text:
    THE STATE v. WIGGER, Appellant.
    Division Two,
    May 22, 1906.
    1. CONTINUANCES: Three Times Without Trial: Filing New Information: Terms of Court Excluded. When the prosecuting attorney dismisses an information previously filed and files a new information, in determining whether defendant is entitled to his discharge on the ground of three continuances, the terms of court which lapse under the prior information must be excluded.
    2. ACCOMPLICE: Evidence. The evidence of an accomplice is competent against his accomplice on trial for the same offense.
    3. -: -: Uncorroborated. The evidence of an accomplice, even though uncorroborated, is sufficient to sustain a conviction if believed by the jury.
    4. ARSON: Sufficiency of Evidence. Evidence held sufficient to justify a conviction of arson.
    5. EVIDENCE: Impeaching Witness: Charged With Criminal Offense. The mere fact that a witness has been charged with a criminal offense does not affect his credibility, and evidehce as to such charge is inadmissible for that purpose.
    6. REMARKS OF ATTORNEY: Outside of Record: Confession of Accomplice. While it was competent for the prosecuting attorney, in his argument to the jury, to discuss the testimony of defendant’s accomplice, given before the jury in the presence of the court, it was not competent for him to state what the accomplice had told him in his office concerning defendant’s guilt, since neither he nor the accomplice had testified to such statements, and defendant had had no opportunity to cross-examine either upon that question, nor to object to the competency of such statements made in the absence of defendant.
    Appeal from St. Francois Circuit Court.—Eon. Chas* A. Killian, Judge.
    Reversed and remanded,

      W. 8. Anthony and Jasper N. Burks for appellant.
    (1) The motion to discharge the defendant should have been sustained. Secs. 2641, 2642, 2643, 2644, R. S. 1899; Brooks v. People, 88 111. 327. (2) It was error for the prosecuting attorney to ask witnesses for defendant if they were not charged with the crime of robbery. It is elementary that a mere charge is no evidence of guilt. State v. Smith, 125 Mo. 2; State v. Taylor, 98 Mo. 240; State v. Donnelly, 130 Mo. 642; State v. Blitz, 170 Mo. 530. (3) There can be no question as to the impropriety and highly prejudicial character of tbe remarks of the prosecuting attorney in his closing argument to the jury concerning what Clarence Wigger, the accomplice, had confessed in his office concerning the guilt of the defendant and implicating him in other crimes and in attempting to give his reasons for so doing to the jury, and these remarks should not have been indulged in. State v. Furgerson, 152 Mo. 93. (4) The court should have sustained the demurrer to the testimony offered by the defendant at close of case on the part of the State. State v. Roy, 83 Mo. 268; State v. Grady, 84 Mo. 220; State v. Nettles, 153 Mo. 464.

      Herbert 8. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for the State.
    (1) The court did not err in overruling the motion to discharge the defendant on the ground that he had not been brought to trial before the close of the third term after the information was filed. Sec. 2642, R. S. 1899; Panning v. State, 14 Mo. 387; Kelley’s Crim. Law & Prac., see. 345; State v. Wear, 145 Mo. 222; State v. Robinson, 12 Mo. 592. (2) The court did not err in refusing an instruction in the nature of a demurrer to the evidence requested by the defendant at the close of the evidence offered by the State. Thej testimony of Clarence Wigger, if believed, made a clear case against the defendant, and the credibility of the witness, even though an accomplice, was a matter for the consideration of the jury, and not for the court. State v. Warner, 74 Mo. 83; State v. Hill, 96 Mo. 357; State v. Williams, 149 Mo. 496; State v. Dewitt, 152 Mo. 76; State v. Franke, 159 Mo. 535. Even though the witness was an accomplice, the uncorroborated testimony of such a witness is sufficient to sustain a conviction. State v. Williamson, 106 Mo. 162; State v. Black, 143 Mo. 166; State v. Tobie, 141 Mo. 561. (3) The court did not err in permitting the prosecuting attorney to ask witness Aubuchon whether or not he stood charged in the circuit court of St. Francois county with the crime of .robbery. Such questions are permissible on cross-examination for the purpose of discrediting the witness. State v. Martin, 124 Mo. 523; State v. Pratt, 121 Mo. 574; State v. Taylor, 118 Mo. 153; Wharton’s Crim. Evi., sec. 474. (4) Appellant complains of error because the court permitted the prosecuting attorney in his closing argument to the jury to state that Clarence Wigger had confessed to him, implicating the defendant in the crime. As Clarence Wigger was a witness for the State and had testified directly and in detail to the defendant’s guilt, it is difficult to see in what respect the reference of the prosecuting attorney to that witness’s confession could have prejudiced defendant. State v. Punshon, 133 Mo. 54; State v. Guy, 69 Mo. 430; State v. Turner, 76 Mo. 350.
   GANTT, J.

On the 31st day of May, 1904, the prosecuting attorney of St. Francois county filed an information charging the defendant with the crime of arson in the third degree for the burning of a saloon, the property of Z. B. Jennings, on the 20th of January, 1903. A change of venue was taken from the regular judge of said circuit, and Hon. E. M. Dearing, judge of the Twenty-First Judicial Circuit, was called as special judge to try the case.

The defendant was duly arraigned, entered his plea of not guilty, was tried and convicted, and his punishment assessed at a term of five years in the penitentiary. From the sentence imposed he has appealed to this court.

I. The first question arising on this appeal is the propriety of the ruling of the circuit court in denying the defendant’s motion for his discharge on the ground that the State had failed to bring him to a trial at the end of the third term of the court after the information was filed. On the hearing of this motion, it appeared ■that another information, charging the defendant with this same offense, had been filed in the same court on the 30th day of July, 1903; that the defendant was admitted to bail on said first information, and at the August term, 1903, of said court said cause was continued on the application of. the State, and was again continued on the application of the State at the November term, 1903, of said court. At the May term, 1904, the prosecuting attorney entered a nolle prosequi to said first information, and on the same day filed another information charging the defendant with the same offense, the latter being the information in this cause upon which the defendant was tried and convicted. The record does not show on whose application the case was continued on the new information, further than that the defendant entered into a new recognizance for his appearance at the August term, 1904, of said court. At the August term, 1904, the case was continued on the application of the State until the 29th of August, 1904, and on the last-named date it was again continued for want of time to try the same until the next term of court. At the November term,1904, of said court, the defendant filed his motion for discharge, which was, as already said, overruled by the court and exceptions properly saved.

The contention of the defendant is that the two in-formations should be treated as one, and that the entering of the nolle and the filing of the new information did not affect the right of the defendant to his discharge ; that in contemplation of law it was one and the same case, and the defendant was entitled to his discharge under sections 2642, 2643 and 2644, Revised Statutes 1899. Section 2642, Revised Statutes 1899, provides that, “If any person indicted for any offénse, and held to answer on bail, shall not be brought to trial before the end of the third term of the court in which the cause is pending which shall be held after such indictment found, he shall be entitled to be discharged, so far as relates to such offense, unless the delay happened on his application, or be occasioned by the want of time to try such cause at such third term.” This section and its kindred sections have been in force in this State for a great number of years. It 'came before this court for construction as early as Robinson v. State, 12 Mo. 595, 596, and it is held in that case that the term at which the indictment is found is not to be included in the estimate of the terms at which the defendant is entitled to be tried. [State v. Haines, 160 Mo. 555.] In Fanning v. State, 14 Mo. 387, the point was made as now is made, by the defendant in that case, but it was held by this court that when the first indictment was nol. pros’d, it was no longer in force, and the new indictment alone and the time it was pending was to be considered.

It is therefore clear under the decisions of this court in the construction of sections 2641, 2642 and 2643, that terms of court which lapse under a prior indictment must be excluded. For this reason, the court properly overruled the motion for the discharge of the defendant.

