author: KENNISH, P. J. KENNISH, P. J.

text:
    THE STATE v. W. T. BRISCOE, Appellant.
    Division Two,
    November 14, 1911.

    1. DEMURRER: Filed After Arraignment. A demurrer to the information in a misdemeanor case after a plea of not guilty has been entered, without withdrawing the plea, is filed too late and cannot be considered on appeal.
    2. - — -: Constitutional Question. A demurrer to the information, which is not set out in the record proper, and which was not filed until after arraignment and a plea of not guilty, presents no constitutional question tp the Supreme Court for determination.
    3. MOTIONS: Filed After Judgment: Overruled and Second Judgment. Neither a motion non obstante veredicto, a motion for a new trial, nor a motion in arrest, filed after judgment and sentence, no application being made to the court to set aside the judgment and no request being made to defer judgment until the motions could be filed, presents any question that can be considered on appeal. Nor does the fact that, after these motions were filed and overruled, judgment was again entered, change the situation. The first judgment being a valid one, and not having been vacated or set aside, the second judgment, was a nullity.
    Appeal from St. Louis Court of Criminal Correction. —Son. Benj. J. Klene, Judge.
    Transferred to St. Louis Court of Appeals.

      Louis A. Steber for appellant.

      Elliott W. Major, Attorney-General, and James T. 'Blair, Assistant Attorney-General, for the State.

      Note. — Decided March 14, 1911. Motion for rehearing filed, and sustained. Opinion after rehearing, adhering to original opinion, filed.November 14, 1911.

   KENNISH, P. J.

On May 20th, 1910, an information was filed in the St. Louis Court of Criminal Correction, charging the appellant with conducting a barber college without a license.

On May 24th appellant was arraigned and entered a plea of not guilty. On June 6th he filed a motion to quash the information and also a demurrer to the information. On June 11th he withdrew the motion to quash and filed an amended demurrer to the information. Neither the demurrer nor amended demurrer is set out in the record. The amended demurrer having been overruled, the appellant was tried, convicted and his punishment assessed at a fine of ten dollars. Afterwards, while the defendant was present in open court, judgment was entered and sentence formally pronounced against him. Thereafter a motion non obstante veredicto, a motion for new trial and a motion in arrest of judgment, were in turn filed and overruled. After the filing and overruling of these motions, judgment was again entered and sentence again pronounced, but the first judgment was not set aside. It does not appear that any application was made to the court to set aside the first judgment, or that any request was made to defer judgment until the motions could be filed. Thereafter, upon the assumption that the case involved the constitutionality of the statute under which appellant was convicted, an appeal to this court was asked and allowed.

The Attorney-General has filed a motion to transfer the cause to the St. Lords Court of Appeals, upon the ground that no constitutional question investing this court with jurisdiction of the appeal was properly raised and preserved in the lower court.

Upon the record before this court the motion to transfer must be sustained.

The amended demurrer presents no constitutional question to this court for' determination. It is not set out in the record proper and for that reason alone cannot be considered. [State v. Earll, 225 Mo. l. c. 539.] Besides, it was not filed until after arraignment and plea of not guilty. A demurrer, in a case of misdemeanor, filed after a plea of not guilty has been entered, without withdrawing the plea, is filed too late and cannot be considered. [State v. Earll, 225 Mo. 537.]

Neither the motion non obstante veredicto, the motion for new trial, nor the motion in arrest was filed until after judgment. Neither of these motions, therefore, present any constitutional question that can be considered by this court on appeal. [R. S. 1909, sec. 5258; State v. Rosenblatt, 185 Mo. l. c. 117; State v. Pritchett, 219 Mo. l. c. 704; State v. Riley, 228 Mo. l. c. 433.]

The fact that a second judgment was entered after the filing and overruling of the motions, does not change the situation. The first judgment being a valid one, and not having been vacated or set aside, the second judgment was a nullity. [State v. Riley, 228 Mo. 431.]

Since the offense of which appellant was convicted is a misdemeanor, and since, so far as the record before us discloses, no constitutional question was raised and preserved at the trial, this court has no jurisdiction of the appeal.

The motion to transfer is sustained and the cause is transferred to the St. Louis Court of Appeals.

Ferriss and Brown, J J., concur.

ON REHEARING.

KENNISH, P. J.

This ease has been fully considered again upon a rehearing, with the result that we are constrained to adhere to the opinion heretofore delivered, sustaining the motion of the Attorney-General to transfer the cause to the St. Louis Court of Appeals.

The question is not whether this court will, as a matter of discretion, hear and determine this case upon its merits,. but rather, has the court authority to entertain appellate jurisdiction thereof?

The Constitution fixes the appellate jurisdiction of this court, and in a given case the record alone must determine whether jurisdiction on appeal is in this court or the Court of Appeals.

It is admitted that this court is withoutjurisdiction in this case unless a constitutional question was preserved for decision. Appellant seeks to meet this requirement by reliance upon an amended demurrer, a motion for a new trial and a motion in arrest of judgment, each of which presents a constitutional question, and if either is properly a part of the record which this court is authorized to consider, then there is no doubt as to our jurisdiction of the appeal. However, as shown in the opinion herein, the amended demurrer was filed after a plea of not guilty had been éntered, the plea not having been withdrawn. Under the ruling of this court in the case of State v. Earll, 225 Mo. 537, the demurrer thus filed cannot be considered. That leaves the motions for new trial and in arrest. The record explicitly shows that these motions were not filed until after final judgment and sentence had been pronounced, and under both the express provisions of the statute and the decisions of this court, such motions must be filed before judgment or they cannot be considered as a part of the record in the-cause.

In the conclusion reached we have not overlooked the ease of State v. Carson, 231 Mo. 1. That case is distinguishable from the case in hand, in that defendant Carson did not assent to judgment being pronounced, before the fifing of the motion for a new trial, but on the contrary objected and notified the court at the time that such motion would be filed within the time allowed by law.

Ferriss and Brown, JJ., concur.


source: Caselaw Access Project

author: KENNISH, P. J.

license: Public Domain

text:
    THE STATE, Appellant, v. ELMER MURRAY and H. F. SCHMIDT.
    Division Two,
    November 14, 1911.
    1. INFORMATION: Nuisance: Placing Dead Hogs in Highway. An information charging that defendants “did unlawfully remove and place a great number of dead hogs ... in and near a certain public road and highway,” which is particularly described, states facts sufficient to constitute a crime under the statute (Sec. 4795, R. S. 1909), which makes it an offense to “remove or cause to be removed and placed in or near any public highway any dead animal,” etc.
    2. CONSTITUTIONAL STATUTE: Title: Amendment. The catch words of See. 1574, R. S. 1879, were, “Putting Dead Animals in Well, etc.” The title of the amendatory act of 1881 was, “An Act to Amend Section 1574, Art. 8, Chap. 24 of the Revised Statutes, ‘Of'Putting Dead Animals in Wells,’ etc.” The subject of the section, before the amendment, was the prohibiting of nuisances in certain waters mentioned and in certain other places, including public roads. The amendment merely extended the scope of the law to other waters and other places'. Held, that the title of the amendment clearly expressed the subject-matter of the act, and was in entire harmony therewith.
    3. -: More Than One Subject: Amendment. Where the provisions of the amendatory act are directly related to each other and to the subject of the section amended, the amendment does not contain more than one subject.
    4. INFORMATION: Placing Number of Dead Hogs .and Chickens in Highway: Separate Offenses. The placing of each dead hog, dead chicken, dead turkey, in a public road is not a separate offense, and the information which charges that defendants placed “a number of dead hogs, dead chickens, dead turkeys ... in a certain public road” does not charge two or more offenses in the same count, where the placing of the several objects creating the nuisance is charged as one act committed at one time and place.
    5. -: Nuisance: Two Offenses: Placing Dead Hogs in Highway: Permitting Them to Remain There. Placing dead hogs in a public highway and permitting them to remain there up to the time of -filing the information do not constitute two offenses under the statute (See. 4795, R. S. 1909), and an information charging both is not duplicitous. It is essential to a conviction to prove that the dead animals were not only placed and removed to the highway, but that they were so placed or removed “to the annoyance of the citizens of the State.” The averment in the information that the nuisance is continued up to the filing thereof, is in conformity with approved precedents, but is not essential to a further prosecution for failure for three days after conviction to abate the nuisance, which is what the words “and if such nuisance be not removed within three days thereafter” mean.
    Appeal from Pettis Circuit Court. — Hon. Louis Hoffman, Judge.
    Reversed and remanded (with directions).

