author: ROY, C. PER CURIAM.

text:
    THE STATE v. DON FORAN, Appellant.
    Division Two,
    February 17, 1914.
    1. EVIDENCE:"Objections: Cross-Examination: Murder. During his cross-examination, the accused, on trial far murder, was asked, over his counsel’s objection, if he had not had certain offers of work and refused them, and he answered, “No, sir, never.” Held, that the overruling of the objection did not harm the accused.
    2. MURDER: Instructions: Manslaughter. In a prosecution for murder an objection that the trial court erred in failing to instruct on manslaughter is made too late if made for the first time before the Supreme Court, but even though the attention of the trial court was not called to the matter the Supreme Court will examine the case to see whether the verdict might have been different if such an instruction had been given, and where the State’s evidence clearly shows a cold-blooded murder and the defendant’s testimony disclaims manslaughter and self-defense and claims that the killing was accidental, and where, too, the jury, after being instructed on murder in the first and second degrees, found defendant guilty of first degree murder, there was no place for an instruction on manslaughter.
    3. -: Evidence: Threats: No Offer of Proof. In a prosecution for murder a witness testified that deceased had threatened defendant’s life, but an objection was sustained as to what deceased said in making those threats, and no offer of proof was made. Held, that the point cannot be considered. When counsel desire the Supreme Court to consider the propriety of excluding evidence; they must show what the proposed evidence would have been.

      4. •-: First Degree: Instructions: “On Purpose.” An instruction for first degree murder which charges that the defendant acted “wilfully, premeditatedly and of malice aforethought,” is not erroneous for that it omits the words “on purpose.”
    5. -: -: -------- ■: Threats. The Supreme Court approves an instruction on threats, given in this prosecution for murder, which reads, in substance: “Although you may believe from the evidence that prior to the time she was shot the deceased had made threats against the defendant, yet this fact alone does not justify or excuse or palliate the offense of murder, provided the jury shall further believe from the evidence that at the time deceased was shot she made no threats against defendant and made no attack or assault upon defendant and made no demonstration of violence against defendant.”
    Appeal from Jackson Criminal Court. — Hon. Ralph 8. Latshaw, Judge.
    Affirmed.

      George Birmingham and Horace 8. Kimbrell for appellant.
    (1) Tire court erred in permitting State to cross-examine defendant concerning Ms refusal of positions offered. No such matter liad been referred to in defendant’s evidence, and tMs method of cross-examination, taken in connection with the prosecuting attorney’s opening statement and closing argument, to the effect that defendant was a wortMess fellow — an idler who lived off of the vices of a fallen woman, was prejudicial error. R. S. 1909, sec. 5242; State v. Grant, 144 Mo. 56; State v. Hatkorn, 166 Mo. 229; State v. Kyle, 177 Mo. 659; State v. Fullerton, 90 Mo. App. 411; State v. McGraw, 74 Mo. 573; State v. Porter, 75 Mo. 171; State v. Trott, 36 Mo. App. 29; State v. Rugan, 68 Mo. 214. (2) The court erred in excluding the evidence of witness Berkowitz as to threats made by deceased agaMst defendant. TMs was excluded on the ground that such threats were not commumcated to defendant. State v. Sovern, 225 Mo. 580; State v. Wright, 141 Mo. 333; State v. Cochran, 147 Mo. 504; State v. Smith, 164' Mo. 567; State v. Evans, 158 Mo. 589; State v. Spencer, 160 Mo. 118; State v. Hollingsworth, 156 Mo. 178. (3) The court erred in failing to instruct upon the law of manslaughter made essential by the account of the killing given by the defendant as a witness in his own behalf, the probability or improbability of his statement being solely a question for the jury. State v. Banks, 73 Mo. 592; State v. Palmer, 88 Mo. 566; State v. McKinzie, 102 Mo. 622; State v. Talmage, 107 Mo. 543; State v. Conway, 241 Mo. 271. (4) Instruction 3 is faulty. The information charges that appellant, on purpose, and of his malice aforethought, did make an assault, etc. The instruction omits the words “on purpose,” and in the light of the evidence of defendant about the assault of the deceased upon him and the conflict and struggle preceding and attending the homicide, the instruction was misleading. Furthermore, the words, “unless you shall find and believe from the evidence that such killing, if any, was done accidentally and thereby justified, as defined in instructions 12 and 13, when taken into consideration with the fact that “on purpose,” according to this instruction, was not an essential element of first degree murder, might under the facts as detailed by defendant as a witness in his own behalf have led to the verdict herein rendered, although the jury might have believed the killing was the result of reckless and criminally careless conduct of defendant while engaged in a bitter quarrel and violent scuffle with deceased. This instruction, it seems, also brings clearly to view the error of failing to instruct on manslaughter, third and fourth degrees. Furthermore, the instruction was a comment on the evidence offered by appellant in his own behalf and a harmful characterization of the defense he made. State v. Holmes, 17 Mo. 147; State v. Gates, 20 Mo. 400; State v. Grugin, 147 Mo. 56; State v. Higgerson, 157 Mo. 99. (5) The same objection urged to instruction 3 is applicable to No. 4. (6) Instruction 8 is vicious. It commented on the evidence, assumed that the defendant’s offense was murder, and denied the jury the right to take into consideration any evidence or theory except that of the State.

      John T. Barker, Attorney-General, and William M. Fitch, Assistant Attorney-General, for the State.
    (1) It does not appear in the record that defendant ever did an honest day’s work after meeting the deceased, but from that time on “lived a sporting life” and “gambled all over town.” The record shows that he demanded of the woman he killed that she go out upon the street and get money they needed or he would kill her. When on the stand he never denied the statements that he had driven this woman out into the street to earn money by prostitution, nor did he deny the threats to kill her. His failure to deny these criminating statements was an admission of their truth, as much so as if expressly admitted to be true. State v. Music, 101 Mo. 271; State v. Paxton, 126 Mo. 614; State v. Alexander, 119 Mo. 461; State v. Taylor, 134 Mo. 127; State v. Grubb, 201 Mo. 610. Again, it was immaterial to the issues in the case whether commission men on Walnut street had offered appellant positions which he refused to take. It was his privilege to lead a life of idleness, if he could so do honestly, and without objection he testified on cross-examination that he supported himself by gambling. He denied emphatically that he had been offered positions by these commission men, and no one was ever introduced to contradict him, and this inquiry could not possibly have influenced the jury, and under the ruling of this court in State v. Barrington, 198 Mo. 78, and cases cited, this point should be 'ruled against appellant. (2) The testimony of appellant clearly shows an accidental killing, and if true, negatives any reasonable inference of manslaughter in any degree. The State’s testimony viewed from every angle disclosed the perpetration of a cold-blooded murder. However that may be, the appellant failed to call the attention of the court to its failure to instruct on the law of manslaughter. The fourth ground of the motion is: “Because the court erred in refusing to instruct on all the law arising from the evidence.” The record is silent as to any request of the appellant for an instruction on manslaughter. It cannot be claimed that this fourth ground of the motion called the attention of the court to its failure to instruct on the law of manslaughter. The case at bar is not one where the verdict could have been different had such an instruction been given. The jury could not possibly have believed the defendant’s story in the face of all the other testimony showing an intentional killing. State v. Conway, 241 Mo. 1. c. 292. (3) Murder in the first degree has been defined by the Supreme Court of this State to be a killing done wilfully, deliberately, premeclitatedly and of malice aforethought, and it follows that instruction 4 is not faulty in that it omits the words “on purpose” used in the information. State v. Thompson, 78 Mo. 342; State v. Stephens, 96 Mo. 645; State v. Taylor, 143 Mo. 157; State v. McCarver, 194 Mo. 727. The pleader need not have used the words “on purpose” in the information. Their office was filled by the use of the word “wilfully.” The information would have sufficiently charged murder of the first degree had they been omitted. State v. Lang, 201 Mo. 667. It is not necessary that an instruction use the identical words of a criminal charge in an information. State v. Tobie, 141 Mo. 556. (4) 'What we have said concerning instruction 3 applies equally to instruction 4.
   ROY, C.

Defendant was convicted of murder in the first degree and sentenced in accordance with the verdict to imprisonment for life. He shot and killed his wife, Gertrude, in their room in the second story of a rooming house in Kansas City, about midnight, July 23,1912. A window in their room opened just above a roof from which a stairway led to the alley below. '

According to the testimony, he was about twenty-two years old at the time of the trial, and first met the deceased about two years before in a sporting house. She was then living with one Ed Griffith. - Defendant abandoned his home with his mother and sister and took up with Gertrude, and about a year later married her. He stated on the witness stand that he lived a sporting life and “gambled all over town.”

About eight o’clock the night of the shooting he procured a revolver. He testified that he got it at her request, as she was uneasy about staying alone at times, and that he delivered it to her.

Her father at times called and spent an evening with her. On the night of the killing defendant and his wife were in the room, the defendant going out and returning once or twice. About eleven-thirty, a person who had been in the room with them left, and she was heard to say, “Good night, daddy.” A few minutes later a shot was heard by the landlady and by a roomer and also by three men at the mouth of the alley. The landlady heard her say, “Oh, don’t,” followed by a scream, then four more shots were fired in rapid succession. Immediately afterward she was found dead with a bullet wound in each breast and one in the back of her neck. He was not seen to pass through the hall. The window was open. A pistol was on the outside stairway. He, emerging from the alley, encountered the three men who had heard the shots and the scream, and who also heard a noise on the roof, and' said to them that he had lulled two in the alley. He went to the room of Thomas H. Miller and told him that he had “shot Gertrude” and wanted some •carbolic acid, to kill himself. He was without hat, coat ■or shoes. When arrested a few moments later, he “showed fight.”

Four witnesses testified to various occasions when lie told his wife to go out on the streets and get the money, or he would kill her, or “kick her.”