II. It is earnestly insisted by counsel for the defendant that the evidence was insufficient to sustain a judgment of conviction, and that the court erred in refusing to direct the jury to acquit the defendant. Without encumbering this opinion with a detailed statement of all the testimony, it must suffice for the purpose of this objection to state that the evidence on behalf of the State tended to prove the following facts:

In the month of January, 1903, Z. B. Jennings was living at a small place called Esther, in St. Francois county, and was there engaged in the saloon business. The defendant, George F. Wigger, and his son, were running a saloon at the same place, about three or four hundred yards to the north of the Jennings place of business. On the morning of the 20th of January, 1903, between three and four o’clock, Jennings’ saloon and its contents were destroyed by fire. Incendiarism was suspected and a reward of $500 was offered by Jennings for information as to the guilty party. It was shown in evidence that the defendant had refused to sign Jennings’ saloon petition, and that there was some ill feeling on the part of the defendant toward Jennings before the saloon was burned. Clarence Wigger, a nephew of the defendant, about twenty-three years of age, was living with the defendant at the time of the burning of the saloon. He appeared as a witness against the defendant at the trial, and testified that the defendant offered him $50 if he would burn Jennings’ saloon; that he agreed to do it, and that defendant got the oil and rags for that purpose; that they together, on the night of the 20th of January, 1903, went to the Jennings saloon, and that while defendant stood guard he, Clarence Wigger, set fire to the saloon. Sam Wigger, a distant relative of the defendant, testified that the defendant offered him $100 to burn Jennings’ saloon about three or four months before the same was burned. Cy Lore, a witness for the State, testified that prior to the burning of the saloon, the defendant had offered him all the whiskey he could drink if he would burn Jennings out. •

The defendant was a witness in his own behalf, and denied ever having made an offer to Clarence Wigger, Sam Wigger, or any body else, as an. inducement to burn Jennings’ saloon, and further denied generally his guilt of the crime charged. The defendant further testified that in the summer of 1903, Clarence Wigger, having been arrested on a charge of robbery, and having escaped from the officers, came to the defendant’s place at night and requested defendant to go on his bond. That upon defendant’s refusal, Clarence Wigger then asked the defendant for $100 to leave the country; that defendant refused to give him the money.' There was evidence for the defendant tending to prove that after the burning of Jenning’s saloon, and in the same year, one Alex Robinett wanted Jennings to pay him part of the reward money in advance, to work up the evidence in the arson case, but Jennings refused to pay in advance, and Robinett then referred Jennings to Sam Doss. That thereafter Doss brought Clarence Wigger to the office of the prosecuting attorney of St. Francois county, and that Clarence Wigger then confessed to the burning of the Jennings saloon, and also confessed to his guilt of several robberies committed the same year after the burning of the Jennings property, and that thereupon Sam Doss received part of the reward offered by Jennings. It was shown that Clarence was jointly indicted with Robinett in Washington county for the crime of robbery, and that Clarence Wigger, Robinett, Doss and Freeman were then1 under indictment in Bollinger county on the charge of robbery. That at the time of the trial of the defendant, Clarence Wigger was then out on bail on the charge in the last-mentioned indictment, and that the prosecuting attorney of said St. Francois county was surety on his bond. There was evidence tending to prove that the defendant was worth from $20,000 to $25,000, and at the time of the trial there were pending against bim in the same court civil suits for damages arising out of the same facts involved in the criminal charge for which he was then on trial, aggregating between $15,000 and $20,000, and that counsel for the State in the criminal case were also counsel for Jennings, the plaintiff, in said civil suits.

It is urged that the State failed to prove by Clarence Wigger the name of the boy whom the witness Wigger stated the defendant hired to purchase the oil with which the building was burned, and failed to produce the boy, or account for his absence, and also failed to procure or account for the absence of the witness Sam Doss. It cannot be doubted, we think, that if the testimony of Clarence Wigger was believed by the jury, it was sufficient to establish that the defendant was the instigator of the crime of the burning of Jennings’ saloon building, and was present aiding, assisting and directing Clarence Wigger in perpetrating the crime. It follows then that Clarence Wigger, the witness, was an accomplice in the commission of that crime. If anything is settled in the law of this State, it is that the evidence of an accomplice who confesses his own guilty participation in a crime, is competent against his accomplice on trial for the same offense. And the credibility of such a witness is a matter for the consideration of the jury trying the case. [State v. Hill, 96 Mo. 357; State v. Williams, 149 Mo. 496; State v. Franke, 159 Mo. 535.] And it is also the accepted doctrine that the evidence of an accomplice, even though uncorroborated, is sufficient to sustain a conviction if believed by the jury. [State v. Williamson, 106 Mo. 162; State v. Black, 143 Mo. 166; State v. Tobie, 141 Mo. l. c. 561; State v. Marcks, 140 Mo. 656; State v. Harkins, 100 Mo. 666.] The failure of the State to produce the other witnesses to corroborate the testimony of the accomplice could have operated only against the State, and was a legitimate subject for discussion before the jury, but would not authorize this court, which has not the opportunity of seeing and hearing the witness testify, to interfere with the verdict of the jury which did see and hear the witness, and observe his manner of testifying, as well also the manner and testimony of the defendant and his witnesses. Accordingly, it must be ruled that the court did not err in submitting the evidence to the jury.

ITT. Error is predicated upon the action of the circuit court in permitting the prosecuting attorney to ask the witnesses for the defendant, Aubuchon, Ben-ham and Taylor, if they had not been charged with the crime of robbery, and if informations or indictments had not been preferred against them. Over the objections and exceptions of the defendant, the court permitted these questions and required the witnesses to answer the same. It is now insisted by the State in its brief that these questions were justified by the rulings of this court: In State v. Taylor, 118 Mo. 153, in which it was held that upon a cross-examination of the witness it was competent to ask him, After this thing occurred, were you not arrested for stealing billiard balls from Boulander’s saloon, and sent to jail?” and State v. Pratt, 121 Mo. l. c. 574, in which it was ruled that it was competent to ask the witness if he had been arrested and put in jail in Kansas City for stealing a pitch-fork, and State v. Martin, 124 Mo. 523, in which it was ruled that it was proper to ask a witness, on cross-examination, how many times he had been in the county jail on sentences for crime. As to all of these cases, and the case of State v. Miller, 100 Mo. 606, upon which they are all bottomed, the questions all implied a conviction for the offenses with which the witnesses were charged, and the objection went to the fact that the convictions were not shown by the record, but it will be observed that the question in this case goes simply to the fact that a charge either by indictment or information was pending against the witness and did not go to the fact of a conviction thereof, and the question arises, is it competent to discredit a witness by asking Mm whether he has been charged with a criminal offense which would affect his credibility, and conceding that he was not convicted thereof? One of the learned counsel for the State very candidly stated in the discussion of this objection before the court that he did not purpose to assert that it was the law of this State that a mere charge was any evidence of guilt. In State v. Howard, 102 Mo. l. c. 148 and 149, the witness for the defendant, on cross-examination by the prosecuting attorney, was asked if he had ever been arrested for stealing, to which he replied that he had never been convicted of stealing and had- never been convicted in his life. And then, over the objection of the defendant, he was asked if he had been arrested for stealing. In passing upon the admissibility of these questions, this court, through Judge Black, said: “A conviction may be put in evidence for the purpose of discrediting a witness, but the mere fact that he has been arrested is inadmissible for any such purpose. The evidence should have been excluded.” But in that case, as the evidence showed that the defendant had been arrested for minor offenses, and that he was never convicted, it was held that the error was a harmless one. Under our system of criminal procedure, nothing is more common than for the court to instruct the jury that the indictment or information against the defendant is a mere formal charge, and is no evidence of the guilt of the defendant of the charge therein contained, and no juror should permit himself to be in an way biased or prejudiced on account of the filing of the information against him, and so the court instructed in this case. This being so, how can it be logically or in good reason said that the mere filing of an information or indictment against a. party, upon which no conviction has been had, ought to be admitted as affecting the credibility of such witness? Section 4680, Revised Statutes' 1899, provides that “any person who has been convicted of a criminal offense is a competent witness, but such conviction may be proved to affect his credibility by the record or by his cross-examination.” It will be observed that this section permits proof of a conviction to affect the witness’s credibility, and not a mere charge of criminal offense, and by implication at least excludes the latter as any evidence affecting the credibility of the witness. We are of the opinion that the question in this case, which referred to an entirely distinct offense and was limited to the mere fact that a criminal charge was pending against the witness, was improper and should have been excluded by the circuit court.

