author: FABIS, J.

text:
    THE STATE v. BENJAMIN W. SMALL, Appellant.
    Division Two,
    December 4, 1917.
    1. VARIANCE: Question Not Raised in Trial Court. Tbe statute (Sec. 5114, R. S. 1909) requires that the trial court be allowed an opportunity to rule on the question of a variance between the proof and the allegations in the indictment, and if the question is not raised in the trial court it cannot be ruled in the appellate court. In this case the indictment charged that the defendant by false pretense obtained “the sum of five hundred dollars lawful money” and the evidence showed that a check for that sum was the medium of payment.

      2. FALSE PRETENSE: Indictment. No set form of an indictment charging the crime of obtaining money by false pretense can be prescribed. The aspects of such crimes are so variable that only a general or skeleton form can be formulated.
    3. -: -: Agent of Defendant. An indictment -which fails to charge that the attorney who transmitted the statement of two women upon which a claim for damages was paid by a railway company, was at the time the agent of defendant in that behalf, is defective. It was further necessary to charge, that the attorney in transmitting the statement of the w,omen acted in that behalf at the procurement or upon the instigation of defendant. It was not sufficient to charge that defendant and his accomplices, the two women, consulted and employed the attorney and placed the statement in his hands and that he communicated it to the company.
    4. -: -: Purported Statement. Án indictment which charges that an attorney exhibited to the agent of a street railway company a statement, “purported to be the statement” of two women, who falsely claimed to have been injured on said company’s street ear, and said agent, relying on the false and fraudulent statements communicated to him by the attorney of said women, to be true and being deceived thereby, etc., is defective. It should have charged that the exhibit was an actual statement of the women, and not a “purported” statement.
    5. -: -: Ownership: Receivers. The ownership of street railway property is not by an ordinary court receivership transferred to the receivers, but remains in the company; and an indictment for obtaining money by false pretense is not invalid because it charges that the money fraudulently obtained was the property of the company.
    6. -: Instruction: Following Indictment. An instruction which fairly follows a proper and sufficient indictment and the evidence adduced is not erroneous. .
    Appeal from Jackson Circuit Court. — lion. Ralph A. Latshaw, Judge.
    Reversed and remanded.

      Roland Hughes for appellant.
    '(1) The indictment nowhere charges that the defendant Small showed Lucas any statement or made to him any representation. It charges that Oldham, acting as attorney for Denham and Dobbins (not as the agent or attorney for Small), showed Lncas a statement signed by Denham and Dobbins, by which he was induced to pay, etc. It is not charged that Oldham was induced, urged, requested or was expected by defendant Small to show the statement to Lucas. The indictment does not connect in any way the defendant with the act of Oldham in showing this statement to Lucas —the thing which it is charged induced Lucas to pay th'e money to May Dobbins. People v. Green, 133- Pac. 331. (2) The indictment is bad. (a) It does not allege that the statement exhibited to Lucas purported to contain a true and correct statement of the facts, (b) It does not allege that the statement exhibited to Lucas was false and fraudulent, (c) It does not allege that said statements were made designedly, (d) It does not allege that the statements were exhibited to Lucas by the defendant Small or through Oldham at the direction of defendant Small, (e) It does not allege that Lucas relied upon, was deceived by or was induced to part with the money by reason of any statement or representation of the defendant Small; but, on the other hand, alleges that the representations and statements which moved Lucas to part with the money were made by Oldham. The principal instruction given by the court in this case is also erroneous for the reason that it attempts to, and does, follow the indictment and warrants the jury in finding the defendant guilty,. provided they should find and believe that Lucas relied upon the statements made to him by Oldham, without requiring them to find that the statements which Old-ham did in fact make to Lucas were made at the instigation of the defendant and as a part of the alleged false and fraudulent scheme to obtain money by false pretenses. ■ (3) The proof does not sustáin the allegations of the indictment, (a) The indictment charges that the defendant obtained the money of the Metropolitan Street Railway Company. The proof is that Harvey and Dunham, receivers of the Street Car Company, issued their check to Oldham & Henderson, (b) The indictment charges that Lucas was attorney for the Metropolitan Street Railway Company. The proof is that in this transaction he was the attorney for the receivers, under the direction of the United States Court, (c) The indictment charges that the claim which Old-ham presented was against the Metropolitan Street Railway Company. The proof is that he presented a claim against the receivers for damages done by them in operating the railroad, while in their control. Jami-son v. State, 37 Ark. 445. “A charge of embezzlement or larceny of money is not sustained by proof of the embezzlement or larceny of a bank draft, or check.” State v. Mispagel, 207 Mo. 557; State v. Casselton, 255 Mo. 210; State v. Schilb, 130 Mo. 142; State v. Cross-white, 130 Mo. 358; State v. Dodson, 72 Mo. 283; State v. Wissing, 187 Mo. 106; State'v. Bacon, 170 Mo. 161; Carr v. State, 104 Ala. 43; Carter v. State, 53 Ga. 326; Goodhue v. People, 94 111. 37; Weimer v. People, 186 111. 5.03; Hamilton v. State, 60 Ind. 153; Com. v. Weinfield, 45 Mass. 468; Com. v. Wood, 142 Mass. 459; Baker v. State, 31 Ohio, 314; Block' v. State, 44 Tex. 620. (4) The allegation that defendant obtained $500 in money from Metropolitan Street Railway Company is not sustained by proof that he received a check from Oldham & Henderson for $250 payable to May Dobbins, which he delivered to her. Leiske v. State, 131 S. W. 1126; same case, 60 Tex. Crim. App. 276; State v. Daniel, 83 S. C. 309; Jamison v. State, 37 Ark. 445. “The allegation of ownership of property obtained by false pretenses in an information for false pretenses is material, and must be proved as laid.” Martins v. State, 8 Pac. 709; same case, 17 Wyo. 319; Owens v. State, 83 Wis. 496.

