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    STATE v. PALMBERG, Appellant.
    Division Two,
    November 20, 1906.
    1. CARNAL KNOWLEDGE OF FEMALE UNDER FOURTEEN: Different Acts: Distinct Offenses. Each act of carnal intercourse with a female under fourteen years of age constitutes a separate, distinct and substantive offense.
    2. -: Evidence of Prior Acts. Evidence of acts of intercourse occurring prior to the act for which the defendant is being tried, is admissible, as tending to .prove the particular act upon which the conviction is sought.
    3. -: Evidence of Subsequent Acts. Evidence of acts of intercourse occurring subsequent to the act for which the defendant is being tried, is inadmissible.
    4'. -: Several Acts of Intercourse: Election. Where, in a prosecution for carnal intercourse with a female under the age of fourteen years, the prosecutrix testifies to several acts of intercourse which occurred prior to her reaching fourteen years of age, the court should compel the State, at the close of its case, on motion of defendant, to elect upon which act of intercourse it will rely; and its failure to do so constitutes reversible error.
    5. -: First Act: Election by Implication. The law will not, under all circumstances, imply an election by the State to rely for a conviction upon the first act of intercourse testified to by the prosecutrix.
    6. -- — : Several Acts: Time of Election. Where the court and the prosecuting officer know, at the commencement of the trial, that the testimony will show several acts of intercourse, each of which constitutes a separate offense, the State should inform the defendant upon what particular act it will rely for a conviction; evidence of prior acts may then be admitted, but evidence of subsequent acts should be excluded.
    7. -: Exhibition of Child. It was not error to exhibit to the jury the child to which the prosecutrix claimed she gave birth as a result of .her intercourse with defendant.
    8. -: Evidence of Physician: Date of Birth: Memorandum. Where the testimony of a physician tends to establish that he attended the mother of the prosecuting witness at the -time she gave birth to her, and he is enabled, by refreshing his memory from a memorandum book, to reasonably fix the date of such birth, his testimony is admissible.

      9. -: Complaint: Instruction. In the prosecution of defendant charged with carnal knowledge of a female under fourteen years of age, an instruction as to her duty to make complaint has no application, and is properly refused.
    Appeal from Cooper Circuit Court. — Hon. Wm. H. Martin, Judge.
    Reversed and remanded.

      W. F. Quigley, W. V. Draff en and C. D. Corum for appellant.
    (1) (a) Upon reason and authority the court erred in permitting the State to introduce evidence of acts of intercourse subsequent to October, 1903. People v. Clarke, 33 Mich. 112; People v. Flower, 104 Mich. 449; People v. Etter, 81 Mich. 570; People v. Robertson, 88 App. Div. (N. Y.) 198; State v. Neel, 23 Utah 542; State v. Hillberg, 22 Utah 27; State v. Donovan, 61 Iowa 278; State v. Oden, 100' Iowa 22; Pope v. State, 34 So. 840; Ball v. State, 72 S. W. 384; Smith v. State, 73 S. W. 401; Barnett v. State, 44 Tex. Crim. 592. (b) Independent crimes of any character are never competent except in those cases where it is necessary for the State to establish intent, motive, malice, etc. In this case the act carries with it the intent. State v. Spray, 174 Mo. 589; State v. Goetz, 34 Mo. 85; State v. Daubert, 42 Mo. 242; State v. Parker, 96 Mo. 389; State v. Jackson, 95 Mo. 649. (c) Other acts of intercourse, prior or subsequent, are not competent to prove a substantive offense upon which a conviction can be had. And the eases which hold that prior acts of intercourse are admissible lay down the rule that they are competent only to corroborate and explain the evidence of the act charged. This is the only ground upon which prior acts are admissible. People v. Jenness, 5 Mich. 305; People v. Tenelshof, 92 Mich. 167; State v. Knapp, 45 N. H. 148; Mitchell v. People, 24 Colo. 532; Wharton’s Criminal Evidence, sec. 35; State v. Neel, 23 Utah 542; State v. Hillberg, 22 Utah 34. (d) This being the only purpose for the admission of such testimony, either prior or subsequent, it follows that the court should have instructed the jury in regard tó the purpose for which this evidence was admitted. This the court failed to do. Cox v. State, 44 S. W. 157; Sykes v. State, 112 Tenn. 581. (2) The court erred in refusing to sustain defendant’s motion to elect. It is well-settled law that in cases where other acts of intercourse have been admitted in evidence the State is compelled to elect upon which act it will go to the jury. Smith v. Com., 60 S. W. 530; People v. Castro, 133 Cal. 11; People v. “Williams, 133 Cal. 168; People v. Flaherty, 162 N. Y. 532; State .v. Hillberg, 22 Utah 27; State v. Atcheson, 91 Me. 240; Stone v. State, 73 S. W. 956; 1 Bishop’s Crim. Pro., sec. 459. (3) The court erred in refusing the instruction requested by defendant as to the duty of the prosecutrix to make complaint. The refused instruction was a cautionary one, and the jury ought to have been advised as to the importance the law attaches to silence under such circumstances, in order that they might be better prepared to give her testimony such weight as it was entitled to, and no more. State v. Witten, 100 Mo. 525; State v> Wilson, 91 Mr. 410; State v. Patrick, 107 Mo. 147; Champagne v. Harney, 189 Mo. 722. (4) The court erred in permitting the child to be exhibited to the jury, over the objection of defendant. State v. Neel, 23 Utah 541; People v. Carney, 29 Hun 47; Hanawalt v. State, 64 Wis. 84; Reitz v. State, 33 Ind. 187; Risk v. State, 19 Ind. 152; Robnet v. People, 16 111. App. 299; Young v. Make-peace, 103 Mass. 50; Clark v. Bradstreet, 80 Me. 464; Barnes v. State, 39 S. W. 684; State v. Harvey, 112 Iowa 416.

      Herbert 8. Hadley, Attorney-General, N. T. Gentry, Assistant Attorney-General, and Chas. W. Journey for the State.
    (1) No error was committed by the trial court in permitting the prosecutrix to testify to acts of sexual intercourse between her and defendant other than the one charged in the indictment. This court has held that evidence of a prior attempt to commit rape was admissible when the charge against the defendant was * rape. State v. Patrick, 107 Mo.. 147. “It is also held that on a prosecution for rape of a girl under the age of consent, testimony of subsequent as well as prior acts of illicit intercourse between the parties is admissible to corroborate her.” 4 Elliott on Evidence, sec. 3105; State v. King, 117 Iowa 768; People v. Edwards, 73 Pac. 416; State v. Borchert, 68 Kan. 360; Smith v. Com., 22 Ky. L. 1349; State v. Robertson, 121 N. C. 551; Hamilton v. State, 36 Tex. Crim. 372; Woodruff v. State, 101 N. W. 1117. (2) The court committed ■ no error in allowing the jury to see the child of prosecutrix, which she carried in her arms while in the court room. 4 Elliott on Evidence, sec. 3028; 2 Wig-more on Evidence sec. 1157; Underhill on Crim. Evid., sec. 48.
   FOX, J.

On the 15th day of May, 1905, the prosecuting attorney of Cooper county filed an information against the defendant that contained two counts; the first count charged that on or about the 20th day of October, 1903, the defendant carnally knew one Florence Widdicombe, a female child alleged to be under the age of fourteen years. The second count charged that defendant had made an assault upon the said Florence Widdicombe on or about the 27th day of August, 1904, and alleged that said Florence Widdicombe was then and there an unmarried female of previous chaste character between the ages of fourteen and eighteen years.

The defendant filed a motion to compel "the State to elect upon which count of the information the State would go to trial The motion was sustained and the State elected to go to trial upon the first count, and the trial proceeded upon that count.

The testimony on the part of the State tended to show that the prosecutrix was born in Pettis county, Missouri, on the 27th day of August, 1890, and that her parents were named Coselet; that her mother died when she was quite young and she was adopted by Mr. and Mrs. Henry Widdicombe. The prosecutrix testified that the defendant had intercourse with her on several occasions; the first time some time about the 20th of October, 1903; one time when she was in the woods driving up her foster father’s cow; at another time at the home of the prosecutrix when her foster parents were absent; at another time on the road; and she also testified that the defendant continued to have intercourse with her until she arrived at the age of fourteen years, and that such acts of intercourse occurred every week or so. There was further evidence offered on the part of the State which disclosed the fact that as a result of this intercourse the prosecutrix became pregnant and gave birth to a child and the State, over the objections of the defendant, exhibited such child to the jury.

