text:
    THE STATE v. CHARLES F. KULLMAN, Appellant.
    Division Two,
    February 12, 1910.
    1. LIMITATION: Absence From State. The two latter clauses in the Statute of Limitations (Sec. 2421, R. S. 1899) being joined by the disjunctive “or,” are separate and independent grounds for the suspension of the statute, and the evidence in this case is sufficient to support the verdict of the jury upon either ground, namely, that he was “not an inhabitant of the State,” or that he was “not usually resident within the State” after the proof of any one of the offenses charged.
    2. INSTRUCTION: All Law of Case. An “exception to the failure of the court to instruct on all the law of the case” is insufficient to raise the point that an instruction on circumstantial evidence should have been given.
    3. REMARKS OF ATTORNEY: Absence From State. A remark by the prosecuting attorney that “if defendant had been in tbe State of Missouri he could easily have brought witnesses upon the stand to prove he was in the State,” where the issue was whether the limitation of the statute had been suspended by his absence, was not prejudicial to defendant, but legitimate argument; but if it was objectionable, the trial court cannot be convicted of error if the only request of defendant was complied with, namely, to withdraw it, there being no request for rebuke, etc.
    Appeal from Benton Circuit Court. — Eon. G. A. Benton, Judge.
    Affirmed.

      W. 8. Jackson and T. G. Oiven for appellant.
    (1) The prosecution in this case was barred by sec. 2419, R. S. 1899. The information was not filed until over six years after the alleged commission of the offense. The State sought to evade the bar of the statute by pleading its suspension under the terms of sec. 2421, R. S. 1899. (2) The peremptory instructions offered by defendant at the close of the State’s case should have been given. No evidence was offered to show that he had ever abandoned his residence in this state, nor was any offered to show that he had acquired one elsewhere. This statute is to be liberally construed in favor of defendant. Wharton, Or. Pr. and PI. sec. 316. How can it be said that the state, under such evidence, was entitled to go to the jury? If a defendant is seen by several persons in a foreign state and is not seen at home by one or two others, does that overcome the presumption that his home continues where it is once shown to be until the contrary is proven by evidence sufficient to overcome such presumption? State v. Snyder, 182 Mo. 517; State v. Sanders, 106 Mo. 193. (3) There was no direct evidence offered by the state on the question of the residence and habitation of defendant in another State; it was all circumstantial, and this being so, the case, upon this issue, stands upon the same ground as though this were the sole issue in the case, and the court committed error in not instructing the jury on the law concerning circumstantial evidence. State v. Woolard, 111 Mo. 248; State v. Daniel, 131 Mo. 380; State v. Moxley, 102 Mo. 374.

      Elliott W. Major, Attorney-General, and Chas. G. Revelle, Assistant Attorney-General, for the State.
    (1) The competency of this evidence is not open to doubt, the sole question being one of its weight, and that, under proper instructions, was one for the jury. Hall v. Sclioenecke, 128 Mo. 661; Lankford v. Gebhart, 130 Mo. 621; Pope v. Fleuge, 140 Mo. 399; State v. Snyder, 182 Mo. 503. This testimony standing un-contradicted, and there being no facts or circumstances in evidence tending in any measure to affect or overcome the conclusion that it warrants, is amply sufficient to sustain the finding of the jury. State v. Snyder, 182 Mo. 517. The question of residence was one of fact, and having been submitted to the jury under appropriate instructions, and there being substantial evidence to support its findings, the verdict will not be disturbed on appeal. Lankfort v. Gebhart, 130 Mo. 638; State v. Miller, 182 Mo. 386; State v. Kosky, 191 Mo. 16; State v. Wigger, 196 Mo. 97. (2) Defendant complains that the court failed to instruct the jury on the law relating to circumstantial evidence, but reference to the record discloses that he wholly failed to request such an instruction, or to direct, in any manner, the attention of the court to this feature, and cannot, therefore, urge the objection in this court. State v. Espenschied, 212 Mo. 222; State v. Bond, 191 Mo. 555. Besides, the point is no more definite in the motion for a new trial, and is entirely too indefinite to be available in this court. Besides this, upon the evidence disclosed by this record, it was not error to refuse an instruction on circumstantial evidence.
   BURGESS, J.

By information, the prosecuting attorney of Benton county charged, the defendant, in the first count of said information, with the crime of forgery, and in the second count, with uttering the forged instrument, i. e., a note, upon which it is alleged that the name of one of the parties, Claus Bruns, had been forged. Both counts refer to the same instrument. The crime is charged as being committed in January, 1901, but no information was filed until 1907. The amended information, upon which conviction was had, was not filed until the year 1908. This information charges, in addition to the formal charges of the. two respective crimes, “that from the 15th day of February, 1901, until the 6th day of November, 1907, the said Charles F. Kullman has at no time been an inhabitant of or usually resident within the State of Missouri.”

The defendant duly entered his plea of not guilty to said amended information, and npon trial before a .jury was convicted of tbe crime of forgery as charged in tbe first count of tbe information, but was acquitted of tbe charge in tbe second count of said information. Punishment was fixed at three years in tbe penitentiary. Upon which verdict of tbe jury so fixing tbe punishment, sentence and judgment was duly entered. In due course, and in proper order, tbe cause reaches its, upon tbe appeal of the defendant.

In their brief, counsel for defendant urge but three things as grounds for reversal: (1) Failure of proof on the part of the State to show that the defendant had not been “an inhabitant of or usually resident within this State;” (2) failure of the court to give an instruction on circumstantial evidence, and '(3) improper remarks of the prosecuting attorney in the course of his argument. Of these questions in their order.

Upon the first- insistence of counsel a review of the evidence is required. By Lon Kreisel, who lived in Benton county, it was shown that in the year 1901 he was in the State of Washington; that he arrived at Hoquiam, State of Washington, the latter part of March, 1901, and that whilst there he was intimately acquainted with the defendant, and saw him often, until the 9th day of July, 1901, when defendant disappeared; that he saAv him no more until after he was arrested and brought back to Missouri, in November, 1907.

By Charles Fitzinger, another witness who was at Hoquiam, Washington, in 1901, it was shown that he saw the defendant at that town for some time, the length of time not being stated, but evidently about the time mentioned by the preceding witness. This witness also testifies to defendant’s disappearance in the State of Washington, and that it was thought he had been drowned.

By the deputy sheriff, Mr. Hart, it was shown that after the defendant was brought back to Missouri he had a talk with him, and that defendant said he was in Oregon when apprehended; that defendant said he had been in Alaska about a year during the time he was absent from Missouri, and that he had also been-in California, Washington and Oregon, but no time was given as to the stay in the several states other than the Territory of Alaska.

From another witness, Claus Bruns, it was made to appear that he was raised in the same neighborhood with Kullman, in Benton county, and that his name to the note was a forgery. In fact, whilst the record does not clearly so speak, it is evident therefrom that the defendant was born and raised in Benton county, and lived there up to the early part of February, 1901.

Henry P. Lay, an attorney at law, testified that, by reason of certain litigation, he and his associates had made diligent search for defendant for about two years prior to his apprehension in November, 1907, and that it was through his efforts that the defendant was located and apprehended in the State of Oregon.

By W. T. Meyers it was shown that defendant spoke to him of being at Portland, Oregon, for a time, but did not say how long.

Such is the State’s evidence upon the absence of the defendant from the State of Missouri.

Counsel for defendant urge that this is an insufficient showing under section 2421, Revised Statutes 1899. This section suspends the Statute of Limitations in criminal cases for three reasons: (1) Where the party is a fugitive from justice; (2) for such period of time as the party is not an inhabitant of the State, and (3) for such period of time as the party is not usually resident within this State after the commission of the offense. It will be noticed that the disjunctive “or” is used between the two latter clauses of the statute; so that these two clauses are separate and independent grounds for the suspension of the Statute of Limitations. This distinction is clearly drawn by Gantt, P. J., in the case of State v. Snyder, 182 Mo. l. c. 515.

We are not impressed with the contention of counsel that the evidence introduced was not sufficient upon which to submit to the jury either of the two questions suggested in the two latter clauses of said section of the statute.

Whilst it might not be said that the evidence showed the defendant to be a fugitive from justice, because no criminal charge had been preferred against him at the time he left the State, yet it does appear that he did leave the State and was seen and recognized in the State of Washington in the spring and summer of the same year, and in July of that year he disappeared, and it was thought that he was drowned. It does appear from his own admission that he was resident in the Territory of Alaska for at least a year, and that he lived in three western States during the time of his absence, and it does appear that from one of these western States he came at the time of his apprehension and arrest.

It is urged that this evidence, under the case of State v. Snyder, supra, was not sufficient to authorize the submission of this question to the jury; but we are not so impressed with the holding in that case. In other words, there is nothing in that case which would preclude the case in point from being submitted to the jury on the particular question now in hand. The contention, therefore, that there was not sufficient evidence to authorize the jury to find that the defendant was not an inhabitant of, or resident within this State, for a sufficient length of time to take the case out of the Statute of Limitations, will be ruled against the defendant.

It would appear from the record that all of the witnesses were extremely friendly to the defendant, and it must be further said that if the court committed error at all in rulings upon the question involved in this proposition, the error was in favor of the defendant.

