of Chas. Oohn as and for the name of him, the said Leo Judd, as a resident and qualified voter and elector of said election precinct, and he, the said Leo Judd, then and there unlawfully, feloniously, willfully, knowingly, falsely and fraudulently did sign said registers and books of registration of said election precinct in the margin on said books provided for the signatures of registered electors and voters, under the same name, Chas. Oohn, by writing on said books the words and name CHAS. COHEN. And so the said Leo Jndd at the said city of St. Louis, on the said twenty-first day of September, one thousand nine hundred and four, in the manner and form and by the means aforesaid, unlawfully, feloniously, willfully, knowingly, falsely and fraudulently did register under the name not his own; contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the State.”

A number of continuances were granted, all except one being at the instance of the court. At the February term, 1908, the defendant filed his demurrer to the information, which was overruled and he was duly arraigned and entered his plea of not guilty, and was put upon his trial and convicted and his punishment assessed at two years imprisonment in the penitentiary. Motions for new trial and in arrest of judgment were duly filed and overruled and leave given the defendant to file a bill of exceptions, which was duly filed on the 25th of June, 1908. The evidence for the State tended to prove that on the 21st ©f September, 1904, there was held in the city of St. Louis and in each ward and election precinct of said city, a general registration of electors and voters under and pursuant to the laws of the State of Missouri. And that said registration in and for the sixth election precinct of the fourth ward of said city, in charge of and conducted by judges and clerks of election duly appointed, commissioned, qualified and acting, was had and held at number 1122 Locust street in said election precinct, said number 1122 Locust street was a room about 14 by 16 feet in size in a dwelling house. The said election judges and clerks for said precinct had the registration books of said precinct upon a table in said room, and there voters would register as they appeared and applied for registration, . Each applicant for registration was. required to give under oath, to said registration officer, certain information' about himself, such as name, age, residence, nativity, length of residence in the city, and State, which information together with the. date for application for registration was duly entered by election officers in the original registration book and in a copy thereof and also in the primary election registration book. The applicant for registration having given satisfactory information to the officers, was required to sign his name on the numbered line containing such information about himself and thereupon his name was marked upon the registration books as a duly registered voter. • On that day the defendant appeared before the said registration officer and applied for registration and was sworn. On being asked his name he replied that his name was Chas. Cohn. He answered the required questions and signed his name Chas. Cohn to the registration book, completing the matter of his registration under that name in due form. After he had gone out of the room, it was suggested by one of the registration officers that he had registered there under another name on the same day. Discussion was had on the subject and also as to the spelling of the name ‘ Cohn, ’ ’ which caused the election officers to remember the instance of his registering as Chas. Cohn.' The original registration book of the fourth ward, sixth precinct, was identified as an official record of the registration entries, but the name of Chas Cohen nowhere appears on that book. The only place where the name Cohen appears is in the duplicate registration book and that was signed by one of the judges and not by defendant.

It was shown by Gus. V. R. Meehin, an expert in handwriting, that the signature Leo Judd on the registration book was written by the same person who wrote the signature Chas. Cohn and Chas. Cohen on the registration books. These signatures were submitted to the jury for inspection and comparison. On the other hand, the defendant introduced a witness, Mr. J. M. Trenley, an expert in handwriting, who testified that the signature Chas. Cohn on the registration book was not written by the same party who wrote the signature Leo Judd on the registration book, hut he thought that the signature Leo Judd on the registration hook was the same as the signature of the defendant to the papers he filed in this suit. Defendant did not take the witness stand in his own behalf.

Two things out of the ordinary appear in this record: first, that though the offense is alleged to have been committed September 21, 1904, the information was not lodged until October 4, 1906, and then the cause was continued six times by the court of it's own motion. This long delay in preferring the information and in bringing the cause to trial accounts, in a large measure, for the exceedingly indefinite and uncertain memory of the witnesses as to the actual occurrences in connection with the alleged fraudulent registration. It will he observed that the information charges the defendant with feloniously registering under the name not his own, to-wit, the name of Chas. Cohn, in violation of what is known as section 2120j of the Acts of March 24th, Laws of 1903, page 159; sections 10, 11, Laws of 1903, page 177. Sections 10 and 11 of the Act of March 28th, 1903, prescribe the method and manner of registering qualified voters in cities having three hundred thousand inhabitants or over. Section 10 provides that under the column “signature” in one of the registers, the applicant shall write his name, and if he is unable to write he shall make his mark after his name is written for him, and his signature shall he witnessed by one of the judges. Section 11 provides that to every applicant shall he administered an oath to answer all such questions as shall he put to him touching his placg .of residence, name, place of birth, age, occupation, qualification as elector and his right to register. And provides that the name of every applicant shall be entered into such register books and all the facts shall be therein stated whether the applicant is entitled to vote or not.

