text:
    THE STATE v. GROVER KEENE, Appellant.
    Division Two,
    May 14, 1907.
    NO BILL OF EXCEPTIONS. Where there is no bill of exceptions, and the record proper is free from error, the judgment will be affirmed.
    Appeal from Platte Circuit Court. — Hon. A. D. Burnes, ■ Judge.
    Affirmed.

      Herbert 8. Hadley, Attorney-General, for the State.
   FOX, P. J.

This cause is here upon an appeal by the defendant from a judgment of the circuit court of Platte county, convicting him of an assault with intent to kill, upon which conviction he was sentenced to the penitentiary for a term of two years.

There was no bill of exceptions filed in this cause and the time given the defendant to file the same has long since expired; therefore, there is nothing before this court except the record proper. We have examined the information and it is in proper form and sufficiently charges the offense of which the defendant was convicted. The record shows the waiver of formal arraignment and plea of not guilty and the trial proceeded regularly before a jury and they returned their verdict finding the defendant guilty as charged, and upon the failure of the jury to agree upon the punishment assessed, the court fixed the punishment, in conformity with the statute, at imprisonment in the penitentiary for a period of two years. It is conceded by the defendant and his counsel that the record before us is without error; therefore, there is nothing left to be done except to affirm the judgment of the trial court, and it is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    THE STATE v. G. A. PAUL, Appellant.
    Division Two,
    May 14, 1907.
    1. BILL OF EXCEPTIONS: Expiration of Time: Extension Thereafter: Judge Absent. The authority of a judge to sign a bill of exceptions in vacation and make it a part of the record, is purely statutory in this State. After the expiration of the time granted within which to file a bill of exceptions, neither the court nor the judge in vacation can extend it, and a bill of exceptions filed in pursuance of such a void order will not be considered on appeal. And this is true, notwithstanding the judge is absent from the State when the bill of exceptions is delivered at his chambers within the time allowed.

      2. INFORMATION: Forgery: Promissory Note. An information, set out in the opinion, charging forgery of a promissory note, held sufficient.
    Appeal from Lawrence Circuit Court. — Row. Hugh Babbs, Judge.
    Aeeiemed.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney General, for the State.
    (1) The information, which was accompanied by the affidavit of the prosecuting attorney, is sufficient in form and substance. Kelley’s Crim. Law, sec. 773; State v. Flora, 109 Mo. 295; State v. KarlowsM, 142 Mo. 465. (2) There is nothing before this court, except the record proper, the bill of exceptions not having been filed within the time allowed. It is hardly necessary to argue that, after the time had expired, the trial court had no authority to make any order whatever in reference to the filing of the bill of exceptions. State v. Eaton, 191 Mo. 151; State v. Thompson, 149 Mo. 439; State v. Britt, 117 Mo. 584; State v. Wilson, 98 S. W. 68. The court had no power or authority to make an-order nunc pro tuno filing a bill of exceptions, after the time for filing had expired, especially in the absence of notice to the adverse party. Musick v. Railroad, 124 Mo. 544; Maddox v. Railroad, 73 Mo. App. 510; State v. Britt, 117 Mo. 586; Powell v. Sherwood, 162 Mo. 605.

      Parker Potter and James A. Potter for appellant in reply.
    The cases cited by respondent in support of the second proposition in which it is urged that there is no bill of exceptions in this case, are not in point for the reason that they all refer to cases where the bill of exceptions was not presented to the trial judge within the time allowed. The authorities all hold that where the bill of exceptions is presented to tbe trial judge within the time prescribed, the rights of appellant or plaintiff in error will not be prejudiced by the judge’s delay in signing it. Especially is this true when the absence of the judge from the State makes it impossible for the appellant to have his bill signed at the proper time. Swem v. Green, 9 Colo. 358; Classer v. Hackett, 37 Fla. 358; Loud v. Prichett 104 Ga. 648; Olds v. Railroad, 165 111. 472; Railroad v. Morrison, 160 HI. 288; Weber v. Ins. Co., 80 111. App. 390; Vincennes Water Supply Co. v. White, 124 Ind. 376; Robinson v. Anderson, 106 Ind. 152; Toner v. Railroad, 58 S. W. 439; Chenault v. Quisenberry, 19 Ky. L. Rep. 1632, 43 S. W. 717; Linaham v. Barley, 124 Mo. 560; Field v. Gellerson, 80 Me. 270; Cochrane v. Little, 71 Md. 323; Browne v. Hale, 127 Mass. 158; People v. Judge of Sup. Court, 41 Mich. 726; McGee v. Beall, 63 Miss. 455; 3 Cyclopedia Law and Procedure, 44.
   GANTT, J.

The prosecution in this cause was begun by the filing of an information by the prosecuting attorney of Lawrence county, duly verified, charging the defendant with forgery. The information contained thirteen counts, but all of these were dismissed except the third, which is in the following form:

“In .the circuit court of Lawrence county, State of Missouri.
“State of Missouri, Plaintiff, vs. G. A. Paul, Defendant.
“Harvey Davis, prosecuting attorney, in and for the county of Lawrence, in the State of Missouri, acting herein upon information and belief, informs the-court that one G. A. Paul, at the county of Lawrence, in the State of Missouri, on the 25th of May, 1904, unlawfully and feloniously did forge, counterfeit and falsely make a certain instrument, in writing, to-wit, a certain promissory note, purporting to be the act of one J. R. Reed, by which a pecuniary demand and obligation for the payment of sixty-two and '65-100 dollars by the said J. R. Reed to Gr. A. Paul, or order, ninety days after date purported to be created, which said forged, counterfeit and falsely made instrument, in writing, to-wit, the said promissory note, is of the tenor following, that is to say:
“ ‘$62.65 Aurora, Mo., 5-25-1904.
“ ‘Ninety days after date I promise to pay to Gr. A. Paul, or order, sixty-two and 65-100 dollars for value received with eight per cent interest per annum thereon from date, which interest shall be due and payable annually, and if the interest thereon be not paid annually or when due, the same shall, when due, be added to and become a part of the principal and bear, interest at the same rate.
“.‘(Signed) J. R. Reed. Post Office — City'.’ with intent then and there and thereby, unlawfully and feloniously to injure and defraud, against the peace and dignity of the State. Harvey Davis,
“Pros. Atty.
“Harvey Davis, prosecuting attorney, makes oath and says that the facts stated in the above and foregoing information are true according to his best information and belief. Harvey Davis.
“Subscribed and sworn to before me this 18th day of October, 1905'.
“(Seal) M. B. Gardner, Circuit Clerk.”

The. regular judge of the court was disqualified and Honorable Hugh Dabbs, judge of the Jasper Circuit Court, was called in to try the cause, and at the December term, 1905, the trial was had and the defendant convicted and his punishment assessed at imprisonment in the state penitentiary for a term of two years. In due time he filed his motions for a new trial and in arrest of judgment, both of which were overruled, and he duly excepted. Thereupon, the court sentenced him in accordance with the verdict of the jury; from that judgment and sentence he has appealed to this court. At the same term he was given leave to file a bill of exceptions on or before the 20th day of February, 1906. On February 20, 1906, the time for filing his bill of exceptions was extended by a proper order signed by Judge Dabbs until April 20, 1906’ On- April 19, 1906, the time was extended by proper order until June 20, 1906. Again, on June 16, 1906, the time for filing the bill was extended for sixty days from that date. On August 15, 1906, the prosecuting attorney and the defendant’s attorney signed and filed a stipulation in accordance with the statute extending the time for filing the bill to August 20,1906. No further extensions were granted either by the court or by agreement of counsel filed with the clerk, but on the 15th of December, 1906, a bill of exceptions was signed and filed. At the time the bill was signed, in the vacation of court, Judge Dabbs made the following order: “ That thereafter, on the 15th of August, 1906, said bill of exceptions was delivered at the chambers of the undersigned special judge in the above-entitled cause and within the time heretofore allowed by a former order of the court, and on account of the absence of special judge from the State of Missouri, it was impossible for the defendant to have said bill of exceptions signed within the time allowed. It is therefore ordered by the undersigned special judge in said cause that said bill of exceptions, which by order of the court should have been filed on or before the 20th of August, 1906, be and the same is hereby signed and sealed, and the circuit clerk of Lawrence county, Missouri, is hereby ordered to file the same as of that date and that the same may be made a part of the record in this cause. Given under my hand this 10th day of November, 1906, at chambers in the city of Joplin, Missouri. Hugh Dabbs, special judge.” This bill was endorsed by the clerk of the Lawrence Circuit Court as follows: “State of Missouri vs. G. A. Paul, defendant. State of Missouri, County of Lawrence, ss. On this 15th day of December, 1906, by the order of the Honorable Hugh Dabbs, special judge, I hereby file the within bill of exceptions as of date of August 20,1906. M. B. Gardner, circuit clerk.”

