text:
    THE STATE v. JAMES B. CARRAGIN, Appellant.
    Division Two,
    March 17, 1908.
    1. INFORMATION: Two Felonies in Different Counts. Different felonies growing out of the same transaction may be joined in the same indictment or information, provided the felonies are of the same degree and will admit of the same legal judgment, as, for example, counts for forgery and for uttering the same forged instrument as true knowing it to be false and forged.

      2. -: -: Conviction of Both. But a defendant cannot be convicted of both' distinct felonies charged in the same information, though they are of a cognate character. And it is error to instruct the jury that they may find defendant guilty under both counts; for instance, where the information charges forgery in the first count, and uttering the same forged instrument in the second count, the jury cannot be so instructed, even though the evidence may be sufficient to sustain a verdict upon both counts, and if the jury finds him guilty under both counts the verdict cannot stand.
    3. -:-:-: Election. The court, where cognate felonies growing out of the same transaction are charged in different counts, may instruct the jury to find defendant guilty under either, but not both, or it may compel the State to elect at the close of the evidence upon which count it will go to the jury.
    4. FORGERY; Variance.' Where the forged instrument set out in the information showed an indorsement by Baker alone, whose indorsement was charged to be forged, and the instrument offered in evidence showed both Baker’s indorsement and defendant’s genuine indorsement, there was no fatal variance between the information and proof.
    5. -; of Indorsement. A note made payable to defendant, signed by him, and having the name of another indorsed on the back by defendant, is a writing and written instrument within the meaning of the statute, Sec. 2019, R. S. 1899.
    Appeal from St. Louis City Circuit Court. — Hon. Wm. M. Kmsey, Judge.
    Reversed and remanded.

      Thos B. Harvey for appellant.
    The court erred in denying defendant’s motion to require the State to elect, at close of all the evidence; and again erred in telling the jury in its fourth instruction that they could convict of both offenses, and which said instruction was pointedly excepted to by defendant. The great weight of authority and the best considered cases sustain the following, to-wit: (1) Several counts may charge the commission of the offense in various ways in order to meet the proof. (2) In the absence of statute defining what offenses may be joined, an indictment containing counts for offenses of the same character and growing out of the same transaction, will not be demurrable; but the' prosecution will be required to elect. (3) In no event can a defendant be lawfully tried at the same time for two distinct and separate felonies; and a judgment for the two offenses will he set aside. Crawford v. State, 31 Tex. Crim. Eep. 53; Pitts v. State, 40 Tex. Crim. Eep. 667; 19 Cyc., 1410B; 9 Ency. PI. and Pr., 600', 604; Kelley, Crim. Law and Pr., p. 123.

      Herbert S. Hadley, Attorney-General, and Rush C. Lake, Assistant Attorney-General, for the State.
    (1) The information is in the.approved form, and meets the requirements of the statute. It correctly describes the instrument alleged to be the subject of forgery, and also the name of the person forged thereto. State v. Fenly, 18 Mo. 445 ;. State v.- Pierce, 136 Mo. 34. (2) The instructions properly declare the law as applicable to facts proven. (3) It was not error for the court to overrule the defendant’s motion to require the State to elect “upon which count it would stand and go to the jury.” The “forgery” and the ■“uttering of forged paper,” are two separate'and distinct offenses. Both may be, and in this case were, properly pleaded in one information, but under two separate counts • the first charging the forgery; and the second charging the uttering of forged paper.' The. jury might, under the information, have found the defendant guilty upon one count and not guilty under the other, according as they find' the facts to warrant their ’conclusion under the law. However, the jury found for the State under both counts of the information. (4) Although the instrument, upon its face, as set out in .the information, may have been of no binding'effect, it may nevertheless be the subject of forgery. State v. Eades, 68 Mo. 150; People v. Munroe, 100 Cal. 664; People v. Baker, 100 Cal. 188.
   GANTT, J. —

At the December term, 1905, the circuit attorney of the city of St. Louis filed an information, duly verified, in two counts, charging the defendant in the first count with forgery, and in.the second count with uttering said forged paper. The substantive part of both counts is as follows:

