author: FOX, J.

text:
    THE STATE v. SOLOMON WILSON, Appellant.
    Division Two,
    February 12, 1910.
    1. BURGLARY: Information: Removing Screen: Second Degree. An information which does not charge in the terms of the statute any of the modes of breaking and entering specified in section 1880, ¡Revised Statutes 1899,' but simply alleges the forcible removing of a wire screen of an outer window of said dwelling-house, does not charge burglary in the first degree, but burglary in the second degree; and hence, evidence that defendant was found in the dwelling-house and that a screen had been removed, establishes burglary in the second degree.
    2. -: Evidence of Higher Offense: Conviction of Lower Degree. Even if it be conceded that the evidence tends to establish the offense of burglary in the first degree, it is very questionable whether defendant can complain that he was convicted of burglary in the second degree.
    3. -: Larceny: Request for Separate Instructions. Where the evidence clearly showed that defendant was guilty of both burglary and larceny, or not guilty of either, defendant cannot convict the trial court of error in failing to give an instruction • telling the jury that they might find him guilty of one offense and acquit him of the other, by simply objecting and excepting to the failure of the court to instruct upon all questions of law arising in the case. He should go further and indicate in some way the subjects the court has failed to cover by the instructions.
    4'. -: Entering By Window: Open Doors. If defendant entered the dwelling-house by removing a window screen, he was guilty of burglary, and it makes no difference whether the doors were open or unfastened.

      5. -: Weight of Testimony. Where the verdict of guilty of burglary and larceny is supported hy substantial evidence and is approved hy the trial court, the Supreme Court will not interfere, however conflicting the testimony may he.
    Appeal from Clinton Circuit Court . — Hon. A. D. Burnes, Judge.
    Affirmed.

      Frost & Frost for appellant.
    (1) The verdict was the result of passion and prejudice on the part of the jury. The defendant was a negro and had been convicted of petit larceny when he was ten years of age. The identification was hy a dim lamp, light turned down half way, and during a hurried scuffle. Mrs. Daniel, one of the two identification witnesses, identified him because of a family resemblance between him and his mother and sister. In face of the poor opportunity for identification by the witnesses for the State, 23 witnesses testified to an alibi on the part of the defendant, who knew him and had every opportunity to observe, and stated that he went to and was at St. Joseph, at the time of the alleged burglary, and no jury was authorized to disregard such a mass of testimony, and because of their prejudice and passion find a verdict against an accused man. (2) The evidence tended to prove (if there had been evidence of breaking) a burglary in a dwelling-house in which there was at the time a human being and with intent to commit a larceny therein. This constituted burglary in the first degree. Revised Statutes 1899, section 1880. And as burglary in the first and second degree are separate and distinct offenses, one cannot be found guilty of burglary in the second degree where evidence goes to prove burglary in the first degree. State v. Alexander, 56 Mo. 131. (3) There is absolutely no proof whatever, inferentially or otherwise, that a burglary was committed. The prosecuting witness it seems purposely refrained from saying the doors were closed that night, that is tho outer doors, and there is no proof whatever that they were closed that night. The alleged crime was in the heat of summer time; and the courts will certainly not indulge the presumption that they were closed, in order that the State’s conviction may he upheld. The breaking out certainly did not constitute burglary. One who enters a house through an open door or window is not guilty of burglary, and where there was no evidence that the outer door was closed, the proof of burglary fails. There is absolutely no proof of the corpus delicti. State v. Kennedy, 16 Mo. App. 287; Loudar v. State, 63 Ala. 143; Williams v. State, 52 Ga. 580; Green v. State, 68 Ala. 539; State v. Warford, 106 Mo. 55. The elements constituting the corp%is de-licti in the crime of burglary are a forceable breaking, and entry, and with intent to steal or commit a felony. The corpus delicti must be proven in every case before a conviction can be sustained. State v. Knolle, 90 Mo. App. 230; State v. Jones, 106 Mo. 312; Wigmore on Evidence, sec. 2072; State v. Henderson, 186 Mo. 483. What right has a jury to say that the person who entered the house of the prosecuting witness did not do so through an open door, as there is not one syllable of evidence that the door was closed? (4) While burglary and larceny may be charged in the same count of the information, they are distinct offenses. State v. Martin, 79 Mo. 34; State v. Owens, 79 Mo. 625. Where larceny is committed in perpetration of burglary, value of goods need not be stated, as it is immaterial, but unless the defendant is found guilty of the burglary the value of the goods must be stated, and if larceny is proven it is petit or grand according to the value of the goods taken. State v. Davis, 73 Mo. 131; State v. Beckworth, 66 Mo. 82. Larceny in dwelling house it is true is grand without regard to value taken. State v. Kennedy, 66 Mo. 343. Yet the punishment for sneh larceny is regulated by the amount stolen, and when the value of the property amounts to less than thirty dollars, punishment may he as low as one day in county jail. There being no proof of burglary the court’s instruction and the jury’s verdict are erroneous. R. S. 1899, sec. 1900, 1901; State v. Brinkley, 148 Mo. 37; State v. Barker, 64 Mo. 282. It was then the duty of the court to have informed the jury that they might find the defendant guilty of burglary and not of larceny, or that they might find him guilty of both, or that they might find him not guilty as to the burglary and guilty as to larceny, in which latter case the court should have further instructed as to the different grades of punishment for larceny in dwelling house. State v. Nicholas, 222 M'o. 425. The defendant called the court’s attention to the fact that it had not instructed on all points of law in the case. State v. Brinkley, 146 Mo. 37.

      Elliott W. Major, Attorney-General, and Charles Q. Revelle, Assistant Attorney-General, for the State.
    (1) The distinction between burglary in the first and second degree, as created by sections 1880- and 1881, R. S. 1899, does not depend solely upon the question as to whether there was in the dwelling-house a human being. The degree also depends upon the manner in which the breaking and entering is accomplished. If “by forcibly bursting or breaking the wall or outer door, window or shutter of a window, or the lock or bolt of such door, or the fastening of such window or shutter, or by being armed with some dangerous weapon, or with the aid and assistance of confederates, actually present, aiding and assisting, or by unlocking an outer door by means of a false key or picking the lock,” it is burglary in the first degree. To make out an offense under this section, it is just as necessary to prove that the breaking was accomplished by one of the modes specified in this section, as that it was in the nighttime or that there was a human being in the house. State v. Tutt, 63 Mo. 600; R. S. 1899', sec. 1880. Without proof of one of the modes specified, the offense is but burglary in the second degree. R. S. 1899, sec. 1881. The evidence in this case discloses that the breaking was not effected by any of the modes specified in section 1880, but by removing a wire screen from the window, (b) But let it be conceded that the evidence does tend to establish the offense of burglary in the first degree, defendant cannot complain at his conviction of the lesser crime. The prosecuting power may select for conviction any one of the offenses of which his acts make defendant guilty, and he cannot object that his guilt covers a larger and different crime. Since the case of State v. Harney, 168 Mo. 200, this rule has been uniformly applied in this State, and in fact, was recognized in cases of this character long prior to that time. State v. Keeland, 90 Mo. 337; State v. Wagner, 78 Mo. 644; State v. Smith, 190 Mo. 718; State v. Bobbitt, 215 Mo. 8; State v. Schieller, 130 Mo. 510; State v. Lowe, 93 Mo. 574; Sec. 2369, R. S. 1899; R. S. 1899, sec. 2535. (2) The court cannot disturb the verdict on the ground of insufficiency of evidence unless a new rule is to be established in this State. State v. Matthews, 202 Mo. 147; State v. McCullough, 171 Mo. 574; State v. Tetrick, 199 Mo. 100; State v. DeWitt, 152 Mo. 76. There is substantial evidence tending to prove a breaking. State v. Moore, 117 Mo. 403; State v. Henderson, 212 Mo. 208. (3) The only serious question presented by this record is whether the court erred in not instructing the jury that defendant could be convicted of the crime of larceny alone. The offense charged in the information, and upon which defendant was tried and convicted, was that of burglary and larceny. If the eases of State v. Hecox, 83 Mo. 531, and State v. Brinkley, 146 Mo. 37, correctly declare tlie law in this respect, the instruction on larceny and its degrees should have been given. In our opinion, however, defendant is in no position to complain, since he in no manner directed the attention of the trial court to this phase of the case, or requested an instruction touching it. State v. Espenschied, 212 Mo. 222. The point is not more definite in the motion for a new trial, and is entirely too indefinite to he available in this court. It is a firmly established rule in this State that when the instructions of the court are read to the jury, and the defendant desires further instructions, or deems it necessary that such he given, it is his duty, in fairness to the court, to call its attention to such questions and specifically request such instructions. State v. Bond, 191 Mo. 555 ; State v. McCarver, 194 Mo. 742; State v. West, 202 Mo. 137.
   FOX, J.

The defendant has brought this cause to the Supreme Court by appeal from a judgment of the circuit court of Clinton county, Missouri, convicting him of the offense of burglary and larceny.

On August 28, 1907, the prosecuting attorney of Clinton county filed an information, which was duly verified, charging the defendant with the crime of burglary and larceny. Following this there were three trials, in each of which the jury was. unable to agree. The trial which resulted in the judgment now before the court for consideration was the fourth trial. The testimony developed upon the trial was substantially as follows:

On the part of the State, Dr. Oourtwright testified that on Tuesday night, between one and two o’clock, August 6, upon being aroused by a noise in his sleeping- room, he saw a man crouched at the dresser, and immediately jumped from his bed toward the burglar, who thereupon ran into another room, where all the windows were screened. From this room he ran into the sitting room, where a bright light was burning. When he reached this room, he and witness met and a struggle between the two followed, during the course of which they fell to the floor several times. The burglar finally forced his way into another room, where a window was open, the screen having been theretofore removed, and through this window made his escape. The screen had been removed from the window before the struggle, and sometime after ten o ’clock that night, the hour when Dr. Courtwright and his family retired, and was found soon after the commission of the crime, standing at the side of the window. After the burglar made his escape, it was found that he had taken a pair of trousers, two dollars and seventy cents in cash, and two pocket knives. The trousers, pocket knives and one silver dollar were found the next morning in the yard. During the scuffle the burglar lost his hat, and this was found in the house. The hat was of soft material and light color.

