text:
    THE STATE v. CAREY STEELE, Appellant.
    Division Two,
    December 4, 1919.
    1. REPUTATION: Cross-Examination of Witness: Defendant a Drunkard. Where a witness for defendant on direct examination was permitted to testify that the reputation of defendant for morality, peace, quietude, truthfulness and general standing in the community was good, it was not error to permit the State’s attorney on cross-examination to ask the witness if defendant had not at one time been a drunkard and had taken the whiskey cure, nor was an affirmative answer to the inquiry prejudicial.
    2. CONTINUANCE: Absent Witness: To Disprove Immaterial Issue. It is not essential |o a conviction of the crime of abortion that the pregnancy of the woman be established. Therefore, where the second count of the information charged pregnancy of the prosecutrix, but the jury acquitted defendant under that count, but found him guilty upon the first count, which did not charge pregnancy, it was not error to deny his application for a continuance based on the absence of a physician who if present would testify that prosecutrix did not pass a foetus the day after the operation was performed by another physician, as claimed by her, but that he made an examination of the alleged foetus and found it to be merely a blood clot, superinduced by cold and delayed menstruation, and that he so informed her. Such testimony would merely have been corroborative of the fact which the jury by their verdict found.
    3. FAILURE TO INSTRUCT: No Assignment in Motion. An assignment on appeal that the court erred in failing to instruct that evidence of another offense committed by defendant in the abortion case, namely, the procuring by him of medicines from other - physicians for the use of prosecutrix, should be considered only as bearing on the question of intent, cannot be considered, if the failure' to so instruct is in no manner assigned as a ground of . error in the motion for a new trial and is in nowise preserved in the bill of exceptions.
    4. ARGUMENT TO JURY: Failure of Defendant to Testify. A statement by the attorney for the State in his argument t,o the jury in a prosecution for abortion that “every fact and circumstance stand absolutely uncontradicted; the only means by which they endeav'or to indirectly contradict the fact of this charge is to bring witnesses in here to lie and vilify the character of this girl; ' that is not bringing testimony here which says there was no trip to Mexico, there wasn’t intercourse, there wasn’t any use of in•struments,” is not such a comment oh the failure of defendant to testify as would warrant a reversal.
    Appeal from Audrain Circuit Court. — Now.. Ernest 8.. Gantt, Judge.'
    Affirmed. .

      Frank J. Dwall, Clarence A. Barnes and- Hostetter & Haley for appellant.
    (1) The improper conduct of counsel for the State has met fearless and just disaproval in the .appellate court. State v. Webb, 254 Mo. 434; State v. Spivey, .191 Mo. 112. The prosecuting attorney should not express 'his belief in the defendant’s guilt. State v. Hess, 240' Mo. 160; State v. Webb, 254 Mo. 434; State v. Spiveg, 191 Mo. 112. The prosecuting attorney should not express his belief in the defendant’s guilt. State v. Hess, 240 Mo. 160; State v. Webb, 254 Mo. 414; State v. Helton, 255 Mo. 182; State v. Phillips, 233 Mo. 299. (2) The action of the counsel for the State in proving over. the objection of the defendant, but with the sanction of the court, that defendant had at one time been a drunkard and had taken the whisky cure, is sufficient in and- of itself, absent all other errors, to reverse the judgment. It is well settled law.that the character of the defendant on trial cannot be assailed by the State by proof of specific acts of wrongdoing or of delinquency. State v. McDonough, 232 Mo. 235; State v. Teeter, 239 Mo. 435. (3) The continuance of the case on the ground that Dr. E. M. Bartlett was'an important witness, should have been granted. While it is in a measure discretionary with the trial court as to granting continuances, yet the policy of the law is to give a defendant a “ square deal.” Cases of conviction have been reversed by this court because accused was not granted a chance to get his important witnesses present and in court. State v. Sherrpll, 198' S. W. 464; State v. Flick, 267 Mo. 34. (4) The evidence that defendant had procured medicines and consulted other doctors in Clarksville for the prosecuting witness was not proof that he was guilty of the offense charged in the indictment and the jury should have been told by instruction that'such evidence of other offenses should be considered by them as bearing only on the question of intent and motive. State v. Hyde, 234 Mo. 224. If the character of a crime is such as to show on itsi face the intent, then evidence of other crimes is admissible. State v. Bersch, 207 S. W. 814.

      Frank W. 'McAllister, Attorney-General, 8. E.. Shelley and Henry B. Hunt, Assistant Attorneys-General, for respondent..
    (1) The question of continuance is largely within the discretion of the trial court, and that court’s action will not be interferred with unless it appears that there has been an abuse of discretion. State v. Cain, 247 Mo. 705; State v. Cochran, 147 Mo. 516; Poplar Bluff v. Meadows, 187 Mo. App. 456. Diligence must be shown in trying to obtain the presence of a witness. Sec. 5204, R. S. 1909 ; State v. Kindred, 148 Mo. 281; State v. McKenzie, 228 Mo. 397; State v.' Pagels, 92 Mo. 308. (2) The evidence of the State tending to show that appellant consulted physicians in Clarksville, was not evidence of other crimes. This evidence tended to disclose the relations of prosecutrix and appellant which thereafter culminated in appellant procuring- Dr. Hawkins to perform the operation. l'Cyc. 186 (5); 1 C. J. 329 .(97) d; 1 R. C. L. p. 82, sec. 19. (3) Having-enjoyed permission to successfully ask wholly incompetent and improper questions on a certain subject, it does not lie in the mouth of the appellant to complain of error in permitting- the State to pursue a similar course. State v. Grubb, 201 Mo. 610-; State v. Palmer, 161 Mo. 175; State v. Harney, 168 Mo. 197; State v. Hutchinson, 186 S. W. 1001. (4) The specific trait of character of appellant involved in this case, was his character for morality. The court permitted appellant’s witness, Berkeley Wells, to testify over the State’s objection that the reputation of appellant for “morality, peace, quietude, truthfulness and general standing in the community,” was good. State v. Anslinger, 171 Mo. 608. (51) Mr. Buffington did not comment upon the failure of the appellant to testify. B. of Ex., 353, 354; State v. Preston, 77 Mo. 296; State v. Hughes, 258 Mo. 271; State v. Gordon, 253' Mo. 518'; State v. Faught, 140'. Mo. App. 373. (6) The prosecuting attorney had a right to tell the jury, as a matter of argument, that the “circumstances in this case speak for themselves and alone are sufficient to be damaging and damning against the defendant.” State v. Rogers, 253 Mo. 415; State v. Stark, 72 Mo. 39; State v. Gartrell, 171 Mo. 512; State v. Mallon, 75 Mo. 357.
   WILLIAMS, P. J.

Upon an information charging him with the crime of “felony of abortion,” defendant was tried in the Circuit Court of Audrain County, found guilty, and his punishment assessed at one year in jail and á fine of one thousand dollars. Defendant has duly perfected an appeal.

Upon the part of the State the evidence tends to establish the following facts:

The crime occurred about the fifteenth of F'ebruary, 1917, in Mexico, Missouri, At this time and for some six months prior thereto the defendant and prosecutrix resided as neighbors in Clarksville, Pike County, Missouri. Defendant, who was then over thirty years of age, resided with his mother, and the prosecutrix, who was then about nineteen years of. age, resided with her mother. Prosecutrix was a student in the Clarksville high school, and defendant was interested more or less in farming. The two families were quite friendly. Defendant and prosecutrix were in each others company frequently, became engaged to be married and from about the middle of Dtecember, 1916, until the middle of the following February, frequently indulged in acts of sexual intercourse. Most of the acts of sexual intercourse occurred at the barn on the rear of the lot where defendant lived.

In January, 1917, prosecutrix missed her monthly period of illness. She communicated this fact tó defendant. He told her that he thought it was due to the fact that she had had a cold and that he thought she would be alright in a short time. One week went by with no change in the condition, and appellant procured some medicine from a local physician. This- medicine failed to produce any results. More medicine was procured from the local doctor, but without results. Several days afterwards appellant procured medicine from a physician in Louisiana, Missouri, but this likewise failed to bring about the menstruation.

Defendant then requested prosecutrix to tell her mother about her condition, stating to her that if her mother would consent a local physician would perform an operation upon her. Prosecutrix, however, did not tell her mother at that time. Later appellant informed prosecutrix that a local physician wanted to see her mother and requested her mother to come to his office that afternoon. The prosecutrix’s mother went to see the doctor and refused to give her .consent to an operation, and thereupon the doctor refused to perform the operation.

The mother of the prosecutrix requested defendant to marry prosecutrix, but defendant told her that he could not, because he did not want to lose his own mother.

Defendant stated that he would go to Louisana the next day and find a doctor who would perform the operation. A day or so later defendant told prosecutrix that he had found a doctor at Louisiana who would perform the operation . Defendant gave prosecutrix twenty-three cents for railroad fare to Louisiana, and the next morning defendant and prosecutrix boarded a train for Louisiana, but the defendant, stating that he did not-wish to be seen with' prosecutrix, rode in a different coach. Upon arriving in Louisiana defendant gave prosecutrix fifty cents with Avhich' to buy her dinner, and then informed her for the first time that he was going to take her to Mexico for an operation.

Later that day they went by railroad to Mexico. Upon arriving there defendant went out to inquire the way to Doctor Hawkins’ office, and shortly thereafter came back to the depot and accompanied prosecutrix to the office of Doctor Hawkins, a duly registered physician. ‘ .

When they arrived at the doctor’s office he was alone. Defendant said to the doctor, ££Here is the little girl, Doctor; she is a mighty fine little girl.” The doctor replied saying, ££I would think that if you had not told me; I think well of all the girls.” After getting warm prosecutrix went into the back room of the doctor’s office. Defendant at the request of prosecutrix remained in the front office.