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State; Harvey D. Dow of counsel.
    (1) The amendment of 1881 does not contravene section 28, article 4, of the Missouri Constitution.. Burgdoerfer Case, 107 Mo. 30. (2) The amendment to the act of the Legislature, approved March 26, 1881 (Laws 1881, p. 114), prohibiting persons removing or placing in public roads or highways, or in the streams or water courses other than the Missouri or Mississippi rivers, is presumed to be constitutional. If there is a doubt existing as to the constitutionality of the act, it must be resolved in favor of its validity. Ex parte Loving, 178 Mo. 203. Every presumption is to be indulged in favor of the - validity of the act. State ex rel. v. Aloe, 152 Mo. 477; State v. Cantwell, 179 Mo. 261; State ex rel. v. Railroad, 48 Mo. 471; State ex rel. v. Pike County, 144 Mo. 280; Kesleart v. Shoer, 134 Mo. 10; County v. Griswold, 58 Mo. 192; State v. Walbridge, 119 Mo. 383; State v. Able, 65 Mo. 357; Manker v. Faulhaber, 94 Mo. 430; Endlich on Int. of Stat., see. 178, p. 246; Railroad v. Yan Horn, 57 N. Y. 473; French v. Teschemaker, 24 Cal. 518; Attorney-General v. Eau Claire, 37 Wis. 400; State ex rel. v. Shelton, 136 Mo. 429; Brown v. Buzan, 24 Ind. 194; Slack v. Jacob, 8 W. Ya. 612. (3) The title to the act does not violate section 28, article 4, of the Constitution. One of the purposes of this section is to prevent the vicious practice of conjoining in the same bill incongruous matter and subjects having no legitimate connection or relation to each other, and in no way germane to the subject expressed in its title. State ex rel. v. Heege, 135 Mo. 119; State ex rel. v. Banson, 73 Mo. 86; State ex rel. v. County Court, 102 Mo. 537; Knight Templars’ Indemnity Co. v. Jarman, 187 U. S. 206; State v. County Court, 128 Mo. 427; State ex rel. v. Bronson, 115 Mo. 271; State v. Miller, 45 Mo. 495. (4) Another acknowledged reason for section 28, article 4, found in the Constitution, was to have the title to an act to indicate the general contents of the bill, and contain but one general subject, which might be expressed in a few or greater number of words, if they did not mislead as to what the bill contained, and are not designed as a cover to vicious and incongruous legislation. St. Louis v. Witzel, 130 Mo. 616; Ewing v. Hoblitzelle, 85 Mo. 64; State v. Miller, 100 Mo. 439; Cooley’s Const. Lim. 175; People v. Mahoney, 13 Mich. 495; State v. Bengsch, 107 Mo. 105; State v. Bockstruck, 136 Mo. 335; Bishop’s Stat. Crimes (2 Ed.), sec. 36a. (5) Any section of the statute may be amended provided it be fully set forth. Sec. 34, Art. IY, Constitution 1875, State v. Thurston, 92 Mo. 325; State v. Hendrix, 98 Mo. 374; State v. Bennett, 102 Mo. 356. Where the amendatory act in its prefatory clause says that a certain section of the Be-vised Statutes is- amended*by adding certain words thereto, naming them, and the whole clause is set out in full, that clause of the Constitution referring to the amendment of statutes, by inserting or striking out words, is fully complied with. Cox v. Bailroad, 174 Mo. 588; State v. Merlin, 137 Mo. 297. (6) The information is not duplicitous. It would be impossible to charge this offense without charging that the offender removed, or caused to be removed, and placed the nuisance in or near a public road or highway or in any stream, etc. State v. Quinn, 94 Mo. App. 59; State v. West, 157 Mo. 309; State v. Hendrickson, 165 Mo. 262; State v. Hall, 164 Mo. 528; State v. Thierauff, 167 Mo. 429.

      Holmes Hall and George F. Longan for respondents.
    (1) Taking the statute as we find it, beginning with 1855 and down to and including the revision of 1879, a careful reading of the information will show that it does not state facts sufficient to constitute a crime, unless it be charged that dead animals, etc., were placed “in” a public road; and there was never any contention that any filth was placed “in” a public road, but that it was placed “near” a public road, which was not an offense under the statute up to and including the revision of 1879. (2) The amendment of 1881 (Laws 1881, p. 114) is in violation of the Constitution of Missouri, as the subject-matter of the bill introduced is not clearly expressed in its title. See. 28, Art. IV, Constitution; State v. Burgderfer, 107 Mo. 30; St. Louis v. Weitzel, 130 Mo. 600; State v. Coffee and Tea Co., 171 Mo. 634; Shively v. Lank-ford, 174 Mo. 535; State ex rel v. Vandiver, 222 Mo. 254. (3) If the information charges any offense at all, and respondents still contend it does not, two separate offenses are charged in each count. The putting of each dead hog, dead chicken, dead turkey, and each quantity of blood, offal and other filth near the public road (as charged in the first count of the information) or into a watercourse (as charged in the second count of the information) constituted a separate offense. And the information, in each count, further charges that defendants did then and there knowingly permit the dead hogs, etc., to “remain” in and near the public road” (first count) and to “remain in said ■watercourse” (second count) for a period of sixty days and from thence until the filing of the information, or from October until April, or a period of six months; and as the statute since 1865 has provided that if such nuisance is not removed in three days thereafter, it shall be deemed a separate offense, two separate alleged offenses are charged in each count— putting it there is one offense, and allowing it to remain three days is another. Bishop’s New Grim. Proc. (4 Ed.), see. 432; State v. Bridges, 24 Mo. 353; State v. Green, 24 Mo. App. 227; State v. Healy, 50 Mo. App. 243; State v. Harrison, 62 Mo. App. 112; State v. Boyd, 108 Mo. App. 518; State v. Boyd, 196 Mo. 60; State v. Fox, 148 Mo. 517; State v. Blakely, 184 Mo. 187.
   KENNISH, P. J.

This is an appeal from a judgment of the circuit court of Pettis county, quashing an information which charged the defendants with the misdemeanor of creating and continuing a public nuisance. An appeal was taken by the prosecuting attorney to the Kansas City Court of Appeals, in which court, on the motion of the respondents, the case was transferred to this court upon the ground that the appeal involved a construction of the Constitution of this State, and the case comes thus before us for decision. No question is raised as to the regularity of the appeal or as to the sufficiency of the record.

The information is in two counts, the first being as follows:

“Comes now Harvey D. Dow, Prosecuting Attorney for the State of Missouri, within and for the body of the county of Pettis, and upon his oath of office as such Prosecuting 'Attorney, informs the court:
“That, Elmer Murray and H. F. Schmidt on the - day of October, 1909, at the county of Pettis and State of Missouri, did unlawfully remove and place a great number of dead hogs, dead chickens, dead turkeys, blood and feathers, offal and other filth in and near a certain public road and highway there situate and running from the Sedalia and Longwood road to the new Sedalia and Beaman road, said strip of road being known as the old Sedalia and Beaman road; and did then and there knowingly permit and suffer the said dead hogs, dead chickens, dead turkeys, blood and feathers, offal and other filth then and there to remain in and near said public "road for the space of sixty days thereafter, and from thence until the filing of this information,, to the annoyance of the citizens of this State then and there upon said public road working, passing and repassing; contrary to the form of the statute in such cases made and provided; against the peace and dignity of the State.”

The second count charges an offense in the same form as the first, the only difference being that the place of the offense is alleged to be a certain watercourse and stream, instead of a public highway, as in the first count.

The information is based upon section 4795, Revised Statutes 1909, which provides: “If any person or persons shall put any dead animal, carcass or part thereof, the offal or any other filth into any well, spring, brook, branch, creek, pond or lake, every person so offending shall, on conviction thereof, be fined in any sum not less than ten nor more than one hundred dollars. If any person shall remove, or cause to be removed and placed in or near any public road or highway, or upon premises not his own, or in any of the streams or watercourses other than the Missouri or Mississippi river, any dead animal, carcases or part thereof, or other nuisance, to the annoyance of the citizens of this State, or any of them, every person so offending shall, upon conviction thereof, be fined for every such offense any sum not less than ten dollars nor more than fifty dollars, and if such nuisance be not removed within three days thereafter, it shall be deemed a second offense against the provisions of this section.”

The respondents’ motion to quash the information was as follows:

“Come now the above named defendants, and move the court to quash the information filed herein, for the following reasons, to-wit:
“First: Said information does not state facts sufficient to constitute a crime under the laws of the State of-Missouri.
“Second: Section number 2234 of the Revised Statutes of the State of Missouri of 1909, under which this action is brought, is unconstitutional and void, for the following reasons, to-wit:
“A. Said section is unreasonable.
“B. The title of the bill, introduced to enact said section into a law, did not clearly express the subject-matter of said section.
“C. Said bill contained more than one subject.
“Third. Said section is void for the reason that it is an attempt to enact a valid law, by amending an invalid and void law.
“Fourth. Said section, as it appears in the Revised Statutes of Missouri of 1899, has been changed without authority of the State Legislature.
• “Fifth. The offense charged in the information must be prosecuted by indictment and cannot be prosecuted by information.
“Sixth. Two separate alleged offenses are improperly joined in each count of said information.”

I. In support of the first ground of the motion to quash, respondents contend that the information does not state facts sufficient to constitute a crime under the Nuisance Statute as it stood from the date of its enactment in the year 1855 down to and including the year 1879. That part of the present statute upon which the charge was bottomed makes it an ofíense to “remove or cause to be removed and placed in or near any public highway any dead animal,” etc. The information charges that the defendants “did unlawfully remove and place a great number of dead hogs ... in and near a certain public road and highway,” which highway is particularly described. Every element of the statutory ofíense is charged in the information and with sufficient definiteness to meet all requirements of good pleading. And although we see no reason why the information should be tested by the Nuisance Statute of 1879, it does in fact charge an offense under that law. [Kelley’s Crim. Law and Prac., sec. 977; Sec. 1574, R. S. 1879.]

II. It is next contended that said section 4795 is unconstitutional for the reason that “the title of the bill introduced to enact said statute into a law did not clearly express the subject-matter of said section.” By reference to respondents’ brief we are informed that this ground of attack upon the law goes back to an amendment of the Nuisance Statute in the year 1881. The law, as it stood in section .1574, Revised Statutes 1879, so far as the facts of this ease are concerned, was substantially the same as the present law. The catch words of the section were, “Putting dead animals in well, etc.” The title of the amendatory act of 1881 was, “An act to amend section 1574, Art. 8, Chap. 24' of the Revised Statutes ‘Of Putting Dead Animals in Wells,’ etc.”

The subject of the section, before the amendment, was the prohibiting of nuisances in certain waters mentioned and in certain other places, including public roads. The amendment merely extended the scope of the law to other waters and other places, and was in entire harmony with the subject of the .section amended. Discussing the constitutional provision as to the title of an act amendatory of an existing section of the statutes, this court, in the case of State ex rel. v. County Court, 128 Mo. l. c. 440, said: “The practice of legislation by reference, to sections of the authorized version of the statutes (without other description of the subject of the amending act) has been followed quite generally in this State on the faith of the early rulings of the Supreme Court approving such methods of lawmaking. So much has been done, and so many rights have been acquired, on the basis of those rulings, that we hold that the question of their correctness ought not to be reopened at this day. We adhere to them and follow them as an expression of the settled law of Missouri. [St. Louis v. Tiefel, 42 Mo. 578; State v. Matthews, 44 Mo. 523; State ex rel. v. Ranson, 73 Mo. 78.]”

The act of 1881 was amendatory of a section of the existing law and dealt exclusively with the subject thereof, and therefore the title of the bill fully conformed with the constitutional requirement. [State ex rel. v. County Court, supra; State ex rel. v. Heege, 135 Mo. 112; State v. Smith, 35 Minn. 1. c. 261.]

