author: WALKER, J.

text:
    THE STATE v. ALVIN CLINTON, Appellant.
    Division Two,
    June 3, 1919.
    1. INSTRUCTION: For Murder in First Degree: Conviction of Second Degree. If under an indictment for murder in the first degree the evidence authorizes an instruction for murder in that degree and such an instruction is given, as well as one for murder in the second degree, and the verdict is for murder in the second degree, the judgment will not be disturbed. The giving of an instruction for the higher degree is authorized by the evidence, and the conviction for the lower degree is authorized by the statute (Sec. 5115, R. S. 1909); and the giving of the instruction for the lower degree’ being favorable rather than otherwise to defendant, is not error.
    2. -: Accidental Homicide. Testimony for defendant that he was endeavoring to wrest from deceased a pistol with which the latter was attempting to assault him when it was discharged, resulting in the death of the aggressor, if true, brings defendant within the purview of Section 4452, Revised Statutes 1909, defining an accidental homicide; and defendant cannot complain of an instruction based on such facts, although stated somewhat more strongly than the testimony authorizes, and directing his acquittal, in the event they are found to be true.
    3. -: -: Self-Defense. If the' testimony of defendant’s witnesses tends to show that the killing was accidental, and there is also some testimony to sustain a conclusion that the killing was done in self-defense, it is not error of which defendant can complain to instruct on the theory of accidental homicide, as well as that of self-defense.
    4. -: Defining Self-Defense. The instruction defining the conditions under which defendant was authorized to act in his own defense, in the stereotype form frequently approved, is again approved, on the authority of State v. Miles, 253 Mo. 427.

      5. -: Motive. The intent which moved defendant to commit the crime having been shown, it is not error to refuse to instruct on motive.
    6. EVIDENCE: To Prove Motive. Testimony in regard to transactions between defendant and a third person, other than those immediately concerning the difficulty which resulted in the killing, tending to establish a motive for the crime, is admissible.
    Appeal from St. Louis City Circuit Court. — Mon. Victor M. Falkenhainer, Judge.
    Affirmed.

      Williams & Rollins for appellant.

      Franje W. McAllister, Attorney-General, and G. P. LeMire, Assistant Attorney-General, for respondent.
    (1) The State’s instruction No. 2 is an instruction on murder in the first degree. The defendant was found guilty of murder in the second degree, hence error in the instruction is not material, and same will not he reviewed here. State v. Wilson, 250 Mo. 329; State v. Grote, 109 Mo. 345; State v. Stockwell, 106 Mo. 36. (2) The court did not err in giving the instruction on murder in the second degree. Kelly’s Criminal Law and Procedure, sec. 4899; State v. Whitsett, 232 Mo. 522; State v. West, 202 Mo. 138; State v. Bobbitt, 215 Mo. 33; State v. Edwards, 203 Mo. 543; State v. Darling, 199 Mo. 202. (3) Instruction No. 5 is not .erroneous. State v.‘Wisdom, 84 Mo. 190; State v. Stockwell, 106 Mo. 39-40; State v, Smith, 114 Mo. 420-422. (4) The court did not err in refusing the instruction on motive. State v. Brown, 168 Mo. 449; State v., Linn, 169 Mo. 664. (5) ■ Extraneous matters which show motive are admissible in evidence. State v. Greaves, 243 Mo. 540; State v. Keller, 263 Mo. 539.
   WALKER, J.

Defendant was charged by informamurder in “the first degree. Upon a trial, he was contion, in the Circuit Court of the City of St. Louis, with victed of imirder in the second degree, and his punishment assessed at twenty years’ imprisonment in the Penitentiary. From this judgment he appeals.

The defendant, as the business agent of a local industrial union, in the City of St. Louis, collected back dues from a member of the union named Hammerle, but failed to account for same, thus depriving the latter of his right to a transfer, which he had demanded upon the payment of the dues. Hammerle related his grievance to one Samuel Nacer, a member of the union, and, at a meeting thereafter, Nacer charged the defendant with the delinquency. Subsequently, a special meeting of the union was held to consider the removal of the defendant from the position of business agent on account of this delinquency, and for other questionable transactions connected with the business of the union. When Hammerle arrived at this meeting, the defendant attempted to assault him, and upon the former denying that he had preferred the charges against the defendant, the latter «aid: “Where, then, is the s— of a b— that does make this trouble ? ’ ’ He supplemented this remark by ordering Hammerle from' the hall, and upon the latter’s leaving, followed him out into the street. A short distance from the building, Samuel Nacer appeared and repeating the language of the defendant in his inquiry as to who had started the trouble, said: “I am the man you are looking' for.” Whereupon, Nacer and the defendant engaged in a fist fight in which the defendant was knocked down three or fqur times, when a police officer appeared and stopped the difficulty. Nacer and Hammerle then returned to the hall, and the defeildant went down the street. A few minutes thereafter, the defendant went back to the hall, and upon entering, proceeded to where'Nacer and Hammerle were sitting. When within two or three steps of Nacer, the defendant motioned to him and, as he arose, defendant shot him. Nacer fell, dying almost instantly. As defendant attempted to leave the scene, a pistol was seen in his hand. He was forcibly detained until police officers arrived and took him in charge. An autopsy disclosed that Nacer had been shot and that a 38-caliber pistol ball had entered just above his left nipple, which penetrated the heart, and lodged near one of the vertebrae. The foregoing is substantially the testimony introduced on behalf of the State.

Defendant’s testimony is that, when he followed Hammerle into the street, he was assaulted and beaten .by Nacer, Hammerle and one Steffan; that after his assailants were made to desist by a police officer, they went back into .the hall an,d in a few moments he followed them. Other witnesses who testified for defendant, stated that when he returned to the hall, as he was passing where Nacer was sitting, the latter arose and struck him over the head with a pistol; that a scuffle ensued for the possession of the weapon; that while defendant and Nacer were thus engaged, Steffan came up behind the defendant and' struck him on the head with a chair, and that at this moment the pistol was discharged and Nacer fell. The jury did not give credence to the testimony of the defendant and his witnesses.

I. Defendant contends that the giving of an instruction for murder in the first degree was unauthorized. The evidence was sufficient to authorize this instruction. When, there is a conviction for a l°w6r degree of an offense, as in this case, an instruction for a higher degree is harmless. [State v. Morehead, 271 Mo. 88, 195 S. W. 1043; State v. Goodwin, 271 Mo. 83, 195 S. W. 725; State v. Wilson, 250 Mo. 323.]

- II. Defendant objects to the giving of an instruction for murder in the second degree on the ground that there was no evidence to sustain the same. There was evidence to sustain a conviction for murder in the first degree. The instruction, therefore, for murder in the second degree was more favorable than otherwise to the defendant, and he has no ground of complaint. [State v. Morrow, 188 S. W. (Mo.) 75.] Besides, under Section 4903, Revised Statutes 1909, it is provided that “any person found guilty of murder in the second degree or any degree of manslaughter, shall he punished according, to the verdict of the jury, although the evidence shows him to be guilty of a higher degree of homicide.” In addition to this statute, it is provided in our Criminal Statute of Jeofails (Sec. 5115, R. S. 1909), that no judg-. ment shall be arrested or in any manner affected because the evidence tends to show the defendant to be guilty of a higher degree of, the offense with which he was charged than that of which he was convicted. [State v. Barnes, 204 S. W. (Mo.) 264; State v. Morrow, 188 S. W. (Mo.) l. c. 76; State v. Whitsett, 232 Mo. 511.]

III. The court gave an instruction on accidental killing, based on defendant’s testimony, which, after hypothetically stating the facts as testified to by defen- • dant, authorized the jury, in the event they believed the same to be true, to render a verdict of acquittal. If there was error in this instruction it was in defendant’s favor, in the court putting the facts, as hypothesized, more strongly than the testimony authorized. Instructions similar in all of their material features were approved in the Wisdom, 84 Mo. l. c. 190, and Stockwell, 106 Mo. l. c. 39, cases, in which the evidence was not more favorable to the defendants than in the case at bar. These rulings, however, are persuasive rather than determinative of defendant’s contention, which should be measured by its own facts. These, in the main, consisted, as defendant detailed them, of an effort on his part to wrest from his assail-, ant a deadly weapon with which the latter was attempting to assault him, when it was discharged, resulting in the death of the aggressor. If these facts were true, they brought the defendant within the purview of the statute defining an accidental homicide (Sec. 4452, R. S. 1909), as construed, and properly so, in State v. Coff, 267 Mo. l. c. 21, and the instruction was not error.

TV. Defendant requested and the court gave an instruction on self-defense. He complains of this as error. "While the testimony of the defendant and "that of his witnesses tended to show that the killing was accidental, there was also some testimony w£qej^ believed, sustained the conclusion that the killing was in self-defense. Under this state of facts it was not error for the court to instruct upon the theory of an accidental killing, as well as that of self-defense. This course could have resulted in no harm to the defendant, but gave him the benefit of either defense, as it might appear to the jury. [State v. Haines, 160 Mo. l. c. 569.] While the court, under the testimony, without prejudice to any substantial right of the defendant,, might have refused to instruct as to self-defense (State v. Reed, 117 Mo. 604), the error in thus instructing, i'f it can be so construed, wás more favorable than otherwise to the defendant,' and he will not be heard .to complain. [State v. Pohl, 170 Mo. 422, State v. Snead, 259 Mo. 427.]