      Frank W. McAllister, Attorney-General, and S. E. Shelley, Assistant Attorney-General, for the State.
    (1) The indictment is sufficient, (a) An indictment for obtaining property by false pretenses is sufficient, if the language used sets forth the elements of the offense, designates the person charged and indicates to him the crime of which he is accused. 11 R. C. L. 857; State v. Smallwood, 68 Mo. 194;. State v. Lichliter, 95 Mo. 405; State v. Donaldson, -243 Mo. 472; State v. Foley, 247 Mo. 628; State v. Young, 266 Mo. 730; State v. Loesch, 180 S. W. 878. (b) It is sufficient to allege in the indictment that the defendant, with criminal intent, designed the commission of the criminal act charged and employed an agent to carry out his purpose. Bishop’s New Criminal .Law (8 Ed.), secs. 310, 473; State v. Potter, 125 Mo. App. 472; State v. McCance, 110 Mo. 401; Nall v. State, 34 Ala. 262; State v. Bacon, 40 Vt. 456; Commonwealth v. Sacks, 43 L. R. A. (N. S.) 2, note. (2) The instructions, as a whole, are properly based on the facts in evidence, cover every phase of the case, correctly and fully state the law applicable thereto and are substantially correct. State v. Shout, 263 Mo. 375; State v. Young, 266 Mo. 730; State v. Loesch, 180 S. W. 878. (3) This case should not be reversed or remanded because of alleged variance between the allegations of the indictment and the proof, (a) It is not objected that there is a total failure of proof, nor could there be, as the evidence of defendant’s guilt is ample to justify its submission to the jury, (b) Variance between charge and proof must be raised in and be passed on by the trial court, and cannot be raised for the first time on appeal. R. S. 1909, sec. 5114; State v. Barker, 64 Mo. 285; State v. Wammack, 70 Mo. 411; State v. Sharp, 71 Mo: 221; State v. Smith, 80 Mo. 520; State v. Ballard, 104 Mo. 637; State v. Sharp, 106 Mo. 100; State v. Harl, 137 Mo. 256; State v. Dale, 141 Mo. 288; State v. Waters, 144 Mo. 347; State v. Decker, 217 Mo. 320; State v. Starr, 244 Mo. 173; State v. Foley, 247 Mo. 634. (c) Under an in-, dictment alleging that defendant, by false pretenses, obtained money of another, proof that he so obtained a check by means of which he accomplished his purpose, is sufficient to sustain said allegation. Bishop, New Criminal Law (8 Ed.), sec. 483; State v. Foley, 247 Mo. 634. (d) The receivers of the Metropolitan Street Bailway Company were bnt officers of the court, appointed to take possession of and manage the property of said company, and were, in effect, mere agents. 1st. Beceiver appointed by Federal Court, must manage property under his custody according to valid laws of the State where such property is situated. U. S. Compiled Statutes 1913, sec. 1047; 4 Federal Statutes Annotated, p. 386. 2nd. The appointment of a receiver, in the absence of statute, does not vest him with any title to the property in controversy, but merely gives him right to possession. High on Beceivers (4 Ed.), secs. 5, 134; Alderson on Beceivers, secs. 196, 197; 34 Cyc. 183, 184; Bogers Hdwe. Co. v. Bldg. Co., 132 Mo. 453. 3rd. There is no statute in Missouri vesting title to property under his control in receiver. 'Bogers Hdwe. Co. v. Bldg. Co., 132 Mo. 453. 4th. The title and ownership of property is undisturbed by the appointment of a receiver or the possession of said property thereby. High on Beceivers (4 Ed.), sec. 134; Alderson on Beceivers, sees. 4, 196, 197, 198. 5th. In an indictment against a person who has wrongfully taken or procured property in the possession of a receiver, ownership thereof is properly alleged in the name of the original owner. State v. Bivers, 60 Iowa, 381; State v. Coss, 12 Wash. 673. (e) Proof of obtaining, by defendant, property charged, through an agent is sufficient. Kelley’s Crim. Law, sec. 23; 1 Bishop’s Crim. Law, sec. 264; State v. Potter, 125 Mo. App. 472; State v. Bockstruck, 136 Mo. 350; State v. McCance, 110 Mo. 401; State v. Starr, 244 Mo. 173.
   FABIS, J.

Defendant, having been convicted in the criminal court of Jackson County, upon an indictment charging him with obtaining the sum of $500 by false pretenses, and having had assessed against him as punishment therefor imprisonment in the State Penitentiary fór a term of four years, after the conventional motions, has appealed.

An attack has been made upon the sufficiency of the indictment in this case. It is necessary therefore to set it forth in full herein. Formal parts, signatures, and verification omitted, this indictment reads thus:

“The Grand Jurors for the State of Missouri, duly impaneled, sworn and charged to inquire, within and for the body of the county of Jackson, upon their oaths present and charge that B. W. Small, Jennie L. Denham and May Dobbins, whose Christian names in full are unknown to said jurors, late of the county aforesaid, on the 12th day of April, 1915, conspiring, combining and confederating together for the purpose of cheating the Metropolitan Street Railway Company, a corporation organized and existing according to law, of its money, goods, chattels and personal property, did then and there unlawfully, feloniously and designedly with the felonious intent then and there to cheat and defraud the said Metropolitan Street Railway Company, a corporation as aforesaid, of its money, goods chattels, and personal property, represent, pretend and say to one John H. Lucas, the agent, attorney and servant of the Metropolitan Street Railway Company, a corporation as aforesaid, that on the 19th day of December, 1914, the said Jennie L. Denham and May Dobbins were then and there passengers upon a certain line known as the County Club Line of the Metropolitan Street Railway Company, a corporation, as aforesaid, and whilst they were passengers as aforesaid and being transported from a point at or near Forty-third Street and Main Street, to their homes at 1015 Locust Street, in Kansas City, Jackson County, Missouri, said car at or near Twenty-fourth Street and Grand Avenue, Kansas City, Jackson County, Missouri, was brought into violent contact and collision with the car of another company, which was known mid designated as the Strang Line, and which said car at inat point uses the tracks of the Metropolitan Street Railway Company, a corporation, as aforesaid, and as a result of the collision between the two cars, as aforesaid, that the said Jennie L. Denham and the said May Dobbins were then and there jerked and thrown in such a manner in said car that they received permanent and lasting injuries to their bodies; that their backs were wrenched and strained; theit all the internal organs of the said Jennie L. Denham and May Dobbins were injured; that they received a shock to their entire nervous systems, and as a result of the collision between the said car of the Metropolitan Street Railway Company, a corporation, as aforesaid, and the car of the Strang Line, as aforesaid, they received permanent and lasting injuries as herein-before set out.

“And furthering their design to cheat and defraud, they, the said B. W. Small, Jennie L. Denham and May Dobbins, and each of them, did then and there unlawfully, feloniously and designedly employ and consult an attorney at law, to-wit, one Milton J. Oldham, and did then and there place in the hands of the said Milton J. Oldham a statement signed by the said Jennie L. Denham and May Dobbins, setting out the collision between the two cars and the injuries received by them, the tenor and purport of which said statement is to these jurors unknown; and that the said Milton J. Oldham, acting as the attorney for the said Jennie L. Denham and May Dobbins, did then and there communicate to John H. Lucas, the agent, attorney and servant of the said Metropolitan Street Railway Company, a corporation, as aforesaid, and did then and there show and exhibit to the said John H. Lucas said statement, purported to be the statement of the said Jennie L. Denham and the said May Dobbins, setting out that they were then and there passengers upon a Country Club car, as aforesaid, and were on their way back to their homes in northerly direction in Kansas City, Jackson County, Missouri, when said car then and there collided with a car known as the Strang Line car, which uses the said Metropolitan Street Railway Company’s tracks at or near Twenty-fourth Street and Grand Avenue in Kansas City, Jackson County, Missouri, where the said collision took place. And the said John H. Lucas, relying on the false and fraudulent statements communicated to him by the said Milton J. Oldham, the attorney and agent of the said Jennie L. Denham and May Dobbins, to be true, and being deceived thereby, was induced by reason thereof, to pay, and did then and there pay to the said May Dobbins the sum of five hundred dollars lawful money of the United States of the value of five hundred dollars, of the money, goods, chattels and personal property of the said Metropolitan Street Railway Company, a corporation, as aforesaid, and the said B. W. Small, Jennie L. Denham and May Dobbins, by means and by use of the false and fraudulent statements and pretenses so communicated to the said John H. Lucas, the agent, attorney and servant of the said Metropolitan Street Railway Company, a corporation, as aforesaid, by them the said B. W. Small, Jennie L.- Denham and May Dobbins, did obtain of and from the said Metropolitan Street Railway Company, a corporation, as aforesaid, the sum of five hundred dollars of the money, goods, chattels and personal property of the said Metropolitan Street Railway Company, a corporation as aforesaid.