Ben Portman testified that defendant and his wife quarreled about some money and that she “pulled out a gun and threatened to fix him if he didn’t give her the money.”

Ben Berkowitz testified that about a month before the murder the deceased made threats against the life of the defendant. Then the following occurred on the trial: “Q. Where was that and what was said? Mr. Curtin: We object to what was said. The testimony ■of the defendant here is to the effect that this was an accident; that he had nothing to do with the shooting, therefore the testimony of any threats is wholly immaterial. The Court: Did you tell the defendant of these threats? A. No, sir, I told a friend of his, a bartender. The Court: Did you tell the defendant? A. No, sir. The Court: He says he didn’t tell him. Mr. Kimbrell: The defendant said he had been told by this man. The Court: I will, sustain the objection. Mr. Kimbrell: Exception. That is all.”

The defendant’s testimony as to the killing was as follows:

“I had an application to go to work on the fire department and I asked her if she would wake me up in the morning so that I could have the doctor’s examination and be prepared to go on. I want to get on it right away. She didn’t seem to want for me to take it. She said she did not want me to take it at all, and there was a little argument came up about her talking to Ed Griffith.. I told her to never talk to him, because he wouldn’t do her any good, a fellow she lived with. She says it is very funny you would keep me from talking to everybody. You are going to work on this fire department and all this. Yon won’t go to work anywhere, because we are going to leave together, and she started to fire, and I jumped up and grabbed her, and she fired two shots at me, and we were wrestling with the gun. I don’t know how many shots went into her. The rest of them went into her through this-struggle. ’ ’

During the cross-examination the following occurred: “Q. Isn’t it a fact that the commission men on Walnut street offered you positions and you refused to taire them? Mr. Kimbrell: We object to that as improper, and not cross-examination of this defendant. The Court: Objection overruled. Mr. Kimbrell: Exception. Q. Didn’t commission men on Walnut street offer you positions and didn’t you refuse to take them? A. No, sir, never.” •

The court instructed on murder in the first and second degrees. Those instructions did not use the words 'on purpose, hut did use the words wilfully, premeditatedly and of malice aforethought.” The instructions on murder in the first degree included the word “deliberately.”

The eighth instruction was as follows:

“The court instructs the jury that although you may believe from the evidence that prior to the time she was shot the deceased had made threats against the defendant, yet this fact alone does not justify or excuse or palliate the offense of murder, provided the jury shall further believe from the evidence that at the time deceased was shot she made no threats against defendant and made no attack or assault upon defendant and made no demonstration of violence against defendant. ’ ’

There was an instruction on accidental shooting. There was no instruction asked or given on manslaughter or self-defense. The only point made in the motion for new trial on the failure of the court to instruct is as follows: - “Fourth. Because-the court erred, in refusirtg to instruct on all the law arising from the evidence.”

I. Overruling the objection to the question asked of defendant on cross-examination as to whether the commission men had offered him a posi^011 which he refused, did not harm the defendant. Such an offer, if made, was complimentary to him, so that the mere question did not prejudice him with the jury. The answer was, “No, sir, never,” and he was not contradicted on that point. We are unable to see how he was harmed by the incident.

II. Defendant is not in position to complain of the fact that no instruction on manslaughter was given. The trial court’s attention was not called to the subject of an instruction on manslaughter either on the trial or in the motion for a new trial. The objection made here for the first time comes too late. [State v. Conway, 241 Mo. 292.] The higher rule is recognized in that case that we are bound to see that no injustice is done even though the court’s attention was not called to the particular point in the motion for a new trial. We have examined the case to see whether the verdict might have been different if such an instruction had been given. We find that the State’s evidence clearly shows a eold-blo.oded murder. The defendant’s testimony disclaims manslaughter and self-defense and claims that the killing was accidental. Manslaughter is not consistent with the theory either of the State or of the defendant. What is more, the jury were instructed as to both first and second degree murder. They found him guilty of the higher offense. They evidently would not have considered the idea of manslaughter.

III.Ben Berkowitz testified that deceased had threatened the life of defendant. When asked what was said by her, an objection was sustained. There was no offer to show what the answer would ba.ve been. We can not act in the dark as to the merits of defendant’s rights to the answer. Whether the answer would have weakened or strengthened the evidence already given that she threatened his life, we cannot say. When counsel desire us to consider the propriety of excluding evidence, we must be shown what the proposed evidénce would have been. [State v. Page, 212 Mo. l. c. 238.]

IY. The failure to use the words “on purpose” in the instructions was not error. Those words are synonymous with “wilfully” which was used. The instructions, in that respect, are such as are ordinarily given. [State v. McCarver, 194 Mo. l. c. 727; State v. Stephens, 96 Mo. l. c. 645.]

Y. Instruction 8 on the subject of threats is .in substance the same as those approved in State v. Sovern, 225 Mo. 607; State v. Spencer, 160 Mo. l. c. 124 and State v. Rider, 95 Mo. 484.

The judgment is affirmed.

Williams, G., concurs.

PER CURIAM.

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

All the juda'es concur.


source: Caselaw Access Project

author: FARIS, J.

license: Public Domain

text:
    THE STATE v. FRANK MILLER, alias FRANK PULGER, Appellant.
    Division Two,
    February 17, 1914.
    1. VERDICT: Duplicity in Information: Proof of One Offense, Convicted of Another: Mortgaged Property. Ordinarily the defect of duplicity (of charging two separate and distinct offenses in one count of the information) is cured by verdict. But when the information charged the defendant with removing and concealing mortgaged chattels, and of selling and disposing of said chattels without consent of the mortgagee — two distinct offenses — and the proof made out a case of removing and concealing, and the instruction narrowed the issue accordingly, a verdict finding the defendant guilty of disposing of mortgaged chattels cannot stand — for it disregards both the evidence and instruction.
    2. -: Responsive to Issues: Part of Record. A verdict in a criminal case is a part of the record proper, as distinguished from matters of pure exception; and must be responsive to the charge in the information (unless it is a general verdict of guilty), to the evidence offered in the case, and to the issues presented by the instructions.
    3. INSTRUCTION: Removal of Mortgaged Property: Flight. Where flight is a coincidence of the offense of removing and concealing mortgaged chattels, and there is substantial evidence to establish it, an. instruction on flight may properly be given; but it should also include, as an issue to be determined by the jury, the explanation which defendant may be able to make, if any, in rebuttal of the presumption of guilt arising from flight.
    Appeal from St. Louis City Circuit Court. — Hon. Leo S. Bassieur, Judge.
    Reversed and remanded.

      A. T. Dumm for appellant.
    (1) The sole issue submitted to the jury was that of removing and concealing mortgaged property, the issue of disposing of mortgaged property having been eliminated from their consideration. Consequently,.the verdict — finding defendant guilty of disposing of chattels mortgaged — is not responsive to the issue, and cannot therefore sustain the judgment. 2 Bishop’s New Criminal Procedure (2 Ed.), sec. 1005; 8 Words and Phrases, pp. 7293-95; State v. Rowe, 142 Mo. 442; State v. Pierce, 136 Mo. 40; State v. Harmon, 106 Mo. 657; State v. Evans, 21 So. (La.), 546; State v. Modlin, 197 Mo. 379; State v. DeWitt, 186 Mo. 67; State v. Cronin, 189 Mo. 670; Dailey v. Columbia, 122 Mo. App. 21; State v. Pollock, 105 Mo. App. 273; State v. Cornwall, 88 Mo.-App. 190; Ex parte Harris, 128 Pac. 156; Vickers v. United States, 1 Old. Cr. 458; In re McVey, 50 Neb. 481; State v. Grossman, 214 Mo. 241; Thresher Co. v. Speak, 167 Mo. App. 470; State v. McCune, 209 Mo. 399; State v. Logan, 209 Mo. 401. (2) There is no evidence in the record that defendant fled to avoid arrest, and the trial court committed reversible error in giving to the jury an instruction on flight. State v. Tice, 90 Mo. 112; State v. Herrell, 97 Mo. Ill; State v. Bonner, 178 Mo. 432; State v. St. John, 94 Mo. App. 234; State v. Bailey, 57 Mo. 131; State v. Harris, 232 Mo. 317; State v. Fairlamb, 121 Mo. 147.

      John T. Barher, Attorney-General, and Thomas J. Higgs, Assistant Attorney-G-eneral, for the State.
    (1) The information follows the statute and is sufficient in form. Sec. 4570, R. S. 1909; Kelley’s Crim. Law & Procedure (3 Ed.), sec. 714. (2) .The verdict finds the defendant guilty “of disposing” of chattels mortgaged as charged in the information. The verdict is responsive to the information, which charges that the defendant did “dispose of” the mortgaged chattels. The statute uses the words “disposed of.” Sec. 4570, R. S. 1909. (3) The court properly held that the State, before trial, was not bound to elect whether the defendant was to be tried for ‘ ‘ concealing mortgaged property” or for “disposing of mortgaged property.” The alleged charges, if there were more than one charge, were in one count and under the same statute. The State did not have to elect before trial when the charges were distinct and under separate statutes and in separate counts in the information. State v. Duvennick, 237 Mo. 192; State v. Carragin, 210 Mo. 351; State v. Sharpless, 212 Mo. 203; State v. Schmidt, 137 Mo. 266; State v. Houx, 109 Mo. 654.
   FARIS, J.

Defendant, convicted' in the circuit court of the city of St. Louis for a violation of section 4570, Revised Statutes 1909, for that, as it was charged, he had removed and concealed certain mortgaged chattels, and his punishment having been by a jury assessed at imprisonment in the penitentiary for a term of two years, has, after the usual motions for a new trial and in arrest, appealed.

