author: BROWN, C. PER OURIAM:

text:
    In re ESTATE of SAMUEL CUPPLES; MAUDE CUPPLES SCUDDER, GLADYS CUPPLES SCUDDER and MARTHA CUPPLES OVERALL v. EDWARD KOELN, Collector of the Revenue, Appellant.
    Division One,
    December 3, 1917.
    1. INHERITANCE TAX: Children of Adopted Child. The words “legally adopted children” found in See. 309, R. S. 1909, providing that “all property which shall pass by will, or by the intestate laws of this State, other than to or for the use of the father, mother, husband, wife, legally adopted children, or direct lineal descendants of the testator, shall be and is subject to the payment of a collateral inheritance tax,” was intended by the Legislature to except from the tax, not only legally adopted children, but the . descendants of such children, and the tax cannot be assessed upon bequests to such descendants.
    2. -: -: Words of Limitation. The words “legally adopted children,” used in the Collateral Inheritance Tax Act, are not words of limitation, used for the purpose of excluding them from the classification of natural children, but were meant to place them in the same class as the natural children of testator or intestate, and the children of such “legally adopted children” in the same class with his “direct lineal descendants.”
    3. -: Construction of Statute. A collateral inheritance tax must be imposed in clear and unambiguous words, and exceptions will be liberally construed in connection with the whole body of the law upon the subject of which it treats.
    4. -: -: Kindred Statutes. The Collateral Inheritance Tax Statute, in a proceeding to assess the tax against children of testator’s legally adopted child, will be construed in connection with the statutes relating to the adoption of children and those regulating descents and distributions of estates of decedents, upon which it depends largely for its operation, and is, to that extent, a part.
    5. -: -: -: Children of Adopted Child: Heir: Classified as Natural Children. The statute relating to the adoption of children (Sec. 1671, R. S. 1909) makes a child legally adopted by deed an heir of the adopting parent, with all' the incidents of that relation, including the incident of the transmission of the inheritance upon the death of such child; and the Statute of Descents and Distributions (Sec. 332, R. S. 1909) makes no distinction between such an adopted child and a child by birth, but includes the adopted child in the general designation of children, and his or her descendants in the general designation of the descendants of children.
    6. -: -: Descendant. The word “descendant” used in the statute declaring that a collateral inheritance tax cannot be imposed on the “direct lineal descendant of the testator” includes the lineal descendants of testator’s legally adopted child, and cannot be limited to its common law definition, since that has, as has the definition of the word “child,” been enlarged by statute to include persons who did not fall within that definition.
    7. -: Collateral Kindred: Title to Act. Neither am adopted daughter nor her children are collateral inheritors, but direct heirs. The title of the act being “an Act to tax collateral inheritances, legacies, gifts and conveyances in certain cases,” and as under the Constitution the subject of the act must be clearly expressed in its title, the act cannot be held to impose a tax on a legally adopted daughter or her children, who, by -the statutes relating to the adoption of children by deed and the statutes relating to descents and distributions, are not collateral -inheritors, but, for purposes of inheritance, are “direct legal descendants” of the adopting parent.
    Appeal from St. Louis City Circuit Court. — Hon. Thomas L. Anderson, Judge.
    Affirmed.

      Orville M. Barnett and Ernest A. Green for appellant.
    (1) Respondents herein, as the daughters of Mrs; Scudder, are not exempt from Missouri inheritance tax by reason of the fact that they are children of an adopted child of testator. In order for the children of Mrs. Seudder to he exempt from an inheritance tax they must come within one of the following classes: First, legally adopted children of Samuel Cupples; or, second, direct lineal descendants of Samuel Cupples. (2) The mere fact that the Scudder children were daughters of an adopted child does not make them “adopted children” and, a fortiori, does not make them the “legally adopted, children” refered to in Sec. 309, R. S; 1909. Clarkson v. Hatton, 143 Mo. 55; Hockaday v; Lynn, 200 Mo. 461; Beach v. Bryan, 155 Mo. App. 50; Sarazen y. Railway Co., 153 Mo. 485. As Samuel Cupples neither complied with the statute of adoption with reference to the Scudder children, nor even attempted to do so, it cannot be seriously contended that they come within the term “legally adopted children.” (3) The Scudder children by virtue of Mr. Cupples’s adoption of their mother are not “direct lineal descendants” of .Mr. Cupples. Mrs. Scudder is not a lineal descendant of Mr. Cupples. 1 Cyc. 934; Hockaday v. Lynn, 200 Mo. 456; Reinders v. Koppelmann, 68 Mo. 496; 2 Bouvier, p. 260; Walker v. Walker, 25 Ga, 429. Lineal descendants of a person have a general right of inheritance both from the lineal ancestor and from his col-laterals ; on the other hand, an adopted child is uniformly held to be unable to inherit from the collateral kindred of its adopted parents, the ancestors of such parents or the natural children of such parents. Merritt v. Morton, 143 Ky. 133; Van Matre v. Sankey, 148 111. 536; Meader v. Archer, 65 N. IT. 214; Phillips v. McComca, 59 Ohio St. 1; Sunderland’s Estate, 60 Iowa, 732; Helms v. Elliott, 89 Tenn. 446.

      John H. Overall for respondents; Frederick N. Jndson, of counsel.
    (1) A child adopted in compliance with the statutes will inherit the property of the adopting parent the same as if born of such adopting parent in wedlock. Secs. 1671, 1673, R. S. 1909; Posburg v. Rogers,114 Mo. 122; Moran v. Stewart, 122 Mo. 295; Hockaday v. Lynn, 200 Mo. 456. (2) The children of an adopted child inherit the property of the adapting parent the same as if they are his natural grandchildren. Bernero v. Goodwin, 267 Mo. 427 Healey v. Simpson, 113 Mo. 340; Power v. Hatley, 85 Ky. 671; Atchison v. Atchison, 89 Ky. 488; Gray v. Holmes, 57 Kan. 217; Pace v. Klink, 51 Ga. 220; Humphries, v. Davis, 100 Ind. 274. (3) Section 309 exempts from its provisions legally adopted children and direct lineal descendants, (a) The' term “legally adopted children” includes the children of such. Estate of Williams, 62 Mo. App. 349 (cited with approval in Johnson v. Autriker, 205 Mo. 247); Humphries v. Davis, 100 Ind. 274. (b) The term “direct lineal descendants,” includes the children of an adopted child; they are in line of descent through command of the statute the -same as if that line had been established by nature. We thus distinguish between lineal descendants by birth and statutory lineal descendants. Bernero v. Goodwin, 267 Mo. 427; In re Matter of Cook, 187 N. Y. 261; Webb’s Estate, 250 Pa. St. 179; Sec. 332, R. S. 1909; Fosburg v. Rogers, 114 Mo. 122; 25 Cyc. 1442; Levi v. McCarten, 31 U. S. 102; Estate of Winchester, 140 Cal. 469; Warren v. Prdscott, 84 Me. 483; Walker v. Walker, 25 Ga. 429; In re Woolworth’s Estate, 85 Yt. 322. (4) The collateral inheritance tax, since it imposes a special burden upon particular persons and property and is not in any proper sense a general tax, should be strictly construed in favor of the citizen. Eidman v. Martinez, 184 U. S. 578; Matter of Enston, 113 N. Y. 174; In re Stewart, 131 N. Y. 27; 27 Eney. Law, p. 340; Blakemore & Bancroft on Inheritance Taxes, sec. 241; In re Starbuck’s Estate, 116 N. Y. Supp. 1030; Matter of Mergentine, 129 App. Div. (N. Y.) 367; English’s Estate v. Crenshaw, 120 Tenn. 531.
   BROWN, C.

This is a proceeding begun in the probate court for the city of St. Louis for the assessment of the collateral inheritance tax against the interest of the three respondents in the estate devised and bequeathed to them by Samuel Cupples, deceased. The amount of the interest of each was found to be $172, 253.96, and the tax demanded against each was $8,612.70. The probate court held these testamentary interests to be exempt from such taxation. The matter was appealed by the respondents to the circuit court for the city of St. Louis, where the action of the probate court was reversed, and judgment entered accordingly. A motion for a new trial was sustained, and the collector has appealed to this court from that order.

The facts are that in 1871 Samuel Cupples and wife adopted by deed made in accordance with the statute of this State in such catses, Amelia Ross Lowman (who had come to them as a child in 1868), with the consent of her parents evidenced by their joining in the deed. The child’s name was changed from Lowman to"Cupples and she grew up in the Cupples family, was married in 1885 to William H. Scudder, Jr., and became the mother of the three respondents, who lived in the Cupples. family. Mr. Cupples characterized Mrs. Scudder in his will as my beloved daughter, and made an affidavit in which he stated that she had “always been our dutiful, obedient and affectionate daughter.”

The income of the trust property only was to be paid to the beneficiaries during the first four years of the trust, and then one-fourth of the principal each year until all should be paid. All payments of principal and interest were to be contingent upon the benficiary being alive art the time of the distribution — otherwise the share to go elsewhere.