IV. This brings us to the next assignment of error, to-wit, the impropriety and prejudicial character of the remarks of the prosecuting attorney in his closing argument to the jury as to certain statements made to the prosecuting attorney by the State’s witness, Clarence Wigger. The bill of exceptions recites that in his closing address to the jury, the prosecuting attorney stated to the jury as follows: “I will repeat that the confession made by Clarence Wigger to me in my office was in the closing days of July, 1903, near the end— July, has 31 days in it, and it showed to me that that confession made to me in that office not only involved this defendant on the charge for which he is now being tried, but involved Alex Robinett in the charge of robbery up there, ’ ’ to which counsel for the defendant objected. The prosecuting attorney continued: And upon that charge as made upon Alex Robinett the testimony of the witnesses in this case that was sworn on the stand here shows that Alex Robinett in the Washington County Circuit Court entered a plea of guilty there and is now in the Missouri penitentiary, as the testimony shows as sworn to here.” Counsel for the defendant: “I think that is going beyond all reason as to the confession against Eobinett, as that has never been presented to this jury.” By the court: “I will see that he stays in the record.” Attorney for the defendant: “I object to that statement that Robinett was in his office.” By the court: “Make your objection.” Counsel for the defendant: “The objection is this: I think anybody can understand it. There is no testimony on trial in this case as to what was-said by Robinett in his office. We except.” By the court: “I will say this, I want the jury to notice, they know what the testimony was, they can hear the argument, and if that is not in the testimony they can — ’ ’ By counsel for the defendant: “We don’t know what the minds of this jury might be and we must save our objections.” By the court: “Yes, sir.” The prosecuting attorney continued: “He made a confession that involved Robinett in the circuit court of Washington county.” By counsel for the defendant: “We except to that.” By the prosecuting attorney: “In the circuit court in Washington county — Alex Robinett in the circuit court of Washington county entered a plea of guilty to that charge based on the confession of Clarence Wigger.” Counsel for the defendant: “We object to that.” By the court: “Note your exceptions.” By the prosecuting attorney: “And as stated by the witnesses on this stand that he is now serving a term in the penitentiary.” Counsel for the defendant: “We except to that.” By the prosecuting attorney: “Before he had been put on his trial it had to be known whether or not he was involved in that robbery.” By the court: “You are getting out of the record, Mr. Marbury. I do not want Mr. Marbury to get out of the record.” Mr. Mai'bury: “I propose to make my argument to this jury in accordance to the rules of this court and I don’t want to be interrupted.” “In the face of that if Clarence Wigger’s confession as to Alex Robinett followed, and in the same confession he confessed against this man [meaning and pointing to defendant] may it not be concluded that the confession against this man [pointing to defendant] is also true?” Counsel for defendant: “We object to any confession made by; Robinett and ask the court to rebuke him and if not we except.” Mr. Marbury: “Clarence Wigger stated to me that he wanted to make a clean breast and unload his conscience and state the truth concerning everything that he had been implicated in.” Counsel for the defendant: “We object to that and except.” Mr. Marbury: “He said if he had to go to the penitentiary he wanted to make a clean breast of everything and forever clear his conscience. ’ ’ Counsel for the defendant: “I desire to object to that for the reason that there is no testimony warranting such a statement in this case. Mr. Marbury did not testify and he cannot take advantage of his office now.” Mr. Marbury: “Mr. Wigger testified.” Counsel for the defendant: “Tour honor.’’ By the court: ‘ ‘ Sit down, I am getting tired of this.” Mr.-Marbury: “He said, £I did it, because if I got to go to the penitentiary I will go, but I want to forever quit my criminal business and lead the life of an honest man. ’ ’ ’ Counsel for defendant: “I desire to get our exceptions.” Mr. Mar-bury: “ Coming up to this confession, when he confessed to all this, he confessed against George P. Wigger, as the testimony shows. The man who got him to burn this building, and this -was his first offense, his uncle, started him out on his criminal career. ’ ’ Counsel for the defendant: “We object to that. There is no testimony in this case from Clarence Wigger or anyone else that his uncle started him out on his criminal career and there is no testimony showing anything of that kind. I except to that statement unless he is called down by the court.” By the court: “There is no evidence showing anything of that kind.” -

There can be no question as to the impropriety and highly prejudicial character of the remarks of the prosecuting attorney as to what Clarence Wigger, the accomplice, had confessed in his office concerning the guilt of the defendant. Neither the prosecuting attorney nor the witness Wigger had testified to any snch statements, and the defendant had had no opportunity to cross-examine either upon that question, nor to object to the competency of said statements made in the absence of the defendant, and the circuit court should have stopped the prosecuting attorney when he began to make the statements as to what Clarence Wigger had stated to him in his office, and have rebuked him for going outside of the record. It was entirely competent for the prosecuting attorney to have discussed the testimony of Clarence Wigger given before the jury in the presence of the court, but the fact that Wigger had testified against the defendant was no excuse for the prosecuting attorney to go outside of the record and detail matters which were not in evidence and which were clearly calculated to bolster up the evidence of Clarence Wigger. The defendant was entitled to a verdict by the jury based upon the evidence in the case under the instructions of the court. Counsel in no case have the right to make statements of evidence which may affect the verdict of the jury which are not supported by the testimony delivered under oath in the presence of the jury. This court has so often rebuked the conduct of the attorneys in this respect, both in civil and criminal cases, that it would seem that the trial courts would prevent such conduct, especially where the life or liberty of a citizen is at stake. [State v. Jackson, 95 Mo. 652; State v. Bobbst, 131 Mo. l. c. 338, 339; State v. Ulrich, 110 Mo. l. c. 365; State v. Furgerson, 152 Mo. l. c. 99.]

It is almost unnecessary to add that the mild rebuke of the judge in this case fell far short of curing this error.

V. There are other assignments of error, but as this case must be reversed and-remanded for the errors noted, they are such as can be readily avoided upon a new trial of the case. The instructions seem to submit the case fairly to the jury. For the errors indicated, the judgment is reversed and the cause remanded for a new trial.

Burgess, P. J., and Fox, J., concur.


source: Caselaw Access Project

author: BURGESS, P. J.

license: Public Domain

text:
    THE STATE v. GEBEY, Appellant.
    Division Two,
    May 22, 1906.
    LARCENY: From Person in Nighttime: Evidence. Evidence held sufficient to justify a conviction of larceny from the person in the nighttime.
    Appeal from St. Louis City Circuit Court.—Ho». Jos. E. Withrow, Judge.
    Affirmed.

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

On the 5th day of October, 1904, the circuit attorney of the city of St. Louis filed an information, duly verified, in the circuit court of said city charging the defendant and one Dennis Collins with larceny from the person of Franklin H. Seiss, in the nighttime, to-wit, the stealing of a pocket-hook and forty dollars in money, on October 2, 1904. Thereafter, on motion of defendant Gebey, a severance and separate trial was granted him, the trial resulting in his conviction by .a jury of the offense charged against him and the fixing of his punishment at imprisonment in the penitentiary for a term of five years. Defendant in due time thereafter filed motions for new trial and in arrest, which were overruled by the court, and he appealed.

The facts are about as follows: On October % 1904, Dr. Franklin H. Seiss and his wife had been for a ride on a steamboat, returning to the city of St. Louis about nine o’clock that evening. There was a large number of people on the boat, and they crowded each other on leaving it at the wharf. A gang plank was used to facilitate exit from the boat, and while on this plank Dr. Seiss lost his pocket-book. A detective discovered defendant and his co-indictee in the act of picking the pockets of two persons about that time, which fact he brought to the attention of two policemen who were standing near by, and they arrested defendant and his companion. The mate of the boat saw defendant, while parleying with the policeman, drop a pocket-book. This book was picked up near defendant, and it was recognized by Dr. Seiss as his property. It was opened, and two twenty-dollar bills and some business cards found therein. Only a short time before leaving the boat Dr. Seiss had occasion to open his pocket-book, and saw that the said money and cards were in the same,' after which he placed said pocketbook in his right-hand hip-pocket. There was some evidence to the effect that the defendant, at the time of his arrest, denied having taken the pocket-book.

Defendant offered no evidence, but at the close of the State’s case he asked an instruction in the nature of a demurrer to the evidence, which was refused, and he excepted.

The defendant is not represented in this court. The information is in approved form and properly verified. The only point raised by the motion for a new trial, worthy of consideration, is that which challenges the sufficiency of the evidence to support the verdict; but we think the evidence was amply sufficient. The ownership and the contents and value of the pocket-book were conclusively proven, as was also the recent possession thereof by defendant, as well as his attempt to get rid of the same. The unshaken testimony of Casper Pohl, the mate of the boat, was that he saw the defendant, while in the hands of the police officers, drop this particular pocket-book and that he, witness, picked it up and handed it to Dr. Seiss. While the defendant, at the time of his arrest, denied having committed the offense, he did not testify as a witness in his own behalf; nor did he offer any testimony in explanation of his conduct or as to how he came into the possession of the pocket-book.

The judgment is affirmed.

All concur.


author: FOX, J.

text:
    THE STATE v. McKEE et al., Appellants.
    Division Two,
    May 22, 1906.
    APPELLATE JURISDICTION: Misdemeanor: Destroying Property: Construction of Statute. Where, in a prosecution for a misdemeanor, no constitutional question is involved, hut the only question is as to the proper construction of a statute—in this case as to whether section 1261, Revised Statutes 1899, providing a penalty for the destruction of telephone property, applies to telephone lines owned by individuals— the appeal is to the proper Court of Appeals..
    Transferred from Kansas City Court of Appeals.
    Remanded to Kansas City Court or Appeals.

      G. H. STcinJcer for appellants.

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

This cause was transferred to this court by order of the Kansas City Court of Appeals, made at its October term, 1905, for the reason, as recited in the order, that this cause involves the construction of section 1261, Revised Statutes 1899, and that the Court of Appeals was without jurisdiction to hear and determine such cause.

