author: WOODSON, J.

text:
    KATHRYNE O’BRIEN v. ST. LOUIS TRANSIT COMPANY, Appellant.
    In Banc,
    May 13, 1908.
    1. NEGLIGENCE: Pleading: Criminally and Negligently Done: Inconsistent and Repugnant: Waiver. A petition which charges that “defendant’s conductor, whilst in charge of its car as its driver and conductor, negligently and with criminal intent” beat and shot plaintiff’s husband, as he being a passenger was about to alight from said car, charges two causes of action in the same count, one of negligence and one of assault and battery, and on demurrer or proper motion would be vulnerable to the charge of redundancy or the commingling of two causes in one count, but it is not under the statute a felo de se, and no such motion or demurrer being filed, the objection was waived, and if the evidence supports either charge, the petition will support the verdict.
    2. WITNESS: Testimony Read from Transcript: When Permissible. The transcript of the testimony of a witness who testified at a former trial of the case cannot be read in evidence, over objection, unless he is shown not to be a resident of the county. It can be read on the same conditions that a deposition can be read, one of which is that deponent is not a resident of the county. Nor will it be presumed, because the first trial took place in St. Louis and the witness testified thereat, and afterwards a change of venue was taken to St. Louis county, where the transcript of his evidence was offered to be read, that he was not a resident of St. Louis county. [VALLIANT, J., dissenting,]
    3. NEGLIGENCE: Assault of Passenger: Bringing on Difficulty. It is not the law that, if the passenger brought on the ■ difficulty which resulted in his being shot by the conductor, the plaintiff cannot under any circumstances recover.
    Appeal from St. Louis County Circuit Court. — Eon. Jno. W. McElhinney; Judge.
    Reversed and remanded.

      Boyle é Priest and George T. Priest for appellant.
    (1) Plaintiff’s petition does not state facts sufficient to constitute a cause of action. It is felo de se. Raming v. Railroad, 157 Mo. 508; White v. Railroad, 202 Mo. 562; Jordan v. Railroad', 202 Mo. 425; Beben v. Railroad, 186 Mo. 430. The wording of the statute is, “occasioned by the negligence, unskilfulness or criminal intent,” etc. Criminal intent embodies tbe idea ■ of wantonness and wilfulness. It is the intentional doing of an unlawful act without legal justification or excuse. The averments in the petition are that the act complained of was done “negligently and with criminal intent” or, in other words, wilfully and intentionally. It needs no discussion to arrive at the conclusion that an act cannot be negligently and wilfully done at one and the same time. Ruter v. Foy, 46 Iowa 132; Raming v. Railroad, 157 Mo. 508. (2) The court erred in permitting plaintiff to' read in evidence the testimony of August Fick, given at the former trial of this cause, over the objection of the defendant. Gaul v. Wanger, 191 Mo. 542; Wetherell v. Patterson, 31 Mo. 458. There is no foundation laid for the introduction of Fick’s testimony. There was no attempt on the part of plaintiff to establish or locate Mr. Pick’s residence any place. As far as the record g*oes nobody could tell where Mr. Pick was or lived, and certainly not that he was not a resident of Clayton or an inhabitant of St. Louis county. Plaintiff, in order to be entitled to introduce the testimony of Mr. Pick, must have made a showing of some one of the statutory grounds which permit the reading of testimony given at a former trial as if they were depositions in the case. (3) The court erred in submitting plaintiff’s instruction 2 to the jury. “The court instructs the jury that a man is not justified in shooting or inflicting great bodily injury upon another, except to protect his person or right from invasion or injury; that no provocation of words or blows will justify a man, except to protect himself from injury, in pursuing another, and inflicting upon him great bodily injury. And in this case, if you should believe from the evidence that the deceased, O’Brien, did use offensive language to the conductor, or that he struck the conductor before he started to leave the car, yet if you further believe from the evidence that after such words and blow, if any, said O’Brien was proceeding to leave said ear, as a passenger, and that whilst he was in the act of doing so, he was assaulted and struck by said conductor, and pursued by said eon-' ductor to the sidewalk, and shot by said conductor and so injured that he died from said injuries., then the court instructs the jury that such words or blow would not justify such assault and killing.” Plaintiff’s instruction is erroneous and exceedingly misleading and prejudicial. It leads the jury to believe that a passenger can be guilty of the grossest misconduct conceivable and still be a passenger and enjoy the privileges of a passenger. That is not the law. Y/hen a pássenger is guilty of using vile and abusive language and commits a breach of the peace, he forfeits his rights as a passenger and is entitled only to the considerations due a trespasser. McQueery v. Railroad, 117 Mo. App. 266. Further, plaintiff’s instruction informs the jury that deceased was at liberty to assault, calumniate and vilify the conductor at will and still be accorded and enjoy the full protection of the law, as if he had done nothing. Galbraith v. Fleming, 27 N. W. 581; Harrisson v. Fink, 42 Fed. 787; Sonnen v. Railroad, 102 Mo. App. 271; Ikenroth v. Railroad, 102 Mo. App. 597; Eads v. Railroad, 43 Mo. App. 536; Scott v. Railroad, 53 Hun 414; Wise v. Railroad, 91 Ky. 537; Railroad v. Wetmore, 19 Ohio St. 110; Peavy v. Railroad, 81 Ga. 485:

      A. R. Taylor for respondent.
    (1) Appellant insists that the court erred in permitting the evidence of August Fick given on the first trial of this case to be read in evidence. When this evidence was’ offered the only objection urged was that it was not shown * ‘ where the witness lives now. ’ ’ The offer was to read the evidence of August Fick, a'resident of St. Louis, given on the last trial, and preserved in the bill of exceptions. The objection concedes, we submit, that August Fick was a resident of St. Louis and only contests his present residence, thus practically conceding that he, Fick, was a resident of St. Louis — and concluding that it was incumbent upon the plaintiff to show his present residence. Now if the witness was a resident of St. Louis, it was, competent to read his evidence unless it was shown that he had changed his residence. This is the rule with reference to depositions; otherwise, if the witness changed his abode and could not be found, the evidence would be lost. Here was a witness who, present in court, gave his testimony which was preserved in the bill of exceptions, all of which is conceded by the objection. The statute, section 3149', Revised Statutes 1899, provides that such testimony thereafter may be used in the same manner and with like effect as if preserved in a deposition. This act was passed long subsequently to the decisions cited by appellant, to-wit, in 1891. Therefore, we submit: that the objection made, conceding that- the witness was a resident of the city of St. Louis, and only contesting the evidence on the ground that it was not shown where the witness “lives now” is not tenable. If the objection had intended to contest the fact that the witness was a resident of the city of St. Louis at the time he gave his testimony, it should have specifically shown that such was the objection; this the objection does not do: And it would work a hardship to allow a party to conceal or veil under an objection only that it is not shown where a witness “lives now” an intention to object that the witness was not a resident of the city at the time he gave the evidence and at the time of the killing of deceased. We think it sufficiently appears from the presence of the witness at the scene of the killing on the night of the killing that he was a resident of St. Louis. That is, this is sufficient to raise the presumption that he was such resident, and being such, and no change being shown, it is presumed he so remained. We therefore submit that the objection here urged falls within the principle decided by this court in the cases of O’Neill v. Kansas City, 178 Mo. 100; Bragg v. Railroad, 91 S. W. 531. (2) As to the other contentions for reversal, we uplift the shield of the opinion of this court in this case on former hearing of this case, and submit that it disposes of appellant’s contentions. This court there held that the conductor in this ease was, in the act causing the death of O’Brien, the appellant. That it was not a question of the scope of his authority. That he personified appellant in his act. The contract to carry safely and protect from assault, was violated by the instrumentality provided by the carrier to perform this part of the contract. O’Brien v. Railroad, 185 Mo. 268.
   WOODSON, J.

— This case was here once before, on a former appeal, and is reported in 185 Mo. 263. The pleadings are the same now as they were then; but they were not set out in that opinion; but since the sufficiency of the petition has been assailed in this appeal, we will have to give it space in this statement, which is as follows (caption and signatures omitted):

‘ ‘ The plaintiff states that the defendant is and at the times herein stated was a corporation by virtue of the law of Missouri, and owned, used and operated the railway and car herein described for the purpose of carrying passengers for hire from one point to another within the city of St. Louis as a common carrier of passengers by street railway.

“That on the 29th day of October, 1900, the defendant, by its servants in charge of its north-bound car, received as a passenger upon said car, at or near Tenth and Franklin avenue, plaintiff’s husband, Michael O ’Brien, and for a valuable consideration paid by plaintiff’s said husband to the defendant, defendant undertook and agreed with him to safely carry him to his point of destination upon,defendant’s line of railway, to-wit, Twelfth and Hebert street, and to there stop said car, and give plaintiff’s husband time and opportunity to alight in safety from said car.

“Yet the plaintiff avers that the defendant. unmindful of its said undertaking and of its duty in the premises did by its servants in charge of its said car, wholly fail to stop said car at Hebert and Twelfth street in the city of St. Louis, though requested by plaintiff’s husband to do so, but on the contrary carried plaintiff’s husband past his said destination to Thirteenth and Hebert street for the plaintiff’s husband to alight from said car, and whilst said car was so stopped at said place, and whilst plaintiff’s husband was alighting from said car at said place, defendant’s conductor in charge of its said car, whilst undertaking to serve the defendant as such conductor, wrongfully struck and beat the plaintiff’s husband upon the head and body with a pistol and wrongfully shot the plaintiff’s husband with said pistol, inflicting such injuries upon him that he died from said injuries at the city hospital of St. Louis on the 31st day of October, 1900. And the plaintiff avers that said beating of her husband, and said shooting of her husband was done by defendant’s said .conductor whilst in charge of its said car as its driver and controller, negligently and with criminal intent. That by the death of her husband, caused as aforesaid, an action has accrued to the plaintiff to sue for and recover the sum of five thousand dollars, according to the statutes in such cases provided, for which sum the plaintiff prays judgment.”