V. Defendant contends that an instruction defining the conditions under which he was authorized to act in his own defense was error. This instruction, as to its tenor, was in the stereotype form freqnently approved by this court, most, recently in State v. Miles, 253 Mo. 427: If it be conceded, which we do not think the facts warrant, that the giving of this instruction was technical error, it was not prejudicial to the defendant, as we held in ruling upon the more general instruction in regard to self-defense, and consequently there is no merit in this contention.

VI. Other instructions, claimed by defendant in his motion for a new trial to have been request- ^ anq refused on behalf of the defendant, are not preserved in the record.

VII. The refusal of the court to instruct on motive was not error. The intent which moved the defendant to commit the crime having been shown, it was not material that the jury be instructed as to motive. [State v. Santino, 186 S. W. (Mo.) 976; State v. Aitken, 240 Mo. l. c.. 267.]

VIII. We find no prejudicial error in the rulings of the trial court upon the admission and rejection of evidence. Testimony was permitted to be ■ introduced in regard to transactions between one Hammerle, and the defendant, other than those immediately concerning the difficulty which resulted in the killing. This testimony tended to establish a motive for the crime, and hence was admissible. [State v. Greaves, 243 Mo. 540.]

Finding no error sufficient to authorize a reversal, the judgment is affirmed'. It is so ordered.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    BOYD GILES, Appellant, v. MICHIGAN CENTRAL RAILROAD COMPANY.
    Division Two,
    June 3, 1919.
    1. NEGLIGENCE: Two Acts Alleged: Proof of One. Where two acts are so pleaded as to form concurrent acts of negligence, namely, that the door of a vestibule to a car on which plaintiff was a passenger was left open and that he was by a jerk in the train thrown through the open vestibule to the ground, proof of both is necessary to a recovery; and if there is no proof of the jerk, there can be no recovery by plaintiff of damages for his personal injuries.
    2. -: No Possible Recovery: Error in Instructions. If under plaintiff’s allegations and proof he is not entitled to recover and the verdict is, for defendant, it is immaterial whether the instructions given or asked or refused were right or wrong.
    Appeal from Buchanan Circuit Court. — How. Thomas B. Allen, Judge.

      Affirmed.

      Sterling P. Reynolds for appellant.
    (1) No one saw this accident and plaintiff does not remember a thing about how it happened. The evidence shows beyond a question that the vestibule door of this car was and had been open. The law under such circumstances presumes the plaintiff to have been using ordinary care for his own safety. Wack v. Eailroad, 175 Mo. App. Ill; Buesching v. Gas Light Company, 73 Mo. 319; Dunlap v. Chemical Works, 159 Mo. App. 49; Johnson v. Eailroad, 150 Mo. App. 304. (2) Instruction No. 5 given for the defendant is not the law in this State. The mere fact that plaintiff fell from a vestibule train will authorize a recovery. (3) These vestibule doors are so built that when properly closed they serve as a guardrail or handle for passengers. Wagoner v. Eailroad, 118 Mo. App. 239; Johnson v. Eailroad, 150 Mo. App. 304; Daily v. Prior, 197 Mo. App. 583; Seigel v. Eailroad, 186 Mo. App. 645.

      Culver & Phillip for respondent.
    (1) If the court should have sustained a demurrer to the evidence, errors in instructions cannot be urged as grounds for reversing a verdict for the defendant. Carr v. Mo. Pac. Ey. Co., 195 Mo. 224; Moore v. Eailroad, 176 Mo. 545; Plummer v. Ford, 208 S. W. (Mo. App.) 490. (2) The demurrer should have been given. The specific negligence charged was that the defendant’s' employees negligently gave the train a quick jerk which threw the plaintiff through a vestibule door that the employees negligently permitted to be open, and that his fall was caused by the negligence of the defendant. in giving the train a quick jerk and in permitting the door to be open. Where two connected acts of negligence are charged either of which without the other would not, under the allegations, produce the injury, both must be provided; aud having failed to prove that he was thrown through the door by any jerk of the train, plaintiff failed to make a case. Kirn v. Harvey, 208 S. W. 479.
   WALKER, J.

In a suit for personal injuries brought by plaintiff against defendant, in the Circuit Court of Buchanan County, a trial resulted in a verdict for defendant, from which plaintiff appeals.

On December 25, 1913, plaintiff was a passenger on one of defendant’s solid vestibule trains, en route from New York City to Chicago. When the train reached the látter city, at about the 22nd Street crossing, the plaintiff, it is conceded, there being no eye-witness to the accident, fell through an open vestibule door and was injured. Soon thereafter he was found lying in an unconscious condition near the track by employees of the defendant. He was taken to a hospital in Chicago, and upon an examination by the attendant physician and the surgeon employed by defendant, it was discovered that he had a bruise on the right temporal region of his head. His blood pressure was taken, showing it to be above normal. A subsequent examination a few hours later showed a further increase in blood pressure. He remained unconscious during the night, and his blood pressure the next morning being greater, it was decided that there was such an injury to the brain as to render an operation necessary. In the meantime he had aroused from his stupor and became wildly delirious. An anaesthetic was administered and an .operation performed in which that portion of the skull underneath the bruise over the right temporal region was trephined and a portion of the bone removed. Other steps were taken in their order necessary to leave the wound in a condition to heal. Coming out from under the influence of the anaesthetic he again became violent, and it was necessary to administer opiates and place him under physical restraint to prevent his removing the bandages from the wound and inflicting injury on himself. After 'about a week he regained his normal mental condition, talked rationally, and recognized his friends. The wound healed without infection, and after about two weeks from the date..of the injury he left the hospital in seemingly good health.

The conclusions of experts as to the probable effect of the injury were widely variant, as is not infrequent in this character of testimony; at best they were problematical, or of little probative force. The fact appears, however, more potent than speculation based on assumptions of fact, that since the plaintiff’s recovery he has been pursuing with satisfaction to his employers his former vocation, that of caretaker in the shipment of live poultry. His principal contention is that he suffers from a loss of memory, and that his left knee is partially paralyzed, as a result of the injury. His own testimony, as preserved in the record, does not give color to this contention.

The petition, after the usual, formal 'and necessary allegations in a pleading of this character, the sufficiency of none of which is questioned, avers, in effect, that while plaintiff was a passenger on defendant’s solid vestibuled train, with a knowledge on his part as well as that of the agents and servants of the.defendant, of the presence, use and purpose of the vestibules connecting the cars, and that they should remain closed except to admit of the ingress and egress of passengers at stations, the defendant’s'agents and servants negligently permitted the entrance to the vestibule of the coach on which plaintiff was riding as a passenger, and that of the adjoining coach, to carelessly and negligently remain open while the train was in motion, without the knowledge of plaintiff; and while he was in the exercise of ordinary care in going from one coach to another, that said train gave a quick jerk and plaintiff was thrown through the open vestibule to the ground and permanently injured. The accident and plaintiff’s injury are more particularly pleaded as follows: “That in said fall and by reason thereof caused by the negligence of the defendants in permitting the vestibule to be open and the negligence and carelessness of the defendants’ servants in charge of said train in causing the said train to be jerked, plaintiff was thrown to the ground from said train in a violent and dangerous manner, his skull mashed and fractured, his head seriously and permanently injured and a hole torn into his skull; that he received a cerebral injury; that on account of said cerebral injury his left knee is partially paralyzed and will continue to be for the balance of his life; that the cerebral injury received by him is permanent and will never heal or cure; that by reason of said injury caused by the negligence of defendant’s agents and servants aforesaid, he has suffered great bodily pain and mental anguish and will continue to suffer great bodily pain and mental anguish the remainder of his life.

“Wherefore the premises considered, the plaintiff prays judgment against the defendants for the sum of twenty-five thousand dollars and for his costs herein expended. ’ ’

The answer was a general denial.

I. The petition, as the quoted portion of same discloses, charged two acts of negligence: the open entrance or door to the vestibule and a sudden jerk in the car. These were so pleaded as to form connected facts, the proof of both of which was necessary to a recovery. While separate specific acts of negligence may be charged and a recovery had upon proof of one, if that one is sufficient to constitute a cause of action (Jordan v. Transit Co., 202 Mo. 418), that was not done in the instant case. The only proof of negligence adduced was as to the open door or entrance. In addition to the absence of any evidence of a jerk in the ear, it is shown as inconsistent with , the occurrence of such a fact that at the time the accident must have occurred the train was moving on a straight and level track at a speed of no more than fifteen miles per hour. Under this state of facts, with the additional one, that the vestibule was at the time well lighted, the conclusion cannot reasonably be drawn that the plaintiff upon stepping out of the, car upon the vestibule was thrown therefrom and received the injuries for which he claims damages. Proof of the connected acts of negligence, therefore, as pleaded, was necessary to establish the liability of the defendant.

The facts here are parallel with those in the recent case of Kirn v. Harvey, 208 S. W. 479, in which Ellison, P. J., speaking for the Kansas City Court of Appeals, said: “It was necessary that each of the acts should occur in order to throw her from the car. The lurch of the car on the rough track would have been harmless if the door had been closed; and the open door would have been harmless if the car had not lurched on the rough track. The combined, or concurring, acts of negligence were necessary to make a case.”

