author: BROWN, J.

text:
    THE STATE v. JAMES W. HELTON, Appellant.
    Division Two,
    February 17, 1914.
    1.. CONSTITUTIONAL STATUTE: Title: Repealing Section and Enacting New Section; Abortion. Where the title to a hill expresses an intention to repeal a certain section of the Revised Statutes and to enact a new section in lieu thereof, the provisions of the section repealed must be looked to for the purpose of ascertaining if the same subject has been dealt with in both sections; and if the section repealed denounced as a crime the use of any instrument upon a woman pregnant with a quick child with intent to destroy such child, when such act is not necessary to preserve the life of the mother, and the only material change made in said section by the new section, in ■so far as it relates to the act of which defendant has been convicted, is that the amendment makes it a felony to unnecessarily use any instrument upon a woman with intent to promote a miscarriage or abortion, whether the woman be pregnant or not at the time such instrument is used, the purpose of the amendment is sufficiently comprehended in the title, for the purpose of both statutes was to prevent criminal abortions, and the amendment was designed to prevent all attempts to bring them about.
    2. -:--: -: -: Two Separate Crimes. And while the amended section creates two separate crimes, namely, the “felony of abortion” and manslaughter by causing the death of a pregnant woman or her child, the two crimes are so closely related that it was not a violation of the Constitution to include them in one section.

      3. REMARKS OF PROSECUTOR: This Serpent. A remark by the special prosecutor in his opening argument in a case where a physician was being tried for criminal abortion that “this girl never had a breath of slander against her until this serpent crossed her path,” under the circumstances of this case, where the remark received the express approval of the court, and the evidence of defendant’s guilt is very meagre and unconvincing, and the prosecutor undertook to secure a conviction by arousing prejudice in the minds of the jurors through the use of epithets and other improper argument, was reversible error.
    4. ABORTION: Insufficient Evidence: Suspicion. No one can be deprived of his liberty upon evidence which is only strong enough to arouse a suspicion of guilt. The defendant, a physician forty-five years of age, was convicted of committing “the felony of abortion” on an unmarried woman, on July 9, 1912, by inserting metal instruments into her womb. He admitted he had sexual intercourse with her on June .5th and twice thereafter. She testified that on May 15th he walked with her to a place near a cemetery and “by placing a handkerchief saturated with some kind of sweet-smelling stuff to her nose and mouth” caused her to immediately become unconscious, and while she was in that condition he took her into a near-by field and had sexual intercourse with her; that she was so completely overcome by the anaesthetic so applied to her nose and mouth while they were walking along the street that she scarcely realized the act of sexual intercourse until they were returning to her home, when defendant told her- of it and requested her not to tell her family; that she missed her menstrual periods due to occur on May 25th and June 25th, and that, her health becoming poor, she informed defendant of her condition, and thereupon he called her to his office and inserted a metal instrument into her sexual organs; that he inserted these instruments twice in the month of June and again on July 9th; that he placed her on his operating chair and inserted a speculum in her vagina, and placed some wet cotton on the instrument and introduced it into her .private parts; that on July 12th she took sick and remained: in bed a week with a discharge from her womb; and she.and her mother testified that during this sickness she had a copious menstrual flow and passed some pieces of clotted blood the size of a silver quarter. Two witnesses testified ' that on May 15th they saw her and defendant near the cemetery and as they returned home, and that he did not chloroform her or take her into a field or have sexual intercourse with her. Three physicians testifying for the defendant, and two for the State, completely discredit the testimony of prosecutrix that she was placed under an anaesthetic while walking along the street, and testified that there was no known anaesthetic that would cause a person to immediately become unconscious if applied while walking in the open air; and they all testified that if she became pregnant on May 15th the foetus would have been too large to have been concealed in a blood clot the size of a silver quarter on July 12th. Two of these physicians, one called by the State and the other by defendant, testified that they were called to the home of the prosecutrix in the summer of 1912 to examine and find out if an abortion had been performed on her, and that upon such examination they did not discover any evidence of an abortion. Three witnesses corroborated prosecutrix that she was ill about July 12th, and four others testified that she was not ill at that time, but well and out on the streets almost daily. Two witnesses testified that prosecutrix admitted that her menstrual flow came at its regular time in May and June, and another that she had so testified at the preliminary hearing. Defendant denied that he had inserted any instrument into her womb, but admitted that after he had sexual intercourse with her in his office he inserted into her vagina a uterine forcep with some wet cotton for the purpose of cleansing her sexual organs and preventing conception; and an eminent physician called for the State testified that to produce abortion it was not usual to place cotton on the instrument to be inserted into the womb, but that cotton was sometimes introduced into the vagina for cleansing purposes. Held, that the evidence is insufficient to sustain a conviction, and the case having been carefully tried the defendant is discharged.
    Appeal from Bates Circuit Court. — Son,. G. A. GaLvird, Judge.
    Reversed:

      John G. McKinley, J. F. Smith and W. O. Jackson for appellant.
    (1) Tlie section of the statute on which this proposition is bottomed is violative of section 28, article 4, of the Constitution, in that it contains matters not clearly set forth in the title thereto, and contains more than one subject which are not set forth in said title to said act. This present section of the statute, R. S. 1909, sec. 4458, corresponds to the amended statute passed in 1907, Laws 1907, p. 230, when the Legislature evidently aimed to amend the statute relating to manslaughter and designated in the Revised Statutes of 1899 as section 1825. That section was one of the manslaughter sections that had been running through the statutes and was punishable as for death of the mother or quick child, where the mother was pregnant with quick child; the amendment of 1907 changed the offense and the name of the offense, from manslaughter to abortion and likewise the punishment, which in its essential elements took it out of the manslaughter statute entirely, but in the title of the bill no notice of the radical change was given, the title of the bill enacted in 1907, being, “An Act to repeal section 1825 of article 2, chapter 15, of the Revised Statutes of Missouri, 1899, entitled ‘Crimes and Punishments’ and to enact a new section (in lieu thereof, to be known as section) 1825,” and goes on in the body of the section and provides that upon the doing of certain acts, the physician, whether the woman be pregnant or not, shall be guilty of “the crime of abortion” and punished, etc. This cannot be done in that way. Constitution, sec. 28, art. 4; State v. Coffee Co., 171 Mo. 639; State ex rel. v. County Court, 102 Mo. 537. (2)' The instructions asked by defendant and refused by the court to the effect that'the jury before they could convict, must find and believe that defendant “knew or believed that the woman was pregnant,” should have been given. Under the evidence in this case it was a proper cautionary instruction and having been asked should have been given. Commonwealth v. Nailor, 29 Pa. Sup. Ct. 271. (3) The court erred in directing attorney 'Dawson, of counsel for the State, to “go ahead” instead of rebuking him, for calling .defendant a serpent, to which defendant’s counsel objected. Evans v. Trenton, 112 Mo. 390; State v. Young, 99 Mo. 666; State v. Ulrich, 110 Mo. 350 ; State v. Fisher, 124 Mo. 460; State v. Bobbet, 131 Mo. 328. Likewise the court should have rebuked Prosecuting Attorney Chastain for saying in his closing argument: “The witnesses from Green City all knew that lie liad been charged with rape or an assault with intent to rape Jessie Cameron. ’ ’