“That James B. Carragin on or about the ninth day of April in the year of our Lord, one thousand nine hundred-and three, at the city of St. Louis aforesaid, feloniously and wilfully did forge, counterfeit and falsely make a certain false, forged and counterfeit endorsement upon the back of a certain promissory note by which a pecuniary demand, obligation, right and claim to .money purported to be conveyed, transferred and created, said endorsement purporting to be made by one J. B. Baker, which said false, forged and counterfeit endorsement was so forged, counterfeited and falsely made upon a promissory note of the tenor following, that is to say,
“ ‘$75.00. St. Louis, Mo., April 9th, 1903.
‘ ‘ Thirty days after date I promise to pay to the order of Jas. B. Carragin, seventy-five-00.00 dollars, for value received at the International Bank of St. Louis, with interest from date at the rate of eight per cent per annum.
“ ‘Jas. B. Carragin/

And which said false, forged and counterfeit endorse-" ment on the back of said promissory note is of the ten- or following, that is to say—

“ ‘ J. B. Baker/

with intent thereby then and there feloniously to injure aud defraud; against the peace and dignity of the State.

“And the said Richard M. Johnson, Assistant Circuit Attorney as aforesaid, upon his oath aforesaid, further information makes that James B. Carragin on or about the 9th day of April, one thousand nine hundred and three, at the city of St. Louis aforesaid, unlawfully and feloniously had in his custody and possession a certain false, forged and counterfeit endorsement upon the hack of a certain promissory note, and by which said false, forged and counterfeit endorsement as aforesaid, a pecuniary demand, obligation, right and claim to money purported to be conveyed, transferred and created, said endorsement purported to be made by one J. B. Baker, and which said false, forged and counterfeit endorsement was so forged and counterfeited and falsely made upon a promissory note of the tenor following, that is to say,

“ ‘$75.00. St. Louis, Mo., April 9th, 1903.
“Thirty days after date I promise to pay to the order of Jas. B. Carragin, seventy-five 00-00 dollars, for value received at the International Bank of St. Louis, with interest from date at the rate of eight per cent per annum.
“ ‘Jas. B. Carragin/

And which said false, forged and counterfeit endorsement on the back of said promissory note, is of the tenor following, that is to say—

“ ‘ J. B. Baker/

and that the said James B. Carragin did afterwards, to-wit, on or about said ninth day of April, one thousand nine hundred and three, at the city of St. Louis aforesaid, State aforesaid, unlawfully and feloniously with intent to injure and defraud, pass, utter and publish as true the said falsely made, forged and counterfeit endorsément upon the said promissory note to John W. Benstein, he the said James B. Carragin then and there well knowing the said endorsement upon said promissory note to be falsely made, forged and counterfeited,- against tbe peace and dignity of the State.”

The evidence on the part of the State tended to prove that one Doctor Rice and John W. Benstein and the defendant were promoting a World’s Fair concession in 1904, all owning stock and being interested therein. Benstein had loaned the defendant money several times until an indebtedness of several hundred dollars existed in his favor against defendant. Defendant made an application for a loan of $75 and Ben-stein agreed to' loan it to him if he would give additional security, and the defendant said that one J. B. Baker would sign the note. It appears that Benstein then drew the note as set out in the information, and Carragin, the defendant, signed it and took the note to get the additional name on it, and a few hours later returned with the endorsement thereon of J. B. Baker. Thereupon Benstein let him have the $75 and took the note and afterwards deposited it with the International Bank for collection. When it was due it was protested for non-payment. Baker who was away from St. Louis at the time the noté was protested, testified that he promptly wrote the notary and the bank that he had not signed the note, and when he saw Benstein notified him to the same effect. Benstein had never met Baker prior to the execution of the note, but knew of the Baker family and understood that they were people of standing and reputation and he testified that upon the strength of that indorsement he took the note and let the defendant have the money. Benstein notified Carragin that Baker denied his signature on the note and defendant agreed to take it up. In March, 1904, Doctor Rice took from Benstein, among others, this note. Dr. Rice is the prosecuting witness in this case. The defendant admitted the execution of the note by himself and his own indorsement of it and its delivery to Benstein, but denies that he signed Baker’s name to it. He explained that after he received the note from Benstein, he took it to Lippe’s restaurant in St. Louis expecting to find Baker, but missed him and turned it over to one Neilson, who was to wait for Baker and have Baker sign it, and when he returned, Neilson gave him the note with the signature endorsed on it, “J. B. Baker,” and he then delivered it to Ben-stein. Neilson did not testify in the case. At the close of the State’s case, the defendant moved the court to direct the jury to acquit him because the note offered in evidence by the State was not the note purporting to be set forth according to the'tenor of the information and because a writing such as set forth in the information could not be the subject of forgery unless the name of the maker and payee, they being one and the same persons, be indorsed on the back of said writing, and unless indorsed, the paper was a nullity as it imposed no pecuniary liability upon any one, and- on the ground that the variance between the writing set out in the information and that introduced in evidence was fatal. The court overruled this motion and defendant excepted.