It is next contended that an instruction on circumstantial evidence should have been given. Not on the theory that the evidence tending to show that the crime had been committed was circumstantial, for this fact was positively shown by witness Claus Bruns, whose name was forged to the note, but who appeared to be friendly to defendant — in fact he testified to his friendly feelings — but on the theory that the evidence was circumstantial as to -defendant’s absence from Missouri and his residence elsewhere. Two answers can be made to this contention. First, the evidence, so far as it went, was not strictly circumstantial, for witnesses testified to admissions made by defendant and to facts within their own knowledge, all tending to show a change of residence, and all tending to show that the defendant was not resident in this State from February, 1901, to November, 1907. But even granting the contention of defendant, which we do not do, yet the only point made in the record which would go to this question is thus stated: “The defendant also excepted to the failure of the court to instruct the jury upon all the law of the case.” The motion for new trial makes the point no more definite than the objection above quoted. This is insufficient to raise the question here. The exact point was held in judgment in the recent case of State v. Espenschied, 212 Mo. l. c. 223, and that case, with the authorities therein cited, must control here.

We next reach the charge made as to improper remarks of counsel. The chief grievance against the remarks made by the prosecuting attorney is leveled at this language used by said officer: “If Charlie Kull-man had been in the State of Missouri he could easily have brought witnesses upon the stand to prove he was in the State of Missouri.” This remark was objected to, and the court thereupon said, “That will be withdrawn and excluded from the jury.” We are impressed that the trial court gave the defendant more than he was entitled to in sustaining this objection. [State y. Emory, 79 Mo. l. c. 463; State v. Parker, 172 Mo. l. c. 204.] It might be said that such remarks were legitimate argument under the facts of this case. Be that as it may, the defendant only objected to the statement, and the court promptly withdrew it. If there was wrong, the court promptly cured it. [State v. Barrington, 198 Mo. l. c. 92.] The defendant did not ask that the State’s counsel be reprimanded for the remark, but rested upon the simple objection, which was promptly sustained. We do not mean to say that the court should have reprimanded counsel for this remark, but we are simply stating the attitude of the counsel for the defendant. The trial court cannot be convicted of error when there is done all that the defendant asks.

The foregoing remark is as serious, and more so, than any other allusion to defendant made in the discussion of the case nisi. It will serve no good purpose to go further. The crime of forgery in the third degree was conclusively proven, and that, too, by a friendly witness.

In our judgment, the evidence- shows facts upon which the suspension of the Statute of Limitations could be fairly found by the jury. The instructions in the case are as fair as the defendant could ask. The court’s rulings throughout were more favorable to defendant than the law demands. The entire record would indicate that the witnesses were friendly, or at least none were hostile, to defendant. Upon the record, the trial appears to be a fair one, and the judgment should be permitted to stand. The judgment and sentence are, therefore, affirmed.

All concur.


source: Caselaw Access Project

author: GANTT, P. J.

license: Public Domain

text:
    THE STATE v. JOHN COLLINS, Plaintiff in Error.
    Division Two,
    February 12, 1910.
    1. JUDGMENT: Correction: Nunc Pro Tunc. The circuit court has authority to correct a record entry of a judgment by a nunc pro tunc order, although the case may be at the time pending in the Supreme Court on writ of error. Where the information charged defendant of larceny from a person in the nighttime, and he.was convicted, and the clerk in entering the judgment, by inadvertence or misprision, wrote the word “party” instead of “person,” it was proper for the court, at a subsequent term, to correct the entry by making it recite that defendant was convicted of the offense of “larceny from the person in the nighttime;” and the record entries and information afforded ample basis for the nunc pro tunc order.
    2. PAROLE: Acceptance: Constitutionality of Statute: Habeas Corpus. By applying for and accepting the terms of a parole, defendant is precluded from assailing the validity of the statute (.Sec. 2818, B. S. 1899) which authorizes the court, or judge thereof in vacation, to terminate the parole at any time, without notice to defendant, by merely directing the clerk to make out and deliver to the sheriff or to other proper person a certified copy of the sentence, etc. He cannot contend that the statute is invalid because it authorizes his rearrest without warrant or other process; for, if it is invalid for that reason, his parole was unauthorized, and the judgment is in full force.
    3. -: --: -: Arrest of Innocent Party. The contention that the officer under said statute might arrest the wrong man and thus deprive an innocent person of the right to show that he is not the convict described in the warrant, is not for consideration where the right party has been arrested; no doubt exists that an innocent party thus arrested could unquestionably invoke the writ of habeas corpus.

    Error to St. Louis City Circuit Court. — Hon. Chas. C Allen, Judge.
    Affirmed.

      Wm. E. Fish for plaintiff in error.
    Section 2818 of the parole law is unconstitutional, as it nowhere provides that any warrant, information or other legal process shall issue for the arrest of the paroled person, and is in direct conflict with the Fourteenth Amendment of the Federal Constitution and sec. 30 of art. 2 of the Constitution of Missouri, and conflicts with secs. 2441 and 2447, R. S. 1899. The act is had because it nowhere provides that the arrested paroled person shall have a hearing, his day in court, or a chance to defend himself against any accusation which has been brought against him. The law must require due notice and give the right of a hearing and a chance to be heard. McGegee on Due Process of Law, p. 82; Stuart v. Palmer, 74 N. T. 183; Philadelphia v. Miller, 49 Pa. St. 440. The due-process-of-law clause, in both the Federal and State Constitutions, is a check on the legislative as well as the executive and judicial departments. 3 Words and Phrases, 2230: It is essential to due process of law that there there shall not only be notice of the time and place for the hearing, but, what is more important, that there shall be a tribunal clothed with power, by methods and rules prescribed by law, to hear and determine a question involved. Charles v. City of Marion, 98 Fed. 166; Moss v. Whitpel, 108 Fed. 579; 3 Words and Phrases, 2243; Dartmouth College v. Woodward, 4 Wheat. (17 U. S.) 518, 581; Quimby v. Hazens, 4 Vt. 132; Kennedy’s Case, 135 Mass. 51. Identity is only one element in a case of this kind, and the violation of the parole is just as important an element and needs just as much consideration as that relating to the identity. If a hearing is necessary in one case, it is certainly necessary in the other. People v. Moore, 62 Mich. 496; People v. Cummings, 88 Mich. 249; State ex rel. v. Wolfer, 53 Minn. 135.

      Elliott W. Major, Attorney-General, and Chas. G. Bevclle, Assistant Attorney-General, for the State.
    (1) The error of the clerk in failing to make the record entry of the judgment conform to the actual facts and proceedings in no manner affected or impaired the validity of the judgment. Sec. 2660', E. S. 1899. (2) On October 23rd, the circuit court, upon motion, entered a nunc pro tunc order making the record conform to the truth, and entering the judgment actually rendered, which the clerk through inadvertence or misprision had failed to- correctly record. The question of the power and authority of the circuit court to correct its record by nunc pro tunc entries has been many times before this court, and the rule is now permanently established that, notwithstanding the case is pending in this court on appeal, or by writ of error, and the trial court has lost jurisdiction of the cause, it still retains full power and jurisdiction over its own records, and by entries nunc pro tunc, based upon proper evidence, may cause the same to speak the truth, when by inadvertence or misprision of the clerk they fail to do so. In such cases the court is fully empowered to enter a nunc pro time order and to correct or amend the judgment entry theretofore made. State v. Gordon, 196 Mo. 196; DeKalb County v. ITix-on, 44 Mo. 342; State v. Eaton, 191 Mo. 154. (3) The record entries in this case afford ample basis for the nunc pro tunc order. Eoss v. Eailroad, 141 Mo. 390'; Eeed v. Colp, 213 Mo. 586; Darrier v. Darrier, 158 Mo. 234; State v. Gordon, supra. The records in this case, consisting of the information charging larceny from the person, the plea of guilty as charged in the information, and the clerk’s record of the judgment in connection with the plea, which upon its face discloses mistake, fully warranted the court in making the nunc pro tunc order. (4) The judgment as corrected is in approved form, and contains all the recitals essential to a valid judgment. State v. Williams, 191 Mo. 214. (5) Tlie information is based upon Seo. 1901, R. S. 1899, and is all that good pleading requires. State v. DeWitt, 152 Mo. 76; State v. Rose, 178 Mo. 28.
   GANTT, P. J.

On February 11,1909, an information duly verified, was filed in the office of the clerk of the circuit court of the city of St. Louis, charging the defendant with the crime of larceny from the person of one B. C. McMahon in the nighttime. On May 3, 1909, the said defendant was duly arraigned and pleaded guilty as charged in the information and the court assessed his punishment at two years in the penitentiary. Judgment was accordingly pronounced, and thereafter the defendant, upon his application, was paroled. It appears that the clerk of the court in entering the judgment and sentence by inadvertence or misprision wrote the word “party” instead of “person,” thus causing the judgment to read: “It is therefore considered by the court that John Collins for his offense of larceny from the party, in the nighttime, and in pursuance of his plea of guilty thereto, be imprisoned,” etc.

On May 26, 1909, defendant’s parole was revoked, and on June 26 his motion to set aside the revocation was overruled. On July 15, 1909', the defendant applied for and obtained a writ of error from the clerk of this court and this cause is now here on the said writ and the return thereto.

Afterwards, on August 23, 1909, the circuit court caused to be entered an order nunc pro tunc correcting the said judgment entry so as to cause the same to read:' “That the said John Collins for his offense of larceny from the person in the nighttime, and in pursuance of his plea of guilty thereto, be imprisoned in the penitentiary of this State for the term of two years, and he pay the costs of this prosecution and stand committed until his sentence be complied with.”