The suit was begun in the circuit court of the city of St. Louis, and a change of venue was had to the circuit court of St. Louis county. The cause was tried and resulted in a verdict for the plaintiff in the sum of $5,000, from which this defendant now appeals.

The evidence disclosed by the record is substantially the same as it was when the case was here before, and for that reason it is useless to state it here.

At the trial of the ease below, the plaintiff offered to read to the jury a transcript of the evidence of a witness, by the name of Pick, who testified at the former trial, which was preserved in the bill of exceptions. The following is what occurred upon that occasion, as shown by this record:

“Mr. Taylor: I will read the evidence of August Pick, a resident of the city of St. Louis, given at the last trial of this case.

“Mr. Kiskaddon: I object to it as incompetent. He hasn’t shown where the witness lives now.

‘ ‘ The Court : Objection overruled.

“Mr. Kiskaddon: Note our exception.

“To which action and ruling of the court, defendant, by counsel, then and there duly excepted, and at the time saved exception.”

The transcript of Mr. Fick’s testimony was then read to the jury.

At the close of all the evidence, the court instructed the jury for plaintiff and defendant in conformity to the law enunciated in the opinion delivered when the cause was here before; and refused several instructions asked by the defendant, which will be noticed hereafter.

I. . The first insistence of the appellant is, that the petition does not state facts sufficient to constitute a cause of action, for the reason that it charges “that said beating of her husband and said shooting of her husband was done by defendant’s said conductor whilst in charge of its said car as its driver and controller, negligently and with criminal intent,” etc.

The appellant contends that the two allegations, that the beatiug and shooting were “negligently” done, and that they were done with “criminal intent” are inconsistent and contradictory of each other, and for that reason cannot stand together. In other words, that each allegation kills the other, and that the petition is therefore a felo de se.

The Supreme Court of Iowa, in passing upon a similar question, in the case of Ruter v. Foy, 46 Iowa 132, used this language:

“There can be no contributory negligence except where the defendant has been guilty of negligence to which the plaintiff’s negligence could contribute. An assault and battery is not negligence. The former is intentional; the latter is unintentional. Now, the allegations being considered, state acts as being both negligent or inadvertent, and wanton or wilful at one and the same moment. This amounts to a contradiction in terms. If the act was careless or negligent, it was not wilful, and vice versa. The statements of the petition are so repugnant to each other, so heterogeneous in their make-up, that any amount of testimony brought forward to support them would necessarily be equally repugnant, and therefore amount to no support at all; one portion of the testimony would kill the other. The petition on its face is a felo de se.”

Touching this same point, this court in the case of Raming v. Railroad, 157 Mo. l. c. 508, quoted the above language of the Supreme Court of Iowa, approvingly, and held evidence which tended to prove a charge of negligence would not support an allegation of wilfully and wantonly injuiing the plaintiff.

The rule announced in the Naming case has not been followed by this court in all its strictness in the later cases. In the case of Lange v. Railroad, 208 Mo. l. c. 475, this court used this language: “Instruction numbered two given for respondent is assailed for three reasons: first, because it leaves out of view the element of wantonness and recklessness on the part of the appellant, its agents or employees, in running the car over the respondent. By this the appellant means that the issue submitted to the jury by the instruction is one of negligence, while the issue made by the pleading was one of wantonly and recklessly injuring her, which it is contended is a departure between the pleading and instruction. It may be said of this case, as was said by Judge BnACK'in the case of Owens v. Railroad, 95 Mo. l. c. 180, 8 S. W. 350, 6 Am. St. 39, that, ‘the next objection to these instructions is, that the plaintiff cannot sue for an assault, and recover for negligence in failing to stop the train. The petition does make some extravagant averments; but notwithstanding it charges an assault by the servant, it also, in terms, charges negligence in not stopping the train a reasonable time, and negligence on the part of the servant in pulling her off. The instructions cannot be said to be a departure from the petition. The petition contains all that is in the instructions, and more too, and it follows that it is not a case of declaring upon one cause of action and a recovery upon another.’ The same is true in this case. ■While there are some extravagant statements to be found in the petition about how the agents and servants unnecessarily, etc., ran over and injured the respondent, yet the charge of negligence is also found therein, full and complete, as will be seen from the following allegation.”

The same is true of the case at bar — the petition states both negligence and criminal acts, and, if there was evidence tending to prove either, then it could not be said that the petition charged one cause of action and that the evidence proved another.

But what we have said does not go to the real marrow of the point made by appellant in the case at bar, but was directed at the Raming case, which bears a semblance of authority for the contention of appellant. But returning to the real point made by appellant, that the petition does not state a cause of action.

The statute upon which this action is based is section 2864, Revised Statutes 1899, and it authorizes a recovery where the death is “occasioned by the negligence, unskillfulness or criminal intent,” etc. This statute gives the widow a cause of action where the death of her husband is ‘ occasioned by the negligence . . . . or criminal intent,” etc., of the defendant, or its agents or employees; and in pursuance of that statute she has charged not only that he was negligently killed, but that he was criminally assaulted and killed. The most that can be urged against the petition is, that it states two causes of action in one and the same count.

If the conductor negligently shot and killed O’Brien, as charged in the petition, then the statute gave his widow a cause of action against the company. If, upon the other hand, he shot him with criminal intent, it likewise gave her a cause of action, as charged. So it is thus seen that the only true objection that can be lodged against the petition is that it states a double cause of action, or, more accurately speaking, it states a single cause of action doubly, and, we might add, inconsistently, but still it states a cause of action under either clause of the statute.

For this reason the doctrine of félo de se has no application to this case, because it is operative only where one cause of action stated is destroyed by another, which shows that no cause of action exists in fact; but that is not true in this case, for the reason that the allegation that deceased was negligently shot does not alter the fact, if fact it be, that the conductor shot him with criminal intent. That being true, and as was said in the Lange and Owens cases, supra, the petition not only charged negligence but criminal intent also, which is a complete cause of action under the statute.

Now, both parties, at each trial, having ignored the former allegation and having tried the case upon the latter, necessarily treated the former as redundancy, thereby leaving the latter as the only cause of action stated in the petition.

If those two causes had been stated in separate counts in the petition, then we apprehend that it would not be contended that a good cause of action was not stated in each. If they were inconsistent, then the proper practice would have been to have filed a motion to compel plaintiff to elect upon which of the two causes of action she would go to trial.

The defendant also, had it seen proper to do so, could have demurred to the petition, because it stated two' causes of action in one count of the petition, but having done neither, and having answered over and gone to trial on the issues, it will not now be heard to complain of those defects. This court, in a very carefully-considered case, White v. Railroad, 202 Mo. l. c. 561-2, speaking through Lamm, J., used this language:

“Moreover, the ruling on the motion was right, because, in the philosophy of the science of pleading, faults in a petition are waived (barring the two cardinal ones of stating no cause of action and lack of jurisdiction) whenever in the evolution of a lawsuit the case once advances to the stage of joinder of issue on the facts as pleaded. In effect, such joinder is a challenge on the facts and on the facts alone, is a notice that defendant accepts the gage of battle and pitches the battle on the facts, and invokes the expenses, chances and machinery of a trial on such issue. When, then, defendant, as here, refused to stand on its motion to elect, filed answer, went to trial and took the chances of winning or losing on an issue of fact, it abandoned its motion to elect; for a motion to elect is of no- more dignity and potency than a motion to make more specific and certain, than a demurrer, or a motion to strike out because of departure, or because of redundant, irrelevant or frivolous matter; and, therefore, I take it, if a defendant is held (as he is) to have waived his demurrer or motion to strike out or his motion to make an allegation more specific by joining issue on the facts by answer, then, as like reason makes like law, he must, by the same token, be held to have waived his motion to elect by answering’ over, except where the allegations are so contradictory as to be self-destructive and, therefore, no cause of action is stated. ’ ’

We are, therefore, of the opinion that the petition states a cause of action, and that the imperfections before noticed were waived by answering to the merits and going to trial thereon.

II. It is next contended by appellant, that the action of the court in permitting the transcript of Pick’s testimony, given at a former trial and preserved in the bill of exceptions, to be read in evidence was error.

The admission of such evidence is governed by the provisions of section 3149, Revised Statutes 1899, which reads as follows: “Whenever any competent evidence shall have been preserved in any bill of exceptions in a cause, the same may be thereafter used in the same manner and with like effect as if such testimony had been preserved in a deposition in said cause. ’ ’

This statute does not give an unconditional right to the parties litigant to read to the jury, or to the court, evidence preserved in the hill of exceptions, hut it, in express terms, restricts that right to the same conditions upon which the depositions are admissible in evidence. That being true, we must ascertain what'the latter conditions are, and then apply them in the same manner to the hill of exceptions, when an offer is made to read therefrom. Section 2904, Revised Statutes 1899, prescribes the conditions upon which depositions are admissible in evidence. That section reads as follows:

11 Examinations or depositions taken and returned in conformity to the provisions of this chapter may be read and used as evidence in the cause in which they shall have been taken, as if the witness were present and examined in open court on the trial thereof. The facts which would authorize the reading’ of the deposition may be established by the testimony of the deposing witness or the certificate of the officer taking the same: First, if the witness resides or is gone out of the State; second, if he be dead; third, if by reason of age, sickness or bodily infirmity he be unable to or cannot safely attend court; fourth, if he resides in a county other than that in which, the trial is held, or if he be gone to a greater distance than forty miles from the place of trial without the consent, connivance or collusion of the party requiring his testimony; fifth, if he be a judge of a court of record, a practicing attorney or physician, and engaged in the discharge of his official or professional duty at the time of the trial.”