Various errors are assigned for the reversal of this cause both in the oral argument and in the brief of counsel filed in behalf of defendant.

1. At the outset, the question arises as to what errors this court can review in the state of the record before us. It is insisted by the Attorney-General that there is nothing before the court except the record proper, because the bill of exceptions was not filed within the time allowed by the court. On the other hand, it is urged by the learned counsel for the defendant that, inasmuch as he presented the bill of exceptions at the chambers of Judge Dabbs, who presided in the cause, on the 15th of August, 1906, and Judge Dabbs was at that time absent from the State and did not return until after the time allowed for signing the bill, the bill should be considered as a part of the record. The authority of a judge of the court to sign a bill of exceptions in vacation, and making it a part of the record, is purely statutory in this State. The same rule prevails in both criminal and civil cases. [R. S. 1899, sec. 728.] In the construction of that statute, it has been uniformly ruled by this court that where the period beyond the trial term of court granted by the court in which to file a bill of exceptions, has expired, neither the court nor judge in vacation can extend it, and the bill of exceptions filed in pursuance of such a void order will not be considered on appeal. [State v. Scott, 113 Mo. 559; State v. Apperson, 115 Mo. 470; Powell v. Sherwood, 162 Mo. l. c. 611, and cases there cited.] Accordingly, it must be ruled that the bill of exceptions signed by Judge Dabbs on tbe 10th of December, .1906, and filed in the office of the clerk on the 15th of December, 1906, is no part of the record before us and the matters of exception therein cannot be considered on this appeal, and we must, therefore, look to the record proper for reversible errors.

2. Looking, then, to the record, proper, we discover no valid objection to the form of the information. The information charges an offense under section 2009, Revised Statutes 1899; the record is entirely free from error in the arraignment of the defendant, the impanelling of the jury, the return of the verdict and the sentence of the court. No error appearing, the judgment of the circuit court must be and is affirmed.

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


author: FOX, P. J.

text:
    Ex Parte IKE FOISTER.
    Division Two,
    May 14, 1907.
    1. PAROLE OF PRISONER: After Appeal and Affirmance of Judgment. The circuit court, after an appeal by a convicted defendant and an affirmance of the judgment, and a direction by the Supreme Court that the sentence pronounced by the circuit court be executed and that the marshal arrest defendant and deliver him to the warden of the penitentiary, has no power to parole defendant. Nor does the circuit court, between the time of the affirmance of the judgment and the arrest of defendant, have power to parole him. The statute expressly provides that the Supreme Court, when a judgment of conviction is affirmed, shall direct that the sentence pronounced below shall be executed.
    2. -: -: Repeal by Implication: Appeal Pending. Section 2827, Revised Statutes 1899, providing that no parole shall be granted in any case while an appeal is pending, did not by implication confer power on the circuit court to grant a parole after affirmance of the judgment, when the appeal is no longer pending. That provision did not, by implication, repeal the provisions of section 2705 which expressly requires the Supreme Court, when a judgment is affirmed, to direct that the judgment of the trial court be executed.

      Habeas Corpus.
    Petitioner remanded.

      G. W. Thornberry and Delaney & Delaney for petitioner.
    (1) The appeal from the judgment of the circuit court of Stone county, while it vested jurisdiction in the Supreme Court to determine the cause, only suspended the judgment of the trial court. On affirmance, the judgment of the Supreme Court is merely an order directing the sentence of the lower court to be executed. It is the judgment of the lower court that is executed, and the authority of the warden of the penitentiary is the judgment of the lower court. Secs. 2662, 2718, R. S. L899. (2) It therefore follows that the jurisdiction of the circuit court is not destroyed but merely suspended. On receipt of the mandate from this court, tht jurisdiction of trial court by virtue of the statute reattaches for sentence, but by every principle of law and equity it attaches for all purposes. State v. Way, 40 S. C. 297; Ex parte Cray, 77 Mo. 160; Ex parte Toney, 11 Mo. 661; Ex parte Jones, 41 Cal. 209'; People v. Walters, 1 Idaho 274. (3) The effect of affirmance is merely to remove the bar of executing the sentence of the lower court. Matthewson v. Railroad, 44 Mo. App. 99. (4) By virtue of the parole law, the trial court has full and complete jurisdiction to grant a parole. (5) The circuit court of Stone county having granted a parole, such parole can only be revoked for breach of conditions. It is in the nature of a conditional pardon. U. S. v. Hughes, 1 Bond (U. S.) 574. And is effective as an absolute pardon until the conditions are broken. 1 Bish., New Crim. Law, sec. 914; Fla veil’s case, 8 Watts & S. 197; dissenting opinion of Judge Hunt in Carr v. State, 19 Tex. App. 653.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for respondent.
    (1) After petitioner’s trial and conviction, and after lie had been granted an appeal, the circuit court of Stone county had no further jurisdiction in his case. True, that court possessed the authority to make an order nunc pro tunc, correcting the records; and also power to approve of and file a bill of exceptions, leave thereof having been given in term, but that court had no power or authority to take any action regarding said case. Our statute provides that when a defendant appeals and the judgment is affirmed, the Supreme Court shall direct that the sentence pronounced be executed, shall order the marshal to arrest the defendant and deliver him to the warden of the penitentiary. R. S. 1899, secs. 2705,. 2718, 4286, 4298; State v. Paxton, 126 Mo. 516; State v. Anderson, 126 Mo. 547; State v. Anderson, 98 Mo. 474; State v. Pagels, 92 Mo. 317; State v. Blunt, 110 Mo. 344. (2) The power to parole is purely a statutory one, and the statute limits that power to the time after the conviction of a defendant, and prior to his taking an appeal. R. S. 1899, sec. 2827.
   FOX, P. J.

This is an application for a writ of habeas corpus, the petitioner, Ike Foister, being unlawfully restrained of his liberty, so he alleges, by the warden of the State penitentiary, who holds petitioner, as a prisoner, in said penitentiary.

The return admits the official position of the warden, and also admits that he holds the petitioner and deprives him of his liberty, and pleads a certain conviction, judgment and sentence of the circuit court of Stone county, rendered at the October term, 1905, whereby the petitioner was convicted of the crime of felonious assault, and sentenced to two years in the penitentiary. The return also alleges that the petitioner was granted an appeal from said conviction, judgment and sentence to the Supreme Court of Missouri; and that said Supreme Court affirmed the judgment of said circuit court on the fifth day of March, 1907. That, in pursuance of said judgment of affirmance, the clerk of said Supreme Court issued a commitment, directed to the marshal of said court, commanding the marshal to take the body of the petitioner and deliver him to the warden of the penitentiary'; and that said marshal took the body of the petitioner into his custody and delivered the petitioner to the warden of the penitentiary. The return further alleges that the action of the circuit court of Stone county, on the 11th day of March, 1907, in making an order for the parole of the petitioner, was illegal and void, and in violation of section 2827, Revised Statutes 1899.

A demurrer challenging the sufficiency, of the return and again praying for the discharge of the prisoner, notwithstanding the allegations embraced in the return, was treated and considered as being filed.

OPINION.

The record before us in this proceeding discloses but one question; that is in respect to the power of the circuit court of Stone county to parole the petitioner under the provisions of article 14 of chapter 16 of the Revised Statutes of 1899, relating to the parole of prisoners. The defendant in this cause was convicted in the circuit court of Stone county at the October term, 1905, of the crime of felonious assault and sentenced to two years in the penitentiary. From this judgment of sentence he was granted an appeal to the Supreme court of Missouri and this court on the 5th day of March, 1907, affirmed the judgment of the circuit court, and in conformity to the provisions of section 2705, directed the sentence pronounced in the circuit court to be executed, and in carrying out such provisions the Supreme .Court, under the express provisions of the section above cited, ordered the marshal of said court to arrest the petitioner and deliver him to the proper officer o.f the penitentiary. The circuit court of Stone county, prior to the execution of the process directed to the marshal of this court, undertook by an entry of record to parole the prisoner under the provisions of the article heretofore designated.