“Whereas, in truth and in fact, that on the said 19th day of December, 1914, the said Jennie L. Denham and LMay Dobbins were not then and there passengers upon a certain line known as the Country Club Line, which said Country Club car collided with a-car known and designated as the Strang Line car, at Twenty-fourth Street and Grand Avenue in Kansas City, Jackson County, Missouri; and that the said Jennie L. Denham and May Dobbins were not then and there jerked and thrown in such a manner in said car on account of said collision that they received permanent and lasting injuries to their bodies; that their backs were not wrenched and strained; that all the internal organs of the said Jennie L. Denham and-May Dobbins were not injured; and that they did not receive shocks to. their entire nervous systems, and that they did not receive permanent and lasting injuries as a result of the collision between the said car of the Metropolitan Street Railway Company, a corporation, as aforesaid, and the car of the Strang Line, as aforesaid, all of which they, the said B. W. Small, Jennie L. Denham and May Dobbins then and there well and truly knew, against the peace and dignity of the State. ’ ’

The foregoing indictment forecasts the facts in this. case, as these facts were shown by the evidence, and this evidence tended to prove the various allegations of the indictment. There was a variance as to the nature of the property obtained, since the evidence conclusively showed that a check of the receivers of the Metropolitan Street Railway Company formed the medium of payment, instead of lawful money of the United States, as the indictment charged. And, as foreshadowed in the last sentence aibove, the Metropolitan Street Railway Company was shown by the evidence to have been at ail the times set out in the indictment in the hands of certain receivers who were holding and operating the property of said railway under orders of the Federal Court.

Such other facts as we may deem essential to an understanding of the points which we find it -necessary to discuss, will be found in our opinion.

The contentions made are numerous. In the view which forces itself on us, it will not be necessary to consider all of these complaints.

I. It is most ably urged that there is upon this record a fatal variance between the proof and the allegations in the indictment, in that the indictment alleges that the property obtained by means of false pre£engeg was lawful money of the United States; whereas the proof conclusively shows that the thing of value actually obtained was a check for $500. There was, however, nothing said by defendant touching this alleged variance till he got into this court on appeal. He did not raise the question of variance before the learned trial judge even in his motion for a new trial. By the provisions of Section 5114, Revised Statutes 1909, the trial judge must be allowed an opportunity to pass upon the question of fatal variance vel non. [State v. Ballard, 104 Mo. l. c. 637.]

The above section does not mean that error may not here be successfully bottomed on the trial court’s abuse of the discretion lodged in him, by the provisions thereof. It does, however, require that the error urged be saved by an objection and an exception, or (in a proper situation) by an exception made in the trial court. .If such alleged variance be properly and timely called to the attention of the trial court, and he abuse the discretion lodged in him by the above statute, we may then review his action, a>nd if in such case we find tliat the trial court, should have allowed the variance, we may reverse because he did not do so. But the statute is clear that before error may be in this court bottomed on an alleged variance, the trial court must be first allowed to pass upon that question. 'Since no such opportunity to pass upon this contention was given to the court nisi, it results that this contention must be disallowed.

II. Defendant insists most earnestly that the indictment herein is bad, and that the trial court erred in overruling the motion in arrest, wherein the sufficiency of this indictment was challenged. We think this contention must be sustained. We pointed out in the case of State v. Young, 266 Mo. 723, as succinctly as we were able, the general contents of a sufficient indictment for the crime of obtaining money under false pretenses. Even the tyro at law will keenly appreciate the difficulty, amounting in practice to an impossibility of prescribing any set form for such an indictment. The aspects of such crimes are Protean; scarcely any two cases being found which are alike, as to their constitutive facts. So the best that may be done in prescribing a form- for indictments in such cases is to prescribe a general, or skeleton form, which shall merely embrace the necessary general allegations, leaving specificness to be eked out in any particular case by averments of the true facts of such case. Measured by general rules, which we have. announced- (State v. Young, supra; State v. Praker, 148 Mo. 143) we are constrained to hold that the indictment here is bad. It fails to aver that Old-ham, the attorney through whose hands the false and fraudulent statement was conveyed to the attorney and agent of the Metropolitan Street Railway Company, was at the time of so conveying and transmitting such statement, the agent of the defendant in that behalf. The indictment does charge that said Oldham was, in the fact of transmitting the false and fraudulent statement to one Lucas, the agent and attorney of Jennie Denham, and May Dobbins, who are the accomplices of the defendant in the felony charged; bnt however suf-’ ficient this fact may have been as a matter of proof under the charge of conspiracy, it was not a sufficient charge in the indictment. The indictment also incorrectly charges that the statement transmitted to Lucas merely “purported” to be the statement of Jennie L. Denham and May Dobbins. It was necessary that the false and fraudulent statement upon which Lucas was induced to act, and upon which he did act should be the statement of Jennie L. Denham, or May Dobbins, and not merely the purported statement of- one, or either, or both of them. Howsoever much an actual statement might have availed to work fraud and deception upon Lucas, it might well be that the law would not permit Lucas to be deceived in a felony case like this upon the color of a mere purported statement. Furthermore the indictment fails to charge that Oldham in transmitting and conveying the statement, or statements, of Denham and Dobbins to Lucas, acted in that behalf upon the procurement or instigation of the defendant. This was a necessary allegation. [State v. Fraker, 148 Mo. 143.] It is true that the indictment avers that defendant and his accomplices consulted and employed one Oldham, an attorney-at-law, and placed the statement in the hands of the latter, and that such attorney of Denham and Dobbins communicated the statement to Lucas. It was necessary to charge in addition to the above that Oldham did all of these things upon the procurement of defendant and defendant’s co-indictees. For these reasons we are convinced that the motion in arrest, bottomed upon the insufficiency of the indictment herein, should have been sustained.

III. The contention so strenuously urged upon our attention, that the property obtained by the false pretenses alleged was the property of the receivers of the Metropolitan Street Railway Company, and not that of the above company, as laid in tlie indictment, is we think untenable. For while the proof showed that when the cheat in question was worked on the Metropolitan Street Railway Company, this railway was in-the hands of certain .receivers appointed by the Federal Court, such latter fact was not, in our view, a variance. The effect of a receivership ordinarily is not to transfer title to the property of the company under receivership to the receivers. It usually has the effect to change the possession of the property of the company, so that for the purpose of an indictment for larceny or embezzlement, or obtaining money under false pretenses it may become permissible to allege ownership in him who has the possession; yet since it does not usually (and lacking a. definite showing to the contrary we must assume this to be the usual sort of ordinary court receivership of a corporation) have the effect to transfer the title of the property of the corporation to the receivers (34 Cyc. 183), the ownership of the property alleged to have been obtained was permissibly averred to be in the company itself.

IV. Some complaint is made of the instructions; particularly as to instruction one. We find no defects in this instruction, which are not referable to the insufficiency of the indictment. The instruction attacked fairly follows the indictment and the evidence adduced. This was proper; but since there were errors in the indictment, these' same errors crept into this instruction. When the indictment is recast in accordance with the views we express herein, we have no doubt the instructions will be recast so as to conform to the necessary changes made in the indictment.

Other errors are called to our attention, but since these are such as will no doubt be avoided upon another trial we need not lengthen these views by a discussion of them. For the error noted let the case be reversed and remanded for a new trial.