The plaintiff in error has filed no brief and assigns no errors in this conrt, but as in duty bound, we have read the entire record and we find the information is one based upon section 1901, Eevised Statutes 1899, and is entirely satisfactory. The only possible error of which the plaintiff in error could have complained was the insertion in the entry of the judgment of the word “party” instead of “person,” but when the attention of the court was called to this inadvertence by motion it caused the record to be corrected nunc pro tunc. The power and authority of the circuit court to correct this record by nunc pro time entries is fully established, notwithstanding the case may be pending in this conrt on appeal or writ of error. [State v. Gordon, 196 Mo. l. c. 196; State v. Eaton, 191 Mo. 154.] The record entries in this cause in the circuit court and the information afforded ample basis for the nunc pro tunc order made in this case. As corrected, the judgment is in approved form and contains all the recitals essential to a valid judgment. No error appearing in the case the judgment is affirmed.

In his application for a writ of habeas corpu,s to be admitted to bail pending the hearing of the writ of error, he alleged that after he was sentenced he was paroled, by the judge of the circuit court who pronounced the sentence upon him, but that “in a short time thereafter he was rearrested and without warrant or other process, and was incarcerated in the city jail without a hearing or having his day in court.”

Upon this allegation he now insists in this case that he is entitled to be discharged from arrest under the sentence in this case and allowed to go at large upon his parole because he insists that section 2818, Eevised Statutes 1899, which authorizes the court, or judge thereof in vacation, to terminate said parole at any time, without notice to such person, by merely directing the cleric of the court to make out and deliver to the sheriff or other proper person a certified copy of the sentence, with a certificate that such person has been paroled-and his parole terminated, etc., is unconstitutional. While we are clearly of opinion that this proposition of the unconstitutionality of section 2818 is an afterthought, and the application for the writ of habeas corpus was for the purpose of being admitted to bail, yet in order to settle the rights of defendant, we will consider his contention. The defendant’s sole claim to be allowed freedom from arrest under the judgment is that his parole was illegally revoked. He. asserts that the parole statute is wise and salutary in so far as it grants him immunity for his offense, and he applied for and accepted the benefits of the statute, but insists the same statute is invalid when the court asserts its right to revoke his parole without giving him a trial as to its right and power so to do. Defendant’s reasoning is unsound. He proceeds on the theory that some natural and legal right of his is being denied him, whereas the parole for which he applied and which was granted to him was purely an act of grace on the part of the State through its court. Defendant had been lawfully convicted and sentenced. He had then the option to serve his sentence or apply for a parole under the laws of this State. He knew the provisions of that law and applied for and accepted his parole subject to its provisions and conditions, among which was that which authorized the court to revoke the parole without further notice to him. It was upon this condition he was paroled. If this was invalid the parole was ineffective and the judgment was in full force. By accepting its terms he is now precluded from assailing its validity. This is fully established by adjudications of the courts of last resort on similar statutes. [Arthur v. Craig, 48 Iowa 264; State ex rel. v. Hunter, 124 Iowa 569; Kennedy’s Case, 135 Mass. 48; Woodward v. Murdock, 124 Ind. 439.]

As said by the Supreme Court of Alabama in Fuller v. State, 122 Ala. l. c. 37 and 38: “The parole does not in any wise displace or abridge the sentence; it merely stops its execution for a time only, it may be, or indefinitely, it may proye — it suspends, not destroys .... But if he elects to accept the parole and avails himself of the liberty it confers, he must do so upon the conditions upon which alone it is granted to him.”

As to the suggestion that the officer under this statute might arrest the wrong man and thus deprive an innocent citizen of the right to show that he was not the convict described in the warrant, it suffices to say no doubt can exist that an innocent party thus arrested could unquestionably invoke the writ of habeas corpus and establish his innocence, but we have no such question here. The petition establishes the identity of the prisoner with that of the convict in the judgment. We have no doubt whatever of the constitutionality of section 2818, Revised Statutes 1899, and accordingly we hold that, as the parole granted the defendant has been revoked, it will afford no obstacle to his arrest and incarceration in the penitentiary in accordance with the judgment already affirmed.

Burgess and Fox, JJ., concur.


author: FOX, J.

text:
    THE STATE v. W. J. HARRIS, Appellant.
    Division Two,
    February 12, 1910.
    NO ARRAIGNMENT. Where the record fails to show an arraignment of defendant or the entry of any plea in the cause, a judgment of conviction must be reversed.
    Appeal from Dunklin Circuit Court. — Hon. J. L. Fort, Judge.
    REVERSED AND REMANDED.

      W. 8. G. Walker for appellant.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    The record does not show an arraignment of appellant on the second.- information. Sec. 2561, R. S. 1899, requires that all defendants must be arraigned and required to plead before being put upon trial, or a plea entered by the court on the refusal of such defendant to plead. ¥e see no escape from a reversal of the case at bar, although it may mean that a guilty defendant will avoid a just punishment. The fault is not one of this department, neither is it of this court, as we must brief the records as they are sent here from the courts below. State v. Yaughn, 228 Mo. 149. Appellant should have been arraigned on the second information, and such arraignment must be shown by the record proper.
   FOX, J.

This cause is brought to this court by appeal on the part of the defendant from a judgment of the Dunklin Circuit Court, convicting the defendant of the crime of rape.

On October 5, 1905-, W. R. Hall, the then prosecuting attorney of Dunklin county, filed in the circuit court of said county an information charging defendant with the crime of rape, on one Rosa Harris, alleged to be the daughter of defendant. The record further discloses that a capias was thereafter issued, defendant was arrested, and on December 1, 1905, waived formal arraignment and entered a plea of not guilty. On December 2, 1905, defendant was tried for said crime and by a jury was found guilty, and his punishment assessed at twenty years’ imprisonment in the State penitentiary. On December 7, 1905, defendant filed a motion for new trial, and said motion was overruled on November 28, 1906. On November 28, 1906, defendant filed a motion in arrest of said judgment, and said motion in arrest was, on said date, sustainéd. On November 28, 1906, said prosecuting attorney filed a new information, charging appellant with said crime. In the first information filed the prosecuting attorney failed to charge that said information was filed “upon his oath of office, ’ ’ and for that reason it was evidently held to charge no offense against defendant. After the filing of the second information a .second capias was issued, defendant was arrested, and on May 11, 1907, was tried and by a jury found guilty, and his punishment assessed at 25 years’ imprisonment in the State penitentiary. The record does not show an arraignment of defendant on the second information.

With these disclosures of the record it is unnecessary to make a statement of the evidence developed upon the trial, for the reason that in the absence of an order of record showing an arraignment of the appellant upon the information upon which he was tried, the judgment of the.circuit court must be reversed.

We have carefully examined in detail the disclosures of the record as presented in this court, and we are unable to find anywhere in such record where the defendant was arraigned upon the charge preferred against him.

With commendable frankness on the part of the Attorney-General it is conceded that there is no escape from a reversal of the judgment rendered in this cause.

In the recent case of State v. Vaughn, 223 Mo. 149, it was expressly ruled by this court, in harmony with the long line of decisions in this State upon this subject, that it is essential in order to sustain a judgment that the record must show an arraignment upon the charge preferred and the entering of a plea to such charge.

As before stated, the record fails to show any arraignment or tbe entry of any plea in tbis cause; therefore, the judgment of the circuit court should be reversed and the cause remanded, and it is so ordered.

All concur.


author: BURGESS, J.

text:
    THE STATE v. GEO. A. CURRIER and JOHN MOORE, Appellants.
    Division Two,
    February 12, 1910.
    1. INFORMATION: Disjunctive Words: Proof. Where the statute makes the commission of certain acts, named therein in the disjunctive, a crime, all of the several acts may he charged con-junctively in one count, and the count will be sustained by proof of any one of the offenses charged.
    2. -: -: Both Felony and Misdemeanor: Wounding and Killing Cattle. An information charging that defendant did “shoot, wound and kill” seven cattle .... “of which wounds three of said cattle then and there died,” is not bad under a statute (Sec. 1897, R. S. 1899) which declares that “every person who shall wilfully and maliciously kill, maim, or wound” any cattle, shall be punished by imprisonment in the penitentiary or jail, or by fine. It does not charge two distinct offenses, one, the wounding of four cattle, a misdemeanor, and another, the killing of three, a felony. It does not contain in one count a misjoinder of offenses. Besides, the charge as to wounding may be treated or rejected as surplusage.
    3. WITNESS: Not Indorsed on Indictment. Unless the record shows opportune objection to the testimony of a witness whose name was not indorsed on the indictment, a complaint that the prosecuting attorney refrained from making said indorse-ments for the purpose of springing him at the trial as a surprise on the defendant, cannot be considered on appeal; the objection cannot be made for the first time in the motion for a new trial.
    4. REOPENING CASE. It is not error to refuse to reopen the case for the introduction of negative, unimportant and incom petent testimony.

      5. MOTION FOR NEW TRIAL: After Judgment. In criminal cases the motion for a new trial must he filed before judgment, and unless it is so filed there is, in legal contemplation, no motion for a new trial.
    Appeal from Howell Circuit Court.— Hon. W. N. Evans, Judge.
    Aebtekmed.

