author: KENNISH, J.

text:
    THE STATE v. AARON B. DONALDSON, Appellant.
    Division Two,
    June 1, 1912.
    1. INDICTMENT: Conclusion. An indictment, concluding with the constitutional requirement of “against the peace and dignity of the State,” though those words are attached to the last separate clause negativing defendant’s false representations, is in proper form.
    2 -; False Representation. An indictment alleging that the false pretenses defendant made were that a certain corporation owned in fee simple 900 acres of land described, that such lands were free and clear of incumbrances and indebtedness, that said company was solvent and not indebted to any one, and that the shares of its capital stock were then and there worth their par value, and then alleging,, with sufficient definiteness, that the prosecuting witness, believing said pretenses to be true and being deceived thereby, was induced to purchase certain shares of the stock and to execute and deliver to defendant in -payment therefor his negotiable promissory note for $8000 and that by means of said fraudulent representations the defendant did obtain from said witness the said note, with the intent him then and there to cheat and defraud, and then negativing separately each false representation, meets every requirement of good pleading, and is not defective in failing to state the contract with more particularity, either as to the sale by defendant to the witness of the shares of stock referred to, or in that it does not allege that the stock so sold was not of the value of $8000, or that by delivery of the note to defendant the witness sustained injury.
    8. FALSE PRETENSE: Evidence: Attendant Circumstances: Attempt to Marry Victim’s Daughter. In the prosecution of defendant for selling stock of an insolvent corporation which he represented to be solvent, and for obtaining the purchaser’s money in exchange for said stock by false pretense,, testimony that defendant, before he ever applied to said purchaser to buy, became acquainted with the purchaser’s widowed daughter, visited her at his house, represented himself to them to be married but suing for a divorce which would soon be granted, and entered into a pretended marriage engagement with her, and was received in their home as a member of the family and continued his visits and attentions until he had induced her father to buy the stocks, and thereafter began to suggest obstacles in the way of the marriage, is competent — as tending to show it was defendant’s scheme to obtain the confidence of the father through the prospective marriage with the daughter. Where devious methods of approach are resorted to in order to allay suspicion and gain the confidence of an intended victim, a wide range in the reception of testimony is allowed,
    4.-: -: Representations to Other Intended Victims. Testimony tending to prove that defendant, charged with false pretenses in selling mining stock, made similar representations to other persons, in selling or attempting to sell stock in the same company after the date of the crime charged, was properly admitted for the purpose of proving the element of criminal intent.
    5.-: -: Sufficiency: Domestic Note. Where the testimony is conflicting on the point of whether the note defendant obtained by false pretense was delivered in this State or Illinois, and there is substantial testimony that it was delivered in this State, the question becomes one for the jury to settle.
    6.-: -: -: Investigation. It is not necessary to a conviction that the false pretenses should be the sole inducement to the victim for parting with his property; it is enough if they have a controlling influence, although the victim made an incomplete investigation. Whether the victim relied upon the false representations as the main inducement, is the question for the jury.
    7.-: -: -: Means of Discovering Falsity. It is not for the defendant to say that his victim might, by the exercise of vigilance, in the use of the means at hand, have discovered the falsity of his representations and thus have escaped being defrauded.

      8. -: Evidence That Victim was Actually Defrauded. Testimony tending to prove that defendant, in pursuance of his false representations as to the solvency of the mining company, obtained from his victim his note for $8000 in payment of stock, that the note was of that value and that it was actually paid, was sufficient to show that his victim was defrauded and injured.
    9. REMARKS OF PROSECUTING ATTORNEY: Failure of Defendant to Deny Other Testimony: Substantial Rights. The prosecuting attorney has no right, in his argument to the jury, to comment upon the fact that defendant, while on the witness stand, failed to deny certain facts testified to by other witnesses. But unless such error is prejudicial to the substantial rights of defendant on the merits, the Supreme Court is forbidden by the Statute of Jeofails to reverse the judgment upon that ground. The court permitted testimony that defendant, charged with false pretense in selling mining stocks to his victim, had wooed the victim’s widowed daughter, and engaged to marry her, had represented he was a married man but that his wife was a woman of disreputable character and a divorce suit was pending and would soon be decided in his favor, and when it was he and the widow would be married; ' and this testimony is held to be competent. The prosecuting attorney in his argument to the.jury, commented upon the fact that defendant, while on the witness stand,, had not denied having told said widow his wife was a disreputable woman, and had not denied that he had made false representations in the same town, in endeavoring to sell stock to others. Held, that the comment could not have prejudicially affected defendant’s rights and would not justify a reversal — since the court instructed the jury that the representations to others could be considered only to prove criminal intent, and what defendant said about his wife being disreputable was of no significance as proving his guilt.
    Appeal from St. Louis City Circuit Court. — Hon. Eugene McQuillin, Judge.
    Affirmed.

      T. J. Roiue, Thos. J. Rowe, Jr., and Henry Rowe for appellant.
    (1) The indictment fails to state sufficient facts to constitute a violation of section 4565, Revised Statutes 1909. (2) The verdict is against the overwhelming weight of the evidence. (3) The court erred in permitting Ora B. Ridgeley to testify that she was engaged to marry the defendant when he obtained a divorce from his wife; and that he told her she was a disreputable person. (4) Instructions offered by defendant should have been given. The court did not properly instruct the jury; and did not instruct them on all questions of law necessary for their information. (5) James Shaner, assistant circuit attorney, in his closing address to the jury was permitted, notwithstanding defendant’s objections, to make improper remarks to the jury.

      Elliott W: Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) The indictment is drawn under section 4765, Revised Statutes 19091. It sufficiently describes the offense and identifies the name of the victim. State v. McOhesney, 90 Mo. 120. The test is whether or not appellant could plead in bar the judgment rendered against him, be it either a conviction or acquittal. State v. Woodward, 156 Mo. 147. All the elements necessary to charge the crime are laid in this indictment, and the constitutional provision is complied with. Constitution, art. 2, sec. 22; State v. Vorbaek, 66 Mo. 168. It sets forth the exact nature of the false representations made by appellant minutely and in detail, identifies the victim, and in every way describes the offense. State v. Cameron,’ 117 Mo. 376. (2) Evidence of other similar crimes is admissible to show intent to defraud. State v. Saroney, 95 Mo. 352; State v. Turley, 142 Mo. 403; State v. Eilson, 143 Mo. 334; State v. Keyes, 196 Mo. 147; State v. Martin, 226 Mo. 538. The court gave the jury a cautionary instruction upon this evidence which has often been approved by this court. Evidence of similar false pretenses is particularlyrelevant when it appears that the fraudulent act for which the accused is on trial does not stand alone, but is a part of the scheme, not merely to defraud one person, bnt to swindle the community at large. Under-hill on Crim. Ev. (2 Ed.), sec. 4438; People v. Whelan, 154 Cal. 472; State v. Briggs, 74 Kans. 382; People v. Gray, 67 Caí. 275 ; People v. Neyce, 86 Cal. 393; People v. McGlade, 139 Cal. 70; 7 Ency. Evidence, 627; 12 Cyc. 408, 411; 1 Wigmore on Evidence, sec. 320; 2 Wharton’s Crim. Law, sec. 2128. (3) The fact that the victim, Mr. Downs, made the flying trip to the mine does not make the pretense absurd or irrational, nor does it show that Mr. Downs had at the very time the means of detecting the fraud. 2 Wharton, Crim. Law, secs. 1187, 1188; 2 Bish. Crim. Law, secs. 433, 434; Commonwealth v. People, 14 111. 348. It was long ago settled in England that the pretense need not be such as Would impose upon a man of ordinary caution, and the American courts are harmonious on the proposition. State v. Williams, 12 Mo. App. 415; State v. Montgomery, 56 Iowa, 195; Smith v. People, 47 N. Y. 303; People v. Pray, 1 Mich. N. P. 69; Colbert v. State, 1 Tex. App. 314; Johnson v. State, 36 Ark. 242. It is impossible to estimate false pretense other than by its effect. 2 Bish. Crim. Law (8 Ed.), sec. 436; May v. State, 17 Tex. App. 213; State v. De Lay, 93 Mo. 98; State v. Evers, 49 Mo. 542. The note described in the indictment was obtained by appellant by the means denounced in the statute. State v. Willard, 109' Mo. 247; Watson v. People, 87 JST. Y. 566; Clark & Marsh, on Crimes, pp. 831-833; State v. Janson, 80 Mo. 97; State v. Yandenburg, 159 Mo. 230; State v. Hubbard, 170 Mo. 346; State v. Keyes, 196 Mo. 136. (4) Courts are-loath to reversing judgments on account of improper remarks of attorneys — especially as in this case where the proof of guilt is clear. In such case a verdict of guilty would likely have been returned, regardless of the improper remarks. State v. Hess, 240 Mo. 147; State v. Dietz, 235 Mo. 341; State v. Harvey, 214 Mo. 411; State v. Church, 199 Mo. 638; State v. Hibler, 149 Mo. 484; State v. Summar, 143 Mo. 220; State v. Duseuberry, 112 Mo. 294; R. S. 1909, see. 5115.
   KENNISH, J.

At the February term, 1911, of the circuit court of the city of St. Louis, appellant was tried upon an indictment charging him with having violated section 4765, Revised Statutes 1909, by obtaining from James E. Downs, by means of false and fraudulent representations, the promissory note of said Downs for the sum of $8000. The jury returned a verdict of guilty, assessed appellant’s punishment at imprisonment in the penitentiary for a term of three years, and from the judgment entered upon the verdict he appealed to this court.

