author: BROWN, P. J.

text:
    THE STATE ex rel. M. LUTHER SPRIGGS v. E. F. ROBINSON et al., Comprising State Board of Health.
    Division Two,
    December 9, 1913.
    1. PHYSICIAN: License to Practice: Valuable Right. The license of a physician to practice medicine or surgery is a valuable privilege — perhaps a property right, when once duly issued according to law.
    2. -: Revocation of License: Penal Statute. A statute which authorizes the State Board of Health to revoke the license of a physician to practice medicine, is highly penal, and no one can be held to have violated its provisions unless his acts come within its letter and spirit.
    3. -: -: Advertisement. The license of a physician to practice medicine and surgery cannot be revoked fo.r an advertisement in a newspaper announcing his “practice limited to diseases of women and surgery,” and mentioning that be has an “office and private hospital.”
    4. -: -: Hearsay Testimony: Reputation. Nor can it be revoked upon the testimony of another physician that several physicians had told him accused bore the reputation of a criminal abortionist. Nor should such testimony be considered or admitted by the State Board of Health in determining whether his license is to be revoked, since it is mere hearsay.
    5. -: -: Willingness to Commit Criminal Abortion: Expressed in Letters: Living Foetus. The fact that the State Board of Health, after a hearing, revoked relator’s license to practice medicine and surgery, for having offered, or been willing, to commit criminal abortion, is taken, in this suit to annul the action of said board, to mean that the symptons and conditions narrated in letters written to him by a post office inspector who impersonated and used the name of a fictitious woman, and his replies thereto, unmistakably pointed to a living foetus, which it would have been a crime to remove or destroy.
    6. -: -: Specified Acts: Ejusdem Generis. Where a law specifically designates several matters or things which shall be governed by its provisions, and then by general language undertakes to include other acts and things not specifically designated, it must be construed to apply only to things and acts of the same general nature as those specified.
    7. -: -: -: Desire or Willingness to Commit Abortion. A statute in reference to physicians declaring that the State Board of Health may revoke the license of “persons guilty of unprofessional or dishonorable conduct,” and that “habitual drunkenness, drug habit or excessive use of narcotics, or producing criminal abortion,, or soliciting patronage by agents, shall be deemed unprofessional and dishonorable conduct within the meaning of this action, but these specifications are not intended to exclude all other acts for which licenses may be revoked,” designates only acts, and does not penalize mere desires or willingness to do any of those acts, nor does the general language of the last clause penalize a mere offer to commit criminal abortion. The statute does not authorize the board to revoke the license of a physician who at most did nothing worse than express in letters a willingness to commit criminal abortion upon a fictitious young woman, and designating his “professional fee.”
    8. -: Unprofessional Conduct: Legislative Power of Board. The law does not give the State Board of Health the power to determine what shall constitute dishonorable and unprofessional conduct; nor is there perceptible any good reason why a statute should not designate the numerous acts and things which would constitute such conduct — for instance, why the statute should not expressly designate an offer to commit a criminal abortion, if it was the legislative intention that such offer should be considered as unprofessional and dishonorable conduct.
    Appeal from St. Louis City Circuit Court. — Hon. G. G. Hitchcock, Judge.
    Reversed.

      W. T. Hardin, Howard Gray and McReynolds & Halliburton for relator.
    (1) The court erred in holding that the evidence tended to prove that the relator was willing to commit a criminal abortion on the person of Susie Davis for one hundred dollars or any other sum. There is absolutely no evidence to show what medical conclusions might be drawn from the letters to the physician. In all of the cases of this character which have been passed on by the courts, the rule has been laid down that the complainants must allege and prove that the offense which is the basis of the complaint, is one which is in violation of the statute. Board v. Eisen, 123 Pac. 52; McComer v. Board of Health, 65 Atl. 263, 8 L. R. A. (N. S.) 58; State ex rel. v. Kellogg, 36 Pac. (Mont.) 957. (2) The rule of common law was that a man could not be convicted of an offense which he had been tempted or lured to commit. That rule has been adopted in this State with this modification, that where the conspirator inducing the commission of the crime was a party to that commission, there could be no conviction. That rule is firmly established in the jurisprudence of this State and applies fairly to the facts in this case because all of the poison in the correspondence is to be found in the letters written by the post office inspector. Without those letters the letters of the relator mean nothing. Letters of the inspector show persistent and determined effort on his part to induce the violation of the statute for which he was seeking to punish the relator. State v. Hays, 105 Mo. 76; State v. Waghalter, 177 Mo. 676; Wilcox v. People, 67 Pac. 343; Connor v. People, 33 Pac. 159; Speiden v. State, 3 Tex. Ct. App. 156, 30 Am. Rep. 126; United States v. Matthews, 35 Fed. 890; United States v. Adams, 59 Fed. 674; State v. Jansen, 22 Kan. 498. The Federal courts, apparently in a desire to assist their postoffice inspectors, have announced a different doctrine with reference to decoy letters, assigning as a reason that the act of the inspector is prompted not so much by a desire to induce the crime as to ascertain whether the defendant is engaged in an unlawful business. Grim v. United States, 156 U. S. 610. In other words, the Federal statute was leveled at a certain class of business which was being prosecuted largely through the mail and the purpose of the law was to give the Federal authorities control of the use of the mails. With this in view consider for a moment the situation in this case. The record here shows a trap, instigated by competitors, to catch a skillful and capable surgeon,' a man whose reputation was up to that time untarnished, and who undoubtedly was not engaged in prosecuting any business through the mails and certainly not that of which he is here accused. More than that, the record shows that the very crime which it was sought to induce him to commit was not, in the very nature of things, susceptible of commission. There was no such person as Susie Davis. She is a mere figment in the inspector’s imagination. Her condition was bom of his information of what it would take to create a condition necessary for a criminal operation. Where the crime cannot be committed there is no offense under the law. Tarver v. State, 43 Ala. 354; State v. Clarissa, 11 Ala. 57; Sipple v. State, 46 N. J. L, 197; Commonwealth v. Parker, 9 Mete. 263; State v. Cooper, 2 Yah. 53; Smith v. State, 33 Me. 48. (3) The relator contends that Sec. 8317, R. S. 1909', has expressly defined the words “unprofessional and dishonorable conduct” and having defined them it does not lie within the power or authority of the State Board of Health to extend or enlarge that definition. The latter part of the clause does not undertake to broaden the definition of “unprofessional or dishonorable conduct.” Those two terms are expressly defined by the Legislature. What the statute does, is simply, to say that there may be other acts for which a license may be revoked. Such a statute is highly penal and should be strictly construed. The right to practice is a valuable property right and cannot be taken away from a citizen without due process of law. Hewitt v. Examiners, 84 Pac. 39; State ex rel. v. McElhinney, 241 Mo. 592; Cummings v. Missouri, 4 Wall, 277; Comm’rs v. Jones, 10 Bush. (Ky.) 731; In re Dorsey, 7 Port. (Ala.) .293; Baker v. People, 3 Con. (3ST. Y.) 686. (4) The relator contends that there can be no general grant of authority to revoke licenses for unprofessional and dishonorable conduct without defining these terms or for “other acts which are not included in the specifications of the statute” because such an authority is too vague, indefinite, and uncertain to give those effected any information- as to what was lawful or unlawful under the terms of the act. Matthews v. Murphy, 54 L. R. A. 415; Ex parte McNulty, 77 Cal. 164; Hewitt v. Examiners, 84 Pac. 39; Kennedy v. State Board, 108. N. W. 730; Czarra v. Board, 25 App. D. C. 443; Ex parte Jackson, 45 Ark. 164; State ex rel. v. Purl, 228 Mo. 1. (5) The definition appearing in the statute could only be extended by the well-known rule of ejusdem generis. Black on Interpretation of Laws (Hornbook Series), sec. 63, p. 141; Endlich on Interpretation of Statutes, secs. 405 to 411, p. 567; State ex rel. v. Purl, 228 Mo. 1; State ex rel. v. Berryman, 142 Mo. App. 373; St. Louis v. Kaime, 180 Mo. 309; Rusehenberg v. Railroad, 161 Mo. 70; State v. Butler, 178 Mo. 272; 1 Dillon on Mun. Corps. (4 Ed.), secs. 392, 393.