In the private room the doctor placed the prosecutrix in an operating chair. Prosecutrix told the doctor that she was two months advanced in pregnancy. The doctor by means of instruments performed an operation upon her for the purpose.of producing an abortion.. Defendant paid the doctor twenty-five dollars for performing- the operation. Prosecutrix became nervous and sick at her stomach, and rested upon a bed in the doctor’s office until train time.

On the train going to Louisiana that evening prosecutrix became quite sick and had to be helped from the train at Louisiana. There she lay on the floor of the depot while defendant went to get an automobile to take them to Clarksville. They arrived at Clarksville about ten o ’clock that night.

The next morning prosecutrix, according to the doctor’s directions, removed the packing from her sexual organs. About nine o’clock that morning a foetus passed from her. The next morning prosecutrix suffered severe cramping spells and a local physician was called to give her some medicine. This local physician was shown the foetus and said, “Well, that’s it alright.”

Prosecutrix was in good health when she went to the doctor’s office in Mexico, and she had not been advised by any physician that it was necessary to her health or the health of an unborn child that she have the operation performed.- The trip to Mexico -was made on Thursday and prosecutrix testifies that on the following Wednesday she was back in school.

The evidence upon the part of the defendant tended to prove the following facts:

The prosecutrix returned to school the Tuesday following the operation and remained at school the balance of the week. Defendant offered evidence tending to show that the reputation of defendant for “peace, quietude, truth and morality in general standing in the neighborhood was good,” and that the reputation of the prosecutrix for “virtue, chastity, morality and veracity” was bad, and that the reputation of the prosecutrix’s mother along the lines above mentioned was not very good.

I. It is contended by appellant that the court erred in permitting the State to prove that defendant had at one time been a drunkard and had taken the whiskey cure. It will be necessary to explain how this question arises upon the record in order to fully understand its . significance.

Upon the trial the appellant produced as a witness Berkely Wells, who, over the State’s objection, was permitted to testify as to the reputation of the appellant “for morality, peace, quietude, truthfulness and general standing in the community.” . The witness upon his direct examination testified that appellant’s reputation in the above behalf was good. Thereupon the State’s attorney, in cross-examining witness Wells, asked the witness if he hadn’t heard that the appellant-used to be a drunkard and at one time had taken the whiskey cure. The witness answered in the affirmative.

The above mentioned cross-examination of defendant’s character witness was; entirely permissable as a proper inquiry into the source and the kind of information which the witness had on the subject about which he had testified in his direct examination. [State v. Crow, 107 Mo. 341, l. c. 345, et seq.; State v. Thorn-hill, 174 Mo. 364, l. c. 370; State v. Brown, 181, Mo. 192, l. c. 213.] We therefore rule the above point against appellant’s contention.

II. It is further contended that the court erred in overruling appellant’s application for a continuance.

Appellant asked for a continuance on the ground that Dr. E. M. Bartlett, an important witness, was in the military service of the United States and was unable tó be present to testify upon the trial. The application stated that if present this witness . , , , ,n would testify m substance that the prosecutrix did not pass a foetus as claimed by her the day after the operation was performed upon her but that he made an examination of the alleged foetus at the request of the mother of prosecutrix and found it to he merely a blood clot, superinduced by a cold and delayed menstruation, and that he so informed prosecutrix and her mother.

It was not essential to a conviction in this ease that the pregnancy of prosecutrix he established. [See Sec. 4458, R, S. 1900.]

The first count of the information did not charge that the prosecutrix was pregnant. The second count of the information did charge the pregnancy of the prosecutrix. But the jury acquitted appellant under the second count and found him guilty under the first count. It is therefore evident that the jury found that the prosecutrix was not pregnant. .This being true it is difficult to see how appellant could have been injured by the absence of this witness whose testimony would merely corroborate the finding which the jury in fact made in the case.

Aside then from the question of the lack of diligence shown by defendant in procuring the testimony of this witness in deposition form before he was inducted into the army, which in and of itself may have justified the ruling’ below (a point not necessary here to determine), we are of the opinion that the action of the court in overruling the application for a continuance did not in any manner result in injury to the appellant.

III. Appellant’s next contention, as we understand it, is that the court erred in failing to instruct the jury that evidence as to the other offense '■ ^16 procuring by appellant of medicine from other physicians for the use of prosecutrix) should be considered by them as bearing only on the question of intent.

Concerning this point it is sufficient to say that the failure to give such an instruction is in no manner assigned as ground of error in the motion for a new trial. Nor is the point in any manner preserved in the bill of exceptions. Under such circumstances the point is not saved for appellate review. [State, v. Wansong, 271 Mo. 50, l. c. 58, and cases therein cited.]

IV. During the argument before the jury the attorney for the State said:

“Why gentlemen of the jury, every fact and circumstance stands absolutely uncontradicted. The only means by which they endeavor .to indirectly contradict the fact of this charge is to bring- witnesses in here to lie and vilify the character of this girl. That is not bringing testimony here which says there was no trip to Mexico, there wasn’t intercourse, there wasn’t any use of instruments.”

Appellant contends that the foregoing statement was a comment on the failure of .the appellant to testify in the case, and for that reason the judgment should be reversed.

We are unable to agree with, this contention. Only by a strained construction could it be said that this language referred to appellant’s .failure to take the stand. Very similar statements have'been before this court and have been held not to be subject to the objection now made. [State v. Hughes, 258 Mo. 264, l. c. 271; State v. Gordon, 253 Mo. 510, l. c. 518.]

Further complaints are made concerning the arguments and conduct of the prosecuting attorney. We have carefully examined all of the voluminous matter of which complaint is mia.de but find no matter in that regard which would justify a reversal of the judgment.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: WILLIAMSON, J.

license: Public Domain

text:
    THE STATE v. NADINE FRISBY, Appellant.
    Division Two,
    December 4, 1919.
    1. MURDER: Sufficient Evidence: Passion of Jury. Where the guilt of defendant depends on the truth of the testimony of an accomplice, the product of a mind untroubled by any trace of conscience and unstung by any suggestion of remorse, yet so startling in its crude simplicity and so vivid in its-graphic realism, that, if it is a manufactured lie, it becomes a form of fiction far above the expected creation of so uncouth a mind, and if true it establishes defendant’s guilt beyond question, it was the province of the jury to say whether his story was fact or fiction, and there being nothing to indicate prejudice or passion on their part, their verdict of guilty will not be set aside on the ground that the evidence was not sufficient to sustain it.
    2. EVIDENCE: Admitted Without Objection: Motion to Strike Out. A party cannot sit by and permit questions to be answered without objection, and then except to the answer and present it for matter for review in the appellate court. So where three witnesses, who knew the State’s principal witness in former years in the county in which he then resided, but did not know him in the county where the crime was committed, were permitted, without objection, to testify that his reputation for truth, veracity and morality were good at the time they knew him, an exception to their ' answers will not be reviewed on appeal.
    \ppeal from Cooper Circuit Court.- — Hon. Hopkins B. Shewn, Judge.
    Affirmed.

      W. G. Pendleton and Boy D. Williams for appellant.
    The trial court erred in permitting the State to introduce evidence to show good reputation of the State’s witness John Jones in Boone County three years before the trial. This evidence was objected to by defendant’s counsel and exception was taken to its admission by the court. James Carter secretly disappeared from Columbia in Boone County, migrated to Pilot Grove in Cooper County and changed his name to John Jones when he crossed the Missouri River. Evidence to support the credibility of a witness must be confined to the time he testifies, and in the neighborhood where he then resides. State v. Summar, 143 Mo. 221; Wood v. MattheAvs, 73 Mo. 447. Reputation three years previous to the trial is too remote.' Wood v. Matthews, 73 Mo. 447.

      Frank W. McAllister, Attorney-General; S. E. Skelley and H. B. Hunt, Assistant Attorneys-General, for respondent.
    The trial court did not err in permitting Whiteside to testify that the reputation of State’s -witness Jones, for truth, morality and virtue was good, during his residence in Boone County three years before the trial. Underhill Crim. Ev. (2 Ed.) p. 429, sec. 236'; 5 Jones on Ev. sec. 859, p.. 256; 40 Cyc. 2597, b, o; Wood v. Matthews, 73 Mo. 482; State v. Summar, 143'.'Mo. 230; State v. Pettit, 119 Mo. 41.4; State v. McLaughlin, 149 Mo, 31; State v. Miller, 156 Mo. 84; Lindsey v. Bates, 223 Mo. 310.
   WILLIAMSON, J.

The appellant, Nadine Frisby, upon an information filed in the Circuit Court of Cooper County, charging her with the crime of murder, was convicted and sentenced to imprisonment in the penitentiary for life. From that sentence this appeal is taken.