On the part of the defendant he testified in his own behalf and denied having intercourse with prosecutrix; his testimony directly contradicted that of the prosecutrix. There was other evidence introduced on the part of the defendant tending to impeach the prosecutrix and her foster parents as to conflicting statements made by them in reference to the age of the prosecutrix. There was also other testimony which tended to prove the bad reputation of the foster parents of the prosecutrix for truth and veracity. Defendant then offered evidence tending to show his good reputation for morality and as a law-abiding citizen.

In rebuttal the State offered evidence to show the good reputation of Mr. and Mrs. Widdicombe for truth and honesty. There was other evidence introduced in the case which will be referred to and discussed during the course of the opinion. This, however, is a sufficient statement of the case to enable the court to determine the legal propositions involved.

At the close of- the case the defendant, before proceeding to introduce his testimony, moved the court to compel the State to elect upon which one of the acts of intercourse, as testified to by the prosecutrix, it would proceed to go to the jury. The motion was overruled, and at the close of all the evidence the defendant renewed such motion, and it was likewise overruled. The cause was submitted to the jury upon the evidence and instructions of the court and they returned a verdict finding the defendant guilty as charged in the information and assessed his punishment at imprisonment in the penitentiary for a term of five years. Timely motions for new trial and in arrest of judgment were filed and by the court overruled. Sentence and judgment were entered of record by the court and from this judgment the defendant in due time and proper form prosecuted his appeal to this court and the record is now before us for consideration.

OPINION.

The record in this cause discloses many complaints by appellant based upon the action of the trial court during the progress of the trial. The most serious proposition confronting us upon this record arises upon the testimony of the prosecutrix and the law as declared by the court predicated upon such testimony. The record discloses that the prosecutrix, Florence Widdicombe, testified when she first took the witness stand that in October, 1903, the defendant pulled her off a horse' and forcibly had intercourse with her. In her testimony she details all the facts surrounding this particular time at which she claims the defendant forcibly ravished her. Upon further examination she then proceeded to detail other separate and distinct acts of intercourse had between‘her and the defendant subsequent to the one which she had narrated as having occurred in October, and she was finally permitted to testify that the defendant continued to have intercourse with her until she arrived at the age of fourteen years, and that such acts of intercourse occurred every week or so. To this evidence of subsequent acts of intercourse the defendant interposed an objection, and to fully appreciate such objection we here reproduce it. It was as follows: “The defendant objects to what occurred at that time, for the reason that whatever did occur cannot be competent in this case. I assume that the purpose of the inquiry is to elicit evidence tending to show that the defendant, on days other than and subsequent to the occasion mentioned in evidence already, had intercourse with the prosecuting witness. In other words, the State expects to offer in evidence testimony tending to show another rape upon the prosecuting witness, at a different time. We object for the reason that it is another substantive offense, and evidence of other crimes is not competent in any case unless it be for the purpose of showing intent, motive or malice, and in this case there is no specific intent necessary to commit the crime; no motive or malice is necessary to be shown, and the evidence of another separate and distinct crime is absolutely incompetent in this case, as tending to throw no light upon the inquiry under investigation.” The objection was overruled by the court.

At the close of the State’s case and before the defendant went on the stand to testify in his own behalf, he requested the court to compel the State to elect upon which of the alleged-acts of intercourse, as testified to by tbe prosecutrix, it would rely for a conviction. Tbis motion was also by tbe court overruled, and tbe defendant again at tbe close of tbe case renewed sucb motion in writing to compel tbe State to elect upon wbicb of tbe acts of intercourse, as testified to by tbe prosecutrix, it would go to tbe jury. Tbis motion was likewise overruled, to which action of tbe court, upon both of sucb motions, tbe defendant properly preserved bis objections and exceptions. The court at tbe close of tbe testimony embraced in one of its instructions tbis declaration of law; that is, “If tbe jury believe from tbe evidence, beyond a reasonable doubt, that tbe defendant, in tbe county of Cooper, and State of Missouri, at any time before tbe filing of tbe information herein, to-wit, on tbe 15th day of May, 1905, bad sexual or carnal intercourse with Florence Widdicombe, and she, said Florence Widdicombe, was then and there, at tbe time of said carnal intercourse, under tbe age of fourteen years, then you will find tbe defendant guilty of rape as charged in tbe information and assess bis punishment at imprisonment in tbe penitentiary for a term not less than five years, or at death.”

It is from these disclosures of tbe record that tbe legal propositions presented for our consideration arise.

I.

It is clear that each act of carnal intercourse testified to by tbe prosecutrix constituted a separate, distinct and substantive offense. Upon tbis proposition it is hardly necessary to cite authorities. [People v. Clark, 33 Mich. 112; State v. Hillberg, 22 Utah 27; State v. Acheson, 91 Me. 240; People v. Castro, 133 Cal. 11; People v. Williams, 133 Cal. 168; People v. Flaherty, 162 N. Y. 532, and numerous other cases.] Tbis being true, it is insisted by appellant:

First. That tbe act of sexual intercourse first testified to by tbe prosecutrix should be treated under tbe law as an election by tbe State as tbe act of carnal intercourse upon wbicb it would rely for conviction; and that all tbe other evidence as to acts of sexual intercourse by tbe defendant with tbe prosecutrix, either prior to or subsequent to tbe time first designated in her testimony, was incompetent and irrelevant, and should have been excluded by tbe court.

Where a conviction is sought for tbe commission of an act of sexual intercourse wbicb constitutes tbe offense, at some particular time, there is a sharp conflict in tbe authorities upon tbe proposition of tbe admissibility of evidence tending to show prior and subsequent acts of intercourse, as evidence tending to show the commission of tbe acts of intercourse upon wbicb tbe conviction is sought. We shall not undertake to review tbe authorities upon this subject. Tbe reasonable limits to wbicb an opinion should be confined is our only apology for failing to do so. It is sufficient to say upon this proposition that we have read with a great deal of care and interest tbe numerous cases in other States dealing with this subject, and.tbe weight of authority seems to fully support tbe doctrine, in cases similar to tbe one now under consideration, that' evidence of acts occurring prior to tbe act for wbicb tbe accused is being tried, as tending to prove the particular act upon which tbe conviction is sought, is admissible. This court in the case of State v. Scott, 172 Mo. 536, and State v. Patrick, 107 Mo. 147, has already indicated that upon that branch of tbe proposition it is . in line with tbe weight of authority. It was expressly ruled in those cases that prior acts of tbe defendant were admissible in evidence as tending to show tbe commission of tbe act upon wbicb a conviction was sought. In Sykes v. State, 112 Tenn. 572, it was fully recognized that tbe great weight of authority was in favor of tbe admissibility of prior acts, and tbe cases are fully collated and cited in support of the correctness of that view, and there is no necessity of again citing’ them in this case.

Upon the other branch of this proposition, as to the admissibility of subsequent acts in evidence in cases similar to the one at bar, there is also a conflict of views of the courts in the different States. However, after a careful consideration of all the cases, it is made-apparent that the weight of authority is against the admission of such subsequent acts. The conclusions of the courts that subsequent acts are inadmissible are based mainly upon grounds similar to those urged by the distinguished judge in the case of People v. Clark, 33 Mich. 112. Judge Mansion in that case thus stated tersely the views of that court upon the proposition. He said: “Nor could the prosecution, after having introduced evidence tending to show an offense committed in the town of Pennfield on the 28th of July, show subsequent acts as corroborating testimony, as they would have no such tendency. Proof of previous acts of sexual intercourse would tend to show a much greater probability of the commission of a similar act charged to have occurred subsequent thereto, but the converse of this proposition would not be true, as the proof of a crime committed by the parties on a certain day could have no tendency to prove that they had, previous thereto, committed a similar offense.”

In our efforts to reach a correct solution of both branches of this proposition we have been unable to find anywhere a more careful, correct and full review of all the cases upon this subject than is contained in the Lawyer’s Reports Annotated, vol. 62, pages 332 to 338. An analysis of the cases reviewed in such notes will demonstrate a careful and painstaking effort to correctly review all the cases upon the subject, and after a fair and thorough consideration of all the numerous cases pertaining to this subject the following clear and concise statement of the conclusions reached is announced: “Prom the foregoing decisions it would appear that the weight of authority seems to he in favor of the doctrine that, in this class of cases, evidence of acts occurring prior to the act for which the accused is being tried may be given to characterize and explain the latter; but that evidence of subsequent acts may not. The minority in favor of the admission of subsequent ajets, is, however, a strong one; but it is thought that the reasoning in favor of their admission lacks a great deal of the force of that generally used in the arguments in favor of the admission of evidence of prior acts.”

II.