The court charged the jury that in the first count of the information defendant was charged with the forgery of an indorsement of the note therein set out, and in the second count he was charged with passing, uttering and publishing as true the forged indorsement. The court then instructed the jury that if at any time within three years next, before the filing of the information, the defendant knowingly and wilfully did forge, counterfeit and falsely make an indorsement of the name of J. B. Baker on the instrument described in the said first count, and that said indorsement purported to be the act of said J. B. Baker, and purported to be the written promise and undertaking of said Baker to pay the sum of $75 to the order of J. B. Carragin, thirty days after the 9th day of April, 1903, for value received, and that defendant knowingly and wilfully forged, counterfeited and falsely made said indorsement with the intent then and there and thereby to cheat, injure and defraud, they would find him guilty of forgery in the third degree and assess his punishment at imprisonment in the penitentiary for a term of not less than two years or more than seven years, and unless they so believe from the evidence they would acquit him from the charge of forgery contained in the said first count. The court further instructed the jury that if at any time within three years nest before the filing of the information, the defendant knowingly and wilfully did pass, utter and publish as true, to one John W. Benstein, the instrument set out in the second count of said information, and that said instrument had indorsed thereon the name of J. B. Baker, which indorsement purported to be the act of said Baker, and that the said indorsement was not the true and genuine act of said Baker, but was at the time forged, counterfeited and falsely made and the defendant at the time knew said indorsement was forged, counterfeited and falsely made and that he so passed, uttered and published the same as true, with the intent then and thereby to cheat and defraud, they would find him guilty of forgery in the third degree as charged in the second count and assess his punishment at imprisonment in the penitentiary for a term of not less than two years or more than seven years, and unless they so believe, they would acquit defendant of the charge of forgery in said second count. The court then charged the jury that “under the information and the evidence in this case you may find the defendant guilty under both counts of the information, or you may acquit him under both counts of the information, or you may convict him under one count and acquit under the other, according as you may find the facts to be.” To the giving of all of the instructions tbe defendant duly objected and saved bis exceptions for tbe reason that they did not properly declare tbe law applicable to- tbe facts and did not correctly declare tbe law arising under such facts, and. because tbe court improperly directed tbe jury that they might convict of both offenses.

Under the evidence and the instructions of the court the jury found the defendant guilty of forgery in the third degree as charged in both of said counts and assessed his punishment on the first count at imprisonment in the penitentiary for two years and on the second count for an additional term of two years. A motion for new trial was lodged in due time on the ground that the verdict was against the law and the evidence and because the court overruled defendant’s motion to require the State to elect on which count it should proceed to the jury and because the instructions were improper and incorrect. This motion was overruled and the defendant duly excepted. The defendant then filed his motion in arrest, challenging the sufficiency of the information on various grounds, which motion was also overruled, and defendant was sentenced in accordance with the verdict, and from that sentence appeals to this court.

I. The principal insistence for a reversal of the judgment is that the court erred in refusing defendant’s motion at the close of the evidence to require the State to elect upon which count it would go to the jury and in instructing the jury that they might convict the defendant of both offenses over the objections and exceptions of - the defendant. This record presents fairly and squarely the proposition that the defendant cannot be tried and convicted of two distinct felonies under one indictment in one trial. It is insisted by the learned counsel for the defendant that while several counts may be joined in one indictment or information, when the purpose of the various counts is simply designed and calculated to adapt the pleadings to- the different aspects in which the evidence on the trial may present, a single transaction, yet, in such cases, the defendant can be convicted of one offense only. And that in the absence of a statute defining what offenses may be joined, an indictment containing two or more counts for offenses of the same character and growing out of the same transaction, will not be demurrable, but the prosecution will be required to elect, but that in no event can a defendant be lawfully tried at the same time for two distinct and separate felonies and be convicted of both.

By section 1891, Revised Statutes 1899, it is provided: “If any person in committing burglary shall also commit a larceny, he may be prosecuted for both offenses in the same count," or in separate counts of the same indictment, and, on conviction of such burglary and larceny, shall be punished by imprisonment in the penitentiary, in addition to the punishment hereinbefore prescribed for the burglary, not less than two nor exceeding five years.” And by section 2523, it is-provided that “counts for larceny and embezzlement may be joined in the same indictment, and counts for larceny and obtaining any property or instrument by false pretenses or tokens may be joined in the same indictment.” And by section 2524, “when, by law, an offense comprises different degrees, an indictment may contain counts for the different degrees of the same-offense, or for any of such dgrees.”