It is urged that the evidence is insufficient to support the verdict. The only other question presented in this record is one concerning the admission of evidence relating to the reputation for truth and .veracity of one John Jones, aUa.s Jim. Carter, a witness for the State, who was at the time of the trial confined in the Missouri Penitentiary under a life sentence for the actual killing of the same person for whose murder the appellant was convicted. No other questions are presented in this court. The facts are substantially as follows:

The appellant, Nadine F'risby, was the wife of one James Frisby. John Jones was a friend of the appellant and her husband, and was a frequent guest at their home. Appellant and her husband lived in the town of Pilot Grove, and Jones was employed by a farmer named J. J. Maddox, who lived about a mile southeast of Pilot Grove. The deceased, James F'risby, a negro, was the husband of appellant and was employed s a janitor in the Pilot Grove Bank. Jones and appellant are also both negroes. Early in the morning of the 19th day of May, 1917, the dead body of James Frisby was found at the back door of the bank. There were two gashes across the head, the body was lying upon its face, and the hip pockets' of the trousers worn by the deceased were turned inside out. An iron bar weighing about seven pounds, anti apparently a part oí a buggy axle, was found some ten or fifteen feet from the body. The wounds above mentioned had apparently been inflicted with this weapon. The deceased was usually paid on the 18th day of each month. No money was found on the body. The night before the killing, which apparently occurred some time about 4:80 in the morning of May 19th, John Jones had stayed at the home of appellant and her husband, James Frisby. Shortly after the murder was discovered, suspicion was directed to appellant and John Jones, and they were arrested and charged with the murder. On the day upon which the tragedy occurred, a negro preacher had a conversation with appellant before she was arrested, in the course of which, as he testifies, she inquired whether or not it would be advisable for her to employ an attorney, since she felt sure that she would become involved in the matter before it was all over, and also inquired whether or not a law had been passed in this State abolishing capital punishment. Jones, it seems, had been a frequent visitor at the Frisby. home for a year or two previous to the commission of the offense' charged, and appellant did his washing for him. They frequently associated together among people of their race, and were apparently regarded as being close friends. Jones usually slept at Mr. Maddox’s home, but on the night that the tragedy occurred he did not sleep there. He arrived at Mr. Maddox’s home at about twenty minutes before five o’clock on the morning of the 19th day of May, 1917. Jones was the principal witness for the State, having been brought back from the penitentiary to testify.

In substance, Jones’s testimony was to the effect that he had formerly lived in Boone County; that ho was married and had a wife and several children; that his name was James Carter; that a year or two before the tragedy occurred he deserted his wife and children, left Boone County and came to Cooper County; that be changed Ms name while crossing the river and assumed the name óf John Jones; that he became acquainted with appellant and her husband shortly after he removed to Cooper County, and was frequently a guest ir> their home; that he had never had any trouble with the deceased, and had no ill feeling toward him. According to his story, on the night before the murder occurred, he was at Frisby’s house and talked with the deceased there about eight or nine o’clock in the evening. Appellant was then away from home. Jones inquired for her, was told where she might be found, and went in search of her. He found her some distance away from home, and told her that he wanted to get his clothes. He and she started through an alley to return to. the Frisby home, walking very slowly. As soon as they were alone, appellant suggested to Jones that she had a proposition to make to him,.. What then ensued is best told in his own language:

“I says: ‘A proposition?’ She says: ‘Yes.’ I says: ‘Allright, what is that?’ ‘Well,’ she says, ‘the proposition I want to make with you, to make away with the old man.’ ‘Now, listen a minute! I am going to stop a little on that.’ That is, me hesitating with her question.
“That is, not that I am not going to talk, but hesitating with her question — answering her. [He had stood mute when called as a witness on a previous trial of this case.] I kinda walked along, you know, hesitating, not saying anything, and when I says anything, I says: ‘Well, why is that?’ ‘Oh’, she says, “I am tired of him.’ She says, ‘I don’t want him.’ She says, ‘I am tired of the old bald-headed son-of-a--, anyway.’ I says: ‘Well, if you don’t want him and tired of him',’ I says, ‘why don’t you leave him?’. I says, ‘If you don’t want .to be with him,’ I says, ‘get you a divorce.’ ‘Oh,-’ she says, ‘I don’t want to do that.’ She says: ‘I want this here money.’ I says: ‘Oh, yes! Money! I see! Well,’ I says, ‘what money?’ She says: ‘Insurance.’ I says: ‘Well,’ I says, ‘If you' want this money, then, insurance,’ I says, ‘how much is it?” She says: ‘About a thousand dollars; somewhere like that.’ I says: ‘About a thousand dollars. You don’t know then whether it is a thousand dollars, or not?’ She says: ‘No, I don’t know exactly. It is somewhere like that. ’ I says: ‘I guess then it is somewhere about nine hundred and fifty, seventy-five or eighty dollars; yes, something like that. Uh, huh. I see!’ Well, we were still walking along very sIoav. I says: ‘NIoav, let me tell you,’ I says, ‘I don’t see how in the world that I could do anything like that.’ ‘Well,’ she says, ‘You can do that very easy.’ I says: ‘Well, I don’t see how.’ I says: ‘Nothing to do nothing with; aint got nothing.’ I says, ‘How are you going to do anything like that when, you aint got nothing to do anything with.’ I says: ‘Another thing, I don’t know no way.’ ‘Oh,’ she says, ‘you danged fool, you, are you crazy?’ She says: ‘I can show you and tell you, too.’ ‘Uh, huh!’ Well, we walks: along very slow still yet. She says to me, she says, ‘You know he gets up in the morning early.’ I says: ‘Yeh,’ I says: ‘About what time?’ She says: ‘He gets up' in the morning you see about four o’clock. He has got to get over to the bank to clean Up.’ I says: ‘Yeh.’ I says: ‘Well, you must remember that this day and time uoav, at this time of the year, at four o’clock is very near daylight. Time for people to be getting up.’ I says: ‘But,- furthermore, you see at that time in the morning how in the world do you suppose I was going to do anything like that. People would be up: and around and lights would be shining, and they, would see me.’ ‘Why,’ she says, ‘Set the time up.’ — ‘Uh, huh! Set the time up!’ I says: ‘Well, how Avould you go about doing that?’ ‘Why,’ she says, ‘I will show you.’ She says: ‘Have you got your watch?’ I says: ‘Yes, I have got my watch.’ Well, we set the time up. . . . We still hadn’t got down .to the house yet. We were still walking so very slow, you see, we were walking as slow as a yfigi could walk, going along through the chute. Well, we got to the yard gate, going through the gate between the yard and the house, and between the gate and the house door we stopped and stood there and talked. She says: ‘Well, have you g’ot your mind made up yet?’ I says: ‘No, it isn’t made up. yet.’ She says, ‘Well, you ought to get it made up so we will get him out of the way.’ I says:- ‘Well, it is j'ust like as I have told you. I aint’s got nothing and don’t know no way.’ She says: ‘Well, I have told you the way.’ I says, ‘Well, how are you going to do anything when you aint got nothing?’ ‘Oh,’ she says, ‘I seen a piece of iron laying over there by the side of the fence the other day. ’ I says: ‘Over where?’ She says: ‘Between the house and the fence there.’ ‘Uh, hula!’ So, well I looks down, you see, so, well, I goes over that avay a little piece and made a step, or so. Well, I begin to feel between the fence and the house. . . . Well, I feels over toward the side of the house. About that far from the house (indicating), kinda down along the side there, I finds a piece. Well, I picks it up. She says: ‘Well, did you get it?’ I says: ‘Teh.’ So I says: ‘Now, then, where will I put it?’ She says: ‘Oh, lay it down' over there by the side of the gate, in order — by the side of the gate so when you went out of the gate you could pick it up.’ Well, we goes in the house. I sets down in a chair by the side of a little stand table. She was standing up out in front of me in the floor. So she says: ‘Have you got your mind made up. yet?’ I says: ‘No, my mind aint made up'yet.’ She says, ‘Well, make it up.’ I says. ‘Well — ’ she says: ‘You got your watch?’ I says: ‘Yes.’ She says: ‘Where is it at?’ I says: ‘Here it is. ’ And pulled it out of my pocket. . . . She says: ‘Now, take and run it an hour fast.’ I says: ‘Run it an hour fast?’ I says, ‘Well, I don’t know hardly hoW to do that. ’ She says: ‘ Oh, hand it here. I will do it. ’ I says: ‘Oh, no. I will do that.’ ”

Jones accordingly set his watch up about an hour, and he and the appellant continued talking until somewhere about eleven o’clock. The unsuspecting host and husband had gone to bed in an adjoining room while they completed the plans for his slaughter. Twice during the night appellant called to Jones and asked what time it was, and Jones announced the time as shown by his watch, which was an hour fast. Deceased was thus led into going to work an hour earlier than usual. At about 3.30 that morning, according to the correct time, but at about 4:30 a. m. as shown by Jones’s watch, he and deceased prepared to go to work. Jones left the house first, picked up the iron bar and went around to the back door of the bank, where he knew the deceased was accustomed to come in the performance of his duties as janitor. Shortly afterwards deceased'came to the back door, and Jones struck him, twice in the head with the iron bar, instantly killing him, searched his pockets for money and apparently found none, and went immediately to the home of Mr. Maddox, about a mile from town. In the course of their conversation on the night of the killing, Jones testifies that appellant said she would give him., Jones, about two hundred and fifty dollars of the insurance money, and he could leave the country, and that she thereafter would come to him. An iron bar was offered in evidence, and identified by Jones as being probably the instrument of death.

While in jail and after he had been tried and sentenced to the penitentiary, Jpnes wrote a letter in which he said, in substance, that the prosecuting attorney had offered him certain inducements if he would implicate appellant in the murder, but that she was innocent. This letter was delivered to one of appellant’s attorneys. After being sent to the penitentiary, Jones wrote a letter to one of appellant’s counsel, in which he reiterates, in substance, his statements in the former letter, and again says that appellant had no connection with the crime. On the witness stand he explained that neither of these letters was true; that he wrote the first at the persistent solicitation of another negro, who was apparently a friend of appellant and was confined in the jail with Jones; and that he wrote the second letter at the instigation of appellant lxerself. It appears that she had had some communication with him while he was still in the jail. The statement that any inducement had been held out to Jones to implicate appellant in the affair was denied by James R. Miller, who was with the prosecuting attorney at the time he visited Jones at the jail.

The evidence for the appellant consists chiefly of her own testimony, which in substance was a complete denial of all of the incriminating portions of Jones’s evidence.

