text:
    THE STATE v. HARRY LEVY, alias, Etc., Appellant.
    Division Two,
    November 24, 1914.
    1. FORMER CONVICTION: Under Eighteen Years of Age: Evidence. The transcript of the indictment and the judgment showing defendant has been convicted of burglary in another State, is not incompetent on the sole ground that defendant has testified that at the time of his conviction he was under eighteen years of age, and therefore under the laws of this State he could not have been sentenced to the penitentiary. The jury is never precluded by the oral testimony for either the State or defendant, and was not compelled to believe defendant’s testimony, though uncontradicted, that at the time of his conviction in that State he was under eighteen years of age . The transcript was competent evidence,' and if it be a fact that his serving of a sentence in the penitentiary of another State cannot be considered by the jury under the laws of this State, because at the time of his conviction he was under eighteen years of age, then his testimony raised an issue which could have been dealt with only by instructions.
    2. -: -: No Instruction: Not Raised By Motion for New Trial. If it be an error of the trial court to fail to instruct the jury that the fact, if it were a fact, that defendant was under eighteen years of age when convicted precludes the jury from considering his said former conviction in another State in assessing his punishment, it was an error of omission to instruct, and in order to be available to defendant on appeal his motion for a new trial should contain a specific assignment that the trial court failed to instruct on the point.
    3. --: -: Transcript: Not Properly Certified: Untimely Objection. An objection that the transcript of a defendant’s conviction in another State is not properly certified and authenticated under the laws of Congress, comes too late, if made for the first time after the transcript was admitted and read into the record. When improper evidence is offered it is the duty of the party who might be injured by its admission to object specifically then and there by informing the court why it should not be admitted.
    4. --: -: -: -: Admission of Attorney That Transcript is in Proper Form. Besides, if when the transcript of defendant’s conviction in another State was offered in evidence his attorney informed the court that it was “in proper form,” an objection that it was not properly certified and authenticated under the laws of Congress, made after it was admitted and read into the record, should be disregarded, since an admission made by an attorney in open court during the trial of a cause against the interests of his client is presumed to be true.
    5. ROBBERY: Instruction: Recent Possession. An instruction set out in paragraph three of the opinion, on the subject of recent possession of stolen money and the duty of defendant to explain his possession of' it, does not assume that the money found in possession of defendant was the identical money .stolen from the prosecuting witness, but requires the jury to find that the money found in defendant’s possession was recently stolen from such witness before they are permitted to presume that defendant was the party who stole it.
    6. MISCONDUCT OF PROSECUTING ATTORNEY: Statement of Facts Unable to Prove: Cured By Instruction. The misconduct of a prosecuting attorney will be weighed in connection with the facts of each case, and when the State’s case is weak it will require less misconduct on the part of the prosecutor to work a reversal than where the evidence of defendant’s guilt is strong. Where the assistant circuit attorney in his opening statement of the case against defendant charged with robbery, detailed to the jury certain alleged evidence of attempted bribery of the prosecuting witness, and after his failure to introduce such' promised evidence, the court properly instructed the jury to disregard the statements pertaining to such attempted bribery, the evil effect of such unwarranted statement was thereby cured, the evidence of defendant’s guilt being satisfactory.
    (. ROBBERY: Money: Coins and Bills: Identification: Presumption Arising From Possession. The prosecuting witness, as he boarded a street car, felt “an unusual disturbance” in. his trouser’s pocket. Before the car started he discovered his pocketbook was gone, and he immediately got off the car. A police officer, on the car, saw defendant hurry through the car and get off at the front end, and his suspicions were aroused, and he also got off in time to see defendant board another car going in the opposite direction. Upon being informed by the prosecuting witness that his pocketbook had been stolen, the officer followed defendant on the next car and overtook him at a cross street as he was coming towards the car track, and when asked what he was doing there he replied that he had gone to that cross street to see a lumberman, but had failed to find him. There was no lumber yard or office in that part of the city. The prosecuting witness testified that he had in his pocketbook when it was stolen, two twenty-dollar hills, one five-dollar bill and a ten-dollar gold piece dated 1902; .also five pennies which he had carried for some time as keepsakes, and that they were dirty and one of them of a dark color. When defendant was searched, in one pocket was found a roll of -one-dollar hills “nicely folded,” and in another two twenty-dollar bills and one five-dollar bill, not folded, but “all crumpled up,” and five pennies of the same color and description as those the prosecuting witness had in his pocketbook. No ten-dollar gold piece was found in his pocket, but when his underclothes were removed a ten-dollar gold piece dated 1902 fell out of them. The police office then went to the cross street where defendant was arrested, and about three hundred feet from where the arrest was made found the empty pocketbook. Held, that both coins and bills frequently become so discolored or worn as to give them a peculiar appearance by which they can be identified with reasonable certainty, and the stolen money was sufficiently identified to warrant an instruction on the presumption of guilt arising from possession of recently stolen property-
    Appeal from St. Louis City Circuit Court. — Hon. William T. Jones, Judge.
    Affirmed.

      Seebert G. Jones for appellant.
    (1) The court erred in permitting the introduc-' tion of illegal testimony and evidence against the defendant. , Sec. 6331, R. S. 1909; Sec. 905, U. S. Law, Appendix Mo. Stat. 1909; Barton v. Steel, 65 Mo. 611; Paca v. Dutton, 4 Mo. 371; Moyer v. Lyon, 38 Mo. App. 635. (2) The court erred in permitting the State to offer in the presence and hearing of the jury, illegal evidence against the defendant, and in permitting the assistant circuit attorney to detail before the jury in his opening statement an alleged attempt to bribe the prosecuting witness by a third party, not in any way connected with the defendant. State v. Horton, 247 Mo. 666; State v. Teeter's, 239 Mo. 485; State v. Prendible, 165 Mo. 329; State v. Fischer, 124 Mo. 460; State v. Thomas, 99 Mo. 257; State v. Rothschilds, 68 Mo. 52; State v. Danbert, 42 Mo. 242; State v. Marshall, 36 Mo. 400; State v. Schneider, 35 Mo. 533; State v. Wolf, 15 Mo. 160; State v Mix, 15 Mo. 153. (3) The court erred in instructing the jury as to the law of the case. R. S. 1909, sec. 5231; State v. Lackland, 136 Mo. 26; Menteer v. Fruit Co., 240' Mo. 186; Cahill v. Railroad, 205 Mo. 405; State v. Weinhardt, 253 Mo. 629; State v. Heath, 221 Mo. 565; State v. Bidstrup, 237 Mo. 273; State v. Shapiro, 216 Mo. 359. (4) The court erred in submitting to the jury the former conviction of defendant because there was no evidence upon which to base it. State v. Austin, 113 Mo. 542; State v. Shapiro, 216 Mo. 359.

      John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
    (1) . The trial court did not commit error in submitting to the jury an instruction on the former conviction of the appellant. It is argued that at the time the appellant was convicted in West Virginia he was under the age of eighteen years, and that in view of the statutes of this State (Sec. 1529, R. S. 1909), the appellant could not have been sent to the penitentiary. If it be assumed that the appellant testified to the truth and that his age was under eighteen in 1905> when he was convicted in Virginia, still the statute of this State does not exempt one from a penitentiary sentence although he commit the crime when under eighteen years of age. Under the decisions of this State, if the defendant at the time of trial and the verdict of the jury is under the age of eighteen, the court may delay the judgment and sentence until the defendant is over the age of eighteen, at which time judgment and sentence can be entered of record and the defendant sent to the penitentiary. Sec. 1529, R. S. 1900; State v. Townley, 147 Mo. 207. If, at the time the appellant was convicted in West Virginia when he stated he was under the age of eighteen years, he had been convicted in this State of the same crime he could have been sent to the penitentiary, and,' therefore, he was guilty of an offense punishable by imprisonment in the penitentiary. (2) A conviction of burglary'in West Virginia and a discharge after service of the sentence was shown by competent evidence. It is not necessary to rely upon the record from West Virginia for the proof of the prior conviction of this appellant in West Virginia. The appellant’s own testimony sufficiently proves that the appellant was charged with burglary-in Ohio county, West Virginia, on March 13, 1905, and that he was convicted, served his sentence and discharged from the penitentiary. This proof is all that is necessary to prove the former conviction, and the former conviction as admitted and proven by the defendant’s testimony in every respect coincides with the former conviction alleged in the information. It was further proven that the appellant at that time was going under the name of “Levy” and was convicted under that name. The decisions of this State and the statutes do not require that the former conviction be proven in any particular manner. Although the former conviction in this case was not perhaps proven correctly by the criminal court records of Ohio county, West Virginia, it was proven by the defendant himself. Former convictions can he proven by the testimony and admissions of the defendant. State v. Baldwin, 214 Mo. 302; State v. Court, 225 Mo. 615; State v. Carr, 146 Mo. 4. (3) Improper remarks in the opening statement do not constitute reversible error. This court has been loath to reverse judgments on account of- improper remarks of attorneys in the argument when the proof is clear, for the reason that in such cases a verdict of guilty would have been returned regardless of the improper remarks. State v. Dietz, 235 Mo. 332; State v. Iiarvey, 214 Mo. 403; State v. Church, 199 Mo. 606; State v. Hibler, 149 Mo. 478; State v. Summar, 143 Mo. 220. Improper remarks of the State’s counsel furnish no ground for reversal where .the court withdrew the remarks and instructed the jury to disregard them, State v. Wright, 141 Mo. 333; State v. Howard, 118 Mo. 145. Where counsel for the State does not persist in his version of the evidence, but submitted to the court’s correction, the judgment will not be reversed. State v. Kiser, 124 Mo. 651. (4) There was sufficient evidence of the appellants’ possession of recently stolen property to sustain the court in giving instruction number three. Instruction number three, on the subject of a presumption raised on account of the possession of property recently stolen, was proper in form and. in accordance with the decisions of this State. State v. Kelly, 73 Mo. 608; State v. Sidney, 74 Mo. 3901; State v. Owens, 79 Mo. 624; State v. North, 95 Mo. 615; State v. Bryant, 134 Mo. 249; State v. Walker, 194 Mo. 253; State v. James, 194 Mo. 277; State v. Hammons, 226 Mo. 604. The evidence sufficiently proves that appellant had possession of property that was stolen from the prosecuting witness, Dr. Burke.
   BROWN, J.

