author: GANTT, P. J.

text:
    THE STATE v. CHARLES ELSCHINGER, Appellant.
    Division Two,
    November 23, 1909.
    1. BILL OF EXCEPTIONS: Filed After Expired Time: Nuno Pro Tunc Order. An order made on May 5th, granting defendant ninety days in which to file a bill of exceptions, expired on August 3rd, and the court had no jurisdiction to make an order on August 5th extending the time, and no jurisdiction at the September term to make a nunc pro tunc order as of the date of August 5th extending the time to the 5th day of the October term in which to file his bill. And however serious the consequences may be to defendant, the court cannot consider his exceptions.
    2. NO EXCEPTIONS: No Error in Record. Where there is no bill of exceptions that can be considered on appeal, because not filed in time, and there is no error in the record proper, the only duty of the appellate court is to indulge the presumption that the trial court performed its duty and gave defendant a fair • and impartial trial.
    Appeal from St. Louis City Circuit Court. — Hon. Geo. H. Williams, Judge.
    Affirmed.

      Henry ill. Walsh for appellant.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
    (1) The indictment is sound. In all hut the names used it is a rescript of that approved in the cases of State v. Gray, 172 Mo. 434; State v. McNamara, 212 Mo. 156. It is practically identical with the form of the indictments approved in the cases of State v. Evans, 158 Mo. 592; State v. Wilson, 172 Mo. 423. (2) The arraignment and plea, the oath and impanelment of the jury, the verdict, and sentence all appear in proper form in the record. For two reasons the bill was filed ont of time: 1. There was no valid basis for the nunc pro tunc entry of September 5, 1908. A new term of court had intervened since the first extension of time, and the court’s inherent power to amend and revive its records was gone. State v. Libby, 203 Mo. 599. Further, the affidavit of defendant’s counsel is not sufficient to support a nunc pro tunc entry of this character. A minute of the judge or clerk, made at the time, or a paper in the case is required. State v. Libby, 203 Mo. 597. It may further be observed that the nunc pro tunc order is conditional, and no evidence of the fulfillment of the condition appears in the record. (2) Conceding the validity of the nunc pro tunc order, it is insufficient. The time for filing the bill of exceptions expired August 3, 1908. The order entered upon affidavit of defendant’s counsel is merely an effort to resurrect, on August 5, 1908, a right to file, which perished on August 3d. The order provides that the bill may be filed, and that “when so filed the same is to have the same force and effect as if filed on the fifth day of August, 1908. ’ ’ The nunc pro tunc order, at the most, could have no greater force than an order originally entered on the date fixed in the nunc pro tunc entry. And an order entered on August 5th, if it had actually been entered then, would have availed defendant nothing, since the time for filing the bill under the original extension expired August 3, 1908. State v. Eaton, 191 Mo. 153; Bank v. Barber, 145 Mo. 366. (3) For the reasons suggested the bill was not filed in time and cannot be considered. Matters of exception not being reviewable, and the record proper being free from error, the judgment should be affirmed. State v. Foley, 214 Mo. 309; ■State v. Plamilton, 214 Mo. 315; State v. Long, 214 Mo. 324.
   GANTT, P. J.

The defendant was indicted on the 19th day of March, 1908, by the grand jury of the city of St. Lonis, for murder in the first degree of Louisa Elschinger, his wife.

On the 24th of March, 1908, the defendant was duly arraigned and entered his plea of not guilty, and the cause was continued to the next term of court. At the April term, 1908, he was put upon his trial and convicted of murder in the first degree, and his punishment assessed at imprisonment in the penitentiary for life. Motions for new trial and in arrest of judgment were duly filed and overruled and the defendant sentenced in conformity with the verdict. From that sentence he has appealed to this court.

On May 5, 1908, defendant was given ninety days in which to file his bill of exceptions. No bill of exceptions was filed within the time granted and it appears that on September 5, 1908, the following order was made and entered upon the record of the circuit court.

“Saturday, September 5th, 1908.
“State of Missouri, vs. Charles Elschinger.
‘ ‘ MURDER IN THE EIRST DEGREE.
“Now on this day it appearing from the affidavit filed by the attorney for the above-named defendant, filed this 5th day of September, 1908, that the clerk of this court inadvertently failed to enter an order of this court made on the 5th day of August, 1908, granting additional time in which to file bill of exceptions in this cause. It is now hereby ordered by the court, subject to the action of the court, upon the application for amendment of record concerning the bill of exceptions herein, that the following order be entered nunc pro. tunc and for the said date, to conform with the facts and proceedings in this cause, to-wit: It is this day ordered by the court that the time heretofore granted defendant to file his bill of exceptions herein, on or before the fifth day of August, 1908, be extended up. to the fifth day of October, 1908, in the October term, 1908, of said court, and that when so filed the same to have the same force and effect as if filed on the fifth day of August, 1908. ’ ’

What purports to be the bill of exceptions in the cause was filed on October 5,1908. If the bill of exceptions shall be considered as a part of the record, it appears that several of the jurors upon their voir dire examination, stated that under no circumstances would they return a verdict assessing the death penalty. Thereupon on the challenge of the State these jurors were excused and the defendant excepted to the action of the court.

The evidence on behalf of the State tended to show that the defendant, for about three months prior to the 6th of March, 1908, the date of the homicide, had been conducting a. saloon at 738 South Broadway, in the city of St. Louis. The defendant and the deceased were married in November, 1907, and at the time of the killing of defendant’s wife, they were living in rooms above the defendant’s saloon. They each had children by former marriages. The defendant had invested eight hundred dollars of the money received by his wife from the life insurance of her former husband, in his saloon business. For some time before the date on which the killing occurred, defendant and deceased had not lived harmoniously. Different witnesses testified to assaults which the defendant had made upon his wife. It seems that differences arose between the defendant and the deceased concerning the repayment to her of her money, which defendant was using in his saloon business. About two days before the homicide the defendant’s wife, apparently in an effort to recover a portion of her money from her husband, took $220 from the saloon. This' precipitated a quarrel, in which the defendant threatened to put his wife out of the house, but refused to permit her to remove her furniture. There was also evidence that on this occasion the defendant assaulted and heat his wife, and on the following morning another difficulty arose in which the defendant again assaulted his wife. On the day before the homicide, the defendant and his wife engaged in an altercation in their rooms, in which it appears that the deceased assaulted the defendant with some cooking utensils. They were separated by the bartender, who took the defendant down in the saloon and they were followed by the deceased who attempted to attack the defendant with a cleaver. She was disarmed and the pair engaged in a fight which resulted in the arrest of both. This was about nine o ’clock of the night of March 5th. The evidence tended to show that the deceased,, at this time, bore numerous marks of violence on her person. She gave bond and was released at once, but the authorities held the defendant, despite the fact that bond had been given for him, for fear he would renew the trouble. On the next morning the defendant was. released, when he said, “I’ll fix her for this.” This was about 5:45- on the morning that his wife was killed. At 7:30 on the same morning, defendant secured and had ready a moving van, and he and his wife engaged in a heated argument about his right to remove-the saloon stock. Advised by the officer that both parties would be arrested if the disturbance did not cease,, the defendant left the saloon and proceeded to a pawn shop on Sixth street and attempted to purchase a revolver, but was unsuccessful. He returned to his saloon, drank some more whisky, and he and deceased went upstairs to their apartments. In a few moments thereafter, shots were heard in the rooms above the-saloon. When the officers, attracted by the shots, reached the apartments, they met defendant coming out. of the parlor with pistol in hand. He was at once disarmed and saying, “Louisa is dead and I am too,” fell to the floor. His wife was lying in the parlor and dead when the officers arrived. The pistol bullet had entered her head just below or behind the left ear. The defendant was entirely uninjured. Three bullet holes in the ceiling were discovered.

The defendant made a statement in which he said that when he went upstairs just before the shooting, he went into the front room and his wife came in and started after him with a butcher knife in her hand, and she took the gun, and he tried to get it from her, and she fired one shot at him, and that is all he remembered. No other weapon was found in the rooms or on the defendant, except the pistol which was taken from him. All five chambers of the pistol were empty.

There was also evidence on the part of the defendant which tended to show that deceased after being released on bond the night before she was shot and killed, went into the saloon and secured her husband’s pistol, which, the evidence tended to show, was, if not the same, like the one with which the shooting was done. Another and different revolver, produced by the defendant’s witness, Buth, was more positively identified as the one taken by the deceased from the saloon. This witness found this revolver in a stove which he had bought from among deceased’s effects. There was also evidence of assaults by the deceased upon the defendant the night before the shooting.