Appellant presented the two life insurance policies which the deceased had to the proper companies, and it seems that one of them would have been worth about one hundred and fifty dollars “if deceased had not been killed the way he was,” and the other policy was worth about seven dollars and a half. The undertaker collected the $7.50' and applied it to the payment of the funeral expenses of the victim. From a commercial standpoint, the enterprise was a failure'.

In rebuttal, the State called J. L. Whiteside, T. A. Yallandighan, and John L. Fisher, who testified that they had known Jones for several years during his residence in Boone County, and that his reputation for morality, truth and veracity was good at that time. On cross-examination they all testified that they had not known anything of him since his removal to Cooper County about a year and a half before the tragedy occurred. One of them did not profess to have known anything of him for three years, and another for five years preceding the tragedy. Neither of them professed to know anything about his reputation in Cooper County, nor at the time of the trial. The admission of ■this evidence as to the reputation of this witness is assigned as error by- appellant in this court, and she also insists that the evidence is insufficient to support the verdict.

Concerning this evidence, the record is as follows: When the witness J. L. Whiteside was put upon the stand by the State, he was asked if he knew the general reputation of the witness Jones “for truth, veracity and morality.” To this question the defendant objected and the objection was sustained. The witness was then asked what was the reputation of the witness Jones for morality only. No objection was made to this question. During the cross-examination of the witness, the court announced that if the prosecution would avow its intention of putting a witness on the, stand to prove that Jones had a good reputation for truth and veracity in 1917, the year in which the tragedy occurred, then the court would permit the testimony as to Jones’s reputation for truth and veracity for three years prior thereto to be introduced as corroboration. The prosecuting attorney avowed his intention of introducing such evidence (and later did so), and the court then asked the witness Whiteside, referring to Jones: “Well, what was his reputation for truth and veracity in Columbia three years ago?” and the witness answered that it was good, as far as he knew. There was no objection to this action on the part of the court, but after the question had been asked and answered, the record shows that “the defendant by her attorneys then and there duly excepted at the time, and still excepts.”

T. A. Yallandighan and John L. Fisher were then called as witnesses by the State and examined as to the general reputation of the witness Jones for truth, veracity and morality. No objection was made to this evidence. These are the three witnesses to the admission of whose evidence objection was made. Appellant’s reputation for morality, truth and veracity was shown to- be bad.

We think this is a sufficient statement of the facts.

This is the second appearance of this case in this court. The opinion on the former appeal is not yet published in our reports, but may be found in 204 S. W. 3.

On the former trial, the witness..Jones stood mute. Absent his testimony, the conviction of appellant was reversed. At the last trial Jones testified and we have set out Ms evidence at some length, partly as a convenient method of stating the facts, partly because it is a curious, not to say morbid, study in psychology, but chiefly because it is assailed in 'appellant’s brief as “incredible and fantastic,” and insufficient to support the verdict. The jury did not find it incredible, and it was the special province of the jury to pass on that question. Nevertheless, ‘if the testimony of this witness — and it is practically all of the evidence relied upon by the State to induce and uphold the conviction — is of so weak a nature that it wholly fails to sustain the charge of murder, or necessarily indicates that a verdict based upon it is the result of passion and prejudice, then the verdict should be set aside. Appellant challenges our attention to that point, and we hence proceed to a study of that testimony.

It is a strange tale, the product of a mind untroubled by any trace of conscience, and unstung by any suggestion of remorse; startling in its crude simplicity, and yet so vivid that it grips attenton. The mind cannot shake it off. To say that it is all fiction, a lie manufactured, with or without assistance, by this uncouth murderer, is to credit him with an artistic ability, an insight into the workings of the human mind, and a graphic realism which would place him on a plane not far below that of the author of Treasure Island, or of The Murders of the Rue Morgue. In short, it is a greater strain upon credulity to believe that this ignorant negro manufactured this hideous tale than to believe that he simply told the truth. We can believe that this horror-story is the product of his memory, but not of his imagination. Note its fidelity to detail. When the crime is first suggested, observe how his slow mind gradually absorbs the plan to murder and the arguments in its favor. “She says: ‘I want this here .money.’ I says.- ‘Oh, yesl Money! I see! Well,’ I says, ‘if you want this money, then, insurance:’ I says, ‘how much is it?’ ” ITe is told, and he speculates on the amount. “ ‘Uh-huh, I see!’ We were still walking so very slow, you see, we were walking as slow as a pig could walk, going along through the chute.” In the darkness the plotting pair approach the house, and the woman suggests where the iron bar may be found. “Well, I begin to feel between the fence and the house. . . . Well, I feels over toward the side of the house. Blinda long down the side there, I finds a piece. Well, I picks it up ” It is the instrument of death. Then come the suggestion of setting his watch up and the slow dawning of that thought; the woman’s fierce impatience; the pre-conceived calls through the night, and, finally, just before he starts upon his murderous errand, he pictures his accomplice as lying upon her stomach in bed and secretly motioning to him to hasten his departure, while their intended victim,, unmindful of impending doom, stoops to tie his shoe laces!

It was for the jury to say whether the story was fact or fiction, but certainly there is here neither a total failure of evidence, nor evidence so weak as to impel the conclusion that belief in it is the result of prejudice or passion. That being the case, we accept the finding's of the lawfully constituted triers of fact, and rule this point against appellant. [State v. Gulley, 272 Mo. 484; State v. Underwood, 263 Mo. 677; State v. Snyder, 263 Mo. 664.]

Small space is necessary in which to dispose of appellant’s complaint concerning the testimony of the character witnesses. The record shows that evidence was admitted without objection. A party cannot sit by' and permit questions to be answered and then, without preliminary objection, except to the answer and thus present that matter for review here. [State v. Harris, 199 Mo. 716; State v. Sykes, 191 Mo. 62; State v. Rapp, 142 Mo. 443; State v. Marcks, 149 Mo. 656.]

No other error is assigned, and our examination has revealed none. The judgment is affirmed.

All concur.


author: MOZLEY, C.

text:
    THE STATE v. JOHN L. DOOMS, Appellant.
    Division Two,
    December 4, 1919.
    1. PRELIMINARY HEARING: Waiver. Failure to accord to defendant' a preliminary hearing before he is placed on his trial for murder is an irregularity, which may be waived; and if he does not raise the point at the time he is arraigned and pleads not guilty, or at any time until he files his motions for a new trial and in arrest, he waives the right.
    2. MURDER: Information in First Degree: Election to Prosecute for Second Degree. Although the information charges defendant with murder in the first degree, the prosecuting attorney may elect to prosecute for murder in the second degree; and although the evidence unquestionably establishes murder in the first degree, defendant cannot on that account complain of a conviction of murder in the second degree and a verdict of twelve years’ imprisonment.
    3. EVIDENCE: Bloodhound: No Objection: Instruction. Deceased was shot a little after dark through a window while sitting in a room with his family. About two o’clock in the afternoon of the following day a bloodhound trailed the tracks of a man from the side of the house to defendant’s abode in the neighborhood. No objection was made to the evidence when offered. The court instructed that "the jury are the sole judges of the weight- of the evidence and the credibility of the witnesses,” hut gave no specific instruction as to the weight to be given to the testimony concerning the dog’s actions. Held, first, that failure to object to the admission of the testimony at the time it was offered was a waiver of any objection thereto; and, second, the assignment in the motion for new trial that the “court failed to instruct the jury as to the weight of the testimony given against defendant by the bloodhound” does not amount to an assignment that the court failed to-give a cautionary instruction on the point, but relates to the weight of the testimony, and the instruction given fairly and fully covered that assignment.
    4. INSTRUCTION: Reasonable Doubt: Refusal of Defendant’s. Where the court has given a correct instruction on the presumption of innocence and reasonable doubt in a murder trial, it is not error to refuse one on the same subject asked by defendant. Besides, the instruction requested by defendant in this case was argumentative and partisan, and should have been refused for that reason.

      5. MOTIVE: Sufficient Evidence. Testimony that because of some disagreement defendant and his wife had separated; that thereafter bitter feeling existed between him and the members of his family, especially towards her; that he left the community, and in a short time returned, stating that he had come- hack for a general settling up; that he told witnesses in the neighborhood that he would take his youngest son away with him, dead or alive; that the boys would not let him do it, but that he. would get as many of them as they would get of him; that two or three weeks before the homicide he bought a rifle, and was frequently seen thereafter watching his wife’s home while armed with the gun; and that at the time a gun was fired through a window after dark, his wife, his son who was killed, his said son’s wife and others of his children were in the room, is sufficient to establish motive.
    6. -: Shooting at One: Killing Another. The fact that defendant’s motive to commit murder was prompted by a desire to kill his wife is equally available against him if in attempting to kill her he killed his son. There being sufficient evidence to establish motive, the law, under such circumstances, will supply the motive if that were necessary.
    7. -: Not Necessary to Guilt. The defendant may be found guilty of murder, though no motive is made to appear. If the jury believe from all the evidence adduced that defendant did actually commit the crime charged, he should be found guilty, though the evidence fails to establish motive.
    8. JUEY: Murder: Selected by Sheriff: Waiver. Where defendant, convicted of murder in the second degree, took part in selecting the trial jury and made no objection to the manner in which they were selected, it is too late to object in his motion in arrest, for the first time, that a regular panel of jurors was not drawn by the county court, but that the twelve trial jurors were selected from a panel selected by the sheriff; for by this course he had waived such objection.
    Appeal from Douglas Circuit Court. — IIon. Fred Stewart, Judge.
    Aejbtemed.

