text:
    THE STATE v. CLARENCE CLAYBAUGH, Appellant.
    Division Two,
    May 18, 1909.
    APPELLATE JURISDICTION: Constitutional Question: Qualification of Grand Juror. Neither the State nor the Federal Constitution undertakes to designate the qualifications of either a petit or grand juror; they are purely statutory, and where the real -point in issue is whether or not under the statute a certain person was qualified to be a member of the grand jury that issue involves no more and can involve no more than a construction of the statute. So that where the ground of the motion to quash the indictment is that the foreman of the grand jury that returned it had within the period of one year prior thereto been foreman of another grand jury in the same county and was therefore disqualified to be a member of the grand jury, and the jury in consequence was not composed of twelve qualified men, no constitutional question is involved, although the motion specifically declares that to put the defendant upon trial under an indictment so returned would be violative of certain specified clauses of the Constitution, and expressly invokes these clauses; and hence the Supreme Court does not on that ground have jurisdiction of the misdemeanor case.
    Appeal from Grundy Circuit Court. — Eon. Geo. W. Wanamaker, Judge.
    Transferred to Kansas City Court of Appeals.

      O. N. Gibson and Eubbell Bros, for appellant.
    (1) The disqualification of the foreman is conceded, and such a case is not to he confounded with those where a mere irregularity in selection is shown. As to qualification of jurors, the statute .is mandatory; as to mode of selection, it is merely directory. 20 Cyc. 1303; R. S. 1899, sec. 3774; State v. Beckley, 18 Mo. 428; State v. Welch, 33 Mo. 33. (2) In' prosecution by indictment, due process of law requires that the bill be legally found by a grand jury of twelve. Legislatures may make reasonable regulations as to the time and manner in which the accused shall avail himself of his right to object to incompetent jurors, but to deprive him of such right altogether would'be .to deny to him rights guaranteed him by both the Federal and the State Constitutions. Art. 14, amendments U. S. Constitution; secs. 22, 28, 30, art. 2, Constitution of Missouri; Crowley v. United States, 194 U. S. 461; State v. Warner, 165 Mo. 415; 3 Words and Phrases, 2227, 2243. (3) The enactment of section $774 repealed section 2488 by necessary implication. State v. Taylor, 186 Mo. 608; Kreyling v. O’Reilly, .97 Mo. App. 384; Cunningham v. Mining Co., 103 Mo. App. 398; State ex rel. v. Dolan, 93 Mo. 467; Railroad v. Cass Co., 53 Mo. 17; Glasgow v. Lindell, 50 Mo. 60.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
    (1) In 1901 the Legislature eliminated from section 3770 all reference to grand jurors, and by amendment restricted the application of that section to petit jurors only. Laws 1901, pp. 191, 192. At the same session a new section relating to the selection and summoning of grand juries was enacted, which omits all reference to any disqualification by reason of former service on a “standing jury.” Laws 1901, pp. 192, 193. The words “either as grand or petit juror” were omitted from section 3770 in the Act of 1901, leaving the section' as re-enacted applicable solely to petit jurors. The sentence in the first part of the section relating to grand jurors was eliminated at the same time by the same act. The failure of the Legislature to include in section 3770a, enacted in 1901, a proviso similar to that appended to 3770 and its elimination of all reference to grand jurors in the last proviso of that section, demonstrates that the Legislature intended that the disqualification formerly provided should no longer operate in the case of grand jurors. The provisions of section 3770a, Laws 1901, pp. 192', 193, that “the county court shall thereupon draw and select said grand jury, and the same shall be summoned in the same manner as provided for the selection and summoning of petit jurors in this chapter,” etc., most clearly does not, in the face of the omission of the proviso from the section, include within the meaning of 3770a the disqualification upon which defendant relies. Section 2 of the Act of March 19, 1901, includes an express legislative declaration that “there is ... no statute law directing the manner of drawing and selecting grand juries.” Section 3770 was, then, unchanged. Laws 1901, pp. 192, 193. (2) There is, then, and was, at the time of the trial, no such statute in force as that upon which defendant attempts to raise a constitutional question in the case. The statutory provision upon which defendant constructed his constitutional argument simply does not exist, and did not at the time of the trial. Counsel cannot imagine a section of the statute and then give this court jurisdiction by grounding a constitutional question upon that imaginary section. No constitutional question is involved in determining that certain sections, or certain provisions of the statutes have been repealed and no longer exist. Therefore, since no statute prohibited "Wyatt’s serving twice within the year on grand juries, the fact that he did so did not disqualify him. And no consideration of a constitutional question is involved in reaching this conclusion. Defendant does not present any constitutional question which is not predicated upon the existence of the repealed provisions of section 3770. A glance at the Laws of 1901 discloses their repeal, and discloses that there is no foundation in the record for the constitutional argument so ably presented. (3) As the statute stood at the trial, and stands now, there was neither need nor reason for the trial court considering the constitutionality of Wyatt’s qualifications in the respect of which the motion to quash complained, since no such qualification was required by the statute. On the record here no constitutional question is necessarily involved. If so, then the constitutional provision vesting the courts of appeals with appellate jurisdiction in misdemeanor cases quite uselessly encumbers the books. Kirkwood v. Meramec H. Co., 160 Mo. 118; Woody v. Railroad, 173 Mo. 550; Hilgert v. Paving Co., 173 Mo. 328; Holland v. DePriest, 130 Mo. 89. In order to vest this court with jurisdiction “it must affirmatively appear that the decision is necessary to the determination of the case.” Kirkwood v. Meramec Highlands Co., 160 Mo. 118; Kansas City v. Baird, 163 Mo. 198.
   FOX, J.

The defendant in this cause was convicted in the Grundy Circuit Court of petit larceny.

The offense of which the defendant was convicted and upon which the judgment in this cause is predicated is a misdemeanor. On the 3d day of February, 1905, the grand jury of Grundy county returned into court an indictment charging defendant with having stolen certain turkeys, the property of one W. O. Garnand. Such property was alleged to be of the value of $17.50.

At the June term, 1905, defendant filed his motion to quash the indictment on the ground that B. F. Hyatt, foreman of the grand jury which returned the indictment in this cause, had been foreman of a grand jury of Grundy county within a period of one year prior to the impaneling of the grand jury that returned the indictment herein. It is alleged in the motion to quash that to put defendant on trial under the indictment would be violative of the fifth, sixth and fourteenth amendments of the Federal Constitution, and sections twelve, twenty-two, twenty-five, twenty-eight and thirty of article two of the Constitution of Missouri. The motion to quash was by the trial court overruled, and the defendant was put upon his trial, and at the close of the evidence the cause was submitted to the jury and they returned a verdict finding the defendant guilty of petit larceny and assessed his punishment at a fine of ten dollars. Judgment was rendered in accordance with the verdict and from this judgment the defendant prosecuted his appeal to this court upon the ground that a constitutional question was properly raised and involved in this proceeding.

At the very threshold of the consideration of this cause we find that the learned Attorney-General challenges the jurisdiction of this court; hence it is important that we first determine as to whether or not this court has jurisdiction of the appeal in this cause. It is manifest that unless there is a constitutional question involved in this proceeding (it being a judgment of conviction for a misdemeanor) this court is without jurisdiction.