      John T. Barker, Attorney-General, and Ernest A. Green, Assistant Attorney-General, for the State.
    (1) The objection made by the appellant in his motion to quash this information, viz., that Sec. 4458, R. S. 1909, upon which this prosecution is bottomed, is unconstitutional and void, is answered by the case of State ex rel. v. Shields, 230 Mo. 102. (2) Under the fourth, fifth and sixth grounds of the motion to quash, it was contended that Sec. 4458, R. S. 1909, upon which this prosecution is based, is unconstitutional because the title, to the legislative act creating this offense did not fully set forth the matters contained in said section. The title to this act clearly expresses the subject of the enactment and therefore the section is not violative of Sec. 28, art. 4, of'the Constitution. The general rule on this subject has always been that legislation by reference to sections is valid. State ex rel. v. County Court, 128 Mo. 427. It has ben generally held that although the provisions of Sec. 28, art. 4, of the Constitution are mandatory, yet that they should be liberally construed. The purpose of the title is merely to indicate to the Legislature and the people in clear terms the general contents of the bill. St. Louis v. Tiefel, 42 Mo. 578; State v. Miller, 45 Mo. 495; State ex rel. v. Miller, 100 Mo. 439; State ex rel. v. Bronson, 115 Mo. 271; Lynch v. Murphy, 119 Mo. 153; State ex rel. v. Slover, 134 Mo. 10; Gabbert v. Railroad, 171 Mo. 84; State v. Coffee Co., 171 Mo. 634; Ferguson v. Gentry, 206 Mo. 189. If the title of an original act embraces the provisions of an amendatory act it is valid, although the title of the amendatory act is not of itself sufficient. State ex rel. v. Rah-son, 73 Mo. 78; State ex rel. v. Laughlin, 75 Mo. 358; State ex rel. v. Heege, 135 Mo. 112. Mere generality of the title will not vitiate an act unless it shows a design to mislead. Some deference must be paid to the decision of the Legislature as to the title. O’Con-nor v. Transit Co., 198 Mo. 622. (3) It was proper to prove by the defendant on cross-examination, as affecting his credibility, the fact that he had pleaded guilty to an assault upon one Jessie Cameron. Defendant’s conviction of other crimes may be proven by the record thereof or defendant’s evidence on cross-examination. State v. Spivey, 191 Mo. 87; • State v. Blitz, 171 Mo. 530; State v. Thornhill, 174 Mo. 364; State v. Sasseen, 75 Mo. App. 197. (4) The verdict is not contrary to the law and the evidence. The State offered evidence tending to prove every material fact essential to establishing defendant’s guilt, and under appropriate instructions the jury returned a verdict of guilty. This court will not, under such circumstances, convert itself into a trier of facts and undertake to find a different result from that of the jury. State v. Matthews, 202 Mo. 147; State v. McCullough, 171 Mo. 574; State v. Tetrick, 199 Mo. 100; State v. Williams, 199 Mo. 137. (5) The first instruction follows the language of the statute creating the offense, and is sufficient in every respect to fully define the offense. Sec. 4458, R. S. 1909; State v. Grow, 235 Mo. 307; State v. Castro, 231 Mo. 398; State v. Dean, 85 Mo. App. 473; State v. Yan Houten, 37 Mo. 357; State ex rel. v. Shields, 230 Mo. 91. It is true that this instruction does not require the jury to find that the abortion was not advised by a duly licensed physician to be necessary, but that exception in the statute is not open as a defense to a duly licensed physician. Sec. 4458, R. S. 1909; State v. Grow, 235 Mo. 324. (6) The appellant complains that the trial court permitted improper argument on the part of State’s counsel. This assignment is not subject to review, as the alleged improper remarks are not set out in the motion for a new trial, where they should have been in order to be reviewable. State v. Jeffries, 210 Mo. 337; State v. Baker, 209 Mo. 451; State v. Clapper, 203 Mo. 384. Furthermore, we do not find that any request was made at any time to rebuke the assistant prosecuting attorney for calling the defendant “a serpent,” nor do we find that any exception was taken to the failure of the court to reprimand the prosecuting officer. Consequently the remark is not before this court for review. State v. Rasco, 239 Mo. 580; State v. McMullin, 170 Mo. 632.
   BROWN, J.

Defendant, a practicing physician forty-five years of age, was convicted of committing “the felony of abortion” upon one Ruby Seese, in Bates county, Missouri, on July 9, 1912. The first count of the information charges the crime to have been perpetrated by inserting metal instruments into the womb of the prosecutrix with intent to cause an abortion; and the second count charges the administering of drugs to prosecutrix with the same felonious intent. At the close of the State’s testimony, the prosecuting attorney elected to stand upon the first count charging an unlawful use of instruments, as denounced by section 4458, Revised Statutes 1909.

From a judgment finding defendant guilty and fixing his punishment at a fine of $200 and. one year in the county jail, he appeals.

The evidence discloses that about ten o’clock on the evening of July 9, 1912, while defendant and prosecutrix were leaving his office, they met the father of prosecutrix. He was in an angry mood and assaulted defendant on the street. On the same night the father also caused the defendant to be arrested on a charge of rape upon prosecutrix. The defendant was locked up on said charge of rape for some three months, when that charge was voluntarily dismissed by the State, and the information filed charging’ him with the felony of abortion.

To prove a motive for defendant’s alleged acts-in trying to produce an abortion upon prosecutrix, the State introduced evidence tending to prove that defendant had kept company with her for several weeks, and that he had ravished her on May 15, 1912. Her version of this transaction is that on the night of May 15th the defendant walked with her to a point-near a cemetery in the suburbs of Butler, Missouri, and, “by placing a handkerchief saturated with some kind of sweet-smelling stuff to her nose and mouth” caused her to immediately become unconscious, and while in that condition he took her into a near-by field, and had sexual intercourse with her. That she was so completely overcome by the anaesthetic so applied toiler nose and mouth by defendant while they were walking along the street that she scarcely realized the act of sexual intercourse until they were returning to her home, when defendant told her of it and requested her not to tell her family.

Prosecutrix further testified that she missed her menstrual periods due to occur on May 25 and June 25, 1912, and that, her health becoming poor, she informed defendant of her condition, and thereupon he called her to his office and inserted a metal instrument, into her sexual organs.

Two witnesses for the defendant testified that they were driving along the road at the point where prosecutrix claimed she was taken into a field and ravished.. Those witnesses stated that they saw defendant and prosecutrix near the cemetery as they returned home, and according to their evidence defendant did not either chloroform or take prosecutrix into a field,, nor have sexual intercourse with her on that occasion. Three physicians testifying on behalf of defendant, and two on behalf of the State, completely discredit, the evidence of prosecutrix to the effect that she was placed under an anaesthetic while walking along the-street. All five of these physicians concurred in the opinion that there was. no known anaesthetic which would cause a person to immediately become unconscious if applied while the victim was walking in the open air — that it would require from eight minutes to a half an hour to chloroform an adult person while walking or standing erect, if it could be done at all.

The defendant himself denied the alleged act of intercourse on May 15th,' but admitted that he did have sexual intercourse with prosecutrix on June 5th at his office, and twice thereafter at the same place.

The prosecutrix testified that defendant inserted a metal instrument into her private parts at his office twice in the month of June, and again on the night of July 9, 1912. That on July 12, 1912, she took sick and remained in bed a week with a discharge from her womb. She and her mother both testified that during this sickness she had a heavy menstrual flow and passed some pieces of clotted blood the size of a silver quarter. No physician was called during that sickness. The five physicians who testified in the case were unanimous in the opinion that if the prosecutrix became pregnant from the alleged act of sexual intercourse on May 15th the foetus would have been too large to have been concealed in a blood clot the size of a silver quarter on July 12th of the same year.

Doctor Chastain, called as a witness by the State, and Doctor Foster, who testified for defendant, stated that they were called to the home of the prosecutrix to examine her and find out if an abortion had been performed upon her, and that upon such examination they did not discover any evidence of an abortion. The evidence is not clear as to when this examination was made, except that it was in the summer of 1912. Doctor Chastain testified that there was ‘ ‘ a little abrasion of the mucous membrane of her uterine canal— very slight,” and not sufficient to cause her to abort.

There was evidence of three witnesses tending to corroborate prosecutrix that she was ill about July 12, 1912, while four other witnesses testified that she was not ill at that time, but was well and out on the streets almost daily.

There were also two witnesses who testified that prosecutrix admitted that her menstrual flow came at its regular time during the months of May and June, 1912. Another witness, who was present at the preliminary examination when defendant was charged with rape, stated that at said preliminary the prosecutrix swore that her monthlies were regular during May and June, 1912. Her evidence at said preliminary was not preserved in writing.

According to the evidence of prosecutrix defendant only had sexual intercourse with her twice' — once on May 15, 1912, at the time she contends that she was placed under the influence of an anaesthetic, and again on July 9th at defendant’s office; that twice during June, and again on July 9th, defendant placed her on his operating chair and inserted a speculum in her vagina and placed some wet cotton on a metal instrument and inserted it into her private parts. On this point the prosecutrix was interrogated, and gave answers, as follows:

“Q. • Did he tell you what he was doing it for? A. Yes, sir.
“Q. What did he say about it? A. To keep me out of a family way.
“Q. Did you say get or keep¶ A. To get.”

Prosecutrix further testified that the insertion of the instrument into her private parts made her feel weak and sick. On this point defendant denied that he had inserted any instrument into the womb of prosecutrix, but admitted that after he had sexual intercourse with her in his office he inserted into her vagina a uterine forcep with some wet cotton for the purpose of cleansing her sexual organs and preventing conception. That at no time did he have any cause to think that she was pregnant, and that at no time did he insert any instrument into her womb or do anything to her with the intention of causing an abortion.