      Frank W. McAllister, Attorney-General,- Clarence P. LeMire, Assistant Attorney-General, for respondent.
    (1) The evidence introduced was sufficient. "Where there is any evidence introduced tending to show the guilt of the defendant, the verdict of the jury will not be disturbed. State v. C’oncelia, 250' Mo. 425; State v. Sharp, 233 Mo. 298; State v. Tetrick, 199 Mo. 105. (2) Testimony showing trouble and hard feeling between the defendant and members of the Dooms family other than the deceased was admissible. It tended to show that defendant fired at random through the window with the intent to kill or injure some member of said family. State v. Edwards, 71 Mo. 312; State v. Payton, 90 Mo. 220; State v. Gilmore, 95 Mo. 554; State v. Renfro, 111 Mo. 589; State v. Pollard, 139 Mo. 220; State v. Sharp, 233 Mo. 269: (3) Failure to show motive, malice, or ill will is not ground for reversal. State v. Barrington, 198 Mo. 104. (4) The defendant made no request for an instruction on the weight aud credibility of the evidence of the “bloodhound;” neither did he save proper objections or exceptions to the testimony of the owner of said dog. ITence the sixth and seventh assignments in motion for new trial are without merit. (5) Election to try defendant for murder in the second degree, when the evidence shows murder in the first degree, affords no ground for complaint by the defendant. State v. Sohieller, 130 Mo. 515; State v. Rollins, 226 Mo. 534 ; 43 L. R. A. (N. S.) 815. (6) Failure to accord a preliminary hearing should have been brought to the attention of the court by proper motion before plea was entered by the defendant. It cannot be rais'ed for the first time in the motion for a new trial. State v. Keener, 225 Mo. 495; State v. Pritchett, 219 Mo. 703; State v. Glass-cock, 232 Mo. 290. (7) A challenge to the array must be in writing. In the absence of such challenge nothing is saved for- review in this case. ’ State v. Taylor, 134 Mo. 143.
   MOZLEY, C.

On the 3rd day of January, 1918, the prosecuting attorney of Douglas County, Missouri, filed an information in the circuit court of said county, wherein' the defendant, John L. Dooms, was charged with murder of the first degree, in that he shot and instantly killed Ms son, William A. Dooms, on the 3rd day of December, 1917. The State elected to prosecnte defendant under said information for murder in the second degree. It appears that a mistrial Avas had at the February term of said court and the cause was continued by the court to the April term, 1918. On the 8th day of April ,tlie same being the first day of said April term of said court, defendant Avas dnly arraigned for- murder in the second degree and entered his plea of not guilty, a jury AA’as duly impaneled, his trial had on the issue raised by his plea, and a verdict of guilty as charged was returned by the jury, fixing defendant’s punishment at twelve years imprisonment in the State Penitentiary. Motions for neAV trial and in arrest of judgment were filed, and overruled by the court, and thereupon defendant duly appealed the cause to this court.

For many years before the date of the tragedy in which William A. Dooms lost his life, defendant and his family lived on a farm in the eastern part' of Douglas County, Missouri. There were seven boys and one girl in the family, one of the boys being William A. Dooms. A few years before the homicide, on account of some disagreement, defendant and his wife had separated, and defendant boarded here and there in the community, while his wife and other members of the family continued to reside on the farm heretofore mentioned. Even after the separation it appears that continued bitterness and misunderstanding existed between defendant and his wife. A feAv months prior to the homicide the wife threatened to put him under bond to keep the peace; whereupon defendant left the community and did not return until shortly before the homicide. Two or three Aveeks before William A. Dooms was Idlled defendant purchased a 25-20 caliber Winchester rifle which belonged to his son, and after that was frequently seen about the premises carrying said gun.

On the 3rd day of December, 1917, the deceased, William A. Dooms, was residing at the home of his mother at said farm. He had been in Oklahoma for several months prior thereto, and had returned to Her home the latter part of the preceding October. About 5:30 or 6 p. m. on said date, the said William A. Dooms, his wife, his mother and several other members of the family sat about the fire in the southwest room of their house, engaged- in conversation. The day had been cloudy and darkness had fallen and a lamp had been lighted. There was a door that opened out upon a porch on the west side of the room where the family were sitting. A few feet south of the door was a window that communicated with’said room. While the family were seated and engaged in conversation, as above stated, a shot was fired from the outside through said window, which struck and instantly killed deceased. A 25,20 rifle cartridge was found on the porch, and footprints along the side of the porch. A 25-20 rifle bullet Avas extracted by the physician from the wound inflicted upon deceased.

On the following day at about two o ’clock p'. m. the services of a bloodhound were brought into requisition, and after trailing from the scene of the tragedy to where defendant was staying the bloodhound pointed him out as the one who had dropped the cartridge and made the tracks along beside the porch where deceased was killed. Defendant was then arrested and placed in the county jail.

The testimony further discloses that defendant desired the custody of the person of his youngest son and was laboring under the impression that the other members of the family were opposed to his having such custody. Some of the witnesses stated that defendant had said “that he was going to take the boy away;” that “there was going to be trouble, but he would get as many of them as they got of him.”

Following the facts a little more in detail, Josie Dooms, wife of Thomas Dooms, swore at defendant’s trial that he got the gun above mentioned from her home about three weeks before deceased was: killed; she said she gave the gun to him; defendant told her that he wanted the shells and she gave him nine, and he said that was all he would ever need.

E. W. McDaniels, who lived three-quarters of a mile from the Dooms home, saw defendant go down the road by said home, and when he arrived near the house he stopped in a brush and acted as though he was trying to get a view of something, and when he saw the witness he went off into, the woods.

William M. Miller testified that the cartridges taken from the person of defendant, nine in number, were turned over to him and that they were 25-20 caliber, and that in his judgment the ball taken from the body of deceased was a 25-20 caliber hall.

R. C. Buxton stated that defendant told’ him he was going to take his youngest son away from the rest of the family; “I am going to take the hoy away from them; the others won’t let me take him; I am going to take the hoy dead or alive; I will get just as many of them as they will of me.”

George Denton testified that in a conversation with' defendant prior to the shooting- of deceased of his family troubles, defendant said there would he one of the worst torn up families one had ever seen; that there Avould be a scatterment made out of them.

Mrs. Jennie Louallen testified that shortly before the killing, she saAV defendant in front of Mrs. Dooms home. He was standing there looking at the house with a gun on his arm, an d when he heard her coming turned around and walked away from the premises.

John Jones testified that two or three Aveelcs-prior' to the killing he found the Dooms house on fire, and in about one-lialf hour defendant came in and told Avitness that he had trouble with some of the family. Witness further stated that on the day folloAA’ing the fire he found some tracks over by.ihe garden on the Dooms premises, which looked as if they had been made by the shoe defendant was wearing at the time.

Claud Louallen testified that on Thursday before the killing he was at the* Collins home, and about nine p. m. put his horse in the barn to feed it and found a gun in the manger, and about eleven p. m;. when witness took his horse out the gun was gone. Defendant was there that night.

Dali Wallen, who lived about a quarter of a mile from the Dooms home, testified that on Friday prior to the killing defendant told him that he had come home for a general “settling’ up” and that they might kill him, but “they would not kill any more of him than he would of them.” Defendant was carrying a gun at the time of the conversation, but it was too dark for witness to describe it.

John Brown testified that on the day deceased was killed he saw defendant going down the road towards the Dooms home, and he was carrying a gun at the time.

Floyd Dooms, grandson of defendant, testified that he had just returned from school, and he with some other children were playing out at the barn near a pond; it was growing dark; saw a man whom he took to be defendant; that he was looking at the house; shortly he turned around and walked off down the fence away from the house, and deceased was ■ shot one-half hour later and killed.

Mr. Bumps testified that he was present when the dog trailed defendant to the place where he was arrested. Witness said to him, “This looks ldnda bad.” Defendant replied, “I haven’t got much liberty, and not very much longer to live anyway.”

Defendant.testified in his own behalf; admitted the ownership of the gun, having’ a few weeks before bought it from another one of his sons; admitted that he frequently carried it past the Dlooms home, and that he carried it with him the evening of the day that deceased was killed. He denied substantially all of the other evidence and positively denied shooting his son, the deceased.

Defendant filed no brief in this court, nor was he represented by counsel. In the lower court, however, his counsel filed a motion to arrest the judgment rendered on the verdict of the jury which reads, omitting- formal parts, as follows:

“1. Because the verdict, judgment and sentence is insufficient in law to incarcerate the defendant in the state prison.
“2. Because the State of Missouri should not have been permitted to elect, over defendant’s objection, to try the defendant for murder in the second degree, there having been no such offense committed . The offense for which defendant was tried, as shown by the evidence, was one of cold blood, by tying- in wait, and that of the most atrocious character.
“3. Because there was no evidence or showing of any kind that defendant was ever awarded a preliminary trial before being- placed • on trial in this court for murder.
“4. Because the record proper shows that defendant was not awarded a trial by-the regular panel of jurors drawn by the county court, but by a selected panel selected by the sheriff.”