The Supreme Court of Alabama, in Western Ry. Co. v. McPherson, 146 Ala. 427, held that where the negligence is alleged-as consisting of several acts, conjunctively averred, all must be proved before plaintiff is entitled to recover. A like ruling has been made by the Supreme Court of Michigan, in Wormsdorf v. Det. Ry. Co., 75 Mich. l. c. 477, where it is held that where the accident and resulting injury are alleged to have been caused by several negligent concurring acts and omissions, each must be proved to warrant a recovery.

II. Under the pleadings and in the absence of the proof noted in the case at bar, plaintiff was not entitled to recover. This being true, it is immaterial whether the instructions given or asked and refused were or wrong_ [Quinn v. Met. St. Ry. Co., 218 Mo. 545; Carr v. Railroad, 195 Mo. 214.] If a-record discloses that a plaintiff is not entitled to recover, the court should sustain a demurrer to the evidence. If, instead of doing so, the court submits the case to the jury and gives erroneous instructions, and the jury finds for the defendant, the verdict will not be disturbed, because it is for the right party, as plaintiff, under no circumstances, would have been entitled to a verdict. [Moore v. Lindell Ry. Co., 176 Mo. l. c. 545; Woods v. Railway, 187 S. W. (Mo.) 11.]

From all of which it follows that the judgment should be affirmed, and it is so ordered.

All concur.


author: FARIS, J.

text:
      In Re FRANK S. TARTAR.
    Division Two,
    June 3, 1919.
    1. HABEAS CORPUS: Motion Por Judgment on Pleadings: Pacts. Where the entire record consists of an application for a writ of habeas corpus, the return, and petitioner’s answer- to the return, together with respondents’ motion for judgment on the pleadings, the facts must be taken from the return.
    2. CONSTITUTIONALITY OF STATUTE: Raised by Party Not Affected. Before a person may be heard to question the constitutional validity of a statute he must be in such a position as regards it as to be directly affected by it.
    3. -: -: Fee for Bail Bond: No Bond Tendered. Before a party arrested for a violation of a city ordinance can be in a legal position to question the constitutional validity of the statute (Sec. 3459, R. S. 1909) exacting “a fee of fifty cents for each and every bond taken by any police officer” for his appearance in the proper court, he must tender a good and sufficient bond, signed by a good and sufficient surety; for lacking either of these things, the police officer was warranted in refusing to take and approve the bond tendered.
    4. APPEARANCE BOND: Insufficiency. A. mere printed skeleton -form of a bond, which does not set forth in the body thereof the name of either the principal or surety, nor the sum specified as a penalty, nor any date for the appearance of the principal, nor any certain court before whom he is to appear, and which is not signed by a qualified surety, or approved by a proper indorsement thereon, although signed by the principal and such disqualified surety, is not a sufficient appearance bond.
    5. -: -: Custom: Waiver. The fact that it had long been the custom of the police officer to accept a mere skeleton form of a bond, with none of the essentials of a sufficient bond appearing therein, except the signature of the principal, and the further signature of a person disqualified to act as surety, did -not constitute waiver and make it the duty of the officer to accept the skeleton paper tendered by the person under arrest.
    6. -: -: Officer Without Tower to Waive. An ordinance authorizing a police officer to take and approve the bond of a person arrested for a municipal offense is the officer’s power of attorney to take and accept the bond, and such arrested person will not be heard to deny knowledge of the terms of the ordinance, or to assert that the officer had power to waive a compliance with such terms. It would be against public policy to require the city for which such, officer acts, or assumes to act, to suffer to be bound by his waivers.
    7. •' -: Disqualified Surety. Where the ordinance provides that no one “who shall have standing against him an unsatisfied judgment rendered on a forfeiture of bond” shall be accepted as surety on an appearance bond, a bond signed by such person as its only surety is not sufficient, and the officer to whom such bond is tendered is not required to accept it. '

      Habeas Corpus.

    Writ quashed.

      C. J. Anderson for relator.
    (1) That portion of Sec. 3459, E. S. 1909, in issue here is unconstitutional, null and void, in this: (a) It is violative of Article 4, Section 53, Clause" 26, of the Constitution of 1875, in this: that it is a special law, and attempts to grant to a private corporation and its members a special and exclusive right and privilege, which is denied to other persons in the same class, (b) It is violative of Article 4, Section 46, of the Constitution in that it attempts to grant public money to a private corporation and the individual members thereof. (c) It is violative óf Article 4, Section 47, in that it attempts to authorize various cities to grant public money in aid of private corporations, and the individual members thereof, (d) It is violative of Article 10, Section 3, of the Constitution in that it permits the levying of taxes for private purposes. State ex rel. v. Eommel, 256 Mo. 611; State ex rel. Heaven v. Ziegenheim, 144 Mo. 283; State ex rel. v. Switzler, 143 Mo. 287; State ex rel. v. St. Louis, 216 Mo. 47. (2) That‘portion of See. 3459, R. S.- 1909, as - amended by the Laws 1913,'page 192, is violative of the Fourteenth Amendment of the Constitution of the United States in that it deprives each person arrested of property (fifty cents in cash) without due process of law. Every person arrested must, under this law, pay the fifty cents bond fee, in order to be released on bond, regardless of whether such person is innocent or guilty of the charge placed against him. (3) That portion of Sec. 3459, R. S. 1909, in issue here is violative of Article 4, Section 53, Clause 26, of the Constitution of Missouri, in that it grants a special and exclusive right, privilege and immunity to such police officers and police officials as are members of the St. Louis Police Relief Association, and denies the same to such police officers and police officials as are not members thereof. State ex rel. v. Tolle, 77 Mo. 645; State ex rel. v. Miller, 100 Mo. 439; State ex rel. v. Loomis, 115 Mo.- 307. (4) What becomes of the fifty cents fee after it is collected by the police officer is a very essential subject of inquiry in determining the constitutionality of the law. If the ultimate destination of the money collected is unlawful, then such law thereby becomes invalid, null and void. State ex rel. Heaven v. Ziegenheim, 144 Mo. 283; State ex rel. v. Switzler, 143 Mo. 287; State ex rel. v. St. Louis, 216' Mo. 47.

      Holland, Rutledge & Lashly for respondents.
    (1) Relator is not entitled to the writ upon the record presented here, because he did not at the time and never has since tendered a good bond with an eligible and qualified security, (a) It is admitted by the pleadings that Ike G-rodsky, the person tendered as security upon this bond, had at the time an unsatisfied judgment upon a bond forfeiture and several unsatisfied bond forfeitures pending- against him and under “the ordinance this circumstance rendered him ineligible as a bondsman, irrespective of his property or other qualifications. (b) The clerk in charge of the police station did not and could not waive the ineligibility of a proffered bondsman, whatever may have been his opinion as to the qualifications of the bondsman or his act in connection therewith. Police clerks have no inherent power to make or accept bail and can do so only by statutory (in this case ordinance) authority. 6 Corpus Juris, par. 207, p. 981. (c) The police clerk could not waive the ineligibility of a bondsman because the ordinance conferring power upon the clerk to approve and accept a bond limits that power to persons described in said ordinance as eligible, and the ordinance expressly disqualifies and makes ineligible attorneys-at-law, police officers, constables or deputy constables, officers of the city and persons who have standing against them an unsatisfied judgment rendered on a forfeiture .of bond, (d) The ordinance thus describes the conditions regulating eligibility of bondsmen, and since it is the only means or semblance of authority which the clerk has for approving bonds, it may not be waived by him, for if the ordinance is waived he has no power in the premises at all. (e) The “bond” offered and tendered here is not a bond at all, and while such blanks may have been accepted in ordinary practice, where, as here, the person applying for bail undertakes to tender a “good and sufficient bond” and stands upon his tender and insists upon his right to bail under said bond, the law will scan the instrument thus tendered and his case must stand or fall upon its legal sufficiency. State v. Wilson, 265 Mo. 19. (2) Upon the face of the pleadings no constitutional question is introduced or involved in this case and no constitutional question can therefore be properly considered by the court in its decision. Lohmeyer v. Cordage Co., 214 Mo. 688; State ex rel. v. Electric Co., 250 Mo. 527; Street v. School District, 221 Mo. 671; Milling Co. v. Blake, 2'42 Mo. 23. (3) Even if it should be held that the constitutional validity of that part of Sec. 3450, R. S. 1909, relating to the bond fee, may properly be considered in this case, nevertheless, upon the record here, the writ should be quashed and the case dismissed, (a) The statute is valid and constitutional. State ex rel. v. Herman, 75 Mo. 354; Lynch v. Murphy, 119 Mo. 163; White v. Railroad, 230 Mo. 287; State v. Rawlings, 234 Mo. 544; (b) The Legislature has the right to make reasonable terms upon which one may be admitted to bail, (c) The service required to be performed under the city ordinance, namely, examination of the surety, furnishing of the necessary conveniences for preparing a bond, making out, approving and filing same, are all in connection with and incidental to admitting the applicant to bail, and a charge of fifty cents for this service cannot be held to be unreasonable or objectionable. (4) The unconstitutionality of a statute on the ground that it denies equal rights and privileges by discriminating between persons or classes of persons may not be raised by one not belonging to the class alleged to be discriminated against. 12 Corpus Juris, p. 768, par. 789; State v. Parker Distilling Co., 236 Mo. 219; McCully v. Railroad Co., 212 Mo. 53; State v. McIntosh, 205 Mo. 589. (5) The fact that a part of the statute has been held to be unconstitutional does not affect the validity of the remainder. Green Co. v. Lydy, 263 Mo. 95; State ex rel. Bixby v. City of St. Louis, 241 Mo. 231; State ex rel. v. Gordon, 236 Mo. 142; State ex rel. v. Taylor, 224 Mo. 393.
   FARIS, J.