On the point of using instruments Doctor Chastain, a physician of thirty years’ experience, called by the State, testified on cross-examination that it was sometimes necessary to produce an abortion to save the life of a pregnant woman, in which event it was not usual to place cotton on the instrument to be inserted into the womb, but that cotton was sometimes inserted in the vagina for cleansing purposes.

Some ten witnesses testified that prior to his arrest on July 9th the defendant sustained a good reputation as a law-abiding and moral man. Such further evidence, as is necessary to a full understanding of the case, will be recited in our opinion.

For reversal defendant relies upon (1) the unconstitutionality of the law upon which the judgment of conviction rests; (2) improper remarks of the assistant prosecuting attorney; (3) lack of substantial evidence to support the conviction; and, (4) admission of improper evidence.

OPINION.

The first ground relied upon for reversal is that section 4458, Revised Statutes 1909, under which de-. fendant was convicted, is invalid, because the legislative bill under which said section was ena<Jecl embraces more than one subject, and the purpose of the bill was not clearly expressed in the title of such bill, as required by section 28, article 4, Constitution of Missouri.

The title to said bill (Laws 1907, p. 230) expresses an intent to repeal section 1825, Revised Statutes 1899, and to enact a new section in lieu thereof, so that we must look to the provisions of said section 1825, supra, and ascertain if the same subject has been dealt with in the new section as in the one which was repealed. [State ex rel. Dickason v. County Court, 128 Mo. 427.]

Section 1825, Revised Statutes 1899, denounces as a crime the use of any instrument upon a woman pregnant with a quick child with intent to destroy such child, when the act is unnecessary to preserve the life of the mother. The only material change in said section, as amended in 1907, so far as it relates to the act with which defendant is charged, is that the amendment makes it a felony to unnecessarily use any instrument upon a woman with intent to promote a miscarriage or abortion, whether the woman be pregnant or not at the time such instrument be so used.

It is undoubtedly true that the purpose of both statutes was to prevent criminal abortions, and the General Assembly doubtless believed the best plan to extirpate this character of crimes was to prevent all attempts to bring them about. It is true that section 4458, supra, as amended, creates two separate crimes, to-wit: the “felony of abortion,” and manslaughter by causing the death of a pregnant woman or her child; but the two crimes are so closely related that we are constrained to hold that it was not a violation of the Constitution to include them both in one section; but it would doubtless have created much less confusion if the two crimes had been dealt with in separate sections.

In the recent case of State ex rel. Evans v. Gordon, 245 Mo. 12, the constitutionality of section 11830, Revised Statutes 1909, was challenged on the same grounds as the law now in judgment. The title to the law construed in the Evans ease simply purported to add two new sections to the chapter entitled “Of the Treasury. ’f Prior to that enactment the State Treasurer had not been charged with any duties pertaining to contested elections, and it was urged that as section 11830, supra, was intended to affect election contests by withholding’ the salary of contestees such purpose should have been expressed in the title of that bill, but this court, In Banc, ruled adversely to the contention and upheld the law. If the title to a legislative bill is not misleading, it is seldom that the law will be invalid on the ground that all the purposes of the bill are not fully expressed in the title. [O’Connor v. Transit Co., 198 Mo. l. c. 638-9.]

The designation of the crime of attempting to commit a criminal abortion as the “felony of abortion” is, in a broad, general sense, a misnomer, but it is. not permissible to allow a law to perish because it is not couched in grammatical language. The fact that the specific acts which constitute the crime are set out in the statute makes the legislative purpose so plain that such intent is not greatly obscured by the use of the words “felony of abortion.”

This precise point was raised in the case of State ex rel. v. Shields, 230 Mo. 91, and the issue there determined adversely to the contention of defendant here. We are content to abide the conclusion reached in that case.

II. In his opening argument the special prosecutor said:

“.This girl that never had had a breath of slander against her until this serpent crossed her path—
“By Mr. Jackson: Object to him calling defendant a serpent.
“By the Court: Go ahead.
“To which defendant excépted and now excepts.”

The foregoing remark of the special prosecutor was assigned as error in defendant’s motion for new trial, and is urged here for reversal. Under the peculiar facts of this case, we find that the foregoing remark, receiving as it did the express approval of the trial court, constituted reversible error.

Improper arguments are a class of errors unto themselves, and no hard-and-fast rule can be laid down by which their vicious effects shall be measured. When the evidence of guilt is overwhelming and the verdict is not unusually severe, it is difficult to say that the improper remarks produced any harmful effect. Such was our decision in the case of State v. Baker, 246 Mo. 357, l. c. 376. Quite a different rule arises in cases like the one at bar, where the evidence of guilt is very meager and unconvincing, and the prosecutor undertakes to secure a conviction by arousing prejudice in the minds of the jury through the use of epithets and other improper argument. [State v. Hess, 240 Mo. 147, l. c. 160.]

III. After a careful reading of the record, we are convinced that the evidence is not sufficiently substantial to support the judgment of conviction. The evidence of prosecutrix is discredited, and, I might say, proven to be untrue by other' disinterested witnesses called by the State. That prosecutrix could not have been ravished, as she testified she was, on May 15,1912, is established by the testimony of eminent physicians called by the State — one of them a member of the State Board of Health. Her.-testimony to the effect that she had a miscarriage about July 12, 1912, is likewise disproved by the State’s own witnesses. This leaves the one fact to be determined: whether or not defendant did use instruments upon her with intent to promote a miscarriage or abortion. The defendant admits using some wet cotton with forceps in her private parts to prevent conception. Doctor Chastain, an old and experienced doctor called by the State, testified that a physician seeking to cause an abortion would not place cotton on his probe to be inserted into the womb. That, ordinarily, cotton would only be used for cleansing purposes; so at this vital point the defendant is corroborated, and the prosecutrix again discredited, by the State’s own witnesses. When the prosecutrix was first asked if the defendant stated what his object was when he inserted the instrument into her private parts, .she replied: “To keep me out of a family way.” It is true that when prompted by the prosecuting attorney she testified that defendant stated to get her out of a family way. Defendant’s counsel did not object to the prosecutrix being thus improperly led, and the most important evidence in the whole case placed in her mouth by the prosecuting’ attorney; but we have a right to consider the method by which this evidence was elicited in determining whether, under all the circumstances, it was sufficient to support the verdict.

The prosecuting attorney or the father of prosecutrix caused two eminent physicians to make a physical examination of the prosecutrix to see if an abortion had been performed on her. One of those physicians was summoned by the State, and the other by the defendant, and they both testified that they found no evidence that an abortion had been performed; neither did they find such wounds, bruises or lacerations in or upon her womb as to indicate that an attempted abortion had been committed with instruments.

The record does not contain such substantial evidence that defendant committed the crime of which he was convicted as the laws require. No one can be deprived of his liberty upon evidence which is only strong enough to arouse a suspicion of guilt. [State v. Francis, 199 Mo. 671; State v. Johnson, 209 Mo. 346.] This view renders it unnecessary to consider alleged errors in the admission of evidence. . The case was carefully tried after elaborate preparation on both sides, and we do not think any useful purpose would be subserved by remanding it for a new trial.

We, therefore, reverse the judgment of the trial court and discharge the defendant.

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


source: Caselaw Access Project

author: FARIS, J.

license: Public Domain

text:
    THE STATE v. WILLIAM H. CONLEY, Appellant.
    Division Two,
    February 17, 1914.
    1. INFORMATION: Felonious Infliction of Fatal Wound. Where an information for murder charges the assault was made feloniously, wilfully, deliberately, premeditatedly and of malice aforethought, that the using of the pistol was likewise done feloniously, etc., and that the shooting and striking of deceased with the leaden bullet in and upon a vital part of his body was also done feloniously, etc., and those charges are followed by a proper conclusion, it sufficiently complies with the constitutional guaranty that the defendant is entitled to "demand the nature and cause of the accusation against him,” even though it may fail to affirmatively charge that the giving or inflicting of the fatal wound was done feloniously, wilfully, premeditatedly, etc.
    2. INSTRUCTION: None for Manslaughter: Failure Properly Saved. Where the motion for a new trial specifically urges error on the ground that the court failed to instruct on manslaughter in the fourth degree, and at the time the instructions were given defendant objected and saved an exception because the instructions “did not declare all ■ the law necessary to a proper determination of the case on the issues raised by the evidence,” the point that the trial court erred in failing to instruct on manslaughter in the fourth degree is properly saved for review, although at the time the instructions were given defendant did not specifically object to the failure of the court to give such an instruction.
    3. -: For Manslaughter in Fourth Degree: When Necessary. If the defendant act upon sudden passion, engendered by reasonable provocation, the existence of malice will be negatived, and the killing, though intentional, will be manslaughter in the fourth degree. The intentional killing of another, without malice, on sudden quarrel, or in heat of passion, is manslaughter. So that where defendant and deceased, in amity and peace, in the nighttime, started home from a country dance, and had gone about one hundred and fifty yards when the noise of a fight reached them, and they hurriedly turned back, and on reaching the scene found a relative of deceased on the ground and another on top of him, and deceased told such other to get off and let the relative up, which was done, and instantly trouble arose between defendant and deceased, in the course of which deceased took hold of defendant, shook him, cursing all the time, and began to cut his clothes and hands, if his testimony is to be believed, and also drew forth a pistol, when defendant immediately shot, there was such evidence as required an instruction on manslaughter in the fourth degree.
    Appeal from Ozark Circuit Court. — Ron. John T. Moore, Judge.
    Reversed and remanded.