Defendant was charged with stealing a pocketbook containing $61.65 from one Doctor Burke on January 7, 1914, and also with having previously been convicted of the crime of burglary in the State of West Virginia, and, having been found guilty as charged, was sentenced to serve a term of seven years in the penitentiary. After unavailing efforts' to secure a new trial and to arrest the judgment he appeals.

The evidence on the part of the State tends to prove the crime charged against defendant, and is substantially as follows:

Defendant was seen standing in front of the union depot in St. Louis, Missouri, a few minutes before Doctor Burke came out of said depot and attempted to board a northbound 18th street car. Burke was carrying a valise and leading a sick woman, and while on the platform of the car he felt ‘ ‘ an unnatural disturbance” in his pants pocket. Before the car started he discovered that his poeketbook was gone and immediately got off the car. Bolice officer Stinger was on the same car and saw defendant hurry through the car and get off at the front end thereof. This act. of defendant aroused the suspicion of the police officer and he also got off the car in time to see defendant board another car going south on 18th street. Upon being informed that Doctor Burke’s poeketbook had been stolen the officer followed defendant on the nest car and overtook him at 18th and Gratiot street. When first seen at Gratiot ^street defendant was coming towards the street car track, and when asked by the officer what he had been doing he replied that, he had gone to Gratiot street to see a lumberman, but had failed to find him. He was then arrested for the alleged theft of Doctor Burke’s poeketbook and brought back to the depot, where he announced that he had plenty of money, but had not taken any from Burke. Burke testified that he had in his poeketbook when the same was stolen two twenty-dollar bills, one five-dollar bill and a ten-dollar gold piece dated 1902; also some smaller change, among which were five pennies that he had carried for sometime as keepsakes; that these pennies were, dirty and one of them of a dark color.

At the police station defendant was searched ond in one of his pockets was found a roll of one-dollar bills “nicely folded” and in another pocket was found two twenty-dollar bills and one five-dollar bill, not folded, but all “ crumpled. up; ” also some smaller change, including five pennies of the same color and description as those Doctor Burke had in his pocketbook.

When no gold was found in defendant’s pockets he remarked that he had no ten-dollar gold piece, and that Doctor Burke had lied in charging him with taking his pocketbook and money. However, the police officer continued the search and when defendant’s underclothes were removed a ten-dollar gold piece fell out of them. This gold piece bore the date of 1902.

The police officer then went back to Gratiot street, where he had arrested defendant, and, about three hundred feet from where the arrest was made, found Doctor Burke’s -empty pocketbook lying near some piles of lumber.

Defendant testified that he went out on Gratiot street to call on a lumberman for whom he had been selling lumber, but there was no lumberyard, or office in that part of the city. Defendant also stated that he recognized the ten-dollar gold piece found in his underclothes as the same coin on which he had made a small mark with an ice pick several months before he was arrested.

The defendant, further testifying in his own behalf, admitted that he had been convicted in Ohio county, West Virginia, of the crime of burglary, and that he had served a term in the penitentiary of that-State and had been discharged. He also testified that at the time he was so convicted he was under the age of eighteen years.

To save the space which would be consumed in repeating them, we will note the alleged errors assigned by défendant in connection with the conclusions we have reached.

I. After defendant rested, the State introduced what purported to be a transcript of an indictment presented against defendant in the criminal court of Ohio county, West Virginia, charging him „ , ° , ? with the crime ot burglary, which transcript also embraced a copy of a judgment showing that he was convicted, in said criminal court under the aforesaid indictment. Counsel for defendant objected to the introduction of this transcript on the sole ground that defendant was under the age of eighteen years when said judgment of conviction was entered, and that, under the laws of Missouri, if he had been convicted of committing. the same crime in this State while under eighteen years of age he could not have been sentenced to the penitentiary, but would have been sent to the reform school. That, therefore, the conviction in West Virginia could not be made the basis of a charge of former conviction, as provided by section 4914, Revised Statute 1909. The aforesaid transcript was admitted and defendant excepted; the transcript was thereupon read into the record by the circuit attorney. The court did not err .in admitting the tanseript over the objection made. There was no evidence of defendant’s age before the court except his own testimony, and the jury had the right to disbelieve that evidence if they thought the defendant had testified falsely.

If it is true, as asserted by defendant’s learned counsel, that a boy convicted of burglary in this State when under the age of eighteen years cannot be sent to the penitentiary, and that such conviction cannot' be treated as a former conviction as defined by section 4914, supra (a point which we need not and do not decide in this case), the defendant’s evidence that he was less than eighteen years of age when convicted in West Virginia raised an issue which could only have been dealt with by instructions. If defendant’s theory of the effect of his former conviction is correct, then it would have been proper for the trial court to have instructed the jury in substance that although they might find defendant had been convicted of the crime of burglary in the State of West Virginia, if they further found and believed that at the time of such conviction he was under the age of eighteen years, they should disregard such former conviction in determining the duration of his punishment in this case; and that- if they found him guilty of stealing the property of Doctor Burke, as charged in the information, they should fix his punishment at not less than two nor more than five years in the penitentiary. Defendant’s attorney insists that because defendant testified that he was under the age of eighteen when convicted in West Virginia and there was no other evidence of his age the court erred in submitting to the jury the issue of his former conviction. In this insistence he is in error, because a jury is never precluded by the oral evidence of either the State or defendant, and may always reject evidence which they'do not believe to be true.

The trial court omitted to instruct the jury in regard to the alleged fact that defendant was under eighteen years of age when convicted in the State of West Virginia; hence if it committed any error in that regard (a point which we do not decide) it was an error of omission to instruct, and not an error in any instruction given, consequently such alleged error should have been specifically called to the attention of the trial court in defendant’s motion for new trial.

Upon a careful inspection of defendant’s motion for new trial we find therein no specific complaint of the failure of the court to instruct upon this point, so that the issue raised, or attempted to be raised, by defendant’s testimony that he was under eighteen years of age when convicted in West Virginia is not before us for review, because not mentioned in the motion for new trial. [State v. Conway, 241 Mo. 271; State v. Dockery, 243 Mo. l. c. 599; State v. Sykes, 248 Mo. l. c. 712; State v. Sydnor and Foster, 253 Mo. 375.]

II.' After the aforementioned transcript was ad'noitted and read into the record by the circuit attorney, the defendant objected to it on the additional ground that it was not properly .certified and authenticated under the laws of the United States, which objection was overruled and an exception saved, which last ruling of the court is now urged for reversal. This insistence cannot be sustained because this objection came too late. "When first offered in evidence defendant’s attorney informed the court that the transcript was “in proper form.” When improper evidence is offered it is the duty of the party who might be injured by its admission to object specifically by then and there informing the court why such evidence should not be admitted. [State v. Pyles, 206 Mo. l. c. 632; State v. Crone, 209 Mo. l. c. 330; State v. Wellman, 253 Mo. l. c. 314.]

An admission made by an attorney in open court during the trial of a cause against the interest of his client is presumed to be true. [Pratt v. Conway, 148 Mo. l. c. 299; Walsh v. Railroad, 102 Mo. 582.] In Pratt v. Conway, supra, Judge Gantt, in speaking for this court, said:

“Courts are warranted in acting upon the admissions of counsel in the trial of a cause. They are officers of the court, and represent their clients, and their admissions thus made bind their principals.”

Certainly no court should be convicted of error for admitting and treating a document as properly certified when the complaining party by his own admissions had led the court to believe that it was “in proper form.”

III. Defendant also complains of instruction number 3 given by the court of its own motion, on the ground that it assumes that.the money found in possession of defendant was the identical money recently stolen from Doctor Burke. This instruction reads as follows:

“If you find from the evidence that the money, chattels and personal property or any part thereof mentioned in the information was stolen from the person of Milton C. Burke, and that recently thereafter snch property, or any part thereof, was found in the possession of the defendant, and that the circumstances connected with his possession, when first found in snch possession, were of snch a character as to demand of him an explanation of his possession, and that he failed to make snch explanation in a manner consistent with his innocence, then he is presumed to be the person who stole such property, and this presumption will be conclusive against him unless overcome or repelled by evidence, and the burden is on the defendant to adduce the evidence to overcome or repel snch presumption to your reasonable satisfaction, but not beyond a reasonable doubt, unless overcome or repelled by evidence introduced by the State.
“Such possession, to raise the presumption of guilt, must have been personal, recent, exclusive and unexplained and must have involved a conscious assertion of property by the defendant,-and if any one of these constituents is wanting, then such possession will not raise the presumption of guilt.
“If at the time the defendant was so found in the possession of such property, or any part of it, he gave an explanation which appears reasonable and probably true and consistent with his innocence, then before you can find him guilty -upon a presumption arising from such possession you must find beyond a reasonable doubt that such explanation was false.”

