text:
    THE STATE v. FRAGA, Appellant.
    Division Two,
    November 20, 1906.
    1. SELF-DEFENSE: Defendant’s Testimony: Instruction. Where defendant’s own testimony shows that he had taken the gun away from the deceased, and that when he shot her she was making no effort to get possession of it and had no weapon in her hands, he is not entitled to an instruction on self-defense.
    2. -: -: Contrary to Physical Facts: Instruction. Where defendant’s testimony that he shot the deceased in self-defense Is clearly irreconcilable with the physical facts connected with and surrounding the homicide, the defendant is not entitled to an instruction on self-defense, and under the evidence in this case the court properly refused to give such an instruction.
    Appeal from St. Louis City Circuit Court. — How. Robt. M. Foster, Judge.
    Affirmed.

      Claiborne & Shcmer for appellant.
    The court failed to instruct the jury on the law governing self-defense. This the court should have done, even though there was no testimony to justify such instruction except that of the defendant alone. State v. Palmer, 88 Mo. 573; State v. Partlow, 90 Mo. 626; State v. Banks, 73 Mo. 592; State v. Brown, 104 Mo. 373; State v. Hollingsworth, 156 Mo. 178; State v. Fredericks & Langan, 136 Mo. 51.

      Herbert 8. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for the State.
    The court did not err in failing to instruct the jury on the law of self-defense. (1) “The law of self-defense is the law of necessity. Taking life cannot be justified and is not justifiable when it can be safely avoided.” Kelley’s Crim. Law & Prac., sec. 517. “Self-defense is an affirmative, positive, intentional act,” and it must appear that the slayer believed that in order to avoid the danger it was necessary for him to take the life of the deceased. State v. Gilmore, 95 Mo. 554; State v. Dettmer, 124 Mo. 426; State v. Tabor, 95 Mo. 585; Kerr’s Law on'Horn., sec. 180; p. 203; 25 Am. and Eng. Ency. of Law, 258. (2) “When witnesses attempt to establish a certain theory by their testimony, they must first look'to it well that their testimony must not go counter to the physical facts in the case; for if it does, neither courts nor juries are required to stultify themselves by disbelieving the immutable physical facts in the case, and so we have said on a number of occasions.” State v. Turlington, 102 Mo. 642; State v. Bryant, 102 Mo. 24; State v. Anderson, 89 Mo. 332; State v. Nelson, 118 Mo. 124; State^v. Nocton, 121 Mo. 537; State v. Hancock, 148 Mo. 488; State v. Pollard, 139 Mo. 220.
   BURGESS, P. J.

Under an information duly filed by the circuit attorney of the city of St. Louis, in the circuit court of said city, charging the defendant with murder in the second degree for shooting to death with a pistol one Julia Lamm at said city on the 2nd day of October, 1904, the defendant was found guilty of the offense charged and his punishment fixed at imprisonment in the penitentiary for ten years. He appeals.

The facts as stated by the State are substantially as follows:

Defendant, Charles Praga, at the time of the homicide, was living in a rented room in the rear of the basement of a rooming house at 3216 Locust street in said city of St. Louis. This house was then being conducted by Mrs. Maggie S. Hardin as a rooming house. The defendant had moved to this room on the 4th of August next preceding and had been living there about two months. When he rented the room he told Mrs. Hardin that he had a wife, and on Monday next before the homicide, he asked her if his wife could come there to live with him. Mrs. Hardin gave her consent and on Wednesday of the same week Julia Lamm, the deceased, whom the defendant represented to be his wife, moved her property into the defendant’s room and came there to live. The deceased was not defendant’s wife, but was a woman whom he had known for two years and who had frequently visited the defendant at his room before she came there to live. About half past ten o’clock Saturday night, October 2, 1904, a light was seen burning in the defendant’s room. Mrs. Harding, the landlady, was sleeping that night in the room directly above the defendant’s room, and a guest, Mr. Downing, was sleeping in one of the other rooms in the basement. About one o’clock Mr. Downing was awakened by what he thought was a shot, and he thinks he heard at the same time a woman scream. Two more shots were fired in succession and then there was an interval of two or three minutes. Then there were two more shots in succession followed by another interval of about five minutes. During this second interval, a person was heard opening the outside door and striking matches. Then there was a sixth shot; this was followed by a silence of several minutes. Then someone was heard calling. The shots and the movements of the person in the basement were heard by Mr. Downing and Mrs. Harding and each got up to see what was the matter. The police were called and the defendant was found lying in the door leading from his room into the adjoining room, the greater part- of his body being in the latter room. He was calling, “Help! Help!” The light was burning low in the defendant’s room, and the deceased was found lying across the bed, on her right side, dead. Her clothes were on and her feet were hanging over the side of the bed and nearly touching the floor. She was holding a letter in her right hand, which letter was offered in evidence.

The defendant was taken to the hospital, and found to be suffering from three pistol shot wounds on the breast near the left nipple, the wounds being not over an inch apart. In each of two of the wounds the bullet had struck a rib and was deflected around the body and lodged in the back. The bullet making the other wound broke away a part of the rib and pierced the lung. The first two wounds described were not serious, and though the defendant, when taken to the hospital, was suffering from a shock, the effect of the third wound, which wound was of a serious character, he soon recovered, and was able to leave the hospital in about a month. The post-mortem disclosed three bullet wounds on the body of the deceased, two of which were necessarily fatal, and either of which would have caused almost instant death. One wound in the chest, and midway between the middle line of the breast bone and the left nipple, was powder stained, and contained particles of powder. The bullet which made this wound passed entirely through the heart and lodged near the spinal column. The second wound was found on a line drawn straight down from the arm pit on the left side at a point below the sixth rib. This bullet passed from left to right into the chest, passed through the lower part of the left lung and embedded itself in the spinal column. The third bullet entered the head at the juncture of the ear with the head at a point over the left temple bone. This bullet passed directly through what is called the temple lobe of the brain and embedded itself in the middle part of the skull below the temple lobe, in which place it was found. The two wounds last described were not powder burned. A person receiving such a wound as the deceased received in the heart, according to the testimony, would drop immediately, and the wound in the breast was also fatal, and would probably cause the deceased to drop when she received it. The deceased was lying as if she had been sitting on the edge of the bed and had dropped back on her right side, with her head towards the head of the bed and the feet hanging towards the floor. ' The lighted lamp was found on the table right in front of the bed and a revolver was lying on the same table open, or what is called “broke.” There was one empty shell in the revolver, and the extractor had jumped over the cartridge so that the shell could not be gotten out or the revolver closed; and it was shown by the evidence that such a revolver was liable to get in that condition by having only one cartridge in it at the time it was discharged. One empty shell was fonnd on the table and three on the floor, making in all five empty shells. On the dresser was found a sheet of paper, on which the defendant had written a note, stating that he had been shot by Julia Lamm. In the right hand of the deceased was found an envelope containing a letter which was partly out of the envelope. This letter, which was offered in evidence, was from N. Castillo, Camp of Philippine Scouts at the World’s Fair, and requested the woman to meet the writer at the date stated. The room in which the homicide occurred was a very small room; it contained a washstand, upon which stood a pitcher of water; a table, on which stood the burning lamp; and a dresser, together with a bed and trunk, leaving little more than enough room for two people to pass. Nothing in the room indicated that any struggle had taken place.