This is a prosecution for a misdemeanor predicated upon the provisions of section 1261, Revised Statutes 1899, and was begun in the Polk County Circuit Court. The offense, omitting formal parts, was thus charged in the information of the prosecuting attorney:

“L. Cunningham, prosecuting attorney within and for the county of Polk, in the State of Missouri, informs the court under his official oath and upon the affidavit of Ben Lusk that Clark McKee and Jesse Allen, on the 20th day of January, 1904, at the said county of Polk, did then and there unlawfully and intentionally injure, molest and destroy the telephone line of the Farmers’ Bolivar and Van Telephone Company, an association and partnership composed of the following joint owners, to-wit: John Higginbotham, Mart Higginbotham, Wilson Higginbotham, Ben Lusk, Wm. May, John P. Thompson, Charles W. Edison, Ira Van Burns, Wm. Woodmansee, George Woodmansee and Frank Botts, owning and controlling a telephone line erected in this State running from Bolivar to Bums and Van in said Polk county, by then and there cutting the wire of said telephone line at a point on the Bolivar and Buffalo public road in section seven, township thirty-three and range twenty-two in said Polk county, Missouri, against the peace and dignity of the State.
“And L. Cunningham, prosecuting attorney within and for the county of Polk, in the State of Missouri, further informs the court under his official oath and upon the affidavit of Ben Lusk that Clark McKee and Jesse Allen on the 20th day of January, 1904, at the said county of Polk, did then and there unlawfully and intentionally injure, molest and destroy the tele.phone line of the Farmers’ Bolivar and Van Telephone Company, an association and partnership composed of the following joint owners, to-wit:. John Higginbotham, Mart Higginbotham, Wilson Higginbotham, Ben Lusk, Wm. May, John P. Thompson, Charles W. Edison, Ira Van Burns, Wm. Woodmansee, George Woodmansee and Frank Botts, owning and controlling a telephone line erected in this State running from Bolivar to Burns and to Van in said Polk county, by then and there cutting the wire of said telephone lin at a point on the Bolivar and Buffalo public road in section nine, township thirty-three and range twenty-two, in said Polk county, Missouri, against the peace and dignity of the State. ’ ’

There is no "necessity foi detailing the facts developed at the trial. It is sufficient to say that the testimony tended to establish the offense charged in the information.

The court instructed the jury and the cause was submitted and they returned a verdict of guilty of the misdemeanor as charged in the information, assessing the punishment of each defendant separately at a fine. From the judgment upon this verdict the defendants prosecuted their appeals to the Kansas City Court of Appeals and the cause was transferred from that court to the Supreme Court, as heretofore indicated, and the record is now before us for consideration.

OPINION.

At the very threshold of the consideration of the question disclosed by the record before us, we are confronted with the proposition involving the jurisdiction of this court. This is a prosecution for a misdemeanor, and, unless the record discloses that it falls within that class of cases involving the construction of the Constitution of this State, this court is without jurisdiction, and it properly should go to the Kansas City Court of Appeals for hearing and determination.

Learned counsel for both appellants and respondent, with commendable frankness, admit the contention in this case is not that section 1261, Revised Statutes 1899, is unconstitutional, but that when properly construed it has no application to telephone lines owned by individuals. In other words, there is no constitutional question presented, nor does it require a construction of the Constitution, but the vital question involved in this proceeding is whether or not telephone lines owned by individuals are embraced within the provisions of the section and the penalties prescribed applicable to persons for cutting or injuring such lines. The question presented in this case simply involves the construction of a section of the statute and not the construction of the Constitution of this State. The correctness of this conclusion is emphasized by the recitation in the order by the Court of Appeals of its reason for the.transfer of this cause to this court, which was that “this cause involved the construction of section 1261, Revised Statutes 1899.”

Under the Constitution and laws of this State the Court of Appeals possesses equal jurisdiction with this court in the construction of statutes, and in this case the Kansas City Court of Appeals has full power and jurisdiction to determine what class of persons or what character of telephone lines are embraced in section 1261, to which the penalties for cutting or destroying such lines may be applied for a violation of the provisions of the section.

With these views it follows that the order transferring this cause to this court was inadvertently made and the cause should be remanded to the Kansas City Court of Appeals for hearing and determination, and it is so ordered.

All concur.


author: GANTT,

text:
    THE STATE v. HOTTMAN, Appellant.
    Division Two,
    May 22, 1906.
    1. MURDER: Information: Several Weapons. It is competent for an information charging murder to allege that the murder was committed by the use of more than one weapon.
    2. -: -: Deadly Weapon: Unnecessary Charge. It is not necessary that an information for murder allege that the weapons with which the murder was committed were deadly weapons.
    3. JURORS: Challenge to Array: In Writing. At common law it was necessary that a challenge to the array be in writing, and this is the case also where the common-law rule has not been abrogated by statute.
    4. -: -: Publication of Defendant's Confession. After the panel had been selected and defendant had taken the time allowed him in which to make his peremptory challenges, his counsel moved orally to guash the panel, on the ground that since the panel had been selected defendant’s confession had been published in a newspaper in the city in which the trial was being held, and that the jurors had read the published confession and had formed an opinion. Thereupon the court of its own motion examined each member of the panel and having ascertained that most of the panel had not seen or read the article and that but four of the jurors had formed an opinion from reading it, he overruled the challenge to the array, but excused the four jurors, and drew fifteen other names from which to fill up the panel, and from these fifteen four others were selected to take the place of those excused. Eeld, that, aside from the fact that the challenge to the array should have been in writing, the trial court pursued the proper course, since the jurors who had not read the published confession were not disgualified merely because it had been published.
    5. EXCEPTIONS: Appeal. Matters of exception, in order to be reviewed in the appellate court, must be objected and excepted to at the time, and repeated in the motion for new trial.
    6. CONFESSIONS: Properly Admitted. Prima facie defendant’s confessions were admissible, and in the absence of any improper conduct on the part of the officers procuring them to induce defendant to make them by the flattery of hope or promise of immunity or reward, or the use of any threats, they were properly admitted in evidence.

      7. MURDER: First Degree: Evidence: Instructions. Evidence,including defendant’s confession, held sufficient to support the verdict finding defendant guilty of murder in the first degree; and the court by its instructions properly confined the jury to that offense.
    Appeal from Jackson Criminal Court.—How. Jno. W. Wofford, Judge.
    Affirmed.

      Herbert S. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for the State.
    (1) (a) It is not a valid objection to the information that it charges the assault to have been made and the wounds to have been inflicted by the use of more than one weapon. State v. Blan, 69'Mo. 319; State v. McDonald, 67 Mo. 13; State v. Thomas, 99 Mo. 235. (b) While the form of the averment sufficiently charges that each weapon was a deadly weapon, it was not necessary to allege that the weapons with which the assault was made and the wounds inflicted were deadly weapons. State v. McDonald, 94 Mo. 301; State v. Bowles, 146 Mo. 6; State v. Hyland, 144 Mo. 302. (2) The court did not err in overruling defendant’s motion to quash the entire panel.. State v. Collins, 86 Mo. 248; Eberhardt v. State, 47 Ga. 606. (3) The confession of defendaht was properly admitted in evidence. While made in the presence of an officer of the law, it was shown to have been free and voluntary, and no promises or threats whatever were made to induce him to make it. Kelley’s Crim. Law and Prac., pp. 180', 181; State v. Northway, 164 Mo. 513; State v. McClain, 137 Mo. 307; State v. Guy, 79 Mo. 430; State v. Rush, 95 Mo. 199; State v. Shackelford, 148 Mo. 493. (4) The court did not err in refusing defendant’s request to instruct the jury on the law of murder in the second degree. There was no evidence tending to prove the crime of murder in the second degree, and it is the duty of the court to submit to tbe jury only such grades of tbe offense charged as the evidence tends to prove. State v. Sneed, 91 Mo. 552; State v. Smith, 114 Mo. 406; State v. Robertson, 178 Mo. 496; State v. Henderson, 186 Mo. 473.
   GANTT,

This is an appeal from a judgment and sentence of the criminal court of Jackson county, at Kansas City, Missouri.

On the 25th of July, 1904, the prosecuting attorney of Jackson county filed in open court an information charging the defendant with the murder, in the first degree, of Clarence Myers at said county on the 11th day of May, 1904. The information is in the exact form of that set forth in full in the opinion in State v. Maggie Myers, handed down on this day (94 S.W. 242), save and except that in the information in this case Frank Hottman, the defendant, is charged with said murder, whereas in that case Maggie Myers is charged with the same. Upon an arraignment and plea of not guilty, the defendant was put upon his trial and convicted of murder in the first degree. Motions for a new trial and in arrest of judgment were duly filed, heard and overruled and sentence pronounced from which this appeal is prosecuted.