In some states, for instance, Arkansas, Iowa and New York, it is provided by statute that, “An indictment, except in cases mentioned, must charge but one offense.” But we have no such express statutory provision in Missouri.

In State v. Porter, 26 Mo. 201, the indictment contained three counts, one for larceny and two for embezzlement, and the defendant moved the court to compel the prosecutor to elect upon which count he would proceed, which the court refused, and it was assigned as error. After reciting the statute of 1855, which provided, “Counts for larceny and embezzlement may be-joined in the same indictment,” and a statute then known as section 15 of article 9 of the act concerning crimes, which declared that upon an indictment for larceny, a defendant might be convicted of embezzlement, and vice-versa, he might be convicted of larceny under an indictment for embezzlement, this court said :- “In point of law, however, and without reference' to-these statutes, it is not error to insert in the same indictment several distinct felonies, though committed at different times, provided, they are of the same degree, and will admit of the same legal judgment. If the several counts refer to different transactions, in point of' fact, it is a matter of discretion with the court to compel the prosecutor to elect upon which count he will proceed, and the power ought to be exercised in cases where the offenses are distinct and of a different nature and calculated to confound the defense. "Where the offenses are of .the same character, differing only in degree, as, for example, forging a note, and publishing it knowing it to be false, the defendant may be-tried upon both charges under the same indictment.” Upon this statement of the law, the State bases its claim that it was perfectly competent, not- only to unite in the indictment in this case the two counts, one for forgery and the other for uttering the false instrument knowing it to be forged, but that it was entirely proper to submit both offenses to the jury, and that a conviction and sentence for both should he sustained.

It will be observed that in State v. Porter, supra, there was an express statute, which permitted counts for larceny and embezzlement-to be joined in the same indictment and another statute expressly provided that upon an indictment for larceny the accused might he convicted of embezzlement, and vice-versa that he might be convicted of larceny on indictment for embezzlement, and hence there can be no doubt whatever under our statutory law that counts for larceny and embezzlement could be joined, and therefore the facts in that case did not call for the statement made in that opinion that “it is not error to insert in the same indictment several distinct felonies committed at different times.” Moreover, in the same opinion Judge Napton said: “All the counts in this indictment relate to the same transactions, and are framed on different sections of the statute to meet the evidence which the trial might elicit.” After a careful consideration of this case, we think that the assertion that distinct offenses committed at different times may be joined in the same indictment, states the rule too broadly, and if it is meant "thereby, as is insisted by the State, that a party may be charged with distinct felonies committed at different times, that they' may be joined in the same indictment and. he may be punished for both, then such a rule is contrary to the great weight of authority in this country. The case upon which the learned judge evidently based his statement is People v. Rynders, 12 Wend. 425. That was an indictment for forgery of a check and for publishing it as true knowing it to be false. Savage, C. J., said: “Was the district attorney compelled to elect which count he would proceed upon? That' there would be an incongruity in incorporating in the same indictment offenses of a different character, such for instance as forgery or perjury, cannot be denied, and that in such case, the court would refuse to hear a trial upon both, there can be no doubt; but when offenses of the same character, differing only in degree, are united in the same indictment, the prisoner may and ought to be tried on both charges at the same time.' Such is this case. The prisoner was indicted for forging the check, and also for publishing it as true, knowing it to be false. These are different offenses, and punished with different degrees of severity, but were properly united, both in the indictment and the trial. The prisoner might be convicted of one, and not of the other. So also I might give instances of murder or manslaughter, of grand larceny and petit larceny, and an assault with intent to murder, etc.; in which case no court would refuse to try the prisoner upon all the offenses charged.” In that case, however, the trial court did not instruct the jury they could find the defendant guilty under both, counts, but told the jury that they could find him guilty if they believed he did either. From the report of the case it does not appear what the verdict of the jury was, save by inference, that they found him simply guilty of forgery according to the common law practice and left it to the court to impose the sentence and punishment, and it does, not appear that the court inflicted punishment on each of the counts in the indictment.