We do not think this instruction is subject to the criticism leveled against.it. It requires the jury to find that the property found in the possession of defendant was recently stolen from Doctor Burke before they are permitted to presume-that defendant is the party who stole the same.

IY. A further assignment of defendant is that the court committed reversible error in permitting the assistant circuit attorney in his opening statement of the case to detail to the jury certain alleged evidence of attempted bribery of the prosecuting witness. Of course, a prosecutor should not in his opening statement refer to evidence which he cannot legally introduce; but the trial court could not foresee what the evidence in the cáse would be, and after the prosecutor failed to introduce the promised evidence of attempted bribery the jury were properly instructed to disregard the statements of the prosecutor as to such attempted bribery. ■We think this cured the evil effect, if any, produced by the misconduct of the prosecutor in mentioning the alleged evidence which he was unable to introduce. It is undoubtedly true that when a prosecutor promises a jury to place before them certain evidence which he cannot or does not produce, his failure to make out the case which he has outlined in his opening statement is liable to prove a boomerang, so to speak, and lead the jury to believe that the charge has not been proven.

If the case was a very close one, and the conviction rested upon testimony that was unsatisfactory, we might consider this point as worthy of serious consideration, for, as we said in the cases of State v. Hess, 240 Mo. 147, l. c. 160 1; State v. Horton, 247 Mo. 657; and State v. Baker, 246 Mo. l. c. 376, the misconduct of a public prosecutor will be weighed in connection with the facts of each case, and when the State’s case is weak it will require less misconduct on the part of the prosecutor to work a reversal than where, as in this case, the evidence of defendant’s guilt is very strong. [State v. Helton, 255 Mo. l. c. 183.] This assignment is overruled.

Y. ^Defendant further insists that the evidence in this case was insufficient to warrant the giving of an instruction on the presumption of guilt which arises from the possession of recently stolen property, citing the case of State v. Sasseen, 75 Mo. App. l. c. 202. Of course, it is well known that a great number of bills and coins of each series issued by the United States are in circulation among the people, but that fact in this case only goes to the weight to be given to the State’s witnesses.

In the case of State v. Griffin, 71 Iowa, 372, there was found in the ice box of the defendant, a saloon-keeper, twenty-five dollars in gold coins of the same denomination as those stolen the day before from one of the patrons of the saloon. In that case the prosecuting witness claimed to be able to identify the coins found in defendant’s ice box by a small mark he had placed on them, and on this evidence it was held not error to submit to the jury the presumption of guilt arising from the unexplained possession of recently stolen property..

In the case at bar the minute description given by Doctor Burke of the gold coin and pennies found in defendant’s-possession, to my mind, points with more certainty to defendant’s guilt than did the alleged mark on the coins in the Griffin case, for the reason' that experience teaches us that it is quite an unusual thing for'anyone to actually mark or deface bills or coins, but both coins' and currency frequently become so discolored or worn by usage as to give them a peculiar appearance by which they can be identified with reasonable certainty.

The gold coin found in defendant’s underclothes, and which he tried to conceal, bore the same date as the one which was stolen from Doctor Burke, and the pennies found in his possession were dirty, and one of them of a dark color, the same as the five pennies which were taken from the prosecuting witness. The following additional cases tend to support the conclusions we have reached on this point: State v. Newhouse, 115 Iowa, 173; People v. Linn, 23 Cal. 150; People v. Wong Chong Suey, 110 Cal. 117. This assignment is also ruled against defendant.

We find no reversible error in the record of this case. Defendant was represented by resourceful counsel and had a fair trial. Let the judgment be affirmed.

Walker, P. J., and Faris, J., concur.


source: Caselaw Access Project

author: FARIS, J.

license: Public Domain

text:
    THE STATE v. JULIA CORRIGAN, Appellant.
    Division One,
    November 24, 1914.
    1. INSTRUCTION: Failure to Give Defendant’s: Covered by State’s: Enticing Female to Prostitution. In a prosecution for taking away from her father a certain female under the age of eighteen years for the purpose of - prostitution, it was not error to refuse to instruct the jury that if said girl went to the house of defendant with Lillian Cameron under the circumstances and conditions testified to by said Lillian the verdict must be for defendant, where the court instructed the jury that unless they found_ that the defendant took said girl from her father “for the purpose of prostitution as mentioned in this instruction, you will find her not guilty,” there being no proof óf a conspiracy or any connection between defendant and Lillian Cameron until prosecutrix was in defendant’s house; for, although it be conceded that said instruction, though a vicious comment on the evidence and therefore not in proper form, pertained to a proper matter of defense which was complete if Lillian Cameron’s testimony was true and therefore it was the duty of the court to give a proper instruction on the subject, yet the very substance of the instruction requested was embodied in the one given.
    2. --: Taking Away Girl for Prostitution: No Definition of Taking Away, Etc. An instruction telling the jury that if defendant did unlawfully and intentionally take away the fifteen-year old girl from her father, “for the purpose of prostitution, by having illicit intercourse with divers men,” etc-., thereby fully incorporating the language of the statute, is not erroneous because it does not go further and define the words "taking away for the purpose of prostitution” by stating that such taking away might have been accomplished by persuasion, enticement or inducement of money offered or means furnished by defendant; for, though said- additional explanation might have been proper in view of the evidence, if its omission was an error, it was one in defendant’s favor.
    3. CROSS-EXAMINATION OF DEFENDANT: Houses of Prostitution in Other Cities: Denied. Where, in a prosecution of an accused for taking away from her father a girl under eighteen years of age for the purpose of prostitution, the girl has testified that defendant stated to her at the time she entered her house in St. Charles that she had a house of prostitution in Jefferson City, it was not harmful error for the State to ask her on cross-examination if she had and run such a house in Jefferson City, a matter not mentioned in her examination in chief, where defendant answered that she had not. However, if defendant had admitted that she had or had run such a house in Jefferson City .a different case would be up for a ruling. And since no objection was made or exception saved to the State’s inquiry of her on cross-examination if she had run such a house in Columbia, the propriety of that inquiry cannot be considered on appeal.

      i. EVIDENCE: Testimony of Event Subsequent to Offense: Harmless Error: Presumption That Officer Performs Legal Duty. Where defendant was being prosecuted for taking a fifteen-year old girl away from her father for the purpose of prostitution, and a deputy sheriff was offered by the State for the purpose of showing, that defendant’s house was being operated by her as a house of prostitution some two or three weeks subsequent to the time the prosecutrix was taken therefrom, and the only testimony of said witness was that as such deputy sheriff he went to said house at the time indicated “with the intention of closing it,’’ leaving as an inference that he did not close it, the error in admitting the testimony was harmless; for, it being presumed that an officer performs his legal duty, the inference is that had the house been operated as one for prostitution he would have closed it, and that he did not close it because upon examination he found it was not being so operated, and therefore the error, in so far as it was not innocuous, was in defendant’s favor.
    5. -: Prior Good Reputation of Prosecutrix. It would be error to admit evidence on the part of the State of the prior good reputation of prosecutrix before the defendant had attacked her reputation. But testimony brought out by a cross-examination of the State’s witness to the effect that the loathsome disease which prosecutrix had when she was taken from defendant’s house of prostitution, was contracted before she went to said house, and testimony of defendant’s witness that prosecutrix was on her way to another house of prostitution when said witness persuaded her to go with her to defendant’s house, was as serious an attack upon prosecutrix’s reputation for chastity as would have been the offering of character witnesses to show her bad reputation for chastity, and authorized the State in rebuttal to show her reputation was good.
    6. -: Taking Away Girl For Prostitution: Intent. The gravamen of the offense of taking away from her father a girl under eighteen years of age for the purpose of prostitution, is the purpose or intent with which the taking away is accomplished; and intent is a hidden mental process, deducible in a criminal case especially, since the State may not use the defendant to prove it, from words or overt acts alone.
    7. --: -: -■: Shown By Sexual Acts. That the prosecutrix was taken away for the purpose of prostitution can in no way be more clearly shown than by the fact that she'was received into defendant’s house of prostitution, kept there by defendant, and when occasion offered sent by defendant to a room with a man who gave her money and had sexual inter-, course with her.
    8. -: -: -: -: Act of Rape. Nor need the act of sexual intercourse be shown to have been voluntary. The fact that it was accomplished by the forceful ravishment of the girl by a drunken man sent to her room by defendant, with all its ugly details, may be shown in evidence, as a part of the res gestae. Nor does the fact that the evidence of the rape and a recital of its details may add to the punishment imposed by the jury, render the evidence incompetent.
    9. --: -: -: -: -: Res Gestae: Accessory. The details of the force used by the drunken man, sent to prosecutrix’s room by defendant, are parts of the res gestae and are admissible against defendant, though the rape was done out of her immediate presence and not specifically commanded by her to be done. An accessory before the fact, who instigates the unlawful act, is liable; and if the acts are res gestae they are always admissible even though they show the commission of another crime committed in the accomplishment of the crime undertaken.
    Appeal from St. Louis City Circuit Court. — Eon. James E. Withrow, Judge.
    Affirmed.