Defendant in his own behalf testified that the deceased had, on the 5th of March, taken all his ready money, and when he asked for it in order to pay his bills, she declared she was going to keep it. At supper time on this day a difference arose as to whether deceased should make tea instead of coffee, and she became very angry. There was a fire in the range and the defendant insisted that she should utilize it for cooking and turned out the gas stove, which was also burning. Deceased relit the gas and defendant extinguished it again, whereupon she struck the defendant with a pan and a poker. Immediately thereafter the deceased made an assault upon him with a. cleaver in the room below. He testified as to his arrest and detention on the night of the 5thi, and on his return to the saloon in the morning he found the money that was in the drawer to be taken and he asked his wife for change to use that day, and she refused to let him have it; that on going upstairs to prepare for the trip to the court in the matter of the disturbance of the night before, his wife attempted to assault him with a butcher knife. He declared that when he then told his wife that she could stay in the rooms and he would leave, that when he turned to get some articles of dress, she struck him in the face with some instrument and he heard a shot, which passed close to his mouth; that a second shot passed near his head; “that he could not hear nothing more; that he did not know nothing at all, dropped, didn’t know nothing, swimming in the head and everything. ’ ’

Defendant denied attempting to purchase the revolver on the morning of the shooting. Defendant also offered some testimony tending to show that his reputation was good.

I. The gravity of the offense and the character of the sentence compel the serious consideration of the court of the proposition which meets us at the very threshold, to-wit, that no matters of exception are reviewable for the reason that the bill of exceptions was not filed within the time allowed by the order of the court, and hence, legally considered, are no part of the record. By reference to the statement, it will be observed that on the 5th day of May, the court by its order of record, made on the day of the granting of the appeal to this court, allowed the defendant ninety days to file his bill of exceptions. Now excluding the 5th of May, the day on which the order was made, ninety days from that date expired on August 3, 1908. The attempt made on September 5, 1908, to save the lapse of time by the entry of a nunc pro tunc order purporting to have been made on August 5,1908, extending the time to October 5, 1908, was utterly futile for the reason that the order, even if it had been made originally on August 5th, would have been inoperative and ineffective to extend the time because the time had lapsed on August 3rd, and nothing that the court could do on August 5th, the term having’ lapsed, could have imparted any life whatever to the order.

In State v. Eaton, 191 Mo. l. c. 156, it was said: £ £ It is a fundamental principle that courts can exercise judicial functions only at such times and places as are fixed by law, and that the judges of courts can enter no orders in vacation except such as are expressly authorized by statute. [4 Ency. Pl. . . . It is of grave importance that the records of our courts shall be kept so that all parties interested therein or affected thereby may be able to ascertain by application to the clerk when a judgment has become final or when exceptions have been or will be filed if in vacation.”

In State v. Britt, 117 Mo. l. c. 586, it was said: “When the forty days given by the court had expired, the judgment of the circuit court became final; neither the court or the parties had any power, in the absence of an order or stipulation extending the time, to take any other steps in the cause. [State v. Seaton, 106 Mo. 198; State v. Mosley, 116 Mo. 545; State v. Apperson, 115 Mo. 470.]”

These cases all concur in holding, what it would seem on principle would require no citation of authority to show, that when the time granted by the court had elapsed on August 3, 1908, it was entirely out of the power of the court or the parties to invest the court with authority to extend the time for filing the bill of exceptions.

This view of the record obviates any necessity for considering the validity of the nunc pro tunc entry of September 5, 1908, on the ground that it was made without any minute of the judge or the clerk or any paper in the cause which would support such an order.

The law on this point is too well settled to require more than a mere reference to it. It follows that, however serious the consequences to the defendant, it is plain that we are restricted to the record proper and that the alleged exceptions are not before us for review. The indictment is hut a rescript of the one approved in State v. Gray, 172 Mo. 430; State v. Wilson, 172 Mo. l. c. 423, 428. The arraignment and- the plea of not guilty were in due and regular form and so alsa are the entries of the impanelment of the jury, the verdict and the sentence of the court.

In the absence of any proper exceptions and of any error in the record proper, we have hut one duty to perform, that is, to indulge the presumption that the court performed its duty and gave the defendant a fair and impartial trial.

The judgment of the circuit court is therefore affirmed.

Burgess and Fox, J.J., concur.


source: Caselaw Access Project

author: FOX, J.

license: Public Domain

text:
    THE STATE v. HARRY EXNICIOUS, Appellant.
    Division Two,
    November 23, 1909.
    1. VARIANCE: Registration: Misspelling Name. Where defendant, Harry Exnicious, was indicted for fraudulent registration as a voter under the name of Joseph Walters, and the evidence showed that he did write that name on the registration hook, the fact that he also at the same time in attempting to write the name of “Joseph Walters” on other hooks misspelled the name, leaving “h” out of Joseph, and omitting “s” from Walters, does not establish a variance between the indictment and proof.
    2. ■ ELECTION: Proof. Any witness who knows the fact can testify that there was a general registration of voters on certain named dates, and the secretary of the board of election commissioners is competent to testify that fact, and is not incompetent to so testify, although there is no evidence that the registration was in pursuance to a notice or any official action on the part of said board, or in pursuance to law.

      ■ Appeal from St. Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge.
    Affirmed.

      C. Orrick Bishop for appellant.
    (1) There was a material variance between the allegations of the indictment and the proof, as to how the appellant signed the alleged books of- registration, if he signed them at all. And the court, disregarding this material variance and the appellant’s demurrer to the evidence, in instructing the jury (in the first and principal instruction) permitted them to find that the appellant had wilfully, etc., signed the said official registers and books of registration by writing thereon the name of Joseph Walters as and for his own name. State v. Judd, 221 Mo. 554. (2) The secretary of the board of election commissioners was permitted to testify, over appellant’s objection, in a general way, that there was a general registration of voters in the city of St. Louis on the 14th, 15th, 16th and 17th days of September, 1908, without any evidence that the same was held in pursuance of any notice, or official action on the part of the election commissioners, or pursuant to any law.

      Elliott W. Major, Attorney-General, and Charles G. Revelle, Assistant Attorney-General, for the State.
    (1) . The defendant standing on his demurrer, admits the facts the evidence tends to prove, and in passing on it the court is required to make every reasonable inference in favor of the State. Champagne v. Harney, 189 Mo. 729; Montgomery v. Railroad, 181 Mo. 477; State v. Warner, 74 Mo. 85. We are at a loss to know how the guilt of one charged with this offense could be established by evidence more direct, convincing and conclusive, and in view of defendant offering no evidence in his own behalf, we are forced to the conclusion that his demurrer wás in effect, a confession of guilt. (2) The instructions given in this case have met with the approval of this court, and have been held to be sufficient. State v. Cummings, 206 Mo. 618. If counsel for defendant believed that other and further instructions should have been given, it was his imperative duty to specifically call the court’s attention to the features and questions of law not fully covered, and failing in this, his assignment on that phase is stale. State v. Bond, 191 Mo. 563; State v. McCarver, 194 Mo. 742; State v. West, 202 Mo. 137; State v. Espenschied, 212 Mo. 222.
   FOX, J.

This cause is now pending before this court upon appeal by the defendant' from a judgment rendered in the circuit court of the city of St. Louis, convicting him of the offense of fraudulently registering as a voter of the Tenth election precinct of the Fifteenth ward of the city of St. Louis, under a name not his own.

On the 21st day of September, 1998, the grand jury of the city of St. Louis returned an indictment, charging the defendant with the offense as above indicated. The sufficiency of the indictment is not challenged, hence there is no necessity for burdening this opinion with a reproduction of it. The defendant was duly arraigned and entered his plea of not guilty to the charge contained in the indictment, and the case proceeded to trial before a jury which has been regularly impaneled.

