author: FARIS, J.

text:
    THE STATE v. THEODORE H. YAGER, Appellant.
    Division Two,
    May 20, 1913.
    1. CHANGE OF VENUE: Application: Proper Averments. An application for a change of venue, charging that the inhabitants of the county are prejudiced against the applicant, and that the judge is prejudiced, follows the precise language of the statute, arid contains all necessary averments.
    2. -: Prejudice of Inhabitants: No Counter Affidavit. It is not necessary to support with testimony an application for a change of venue charging prejudice on the part of the inhabitants unless the adverse party has filed a counter affidavit controverting the existence of the prejudice. There being no such counter affidavit, no proof is necessary except verification of the application.
    3. -: To Sheriff: In Suit to Remove a Sheriff from Office. The statute governing a change of venue in civil cases (Sec. 1927, R. S. 1909) is applicable to a suit, brought by the prosecuting attorney in the circuit court, to remove a shériff from office for misconduct in office and neglect of official duty. The statute (Sec. 10209, R. S. 1909) makes such a proceeding a civil action. The sheriff, in such case, is entitled to a change of venue the same as a defendant in other civil cases.
    4. '-: -: -: Temporary Ouster. 'file statutory provision that, upon ouster of a sheriff being adjudged and an appeal taken, pending such an appeal the defendant shall be suspended from office and a temporary officer appointed by the trial court, does not so far make the proceeding to remove a sheriff from office for misconduct and neglect of duty a special proceeding as to preclude the granting to him of a change of venue, where proper and timely application has been made therefor by him.
    6. SHERIFF: Absent from County: Neglect of Duty. It is the duty of the sheriff to be and remain in attendance upon the circuit court of his county when the same is in session, unless he is prevented therefrom by other pressing official duties, or by illness, or by some other lawful reason; and the fact that no official duty pertaining to his office was in point of fact neglected during his absence, is not a sufficient, excuse; but his absence, unless upon pressing official duty or other lawful excuse, is neglect of official duty. The fact that during his absence his deputies properly performed the duties of his office will not excuse his absence.
    6. -; charged with Crime: Evidence: Information. An information charging the sheriff with assault and battery upon his wife should not be admitted in evidence in his trial for neglect of duty and for absenting himself from the State to avoid arrest, where there was no conviction or plea of guilty under such information.
    7. -; Dereliction in Office: Removal. Proof that defendant, as sheriff, at night took a prisoner from jail to another town in the' county, permitted him to drink intoxicating liquors, and himself became intoxicated; that he pleaded guilty before a justice of the peace to informations charging him .with beating his wife and disturbing the peace of another woman; that on a subsequent date when an information had been filed in the circuit court charging him with assault and battery upon his wife and a warrant for his arrest had, to his knowledge, been placed in the hands of the coroner, he left the county and State to avoid arrest; that during two days of the circuit court he was absent from the State without lawful excuse, and was in fact a refugee from justice, is sufficient to remove him from office, upon proper complaint charging such 'things.

      Appeal from. Pike Circuit Court. — Hon. B. H. Dyer, Judge.
    Reversed and remanded.

      Frank J. Duvall and Hostetler £ Haley for appellant.
    (1) The court erred in refusing’ defendant’s application for a change of venue. This is a civil proceeding within the meaning of the change of venue law. R. S. 1909, secs. 1927-31, 10209; State ex rel. v. Riley, 203 Mo. 175. (2) The court erred in admitting in evidence over objections of defendant the docket entries of the justice of the peace court showing defendant’s plea of guilty and conviction on the charge of assaulting his wife and disturbance of the peace of Blanche Chilton and also erred in admitting in evidence over defendant’s objection the information filed by the prosecuting attorney in the circuit court charging defendant with two assaults on his wife. As to the two pleas of guilty and defendant’s conviction based thereon in the justice of the peace court, they may. have involved some moral delinquencies and revealed some defects of character but in no manner did they concern his official duties as sheriff. A sheriff is as liable to have trouble with his wife as any other official or as any private citizen, and the fact that he does have trouble with his spouse constitutes no ground for ousting him from office. (3) The court erred in excluding testimony proffered on behalf of defendant that no official business was neglected during his absence, and also erred in refusing defendant’s instruction 7, which embodied the same issue. (!) Instruction 1 is too narrow. Under it the jury was in effect told that unless Yager was personally present and in attendance upon the circuit court, then he was violating his official duty. Such is not the law. The sheriff can be in attendance upon courts of record while in session through his deputies and thus fulfill every requirement of his official duty. R. S. 1909, secs. 11209,11212. The power of the deputy sheriff to perform the duties of the office is coextensive with that of the sheriff himself. State ex rel. v. Bus, 135 Mo. 325.

      John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
    (1) The application asks the change on two grounds, first, because inhabitants of Pike county are prejudiced against the applicant; and, second, “because the judge of this court, the Honorable B. H. Dyer, is prejudiced.” Sec. 1927, R. S. 1909, gives the grounds upon which a party by proper application may procure a change of venue. Section 1929 provides how the application shall be made. Section 1931 provides that if the removal is asked upon the ground of objections to the inhabitants of a county, then on that point it becomes necessary for the applicant to show that prejudice exists. In this case the appellant did not attempt to show any prejudice whatever on the part of the inhabitants of Pike county against him. Therefore the court properly overruled the application so far as this point is concerned. (2) The second point is not sufficient to present a question of prejudice on the part of the court against the defendant. It does not allege the court is prejudiced against the defendant, or that the defendant cannot have a fair and impartial trial before the court on this matter. It fails utterly to state a. ground that would entitle the defendant to a change of venue. What has been said as to the sufficiency of the second ground applies with equal, force t'6 the first ground. The application was wholly insufficient to warrant the court in granting a change of venue. (3) Where a trial court decides a question and assigns reasons for so deciding it, the reasons assigned by the trial conrt may be erroneous-, but if the judgment itself was proper, then the. judgment will be affirmed, notwithstanding the fact, that the reasons assigned by the trial conrt were erroneous. -The only question in such case is, “Was the decision and judgment right?” If so, it makes no difference as to the reasons of the trial court in rendering such judgment'. (4) We also beg to call the court’s attention to the requirements of Sec. 1929, R S. 1909, which provide that applications for changes of venue must be made before the answer is filed, and if not so made, the application must be made as soon as practicable after the defendant acquires such information and -knowledge, and in no case later than the first day of the next term of court thereafter. It will be noticed in this case that'the answer was filed at the July term of said court, 1912; that this term was adjourned until September, 1912. The application for change of venue was filed at the adjourned July term, which was held in September. For this reason it clearly appears that the application was not made in proper time, nor within the time required by this section, and no proper showing was made for such failure. (5) Error is. alleged in that the court admitted in evidence docket entries of the pleas of guilty and conviction of the charges of assaulting appellant’s wife ■ and disturbing the ■peace of one Blanche Chilton, and also the informa- • tion filed by the prosecuting attorney charging defendant with two assaults upon his wife. A sheriff in this State is a peace officer (Sec. 11210, R. S. 1909), and also as other officers of this State, is required, upon qualifying as such officer, to take the required” oath to support the Constitution of the United States, the Con- ' stitution of Missouri, and to demean himself faithfully in office. A sheriff is not demeaning himself faithfully when, as such peace officer, he violates the law that his office is created to enforce. When the appellant pleaded gfiilty to the assaults in question there was an admission of violation of the law of this State on his part. As an officer a sheriff is in duty honnd to obey the laws which he himself is to enforce, and therefore it is onr contention that nnder Sec. 10204, R. S. 1909, the appellant knowingly failed to perform his official duty as to keeping and to the execution and enforcement of the criminal laws of this State.