The motion to quash which undertakes to present the constitutional question, is as follows:

“Now comes the defendant and moves the court to quash the indictment herein filed against the defendant in this cause, and for grounds of said motion states the following facts:
“First: Under the law an indictment must be certified, and indorsed by a legal foreman of a legal grand jury.
“No person is a legal grand juror who has served as such in any co'urt of record in the county within the period of one year.
“The indictment herein filed is not certified or indorsed by any legal foreman of the grand jury, for the reason that B. P. Wyatt, who signed this indictment, claiming to be the foreman of the grand jury, was not a legal grand juror, he having been foreman of a grand jnry. of 'Grundy county within the period of one year prior to the impaneling of the grand jury that returned the indictment herein; and the said B. F. Wyatt having been appointed foreman of the grand jury that returned this indictment, such appointment having been made by the court at the suggestion of the prosecuting attorney.
“To put the defendant on trial under the indictment herein filed against him would be violative of article V of the amendments to the Constitution of the United States, in that it would be to deprive the defendant of his liberty without due process of law, and violative of article VI of said amendments, in that it would deny the defendant the right to be informed of the nature and cause of the accusation, and violative of article XIV of the amendments to the Constitution of the United States, in that it would deprive the defendant of his liberty without due process of law, and deny the defendant the equal protection of the laws and would be violative of article II, section 12, of the Constitution of Missouri, in that it denies the defendant the right to be proceeded against by indictment as at common law, if indicted at all; and violative of section 22 of article II, section 25, and section 28, in that it is thereby provided that a grand jury shall consist of twelve men, and a less number of legal grand jurors is not a constitutional grand jury; and is violative of section 30 of article II of the Constitution of Missouri, in that it deprives the defendant of his liberty without due process of law; and all of said constitutional.provisions are hereby expressly invoked.
“Second: The defendant further moves the court to quash the indictment, herein for the reason that said indictment fails to state sufficient facts to constitute an offense under the laws of the State of Missouri.”

It will be observed from the averments in the motion to quash that the contention of appellant that a constitutional question is involved is predicated solely upon the allegation of disqualification of one of the members of the grand jury, to-wit, B. F. Wyatt. In other words, it is averred that B. F. Wyatt, who was a member of the grand jury that returned the indictment in the case at bar, had been a member of the grand jury of Grundy county within the period of one year prior to the impaneling of the grand jury that returned the indictment in this cause.

The Constitution of this State or the Constitution of the United States does not-undertake to designate what shall be the qualifications of either grand or petit jurors. The statute of this State makes full provisions as to the qualifications of both grand and petit jurors, and the qualifications of a grand juror are purely statutory, and so far as this proceeding is concerned, upon that question', it is simply a controversy between the State and the appellant as to the proper construction of the statute which undertakes to provide fully the qualifications of members of the grand jury.

The Courts of Appeals of this State are as fully vested with authority to construe statutes and determine whether or not they have been violated in all causes properly within their jurisdiction as the Supreme Court of this State. In our opinion there is no constitutional question involved in this proceeding. It simply involves the proper construction as well as the force and effect of a statute providing for the qualifications of jurors.

This case is unlike the case of State v. Warner, 165 Mo. 399. In that case the record disclosed that the defendant was in custody and requested that he be permitted to be present at the impaneling of the grand jury which would make the investigation of his case. The court denied the request and it was held by this court, and properly so, that this was a denial of a constitutional right to be present at the impaneling of the grand jury, for the purpose of affording the defendant an opportunity of making such challenges to the members constituting the inquisitive body as he might deem proper. That is not this case. Here we are confronted with simply a motion to quash an indictment for the reason, as is contended by the appellant, that one of the persons composing the grand jury was disqualified under the provisions of the statute.

The case of Crowley v. United States, 194 U. S. 461, is relied upon by appellant in the case at bar. While that case might furnish authority for the proper construction of the statute which provides for the qualifications of jurors, it has no application and furnishes no support to the proposition that a constitutional question is involved in the proceeding in the case at bar. The indictment in that case was based upon certain provisions of the Revised Statutes of the United States relative to crimes committed by persons employed in the postal service. The indictment was returned to the District Court of the United States for the District of Porto Rico as constituted by the Act of Congress of April 12, 1900, entitled, “An Act temporarily to provide revenues and a civil government for Porto Rico, and for other purposes.” It was disclosed by the record that the Legislative Assembly of Porto Rico made provisions for the qualification of jurors. The Supreme Court of the United States took jurisdiction of that ease on the ground that an act of Congress was brought in question and certain rights claimed by the defendant thereunder were denied, and not for the reason that any of the provisions of the Federal Constitution were infringed upon.

Our attention is also directed to the case of People v. Romero, 18 Cal. 89. It will be observed that that case involved a similar proposition to the one presented in State v. Warner, 165 Mo. 399. There, as in the Warner case, the defendant, by the trial court, was denied a constitutional privilege to be present at tbe impaneling of the grand jury where an opportunity could be afforded to make such challenges to the members of that body as he might deem appropriate. That case furnishes no support to the insistence that a constitutional question is involved in the case at bar.

This cause properly belongs to the Kansas City Court of Appeals. That court is fully vested with full authority to determine the legal controversy between the State and the defendant as to the proper interpretation, as well as the force and effect, of the statute providing for the qualification of jurors. There may be other questions involved upon the proposition now under discussion, such as to whether or not the objections to the incompetency of the juror were, timely, but manifestly all those questions are properly determinable by the Court of Appeals. The appeal should have been granted to the Kansas City Court of Appeals, and for that reason it is ordered that this cause be transferred to that court.

All concur


source: Caselaw Access Project

author: GANTT, P. J.

license: Public Domain

text:
    THE STATE v. FERD WARNER, Appellant.
    Division Two,
    May 18, 1909.
    INDICTMENT: Against Peace and Dignity of State: Insufficient. An indictment concluding -with, the words “against the peace and dignity of State” is insufficient. The Constitution provides that “all writs and process shall run and all prosecutions shall be conducted in the name of the ‘State of Missouri;’ . . . . and all indictments shall conclude, ‘against the peace and dignity of the State,’ ” and the omission of the word “the” before “State” is fatal.
    Appeal from St. Louis City Circuit Court. — Eon. Eugo Muench, Judge.
    Reversed and remanded.

      T. J. Rowe, Hiram N. Moore, Thos. J. Rowe, Jr., and Henry Rowe for appellant.
    The indictment upon which appellant was tried and convicted concludes, “contrary to the form of the statute in such cases made and provided and against the peace and dignity of State.” The definite article “the” before “State” is - omitted in the concluding sentence of the indictment. It is only necessary to call the court’s attention to the learned, lucid and exhaustive opinion in State v. Campbell, 210 Mo. 202. The identical proposition is also decided in State v. Skillman, 209 Mo. 408.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
    An examination of the indictment discloses that, if the authorities are to he followed, it is defective in one respect. State v. Campbell, 210 Mo. 202; State v. Skillman, 209 Mo. 412. The court’s attention is, however, respectfully called to the difference between the cases mentioned and the case at bar: In the Campbell case, defendant, both by his motion to quash, and by his motion in arrest of judgment, specifically assailed the indictment therein on the ground that the conclusion was insufficient. In the Skillman case there was a motion in arrest of judgment. In this case the defect was not pointed out in the lower court, defendant not having mentioned it in his demurrer to the indictment, and having entirely omitted filing a motion in arrest of judgment.
   GANTT, P. J.

On the 5th day of December, 1907, the grand jury of the city of St. Louis returned an indictment, charging the defendant Ferd Warner, and one Frederick Priesmeyer, with the crime of bribery. An application for a change of venue was made and overruled. A severance was granted and the defendant Warner was duly arraigned and entered his plea of not guilty.

At the same term he was put upon his trial and convicted and his punishment assessed at two years in the State penitentiary. His motion for a new trial being overruled, he was sentenced in accordance with the verdict. He then filed a bill of exceptions and appealed to this court.