      John 1\ Barher, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for respondents
    (1) That relator was induced by a United States post office inspector or other persons to agree to perform a criminal abortion will not excuse him in a proceeding to revoke his license for unprofessional or dishonorable conduct. State v. Hayes, 105 Mo. 76; State v. Waghalter, 177 Mo. 676; Spurgeon v. Rhodes, 167 Ind. 9; 1 Bishop’s New Crim. Law, .secs. 258-262; State v. Oliphant, 128 Mo. App. 264. (2) Sec. 8317, R. S. 1909, includes acts other than those specifically named in the statute as unprofessional and dishonorable conduct. See authorities cited under point 3; Meffert v. Packer, 1 L. R. A. (N. S.) (Kan.) 814, 195 U. S. 625; State ex rel. v. Goodier, 195 Mo. 556; Spurgeon v. Rhodes, 167 Ind. 11; People v. Apfelbaum, 251 111. 22; Wolf v. State Bd. Med. Ex., 100 Minn. 360; State v. Board, 32 Minn. 324; State v. Board, 34 Minn. 387; Board of Health v. McCoy, 125 111. 289; Board of Health v. Roy, 48 Atl. 802; Morse v. Board Med. Ex., 122 S. W. (Tex.) 446; Berry v. State, 135 S. W. (Tex.) 632; In re Smith, 10 Wend. 449; State ex rel. v. Hathaway, 103 Mo. 29. (3) Section 8317, is not invalid or unconstitutional in granting power to the State Board of Health to revoke a license to practice medicine for unprofessional or dishonorable conduct. People v. Apfelbaum, 251 111. 22; Berry v. State, 135 S. W. 1; Oil Co. v. State, 48 Tex. Civ. App. 179'; Morse v. Board of Med. Ex., 122 S. W. (Tex.) 448. (4) A license is not a contract. State v. Gazlay, 5 Ohio, 22; Cohen v. Wright, 22 Cal. 317; Ex parte Yale,' 24 Cal. 242; Lanquille v. State, 4 Tex. App. 320; Simmons v. State, 12 Mo. 279 ; State ex rel. v. McIntosh, 205 Mo. 636. (5) Section 8317 is not void for uncertainty and unconstitutional, because it authorizes the State Board of Health to revoke a license to practice medicine for unprofessional or dishonorable conduct, and leaving it to the board to determine what shall constitute such conduct, separate and apart from the specific acts mentioned in the statute. People v. Apfelbaum, 251 111. 22; Berry v. State, 135 S. W. 631; Morse v. Bd. Med. Ex., 122 S. W. 448; Spurgeon v. Rhodes, 167 Ind. 11; Wolf v. Bd. Med. Ex., 109 Minn. 360; Oil Co. v. State, 48' Tex. Civ. App. 179. (6) The Board of Health may revoke a license for the same cause that it might refuse a license'. The right to practice medicine is a privilege granted by the sovereign. It is not a vested right free from regulation. State ex rel. v. Burroughs, 41 L. R. A. (Ind.) 217; Reetz v. Michigan, 188 U. S. 505 ; Hawker v. New York, 170 H. S. 189; Dent v. West Virginia, 129 H. S. 114; Meffért v..Packer, 1 L. R. A. (N. S.) 815, 195 U. S'. 625; Bradwell v. Illinois, 16 Wall. 130; In re Lockwood, 154 H. S. 116; In re Smith, 10 Wend. 449; People v. Huida, 52 Hun, 65; Traer v. Bd. Med. Ex., 106 Iowa, 559; State ex rel. v. Goodier, 195 Mo. 558; State ex rel. v. McIntosh, 205 Mo. 637; See. 8317, R. S. 1909. (7) Statutes enumerating grounds for the revocation of physicians’ licenses are not ex post facto laws; and therefore such licenses may be revoked for acts that were not grounds for revocation at the time they were committed, but were afterwards made so by statute. Meffert v. Bd. Med. Ex., 1 L. R. A. (N. S.) 818, 195 U. S. 625; Board of Health v. Roy, 22 R. I. 538; State v. Schaffer, 129 Wis. 465'. (8) An agreement to commit an abortion is, in common judgment, unprofessional and dishonorable conduct, and, therefore, cause for the revocation of relator’s license to practice medicine. Spurgeon v. Rhodes, 167 Indi 8. (9) The Board of Health may revoke a license for the same cause that it'may refuse a license. Sec. 8317, R. S. 1909; State ex rel. v. Goodier, 195 Mo. 560; Meffert v. Bd. Med. Ex., 1 L. R. A. (N. S.) 816, 195 U. S. 625; People v. Apfelbaum, 251 111. 25. (10) The findings of a medical board in a proceeding to revoke a physician’s license are conclusive upon the courts. 30 Cyc. 1557; Meffert v. Bd. Med. Ex., 1 L. R. A. (N. S.) 816, 195 U. S. 625; Munk v. Frink, 116 N. W. (Neb.) 528. (11) The practice in revocation proceedings before a medical board being more flexible than that allowable in the courts, evidence which tends to prove or disprove the point in issue may be introduced, although not the best evidence which might be had. 30 Cyc. 1557; Traer v. Bd. Med. Ex., 106 Iowa, 559; State ex rel. v. Goodier, 195 Mo. 559; State ex rel. v. Chittenden, 112 Wis. 569. (12) The rule of ejusdem generis cannot be invoked when the plain intent of the Legislature is to the-contrary, or would defeat the evident purpose of the law. State v. Smith, 233 Mo. 257; 36 Cyc. 1120-1121, notes 42 and 43; Henderson v. Railroad, 81 Mo. 607; 2 Lewis’ Sutherland on Stat. Const. (2 Ed.), secs. 363, 364 and 437; Grimes v. Reynolds, 184 Mo. 698.
   BROWN, P. J.

Appeal from the judgment of the circuit court of St. Louis City sustaining the action of the State Board of Health in suspending the appellant from the practice of medicine and surgery in this State for a period of one year.

The charge upon which appellant was suspended is that he was guilty .of “unprofessional and dishonorable conduct, ’ ’ in that he offered, or was willing, to commit a criminal abortion.

Prior to October 19, 1912, appellant was engaged in the practice of medicine and surgery at Joplin, Missouri, and the evidence upon which he was suspended from practice is mostly documentary, and is as follows:

First: The following advertisement inserted by appellant in a newspaper at Joplin:

DR. M. LUTHER SPRIGGS.
Practice limited to diseases of women and surgery. Office and private hospital, 417 S. Cox avenue. Consultation hours, 9 to 12 a. m., 2 to 4 p. m. Home phone 411, Bell phone 517. Residence, The Connor.

After this advertisement appeared, a post office inspector caused certain letters to he written and mailed to appellant from Galena, Missouri, to which letters was affixed the name “Susie Davis.” Said letters and the appellant’s replies thereto are as follows:

“Galena, Mo., May 10, 1912.
“Doctor M. Luther Spriggs.
“Dear Sir: I cut the enclosed from a Joplin Globe of
last Sunday, and wish to write you, as I was about to go to Kansas City or somewhere away from here. > I am not married and was indiscreet to allow my beau liberties which I should not have done. The worst of it is, I am caught, I fear, and in a family way. I missed just twice. I ought to be sick the 14th of this month but I don’t know whether I will or not. I have taken all kinds of medicine without avail. I am scared every day of discovery and believe I am getting larger.
“Please let me know if you will take it away and how much it will cost. I ask no charity as I have some money and I know the young man the cause of the trouble will furnish more, if needed. We can pay you well between us. Please destroy this letter. Yours truly,
“Susie Davis,
“Galena, Mo.”
“Joplin, Mo., May 11, 1912.
“Replying to yours of the 10th inst., allow me to say that you should come here at the earliest possible moment At that time we can go fully into all of the details.
“Very truly yours,
“M. Lutheb Spbiggs.”
“Galena, Mo., May 21, 1912.
“Doctor M. Luther Spriggs.
“Dear Sirj Replying to your letter in regard to my coming to Joplin for operation, I would ask what the approximate cost will be. I do not want to make the trip to Joplin without enough money to have the work done. I can get the money easier now than I can get it after I get there. I can leave here as soon as I hear from you.
“Yours truly,
“Susie Davis,
“Galena, Mo.”
“Joplin, Mo„ May 22, 1912.
“Dear Miss Davis:
“Will say in reply to yours of the 21st inst., that your bill with me will be approximately $125 and your living expenses will have to be met for something like a week or possibly ten days.
“It seems to me that $150 should be ample to take care of everything.
“Remember that it is important to act as promptly as possible. Very truly yours,
“M. Lutheb Spriggs.”
“Galena, Missouri.
“Dr. M. Luther Spriggs.
“Dear Sir: Replying to your favor of the 22nd inst., I had
no idea the price for relieving one in a family way was over $25 to $50. While I can get more than this, I much fear that I cannot raise the amount you mentioned, and unless you can do some better for me, I must make other arrangements. I can raise $100. Please write me without delay what you will do. Yours truly,
“Susie Davis,
‘Galena, Mo.
“May 26, 1912."
“Joplin, Mo., May 26, 1912.
“Dear Miss Davis:
“Replying to yours of today allow me to say that we do not ordinarily make any concessions in such matters. However, I am willing under the circumstances, to allow you the reduction you speak of, viz.: $100 professional fee. You
will of course have to defray your living expenses for a week or ten days, which will be moderate, and I will be gjad to assist you to make arrangements in this way that will be satisfactory.
“Hoping this will meet with your approval.
“Very truly yours,
“M. Lutheb Spriggs.”
“Galena, Mo., May 30, 1912.
“Dr. M. Luther Spriggs.
“Dear Sir: Replying to your letter of the 26th inst., I thank you for the concession you have made, but since my last letter, I have come unwell a little. Do. you think I could be pregnant under the circumstances? I have missed a week or two before but never anything like this. Could my worrying over this matter have kept off my monthly sickness? However, the flow is not like it usually is and there is some pain which is not usual with me. Do you think I should still come to Joplin and have the work done? I can come if you think it possible that I am in a'family way and that I should come under the circumstances.
“Thanking you for your prompt attention to this matter for me, I am, Yours very truly,
“Susie Davis.”
“Joplin, Mo.
“Dear Miss Davis:
“Replying to yours of the 30th inst., will say that you should not be confused by the appearance of a discharge. By all means do not delay your coming as we are losing valuable time. There is no doubt whatever in my mind in regard to the actual condition. However, when I examine you T will be in a position to tell you definitely all about the details. It is not uncommon for women to have a menstrual discharge, which originates from the cervix, in a condition such as yours and they are sometimes deceived by it. You may be quite positive that worry and anxiety would never cause a delay such as yours. I cannot impress too forcibly on your mind’ the absolute necessity of prompt action. Assuring you of my best wishes and hoping to see you soon; very truly,
“M. Lutheb Spbiggs,”
“May 30, 1912.”

The complaint was signed by three physicians of Joplin, Missouri who describe themselves as the “Board of Censors of Jasper .County Medical Society.” Neither of those physicians testified at the trial.

The secretary of the State Board of Health testified that several physicians of Joplin, Missouri, had told him that appellant had the reputation of being a criminal abortionist.

Pour physicians residing at Joplin, Missouri, and two residing at Galena, Missouri, testified that appellant had heen practicing medicine in Joplin for about ten years; that they were quite intimately acquainted with him, and that his reputation was of the very best. They also testified that he was a very skillful surgeon; that a large part of his professional work consisted in performing operations upon patients brought to him by other doctors. He had operated upon one of the physicians who gave evidence in this cause, and upon the wife- of another of said witnesses. The evidence of all six of these witnesses was very laudatory of the personal character and professional ability of appellant. They had never heard of him being suspected of committing criminal abortions untils this proceeding was instituted.