The question presented is whether or not the children of an adopted child of the' testator are required to pay the collateral inheritance tax imposed by Section 309, Revised Statutes 1909, upon their respective legacies. The provisions of that section applicable are the following: “All property which shall pass by will, or by the intestate laws of this State . . . other than to or for the use of the father, mother, husband, wife, legally adopted children, or direct lineal descendant of the testator . . . shall be and is subject to the' payment of a collateral inheritance tax of five dollars for each and every one hundred dollars of the clear market value of such property, and at and after the same rate for every less amount, to be paid to the collector of revenue of the proper county, and for the purpose of this article, the city of St. Louis shall be affected through its corresponding officers as if it were a county.” The question depends entirely upon the legislative purpose in using the words “legally adopted children” in the provision quoted. If they were used for the purpose of making plain the intention that legally adopted children were to be classified with natural children of the testator or intestate in respect of their rights under the statutes of descents and distributions, then it is plain, as we shall presently see more clearly, that their descendants would come within the description of descendants of their adopted parent. If, on the other hand, these words were used as words of limitation, for the purpose of excluding them from that description, by the mention of their adopted parent, a contrary result would follow. In the consideration of that question we will be aided by certain general principles, too well settled to be open to discussion.

The Collateral Inheritance Ta;x Statute is not a general revenue law founded upon the provision of the State Constitution requiring that taxation shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, but “is a bonus or duty levied upon the right or privilege of the devisee, heir or distributee, for receiving his share.” [State er rel. v. Henderson, 160 Mo. 190, l. c. 215; State ex rel. v. Switzler, 143 Mo. l. c. 329; In re Remme’s Estate, Maguire v. University, 271 Mo. l. c. 363.] Such taxation must be imposed in clear and unambiguous terms, and exceptions will be liberally construed in connection with the whole body of the law upon the subject of which it treats. [Blakemore & Bancroft on Inheritance Taxes, sec. 241; 27 Am. & Eng. Ency. Law, 340; Eidman v. Martinez, 184 U. S. 578; Matter of Enston, 113 N. Y. 174; In re Starbuck’s Est., 116 N. Y. S. 1030.] This leads us to an examination of the statutes relating to the adoption of children, as well as to those regulating descents and distributions of the estates of decedents, upon which it depends largely for its operation, and is, to that extent, a part.

The statute authorizing the adoption of children rests upon an element in the human character which manifests itself in the desire for children; — for some one to nurture and cherish as one’s own flesh and blood, and to make return for such offices by bringing affection and comfort to one’s old age. This is well illustrated in the case at bar. The three children by birth of the testator died in childhood, and the adopted child took their place and filled it so well that nearly forty years afterward he wrote of her in his will as his beloved daughter and took occasion in an affidavit, made for that purpose, to testify to her filial virtues. It is plain that such' benefits are ill requited by a. system which would make no provision for her children and would leave them at the mercy of an accident of intestacy.

The first section of the statute under which she was adopted (R. S. 1909, sec. 1671) is as follows: “If any person in this State shall desire to adopt any child or children as his or her heir, it shall be lawful for such person to do the same by deed, which deed shall be executed and acknowledged by the person adopting such, child or children and recorded in the county of the residence of the person executing the same, as in the case, of conveyance of real estate.” It is to be noted that under this section he adopted the “child” as his own “heir.” These words have a broad meaning and include, under the Statute of Descents and Distributions then and now in force, the transmission of the faculty of inheritance by her death. That this is true has become the settled doctrine of this court. [Williams v. Rollins, 271 Mo. 150; Bernero v. Goodwin, 267. Mo. 427.] The next section imposes upon the adopting parent the duty and upon the child the right to the nurture, treatment and protection of a daughter by birth. The Statute of Descents and Distributions made no distinction between her and a child by birth, but included her in the general designation of children, and her descendants in the general designation of the descendants of children. [R. S. 1909, sec. 332.]

As this court said in State ex rel. v. Henderson, supra, “the right of the Legislature to prescribe the right of descent and inheritance cannot be doubted. It is not a natural right.” The word heir, “in its strict and technical import applies to the person or persons appointed by law to succeed to the estate in case of intestacy.” [Bouv., Law Dict., Title, Heir, and cases cited.] Hpon the execution of the deed of adoption the child became a person appointed by law to receive a child’s share of the estate in case of intestacy. For all purposes of inheritance from the adopting parent the adopted child is a statutory descendant of the adopting parent. It is upon this principle that the words “children and their descendants,” as used in the Statute of Descents and Distributions, have been held by us to include adopted children and their descendants. It is the plain intent of -the Legislature that the intervention of the child by adoption does not break the course of descent from the ancestor.

That the use of the word “children” in a will may, and whenever the intention of the testator seems to indicate it does include the descendants of a deceased child, has long been the settled doctrine of this court. [Peak v. Peak; 195 S. W. 993, and cases cited.] One of the cases so cited (Guitar v. Gordon, 17 Mo. 408) is interesting on this question.

The particular words used in the exception in the collateral inheritance táx státute, and which we must construe here, are as follows: “Other than to or for the use of the father, mother, husband, wife, legally adopted children, or direct lineal descendant of the testator. ’ ’ A learned and ingenious argument is made by the appellant upon the technical meaning of the word “descendant” in the above clause, the common law definition of which includes only those proceeding in direct line by birth from the ancestor. This becomes unimportant when we consider that the same play was once made, upon the definition of the words “child” and “children.” The common-law definition of “child” in its connection with the right to inherit, only included those begotten of the bodies of persons in lawful wedlock. The meaning of this word has been so modified by statute as to include those legally adopted by persons married or unmarried. The same legislative power that made this change may include in the designation of the descendants those heirs in the line passing through the newly erected child and heir. In fact the word descendant, when applied to inheritance, includes those and those only who take by the law of descents in the descending line. Like the word “children,” it must bow to its own statutory definition.

The title of this act so far as it relates to the matter in issue here is as follows: “An act to tax collateral inheritances, legacies, gifts and conveyances in certain cases.” That the subject of the act must be clearly expressed in its title is certain, and it seems equally certain that neither the adopted child nor her children come within the description of collateral inheritors. In Estate of Winchester, 140 Cal. 469, the Supreme Court of that State said: “The act under which the taxes were imposed by the court below in its title relates to ‘collateral inheritances, bequests and devises’ only, and under the provisions of the Constitution its effect must be limited to the subjects just described. This would exclude successions or bequests to children and grandchildren, whether adopted or not, for clearly they are not collateral, but in a direct line.”

. It is unnecessary to further discuss the question from this standpoint. We have only referred to it to direct attention to the controlling effect of the provision of the Statute of Descents and Distributions in the interpretation of the statute under consideration. The law of inheritance is the creature of this statute, and the taxation of inheritances is founded upon it, and the description of the inheritance to which it applies or does not apply must necessarily stand upon that foundation and be interpreted from that standpoint. Of itself it creates no inheritance. When adopted children were made heirs under the designation of children, no change in the law of descents became necessary, but these children took their place automatically by that name in the descending line and they and their descendants have ever since inherited in that line from the adopting ancestors. [Fosburgh v. Rogers, 114 Mo. 122; Hockaday v. Lynn, 200 Mo. 456.]

Had the taxing statute omitted all reference to adopted children and exempted only the “direct lineal descendants of the testator,” its effect would be plain. •The Statute of Adoption places the adopted child next in the line of descent from the ancestor, of whom, for the purpose of inheritance, he becomes the child and heir, with all the incidents of those relations, including the incident of transmission of the inheritance by his death, and the children of the adopted one would stand in the same line of descent as their parent. Thus far the. question has been firmly settled by- the Williams and Bernero cases, supra; but it is contended by appellant that the- mention of adopted children in the tax law excludes all other_ inheritors under the adoption law.

To charge these grandchildren with this special tax requires that the legislative intention so to do should be plainly expressed, and in ascertaining the intention of the Legislature the same simple rules of construction are applicable which we applied in the Williams and Bernero eases. The word children may, whenever reason requires it, be construed to include their descendants. We think that rule is peculiarly applicable in this case. All the reasons which may be given for the exception of the adopted daughter seem- to us to be applicable to her children, and a fair view of the clause we have quoted on which our decision depends indicates to our mind that “legally adopted children” were mentioned, not with a view to deprive their children of any advantage to which they would be entitled were the words “legally adopted” omitted, but were inserted.for the opposite purposes of indicating that legally adopted children were not to be omitted from the category of descendants. [Estate of Winchester, supra; Matter of Cook, 187 N. Y. l. c. 261.]

These two eases are squarely in point here. Both were proceedings for the collection of collateral inheritance taxes under statutes similar to our own. The New York statute provided that when the legacy was “for the use of any . . . child ... or any child or children adopted as such ... or to any lineal descendant of such decedent born in lawful wedlock” it should be exempt from taxation.

The California statute exempted property going “to or for the use of . . . lawful issue ... or any child or children adopted as such . . . and lineal descendant of such deceased born in lawful wedlock.” The exception was held to apply to children of the adopted child in both cases. Under our own statute we have reached the same conclusion.

For the reasons stated the order sustaining the motion for a new trial is affirmed.

Bailey, G., concurs.

PER OURIAM:

The foregoing opinion of Brown, C., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    THE STATE v. PALLAS WEBER, Appellant.
    Division Two,
    December 4, 1917.