      B. S. Hogan and Green & Green for appellants.
    The indictment charges in the one count the wounding of four cattle and the killing of three: two separate and distinct offenses, the wounding a misdemeanor, the killing a felony. These two offenses could. not he joined in the same indictment, even if separately stated in different counts, hut in no event could they he joined in the one count. State v. Nitch, 79 Mo. App. 99; State v. Green, 24 Mo. App. 227; State v. Harrison, 62 Mo. App. 112. The evidence admitted under the charges in the indictment as to the wounding of cattle, was prejudicial to the defendants, was lodged in the minds of the jury, and this instruction would not cure the error of admitting same, or undo the wrong. State v. Minor, 193 Mo. '597; State v. Hopper, 71 Mo. 425; State v. Fredericks, 85 Mo. 145; State v. Thomas, 99 Mo. 235; State v. Bateman, 198 Mo. 222. The State, with a view of taking an undue advantage of defendants, purposely and intentionally refrained from endorsing the name of Ed Stites on the indictment, and withheld such name from the defendants for the purpose of springing, him at the trial as a surprise on defendants; the testimony of said witness was not true and was a surprise to the defendants and by reason of the conduct as aforesaid of respondent, defendants were precluded and did not have the opportunity of showing the falsity of such testimony. Defendants knew nothing of this witness until the morning of the day of the trial, and did not know what he would testify to, or, in fact, -whether he -would be used as a witness, until he was placed on the witness stand; by reason of the situation, appellants, before the witness testified, had no knowledge upon which they could have based a motion to quash the indictment on the ground of surprise. State v. Barrington, 198 Mo. 70; State v. Henderson, 186 Mo. 473.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) The indictment is based on Sec. 1987, R. S. 1899, and is sufficient, valid and properly charges the offense. State v. Grimes, 101 Mo. 188; State v. Woodward, 95 Mo. 129; State v. Goss, 74 Mo. 592. The motion to quash was properly overruled. It is a general rule of criminal pleading that the prosecutor is at liberty to charge in a single count, as a single offense, a single act or transaction in violation of law, although that act involves several similar violations of law with respect to several different persons. United States v. Scott, 74 Fed. 215; 1 Hale P. C. 531; 2 Piale P. 0. 252; 2 Russ. Crimes, 127; 3 Chitty’s Crim. Law, 959; Pointer v. United States, 151 U. S. 396; United States v. Simmons, 96 U. S. 360. (2) It was a matter largely within the discretion of the trial court as to the reopening of the case after same was closed and the witnesses discharged, and, unless it is conclusively shown that the trial court abused its judicial discretion, this court will not’ interfere. State v. Worten, 139 Mo. 533; State v. Reed, 137 Mo. 134; State v. Dunn, 179 Mo. 95. (3) Motion for new trial must be filed before judgment. This is mandatory. Sec. 2689, R. S. 1899; State v. Maddox, 153 Mo. 473; State v. Brooks, 92 Mo. '591; State v. Pritchett, 219 Mo. 704; State v. Rosenblatt, 185 Mo. 114; 1 Chitty’s Crim. Law (5 Ed.), p; 663; Bishop’s Crim. Pro. (1 Ed.), sec. 852. (4) This court cannot consider defendant’s objection to the testimony of Stites on the ground that his name was not endorsed on the indictment,- because such objection was not made in the trial court at the time; no objection was made to his testifying, and this objection, coming for the first time in the motion for a new trial, comes too late. State v. Smith, 137 Mo. 28; State v. Tate, 156 Mo. 130; Sec. 2517, E. S. 1899'; State v. Pagles, 92 Mo. 300. The section of the -statutes which requires, when an indictment shall be found by the grand jury, the names of all the material witnesses shall be endorsed thereon, specially provides that the State may introduce witnesses whose names are not so endorsed on the indictment. Sec. 2517, E. S. 1899 ; State v. Woodward, 182 Mo. 391; State v. Bailey, 190 Mo. 257; State v. Nettles, 153 Mo. 464; State v. Barrington, 198 Mo. 23. An objection to the testimony of witnesses on the ground that their names were not endorsed on the indictment cannot be raised for the first time on a motion for a new trial. State v. Johnson, 118 Mo. 491; State v. Eunzi, 105 Mo. App. 319.
   BURGESS, J.

On the 11th day of February, 1909, the grand jury of Howell county returned into open court an indictment charging the defendants with feloniously, wilfully and maliciously shooting and killing three cattle, the property of George Eothwell, W. M. Ulrich and J. H. Soots. At the March term, 1909, of the circuit court of said county, the defendants filed a motion to quash the indictment, .which motion was overruled, and they thereupon entered their plea of not guilty, and went to trial. They were found guilty of the offense charged, the jury assessing their punishment at a fine of fifty dollars each. Judgment and sentence were entered accordingly. Defendants thereafter filed motions for new trial and in arrest of judgment, which having been overruled, they appealed.

The defendants, as the evidence shows, were stockholders in a corporation owning a farm of 1600 acres in Howell county, and which was called the “Greg-more Fruit Farm.” This farm was managed by one ITerman Utterman, who, with his family, lived thereon. The defendants resided in the city of St. Lonis, but went to the farm, stopping at the home of Mr. Utter-man, on the Wednesday preceding Sunday the 11th of October, 1908, the date of the alleged offense, and stayed there until the following M'onday.

Reports of firearms were heard by neighbors, between two and three o’clock on the afternoon of Sunday, October 11, 1908, the sound coming from the direction of the Gregmore Fruit Farm. That evening W. M. Ulrich discovered two of his cows in a maimed condition, and, upon examining them, found that they had been shot. Accompanying his cattle were two belonging to J. H. Soots which also were wounded and maimed in like manner. He picked out some of the shot imbedded in the flesh of the animals, the shot being of different sizes. On the following day two cattle were found dead from gunshot wounds on the Greg-more farm, one of which belonged to Ulrich, and the other to Soots. A few days later Mr. Soots found another one of his cattle lying dead on said farm, it having been killed in the same way. About seven other cattle, belonging to different parties, were found maimed from gunshot wounds on the Gregmore farm. Near where the dead cattle were found were a number of empty No. 12 cartridge shells, which were different from those commonly used by the people of the neighborhood, in that the paper part was red and the shells had more brass than those ordinarily used there. Where the dead cattle were found was about a half mile west of the main buildings on the Gregmore Fruit Farm.

Ed Stites, a witness for the State, testified that he was riding through the Gregmore farm on the afternoon of the Sunday in question, in search of a cow of his which had strayed away some months before, and that, between two and three o’clock of that afternoon, lie saw the defendants shooting cattle on the farm; that he saw Moore shoot first, and that Moore then called to Currier, who was some distance away, to come and help him shoot; that Currier came up and began shooting; that the defendants fired about twenty-five times; that from the reports of the guns he thought one was a rifle and the other a shotgun. Upon cross-examination, the witness stated that he did not immediately tell anybody about what he saw, but that as soon as he learned whose cattle had been shot he told Mr. Ulrich about it; also, that just before the trial Ulrich or George Rothwell told him not to tell defendants’ counsel anything he knew about the matter.

The evidence also showed that defendant Currier, on Monday evening, October 12, 1908, at the town of Olden, while eating supper at a hotel there, in discussing the stock law and the trespassing of stock in the yard of the hotel, said to the proprietor of the hotel: “Do them like we do; there was some cattle trespassing upon us, and we just took our guns and shot them.” Two witnesses, H. C. Hopkins and John Keithly, testified as to this conversation and the remarks made by the said defendant, their testimony being substantially the same.

Theodore Boss testified for the State that he moved into a house on the Gregmore Fruit Farm on the Sunday in question; that the house he occupied was about two hundred yards from the main buildings on the farm; that about two o’clock that afternoon he went over to the house occupied by Mr. Utterman, and' saw the defendants sitting under a shade tree in the yard; that he returned to his house and shot off an old cannon which he had there, and that between .two and three o ’clock, the same afternoon, he heard a number of shots fired, west of where he lived, but that he did not know who fired them.

The defendants offered evidence to show that on Sunday, October 11, 1908, they were at the farm; that they ate breakfast with Utterman’s family at about half-past eight o’clock that morning’, and, after breakfast, went out for a ride on the farm, returning about eleven o’clock; that they had dinner about two o’clock, and remained about the house, visiting the barn and kennels, and sitting in the swing in the yard, all that afternoon, and were not at the place where the cattle were shot.

After giving her testimony as to the whereabouts of the defendants that Sunday afternoon, Mrs. Utter-man, wife of Herman Utterman, upon cross-examination, was asked if she heard any shooting there that afternoon. Her answer was: “If I did, I didn’t pay any attention to it, because Mr. Boss had shot oft his cannon once or twice.” Again she was asked if she had heard any shooting, and again her answer was, “I heard Mr. Boss’s cannon.” It is plain that these answers are evasive, and not responsive to the questions asked.

Defendant Moore, on the witness-stand, being, questioned by counsel for the State as to the kind of cartridges used on the G-regmore farm, answered: “All kinds; there are shells there, some twenty gauge, and some red and some yellow.” However, another witness for the defense, Miss Eva Utterman, daughter of Herman Utterman, on being asked if she ever saw any white shells there, answered that she did not. She was then asked if she saw any red shells. Her answer was, “I think I have.”

Defendant Currier, with reference to the remarks attributed to him by the State’s witnesses, Hopkins and Keithley, testified that he did not remember anything about it, and that he did not remember seeing either of said witnesses at the town of Olden.

Defendants contend that the indictment charges two separate and distinct offenses, to-wit, the wilful and malicious wounding of four cattle, and the killing of three cattle, the one being, as contended, a misdemeanor, and the other a felony.