It is conceded by the respondents that “Susie Davis” had no real existence, and that her name was simply used by the post office inspector in carrying on the correspondence with appellant hereinbefore set out.

OPINION.

I. The theory of respondents is that the letters introduced prove that appellant offered, to commit the crime of criminal abortion upon the mythical “Susie Davis;” in other words, that he was possessed of evil thoughts, or a willingness to commit crime, and therefore, his license to practice medicine and surgery should be revoked.

The statute under which the Board of Health suspended the appellant is as follows:

“The board may refuse to license individuals of bad moral character, or persons guilty of unprofessional or dishonorable conduct, and they may revoke licenses, or other rights to practice, however derived, f°r tike causes, and in cases where the license has been granted upon false and fraudulent statements, after giving the accused an opportrinity to be heard in his defense before the board as hereinafter provided. Habitual drunkenness, drug habit or excessive use of narcotics, or producing criminal abortion, or soliciting patronage by agents, shall be deemed unprofessional and dishonorable conduct within the meaning of this section, but these specifications are not intended to exclude all other acts for which licenses mail be revoked.” ' [Section 8317, R. S. 1909.]

That portion of the statute upon which the action of the respondents in finding appellant guilty of dishonorable and unprofessional conduct must be sustained, if it can be upheld at all, is found in the last three lines before quoted, and is as follows: “but these specifications are not intended to exclude all other acts for which licenses may be revoked.”

Concretely stated, the contentions of appellant] are: (1) That the evidence does not prove that he offered to commit the crime of abortion; (2) that if it were satisfactorily proven that he offered, or was willing, to commit said crime the statute does not authorize the State Board of Health to revoke his license or suspend him from the practice of medicine and surgery, because he merely possessed a desire to do a dishonorable and unprofessional act.

II. To properly dispose of the issues we must consider the nature of the right which appellant held as a practicing physician. Is it a mere privilege? Is it a vested right? Is it property? Some of the authorities cited by respondents hold that a license to practice a profession is not property, and not a right at all, but only a privilege which the State may withdraw without the formality of a trial, and without a compliance with the constitutional guaranties (Sec. 10, art. 2, Constitution of Missouri) which protect persons, property and character. [State ex rel. v. Goodier, 195 Mo. l. c. 560.]

I am impressed with, the idea that a more logical and rational view was announced by the members. of Division One of this court in the recent case of State ex rel. Shackleford v. McElhinney, 241 Mo. l. c. 606, wherein it was held that the right of a licensed attorney to practice law is a “valuable property right.”

By analogy, it must be admitted that if the right of an attorney to practice law is a property right, then the duly licensed physician has a property right, protected at least by such safeguards as the Legislature has thrown around it. It is not a mere shadowy privilege which may be revoked regardless of whether the possessor has violated the laws of the State. By what we have said it should not be inferred that we desire to overrule the Goodier case. It is not necessary to disturb that decision in order to reach a correct conclusion in this case.

We approach the solution of this case with the understanding that the appellant, through his license to practice medicine, and through his ability and industry, has become possessed of at least a valuable privilege — perhaps a property right — which has been suspended by the action of the respondents for his alleged violations of the laws of this State.

III. The next preliminary question which arises in the case is, shall that part of section 8317, supra, which authorizes the Board of Health to revoke licenses of physicians, be adjudged a remedial or a penal statute? If remedial, it must be liberally construed in behalf of both respondents and appellant, while if it be a penal law, it must be strictly construed against the respondents, as the representatives of the State, and liberally construed in favor of appellant. [State v. Balch, 178 Mo. 392; State v. Koock, 202 Mo. l. c. 235; State v. McMahon, 234 Mo. l. c. 614.]

This rule is announced in 2 Lewis’s Sutherland’s Statutory Construction (2 Ed.), section 531:

“Among penal laws which must be strictly construed, those most obviously included are all such acts as in terms impose a fine or corporal punishment under sentence in State prosecutions, or forfeitures to the State as a punitory consequence of violating laws made for preservation of the peace and good order of society.. But these are not the only penal laws which have to be so construed. There are to be included under that denomination also all acts which . . . take away or impair any privilege or right.”

A statute which provides for the disbarring of attorneys has been held to be a penal law. [Moutray v. People, 162 Ill. 191.]

A penal statute is construed with a degree of strictness commensurate with the severity of the penalty it imposes, and where the penalty, as in this case, is onerous, no one can be held to have violated its provisions unless his acts come within both the letter and the spirit of the law. [2 Lewis’s Sutherland’s Statutory Construction (2 Ed.), sec. 520-1; State ex inf. v. Railroad, 238 Mo. 605, l. c. 612.] All laws, however, must receive a rational, and not an arbitrary, construction.

Upon the well-considered precedents we have no hesitation in holding that the law now in judgment, in so far as it authorizes the revocation of licenses of physicians, is highly penal, and must be treated as a penal law.

IV. Coming back to the facts in this case we find no insistence in the brief of the Honorable Attorney-General that the conviction and suspension of appellant can be sustained on the advertisement which the appellant published in a newspaper, or upon the evidence of Doctor -Hiller to the effect that several physicians of Joplin had told him that appellant hore the reputation of being a criminal abortionist. It would certainly have been an insult to the intelligence of the age to contend that a judgment could be sustained on the mere hearsay evidence of Doctor Hiller, which ought not to have been admitted or considered by respondents.

Y. This leaves for our consideration the letters between the appellant and the mythical “Susie Davis.” It will be observed that appellant did not directly offer to perform an abortion upon “Susie,” though the letters written to him .were cunningly worded and designed to make it appear that if he agreed to treat her at all he was willing to commit that crime. There is no expert medical testimony before us which tends to explain whether the symptoms narrated in the letters indicated the presence of a living foetus, a dead foetus, or some ailment of the womb or genital organs. The writer of the letter, after describing “her” symptoms, does not say that she is pregnant, but only that she fears she is pregnant. If the symptoms detailed in the letters indicated the presence of a dead foetus, then the replies which appellant made to said letters would not point to an evil purpose or a willingness on his part to commit criminal abortion.

The appellant proved such an .excellent reputation by his neighbors — physicians who knew him intimately —that if the letters could have been construed so as to be consistent with an innocent purpose, the Board of Health, being honorable men and learned in the medical science, would certainly have given him the benefit of the doubt and acquitted him.

The fact that they found him guilty must, under the evidence in this case, be taken by us to mean that the symptoms and conditions narrated in the Davis letters unmistakably pointed to the 'existence of a living foetus, which, it would have been a crime to remove or destroy.

VI. This brings us to the application of the statute to the facts proven. Did the General Assembly, by the enactment of section 8317, Revised Statutes 1909, mean to designate a mere willingness to commit the crime of abortion as dishonorable and unprofessional conduct? We may gara some light on this point by a close consideration of the specific acts designated as unprofessional conduct.

There is a well-recognized rule that where a law specifically designates several matters or things which shall be governed by its provisions, and then by general language undertakes to include other acts and things not specifically named, such law must be so construed as to apply only to things or acts of the same general nature as those definitely set out. [City of St. Louis v. Kaime, 180 Mo. 309, and State ex rel. v. Berryman, 142 Mo. App. 373.] This is but the restatement of a rule of common sense and everyday experience of mankind. When a man is speaking only of bonds and promissory notes his mind is not supposed to be dwelling on wagons and threshing machines, and we do not apply his words uttered on that occasion to any such subjects. If a man speak of wild animals his mind is not likely at the selfsame time to dwell upon domestic animals, and it would be silly to give his words such a construction.

The General Assembly cannot enact a valid law without the minds .of its members considering the things to which the law is to apply, for the legislative will is what becomes the law. In a broad, general sense we discern the legislative will by the-words it has spoken through its enactments, the same as we would interpret the language of an individual.

Applying this well-known and simple rule to the statute now under consideration we find.that “habitual drunkenness, drug habit, or excessive use of narcotics” are declared dishonorable and unprofessional conduct; likewise “producing criminal abortion or soliciting patronage by agents ’ are placed in the same category. The first three specifications, it will be observed, grow out of acts of a physician which tend to weaken or destroy his mind and render him mentally incapable of properly applying his medical skill. The second two specifications pertain to acts which are by the Legislature deemed sufficient grounds for revoking a license. It will further be observed that all five of the specifications named grow out of intentional affirmative acts — not a mere contemplation or willingness to perform wrongful acts. The general specification then follows: “but these specifications are not intended to exclude all other acts for which licenses may be revoked.” It will thus be seen that the lawmakers, after having particularly designated certain mind-destroying hahits and certain wrongful acts for which the license of a physician may be revoked, undertook to designate generally that there are other acts which may justify such revocation. To my mind, it is clear that the general specification cannot be applied to mere evil thoughts or a consent to do wrong where no wrong is actually done. It could not logically be urged that a mere desire or willingness to use intoxicants or narcotics excessively would impair the mind; and for the same reason it must be held that a mere consent to perform an abortion would not make the appellant ah abortionist, or subject him to the penalties of having committed that crime. The general specification of the statute in judgment is directed solely.against certain undesignated acts — not against evil thoughts or a willingness to perform wrongful acts.

As we have said, the statute in judgment is highly penal and cannot he expanded or enlarged beyond its letter or spirit. Consequently, it does not support the action of respondents in revoking appellant’s license. We have been taught that a mere desire to do wrong is as great a sin as the act of doing wrong itself. That rule will be all right when the Creator sits as Judge, but mere courts and boards of health have not the capacity to search out and correctly weigh the many impulses which enter the human mind. For that reason the State concerns itself mostly about wrongful acts, not evil thoughts, and its agents and administrative boards must be governed accordingly. No one can be deprived of any right or privilege because his mind has been contaminated by evil thoughts, unless the statute has denounced said evil thoughts in plain terms. However reprehensible it may be for a physician to entertain a desire to commit abortion, his license cannot be revoked unless by a written statute his evil desires are made a ground for subjecting him to that penalty.