      Bichará F. Ralph for appellant.
    (1) Defendant’s requested instruction should have been given, or, if the court deemed it improper in form, should have been treated as a request for proper instruction covering the subject-matter and it became and was the duty of the court to comply with the same. It is the duty of the court, made such by both statute and long established practice, to instruct the jury upon all questions arising in the case which are necessary for their information in giving a verdict, and a failure so to do has always been held as error; particularly is this true where a proper instruction is either offered or asked and the subject-matter particularly pointed out to the court at the time. State v. Clark, 147 Mo. 20. Just such an instruction was given and held proper in State v. Adams, 179 Mo. 339. An instruction of like nature was given by the court in State v. Gibson, 108 Mo. 579. And whenever it is the duty of the trial court upon a proper request tó instruct upon any question of law arising upon the evidence, it is equally obligatory upon it of its own motion to instruct the jury upon such a matter whether requested to do so or not. State v. Taylor, 118 Mo. 153. The asking of an instruction improper in form is in effect asking that a proper instruction upon the subject-matter be given. State v. Stonum, 62 Mo. 596; State v. Patrick, 107 Mo. 172. (2) The prosecutrix, in connection with the alleged act of intercourse had by her, was allowed to testify, over objection, as to the amount of pain it caused her, where she felt the pain, what kind of pain it was, as to her body being bloody or not; in short, all details-that would ordinarily be asked a prosecutrix where the defendant stood charged with the crime of rape. These matters did not and could not enter into the essence of the offense charged against the defendant and could only have been offered for the sole purpose of inflaming the minds of the jury, appealing to their passion and prejudice. (3) The court erred in allowing witness Rupp, deputy sheriff, to testify regarding a visit he made the home of defendant in 1913, some two months after the acts charged against the defendant are said to have been committed, and in attempting to close the honse. He may have attempted to close it, honestly thinking it to be a house of prostitution, and may have been mistaken. "What he thought or what he did concerning the house in January, 1913, did not have the slightest bearing upon what may have occurred there in December, 1912. (4) The court erred in allowing the defendant to be cross-examined regarding matters in noways arising from her examination in chief and regarding matters totally irrelevant to any issue in the case, over objection, and the State’s attorney was permitted to interrogate her repeatedly as to her running a house of prostitution in Columbia, and as to her running a house of prostitution at Jefferson City, such cross-examination not being predicated upon the testimony of any witness and not growing out of the testimony of the defendant in chief in any manner, shape,. or form. That such testimony was prejudicial to the defendant is apparent, assuming as we must, that the jury was composed of clean minded men; the very nature of the offense charged would tend to some extent to prejudice them and this testimony could not fail to increase that prejudice and to more highly inflame their passions. State v. Lovitt, 243 Mo. 520. (5) The court erred in allowing the State to introduce evidence in rebuttal regarding the reputation of prosecutrix; her reputation had in nowise been attacked by the defense and the only shadow of excuse that can be assigned in justification of the court’s action is that Lillian Cameron, a witness for defendant, testified that she met prosecutrix on the street and prosecutrix told witness that “she intended to go out on Lucas avenue that day.” This we submit was not an attack upon the reputation or character of prosecutrix; the court could not assume that such language, as a matter of fact, indicated any evil or unlawful intent or purposes on the part of prosecutrix nor could the jury place any such construction upon it.

      Jolm T. Barker, Attorney-General, and Lee B. Ewing, Assistant Attorney-General, for the State.
    (1) The instructions fully cover the case and follow approved precedents. State v. Baldwin, 214 Mo. 290; State v. Jones, 191 Mo. 652; State v. Adams, 179 Mo. 337. (2) The evidence in this cause shows a taking away from the custody of the parents, within the meaning of the law, within the city of St. Louis. Therefore, the circuit court of that city had jurisdiction of this case. State v. Johnson, 115 Mo. 480; State v. Bussey, 58 Kan. 679. (3) The evidence was amply sufficient to support the verdict and showed that defendant was guilty of the commission of the crime charged, in the city of St. Louis. State v. Baldwin, 214 Mo. 290; State v. Johnson, 115 Mo. 480; Kelley’s Crim. Law & Prac. (3 Ed.), sec. 550; State v. Bussey, 58 Kan. 679; People v. Crook, 61 Cal. 478; State v. Jami-son, 38 Minn. 21; State v. Chisenkall, 106 N. C. 676. (4) The testimony of Lillian Cameron was such an assault upon the reputation of prosecuting wdtness as to justify the court in admitting testimony in rebuttal-tending to show the good reputation of prosecutrix for chastity and virtue. State v. Lovitt, 243 Mo. 510; State v. Dip-ley, 242 Mo. 476; State v. Jones, 191 Mo. 653. If there was any error in the cross-examination of defendant as to whether or not she had said she was going to send prosecutrix to Jefferson City, the error was harmless. State v. Foley, 247 Mo. 635; State v. Barrington, 198 Mo. 77.
   FARIS, J.

From a conviction in the circuit court of the city of St. Louis of a violation of section 4476, and a sentence therefor to imprisonment in the penitentiary for a term of five years, defendant, after the usual motion for a new trial, has appealed.

The specific charge is that defendant took away one Rosa Ronthiser, a female under the age of eighteen years, from her father for the purpose of prostitution.

Such of the facts in the case as are necessary to understand the points raised by the appeal and discussed in the opinion, are as follows:

Rosa Ronthiser (called hereafter for brevity, the prosecutrix) resided with her parents in the city of St. Louis and was at the time of the commission of the alleged offense not quite fifteen years old. She had studied stenography and in the latter part of November, 1912, while in the waiting room of Schaper Brothers in said city, was accosted by defendant who asked her if she wanted a position. She replied in the affirmative and added that she was willing to do almost anything. Defendant asked her thereupon what she meant, and prosecutrix replied that she was a stenographer looking for employment. Defendant then said to her, “If yon are looking for employment you can come out to my house to work;” advising her that her house was in St. Charles, Missouri, and that in order to reach there prosecutrix should take a Wells-ton car, get off at the end of the line and go into a candy kitchen located there and say she was going to Julia Corrigan’s house and that car fare would thereupon be given to her. Prosecutrix did not at the time accept this offer, but within a few days thereafter, namely on Wednesday, December 4, 1912, she left her home, went down town in the city of St. Louis, there took a Wellston car, rode to the end of the car line, made inquiry at the candy kitchen, where, she received twenty-five cents from a Greek in charge of the store. She then took a car to St. Charles and went to the house of defendant, which the proof shows to have been at the time, and since, and for a long time prior, a house of prostitution, wherein she was admitted by the defendant, who took her into a room, took her outer clothing off, put a short apron on her and told her she must get used to- everything, as defendant was later on going to send her to Jefferson City where she likewise had a house.

In the house of defendant there were, besides prosecutrix, five or six other girls. This house contained a dance hall with benches about the wall and was furnished with an electric piano. In this hall while prosecutrix remained at defendant’s house, the girl inmates and divers men who came there, engaged in dancing. On Friday morning, December 6, 1912, following the advent into this house of prosecutrix, a roughly dressed man, partially drunk, and whose name is unknown, came to defendant’s house and she sent him up to a bedroom. Defendant then sent prosecutrix up to this room, where the latter received two dollars from the man. Prosecutrix was then sent back to this room by the defendant and the man therein threw prosecutrix upon the bed and had forcible sexual intercourse with her. The details of this rape are shown in full and at length in the record. To the admission of these details as well as to the fact of rape, defendant strenuously objected and now makes serious contention that such admission is reversible error.

From the intercourse had with this strange drunken man prosecutrix contracted a serious sexual disease, although some considerable effort was made upon the trial to show by a physician, one Dr. Fiegenbaum, who examined and prescribed for prosecutrix, that her infection with this disease could not have occurred at the time of her intercourse in the house of defendant, but that she must have been infected prior to her going to defendant’s place.

On the following day the mother and father of prosecutrix having learned that she was at St. Charles in the house of defendant, went out there, found her and took her back home.

The testimony offered by the State as tending' to jurove that defendant’s house was a house of prostitution both prior, at the time and after prosecutrix went there, though denied by defendant, is abundant, and by palpable inference is admitted by defendant herself in her testimony. We need not, therefore, set out the details of proof showing such character of defendant’s house.

One P. L. Rupp, a deputy sheriff, was offered by the State for the purpose of showing that defendant’s house was being operated by her as a house of prostitution some two or three weeks subsequent to prosecutrix being taken from there. Objection'was made by defendant to the competency of this proof, though the record discloses that all of the testimony given by said Rupp as to the character of defendant’s house, consisted in his stating that he as deputy sheriff “went there on January 8, 1913, with the intention of closing it.” He does not state what sort of a house it was, nor does the record show whether he closed it or not, except in so far as his language quoted would indicate ; and this language by the most obvious inference, indicates that he did not close it.

Testimony on behalf of defendant shows that one Saminos, a Greek employed in the candy kitchen at the end of the car line, gave prosecutrix twenty-five cents to pay her car fare to St. .Charles, and that this money had been left at the candy kitchen by defendant with instructions that it was to be given to a little girl who would call for it. The testimony of defendant diametrically contradicts that of prosecutrix as to the manner of, and the inducements which led to the latter’s going to the house of defendant, and tends to show that she went accompanied by another girl, one Lillian Cameron. The latter testified for defendant that she met prosecutrix down town in St. Louis on the morning prosecutrix went to defendant’s house; that proseen-, trix told her she was going out on Lucas avenue to become an inmate of one of the houses of prostitution, which the witness says were then situated on that street, and requested the said Lillian to accompany her. This the Cameron girl refused to do, but induced prosecutrix to go with her to the house of defendant at St. Charles. There was some corroboration from other witnesses, who ought to have been disinterested, that prosecutrix had gone to defendant’s house with the Cameron girl, and had not, as prosecutrix herself ■swears, gone there alone. This, however, was for the' jury and since they evidently found contra, we need not follow it further.