When counsel for plaintiff offered to read the testimony of Fick from the bill of exceptions, the defendant objected, because it had not been shown that he was not a resident of St. Louis county, the county to which the venue of the cause had been sent, and in which the trial was being had. This objection was, by the court, overruled, and defendant duly preserved its exception.

The section of the statute just quoted provides that the deposition of a witness may be read in evidence where “he resides in a county other than that in which the trial is held,” which, of course, negatives the right to read it when he resides in the same county where the trial is had. We have searched this record in vain for evidence showing Fick’s residence. It' is perfectly barren upon that subject; and counsel for plaintiff seems to admit there is none such, but seeks to supply that omission by having this court to presume Fick resided in the city of St. Louis, from the fact that he was there present and testified as a witness on the former trial of the cause. This, we cannot do, for the reason that it would establish a presumption that all witnesses who testify in a case reside in the county where the trial takes place.

There is no such presumption indulged in by the law; and, besides, our knowledge and common experience teaches us that there are hundreds of witnesses who testify in cases who do not reside in the county in which the trial is had; and to presume otherwise would be a most violent presumption, and with no basis upon which to- rest.

The admission of that testimony was against the letter and spirit of the statute, and was for that reason erroneous. [Gaul v. Wenger, 19 Mo. 542; Wetherell v. Patterson, 31 Mo. 458.]

III. The instructions given by the court, for both the plaintiff and defendant, correctly and fairly presented the law of the case to the jury, as declared by this court when the case was previously here.

Defendant’s refused' instructions, in effect, declared that if the jury found from the evidence that the deceased brought on the difficulty, then the plaintiff under no circumstances could recover. That is not the law, and that contention was expressly repudiated by tbis court on tbe former appeal.

Because of tbe error before mentioned, tbe judgment is reversed, and tbe cause remanded for a new trial.

All concur except Valliant, J., wbo dissents as to paragraph two.


source: Caselaw Access Project

author: BURGESS, J.

license: Public Domain

text:
    THE STATE v. F. M. MILLER, Appellant.
    Division Two,
    May 19, 1908.
    1. INFORMATION: False Pretense: Exchange of Lands: Value. The information, charging that by false pretense and representation defendant induced the prosecuting witness to exchange his city property for country lands, is not invalid because it fails to allege the value of the country tract, or because it does not allege that the country land, without the improvements falsely represented to he upon it, was not equal in value to and could not he sold for a price sufficient to cover the value of the city property.
    2. -: -: Proof of Any One Charge. "Where there are several alleged false representations set forth in the information, which amount in law to a false pretense, proof of any one or more of them is all that is necessary to sustain the information.
    3. -: -: Signature to Deed. An information which does not allege that by false pretense defendant obtained' the signature of the prosecuting witness to a deed for his property, is invalid.
    Appeal from Jackson Criminal Court. — Hon. B. J. Casteel, Special Judge.
    Reversed and remanded.

      Scott J. Miller for appellant.
    (1) Tbe information attempts to charge false and fraudulent representations in two things: First, that tbe defendant bad no title to tbe land traded to tbe prosecuting witness. Second, that the farm was located within six miles of the town of Van Burén and forty acres of said land was under cultivation; that said land was near a church and public school; that said land had on it a young and growing orchard, a living well and some of it enclosed under fence; that it had on it a two-room log house, barn and outhouses. The two allegations are not sufficient, under our law, to sustain a criminal charge, and the demurrer to the evidence should have been sustained. State v. Paul, 69 Me. 215'; State v. Bonnell, 46 Mo. 395; State v. G-ullett, 21 Mo. 455. (2) There is no allegation in the information that the Carter county land, without the improvements alleged, was not equal in value and could not have been sold for a price sufficient to have covered the value of the Kansas City property, alleged in the information to have been worth $1200. To constitute the offenses of obtaining money or property by false pretenses, four elements must exist: First, there must be an intent to defraud; second, there must be an actual fraud committed; third, false pretenses must have been used for the purpose of purporting the fraud; fourth, the fraud must be accomplished by means of the false pretenses made use of for the purpose; they must be the cause, in whole or in part, which induced the .owner to part with his property. State v. Mathews, 44 Kan. 25; Com. v. Drew, 19 Pick. 179; People v. Jordan, 66 Cal. 10, 2 Bish. Crim. Proa, par. 163; People v. Wakely, 62 Mich. 297. (3) There is no statement in the information that, by means of the false and fraudulent representations, to-wit, “that the improvements were on said land,” the said Miller obtained a deed for the property of the Freemans. Real estate cannot be obtained by word of mouth, but must be obtained by a conveyance. This being true, the information is bad. State v. Clay, 100 Mo. 579; Myer v. McC'abb, 73 Mo. 236. (4) And this is the only way it is to be charged in the information, and cannot be departed from the statutory form in the information. State v. McChesney, 90 Mo. 120; State v. Horn, 93 Mo. 190; State v. Dowd, 95 Mo. 163. (5) And the information, under our statutory criminal procedure, means just what it did at common law. The Legislature cannot change it in substance as to material averments. State v. Meyer, 99 Mo. 107. (6) This charge not being in the information, instruction 1 charging that he obtained the deed, the signature and the acknowledgment is error, as in folio-wing the information. State v. Meyer, 99 Mo. 107. (7) It is not sufficient to show, in support of a personal action for fraudulent representations, that a party made statements which he did not know to- be true and which were false. There must be fraud, intent to deceive, distinguished from mistakes. The scienter is the very gist of the action. Redpath Bros. v. Lawrence, 42 Mo. App. 101; Anstee v. Ober, 26- Mo. App. 665; Bank v. Sells, 3 Mo. App. 85; Felix v. Shirley & Co., 60 Mo. Ap-p. 621; Knootz v. Kaufmann, 31 Mo. App. 397; Arthur v. Wheeler Mfg. Co., 12 Mo-. App. 335; Nauman v. Oberle, 90 Mo-. 666; Tootle v. Lysaght, 65 Mo. App. 139; Hamlin v. Abell, 120 Mo-. 199; Dulaney v. Rogers, 64 Mo. 201. (8) The information is drawn under section 1927, Revised Statutes 1899; and under this section it should have been charged that he did feloniously and designedly by means of said pretenses and representations obtain and receive the execution, acknowledgment and delivery of the warranty deed aforesaid. State v. Flanders, 118 Mo. 232. And nowhere in the information does such an allegation appear. It is therefore faulty.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    It is conceded that the information is insufficient, and does not charge an offense. State v. Baker, 206 Mo. 643.
   BURGESS, J.

— On February 27, 1905, the prosecuting attorney of Jackson county filed an information in the criminal court of Jackson county, charging the defendant with obtaining certain real estate in Kansas City, Jackson county, Missouri, by false pretenses. At the January term, 1907, of said court, the regular judge being disqualified, Hon. B. J. Casteel, judge of the cnminal court of Buchanan county, was called in to try the case, the trial resulting in the defendant’s conviction, his punishment being assessed at three years in the penitentiary. After filing unsuccessful motions for new trial and in arrest of judgment, the defendant appealed.

, The State’s evidence tended to prove that the prosecuting witness, R. F. Freeman, was a carpenter by trade and lived with his wife in the suburbs of Kansas City, Missouri. The wife of Mr. Freeman met the defendant in a real estate office in Kansas City, and the two engaged in a conversation about the .sale of the Freeman house and lot, and Mrs. Freeman invited the defendant to come out and look at their property. She further requested the defendant to bring his wife and .come out and take supper with them the next evening. In response to that invitation the defendant and his wife went out to the Freeman home and reached there about 6:30 the next evening, meeting Mr. Freeman at the front gate as he was returning from his work. This Freeman property was reasonably worth at that time $1,250, and the Freemans desired to sell the same and move to the country. The State’s evidence further tended to prove that the defendant represented to the prosecuting witness that the defendant was the owner of a farm in Carter county, Missouri, consisting of one hundred and forty-three acres; that thirty-five acres were in cultivation, and five acres in young orchard, four years old; that there were all lands of fruit in said orchard, except pears, and that the farm had a two-room log house thereon, with a fine well of water in the rear, also a good barn, with a crib on one- end and stalls on the other; that the land was fenced, and that it had the advantage of a living spring that never went dry; that there were sixty or seventy large black walnnt .trees on the place, and that on the northwest corner there was a school house and church; that when he was asked how he knew these facts, he answered that he had been on the farm, had driven out there in a livery rig, and that he had drunk water out of the well and spring, and knew it was good; that he further said that the soil was good and the title perfect.

Mr. and Mrs. Freeman, without going to look at the Carter county place, believed the defendant’s representations in regard thereto, and agreed to exchange their Kansas City property for the same. Accordingly, deeds were executed, and Freeman and his wife went down to Carter county to see their new purchase. Arriving there, Mr. Freeman went out to look at the place, and found that it was not fenced; that there was no house, barn, well or spring thereon; that none of the land was in cultivation, or fit to cultivate, and that there was not a church or schoolhouse within three miles thereof.

The defendant’s evidence tended to show that he had purchased the Carter county farm from a man named Bradshaw, and that he (defendant) had never seen it, nor knew anything about it except in so far as he had been informed by Bradshaw. Defendant and his wife also testified that no representations were made by them, or either of them, except that they stated that Bradshaw told them there was a log house upon the place, and that it had an orchard and some cultivable land. They further denied that they represented to Freeman that the place would make him a nice home, or that they tried to deceive him in any way. Other witnesses who were in Mr. Powell’s office at the time the deeds were drawn up, testified that they heard no, statements made to Mr. Freeman in regard to the Carter county land.