The defendant was a witness in his own behalf and testified that the woman, Julia Lamm, who had been out during the day, came to his room that night shortly before the homicide in an intoxicated condition; that a quarrel arose because of her conduct, and because of a letter the defendant had found in her absence, addressed to her in the name of Julia Miller; that the deceased got the revolver from the dresser and shot the defendant three times, and he fell to the floor and became unconscious; that he soon regained consciousness, and was suffering greatly from his wounds, and wanted a drink of water; that he saw the deceased in front of the dresser as though reloading a revolver; that he went to the washstand to get a drink, and saw the revolver in the deceased’s hands, reached for it and got hold of her arm; that a struggle then followed over the possession of the revolver in which 'one shot was accidentally fired; that the defendant then got the revolver away from the deceased, and in his own language, “Without thinking any more I just passed the revolver from the left hand to the right and pointed at her and fired two shots; ’ ’ that he saw her fall towards the bed, and he fell to the floor, where he lay for some time, but finally got to the foot of the bed and got a towel to put on his wounds, and took a drink of water from the pitcher; that he then went to the dresser, opened the drawer and got a tablet on which he wrote the note offered in evidence, stating that he had been shot by Julia Lamm.

As a witness in his own behalf the defendant was asked the following questions by his counsel, and gave the following answers:

“Q. Now, had you madé any motion to hurt her in any way before she fired that shot? A. No, I did not have any time to.
“Q. When you got the gun away from her, and did shoot her, why did you shoot her, for what purpose? A. Because I knowed if she got hold of that gun she would kill me — shoot me again.
“Q. Because you thought she was going to kill you? A. Yes, sir.”

The court instructed on murder in the second degree, manslaughter in the fourth degree, presumption of innocence and reasonable doubt, but did not instruct on self-defense. Defendant excepted to all of the instructions and to the failure of the court to instruct the jury on all the law governing the case.

Among the grounds assigned in the motion for a new trial and the only ones insisted upon in this court for a reversal of the judgment are the 6th and 7th, which are as follóws:

‘ ‘ 6th. The court erred in not properly instructing the jury on the law governing the evidence in the case.
“7th. The court failed to instruct the jury on the law governing self-defense.”

As it is not suggested in the 6th ground, however, in what particular the court erred in not properly instructing the jury on the law governing the evidence in the case, but it is asserted in the 7th ground of the motion that the court failed to instruct the jury on the law governing self-defense, we assume that they both have reference to the same thing; that is, the failure of the court to instruct upon self-defense. Upon this theory of the case defendant insists the court should have instructed even though there was no evidence to justify such an instruction except that of the defendant alone. The question therefore is, was defendant entitled to such an instruction upon his own version of the homicide? In State v. Dettmer, 124 Mo. 426, Sherwood, J., in passing upon the right of the defendant to an instruction upon self-defense, held that he was not, saying: ‘ ‘ The right of that nature is not to' be invoked unless all other means fail; it is the dernier ressort, and in order to justify a homicide on the ground of self-defense, the doer of the homicidal act must have done everything in Ms power, consistent with his safety, to avoid the danger and to avert the necessity; and he must retreat, if retreat be practicable. [Kerr’s Law of Hom., sec. 180, p. 203, and cases cited; State v. Gilmore, 95 Mo. 554.]”

If it is true, as defendant testified, that a quarrel took place between himself and deceased; that the deceased got the revolver from the dresser and shot him three times, and he fell on the floor and became unconscious ; that he soon regained consciousness, saw deceased in front of the dresser as though reloading the revolver, saw it in her hands, reached for1 it and got hold of her arm; that a struggle then followed over its possession, in which one shot was fired; that he then got the revolver away from the. deceased and without thinking any more just passed it from Ms left hand to ■his right and pointed at her and fired two shots, and saw her fall towards the bed, it is inconceivable how defendant could have shot the deceased in self-defense, or, in other words, how he could have been afraid she would take the gun from him, which he had just taken from her, and kill him, when at the time he shot her he had the weapon in his own hands. Nor is there any reason disclosed by the record why defendant could not have withdrawn from the room when the shooting occurred, after he had gotten the pistol in his own hands, and thus escaped- any apprehended danger; but rather' than do so he changed the pistol from his left to his right hand, pointed it at deceased who was then unarmed, making no effort to assault him, and fired two shots and saw her fall, and now claims to have acted in self-defense in shooting and killing her. If he shot her twice as soon as he changed the pistol from his left to his right hand, without thinking any more, he did not shoot as claimed, because he had no good reason to believe that deceased was then about to assault him with the pistol or do him some great bodily harm, which was absolutely necessary in order to justify him in shooting her in defense of his person.

The evidence, in our opinion, conclusively shows that defendant did not shoot the deceased in self-defense. Moreover, the matters testified to by defendant as a justification for shooting and killing the deceased are clearly inconsistent with the physical facts. There can be no question under the evidence but that the first three shots were fired by the same person, for they were fired in rapid succession and out of the same pistol, for there was no evidence that there was any other pistol used. The evidence shows that there were six shots fired and that three of them took effect upon the deceased and three upon the defendant. There were but five chambers in the pistol, and it must of course have been reloaded after the first shot was fired. According to the defendant’s testimony, after he regained consciousness and before the last three shots were fired he saw the deceased in front of the dresser as if reloading the pistol. Under the facts and circumstances the pistol could not have been reloaded by the deceased. No empty cartridges were removed from the pistol after the last shot was fired, only one empty cartridge was fonnd in the pistol,, and as three shots were fired after the time defendant testified that the deceased reloaded the gnn, and as two of the wonnds received' by the deceased were fatal and must have produced almost instant death, it is perfectly clear that the deceased did not reload the gun. Besides, there was an interval between the fifth and sixth shots. Between the two last shots a person was heard moving about in the room, striking matches and opening the door, and immediately thereafter the sixth and last shot was fired. The only logical conclusion to be deduced from these facts is' that the defendant, after killing the deceased, shot himself with the two remaining loads and afterwards placed the sixth cartridge in the pistol and fired the sixth and last shot. No struggle was shown to have occurred preceding the homicide. The character and location of the wounds received by the deceased, the position of the body when found lying on the bed on her right side holding a letter in her right hand as if she had been sitting on the side of the bed reading it, and when shot had fallen back on the bed in the position that she was in when found, almost conclusively shows that the deceased was killed by the three first shots. These facts are clearly inconsistent with defendant’s account of the homicide and irreconcilable with the theory that the homicide was committed in self-defense. For this further reason defendant was not entitled to an instruction upon the ground of self-defense. [State v. Hancock, 148 Mo. 488; State v. Pollard, 139 Mo. 220; State v. Brown, 119 Mo. 527; State v. Nelson, 118 Mo. 124; State v. Turlington, 102 Mo. 642; State v. Gilmore, 95 Mo. 554.]

Our conclusion is that the judgment should be affirmed. It is so ordered.

All concur.


source: Caselaw Access Project

author: FOX, J.

license: Public Domain

text:
    THE STATE v. WILLIAMS, Appellant.
    Division Two,
    November 20, 1906.
    1. CONFLICTING EVIDENCE: Province of Jury. It is the province of the jury to settle conflicts in the testimony and if there is substantial testimony to support the jury’s finding, the appellate court will not interfere.
    2. NEW TRIAL: Newly Discovered Evidence. A motion for new trial on the ground of newly-discovered evidence, which merely states that new evidence has been discovered, without setting forth the nature and character of such evidence, is properly overruled.
    Appeal from St. Louis City Circuit Court. — Hon. Jas. E. Withrow, Judge.
    Aeeir.med.