Defendant testifying for herself denied that she ever saw prosecutrix until the latter came to her house in St. Charles on the morning of the 4th of December, accompanied, defendant swears, by the Cameron girl; that the two girls advised her that they would like to board with her for a week or two; defendant asked, “Who is this little girl?” referring to prosecutrix, and was told that her name was Ruth Roberts. Defendant then said that, she didn’t like to do anything like that, “this little girl looJts too young.” Defendant also denied that her house was, or had ever been a house of prostitution, or that she had ever been a sporting woman, or that she had ever sent prosecutrix to a room with any man, as shown by the State, or that any man had intercourse with prosecutrix while the latter was in defendant’s house. In the cross-examination of defendant she was asked over the objections and exceptions of her counsel, whether she had ever kept a house of prostitution in Jefferson City. She denied that she had ever done so-and contradicted in this behalf the testimony of prosecutrix and another witness. Defendant was also asked in her cross-examination if she had not kept a house of prostitution at Columbia, Missouri. This she likewise denied; but to this question and answer neither an objection nor an exception was lodged.

In rebuttal the State, over the objections and exceptions of defendant, introduced testimony to show the good reputation of the prosecutrix for chastity and virtue. In the court’s instructions he limited the probative effect of this evidence tó a consideration thereof by the jury for the purpose of determining prosecutrix’s credibility alone. Defendant asked the following instruction, to-wit:

“The court instructs the jury that if they believe from the evidence in this cause that the witness, Rosa Routhiser, went out to St. Charles to the house of the defendant, Julia Corrigan, with Lillian Cameron under the circumstances and conditions testified to by said Lillian Cameron, then they shall return a verdict finding the defendant not guilty.”

This statement of the facts will, we think, serve to make clear such points as we find it necessary to discuss in the subjoined opinion.

OPINION.

Many reasons are urged upon us for the reversal of this case. In the last analysis we may tabulate these generally under three heads, with subdivisions thereof, viz.: Alleged error: (1) in refusing to give the instruction offered by defendant, which we have set out in the statement; (2) in failing to instruct on all of the law of the case, and (3) in the admission of testimony: (a) in the unwarranted cross-examination of defendant; (b) of the sheriff, that the defendant ran a house of prostitution in January, 1913, at the identical house and place where prosecutrix was in December, 1912; (c) of the reputation of prosecutrix for chastity, and (d) of the details of the forcible sexual intercourse had with prosecutrix. Let us look at these in their order.

I. It will be noted that in substance this refused instruction tells the jury that if they find that prosecutrix went to the house of defendant with the witness Lillian Cameron under the circumstances testified to by said Cameron woman, the verdict should be not guilty. The brief of learned counsel for defendant concedes in effect that this instruction as requested was not in proper’ form, but that the idea of it was a proper matter of defense, which it was the duty of the court to embody in a properly couched instruction to the jury. We think we may safely concede both this concession of fact and this contention of law. It was clearly a most vicious comment on the evidence in the form offered; but a complete defense if the jury believed it to be true. But had not the court in a converse sense already submitted the exact defensive thought of this instruction to the jury? We think that it had when it told the jury that unless they found “that the defendant took Rosa Routhiser away from her father Nathan Routhiser for the purpose of prostitution as mentioned in this instruction, you will find her not guilty.” Palpably, if defendant took her away, Lillian Cameron did not and vice versa, for there was no proof in the record of any conspiracy, or connection, between the defendant and the Cameron girl till prosecutrix was in defendant’s house. We are constrained to disallow this contention.

II. The specific error urged upon us touching the alleged defects in the instructions given by the court is that the court failed to define what constituted a “taking away” of prosecutrix for the purpose of prostitution, within the meaning of the statute.

The pertinent language of the statute which defines and denounces this crime is: “Every person who shall take away any female under the age of eighteen years from her father . . . for the purpose of prostitution . . . shall, upon conviction thereof, be punished by imprisonment in the penitentiary not exceeding five years.” [Sec. 4476, R. S. 1909.] The language of the instruction number one given by the court nisi, read upon this point, thus: “If . . . you believe and find from the evidence that . . . the defendant Julia Corrigan did unlawfully and intentionally take one Rosa Routhiser away from her father, one NathanRouthiser, for the purpose of prostitution, by having illicit intercourse with divers men,” etc. It will be seen that the instruction followed the language of the statute which defined the offense. Was it here required to go further and define the words which defined the offense? Reverting for a little more light to the facts in proof, we note that defendant at Schaper' Brothers in St. Louis, late in November, 1912, met prosecutrix and asked her if she wanted a position; prosecutrix said she did and was willing to do almost anything. Defendant inquired what her answer meant, and prosecutrix said to her she was a stenographer, looking for work. Defendant then said, “If you are looking* for employment you can come out to my house to work,” and continuing gave prosecutrix information as to where the the house of defendant was and how to reach it and offered to and did provide car fare for her by leaving with a man in. a candy kitchen at the end of the Wellston car line, twenty-five cents to be given to prosecutrix when she asked for it. Prosecutrix on December -4th, following, left home, got the car fare left by defendant with the candy kitchen man at the end of the car line, went to St. Charles and to the house of the defendant and was received therein as an inmate. This evidence in our opinion fully met the re-quirements of the statute as to what constitutes a “taking away” within the purview thereof. Raising without the necessity of again deciding (State v. Miller, 93 Mo. 263; State v. Frank, 103 Mo. 120; State v. Murphy, 118 Mo. l. c. 16) whether where an offense is defined by statute in words which are not technical and which are to be understood in their plain and ordinary meaning, the court nisi must yet define these words which define the offense, we are yet fully convinced that in no way were defendant’s rights prejudiced by the failure of the court here to tell the jury that “in order to constitute a taking by the defendant under the law, it is not necessary that the defendant should have used any force or have exercised any physical control over the girl in taking her away, or have been personally with her at the time of her leaving, or have gone in person with her; it is sufficient if defendant procured or caused her to go away by any persuasion, enticement or inducement offered, exercised or held out by defendant to the girl, or by furnishing her the means or money with which to go 'away. It is not nec essary that the persuasion, enticement or inducement should have been made or offered or the money or means furnished, at the time of the girl’s leaving*; but if the defendant, for the purposes charged, persuaded or enticed or offered inducements to the girl to leave her father and furnished her means with which to go away and she did not go away at that time, but went away at a subsequent time, and such going away was caused by and was the result of the persuasion, enticement or inducements offered or money or means furnished by the defendant, such facts would show a taking away within the meaning of the law.” [State v. Bussey, 58 Kan. 679.]

If some such instruction as the above had been given for the State we must needs have held it good upon the statute and the facts here, but we opine that the defendant would have objected strenuously to its being given. As the matter was left by the court the jury might well have been led to believe that either physical control and personal presence and a present, as distinguished from a future, going away was an absolute prerequisite to conviction. Be all this as may be we are not able to perceive wherein the omission of the court to define “taking away” as such taking away was shown by the proof here, harmed defendant. On the contrary, a proper definition running with the facts would in our . judgment have hurt her case with the jury, and. the failure to define these words might well have aided her case. It is of no legal force, that the sequel shows that it did not help the case.

TTT. Which brings us to alleged error predicated upon the admission of incompetent evidence for the State. The first complaint made is that the State was allowed by the trial court to cross-exnamine the defendant, who took the stand in her own behalf, as to her running and having houses of prostitution in Columbia and in Jefferson City. Clearly this was not mentioned by her in her examination in chief. So it is error and presumptively hurtful to her case. Pretermitting the statutory permission to impeach a defendant who takes the stand “as any other witness in the case” (Sec. 5242, R. S. 1909), and the well-settled means of impeachment by showing by the accused himself, practically always dehors his or her examination in chief, the fact that he or she has been convicted of some crime (State v. Blitz, 171 Mo. 530), were these questions harmful to defendant here? We think not. She denied having such houses, or having had houses of prostitution in either Columbia or Jefferson City. The prosecutrix had already sworn that defendant told her that she had a house of this character in Jefferson City. These questions gave the defendant the opportunity to deny the testimony in this behalf of the prosecutrix and thus to blunt the force of any comment which the State might make in argument, and any inference which the jury might have drawn from defendant’s silence. [State v. Larkin, 250 Mo. 218.] If defendant had admitted that she had, or had run such a house in Jefferson City, a different case would be before us.

To the inquiry as to defendant’s having a house of prostitution in Columbia neither objection was made nor exception saved by ber,* so we need not consider tbis.

IV. Tbe deputy sheriff was permitted to swear over defendant’s objection that as such officer be went to tbe said bouse of defendant in January, T913, “with tbe intention of closing tbis bouse.” He nowhere says whether be closed it or not: nor does he say what sort of house it was. For aught that appears to tbe contrary in tbis record, though be went for tbe purpose of closing it, tbe benevolent and beneficent character of it, upon a closer and more careful scrutiny, may have worked upon tbis officer in-such wise as to have stayed bis intention. At any rate bis intention was stayed; inferentially, be did not close it, and be gives no reason for not doing so. Conceding* that tbe mental attitudes and intentions of the sheriff and bis deputies are in no way binding upon the defendant, and that tbe question was highly improper, we are still not able to see bow she was hurt in any way by bis answer. All presumptions of right, legal and proper action being indulged in favor of tbe view that tbis officer did bis duty, we are confronted then by tbe conclusion that if tbis bouse was in January, 1913, being operated by defendant as a bouse of prostitution, tbe officer would have closed it and would not upon a more intimate examination have abandoned bis intention so to do. Being forbidden by tbe authorities to reverse a case for innocuous error, or error helpful and not hurtful to defendant, we disallow tbis specific contention. [State v. Thornhill, 174 Mo. 364; State v. Hunter, 181 Mo. 316.]