    1. CONTINUANCE: Due Diligence. The showing of due diligence on the part of the applicant bears an important. part in determining his right to a continuance. Where defendant, after he had learned that a notary public in a near-by State, employed by him for the purpose, had refused to take the deposition of an absent witness, still had ten days before the day already set for the trial in which to take the deposition and made no further attempt to take it, the court did not abuse its discretion in refusing a continuance.
    2. AGE OE PROSECUTRIX: Contradictory Evidence by Hér: Party to Action. The prosecutrix testified that at the time of the trial, which occurred April 10,1917, she was sixteen years of age, and that the act of sexual intercourse occurred February 10, 1916. On cross-examination she testified that she was born on July 9, 1901, and that she was fifteen years old in 1915. Held, that, her testimony being contradictory on the issue of whether she was between the age of fifteen and eighteen years at the time the act was committed, the question of her age was for the jury. The rule, that where one of the parties to the suit testifies to facts against interest he is bound by such admissions unless avoided by contrary satisfactory evidence given by himself, has no application to the conflicting testimony of a witness not a party to the suit, and consequently no application to the said testimony of prosecutrix.
    3. EVIDENCE: Statutory Rape:. Inference from Witness’s Refusal to Criminate Himself. No inference of the existence of the incrimi- ' nating fact is permitted to be drawn from the witness’s claim of his constitutional right to refuse to answer, and therefore the witness’s claim of the privilege is not a proper matter of evidence for the jury’s consideration. Where Waddle was absent from the State at the date of defendant’s trial for statutory rape of a girl between the ages of fifteen and eighteen years and of previous chaste character, it was not error to exclude the testimony of the justice of the peace to the effect that at the preliminary hearing said Waddle was a witness and on being asked if he had had sexual intercourse with prosecutrix he refused to answer on the ground that his answer would incriminate him.
    4. -} --: Chaste Character: Prior Acts of Sexual Intercourse. In a prosecution of a defendant for carnal knowledge of a girl between the ages of fifteen and eighteen years and of previous chaste' character, testimony of prior acts of sexual intercourse with other men is proper, but subsequent acts with them are not material on the question of her previous chaste character or of defendant’s guilt.
    Appeal from Christian Circuit Court. — Hon. Fred Stewart, Judge.
    Affirmed.

      Barrett & Moore for appellant.
    (1) The court should have sustained the demurrer filed at the close of the State’s evidence and at the close of all the evidence. State v. Dauhert, 42 Mo. 242; State v. Warner, 74 Mo. 83; State v. Bass, 251 Mo. 107. The evidence conclusively shows that when the injured party first had sexual intercourse with defendant, if at all, she was not of previous chaste character and not between the ages of fifteen and eighteen years. R. S. 1909, sec. 4472; State v. Arnold, 267 Mo. 33; State v. Ghent, 238 Mo. 429; State v. Henderson, 243 Mo. 509. (2) Defendant should have been allowed to prove what the witness Lawrence Waddle testified to in the preliminary examination as such witness testified before the examining magistrate, and was out of the jurisdiction of the circuit court at the time of trial. State v. Able, 65 Mo. 367; State v. Eastham, 240 Mo. 241; State v. Butler, 247 Mo. 693. (3) Under the showing made, the court should have sustained defendant’s application for continuance and in overruling same the discretion granted trial courts was used to the prejudice of this defendant. State v. Hesterly, 182 Mo. 16; State v. Lewis, 74 Mo. 222; State v. Dewitt, 152 Mo. 76; R. S. 1909, secs. 5203, 5204. (3) The court erred in sustaining the objection to the .question asked witness, as to whether she had ever had intercourse with any other man except Weber as such question was to ascertain as to her previous chaste character, which is one of the elements of the offense charged that the State must establish beyond a reasonable doubt. State v. Wheeler, 94 Mo. 252; State v. Patterson, 88 Mo. 88.

      Frank W. McAllister, Attorney-General, and Shrader P. Howell, Assistant Attorney-General, for the State.
    (1) An application for continuance is addressed to the sound discretion of the court, with- the exercise of which an appellate court will not interfere unless it clearly appears that such discretion has been abused to the prejudice of appellant. State v. Sassaman, 214 Mo. 735; State v. Cummins, 189 Mo. 640; State v. Cain, 247 Mo. 704; State v. Richardson, 194 Mo. 240. (2) The action of the court in refusing to admit the testimony of Z. Acuff as to certain answers made by the absent witness, Waddle, at the preliminary hearing, was proper under the circumstances in this case. State v. Riddle, 179 Mo. 297; State v. Butler, 247 Mo. 685. Furthermore, acts of unchastity after the commission of the offense charged are inadmissible. State v. Knock, 142 Mo. 515; State v. Day, 188 Mo. 359; State v. Perrigin, 258 Mo. 233. (3) The prosecutrix is competent to testify as to her own age, subject to cross-examination. State v. Marshall, 137 Mo. 466; State v. Evans, 138 Mo. 121; State v. Congat, 121 Mo. 463.
   WILLIAMS, J.

Upon an information charging him with the crime of statutory rape upon an unmarried' female of previous chaste character between the ages of fifteen and eighteen years, defendant was tried in the circuit court of Christian County, found guilty, and his punishment assessed at two years in the penitentiary. Defendant duly appealed.

Evidence upon the part of the State tends to establish the following facts:

The prosecutrix, then living with her parents near Ozark, Missouri, began keeping company with the. defendant in November, 1915. The first act of sexual- in-intercourse occurred about February 10, 1916; prior to this act the defendant told the prosecutrix that he was twenty years old.

The trial of this case was held April 10, 1917. Upon the examination in chief of the prosecutrix the fob lowing occurred:

<£Q. How old are you? A. Sixteen.”

Upon cross-examination of the prosecutrix the following occurred:

<£Q. What year were you born? A. 1901.
££Q. What day and month? A.' July 9th.
££Q. 1901? A. 1901.
££Q. In the year 1915 how old were you? A. Fifteen years old.
££Q. Fifteen years old in the year of 1915? A. Yes, sir.”

Prosecutrix gave birth to a child January 2, 1917, and she testified that the defendant was its father.

Some time after the preliminary hearing prosecutrix had a conversation with the defendant, in which the defendant in substance said .that prosecutrix could clear him if she wanted to; that she could £ £ get up there and not sa y anything; ’ ’ and that if she did not clear him he would go to the penitentiary. Defendant also told prosecutrix that the reason he could not take the prosecutrix as 'his wife was because he was not able; but he promised to help support the child.

There was evidence tending to show that the reputation of prosecutrix with reference to chastity, and virtue prior to February 10, 1916, was good.

The defendant’s evidence was substantially as follows:

Defendant testifying in his own behalf stated that in the conversation mentioned as occurring between him and-the prosecutrix the prosecutrix said “that she did not lay the blame altogether on me, and I asked her who, and she said "Waddle, and that Waddle was the father of the child.” He did not testify as to whether he had or had not had sexual intercourse with the .p-rossecutrix.

The defendant offered as a witness Z. Acuff, justice of the peace, and offered to prove by him that at the preliminary hearing, held before the witness, one Lawrence Waddle (then a witness at the preliminary hearing, but who at the time of this trial was out of the State) was asked whether or not, prior to February 10, 1916, he had had sexual intercourse with the prosecutrix, and that éaid witness refused to answer on the ground that it would incriminate him. This offer was excluded by the court.

One of defendant’s witnesses testified that one evening, in the winter of 1915, the prosecutrix was visiting at the home of a girl in the neighborhood. The witness and Waddle called to see the young ladies — Waddle calling to see the prosecutrix; that about ten o’clock at night the Waddle boy and the prosecutrix went outside the house and remained about thirty minutes. The witness remained in the house, but said he could hear knocking outside of the house, “like a couple of horses out in the barn kicking, but it was at the side of the-wall,” and that he thought the noise was made by Waddle and the prosecutrix.

I. Appellant contends that the court erred in overruling his application for a continuance. The record discloses that on the day the case was first set for trial, to-wit, on February 27, 1917, defendant filed an application for a continuance on the ground that a material witness, one Lawrence Waddle, had recently left the State-and was then in Oklahoma. The court denied the application for a continuance, but of. its own motion continued and reset the cause for trial on April 10, 1917. On this latter date defendant again filed a motion for a continuance, alleging as a ground the absence of this same witness. In his second motion defendant alleged that on March 27, 1917, he located witness Waddle at Sand Springs, Oklahoma, and on said date sent proper commission and interrogatories to a notary public in Oklahoma for the purpose of taking the deposition of said witness on April 3, 1917; that on the 29th day of March, 1917, the officer who had been thus commissioned, arbitrarily returned said papers to the defendant’s attorney and refused to act in the premises, the returned papers having been received by defendant on the 30th or 31st of March, 1917. The application asked that the cause be continued so that further time might be had in which to take the deposition of the absent witness. The court overruled the motion and the cause proceeded to trial.

The court did not commit error in overruling the application. From the showing made it appears that defendant, after he learned the Oklahoma notary would not act in the matter, had yet remaining, before the trial, ten days in which to make further effort to secure the deposition, but it does not appear that any further attempt was made until the morning the case was called for trial. The showing of due diligence upon the part of the applicant bears a very important part in determining his rights to a continuance. The showing made was very unsatisfactory in this regard, and we are of the opinion that the court was acting within the scope of a sound discretion in refusing the continuance. [State v. Cain, 247 Mo. 700, l. c. 705.]

II. The main contention made by appellant as ground for reversal is that the court erred in overruling his demurrer to the evidence offered a^ cl°se of the case. In this behalf it is urged that there is not sufficient evidence to authorize the jury to find that at the time of the occurrence of the alleged carnal act on February 10, 1916, the prosecutrix was between fifteen and eighteen years of age as required by the statute upon which the information was based. Appellant contends that the evidence shows that at the time above mentioned the prosecutrix was under fifteen years of age and that therefore defendant could not be found guilty of the crime of which he stood charged.