      Herbert S.. Hadley, Attorney-General, and N. T. Gerdry, Assistant Attorney-General, for the State.
    (1) In his motion for a new trial, defendant alleges that he has discovered new and material evidence; but does not even state what said evidence is, which, of course, is insufficient to give him a new trial. State v. Sublett, 191 Mo. 175; State v. Bowman, 161 Mo. 94; Graham & Wat. on New Trials, 470. (2) The evidence clearly shows that defendant is guilty of both burglary and larceny. State v. Hecock, 83 Mo. 531; State v. Higgins, 88 Mo. 354; State v. Gazelle, 30 Mo. 92; Rex v. Walsh, 1 Mood. C. C. 14; Delk v. State, 64 Miss. 77; State v. Chambers, 22 W. Va. 779; Harrison v. People, 50 N. Y. 518; State v. Green, 81 N. C. 560; Eckles v. State-, 20 Ohio St. 508; Underhill on Crim. Evidence, sec. 293; 4 Elliott on Evidence, sec. 3051; 2 Bishop’s Crim. Law, secs. 794-806.
   FOX, J.

This cause comes here by appeal on the part of the defendant from a judgment of the circuit court of the city of St. Louis convicting him of burglary and larceny.

The indictment upon .which this prosecution is predicated is as follows:

‘ ‘ The grand jurors of the State of Missouri, within and for the body of thé city of St. Louis, now here in court, duly impaneled, sworn and charged, upon their oath present, that Frank Smith and Rube Williams on the eighteenth day of- March in the year of our Lord one thousand nine hundred five, at the city of St. Louis' aforesaid, into a certain store, shop and building of William Ireland, there situate and being, feloniously and burglariously, forcibly did break and enter with intent then and there and thereby feloniously and burglariously to steal, take and carry away certain goods, wares, merchandise, other valuable things, and personal property in the said store, shop and building, then and there kept and deposited, and in the said store, shop and building four set of harness, all of the value of forty dollars lawful money of the United States of the goods, wares, merchandise, other valuable things and personal property of the said William Ireland, in the said store, shop and building, then and there being found, then and there feloniously and burglariously did steal, take and carry away, with the intent then and there to deprive .the owner of the use thereof and to convert the same to his own use; against the peace and dignity of the State.”

A severance was granted the defendant and he was tried at the June term, 1905.

The State’s evidence tended to prove that William Ireland was in the teaming business, and that his stable was located at No. 1417 Gaty street,.St. Louis. In this stable were kept a number of sets of harness, some feed, wagons and horses; the harness being worth between forty and fifty dollars. At seven p. m. on the evening of the alleged burglary, said stable doors were closed and locked. Defendant had been in Mr. Ireland’s employ, but had quit work about one week before, having had a misunderstanding with him over twenty-five cents. Frank Smith had also worked for Mr. Ireland and had quit a short time before. A little while after Mr. Ireland left his stable, one of the neighbors saw the defendant and Smith go to the stable door, try to pick the lock and then make a second effort to pick it. In a little while the door was opened, and the two men entered the stable. Mr. Ireland was notified and he and some other persons went into the stable or barn and saw the defendants in the act of lifting the harness off the hooks, where it was hanging. Defendant and Smith dropped the harness and ran down the alley, but were captured a short distance away.

The evidence for the defendant tended to show that he was not at the stable and did not take part in the burglary; but, on the contrary, was on another street, and had a fight with Mr. Ireland at that time. That the officers ran up and caught defendant, who was standing with a brick in his hands, having had another dispute with Mr. Ireland over a quarter. That defendant was not with and did not see Frank Smith that afternoon or evening.

At the close of the evidence the court instructed the jury and the cause was submitted to them for consideration. The jury returned a verdict finding the defendant guilty of burglary and larceny as charged in the indictment, and fixed his punishment for the burglary at five years imprisonment in the penitentiary and two years additional for the larceny. Judgment and sentence were rendered in accordance with the verdict, and from that judgment the defendant prosecuted his appeal to this court, and the record is now before us for consideration.

OPINION.

The defendant is not represented in this court; however, in obedience to the provisions of the statute we have carefully considered the entire record which fully sets forth what was done in the trial of this cause.

I.

The court at the close of the case gave eight or nine instructions to the jury. We have considered carefully all of the instructions given by the court; we see no necessity for reproducing them here. It is sufficient to say that they fully and fairly presented the law applicable to every phase of the case to which the testimony was applicable. They are in perfect harmony with the uniform rulings of this court applicable to the offense with which the defendant was charged. There is no ground of complaint that can be seriously urged against the law as declared by the court.

II.

We have read in detail the testimony of the various witnesses, both for the State and the defendant, testifying in this cause, and we find that this is simply one of those cases in which there is a conflict of testimony. If the jury to whom the cause was submitted and who had the facts to deal with in this case, and who had the witnesses before them detailing such facts, believed the testimony as offered by the State, then it will not be seriously contended that there was not ample testimony upon which to base the conclusions as reached by the jury. If the jury believed the testimony as offered by the defendant, beyond dispute he was entitled to be acquitted. It was clearly the province of the jury to determine the facts, and unless we are willing to overturn all the previous rulings of this court, there being substantial testimony supporting the finding of the jury, such finding will not be disturbed for the reason that there was some conflict in the testimony.. We see no sound reason for changing the rules as announced by this court applicable to the subject of deference to be paid to the finding of facts by a jury when there is substantial testimony upon which to base their finding.

III.

We have critically analyzed the record upon the complaint of appellant in his motion for new trial upon the subject of the improper admission and exclusion of testimony offered during the progress of the trial, and we are unable to find any substantial ground upon which to predicate such complaint, and in our opinion it has no merit.

iy.

In the motion for a new trial it is alleged that the defendant has discovered new and material evidence. An examination of the record, however, fails to disclose any statement or even a suggestion of what such evidence consists. Upon this state of the record it is unnecessary to cite authorities to show that the mere statement that new and material evidence has been discovered, without setting forth the nature and character of such evidence, is insufficient to warrant the court in granting a new trial.

V.

The court by its instructions fully and fairly presented the law applicable to this case. It correctly told the jury what it took to constitute burglary and larceny; fully explained to them the presumption of innocence that attended the defendant and that the burden of establishing the guilt of the defendant beyond a reasonable doubt rested upon the State. The court also embraced in its declarations of law the defense interposed by the defendant, that of an alibi, and very clearly and in harmony with the rulings of this court, as well as the courts of many other States, presented the question as to what would constitute a sufficient asportation of the goods charged to have been stolen. The testimony of the prosecuting witness fully warranted the jury in finding the essential element of larceny, that of asportation of the property charged to have been stolen.

"We are unable to find any reversible error disclosed by the record in this cause, and failing to find any such error, there is nothing left to he done except to announce the affirmance of the judgment, and it is so ordered.

All concur.


author: GANTT, J.

text:
    THE STATE v. FORSHEE, Appellant.
    Division Two,
    November 20, 1906.
    1. DECLARATIONS OF CO-CONSPIRATOR: After Enterprise Accomplished. Declarations of a co-conspirator, made after the common criminal enterprise had been accomplished, and merely narrative of .past occurrences, are inadmissible against another conspirator.
    2. -: Evidence: Rape. The statement of another party, made in the presence of defendant several hours after the alleged rape, that he had had intercourse with some woman, was inadmissible against the defendant on trial for rape.
    3. RAPE: Sufficiency of Evidence. Evidence held insufficient to justify a conviction for rape.
    Appeal from St. Francois Circuit Court. — How. Bobt. A. Anthony, Judge.
    Reversed and remanded.