All concur.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    THE STATE v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant.
    Division Two,
    December 4, 1917.
    APPELLATE JURISDICTION: Construction of Federal Statute. The Supreme Court does not have appellate jurisdiction of a cause wherein a railroad company was fined one thousand dollars for shipping cars of cattle from Iowa into Missouri without having a certificate of inspection attached to the waybill, as provided by Sec. 717, R. S. 1909, on the theory that the Federal law on the spbject has supplanted the State statute, and wherein the position of the State is not that the Federal statute is void, or that Congress had no power to pass it, but that it does not cover the subject-matter. The case does not involve the validity of the Federal statute, or the constitutionality of the State statute, but merely the construction of the Federal act.
    Appeal from Grundy Circuit Court.— Eon. Fred Lamb, Judge.
    Transferred to Kansas City Court of Appeals.

      Fred S. Hudson and E. R. 'Sheets for appellant.

      Frank W. McAllister, Attorney-General, for the State.
   WILLIAMS, J.

Upon an information charging it with the violation of Section 717, Revised Statutes 1909, in that it shipped three carloads of cattle from Waucoma, Iowa, to Galt, Missouri, without having a certificate of inspection attached to the waybill as provided by certain rules promulgated by the Governor, State Veterinary and State Board of Agriculture under the authority of said statute, the defendant was tried before the circuit court of Grundy County, found guilty and a fine or penalty in the sum of one thousand dollars was imposed. Defendant appealed.

The only grounds now urged by the learned counsel for appellant in seeking a reversal of the judgment are stated in the brief as follows:

“First, that defendant’s motion to quash the information should have been sustained, because in issuing of the rules and regulations by the Governor, the State Veterinary and the State Board of Agriculture, they failed to comply with the provisions of Section 717, and that the rules are broader than the statute, and that from first to last in the issuing of said rules and regulations the statute was in no wise- followed, and as this is a penal statute subject to the rules of strict construction, nothing can be taken by intendment or read into the statute or a construction put upon it that the language of the statute does not fully bear out.
“Second, its demurrer should have been sustained, because it was an interstate shipment, and as Congress has legislated upon this subject, passed a quarantine law governing the shipment of cattle from one State into another the Federal law would prevail and the State law must therefore yield to the Federal, and if defendant is liable to a fine at all it would be under the Federal law and not under the State.”

A suit under the above statute being in the nature of a suit to recover a penalty or at most to impose a fine for the commission of a misdemeanor (as defined in the statute), the amount of the penalty or fine imposed being only $1000, this court would be without jurisdiction of the appeal unless some constitutional or Federal question is presented for our review.

A mere reading of the alleged grounds of error above mentioned will disclose that no such question is there presented. The validity of no Federal statute is drawn in question nor is any portion of our State or Federal Constitution sought to be construed. The appellant’s position is, that Congress has legislated concerning this exact subject-matter and that therefore the Federal statute supplants the State statute. The position taken by the State is not that the Federal statute is void, or that Congress has no power to pass such an act, but that the Federal statute mentioned does not cover the subject-matter of this case. Under such circumstances a determination of the case involves not the validity, but merely the construction of the Federal act, and hence no question is involved conferring jurisdiction here. [Art. 6, sec. 12, Mo. Constitution; Carlisle v. Railroad, 168 Mo. 652; Live Stock Com. Co. v. C., M. & St. P. Ry., 157 Mo. 518; Schwyhart v. Barrett, 223 Mo. 497, l. c. 499; Specialty Co. v. Glass Co., 243 Mo. 356.]

The cause is therefore ordered transferred to the Kansas City Court of Appeals for determination.

All concur.


author: WHITE, C. PER CURIAM:

text:
    THE STATE, Appellant, v. GOBER MORRIS.
    Division Two,
    December 4, 1917.
    1. GAMBLING DEVICE: Poker Table. A poker table not being one of the devices enumerated in Sec. 4750, R. S. 1909, it is necessary that the indictment point out in what manner the table was adapted to playing games of chance. ■
    2. -: -: Used in Connection With Cards. It is not the game, but the device, at which Section 4750 is aimed. The use of cards and poker chips in connection with the poker table, where they are not charged to be a part of the device, does not make the table a gambling device.
    3. -: -: -: Indictment. An indictment which simply charges that defendant set up and kept a certain table and gambling device, to-wit, a poker table, which was adapted and designed for the purpose of playing games of chance, and that cards and poker chips were used on said table for the purpose .of playing games of chance, but does not charge that defendant kept and set up or furnished the cards or chips, or in what manner the table was adapted or designed for the purpose of playing games of chance, is defective.
    4. -: Playing at Home. Section 4750, Revised Statutes 1909, does not prohibit one from allowing gambling on his premises. Another section (Sec. 4753, R. S. 1909) covers that offense.

      Appeal from Randolph Circuit Court. — Hon. A. W. •' Walker, Judge.
    Affirmed.

      Frank W. McAllister, ■ Attorney-General, and George V. Berry, Assistant Attorney-General, for the State.
    (1) This indictment is good and should have been so held by the trial court. It charges every essential element of the crime it denounces in plain, clear and careful language. It informs the defendant of the crime with which he is charged and meets every requirement of a correct indictment under the statute. Sec. 4750, R. S. 1909; Kelley’s Crim. Law and Prae., sec. 950; 20 Cyc. 906; State v. Holden, 203 Mo. 584; State v. Locket, 188 Mo. 422; State v. Mathis, 206 Mo. 610; State v. Solon, 247 Mo. 675; State v. Davis, 203 Mo. 6.17; State v. McKee, 212 Mo. 145; State v. Lee, 228 Mo. 492; State v. Rosenblatt, 185 Mo. 120; State v. Leaver, 171 Mo. App. 373; Portis v. State, 27 Ark. 360; Euper v. State, 35 Ark. 629; Riley v. State, 120 Ark. 450; Mimms v. State, 88 Ga. 458; Kolshorn v. State, 97 Ga. 343; Huff v. Comm., 14 Gratt 648; Comm. v. Sehatzman, 118 Ky. 628; Toney v. State, 61 Ala. 1; "Wren v. State, 70 Ala. 1; State v. Turner, 87 Kan. 451. The indictment is sufficiently 'definite as to time and place. Time was not of the essence of the offense and did not need to be stated more definitely. Any time within three years prior to the date of the finding of the indictment was sufficient. The indictment charges the offense to have been committed in Randolph County, and is sufficiently definite as to place. Sec. 5115, R. S. 1909; State v. Moore, 203 Mo. 626; State v. Ward, 74 Mo. 255; State v. Magrath, 19 Mo. 680; State v. Wade, 267 Mo. 266; State v. Fields, 262 Mo. 163; State v. Lee, 228 Mo. 494; State v. Wister, 62 Mo. 593; State v. Wilcoxen, 38 Mo. 372.

      Whitecotton & Wight for appellant.
   WHITE, C.

The State appeals from an order of the circuit court of Randolph County sustaining a motion to quash an indictment against the defendant, which indictment, omitting caption aind signature, is as follows:

“The grand jurors for the State of Missouri, duly impaneled, sworn and charged to inquire within and for the body of the county of Randolph in the State of Missouri, upon their oaths present and charge that Gober Morris, at the county of Randolph, in the State of Missouri, on the-day of--, 1916, did unlawfully and feloniously set up and keep a certain table and gambling device, to-wit, a poker table, on which said table a pack of cards and poker chips were then and there used and which said table was commonly called a poker table, and was adapted and designed for the purpose of playing games of chance for money and property and by means of which said table, pack of cards and poker chips certain games of chance commonly called poker, were then and there played for money aind property, and the said Gober Morris did then and there unlawfully and feloniously entice, induce and permit divers persons, to-wit, Kirt Wilcox, Mike Marietta, Hughey Smith, Charles Horn, Pluggy Moore, Roy Adams, Joe Togliatti and divers other persons to these grand jurors unknown, to play and bet at and upon said gambling device; against the peace and dignity of the State.”

