source: Caselaw Access Project

author: FOX, P. J.

license: Public Domain

text:
    THE STATE v. JESSE A. OAKES, Appellant.
    Division Two,
    March 5, 1907.
    1. PLEA IN BAR: Acquittal Under One Count: Defiling Ward. An acquittal under the first count of an indictment which charged carnal knowledge of an unmarried female of previous chaste character, is no bar to a prosecution under the second count which charged the defendant with having carnal knowledge of the same female while confided to his care and protection. A demurrer to a plea in bar in such case should be sustained, for the question is purely a question of law, apparent on the record. Nor does it alter the case that the plea in bar alleges that the same evidence was at the first trial introduced to sustain both counts, and that the same evidence will again be introduced on a retrial of the second count, and that the same facts which at the first trial were used to show defendant guilty under the first count would be used in the retrial to show him guilty under the second count. The offenses are distinct, and their essential elements are not the same. And the same is true as to a dismissal under a third count which charged a taking away for the purpose of concubinage.

      2. DEFILING WARD: School Teacher: Girl of Tender Years: At Home of Parent. Under the provisions of section 1845, R. S. 1899, which makes it a felony for any person t.o whose care and protection any female under the age of eighteen years may have been confided, to defile her, a school teacher, who gains the confidence of a girl fifteen or sixteen years old in the school room and who visits her at her widowed mother’s house at night, in her mother’s absence, and there defiles her, and later after her mother’s return continues such relations, is guilty. She is not under his care and protection simply while she is in school, nor does that care and protection, within the meaning of the statute, cease on her return to her parents’ house, even though they be at home.
    3. -: Failure to Fully Instruct: Admissions: Error .in Defendant’s Favor. Failure of the trial court to instruct the jury that what the defendant said against himself should be taken as true, hut what he said in his favor could he believed or not by the jury as they thought the same true or false, the admissions being in letters written by him, if error at all, is error against the State, and could not have prejudiced defendant.
    4. -: School Teacher: With Knowledge of Mother. The court should not instruct the jury that, if they find and believe from the evidence that the visits of defendant, a school teacher, to the house of the prosecutrix, were made with the knowledge and consent of her widowed mother, then such knowledge or consent terminated for the time the relationship of pupil and teacher between the girl and defendant. The mother could not consent to a violation of the law; and besides, in this case, there was no evidence on which to base the instruction, the acts of sexual intercourse occurring when the mother was asleep or was away from her home nursing the sick.
    5. REMARKS OF COUNSEL: Corrected by Court. Where the reproof of the trial judge, to the effect that remarks made by attorneys for the State were clearly outside of the record and improper, was sufficient to avoid the arousing of prejudice in the minds of the jury against defendant, the judgment will not he reversed, although such remarks are not approved and deserved a more severe censure.
    Appeal from Henry Circuit Court. — How. N. M. Bradley, Special Judge. •
    Affirmed.

      Henry F. Poague and Foullte & Brown for appellant.
    (1) There was error upon the part of the trial court in sustaining the demurrer to defendant’s plea in bar. (a) That there was a previous acquittal upon the first count of the indictment (which, for the purpose of this case, must and will be considered a separate indictment) is apparent, not only from the plea in bar, but from the record proper in the case. Even where the verdict is silent as to one or more counts, it amounts to an acquittal on those counts. State v. Gannon, 11 Mo. App. 504; State v. Cofers, 68 Mo. 120; State v. Bruder, 35 Mo. App-. 1. c. 482. But in this case there was a verdict of acquittal and a judgment of discharge, which under all the cases puts the matter at rest. State v. Gannon, supra; State v. Kuttleman, 35 Mo. 105; Crecilius v. Bierman, 68 Mo. App-. 1. c. 37; Pleas in bar are of three classes: 1, autrefois acquit; 2, autrefois convit; and 3, autrefois attaint. 1 Bishop’s New Crim. Proced., sec. 742. Such pleas are mixed questions of law and fact. 9 Ency. Plead, and P'rac., 633. Being such mixed questions of law and fact, the court must submit the question to a jury under proper instructions. This the trial court refused to do in this case, and therein committed error. Com. v. Merrill, 8 Allen 545; 9 Ency. Plead, and Prac., 6391; Troy v. State, 10 Tex. App. 319; State v. Hudkins, 35 W. Va. 247; Com. v. Bademan, 105 Mass. 53; Henry v. State, 33 Ala. 399; Foster v. State, 39 Ala. 229; Dominick v. State, 91 Am. Dec. 496; DeArmond v. State, 7.7 Ala. 10 ; People v. Kinsey, 51 Cal. 278; State v. Wisebeck; 136 Mo. 214; State v. Goff, 66 Mo. App-. 491. (b) This plea in bar was peculiarly one of mixed law and fact; the plea in bar pleads, in specific terms, the identity of the two charges, that the proof offered at the first trial would be the same as that to be offered on the present trial. When defendant charged hy his plea the identity of the offenses, and that they were one and the same transaction, the court should have heard the evidence, and submitted the question of facts to the jury. Authorities cited supra; Goode v. State, 70 Ga. 752; Lovett v. State, 80 Ga. 255; State v. Johnson, 11 Nev. 273; Grisham v. State, 19 Tex. App. 504. If the facts pleaded charged the identity of the two offenses, it is not for the court to decide upon demurrer, or otherwise, in advance of a trial, that the identity cannot be shown. Proof must he taken on the plea and a verdict returned. State v. Johnson, supra, (c) This plea in har raised an issuable fact — whether or not the two alleged offenses were the same and grew out of one and the same transaction and none other. This question of fact guarantees to defendant a trial hy jury of the issues. Constitution, art. 2, sec. 22. (2) (a) But going a step further. Suppose the plea in har had not alleged extraneous matter, to raise a question of fact, as to the identity of the two alleged offenses and that they grew out of the one transaction, and none other, as this plea did, hut had only set out record entries, yet the plea was good and the demurrer should not have been sustained. This indictment with the three counts thereof, was bottomed on sections 18391, 1842, and 1845, of our statutes. These sections, with section 1837, are cognate statutes, the gist of which is the unlawful carnal knowledge of a female and an assault upon the person of the female. In all, the assault is and must he against the consent, hut even- if consent is given in some, it is not recognized because of the age of the party assaulted, as such age of consent is fixed hy the statute. This does not change the basic principles of the offense, however. The gist of all the offenses remains the unlawful carnal knowledge of a female, which is an assault upon the person, in which case an acquittal of one offense, growing out of the same state of facts, is a bar to all. State v. Colgate, 47 Am. Rep. 507; State v. Cooper, 25 Am. Dec. 490; Wilcox v. State, 40 Am. Rep>. .53; Roberts v. State, 58 Am. Dec. 528; Cooper v. Commonwealth, 51 S. W. 789; Dinkey v. Commonwealth, 55 Am. Dec. 542; State v. Gleason, 9 N. W. 126; Cbm. v. Amer, 24 Atl, 83; Franklin v. State, 11 S. E. 876 ; State v. Lo.cklin, 10 Atl. 464. (b) Our own court has practically passed upon this case and the law thereof. State v. Headrick, 179 Mo. 308. (3) The court erred in permitting evidence as to what occurred between the parties after the school had closed which would be after the relationship contemplated by the statute had closed. This proposition requires no citation of cases. (4) Defendant made a written request for instructions upon questions arising from the evidence and record in this case. He excepted to the failure of the court to do so. The court admitted a lot of letters by defendant, upon the theory that they were admissions by defendant. The court should have told the jury that what defendant said in said letters against himself should be taken as true, but what he said in his behalf should be weighed by the circumstances and facts in the case. In other words, the court should have given the usual instruction as to previous statements made by defend■ant. (5) Defendant’s refused instruction 3 should .have been given. Even though prosecuting witness was a pupil of the defendant, yet if his visits with her .were at her house, and with the consent of her mother, who had charge of the home and the minor child therein, then defendant was not violating the statute by defiling her, when she went home and her mother assumed .the reins of government and consented to or had knowledge of his visits; such act of itself terminated the relation of pupil and teacher as contemplated by the statute. (6) The argument of prosecutor Hinkle, and ■ special prosecutor Judge Lindsay, cannot be upheld by this court. The trial court, it is true, admonished Judge Lindsay several times and in desperation the court said he would reprimand him, if he (the court) knew what to say. This argument was highly improper and prejudical and its effect was not cured in what the court attempted to do. State v. Young, 991 Mo. 666; State v. Prendible, 165 Mo. 329; State v. Shipley, 174 Mo. 612.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) No error was committed hy the trial court in overruling defendant’s plea in bar, as the same was wholly without merit. An acquittal of defendant on the first and third counts of the indictment could not possibly affect the second count. It may he argued hy counsel that the act of sexual intercourse, alleged to have been indulged in between defendant and prosecutrix, was the criminal act which formed the basis of the prosecution in each one of the three counts. This may he conceded, and yet a- defendant he guilty of defiling his ward, although no.t guilty of violating the carnal knowledge statute, and not guilty of taking a female away from her mother for the purpose of concubinage. The female may not have been of previously chaste character, hence defendant would not have been guilty of violating the carnal knowledge statute. Or, the mother may not have been legally in charge of the female, or the defendant may not have taken her away for the purpose of concubinage, or may not have taken her away at all. The statement of a cause of action in different counts, in either a civil or criminal case, is permissible, in order that the allegation may correspond with the facts, as disclosed hy the evidence. It can hardly he argued that, if after defendant had been convicted, on the second count at the first trial, and his .motion for a new trial had been overruled, he would have been entitled to he released on a writ of habeas