The indictment, omitting caption and signature, was as follows:

‘ ‘ The grand jurors of the State of Missouri, within and for the body of the city of St. Louis, now here in court, duly impaneled, sworn and charged, upon their oath present, that Aaron B. Donaldson, on or about the twenty-second day of November, one thousand nine hundred and nine, at the city of St. Louis aforesaid, feloniously, designedly, knowingly and fraudulently, with the intent then and there to cheat and defraud one James H. Downs, did falsely represent, pretend and state to the said James H. Downs that a certain corporation known and named the Mississippi Valley Iron and Furnace Company, and incorporated under the laws of the State of Missouri, owned in fee simple nine hundred acres of mineral lands, located, situated and being in Butler and Wayne counties in said State of Missouri; that the properties of the said the Mississippi Valley Iron and Furnace Company were then and there free and clear of indebtedness and incumbrance; and that the said the Mississippi Valley Iron and Furnace Company then and there was in good solvent condition and had no indebtedness and was not indebted to any person or persons, and that the shares of the capital stock of the said the Mississippi Valley Iron and Furnace Company were then and there of the value of one hundred dollars per share and worth their par value; and the said James H. Downs believing said false pretenses and representations so made by the said Aaron B. Donaldson as aforesaid, to be true, and being deceived thereby, was induced by reasons thereof, to then and there purchase from the said Aaron B. Donaldson, three hundred and seventy shares of the capital stock of the said the Mississippi Valley Iron and Furnace Company, and as part of the purchase price therefor to then and there deliver and transfer to the said Aaron B. Donaldson, a certain valuable thing, to-wit, a certain negotiable promissory note, executed by the said James H. Downs and dated at the city of St. Louis in the State of Missouri, November twenty-second, one thousand nine hundred and nine, promising to pay to the order of said A. B. Donaldson, three months after date, the sum of eight thousand dollars with interest from date at the rate of six per cent per annum, and of tie value of eight thousand dollars, and the said James H. Downs then and there did deliver and transfer the said valuable thing, to-wit, said negotiable promissory note described as aforesaid for the sum of eight thousand dollars, to him the said Aaron B. Donaldson, as and for part of the purchase price of said three hundred and seventy shares of stock described as aforesaid and the said Aaron B. Donaldson then and there feloniously, wilfully, designedly, knowingly and fraudulently, in the manner aforesaid, and by means of the fraudulent representations aforesaid, did obtain of and from the said James IT. Downs the said valuable thing, to-wit, the said negotiable promissory note for the sum of eight thousand dollars, executed by the said James H. Downs as aforesaid, and of the value of eight thousand dollars, all the property of the said James H. Downs, with, the intent him, the said James H. Downs, then and there to cheat and defraud of the same.

“Whereas in truth and in fact the said corporation, the Mississippi Yalley Iran and Furnace Company, did not then and there own in fee simple nine hundred acres of mineral lands located, situated and being in Butler and Wayne counties in said State of Missouri, as he, the said Aaron B. Donaldson, then and there well knew; and,

“Whereas, in truth and in fact, the properties of the said the Mississippi Yalley Iron and Furnace Company were not then and there free and clear of indebtedness and incumbrances, as he, the said Aaron B. Donaldson, then and there well knew; and,

“Whereas, in truth and in fact, the said the Mississippi Yalley Iron and Furnace Company was not then and there in good solvent condition and then and there had a large indebtedness and was largely indebted to divers persons, to-wit, the National Iron Mining Company, a corporation, and other persons to these grand jurors unknown, as he, the said Aaron B. Donaldson then and there well knew; and,

“Whereas, ™- truth and in fact, the said shares of the said capital stock of the said the Mississippi Yalley Iron and Furnace Company were not then and there of the value of one hundred dollars per share, nor worth their par value, as he, the said Aaron B. Donaldson, then and there well knew; against the peace and dignity of the State. ’ ’

As the record contains the testimony of many witnesses and also much documentary evidence, we shall state only such facts as are necessary to an understanding of the questions of law raised during the progress of the trial and now before ns for review.

The evidence for the State tended to show the following facts:

At the time the offense is alleged Jo have been committed the defendant was engaged in the brokerage business in the city of St. Louis and resided in that city with his family, which consisted of his wife and five children. James H. Downs, from whom the note in question was .obtained, was a wealthy retired farmer, seventy-two'years old, and lived at Assumption, Illinois. His daughter, Mrs. Ora B. Ridgeley,' had been granted a divorce from her husband and made her home with her parents. In April, 1909, the defendant was introduced to Mrs. Ridgeley in St. Louis. Soon after this introduction he called upon her several times at her father’s home in Assumption and became acquainted with the father. In August, 1909, he made a proposal of marriage to Mrs. Ridgeley and the proposal was accepted. It was agreed that the wedding should take place some time in December. Mr. Downs was informed of the engagement. Both he and Mrs. Ridgeley knew the defendant was a married man. He represented to them, however, that he and his wife had been separated for two years; that he had a divorce suit pending and would obtain a. decree of divorce before December. He told Mrs. Ridgeley he had left his -wife because she was a disreputable woman. He was then living with his wife, and there was no divorce suit pending. After the pretended marriage engagement he was a frequent visitor at the Downs home, where he was received by the members of the family as Mrs. Ridgeley’s accepted suitor.

Having thus gained the confidence of Downs, the defendant interested him in mining stocks which he had for sale, and in October, 19091, sold him some shares of stock in the Williamsville Iron Mountain Ore Company and the Black River Iron Ore Company, receiving therefor $35,000. Shortly after this sale was made the defendant arranged for the reorganization of a corporation known as the Mississippi Valley Iron and Furnace Company (hereinafter referred to as the Mississippi Valley Company), whereby he acquired control of that company and of the sale of its stock. One reason for his alliance with the latter company was that he desired to pacify dissatisfied investors in the two former companies, by having the Mississippi Valley Company take over the assets of the other companies and issue to the stockholders in those companies two shares of its capital stock for each share of stock they held in either of the other companies. This arrangement was consented to by the owners of the Mississippi Valley Company. The assets of the Mississippi Valley Company consisted of 249% acres of land owned in fee simple, 2753 acres on which it had leases and mining rights and some worn-out machinery and equipment. It had purchased all of its property from the National Iron Mining Company and was indebted to that company, as part of the purchase price, in the sum of $26,000. The defendant knew these facts when he acquired control of the Mississippi Valley Company. In a written proposition made to the company, dated October 27, 1909, and signed by the defendant, stating the terms upon which he would take charge of the company and the sale of its stock, there was this statement: “It is also understood that the company owes for its land $26,000.”

After Downs was informed of the marriage engagement, and after the. defendant had secured control of the Mississippi Valley Company, the defendant stated to Downs that if the latter would surrender his stock in the Williamsville Iron Mountain Ore Company and the Black River Iron Ore Company and pay $18,000 in addition, he would issue -and deliver to Downs therefor one’ thousand sha,res of the capital stock of the Mississippi Valley Company of the par value of $100 per share. He represented the purchase of stock in the latter company to be a fine investment; that its stock was worth its par value; that it owned nine hundred acres of land in fee simple; that it was free of indebtedness and its property was clear of incumbrance. .. At the invitation of the defendant, Downs and Mrs. Ridgeley accompanied Mm to Keener, Missouri, to see the property of the company. On this trip the defendant repeated to Downs the representations concerning the company and its property. The party returned to St. Louis and while there Downs accepted the offer made by the defendant and executed to him his promissory note for $8000, being the note mentioned in the indictment. The note is dated “St. Louis, Missouri, November 22, 1909.” A receipt was given to Downs by the defendant, dated at the same time and place as the note, reciting that the defendant had received from Downs $18,000-, for which Downs was to receive, as soon as a certain pooling agreement was completed, one thousand shares of the capital stock of the Mississippi Valley Company, of the par value of $100 per -share. Downs and Mrs. Ridgeley returned to Assumption and a day or two later Downs sent to the defendant a check for $10,000 in payment of the balance of the purchase price of the stock. The note and check were both paid, and the stock was after-wards issued to Downs as agreed.

The property of the Mississippi Valley Company was not valuable as mining property. It was worked on a small scale after Downs purchased the stock, but at a loss on every car of ore handled. Only $3500 of the $26,000 due as purchase money'was ever paid. During the summer of 1910 the defendant made a deal with the company whereby all of the property of the company was transferred to him in consideration for services rendered, $2800 which he claimed he had advanced to the company, and an agreement that he would procure the release of the company from all liability for the $22,500 still due as part of the purchase money for which the deed of trust was given. After this transfer was made, “a beautiful suite of offices” constituted the sole assets of the company.

During the period covering his-negotiations and dealings with Downs, the defendant, in selling and attempting to sell stock of the Mississippi Valley Company to people living in the vicinity of Assumption, made the same representations about the company that be was charged in the indictment with having made to Downs. On one occasion, while in Assumption for the purpose of selling the stock, he had a conversation with a witness named Burton, who was interested in the company, in which he said: ‘‘Burton, you will have to lie to sell this stock.”

The evidence for the defendant tended to show the following facts:

The deed of trust for $26,000' was not executed until after the Downs note for $8000' was executed and delivered. The Mississippi Valley Company was not in fact indebted to the National Iron Mining Company, but as the claim was made that it did owe that company $26,000 on account of the purchase price of property, the board of directors concluded that it would be best to recognize the claim for that sum as valid and execute a deed of trust to secure it, which was done. The property of the company was valuable mining property and worth in the neighborhood of $500,000'.

"Witnesses who had known the defendant for many years, as a minister of the Gospel, a mine operator and a broker, testified that his reputation for honesty, integrity, truth and veracity was good.

The defendant testified that the note in question was executed and delivered to him in Assumption, Illinois. He denied that he ever made any representations to Downs concerning the value of the stock; that he ever represented to him that the company owned nine hundred acres of land in fee simple, or that the company was free of indebtedness or that its property was clear of incumbrance.

In his argument to the jury the assistant prosecuting attorney commented upon the fact that the defendant'while on the witness stand had not denied having told Mrs. Bidgeley his wife was a disreputable woman, and had not denied that he made false representations to certain witnesses from Assumption, in endeavoring to sell stock to them. Objections to these comments were overruled by the court, to which rulings the defendant excepted.

I. Appellant demurred to the indictment, and he now assigns as error the action of the court in overruling the demurrer.

In setting out the alleged offense the indictment denies the truth of each false pretense charged to have been made and immediately following the last pretense so negatived, separated only by a semicolon, concludes with the formal language, “Against the peace and dignity of the State.” It is contended that the indictment is defective in that it does not conclude as required by the Constitution. The criticism, as we understand it, is that the concluding clause is limited to the one averment immediately preceding it, instead of referring to and modifying the entire charge. This criticism is without foundation. The Constitution requires that “all indictments shall conclude ‘against the peace and dignity of the State.’ ” The indictment in this case does so conclude and exactly in accordance with the recognized forms and precedents in such cases. [Kelley’s Crim. Law & Prac., sec. 692; Bishop’s Forms (2 Ed.), sec. 418 et seq.]

The indictment is also assailed on the ground that it fails to allege with particularity the contract and agreement between the defendant and Downs, (1) as to the sale by the defendant to Downs of the 370 shares of stock referred to; (2) in that it does not allege that the stock so sold was not of the value of $8000', nor that by reason of the sale Downs was cheated and defrauded, nor that by the delivery of the note to the defendant Downs sustained injury.