The only witness giving any testimony on the point was the prosecutrix. Upon her examination in chief she testified that she was sixteen years of age. On cross-examination she testified she was born on July 9, 1901. On further cross-examination she said that she was fifteen years old in 1915. From this it appears that the testimony of the witness is contradictory. If she were bom July 9, 1901, she was under fifteen years of age on February 10, 1916; if on the other hand, she was fifteen years old in 1915 then she was between'the age of fifteen and eighteen years on the date of the alleged carnal act.

Under such circumstances the question of her age was properly submitted to the jury. [State v. Marshall, 137 Mo. 463, l. c. 468.]

The rule, that where one of the parties to the suit testifies to facts against interest, he is bound by such admissions unless avoided by contrary evidence given by himself, satisfactory explanation for the conflict in testimony having' been given (which rule was fully discussed and applied in the recent case of Steele v. Railroad, 265 Mo. 97), has, as was specifically stated in that case, no application to the conflicting testimony of a witness not a party to the suit.

In that case it was said: “We need not reiterate that as to a mere witness no state of facts could ordinarily arise upon any matter of contradictory evidence, that would oust the triers of fact of their privilege in a law suit of resolving the truth of such contradiction.” [Id., l. c. 118.]

III.. It is contended that the court erred in excluding the former testimony of one Lawrence Waddle given at the preliminary hearing in this case held before Z. Acüff, a justice of the peace. A showing was made that said Waddle was at the date of the present trial absent from the State. After such showing defendant placed the justice upon the stand and offered to prove by him that at the preliminary hearing in this case said Waddle was sworn as a witness and was asked the following question: “Did you prior to the 10th day of February, 1916, have sexual intercourse with the prosecuting witness'? (naming the prosecutrix herein),” and that in - response to this question the witness claimed his constitutional right and refused to answer the question.

The above offer was refused and the defendant saved an exception. We are of the opinion that the court’s action in this matter was free from error.

It has now become well settled by the great weight of authority that no inference of the existence of the incriminating fact is permitted to he drawn from the witness’s claim of privilege and that therefore the witness’s claim of privilege is nut a proper matter of evidence for the jury’s consideration. [3 Wigmore on Evidence, par. 2272, pp. 3146-3147; 1 Greenleaf on Evidence (16 Ed.), par. 469 (d), p. 615; Phelin v. Kenderdine, 20 Pa. St. 354, l. c. 363; Beach v. U. S., 46 Fed. 754; People v. Maunausau, 60 Mich. 15; Waer v. Waer, 90 Atl. (N. J. Ch.) 1039; Loewenherz v. Merchants & Mechanics Bank of Columbus, 144 Ga. 556; Masterson v. Transit Co., 204 Mo. 507, l. c. 524; Garrett v. Transit Co., 219 Mo. 65.] To the writer’s mind the best announced reason for the rule is found stated in an early case by the Supreme Court of Pennsylvania as follows:

“When a witness declines answering a question, upon the ground of its tendency to criminate himself, the objection is addressed to the court and the decision upon it is to he made by the court, and not by the jury. If the privilege claimed by the witness be allowed, the matter is at an end. The claim of privilege and its allowance is properly no part of the evidence submitted to the jury, and no inferences whatever can he legitimately drawn by them from the legal assertion by the witness of his constitutional right. The allowance of the privilege would be mockery of justice, if either party is to be affected injuriously by it. The exercise of this right by the witness is not under the control of the parties, and no one can be affected by evidence which his adversary fails to produce, and which, therefore, cannot be met or explained by cross-examination, rebutting evidence, or otherwise.” [Phelin v. Kenderdine, supra, l. c. 363.]

IV. Appellant contends that tire court erred in sustaining an objection to a question propounded to the prosecutrix on cross-examination, as . , ,. , _ to whether or not she had ever had sexual intercourse with any other man; that the question was proper on the issue as to the previous chaste character of the prosecutrix.

The question did not fix the time as being prior to the alleged sexual intercourse between defendant and the prosecutrix, and the triah court gave as a reason for sustaining the objection that it did not so fix the time. No further attempt was made by defendant to re-frame the question in that regard. The showing of prior acts of sexual intercourse between prosecutrix and another would be proper on the issue of previous chaste character, but subsequent acts would not be material in that regard. [State v. Perrigin, 258 Mo. 233, l. c. 238.]

V. There was sufficient evidence to sustain the verdict. Other assignments of errors made are either embraced in the ones above discussed or are not of sufficient importance to merit discussion.

The judgment is affirmed.

All concur.


author: FARIS, J.

text:
    THE STATE v. LEE GULLEY, Appellant.
    Division Two,
    December 4, 1917.
    1. APPEAL: No Counsel for Appellant: Review of Record. Notwithstanding appellant in a criminal case is not represented by-counsel, the appellate court will, following the mandate of the statute, review the record to the extent of ruling any error properly assigned in the motion for a new trial. *
    2. INSTRUCTION: Credibility of Defendant and Wife. It is not error to refuse an instruction on the weight and credibility of the defendant’s testimony or on that of his wife, although requested by defendant; on the contrary, the giving of such an instruction would be reversible error. [Following State v. Finkelstein, 269 Mo. 612.]
    3. -: Refusing Defendant’s. It is not error to refuse defendant’s requested instructions if the court has already fully and properly instructed on the subjects covered by them.
    4. AGE OP PROSECUTRIX: Testimony of Aunt. A sister of prosecutrix’s mother, and therefore within the purview of the law a member of the mother’s family, which fact in a proper situation renders even hearsay declarations admissible in proof of age and pedigree, is a competent witness to testify as to the age of prosecutrix at the time of the assault with intent to rape.
    5. -: Family Bible Record: Cumulative Evidence. Where prosecutrix’s age has not been disputed and has already' been shown by two uncontradicted and competent witnesses, the admission in evidence of a bare Bible record showing the name of prosecutrix and the day, month and year of her birth, made by her aunt, among entries relating to the aunt’s own children, was so far cumulative as not to constitute reversible error, whether or not the entry was of itself incompetent — a question not determined.
    6. ACCESSORY: Of Father to Rape of Daughter: Substantial Evidence. If upon a careful examination of the acts, behavior and language' of the father, charged with being an accessory to an assault upon his daughter less than fifteen years of age with intent to rape, it appears to the court that his language may well have been construed to have no other meaning than that the child was to be sent up to the railway boarding car for the purpose and upon a bargain that the cook and his assistant, one or both, might have sexual intercourse with her, and she was sent and the assault made or attempted, the question of the father’s guilt becomes an issue for the jury to determine, for these facts constitute substantial evidence.
    7. -:-: No Force. And though it may well be that neither the said cook, nor his assistant who committed the assault, nor the father, their accomplice, had in mind the use or necessity for force in accomplishing the design of the cook or his assistant to have sexual intercourse with the child, that fact does not mitigate' the offense of the - father in aiding and abetting the assault, since, the child being under the age of consent, neither force nor the lack of it cuts any figure in the ease.
    8. APPELLATE PRACTICE: Substantial Evidence. If the acts of defendant were obviously susceptible of the construction that defendant is guilty of the crime charged they constitute substantial evidence of his guilt, and the question of his guilt then becomes one of fact for the jury to decide, and not one of law for the appellate court to determine.
    Appeal from Lafayette Circuit Court. — -Hon. John A. Rich, Judge.
    Affirmed.

      Patrick T. O’Hern and Wofford & Kimbrell for appellant.

      Frank W. McAllister, Attorney-General, Henry B. ' Hunt, Assistant Attorney-General, and G. P. LeMire for the State.
    (1) The court did not err in refusing defendant’s instructions 11, 12, 18 and 14. (a) It would have been reversible error to give instruction No. 11. State v. Finkelstein, 269 Mo. 612. (b) Instructions 12 and 13, asked by defendant, were substantially set out in instructions 3 and 7 given. (2) The court did not err in admitting the testimony of Katie Gulley and Mrs. Emma. Jenkins regarding the age of said Katie Gulley. State v. Marshall, 137 Mo. 463. (3) The introduction of Bible record kept by Emma Jenkins would not warrant a reversal where there is other clear and convincing and undisputed evidence. Beckham v. Nacke, 56 Mo. 549.
   FARIS, J.

Defendant was tried in the criminal court of Lafayette County upon an indictment in two counts, charging him with being an accessory before the fact to rape and assault with intent to rape. Having been found guilty of the latter crime his punishment was assessed at imprisonment in the State Penitentiary for a term of five years. After the usual procedure he has appealed.