Our learned Attorney-General earnestly insists that it was impossible for the General Assembly to designate the numerous acts and things which would constitute “dishonorable and unprofessional conduct” on the part of physicians, and that, therefore, the general specification in section 8317, supra, should be construed to include all acts (and, inferentially, all wicked thoughts and evil desires) which, by “common judgment” are found to be dishonorable. He cites in support of this contention: People v. Apfelbaum, 251 Ill. l. c. 22; Berry v. State, 135 S. W. l. c. 631; Morse v. State Board of Medical Examiners, 122 S. W. l. c. 448; Spurgeon v. Rhodes, 167 Ind. l. c. 11, 12; and Wolf v. State Board of Medical Examiners, 109 Minn. 360.

The authorities cited tend to support the contention of respondents. The attorneys for the appellant, with equal industry, have cited the following' cases which tend to sustain their insistence that the general specification in section 8317, supra, is void for uncertainty: Matthews v. Murphy, 23 Ky. L. R. 750, 54 L. R. A. 415; Ex parte McNulty, 77 Cal. 164, 11 Am. St. 257; Hewitt v. Board of Medical Examiners, 148 Cal. 590; Czarra v. Board, 25 Appeals D. C. 443; and Ex parte Jackson, 45 Ark. 158.

In view of the conflicting opinions of respectable courts on this proposition we will quote what is said by the learned editors of Cyc.:

“The grounds commonly designated by the statute upon which the medical board is authorized to re.voke a physician’s license or certificate are unprofessional, dishonorable, or immoral conduct. Unprofessional or dishonorable conduct is not defined by the common law, and what conduct may be of either kind is a matter of opinion only. For this reason it has been held in several cases that such a statute is void for uncertainty. Similar statutes have been construed in other jurisdictions without the question of validity being raised, the courts merely considering what can be deemed unprofessional, dishonorable, or immoral conduct.” [30 Cyc. 1555 (B).]

There is such ‘a great divergency in judicial thought on this subject that after reading it all we find ourselves groping in a wilderness of confusing precedents. In considering precedents it is usually safest to keep an eye on the rules of common sense which often prove a safer guide than hair-splitting judicial reasoning.

We do not take judicial notice that doctors are more willing to commit crimes than men of other professions. Physicians are usually people of intelligence, with a high sense of the duties and responsibilities of good citizenship. We are, therefore, unwilling to believe that the physicians of onr State, or any of them, are guilty of such a multiplicity of wrongful acts that their conduct may not safely be regulated by a single legislative enactment.

By section 4739, Revised Statutes 1909, it is made a crime to offer for sale any secret drug designed to prevent conception, and it would be the rankest folly to say that it would have been more difficult to prohibit physicians from offering to commit abortion than it was to prohibit persons from offering for sale obnoxious drugs. We, therefore, hold that it would have been possible for the General Assembly to designate the particular offenses for which they intended that the licenses of physicians might be revoked.

Another theory of the Attorney-General is that the general specification in section 8317, supra, must be construed to authorize the Board of Health to determine what shall constitute dishonorable and unprofessional conduct. This point does not deserve* serious consideration. To grant the Board of Health that power would be to concede that it has the right, to enact from time to time such laws as it deems necessary to regulate the conduct of physicians and surgeons. We give the honorable members of the Board of Health credit with possessing too much good judgment to ‘attempt to assume the role of lawmakers.

If section 1, article 4, of the Constitution of Missouri, vesting in the General Assembly the power to make laws, and article 3 of said Constitution prohibiting executive officers from performing legislative functions, could both be suspended, and the Board of Health given power to legislate, the respondents would be in no better condition, so far as the facts of this case are concerned. It nowhere appears in this record that prior to the institution of this action to revoke appellant’s license the State Board of Health had ever enacted, or pretended to prescribe, a law or rule prohibiting physicians from offering to commit abortion. The G-eneral Assembly is prohibited from giving its enactments retrospective effect, and if we concede legislative powers to tbe Board of Health (which we do not) that board would have to be governed by the same Constitutional limitations. [Sec. 15, art. 2, Constitution of Missouri.]

The action of the State Board of Health in suspending the appellant from the practice of medicine and surgery should be quashed and for naught held; and the judgment of the circuit court of St. Louis City sustaining and upholding the action and finding of the Board of Health should be reversed. It is so ordered.

Walker and Faris, JJ., concur.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    JOHN H. HAVLIN v. CONTINENTAL NATIONAL BANK OF ST. LOUIS, Appellant.
    Division Two,
    December 9, 1913.
    1. PROMISSORY NOTE: Accommodation Indorser: Voluntary Payment. An accommodation indorser for the maker of a promissory note is, in contemplation of law, a surety. As such he is equally bound with the maker to pay the note when it becomes due, and his payment in no sense is 'voluntary.
    2. -: -: -: Legal Coercion. Where certain certificates of stock were deposited as collateral security, with the payee of notes, some of which were signed by plaintiff as accommodation indorser, under a contract by which the payee was given power to sell the stock at public or private sale in default of the payment of the debt, and after the stock was sold and bought in by the payee and resold to an' innocent party, the payee called upon the accommodation indorser for the payment of the notes indorsed by him, and the indorser protested that he ought not to pay them, that the sale of the collateral was invalid, and that the payee should apply the proceeds of the sale to the payment of the notes signed by him, and the payee insisted the sale was valid and that he had applied the proceeds to the payment of the note upon which he was not indorser, and the indorser thereupon paid the notes indorsed by him, the payment was not voluntary, but was made in pursuance to what may not inaptly be termed legal coercion. The payment cannot be said to have been made under a mistake of law, nor was it voluntary. In such case it became the indorser’s legal duty to pay the notes, and thereby avoid the annoyance and expense of litigation.
    3. -: -: Presentment and Demand. Presentment and demand are not necessary where notes at their maturity are owned by a bank at which by their terms they were made . payable.
    4. -: -: Payment Twice: Subrogation. An accommodation indorser of a note who is compelled to pay the debt of his principal is subrogated to the latter’s rights. So that, where certain certificates of stock were deposited as collateral security with the payee of notes, some of which were signed by the plaintiff as accommodation indorser, and the payee afterwards sold the certificates to an innocent purchaser, and credited the amount of the sale upon the notes not indorsed by plaintiff, and thereafter required plaintiff to pay the notes indorsed by him, and the maker sued the payee for an accounting, alleging the sale of the stock was illegal, and recovered in that suit, and the amount of all the notes was credited to the payee, and a surplus was adjudged to belong to the maker, the accommodation indorser can recover from the payee the amount of money paid by him, for under the circumstances the debt was twice paid.
    5. SALE OF COLLATERAL: No Payment or Manual Possession. If the sale of the stock deposited with the payee of a note as collateral security was actually made by the pledgee, the sale was not changed or altered by the fact that the purchaser did not pay for the stock in actual cash or did not come into manual possession of it.
    Appeal from St. Louis City Circuit Court. — Hon. Moses N. Sale, Judge.
    Affirmed.

      George L. Edwards and Edtvard D’Arcy for appellant.
    (1) Havlin’s payment to the bank, if made under mistake at all, was made under mistake of law, and, therefore, cannot be recovered. Hethcock v. County, 200 Mo. 170; Brewing Co. v. St. Louis, 187 Mo. 367; Niedermeyer v. Curators, 61 Mo. App." 654; State ex rel. v. Stonestreet, 92 Mo. App. 220; Teasdale v. Stoller, 133 Mo. 651; Douglas v. Kansas City, 147 Mo. 428; Scott v. Ford, 68 L. R. A. 469. (2) But if Havlin’s mistake can be regarded as a mistake of fact, still he cannot recover the money, because the mistake did not induce him bona fide to believe that the money was due when he paid it. Brewing Co. v. St. Louis, 187 Mo. 376; 15 Am. & Eng. Ency. Law (2 Ed.), 1106'. (3) The record in the Hagan case, to which, Havlin was not a party, is not admissible in this case against the appellant bank, as proof of plaintiff’s cause of action. 1 Greenleaf on Ev., secs. 522, '524, 538, 539; Story Eq. PL, sec. 791; 4 Hughes Gr. & Bud., 979, rule 8. (4) The contract of suretyship does not impose upon the surety an obligation to be bound by judgments rendered against the principal, unless the obligation expressly assumes such an undertaking. State v. Bolt, 27 Mo. 343>. (5) There is no such privity between the maker and the indorser of a note that a judgment against or in favor of one will be binding upon, or available to, the other. 23 Cyc. 1266, n. 30; Barker v. Cassidy, 16 Barb. 177; Fenn v. Dugdale, 31 Mo. 580; Cobb v. Little, 2 Me. 261, Í1 Am. Dec. 72; Chrisman v. Hannan, 29 Gratt. (Ya.) 494, 26 Am. Bep. 387; Brooklyn v. Bank, 102 U. S. 14; 2 Smith’s Lead. Cases (8 Ed.), p. 955, note to Kingston case. (6) A judgment against the principal. is of no eff ect as against the surety. A fortiori a judgment against or in favor of Havlin, the principal, is of no effect against Hagan, regarded as surety. Bodini v. Lytle, 17 Mont. 448, 52 L. B. A. 165; Note to Kingston case, 2 Smith’s Lead. Cases (8 Ed.), pp. 954, 9561 (7) It is only where, as between principal and surety, notice of the action is given, that the other party is bound by the result. 1 Greenleaf Ev. (14 Ed.), sec. 188; Love joy v. Murray, 3 Wall. 1,18 L. Ed. 129; St. Joseph v. Bailroad, 116 Mo. 636-; Beef Co. v. Consolidated Co-., 171 Mass. 127; Ryerson v. Chapman, 66 Me. 557, 2 Black Judg., 567-573, 2 Yan Fleet For. Adj., 576-579.