This is- an- original proceeding under the Habeas Corpus Act, brought by petitioner against Martin O’Brien, Chief of Police of the City of St. Louis, and A. W. Schwartz, Captain in command of the Central Police District of said city (herein called respondents), wherein petitioner avers that he is being re-, strained of Ms liberty by respondents.

The facts in the case are disclosed by the pleadings, which consist of the application for our writ, the return of the respondents thereto, and the answer of petitioner to said return.' The above pleadings together with respondents’ motion for judgment thereon, constitute the whole record in the case. Under settled rules of law, to which more definite reference will be made in the opinion, the conceded facts in the case must for the purpose of this discussion be taken from the return of the respondents. This return shows — and. therefore the facts are — that respondent Martin O’Brien is Chief of Police of the City of St. Louis, and that respondent A. W. Schwartz is Captain of Police of said city in charge of the Central Police District thereof. On the 26th day of November, 1918, petitioner was arrested by a police officer of the City of St. Louis on the charge of having-violated the provisions of an ordinance of said city regulating automobile traffic on the streets thereof. Petitioner was taken to the station of the Central Police District, accompanied by his attorney, and, presumably, by one Ike Grodsky. Both petitioner and said Grodsky as his proposed security signed a paper which is referred to in the pleadings and briefs in the ease as a “bail bond.” This so-called bail bond, as signed and tendered for filing and approval (omitting venue and the residences of petitioner and said Grodsky), reads as follows:

We, the undersigned, — -as principal, and-as security do hereby acknowledge ourselves each to be indebted to the City of St. Louis in the sum of -hundred dollars, to be levied upon our respective goods, chattels, lands and tenements UPON CONDITION, that if the said above named principal shall personally be and appear before the City Court Jkdga- of the City of St. Louis, at City Court-of said City, on the-day of-. — , 191— at the opening of the aforesaid City Court, in the forenoon of said day, then and there to answer a charge of violating an Ordinance of said City, and shall also appear on any future day to which this cause may be continued, and shall not depart thence without leave being first had and obtained from said City Court Judge, then this recognizance to be null and void, otherwise to remain in full force and effect. Principal Frank S- Tartar [Seal] Security Ike Grodsky [Seal] day of-, 191— Taken and certified this--in charge of-Distriet.

While there is a blank space on the so-called bail bond which was apparently intented for the signature of the police officer, or so-called desk sergeant, in charge of the police station, evidencing the approval of such bond by such officer, no such signature or approval — as will be noted — appears on the above paper.

The return avers that Ike G-rodsky, whose signature appears on the above paper as the proffered security therein, was not at the time of his tender as such security an- eligible bondsman; for the reason that there was outstanding against him, at the time he was tendered as security, an unpaid judgment in favor of the City of St. Louis upon a forefeited bail bond. The return pleads an ordinance of the City of St. Louis (which we will set out in our discussion of the case) which, in s.ubstance, forbids the approval as bondsman of any person who shall, at the time he is tendered as such have outstanding against him an unsatisfied judgment rendered on a forfeiture of a bond. The above-mentioned ordinance also provides for the taking of bail and the execution 'and approval of bail bonds, and designates the officers who are thereby authorized to take and approve such bonds.

The above facts, as well as others not pertinent to the points which we find it necessary to discuss are, as stated, well pleaded in the return. No denial is made in the answer of petitioner of the truth of the above facts, or of any of them. In fact, the return sets out a photographic copy of the above-quoted paper offered by petitioner as a bond, and it is admitted by the answer that the photographic copy so pleaded by respondents is a true and correct copy of the identical bond by him tendered. Neither is there any denial made of the allegation of the return that said G-rodsky, tendered as aforesaid by petitioner as his security, had, at the time of such tender of him as bail, outstanding against him an unsatisfied judgment rendered on a bond forfeiture.

Respondents in their return further aver that at the time of the arrest of petitioner there was in force a certain statute of this State which permitted the collection, by any police officer in charge of any police station,' of a fee of fifty cents for each and every bond taken by any police officer for the appearance of any person charged with the violation of any ordinance of the City of St. Louis, It is further averred that petitioner refused to pay the said sum of fifty cents so authorized by the statute above mentioned to be collected for the taking and approval of such bond, and that for this refusal, if for no other reason, respondents were warranted in holding petitioner.

Petitioner in his answer admits the existence of this statute thus pleaded by respondents, which is, to-wit, Section 3459, Revised Statutes 1909, arid which in pertinent parts reads as follows :

“This fund shall be created in the following manner: . . . .all percentages of rewards allowed to members of any police force under the regulations of its department together 'faith a fee of fifty cents for each and every bond taken by any police officer for the. dppearance of any person charged with violating any city ordinance, which said officer is authorised then and there to collect: . . . all of which money herein designated shall.' be paid to the treasurer of said relief association.” (Italics ours). [Laws 1913, p. 192.]

But, petitioner avers that the above section of the statute, relied on by respondents for their second defense, is unconstitutional and void, for that it offends against divers provisions of the Constitution of Missouri, which he designates, as well as against the provisions of the Fourteenth Amendment to the Constitution of the United States.

The answer of petitioner to the return of respondents contained, when filed, the averment that petitioner had no information as to whether or not Brodsky, the person offered by him as a surety, had any bond forfeiture outstanding against him at the time he was tendered as security; as also a general denial of all other allegations made in the return. Upon stipulation filed herein before submission, both of the above allegations of the answer were stricken out, thus- leaving the averments of the return upon these points as the conceded and ultimate facts in the case. ;

The above facts, together with such further facts as we may find it necessary to set out in our discussion of the case, will suffice to make clear the points we find it necessary to decide.

The constitutionality of that part of Section 3459, Revised Statutes 1909, which provides that a fee of fifty cents shall be collected “for each and every bond taken by any police officer for the appearance of any person charged with violating any city ordinance,” is most vigorously assailed by petitioner. But we have many times ruled that before a person may be heard to question the constitutional validity of any law such person must be in such position as regards the law which he attacks, as to be directly affected by it. [State v. Bockstruck, 136 Mo. 335; State v. Bixman, 162 Mo. 1.] While the cases which so hold are not precisely on all-fours with the actual points here presented, they are in all ways analagous.

Therefore, even if we were for argument’s sake to concede that petitioner’s attack upon the constitutionality of the statute, supra, is well taken, we are unable to reach and decide that point in this case. The facts of this case, as those facts are agreed to perforce the state -of the pleadings, preclude any examination into the validity of the law which allows the charge complained of to be exacted. Petitioner never reached this point, for reasons which we point out below and which are manifest; therefore we cannot reach it.

Before petitioner was in' a legal position to complain of the exaction of the sum of fifty cents for taking a bond for his appearance, it was his■ duty to tender a good and sufficient bond, signed by a good and sufficient bondsman. He did not do either of these things. The lack of doing both or either of these things warranted the refusal of the police officer, or so-called “desk sergeant” to take and approve the, alleged bond tendered. Upon these points the showing by the pleadings of the facts is; (a) that the alleged bond tendered for filing to the desk sergeant in charge of the Central District Police Station, was a mere printed skeleton form, whiqh did not set forth in the body thereof the name either of the principal, or the surety, neither was any sum specified as a penalty therein, nor any day, or date for the appearance of the principal, nor any certain court named before which he was bound to appear; (b) that said alleged bond was not signed by a qualified surety, and (c) that it was not approved as a bond, or as a sufficient bond, by the desk sergeant, no indorsement of approval appearing thereon. The above facts are pleaded in the return, and are either admitted, or they are not traversed in the answer of petitioner. Therefore, they stand conceded as the ultimate facts in the case, for the purposes of this proceeding. [In re Breck, 252 Mo. l. c. 319; Ex part Durbin, 102 Mo. 100; Ex parte Brvan, 76 Mo. 253.]