A reading of the indictment, set out at length in the statement of facts herein, will show, that four false pretenses are charged to have been made: (1) that the Mississippi Valley Company owned in fee simple 900 acres of lands therein described; (2) that snch lands were free and clear of indebtedness and incumbrance; (3) that said company was solvent and was not indebted to any person; (4) that the shares of the capital stock of the said company were then and there worth their par value. The indictment then, with sufficient definiteness, alleges that Downs, believing the said pretenses to be true and being deceived thereby, was induced to purchase certain shares of the capital stock of the said company and to execute and deliver to the defendant in payment therefor his negotiable promissory note of the value stated and that by means of said fraudulent representations the defendant did obtain from Downs the said note with the intent him, the said Downs, then and there to cheat and defraud. The indictment then properly negatives the truth of each false representation alleged and concludes as heretofore stated. After an examination of the indictment, we are satisfied it meets every requirement of good pleading and that the demurrer was properly overruled. [State v. Martin, 226 Mo. 538.]

II. Error is next assigned to the action of the court in admitting testimony offered by the State, over the defendant’s objections. A number of adverse rulings are complained of under this head. We shall dispose of them under two groups. First, those relating to testimony concerning the statements, letters and conduct of the defendant in pretending to be desirous of marrying the widowed daughter of the prosecuting witness, but which did not directly tend to prove the charge; and, second, the rulings complained of in admitting testimony of representations made by the defendant to other persons, in selling or attempting to sell stock in the same company, after the date of the alleged offense.

It was shown that the daughter of the prosecuting witness, a widow forty-two years of age, was making her home with her father; that the defendant became acquainted with her, represented himself as wealthy, became a suitor and promised to marry her as soon as he secured a divorce from his wife, which he said would be within a few months. The father knew of the contemplated marriage of the defendant and his daughter, and on the defendant’s frequent visits treated him as a member of the family. These conditions existed before and during the time the alleged false representations were being made, and we think the testimony was clearly admissible. It is evident that it was a part of the defendant’s scheme to obtain-the confidence of the aged father through his prospective marriage of the daughter, and the testimony of Downs leaves no doubt that he was the more susceptible to the defendant’s influence by reason of that fact. As soon as the defendant secured the old man’s note and money he began to suggest obstacles to an early marriage and his visits soon ceased.

In cases of this character, where such devious methods of approach are resorted to in order to allay suspicion and gain the confidence of the intended victim, a wide range in the reception of testimony must of necessity be allowed, in order that the case may be intelligently presented to the jury. In 5 Ency. of Evidence, 744, the rule is thus stated: “All the circumstances occurring at the time of, and surrounding, the transaction in question, are matters proper to be shown for the consideration of the jury. . ... Great latitude has been allowed in the reception of evidence bearing upon this issue. . . . The prosecution is not restricted to the exact transaction as it took place between the prosecutor and the accused, but may-give evidence of acts or statements showing the steps preliminary thereto when tending to show the intent. ’ ’

The testimony tending to prove that defendant made similar representations in selling and attempting to sell stock in the same company to other persons, after the date of the crime charged, was properly admitted for the purpose of proving the element of criminal intent. [State v. Roberts, 201 Mo. 702; State v. Wilson, 143 Mo. 334; State v. Balch, 136 Mo. 103; State v. Sarony, 95 Mo. 349; State v. Bayne, 88 Mo. 604; State v. Myers, 82 Mo. 558; 19 Cyc. 443.] In State v. Roberts, supra, l. c. 726; discussing this subject, the court said: “This evidence was unquestionably admissible for the purpose of showing a common fraudulent purpose and intent, to cheat and defraud. . . . It may be observed, moreover, that the transaction between the said parties and Mrs. Coleman need not have occurred prior to the Tolly transaction, in order to render evidence thereof admissible, if it occurred on the same day or about the same time and tended to prove a common intent upon the part of said Eoberts, Turner and Gribbs to cheat and defraud.” We hold that the testimony complained of was competent and that the court did not err in overruling the defendant’s objections thereto.

III. It is urged that the court erred in failing to give an instruction at the close of the testimony, directing a verdict of acquittal. This contention is based upon five grounds, namely:' (1) That it was shown by the testimony that the note charged to have been obtained from Downs by false pretenses was not delivered to the defendant in the State of Missouri; (2) that Downs did not rely upon any representations made to him by the defendant, but investigated for himself; (3) that Downs*had the means at hand of detecting whether the alleged representations were' true or false; (4) that the representation as to the value of the stock sold to Downs was absurd and not calculated to deceive; (5) that there was no evidence that Downs was defrauded by tbe sale of tbe 370 shares of stock to him.

The instruction was properly refused and (answering appellant’s contentions in the order stated) for the following reasons:

(1) The testimony was conflicting as to whether the note was delivered to the defendant in this State. Downs and Ms daughter both testified that it was executed and delivered in the Terminal Hotel in the city of St. Louis, while the defendant testified that it was delivered in the State of Illinois. - The question therefore was one of fact for the jury and not a question of law for the court.

(2) Although Downs, at the defendant’s suggestion, did personally view the real property of the Mississippi Yalley Company, such' investigation was incomplete and evidently gave him but little information as to the matters concerning which the false pretenses were charged, and he testified that he relied upon the representations made to him by the defendant. That testimony was sufficient to take the case to the jury upon such issue. “It is not necessary to conviction that the false pretenses should be the sole inducement to giving the credit or parting with the property; it is enough if they have a controlling influence, although other minor considerations may concur.” [Kelley’s Crim. Law & Prac., sec. 694.] In Underhill on Crim. Evidence (2 Ed.), sec. 440, it is said: “Whether the representations were calculated to deceive, whether the owner relied upon them as the main inducement, and whether they were known to be false, by the accused, are questions for the jury.”

(3) It is not for the defendant to say that the person defrauded might, by the exercise of vigilance, have discovered the falsity of the pretenses and thus have escaped being defrauded. In the case of State v. Starr, 244 Mo. 161, Ferriss, P. J., speaking for this court and discussing the subject in hand, said: “One who deliberately imposes upon another should not be heard to say that his victim was over-credulous or negligent in believing what he was told. The law measures the responsibility of a defendant in such cases not by what would impose upon a man of acumen, or upon one of ordinary ability, but by what was calculated to impose upon the victim under all the circumstances of the case.”

(4) The contention that the representations as to the value of the stock were so absurd and irrational in their character that the court should have decided as a question of law that they were not calculated to deceive, we think not well' founded, and is sufficiently answered by the authorities cited in the last two preceding paragraphs. '

(5) There was testimony tending to prove that the defendant, under the false pretenses charged, obtained from Downs the note described, also the value of the note and its payment by Downs. That was all that was necessary for the State to prove to show that Downs was defrauded. [19 Cyc. 411, and authorities cited.]

IY. It is finally urged that the assistant prosecuting attorney was guilty of such improper conduct in his argument to the jury as to constitute reversible error and entitled the defendant to a retrial of the case. The remarks, in part, are referred to in the statement of facts. Others are complained of which we have considered and found unobjectionable, and they will not be discussed.

That counsel for the State has no warrant of law to comment upon the failure of a defendant as a witness to testify upon any fact in issue or to deny any fact testified to by another witness, has been the settled law of this State since the decision in the case of State v. Graves, 95 Mo. 510. The statute upon the subject, section 5243, Revised Statutes 1909, does not in express terms deny the right of the State to comment in argument upon the failure of a defendant, when a witness, to testify as to any fact in evidence against him; hut this court has construed the statute and under the rule adopted the prosecuting attorney has no more right to comment upon the failure of the defendant to so testify than to comment upon his failure to avail himself of his right to go upon the stand as a witness in his own behalf. [State v. Ferrell, 233 Mo. 452, and cases cited.] From these views it follows that the court erred in overruling the defendant’s objections to the argument based upon the failure of the defendant to deny certain facts.

The question remains, was such error prejudicial to the substantial rights of the defendant on the merits? If not, then this court is forbidden by the Statute of Jeofails to reverse the judgment and grant a, new trial upon that ground.

The testimony as to what the defendant said in his pretended wooing oí Mrs. Ridgeley, we have held competent. It was admissible to explain the relations of the parties and to show criminal intent. The testimony as to what he said in that connection against his wife’s character was of little significance as tending to prove guilt. If he had denied it when on the stand, or had admitted it, what influence would that fact have had upon the minds of the jury? The most that can be said of the prosecutor’s reference to the defendant’s failure to deny is that such testimony, not being denied, was probably true. There was considerable other testimony, intermingled with the business on hand, concerning the defendant’s social relations with Mrs. Ridgeley and her father, including letters written by the defendant. He did not refer to any part of that testimony when on the stand (except that in his testimony in chief he admitted writing to Mrs. Ridgeley v love letter introduced in evidence by the State and beginning, “My Dear Girl”), although it showed him to be a married man with a family at the time, and as all of that stood undenied we think the comment and argument under review could not have prejudicially affected his rights and would not justify a reversal of the judgment.

What has been said in the foregoing paragraph is largely applicable to the other remarks complained of, namely, that the defendant had not denied the testimony of certain witnesses for the State as to similar representations made to them in selling and attempting to sell stock in the same company. That testimony was admitted to prove intent, and by an instruction the jury were told they should not consider it for any other purpose. In returning a verdict of guilty, the jury must have found that the false pretenses charged were made by the defendant and that by means thereof he obtained the note from Downs. These facts being found, the further fact as to the intent with which the false pretenses were made was so clearly proven that we are satisfied the reference to the defendant’s failure to deny the testimony as to representations made in other sales, though error, was harmless and not such as to warrant a new trial of this case.

After a careful examination of this long record, our conclusion is that the defendant was given a fair trial and that prejudicial error was not committed against him. The judgment is accordingly affirmed.

Brown, P. J., and Perriss, J., concur.