      corpus. And yet defendant’s argument on the subject of former jeopardy, would lead to that result, which argument can not be sustained. (2) No error was committed by the court in sustaining the demurrer of the State to defendant’s plea in bar. When the facts alleged in a plea in bar do not constitute a good ground for sustaining such a plea, a demurrer should be filed by the State and sustained by the court. State v. Laughlin, 180 Mo. 357; 1 Bishop’s New Crim. Proc., sec. 816; Clark’s Crim. Proc., 286, 382-383; State v. Anderson, 186 Mo. 25. (3) Defendant was not entitled to a trial by a jury on his plea in bar, as this court has decided in cases where similar pleas have been filed. Therefore, no error was committed by the trial court in refusing to summon a jury to try and pass upon that question. State v. Laughlin, supra; State v. Goddard, 162 Mo. 198. The Headrick case (179 Mo. 300), cited by and relied on by appellant, is not in point, and is no authority in the case at bar. Campbell v. People, 4 Am. Crim. Rep. 338. (4) No error was committed in permitting prosecutrix to testify to acts of intercourse committed after the close of school. Prosecutrix testified to her first meetings with defendant in January, 1905, of his having sexual intercourse with her on the third visit. As school did not close till the following May, this act of sexual intercourse, and the ones following, were clearly sufficient to constitute the crime of defiling one who was confided to defendant’s care and keeping. It must be remembered that the indictment charged defendant with the commission of the crime on the — day of July, 1905; and the State’s evid'ence tended to sustain this portion of the charge. Evidence of acts of sexual intercourse between the parties, committed prior to the one here charged, were competent. State v. Palmberg, 199 Mo. 233; 4 Elliott on Evidence, sec. 3105; State v. King, 117 Iowa 768; People v. Edwards, 73 Pac. 416; State v. Bochert, 68 Kan. 360; Smith v. Com., 22 Ky. L. 1349; State v. Robertson, 121 N. Car. 551; Hamilton v. Stale, 36 Texas Crim. 372. (5) No error was committed in failing to instruct the jury upon all the law applicable to the case. The fact that the court did not instruct the jury that what the defendant said against himself, in the letters, should be taken as true, but what he said in his behalf could be believed or not, as the jury thought the same to be true or false, could not possibly have injured defendant. Indeed, it may be said that the failure to so instruct was an error for which the State, and not the defendant, might complain; which of course is an error that defendant can not now take advantage of. Lynch v. Railroad, 111 Mo. 601; Elliott on Appellate Proe., sec. 643. (6) The trial court properly refused defendant’s instruction 3, to the effect that defendant was not guilty if the jury found that defendant’s visits to the house of prosecutrix were had with the knowledge and consent of the mother of the prosecutrix. In the first place, said instruction was not based upon any evidence, as prosecutrix testified that many of defendant’s visits were had at nights, while her mother was asleep; that others were had at nights while her mother was away from home sitting up with a sick lady; and that other visits were made out in the yard, whither prosecutrix had gone, pretending to her mother that she had another excuse for going out. In the second place, said instruction does not properly declare the law; as the mother could not consent to a violation of the law by defendant. Even if the mother had known that defendant was having sexual intercourse with prosecutrix, and had consented thereto, defendant would still be guilty. It was not necessary that these acts be committed at the school house, nor during school hours; but the crime denounced by the statute is the defilement of a female under eighteen years of age by the man who has been entrusted with her care and keeping. R. S. 1899, sec. 1845; State v. Terry, 106 Mo. 209; State v. McClain, 137 Mo. 307; State v. Napper, 141 Mo. 401; State v. Yonng, 99 Mo. 284; State v. Summar, 143 Mo. 220; State v. Rogers, 108 Mo. 202; State v. Hesterly, 182 Mo. 16. (7) The language used by the prosecuting attorney, and by his associate, was not as objectionable as learned counsel would have this court to believe. A prosecuting officer may denounce the crime that the defendant is charged with, and may draw all legitimate conclusions which the evidence tends to suggest and support. But even if some indiscreet remark was made, that does not entitle defendant to a reversal. State v. Sublett, 191 Mo. 174; State v. Fitzgerald, 130 Mo. 426; State v. Hibler, 149 Mo. 484; Morrison v. State, 76 Ind. 338. Some of the alleged objectionable remarks were what this court has heretofore termed “wholly immaterial” and therefore not prejudicial. State v. Q-riffin, 87 Mo. 615; State v. Miles, 1991 Mo. 530. But the trial court sustained defendant’s objections to some of the remarks made by the representatives of the State and directed the jury not to consider the same. It. is therefore insisted that whatever error, if any, was committed, the same was thereby corrected, and promptly corrected, by the action of the trial court. State v. Barrington, 198 Mo. 23; State v. Fitzgerald, 130 Mo. 436. A rehuke'from the trial court will cure an indiscreet or an improper remark, such as this one. Thompson on Trials, sec. 960; Thornton on Juries, see. 454; State v. Taylor, 134 Mo. 158.
   FOX, P. J.

This cause is here upon appeal by the defendant from a judgment of the Henry Circuit Court, convicting him, under the provisions of section 1845-, Revised Statutes 1899', of defiling his ward.

At the September term, 1905, of the circuit court of Henry county the grand jury returned an indictment against the defendant, embracing in such indictment three counts. The first count charged him, under the provisions of the statute, with having carnal knowledge of Opal Khaus, an unmarried female between the ages of fourteen and eighteen years, of previously chaste character; the second count charged the defendant with having carnal knowledge of Opal Khaus, a female under the age of eighteen years, who was then and there confided to his care and protection; the third count charged the defendant with taking one Opal Khaus, a female under the age of eighteen years, from her mother, for the purpose of concubinage. On December 19, 1905, being at an adjourned term of the Henry Circuit Court, the defendant was tried by a jury. On the 20th of December, 1905, during such trial, the prosecuting attorney dismissed the third count of said indictment. At such trial defendant was found guilty of the offense charged in the second count and was acquitted of the charge contained in the first count. Upon motion and at the request of the defendant a new trial was granted him and he was again tried upon the charge embraced in the second count at the January term, 1906. It is this trial that is now before us for review.

