source: Caselaw Access Project

author: FOX, P. J.

license: Public Domain

text:
    THE STATE v. CLARENCE STANDIFER, Appellant.
    Division Two,
    February 18, 1908.
    1. INFORMATION: Forgery: Consideration: Amendment. Under the statute (Sec. 2013, U. S. 1899) condemning the selling, exchanging or delivery, or an offer to sell, exchange or deliver, for any consideration, any falsely altered, forged or counterfeit instrument, it is not necessary, in charging the offense, to use the word consideration. Equivalent terms are sufficient. So that where the information charged that defendant did sell, exchange and deliver to a bank, “for the sum of $196, a falsely made, forged and counterfeit instrument,” it sufficiently charged the consideration, and no force or 'validity was added to the information by an amendment after the trial began by interlining the words “consideration of the” just before the word “sum.”
    2^ FORGERY: Utterance: Loan and Sale: Wrong Statute. Where defendant forged the names of three sureties to a promissory note, signed by himself and made payable to a bank, and presented it to the bank in pursuance to negotiations between him and its officers for a loan, and obtained a loan thereon, his conviction cannot be maintained under Sec. 2013, R. S. 1889, for his offense was not a sale, exchange or delivery of an altered, forged or counterfeit instrument, with the intention of having the same uttered or passed, as contemplated by that section, but his offense was that defined by section 2009, which provides that “every person who, with intent to injure or defraud, shall falsely make, alter, forge,” etc., or under section 2012, for forging or uttering the note knowing it to be forged. And his conviction, under said section 2013, of forgery in the fourth degree cannot stand.
    3. CONVICTION UNDER WRONG SECTION: Acquitted Under Right Section. Where the facts of defendant’s offense do not bring his case within the purview of a statute under which he was convicted, he is entitled to his discharge, notwithstanding he was acquitted under another statute clearly applicable to his offense and he is clearly guilty of the offense denounced by that statute.

      4. PLEA IN BAR: Preserved for Review. A plea in bar, in order to be considered on appeal, must be set out, not simply referred to, in the bill of exceptions.
    Appeal from Franldin Circuit Court. — Row. B. 8. Ryors, Judge.
    Reversed and remanded.

      Jesse E. Schaper for appellant.
    (1) The trial court committed error in permitting the State to amend the information in matter of substance on the trial. That a prosecuting attorney had the right, both at common law and under our Statute of Jeofails, to amend his information in matter of form or substance at any time, by leave of court, before the trial, is here conceded. But his right to amend after trial in matter of substance, su,ch as was done in the case at bar, against the objection of defendant, even with leave of court, was prejudicial error. E. S. 1899, sec. 2481; State v. Yinso, 171 Mo. 576 ;-State v._ Emerson, 188 Mo. 412. It will not do to say that defendant should have met the amendment by a motion to quash, and, if overruled, saved an exception, because the rule at common law is that a motion to quash will not be entertained when the cause is on trial. 1 Bishop on Criminal Procedure (1 Ed.), par. 447. (2) The trial court committed error in sustaining the State’s demurrer to defendant’s special plea in bar. Defendant’s plea in bar showed that the offense of which defendant was being prosecuted by the information of the prosecuting attorney was a necessary element in and constituted an essential part of the offense of which defendant had been indicted and acquitted by a jury, and that both offenses were in fact but one transaction. The plea in bar therefore presented an issue which should have been submitted to a jury, and as this was not done, the court committed error. State v. Smith, 43 Vt. 324; State v. Huffmann, 136 Mo. 58.

      Herbert S. 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.- State v. Webster, 152 Mo. 89; Kelley’s Crim. Law, sec. 774; R. S. 1899, sec. 2013. (2) No error was committed in permitting the State to introduce the alleged forged note in evidence. Even if it be conceded that there was a difference in the'manner of spelling the proper names, it cannot be said that there was a variance. While this court has gone far in holding that the probata must agree with the allegata, yet no case can be found which holds that the misspelling of a word or two is sufficient to constitute a variance. (3) Defendant is not in a position to raise the question of the ruling by the trial court on his plea in bar and the State’s demurrer thereto. Said plea and demurrer are not preserved in the bill of exceptions, and, therefore, the court’s action is not open for review.
   FOX, P. J.

This, cause is brought to this court by appeal on the part of the defendant from a judgment of the circuit court of Franklin county convicting him of the offense of forgery in the fourth degree, for selling, exchanging and delivering a falsely made, forged and counterfeit note for $200:

On the 8th day of January, 1907, the prosecuting attorney of Franklin county filed an amended information, in two counts. The first count charged the defendant with having in his possession a certain falsely made, altered, forged and counterfeit note for $200 on the Bank of Sullivan in Franklin county. The second count of the information alleged that “Ciarence Standifer at the said county of Franklin in the State of Missouri, on the 6th day of October, 1906, did then and there unlawfully and feloniously and with intent to injure and defraud, sell, exchange and deliver to the Bank of Sullivan, a banking corporation organized and existing under and by virtue of the laws of the State of Missouri, for the (consideration of the) sum of one hundred ninety-six dollars, a falsely made, forged and counterfeit instrument of writing purporting to he the act of Carroll McCallister, F. M. Bennett and M. S. Crow, which said falsely made, forged and counterfeit instrument is of the tenor following, that is to say:

“ ‘No. — $200.00. Sullivan, Mo., Sept. 26, 1906.
“ ‘Three months after date we, each as principal, promise to pay to the Bank of Sullivan or order in Sullivan, Mo., two hundred and No-100 dollars. For value received, negotiable and payable without defalcation or discount, with eight per cent interest per annum after maturity. The makers, sureties, indorsers, and guarantors of this.note severally waive presentment for payment, notice of non-payment, protest, notice of protest, and diligence in bringing suit against any party thereto, and consent that the time of payment may be extended without notice thereof.
“ ‘Clarence Standford,
Carroll McCallister,
F. M. Bennett,
M. S. Crow/
‘ ‘ Knowing the same to be forged, counterfeit, and falsely made, with intent then and there and thereby unlawfully and feloniously to have the said falsely made, forged, and counterfeit instrument uttered and passed, against the peace and dignity of the State.”

The information was' accompanied by the affidavit of one L. A. Fisher. "Upon the date of the filing of the amended information the defendant was put upon trial. At the introduction, of testimony defendant challenged the sufficiency of the amended information by an objection to the admission of evidence, upon the ground that neither the first nor the second count of said information stated facts sufficient to constitute any offense. The challenge to the second count of the information was based on the alleged failure of an allegation of consideration for the sale or delivery of the note. By leave of court and over the objections and exceptions of defendant and during the progress of the trial of the case the prosecuting attorney then amended the second count by inserting therein the three words ‘‘ consideration of the ’ ’ enclosed in parenthesis above, whereupon the court sustained the objection of defendant to the first count and overruled his objection to the second count, to which action of the court the defendant excepted.

The State’s evidence tended to show that the Bank of Sullivan is situated in the town of Sullivan, Franklin county, Missouri. That defendant, from his home in Morrellton, Franklin county, communicated by telephone with Leo A. Fisher, president of the Bank of Sullivan, at his residence in Sullivan, said county, after supper on September 26, 1906-, in which communication defendant applied for a loan .of two hundred dollars from said bank. Mr. Fisher told the defendant that if he would give good security the bank would let him have the money. Defendant replied that Carroll McCallister, F. M. Bennett and M. S. Crow would sign the note as security, and Mr. Fisher told defendant he could have the loan upon the security offered. On the following day, by direction of Fisher, the cashier of the bank, H. O. Hollow, prepared the form of the note read in evidence and mailed the same, together with a letter addressed to Clarence Standifer at Morrellton, Mo. On October 4, 1906, defendant called at the bank and asked the cashier to change the time of payment of the note from three months to twelve months, hut the cashier refused and, defendant then told him he would try to- get along with it that way. Afterwards, at about one o’clock in the afternoon of October 6, 1906, defendant came to the bank with his note filled out; Tracy Schaefer, the assistant cashier, the only person in the bank at the time, waited on defendant, who handed the note to Schaefer and at the time asked if Hollow was there. Schaefer received the note, and after deducting the interest, paid the balance of one hundred and ninety-six dollars to defendant. Mr. Fisher returned to the bank about an hour later, examined the note, discovered that the signatures of Bennett, McCallister and Crow were not genuine, took the note with him and left the bank in search of defendant, and found him traveling by rail from Sullivan to St. Clair, some miles east of Sullivan, where he was arrested within three hours after he left the bank. Defendant admitted that he had forged the names of Mc-Callister, Bennett and Crow. The evidence further shows that Carroll McCallister could not write his name and that the names of all four men on said note were in the handwriting of the defendant, and that he signed the names of said parties to the note without their knowledge and consent. Defendant turned over to the officers $192.60 of the money he received from the bank, and to Constable Shelton defendant stated that his object in getting the money from the Bank of Sullivan was to go into the saloon business in Dry Branch or Morrellton, and that he expected to pay off the loan when he made some money out of the saloon and before the note became due. Over the objection of defendant the State offered and read in evidence the note heretofore referred to.

Defendant’s evidence tended to show that he was twenty-three years of age, was in poor health and enjoyed a good reputation for honesty and integrity prior to this trouble. •

At the close of State’s evidence defendant asked an instruction in the nature of a demurrer to the evidence, which was by the court overruled, to which the defendant excepted.

The cause being submitted to the jury upon the evidence and instructions of the court they returned a verdict finding the defendant guilty as charged in the second count of the information and assessed his punishment at three years’ imprisonment in the penitentiary. Timely motions for new trial and in arrest of judgment were filed, and by the court overruled. Sentence and judgment were entered of record in conformity to the verdict, and from this judgment the defendant prosecutes his appeal, and the record is now before us for review.

OPINION.

The record in this cause discloses many complaints by the defendant of error as a basis for the reversal of this judgment. We will treat of the assignments of error by learned counsel for appellant in the order in which they are suggested in the brief.