V. Complaint is likewise lodged that evidence of the prior good reputation of prosecutrix for chastity was admitted by tbe court to bolster up ber reputation, before tbe defendant bad attacked it. If tbis were true upon the record it is error, and we mxis^ reverse this case. But the record shows that while much evidence was offered hy the State to holster up prosecutrix’s reputation, all such offerings were in rebuttal, and made after the defense had strenuously sought to show by cross-examination of the witness Dr. Feigenbaum, that prosecutrix, an unmarried girl, had contracted or must have had a revolting sexual disease before she went to the house of defendant; and likewise after the witness Lillian Cameron had sworn that prosecutrix had importuned her to go with prosecutrix to a house of prostitution on Lucas avenue in St. Louis and become an inmate thereof. Manifestly, testimony of this character was just as surely, and more seriously, an attack upon the reputation of prosecutrix for chastity as would have been the offering of character witnesses to show her evil reputation in that behalf. In the light of such an attack the State in rebuttal was permitted to offer countervailing testimony of prosecutrix’s good reputation. [State v. Speritus, 191 Mo. 24; State v. Jones, 191 Mo. 653; State v. Maggard, 250 Mo. 335.] Both in reason and upon authority, this contention is not tenable upon the facts in this case.

VI. This brings us to the last and most serious contention of defendant, viz.: that it was error, greatly harming defendant’s case and accounting by patient inference for the extreme penalty of the law which the jury inflicted on her, to permit prosecutrix to relate before the jury the. revolting and heinous-details of the rape committed on her by the unknown drunken visitor at defendant’s house. The point is a new one in this State.

G-oing hack as a basis for some of the things which we shall say, we observe that it is well-settled that under our statute defining this offense, the gravamen of the charge is the purpose or intent with which the “taking away” is accomplished. [State v. Adams, 179 Mo. 334; State v. Richardson, 117 Mo. 586; State v. Knost, 207 Mo. 18; State v. Beverly, 201 Mo. 550; State v. Baldwin, 214-Mo. l. c. 308.] Intent is a hidden mental process, deducible in a criminal case especially, since the State may not use the defendant to prove it, from words or overt acts alone. "We do not find here in this record, nor would we ordinarily expect to find in any record, any language of the defendant clearly stating or admitting that the intent in taking away a girl under the age of eighteen years, was for the purpose of prostitution. This intent, which the cases hold is the gist of the offense, must then of necessity be inferred or deduced from other facts or acts in proof, just as in a sense we reason in cases of circumstantial evidence alone. That prosecutrix was taken for the purpose of prostitution can in no way be more clearly or conclusively shown than by the fact that she was received into a house of prostitution, kept there by the defendant and when occasion offered sent by the defendant to a room with a man who gave her money and had sexual intercourse with her. So far and to the extent that voluntary sexual intercourse may be shown as an act from which the intent of prostitution may be deduced, we do not understand defendant as contending. The law to .this extent is well-settled at any rate. [State v. Johnson, 115 Mo. 480; State v. Bobbst, 131 Mo. 328; 1 Cyc. 158.] The admissibility of the fact of voluntary intercourse for the purpose of showing intent being thus settled by the ruled cases, does it lie in the mouth of defendant to object to the fact of that rape, or to the details thereof, however heinous, which it became necessary to perpetrate on the prosecutrix in order to accomplish that identical intercourse, for which defendant received the price and for which she sent prosecutrix in unto the drunken man? We think not, and we know of no rule of law or logic which would so hold. This identical question was before the Court of Appeals of New York in the case of Schnicker v. People, 88 N. Y. 192, which was a a case almost on all-fours with the facts here. There it was held that the details of the force used in consummating the sexual acts, were parts of the res gestae and admissible against the defendant, though done out of her immediate presence and not specifically commanded by defendant to be done. The point is akin to that which holds an accessory before the fact liable, when the principal by instigation of an accessory robs another and in that robbery, to accomplish it, commits murder. [State v. Rader, ante, p. 117.]

So, while it is probable that a part of the extreme penalty visited upon defendant is attributable to the fact that the sexual intercourse with prosecutrix for which defendant sent her in unto the drunken man to be consummated, and for which defendant received the price, was accomplished with force, this is but one of the misfortunes directly arising from her own criminal machinations, and is a part of the res gestae. Acts which are res gestae are always admissible, even though they may show the commission by defendant of another crime or other crimes. [State v. Anderson, 252 Mo. 83.] Therefore we disallow this contention.

Having thus examined all of the points made by defendant and finding neither in them nor in the record any reversible error, and being thoroughly convinced of the guilt of defendant, we affirm the case. Let this be done.

Walker, P. J., and Brown, J., concur.


author: BROWN, J.

text:
    THE STATE v. CHES. CURTNER, Appellant.
    Division Two,
    November 24, 1914.
    1. ASSAULT: Decree: Instruction. Section 4482, Revised Statutes 1909, does not purport to include any class of assaults except those for which no punishment has been prescribed by preceding sections, and as the crime of assault with intent to kill by shooting at a human being is specifically prohibited and the punishment therefor prescribed by section 4481, it is not error to decline to instruct upon the crime of assault denounced by section 4482 where defendant is charged with the offense denounced by section 4481.
    2. IMPEACHMENT OF WITNESS: Statement out of Court. Statements made by a witness out of court in conflict with his testimony for the State cannot be used to contradict or impeach the witness unless he is asked while giving his testimony if he made the alleged contradictory statements.
    3. EXCLUSION OF EVIDENCE: Cured by Subsequent Examination. Error in excluding evidence of the details of a difficulty between defendant and the prosecuting witness prior to the shooting, is cured by the adroitness of defendant’s counsel in eliciting from the witnesses offered the full details of the prior difficulty.
    4. EXHIBITING WOUNDS TO JURY. It is not error to permit the prosecuting witness to exhibit his wounds to the jury, .in a prosecution for assault with intent to kill by shooting with a shotgun, whereby said witness lost his eyesight. Such evidence may tend to create prejudice in the minds of the jury, but they have a right to know the result of the assault as an aid in arriving at the proper punishment to be fixed.
    5. EXCESSIVE PUNISHMENT. A verdict assessing defendant’s punishment at seven years’ imprisonment in the penitentiary for an unprovoked assault with intent to kill, where after a quarrel in the public road with the drunken prosecuting witness he bought shells, borrowed a shotgun, and shot him in the face, as a result of which he lost his eyesight, does not indicate such malice or prejudice on the part of the jury as authorizes a new trial.
    Appeal from Pemiscot Circuit ■ Court. — Mon. Frank Kelly, Judge.

      Affirmed.

      A. L. Oliver for appellant.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
    (1) When an instruction is desired on a particular subject, the trial court’s attention should be directed specifically to its failure to instruct thereon. State v. Groves, 194 Mo. 458; State v. McCarver, 194 Mo. 742; State v. Conway, 241 Mo. 288. (2) This court cannot review instructions if no exception is saved at the time by the defendant to action of the trial court in overruling his motion for a new trial. State v. Penland, 199 Mo. 154; State v. Irwin, 171 Mo. 558; State v. Harvey, 105 Mo. 316. (3) Where, as in this case, the evidence on the part of the State, if true, shows an assault with intent to kill, with malice aforethought, and the evidence of defendant, if true, establishes a case of self-defense it is not error to fail to instruct on a lower grade of assault. State v. Robb, 90 Mo. 34; State v. Schloss, 93 Mo. 366; State v. Mu-sick, 101 Mo. 270; State v. Doyle, 107 Mo. 42; State v. McGuire, 113 Mo. 675; State v. Johnson, 129 Mo. 30; State v. Barton, 142 Mo. 455; State v. Grant, 144 Mo. 67; State v. Drumm, 156 Mo. 220; State v. Higgerson,' 157 Mo. 402; State v. Bartlett, 209 Mo. 406; State v. Myers, 221 Mo. 615. (4) It was competent to show that there had been a former difficulty between the parties, but the details thereof, are not admissible. It is not competent to go into the character of a difficulty so far removed from the difficulty as to be a separate one. Threats made during a prior difficulty are admissible. State v. Hale, 238 Mo. 508; State v. Birks, 199 Mo. 275; State v. Heath, 237 Mo. 272; State v. Heath, 22T Mo. 595. (5) Threats made by defendant against the prosecuting witness are competent to show malice on the part of defendant toward the witness at the time of the shooting. State v. Whitsett, 232 Mo. 528; State v. Bailey, 190 Mo. 284. (6) Appellant in this case was guilty of an assault to kill and it is a great wonder that a more severe punishment was not assessed against him. He made preparation to kill the prosecuting witness, and had the shotgun been charged with larger shot, would undoubtedly have succeeded.
   BROWN, J.

Adjudged to serve a term of seven years in the penitentiary for assaulting with intent to kill one Lonnie Howell, defendant appeals to this court.

On February 9, 1912, defendant met Lonnie How-oil and his father-in-law, Bud Rockett, at the town of Braggadocio,-Missouri. All these parties lived on nearby farms and had walked to town. A heavy snow was falling.