The indictment charges that the defendants “did feloniously, wilfully, maliciously and unlawfully shoot, wound and kill certain cattle, to-wit, four heifers, ranging from one to two years of ag’e; two cows and one two-year-old steer, the property of George 0. Roth-well, W. M. Ulrich and J. H.- Soots, hy then and there shooting said cattle in the head, legs and body, with a shotgun and rifle loaded with gunpowder and leaden shot and halls, which said leaden shot and balls, so discharged from said guns, entered through to the skin and into the flesh of said cattle, thereby causing and inflicting divers wounds on the head, body and legs o.f said cattle, of which wounds three of said cattle then and there died, contrary to the form of the statute,” etc.

The statute (Sec. 1987, R. S. 1899) upon which the indictment is based reads: “Every person who shall wilfully and maliciously kill, maim or wound any horse, mare, colt, mule, ass or neat or horned cattle of another, shall, upon conviction, he punished hy imprisonment in the penitentiary not exceeding three years, or hy imprisonment in the county jail not less than six months, or hy a fine of not less than fifty dollars, or by both such fine and imprisonment.”

As will be noticed, the statute is in the disjunctive, and makes either of the acts mentioned therein criminal, and the indictment unites and charges the offenses conjunctively in one count, which is proper. “Where a statute on which an indictment is founded, enumerates the offenses or the intent necessary to constitute such offenses, disjunctively, the indictment must charge them conjunctively, where the acts are not repugnant.” [State v. Flint, 62 Mo. 393.] It has uniformly been held hy this court that where a statute makes the commission of certain acts, named therein in the disjunctive, a crime, all of the several acts 'may be charged conjunctively in one count, and the count will be sustained by proof of one of the offenses charged. [State v. Harroun, 199 Mo. 519; State v. Pittman, 76 Mo. 56; State v. Bregard, 76 Mo. 322; State v. Flint, supra.] Consequently, the indictment is not open to objection on the ground of misjoinder of offenses, and the court properly overruled the motion to quash on that ground. It is a rule of law that a portion of an indictment may be stricken out, or be treated as surplusage, if enough be left to make a valid and substantial charge of the crime intended to be charged, no essential part of the case being omitted after the striking out occurs. [State v. Meyers, 99 Mo. 107; State v. Flanders, 118 Mo. 227; 1 Chitty’s Crim. Law, 250; Whart. Crim. PI. and Pr., sec. 158.] We hold that the indictment sufficiently charges the defendants with the wilful and malicious killing of certain cattle, and the charge as to the “wounding” may be rejected or treated as sur-plusage. Besides, the court, by special instruction,, confined the jury to a consideration of the evidence with regard only to the killing of the cattle, and told them not to consider any evidence as to the wounding.

Complaint is made that the prosecuting attorney purposely refrained from indorsing the name of Ed. Stites, a material witness for the State, on the indictment, for the purpose of springing him at the trial as a surprise on the defendants. The record does not show that the testimony of this witness was opportunely objected to on this or any other ground, and the objection could not be raised for the first time in the motion for a new trial. [State v. Johnson, 118 Mo. 491, and cases therein cited.]

At the close of the case the defendants asked the court’s permission to reopen it for the purpose of introducing J. L. Bess, ex-prosecuting attorney, and Wm. S. Morgan, ex-sheriff of Howell county, as witnesses for the defense. The conrt refused so to do, and such refusal is assigned as error. According to the statements of counsel at the time, the gentlemen named, if permitted, would testify that they frequently saw George Rothwell and W. M. Ulrich after the time witness Stites claimed he informed them of the facts to which he would testify, and that said Roth-well and Ulrich gave the said ex-prosecuting attorney and ex-sheriff no information regarding the matter. In the first place, witness Stites did not in his testimony state the time when he communicated to Ulrich or Rothwell the facts in his possession. In the next place, there was no obligation resting on Ulrich or Rothwell to tell the ex-prosecuting attorney or ex-sheriff what they knew in that regard; and, lastly, the testimony sought to he introduced, being altogether of a negative character, and not contradictory of any other evidence introduced at the trial, could in no way affect the result. The court properly refused to reopen the case for the introduction of such negative, unimportant and incompetent testimony. As has often been held by this court, it is a matter within the discretion of the trial court whether a party shall be allowed to reopen his case, and introduce further evidence, after declaring his evidence closed. [State v. Pennington, 124 Mo. 388; State v. Eisenhour, 132 Mo. 140; State v. Smith, 80 Mo. 516; State v. Dunn, 179 Mo. 95.]

The record shows that the verdict was returned, and judgment and sentence entered, on the 24th day of March, 1909, and the motion for a new trial was filed the following day. In criminal cases the motion for new trial must he filed “before judgment, and within four days after the return of the verdict or finding of the court.” [Sec. 2689, R. S. 1899; State v. Maddox, 153 Mo. 471; State v. Rosenblatt, 185 Mo. 114; State v. Pritchett, 219 Mo. 696.] The motion for new trial having been filed one day after judgment, there was, in legal contemplation, no motion for new trial, and therefore nothing for ns to review. Nevertheless we have considered the more important points presented in the brief furnished hy counsel for defendants. Finding no reversible error in the record, the judgment is affirmed.

All concur.


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    THE STATE v. JOHN AGEE, Appellant.
    Division Two,
    February 12, 1910.
    BILL OF EXCEPTIONS: Not Identified or Approved. If the bill of exceptions is not identified or signed by the judge of the court wherein the case was tried, nothing hut the record proper can be considered on appeal; and if the information is in due form and fully advises the defendant of the accusation against ■him, and the record otherwise appears to be free from error, the judgment of conviction will be affirmed.
    Appeal from Buchanan Criminal Court. — Hon. Thos. F. By an, Judge.
    AFFIRMED.

      Hobson. Hoar for appellant.

      Elliott W. Major, Attorney-General, and James T. Blair, ‘Assistant Attorney-General, for the State.
    (1) The certificate to the transcript recites that “the foregoing is a full, true and complete copy of the files and record entries and order allowing appeal, and hill of exception . . . and is in the following words and figures, to-wit: ... In testimony whereof, I hereunto set my hand and affix the seal,” etc. Appended to this transcript of the record entries, certified as indicated, are some fifty or sixty pages of typewritten matter designated “Bill of exceptions.” The bill is not properly identified. If the recital in the clerk’s certificate, which precedes what purports to be the bill, indicates anything, it indicates that the certificate pertains to the “foregoing” matter. The bill of exceptions cannot be considered. State v. Baty, 166 Mo.' 563; State v. Weinegard, 168 Mo. 491; Beno v. Fitz Jarrell, 163'Mo. 411; Clay v. Pub. Co., 200 Mo. 673; Stark v. Zehnder, 204 Mo. 449. (2) The bill of exceptions does not appear to have been signed by the judge. For that reason, also, matters of exceptions cannot be considered. State v. Collins, 196 Mo. 87. There being no bill of exceptions, and the record proper being free from error, the judgment should be áffirmed.
   BURGESS, J.

On the first day of February, 1909, the prosecuting attorney of Buchanan county filed, in the criminal court of said county, an information charging the defendant and four others with burglarizing a freight car belonging to the Chicago, Bock Island and Pacific Bail way Company, a corporation, and stealing therefrom five cases of whiskey, one sack of coffee, and one barrel of sugar, of the total value of one hundred dollars. Defendant requested and was granted a severance, and a jury was duly impaneled and sworn. The trial resulted in his conviction of both the burglary and larceny, the jury assessing his punishment at five years in the penitentiary for burglary, and three years in the penitentiary for the larceny. ' Timely motions for new trial and in arrest of judgment were filed, and overruled. Defendant was sentenced on the verdict, and thereafter appealed to this court.

What purports to be a bill of exceptions, filed in this case, is not properly identified, nor is the same signed by the judge of .the court before whom the case was tried. By reason of these two fatal defects, the evidence in this case cannot be looked into, and no matter of exception can be considered on this appeal.

The information is in due form, charging the ofíense in the language of the statute and fully advising the defendant of the accusation against him, and the record otherwise appears to he free from error. The judgment, therefore, is affirmed.

All concur.


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    THE STATE v. PATRICK CLANCY, Appellant.
    Division Two,
    February 12, 1910.
    1. ASSAULT WITH INTENT TO KILL: Deadly Weapon: Bottle. Tbe bottle witb which defendant struck the prosecuting witness was described simply as a “Bevo" bottle, but, though it was introduced in evidence, its dimensions were not given, nor was it shown whether it was heavy or light, full or empty. Held, there was no evidence upon which the court could instruct the jury upon the theory of a felonious assault, with a deadly weapon, to-wit, a heavy glass bottle.
    2. REMARKS OF ATTORNEY: Unwarranted. Remarks by the circuit attorney that defendant was a “police character” and “was under the surveillance and the suspicion of the police,” when there was no evidence to justify such a characterization, were unwarranted; and the court’s failure, upon objection, to rebuke the attorney and to direct the jury to disregard them, wa,s error; and a statement by the court, that “I will sustain the objection, and correct the circuit attorney,” was no correction at all.
    Appeal from St. Louis City Circuit Court. — lion. Chas. Glaflin Allen, Judge.
    REVERSED AND REMANDED.