In State v. Gray, 37 Mo. 464, the defendant was indicted for larceny and receiving stolen goods knowing them to have been stolen. He was found guilty by the jury of receiving stolen goods knowing them to have been stolen. It was insisted in this court that the circuit court erred in refusing to compel the State to elect on which count in the indictment a conviction was sought, but this court said: “The practice is well settled and firmly established in this State, that a motion to compel the prosecutor to elect the count on which the trial shall be had, is always addressed to the discretion of the court, and this court will not interfere with the exercise of this discretion, unless it is manifest that it has been abused to the obvious and palpable detriment of the accused. It is often indispensably necessary to include several counts in -the same indictment, to meet the proofs which may - be-given on the trial; and to arbitrarily compel an election in all instances would tend to cripple prosecutions, and defeat the ends of justice. [State v. Jackson, 17 Mo. 544; State v. Leonard, 22 Mo. 449.] ... In the-case here, the indictment contained two counts; one for grand larceny, the other for receiving stolen goods.. No evidence was given as far as one of the counts was concerned (to-wit, larceny), and the ruling of the court could .in no wise operate to the injury or prejudice-of the prisoner.”

The case of State v. Jackson, 17 Mo. 544, was for an assault with intent to kill, and there were several counts in the indictment, and the defendant moved the-court to compel the State to elect under which count it would proceed, and this was denied. This court said .- “When the court can see from the indictment that there-is but one crime charged, although there are several counts in which the transaction is set forth in a different manner, and with different words, and different averments, calculated to meet the different statements-of the witnesses who are expected to prove the offense, it would cripple the prosecution to make the State-elect,” and held there was no- error in overruling the motion to elect, because, “the indictment shows that the shooting was the offense and the counts set forth and alleged this offense in different phraseology.” And to the same effect was State v. Leonard, 22 Mo. 449, which was an assault with malice aforethought with intent to kill, and the defendant was found guilty on the first count and not on the second.

In State v. Daubert, 42 Mo. 242, the indictment contained two counts, the- first for larceny, and the second for receiving stolen goods knowing them to have been stolen. There were two defendants jointly charged; there was a motion to elect, which was overruled. Wagner, J., in' reviewing the action of the court in refusing to require an election, said: “Where the offense charged in the second count is of the nature of a corollary to the original felony, as in larceny and the receiving of stolen goods, a joinder is good; and whenever'there is a legal joinder, the court may exercise its discretion as to an election. There is no such obvious injustice exhibited in the present case as to enable us to say that there was abuse of a sound discretion. The defendants were jointly put upon their trial, and, after all the testimony wag delivered to the jury., the prosecuting attorney entered a nolle prosequi as to Henry Daubert on the first count, and as to Louisa Daubert on the second count. ■ ■ The defendants then moved to quash the indictment, but the motion was overruled. There was a mistrial as to Louisa and a verdict of guilty as to Henry. The proceeding is anomalous and no precedent has been found supporting the action of the criminal court. As a general rule, where the offenses are several, distinct and independent, there can be no joinder. The action of the circuit attorney in entering a nolle against Louisa on the second count, and Henry on the first count, changed the whole scope, tenor and meaning of the indictment. It then amounted to an indictment charging two several offenses against distinct defendants, who had no necessary connection with each other.” And accordingly the judgment was reversed.

In State v. Richmond, 186 Mo. 71, it was ruled that it was proper to join counts for larceny and receiving stolen goods in the same indictment, but in that case the court required the State, at the close, of the evidence, to elect, and the case proceeded for receiving stolen goods alone, and it was ruled that no possible error could have resulted to the defendant from the joinder, in view of the election required by the court.

In State v. Hargraves, 188 Mo. 348, the indictment was for murder in four different counts, and it was ruled that this was entirely proper, citing State v. Porter, 26 Mo. 201, and State v. Pitts, 58 Mo. 556.