      B. H. Boyer and J. N. Burks for appellant.
    (1) The prosecutrix in a trial for rape must he corroborated, and where her testimony as to the perpetration of the alleged offense is explicitly contradicted by the defendant, thus - creating equipoise of oath against oath, the evidence will be insufficient to support a conviction. State v. Patrick, 107 Mo. 147; State v. Dusenberry, 112 Mo. 277. (2) Even had the State proved a conspiracy between Willis and the defendant to ravish the prosecutrix, yet the alleged statements were made after the accomplishment of the alleged crime, and could not be admitted in evidence against defendant unless made in his presence and hearing. State v. Ross, 29 Mo. 32; State v. Burnham, 82 Mo. 67; State v. Fredericks, 85 Mo. 145; State v. Reed, 85 Mo. 194; State v. McGraw, 87 Mo. 161; State v. Minton, 116 Mo. 605. (3) The alleged statements of Willis admitted by the court as evidence against this defendant,, were made at a subsequent time, were merely narrative of past events and were absolutely inadmissible for any purpose. State v. Melrose, 98 Mo. 594; State v. Hilderbrand, 105 Mo. 318; State v. Martin, 124 Mo. 514; State v. Minton, 116 Mo. 605; State v. Brennan, 164 Mo. 509; State v. Harris, 150 Mo. 61.

      Herbert S. Hadley, Attorney-General, and N. T. ■ Gentry, Assistant Attorney-General, for the State.
    (1) Counsel are right in saying that statements made by the co-conspirator Willis, made in the absence of the defendant, and -made after the conspiracy had ended, were not admissible in evidence against the defendant. In this instance, however, the statements of Willis, made to the witness Rose at the Blue Goose saloon, were admissible for two reasons: first, because the witness Rose testified that defendant and Willis were then together; and second, because Willis was a witness for defendant, and denied making such statements to Rose. State- v. Forsha, 190 Mo. 325. (2) The statements of defendant’s witness Willis, even though they related to past events, did not make them inadmissible for the purpose of contradiction. 2 Wigmore on Evid., sec. 1005-. (3) Although the statements of Willis were not a part of the res gestae, they were admissible for the purpose of showing that Willis had not testified truthfully in one matter which was closely connected with the crime charged and in relation thereto. State v. Tolbert, 73 Mo. 370 ; State v. Hughes, 71 Mo. 633. (4) The evidence is sufficient to justify the verdict. Pleasant v. State, 13 Ark. 377; Rice v. State, 35 Fla. 239; 2 Bish. New Crim. Law, sec. 1119; Kelley’s Crim. Law, see. 540; Barnett v. State, 83 Ala. 45; Block v. State, 119- G-a. 751; State v. Napper, 141 Mo. 406; State v. Berzaman,. 10 Wash. 278; State v. Dilts, 90 S. W. 786; State v. Urspruch, 90 S. W. 451; State v. Marcks, 140 Mo. 656.
   GANTT, J.

On the 14th of April, 1904, the prosecuting attorney of St. Francois county began this prosecution by filing an information, duly verified, in the office of the clerk of the circuit court of said county, wherein he charged the defendant with rape on Emily Cowan, in said county, on the 6th day of December, 1903.

The defendant was arrested and arraigned, and pleaded not guilty. On the 10-th of August, 1904, he was put upon his trial and convicted and sentenced to the penitentiary. After unsuccessful motions for a new trial and in arrest of judgment, he appealed to this court.

The information is in proper form and we discover no error in the formal proceedings. The errors assigned relate to the alleged improper admission of testimony and to the alleged insufficiency of the evidence to sustain the verdict.

I. The first contention for defendant is that the circuit court erred in admitting in evidence the statements of Willis, made in the presence of defendant, to the witness Rose at the Blue Goose saloon, after the perpetration of the alleged offense. It is admitted by the State that statements made by one of two or more alleged conspirators after the commission of the offense are not competent.

It is the settled law of this State that declarations of a co-conspirator, made after the common criminal enterprise has been accomplished and merely narrative of past occurrences, are inadmissible against another conspirator. To be competent they must be either acts in themselves or accompany and explain acts done in pursuance of the concerted criminal purpose, during the pendency of the common criminal enterprise. [State v. Melrose, 98 Mo. 594; State v. Hilderbrand, 105 Mo. 318; State v. Minton, 116 Mo. l. c. 615; State v. Brennan, 164 Mo. l. c. 509.]

But it is insisted by counsel for the State that the evidence Of the witness Rose was admissible for the reasons, first, that the alleged statements of Willis, the co-conspirator, were made when defendant was present ; and, secondly, in impeachment of Willis, who was a witness for defendant.

We have carefully noted all the testimony of the witness Rose on this point. He testified that about 11 o’clock that night defendant and Willis came to the saloon and while there Willis alluded to Ms having had intercourse with some old woman. It is perfectly plain that if any reliance whatever is to be placed upon the testimony of Mrs. Cowan and her children, the occasion to which Rose alludes was several hours after the alleged rape and when the common enterprise had ended. The statement of Willis on the theory that he was an accomplice was clearly inadmissible. The mere fact that defendant was in the saloon when Willis made the statement testified to by Rose did not make it competent.

Defendant was not called upon to make any statement himself, nor can he he held responsible for what Willis said at that time. While it was entirely competent to impeach Willis, the statements made by Rose were not contradictory of the evidence given by Willis or of any fact or statement to which his attention was called. That these statements alleged to have been made by Willis, placed before the jury with the sanction of the court, were highly prejudicial, is perfectly obvious.

II. As to the other contention of counsel for defendant, that the testimony was not sufficient to sustain the verdict of guilty, it is always a delicate duty for this court to pass upon the sufficiency of testimony, but it is our duty to see that no citizen is deprived of his life, liberty or property without a fair and impartial trial. The offense charged in this case is one of the most heinous, but if the story of the old lady is true it was a most unnatural one. That a young man of twenty would forcibly outrage an old woman of seventy-five years of age, under the circumstances related by her, calls for unlimited credulity, but conceding that an assault was made, the testimony of the. old lady herself was so contradictory that the verdict can not be allowed to stand. According to her own statements there was no penetration, and hence no rape. But if it be said that by other statements of Mrs. Cowan the jury could have found there was a penetration, as she was the only witness on this point no man should be incarcerated in the penitentiary upon such contradictory evidence from the same witness. We think no good purpose will be subserved by spreading the evidence of Mrs. Cowan on the records of this court. We have read it, and that of her daughters, and this testimony is so hopelessly conflicting and contradictory that it is difficult to conceive of a jury convicting the defendant upon such a showing. "Without the incompetent testimony, to-wit, the statements of Willis, we think no such verdict would or could have been reached.

For the error noted and with the admonition that unless more trustworthy testimony can.be obtained this prosecution should be discontinued, the judgment is reversed and the cause remanded.

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


author: BURGESS, P. J.

text:
    THE STATE v. ARTHUR SPAUGH, Appellant.
    Division Two,
    November 20, 1906.
    1. ASSAULT WITH INTENT TO KILL: Information: Surplus-age. The words “on purpose” and “a deadly weapon,” used In an information charging assault with intent to kill, should be treated as surplusage.
    2.-: Evidence of Physician: Weapons: Intent. No error was committed in permitting an experienced physician, who saw and dressed the wounds of the prosecuting witness a few minutes after their infliction, to testify that “knucks when applied to the head and body would be a deadly weapon.” This evidence was admissible for the purpose of showing that the assault was made with intent to kill, and that an instrument was used which was adequate for the accomplishment of the purpose intended.
    3. -: Evidence: Carrying Pistol. Evidence that defendant had a pistol upon his person at the time he made the assault was admissible as tending to show the character of the man, and that he was prepared for any emergency which might arise on such an occasion.
    4. -: Excessive Verdict. The verdict imposing a punishment of two years in the penitentiary for assault with intent to kill, is not, under the evidence in this case, excessive or cruel.
    Appeal from Iron Circuit Court. — Eon. E. M. Dearing, Judge.