Defendant makes the point that the information is invalid and insufficient for the reason that it does not allege that the Carter county land, without the alleged improvements, was not equal in value to, and could not be sold for a price sufficient to cover, the value of the Kansas City property, alleged in the information to he worth twelve hundred dollars. "We agree with the defendant that, in order to make out a case against him of obtaining property by false pretenses, there must, under section 1927, Revised Statutes 1899', be an intent to defraud; there must be a fraud committed; that false pretenses must have been resorted to to accomplish the fraud, and that by such false pretenses the owner of the property was induced to part with his property; but we are unwilling to say that because there was no evidence with respect to the value of the Carter county land, the said R. F. Freeman and Sarah A. Freeman were not defrauded. There are several alleged false representations set forth in the information, the value of the Carter county land not being one of them, and proof of any one or more of those set forth, amounting in law to a false pretense, is all that is necessary to sustain the information. [People v. Wakely, 62 Mich. 297.]

It is said for defendant that it is not alleged in the information that by means of the false and fraudulent representations, the said Miller obtained a deed to the property of the Freemans, and that the information, in the absence of such an allegation, is invalid. The information alleges that “the said Reuben F. Freeman and Sarah A. Freeman, believing the said false and fraudulent representations and pretenses, so falsely, feloniously, fraudulently and designedly made as aforesaid, by the said F. M. Miller, to he true, and relying thereon, and being deceived thereby, were then and there and thereby induced by reason thereof to sell and transfer their said property to the said F. M. Miller in exchange for the said Carter connty property, as aforesaid, and did then and there sell and transfer their said property to said F. M. Miller, in exchange for the said Carter connty property as aforesaid, by then and there’ making, executing and delivering, at the suggestion and under the direction of the said F. M. Miller, as performance on their part of the exchange proposed by the said F. M. Miller as aforesaid, to one Pocahontas Miller, the wife then and there of the said F. M. Miller, a warranty deed to their said property, which' said warranty deed is in words and figures as follows, ’ ’ and then set out in full a warranty deed, duly executed by R. F. Freeman and Sarah A. Freeman, his wife-, on the 29th day of August, 1904, by which they conveyed to Mrs. Pocahontas Miller, the wife of the defendant, the property in Kansas City, Missouri, in exchange for the Carter county land. But the information does not allege that the defendant, by any false pretense, obtained the signatures of R. F. Freeman and Sarah A. Freeman, or either of them, to said deed. This is the gravamen of the offense, and against which the statute is leveled. As the information fails to allege that the defendant obtained the signatures of the said R. F. Freeman and Sarah A. Freeman to the deed which purports to have been executed by them to Mrs. Pocahontas Miller, the information must be held to be invalid. It follows thaf instruction number 1 given by the court upon the theory that the information charges that the defendant, by false and fraudulent representations, obtained the signatures of Mr. and Mrs. Freeman to the deed conveying the property described therein to Mrs. Miller, is erroneous, as not being authorized by the information; in a word, is broader than the information.

Defendant complains of the action of the court in permitting the prosecuting attorney, over defendant’s objection, to amend the information by inserting the words, “and by said F. M. Miller then and there delivering the said deed to said R. F. Freeman and Sarah A. Freeman, his wife, with the- names of said grantees so written in as aforesaid.” While the defendant in his brief asserts that the amendment was made after the jury was sworn, the record indicates that the amendment was made before the jury was sworn. However this may be, it is unnecessary to decide the question, as the judgment will have to be reversed and the cause remanded for new trial under a new or amended information.

Defendant also insists that several instructions asked by him, and refused by the court, should have been given. The court, of its own motion, gave several instructions, as also one asked by defendant, which instructions covered all the issues involved in the case, and, with the exception of the first, which is erroneous as indicated, were correct. No other instructions were necessary.

Our conclusion is that the judgment should be reversed and the cause remanded. It is so ordered.

All concur.


author: FOX, P. J.

text:
    THE STATE v. STERLING P. HAMLETT, Appellant.
    Division Two,
    May 19, 1908.
    1. MOTION TO DISMISS: Not Reviewabie. The action of the court in overruling a motion to dismiss is properly embraced in tbe record proper. But if the action is to be reviewed upon appeal, tbe motion itself must be preserved in tbe bill of exceptions, as must also tbe exceptions saved at tbe time it was overruled.
    2. CONSTITUTIONAL STATUTE: Title: More Than One Offense. Because an act embraces more than one offense, and prescribes a distinct and separate punishment for each, is no reason for holding it unconstitutional, if tbe separate punishments and offenses are germane to and congruous with tbe title.

      3. -: -: -: Pharmacy Act. Section 3045, Revised Statutes 1899, which in one subdivision makes it a misdemean- or to procure a registration as a pharmacist by false representation, and fixing a punishment, and in another subdivision makes it a misdemeanor for a person who is not a registered pharmacist to conduct a pharmacy or a place where medicines are compounded, and provides a punishment for that misdemeanor, is germane to the title of “Druggists and their Licenses,” and neither the title nor the act embraces more than one subject.
    4. -: Pharmacy Act. The General Assembly has the power by appropriate legislation to regulate the transaction of business by those who are engaged in dispensing drugs and medicines; and to prescribe a punishment for any person, who is not a licensed pharmacist, or who does not have in, his employ a licensed pharmacist, who maintains a drug store and sells in retail whiskeys, poisons and other drugs for medicinal use.
    Appeal from Pike Circuit Court. — Hon. B. H. Eby, Judge.
    Aeeibmed.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The information, which was filed before the justice of the peace, is sufficient in form and substance. R S. 189£>, sec. 3045. (2) The statute is constitutional. State v. Wheelock, 95 Iowa 584; State v. Norton, 67 Iowa 642; State v. Heinemann, 80’ Wis. 256; State v. Forcier, 65 N. H. 42; Smith v. Alabama, 124 U. S. 465; Ex parte Lucas, 160 Mo. 232; Board v. Fowler, 50 La. Ann. 1373; State v. Davis, 194 Mo. 485. Counsel for the State hardly feel called upon to argue that the statute in question is a reasonable exercise of the police power of the State, exercised for the protection and safety of the people. Indeed, it may be said that no calling or occupation is more beneficial or more dangerous than that of the man who compounds and sells medicines, drugs and poisons. (3) The evidence of the guilt of the defendant was sufficient. The State’s witnesses (unwilling though some of them were) testified to the sign “drug store” painted over the front door of defendant’s place of business, and they testified to the sale by the defendant of the various articles at the drug store in question, and two gentlemen, who were druggists, testified that those articles are medicines, poisons, chemicals and drugs. Several of the State’s witnesses testified that these sales occurred at times when there was no druggist or pharmacist employed in said store. The defendant, to some extent and on some subjects, contradicted those witnesses. But the defendant never called Dr. Adolph Henning, who was a registered pharmacist, as a witness, and never attempted to account for his absence; and the testimony of Dr. Henning on these subjects would have been of great value in determining just when this pharmacist was in defendant’s employ. Where there is substantial evidence tending to' sustain the verdict of guilty, this court will not attempt to weigh the evidence, nor pass on the credibility of the witnesses; but will defer to the finding of the jury, as approved by the trial judge. State v. Smith, 190' Mo. 706; State v. Groves, 194 Mo. 452; State v. Payne, 194 Mo. 442; State v. Swisher, 186 Mo. 8; State v. Yandell, 201 Mo. 646.
   FOX, P. J.

— This cause comes to this court by appeal on the part of the defendant from a judgment of the circuit court of Pike county convicting the defendant of unlawfully conducting a drug store, being a place of retailing, compounding and dispensing physicians’ prescriptions, drugs, medicines and chemicals for medicinal use, without being at said time a registered pharmacist as provided by law and without keeping constantly in his employ a competent pharmacist or druggist.

On January 31, 1907, the prosecuting attorney of Pike county filed an information with a justice of the peace of that county charging the defendant with conducting a drug store and dispensing drugs, medicines, etc., for medicinal use, without being a registered pharmacist and without keeping in his employ a competent pharmacist or druggist. A conviction resulted in the trial before the justice of the peace. Prom that judgment an appeal was taken to the circuit court of Pike county, where the defendant was again tried by a jury and again convicted and his punishment assessed at a fine of one hundred dollars.

The State’s evidence tended to prove that during the twelve months prior to the filing of the information herein, the defendant was engaged in business in the town of Ashley, in Pike county, Missouri. The defendant owned a store building on one of the principal streets of that town, had a sign “drug store” over the front door, and kept wine, whiskey, drugs, poisons and medicines, such as are usually kept in a retail drug store. On the shelves in said store, there were a large number of bottles containing medicines; some in liquid and some in solid form. These bottles had labels on them, and the words and abbreviations were in Latin. The evidence also showed that the defendant did not at all times have in his employ a registered pharmacist, and that he was not a registered pharmacist himself. During that time, the defendant sold wine, whiskey, drugs, poisons and medicines to various persons at retail. The evidence further showed that the defendant kept paint, putty, glass, oils and other articles such as are usually kept in drug stores and hardware stores.

The defendant’s evidence tended to prove that he did keep the articles referred to, but that he did not sell them, except in original packages, and that a part of said twelve months he did have a registered pharmacist in his employ, to-wit, Dr. Adolph Henning; hut Dr. Henning did not testify.

At the close of the evidence the court fully instructed the jury upon the law as applicable to the facts of this case and the cause was submitted to them. As heretofore stated they returned a verdict finding defendant guilty and assessed his punishment at a fine of one hundred dollars. Timely motions for new trial and in arrest of judgment were filed and by the court overruled. From the judgment which was entered in accordance with the verdict returned by the jury, the defendant prosecuted his appeal, and the record is now before ns for consideration.

OPINION.

The record in this cause discloses that the offense of which appellant was convicted was a misdemeanor, and manifestly the trial court granted the appeal on the ground that the constitutionality of the act upon which this prosecution is based was challenged both in the motion for a new trial and the motion in arrest of judgment.

We have not been favored with a brief or any suggestions by appellant or his counsel pointing out in what particulars the section of the statute upon which this prosecution is predicated is violative of the Constitution of this State, nor are there any suggestions made as to any of the errors complained of in the motion for new trial and in arrest of judgment. However, under the provisions of the statute we have carefully analyzed the disclosures of the record before us with a view of ascertaining whether or not there was any substantial error committed by the trial court in the disposition of this case.