      Fred Stewart and T. J. Luna for appellant.

      John T. Barker, Attorney-G-eneral, and W. M. Fitch, Assistant Attorney-General, for the State.
    (1) The information is good. Kelley’s New Criminal Law & Practice (3 Ed.), sec. 474; State v. ■Stacey, 103 Mo. 11; State v. Wilson, 172 Mo. 420. (2) The last assignment of error is that the court erred in failing to instruct on all questions of law in the case, and especially in failing to give an instruction on manslaughter in the fourth degree. From a hasty examination of the record it seems that the court would have been justified in giving this instruction. The only question is whether or not the refusal is reversible error. The evidence in this case tends to show that the defendant had learned of threats made against him by the deceased, and it also shows that at the time the fatal shot was fired the deceased and defendant were scuffling, were engaged in conversation, possibly a quarrel. Under this state of the evidence was it mandatory on the court to give an instruction on manslaughter in the fourth degree? State v. McKenzie, 177 Mo. 699; State v. Clay, 201 Mo. 687.
   FARIS, J.

From a conviction of defendant of murder in the second degree in the circuit court of Ozark county, he appeals. The jury fixed his punishment at ten years’ imprisonment in the penitentiary. The information upon which the conviction was had becomes important because of the attack made thereon by defendant in his motion in arrest of judgment. The defendant is neither represented in this court by any brief nor did learned counsel who represented him below appear in oral argument in his behalf. We are left, as best we may, to eke out in the light of the motion for a new trial and the motion in arrest of judgment whatever errors, if any, we may be able to dig out of the record.

By reason of the attack made upon the information it becomes necessary to examine it. Omitting caption and formal parts (touching which there is no controversy), this information is as follows:

“Geo. W. Boone, prosecuting attorney within and for the county of Ozark and State of Missouri, informs the court that William H. Conley on or about the 26th day of December A. D. 1912, at the said county of Ozark and State of Missouri, did then and there in and upon one Ed Conley then and there being, feloniously, wilfully, premeditatedly and of his malice aforethought, did make an assault, and with a dangerous and deadly weapon, to-wit, a revolving pistol, then and there loaded with gunpowder and leaden ball, which he the said William H. Conley, in both his hands then and there had and held, at and against him, the said Ed Conley, then and there feloniously, on purpose and of his malice aforethought, wilfully, premeditatedly and of his malice aforethought, did shoot off and discharge, and with the revolving pistol aforesaid, and the leaden ball aforesaid, then and there feloniously, on purpose and of his malice aforethought, wilfully and premeditatedly, did shoot and strike him, the said Ed. Conley in and upon the face and head of him, the said Ed Conley, giving to him the said Ed Conley, then and there with the dangerous and deadly weapon, to-wit, the revolving pistol aforesaid, and the leaden ball •aforesaid, in and upon the face and head of bim the said Ed Conley one mortal wound, of which mortal wound the said Ed Conley from the 26th day of December, 1912, until the 8th day of January, 1913, in the county aforesaid, did languish, and languishing did live, on which said 8th day of January, 1913, in the county aforesaid, of the mortal wound aforesaid, died; and the prosecuting attorney aforesaid upon his oath aforesaid, does say, that the said William Oonley, him the said Ed Oonley, in the manner and by the means aforesaid, feloniously, wilfully, premeditatedly and of his malice aforethought did kill and murder, contrary to the statute in such cases made and provided, and against the peace and dignity of the State.”

It is urged in at least three assignments of error, in the motion for a new trial, that the court did not properly declare the law; that it refused proper instructions, and specially, that it erred in failing to instruct the jury on manslaughter in the fourth degree. This point is properly preserved in the record, and since it is the only very serious point in the case, we would as well now give the testimony upon which this request of defendant was bottomed:

One Lum Bell, testifying for the State, among other things pertinent to the question of whether or not an instruction for manslaughter in the fourth degree should have been given, said:

“Q. Tell the jury what Ed and Bill were doing? A. Well, they [Owen Driscoll and Aleck Hicks] had a little fight there at the house and we was outside the yard fence by a little fire we had built and Ed and Bill had hold of each other and jerking each other just like they was trying to make each other behave, and g’o home and just then the pistol popped and Ed fell. They were cursing but it didn’t seem like they was cursing each other, but each was cursing the men that was fighting. They seemed to be trying to quiet each other.
“Q. They didn’t seem to be mad at each other? Á. No, sir.”

Sol Moffis, testifying for the State upon the question here, said:

“Q. I will ask you if you didn’t see Ed make a grab or a lick at Bill? A. No, sir, he just took him that way (indicating) and kinda shook him and said he was a fighting s — of—a-b—.
“Q. They talked there something like a half a minute? A. It might have been a half a minute, I don’t think it was over that.
“Q. And then the pistol fired? A. Yes, sir. . . .
“Q. How many minutes after you seen Ed take hold of Bill until the pistol fired? A. He says: ‘Bill Oonley, I am a fighting s — of-a-b—,’ and he about got the words out when the pistol fired.”

Jim Stephens, a witness in behalf of defendant, among other things, said:

“. . . . He turned and kinda threw himself toward Bill and they kinda catched hold of each other and the crowd kinda got between me and them and then they hollowed, ‘Turn me loose and don’t hold me — ’ (interrupting):
“Q. Which one was that? A. It was either Ed or Bill one, I couldn’t tell which, and about that time the pistol fired and Ed fell.”

The above excerpts are all that any witness (except defendant himself, to whose testimony reference will be hereafter made), either for the State, or for the defendant, said which is pertinent upon the contention that an instruction for manslaughter should have been given. It may be with fairness stated that in all of the testimony of the several witnesses, both for the State and the defendant, there is.nothing else which even tends to show that the killing was not either murder in the second degree, or absolutely justifiable ou the ground of self-defense.

The defendant, testifying for himself, which he did at great length, undertook to explain fully all of the facts and circumstances immediately preceding and occurring at the time of his shooting deceased. His testimony touching the facts which bear upon the necessity vel non for an instruction on manslaughter, and upon which such instruction must be bottomed, if it were required to be given, was as follows:

“Ed came back around and took Stephens and jerked him around and swore he was the ‘fightingest s — of-a-b— that ever seen that place,’ and he turned Stephens loose and grabbed me and when he grabbed me it wasn’t until just a little bit until I felt something cutting and tearing my coat, and I says: ‘What are you doing, Ed; my gracious, don’t do that.’ I thought it was a knife and he gave me another blow and I told him still to quit, and I begun trying to get away from him. He had me by the breast of the coat and I finally slapped the knife out of his hand and he cut me right there on the left hand and when I slapped the.knife out of his hand he says: ‘God damn you, I can get you,’ and he got his gun clear up out of the overalls, that is up that way (indicating) and my gun fired and he fell, and then when he fell I rolled him over and there was his gun, and to keep somebody from getting his gun and shooting me as I went away, I took his gun in my left hand and my gun in my right hand and started away.”

There is not another word in the lengthy explanation made of this killing by defendant either as to his intent, his reasons for shooting deceased or any other fact warranting an instruction for manslaughter. In other parts of his testimony he admitted having had, some eight months before, an altercation wj.th deceased, who was his brother, and having then procured a gun with the intent to kill deceased, of which intent, however, he repented (temporarily, at least) before consummating the act; he admitted that he was carrying a pistol on the night that he killed his brother with the object and intention of protecting himself against his brother if he were assaulted; he admitted the former existence of a deep grudge between them,, but avers that he and deceased had made friends.

There is but one other contention made either in. the motion for a new trial or in the motion in arrest.. This complaint is directed toward the admission and rejection of testimony for and against defendant. We-have carefully examined the record and find but four instances where any exceptions were saved to either the admission or rejection of testimony, or to any other-action of the court pertaining to the evidence, where-exceptions were properly lodged. Carefully examining these we find no shadow of merit in any of them and so drop them now out of this discussion.