      ArEIRJMED.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The information, which was duly sworn to by the prosecuting attorney, is sufficient. It follows the language of the statute, and the approved form; the second count was the one upon which defendant was convicted. State v. Chumley, 67 Mo'. 41; State v. Seward, 42 Mo. 206; Kelley’s Crim. Law, sec. 579. (2) No error was committed by the trial court in admitting the evidence of Dr. Marshall to the effect that, in his opinion, a pair of brass, knucks was a deadly weapon. State v. McLaughlin, 149 Mo* 27. Neither was error committed in permitting the State’s witnesses to testify that defendant had a pistol at the time he committed this assault. True, defendant was not charged with assaulting Ake with a pistol, but rather with a pair of brass knucks; but all that the defendant did and said at the time of the commission of the alleged crime was admissible as a part of the res gestae. State v. Dettmer, 124 Mo. 433; State v. Nelson, 166 Mo. 202; State v. Pennington, 124 Mo. 388. (3) Two years in the penitentiary is neither excessive nor cruel punishment for a defendant who commits an uncalled-for assault on a citizen upon a public street of a Missouri town, and inflicts painful injuries on his head, neck and face with a pair of brass knucks.
   BURGESS, P. J.

At the October term, 1904, of the circuit court of Iron county the defendant was convicted of an assault with intent to kill one Prank P. Ake, and his punishment fixed at two years imprisonment in the penitentiary, under an information filed against him by the prosecuting attorney of said county. He appeals.

The facts are, substantially, that Ake was passing a livery stable in Ironton, on Ms way to tbe railroad depot in that town, when defendant, wbo was there, said to Ake that he could wMp him. After some words between the parties, Ake went on to the depot, and upon Ms return he again passed the livery stable, m front of which the parties again met, and after a few words passed between them of an unfriendly character, defendant assaulted Ake, striking him several times on the neck and face with a pair of brass knucks. When Ake left defendant and started on in the direction he had been traveling, defendant followed him some sixty or seventy yards, and again assaulted him, struck Mm several blows, knocking him down twice and inflicting upon Mm several bruises and painful injuries.

Defendant is not represented in this court, but in a motion in arrest filed in the court below the point is made that the information is insufficient in that it does not charge defendant with any crime known to the law. The second count of the information under which defendant was convicted is based upon section 1848, Revised Statutes 1899, and is in substantial compliance with that section. It is true that it unnecessarily uses the words “on purpose” and “a deadly weapon,” but these words may be treated as. mere surplusage (Kelley’s Criminal Law and Practice, sec. 579, p. 381; State v. Seward, 42 Mo. 206; State v. Chumley, 67 Mo. 41), and there will still remain a complete and sufficient description of an offense as designated in section 1848, supra.

The instructions seem to be free from substantial objections.

It is asserted in the motion for new trial that the court erred in permitting Dr. J. Marshall, a witness for the State, to testify over the objection of defendant that “knucks when applied to the head and body would be a deadly weapon,” and in permitting witnesses to testify that “defendant assaulted the prosecuting witness, Frank P. Ake, with, a revolver. ’ ’ There is no merit in either of these. Dr. Marshall was a practicing physician and surgeon of over fifteen years standing, saw and dressed the wounds of the prosecuting witness a few minutes after their infliction, and was clearly competent to testify to their nature, appearance and extent, which was permissible for the purpose of showing that the assault was made with intent to kill, and some instrument used which was adequate for the accomplishment of the purpose intended. So was the fact that defendant had upon his person a pistol at the time of the assault admissible as tending to show the character of the man and that he was prepared for any emergency which might arise on such an occasion.

A point is also made in the motion for a new trial with respect to the verdict, which i's claimed to be “excessive and cruel.” We are unable to concur in this view. The assault was wanton and malicious, in a marked degree, and the punishment imposed by the jury is fully justified by the facts and circumstances attending it, and should not be disturbed.

Finding m> reversible error in the record, the judgment is affirmed.

All concur.


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    THE STATE v. SCOTT, Appellant.
    Division Two,
    November 20, 1906.
    NO BILL OF EXCEPTIONS. Where no bill of exceptions is filed, there is nothing before the appellate court but the record proper, and if that is free from error, the judgment will be affirmed.
    Appeal from Maries Circuit Court. — Hon. Wm. H. Martin, Judge.
    Affirmed.

      Herbert 8. Hadley, Attorney-General, and Frank Blake, Assistant Attorney-General, for the State.
   FOX, J.

This cause is here upon appeal by the defendant from the circuit court pf Maries county. The prosecuting attorney on the 16th day of August, 1905, filed in the circuit court of said county an information charging the defendant with murder of the first degree. The person charged in the information to have been killed was one S. R. Copeland. The defendant answering to said information waived formal arraignment and entered his plea of not guilty; he was placed upon trial and convicted of murder in the second degree and his punishment assessed at imprisonment in the penitentiary for a term of ninety-nine years. Motions for new trial and in arrest of judgment were duly filed and hy the court overruled. Sentence and judgment were entered in accordance with the verdict and an appeal was granted to this court, leave being given by the lower court to file bill of exceptions on or before February 1, 1906. No bill of exceptions was filed, and there is nothing before us except the record proper.

The proceedings as disclosed by the record proper seem to be in all things regular. The information sufficiently charges the offense and is in form of precedents which have met the approval of this court. The jury were duly empaneled and sworn to try the case and returned their verdict finding the defendant guilty as heretofore indicated. The verdict of the jury and the judgment following it are in approved form. Finding no error, the judgment of 'the trial court should-be affirmed, and it is so ordered.

All concur.


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    THE STATE v. PENLAND, Appellant.
    Division Two,
    November 20, 1906.
    OVERRULING MOTION FOR NEW TRIAL: No Exception. Where no exceptions were saved to the overruling of the motion for new trial, there is nothing before the appellate court but the record proper, and if that is free from error, the judgment will be affirmed.
    Appeal from Henry Circuit Court. — Hoot. Chas. A. Denton, Judge.
    Appikmed-.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
   GANTT, J.

At the January term, 1905, of the Henry County Circuit Court, the prosecuting attorney of Henry county filed an information in open court, based upon an affidavit of J. H. Bailey and duly verified, wherein he charged that the defendant, on or about the 3rd of December, 1904, willfully and feloniously and with a deadly weapon, likely to produce death, to-wit, a large revolving pistol, which he then and there held in his hand, made an assault in and upon one J. H. Bailey and with the revolving pistol aforesaid did strike and beat the said Bailey in and upon the head and face of him the said Bailey, whereby the said Bailey was then and there maimed, wounded and disfigured and received great bodily harm and his life endangered, against the peace and dignity of the State-.

■ The defendant was arrested and entered his plea of not guilty. At the June term, 1905, the defendant was put upon his trial before a jury and was convicted of the offense charged in the information.