I.

Complaint is made in the motion for new trial that the court erred in overruling the motion to dismiss this proceeding and wherein the defendant asked to be discharged.

An examination of the record discloses that on the 10th day of Jnne, 1907, the defendant by his counsel filed a motion to dismiss this cause and said motion coming on for hearing and being seen and heard and duly submitted, was by order of the court overruled. The action of the court upon this motion, as indicated, was properly embraced in the record proper, but we have been unable to find the preservation of the motion itself in the bill of exceptions, and the only way in which such motion could be made a part of the record in this cause and subject to review was by the proper preservation of it with timely exceptions to the action of the court in overruling it in the bill of exceptions. This not having been done, the action of the court in respect to such motion is not now before us for review.

II.

It is alleged both in the motion for new trial and in arrest of judgment that section 3045, Revised Statutes 1899, is violative of the provisions of section 28, article 4, of the Constitution of this State. This provision of the Constitution provides that “no bill . . . . shall contain more than one subject, which shall be clearly expressed in its title.” The suggestions in the motion for new trial and in arrest of judgment did not assail the title of the act in which the section upon which this prosecution is predicated is embraced. The complaint seems to be directed to the section alone for the reason that it embraces more than one offense and provides for separate and distinct punishment. In our opinion the constitutional provision to which our attention is directed has no application to a section of the statute which makes the commission of different acts misdemeanors and provides separate punishment for the commission of such acts, providing the offenses defined are germane to the title and subject to the act of the Legislature in which the section is embraced. The provisions of section 3045, of which complaint is made in the motion disclosed by the record, makes it a misdemeanor to procure or attempt to procure registration as a pharmacist by false representations and provides a certain punishment. The second subdivision of that section then makes it an offense for a person who is not a registered pharmacist to conduct a pharmacy or place where medicines are compounded or dispensed and then provides for the punishment of that misdemeanor. Both of the misdemeanors defined by that section are germane to the title and subject of the act of druggists and their licenses. In our opinion there is no merit in the contention that the section of the statute upon which this prosecution is predicated is unconstitutional.

That the General Assembly have the power by appropriate legislation to regulate the transaction of business by those who are engaged in dispensing drugs or medicines for medical use, we have no doubt. While it may be true that the occupation of a druggist or pharmacist is highly beneficial to the public, yet it will not be seriously contended that a business where medicines are compounded and sold is not frequently attended with great danger to the people who are so unfortunate as to need the assistance of medical remedies.

It has been uniformly recognized by the courts of this as well as in foreign jurisdictions, that “whenever the pursuit of any particular occupation or profession requires for the protection of the lives or health of the general public, skill, integrity, knowledge or other personal attributes or characteristics in the person pursuing it, the General Assembly has the power and the authority to have recourse to proper measures to ensure that none but persons possessing these qualifications should pursue the calling. ’ ’ [Board of Med. Exam. v. Fowler, 50 La. Ann. l. c. 1373; State v. Wheelock, 95 Iowa l. c. 584; State v. Norton, 67 Iowa l. c. 642; State v. Heinemann, 80 Wis. l. c. 256; State v. Forcier, 65 N. H. 42; Ex parte Lucas, 160 Mo. l. c. 232-33; State v. Davis, 194 Mo. 485.]

III.

We have carefully read iu detail the evidence as disclosed by the record developed upon the trial of this cause and it is sufficient to say that we see no escape from the conclusion that if the jury believed the witnesses who testified for the State there was ample testimony to support the verdict. It was the exclusive province of the jury to determine the credibility of the witnesses and to pass upon the weight of the testimony offered by the State and the defendant. As has been repeatedly ruled by this court, we will not undertake to retry the cause upon the evidence disclosed in the record, but where there is substantial evidence we defer to the finding of the jury. The verdict in this cause manifestly met the approval of all the jurymen who sat in the trial, as well as the judge who presided in the cause, hence we see no ground for disturbing this verdict upon the question of the sufficiency of the evidence.

IV.

We have carefully considered the instructions of the court and in our opinion they fully and fairly presented every phase of this case to which the testimony was applicable. Finding no reversible error disclosed by the record, the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


author: GANTT, J.

text:
    EX PARTE ALLEN O. HARRISON, Petitioner.
    Division Two,
    May 19, 1908.
    1. FREEDOM OF SPEECH AND PRESS. The liberty of speech and of the press guaranteed by the Constitution grants to a citizen the right to freely write and publish whatever he may desire and to be protected in so doing, provided always that such publication is not blasphemous, obscene, seditious or scandalous in its character so that it becomes an offense against the public and by its malice and falsehood injuriously affects the character, reputation of pecuniary interest of individuals. But if the publication is neither blasphemous, obscene, seditious, nor defamatory, the General Assembly cannot punish it.
    2. -: Civic League: Source of Information. The statute of 1907 making criminal all publications of any report by a civic league concerning candidates for office, even when not scandalous, obscene, blasphemous or defamatory, without stating “in full on what facts they base their report or recommendation, giving the name and address of all persons furnishing the information of and concerning such candidate or nominee, and stating in full the information furnished by such party,” and providing that “any person printing or publishing or causing to be printed, published or circulated any such report or recommendation without such information, shall be guilty of a misdemeanor,” is in conflict with secton 14 of article 2 of the Constitution which says “that no law shall be passed impairing the freedom of speech; that every person shall be free to say, write or publish whatever he will on any subject, being responsible for all abuse of that liberty,” and is therefore void; and the secretary of the league who caused to be printed and circulated through the mails a report concerning candidates for the office of sheriff, which was neither blasphemous, obscene, seditious, defamatory, nor injurious to reputation, without stating the source of the information on which the report was based, was guilty of no crime, and is discharged upon habeas corpus.

    3. -: -: Impairment of Right. Anything that makes the exercise of a right more expensive or less convenient, more difficult or less effective, impairs that right. Prior to the enactment of the Act of 1907, petitioner, as secretary of a civic league, would have had the right to publish a truthful report concerning candidates for public office, one free from defamatory or obscene matter, without going to the expense of publishing the names and addresses of all persons who gave him information in full, and hence the act in requiring him to publish such information along with the report, impairs his constitutional freedom of speech and of the press.
    4. -: -: Silence. The right to speak freely is necessarily attended by the correlative right to remain silent.
    Habeas Corpus.
    Petitioner, discharged.
   GANTT, J.

— -This is a proceeding under the Habeas Corpus Act, in which petitioner seeks to- be discharged from further prosecution under an information filed by the prosecuting attorney of Jackson county, in the criminal court of said county, on the 9th of March, 1908, charging the petitioner with a violation of an act passed by the Legislature of this State and approved April 12, 1907, entitled, “An Act to regulate Civic Leagues and like associations and providing how their reports and recommendations shall be published and what they shall contain, and fixing a penalty for the violation of, and liability for the same. ’ ’ [Laws 1907, p. 261.] A warrant was duly issued upon the information and the petitioner was arrested.

The said information charges that the Kansas City Civic League is and was at all times therein mentioned a league, society and association incorporated under chapter 12, article 11, Revised Statutes 1899', and was formed for the purpose of investigating the character, fitness and qualifications of candidates and nominees for public office. And that it was at all times mentioned and for a long time prior thereto, the custom and purpose of said Kansas City League to make reports and recommendations on such candidates; that on the 24th of December, 1907, in Kansas City, Jackson county, Missouri, the said Kansas City Civic League did through its executive committee then and there in executive session assembled write, make and adopt a recommendation and report upon the fitness and qualification of John M. Rood and William J. Campbell, who were then and there candidates and nominees for the election to the office of sheriff of Jackson county, Missouri, at the special election to be held in said county on the 27th of December, 1907, which said recommendation and report with the signatures of the president and secretary of the said Kansas City Civic League is in words and figures as follows:

‘ ‘ CIVIC LEAGUE REPORT.

“Report of the Kansas City Civic League on Candidates for Sheriff to be voted for on December 27th, 1907.

“John M. Rood, Democrat.

“Born on a farm near Quincy, Illinois, in 1858. Went to Carroll county, Missouri, in 1877. Taught school and was engaged in general merchandise business at Carrollton, Missouri, until 1887, when he came to Kansas City, since which time he has been engaged in the lumber business. He served one term in the upper house of the city council, 1900 to 1904. His record was approved by the Civic League at the end of his term. We regard Mr. Rood as a citizen of high type, and well qualified for the office of sheriff.

“William J. Campbell, Republican.

“Was born in Ripley, Ohio, in 1863, and came to Missouri about 1879. Was station agent for the O. B. & Q. Ry. Company at Parkville from 1884 to 1887. Was in the general merchandise business at Parkville from 1887 to 1889', when he came to Kansas City and became a member of the present real estate and insurance firm of Tilhor and Campbell. He served one term in the lower house of the city council from 1900 to 1902. The Civic League said of him at the end of his term, ‘He made a good record in the council. ’ He was appointed sheriff of Jackson county on September 30th, 1907, by the county court. The service of both Mr. Campbell, and the deputies under him, have been highly satisfactory, and the League consider him well qualified for the office.

“By order of executive committee.

“J. MoD. Trimble, President.

“A. 0. Harrison, Secretary.”

That said report and recommendation did not state in full on what facts the said report and recommendation was based and did not give or contain the name or address of any person or persons furnishing the information of and concerning said candidates and nominees in said report and recommendation contained, or upon which said report was based; that on the 24th day of December, 1907, said Allen 0. Harrison, who was then and there a secretary of said Kansas City Civic League, did unlawfully and willfully deliver a copy of said report and recommendation to the Burd & Fletcher Printing Co. in Kansas City, Jackson county, Missouri, and caused two hundred and fifty copies thereof to be printed and published by said printing company upon postal cards of the United States and did thereafter on said 24th of December, 1907, unlawfully and willingly place upon said postal cards upon which said report and recommendation had been printed, the names and addresses of two hundred and fifty different persons residing in said Kansas City, and willfully and unlawfully circulate said postal cards by depositing the same in the United States postoffice in said city with intent that they should be delivered to the persons to whom they were addressed, contrary to the statute of this State.