It is manifest that under the definition of' a bail bond, .as given by this court, the-paper tendered was not a bail bond, because it was lacking in certain essential features of such instruments. [State v. Wilson, 265 Mo. l. c. 19.] It is true that petitioner does plead that it was, and long had been, the custom of the desk sergeant in charge of the Central District Police Station to accept blank “scraps of paper” of the sort tendered here as good and sufficient bonds, and upon this custom petitioner bottoms the alleged duty of the desk sergeant to accept as a bond the blank and incomplete paper which was tendered in the instant case. The insistence is bottomed, we assume, upon the theory of waiver. We do not think such a doctrine has any application here. At common law, this desk sergeant, or police officer, could not have taken or approved a bond for petitioner’s appearance to answer the charge against him. Whatever authority this officer had in the premises was contained in and conferred alone by the ordinance. This ordinance was, so to speak, the .power of attorney which gave the officer authority to take bail. [Lamar Township v. Lamar, 261 Mo. 171.] Pursuant to the procedural rule of necessity, petitioner will not be heard to deny knowledge of the terms of this ordinance. Its terms therefore were known to petitioner, as fully as they were known to the officer. The latter could not waive compliance with the terms of this ordinance. While there may possibly be cases, wherein a public officer whose duties and powers are prescribed by statute, or ordinance, may so far waive compliance on the part of others as to create liabilities against himself personally, or against such persons so dealing with him, it would be against public policy to require the municipality for which such officer acts or assumes to/act, or to require his superior officers, either to suffer'1 or be bound by such waivers. For these waivers are, in the last analysis, nothing but plain omissions to perform incumbent duties in the way the written law requires these duties to be performed. Whatever the custom may have been as to accepting blank papers in other cases in lieu of bonds, that custom cannot inure to the benefit of, or aid petitioner here.

Moreover, as already stated, the effect of the pleadings is to admit that the proposed bondsman offered as bail by petitioner was not a competent, or eligible surety. The return of respondents averred facts and pleaded an ordinance of the City of St. Louis, which conclusively show that the surety offered was not sufficient. These allegations of the return were not denied; so as seen above they .stand as admitted facts in the case. The ordinance pleaded and that which confers, we take it, upon police officers the sole authority which such officers have to take and approve bonds for the appearance of persons charged with violations of the ordinance .of the City of St. Louis, reads thus:

“Any person arrested for any violation of an ordinance may he admitted to bail by executing a bond to the city, with sufficient security, to be approved by the mayor, comptroller, city court judge, the marshall or his deputies, the chief of police, police captains or other police officers in charge at the time of any station house, but by the city court judge only when the case is on the docket of the city court, in such an amount at the discretion of the officer as will secure the prisoner’s presence, but not exceeding the sum of five hundred dollars, conditioned that said person appear upon a day named before the city court judge, or at such time as said cause may be continued by motion of' the person arrested or by order of the city court judge, to await his or her- trial upon the charge against him or her, and every bond taken as above shall be forthwith filed with the clerk of said city court, by the officer approving and taking out such bond; provided, that no attorney at law, police officer, constable or his deputy, or any officer of the City of St. Louis, whether elected or appointed, shall be received as security upon said bond; and provided, further, • that no one shall be accepted as bondsman who shall have standing against him an unsatisfied judgment rendered on a forfeiture of bond.” [Sec. 53, Art. 1, Chap. 4, R. C. St. Louis, 1914.]

Under the above ordinance it was the duty of petitioner to tender good and sufficient bail, that is to say, a qualified and financially solvent surety; being, either, one who ivas actually approved by the police officer, or one whose solvency, occupation and record were such as to render his approval by the police officer legally obligatory upon the latter. This, as it stands admitted upon the solemn record here was not done.

It follows that, for the failure of petitioner either to tender a good and sufficient bail bond, or to tender sufficient security thereon, the refusal of the police officer, or desk sergeant in charge of the Central District Police Station, to release petitioner on bond, was justified. And this is so, regardless of whether Section 3459, Revised Statutes 1909, in permitting the collection of a fee of fifty cents for taking bond for the appearance of petitioner, is constitutional or unconstitutional. So, we conclude with the premise with which we began, that petitioner must be in, or must have brqught himself into, a situation wherein he is directly affected by the law which he urges as invalid, before he will be heard to question that law. Since he failed to do this, we will not examine whether such law is good or bad from the standpoint of the Constitution.

■ It results that our writ of habaes corpus was improvidently issued and ought to be quashed and petitioner remanded to the custody of the respondents. Let it be so ordered.

All concur.


author: WILLIAMS, P. J.

text:
    THE STATE v. DELBERT AKERS, Appellant.
    Division Two,
    June 3, 1919.
    1. APPEAL: Piling of Bill of Exceptions: Not Shown by Record. If the transcript of the record proper in a criminal case fails to show that the purported bill of exceptions was signed and filed in the circuit court, the matters contained in the bill are not reviewable on appeal.
    2. VEEDICT: Contradictory: Two Counts Charging Same Offense: Guilty on One: Acquitted on The Other. If the two counts of the information charge identical offenses, a verdict finding defendant guilty as charged in the first and not guilty upon the second, is inconsistent, and will not support a judgment. Defendant cannot be both guilty and not guilty of the crime.
    3. -: -: Discharge. If the contradictory and inconsistent verdict will not support a judgment of conviction, neither will it support one of acquittal. So that where the two counts of the information charge the same offense, and the jury find defendant guilty as charged in the first and acquit him upon the second, defendant is not entitled to be discharged because of the contradictory-verdict, but the judgment will be reversed, and the cause remanded for a new trial. [Overruling State v. Headrick, 179 Mo. 300.]

      4. -: -: Twice in Jeopardy. That section of the Constitution that says no person shall again for the same offense he put in jeopardy “after being once acquitted by a jury” has in contemplation a legal verdict of acquittal. It does not apply to a verdict which is too inconsistent and contradictory to he considered either a verdict of conviction or a verdict of acquittal.
    Appeal from. Dunklin Circuit Court. — Hon. W. S. C. Walker, Judge.
    Reversed and remanded.

      Frank W. McAllister, Attorney-General, and 8. E, Shelley, Assistant Attorney-General, for respondent.
    (1) The verdict of the jury is general in form and sufficient. (2) The judgment of the court is in accordance with the verdict and substantially in form and language approved. Kelly’s Crim. Law & Practice, sec. 450. (3) The record proper contains no record entry of the filing of the bill of exceptions, nor does it contain any other mention of said' bill of exceptions except abstract of the court’s order, that defendant be given ninety days in which to file his bill of exceptions.
   WILLIAMS, P. J.

From a judgment of the Dunklin Circuit Court, sentencing him to two years’ imprisonment for the crime of grand larceny, defendant appeals.

The information was in two counts:

Count one in part charged “that on the 16th day of June, 1917, in the County of Dunklin and State of Missouri, one Delbert Akers, certain neat cattle, to-wit, one red cow and one black Jersey of the value of thirty-five dollars each, of the property and chattels of Lee Cook, then and there being found, then and there did feloniously steal, take and carry away,” etc. Count one further charges one McMahon with being an accessory before the fact.

The second count charges in part “that on the 16th day of June, 1917, in the County of Dunklin and State of Missouri, one Delbert Akers certain neat cattle to-, wit, one red cow and one black Jersey cow of the value of tbirty-five dollars each, of the property and chattels of Lee Cook, did then and there feloniously steal, take and carry away,” etc. Count two further charges said McMahon with being an accessory after the -fact.

A severance was granted and defendant Akers was separately tried. The jury returned the following-verdict :

“We the jury find the defendant Delbert Akers, guilty of Grand Larceny as charged in the first count of the information and assess his punishment at imprisonment in the Penitentiary for a term of two years. And we find him not guilty upon the second count of the information. ’ ’

I. The transcript of the record proper in this case fails to show that the purported bill of exceptions was signed and filed in the trial court. That being true, the matters contained in the bill of exceptions are not before us for review. [State v. George, 221 Mo. 519, l. c. 522.]

II. It will be noted that each count of the information charges appellant with the identical crime. The verdict finds him guilty under the first count and not guilty under the second count.

The verdict is entirely inconsistent, -because the jury could not have legally found what their verdict says they did find. Appellant was either guilty or not guilty of the crime, and could not have been both as found by the jury. We therefore think the verdict is too contradictory to support a judgment of conviction.

The somewhat more difficult question now arises, what shall be done with the appellant? Shall he be ordered discharged or should the cause be remanded for a new trial?

In the case of State v. Headrick, 179 Mo. 300, under a very similar verdict it was held: (1) That the verdiet “is inconsistent and contradictory and cannot be permitted to stand.” (2) That the portion oí the verdict finding the defendant not guilty under one count operated as a bar to a conviction upon the other count, and that, therefore, the defendant was entitled to be discharged, which was accordingly ordered.

"With that portion of the opinion in the Headrick case holding the verdict should not be permitted to stand because contradictory (and therefore the same as no verdict) .we readily agree and have applied the rule thus announced in the case at bar. But with the portion of the above mentioned opinion holding that such a verdict operates as a bar to a further prosecution and authorizes a discharge of the prisoner we are unable to agree.

If the verdict in the Headrick case was too inconsistent to support a judgment of conviction it was likewise too inconsistent to support a judgment of acquittal. As has often been said, “it is a poor rule which does not work both ways.”

It is true that Article 2, Section 23, of the Missouri Constitution, provides that a person shall not again for the same offense be put in jeopardy “after being once acquitted by a jury,” but that constitutional provision undoubtedly has in contemplation a legal verdict of acquittal. The verdict held in review in the Headrick case and likewise the verdict in the case at bar, as has been pointed out above, are too contradictory to be considered a verdict either of conviction or acquittal.