III. There is no merit in the point that the act of 1881 contained more than one subject. The amendatory provisions of the act were directly related to each other and to the subject of the section amended. That is all the Constitution requires. [State v. Morgan, 112 Mo. 202; State v. Bennett, 102 Mo. 356; State v. Doerring, 194 Mo. 398.]

IV. The main ground upon which reliance is placed to uphold the judgment quashing the information is that “two separate alleged offenses are improperly joined in each count of said information.” In support of this point the first proposition urged in respondents’ brief is that the placing of each dead hog, dead chicken, etc., in the public road was a separate offense; and that as the information .charged the placing of a great number of said objects in said place, it charged a corresponding number of offenses in one count, and for that reason the information was properly quashed.

• Each count of the information charges the removing and placing of the several objects creating the nuisance as one act, committed at one time and place, and it is too plain for argument that this one act thus charged could not be split up into as many separate offenses as there were objects constituting the nuisance. [14 Ency. Pl. and Pr. 1100; 2 Bishop’s New Crim. Proc., sec. 867.]

A more serious question remains for consideration. The information first charges that the defendants removed and placed the alleged nuisance in and near the public road described. It then charges, in the same count, that the defendants knowingly permitted and suffered the said nuisance to remain in and near the said public road' for the space of sixty days thereafter, “and from thence to the filing of this information, to the annoyance of the citizens of the State,” etc. Respondents contend that the information thus charges two distinct offenses; one for the placing of dead animals in the road, and the other for permitting them to remain there.

A reading of the Nuisance Statute at once discloses the fact that it defines two separate and distinct offenses, one for putting dead animals, etc., in wells, and the other for removing or causing to be removed and placed in or near any public road or highway any dead animal, etc., to the annoyance of the citizens of the State; for which offenses different penalties are prescribed. So little have the two offenses in common that it is difficult to understand why they were not set out in separate sections. The charge in this ease is based upon the second offense defined in this statute. It is apparent that the offense defined in the first part of the section is complete as soon as the act creating the nuisance is performed, as in the case of an assault, a larceny or other crime of that class. Under the second part of the section it does not follow that an offense is committed by the mere removing or placing of the alleged nuisance in the place mentioned. . It is essential to charge, and the State must prove, that the alleged nuisance was not only placed in or removed to the place designated, but that it was so placed or removed “to the annoyance of the citizens of the State.” The section concludes with the clause, “and if such nuisance be not removed within three days thereafter, it shall be deemed a second offense against the provisions of this section.” In our opinion the words “three days thereafter” do not mean three days after the nuisance is created, but rather three days after conviction. This clause applies to the offense set out in the latter part of the section only, and in addition to the punishment in case of a conviction, it was intended to bring about the abatement of the nuisance, which fact is of at least as much concern to the public as the punishment of the defendant for having created the nuisance.

It was the practice under the common law, and is authorized by statute in a number of states, for the court to make it a part of the judgment in case of a conviction for creating a continuing nuisance, that the nuisance be abated by the defendant within a time fixed by the court, under penalty of punishment as for contempt. But in order to authorize the abatement of the nuisance, it was essential that the information contain a continuando; that is, an averment of the continuance of the nuisance until the finding of the indictment. The law upon this subject is concisely stated in 14 Ency. PI. and Pr. at page 1100, as follows: “If an abatement is sought, an averment of the continuance of the nuisance is necessary. But if punishment only is sought, such averment may be dispensed with.” [2 Bishop’s New Crim. Proc., secs. 394, 398, 870 and 871; 29 Cyc. 1288; Taylor v. People, 6 Parker’s Crim. Cases, 347; Ashbrook v. Commonwealth, 64 Ky. 139; Commonwealth v. Miller, 139 Pa. St. 77.]

The only difference between our statute and the common law procedure in such cases is that instead of the court being possessed of power to order the nuisance abated, as part of the judgment, the same result is sought to be reached by subjecting the defendant to punishment for a second offense, after failure to remove the nuisance within three days thereafter. And, in order to supply a basis for a prosecution for a failure to abate a continuing nuisance within three days after conviction, it is proper practice to plead a continuance of the nuisance from the time it was created until the filing of the information, as was done in this case.

The information is in exact accord with the form found in section 977 of Kelley’s' Criminal Law and Practice, a work of high authority on criminal law and forms of criminal pleading under the laws of this State, and we hold that but one offense is charged, and properly charged, in each count of the information. In what is said here we do not decide that in charging the offense defined in the second part of the section it is essential to plead a continuando in order to constitute a valid charge thereunder, nor that it is essential so to plead in order to furnish a basis for a subsequent prosecution for failure to remove the nuisance within three days after conviction. What we do hold is that the averment of such continuance of the nuisance is in conformity with approved precedents and does not .render the information duplicitous.

The judgment of the circuit court is reversed and the cause remanded, with directions- to overrule the motion to quash the information and to proceed with the trial of the case.

Ferriss and Brown, JJ., concur.


text:
    THE STATE v. ELBERT YOUNG, Appellant.
    Division Two,
    November 14, 1911.
    1. UTTERING FORGED DEED: Necessary to Prove Forgery. Where defendant is charged with knowingly having in his possession, with intent to defraud by uttering the same as true, a forged instrument, purporting to be a deed from Richard M. Boyle to defendant and purporting to convey certain lands to defendant, in order to sustain a conviction it is essential that the deed be shown to be a forgery. And where a number of witnesses testify that a man named Richard M. Boyle was in East St. Louis at the time the deed was executed and executed it there, and there is no evidence to the contrary, and there is no testimony to the effect that the Richard M. Boyle, in whose name the title to the lands described, appears of record, was not the man who was known by that name in East St. Louis and who executed the deed there, there is no proof that the deed was a forgery, and a conviction of having uttered a forged deed cannot stand.
    2. -: -: Forged Acknowledgment. Proof that the certificate of acknowledgment to a deed was forged is not proof that the purported grantor did not sign the deed.
    3. EXTRAJUDICIAL CONFESSION: Must Be Corroborated: Corpus Delicti. Testimony by a witness that defendant stated to her that he forged the deed, is what in law is termed an extrajudicial confession. Such testimony by a single witness, if uncorroborated, is not sufficient to sustain a conviction. Testimony of a confession of the crime charged, made out of court by the accused, must be supported by independent proof of the corpus delicti; that is, by proof that the crime was actually committed.
    4. SUSPICION AND CONJECTURE cannot take the place of substantial testimony tending to prove guilt.
    Appeal from Dent Circuit Court. — Hon. L. B. Woodside, Judge.

      Reversed.

      J. J. Cope and G. C. Dalton for appellant; Bland, Crites & Murphy of counsel.
    (1) Signing a deed, and taking and certifying an. acknowledgment to it, are separate and distinct acts. One is a private act, the other an official act; both cannot be done by the same person. And the forgery of a deed and the forgery of a certificate of acknowledgment to a deed are separate and distinct offenses. Sec. 4636, R. S. 1909; State v. Tobie, 141 Mo. 547; State v. Reed, 141 Mo. 546. The evidence of Abernathy that the certificate of acknowledgment was forged did not prove, or tend to prove, that the deed itself was forged. It was res inter alios acta, was wholly inadmissible, highly prejudicial to the defendant, and furnished impelling ground for a new trial. State v. Hyde, 234 Mo. 200. (2) There is no evidence whatever that the person who appeared in East St. Louis and introduced himself as Richard M. Boyle, was not Richard M. Boyle who was the apparent record owner of the lands described in the indictment, and described in the deed from Boyle to the defendant Young. (3) The evidence adduced by the State was insufficient to warrant a verdict of guilty, and the court should have granted defendant’s demurrer to the evidence, asked at the close of the State’s case, and especially should this have been done at the close of the whole case. Davis v. Thompson, 209 Mo. 192; Millikin v. Com. Co.,-202 Mo. 637.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    Instruction 2 told the jury that if the appellant knew the said deed was forged and falsely made, and that he had said deed in his possession with intent to defraud by uttering the same as true, they should find him- guilty. It is not necessary in an instruction to use the identical words of the statute, or that it should contain all the peculiarities of the criminal charge in the indictment. It is enough in this case that the uttering was done with intent to defraud. State v. Tobie, 141 Mo. 547.
   KENNISH, P. J.

At the November term, 1910, of the. circuit court of Dent county, the defendant was convicted of the offense of having in his possession a forged deed, with intent to defraud by uttering the same as true, in violation of the provisions of- section 4654, Revised Statutes 1909. His punishment was assessed at ten months’ imprisonment in the county jail, and he appealed to this court.

The indictment upon which the defendant was prosecuted contained two counts. The first charged him with having forged a deed, purporting to have been executed by one Richard M. Boyle, conveying to him, defendant, 1920 acres of land in Dent county, Missouri. The second count charged him with having possession of said deed with intent to defraud by uttering said deed as true. The case was submitted to the jury on the second count alone and a verdict of guilty was returned on that count.

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

Richard M. Boyle was the record owner of the land in question, having acquired title thereto by warranty deed in 1872. In December, 1906, the defendant filed in the office of the recorder of deeds of Dent county a warranty deed, purporting to convey the said lands to the defendant. This deed purported to have been executed by Richard M. Boyle of Pittsburgh, Pennsylvania, and to have been acknowledged before Pearl Abernathy, a notary public of St. Clair county, Illinois, with an office in East St. Louis. At the trial Abernathy testified that he did not take or certify the purported acknowledgment and that there was no other notary public in his county of the same name. A day or two before the deed was filed for record, the defendant was in the office of the recorder of deeds and asked the deputy recorder if he was up with his work, and was informed by the deputy that he was not. A day or two later he asked the same question and was told that the deputy was up with his work. He then filed the deed for record, remained in the recorder’s office while it was being recorded, assisted the deputy in comparing the deed with the record thereof, and received the deed back from the deputy. After the deed was recorded defendant and his wife conveyed a part of the land in question to other parties.