I. The defendant assigns only one error in this court and that goes to the sufficiency of the indictment. The indictment concludes in these words: “Contrary to the form of the statute in such cases made and provided and against the peace and dignity of State.” .The Constitution of Missouri, article 6, section 38, provides “that all writs and process shall run and all prosecutions shall he conducted in the name' of the ‘State of Missouri;’ all writs shall be attested by the clerk of the court from which they shall he issued; and all indictments shall conclude, ‘against the peace and dignity of the State.’ ”

This court in State v. Skillman, 209 Mo. 408, and in State v. Campbell, 210 Mo. 202, held that indictments concluding in this identical form were fatally defective in not complying with the constitutional mandate. We can add nothing to what was said on this subject in those cases, and accordingly this judgment must he and is reversed and the cause remanded, in order that a proper indictment may he returned. In the meantime the defendant will he recognized to answer such other or further charges.

Judgment reversed and cause remanded.

Burgess and Fox, JJ., concur.


text:
    THE STATE v. DENNIS LAWLER, Appellant.
    Division Two,
    May 18, 1909.
    1. EXCEPTIONS: How Preserved. All exceptions taken during the trial of a cause, to be preserved for consideration by tbe appellate court, must be preserved in a bill of exceptions filed during tbe term of tbe court at which they were taken, or within such time after the expiration of the term as the court at the trial term or before that term has expired may grant.
    2. -: -: Motion for New Trial. In order to have exceptions taken at the trial considered by the appellate court, there must be a motion for a new trial, which must appear in the bill of exceptions as naving been overruled and accompanied by an exception saved to the ruling of the court thereon.
    3. -: Motion for New Trial: Bill Filed at Subsequent Term: No Extension Order. Where the motion for a new trial was overruled and the cause continued to a subsequent term after motion in arrest was timely filed, a bill of exceptions filed at such subsequent term, without any order to subsequently file made at the term at which the motion for a new trial was overruled, cannot be considered on appeal. So that where the motion for a new trial was overruled on November 8th, and on November 12th a motion in arrest of judgment was filed, and on December 1st the case was continued until the next (December) term, and at that term the motion in arrest was overruled, and at that term appellant was for the first time given leave to file a bill of exceptions, a bill filed at that term in pursuance to such leave cannot be considered on appeal, and there is nothing before the appellate court for review except the record proper. A continuance of a motion in arrest "does not save matters of exception.
    4. INDICTMENT: Larceny: In Dwelling House: No Ownership Charged: Good, Nevertheless. An indictment does not sufficiently charge larceny in a dwelling house unless it alleges the ownership of the house or in some other way fully identifies the house. But it may, nevertheless, contain every substantive allegation essential to a good indictment for grand larceny;- for instance, if it charges that the money stolen was the personal property of a named person, that it was of the value of $160, and that defendant did feloniously steal, take and carry away the same, with the intent then and there to deprive the owner thereof and to convert the same to his own use, against the peace and dignity of the State, it charges grand larceny, though it does not properly charge that the money was stolen from a dwelling house in that it does not allege the ownership of the house or otherwise identify the house. In such case the words “in a dwelling house” may be rejected as surplusage.
    5. -: -: Surplusage. If the indictment is fatally defective as an attempt to charge larceny from a dwelling house, yet, nevertheless, if when the words are stricken out what remains is a sufficient charge of larceny, it will be held good, and a conviction and a punishment within the statutory limit for the crime properly charged will be upheld, there being no errors committed at the trial.
    Appeal from St. Louis City Circuit Court. — Eon. Moses N. Sale, Judge.
    Affirmed.

      Elliott W. Major, Attorney-General and James T. Blair, Assistant Attorney-General, for the State.
    (1) It seems to Tbe generally held that an indictment for larceny in a dwelling-house must describe the dwelling in such way as to identify it. Com. v. Smith, 111 Mass. 429; 2 Archbold’s Or. Pr. & P., *pp. 433, 434; Lamkin v. State, 42 Tex. 417; Williams v. State, 33 Tex. 345; Bishop’s Dir. and F. sec. 588, note 8; Rex v. Campbell, 2 Leach (3 Ed.), 642; State v. James, 194 Mo. 275. (2) But the indictment in this case contains a clear enough charge of grand larceny when the words “in a dwelling house” are rejected, and they may be rejected, or, at most, taken as a mere matter of description. Com. y. Hathaway, 14 Gray 392; State v. Richardson, 45 La. Ann. 693; State v. Hupp, 31 W. Va. 358; People v. Lawrence, 137 N. Y. 524. And it is said that if the theft in the dwelling be well charged, but the proof on that phase fail, yet there may be a conviction for the larceny. 2 Archbold’s Cr. Pr. and P. *p. 435; 1 lb. *p. 174; 2 Hawkins’ P. C. 625. (3) And the indictment here, rejecting the words “in a dwelling house” as surplusage, as authorized by the authorities, charges the offense of grand larceny. State v. D'eWitt, 152 Mo. 79; State v. Plant, 209 Mo. 310; 1 McLain’s Prim. Law, sec. 610, note 4; State v. Gallimore,-7 Iredell’s Law (N. C.) 150; 2 Arcbbold’s Or. Pr. & P., *p. 355; State v. Calvert, 209 Mo. 285; State v. Moore, 66 Mo. 374. (4) On an information for burglary and larceny in wbicb tbe allegation as to ownership of tbe building burglarized was so defective that tbis court after verdict and sentence for both burglary and tbe larceny beld that no conviction for burglary thereunder could stand, yet tbe conviction for tbe larceny was upheld. State v. James,-194 Mo. 275. And tbe verdict of tbe jury is returned for tbe larceny. It finds defendant guilty “as charged.” Tbe jury even went so far as to label tbe verdict plainly so that no mistake could be made as to their finding.
   GANTT, P. J.

At tbe April 1906, term of tbe circuit court of St. Louis tbe grand jury returned the following indictment:

State of Missouri, City of St. Louis, ss.
Circuit Court, City of St. Louis, April Term, 1906.
The grand jurors of the State of Missouri, within and for the body of the city of St. Louis, now here in court, duly impaneled, sworn and charged, upon their oath present, that Dennis Lawler on the seventeenth day of April, in the year of our Lord one thousand nine hundred and six, at the city of St. Louis aforesaid, one hundred and sixty dollars, lawful money of the United States, all of the value of one hundred and sixty dollars, all the money, goods chattels and personal property of H. H. Hermann in a dwelling house then and there feloniously did steal, take and carry away, with the intent then and there to deprive the owner of the use thereof, and to convert the same to his own use, against the peace and dignity of the State. Rich M. Johnson,
Assistant Circuit Attorney.
A true bill. — W.. J. Kinsella. Foreman.

At tbe October, 1906, term of court, to wbicb tbe case bad been continued at bis instance, defendant was duly arraigned, a jury regularly impaneled and sworn and a trial bad, wbicb, on October 12, 1906, resulted in a verdict assessing defendant’s punishment at two years in tbe penitentiary.

On Wednesday, October 17, 1906, defendant filed bis motion for new trial. On November 3, 1906, tbe motion for new trial was overruled. On the 5th 'day of November the order overruling the motion for new trial was set aside and the motion ordered refiled, and on November 8, 1906, the court again overruled the motion. On November 12, 1906, defendant filed his motion in arrest of judgment. On Saturday, December 1, 1906, the case, at defendant’s request, was continued until the next (December) term of court. At the December term the motion in arrest of judgment was overruled, and on the 2nd day of February, 1907, leave was given to file bill of exceptions on or before March 5, 1907. On February 21, 1907, the bill of exceptions in this case was filed.