      T. B. McGinnis also for the State.
    (1) Appellant’s only serious objection to the action of the trial court, is found in the trial court’s refusal to grant appellant a change of venue. The only law authorizing such proceedings is found in article 2, chapter 90, R. S. 1909. This comprises all the law under which this, or any other action in removing a public official from office, may he had, and must of necessity he a law in its entirety and wholly of itself. Every right that either party in such proceeding has should he found and is found within this article and chapter. Appellant seems to rely in his contention in this matter upon Sec. 10209, R. S. 1909, in which he finds the following language: “All actions and proceedings under this article .shall be in the nature of .civil action and tried as such.” Respondent has no objection to that as being a governing rule of action by the trial court, hut appellant undertakes to dig out of that sentence a right which is not accorded under the article and chapter aforesaid, under which these proceedings were had. This law, upon which appellant leans with seeming confidence, is only directory, for trial purposes, solely. If it were mandatory and such actions were to he treated as civil proceedings in their . entirety, the Legislature certainly would not have'taken upon itself, in section 10210 .to have accorded the right of appeal, as he would have had that right under the . provisions .governing civil actions. Under the section cited the defendant golely is accorded the right of ,appeal and the plaintiff is given no such right. This one act of the Legislature is sufficient within itself to show that this article and- chapter must be treated as a law within itself and as it is not provided that the defendant has the right of change of venue, of necessity he must be denied same. This will be seen by further provisions of this article and chapter. (2) Under section 10209 a vacancy created in such cases must be filled by the general law for filling vacancies in other cases, but where a trial is had and an appeal granted the defendant, then this power of an appointment to fill said vacancy is vested in the trial court. Now, if it were the law that this defendant is entitled to a change of venue and this change of venue is granted, upon conviction of the defendant, it becomes the immediate duty of the trial court to make such appointment and the whole act is that of a court appointing an officer under the same. He would not at that time be holding court in the county where such appointee is presumed under the law to hold his office and would therefore have no authority under the law to make such an appointment. (3) As a further evidence of the intent and purposes and the restrictions of this chapter and article we call the attention of this court to the fact that no appeal bond is required of the defendant. This within itself shows that the citation used bv the appellant, found in section 10209, R. S. 1909, is only to be used as directory in the trial proceedings.
   FARIS, J.

This is' a proceeding brought by the prosecuting attorney of Pike county against the defendant, as sheriff of said county, to remove the defendant from office, pursuant to the provisions of sections 10204 and 10205, Revised Statutes 1909. Upon a trial had before a jury, defendant was found guilty as charged and judgment of'ouster from office was duly entered by the circuit court of Pike county. From this judgment defendant appeals.

This cáse was set down for trial at the July term, 1912, of the circuit court of Pike county, at which time defendant appeared and filed his answer admitting that he was the duly elected, commissioned, qualified and acting sheriff of Pike county, and had been such since the 1st day of January, 1909; answering further he denied all other facts contained in the complaint. 'The case was not tried at the regular term, but for some reason, not material here, it was passed to an adjourned term of said circuit court, which adjourned term began sometime in the month of September, 1912. The trial of defendant was had on the 9th day of September, 1912. On the 5th day of September, 1912, defendant filed his application for a change of venue in this cause, which application was duly verified and, caption omitted, is as follows:

“Now comes Theodore H. Yager, defendant in the above entitled cause and asks the court to award a change of venue in said cause for the following reasons, to-wit:
“First: Because the inhabitants of Pike county, Missouri, are prejudiced against this applicant, the defendant in this cause.
“Second: Because the judge of this court, the Honorable B. H. Dyer, is prejudiced.
“Defendant says that information and knowledge of the existence of the above mentioned causes for a change of venue first came to him after the adjournment of this court at its July term, 1912, and between the date of the last adjournment of said July term, of this court, and September 9, 1912.
“Defendant further states that he has given reasonable notice to the attorney of record for the plaintiff in this cause and he further states that he cannot have a fair and impartial trial of said cause in this forum on account of the causes herein alleged.
“T. H. Yager.”

This application for a change of venue was overruled by the court upon the theory that “this is not a civil proceeding within the meaning of the' change of venue law and that defendant is not entitled to a change of venue under the act under which this proceeding is brought.” To the action of the court in overruling .his application for a change of venue defendant duly saved his exceptions. No point being made as to extraneous matters not appearing in the application itself and in the reasons given for overruling the same, it is unnecessary to refer to them here, further than to say that all other matters entitling defendant to a change of venue appear from the record; and if he was not so entitled, the reasons therefor appear from applying the law to what is above set out.

The complaint on which defendant was prosecuted, .after charging his election as sheriff and his qualification as such, which defendant duly admitted by answer, proceeded to charge official derelictions against him as follows:

“Complainant charges that the said Theodore H. .Yager, as sheriff of said county, has been guilty of misconduct in office and should be removed therefrom for reasons hereinafter set forth, viz.: That the said Theodore H. Yager, as sheriff of said county, has been guilty of wilful violations of his official duties in said office of sheriff in this, to-wit: That on or about the 3d day of April, 1911, there was confined in the jail of Pike county a prisoner by the name of Jesse Shuck, who had been sentenced by the circuit court of said county of the 27th day of February, 1911, to serve a sentence of sixty days’ imprisonment in said jail for carrying concealed weapons, and who on said 27th day of February, 1911, was committed to said jail to serve said sentence; that on or about the 3d day of April, 1911, and before the term of imprisonment of said prisoner had- expired, the defendant at night took the said Jesse Shuck out of said jail and drove with him to the city of Louisiana, Missouri, and then and there in said city did permit the said Jesse Shuck to drink intoxicating liquors, whereby, he, the said Jesse Shuck, became drunk from the effects thereof and was locked up in the jail of said city, at which time the defendant was drunk from the effects of and under the influence of intoxicating liquors, at which time the defendant took with him the keys to said jail, which made it impossible to admit any prisoner that may have been committed to said jail or to look after the wants of prisoners who were then and there confined in said jail and it became necessary for W. P. Burke, the deputy sheriff, to go to the city of Louisiana to get the keys to said jail from the defendant.
“That as sheriff of said county it was the duty of the defendant to preserve the peace of the citizens of said county and to protect its citizens from harm, and that the defendant did in Cuivre township, in Pike county, Missouri, on the 9th day of June, 1911, disturb the peace of one Blanche Chilton and did also on said date in said township, county and State, strike, beat and wound his wife, Lizzie Yager; that on the 10th day of June, 1911, two informations were filed by the prosecuting attorney of said county before E. G-. Omohundro, a justice of the peace within and for Cuivre township, in said county and State, one of which said informations charged the defendant with disturbing the peace of the said Blanche Chilton on said date and the other information charged the defendant with striking, beating and wounding his said wife, Lizzie Yager, on said date, and that the defendant on the 12th day of June, 1911, did plead guilty before the said justice of the peace to the said offenses charged in said information, which said acts on the part of the defendant were unlawfully and wilfully done and constituted wilful violations of his official duties as sheriff of said county.
“Complainant further charges that the said Theodore H. Yager, as sheriff of said county, has been guilty of wilful neglect of his official duties in said office of sheriff and has also failed personally to devote his time to the performance of the duties of said office of sheriff, in this, to-wit: that .the defendant did in said county and State on the 12th day of June, 1911, strike, beat, and wound his wife, Lizzie Yager; that an information on the 13th day of June, 1911, was filed by the prosecuting attorney of said county in the office of the clerk of the circuit court of said county, charging the defendant with assaulting and beating his said wife on the 12th day of June, 1911, whereupon a warrant for the arrest of the defendant was issued by the clerk of said court and delivered to C. L. Moore, coroner of said county; that the defendant, knowing that a warrant for his arrest on said charge had been issued and with the intention and for the purpose of avoiding arrest under said warrant, did escape on said 13th day of June, 1911, before the said coroner could serve said warrant on him, and he could not be found by said coroner in said county from the time of his said escape until the 16th day of June, 1911,, at which said time he was arrested by said coroner under said warrant. That the defendant at the time of his escape and for the purpose of avoiding arrest under said warrant left the county of Pike and the State of Missouri, and went to Quincy, Illinois, and other places to this complainant unknown, in the State of Illinois, where he remained on the 14th and 15th days of June, 1911, a fugitive from justice.
“That the regular June term, 1911, of the circuit court of Pike county, Missouri, was in session on the 14th day of June, 191Í, and had been since the 12th day of June,, 1911, at which time said court convened, and that the defendant, avoiding arrest under said warrant, remained away and was not in attendance upon said court on said 14th day of June, 1911, to perform such official duties as he is required by law to perform when said court is in session, and further to perform such official duties as he may have been required and called upon to perform, relative to serving the process of and enforcing the rules and orders of said court and 'the enforcement of the criminal laws of the State. Complainant charges and avers that it was the duty of the defendant as sheriff of said county to attend upon said court on said.14th day of June, 1911, during said June term, 1911, and on each and every day of said term of said court, which said acts on the part of the defendant were unlawfully and wilfully done by the defendant and constituted a failure on the part of the defendant, as sheriff of said county, to personally devote his .time to the performance of the duties of said office of sheriff and also constituted a wilful neglect of his official duties in said office of sheriff of said county; against the peace and dignity of the State. ’ ’