I.

It is insisted that the trial court committed error in permitting the prosecuting attorney to amend the information in matter of substance on the trial. The record discloses that the trial proceeding, upon the introduction of testimony by the State the defendant objected to the introduction of any testimony on the ground that neither the first nor the second count of said information stated facts sufficient to constitute any offense. This objection being made, the prosecuting attorney, by leave of court, amended the second count of the information by inserting therein the three words, “consideration of the,” causing the information to read, “for the consideration of the sum of one hundred and ninety-six dollars,” instead of reading as it did prior to the amendment, “for the sum of one hundred and ninety-six dollars.” The error complained of is directed to this amendment.

This count of the information upon which the defendant was tried is predicated upon the provisions of section 2013, Eevised Statutes 1899. This section provides : ‘ ‘ Every person who shall sell, exchange or deliver, or offer to sell, exchange or deliver, for any consideration, any falsely altered, forged or counterfeited instrument of writing, the forgery of which is declared punishable, except as in the last section is excepted, knowing the same to be forged, counterfeited or falsely altered, with the intention to have the same uttered or passed, shall, upon conviction, be adjudged guilty of forgery in the fourth degree.”

It is insisted by appellant that it was essential to the validity of the information to amend it by the insertion of the words heretofore indicated, therefore it is argued the amendment is one of substance, and that such amendment being made after the commencement of the trial, was not authorized by section 2481, Eevised Statutes of 1899, which substantially provides that informations may be amended as to form and substance prior to the trial and may be amended as to form and variance after the commencement of the trial.

At the veiy inception of the consideration of the propositions involved in this case we find that the facts upon which this information is predicated do not constitute the offense charged and have no application to the offense defined by section 2013, Eevised Statutes of 1899. "VYe fully treat of that proposition in paragraph two of this opinion.

Eecurring to the question suggested by counsel for appellant as to the amendment of the information in the manner and at the time referred to, in our opinion, so far as concerns the form of the information and the terms embraced therein, it charged every element of the offense condemned by that section without the amendment as made by the prosecuting officer. In other words, we have reached the conclusion that the offense, so far as concerns the form of the information and the phraseology employed therein, was properly charged and that it was not essential to its validity to insert the words as heretofore suggested. The acts condemned by that section were the selling, exchanging or delivering or offer to sell, exchange or deliver, for any consideration, any falsely altered, forged or counterfeited instrument. It is only essential that the charge in the information shall embrace such terms in the information as will make it apparent upon the face, of such charge that the sale, exchange or delivery was for a consideration. It is by no means necessary in charging the offense defined by the statute embraced in the provisions of section 2013, to use the word consideration. If other terms are used which are equivalent, that is all that the law applicable to good pleading requires. If the charge in this information that the defendant did sell, exchange and deliver the instrument to the bank designated in the information for the sum of one hundred and ninety-six dollars does not show a sale and delivery for a consideration, then we confess our absolute inability to interpret the Etnglish language. If this information had charged for the sum of — -leaving it blank — it might be successfully urged that there was a failure to show any consideration for the sale and delivery; but when the language used is that the sale and delivery was made for the sum of one hundred and ninety-six dollars, in our opinion it expresses as clearly the consideration for such sale and delivery as to use the language “for the consideration of the sum of one hundred and ninety-six dollars.” The addition of the words “consideration of the” adds no force or vitality to the terms used, and they are absolutely unnecessary for the purpose of showing that there was a consideration. If A says, “I bought a horse from B for the sum of one hundred dollars, ” or if he says, “I sold a horse to B for the sum of one hundred dollars,” will it be seriously contended that this is not a full expression that the sale or purchase of such horse was for the consideration of one hundred dollars? We think not.

It has been repeatedly held by this court that in charging an offense it is not absolutely essential to use the exact words of the statute. If words of equivalent import are employed it is a substantial compliance with the requirements of the law in charging the offense condemned by the statute. [State v. Ware, 62 Mo. 597.]

In State v. Watson, 65 Mo. 115, in discussing a proposition as to whether or not a charge of forgery would fall within the provisions of a certain section of the statute, which statute used the words respecting such forgery, as “pass, utter and publish,” but instead of using the words of the statute the terms, “sell,” “exchange” and “deliver” were used, this court, speaking through Judge Henry, said: “It is generally, not, however, invariably, sufficient to describe the offense in the words of the statute; but it does not follow that other words may not be substituted. Selling, exchanging or delivering a bank bill or a piece of money is in common parlance passing the bill or money. The plain or ordinary and usual sense of the word ‘pass,’ as applied to coin or bank notes, is to deliver in exchange for something else, and is equally expressed by the words ‘sell,’ ‘exchange’ or ‘deliver.’ ”

So it may be said in the case at bar, that thq allegations in the information which charge a sale, exchange and delivery of the forged instrument for the sum of one hundred and ninety-six dollars, are as clearly expressive of the consideration of the sale, exchange and delivery as though it had been alleged that it was in consideration of such sum.

Our attention upon this proposition is directed to the case of State v. Hesseltine, 130 Mo. 468, and it is earnestly insisted by counsel for appellant that the announcement of the rule in that case is decisive of the proposition now under consideration. The learned judge writing the opinion in that case, which was one of forgery, in discussing the application of the charge to section 3634, Revised Statutes 1889, which is substantially .the same as section 2002, Revised Statutes 1899, said that, “if framed under section 3634, the count is bad because it does not allege that the sale was for a consideration, and then specify such consideration, as it should do.” It is sufficient to say of that statement of the law that, as an abstract rule of pleading, applicable to the offense defined by the section then under consideration, the announcement of the rule was clearly correct. The conclusion we have reached, as heretofore indicated, upon the proposition in the case at bar, by no means should he understood as holding that it was not essential to allege that the sale was for a consideration, and that such consideration should be specified; but we do mean to say that it is not essential to the validity of a charge, under the provisions of the section now being discussed, to use the term “consideration.” We simply hold, in harmony with the repeated rulings of this court,, that if the language used in making the allegation is equivalent to the words used in the statute, and when used in making the charge in an information it makes it manifest upon the face of the charge that the sale and delivery was for a consideration, the law respecting good pleading has been fully complied with.

The indictment in the Hesseltine case, to which the attention of the court was directed in the foregoing statement of the law applicable to pleading, failed to allege that there was any consideration for the sale, delivery or exchange of the forged instrument; therefore, it is clear that the conclusion reached by the court, as announced in the foregoing rule of pleading, was correct. We are unwilling to believe that the learned judge meant to hold that the precise term ‘ ‘ consideration” should be used in charging the offense under the statute, or that equivalent words would not be sufficient, but we are convinced that he simply announced a rule of pleading as applicable to' that section, which defined the offense to be the sale, exchange or delivery of a forged instrument for any consideration and that it was essential that a consideration should be alleged and specified, and by no means should the rule announced be interpreted that it was absolutely essential to use the term ‘£ consideration, ’ ’ and that the employment of equivalent words would not satisfy the law respecting proper pleading. Upon this proposition, the contention of appellant respecting the complaint to which our attention has been specially directed, the ruling must be adverse to the appellant.

II.

The fundamental error to which counsel for appellant directs our attention in this proceeding, is that upon the disclosures of the record the court erroneously held that a conviction of the defendant could be had and maintained upon a charge predicated upon the provisions of section 2013.

It will be observed that the defendant in this cause obtained the money from the Bank of Sullivan by presenting to said bank a promissory note for the sum of $200, payable to the Bank of Sullivan, the same bank from which the money was obtained, purporting to have been signed and executed by the parties as alleged in the information. The evidence, which is undisputed, shows that the presenting of this note to the Bank of Sullivan was in pursuance of negotiations between the defendant and Mr. Fisher, president of the Bank of Sullivan, for the loan of $200 from said bank. The presentation of this note, payable to the Bank of Sullivan, by the defendant was not a sale, exchange or delivery of an altered, forged or counterfeited instrument, as contemplated by the provisions of section 2013. It was simply the presentation and delivery of a contract in writing evidencing an indebtedness, purporting to be executed by the parties signed thereto, in which a promise to pay a certain amount of money was embraced. In other words, it was simply the presentment and delivery of a promissory note, purporting to be executed by the parties signing the same, to the Bank of Sullivan, for a loan of so much money. This note is fully set forth in the second count of the information upon which the defendant was convicted, and is reproduced in the statement of this cause, and it makes no difference whether such note was falsely made and forged by the defendant and presented and delivered to the bank for the loan of $200’, or whether it was falsely made and forged by anyone else, with the knowledge of the defendant, and was presented by him to the bank for the loan, such acts fail to fall within the provisions of section 2013; nor do they constitute the offense of forgery in the fourth degree, as defined by that section.

If the defendant falsely made, altered or forged the promissory note alleged in the second count of the information, then it is clearly manifest that the offense of which he is guilty is defined' by the provisions of section 2000,• which provides that ‘ ‘ every person who, with intent to injure or defraud, shall falsely make, alter, forge or counterfeit any instrument or writing, being or purporting to be the act of another, by -which any pecuniary demand or obligation shall be or purport to be transferred, created, increased, discharged, or diminished, ” or if he forged the note himself, or if someone else perpetrated the forgery and he had it in his possession, with full knowledge that it was forged, with the intent to injure or defraud, by uttering the same as true or false, or causing the same to be so uttered, in that case his offense- could appropriately be predicated upon the provisions of section 2012.