The evidence shows that about midnight, April 17,1906, a fire occurred near the corner of Manchester avenue and Papin street in the city of St. Louis, breaking out in and consuming a structure adjoining the residence and saloon-building occupied by the prosecuting witness, H. H. Hermann. Hermann was awakened by his wife, and after arousing his family found defendant and a policeman in one of the rooms of his dwelling, their mission presumably being to apprise the occupants of their dangerous situation. The officer urged haste, and in defendant’s presence Hermann stated that he “wanted to get his money,” and. the boxes containing the money charged to have been stolen by defendant were taken in his presence from a closet by Hermann. Defendant accompanied Hermann across the street to the residence of a Mrs. Baker, whither the Hermann children had gone after leaving the threatened building. The money was in cigar boxes, and consisted of one hundred and fifteen dollars in bills and fifty-five dollars in silver and nickels. The boxes were tied with “window strings,” The money all belonged to the prosecuting witness, as charged in the indictment.

Hermann, in defendant’s presence, gave the boxes to his little daughter, Annie, who, in company with Mrs. Baker and defendant, took them into the hallway of the Baker residence. The daughter set the boxes in the hallway and she and Mrs. Baker passed into one of the rooms of the Baker suite to attend to some want of the child, leaving defendant in the hallway where the boxes had been placed. When the little girl and Mrs. Baker re-entered the hallway defendant was stooping over the boxes in the corner. He sprang up and rushed out of the doorway, seizing Hermann by the arm, and on pretense of searching for Hermann’s wife and baby, led the latter away with him. The little girl went immediately to the boxes and found them untied and the money gone, with the exception of a little change in one box, amounting to four or five dollars. The house in which the theft occurred was shown to be the dwelling house of the Baker family. The defense was an alibi, but defendant’s witnesses, Simon and Busher, were not very clear in their testimony, and the identification of Lawler as the man in the hallway at the Baker residence was quite positively made by Henry Hermann, Mrs. Baker and Annie Hermann. Defendant’s own witnesses place him at the scene of the fire' that night, as does his own testimony. He was arrested about two o’clock a. m., a block and a half from that point. Defendant was searched after his arrest and the sole result of this process was the discovery of thirteen “ordinary white dice.”

I. Defendant is not represented in this court by counsel, and there is no brief on file in his behalf, but we have examined the whole record. While there is a bill of exceptions incorporated in the record, the first question that arises is, were these exceptions preserved for review in this court at the time and in the manner required by law? It has been the uniform rule in this State that all exceptions taken during the trial of a cause must be preserved in a bill of exceptions filed during tbe term of tbe court at which they were taken or within such time after the expiration of the term as the court may grant. In Riddlesbarger v. McDaniel, 38 Mo. 139, it was ruled that where a motion for new trial was filed at the term the trial occurred and was continued over and not determined until the next term and no bill of exceptions had been filed at the trial term, such exceptions could be preserved in a bill filed at a term when the motion for new trial was overruled, though a subsequent term of the court. That ruling has been followed in many cases. [Gray v. Parker, 38 Mo. 160; Henze v. Railroad, 71 Mo. l. c. 644; Richardson v. Association, 156 Mo. 407; State v. Larew, 191 Mo. l. c. 196-197; State v. Goehler, 193 Mo. l. c. 180; State v. Harroun, 199 Mo. l. c. 260; State v. Jackson, 209 Mo. l. c. 399.]

It is equally the well-established law- of this State, since the decision in State v. Marshall, 36 Mo. 404, that in order to have such exceptions reviewed in the appellate court there must be a motion for a new trial, which must appear in the bill of exceptions as overruled and an exception taken to the decision of the' court thereon. [Ross v. Railroad, 141 Mo. l. c. 395, and cases cited.] Now in this case the defendant was tried at the October term, 1906. In due time he filed his motion for a new trial, which was overruled on November 3rd, 1906. This order overruling his motion was set aside on November 5th, and afterwards on November 8th, the motion was again overruled. On November 12th, 1906, the defendant filed his motion in arrest of judgment, which motion was continued at his request until the December term, 1906, at which term it was overruled. No bill of exceptions was filed at the October term of the court, nor was any leave granted to file the same at a subsequent date or term. On February 2nd, 1907, an extention of time for filing the bill of exceptions was granted.

It seems too clear in view of the decisions above noted and the well established practice that these exceptions cannot be considered. Even had the bill been filed at the December term in the absence of any leave at the October term to do so, it would have been too late, as a continuance of the motion in arrest would not have saved matters of exception. There being then no valid bill of exceptions, it is obvious that nothing but the record proper can be considered on this appeal.

It follows then that any matter of alleged error in the admission or exclusion of testimony or in the giving or refusing of instructions cannot be considered.

II. Is the indictment sufficient to sustain the verdict and sentence? It will be observed that while the pleader attempted to charge larceny in a dwelling house, there is no allegation of the ownership of the house or any other or further identification of the same. The general doctrine in this State is that in statutes against larceny in a dwelling house, the phrase “dwelling house” has the same significance as in burglary, and it is well settled in this State that it is necessary to allege and prove ownership of the house charged to have been burglarized and the ownership of the chattel alleged to have been stolen. [State v. Jones, 168 Mo. 398; State v. James, 194 Mo. 268.]

Adhering to these precedents it must be held that the indictment did not sufficiently charge larceny in a dwelling house, but conceding that it did not charge larceny in a dwelling house, does it follow that it did not charge grand larceny? It will be observed that it does state that the money stolen was the personal property of one H. H. Hermann, aud was of the value of $160, and that the defendant did feloniously steal, take and carry away the same with the intent then and' there to deprive the owner of the use thereof and convert the same to his own use, against the peace and dignity of the State. In other words, it contains every substantive allegation essential to a good indictment for grand larceny, and the authorities generally hold that where the building is not properly described so as to bring the charge within the statute against larceny in a dwelling hoiise, the words “in a dwelling house” may be rejected as surplusage and the indictment remain good for grand larceny. The point was distinctly made in Com. v. Hathaway, 80 Mass. 392, but the court said: “If the building was not properly described, or the count in the indictment was insufficient in other particulars as charging larceny in a building, the conviction was still good for simple larceny.” And in State v. Richardson, 45 La. Ann. 692, the court quoted and applied Mr. Wharton’s language as follows: “All unnecessary words may, on trial, or arrest of judgment, be rejected as surplusage, if the instrument can be good on striking them out.” [Wharton’s Cr. Ev., sec. 138.] In that case the court held that where the indictment was fatally defective in charging burglary, nevertheless as an indictment for larceny it was sufficient in all respects, and the attempted charges of burglary were superfluous and would be disregarded. To the same effect see State v. Hupp, 31 W. Va. 355; People v. Laurence, 137 N. Y. 517; State v. James, 194 Mo. l. c. 275-280.

The indictment then being nothing more nor less than a sufficient charge of grand larceny and the jury having found the defendant guilty as charged in the indictment, it must needs follow that the verdict was responsive to the indictment and therefore the indictment was sufficient to sustain the verdict and the sentence.

All the other proceedings in the cause appearing from the record proper are regular and the judgment and sentence is therefore affirmed.