Before the trial proceeded the defendant withdrew his plea of not guilty and filed his plea in bar of this prosecution. We deem it unnecessary to reproduce in full the allegations contained in this plea. It is sufficient to state that it is predicated upon the acquittal of the defendant of the charge in the first count. It fully and correctly sets forth the pleadings and record in connection with the trial in which a verdict of not guilty as to the first count was returned; makes allegation that the offense as charged in the second count grew out of the same transaction as that contained in the first count, of which-defendant had been acquitted; that the defendant is the same person who was tried and that the evidence offered wherein the defendant was acquitted, was to the effect that Opal Knaus was fifteen years old and that she was a pupil of defendant, who was then a school teacher, and that while said relations existed, he carnally knew her and had intercourse with “her. That prior thereto she was of previous chaste character and that the proof then made will be the same proof in this trial and none other; that this defendant stands ready to verify and prove all the facts and things alleged in his plea in bar. Then follows the prayer of the defendant in which he says that by reason of the terms and facts as stated in his plea in bar he stands fully acquitted of the alleged crimes, offenses or felonies charged in the first count and he asks that he be permitted to prove and verify the same and that he have a trial thereof to the end that he may be discharged from a further trial of the second count herein or any other count in said indictment. To this plea in bar the State first filed an answer, which upon motion of the defendant was stricken out. The State thereupon filed a demurrer to defendant’s plea which, over the objections and exceptions of defendant, was sustained. Defendant thereupon refused to plead further and the court ordered entered of record a plea of not guilty and the trial proceeded.

At said trial the State’s evidence substantially tended to show that the defendant was a school teacher by occupation, and that he taught one term and was principal of school in Urich, Henry county, Missouri. Prosecutrix lived with her widowed mother in the town of Urich, and attended the school which defendant taught. This term of school opened in September, 1904, and continued till the following May, when defendant taught a summer school. Shortly after the opening of school, defendant began paying attentions to prosecutrix, who was then nearly fifteen years of age. Defendant would hand love verses to prosecutrix, read them to her and say that they applied to “our case.” Defendant was a married man, but was not living with his wife. When prosecutrix would go up with her class to recite, defendant would always borrow her hook; and, in returning it, would press her hands close and fondle with them. Prosecutrix and defendant were together often during recess and noon hour, and defendant often talked to her on religious subjects. In January prosecutrix told defendant that they must stop being together so much, and he must stop paying her so much attention, as persons were beginning to talk about them. Defendant said nothing at that time, but late that afternoon defendant handed prosecutrix her book and indicated to her that there was a note in it for her. In this note, defendant asked permission of prosecutrix to meet her at 11 o ’clock that evening, and prosecutrix answered, saying for him to come to a certain door of her house. Defendant came, told her how much he cared for her and loved her, that his life would always be miserable unless she permitted him to go ahead with his attentions, that both of them were Christians and that it was her Christian duty to permit him to visit her. No one was at home this night except prosecutrix and her grandmother, her mother having gone to a neighboring town. As the grandmother had gone to bed, no one knew of this visit to prosecutrix. Defendant further told prosecutrix that his wife cared nothing for him, that he cared nothing for her, as she was not a Christian woman, and was only a drawback to him. He further professed love for prosecutrix and said that he needed her to help him in his Christian life, and that he believed that he could help her a great deal. At the close of this visit, defendant asked prosecutrix if he could call again, and she consented that he might. Defendant called the next night, met prosecutrix, caressed her, and took improper liberties with her person. Defendant made a third visit the next night (her mother still being away) and this time had sexual intercourse with prosecutrix.. Defendant and prosecutrix had various meetings after that, one on returning from prayer-meeting, others out in the yard and still others in the kitchen. At these various meetings, defendant and prosecutrix had sexual intercourse — defendant talking to her continually about being in love with her, considering her his wife, and that there was nothing improper in them so indulging. Among other things, defendant told her that in the sight of man their actions would be wrong, but that in the sight of God it was all right. After it was definitely ascertained by them that prosecutrix was pregnant, defendant and prosecutrix ran off and went to California; they left Urich on July 12, 1905. A number of letters written by defendant to prosecutrix were offered in evidence; they tended strongly to corroborate the testimony of prosecutrix.

The defendant’s evidence tended to prove that prior to the offense charged, defendant enjoyed the reputation of being a man of good character. That most of the advancements at the school were made by prosecutrix, who brought defendant flowers; and that defendant never encouraged her any. The evidence for the defense further tended to prove that prosecutrix never allowed any other scholar to loan her or his book to defendant, but promptly handed him her book. The defendant did not testify in his own behalf, but offered certain records, in support of his theory of former jeopardy, which the court refused to admit in evidence.

At the close of the evidence the court fully and fairly presented the law in its instructions upon the facts as herein indicated. The defendant requested the court to give instructions numbered 1, 2, 3 and 1, which were refused by the court. Numbers 1 and 2 were in effect a demurrer to the evidence, requesting the court to direct the jury that under all the evidence, the record and indictment in the cause they should acquit the defendant. Number 3 in substance told the jury that if they found and believed from the evidence that the visits of the defendant to the house of Opal Rnaus were had with the knowledge or consent of her mother, then snch knowledge or consent terminated for the time the relationship of pnpil and teacher, and they should acquit the defendant. Number 4 was simply a declaration of law that if the several acts of intercourse testified to by prosecutrix were had and committed after school hours and at the house of Opal Knaus’s mother, then the jury should acquit the defendant.

The cause was submitted to the jury upon the evidence and instructions and they returned a verdict finding the defendant guilty as charged in the second count of the indictment, and assessed his punishment at two years in the penitentiary. Timely motions for new trial and in arrest of judgment were duly filed and by the court overruled. Sentence and judgment was entered in accordance with the verdict and from this judgment the defendant prosecuted this appeal, and the record is now before us for consideration.

OPINION.

The principal complaints of error by the appellant, as disclosed by the record, may thus be briefly stated:

1st. It is insisted that the court erred in sustaining a demurrer interposed by the State to the plea in bar.

2d. It is claimed that the court erred in the admission of evidence as to the acts of sexual intercourse between the defendant and the prosecutrix after school hours, insisting that the relationship contemplated by the statute of teacher- and pupil had been severed by reason of the school having closed for the day.

3d. That the court erred in failing to instruct the jury fully upon all questions arising from the evidence and the record in the case.

•4th. That the court erred in refusing instruction numbered 3, requested by the appellant.

This constituted the main errors as indicated in the brief of learned counsel, and we will treat of them in the order as herein indicated.

I.

Upon the complaint of appellant as to the action of the court in sustaining the demurrer to his plea in bar, we are unable to agree with counsel upon this insistence, and it is sufficient to say upon this proposition that the law applicable to it was settled in the recent case of State v. Laughlin, 180 Mo. 342. We find no good reason for departing from the rules of law applicable to this subject, as announced in that case, and it must be taken as decisive of the proposition presented in the case at bar. There were three counts embraced in the indictment in this case, each of which constituted a separate and distinct offense, and the State having dismissed as to the third count and the jury having returned a verdict of not guilty as to the first count, it was purely a question of law apparent upon the record as to whether or not the acquittal of the defendant of the charge preferred in the first count or the dismissal by the State of the charge in the third count constituted a bar to the prosecution of the defendant for the offense charged in the second count. The action of the court in sustaining the demurrer interposed by the State to the plea in bar was manifestly proper. While it is true it was the same defendant, and the three counts were doubtless embraced in the indictment to meet the phases of the testimony that might follow upon the trial, it is clear that the essential elements necessary to constitute the offenses charged in the three separate counts are by no means alike, and it is manifest that the defendant may have very appropriately been acquitted of the charge preferred either in the first or third counts, and still be guilty under the evidence of the commission of - the offense charged in the second count.