Emphasizing the correctness of the conclusion upon this proposition, as heretofore indicated, we direct attention to the case of State v. Webster, 152 Mo. 87. That case was decided by Judge Gantt at the October term, 18-99', of this court. An examination of it will clearly indicate a state of facts which point out clearly the class of offenses sought to be covered by the provisions of section 2013. The indictment in that case* was under the' provisions of section 3645', Revised Statutes 1889, the provisions of which are substantially the same as section 2013, upon which the charge in the case at bar was predicated. In that case the defendant Webster was indicted for unlawfully and feloniously selling and delivering to Evingston & Company, a firm composed of Messrs. M. G. Evingston, E. K. Morgan and A. P. Young, a certain falsely made, forged and counterfeited check purporting to have been made and drawn by one Lige Garrison upon the Camden County Bank, a banking corporation duly organized and existing under the general laws of Missouri, in favor of one Cahley Parrick, which said check was of the tenor following:

“Linn Creek, Mo., Sept. 16, 1895.
“Camden County Bank,
“Pay to Cahley Parrick or order $128 (one hundred and twenty-eight dollars).
Lige Garrison.”
“Knowing said check to be falsely made, forged and counterfeited with felonious intent, then and there to have the same passed, against the peace and dignity of the State.”

The defendant was tried and convicted upon that indictment and the judgment of conviction was affirmed. In that case we have a plain statement of a state of facts which clearly fall within the provisions' of section 2013, and it is that character and class of cases that is sought to be covered by the provisions of that section.

If in this case the facts disclosed had shown that the defendant had in his possession a promissory note for $200, purporting to have been executed by some other person to himself, or to some other individual, and such note had been altered or forged and he had knowledge of such alteration and forgery, and then he should have sold, exchanged or delivered that note to the bank for a consideration, with the intention to have the same uttered or passed, his offense would have clearly fallen within the provisions of section 2013; but that is not this case. We have here simply the presentation and delivery to the Bank of Sullivan of a promissory note, made payable to said bank, purporting to have been signed by the parties whose names are attached to it, for the purpose of securing a loan, and this state of facts by no means is within the purview of the provisions of section 2013, nor did the provisions of that section defining the offense therein embraced, have in contemplation that class or character of acts.

The facts as disclosed by the record upon the trial of this cause clearly indicate the guilt of the defendant of either forgery in the third degree under the provisions of section 200©, or forgery in the fourth degree under the provisions of section 2012. In fact, his guilt is practically admitted. It is therefore with great reluctance that we feel constrained to reverse thé judgment in this cause; however, we see no escape from it, unless we are ready to ignore all the rules of law applicable to the subject of the different phases of forgery provided for by the statute. The defendant in this cause undoubtedly must have been bom under a • ‘ lucky star; ’ ’ for, from intimations in the record, he seems to have been acquitted of all charges predicated upon the only sections upon which he could have been convicted, and convicted upon about the only section which did not in any way define the offense of which he was guilty. The record discloses that the defendant was acquitted of the offense as charged in the first count of the information, which was predicated upon the provisions of section 2012, Revised Statutes of 1899, and it may be that, from what is said in the brief of learned counsel for appellant, he has also been acquitted of the offense charged under the provisions of section 2009, Revised Statutes of 1899. However, the plea in bar, which purports to preserve the judgment of acquittal under the provisions of that section, is not before us for review, and therefore we shall not undertake to discuss it. An examination of the record discloses that the plea in bar is not incorporated in the bill of exceptions. It is set out in the record proper, but when it comes to present the bill of exceptions to the jndge for his signature the only reference to such plea contained in the bill of exceptions, which was signed by the judge, was that the defendant excepted to the action of the court in sustaining the demurrer to the plea -in bar. Then there is this note: “Said plea in bar is set forth on page 5.” The mere reference to this plea and that it is set forth on page five by no means is sufficient to make it a part of the bill of exceptions, nor is it embraced within the bill of exceptions in contemplation of the rules of practice applicable to matters which must .be incorporated in the bill of exceptions, therefore we decline to take any notice of this plea in bar. We will say, however, if as a matter of fact the defendant had been tried and acquitted upon a charge predicated upon the provisions of section 2009, such acquittal would necessarily be a bar to any other prosecution under the provisions of that section.

We have indicated our views upon the vital propositions disclosed by the record before us, which results in the conclusion that the judgment of conviction upon the charges predicated under the provisions of section 2013 is erroneous. The defendant cannot.be convicted under the provisions of that section.

The judgment of the trial court should be reversed, and for tlie purpose of giving the court an opportunity to make such orders touching a new charge as it may be authorized to make under the provisions of the statute-, this cause should be remanded. If the defendant has been tried and acquitted upon charges predicated upon all the provisions of the statute to which the facts of this case might be made applicable, then there is nothing left for the trial court to do except to- discharge him.

All concur.


author: BURGESS, J.

text:
    THE STATE v. EDWARD CALVERT, Appellant.
    Division Two,
    February 18, 1908.
    1. INFORMATION: Assault: Felonious. An information that charges that defendant, in and upon one John Weak, “unlawfully and feloniously did make an assault,” charges that the assault was felonious.
    ■2. -: -: Lawful Money: Uncertainty. A’contention that “seventeen dollars, lawful money of the United States, of the value of seventeen dollars,” is too uncertain and indefinite, is without merit.
    3. -; Robbery: Double Charge in One Count: Waiver. There are two ways under the statute (Sec. 1893, R. S. 1899) by which robbery in the first degree may be committed, one by feloniously taking the property of another from his person, or in his presence and against his will, by violence to his person, and the other by putting him in fear of some immediate injury to his person; and it is better pleading, when it is desired to charge that the robbery was committed in both ways, to state the different allegations in separate counts. But if both ways are charged together in one count conjunctively, by the use of the word “and" where the statute uses “or,” and no motion to quash or to elect is made, it is too late to raise the objection in the motion in arrest or on appeal.
    4. -:-:-: Instruction. Defendant cannot complain because the instructions required the jury'to find that the robbery was committed in both the ways charged in the information, that is, by force and violence to his person, and by putting him in fear. It was only necessary for the State to show that defendant committed the robbery in one of the two ways indicated in the statute; but if it assumed the unnecessary burden of requiring that it was committed in both ways, defendant cannot complain.
    Appeal from Jackson Criminal Court. — Hon. B. J. Casteel, Special Judge.
    Affirmed.

      W. F. Biggs for appellant.
    The information is fatally defective. It does not charge that the' assault was felonious; and what is meant by “seventeen dollars lawful money of the United States, of the value of seventeen dollars ” is too uncertain in an information. It will be noticed that the information is fatally defective in charging robbery by “putting in fear.” State v. Crowell, 149 Mo. 395. The information does not pretend to allege that the property (whatever it was) was taken “in his presence and against his will, by putting him in fear of some immediate injury to his person,” nor does it allege the assault was made feloniously. The court instructed the jury they could convict if they found that defendant “took and carried away any money or property from his person or in his presence and against his will by putting him in fear. ’ ’ These two kinds of roU bery ought not to be joined in the same count because the one is repugnant to the other.. State v. Hesseltine, 130 Mo. 474; State v. Smith, 119 Mo. 443; State v. Crowell, 149 Mo. 395'; State v. Rector, 126 Mo. 328; State v. Evans, 128 Mo. 406.
    - Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) Instruction 1, the only instruction complained of, is full and complete in every respect. State v. Spray, 174 Mo. 575; State v. Brown, 104 Mo. 373. (2) There was not only substantial evidence of defendant’s guilt, but the evidence was overwhelmingly against him. In such a case, this court'will not attempt to weigh the evidence, but will defer to the finding of the jury, as approved by the trial court. State v. Smith, 190 Mo. 706; State v. Payne, 194 Mo. 442; State v. Groves, 194 Mo. 452; State v. Williams, 186 Mo. 128; State v. Swisher, 186 Mo. 8; State v. Williams, 149 Mo. 496.
   BURGESS, J.

At the September term, 1906, of the criminal court of Jackson,county, the defendant, under an information filed by the prosecuting attorney of said county, was convicted of robbery in the first degree, and his punishment assessed at five years in the penitentiary. After ineffectual motions for new trial and in arrest, the defendant appealed.

The evidence on the part of the State tended to prove that John Weak, the prosecuting witness, was a dairyman, and lived near Kansas City, Missouri. About seven o’clock, on the evening of September 21, 1906, Weak went to a rooming house at No. 1425 Grand avenue, Kansas City, and rented a room for the night, the landlady in charge "being one Mary Snyder. His room not being ready for occupancy, "Weak went out to the back porch where were three, men drinking beer, the defendant being one of them. The defendant accosted Weak, and suggested that he purchase some beer for the crowd, whereupon Weak gave the defendant fifty cents for that purpose, and the latter left, soon afterwards returning with a bucket of beer. He poured out three glasses of beer, handing one each to Mary Snyder, Lee Planet and Joe Morris. He then went into the kitchen, and soon returned with two. more glasses of beer, one of which he gave Weak and drank the other himself. Weak drank his glass of beer, and immediately complained that it was bad and not the kind he was used to drinking. He then went to his room, and the defendant followed him. Before the defendant left the porch, however, he exhibited a half-pint whiskey bottle, stating that he had put some of the whiskey into Weak’s beer, and that he wanted to “put him out. ’ ’ He further said to Lee Planet that he wanted to get what Weak had on him. While Weak was sitting in his room the defendant came in, knocked him down, choked him, and took $19.80' out of his trousers’ pockets. Lee Planet and Mary Snyder both testified that they saw the defendant knock Weak down and get on top of him. Morris, who was on the back porch drinking, testified that he saw the defendant follow Weak and also heard defendant say, “He has got money.” Mary Snyder further testified that the defendant, after his assault upon Weak, came out on the porch and said, “I got half a dollar off this old man”; that he then pulled out a bottle in which was a little whiskey, and said, “I gave all of that to him but this little bit”; that she asked him why he did that, and he said, “I needed the money.”

After the defendant left him, Weak left the house and reported the assault and robbery to the police. About ten o’clock that night police officer Gleason met the defendant and his wife on Grand avenue, and asked the defendant if he had been to this rooming house on Grand avenue that night, and defendant assured him that he had not. The defendant was arrested next morning at his home in Armourdale and brought to the police headquarters. After being looked up, he sent the jailer for O. T. Wofford, lieutenant of police, to whom the defendant said that, if he would turn him loose, he would give the stuff back and take the first train out of the city.