The testimony developed upon the trial tended to prove substantially the following state of facts:

That there was a general registration of the voters and electors in the city of St. Louis on the 14th, 15th, 16th and 17th days of September, 1908, and that the judges and clerks of such registration, after being duly sworn and qualified, proceeded in the discharge of their respective duties. All persons desiring to register as qualified voters were required to state, under oath, their place of residence, name, date of birth, age, occupation, and certain other matters touching their qualifications and right to register; and if their answers were satisfactory they were then permitted to sign their names on the register as qualified voters. Upon the 15th day of September, defendant appeared before the judges and clerks of registration of the said Tenth election precinct of the Fifteenth ward and requested that he be permitted to register. After being sworn to truthfully answer questions touching his right to register, he stated, among other things, that his name was Joseph Walters, his place of residence 2013’ Olive street, which is in the Tenth precinct of the Fifteenth ward. These answers, together with others, were written by the clerk in the record kept for that purpose, and at the proper place in said books, and in the column for qualified voters, defendant signed his name “Joseph Walters.” His name, age and residence, as given by him, were then entered on the registration books. When a patrolman, in accordance with directions from one of the judges, started to strike the defendant’s name from the registration record, defendant tried to make his escape and was apprehended only when he was shot in the leg. After his arrest and on the 19th day of September, defendant signed a recognizance in the name of Joseph Walters and again gave his address as 2013 Olive street.

The State’s evidence also tended to prove that no one of the name of Joseph Walters had ever resided at 2013 Olive street; that defendant’s name is Harry Exnicious, and at the time of his offense, and prior thereto, he resided at 821 or 823 Carr street, which was not in the Tenth precinct of said Fifteenth ward.

At the close of the State’s evidence the defendant demurred thereto, but offered no evidence in his defense.

At the close of the evidence the court fully instructed the jury upon the charge embraced in the indictment and upon the credibility of witnesses, and the necessity of establishing the guilt of the defendant beyond a reasonable doubt. The cause was then submitted to the jury and they returned their verdict finding the defendant guilty as charged and assessed his punishment at imprisonment in the penitentiary for a term of five years. Timely motions for a new trial and' in arrest of judgment were filed and by the court taken up and overruled. Sentence and judgment were entered of record in accordance with the verdict and from this judgment the defendant prosecuted this appeal, and the record is now before us for consideration.

OPINION. •

We have read in detail all of the testimony as disclosed by the record, and in our opinion it conclusively establishes the guilt of the defendant of the charge embraced in the indictment.

I.

Learned counsel for appellant directs our attention to the testimony wherein it appears that the defendant signed four registration books in the presence of the officers, and specially directs our attention to the fact that his signature was not precisely the same upon some -of the books; but that he did sign the registration books there is no dispute. The indictment charges that he registered under the name of “Joseph Walters,” and that his proper name was that of Harry Exnicious, the- name under which he was indicted. The testimony clearly shows that the original registration book was signed by him as “Joseph Walters.” Upon the copy of the original registration book the most that can be said of his signature wa.s that he misspelled the name both “Joseph” and “Walters”; however, it is clear that notwithstanding the improper spelling of the name, it was intended for “Joseph Walters. ’ ’ Upon one of the primary hooks there was simply a mistake in the spelling of the Christian name Joseph. In the spelling of that part of his name he omitted the letter “h,” as well as omitting from the surname the letter “s” making it “Walter” in place of “Walters.” The record discloses further that on line 21 and under the heading “signature,” he again simply misspelled his Christian name, that is to say, spelled it “Josph,” instead of “Joseph.” His surname, “Walters,” was properly spelled in writing that signature. Upon another primary book we find the record disclosing the signature of “Joseph Walters.” Upon these disclosures of the record counsel insists that there was by reason of the mistakes herein indicated in the spelling of the name Joseph Walters, in signing the registration books, a material variance between the allegations of the indictment and the proof as to how the appellant signed the alleged books of registration. In support of this insistence our attention is directed to the recent case of State v. Judd, 221 Mo. 554. We have carefully re-examined that case and it is sufficient to state upon this proposition that it is clearly distinguishable from the case at bar. In the Judd case it is charged in the information that the defendant had answered that his name was “Chas. Cohn, ’ ’ and that the judges, clerks and officers of registration had entered and written his' name in said register as “Chas. Cohn.” The pleading- in that case then proceeds to charge and allege that the defendant unlawfully and feloniously did sign said registers and books of registration by writing the name of “Chas. Cohen. ’ ’ As was said in that case, it charges a. registration under one name and a signature of an entirely different name. That is not this case. Here the charge is that the defendant, Exnicious, registered under the name of Joseph Walters, and did then and there unlawfully, feloniously, wilfully, knowingly, falsely and fraudulently, pretend and represent to the said judges, clerks and officers of registration of said Tenth election precinct of the Fifteenth ward of the said city of St. Louis that his name was Joseph Walters, and the proof showed that he signed, correctly spelling the name as Joseph Walters.

We take it that the simple mistake in the spelling of the name in the one or two instances pointed out does not constitute a fatal variance between the allegation in the indictment and the proof offered in support of it. Again it may be said, recurring to the Judd case, that it was charged' in that case that defendant signed the registration books under the name of “Cohen,” when the witnesses on the part of the State absolutely negative any signing of that name by the defendant. There was absolutely no evidence that defendant signed the registration book as ‘ ‘ Chas. Cohen, ’ ’ but it was clearly shown by the State’s own testimony that said name was signed by one of the judges. A casual reading of the Judd case makes it manifest that it is clearly distinguishable from the case now under consideration.

II.

It is next insisted that there was no evidence that this offense was committed' in the Tenth election precinct of the Fifteenth ward of the city of St. Louis and at the place of registration of the said Tenth election precinct of the said Fifteenth ward. We are unable to give our assent to this insistence: We have carefully analyzed the testimony disclosed by the record, and the testimony of at least two of the witnesses clearly shows that this offense was committed in the Tenth election precinct of the Fifteenth ward of the city of St. Louis and at the place of registration of said election precinct of said ward, that is to say, at No. 1903 Olive street. This point must be ruled against the appellant.

III.

Complaint is also made that the secretary of the Board of Election Commissioners was permitted to testify, over appellant’s objection, in a general way, that there was a general registration of voters in the city of St. Louis on the 14th, 15th, 16th and 17th days of September, 1908, without any evidence that the same wa.s held in pursuance.of any notice or official action on the part of the Election Commissioners, or pursuant to any law. There is no merit in this complaint, and it is sufficient to say that a similar objection was urged in the case of State v. Tiernan, handed down at the present sitting of this court, and it was there held that the objection was properly overruled, and that any witness who knew the facts had the right to testify that there was a general registration on those days, and no one was better able to testify to that fact than the- secretary of the board under whose supervision the registration was made.

The testimony disclosed by the record is amply sufficient to show that the defendant’s true name is that of Harry Exnicious, and that he did fraudulently register upon the registration book under a name which was not his own, that of Joseph Walters.

Finding no reversible error disclosed by the record, the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