And, also, filed a motion for new trial, which omitting- formal parts, reads as follows:

“1. Because the verdict is unsupported by evidence.
“2. Because the verdict is contrary to and against the laws given by the court.
“3. Because the court admitted and submitted to the jury incompetent, irrelevant and immaterial evidence for the State and against the defendant, to the great injury and damage to the defendant and over his objections thereto, and without which the jury would not, possibly, have found a verdict of guilty, in this, to-wit: The court at divers times during the progress of the trial and from divers witnesses, allowed said witnesses to testify of family differences between defendant and his wife and other members of his family, when at the time of such family differences the deceased was not a member of such family, was not present, was not shown to have known of such family differences, had married long* prior thereto, and had removed, and was either residing several miles from the D'ooms home, or was residing in a distant state; had never taken any part or interest whatever in said family affairs; was at all times friendly to and with his father, this, defendant, and took no interest either for or against his said father on account thereof; this evidence so admitted was understood by the jury, ño doubt, as tending to show malice, ill will, hatred and revenge on the part of defendant against deceased.
“4. Because the court permitted one witness to testify to some trouble between defendant and some neighborhood church people, over defendant’s objection, and in which deceased had no knowledge or connection or concern.
“5. Because the plaintiff (State) failed, utterly, to prove any motive on the part of defendant for the killing of his son. Failed to show any malice, ill will, revenge or purpose by defendant towards said deceased in taking his life; on the contrary, it was conclusively shown that there was the best of feeling and the usual parental affection by defendant toward deceased and by deceased toward defendant.
££6. Because the court failed to instruct the jury as to the weight of the testimony given against defendant by the bloodhound.
“7. Because the court should have stricken out all the testimony as to the bloodhound and his master, as the hound was not permitted to continue the trail from the residence of deceased to the defendant, and for the further reason'one of good character should not be convicted upon the evidence of a dog ¿is tending to form a link in the testimony against defendant.
‘ ‘ 8. The State, under the evidence, should not have been permitted to elect to try defendant for murder in the second degree, there being, absolutely no testimony to warrant same. The case was one of murder in the first degree, if anything, and did not warrant the trial of a lower offense. - The verdict of twelve years shows that defendant, in all probability, would not have been found guilty of the crime committed, under the charge in the indictment for murder in the first degree.
“9. Because it was not shown by the State that' defendant was awarded a preliminary trial before a justice of the peace before being placed upon his trial for murder.”

As above stated these motions were overruled by the court, exceptions duly saved and the case appealed to this court.

Broadly speaking, it will be observed that these motions deal more or less with generalities, speculations and arguments and, in the main, overlap each other. It will therefore be unnecessary to dispose of them, seriatim, but we will content ourselves with examining such points as appear necessary to a correct disposition of the case.

I. It is insisted that the case should be reversed because it is said that defendant was not given a preliminary hearing before a justice of the peace before he was put on trial of guilt or innocence in the circuit court. The record discloses that defendant was arraigned in the circuit court, entered his plea guilty, the jury was impaneled, the trial had, resulting in his conviction, and that he never once remembered that he was not given a preliminary hearing before a justice of the peace until he came face to face with the necessity for preparing a motion to arrest the judgment and for new trial. -Defendant could have halted the progress of his trial at any stage prior to conviction by simply raising the Doint that he had not been given such preliminary hearing, but contented himself by allowing the matter to ride, so to sneak, evidently intending to hold the point in reserve for future use should it become «necessary. It is true that the Revised Statutes 1909, Section 505.6, accords the right of preliminary examination to a defendant charged with the commission of a felony, but such right may be waived by conduct of the defendant. In the case of State v. Pritchett, 219 Mo. 696, this court held, upon this precise question, that: “It is not necessary that the information, charging murder, also charge that defendant had previously been accorded a preliminary examination, nor can the point that he was not given a preliminary hearing be raised in the motion in arrest. The point at most relates to an irregularity, and if not made before or during the trial will be considered waived.” On pages 703-704 of this case it is said: “Although the justice might, after a preliminary examination, discharge the prisoner, such action would in no way operate as a bar to an indictment, or to an information by the prosecuting attorney for the- same offense, and whatever the justice might do in the case is from a legal standpoint merely preliminary. The matter complained of was at most an irregularity. Besides, the point was not made before or during the trial, and it must, therefore, be regarded as having been waived.” In the case Ex parte George McLaughlin, 210 Mo. 657, it is held that the right to a preliminary examination may be waived at the time defendant is required to plead in the circuit court, and if he pleads the general issue “not guilty” he waives it. That is precisely what defendant did. When he plead the general issue of not guilty he waived his right to a preliminary hearing before a Justice of tlie Peace. We, therefore, overrule this contention.

II. Defendant urges, to say the least, a novel proposition, to the effect that he could not be proceeded against for murder in the second degree for the reason that if he was guilty of anything it was a brand of the most atrocious murder in the first degree, of lying in wait to hurl his unsuspecting while in the presence of his wife, mother and other members of the family, into eternity. lie says he should have been prosecuted for that. The prosecuting attorney doubtless had some reason valid in character for the course pursued, and why it was not done. However, there is no merit in this assignment. Murder in the first degree contains all of the elements of unlawful homicide and, hence, contains all of the elements constituting murder in the second degree, and no reason appears why the prosecuting attorney may not elect on the part of the State to prosecute for murder in the second. Such course furnishes no valid ground for complaint by defendant.

This court hhs held many times that where the charge in the indictment or information is murder in the first degree the State may elect to prosecute for murder in the second degree. In the case of State v. Rollins, 226 Mo. l. c. 531, this court said: “An indictment or information for murder in the first degree, under our statutes, embraces every grade and every degree of criminal homicide from the highest to the lowest. The prosecuting attorney in this case elected to proceed for murder in the second only. This he had the right to do.” In State v. Schieller, 130 Mo. l. c. 515, the same doctrine is announced, and also in the eases of State v. Mitchell, 237 Mo. 212; State v. Moxley, 115 Mo. l. c. 651; State v. Jones, 106 Mo. 302, and State v. Keeland, 90 Mo. l. c. 338.

We, therefore, rule this point against appellant and hold that the prosecuting attorney was well within his right under the law when he elected to prosecute defendant for murder in the second degree.

III. Defendant alleges error because the court “failed to instruct the jury as to the weight of the testimony given against defendant by the bloodhound,” and further complains because the whole of said testimony was not stricken out.

No objection was made by defendant as to the admission of this testimony to the jury, and had it been incompetent its incompetency was waived because timely objections thereto were not made. [Ladd v. Williams, 104 App. l. c. 398 and cases cited.] We do not understand that testimony though to be incompetent can be admitted by a party without timely objections being made and wh*en he discovers that such testimony is unsatisfactory and after cross-examination npon the same matter he can get rid of all of it by verbal motion to strike out.

The court gave the jury a very apt instruction to the effect “that the jury ivere the sole judges of the tueight■ of the evidence and the credibility of the witnesses.” Under this instruction it was the duty of the jury to weigh all of the testimony submitted in the case, and pass on the credibility of the witnesses as well. The objection asigned in the motion for new trial does not go to the failure of the court to give a cautionary instruction as to the “testimony given against defendant by the bloodhound,” but relates, as above indicated, to the weight of said testimony. It therefore becomes unnecessary to consider the point further, except to add that said instruction covers the complaint made, fully and fairly, and is a correct instruction under the law. We rule this point against appellant.

IV. Appellant complains that the court committed error in refusing an instruction asked by him upon the presumption of innocence. The court g'ave an instruction npon presumption of innooense which reads as follows:

“The law presumes the dfefendant to be innocent, and this presumption attends him until overcome by evidence which proves him, guilty beyond a reasonable doubt. If you have a reasonable doubt of defendant’s guilt you should acquit him, but a doubt to authorize an acquittal on that ground alone should be a substantial doubt touching defendant’s guilt, and not a. mere possibility of his innocence.”

We think this was a correct instruction.

The refused instruction reads as follows:

“That the laAv clothes the defendant with a presumption of innocence, which protects him -until it is overcome by evidence of his guilt beyond a reasonable doubt, which means that the evidence must be clear, positive and abiding, and fully satisfy the minds and conscience of the jury; that it is not sufficient to justify a verdict of guilty that there' be a strong suspicion or probability of guilt, but the law requires proof producing a clear, undoubted and ‘entirely satisfaction’ of guilt, the burden of establishing which is on the prosecution; and that, as the prosecution seeks a conviction on circumstantial evidence alone, the jury cannot convict unless the State has proven defendant’s g-uilt beyond a reasonable doubt by facts and circumstances consistent with each other and with his guilt and absolutely inconsistent with any reasonable theory of innocence. ’ ’

The vice of this instruction is that it is too argumentative and partisan, and should have been refused on that ground.- Bjut aside from this it was properly refused, because the court gave a proper instruction covering presumption of innocence, and -it has been held by this court that it is wholly unnecessary to duplicate instructions. [State v. Guinn, 174 Mo. 680, l. c. 685.] It is quite manifest that duplication of the instructions to the jury tend to confuse, rather than make clear, the issue upon which they must pass.

We hold that said instruction was properly refused and rule the point against appellant.

V. We cannot agree with defendant's contention that the State failed to show a motive for the crime. The testimony above set out shows that bad blood ex~ isted heween him, and his fathily, especially' his wife; that defendant s~id he had returned home for a general settling up; that he was going to take his youngest son away from them, dead or alive; that the boys woul~I not let him do it, but he would get as many of them as they would of him; that two or three weeks prior to the killing he procured the 25-20 ealiber Winchester, and was frequently thereafter seen watchina' the Dooms home while armed with said zuri and on the night deceased was killed while sitting around the stove after dark. If defendant. did not single him out as his victim he fired the shot indiscriminately into the family with the result that deceased was killed. That act was prompted by a motive to commit crime and the fact that he possibly happened to kill deceased would not alter the situation; the law, under these facts, would supply the motive if' it had been necessary that it be supplied. But it has been held by this court in State v. Barrington, 198 Mo. l. c. 103, that where no motive appears for the commission of the crime, yet if the jury believe from all of the evidence that defendant did in fact commit the crime charged, then he should be found guilty, no matter whether any motive for the deed be apparent or not. To the same effect are the cases of State v. David, 131, Mo. l. c. 397, and State v. Henderson, 186 Mo. 173.

We hold that a sufficient motive for the commission of the crime was shown, and rule the point against appellant.

VI. It is urged that the record proper shows that defendant was not awarded a trial by the regular panel of jurors drawn by the county court, but by a selected panel selected by the sheriff.