      G. Orrick Bishop for appellant.
    (1) The fourth parag'raph of the first instruction assumes that the weapon used was a heavy glass bottle. There is nothing in the record to show what sort of bottle was used in the alleged assault, it being described only as a “Bevo” bottle, and identified as the bottle which appellant had in his hand when he was arrested. There is nothing from which it may be determined whether it was heavy or light; although there is evidence that when the prosecutor was struck with it there was a “terrible flow of blood,” and that he had had a “sort of a headache” all the time since. There was no medical evidence as to the nature of the wound, or injury, although the prosecutor claimed to have received medical treatment. The language used, in connection with the declaration as to the presumption of intent, was calculated to impress the minds of the jurors that, in the opinion of the court, the weapon used was a heavy glass bottle. (2) The court erred in permitting the circuit attorney, in his closing argument, over appellant’s timely objections, to indulge in improper argument and to abuse the appellant.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) Upon a careful consideration and perusal of all the instructions given in the case, they are found to properly declare the law applicable to the facts of this case, and substantially conform to approved precedents of this court. State v. Tetrick, 199 Mo. 104; State v. Miller, 93 Mo. 263. (2) Taking all the arguments, objections and rebukes by the court to the circuit attorney, the defendant was not and could not have been prejudiced. The judgment should not be reversed by reason of improper arguments of counsel unless the defendant is prejudiced thereby. The argument was proper. State v. Sublett, 191 Mo. 174; State v. Harvey, 214 Mo. 403; State v. McMullin, 170 Mo.- 632.
   BURGESS, J.

On November 30', 1908, in the circuit court of the city of St. Louis, defendant was convicted of the crime of assault with intent to kill, with malice aforethought, under an indictment charging him with said offense, and his punishment assessed by the jury at five years in the penitentiary. Motions for new trial and in arrest of judgment were filed by defendant, and the same being overruled by the court, defendant appealed.

The evidence developed the following state of facts:

Iiarry Y. English, the victim of the assault, was a dealer in cigars and tobacco, at 2028 Olive street, in the city of St. Louis. At about eight o’clock in the evening of the 12th day of October, 1908, he was in his store, standing in front of a cigar case, reading a newspaper, his back being towards the door, when defendant came in and struck him on the back of the head. Turning around, he recognized and grappled with the defendant, and a scuffle ensued, during which the cigar case was broken. Defendant was followed into the store by another man, who said, “Wait a minute, and I’ll get him.” This party took a stool which was in front of the counter, and endeavored to strike English with .it, but the latter clung close to the defendant and held him in such a way that his new assailant could not strike him at that time. During the struggle the defendant seized what was called a “Be-vo” bottle, which was on the counter, and struck English therewith on the head. He fell down between two cigar cases, and his two assailants struck him several times while down, but he managed to protect himself to some extent by using his feet. While on the floor, English drew a revolver out of his pocket, whereupon the defendant and the other man ran out of the store, the defendant going without his hat, but taking the bottle with him. English got up and went to the door, and seeing the defendant running across the street he fired three times at him, two of the shots taking effect, one in the left arm and the other in the left leg. Defendant was pursued by a police officer and arrested. At the time of .his arrest he was hatless and still had the “Bevo” bottle in his hand. He was taken back to English’s store, where two hats were found lying on the counter, one of which defendant claimed as his and put it on. The bottle in question was offered in evidence, and identified by said police officer as the one he saw in defendant’s possession when he arrested him. It was also identified by English as the one with which he was struck.

English testified that there was a great flow of blood from the wound in his head inflicted by the defendant; that his wife washed off the blood, and that he was then taken to the city dispensary, where his wounds were dressed; that since the time of the assault he had a “sort of headache” all the time.

The evidence shows that on October 7, 1908, the defendant was convicted of the crime of false registration in the city of St. Louis, and that English and one Max Klein were witnesses against him at the trial which resulted in his said conviction, and it also appears that one Thavenau was convicted of a like offense at or about the same time. The said Klein was a witness for the State in this case. He testified that he was in the saloon business at 2100 Olive street; that on the evening of the assault defendant and the said Thavenau came into his saloon; that defendant took a glass of beer, and asked him (Klein) to take a drink with him, which he declined to do, but took a cigar instead. After remaining a few minutes longer, defendant and his companion left the saloon. About fifteen minutes after their departure witness heard several pistol shots. English’s store and Klein’s saloon were but a short distance apart. At the time defendant and Thavenau were in the saloon, Klein was in the company of and drinking with some of his friends.

Defendant, testifying in his own behalf, stated that on the day in question he was working for the city, in the water department; that in the evening he met Thavenau at Twenty-first and Olive streets, and they went into Klein’s saloon to have a drink; that after leaving the saloon he and Thavenau parted, the latter going west and he going east on Olive street; that he had heard of a rnmor to the effect that somebody -told English that he (defendant) was going to do something to him, and as he was passing by English’s store, he thought he would go in and see him about it; that English stopped him as he was going in, and “the fuss started right there;” that other parties whom he did not know followed him into the store and took part in the fight; that he got away from English as soon as he could, and as he was leaving he seized a bottle to protect himself with; that as he was running away he was shot by English in the arm and leg. He denied striking English with the bottle, but stated that he struck him with his fist. On cross-examination, he acknowledged that on the 7th of October, 1908, he had been tried in the circuit court on a charge of fraudulent registration, and had been convicted, his punishment being fixed at five years in the penitentiary.

The indictment charges that “the said Patrick Clancy, with a certain deadly weapon, to-wit, a heavy glass bottle, likely to produce death or great bodily harm, then and there feloniously, wilfully, on purpose and of his malice aforethought, did assault, beat, bruise and wound the said Harry Y. English, then and there giving to the said Harry Y. English, in and upon the head and body of him, the said Harry Y. English, with the deadly weapon, to-wit, the heavy glass bottle aforesaid, one wound, with the intent then and there him, the said Harry Y. English, feloniously, wilfully, on purpose and of his malice aforethought, to kill,” etc. The court instructed the jury upon the theory of a felonious assault, with a deadly weapon, to-wit, a heavy glass bottle, without any evidence whatever that the bottle in question, which was introduced in evidence, was a deadly weapon. It was simply described as a “Bevo” bottle, whatever that means. Its dimensions were not given, nor was it shown whether it was heavy or light, full or empty. It was for the jury to determine, under proper instructions, whether said bottle was a deadly weapon, and without such finding they could not find the defendant guilty. There being no evidence from which it could be inferred that the bottle was a deadly weapon, it yms improper to give said instruction. For this reason the judgment will have to be reversed, and a new trial ordered.

The circuit attorney, in his closing argument for the State, more than once gave utterance to remarks of a character prejudicial to the defendant, and which were not warranted by the evidence. Among other such remarks, were the following:

“Counsel for defendant says if he [defendant] went in there to do him great bodily harm, why didn’t he have a weapon? I will tell you why. People of that character don’t carry weapons very often. Police characters don’t carry weapons very often.” On objection of defendant’s counsel that there was no evidence that defendant was a “police character,” the court said, “I don’t know whether I know what a police character is. He seems to have been on the police force; he may have had a police character.” Exception was saved to this language of the court, and the court then said, “I don’t,know if it is objectionable — I will sustain the objection — I don’t know whether the jury understand it or not.” The circuit attorney then, in explanation of the term “police character,” said: “I mean a man who was under the surveillance and under the suspicion of the police; a man that was liable to be picked up by the police, or arrested by the police. ’’ The court then said: “With that explanation given by the circuit attorney, I will sustain that, and correct the circuit attorney.” This was no correction at all, and the court might as well have said to the circuit attorney that he should not have made such statement. There was no testimony whatever to the effect-that defendant was a “police character.” Indeed, the police officer who arrested the defendant testified that he had never known nor seen the defendant prior to the time of his arrest. Such remarks by the circuit attorney must have been very damaging to the defendant, and were beyond the pale of legitimate argument. Upon objection made by the defendant, the court should have promptly rebuked counsel for the State for his unwarranted remarks, and directed the jury to disregard them. Failure to do so was error. [State v. Young, 99 Mo. 666; State v. Ulrich, 110 Mo. 350; State v. Fischer, 124 Mo. 460; State v. Bobbst, 131 Mo. 328.]

For the reasons given, the judment is reversed and the cause remanded for new trial.

All concur.


text:
    ROSE SPITHOVER, Appellant, v. JEFFERSON BUILDING & LOAN ASSOCIATION.
    Division Two,
    February 12, 1910.
    1. WITNESSES: Deceased Party: Agent. Where plaintiff's deceased husband acted for her in making the hid at the time the loan of the building and loan association was made to her, its president and secretary are not incompetent to testify that the money was awarded to her at public auction and competitive bid.
    2. BUILDING AND LOAN: By-Laws: No Separate Auction. A provision of a by-law of the building and loan association that “no loan shall be made to a second bidder on the same evening for a premium lower than the successful bid” does not mean that there could be no separate auction of different funds od the same evening.

      3. -: Loan: Usurious Interest: Constitutional. A charging of a shareholder of a building and loan association of thirty-five per cent of her loan as and for a premium, although when taken with the interest charged the two together exceed the usual lawful rate of interest, is not usurious; and the statute permitting such premium to he hid and charged (Sec. 1364, R. S. 1899) is not in violation of the constitutional provision declaring that “the General Assembly shall not pass any local or special law fixing the rate of interest.”
    Appeal from St. Louis City Circuit Court. — Sow. Matt O. Reynolds and lion. Win. M. Kinsey, Judges.
    Affirmed.