      Robert L. McLaran and L. A. Steber for respondent.
    (1) A surety paying the debt of his principal is entitled to be subrogated in equity to the securities pledged with the creditor by the principal debtor to secure the payment of the debt. Cowgill v. Linville, 20 Mo. App. 147; Canthorn v. Berry, 69 Mo. App. 404; Brewing Co. v. Jordan, 110 Mo. App. 286; Benne v. Sehnecko, 100 Mo. 227. (2) The fact that the surety pays by giving his individual note is Immaterial. 27 Am. & E.ng. Ency. Law (2 Ed.), p. 212; Brandt on Suretyship, sec. 249'. (3) The claim of $30,000 for the conversion of the pledged stock stood in the place and stead of the said stock. . Hagan v. Bank, 18-2 Mo. 319. (4) A pledgee has no right to sell on credit a,t all, unless the power of sale authorizes it. 2 Perry on Trusts, sec. 768a; Ive-s v. Davenport, 3 Hill, 373. (5) A trustee selling on credit, in excess of his power, is personally responsible for the purchase price. Davis Appeal, 14 Pa. St. 372. (6) A creditor after receiving payment from the surety has no right to cancel or compromise any security without the surety’s consent. 27 Am. & Eng. Ency. Law (2 Ed.), p. 210. (7) The equitable doctrine of constructive trusts is of flexible character and covers all cases where the defendant has received or obtained possession of any money or property which in equity and good conscience he ought to pay over to the plaintiff. Banking Co. v. Com. Co., 195 Mo. 288 ; Harrison v. Murphy, 106 Mo. App. 473. (8) Where a surety pays the debt of his' principal and the creditor thereafter collects the same debt from the principal, .without disclosing the fact that he has been paid by the surety, the creditor thereupon holds the money received from the principal debtor to the use of the surety. 1 Perry on Trusts, p. 369, sec. 247a. (9) When the holder of a note assigns the note for full value and thereafter collects the full amount from the maker, without disclosing the fact that he has assigned the note, he thereupon holds the proceeds received from the maker to the use of the assignee. 1 Perry on Trusts, p. 369', sec. 247a; Ellis v. Amason, 2 Dev. Eq. 273; Fortesque v. Barnett, 3 Myl. & K. 36. (10) The record of a judgment is not only competent but it is conclusive evidence against all persons to prove that the proceedings therein, recorded actually took place as therein recited, and that judgment was actually rendered as therein set forth. Steven’s Digest, art. 40; 1 G'reenleaf on Ev., sec. 538; Taylor on Ev., sec. 1480.
   WALKER, J.

John H. Havlin, the respondent, brought suit in equity against the Continental National Bank, hereinafter designated as “the bank,” appellant, in the circuit court of the city of St. Louis, to recover seven thousand, two hundred dollars paid by him to the bank as an endorser on two notes of one O. L. Hagan, which subsequent to Havlin’s payment were again paid in full by Hagan in a settlement with the bank, which thereafter refused to repay Havlin. Upon a trial a judgment was rendered in favor of Havlin, from which the bank appeals.

The material facts are as follows:

O. L. Hagan was indebted to the bank in the sum of $23,203.15. This debt was represented by three promissory notes executed by Hagan to the bank, one for $5000, another for $1500', and the balance by a third note.- The respondent Havlin, who then resided and. now resides in" Cincinnati, Ohio, indorsed the first two notes for the accommodation of Hagan, the bank having knowledge of the character of the indorsement. As further security for the payment of said debt, Hagan had deposited with the bank as collateral 770 shares of the capital stock of the Hagan Opera House Company-under a contract in which said stock was valued at $89,-000, and the hank was given power to sell same at public or private sale in default of the payment of the indebtedness.

Oh the 22nd day of June, 1897, all of said debt was past due and unpaid and the bank, claiming to act under the power of sale conferred by the contract, sold said stock at a so-called public sale on the floor of the Merchants Exchange during a session of said body, -in the city of St. Louis, when it was bought by one Finis E. Marshall, cashier of the bank, for $5000', he being the only bidder. About a week after the sale the bank, claiming to be the absolute owner of the stock, sold it at private sale to J. C. Jannopoulo for $30',000, receiving a part of the purchase price in cash and taking Jannopoulo ’s notes for the balance. On the same day, or the day after the sale to Jannopoulo, said Marshall, representing the bank, called upon Havlin, who happened to be in St. Louis, for the payment of the two notes of $5000 and $1500 respectively. Havlin protested that he ought not to pay them, that the so-called public sale of the collateral made by the bank -on the floor of the. Merchants Exchange was invalid, and that the bank should apply the proceéds of the sale of the stock to Jannopoulo to the payment of the notes. The bank through Marshall insisted that the sale on the Merchants Exhange floor for $5000' was valid; that it had applied this sum to the payment of the third note upon which Havlin was not an indorser; that upon the purchase of the stock by Marshall it became the property of the bank, and that the proceeds of the sale of the stock to Jannopoulo were the bank’s individual property, and that the notes indorsed by Havlin were still wholly unpaid. After much discussion, Havlin, upon the repeated declarations made by Marshall, that the bank would look to him (Havlin) for payment, finally took up the two notes upon which he was indorser, and gave his individual notes for their full amount. The original notes were then indorsed over to him, without recourse, and the individual notes he subsequently paid in full to the bank.

A few weeks after the payment of the notes to the bank by Havlin, who thereupon returned to Cincinnati, to-wit, on August 9, 1897, Hagan brought suit against the bank to redeem the 770 shares of the Hagan Opera House Company stock, pledged by him to the bank as aforesaid, or for an accounting as to its value. In this suit Hagan contended that the bank had improperly exercised its power to sell the stock at public sale under the pledge made by him to it; that the so-called public sale was invalid, and that he was, therefore, entitled to redeem the stock, or if it had been sold, to have an accounting for its value.

The trial court sustained this view, rendered a decree setting aside the sale made on the floor of the Merchants Exchange as unfair and found that the bank had subsequently “effectually sold at private sale to J. C. Jannopoulo, for the sum of $30,000, the 770 shares of the capital stock of the Hagan Opera House Company, but that said Jannopoulo was an innocent purchaser for value and without notice, and that the bank must account to plaintiff for that amount of money.” This judgment was, upon appeal, affirmed by this court in Hagan v. Continental National Bank, 182 Mo. 319. In this suit Hagan alleged that he was indebted to the bank in the sum of $23,340, that being the full amount of his indebtedness, inclusive of the two notes for $6500 indorsed by Havlin as aforesaid, and which had been paid by the latter. There is no evidence that Hagan knew that Havlin, his indorser, had previously paid the two notes to the bank. At the time of the trial Hagan was dead.

The bank in its answer admitted that Hagan’s indebtedness was $23,340, together with interest thereon, which necessarily included the two notes indorsed and which had been paid by Havlin, there being no other indebtedness of Hagan to the bank. The answer did not mention the fact that Havlin bad paid the notes indorsed by him, and that said notes upon being paid bad been assigned to him. The decree rendered in favor of Hagan in that suit was upon the theory that be was still indebted to the bank in the full amount of all notes held by it against him on June 22, 1897, or prior to Havlin’s payment. The court, therefore, gave the bank credit for the full amount of these notes and rendered judgment over in Hagan’s favor for the sum of $6796.85, being the difference between tbe sum of $30,-000, for which tbe court decreed that tbe bank was accountable, and tbe amount of all of tbe notes Hagan bad given tbe bank. In this decree, therefore, tbe bank received and accepted credit for tbe amount of tbe notes which bad been previously paid by Havlin and as a consequence was twice paid tbe notes of Hagan on which Havlin was indorser.

Upon the presentation of the foregoing facts and submission of the cause, the St. Louis Circuit Court at the June term, 1909, rendered the following judgment in the case at bar:

“Now at this day the court being fully advised of and concerning this cause heretofore submitted, doth find that the defendant [the bank] is indebted tó the plaintiff [Havlin] in the sum of $7200', with interest at the rate of six per cent per annum from October 2, 1906, to date. It is, therefore, considered and adjudged by the court that the plaintiff recover of the defendant the sum aforesaid as found, together with interest thereon, and also bis costs and charges herein expended and that execution issue therefor.”

It is from this judgment that the bank appeals.

Appellant’s contentions are:

First. That the money paid by respondent to the bank was paid by him with knowledge of all the facts and in settlement of a dispute as to bis liability to the bank; and that bis mistake, if there was a mistake, in paying money to the bank, was a mistake of law which will prevent his recovery in this case.

Second. Even if respondent’s mistake in paying the money can be regarded as a mistake of fact in that he was ignorant of the manner in which the sale of the stock had been conducted on the floor of the Merchants Exchange, he nevertheless cannot recover because he was not induced to pay the money because of such alleged mistake of fact, but to avoid annoyance and expense of litigation with the bank.

Third. That there never was a sale to Jannopoulo of the Hagan Opera House stock bought in by Marshall at the Merchants Exchange sale; that Jannopoulo was to pay for the stock out of the profits earned in conducting .a theatre in the Hagan Opera House, which profits never materialized and he never paid but $12,-500 of the $30,000* contracted to be paid.

I. Respondent, an accommodation indorser for Hagan, the maker, on the notes, to the bank, was, in contemplation of law, a surety. [Weimer v. Shelton, 7 Mo. 237; Osborne v. Fridrich, 134 Mo. App. 449.] As such, he was equally bound with the maker to pay the notes when they became due. In so doing he simply met the obligation he made when he became surety,’ and the payment can in no sense be said to have been voluntary ; in fact, it has been expressly decided in another jurisdiction that a payment made by an accommodation indorser under a state of facts similar to those in the concrete case, was not voluntary (Smith v. Folsom, 80 Ohio St. 218) but was made under what may not inaptly be termed- legal coercion. An indorser of a negotiable instrument warrants inter alia that if the instrument is dishonored he will, upon notice thereof, duly given to him; pay the same, with interest, [Kinsel v. Ballou, 151 Cal. 754; Mer. Natl. Bk. v. Bentel. 15 Cal. App. 170.] No question as to dishonor arose in the case at bar, but it may be said in passing, if it had, presentment and demand aro not necessary where notes, as in this case, were at maturity owned by the bank and by their terms were made payable there. [Bank U. S. v. Smith, 11 Wheat. 171, 6 Law Ed. 443; Cent. Natl. Bank v. Stoddard, 83 Conn. 332.]