This brings us to the consideration of the action of the court in overruling, at the close of the State’s case, defendant’s motion to require the State to elect as to which act of sexual intercourse as testified to by the prosecutrix it would present to the jury and rely upon for a conviction.

The prosecuting witness, as before stated, testified to numerous acts of sexual intercourse with the defendant prior to her arriving at the age of fourteen years. That each of said acts constituted a separate and distinct offense for which the defendant can be convicted, there can be no doubt, as we have heretofore pointed out, and it was manifest error on the part of the trial court to deny such motion, and this error is emphasized by the instructions of the court which failed to confine the jury to the consideration of any one particular act upon which a conviction might rest, but substantially directed the jury that they would be authorized to find the defendant guilty if they believed and found from the evidence that he had committed any or all of the acts embraced in the testimony of the prosecutrix. The charge upon which the defendant was tried was embraced in but one count of the information and simply charged but one offense committed on the 20th of October, 1903. Now, while under the law the State would not be required to prove tbe commission of the offense upon any particular date, but had the right to establish its commission upon any date prior to the filing of the information yet the defendant under this charge could only be convicted of one offense, and where the proof tended to show the commission of several distinct offenses it was clearly the duty of the court to confine the consideration of the jury to but one of the offenses indicated by the proof, and the State at the close of its case should have been required to announce its election as to which one of the acts indicated by the proof constituting the offense charged it would rely upon for a conviction.

The Supreme Court of California is one of the courts which holds that prior as well as subsequent acts of the defendant are admissible in evidence, but in People v. Castro, 113 Cal. 11, in treating of the proposition now under consideration, that court expressly ruled that the defendant, where separate acts of intercourse were sworn to by the prosecutrix, should not be called upon to defend himself against each of these separate acts of intercourse extending through a period of several months; that the information charged only one act and upon that election the ease must stand or fall. It was further held in that case that while it was true that any one of the acts sworn to by the prosecutrix could have .been selected by the State as the act charged in the pleading, yet the entire four acts could not be so selected, and it was expressly held in that case that, even conceding that there was a failure on the part of the defendant to request an election at the proper time, still, when the case went to the jury the court in some form should have directed their minds to some particular act of intercourse which it was incumbent upon the State to establish by the evidence before a verdict of guilty could be rendered against the defendant. This was not done in that case and the judgment was reversed.

In State v. Acheson, 91 Me. 240, the defendant was charged with an assault with attempt to ravish and carnally know a female child under the age of fourteen years. There was but one count in the indictment and the offense was alleged to have been committed on the 3rd day of January, 1897. The proof tended to show four separate and distinct assaults. This evidence was received and remained in the case without any explanation of its limited tendency and purpose. The court in that case, in discussing this proposition, said: “In this state of evidence, the jury were instructed in the charge that if they were satisfied ‘that on any date while this little child lived in the defendant’s house he was guilty of this charge’ it was their duty to convict him. This would have been a correct and appropriate instruction if only one assault had been proved. But as applied to the evidence of four independent assaults on different days, there is ground for apprehension that it was inadequate and misleading. Under this instruction and upon this evidence, some of the jury may have been satisfied that an assault was committed on one of the occasions specified, and others of an assault on a different occasion, and thus a verdict rendered without unanimity respecting either of the occasions described in the testimony. It is, therefore, the opinion of the court that the ruling admitting evidence of other similar assaults without explanation of its purpose and effect, and the foreg’oing instructions to the jury upon that state of the evidence, must be deemed erroneous. ’ ’

In State v. Hillberg, 22 Utah 27, the trial court, as in the case at bar, did not require any election to be made and allowed the case to go to the jury upon several acts of intercourse which the testimony tended toprove. The appellate court in its opinion clearly demonstrates the error of such course. It was there said: ‘ ‘ Such a course was calculated to confound and confuse the defendant in his defense. He was expected to meet one charge at a specified time, but was required to defend against and meet six different acts occurring during a period of fourteen months, upon one of which the jury was asked to convict. Whether the jury united in a verdict upon each act, or some on one and others on another of the acts proved, is problematical. . . .No jury should be set to fishing or hunting for a charge which they are called upon to try. Such a course deprived the defendant of a fair trial, and compelled him, without warning, to defend ag'ainst acts of which he had no notice. Manifestly, he could not be prepared to meet such confusing charges not contained in the information. ’ ’

In the case of People v. Williams, 133 Cal. 168, the Supreme Court of California is very emphatic in its denouncement, in cases of this character, of not confining the jury to the consideration of one particular act. In the discussion of this proposition, the court said: “But one other matter requires notice at our hands. That arises from an instruction given by the court to the effect that, if the jury found that defendant had had sexual intercourse with the prosecutrix at any time within three years before the finding of the indictment, she being under sixteen years of age, etc., they must find him guilty. The prosecutrix testified that she lived with the defendant for a period of four months, and on nearly every day during that time, and sometimes five or six times a day, they had sexual intercourse with each other. In addition to this' sweeping general assertion, many alleged acts were specifically described, with circumstances of time, etc. Each of these acts was a separate offense, and the defendant could be tried for either, and separately for each of them. The jury were not even told that they must all agree that some specifically described act had been performed. A verdict of guilty could have been rendered under such an instruction, although no two jurors were convinced beyond a reasonable doubt, or at all, of the truth of the charge as to any one of these separate offenses. Even worse than that was possible. As to every specific offense which there was an attempt to prove, and which could be met by proof, the defendant may have established his defense, and yet upon the general evidence of continuous crime, which, in the nature of’things, he could only meet by his personal denial, he may have been convicted. And how could he defend when he was not informed as to which particular offense, out of hundreds, testified to' by the prosecutrix, he was to be tried? Such a trial, upon a charge so indefinite as to circumstance of time and place, or any particular, except by. the general designation, would be a judicial farce, if it were not something a great deal worse.”

In this State it has been the uniform practice in the trial of criminal eases, where the proof on the part of the State tends to show the commission of separate and distinct offenses of the same class, to require an election at the close of the State’s case upon which one of the offenses, as shown by the evidence, it will rely for a conviction, even as applicable to misdemeanors. Judge Kelley, in his treatise on Criminal Law and Practice, section 1074, in treating of the misdemeanor of selling intoxicating liquors, announces the rule which has been approved by the courts of this State. He says: “When the indictment charges the selling in a general way, without specifying the person or kind of liquor involved in the sale, the State may call any witness or witnesses and prove an illegal sale; and if the court permits witnesses to testify as to separate and distinct acts or sales, the prosecutor should be required to elect upon which one he will rely, and be confined to his election, so that the defendant may know what he has to defend against on the trial, and plead the result in bar of another prosecution for the same act or sale.”

We deem it unnecessary to pursue this subject further. It must be ruled that the action of the court in denying the defendant’s motion at the close of the State’s case constitutes reversible error.

III.

This brings us to the only remaining proposition arising upon the testimony of the prosecuting witness, which tends to show the commission of separate and distinct offenses, that is, as to the proper time when the election should be made by the State upon which act of sexual intercourse it will rely for a conviction. The record in this cause does not disclose that the appellant, at the commencement of the trial, or at any other time during* the progress of the trial, until the State had closed its case, requested the court to compel the State to elect upon which act of intercourse it would proceed and rely for a conviction. It is insisted, however, by learned counsel for appellant that the prosecuting witness designating the time of the commission of the first act of intercourse in October, 1903, and her testimony tending to show that the offense was com: píete at that time, avoided any necessity for any request on the part of the defendant for an election, but the State having first introduced such proof, the law would imply an election of that particular act as the one upon which a conviction would be sought.

We confess that this contention of appellant is supported by the opinions of courts of high standing in other States. Such was the ruling in People v. Jenness, 5 Mich. 305; State v. Acheson, 91 Me. 240; State v. Hillberg, 22 Utah 27; People v. Williams, 133 Cal. 168; People v. Clark, 133 Mich. 112.