The point is made by the defendant in this case that the information is bad on its face, for the reason that it charges that the defendant unlawfully and feloniously, etc., did then and there register under the name of Chas. Cohn and unlawfully and feloniously pretended to the election officers that his name was Chas. Cohn and that he was entitled to register under the name of Chas. Cohn, and that he requested the judges, etc., to enter, write, and register the name of him the said Leo Judd on said registration books as Chas. Cohn, and that the said judges and clerks then and there did enter and write upon the register and book of registration the said name of Chas. Cohn as and for the name of him the said Leo Judd as a resident and qualified voter and elector of said election precinct. And then proceeds to charge that the defendant Leo Judd feloniously did sign such registers and books of registration under the same name Chas. Cohn by Writing on said books the words and name Chas. Cohen, and thus it is insisted that the allegations of the information are repugnant to each other, in that they charge a registration under one name and the writing upon the books of another and different name.

In State v. Keating, 202 Mo. 197, this court had occasion to determine the averments that were necessary to charge an offense under section 2120j, Laws 1903, page 158, and it was held that it was not enough to merely allege that the defendant “fraudulently registered,” but it was essential that the pleader should designate the acts done by the accused in and about his registration which resulted in a fraudulent registration of him hy the registration officers. In so doing we cited and approved the opinion in United States v. McCabe et al., 58 Fed. 557.

In this case the pleader has evidently attempted to follow the Keating case, and in his opinion, it is essential to a lawful registration under the Act of March 28, 1903, providing for registration and elections in cities and towns of three hundred thousand inhabitants or over, that, after the registration officers have administered the oath of an applicant for registration and filled out the various blanks specified in section 10 of said act according to his answers, the applicant shall write his name under the column headed “signature,” in one of the registers, and if he cannot write his name, he shall make his mark after his name is 'written for him, and his signature shall he witnessed hy one of the judges, and we concur in this view. We are of the opinion that the Legislature provided for the signature of the applicant as a means of identification and as a guaranty of the truth of his answers, touching his right to vote, to the officers. We can see no reason why this is not as material as any other provision in this section, and this being so the circuit attorney properly deemed it necessary to allege that the defendant did sign said registration hooks, on the margin thereof, hut when he came to make that averment, after alleging the defendant had answered that hi's name was Chas. Cohn and the judges had entered and written his name in said register as Chas. Cohn, he proceeds to charge and allege that defendant unlawfully and feloniously did sign said registers and hooks of registration hy writing the name of Chas. Cohen; in other words, it charges a registration under one name and a signature of an entirely different name, that is to say, the allegations of the information are repugnant in material matters. The doctrine of idem sonans has no place in the case. The name which an applicant signs to the register is the name by which he asserts his right to vote and an information which shows he signed one name, after stating he bore another name, is contradictory on its face and does not show a prima-facie lawful registration, or facts which would ¿mount to a lawful registration. We think the demurrer should have been sustained, but the objection being a fatal one is available on appeal.

2. But there is another reason why the judgment must be reversed. The State of course is bound by the allegation of the material matter of the signature of the registration book by defendant under the name of Cohen and yet the State’s own witnesses negative any signing of said name by defendant. There was absolutely no evidence that defendant signed Chas. Cohen on any one of said books, but said name was signed by one of the. judges. As this was.the fraudulent act upon which the guilt of defendant was predicated and as there was a total failure of proof thereof, the judgment cannot stand.

As the judgment must be reversed for the errors noted, it may be well to remark that if the judges noted the registration of the defendant under two names on the very day it is alleged he was so fraudulently registered, it is passing strange that not only was no such charge made to him or to his knowledge until two long years had elapsed and defendant left free to cast illegal ballots during all that time, and when, after two years, the charge was preferred that it was allowed to slumber.two more years before he was brought to trial and by that time the memories of the witnesses had become so treacherous that, one cannot place much reliance on their recollection of material facts. It is exceedingly significant that one expert testified 'that the names Leo Judd, Chas. Cohn and Chas. Cohen were all written by one and the same person when the State’s own witnesses disprove that defendant signed the name Chas. Cohen.

For the errors noted the judgment will he reversed and the cause remanded in order that the circuit attorney, if so advised, may prefer another information.

All concur.