The facts are unique in legal annals, and present a case of such abhorrent brutality as to render them well-nigh incredible. Briefly these facts run thus: Defendant at and prior to November 26, 1915, was living with his wife and six children in the suburbs of the town of Lexington, in the abandoned office of an old coal mine, likewise abandoned. Two, at least of these children of defendant were girls; one Katie (whom we shall hereafter for brevity refer to as prosecutrix) was fourteen years and five months old at the date aforesaid; the other approaching seventeen years. Defendant, as the record shows him, was wholly worthless, drunken, and shiftless, and bore an evil reputation for morality. He drew, presumably for service in the Spanish War, a pension of eight dollars per month, which pension was too small for his support, and yet so large as to destroy his energy and ambition to support himself; hence he seems to have lived in abject poverty. Near the place of residence of defendant upon the railroad tracks there were at the date mentioned certain boarding-cars, housing laborers engaged as track repairers on the Missouri Pacific Railroad. In charge of these boarding-cars were one Duncan, the cook, and his assistant, or flunkey, Clifton Igleheart. The latter having heard on the day preceding a conversation between defendant and one Steinmetz, which he interpreted as a proposition on defendant’s part to traffic in the virtue of his daughters, went to defendant and by the gift of á bottle of brandy induced him to go to the boarding-cars. Reaching these cars and entering into a conversation with Duncan and Igleheart, defendant was told to send prosecutrix and her sister up to the cars with a basket and get a ham and certain other provisions, which Dnncan exhibited to defendant. Subsequent conversation between defendant on the one part, and Duncan and Igleheart on the other, is thus related by Igleheart:

“Duncan told him that he would like for him to send the girls over to stay all night, and he said, ‘No I can’t send them over tonight, the girls were going to a box social,’ and he says, ‘Well, come -up in the car, in the kitchen, and I will show you the ice box, show you how much meat we got out there; got some ham and bacon and beef,’ and went out-in the cooking car and Mr. Duncan offered him a bottle of beer and he said, ‘no, he wouldn’t drink the bottle of beer;’ he said he had that brandy, he would drink the brandy. Then I asked him if he would send the girls over this evening; gave him a quarter and he said, ‘Yes,’ would send them over right away. So Mr. Duncan asked him if it would be all right and he said, ‘Yes, it would be all right;’ he said, ‘You know what we want with them?’ He said, ‘Yes, I will send them over right away,’ and he left and the girls came over to the oar and I helped both of them into the kitchen, and the smallest one I told her to come into the commissary car with me.”

Shortly thereafter, defendant returned to his home, called the two girls and ordered them to take a basket and go to the boarding-cars for the provisions promised to him by Duncan and Igleheart. At first the girls refused to go, but by threatening to beat them with a poker, defendant compelled them to take the basket and go up to these cars. Upon reaching the ears the prosecutrix was taken by said Igleheart to one of the sleeping apartments where the assault was committed. Since there seems to be no -serious dispute as to the sufficiency of the evidence to make out an assault with intent'to rape we need not take up space here to set out the details of this assault. The chief contention being, as we read thie record, that the evidence of the defendant’s criminal connection with this assault is too meager to sustain this conviction, and not that the evidence offered to prove the assault itself is insufficient to show the necessary elements to warrant, or which would have warranted, the conviction of Igleheart of assault with intent to rape.

The testimony of Igleheart as to the language and solicitations of the defendant is fully corroborated by said Steinmetz, who was the predecessor of Duncan, as cook, and to whom on the day preceding this assault, defendant, in the presence and hearing of Igleheart, made a similar proposition to that which he afterwards miade to Duncan and Igleheart, and upon which the latter acted.

After the assault, and when prosecutrix reached home crying and screaming, Igleheart left hurriedly and went to Kansas City, where he was arrested some forty-eight hours later. Defendant went immediately to the cars, and after cursing and abusing Duncan (Igleheart having as stated immediately fled), went to the telephone and called the officers to arrest Duncan and Igleheart.

Whether any disposition had been made of the charge against Igleheart, the record does not show. But he was a witness in the case without objection, and his fate need not therefore here concern us farther. If further facts shall become necessary we will set them out in our discussion of the case.

Defendant is not represented in this court by counsel. But in compliance with the mandate of the statute in this behalf, following such light in the pursuit of error, as is afforded us by the motion for a new trial, we have carefully examined the record.

I. Defendant, requested the court to instruct the jury on (a) the weight and credibility of the defendant’s testimony, and on that of defendant’s wife, (b) on the presumption of defendant’s innocence, and (c) on the general credibility of the .. -, ,, . , , , , . , witnesses and the weight to be given to their testimony. The first instruction requested was properly refused, because the giving of it would have been reversible error. [State v. Finkelstein, 269 Mo. 612.] This instruction, moreover was carelessly drawn, and had in form, for it tells the jury how to weigh the credibility of defendant’s wife, who was not, a witness in the case. This of course would not have prevented the requested instruction from operating as a suggestion to the trial court to give a correct instruction, if the situation had made this incumbent.

Upon the defendant’s remaining contentions of error, which are bottomed on the refusal of the court to give certain requested instructions, it is only necessary to say that the court had already fully and sufficiently instructed on the burden of proof, and the presumption of defendant’s innocence, and had already given sua sponte, upon the question of the general weight and credibility of the witnesses, the identical instruction requested by defendant, and of the refusal of which he complains. It is useless to cite authorities to prove that under such circumstances no error inheres.

II. Strenuous complaint is made that the court erred in permitting a witness for the State, who was an aunt of the prosecutrix, to testify as to the age of the latter, and that it was likewise error to offer the entries of the date of prosecutrix’s birth, which were made contemporaneously by this witness in a Bible. There is no doubt that in a prosecution'of this sort the age of the prosecutrix may become vitally material, and that such age must be shown by the State by competent evidence. In this case, the witness who was offered to prove this fact by her oral testimony was -the sister of prosecutrix’s mother, and therefore a member of the latter’s family, within the purview of the law, which in a proper situation renders even hearsay declarations admissible in proof of age and pedigree. [16 Cyc. 1228.] That the witness’s statement as' to the age of prosecutrix was competent, we think there can be no doubt. The prosecutrix had herself already testified that her age at the time the alleged assault was made on her was under fifteen years. There was no contradiction, or even attempted contradiction of the fact that prosecutrix was at the time under the age of consent, for upon this question defendant offered no countervailing proof whatever.

Upon the point that the entry of the date of prosecutrix’s hirth, which was made by the aunt in her Bible, among entries relating to the witness’s own children, was incompetent, it is enough to say that since there was no dispute about the age of prosecutrix, and since such age had already been shown by two uncontradicted and wholly competent witnesses, the offering of the bare Bible entry, which merely gave the name of prosecutrix, and the day, month and year of her birth, was under the facts so far cumulative as not to constitute reversible error. [Beckham v. Nacke, 56 Mo. l. c. 549.] We are not to be understood as holding that this entry was not admissible. We are merely saying that its admission here was not reversible error, and leaving the point for determination when the question shall become more pertinent. It follows that this contention must be overruled.

III. Complaint is made in defendant’s motion for a new trial that- there is not in the case any substantial evidence of defendant’s guilt. This point is one of some difficulty. The nature of the crime charged, and the natural abhorrence aroused thereby make it appear incredible, but upon a careful examination of the acts, behavior, and language of the defendant, we are constrained to hold that his language might well have been construed to have no meaning other than that the fourteen-year-old prosecutrix was to be sent up to the boarding-cars for the purpose, and upon the bargain with Duncan and Igleheart, that one, or both of them, were to have sexual intercourse with her. It may well be that neither the principals in this crime, nor the defendant, their accomplice, had in mind the use or necessity for force in accomplishing their evident designs. Certain side-lights in the case point to the conclusion that they did not have in contemplation the necessity for the use of force; but since prosecutrix was at the time under the age of consent, force or the lack of it cuts no figure in the case. We are fully convinced that the language used by defendant was so far susceptible of tbe construction which, the triers of fact put on it, to-wit, that it was an invitation to, and a bargain with, Duncan and Igleheart to have sexual intercourse with his fourteen-year-old daughter, and an agreement to furnish these men with an opportunity to consummate such bargain, that we will on this point leave the case where the triers of-fact left it. We hold that the evidence was substantial, since the language and the acts of defendant were obviously susceptible of the construction which the jury placed on them (Linderman v. Carmin, 255 Mo. 62; Knorpp v. Wagner, 195 Mo. l. c. 662), and we uniformly hold that when there is in a case substantial proof of the crime charged,' or of any required element to make out such crime, the question becomes one of fact for the jury, and not one of law for us. [State v. Taylor, 261 Mo. 210; State v. Concelia, 250 Mo. 411.]

Other matters are urged in the motion for a new trial, but since all such contentions are either not borne out by the record, or being so shown therein have yet not been properly preserved for our review, we are not permitted to consider them.

Let the case be affirmed.