The defendant testified that the Mary Snyder house was supposed to be a rooming house, but that' she rented rooms for immoral purposes. He stated that Weak gave him twenty cents for beer at the time and place in question, but denied having put anything in the beer he gave Weak; that after drinking’ the beer he (defendant) went into one of the bed rooms, and that Weak came into the room, assaulted him and drew a knife out of his pocket; that he knocked Weak down, got on top of him and tried to take the knife from'him; that Weak then went to his own room, and in a little while defendant discovered that he had gone. Defendant denied robbing the prosecuting witness, and also denied having met officer Gleason that night on Grand avenue or making the statement testified to by officer Wofford.

The prosecuting witness also testified that four days after the assault and robbery,' while worldng at the dairy, he found $15 in bills in the inside pocket of his coat, which had been hanging out in the wash house, but that he had not put the money there.

Two' police officers, testifying for the State, stated that the defendant’s general reputation for truth and morality was bad.

It is insisted by defendant that the information does not charge that the assault was felonious, nor state what is meant by seventeen dollars, lawful money of the United States, of the value of seventeen dollars, and that the information is, therefore, fatally defective.

As to the first proposition, the information alleges that the defendant, in and upon one John Weak, “unlawfully and feloniously did make an assault,” etc. Then follows the constituent facts necessary to be alleged in an information or indictment for robbery in the first degree.

As to the other contention, that “seventeen dollars lawful money of the United States, of the value of seventeen dollars,” is too uncertain and indefinite, there is no merit in it. By section 2531, Revised Statutes 1899, it is especially provided that “in every indictment or information in which it shall be -necessary to make any averment as to any money or any note, being or purporting to be made or issued by any bank incorporated by laAY, or made or issued by any law' of the United States, it shall be sufficient to describe such money or note simply as money, without specifying any particular coin or note; and such allegation shall be sustained by proof of any amount of coin, or of any such note, although the particular species of coin of which such amount was composed, or the particular nature of such note, shall not be proved. ’ ’ Besides, it was held in State v. Burnett, 81 Mo. 119, in a prosecution under this same statute (then sec. 1817, R. S. 3879), that a description of money in an indictment which describes it as $500' of the ‘ ‘ lawful money of the United States, ’ ’ was sufficient. *

The point is also made that the information is fatally defective in charging robbery by putting in fear. Section 1893, Revised Statutes 1899', under which the information is drawn, provides that: “Every person who shall be convicted of feloniously taking the property of another from his person, or in his presence, and against his will, by violence to his person, or by putting himi in fear of some immediate injury to his person, shall be adjudged guilty of robbery in the first degree.” While, under this statute, there are two ways by which robbery in the first degree may be committed, one by feloniously taking the property of another from his person, or in his presence and against his will, by violence to his person, and the other by putting him in fear of some immediate injury to his person (State v. Crowell, 149 Mo. 391), this information charges the offense in the conjunctive, that is, both by taking the money and property of the said John Weak from the person and against the will of the said John Weak, then and there, by force and violence to the person of the said John Weak, and by putting the said John Weak in fear of an immediate injury to his person, thus alleging the commission of the offense in both ways. There was, however, no objection taken to the information before trial, either by motion to quash, or to require the State to elect upon which charge it would proceed to trial.

In 1 Bishop’s New Crim. Proc., sec. 586, it is said:

‘ ‘ To repeat what was explained in another connection, if a statute makes criminal the doing of this, or that, mentioning several things disjunctively, there is but one offense, which may be committed in different ways; and in most instances all may be charged in a single count. But the conjunctive ‘and’ must ordinarily in the indictment take the place of ‘or’ in the statute, else it will be ill as being uncertain. And proof of the offense in any one of the ways will sustain the allegation. On the other hand, the indictment may equally well charg'e what comes within a single one or more classes, less than all, of the statute, and still it embraces the complete proportions of the forbidden wrong.” [State v. Harroun, 199 Mo. l. c. 528.)

The allegations in the information with respect to the manner in which the robbery was committed are not repugnant because they relate to the' same robbery, while alleging- that it was done in different ways. It would have been better pleading, however, if the different allegations as to the manner in which the offense was committed had been stated in different counts.

The objection to the information seems to have been raised for the first time in the motion in arrest, which was then too late. Nor is the objection lodged against it of a character such as can be raised for the first time in this court. By his failure to move against it in the trial court by motion to quash, or by demurrer, or by motion to compel the State to elect upon which of the charges it would proceed to trial before the trial began, the defendant waived the objection. [State v. Fox, 148 Mo. 517; State v. Wilson, 143 Mo. 334; State v. Nagel, 136 Mo. 45.]

Of the instructions given in behalf of the State only one, the first, is complained of. It is as follows:

‘ ‘ The court instructs the jury that if you find and believe from the evidence that at any time within three years next before the 24th day of September, 1906, the date of the filing of the information, at Jackson county, State of Missouri, the defendant, Edward Calvert, took and carried away any money or property described in the information, the property of John Weak, of any value, from his person or in his presence and against his will, by force and violence to his person, by putting him in fear of an immediate injury to his person, without any honest claim to such money or property on the part of defendant, and with the intent to deprive said John Weak of his ownership therein and convert the same to his own use, then you will find the defendant guilty of robbery in the first degree, and assess his punishment at imprisonment in the State penitentiary for any term not less than five years. ’ ’

This instruction is challenged upon the ground that it applies to a crime not charged in the information, that is, that defendant “toot and carried away money or property from the person of John Weak or in his presence and against Ms will by putting him in fear, ’ while the offense charged in the information is the taking, feloniously, of the money and property of John Weak from his person and against the will of the said John Weak, then and there, by force and violence to his person and by putting him in fear of an immediate injury to his person; the State thus assuming the burden of showing that the robbery was committed in both ways, when all that was necessary for it to show, to entitle it to a conviction, was that the defendant committed the robbery in one of the two ways indicated by the statute. The .defendant, certainly, has no right to complain of this instruction, because, if erroneous, the error was in his favor, and not prejudicial to him.

The evidence, taken all together, strongly tended to prove defendant’s guilt, and left no room for a reasonable doubt with respect thereto. If true, as the jury evidently believed it to be, it amply supported and justified the verdict.

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

All concur.


author: GANTT, J.

text:
    THE STATE v. RICHARD ESTES and BUCK JOHNSON, Appellants.
    Division Two,
    February 18, 1908.
    1. THEFT: Circumstantial Evidence: Sufficiency. The evidence in this case is reviewed and held sufficient to support the verdict finding defendants guilty of having stolen chickens in the night time.
    2. -: -: Conflict. It is for the jury to settle the conflict between the evidence of defendants and that of the prosecuting witness; and if they believe the latter, and disbelieve the former, all • conflict disappears..

      3. -: Falsehood: Usual Concomitant. It is a familiar experience that falsehood' is the usual concomitant of crime, whereas truth is the reliance of innocence.
    4. NEW TRIAL: Newly-Discovered Evidence. Where it is obvious that the newly-discovered evidence would he only cumulative, and would at most only have the effect of impeaching a State’s witness, whose testimony defendants had themselves contradicted, the court does not commit error in refusing to grant a new trial.
    Appeal from Boone Circuit Court, — IIon. E. W. Hinton, Special Judge.
    Affirmed.

      Gillespy 3 Conley for appellants.
    (1) Where evidence is circumstantial the facts and circumstances in evidence should be consistent with each other and with the guilt of defendants, and inconsistent with any reasonable theory of defendants ’ innocence. State v. Francis, 190 Mo. 671; State v. Gordon, 199 Mo. 561; State v. Crabtree, 170’ Mo. 642. Circumstantial evidence to be sufficient must be of such a character as to leave the inference of guilt the only reasonable inference to be deduced from the facts disclosed by the evidence. State v. Francis, 199 Mo. 671. Mere suspicion, however strong, will not supply the place of evidence where life or liberty is at stake. State v. Scott, 177 Mo. 665; State v. Morney, 196 Mo. 43; State v. Crabtree, 170 Mo. 642; State v. Ballard, 104 Mo. 634; State v. Jones, 106 Mo. 302; State v. Gordon, supra; State v. King, 174 Mo. 662. It is a fundamental principle of law that each independent fact must be proved' in the same satisfactory manner as if the whole issue rested upon the proof of that fact. State v. Crabtree, 170 Mo. 642. Proof of the corpus delicti involves two things: First, a criminal act; second, the defendant’s agency in the production of the act. State v. Knolle, 90' Mo. App. 238; State v. Dickson, 78 Mo. 447; State v. Jones, 106 Mo. 312; 3 Greenl. Ev., sec. 30; Whart. Crim. E.v., sec. 325; State v. Kingsland, 174 Mo. 662. (2) Where newly-discovered evidence1 is relevant and important, and it is shown that it was not discovered before the trial, the refusal of a new trial is error. State v. Morgan, 96 Mo. App-. 343; State v. Curtis, 77 Mo. 267; State v. Speritns, 191 Mo. 24. It makes no difference that such newly-discovered- testimony would also have the effect of impeaching the State’s witness. State v. Murray, 91 Mo. 103. Testimony which would contradict the testimony of a witness to a material fact, newly-discovered, is sufficient grounds-for a new trial. Standard Investment Co. v. Hoyt, 164 Mo. 1401; State v. Murray, 91 Mo. 95; State v. Bailey, 94 Mo. 315; Keenan v. People, 104 111. 385; Casey v. State, 20 Neb. 138. If the evidence would have a tendency to shape the verdict of the jury in a new trial, the motion should prevail. State v. Murray, 91 Mo. 104; State v. Bailey, 94 Mo. 316.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The trial court properly declined to grant defendants a new trial on the ground of newly-discovered evidence. In order to justify the trial court in granting a new trial on the ground of newly-discovered evidence, the evidence must not be cumulative; and it must not simply tend to impeach a witness for the State. State v. Butler, 67 Mo. 63 ; State v. Lucas, 147 Mo. 72; State v. Ray, 53 Mo. 345; Graham & Waterman on New Trials, secs. 488 and 496 ; Bishop on Criminal Procedure, sec. 1279. Again, the motion for a new trial is not accompanied by the affidavit of the defendants’ attorneys, Messrs. Gillespy & Conley, who represented him in the trial court and who represent him in this court, to the effect that they did not know of said newly-discovered evidence. In a recent and well-considered case, this court held that the affidavit of both the defendant and his attorney was necessary in order to entitle the defendant to a new trial, for this reason. State v. Hunt, 141 Mo. 637; State v. Howard, 118 Mo. 127; State v. Burns, 85 Mo. 4?; State v. Phillips, 117 Mo. 394. On writing on the subject of knowledge of the defendant’s counsel, Judge Thompson said, ‘ ‘ Knowledge of counsel of such matters is knowledge of the client.” 2 Thomp>son on Trials, sec. 2725'; Parker v. State, 55 Miss. 414; Russell v. Quinn, 114 Mass. 163; State v. King, 194 Mo. 84. (2) The evidence in the case at bar was clear and convincing. It cannot be argued that there was no proof of the corpus delicti, as defendant Estes admitted to the prosecuting witness that he knew who stole the chickens and when they were stolen. Hinshaw v. State, 147 Ind. 362; Walker v. State,* 49 Ala. 400'; P'eople v. Arnold, 43 Mich. 305; 4 Elliott on Evidence, sec. 2723; State v. Benner, 64 Me. 289 ,• State v. Dickson, 78 Mo. '448; State v. Ferguson, 162 Mo'. 678; State v. Grubb, 201 Mo. 608 ; Wills on Ciro. Ev., pp. 80 and 81.
   GANTT, J.