We are therefore of the opinion that the decision in the Headrick case, in so far as it held that the appellant therein was, under the circumstances, entitled to be discharged, should'be overruled.

Since the verdict in the case at bar was not sufficient to sustain either a judgment of conviction or a judgment of acquittal it necessarily follows that the judgment should be reversed and the cause remanded for a new trial.

It is so ordered.

All concur.


author:
WHITE, C.
      PER CURIAM:

text:
    THE STATE v. SAM LEVITT, Appellant.
    Division Two,
    June 3, 1919.
    1. EVIDENCE: Extra-Judicial Statements: Denied in Toto: Hearsay. Statements made by two other persons suspected of the burglary and larceny of goods, to the effect that defendant assisted them in entering the store and removing the property, made in his presence and promptly denied by him in toto, are mere hearsay and are not admissible in evidence over his objection; and if policemen who heard them are permitted to repeat them to the jury, in the absence from the trial of the two suspects, their admission is reversible error.
    2. -: Exception: Objection But No Exception: Renewed and Exception Saved When Testimony Is Repeated. The fact that when the first witness testified to an extra-judicial statement defendant, after objecting to it as hearsay, did not except to an adverse ruling, did not prevent him from objecting to the testimony of a second witness who detailed the same conversation, and upon an adverse ruling saving an exception. Having objected to the testimony of the first witness as hearsay, it was not necessary for him to repeat his objection later, and having excepted to the adverse ruling on his second objection, the admissibility of the statements is preserved for review.
    3. IMPEACHMENT OF DEFENDANT: Term in Workhouse: Cross-Examination. Where the reputation of defendant was not put in issue by himself, it was error for the court to permit the prosecuting attorney to require his sister on cross-examination to state that defendant was in the workhouse during a certain period of the year following the burglary and larceny.
    4. INSTRUCTION: Stolen Goods: Employment By Thieves. It is not error to refuse to give an instruction to acquit defendant if after the goods were stolen the thieves employed him to sell them, where there is no evidence of such employment.
    5. -:-: Recent Possession: Explanation: Converse of State’s: Held, by WHITE, C., with whom WALKER, J., concurs, that a proper instruction, telling the jury that if defendant has given reasonable explanation of his possession of the stolen goods, they should acquit him, should in fairness be given, where there is evidence to support it and it is the converse of an insfruction given for the State.

      Appeal from St. Louis City Circuit Court. —Hon. Victor H. Falkenhainer, Judge.
    Reversed and remanded.

      Thos. B. Harvey for appellant.
    (1) Prejpdicial and reversible error was committed by the court in refusing to give instructions F and ■G, requested by appellant, and telling the jury in effect that if defendant Levitt came into possession of the alleged stolen property after the burglary and larceny then they should acquit him. State v. Jackson, 126 Mo. 525; State v. Maggard, 250 Mo. 341; State v. Rutherford, 152 Mo. 134; 35 Cyc. 152 (V), and numerous citations. (2) The court erroneously admitted in evidence, over the objection of the defendant, statements made by the defendant at the police station while he was under arrest. State v. Walker, 78 Mo. 380; State v. Hill, 134 Mo. 663; State v. Foley, 144 Mo. 600; State v. Swisher, 186 Mo. 10; State v. Etheridge, 188 Mo. 358; State v. Richardson, 194 Mo. 341; State v. Butler, 258 Mo. 436. (3) Error was also committed in admitting in evidence, over the objection of the defendant, statements made by co-defendants, Spector and Blickman, .in the police station, implicating defendant Levitt, as aiding and abetting them in the commission of the burglary and larceny. State v. Richardson, 194 Mo. 339; cases above. (4) It was error to permit, over the objection of the defendant, the assistant circuit attorney in his cross-examination of defendant’s sister, Anna Levitt, to interrogate her about, and to prove by her, that defendant had not been working, and in April, 1917, had been convicted of theft and imprisoned in the workhouse for a term of two months.

      Frank W. McAllister, Attorney-General, and George V. Berry, Assistant Attorney-General, for respondent.
    (1) No error was committed in refusing instructions F and G requested by defendant. Instruction F had been covered by other instructions already given. There was no evidence on which to base instruction Gr, as defendant made no claim to having disposed of the stplen property as the agent of the thieves. ' The motion for a new trial did not call the attention of the trial court specifically to its failure to give these instructions. State v. Katz, 266 Mo. 503; State v. Underwood, 263 Mo. 86; State v. Keller, 263 Mo. 59; State v. Shaffer, 253 Mo. 37; State v. Rasco, 239 Mo. 82; State v. Sykes, 248 Mo. 12; State v. Butler, 247 Mo. 99. (2) Point 2 made by appellant was not saved. The objections were not preserved by specific objections which advised the trial court of the ineompetency of the evidence, nor by timely exceptions to the action of the trial court in overruling the objection. State v. Noland, 111 Mo. 92; State v. Barrington, 198 Mo. 76; Norris v. Railroad, 239 Mo. 711; Collier v. Lead Company, 208 Mo. 56; State .v. Shout, 263 Mo. 69; State v. Kanupka, 247 Mo. 14; State v. Groddard, 162 Mo. 227. (3) If any error was committed in admitting the statements of Spector and Blickman, defendant’s co-indictees, while all were under arrest, it is not here for review. The objections were all general save one, and when that was overruled defendant accepted this ruling and saved no exceptions. State ex rel. v. Diemer, 255 Mo. 336; State v. Castleton, 225 Mo. 201; State v. Hamilton, 263 Mo. 294; State v. Lewis, 264 Mo. 420; State v. Crone, 209 Mo. 316; State v. Murray, 126 Mo. 611; Commonwealth v. Brown, 121 Mass. 69; Underhill on Crim. Evidence, sec. 123; State v. Hubbard, 201 Mo. 639. (4) The cross-examination by the assistant circuit attorney of witness Anna Levitt, by asking if defendant was not in the workhouse on certain dates, was highly improper, but this was cured by the trial court promptly instructing the jury that it was not competent and they should disregard it. Appellant accepted this by asking no further instruction, and by not excepting to the one given. State v. Baker, 264 Mo. 339; State v. Rascoe, 239 Mo. 535; State v. Harvey, 214 Mo. 403; State v. Baker, 209 Mo. 444; State v. Murphy, 201 Mo. 691.
   WHITE, C.

The defendant was brought to trial in the Circuit Court of the City of St. Louis on an information charging- him, together with Harry Spector and Jacob Blickman, with the crime of burglary and larceny, under Section 4528, Revised Statutes 1909. He was granted a severance, was found guilty, and his punishment assessed at five years in the Penitentiary. From that judgment he has appealed to this court.

During the night of September 5, 1916, the store of Abraham Brown, located at 1534 Franklin Avenue in the City of St. Louis, was burglarized ánd a large quantity of pants, hats and other articles of clothing, aggregating $650 in value, were stolen. The next morning about 7:30 o’clock one Jacob Alpert, living at the Metropole Hotel, was called upon by the appellant, who desired to sell him a job lot of pants. Appellant produced a sample - and Alpert agreed to buy the lot for $150, but refused to, pay any money until the pants were delivered. Shortly afterwards the lot of pants was delivered to him at the Metropole Hotel and Alpert paid the appellant $95. Later in the day after appellant, with Spector and Blickman, was arrested and held at the police station, a conversation took place in which the officers were endeavoring- to gain information from the suspects, and the appellant, Levitt, said that he had bought the pants from Spector and Blickman. Spector and Blickman each then stated in the presence of Levitt, Alpert and the officers that Levitt had assisted them in entering the store and removing the property. Levitt denied this, and. reiterated his statement that he had bought the property from Spector and Blickman. This conversation was testified to by Alpert and by police officers O ’Hare and Oertli. Spector and Blickman further stated that Levitt had givep them part of the money received from Alpert. Brown identified some of the pants as those taken from his store.

The only evidence offered by defendant, Levitt, was' the testimony of his two sisters which was offered for the purpose of establishing an alibi. Each of the sisters swore that he was at home on the night of the burglary and until 7:30 the next morning.

I. The appellant assigns error to the ruling of the court in permitting the police officers to testify to the conversation in which Spector and Bliekman stated in their presence that Levitt aided them in committing the burglary and larceny, a statement which Levitt at the time promptly denied. This evidence was admitted by the trial court on the ground that the statements were made in the presence of the defendant. An accusatory statement made by another person to or in the presence of a defendant charged with a crime is admitted when the silence of the accused under the circumstances is a tacit confession of the truth of the statement. [State v. Walker, 78 Mo. l. c. 388; 1 G-reenleaf, sec. 197-8; State v. Butler, 258 Mo. 1. c. 436.] Such incriminating evidence is sometimes received where the defendant denies only part, or qualifies his denial, or by his silence acquiesces in- what is said. Here, however, the defendant stoutly denied in toto the statements máde. In such cases the rule is general that evidence of that character is inadmissible, because it is hearsay. [16 C. J. p. 634, and cases cited in note.] The rule has been so applied in this State. Such evidence was held inadmissible because the defendant denied the statements and therefore did not acquiesce. [State v. Richardson, 194 Mo. 326, l. c. 339.] Spector and Bliekman were not witnesses in .the case and what they said about the defendant’s connection with the crime was brought before the jury against the defendant as pure hearsay with no opportunity to crpss-examine.