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    MADISON HINES et al. v. WILLIAM H. HINES et al., Appellants.
    Division Two,
    June 1, 1912.
    1. CONTEST OF FOREIGN WILLS: ■ Constitutional Statute: Full Faith and Credit. Section 569, Revised Statutes 1909, providing that wills executed and admitted to probate in other States, and attempting to convey real estate in this State, may be contested in the same manner as wills executed and proven in this State, where an attempt is made to put such foreign wills in force in this State by placing a duly authenticated copy and the judgment of probate of the same upon the land records of this State, is a constitutional statute, and does not violate the full-faith-and-credit clause of the United States Constitution. • Every State has full and exclusive power to determine by what methods real estate situate within its borders may be conveyed or devised.
    2. -: Limitations. The Statute of Limitations governing the contest of foreign wills does not begin to run until a duly authenticated copy of the will and of the judgment admitting it to probate, is recorded in the land records of Missouri where the land devised is situated.
    3. -: -: Governed by Laws of This State. A suit to contest the validity of a foreign will devising lands in this State is not barred by limitations unless barred by the statutes of this State, though it may be barred by the statute of the State where made. The statutes of this State govern. Lands in this State pass directly to the heirs of deceased; and the executor, whether foreign or domestic, has no right to inter-meddle with such lands until such will be probated here.
    4. -; Judgment Annulling: Res Adjudioata. A judgment of a circuit court of the county where the lands lie and where an authenticated copy of the will devising them and of the judgment admitting it to probate has been recorded, in a suit brought within the time prescribed by our Statute of Limitations, and resulting in an annullment of the will, if unappeaied from, is final.
    5. -: -: -: Parties: Grantees of Devisees. The statute does not require the grantees of parties who have received land through the will to be made parties to the suit contesting its validity. If the devisees and legatees were made ■parties to the suit, the fact that their grantees were not made parties does not affect the finality of the judgment annulling the will. If there was a defect of parties in that suit, that issue could have been raised in that action; and the rule is that all matters which could have been properly adjudicated in that action are res adjudieata when the same matters are sought to be relitigated in another action.
    6. -: -: Title: Interest of Prior Grantees of Devisees. The - prohate of the will in the foreign State and the filing of an authenticated copy of it and of the judgment of probate, in the office of the recorder of the county in this State in which the lands lie, make out a prima facie case of title in the devisees in the will named; but the title attempted to be passed by the will does not become complete or perfect in such devisees until the time has expired for contesting the same in this State, as provided by section 569, Revised Statutes 1909; and the grantees of such devisees, who purchase prior to that time, purchase pendente lite, or subject to such subsequent suit as may be instituted, prior to the running of the Statute of Limitation, to annul the will; and the will being annulled by such a suit, their title, is defeated by the annullment of the will.
    7. -: -: Complete as to ail Devisees. The judgment annulling a will does not operate only as to the plaintiff in the contest suit. When a will is contested, the contest acts upon the interests of every party concerned therein, and if it is adjudged to he no will as to the one plaintiff, then it cannot be valid as to any one named in the will as devisee or legatee.
    8. -: -: Acceptance of Bequests and Devisees Under Will: Estoppel in Partition: Advancements. Legatees and devisees who have received bequests and devises of property in this and another State given them by the foreign will are not estopped from claiming any share in Missouri land after the will has been annulled by a judgment of court, and the land by it devised has been brought into partition; but the bequests received by them as legatees or devisees should be charged to them as advancements and being so treated should be brought into hotchpot, when the Missouri lands are sold and the proceeds distributed among the heirs.
    9. -: -: Lands and Property in Other States: Jurisdiction: Distribution. The courts of Missouri have no power to adjudicate the titles of lands in another State, nor to determine how an estate shall be administered there; but they can look beyond the boundaries of their own State to ascertain whether or not a litigant demanding property in Missouri has done anything in another State that would bar or limit his right to participation in the distribution of the Missouri property.

      10. -: -: Rent During Pendency of Suit. If rent, upon the annulment of the will, is to be charged, in the interlocutory decree in partition^ against a devisee of certain lands in possession during the time the suit contesting the validity of the will was pending, it should also be charged against other devisees of other lands1 in their possession during that contest; and if rents are not charged against the latter, neither should they be charged against the former.
    11. -: -: Interest: On Advancements: On Bequests. Interest should not be charged on advancements; and legatees who had received bequests under the will, in another State, which are adjudged to be advancements as the price of their participation in the proceeds of lands sold in this State, after an annulment of the will, should not be charged interest on those bequests.
    Appeal from Caldwell Circuit Court. — Hon. F. H. Trimble, Judge.
    Reversed and remanded {with directions).

      Crosby Johnson, C. C. Johnson and J. M. Davis é Son for appellants.
    (1) Until a will is probated it is not effective to pass title. Shaffer v. Howerton, 123 Mo. 637; Dublin v. Chadbourn, 16 Mass. 433; Bacon v. Railroad, 145 HI. App. 502. (2) Probate in common form is as final ,...and conclusive after the lapse of the statutory period for contest as probate in solemn form. Crippen v. Dexter, 79 Mass. 330; Wells v. Wells, 4 T. B. Monroe, 152; Duncan v. Duncan, 23 111. 324; Parker v. Parker, 65 Mass. (11 Cush.) 519. (3) Contest must be in courts where probated. Crippen v. Dexter, 79 Mass. 330; Tilt v. Kelsey, 207 U. S. 43; Coming’s Will, 159 Mich. 474; Rachnan v. Taylor, 204 Mass. 394; Bryan v. Nash, 110 Ya. 329. (4) Admission of will, to probate is a special proceeding and not governed^by the usual rules of pleading and practice. Wells v. Wells, 4 T. B. Monroe, 152; Clearchrings Twp. v. Blough, 88 N. E. 611. (5) Where the probate act is silent, resort may be had to the general code as to parties and practice in contest cases. Lilly v. Tobein, 103 Mo. 477; State es reí. v. Guiño tte, 157 Mo. 513. (6) Answers in a contest case, averring that defendants had no sufficient information to affirm or deny the allegations of the petition, are equivalent to a general denial. Pomeroy on Remedies, sec. 640; Bliss on Code Plead., sec. 326; Walsor v. Hawkins, 60 Mo. 560; Humphrey v. McCall, 70 Am. Dec. 626. (7) More was required in the Sloan contest to give the circuit court jurisdiction than merely filing a petition and getting service on defendants. Heady v. Crouse, 203 Mo. 100. (8) .The relief granted ought not to be broader than issues tendered by the pleadings. Powell v. Crow, 204 Mo. 481. Howard v. Brown, 197 Mo. 53. (9) The defendants to the contest suit were adversaries of Mrs. Sloan, but not of each other. Badeau v. Logan, 2 Paige, 209; Glasner v. Weusberg, 43 Mo. App. 244; Roselle v. Bank, 119 Mo. 84. (10) A decree is only conclusive on adversary parties. McMahon v. Geiger, 73 Mo. 145; Fiene v. Kirchoff, 176 Mo. 576; Freeman on Judgments (1 Ed.), sec. 178. (11) As neither the bank nor Johnson was made parties to the contest proceeding, the decree in the Sloan case did not affect their rights under the deed of trust. Pease v. Iron Co., 49 Mo. 124; Eddie v. Parks, 31 Mo. 477; McCarthy v. Scott, 113 U. S. 340; Rice v. Hoskins, 105 Mich. 303; Short v. Galway, 83 Ky. 501. (12) In Missouri a will contest is in the nature of an appeal from the decision of the probate court. Hughes v. Burriss, 85 Mo. 660; Schiff v. Peters, 111 Mo. App. 447; Benoist v. Marvin, 48 Mo. 48. (13) A proceeding to establish a will is a proceeding in rem. Jourdan v. Meyer, 31 Mo. 40; 23 Am. & Eng. Eney. Law (2 Ed.), 112, 116, 134, 143; Freeman on Judg.. sec. 606; Wells v. Wells, 5 Litt. 273; State v. McGlynn, 20 Cal. 228. (14) A contest can only be inaugurated by filing a petition in the circuit court. Kenrick v. Cole, 46 Mo. 83; Stevens v. Larwill, 110 Mo. App. 140; Stowe v. Stowe, 140 Mo. 594; Stevens v. Oliver, 200 Mo. 492; Banks v. Banks, '65 Mo. 432. (15) A foreign probated will cannot be contested until recorded in tbe probate court; otherwise it would not be in the nature of an appeal. E. S. 1909, secs. 1788, 4630; Cabanne v. Skinker, 56 Mo. 357. (16) The judgment of a probate court of any State admitting a will to probate is conclusive until reversed. Hilton v. G-uyot, 159 U. S. 166; Eorer on Interstate Law, 4, 194, 264; Swearingen v. Morris, 14 Ohio St. 424; Despard v. Churchill, 53 N. Y. 192. (17) Where the courts of his domicile have declared a testator sane and not unduly influenced, the findings of the court are conclusive on those points, and the courts where his real estate is located cannot, under pretext of ascertaining whether it conforms to the laws of the latter state, relitigate these issues. Crippen v. Dexter, 79 Mass. 330'; State v. Court, 34 Mont. 96; Eorer on Interstate Law, 266. (18) Probating a will is a judicial act. Keith v. Keith, 80 Mo. 125; Bright v. White, 8 Mo. 421. (19) A duly authenticated copy of a foreign probate is under the protection of the Constitution and laws of the United States. Bright v. White, supra; Drake v. Curtis, 88 Mo. 644; Ives v. Salisbury, 56 Vt. 565; Willet’s Appeal, 50 Conn. 330; Jones v. Williams, 31 Ark. 92; Woerner’s Am. Law of Adm., see. 226, p. 496. (20) Where a will is proven in a sister state, in conformity with our laws, the judgment is final and conclusive. Stevens v. Oliver, 200 Mo. 492; Cohen v. Herbert, 205 Mo. 537; Woerner’s Law of Adm., sec. 226, pp. 493-496; Long v. Patten, 154 U. S. 573; Tilt v. Kelsey, 207 U. S. 43; Little v. Herndon, 10 Wall. 26; Eorer on Interstate Law, 264; Estate of Clark, 148 Cal. 108. (22) A will conforming to our law, probated in a sister state, passes title to Missouri land, without being probated or recorded here. Lewis v. St. Louis, 69 Mo. 592; Halle'v. Hill, 13 Mo. 613; Keith v. Keith, 80 Mo. 123, 97 Mo. 228; Bright v. White, 8 Mo. 421. (23) After title had passed to the devisees, declaring the will void would not divest that title from the devisees. Lambird v. Blumenthal, 26 Mo. 471; 2 Daniels’ Chancery PI. & Prac. 1082. (24) Devolution of title by operation of law never confers-a joint title. 1 Wash, on Real Property (3 Ed.), 554; 2 Black. Com. 181. (25) One heir can maintain ejectment for his several shares. Mc-Cracken v. McCraken, 67 Mo. 590; Breidenstein v. Bertram, 198 Mo. 328; Baker v. Henderson, 156 Mo. 366. (26) Our probate courts have no jurisdiction to adjudicate on land titles. Shields v. Ashley, 16 Mo. 471. (27) Secs. 3135, 4636 are in conflict. Hence the older is repealed or modified by the later statute. Rorer on Interstate Law, 264. (28) As the devisees have been in possession for more.than three years, claiming exclusive title, suit for partition will not lie. Colvin v. Huenstein, 110 Mo. 575; Hutson v. Hutson-, 139 Mo. 227; Whitaker v. Whitaker, 157 Mo. 353; 31 Am. & Eng. Ency. Law (2 Ed.), 1147; 146 Mo. 283; 157 Mo. 402,421; 130 Mo. 639. (29) Right of contest is a several and separate right accrued to each individual heir. Samson v. Samson, 64 Cal. 327; Exp. Povall, 3 Leigh, 316; Gornto v. Bonney, 7 Leigh, 234; Spencer v. Spencer, 79 Pac. (Mont.) 320; Ellis v. Crawson, 41 So. (Ala.) 942; Palmer v. Bradley, 154 Fed. 311; Morgan v. Adams, 211 U. S. 627; Hays v. Bowden, 491 So. 122. (30) After a will has been probated it resembles a fraudulent conveyance, and is good as against all the world, except one who successfully attacks it. Jacobs v, Smith, 89 Mo. 673; Whitaker v. Whitaker, 157 Mo. 353. (31) Where the statute regulating probate fixes a limit in time the contestors must bring themselves within its provisions for in- such case the limitation destroys the right. 18 Am. & Eng. Ency. Law (2 E-d.), 146; Regabauer v. Railroad, 92 Minn. 620; Farrell v. O’Brien, 199 U. S. 89; Ellis v. Davis, 109 U. S. 485; Railroad v. Hine, 25 Oh. St. 629; Ford v. Clark, 3 Fed. 849. (32) The limitation, makes it a statute of repose. Curtis v. Felard, 17 Mo. 383; Nelson v. Broadhack, 44 Mo. 490; Morgan v. Railroad, 51 Mo. App. 523. (33i) Plaintiffs’ cause of action being fully barred by the limitation -in the Arkansas statute is equally barred here. R. S. 1899', sec. 4280; Barkley v. Tootle, 163 Mo. 594; St. Louis v. Jackson, 128 Mo; 119; Groves v. Watts, 206 Mo. 373. (34) There being no attempt at contest, either in Arkansas or Missouri, for more than three years after the will was probated there, all grounds for contest were foreclosed. Jaicks v. Sullivan 128 Mo. 577; Smith v. Carroll, 41 Mo. App. 460; Sands’ Estate, 116 N. Y. Supp. 426; 19 Am. & Eng. Ency. Law (2 Ed.), 146. (35) Sec. 4280, R. S. 1899, was adopted after section 4636 and repeals the latter insofar as they are repugnant. State ex rel. v. Walbridge, 119 Mo. 383i; Evans v. McFarland, 186 Mo. 703; Negabauer v. Railroad, 92 Minn. 620'. (36) Devisees are not chargeable with rent of the premises. Smith v. Harrison, 131 Mo. 485-; Lilley v. Menke, 126 Mo. 140; Holloway v. Holloway, 97 Mo. 623; Beck v. Kallmeyer, 42 Mo. App-. 563; 21 Am. & Eng. Ency. Law, 1171. (37) Legatees and devisees, after accepting the bequest, are estopped from contesting the will. Woerner’s Law of Admr., sec. 227, p. 500-; Stone v. Cook, 179 Mo. 534; Stoppler v. Sillerberg, 220 Mo. 258; Cochran v. Thomas, 134 Mo. 258; 18 Am. & Eng. Ency. Law, 746; 11 Id. 446; In re Cummings, 153 Pa. St. 307. (38) Courts of one state will not try to reform judgments of sister states. Hassall v. Hamilton, 33 Ala. 280; Milne v. Yan Buskirk, 9 Iowa, 558; Bigelow on Estoppel (1 Ed.), 218; Destrehan v. Scudder, 11 Mo. 484: (39) State laws seeking to limit or restrain the credit or effect of judgments of sister state courts are unconstitutional. Story on Constitution, sec. 183; Bigelow on Estoppel, 204; Christmas v. Russell, 5 Wall. 290.