Mrs. Bertha Jackson testified that she was employed as defendant’s stenographer during a part of the year 1907. That in April or May of that year the defendant stated to her that he had cleared five thousand dollars on the Boyle land, and “that A. B. King and Ike Epstein had put him onto this land, and he said that there was a lot of crooked work done in it and the deed needed doctoring and he doctored it, and he said, ‘Oh, well, in other words, I forged the deed, but there is nobody in Salem smart enough to catch me in it,’ and he said also in that conversation that he knew a man that had all kinds of seals and that he could get a deed to any piece of land in Dent county that he wanted.”

Outside of this testimony of Mrs. Jackson there was no evidence introduced tending to show that the deed was a forgery. It was shown that the city directories of the city of Pittsburgh, Pennsylvania, published between 1872 and 1910, did not contain the name of Richard M. Boyle. The deeds to Boyle dated in 1872 referred to him as being of Alleghany, Pennsylvania, while the deed from Boyle to defendant referred to him as Richard M. Boyle of Pittsburgh, Pennsylvania.

At the close of the State’s evidence the defendant asked an instruction in the nature of a demurrer to the evidence, which was refused.

The testimony of the defendant was, in substance, as follows:

Defendant received the deed in East St. Louis, from a man who claimed to be Richard M. Boyle, paid him one hundred dollars therefor, had the deed recorded in Dent county under the circumstances stated by the deputy recorder and afterwards sold and conveyed part of the land to other parties. That part of the land conveyed by defendant to other parties was sold through an agent, and defendant delivered his deed from Boyle to this agent to be delivered to the purchasers of the land from defendant along with the deed from defendant. The negotiations for the purchase of the land by defendant from Boyle were opened by a letter written to defendant by his brother-in-law, a .man named Payne, living in St. Louis. Payne wrote defendant a letter suggesting that he come to St. Louis. Upon the receipt of the letter defendant went to St. Louis to see Payne. He was informed by Payne that a man in East St. Louis had for sale some land in Dent county in which defendant might be interested. Payne and defendant then went to the real estate office of Ashlock & Pewitt in East St. Louis, where they met Richard M. Boyle, and defendant made a contract with Boyle for the purchase of the land. On the following day defendant met Boyle at the same office and closed the trade. When defendant arrived at the office on the second trip Boyle was there with a deed which he had already signed and acknowledged before a notary public. The name of the grantee had been left blank. The defendant’s name was Inserted in the deed as grantee and he received the deed and paid Boyle the purchase price. The defendant’s account of the manner in which he obtained the deed was corroborated by Payne, Ashlock and Pewitt. Ashlock and Pewitt testified that a man claiming to be Richard M. Boyle came to their office and stated that he wanted to sell some land that he owned in Dent county. They communicated this information to Payne. Payne testified that when he received the information from Ash-lock & Pewitt he wrote a letter to defendant suggesting that the latter come to St. Louis; that defendant came to St. Louis and went with witness to the office of Ashlock & Pewitt in East St. Louis. Ashlock, Pewitt and Payne all gave substantially the same account of the subsequent transactions .between defendant and Boyle as was testified to by defendant. Several other.witnesses testified that a man who went by the name of Boyle, and claimed to have land for ‘sale in Dent county, Missouri, was frequently seen around the office of Ashlock & Pewitt at about the time of the date of the deed.

The defendant denied having any conversation with Mrs. Jackson, such as was testified to by her, and denied making the statements testified to by her concerning the deed. • He also testified that he discharged Mrs. Jackson a few' weeks after he employed her and that she was unfriendly to him for that reason.

It was also shown that Pearl Abernathy, the notary before whom the acknowledgment purported to have been taken', when first questioned about the acknowledgment, stated that he took the acknowledgment, and did not deny having taken it until he' was threatened with suit on his official bond for having taken and certified a false acknowledgment.

At the close of all the evidence, the defendant again asked an instruction in the nature of a demurrer to the evidence, which was refused.

The action of the court in refusing defendant’s peremptory instruction, asked at the close of all the evidence, is assigned as error. This instruction challenges the sufficiency of the evidence to warrant a submission of the case to the jury.

The defendant was presumed to be innocent of the crime charged against him, and unless there was substantial evidence of his guilt, the court, when requested, should have instructed the jury to return a verdict of not guilty. [State v. Crabtree, 170 Mo. 642; State v. DeWitt, 191 Mo. 51; State v. Francis, 199 Mo. 671; State v. Johnson, 209 Mo. 346; State v. Miller, 234 Mo. 588.

In the count’upon which the defendant was convicted he was charged with, the felony of knowingly having in his possession, with intent to defraud by uttering the same as true, a forged instrument, purporting to be a deed from Richard M. Boyle to Elbert Young and purporting to convey certain lands in Dent county, particularly described in the indictment. It was of the essence of this charge that the deed thus described, as being in the possession of the defendant, was a forgery, and it was essential to conviction that evidence should have been introduced to that effect. The testimony of a number of witnesses appears in the record, tending to prove that a man named Richard M. Boyle was in East St. Louis and executed the deed described. There is no evidence to the contrary. It is true the notary, before whom the deed purported to have been acknowledged denied at the trial that he had taken the acknowledgment of Richard M. Boyle to that deed, but, assuming this testimony to be true and that the notarial certificate to the deed was forged, it does not follow that Richard M. Boyle did not sign the deed. If the Richard M. Boyle in whose name the title to the lands described appears of record was not the man who was known by that name in East St. Louis and who executed this deed, as the defendant claims, what testimony of that ■fact is there in this record? Clearly there is none. In order to prove that the deed was a forgery and not the act of Richard M. Boyle it was necessary, under the indictment in this case, to show that there was such a person in existence and that this deed was not his act. There is an entire absence of such testimony in the record.

One witness, Mrs. Bertha Jackson, who had been in the employ of the defendant as a stenographer, testified that the defendant admitted to her that he had forged the deed. This testimony, if true, amounted to a confession of guilt by the defendant, and is what is termed in law an extrajudicial confession. The question is thus presented whether such testimony, uncorroborated as to the forgery, is sufficient to sustain a conviction.

It is a settled rule of criminal procedure that testimony of a confession of the crime charged, made out of court by the accused, must be supported by independent proof of the corpus delicti; that is, by proof that a crime was in fact committed. [Robinson v. State, 12 Mo. 592; State v. Scott, 39 Mo. 424; State v. German, 54 Mo. 526; State v. Coats, 174 Mo. 396; State v. Henderson, 186 Mo. 473; Kelley, Crim. Law and Prac., sec. 281; 12 Cyc. 483.] Such testimony is not found in this case, and without it a conviction cannot be upheld.

The testimony of the witnesses as to what occurred in East St. Louis, with reference to the deed in question, arouses a strong suspicion of criminal conduct on the part of those participating in the transaction, but suspicion and conjecture cannot take the place of substantial testimony tending to prove guilt and meeting the requirements of the law. It is only upon substantial evidence, and not mere circumstances of suspicion, that a charge of crime can be sustained, and because of the absence of such evdence in this case the court should have directed a verdict of acquittal. The judgment is reversed and the defendant discharged.

Ferriss and Brown, JJ., concur.


author: BROWN, J.

text:
    THE STATE v. GEORGE WILLIAMS, Appellant.
    Division Two,
    November 14, 1911.
    1. ALTERING MARKS OF HOGS: Crime Committed Before Change in Statute: Misdemeanor: Limitations. A defendant charged in August, 1910, with having, in March, 1909, féloniously changed and altered the marks of two hogs of the value of fifteen dollars, could not be convicted of a felony, under See. 4541, R. S. 1909, which makes such an offense a misdemeanor. Under the law in force in March, 1909, the offense was only a misdemeanor; and the information not having been filed for seventeen months after the crime is alleged to have been committed, is barred by the Statute of Limitations.
    2. -: -: Punished as for a Felony. Under the statute in force in March, 1909, it was only a misdemeanor to steal hogs of less value than thirty dollars; and the statute (See. 1903, R. S. 1899) leveled against the crime of altering the marks of hogs prescribed that persons adjudged guilty of violating its provisions should be punished in the same manner as if they had “feloniously” stolen the hog whose mark they had wrongfully altered. But the use of the word “feloniously” therein cannot be held to mean that it is made a felony by that statute to alter the marks of hogs of less value than thirty dollars. Said section 1903 was enacted in 1835, when it was a felony to steal hogs of any value whatever. But in 1879 the law defining larceny was amended, by reducing the punishment for the theft of hogs of a less value than thirty dollars from a felony to a misdemeanor, and that law remained the same until 1909, and section 1903, though its words have remained unchanged, refers, for the measure of punishment, to the general laws fixing the penalities for grand and petit larceny; it does not, by the use of the word “feloniously,” placed in it prior to the amendment of 1879, designate the punishment for its violation.

      3. -: -: Rule of Construction: One Statute Adopting Another Amendment. Wien a statute like Sec. 1903, It. S. 1899, declaring that the crime of altering the marks of hogs shall be punished in the same manner as if the accused had “feloniously” stolen the hogs) refers to the general provisions of the law on a given subject for its interpretation, an amendment of the general laws on that subject effects a corresponding amendment of the statute adopting them.
    Appeal from Dent Circuit Court. — Hon. L. B. Woodside, Judge.
    Reveksed.

      J. J. Cope and C. C. Dalton for appellant.
    The court erred in overruling the motion to quash the information and in overruling the demurrer to the information. The information on its face discloses the fact that the same was not filed, nor the defendant charged, for eighteen months after the alleged offense is said to have been committed. Certainly the marking of hogs only of the value of fifteen dollars, as alleged in the information, is nothing more than a misdemeanor. -While it may be said that the punishment for the offense may be such as that prescribed for a felony, yet before the State is entitled to claim such severe punishment the charge should be made and the information filed within twelve months from the commission of the offense. This case- is not on all-fours with the case of the State v. Zehnder, 228 Mo. 310. In that ease the defendant was charged within the twelve months after the commission of his offense. And now here the defendant claims that the most that can be claimed by the State is that to steal, or mark with intent to steal, these two hogs of the value stated in the information is but a misdemeanor; and before the State can avail itself of any kind of punishment it must come within the rule and make the charge within the time, which is within twelve months from the date of the alleged offense. Under this statute all that can be possibly sustained by the State in the way of punishment would be a punishment as for a felony; yet it only being on its face,- from this record, a misdemeanor. And being such the same is barred by the Statute of Limitations; for the reason the prosecution was not commenced in proper time. R. S. 1899, sec. 1908.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    The grounds of the demurrer are that the offense having been committed in March, 1909, and the information not having been filed until August 15, 1910, one year and six months after the alleged offense was charged to have been committed, the same was barred by the Statute of Limitations. The appellant contends that a misdemeanor is charged in the information, and that the Statute of Limitations had barred the prosecution. The court properly overruled the demurrer. Sec. 4541, R. S. 1909; State v. Zehnder, 228 Mo. 310.
   BROWN, J.