In due time lie filed Ms motions for a new trial and in arrest of judgment which were heard and overruled, and he was sentenced in accordance with the verdict of the jury. Prom that sentence he appealed to this court. The evidence tends to establish the following facts:

The State’s evidence tended to prove that the prosecuting witness, Bailey, lived in the city of Clinton in a house on a lot adjoining one Mrs. Murrell; and that he married Mrs. Murrell’s oldest daughter. On the day of the alleged assault Mrs. Murrell was away from home, and her two daughters, aged eleven and thirteen, and her two little boys, aged two and four, were at her home alone. A little after six o ’clock in the afternoon Bailey discovered defendant raising a disturbance in the house of Mrs. Murrell, and another man looking in at the windows, and heard the Murrell girls calling for help. As it was then dark, and knowing that the four children were alone in the house, Bailey called to the defendant and his companion, who was a man named Powell, to leave there and let those children alone. Defendant and Powell did leave and started away together; but defendant turned around, left Powell, and ran up on Bailey and committed the assault here charged, by using a pistol. Defendant struck Bailey on the head and face, breaking his jaw bone and seriously bruising his head. After he had knocked Bailey to the ground defendant kicked and stamped him, breaking two of Bailey’s ribs.

Defendant offered to prove that Mrs. Murrell kept a house of ill-fame, and that he had frequently been a visitor there; and that Bailey and Mrs. Murrell’s girls knew that defendant had often been invited to go there, and also evidence tending to prove that Mrs. Murrell’s girls did not enjoy a good reputation for virtue and chastity, which evidence the court on objection by the State excluded.

The defendant has filed no brief in this court, but as in duty bound we have read the whole reeord. There is nothing before us for review but the record proper. The bill of exceptions shows that no exceptions were taken or saved to the overruling of the motion for new trial, so that under repeated ruiings of this court the matters of exception such as the- alleged incompetency of certain jurors,' the alleged errors in admitting and excluding evidence and the sufficiency of the instructions cannot be reviewed by this court. [State v. Irwin, 171 Mo. 558; State v. Harvey, 105 Mo. 316.]

The information is sufficient and in the often-approved form. We discover no error in the impaneling of the jury or the verdict or sentence of the court, and accordingly the judgment and sentence of the circuit court must be and is affirmed.

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


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    THE STATE v. CAVIN, Appellant.
    Division Two,
    November 20, 1906.
    1. CRIMINAL LAW: Evidence: Shooting at One Person, Killing Another. Where one person shoots at another with the' felonious intent to kill and murder him, and the hall strikes and kills a third party, the law transfers the felonious intent to the latter; and, therefore, the admission of evidence which tends to show that defendant shot and killed a different person from the one the information charged him with killing, did not constitute error.
    2. -: -: Res Gestae. All that occurred at the time of the shooting with respect thereto was part of the res gestae, and was admissible in evidence upon that ground.
    3. -: -: Sufficiency: Murder. The evidence in this case is held sufficient to show murder in the first degree, and, consequently, sufficient to justify the jury in finding defendant guilty of murder in the second degree.
    Appeal from St. Francois Circuit Court. — He». Bobt. A. Anthony, Judge.

      Affirmed.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The State’s evidence was properly admitted, even though some of it tended to prove that defendant shot and killed a man different from the one that he was charged with killing. Every thing that was done and said by defendant, and by the others, at the time of the homicide, constituted a part of the res gestae. All of defendant’s actions at the time of, and just prior to the shooting of Samuel Gann, were admissible, even though it tended to prove that defendant had committed another crime. State v. Smith, 125 Mo. 2; State v. Taylor, 118 Mo. 53; State v. Sanders, 76 Mo. 35. (2) The evidence was sufficient to have justified the jury in convicting the defendant even of the highest grade of homicide.
   BURGESS, P. J.

By this appeal the reversal of a verdict and judgment of the circuit court of St. Francois county, convicting the defendant of murder in the second degree and fixing his punishment at ninety-nine years in the penitentiary for having shot to death.with a pistol at said county on the fourth day of July, 1904, one Samuel Gann, is sought.

In due time after verdict defendant filed motions for á new trial and in arrest, which were overruled. He appeals.

At a picnic at Knob Lick in said county on the 4th day of July, 1904, late in the evening there was dancing, a platform about sixteen by twenty feet having, been constructed for that purpose. Between eight and nine o’clock, Ed Gann, a brother of the deceased, was dancing upon this platform and got into a controversy with-one Bert Williams. The platform was poorly lighted. Ed Gann and Williams wanted to dance with the same lady. Ed Gann accused Williams of talking about him. Williams, denied the charge; a quarrel then resulted between them during which Ed Gann struck Williams and knocked him off the platform. About this time one William Smith appeared upon the scene, and used loud and profane language towards Ed Gann. During this time the defendant had been standing by the side of the platform, looking at the dancing. He was heard to say, “Here boys; that will not do.” At the time of using this language defendant was on the platform walking in the direction of Ed Gann. Just before he started towards Gann he drew his pistol and carried it in his hand. He fired one shot at Ed Gann, who then turned and walked away across the platform, and fell mortally wounded. Defendant then immediately turned his pistol upon Sam Gann, who was standing a few steps away, and fired four shots at him, from the effects of which Gann fell to the floor and died instantly. About this time George Gann, another brother, came up, and defendant leveled his pistol at him, saying that he would kill the whole family if he had any more cartridges. A post-mortem examination disclosed that two bullets had taken effect in the body of Sam Gann; one in the neck and the other four inches below the right nipple. The physicians testified that both wounds were made by bullets from a thirty-eight-calibre pistol, and that both wounds were fatal. Sam Gann had no weapons nor was he making any demonstration towards the defendant at the time.he was shot. Miss Della Wells, who was dancing on the platform at the time of the shooting, was wounded in the foot; and another bullet pierced the platform. After the trouble was over defendant asked some one to telephone to- the sheriff that he desired to surrender himself.

The defendant’s evidence tended to prove that Bert Williams was standing on the dancing platform just prior to the shooting, talking to Miss Mattie Wompler about dancing the next set. That Ed Gann said, ‘ ‘ What are you talking about me for ? ” To which' Williams replied that he was not talking about him; and, in a little while, some one knocked Williams backward off of the platform. That the defendant was standing by the side of his wife, near the platform, and, on seeing the disturbance, stepped up and said, “Boys, don’t have any trouble; it will break up the picnic.” That Ed Gann struck defendant on the neck with a pair of brass knucks, knocking defendant down on the platform, and off of the edge to the ground. That almost instantly Ed Gann fired twice at defendant, but missed him, although they were only a few feet apart. The defendant got up off of his hands and knees and shot three times at Ed Gann; but that he did not shoot at Sam Gann, and did not see him. The defendant, his wife and another witness, testified that they heard six shots fired that night, but they did not know who fired the sixth shot. His evidence further tended to show that there was an interval after the two first shots were fired; and that the remaining four were fired in rapid succession. A pair of brass knucks, a small pocket knife and some smoking tobacco were taken off of the body of Ed Gann the next morning. No weapons were found on the body of Sam Gann. Defendant’s evidence further tended to show that Ed Gann’s general reputation was bad, and that defendant enjoyed a good reputation as a peaceable and orderly citizen. There was also evidence that defendant acted as marshal or special officer at the picnic, having been sworn in by a notary public. There was no proof that he had been elected or appointed by any person or persons having authority. Defendant’s pistol, with which he claimed to have done the shooting, was offered1 in evidence at the trial. It contained two loaded cartridges and three empty shells, and was said to have been in the same condition as defendant left it the night after the homicide.

In rebuttal, the State proved that the town of Knob Lick bad been disincorporated prior to tbe homicide by an order of tbe connty court; and also proved ■ that tbe defendant bad been convicted of an assault with intent to kill, and sentenced to two years in tbe penitentiary, from Mississippi county.