Inasmuch as the testimony in this cause is in all material respects the same as that detailed in the statement accompanying the opinion in State v. Myers for the same murder, it is deemed unnecessary to restate it here further than to reproduce the two confessions made by the defendant, the one at Walla Walla, Washington, at which place defendant was arrested, while living, there under the name of W. K. Ballard, after the homicide. The statement or confession at Walla Walla is in the words following:

“My name is Frank Hottman. I left Higginsville on the 5th or 6th of May, 1904, for Kansas City on noon train. Mrs. Myers met me at the depot. The deed was planned at Higginsville on Mrs. Myers ’ last visit there. Met her several times during my stay in Kansas City. Mrs. Myers let me in at the kitchen door on the morning of the 11th of May, 1904. We proceeded to the room where Myers was sleeping. He was, lying in bed when we came in and got np. Myers said, ‘Here yon are again, ’ and I hit him with the bntt of a billiard one which I had brought from home with me. He clinched me and we fell on the bed. I was on top of him. He struggled free and I grabbed him and held him, while Mrs. Myers stabbed him with a razor cutting his throat first. He grew weak and I let him down on the floor and she bent over him and stabbed him again and again. We agreed to shield one another. I remained there about ten minutes and she let me out at the back door. She said after the matter was quieted she would come to me. She gave me about ten dollars in money, saying it was all the money she had. I left that morning for St. Joe, after going back to my room and sleeping for a while. On train between Kansas City and St. Joe I took off my shirt which showed blood on the sleeves and threw it away. My hat I left in the room where the struggle had taken place, and I took Myers’ hat, which I have with me now. I stopped at St. Joe three or four days, from there I went home to Higginsville, arriving there on the last train at night. Stopped home three days, left there on the 19th or 20th, went then to Omaha, crossing the river’ at Glasgow, taking Wabash train, changing near Omaha. Bought ticket from Omaha to Walla Walla. Arrived at Walla Walla on Tuesday, May 24th. Stopped here several weeks, went to work on Eureka Plats and remained there until 20th of June. I make this statement because it is the truth, without fear or reward. Frank Hottman.”
“Witness to signature:
“D. H. Oldham,
“Chas. S. Painter.”

After defendant was apprehended and brought back to this State, he voluntarily made another confession, which is as follows:

“Kansas City, Mo., July 12, 1904.
“My name is George Frederick Franklin Hottman. I am usually known by the name of Frank. I was twenty years old the 22nd day of last March. I was bom in Saline county, Missouri. I have been living in Higginsville, Mo., about fifteen years. I have known Maggie Myers, whose maiden name was Maggie Brock, about ten years. She was married once before to a man by the name of Payne. I think his first name was Rob. I never worked here in Kansas City. Sometime last November I came up to Kansas City and stayed here until sometime in December. While I was here I stayed part of the time at Mr. Brock’s, the father of Maggie Myers; and a part of the time I stayed at the Myers’ house. I didn’t get any work here and then I went back to Higginsville. I came up to Kansas City again, I think it was in February, 1904, and stayed at the Myers’ house a couple of days or so, then I went back to Higginsville. Sometime in April, 1904,1 think it was, Maggie Myers came down to Higginsville and visited with my folks. She and I went buggy riding and were around together while she was there. We were pretty fond of each other while she was visiting us at Higgins-ville. The day we were out buggy riding together we talked about running away together. We had talked about it before. I wanted her to run away with me and she said she would not do that while she was married to Clarence (that’s her husband’s name); she then said, ‘We can get rid of him, we can kill him.’ I said, ‘No, I don’t want to do that,’ and she said, ‘That’s the only way to do,’ she said, ‘It won’t do to run away because Clarence will follow us; ’ we talked it over for sometime and talked how we had better do it; Maggie said, ‘ The best way is to hit him with a club,’ and I said, ‘I can get a billiard cue which will be just the thing. ’ Then we planned that she should come on to Kansas City and I should follow in a few days and do the job. We planned that we should Mil him at night while he was at home asleep. She came on home and I came as far as Odessa on the train with her. Then I went back to Higginsville. My grandfather had a billiard cue which he used as a cane. I cut a part of it off and took the heavy end of it. Maggie had been home about a week when I came to Kansas City and brought the heavy end of the billiard cue with me. I got here in the evening. Maggie Myers met me at the Union depot. We stayed there together two or three hours, I guess. We talked about killing Clarence. I told her I had the billiard cue. She said we could kill him any time we could catch him at home. She said she would let me know some night when he would be at home. We arranged to meet at the Union depot the next morning. She met me the next morning as we had agreed. We went over in Kansas City, Kansas, to a rooming house on Minnesota avenue; we stayed there together two or three hours, I guess. I came part of the way back with her. We arranged to meet each other near the post office the next day.-She met me and we walked around town. We talked some about getting rid of Clarence. She said she expected him to be home every night, and said we could get rid of him any time now. We planned to do it that night. She told me to come that night to the back door a little after one o’clock and she would be there to let me in. I “had a room on Union avenue opposite the depot. I registered as Ed Hartman. I left there about eight o ’clock in the evening and before leaving told the clerk to have me called at 4:30 in the morning. I put the piece of billiard cue in my coat pocket. I walked around town. Didn’t meet any one I knew. I had a bottle of whiskey in my pocket and took a drink or two out of it while I was walMng around town. I started out to the Myers place and on the way out looked at my watch. It was a quarter to one o ’clock. I came up' to the Myers house the back way through the alley to the back door. Maggie had the door open and was there waiting for me. She said, ‘Keep quiet’ in a whisper, ‘He’s awake.’ We stood there a little while. She said, ‘Wait awhile,’ and went into the room where Clarence was and shut the door. I stood inside the kitchen for some little time and then Maggie came out into the kitchen and said, ‘He is asleep.’ And then we started in the room where Clarence was. He was lying in bed and just as I got into where he was he raised up and said, ‘Here you are again,’ and I hit him along the head with the billiard cue which I had brought with me. He clinched me and we fell on the bed. The bed broke down. I was on top of him and holding his hands. We struggled to the floor standing and out in to the other room where the stove was. He struck me and knocked me down. I got up and clinched him and we scuffled and while we were struggling I got his hands down to his side like and while we were in this position Maggie Myers came up with a razor in her hands and commenced to cut him about the throat and head. He commenced to weaken and I let him down on the floor with his face down and Maggie stabbed him a number of times in the back. He was on the floor near the sideboard. While we were struggling Clarence hollered, ‘Murder’, ‘Let me alone, ’ ‘Help. ’ He didn’t holler very loud, he could not. Clarence hollered, ‘ Honey, help me. ’ When Maggie cut Clarence the blood fell on my hands and cuff. After she had stabbed him a number of times Clarence quit hollering. Then Maggie brought a pan of water into the room where Clarence lay and I washed my hands. In the struggle with Clarence one of my cuffs came off. I took the other one off while I was washing my hands and threw it on the floor. I took the cuff buttons out of my cuffs and left the cuffs there. The buttons are the same ones I gave him at Walla Walla. When I went into the house I had my hat on and in the struggle it was knocked off. It had blood on it and I left it there and wore away one of Clarence’s hats. The hat I wore away I gave to Mr. Oldham at Walla Walla. Maggie gave me the hat of Clarence which I wore away. In the struggle I dropped the piece of billiard cue and left it there. In the struggle I got my hands bruised and slightly cut. I wasn’t disguised in any way when I went into the house. Did not have any mask on and did not have my face blackened. After I got my hands washed she said, ‘ You must not say anything about this,’ and I said, ‘I won’t,’ and she said she would tell that niggers had come in and killed Clarence. We had an understanding before Clarence was killed that she would say that niggers had broke into the house and killed Clarence. She gave me some change, I think about ten dollars. She said she would see me some time soon. I told her I would go up to St. J oseph. I left the house and went right straight to my room on Union avenue. The night man went up-stairs with me. I had on an old suit of clothes which I took off and put in my grip satchel. I laid down on the bed. Think I had been in the room about an hour when I was called. I got up and put on a suit of clothes which I had there and took a train for St. Joseph. I stayed in St. Joseph three or four days. I do not remember just how long. I stopped at a place at the edge of town. It’s a two story building and the man who runs the place is a barber and has a shop down street. It was not very far from the depot. On the way to St. Joseph I took the clothes I had worn when we killed Myers out of the grip and threw them away. There was a pair of pants, a coat, a vest and shirt. All the things had blood on them. I read about the killing in the papers at St. J oseph. I went from St. J oseph to Higginsville coming through Kansas City. I stopped at Odessa and saw my uncle, Albert Wright. I told him about the killing and that I was in trouble. The next day my uncle, Albert Wright, came down to Higginsville. I told my folks about the trouble I was in. My father gave me about $60 and after I had been home about two or three days, somewheres along there, I left and went to Glasgow, Mo., and crossed the river there. Took a train and went to Council Bluffs and from there to Omaha and then to Walla Walla. At- Omaha I bought a ticket to Walla Walla and paid $35 for it. At Walla Walla I went to the postmaster and hired a box and gave the name of W. K. Ballard. I got mail out there from my uncle Albert Wright and letters fropa my mother. Before I left I told my uncle that I would go under the name of W. K. Ballard. I never have had epilepsy, never received á blow on the head and never had a sunstroke. I make this statement, consisting of fifteen pages, to George P. Whitsett and John B. Hayes, assistants to the prosecuting attorney, voluntarily and without any threats or promise or threats having been made to me. I make this statement of my own free will and because I want to tell the truth about the matter.
“Frank: Hottman.”
“Witnesses:
“George P. Whitsett,
“John B. Hayes, Jr.,
“Ed. A. Hickman.”