It is difficult in cases similar to the one now before us to lay down an inflexible rule which should govern trial courts regarding the proposition now under discussion. We have heretofore indicated that it is the uniform practice in the courts of this State to require an election after the State has developed its case, and while it may be that other separate and distinct offenses may be developed by tbe State and tbe defendant, as a matter of right, is entitled to have the State make an election as to the offense upon which it will proceed, yet in view of the uniform practice in this State we are unwilling to say that under all circumstances the law would imply an election upon the proof tending to show the first act, which would constitute the offense, or that the State should be compelled at the commencement of the trial, before the introduction of any testimony, toannounce its election. We are inclined to believe that the safer rule is that the court should act in accordance with the conditions confronting it at the time with the knowledge and information it may have or may acquire from the prosecuting officer at the time the trial commences. There are cases in which both the court and the prosecuting officer have but little information as to what the testimony of the State will develop. In cases of that character we are of the opinion that it would not tend to promote the fair administration of justice to embarrass the representative of the State by compelling him, in a case of which he had but little information, to elect upon what particular act he would proceed to trial, or by ruling that upon the introduction of proof tending to show the commission of some particular act, that was an election by implication; and on the other hand, while the prosecuting officer, who is the representative of the entire people, which includes the defendant, should earnestly and vigorously prosecute all violations of the law, yet it is equally his duty to deal fairly with the defendant in the prosecution of the offense with which he is charged; and if in cases of this character it is made manifest at 'the commencement of the trial that he is entirely familiar with his case and thoroughly conversant with the testimony which he can introduce, which will show the commission of several separate and distinct offenses similar to the one charged, and the court, by the statement of prosecuting officer or otherwise, is informed that such will be the proof, then in our opinion common fairness to the defendant would require the prosecuting officer to announce his election of the particular act that he would go to the jury upon, and under those circumstances he ought not to he permitted to introduce testimony showing the commission of numerous separate and distinct offenses, with the view and purpose, hy the use of those offenses shown to have occurred subsequent to the date of the act upon which he is finally required to elect to proceed, of prejudicing and inflaming the minds of the jury, and, as was said by the court of Criminal Appeals of Texas in the case of Smith v. State, 73 S. W. 401, “thereby convicting the accused on general principles.”

As the judgment in this case must be reversed and the cause remanded for a new trial, while discussing this proposition it is not inappropriate to say that, upon the retrial, the State having in the present trial developed its case, common fairness to the defendant would suggest the propriety, upon the request of the defendant, of requiring the State to elect upon which one of the acts of sexual intercourse, as testified to by the prosecuting witness, it will rely for a conviction, and upon such election being made, as herein indicated, the evidence of prior acts of sexual intercourse may be introduced for the purpose of tending to show the commission of the act upon which the State has elected to base its case; and all acts of sexual intercourse subsequent to the date of the act upon which the State has elected to proceed, should be excluded. This suggestion upon the subject of requiring the State to elect upon which of the offenses indicated by the testimony it will proceed to trial at the next hearing, finds full support in the able, clear and logical opinion by Chief Justice Parker, in People v. Flaherty, 162 N. Y. 532. There had been a former trial of that case and Judge Parker, after pointing out certain errors calling for trict attorney in open court, by direct motion made and indicates the course that should have been pursued by the court in the trial under review. He says: “As these errors call for a reversal of the judgment, we might not consider the case further were it not that the trial was conducted in distinct violation of the rights of the defendant in most important respects, and as the same course was pursued on the former trial to a certain extent, it seems to he our duty to guard against the repetition on the next trial of some errors most damaging in effect, which the defendant has had to meet on the previous trials. The indictment charges the defendant with the crime of an- act of sexual intercourse with a female not his wife under the age of sixteen years, and alleges in due form that the act constituting the crime was committed on the 1st day of July, 1892. The complainant says that the defendant had sexual intercourse with her on seven different occasions prior to her becoming of the age of sixteen years. Notwithstanding the fact that if all of said acts were committed they constituted seven distinct crimes, for only one of which defendant was or could have been charged in this indictment, the People were permitted on the former trial to prove all of these acts and the jury authorized to find the defendant guilty, provided they found he had committed any one of them. On the trial, which is the subject of this review, the court refused to follow the precedent thus set for it in one respect only; it did hold finally that the defendant could be convicted for only one offense, but that decision did not go far enough, as we shall see, nor was it made at the time that it should have been. ■ The defendant was represented by skilled counsel, who, although having but a very short time for the preparation of the case, fully appreciated the difficulties that had unjustly been placed upon the defendant on the former trial to defend against seven distinct crimes where but one was or could have been charged, and so, at the very opening of the trial, by request to the court, and also to the district attorney in open court, by direct motion made and objection to evidence taken, the counsel presented in almost every way conceivable to tbe court that' tbe defendant was charged with but one crime, could be tried for but one, and was entitled to know at the very beginning of the trial whether he was to be tried for a crime committed on the date alleged in the indictment, and if not, then that the People should state the date of the crime which it was purposed to prove as the one charged in the indictment. But the district attorney protested that it was his right to prove as many similar crimes as he could and to submit any one he chose as the one charged in the indictment. The court sustained the position of the district attorney and for seven days the taking of testimony on the part of the people proceeded, during the course of which twenty-one witnesses were called and testified to various outlying circumstances offered apparently in the hope that they might be in the end regarded as in some way corroborating the complaint as to some of the transactions detailed by her. A long, skillful and, at times, effective cross-examination had taken place, but without any knowledge on the part of the cross-examiner as to which one of the seven acts about which the complainant testified was to be submitted to the jury as the crime charged in the indictment. The People rested and then the court offered to entertain a motion to compel the People to elect upon which one of the transactions it would stand. The motion was made; direction to the People given; selection made; and then just at the very moment when the defendant was obliged to put his witnesses on the stand in support of his defense he was advised, and for the first time, for what particular crime his conviction was to be asked at the hands of the jury.” It was finally ruled under the circumstances in that case that the action of the court in not compelling an election until after the close of the State’s case, was erroneous and without support either in principle or authority.

Having indicated our views upon the main propositions disclosed by the record, and as it results in the conclusion that a new trial must he had of this cause, it would perhaps he well to briefly suggest our views upon some of the remaining complaints of appellant. Appellant complains of the exhibition of the child that the prosecuting witness testifies was the result of the ' intercourse she had with defendant. It is sufficient to say of this complaint that we are of the opinion that the prosecuting witness had the right to testify that she became pregnant and gave birth to a child as the result of the intercourse she referred to, and if she has the child in the court room, we see no impropriety nor valid objection to her pointing it out and saying that is the child I gave birth to as the result of such intercourse.

It is also insisted that the court erroneously admitted the testimony of Dr. Crawford, in which the doctor undertook to identify by a memorandum in a book that he kept the fact of attending prosecutrix’s mother at the time she gave birth to the prosecutrix, and thereby fix the date of the birth of the prosecutrix. It is sufficient to say of this complaint that unless the testimony of the doctor is sufficient to indicate that he was in fact in attendance upon the mother of the prosecuting witness at the time of the birth of such witness, and sufficiently identifies the parties concerned, then his testimony should be excluded; but, on the other hand, if his testimony tends to establish that he attended the mother of the prosecuting witness at the time she gave birth to such witness, and he is enabled, by refreshing his memory from a memorandum book, to reasonably fix the date of such birth, then such testimony is admissible.

This leads us to the consideration of the only remaining complaint which we deem necessary to give any attention to, that is, that the court refused to give, at the request of the defendant, the following instruction :

“The court instructs the jury that, under the laws of this State, it is made the duty of the party ravished to make complaint of such ravishment immediately or as soon after such alleged ravishment as an opportunity can he had to do so. The court instructs the jury that the State has failed to make any proof of any such complaint by the prosecutrix, Florence Widdicombe, in this case. Now, if the jury shall believe from the evidence that said Florence Widdicombe had opportunity to make such complaint and failed to do so, then such failure to do so is inconsistent with the defendant’s guilt and renders the charge of rape upon her by defendant improbable.”

This instruction has no application to this case and was properly refused by the court. The defendant is charged by the information with statutory rape, that is, with having carnal knowledge of a female under the age of fourteen years, and force or violence in accomplishing the act charged in the information constitutes no element of that offense, and the prosecuting witness may have consented to the act and sought to conceal it, yet such facts would in no way lessen or change the grade of the crime. The instruction requested by the defendant has application alone to- that class of cases where, in order to constitute the offense, the act of sexual intercourse must be accomplished by force and violence and against the will of the female charged to have been ravished. While the prosecutrix in this case does say that the sexual act was accomplished by force, yet that testimony had absolutely nothing to do with the establishment of the guilt of the defendant of the offense charged, and in no way alters the nature and character of the offense charged. While it may be legitimately argued to the jury as affecting the weight to he attached to her testimony as to the act of sexual intercourse, still as a matter of law it is immaterial whether such act was accomplished with or without force, or whether she made or failed to make any complaint of the accomplishment of such act. We repeat that the action of the court in refusing the instruction requested was entirely proper as applicable to this case.

We have indicated our views upon the controlling questions disclosed by the record, which results in the conclusion that the judgment of the trial court should be reversed and the cause remanded for a new trial in accordance with the views herein expressed, and it is so ordered.