Howell and Rockett became drunk and talked and acted boisterously. They engaged in a quarrel with defendant because the latter made some remark about their Being drunk when one of them fell in the snow.

Howell cursed defendant and threatened to shoot him unless he shook hands and made friends. There is no evidence that any of the parties were armed at that time, though there is some evidence that Howell placed his hand in his pocket as if to draw a revolver at the time he made the threat before mentioned. After shaking hands with defendant, Howell and Rockett started home slowly, staggering along the road arm in arm.

According to the testimony on behalf of the State, as soon as Howell and Rockett left town, defendant, who was sober, went into a store and called for shotgun shells; on being informed that the merchant had none except those loaded with number eight shot, defendant remarked that he wanted larger shot, but, being in a hurry, would take ten cents worth of the shells offered to him. He received three shells loaded with number eight shot.

Immediately after procuring the shells defendant went to the home of his sister, a few blocks distant, to borrow a gun. To her he was heard to say, “I’ll shoot him if I have to borrow a gun.” Failing to procure a gun at the home of his sister, defendant visited two other parties in Braggadocio, where he made unsuccessful attempts to borrow a shotgun.

He then followed Howell and Eockett down the road at a rapid gait. While Howell and Eockett were walking around a wagon which they met in the road, defendant, apparently unobserved, ran around the opposite side of the wagon and got ahead of them.

After going a short distance further defendant went into the home of one Hatley, where he again asked to borrow a shotgun. Hatley’s boy replied that he had a Winchester shotgun, but that he intended to use it hunting rabbits as soon as he could go to town and get some shells. To this statement defendant replied that there was a rabbit out on the road between Hatley’s house and town which he wanted to kill.

Defendant and young Hatley then loaded the shotgun with defendant’s three shells and started to town, Hatley carrying the gun. After going a very short distance they met Eockett and Howell, and, when they were about thirty feet from the latter, defendant took the gun from the Hatley boy, and, without saying a word, shot Howell in the face, inflicting severe wounds and completely destroying his eyesight. Howell testified that he had his hat pulled down over his eyes to keep out the drifting snow and did not know that defendant was within a mile of him when the gun was fired. Defendant testified that just before he shot Howell the latter ran his hand in his hip pocket and said, “I’ll get him now.” There was some evidence tending to corroborate defendant, but the great preponderan.ce of testimony indicates that the shooting was done deliberately and without provocation.

Defendant’s counsel has not favored us with a brief, but an inspection of the record discloses the fact that he relies for reversal upon alleged errors hereinafter noted.

OPINION.

I. Defendant insists that the court erred in not instructing the jury upon the crime of assault as de- • nounced by section 4482, Revised Statutes 1909. That section does not purport to denounce any class of assaults except those for which no punishment had been prescribed by preceding sections of the statute, and as the crime of assault with intent to kill by shooting at a human being had been specifically prohibited, and a punishment therefor prescribed by section 4481, the court properly refused to instruct the jury that they might find defendant guilty under any other section of the statute or of any other class of assault. Under the evidence he was either guilty as charged under section 4481, or-his act was justified on the ground of self-defense.

II. Defendant also complains that error was committed in excluding evidence tending to prove that the State’s witness Rockett had made statements out of court which conflicted with his testimony as given upon the trial. This evidence was properly excluded, because the witness thus sought to be impeached had not, while giving his evidence, been asked if he made the alleged contradictory statements. [Kelley’s Criminal Law and Procedure (3 Ed.), sec. 385; 1 Greenleaf on Evidence (15 Ed.), sec. 462; State v. Devorss, 221 Mo. 469, l. c. 474.]

III. A further assignment of error relates to the action of the court in excluding evidence of the details of a quarrel and difficulty which occurred between defendant and the prosecuting witness on x the day the shooting occurred. If the exclusion of this evidence was error it was completely cured in a subsequent part of the trial by the adroitness of defendant’s learned counsel in eliciting from the witnesses offered the full details of the prior difficulty. [Hamilton v. Rich Hill Mining Co., 108 Mo. 364; Olfermann v. Union Depot Ry. Co., 125 Mo. 408.]

IV. It is further urged that the court erred in permitting the prosecuting witness to exhibit his wounds to the jury — defendant having objected to this exhibit on the ground that it had a tendency to prejudice the jury. While such evidence did tend to create prejudice, as it apprised the jury of the result of defendant’s crime, it was properly admitted. In Wharton’s Criminal Evidence (10 Ed.), vol. 2, sec. 518c, the rule is announced thus:

“The authorities are abundant that . . . parts of the deceased may be shown, such as the skull, jawbone, that may illustrate the nature of the wounds and identify the assailant, or the instrument, where that is essential. Not only the clothing may be exhibited, but it may be arranged upon a frame for convenience in exhibiting it to the jury, and structures and diagram of location may all be used as an aid in determining the charge under trial. ’ ’

A court or jury would be justified in imposing a more severe punishment where the assault was committed with such cruelty or deliberation as to result in severe injury to the person assaulted than in cases where the assault was carelessly made and resulted in no injury. The jury had a right to know the details of the assault and the result thereof in determining ■whether to impose the minimum penalty (two years) or a more severe sentence.

V. Defendant also insists that the seven-year sentence given him indicates malice or prejudice on the part of the jury, but we think this complaint is unfounded. The maximum punishment for the crime of which he was convicted is ten years, and, if the jury believed the State’s witnesses as to the unprovoked character of the assault, and they did so or they would not have convicted defendant, it was a matter of compassion on the part of the jury that he did not receive a ten-year sentence instead of only seven years. We have searched the whole record and find no reversible error, therefore the judgment of the trial court will be affirmed.

Walker, P. J., concurs; Paris, J., does not sit.


author: LAMM, C. J.' BROWN, J. GRAVES, J.

text:
    THE STATE ex rel. GEORGE L. FRAZER et al., v. WILLIAM J. SEIBEL, County Clerk. THE STATE ex rel. W. H. TEGETHOFF v. WILLIAM J. SEIBEL, County Clerk. THE STATE ex rel. A. H. WERREMEYER v. WILLIAM J. SEIBEL, County Clerk.
    In Banc,
    December 1, 1914.
    1. ELECTION: Coalition of Parties: Printing Names on Different Tickets. The Act of 1913, prohibiting party fusion and denying to a candidate of one political party the right to' have his name also printed on the party ticket of another political party as its candidate for the same office, having been held unconstitutional (261 Mo. 515), the county clerk has no power to refuse to print the name of a candidate for Representative upon the tickets of two political parties, where he has been nominated at a primary election by one of such parties, and substituted by the county committee of the other in the stead' of its own candidate for the same office who has resigned. The statutes as they now stand do not prohibit a man from being the candidate of two political parties.

      Held, by GRAVES, J., dissenting, with whom WOODSON, J., concurs, that the Act of 1913 prohibiting fusion of political parties, is not unconstitutional, as held in State ex rel. Schmoll v. Drabelle, and whether it received the number of votes required by the Constitution was a question for ■ the legislative body to determine, and that act being valid the peremptory writ of mandamus should be denied.
    2. -: -: -: Sec. 5848, R. S. 1909: Not Question for County Clerk. It is not for the county clerk to determine that the attempted substitution upon its party ticket of a candidate of another party for the same office, by the county committee, in the stead of its own nominee who has resigned, is in violation of Sec. 5848, R. S. 1909, providing that “no committee shall have the power to substitute, to fill any vacancy, the name of any person who is not known to be of the same political belief and party as the person for whom he is substituted.” That section lays a duty upon the party committee, but it lays none on the county clerk, and it does not authorize him to exercise the judicial function of saying that the person substituted is known not to be of the same political belief and party as the person for whom he is substituted.
    3. --: Candidates: Payment of Filing Fee. Held, by BROWN, J., that a county clerk cannot refuse to print the name of a candidate for office on the party ticket on, the sole ground that he had not paid the filing fee to the committee treasurer required by Sec. 5879, R. S. 1909. Said requirement is violative of the constitutional provision (Art. 2, sec. 9) ordaining that “all elections shall he free and open.” That provision applies to both candidates and voters. Such a statute is against sound public policy.
    Mandamus.
    Writ allowed.

      Albert Chandler and Wilfred Jones for relators.

      A. E. L. Gardner for respondent.
   LAMM, C. J.'

The three cases entitled as above are original proceedings in mandamus. They have a common purpose, were heard as one and decided as one by a per curiam handed down on October 31, 1914. If fresh justice is the sweetest as Lord Bacon says it is, that per curiam filled the bill. It, inter alia, ordered that absolute writs issue and that an opinion follow. The opinion so ordered to follow, follows, thus:

The object of the alternative writs was to cite Seibel, clerk of the county court of St. Louis county (who was either recalcitrant, or dubitante, or both) to show cause, if any he had, why the names of relators Frazier and Morgan should not be printed on the official ballot for use in the then approaching State election as candidates of the Progressive party for the offices of State representative for the second district and judge of the county court for the first district in St. Louis county respectively, in lieu of one Mars and one Gardner who had resigned their primary nominations respectively for those offices on the Progressive party ticket; and have the same clerk show similar cause, if any he had, why the name of relator Tegethoff should not be printed upon the official ballot as the candidate of the Progressive party for the office of State representative for the first representative district of said county in lieu of one Morton, who had resigned his primary nomination for that office on the Progressive party ticket; and have the same clerk show similar cause, if any he had, why the name of A. II.' Werremeyer should not be printed upon the same official ballot as the candidate for the office of collector of revenue upon the Democratic ticket, in lieu of one Grillick who had resigned his primary nomination for that office on the Democratic party ticket.