The facts of the killing are few, but for some reason the witnesses were remarkably obscure in definiteness and detail and clearness of statement. Whether this obscurity is due to the time and place of the homicide, or whether it is due, as a part of it manifestly is, to the inebriated condition of some of the witnesses,, it is difficult to say.

The defendant and the deceased, as has been stated, were brothers. They lived near each other in a little neighborhood called Rockbridge down in Ozark county. The defendant was a blacksmith; the deceased seems to have been a farmer and to have engaged at odd times in logging. Sometime in May, 1912, prior to the killing, which occurred on December 26, 1912,, defendant and deceased had an altercation in which deceased severely cut defendant on the hand with a knife. Following this, at an indefinite date, defendant and deceased apparently made friends, though there-is testimony in the record as to threats having been made in the interim by each of them against the other. On the night of December 26, a neighbor, Jim Riley, gave a country dance at his residence. Both defendant and deceased attended this dance. There was also present in person that ubiquitous guest, “John Barleycorn,” without whom it would seem to be impossible to properly carry on or “pnll off” the genus country dance with the requisite pomp and circumstance. After the dance a fist fight arose between one Owen Driscoll, a relative of deceased, and one Aleck Hicks. This fight occurred a short distance from the house, at a place beyond the yard fence and outside the gate, where a fire had been built; about which fire a number of the guests of the evening had gathered to warm, themselves, and inferably to hold communion with “John Barleycorn.” Prior to the breaking loose of this fight, defendant, deceased and a number of the other guests had started to go home. When the home-going party had reached a point some 150 yards from Riley’s house, the noise of the fight reached them and defendant and deceased turned about and came back. When deceased reached the scene of the fight he found his relative Driscoll on the ground with Aleck Hicks on top of him. Deceased ordered Hicks to get off of Driscoll and let him up, which Hicks did and started to go back to the house. The evidence touching the subsequent events is obscure and utterly irreconcilable. It was night; rather dark, though one witness says the moon was shining, and there was some light from the bonfire which had been built near the scene of the homicide; so that the eyewitnesses did not, and we therefore cannot, obtain a very clear or definite idea as to what actually happened. Some of the witnesses say, as the excerpts from their testimony set out above tend to show, that defendant and deceased engaged in a scuffle; other testimony is, and the great weight of the evidence is, that defendant and deceased merely met and were talking a minute or less before defendant shot deceased, and that this talk between them was not sufficiently loud, or violent, or angry, or long continued to attract any one’s particular attention prior to the shooting.

After the shooting the knife of deceased was found closed and in his pocket; no pistol or other weapon was found on him. or about him; though there is evidence from two or three witnesses, one of whom was offered by the State, that immediately after the shooting defendant had two pistols. Defendant himself says that he took one of these pistols from the deceased after the latter had been shot by him. He gave deceased’s pistol, as he avers in his testimony, to the constable or to the sheriff. Since no denial of this is made by the State, we must assume its correctness, and that in' somewise defendant obtained possession of the pistol of deceased. There is some suggestion in the record, barely sufficient to create a suspicion, because not supported by any very definite evidence, that defendant surreptitiously obtained the pistol of deceased from the latter’s-home shortly before the homicide.

Deceased lived some thirteen days after he was shot, and according to the record, made many statements about the shooting, no two of which agree. None of these statements was admissible as a dying declaration, though all came into the record without objection, and in fact by agreement of the State and defendant, so that no valid objection can be urged here touching their admission.

The above facts will be sufficient in order to make clear the views which we shall express on the two points we deem involved in this case.

OPINION.

I. As foreshadowed above there are but two questions which are sufficiently serious to attract our attention. The first of these is the question raised by the motion in arrest touching the sufficiency of the information; the second is whether an instruction for manslaughter in the fourth degree should have been given by the learned court nisi upon the facts which we have labored to set out fairly.

Touching the first point, that of the sufficiency of the information, there has been in this State much contrariety of opinion. It was held in the case of State v. Williams, 184 Mo. 261, and in a line of cases which followed the Williams case, of which the cases of State v. Woodward, 191 Mo. 617, and State v. Birks, 199 Mo. 263, are illustrative and fair examples, that an information or an indictment such as the one now here before us in the instant case, was fatally defective, for that it failed affirmatively to charge that the giving or inflicting of the fatal wound was done feloniously, wilfully, premeditatedly and of defendant’s malice aforethought (and in a charge of murder in the first degree, with deliberation) .

It is clear to the student of criminal law that there are two lines of cases in this State upon this question. In the case of State v. Arnewine, 126 Mo. 567, which was a conviction for murder in the second degree, an indictment m pari materia and in almost the precise words of the one in the instant case, was held sufficient. Likewise in the cases of State v. Rice, 149 Mo. l. c. 466; State v. Privitt, 175 Mo. 207, and State v. Clay, 201 Mo. 679, informations or indictments similar to the one in the instant case, were held sufficient. The three cases last mentioned were appeals from convictions for murder in the first degree, where „the jury by their verdict, or the law then in force, affixed the punishment at death. The indictment in the case at bar is a copy in all material respects of the indictment in the case of State v. Clay, supra. In the latter case precisely the same objection was made touching the insufficiency of the indictment as might have been made in this instant case if defendant’s counsel had seen fit to urge suggestions upon'us here.

Touching the information here we can not do better than to quote the language of the learned jurist who wrote the opinion in the case of State v. Clay, in which upon a precisely similar state of facts, he said:

“We have carefully analyzed every allegation embraced in the indictment in which the defendant is charged with the highest crime known to our law. We have carefully examined the precedents in cases of this grade arid character which have repeatedly met the approval of this court, as well as the precedents by such distinguished authors as Chitty, Wharton and Bishop, and find that the indictment in this case in every essential particular conforms to those precedents. In State v. Kindred, 148 Mo. 270, the indictment was in precisely the same form as in the case at bar; in fact, no one can read the indictment in the case now before us and escape the conclusion that the pleader was following the precedents as laid down in the Kindred case. Gantt, J., in responding to the challenge of appellant to the indictment in that case, said: ‘No more, certain and specific charge of a deliberate and felonious wounding is to be found in the well-considered precedents in criminal pleading. It fully measures up to the standard approved by Chitty, Wharton and Bishop,’ citing in support of this announcement, 3 Chitty’s Criminal Law, margin page 752; Wharton’s Precedents of Indictments and Pleas, 117a and 117b; State v. Snell, 78 Mo. 240; Com. v. Costley, 118 Mass. 1; State v. Coleman, 5 Porter (Ala.), v. Thomas, 99 Mo. 235; State v. Herrell, 97 Mo. 105; State v. Steeley, 65 Mo. 218; State v. Green, 111 Mo. 585; 2 Bishop’s New Crim. Proc., sec. 541, note 1. In our opinion this indictment clearly embraces every essential allegation necessary to constitute the offense of murder of the first degree and is in such form as has repeatedly met the approval of this court. [State v. Privitt, 175 Mo. 224; State v. Rice, 149 Mo. l. c. 465-66.]”

We are not saying that the great majority of indictments or informations for the crime of murder in either degree do not go further than the one at bar has gone and charge the felonious giving and inflicting of the mortal wound; but we are saying and the decided cases bear us out, both in theory and in principle, that where an' information or an indictment for murder charges that the assault was made feloniously, wilfully, •deliberately, premeditatedly and with malice aforethought ; that the using of the pistol was likewise done feloniously, etc., and that the shooting and striking deceased with the leaden bullet in and upon his body or •other vital place, was also done feloniously, etc., it is in good sense and reason sufficient for a statement of the facts and circumstances to charge such a killing by shooting as will constitute murder in either degree (deliberation being averred-or omitted as the grade sought to be charged may be) and when followed by the proper conclusion and charge of the prosecuting attorney or grand jury upon their respective oaths, sufficiently complies with the constitutional guaranty that the defendant is entitled “to demand the nature and cause of the accusation” against him. [Section 22, article 2, Constitution of Missouri.] For, if it be averred in an information that deceased was feloniously, etc., shot and struck or hit in the head or body with' a leaden ball fired from a gun or pistol, and thereafter and immediately following such averment it be further charged substantially thus: ‘ ‘ Then and there giving to (deceased) . . . with the pistol (or gun) and the leaden ball aforesaid . . . mortal wounds,” it is extremely difficult for the finite mind to avoid the irresistible conclusion, that the infliction of the lethal wound was in some intimate constitutional way, connected with the shooting and striking of deceased by the accused. Having in this behalf naught to avoid except the constitutional Charybdis, supra, we deem it sufficient in grammar and language, and diction, ergo, in law. We hold therefore that the inf ormation in this case is sufficient, and disallow this point to defendant.