Since in our view the disposition of the case here will turn upon questions of law applied to the record in the case rather than to the substantive facts shown in evidence and going to make up the evidentiary elements of the crime charged, we may content ourselves with saying that defendant about the month of April, 1912, while residing at 1105 Calhoun street in the city of St. Louis, with a woman whom he represented to be his wife and a son of the latter, went to the place of business of the prosecuting witness, one Harry Rossen, at the time engaged in selling furniture in said city, and under the name of Frank Miller purchased from Rossen the personal property and chattels which form the subject-matter of this action, agreeing to pay Rossen therefor the sum of $238 by instalments, payable weekly. The goods were delivered at the Calhoun street address on April 15, 1912, and a promissory note executed for the purchase price, the said sum of $238. This note was to be paid in instalments of $7.50 weekly, and was secured by a chattel mortgage on the furniture purchased. Both note and mortgage were signed by defendant in the name of Frank Miller, and by the woman who was living with him, in the name of Teresa Miller.

Shortly after the delivery of the goods to the defendant he disappeared and was, some two months thereafter, found living upon a farm near Iola, Wisconsin, in an old house, which had formerly been a barn, and with defendant in said house was found the mortgaged furniture purchased from Rossen. It was in evidence from divers witnesses that defendant, very shortly after the making by him of the chattel mortgage to Rossen, procured the hauling of the furniture to the Union Station, there loaded it into a car and shipped it away, inferentially of course, to Iola, Wisconsin, where it was next found in the possession of defendant, who was there living with a woman and her son, as he had theretofore lived on Calhoun street in the city of St. Louis.

Defendant denied that he had ever purchased any furniture from the prosecuting witness Rossen, or that he knew Rossen, or that he had procured the hauling by the drayman who identified him as the one who employed the drayman to haul the furniture and place it in the car. lie denied that he had ever been known by the name of Frank Miller, or that he had represented himself to Rossen or to anyone else as being Frank Miller, but averred that his name was Frank Pulger, and that he had always been known by that name. He admitted, however, that he had had some connection with placing the furniture in the car, but that he.had acted for one Fred Bond in that behalf. He swore that said Bond had had the furniture brought into the Calhoun street house; that he and Bond were both going to Wisconsin to work on a beet farm, and while admitting that he was in possession of the furniture in Wisconsin, he averred that he was merely awaiting the coming there of said Bond, for whom he was holding the furniture and for whom he was in possession thereof.

The information upon which defendant was tried, omitting caption and signature and all formal parts, and setting out but the charging part thereof, which alone is pertinent here, is as follows:

“That on the sixteenth day of April, 1912, in the said city of St. Louis, and while said chattel mortgage was still in force and effect, the said Frank Miller, alias Frank Pulzer, alias Frank Pulger, mortgagor and grantor in said above described chattel mortgage, did feloniously, wilfully and unlawfully remove and conceal, and aid and assist in removing and concealing the above described personal property and chattels, so described and mentioned in said chattel mortgage, with the intent to hinder, delay and defraud the said Harry Rossen, mortgagee as aforesaid, and did feloniously, wilfully and unlawfully sell, convey and dispose of the above described chattels and personal property, so described and mentioned in said chattel mortgage, without the written consent of the said Harry Rossen, mortgagee and beneficiary in said chattel mortgage, and without informing the person to whom the said chattels and personal property then and there were sold and conveyed, that the said chattels and personal property were mortgaged as aforesaid; said above described chattels and personal property so mentioned in said chattel mortgage being then and there of the value of two hundred and thirty-eight dollars, against the peace and dignity of the State.”

The record in this case is in all respects formal and correctly shows all necessary entries which are of importance upon the issues before us. The verdict, however, is attacked both in the motion for a new trial and in the motion in arrest of judgment. This verdict, caption and signature omitted, is as follows:

“We, the jury in the above entitled cause, find the defendant guilty of disposing of chattels mortgaged, as charged in. the information, and assess the punishment at imprisonment in the pentitentiary for two years.”

Among other things set up in the motion for a new trial it is averred that “the verdict of the jury is contrary to the law, contrary to the evidence and against the weight of the evidence. ’ ’ Likewise in the motion in arrest of judgment it is urged that no judgment should be rendered or any sentence pronounced on the verdict of the jury “because the verdict of the jury is insufficient to sustain a judgment of conviction in such cause.”

Upon the trial of the case and before the offering of any testimony in the case, counsel for defendant orally moved the court “to require the State to elect-on which count the State would go to the jury.” The court refused to require the State to elect at that time, stating in reply to defendant’s objection that if the testimony should afterward show that an election on the part of the State was proper, the matter could be controlled by the court by an instruction: An exception was saved to the action of the court in refusing to require an election, but there the matter was dropped and has not been preserved by any reference thereto in the motion for a new trial.

. The exact issue submitted to the trial jury by the court is clearly shown by the following excerpt from the instructions given by the court:

“And if you further find and believe from the evidence that on or about the sixteenth day of April, 1912, in said city and State, and while said chattel mortgage was still in force and effect, said defendant, being the mortgagor and grantor in said mortgage, did feloniously, wilfully and unlawfully remove and conceal, and did aid and assist in removing and concealing the .above described personal property and chattels, or any part thereof, with the intent to hinder, delay and defraud the said Harry Rossen, being the, mortgagee in said mortgage, without the written consent of said Harry Rossen; and if you further find and believe from the evidence that said property so removed and concealed, or any part thereof (if you find and believe from the evidence that said property was so removed and concealed), was of the value of fifty dollars or more, you will find the defendant guilty as charged; and if you do not find the facts to be as stated herein, you will find the defendant not guilty.”

Since the sufficiency of the verdict upon the facts, upon the charge in the information and upon the issues made by the instructions, is the point most strenuously urged, the above statement will, in our view, be sufficient to make clear all points upon which the case will turn.

OPINION.

I. Defendant contends that the verdict of the jury is neither responsive to the issues made by the testi^ony, nor in accord with, but per contra in conflict with, the case submitted to the trial jury by the instruction of the court.

That and more is the trouble with this case. Section 4570, under which the charge in the case is brought, contains three separate and distinct offenses — which are either felonies or misdemeanors according as the amount or value, of the property dealt with shall be found to be greater or less than fifty dollars. These three offenses consist: (a) of selling, conveying or disposing of mortgaged chattels; (b) of injuring or destroying or aiding and abetting in injuring or destroying such chattels, and (c) of removing or concealing, or aiding in the removing or concealing of the same, with certain conditions precedent and intent, more at length in the statute set out, but not necessary to be adverted to for our present purpose.

These three offenses are each defined by groups of words, which as to all other words in each group, are subject to the rule of ejusdem generis. But this rule does not apply interchangeably, as among the groups themselves. If it did, then clearly the whole section would denounce but one offense. So, since the words “dispose of,” do not in diction ordinarily, if ever, mean “to remove, or conceal,” or “to injure, or destroy,” they do not have any such meaning as they are used in this section, but they refer only to a disposing of a chattel effected by a sale or conveyance.

It is fairly plain that two separate and distinct offenses are charged in the same count of the information. Ordinarily this defect of duplicity is cured by verdict. [State v. Nieuhaus, 217 Mo. 332.] But here the proof makes out the case (c), that of removing and concealing the mortgaged property, and upon the case so made by the proof the learned judge nisi instructed the jury. Notwithstanding this instruction and the facts in evidence the jury found defendant guilty of (a) disposing of chattels mortgaged; thus wholly disregarding the evidence in the case and the instructions of the court. It would have been no greater legal solecism to have charged defendant with larceny and to have convicted him of rape. So, while we note with sympathy the uplift toward absolute simplicity of procedure and. the trend toward panicky abjuration of all form, formality and technicality, which ought soon to bring us again to that primitive justice whose machinery and needs are but the dark of the moon, a convenient oak tree and a stout hemp rope, we are yet mindful of our sworn duty to follow the law and to observe the Constitution; at least until such time as the Legislature shall repeal all law and the people shall abolish the Constitution, and being so curbed and hampered, we are constrained to hold that this conviction cannot stand.

The verdict was attacked, as we have seen, both in the motion for a new trial and in the motion in arrest. The verdict in a criminal case is a part of the record proper, as distinguished from matters of pure exception, which are made parts of the record in the case by a proper bill of exceptions. [Bateson v. Clark, 37 Mo. 31; State v. Rowe, 142 Mo. l. c. 440.] The verdict here was neither responsive to the instructions of the court nor to the proof adduced to make out the case. It must be responsive (a) to the charge in the information (unless it is a general verdict of guilty); (b) to the evidence offered in the case, and (c) to the issues presented by the instructions of the court. [State v. Modlin, 197 Mo. 376; State v. Cronin, 189 Mo. 663; State v. DeWitt, 186 Mo. 61; State v. Rowe, 142 Mo. 439; State v. Pierce, 136 Mo. 34; State v. Harmon, 106 Mo. 635; State v. Grossman, 214 Mo. 233; 2 Bishop, Crim. Proc. (2 Ed.), sec. 1005.]

II. Other objections are urged upon us-, e. g., that the State should have been required to elect upon which charge it would go to the jury, and that the instruction on flight should not have been giye11- Since, for the reasons we have already stated, this case must be reversed and remanded, and since it is probable that the State may be advised to file an amended information, we see no crying need for our taking the space to pass upon these matters in extenso.

In passing the subject of the instruction on flight, we may say that inasmuch as the inference to be drawn from the acts of the defendant in committing the. offense charged, as these acts are disclosed by the evidence, is just as consistent with the State’s theory of flight as with the theory advanced by the defendant, an instruction on flight was proper. In short, if he was guilty of removing and concealing the mortgaged chattels, the methods he used in removing them and accompanying them to the State of Wisconsin smacked as well of flight as of the necessary legal elements required to be proved in the case. This is a coincidence in the ease, working it may be, ..a hardship upon defendant, bnt wbicb nevertheless warrants a proper instruction upon tbe question of flight, which instruction should appropriately include, as an issue to be determined by the jury, the explanation which defendant may make, if any, in rebuttal of the presumption of guilt arising from flight. [State v. Harris, 232 Mo. l. c. 323; State v. King, 78 Mo. 555; State v. Walker, 98 Mo. l. c. 108.]