It is an attempt to charge the defendant with keeping a gambling device under Section 4750, Revised Statutes 1909. An analysis of this indictment shows that it alleges:

That defendant did set up and keep a certain table and gambling device, to-wit, a poker table, which was adapted and designed for the purpose of playing games of chance, etc.

It further alleges that a pack of cards and poker chips were used on said table for the purpose of playing games of chance, but it does not allege that the defendant kept and set up or furnished the cards or chips. For aught that is charged in the indictment the poker chips and cards which were alleged to have been used on the táble were furnished by the players or someone other than the defendant.

It is not stated in whatfc manner the table was adapted and designed for the purpose of playing games of chance. The allegation is that “by means of which said table, pack of cards, and poker chips,” games of chance were played. This negatives the idea that the table, for which alone the indictment alleges defendant was responsible, could have been by itself a gambling device.

Informations in this form have been held insufficient by this court in various cases. [State v. Harper, 190 S. W. 272; State v. Wade, 267 Mo. 249.]

That section was: formerly construed in a way to hold an indictment, such as the one under consideration here, sufficient, but in the case of State v. Wade this court expressly overruled these earlier decisions. A poker table not being one of the devices enumerated in Section 4750, it^vould be necessary to point out in wh'at manner a table was, or could be, adapted to poker playing. Por anything that appears in tire indictment, and for aught this court knows about the game, one table is as wTell “adapted” for that purpose as another.

Counsel for the State urge that the use of cards and poker chips in connection with the table made the table a gambling device. It is not the game but the device at which tire statute is aimed. The Legislature did not intend, by this section, to prohibit one from allowing gambling on his premises, because there is another section of the statute, Section 4753, which covers that offense. Possibly it was the intention that the two sections should reach every form of permitting or inducing gambling by persons who profit by it.

If the indictment had stated that the defendant set up and kept a gambling device, to-wit, a table, cards and poker chips; that the said table was equipped with said cards and poker chips; and the said table, cards and poker chips were by him thereby adapted, devised and designed for the purpose of playing games of chance (or that by the use of packs of cards and poker chips upon and in connection with said table the same were adapted, devised and designed for the purpose of playing certain games of chance), commonly called poker, and became and thereby was a gambling device, to-wit, a poker table, and that by means of said table, pack of cards and poker chips certain games of chance commonly called poker were played, and that defendant enticed, etc., or words of similar import, then such information would have been sufficient under the ruling in the Wade ease and in the Harper case.

The judgment of the circuit court is affirmed.

Roy, Q., concurs.

PER CURIAM:

The foregoing opinion by White, C., is adopted as the opinion of the court.

All of the judges concur.


author: FAEIS, J. Valliant, J.:

text:
    THE STATE v. WALTER MILLS, Appellant.
    Division Two,
    December 4, 1917.
    1. INSTRUCTION: Assumption of Defendant’s Guilt. An instruction telling the jury that “flight raises the presumption of guilt, and if you believe from the evidence that the defendant, after having stabbed and killed Philip Carpenter,” etc., where the stabbing was not admitted by defendant, but unequivocally denied by him, is erroneous, in that it assumes that defendant “stabbed, and killed Philip Carpenter.” Even though the great weight of the testimony and defendant’s previous extra-judicial confession unerringly point to the falsity of his denial, it is still the province of the jury to decide whether or not it is false.
    2. -: Flight* It is proper to give an instruction on the subject of flight where the facts show that defendant four days after the stabbing of deceased left the scene of the -crime and went to a distant city and was there shortly afterwards arrested at a place and amid environments which might well argue an attempt at concealment; but the instruction should aptly embody the explanation which defendant gives on the witness stand of his alleged flight, or reason for his presence in said city.
    3.IMPEACHMENT: Former Conviction in Police Court. It was error to permit the defendant, being tried for a felony, to be asked by the State on cross-examination, in an effort to impeach him as a witness, whether he had ever been convicted of a crime, and upon his denial to permit the State to ask him if he had not been convicted of vagrancy in the police court, and upon his further denial, to call the police judge, in rebuttal, and permit him to show by the records that defendant had been convicted of vagrancy in said court.
    4. -: -: Criminal Offense. A conviction of vagrancy in a police court in violation of a city ordinance is not a conviction of a “criminal offense” within the purview of Sec. 6383, R. S. 1909. Those words are by the statute (Sec. 4925, R. S. 1909) confined to a conviction of a misdemeanor or felony in violation of a State law.
    5. INSTRUCTION ON MANSLAUGHTER: Failure to Give. A failure to instruct on manslaughter in a murder case should be specifically assigned as error in the motion for a new trial.
    6. -: When Authorized: No Assault. Insulting actions or gestures without an assault upon the person will not reduce the homicide to manslaughter. Where upon a provocation unknown to defendant, his companion struck deceased and a fight ensued between them, and while defendant was looking on but taking no part in the fight deceased came near him and struck at him but failed to hit him, and thereupon defendant stabbed and killed deceased, there was no manslaughter in the case, and no instruction on the subject should have been given.
    7. INSTRUCTION ON CIRCUMSTANTIAL EVIDENCE. Where not a single element in the case depends for its proof upon circumstantial evidence no instruction on that subject should be given.
    8. ACCESSORIES: Before the Fact. Where the fight which culminated in death came up suddenly, no words passed between defendant and his companion until deceased was stabbed and fell, and when deceased asked a negro woman who was talking with defendant’s companion if there was “anything doing” the companion struck deceased and a fight between them began, and defendant without saying or hearing a word stood by with his knife in hand till a favorable opportunity presented itself and then stabbed and killed deceased, no instruction as to accessories before the fact should be given.
    Appeal from Cooper Circuit Court. — Hon. J. G. Slate, Judge.
    Reversed and remanded.