Respondent claims that the point was not saved by proper objection and exception to the ruling 0f the court in admitting it, and therefore is not available to the defendant.

When Alpert was on the stand he was asked what statements Speetor and Blickman made, in regard to taking the pants, in the presence of the defendant. Defendant objected because the evidence was entirely, hearsay. The objection was overruled and defendant saved no exception at that time. Later, when Officer 0 ’Hare was sworn he was asked a similar question and defendant' objected to what was said between the parties. The court overruled the objection, and defendant duly excepted. 0 ’Hare then related the conversation, including statements by Speetor and Blickman to the effect that defendant was present and took part in the commission of the crime. After having made the objection and having excepted to the introduction of the conversation, it was not necessary for the defendant to repeat his objection and exception later, or after the evidence was in. The fact that the defendant, while objecting to the testimony of a prior witness regarding the same conversation, failed to save an exception to the ruling of the court in admitting it, would not prevent his taking advantage of the error in admitting the testimony of this particular witness O’Hare.

When Anna Levitt, sister of defendant, was on the stand the prosecuting attorney in cross-examination made her say that her brother, the defendant, was in the workhouse during a certain period of the year 1917. The reputation of Levitt was not P11^ in issue by himself and therefore it was error for the prosecution to attack his reputation in that manner. [State v. Conway, 241 Mo. l. c. 279-89; State v. Wellman, 253 Mo. l. c. 315.] The Attorney-General admits the testimony was improper, but claims it was cured because the trial court instructed the jury it was not competent. The record does not show that any such instruction was given as to this particular testimony. On the contrary, the trial court ruled it proper because it was cross-examination.

III. The court refused instruction “F” asked by defendant, as follows:

“The court instructs the jury that if you find and believe from the evidence that the defendant in this case has given reasonable explanation of his possession of the property charged to have been stolen and afterwards found in his possession, then yon should find the defendant not guilty. ’ ’

The court gave on behalf of the State the usual instruction on the possession of stolen goods and the presumption arising from such possession, concluding the instruction with these words:

“And unless such presumption is overcome to your reasonable satisfaction by evidence in the ease explaining such possession in a manner consistent with defendant’s innocence, you should find the defendant, as the evidence may show, guilty.”

The instruction asked by defendant was the converse of that proposition and in fairness to the defendant it should have been given. [State v. Rutherford, 152 Mo. l. c. 125; State v. Jackson, 126 Mo. 521.] There was testimony which enitled the defendant to this instruction. It developed in the evidence of Alpert and the officers that the defendant claimed at the time of his arrest and afterwards that he had bought the goods from Spector and Blickman and sold them to Alpert.

IY. Appellant complains of the refusal of the court to give instruction. “G” offered by him to the effect that, if defendant did not actually aid and assist in the commission of the crime, but that the criminals employed him to dispose of the stolen goods after the crime was committed and, collect the proceeds of such sale, they should find for the defendant. There was no evidence of any such employment and the instruction was properly refused.

For the errors mentioned the judgment is reversed and the cause remanded.

Boy, C., absent.

PER CURIAM:

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

Walker, J,, concurs; Williams, P. J., and Paris, J., concur in Pars. 1, II and IV, and the result.


text:
    THE STATE v. CREDE LONG, Appellant.
    Division Two,
    June 3, 1919.
    1. APPEAL: Criminal Case: No Counsel: Duty of Court. Notwithstanding an appellant convicted of a felony is not represented hy counsel in the Supreme Court, the court will examine the record for error with the identical care enjoined in cases wherein counsel have appeared for defendant.
    2. EIGHTS OF ACCUSED: Duty of Court: Information: Technical Errors. ■ The court is required to so safeguard the rights oj: one accused of a crime that (1) he may be so fully advised of the charge against him that he may properly and intelligently prepare his defense and so be able to defend himself and (2) that he may run no risk of a second prosecution and conviction, for the identical offense of which he is charged.
    3. INFORMATION: Larceny: Ownership: Corporation: State University. Where the information charges the defendant with the larceny of certain hogs, the property of “The University of Missouri, a corporation,” a conviction will stand, although there is no proof that “The University of Missouri” is a corporation, and the name of the public corporation created by statute is “The Board of Curators of the University of Missouri.”
    4. CORPORATION: Public: Judicial Notice. The courts take judicial notice of all public corporations created by statute, and consequently that the corporation by which the University of Missouri is controlled is styled “The Curators of the University of Missouri.”
    5. -: -: -: No Proof. A failure to prove that.the corporation named in the information charging that defendant stole hogs belonging to “The University of Missouri, a corporation” is a corporation, does not mislead defendant or subject him to a subsequent prosecution or invalidate his conviction, for the courts take judicial notice that there is a public corporation created by statute and styled “The Curators of the University of Missouri.”
    6. -: Allegata and Probata: Variance. Where the charge is that defendant stole property of ‘-‘The University of Missouri, a corporation,” and the proof is (aided by judicial notice) that the stolen property was owned by a public corporation styled “The Curators of the University of Missouri,” there is no such variance between the allegation and proof as will work a reversal of a judgment of conviction, since the institution is popularly known and is legislatively recognized as “The University of Missouri.”
    7. VARIANCE: In Name. A variance in names between the charge and proof is not material, unless it appears to the court that the jury was misled by it or some substantial injury is done to the ,accused.
    8. -: Should be Raised at Trial. A question of variance between the charge and proof should be raised upon the trial and unless the trial court is afforded an opportunity to pass upon it, the" appellate court will not consider it.
    9. -: Information: Ownership: Name of Corporation. It is sufficient in charging larceny from a corporation to allege the name by which the corporation is generally known, if it otherwise sufficiently appears beyond question what corporation is intended, although the name alleged is not its correct corporate name.
    10. -: --: -: -: Proof. And if it sufficiently appears just what corporation is intended by the charge, and no possibility exists of harmfully affecting the rights of an accused to a fair trial and to be so far informed of the charge against him as to enable him intelligently to prepare his defense and defend himself, proof of ownership of the stolen property in a corporation commonly known by the name used in the information will sustain a conviction.
    Appeal from Boone Circuit Court. — Hon. David H. Harris, Judge.
    Affirmed.

      J. G. Gillespy and E. G. Anderson for appellant.

      Frank W. McAllister, Attorney-General, and Tilomas J. Cole, Special Assistant Attorney-General, for respondent.
    (1) The information follows the approved forms and, in its description of the hogs alleged to Have been -stolen, was more specific than was necessary. State v. Swearengin, 234 Mo. 549; State v. Dewitt, 152 Mo. 84; Kelley’s Crim. Law, sec. 642. (2) But the information alleges, and the proof was, that the alleged stolen hogs were the property of the “University of Missouri.” There was no proof that the University of Missouri is a cOTporation. The University, however, was incorporated by statute and the corporate name of the University is, “The Curators of the University of Missouri.” Sec. 11097, R. S. 1909. (3) Courts take judicial notice of the statutes. State ex rel. v. Roach, 258 Mo. 541; State v. Case, 53 Mo. 246; Gibson v. Railroad, 225 Mo. 483; Davis v. McColl, 179 Mo. App. 204; State v. Pope, 110 Mo. App. 520. (4) The corporation “The Curators of the University of Missouri,” is commonly known by the name “The University of Missouri.” Laws 1915, p. 70, secs. 8 and 9; Laws 1913, p. 63, secs. 8 and 8a; Laws 1911, p. 59, sec. 9; Laws 1909, p. 54, sec. 8. (5) "Proof of ownership in a corporation, in the name by which it is commonly called, is sufficient to sustain a conviction of larceny. Jackson v. State, 96 Ga. 165; Griffith v. State, 163 Ind. 555'; 25 Cyc. 125. (6) It is sufficient to allege the name by which a corporation is generally known, though that is not its correct name, where it sufficiently appears what corporation is intended. State v. Rollo, 3 Penne. (Del.) 421; Rogers v. State, 90 Ga. 463; Jackson v. State, 76 Ga. 551; People v. Ferguson, 119 Mich. 373. (7) Instruction one in defining'the offense of grand larceny as herein charged, required the jury to find that the hogs were the property of the “University of Missouri, a corporation,” hut did not require them to find that said university was a Missouri corporation, before they could find the defendant guilty. If an information state the name of the owner of the property it must he proved as laid. Cohen v. People, 5 Parker (N. Y.), Crim. Cases, 330; State v. Weeks, 30 Me. 182; Commonwealth v. Wade, 34 Mass. (17 Pick.)-395; Collier v. State, 4 Tex. App. 12; Rose v. State, 1 Texas App. 400. In other' respects this instruction was complete and proper. Sec. 4535, R. S. 1909; State v. Moore, 101 Mo. 323, 331; Wein v. State, 14 Mo. 125, 128; Pattison on Instructions in Crim. Causes, p. 436. (8) Leaving out of consideration the fact that it was not proven that the “University of Missouri” was a corporation, the evidence was sufficient to sustain a conviction. State v. Underwood, 2'63 Mo. 685; State v. Concelia, 250 Mo.' 425.
   FARIS, J.