Defendant was convicted of the crime of altering the marks of two hogs, the property of another; and from a judgment fixing his punishment at two years in the penitentiary, appeals.

The information is bottomed on section 1903, Revised Statutes 1899 (now sec. 4541, R. S. 1909), and charges that defendant in the month of March, 1909, feloniously changed and altered the marks of two hogs of the value of fifteen dollars, the property of one Jesse Beasley.

The defendant seeks a reversal of the judgment on the ground that the crime of which he was convicted was at the time of its commission, only a misdemeanor, and was barred by the Statute of Limitations when the information was filed.

The evidence of the prosecuting witness shows that the alleged crime was committed in March, 1909, while the information was not filed until August 15, 1910, some seventeen months thereafter. The ease turns upon whether the defendant committed a felony: or a misdemeanor.

Under the criminal laws which were in force in this State in March, 1909, it was only a misdemeanor to steal hogs of less value than thirty dollars. [Secs. 1898 and 1910, R. S. 1899.] At that time, the law levelled against the crime of altering the mark of hogs prescribed that persons adjudged guilty of violating its provisions should be punished in the same manner as if they had “feloniously” stolen the animal upon which the mark was wrongfully altered. [Sec. 1903, R. S. 1899.]

The word feloniously used in the last named section lends some color to the contention of the State, that while it was only a misdemeanor to steal hogs of the value of fifteen dollars in March, 1909, it was at that time a felony to attempt to steal hogs of that value by unlawfully altering the marks thereof.

Section 1903, Revised Statutes 1899, was enacted at a time when it was a felony to steal hogs of any value whatever. [R. S. 1835, p. 178.] However, the law defining grand larceny was amended in 1879, whereby the punishment for the theft of hogs of a less value than thirty dollars was reduced from a felony to a misdemeanor. [Sec. 1307, R. S. 1879.] It remained in that condition until defendant committed the crime of which he was convicted.

Section 1903, Revised Statutes 1899, under which defendant was convicted, does not designate the punishment for its violation, but refers, for measure of punishment, to the general laws fixing the penalties for grand and petit larceny; consequently when the laws governing grand and petit larceny were amended in 1879, said section 1903, Revised Statutes 1899, was thereby amended to conform to the laws which designated the penalties for its violation.

The rule of construction where one statute adopts another, is that, if the adopting statute specifically designates the title or date of the statute adopted, then the repeal or amendment of the statute thus adopted will not affect the adopting statute. [Culver v. People, 161 Ill. 89.]

When a statute like the one now under consideration refers to the general provisions of the law on a given subject for its interpretation, then an amendment of the general laws on that subject effects a corresponding amendment of the statute adopting them. [2 Lewis’s Sutherland on Statutory Construction, (3 Ed.), p. 790, sec. 406.]

■ In 1891 a special election was held in Jasper county to authorize the county court of that county to levy a tax to erect' public buildings. The law authorizing such special election provided that it should be held in all respects the same as elections for state and county officers. Said election was held in conformity with the law in force at the time said law providing for special elections was enacted, and not in conformity with the Australian Ballot law, which had been subsequently enacted in this State. In the case of Gaston v. Lamkin, 115 Mo. 29, we held that said special election was void, and did not authorize the levy of a tax, because it was not held in conformity with the Australian Ballot law. The same rule of law was announced by this court in the case of St. Louis v. Gunning Co., 138 Mo. 347, wherein it was held that a law which provided that appeals from police judges should be governed by the same statutes as appeals from justices of the peace, meant that the law in force concerning appeals from justices of the peace at the time the appeal was taken should govern appeals from police judges.

In the case of Newman v. North Yakima, 7 Wash. 221, a special act of the Legislature of the Territory of Washington provided that taxes might be levied by the city of North Yakima, in accordance with existing general laws on that subject. In that case it was said: “By this act of incorporation it was provided' only that certain things in connection with the levy and collection of taxes should be done in accordance with the provisions of the existing law, and in some places the term0 used was that the act should be done in accordance with the provisions of the law now in force, or words to that effect. But in none of the references thus made was there any special act, section or provision of the general law set out or indicated. And taking all of such references and construing them together we feel compelled to hold that the Legislature thereby intended simply to provide that such acts should be done in accordance with the provisions of the general law in force at the time of the doing thereof.”

The unlawful act of defendant in altering the marks of hogs of the value of fifteen dollars amounted only to an attempt to steal said hogs; that is, an attempt to commit petit larceny, which, if it had resulted in the theft of the hogs, would have amounted to a misdemeanor. Therefore, the information only charges a misdemeanor, and as that misdemeanor was commited more than one year before the information was filed, it was clearly barred by the Statute of Limitations. [See. 2420, R. S. 1899, now Sec. 4946, R. S. 1909.]

It follows that the trial court erred in overruling the demurrer to the information and in failing to direct the jury to acquit the defendant.

We are aware that this court in the recent case of State v. Zehnder, 228 Mo. 310, held that the act of unlawfully marking hogs of less value than thirty dollars was a felony. To reach that conclusion it was necessary for the court to hold that the use of the word “feloniously” in said section 1903, Revised Statutes 1899, manifested a clear legislative intent to make the unlawful marking or altering the mark of animals a felony, regardless of the value of said animals. ‘And this court in that case must have also held that the words, “he shall be ... . punished in the same manner as if he had .... stolen said animals” did not refer to the general statutes fixing the penalty for stealing animals.

In 1835 when said section 1903 was first placed upon the statutes (R. S. 1835, p. 178), the stealing of hogs of any kind or value was punishable by imprisonment in the penitentiary for a term of five years, while the punishment for stealing a horse was fixed at seven years. [Sec. 31, p. 177, R. S. 1835.]

It does not seem probable that the Legislature intended to prescribe the same penalty for unlawfully marking a hog as for unlawfully branding a horse; yet that must be the conclusion if we hold that section 1903, supra, does not refer to the general statutes concerning larceny for the measure of punishment for its violation.

It is apparent that the word “feloniously” as it occurred in section 35, page 178, Revised Statutes 1835, did not add anything to the meaning of that statute. Under said section as it stood in 1835, it would have been a felony to unlawfully mark a hog, even if the word “feloniously” had been entirely omitted from said section; consequently, we see no reason why special stress , or significance should be placed upon that word as it now appears in the statute, when to do so places said section out of harmony with the great body of our criminal law, which almost invariably prescribes the same or a lighter punishment for attempting to commit a crime than for the actual commission of such crime. [See. 4894, R. S. 1909.]

The judgment of the circuit court is reversed, and the defendant discharged.

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


author: FERRISS, J.

text:
    THE STATE v. HENRY DUVENICK, Appellant.
    Division Two,
    November 14, 1911.
    1. INFORMATION: Two Counts: One Transaction: Election. Where the'information consists of two counts, charging different offenses, both being based on the same transaction, no election can be required before the introduction of evidence. Where the information, in the first count, charged defendant with felonious assault with a deadly weapon, and, in the second, with feloniously and unlawfully exhibiting a deadly weapon in á rude, angry and threatening manner, both counts being based on the same transaction, etc., the court does not err in overruling, before the introduction of evidence, defendant’s motion to require the State to elect upon which count it would proceed to trial.
    2. -: -: -: -: Withdrawal by Formal Instruction. Where the State at the close of the evidence elects to proceed on only one of the two counts in the information, the court does not commit reversible error, in failing to withdraw the other count from the consideration of the jury by a formal instruction — especially where the jury are instructed in terms upon the other count only, and defendant asks no such instruction.
    3. EXHIBITING DEADLY WEAPON: Justification: Instruction: Exception. Where there is no evidence of any circumstance that would justify the exhibition of a deadly weapon, an instruction on the subject of exhibiting a deadly weapon in a rude, angry and threatening manner, otherwise free from objection, is not erroneous because it fails to state what circumstances would justify the exhibition of a deadly weapon in the presence of another.
    4. WHEN LAWS WENT INTO EFFECT: In Force at Time Offense Was Committed. Laws passed at the 1909 session of the Legislature went into effect ninety days after the adjournment of the Legislature, namely, on August 16, 1909. An offense committed on October 25, 1909, in violation of an act passed at the 1909 session of the General Assembly, was in violation of a law in force at the time the offense was committed.
    5. INFORMATION: Omission of Letter t from Word Against. The omission of the letter t from the word against, in the concluding clause of the information, reading, “Agains the peace and dignity of the State,” was obviously a clerical error, and did not invalidate the information.

      Appeal from Moniteau Circuit Court. — Hon. Wm. H. Martin, Judge.
    Affirmed.

      J. W. Hunter and R. M. Embry for appellant.
    (1) The constitutional provision that all indictments shall conclude with the words, “against the peace and dignity of the State,” is mandatory. “Agains” the peace and dignity of the State, does not comply with this mandate. State v. Campbell, 210 Mo. 202; State v. Lopez, 19 Mo. 254; State v. Clevenger, 25 Mo. App. 653; State v. Pemberton, 30 Mo. 376; State ,v. Stacy, 103 Mo. 11; State v. Ulrich, 96 Mo. App. 689." (2) The information can not be upheld on the ground that the word “against” is only misspelled. The word “agains,” is not an abbreviation of the word “against” and there is no such word in the English language as “agains.” State v. Mitchell, 25 Mo. 420; State v. Pairlamb, 121 Mo. 137; State v. Clinkenbeard, 135 Mo. App. 189. (3) At the conclusion of all the evidence, defendant asked that the State be required to elect on which count it would ask a verdict, and the court, in the presence of the jury, stated that' there was evidence under which the defendant might be convicted of the charge in either count, this was in the presence of the jury, and in the nature of a verbal instruction to the jury, and a comment on the evidence. After the State dismissed as to the first count, the jury was not informed by instruction that it had so dismissed and the jury was not instructed that they could not convict under the first count, but could convict under the second count. State v. Carragin, 210 Mo. 351; R. S. 1909, sec. 5244; State v. DeMasse, 98 Mo. 340.