It results from what is said that this case should be reversed and remanded to be retried in accordance with the views herein.

It is so ordered.

Walker, P. J., and Brown, J., concur.


author: BROWN, J.

text:
    THE STATE v. JOHN C. WALTON, Appellant.
    Division Two,
    February 17, 1914.
    1. ALIBI: Inconclusive Evidence. The evidence brought forward to prove an alibi for defendant, which portrays him as a man fifty years of ag.e, without family or home, a cigar-maker of roving disposition, who occasionally dropped into Chicago to spend a few days or weeks with his brothers and sisters, and who never did any permanent work for anyone at any place, is held not to be convincing in this robbery case wherein the identity of the robber is an issue; and hence the jury were not without justification in disbelieving it.
    2. INFORMATION: Amendment During Trial: Change in Nature of Charge. Sec. 4970, R. S. 1909, declaring that an information “may be amended at any time before the case is finally submitted to the justice or jury” authorizes only such amendments as do not change the nature of the charge or the defense which may be interposed. If the degree or nature of the alleged crime be changed by the amendment it should not be permitted after the trial has begun.
    3. -: -: -: Adding “in the Presence of”: Defense of Alibi. Where the only change made in the information charging robbery by an amendment made after the trial had begun was tbe adding oí the words “in the presence of,” and, the only defense interposed was an alibi, which in nowise was rendered more difficult by the amendment, and the amendment did not necessitate the calling of other witnesses, the rights of defendant were not prejudiced by the amendment — the robbery not being disputed.
    4. JURORS: Reading Newspaper Comment. Where the jurors had read newspaper articles stating that there was widespread interest in. the trial, that it would likely consume an entire week, that the defendant had filed depositions by which he would attempt to prove he was in Chicago on the day of the robbery and that the defense of alibi had proven very useful to a certain noted criminal, .but before defendant made his peremptory challenges the jurors were re-examined by defendant’s attorney and the court, and each of them testified that he had not become prejudiced against defendant or the defense of alibi by reading the articles, the court did not err in refusing to discharge the jury.
    5. WITNESSES: Names not Indorsed on Information: Purpose. The indorsement of the names of witnesses for the State on the information often proves useful to the defendant, because it gives him an opportunity to interview those witnesses and find out what their testimony will be before going to trial. But the statute was not enacted solely to aid an accused; it was designed, in part at least, to regulate the taxation of costs and the granting of continuances to the State. After the prosecuting attorney had made a satisfactory showing that he did not know until a very short time before the trial that he would call the four witnesses whose names were not indorsed on the information and who defendant did . not know were going to be used, and that he did not purposely withhold their names from defendant’s attorney, the court did not err.in permitting them to testify.
    6. PREJUDICIAL REMARKS OF COURT: Proof of Specific Crime by Witness. After the defendant had attempted to impeach or discredit a State’s witness by proof of specific crimes alleged to have been committed by her and of which she had not been convicted, the court excluded evidence of other specific crimes, remarking within the hearing of the jury: “We cannot try every witness in this case; if we di(i, we would go into ramifications that would last the rest of our lives.” Held, that the court was hot without justification in placing some emphasis upon his ruling, and as his remark did not amount to an intimation to the jury of what his opinion was regarding the guilt or innocence of defendant, it was. not prejudicial.

      7. EVIDENCE: Prior Attempt to Arrest Defendant for Other Crimes: No Proper Objection. If the objection to certain evidence does not point out the particular ground which rendered it inadmissible, its admission was not reversible error. The admission of testimony that eight days before the robbery in Kansas City the police department of Chicago issued an order for the arrest of defendant, and that some of the policemen were looking for him from that date to and including th.e day of the robbery, even if it be conceded to have been improper, because tending to prove defendant had a bad reputation, when he had not testified or otherwise placed his. reputation in issue, was not reversible error, because it really had little or no bearing on the case and the only objection to it was that it was “leading and suggestive.”
    Appeal from Jackson Criminal Court. — Hon. Ralph 8. Lalshaw, Judge.
    Aeeikmed.

      Jesse E. James for appellant.

      John T. Barker, Attorney-General, and Paul P. Prosser, for the State.
    (1) The amendment of the information by inserting after the words ‘ ‘ from the person and against the will of the said B. J. Franklin” the words: “and in the presence of the said B. J. Franklin,” was not such as to cause any surprise to the defendant or to jeopardize his defense. The statute, which permits the amendment of the information at any time before the case is finally submitted to the jury, is a complete answer to defendant’s contention that the action of the court in this respect was error. Sec. 4970, R. S. 1909. (2) Not only was no specific ground of disqualification stated by the defendant against any one or all of the jurors whom he challenged, but the record wholly fails to show that any of such jurors were unfairly influenced in any manner whatever by such newspaper articles. Their competency was fully tested, and each and every one of them stated that he had not been prejudiced by such, newspaper articles either against the defendant or his counsel. The determination -of the qualification of these jurors rested in the discretion of the trial court, and his finding with respect to their competency will not be disturbed unless manifest error appears. State v. Williamson, 106 Mo. 169; State v. Bauerle, 145 Mo. 15; State v. Jackson, 167 Mo. 296. (3) The defendant specifically complains of the action of the Court “in allowing the State to introduce evidence to show that a general order was issued by'the police department of Chicago, Illinois, on July 12, 1911, to arrest the defendant herein.” While it may be said that such testimony indicated that the defendant had been wanted for some alleged offense other than that for which he was on trial, yet it is manifest that such was not the purpose of the testimony.' It was admitted upon the theory that it related to an important collateral fact, directly connected .with other facts developed at the trial that tended to show the defendant’s presence at the'time and place of the commission of the offense with which he was charged. It was clearly competent, not only as tending to establish the disputed identity of the defendant, but for the further purpose of rebutting the issue of alibi which he had tendered. State v. Walker, 194 Mo. 262; State v. Crane, 202 Mo. 85; State v. Sassaman, 214 Mo. 731. (4) The ground of defendant’s objection to certain witnesses testifying was that their names had not been endorsed on the information. It fully appears from the record that the names of such witnesses had not been purposely withheld from the defendant, and that knowledge of them had only reached the prosecuting attorney shortly before they were introduced at the trial. An examination of the record will readily convince this court that defendant’s contention is without merit, and that no error was committed in permitting such witnesses to testify over the objection of the defendant. State v. Henderson, 186 Mo. 482; State v. Barrington, 198 Mo. 68; State V. Sharp, 233 Mo. 283.
   BROWN, J.

Upon a trial in the criminal court of Jackson county defendant was convicted of robbery in the first degree, and appeals from a judgment flying bis punishment at fourteen years in the penitentiary.

On the morning of July 20, 1911, a jewelry store in Kansas City, owned by one B. J. Franklin and his brother, was robbed of diamonds valued at $4100 by two unmasked men. The State contends that defendant is one of the men who robbed the store, while defendant rests his defense upon an alibi.

Evidence covering nine hundred pages was submitted to the jury, and, while in his motion for new trial, defendant’s counsel assigns forty alleged errors of the trial court, he has not favored us with a brief.

That the Franklin store was robbed is not disputed, and to establish the alleged fact that defendant participated in the crime the State introduced evidence, the general outline of which runs as follows:

That defendant came to Kansas City in the fall of 1909 and opened a small cigar factory, which he operated less than three months; then selling his tools and going away. This evidence pertains to the question of identity. That about July 14, 1911, defendant returned to Kansas City and remained in that city until the 20th day of July, at which time he and a man named William Rock committed the robbery.

More in detail, the State’s evidence tends to prove that one Thomas .Bolton,, a bartender of Kansas City, became acquainted with defendant at Davenport, Iowa, in 1904, at which city defendant made cigars and frequented a saloon kept by said witness. On coming to Kansas City in 1909 defendant renewed his acquaintance with Bolton, and the latter introduced him to one ■Herman Oppenheimer, whose son was in the bonding business. Oppenheimer’s son furnished a bond do the Government for defendant as a cigar manufacturer. In filing this bond defendant gave the name of John C. Walton.

The defendant was positively identified by Bolton, the bartender, as the same man who established the cigar factory. He was also identified by Oppenheimer; by a woman from whom he rented rooms for' his cigar factory; by her fifteen-year-old son who did some work for defendant stripping tobacco; by one Frank Leofler, who sold him leaf tobacco and bought defendant’s tools when the latter went away; and by a jeweler who marketed one or two diamonds for defendant in the fall of 1909. He was also identified' by some six other witnesses as the same man who made cigars in Kansas City in 1909, but their acquaintance with him was slight and their evidence not important.

After leaving Kansas City in 1909, defendant was not heard of again until a few days before the robbery, when he went into the jewelry store and talked with the Franklin brothers about fifteen minutes in regard to a diamond worth seven or eight hundred’ dollars, which he. expressed a desire to purchase. A day or two later the Franklins observed defendant looking through their window at their display of diamonds. On that day he did not go into the store.

About 8:15 on the morning of July 20, 1911, while B. J. Franklin was opening the safe where the firm’s diamonds were kept at night, defendant walked into the store and began talking about the proposed diamond purchase. Presently, another stranger named William Rock came in, and, after offering Franklin a piece of paper, seized him by the throat, and the two men pushed Franklin a few steps away from his safe. In this scuffle defendant fired a shot at Franklin, who fell to the floor and feigned insensibility. As soon as Franklin fell defendant took a tray, or box, containing $4100 worth, of diamonds, out of the safe, and the two strangers started to run away. Franklin arose and pursued them some thirty-five yards to the saloon where witness Bolton was working. At the saloon door defendant halted long enough to fire a second shot at Franklin. This shot also went wild and wounded one Seitz who was passing along the street. Defendant ran through the saloon and escaped.