Petitioner seeks his release from imprisonment on said charge on the ground that said Act of March 12, 1907, is unconstitutional and void because in contravention of section 14 of article 2 of the Constitution of Missouri, which provides “that no law shall be passed impairing the freedom of speech; that every person shall be free to say, write or publish whatever he will on any subject, being responsible for all abuse of that liberty,” and also' of section 53 of article 4 of the Constitution of Missouri, which forbids special or class legislation.

Section one of the act of the Legislature of March 32th, 1907, providing how reports and recommendations of Civic Leagues and like associations shall be published, provides: “Leagues, committees, associations or societies, incorporated or unincorporated, formed for the purpose of investigating the character, fitness or qualifications of candidates or nominees for public office, and making reports on the same, shall in each and every printed or published report or recommendation as to such candidates or nominees, state, in full, on what facts they base their report or recommendation, giving the name and address, in full, of all persons furnishing the information of and concerning such candidate or nominee, and state in full the information furnished by such party. Any report or recommendation printed or published by such league, association or society, which does not contain all of the above information shall be unlawful, and any person printing, publishing or causing to be printed, published or circulated any such report or recommendation without such information, shall be guilty of a misdemeanor, and, upon conviction, shall be fined in the sum not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail for not less than one month nor more than one year, or by both such fine and imprisonment.”

The constitutional liberty of speech and of the press grants the right to freely utter and publish whatever a citizen may desire and to be protected in so doing, provided always that such publications are not blasphemous, obscene, seditious, or scandalous in their character so* that they become an offense against the public and by their malice and falsehood injuriously affect the character, reputation or pecuniary interest of individuals. [State v. Van Wye, 136 Mo. l. c. 234; Paterson on Liberty of Speech, page 5; Cooley on Constitutional Limitations (6 Ed.), 518; State ex inf. v. Shepherd, 177 Mo. l. c. 244.]

The General Assembly under the legislative power granted it by the people subject to the limitations of the State and Federal Constitutions unquestionably has the power to enact penal statutes and prescribe civil remedies, .“for all abuses of that liberty” of speech, or publication. If a publication is neither blasphemous, obscene, seditious or defamatory, then under the Constitution of this State, no court has the right to restrain it, nor the Legislature power to punish it. The report which the petitioner published has nothing in it either blasphemous, seditious, obscene or defamatory, and clearly falls within the liberty of speech or publication granted by the Constitution, but it is equally certain that this publication was forbidden by the statute of March 12, 1907, because it did not state in full all the facts on which said report or recommendation was based and did not give the name and address in full of all persons who furnished any information concerning the said nominees therein mentioned for the office of sheriff, and did not state in full the information furnished by each of the persons who furnished the same. It seems too clear for argument that this statute is in conflict with section 14 of article 2 of the Constitution. Prior to the enactment of the Act of March 12, 1907, it is not to be doubted that the petitioner would have had the right to have stated all that was said in the said report and recommendation without stating anything more, but under this act that right is now denied unless he prepares and pays for publishing all of the faetsupon which he based said recommendation and report and gives the names and addresses of all persons who gave him any information of or concerning either of said candidates and a full statement of all the information that each of them furnished him. Anything which makes The exercise of a right more expensive or less convenient, more difficult or less effective, impairs that right.

In Gladney v. Sydnor, 172 Mo. l. c. 328, it was said by this court: ‘ Impair means to make worse, to lessen the power, to weaken, to enfeeble, to deteriorate. ’ ’ The right to speak freely is necessarily attended by the correlative right to remain silent. In Wallace v. Railroad, 94 Ga. 732, it appears the Legislature had passed an act entitled: “An Act to require certain corporations to give to their discharged agents or employees the cause of their removal or discharge, .when discharged or removed. ” The Supreme Court of Georgia held said act unconstitutional, and, in doing sO',’said: “A statute which undertakes to make it the duty of incorporated railroad, express and telegraph companies to engage in correspondence of this sort with their discharged agents and employees, and which subjects them in each case to a heavy forfeiture, under the name of damages, for failing or refusing to do so, is. violative of the general private right of silence, enjoyed in this State by all persons, natural or artificial, from time immemorial, and is utterly void and of no effect. Liberty of speech and of writing is secured by the Constitution, and incident thereto is the correlative liberty of silence, not less important nor less sacred. Statements or communications, oral or written, wanted for. private information, cannot be coerced by mere legislative mandate at the will of one of the parties and against the will of the other. Compulsory private discovery, even from corporations, enforced, not by suit or action, but by statutory terror, is not allowable where rights are under the guardianship of due process of law.” The Act of March 12, 1907, is not confined to forbidding and punishing abuses of the liberty of speech or publications, but undertakes to punish speech or publication without any reference to whether they fall within the legal exceptions of blasphemy, obscenity, sedition or defamation.

"Without further discussion or elaboration we think it is perfectly obvious that the Act of March 12, 1907, transcends the power of the Legislature, and is in conflict with the Constitution and therefore void. As an unconstitutional act is utterly void, the petitioner is entitled to be discharged under the Habeas Corpus Act from further prosecution on the information filed in the criminal court against him. [Ex parte Neet, 157 Mo. 527; Ex parte Lucas, 160 Mo. 218.] The prisoner is discharged.

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


text:
    THE STATE v. EUGENE McGEE and JAMES McGEE, Appellants.
    Division Two,
    May 19, 1908.
    1. EVIDENCE: Sufficiency: Stealing Chickens. Where the prosecuting witness and his wife identified one chicken found in defendants’ stable loft as his, and testified that they saw one of defendants in the presence and at the suggestion of the other attempt to wring its head off, and defendants denied they stole the chicken and testified it belonged to them, this, with other evidence in the case (such as that six chickens and two ducks had been stolen and that the heads of two chickens were found on a pile of manure near defendants’ stable, which were bloody and showed the chickens had recently been killed, that defendants had a stove in their stable and were seen eating chickens the next day after the theft, and that one of them was heard to charge a younger brother with giving “the whole thing away”), tended to show such actual and exclusive possession of one chicken by defendants as justified the submission of the case to the jury, and to justify a verdict of guilty.
    2. MINOR DEFENDANT: Instruction as to Reform School: Harmless. The court should not instruct the jury that if they find a defendant guilty and it appears that he is under eighteen years of age he cannot be sent to either the jail or the penitentiary, but in lieu thereof shall be committed to the Reform School for Boys. The jury have nothing to do with that matter. But the instruction cannot be prejudicial to defendant, and the judgment will not be reversed on the ground of its inapplicability.

      Appeal from St. Louis City Circuit Court. — Eon. Hugo Muench, Judge.
    Aotirmkd.

      James G. Shaner for appellants.
    (1) The court should have sustained the demurrer offered hy the defense at the close of the State’s case. The only evidence, if any, against the defendants to connect them in any way with the crime charged, was the fact that one chicken, which was identified by the prosecuting witness, Archie Perkins, as one of those stolen, was found in the loft of the stable owned and controlled by the uncle of the defendants. This possession, if any, is certainly not such exclusive possession as is contemplated by the law laid down by this court. State v. Castor, 93 Mo. 242; State v. Taylor, 111 Mo. 538; State v. Bruin, 34 Mo. 537; State v. Crank, 75 Mo. 406; State v. Sidney, 74 Mo. 390'; State v. Babb, 76 Mo. 501; State v. Belcher, 136 Mo. 135 ; 3 Greenl. Evid., sec. 33. (2) The court committed error in giving instruction 3. The defendants were jointly charged with the crime of grand larceny, but were not charged with acting jointly with others not named in the information. State v. Warford, 106 Mo. 64; State v. Castor, 93 Mo. 242. (3) Instruction 6 should not have been given, and furthermore it incorrectly states the law. R. S. 1899, sec. 2381.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) No objections were made'or exceptions saved to the instructions at the time the same were given. The first mention of any objection to them is in the motion for a new trial, which is insufficient. State v. Cavin, 199 Mo. 158; State v. Yandell, 201 Mo. 661. (2) There was ample evidence tending to prove that both defendants were guilty. State v. Estes & Johnson, 209 Mo. 288. The recent and unexplained possession of the stolen pet chicken was a circumstance sufficient to justify the jury in convicting the defendants, especially as said chicken was concealed in the hay loft, and an effort was made by the defendants to kill said chicken, and defendants denied that there was any'chicken in the hay loft. State v. James, 194 Mo-. 268; State v. Toohey, 203 Mo. 678; State v. Howard, 203 Mo. 600; 4 Elliott on Evidence, sec. 3058. True, the defendants denied the larceny, and claimed that the chickens they were eating belonged to them. But they never did explain the fact of their presence in that stable at midnight on the night of the larceny, nor the noise made by the captured chickens at that very time. Under the evidence and circumstances developed, the jury were justified in disregarding all of the evidence of both defendants. Where there is substantial evidence tending to prove that a defendant is guilty, this court will defer to the finding of the jury, and not attempt to weigh the evidence. State v. Smith, 190 Mo. 706; State v. Groves, 194 Mo. 452; State v. Payne, 194 Mo. 442; State v. Swisher, 186 Mo. 8; State v. Yandell, 201 Mo. 646.
   BURGESS, J.

— On April 16th, 1907, the assistant circuit attorney of the city of St. Louis filed an information, duly verified, in the circuit court of said city, charging the defendants with stealing, in the night time, six Plymouth Rock chickens and two white ducks, of the value of seven dollars, all the personal property of Archie Perkins. The defendants, on May 15, 1907, were jointly tried, and-both were convicted, the punishment being assessed at two years in the penitentiary. The court, being satisfied that defendant Eugene McGee was under eighteen years of age, changed his punishment to three years in the training school for boys. After filing a formal motion for a new trial, which was denied, the defendants appealed.