      John A. Cross and Pross T. Cross for respondents.
    (1) The judgment against the will in the former suit is final, and, even though erroneous, it cannot be the subject of collateral attack. The question of the validity or invalidity of that will, was finally and forever settled and determined by the judgment rendered in the suit brought by Emma Sloan to annul said will. In that will contest, the circuit court of Caldwell county had jurisdiction of the subject-matter (the lands being situate in that county), and of all the parties. And, with the exception of defendant bank, all the appellants in this present suit were defendants in that former suit, and their answers therein, show that they made precisely the same defense in behalf of the will in that case, that they now make in its behalf in this suit. In the former suit appellants set up as a defense the probate of the will in Arkansas, the running of the Statute of Limitations in that State, and the “due-faith-and-credit” clause of the Federal Constitution. On all these points the judgment of the Caldwell Circuit Court was against appellants, and against the will. Appellants then appealed from that judgment to the Supreme Court, but this court, in passing on that appeal, affirmed the judgment below, setting aside the will. Thus it is seen that as to the validity of the Higgins will, appellants had their day in court, and contested the proceedings upon the merits, and suffered défeat. Appellants are bound by the decision of the court; not only on all issues raised, but also on all issues that might properly have been raised. The matter is res judicata. Turnverein v. Hagerman, 232 Mo. 693; Cohen v. Herbert, 20b Mo. 537; Tie Co. v. Pulliam, 139 S. W. 148; Smith v. Kiene, 231 Mo. 233!; Johnson v. Stebbins, 167 Mo. 325; Emmert v. Aldrich, 231 Mo. 128;'Spratt v. Early, 199 Mo. 500; Cox v. Boyce, 152 Mo. 576; Donnell v. Wright, 147 Mo. 647; Hope v. Blair, 105 Mo. 85; Eosenheim v. Hartsock, 90 Mo. 357; Grey v. Bowles, 74 Mo. 419; Hotel v. Parker, 58 Mo. 329; Castleman v. Eelfe, 50 Mo. 588 ; Miller v. Benneker, 46 Mo. 194; Lewis v. Morrow, 89 Mo. 179; Sec. 556, E. S. 1909. (2) The court in the will contest action, had jurisdiction of the parties and the subject-matter. In the suit brought by Emma Sloan in the circuit court of Caldwell county, to annul the will of Mrs. Higgins, all heirs and persons interested were made parties and properly served with process, and therefore the court had jurisdiction over the parties to the action. The will which the former suit sought to annul and make void, devised and gave to appellants the lands in Caldwell county, for which partition is asked. At the time of her death Mrs. Higgins was a resident of Carroll county, Arkansas, and her will was duly probated in the county and State of her death and residence, and a properly authenticated copy of the will and probate thereof had been filed in the recorder’s office of Caldwell county prior to the bringing of the contest case by Emma Sloan, an heir of Mrs. Higgins. The subject matter of that action was to determine the validity of a' foreign will purporting to pass title to lands located in Caldwell county, the county in which the action was brought. The court in that action clearly had jurisdiction of the subject-matter. Sec. 569, E. S. 1909; Hope v. Blair, 105 Mo. 85- Cohen v. Herbert, 205 Mo. 556. It is only by grace of the statutes of this State, Secs. 567, 568 and 569, E. S. 1909, that a non-resident of Missouri can pass title to lands in this State since each state has sole control over the lands within its borders. The same legislative power that saw fit to extend to the non-resident owner of lands in this State, the privilege of devising such lands by will, also saw fit to reserve to the courts of this State, full power, jurisdiction and control in the matters of contests involving the validity of any such foreign will, as it affected lands in this State. (3) The courts of this State possess full power to pass upon the validity of a foreign will which affects title to Missouri lands, even though a final judgment of a sister State declares the will valid. The “due-faith-and-credit” clause of the Federal Constitution does not apply to questions affecting title to lands in another State. The law of the State where the land is located governs and controls in all matters pertaining to the transfer of title', whether by deed, last will or otherwise. And this is true not only in matters of forms to be observed in executing the will, but as to the capacity or incapacity of the testator to make a will. Sec. 569, R. S. 1909; Cohen v. Herbert, 205 Mo. 537; Keith v. Keith, 97 Mo. 228; Storage Co. v. Windsor, 148 Ind. 682; Lura v. Tucker, 17 Ind. 41; Schouler on Wills, sec. 491; Kerr v. Moon, 9 Wheat. 565; United States v. Crouch, 7 Cranch, 115; Clark v. Graham, 6 Wheat. 577; McMoon v. Scales, 9 Wall. 23; Devaughn v. Hutchison, 165 U. S. 566; Clark v. Clark, 178 U. S. 186. (4) The fact that the will was not filed in the probate court, was a defense available to appellants in the contest case, and cannot be considered in this case. Whatever issues might have been settled in the former suit, had they been brought forward, but were not, are as conclusively settled as were those specifically put in issue. Spratt v. Early, 199 Mo. 502; Johnson v. Realty Co., 167 Mo. 325; Hotel v. Parker, 58 Mo. 329. (5) The Higgins will was subject to contest in the Missouri court, even though a copy was not filed in the probate court. Cohen v. Herbert, 205 Mo. 556; Rodney v. Landan, 104 Mo. 260; Rodney v. McLaughlin, 97 Mo. 426. (6) The will cannot be void as to one heir and at the same time valid as to another heir. When the paper writing was de- ' dared not to be the will of Mrs. Higgins, at the suit of one heir, it ceased to be a will at all, and was as if it had never been executed. King v. Gilson, 191 Mo. 333; Wood v. Carpenter, 166 Mo. 485; Curry v. Bratnev, 29 Ind. 195; Bradford v. Andrews, 20 Oh. St. 208; Powell v. Koehler, 52 Oh. St. 10®; Estate of Freud, 73 Cal. 555. (7) Accepting a gift under will in Arkansas works no estoppel. (8) The evidence shows conclusively that none of the defendants were in possession of any of the lands when this action was brought. (9) Defendants’ bank and Johnson were not necessary parties in contest suit. Having taken a deed of trust on the land after the recording of the will in the office of the recorder of deeds of Caldwell county, but before the contest suit was instituted, they must be held to have taken said deed of.trust subject to the result of any contest that might legally be instituted within the five year period of limitation. And the will being set aside in that contest, then the only lien the bank has by virtue of its deed of trust, is on the interest which the grantor, T. W. Hines, has in the lands deeded, as an heir of Mrs. Pliggins. Neither the defendant bank or Johnson was a necessary party in the contest suit. Anthoney v. Rice, 110 Mo. 223; Hughs v. Burris, 85 Mo. 660; Borland on Law of Wills, p. 128. (10) It was proper to charge defendant T. W. Hines with rents received. Doerner v. Doerner, 161 Mo. 407; Snell v. Harrison, 131 Mo. 495; Gunn v. Thurston, 130 Mo. 339; Lilly v. Menke, 126' Mo. 190; Holloway v. Holloway, 97 Mo. 628.
   BROWN, J.