To those alternative writs, Seibel made return in the Werremeyer case which, by consent, stood as a return to the others, mutatis mutandis.

In substance, so far as material here, the return was to the effect that Werremeyer was nominated at the prior August primary as the candidate of the Progressive party for the office of collector of revenue, and Gilliek was similarly nominated as the candidate for the same office on the Democratic ticket. That Werremeyer had not withdrawn as a candidate upon the Progressive ticket, bnt holds fast to that nomination, while at the same time endeavoring to get the nomination of another party and to have his name printed on the ticket of that other party by and through the resignation of Gilliek and a resolution of the Democratic central committee of St. Louis county. That he, Werremeyer, was not known to respondent nor to said Democratic central committee, nor to the voters of said St. Louis county to be a Democrat in belief, nor as affiliated with the Democratic party, nor was he known to be of the same political belief or party as said Gilliek; but, contra, was known to respondent, to said committee and to said voters as a member of the Progressive party and as a believer in its principles. That the said action of the Democratic central committee (set forth in full in resolutions in the record) was contrary to the provisions of Eevised Statutes 1909, section 5848.

It seems that relators in the other causes were the regular nominees of the 'Democratic party, under circumstances outlined above, for the offices indicated hereinbefore, and sought nominations from the Progressive party and to be put on the Progressive party ticket by virtue of the resignations of the named candidates of the Progressive party for the offices in question, and to run on both tickets.

Delators filed a motion for judgment, and, on precedent, it is our view that the issue, raised by such motion for judgment on the pleadings, is one of law alone.

On such record, no apparent useful purpose can be subserved by extended discussion; since the principles controlling the case have been lately announced by this court, thus: In Nance v. Kearbey, 251 Mo. 374, an election contest, decided in 1913, the validity of Kearbey’s election for sheriff was questioned in part oil the ground that his name improperly appeared on two tickets. We resolved the case against the contention of contestant, putting our ruling in main part on the doctrine of State ex rel. v. Kortjohn et al., 246 Mo. 34, decided in 1912. One phase of the Nance-Kearbey case rode off on the assumption there was no existing statutory inhibition against two political parties doubling up their forces at an election and'running the same candidates upon their two tickets if the coalition was regularly brought about. [Williams v. Dalrymple, 132 Mo. 62.] In 1913 the Legislature attempted a change in public policy in that particular. [Liaws 1913, p. 327.] The new act prescribed a blanket ballot, containing, also an antifusion provision, whereby a candidate was denied the right to coquette with and embrace two nominations at the same time. [Laws 1913, sec. 5891, p. 327.] Now, in State ex rel. Schmoll v. Drabelle et al., Board of Election Commissioners of the City of St. Louis, 261 Mo. 515, it was held that this Act of 1913 was not enacted in accordance with the safeguards and requirements of the Constitution. By that decision that act, apparently the only recognized barrier in the way of fusion on candidates, was struck to the ground and became the same as if it never had been. Hence, as to the law of the instant cases, the situation is precisely as it was when the Nance-Kearbey case and the Williams-Dalrymple case were ruled, namely, political parties were allowed to fuse by nominating the same candidates and, to that end, filling vacancies on their tickets occurring after primary nominations. It becomes evident, then, that on the authority of the cases cited, absolute writs were providently awarded unless there is something of substance in respondent’s contention that section 5848, Revised Statutes 1909, stands as a lion in the way. Attend to that section. It reads: “The central committee of a political party shall consist of the largest body elected for the purpose of representing and acting for the party in the interim between conventions of the party. That for the purpose of making nominations to fill vacancies on a ticket previously nominated a majority of all' the members-elect of a central committee shall be necessary to take action. That a central committee shall not have the power to delegate its authority to make nominations to any persons or number of persons, and that any act consequent upon any such delegation' of authority shall be held to be null and void. That no central committee shall have the power to substitute, to fill any vacancy, the name of any person who is not known to be of the same political belief and party as the person for whom he is substituted.”

We are of opinion that respondent county clerk, neither by name, office nor intendment is within the purview of that section, hence, has no call or right to invoke its provisions in showing cause in his return. That section laid no duty on him. It laid a duty on the central committee of the party. Whether a violation of that duty is to be.corrected by electors at the polls when chance offers or can be corrected by the courts in an appropriate and timely action, we need not decide. It is enough for us to hold that it will be time enough for county clerks to constitute themselves judges of- the delicate question of the political beliefs of candidates when the lawmakers say so, not before.

The next section of the statute (Sec. 5849) prescribes a method of testing out objections to certificates of nomination — a method held preclusive in the Nance-Kearbey case. It is not pretended in these cases that any steps were taken under section 5849 to obtain any relief provided for therein.

It is on such premises, I am instructed by a majority of the Brethren to say that our absolute writs were awarded at the hearing by a per curiam, were served instamter and became effective.

All concur, except Woodson and Graves, JJ., who dissent in an opinion by Graves, J., in which Woodson, J., joins.

BROWN, J.

(concurring). — I concur in the views expressed in the majority opinion by our learned Chief Justice, but there is another issue tendered by respondent’s return which should not be passed over in silence.

In said return it was asserted that relator Werremeyer was not entitled to have his name printed upon the ballots of the Democratic party because he had not paid the filing fee to the Democratic Central Committee, as iequired by section 5870*, Revised Statutes 1909. In response to this defense it was urged by our learned Attorney-General that the failure of the relator to pay the filing fee is no defense in this case, because the law requiring such fee to be paid is in violation of section 9, article 2, of our Constitution, which, among other things, • ordains that “all elections shall be free and open.” In this contention the Attorney-General is correct.

The “free and open” clause of our Constitution is intended to have some application to both candidates and voters. With such restrictions as will demonstrate that a reasonable number of persons desire to vote for a candidate he should be allowed to aspire to public office and submit his claims to the voters.

Sections 5860 and 5870 of our primary election law require candidates for public office to pay. sums of money into the treasury of the political party on whose ticket they wish to be nominated before their names can appear upon the ballots of that party. To my mind such laws are against sound public policy. The State is friendly to all political parties, but upon no theory of honesty or fairness can it have a desire to promote the financial tvelfare of any political organization.

In a recent case of this character arising under the Constitution of .Illinois (which is in almost the precise language of our own organic law so far as it pertains to elections), it was held by the highest appellate court of that State that a primary election law was void because it required candidates for office to pay sums of money into the public treasury, thus putting a cash price on the right of a citizen to aspire to office. [People ex rel. v. Board of Election Comrs., 221 Ill. l. c. 21-23.]

If our own primary law were as good as the one condemned by the highest court of Illinois I should hesitate to enter my protest against its enforcement, for it is well known that if the money required by our law to be paid to political committées by candidates were paid into the public treasuries of the several counties and cities of our State the cost of holding our biennial primary elections would he lifted from the shoulders of the taxpayers and placed upo.n the candidates, and thus the public treasuries would gain many thousands of dollars.

Just think of the great State of Missouri requiring the payment of sums of money (vast in the aggregate) to the treasurers of political parties to he used in promoting the election of persons who happen to be nominated, and, perchance, to be used in corrupting the electorate into voting for candidates who may or may not be worthy of the offices to which they aspire. Such a law is enough to make every honest man in our State hide his face with shame.

The primary election law we now have is obviously intended to help the party which is temporarily in the ascendency. It no doubt helps the Republican party in St. Louis county, for by the election returns we see that the Republican candidates usually win in that particular county; consequently, many persons will seek nominations on that ticket and pay money to the treasurer of the Republican committee of that county for the chance of being nominated. It helps the Democratic party in Monroe county, and probably helps the Progressive party in Mercer, but it hurts minority parties everywhere, because it discourages persons from becoming candidates upon the ticket of a minority party, however much their views may be in accord with its principles, and to that extent at least it impedes the “free and open” elections which are contemplated in our Constitution. Under the guise of law it takes money from candidates all over the State, which, if collected at all, should be paid into the public treasuries of the several counties and cities, thereby relieving taxpayers who have quite enough burdens to bear without carrying the expense of primary elections.

Entertaining these views, I hold that those provisions of our primary election law upon which respondent relies are invalid, and that our absolute writ of mandamus was properly issued.

GRAVES, J.

(dissenting). — I dissent from the order and judgment in this case awarding the peremptory writ of mandamus. Under the opinion of the majority of this court in State ex rel. Schmoll v. Drabelle et al., 261 Mo. 515, the writ should go, but I do not agree to that opinion. By that opinion the Act of 1913 prohibiting fusion of political parties was declared unconstitutional. In that my brothers were wrong. By that opinion they emasculated from the Constitution one whole section thereof. Section 37 of article 4 of the Constitution clearly makes the Legislature the forum in which to determine the question as to whether or not all legal and constitutional steps have been taken in the passage of a bill. By this section the determination of this question is taken away from the courts. Grant it that section 31 of the same article requires that a majority of the members shall vote for a bill before it shall become a law, and that the names of those voting for and against it shall be spread of record, yet under section 37, supra, the legislative body determines for itself whether or not these things have been done in the passage of the bill. If such body says, by the signing of the bill in the presence of the body, without objection, that such things duly appear, that is the end of the matter, and this and no other court can go behind such solemn judgment of the legislative body.

Under this view of the law the anti-fusion statute is a valid and binding statute, and for that reason this writ of mandamus should be denied. Vide dissenting opinion in State ex rel. Schmoll v. Drabelle et al., supra.

Woodson, J., concurs in these views.