At the June term, 1906, of the circuit court of Boone county, the grand jury returned an indictment against the defendants, charging them with stealing fifty chickens of the value of twenty-five dollars, on the night of April 28th, 1906, the property of one Henry Baumgartner, from the messuage of the said Henry Baumgartner. At the October term, 1906, the defendants were tried and convicted and the punishment of each assessed at a fine of twenty-five dollars. After ineffectual motions for a new trial and in arrest of judgment, the defendants have appealed to this court.

The evidence on the part of the State tended to prove that Henry Baumgartner, the prosecuting witness, was a farmer and living three miles east of Columbia in Boone county, and the defendants Estes and Johnson lived with each other about two and a half miles east of Baumgartner’s. Within a half mile of where Estes and Johnson lived there was a country store, owned by Mr. Finley, in which the postoffice was kept, which was known as Harg. At that time Finley was buying poultry and shipping it to Columbia. About seven miles from the home of the defendants, the town of Millersburg in Callaway county was situated on the road from Columbia to Fulton. On Sunday the 29th of April, 1906, Baumgartner’s wife went to her hen house situated within a messuage, about the usual time in the afternoon, and found no eggs, although she had been in the habit of getting about,forty eggs every day. Early Monday morning Baumgartner and wife again went to the chicken house, where the chickens roosted, and found only thirty-five or forty chickens left and fifty or sixty of their chickens gone. The stolen chickens were Barred Plymouth Rocks, one hen lighter in color and ‘larger than the others, and had a dark streak around her neck. The chickens so missed were worth about twenty-five or thirty dollars. About two weeks after the disappearance of his chickens Baumgartner met the defendant, Richard Estes, on the street in Columbia, and defendant Estes asked Baumgartner if he had heard the story that was going around about defendant stealing the chickens. Baumgartner admitted that he had; thereupon Estes said he had not done anything of the kind and wanted the talk stopped. Later on that same day defendant Estes came to see Baumgartner again, and inquired when he missed the chickens and said that he, Estes, knew when they were taken; that they were taken on the 28th of April, and sold on the 5th of May, and then correctly described the stolen chickens. He said-further, “I know all about it, but I did not get your chickens. I told Buck Johnson on the way-to Millersbnrg, ‘As soon as Henry Baumgartner finds out that we sold chickens in Millersbnrg, he.will be on you.’ ” Estes said that the chickens that he sold were nice Barred Plymouth Rock hens, except the light hen with the streak around her neck. He further said that he was paying defendant Johnson $14 per month, and had agreed to pay him in chickens. On the same day Baumgartner met defendant Johnson on the street, and he also began a conversation in regard to the chickens, and inquired if Baumgartner had heard that Gillespy was telling it down at Millersbnrg that they stole Baumgartner’s chickens, and he told him he had. Defendant Johnson then told Baumgartner that Estes would be in and see him that evening, and not to do anything until Estes came. He further said that his mother tried to get him not to go down to work for Estes, fearing he would get into trouble, and he did not want his father and mother to know anything about this. In conclusion he said, “We will make it all right with you if we can; you will wait on us, will you?”

On Saturday, the 5th of May, 1906, these two defendants drove a wagon from their residence, some seven miles, to Millersbnrg, and stopped at the store of Waters & Coons in that village, reaching there about sun-up, and a clerk named Selby came out to see what they wanted, and the defendant Johnson asked if the firm would buy any chickens; when told that they would, defendant sold him between forty and fifty Barred Plymouth Rock chickens at eight cents per pound. Three of the chickens were darker than the rest and one of the hens had a streak around her neck. Defendant Johnson said they were going to Pulton to take these chickens to his mother, but as it was raining’, he did not want to go .in the mud. A check was written out in payment of the chickens and given to Johnson. After the clerk Selby had left the store, defendant Estes bought a nickel’s worth of tobacco from Mr. Coons, one of the firm, and cashed this check in payment for the same. Johnson stated that he would give this money to his mother, and then he and Estes drove hack in the direction of their home in Boone county. These chickens were sold by Waters & Coons and shipped away before they had heard of the larceny. Pulton is about twelve miles east of Millersburg.

The defendant Johnson had a conversation'with C. C. Gillespy, in which he said he did not want Gillespy to say anything more about this chicken business; whereupon Gillespy said it was public talk in Millers-burg; whereupon Johnson said, he bet a dollar with Estes that it would not make any trouble if they took these chickens to Millersburg and that Estes won the bet. This conversation was on the Saturday that the two defendants were arrested.

On the part of the defendants the evidence tended to show that they had purchased a mixed lot of chickens about the 2nd or 3rd of March, when they moved to the farm where they were living, some of which were Plymouth Rocks, from one Janies Finley, who had previously lived on the farm to which they moved. Matt Turner, an uncle of the defendant Estes, testified there were thirty-five chickens in the lot- purchased by Estes of Finley. William Mitchell also testified that he sold defendant Estes two dozen Buff Plymouth Rocks the spring that he moved onto the place, and William Johnson testified that he sold him a dozen Barred Plymouth Rock hens. This witness was a brother of the defendant Buck Johnson. The father of the defendant Estes testified that the mother and sister of the defendant Estes let him have five dozen Plymouth Rocks to take with them when they moved to the Turner place in the spring of 1906. Defendant Estes further introduced evidence tending to show that he was at the Harg post-office until eleven o’clock the Saturday night on which the chickens were stolen. Both defendants testified they were at Harg until eleven o ’clock that night, when they went home, and did not steal the chickens in question. A week after that they started to Fulton driving a wagon and taking a lot of chickens to sell. At Millersburg they sold fifty-two chickens to Waters & Coons for $21.58, and Estes bought a nickel’s worth of tobacco and cashed the check. They were going to Fulton to attend the stock sales, although they admitted that the stock sales would not begin until the Monday following. When they reached Millersburg they concluded to go'no further on account of the rain, and so sold the chickens to Waters & Coons and returned home. They admitted it began to rain on them one mile west of Millersburg, and that they had never before been to Fulton to attend stock sales.

Reese Estes, the brother of Richard, testified that he stayed all night the night of April 28th, 1906, with the defendants at their home; they were at the store at Harg until eleven o’clock, and then went to their place; he slept in an adjoining room to them', the door was open between the two rooms and they went to bed about the same time, he talked to them after he had laid down; he found them there the next morning about (8 o ’clock when he got up.

Defendant Richard Estes testified that when he went to take charge of the Turner farm in March, 1906, he took about 135 or 140 chickens that he had gotten from different people, some from Mr. Mitchell and some from Mr. Perkins, Johnson and Finley. He had sixty Barred Plymouth Rocks and thirty-five Plymouth Rocks and Leghorns from Finley. He got one dozen Wyandottes from Perkins, and he had hired Johnson to work with him on the farm; he had not paid him on the first of May and he told him to get as many chickens as he wanted; he paid him for his month’s work in chickens; he was to pay him $14 per month. Johnson said he wanted to go to Fulton, and when they got as far as Millersburg I said, “Sell the chickens there, I do not want to drive the mules any farther.” It was raining and his team was not shod and the roads were rough. Previous to this trip, he had sold some chickens to Martin and to Berry, could not remember selling to anybody else. After they sold this lot at Millersburg, he thought there were about one hundred left. They started that morning to Millersburg about seven o’clock, got there about eight and Mr. Selby was at the store; neither he nor defendant Johnson had any money except what they got for the chickens.

Defendant Johnson corroborated Estes as to the trip to Fulton and what occurred at Millersburg. As to the conversation with Baumgartner, he stated that he told him that he had heard some talk that they had stolen the chickens, and he did not think it was right, for his mother would think he was stealing chickens for a living. He spoke to him because he heard he .was telling this story and he wanted him, to stop> talking it. On cross-examination, he stated they did not sell any chickens to Finley at Harg. He stated that he had never been to one of the stock sales at Fulton. The reason they started to Fulton on Saturday to be there on Monday was that he thought by the time the sales commenced, he could go over the town, he wanted to see it. He was to pay Estes’s expenses for going with him. He denied the conversation with Baumgartner as to his requesting the latter to wait to see Estes before he took any steps.