The State’s evidence tended to prove that prosecuting witness, Arch Perkins, resided, on the 3rd day of March, 1907, at No. 1612 Glasgow avenue, in the city of St. Louis. In the rear of Perkins’s house there was an alley, and the two defendants, who were brothers, aged 20 and 17, respectively, resided with their father and uncle a few houses from Perkins, and the back premises of both houses opened on said alley. In the rear of Perkins’s residence there was a small yard, and a few feet-from the house in said back yard, there was a coop containing Perkins’s chickens. On Saturday night, March 3rd, Perkins fastened five hens, a rooster and three ducks in said coop, and locked the door. All of said fowls belonged to Perkins, and one was a pet chicken. The next morning, at seven o’clock, when Perkins went out to feed his fowls, he found that they were all gone, except one duck. He also found the door of the chicken coop open, and saw some burnt matches and cigarette papers lying near the chicken house; also a lot of feathers. Out in the alley P'erkins also found feathers, which were strung along down "to the stable in the rear of the defendants ’ place, and he found blood on the rocks in the alley near the stable. The feathers were of the same color as the chickens which Perkins owned — Dominique chicken feathers. Pie also found two chicken heads on a pile of manure in the stable lot at the rear of the defendants’ place. These chicken heads were bloody and showed that the chickens had recently been killed. That afternoon, Perkins was working in his stable, and he heard the two defendants talking' in their stable, which adjoined the Peiidns stable. The defendants were eating a dish of cooked chicken and drinking beer in the stable. Perkins peeped through a crack in the wall and saw both defendants in the act of eating and drinking. He heard a younger brother of the two defendants say, “Jim, mamma said send her a quarter or another one of those chickens.” The defendant, Eugene McGee, threw a beer faucet at Ms little brother, and called him a little snitch, -saying, ‘ ‘ He has given the whole thing away; I will make Claycamp whip him for snitching.” The defendant, James McGee, then said, “0, Engene, go up and pull that other one’s head off.” And defendant, Eugene McGee, then went up in his hay loft and tried to wring its head off, and did succeed in breaking the skin and ruffling the feathers of the chicken. Perkins and wife, who were then watcMng the performance through the crack in the wall, gave the alarm, and the chicken made its escape. "When accused of havmg one of Perkins’s chickens in their stable loft, the defendants denied it ; but the chicken was found in said loft by the Perkinses, and by the police immediately afterwards. TMs was the pet eMcken, which they recognized, and which came to Mrs. Perkins as soon as she called it; its feathers were badly raffled and its neck was bleedmg. The State’s evidence further tended to show that the chickens stolen were reasonably worth $8 and that the ducks were reasonably worth $2.50. The evidence further tended to prove that the two defendants had a stove in this stable, and cooked chicken that day on said stove; and also burned chicken feathers; that Perkins reported the larceny to police officer Bittel, who went to the stable where the defendants still were, and knocked at the door, and when Perkins accused the defendants of stealing his chickens they denied it, claiming that the chickens belonged to them; that about one o’clock Saturday night, the two defendants were in said barn with a lighted candle, and that a police officer heard noises as of captured chickens at the time said chickens were being carried down the alley near said stable.

The two defendants testified, denying that they stole Perkins’s chickens, and claiming that the chickens they were eating that Sunday belonged to them. They derned knowing anything about Perkins’s chickens or ducks, or what was their color, and denied that there were any chicken heads near the stable. Both stated that the'chicken found in the stable loft, which Perkins claimed as his, belonged to them, but were unable to say how the chicken was injured and the feathers plucked from its neck. They introduced some evidence tending to prove a good reputation for honesty, but two of their character witnesses admitted, on cross-examination, that they had heard that the defendants had previously been arrested on the charge of stealing a cow.

At the close of the State’s case the defendants asked for an instruction in the nature of a demurrer to the evidence, which was refused, and they saved an exception. As grounds for this demurrer, the defendants contended that the only evidence connecting them in any way with the crime charged against them was that in relation to the finding of a chicken in the loft of the stable owned and controlled by the uncle of the defendants, which chicken was identified by the prosecuting witness, Archie Perkins, as one of those stolen.

The prosecuting witness, Archie Perkins, identified the chicken found in the stable loft as his, while both defendants testified that it belonged to them, and these facts, with others in evidence, tended to prove such actual and exclusive possession of the one chicken by the defendants as to justify the submission of the ease to the jury, and, for that matter, to justify the verdict of the jury.

It is next insisted that the court committed error in giving instruction number 3. This instruction merely went to the competency of the defendants as witnesses in their own behalf, and the consideration to be given such testimony by the jury. It is in a form often approved by this court, and free from objection.

Instruction number 6 is claimed to be erroneous and prejudicial to the defendants, and incorrectly states the law. The last sentence of this instruction is as follows:

“If after such conviction, if any, it shall be made to appear to the court that any defendant so found guilty is under the age of eighteen years, the law directs that he shall not be sent either to the jail or to the penitentiary, but in lieu thereof shall be committed to the Missouri Training School for Boys, at the city of Boonville, Missouri, for a period of not less than two years, nor beyond the time when he shall arrive at the age of twenty-one years. ’ ’

The matter of this part of the instruction was something with which the jury had nothing whatever to do, and was altogether for the court. [State v. Darling, 199 Mo. 168; State v. Townley, 147 Mo. 205.] It could not, however, have been in any way prejudicial to the defendants, or either of them, and the judgment should not he reversed upon the ground of the inapplicability of said part of the instruction to any issue in the case.

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

All concur.


text:
    THE STATE v. EXCELSIOR SPRINGS LIGHT, POWER, HEAT & WATER COMPANY, Appellant.
    Division Two,
    May 19, 1908.
    1. INVALID STATUTE: Failure to Define an Offense: Coal Tar in Streams. Section 28 of the Game and Fish Law of 1905, Laws 1905, p. 163, providing that “it shall be unlawful for any person or persons, firm or corporation to suffer or permit any dyestuff, coal tar, oil, sawdust, poison or deleterious substances to be thrown, run or drained into any waters of this State in quantities sufficient to injure, stupefy or kill fish which may inhabit the same at or below the point where any such substances are discharged or permitted to flow or thrown in such waters,” is void, for the reason that it does not intelligently describe or define an offense. It only punishes the person or company that permits those things to be done, and not the person that does them. Nor does it require the persons doing the wrongful act to be in the employ or under the control of the person or firm permitting the act to be done. Besides, the court cannot supply the essential and necessary provisions which would impress as wrongful and criminal the acts designated in the statute, such as its failure to impose on those committing the acts the duty to prevent the throwing of poisonous substances into the waters of the State, or to declare that they occupy any position that would impose upon them either the moral or legal obligation of not permitting the commission of such acts.
    2. -: -: Uncertainty. If no judicial certainty can be settled upon as to the meaning of a statute, or if it omits in the defining of a criminal offense certain necessary and essential provisions which go to impress the acts committed as being wrongful and criminal, the courts are not at liberty to supply the deficiency or undertake to make the statute definite and certain.
    Appeal from Clay Circuit Court. — Row. J. W. Alexander, Judge.
    Reversed.

      Harris L. Moore for appellant.
    Section 28 is void for the reason that it does not •intelligently describe any offense. The attempt to make it unlawful to suffer or permit certain, substances to escape or flow into a creek was evidently intended by the Legislature to prohibit a citizen from placing, putting or draining such substances into the creek or from permitting the same to be done from the premises over which he has control, but the statute does not do either of these. By its terms, a man who threw or placed such substance in the creek would not be guilty, while again one allowing it to be done, though he had no means of preventing it, would be, and the statute being criminal, the defendant has a right to have it strictly construed and to stand on the letter of the law. The provision that it shall he a crime to “suffer or permit” a thing to be done without requiring that it should be under circumstances when defendant had power to prevent its occurrence and without’ making it wrong to do the act was plainly an error on the part of the draftsman of the bill. State ex rel. v. Ashbrook, 154 Mo. 375; Bishop on Statutory Crimes (3 Ed.), sec. 41; "Warden v. Tye, R. D. 74; 26 Am. and Eng. Ency. Law, 656. The Legislature, in other statutory enactments, has recognized the difference between prohibiting the commission of an act and prohibiting the citizen from permitting the act to be done. The two expressions are not synonymous. R. S. 1899, secs. 2298, 2300, 2305', 7456, 7460, 3009, 3011, 3014, 3015, 3017 and 3018.

      Herbert 8. Hadley, Attorney-General, and Bush G. Lake, Assistant Attorney-General, for the State.
    (1) Section 28 is not invalid for uncertainty. It is the contention that this provision of the act is unconstitutional, in that it makes it unlawful for a person to suffer or permit the things prohibited to be done, and fails to prescribe a punishment for the doing of the same act by a person. As to the meaning of the word “permit,” see State v. Probasco, 62 Iowa 403. A person who actually and flagrantly does place poisons or deleterious substances in the waters of this State, escapes punishment, and the one who suffers or permits it to be done is punished. This argument of counsel is disposed of in the case of State v. Hodges, decided at the October term, 1907, wherein the court discussed the provisions of the law as set out in section 7456, Revised Statutes 1899, and section 29 of the Game Law of 1905. If the act in question had been done, and proven to have been done by a person or persons, the State would have proceeded against him under section 7456, Revised Statutes 1899, but inasmuch as the act complained of was suffered or permitted to be done, the State brought the action against the defendant under the provisions of- section 28 of the Game Law of 1905. The Hodges case having been decided so recently, it is not deemed advisable to further discuss the second point upon which defendant relies. (2) There is no question that there is lodged in the Legislature the authority to enact laws for the preservation of fish and game. State v. Heger, 194 Mo. 707; State v. Weber, 205 Mo: 36.
   FOX, P. J.