      L. O. Schaumburg for appellant.

      (1) The court failed to instruct the jury as to all the law arising in the case, contrary to Sec. 5231, R. S. 1909. Whatever grades of crime the defendant’s testimony tended to prove, should have been covered by appropriate instructions based upon his testimony, and the failure of the court so to instruct the jury constitutes reversible error. State v. Richardson, 194 Mo. 315; State v. Heath, 221 Mo. 565; State v. Sebastian, 215 Mo. 58; State v. Banks, 73 Mo. 592. (2) Defendant testified that the deceased first struck at Mm, whereupon he jumped back, pulled his hands out of Ms pockets and struck at deceased with a knife, and that when he struck at deceased, he did not intend to kill him. The jury were not instructed as to manslaughter in either degree. Defendant was clearly entitled under his testimony to have the jury instructed for a lower grade of homicide than either of the degrees of murder. State v. Palmer, 88 Mo. 572; State v. Branstetter, 65 Mo. 149; State v. Banks, 73 Mo. 592; State v. Partlow, 90 Mo. 626. (3) Defendant was convicted on circumstantial evidence alone, and the court, therefore, should have properly instructed the jury in reference to this character of evidence. No such instruction was given. State v. Moxley, 102 Mo. 388. (4) Testimony was introduced to- prove verbal admissions charged to have been made by defendant. A cautionary instruction as to verbal admissions should have been given by the court. State v. Moxley, 102 Mo. 390. (5) The testimony in this case is insufficient on which to base a flight instruction. The lone fact that defendant went to another point within the State several days after the homicide was committed and before he was charged with the crime for which he was tried, is not sufficient basis for an instruction to the effect that defendant fled the country, and tried to avoid arrest and trial. State v. Evans, 138 Mo. 127. (6) It was the absolute right of the defendant to have the jury determine who in fact stabbed and killed the deceased, and the court invaded that right in assuming in the instruction that defendant stabbed and killed Philip Carpenter, as charged in the information. The defendant positively denied that he stabbed the deceased. The determination of this controverted fact, by the jury, was of the utmost importance to defendant, for, if it believed defendant’s testimony touching this point, he could be convicted of no crime under the information in this case. State v. Vaughan, 141 Mo. 521; State v. Lee, 182 S. W. 974. (7) Defendant sought to explain his departure from the community in which the homicide was committed, and his testimony tended to show that his purpose for going away was not to avoid arrest and trial, but that he and four others arranged previous to March 31, 1917, to go to Kansas City, Mo. Instruction H. disregarded defendant’s testimony touching this point, and is not broad enough to include defendant’s explanation. State v. King, 78 Mo. 558; State v. Harris, 232 Mo. 324; State v. Fairlamb, 121 Mo. 137; State v. Schmulbach, 243 Mo. 539; State v. Miller, 255 Mo. 231. (8) Tinder the evidence, the jury should have been required to find that defendant, if guilty of the crime, was the person who delivered the fatal blow. The record in this case discloses no evidence warranting the conviction of defendant on the ground that he was present, “aiding and abetting” in the perpetration of the alleged homicide. There being no evidence to support it, the court erred in giving the instruction. State v. Chambers, 87 Mo. 406. (9) The court erred in requiring defendant to testify as to a proceeding against him in a police court. The violation of a city ordinance is not a criminal offense and this court has uniformly held that a prosecution for the violation of a city ordinance is a civil proceeding. St. Louis v. Smith, 10 Mo. 439; Delaney v. Police Court, 167 Mo. 678; State v. Muir, 164 Mo. 610; St. Louis v. Tielkemeyer, 226 Mo. 140. Sec. 6383, R. S. 1909, therefore, does not authorize a defendant in a criminal case to be impeached by the introduction of evidence to the effect that he was convicted for the violation of a city ordinance.

      Frank W.• McAllister, Attorney-General, and E. M. Connor, Assistant Attorney-General, for the State.

      (1) A general assignment in a motion for new trial that the court erred in failing to instruct on all the law governing the case is insufficient. Appellant must point out specifically in his motion for new trial wherein the court failed to instruct. State v. Snyder, 263 Mo. 668; State v. Kretschman, 232 Mo. 29; State v. West, 202 Mo. 128; State v. Connors, 245 Mo. 477; State vi Mc-Garver, 194 Mo. 742; State v. Delbitt, 191 Mo. 51; State v. Conway, 241 Mo. 291; State v. Dockery, 243 Mo. 599; State v. Sykes, 248 Mo. 712. (2) Under the evidence in this case, the defendant was not entitled to an instruction on manslaughter. State v. Miller, 263 Mo. 335; State v. Alcorn, 137 Mo. 121; State v. Johnson, 129 Mo. 26; State v. Melton, 102 Mo. 683; State v. Smith, 114 Mo. 406; State v. Musick, 101 Mo. 260; State v. Jones, 86 Mo. 623; State v. Sykes, 248 Mo. 708. (3) The appellant’s defense being self-defense, it was not error not to instruct the jury on circumstantial evidence. State v. Gartrell, 171 Mo. 489; State v. Donnelly, 130 Mo. 642; State v. Fairlamb, 121 Mo. 137; State v. Robinson, 117 Mo. 649. (4) The evidence was sufficient to give an instruction on flight. State v. Lewkowitz, 265 Mo. 628; State v. Brooks, 92 Mo. 556; State v. Smith, 114 Mo. 416; State v. Griffin, 87 Mo. 608; State v. Walker, 98 Mo. 95; State v. Asa Sparks, 195 S. W. 1031. (5) The evidence in this case fully supports the giving of the instruction as to accessories before the fact. State v. Crahb, 121 Mo. 554; State v. Walker, 98 Mo. 95; State v. Nelson, 98 Mo. 414; State v. Miller, 100 Mo. 606; Kelly’s Criminal Law and Procedure (3 Ed.), sec. 47. (6) Prosecutions by a city are not criminal cases. They are civil in form only and of a quasi-criminal character. State v. Gordon, 60 Mo. 383; In re Millér, 44 Mo. App. 127; Kansas City v. Clark, 68 Mo: 588; Carrollton v. Rohmberg, 78 Mo. 547; St. Louis v. Shoenbuseh, 95 Mo. 621. The municipality is the agent of the city and a prosecution by the city is a bar to a prosecution by the State for the same offense in the State courts. Lynch v. Commonwealth, 35 S. W. (Ky.) 264; 1 Dillon’s Municipal Corporations (4 Ed.), secs. 367-368; State v. Simonds, 3 Mo. 413; State v. Cowan, 29 Mo. 330; State v. Thornton, 37 Mo. 360; State v. Gordon, 60 Mo. 383. The courts of this State have always held that a conviction in a municipal court is a bar to the subsequent prosecution by the State for the same offense. State v. Simonds, 3 Mo. 414; State v. Cowan, 29 Mo. 330; State v. Hannah Thornton, 37 Mo. 361; Pilot Grove v. McCormick, 56 Mo. App. 530; State v. Freeman, 56 Mo. App. 579.
   FAEIS, J.

Defendant, tried in the circuit court of Cooper County, for murder in the first degree, for that, as it was charged in the indictment, he stabbed and killed one Philip Carpenter, was found guilty and his punishment assessed at death. From this conviction and the sentence bottomed thereon, he has, after the conventional motions, appealed.

The facts of this homicide as the, record discloses them run about thus: On the night of March 31, 1917, Philip Carpenter (hereinafter for brevity called deceased), and one Louis Orr, both of whom were printers, were together in the town of Boonville. After having taken a number of drinks of liquor, until deceased was somewhat under the influence thereof, and until Orr, as lie himself admits, was very drunk, they started about 11:30 o’clock at night down a certain alley in the town of Boonville, along which, it seems some considerable portion of the negro population of Boonville resides. After they had proceeded some little distance Orr stopped, but Carpenter kept going until he had reached a point somewhere near the center of the alley. Walking in front of deceased as he traversed this alley was one Stella Goosberry, a negress, who, it seems, lived with her husband in a house situate somewhere in the vicinity. This negro woman, who, as stated, was in front of deceased some little distance, and considerably in front of Orr, who had stopped, met about the center of the alley two negro men, one Ed. Porter, and defendant. This negress seems to have known both Porter and defendant; the former intimately, and the latter only casually. Upon meeting Porter and defendant, she complained to Porter that some men were following her, and asked him to stand at the point where she had met him, until she reached her home. Almost immediately after this, and while the three negroes were still near each other, deceased came up, and walking between Porter and the negro woman, said to the latter “is there anything doing?” Thereupon Porter struck, or struck at, deceased (it does not clearly appear which); the two engaged in a fight, and the negro woman ran. This woman was a witness in the case and the facts so far related turn almost wholly upon her testimony.