      Elliott W. Major, Attorney-General, and Campbell Cummings, Assistant Attorney-General, for the State.
    (1) Appellant’s second and third grounds, that the second count of the information does not conclude with “against the peace and dignity-of the State,” is without merit. In the information in the record the word “agains” is used instead of “against,” and the inadvertent omission of the letter “t” is made the basis of appellant’s claim. This is a trivial matter of form merely and in no way could it have possibly prejudiced any of the substantial rights of the defendant upon the merits. It is a substantial compliance with the language of the Constitution (Art. 6, sec. 38). Such a slight and trivial deviation from the exact form prescribed in the Constitution could not invalidate the information. It conforms in sense and substance. It is idem sonans. It does not alter the phrase in the least. Appellant evidently presumes this point is decided by the eases of this court which have held that the omission of the word “the” from the constitutional language is fatal. State v. Warner, 220 Mo. 23; State v. Campbell, 210 Mo. 202; State v. Skillman, 209 Mo. 408. But a reading of the full and thorough decision in the Campbell case, supra, will readily show that the reasoning of the above and similar cases can avail him nothing. The only case that we have been able to find in the slightest degree in point in a wide search of the authorities, is the highly technical case of Bird v. State, 37 Tex. Crim. 408. In this ease, supra, the two letters “ag” were omitted in the word “against,” using the word “ainst,” which the court of Criminal Appeals of Texas said is not idem sonans, and has no meaning at all. The word “agains” and “against” are certainly idem sonans, and the meaning is clear and a substantial compliance with the Constitution in both substance and form. Our courts have uniformly held that any change in the phrase that does not enlarge, change or vary the phrase or the sense is immaterial. State v. Campbell, supra; State v. Hays, 78 Mo. 603. When a word necessary and essential to properly charge the statutory offense is misspelled in an indictment, it is not thereby vitiated where the meaning is plain and the word used is idem sonans. State v. Lucas, 147 Mo. 70; State v. Colly, 69 Mo. App. 444. (2) Appellant’s first ground in his motion in arrest is, “Because the second count in the information in this cause does not charge defendant with violation of the law of the State in force at the time the alleged offense is charged to have been committed.” The question is, Was the law of 1909, p. 452 (R. S. 1909, sec. 4496) in* force on October 25, 1909? The act was not a revision measure, was not passed by revised bill, but á new and independent act passed at a revision session affecting but two sections and but one subject. Section 15 of appellant’s evident claim is that the Declaratory Act (Laws 1909, p. 643) postponed the taking effect and being in force of the new Weapon Act (Laws 1909, p. 452) until November 1, 1909. In discussing the question it is well to bear in mind the following facts: The new Weapon Act, without an emergency clause, was passed and approved April 28, 1909. The Declaratory Act, with an emergency clause, was passed and approved and went into effect June 4, 1909. Section 15 of the Declaratory Act fixed the going into effect of the Revised Statutes, November 1, 1909. The Legislature adjourned, May 17, 1909. Ninety days thereafter was August 16, 1909. Appellant’s offense occurred October 25, 1909. The true intent of the Legislature, and the only effect of that part of the Declaratory Act, is to name November 1st as being the day when the Revised Statutes of Missouri for 1909 would be born and have life and effect as such. Prom that day on they will be evidence of the Revised Statutes of 1909, and can be cited, used and quoted as such. And the Declaratory Act is then consistent and in harmony with section 4178, R. S. 1899, and not otherwise. The main object of the revision was to incorporate all the existing statutes in three volumes, that a person desiring to know the written law upon any subject might learn it by an examination of one of those volumes, without the necessity of referring to many prior statutes upon the subject. Hamilton v. Rathbone, 175 U. S. 414; 36 Cye. 1166. (3) No specific instruction. or even request was asked, no motion made, withdrawing the evidence admitted under the first count'of the information, and appellant did not preserve an exception to the failure of the court to instruct the jury on all necessary questions of law arising in the trial. State v. Espenschied, 212 Mo. 215; State v. George, 214 Mo. 262; State v. Sassaman, 214 Mo. 695; State v. Coleman, 186 Mo. 151; State v. Goldsby, 215 Mo. 48. Moreover, it could have been only harmless error, as defendant was convicted on the second count. State v. Sharpless, 212 Mo. 176. The “asking” by counsel to compel the State to elect, and the court’s answer to said counsel could not be considered as an oral instruction to the jury, but even if so, appellant saved no exception to .the action of the court in giving oral instructions. State v. DeMasse, 98 Mo. 340. The defendant gave no evidence that he came within any of the exceptions mentioned in the proviso clause and there was no such evidence in the entire bill of exceptions. Likewise, none that would justify the exhibition of the weapon. Therefore, there was no ground for submitting to the jury what circumstances would have justified its exhibition. Besides, such would have been an affirmative defense for appellant to have shown. State v. Livesay, 30 Mo. App. 633; State v. Hovis, 135 Mo. App. 544; 5 Am. & Eng. Ency. Law (2 Ed.), p. 735; State v. Cousins, 131 Mo. App. 617; State v. Reed, 140 Mo. App. 251. Such, an issue was not in the evidence and so the court should not have given an instruction thereon. State v. Hudspeth, 150 Mo. 12; State v. Chambers, 87 Mo. 406; State v. McCaffery, 225 Mo. 617; State v. Groves, 194 Mo. 452; State v. Clark, 221 Mo. 391; State v. Riley, 100 Mo. 493.
   FERRISS, J.

At the January term, 1910, of the circuit court of Moniteau county, the prosecuting attorney, by leave of court, filed his third amended information in two counts, the first of which charged the defendant with felonious assault with a deadly weapon, and the second, with feloniously and unlawfully exhibiting a deadly weapon in a rude, angry and threatening manner, in the presence of one B. F. Brockhausen; both counts being based upon the same transaction.

Before proceeding to trial, the defendant, by counsel, moved the court to require the State to elect upon which count in the information it would proceed to trial, which motion was overruled, the defendant duly excepting.

At the close of the evidence the State dismissed as to the first count, and elected to stand upon the second count. The trial resulted in defendant’s conviction, his punishment being assessed by the jury at a fine of seven hundred dollars. Judgment was pronounced in conformity to the verdict, from which judgment defendant appeals.

The evidence for the State was, in substance, as follows:

On the evening of October 25, 1909, B. F. Brockhausen, the prosecuting witness, was leaving the defendant’s premises at California in said county, on his way home, when he heard some one halloa to him to. stop and throw up his hands. He did not at first think that he was the party so addressed, and did not stop until he heard the call two or three times. He then looked around, and saw the defendant within twenty feet of him, with a loaded revolver pointing at him. Defendant told Brockhausen to walk into his (defendant’s) house, and Brockhausen did so. When inside he was commanded by the defendant to sit down, the defendant pointing his revolver at him at the same time. Being asked by Brockhausen what he wanted with him, defendant said, “You know what •you have been doing,” but made no further explanation. Brockhausen testified that he “tried to argue the matter” with defendant, telling him that he had done him, no harm and could not understand why he so treated him; that Mrs. Brockhausen came in from her home near by and asked her husband what he was doing .there, and received the answer that he was not there because he wanted to be, but because defendant ordered him to come to his house at the point of a revolver; that she then asked defendant why he should , treat her husband in such a way, and that defendant answered, “I saw him leaving my house — that is why I want him here;” that after some further talk defendant said he didn’t need a revolver for Brockhausen, and laid it upon a dresser, but immediately took it down again, and then ordered both of them from the house. Mrs. Brockhausen’s testimony substantially corroborated that of her husband, but she testified that the defendant did not have the revolver pointed at her husband at the time she entered the room; that defendant held the revolyer in his left hand, flourished it and laid it up when she came in.

The evidence for the defense, which consisted of the testimony of the defendant and his two sons, was in substance a denial of any show of anger on the part of the defendant, and of his having pointed the revolver at the prosecuting witness. One of defendant’s said witnesses testified that defendant first asked Brockhausen to stop, and that Brockhausen answered, “You can’t make me stop,” whereupon the defendant took a revolver from a tree on his premises, held it in his hand, and told Brockhausen to go into the house with him.

It appeared from the evidence for the defendant. that the prosecuting witness had advised defendant’s wife to leave him, and the defendant testified that when he stopped Brockhausen and asked him to go into the house with him, his object was to get Brockhausen to explain why he was trying to break up his family.

We will take up the objections made by defendant in his motions for a new trial and in arrest.

I. The complaint that the verdict is against the evidence is without foundation. There is ample evidence to sustain the verdict.

II. Defendant complains because the court did not compel the State to elect on which count in the information it would go to trial before the evidence was submitted to the jury. On this point it is sufficient to cite the following from the case of State v. Sharpless, 212 Mo. l. c. 203: “Counsel for appellant complain at the action of the court in refusing to compel the State to elect upon which count of the information it would proseeute the defendant. It is sufficient to say of this complaint that this court has repeatedly announced that it is not error to refuse an election where the several counts refer to the same transaction, and as applicable to this case, the record discloses that the defendant was only convicted upon the second count; therefore there is no ground of complaint which can be successfully directed to the action of the court upon the first count. [State v. Schmidt, 137 Mo. 266; State v. Houx, 109 Mo. 654; State v. Pratt, 98 Mo. 482.]”

In the Houx case, supra, (l. c. 660), this court said: “Whether the State should be required to elect upon which count in an indictment it will proceed to trial is regulated in all cases by sound judicial discretion, but, as a rule, no election will be required when the different counts relate to but one transaction.”

It is a rule of practice, well established, in both civil and criminal cases, that where the same transaction is stated in different counts, no election can be required before the introduction of the evidence.'