Burgess and Fox, JJ., concur.


author: FOX, J.

text:
    THE STATE v. STREETER FRASER, Appellant.
    Division Two,
    May 18, 1909.
    1. MOTION FOR NEW TRIAL: After Judgment and Sentence. The statute (Sec. 2689, R. S. 1899), expressly providing that the motion for a new trial shall be filed before the judgment is rendered, is mandatory; and if the motion is filed after judgment and sentence, nothing can be considered on appeal except the record proper.
    2. RECORD PROPER: Free from Error: Affirmance. Where there is nothing before the appellate court except the record proper and it is free from error — the information properly charging the offense of which appellant was convicted and being duly verified; the verdict in due form, finding the defendant guilty as charged, and assessing his punishment according to the statute; and the judgment rendered upon that verdict being in proper form — there is nothing that the appellate court can do on appeal except to affirm the judgment.
    Appeal from Laclede Circuit Court. — Eon. L. B. Woodside, Judge.
    Affirmed.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) The record proper shows that the motion for a new trial was filed after judgment and sentence. The motion for a new trial must be filed before judgment. This is mandatory. Therefore, there is nothing before the court but the record proper, and if no error appears in the record proper, this court will affirm the judgment. R. S. 1899, sec. 2689; State v. Brooks, 92 Mo. 591; State v. Maddox, 153 Mo. 473. (2) The information charges the offense in the language of the statute and is in approved form. Kelly’s Crim. Law and Prac., sec. 609; State v. Tutt, 63 Mo. 595; State v. Henley, 30 Mo. 509; State v. McGuire, 193 Mo. 226; State v. Heims, 179 Mo. 283; 3 Chitty, Crim. Law, 1117; State v. McG-raw, 87 Mo. 161; State v. Shields, 89 Mo. 259; State v. Tyrell, 93 Mo. 354; State v. Taylor, 136 Mo. 66. (3) The jury found defendant guilty of burglary, as was charged in the information. No finding was made as to larceny.. The verdict is responsive to the charge, and would protect defendant against another prosecution for the same offense, and defendant would be enabled to plead autrefois convict. State v. Bowe, 142 Mo. 441.
   FOX, J.

This cause is now pending before this court upon appeal by the defendant from a judgment of the circuit court of Laclede county, convicting him of burglary in the second degree'.

The record before us discloses that the defendant was tried and after the verdict was returned judgment was entered upon such verdict. Subsequent to sentence and judgment defendant filed his motion for a new trial.

Section 2689, Revised Statutes of 1899, expressly provides that the motion for new trial shall be filed before the judgment is rendered in the cause. This provision of the statute as to the motion for new trial being filed within four days has been held in a number of cases a,s being mandatory. [State v. Brooks, 92 Mo. l. c. 591; State v. Maddox, 153 Mo. l. c. 473.]

There is no necessity for discussing this proposition as to the effect of the motion for new trial being filed after sentence and judgment. In the case of State v. Pritchett, 219 Mo. 696, that question is fully considered, therefore what is said in that case is applicable to the case at bar. It was ruled in the Pritchett case that the failure to file the motion for new trial before sentence and judgment, with the additional failure to object and except to the court rendering judgment at that time before passing upon the motion for new trial, simply leaves the case in the appellate court upon thle record proper; therefore it follows, that as applicable to this case, there is nothing to be considered except the record proper.

Directing onr attention to the record proper, we find the information properly charges the offense of which defendant was convicted. It was duly verified by the prosecuting attorney. The verdict was in due form, finding the defendant guilty of burglary in the second degree as charged in the information, and the judgment rendered upon that vierdict 'seems to be in proper form; therefore there is nothing left to be done by this court except to affirm the judgment. It is therefore ordered that the judgment of the trial court in this cause be and is hereby affirmed.

All concur.


text:
    THE STATE v. ALBERT NERZINGER, Appellant.
    Division Two,
    May 18, 1909.
    1. INDICTMENT: Mayhem: Throwing Acid: Manner. An indictment charging defendant with putting out the eyes and burning another with sulphuric acid is not had because it does not give a description of the character of sulphuric acid, or state how it was used, whether by throwing it in her face or throwing her into it. The manner of applying the acid to her eyes was immaterial so long as by its use defendant put out her eyes feloniously and with his malice aforethought.
    2. -= — : -: In Words of Statute. Where the offense is a statutory one, and the indictment uses all the essential words of the statute, with sufficient other allegations to individuate the offense, it is sufficient.
    3. INSTRUCTION: Circumstantial Evidence: Impeachment of Witness. It is only when the State relies upon circumstantial evidence alone that an instruction on circumstantial evidence should be given; and where two witnesses for the State positively identify the defendant as the offender, and neither is successfully impeached, there is no room in the case for such an instruction. [Distinguishing State v. Woolard, 111 Mo 1. c. 256.]

      4. -: Definition of Reasonable Doubt. The court instructed the jury that, “If upon all the evidence you have a reasonable doubt of the defendant’s guilt, you should acquit; but a doubt to authorize an acquittal upon that ground, ought to he a substantial doubt touching the defendant’s guilt, and not a mere possibility of his innocence.” Another instruction given for the State read: “A reasonable doubt is a doubt based on reason, and which is reasonable in view of all the evidence. And, if, after an impartial comparison and consideration of all the evidence, you can candidly say that you are not satisfied of defendant’s guilt, you have a reasonable doubt; but if after such impartial consideration of all the evidence you can truthfully say that you have an abiding conviction of the defendant’s guilt — such a conviction as you would be willing to, act upon in the more weighty and important matters relating to your own affairs — then you have no reasonable doubt.” Held, that the latter instruction was entirely unnecessary, but it cannot be said to have been prejudicial to defendant.
    5. -: Sulphuric Acid: Declared a Corrosive Substance. Courts do not require proof of matters of common knowledge. It would not have been error for the court to have instructed the jury that sulphuric acid was a corrosive substance; but the instruction in this case left it to the jury to determine whether the sulphuric acid, thrown into the face and eyes of the prosecutrix, was a corrosive substance.
    G. -: -: Character and Defendant’s Knowledge of Character. An instruction which required the jury to find that the defendant, beyond a reasonable doubt, feloniously, on purpose, and of his malice aforethought, made an assault upon Lena, with the intent then and there to maim and disfigure her, and in pursuance to such intent did then and there wrongfully, wilfully and with malice aforethought cast and throw into the eyes of said Lena a quantity of sulphuric acid and that by reason of the throwing of such acid the eyes of said Lena were destroyed or burned out by said acid, and that if they found these facts then they would find him guilty, is entirely correct, and it was not necessary to qualify it by requiring the jury to find that the acid was of a character reasonably calculated to produce the result called for by the instruction, or that defendant knew its character.
    Appeal from. St. Louis City Circuit Court. — Eon., Eugo Muench, Judge.
    Affirmed.