Tbe court instructed for murder in tbe first and second degrees, self-defense, want of motive and good character of defendant.

Defendant is not represented in this court. Various grounds of error are assigned in tbe motions for new trial and in arrest, all of which are practically without merit.

Tbe information is well enough, contains all necessary averments, and is properly verified.

There was no reversible error in admitting evidence upon tbe part of tbe State, although some of it tended to show that defendant shot and killed a different person from tbe one tbe information charges him with killing. If be shot at Ed Gann with tbe felonious intent to kill and murder him and tbe ball bit and killed Samuel Gann, the law transfers tbe felonious intent to tbe latter, and be was just as much guilty of murder under such circumstances as if be bad shot directly at Samuel Gann with tbe felonious intent to kill and murder him. [State v. Gilmore, 95 Mo. 554; State v. Clark, 147 Mo. 20.]

Moreover, all that occurred at tbe time of tbe shooting with respect thereto was part of tbe res gestae, and properly admitted upon that ground. [State v. Woodward, 191 Mo. 617.]

While no objection was made to tbe instructions at tbe time and could not be raised for tbe first time in tbe motion for new trial, and therefore not before us for review, they were exceedingly fair to tbe defend- • ant, and upon tbe subject of self-defense unwarranted by tbe evidence — but as this is an error in favor of defendant be is not in position to complain of it.

Tbe evidence was sufficient to have justified tbe jury in finding.the defendant guilty of murder in the first degree, as it shows that the shooting was done wilfully and deliberately, without the slightest provocation or excuse.

The judgment should be affirmed. It is so ordered.

All concur.


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    THE STATE v. HERRON, Appellant.
    Division Two,
    November 20, 1906.
    NO BILL OF EXCEPTIONS: Record Proper. Motions for new trial and in arrest, and the instructions, have no place in the record proper, and in the absence of a bill of exceptions preserving the action of the court upon such matters, they cannot be considered in the appellate court. And where there is no bill of exceptions, and the record proper is free from error, the judgment will be affirmed.
    Appeal from Lawrence Circuit Court. — How. Hugh Dabbs, Judge.
    Affirmed.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) Leave was granted defendant to file his bill of exceptions, but no bill was filed. The clerk of that court has copied into the record proper what purports to be the motion for a new trial, the motion in arrest of judgment and the instructions given. .But, in the absence of a bill of exceptions, said matters cannot be considered, as they have no place in the record proper. State v. Harvey, 105 Mo. 316; State v. Irwin, 171 Mo. 558; State v. Sheham, 25 Mo. 465. (2) Where there is no bill of exceptions and no error appearing in the record proper, the judgment will be affirmed. State v. Wright, 186 Mo-. 121; State v. Carnell, 186 Mo. 188.'
   FOX, J.

This cause comes here upon appeal by the defendant from a judgment of conviction in the circuit court of Lawrence county for robbery in the first degree. On the 3rd day of January, 1905, the prosecuting attorney of Lawrence county filed an information, duly verified, charging the defendant and Otis Herron, Fred Herron and Thomas Finn with robbery in the first degree. On his application the defendant was granted a severance, and on his application defendant was granted a change of venue on account of the prejudice of the regular judge of that court, Hon. F. C. Johnston. Hon. James T. Neville, judge of the Eighteenth circuit, was called in, but failed and declined to come. By agreement of both sides, Hon. Hugh Dabbs, judge of the Twenty-fifth circuit, was called in and .presided at the trial. At the November term, 1905, the defendant was convicted and his punishment assessed at ten years in the penitentiary. After filing unsuccessful motions for a new trial and in arrest of judgment, defendant appealed. At his request, the court granted the defendant leave to file his bill of exceptions till during the next term of court, but no bill was filed; hence, this appeal presents only the record proper for consideration.

While in the transcript before us we find that the clerk of the court, in certifying the cause to this court, has copied in the record proper what purports to be the motions for new trial and in arrest of judgment, as well as the instructions given by the court, yet, in the absence of a bill of exceptions preserving the action of the court upon such matters they cannot be considered and have no place in the record proper. The information disclosed by the record, filed by the prosecuting attorney of Lawrence county, was duly verified, and sufficiently charges the offense of which the defendant was convicted. Upon being formally arraigned the defendant entered his plea of not guilty and was put upon his trial, and was convicted and his punishment assessed as herein indicated. The trial of the defendant, so far as the record proper discloses, seems to have been in every way regular. The jury were duly impaneled and sworn to try the case and their verdict and the judgment of the court in conformity to it is in approved form. Finding no error, the judgment in this cause should he affirmed, and it is so ordered.

All concur.


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    THE STATE v. WRIGHT, Appellant.
    Division Two,
    November 20, 1906.
    LARCENY: Recent Possession: Good Character: Instruction. In a prosecution for larceny, the evidence of defendant’s good character should be submitted to the jury in connection with the evidence of recent possession; a general instruction which simply gives the defendant the benefit of good character as in ordinary cases is not sufficient.
    Appeal from Christian Circuit Court. — Hon. John T. Moore, Judge.
    Reversed and remanded.

      G. A. Watson, Geo. W. Thornsberry and J. O. West for appellant.
    Instruction 3, on the presumption arising from recent possession of the stolen property, is too narrow and restrictive, in view of testimony of good character. State v. Bruin, 34 Mo. 541; State v. Kelley, 73 Mo. 608; State v. Sidney, 74 Mo. 390; State v. Crank, 75 Mo. 406; State v. North, 95 Mo. 615; State v. Walker, 194 Mo. 253.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    The State’s instructions were fair and full, and defendant has no grounds for complaint. They defined the crime of larceny, defined reasonable doubt, told the jury how to weigh the testimony of the defendant and the different witnesses, told the jury that the information was a formal charge, and also explained the value of such circumstances as the flight of the defendant, and the recent possession of stolen property. As this court has often said, “Instructions must be read and considered together.” State v. Walker, 92 S. W. 662; State v. Riney, 137 Mo. 105.
   BURGESS, P. J.

From a conviction of grand larceny in the circuit court of Christian county and the fixing of his punishment at two years imprisonment in the penitentiary, under an information filed by the prosecuting attorney of said county charging him with stealing certain hogs of the value of fifty dollars, the property of one Ray A. Blunt, defendant appeals.

At the time of the alleged larceny one Ray A. Blunt was the owner of nine hogs, namely, four barrows, marked with a crop in the right ear and an under half crop in the left; one black sow; one black gilt; two sows, black and white spotted; and one black barrow with white spots. The hogs were kept on Blunt’s farm in Christian county, near Highlandville, and were missed on May 31,1903. While they ran out in the public road, they came up every night to get their feed. The value of the hogs was variously stated at from thirty-five to fifty dollars. About June 1, 1903, defendant traded nine hogs to one Dick Campbell for two hogs; some of the nine were some of the hogs alleged to have been stolen. On June 26, 1903, défendant sold to Collins Brothers twelve hogs, some' of which were identified as some of the hogs alleged to have been stolen. Collins Brothers were dealers and shippers of live stock; and Dick Campbell lived on a farm near where defendant lived. When Campbell went with defendant to look at these hogs, they were in a field about a quarter of a mile from defendant’s house. When Blunt heard that hogs had been purchased by Campbell and by Col-' lins Brothers, he went to see them, described and afterward identified the hogs as belonging to him. Blunt then instituted replevin suits and succeeded in getting these hogs; and defendant paid Mr. Collins and Mr. Campbell the value of the hogs and the costs of said suits. About the last of May, one Marion Ellingsworth saw defendant driving several hogs, which answered the description of those stolen, along the road going in the direction of defendant’s home and from the direction of Blunt’s home. That he had talked to defendant several times about this circumstance, but that defendant would not say much; that he seemed to be uneasy. Several witnesses testified that the hogs which Blunt replevied from Campbell and from Collins Brothers were Blunt’s hogs. A witness named Phipps testified that, about a month before the alleged larceny, defendant and he were walking across George Cox’s field and that thew saw Blunt’s hogs in said field at that time. That defendant then said that these hogs were always in somebody’s field, and that somebody ought to run them off, or somebody could kill them and it would never be known. The sheriff and constable testified that, shortly after the replevin suits, a warrant was issued for the arrest of defendant, and that they made a number of efforts to find him; that they went several times to his home and to a number of other places; stayed out all night and could not find him for about eight or ten days.