Shortly after this, Orr, who had accompanied deceased into the alley, came running out and stated to a man whom he met, that deceased was in trouble down the alley. The alarm spread and certain persons went down the alley, and found deceased lying therein, stabbed and fatally wounded. A knife had been driven into the back of his neck, at the point of juncture of the head with the spinal column, almost severing his head from his body. From this wound he died some twelve hours later.

For some days defendant was not suspected of this murder, but Orr, who had been the companion of deceased during the evening on which deceased was killed, was arrested and held in custody for some three or four days. Subsequently the defendant,'who had left Boon-ville, and gone to Kansas City, was arrested and charged with this murder. Upon being arrested he confessed to' the marshal and to the sheriff, that he had stabbed the deceased, and attempted to tell them fully and in detail how the murder was committed. He told these officers of his going through the alley with Porter; of the meeting of the negro woman by Porter and him, and of part of the conversation which the woman had with Porter. But he did not hear the remark made by deceased to the negro woman. He told of the fight between Porter and deceased, and touching his own connection therewith said that he stood by without taking any part for some time, but that he had his knife partly open in his pocket with his hand on it; that deceased in the course of the fight between him and Porter, came close to defendant and struck at him, and that thereupon he struck with his knife and stabbed deceased in the neck.

Defendant upon the trial testified as a witness in his own behalf. He there denied stabbing deceased at all, but did testify that deceased struck at him either with his hand or some weapon, it was too dark, he swore, for him to distinguish which, and that thereupon he struck at deceased with his hand, in which he held a knife; but that he did not touch deceased, and beyond striking at deceased when the latter struck at him, he took no part whatever in the fight between Porter and deceased. He denied having left Cooper County for the purpose of avoiding arrest and trial for the stabbing of deceased. He explained his presence in Kansas City by the statement that he and three others of his color and acquaintance had before the killing already agreed to go to Kansas City as soon as they were paid off, and that he went as soon as he got his money. Whether the other three went to Kansas City the record does not disclose.

At the dose of defendant’s cross-examination he was asked by counsel for the State, if he had ever been convicted of any crime, and he denied that he had been. Thereupon he was specifically asked by counsel for the State if he had not been convicted of vagrancy in the police court of the town of Boonville. 'He denied that he had ever been so convicted; whereupon, in rebuttal, the State offered the police judge, who testified that the records kept by the witness’s predecessor showed that defendant had been convicted of vagrancy in the police court of the town of Boonville, on the 10th day of February, 1913.

The trial resulted, as stated, in finding defendant guilty of murder in the first degree, and in a sentence to death as punishment therefor.

Such other facts as may be necessary to an understanding of the points we find ourselves compelled to discuss, will be found in our opinion.

Defendant urges upon our attention numerous alleged errors. Many of these we find ourselves unable to review for lack of proper preservation of them for review. Some of the points urged, hut not properly saved, we find ourselves compelled to review, because they may arise upon the next trial, since, for errors appearing of record, we find it necessary to reverse and remand the case.

Among other matters urged, defendant complains that the learned trial court erred (1) in instructing the jury upon the presumption arising from flight, for that, (a) the facts shown by the record do not warrant any instruction upon the subject, and (b) the instruction given was bad; (2) in allowing defendant to be questioned, in an effort to impeach him about his conviction in the police court of vagrancy, and in offering testimony of such conviction, when defendant denied the fact; (3) in failing to instruct the jury (a) on manslaughter, and (b) on circumstantial evidence, and (4) in instructing the jury on accessories before the fact. These in their order.

I. The instruction given by the court on flight, read thus:

“The court instructs the jury that flight raises the presumption of guilt, and if you believe from the evidence that the defendant, after having stabbed and killed Philip Carpenter, as charged in the information, fled the country, and tried to avoid arrest and trial, you may take that fact into consideration in determining his guilt or innocence. ’ ’

It is clear that this instruction by its terms assumes defendant’s guilt and begs the question upon the most vital issue in the case. It was the province of the jury to find and say whether the defendant “stabbed and killed Philip Carpenter,” and not the province of the court to assume this fact as true. If the stabbing had been admitted by defendant and his defense had been self-defense, no harm would have flowed from this assumption. But here defendant unequivocally denied that he stabbed deceased, and while the great weight of the testimony, and even his own extra-judicial confessions, unerringly point to the falsity of his denial. yet we have uniformly held that the instructions must take their color from the evidence, and that it is error to disregard the defendant’s testimony (State v. Weinhardt, 253 Mo. 629) unless the physical facts contradict such testimony beyond dispute or cavil. If, however, in the instant case the jury had seen fit to believe the testimony of the defendant, he was guilty of no crime and must have been acquitted. It was defendant’s right to have the jury pass upon this vital issue as to who stabbed the deceased, and the court could not invade that right and assume that defendant did it. [State v. Vaughan, 141 Mo. 514; State v. Lee, ante, p. 121, 182 S. W. 972.]

Upon the contention that no instruction whatever upon the subject of flight was warranted by the facts, we are not able to agree with learned counsel. These facts were that on the Wednesday which followed the stabbing of deceased on Saturday night preceding, defendant left Cooper County and went to Kansas City, where he was shortly after arrested at a place and under environments which might well argue an attempt at concealment. We think that the jury had the right to consider whether defendant’s admitted going away from the scene and county of the alleged homicide, was or was not for the purpose of avoiding arrest and trial for this crime. But we are likewise thoroughly convinced that the instruction (or a separate one) which leaves to the jury to find the intent with which defendant left Cooper County and went to Kansas City, ought also aptly to embody the explanation which defendant gave upon the witness stand of his alleged flight, or reason for his presence in Kansas City. [State v. Potter, 108 Mo. 424; State v. Fairlamb, 121 Mo. 137; State v. Harris, 232 Mo. 317; State v. Walker, 98 Mo. 95; State v. Sparks, 195 S. W. 1031.]

We are constrained to conclude' that in the two behalves mentioned' the instruction on flight as given was bad, and that the giving thereof, in the form set out, constitutes reversible error.

It. We are likewise of the opinion that the learned trial court erred in allowing defendant to be asked, in an effort to impeach him as a witness, whether he had not been convicted of vagrancy m the police court of the town of Boonville. It is true that defendant denied that he had ever been so convicted. If the matter had ended there, no harm with certainty could be said to have accrued to defendant. But upon denying the fact of conviction, the police judge was sworn and was allowed to contradict defendant by orally testifying that the police court records made by one of his predecessors showed defendant’s conviction of vagrancy in February, 1913. We think this was error. Passing the question of the incompetency of the oral testimony of the police judge to prove what was shown by a record made by his predecessor (State v. Woodward, 191 Mo. 617), the testimony was rendered more hurtful by the fact that defendant was impeached by a showing that he had upon this matter of his conviction sworn falsely, as well as by the fact itself of a conviction for a thing which must have presented itself to the triers of fact as a criminal offense.

We are of the opinion that a conviction in a police court of a violation of the ordinances of a town or a city is not such a conviction as falls within the purview of section 6383, Revised Statutes 1909. Indeed, it was long doubted whether a conviction for a misdemeanor before a justice of the peace, or in a circuit court, was within the statute. This latter doubt was set at rest in the case of the State v. Blitz, 171 Mo. 530, where it was held that a conviction of a misdemeanor' is a conviction “of a criminal offense” within our statute, which reads: “Any person who has been co:aviráed of a criminal offense is, notwithstanding, a competent witness; but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining shall not be con-eluded by his answer.” [Sec. 6383, R. S. 1909.] (Italics are ours.)