      Thomas B. Harvey for appellant.
    (3) The court should have given the instruction on circumstantial evidence requested by defendant, the direct evidence having been thoroughly discredited and impeached. State v. Woolard, 111 Mo. 256; State v. Crone, 209 Mo. 330; State v. Robinson, 117 Mo. 649. And if the instruction was not correctly drafted, the court’s duty was to give a correct one. State v. Clark, 147 Mo. 20; State v. Reed, 154 Mo. 122; State v. Hendricks, 172 Mo. 654. (2) The last instruction given by the court and attempting to define a reasonable doubt is not correct. State v. Owens, 79 Mo. 632; State v. Young, 105 Mo. 639. (3). The first instruction incorrectly authorizes the jury to convict simply if they find that the defendant threw sulphuric acid into the face, regardless of the character of the substance or defendant’s knowledge of its character. (4) The second instruction assumes that sulphuric acid is a corrosive substance and relieves the jury of determining its character, and authorizes them to find from its. use an intent to destroy the eyes without the jury’s finding the character of the substance or defendant’s knowing it. State v. Myers, 198 Mo. 264; State v. Nueslein, 25 Mo. Ill; State v. Harper, 69 Mo. 425. (5) Defendant’s motion to quash the information should have been sustained. It does not describe the character of the weapon used, nor does it allege the. means, to-wit, the burning, by which the mayhem was committed, to have been feloniously done.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
    (1) 1. The information is sufficient. Sec. 1846, R. S. 1899; Bishop’s Directions and Forms, sec. 742; Tully v. People, 67 N. Y. 18; Sherwood’s Com., p. 130; State v. Headrick, 179 Mo. 302; State v. Kyle, 177 Mo. 661. 2. The statutory description of the offense in a case of this kind is sufficient. Greater “precision of description is as unnecessary as it is dangerous.” State v. Briley, 8 Porter (Ala.) 474; Kitchens v. State, 80 Ga. 810; U. S. v. Gunther, 5 Dak. (Ter.) 243; Guest v. State, 19 Ark. 407; State v. Absence, 4 Porter (Ala.) 397; State v. Harroun, 199 Mo. 526. 3. Neither the particular mode of committing the offense nor the particular weapon or means used is material. “The real inquiry is whether a limb or member has been disabled.” U. S. v. Scroggins, 27 Fed. Cases, 1000'. And the particular means employed to commit the crime may be laid as one thing and proved as another. State v. Mairs, 1. N. J. L. 457. Under a statute making it a felony to wound, it was held that the statement of the means whereby the wound was inflicted was surplusage and did not confine the crown to the means stated. 3 Bussell on Crimes, pp. 697, 698; Bex v. Owens, 1 Moody C. C. 206; Brigg’s Case, 1 Lewin C. C. 63. 4. The information here charges defendant with feloniously, wilfully, on purpose and of his malice aforethought, putting out the eyes of Lena Wunsch. This is sufficient. Neblett v. State, 47 Tex. Crim. App. 574; Davis v. State, 22 Tex. Crim. App. 50; State v. Girkin, 1 Iredell’s Law (N. C.) 121. 5. It was proper to describe the intent by charging conjunctively all the intents enumerated by the statute. The proof of any one will sustain the charge. Angel v. State, 2 Ya. Cases 231. 6. The putting out of the eyes and the act of burning are separately charged to have been done with felonious intent. 7. The information clearly informs defendant of the charge against him and together with the judgment constitutes a complete bar to a second prosecution. The injury in this case is one which renders a second offense of the same character against the same person impossible. Many of the formalities required in an indictment under the act of Coventry have been rendered needless by statutory changes and differences. Our statute defines the offense and prescribes tbe punishment. Under this statute the information in the case at bar meets all reasonable requirements. The motions to quash and in arrest of judgment were properly overruled. (2) There was direct and positive evidence of defendant’s guilt of the offense charged. Substantial evidence on which to base the verdict is all that is required. The conflict of evidence was for the jury. They settled it against defendant. That matter cannot be reopened here. State v. Rollins, 186 Mo. 505; State v. Miller, 188 Mo. 379; State v. McGee, 188 Mo. 4Ó9; State v. Smith, 190 Mo. 723. (3) Instruction 1 is drawn with áll the particularity of an indictment. It is, in every essential respect, a copy of an instruction once ap proved by this court. State v. Ma Poo, 110 Mo. 18. In another case a similar instruction was condemned, but only because the question which it submitted in proper form, was not included in the information. State v. Kyle, 177 Mo. 662.
   GANTT, P. J.

On the 8th day of July, 1907, the circuit attorney of the city of St. Louis filed in the office of the clerk of the circuit court the following information :

State of Missouri, Oity of St. Louis, ss.
Circuit Court of City of St. Louis, June Term, 1907.
Rickard. M. Johnson, assistant circuit attorney, in and for the city of St. Louis aforesaid, within and for the body of the city of St. Louis, on behalf of the State of Missouri, upon his official oath, information makes as follows:
That Alfred Nerzinger on the ninth day of June, in the year of our Lord, one thousand nine hundred and seven, at the city of St. Louis aforesaid, with force and arms, in and upon one Lena .Wunsch feloniously, wilfully, on purpose and of his malice aforethought did make an assault; and the said'Albert Nerzinger with a large quantity of sulphuric acid then and there feloniously, wilfully, on purpose and of his malice aforethought did put out the eyes, of the said Lena Wunsch, by then and there burning the said eyes of the said Lena Wunsch, with said sulphuric acid, with the intent then and there, her, the said Lena Wunsch feloniously, wilfully, on purpose and of his malice aforethought to maim and disfigure; against the peace and dignity of the State.
Rich M. Johnson,
Assistant Circuit Attorney.
State of Missouri, City of St. Louis, ss.
Rickard M. Johnson, being duly sworn, upon his oath, says that the statements made in the foregoing information are true.
Rich M. Johnson.
Subscribed and sworn to before me this 8th day of July, 1907.
Adolph Nast,
(Seal.) . Clerk of the Circuit Court,
City of St. Louis
(for criminal causes).

The defendant was arrested and duly arraigned and entered his plea of not guilty. The canse was then continued to the October term, 1907, and thereat the defendant by leave of court withdrew his plea of not guilty and filed a motion to quash the information. The motion to quash the information was overruled and the defendant was rearraigned and again pleaded not guilty. At the same term the cause was tried to the jury and the defendant was found guilty and his punishment assessed at twenty years in the penitentiary. In due time he filed his motion for a new trial and in arrest of judgment, which were overruled and he has appealed to this court.

The evidence on the part of the State in substance tended to prove that on the evening of Sunday, June 9,1907, Mrs. Lena Wunsch visited Kaiser’s Garden, in the city of St. Louis. About 8:30 p. m., of that evening she left the garden with an acquaintance of hers by the name of Lautenschlager and proceeded toward Grand avenue intending there to take the Grand avenue car. Her home was at 3113 S. Ninth street in the city of St. Louis. As Mrs. Wunsch and her escort arrived at the alley running south from Osceola street between Grand avenue and Thirteenth street, the defendant, Albert C. Nerzinger, partially emerged from the alley and threw sulphuric acid upon Mrs. Wunsch, entirely destroying her eyesight, and seriously burning her face, neck and upper part of her body. The injury was so severe that the woman’s eyeballs dropped from their sockets about three weeks later.

Both Lautenschlager and Mrs. Wunsch identified' the defendant as the man who threw the acid. An electric light twenty-five feet away shown directly upon the defendant. Some of the acid struck' Lautenschlager in the face. The strength of the acid was attested by the fact that it left brown spots where drops of it struck the board fence at the mouth of the alley where the offense was committed. After the assault as above described, defendant turned and ran back into the alley, then out of it towards Grand avenue and was lost to sight. When the acid struck them, both Mrs. Wunsch and Lautenschlager fell to the ground. She was taken into a drugstore at 3300 Meramec street and a physician was called and she was taken to the hospital; she was suffering excruciating pain during all this time. Her screams were heard over the telephone by Dr. Winter when he was called to come to the drug store to her. Dr. Winter, the physician, who first treated Mrs. Wunsch’s injuries, declared them to have been burned by sulphuric acid.

Defendant was arrested on information given to Dr. Winter by Mrs. Wunsch at the drug store where she was first taken. The defendant’s shoes were examined on the morning of June 10th, the day following the commission of the offense, and red spots were found on the uppers and on the strings. When asked how these spots came upon his shoes, defendant said he did not know and did not care. He admitted that he had worn these shoes the previous day.

Assistant city chemist, Otto A. Daudt, made an analysis of portions of the strings of the defendant’s shoes and found the spots thereon to be due to the corrosive action of sulphuric acid. The clothing which defendant, after his arrest, claimed to have worn on that night, was examined and no marks of acid found upon them.

As tending to prove a motive for the commission of this crime by the defendant, the State offered evidence showing that he and Mrs. "Wunsch had been acquainted some- two or three years; that for some time prior to November 3,1906, defendant and Mrs. Wunsch had been on quite friendly terms and seemed to have been thrown into each other’s society at defendant’s mother’s and sister’s homes, and also at Klaussman’s and Kaiser’s “gardens,” and other places of the kind. They also frequently met upon the streets near the Wunsch residence. On November 3, 1906, they quarreled, and defendant two days later went to Memphis, Tennessee, whence he wrote several letters to Mrs. Wunsch, the contents of .which do not appear by the evidence. The defendant then returned to St. Louis and wrote other letters to Mrs. Wunsch which she returned to him unopened. Defendant’s infatuation for Mrs. Wunsch became so great that he would lie in wait for her on the streets near her home, and would meet her and plead with her to resume their former friendship. He would send Mrs. Wunsch word that she was wanted at the telephone in order to induce her to come out on the street so that he might meet her and talk with her. He attempted to persuade her to get a divorce and go away with him. Some two weeks before the commission of the crime, defendant came to the Wunsch home and attempted to restore himself to the favor of Mrs. Wunsch. Failing in this, he declared to her that “if he could not have her, nobody else should.” She asked him if he intended to shoot her and he said: “You will find out, I will catch you anyway, you always ran away from me, but I will get you anyway. I will get you .where I want you.” Angered at his repulse, defendant’s parting words on that day were, “Rache ist suess” (Revenge is sweet).