Richard Estes, Sr., testified that Baumgartner told him the chickens were taken away in a two-horse wagon; that they saw the tracks near the house where the team was hitched.

In rebuttal the State offered C. W. Martin and L. W. Berry and M. Y. O’Rear, who was a clerk for Mr. Martin, who testified, that that firm bought of R. J. Estes in the latter part of the winter and spring of 1906 chickens as follows: “Feb. 17th, 21 chickens; Feby. 28th, 21 chickens; March 16th, 35 hens; April 21st, 31 hens.” The checks were made out in the name of R. J. Estes. Finley testified that he bought from Richard Estes during the month of March, April and the first part of May, thirteen chickens. Tom Winiger testified that he knew the defendants and on the night the chickens were stolen, he was at ITarg and went home with the defendant and Richard Estes, that is, to the point where he turned off, and then he went home by himself. On the next day he saw Richard Estes in his pasture in the morning; the defendant Estes was sitting on his horse and there were four persons present, Carl Frazier, Sisson, Geo. Winiger and the witness; the defendant gaped and I said: “You look sleepy,” and he said, “Yes, Buck and me went to Dick Johnson’s after we came from the store.” Dick Johnson lived some four miles from there southeast.

In surrebuttal the defendants offered Reese Estes as a witness, and he testified that his name was Reese James Estes, and that he had sold chickens to Martin and to Berry, and that his brother, the defendant’s, initials were R. B., and that he had sold chickens to Martin and to Berry and received the check payable to himself ; did not remember how many checks he took; would not say that his brother did not sell Mr. Martin or Mr. 0 ’Rear any chickens in March or April. He could not remember the amount of any check .he had gotten for chickens that he had sold to Martin- and to Berry. Richard Estes, Sr., testified that his wife raised a great many chickens and sold chickens and eggs every week, sent them to town sometimes by Reese Estes and sometimes the girls would bring eggs. The defendant Richard Estes recalled testified that he was not the man that delivered the chickens to Mr. O’Rear and Martin and received the check, did not think he ever took any chickens to Martin and 0 ’Rear. He stated that he had sold Martin some chickens, that is, he honght the chickens, and Reese, his brother, got the checks. As to the conversation with Winiger he stated he did not see Winiger at the time mentioned; denied that he gaped, and said he was not close to him, as he was fishing on the side of the creek; he had heard that Winiger was going to say that he yawned. This was substantially all the evidence in the case.

I. This prosecution is bottomed on the Act of March 18th, 1903, which makes it a felony to steal any domestic fowl or fowls in the night-time from the messuage of another or from the premises upon which the dwelling house of another is situate. [Laws 1903, p.' 161.] The instructions of the court are not challenged save and except the refusal of the court to. direct a verdict of aeguittal at the close of the evidence. The defendants rely upon three grounds for a reversal of the judgment. The first two grounds are in effect the same, to-wit, that there is no substantial evidence to support the verdict, and the third ground is that the court erred in refusing to grant a new trial on the ground of newly-discovered' evidence. The evidence upon which the defendants were convicted was circumstantial and the court instructed the jury that the State depended upon circumstantial evidence to. establish the crime and to identify the defendants as the ones who were guilty. “And in such case, you are instructed that all the facts and circumstances relied upon by the State as establishing the perpetration of the crime and the identity of the defendants as the ones who perpetrated it, must be consistent with each other and with no other rational conclusion than that a crime was in fact committed, and that the defendants are the persons who committed it. To warrant a conyiction on circumstantial evidence, each fact necessary to the conclusion sought to be estaR lished must be proved by competent evidence beyond a reasonable doubt, and all the facts necessary to such conclusion must be consistent with, the main fact sought to be proved; and the circumstances taken together must be of conclusive nature, leading on the whole to a satisfactory conclusion and producing a reasonable and moral certainty that the accused and no other person committed the offense charged. The mere union of a limited number of independent circumstances, each of an imperfect and inconclusive character, will not justify a conviction. They must be such as to generate and to justify full belief according to the standard rule of moral certainty. It is not sufficient that they coincide with and render probable the guilt' of the accused, but they must exclude every other reasonable hypothesis. No other conclusion but that of the guilt of the accused must fairly and reasonably grow out of the evidence, and the facts must be absolutely incompatible with innocence, and incapable of explanation upon any other reasonable hypothesis than that of guilt.” It is earnestly insisted by the defendants that,'adopting the rule as anounced by the court in its instruction on circumstantial evidence, the testimony was insufficient to show that the chickens which defendants sold to Selby for Waters & Coons at Millers-burg were the chickens which were stolen from Baumgartner on the night of the 28th of April, 1906, for the reason that Baumgartner and wife testified that there were fifty or sixty chickens stolen, but from their testimony it would appear that more than that number were stolen and Selby said he bought forty or fifty only. It is also insisted that the description of the chickens given by Baumgartner and Selby did not agree, as Baumgartner said they were all Barred Plymouth Rocks except three or four of a lighter color, whereas Selby said they were all Barred Plymouth Rocks except three or four of a darker color and one of a lighter color, and that Baumgartner said the large hen was of a light color with a mingled neck and a neck darker than the others, whereas Selby said he bought a large light hen with a light neck, and that the description of the chickens given by Selby was consistent with the description of the chickens owned by the defendant Estes. It was also urged that the admissions of the defendants made to Baumgartner are entirely consistent with their innocence, and taken altogether the evidence raises only a suspicion of the guilt of the defendants. On the other hand, the State maintains that there was substantial evidence to sustain the conviction of the defendants.

The larceny of the chickens on Saturday night, April 28, 1906, was fully established, not only by the testimony of Baumgartner and his wife, but by the statement of Estes to Baumgartner that he knew when the chickens were taken; that they were taken on the 28th of April, and were sold on the 5th of May; that he knew all about it, but he did not get the chickens, and he described the chickens fully to Baumgartner; he said they were nice Plymouth Rock chickens, except the light hen with a mingled neck, and he made to Baumgartner the very damaging statement that when he and his codefendant Johnson were on their way to sell the chickens in Millersburg, he told Johnson as soon as Henry Baumgartner finds out that we sold chickens in Millersburg, “he will be on us,” and the defendant Johnson supplements this statements with his evidence to the effect that they entered into, a bet that they would be accused of stealing the chickens if they took them to Millersburg and sold them, and that he lost the bet. Not only did Estes go to Baumgartner and indicate his suspicion or solicitude as to being charged with the theft, but defendant Johnson also went to Baumgartner and showed great eagerness in getting the report stopped and requested him not to do anything until he could hear from them, concluding his conversation on the subject by saying. “We will make it all right ■with you, if we can; you will wait on us, won’t you? ’’ It is strongly suggestive of a sense of guilt that these two men should make a bet that trouble would grow out of their taking the chickens to Millersburg. Up to that time they had neither of them been accused of stealing the chickens and neither of them had heard that suspicion pointed towards them as the thieves. If this was an honest transaction on their part and the chickens were in fact the property of Estes, which he had turned over to Johnson to pay him as his wages, it is passingly strange that they should make a bet that Baumgartner would prosecute them as a result of their selling at Millersburg. When it is considered that these defendants took these chickens, answering in all substantial respects in description with those which had been stolen from Baumgartner, to Millersburg, a distance of seven miles and in an opposite direction from where they had been doing their trading, to sell, and to merchants with whom they were barely acquainted, and that they arrived there about sun-up when there was a store in half a mile of where they lived, the proprietor of which dealt in poultry, their conduct indicated a desire and purpose to conceal the fact of their selling these chickens. Doubtless the jury regarded their story that they had started that morning to the stock sales in Fulton, when the defendant Estes had testified he had no money and his codefendant Johnson was to pay his expenses, and the chickens brought only $21.58, out of which the expenses of both and the team must be paid, as utterly incredible, The stock sales were not to begin until the Monday following, and it was wholly unreasonable that they would leave the farm where, according to their story, they had a large number of chickens and at least another team of mules, entirely unprovided for and go off to Fulton at daylight Saturday morning and spend two days and two nights in that city on expenses waiting for the stock sales, and especially at that season of the year when their farm required their presence and constant attention. But it was equally strange after the two men had planned to go to Fulton to attend the stock sales, and knowing as well before they started as they did after reaching Millersburg the distance to Fulton, and that the team was unshod and that it looked like rain before they started, to change their minds so suddenly, immediately upon selling the chickens, and receiving the money for them. Doubtless the jury discredited this story as a weak invention to explain their presence at Millersburg with the chickens that morning. There was no evidence that poultry was commanding a better price at Millersburg than at Harg, right at their door, or at Columbia, where they were known and had been accustomed to sell their chickens. This trip indicated a settled purpose to' avoid the inevitable suspicion which would have attached to them immediately if they had, so soon upon the heels of the theft of Baumgartner’s chickens, offered chickens in number and of the same variety as Baumgartner’s to Finley, or at the county seat, Columbia, whither in all probability the rumor of the theft had already reached. Much of the contention of the learned counsel for the defendant is based upon the disagreement between Baumgartner’s testimony and that of the defendants, but they overlook the fact that it was for the jury to weigh the evidence of the respective witnesses and if they believed Baumgartner and disbelieved defendants then all seeming conflict vanishes from the case. Defendant Estes and his father accounted for a large number of chickens which they claimed defendant had about that time by stating that defendant’s mother gave him five dozen chickens, but it is significant that neither his mother nor sister who of all others would have been able to corroborate his story testified in the case for him. But recurring to the sale at Millersburg, Estes and Johnson testified that a check to Johnson was given for the chickens, and yet immediately afterwards Estes had it in his possession and cashed it upon haying only a nickel’s worth of tobacco. The thought'instinctively arises, why pay Johnson in chickens, when only the amount they brought was to be credited on his wages. At no other time was resort had to such unbusinesslike dealing. The jury might have inferred that it was a piece of jugglery to put Johnson forward as the ostensible owner on the idea that he was not so well known in that section as Estes, as the money soon found its way to the pocket of the latter, and the deposit of the check was avoided. But the defendants did not tell Selby they were going tothestocksales but Johnson told him he had started to take the chickens to his mother in Pulton, and after the sale said he was going to send the money to her, when in fact his mother did not live in Pulton, and the probability is that this accounts for the stock-sales story, as the fact could be demonstrated that his statement that he was going to take them to his mother in Pulton could readily be shown to be false. The jury were not. bound to believe either of these stories and evidently did not, but treated them as fabrications and evidence of guilt, on the familiar experienc that falshood is the usual comcomitant of crime, whereas truth is the reliance of innocence. [State v. Grubb, 201 Mo. l. c. 608.] We cannot agree with counsel for defendants that the carpios delicti was not established. We think there was no doubt that Baumgartner’s chickens were stolen from his messauge on the night of April 28, 1906, and that on the 5th day of May, the defendants sold chickens of the same variety and answering’ their description very closely, to Waters & Coons at Millersburg. -We attach no importance to the failure to show the exact number stolen, for if defendants stole seventy-five or eighty, it did not follow that they would necessarily take the whole number to Millersburg, as they, might without suspicion or comment readily dispose of a small number either to Finley at Harg, or to Berry or Martin in Columbia. The flimsy pretext of the trip to Fulton either to see Johnson’s mother or to attend the stock sales and the equally unsatisfactory excuse for abandoning it, both strongly tend to establish that they took the chickens in the night or early morning to Millersburg to conceal their possession of them and as less likely to come to the knowledge of the owner, Mr. Baumgartner, living seven miles away and trading in an opposite direction at Columbia, because if they were honest men selling their own poultry they could and naturally would have disposed of them right at their own doors, for the same price and without the loss of time from their crops or the labor for their team. "When these pregnant circumstances are considered, with defendant Estes’s statement that he knew exactly when the chickens were stolen and what variety they were, and all about them, but he did not steal them, and the anxiety of both Estes and Johnson to stop> the rumor pointing to them, and Johnson’s offer to make it all right if he could if Baumgartner would wait on them, we think the testimony passed beyond the point of suspicion and made out a case of substantial evidence pointing almost conclusively to defendant’s guilt.