We are of' the opinion that neither by our decisions, nor by statute, is a conviction for vagrancy in a city court “a criminal offense” within the purview of the above quoted statute. For while the procedure, or some of it, in a prosecution for the violation of a town or city ordinance is criminal in form, that is, it follows the forms of the criminal procedure, we have nevertheless uniformly held that it is but a civil action to recover a debt or penalty due the city for the infraction of its ordinances. [St. Louis v. Tielkemeyer, 226 Mo. l. c. 141 ; State v. Muir, 164 Mo. 610.]

In the Tielkemeyer case, supra, it was said by

Valliant, J.:

“In City of Kansas v. Clark, 68 Mo. 588, it was held that a prosecution under a city ordinance for keeping a gambling table contrary to the ordinance was not a prosecution for a crime, but a civil suit to recover a penalty, the court saying: £Nor do we regard the violation of the ordinance under consideration as a crime, since “a crime . . . is an act committed in violation of a public law” (4 Black., Com., 5); a law coextensive with the boundaries of the State which enacts it. Such a definition is obviously inapplicable to a mere local law or ordinance, passed in pursuance of, and in subordination to, the general or public law, for the promotion and preservation of peace and good order in a particular locality, and enforced by the collection of a pecuniary penalty. ’ That language was quoted and followed as the correct rule of law in State v. Muir, 164 Mo. 610, in which it was held that a conviction under a city ordinance against gaming was not a bar to a subsequent prosecution for the same act under the State statute; in that case the court said that the prosecution under the city ordinance was a civil action, and quoted Cooley’s Const. Lim. (6 Ed.), p. 239, to sustain the doctrine. In Canton v. McDaniel, 188 Mo. 207, l. c. 228, the converse of the proposition was also held, that is, that an acquittal in a prosecution under the State statute was not a bar to a prosecution to recover the penalty-prescribed in a city ordinance for tbe same act. In City of St. Louis v. DeLassus, 205 Mo. 578, it was again said that a prosecution under a city ordinance to recover a penalty was a civil action, and that an ordinance was-not invalid because it forbade and imposed a penalty for an act which the State statute declared to be a crime and for which it prescribed a penalty, and also that the ordinance was not invalid because it imposed a higher pecuniary penalty for the offense than that imposed by the statute.”

But, while they would appear to be sufficient, we are not called on wholly to rely upon the adjudged cases, to prove that a violation of a city ordinance is not a criminal offense. Our statute has by self-contained delimitations defined for us the meaning of this term. Section 4926, Revised Statutes 1909, quite obviously confines “criminal offense” to either a misdemeanor or a felony, as witness this language:

“The terms ‘crime,’ ‘offense,’ and ‘criminal offense,’ when used in this or any other statute, shall be construed to mean any offense, as well misdemeanor as felony, for which any punishment by imprisonment or fine, or both, may by law be inflicted.”

This we think settles the question without the necessity of considering the evil which might well flow from our writing into the law that a citizen convicted of failing to shovel the snow from an abutting sidewalk, or of failing to park an automobile at the prescribed angle, could have such facts shown years afterward to impeach his veracity'in a trial for murder, or rape,, or treason.

III. Touching the complaint of defendant that the court erred in failing to instruct on manslaughter, it would be sufficient for the uses of our present discussion to say that the motion for a new trial does not with that speeifieness of assignment which we require, mention this alleged error. [State v. Snyder, 263 Mo. 664] This would suffice here, hut since upon a new trial, which for the errors noted above we must order herein, the point may again arise, we would as well say that in our view there is no manslaughter in this case. It is at the best which may be said of it murder in the second degree.

We have had occasion in numerous cases to define manslaughter in the fourth degree, and to set out the necessary facts which must appear in a case before an instruction for this grade of homicide is warranted. [State v. Gordon, 191 Mo. l. c. 125; State v. Myers, 221 Mo. l. c. 620; State v. Heath, 221 Mo. l. c. 586.] In the case of State v. Myers, supra, this court said:

“In State v. Gordon, 191 Mo. l. c. 125, the rule as applicable to this subject was thus announced: ‘At common law, words of reproach, howsoever grievous, were not provocation sufficient to free the party killing from the guilt of murder, nor were contemptuous or insulting actions or gestures without an assault upon the person, nor was any trespassing against lands or goods to have the effect to reduce the guilt of killing to a grade of manslaughter; the provocation must consist of personal violence. [East’s Pleas of the Crown, 233; 4 Blackstone, Com., 201; State v. Wieners, 66 Mo. 13.] And the common law rule in this respect is firmly established in this State by a long line of decisions.”

Measured by this rule, there is no ground for an instruction on manslaughter in the fourth degree. It is manifestly alone upon the testimony of defendant, on which, if at all, we must find a basis for such an instruction. According to defendant, he and his companion Porter met deceased, whom defendant did not know, and against whom he harbored no disclosed enmity. Suddenly upon a provocation unknown to defendant, Porter struck deceased and a fight ensued between deceased and Porter. While defendant was looking on, but taking no part in this fight, deceased came around near him in the course of the melee and struck at defendant but failed to hit him. Thereupon defendant stabbed and killed deceased. So we hold that there was no manslaughter of any degree in this case upon the proof as the instant record shows it.

IV. Much of what we say above also applied to the complaint of defendant that there should have been given an instruction on circumstantial evidence. This point is not properly j. a. saved for review. But lest it again arise we would as well dispose of it by saying that no instruction on circumstantial evidence was called for in this case. Not a single element in the case depended for its proof on circumstantial evidence. A man is found dying in an alley with his head almost severed from his body. A witness in the case sees a fight arise in the presence of defendant between the companion of defendant and the dead man. Defendant when arrested confesses that while his companion and deceased were fighting he stabbed deceased in the neck from behind. The facts refute the contention. The authorities are all one way in holding that in such a ease it is not incumbent upon the trial court to instruct on circumstantial evidence. [State v. Bobbitt, 215 Mo. 10; State v. Crone, 209 Mo. 316; State v. Donnelly, 130 Mo. 642; State v. Robinson, 117 Mo. l. c. 663.]

V. Since this case must be retried, should the testimony which is pertinent be no stronger than it is upon the instant record, we think the instruction as to accessories before the fact should be omitted. The evidence discloses that the fight which culminated in the killing of deceased came up suddenly. No words passed between Porter and defendant till the deceased was stabbed and fell, so far as the record shows. When deceased asked the negro woman if there was anything doing Porter struck him and the fight began. Defendant without saying a word and without hearing a word, stood by with his knife in his hand, till a favorable opportunity presented itself, and he then stabbed and killed deceased. Therefore while the distinctions between principals and accessories before the fact have been so far obliterated in this State as to render a discussion of the subject largely academic, we see no warrant for the giving of this instruction under the facts here. Defendant either stabbed and killed deceased, or he was merely an innocent bystander, and should be tried as a principal.

Other matters are urged upon our attention, but all such fall into that large category of things and matters which will not necessarily happen again.

For the errors pointed out let the case he reversed and remanded for a new trial not inconsistent with what we have said herein.

All concur.