To rebut the inference to be drawn from this character of testimony, the counsel for the defendant developed on cross-examination that Mr. and Mrs. Wunsch had separated about three weeks prior to June 9,1907. However, both the husband and the wife denied that there was any serious disagreement, he ascribing the separation to his wife’s temper, while she gave the cause as the husband’s habit of drinking and consequent mistreatment of her.

Wunsch had at one time, when Lautenschlager was rooming at the Wunsch home, ordered him from the house because of conduct between Lautenschlager and Mrs. Wunsch, which Wunsch did not approve of. What the conduct was did not appear from the evidence. Wunsch did not seem to attach much importance to the matter and both Lautenschlager and Mrs. Wunsch denied any impropriety.

The evidence tended to show that the defendant and Wunsch greatly differed in appearance. Defendant was thirty-three years old, short and dark with black hair and mustache. Wunsch was considerably older than the defendant and very slender and had white hair and white mustache. Both Lautenschlager and Mrs. Wunsch testified positively that the man who threw the acid upon Mrs. Wunsch, was the defendant, Nerzinger, and not Leo Wunsch, the husband.

The defense was an alibi. Rudolph Stinsler, who lived on the premises adjoining the alley, the entrance of which was into Osceola street which the State’s evidence fixed as the scene of the crime, testified that he was attracted by a woman’s screams at the place indicated on the night of June 9, 1907, and that it was about fifteen minutes after 9 p. m. • The proprietor of the drugstore at 3300 Meramec avenue and the physician who attended Mrs. Wunsch, corroborated Stinsler’s statement to some extent as to the time as stated by him. Defendant’s counsel read in evidence the testimony of Mrs. Wunsch and Lautenschlager as given at the preliminary hearing on July 3, 1907, wherein they had respectively fixed the time of leaving Kaiser’s garden at 9 p. m., and 9.10 p. m.

The. defendant’s brother and sister testified to his having spent the afternoon of June 9, Í907, at his home at 2342 Dodier street in St. Lonis and fixed the time of his departure therefrom at 7:15 p. m. Defendant testified that he left home that evening at 7:15 p. m. and went to Klaussman’s cave or grove at 8600 South Broadway; that the trip occupied about an hour; he then spent some time going through the grove and Mannion’s Park near by, in search of one Goodrich; that he found Goodrich at Klaussman’s and remained there until eleven p. m., when he went home, leaving there after midnight. As to his presence at Klaussman’s from 9:15 p. m., until about 11:00 p. m., defendant was corroborated by Daniel E. Naughton and William S. Goodrich and Edward Greene. Defendant denied having committed the crime charged and denied having seen Mrs. Wunsch on the evening of June 9, 1907, at all. Defendant denied having been at the Wunsch home recently before the 9th of June when the conversation, detailed by the State’s witnesses wherein he threatened Mrs. Wunsch, was alleged to have occurred. He testified that he was at work on these occasions at his business as a journeyman plumber, and in this he was corroborated by his then employer. He admitted frequent meetings by appointment with the prosecutrix prior to November 3, 1906; that he quarreled on the date mentioned and that he went to Memphis on November 5th, whence he wrote her. This last was stricken out on motion.

The shoes offered by the State were admitted by the defendant to be his and he testified that he had given the suit of clothes he had worn on that night to some prisoner, whose name he did not remember. He testified that he wore the shoes mentioned at his work sometimes, and Raisel his employer, and himself a plumber, testified that muriatic acid, and a brownish paste probably containing the acid named, were frequently used by plumbers in their work. Defendant was uncertain as to how .the spots got upon his shoes. There was also evidence that defendant’s reputation for peace and quiet was good, and that he was a sober and industrious workman.

Dr. Winter testified that while at the drugstore he asked both Mrs. Wunsch and Lautenschlager if they knew who had thrown the acid; and they both stated to him that they did not, because of the darkness and that the man had a slouch hat on pulled down over his face so that they could not see it. Dr. Winter further testified that either on the way to the hospital, or after arriving there, she said that she did not know who threw the acid, but told him to “arrest Albert Nerzinger; he is the man who would have done it because he swore he would be revenged, he swore he would be eternally revenged. He has money, he has $4,000, he can pay for it.” That thereupon he telephoned to the police, in accordance with the.request of Mrs. Wunsch, and gave them the name and address of the defendant as furnished to him by her.

Mr. Reilly, the aforesaid druggist, testified that after Mrs. Wunsch and Lautenschlager came to his drugstore, Lautenschlager asked her in German if she knew who threw the acid, and that she answered in German that he was a man of dark complexion or dark hair. Mr. Reilly, though with an Irish cognomen, is a native-born German and understands the language. Mrs. Wunsch denied making these statements to Dr. Winter.

I. The indictment was drawn to charge the offense of mayhem under section 1846, Revised Statutes 1899, which provides that: “Every'person who shall, on purpose and of malice aforethought, ..... put out an eye, .... of any person, with intent to kill, maim or disfigure such person, shall he adjudged guilty of mayhem, and, on conviction, he imprisoned in the penitentiary for a term not exceeding twenty-five years.”

It is objected that this indictment is faulty in that it does not allege that the thing done to accomplish the result was done feloniously. The indictment itself answers this contention.

Neither is the indictment had because it does not give a description of the character of sulphuric acid, or state how it was used, whether by throwing it in her face or thro'wing her into the acid. The manner of applying the sulphuric acid to her eyes was entirely immaterial so long as by this means he put out her eyes feloniously and with malice aforethought. We think the indictment fully advised the defendant of the charge he was to meet.

The industry of counsel has not furnished us with any decision of any court of last resort, or any reputable text-writer which sustains this contention that this indictment was and is not sufficient. This is a statutory offense and the indictment uses all the essential words of the statute with sufficient other allegations to individuate the offense. [U. S. v. Scroggins, 27 Fed. Cases 1000; Neblett v. State, 47 Tex. Crim. 573.]

II. Error is assigned upon the refusal of the circuit court to give an instruction requested by the defendant as to circumstantial evidence. The necessity for instructing the jury upon circumstantial evidence has often been considered by this court. In the very recent case of State v. Crone, 209 Mo. l. c. 330, 331, it was ruled that it is only when the State relies upon circumstantial evidence alone that an instruction on such evidence should be given. But the learned counsel insists that that case and State v. Donnelly, 130 Mo. 642, and State v. Robinson, 117 Mo. 649, are not in harmony with what was said in State v. Woolard, 111 Mo. l. c. 256. But a reference to that case will show that the refused instruction recognized the ruling in State v. Crone as correct; it says: ‘£ The court instructs the jury that in order to convict the defendant upon circumstantial evidence, alone, the circumstances tending to show his guilt should be established beyond a rational doubt,” etc. An examination of the testimony of the witness Brown in that case will show that he himself had been indicted for the killing of Yarbrough, and he testified that the prosecuting attorney said to him that if he would swear against Woolard, he would release him and turn him out of jail. Tie admitted that he had charged at least two other persons with having committed the offense, and had repeatedly said that Woolard did not do it. Besides that, the general reputation of the witness Brown was shown to have been very bad. In this case there was no attempt to assail the general reputation of Mrs. Wunsch or Lautenschlager, but it is insisted that her evidence was impeached by Dr. Winter and the druggist, who testified that Mrs. Wunsch and Lautenschlager both stated that they did not know who threw the acid into her eyes. It does appear, however, that Doctor Winter, on the way to the hospital, or after leaving there, was told by her to arrest Nerzinger, and it was upon her information that the defendant was arrested, so that this case is in all of its essential facts like that of State v. Crone, in which this court held that the witness in that case had not been impeached within the meaning of that term as used in Woolard’s case. In our opinion to have given an instruction in the form prayed by the defendant, or in the usually approved form of instruction on circumstantial evidence, would have been misleading, and there was no prejudice to the defendant in refusing the same for the reason that the court fully instructed the jury on reasonable doubt. The case of State v. Woolard was properly interpreted in State v. Donnelly, 130 Mo. 642.