Defendant submitted to trial before the jury selected, in which he participated in selecting the twelve who tried the case and took no steps as he should have done to correct any errors in this behalf', if any existed, and we hold none existed; they were duly qualified under the law to try the case and were competent jurors in every respect for that purpose. We hold under this condition defendant waived his right to question the selecting of the jury at this late date, and therefore overrule the contention.

VII. It is lastly contended that the verdict, judgment and sentence are insufficient in law to incarcerate defendant in state prison.

We do not so view the assignment.' The verdict was one of guilty and assessed defendant’s punishment at a term of twelve years in the State Penitentiary, and upon that verdict the court rendered judgment and duly sentenced defendant in accordance with the finding of the jury. If there was anything further'to do or tfiat was necessary to do to make a valid verdict, judgment and sentence, we are not advised what it ivas. Without pursuing the matter further we hold that the verdict of the jury and the judgment and sentence pronounced thereon by the court were valid and sufficient to uphold defendant’s conviction.

We have thus with painstaking care given considera^ tion to the points raised by appellant, which has been quite laborious, because of not being favored by brief of defendant’s learned counsel, but without prolonging this opinion further, in consideration of what it is herein said, we think defendant has had a fair and impartial trial, and that the judgment should be affirmed. It is so ordered.

Railey and White, C'G., concur.

PER CURIAM: — The foregoing opinion of Mozley, C., is hereby adopted as the opinion of the court.

All of the judges concur.


author: WHITE, C.

text:
    ENO EVERSMEYER, Appellant, v. W. W. BROYLES and RICHARD T. BENNETT.
    Division Two,
    December 4, 1919.
    1. JUDGMENT: Ejectment: Annullment: Indefinite Description. The section lines and corners of a Government survey are fixed and determined whether or not there- are any visible monuments indicating their location. So if the description of the land in the judgment in ejectment states the beginning point is the northeast corner of a certain fractional section, and from that point the lines are described by courses and distances, and there is no allegation that there is any uncertainty as to the location of the corner, the judgment cannot he annulled oil the ground that the description is so vague and uncertain as to he void.
    2. -: -: -: -: Tracing Courses: Outside of Section Named. The description of land contained in a judgment may he followed backwards as well as forwards for the purpose of ascertaining the true location of the land described; and if the judgment recites that the land recovered is all of the northeast fractional quarter of a certain section, and by following the courses and distances given the land can be ascertained to be , within that quarter section, it will not be held that it lies outside of it, and that in consequence the judgment is void for uncertainty of description.
    3. -: -: Res Adjudicata: Possession of Defendant. Where the court in its judgment in ejectment found that defendant was in possession of the land, he cannot subsequently dispute that finding by a collateral attack upon the judgment.
    4. -:-:-¡'Defense Available In Ejectment: Ownership. An allegation in a suit to annul a judgment in ejectment that plaintiff is the owner of an undivided one-third of the land is a defense he should have set up in the ejectment suit, and he cannot now be heard to assert any claim to the land, he might then have presented as a defense.
    Appeal from Montgomery Circuit Court. —Hon. E. S. Gantt, Judge.
    Affirmed.

      Sutton £ Huston, Hostetter £ Haley and Rosenberger £ Dowell for appellant.
    (1) The description of the lands adjudged to. be recovered in the judgment in the ejectment suit is so vague and uncertain as to 'render the judgment utterly void and subject to collateral attack. It is impossible t.o say, under any rule of interpretation that might be adopted, whether it was intended to adjudge the recovery of lands in Fractional Section 28’ or lands in Survey 1744; and if interpreted^to adjudge the recovery of lands in Fractional Section 2.8, no marks, monuments or physical objects are given to guide the sheriff in the location of the lines and boundaries of Fractional Section 28, and the sheriff is commissioned to judicially determine the location of such lines and boundaries. Benne v. Miller, 149 Mo. 245; Franklin v. Haynes, 139 Mo. 313; Robertson v. Drane, 100- Mo. 273; Brummell v. Harris, 148 Mo. 446 ; Koch v. Gordon, 23T Mo. 652; Dolphin v. Klann, 246 Mo. 487; Guitar v. St. Glair, 238 Mo. 627. (2.) If, however, the description of the land in the judgment is to be interpreted as commencing 610 feet west of the northeast corner of Fractional Section 28' by rejecting the call in the judgment for the northwest corner of Fractional Section 28 and the west- line of said Fractional Section and the east line -of Survey 1744, then the judgment is void because it adjudges to the plaintiff in the judgment possession of lands not. described in the petition, and thus goes beyond the limits of the issue made by the pleadings and exceeds the jurisdiction of the court. Bticken v. Cross, 140 Mo. 171; State ex rel. v. Seibert, 97 Mo. App. 219; State ex inf. Rosenberger v. Bellflower, 129 Mo. App. 146. Charles v. White, 214 Mo. 298; Little v. .Giles, 27 Nieb. 179; Waldron v. Harvey, 54 W. Va. 608 ; Stanley v. Roberts, 59 Fed. 836; Bland v. Windsor, 187 Mo. 132 ; Railroad v. Railroad, 222 Mo. 487; Sec. 2394, R. S. 1909. (3) If, under any possible rule of construction, the judgment could be held to be valid for the recovery of a tract of land in Fractional Section 28, still the plaintiff is entitled at least to be relieved from the payments of rents and profits accruing since the rendition of the judgment, the defendant . Broyles having been in the exclusive possession of the tract since the rendition of the judgment.
    ’ Avery <& Killam, W.. G. Hughes and 8. 8. Nowlin for respondent.
    (1) The burden of the objections as shown in plaintiff’s petition, is that the judgment rendered by the circuit court was null and void because the court had no jurisdiction of the subject-matter or parts of the subject-matter, and as the circuit court had no jurisdiction, the Supreme Court liad no jurisdiction, and therefore this judgment is subj'ect to collateral attack. We lay down this doctrine: If the circuit court had no jurisdiction to render the judgment then the judgment is absolutely void, and being- void the execution will be void also, and equity will not interfere to do a nugatory act. The remedy of Eversmeyer, the defendant in the ejectment suit, under these circumstances, is not an equitable remedy, but he has a complete, legal and adequate remedy, as he can maintain a suit against the sheriff as a trespasser and also against Broyles and the purchasers’ title to the land sold under this void judgment would be entirely valueless and there can be no recovery in a court of law. Donovan v. Railway Co., 89' Mo. 146 ; Railway Company v. Uowder, 138 Mo. 538. (2.) A court will not enjoin, or restrain, the execution of a void judgment. Taylor v. Todd, 48 Mo. App. 555; McClanahan' v. West, 100'Mo. 323; Railway Company v. Maddox, 92 Mo. 469'; Railway Company v. Reynolds, 89 Mo. 146; Stockton v. Ranson, 60 Mo. 535'; Bear v. Youngman, 19 Mo. App'. 41. (3) The appellants complain that it would be inequitable and unjust for the plaintiff in the ejectment suit to recover the lands described in the petition if only an undivided one-third part of these lands belonged to Eversmeyer, the defendant in the ejectment suit, and that plaintiff is at least entitled to be relieved from the payment of rents and profits to an undivided two-thirds part of the lands accruing since the rendition of the judgment. This was a question of defense in the ej'ectment suit. Reiger v. Mullins, 210' Mo. 563. (4) A valid judgment for plaintiff definitely and finally negatives every defense, objection or exception which might and would have been raised against the action. 23'Cyc. 1196.
   WHITE, C.

The plaintiff brought suit in the Circuit Court of Lincoln County to enjoin the levy of an execution and the annulment of the judgment upon which the execution was issued. The case in which the judgment was rendered was ejectment. The defendant here W. W. Broyles was plaintiff, and the plaintiff here was defendant. It is alleged that the defendant, Richard T. Bennett, sheriff of Lincoln Connty, is about to serve the execution.

The hill of plaintiff sets out the pleadings, proceedings and judgments in the case of Broyles v. Eversmeyer.

The petition in that case stated a cause of action in ejectment in the ordinary form for the recovery of a tract of land in Lincoln County, described as follows, to-wit: All the Northeast Fractional Quarter of Section 28, Township 50, Range 1 west. The petition stated that the defendant Eversmeyer was wrongfully in possession of the same and that the plaintiff Broyles was damaged in the sum of five hundred dollars by the withholding of possession, and that the monthly rents and profits of the premises was fifteen dollars.

The judgment in the case of Broyles v. Eversmeyer is then set out and it recites that the court heard the evidence and found the plaintiff was the owner and entitled to the possession of:

“All of the Northeast Fractional Quarter of Section 28, Township 50, Range 1 west, and that afterwards on the.2nd day of January A. D. 1906, the defendant herein, Eno Eversmeyer, entered upon said lands and took possession thereof and ever since that time and noAV has wrongfully continued in possession thereof and unlawfully withheld and now withholds possession thereof from the plaintiff that part of the said Northeast Fractional Quarter of Section 28, Township 50, Range 1 west, described as follows: Beginning on the north line of Fractional Section 28, Township 50, Range 1 west, at a point 610 feet west of the Northeast corner of said Fractional Section 28; thence with the line between said Fractional Section 28 and Survey 1744, S. 39 degrees east 450 feet*; thence S. 10 degrees W. 800 feet; thence N. 75 degrees W. UOO feet; thence S. 10 degrees W. 60 feet; thence leaving said line between Fractional Section *28 and Survey 1744 and running S. 84§ degrees E. 288 feet; thence S. 52 degrees E. 1002 feet; thence N. 46 degrees E. 406 feet; thence N. 17 degrees 10 degrees E. 482 feet; thence N. 33^ degrees W. 133 feet; thence N-. 70 degrees W. 10'5 feet; thence N. 10 degrees E. 246; feet; -thence N. 23 degrees W. 480 feet to the north line of said Fractional Section 28 ; thence west with said section line 183 feet to the place of beginning, containing* about 11% acres.
££The court doth further find that plaintiff has-been damaged in the sum of' $360' by reason of defendant’s action in taking! possession of said land and withholding* the same from the plaintiff since the second day of January, 1905, to this date; the court further finds that the value of the monthly rents and profits of said lands is $i7.50>.
££It is therefore ordered, adjudged and decreed by the court that plaintiff have and recover against the defendant a judgment of restitution for the possession of the aforesaid lands, so found by the court to have been unlawfully taken and withheld by defendant from plaintiff, and that we have a writ of restitution therefor, and also that plaintiff have and recover from defendant a judgment for the sum, of $360' for his damage as found by the court by reason of the defendant taking and withholding possession of said lands from the plaintiff, and that he also have judgment against the defendant for the value of the rents and profits found by the court at the rate of $7.50 per month from the date of the rendition of this judgment until possession is delivered to plaintiff, and for the costs expended about the prosecution of this suit and as taxed by this court, and that he have execution therefor.”