We need not go into the facts further than to say that the testimony adduced .on the part of the State tended to prove each and every of the charges contained in the foregoing complaint.

Upon the trial objection was made by defendant to the offering of a certain information which had been filed against defendant by the prosecuting attorney. This information charged defendant in two counts with assault-and battery upon Lizzie Yager, wife of defendant. It does not clearly appear what became of the prosecution in which the information complained of was filed, but it does appear that neither a plea of guilty nor a conviction of any criminal offense was had under it.

Defendant complains further of certain instructions given on the part of the plaintiff and of certain instructions refused on the part of defendant, to which reference more at length will be made in the opinion which follows.

I. It is strenuously urged by defendant that the court erred in refusing to grant the application of defendant for a change of venue. It is contended by the State that defendant’s application- was properly refused because it is not in correct legal and statutory form. As to the first reason urged for sueh change we may say that this application, as will be seen upon an examination thereof, follows the precise language of the statute, which statute is as follows:

“Sec. 1927. A change of venue may be awarded in any civil suit to any court of record, for any of the following causes: First, that the judge is interested or prejudiced, or is related to either party, or has been of counsel in the cause; second, that the opposite party has an undue influence over the mind of the judge; third, that the inhabitants of the county are prejudiced against the applicant; fourth, that the opposite party has an undue' influence over the inhabitants of the county; but in no case shall more than one change be granted either party.”

It is contended further that as to the second ground, that of bias and prejudice on the part of the inhabitants of the county, testimony should have been offered by defendant. A reference to the section of our statute which provides some of the details of the procedure for a change of venue on the ground of the prejudice of the inhabitants, discloses that no proof is required nor is any other showing but verification-necessary, except where the adverse party shall have filed a counter affidavit controverting the allegation of prejudice existing among the inhabitants of the county. No such affidavit was filed in this case; therefore proof was not necessary on the part of defendant. [Sec. 1931, E. S. 1909.] In the briefs filed here by the State, represented by the Attorney-General and the prosecuting attorney of Pibe county respectively, some slight contradictions appear; for example, the prose-exiting attorney contends that in this sort of proceeding no chang’e of venue can he taken, and that upon-this ground the action of the court below in refusing to-grant the change was proper; while the State as represented by the Attorney-General contends that the application was properly refused because of the lack therein of proper statutory averments.

We have set out in full the application and have set out also in full the statute prescribing the contents of an application for a change of venue, and upon comparing the same we are constrained to hold that upon this latter objection the point made by the State is not well taken.

Turning to the other objection, that this is not such a case as contemplates the granting of a change of venue, we find that the statute which prescribes some at least of the procedure required to be followed in actions under this article to remove derelict officers, provides that “all actions and proceedings under this article shall be in the nature of civil actions, and tried as sxich.” [Sec. 10209, E. S. 1909.] We thus observe that the Legislature itself has seen fit, for reasons no doubt sufficient to the lawmakers, to prescribe specifically the nature of this proceeding, and that they have denominated it in express language a “civil action Turning to the change of venue statute, which we have set out in full above herein, we note that the first clause' therein provides: “A change of venue may be award ed in any civil suit to any court of record, for any of’ the following causes.” Even if this were a criminal suit, no reason can be seen, present a proper application, as we concede there was not here, why a change of venue would not be granted, so far as the right to such change is concerned, considered apart from the manner of obtaining the same. But since this is a civil action we need not pursue this inquiry. If the term “civil action” is equivalent to the term “civil suit,” then we see no reason why the defendant was not, upon his application, entitled to a change of venue. A similar question in a special proceeding has been heretofore ably considered by this court in the case of State ex rel. v. Riley, 203 Mo. 175. In that case the question of whether “civil action” is equivalent in meaning to “civil suit” is fully considered, and we need not go into it here.

It is no argument, as urged, to say that a change of venue is not allowable in a proceeding such as this on account of the statutory provision that upon ouster being adjudged, and an appeal taken, pending such appeal the defendant shall be suspended from office and a temporary successor appointed by the trial court. If the Legislature had the authority to provide that the circuit judge of a given county wherein a derelict officer resided could appoint the temporary successor thereto, then we see no reason why it did not also have the authority to enact that the judge of any other circuit in the State had the same authority. But upon this point we do not pass; nor need we pass; but merely raise it arguendo; as also the question of whether the provision of section 10210, conferring such power of temporary appointment upon the trial court, does not'in itself violate section 11 of article 9 of the Constitution of Missouri. We do hold, however, that this provision of itself alone does not so far make this a special proceeding as to preclude the granting of a change of venue, where proper and timely application is made by defendant. We conclude that the court erred in refusing to grant the change of venue to defendant as prayed for by him.

II. It is strenuously urged that the court erred in refusing to give instruction numbered 7 offered by defendant. This instruction is as follows:

“The court instructs the jury that even though you find from the evidence that defendant was absent for two days during the June term, 1911, of the circuit court of Pike county, Missouri, yet if you further find that no official duty pertaining’ to the office of sheriff was in point of fact neglected during*such absence, then you cannot find against defendant on account of neglect of official duties.”