All concur.


source: Caselaw Access Project

author: BURGESS, P. J.

license: Public Domain

text:
    THE STATE v. TROUTMAN, Appellant.
    Division Two,
    November 20, 1906.
    NO BILL OF EXCEPTIONS. Where there is no bill of exceptions and the record proper is free from error, the judgment will he affirmed.
    Appeal from Buchanan Criminal Court. — How. A. D. Burnes, Special Judge.
    Anstrmed.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry} Assistant Attorney-General, for the State.
   BURGESS, P. J.

The prosecuting attorney of Buchanan county filed an information in the criminal court of that county charging the defendant, James Troutman, Robert Kearney and David Masner, jointly with robbery in the first degree. Thereafter upon the motion of defendant a severance was granted him, and upon trial had he was found guilty as charged and his punishment fixed at five years imprisonment in the penitentiary. He appeals.

No bill of exceptions was filed in this ease, so that there is nothing before us for review except the record proper.

The information is well enough, and the record free from error. The judgment is therefore affirmed.

All concur.


author: POS, J.

text:
    THE STATE v. TERRIO, Appellant.
    Division Two,
    November 20, 1906.
    NO BILL OF EXCEPTIONS. Where no bill of exceptions is filed in the appellate court, and the record proper is free from error, the judgment will be affirmed.
    Appeal from Buchanan Criminal Court. — Hon. B. J. Casteel, Judge.
    Affirmed.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    Where there is no bill of exceptions, and no error appearing in the record proper, the judgment will be affirmed. State v. Wright, 186 Mo. 121; State v. Carnell, 186 Mo. 188.
   POS, J.

This cause is here upon appeal by the defendant from a judgment of conviction in the criminal court of Buchanan county convicting the defendant of an assault with intent to kill.

On June 24, 1905, the prosecuting attorney of Buchanan county filed an information charging the defendant with an assault with intent to kill. The date of the alleged offense was June 6,1905, and the person assaulted was one Maud Danby. At the June term, 1905, of the criminal court of said county, the defendant was convicted and sentenced to ten years in the penitentiary. His motions for new trial and in arrest being overruled, defendant appealed. No bill of exceptions was filed, and the time for filing same has expired; hence, we have nothing before us for consideration except the record proper.

The record in this cause discloses that the information filed by the prosecuting attorney was in proper form, duly verified and correctly charged the offense of which the defendant was convicted. Upon being formally arraigned the defendant entered a plea of not guilty and he was put upon his trial, the result of which has heretofore been indicated. So far as the record discloses, the trial of this cause seems to have been in every way regular; the jury was duly empaneled and sworn to try the case and the verdict returned by them, as well as the judgment upon it, is in approved form.

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

All concur.


text:
    THE STATE v. O’CONNOR et al., Appellants.
    Division Two,
    November 20, 1906.
    NO BILL OF EXCEPTIONS. Where there is no hill of exceptions and the record proper is free from error, the judgment will be affirmed.
    Appeal from Buchanan Criminal Court. — Eon. B. J. Casteel, Judge.
    Affirmed.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
   BURGESS, P. J.

By an information filed by the prosecuting attorney of Buchanan county, the defendants, Thomas O’Connor and Henry Bressman, were jointly charged with a felonious assault with intent to kill one Alpha Ash. The assault was alleged to have been committed with a brick, a deadly weapon. At the November term, 1905', the defendants were tried before the court and a jury, found guilty as charged, and their respective punishments fixed at two years imprisonment in the penitentiary. They appeal.

No bill of exceptions has been filed in this case, nor are the defendants represented in this court.

The information is in approved form, and properly verified.

Finding no reversible error in the record, the judgment is affirmed.

All concur.


author: FOX, J.

text:
    THE STATE v. ALVA HARROUN, Appellant.
    Division Two,
    November 20, 1906.
    1. MOTION FOR NEW TRIAL AND IN ARREST: Bill of Exceptions: Filed at Subsequent Term. At the term at which he was convicted, defendant filed his motion for a new trial, which was overruled. He thereupon filed his motion in arrest of judgment, which was continued to the next regular term, when it was overruled, and the bill of exceptions was -filed. The record does not disclose that defendant was granted any extension of time for filing his bill of exceptions. Held, that the filing of the bill ■ of exceptions at such subsequent term does not preserve the action of the court in overruling the motion for new trial; and, hence, there is nothing before the appellate court except the record proper.
    2. NO BILL OF EXCEPTIONS. Where there is no bill of exceptions and the record proper is free from error, the judgment will be affirmed.
    Appeal from St. Louis City Circuit Court. — Eon. Bobt. M. Foster, Judge.
    Affirmed.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    There is nothing before this court except the record proper. No hill of exceptions was filed at the same term at which the motion for a new trial was overruled; and no leave was given at that term to file a bill. The failure to thus file a hill of exceptions, or to take leave to .file same, deprives this court of the power to review the proceedings during the trial. State v. Goehler, 193 Mo. 177; State v. Larew, 191 Mo. 192; State v. Miller, 189 Mo”*. 673.
   FOX, J.

This cause is now before this court upon an appeal by the defendant from a judgment of conviction for grand larceny in the circuit court of the city of St. Louis.

The record discloses that on May 2, 1906, the assistant circuit attorney of St. Louis filed an information, duly verified, charging the defendant with grand larceny. The name of the prosecuting witness is Frank Hughes, and the property alleged to have been stolen was forty-nine dollars in money and a gold watch of the value of six dollars. The offense is alleged to have been committed on April 11,1905. It also appears from the record that there was a waiver of formal arraignment and a plea of not guilty.. On May 22, 1905, defendant was put upon his trial, which resulted in his conviction, and his punishment was assessed at five years in the penitentiary. Defendant in proper time filed his motion for a new trial, which was overruled at the same term of the court at which he was convicted. Defendant theñ filed a motion in arrest of judgment, and the record discloses that this motion was continued till the next ’ term, which was the June term. At the June term the motion in arrest of judgment was overruled and a hill of exceptions was filed. The record fails to disclose the preservation by bill of exceptions of the action of the court overruling defendant’s motion for a new trial at the term of court at which such motion was overruled; nor does it show any extension of time given defendant for filing such bill at any subsequent date.

The filing of a motion in arrest of judgment which was continued to the next regular term, and the filing of the bill of exceptions at such subsequent term, does not in any way preserve the action of the court in overruling the motion for a new trial; hence, the bill of exceptions filed in this case at such subsequent term does not authorize this court to review errors complained of during the progress of the trial, and there is nothing before us for consideration except the record proper. We deem it unnecessary to discuss this proposition in view of the recent rulings of this court in the cases of State v. Miller, 189 Mo. 673; State v. Larew, 191 Mo. 192; and State v. Goehler, 193 Mo. 177, where this question is expressly determined and the rule announced as herein indicated.

We have examined the record proper and find that the information properly charges the offense, and that the defendant answering such charge waived formal arraignment and entered his plea of not guilty. The record also discloses that the trial proceeded in proper order and that the jury were regularly empaneled and sworn to try the case, and the return of the verdict and entry of judgment in accordance therewith appear in every particular in proper form and in accordance with the law governing trials in criminal cases. Finding no error in the record proper the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


text:
    THE STATE v. STEPHENS, Appellant.
    Division Two,
    November 20, 1906.
    INDICTMENT: Substitution of Names; Rape. An indictment for rape which, in its charging part, substitutes the name of the person assaulted for that of the defendant, so that it charges her with having committed an assault upon herself, is fatally defective.
    Appeal from St. Louis City Circuit Court. — Ho». Jas. E. Withroiv, Judge.
    Reversed and remanded.

      T. M. Pierce, 8. P. McChesney, Mark Ewing and E. F. Cunningham for appellant.
    The court erred in holding that the indictment stated a cause of action and charged a crime against the law. State v. Edwards, 70 Mo. 480; State v. Manning, 168 Mo. 418.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    The mere clerical error in the indictment, about which defendant’s counsel complain, did not vitiate, the indictment, nor cause that document to fail to inform the defendant of the charge against him. It has often been decided that the misspelling of words, or the use of bad grammar in an indictment, is not sufficient grounds for quashing the indictment or arresting the judgment. State v. Vaughan, 141 Mo. 514; State v. Miller, 156 Mo. 76; State v. Craighead, 32 Mo. 561; 1 Bishop on Crim. Proc., secs. 354 -and 511; R. S. 1899, see. 2335.
   BURGESS, P. J.