On behalf of defendant, the evidence tended to prove that he had, prior to this trouble, a good reputation for honesty. Defendant, in testifying in his own behalf, admitted having possession of these hogs, but claimed to have purchased five of them from a man named Hull. He said that he met Hull on the road between Ozark and Highlandville; that Hull was a stranger to him; that Hull was driving these hogs along the road; and that he purchased them for $22.50, borrowing seven dollars and a half of the money from one Lincoln Hatton, who passed them. That these were some of the hogs that defendant sold to Collins Brothers about one month later. Defendant testified that he lived twelve miles from Ozark, and that he drove some hogs to that town and sold them to Collins Brothers at the stockyards. He testified that he bought a black sow and three pigs from his stepfather; and that they were the hogs that he traded to Dick Campbell, which were afterwards replevied by Blunt. Defendant claimed that he had fifteen hogs; that they got out of his pasture and wandered off a quarter of a mile towards Blunt’s place; that he went after them and drove them to his home. That, in driving them home, he passed by the witness Marion Ellingsworth. Defendant denied running from the officers, and denied all knowledge of there being a warrant for his arrest. He finally admitted that he did know that there was a warrant out for him, and said that he went down to Bull creek looking for this man Hull; that Hull said he lived on Bull creek. Lincoln Hatton testified to meeting defendant and some other man on the public road, and that defendant borrowed $7.50 from him; that he noticed five or six hogs lying down in the fence comer, but paid little attention to them. That the man that defendant was talking to was a stranger, and he heard nothing said about the man’s living on Bull creek. This witness was related to defendant by marriage. Defendant’s stepfather testified that he sold the sow and three pigs to defendant.

In rebuttal, the State proved that Miles Sterry, the stepfather and a witness for defendant, testified at the trial of the replevin suit that he had loaned the defendant the money to pay for these hogs. Mr. 'Hull did not testify. ,

The only points relied upon on this appeal for a reversal of the judgment are the giving of instructions numbered three and five on the part of the State, and in refusing the only instructions asked by defendant. They are as follows :

3. ‘‘The court instructs the jury that if they believe from the evidence that about the time mentioned in the information some one did unlawfully and feloniously steal said hogs mentioned in the information and that recently thereafter the same property was found in the possession of the defendant, then the law presumes that the defendant is guilty and if he fails to account for his possession of said property in a manner consistent with his innocence this presumption becomes conclusive against him. ’
5. ‘ ‘ The court instructs the jury that in determining as to the guilt or innocence of the defendant you should take into account the testimony in relation to his character and should give to such testimony such weight as you deem proper, but if from all the evidence you are satisfied beyond a reasonable doubt, as defined in these instructions, that the defendant is guilty, then his previous good character, if shown, cannot acquit, justify, excuse, palliate or .mitigate the offense, and you cannot acquit him merely because you may believe he has been a person of good repute.”

The instruction asked by defendant and refused is as follows :

“The court instructs the jury that the recent possession of stolen property raises the presumption that the party found in possession recently after the same has been stolen is the party who stole the same, and such presumption becomes conclusive unless such presumption of recent possession is satisfactorily accounted for or explained to the reasonable satisfaction of the jury, or unless such recent possession has been rebutted by proof of good character of the defendant.”

It is insisted by counsel for defendant that in view of the good character shown by defendant, said instructions numbered three and five are too narrow and restrictive.

It will ‘be observed that the testimony with respect to the good character of the defendant was entirely ignored by this instruction.

An instruction in almost the exact language was condemned by-this court in State v. Crank, 75 Mo. 406, upon the ground that it was too narrow in that it did not submit to the jury the evidence of good character in connection with that of recent possession. The instruction as an abstract proposition of law is not so objectionable but in its application to the facts of the case under consideration was misleading in its character, and may have mislead the jury.

In State v. Gray, 37 Mo. 463, it is held that the presumption arising from the recent possession of stolen property is raised, but is subject to be rebutted by character, habits and all the circumstances.

In State v. Williams, 54 Mo. 170, it was said: i £ rppgxg -^rag xio error in the instruction which told the jury that the recent possession of stolen property is presumptive evidence of the guilt of the possessor. Such possession, unless explained, either by direct evidence, or attending circumstances, or the character and habits of the party with whom the property is found, or by some other mode equally satisfactory as to the innocence of the accused, will be taken as conclusive.” [State v. Walker, 194 Mo. 253; State v. Kelly, 73 Mo. 608; State v. Sidney, 74 Mo. 390; State v. North, 95 Mo. 615.]

The instruction should have submitted to the jury the evidence of good character in connection with that of recent possession. The question then is, was this instruction cured by the fifth ?

We think not. It simply gives the defendant the benefit of good character as in ordinary cases, wherein guilty possession is not involved, and therefore not as rebutting the presumption of guilt consequent upon such possession as in the case at bar.

The instruction asked by defendant presented correctly this feature of the case, and should have been given. For the errors intimated the judgment is reversed and the cause remanded.

All concur.


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    THE STATE v. KEARNEY, Appellant.
    Division Two,
    November 20, 1906.
    NO BILL OF EXCEPTIONS. Where there is no hill of exceptions, there is nothing for review except the record proper, and if, that is free from error, the judgment will he affirmed.
    Appeal from Buchanan Criminal Court. — How. A. D. Burnes, Special Judge.
    Affirmed.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
   FOX, J.

Defendant in this cause has appealed to this court from a judgment of conviction in the criminal court of Buchanan county finding him guilty of robbery in the first degree.

On December 8, 1904, the prosecuting attorney of Buchanan county 'filed an information, duly verified, charging the defendant and one James Troutman, and one David Masner, with robbery in the first degree. The date of the alleged offense was May 6, 1904, and the name of the prosecuting witness was stated to be Emmett F. Johnson. At the March term, 1905, defendant asked for and was granted a severance. Defendant then filed affidavits charging the regular judge with prejudice, and asking for a change of venue. His motion was granted and Hon. Alonzo D. Burnes was called in to try the case. Defendant’s trial resulted in his conviction and a sentence to the penitentiary for five years. After the filing of unsuccessful motions for a new trial and in arrest of judgment, défendant appealed. Although time was given him in which to file a hill of exceptions, defendant failed to do so, and there is nothing before us for review except the record proper.

The record proper before us for consideration discloses that the information, which was duly verified, properly charged the defendant with the offense of which he was convicted. The trial proceeded in regular order; the jury were duly empaneled and sworn to try the case, and the verdict and judgment appear to be in regular form, and there is nothing left to be done except announce our conclusion, which is that the judgment should be affirmed, and it so ordered.

All concur.