text:
    THE STATE v. JOHN FLEETWOOD, Appellant.
    Division Two,
    November 23, 1909.
    1. EVIDENCE: No Objection in Motion. Where defendant’s motion for a new trial does not assign as a ground thereof that the trial court erred in excluding evidence offered by him, any complaint of the ruling of the court in excluding testimony cannot be considered on appeal.
    2. CONTINUANCE: Discretion. Granting or refusing a continuance in a criminal case is a matter that frequently rests in the sound discretion of the trial court, and unless it is apparent that such discretion has been abused the appellate court will not interfere with its rulings.
    3. -: Reviewable. Unless the application for a continuance is preserved in the bill of exceptions, the rulings of the trial court thereon are not reviewable on appeal.
    4. CONCUBINAGE: Instruction: Refusing Defendant’s. Where the court has fully defined the elements of concubinage in an instruction given, as the taking away of a female under eighteen years of age for the purpose of prostitution and concubinage, it is not error to refuse one asked by defendant in which the jury are told that sexual intercourse is not concubinage, and that they should acquit him, even though they find he had sexual intercourse with prosecutrix, unless they find that he took her away for the purpose of concubinage.
    5. APPELLATE PRACTICE: Sufficiency of Evidence. Where there is any substantial evidence to support the verdict in a criminal case, the appellate court will not interfere therewith on the ground of its insufficiency. It is for the jury to settle any conflict in the evidence.
    6. CONCUBINAGE: Sexual Intercourse. The evidence was undisputed that prosecutrix was under eighteen years of age, that she was in the legal charge of her father, and that she was persuaded and taken away by defendant. The evidence that the taking away was for the purposes of prostitution was that she and defendant remained at the picnic grounds into the night several hours after her family were gone, and at his persuasion; that they walked that night to his house twelve or fifteen miles away; that the house was a one-room one, in which were two beds; that they remained there that day and the succeeding night; that she lay down on one of the beds, with her clothes off, and defendant, with his shoes and' coat off, lay down beside her. He testified he did not have sexual intercourse with her, and she did not testify one way or the other. Defendant was married and had a family, and they were at her father’s a mile away. Held, sufficient to support a verdict of guilty of concubinage.
    Appeal from Douglas Circuit Court. — Eon. John- T. Moore, Judge.
    Affirmed.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) Sufficiency of information. The information is sufficient, valid, properly verified and in the approved form. R. S. 1899, sec. 1842; State v. Johnson, 115 Mo. 486; State v. Jones, 191 Mo. 655; State v. Kinst, 207 Mo. 18; State v. Beverly, 201 Mo. 550. (2) Granting or refusing an application for continuance is a matter within the judicial discretion of the trial court. State v. Day, 100 Mo. 247; State v. Cochran, 147 Mo. 511; State v. Burns, 148 Mo. 172. To warrant a reversal on the ground of the refusal of a continuance, it must appear from the whole case that the result might have been different had the testimony been given as indicated. State v. Dale, 89' Mo. 579; State v. White, 152 Mo. 159; State v. Kindred, 148 Mo. 281. The materiality of the evidence does not appear in the application; and, furthermore, the absent witness was defendant’s wife, whose deposition he could have procured. The application for continuance was frivolous, and the court did not abuse its judicial discretion, or exercise it oppressively, in refusing to continue the cause. ' State v. Rice, 149 Mo. 465; State v. Dittmer, 124 Mo. 431; State v. Banks, 118 Mo. 117. (3) (a) Exception as to when witness (Wm. Miller, father of the girl) was first informed when the girl had remained at the reunion, and not returned with the Morrisons. This was competent testimony going to show the want of consent of the father as to her remaining with defendant, and was admissible, (b) As to the exception, if witness (father of prosecutrix) consented' for the girl to remain at reunion with defendant, this was competent, as the girl was living with and was in charge of her father, (c) That witness (father) had attempted to keep the girl away from defendant was also competent under the light of all the evidence that she had become pregnant while staying at defendant’s home, and gave birth to a child, and was competent for the further reason that the evidence went to the fact of defendant taking the girl away for the purpose of concubinage. State v. Stone, 106 Mo. 7. (d) Evidence as to whom she had been making her home with, sometime before her baby was born, was proper to show the intent and purpose for which he induced the girl away. The gravamen of the offense of taking away a female for the-purpose of concubinage is the intent with which the enticing and abduction are done. State v. Knost, 207 Mo. 18; State v. Beverly, 201 Mo. 550; Bishop on Statutory Crimes, sec. 636. The court having fully instructed the jury on the points therein contained, it was not error to refuse this instruction. When the court has already instructed the jury on the matter contained in the instruction asked, it is not error to refuse to instruct the jury on the same matter, even though instructions asked, may be correct. State v. Atchlev, 186 Mo. 174; State v. Crittenden, 191 Mo. 17; State v. Barrington, 198 Mo. 23‘; State v. Speyer, 194 Mo. 459. And furthermore, the evidence of intercourse, or the fact of intercourse, only goes to prove the intent or purpose for which defendant took the girl away. State v. Bobbst, 131 Mo. 338; State v. Gibson, 111 Mo. 92; State v. Johnson, 115 Mo. 480.
   FOX, J.

This cause is now pending before this court upon an appeal from a judgment of the circuit court' of Douglas county, convicting the defendant, John Fleetwood, of an offense as defined by section 1842, Revised Statutes of 1899, for the taking away of a female under the age of eighteen years, for the purpose of prostitution or concubinage. Omitting formal parts, the information, which was duly verified, charging defendant with this offense, was as follows:.

“Fred Stewart, prosecuting attorney within and for the county of Douglas, in the State of Missouri, informs the court upon his oath that John Fleetwood, on the 10th day of September, 1908, in the county of Douglas and State of Missouri, did then and there being one Myrtle Miller, a female person under the age of eighteen years, to-wit,' seventeen years old, unlawfully and feloniously take from one William Miller, her father, he, the said William Miller, then and there being in the legal charge of the person of the said Myrtle Miller, without the consent and against the will of the said William Miller for the purpose of concubinage by having illicit sexual intercourse with him, the said John Fleetwood, against the peace and dignity of the State. ’ ’

Upon this charge -the defendant was duly arraigned and pleaded not guilty at the September term, 1908, of said Douglas County Circuit Court. At said term the trial proceeded and the evidence introduced on the part of the State upon the trial of said cause tended substantially to prove that the prosecutrix was •the daughter of William Miller and lived with her father in Christian county, Missouri, about a mile and a half from defendant’s home in Douglas county; that on September 12, 1908, there was a reunion being held at Ava, the county seat of Douglas county; that on the morning of September 12th prosecutrix left her home in a. conveyance with Mat Morrison (who had married a sister of prosecutrix) and his family to go to Ava, to attend the reunion, under the direction and with the consent of'her father; that they arrived at the grounds where the reunion was held at'about 10 o’clock a.m., and that immediately after arriving at the reunion grounds the' defendant and prosecutrix met and remained together all day; that defendant induced and over-persuaded the prosecutrix to remain with him at the reunion and accompany him home, and not to return to her own home with the Morrisons when they were ready to start home from the reunion; that Mat Morrison and Mamie Morrison, his daughter, left prosecutrix-and defendant together on the reunion grounds; that when Mamie Morrison, at least three different times asked prosecutrix to return home, the defendant at each and all times • coaxed, induced and over-persuaded the prosecutrix to stay wih him at the reunion grounds, without the consent of - the Morrisons, in whose charge prosecutrix had been placed by her father. The State’s evidence also shows that prosecutrix was only seventeen years of age at the time; that her father never consented to her going or being with the defendant, but on the contrary would not permit prosecutrix to visit the home of defendant, and had not permitted defendant and prosecutrix to be together for .two years prior to this time; that sometime previous to this time the prosecutrix had been staying at the home of defendant, that is to say, about two years previous, and became pregnant and gave birth to a child; that since the occurrence of that event the father'of prosecutrix had never allowed her to be in defendant’s company or visit defendant’s home. Prosecutrix testified that she lived with her father and that she went to the reunion at Ava with her brother-in-law, Mat Morrison, and his family, and at the reunion defendant asked her to stay with him at the reunion grounds and not return to her home with the Morrison family; that when the Morrisons asked her to go home defendant would whisper to her to stay; that they remained together on the reunion grounds Saturday night until toward morning, when they started for defendant’s home, a distance of twelve or fifteen miles, arriving there about daylight Sunday morning. That defendant’s home was a one-room house, in which were two beds; that no other persons were at defendant’s home when they arrived, and that they remained there together from the time of their arrival until Monday morning about two o’clock when her father, the constable, John Thurman, Perry Riniker and Mat Morrison came there and took her to her father’s home. Prosecutrix further testified that during the time they were at defendant’s home together defendant laid down on the side of the bed by her; that she had her clothes off, and that she went to sleep while they were in that position, and that she was asleep when her father and the officer arrived there Monday morning. Prosecutrix further testified that none of her family knew she was with defendant.

Defendant testified that he first saw prosecutrix at the reunion grounds and that she remained there and went home with him ‘ ‘because she wanted to; ” that he did not take her away for the purpose of having sexual relations with her, and that he did not have sexual relations with her; that it was at her request that she went home with him, and that he expected to find his wife and family at home when, he arrived there; that he knew his wife had gone to her father’s . home that day, but expected her to return to his home on Saturday evening. Defendant further testified that he and prosecutrix were together at the reunion pretty much all day, and admitted that he was with her when Mamie Morrison came after her to get her to return home with the Morrisons; that he stayed with hér Saturday night; that they left the reunion grounds at dark Saturday night and arrived at home at daybreak, having walked all night, the distance being fifteen or sixteen miles; that his home was a one-room house, and that he and prosecutrix remained together at his home from the time they arrived there until early Monday morning, when the father of prosecutrix and the officer came to his house and arrested him. On cross-examination defendant testified that he requested the prosecutrix to remain at the reunion with him,' and that after reaching his home he laid down on the side of the bed by her, with his shoes and coat off, and asked her why she thought his wife had not come, and that she was undressed at the time; that he remained there with her all day Sunday, except a short time when he went to a neighbor’s house who lived a couple of hundred yards from his home; that he did not know that his child was sick at his wife’s father’s home until after his wife came home. However, his wife’s father lived only a mile and a half from where he and prosecutrix were together from early Sunday morning until early Monday morning. Defendant further testified that his wife was sick on the day of the trial; that he took a buggy and went after her, but she was too ill to attend the trial; that he and his wife had been living together since this trouble.