Respondent’s interest as well as his legal duty, therefore; when the notes became due and remained unpaid, was to pay them and thereby avoid the annoyance and expense of litigation. [Wilson v. Kieffer, 141 Mo. App. 137.] A payment made under such circumstances does not involve the question of a mistake of law as contended by appellant, but on account of the legal relation of the respondent to the obligation as a surety, the payment may properly be held to have been made under duress, thus rendering the contention groundless. This disposal of appellant’s first contention eliminates the second from consideration.

As to the third contention that there was no safe of the Hagan Opera House stock to Jannopoulo, it would be sufficient to say, if this fact were vital to the-determination of the matter here at issue, that it was-fully adjudicated and the safe declared to- have been made in Hagan v. Continental Bank, 182 Mo. 319. However, leaving out of consideration the ruling of this court in the Hagan case, the record here is ample to sustain the conclusion that the sale was made; it is admitted both by direct averment and by implication in appellant’s answer; it is testified to by Jannopoulohimself and by Lewis, formerly cashier of the appellant bank, and now cashier of the.Bank of Commerce,, which subsequently absorbed the appellant bank. Other evidence direct and circumstantial points to proof of a sale. If the transaction constituted a sale, and we hold that it did, then it was none the less so when respondent brought this action, and contentions to the contrary based on the ground that Jannopoulo did not pay for the stock or that he did not have manual possession of it, cannot change it. The matter, therefore, in our opinion, is no longer open to argument.

II. Respondent’s payment not having been voluntary but in discharge of his obligation as a surety, and the bank having twice been paid the notes, the second time by the maker, Hagan, in his settlement with the bank after the judgment against it in his favor (Hagan v. Bank, supra), the respondent is entitled to recover from appellant the amount paid by him with interest, under the rule that one compelled to pay the debt of a principal is subrogated to the latter’s rights. If the principal had himself twice paid the notes, he would unquestionably be entitled to recover of the bank any sum paid in excess of the amount of. the debt and interest actually due. A surety is in no worse position and is entitled to a like right of action. This conclusion is too elemental to require the citation of authorities to sustain it and is clearly consonant with equity and good conscience.

The judgment of the circuit court should, therefore, be affirmed, and it is so ordenad.

Brown, P. J., and Paris, J,, concur.


text:
    THE STATE v. JOSEPH WELLMAN, Appellant.
    Division Two,
    December 9, 1913.
    1. INFORMATION: Crime Against Nature. In view of the constitutional provision declaring that- the' accused may demand • “the nature and cause of the accusation against him,” the information attempting to charge an accused with the detestable and abominable crime against nature denounced by Sec. 4726, R. S. 1909, as amended by Laws 1911, p. 198, should designate, at least in a general way, the acts by which the crime is committed.
    2. -: -: Sexual Intercourse. The words “sexual intercourse” mean the actual contact of the sexual organs of a man .and a woman, and an actual penetration into the body of the latter; and while they may be reasonably expanded to cover a lustful contact between the sexual organs of mankind with the sexual organs of beasts, accompanied by penetration, they cannot be held to embrace the sexual organs of one person and the nonsexual organs of another.
    3. -: -: Charging Sexual Intercourse With Mouth: Surplusage. An information charging that defendant “did then and there unlawfully and feloniously commit the detestable and abominable crime against nature by then .and there having sexual intercourse with one Belle Shaffer with his mouth,” contains an allegation that is grossly repugnant to the main charge, namely, “by then and there having sexual intercourse with Belle Shaffer;” and that repugnant charge cannot be rejected as surplusage without leaving the information without the name or any description of the party upon whom the crime was committed, and hence it is not cured by Sec. 5115, R. S. 1909. The information should have charged that defendant “did then and there unlawfully and feloniously commit the detestable and abominable crime against nature upon one Belle Shaffer, a female human being, by then and there inserting his mouth into the sexual organs and private' parts of her, the said Belle Shaffer.”
    4. EVIDENCE: No Objection. To secure the exclusion of im- ' proper testimony there must be a timely objection, pointing out the reasons why it should not be received. If the objection is not made until after the testimony is received, and then no reason is assigned why it should not be admitted, its reception is not reversible error.
    5. -: Reputation for Committing Similar Crimes. Testimony that defendant had the reputation of committing the class of crimes for which he is on trial is not admissible. [Distinguishing State v. Beckner, 194 Mo. 281; State v. Pollard, 174 Mo. 607; and State v. Shields, 13 Mo. 236; and overruling so much of State v. Oliphant, 128 Mo. App. 252, as announces a different rule.]
    6. -: Proof of Similar Crime by Rumor or Common Report. Nor is it proper, where defendant is charged with committing a crime against nature upon a certain woman, to prove by rumor or common report that he had committed the crime against nature upon another woman. No one can meet a rumor face to face, and to admit such rumor or common report in evidence is to deny him the constitutional right “to meet the witnesses face to face.”
    7. -: Different Crime. Nor is .'it proper, where defendant is charged with having committed the crime against nature, to prove that defendant had heen guilty of the specific crime of adultery with another woman.
    8. FAILURE TO INSTRUCT: Corroboration: Not Assigned in Motion for New Trial. A contention in appellant’s brief that the trial court erred in failing to instruct the jury that the prosecutrix must be corroborated, since, if the crime against nature upon her was committed as charged, she consented to its commission, cannot be considered on appeal, if not specifically assigned in the motion for a new trial.
    9. REMARKS OF PROSECUTING ATTORNEY: Unfair: Evidence of Other Crimes. The prosecuting attorney should never be allowed to appeal to the jury to convict the defendant because he has committed some other crime not in any way connected with the one for which he is being tried, or because his reputation is bad; and the remarks of the assistant prosecutor in this case, which are set out in paragraph five' of the opinion, were not warranted by the evidence, and were highly prejudicial to defendant.
    Appeal from Jackson Criminal Court. — Now. Ralph S. Latshaw, Judge.
    Reversed and remanded.
    N. A. Owen, F. W. Paschal and C. B. Lecwel for appellant.
    (1) The information filed fails to state a cause of action. The section of statute under which this case was tried is as follows: Sec. 4726, R. S. 1909. The statute is in derogation of common law, and must be strictly construed. At common law sodomy is the carnal copulation by human beings with each other against nature or with a beast, in which sense it includes crimes against nature, bestiality and buggery. In its narrower sense, sodomy is the carnal copulation betwéen two male beings per anum. At common law sodomy could not be committed except by penetration • of the organ into the person or body of another. The statute enlarges the definition of the crime so as to include the use of the mouth, but it does not exclude from the common law meaning that penetration is a necessary elemeat of the crime. The defendant could not penetrate the female organ with his mouth, and therefore the offense charged under the statute cannot come within the meaning of sexual intercourse as known to the common law. The act must he per ammi. Prindle v. State, 31 Tex. Cx. App. 551. Penetration is an essential element at common law. State v. V'ickman, 52 La. Ann. 1921; Green v. State, 79 S. W. (Tex. Or. App.) 304; Cross v. State, 17 Tex. App. 476; Commonwealth v. Thomas, 1 Va. Cas. 307,12 Coke, 37; Poster v. State, 1 Ohio Cir. Ct. 467. The information states that the defendant had carnal knowledge of the prosecutrix by the use of his month and tongue. The charge is in itself an impossibility. It was not sufficient to apprise the defendant of the nature of the offense with which he was charged. It describes the offense against nature by defining it as having sexual intercourse with the prosecutrix with the month. Sexual intercourse can only be had by persons or beings of the opposite sex, and with the sexual organs. The statute does not make sexual intercourse a crime, and it is impossible in nature, a fact known to all mankind, that sexual intercourse cannot be had with the mouth. (2) The evidence of the prosecutrix is utterly unworthy of belief. (3) The court did not instruct on all the law of the case, as by statute he is re- . quired to do so. If a crime had been committed against the prosecurtix, her testimony shows that she was a willing participator in the crime, and as such was equally guilty with the defendant, and her testimony, uncorroborated, should not have convicted him, and the court should have so instructed the jury. In a criminal prosecution it is the duty of thei court to give all necessary instructions, whether they are requested or not. State v. Branstetter, 65 Mo. 149; State v. Palmer, 88 Mo. 568; State v. Hensen, 106 Mo. 66; State v. Nelson, 118 Mo. 124; State v. Rufus, 1491 Mo. 406'; State v. Brugdorf, 53 Mo. 67; State v. Wilkins, 221 Mo. 450. (4) The court permitted the prosecuting attorney to continually make slurring remarks concerning the defendant and concerning the witnesses of the defendant, during the introduction of testimony, over the objections and exceptions of the defendant, and the court, in ruling on objections offered by defendant, many times, as shown in the statement of evidence herein, made comments that were calculated to and undoubtedly did' prejudice the minds of the jury. (5) The court permitted Mr. Curtin, the public prosecutor, against the objections and exceptions of defendant, in his argument to the jury, to make many statements outside the record concerning the defendant, and to call the defendant vile and abusive epithets, all calculated to prejudice the minds of the jury ¡against the defendant and his testimony.