On an indictment preferred by the grand jury of the city of St. Louis in which defendant is charged with ravishing and carnally knowing one Helen Dillon, a female child under the age of fourteen years, defendant was, on the 21st day of November, 1905, in the circuit court of said city, convicted of assault with intent to commit a rape upon said child, and his punishment fixed at three years in the penitentiary. He appeals..

The indictment is as follows:

“The grand jurors of the State of Missouri, within and for the body of the city of St. Louis, now here in court, duly impaneled, sworn and charged, upon their oath present, That David W. Stephens, on, the eighth day of August in the year of our Lord one thousand nine hundred and five, at the city of St. Louis, aforesaid, in and upon one Helen Dillon, the said Helen Dillon being then and there a female child under the age of fourteen years, unlawfully and feloniously did make an assault; and she, the said Helen Dillon, then and there did unlawfully and feloniously, forcibly rape, ravish and carnally know, against the will of her, the said Helen Dillon; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State. ’ ’

The point is made that the indictment is insufficient. It will be noted that in the charging part of the indictment the name of the child assaulted is substituted for that of the defendant, so that it charges her with having committed an assault upon herself. Such a mistake cannot be regarded as immaterial. Nor can it be corrected or ignored. The indictment must therefore be held bad. [State v. Edwards, 70 Mo. 480; State v. Manning, 168 Mo. 418.]

We see no objection to the instructions. The evidence fully warranted the submission of the case to the jury, whose province it was to pass upon its weight.

The judgment is reversed and the cause remanded.

All concur. .


text:
    THE STATE v. BIRKS, Appellant.
    Division Two,
    November 20, 1906.
    1. INFORMATION: No Implication. In an information or indictment nothing material can be left to intendment or implication.
    2. -: For Murder: Defective. An information, attempting to charge murder, which, following the charging of the assault by shooting at deceased with a gun, omits the words, "thereby giving to” deceased “one mortal wound,” or other words of similar import — is fatally defective.
    3. EVIDENCE: Physician: Res Gestae: Dying Declarations. A physician testified, for the State, that he reached deceased about half an hour after the difficulty; that he inquired of deceased if he was suffering much, and deceased replied, “No, doctor, it is a peculiar distress that I have; it is an awful feeling and I can’t explain it; ” that he then asked deceased if he knew why the man had shot him, and deceased answered, “No, doctor.” Meld,, that these statements of deceased were inadmissible, not being dying declarations and not standing in such im- . mediate causal relation to the act as to constitute part of the res gestae. .

    4. -: Former Difficulties: Details. While former difficulties between defendant and deceased are admissible, the details of of such difficulties are inadmissible.
    5. THREATS: Instruction: No Evidence. Instructions as to threats, communicated and uneommunicated, should not be given where, as in this case, the testimony does not warrant them.
    Appeal from Lawrence Circuit Court. — Hon. F. C. Johnston, Judge.
    Reversed and remanded.

      McPherson é Hilpirt, B. H. Landrum and Peel S Sizer for appellant.
    (1) The court committed error in permitting the witness Dr. Russell to testify to the statement made to him by the deceased, because the same was not part of the res gestae and was not competent. State v. Hendricks, 172 Mo. 654; State v. Snell, 78 Mo. 240; State v. Feary, 172 Mo. 213. The statement was not admissible as. a dying declaration for the reason the evidence does not show deceased made the same under the belief of impending death and that he was without hope of recovery. State v. Simon, 50 Mo. 370; State v. Partlow, 90 Mo. 608. And for the further reason that it is not a statement of fact but is an expression of an opinion or rather want of opinion by the deceased. State v. Chambers, 87 Mo. 406; State v. Parker, 96 Mo. 382. (2) The information is fatally defective and defendant’s motion in arrest of judgment should have been sustained. In criminal pleading nothing is left to intendment or implication. State v. Brown, 168 Mo. 449’; State v. Rector, 126 MO'. 340; State v. Furgerson, 152 Mo. 92, 162 Mo. 668; State v. Hagan, 164 Mo. 658.

      Herbert 8. Hadley, Attorney-General, N. T. Gentry, Assistant Attorney-General, and D. H. Kemp for the State.
    (1) No error was committed by the court in admitting in evidence the statement made by the deceased to Dr. Russell. It was admissible as part of the res gestae. State v. Hudspeth, 150 Mo. 26; State v. Sloan, 47 Mo. 604; State v. Martin, 124 Mo. 524; Irby v. State 25 Tex. App. 213; 3 Wig. on Ev., secs. 1750, 1751. (2) The information, which was duly verified by the affidavit of the prosecuting attorney of Barry county, is sufficient in form and substance. State v. Jones, 134 Mo. 259; State v. Privitt, 175' Mo. 224.
   FOX, J.

This cause is brought here upon appeal by the defendant from a judgment of conviction in the circuit court of Lawrence county for murder of the second degree. The information upon which this prosecution is predicated, omitting caption and formal parts, is as follows:

“D. H. Kemp, prosecuting attorney within and for the county of Barry, in the State of Missouri, acting herein under his oath of office and upon his knowledge, information and belief, informs the court, that, Harry Birks, on the 9th day of March, A. D. 1905, at.and in the county of Barry and State of Missouri, then and there being, in and upon one Marion Thomas, then and there being, feloniously, wilfully, deliberately, premeditatedly, on purpose and of his malice aforethought, did make an assault and with a dangerous and deadly weapon, to-wit, a double-barrel shotgun, then and there loaded with gunpowder and leaden balls, which he, the said Harry Birks, in his hands then and there had and held, at and against him, the said Marion Thomas, then and there feloniously, wilfully, deliberately, premeditatedly, on purpose and of his malice aforethought did shoot off and discharge, and with the double-barrel shotgun aforesaid, then and there feloniously, wilfully, deliberately, and premeditatedly, on purpose and of his malice aforethought, did shoot and strike him, the said Marion Thomas, in the middle of the right groin of the body of him, the said Marion. Thomas, then and there with the dangerous and deadly weapon, to-wit, the double-barrel shotgun aforesaid, and the gunpowder and leaden balls aforesaid, in and upon the right groin of him, the said Marion Thomas, one mortal wound of the breadth of two inches, and of the depth of six inches, of which said mortal wound the said Marion Thomas, from the 9th day of March, 1905, in the county of Barry and State aforesaid, did languish, and languishing did live, on which said 10th day of March, 1905, the said Marion Thomas, in the county of Barry and State of Missouri, of the mortal wound aforesaid, died.
“And so D. H. Kemp, prosecuting attorney aforesaid, upon his oath aforesaid, does inform the court that the said Harry Birks, him, the said Marion Thomas, in the manner and form aforesaid, by means aforesaid, at the time and place aforesaid, feloniously, wilfully, deliberately, premeditatedly and of bis malice aforethought did kill and murder; contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the State.”

It will be observed that the killing of Marion Thomas is charged to have occurred in Barry county. The record discloses that upon the defendant’s application the venue of said cause, on the ground of the prejudice of the inhabitants of said county, was changed to the circuit court of Lawrence county.