Bolton, the bartender, testified that on coming to Kansas City in 1911 defendant again renewed his acquaintance with witness. That defendant and Rock came into the saloon several times a few days before the robbery; that they were in the saloon shortly after six o’clock the morning of July 20th, and that defendant came in again after the robbery about nine o ’clock a. m. and asked what became of his partner. Bolton was corroborated in regard to this last visit by another bartender in the same saloon.

One Ella Wonser, who kept a rooming house, testified that defendant rented a room from her six days before the robbery. That about ten o’clock on the morning of the robbery defendant came into his room, changed his clothes and put on a cap, leaving a panama hat which he had been wearing, and did not again return. Mrs. Wonser’s identification'of defendant was most positive. Her daughter, Mrs. Hill, who was at the time helping to run the rooming house, likewise identified him. Two witnesses who were on the street identified defendant as the man who ran out of Franklin’s store with a box or tray under his arm. Two witnesses testified that Mrs.-Wonser’s reputátion was bad, but the other witnesses who testified for the State were not impeached.

All the witnesses for the State testified that defendant wore a mustache when he was in Kansas City in the years 1909 and 1911; and three other witnesses from Elgin, Illinois,' testified that he had a mustache when arrested, and that his mustache was shaven off at the time of the trial, thereby changing his appearance. No explanation was given as to why defendant removed his mustache after his arrest. He was not sworn.

The chief of police addressed defendant as Walton when the latter was brought to Kansas City after his arrest. Defendant told the chief that his name was not Walton, and denied having been in the cigar business in Kansas City, and asserted that he would “rot” before he would make any statement.

Defendant introduced some twenty witnesses, by whom he attempted to prove that his name was Maus, and that he lived at Chicago and was in that city on July 20, 1911 (the day the crime was committed). Some of defendant’s witnesses knew him as John Maus, others as Jake Maus, and still others as Speck Maus. When arrested at Elgin, Hlinois, he gave the name of John Williams.

Three witnesses — a wholesale cigar dealer, a saloon keeper and a politician — testified that they attended a baseball game with defendant in Chicago on July 20th. Two sisters, a brother, and several other witnesses gave evidence tending to prove that defendant was in Chicago on July 20, 1911, and for several days prior to that date.

It was proven that, under the train service as it existed in July, 1911, defendant could not, by leaving Kansas City after eight o’clock in the morning, have reached Chicago in time to attend a ball game on the same day.

The picture which defendant’s witnesses portray of him, through their evidence, represents a man fifty years of age, without family or home; a cigar-maker of roving disposition, occasionally dropping into Chicago to spend a few days or weeks with his brothers and sisters. If he ever did any permanent work anywhere, or for anybody, no witness was called who gave satisfactory evidence of that fact. William Eock, who was apprehended a few moments after the crime was committed, pleaded guilty and is serving a term in the penitentiary, testified from a photograph of defendant that he is not the man who robbed the jewelry store.

After carefully reading all defendant’s alibi evidence, we will only say that it was- not very convincing, and the jury were not without justification in disbelieving it. Such other facts as are necessary to a full understanding of the case will be noted in our opinion.

Of the many alleged errors assigned by defendant we find only five which are of enough importance to justify comment in this opinion, to-wit: (1) amendment of information after the trial had begun; (2) newspaper comments on the trial read by the jury; (3) permitting witnesses to testify for the State whose names were not indorsed on the information; (4) alleged unfriendly comments by the trial court; and, (5) admission of evidence tending to show that defendant had committed other crimes.

OPINION.

' I. Below we quote the body of the information with the amendment noted in italics:

“Now comes Mord M. Bogie, Assistant Prosecuting Attorney for the State of Missouri, in and for the body of the county of Jackson, and upon his oath informs the court, that John C. Walton, alias Jacob Moss, alias Speck Moss, alias Carl Lutz, whose Christian name in full is unknown to said prosecuting attorney, late of the county aforesaid, on the 20th day of July, 1911, at the county of Jackson, State of Missouri, with force- and arms, in and upon one B. J. Franklin, unlawfully and feloniously did make an assault, and one Tiffany diainond ring, one and five-eighths plus one sixty-fourth carats, size five, of the value of one hundred and'seventy-five dollars, and ninety-two diamond stones set in studs, ear rings and rings in the aggregate value-of four thousand dollars, all in the aggregate of the-value of forty-one hundred and seventy-five dollars, the money and personal property of the said B. J, Franklin and one B. B. Franklin from the person and against the will of the said B. J. Franklin and in the presence of said B. J. FrcmTdin then and there, by force and violence to the person of the said B. J. Franklin and by putting the said B. J. Franklin in fear of an immediate injury to his person, feloniously did rob,, steal, take and carry away; against the peace and dignity of the State.”

This amendment-was made after the jury had been sworn and two witnesses for the State had given their evidence. The amendment was objected to and exceptions duly saved by defendant’s attorney at the-time.

Section 4970, Revised Statutes 1909, provides that an information “may be amended at any time before-the ease is finally submitted to the justice or a jury,, and no amendment shall cause a delay of the trial,, except at the instance of the defendant for good cause-shown upon oath or by affidavit.”

This statute is somewhat sweeping in its phraseology, but is generally construed to authorize only such amendments as do not change the nature of the-charge or the defense which might be interposed. If the degree or nature of the alleged crime be changed by the amendment it should not be permitted. [State v. Emberton, 45 Mo. App. 56; and State v. Jenkins, 92. Mo. App. 439.]

Judge Kelley in his treatise on Missouri Criminal Law and Practice (3 Ed.), section 216a, says:

“The information, unlike' an indictment, may be-amended in matter of form or substance at any time by leave of court before the trial, and on the trial as. to all matters of form and variance, at the discretion of the court, when the same can be done without prejudice to the substantial rights of the defendant, on the merits.”

In 22 Cyc. 440, the following rule is announced:

“The test as to whether a defendant is prejudiced by the amendment of an indictment has been said to be whether a defense under the indictment as it originally stood would be equally available after the amendment is made, and whether any evidence defendant might have would be equally applicable to the indictment in the one form as in the other.”

The amendment made in this case constituted a variance, but not a change in the nature of the crime charged, nor the degree of punishment which might be inflicted upon a conviction thereunder. For the purposes of this review we have the right to consider the nature of the defense interposed in ascertaining whether or not defendant was prejudiced by the amendment. His defense was, first and all the time, an alibi, which was not rendered more difficult to sustain by the amendment. The amendment did not necessitate the calling of other witnesses by defendant, nor did he ask for time to subpoena other witnesses. The amendment made in this case might, if permitted in some other case where the defense is different, constitute a fatal error, but we are unable to see how in this case, under the facts presented by the record, it worked any prejudice to the defendant on the merits. For the foregoing reasons this assignment will be disallowed.

II. After the jury in this case had been selected, .and before they were finally sworn to try the cause, two newspapers of Kansas City published articles concerning this case, in which articles comments were made upon the widespread interest in the trial; the fact that it would likely consume an entire week; and that the defendant had filed depositions by which he would attempt to prove that he was in Chicago on the day of the alleged robbery. A farther comment was made to the effect that the defense of alibi had proven very useful to a certain noted criminal by the name of Kennedy when he was in trouble.

These newspaper articles were read by several of the jurors, but before the defendent made his peremptory challenges the jurors were re-examined by defendant’s attorney and the court, and each of them testified that he had not become prejudiced against defendant or the defense of alibi by reason of said articles. Upon the facts disclosed we find that the trial court did not err in refusing to discharge the jury selected and summon a new panel.

III. Over the objections and exceptions of defendant the trial court permitted the State to introduce four witnesses whose names had not been indorsed on the information, and who the defendant did not know were going to be used as witnesses. The prosecuting attorney made a satisfactory showing that he did not know that he would call these witnesses until a very short time before the trial, and that he did not purposely withhold their names from defendant’s attorney.

The indorsement of the names of witnesses for the State on informations and indictments often proves useful to the defendant, because it gives him an opportunity to interview those witnesses and find out what their evidence will be before going to trial. However, the law (Secs. 5057 and 5097, R. S. 1909) was not enacted solely to aid the accused in finding out what the evidence on the part of the State will be. It was designed, in part, at least, to regulate the taxation of costs and the granting of continuances on the part of the State. [State v. Rasco, 239 Mo. 535.] We find that the trial court did not abuse its discretion in permitting witnesses to testify whose names had not been indorsed on the information, and we, therefore, overrule this insistence.

IY. It is further contended that the trial court, made improper and prejudicial remarks within the hearing of the jury when it excluded evidence which tended to prove the commission of a specific crime by the State’s witness, Ella Wonser. In excluding that testimony the court said: “We cannot try every witness in this case; if we did we would go into ramifications that would last the rest of our lives.” Prior to this remark the defendant had made other attempts to impeach or discredit the witness Wonser by proof of specific, crimes alleged to have been committed by her, and for which she had not been convicted. The trial court was not without justification in placing some emphasis upon his ruling. His remark did not amount to an intimation to the jury as to what his opinion was regarding the guilt or innocence of defendant, and we do not believe it harmed him in any way. This contention will also be overruled.

V. A further insistence of defendant is that the court erred in permitting some of the State’s witnesses to testify that the police department of Chicago had, on July 12, 1911, issued an order to the pojjee force 0f that city to arrest defendant,' and that some of the policemen of said city were looking for defendant from July 12th up to and including' the day the jewelry store was robbed in Kansas City. Conceding’ that this evidence was improper because tending to prove that defendant possessed a bad reputation when he had not testified, or otherwise placed his reputation in issue; yet, we find that the objections to this evidence did not point out the particular ground upon which it was rendered inadmissible. The only objections made were that it was “leading and suggestive.” Therefore, its admission does not constitute error. [State v. Pyles, 206 Mo. l. c. 632.] The particular evidence complained of really had little or no hearing in the case, because it does not show that the police of Chicago ever visited the home of defendant’s sister where it is claimed by defendant’s witnesses that he was stopping.