II. The motion for a new trial specifically urges error upon the ground that the learned court nisi failed to instruct on manslaughter in the fourth degree. Defendant also, at the time the instructions given by the court were read to the jury, objected and saved his exceptions for that said instructions “did not declare all the law necessary to a proper determination of the case on the issues raised by the evidence.” "While no specific objection was made at the time on account of the failure of the court to instruct on manslaughter in the fourth degree, yet we take it that under the rule announced in the case of State v. Conway, 241 Mo. 271, and since uniformly followed by this court, we must, the statute considered, regard this point properly saved. Therefore, if we find that the testimony showed a state of facts which under the law made it obligatory to instruct on manslaughter in the fourth degree in order that defendant might have the benefit of all the issues fairly raised by the evidence, and of a fair and impartial trial, this case must be reversed. If we do not so find upon the facts when fairly and frankly considered, we must affirm it.

In order to carefully weigh and determine whether the facts as shown by the testimony of the witnesses, which we have set out in our statement of the case, constituted such an assault or indignity as would work or did so work upon defendant here as to lower his act from that of murder in the second degree to that of manslaughter, we may look to our own holdings and definitions, as well as the textbooks treating of manslaughter and discussing the adequacy of the provocation and the conditions necessary to be present in order to differentiate it from murder in the second degree;

This distinction has been pointed ont by this court in the case of State v. Curtis, 70 Mo. l. c. 600, and as we may not assume to add to the clarity of the definitions there contained, we quote:

£ ‘Where there is a willful killing with malice aforethought, that is, with malice and premeditation, but not with deliberation, or in a cool state of the blood, the offense is murder in the second degree. Nor can any homicide be murder in the second degree unless the act causing death was committed with malice aforethought, that is with malice and premeditation. Where there is a willful killing without deliberation and not with malice aforethought, the offense is manslaughter; but whether manslaughter in the second or fourth degree, will depend upon whether the facts bring the killing within the 12th or the 18th sections of the chapter on homicide. [State v. Edwards, 70 Mo. 480.] ”

On the question of the sufficiency, or adequacy of the provocation, a well-known textwriter in an able review of this identical question, says:

“A provocation is deemed to be adequate, so as to reduce the offense from murder to manslaughter, whenever it is calculated to excite the passion beyond control. It must be of such a character as would, in the mind of an average just and reasonable man, stir resentment likely to cause violence endangering life, or as would naturally tend to disturb and obscure the reason and lead to action from passion rather than judgment, or to create anger, rage, sudden resentment or terror rendering the mind incapable of reflection.” [Wharton on Homicide (3 Ed.), sec. 172.]

Our own court, dealing with the matter of sufficiency of provocation somewhat specifically rather than generally, said in the case of State v. Edwards, 70 Mo. l. c. 483, that:

“Any assault made with violence, or circumstances of indignity upon a man’s person, as by pulling him by the nose, if it be resented immediately by the death of the aggressor,' and it appears that the party acted in the heat of blood upon that provocation, will reduce the killing to manslaughter. The intentional killing of another without malice on sudden quarrel or in heat of passion was manslaughter. [1 East’s Pleas of the Crown, 233-234-235; 4 Bl. Com. 191; 2 Bishop’s Crim. Law, 676; State v. Starr, 38 Mo. 270; State v. Holme, 54 Mo. 165.]”

When we consider the facts in proof that defendant in company with deceased, just prior to the sudden scuffle (as the witnesses put it, and the assault with both a knife and a pistol as the défendant testifies) which ended in the shooting of deceased, was on his way home; that so far as appears amity and peace prevailed between them; that upon the up-coming of a sudden affray between the relative of deceased and another, both defendant and deceased turned back and came hurriedly to the scene of this fight; that deceased took part in the difficulty at once by compelling Hicks to let deceased’s Idnsman, Driscoll, up, and that instanter trouble arose between deceased and defendant, in the course of which deceased as aggressor took hold of defendant, shook him, cursing all the while, and, to quote defendant, began cutting his clothing and hand with a knife, we think the jury should have been instructed on manslaughter in the fourth degree. [State v. Banks, 73 Mo. 592; State v. Gee, 85 Mo. 647; State v. Partlow, 90 Mo. 608; State v. Wensell, 98 Mo. 137; State v. Hermann, 117 Mo. 629; State v. Brown, 188 Mo. 451; State v. Gordon, 191 Mo. 114; State v. Weakley, 178 Mo. 413; State v. Richardson, 194 Mo. 326; State v. Goldsby, 215 Mo. 48; State v. Wilson, 242 Mo. 481.] Many of these cases are, upon the facts, substantially upon all-fours with the case at bar, and in all of them the necessity of instructing for manslaughter in the fourth degree is either ruled upon directly, or instructions for that grade of homicide held proper upon the facts in proof.

In the case of State v. Weakley, snpra, at page 423, this court in discussing some of the legal differences between murder in the fourth degree, as well as some of the provocations which are deemed sufficient to reduce homicide from murder to manslaughter, said

“It is clear from the testimony that the killing was intentional. The defendant was therefore guilty, under the evidence, of murder in the second degree, or of manslaughter in the fourth degree,’unless the homicide was justifiable. It has been said that under our statute manslaughter in the fourth degree includes every homicide not justifiable or excusable which was manslaughter at common law, and which is not excusable or justifiable, or is not declared by statute to be manslaughter in some other degree. [State v. Edwards, 70 Mo. 480; Sec. 3477, R. S. 1889; State v. Watson, 95 Mo. 411.] Therefore, ‘if the party act upon sudden passion, engendered by reasonable provocation, the existence of malice will be negatived and the killing, though intentional, will be manslaughter in the fourth degree.’ [State v. Curtis, 70 Mo. 594.] But in order to reduce the offense from murder to manslaughter, the killing must be done in a heat of passion on a reasonable provocation, without malice and without premeditation, and under circumstances that will not be justifiable or excusable homicide. And the passion which will reduce homicide to the grade of manslaughter is an excited state of the mind produced by some lawful provocation, such as a blow, or an assault of any kind upon the person. [State v. Ellis, 74 Mo. 207.]
“It was the duty of the court to instruct the jury upon all questions of law arising in the case which were necessary for their information in giving their verdict (See. 2627, R. S. 1899), and as there was evidence tending to show that the deceased assaulted the defendant and struck him over the head with a revolver just before defendant shot him, which if true was certainly reasonable provocation, as it must have tended to arouse that heat of passion which negatives malice, and whether it did so or not should have been submitted to the jury, and the court erred in failing to so do, when its attention was called to the fact that it had failed to instruct the jury upon all the law of the case under the evidence.”

For the failure of the court to so instruct the jury upon the facts here, this case must be reversed and remanded, to be retried in accordance with these views.

It is so ordered.

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


text:
    THE STATE v. WALTER CASTLETON, Appellant.
    Division Two,
    February 17, 1914.
    1. INDICTMENT: Use of Word Not in Statute: Attorney: Embezzlement. The use of the word “attorney” in an indictment charging defendant “as the agent, attorney, collector and servant” of prosecutrix with embezzling her money, although that word is not used in the statute, did not mislead him to his prejudice; and where the evidence would have been the same with the word omitted, it cannot be seen how its use could prejudice him.
    2. EMBEZZLEMENT: Evidence: Value of Stock. The admission of evidence of the value of stock in an electric power company, which defendant says he traded to prosecutrix for the note he is charged with embezzling, and which she says he tried to sell to her and she refused to trade or buy, is not error.
    3. -: -: Genteral Objection. A general objection that proffered testimony is “incompetent, irrelevant and immaterial” is insufficient to call the trial court’s attention to its inadmissibility.
    4. -: Receiving Note as Bailee: Convicted as Collector and Agent. Where the evidence both for the State and the defendant is that defendant never was employed to collect or sell prosecutrix’s note, and demonstrates that he came into pos•session of it as a mere naked bailee, he could not convert it so as to be guilty of embezzlement under Sec. 4550, R. S. 1909,' nor can bis coivviction under that section stand, for it denounces an embezzlement by an agent, collector or servant. Section 4552 denounces an embezzlement by a bailee, and while it fixes the same punishment as does section 4550, the General Assembly has seen fit to make a distinction between embezzlement committed by a bailee and embezzlement committed by an agent, collector or servant, and the court must construe the law as it finds it.
    5. -: Charged with Embezzling Money: Proof of Embezzling Other Property, Prosecutions for embezzlement of money cannot be sustained by proof of the embezzlement of other property. Where defendant is charged' with embezzling money which was the proceeds of a note — not with embezzling the note itself — he cannot be convicted on proof that he embezzled the note.
    6. -: -: -: Constitutional Mandate. The constitutional provision declaring that the accused shall have the right to “demand the nature and cause of the accusation” is not complied with by simply charging a defendant with acts similar to, or as heinous as, those upon which his conviction is sought. The constitutional mandate is not technicality; it is a matter of substance which cannot be disregarded or brushed aside.
    7. PLEDGE: Right of Pledgee to Sell: Unindorsed Note. In the absence of a special authority or agreement permitting him to do so, a pledgee has no right to sell commercial paper held as a pledge. A written authorization that a certain note “be held as collateral security for this note” does not authorize the pledgee to sell the unindorsed collateral note, and hence he could not convey such power to the defendant to whom he delivered the note.
    Appeal from Jackson Criminal Court. — Eon. Ralph 8. Latshaio, Judge.
    Beversed and remanded.