All concur.


author: WHITE, C. PER CURIAM:

text:
    THE STATE v. WILLIAM C. BOWMAN, Appellant.
    Division Two,
    December 4, 1917.
    1. STATUTORY RAPE: Proof of Porce: Not Charged. The offense denounced by the statute is the unlawful act of sexual intercourse with a female under fifteen years of age, and if force is used in accomplishing the crime, that is a mere immaterial incident, and therefore proof that the act was accomplished by force and against prosecutrix’s consent, though force is not charged in the information, is not error.
    2. -: Sufficiency of Evidence: No Proof of Porce. Because the testimony of prosecutrix is incredible in one particular, it does not follow that it is incredible in all particulars. Where prosecutrix, under fifteen years of age at. the time of the act of sexual intercourse, testified that it was accomplished by force, and defendant denied that it was accomplished at all, the jury may convict, although the evidence is too weak to establish forcible ravishment, if her testimony as to the main fact of carnal knowledge is clear and is corroborated by other circumstances.
    3. PHYSICIAN’S ACCOUNT BOOK: Evidence in Independent Criminal Action: Age of Prosecutrix. The book of a physician, who attended prosecutrix’s mother at the time of her birth in another State and made an entry of the charge upon his book, showing the purpose of his visit and the date, and who testifies that he has independent, recollection of the occurrence aside from the entry in the book and is certain of the date after having refreshed his memory from the book, is, as a book of account, competent evidence, in a prosecution for statutory rape, of the age of prosecutrix, although the book does not show that the charge was paid. Not only should the physician himself, after refreshing his memory from the book, be permitted to testify, but his book is. competent evidence to show the date of prosecutrix’s birth.
    4. DEFENDANT AS WITNESS: Cross-Examination As to Extrinsic Occurrences. In a prosecution for statutory rape, where defendant had testified in his direct examination only as to what occurred on the night the crime is charged to have been committed, it was error for the State to ask him on cross-examination if he had not at previous times been guilty of criminal intimacy with another girl who on that night accompanied him and prosecutrix in the automobile, although he answered in the affirmative and was made to give the time and place, since the cross-examination was entirely outside the scope of the direct examination.
    5. EVIDENCE: Similar Offenses: Intent. In a prosecution of a de-, fendant for statutory rape, a written extra-judicial admission made by defendant that he had been guilty of criminal intimacy with another girl, is not admissible for the purpose of showing the intent with which defendant committed the act of sexual intercourse with prosecutrix.
    Appeal from Jackson Circuit Court. — Hon. E. E. Porter-field, Judge.
    Reversed and remanded'.

      Patrick T. O’Hern, Clarence Wofford and Bert 8. Kimbrell for appellant.
    (1) THe defendant being charged with rape upon Eva Frampton, it. was error for the trial court to admit evidence of an act or acts of intercourse by defendant with Clara Parker, or of statements or admissions by defendant with reference thereto. State v. Smith, 250 Mo. 274; State v. Teeter, 239 Mo. 475; State v. Vandiver, 149 Mo. 502; State v. Banks, 258 Mo. 479; State V. Phillips, 233 Mo. 299; State v. Hyde, 234 Mo. 200; State v. Horton, 247 Mo. 657. (2) The court erred in permitting the defendant to be cross-examined with reference to matters and things not mentioned or touched upon in his examination in chief. Sec. 5242, E. S. 1909; State v. Burgess, 259 Mo. 383; State v. Swearengin, 190 S. W. 268; State v. Kinney, 190 S. W. 306; State v. Pfeifer, 267 Mo. 23; State v. Goodwin, 195 S. W. 725. (3) The court erred in permitting the day book and ledger of Dr. Janes • to be introduced in evidence and read to and examined by the jury. Childress v.'Cutter, 16 Mo. 24; Morrissey v. Perry Co., 47 Mo. 521; State v. Hamilton, 263 Mo. 298. (4) The court erred in permitting the State to introduce evidence showing that the alleged act of intercourse was committed forcibly and against the will of the prosecutrix, there being no allegation in the information that the act was committed forcibly and against the will of prosecutrix. Sec. 22, Art. 2, Constitution. (5) The court erred in refusing to instruct the jury to find the defendant not guilty at the close of all the evidence as requested by defendant, for the reason that the evidence is not sufficient to sustain the verdict. State v. Patrick, 107 Mo. 147; State v. Goodale, 21.0 Mo. 275; State v. Tevis, 234 Mo. 276; State v. Donnington, 246 Mo. 343; State v. Law-horn, 250 Mo. 293.

      Frank W. McAllister, Attorney-General, and E. M. Conner, Assistant Attorney-General, for the State.
    (1) The trial court did not commit error in allowing the State to admit evidence of acts of intercourse of the defendant with Clara Parker and statements or admissions by the defendant with reference thereto. This was allowable to show the intent or motive of defendant. State v. Thornhill, 174 Mo. 370; State v. McLaughlin, 149 Mo. 19; State v. Bailey. 190 Mo. 279; State v. Sarony, 95 Mo. 349; State v. Turley, 142 Mo. 403;. State v. Phillips, 160 Mo. 503; State v. Franke, .159 Mo. 535; State v. Pennington, 124 Mo. 383; State v. Minton, 116 Mo. 605; State v. Williamson, 106 Mo. 162; State v. Toohey, 203 Mo. 678; State v. Spaugh, 200 Mo. 594; State v. Bailey, 190 Mo. 279; State v. Bolch, 136 Mo. 103; State v. Cooper, 85 Mo. 256; State v. Bayne, 88 Mo. 604; State v. Myers, 82 Mo. 558; State v. Hodges, 144 Mo. 50; People v. Molineux, 168 N. Y. 293, 62 L. R. A. 329-335; Goresen v. Commonwealth, 99 Pa. St. 398; Commonwealth v. Robinson, 146 Mass. 577; Commonwealth v. Snell, 189 Mass. 22 ; Hawes v. State, 88 Ala. 37; Higgins v. State, 157 Ind. 57; People v. Harris, 136 N. Y. 423; Zoldoski v. State, 82 Wis. 580 ; Wheeler v. State, 23 Tex. App. 598; Shafner v. Commonwealth, 72 Pa. St. 60; Wharton’s American Criminal Laws (6 Ed.), sec. 649; 3 Greenleaf on Evidence, sec. 15; Stevens, Digest of Evidence, arts. 11, 12; People v. Zucker, 154 N. Y. 770; Regina v. Cotton, 12 Cox’s C. C. 400; Regina v. Geering, 18 L. J. Maj. Cas. 215; Regina v. Heesom, 14 Cox’s C. C. 40; Gossenheimer v. State, 52 Ala. 313; Hobbs v. State, 75 Ala. 1. Admissions and statements of the accused are always admissible against him when freely and voluntarily made. State v. Barrington, 198 Mo. 109; State v. Spaugh, 200 Mo. 596; State v. Daly, 210 Mo. 664; State v. Green, 229 Mo. 650. (2) The court did not err in permitting the defendant to be cross-examined with reference to acts of intercourse by the defendant with Clara Parker and with reference to admissions or statements made by the defendant concerning such acts of intercourse. Authorities under point one; also: State v. Barrington, 198 Mo, 85; State v. Mills, 156 Mo. 85; State v. Feeley, 194 Mo. 315; State v. Eishenhour, 132 Mo. 148; State v. Harvey, 131 Mo. 345; State v. Keener, 225 Mo. 4991. (3) The court did not err in permitting the day book and ledger to be introduced in evidence and read and examined by the jury. 33 Cyc. 1473; Neill v. State, 49 Tex. Crim. App. 219; People v. Yann, 129 Cal, 118; 10 R. C. L. secs. 63, 341, 343, 350, 372; Note to 69 L. R. A. 475. (4) The court committed no error in allowing the State to show that the alleged act of intercourse was committed by force and against the will of the prosecutrix. State v. Ernest, 150 Mo. 347; State v. Allen, 174 Mo. 689.
   WHITE, C.

Defendant appeals from a conviction of statutory rape. The offense was alleged to have been committed upon one Eva Frampton, a girl under the age of fifteen years, during a “joy ride” in defendant’s automobile.

The defendant challenges the evidence as being insufficient to warrant a verdict of guilty.

Two other persons, Robert L. Moore, a man 33 years of age, and Clara Parker, a girl apparently older than the prosecutrix, were also in the automobile during the ride. Neither Clara Parker nor Moore testified, in the ca«e, although it appears from the record that Clara was in the court room at the time, and Moore was under arrest for the same offense against Eva Frampton as that with which defendant was charged. The girl and the defendant were,the only witnesses who presented direct testimony as to what occurred.

Some important facts are undisputed. Eva Frampton’s mother, who had separated from, her husband when Eva was an infant, had recently moved from Wellsville, Kansas, to Kansas City. Eva had been an inmate of the House of the Good Shepherd and, only a short time before the joy ride, had come to live with her mother at the latter’s home in Kansas City. While at the House of the Good Shepherd she had made the acquaintance of Clara Parker. After coming to her mother in Kansas City, some time in May, 1915, while on an errand for her mother, Eva met Clara on the street and was invited by the latter to take an automobile ride that afternoon. Later the two met by appointment at Fourteenth Street and Broadway, and after waiting a few minutes the defendant, Bowman, and Moore came along in Bowman’s “Hudson Six.” The two girls got in the rear seat, the two men sitting in front, and the joy ride began at about 3:30 in the afternoon.

The defendant was a married man forty-six years of age, had several children and ran a prosperous restaurant. He had several hundred dollars on his person at the time and paid the expense of the escapade. Eva had never seen either of the two men before, and Bowman, who had made the appointment for the ride with Clara Parker, did not know that Eva was to accompany them.

They drove a few blocks when the four got out and entered a side room or hall adjacent a saloon, where they took several rounds of whiskey. They then proceeded to another place, the precise nature of which does not appear, where they again went in and took drinks. They stopped at several saloons where drinks of whiskey, beer and cocktail were brought out to them by Moore. Besides, they took along bottles of whiskey and prepared cocktails of which they partook as they rode They finally turned the automobile toward Independence, all of them being more or less drunk. The two men had been drinking before they met the girls. After the visit to the first saloon Clara Parker got in the front seat with defendant, and Moore sa,t behind with the Frampton girl. The party arrived at Independence before dark and stopped at the home of Mrs.' Yetter, Moore’s mother, where they all went in and remained for a few minutes. When they continued their ride Mrs. Tetter and her husband accompanied them in the car. They had not been driving long until the car got stuck in the mud. Mrs. Tetter and her husband then left the automobile, intercepted a passing buggy and left for home in it. The four joy-riders remained in the car and, after repeated efforts to extricate it from the mud, it was finally dislodged and started on the return journey to Nansas City, where it arrived at three o ’clock in the morning. It had been in the mud several hours. After the car had been in the mud for some time Clara Parker left it, probably going to a street car. Eva was left alone with the two men; During the ride and particularly after the car was stalled, “improper familiarities,” as defendant’s counsel expresses it, were indulged in by the joy-riders, but defendant claims the crime charged was not committed by him.