— This cause is here upon appeal by

the defendant from a judgment of the circuit court of Clay county, for a violation of the provisions of section 28, of what was commonly called the Game and Fish Law, enacted by the General Assembly of this State in 1905. [Laws 1905, p. 163.] The information based upon the provisions of the section of the statute heretofore referred to and upon which this judgment rests, omitting formal parts, was as follows:

“Ralph Hughes, prosecuting attorney within and for the county of Clay in the State of Missouri, informs the court (upon the affidavit of W. A. Higbee, a deputy game and fish warden of the State of Missouri, herein filed), that the Excelsior Springs Light,'Power, Heat and Water Company, a corporation organized and existing according to law, did, on the 23rd day of May, A. D. 1906, at the county of Clay and State of Missouri, by and through its servants and employees, wilfully and unlawfully suffer and permit certain coal tar, coal gas, and other poisonous and deleterious substances to be thrown, run and drained into certain waters of the State of Missouri, to-wit, into a stream or branch commonly known and designated as the Dry Pork of Pishing River, and from thence to run and drain into certain other waters of the State of Missouri, to-wit, into a stream commonly known and designated as the East Pork of Pishing River, in quantities sufficient to injure, stupefy and kill the fish which' inhabit said waters, at and below the point where said coal tar, coal gas and other poisonous and deleterious substances were suffered and permitted to be thrown, run and drain into such waters, as aforesaid, against the peace and dignity of the State. ’ ’

In order to determine the legal propositions involved in this cáse it may he conceded that there was some evidence tending to show that the refuse from the gas plant which went into the river contained some coal tar, hut as to the amount of coal tar in it, or as to whether it was the coal tar or some other substances in the refuse which caused the danger or killed the fish, the evidence is not entirely satisfactory.

The court instructed the jury and the cause was submitted to táem and a verdict was returned finding defendant guilty and assessing its punishment at a fine of $200. Timely motions for new trial and in arrest of judgment were filed and by. the court overruled. From the judgment which was entered in accordance with the verdict, the defendant prosecuted this appeal and the record is now before us for our consideration.

OPINION.

The record before us discloses that the offense of which defendant was convicted was a misdemeanor, but it also is made to appear that the appeal was granted to this court for the reason that the validity and constitutionality of the section upon which this prosecution is based was challenged. Numerous errors are assigned as a basis for the reversal of this judgment.

First. Complaint is made that the trial court did not properly declare the law upon the facts developed at the trial.

Secondly. It is earnestly insisted that section 28 upon which this prosecution is predicated is void, fo'r the reason that it does not intelligently describe or define an offense.

It is apparent that the second proposition, which involves the validity of this statute, is the vital and overshadowing one in this cause, and if the insistence of learned counsel for appellant is to be maintained, the necessity for discussing other questions presented can be dispensed with, hence we will direct otir attention first to the discussion of the second proposition.

I.

Section 28, Laws 1905, p. 163, upon which, this prosecution is based, provides that “it shall be unlawful for any person or persons, firm or corporation to suffer or permit any dyestuff, coal tar, oil, sawdust, poison or deleterious substances to be thrown, run or drained into any of the waters of this State in quantities sufficient to injure, stupefy or kill fish which may inhabit the same at or below the point where any such substances are discharged or permitted to flow or thrown in such waters. Any person or persons, firm or corporation offending against any of the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction shall be fined not less than $200 nor more than $500 for each offense.”

It will be observed that the provisions of that section undertake to create and define an offense by simply saying that any person or persons, firm or corporation who shall suffer or permit any poisonous or deleterious substances to be thrown, run or drained into the waters of this State in quantities sufficient to injure, stupefy or Mil fish, shall be deemed guilty of a misdemeanor. No one can read the provisions of that section and escape the conclusion that it is a marked departure from the usual legislation along that line which undertakes to define criminal offenses. It will be observed that the provisions of this section do1 not condemn the act of throwing, poison or deleterious substances into the waters of this State, but is simply directed against those who suffer or permit such act to be done. In other words, A may throw the poison or deleterious substances into the waters of this State, but his act is not embraced within the provisions of this section. On the other hand, if B suffers or permits A to do tMs act, he is guilty of a criminal offense. As it is very tersely stated by the learned Attorney-General in his brief now before us, “a person who actually and flagrantly does place poison or deleterious substances in the waters of this State escapes punishment, and the one who suffers or permits it to be done is punished. ’ ’ Another marked feature of this statute is the omission of necessary provisions which are absolutely essential in order to stamp the acts of persons permitting or suffering substances to be thrown into the waters of this State as a wrongful or criminal act. It nowhere provides that the permission or suffering of the acts to be done must be upon premises or in the operation of a plant under the control of the persons, firm or corporation designated by the statute, or that the persons committing the act are in the employ of such persons, firm or corporation. In other words, there is an entire absence from that section of provisions which in any way impose the duty upon the persons, firm or corporation designated by the statute to prevent the throwing of poisonous substances into the waters of this State or that such persons, firm or corporation as mentioned in the statute occupied any position which would impose upon them either the moral or legal obligation of not suffering the commission of such acts. Manifestly the provisions of this section were intended to be directed towards persons, firms or corporations operating sawmills or other plants along streams of water in this State where poisonous refuse matter from such plants might be thrown, run or drained into such streams of water, but the difficulty in holding that this statute intelligently defines a criminal offense is that the court cannot supply the essential and necessary provisions which would impress the acts committed by those designated in the statute as wrongful or criminal.

The people of this State have long felt the necessity of appropriate legislation for the preservation and protection of game and fish, and this court would not hesitate in giving its unqualified approval to a law which condemned the throwing of dyestuff, coal tar, oil, sawdust, poisons or other deleterious substances into any of the waters of this State in quantities sufficient to injure, stupefy or Mil fish, and which condemned the acts of any person, firm or corporation in throwing, running or draining such poisonous substances into the waters of this State or in permitting or suffering the same to be done in the operation of their plants upon premises under their control or by persons upon such premises in their employ.

Our attention is directed by the Attorney-General to the case of State v. Probasco, 62 Iowa 400, l. c. 402, where the court indulges in the discussion of the meaning of the word “permit.” In treating of this word, it is said: “It implies express assent or license to do an act, or a failure to prohibit or prevent it. If it is the duty of one to prevent or prohibit an act, and he fails to do so, or to use efforts to do so, he permits it. He permits the act which he could have preventéd. This is the common meaning of the word, and it is used in that sense in the statute before us.” It is sufficient to say of that discussion that it simply emphasizes the correctness of the conclusion reached upon this statute. It is there plainly pointed out that “if it is the duty of one to prevent or prohibit an act, and he fails to do so, or to use efforts to do so, he permits it. He permits the act which he could have prevented. ’ ’

Recurring to' the provisions of section 28 upon which this prosecution rests, it will be noted, as before stated, that there is an entire absence of the necessary and essential provisions which imposes the duty upon those designated in the section to prevent or prohibit the-acts therein specified.

Our attention is also directed to the expression of the views of this court upon the provisions of section 7456, Revised Statutes 1899, and section 29 of the Game Law of 1905, in State v. Hodges. "While the opinion in that case is on file in this court, yet, after it had been delivered, the court’s attention having been called to the fact that the record failed to show any final judgment entered against the defendant, that opinion was withdrawn, and the case was remanded with directions to enter np judgment upon the verdict as returned by the jury. [State v. Hodges, 207 Mo. 517.] Therefore, the case of State v. Hodges, to which our attention has been directed, has not been and will not be officially reported. That case has no application to the proposition involved in the case at bar. While section 7456 and section 29 of the Lame Law of 1905' relate to the preservation of game and fish, yet it is only necessary to read the two sections in order to demonstrate that they relate to the commission of entirely different acts, the commission of which constitutes the respective offenses designated by those sections, and have no reference to the acts embraced in section 28 involved in the case at bar.

Recurring again to the provisions of section 28 upon which this proceeding is based, we are not unmindful of the well-settled rule that legislation should not be held invalid on the ground of uncertainty if susceptible of any reasonable construction that will sup>port it. But on the other hand, it is equally well settled that if no judicial certainty can be settled upon as to the meaning of a statute, or if it omits in defining a criminal offense certain necessary and essential provisions which go to impress the acts committed as being wrongful and criminal, the courts are not at liberty to supply the deficiency or undertake to make the statute definite and certain.

In 26 Am. and Eng. Ency. Law (2 Ed.), 656', the rule as above indicated finds substantial support. In the text it is there said: “When the language of an act appears on its face to have a meaning, but it is impossible to give it any precise or intelligible application in the circumstances under which it was intended to operate, it is simply void; for if no judicial certainty can be settled upon as to its meaning, courts are not at liberty to supply the deficiency or make the statute certain. But legislation cannot be nullified on the ground of uncertainty, if susceptible of any reasonable construction that will support it.” Numerousi authorities are cited in the notes which doubtless furnish at least substantial support to the announcement of the rule.

Mr. Bishop, in his treatise on Statutory Crimes (3 Ed.), in the 3rd subdivision of section 41, thus states the rule: “Where the statutory terms are of such uncertain meaning, or so confused, that the courts cannot discern with reasonable certainty what is intended, they will pronounce the enactment void. ’ ’

It is apparent that the provisions of section 28 are not susceptible of a proper and intelligible enforcement by the courts of this State, unless by implication we are willing to treat as embraced within the provisions of that section the essential and necessary provisions heretofore pointed out. This we are unwilling to do.

Having reached the conclusion as herein indicated upon the main proposition, there is no necessity for giving any attention to the errors complained of respecting the declarations of law given by the court.

We have indicated our views upon the section of the statute now in judgment before us, which results in the conclusion that the judgment of the trial court should be reversed and the defendant discharged. It is so ordered.

All concur.