This confession was corroborated by many witnesses as to his movements in Kansas City before and on the night after the murder, and as to his return to Higginsville and departure from there for St. Joseph and by witnesses who resided in St. Joseph. No evidence was offered on behalf of defendant. The instructions were as follows:

“1. The information in this case was filed by the prosecuting attorney on the 25th day of July, 1904, and charges the defendant with murder in the first degree.
“Murder in the first degree is the willful, felonious, deliberate and premeditated killing of a human being with malice aforethought. As used in these instructions the word willful means intentional, not accidental. Felonious means wickedly and against the admonition of the law, unlawfully. Deliberately means a cool state of blood, it does not mean brooded over, considered, reflected upon for a week, a day or an hour, but it means an intent to kill executed by a party not under the influence of violent passion suddenly aroused by some just or lawful cause of provocation to passion, but in the furtherance of a formed design to gratify a feeling of revenge or to accomplish some other unlawful act. And the passion here referred to is that only which is produced by what the law recognizes as a just or lawful cause of provocation to passion. Premeditated means thought of before hand for any length of time, no matter how short the time. Malice, as used here, does not mean mere spite or ill-will as generally understood, but signifies an unlawful state of the mind, and such state of the mind as one is in who intentionally'does an unlawful act. Aforethought means thought of beforehand.
“2. The court instructs the jury that in this case there is no just and lawful cause of provocation to passion.
“3. The court instructs the jury that if you find and believe from the evidence that at the county of Jackson and State of Missouri, at any time before the 25th of July, 1904, defendant, Frank Hottman, either alone or acting in concert with another or others willfully, deliberately, premeditatedly and of his malice aforethought did with a certain club or bludgeon, a certain razor and a certain pair of scissors and that the same or either of them was a dangerous and deadly weapon, beat, bruise, cut and stab one Clarence Myers, inflicting upon him mortal wounds, from which mortal wounds the said Clarence Myers, within one year thereafter at the county of Jackson and the State of Missouri, died, then you will find the defendant guilty of murder in the first degree and so say in your verdict. In that event you have nothing to do with the punishment; that is fixed by law.
“4. If verbal or written statements of the defendant have been proven in this case, you may take them into consideration, with all the other facts and circumstances proven. What the proof may show you, if anything, that the defendant has said against himself, is presumed to be true, because against himself; but any thing you may believe from the evidence the defendant said in his own behalf, you are not obliged to believe, but you may treat the same as true or false, just as you believe it true or false, when considered with a view to all the other facts and circumstances in the case.
“5. The court instructs the jury that when two or more persons act together in the commission of an unlawful act or purpose, what either does in carrying out such unlawful act or purpose is, in law, the act of each of said persons.
“6. Flight raises the presumption of guilt, and, if the jury believe and find from the evidence that, after the commission of the offense alleged in the information, the defendant fled from the State, and tried to avoid arrest and trial for said offense, then the jury may take this fact into consideration in determining his guilt or innocence.
“7. The court instructs the jury that the law presumes the innocence and not the guilt of the defendant, and this presumption of innocence attends the defendant throughout the trial, and at the end entitles the defendant to an acquittal, unless the evidence in the case, when taken as a whole, satisfies you of defendant’s guilt beyond a reasonable doubt, as defined in these instructions.
“8. The court instructs the jury that before they can convict the defendant they must be satisfied of his guilt beyond a reasonable doubt; such doubt, to authorize an acquittal upon reasonable doubt, must be a substantial doubt of the defendant’s guilt, with a view to all the evidence in the case, and not a mere possibility of the defendant’s innocence.
‘ ‘ 9. The jury are the sole judges of the credibility of the witnesses and of the weight and value to be given to their testimony. In determining as to the credit you will give to the witness, and the weight and value you will attach to a witness’s testimony, you should take into consideration the conduct and appearance of the witness upon the stand, the interest of the witness, if any, in the result of the trial, the motives actuating the witness in testifying, and witness’s relation to or feelings for or against the defendant, or the alleged injured party, the probability or improbability of the witness’s statements, the opportunity the witness had to observe and to be informed as to matters respecting which such witness gives testimony, and the inclination of the witness to speak truthfully or otherwise as to matters within the knowledge of such witness. All these matters being taken into account, with all the other facts and circumstances given in evidence, it is your province to give to each witness such credit and the testimony of each witness such value and weight- as you deem proper.”

The motion for new trial contained the usual grounds that the court erred in admitting and rejecting evidence; that the verdict was against the law and the evidence; that the court erred in instructing the jury, and specially that “the court erred in refusing to quash the entire panel of the jury in view of the fact that the confession used in evidence was printed in the Kansas City Times and had been read'by the jury on the morning of January 11, 1905,” and in permitting one of the jurors to be separated from the regular panel and in its interrogation of the entire panel and to each juror. The motion in arrest is practically the same as the motion for new trial except that it also challenges the information as insufficient. The defendant is not represented by counsel in this court, either orally or by brief, but the charge is so grave aud the consequences so direful, that we have as in duty bound carefully examined the record and will consider the various points made in the motion for new trial and in arrest of judgment.

I. The information was sufficient both in form and substance. It was competent to charge the murder to have been committed by the use of more than one weapon. [State v. Blan, 69 Mo. l. c. 319; State v. McDonald, 67 Mo. 13; State v. Thomas, 99 Mo. 235; State v. Myers, 94 S. W. 242.]

The information charges the weapons to have been deadly weapons but it was not necessary to do so. [State v. McDaniel, 94 Mo. 301; State v. Bowles, 146 Mo. 6.]

II. As to the ground of the motion for new trial that the court erred in not quashing the entire panel of forty-seven jurors, the record exhibits these facts: On the 9th of January, 1905, a panel of forty-seven jurors was selected to try this cause, none of whom were challenged by defendant. The defendant took the twenty-four hours allowed by statute to make his peremptory challenges and accordingly further proceedings were postponed until January 11,1905. When the court convened on the 11th, the jurors appeared, and the defendant by his counsel made the following statement and challenge orally: “Counsel for defendant objects to the entire panel of this jury, the forty-seven to try this case of the State against Prank Hottman; it has been given out to the newspapers, newspaper reporters, and on the 11th day of January, the day set for trial, there appeared in the newspaper of Kansas City, a full confession purported to be that of Prank Hottman; that each and every juror had a fixed opinion during the time he was asked and he has since read the confession that is purported to be that of Prank Hottman.”

“The Court: The motion is to quash the panel?
“Mr. Urfer: Yes, sir, that is my motion.
“The Court: What do you propose to do now?
“Mr. Urfer: I think we ought to have a different panel, that haven’t got an opinion.
“The Court: What do you offer in support of your motion?
‘ ‘ Mr. Urfer: I can offer the affidavits from a number of people that this jury is biased, I can support it with my own affidavit.
‘ ‘ The Court: Go find out what you want to do.
“Mr. Urfer: I offer as an exhibit the Kansas City Times publication of January 11, 1905, what purports to be a confession of Prank Hottman.
“Mr. Kimbrell: The State objects to the paper as incompetent and irrelevant to sustain the charges made by counsel for defendant.”

At this point the court of its own motion examined each member of the panel of forty-seven juror's as to whether or not he had read the purported confession of the defendant in the Kansas City Times of that morning. Most of the panel had not seen or read the article, but jurors Kelley, Jones, Bryant and Souter had, and said that they had formed an opinion from reading it. Thereupon the court overruled the challenge to the array as a whole, but sustained it as to the four jurors named and discharged them from the panel of forty-seven and proceeded to draw fifteen other names from which to fill up the panel and from the fifteen, four other jurors were selected to take the place of those discharged. And no challenge to any of them was made for cause.