The burglar was identified as being Solomon Wilson, the defendant in this cause, by both Dr. Court-wright and his mother-in-law, Mrs. Daniels, who entered the room while the struggle was in progress. They were well acquainted with defendant, having known him for a number of years, and were positive in their identification of him as the person who entered the house. The light-colored hat found in the house was definitely identified by the night watchman of Lathrop as the hat of defendant, and one which he had worn for several months. The hat was also recognized by Dr. Courtwright, William Anderson, Miss Ballew, Mr. Welch, Dick Weir and J. Bickle, as looking “exactly like” the light-colored hat which they had seen defendant wear immediately prior to the commission of this crime.

On the part of defendant, the testimony tended to prove that on the afternoon of August 6th, at about three or four o ’clock, defendant and four other colored hoys, left the town of Lathrop, and by means of a freight train went to Cameron Junction, arriving there at about 4:45 p. m. At that place they made connections with a freight train hound for St. Joseph, and on it rode in a box car to Stewartsville, where they separated, defendant and one other colored hoy getting into a car different from the one in which the remainder had located a free berth. In this manner they continued their travel to St. Joseph, reaching there at about 7:30 p. m. Defendant and his companion went directly to the home of a friend, where they remained all night. The colored people of St. Joseph were giving a picnic, and the defendant found occasion to remain there until August 9th, at which time he returned to Lathrop, and was placed under arrest.

Defendant denied that the hat which was found in the house on the night of the crime, was his, or that he had worn a hat of similar description at any time within two years preceding the commission of the crime. He also denied that he entered the house and stole the property, hut contended that he was in St. Joseph on the night in question. The evidence also tended to prove that on-the night when the crime was committed, a strange negro, wearing a light-colored, soft hat, was seen in the town of Lathrop.

At the close of the evidence the court instructed the jury. We do not deem it essential to reproduce the intructions, hut will give them such attention as may be necessary during the course of the opinion. The cause was submitted to the jury upon the evidence introduced and the instructions of the court and they returned their- verdict finding the defendant guilty as charged, of both burglary and larceny, assessing his punishment at imprisonment in the penitentiary for a term of five years. Timely motions for new trial and in arrest of judgment were filed, taken up by the court and overruled. Sentence and judgment were entered in accordance with the verdict returned by the jury and from such judgment the defendant prosecuted this appeal, and the record is now before us for consideration.

OPINION.

I.

It is insisted by learned counsel for appellant that the judgment in this cause should he reversed for the reason that the information charged burglary in the first degree, and that if the evidence tended to show the commission of any offense, it was that of burglary in the first degree; hence the conviction of the defendant of burglary .in the second degree was erroneous. This contention is predicated mainly upon the theory that the burglary charged in this case was in a dwelling house in which there was at the time of the commission of such burglary a human being. This proposition necessitates a brief review of the sections of the statute defining burglary.

Section 1880, which defines burglary in the first degree, provides: “Every person who shall be convicted of breaking into and entering the dwelling-house of another, in which there shall be at the time some human being, with intent to commit some felony or any larceny therein, either: First, by forcibly bursting or breaking the wall or outer door, window or shutter of a window of such house, or the lock or bolt of such door, or the fastening of such window or shutter; or second, by breaking in any other manner, being armed with some dangerous weapon, or with the assistance and aid of one or more confederates, then actually present, aiding and assisting; or third, by unlocking an outer door by means of false keys, or by picking the lock thereof, shall be adjudged guilty of burglary in the first degree.”

Following this section it is provided by section 1881 that “every person who shall be convicted of breaking into a dwelling-house, with intent to commit a felony or any larceny, but under such circumstances as shall not constitute the offense of burglary in the first degree, shall be deemed guilty of burglary in the second degree.”

These two sections of the statute make substantially the same provisions concerning the offense of burglary as were made in Wagner’s Statutes 454, secs. 10 and 11. The provisions of these sections of the statute were in judgment before this court in State v. Tutt, 63 Mo. 595. In that case, as in the case at bar, it was earnestly insisted that the defendant, upon the charge in the indictment and the facts developed upon the trial, could not be convicted of burglary in the second degree. The defendant’s theory in that ease was that the entering of a dwelling-house by raising a window without breaking or bursting it constitutes the crime of burglary in the first degree, and as there was no evidence that the defendant entered in any other manner, he could not be convicted of burglary in the second degree. The proposition was thoroughly treated and the authorities applicable to it reviewed. It was held in that case that the degree of burglary for breaking and entering into a dwelling-house in which there was some human being depends upon the manner in which the breaking and'entering is accomplished. At common law, burglary was the breaking and entering the dwelling-house of another in the nighttime, with intent to commit a felony therein.

In 1st Bishop’s Criminal Law (3 Ed.) 327, it is said: “The mere lifting of a latch and so opening a door not otherwise fastened, or pushing upward or lowering a window sash which is held only by a wedge or pulley weight, or raising a trap door meant to be ketp down merely by its own gravitation, or procuring by craft, or by threats and intimidation, a person within the house to open the door, is, in legal contemplation, a breaking.”

Manifestly from the provisions of sections 1880 and 1881 it was intended to make a change and define conclusively the degrees of burglary: This was clearly decided in State v. Tutt, supra, where it was said by this court, speaking through Judge HeNEy, that “it is evident, however, that our statute did intend to make a change, not that any entering and breaking, which at common law was burglary, is not still burglary under our statute; hut those cases of breaking and entering at common law, which were effected in other modes than those specified in the tenth section, are now burglary in the second degree under the eleventh and succeeding sections of the statute. An indictment for burglary in the first degree under the tenth section must state, not only the breaking and entering into a dwelling-house in which at the time there was a human being, with intent to commit some felony or larceny, but that such breaking and entering was effected in one of the modes specified in that section. The manner of the breaking into a dwelling-house is one of the ingredients of burglary in the first degree.”

The learned judge in the Tutt case, in reviewing section 10 of Wagner’s Statutes, which is, as heretofore stated, substantially the same as section 1880 of our present statutes, stated that the 10th section of Wagner’s Statutes was copied from a New York statute which had in that State received a judicial construction. Following this, reference is made to the New York ease interpreting the provisions of the New York statute, from which our statute was borrowed, wherein it was said: “In the People v. Fellinger, 24 How. (N. Y.) 341, the court held that an indictment for burglary in the first degree, under the statutes of which ours is a copy, was fatally defective if it omitted to state the mode of breaking- into tbe dwelling'-bonse. ‘Tbe mode of breaking into tbe bonse (Ingraham, P. J.), as stated in tbe statute, is just as necessary to be proved to make out tbe offense, as that it was in tbe nighttime, or that there was at tbe time a human being in tbe bouse. "Without proof of one of these modes of entering tbe bouse, tbe offense is only burglary in tbe second degree.’ In tbe case of tbe People v. Bush, 3 Park. Crim. Cas. 553, tbe court held that ‘to constitute burglary in tbe first degree, there must be forcibly bursting or breaking tbe wall or an outer door, window or shutter of a window, or tbe lock or bolt of such door, or tbe fastenings of such window, or shutter or breaking in any other manner, being armed with some dangerous weapon, or with assistance and aid of one or more confederates, then actually present, or by unlocking an outer door by means of false keys, or by picking tbe lock thereof.’ ”

Judge ITeNuy finally ruled in tbe Tutt case that tbe indictment simply charged burglary in tbe second degree, and that tbe evidence did not show a mode of breaking and entering tbe dwelling-house contemplated by section 10 sufficient to constitute burglary in tbe first degree, and that tbe defendant was properly convicted of burglary in tbe second degree. In announcing bis final conclusion be used this language: “Tbe forcibly bursting or breaking an outer door means, in common parlance, more than merely lifting a latch. That tbe first subdivision of tbe tenth section must have designed something further, is apparent from tbe third subdivision, which provides that unlocking an outer door by means of false keys or picking tbe lock thereof, shall be a sufficient breaking to constitute burglary in tbe first degree. Tbe provision would have been wholly unnecessary, if simply unlatching the door would have been deemed bursting "or breaking it within tbe meaning of a former part of tbe same section. We are satisfied that tbe construction which tlie New York courts have given the statute nnchr consideration is the correct one, and that, as the indictment in the case at bar was for burglary in the second degree, and the evidence sustained that charge, and no other, and the instructions given by the court were in relation to that degree of the offense, and those asked by defendant and refused, were .as to burglary in the first degree, the court committed no error in giving o,r refusing instructions. ’ ’

It will be observed that the information in the case at bar is not predicated upon the provisions of section 1880, which specifically designates the mode of breaking, in order to constitute burglary in the first degree. In order to constitute burglary of the first degree under the provisions of section 1880, the breaking and entering must be accomplished by forcibly bursting or breaking the wall or outer door, window or shutter of a window, or the lock or holt of such door, or the fastening of such window or shutter, or by being armed with some dangerous weapon, or with the aid and assistance of confederates actually present, aiding and assisting, or by unlocking an outer door by means of false keys or by picking the lock. The information in this case did not charge in the terms of the statute any of such modes of breaking and entering, hut simply alleged the forcible removing of. a wire screen of an outer window of said dwelling-house.