J. "William Miller, witness for defendant, testified that defendant’s wife was at his (Miller’s) home on the day of the trial; that she was not well when he left home, and that he did not suppose she was well enough to attend the trial. On cross-examination this witness testified that defendant’s wife stated to him that she would attend the trial if they had to have her and would come after her.

There was also other evidence introduced on the part of the defendant tending to show that the reputation of the prosecuting witness for chastity was bad.

At the close of the evidence the court instructed the jury upon every phase of the- case to which the testimony was applicable. We do not deem it essential to reproduce the instructions given, but will give them such attention as we deem necessary during the course of the opinion. The cause was then submitted to the jury and they returned a verdict finding the defendant guilty as charged in the information and assessed his punishment at three years’ imprisonment in the State penitentiary. Timely motions for new trial and in arrest of judgment were filed and hy the court taken up and overruled. Sentence and judgment were entered of record in conformity to the verdict returned and from this judgment the defendant in due time and proper form prosecuted his appeal to this court, and the record is now before us for consideration.

OPINION.

In the consideration of this cause we are not favored with a brief or even any suggestions concerning the errors complained of as disclosed by the record; however, in obedience to the commands of the-statute we will carefully analyze the disclosures of the record with the view- of ascertaining if any substantial error has been committed in the trial of this cause.

I.

We have analyzed in detail the disclosures of the record as to what occurred during the progress of the trial of the defendant in this cause and find that numerous objections were made upon the introduction of evidence upon the part of the State. Upon this proposition it is sufficient to say that we have examined very carefully the objections urged to the testimony offered by the State, and in our opinion the testimony as’ offered to which objections were interposed was 'admissible; at least, we have reached' the conclusion, after a careful analysis of the numerous objections to the introduction of evidence, that there was no substantial error in. the action of the trial court in the admission or rejection of evidence. The evidence as offered by the State, to which' objection was made, manifestly had a tendency to establish some essential elements of the crime charged. As to the rulings of the court excluding evidence offered by the defendant, the motion for new trial fails to preserve the action of the trial court upon that subject; hence, any complaint as to the rejection of testimony offered by the defendant is not before us for review.

II.

Our attention is directed to the application for a continuance on the part of the defendant and the action of the court in overruling it. It is sufficient to say upon that question that we have fully considered the application, and in our opinion there was no error in denying- the same. Granting or refusing applications for continuances in criminal cases is a matter that frequently rests within the sound judicial discretion of the trial court, and unless it is apparent that such discretion has been abused and arbitrarily exercised the appellate courts are not inclined to interfere with the action of trial court upon this subject. [State v. Day, 100 Mo. 242; State v. Cochran, 147 Mo. 504; State v. Burns, 148 Mo. 167.] But aside from this, an examination of the record discloses that the application for a continuance is-not embodied in the bill of exceptions which is signed by the judge of the trial court. This being true, it is not a subject for review by this court.

III.

We have carefully considered the instructions which were given to the jury at the close of the evidence, and we are unable to discover any substantial error in the declarations as given. They are substantially in form with instructions which have heretofore met the approval of this court, applicable to offenses of this character. They required the jury, before they were authorized in returning a verdict of guilty, to find beyond a reasonable doubt every essential element necessary to constitute the offense with which defendant was charged. The jury were fully informed by an appropriate instruction that the law presumed the innocence of the defendant and that this presumption continued with, him until it had been overcome by evidence which established his guilt to their' satisfaction and beyond a reasonable doubt. The jury were also informed that the burden of proving the guilt of the defendant rested with the State, and if they had a reasonable doubt of the defendant’s guilt they should acquit him. It may be further said that the court gave to the jury full information as to their duty in determining the credibility of witnesses and the weight and value of their testimony, substantially telling them that they were the sole judges of the credibility of the witnesses as well as the weight and value of their testimony, and in determining what weight and credit they should give to the testimony of any witness they should take into consideration the interest such witness may have had in the result of the trial, the relationship, if any, of any witness to the defendant or to the prosecuting witness, the attitude and demeanor of the witness on the witness stand, and finally told the jury that if they believed that any witness had wilfully and knowingly sworn falsely to any material fact in issue, they were at liberty to disregard any or all of such witness’s testimony.

A careful consideration of all the instructions indicates very clearly that all of the subjects to which the testimony had any reference were fully covered by them.

The defendant requested the court to instruct the jury as follows: “The court instructs the jury that if you find and believe from the evidence that the defendant did have sexual relations with Myrtle Miller, unless you further find that he took the said Myrtle Miller for the purpose of concubinage, if you find that he did take her, you should acquit the defendant, as sexual intercourse is not concubinage, as defined in these instructions.” This instruction was refused, and we think properly so, for the reason that the matters embraced in that instruction had been fully covered by instructions given by tbe court. Tbe court in its instructions had clearly presented tbe gravamen of tbis offense; that tbe essential element of it was tbe taking away of tbe female under tbe age of eighteen years for tbe purpose of prostitution and concubinage; hence, we take it that tbe instruction as offered by tbe defendant was a repetition of what bad already been declared to tbe jury by tbe trial court, and it constituted no error to decline to give tbe instruction requested.

IV.

This leads us to tbe consideration of tbe question as to tbe sufficiency of tbe evidence to support tbe verdict. We have indicated in tbe statement tbe nature and character of tbe evidence upon which tbis cause was submitted to tbe jury. Tbis cause is no exception to causes generally of tbis character. It presents evidence both ways, and it is sufficient to say that it was tbe province of tbe jury to settle and adjust the conflict in tbe evidence. It needs no citation of authorities upon tbe proposition that this court will not undertake, if there is any substantial evidence to support tbe verdict, to retry tbe cause upon tbe mere, disclosures of tbe record. Tbis has been tbe uniform expression of tbis court. [State v. Tetrick, 199 Mo. 100; State v. Mathews, 202 Mo. 143; State v. Smith, 190 Mo. 706; State v. Williams, 186 Mo. 128.]

V.

We have indicated our views upon tbe legal propositions as disclosed by tbe record. We see no reason for further discussing tbe complaints presented by it. Tbe trial court fully and fairly declared tbe law to tbe jury applicable to tbis case. There was substantial evidence upon which tbe jury bad tbe right, if they believed it, to predicate their verdict. Finding no substantial error disclosed by tbe record in tbis cause tbe judgment of tbe trial court should be affirmed, and it is so ordered.

All concur.


author: BURGESS, J.

text:
    THE STATE v. DORA HUBBARD, Appellant.
    Division Two,
    November 23, 1909.
    1. INSTRUCTION: Circumstantial Evidence. It is only when a conviction is sought on circumstantial evidence alone, that it is necessary to give an instruction on the weight of circumstantial evidence.
    2. EVIDENCE: Other Conviction. Where defendant has made herself a witness, it is competent for the State to introduce judgments of prior convictions of various offenses; and it is then permissible to impeach and cross-examine her.
    Appeal from Pettis Circuit Court. — Ho». Louis Hoffman, Judge.
    Affirmed.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    (1) Appellant complains because she was cross-examined as to the number of times she had been convicted of various crimes prior to the date of this trial. When appellant became a witness, she was then subject to such cross-examination. This is permitted by our statutes. B. S. 1890, sec. 4680'; State v. Blitz, 171 Mo. 530; Land & Lumber Co. v. Chrisman, 172 Mo. 617; State v. Heusack, 189 Mo. 311; State v. Thornhill, 174 Mo. 370; State v. Woodward, 191 Mo. 633; State v. Brooks, 202 Mo. 106; State v. Barrington, 198 Mo. 80. (2) It was entirely competent for the State to introduce in evidence the various judgments of conviction of appellant for the purpose of affecting the credibility of her evidence as a witness in the case. Sec. 4680, supra; State v. Blitz, supra; State v. Brooks, supra. (3) Appellant assigns as error the court’s action in refusing to give instructions C, D, E and F, requested’ by appellant. Each of these instructions seeks to submit the case to the jury on the ground of circumstantial evidence. There is no place in this case for such a theory to be submitted to the jury. The court instructed on alibi, which was defendant’s theory of the case. There was direct and positive evidence in this case that defendant committed the crime as charged, and it is only when conviction is sought on circumstantial evidence alone, that such instructions are necessary and proper to be given. ' State v. Donnelly, 130 Mo. 649; State v. Robinson, 117 Mo. 663; State v. Moxley, 102 Mo. 374; State v. Maxwell, 42 Iowa 208.
   BURGESS, J.