III. Defendant further complains that when the State elected at the close of the evidence to proceed upon the second count only, the court failed to withdraw the first count from the consideration of the jury by a formal instruction to that effect. We think no such instruction was necessary. The State dismissed as to- the first count, and the court instructed the jury in terms upon the second count only, beginning the instruction with the words: “On the second count the court instructs you as follows.” There is therefore no foundation for the claim that the- jury might have convicted on the first count. Furthermore, the record shows that no request was made by the defendant to instruct the jury on this point, and no exception was saved to the action of the court in failing to do so.

IV. The fourth instruction is as follows:

“On the second count the court instructs you as follows: First. The court instructs the jury that if you believe and find from the 'evidence that the defendant, Henry Duvenick, at the county of Moniteau and State of Missouri, on the 25th day of October, 1909, did feloniously and unlawfully, in the presence of B. F. Brockhausen,.exhibit a deadly weapon, to wit, a loaded pistol, in a rude, angry or threatening manner, and that said pistol was then and there a firearm, you will find the defendant guilty, and assess his punishment at imprisonment in the penitentiary for a term of two years, or by a fine of not less than one hundred dollars, nor more than one thousand dollars, or by imprisonment in the county jail not less than fifty days, nor more than one year, or by both such fine and imprisonment.”

This instruction properly defines the offense, and is not susceptible to criticism because it failed to state what circumstances would justify the exhibition of a deadly weapon, there being no evidence upon which such exception could be based.

V. In his motion in arrest defendant contends that the information does not charge the defendant with a violation of any law of the State in force at the time the alleged offense is charged to have been committed.

The offense charged in the information was created by an act passed in 1909 (Laws 1909, p. 452), which in effect amended the law as it formerly stood. In the case of State v. Schenk, decided at this term, and not yet -officially reported, we have fully discussed the question as to when laws passed at the 1909 session of the Legislature went into effect, and under our holding in that case the act in question went into effect ninety days after the adjournment of the Legislature. Reference may be had to the opinion in that case for a full discussion of the subject. The offense having been committed on' the 25th day of October, 1909, it was subject to prosecution under the Act of 1909, which went into effect August 16, 1909.

VI. Complaint is made that the letter t is omitted from the word “against” in the closing line of the information, so that the line reads, <?agains the peace and dignity of the State.” We consider this objection unworthy of serious consideration or discussion. Just complaint could be made that our system of jurisprudence is artificial and inadequate were we to hold that this information is bad because of the absence of one letter from one word in the clause, “against the peace and dignity of the State;” .a clause which, although required by our Constitution, adds nothing to the substance of the information, and is indeed but a superflous survival of an ancient form of pleading. The omission of the letter t is obviously a clerical error, and, furthermore, agains is idem sonans with the word “against.”

Ending no error in the record, the judgment is affirmed.

Kennish, P. J., and Brown, J., concur.


text:
    THE STATE v. E. A. DUNCAN, Appellant.
    Division Two,
    November 14, 1911.
    1. INFORMATION: Charging Felony. An information charging that defendant “in and upon the body of one John W. Jack, then and there being, feloniously, on purpose, and wilfully with a deadly weapon, to-wit, a pistol loaded with gunpowder and leaden balls, which the said ” defendant “then and there held, did then and there make an assault, with the intent him the said John W. Jack then and there feloniously to kill,” charges that the assault was committed with a felonious intent. It would have been sufficient without the last use of the word “feloniously.”
    2. JURY: Sworn to Try the Case. The record must show that the jury were sworn to try the case; but if it appears in the record that the jury were “duly impaneled and sworn,” the presumption attaches that they were properly sworn. So that where the record recites that “this cause is proceeded with before the following jury, duly impaneled and sworn, to-wit,” naming twelve jurors, and concluding with the words: “twelve good and lawful men summoned from the body of the county,” the record shows that the jury was sworn to try the issues in the case between the State and the defendant.
    3. CONVICTION: Sufficiency of Evidence: Conflict. It is the province of the jury to weigh the evidence and determine the facts; and if there is evidence tending to prove the facts as eharged> the appellate court will not disturb the verdict. So that where there was evidence that defendant had previously threatened to kill Jack before sundown; that, as he went to the post office, from his own office, Jack was standing on the sidewalk; that, as he came out of the post office, he had his hand in his pocket; that he walked up to Jack, drew a pistol from Ms pocket, and said, “Damn you,” and that Jack with Ms left hand grabbed Ms pistol, and with the other drew Ms own pistol, and a scuffle ensued, it cannot be held that the evidence fails to show that defendant made an assault upon Jack, although defendant’s evidence tends strongly to show that Jack was the aggressor.
    4. EVIDENCE: Explaining Possession of Pistol. It is always competent for a defendant charged with using or attempting to use a deadly weapon, to show why he had the weapon in Ms possession at the time of the difficulty. But where defendant is charged With feloniously assaulting Jack with a pistol, it is not competent to permit Mm to show that, after the assault and after he was taken to jail, one Stephens with whom he had had a difficulty previously the same day, and who had followed Mm to the jail, drew a revolver upon Mm and threatened to Mil Mm, since Stephens was not present at the assault upon Jack and was no party to it.
    Appeal from Dent Circuit Court. — Hon. L. B. Woodside, Judge.
    Affirmed.

      Dalton & Arthur for appellant.
    (1) The' defendant is being prosecuted for a felonious assault. In such cases the gravamen of the offense is the assault. This class of assault is not a creation of the statute; it was a misdemeanor at common law. In order to sustain a conviction in such a case, it is necessary for it to be alleged in the information that the assault was committed with a felonious intent. The purpose of the prosecution is to convict the defendant of the assault and not for an attempt to kill and murder. (1) East P. C. 441;. Wile v. State, 60 Miss. 260. In a prosecution for a felonious assault the information should be held bad, unless the word “felonious” is used to modify the word “intent.” State v. Clayton, 100 Mo. 519; State v. Davis, 121 Mo. 404; State v.. Norman, 136 Mo. 1. (2) The record does not show that the jury was sworn to try the issues in the ease between the State and the defendant. Lewis v. State, 51 Ala. 1. (3) Duncan and Stephens had some difficulty several hours before Jack made the attack on Duncan. It is shown by the evidence that Jack was aiding Stephens in annoying Duncan. While Duncan and Stephens were in the height of their gun display, Jack rushed in and took Duncan’s pistol from him. In the controversy with Duncan, Jack was the aggressor. He caught hold of Duncan as he was on his way back to his office. Jack’s own testimony shows that he caught hold of Duncan’s gun in such a manner that he could not pull the trigger and yet while holding Duncan in this manner, Jack shot and wounded him. The only assault there is in this case is the one made by Jack upon Duncan. 3 Cyc. 1020 (a). In order to establish an assault on the part of the defendant the force must be physical. In the ease at bar there was no force on the part of the defendant. The only physical force which was displayed in the altercation was that applied and used by the prosecuting witness. Bishop on Criminal Law (4 Ed.), sec. 49; State v. Pohl, 170 Mo. 422. The victim, who in his physical weakness was assaulted, shot, and severely wounded, should not be forced to suffer the penalty of the law for the crime the prosecuting witness committed upon the body of the defendant. Manahan' v. State, 18 Ind. App. 297. (4) On the last page -of the cross-examination of Jack, and last part of Duncan’s testimony in chief, the defendant offered to show that Stephens followed the officials who had Duncan in custody to the city jail. After Duncan had been taken to the jail, Stephens entered the enclosure thereof and drew his pistol and pointed it at Duncan and told him that he would kill him. This is a. part of the res gestae. It was only a few moments after the Jack-Duncan fuss till Stephens drew his pistol on Duncan. The real trouble had been between Stephens and Duncan, and Jack for some purpose just butted in- Klein v. Hoffheimer, 132 U. S. 367; Eagon v. Eagon, 60 Kan. 697.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) The information is valid, sufficient, in accordance with the provisions of the statutes, and is in a form often approved by this court. State v. Henderson, 165 Mo. 262; State v. Chandler, 24 Mo. 371; State v. Temple, 194 Mo. 248; Kelley’s Crim. Law, see. 579, p. 381. (2) Appellant complains that the information is insufficient to sustain the judgment, in that it does not charge the felonious intent. In this appellant is in error. Under the long line of decisions of this court informations and indictments in conformity to this information have been approved by this court, and rightfully so. State v. Comfort, 5 Mo. 357; State v. Chandler, 24 Mo. 371; State v. Seward, 42 Mo. 206; State v. Hendrickson, 165 Mo. 262; State v. Temple, 194 Mo. 249; State v. Heath, 221 Mo. 570; State v. Privet, 175 Mo. 123; State v. Kindred, 148 Mo. 270. The appellant complains that there was no assault made by appellant. This is a question of fact and was for the jury. The jury settled the conflict in the testimony, and the court will not interfere. State v. Matthews, 202 Mo. 148; State v. Tetrick, 199 Mo. 100. Appellant complains that the court refused to permit the appellant to show upon cross-examination that the prosecuting witness, Jack, and by appellant’s testimony, that Stephens entered the enclosure of the jail, where appellant was, after the assault, and pointed his pistol at the'appellant, and told him he would kill him. Appellant contends that this was a part of the res gestae. In this he is in error. What occurred between Stephens and appellant would not be admissible; it was with reference to another offense, if any, as no conspiracy was alleged between Jack and Stephens, and the court would have committed error in permitting what Stephens did to have been brought into the case.
   KENNISH, P. J.

Appellant was tried at the November, term, 1909, of the circuit court of Dent county, upon an information charging him with having made an assault with a deadly weapon upon one John W. Jack with intent to kill. He was convicted, sentenced to pay a fine of one hundred dollars, and appealed to this court:

The evidence at the trial was very conflicting as to whether the defendant or Jack, the prosecuting witness, was the aggressor in the encounter out of which the prosecution arose-.

As shown by the evidence for the State, the facts ' were as follows:

The defendant was a practicing physician in the city of Salem, and Jack was the city marshal. During the forenoon of June 26, 1908, the defendant had an altercation with John Stephens, the prosecuting attorney of Dent county, on the streets of the city of Salem. Jack arrested the defendant and took a revolver from him. Defendant was taken before the police judge and forthwith tried on a charge of carrying concealed weapons. He was fined and immediately paid his fine. He then demanded the return of his revolver, and Jack refused to return it. He repeated the demand several times-and appealed to the police judge and city attorney to compel Jack to return the weapon to him. They both replied that they had no power to do so". During this discussion the defendant and Jack both became very much enraged and the defeniiant said it did not matter • whether Jack returned the weapon or not; that he would kill both Jack and, Stephens before sundown. Jack then left the court room, and shortly thereafter the defendant and the city attorney left the room together, the city attorney accompanying the defendant to the door of the latter’s office.