The court gave for the State upon the trial an instruction presenting the converse of the views set out in the above instruction numbered 7. To this action of the court defendant vehemently objected, The two matters may well be considered together; and so considering them, we feel constrained to hold that there was no error in 'the court’s, action in refusing to give the instruction requested by defendant as set out above; nor was there error in giving to the jury affirmatively the converse of the idea embodied in instruction numbered 7. The defendant was the sheriff of Pike county. It was his duty under the law to be and remain in attendance upon the circuit court of his county when the same was in session (Sec. 11212,' R. S. 1909), unless by other pressing official duties, or by illness, or some other lawful reason he was prevented therefrom. In other words, defendant had no right wilfully, without cause, to absent himself from his county and State, as the record shows that he did, during the two days mentioned in the instruction complained of in this case. If he had the right to so absent himself for two-days, without any excuse whatever, and wilfully, as he did, then he had the right to absent himself for two months or two years, and it is no excuse that during his absence his deputies may have performed as well, or better than he, the duties made incumbent upon him by law. Especially upon the facts in this case was this instruction properly refused and the converse thereof properly given. This is so for the reason that the proof shows that the absence of the sheriff from his attendance on the court was due to the fact that he had fled to a foreign State with the intention and solely for the purpose of avoiding arrest upon a' warrant for a criminal offense, to-wit, for assault and battery, which warrant was, as he well knew, in the-hands of the coroner of Pike county for service on him. What is here said will dispose of the exceptions-taken by defendant to the refusal of the court to permit him to show that during his absence certain deputy sheriffs properly performed the duties of his office. As we have said, it was no excuse for his dereliction that certain deputies appointed by him may have done the work for which he was elected. There are certain ele-ments of personal selection and personal responsibility imputed as dominating the minds of the. voters in the election of officers who shall perform the statutory duties in the several counties. To take the view of defendant would be tantamount to saying that the selection of the voters is transferable and delegable on the part and at the unrestricted will of the elected, a thing which the Constitution itself specifically negatives, by providing generally that officers shall devote their time personally to the duties of the several offices to which they have been elected. [Constitution of 1875, art. 2, sec. 18.] We must therefore rule these objections and all of them against defendant.

III. The contention is made that the court erred in permitting the State to offer over the objections’ and exceptions of defendant a certain information, filed by the prosecuting attorney before a justice of the peace, which information charged defendant with the commission of a misdemeanor, to-wit, assault and battery. If the case in which such information was filed had finally resulted in a conviction, or in a plea of guilty, some excuse, as for example, as tending to show that the conviction was regularly had, or that the plea of guilty was based upon formal statutory charges, properly preferred, might he urged for this action; hut as we read the record no conviction was had upon the charge contained in the information to which these objections were urged. What became of this charge is not clearly shown from the record, further than that it was not prosecuted to a finality. Upon what theory the offering was made by the State and upon what theory the information was admitted by the court we are unable at this distance to understand. We are of the opinion that the court erred in permitting this information to be offered.

IY. With the contention made by defendant that the proof was not sufficient to support his conviction and to sustain the judgment of removal from office, we do not agree. There was practically no denial of the charges set out in the complaint. The defense was almost an admission of the truth thereof, and the only excuse offered therefor may be gathered from the ingenuous argument of defendant’s counsel that “by reason of partial intoxication he may not have been in a condition himself to personally perform the duties of his office,” and that he was “weak” and not free “from moral delinquencies and obliquities.” Unfortunately for this contention, mayhap fortunately for the public, .the statutes in question are directed against the holding of office on the part of persons afflicted by the “weakness, moral delinquencies and obliquities,” so frankly conceded by counsel for defendant. We must therefore rule this contention against defendant and hold that there was ample testimony upon which to predicate the finding of the jury and the judgment of the court.

It results, however, that for the errors above noted, this case must be reversed and remanded to be proceeded with, if the State shall be so advised, in accordance with the views herein expressed; and it is so ordered.

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


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    THE STATE v. IRVIN LEONARD, Appellant.
    Division Two,
    May 20, 1913.
    1. APPEAL: Governed by Statute. The right to an appeal from a judgment of conviction in a court of general common law jurisdiction did not exist at common law, hut is purely statutory, and the Legislature may grant, restrict or withdraw the right as its discretion prompts, in either criminal or civil cases.
    2. -: Not Timely Perfected: Mandatory Statute. The statute (Sec. 5313, R. S. 1909) providing that in any felony case other than where the penalty is death, the appeal shall be perfected within twelve months from the time it was granted, and that upon appellant’s failure to so perfect it, the appellate court, upon motion, shall dismiss such appeal, unless the appellant shall show good cause for not having sooner perfected it, is mandatory in its terms, and the court is limited in its enforcement to a dismissal unless the appellant show good cause for the delay beyond the twelve months.
    3. --: -: Section 5312 Not Applicable. Section 5312, Revised Statutes 1909, dispensing with assignments of error, and requiring the Supreme Court to proceed upon the return of an appeal or writ of error in a criminal case to speedily hear and determine the same upon the record, has no application when the appeal has not, without excuse, been perfected within twelve months after it was granted.
    4. -: -: This Case. Where the appellant was convicted in the circuit court of setting up and keeping a gambling device, and an appeal was allowed to the Supreme Court on December 9, 1910, and the transcript was filed with the clerk on March 6, 1913, the appeal was not perfected within one year after it was granted; and a motion to dismiss, after proper and timely notice thereof to appellant, and no showing is made by him why it was not sooner perfected, is sustained.
    Appeal from St. Louis City Circuit Court. — Hon. George G. Hitchcock, Judge.
    Appeal dismissed.

      Henry M. Walsh for appellant.

      John T. Barker, Attorney-General, and Ernest A. Green, Assistant Attorney-General, for the State.
    On December 9, 1910', defendant filed his affidavit for and was duly granted an appeal to this court. He did not appeal as a poor person, but entered into an appeal bond and has been ever since continuously out on bond. Later, on February 2,1911, and during the December term, 1910, of the circuit court of-the city of St. Louis, defendant was granted time in which to file bis bill of exceptions. This time was afterwards extended by various orders of the court until the 26th day of June, 1911. The bill of exceptions was finally filed on • June 19,1911. On March 6,1913, more than two years after “the time the appeal was granted,” and almost two years after the filing of the bill of exceptions herein, appellant perfected his appeal by filing a transcript of the record in this ease with the clerk of this court. Owing to the great lapse of time in perfecting this appeal and the plain mandates of the statute, Sec. 5313, E. S. 1909', we feel that justice can only be conserved and the policy of the law enforced by a dismissal of this appeal. State v. Pieski, 248 Mo. 715.
   WALKER, J.

This case is before us on a motion filed by the Attorney-General to dismiss the appeal. The defendant was convicted in the circuit court of the city of St. Louis for setting up and keeping a gambling. device called a “crap game,” and his punishment assessed at six months’ imprisonment in the city workhouse. An appeal was allowed to this court on the 9th day of December, 1910. Defendant gave bond, and a stay was granted. The bill of exceptions was, after several extensions of time therefor, filed in the trial court, June 19, 1911. Nothing further was done in the matter until March 6, 1913, when defendant filed a transcript with the clerk of this court, thus perfecting the appeal. The motion of the Attorney-General is filed, under the- authority of the statute (Sec. 5313, R. S. 1900) which provides that in any felony other than where the sentence is death, the appeal shall be perfected within twelve months from the time the same was granted, and upon failure so to do, the court upon motion shall dismiss such appeal unless the defendant shall show good cause for not having .sooner perfected same.

The Attorney-General, after proper and timely notice to defendant, filed the motion to dismiss, March 22, 1913, and it was passed to he heard with the cause. At the present April term (April 10, 1913) the cause was called for hearing and was submitted on the motion to dismiss by the State, no brief having been filed or other appearance entered by the defendant. The statute (Sec. 5313, supra) is mandatory in its terms, and the court is limited in its enforcement only upon the showing of good cause by the defendant for not having perfected his appeal within the time prescribed.

The statute (Sec. 5312, R. S. 1909) dispensing with assignments of error and requiring this court to proceed upon the return of an appeal or writ of error in a criminal case and to speedily hear and determine the same upon the record,-has no application when the appeal is not perfected within twelve months from the time of the granting of same, except, of course, where a defendant shows good cause for delay beyond that time.