The prosecution in this cause was commenced by the filing of an information by the prosecuting attorney of Pettis county in the circuit court of said county, charging the defendant with a larceny of $80 from the person of S. E. Searlatt, in the nighttime, in the city of Sedalia, on the 6th day of December, 1907. The defendant was duly arraigned and pleaded not guilty, and upon a trial for said charge was found guilty and her punishment assessed at two-years in the penitentiary. Prom the sentence upon this verdict, she has appealed to this court.

The evidence tends to establish the following facts: The prosecuting witness left Higginsville, Missouri, about eight o ’clock on the evening of December 6, 1907. He purchased a railroad ticket from Higginsville to Stamps, Arkansas, over the Missouri P'acific and Iron Mountain system. On leaving Higginsville he had $80 in paper money and some five dollars in silver. He came to Sedalia on what is known as the Lexington Branch of. the Missouri Pacific system, reaching there about 9:45 that night.

On his arrival at Sedalia, he went to the Missouri Pacific depot, and remained there a short time, when he discovered that he had lost one of his rubbers from his overcoat pocket, and he started out to buy a rubber. While on the street in search of an open store he was accosted by the defendant on two different occasions. On the first, she said that she must get away or they would catch her or something of that kind, and went. He, thereupon, continued his search for the store and she met.him again, and he detailed the circumstances in this manner: “She came right up in front of me, my vest was open and my overcoat over my shoulder, and I had the money in here (indicating his inside vest pocket), I had eighty dollars in paper money in a pocketbook. I also had a railroad ticket. I had the pocketbook in this vest pocket. I had my head down and she came right up to me and grabbed me and ran her hands around and said, ‘You are a nice fat old fellow,’ and made a swipe around me and I did not think about the money, and it kinda excited me, and she let loose and went on. I did not miss the money until I got into the depot. She had on a red skirt and a big hat and a brown looking coat — I do not know whether it was a coat or not — and she was a yellow woman.” Having discovered the loss of his money and railroad ticket, the prosecuting witness immediately notified the police, and the defendant was arrested within a very few minutes in McGurren’s restaurant, near the depot, about eleven o’clock, and was taken to the police station where she was identified by the prosecuting witness as the woman who had robbed him on the street a few minutes prior thereto. When arrested the defendant wore a red skirt- and a big hat and a brown looking cloak; she had six dollars in currency and four dollars and fifteen cents in silver on her person.

The pocketbook and railroad ticket were found about four o’clock on the following morning in front of Holdner’s store, on the south side of Main street, by a negro man. The money had all been taken from the pocketbook, and the railroad ticket alone remained.

Between ten and eleven o’clock on this same night, the defendant was seen by the witness Flossie Guy, a negro girl, on the south side of Main street, in front of said Holdner’s store, where the pocketbook was afterwards found. Defendant was in a stooping position as if she was hunting something or tying her shoe. She afterwards had a conversation with this witness, Guy, in which she said that “the trouble Will and I had I need not say anything about. I did not have to bring it up at court; and about seeing her over at Holdner’s, I need not bring that-up.”

When arrested on the night of the robbery, defendant stated to the police officer that she had just come down town and had not been on the street that night. After her arrest she was locked up in the city prison, and early on the following morning she secretly sent from the city prison her hat and cloak by a negro man. She was seen at .McGnrren’s restaurant a few minutes before the arrival of the Lexington train from Higginsville, at which time she stated that she had no money to buy any drinks for a crowd of negroes, who were then at the restaurant, but that she was going out on the street and when she came back she would have money to buy drinks for the crowd. On her return to the restaurant about 11 o’clock, she bought three rounds of drinks for the crowd amounting to about $3.50, and was a free spender with her money.

She testified in her own behalf and stated that she. came down town about 8:15 that evening to go to a show, but that her “dusky buck” was sick, and she then went to Houston’s hall for a dance. She did not stay there long, but went from there to McGurren’s, and then went back for the second time to the dance hall, and returned for the second time to the restaurant and remained there but a few minutes, when the police came in and arrested her. She denied paying for any drinks, or exhibiting any money, or making any statement about her buying drinks, when she came back to the restaurant the second time.

On the following day, at the preliminary hearing in the justice’s court, defendant had a sister there, dressed in red and wearing a cloak and dress very much like the defendant wore the night of the robbery; and her sister, on the advice of one of defendant’s couhsel was caused to change positions in the courtroom with the defendant to see if the prosecuting witness was able to identify the defendant as the one who had robbed him on the previous night. And the prosecuting witness in a very positive manner pointed out defendant as the guilty party on that occasion.

Various records of former convictions of the defendant were offered and read in evidence, from which it appears that she was a habitual criminal of the most pronounced type.

The information is in all respects sufficient. The record is a very voluminous one and is interlarded with many objections, but we will consider those urged in the brief of the counsel for the defendant first.

I. It is insisted that the court should have instructed the jury on circumstantial evidence, and erred in refusing four instructions designated as C, D, E and P, which were requested by the defendant. The court did instruct on alibi, which was the defendant’s theory of the case on the trial, and there was direct and positive evidence in this case that the defendant committed the larceny as charged in the information, and she was positively identified by the prosecuting witness as the person who went through his pockets and stole his pocketbook and money. '

It has again and again been ruled by this court that it is only when a conviction is sought on circumstantial evidence alone, that it is necessary to give an instruction on the weight of circumstantial evidence. [State v. Bobbitt, 215 Mo. l. c. 43; State v. Donnelly, 130 Mo. 642; State v. Fairlamb, 121 Mo. 137; State v. Robinson, 117 Mo. l. c. 663.] And in this connection it may also be remarked that in her motion for new trial, the defendant complains that the court did not instruct on the law of the case. There was no request to instruct on any other proposition except upon the law of circumstantial evidence and as the case was one of direct testimony, there was no harm in the court refusing to instruct on that subject, otherwise than it did in giving the very full and ample instruction on the presumption of innocence and reasonable doubt, and alibi.

2. There is no merit in the contention that the various judgments of conviction of the defendant of various offenses, were incompetent. Having made herself a witness, the defendant was then open to impeachment and cross-examination by the express provisions of section 4680-, Revised Statutes-1899. [State v. Blitz, 171 Mo. 530; State v. Brooks, 202 Mo. l. c. 117 and 118, and cases cited.]

While the defendant makes a formal assignment of error in the instructions given by the court of its own motion, her counsel have pointed out no error in any specific instruction.

A careful examination of each and every one of the instructions given by the court demonstrates that they are such as have often received the approval of this court and there is no error in them or any one of them.

As to the assignment in the motion for new trial that the verdict was the result of passion and prejudice, we can only say that it is refuted by the whole record, which leaves no doubt whatever of the guilt of the defendant and contains no- mitigating circumstances in her favor.

The judgment is therefore affirmed.

All concur.


text:
    THE STATE v. EDWARD J. KEATING, Appellant.
    Division Two,
    November 23, 1909.
    1. ELECTIONS: Fraudulent Registration: Swearing Voter. It is not necessary that the information, charging defendant with fraudulently registering in an election precinct, charge that he was sworn when he made application to register and before he was sworn to answer questions. That requirement of the statute is directed wholly to the registration officers.
    2. FORMER ACQUITTAL: Bar: Question of Law. Where the identity of the prisoner and the record of the former information, trial and acquittal under the first count were all admitted by the State, the legal efficiency of that record, offered by defendant, to sustain his defense of former acquittal, is a question of law for the court to decide, and there is nothing for the jury to pass upon.
    3. -:-: Good Indictment. In order for a former trial and acquittal or conviction to be available as supporting the plea of former jeopardy, it is essential that the former conviction or trial was upon a sufficient indictment or information. Where the Supreme Court decided on defendant’s former appeal that tbe information was insufficient in both counts, a conviction then on the second count and an acquittal by inference on the first count, were not a bar to a further prosecution of defendant upon an amended information sufficient in the second count.
    4. MOTION TO ELECT. Where there were two counts in the information, and the court withdrew the first count from the jury’s consideration, and he was convicted upon the second count, he cannot complain that the court overruled his motion to elect.
    Appeal from St. Louis City Circuit Court . — Eon. Hugo Muench, Judge.
    Affirmed.