It is most earnestly insisted that, as the plea in bar alleged that the same evidence was introduced in the trial wherein the defendant was acquitted of the first count as was introduced upon the trial of the cause for the second count, this presented an issue of fact, which should have been submitted and tried by a jury. The demurrer interposed by the State to the plea in bar necessarily concedes the truth of the allegations in such plea, therefore the allegations in the plea in bar that testimony was heard in the trial of the cause wherein the defendant was acquitted upon the charge preferred in the first count, showing the age of the prosecutrix and that she was a pupil of defendant then a school teacher, and that while such relation of teacher and pupil existed the defendant carnally knew her by having intercourse with her, must be taken as true, but conceding this, it by no means follows that the testimony had anything to do with the establishment of the essential elements of the offense charged in the first count. So far as the offense embraced in the first count is concerned, it was absolutely immaterial whether the defendant was a school teacher and the prosecutrix a pupil of his or whether or not there was the relation of teacher and pupil existing at the time of the unlawful acts of sexual intercourse. . The essential ingredients of the. offense charged in the first count of the indictment, which was predicated upon section 1838, Revised Statutes 1899, were simply that defendant was over the age of sixteen years and had carnal knowledge of prosecutrix, and that she was an unmarried female between the ages of fourteen and eighteen years of previously chaste character. Hence, it is apparent that there was no issue presented in the trial so far as the offense charged in the first count was concerned, as to the relation existing between the defendant and prosecutrix, and testimony of that character upon the trial of the offense charged in all three counts, could have no application to the offense charged in the first count, and doubtless was admitted simply as applicable to the charge preferred in the second count. It is apparent, under the charges preferred in the three counts in the indictment, that, if it appeared in evidence that the prosecutrix was not a female of previously chaste character, the jury would be authorized to acquit the defendant of that charge; or, as to the third count dismissed by the State, it may be made to appear that the prosecutrix was not legally under the control of her mother, or it may be made to appear that the defendant did not take her away for the purpose of concubinage, or he may not have taken her away at all. Under this state of facts he would not be guilty of the offense charged in the third count; but under the charge as is embraced in the second count, if the relation existed between the defendant and the prosecutrix afe contemplated by the provisions of section 1845, and while such relation existed he had sexual intercourse with the prosecutrix, then the offense as defined by that section is complete, and the essential elements as indicated, which are applicable to the offense charged in the first and third count, have no application whatever to the offense charged in the second count predicated upon section 1845. In our opinion the question presented by the plea in bar was purely and exclusively one of law, which was apparent upon the face of the record, and we repeat that the' action of the court in sustaining the demurrer was manifestly proper,

II.

It is next insisted that the acts of sexual intercourse as developed at the trial of this cause, occurred subsequently to the closing of school for the day; that under that state of facts there was no such relation existing between the defendant and prosecutrix as is contemplated by the provisions of section 1845, and therefore the defendant was not guilty of the offense embraced in that section.

This identical question was in judgment before this court in the recent case of State v. Hesterly, 182 Mo. 16. The question was fully and ably presented by learned counsel; the opinion followed, prepared by the writer of the opinion in the case at bar, in which my colleagues, Judges Burgess and Gantt, both concurred. After due and appropriate consultation and reviewing the rules of law announced in the Hesterly case, we are unwilling to depart from the ruling in that case, and find no valid or legal reason for so doing, and the law as there stated must be taken as decisive of the question presented in the case at bar. After fully considering the provisions of the statute creating the offense with which defendant is charged, and the purpose of the law-makers in throwing around girl pupils of tender age, who might, by reason of the position, be susceptible of improper influences, such safeguards as would prevent the abuse of the confidential relation which should exist between teacher and pupil, we simply repeat what was said in the Hesterly case, that: “We are unwilling to sanction the contention of appellant which undertakes to limit the provisions of the statute to such a narrow field. In other words, we are unwilling to say that a teacher, who' has in his charge girl pupils of tender age, so long as they are in the school room or on their way home from school, are under his care and protection; but so soon as they reach the parental roof, his care and duty of protection of them is shaken off, and he is no longer subject to the penalties of the statute for defiling them. The confidential relation of teacher and pupil exists as well after the child reaches home, as it does in the school room; it exists on Sunday, as well as on a school day. The evil intended to be prevented is the abuse of the confidential relation, and that exists wherever they may be and on all occasions, as long as the relation of teacher and pupii are in existence.”

III.

Appellant complains that the court failed to fully declare the law upon all questions arising upon the evidence and the record in the cause. It is clearly indicated in the brief of learned counsel for appellant that this complaint is directed at the failure of the court to instruct the jury upon certain letters written by the defendant, which tended to show admissions on his part. In other words, the complaint is that the court failed to give the jury the ordinary and usual instruction upon the admissions or statements made by the defendant. We are unable to see how this failure in any way prejudiced the rights of the defendant or in any way endangered a fair and impartial trial: This instruction usually tells the jury that what the defendant said against himself should be taken as true, but what he said in his own behalf could be believed or not as the jury thought the same to be true or false. If anyone has a right to complain at the failure of the court to give this instruction, we are of the impression that it is the State and not the defendant. This failure, in our opinion, did not constitute any reversible error.

IV.

It is earnestly contended by appellant that the court erred in refusing to give the jury instruction numbered 3 as requested by defendant. This instruction in substance told the jury that if they found and believed from the evidence that the visits of the defendant to the house of Opal Knaus were had with the knowledge or consent of her mother, then such knowledge or consent terminated for the time the relationship of pupil and teacher, and they should acquit the defendant.

It is sufficient to say upon this proposition that the action of the court in refusing to give such instruction was manifestly proper. In the first place, there was no evidence upon which to predicate it; as the testimony in the cause plainly shows that defendant’s visits at the times when the acts of sexual intercourse were had, were made at night, when the mother was asleep', and others were made at nights when the mother was away from home, sitting up with the sick, and that other visits were made» out in the yard, whither prosecutrix had gone, pretending to her mother that she had another excuse for going out. In the second place, the instruction does not properly declare the law. It was not within the power of the mother to consent to a violation of the law by defendant, and in our opinion, even if the mother had knowledge that defendant was having sexual intercourse with prosecutrix, it would in no way lessen the guilt of the defendant of the offense charged.

V.

Appellant contends that the remarks of the prosecuting attorney and his assistant, Judge Lindsay, in their arguments to the jury were of such a character as would warrant the reversal of this judgment. We have read with care and consideration the remarks objected to by counsel for appellant, and while we do not wish to be understood as approving that line of argument, yet.we are of the opinion that they are insufficient to authorize the reversal of this judgment. The court very plainly stated to counsel in the presence of the jury that the remarks were out of the record, and that his remarks were improper, and that in our judgment, so far as the remarks made in this cause were concerned, was sufficient to prevent the arousing of any prejudice in the minds of the jury by reason of such remarks. However, we will say now that it would have been much better if the trial court had more decisively insisted that counsel for the State should keep within the record, and enforce such power by appropriate method as was in the power of the court to do.

We have carefully considered in detail the disclosures of the entire record before us. The testimony introduced shows beyond question such a state of facts as fully warranted the jury in finding the defendant guilty. The court fully and fairly presented the law as applicable to the facts developed in this cause in substantial conformity to the announcement of the rules in the Hesterly case. The verdict of the jury in this case was clearly right, and to have found otherwise, under the facts developed in the cause, in our opinion, would have been a serious blow to the proper administration of justice by the courts of this State.

We have indicated our views upon the principal legal propositions disclosed by the record, which results in the conclusion, finding no reversible error, that the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


author: GANTT, J.

text:
    THE STATE v. JOHN BROOKS and AMELECK BROOKS, Appellants.
    Division Two,
    March 5, 1907.
    1. JUROR: Opinion: Trial Court’s Discretion. Whether or not a juror on his voir dire examination has falsely stated that he has not formed or expressed an opinion as to defendant’s guilt or innocence, is a matter of fact for the- trial court to determine, and the appellate court will not interfere with its finding unless it has clearly abused its discretion.
    2. -: -: -: New Trial: Hearing Evidence. Where in support of their motion for a new trial, defendants introduce affidavits of parties to the effect that prior to the trial they had heard one of the jurors who tried the case say that defendants should be hung, it is competent, in rebuttal, to call the juror to deny the statement attributed to him, and to offer evidence as to the good character of the juror and the bad character of the affiants; and the finding of the trial court who heard the evidence will not be disturbed.

      3. REASONABLE DOUBT: Instruction. An instruction on reasonable doubt and presumption of innocence, set out in tbe opinion, wbile not happily worded, is held sufficient.
    4. FORMER CONVICTION: Record: Credibility of Witness. Where, in a prosecution for murder, defendant testified in his own behalf, it was competent, in rebuttal, to introduce in evidence the record of his former conviction of manslaughter for the purpose of affecting his credibility as a witness.
    5. REMARKS OF COUNSEL: No Exceptions: Affidavits. Alleged improper remarks of counsel cannot be shown by affidavits, but, in order to be reviewed, they must be objected and excepted to at the time they are made, and preserved in the bill of exceptions.
    6. MURDER, FIRST DEGREE: Conflicting Evidence: Sufficiency. It was the province of the jury to settle conflicts in the testimony, and there was ample evidence to support their verdict finding defendants guilty of murder in the first degree.
    Appeal from Iron Circuit Court. — Hon. Joseph J. Williams, Judge.
    Affirmed.