      Jas. J. O’Donohoe for appellant.
    (1) The funds of a building and loan association must be offered to the stockholders at a stated meeting without restriction as to the premium. Each stockholder must be afforded the opportunity of borrowing at the lowest rate he can in competition with other stockholders. The officers or board of directors have no right to regulate by by-law or otherwise the premium. Lewis v. Loan and Building Ass.,. 183 Mo. 351; McDonnell v. De Soto Assn., 175 Mo. 250’; Ruppell v. Mo. Guar. Assn., 158 Mo. 613; Arbuthnot v. Brookfield Assn., 98 Mo. App. 382; Thudium v. Brookfield Assn., 98 Mo. App. 377; Sappington v. Loan Co., 91 App. 551; Fry v. Savings & Bldg. Assn., 88 Mo. App. 289; Fow-les v. Loan Co., 86 Mo. App. 103; Clark v. Mo. Guar. Assn., 85 Mo. App. 388; State ex rel. v. Stockton, 85 Mo. App. 477; Miller v. Mo. Guar. Assn., 83 Mo. App. 669; Ediuger v. Mo. Guar. Assn., 83 Mo. App. 615; Barnes v. Mo. Guar. Assn., 83 Mo. App. 466; Sapping-ton v. Loan Co., 76 Mo. App. 242; Price v. Loan Co., 75 Mo. App. 551; Moore v. Building & Loan Assn., 74 Mo. App. 468; Brown v. Archer, 62 Mo. App. 277. (2) Secs. 2812 and 2814, R. S. 1889, in force in the year 1892, when the loan in question was made, as well as all by-laws based thereon, do not protect the present ease from the charge of usury, for the Legislature has no power by a special law to authorize a certain class of corporations to loan money at a higher rate of interest than is allowed by the Constitution and general laws of the State; and such sections and by-laws are in conflict with section 53 of article 4 of the Constitution of the State. Maloney v. Real Estate Assn., 57 Mo. App. 384; Reiser v. Savings F. Assn., 39 Pa. St. 137; B. & L. Assn. v. McKnight, 35 Pa. St. 470; Premium F. Association’s Appeal, 39 Pa. St. 156; Link v. B. '& L. Assn., 89 Pa. St. 15; Simpson v. Kentucky Citizens’ Assn., 101 Ky. 496; Monticello B. & L. Assn, v. Smyth, 10 Cent. L. J. 434; Citizens’ Security Co. v. Uhler, 48 Md. 455; Association v. Bollinger (S. C.), 12 Rich Eq. 124; Cooley on Constitutional Limitations, p. 485; Endelich on Building Associations, sec. 863; .State ex rel. v. McGrath, 95 Mo. 193. (3) To establish an agency for the wife on the part of the husband, the evidence must be strong, cogent and more satisfactory than would be required between persons occupying different relations; and the same rule obtains with respect to ratification by the wife of a contract made by the husband, as her agent. Bank v. Bank, 130 Mo. 161; Doross v. Broderick, 78 Mo. App. 260; Thompson v. Kehrmann, 60 Mo. App. 488; Planing Mill Co. v. Brundage, 25 Mo. App. 268; Barker v. Berry, 8 Mo. App. 447. But if appellant’s husband had authority as her agent to appear at the meeting of June 8, 1892, and hid the premium, still appellant’s husband being dead rendered respondent’s evidence in reference to the same wholly incompetent. Holl-mann v. Lange, 143 Mo. 106; Crosno v. Milling Co., 106 Mo. App. 236; Wilden v. McAllister, 91 Mo. App. 446; Saltelle v. Life Ins. Co., 81 Mo. App. 509; Nichols Shepard & Co. v. Jones, 32 Mo. App. 657.

      Kinealy & Kinealy for respondent.
    (1) Appellant nrust present her case in this court upon the same theory on which she tried it in the circuit court, and therefore she cannot here seek relief on the ground that respondent’s by-law as to auctioning money is void, or that she did not receive from the association the full amount of the loan made by her. Kirkpatrick v. Wiley, 197 Mo. 123; Atterbury v. Hopkins, 122 Mo. App. 172. (2) Our laws regulating building and loan associations and exempting them from the effects of the usury statutes are not unconstitutional. Sheldon v. Birmingham Bldg. Assn., 121 Ala. 278 ; Cook v. Equitable Bldg. Assn., 104 Ga. 814; Holmes v. Smythe, 100 Ill. 413; Security Assn. v. Elbert, 153 Ind. 198; Iowa Sav. Assn. v. Heidt, 107 Iowa 297; Peoples B. & L. Assn. v. Billing. 104 Mich. 186; Zenith Assn. v. Heimbach, 77 Minn. 97; Home Bldg. Assn. v. Nolan, 21 Mont. 205; So. Omaha Assn. v. Wirrick, 63 Neb. 598; Cramer v. So. Ohio L. & T. Co., 72 Ohio St. 395; Smoot v. Peoples Assn., 95 Va. 686; Archer v. Baltimore Assn., 45 W. Va. 37; Stanley v. Verity, 98 Mo. App. 632. (3) Martin Kelly was a competent witness. Bank v. Slattery’s Admr., 166 Mo. 620; Fink v. Hey, 42 Mo. App. 295; Myer v. Old, 57 Mo. App. 639; Jenkins v. Emmons, 117 Mo. App. 1.
   GANTT, P. J.

The plaintiff was the owner of ten shares of stock of the par value of $240 each in the defendant corporation and building association, organized under the laws of this State, and on the 30th day of June, 1892, she borrowed from it the sum of $2400, and, together with her husband, Henry Spit-hover, executed to the defendant a bond, wherein they acknowledged themselves indebted to the association in the sum of $2400, with $10 per month interest from date, and a premium of $8.40 for a preference in obtaining the loan, and conditioned that they would pay to tlie association $28.40 every month, as the dues on the stock, interest, and premium on the loan, and also that they would promptly pay all fines assessed against them and taxes and assessments levied upon the real estate described in the deed of trust securing the bond; and that if at any time they should permit the dues, interest, premium or fines to remain unpaid for six months, then the whole debt should become due at once at the option of the association and the deed of trust might be enforced for the payment of the debt. At the same time as further security for the bond and debt, plaintiff and her husband executed to Julius E. Ureffet, as trustee, a deed of trust upon the lot of ground in City Block 2332 of the city of St. Louis, having a front of twenty-five feet on the north line of Madison street. The deed of trust provided that in case the dues, interest, premium or fines should become in default for six months, or if at any time, such dues, interest, premium and fines accumulate so as to equal the sum of six months’ dues, interest, premium and fines, or if the plaintiff failed to pay the taxes on the property or to keep the same free from mechanics’ liens, the trustee might proceed to sell the property for the purpose of paying the amount due.

At the time of the execution of this bond and deed of trust, plaintiff also pledged her ten shares of stock to the association. The last payment made by the plaintiff and her husband on account of the loan was in February, 1900, and because of the default in payments the association caused the property to be sold after advertising the same, on the second day of March, 1901, and it was purchased by the association for $2250'. On the 28th of August, 1905, plaintiff instituted this suit claiming that the loan made to her was usurious and that she had in reality paid back all that was due from her, and consequently there was no default on her part at the time of the sale of the property by the trustee, and in her petition she prays that an accounting may be bad between tbe parties, and that she may be given judgment against respondent for the amount found to have been paid in by her, and also the amount that the property brought at the foreclosure sale, together with interest thereon at six per cent per annum, less the amount of the loan made to her, with five per cent interest thereon.

The grounds upon which plaintiff seeks recovery are set forth in her petition as follows: “Plaintiff states further that defendant charged plaintiff thirty-five per cent of said loan of twenty-four hundred dollars as and for a premium, and that said premium is unreasonable, extortionate, oppressive, illegal and usurious; and article 10 of chapter 13 of the Revised Statutes of Missouri, 1899, particularly section 1362 thereof, and article 9 of chapter 42 of the Revised Statutes of Missouri, 1899, especially section 2814 thereof, under which said loan was pretended to be let, and by virtue of which it (defendant) was incorporated, are all in conflict with and in contravention of section 59', article 4, of the Constitution of the State of Missouri, and especially that part of said section of said article, which provides: ‘The General Assembly shall not pass any local or special law fixing the rate of interest,’ and in violation of sections 5973 and 5975, chapter 90, of the Revised Statutes of Missouri, 1899, and in conflict with section 3708, chapter 40, of the Revised Statutes of Missouri, 1899. That the Constitution and statutes aforesaid were all in full force and effect at all of the dates herein named. Plaintiff further states that said loan was not awarded by means of an auction and there was no competitive bidding therefor; on the contrary, defendant charged said premium through private contract with plaintiff and by an arbitrary demand of said thirty-five per cent per annum.”

On the part of the defendant the evidence tended to prove that at a regular monthly meeting on June 8, 1892, the executive committee presented an application from the plaintiff and her husband for a loan of $2200, more or less, to purchase a lot on the north side of Madison between 19th and 20th streets, and erect thereon a two-story brick stable with four living rooms above. The president, Mr. Hercules, offered $2200 more or less for sale to the highest bidder, and thirty-five per cent premium was offered by Mrs. Spithover; there being no higher bid, the president declared $2,200 more or less sold to Mr. and Mrs. Spithover at thirty-five per cent premium. It was then moved and seconded that the loan to Mr. and Mrs. Spithover be granted subject to the approval of the real estate and building committees and also subject to the borrowers paying into the association two years’ dues in advance on the number of shares borrowed on, and this motion was adopted.