      Zachritz & Bass for appellant.
    (1) The information on its face is barred by limitation. It is proper and timely to draw attention to the record, which shows and recites that the information last filed, and upon which' appellant was tried, was filed on the 6th day of January, 1908, the same day, according to the jurat, that “Arthur N. Sager” subscribed and swore to it. The offense is therein charged and alleged to have been' committed September 19, 1904. The information nowhere appears to be an amended information or a substitute for an original one, or one amended’ or filed by leave of court. The filing of this information without leave of court is without authority of law and invalid; being so, the point may be raised here for the first time; the right of the State to file amended informations is by statute left to the sound discretion of the court. R.'S. 1899, sec. 2481; State v. Pyseher, 179 Mo. 140 ; State v. Coleman, 186 Mo. 151. Nor is the information sworn to upon the oath of the circuit attorney. State v. Coleman, 186 Mo. 151. (2) The count of the information upon which appellant was found guilty is bad. It charges that appellant “by then and there requesting, soliciting and procuring said officers of registration to declare him a qualified voter.” This is a separate offense and distinct from fraudulently registering, also charged in the same count. Each clause of the statute creates a crime, a substantive offense, and any one of which, without reference to the other, may form the basis for a criminal prosecution. State v. Fielder, 210 Mo. 198. Hence, this count is duplicitous, and the motion to quash should have been sustained. State v. Dale, 141 Mo. 284; State v. Fox', 148 Mo. 517; State v. Blakely, 184 Mo. 187. The negative part of the second count is insufficient, because it fails to negative the right to register in the election precinct in the language of the statute or some equivalent term. The crime created by the statute is registering where one has no “lawful” right to register. Laws 1903, sec. 2120j, p. 155. (3) It was error not to compel the State to elect upon which count it would proceed. The information charges in the first count “that Edward J. Keating, on or about the 21st day of September . . . did register in two election precincts,” etc.- In the second count the charge is “that Edward J. Keating on the 19th day of September . . . did register upon the official register ... of the ninth election precinct.” Here we have two separate and distinct felonies charged to have been committed on two different days and dates united and joined in one information. It was not discretionary with the court to allow or refuse to order the State to elect upon which count it would proceed. Not to order an election under the circumstances was plainly prejudicial to the appellant and erroneous. State v. Carrigan, 210 Mo. 351. (4) The court’s ruling regarding appellant’s plea in bar was prejudicial and erroneous. State v. Headrick, 179 Mo. 300; State v. Huffman, 136 Mo. 58; State v. Inseback, 139 Mo. 214. (5) The court should have sustained appellant’s demurrer to the State’s evidence. The appellant stands convicted of fraudulently registering from 3127 N. Twelfth street. The only evidence that he did not reside at that number is that witness Charles H. Bergman went to that number and didn’t find appellant there when he called on him. The only other evidence as to. where the appellant lived is that of witnesses who saw appellant at different times coming and going from 812 Wright street. We earnestly contend that there is no substantial evidence upon which to base this conviction.

      Elliott W. Major, Attorney-General, and Charles G. Rev elle, Assistant Attorney-General, for the State.
    (1) This information is bottomed on section 2120j, p. 158, Laws 1903, and conforms in every particular to the requirements announced in State v. Keating, 202 Mo. 197. (b) The information does not allege that defendant was sworn when he made application for registration and before he answered the required questions, but this was unnecessary. State v. Cummings, 206 Mo. 624. (2) Before trial defendant filed a special plea in bar. To this plea the State entered a general denial, and defendant thereupon demanded a separate trial on the special plea. The denial of this is assigned as error, but that it was not error is well established by the approved practice in this State. State v. Snyder, 182 Mo. 503. To the same effect is State v. Manning, 168 Mo. 429. The evidence .offered in support of and against the plea consisted solely of the record of the former information, trial and result, and the admission by the State of the identity of the defendant and offense. All these facts being conceded by both parties, and therefore settled, it became and was the duty of the court to declare as a matter of law, whether or not there had been a previous conviction or acquittal, and there was nothing for the jury to pass upon. State v. Williams, 152 Mo. 120;-1 Bishop’s New Crim. Proc., sec. 816', subsecs. 4 and 5; State v. Manning, 168 Mo. 429; State v. Laughlin, 180 Mo. 358; State v. Moore, 156 Mo. 142, and State v. Goddard, 162 Mo. 225. It being obvious that it was the duty of the court to declare the legal effect of the record and admissions, and determine whether there had been a previous conviction or acquittal, the real question involved is, did the court correctly hold that the legal effect constituted no obstacle to the trial? The action of the court was proper for the following, among other reasons: 1. Neither of the two¡ counts in the former information stated any offense. State v. Keating, 202 Mo. 197; State v. Walsh, 203 Mo. 605. Bishop’s New Criminal Law, see. 1021; State v. Hays, 78 Mo. 600; Wiseback, 139 Mo. 217. 2. The plea upon its face is insufficient, as it does not allege that the facts necessary to support the present information were sufficient, if proved to be trae, to support the former charge, but merely alleges that the facts necessary to support this charge were placed in evidence against him on the trial of the former information. 3. As a matter of law and fact, the alleged offenses were not one transaction and one offense, but were essentially different. State v. Williams, 152 Mo. 123; State v. Oakes, 202 Mo. 86; 1 Bishop’s New Criminal Law, sec. 1051; Wharton’s Crim. PI. and Prac. (9 Ed.), sec. 456; State v. Williams, 152 Mo. 123; Morey v. Commonwealth, 108 Mass. 434; Commonwealth v. Trimmer, 84 Pa. St. 65; State v. Stewart, 11 Ore. 53; State v. Littlefield, 70 Me. 457; Irvin v. State, 7 Tex. App. 81; State v. Innis, 53 Me. 536. 4. Even if the first count in the former information were good and it charged the same offense as the second count, as defendant contends, then if the silence of the verdict on the first count operated as an acquittal on the second count on which there was an affirmative finding of guilt, we respectfully submit that no verdict of guilty rendered on one of several counts under different sections of the statute placed in an indictment in order to meet the varying phases of the evidence, could stand unless there was an affirmative finding of guilty on each and all of the counts. State v. Oakes, 202 Mo. 86. 5. That the silent verdict on the first count of the former information did not operate as.a bar to- the prosecution on the second count was expressly recognized by this court when this cause was heard on former appeal, as the cause was remanded for the declared purpose of giving the circuit attorney an opportunity to file a sufficient information and further prosecute the cause. State v. Keating, 202 Mo. 209.
   BURGESS, J.

On September 19, 1905, the circuit attorney of St. Louis, filed in the circuit court an information in two counts, attempting to charge the defendant in the first count with unlawfully registering in two separate election precincts, to-wit, in the fourth and ninth precincts of the second ward, and in the second count attempting to charge him with the offense of fraudulently registering in an election precinct, to-wit, the ninth precinct of the second ward, not having a lawful right to register therein, he not being a resident thereof. He was convicted upon the second count and from the judgment entered in accordance with the verdict, he appealed to this court, where the information was held insufficient and judgment reversed and the cause remanded. [State v. Keating, 202 Mo. 197.]

Thereupon, on the 6th day of January, 1908, the circuit attorney filed an amended information, duly verified, in two counts, charging in the first count the offense that he attempted to charge in the first count in the original information, and on which there had been no finding by the jury on the first trial, and in the second count charging the offense he attempted to charge in the second count of the original information. To this information defendant filed his plea in bar, alleging that although the original information contained two counts they covered but one and the same transaction and were supported by one and the same evidence, and the silence of the verdict as to the first count at the former trial amounted to a verdict of not guilty on that count, and therefore operated as an acquittal on both counts of the amended information. To this plea the State entered a general denial, and the defendant thereupon demanded that the issues thus presented be tried separate and apart from the general issue tendered by the plea of not guilty.

This the court refused to do, and defendant being arraigned, and pleading not guilty, the cause went to trial, and at the close of all the evidence the court sustained the plea as to the first count, and withdrew same from the consideration of the jury.

On the second count the defendant was convicted, and his punishment assessed at three years ’ imprisonment in the penitentiary. After unsuccessful motions for a new trial and in arrest of judgment, he was sentenced on the verdict and has appealed to this court.

The testimony on the part of the State tended to prove that in accordance with the laws of this State there was a general registration of voters and electors in the city of St. Lonis on the 19th, 20th, 21st and 22d days of September, 1904, and that the judges and clerks of registration, after having been properly appointed, were duly sworn and qualified, and during those days discharged their respective duties as such judges and clerks of registration.