The defendant was represented hv able counsel; the case was fully and fairly tried, and, the record containing no reversible error, the judgment will be affirmed.

It is so ordered.

Walker, P. J., and Faris, J., concur.


text:
    THE STATE v. OWEN PATTON, Appellant.
    Division Two,
    February 17, 1914.
    1. REFRESHING MEMORY OF WITNESS: Data Not Seen by Adverse Party: Not Ground of Motion for New Trial. A defendant prosecuted for a crime is entitled to see data used by tbe State in refreshing tbe memory of a witness, and it was error for tbe court to refuse to allow defendant and bis counsel to examine that part of tbe transcript of tbe testimony of witnesses before tbe grand jury which tbe prosecuting attorney used at tbe trial for tbe purpose of refreshing their memory; but unless tbe error was urged in tbe motion for a new trial it cannot be considered on appeal.
    2. -: Reading from Grand Jury Notes. The Constitution provides that an accused person upon bis trial has tbe right to be confronted with bis accusers, and that prevents tbe prosecuting attorney at tbe trial from reading, verlMtiim and without any identification of tbe paper, from tbe transcript of tbe ex parte testimony of a witness before tbe grand jury and asking him if be did not testify to those things. If be finds the witness hostile or evasive or of hazy memory, be may use tbe testimony taken before tbe grand jury to refresh tbe witness’s memory, not for tbe purpose of identifying tbe paper as being a true transcript of bis testimony and then offering it to tbe jury or reading it to them, but for the purpose of exhibiting it to him to permit him, if be wish, to examine his testimony, his signature and other insignia of verity and having been so examined and identified as a true copy of the testimony, for the purpose of asking him again the question upon which. he has deviated or was doubtful. But the copy cannot be used to contradict the witness, nor the questions and answers before the grand jury read to the jury or to him in the presence of the jury, followed by a further inquiry to the effect if those questions were asked him and those answers made before the grand jury. [Disapproving Everson v. Investment Co., 130 Mo. App. 1. c. 308; and State v. Draughn, 140 Mo. App. 267.]
    3. -: -: Past and Present Recollection. There is- a wide difference between the doctrine of past and present recollection of a witness and that of refreshing his present recollection. In the former case the witness speaks from a record made by himself, or from one which when it was made he knew to be a true and correct recital of the facts, but of which when he testifies he has no independent present recollection, and regarding which he remembers only that, when the record shown him was made, it was correct. In that case the paper itself is competent. But a writing used for refreshing the memory of a witness is not itself competent, even in a civil case; and for a stronger reason, on account of the constitutional requirement for the confrontation of witnesses in a criminal case, the testimony of a witness taken before the grand jury should not be read to or in the presence of the trial jury.

      4. HEARSAY EVIDENCE: Boys-Said Reputation. In the prosecution of Patton for keeping a gambling device, testimony that the “boys” called the place kept by him as “Hi Patton’s place,” is pure hearsay, and incompetent. Even if desired to be used as reputation evidence, a proper foundation must be laid to make it competent as general reputation.
    5. GAMING DEVICE: Insufficient Evidence. The evidence in this, case was not sufficient to sustain a conviction of the felony of keeping a gambling device, though it may be sufficient to support a conviction of the misdemeanor of playing “craps.”
    6. INSTRUCTION: Circumstances. In the prosecution of a defendant for feloniously keeping a gambling device, the State is entitled to all the circumstances tending to show that he was the keeper thereof; and an instruction asked by him which tells the jury “that the showing by the State of one or more acts of the defendant in connection with the crap game, tending to show that the defendant was at the time and place mentioned in the testimony the keeper of said crap table,” etc,, should be refused.

      Appeal from Callaway Circuit Court. — Hon. David H. Harris, Judge.
    Reversed and remanded.

      E. S. Gantt for appellant.
    (1) There is no evidence that the defendant was the keeper of the game and the peremptory instruction should jhave been given. State v. Miller, 234 Mo. 588; State v. Solon, 247 Mo. 672; Nelson v. IT. S., 28 App. D. C. 32; Howard v. State, 91 S. W. (Tex.) 785; Blum v. State, 47 S. W. (Tex.), 1002. First: There is no evidence that defendant set up, kept or furnished the table. Second: There is no evidence that defendant kept or furnished the dice. Third: There is ho evidence that the defendant had the care or management or acted as master in charge of said table and pair of dice. Every element of the offense must be proven to convict the defendant. State v. Solon, 247 Mo. 673; State v. Bass, 251 Mo. 108. (2) The testimony of the witness Moore, that the room in question was “called and spoken of by the boys” as Hi Patton’s and Rogers’ and Patton’s place or room was the merest hearsay, inadmissible and prejudicial to defendant. Mache v. State, 109 S. W. (Tex.), 126; State v. Levy, 168 Mo. 522; State v. Walsh, 203 Mo. 605; State v. Hughes, 71 Mo. 633; Sara v. State, 22 Tex. App. 639; Lorairie v. State, 22 Tex. App. 640; Gambel v. State, 21 Tex. App. 357; Allen v. State, 35 Tex. App. 320; Burton v. State, 16 Tex. App. 156; WTiarton’s Criminal Evidence (9 Ed.), see. 260; State v. Hand, 7 Iowa, 411; State v. Mosby, 53 Mo. App. 575. (3) The court erred in permitting the prosecuting attorney to read from notes of the grand jury to witnesses and ask them if they didn’t so testify before the grand jury. Comm, v, Phelps, 77 Mass. (11 Gray) 73; Pride v. State, 107 S. W. 819. The prosecuting attorney has no right to cross-examine or impeach his own witnesses. ITn■der' proper circumstances, he may have the witness read his testimony given before the grand jury for the purpose of refreshing his memory. After the witness has read his testimony before the grand jury, he may then inquire of the witness what his recollection is about the matter. In other words, the witness must testify from his own recollection after he has read his ■testimony before the grand jury. Shrouder v. State, 121 Ga. 615; State v. Aspara, 113 La. 940; Smith v. State, 46 Tex. Cr. 267; State v. Legg, 59 W. Va. 315; Billings v. Ins. Co., 70 Vt. 477; Yastbinder v. Met-calf, 3 Ala. 100; Fitzgibbon v. Kinney, 3 Har. 317; Finch v. Barclay, 87 Ga. 393; Johnson v. Culver, 116 Ind. 278; Owings v. Shannon, 8 Ky. 188; Key v. Lynn, 14 Ky. 338; Mitchell v. Robinson’s Exr., 7 Ky. L. R. 98; Lawrence v. Barker, 5 Wend. 301; Green v. Brown, 3 Barb. 119; Howie v. Rea, 75 N. C. 326; Putnam v. United States, 162 U. S. 687. (4) The court erred in not giving the instruction asked by the defendant: That instruction told the jury that before they could convict the defendant, they should consider the whole ■evidence in the case, and unless they believed beyond a reasonable doubt, from the whole evidence, that the defendant was the keeper, then they should acquit him, ■even though some circumstances in the case might raise a suspicion in their minds. State v. Miller, 234' Mo. 588; State v. Howell, 117 Mo. 324; State v. Wells, 111 Mo. 533.

      John T. Barker, Attorney-General, and Ernest A. ■Green, Assistant Attorney-General, for the State.
    (1) The trial court’s ruling was entirely correct. The prosecuting. attorney undoubtedly had the right to refresh the witnesses’ memories from the memoranda of their evidence taken before the grand jury, as the witnesses seemed to have failed in memory. 1 Greenleaf on Evidence, sec. 436; Sandwell v. Sand-well, Comb. 445, Holt. 295; Nichol v. Webb. 8 Wheat. 326; Wood v. Cooper, 1 Car. & K. 645 ; Billingslea v. State, 85 Ala. 323; State v. Miller, 234 Mo. 588. It is not the memorandum that is competent, it is the memorandum that may be used to refresh the witness’s memory. Putnam v. U. S., 162 U. S. 697; Hickory v. U. S., 151 Ú. S. 303; Morrison v. Chapin, 97 Mass. 72; Insurance Co. v. Evans, 15 Md. 54. (2) The ruling of the trial court in denying the request of defendant’s counsel to examine the notes of the testimony given by the witnesses before the grand jury is not subject to review on this appeal, as no exception was taken in the motion for a new trial to the trial court’s action in this regard. Sec. 5285, R. S. 1909; State v. Mann, 83 Mo. 589; State v. Scott, 214 Mo. 257; State v. Wilson, 225 Mo. 503; State v. Holden, 203 Mo. 581; State v; Gatlin, 170 Mo. 354. (3) The testimony was amply sufficient to prove every essential element of the charge filed against the defendant. Sec. 4750, R. S. 1909; Stevenson v. State, 83 Ga. 575 ; Scott v. State, 29 Ga. 263; State v. White, 123 Iowa, 425. One who permits or suffers a house or place owned, occupied or controlled by him to he used for gambling purposes violates this statute. State v. Stillwell, 20 Ark. 96; Stith v. State, 13 Ark. 680; Alexander v. Commonwealth, 12 Ky. L. R. 470; State v. Ebert, 40 Mo. 186; State v. Smith, 19 Mo. 683; State v. Pulton, 19 Mo. 680; State v. Mohr, 55 Mo. App. 329. Where two or more persons have the joint control or occupancy of premises (as in this case), one of them may be guilty and his cotenants innocent of the offense of permitting the use of premises for gaming. "White v. Comm., 5 Ky. L. R. 318.
   FARIS, J.