      D. L. Rivers and Chester H. Krum for appellants.
    (1) The court erred in refusing a new trial as moved for on the ground of the misconduct and disqualification of juror Lashley. (2) The action of the court in admitting evidence of the good general reputation of juror Lashley for “truth, integrity, honesty and general moral character, ’ ’ cannot he reconciled with a notion of orderly procedure. (3) The instruction on reasonable doubt, given by the court, is unintelligible. (4) The admission of the record of conviction of Ameleck Brooks was a fatal error. 1. The statute — section 4680 — does not apply to a defendant in a criminal case. It was not so intended by the Legislature. 2. The statute does not provide that the conviction must be admitted in evidence whenever it is offered in the case of a defendant who has testified in his own behalf. What the statute means, if applicable to a defendant in a criminal case, is that it may he admitted in eases where, if introduced, it would properly affect his credibility. 3. The evidence offered went to the character of the defendant and not to his credibility as a witness. State v. Becker, 194 Mo. 281. (5) The course of counsel for the State, in argument, whether or not rebuked by the court, was utterly unwarranted, and should cause a reversal of the judgment.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) Charles Lashley was a competent juror in this case, as his voir dire examination clearly shows. He disclosed the fact then to defendants, to their counsel, and to the court, that he had formed an opinion at the start, based upon what he had heard; but that he kept on hearing so much about the killing that he came to the conclusion that he knew nothing whatever about it, and that he concluded not to form an opinion till he heard the evidence in court. After hearing this juror state these facts, defendants made no objections to him; hence, they cannot afterwards be heard to complain of his acceptance as a juror. Lisle v. State, 6 Mo. 426. (2) Counsel for defendant criticise the trial court for permitting evidence to be introduced tending to sustain the good reputation of juror Lashley, and evidence to be introduced tending to impeach the character of the three who made affidavit that the juror had expressed an opinion prior to the trial. Instead of the proceeding being “extraordinary,” it may be said that our courts would be a farce if verdicts could be set aside simply because some persons were found who would make an affidavit against one of the twelve jurors. In receiving the testimony of the juror, in receiving evidence from some of Iron county’s best citizens that the juror was a man of good character, and in receiving evidence that the three affiants were not men of good character, the trial court acted wisely, and as many other courts have acted in similar cases. It is nothing uncommon for affidavits to be filed similar to the ones filed in this case; and the universal rule is to permit the State to file counter-affidavits. Such has been the rule, and it has been recognized by this court, and this court has approved of it, by deferring to the action and finding of the trial court in such matters. State v. Dusenherry, 112 Mo. 295; State v. Taylor, 134 Mo. 294; State v. Latimer, 116 Mo. 524; 1 Bishop’s New Crim. Proc., secs. 949'a, 949b; State v. Gordon, 191 Mo. 133; State v. Spaugh, 200 Mo. 571. (3) No error was committed in the matter of giving and refusing instructions. State’s instruction 5, on the subject of reasonable doubt, is correctly and properly worded. State v. Thomas, 78 Mo. 341. (4) Neither was error committed in permitting the State to offer in evidence in rebuttal the records of the Iron Circuit Court, showing that the. defendant Amaleck Brooks had been convicted of manslaughter and had been sentenced to serve a term in the penitentiary. This evidence was offered and admitted for the purpose .of affecting the credibility of said defendant, who had testified not only in his own behalf, but also in behalf of his co-defendant. Sec. 4680, E. S. 1899; State v. Spivey, 191 Mo. Ill; State v. "Woodward, 191 Mo. 633; State v. Blitz, 171 Mo. 540; State v. Thornhill, 174 Mo. 370. In connection with the admission of said evidence, the State’s instruction on the subject of the conviction of defendant Ameleck Brooks (instruction 8) has been approved by this court. State v. Heusaek, 189 Mo. 312. (5) The bill of exceptions must show that the improper remarks of the attorney were made, that the defendant objected to them at the time, that his objections were overruled by the court and that defendant saved his exceptions at the time. The record in this case wholly fails to show either one of said imperative requirements. State v. McCarver, 194 Mo. 740; State v. Meals, 184 Mo. 260; State v. Bulling, 105 Mo. 226.
   GANTT, J.

On the 27th of September, 1905, the prosecuting attorney of Iron county filed an information, duly verified, charging the defendant John Brooks with murder in the first degree of John Clemonds, and in the same information charging Ameleck Brooks with being present, aiding, assisting and procuring John Brooks in commission of said murder. The defendants were duly arraigned and put upon their trial at the April term, 1906, of the Iron County Circuit Court, and were both convicted of murder in the first degree. In due time they filed their motions for a new trial and in arrest of judgment, which were overruled, and they apipeal to this court.

The evidence on behalf of the State tended to show that defendants were and are brothers, and, on the day of the homicide, resided in the town of Graniteville, in Iron county. A railroad runs east and west through the town of Graniteville, and the main street crosses this railroad track at right angles. On the south side of the railroad track and on the west side of this main street, was situated Ker win’s saloon on the date of the homicide herein described. This saloon was a few feet west of the street and about thirty feet south of the railroad track, and the building was about forty-five feet in length from east to west. Between this saloon and the railroad track was situated a rack for tying horses. The saloon had two windows opening to the north, a front door on the east, and a back door on the west end. On the east side of this main street and also south of the railroad track, was another saloon known as Steffen’s. On the 12th of August, 1905, between seven and eight o’clock in the evening, Ameleck Brooks was in Steffen’s saloon, and saw one Gus Mead sitting on the ground near the railroad track northwest of Kerwin’s and the railroad. In company with Mead there were several others and they were all drinking beer ont of a can. It was sufficiently light for people to see and recognize the members of this party from the main street. When Ameleck Brooks saw Mead and his crowd he took off his coat and gave it to Ed Belcher to hold for him and said, “Watch me.” By the side of Mead on the ground was a double-barrel breech-loading shot gun, both barrels of which were loaded with BB shot. Mead testified that he had' started out into the field to fire off his gun in order to clean it, and met these friends and stopped to drink with them. The testimony for the State tended to show that Ameleck Brooks ran up behind Mead and began to assault him. Mead resisted and got hold of his gun, when Ameleck Brooks also grabbed it and called to his uncle William to come and help him,- that John Brooks, the other defendant, rushed in at this stage of the difficulty, and drew his knife and forced Mead to give up his gun. John Brooks then compelled Mead’s companions to stand back and permit Ameleck Brooks to punish Mead by pounding him. It appears that the difficulty between Ameleck Brooks and Mead grew out of some re-marks which Ameleck Brooks attributed to Mead derogatory to Ameleck. Mead insisted that he had- not made the remarks, but that they had been made by John Clemonds. Having punished Mead, Ameleck Brooks called the deceased by name, and said that if he had any nerve he would come out and show himself. Ameleck then said to his brother John, “Shoot the first son of a b — that shows his head around the comer.” Or, as some of the other witnesses testify, “Shoot John Clemonds, the son of a b — ,when he shows his head around the comer.” The testimony indicates that the deceased also went by the name of John Hall, and some of the witnesses testified that Ameleck alluded to him as John Hall. On the part of the State the evidence further shows that while this assault on Mead was being perpetrated, the deceased, John Clemonds, was standing in front of Kerwin’s saloon, and apparently ignorant of the fight that was going on on the north side of it. Hearing his name called, he walked around the corner to the north and west and a few feet from the corner of the saloon, when he saw John Brooks with a shot gun in his hand pointing towards him. The State’s testimony tended to establish that as the deceased went around this corner in the direction of the fight, he passed between Belcher and the corner. When he discovered John Brooks, the defendant, with a shot gun, deceased turned and walked back towards the front of the saloon. Some one fired a pistol shot about this time and the shot took effect in the left lung of Ameleck Brooks, and almost simultaneously John Brooks fired the shot gun and the load took effect in the back of the deceased just above the left hip. The deceased fell on his face about three feet east of the hitching rack, his face being in an opposite direction from John Brooks. Immediately after he was shot several pér■sons took the body of the deceased into Kerwin’s saloon, but the bartender suggested that it was too warm in there and they took him out and laid him on the ground. In the deceased’s pocket was found a 38-calibre pistol, which was taken possession of by his brother, and later in the evening was turned over to the sheriff of the county, Mr. Marshall, who produced it at the trial. The evidence tended to show that there was one empty shell in the revolver, and four loaded cartridges. The State’s witnesses who were nearest to the deceased at the time he was shot were positive that deceased never fired a pistol at either of the defendants.; that he had no pistol in his hand and made no motion whatever indicating an attempt to use said pistol. These witnesses also testified that some one at least thirty feet from the deceased fired the pistol which wounded Ameleck Brooks. There was also evidence of threats made by Ameleck Brooks against the deceased at different times and places prior to the time of the homicide. Dr. Marshall, a physician residing in Ironton, was summoned and examined the body that night about ten o’clock, and he testified that he found about fifty shot had entered the back of the deceased producing the wound which caused his death.