The bill in this case then alleges that a writ of possession and execution had been issued upon this judgment directing the Sheriff of Lincoln County to oust the plaintiff from the possession of the, lands described in the judgment and to levy the damages and costs adjudged in favor of Broyles and against Eversmeyer.

Tlie bill further alleges that it cannot be determined, from the terms and provisions of the said judgment, where the tract of land lies which is adjudged to belong to Broyles. It is averred that there are two tracts of land, Tract A and Tract B, and that it is impossible to determine which tract is meant by the description in the judgment; that Tract A lies wholly without Fractional Section 28, Township 50', Range 1 west, and that Tract B. lies wholly within the Northeast Fractional Quarter of Section 28. It is further averred that the plaintiff Eversmeyer is in possession, and has been since the commencement of the suit of Broyles v. Eversmeyer, of only an undivided one-third part of Tract A, and therefore if Tract A was the tract intended the judgment, is wrong in that it should have adjudged the recovery only of an undivided one-third, and should have adjudged recovery of only one-third of' the damages, rents and profits.

It is further averred that if Tract- B is the tract sued for and intended to be described in the judgment, then Broyles, the plaintiff in said ejectment suit, was at the time of the rendition of the judgment and at the commencement of the suit and ever since has been in exclusive possession, and therefore is not entitled to a judgment for possession or the recovery of damages of rents and profits for the withholding of such possession.

It i's further alleged in the bill that the plaintiff had a meritorious defense to the suit in the case of Broyles v. Eversmeyer and that he was the owner in fee of an undivided one-third of Tract A and entitled to the possession of same. The plaintiff, Eversmeyer, then prays for a temporary restraining order enjoining the defendant from levying upon and selling plaintiff’s property under the said execution and from interfering with plaintiff’s possession of said Tract A; and that the said writ of injunction upon final hearing may be made perpetual, and that the said judgment may he annulled and Broyles be restrained from attempting hereafter to enforce it.

The defendants filed a demurrer to this bill which was by the trial court sustained. The plaintiff declining to plead further, his bill was dismissed, and from that judgment he appealed.

I. The first point made by appellant is that the description in the judgment attacked is so vague and uncertain as to render the judgment void; that it cannot be determined from the description of the land whether it lies within the northeast Fractional Quarter of Section 28, or in Survey 1744 mentioned in the judgment and entirely without the northeast Fractional Quarter of Sec-ion 28. It is argued that the sheriff in serving' the execution which contains a description of the property, following the judgment, must have some definite fixed monument by which to identify the land; that no fixed monuments from which to begin the measurements and calls for distances appears in the description and therefore the sheriff would not know where to begin.

The description clearly states the beginning* point from which the description must start, and that is the northeast corner of Fractional Section 28. If we undei*stand appellant, he contends there is 'no monument by which to locate that point. The plaintiff’s bill in this case states nowhere that there is any uncertainty about that section corner, nor about the location of the line dividing that section from Survey No. 1744. It is true, in an action of ejectment where a Government survey of a line or corner is in dispute and the issue in the case turns upon its location, the judgment must determine and state in some manner just where it is, so that it can be located. [Brummell v. Harris, 148 Mo. 446; Benne v. Miller, 149 Mo. l. c. 245.]

But section lines and comers in a Government survey are fixed and determined, whether there are visible monuments there or not. [Bradshaw v. Edelen, 194 Mo. 661; Granby Mining & Smelting Co. v. Davis, 156 Mo. 422, l. c. 430-1; Carter v. Homback, 139 Mo. l. c. 243.]

The cases cited by appellant in support of his position that the judgment should show a fixed, visible monument by which the sheriff might locate the land, all are cases where there was'a dispute as to the position of a line or a corner and the location of such line or a cornier was an issue in the case. It is not alleged that there was any dispute as to the location of the section corner or section line, nor that the sheriff would have any difficulty in finding them; it must be presumed that the court acted regularly and with full knowledge of the situation. Therefore it must be presumed that the sheriff would know where to find them. The judgment would cover the land described, following the courses and distances wherever the same might fall, the courses and distances of course being limited to know lines and monuments. [Kronenberger v. Hoffner, 44 Mo. 185; Smith v. Catlin Land & Imp. Co., 117 Mo. 438.]

II. But it is contended that beginning 610 feet west of the northeast corner of Fractional Section 28 and following the courses and distances named in the description, he would run entirely without Fractional* Section 28 and the land would lie wholly in Survey No. 1744. and in that case the judgment would be f°T the recovery of land not described in the petition. In answer to this, there is a finding by the court that the land described is a part of the northeast Fractional Ouarter of Section 28 and therefore within the allegation of the petition. And nothing appears in the record of that case nor in the allegations* of the bill to show the contrarv. The appellant has presented no plat showing the location, dimensions or contour of Fractional Section 28. nor of Survey No. 1744. We do not know on which side of Fractional Section 28 Survey 1744 is except as it mav be inferred from this description in the iud°*ment. The description begins ou fbo north line of TfVaetional Section 98- therefore it must bp n point somewhere ou that, section and not off it and the first call runs with the line between Fractional Section 28 and Survey 1744. Therefore, whether the distances of this beginning point from the northeast corner of Section 28 is 610 feet, or more or less, it^ would be on the north line of Section 28 and on the line between that section and Survey 1744. The last call of the description runs with the north line of the Fractional section, 183 feet west to the place of beginning. We can follow the description backwards as well as forwards to ascertain the true location of tbe land described. The beginning point then is on the north line, and on the line between Survey 1744 and Section 28, and the north side of the tract described is 183 feet wide. All of this last call then is clearly within Section 28. But the first call follows the line between Section 28 and Survey 1744, as likewise do the second, third and fourth calls. This is evident from fact that the fifth call begins Avith: “Then leaving said line between Fractional Section 28 and Survey 1744,” indicating that all previous calls have followed that line. Now it is apparent from the first, second, third and fourth calls that Survey 1744 lies west of Section 28. The next ♦call, after leaving the line between Section 28' and Survey 1744, runs south ,84-|- degrees east, and the next, south 52 degrees east, and these two calls bearing eastward certainly carry into Section 28 and not westward into Survey 1744. The other calls then encircle the tract so as to bring the last call to start 183 feet east of .the beginning point. There is nothing in that description which necessarily places the land described, nor any part of it, outside of Section 28. There is no allegation as to- how wide east-and-west the northeast Fractional Quarter of Section 28 is, nor where' the line runs between that and Survey 1744, except as that dividing line is set out in the judgment. On this state of the record the finding of the trial court is conclusive.

III. It is further complained by the plaintiff that if Tract B us meant to be described, Broyles is already in possession, and if Tract A is meant to be described 'Eversmeyer is in possession of only a one-tliird interest. Bnt the trial court in the ejectment suit found that Broyles was entitled to possession of the tract sued for and Eversmeyer was in possession and unlawfully withheld same. Eversmeyer cannot be heard to dispute that fact in this collateral attack upon the judgment.

Plaintiff further alleges that he has a meritorious defense to that ejectment suit and that he is the owner of an undivided one-third part of Tract A. Then that is a defense which he should have set up in the ejectment-suit; it can avail him nothing here. In fact, all the objections urged by appellant in this case against the propriety of the judgment in the ejectment suit of Broyles v. Eversmeyer were available to him and should have been presented as a defense to that action. He cannot now be heard to object to the regularity of that proceeding or urge here in support of his rights to the land any claim, which he might have presented in defense of that action. [Spratt v. Early, 199 Mo. l. c. 501; St. Louis v. United Railways, 263 Mo. l. c. 424.]

The bill speaks of Tract A and Tract B as if the description in the judgment might fit either tract. Appellant does not explain how that could be done except to say that following the courses and distances would carry the land out of Section 28. He claims in his brief, though it is not alleged in the bill, that 6il0 feet west of the northeast corner of Section 28 is 283 feet west of the line between that section and Survey 1744; that is, the north line of the section is only 327 feet long. If that is true, then the beginning point would stop 283 feet short of 610 feet west of that comer, at the dividing line and follow it. Appellant finds difficulty in that, and, in fact, the entire trouble expressed by appellant arises from the assumption that the northeast corner of P'ractional Section 28, as well as the line between that Fractional Section and Survey 1740, are not monuments. "What appellant means by that we presume is that there are no fixed, visible marks on the ground to designate their positions. As said above, it does not matter whether there are any marks there or not so long as their location is not disputed.

The judgment is affirmed.

Bailey and Mosley, GG., concur.

PER CURIAM: — The foregoing opinion by White, 0., is adopted as the opinion of the court.

All of the judges concur.