Defendant was convicted in the circuit court of Callaway county upon an indictment charging' him with the offense of feloniously keeping a gambling device, consisting, as it is averred, of a crap table upon which dice were used, and which table and dice constituted a device adapted for the playing of the game commonly called “craps.” The trial of the defendant resulted in his conviction and the fixing of his punishment at imprisonment in the county jail for a term of one year. After the usual motions for a new trial and in arrest, defendant'has appealed and is now here urging reversal.

The facts, in the view we take of the case, are not of very much pertinence, hut in brief they tended to show that some time prior to the 5th day of February, 1912, upon which date the indictment lays the offense; defendant and one Rogers were partners in the second-hand furniture business at Fulton, Missouri. They used for their business, in addition to their store room, an old building containing two rooms, as a warehouse for the storing of such furniture as they were unable to get into their store. This old building had formerly been used as a paint shop by said Rogers. In the back part of this paint shop was a room which could be entered from the rear, or from an alley adjoining it, or by going through the paint shop. On divers days about the 5th of February, 1912, the testimony shows that there was in this rear room of the paint shop an old table, covered with cloth, which some of the witnesses spoke of as an old billiard table. It is not definitely stated, however, that it was an old dismantled billiard table; merely that it had the appearance of such. There was a pool hall in the vicinity. The testimony shows that defendant Patton, on three or more occasions about the date mentioned, was in this room sitting by this table and engaged with the witnesses who testified in the case and with other persons, in the playing of craps with dice upon the table in question. • The testimony shows that, defendant himself played the game of craps and made bets thereon and that he rolled the dice as. did the others who were seated about the table and who were engaged in the several games. One witness says that he “supposed” that defendant was banking the game; another one verified the state-. ment made in the witness’s testimony before the grand jury,, which was exhibited to the witness, thatdefend.ant was banking the game. Aside from the fact that the room in question, from its location and situation as a part of the warehouse, was in the possession of the defendant and his partner Rogers, and that the table and the dice were in that room at the time; that defendant was seen on several occasions sitting by the table rolling dice, and making bets upon plays; that he cashed two checks for a certain player to enable him to get money with which to play; that one witness “supposes” that defendant was hanking the game, and another states as a conclusion, hut not the facts on which he bottoms the conclusion, when the witness’s memory is refreshed in the manner below stated, that defendant was banking the game, there is no evidence that defendant ever set up or kept the table or device, and none, except the inferences arising from the facts stated, that he owned either the table or the dice which together are alleged to constitute the device denounced.

Upon the trial the prosecuting attorney, under the guise of refreshing the memory of Moore, Sheets and -Qualls, who were witnesses in the case for the State, read from their testimony given by them before the grand jury and asked these witnesses categorically if they had not made the statements which he read to them. The defendant duly objected to this action of the prosecuting attorney and, being overruled, properly saved his exceptions.

As showing clearly and definitely what occurred in this behalf we set out below an excerpt from the record showing in detail the maimer, and form of the examination, the objections and exceptions of the defendant and the ruling of the court' thereon:

“Q. Just to refresh your memory, I will ask .you if you didn’t testify before the grand jury in May, 1913, to this fact—
“By Mr. Gantt: If the court please, I object to the prosecuting attorney asking the witness if he didn’t testify to certain things before the grand jury. The question now is, what this witness under oath remembers of this occurrence and we object to the prosecuting attorney using notes of'the grand jury or notes of something else in which it does not appear who took the notes, or it does not appear anything about it.
“By the Court: Objection overruled.
“To which action of the court the defendant, by his counsel, then and there at the time duly excepted and saved his exceptions.
“By Mr. Cave (reading): ‘I was in Patton’s place two or three times in January and February, 1912, and found Patton sitting at the table with a stack of money in front of him.’ Is that true or not? A. Yes, sir; and he was not the only one that had money in front of him.
“Q. You did see him at that time, or about that time ? A. I could not say for sure.
“Q. Didn’t you testify to that before the grand jury? A. Well, I reckon I did — if it is down there. I testified, of course.
“Q. Didn’t you also testify to this: That you shot craps there at that time and that you were playing on a sort of a pool table? A. Yes, sir.
“Q. And that Patton was banker of the game and sat there with a stack of money at his side ?
“By Mr. Gantt: We .object to this witness stating that Patton was the banker of the game. That is a matter for the jury to determine after hearing the testimony.
“By the Witness: Somebody explain what a banker is and I can tell.
“Q. By Mr. Cave: Didn’t you testify to those facts—
“By the Court: He is asking yon whether or not yon testified to that before the grand jury. Did yon, or not?
“A. How can I remember now what I testified down there?
“By the Court: Don’t you ask questions — you answer that question ‘yes’ or ‘no,’ if yon can. Do you know whether you testified that before the grand jury?
“A. I know I testified some things.
“By the Court: Eead that to him again. We will see if we can’t help his memory some.
“By Mr. Cave, reading: ‘We played on an old pool table. Patton was banker of the game and sat there with a stack of money at his side.’ Did yon testify to that before the grand jury?
“A. I think I did.
“Q. ‘The rest of the boys stood up around the table.’ Did you testify to that? A. Yes, sir, we all stood up. .
“Q. ‘I would put my money down on the table and Patton would take money from his stack and fade me and then I would roll the dice.’ Did you testify to that? A. Yes, sir/’ *

The above method of examining the witnesses for the State was used by the prosecuting attorney as to others' of the State’s witnesses. But as what we have set out above illustrates the nature of the alleged error, we need not burden the record with but the one instance.

Other facts in the case, if they shall become necessary to elucidate what we say, will be found set forth in the opinion.

I. A number of alleged errors are called to our attention by the brief filed herein by learned counsel for defendant. It was urged upon us in oral' argument made prior to the filing’ of defendant’s brief, which is now before us,, that the court erred in refusing to allow defendant and his counsel to examine the transcript containing the testimony which the witnesses gave before the grand jury, and which testimony the State used to refresh the witnesses’ memory. This objection is abandoned in the brief filed for defendant. It is just as well that it is so, for the reason that no such matter was urged in the motion for a new trial. It is well settled that the adverse party is entitled to see the data used in refreshing the memory of the witness, in order that he may cross-examine the witness touching the same. But it is equally well settled that an error of this sort must be called to the attention of the trial court by the motion for a new trial. This objection, therefore, to which, in its connection with another matter urged, we shall again advert, is disallowed to defendant because he failed to preserve it properly for our review.

Our bill of rights as written in our Constitution provides that an accused person upon his trial has the right to be confronted with his accusers. What was done here violated the rule of confrontation. [Billingslea v. State, 85 Ala. 323.] If the State may use a sort of evidence which cannot, the statutory provision for secrecy regarded, ordinarily be available to the defendant, such use should be based upon a condition of things akin to the necessity of the case, and in order to forestall a miscarriage of justice; so that the enforcement of the criminal law may be carried on with dignity and not so as to become a “hissing and a by-word.”

In reason and logic we must deduce the privilege here of refreshing recollection from the well-settled rule that a witness being fair and truthful and desirous of stating the facts as they were, but being by the lapse of time of hazy memory, may refresh his recollection by referring to writings, plats, maps and similar things made by the witness himself. [Green v. State, 53 Tex. Crim. App. 190.] He may likewise use in refréshing his memory, data, instruments, plats or other papers, which he knows to be correct, however he may have obtained such knowledge, as for example, because such data were made in his presence, or under his direction, or dictated by him, or in divers other ways; bnt not by papers of which he knows nothing of their correctness or verity, and of which he had no part in the making. [State v. Fannon, 158 Mo. 149.]

The last clause of the above statement is not in accord with the view taken by Mr. Wigmore, the learned editor of the sixteenth edition of Greenleaf on Evidence (1 Greenleaf on Evidence, [16 Ed.], 439c) where it is said, that the memory of the witness may be refreshed by any paper whether the same is known by the witness to be correct or not. This view of Mr. Wigmore has been followed by our St. Louis Court of Appeals. [Eberson v. Investment Co., 130 Mo. App. l. c. 308.] We do not find this statement of the learned author and of the Conrt of Appeals to be borne out either by the cases which he cites to support it, or by the great weight of the authorities which we have examined and a few of which we cite. [Wellman v. Jones, 124 Ala. 580; Acklen v. Hickman, 63 Ala. 494; Doyle v. Railroad, 113 Ill. App. 532; Dryden v. Barnes, 101 Md. 346; Davis v. Allen, 9 Gray (Mass.), 322; Fritz v. Burriss, 41 S. C. 149; Greiner v. Ins. Co., 40 Pa. Sup. Ct. 379; 40 Cyc. 2458.] The ease with which, as Prof. Muensterburg tells us, the human mind is influenced by suggestion, would seem to form an insuperable psychological objection to the use of data for this purpose, of the correctness of which the witness is ignorant. However this may be.and whatever may be the weight of authority on this question, the Missouri rule, which we must follow unless we deem it wrong on principle, as we do not, is in accord with what we here say and against the rule urged by Wigmore’s Greenleaf. In the case of State v. Fannon, supra, it was said :

“As the case must be reversed for errors already noted, we add that if this case is further prosecuted no such liberality should be shown against the prisoner as to permit the justice of the peace to swear by an exhibit filed by defendant in the case to refresh his memory. This witness, in view of all the circumstances, should have been required to testify to the testimony of the defendant, without the aid of defendant’s offset. Tie was by no means an unwilling witness, and the court should not have permitted him to be led as he seems to have been in giving his evidence. ’ ’