When the car was driven back to Kansas City, Moore got out at an ice plant where he wais employed, and defendant drove on with Eva Frampton, left her at a hotel and gave her two dollars to pay for her lodging. She remained there the remainder of that night, the next day, and the following night, and then was taken home by a man staying in the hotel. "When she reached home the family and the police were excited about her disappearance, and the defendant was already under arrest.

In the facts as above stated, as well as in many unimportant details of the ride, the defendant and the prosecutrix are in substantial agreement.

There was a sharp conflict in the evidence as to the girl’s age. Eva asserted that she was forcibly ravished by both men, by Moore while on the way to Independence, and again after the car became stalled, and by Bowman after Clara Parker left the automobile. The defendant stoutly denied that he committed the act or even attempted any familiarities with the prosecutrix. He said he attempted the act with Clara Parker, but was too drunk to accomplish his purpose. Certain it was, according to the testimony of Eva, as well as of himself, that he was drunk, sick and vomiting a good deal of the time. Defendant also said the reason he took Eva to the hotel was because she was afraid to go home and refused to go.

I. The appellant complains of error by the trial court in permitting the State to prove that the act of carnal intercourse with the prosecutrix was committed forcibly and against her consent, because the information failed to allege force, and for that reason the defendant was not advised by the allegation of the charge he was required to meet. The rulings are against that position. The unlawful act committed upon a female under fifteen years of age constitutes the offense. The additional element of force in accomplishing the crime is an immaterial incident. It does not change the nature of the offense as defined by the statute, and a failure to allege it cannot mislead a defendant as to what he must defend against. [State v. Knock, 142 Mo. 515, l. c. 522, 525; State v. Hamey, 168 Mo. 167, l. c. 197-9.]

. II. Appellant makes the further point in this connection that a verdict of acquittal should have been directed under the evidence. The argument is that the prosecutrix asserted the act of intercourse was aecomPbshed by force; while the' defendant denied the act altogether; therefore, a forcible act was the only one sworn to and if there was no force there was no unlawful act. It is fur-, ther urged that the evidence must be weighed and considered in the light of rulings of this court in cases of forcible rape. Appellant then points out many circumstances shown by the evidence which indicates force could not have been used, aaid concludes that there being manifestly an absencé of force the erim'e was not committed. The point is ingeniously and finely drawn. Because the testimony of the prosecuting witness is incredible in one particular, it does not follow that she testified falsely in all particulars. The jury well might have believed the unlawful act was committed without believing her statement that force was used. Her testimony as to the facts, was very clear and circumstantial, and was corroborated by other circumstances. It was, we think, sufficient to take the issue to the jury. The court has sustained verdicts of guilt in cases of this character where the prosecutrix asserted force was used where the defendant denied the guilty act, and the evidence of force was as weak as it is here. [State v. Taylor, 267 Mo. 41, l. c. 48; State v. Allen, 174 Mo. 689.]

III. There was a conflict of evidence as to the age of the girl, Eva Frampton, at the time of the alleged offense. The defense offered evidence tending to show that she was a few months over the age of fifteen years. On the part of the State one I)r. Janes was introduced and testified that he attended her mother at the time of her birth and made an entry upon his charge book of the date, November 9, 1900, showing the purpose of his visit at that date. This book was offered and admitted in evidence. Dr. Janes also testified that he had an independent recollection of the occurrence, aside from the entry upon the book, and was certain, of the date after having refreshed his memory from the hook. The introduction of this book is assigned as error. It was objected to on the ground that no statute of Kansas, where the occurrence took place, was offered making such an entry admissible. It was not offered, however, as evidence made competent by statute, but as a book of account, competent at common law.

It was the English rule, and it has been said in some jurisdictions of- this country to be the general rule, that account books kept by third persons and not intended to be accounts of transactions between the parties litigant, are res inter alios a ota and not admissible in evidence. However, that rule has not been adhered to in many of the States, including this State. Many cases can be cited where books of third persons, not parties to nor interested in the litigation, are admissible in evidence. Such, for instance, as the books of a bank to show the state of a litigant’s account at a certain time. [Jordan v. Osgood, 109 Mass. 457; Culver, Admr., v. Marks, 122 Ind. 554, l. c. 563; Anderson v. Edwards, 123 Mass. 273.] Unofficial entries made by a surveyor are admissible in evidence, independent of any statute. [Le Bourgeoise v. Blank, 8 Mo. App. l. c. 441; Williamson v. Fischer, 50 Mo. 198.] The record of a telegraph company showing a telegram sent, has been held admissible in an action between third persons. [St. L. S. W. Ry. Co. v. Sewing Machine Co., 78 Ark. 1; 8 Am. & Eng. Ann. C. 208; Manchester Assurance Co. v. Oregon R. R. & Navigation Co., 69 L. R. A. 475, l. c. 478.] Other entries of third persons and books kept by such third persons, when relevant to the issues between parties litigant, have been held admissible in various civil as well as in criminal cases. [State v. Brady, 36 L. R. A. (Iowa) 693, l. c. 696; Williams v. Geaves, 34 Eng. C. L. 541; C. & N. W. Ry. Co. v. Ingersoll, 65 Ill. 399.]

The entry made by a physician upon his book showing the date of his attendance upon a patient and the complaint of which the patient was suffering, has been held admissible between third parties, in criminal and in civil cases. [Arms v. Middleton, 23 Barb. 571, l. c. 574; Morrow v. State, 120 S. W. (Tex.) 491.] The question came before this court in ease of Knapp v. Trust Co., 199 Mo. 640, 1. c. 669-70. That was an action to contest a will, and the book of a physician, who was dead at the time, showing attendance upon the testatrix, the complaint from which she was suffering and his charge for the visit, together with his notation showing payment of the' charge, were held admissible in evidence upon the question of mental capacity. This court held the evidence properly admitted on the ground that it was an entry by the physician against his interest, inasmuch as it showed payment of an account; and, inasmuch as the part showing payment was admitted, the entire entry was held admissible. The inference might be from that case that the entry would not be admissible unless the part showing the. payment had been entered. In the case of State v. Palmberg, 199 Mo. 233, l. c. 253, where the defendant was charged with the same offense as is charged here, the age of the girl Avas at issue and the physician who attended her mother at her birth testified to the fact and the date by refreshing his memory from a minute made in a memorandum book at the time. His testimony was held admissible.

In the present action Dr. Janes not only identified his book and the entries made at the time of the occurrence, but stated that he had an independent recollection of the matter and knew the prosecuting witness. No entry was made showing payment of his bill, such as was shown in the Knapp case. We can see no reason Avhy an entry of payment should make any difference as to the admissibility of the other entry showing the date of the visit and its purpose, the physician who made it having no interest Avhatever in the matter under investigation. Under . the authorities cited we think that not only the physician himself was properly permitted to testify, after refreshing his memory from the book, but that his book was competent evidence for the purpose for which it was offered — to sIi'oav the date of the birth of Eva Frampton.

IV. The defendant was’ sworn as a. Avitness in his own behalf and in cross-examination the State’s attorney asked him if he had not at preAfious times been guilty of criminal intimacy with Clara Parker. He ■, . ,, „„ ,. n ansAvered m the affirmative, and was made to give the time and place of such occurrences. This was objected to on the part of defendant’s counsel and exceptions saved to the ruling of the court in admitting it in evidence.

In direct examination the defendant testified only to what occurred during the progress of the automobile ride on the night on which the crime is said to have been committed, so that this cross-examination was entirely outside the scope of the examination in chief, and reversible error under numerous authorities construing section 5242, Revised Statutes 1909. [State v. Swearengin, 269 Mo. 177, l. c. 185; State v. Burgess, 259 Mo. 383, l. c. 397; State v. Pfeifer, 267 (Mo. 23, l. c. 30; State v. Goodwin, 271 Mo. 73, l. c. 81; State v. Smith, 250 Mo. 274.]

V. The State offered in evidence a written statement made by the defendant at the time he was arrested, to show that on previous occasions he haid been guilty of criminal intimacy with Clara Parker. This was objected' to by defendant and exceptions saved to the admission of the evidence. This, likewise, was reversible error. In discussing this point both the State’s counsel and counsel for defendant treated it as an evidence of an independent crime similar to the one charged in the information. It is a rule that such evidence is inadmissible, subject, however, to certain exceptions. Counsel for the State enumerate these exceptions without pointing out specifically the exception under which this evidence would come. The evidence shows no association or connection with the crime chairged, and we presume it is offered on the theory that it showed the intent with which the act was committed — the reason usually offered for the introduction of such testimony. The proof of crimes committed by a defendant, similar to that for which he is on trial, for the purpose of showing the intent, is admitted in certain classes of cases, but such evidence is held inadmissible in cases of the character of this one. [State v. Smith, 250 Mo. 274; State v. Teeter, 239 Mo. 475, l. c. 485.]