It was said in State v. Tutt, supra, that the forcibly bursting or breaking an outer door means, in common parlance, more than merely lifting a latch. So it may he said in the case at bar, that the forcibly bursting or breaking of an outer shutter or window or shutter of a window means something more than merely the removing of a -wire screen of an outer window of a dwelling-house. That the unlatching of the fastening of a wire screen in the window is a sufficient breaking to constitute burglary, there can he no doubt, and, applying the rules as announced as to the proper interpretation of the sections of the statute applicable to burglary by this court, as well as by the New York courts, we see no escape from the conclusion that the information in this cause charged simply burglary in the second degree, and that the evidence if it established the commission of any offense, it was that of burglary in the second degree.

Again, it may be said that even if it he conceded that the evidence does tend to establish the offense of burglary in the first degree, it is very questionable as to whether the defendant is in a position to complain of a conviction of a less degree of the crime of the same grade simply because the evidence tended to show him guilty of a higher degree of the offense. [State v. Hamey, 168 Mo. l. c. 200-204; State v. Keeland, 90 Mo. 337; State v. Wagner, 78 Mo. 644; State v. Smith, 190 Mo. l. c. 718-722; State v. Bobbitt, 215 Mo. l. c. 38; State v. Schieller, 130 Mo. 510; State v. Lowe, 93 Mo. l. c. 574; Sec. 2369, R. S. 1899; Sec. 2535, R. S. 1899.]

II.

It is nest insisted that the court committed reversible error in failing and refusing to instruct the jury upon all questions of law arising in the case. This insistence is predicated upon the failure of the court to fully inform the jury as to their findings upon the offenses as charged. In other words, that the court failed to correctly instruct the jury that they might find the defendant guilty of the burglary and acquit him of larceny, or might find him guilty of the larceny and acquit him of the burglary, and also failed to direct the jury if they simply found the defendant guilty of the larceny alone as to what punishment should be assessed in the event that they found the value of the property taken was less than thirty dollars.

Upon this state of the record we are confronted with the question as to whether or not the exceptions of the defendant were broad enough to place the defendant in a position to complain of the failure of the court to fully instruct the jury upon the offenses of burglary and larceny as herein indicated. The exception as disclosed by the record simply shows that upon the giving of the instructions to the jury the defendant excepted “and also objected and excepted to the action of the court in failing and refusing to instruct the jury upon all questions of law arising in the case. ’ ’ In the motion for new trial this question was presented to the trial court in the sixth ground of the motion, as follows: “Because the court erred in failing to properly instruct the jury on all points of law in the case.”

Directing our attention to this proposition it is manifest that the State tried this case upon the theory that the defendant was guilty of burglary and larceny, and the testimony on the part of the State fully justified that theory. If the testimony of the State’s witnesses is to be believed, then this defendant was guilty of both burglary and larceny. The testimony of the removing of the screen by whoever it was that entered the building in order to make the entrance into the dwelling, and the additional fact that the burglar in escaping from the building passed through different rooms until he .reached the room where this screen had been removed, that is, if the testimony of the witness, Dr. Courtwright, as to the removal of the screen and the escape of the burglar was believed, was a sufficient showing to constitute a breaking. The defendant’s side of the case was tried upon the theory that he was not guilty at all; in fact that he was not present at the time and place of the commission of the burglary charged. These were the theories upon which the State and the defendant presented this case to the jury, and upon this view of the record, in our opinion, if counsel desired the jury to receive further instructions upon the questions of burglary and larceny, in other words, if they deemed it essential that the jury should he informed that, if they acquitted the defendant of the burglary and found him guilty of the larceny, it followed that the conviction could only be of larceny from a dwelling-house, they should have in some way at least indicated to the trial court the subject upon which the jury should have been given further information.

In State v. Espenchied, 212 Mo. l. c. 222-223, this court in treating of the proposition now under consideration, said: “While the record discloses that at the time the instructions were given ‘the defendant further excepted to the failure of the court to instruct the jury on all questions of law in the case,’ he did not intimate or suggest to the court upon what feature of the case it had failed to instruct, nor request it to instruct in any manner. In State v. West, 202 Mo. l. c. 137, there is quoted with approval the following from State v. McCarver, 194 Mo. 742: ‘The only construction which can be placed upon this objection is that the instructions did not cover all the points of law involved in the case, and not that they were in any respect erroneous. We have held that when the instructions of the court are read to the jury, and the defendant desires further instructions, it is his duty, in fairness to the court, to call its attention to any matter of law arising in the case upon which the court had failed to instruct, and which was deemed necessary by the defendant to be placed before the jury in order that they might arrive at a just verdict, and in the event of the failure of the court to so instruct, it becomes the duty of the defendant to except at the time. [State v. Bond, 191 Mo. 555.]” Besides, the point is not more definite in the motion for a new trial, and is entirely too indefinite to be available in this court.

In a number of comparatively recent well-considered cases treating of this proposition the rule has been firmly established in this State that when the defendant desires further instructions than those eiven by the court, which he may deem necessary for the further information of the jury, it becomes his duty to direct the attention of the court to the questions or subjects upon which further instructions should be given. [State v. Bond, 191 Mo. 555; State v. McCarver, 194 Mo. l. c. 742; State v. West, 202 Mo. l. c. 137.]

After the instructions of the court are read to the jury, simply interposing an exception in general terms that the court has failed to instruct upon all the law arising in the case, in our opinion, is entirely too indefinite to furnish defendant any basis for complaint in the appellate court with the view of convicting the trial court of error by reason of such failure. It is not a harsh rule to require counsel for the defendant to indicate in some way the subjects which the court has failed to cover by its instructions; this is but common fairness to the trial court. It is not essential that an instruction be presented to the court covering the subject, but if counsel for the defendant suggest to the court the subject or subjects upon which the jury should be given further information, this would be entirely sufficient as a basis for complaint in the appellate court, should the court erroneously fail to cover the subjects suggested.

Again, the theories upon which the State and the defendant tried this case must not be overlooked. Manifestly the theory of the State was that the defendant, if guilty at all, was guilty of burglary and larceny, and that of the defendant was that he was not guilty at all, for the reason that he knew nothing about the commission of the offense and was not present at the time of its commission. The counsel for the appellant, as disclosed by the record, presented the ease to the jury for the defendant in its strongest light, and the evidence introduced on the part of the defendant in support of his alibi was amply sufficient to convince the counsel that their client was not guilty of any offense at all, and it was but natural, even though the subject of larceny from a dwelling bouse came to tbeir minds at tbe time of tbe reading of tbe instructions, for tbem not to ask an instruction upon that theory of tbe ease, or even suggest it to tbe court. They simply followed tbe course that is usually followed by tbe experienced practitioner and declined to offer an instruction for a lower grade of offense or even to make a suggestion to tbe court covering such offense. Doubtless this course was pursued for tbe reason that tbe offering of an instruction or a sugges-tionfor one covering a lower grade of tbe offense in open court might have a tendency to lessen or weaken tbe force of tbeir position that tbe defendant was not guilty of any offense at all; however, when tbe instructions were read to tbe jury and counsel were confronted with tbe proposition as to whether or not they would suggest an instruction covering a lower grade of crime, it was for tbem to determine, and it was but fair to tbe trial court, if they deemed tbe instructions as given insufficient to cover all tbe subjects, to have at least suggested in some way to tbe court that further instructions should be given, otherwise it leaves tbe defendant in no position to complain of tbe failure of tbe court to cover a subject by its instructions to which its attention was not called, except by tbe most general terms, which in effect amounts to no calling at all.

Learned counsel for appellant upon this proposition direct our attention to tbe cases of State v. Brinkley, 146 Mo. 37; State v. Hecox, 83 Mo. 531, and State v. Nicholas, 222 Mo. 425, as supporting tbe contention that tbe failure of tbe court to instruct as heretofore indicated, constitutes reversible error.

In State v. Brinkley it will be observed that this court, speaking through Judge Btjbgbss, reversed and remanded that case for tbe reason that tbe defendant bad requested an instruction, while not sufficiently full, yet entirely sufficient to call tbe court’s attention to tbe fact that a correct instruction should be given covering that subject, and the court failed to give a proper instruction covering the subject. In treating of the proposition in that case, Judge Btjugess said: “ ‘The jury were properly informed as to what their verdict should be if they found the defendant guilty of burglary, and if they found him guilty of both burglary and larceny, but they should have been further told that they could acquit of burglary and find defendant guilty of larceny; in which event the larceny would be petit larceny only under this indictment. ’ While the instruction asked by defendant upon this theory of the case did not go far enough in that it did not tell the jury that they might convict of burglary and acquit of larceny, as well as acquit of burglary and convict of larceny, or convict or acquit of both, as they believed them guilty or not guilty under the evidence, by it the court’s attention was called to the fact that it had failed to so instruct (State v. Davis, 141 Mo. 522), which should have been done, and because of its failure to do so, we reverse the judgment, and remand the cause.”

In State v. Hecox, it will be noted that case was reversed and remanded for the reason that the cause was tried in the lower court on the theory that if the defendant was found guilty of larceny he must also be found guilty of burglary, and it was expressly stated by the court that under the indictment and facts in that case the defendant could only be convicted of the larceny; hence, it was clearly erroneous for the court to fail to instruct the jury covering the only offense of which he could be convicted under the charge. That case manifestly furnishes no support for the contention in this case that an exception in the general terms as heretofore mentioned was sufficient to furnish a foundation for complaint in the appellate court.

In State v. Nicholas, counsel for defendant objected and excepted to all of the instructions given by the court in the case, and especially excepted to the action of the court “in not instructing on all tire law in tire case and not instructing on the different degrees of larceny.” It was held in that case, and we think properly so, that the special exception to the failure of the court to instruct the jury on the different degrees of larceny was sufficient to call the court’s attention to its failure to embrace in the instructions, in the event the jury should find the defendants not guilty of burglary, the subject of larceny from a dwelling-house. Moreover, it will be observed in that ease that the jury simply returned a verdict against the defendants for grand larceny, and the record disclosing a conflict in the testimony as to the value of the property, it became highly important for the court, upon its attention being called especially to the fact, to have directed the jury respecting the punishment to be assessed for larceny from a dwelling-house where the value of the property was less than thirty dollars.