Since the witness may use such data of his own volition (State v. Kremling, 53 Iowa, 209; Wagner v. State, 53 Tex. Crim. App. 306), it would seem logically to follow that the prosecuting attorney, if he finds the witness hostile, or evasive, or of hazy memory, may also use data to refresh the memory of the witness. Such writings, whether they be notes, or copies of evidence taken before-the grand jury, and made naturally out of the presence and hearing of the defendant on trial, or other data, are not as to their contents, competent. The offering of their contents violates the hearsay rule, as also that provision of the Constitution which vouchsafes to the accused person on trial the privilege of confrontation by his. accusers. We know of no reason, however — certainly none arises from our statute enjoining secrecy — -why the State may not, in a proper case, use the testimony of a witness taken before a grand jury to refresh the bad recollection of that witness. If these grand jury notes are used for this purpose, it would seem that the simplest logic would dictate a plain and easy means of a proper use. Clearly that they may not be used as a means of oppression, smacking of the “third degree,” or as a method of unfair advantage known to, and therefore open to be used by, the State, and not by the defendant, they ought to be used in the first instance from the necessity of the case and only in the sound discretion of the trial court. "When the State is examining a witness for the State who has, as to the matter on trial, theretofore given evidence before the grand jury upon which evidence, so taken ex parte before this secret inquisition, the indictment on trial was found, or is partially, or wholly based, and the witness is evasive, or untruthful, or so contradicts his evidence before the grand jury as to surprise the State, the memory of the witness may be refreshed by the copy of the notes, or the transcript of the witness’s testimony taken before the grand jury. Eefreshing, as we here use the word, does not mean identifying the paper writing as being a true transcript of what the witness said before the grand jury, and then reading the paper to the jury, or to the witness in the presence and hearing of the jury; neither does it mean offering the paper writing or copy of the witness’s grand jury testimony to the jury. For if ■either be done, it would be tantamount to offering (and nearly as unfair as it would be to offer) both the witness himself and the deposition of the witness taken ex parte out of the presence and hearing of the defendant, and without giving notice of the taking thereof — and so making by indirection two witnesses to grow where only one grew before. But the State having been surprised by the testimony of the witness ■on the trial by reason of a serious departure from and contradiction of the witness’s former testimony taken before the grand jury, may ask the witness, in order to refresh his memory, if he did not testify before the grand jury, and may exhibit the paper (withont reading it and without corporeally offering to the jury the paper, or the contents thereof) to the recalcitrant witness, permit the witness, if he wish, to examine his testimony, his signature and other insignia of verity, for the purpose of identifying the copy of the testimony as a true type of what the witness said. Then when he has identified and examined his testimony, the question upon which he had deviated or was doubtful, before he refreshed his memory, may again be asked the witness. If necessary to prevent the contents of the paper shown to the witness from getting to the jury, the latter may be withdrawn while the witness is examining and identifying his testimony. Manifestly from the reason and history of the rule, if the witness deny his statements or refuse to identify the paper as a copy of what he said before the grand jury, the State is concluded and such paper may not be identified by another witness present, as for example, a member of the grand jury, and then be used to refresh the memory of the reluctant witness, however great the advisability of the situation may dictate the subsequent refreshing of the witness’s memory by a' prosecution of him for perjury. This, for the reason that one may not impeach his own witness; and, besides, it is difficult to see how the memory of a witness could be refreshed by a paper made up of statements which the witness denies he ever made.

Learned counsel for the State have from the citations furnished us, confused the doctrine of past and present recollection, with that of refreshing present recollection. [1 Greenleaf on Evidence (16 Ed.), 439a, 439c.] In the former case the witness speaks from a record made by him, or from one which when it was made, he knew to be a true and correct recital of the facts, but of which, when he testified he had no^ independent present recollection, and regarding which he remembers only that, when the record shown him was made, it was correct. In effect, in lieu of his own testimony he introduces a witness and merely vouches for that witness’s veracity. In such case the paper, writing or instrument so identified, that is, the witness vouched for, is itself competent as evidence and may be offered. [State v. Brady, 100 Iowa, 191; Moots v. State, 21 Ohio St. 653.] But upon the precise question before its, that of refreshing present recollection, the data used for refreshing the memory is not itself competent, even in a civil case. [Acklen v. Hickman, 63 Ala. 494; Elmore v. Overton, 104 Ind. 548; Curtis v. Bradley, 65 Conn. 99; Eder v. Reilly, 48 Minn. 437.] This is so far the reason stated by Lord Ellenborough, in Henry v. Lee, 2 Chitty, 124, that “it is not the memorandum that is the evidence, but the recollection of the witness.” The party whose witness uses the data to refresh his memory has no right to have the same read to or handed to the jury. It is only the adversary party who may, if he wish, use the memory refreshing data to impeach the witness’s recollection, or to cast doubt upon the question of whether the witness’s testimony was in fact refreshed. [1 Greenleaf on Evidence (16 Ed.), 439c.] A fortiori then, should it be forbidden in a criminal case to read to or in the presence of the jury the testimony of the witness taken before the grand jury, on account of the constitutional requisite of confrontation, by which it is guaranteed that an accused person upon his trial may “meet the witnesses against him face to face.” [Constitution of Missouri 1875, sec. 22, art. 2.]

In the case at bar the learned and diligent prosecuting attorney read verbatim to the witnesses Moore and Qualls and to other witnesses for the State, question after question and answer after answer from the paper which the attorney stated was the transcript of the testimony of these witnesses as given by them before the grand jury. As to one or more of these witnesses the alleged transcript of the witness’s testimony was not identified by him, nor does its identity otherwise appear, either as being the record of the grand jury, or as being a true copy of the testimony of such witness before that body. But the State plunged in medias res and began reading the answers from the paper to the jury, merely pausing occasionally to ask the witness if he had made such answers before the grand jury.

For the reasons which we labor to make clear this was prejudicial error for which the case must be reversed.

» We have found but one case like the one at bar in respect to refreshing the memory of a reluctant witness by showing him what he testified to before the grand jury. That is the case of State v. Draughn, 140 Mo. App. l. c. 267. There no reason whatever is given for the rule announced, and the cases cited do not, except in the most remote principle, bear out the rule. The case of Smith v. State, 108 Am. St. 991, which was a Texas case, is almost in point, except that the witness whose memory was refreshed by the grand jury notes of his testimony, stated that he had an independent recollection of the facts aside from that produced by the refreshment afforded his memory by the notes. In the cases of Wagner v. State, 53 Tex. Crim. App. 306, and State v. Kremling, 53 Iowa, 209, the witnesses themselves being in doubt, and of hazy memory, asked to see their testimony as given by them before the grand jury. This was permitted and it was held on appeal not to be error. There may be other cases, but we have not been able to find them after a most diligent search.

However, for the reasons which we set out, and which seem sound to us, such refreshing of the memory of a witness in the manner and to the extent and under the circumstances above suggested is permissible.

II. As this case will have to he tried again, if the State is so advised, we may as well say that it was error to permit testimony that the “boys” eapep ^ p¡ace kept.by the defendant, “Hi Patton’s place.” This was hearsay pure and simple, The witness would as well have said that he heard John Doe, John Smith and Richard Doe, the same being the.names of the “hoys” who frequented the place and who conversed with the witness, say it was operated by defendant and was “Hi Patton’s place.”

If this testimony could he upheld as being admissible as reputation evidence, touching the competency of which upon the facts here and the point to be proved here, we give no opinion, then no .proper foundation was laid to make it competent as general reputation.

IH. If there he taken from this case the hearsay testimony, the testimony as to what the witnesses supposed, and the other incompetent eviaen.ce read, from the grand ]ury notes, then there is not enough competent testimony left in this record to subject- even a crap shooter (whose generally depraved altitude in the scale of humanity, morals and decency we need not pause to characterize) to the danger of incarceration in the penitentiary .for a term of two years. [State v. Solon, 247 Mo. 672; State v. Miller, 234 Mo. 588.] In the case of State v. Solon, supra, we labored to show the elements which distinguish the felony of setting up a gambling device, from those which go to make up the ordinary misdemeanor of gaming. We often find a dangerous twilight zone where the facts so imperceptibly shade into a felony on the one side and into a misdemeanor on the other, that it is almost impossible to distinguish the line of demarcation. The Legislature has the right to say that a pack of cards carried by a traveler; a writing table, or a washstand in a guest room of an inn; an idle hour, an idle friend or two and a game of five-cent ante, make a crime meet for the taint of felony and two years in the penitentiary. But they have not so written it; neither will we.

IV. Defendant contends that the following instruction asked by him upon the trial and refused by the court, should have been given, to-wit:

“The court instructs the jury that the showing by the State of one or more acts of. the defendant in connection with the crap game mentioned in the testimony, tending to show that the defendant was at the place and time mentioned in the testimony the keeper of said crap table and pair of dice is not sufficient to justify you in returning a verdict of guilty, unless you believe beyond a reasonable doubt from all the facts and circumstances in evidence in the case that the defendant was at the place and time mentioned in the testimony the keeper of said crap table and pair of dice.”

The refusal of this instruction was proper. In effect it deals with circumstantial evidence, but includes only “one or more acts of the defendant” in order to constitute the circumstances upon which defendant might be found by the jury to have been the keeper of the table. The jury are the judges of the weight and credibility of the evidence, whenever there is upon a matter in issue any substantial evidence. They had the right to weigh not only one or two acts of defendant, but all and every of his acts as shown by the evidence in the case. Section 4761 permits a prima-facie presumption that he who from the evidence, appears to be the master, or acts as master, or has for the time the care or management of the device, is the keeper thereof. Manifestly, this presumption allowed by the statute must usually and for the most part, be based upon circumstances and circumstantial evidence. and the State is entitled to have the benefit of all of the circumstances. It is for the witnesses to state the circumstances, and for the jury to say from all of them — whether they be few or many — whether defendant appears therefrom to have been the keeper or acting as the keeper of the device.

Other matters are complained of hut these things are not likely to arise upon the next trial, if such shall he had.

For the errors noted, the case will he reversed and remanded.

Walker, P. J., and Brown, J., concur.