For the errors noted, the judgment is reversed and the case remanded.

Roy, C., concurs.

PER CURIAM:

The foregoing opinion of White, C., is adopted as the opinion of the court.

All the judges concur.


author: ROY, C. PEE CUEIAM:

text:
    THE STATE v. MITCHELL HEDRICK, Appellant.
    Division Two,
    December 4, 1917.
    1. HOG: Carcass. A defendant charged with stealing hogs cannot be convicted of stealing the carcass of a hog. The carcass of a hog, by whatever name called, it not a hog. The word “hog” means a live animal.
    2. -: -: Venue: Failure of Proof. Defendant was charged with stealing four black hogs in Reynolds County and was indicted in that county. The evidence shows that the hogs were stolen and killed in Dent County, and thereafter their carcasses were taken by defendant and two other persons into Reynolds County, where they were cleaned and divided among them. Held, that there was a total failure of proof. Defendant could not under the indictment be convicted of stealing the carcasses of hogs in Reynolds County, because he was not so charged.
    3. -: -: Statute. The statute (Sec. 4535, R. S. 1909) making it grand larceny to steal any “horse, mare, gelding, colt, filly, ass, mule, hog or neat cattle” shows on its face that it is not capable of being construed to embrace those animals when dead.
    Appeal from Reynolds Circuit Court. — Hon. E-. M. Bearing, Judge.
    Reversed and remanded.

      G. R. Wadlow and Burford £ Chitwood for appellant.
    The carcasses of the animals charged to have been stolen, were not “hogs” within the meaning of Sec. 4535, R. S. 1909, as evidenced by that and various other acts of the ■ Legislature. ' Larceny of the carcass of a hog under the value of thirty dollars, is not a felony. Secs. 4535, 4864, 4627, 4548, 771, R. S. 1909; Laws 1917, p. 133. As used in the law the term-“animals” includes any animate being, which is not human, endowed with the power of voluntary motion. Upon a general statement that a party stole an animal, it is to be intended that he stole it alive, except where it has the same name, whether dead or alive. Wharton’s Criminal Evidence (9 Ed), sec. 124; 2 Cyc. 304. The charge is that appellant stole four black hogs. The proof, aside from the uncorroborated testimony of an accomplice was that the carcass of some hogs were hauled by appellant from the point where they were slaughtered in Dent County, to the point where the carcasses were dressed in Reynolds County. There is a failure of proof of the offense' charged. State v. Ballard, 104 Mo. 634.

      Frank W. McAllister, Attorney-General, Henry B. Hunt, Assistant Attorney-General, and G. P. Le Mire for the State.
    (1) The provisions of Sec. 4541, R. S. 1909, do not apply in this case. Here there was a killing of the animals in question, together with the felonious taking or converting of the same, which, taken together, constitute the crime of grand larceny. (2) Defendant’s refused instruction read: “You are instructed that the word ‘hog’ in law means a live animal and not the mere carcass of an animal.” It is agreed by all that after a hog has been killed and converted into meat it. becomes personal property and is outside of the statute on which this indictment is based. But, as to whether the mere killing of a hog without further transition or transformation from its natural state removes same from the purview of the statute, is a matter which has never been before this court. However, it was unnecessary for the trial court to define the word “hog,” as used in the statute. Under the law and the evidence, the appellant was aiding and abetting in the felonious talcing of hogs which were alive, and, without doubt, within the scope of the statute.
   ROY, C.

Defendant was charged in Reynolds County jointly with Ritchey and Strickland with the theft of four black hogs, the property of Bill Grant. He was convicted and sentenced to the penitentiary for three years, and has appealed.

The State’s evidence very clearly shows that the hogs were stolen and killed in Dent County near the line between the two counties, and that, after they were killed, the defendant went in his wagon with the other two persons charged and hauled the hogs into Reynolds County, where they were cleaned and divided among them. There is a question on the evidence as to whether this appellant was a party to the transaction prior to the death of the hogs. At the close of the State’s evidence the defendant demurred thereto, and the demurrer was overruled.

The defendant asked this instruction, which was refused:

“You are instructed that the word ‘hog’ in law means a live animal and not the mere carcass of an animal. ’ ’

He also asked an instruction as to petit larceny in case the jury should find that he had stolen the carcasses of hogs in value less than thirty dollars. It was refused.

I. There was a total failure of proof. Defendant was charged with stealing hogs in Reynolds County. The proof was that they were dead before they were taken into that county. It may be that defendant could be convicted of stealing the hogs in Dent County. It may be possible to convict him of stealing the carcasses of hogs in either Dent or Reynolds County. He cannot be convicted of stealing hogs in Reynolds County, because the hogs, as hogs, were never in that county. He cannot, in this case, be convicted of stealing the carcasses of hogs, because he

is not charged with snch an offense. The carcass of a hog, by whatever name called, is not a hog. The dictionary says that a hog is an animal, and that an animal is a living being. A person charged with stealing wheat in value more than thirty dollars may be convicted of •grand or petit larceny, in accordance with the proof as to value. But a person charged as in this case cannot be convicted of stealing mere carcasses of any value, great or. small. The English cases on this subject are as follows:

In Rex v. Edwards, Russ. & Ry. 497, decided in 1823, the defendants were charged with stealing live turkeys. They were stolen alive and then killed in one county, and then carried into another county. It is there said:

“In Hilary term, 1823, the case was considered by the judges, who held that the word ‘live’ in the description, could not be rejected as surplusage; and that, as the prisoners had not the turkeys in a live state in Hertfordshire, the charge as laid was not proved; and that the conviction was wrong. And Holroyd, J., observed, that an indictment for. stealing a dead animal should state that it was dead; for upon a general statement that a party stole the animal it is to be intended that he stole it alive.”

In the same year there were two cases against one Halloway, decided at nisi prius and reported in 1 Car. & P. at pages 127 and 128. In the first he was charg.ed with stealing a “brass furnace” in the county of Hereford. The proof showed that he stole the furnace in the county of Radnor and broke it into pieces which he carried into the county of Hereford. The report of that case states:

“Hülhock, B., directed an acquittal, and said: Though a prisoner may be indicted for a larceny in any county, into which he takes stolen property, the present indictment must fail, as he never had the ‘ brass furnace ’ in Herefordshire, or within five hundred yards of its boundaries; he merely had there certain pieces of brass.”

In the other case Hallowav was charged with stealing-two turkeys. The proof showed that they were dead and were stolen from a larder. It was held that the indictment meant live turkeys, and that the charge should have been that he stole dead turkeys.

In Rex v. Puckering, 1 Mood. C. C. 242, decided in 1829, the defendant was charged with feloniously receiving a stolen lamb knowing that it had been stolen. The lamb had been killed before he received it. It was there said:

“It appeared to the learned judge that whatever may be the case as to many animals, perhaps there might be a different rule as to animals the stealing of which is a capital offence, and it might be a question whether at all events, as to them, when an animal is mentioned it does not mean a live animal. He therefore respited the judgment, in' order that, the opinion of the learned judges might be taken. This case was considered at a meeting of the judges in Michaelmas term, 1829, and they all agreed that the conviction was good, it being immaterial as to the prisoner’s offence whether the lamb was alive or dead, his offence and punishment for it being in both cases the same.”

Commonwealth v. Beaman, 8 Gray, 497, a Massachusetts case decided in 1857, discussed the English eases, and held that where the stealing of an animal is charged it means a live animal. State v. Donovan, 1 Houst. Cr. Cases (Del.), 43, was decided in 1858. The report of that case contains the following:

“The court stopped the Attorney-General, and Gilpin, C. J., remarked that there were three decisions on the point in the English reports, the last of which had ruled that where the animal is called by the same name, either dead or alive, it is competent under such an indictment as this to prove the stealing of them in a dead state; and shad, he believed, had but that one name whether dead or alive.”

It should be noted that none of the above cases involved a statute such as we have here. Indeed the Puckering case above mentioned, which is the leading one on that side, expressly bases its ruling on the ground that the offense and its punishment were the same whether the animal stolen were alive or dead.

If we concede that the Puckering case is right, the question arises, is the punishment in this State for stealing dead hogs the same as that for stealing live ones? In other words, does our statute make it grand larceny to steal either live or dead hogs regardless of value? That statute, Revised Statutes 1909, Section 4535, makes it grand larceny to steal any “horse, ma.re, gelding, colt, filly, ass, mule, hog, or neat cattle.” On its face it is not capable of being construed to cover those animals when dead. Bishop on Statutory Crimes (3 Ed.), sec. 426, note 13, says that such statutes apply to live animals. All the decided eases we can find in any of our sister .states hold, the same thing. [Golden v. State, 63 Miss. 466; People v. Smith, 112 Cal. 333; Hunt v. State, 55 Ala. 138; Thompson v. State, 30 Tex. 356; Ballow v. State (two cases), 42 Tex. Cr. R. 261 and 263.] In the first of the last two cases it was held that where hogs were stolen and killed in one county and then carried into another county, there could be no conviction for stealing hogs in the latter county.

In this case the instruction in the nature of a demurrer to the State’s evidence should have been given.

The judgment is reversed and the cause is remanded.

White, G., concurs.

PEE CUEIAM:

The foregoing opinion of Eoy, 0., is adopted as the opinion of the court.

All of the judges concur.