That is not this case. The jury in the case at bar found the defendant guilty of both burglary and larceny, and we again repeat, if the testimony of Dr. Courtwright and Mrs. Daniels was true, and the jury believed it to be true, then in our opinion the defendant was properly convicted of both burglary and larceny.

m.

It is earnestly contended by counsel for appellant that under the evidence as developed upon the trial in the lower court the defendant should be acquitted. We are unable to give our assent to 'this contention. While it must be conceded that counsel for the defendant made a strong showing in support of the alibi of the defendant, and if the testimony as offered was true, and the jury saw proper to believe it, there can be no question but what the defendant was entitled to an acquittal. But on the other hand, it may be said that the testimony as introduced by the State, if true, and believed by the jury fully supports the conviction of the defendant. Dr. Courtwright and Mrs. Daniels, both of whom had known defendant for a number of years, testified that there was a bright light burning in one of the rooms which enabled them to see the defendant plainly, and both of these witnesses, without hesitation, identified the defendant as being the Solomon Wilson, the burglar. In addition to this the night watchman of Lathrop positively identified the hat which was left by the burglar in the room in making his escape, as being the hat worn that afternoon between three and fo'ur o ’clock by the defendant, Solomon Wilson. Numerous other witnesses testified that the hat left by the burglar looked very much like the hat they had often seen the defendant wearing. Upon the question of breaking, Dr. Courtwright testified that ujoon retiring the window through which the defendant escaped was securely screened,' and that this screen was out of the window when the defendant escaped and was found after the commission of the offense standing at the side of the window. The testimony clearly shows that the defendant entered the dwelling-house by removing the window screen. The screen was in the window when D,r. Courtwright and his family retired, and the defendant was discovered in the dwelling-house and in the struggle with Dr. Courtwright he reached the room where this screen had been removed and made his escape from that window.

It is argued by appellant’s counsel that the doors to the dwelling-house were left unfastened or opened. It is a sufficient answer to that argument to say that if the defendant entered this house by removing the screen, which thé testimony, in our opinion, clearly, establishes, it is immaterial whether the doors were fastened or not. The law would not require the State to institute a general inquiry as to the other various openings and fastenings of the entrances to such house. It was sufficient for the State to introduce testimony which substantially tended to show that the defendant in effecting his entrance into the dwelling of the prosecuting witness had removed a wire screen to one of the windows, and not only made his entrance through that window, hut as well his escape. If the doors were opened or unfastened it seems that the defendant did not either go in or out of the house that way. He knew full well that the window screen had been removed; he came in that way and adopted that opening as the one through which to make his escape.

It is unnecessary to cite authorities that this court will not undertake to retry a case upon the evidence as disclosed by the record. If there is substantial evidence to support the verdict, this court has uniformly held that it will not disturb such verdict on the ground of a conflict in the evidence. This case' is no exception to cases of this character. With few exceptions there is always some conflict in the testimony developed upon the trial, and it is the sole province of the jury to determine the credibility of the witnesses and the weight to be attached to their testimony. We have often said that the trial court and the jury have opportunities of judging of the credibility of the witnesses and the weight to be attached to their testimony that are not afforded the appellant tribunal. The verdict in this cause was retflrned by the jury after a-full hearing of the testimony in the cause. The trial court saw the witnesses and heard them testify, and fully approved the finding of the jury. We are unwilling, upon this state of the record, to disturb this verdict which is supported by substantial testimony showing the guilt of the defendant and has met the approval of the learned judge presiding at the trial.

Entertaining these views, to which we have given expression, the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT, P. J.

license: Public Domain

text:
    THE STATE v. WARREN STANLEY, Plaintiff in Error.
    Division Two,
    February 12, 1910.
    1. WRIT CORAM NOBIS: To Correct Error Apparent of Record. For an. error of fact in the proceedings of a court of record a writ of error coram nobis will lie to correct the judgment. But the writ does not lie to correct an adjudication of fact which appears upon the face of the record, but only to correct an error of fact which did not appear in the record. So that where petitioner, in his application for the writ, states that this court, in holding that his bill of exceptions was not filed in time in his appeal from the judgment of the circuit court, ignored a matter of fact apparent upon the face of the record, of which fact the court must take judicial cognizance, he states himself out of court.
    2. -: -: That Last Day Was Sunday. The circuit court on November 14th extended the time in which appellant might file his bill of exceptions sixty days, and this order was renewed on January 14th, and this court held on petitioner’s appeal the time had expired when the last order was made, being sixty-one days, and the application for a writ of coram nobis concedes this court in estimating the time correctly found that the sixty days had expired before the extension was attempted to be made, but says the matter of fact which did not appear to the court was that the last day of these sixty days, to-wit, January 13th, was Sunday, and that “this court was in error upon the question of fact that the last day for making further orders for filing the bill of exceptions expired on the 13th day of January, instead of the 14th, because the court must judicially know that January 13th was Sunday and all acts within the law prescribed to be done upon that day may be done upon the day following.” Held,, that the court takes judicial notice of the calendar, and with the fact before it that January 13th was Sunday decided that it was one of the sixty days within which defendant was to file liis bill, and having so decided its judgment cannot be i-eviewed by a writ of error coraw nobis, because, even if it were an error, it was an error of law, and not of .fact.
    3. -: When Available: After Term. The writ of error coram nobis does not authorize a court to review its adjudications after a lapse of the term at which they were made.
    4. -: -: Fact Must Be Before Court. The writ of error coram nobis is only allowed for the recall of some adjudication made while some fact existed which, if before the court, would have prevented the adjudication, and which without any fault or negligence on the part of the petitioner was not presented to the court.
    5. -: -: Failure to Take Timely Action. Where the petitioner had opportunity to bring to the attention of the court the matter complained of and failed to do so, the writ of error coram nobis will not avail him. Where this court on petitioner’s appeal decided that the order extending the time in which he might file his bill of exceptions had not been timely made, and he had ten days in which to file his motion for a rehearing and for the correction of any error in that opinion, and he filed his motion for a rehearing but made no complaint of the decision in that regard, he cannot now be heard to complain that the decision was erroneous.
    Application fo.r Writ Coram Nobis.
    WRIT DENIED.

      C. P. Hawkins for plaintiff in error.

      Elliott W. Major, Attorney-General, and John M. Da/wson, Assistant Attorney-General, for the State.
    (1) The writ of error coram nobis is grounded upon latent errors of fact which do not appear upon the face of the record, but which must be brought to the attention of the court by evidence aliunde. It is in the nature of a new action, analogous to the writ of error. It necessarily depends upon the production of extrinsic evidence, for the error does not appear as in the case where the remedy is in the ordinary writ of error, and the test to be applied as to whether or not the proceeding will lie is to consider whether the irregularity of error of fact arises upon the face of the record proper. If it does, the writ will not lie. If it *is a fact that must be disclosed by the production of extrinsic evidence, and the court would be disabled from rendering the judgment that it had already rendered, upon the disclosure of such extrinsic evidence or evidence dehors the record, then the writ will lie, otherwise the application for the writ should be refused. Hirsh v. Weisberger, 44 Mo. App. 510. If the remedy or writ of error corctm nobis can be obtained on the grounds alleged in appellant’s application here, there would be little certainty in judicial proceedings and no finality in the judgment of courts. Asbell v. State, 62 Kan. 214; Dugan v. Scott, 37 Mo. App. 663. A petition or motion in the nature of a writ of error coram nobis lies to set aside a judgment rendered in consequence of an error of fact not apparent on the face of record. State ex rel. Horine, 63 Mo. App. 1; State v. Heinrich, 14 Mo. App. 146 ; Powell v. G-ott, 13 Mo. 459; Sanders v. State, 85 Ind. 326; Milam Co. v. Eobertson, 47 Tex. 231. The writ of error coram nobis-is confined as a remedy to errors of fact, and does not reach errors of law. Hillman v. Chester, 12 Heist. (Tenn.) 36; Bank v, Upman, 14 Wis. 599. (2) Where the facts appear upon the face of the record, the application for a writ of error coram nobis is properly denied. Powell v. Gott, 13 Mo. 458; Latshaw v. McNees, 50 Mo. 381; LaBourgeoise v. McNamara, 82 Mo. 193. (3) The writ of error coram nobis will not be granted to correct an error of law or a matter of fact shown upon the face of the record; or a fact that the court will take judicial notice of (the latter being a fact unnecessary to be proven). Jeffery v. Fitch, 46 Conn. 604; Albree v. Johnson, 1 Flipp. 345; Bridendolph v. Zellers, 3 Md. 333; Beaubien v. Hamilton, 4 Ill. 217; Peak v. Shasted, 21 Ill. 138; State ex rel. v. Eiley, 219 Mo. 667. (4) The writ of error
      coram nobis is not a writ of right, it is a matter of discretion with the court before which the application is made, whether npon the affidavit to grant the writ, the conrt will nse its judicial discretion in granting’ the writ, Neither does the granting of the writ decide the fact assigned for error definitely. Tyler v. Morris, 20 N. 0. 515; Birch v. Triste, 8 East 415; Ribout v. "Wheeler, Sawyer’s R. 166; Smith v. Kings-ley, 19 Wend. 620; Higbie v. Comstock, 1 Denio 652. Tbe court in passing upon the application or motion for the writ should not consider any facts in evidence, or that might have been put in evidence by the party applying for the writ. 23 Oyc. 884; Dobbs v. State, 63 Kan. 321; Pladley v. Bernero, 103 Mo. App. 549; State v. Wallace, 209 Mo. 365. The court has taken judicial notice of the facts and allegations alleged in appellant’s application for writ of error coram nobis, in its opinion and decision of this cause. Hodgson v. Banking House, 9 Mo. App. 24; Said v. Stromberg, 55 Mo. App. 438; State v. Harris, 121 Mo. 445; State ex rel. v. Todd, 72 Mo. 288; 1 Greenleaf on Evidence, sec. 5, pp. 9, 10, 11; 1 Elliott on Evidence, sees. 57 and 58; Moson v. Crowder, 85 Mo. 526.
   GANTT, P. J.