On the part of the defendants the testimony tended to prove that Ameleck Brooks felt indignant at something Gus Mead had said about him and concluded he would chastise him; accordingly, he began striking Mead and when Mead resisted, Ameleck called for his uncle and his brother to aid him; that John Brooks then took Mead’s gun from him and stood guard while Ameleck finished his fight with Mead. In the course of their engagement, Mead denied the statements attributed to him and said that the deceased had made said statements, whereupon Ameleck called1 to the deceased to come out and own up if he was the man, and say who did it. Defendant John Brqoks testified in his own behalf that about seven thirty o’clock on the evening of the homicide, he saw the deceased coming around the corner of Kerwin’s saloon with a revolver in his right hand. “When he came around he was pointing it directly at me and I told him to stop, and he kept on coming, and I told him to put the revolver up, and just then he raised the revolver on him and fired.” He was between fifteen and twenty feet of Ameleck when he fired, and then turned right around towards me with it; Ameleck holloed “Oh! brother, come here, I am killed.” “I had the shotgun that I took away from Gus Mead, and I seen he was going to kill me and I raised the gun and fired at him.” On cross-examination, the defendant, John Brooks, stated that Ameleck was standing near Gus Mead when Clemonds, the deceased, shot him. The fight between Mead and Ameleck had ended; that deceased had his left side towards the defendant and after being shot faced to the right and fell. Ameleck Brooks, the other defendant, testified that he first saw the deceased on the 12th of August, between seven and eight o’clock in the evening. The first time he saw him deceased was standing in front of Kerwin’s saloon, and the second time he saw him he had a revolver leveled at defendant Ameleck. He was not facing Clemonds, the deceased, before the latter fired, but turned as he did so, the deceased fired, the ball hitting the witness just above the left nipple. He denied telling John Brooks to shoot the deceased. The defendant also introduced evidence tending to show that the deceased was seen in G-raniteville that evening with a pistol in his pocket. L. D. Hinch testified in behalf of the defendants that he saw Clemonds, the deceased, coming out of the saloon, heard two shots, a couple of seconds apart, one being a pistol shot, saw Clemonds come out of the saloon with a pistol in his hand, saw him fire, saw a man come around the comer of the saloon with a revolver in his hand, which was fired; this was Clemonds, the deceased; heard Ameleck Brooks call out, “1 am killed, ’ ’ and just then a shotgun was fired. Did not hear Ameleck call for Clemonds and did not hear Ameleck tell John Brooks to shoot.

In rebuttal the State proved that prior to this trouble Ameleck Brooks had been convicted of manslaughter by the circuit court of Iron county and had served a term in the State penitentiary. Other facts necessary to the understanding of the opinion will be noted in the consideration of the propositions advanced by the defendants for the reversal of the cause.

' I. The first assignment of error is founded upon the alleged misconduct and disqualification of one of the jurors, Charles Lashley, and it is alleged in the motion for new trial that he had formed and expressed his opinion of the guilt of the defendants prior to Ms examination on Ms voir dire and failed to disclose the same on his examination, and that this fact came to the knowledge of the defendants after the rendition of the verdict. In support of this ground for new trial, the defendants filed the affidavits of Frederick Mayes, Gentry Harbison and Sherman Barnes, to the effect that at the Hub Mill in Ironton in March, 1906, and before the trial of the defendants, they heard the juror Lashley, while speaking of the defendants John and Ameleck Brooks and the homicide for which they were subsequently tried, say that the Brooks boys ought to be hung, and in connection with these affidavits the defendants filed the affidavits of themselves and their counsel that the knowledge of the juror having expressed Ms.opinion of the guilt of the defendants first came to their knowledge after the rendition of the verdict. Upon the hearing of the motion, the prosecuting attorney called the juror Lashley in rebuttal of the said affidavits, and he denied having made the statements attributed to him by Mayes and Harbison, and there was also an oral examination of Mayes and Harbison before the court. After hearing the testimony pro and con and also evidence as to the good character of the juror Lashley, the court overruled the motion for new trial on this ground. Whether a juror on his examination has falsely stated that hé has not formed or expressed an opinion as to the guilt or innocence of the defendant is a matter of fact which the circuit court must determine, and this court must be. convinced that there has been a clear abuse of discretion before it will interfere with the finding of the trial court on such an issue. [State v. Gordon, 191 Mo. l. c. 133.] The juror having been charged with a grave offense, it was entirely competent for the State' to offer evidence of the bad character of the affiants whose testimony had been introduced against him, and we see no objection to the introduction of the testimony tending to show that the juror was a man of good character. The whole matter was in the discretion of the trial court as to the course that should be pursued in trying the question of the juror’s alleged misconduct in failing to answer truthfully on his voir dire examination.

II. Among other instructions the.court gave the following:

“5. You are further instructed that the defendants, in law, are presumed to be innocent, and that it devolves upon the State to prove, by evidence, to your satisfaction, beyond a reasonable doubt, that the defendants committed the crime, as charged in the information, and explained in these instructions, and if, upon a view of the whole case, you have a reasonable doubt of the guilt of the defendants, or of that of either of them, you will give them, or either of them of whose guilt you have a reasonable doubt, the benefit of such reasonable doubt, and acquit them, or either of them, of whose guilt you have a reasonable doubt. But a reasonable doubt of the guilt of defendants, or either of them, to authorize an acquittal of them, or of either of them, on the ground of such reasonable doubt of guilt must be a substantial doubt of the guilt of the defendants, or of the defendant as to whose guilt you have such reasonable doubt, formed by you on a careful consideration of all the facts and circumstances proven in the case, and not a mere possibility of the innocence of the defendants, or of that of either of them.”

Counsel for the defendants assail this instruction as unintelligible. We do not think that the instruction is obnoxious to this criticism. It gives the defendants and each of them the presumption of innocence, and requires the State to prove the guilt of defendants and each of them beyond a reasonable doubt, but advises the jurors in effect that they might convict one and acquit the other if they had a reasonable doubt as to one and not as to the other, but jf they had a reasonable doubt as to the guilt of both, they should acquit both. While the form of the instruction may be somewhat unhappy, we think there can be no doubt that it secured to the defendants the full benefit of the presumption of innocence and required the guilt of each to be established beyond a reasonable doubt. It follows that the court did not err in refusing the instructions asked by the defendants, which stated the same legal propositions.

III. The defendant Ameleck Brooks testified in his own behalf, and at the close of the evidence on behalf of the defendants, the State offered in evidence the record of the circuit court of Iron county, in the case of the State of Missouri v. Ameleck Brooks, whereby it appeared that on the 28th day of April, 1900, the said defendant had been sentenced to the penitentiary of this State for a term of three years for manslaughter in the fourth degree. To the admission of this record in evidence, the defendants at the time objected on the ground that it could not be introduced to affect the credibility of the witness. The prosecuting attorney at the time stated that he offered the record of conviction for the sole purpose of affecting the credibility of the defendant Ameleck Brooks. The court admitted the record and the defendants excepted to the ruling of the court. This action of the court is now assigned as reversible error. It should be remarked in this connection that in the eighth instruction the court advised the jury that they were to consider the record of conviction of Ameleck Brooks solely as affecting the credibility of said defendant. Section 4680', Revised Statutes 1899, provides: “Any person who has been convicted of a criminal offense is, notwithstanding, a competent witness; but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, upon .which he must answer any question relative to that inquiry, and the party cross-examining shall not be concluded by his answer. ’ ’ This section came before us for review in State v. Blitz, 171 Mo. l. c. 540, et seq. The construction placed upon that section in the last-mentioned case has been followed in State v. Thornhill, 174 Mo. 364; State v. Woodward, 191 Mo. 633, 634, and State v. Spivey, 191 Mo. l. c. 111, 112; and we see no reason for disturbing the rule announced in those cases. Nothing said in State v. Beckner, 194 Mo. 281, is in conflict with any of the foregoing decisions on this subject; it must be held, therefore, that the court did not err in admitting the record of the defendant Ameleck’s conviction at the time and for the purpose for which it was allowed.