No right of appeal existed at common law; being purely of statutory creation, the Legislature may grant, withdraw or restrict the right as its discretion prompts in criminal as well as in civil cases. In order that a party may avail himself of the right to an appeal, he must conform to the requirements of the statute creating the right.

This the defendant Las .not done. Mo.re than two years had elapsed after the granting of his appeal before he perfected same by filing the transcript with the clerk of this court. No effort has been made to account for this unusual delay, and we are of the opinion that the motion to dismiss the appeal should be sustained, and it is so ordered.

Brown, P. J., and Faris, J., concur.


author: WILLIAMS, C.

text:
    THE STATE v. McL. DELANEY, Appellant.
    Division Two,
    May 20, 1913.
    1. BILL OF EXCEPTIONS: Not Reviewable When Motion for New Trial not in Record. Where the bill of exceptions shows a direction to the clerk to copy the motion for a new trial, but the motion is copied neither in that part of the ’record designated as the bill of exceptions nor in that portion of the transcript known as the record proper, there is nothing before the Supreme Court for review except the record proper.
    2. SWEARING JURY: Not Shown by Record. Where the record proper fails to show that the jury was sworn to try the cause, the case will be reversed and remanded.
    Appeal from Dunklin Circuit Court. — 'Hon. Charles B. Paris, Judge.
    EeVERSED AND REMANDED.

      T. R. B. Ely, J. L. Fort and Virgil McKay for appellant.

      John T. Barker, Attorney-General, and Ernest A. Green, Assistant Attorn ey7General, for the State.
   WILLIAMS, C.

Defendant was tried and convicted in the circuit court of Dunklin county upon an information charging him with the embezzlement of the stun of $1100, belonging to one Baird, which said sum defendant is alleged to have received while acting as the .agent of said Baird. The punishment was assessed at two years in the penitentiary, and defendant perfected an appeal.

I. The bill of exceptions directs the circuit Clerk to copy the motion for a new trial, but the motion is neither copied in that part of the record designated as the bill of exceptions nor in that portion .of the transcript known as the record proper. There is therefore nothing before this court for review except the record proper.

II. The record proper fails to show that the jury was sworn to try the .cause. It is well settled that the abstract of record proper must show that the jury was sworn to try the cause, and that a failure to so show will compel a reversal and remanding of the case. [State v. Mitchell, 199 Mo. 105; State v. McKinney, 221 Mo. 467; Sec. 5231, R. S. 1909.] A full discussion of the foregoing proposition will be found in the above cited cases, and therefore further discussion of the same in this opinion becomes unnecessary.

The judgment is reversed and the cause remanded for new trial.

Roy, C., concurs.

PER CURIAM. — The foregoing opinion of Williams, C., is adopted as the opinion of the court.

All the judges concur, except Faris, J., who does not sit.


text:
    THE STATE v. JOE CONCELIA, Appellant.
    Division Two,
    May 20, 1913.
    1. CONVICTION: Two Necessary Things. To justify a conviction on circumstantial evidence two things are required: first, the corpus delicti, and second, the defendant’s guilty agency in the crime. And in this case the facts show murder of an unknown man beyond doubt and for the purposes of robbery.
    2, -: Sufficiency of Evidence: Defendant’s Evasions. In this case defendant’s own evasions, denials, contradictions and false statements are the most damning indications of his guilt.
    3. -: -: Attempts to Divert Suspicion. An attempt by an accused, when search is being made for the murderer of the unknown man, to direct suspicion from himself; false statements as to his whereabouts; first a denial and afterwards an admission of incriminating facts; and a failure to account for himself at the time of the crime, are circumstances from which guilt may be deduced.
    4. -: -: Motive. In a case of murder of an unknown man, where the evidence is wholly circumstantial, the presence of motive is of paramount importance. But where defendant’s agency or participation in a crime is otherwise sufficiently established, lack of motive is of no great moment. In this case some evidence of motive is apparent, and it is that deceased and defendant were in the same room at about two o’clock at night, and deceased there paid $3.20 to its inmates in coin, and exhibited a pocket-book in which were paper bills, which were seen by others, but there is no evidence that defendant did or did not see them; they left the house together at about three o’clock, and at 5:35 deceased was found robbed and dead from a stab in the lung and a pistol shot in the brain.
    5. CIRCUMSTANTIAL EVIDENCE: Instruction: Flexible Rule. The quantum of circumstantial evidence which suffices to meet the requirements of the rule that the circumstances proved must be consistent with each other and with the hypothesis that the accused is guilty, and so inconsistent with any reasonable hypothesis of innocence as to exclude every rational hypothesis except that of guilt, differs in different cases. In the very nature of things, the formulation of a hard-and-fast fixed rule is precluded. In this case the possibility of defendant’s innocence rests upon an unreasonable hypothesis.

      6. SUFFICIENCY OF EVIDENCE: Attitude of Appellate Court. Before the Supreme Court will reverse a judgment on the ground that the verdict is not supported by the evidence, there must be either a total failure of evidence, or it must be so weak that the necessary inference is -that the verdict is the result of passion, prejudice or partiality. Where there is a bare possibility that defendant is innocent, the court will not reverse the judgment.
    7. -This Case. The evidence in this case, which is wholly circumstantial, is carefully considered, and is held sufficient to support the verdict of murder in the second degree.
    Appeal from Jackson Criminal Court. — Hon. Ralph $. Latshaw, Judge.
    Ajffirmbd.

      James Fairweather for appellant.
    The evidence is not sufficient to sustain the verdict and judgment of the court, (a) The evidence fails to establish the corpus delicti. Wills on Circum. Ev. (Ed. 1905), p.^297; State v. Francis, 199 Mo. 671; State v.. Johnson, 209 Mo. 346; State v. Jones, 106 Mo. 313; State v. Knows, 90 Mo. App. 240; State v. Baker, 144 Mo. 323; State v. White, 189 Mo. 339; State v. German, 54 Mo. 526; Talooski v. State, 82 Wis. 580; State v. Gragg, 122 N. C. 1082; Abbott v. Com., 42 S. W. (Ky.) 344; State v. Millmeier, 102 Iowa, 692; Harris v. State, 19 Am. St. 837. (b) The evidence fails utterly to establish the guilt of the defendant or to connect him in any way with the crime charged, and indicates that the jury were actuated by passion and prejudice. • State v. Francis, 199 Mo. 671; State v. Johnson, 209 Mo. 346; State v. Morney, 196 Mo. 43'; State v. Crabtree, 170 Mo. 642; State v. Nesenhener, 164 Mo. 461; State v. May, 142 Mo. 152; State v. Heusack, 189 Mo. 295; State v. Glahn, 97 Mo. 692; State v. Scott, 177 Mo. 665; State v. Bartlett, 170 Mo. 658; State v. Wickiser, 177 Mo. 674; Staité v. Tilley, 90 Ya. 99. There is not a scintilla of evidence that the defendant was with deceased after leaving him at Fifth and Grand avenne. The mere circumstance that deceased was found near where defendant had visited relatives, is not sufficient to convict.