This is an application for a writ of error coram nobis, by the petitioner, to set aside and vacate the judgment of this court affirming the judgment of the circuit court of Dunklin county on June 8, 1909. The facts upon which this application is based are as follows:

On the 15th of October, 1904, an information was filed in the circuit court of Dunklin county by the prosecuting attorney of said county charging the petitioner herein with murder in the first degree of one F. E. Holliday on the 15th of May, 1904. The defendant was duly arraigned and entered his plea of not guilty, and at the November term, 1905, of the Dunklin county circuit court he was convicted of mux-der in the second degree, and Ms punishment assessed at imprisonment in the penitentiary for a term of fifty years. After unavailing motions for a new trial and in arrest of judgment, the defendant therein, the petitioner here, appealed to this court. At the April term, 1909, of this court that judgment and sentence was affirmed. It appears that when the appeal was granted in the circuit court on the 14th of December, 1905, the court made an order allowing the defendant to file his hill of exceptions on or before the first Monday in May, 1906, and afterwards on the 7th day of May, 1906, it being the first day of the May term, 1906, of the said court, it was ordered that the time for 'filing the hill of exceptions in the said cause he extended ninety days from that date, and afterwards on the 24th day of July, 1906, it being in vacation of said court, the judge of said court, in writing, for good cause shown, further extended the time of the filing of the said hill to the third day of the November term, 1906, of the said court, and filed said written extension in the office of the clerk of the said court. Afterwards on the 12th day of November, 1906, the time was extended sixty days from the expiration of the time theretofore granted for the filing of the said bill. It then appears that on the 14th of January, 1907, in vacation, the counsel for the defendant and the prosecuting attorney filed a written stipulation extending the time thirty days from the expiration of the time previously fixed. Afterwards on the 12th day of February, 1907, in vacation, the judge of the said court further extended the time to the 15th day of March, 1907, and filed his order with the clerk of the circuit court, and thereafter on the 12th day of March, 1907, the defendant filed his bill of exceptions in the said cause. The cause was set down for trial in this court for April 13, 1909, at the April term, 1909; of this court, and was duly submitted by the State on brief, no counsel appearing for the defendant and no brief was filed on Ms behalf. In the brief filed for the State, the point was made that the bill of exceptions could not be considered for the reason that the same was not filed within the time allowed by the order of the court made on the 13th day of November, 1906, but that the sixty days then allowed expired on January 13, 1907, and consequently the order made on January 14, 1907, was invalid because the court had lost jurisdiction to extend the same. In the opinion of this court it was said on this point: “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 14th day of November. 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.]” It was accordingly ruled that the bill of exceptions could not be considered by this court in reaching its judgment.

As a ground for his application for a writ of corami nobis, it is alleged: “It also appears from the record, but not from the opinion, that the bill of exceptions was filed within the time mentioned by the last order (to-wit, the order of November 12th, 1906). It also appears from the record that this court held that no hill of exceptions was filed within the time allowed hy the trial court and in such holding this court was mistaken in and ignored a matter of fact apparent upon the face of the record, of which fact this court must take judicial cognizance. In other words, the trial court had previously extended the time for the filing of a hill of exceptions to the third day of the November term, 1906, which date this court must judicially know and from the opinion did know, was the 14th day of November, 1906. This court judicially determined that a grant of leave to file bill of exceptions made on the 14th of January, 1907, was without the time, i. e., that it was sixty-one days instead of the sixty days granted by the trial court. In this, this court was in error in the matter of fact, which fact is apparent of record and within the judicial knowledge of this court, viz., that the last day to file said bill of exceptions fell upon Sunday and the order granting the extension of time for the filing of the bill of exceptions was made upon the Monday following. This court was in error upon the question of fact that the last day of taking further orders as to the filing of a bill of exceptions expired on the 13th day of January, 1907, instead of January 14, 1907, because the court must judicially know that January 13th was Sunday and that all acts within the law prescribed to be done upon that day could lawfully be done upon the day following, whereupon defendant prays that he may be granted a writ of error coram nobis, to the end that this fact not heretofore heard and determined by the court and not heretofore known to the defendant herein, may now be judicially recognized.

I. It is settled that for an error in fact in the proceedings of a court of record a writ of error coram nobis will lie to correct the judgment. [State ex rel. y. Riley, 219 Mo. l. c. 682.] In Dungan v. Scott, 37 Mo. App. l. c. 669 and 670, tlie Kansas City Court of Appeals said: “The contention being that nothing can be heard dehors the record to establish the fact of defendant’s'death. If this contention be true, then, not only is the form of the proceedings on a writ of error coram nobis abrogated, bnt the remedy, or very substance of the writ itself is gone. For the writ was always brought into requisition to correct some error of fact which did not appear in the record and which was unknown to the court.” In Marble v. Vanhorn, 53 Mo. App. l. c. 364, it was said: “There is another important rule found in this branch of the law, viz., that where the party complaining knew the fact, or might have known it, and failed to bring it to the attention of the court, he cannot afterwards do so. Thus, ‘A man shall never assign that for error which he might have pleaded in abatement, for it shall be accounted his folly to neglect the time of taking that exception. As, if a feme covert bring an action in her own name per attornatum, and the defendant plead in bar to the action, he shall never afterwards assign the coverture for error.’ [3 Bacon’s Abridgments, Error, 375.] And so, in keeping with what has been already said, if, the matter be once passed upon as an issue, this motion cannot be invoked; for if it could it would be apparent that there would be no end to litigation. [McKindley v. Buck, 43 Ill. 488; 1 Freeman on Judgments, sec. 94.] ” And this is the rule in other jurisdictions. In Asbell v. The State, 62 Kan. l. c. 214, the court said: “It cannot reach any matter of fact known to the court, for such would be error of law, and might be remedied by writ of error. Nor can the writ reach matters of fact known, or which by the exercise of reasonable diligence could have been known, to or by the party making the application at the time of the court’s error. Nor can the writ give a new trial on the grounds of evidence going to the merits, but undiscovered in time for use on the original trial, or newly-discovered evidence.” In Sanders v. The State, 85 Ind. l. c. 326, Judge Elliott speaking for the court said: “The writ of error coram nobis is not intended to authorize any court to review and revise its opinions; but only to enable it to recall some adjudication, made while some fact existed which, if before the court, would have prevented the rendition of the judgment, and which, without any fault or negligence of the party, was not presented to the court.” In Milam Company v. Robertson, 47 Texas l. c. 232, it was said by the court: “But, where the error is of law, though touching a matter of fact apparent upon the record, and assignable as error, and is directly passed upon or affirmed by the court, it can neither be reversed nor corrected, on such writ, nor by motion, after the adjournment of the term at which it was rendered. In such cases, relief can be had, if at all, only on appeal, or by writ of error to a superior or supervising tribunal.” See, also, Hillman v. Chester, 12 Heisk. (Tenn.) l. c. 36; Bank v. Upman, 14 Wis. 599; Latshaw v. McNees, 50 Mo. l. c. 384; Powell v. Gott, 13 Mo. 458,

With these recognized principles in view let us now inquire whether the applicant brings himself within their purview so as to entitle him to a writ of coram nobis. In his application he states that this court in holding that his bill of exceptions was not filed within' the time, ignored a matter of fact apparent upon the face of the record of which fact this court must take judicial cognizance. If he is*correct in this assertion, then he states himself out of court, because it is everywhere adjudged that this writ does not lie to correct a fact which appears upon the face of the record, but only to correct an error of fact which did not apjaear in the record. Counsel concede that the court in estimating the time correctly found that these sixty days had expired before the extension was attempted to be made on the 14th of January, 1907, but he says the matter of fact which did not appear to the court was that the last day of these sixty days was Sunday and that, that being the case, it was sufficient to take an additional extension to the sixty-first day. The learned counsel assumes, without any evidence to support his assertion, that .this court did .not know that the 13th day of January, 1907, was Sunday. Courts take judicial notice of the calendar, and every presumption must be indulged in favor of the judgment of a court of general jurisdiction and as it appears, upon the face of the calendar that January 13th was Sunday, it must be presumed that this court took cognizance of that fact, a fact which no evidence was required to establish. The specific fact, which this court had brought to its attention by the Attomey-G-eneral in his brief, was that the sixty days time had expired, and it passed directly upon that question in deciding the cause, as appears by our opinion in the case, so that the presumption that our attention was not called directly to this question is without foundation. It seems apparent to us that counsel ' seeks to have us review and revise our opinion rendered at the April term, 1909', after that term has elapsed, and the rule everywhere is that this writ does not authorize any court to recall its adjudications after a lapse of the term. But again, this writ is only allowed to recall some adjudication made while some fact existed which, if before the court, would have prevented the rendition of the judgment, and which without any fault or negligence of the party was not presented to the court. Now, conceding that the 13th of January, 1907, was Sunday, will that fact avail the applicant herein? We are cleanly of the opinion that it will not. As already said, this court takes ex officio notice of the calendar and therefore knew that the 13th of January, 1907, was Sunday, and yet with that fact before it decided that it was one of the sixty days within which the defendant was to file his bill of exceptions. Conceding that the eonrt erroneously included Sunday in this count of the sixty days, it was but an error of law for which this writ will not lie. And the matter having once been passed upon as an issue directly presented to it on the part of the State, this writ cannot be. invoked after the end of the term at which the judgment was rendered.