      Jofm T. Barker, Attorney-General, and Ernest A. Green, Assistant Attorney-General, for the State.
    (1) The information is not attacked anywhere in the record except in the motion in arrest of judgment and we shall not dwell upon the question of its sufficiency as it charges the offense in the language of the statute and is in approved form. Laws 1911, p. 198; Sherwood’s Commentaries on Grim. Law, .chap. 63, p. 515; 2 Chit. Crim. Law, p. 49'; Kelley’s Crim. Law and Prac. (3 Ed.), sec. 936, p. 838. (2) The State had proof upon everything' required to constitute the offense and to fix the venue, and under appropriate instructions the jury returned a verdict of guilty. This court under such circumstances will not convert itself into a trier of facts and undertake to find a different result from that of the jury. State v. Wilkins, 221 Mo. 444; State v. Matthews, 202 Mo. 147; State v. McCullough, 171 Mo. 574; State v. T'etrick, 199 Mo. 100; State v. Williams, 199 Mo. 137; State v. Lilts, 191 Mo. 665; State v. Duesenbarry, 112 Mo. 293. (3) There was no error in admitting the testimony of Jacob Fromson with reference to the defendant’s general reputation for eomitting this particular character of crime. State v. O'liphant, 128 Mo. App. 261; State v. Shields, 13 Mo. 236; State v. Beckner, 194 Mo. 281; State v. Pollard, 174 Mo. 607. However, in any event, the ruling excepted is not subject to review, as no objection was made until after the question had been answered. Defendant waived his right to have the testimony excluded by thus waiting until he saw that the answer to the question was unfavorable. Stewart v. Watson, 133 Mo. App. 44. (4) The motion for a new trial assigns improper conduct no the part of the prosecuting attorney. The remarks complained of in the tenth ground of his motion for a new trial cannot be reviewed, as they are not set forth therein. If defendant wishes to have remarks of the prosecuting attorney reviewed in the appellate court, he must set them out in his motion for a new trial. State v. Miles, 199' Mo. 547. No request was made by defendant’s counsel for the court to rebuke the prosecuting attorney for referring to Ida M. Sours as a prostitute. Furthermore, there was no exception taken to the language used by the prosecuting attorney. Unless the defendant asks the trial court to rebuke the prosecuting attorney for improper remarks made, and excepts to the court’s failure to do so, the propriety of such remarks or of such ruling, though objected to at the time, cannot be considered an appeal. State v. Chenault, 212 Mo. 137; Champagne v. Hanley, 189 Mo. 709; State v. Yalle, 196 Mo. 29. With reference to the remark complained of in the fifteenth ground of defendant’s motion for a new trial, there was nothing improper in what the prosecuting attorney said. Such testimony had been introduced for the purpose of affecting defendant’s credibility. But it even if there had been, there was no request made for the court to rebuke the prosecuting attorney and no exception taken to the failure of the court.to do so. State v. Rasco, 239 Mo. 579; State v. McMullin, 170 Mo. 632; State V. Murphy, 201 Mo. 691; State v. Harvey, 214 Mo. 411.
   BROWN, P. J.

Convicted of the crime against nature as defined by the Laws of 1911, p. 198. defendant appeals from a judgment of the criminal court of J ackson county sentencing him to a term of three years in the penitentiary. The following' is a summary of the evidence.

During the months of December, 1912, and January, 1913, the defendant kept a rooming house in Kansas City, Missouri, which house he had operated for five years. A few doors from defendant’s .rooming-house was a jewelry store owned by one Louie Shaffer, in which store defendant was employed as an optician. In the same store was employed one Belle Shaffer, a sixteen-year-old sister of Louie Shaffer. Belle Shaffer testified that during the absence of her brother from the store defendant made love to her ; kissed her, made her some small presents, and asked her to marry him; that he told her that her brother was going to fail in business and he would take care of her.

That defendant requested her to go with him to a room on Union Avenue in Kansas City, where he would tell her an important secret about her brother’s jewelry business, and that having” gained her confidence she went with him as requested. That when they entered the room defendant locked the door and solicited her to have sexual intercourse with him; that she refused, and that he then threw her down, on a bed, put his head under her clothes and inserted his mouth into her private parts, keeping her in that position for about an hour. That .at his request she met him outside the store -almost every other day for a period of about two weeks, when they would go to his room and defendant would repeat this crime against nature. That defendant warned her that they would both be prosecuted if she told anyone what he had done.

In the month of July, 1913, Belle Shaffer informed her mother and brother Louie of defendant’s crime, and her brother took her to the prosecuting attorney’s office and procured a warrant for defendant. There was evidence that Belle Shaffer was afflicted with melancholy about five or six months after the commission of the alleged crime upon her by defendant, and that she acted as though she was losing her mind, but this evidence was withdrawn from the jury by instruction. There is no evidence that defendant and Belle Shaffer were ever seen together outside the jewelry store, except on one occasion when defendant accompanied her and his wife to a store and purchased each of them a coat. It does not clearly appear who paid for the coats. Belle Shaffer further testified that she did not know that defendant was married'; that in speaking to her about his wife he referred to his wife as his housekeeper.

Defendant, testifying in his own behalf, denied the crime, and denied that he ever attempted to wrong Belle Shaffer in any manner. He stated that Belle Shaffer knew that he was a married man when she was working in her brother’s store; that she sent his wife a box of candy in which there was a card directed to her as Mrs. Wellman. He .also introduced a certificate showing that he was duly married in Clay county, Missouri, in August, 1911, to Mrs. Mary Hull, the woman with whom he was living in January, 1913. Defendant also denied that he had committed adultery with his wife before they were married, but he admitted that she was a partner with him in his rooming house before their marriage. He also testified that he took her to Hot Spring's, Arkansas, when she was sick before they were married, and stated that they stopped at different hotels, and he sustained no-improper relations with her. Defendant also introduced one Ida Sours, a chambermaid who worked in his rooming house. She testified that immediately after defendant’s arrest Louie Shaffer came to see her and told her, in substance, that if defendant would “come across” with a few hundred dollars the case could be settled out of court, otherwise, defendant would have to stay in jail. That he (Shaffer) was broke and needed some money. It appears by other evidence that Louis Shaffer did go into bankruptcy in the month of January, 1913. Two witnesses testified that defendant’s general reputation for morality was bad; two others testified that it was good.

In rebuttal Louie Shaffer admitted that he called on Ida Sours, but denied that he told her that the case could be settled for a money consideration. He stated that he called on Ida Sours to see if he could secure her evidence ,as a witrfess for the State, and to learn from her the whereabouts of another witness.

Belle Shaffer was also recalled and denied sending the box of candy to defendant’s wife.

The prosecuting attorney offered to prove by the records in the Juvenile court of Kansas City that prior to her marriage to defendant Mrs. Wellman’s child was taken from her because she was living in adultery with defendant, but that evidence was rejected by the court.

I. For reversal defendant asserts that (1) the information does not charge the offense of which he was convicted; (2) that improper -evidence was admitted; (3) that the court erred in its instructions to the jury; and (4) that the assistant prosecuting attorney made improper and prejudicial remarks to and in the hearing of the jury.

We shall first consider the error of the trial court in refusing to arrest the judgment on account of the alleged insufficiency of the information. The law which defendant is charged with violating is section 4726, Revised Statutes 1909, which, as amended by the Laws of 1911, p. 198, reads as follows:

“Every person who shall be convicted of the detestable and abominable crime against nature, committed with mankind or with beast, with the sexual organs or with the mouth, shall be punished by imprisonment in the penitentiary not less than two years. ’ ’

The information, omitting caption, signature and verification, is as follows: '

“Now comes Floyd E. Jacobs, First Assistant Prosecuting Attorney for the State of Missouri, in and for the body of the county of Jackson, and upon his oath informs the court that Joseph "Wellman, whose Christian name in full is unknown to said First Assistant Prosecuting Attorney, late of the county aforesaid, on the ——- day of January, 1912, at the county of Jackson, State of Missouri, did then and there unlawfully and feloniously commit the detestable and abominable crime against nature by then and there having sexual intercourse with one Belle Shaffer with his mouth; against the peace and dignity of the State.”

Do the acts recited in the foregoing information constitute the detestable and abominable crime against nature? Some courts have said that this crime is so well understood that an indictment need not describe the acts by which it is committed. In Honselman v. People, 168 Ill. 172, l. c. 175, it was said:

“The Legislature has not seen fit to define it further than by the general term, and the records of the courts need not be defiled with the details of different acts which may go. to constitute it.”

The quoted language may be sound reasoning as applied to the crime as it existed at common law, but the General Assembly of Missouri added a material amendment to the law in 1911, extending the crime so that it may be committed with the mouth. It has been held in several jurisdictions that this latter method of committing the detestable crime against nature "is not embraced in the general term of crime against nature. [Harvey v. State, 55 Tex. Crim. 199, and People v. Boyle, 116 Cal. 658.] It is apparent that the General Assembly intended to expand the meaning of the words “detestable and abominable crime against: nature” by the amendment of 1911, supra, and we .are convinced that under this new statute it is necessary to designate, at least in a general way, the acts by which the crime is committed. It is to be regretted that the public records of our State should be contaminated with the details of such loathsome crimes, but it is difficult for the writer to bring himself to understand how section 22, article 2, Constitution of Missouri, prescribing that the accused may demand “the nature and cause of-the accusation against him,” can be materially modified or suspended. The criminal acts which a defendant is called upon to meet must be described, with reasonable certainty. [State v. Murphy, 141 Mo. 267.]

The indictment in this case charges that defendant committed the detestable and abominable crime against nature ‘by then and there having sexual intercourse with one Belle Shaffer with his mouth.” The words “sexual intercourse” have a well-defined meaning', both in law and common usage. They have been judicially defined to mean “the actual contact of the sexual organs of a man and a. woman, and an actual penetration into the body of the latter.” [35 Cyc. 1450; and State v. Frazier, 54 Kan. l. c. 725.] We have searched in vain for other definitions of the words ‘ ‘ sexual intercourse, ’ ’ and while we think they might reasonably be expanded to cover a lustful contact between the sexual organs of mankind with the sexual organs of beasts, accompanied by penetration, they cannot be held to embrace a contact between the sexual organs of one person and the-nonsexual organs of another.

An examination, of the information shows that it charges the defendant with committing the crime against nature by an ordinary act of coition in the natural way, and, of course, that part of the information is grossly repugnant to the main charge. We are aware that under our criminal Statute of Jeofails, section 5115, Revised Statutes 1909, repugnant allegations in indictments may be rejected as surplusage, but the difficulty in rejecting the repugnant clause in this information, to-wit, “by then and there having sexual intercourse with one Belle Shaffer,” is that the information would be left without the name or any detscription of the party upon whom the alleged crime was committed; so that the Statute of Jeofails cannot aid the State in sustaining this conviction.