      Jolm T. Barker, Attorney-General, and William M. Fitch, Assistant Attorney-General, for the State.
    (1) Defendant claims the court erred in not instructing the jury on all of the questions of law arising under the evidence in this case; he did not offer or request any definite instruction, and he did not suggest to the court that the court should instruct upon any specific ground on which the court had failed to instruct. The general allegation in a motion for a new trial is not sufficient to raise the question. State v. Conway, 241 Mo. 271; Sees. 5244.and 5245, E. S. 1909. The only exception to the above rule is in a case where there has been a failure to instruct the jury upon a question which goes to the fundamental rights of the defendant. State v. Conway, 241 Mo. 271; Sec. 5231, E. S. 1909. (2) "When the evidence is sufficient to support a verdict then it becomes the peculiar right of the jury to consider and pass upon: (a)’ The weight of the evidence: State v. McDowell, 214 Mo. 343; State v. Sassaman, 214 Mo. 738; State v. Devorss,. 221 .Mo. 477; State v. Shelton, 223 Mo. 141; (b) the credibility of the witnesses: State v. Wooley, 215 Mo. 687; and (c) to determine all conflicts in the evidence: State v. Sharp, 233 Mo. 295. ' If there is any evidence to support the verdict in this case, then under the various cases above mentioned this judgment must be affirmed. (3) Is the evidence sufficient to support the verdict? That is the only serious question in this case. State v. Nesenhener, 164 Mo. 461; State v. Crabtree, 170 Mo. 642; State v. Gordon, 1991 Mo. 561; State v. Francis, 199 Mo. 671; State v. King, 174 Mo. 647; State v. Mahan, 138 Mo. 112; State v. Marshall, 47 Mo, 378. (4) Before this court .will relieve on the ground that the verdict is not supported by the evidence, there must be either a total failure of evidence, or it must be so weak that the necessary inference is that the verdict is the result of passion. State v. Howell, 100 Mo. 659; State v. Orr, 64 Mo. 345; State v. Dickson, 78 Mo. 447; State v. Howell, 117 Mo. 346; State v. Lackland, 136> M'O. 32; State v. Miller, 156 Mo. 76; State v. Foley, 144 Mo. 620; State v. Tettaton, 159 Mo. 354; State v. Barrington, 198 Mo. 23. (5) In circumstantial evidence, proof'to sustain a conviction must show: First, the criminal act, the corpus delicti; second, the defendant’s guilty agency in its production. State v. Crabtree, 170 Mo. 650; State v. Jones, 106' Mo. 312; State v. Dickson, 78 Mo. 447; 3 Grreenleaf Ev., sec. 30; Wharton Crim. Ev., sec. 325; 4 Elliott Ev., sec. 2708. (6) “It is a fundamental principle of the law of circumstantial evidence that each independent fact must be proved in the same satisfactory manner as if the whole issue rested upon the proof of that fact. Com. v. Webster, 5 Cush. 285; 1 Starke Ev., 510.” State v. Crabtree, 170 Mo. 654. (7) If it appears that defendant had no motive for this murder, then that is a circumstance in favor of defendant. State v. David, 131 Mo. 397; State v. Crabtree, 170 Mo’. 651; 4 Elliott on Evidence, sec. 2719', n. 79; 12 Cyc. 149. The only motive suggested in this case is that of robbery. (8) In a criminal case, based solely on circumstantial evidence, to justify the inference of guilt, the acts and circumstances should be consistent with each other, and with the guilt of the defendant, and inconsistent with any reasonable hypothesis of the innocence of defendant. State v. Moxey, 102 Mo. 388; State v. Hendricks, 172 Mo. 654; State v. Taylor, 111 Mo. 538; 4 Elliott on Evidence, sec. 27091. Other states have announced the same rule. People v. Fitzgerald, 156 N. Y. 258 ; People v. Nelson, 85 Cal. 430; State v. Miller, 9 Houst. 564; Cavender v. State, .126 Ind. 47; State v. Johnson, 19 Iowa, 234; James v. State, 45 Miss. 579; State v. Milling, 35 S. C. 25; 3 Ency. Ev. 92, par. 2, n. 91; 3 G-reenleaf Ev., sec. 137. (a) It is also held that circumstantial evidence in a criminal case is of no value if the circumstances are consistent with the hypothesis of innocence or the hypothesis of guilt. Andrew v. State, 42 S, E. (Ga.) 476; State v. Flanagan, 26 W. Va. 116; Pogue v. State, 12 Tex., App. 283. (b) It may be a fact that a crime will be shrouded in mys'tery if a verdict of guilty is not returned; but such fact cannot justify a verdict of guilty. Schusler v. State, 29 Ind. 394; Webb v. State, 73 Miss. 456; State v. Fahey, 54 Atl. (Del.) 690. (c) It is- not sufficient that the facts create a strong suspicion against the defendant. France v. State, 68 Ark. 529; Laws v. State, 114 Ga. 10; State v. Clousser, 69 Iowa, 313; Silvey v. State, 36 S. E. (S. C.) 608; Davis v. Comm., 99 Va. 838; Leisenberg v. State, 60 Neb. 628. (d) Nor that there arises from the evidence a strong probability of defendant’s guilt. Wharton v. State, 73 Ala. 366; People v. Dick, 32 Cal. 213; Algheri v. State, 25 Miss. 584; Dreesen v. State, 38 Neb. 375.
   FARIS, J.

Defendant was charged by information in the criminal court of Jackson county with murder in the first degree, for that, as is charged, he had killed an unknown man, designated in the information as John Doe. The jury having found him guilty of murder in the second degree and having assessed his punishment at imprisonment in the penitentiary for twenty years, he prosecutes this appeal.

The facts in this case are few and simple, and upon the facts alone the case must stand or fall. On the night of March 23, 1912, at Kansas City, there was a snow of great depth, varying in that behalf, as the witnesses aver, from eighteen to twenty-four inches. On the morning following, at an early hour, an unknown man was found dead on the sidewalk in front pf 542 Campbell street, this point being near Missouri avenue, on which avenue certain flats, which play an important part in this tragedy, were located. An examination of the body revealed three wounds, two of which were in their nature mortal. One of these wounds was on his left side, seemingly from the cut of a large, sharp knife, which penetrated the lung and produced a hemorrhage from which, evidently, the man had died. One of the gunshot wounds was in the face of the unknown man, evidently penetrating the brain, and was in itself alone sufficient to cause death. Deceased was dressed roughly; his coat was of heavy duck or canvas, fleece-lined with sheep' skin; he wore felt boots over which heavy rubber overshoes were drawn. His pantaloon pockets were turned inside out and no money or evidences of identity were found on him. His condition indicated that the motive for his killing was robbery. The finding of the unknown; the manner of his death and the inability, which still pei*sists, to identify him, constituted a mystery, which induced much comment in the papers of Kansas City for a number of days. The police investigated, but for more than a week were unable to obtain any information of the man or of the manner of his death. About the 5th of April they were informed that the deceased, in company with defendant, who was locally known as “St. Louis Joe,” at about one o’clock on the night of the homicide, had! visited a house of prostitution kept by one Toll Arnold; that deceased and defendant came to this house about one o ’clock on the morning of March 24th, and that they remained therein about an hour, leaving the house together at about two o’clock. "While in this house, deceased was entertained on two different occasions by two different inmates of the place. He had bought some beer and spent twenty cents in a music box or piano; spending there altogether some $3.20. During the whole of this time defendant remained in the parlor or reception room; but was not entertained by any of the inmates and spent no money. While in the house deceased made inquiry as to where he could obtain a bed. He was offered accommodations at this house, but deeming the price quoted exorbitant he asked the keeper of the house where he could find a cheap bed, and was, among other places, directed by her to a certain livery stable where some Italians were rooming. Later, in this house he exhibited a pocket book in which, in addition to the silver money with which he paid his reckoning, there was certain paper money, the amount of which is not disclosed. The evidence does not definitely show that defendant saw this money, though the pocket book which contained it was exhibited and opened in the room in which defendant sat at the time. While in the house deceased made some inquiry as to the whereabouts ¡of one Jack Murphy, against whom he made threats, and who he said, was entertaining illicit relations with the wife of deceased and having her come to Kansas City to visit him, the said Murphy. Deceased was informed that Murphy had been, up to a month before, in the saloon business on Fifth and Grand avenue, but that he had quit this business, and his whereabouts were at the time of the inquiry unknown. So far as the record before us shows, the whereabouts of Murphy continues to rest in darkness.