II. But there is another reason why in our opinion the applicant is in no position to invoke this writ at this time, because this court passed directly upon this question of the expiration of the time for filing the bill, and the defendant in that case, the applicant here, was allowed ten days within which to file his motion for a rehearing and the correction of any error in that opinion. With the opinion of this court before him deciding this identical point against him he filed his motion for rehearing and made no complaint of this error of which he now complains, and thus the rule announced in Marble v. Vanhorn, 53 Mo. App. 364, is applicable, to-wit, that where the party complaining knew the fact, or might have known it and failed to bring it to the attention of the court when he had an opportunity so to do, he cannot after-wards do so. In State v. Wallace, 209 Mo. l. c.355, it was said: “It is not, however, a writ of right, but is granted or refused in the discretion of the court on affidavits presented or evidence adduced; and it has been held that the action of the court in granting the writ will not be reviewed upon appeal. But the court in passing upon the application or motion for the writ should not consider any facts that might have been put in evidence by defendant had he been put upon trial in the case. [23 Cye., p. 884; Dobbs v. State, 63 Kan. 321; Hadley v. Bernero, 103 Mo. App. 549.]”. An issue of fact wrongly decided is not error in that technical sense in which the writ refers. As already seen it has been uniformly ruled that a party seeking to avail himself of this remedy must show that it was owing to no negligence on his part that the fact was not made to appear on the former trial, for if by the exercise of all reasonable care and diligence he could have availed himself of the fact on the former trial then this remedy should he denied him. Now in this case, the defendant was the appellant, it was his duty to see that his record was properly certified to this court and to file his brief setting forth the errors of which he complained, but as already stated he filed no brief, nor did his counsel appear to make an oral argument for him, and the cause was submitted to this court upon the brief of the Attorney-G-eneral alone and the record. The point was specifically made by the Attorney-General that the hill of exceptions was not filed in the time allowed by the court, and in the opinion of this court it was held the point was well taken. Under the standing rule of this court the defendant was given ten days in which to file his motion for rehearing and to call the attention of this court to any errors it might have made in the decision thereof. Within the ten days the defendant did file his motion for rehearing, but he made no mention of the point upon which he now asks a rehearing practically in this court, long after the term of the court has elapsed. With his attention directly called to this point in the opinion of the court, how can it be said that the defendant exercised all reasonable care and diligence to bring this question before this court? It seems to us that the defendant has been guilty of negligence in not presenting this matter at' the time his motion for rehearing was filed, or by a reply brief to the State’s brief in the main case when he could have had the matter of which he now complains, specifically brought to the attention of the court. To tolerate and encourage this kind of practice, would in our opinion, be to open the door for negligence on tbe part, of the appellant and there would be no end of litigation.

Onr attention has been called by the applicant, to the decisions of this court holding that a party has four working days in term time to file a motion for new trial and that in counting such time Sunday will be excluded. We think these cases, however, have no application to the leave granted to the filing of a bill of exceptions in vacation.

After a mature consideration of the application of the petitioner for the writ, we are of the opinion that it should be, and it is accordingly, denied.

Burgess, and Fox, JJ., concur.


author: BURGESS, J.

text:
    THE STATE v. C. W. EARLL, Appellant.
    Division Two,
    February 12, 1910.
    1. APPEAL: Demurrer: Preserved in Bill of Exceptions Only: Not Reviewabie. A demurrer to tbe information is recognized as a pleading and is therefore a part of the record proper and if it does not appear in the record proper but only in the bill of exceptions, no point raised by it is for review on appeal.
    2. -: -: -: -: Constitutional Question. And if the offense which the information charges is a misdemeanor and in order for the Supreme Court to have jurisdiction of the appeal a constitutional question must be involved, and if such point is raised only by the demurrer which is preserved only in the bill of exceptions and therefore cannot be considered, ’the Supreme Court does not have jurisdiction to hear and determine the appeal.
    3. INFORMATION: Demurrer After Plea. A demurrer to an information charging a misdemeanor, filed after the entry of a plea of not guilty, cannot be considered. He waives his right to demur by his prior plea of not guilty, unless when he wishes to file his demurrer he first withdraw his plea.

      Appeal from Jackson Criminal Court. — 1Ion. Ralph 8. Latshaw, Judge.
    TRANSFERRED TO KANSAS ClTY CoiJRT OF APPEALS.

      G. W. Duvall for appellant.

      FAliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-Ceneral, for the State.
   BURGESS, J.

At the April term, 1909, of the criminal court of Jackson county, the prosecuting attorney of said county filed an information charging “that C. W. Earll, whose Christian name in full is unknown to said prosecuting attorney, late of the county aforesaid, on the 17th day of May, 1909, at the county of Jackson, State of Missouri, did then and there unlawfully and knowingly sell, and offer for salé, exchange and deliver, a certain quantity of vinegar, to-wit, one pint of vinegar artificially colored with caromel or other artificial coloring matter, contrary to the statutes in such cases made and provided,” etc.

On the day of the filing of said information the defendant was arraigned, and entered his plea of not guilty. Thereafter the defendant filed a demurrer to the information, which demurrer the court overruled. Thereupon, the parties announced ready for trial, waived trial by jury, and submitted the case to the court upon the following agreed statement of facts, to-wit:

“That said defendant, C. ~W. Earll, on the 17th day of May, 1909, at the county of Jackson, State of Missouri, did then and there sell, and offer for sale, exchange and delivery, one pint of vinegar artificially colored with caromel; that said caromel coloring is harmless, and was used for coloring purposes only, and that said bottle containing said pint of vinegar was labeled ‘Colored Distilled Vinegar,’ and that said vinegar was in fact ‘colored distilled vinegar.’ ”

The court, after hearing the arguments of counsel, found the defendant guilty, and assessed his punishment at a fine of one' hundred dollars. Timely motions for new trial and in arrest of judgment were filed, and overruled, and judgment entered against defendant for one hundred dollars and costs. At the same term defendant appealed to this court.

The demurrer filed in this case does not appear in the record proper, where it should he, but the same is found in the bill of exceptions. The grounds of the demurrer are:

1. That the information charges no offense.

2. That the act under which the information is drawn conflicts with sections 4 and 30 of article 2 of the State Constitution.

3. That the act under which the information was drawn was repealed by the act of 1907 entitled, “An act to prohibit the manufacture and sale of food, drugs, medicines, beverages and liquors, as defined in this act, and prescribing penalties for the violation thereof.”

Since the conviction was for a misdemeanor, in order to give this court jurisdiction of the appeal a constitutional question must be involved in the case, and the record must show that such question was properly raised in the court below. Such question is raised only by the second ground of the demurrer. As section 596, Revised Statutes 1899, recognizes a demurrer as a pleading, it is therefore a part of the record proper (Barton Bros. v. Martin, 54 Mo. App. 134, and cases cited), and the demurrer in this case not being preserved in the record proper, it is not reviewable. This being so, there is no constitutional question before us for determination, and consequently no jurisdiction in this court to hear and determine the appeal.

The record shows that the defendant was arraigned and pleaded not guilty, and thereafter, without withdrawing his plea, he filed his demurrer. His right to demur was waived by his plea of not guilty, or, in other words, it was too late after the plea was entered. [1 Bishop’s New Crim. Proc., secs. 730, 780; Wharton’s Crim. P. & P., sec. 407b; 1 Chitty’s Crim. Law, p. 440; Oakley v. State, 135 Ala. l. c. 22.] It is true that at common law a defendant, in a prosecution for felony, might at one and the same time enter his plea of not guilty and his demurrer to the indictment, and upon the demurrer being overruled, he would be triable on his pending plea of not guilty just as if the demurrer had not been filed; but this applies only to cases of felony, and the rule did not cover misdemeanors. [1 Chitty’s Crim. Law, 435, 440; State v. Reeves, 97 Mo. 668; State v. McCoy, 111 Mo. 517.] For such additional reason, the defendant’s demurrer cannot be considered, this being a case of misdemeanor.

The cause is ordered transferred to the Kansas City Court of Appeals for its decision.

All concur.


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    THE STATE, Appellant, v. LUTHER McKAY.
    Division Two,
    February 12, 1910.
    1. APPEAL: By State: Information. Prior to May 14, 1909, the State had no right to an appeal from an order and judgment quashing an information; and the act of that date has no application to an appeal taken before its approval.
    2. -: -: -: No Bill of Exceptions. If no hill of exceptions were filed by which the exceptions to the action of the trial court in sustaining the motion to quash the information were preserved, the ruling of the trial court in that matter cannot be reviewed by the Supreme Court upon appeal.
    3. -: -: -: Motion for New Trial. The action of the trial court in sustaining a motion to quash the information cannot be considered on appeal, by the State, unless there was a motion for a new trial filed in the trial court, in which that court’s attention was called to the error complained of.

      Appeal from Marion Circuit Court. — Eon. David E. Eby, Judge.
    Appeal dismissed.

      Elliott W. Major, Attorney-G-eneral, and James T. Blair, Assistant Attorney-General, for the State.
    (1) This case seems to come within the rule laid down in the case of State v. Hayes, 220 MJo. 1, and cases cited. (2) And could this appeal escape the force of the decisions to which reference is made, another difficulty of quite serious nature would he met in the path to a reversal of this cause, i. e., the motion to quash, and the exception to the court’s action thereon, are not preserved for review. State v. Tooker, 188 Mo. 444. (3) Could all these obstacles be overcome, another would arise. No motion for new trial, calling the lower court’s attention to the error complained of, was filed and brought here.