The crucial question confronting us is this, did the circuit court possess such power? The power of the circuit court to parole is embraced in the provisions of section 2817, Revised Statutes 1899', which provides: “When any person under the age of twenty-five years shall be convicted of any felony, except murder, rape, arson or robbery, and imprisonment in the penitentiary shall be assessed by the court or jury as a punishment therefor, and sentence shall have been pronounced, the court before whom the conviction was had, if satisfied that such person, if permitted to go at large, would not again violate the law, may in his discretion, by order of record, parole such person and permit him to go and remain at large until such parole shall be terminated as hereinafter provided: Provided, that the court shall have no power to parole any person after he has been delivered to the warden of the penitentiary.”

Section 2827, Revised Statutes 1899, provides that “no parole shall be granted in any case while an appeal is pending, nor shall the action of any court or judge in granting or terminating a parole be subject to review by any appellate court.”

As applicable to the question presented by the record in this cause and bearing directly upon it, are sections 2718, 2705 and 2706, which provide:

“Sec. 2718 — When the appeal is taken, or the writ of error is sued out of by the party indicted, if the Supreme Court affirm the judgment of the court below it shall direct the sentence pronounced to be executed, and the same shall be executed accordingly; if the judgment be reversed, the Supreme Court shall direct a new trial, or that defendant be absolutely discharged, according to the circumstances of the case.
“Sec. 2705 — In all cases where the appeal or writ of error shall be prosecuted by the party indicted in the Supreme Court, and where the punishment assessed shall be imprisonment in the penitentiary, and where the judgment wherein the appeal or writ of error is prosecuted shall be affirmed, such court shall direct the sentence pronounced to be executed, and for this purpose the Supreme Court shall order the marshal of such court to arrest the convict, and deliver him to the proper officer of the penitentiary.
“ Sec. 2706 — Where the Supreme Court shall make an order, as directed in the last preceding section, the clerk ,of the court shall forthwith deliver á certified copy of such order to such marshal, who shall without delay, either in person or by such assistants as the Supreme Court may direct, arrest such convict wherever he may be found in this State, and transport him to the penitentiary, and deliver him to the proper officer thereof.”

It is earnestly insisted by learned counsel for petitioner that the action of the circuit court in paroling the prisoner was proper, and was authorized under the provisions of the statute relating to the parole of prisoners, and that the prisoner is illegally restrained of his liberty by the warden of the penitentiary, which restraint was predicated upon the process issued by this court to its marshal after the affirmance of the judgment. We are unable to give our assent to this insistence. The procedure in this cause after the appeal was granted to the Supreme Court of this State is plainly and expressly provided for by the provisions of sections 2718 and 2705. Under the provisions of those sections it was the duty of this court, if the judgment of the lower court was affirmed, to direct such judgment to be executed, and then follows the provision that this court shall direct its proper officer to execute such judgment. While it may be said that article 14, relating to the parole of prisoners, is a subsequent statute to those providing for the execution of the order of this court of a judgment of an inferior court, yet it is clear, unless there is some express provision limiting the power of this court in accordance with the provisions of sections 2718 and 2705 to execute the judgment of the lower court, the inferior court which rendered the judgment would be powerless to interfere with the proper enforcement of that judgment in accordance with the provisions of the sections heretofore indicated.

It is very earnestly and ably argued by counsel for the petitioner that the proviso in section 2817, which provides that the court shall have no power to parole any prisoner after he has’been delivered to the warden of the penitentiary, by implication confers the power upon such court to enter such order of parole before the prisoner has been delivered to the warden of the penitentiary. That section is only susceptible of one reasonable construction, and that is that it is only applicable where the proceeding is entirely confined to the circuit court. In other words, it simply means that if a defendant is convicted and held for some days before the sheriff conveys him to the penitentiary, at any time before he is delivered to the warden the circuit court may exercise the power of parole, but after the judgment and sentence has been executed and the sheriff has delivered him to the warden, then such proviso is a limitation upon such power. But that section has no application to cases pending in the Supreme Court upon appeal, where, under the plain and express provisions of the statute, it is made the duty of this court, where the judgment is affirmed, to take all necessary steps to enforce the execution of that judgment.

Again, it is insisted that the provisions of section 2827, which provides that no parole shall he granted in any case while an appeal is pending, hy implication confers power upon the circuit court to grant a parole if the appeal is not pending. In other words, the insistence is that the power of the Supreme Court expressly given hy the provisions of section 2706 to direct the execution of the judgment of the circuit court, can he limited hy implication. We are unwilling to give our assent to this insistence. That the Legislature, hy the provisions of section 2827, never intended to curtail or limit the power of the Supreme Court to enforce the judgment of the circuit court, when such judgment was affirmed, in our opinion is too plain for discussion.

Where a defendant is convicted hy the circuit court and judgment of sentence that he he confined in the penitentiary, and an appeal is granted from that judgment to the defendant, under the provisions of sections 2718 and 2705, as heretofore pointed out, the power to execute, and enforce that judgment hy due process directed to the marshal of the Supreme Court, is transferred hy operation of the statute to the Supreme Court, and in our opinion such power should not he and cannot he curtailed or limited hy mere implication. To hold that the power of the Supreme Court in the affirmance of judgments of the character now under consideration, is limited hy implication, would simply place the jurisdiction of appellate and inferior courts in an inextricable state of confusion, and this court would find itself in the anomalous position of being unable to follow the directions of plain provisions of the statute in the enforcement of the judgments of the circuit courts which are affirmed until it could first ascertain as to whether or not after such judgment of affirmance the circuit court would again assume jurisdiction and discharge the prisoner upon parole. We are unwilling to give the sections of the statute applicable to this question any such construction.

We have thus indicated our views upon the legal proposition disclosed by the record, which results in the conclusion that the petitioner is not illegally restrained of his liberty, and it is therefore ordered that he be remanded to the custody of the warden of the State penitentiary, by him to be dealt with according to the provisions of law.

All concur.


text:
    THE STATE v. J. T. SMITH, Appellant.
    Division Two,
    May 14, 1907.
    1. WITNESS: Deaf Mute. A deaf and dumb girl, the prosecutrix in a trial of defendant for rape, is a competent witness for the State.

      2. -: Expert: Bias. The assistant superintendent of the Deaf and Dumb Institute where prosecutrix was educated, is peculiarly fitted to communicate with her by signs and to interpret her testimony to the jury; and whether or not he was unduly biased in her favor is a matter for the determination of the trial court, and if there is no ground for charging -the court with a lack of proper discretion in the matter, the verdict will not be interfered with on that assignment.
    ' 3. -: — : Rape: Deaf Mute. The taking of a deaf and dumb girl, seventeen years old, in intelligence and playful conduct like a child less than eleven years of age, to a hotel, and there registering her as the wife of defendant, and haying her assigned to the same room and bed with defendant, and deflowering her during the night, is rape.
    Appeal from Barry Circuit Court. — Ho#. F. G. Johnston, Judge.
    Affirmed.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) (a) No error was committed in permitting Prof. D. C. McCne to act as interpreter, during the examination of the prosecutrix, who was deaf and dumb. After the officers of the Deaf and Dumb Institute learned that one of their pupils had been mistreated while trying to find her way home, Prof. McCue was sent to Barry county to ascertain the facts and to lay them before the prosecuting attorney. This was simply the duty of said officers, and their action in this matter was not only proper but highly commendable. But, the fact that an officer does his duty, and does it promptly, is no proof that he is prejudiced. In a murder ease, where the interpreter was a witness for the people and was the deputy sheriff who had arrested the defendant, it was held that it was proper for him to act as an interpreter. People v. Ramirez, 56 Cal. 533; Railroad v. Shenk, 131 111. 283. And the United States Court of Appeals decided that a sister of the plaintiff, who also testified as a witness for the plaintiff, was competent to act as an interpreter for some of the plaintiff’s witnesses. Barber v. Odasz, 57 U. S. App. 129. The fact that McCue was a friend of prosecutrix and her instructor at the Pulton school did not disqualify him. In a seduction case, the prosecuting witness being a mute, the court held that a lady friend Of hers was a suitable person to act as interpreter; and the fact of their friendship did not disqualify her. State v. Burns, 78 N. W. 681; Swift v. Applebone, 23 Mich. 252. (b) The Supreme Court of Connecticut said that, even though the prosecutrix, who was deaf and dumb, could communicate her ideas in writing, it was proper for the trial court to procure the services of a teacher from a deaf and dumb school to interpret her testimony. State v. DeWolf, 8 Conn. 93; State v. Howard, 118 Mo. 143; "Whart. Crim. Ev., sec. 375; State v. Weldon, 39 S. C. 322. (2) In arriving at the question of whether or not defendant was guilty, the jury had a right to take into consideration the mental strength of prosecutrix, also the facts that she was seriously afflicted, could not talk, could not hear, and could make almost no noise. State v. Cunningham, 100 Mo. 382; Stephen v. State, 11 Ga. 239; State v. Atherton, 50 Iowa 191; Ebuhart v. State, 134 Ind. 651; State v. McDonough, 104 Iowa 6; State v. Huff, 164 Mo. 480; State v. Williams, 149 Mo. 496; People v. Griffin, 117 Cal. 583; State v. Hann, 73 Minn. 140. Resistance in each case is expected to be only such that the assaulted female is capable of giving, considering the time, place, surroundings, her strength and' that of her assailant. 4 Elliott on Evidence, sec. 3097; Underhill on Crim. Evid., sec. 407; Ransbottom v. State, 144 Ind. 257.
   GANTT, J.