IY. It is next insisted that the remarks of counsel for the State, in his argument to the jury, were utterly unwarranted and should work a reversal of the judgment. As to this assignment it may be said that there was a sharp1 issue made as to whether the counsel made the remarks attributed to him. But, whatever the fact, it must b'e held that the propriety or impropriety of his remarks are not before us for review. It is clear that the bill of exceptions does not shpw that the remarks were made, and that the defendants objected to them at the time, and that their objections were overruled by the court, and that defendants saved their exceptions at the time. It has been so often ruled that matters of this kind cannot be shown by affidavits that it is unnecessary to cite authorities on that proposition. [State v. McCarver, 194 Mo. l. c. 740; State v. Meals, 184 Mo. l. c. 260.]

We have examined all the errors assigned by the defendants, and in our opinion they furnish no ground for reversal and we have been unable to discover any other substantial error in the record.

The case was one peculiarly for the determination of the jury. If the jury had believed the testimony on behalf of the defendants, they might well have found that the defendants were acting upon the defensive and that the defendant John Brooks, who killed the deceased Olemonds, did so under reasonable apprehension that the deceased was about to kill him, or inflict some great bodily harm upon him. On the other hand, if the jury believed, as they evidently did believe, that the defendant John Brooks killed the deceased by shooting him with a shotgun and that Ameleck Brooks. was present, aiding, abetting and inciting his brother John Brooks to kill and murder the deceased, and that at the time the deceased had taken no part in the difficulty between Ameleck Brooks and Grus Mead, and that deceased only appeared upon the scene after hearing his name called, and simply walked around the corner of the saloon to the scene of the difficulty between Mead and Ameleck, and immediately after turning the corner, saw the defendant John Brooks with a shotgun in his hands and without making any effort to shoot either John Brooks or his brother Ameleck, turned as if to go back to the south side of the saloon, and, as he turned, was shot by the defendant, John Brooks, from the effects of which he died, then the evidence established a case of deliberate, premeditated and unprovoked murder. It was for the jury to weigh this discrepant testimony, and there was ample evidence to support the conclusion which they reached. The evidence for the State tended to show that deceased was in no manner connected with the difficulty between Mead and Ameleck Brooks, and that he did not fire the pistol shot which wounded Ameleck Brooks. The physical facts testified to by the witnesses for the State as to the wounds in the back of the deceased, and the fact that his pistol was found in his pocket after the shooting, tended strongly to corroborate the evidence of the other witnesses for the State, that the deceased had given no provocation either just or lawful to justify either of the defendants in shooting and killing him. But as already said, the question was one of fact for the jury under the instructions of the court, and we find nothing in the record which would justify this court in interfering with the verdict.

The judgment of the circuit court is affirmed, and the sentence which the law pronounces is directed to be carried into execution.

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


author: BURGESS, J.

text:
    THE STATE, Appellant, v. MOODY.
    Division Two,
    March 5, 1907.
    1. GAME AND FISH LAW OF 1905: Action for License Fees: State Proper Party. The State in its own name is the proper party to sue to recover from county clerk balance collected on hunters’ licenses issued under the Game and Fish Law of 1905.
    2. -: License Fees: Amount Clerk Is Allowed to Retain. Under the Game and Fish Law of 1905, county clerks and the license collector of St. Louis are allowed to collect but one dollar for each hunters’ license issued, out of which they may retain the sum of fifteen cents, the balance to be paid into the State Treasury.
    3. -: -: -: Rendering Sections Harmonious: Constitutional Law: Striking Words from Act. Section 57 of the Game and Fish Law of 1905 provides that county clerks and the license collector of St. Louis “shall retain out of the moneys received for each license issued the sum of fifteen cents;” section 58 provides that “any person......may procure a license ......by paying to the clerk the sum of one dollar;” section 59 provides that “the license collector of the city of St. Louis shall correspond to the county clerks of the various counties of this State......He shall issue resident hunters’ licenses and collect therefor a fee of $1.00 each, and for each license issued such license commissioner shall collect and retain for issuing the same a fee of fifteen cents.” Held, that the provisions of section 59, permitting the license collector of St. Louis to collect one dollar for each license and to “collect and retain” fifteen cents for issuing same, while county clerks are permitted to collect but one dollar, out of "which they may retain the sum of fifteen cents, would render the law unconstitutional, as not being uniform in its operation; and since a legislative intent to violate the Constitution will never be assumed if the language of the statute can be satisfied by a contrary construction, the words “collect and” will be stricken out of section 59, as having, been improvidently inserted, and when this is done the three sections will harmonize, and the license collector of St. Louis and the county clerks will be authorized to collect one dollar for each license issued, retain the sum of fifteen cents for issuing same, and turn the balance into the State Treasury.
    Appeal from Macon Circuit Court.— Hon. Nat. M. Shelton, Judge.
    Ajbtibmed.

      Herbert S. Hadley, Attorney-General, and Barnett & Barnett for appellant.
    (1) The State is a proper party plaintiff in this suit. The revenue sought to be recovered belongs to the State. It is required to be paid into the State Treasury. The fact that it is. for the use of the game protection fund does not prevent this revenue from belonging to the State, and the State is the proper party to sue for it. State v. Ruby, 77 Mo. 610'; State v. Bank, 45 Mo. 528; State v. Killian, 51 Mo. 80; 44 Am. Dig. (Century Ed.), sec. 178; Wolfee v. State, 79 Ala. 201; Gaston v. State, 88 Ala. 459; Brown v. State, 5 Colo. 496; Esley v. People of Illinois, 23 Kan. 510; Del afield v. State of Illinois, 2 Hill 159'; State v. Delesdenier, 7 Tex. 76; State v. Thompson, 64 Tex. 690; State v. Travis County, 85 Tex. 435; State v. Burke-holder, 30 W. Va. 593. (2) The court erred in sustaining the demurrer to the petition. It stated a cause of action. It was the duty of the defendant as county clerk to collect one dollar for the use of the State on each license and to collect an additional fifteen cents from the applicant as compensation for the clerk. Laws 1905, secs. 57 and 59, p. 168. The three sections pertaining to this subject must be read together as one section, and taking them together they clearly indicate that the same amount is tó be .collected from each applicant, namely, a dollar for the State and fifteen cents for the clerk. Laws 1905, secs. 57, 58, 59, pp. 168, 169.

      B. 8. Matthews, Otho F. Matthews, B. W. Barrow and J. G. 8parrotv for respondent.
    (1) The State is not the proper plaintiff. The statute provides that all suits shall be prosecuted by the game warden and that the money shall go to the State Treasurer. Could a judgment for costs be entered against the State in this proceeding, would this suit be a bar to suit by the officer entitled to receive the money? State ex rel. v. Crumb1, 157 Mo. 545. (2) The petition fails to state a cause of action. The demurrer was properly sustained. The game law authorizes the clerk to collect $1 for the license and no more. Laws 1905, p. 168, secs. 57, 58. Where the wording of the statute is plain, it is the duty of the court to construe them according to1 the words used. City of Westport v. Mastín, 62- Mo. App. 647; State ex rel. v. Johnson, 132 Mo. 105; (3) Section 59 deals solely with the city of St. Louis and is intended for nothing else; reading sections 57 and 59 together it is made plain that the collector of St. Louis is not authorized to collect $1.15 at all, but that he shall “retain” his 15 cents and remit the balance to the State treasurer. It is the mistake of the construction of the game warden in claiming $1.15 that makes the law unconstitutional as to fees, if at all.
   BURGESS, J.