The motion of defendant’s counsel to set aside the whole panel was a challenge to the array and was made ore terms. In State v. Taylor, 134 Mo. l. c. 143, it was said: “It is the established rule at common law that a challenge to the array must be in writting, and this is the case also where the common law has not been abrogated by statute. [1 Chit. Crim. Law, 546; 2 Tidd’s Prac., 851; People v. McKay, 18 Johns. 218; State v. Clark, 121 Mo. 513; Ryder v. People, 38 Mich. 269.] But independently of the form of the challenge, the defendant did not sustain his motion to discharge the whole panel. Unquestionably he had the right to reexamine the jurors on the morning of the 11th of January, 1905, for the purpose of ascertaining whether anything had occurred to disqualify them since their selection on the 9th of January. This he did not do, but contented himself with offering in evidence the copy of the Times published that morning, containing a purported confession of the defendant, and made no request to examine the individual jurors as to whether they had read or seen the same. Obviously, those who had been tried and found indifferent between the State and defendant, and who had not read the purported confession, were not rendered disqualified merely because the newspaper contained the alleged confession. The learned criminal court, however, proceeded of its own motion to ascertain how far the panel had been affected by the publication and ascertained that only four of the jury had read the purported confession and had been affected by it, and then and there excluded them from the panel and proceeded under the statute to supply their places by other disinterested jurors, to whom no objection was taken and saved. It seems to us the court took the only wise and just course in the premises. In State v. Collins, 86 Mo. l. c. 248, this court said: “It is insisted that the action of the court was erroneous in procuring a panel of forty qualified jurors on the sixth of March, when the cause could not be tried until the tenth of March, inasmuch as the jurors who might have been qualified on the 6th, might have become disqualified between the sixth and the tenth of March. We are of opinion that this point is not well taken, inasmuch as when said jurors appeared on the tenth, defendant or his counsel, if they had so desired, could have examined them to ascertain the fact whether they, or any of them, had become disqualified by anything done or said between the said two dates. ’ ’

In Eberhart v. State, 47 Ga. 598, the defendant filed a motion to quash the panel sworn to try the defendant upon the ground that the name of one of the jurors was not in the jury box and that other jurors had been put upon him whose names were not in the box. Passing upon that question, the’ Supreme Court said: “A motion to set aside the panel is, in substance, a challenge to the array, and must be on some ground that taints the whole. The facts claimed to be true here have only reference to some of the jurors, and we are unable to understand how it can be contended they affect the array. If the men on the panel who come within the category stated are taken off the list, there would be no objection to it. The facts no more make a ground off challenge to the panel than would the fact that there was on it a juryman disqualified from interest, bias or kinship.” We think the court properly refused to quash the whole panel in the circumstances and pursued the only wise and proper course and its action furnishes no ground for reversal. The court and the parties were placed in the awkward situation by no fault of theirs, but by the pernicious and unwarrantable action of the proprietors of the newspaper. The publication of a part of the material testimony against the defendant in advance of its admission by the court was well calculated to impede and interfere with the administration of justice and to delay the trial at great cost and inconvenience to the State, the court and the parties. It is at least questionable whether it was not a contempt of the court. It is intolerable that the courts should be embarrassed and that the rights of parties in grave judicial matters should be affected by publications like this. Every citizen has a right to have his rights adjudicated and passed upon by the courts and juries unaffected by outside interference in any manner whatever. Fortunately in this case only four of the panel were disqualified, and the court properly excluded them from the jury, but it can readily be seen that the whole panel might have been likewise disqualified and a most serious and grave prosecution delayed at great cost and inconvenience, by the ill-advised publication.

III. The tenth ground of the motion for new trial assailed the form and substance of the questions propounded by the court to the panel as a whole and to the individual members thereof, on their voir dire examination. We discover no objection in the record to the court’s manner of interrogating the panel or any juror. It is now axiomatic that if a party desires this court to review any matter of exception on the trial, he must make his objection and save his exceptions at the time it occurs and then repeat it in his motion for new trial. As this was not done in this case, there is nothing before us for review on this point.

IV. In the absence of any brief or argument pointing out any supposed error of the criminal court in admitting testimony on behalf of the State, we have been compelled to examine the record for ourselves. By far the most important pieces of evidence introduced in the case were the two confessions or statements made by the defendant at Walla Walla, Washington, and at the Midland hotel in Kansas City, respectively. To the admission of these we find counsel for defendant objected, after a preliminary examination of Mr. Old-ham, who testified he was present when the one made at Walla Walla was written, and of Captain Whitsett, who wrote down the one made at the Midland hotel. Both of these witnesses testified fully as to all the circumstances attending the making of these statements. They stated that the defendant not only was not offered any clemency but no threats were made to induce him to make the said statements. On the contrary, he seemed anxious to tell his connection with the murder. The trial court pursued the approved practice of inquiring fully into the circumstances under which the confessions were made in order to ascertain whether or not they were voluntary. No attempt was made to contradict the statements made by the witnesses for the State'that they were voluntary. No improper influences appear to have been used by the officers to obtain the same. Prima facie the confessions were admissible, and in the absence of any improper conduct upon the part of the officers to induce the same by the flattery of hope or promise of immunity or the use of any threats, we must hold the confessions were properly admitted. We have been unable to find' any other evidence to which any serious objection was made, or that was tenable, and consequently it must he held that this ground for new trial was not sustained. [State v. Jones, 171 Mo. 401; State v. Hopkirk, 84 Mo. 284; State v. Stebbins, 188 Mo. 396.]

V. The court’s instructions properly confined the jury to the issue of whether the defendant was guilty of murder in the first degree or not guilty of that offense. There was no evidence justifying any instruction for murder in the second degree. The instructions were such as have often met the approval of this court and left nothing to he desired. There was no evidence of any provocation either just or lawful, and it was proper for the court to so tell the jury. Finally, the evidence aliunde fully corroborated.the confession of the defendant and pointed unerringly to the defendant as one of the guilty participants in the murder of Clarence Myers, who was asleep in his home when the defendant and the wife of Clarence Myers, in pursuance of a guilty conspiracy, assaulted their sleeping victim. The record discloses not only murder, hut a sickening disclosure of marital infidelity by a wife to an unsuspecting and generous husband, which would he almost incredible were the evidence not so conclusive and unshaken.

After a careful review of the whole record, we are prepared to say the defendant had a fair and impartial trial and that the verdict of the jury was and is amply sustained hy the testimony.

It follows that the judgment and sentence of the criminal court of Jackson county must be and is affirmed, and the sentence which the law pronounces is directed to be executed.

Burgess, P. J., and Fox, J., concur.


text:
    THE STATE v. PLATNER, Appellant.
    Division Two,
    May 22, 1906.
    ASSAULT WITH INTENT TO RAPE: Sufficiency of Evidence. Evidence held sufficient to justify a conviction of assault with intent to rape.
    Appeal from Jasper Circuit Court.—Hon. Howard Gray, Judge.
    Affirmed.

      Frank L. Forlow for appellant.
    Defendant did .not intend to force compliance with his desire at all hazards regardless of prosecutrix’s resistance, and therefore he is not guilty of the crime charged. State v. White, 52 Mo. App. 285; State v. Hayden, 141 Mo. 311; State v. Riseling, 186 Mo. 521; State v. Scholl, 130' Mo. 396; State v. Owsley, 102 Mo. 678.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    The evidence was sufficient to justify a conviction of defendant of the crime charged. State v. Whitsett, 111 Mo. 202; State v. Alcorn, 137 Mo. 121; State v. Urie, 101 Iowa 412; State v. Page, 127 N. C. 512; Dunn v. State, 56 Ga. 401; State v. Beard (Idaho), 57 Pac. 867; State v. McOune, 16 Utah 170; Harlan v. People,-76 Pac. 793.
   BURGESS, P. J.

On the 30th day of June, 1905, the defendant was convicted in the circuit court of Jasper county and his punishment fixed at four years imprisonment in the penitentiary, under an information filed by the prosecuting attorney of said county charging him with having committed an assault upon one Minnie L. Stotts, with intent to ravish and carnally know her feloniously and against her will. In due time defendant filed motions for new trial and in arrest, which were overruled. He appeals.