The prosecution in this ease was commenced by an information filed by the prosecuting attorney of Barry county, duly verified, on August 22, 1905, wherein he charged the defendant with rape on Ada Stotts, a female, seventeen years of age, in Barry county, in the month of June, 1905.

The information is sufficient in form and substance and it is unnecessary to reproduce it.

The defendant was arrested and duly arraigned at the September term, 1905, of the Barry Circuit Court, and on his application the cause was continued to the February term, 1906. At said February term the defendant was put upon trial and convicted and his punishment assessed by the jury at fourteen years in the penitentiary. In accordance with the verdict, the defendant was sentenced to the penitentiary, and from that sentence he has appealed to this court.

The State’s evidence tended ”to prove that Ada Stotts, the prosecuting witness, is deaf and dumb and •has been thus afflicted ever since she was two years old. . At the time of the commission of the crime charged, June 8,1905, she was seventeen years old; although in intelligence, she was more like a child. The mother • of prosecutrix testified that she was like a child eight years old in intelligence; the assistant superintendent of the Deaf and Dumb Institute at Fulton testified that she was like a child eleven years old in intelligence, and the physician, who examined her, gave it as his opinion that she was like a child nine or ten years old in intelligence. Although seventeen years old, prosecutrix would follow her mother around like a small child, and would sit down, dress a doll and play with a doll by the hour. For some months prior to June, 1905, prosecutrix had been attending the Deaf and Dumb Institute •at Fulton; and, at the close of the school year, she returned to her home. Prosecutrix was then living with her father and mother southwest of Stotts City, a little town in the western part of Lawrence county. She was accompanied from Fulton by a teacher and other pupils of that school as far as Springfield; there she was placed in charge of the passenger conductor on the Frisco railroad: Prosecutrix had a ticket to Sarcoxie, which was the station where her relatives were to meet her, but by a mistake she did not change cars at Pierce Oity, and was carried on to Ritchey, in Newton county. At Ritchey the conductor took prosecutrix into the depot and placed her in charge of the station agent, she being a stranger and never having traveled over that road before. Prosecutrix was then crying; frightened and suffering from a severe headache. The station agent took prosecutrix to the Sanders hotel, and introduced her to Mrs. Sanders, the landlady. Prosecutrix took dinner and supper at the hotel, and met the defendant who was boarding there. Defendant represented to Mrs. Sanders and also to the station agent that he was an old friend of the Stotts family, and offered to take care of prosecutrix; lie did not tell prosecutrix that he was acquainted with her people. During the afternoon, defendant took prosecutrix to a drug store, where he purchasd some ice cream for her, also some candy and medicine. At defendant’s suggestion, prosecutrix ate the ice cream and candy and took the medicine; this was behind the partition at the back of the drug store. Then defendant kissed prosecutrix and tried to take improper liberties with her, but she struck his hand. Defendant, who seems to have been a good scribe and who talked to prosecutrix by writing, persuaded prosecutrix to go to Monett, to have a good time, and she consented to go with him. Accordingly, the two left Ritchey about 7:30 p. m., and arrived at Monett about nine*of the same evening. Before leaving the hotel at Ritchey, the defendant changed his clothes, put on a clean collar and tie and told Mrs. Sanders that he was going to a party out in the country. Mrs. Sanders accused him of intending to go off on the train with prosecutrix, but defendant denied it, saying that he was going to a party. Mrs. Sanders said, “You are old enough to see' after that girl; you could take care of her and see that she gets home all right, but I don’t know whether you will do it or not. ’ ’ On arriving at Monett, defendant and prosecutrix went straight to the hotel, where the defendant registered under the name of “Mr. and Mrs. Lawrence.” Defendant asked Mr. Swartzell, the proprietor of the hotel, for a room and was assigned to room twelve, which was a front room. Mr. Swartzell went with defendant and prosecutrix up to that room, lighted a lamp for them, and soon returned with a pitcher of water. Prosecutrix testified that she was surprised to see that there was only one bed in the room; that she sat down and began to cry, and wrote to defendant that she wanted to go home. Defendant told her to take off her clothes and get in bed, and she, being frightened, did so.„ Defendant looked angry and tried to compel prosecutrix to yield to him, hut she wrapped herself up in a sheet and tried to bite him. Finally, defendant forcibly had sexual intercourse with her, and repeated the same during the night. Prosecutrix made as much noise as she could, hut on account of a goiter, her throat and voice were very weak. Prosecutrix and defendant remained in.that room all night, arose the next morning about eight and went down to breakfast. After eating they took the train for Pierce City, where prosecutrix was met by her father and cousin, and the defendant was arrested. In the course of a few days, Dr. King made an examination of prosecutrix and found that the hymen had been ruptured and that her parts were badly bruised and swollen; and the mother testified to the injured condition of prosecutrix. The State’s evidence also showed that the town of Monett is on the line between Barry and Lawrence counties, but that the Swartzell hotel is situated in Barry county.

The defendant admitted having sexual intercourse with prosecutrix in the hotel at Monett on the night in question, but denied using any force or threats. Defendant introduced some physicians who testified that some deaf and dumb persons are equally as intelligent as persons of the same age, not so afflicted. He proved by Mr. Swartzell that he noticed nothing unusual in the conduct of either the defendant or prosecutrix the night they came to his hotel, and nothing unusual at the table th,e next morning. Mr. Swartzell also testified that he and his wife sat out on the front porch that night till 10:30 and heard no noise in the defendant’s room, which was a front room of the second story. This witness further testified that he observed nothing unusual in this bedroom the next morning; that the sheets were wrinkled about as they ordinarily are. He further stated that, although he saw prosecutrix that night and the next morning, and waited on her at the table the next morning, he did not know that she was deaf and dumb.

The court instructed the jury fully on all the points of law arising under the evidence in the case and as they are such as have often met the approval of this court it is deemed unnecessary to burden this opinion with their reproduction. No brief having been filed in this court on behalf of defendant, we have been compelled to examine the record in the light of the motions for a new trial and in arrest of judgment!

1. As already said, the information sufficiently charges the offense of rape. [State v. Dilts, 191 Mo. l. c. 667.]

2. No error was committed by the court in permitting the prosecuting attorney to state to the jury in opening the case that he expected to show to the jury that the knowledge of the prosecutrix is limited, that she compares in information with a girl between ten and eleven years of age, but if there had been, this is not assigned as error in the motion for new trial.

3. It was assigned as a ground for new trial that the court erroneously permitted Prof. McCue of the State Deaf and Dumb Institution at Fulton, to act as interpreter of the prosecutrix. That he was peculiarly fitted to communicate with the prosecutrix by signs and interpret her evidence to the jury is not controverted, but it is said that he was unduly biased in her favor. This was a matter for the determination of the circuit court and we see no-ground for charging that court with any want of proper discretion in the matter.

That the prosecutrix was under our laws a competent witness was settled in State v. Howard, 118 Mo. l. c. 143 and 144; 5 Am. and Eng. Ency. Law (1 Ed.), 119, and cases cited; State v. Burns, 78 N. W. 681; Swift v. Applebone, 23 Mich. 252.]