Numerous other cases are to be found in this State which announce the same general doctrine of the above-cited cases, so that it may be confidently stated that the practice is well settled and entirely proper to insert several counts charging the same felony in different ways to meet the varied phases of the evidence, and that it is not error to join in the same indictment counts for different felonies growing out of the same transaction, provided they are of the same degree and will admit of the same legal judgment, as counts for larceny and receiving stolen goods knowing them to have been stolen, and counts for forgery and for uttering and publishing the same forged instrument as true knowing it to be false and forged. So that while forgery is one offense and uttering a forged instrument as genuine is a distinct offense, as held- by this court in State v. Williams, 152 Mo. 115, and the cases therein cited, they are offenses of cognate character, or in the language of Judge Wagner, in State v. Daubert, 42 Mo. 242, the one is in the nature of a corollary to the other and intimately connected with the same transaction, and there was no error in not requiring the prosecution to elect upon which count it would seek a conviction. But while this court has uniformly ruled that these two offenses may be charged in the same indictment in separate counts, it has not held that a defendant could be convicted of both of said felonies under one indictment and in one trial. No trouble whatever is experienced in submitting to a jury different grades of the same offense and leaving them to find the particular degree of offense of which the prisoner may be guilty under proper instructions as to the essentials of each grade, as in murder and manslaughter, grand and petit larceny, assaults with intent to kill and common assaults. And there is authority that this court considered it not improper to submit to the jury both the counts under an- indictment charging the defendant in one with larceny and in the other with receiving stolen goods knowing them to have been stolen. This was evidently the case in State v. Sutton, 64 Mo. 107, in which case the defendant moved the court to require the State to elect on which count it would go to trial, but it was overruled, this court saying in that case the several counts refer to the same transaction in point of fact and only a single offense was intended to be charged. The two counts were resorted to to meet the evidence as it might transpire on the trial. The party could not have been convicted of both stealing the tobacco and receiving it knowing it to have been stolen. If guilty under the first he could not have been convicted under the second, and vice-versa. The court did not err in overruling the motion. In that case the jury found the defendant guilty under the second count. We can readily see that, under proper instructions sub-, mitting to the jury the guilt of- the defendant in the alternative, this course was proper and in many cases would work no injustice to the defendant, as the State might be seriously crippled if it were not permitted to go to the jury upon the evidence as to the different phases of the testimony and it might not always be proper to require the State to elect at its peril upon which count it would. seek a conviction. In State v. Jackson, 89 Mo. 561, the State was not required to elect in the first instance, but the court instructed the jury to acquit on the second count.

In Crawford v. State, 31 Tex. Crim. l. c. 54, the prisoner was indicted for forgery and uttering a forged instrument, and under the charge of the court was found guilty of both offenses and punished by imprisonment in the penitentiary for two years for each; •from that conviction; 'he appealed. Said the court: “Can defendant he convicted of two felonies under the same indictment, and be punished for each? The learned trial judge admits in his argument that there .is no precedent for such a proceeding as the one at bar to be found in the Texas decisions, nor, indeed, •can any well-considered case be found in any State, except in those courts in which the judge assesses the punishment, and where he is limited in the aggregate ‘to the highest punishment that can be given upon any •one count. "We have no such law in Texas. "We have no desire to establish any such precedent, and- certainly have no occasion to do so in a case like this, in which a paltry order for $1.50 was drawn by an ignorant negro, in his employer’s name (for whom he was working on shares), upon a country merchant. The object in inserting various counts in an indictment is not to ¡secure separate convictions for as many counts, but to meet the various phases of the testimony; and it is permissible and proper to charge all the felonies which go to make up the offense committed by the defendant, but not to charge different offenses committed at different times and in different transactions. If that could be done, a man could be crushed by accumulating charges, or injured by their solemn presentation to the jury. Where two or more felonies are charged in the- same indictment, the presumption is, they are parts of the same transaction, and are to be sustained by the same evidence; and while they all may be submitted to the jury, there can be but one conviction, which, as it were, appropriates the guilty intent which runs through and connects these several acts or •offenses and makes them one. ’ ’ The learned court then cites, in support of this statement of the law, Bishop on Crim. Proc., sec. 448; Archb. Crim. Proc., 295, and note.

In Mayo v. State, 30 Ala. 32, Walker, J., in referring to People v. Rynders, 12 Wend. 425; Arclib. Crirn. Pleading, 95, note one, and other authorities, said: “The principle to be extracted from these authorities is, that the court should always interpose, either by quashing the indictment, or by compelling an election, where the attempt is made, as manifested by either the indictment or the evidence, to convict the accused of two or more offenses growing out of distinct and separate transactions; but should never interpose in either mode, where the joinder is simply designed and calculated to adapt the pleading to the different aspects in which the evidence on the trial may^ present a single transaction. It is not in any way shown that the purpose or effect of the joinder in this case was to require the accused to answer two distinct offenses; and the court, therefore, properly refused to compel an election by the State.” In that case, the joinder was embezzlement and larceny, and the court confined the State to a single transaction and directed the jury to consider only the charge of embezzlement. To the same effect is People v. Kemp, 76 Mich. 410, the Supreme Court saying: “The court was not in error in refusing to require the prosecutor to elect upon which count he would claim a conviction. All the counts were for forging and uttering the same identical indorsement upon the check, and the same check and indorsements were set out in each count of the information. In such case, the prosecutor should not be required to elect. ’ ’

In State v. Lincoln, 49 N. H. l. c. 471, the court said: “Where different offenses are joined in one indictment, the prosecutor will not be compelled to elect at the outset, for that would take away all the advantage of adapting the indictment to the contingencies of the evidence; but the court will always take care that the defendant is not convicted of two offenses under the same indictment.” [See, also, McGregg’s. Case, 4 Blackf. (Ind.) 103.]