Defendant was convicted in the Circuit Court of Boone County for the larceny of certain hogs, the property, as the information charged, of ‘ The University of Missouri, a corporation.” Pursuant to verdict, he was sentenced to imprisonment in the State Penitentiary for a term of two years, and in the conventional way has appealed.

The hogs alleged to have been stolen were eight in number, were of the value of about $170, and were a part' of a number of hogs kept by The University of Missouri at what is called in the record' the “serum plant” for use in the process of producing hog cholera' serum. Defendant, in June, 1918, sold and delivered these hogs for about $152 to one T. H. Armstrong, in whose possession they were subsequently found and positively identified as the property of “The University of Missouri.” On being arrested defendant admitted that he had gotten the hogs from the serum plant, that he had kept them for a short time 'at the fair grounds, and had sold and delivered them to said Armstrong. No evidence of any soil was offered by defendant upon the trial; nor did he testify in his own behalf. But at the close of 'the evidence offered by the State, he contented himself with demurring thereto for its alleged insufficiency.

The instructions given by the court upon the trial followed the allegations of the information as to the ownership of the hogs alleged to have been stolen, and required the jury to find, as a condition precedent to conviction, that these hogs were the property of “The University of Missouri, a corporation.’.’ In all other respects the instructions given by the court nisi, both for the State and for the defendant, seem to have been in the usual and approved form.

In the course of the opinion it will become necessary to state other facts, but as these will, for clearness’ sake, be more apposite if stated in connection with the facts up for judgment, we presently reserve a statement of them.

Defendant is not represented ' by counsel in this court, but as our duty is under the statute (See. 5312, R. S. 1909) we have examined the record for error with the identical care enjoined in cases wherein counsel have appeared for defendant. So doing, the only points debatable and which seem to be deserving of attention are, (a) Was the information sufficient? (b) - Was there sufficient technical proof of guilt? and (c) Was there error in instruction one given by the court, sua sponte, for the State?

In the last analysis,' each of these questions is identical; for each turns at last upon the question whether we may take judicial notice of two facts, (1) that the chief public educational institution of the State of Missouri is commonly known, both as to the institution itself and the controlling body corporate thereof, as “The University of Missouri,” and (2) whether it is a corporation. If we may so notice the above two facts, touching which there was in the record no proof whatever, then' it follows that the errors are not reversible, for it is plain that no harm accrued to defendant for ,the errors and omissions in the information, in the evidence and in instruction one. We are of the view that we may thus notice both of these vexing questions.

We are of course required so to safeguard the rights of defendant as that (a) he may be so far fully-advised of the charge against him that he may properly and intelligently prepare his defense, and so be able fully to defend himself, and (b) that he may run no risk of a second prosebution and conviction for the identical offense confronting ns, and of which he was convicted nisi. So much and no more is defendant entitled to under the Constitution. [Sections 22 and 23, Article 2, Constitution.] If, then, defendant was not misled upon his trial, if he was able — the errors and omissions above referred to notwithstanding — to properly and intelligently prepare his defense, if the trial jury was not misled, and if there is in such errors and omissions nothing to mislead the court should defendant ujion another prosecution plead autrefois convict, we ought to affirm this case, for the' points before us are bottomed upon the very baldest technicality.

The facts upon which defendant’s above several contentions are founded arise upon the record thus: The information charged defendant with stealing certain hogs belonging to “The University of Missouri, a corporation;” that is to say, the ownership of the stolen property was laid in “The University of Missouri, a corporation.” -The proof followed this allegation, partially at least, and showed the ownership of the hogs in question to be in “ The University of Missouri. ’ ’ Instruction one, given by the court, of its own motion, likewise followed the allegations of the information and required the jury to find that the hogs alleged to have been stolen by defendant were the property of “The University of Missouri, a corporation.” It was not shown by the testimony that the University of Missouri is a corporation; nor was there proof adduced showing the true name and style of the corporate body which manages and controls the educational institution known as “The University of Missouri.”

We judicially notice, however, that the corporation by which the University of Missouri is controlled is styled “The Curators of the University of Missouri.” We notice this because such corporation is a public one, created by a public statute (Sec. 11097, R. S. 1909), of which, and of all such statutes, we are required to take judicial notice.

Initially, the point arises in the case as one of a failure of proof, simply; because the allegation of the information is that the University of Missouri is a corporation, while the proof fails to show that it is such corporation. We escape this failure of the proof by taking judicial notice, absent proof, of the public statute which created the corporation known and styled “The Curators of the University of Missouri.” Having thus, by eking out lack of affirmative evidence by judicial notice, gotten over the initial point of a failure of proof, we are. confronted by the contention, in effect, of defendant’s learned counsel, that since there is no such corporation known to the law as “The University of Missouri,” a conviction for the larceny of hogs from “The University of Missouri” cannot be sustained. In other words, the taking of judicial notice of the fact that the Board of Curators which manages the University of Missouri is a public corporation styled by statute “The Curators of the University of Missouri” brings about a serious variance between allegata and probanda, in that the charge was of a theft from “The University of Missouri, a corporation,” while the proof is — when thus aided by judicial notice — that the stolen property was owned by “The Curators of the University of Missouri, a corporation.”

Upon the law applicable to the above facts and contentions, it is permitted to us to taire either one or both of two views; since haying taken judicial notice of the fact of existence as well as of the true, statutory name and style of the corporation, the sole question left becomes one merely of variance. We may hold that since we may judicially notice that the chief educational institution of this State is popularly and universally called “The University of Missouri,” and that the management and control of that institution is popularly and universally (except in the most formal documents) known by the name of and styled “The University of Missouri,” and since there is legislative recognition of this fact, for appropriations by the Legislature of money for the maintenance of the institution are made to, and in the name of the institution, and not to, or in the name of the Board of Curators under its formal, corporate style (cf. Laws 1909, p. 54; Laws 1911, p. 50; Laws 1913, p. 63), the variance was in nowise hurtful to defendant. For, says Wharton upon the matter of variances in his excellent work on criminal evidence: “The modern rule is that a variance in names is not now regarded as material, unless it appears to the court that the jury was misled by it, or some substantial injury is done to the accused, such as that by reason thereof he was unable intelligently to make his defense, or he was exposed to the danger of a second trial on the same charge.” [1 Wharton, Crim. Ev. p. 288.]

Moreover, we are permitted to take the view that since the ultimate force and effect of the facts on which defendant bottoms his contentions are to make of such contentions a simple variance^ between the charge and the proof, he ought, as the statute provides and requires (Sec. 5114, R. S. 1909), to have raised the question of variance upon the trial, and thus afforded to the learned trial court an opportunity to pass upon it.

But to none of the evidence whereon the alleged error is bottomed was objection made upon the trial. In fact, so far from objecting was defendant, that he brought out upon cross-examination the additional facts not theretofore shown by the State, that there is but one University of Missouri, that it is an educational institution located at Columbia, Boone County, and that it is supported by the State of Missouri and the United States Government.

Section 5114, supra, does not mean that the judgment of the trial court upon the question of a variance vel non is conclusive, or that such ruling of the trial court is not subject to review by the appellate courts. It simply means that unless the court nisi is upon the trial given an opportunity, in one of the conventional ways, to rule on the alleged question of .a variance, we will not consider that question here. [State v. Ballard, 104 Mo. 634.] In other words, among other requisites it takes the ruling of the court nisi upon the question of variance to preserve such question for appellate review. If the trial court shall rule erroneously upon it, and to the hurt of the accused, we are allowed to examine the question here upon appeal. Not only was there a failure to properly preserve the point of variance, but the right of defendant to a fair trial was in nowise infringed, as a mere statement of the several points of contention discloses upon its face. The testimony shows defendant’s guilt beyond any doubt or question. The fact that the well-known name of the educational institution was used in the information,, in the evidence and in the instructions, instead of the technical, statutory. style of the corporate board which controls this institution, in no way hurt defendant or militated against his making an intelligent defense. Neither was it possible that such mistake could have misled in any way the jury which tried defendant.

We concede the existence of the well-settled and time-honored rule that an indictment or an information for larceny must set out the name of the owner of the property alleged to have been stolen, and that the proof must follow in this behalf the charge in the indictment or information. If there be a failure in these behalves, it is well-settled that a fatal variance is created and the errors are reversible. But, it is sufficient to allege the name by which a corporation is generally known, although the name alleged is not the corporation’s correct name, if it otherwise sufficiently appears beyond question what corporation is intended. [People v. Ferguson, 119 Mich. 373; State v. Rollo. 3 Penne. (Del.) 421; Rogers v. State, 90 Ga. 403; 25 Cyc. 125.] Also, it has been held (under circumstances wherein it sufficiently appears just what corporation is intended, and where no possibility exists of harmfully affecting the right of defendant to a fair trial and to be so far informed of the charge against him as to enable him intelligently to prepare his defense and defend himself) that proof of ownership of stolen property in a corporation in the name by which such corporation is commonly called and known is sufficient. [See cases cited last supra.] Therefore, since the guilt of defendant upon the evidence in this record is conclusive, we are not — for the reasons stated above — disposed to reverse this case for such a bald -and innocuous technicality.

Finding no error of which the facts warrant defendant in complaining, we affirm the judgment. Let this be ordered.

All concur...