III. The twelfth instruction given by the court is assailed as erroneous. It is in these words: “A reasonable doubt is a doubt based on reason, and which is reasonable in view of all the evidence. And, if, after an impartial comparison and consideration .of all the evidence you can candidly say that you are not satisfied of the defendant’s guilt, you have a reasonable doubt; but if after such impartial consideration of all the evidence you can truthfully say that you have an abiding conviction of the defendant’s guilt — such a conviction as you.would be willing to act upon in the more weighty and important matters relating to your own affairs — then you have no reasonable doubt.”

Previous to that, in instruction number seven, the court instructed the jury, “If, upon consideration of all the evidence, you have a reasonable doubt of the defendant’s guilt, you should acquit; but a doubt to authorize an acquittal on that ground, ought to be a substantial doubt touching the defendant’s guilt, and not a'mere possibility of his innocence.” It has often been remarked by this court that this last instruction embodied the true doctrine as to reasonable doubt in criminal causes. As said in State v. Leeper, 78 Mo. 470, its use in this form is'almost canonized, and this court has often admonished the circuit courts that it is better to adhere to instructions that have received the approval of this court and not to attempt definitions which add nothing to the meaning of well understood terms. So in this case, we think it was entirely unnecessary to give the twelfth instruction of which the defendant complains. But the question is, after all, whether this instruction was prejudicial to the defendant.

The Supreme Court of California in People v. Cadd, 60 Cal. 640, approved the following instruction: “A reasonable doubt is that state of the case which, after the entire comparisons and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say that they feel an abiding conviction to a moral certainty of the truth of the charge; that is, to a certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it.”

The Supreme Court of Indiana in Toops v. State, 92 Ind. l. c. 16, held that it was not error to instruct the jury that “evidence is sufficient to remove a reasonable doubt, when it is sufficient to convince the judgment of ordinarily prudent men of the truth of a proposition with such force that they would act upon that conviction, without hesitation, in their most important affairs.”

In People v. Hughes, 137 N. Y. l. c. 40, the Court of Appeals sáid: “Complaint is made of the charge as it respects the question of what constitutes a reasonable doubt. Substantially the court charged that it could not be said to exist where the jury are so firmly convinced of the facts necessary to establish thé prisoner’s guilt that if it was a very grave and serious matter affecting their own affairs they would not hesitate to act upon such conviction. A similar charge was approved in People v. Wayman, 128 N. Y. 585, and Miles v. U. S., 103 U. S. 304, to which the respondent calls our attention.”

In Giles v. State, 6 Ga. l. c. 285, C. J. Lumpkin said, in discussing an instruction on reasonable doubt: “Moral certainty is all that can be required. The proof should be such as to control and decide the conduct of men in the highest and most important affairs of life, and not a mere vague conjecture, a fancy, a trivial supposition, a bare possibility of innocence. . . . It is enough that the evidence, whatever he its character, whether positive or presumptive, direct or circumstantial, satisfies the understanding and conscience of the jury.”

In Lawhead v. State, 46 Neb. l. c. 609, the Supreme Court approved the following instruction: “The court instructs you that by a reasonable doubt is not meant that the accused may possibly be innocent of the crime charged against him, but it means an actual doubt having some reason for its basis. A reasonable doubt that entitles to an acquittal is a doubt of guilt reasonably arising from all the evidence in the case. The proof is deemed to be beyond a reasonable doubt when the evidence is sufficient to impress the judgment and understanding of ordinarily prudent men with a conviction on which they would act in their own most important concerns and affairs of life.”

In Miles v. U. S., 103 U. S. l. c. 312, the court said: “Attempts to explain the term ‘reasonable doubt,’ do not usually result in making it any clearer to the minds of the jury. The language used in this case, however, was certainly very favorable to the accused, and is sustained by respectable authority.” The instruction in that case was in these words: “The prisoner’s guilt must be established beyond reasonable doubt. Proof beyond a reasonable doubt is such as will produce an abiding conviction in the mind to a moral certainty that the fact exists that is claimed to exist so that you feel certain that it exists. A balance of proof is not sufficient. A juror in a criminal case ought not to condemn unless the evidence excludes from his mind all reasonable doubt; unless be be so convinced by the evidence, no matter what the class of the evidence, of the defendant’s guilt, that a prudent man would feel safe to act upon that conviction in matters of the highest concern and importance to his own dearest personal interest.”

In the light of all this judicial interpretation, we think that the 12th instruction cannot be said to have been prejudicial to the defendant, but as already said, we think it was entirely unnecessary to give it after having given the seventh instruction. In addition to this instruction on reasonable doubt, the court also gave one upon the presumption of innocence of the defendant. Indeed, taking it all together, we think the instructions were as favorable as the defendant could have asked.

IV. The first instruction is also challenged for the reason that the jury were not required to find that the acid was of a character reasonably calculated to produce that result and that the defendant knew its character. This instruction required the jury to find that the defendant, beyond a reasonable doubt, feloniously, on purpose, and of his malice aforethought, made an assault upon Mrs. Wunsch, with the intent then and there to maim and disfigure her, and in pursuance of such intent, did then and there wrongfully, willfully and with malice aforethought cast and throw into the eyes of said Lena Wunsch a quantity of sulphuric acid and that by reason of the throwing of such acid the eyes of the said Lena Wunsch were destroyed or burned out by the said acid, and that if they found these facts then they would find him guilty. We think this instruction was entirely correct without the qualifications suggested by counsel.

And the second instruction told the jury that if they found from the evidence that the defendant knowingly and willfully threw sulphuric acid, a corrosive substance, into the face of the prosecuting witness without just cause or provocation, then unless the facts and circumstances in the case satisfy them to the contrary, the law would presume and they might so find that such assault was made with malice aforethought, and with intent to destroy the eyes of said prosecuting witness. The law presumes that a person intends the natural and proper consequence of his own act. The contention that the court invaded the province of the jury in telling the jury that sulphuric acid was a corrosive substance, we think is without merit. On the contrary, it was left to the jury to find that it was a corrosive substance. But had it so told the jury, it would have committed no error, as courts, as well as juries, take cognizance of such matters as are of common knowledge and pertain to the affairs and experience of almost every man’s daily life. Courts do not require proof that fire will burn, or powder explode, or gas illuminate, or that many other processes in nature and art produce certain known effects, and nothing is more definitely settled in common experience than that sulphuric acid is corrosive. [State v. Hayes, 78 Mo. l. c. 318, and cases cited.]

We have carefully gone through all the exceptions in this ease and we are unable to find any error prejudicial to the-defendant’s rights. He was accorded a fair and impartial trial, and the evidence, if believed by the jury, as it evidently was, was sufficient to convict him of this most heinous offense.

The judgment of the circuit court should be and is affirmed.

Burgess and Fox, JJconcur.