II. Defendants insist they ought to have a new trial on the ground of newly-discovered evidence. Tom Winiger, a witness for the State, testified that he and defendant Estes went home together on the night the chickens were stolen; they left Finley’s store at Harg after ten o’clock and parted about one and a quarter miles from Winiger’s house. Next morning the witness was in the pasture to defendant’s farm with a brother of witness, George Winiger, and Carl Frazier, Kent Sisson and Charles Arnold; the defendant rode down to them and witness noticed defendant yawn and said to him, “You look sleepy,” “What makes you look sleepy?” and defendant Estes replied, “Yes, me and Buck (his codefendant) went to Dick Johnson’s after we come from the store.” The defendant Estes was recalled and testified he was present in the pasture the next morning as Winiger had testified, with the parties named, but he did not yawn, and Winiger did not remark about it, and he did not tell Winiger he and Buck Johnson went to Dick Johnson’s after coming from Harg the night before. He testified he had heard Winiger was to be a witness against him and would testify that he (defendant) looked sleepy and gaped and called his attention to it, but did not know he would testify that defendant said he and Buck Johnson went to Dick Johnson’s that night. The affidavit of defendants filed in support of the motion was as follows:

“State of Missouri, County of Boone, ss.
“Richard Estes and Buck Johnson, defendants iu the above-entitled cause, make oath and say that all the statements and averments contained in the twelfth reason above for granting a new trial on account of newly-discovered evidence are true.
“Richard Estes,
Buck Johnson.
“Subscribed and sworn to before me this 22 day of October, 1906.
“Hugh M. Hall,
Clerk Circuit Court,
by Jas. E. Boggs, Dept.”

The twelfth ground in said motion is as follows:

‘ ‘ 12. Because since the trial of this cause defendants have discovered new evidence, which is material to their defence and is not cumulative merely, nor merely serves to assail or contradict or impeach the credibility of a witness and which said evidence is fully set forth in the affidavits hereto attached and herewith filed and herewith made a part of this motion. That said evidence is so material that it would probably produce a different result if the new trial were granted. That it was not owing to want of due diligence that said evidence did not come sooner. ’ ’

This court has on different occasions approved the rules laid down in Berry v. State, 10 Ga. 511, in respect to new trials on the ground of newly-discovered evidence, to-wit, “that the evidence has come to the knowledge of the applicant since the trial; second, that it was not owing to the want of due diligence that it did not come sooner; third, that it is so material that it would probably produce a different result- if the new trial were granted; fourth, that it is not cumulative; fifth, the affidavit of the witness himself should be produced or its absence accounted for; sixth, that the object of the testimony is not merely to impeach the character or credit of a witness.” [State v. McKenzie, 177 Mo. l. c. 716, and cases cited.]

Tested by this rule, we think the motion was properly overruled. It is obvious that the proposed evidence would only have the effect of impeaching the State’s witness Winiger, and would be merely cumulative of the testimony of defendant Estes on that point. Moreover, defendant on the stand testified he knew or heard before the trial that Winiger would be a witness and would testify about defendant looking sleepy and yawning the next morning after the larceny of the chickens. He corroborated Winiger as to the meeting in the pasture next morning and as to the presence of the other witnesses, all of whom lived in the couuty, and yet he had taken no steps to have any of them subpoenaed. Neither is it probable that if the two new witnesses had been produced it would have changed the result, as they could only have testified they did not hear the remark of defendant to which Winiger testified.

We think no error was committed in refusing the new trial on this ground.

The judgment is affirmed.

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


text:
    THE STATE v. ABRAHAM PLANT, Appellant.
    Division Two,
    February 18, 1908.
    1. LARCENY: Diamond Ring: Proof of Theft of Diamond Stud: Variance. Evidence tending to prove larceny. of a diamond shirt stud does not constitute proof of larceny of a diamond ring. So that where the information charged defendant with stealing a diamond ring, that charge is not sustained by evidence that he stole a diamond stud from the shirt of the prosecuting witness. Such a case is not one of variance between allegation and proof, but one of a failure of proof.
    2. -: -: -: Removing Diamond from Stud. The information charged that defendant in the city of St. Louis “one diamond ring of the value of three hundred dollars, all the money, goods, chattels and personal property of Thomas Kerr, then unlawfully did steal, take and carry away from the owner thereof.” The evidence showed that defendant was a bell-boy at a hotel in Shreveport, Louisiana, and that Kerr while stopping at that hotel lost from his shirt a diamond stud of the value of three hundred dollars; that immediately thereafter defendant was arrested in Shreveport, and held several days and released, there being no evidence against him that he took said diamond stud; that afterwards defendant was arrested in St. Louis and in his possession was a diamond ring, and the evidence tended to • prove that the diamond in the said ring was the same diamond that was lost by Kerr in Shreveport, and that was the State’s case. Defendant’s evidence tended to show that he had owned a diamond ring prior, to the theft in Shreveport, and experts testified that it is impossible to identify stones after they have been removed from their original settings. Held, that there was "a total failure of proof. A diamond stud being a distinct and separate thing from a diamond ring, proof of the theft of the stud did not sustain the charge of larceny of the diamond ring.

      3. FAILURE OF PROOF: Instructions. Where there is no proof of the charge alleged in the information, there is nothing upon which to predicate instructions.
    4. LARCENY: Recent Possession. Where the proof shows the theft of a diamond stud in Shreveport, Louisiana, on October 18th, and the possession by defendant of a diamond ring in St. Louis on or about December 18th, an instruction which tells the jury that if they find from the evidence that the property or any part thereof was found in the exclusive possession of defendant recently after the 18th of December, he is presumed to be guilty of the theft, is erroneous for the reason that it completely ignores the interval between the 18th of October and the 18th of December.
    Appeal from St. Louis City Circuit Court. — Eon. Hugo Muench, Judge.
    Reversed and remanded.

      Jomes G. Shane-r and E. N. Robinson for appellant.
    (1) There was a total failure of proof in this case. Defendant is charged in the information with stealing a diamond ring; he was convicted of the offense charged in the information; there is not one line of testimony that a ring’ was ever lost by the prosecuting witness. This is a total failure of proof. State v. Ballard, 104 Mo. 634; State v. Smith, 31 Mo. 120’; Berrien v. State, 83 Ga. 381; Gray v. State, 11 Tex. App. 411; State v. McDonald, 10‘ Mont. 21; Barclay v. State, 55 Ga. 179; Rangel v. State, 1 Tex. App. 461; Coffelt v. State, 27 Tex. App. 608; Gerard v. State, 10 Tex. App. 690; State v. M'cGraw, 74 Mo. 573; State v. Babb, 76 Mo. 501; Hughes, Criminal Law and Procedure, sec. 483;. 1 Bishop’s New Criminal Procedure, sec. 486. (2) Instruction 4 is erroneous,' inconsistent and improper; it assumes the truth of facts in dispute and improperly declares the law as to recent possession. State v. Castor, 93 Mo. 242; State v. Taylor, 111 Mo. 538; State v. Bruin, 34 Mo. 537; State v. Crank, 75 Mo. 406; State v. Sidney, 74 Mo. 390; State v. Babb, 76 Mo. 501.