4. As to the other objections to testimony we have carefully read the record and find no reversible error.

5. This record reveals a deplorable picture of human depravity. The ruining and deflowering of the poor deaf and dumb girl under the facts and circumstances detailed in evidence was rape within the meaning of our laws and the jury were fully justified in reaching the verdict they did.

The judgment is affirmed.

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


text:
    JOSEPHINE RIEGEL SOTEBIER v. ST. LOUIS TRANSIT COMPANY, Appellant.
    Division Two,
    May 14, 1907.
    1. INSTRUCTIONS: Assumption of Uncontroverted Fact: Loss of Wages. The instructions may assume the truth of a proposition which is established by the undisputed evidence. And so, where the undisputed evidence was that plaintiff at the time of her injuries was receiving twelve dollars per month and her board, and there was no evidence that her services were not reasonably worth that, and there was no evidence that she had been able to perform any labor or earn any wages since the accident, it is not error to instruct the jury to allow her for loss of her wages.
    2. -: Medical Expenses Incurred. It is the debt incurred by plaintiff for necessary medical attention, and not its payment, that establishes defendant’s liability to pay in personal injury cases. It is unnecessary to allege payment. But where the petition charges that plaintiff “has expended and will be required To expend large sums of money for hospital fees, nurses, doctor’s bills, and' medicines,” she is entitled to recover not only for those she has already paid, but the reasonable value of the services already necessarily rendered and not paid for, and also the reasonable value of services necessary in the future.
    3. -: -: In Future: Evidence. Evidence showing that plaintiff is a hopeless paralytic as the result of her injuries, and would constantly grow worse, was evidence to authorize a clause in tbe instruction directing tbe jury to include in their verdict expenditures which might be necessary for plaintiff to incur in the future.
    4. -: -: -: Possibly Might. An instruction which tells the jury that they may allow plaintiff for any reasonable and necessary expenses for medical attention which she may incur in the future, does not mean that the jury may allow her for any expenses she “might possibly” incur.
    5. -: -: -: Matter for Jury. No positive evidence or opinion can be given as to what medical attention a plaintiff, whose injuries are permanent and consist of paralysis from the hips down, will require. The most that can be done in such a case is to show that the character of the injuries are such that plaintiff will probably need medical attention in the future, and then tell the jury that they may allow such sum therefor as the evidence shows would be just and reasonable. The jurors are as capable of fixing a proper award for such contemplated expenses as anyone.
    6. EVIDENCE: Impeachment. .Evidence which is admissible for any purpose cannot be excluded because it is inadmissible for other purposes. Evidence for plaintiff, in rebuttal, that a physician at the hospital (who was in the employ of defendant) pulled her up and down the hall in an effort to make her walk until one of the Sisters told him to take her to bed where she belonged, is incompetent as hearsay and as tending to prove no issue in the negligence case, but it is competent for impeaching the physician who had testified that no one stopped him from trying to make plaintiff walk. If the defendant desired to have it limited to the purposes for which it was competent, it is its duty to ask an instruction so limiting it.
    7. EXCESSIVE VERDICT: $10,000. Plaintiff, as a result of her injuries, is paralyzed from her hips down, her limbs are becoming atrophied, her bowels refuse to perform their normal functions in the natural way, nor from sensation can she tell when she should look after them in that regard; she is sleepless, nervous, and suffers from headache, and her condition is growing worse. Held, that it cannot be seen how, if the jury believed her evidence to this effect, their verdict for $10,000 could have‘been less.
    Appeal from St. Louis City Circuit Court. — Noit. Daniel D. Fisher, Judge.
    Apfiemed,

      Boyle $ Priest, Edward T. Miller and T. E. Francis for appellant.
    (1) Instruction number 3, on tbe measure of damages, given on behalf of plaintiff is erroneous, because: (a) It assumed that plaintiff lost wages as a result of her injuries. Plummer v. City of Milan, 70 Mo. App. 598; Evans v. Joplin, 76 Mo. App. 22; Fullerton v. Fordyce, 121 Mo. 13; Freeman v.‘ Railroad, 95 Mo. App. 104. (b) It permitted plaintiff to recover for medical expenses incurred, when the petition alleged that they had been paid. Muth v. Railroad, 87 Mo. App. 422; Stanley v. Railroad, 112 Mo. App. 601; Nelson v. Railroad, 113 Mo. App. 659. Curtis v. McNair, 173 Mo. 291, is distinguishable from the case at bar and those above cited, (c) It allowed a recovery for future medical expenditures, in the absence of testimony that such expenditures would be necessary or what their probable amount would be. 6 Thompson’s Commentaries on Negligence, sec. 7333; Railroad v. Flood (Tex.), 70 S. W. 331; Duke v. Railroad, 99: Mo. 351; Smith v. Railroad, 108 Mo. 243; Morris v. Railroad, 144 Mo. 500; Robertson v. Railroad, 152 Mo. 390; Slaughter v. Railroad, 116 Mo. 275. (d) It allowed a recovery for future medical expenses which “probably might” be sustained by plaintiff, instead of limiting the recovery to such expenses as the evidence showed it was reasonably certain plaintiff would be compelled to sustain. Albin v. Railroad, 103 Mo. App. 308; Schwend v. Railroad, 105 Mo. App. 534; Walker v. Raliroad, 106 Mo. App. 321; Bradley v. Railroad, 138 Mo. 301. (2) The court committed prejudicial error against defendant by permitting plaintiff to testify that a Sister in the hospital had told the doctors, who were assisting plaintiff to walk, “to take her where she belonged.” (a) It was inadmissible to prove any issue in the case, because, at best, it was merely a statement of the opinion expressed by the Sister. Spencer v. Railroad, 120 Mo. 154; Koenig v. Eailroad, 173 Mo. 720; Allen v. Eailroad, 182 Mo. 437. (b) It was inadmissible to prove any issue in tbe case because it was hearsay. (c) It was inadmissible to impeach the evidence of Dr. Grim because the proper predicate for its introduction as impeaching evidence was not laid. Gregory v. Chouteau, 36 Mo. 159; State v. Grant, 79 Mo. 132; Spohn v. Eailroad, 116 Mo. 629. (3) The court committed prejudicial error in commenting on the testimony of Thomas Lacey, by stating that “the jury will determine what weight is to be given this testimony— whether any, or how much,- and1 all that. ’ ’ 21 E,nc. PI. & Pr., 95, 994; Shakeman v. Potter, 98 la. 66; 1 Blashfield, Inst, to Juries, sec.' 106; Davidson v. Wallingsford, 88 Tex. 619; Thompson on Charg. Jury, p. 58; State v. Cushing, 29 Mo. 215; State v. Stout, 31 Mo. 406; State v. Meagher, 49 Mo. App. 589; Schmidt v. Eailroad, 149 Mo. 283. (4) The verdict is grossly excessive.