      Ben F. Glahn for respondent.
    (1) This appeal should be dismissed for want of jurisdiction, because at the time the judgment of the circuit court of Marion county, Missouri, was rendered, quashing this information, the State had no right of appeal from a judgment quashing an information. R. S. 1899, secs. 2708 and 2709; State v. Hayes, 220 Mo. 1; State v. Adams, 193 Mo. 196; State v. Beagles, 174 Mo. 624; State v. Rozelle, 174 Mo. 632; State v. Yan Brunt, 147 Mo. 20; State v. Cornelius, 143 Mo. 179; State v. Carr, 142 Mo. 607; State v. Clipper, 142 Mo. 474. It is true that Sec. 2709', R. S. 1899, as amended by the act of the Legislature approved May 14, 1909, Laws 1909, p. 461, gives to the State now the right to appeal from a judgment quashing an information, but as this appeal was taken and granted on the 8th day of February, 1909, and as the amendatory act was not passed nor approved until after that date, said amendatory act could not give to this court jurisdiction of this appeal. To hold otherwise would make said amendatory act ex post facto, and in violation of both the Constitution of the United States, art. 1, sec. 10, and the Constitution of Missouri, art. 2, sec. 15'. (2) But even if this court had jurisdiction of this appeal no exceptions were preserved in this case, and therefore there is nothing-before the court for review, and the judgment would for this reason have to be affirmed. State v. Campbell, 141 Mo. 597; State v. Fraker, 137 Mo. 258; State v. Thurston, 83 Mo. 271; State v. Gee, 79’ Mo. 313; State v. Russell, 69 Mo. App. 441; State v. Kitchen, 15 Mo. 207; State v. Fortune, 10 Mo. 466. A motion to quash an information or an indictment does not corn stitute a part of the record proper, and the motion in this case not having been preserved by bill of exceptions, the action of the trial court in sustaining the motion to quash, is not open to review in this court. State v. Coleman, 199 Mo. 112; State v. Finly, 193 Mo. 202; State v. Tooker, 188 Mo. 438; State v. Wilhoit, 142 Mo. 619; State v. Henderson, 109 Mo. 292. Recitals in the record cannot preserve mere matters of exception. State v. Price, 186 Mo. 140 ; State v. Tooker, 188 Mo. 438; State v. Fraker, 137 Mo. 258; State v. Wilhoit, 142 Mo. 619.
   FOX, J.

This cause is brought to this court by appeal on the part of the State from an order sustaining a motion to quash an information which had beén filed in this cause and discharging the defendant.

At the September, 1908, term of the circuit court of Marion county, Eugene W. Nelson, prosecuting attorney, filed an information charging defendant with having embezzled certain public moneys entrusted to his care in his official capacity as county clerk of Marion county. The defendant was arrested, arraigned and pleaded not guilty. Subsequently, by leave of court, the plea of not guilty was withdrawn, and a motion to quash the information filed, which the court sustained and entered a judgment quashing the information and discharging the defendant. From this judgment on February 8, 1909', the State, through its prosecuting officer, appealed to this court.

No bill of exceptions preserving the action of the court upon the motion to quash the information was filed by the State.

This sufficiently presents the record in this cause.

OPINION.

I.

Under the law of this State at the time it was sought by the State to appeal from the judgment in this cause there was no right of appeal on the part of the State from an order and judgment quashing an information. This is conceded by the learned Attorney-General wherein, with commendable frankness, he admits that this case comes within the rule laid down in the case of State v. Hayes, 220 Mo. 1, and cases cited.

While it is true that section 270-9, Revised Statutes 1899, as amended by the act of the Legislature approved May 14, 1909, Laws 1909, pp. 461-462, changed the statute so as to give the State the right of appeal from a judgment quashing an information, manifestly that amended statute has no application to this case for the reason that this appeal was taken and granted on the 8th day of February, 1909, and the amendatory act was not passed nor approved until May 14, 1909; hence it necessarily follows that the amenda-tory act could not give this court jurisdiction of that appeal.

II.

EiVen if it should be conceded that this court bad jurisdiction of the appeal no bill of exceptions was filed by which the exceptions to the action of the trial court in sustaining the motion to quash the information were preserved; hence it follows that there is nothing before this court for review, and the judgment, if this court had jurisdiction, would have to be affirmed upon that ground. [State v. Fraker, 137 Mo. 258; State v. Tooker, 188 Mo. l. c. 444, 445.]

In State v. Fraker, supra, the question presented was substantially the same as the one in the case at bar, and in that case UaNtt, P. J., speaking for this court, thus clearly and briefly treated this proposition: “This is an appeal by the State of Missouri from a judgment of the circuit court of Ray county quashing an indictment against the respondent. The indictment was discussed with much ability by both sides. The case has some very unusual features and has excited much interest, particularly in its legal aspects. The motion to quash the indictment was sustained. The prosecuting attorney filed no bill of exceptions and the motion to quash the indictment was not therefore made a part of the record. That we may not be misunderstood, we state that the clerk has copied the different motions to quash into the transcript certified to this court, and the record proper recites in the order overruling the motion that the prosecuting attorney at the time excepted to the ruling of the court, but this action of the clerk in voluntarily copying these motions into the transcript does not make them a part of the record in a legal sense, nor does the noting of the exception on the record proper preserve it' for review by this court. The motion to quash must be preserved in a bill of exceptions or its sufficiency cannot be considered by this court. [State v. Fortune, 10 Mo. 466 ; State v. Wall, 15 Mo. 208; State v. Gee, 79 Mo. 313; State v. Thurston, 83 Mo. 271; State v. Vincent, 91 Mo. 662; State v. Henderson, 109 Mo. 292.] ”

Again, as a reason why this question is not subject to review in this court, the record fails to disclose that any motion for a new trial, calling the lower court’s attention to the error complained of, was filed.

We see no necessity for pursuing this subject further. The rules of law as herein indicated are practically conceded by the Attorney-General.

Entertaining the views as herein indicated, the appeal should be dismissed, and it is so ordered.

All concur.


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    THE STATE v. ARTHUR THAVANOT, Appellant.
    Division Two,
    February 12, 1910.
    1. ELECTION: Fraudulent Registration: Evidence. The secretary of the hoard of election, commissioners of the city of St. Louis is competent to testify that a general registration of voters in all the wards and voting precincts of said city was being neld on the day in September defendant is charged with falsely registering under a name other than his own.
    2. TREATMENT OF PRISONER: Taken to Prosecuting Attorney’s Office. The practice of hurrying a defendant, upon his arrest, to the office of the circuit attorney, does violence to American institutions and is to he condemned; hut if it does not appear that the defendant was injured thereby it will not constitute reversible error.
    3. REMARKS OF COUNSEL: Improper: Not Preserved in Motion. Remarks by the State’s attorney, in a prosecution for falsely registering under a name other than his own, that defendant “is nothing hut a rat and a thief” and that “he is worse than a thief,” go beyond the scope of legitimate argument; hut the error of the trial judge in holding them to he proper is not for review on appeal if not preserved in the motion for a new trial.

      4. _; -: -: Considered in Connection With Other Preserved Matters. Nor can said improper remarks he considered in connection with other alleged preserved errors, if such errors are not of themselves sufficient to work a reversal. There is no way to give an appellant the advantage of erroneous rulings not preserved for review, if no point properly preserved is of itself tenable.
    Appeal from St. Louis City Circuit Court. — How. Geo. H. Shields, Judge.
    Ajttkmed.

      G. Orrick Bishop for appellant.
    (1) The court erred in permitting the secretary of the board of election commissioners to testify, over appellant’s objection, that there was a registration of voters on the 14-th day of September, 1908, in all the wards and precincts of the city, when he had no personal knowledge of the fact, and without any evidence that the same was held in pursuance of any public notice or official action on the part of the election commissioners or pursuant to any law. (2) The language of the circuit attorney in his argument to the jury was reprehensible, and the court’s tacit permission of it grave error; hut I find upon examination of the record that the point was overlooked in the motion for new trial, and is probably not now here for review. I submit, however, that even though there may he some strong evidence of appellant’s guilt, there is enough in the record to show that he did not have the fair trial which the law accords him, and that the record also shows an effort to prejudice the appellant’s cause before the jury with the sanction and approval of the trial court.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    (1) The indictment in this cause is sufficient in form and substance. It follows the language of the statute, and fully informs appellant of the offense charged. Sec. 2120j, Laws 1903, p. 158; State v. Cummings, 206 Mo. 613. (2) The holding of a public registration is of such a character that any one being possessed of that knowledge can testify to such fact. Besides, if such evidence were incompetent, the records of such registration showing that there was a public registration held on the days above named, were afterwards introduced in evidence, and appellant was not prejudiced by the above ruling in any way.
   BURGESS, J.

By indictment duly lodged by the grand jury of the city of St. Louis, the defendant stands charged with falsely registering under a name other than his own, in violation of section 2120j, Laws of 1903, p. 158. Learned counsel for the defendant does not challenge the sufficiency of the indictment, and further note thereof need not he made.

Prom the evidence it appears that on the 14th, 15th, 16th and 17th days of September, 1908, there was a general registration of voters in the city of St. Louis, duly held in pursuance of the statutes of this State.

Defendant, who - by the evidence is shown to he Arthur Thavanot, and a resident of the sixth election precinct of the Fifteenth ward, appeared in company with another voter at the Tenth election precinct of the Fifteenth ward, at about 4 o ’clock of the afternoon of September 14th, and there being duly sworn to answer questions as to his qualifications as a voter in said voting precinct, in answer to such questions stated that his name was Sam Alberts, and that his address was 2100 Olive street. The proof shows that the defendant in fact lived at 1004 North Eighteenth street, and had registered on the morning of that day in the Sixth precinct of the Fifteenth ward, under his proper name. In other words, the evidence shows that his' name is as charged in the indictment, and was not Sam Alberts. Tbe evidence shows that he was a resident of the Sixth precinct of the ward, instead of the Tenth precinct. ¥e say that the proof shows these facts, for snch is the evidence in behalf of the State, and defendant contents himself with resting npon a demurrer to the evidence as offered by the State.

The questions in this case are practically all settled by the recent cases of State v. Tiernan, 223 Mo. 142; State v. Keating, 223 Mo. 86, and State v. Exnicious, 223 Mo. 61.