The information in this case presents a similar situation to- the one which arose in the case of State v. Leonard, 171 Mo. 622. In the Leonard case an attempt was made to charge the defendant with having in his possession a forged railroad ticket. The indictment showed .on its face that the railroad ticket found in the possession of Leonard was not such a forged instrument as came within the purview of the statute, and it was held that the recital in the indictment of facts showing that a. forgery had’ not been committed could not be rejected as surplusage. In that case the court, speaking through Fox, J., said:

“If the State admits in her pleading a state of facts which shows that the defendant cannot be convicted of the offense charged, then, and in that case, he ought not to be put upon trial for such alleged offense. As' an example, if the counsel representing the State should, when the case is called for trial, ¡announce' in open court that some material fact necessary to the conviction of the defendant does not in fact exist and would be unable to. prove it, would the court, upon this admission, put the defendant upon his trial, or would it suggest the dismissal of the case ? . . . "While it is discretionary with the court as to sustaining the motion to quash, there is one .of three 'things it should have done. It should have, at the close of the State’s case, instructed the jury that, under the indictment ¡and evidence in this cause, they should find defendant not guilty, or this instruction should have been given at the close of the entire case, or it should have sustained the motion in arrest of judgment.”

As this case must be remanded for a new trial, the information should be amended so as to conform to the evidence of the prosecutrix, by Specifically charging that defendant unlawfully and feloniously committed the detestable and abominable crime against nature upon one Belle Shaffer, a female human being, by then ■and there inserting his mouth into the sexual organs and private parts of her, the said Belle Shaffer, against, etc.

II. The appellant’s attorneys strenuously insist that the court erred in admitting improper evidence.

There was some improper evidence admitted, but the record shows that' much of this improper testimony was only objected to after it was admitted; and as to some of it the defendant merely objected to its introduction without designating any reason why it should not be admitted. We have often announced the rule that the only proper way to secure the exclusion of evidence is by specific timely objection, pointing out the reasons why it should not be received. [State v. Pyles, 206 Mo. l. c. 632, and State v. Crone, 209 Mo. 316, l. c. 330.]

IÍI. As the case must be remanded for a new trial, we will call attention to one erroneous view expressed by the trial court in regard to the evidence of Jacob Fromson. Fromson was ashed if defendant had the reputation of committing the class of crimes for which he was then on trial, pbc trial court ruled that this character of evidence- was admissible, and announced that the Supreme Court had so construed the law. The cases of State v. Beckner, 194 Mo. 281; State v. Pollard, 174 Mo. 607, and State v. Shields, 13 Mo. 236, are cited by the Attorney-General as tending to sustain the views of the trial judge above noted. Those cases merely go to the extent of holding that the bad reputation of defendant for morality and chastity may be shown to discredit his testimony, notwithstanding he be on trial for violating some law which affects the public morals. Those cases also sustain the well-known proposition that evidence regarding the reputation of defendant must be confined to his general reputation for morality, and cannot single out his propensity or reputation for violating some particular law.

To sustain the view announced by the Honorable Trial Judge would lead to the admission of evidence of independent crimes not connected with the one for which a defendant is on trial and not tending to establish motive; and, would in effect, amount to trying him for crimes not designated in the indictment. This would be a plain violation of section 22, article 2, of the Constitution. [State v. Spray, 174 Mo. 569, and State v. Teeter, 239 Mo. 475.] It is contended that the Kansas City Court of Appeals in the case of State v. Oliphant, 128 Mo. App. 252, announced a different rule, but in so far as the doctrine of that case is in conflict with this decision it is overruled.

There was throughout the trial a labored effort by the assistant prosecuting attorney to prove by rumor or common report that defendant had committed the crime against nature upon a woman by the name of Eromson, who was alive at the time of the trial but not called as a witness. There, was also an effort to prove by the same class of testimony that defendant had been guilty of the specific crime of .adultery. All this was improper. Such evidence, in addition to being an effort to prove independent crimes not in any way connected with the offense for which defendant was on trial, was a plain violation of that part of the Constitution which ordains that a defendant has the right “to meet the witnesses against him face to face.” No one could meet a mere rumor face to face. The only exception to this rule seems to be in the case of dying declarations.

These observations are made to point the way for the retrial of this case in accordance with the Constitution and laws of the State.

IV. In his brief appellant contends that the trial court erred in failing to instruct the jury that the prosecutrix must be corroborated. This upon the theory that she consented to the commission upon her of the crime against nature, if such crime wa,s committed. This point is ruled against appellant because not specifically assigned in his motion for new trial. [State v. Conway, 241 Mo. 271; State v. Dockery, 243 Mo. l. c. 599; State v. Chissell, 245 Mo. l. c. 554-5; State v. Horton, 247 Mo. l. c. 663.]

V. This brings us to the alleged improper con-°f tiie assistant prosecuting attorney. In his argument to the jury the following ocoarred;

“Is he.the kind of .a man that.would do it? Did he come in here with a clean record, or does he come in here blackened, as he should be? A man who. lived in adultery on Union Avenue!

“MR. GORDON: We object to that. There is no evidence of that.

“MR. CURTIN: I say that Dr. Mathis, the Juvenile Officer, told you what kind of a man he was. I say Fromson told you what kind of a man he was. What did Fromson base his opinion upon? The confession of his wife, who was then the daughter of this man.

“MR;GORDON: We object to the statement that the defendant and his wife lived in adultery. There is ho evidence to that effect. Slave our exception to the failure of the court to rule upon it.

“MR. CURTIN (continuing): Let us see if this man got this girl’s confidence. She says she was working in her brother’s store. This defendant was working there with her. He made love to her and told her he would marry her, although at that time he was living with a harlot—

“MR. OWEN: We object to that. There is no testimony—

“MR. CURTIN: I say there is, and I object to you butting in. I say the record of the juvenile court shows that this child was taken away from him because he was living with this woman in adultery — .

‘ ‘ THE COURT: His general reputation was admitted, but the other was withdrawn. ’ ’

The record does not show that defendant lived in adultery with his wife, whose name was Mary Hull, before they were married. The State attempted to prove the charge of adultery by the record of a suit in the juvenile court, to which suit the defendant was not a party, but that evidence was excluded. The defendant denied having lived in adultery, and introduced a marriage record showing that he was lawfully married to his wife (the woman referred to by the prosecutor) about a year and a half before the date of the alleged crime upon Belle Shaffer.

The trial court having failed to rule upon the improper remarks of the prosecuting attorney in regard to the alleged adultery, he was emboldened to go still further out of the record and charged defendant with living with a harlot at the very time he is accused of committing this abominable crime against nature. There is not a word in the record showing any improper conduct on the part .of Mrs. Wellman after her marriage to defendant in August, 1911. On the contrary, the record shows that they were living in lawful wedlock. The last remark brought a mild criticism from the trial judge, but no admonition to the prosecutor to confine himself to the record. The remarks before quoted were not warranted by the evidence, and were highly prejudicial to defendant.

During the trial of the case the assistant prosecutor, over defendant’s protest, several times, denounced defendant’s witness Ida Sours as a prostitute. Her reputation was not then in issue, and there was not the least excuse for the prosecutor’s vitriolic epithets. After Ida Sours testified and her veracity and chastity might have been placed in issue, not one word of evidence was offered by the State to show that her reputation was bad in any respect. Yet,, notwithstanding there was no evidence to throw discredit on her testimony, the prosecutor in his closing argument deinounced her as a woman wholly unworthy of belief, and again insinuated that she wqs a prostitute. It is true that these latter remarks were not objected to, and we can disregard them if we choose, but they tend to establish the fact that the public prosecutor conducted this case without any regard to the rules of law or common fairness. Louie Shaffer testified that he caused this prosecution to be instituted, and stated that he called on Ida Sours, hoping he could secure her evidence for the State, but when it developed that her evidence was favorable to defendant she was at once denounced as wholly unworthy of belief. We regret to say that the record in this case and in the case of State v. Arthur Brown, 247 Ma 715, tend to indicate that in Jackson county when any witness refuses to testify for the State he or she is promptly denounced as a criminal by the public prosecutors of that county, regardless of whether there is any evidence of wrongdoing on the part of such witness.

If the defendant had been duly convicted of the crime of adultery, and the record of his conviction had been admitted in evidence, he would have been entitled to an instruction to the effect that the jury could only consider his conviction as tending to discr edit his testimony as a witness, and not as tending to prove him guilty of the crime for which he was then on trial, and the public prosecutor could not legally have referred to the conviction of adultery as evidence of his guilt of the crime against nature. [State v. Phillips, 233 Mo. 299, l. c. 306; State v. Jones, 249 Mo. 80, l. c. 98; Taylor v. State, 50 Tex. Crim. 560; State v. McNamara, 212 Mo. 150, 12 Cyc. 415.] Such an argument would have been a mere invitation to¡ the jury to disregard the law. Evidence of bad character on the part of defendant was not evidence of his guilt, but in this case was admitted solely to impeach and discredit his testimony as a witness. When he does not testify or otherwise place his reputation in issue, such evidence cannot be admitted. [State v. Beckner, 194 Mo. 281.] The prosecutor should never be allowed to appeal to the jury to convict the defendant because he has committed some other crime not in any way connected with the one for which he is being tried, or because his reputation is bad. A defendant who testifies in his own behalf in a criminal .case occupies a dual role. In one role he is a witness, in the other a defendant. [State v. Beckner, 194 Mo. 281; State v. Phillips, 233 Mo. 299.]

The defendant is charged with a loathsome crime, but the courts should, nevertheless, accord him a fair trial according to the Constitution and usages of law.

Prosecutors should be zealous in their efforts to enforce the criminal laws, but this does not mean that they are either required or authorized to override the Constitution and thus become lawbreaikers themselves in order to secure convictions.

For the misconduct of the assistant prosecuting attorney and the invalidity of the information the judgment is reversed and the cause remanded for a new trial.

Wother, J., concurs; Farris, J., concurs in all of opinion except paragraph one, as to which he is dubitcmte.