      McSham S Goodwin for respondent.
    (1) A careful reading of instruction 3 will show that the court did not assume that plaintiff lost wages as a result of her injuries. (2) A trial court may, with entire -propriety by instructions to the jury, assume the affirmative of an issue of fact, which is established by the uncontradicted evidence. Fullerton v. Fordyce,.121 Mo. 1; Hall v. Eailroad, 74 Mo. 298; Barr v. Armstrong, 56 Mo. 589; Caldwell v. Stevens, 57'Mo. 595; Bobertson v. Drain, 100 Mo. 273; Hartman v. Muehlbach, 64 Mo. App. 565; Taylor v. Iron Co., 133 Mo. 348. (3) Appellant’s point that instruction 3 erroneously allowed a recovery for medical expenses when the petition alleged they had been paid: (a) Having waived any objection to the admission of the testimony and allowed liabilities to' be shown as expenditures, it is too late after verdict to complain of an instruction bottomed on that theory. Spengler v. Railroad, 108 Mo. App. 329 ; Bragg v. Railroad, 192 Mo. 331. (b) Appellant can not complain on appeal that instructions were based on the evidence and not on the pleadings in a ease as shown on this record. Bragg v. Railroad, 192 Mo. 331. (c) In a case of this kind there is no difference between expenses incurred and expenses paid. Curtis v. McNair, 173 Mo. 27.0; Mirrielees v. Railroad, 163 Mo. 470; Gorham v. Railroad, 113 Mo. 408. (d) Respondent was entitled to recover for expenses incurred. Mirrielees v. Railroad, 163 Mo. 470. (4) Appellant’s point, that said instruction permitted a recovery for future medical expenses, in the absence of testimony showing a reasonable probability of the necessity of such expenses, and the probable amount thereof, is not warranted by the record, (a) Where the injuries of the plaintiff are shown to he the same from the day of the accident to the day of the trial; that nowhere has there been any change in her condition, except for the worse,.and'the evidence shows that her condition will remain the same throughout life; and the period of nearly one year having elapsed between the accident and the trial, the reasonable value of plaintiff’s medical expenses during that time is a sufficient standard by which to measure future medical expenses, where it is shown that her condition will be the same as it has been, throughout life, and especially so is this true when no charge has been made for the temporary and immediate expenses just immediately after the accident. This is the same measure adopted in estimating future loss of earnings. 1 Joyce, Damages, secs. 229-230; Goodhart v. Railroad, 177 Pa. St. 1. (b) Where plaintiff has shown that she is entitled to nominal damages, the court cannot instruct a verdict for defendant. Owen v. O’Reilly, 20 Mo. 603; Goldman v. Wolff, 6 Mo. App. 490; Brevard v. Wimberly, 89 Mo. App. 331. (c) And under such circumstances where an instruction is given authorizing a recovery, it will not he held had where no specific objection pointing out the defect was made. Feeney v. Railroad, 116 N. Y.'381." (d) The cause must be tried on the same theory in the appellate court as it was in the lower court. Bragg v. Railroad, 192 Mo. 331. (e) Where an instruction is good as far as it goes, and defendant desires to restrict plaintiff’s right to recover to1 more limited grounds than were covere-d by the instruction, defendant should ask an instruction to that effect, otherwise it waives error that may be caused thereby. Longan v. Weltmer, 180 Mo. 322; Wheeler v. Bowles, 163 Mo. 398; Harmon v. Donohoe, 153 Mo. 263; Robertson v. Railroad, 152 Mo. 382; Mathews v. Railroad, 142 Mo. 645; Browning v. Railroad, 124 Mo. 55 ; Par-man v. City, 105 Mo. App. 691; Dunn v. Railroad, 81 Mo-. App. 42. (5) The verdict is not excessive, (a) Verdicts for the same and greater amounts where the injury was not as serious as here have been sustained. Cambrón v. Railroad, 165 Mo. 543; Cobb v. Railroad, 149 Mo. 6091; Hollenbeck v. Railroad, 141 Mó.'99; Barr v. City, 121 Mo. 23; Waldheim v. Railroad, 87 Mo. 37. (b) The trial court was in a better position than this court to determine this matter. In the absence of most obvious error or mistake the judgment of that court should not be disturbed. Bolton v. Railroad, 172 Mo. 92. (c) A verdict supported by substantial evidence will not be vacated on the ground that it was excessive unless it is the manifest result of mistake or prejudice. Taussig v. Schields, 26 Mo. App. 318. (6) On the record the judgment was for the right party and in the absence of error affecting the merits, it should not be reversed.. Bellismie v. McCoy, 1 Mo. 318; Mitchell v. Bradstreet Co., 116 Mo. 226; Jordans v. Eans, 97 Mo. 587; Valle v. Picton, 91 Mo. 207; Railroad v. Holladay, 131 Mo. 440; Com. Co. v. Block, 130 Mo. 668; Brandon v. Carter, 119 Mo. 572; Herman v. Hartman, 189 Mo. 20.
   FOX, P. J.

This action was instituted in the circuit court of the city of St. Louis on May 15,1903, hy plaintiff against the defendant, asking $20,000 damages for personal injuries received through the alleged negligence of defendant, hy prematurely starting a car, while she was in the act of alighting therefrom, at Broadway and Washington avenue in said city.

The allegations of the petition, in so far as they are material in this case, are as follows: That she was a passenger on a north-hound Broadway car; that when it reached Washington avenue, it stopped for the purpose of taking on and discharging passengers; that while so stopped she started to alight from the same and that while so doing defendant negligently and carelessly started said ear, thereby throwing her to the ground with great force and violence, and that by reason thereof her spine was violently wrenched, broken and sprained, and that by reason thereof she was paralyzed in her lower limbs and rendered utterly unable to stand of walk without support; that she also received severe cuts and bruises on her back and head which caused concussion of the brain, and that by reason of said injuries she is a complete nervous wreck, and will suffer and- remain a paralytic and nervous wreck for life. That on account of said injuries she has been and will be throughout life unable to pursue her usual occupation and that she has expended and will throughout life be compelled to expend large sums of money for hospital fees, nurses, doctor bills, medicine, and transportation fees, such as carriage hire and attendants in going from one place to another.

The answer was a general denial and a plea of contributory negligence and carelessness on her part in attempting to alight from the car while in motion, at a time and place when and where it had not stopped or slowed down for the purpose of allowing passengers to alight therefrom, and while said car was running at a rate of speed that made it dangerous for her to alight from same.

The reply was a general denial of the new matter stated in the answer.

The plaintiff introduced evidence tending to prove that on the evening of March 8, 1903, about 9:30 p. m., she and her sister, at Broadway and Gratiot street, became passengers on one of defendant’s north-bound cars, on'the Broadway line; that the car was crowded with passengers, some standing in the aisle, some on the platform and at least one on one of the rear steps of the car; that it was customary for passengers to enter and leave that class of cars at both front and rear doors; that plaintiff and her sister were riding near the front end of the ear; that after entering the car it proceeded northward toward Washington avenue, an intersecting street, and that just before reaching the intersection, the motorman, who was on the front platform, said to the passengers in that end of the car, “Please step out this way;” that the car ran a little further and stopped at the northeast corner of Broadway and Washington avenue, for the purpose of receivng and discharging passengers, which was one of the usual places for that purpose; that several passengers entered and left the car at that point, at both front and rear doors; that plaintiff’s sister and some five or six other passengers preceded her and that just in front of plaintiff there was an old gentleman who moved slowly and was also alighting from the car; that he, the sister and the other five or six passengers mentioned, safely alighted from the front end of the car; that)the old gentleman obstructed the passage of plaintiff and impeded her egress from the car; that she followed immediately after him to the platform and onto the step of the car; he stepped off and she immediately attempted to follow him and while in the act of stepping from the step of the car to the pavement, the car was suddenly started forward with a jerk and without warning and thereby threw her to the street with great force and violence, she striking the pavement upon her back and head; that the car stopped a second time in a few feet; that she was rendered unconscious by the fall, and was picked up from the street by a passenger by the name of Daush and pulled to the sidewalk near the northeast comer of those two streets; that she was unconscious and was unable to stand or walk, and said Daush and her sister picked her up and took her to á drug store on the corner of Broadway and Lucas, a block distance from the point of injury, and she was shaking like a leaf and appeared to be unconscious. An ambulance was sent for and she was carried to and placed in it and sent to the city hospital, where she remained that night; and next morning she was taken in a carriage to Mrs. Cavender’s residence, the lady for whom she and her sister were employed at the time of the injury, where she remained one week and was then taken to St. John’s hospital, where she remained four weeks and from there she was taken to her brother’s home and later to that of her mother at Washington, Missouri; that her injuries consisted of a large bruise on the head, bruises and cuts on different portions of the body and a strained or fractured spine and a rupture of the spinal cord; that as a result of said injuries she suffered great physical pain and mental anguish, and was still suffering at the time of the trial; that she has been wholly incapacitated from performing manual labor; that she has been completely paralyzed from the hips down ever since the injury, and had not from that time to the time of the trial stood on her feet or walked a step, and that she would never be able to do so in the future, but was growing and would continue to grow worse; that her lower limbs "were becoming atrophied and would continue .to do so; that she is and has been ever since the injury very nervous and sleepless and suffering more or less with headache; that the lower bowels are paralyzed and she cannot, in the natural way, answer to the calls of nature, nor from sensation tell when she should look after herself in that regard, but is compelled to depend upon a clock for that information, and at stated times cause a passage, by the assistance of physical means; that she is utterly helpless and cannot go from one place to another unassisted, and that her injuries are permanent; that at the time of the injury she was receiving the sum of twelve dollars per month for her services, together with board and lodging; and had incurred on account of her. injuries the sum of $75 for doctor bills, medicines and nurses, etc.; that she was a strong and a perfectly well woman before the injury.