This suit is brought by the State of Missouri against Nick M. Moody, clerk of the county court of Macon county, to recover a balance collected on hunters’ licenses in said county, the allegation of the petition being that defendant had, out of the one dollar on each license collected from-hunters, paid only eighty-five cents to the State Treasurer, instead of one dollar; that said licenses are issued to hunters, and one dollar for the State revenue is paid to the clerk for each license issued, by virtue of an act of the General Assembly entitled, “An Act relating’ to the preservation, propagation and protection of game animals, birds and fish, creating the office of Game and Pish Warden, creating a game protection fund, and appropriating money therefrom,” approved March 10, 1905. [Laws 1905, p. 158.]

Defendant demurred to the petition on the following grounds:

“First. Because said suit, as appears from the petition, is not brought in the name of the proper party plaintiff.

“Second. Because said petition wholly fails to state a cause of action.

‘ ‘ Third. Because, under the laws of the State of Missouri, defendant is' only authorized to collect one dollar ($1) for hunting licenses, and to retain fifteen cents for compensation for issuing same, and to remit the remaining eighty-five cents to the State of Missouri.

“Fourth. Because on the face of the pleadings it fully appears that the defendant has complied with the law.

“Fifth. Because the law governing this case is unconstitutional. ’ ’

The demurrer was sustained, and, plaintiff declining to plead further, judgment was rendered for defendant upon the. demurrer, from which judgment plaintiff, after an unsuccessful motion for a new trial, appeals.

The first point presented for consideration upon this appeal is as to whether the suit is brought in the name of the proper party. Defendant contends that the suit should be prosecuted in the name of the game warden; but under the act of March 10,1905, “creating the office of Game and Fish Warden,” all moneys collected by way of license fees and by way of fines for violations of the law are required to be paid into the State Treasury and become part of the revenue of the State. The fact that the money so collected is for the use of the game protection fund does not prevent the State from controlling it, and the State is the proper party to sue therefor.

In the case of State v. Rubey, 77 Mo. 610, the right of the State to maintain an action for her own funds, after default made in paying same into the State Treasury, is clearly recognized. The same rule is announced in Wolffe v. State, 79 Ala. 201; Gaston v. State, 88 Ala. 459; Esley v. People of Illinois, 23 Kan. 510; Delafield v. State of Illinois, 2 Hill 159; State v. Delesdenier, 7 Tex. 76; State v. Thompson, 64 Tex. 690; State v. Travis County, 85 Tex. 435; State v. Burkeholder, 30 W. Va. 593.

In the case of Brown v. State, 5 Colo. 496, it is said: “It is the accepted law that a State, as a political corporation, may maintain, in its corporate name and in its own courts, actions for the enforcement of its rights or the redress of its wrongs, independently of any statutory provision therefor. The right springs from the general principle that every person, whether natural or artificial, capable of making a contract or suffering wrong, may have an action to enforce the one and to redress the other.”

It is insisted by defendant that the demurrer was properly sustained because, under the law, the county clerks are to collect one dollar for each license issued, and out of that sum retain fifteen cents and pay the remaining eighty-five cents into the State Treasury.

Section 57 of the act, after providing that county clerks and the license collector of the city of St. Louis shall issue resident licenses, further provided that, “such clerk and the license collector of the city of St. Louis shall retain out of the moneys received for each license issued the sum of fifteen cents, which shall cover the swearing of the applicant to the affidavit herein referred to, and all other services under this act, and shall pay the balance to the State Treasurer on the first day of each month, and report to the State Game and Fish Warden the number of licenses issued and the amount of money remitted to the State Treasurer on the first day of each month.” There is no ambiguity in this section of the statute, for it says, in plain and unequivocal language, that the county clerk and license collector of the city of St. Louis shall retain out of the moneys received for each license issued the sum of fifteen cents, which shall cover the swearing of the applicant to the affidavit and all other services under the act, and shall pay the balance to the State Treasurer. It will, however, be observed that no provision is made by this section for the payment of the license fee; but this is provided for by section 58, as follows:

“Any person who has been a bona fide resident of this State for six months then last past may procure a license for himself or herself by filing his (or her) affidavit with the clerk of the county where he or she resides . . . paying to the said clerk the sum of one dollar.”

Section 59 of said act provides that, “for the purpose of carrying out the provisions of this act, the license collector of the city of St. Louis shall correspond to the county clerks of the various counties of this State. . . . He. shall issue resident hunters’ licenses and collect therefor a fee of $1 each, and for each license issued such license commissioner shall collect and retain for issuing the same a fee of fifteen cents.”

The only express provision in the act for the payment of license fees in the counties of the State is in section 58, and that provides for the payment of only one dollar to the clerk of the county, no provision being made therein for the payment of fees for taking and filing the affidavit of the applicant for a hunter’s license. This, however, is provided for by section 57, as has been seen.

Plaintiff insists that as it is provided by said section 59 that the license collector of St. Louis corresponds, for the purposes of the act, to the county clerks of the various counties, they are, therefore, on the same level, have the same functions to perform, get the same fee and collect it in the same manner; also, that sections 57, 58 and 59 must be read together as one section, and that, taking them together, they clearly indicate that the same amount is to be collected from each applicant for a license, namely, a dollar for the State, and fifteen cents for the clerk.

It was evidently the purpose of the lawmakers to make the law under consideration applicable alike to all citizens of the State, or, in other words, uniform in its application. The license of the resident of the city of St. Louis entitles him to the same privileges as does the license issued by the clerk of a county to a resident of such county; and the law should be so construed, if by any fair construction this can be done. A law not uniform with respect to the same class of subjects would be unconstitutional. [Sec. 3, art. 10, State- Constitution.]

"While we think that sections 57, 58 and. 59 of the act should be construed together, we do not think the construction contended for by plaintiff the proper one, because, as we have said, by the provisions of section 57, the county clerks and license collector of the city of St. Louis are entitled to retain out of the moneys received for each license the sum of fifteen cents. Thus, by the express provisions of this section, county clerks and the license collector of the city of St. Louis are entitled to retain out of the license fee collected by them upon each license issued the sum of fifteen cents; and there is no provision in the act to the contrary.

Conceding that, for the purpose of carrying ont the provisions of the act, the license collector of the city of St. Louis shall correspond to the county clerks of the various counties, as provided by section 59', if we eliminate from that section the words ‘ ‘ collect and, ’ ’ in the third sentence, which words seem to indicate that the license collector of St. Louis is entitled to collect and retain fifteen cents, exclusive of the license fee, said sentence would read as follows: “He shall issue resident hunters’ licenses and collect therefor a fee of one dollar each, and for each license issued such license commissioner shall retain for issuing the same a fee of fifteen cents.” By such elimination and construction this section will be in perfect harmony with the other two; and all three, taken and considered together, will make the law uniform in its operation, as was evidently the intention of the Legislature. It was certainly not the intention of the Legislature that a resident of the city of St. Louis should pay more for a hunter’s license applied for and "taken out in that city than should a resident of a county for such license applied for and obtained in such county; for such a law would be clearly unconstitutional. “A legislative intent to violate the Constitution is never to be assumed, if the language of the statute can be satisfied by a contrary construction.” [Endlich on Interpretation of Statutes, sec. 178.] “It is our duty to uphold the act unless it plainly and clearly violates the fundamental law of the State, and, if its language is susceptible of a meaning that will remove the objections to its validity, such an interpretation should be adopted.” [State ex rel. v. Pike County, 144 Mo. 275; Milwaukee Industrial School v. Supervisor, 22 Am. Rep. 702-711.]

By striking out the words indicated, as having been improvidently inserted, the sections under consideration are readily understood, and of practical effect. “In pursuing this course we do but follow well-approved precedents, and allow the reason of the law to prevail over the letter; ‘for the letter killeth, but the spirit maketh alive.’ ” [Bingham v. Birmingham, 103 Mo. 345; State ex rel. v. Pike County, supra; St. Louis v. Dorr, 145 Mo. 466.] In Bingham v. Birmingham, supra, eight words were stricken out <¡>f a statute in order to conform to the plain intent of the Legislature to make all sections of the law harmonize.

For the reasons stated the Judgment should be affirmed. It is so ordered.

All concur.