At the November term, 1905, of the Lawrence Circuit Court the defendant was put upon his trial. The State’s evidence tended to prove that the deceased and his brother, Houston Thomas, resided on a farm near Monett, and were engaged in the sawmill and threshing machine business. The deceased was a married man and about forty years of age, and his brother was about thirty years old at the time of the homicide. On March 9, 1905, deceased and his brother drove to Mo-nett in a two-horse buggy, reaching there between eleven and twelve o’clock; they tied their team to the public rack and visited various places of business during the afternoon. About six o’clock p. m. they went to the Shaw saloon, where they saw defendant at the farther end of the bar. Deceased and his brother had also seen the defendant near the postoffice an hour or more prior to this time but nothing was said by either one of them at either time. While they were in the Shaw saloon, defendant left the saloon, going out the back door. This saloon was located in the same block and only a short distance from the Sherman saloon, where the final difficulty occurred. After leaving the Shaw saloon, deceased and his brother went to the lumber yard, and from there to the Sherman saloon. The witnesses differ as to the exact time when these two men reached the Sherman saloon, but all agree that it was a little after six,.possibly five, ten or fifteen minutes past six. In this saloon, the deceased was standing next to a screen, Thornton Cox was standing next to deceased, and Houston Thomas was standing next to Thornton Cox'; and all three were facing the bar, taking a drink. The saloon faces the east, has double doors in front and near to said doors, and only six or seven feet away, is a screen, made of wood and colored glass. On the north side of the saloon is the bar, and on the east end of the bar out beyond the screen is the cigar stand., The deceased, his brother and Thornton Cox were west of and behind this screen and near to and facing the bar. A few minutes after Mr. Sherman came on duty in the saloon, the deceased asked him if he had seen defendant, or if he knew where the defendant was. In a moment, the defendant walked into the front of the saloon and around on the south side of this screen; he was carrying a double-barreled shot gun. Defendant had the stock of the gun under his arm, and the barrel was angling out to the front of him and towards the deceased. Defendant said, “What in the hell are yon fellows talking about? I understand you are looking for me.” Deceased said, “Harry, don’t,” and raised his hands; at the same time, he walked towards defendant. Defendant stepped back toward the front door and fired at deceased, the load taking effect in the right groin. Deceased fell to the floor, and defendant pointed his gun toward the brother of the deceased; but Sherman jumped over the cigar case and took the gun away from defendant. At the same time, Thornton Cox took hold of deceased’s brother and prevented any further trouble. The State’s evidence further showed that a little after six o’clock p. m. defendant walked into the Shaw saloon, or Meagher’s saloon, carrying a double-barreled shot gun, and asked Mr. Meagher to give him some shells. Mr. Meagher asked where he was going, and defendant said he was going to King’s pond next morning duck hunting. Mr. Meagher then gave defendant four loaded shells, and defendant broke down the gun and inserted two of the shells in the breech. Mr. Meagher objected to defendant loading the gun in there; but defendant did not remove the shells. Defendant left the Meagher saloon, and in less than ten minutes he returned, saying that he had killed a man, and gave Mr. Meagher back two of the shells. Defendant was arrested that evening by officer Jackson, who took defendant to jail; and defendant remarked to the officer that “that was a hell of a way to go duck hunting.” At two o ’clock that night, officer Jackson received a telephone message that Marion Thomas had died, and told the defendant of that fact the next morning. Defendant said, “I guess I will have to die a little too.” The next day, while riding on the train with officer Jackson, defendant stated to John Hornbeck that he wished he had killed Mr. Sherman first and then'shot the other two brothers.

A few minutes after the shooting, Dr. Russell was summoned to the saloon, and examined the wounds on deceased, and Dr. Miller was also summoned; and the two decided to move deceased to the Indiana hotel. The physicians testified that they found deceased suffering from a gun-shot wound, which entered the right groin, extending back through the pubic bone and into the rectum. The wound ranged down, to the right and backward, and was very large, having been made by a load of duck shot. As a result of said wound, the physicians testified that the deceased died at one o’clock that night.

The defendant’s evidence tended to prove that there was bad feeling existing between the defendant and deceased, and also' between the defendant and deceased’s brother for some time prior to the final difficulty. That deceased made several threats against the life of defendant, accused defendant of stealing some money from him, saying that he was going to get even with defendant, etc. That on the day of the final difficulty, deceased and his brother made a number of inquiries of different persons in the various saloons of Monett for defendant; and as they were entering the Shaw saloon, or Meagher’s saloon, at six o’clock, they said they wanted to find defendant, and intended to kill him. The person to whom defendant made this statement (John Suttles) told defendant. Defendant went home, got his double-barreled shot gun and went to Meagher’s saloon where he borrowed four lo aded shells. Defendant told Mr. Meagher that he was goingto King’s pond duck hunting the next morning, and wanted the shells for that purpose. Mr. Meagher noticed defendant broke the gun in the saloon and putintwo shells; whereupon Mr. Meagher objected to his loading it in there. Defendant went out towardsafriend’shouse>, with whom he intended to stay all night; and, as he passed the Sherman saloon, he concluded he would go in there and take a drink. As he entered the saloon, he heard deceased talking to some one about getting an affidavit to the effect that defendant was dishonest; whereupon defendant walked around the screen and said: “What in the hell are you fellows talking about? I understood you are looking for me.” Deceased, his brother and Thornton Cox all turned around, and deceased raised his left hand and started towards defendant. Defendant called to deceased three times and told him to stop; but deceased continued to advance, and made a motion as if to get his pistol, when defendant fired his gun. Deceased fell and Mr. Sherman jumped over the cigar case and took the gun away from defendant. Defendant went to Mr. Meagher’s saloon, returned the shells, told that he had killed a man, and wanted to surrender to officer Jackson. Defendant denied making the statement as testified to by officer Jackson and State’s witness, John Hornbeck; and said that he did not shoot deceased till the latter had crowded defendant into the corner and was about to take hold of his (defendant’s) gun barrel. Defendant’s evidence further tended to prove that a pistol was found on deceased, which pistol had been given to him a few minutes before the shooting by deceased’s brother. There was evidence to the effect that the deceased’s reputation, when drinking, was had; hut that he had a good reputation when sober; and that on this afternoon deceased and his brother were both badly intoxicated.

In rebuttal the State offered testimony tending to prove that the deceased’s general reputation was good; and also that a few minutes before six o ’clock deceased and his brother were not under the influence of liquor.

At the close of the testimony the court instructed the jury upon murder in the first and second degrees and upon the subject of reasonable doubt, self-defense and other general instructions covering the testimony introduced in the case. Defendant requested the court to give a number of instructions which were refused. We deem it unnecessary to burden this opinion with a reproduction of the instructions given or those refused. We will refer to them during the course of the opinion.

The cause was submitted to the jury upon the evidence and the instructions of the court and they returned a verdict finding the defendant guilty of murder in the second degree and assessing his punishment at imprisonment in the penitentiary for a term of forty years. Timely motions for new trial and in arrest of judgment were filed and by the court overruled. The court caused the sentence and judgment in conformity to the verdict to be entered of record, and from this judgment the defendant in proper time and form prosecuted his appeal to this court, and the record is now before us for consideration.

OPINION.

This record discloses numerous assignments of error; however, it is apparent that the most important proposition presented to our consideration upon this appeal is the challenge to the sufficiency of the information filed in this cause. In order to support this judgment of conviction it is clear that it must have a valid information properly charging the offence upon which to rest; therefore, it is well at the very inception of the consideration of the proposition involved as disclosed by the record, to first determine whether or not the defendant has been properly charged upon the information of the prosecuting attorney with the offense for which he was convicted.

It is a fundamental rule in criminal pleading that in all indictments for felonies nothing material shall shall be taken by intendment or implication. In State v. Furgerson, 152 Mo. 92, Burgess, J., speaking for this court, gave full recognition to this rule and quoted approvingly from '2 Hawkins, P. C., chap. 25, sec. 60-, where it is said: “In an indictment nothing material should be taken by intendment or implication.”

A careful examination of the information upon which this prosecution is based makes it manifest that it is insufficient to support the judgment. It fails to charge that Marion Thomas was given a mortal wound by reason of the alleged assault upon him with the gun. In other words, following the charging of the assault by shooting at said Thomas with a gun, the words “thereby giving to him, the said Marion Thomas, one mortal wound,” or words of similar import, are entirely omitted, leaving the charge without any connection between the shooting at the deceased with the gun and the infliction of the mortal wound. This information is substantially in the same form as the first count of the indictment in the case of State v. Brown, 168 Mo. 449; and so- far as the omission of essential allegations are concerned, as is herein indicated in the information in the case at bar, it is identical with that pointed out in the case of State v. Brown, supra. Sherwood, J., speaking for the court in that case, said: “The first count is bad because of lacking the words ‘thereby giving to him the said George L. Richardson’ or words of similar import. Lacking these words, this count does not directly charge that George L. Richardson was ‘given’ a mortal wound. It is the inflexible rule in criminal pleadings that in, all indictments for felonies, nothing can be left to intendment or implication.”

The principle announced in the case last cited was fully concurred in by this entire division, and has been uniformly approved by this court. [State v. Furgerson, supra; State v. Hagan, 164 Mo. l. c. 658; State v. Williams, 184 Mo. 261; State v. Woodward, 191 Mo. 617.]

In support of the sufficiency of this information our attention is directed to the case of State v. Jones, 134 Mo. 254. It is true that the indictment as copied in the report of that case omits the essential allegation as pointed out in the case of State v. Brown; however, we now have the original transcript before us in which is contained the indictment as certified by the clerk of the trial court, and an examination of it shows that the indictment which was in judgment before this court did not in fact omit the essential allegations which are pointed out in the Brown case and in the case at bar, and such indictment contains the essential allegations which were omitted in the case of State v. Brown as well as in the case at bar, and is in strict conformity with the uniform rules of this court; therefore, it is apparent that the indictment presented to this court for consideration in the Jones case sufficiently and correctly charged the offense, and the error was not that of the court, but simply consists of an error in printing the indictment which was actually passed upon by this court. The question involved in the Brown case and in the case at bar was not discussed in the Jones case, and there was no reason for discussing it because the indictment before the court strictly conformed to the rules of pleading in criminal cases. Doubtless the erroneous copy of the indictment in the Jones case misled the prosecuting attorney in filing the information in the case at bar. However, it is clear that even though he was misled, such fact can furnish no valid reason for holding this information valid, when it is so manifest that it is insufficient under the well-recognized rules of pleading in criminal cases. The case of State v. Brown clearly announced the correct rule, and the principle announced has heen uniformly followed and approved by this court, and the ruling in that case must be regarded as decisive of the question as to the sufficiency of the information in the case at bar. It therefore must be ruled that by reason of the omission of the essential allegations as herein pointed out the information in this cause is insufficient to support the judgment. This cause, for the fatal defect in the information, must be remanded for a new trial.