The facts are about as follows: Minnie L. Stotts resided at Afton in the Indian Territory. In the early part of June, 1905, she left Afton to visit a brother in Dade County, Missouri, and stopped at Webb City to spend the night with friends. She arrived at said city on a train which was due there at 8:45 that evening. By previous arrangement, one Fred Wallner, a man whom she had met before and to whom she was engaged to be married, met her at the station upon the arrival of the train. They walked to Carterville, near by, where for some reason unexplained they were arrested by a policeman and locked up in the city prison. After being kept in confinement for about an hour they were' released, and they started to walk east to Main street, when defendant and another young man named Hardy followed them. The young men walked around in front of the prosecutrix, and defendant remarked to her that she was keeping late hours. He also wanted to know where she was going and said that that policeman was a friend of his. Wallner replied that it was nobody’s business where they were going, and prosecutrix said she was going to the little town of Prosperity. Defendant then said she was going with him, and he and Hardy took hold of prosecutrix by the arms and began to drag her along. When Wallner objected, defendant said, “Don’t you say a word, or we will both jump on you and beat you to death.” At that Wallner started to run, and Hardy threw a rock and struck Wallner on the back of the head, and one of them (the record is obscure as to which) drew a knife. Wallner called for help and ran back towards the city prison. When prosecutrix screamed, defendant and Hardy struck her in the face, and both of them took hold of her and dragged her down the street towards a vacant lot. Prosecutrix resisted all she could and tried to jerk loose from them, but was overpowered. Defendant and Hardy pushed prosecutrix backwards and threw her to the ground, and held her by the arms. Defendant then said, “Now, sweetheart, you are going to let me have it.” Prosecutrix refused and continued to scream; and defendant took out his handkerchief and wiped the blood from her nose and mouth. As she was still calling for help, defendant put his arm over her mouth and told her to be still or he would kill her. Defendant pulled up the clothes of prosecutrix, and again cautioned her to be still; at the same time he unbuttoned his pants. When they heard a pistol shot defendant threw his coat over prosecutrix to conceal her white waist; when a second shot was heard, defendant and Hardy ran off. In the meantime, Wallner had gone back to the policeman, made complaint of the assault, and he and the officer hurried to the place where Wallner had just left prosecutrix. When they reached that place prosecutrix was not there, but they heard her screams still further down the street. When they got to her defendant and Hardy had gone, and prosecutrix was on the ground and her nose and mouth were bleeding. The proprietor of a restaurant testified to the fact that Wallner and prosecutrix passed his place of business after they were released from prison, and that defendant and Hardy got up, left the table, talked to each other and followed after prosecutrix. The constable testified to seeing defendant sitting on a bench in front of a saloon that night after the alleged assault. That defendant jumped up and started to run when police officer Brown came out of the saloon with Hardy under arrest. That some twenty-five people gathered around, and the officer told Wallner that he had recognized one of his men, and to try and see if he could find the other one. Defendant then tried to get behind the constable, but Wallner recognized him; defendant was pale and excited.

The evidence for the defendant tended to show that he was a fireman and worked in a mine at Osage. That, on the night in question, defendant and Hardy were in a restaurant eating lunch when prosecutrix and Wallner passed. That they came out, followed in the same direction, but on the other side of the street from prosecutrix, but accidentally caught up with her. That Hardy and Wallner got into a difficulty, used profane language, and Hardy threw rocks at Wallner. While this was going on, defendant coaxed prosecutrix to go on with him down the street. That Hardy got away from Wallner and came running towards prosecutrix and called to her. When prosecutrix asked what he wanted, Hardy tried to get her to go with him; but prosecutrix said she was going with defendant. That Hardy then hit prosecutrix in the mouth, and defendant drove him away. After going on down the street some distance further, defendant and prosecutrix sat down, on the ground, and defendant solicited her to have sexual intercourse with him, and she asked him if he had any money. That they soon heard the officer coming down the street, and prosecutrix told defendant to throw his coat over her white waist, and he did so. That, when the first pistol shot was fired, defendant told her to be right still; but when the second shot was heard prosecutrix advised him to run; and defendant did run. That prosecutrix never screamed, never tried to get away, and that defendant never tried to force her and never used any threatening language. Defendant admitted that he had never seen prosecutrix before that night, and did not know anything about her, except that she and Wallner had been arrested. Hardy did not testify either for the State or for the defense.

The court of its own motion gave the following instructions, to the giving of which instructions the defendant at the time duly excepted:

‘ ‘ The court instructs the jury that if they find and believe from the evidence beyond a reasonable doubt that the defendant wrongfully, unlawfully and feloniously, at the county of Jasper and State of Missouri, on or about the 9th day of June, 1905, did make an assault on the witness, Minnie L. Stotts, by forcibly taking hold of her or striking her for the purpose and with the felonious intent to ravish her, the said Minnie L. Stotts, the jury should find him guilty of assault with intent to rape, and assess his punishment at imprisonment in the penitentiary for a term not less than two years or more than five years, or by imprisonment in the county jail not less than six months, or by a fine not less than one hundred dollars and imprisonment in the county jail not less than three months, or by a fine not less than one hundred dollars.
‘ The court instructs the jury that if they find from the evidence that the defendant, at the county of Jasper and State of Missouri, on or about the 9th day of June, 1905, did wrongfully and, willfully make an assault on the witness, Minnie L. Stotts, but without the intent to ravish her, then the jury should find him guilty of common assault, and assess his punishment at a fine not exceeding one hundred dollars, or by imprisonment in the county jail, not exceeding six months, or by both such fine and imprisonment.
• “The court instructs the jury that an assault is any unlawful physical force against a person, partly or fully put in motion, creating a reasonable apprehension of immediate physical injury to 'such person, and the word ‘feloniously’ means wickedly, wrongfully and against the admonition of the law. To constitute the crime of assault with intent to rape, the jury must find that the defendant intended to use such force as would at all hazards overcome the resistance of said witness, Minnie L. Stotts, and compel her hy force to submit to sexual intercourse with him.
“The court instructs the jury that all persons are equally guilty who act together with a common intent in the commission of a crime, and a crime so committed by two or more persons jointly is the act of all and of each one so acting; therefore, you are instructed that if you find from the evidence that the defendant, either hy himself did feloniously and unlawfully make an assault on the witness, Minnie L. Stotts, with intent to ravish her, or that he was then and there present, feloniously aiding and abetting one William Hardy in such an assault, then he was equally guilty.
“The jury are the sole judges of the credibility of the witnesses and of the weight and value to he given to their testimony. In determining the credit you will give to a witness, and the weight and value you will attach to a witness’s testimony, you should take into consideration the conduct and appearance of the witness upon the stand, the interest, if any, in the result of the trial, the motives actuating the witness in testifying, the witness’s relation to or feeling for or against the defendant, or the alleged injured party, the probability or improbability of the witness’s statement, the opportunity the witness had to observe and to he informed as to the matters respecting which such witness gives testimony, and the inclination of the witness to speak truthfully or otherwise as to matters within knowledge of such witness. All these matters being taken into account, with all the other facts and circumstances given in evidence, it is your province to give to each witness such credit and the testimony of eack witness such value and weight as you deem proper, and if upon a consideration of all the evidence you conclude that any witness has sworn willfully false as to any material matter involved in the trial, you may reject or treat as untrue the whole or any part of such witness’s testimony. ’ ’

The court, at the request of the defendant, gave the following instructions:

‘ ‘ The court instructs the jury that the information in this case is of itself a mere accusation or charge against the defendant and is not of itself any evidence of the defendant’s guilt; and no juror ought in this case to permit himself to he, to any extent, influenced against the defendant because or on account of the information in the case.
“The defendant is presumed to be innocent until proven guilty by the evidence beyond a reasonable doubt. The term ‘reasonable doubt,’ as used in these instructions, means a substantial doubt arising from the evidence in the case, and not a mere possibility of the innocence of the defendant. If, from all the evidence, the jury have a reasonable doubt of the guilt of the defendant, it is the duty of the jury to give the defendant the benefit of such doubt and acquit.
“The court instructs the jury that unless they find from the evidence beyond a reasonable doubt that the defendant made an assault upon the witness, Minnie L. Stotts, with the felonious intent to rape her, you should find him not guilty of assault with intent to rape.
“The court instructs the jury that the defendant is a competent witness in his own behalf, and you must take his testimony into account and give it such weight in connection with all the other evidence before you as you deem proper. But in determining the credit you will give his testimony, you may take into consideration the fact that he is the defendant on trial testifying in his own behalf.
“The court instructs the jury that it is not an offense under the laws of this State to solicit without force a woman to have sexual intercourse, whatever may be said as to the moral view of such an act.”

The first point presented on this appeal is as to the sufficiency of the information, which is claimed to be insufficient upon the ground that it is nowhere stated therein that it is made upon the oath of the prosecuting attorney, nor upon his official oath.. The information is in the language of the statute, and duly verified by the prosecuting attorney in accordance therewith. It is sufficient.

It is claimed by defendant that the verdict of the jury was not authorized by the evidence, and that at most he was guilty only of common assault. Upon the contrary, we think the evidence shows defendant’s guilt beyond any question. He and his companion, Hardy, were alike guilty. They acted in concert in making the assault, and one is as guilty as the other. As the prosecutrix and her escort were walking along the street, the defendant and Hardy passed by and stepped in front of them, and then, after a few words, took hold of her by the arms and dragged her along, with them. Wallner called for help, when defendant and Hardy threatened to beat him to death. At this he took fright and fled. The prosecutrix then screamed for help, when Hardy struck her in the face, forcing the blood from her nose and mouth, and they dragged her down the street to a vacant lot where they pushed her backwards to the ground and held her by the arms. Defendant then pulled up her clothing, and was proceeding to accomplish his nefarious purpose when, fortunately for the helpless woman, he was frightened away by pistol shots. These facts, if believed by the jury, and their verdict shows they were, more than justified such verdict.

Our conclusion is that the judgment should be affirmed. It is so ordered.

All concur.