Action for partition of real estate in Caldwell county, Missouri. From an interlocutory judgment of the circuit court of that county determining the interests of the parties and ordering the real estate sold, the defendants Thomas Wesley Hines, William H. Hines, Lilian Hines and Hamilton Savings Bank appeal.

The plaintiffs and defendants are the collateral heirs of one Matilda A. Higgins, who died in the State of Arkansas on February 13, 1899, seized and possessed of about 840 acres of land in Caldwell county, Missouri; also real and personal property in Carroll county, Arkansas.

The petition sets out the interest of each of the parties to the action. Some of the defendants answered, admitting the allegations of the petition, and consenting that partition be made as prayed.

Defendant Thomas Wesley Hines filed a separate answer, claiming sole ownership of 320 acres of the Missouri land, hereinafter designated as the Kidder farm, through a will executed by Matilda A. Higgins, and admitted to probate in the State of Arkansas. Defendants William H. Hines and Lilian Hines also filed separate answers, claiming to be sole owners of about 500 acres of land in Missouri, devised by said will of Matilda A. Higgins, and known as the Shoal Creek farm.

Said separate answers contain a copy of the will of Matilda A. Higgins, and allege that a copy of said will, together with a judgment of the probate court of Carroll county, Arkansas, admitting the same to probate, duly authenticated, was filed with the recorder of deeds of Caldwell county, Missouri, on May 2, 1902.

Said separate answers admit that Emma Sloan, one of the plaintiffs in this action, instituted a suit in the circuit court of Caldwell county, in the year 1902, to contest the aforesaid will of Matilda A. Higgins; that a final judgment was entered in said action, annulling said will on account of the lack of testamentary capacity of the deceased. Said separate answers, however, allege that the judgment of the circuit court of Caldwell county, annulling the will of Matilda A. Higgins, is void because:

(1) The action to contest the will was barred, because not instituted within three years after the will was probated, as required by the laws of the State of Arkansas.

(2) That the circuit court of Caldwell county, Missouri, possessed no jurisdiction to hear and determine an action to contest a will duly probated in another state;

(3) That some of the plaintiffs and defendants (hereinafter named) have accepted bequests under the terms of said will, and are therefore estopped from denying its validity;

(4) That all of the persons interested as devisees and legatees under the will of Matilda A. Higgins, were not made parties to the said contest; and

(5) That as Emma Sloan was the sole plaintiff in the will .contest, the judgment in that case, if valid, could only operate to set aside the will as to her, and not a,s to the other heirs of Matilda A. Higgins.

The defendants Hamilton Bank and Crosby Johnson in a separate answer, allege that after the authenticated copy of the will of Matilda A. Higgins was filed in the office of the recorder of deeds in Caldwell county, Missouri, and before any suit was begun to contest the same, the defendant Thomas Wesley Hines borrowed from said bank the sum of $2500', and executed to Crosby Johnson, as trustee, a deed of trust upon the Kidder farm (sought to be partitioned), to secure said loan; that said loan has not been paid, and that said bank and its trustee, Crosby Johnson, were not made parties to the aforesaid suit of Emma Sloan to contest the will of Matilda A. Higgins; therefore, their interests are not bound by the judgment in said action.

Plaintiffs’ reply alleges that all of the defendants except the Hamilton Bank and Crosby Johnson, trustee of said bank, were made parties to said will contest; that said bank and Crosby Johnson were not necessary parties to said action; that said will of Matilda A. Higgins was set aside and annulléd at the July term, 1903, of the circuit court of Caldwell county; that all bequests under said will of Matilda A. Higgins which have been received by any of the parties to this action, were derived from personal property of Matilda A. Higgins in the State of Arkansas; and that the acceptance of snch bequests does not estop any of the parties to this action from claiming the real estate of deceased situated in Missouri.

It is conceded by the pleadings that the action of Emma Sloan under which the will of Matilda A. Higgins was contested, and annulled, was appealed to the Supreme Court, and that the judgment of the trial court was affirmed for the failure of appellants in said action to prosecute said appeal in accordance with the rules of this court. Such evidence as is necessary to a full understanding of the casé will be recited in our opinion.

OPINION.

The first point we must consider is the legal effect of the suit of plaintiff Emma Sloan under which the will of Matilda A. Higgins was annulled.

Did the circuit court of Caldwell county, Missouri, have jurisdiction of the subject-matter of that action, and did it acquire jurisdiction of the parties ?

The issues joined involve a construction of section 569, Revised Statutes 1909, authorizing the contest of wills admitted to probate in other States in the same manner as wills executed and proven in this State.

Does this section, as defendants contend, conflict with section 1, article 4, of our Federal Constitution, prescribing that full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State? We do not understand that this section of the Federal Constitution is of universal application.

While the decisions of this court show we have given full faith and credit to judgments rendered in other States where such judgments were rendered by courts having jurisdiction of the subject-matter and of the parties whose interests were adjudicated (Gould v. Crow, 57 Mo. 200; Anthony v. Rice, 110 Mo. 223), we think our General Assembly was acting within its proper sphere when it enacted section 569, supra, which provides that wills executed and proven in other States, attempting to convey land in this State, may be contested in the courts of this State when an attempt is made to put such wills in force here by placing them on the land records of our State.

This must necessarily be true, for the reason that every State has full and exclusive power to determine by what methods real estate situated within its borders shall be conveyed or devised, and how the same shall pass by inheritance. [Schulenberg v. Campbell, 14 Mo. 491; Richardson v. De Giverville, 107 Mo. 422; Gaven v. Allen, 100 Mo. 293; Keith v. Keith, 97 Mo. 223; Lucas v. Tucker, 17 Ind. 41; Hughes v. Hughes, 14 La. Ann. 85; Sevier v. Douglas, 44 La. Ann. 605; White v. Howard, 52 Barb. (N. Y.) 294; Kessler v. Kessler, 3 Pa. Co. Ct. 522; Story on Conflict of Laws (8 Ed.), Secs. 424 and 474 ; 2 Wharton on the Conflict of Laws (3 Ed.), par. 285-7.]

“The general doctrine is in accord with the principle which has become established in all civilized countries that real property is regulated in its descent, as in its tenure and transfer, by the lex loci rei sitae.” [14 Cyc. 21 b.]

We also hold that the Statute of Limitations governing the contesting of foreign wills does not begin to run until a duly authenticated copy of such foreign will, together with the probate thereof, is recorded in the land records of Missouri, where the land devised is situated. This, for the obvious reason that neither such foreign will nor the probate thereof in another State would be constructive notice to any citizen of Missouri, until such copy is filed here. [Keith v. Keith, 97 Mo. 223.] It is also obvious that the Missouri Statute of Limitations as to the contest of wills g’overns in suits for the contest of foreign wills. We arrive at this conclusion from the well known principle of law that lands in this State pass directly to the heirs of the deceased; and the executor, whether foreign or domestic, has no right to intermeddle with such lands until such will be probated. [Cabanne v. Skinker, 56 Mo. 357; McPike v. McPike, 111 Mo. 216; Emmons v. Gordon, 140 Mo. 498; Sec. 139, R. S. 1909.]

We hold that the judgment of the circuit court of Caldwell county annulling the will of Matilda A. Higgins, is final, and the validity of such will cannot be relitigated in this action.

It would produce an intolerable condition of affairs if parties were permitted to litigate and relitigate the same facts in different actions. To suffer such a thing to be done would be to make of the courts instruments of oppression; and “the law’s delay;” considered both in ancient and modern times as one of the most aggravating evils which mankind is forced to endure, would then become utterly unbearable.

If there was a defect of parties in the mil contest, that issue could have been raised in that action; but it was not. The true rule is that all matters which could have been properly adjudicated in that action, are res adjudicaba when the same matter is sought to be relitigated in another action. [Western Tie and Timber Co. v. Pulliam, 237 Mo. 1; Smith v. Kiene, 231 Mo. 215, l. c. 233; Johnson v. Stebbins-Thompson Realty Co., 167 Mo. 325; Emmert v. Aldridge, 231 Mo. l. c. 128; Spratt v. Early, 199 Mo. l. c. 500; Miller v. Berneker, 46 Mo. 194.]

We find that the Hamilton Bank and Crosby Johnson are bound by the judgment of the circuit court in the will contest. The statute does not require the grantees of parties who have received land through a will to be made parties to a contest of such will.

The probate of the will of Matilda A. Higgins in the State of Arkansas and the filing of an authenticated copy of said will, and the probate thereof with the recorder of deeds of Caldwell county, Missouri, made out a prima facie ease of title in Thomas Wesley Hines, William H. Hines and Lilian Hines, as devisees in said will; but the title attempted to be passed by said will could not become complete or perfected in said devisees until the time had expired for contesting the same, as provided by section 569‘, Revised Statutes Í909.

Consequently, the Hamilton Bank and Crosby Johnson in taking the deed of trust from Thomas Wesley Hines, purchased pendente lite, or subject to such subseqent litigation as might be instituted affecting the validity of the will; and their title, except so much thereof as is decreed to said Thomas Wesley Hines in this action, was defeated by the annullment of the will. The doctrine herein announced finds support in the case of Hughes v. Burriss, 85 Mo. 660, and Borland’s Law of Wills and Administration, p. 128.

The contention of defendant Thomas Wesley Hines, that as no one except Emma Sloan was a plaintiff in the will contest, the judgment in that case only operates to annul the will as to her, leaving it in full force as to the other plaintiffs and defendants in this action, is wholly untenable. When a will is contested, the contest acts upon the interests of every party concerned therein, and if it is adjudged to be no will as to the plaintiff, then it cannot be valid as to anyone named in the will as devisee or legatee. [Wood v. Carpenter, 166 Mo. 485; King v. Gilson, 191 Mo. 333; Brown v. Anderson, 13 Ga. 171; Tibbatts v. Berry, 49 Ky. 473.]