Late in the afternoon of the same day the defendant went from his office to the postoffice. The entrance to both offices was on the south side of the street, the postoffice being west of the defendant’s office. There was a sidewalk about twelve feet wide on that side of the street. When the defendant went to the post-office Jack was standing at the outer edge of the sidewalk, between defendant’s office and the postoffice, engaged in conversation with two men. The defendant went into the postoffice and in a very short time came out again, with his hand in his pocket, and walked diagonally across the sidewalk in the direction of Jack. He walked up to Jack, drew a derringer pistol from his pocket, and said, “Damn you.” Jack, with his left hand, grabbed defendant’s right hand, in which defendant held the pistol, and at the same time, with his right hand, drew his own revolver. The defendant grabbed Jack’s right hand with his left hand. A scuffle ensued, during which two shots were fired by Jack, one of which wounded defendant in the thigh. The defendant attempted to fire his pistol, but was prevented from doing so by Jack, who gripped bis band in such a way that he could not fire. Jack threw the defendant upon the sidewalk, and aj bystander took defendant’s weapon from him and gave it to Jack. The defendant was then taken to the city jail by Jack, and a physician was called to attend to his: wound. Jack testified that defendant had on several occasions previous to that day made threats against him.

According to the evidence for the defendant, the facts were as follows:

When the defendant was fined in the police court during the forenoon he paid his fine and demanded the return of his revolver, giving as his reason for wanting the revolver that he was afraid he would be killed by Stephens and wanted the revolver for protection. When the police judge and city attorney told him they could not compel Jack to give him the weapon, they told him the city attorney would accompany him back to his office and protect him. The city attorney accompanied Mm to Ms office. In the afternoon he wanted to go to the postoffice for Ms mail. He was afraid he would be injured by Stephens and for that reason put a small derringer pistol in Ms pocket. He went to the postoffice, procured Ms mail and started back to Ms own office. In returning to his office he was compelled to pass Jack, who was standing on the sidewalk. The defendant could not walk very steadily, as he was crippled from having had one of Ms Mps dislocated. As he turned from the door of the postoffice and started to Ms own office he, by reason of his crippled Mp, lurched or staggered in the direction of Jack, whereupon Jack grabbed Mm by the arm and drew a revolver. Defendant drew Ms pistol, and at the same time grabbed Jack’s hand. In the scuffle that ensued defendant did not fire Ms pistol, nor attempt to'fire it, because Ms whole concern was to prevent Jack from shooting Mm. Jack attempted to place Ms revolver against defendant’s breast, but defendant prevented it by pushing Ms hand away. Jack fired two shots, one of which struck defendant in the tMgh. Deféndant was tMown and a bystander took Ms pistol from Mm and gave it to Jack. Defendant was then taken to the jail and a large crowd followed Mm to the jail, Stephens being in the crowd. The defendant demed having made any tMeat against Jack, either at the police court in the forenoon or at any other time and place.

I. Appellant complains that the information is fatally defective in that it fails to allege that the assault was committed with a feloMous intent. The information charges that “E. A. Duncan at and in Dent county, Missouri, on the 26th day of June, 1908, in and upon the body of one John W. Jack, then and there being, felomously, on purpose, and wilfully with a deadly weapon, to wit, ‘ a pistol loaded with gun powder and leaden balls, wMch the said E. A. Duncan then and there held, did then and there make an assault with the intent him the said John W. Jack, then and there feloniously to kill,” etc. The offense is charged in accordance with the form found in Kelley’s Criminal Law and Practice, section 579, which form has received the express approval of this court. The information is therefore sufficient and would have been sufficient without the use of the word “feloniously” preceding the words “to kill.” [State v. Hendrickson, 165 Mo. 262; Kelley, Crim. Law and Prac. sec. 579.]

II. It is next assigned as error that there was no proof of the venue of the crime. The record does not sustain this contention. The prosecuting witness, after having testified in detail as to the facts of the assault, was asked, “What State and county did this happen in, Mr. Jack,” and answered, “It happened in Dent county, State of Missouri.” The question and answer clearly had reference to the alleged crime and therefore there was direct and positive proof of the venue.

III. Complaint is made by appellant that: “The record does not show that the jury was sworn to try the issues in the case between the State and the defendant.”- The record recites that: “This cause is proceeded with before the following jury, duly impaneled and sworn, to wit”; the names of the twelve jurors follow, and the sentence concludes with this language: “twelve good and lawful men summoned from the body of the county of Dent.”

The question of the sufficiency of the record recital as to the swearing of the jury in a criminal ease was considered by this court in the case of State v. Mitchell, 199 Mo. 105. While several cases are referred to in that ease, in which the record recital as to the swearing of the jury was held bad, in none of such eases did it appear in the record that the jury was “duly sworn.” The authorities are agreed that the record must show that the jury which tried the ease was sworn. But if it appears in the record that the jury was “duly impaneled and sworn,” the presumption attaches that the jury was properly sworn. [State v. Schoenwald, 31 Mo. 147; State v. Mitchell, supra; 12 Ency. Pl. and Pr. 523; Thompson-Merriam on Juries, sec. 299.] In accordance with the foregoing authorities we hold that it sufficiently appears that the jury was regularly sworn to try the ease.

IV. It is contended that the evidence fails to show that an assault was made by the defendant upon the prosecuting witness, Jack. All that need be said upon this point is that, as appears .from the statement of facts heretofore made, there is testimony which, if believed, leayes no doubt that the defendant was the aggressor. There was also testimony which, if believed, would have warranted a verdict of acquittal on the ground that Jack first assaulted the defendant. It was the province of the jury to weigh the evidence and determine the facts. And it is a well recognized rule of law that if there is evidence tending to prove the facts as charged this court will not disturb the verdict. [State v. Fields, 234 Mo. 615; State v. Sharp, 233 Mo. 269; State v. Cannon, 232 Mo. 205.]

V. After the alleged assault had been committed on the prosecuting witness, Jack, and after the defendant had been taken to the jail, an altercation occurred between the defendant and one Stephens, in which it is claimed the latter drew a revolver on the defendant and threatened to Mil Mm. The defendant sought to introduce testimony of Stephens’s conduct in thus drawing Ms weapon, for the purpose of showing why he, defendant, had a pistol in Ms possession at the time of the difficulty with Jack. It is always competent for a defendant charged with using or attempting to use a deadly weapon, to show why he had the weapon in Ms possession at the time of the difficulty. [State v. Kretschmar, 232 Mo. 29; State v. Heath, 221 Mo. 565.] The defendant availed himself of this right, in his own testimony, by explaining his possession of the weapon consistently with an innocent purpose and intent. But we are not aware-of any principle of law that would authorize the admission in evidence of the acts and conduct, after the assault, of one who was not present or a party to it, for the purpose of showing why the defendant had in his possession a deadly weapon at the time of the alleged offense. We think this evidence was properly excluded.

Finding no error in the record, the judgment is affirmed.

Ferriss, J., concurs; Brown, J., not sitting.


text:
    THE STATE v. LUTHER HERRICK, Appellant.
    Division Two,
    November 14, 1911.
    APPEAL: No Bill of Exceptions. Where there is no bill of exceptions, there is nothing for review on appeal but the record proper, and if it is complete, valid and sufficient, the judgment, convicting defendant of a felony, will be affirmed.
    Appeal from Lewis Circuit Court. — Hon. Charles D. Stewart, Judge.
    Affirmed. .

      Elliott W. Major, Attorney-General, Campbell Cummings and John M. Dawson, Assistant Attorneys-General, for the State.
    (1) The information is duly verified, valid and sufficient. It is a copy of the indictment approved in State v. O’Keefe, 141 Mo. 272. This form of information has been approved by this court many times. State v. Primm, 98 Mo.- 368; Kelley’s Crim. Law and Prac., see. 555. It adequately individuates the offense. See. 4478, R. S. 1909; State v. Marshall, 137 Mo. 463; State v. Kyle, 231 Mo. 59; State v. Mitchell, 229 Mo. 683; State v. Walker, 232 Mo. 252; State v. Stanley, 232 Mo. 23; State v. Knock, 142 Mo. 515; State v. Hall, 164 Mo. 528. (2) Appellant was arraigned, represented by counsel and entered his plea of not guilty. The jury were regularly impaneled, challenged and sworn. Sec. 22, art. 2, Const. Mo. (3) The verdict is certain, definite and responsive to the issues joined. The judgment of sentence is in due form and in accordance with the verdict. Allocution was pronounced by the court, and no exceptions can be made to same. (4) There is nothing before this court but the record proper. It is regular in form and substance, clearly shows a valid information, the arraignment of appellant, the plea of not guilty, that he was represented by counsel, that the jury were regularly impaneled, challenged and sworn, that the verdict returned by the jury was responsive to the issues, and that the judgment of sentence is in accordance with the verdict. Under this statement of facts, there is nothing for this court to do but to affirm the cause. State v. Harris, 216 Mo. 392; State v. Moore, 203 Mo. 627; State ,v. Goehler, 193 Mo. 183.
   FERRISS, J.

At the' September term, 1909, of the circuit court of Lewis county, upon an information filed by the prosecuting attorney of said county, defendant was tried and convicted of the offense of-seducing, under promise of marriage, one Ruby Cason, an unmarried female of good repute, under twenty-one years of age. His punishment was assessed at nine months in the county jail and a fine of two hundred and fifty dollars. An appeal- from the judgment was granted to the St. Louis Court of Appeals, which court, not having jurisdiction of felony cases, ordered the cause transferred to this court, and it is now before us for review.

No bill of exceptions has been filed 'in this case, and there is therefore nothing before the court for review save the record proper. This we have carefully examined, and finding it to be complete, valid and sufficient in all respects, the judgment is affirmed.

Kennish, P. J., and Brown, J., concur..