      E. E. Eairgrove for appellant.

      John T. Barker, Attorney-General, and Ernest A. Green, Assistant Attorney-General, for the State.
    (1) The fact that the word “attorney” was interpolated into the information between the words “agent” and “collector” does not render the information defective. The term “agent,” as used in Sec. 4550, R. S. 1909, includes the relation of attorney. State v. Gibhardt, 219 Mo. 708; State v. Thomson, 155 Mo. 300; State v. Cuimingham, 154 Mo. 161; State v. Brown, 171 Mo. 477. .(2) 'With reference to the proposition that the allegation in the information is the embezzlement of money and the evidence showed the embezzlement of a note, the State insists that this is a ■mistaken theory of this case. The power of attorney gave defendant the absolute authority to receive this note from Allen, and his subrogated' interest in the note gave him the right to sell it and to pay himself out of'the proceeds thereof the sum of $265.71, advanced by him to Allen on account of Miss Cole. The defendant, being Miss Cole’s agent in thus selling the note, was vested with authority to receive the proceeds of the note, but in appropriating the money realized therefrom to his own use, he was guilty of embezzlement. State v. Bacon, 170 Mo. 162; State v. Mispagel, 207 Mo. 575. The money realized by defendant from the sale of this note belonged to the prosecuting witness, Ellen Cole, and she was entitled to the possession of it after the $265.71 due from her to defendant was deducted. When the defendant appropriated it to his own use without Miss Cole’s consent he was guilty of embezzlement.
   BROWN, J.

Charged with and convicted of embezzling $2948.75 as the agent, attorney, collector and servant of one Ellen Cole, defendant appeals from a judgment fixing his pimishment at four years in the penitentiary. At the date of the alleged crime defendant was an attorney of Kansas City, Missouri, and Miss Ellen Cole, the prosecutrix, a spinster of the same city. She will hereafter be designated as the prosecutrix.

On December 27, 1910, prosecutrix employed defendant to collect a note of $140 executed by one Ridge-way, and paid defendant $10 for bis contemplated service in that behalf. The Ridgeway note, together with two other notes, one for $100 and the other for $3350, were, at that time, in the hands of one George R. Allen, her former attorney, who was then in Topeka, Kansas.

These notes had not been indorsed to Allen, but Re claimed that prosecutrix owed him $265.71, and demanded that his claim be paid before surrendering possession of the notes. The defendant paid to Allen the amount of his claim against prosecutrix. She seems to have understood this payment or advancement as a loan to her.

On January 30, 1911, she gave the defendant the following power of attorney, or order to Allen, her former attorney:

Know All Men. by These Presents, That I, Ella Cole, of the city of Kansas City, State ■ of Kansas, have made, constituted and appointed, and by these presents do make, constitute and appoint W. E. Casleton, true and lawful attorney for me in my name, place and stead to receive from George R. Allen of Kansas City, Kan., all papers, negotiable instruments, or other documents which the said Allen now holds and which are my property; and further to execute to said Allen receipt for same, which said receipt shall be full evidence as though I had received them myself, and further.
Dated this 30th day -of January, 1911.
ELLEN COLE.

The note for $3350 was secured by deed of trust on real estate situated in the State of Kansas, and forms the basis of this litigation. The two smaller notes may be dropped from further consideration. It will be observed that the $3350 note is not specifically named in the above quoted order or power of attorney which prosecutrix signed authorizing defendant to receive “all papers, negotiable instruments or other documents ’ ’ held by Allen. Prosecutrix contends that at the time she signed the order to Allen, her former attorney, she did not know that the $3350 note was in his possession, and that she did not intend to deliver that note to defendant. When asked if she at any time turned the $3350 note over to defendant, or authorized him to get it, she replied: “No, sir, I can raise my hand up to God and tell you I never did, and that is saying a good deal.” Defendant testified that at the time the order to Allen was signed by prosecutrix (on January 30, 1911), he made a trade with her whereby he became the owner of the $3350 note— that he traded her 15,000 shares of stock in an electric power company, and gave her his individual note for $300 in consideration of her $3350 note, and that also, as a part of the consideration of that trade, he agreed to pay her five per cent interest on $3350 until her stock in the power company should become worth $5000.

On February 6, '1911, defendant forwarded to Allen the order or power of attorney, hereinbefore set out, together with a check for $265.71, accompanied by the following letter:

Feb. 6, 19 m
Hon. George It. Allen,
House of Reps., Topeka, Kan.
Dear Sir: Enclosed find certified check for $265.71 fa-cover amount due you in the Cole matter.
I wish you would please arrange for me to get the abstract to the property; if the Commercial National Bank has it, please execute an order that I may get it.
Enclosed you will also find power of attorney executed by Miss Cole to me which will be your authority for delivering these notes to me; she has also executed to me, an assignment in words as follows:
To W. E. Oasleton: I hereby assign all my right, title- and interest in and to certain promissory notes which are now-held by Geo. R. Allen of Kansas City, Kan., for $3,350.00,. signed by Justice Anderson and payable to Ellen Cole. Dated’ this 30th day of January, 1911.- Signed, Ellen Cole.
Trusting all matters are satisfactory and to receive notes,, etc., by return mail, I remain
Very truly yours,
W. E. CASLETON.

In response to the foregoing letter, and the order therein inclosed, Mr. Allen forwarded to defendant all the papers of prosecutrix held by him, including the note for $3350.

Defendant testified that a few days after this note was received he presented it to prosecutrix and she indorsed and transferred it to him by signing her name on the back thereof, and that the land by which the note was secured being situated in Kansas, where an assignment of the deed of trust was necessary to make the transfer of the note effectual, prosecutrix duly signed and acknowledged a transfer of the deed of trust.

Prosecutrix testifies that she did not purchase any stock of defendant; that she did not sell or trade the $3350 note to him; and that she did not indorse her name on the note, or sign or acknowledge the transfer of the deed of trust given to secure the note.

There was evidence tending to corroborate both the prosecutrix and defendant at all points where their evidence conflicts. The conclusions we have reached render it unnecessary to set out all of such evidence in this opinion.

The following facts are undisputed:

That the note for $3350 was not indorsed by the prosecutrix when defendant received it into his possession; that on February 27,1911, defendant borrowed $500 from a bank in Kansas City, giving the $3350 note originally owned by prosecutrix as security for said loan; that a few months later he borrowed $1500 from another bank in the same city, again using the same collateral as security; and that in May, 1912, the defendant sold the $3350 note outright for $2950, and that he appropriated the proceeds of the sale to his own use. Defendant, further testifying in his own behalf, stated that in hypothecating the $3350 note and in selling it he was not representing the prosecutrix as agent, attorney, collector or servant, but was acting solely for himself as the owner of said note.

Such further facts as are necessary to an understanding of the issues to be determined by us will be noted in our opinion.

Among the grounds urged for reversal are: (1) insertion of the word attorney in the information, when said word does not appear in section 4550, Revised Statutes 1909, upon which this prosecution is based; (2) the admission of improper evidence; and (3) that the verdict is contrary to the evidence.

OPINION.

I. As we have concluded that the'judgment must be reversed for reasons expressed in another paragraph of this opinion, we will consider only such assignments of error as may point the way to a correct retrial of the cause.