Upon the information set out above reaching the police they began a search for defendant, whom they had considerable difficulty in locating, for the reason that his real name was not known to them, they being advised only of the name of “ St. Louis Joe,” by which he was known to the keeper of the bawdy house. Later he was found, and upon being questioned as to his whereabouts on the night of the homicide, told the police that he had gone to bed early on that night; that he slept over on Plolmes street at the Northern Hotel. Defendant further denied that he had ever seen the dead man, or any man dressed as the dead man was described to him as being dressed, and further denied that he had ever been with deceased. Later in the examination, by the police of defendant, on being confronted with the statements of the inmates and keeper he admitted that he had been with deceased at the house of Toll Arnold, but he stated that upon leaving this house he had directed the deceased to a hotel and had left him about the corner of Fifth and Grand avenue, going himself immediately to the Northern Hotel where he went to bed.

The testimony which is at no point as clear as it might be, and as it seems to ns as clear .as it might have been made, tends to show that defendant at the time of the homicide was living with his cousin at 825 Missouri avenue in one of a row of flats located on this street. These flats are some eight blocks from the bawdy house which deceased and defendant admittedly visited. The first one of the flats in question, which is No. 815' Missouri avenue, corners on the alley; at this corner and in the opening" of this alley, a large amount of blood was discovered on the snow, and there was evidence of a scuffle. Thence this blood trail led south along the sidewalks and close to the walls of the row of flats, in one of which defendant lived; through the hallway between 827 and 829; out the back way, and down the sidewalk to Campbell street, where deceased was found murdered. The trend of the testimony indicates that deceased was killed about three o ’clock on the morning of March 24th, since a Mrs. Phemister, who was a witness in the case, says that about the hour mentioned she heard two muffled pistol shots somewhere out in front, and that she, a moment afterward, heard some one running through the passageway between flat 827 and 829. The runner, from the sound of the foot falls, seemed to have on rubber overshoes, and was screaming ‘ ‘ Help! ” ‘ ‘ Murder! ’ ’ and calling the police.

Upon the trial defendant, who testified for himself, says that he first saw defendant about one o’clock Saturday morning; that he met him accidentally on the street and was asked by deceased to direct him to a house of-prostitution, and thereafter he went with the deceased to the house of Toll Arnold, and for this service the deceased paid him fifty cents. Defendant’s statements as to the occurrences in this house differ in no material respect from what has already been set out. Upon leaving the house at about the hour of two o ’clock, defendant says that he was asked by the women to show deceased a rooming house; that he started-with him for this purpose; that deceased expressed a desire to find one Jack Murphy, whom deceased had accused of running away with his wife. Defendant says that he endeavored to dissuade him from seeking Murphy that night and that he thereupon pointed out to him a rooming house; left him, á-ncl went to the DeMoore Hotel and went to bed.

In the signed statement made by defendant he had at first denied any knowledge whatever of deceased, and stated that he had slept on the night of the murder at the Northern Hotel; in his testimony irpon the trial he says he slept that night at the DeMoore Hotel. Upon investigation later made, it was found that he had not been at the Northern Hotel, and upon theUrial it was not shown that he had been at the DeMoore Hotel. His name was not on the register, though guests were required to register, no,r did the keeper of this hotel remember of his having been there. There was no evidence worthy of the name as to his presence at the DeMoore Hotel on the night in question.

Though the prosecution was for murder in the first degree, and the jury were instructed that they might find him guilty of this grade of offense, they did not see fit to do so, but found him guilty of murder in the second degree and fixed his punishment at twenty years ’ imprisonment in the penitentiary.

I. A number of questions are raised in the motion for a new trial and in the brief filed here, touching all of which we have carefully examined the record. The chief point of contention and the serious one in the case, is whether there was sufficient testimony to go to the jury. The motion for a new trial, it is true, is in the usual form, and without any basis being furil^g]ie(j therefor by the record, attacks alleged errors of the court in erroneously instructing the jury, and in the failure of the court to instruct the jury upon all the law in the case and in the admission of incompetent, irrelevant testimony on the part of the State.

We have carefully combed the record to ascertain what, if any, of these objections, are founded in fact upon the record. Much latitude was taken by the prosecuting attorney in eliciting testimony, but these excursions into the realms of inadmissible evidence were all made without objection or exception «on defendant’s part. When objections were made by defendant they were uniformly sustained by the court, and many times the court himself called defendant’s attention to inadmissible testimony and invited objection, and whenever the invitation was accepted, sustained the same.

We have carefully examined the instructions given by the learned trial judge and are convinced that these instructions were well and carefully drawn and safeguarded at every point the rights of defendant. The instructions given by the court on the nature and quantum of circumstantial evidence were full and fair, and are all that the defendant is, under the- law, allowed; and if a technical objection can be urged against them it might well be that they go further in cautionary limitations than defendant was entitled to have them go.

II. The chief contention and the serious question is as to the sufficiency of the evidence to sustain the conviction. Upon this contention and T^tion the defendant in his motion for a new trial has rung all of the changes. It is the only point that he urges in his brief. Shall we reverse this ease for lack of testimony to support the charge ?

It is well-settled in all jurisdictions that convictions for crime may be had upon circumstantial evidence, To justify such conviction two things are required: First, the corpus delicti, and, second, the defendant’s guilty agency in the crime. [State v. Dickson, 78 Mo. l. c. 447; State v. Francis, 199 Mo. 671.] That the unknown man was murdered there is no doubt from the physical facts; there is not even a suggestion of suicide. The direct and positive facts, coupled with the physical facts eked out by the circumstances of the case, show a murder and not a suicide beyond cavil or doubt. But the defendant’s guilty agency in the crime is the serious and troublesome question in the case. His own evasions, denials, contradictions and falsities are the most damning indications of his guilt. [Fuller v. State, 109 Ga. 809; People v. Conroy, 97 N. Y. 62; Cathcart v. Commonwealth, 37 Pa. St. 108; Boines v. State, 43 Tex. Crim. 490; People v. Durrant, 116 Cal. 179; State v. Howard, 118 Mo. 127.] Though great hue and cry is raised as to the finding of this murdered man; though the papers seem to have been full of this mystery for many days; though the man was either shot or stabbed at the corner of the flats in one of which defendant lived with his cousin; though after being wounded, inferentially unto death, he ran, as the blood trails show, through the hallway of the flat adjoining that occupied usually by the defendant; though he fell and died within a short distance of defendant’s abode, and though defendant had been with him at a house of prostitution until a short time prior to his death, the defendant, throughout all the excitement of the hue and cry, stands silent. When the defendant is arrested he makes many false statements as to his whereabouts on the night of the murder; he denies being with deceased, and he denies ever having seen deceased until confronted by the women of the bawdy house. Defendant avers tliat he was at the Northern Hotel; that he went to bed there at nine oMlock, but later contradicts himself again and admits his presence at the bawdy house with the dead man. Defendant swears at the trial that he left the bawdy house with deceased about two o ’clock; that he parted from him after showing him a rooming- house; went himself to the DeMoore Hotel and went to bed. Upon the trial no proof in corroboration of his having slept at the DeMoore Hotel is elicited. ITis signed statement says that he stayed' at the Northern Hotel, but an investigation sliows this to be false; and his own testimony upon the trial is that he was at the DeMoore Hotel, which latter statement is either shown to be false or.not shown to be true, though an effort in that behalf is made.