Section 36 of the by-laws of the defendant corporation was offered by the plaintiff and read in evidence ; it was in these words: ‘ ‘ The funds of the association will arise from the collection of monthly dues, premiums on loans, fines and other sources. The money thus accumulated shall the second Wednesday in each month be put up at auction, and awarded to the shareholder who bids the highest premium for the same. Each stockholder is entitled to receive from the association a loan on real estate security of $240 for each share of stock he holds. The successful bidder shall be entitled to take at the premium bid, a loan on all the shares he holds. If there is not that much money on hand, the succeeding collections shall be placed to. his credit until his loan is all paid off. No loan shall be made to a second bidder on the same evening for a premium lower than the successful bid. The secretary may bid in any loan for any member requesting same and filing his application. All members desiring to take out a loan must file with the secretary an application as prescribed by law.”

It was admitted that the real estate upon which the loan was secured was the sole and separate property of the plaintiff. Other facts will he noted if necessary, in the course of the opinion.

It is obvious that the plaintiff based her claim for relief upon two substantive propositions, to-wit: that the loan which was made to her was not awarded at an auction of the money of the association, but was made through private contract, and secondly, that the statute (sec. 2814, E. S. 1889) which provided, “No premiums, fines or interest on such premiums that may accrue to the said corporation according to the provisions of this article shall be deemed usurious, and the same may be collected as debts of like amount are now by law collected,” is and was unconstitutional.

I. In regard to the first proposition that the money or loan was not awarded to her at an auction as required by the statutory provision in section 2812, Eevised Statutes 1889, there was .absolutely no proof worthy of the name which sustains her contention in this respect. The testimony of Mr. Kelly, the secretary of the association, and of Mr. Hercules, the president, as well as a record of the association made on the day the loan was awarded to her, contradicts her contention in this respect and the proof on her part utterly fails to substantiate her claim. She herself did not establish the truth of this allegation when she was a witness on the stand, and the deed of trust which she executed to secure the loan recites on its face “said premium having been bid at the rate of thirty-five per cent.” As to her insistence that Mr. Kelly and Mr. Hercules were not competent witnesses, it appearing that plaintiff’s husband acted for her on the occasion of the awarding of the loan on her bid, their competency, even if questioned at the proper time, was settled by this court In Banc in Southern C. S. Bank v. Slattery’s Admr., 166 Mo. 620.

To the further contention along this line, that there could be no fair letting under the association’s by-laws, section 36, no sncli question as that was presented to the circuit court, or passed upon by it. This by-law was introduced by the plaintiff, and it is perfectly obvious that it is not obnoxious to the criticism of the plaintiff. Her construction of this section is utterly untenable. It does not mean as she contends that there could not be a separate auction of different funds on the same night or same occasion. Her contention is that because Mr. Gregory had bid off a loan on that same evening therefore the separate auction subsequently had, at which she bid off the loan in suit, was contrary to the by-law and illegal. We think the by-law is not susceptible to any such construction.

We may also add in this connection that the point attempted to be made by the plaintiff in regard to section 35 of the by-laws, is wholly outside of the record in the case and was not involved in any manner, and was not before the circuit court, and was entirely unsupported by any evidence whatever.

II. Although section 2814 of the Revised Statutes of 1889 was enacted in 1879, and appears in the revision of 1879 as a new section, number 964, and is substantially in the same form in the revision of 1899, section 1364, its constitutionality has never been determined by this court. But the question of usury, as inhering in these building and loan contracts, has been the occasion of many decisions in our sister states upon the origin and character of such associations and especially as to the relation of a loan to the stock upon which it is based. And while there has not been perfect unanimity of opinion on the subject, a very large majority of the courts have upheld the constitutionality of statutes which are practically the same as section 2814, Revised Statutes 1889. Some of the courts, notably the Supreme Courts of Kentucky, South Carolina and North Carolina, treat the sale of the funds for premium as a subterfuge for charging usurious interest, and when the premium and the interest on a loan exceed the lawful legal rate prescribed by statute for all other loans the transaction falls within the penalty of the usury laws' and the association can only recover the lawful rate of interest on its loan or the amount actually advanced to the borrower, and the act of the Legislature, which permits such associations to exact from their borrowing members premiums in addition to the legal rate of interest, are in violation of constitutional provisions in those states which forbid the Legislature passing any local or special acts regulating the rate of interest. [Simpson v. B. & L. Association, 101 Ky. 496; Mills v. B. & L. Association, 75 N. C. 299; Association v. Bollinger, 12 Rich. Eq. (S. C.) 124.] A loan to members at a legal rate of interest with reasonable dues for the maintenance of the organization, however, has been held by these courts as not usurious. On the other hand, the Supreme Courts of Alabama, Georgia, Illinois, Indiana, Iowa, Michigan, Minnesota, Montana, Nebraska, Ohio, Virginia and "West Virginia have sustained statutes in all substantial respects like section 2814, Revised Statutes 1889, as constitutional, not inimical to our constitutional provisions against special legislation “fixing the rate of interest,” and not violative of the general provision of the Constitution of these states against the passage of any local or special law. Thus in Alabama, Sheldon v. Birmingham Association, 121 Ala. l. c. 284, the court said: “A by-law of the defendant exhibited in the bill provides: The amount paid into the treasury each month shall be sold to the highest bidder or bidders and any member taking an advance or loan shall allow the premium offered by him or her to be deducted as set forth in section 36, and shall secure the association for such advance or loan by bond or mortgage on stock of the association. The by-laws also provide: ‘None but members shall be allowed to bid for a loan or advance, ’ Under such system premi-urns result from competing bids of shareholders inter se for the privilege of receiving the loan and in one respect at least they stand upon a different footing from interest in that they are controlled by the competing members and not by the lending association. If the premium be treated as interest, the general interest rate of eight per cent may be exceeded in the interest charge, but the power given by the statute to the association and its members to so contract among themselves is not a special privilege in a sense obnoxious to the constitutional provisions looking to the conservation of equal rights. The peculiar plan of business they adopt and the mutual participation in the profits arising from it, mark building and loan associations as a class so distinct from ordinary lenders as to warrant the distinct legislative grant of the power to so regulate charges for an advance or loan. Besides the statute is general in its application in that it excludes no one from the right to enter into the relation of either a borrowing or non-borrowing stockholder, or from the right to organize under its provisions the class of corporations having such power to lend, and thereby to participate in the benefits conferred by the statute.” [Montgomery Association v. Robinson, 69 Ala. 413.]

The act incorporating building associations in the state of Illinois, approved April 4, 1872, contained a section, numbered 10, in almost the identical words of section 2814, Revised Statutes 1889, of this State, and on a bill charging usury because the bonus bid for the loan increased the interest beyond the legal rate, the Supreme Court of that state held-said section to be in violation of two sections of the Constitution of Illinois, namely that prohibiting the regulation of interest on money and that prohibiting the granting to any corporation any special or exclusive privilege by a special or local law. Afterwards, however, in Holmes v. Smythe, 100 Ill. 413, the same act came before the Supreme Court again and Mr. Justice Scholbield, wbo had written the previous decision of the court, ag’ain speaking for the court held that the act was a general law applicable to all citizens of the State who chose to bring themselves within the relations and circumstances provided for by it and is not within the prohibition of the Constitution (section 22 of article 4) which declares that the General Assembly shall not pass local or special laws “regulating the rate of interest on money” or “granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise whatever.”

In Iowa Savings and Loan Association v. Heidt, 107 Iowa l. c. 303, it was said: “First, it is said that the Building and Loan law of the State is unconstitutional, because it is class legislation. Some of the arguments advanced in support of this claim assail rather the policy of such statutes than the power to enact them. In theory these institutions are profit-sharing. The amounts directly paid for the use of money go indirectly to the benefit of the stockholders, through the increase in the value of their shares. Where the loans are confined to shareholders, we can see good reason for exempting such associations from the operation of the usury law. That the constitutional power exists to make this exemption, we think is without serious doubt. [Association, v. Billing, 104 Mich. 186; Trust Company v. Whithed, 2 N. D. 82; Archer v. Association, 45 W. Va. 37.] See, also, on the general character of these institutions and the reasons for special legislation in their favor, Hawkins v. Association, 96 Ga. 206; Association v. Monk, 30 Atl. 872; Association v. Shields, 71 Miss. 630.”

In Security Savings Association v. Elbert, 153 Ind. l. c. 202, the Supreme Court of that state said: “This court, since the McLaughlin case, 62 Ind. 264, has continued to recognize that the transaction between a borrowing member and his society is not a mere loan of money as between strangers. [Citing numerous Indiana cases.] That the transaction is not in its nature usurious, seems to be supported by the great weight of authorities. [Freeman’s note to Bank v. Cook, 46 Am. St. 200; 4 Am. & Eng. Ency. Law (2 Ed.), pp. 1054, 1056.] ”

See, also, a full review of the law of building and loan associations and the character of the applications between the stockholder and the association in Cook v. The Equitable Building & Loan Association, 104 Ga. 814, and in Patterson v. B. & L., 14 Lea (Tenn.) 677, in which those courts also held that a provision similar to section 2814, Revised Statutes 1889, is not unconstitutional.

It seems unnecessary to make further citations of authority along this line, and it is only necessary to add that the great weight of authority in this country is to the effect that a statute like ours, section 2814, Revised Statutes 1889, is perfectly constitutional and therefore the contract for premium at a public auction of the money is lawful and does not violate our general statute against usury.

The judgment of the circuit court was for the defendant, and in our opinion, was correct, and it is therefore affirmed.

Burgess and Foco, JJ., concur.