We are unable to forecast with any degree of certainty what will be the testimony upon such retrial of this cause; however, as it is to be re-tried it may be well to briefly suggest our views upon some of the remaining complaints presented by this record.

I.

Complaint is made by the appellant that the court erroneously admitted in evidence the statements made by the deceased to Dr. Russell. It is sufficient to say upon this complaint that we have carefully considered the disclosures of the record upon this subject. It appears that Dr. Russell was sent for to attend the deceased after he was • shot and that he reached him in the saloon where the shooting occurred. Dr. Russell says that it was about a half hour after the difficulty; however, Mr. Sherman thought it was only ten or fifteen minutes. Dr. Russell first inquired of the deceased if he was suffering very much and the deceased replied, “No, doctor, .it is a peculiar distress that I have; it is an awful feeling and I can’t explain it. It is not exactly pain. “ Then I asked him if he knew why the man had shot him and he replied, ‘No, doctor.’ ”

"While it may be that the fact that the deceased did not undertake to detail any of the circumstances of the difficulty and simply answered that he did not know a fact which was peculiarly within the knowledge of the defendant himself, that is, that he did not know why the man had shot him, would not- be such error as to warrant the reversal of this judgment, yet manifestly it was erroneous under the circumstances disclosed by the record to admit any conversation between the doctor and the deceased. Such statements by the deceased to the doctor were not part of the res gestae. They amounted to nothing more than an ordinary conversation between a doctor and his patient. These statements did not stand in such immediate causal relation to the" act as would constitute them a part of the res gestae. Dr. "Wharton, in defining the res gestae, says that it “may be defined as those circumstances which are the automatic and undesigned incidents of a particular litigated act, and which are admissible when illustrative of such act. These incidents may be separated from the act by a lapse of time more or less appreciable. They may consist, as we will see, of sayings and doings of any one absorbed in the event, whether participant or bystander; they may comprise things left undone as well as things done. ... In other words, they must stand in immediate causal relation to the act, a relation not-broken by the interposition of voluntary individual wariness, seeking to manufacture evidence for itself.” [1 Whart., Law of Ev., sec. 259.]

The testimony of the doctor in the saloon and after the deceased was removed from the saloon over to the hotel as to his examination of him and what he observed as to the nature and character of the wound, was competent, but any statements made to the doctor by the deceased, it not appearing that they came within that class of testimony known as dying declarations, were clearly incompetent and should have been promptly excluded by the court.

II.

It is insisted by appellant that the court committed error in excluding evidence of former difficulties between the deceased and the defendant. It is only necessary to say upon this proposition, that so far as regards any details of former difficulties, they were inadmissible. It was competent to show the fact that there had been previous difficulties, and if the defendant made any threats of violence against the deceased, it is competent to prove such threats, but to go into the details of former difficulties would simply tend to confuse and mislead the jury, and in many instances direct their attention to the consideration of the question as to who was in the right or wrong in such previous difficulties, concerning which there is no one upon trial.

III.

Numerous complaints are insisted upon by appellant respecting the instructions given as well as those refused. We repeat that this court is unable to determine what changes may be made in the testimony upon the retrial, or what additional testimony may be introduced ; therefore, it is sufficient to merely suggest that precedents of approved instructions in cases of this character are numerous, and we assume that upon the retrial of this case the trial court will give strict attention to the evidence and then declare the law by its instructions covering every phase of the case to which the testimony is applicable in conformity with approved precedents in eases of this character. Instructions should be predicated upon the testimony, and if upon the retrial there is any substantial testimony showing that the defendant sought or provoked the difficulty, or began the quarrel with the felonious purpose and intent of taking the life of Marion Thomas, or of doing him some great bodily harm, the court may very appropriately cover that feature of the case by instructions which conform to the law upon the subject.

Instructions 9 and 10, given by the court upon the subject of threats, were as follows:

“9. The court instructs the jury that if they shall find and believe from the evidence that Marion Thomas made any threats against the life óf the defendant, which were not communicated to him, such threats should be considered by the jury for the purpose of determining the intention of Thomas at the time he pro.voked and entered into the difficulty with the defendant, provided the jury believe from the evidence that Thomas did provoke and enter into the difficulty.
‘110. The court instructs the jury that if they believe from the evidence that Marion Thomas made any threats against the life of the defendant, and that such threats were communicated to defendant before the killing, the jury should take into consideration such threats in determining whether defendant was justified in acting upon appearances when he shot Thomas, provided the jury believe from the evidence that Thomas provoked and entered into the difficulty with the defendant.”

These instructions should not have been given in that form for the reason that the testimony disclosed by the record did not warrant the giving of them. On the retrial of this cause, if there is any conflict in the testimony as to who was the aggressor at the time, of the fatal difficulty, and proof of uncommunicated threats by the deceased against the defendant is made, then, for the purpose of throwing light upon the conduct of the parties, as to who was the aggressor, such threats are entitled to be considered by the jury and the law as to such uncommunicated threats should be declared to the jury in plain and unambiguous terms in accordance with approved precedents by this court. As to any threats which may be shown in evidence made by the deceased against the life of the defendant, or to do him some great bodily harm, which were communicated to the defendant, the jury has the right to take suck threats into consideration in determining the question of the reasonable grounds of apprehension of danger by the defendant, as well as in explanation of the conduct of the parties at the time of the fatal difficulty, and the law upon such communicated threats should be declared in harmony with similar instructions upon the subject which have met. the approval of this court.

Upon the question of the propriety of an instruction for manslaughter in the fourth degree, or any other degree, it is sufficient to say that the rules of law as to the state of facts which will reduce the killing from murder in the first or second degree to manslaughter in any of the degrees are well settled in this State, and if upon the retrial there is any substantial testimony tending to show a state of facts which under the law would reduce the killing from murder in the first or second degree to manslaughter in any of the degrees, we assume the court will cover such testimony by appropriate instructions.

We have indicated our views upon the propositions presented in this cause, which results in the conclusion that the judgment in this cause should be reversed and the cause remanded, to the end that an amended information may be filed against the defendant upon which a trial may be had in harmony with the views herein expressed, and it is so ordered.

All concur.


text:
    THE STATE v. PHILLIPS, Appellant.
    Division Two,
    November 20, 1906.
    NO BILL OF EXCEPTIONS. Where there is no hill of exceptions, and the record proper is free from error, the judgment will he affirmed.
    Appeal from Buchanan Criminal Court. — Hom. B. J. Casteel, Judge.
    Affirmed.

      Herbert 8. Hadley, Attorney-General, and John Kewmsh, Assistant Attorney-General, for the State.
   FOX, J.

This cause is here upon appeal by defendant from a judgment of conviction for grand larceny in the criminal court of Buchanan county. The prosecuting attorney of Buchanan county, on the 2d day of August, 1906, filed with the clerk of the criminal court of said county an information charging the defendant, Samuel D. Phillips, and four others jointly, with the crime of grand larceny, for the stealing of certain goods and chattels of the C. B. & Q. Railway Company, at said county of Buchanan on the 17th day of November, 1905.

The defendant, Samuel D. Phillips, asked for and was granted a severance, waived formal arraignment, and upon a plea of not guilty was put upon his trial, convicted and his punishment assessed at imprisonment in the penitentiary for a term of four years. Judgment was rendered in accordance with the verdict and from such judgment the defendant appealed to this court.

No bill of exceptions was filed preserving the action of the court during the progress of the trial; hence, there is nothing before us for review but the record proper. The information properly charges the offense in accordance with approved precedents. The record discloses that defendant waived formal arraignment and entered his plea of not guilty. The jury was duly impaneled and sworn to try the case. The trial seems to have been regular in all essential particulars; the verdict of the jury as well as the judgment in pursuance to it are in approved form.

Finding no error upon the face of the record, the judgment of the trial court should be affirmed, and it is so ordered.

All concur.