      Herbert 8. Hadley, Attorney-General, N. T. Gentry, Assistant Attorney-General, and G. A. Newton for the State.
    (1) The evidence shows clearly, and the jury found, that the stone which was in the stud when stolen at Shreveport, Louisiana, was the same stone which was foimd in defendant’s ring- in St. Louis, Missouri. Both the date and the venue set out in the information in this case are fictitious, but this fiction is jiistified under the laws of this State (sec. 2362, R. S. 1899). Hemmaker v. State, 12 Mo. 453; State v. Mintz, 189 Mo. 290 ; State v. Butler, 67 Mo. 62; State v. Smith, 66 Mo. 62; Johnson v. State, 47 Miss. 671; People v. Mellon, 40 Cal. 648. It was the rule at common law, and has also been enacted in our statute (sec. 2362, R. S. 1899), that each transportation.of stolen property from one county to another is a fresh theft. State v. "Williams, 147 Mo. 19; Hemmaker v. State, 12 Mo. 453; State v. Jackson, 86 Mo. 18. It is a well-settled rule of law that where the information charges defendant with stealing any number of articles, proof as to the larceny of any one is sufficient to sustain a conviction. State v. Thompson, 137 Mo. 623'; R. S. 1899, sec. 2534; State v. Ballard, 104 Mo. 636; State v. Hutchinson, 11 Mo. 236; State v. Wommack, 70* Mo. 411; State v. Smith, 80 Mo. 520; State v. Sharp-, 71 Mo. 221; State v. Harl, 137 Mo. 256; State v. Pullen, 43 Mo. App. 623; State v. Crow, 107 Mo. 345; State v. Sharp, 106 Mo. 109. (2) An examination of the record in this case discloses the fact that defendant failed to bring the matter of variance to the attention of the trial court, either by - demurrer to the evidence at the time of the trial, in his motion for a new trial, or in his motion in arrest of judgment. He should not be permitted to urge it in the appellate court, and the appellate court should not consider it. State v. Ballard, 104 Mo. 636; State v. Sharp, 106 Mo. 109'.
   FOX, P. J.

This cause is brought to this court by appeal on the part of the defendant from a judgment of conviction of grand larceny in the circuit court of the city of St. Louis. The information upon which the judgment in this cause rests, omitting formal parts, is as follows:

“Richard M. Johnson, assistant circuit attorney, in and for the city of St. Louis, aforesaid, within and for the body of the city of St. Louis, on behalf of the State of Missouri, upon his official oath, information makes as follows:
“That Abraham Plant, on the 18th day of December, in the year of our Lord one thousand nine hundred and six, at the city of St. Louis aforesaid, one diamond ring of the value of three hundred dollars, all the money, goods, chattels and personal property of Thomas Kerr, then and there unlawfully and feloniously did steal, take and carry away from the owner thereof, with the intent then and there to deprive the owner of the use thereof, and to convert the same to his own use; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.’’

• Upon- the trial of this cause the evidence on the part of the State tended to prove that on or about the 18th day of October, 1906, in the city of Shreveport, State of Louisiana, one Thomas Kerr, while stopping at the Caddo Hotel, in said city and State, lost one diamond stud of about the value of three hundred dollars. The evidence further tended to prove that said Abraham Plant was at said time a bell-boy employed in said hotel; that while acting in said capacity and while said Thomas Kerr was stopping at said hotel, the said diamond stnd was missing, and that immediately thereafter said defendant was arrested and searched by the police of said city and held in custody for several days and finally released, there being no evidence against him that he took said diamond stnd; that afterwards, to-wit, on or about the 18th day of December, 1906, said defendant, Abraham Plant, came to the city of St. Louis and State of Missouri, and that on the said 18th day of December he was arrested by the police of said city and in his possession was found a diamond ring; that after the arrest and incarceration, and at the time of said trial, evidence was introduced tending to prove that the diamond in said ring was the same diamond lost by the prosecuting witness on said 18th day of October in the - city of Shreveport, Louisiana. This is substantially the evidence produced on the part of the State.

The defendant introduced evidence in' the form of depositions of some four or five people who had known him in the city of Shreveport, and who testified that they had seen in his possession a diamond ring similar to the one in question, and had seen this in his possession some time previous to the time of his arrest for this alleged offense in Shreveport. Appellant also testified in his own behalf, stating that he had come into possession of this diamond ring some six or eight months previous to his first arrest by getting it from a jockey in the city of Dallas, in the. State' of Texas; that it had been in- his possession and the possession of his wife ever since he secured it in Texas. Defendant also introduced three witnesses, namely, William Kranke, Julius Veager and M. Levy, who qualified as experts with reference to the value ■ of diamonds, and also as to whether it is possible to identify diamonds after they have been removed from their original settings, and who testified that it is impossible to identify stones after they have been removed from their original settings.

At the close of the evidence the court instructed the ¡jury. We do not deem it essential to here reproduce the instructions given, but will give them such attention as we think necessary, in the course of the opinion. The cause being submitted to the ¡jury they returned a verdict finding the defendant guilty of grand larceny as charged in the information and assessed his punishment at imprisonment in the penitentiary for two years. Timely motions for new trial and in arrest of judgment were filed and by the court overruled. Judgment and sentence were entered in conformity to the verdict and from this judgment defendant prosecutes his appeal, and the record is now before us for consideration.

OPINION.

The record before us presents but two propositions, that is to say,

First. Was the evidence as developed at the trial upon "the charge preferred against the defendant sufficient to support the judgment of conviction, or in other words was.there an absolute failure of proof as to the charge contained in the information in this cause ?

Second. Did the instructions as given by the court properly declare the law as applicable to this case ?

I.

The first proposition may be embraced within a very narrow compass. The defendant in the information upon which this judgment of conviction is predicated is charged with unlawfully and feloniously stealing one “diamond ring” of the value of three hundred dollars of the property of Thomas Kerr. The proof introduced, as testified to by the prosecuting witness, was that the property which he complained was stolen from him was a “diamond stud,” as he puts it, which he left in his shirt. This simply confronts us with the proposition as to whether or not evidence tending to prove larceny of a diamond shirt stud is sufficient proof, or in other words, does it constitute any proof of the larceny of a diamond ring as charged in the information. In our opinion the statement of the proposition furnishes its own answer.

The property charged to have been stolen in the, information and the property which the proof tends to show was stolen, a diamond shirt stud, are as clearly separate and distinct articles of property as two different species of animals. If we should inquire of the proprietor or clerk in a jewelry establishment to show us a diamond ring, by no means would they- exhibit to us a diamond shirt stud, and the reverse is equally true: if we should ask for a diamond shirt stud, we would regard them as not understanding their business if they should exhibit to us a diamond ring.

Section 22, article 2, of the Bill of Rights, embraced in the Constitution of this State, expressly provides that “in criminal prosecutions the accused shall have the right ... to demand the nature and cause of the accusation. ’ ’ If' this provision of the organic -law of this State means anything, or is longer to be regarded as having any force and vitality, then we see no escape from the conclusion that when the State in this prosecution charges the defendant with stealing a certain article of property and then undertakes to prove the stealing of a separate, distinct and different article of property, it absolutely fails to comply with the provisions of the Constitution as herein indicated.

That a diamond ring and a diamond shirt stud are clearly distinct and different articles of property, in onr opinion is too plain for discussion, and it is beyond the ingenuity of any expert in criminal pleading to describe either one of those articles so as to embrace the other. The name and description of one embraced in an information or indictment necessarily excludes the other.

It does not satisfactorily answer this proposition to say that the diamond set in the ring or shirt stud constitutes the principal value. That may be true, but the information charges the stealing of a diamond ring of a certain value, and that embraced the value of both the ring and the diamond; and equally true as to the diamond stud, the value as fixed by the prosecuting witness embraced both the value of the diamond and the stud in which the stone is placed. The question of variance has no application to this cause. There is an absolute failure of proof of the stealing of the article charged to have been stolen in the information. The well-recognized rule in criminal pleading is that the property charged to have been stolen must be alleged in the indictment or information, and a variance has application to where the proof does not strictly conform to the description of the article as alleged in the pleading, but the law by no means recognizes it as simply a variance where the charge designated the article of property stolen and the proof shows an entirely separate and distinct article of property. In the latter case it amounts to an absolute failure of proof.

H

Having reached the conclusion as heretofore indicated upon the first proposition that there was a failure of proof, there is no necessity for discussing the instructions given by the court. There being no proof of the charge alleged in the information, hence there was nothing upon which to predicate instructions. However, it may be that the State will prosecute the defendant upon a new charge for stealing a diamond stud or stealing a diamond which was set in a shirt stud; therefore it may be well to indicate our views upon instruction numbered 4 as given by the court applicable to the subject of recent possession. In our opinion that instruction was erroneous. It was as follows:

“If you find from the evidence that the property mentioned in the information, to-wit, one diamond ring or a diamond now set in a ring, was the property of Thomas Kerr, and that it was stolen in the city of St. Louis, Missouri, as heretofore defined, or on or about the 18th day of December, 1906, and that recently thereafter the same or any part thereof was found in the exclusive possession of the defendant, then the defendant is presumed to be guilty of the theft, and the law will further presume that the thief resorted to and made use of all the means necessary to gain access to and possession of such stolen property, and' the burden is on him to rebut or overcome such presumption to your satisfaction, but not beyond a reasonable doubt. The presumption of guilt arising from the mere naked fact of possession of stolen goods may be rebutted by proof showing that such possession was obtained or came about in a manner consistent with the innocence of the defendant, by the evidence in the case, or the circumstances attending such possession, or by the combined weight of one or more of the kinds of evidence just mentioned.”

It will be observed that the diamond stud which the prosecuting witness complained of losing was taken on the 18th day of October, 1906, in the State of Louisiana, and this instruction directs the jury that if they find that recently after the 18th of December the property or any part thereof was found in the exclusive possession of the defendant, then the defendant is presTimed to be guilty of tbe tbeft. That instruction is erroneous for tbe reason that it completely ignores the interval between the 18-th day of October, the date the property is said to have been stolen, and the 18th day of December, and excludes such interval of time from the consideration of the jury in passing upon the question of recent possession.

We have indicated our views upon the propositions disclosed by the record in this cause, which results in the conclusion that the judgment of the trial court, should be reversed. It is therefore ordered that the judgment be reversed and the cause remanded with a view that such orders may be made touching a new charge as the court may deem proper in accordance with the provisions of the statute.

All concur.