In Wharton’s Crim. Pleading and Practice (9 Ed.), section 737, it is said that the practice at common law, when there is a general verdict of guilty upon several •counts in the indictment relating to the same transaction, is to render judgment on the count charging the highest grade of offense, the prosecution either expressly or tacitly withdrawing the other counts. And this is the rule in New York, and we think this practice should he kept in view in considering the cases from those states in which the practice still obtains of restricting the jury to a verdict of guilty or not guilty and leaving it to the court to assess the punishment.

In People v. Adler, 140 N. Y. 331, the indictment was for forgery in one count and for uttering the same forged instrument in another count, and the court held that the joinder was proper, and said: “Where the accusation is of the commission of a certain crime, and the indictment sets-forth two or more offenses of the same nature, based upon the same or a continuous set of facts, either of which offenses make him guilty of the same crime, the prisoner cannot be prejudiced.” In People v. Frank, 28 Cal. 513, it was held that where, in defining an offense, a statute enumerates a series of acts, either of which separately, or altogether, may constitute the offense, all such acts may be charged in a single count, for the reason that, notwithstanding each act may by itself constitute the offense, all of them together do no more, and likewise constitute but one and the same offense; and that an indictment which charged the defendant in the same count with having forged an indorsement on a draft, and also with having uttered and passed the draft knowing the forged indorsement to have been written thereon, did not charge the two offenses. With us, however, the two offenses could not be properly charged in the same count. In State v. Jackson, 90 Mo. 156, the indictment contained two counts, one for forging a promissory note and the other for uttering the same. Among other things, it was said by this court: “It is also insisted that the judgment should he reversed because the jury returned a general verdict of guilty, Under the rule of this court in the cases of State v. Pitts, 58 Mo. 556; State v. Hollenscheit, 61 Mo. 302, and State v. Scott, 39 Mo. 424, a general verdict is sufficient when the two counts in one indictment relate to the same transaction, or when each count is framed on a different section of the statute relating to the same of-sense.”

From the foregoing authorities we deduce the principle that it would have been proper for the circuit court to have instructed the jury on the evidence produced in- this case, .after defining wbat would constitute a forgery of the indorsement, and uttering the same, that they might find the defendant guilty under either count of the indictment accordingly as they found the facts to be, but not upon both, or have required the prosecuting attorney at the close of the evidence to have elected upon which count he would ask a conviction. In instructing the jury that they might find the defendant guilty under both counts, and in refusing to require the prosecuting attorney to elect after all the evidence was in, the court committed reversible error. We know of no case under our practice in which an accused may be tried and convicted of two distinct felonies except in the case of burglary and larceny, which is expressly allowed by statute.

II. Again it is insisted that there was a fatal variance between the instrument described in the information and the note offered in evidence. The information did not allege and set out .in its description of tlie forged instrument the indorsement of the defendant Carragin thereon, hut the note offered in evidence had the indorsement of the defendant, the maker of the note, on it. Section 2534, Revised Statutes 1899, provides that: “Whenever . . . there shall appear to be any variance between the statement in the indictment or information and the evidence offered in proof thereof, ... in the name or description of any matter or thing whatsoever, therein named or described, . . . such variance shall not be deemed grounds for an acquittal, unless the court before which the trial shall be had shall find that such variance is material to the merits of the case and prejudicial to the defense of the defendant.-’ ’ The circuit court has not so found and we think it obvious that the mere omission in the information of the genuine indorsement of defendant on the note is not reversible error.

III. As to the last, assignment of error, that the indorsement was not such an “instrument or writing” as is contemplated by the statute denouncing forgery, we think that an indorsement comes clearly within the letter and the spirit of our statute, section 2019, Revised Statutes 1899, which provides: “Every instrument, partly printed and partly written, or wholly printed, with a written signature thereto, and every signature of an individual, firm or corporate body, . . . and every writing purported to be such signature, shall be deemed a writing and a written instrument within the meaning of the provisions of this chapter.”

For the reason that the court erroneously refused to require the circuit attorney to elect on which count he would go to the jury and directed the jury they could convict defendant on both counts, and defendant was convicted on both counts, the judgment is reversed and the cause remanded for new trial.