The insistence that defendant was prejudiced by charging him with the crime of embezzlement as an “attorney” we are constrained to treat as v frivolous. The word attorney is not found in that section of'the statute under which defendant was prosecuted, but its insertion did not mislead defendant to his prejudice. [Section 5115, R. S. 1909.] The evidence could have been, and probably would have been, the same with the word attorney omitted as it was with that word unnecessarily added. The contention, ore tenus, that the public press of Kansas City has abused and maligned attorneys as a class until juries of that locality believe that attorneys .generally are dishonest, is a matter of which we cannot take judicial notice — not yet, at least. There was one prominent attorney of Jackson county who recently tried to resign the position of attorney to this court, but we are not aware that he did so because attorneys in his county are personae- non gratae among honest men.

II. The admission of evidence tending to prove that the stock of the power company was worthless in January, 1911, and that defendant received a large amount of such stock for nominal serv^ceS) was error as it tended to corroborate prosecutrix in her statements that defendant tried to sell her some of the stock and that she refused to buy or trade for it. It is more probable that she would decline to purchase or trade for worthless stock than if it had possessed substantial value.

III. However, for the purposes of this appeal, the admission of said evidence would not constitute error, because when evidence of the worthlessness of .the stock was offered defendant’s counsel merely objected to same on the ground that said evidence was “incompetent, irrelevant and immaterial.” We have ruled times almost without number that such a general objection to evidence is insufficient to call the trial court’s attention to its inadmissibility. [State v. Pyles, 206 Mo. 626, l. c. 632; State v. Crone, 209 Mo. 316, l. c. 330; State v. Colvin, 226 Mo. 446, l. c. 490; State v. Ferrell, 246 Mo. 322, l. c. 331; and State v. Wellman, 253 Mo. 302.]

IV. The insistence of defendant that the verdict is contrary to the evidence is equivalent to urging that there is no substantial evidence to support the verdict. We shall so,treat it. The testimony of prosecutrix is that she never authorized defendant to receive the $3350 note. So far as her evidence goes defendant was not empowered by her in any capacity to sell or otherwise dispose of the $3350 note. His employment was to collect the smaller notes, and the receipt which he gave prosecutrix for the $10 fee paid Mm so indicates. Defendant’s testimony is to the effect that the only transaction he had. with prosecutrix regarding the $3350 note was as a purchaser or assignee thereof. The letter which defendant wrote to Allen, found in our statement of the facts, contains a copy of an alleged assignment of the $3350 note, which assignment purports to have been made January 30, 1911, which was before the note came into defendant’s possession.

So that, according to the evidence of both parties, defendant never was employed by prosecutrix to either collect or sell the note. It is somewhat strange that the learned prosecuting attorney should charge the defendant with receiving money as the agent of the prosecutrix, when she swears so vehemently that she did not grant him authority to even receive the note into his possession. However, we can only deal with the case as it comes to us, not as it might have been if defendant had been charged with a different offense.

If we set aside and disregard the evidence of both prosecutrix and defendant, it appears that the $3350 note came into defendant’s possession by the mere inadvertence of prosecutrix in giving a general order to Allen, her former attorney, to turn over to defendant all her papers, when she did not at that time understand that Allen was in possession of her $3350 note.

The order to Allen only authorized defendant to. receive and receipt for the note, nothing being said about selling or collecting it, or granting a pledge upon it; so the most that can be said of defendant’s possession under that order is that it constituted him a mere bailee, and as such bailee he could not sell or convey title to same. [Hendricks v. Evans, 46 Mo. App. 313; Sowden v. Kessler, 76 Mo. App. 581.]

Being a mere naked bailee of the note he could' not convert it so as to be guilty of embezzlement as. denounced by section 4550, Revised Statutes 1909, under the rule announced by this court in the case of State v. Meyers, 68 Mo. 266. That case is a construction. of said section 4550, as found in Wagner’s Statutes of 1872, section 35, p. 458, where it appears in the same form as in Revised Statutes 1909. If the prosecution had been under section 4552, Revised Statutes 1909, prohibiting embezzlement by bailee, there would be some ground for contending that the evidence of Mr. Allen would furnish support for a charge of embezzlement of the note by a bailee. [State v. Betz, 207 Mo. 589.] It seems a little strange that there should be a difference between an embezzlement committed by bailee, and the same offense when committed by an agent, servant or collector, particularly since the punishment for both offenses is the same. However, the General Assembly has so written the criminal law, and it is our job to construe it as we find it — not as we think it ought to be. The record is barren of anything showing that defendant received the proceeds of the $3350 note as the agent, collector or servant of the prosecutrix, hence the conviction is without support in the evidence.

V. There is, however, another difficulty in the way of upholding the conviction in this case. The defendant is only charged with embezzling money which was the proceeds of a note — not embezzling the note itself. It has long been the rule of this court that prosecutions for embezzlement of money cannot be sustained by proof of the embezzlement of other property. [State v. Schilb, 159 Mo. 130, l. c. 142; State v. Mispagel, 207 Mo. 557, l. c. 574.] In the latter case it was expressly held that a charge of embezzling money was not sustained by proof of the embezzlement “of a check, draft, bond or other property.” This rule seems rather technical, but section 22, article 2, of our Constitution ordains that in criminal prosecutions the accused shall have the right “to demand the nature and cause of the accusation.” This constitutional provision has uniformly been held to require such accuracy in criminal pleadings that the accused will not be misled in making his defense. [State v. Pickett, 174 Mo. 663; State v. Murphy, 141 Mo. 267; State v. McChesney, 90 Mo. 120.]

The Constitution is not complied with by simply charging a defendant with acts similar to or as heinous as those upon which his conviction is sought. The State, at its peril, must find out what particular criminal law the defendant has violated and prosecute him accordingly. I believe that technicalities should be disregarded, but a constitutional mandate prescribing that a defendant shall be notified by the indictment of the acts for which the State seeks to take away his liberty is not a technicality. It is a matter of substance which cannot be brushed aside or disregarded.

VI. The learned Attorney-General insists that defendant possessed the right to sell the $3350' note of prosecutrix for the reason that by paying Allen, her former attorney, $265.71, he became subrogated to the lien which Allen held as a pledgee of ^ie note, and that all moneys received by defendant for said note in excess of the pledge were the property of prosecutrix, citing State v. Bacon, 170 Mo. l. c. 162; and State v. Mispagel, 207 Mo. l. c. 575. In the two cases last cited there was no question about the agency of Bacon and Mispagel, and that they possessed the right to receive the funds they were charged with embezzling. We are not able to see how the facts here, or the law in the cases cited, sustain the proposition. The only evidence of a pledge of the $3350 note to Allen is contained in the following note introduced by defendant:

Kansas City, Kan. 3-22-1910.
$100.00
Ninety days after date I promise to pay to the order of Geo. R. Allen, one hundred dollars interest at eight per cent per annum from date. 1 authorize note and mtg. of J. C. Anderson to he held as collateral security for this note. Value received. ELLEN COLE.

If the above note for $100 created a pledge on the nnindorsed $3350 note of prosecutrix, there is no evidence that Allen sold or transferred such pledge to defendant. Both defendant and prosecutrix' treated the payment from defendant to Allen as a loan to prosecutrix, which paid off Allen’s claims. The prosecutrix says it was a loan, and it will he noted that defendant’s letter to Allen of February 6, 1911, does not ask for a transfer or assignment of any note or other indebtedness. It says that the remittance is “to cover amount due you in the Cole matter,” thus pointing to a payment, not to the purchase of a pledge.

But if it be conceded that the payment of the $265.71 by defendant to Allen operated to transfer to defendant the lien of a pledge held by Allen upon the $3350 note, there is still no evidence to show that Allen even possessed the power to sell the note, which had not been indorsed by the prosecutrix. Possessing no power to sell, Allen could not convey any such power to defendant, even if he had attempted to do so, which he did not.

Regarding the right to sell pledged property, the rule is announced in 31 Cyc. 839, as follows:

“In the absence of special authority or agreement permitting him to do so, a pledgee has no right to sell commercial paper held as pledge, either at public or private sale, and an unauthorized sale by him constitutes a conversion of the instrument. The power to sell, may, however, be given the pledgee by express agreement, although even in such case notice of the time and place of sale must be given the pledgor.”

The same rule has been announced by this court in the case of Richardson v. Ashby, 132 Mo. 238.

There being no substantial evidence to support the verdict, the trial court should have sustained defendant’s motion for new trial, and for its failure so to do we reverse the judgment. But as the State may be able to produce other or different evidence upon a second trial, or may wish to place defendant on trial for a different offense, we will remand the canse for further proceedings not inconsistent with the views herein expressed. It is so ordered.

Walker, P. J., and Paris, J., concur.