Then the defendant introduced evidence tending to prove that the car in question stopped on the north side of Washington avenue, that while standing there passengers entered and departed from the car, and then it started on north, and when near the center of the block the plaintiff stepped forward and walked off the front end of the car, some of the witnesses stating that she stepped off backwards; that the car was running five or six miles an hour at the time,* and the place where she stepped off was not at a usual or safe place for passengers to alight. That while plaintiff was at the St. John’s hospital she, with slight assistance of a physician, walked the full length of the hall and back, the hall being half a block long, and that she remained there about four weeks and was improving rapidly when she left there; that she was not paralyzed, but was suffering from what is known as hysterical paralysis, from which she would fully recover in a short time.

During the "cross-examination of Thomas Lacey, a witness for defendant, the following occurred:

‘ ‘ Q. Mr. Lacey, are you positive you gave the conductor, that was on the stand, your name? A. I wouldn’t say that was the conductor.
“Q. Is this the woman (indicating) you saw that was injured that got off the car then? A. I can’t recognize her
“Mr. Goodwin: Now, your Honor, I want to -move that every hit of this testimony of this witness with reference to this accident happening- at Washington avenue and Broadway he stricken out.
‘ ‘ The Court: You want the court to try your case, and I can’t do that. .The jury will determine what weight is to be given to this testimony — whether any or how much, and all that.
“Judge Talty: I object to the remarks of the court.
‘ ‘ The Court: It is not for the court to say whether it applies to this case, to this accident or some other accident; the jury must determine that.
“Mr. Goodwin: Well, I want to say that this— “The Court: It is useless to discuss it now. You will discuss that to the jury.”

The court then, at the request of plaintiff, gave three instructions and one of its own motion, in behalf of plaintiff, to the giving of all of which defendant duly excepted; but as no complaint is urged against any of them, except the one numbered three, the others will not be noticed further. Number three is as follows:

“3. The court instructs the jury that if you find for the plaintiff you should allow her damages at such a sum not exceeding $20,000' as you believe from the evidence will he a fair and reasonable compensation to her; first, for whatever pain of body and mind she has suffered by reason of her said injuries, and that she will hereafter suffer, if you find from the evidence she has suffered or will suffer any; second, for the loss of wages heretofore occasioned by said injuries and shown by the evidence, and any loss of her earnings you may find from the evidence, if any, she will hereafter suffer by reason of said injuries; and, third, for any reasonable and necessary expense that you may find from the evidence she has or may hereafter incur for medical treatment on account of her said injuries.”

And at the request of the defendant the court gave on its behalf eleven instructions, and refused one as asked, but modified it and gave- it in the modified form, to which action of the court in -modifying and giving that one it duly excepted, but makes no conw plaint in that regard here, so we will take no notice of it.

The court on its own motion instructed the jury as to the burden of proof and as to a three-fourths verdict.

The cause was submitted to the jury under the instructions and they found for plaintiff and assessed her damages at the sum of $10,000. Motions for new trial and in arrest were duly filed. Defendant also filed an affidavit in support of the motion for.new trial, alleging prejudice of one of the juror's; and plaintiff filed three counter affidavits. The court overruled both motions and defendant duly excepted and has brought the case here by appeal, and assigns errors as follows:

1. The court erred in giving plaintiff’s instruction numbered 3 on the measure of damages.

2. The court erred in admitting incompetent evidence.

3. The court erred in malting prejudicial comments on the testimony of defendant’s witness, Thomas Lacey.

4. The court erred in refusing to set aside the verdict as being excessive.

OPINION.

I.

The first complaint lodged against the action of the trial court is in giving instruction numbered 3, which is copied in the accompanying statement. Defendant points out four specific objections to it; because, first, it assumes plaintiff lost wages as a result of her injuries ; second, it permitted plaintiff to recover for medical expenses incurred when- the petition alleged that they had been paid; third, it allowed a recovery for future medical expenditures, in the absence of testimony that such expenditures would he necessary or what their probable amount would he; and fourth, it allowed a recovery for future medical expenses which probably might” he sustained by plaintiff, instead of limiting the recovery to such expenses as the evidence showed it was reasonably certain plaintiff would he compelled to expend. We will dispose of these assignments in the order presented.

Defendant contends that the instruction assumed she lost wages as a result of her injuries. The uncontradicted evidence of the- plaintiff, her sister and the lady who employed her. was to the effect that she was earning twelve dollars a month at the time of her injury, and there is not a particle of evidence in the case tending in the remotest degree to show she has been able to perform any labor or earn any wages since that time, and all her evidence tended to show she has been totally unable to work since she was injured. This court has many times held that the trial court may in its instructions to the jury assume the truth of a proposition which is established by the undisputed evidence in the case. [Hall v. Railroad, 74 Mo. l. c. 302; Barr v. Armstrong, 56 Mo. l. c. 589; Fullerton v. Fordyce, 121 Mo. l. c. 13; Taylor v. Iron Co., 133 Mo. 349.]

There was no controversy whatever in this case as to what wages plaintiff was earning at the time of the accident or that her services were not reasonably worth twelve dollars per month. The facts before the jury were sufficient to submit that issue to it. We are, therefore, of the opinion that there is no merit in that objection. [Wise v. Railroad, 198 Mo. l. c. 561-2.]

It is next contended that said instruction is erroneous because it permitted the plaintiff to recover for medical expenses incurred, when the plaintiff alleges that they had been paid. It is the debt incurred and not its payment which establishes thé liability of the defendant to pay for medical expenses necessarily expended by plaintiff, in personal injury cases. It is wholly immaterial whether they have been paid for by plaintiff or not. It was neither necessary to allege or prove payment. That could in no wise affect defendant’s liability for debts so incurred. The petition states “that she has expended and will be required to expend large sums of money for hospital fees, nurses, doctor bills and medicines.” The evidence shows she not only incurred obligations for those things, but it also shows she has paid for some of them and will be required to contract additional indebtedness for that account in the future. It was wholly unnecessary to allege payment of those expenses. A complete cause of action was stated without that allegation, and it may be treated as surplusage. [Anderson v. Railroad, 161 Mo. l. c. 432; State v. Watson, 141 Mo. l. c. 341.]

“A pleader only runs the risk of narrowing the basis of his ca,se when he goes beyond the necessary and substantive fact and indicates” that the indebtedness incurred had been paid, and says nothing about future expenses, which will necessarily have to be incurred. [Wise v. Railroad, 85 Mo. l. c. 188.]

In this casé, however, it will be observed by reading the petition that the pleader did not. rest with the allegation that the expenses had been paid, but went further and alleged that it would he necessary to incur obligations for future medical treatment. The latter allegation removes from the case even the technical rule of pleading as stated in the two cases last cited.- [Curtis v. McNair, 173 Mo. 270.] We are, therefore, of the opinion that there is no merit in this objection.

The third objection lodged against this instruction is that it permits the jury to include in its verdict expenditures which might be necessary for plaintiff to incur in the future, on account of her injuries, when there was no evidence to show that they would be necessary, or what they would be reasonably worth. We are also of the opinion that this objection is without merit, because at the trial the evidence showed that plaintiff had three physicians and one or two of them testified that she was then still under their charge and was a helpless, a suffering paralytic, and would never improve, but would continually grow worse. If that condition of her health does not tend tó show she will need medical attention in the future, we are unable to conceive a case where such attention would be necessary. As to what attention she will require during her life and its probable value are matters of more or less speculation. No one can tell how long she will live, what her suffering will be or what amount of medical attention she will require. The jurors are as capable of judging of those matters as any one else could be. [See Curtis v. McNair, 173 Mo. 270.]