It is urged in this ease, as it was in some of the others, supra, that there was error in permitting John Ellspermann, secretary of the board of election commissioners, to testify to the fact that a general registration of voters in all of the wards and voting- precincts thereof was being held on September 14th and the three succeeding days. This point was expressly ruled upon in State v. Exnicious, supra. The offense charged in that case was, as is the one in this case, from the Tenth precinct of the Fifteenth ward. The evidence is largely the same. The admission of this evidence was proper, and the point is disallowed.

Another contention of the .defendant is that it was not shown that the place of registration was within the Tenth precinct of the Fifteenth ward. It would seem to appear that the board of election commissioners had a written contract for the use of a place at 2003 Olive street as a place in which to hold the registration office. This contract was offered, but was rejected on the ground that the owner’s name and signature were not identified. Upon this it is urged that there is no evidence that the registration was being conducted at that place. There is á mass of oral testimony that such was the registration place on the 14th day of September, 1908, and on the days herein-before mentioned. The judges and clerks were shown to be there. The registration books were there. The defendant, recognizing it as one of the places of registration, went there and did register, although under an assumed name. The boundaries of the precinct are shown in the record. With this evidence, we are not impressed with the contention made by' counsel for defendant, and such contention is ruled against defendant.

Other points in the case have been examined, and found without merit in so far as we can consider them. It does appear in the record that the defendant, upon being arrested, was hurried from the police station to the office of the circuit attorney. This practice should be condemned by all American courts. When a defendant is once arrested, he then represents one side of a prospective litigated question, and counsel for the State represents the other. The delicacy of the situation, from a professional standpoint, should dio-tate the opposite course from that followed in this case. Of course, if the defendant, being under arrest, indicated his desire for a conference with the counsel for the State, no impropriety could be charged, but for counsel for the State to have the defendant hurried from the place of his arrest to his own office does violence to the spirit of American institutions. It does not appear, however, that the defendant was injured thereby. He seems to have been equal to the occasion, and fully advised of the vicious practice aforesaid. No prejudicial error can, therefore, be predicated upon this contention.

The point is made that counsel for the State went beyond what should have been said in the course of legitimate argument. For reasons presently to be stated it will not be necessary to elaborate upon this question. In the course of his argument counsel for the State said: “I say to you that this thing aims at the very foundation of your government and mine; and I do not know, gentlemen, what this man’s politics are, and it don’t make any difference whether he goes out in the cause of Democracy or in the cause of the. Bepublicans, he is nothing hut a rat and a thief.” Upon objection, the court did say that the same should he sustained. But counsel for the State later said: “If a man steals something from you, that is in the way of tangible property, you can go out and replace it by your energy and industry, but when he steals your vote a man is stealing something that no person in the world can get back, and I say, and I believe (with the permission of the court) strictly within my rights, that he is worse than a thief.” This language the court held proper, and so stated at the time. Exception was duly saved to these remarks. Such language was beyond the scope of legitimate argument, and can only be accounted for on the theory of heated debate in cases of this character. However, whatever may have been the delinquencies of counsel in this regard, the error of the trial judge is not for review here, because the matter is not properly preserved in the motion for a new trial. Learned counsel for defendant recognizes this well-grounded rule, but urges that this matter, in connection with other alleged preserved errors, should be considered in determining whether or not the case should be reversed and remanded. This contention is urged with great force, but we see no way to give the defendant the advantage thereof.

The tenable points urged, in our judgment, are not sufficient to justify the reversal of this judgment and sentence, and the same are therefore sustained and affirmed.

All concur.


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    THE STATE v. J. E. NELSON, Appellant.
    Division Two,
    February 12, 1910.
    FAILURE TO INSTRUCT: On All the Law of Case: No Exception. Unless defendant at the time the court instructed the jury excepted to its failure to instruct on all the law of the case and intimated his objection to the court’s failure to instruct on the law of good character, that point is not for review on appeal, although assigned as a ground for a new trial in his motion.
    Appeal from Howell Circuit Court. — Ho». W. N. Evans, Judge.
    AFFIRMED.

      J. J. Cope for appellant.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
   FOX, J.

This is an appeal on the part of the defendant from a judgment of the circuit court of Howell county, convicting him of both burglary and larceny.

On December 8, 1908, the prosecuting attorney of Howell county filed an amended information, charging defendant with having burglarized, on July 30, 1908, the storehouse of one George L. Garoutte, located in the town of Mountain View, in said county, and also with having stolen certain merchandise therefrom, to the amount of thirty dollars or more. To the amended information as filed the defendant entered his plea of not guilty and was put upon his trial.

The facts developed upon the trial of this cause are substantially as follows:

The prosecuting witness, Garoutte, had a store in the town of Mountain View, and on the night of July 29th, or the morning of July 30th, some one with an auger bored boles around tbe lock of tbe store door, opened tbe same and stole some three hundred pounds of flour, a pistol and various other articles of’merchandise therefrom; also a bunch of keys belonging to the prosecuting witness.

The defendant was seen on the evening of July 29th in the town of Mountain View. It appears from the testimony that he had a team consisting of one horse and one mule, and a wagon, and was camped within a short distance of the town; that he left early on the following morning before the burglary of. the store was known to the owner. Defendant was arrested just after he had passed through the town of Summerville on his way to Dent county. At the time of his arrest two hundred pounds of flour, a pistol and a number of other small items of merchandise were found in defendant’s wagon, some of them hid in a sack and others hid beneath a quilt. At first defendant refused to permit his wagon to be searched, and also refused to permit himself to be searched. Immediately after his arrest, when passing a well, defendant was seen to throw something like a bunch of keys down into it. Thereafter the well was dragged and a bunch of keys was found therein, which keys were identified by the prosecuting witness as those stolen from his store on the night of the burglary. In defendant’s wagon was found an auger, which was taken back to Mountain View and there compared with the auger holes around the lock of the store door, which had been burglarized, and was found to be of the same size as the auger with which the holes had been bored.

Defendant, when passing through the town of Summerville, seemed to drive in a hurry, as though he feared his arrest.

Defendant testified as a witness in his own behalf ; admitted having camped at the town of Mountain View on the night of July 29th; admitted having the goods found in his possession, but stated that he found them in a pasture, near the road, a short distance north of Mountain View, early on the morning of July 30th, the morning following the night that the burglary and larceny had been committed. Defendant testified that he left Dent county on July 28th, and had visited a number of prospect mines in the locality of Mountain View. Some proof was given in evidence tending to prove a good reputation on the part of defendant, while some witnesses testified that they had heard some complaint as to defendant’s reputation around the town of Summerville, where he had once resided.

At the close of the evidence the court instructed the jury upon the charge as contained in the information, and gave the usual instruction as to the presumption of innocence and the necessity of the State establishing the guilt of the defendant beyond a reasonable doubt.

The cause was submitted to the jury upon the evidence and instruction of the court and they returned a verdict finding the defendant guilty of both burglary and larceny, assessing his punishment for the burglary at three years in the penitentiary, and for the larceny at two years in the penitentiary, of this State.

Timely motions for new trial and in arrest of judgment were filed, and by the court taken up and overruled. Sentence and judgment were entered of record by the court in accordance with the verdict as returned by the jury, and from this judgment the defendant has prosecuted this appeal, and the record is now before us for consideration.

OPINION.

The record before us presents but one assignment of error as a basis for the reversal of this judgment; that is, that the trial court failed to instruct the jury upon all the law involved in the case.

I.

Learned counsel for appellant insists that the court in its instructions failed to cover the subject of good character of the defendant. That is the only point urged by appellant for the reversal of this judgment.

At the very threshold of the consideration of that proposition our attention is directed to the bill of exceptions in which there is an entire absence of any preservation of the point now raised for the first time in this court. When the instructions were read to the jury counsel for the defendant did not even interpose an objection thaf the court had failed to instruct the jury upon all of the law involved in the case; nor was there an intimation or a suggestion that the court had so failed to direct the jury upon all subjects involved in the case.

The testimony as offered by the defendant as to his good reputation was so slight as to make it extremely doubtful as to whether or not it was to be treated as evidence at all upon that subject. The father of the defendant was called as a witness and he was asked the question as to whether or not he had ever heard anything said against this boy as being an honest, law-abiding citizen. His answer was that he had never heard anything until this cause came up. Now, while this court has held that is competent evidence upon the subject of good reputation, and we still hold that it is a very appropriate question to be propounded to persons living in the neighborhood, yet it is so unlikely that any one' would say anything to the father about the bad reputation for honesty and integrity of Ms son that it is extremely doubtful as to whether or not testimony of that character should be regarded as any substantial evidence of good reputation. However, we deem it unnecessary, upon the disclosures of the record in this cause to determine that 'question. The hill of exceptions failing to show any exception to the action of the court in not covering the subject of good character, and making no intimation or suggestion to the court of such failure, the point is not preserved and the defendant is in no position, to complain in this court. While it is true that one of the grounds alleged in the motion for new trial is that the court failed to- instruct upon all of the law of the case, yet unless the question was properly preserved in the hill of exceptions it cannot he made available by raising it for the first time in a motion for new trial. [State v. Carpenter, 182 Mo. l. c. 57; State v. Vinso, 171 Mo. 576; State v. Cantlin, 118 Mo. 100; State v. Espenschied, 212 Mo. l. c. 223; State v. West, 202 Mo. l. c. 137; State v. McCarver, 194 Mo. 742; State v. Groves, 194 Mo. l. c. 458; State v. Bond, 191 Mo. l. c. 563.]

II.

We have carefully examined the instructions as given by the court and find that they required the jury to find every essential element of the offense charged in the information. The testimony was practically all one way in this cause. It shows beyond any sort of question or doubt that the defendant is guilty of the offense charged. In our opinion no other conclusion could have been reached by the jury than the one which is announced in their verdict.

The record before us disclosing no reversible error, the judgment of the trial court should be affirmed, and it is so ordered.

All concur.