The record in this case shows that Matilda A. Higgins by her will, devised to defendant Thomas Wesley Hines 320 acres of land in Caldwell county, Missouri, known as the Kidder farm. The said defendant received no further bequest or devise from said Matilda A. Higgins; and that he entered into possession of the said Kidder farm through a tenant, and collected the rents, aggregating $3071.40, and after expending $686.58 for taxes, improvements and insurance, his net income from said property was $2384.82, This was' before the will was annulled. In 1902 when the action to contest the will was instituted, an administrator pendente lite was appointed in Missouri, who took possession of said Kidder farm, and has held same ever since. Said Thomas' Wesley Hines was appointed administrator of the estate of Matilda Higgins by the probate court of Carroll county, Arkansas, and has undertaken to carry out the provisions of her will. He has collected and disbursed, pursuant to the provisions ■ of the will, most of the estate in Arkansas.

It appears from the evidence that two of the plaintiffs, to-wit, Madison Hines and Thomas W. Hines, and three of the defendants, to-wit, William H. Hines, Susan McCormick and Lilian Hines, have accepted of defendant Thomas Wesley Hines, administrator as aforesaid, bequests or devises of property made to them by the will. Defendant Thomas Wesley Hines pleads and contends that the five last named heirs of Matilda Higgins, having accepted property under the will, are wholly estopped from claiming any share of the Missouri land..

The estoppel pleaded against these five parties on account of the receipt by them of the bequests and devises of property under the will, raises- a very difficult issue and one on which the briefs in the case give us no light; nor have we been able to find a parallel case in American jurisprudence.

It is a well settled doctrine that after accepting benefits or bequests under a will an heir cannot be allowed to contest same. [Stone v. Cook, 179 Mo. 534.] But we have seen that when a will is set aside at the suit of one heir it is set aside as to all. Then what should be done with those heirs who have (as in this ease), received bequests and devises of property under the will? Shall they be allowed to retain the bequests so- received and yet claim a share of the real estate of deceased to the same extent as though said bequests had not been received? We hold they should not. The defendant Thomas Wesley Hines did not, under the will, receive any of the property of Matilda A. Higgins in Arkansas, and those heirs who accepted bequests made under the will have assisted in using up the estate of said deceased in Arkansas. Now they come into this partition suit and ask to be awarded the same shares of the real estate of Matilda A. Higgins in Missouri as if they had received no bequests.

The interlocutory order of the circuit court of Caldwell county awards them the same shares in the Kidder and Shoal Creek farms in Missouri as though they had not accepted bequests under the will. This is a plain injustice to those defendants to whom property was devised in Missouri. The will, while invalid, was sufficient to enable some of the parties to receive under its provisions bequests and devises of considerable value; and they should not be allowed to share in the partition of the Missouri real estate to the same extent as if they had not accepted said bequests and devises.

While the courts of Missouri, have no power to adjudicate the titles of real estate in Arkansas, nor to determine how an estate shall be administered in that commonwealth, they can undoubtedly look beyond the State line to ascertain whether or not a litigant demanding property located in Missouri has done anything in another State which would bar or limit his fight to recover the Missouri property. [Mort v. Jones, 105 Va. 668.]

The interlocutory judgment holds that defendant, Thomas Wesley Hines is liable for $2384.32 for rents received by him from the Kidder farm in Missouri, which Matilda A. Higgins attempted to devise to him, and which farm he held until the institution of the will contest; but in s.aid interlocutory judgment, no rent is charged against defendants William H. Hines and Lilian Hines who, according to the evidence, were for several years in possession of the Shoal Creek farm in Missouri under said will of Matilda A. Higgins. No reason is apparent why defendant Thomas Wesley Hines should be charged with rent while no such charge was made against William H. Hines and Lilian Hines, who stand in the same position as he, so far as having enjoyed the use of some of the Missouri land prior to the institution of the will contest. In this respect, the judgment appealed from is erroneous.

After carefully considering the unusual situation which has arisen in this case through the annullment of the will of Matilda A. Higgins and the receipt, by five of the parties to this action, of bequests and devises under said will, we hold that said last named five parties are not wholly estopped from claiming a share in the Missouri lands. However, the ends of justice demand that after the Missouri lands shall have been sold for the purpose of distributing the proceeds thereof, those heirs who have received real estate in Arkansas or personal property under the provisions of the will, shall be charged with the respective bequests and devises so received as though said bequests and devises were advances made to them by Matilda A. Higgins during her lifetime; and being treated as advances, they should be brought into hotchpot.

The following named parties to this action have accepted bequests and devises in manner and form following:

Defendant Susan McCormick has accepted real estate in Arkansas, of the value of $3000;

Plaintiff Madison Hines has accepted $500 in cash;

Plaintiff Thomas W. Hines has accepted $75 in cash;

Defendants William H. Hines and Lilian Hines (children of Marion O. Hines) have jointly received $4065.23 in personal property and 528- acres of land in Arkansas, the value of which last mentioned land is not proven.

None of the last five named parties have been charged with interest on bequests or divises received by them, and as we have decided to treat those bequests and devises as advancements, no interest should be charged thereon. [Nelson v. Wyan, 21 Mo. 347.] Owing to the fact that none of the other parties who have received and held property under the will of Matilda A. Pljggins have been charged with rents or interest, we find it would be inequitable to charge defendant Thomas Wesley Hines with rent on the real estate in Missouri which he received and held until the will contest was' instituted.

To consummate justice between the parties to this action, under the peculiar facts disclosed by this record, we will reverse the judgment of the circuit court and direct it to enter a new interlocutory judgment and order of sale, which shall determine the interests of the several parties the same as they are recited in plaintiff’s petition, except that the item of $2384.32 of rent charged against the interest of defendant Thomas Wesley Hines shall be eliminated, and no rent should be charged against Wm. H. Hines and Lilian Hines. [Sec. 2394, R. S. 1909.]

Before making any distribution of the proceeds which mil arise from the sale of the Missouri lands, the court will add to the net proceeds of such sale the moneys and the value of the several properties received by the five heirs who have accepted and retained property under the will; and for that purpose, shall hear evidence as to ■ the value of the 528 acres of land in Arkansas devised to defendants William H. Hines and Lilian Hines.

For the purpose of directing how the proceeds of the Missouri land shall be disbursed, we will make an estimate of the value of the estate to be taken into consideration in making the order of distribution.

Estimated proceeds of Missouri land----$20,000

Estimated value of bequests and devises re- ■' ceived by plaintiffs Thomas W. Hines, and Madison Hines, • and defendants Susan McCormick, William H. Hines and Lilian Hines ........................ 10.000

(For convenience, this $10,000 item will hereafter be referred to as the Arkansas Fund.)

Total estimated value of estate..........$30,000

It will be necessary to take into consideration the “Arkansas Ftmd” in determining what shares shall be paid to those heirs who have received property under the will. This should be done in the following manner:

Plaintiff Thomas W. Hines being entitled, as an heir, to a forty-second share of this estimated estate of $30,000, should (if there had been no will) receive $714.28; and as two-thirds of this estimated estate was located in Missouri and the remiaining third was either located in Arkansas or collected by the Arkansas administrator there should be distributed to said Thomas W. Hines two-thirds of his share, or $476.18, from the proceeds of the Missouri real estate; and the remaining third of his share ($238.09) he should have received from the “Arkansas Fund”; but as he received only $75, or less than his share thereof, his share as an heir in the proceeds of the Missouri real estate should not be diminished by the receipt of the $75 bequest; and he should therefore be awarded $476.18 out of the estimated proceeds of the Missouri land.

Plaintiff Madison Hines having a sixth interest in the (estimated) estate of $30,000, is entitled to $5000; and two-thirds of that sum ($3333.33) should be his share of the proceeds of the Missouri real estate; and the remaining third or $1666.67, should be charged up to the “Arkansas Fund”; and his receipt of $500' from the administrator in Arkansas should not be held to diminish his claim as heir to the Missouri real estate.

Defendant Susan McCormick having a one-twelfth interest in this (estimated) estate of $30,000', is entitled to $2500; but as she has already received bequests and devises in Arkansas of the aggregate value of $3000 under the will which is more than her share of the entire estate, she should not be awarded any part of the proceeds of the Missouri real estate.

The defendants ‘William H. Hines and Lilian Hines being entitled jointly as heirs to two-eighty-fourths of this (estimated) $30,000 estate, to-wit, $714.28, and said last named parties having received property of the estimated value of $6425 under the will, which is more than two-eighty-fourths of the entire estate, should not be awarded any part of the proceeds of the Missouri real estate.

What we have said should not be interpreted as giving to the heirs who have accepted under the will the right to maintain claims ¡against each other. We have no jurisdiction of such an issue.

When the claims of the heirs who have accepted under the will, to shares in the proceeds of the Missouri land, shall have been determined in the manner we have herein directed, then the remainder of such proceeds shall be distributed to the remainder of the parties to this action, according to their respective interests, as stated in plaintiff’s petition, except, of course that the shares which would have been due Susan McCormick, William H. Hines and Lillian Hines if they had not received under the will, shall be distributed pro rata among the other parties to this action.

We have made these observations in order to devise a correct and equitable plan for dealing with those heirs who have already received part of the estate under the will, but our figures of course are not precise, by reason of the fact that the value of the property distributed under the will to five of the heirs and the "net proceeds of the Missouri land are only estimated; but we have given the rule which must govern the trial court in making its order of distribution after the lands have been sold (whatever the amount realized therefrom). The costs of this appeal, including any attorney’s fee which may be allowed to plaintiffs’ attorney for defending the appeal, shall be taxed solely against the respondents. It is so ordered.

Ferriss, P. J., and Kennish, J., concur.


author: FERRISS, P. J.

text:
    THE STATE v. N. J. HENDERSON, Appellant.
    Division Two,
    June 1, 1912.
    1. CARNAL KNOWLEDGE: Two or More Acts: Election. In the prosecution of an accused for statutory rape of an unmarried female of previously chaste character between the ages of fourteen and eighteen years, the State must stand on the first act of intercourse alone, because after the first act prosecutrix is no longer of chaste character. There is no need of an election.
    2. -: -: Instruction: Previously Chaste Character. An instruction which requires the jury to find that prosecutrix was of previously chaste character at the time of the sexual relation, at any time within three years before the filing of the indictment, is not error though there was evidence of more than one act, if there is testimony that the first act was within the said three years.
    3. -: --: -: -: Before Fourteen. Nor is it error because, covering three years, it included a period before prosecutrix was fourteen years old, when there is no evidence of any sexual act committed before she was that old.