All persons applying for registration were required to state under oath their place of residence, name, date of birth, age and occupation, duration of residence in the precinct, city and State, and certain others matters touching their qualification and right to register as, voters. These questions were propounded by one of the judges and the answers were recorded in books prepared and kept for that purpose and if the answers were satisfactory to the judges, the applicant was declared a qualified voter by entering the word “yes” opposite his name in the column, headed by the words “qualified voters,” and the applicant was then permitted to sign his name on the register in the proper place as a qualified voter.

On the 19th of September, 1904, defendant appeared before the judges and clerks of registration of the ninth election precinct of the second ward and requested to be permitted to register. After being sworn to truthfully answer questions touching his right to register, he stated among other things that his name was Edward J. Keating. That he resided at number 3127 South Twelfth street in said ninth election precinct of said second ward; that he was twenty-three years of age; that his occupation was that of bartender; that he was born in Missouri, and had resided in said election precinct for ten years and in the city of St. Louis and State of Missouri for twenty-three years. These answers were written, by the clerk, in the registration record, at the proper place on said book, and in the column for qualified voters defendant signed his name, and the judges declared him a qualified voter, and wrote the word “yes” opposite his name in the column headed “qualified voters” and he was duly entered' on the registration books as such.

The testimony on the part of the State then tended’to show that the defendant’s residence was not in the ninth election precinct, hut that he was a young man and lived with his parents at 812 Wright street in the fourth election precinct of the second ward. The testimony also tended to show that defendant made application for registration in the fourth precinct of the second ward and stated that he resided at 812 Wright street. He offered no evidence in his own behalf.

I. The information conformed to the rulings of this court on the former appeal in State v. Keating, 202 Mo. 197, and stated with particularity the doing by the defendant of all the acts necessary to registration within the meaning of the Act of 1903. [Laws of Missouri, 1903, pp. 177 and 178, sec. 2120j.]

The information did not allege that the defendant was sworn when he made application for registration, and before he answered' the necessary questions, but as held in State v. Cummings, 206 Mo. l. c. 624, 625, it was not essential that he do so, as this provision of the statute was one directed solely to the registration officers.

II. In regard to the special plea in bar, to-wit, an acquittal on the former trial, it is sufficient to say that the legal efficiency of the record of the former trial offered to sustain the acquittal from the crime charged in the second information, was entirely a question of law which the court was bound to decide. The identity of the prisoner and the record of the former information, trial and acquittal, were all admitted by the State, and there was nothing for a jury to pass upon. [State v. Williams, 152 Mo. l. c. 120; State v. Manning, 168 Mo. l. c. 429; State v. Laughlin, 180 Mo. l. c. 358; l Bishop’s New Crim. Proc., see. 816, subsecs. 4 and 5.]

The substantial question involved is, did the court correctly hold that the said proceedings constituted no obstacle to a trial of the defendant on the new information? On the former appeal it was ruled that the information was insufficient to sustain the verdict and sentence and for that reason the judgment was reversed and the cause remanded with permission to the circuit attorney to file a new information if he thought fit. Without restating the doctrine and the reasons in support thereof in regard to what constituted jeopardy, we will content ourselves by adopting the language of Judge Philips in State v. Hays, 78 Mo. l. c. 605, 606, to-wit: “It is sufficient, for the purposes of this case, to say that if the former indictment had been sufficient to sustain a conviction, and its further prosecution had been voluntarily abandoned by the State after the impaneling of the jury, and the reading of the indictment, the defendant could not again be exposed. to conviction upon the same charge. Cooley,, in his admirable work on Constitutional Limitations, page 327, very succinctly asserts that a person is in legal jeopardy when he is put upon trial, before a court of competent jurisdiction, upon an indictment which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance. ‘And a jury is said to be thus charged when they have been impaneled and sworn.’ There are exceptions to this general rule, among which is, that if the jury are discharged with the consent of defendant, expressed or implied; or if after verdict of guilty the same has been set aside on defendant’s motion for a new trial, or the judgment arrested. [Commonwealth v. Stowell, 9 Met. 572; State v. Slack, 6 Ala. 676.]” It is the accepted doctrine that in order for a former trial and acquittal or conviction to be invoked on a plea of former jeopardy, it is essential that the former conviction or trial must have been upon a sufficient indictment or information. Thus in State v. Manning, 168 Mo. l. c. 430, this court said: “The indictment number 2123 was invalid on its face, and no judgment' could have been rendered against defendant, and, hence, the plea in bar was lacking in this essential to a good plea of former jeopardy.” As this court decided on the former appeal that this information was insufficient as to both counts, nothing further need be added to show that that conviction on the second count and the acquittal by inference on the first count neither amounted to jeopardy within the meaning of our Constitution and law.

III. In regard to the motion to elect, it suffices to say that the defendant cannot complain for the reason that the court withdrew the first count from the jury’s consideration, and no possible harm could have resulted to him from the alleged misjoinder of the two counts. [State v. Richmond, 186 Mo. l. c. 81; State v. Carragin, 210 Mo. l. c. 365.]

It remains only to 'add that the arraignment was sufficient and in proper form and the evidence amply full to support the verdict.

We have carefully examined the record and have passed upon all the alleged errors assigned' in the motion for new trial which appear to us to have had any merit in them.

The judgment is affirmed.

All concur.


text:
    THE STATE v. DAVID F. LINN, Appellant.
    Division Two,
    November 23, 1909.
    1. NO EXCEPTIONS: Filing: Criminal Case. Where the hill of exceptions was not filed in the time permitted by court, evidence cannot be considered on appeal, and nothing but the indictment, arraignment, verdict, sentence and judgment, and if they are free from error, the judgment will be affirmed.
    2. -: No Filing. The court’s signature to the customary recital with which it is the practice to close bills of exceptions, is not a filing of the bill, and does not entitle the bill to be made a part of the transcript.
    Appeal from Buchanan Criminal Court. — How. A. W. Lincoln, Special Judge.
    Affirmed.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
    (1) There is no bill of exceptions in the record. Motions to quash,, applications for continuance, instructions and motions for new trial and in arrest are strewn through the record, but no proper steps were taken in the lower court to preserve any matters of exception for review. None of the evidence has been brought to this court. In this state of the record nothing is reviewable except the record proper. Motions, instructions, etc., have no place in the record proper, and, unless preserved by bill of exceptions, cannot be considered. State v. Shehane, 25 Mo. 566; State v. Herron, 199 Mo. 160; State v. Harvey, 105 Mo. 317; Nichols v. Stevens, 123 Mo. 119. (2) The record proper being free from error, and there being no bill of exceptions in the' record, the judgment should not be disturbed. State v. Long, 214 Mo. 324; State v. Hamilton, 214 Mo. 315; State v. Foley, 214 Mo. 309.
   GANTT, P. J.

On the 25th day of November, 1907, the grand jury of Bnchanan county returned an indictment, charging the defendant, David F. Linn, and another, with the crime of mayhem. On the same date defendant waived formal arraignment and entered his plea of not guilty. A change of venue from the regular judge was taken, and Hon. A. W. Lincoln of the Greene County Criminal Court was called in to try the case.

A jury was impaneled and sworn and by their verdict assessed defendant’s punishment at fifteen years in the penitentiary. Appellant’s codefendant was acquitted.

On January 29', 1908, defendant filed his motion for a new trial, this and a motion in arrest were overruled, and judgment and sentence rendered on the verdict, and defendant appealed to this court.

By successive orders the time for filing bill of exceptions was extended until the 1st day of November, 1908, term of court. No bill was filed in time, but on December 23, 1908, court and counsel collaborated in an effort to construct an entry which would retroact and close the gap between the first day of the November and the 1st day of the March term, 1909.

No bill of exceptions, however, was ever filed, no further entries with reference to the subject appearing.

On a separate page appears the court’s signature to the customary recital with which it is the practice to close bills of exceptions, but this is the sole particular in which the transcript certified as a “transcript of the files and record entries,” intimates that a bill of exceptions was filed.

The indictment was drawn under section 1846, Revised Statutes 1899, and is a sufficient charge of mayhem. [State v. Nerzinger, 119 S. W. 379; Neblett v. State, 47 Tex. Crim. Rep. 573; U. S. v. Scroggins, 27 Fed. Cas. 1000; 3 Russell on Crimes, pp. 696 and 698.J The arraignment, the impaneling of the jury and the verdict and sentence are all in due and proper form.

"While there is a paper indicating that it is the closing of a bill of exceptions, in fact none of the testimony has been preserved and none of the so-called exceptions appear in the transcript and hence we have only the record proper before us for review, and no error having occurred therein, the judgment is affirmed.

Burgess and Fox, JJ., concur.