' And the last objection urged against instruction numbered 3 is that it permitted the jury to allow- for medical expenses which “probably might”be sustained by plaintiff, instead of limiting the recovery to- such expenses as the evidence shows it was reasonably certain the plaintiff would be compelled to expend. We have carefully considered that instruction and have reached the conclusion that it is not susceptible of the construction placed upon it by defendant. It does not tell the jury that they may allow her for medical expenses which “probably might” be incurred by her; but, upon the contrary, it tells the jury, in express terms, that they may allow her for any reasonable cmd necessary expenses for medical attention which she may . incur in the future. And what we have said regarding the last objection is equally applicable to this one; but we will add that we are entirely unable to see how any witness could, with any degree of certainty, testify as to what medical attention she might require during the remainder of her life. No physician or expert can tell how long plaintiff will live; what her pain and suffering will be, if any; what kind and how often she will need medical treatment nor what such services would be reasonably worth in the future. The most the court can do in such cases is to call the attention of the jury to the injury, if permanent, and if the evidence shows that the character of the injuries is such that the party will probably need medical attention in the future, then tell them that they may allow such sum there-. for as the evidence and facts in the case show would be just and reasonable for such attention and services. We do not wish to be understood as stating or holding that, in injuries of a temporary nature, where the patient will shortly recover, it would be impossible to ascertain with some degree of certainty as to what future medical treatment such a person would require, or the reasonable value thereof. -We are of the opinion that the instruction given fairly presented the law upon that question to the jury, and are, therefore, of the opinion that there was no error on the part of the court in giving it.

n.

It is next contended that the court committed prejudicial error in permitting the plaintiff in rebuttal to testify that a Sister in the hospital had told the doctors who were assisting the plaintiff to walk, to “take her where she belonged. ’ ’ This assignment couched in the language in which it is does not fully and clearly present the exact ruling of the court on the admissibility of the evidence referred to. In order to obtain a olear view •of the court’s ruling it will be necessary to .set out Dr. Grim’s testimony upon that point, and in the .light of that evidence we can better see the ruling of the court on the admission of the plaintiff’s said testimony in rebuttal, which is as follows, in chief:

“Q. .Do you know why she left [the hospital]? What was her condition when she left? A. Well, when she left she had been able to walk with some assistance, the full length of the hall of St. John’s Hospital and back.
“Q. How long is that hall. A. Half a block.
“Q. The hall is half a block in St. John’s Hospital? A. Yes, sir.
“Q. You say she had been able to walk with some assistance the full length of that hall and back? A. Yes, sir.
“ Q. How do you know that? A. Because I helped her myself.
“Q. How much assistance did you give her? A. Well, a part of the time I just reached-out my hand, holding her fingers at arm’s length, and I, of course,, tried to get her to walk with as little assistance as possible. I would allow my hand to move as she would attempt to bear weight on it.”
On cross-examination:
“Q. The nurses are Sisters of Charity there, are they not? A. Not all of them.
“Q. Some of them are? A. Yes, sir.
“Q. Now, isn’t it a fact that you started to teach or try to get this patient to walk and dragged her around there and two of the nurses interfered and told you if you didn’t quit it you would kill the woman. A. No, sir.
“ Q. Isn’t it a fact that two of the nurses stopped you from trying to make her walk? A. No, sir; that is very far from a nurse’s position.
“Q. Isn’t it a fact that somebody stopped you from making her walk? A. No, sir.
“Q. Or trying to make her walk? A. No, sir.”
The plaintiff was called as a witness in rebuttal and testified over defendant’s objections, as follows:
1 ‘ Q. Did you hear Dr. Grim' testify that you walked with his assistance out at the hospital? A. Yes, sir, I did.
“Q. Is that true or not? A. No, sir.
“Q. State what happened? A. They dragged me up and down the hall, the nurse and the doctor did, and the Sister in the hospital by the name of Catherine told them to bring me to bed where I belonged. ’ ’ '
“Judge Talty, for defendant: I object to that and ask that it be stricken out.
“The Court: That last statement as to what the nurse stated is stricken out.
“Mr. Goodwin,Tor plaintiff: I asked the doctor that very question — the time, place and everything, and he stated that it didn’t occur. That very thing I asked him.
“The Court: Yes, since you call my attention to it, that may stand. The objection is overruled.”

The action of the court in admitting this evidence of the plaintiff in rebuttal is assailed upon three distinct grounds, because; first, it does not tend to prove any issue in the case, and, at best, was merely the statement of the opinion expressed by the Sister; second, it is hearsay, and, third, it was inadmissible to impeach Dr. Grim, because the proper predicate for its introduction was not laid. We will dispose of the first and second assignments together.. It is true the evidence objected to does not tend to prove any issue in tbe case and even if it did it is clearly hearsay, -merely stating the opinion of the Sister as to the condition of plaintiff at the time Dr. Grim was assisting her to walk. It was therefore inadmissible upon both of said grounds. This is not controverted by plaintiff, and the rule of evidence is so well and firmly settled upon those questions that it would be a useless waste of time and energy to cite authorities in support thereof. But we do not understand that this evidence was offered or admitted for either of said purposes. The language of the court and of plaintiff’s counsel, when the motion to strike out this evidence was made, showed clearly that it was offered and admitted merely for the purpose of impeaching Dr. Grim’s testimony. He had previously testified that while plaintiff was in St. John’s Hospital he was one of the assistant physicians of that institution (in pay, however, of defendant company), 'and that with his slight assistance she had walked the whole length of the hall and returned, and in order to show that statement of his to be false, and for the purpose of impeaching him, the questions were asked him, if he did not, in the presence of plaintiff and one of the nurses, pull or drag her from one end of. the hall to the other, and that the nurse at the time protested. .He had himself previously stated the time, place and circumstances, where the. supposed conversation took place, and for that reason it was not necessary to go through the empty form to have him repeat his former evidence upon that question. He denied dragging plaintiff and testified that the Sister did not protest against his doing so, and when the motion was made by defendant’s counsel to strike out that evidence the court' did so, but subsequently, after having its attention called to the fact that the proper foundation had been laid to impeach the doctor, the court said: “Yes, since you call my attention to it, that may stand. The objection is overruled.” This shows clearly that the evidence was admitted only for the purpose - of impeaching Dr. Grim, and not for the purpose of proving an affirmative substantive fact in the case. Evidence which is admissible for any purpose cannot be excluded simply because it is inadmissible for other purposes. [Union Savings Asso. v. Edwards, 47 Mo. l. c. 449; State v. Baldwin, 56 Mo. App. l. c. 426; Standard Milling Co. v. Railroad, 122 Mo. 258.]

Where the evidence is competent for any purpose, it is the duty of the court to admit it when offered, and if it is desired to have it limited in its effect then it is the duty of the opposite party to ask an instruction for that purpose. [Standard Milling Co. v. Railroad, 122 Mo. 258.] But the defendant in this case suffered no injury by failing to ask such an instruction, because the court in admitting the evidence by its language limited the evidence to the impeachment of the evidence of Dr. Grim, as clearly as if it had been done by an instruetion. Clearly this evidence was admissible for that one purpose, and there was no error in the action of the court in admitting it.

The defendant complains of the action of the court in stating, while witness Thomas Lacey was testifying, that ‘ ‘ the jury will determine what weight is to be given this testimony.” We.see no merit whatever in this assignment; first, because the ruling of the court was a correct declaration of the law, and there is scarcely a case tried by a jury where such an instruction is not asked by one or both parties, and given by the court, and in this case this language is. found in defendant’s tenth instruction asked by it and given by the court: “. . . and having thus carefully considered all these matters, the jurors must fix the weight and value of the testimony.of each and every witness, and the evidence as a whole, and you are not compelled to accept as true any statement of any witness, unless the jurors find such statement to be true,” etc. The expression of the court was not made as a comment upon the evidence of Lacey, but as a reason why he should not strike out his testimony as requested by defendant’s counsel.

Finally, it is insisted by learned counsel for appellant that the verdict in this cause is excessive and for that reason ought not to be permitted to stand. The verdict is for ten thousand dollars, and after reading in detail all of the testimony disclosed by the record, it would be difficult to understand, if the jury believed the testimony introduced by the plaintiff, how the verdict could have been for any less sum. "We shall not undertake to weigh the testimony of the witnesses respecting the nature and character of the injuries of the plaintiff. This was exclusively the province of the jury and if they placed reliance upon the proof as introduced by the plaintiff, then we have no hesitation in saying that their verdict is fully supported. The testimony upon this subject as introduced by the plaintiff, which is fully disclosed by the record, not only shows that her injuries were of a very serious and painful character, but as well that the result of such injuries has left her a complete physical wreck, in which condition she must remain the balance of her life. We are unwilling to say that this vérdict should be disturbed on that ground.

Our views upon the legal propositions presented by the record before us have been fully indicated, and finding no reversible error the judgment of the trial court should be affirmed, and it is so ordered.

All concur.