      4. MOTION TO QUASH. A motion to quash the information cannot be considered if it is not preserved in the bill of exceptions.
    5. CARNAL KNOWLEDGE: Evidence of Separate Acts. Although a defendant charged with statutory rape upon an unmarried female of previously chaste character between the ages of fourteen and eighteen years, can be convicted for only the first offense, it is not error to permit testimony of subsequent acts. Such subsequent acts are not separate crimes, but are only corroboratory of the first act.
    Appeal from Jasper Circuit Court. — Hon. D. E. Blair, Judge.
    Attirmed.

      M. É. Lively for appellant.
    (1) The motion to quash the information is not preserved in this bill of exceptions, but is incorporated in the record. This information is so drafted that- it charges the defendant with an assault upon Doreene Decatur, and also charges him with the crime of carnal knowledge of Doreene Decatur, an unmarried female of previous chaste character between the ages of fourteen and eighteen years; all in one count and is multifarious for that reason. State v. Nichols, 124 Mo. App. 330; State v. Hedrick, 179 Mo. 300; State v. Boyd, 10-8 Mo. App. 518; State v. Harroun, 199 Mo. 519. (2) The court erred in overruling defendant’s written request to require the State to elect on which act it would proceed and stand and go to the jury, after the prosecuting attorney had made his opening statement to the jury of what all the testimony in behalf of the State would be; the prosecuting attorney evidencing his familiarity with the testimony, the court was then advised of what the testimony would be; it was the duty of the court to act at that time and protect the defendant’s rights. The defendant could only be convicted of one act, each act being a separate and distinct crime and offense; it being improper to admit evidence of any act after the act upon which the State would stand and go to the jury on. State v. Palmberg, 199 Mo. 249 ^ State v. Pruitt, 202 Mo. 51. (3) The court erred in overruling defendant’s request to require the State to elect upon which act of carnal knowledge the State would stand and go to the jury upon-after the prosecutrix had been placed upon the witness stand in behalf of the State and had been examined and her examination completed by the prosecuting attorney, and she had made a statement of all the acts and facts in the-case, and was tendered to the defendant’s counsel for cross-examination, before such cross-examination was made. The information contained but one count; defendant had a right to know at that 'time upon which act and which offense he should be required to defend, and meet it with evidence. State v. Palmberg, 199 Mo. 243; State v. Pruitt, 202 Mo. 51; People v. G-eness, 5 Mich. 305; State v. Achison, 91 Me. 240; People v. Clark, 133¡ Mich. 112. (4) The court erred in admitting evidence of acts by the prosecutrix after the first act testified to, or any act prior to the date she was fourteen years of age, as the statute would make the same act .a higher offense than that with which the defendant was charged. R. S. 1909', sec. 4471; Sec. 22, art. 2, Constitution; State v. Murphy, 141 Mo. 267; State v. Plant, 209 Mo. 307. (5) The court erred in permitting the prosecutrix to testify to several complete acts at different dates, covering a period of more than one and one-half years; after the first act and deflowering, the prosecutrix was no longer of chaste character. State v. Palmberg, 199 Mo. 233; State v. Pruitt, 202 Mo. 53; State v. Kelly, 191 Mo. 680; State v. Goodale, 210 Mo. 275; People v. Flaherty, 162 N. Y. 352; State v. McMahon, 234 Mo. 611; State v. Schenk, 238 Mo. 429. (6) The court erred by not directing the jury by its instructions that it could only find the defendant guilty of but one act under the information. State v. Pruitt, 202 Mo. 52. (7) The court erred in giving instruction of its own motion, 2, over defendant’s objection. Said instruction permitting the jury to find the defendant guilty of any act of carnal knowledge within three years prior to the 27th day of April, 1911, after admitting testimony of several acts, and complete acts, of carnal knowledge as testified to by the prosecutrix, and not limiting the jury to any one act of any date, but permitting the jury to ramble through, and some find on one act, and some on another. State v. Pruitt, 202 Mo. 51; State v. Kelley, 191 Mo. 680; State v. Good-ale, 210 Mo. 275; State v. McMahon, 244 Mo. 611; State v. Schenk, 238 Mo. 429.

      Elliott W. Major, Attorney-General, and Camp-hell Cummings, Assistant Attorney-General, for the State.
    (1) The information follows the language of the statute which individuates the crime, and clearly charges every element necessary to constitute the defense. It does not charge two crimes, viz.: One of assault and a different crime of carnal knowledge in one count, but merely charges carnal knowledge in the usual language of the approved precedents of this court. R. S- 1909, sec. 4472; State v. McCullough, 171 Mo. 576; State v. Hunter, 171 Mo. 439; State v. Hall, 164 Mo 528; State v. Knock, 142 Mo. 515. (2) The motion to quash is not found in. the bill of exceptions, but appears in the record proper, so it cannot be considered by this court, as it is not a part of the record proper. ■ To preserve it and the action of the trial court thereon for review, it must be embodied in the bill of exceptions. State v. Finley, 234 Mo. 603; State v. Wooley, 215 Mo. 675; State v. Tooker, 188 Mo. 438; State v. Finley, 193 Mo. 202; State v. Coleman, 199 Mo. 112. (3) In a carnal knowledge case over fourteen years of age, only the first act of sexual intercourse makes the offense, and therefore, notwithstanding the evidence may show any number of such acts, the evidence will prove but one offense, that being the first act. State v. Schenk, 238 Mo. 429; State v. McMahon, 234 Mo. 611. So, consequently, the evidence could never prove but one offense, and a motion to elect, necessarily, would not lie. State v. Soper, 207 Mo. 502; State v. Rawlins, 186 Mo. 501; State v. Williams, 191 Mo. 205; State v. Palmberg, 199 Mo. 233. (4) Proof of subsequent acts is admissible by way of corroboration or explanation of the act on which the indictment is based, unless such subsequent acts are too remote. 38 Cyc. 1483; Leedom v. State, 81 Neb. 585; People v. Castro, 133 Cal. 11; People v. Morris, 3 Cal. App. 1; People v. Soto, 11 Cal. App. 431; State v. Sebastian, 81 Conn. 1; State v. For • syth, 99 la. 1; State v. Stone, 74 Kan. 189 ; State v. Brown, 116 Pac. (Kan.) 508; State v. Robinson, 32 Ore. 43; Sykes v. State, 112 Tenn. 572; Reg. v. Rearden (Eng.), 4 F. & F. 6. (5) Instruction 2 does not commit the error mentioned in State v. Schenk, 238 Mo. 429; State v. Pruitt, 202 Mo. 49, and State v. Palmberg, 199 Mo. 233.
   FERRISS, P. J.

The defendant was convicted in the circuit court of Jasper county, April term, 1911, of having carnal knowledge of Loreene Decatur, an unmarried female of previously chaste character between the ages of fourteen and eighteen years, and sentenced by the court to two years in the penitentiary.

The evidence on the part of the State tended to prove that the prosecutrix, who resided with her parents at Webb City, was between fourteen and eighteen years of age at the time of the commission of the alleged offense, and that defendant was a mute, married, about fifty-two years of age, and carried on a shoe repairing shop in said city. The prosecutrix testified that it has been her custom to carry shoes for her mother and neighbors to defendant’s shop for repairs for about a year and a half before the filing of the information, and that defendant had intercourse with her, in .a room back of his shop, three or four times in the early part of 1911. On cross-examination, however, she stated that he had committed the act but twice, the last time about March 29 to 30,1911, and the first time, two or three weeks earlier. The last time the act was committed, the girl, as she admitted, made the proposal herself.

The prosecutrix further testified that she had never had sexual relation with any boy or man other than the defendant. Her testimony as to her frequent visits to defendant’s shop was corroborated by a horseshoer, whose shop was a short distance west of that of defendant, and by an employee of a bakery situated across the street from defendant’s shop. These two witnesses testified that when prosecutrix visited the shop they would see defendant go to the door, look up and down the street, and then close the door. This was noticed by them many times.'

Defendant testified through an interpreter. He denied that he ever had or attempted to have intercourse with the prosecutrix, or that he ever touched or tried to touch her.

1. The defendant urges error in that the court refused to compel an election by the State, at the close of the testimony of the prosecutrix, of the particular act on which it would stand. The court held that an election would be proper at the close of all the evidence for the State. Both court and counsel proceeded on the wrong theory. In a prosecution for statutory rape upon a female under fourteen years of age, each act of intercourse is a separate felony, and an election is proper at the earliest time when it is apparent that the State can make an intelligent election. [State v. Hurley, 242 Mo. 452.] In the case at bar there is no election. The defendant can be convicted for the first offense only, because then only is the prosecutrix of chaste character. [State v. Schenk, 238 Mo. 429; State v. McMahon, 234 Mo. 611.]

2'. Defendant claims that the following instruction given by the court is erroneous:

“No. 2. You are instructed that if you find and believe from the evidence in this case, beyond a reasonable doubt, that at the county of Jasper and State of Missouri, on or about the--day of April, 1911, or at any time within three years prior to the 27th day of April, 1911, the date of the filing of the information in this case, the defendant, N. J. Henderson, did unlawfully and feloniously have carnal knowledge of the witness, Dorenna Decatur, and if you further find that said Dorenna Decatur was an unmarried female of the age of more than fourteen years and less than eighteen years at said time, and further find that said Dorenna Decatur was of previously chaste character, and you further find that the defendant was over the age of sixteen years at the time, you will find the defendant guilty as charged in the information, and so say by your verdict.”

As the prosecutrix was of chaste character only when the first act testified to by her was committed, this instruction necessarily limited consideration by the jury to such first act. It differs from the instruction condemned in the Schenk case, supra, in that the latter related the question of chaste character to the time charged in the information, and not to the time when the act was committed. It is further objected that this instruction, covering three years, included a period before the prosecutrix was fourteen years old. As to this objection, it is sufficient to say that there was no evidence of any act committed before she was fourteen years old.

3. The motion to quash cannot be considered as it is not preserved in the bill of exceptions. [State v. Finley, 193 Mo. 202; State v. Tooker, 188 Mo. 438; State v. Coleman, 199 Mo. 112; State v. Wooley, 215 Mo. 620.]

4. There was no error in permitting testimony of subsequent acts. They were not separate crimes, bnt merely corroboratory of the testimony as to the first act. The views expressed in State v. Palmberg, 199 Mo. 243, refer to statutory rape upon a girl under fourteen, when each offense is a separate felony.

We find no reversible error in the record. The judgment is therefore affirmed.

Kennish and Brown, JJ., concur.