A survey of the uncontradicted facts and of the chronology of the tragedy brings the presence of defendant dangerously near the scene of the killing at the precise moment the same occurred. Defendant-left the bawdy house with deceased at a time indefinitely stated by the witnesses as “about two o’clock.” At “about three o’clock” thereafter at a point eight blocks away, the street cars .being stopped and the sidewalks being impeded with some two or three feet of snow, two pistol shots are heard, either on Missouri avenue or Campbell street; a person is heard traversing the passageway of 829 Missouri avenue, crying “Murder!” and a trail of blood through the snow from the point of the initial scuffle down the street, through the hall of the flat and out on Campbell street, where the dead man is found, point unmistakably to the identity of the latter with the pistol shots,, the scuffle and the blood trail. There was testimony which the jury had the right to believe, that defendant at the time of the homicide was living with his cousin in one of these flats, not many feet from where deceased was shot and stabbed, and almost adjoining the hallway through which deceased ran. The jury may well have found that defendant did room at this flat. If they did so find, then so far as' we are concerned with the law of this appeal, we must also find that defendant did live at this place. Absent the defendant’s many contradictory, false and misleading statements which we note' above, and present an initial admission when first arrested of his knowledge of deceased, and of his having been with him, we should say without any hesitation that there is no sufficient proof to go to the jury. But that these things constitute elements, or links in the chain of circumstantial evidence, all courts and all of the textwriters agree. If the accused, when search is being made, attempt to'direct suspicion from himself (Commonwealth v. Webster, 5 Cush. 295); if he make false statements as to his whereabouts; if he deny at first and afterward admit incriminating facts, elements or circumstances, all these things with many others not here present, and not necessary to set down, have been held to be circumstances from which guilt may be deduced. [State v. Hudson, 110 Iowa, 663; People v. Conroy, supra.]

The courts have said that one of the usual indicia of guilt is the failure of the accused to account for himself at the time of the crime. [State v. Crabtree, 170 Mo. l. c. 656.] Here defendant is shown to have been in the company of the dead man but a few minutes before his death, and though upon the trial he tells his whereabouts fully, he is not corroborated in any wise, but is contradicted by such evidence as is offered and by his own prior statements. Some evidence of motive is apparent from the record. Deceased had money on his person as late as two o’clock; he is found robbed and dead at 5:35 o ’clock. Defendant was in the same room .with deceased when the latter exhibited his pocket book in which there was paper money. There is no proof directly showing that deceased saw this money, nor is there proof that he did not see it. No fact preventing his seeing the money is shown by the record. He saw deceased spend, as he admits, four or five dollars; deceased liad given him fifty cents to show him a bawdy house and made inquiry of him as to a rooming’ house. In a case like this the matter of motive is necessarily of paramount importance. When a defendant’s agency'or participation in a crime is otherwise sufficiently established, lack of motive is of no great moment. [State v. David, 131 Mo. l. c. 397; State v. Crabtree, 170 Mo. l. c. 651.] But when the facts exist in a case as they occur here, if there is no motive shown, no guilt can with any sufficient legal certainty, be attributed to defendant. With almost absolute, certainty it may be said that the unknown man in the case was killed for the purpose of robbery. The facts also, when fully considered, lead to the legitimate and reasonable inference that defendant was with deceased almost up to the time at which other evidence in the ease shows him to have been murdered. From the very nature of things, the quantum of circumstantial evidence which suffices to meet the requirements of the rule that the circumstances proved must be consistent with each other and with the hypothesis that the accused is guilty, and so inconsistent with any reasonable hypothesis of innocence as to exclude every rational hypothesis except that of guilt (State v. Morney, 196 Mo. l. c. 49), differs in different cases, so as. to preclude the formulation of any fixed, hard-and-fast rule.

As a court of errors, it is not, as a rule, our duty' to pass upon the facts of a case. Where there exists upon the record, what has been rather loosely called any “substantial evidence” of the existence of a state of facts legally required to be shown, it is our duty to relegate the determination of controverted questions to the triers of fact. “The rule is, that before this .court will relieve on the ground that the verdict is not supported by the evidence, there must be either a total failure of evidence, or it must be so weak that the necessary inference is, that the verdict is the result of passion, prejudice or partiality.” [State v. Glahn, 97 Mo. 689; State v. Howell, 100 Mo. l. c. 659.]

There is a hare possibility of the defendant’s innocence, but upon the whole record a “moral certainty” of his guilt. _ The possibility of his innocence rests upon unreasonable hypotheses. Deceased may, it is true, have foregathered with the nebulous and elusive Jack Murphy, and have been killed by the latter; but, then, why the robbery perpetrated upon him? Hold-up men might have accosted him, robbed him and killed him, but why then the silence of defendant, and his varying, false and contradictory statements? If he did not, as he says, know that the man in whose company he was, had been killed, why deny, as he at first vehemently did, that he knew or had ever seen such a man as deceased, or any man dressed and described as deceased was.

Weighing the facts, as required here, in the most delicate scales of reasonable doubt, which must be a substantial doubt, such as an honest, fair and intelligent juror, dominated by a conscientious desire to see the truth, might with reason entertain from a consideration of all of the evidence, facts and circumstances in the case, we cannot say even upon the cold record, that the triers of fact erred. We are unable to even concede the lack of' the requisite quantum of evidence, or to gr'ant that there was a total failure of proof. As to passion, prejudice or partiality, there is no hint o,r suggestion upon the record, or any reason arising from the facts or deducible inferentially from the relations or standing of the persons involved. We rule this point against defendant, and since there is no other point of pith or moment in the case, we affirm the judgment.

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


text:
    THE STATE v. LEO GARDNER, Appellant.
    Division Two,
    May 20, 1913.
    1. NO BILL OF EXCEPTIONS. Where no bill of exceptions is filed, there is nothing before the court except the record proper, and if that is free from error the judgment will be affirmed.
    2. INDICTMENT: Manslaughter in Fourth Degree: Careless Driving of Automobile. An indictment charging manslaughter in the fourth degree, death having resulted from the careless driving of an automobile, is held good upon the authority of State v. Watson, 216 Mo. 424.
    Appeal from St. Louis City Circuit Court.- — Hon. Wilson A. Taylor, Judge.
    Affirmed.

      Grant Gillispie for appellant.

      Jolm T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for tlie State.
   WILLIAMS, C.

Defendant was tried and found guilty in the circuit court of the city of St. Louis, under an indictment charging manslaughter in the fourth degree in that defendant caused the instant death of one Jesse B. Williams by feloniously, carelessly, recklessly, and with culpable negligence, driving an automobile against and upon him. The punishment assessed was a fine of five hundred dollars, and defendant appealed.

Defendant failed to file any bill of exceptions, and we are therefore limited in our review to the record proper. The indictment charges the offense in the same language employed in the information set forth in the opinion in the case of State v. Watson, reported in the 216 Mo., at page 420, l. c. 424. In the Watson case the sufficiency of the information is fully discussed, and held to he in proper and sufficient form.

Other portions of the record proper are complete, showing all formal and proper requirements, and the same are free from error.

The judgment is affirmed.

Roy, C., concurs.

PER CURIAM. — The foregoing opinion of Williams, C., is adopted as the opinion of the court.

All the judges concur.