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


source: Caselaw Access Project

author: FOX, P. J. —

license: Public Domain

text:
    THE STATE v. CLARENCE O. SKINNER, Appellant.
    Division Two,
    March 17, 1908.
    1. EMBEZZLEMENT: Information: Conversion: Owner’s Consent. It is not essential, under See. 1918, R. S. 1899, that the information charging embezzlement should contain an allegation that the money was converted by defendant without the consent of the owners.
    2. -: -: Funds of Labor Union: Name of Members not Alleged. It is not necessary that the information, charging defendant as treasurer with the embezzlement of the'funds of an unincorporated labor union, set out the names of the various parties composing the organization or partnership. Sec. 1918, R. S. 1899, is broad enough to embrace embezzlement by an officer of any trade organization or benevolent association, incorporated or unincorporated.
    3. -: Unlawful Organization: In Restraint of Trade. A' bill posters’ and billers’ union is not an unlawful organization in restraint of trade, but like other unions, one for the promotion of the welfare of its members. But, even if it were unlawful, a defendant who as its treasurer embezzles its funds received by him as such, is not permitted to make that defense.
    4. -: Sufficiency of Evidence. The testimony introduced by the State shows the existence of a trade organization; that defendant was its acting treasurer; that as such he received funds belonging to it; that when arrested he was told by the officer that the union accused him of taking about .$700 of its funds; that he replied to this, “I don’t care what they say I took; it was about $600;” that he stated at a meeting of the union that he had in the treasury between six and seven hundred dollars; that a day or two later he by letter informed one of the members that his books and vouchers would be found on his . desk in'the office of the union; that the next seen of him was four months later when he was arrested; that when asked after his arrest what he did with the money, he Said, “Used it at various times for various purposes.” Held, sufficient' to support a verdict of guilty of embezzlement.

      Appeal from. St. Louis City Circuit Court.— Hon. Won. M. Kinsey, Judge.
    Affirmed.

      Hans Wulff and Henry M. Walsh for appellant.
    (1) The information did not fully inform the defendant of the character of the offense with which he was charged,- by failing to set out the names of the various parties constituting the association or partnership and thus failed to inform the defendant who his accusers were. State v. McChesney, 90 Mo. 120; State v. Beaucleigh, 92 Mo. 490; State v. Stowe, 132 Mo. 199’. (2) There was no evidence to show the amount of money which had been paid to the association and to which it could legitimately and legally claim title. (3) If this association under the statute could not maintain a suit for the recovery of the money which it is alleged was in the hands of the defendant, it would not be possible to prosecute defendant forthe embezzlement of the money to which they could not sustain a legal title. Bishop v. American Brewers Company, 157 HI. 284. (4) A prosecution will not lie for an embezzlement of funds from an association which has an illegal purpose, although a prosecution could lie for a larceny, the difference being that a larceny carries with it a trespass and violence, while the embezzlement is predicated upon a wrongful conversion of funds acquired rightfully from a legal owner for a lawful purpose, the statute making the difference. (5) There was no evidence to show that defendant had ever an accounting or that any demand had been made on him for the funds; on the contrary, the only evidence along this line was to the effect that at the time of his arrest he was actually going to meet his associates, no evidence of ¡any character being introduced to show that there was even any suspicion as to defendant’s honesty until lie was arrested; therefore, the State failed-to show any criminal intent on the part of the defendant. State v. Jennings, 98 Mo. 495. (6)' The information failed to charge that the money was converted without the consent of the owners by the defendant to his own use with the intent to deprive the owner of the use of the said money permanently. State v. Pollock, 105 Mo. App. 273. (7) Mere conversion of funds is not embezzlement, but the State must show intent to convert to own use. Home Lumber Co. v. Hartman, 45 Mo. App. 647.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The information, which was accompanied by the affidavit of the assistant circuit attorney, is sufficient in form and substance. Kelley’s Crim. Law, sec. 680. (2) The evidence for the State was properly admitted, as it tended directly to show that the defendant received the money into his hands, which belonged to the union; that he received it as treasurer ■of said union, and that he failed to account for and pay it over to his successor, as requested. The admissions made by the defendant, and his conduct, clearly showed that he is guilty, and all of said evidence was properly admitted. (3) The evidence was sufficient to justify the jury in convicting the defendant of the crime of embezzlement. If the State’s witnesses testified correctly, and of this the jury have so found, then he was properly convicted. There being substantial evidence of the guilt of the defendant, and the verdict of the jury having been approved by. the trial court, this court will defer thereto, and not attempt to pass on the weight of the testimony. State v. Smith, 190 Mo. 706; State v. Groves, 194 Mo. 452; State v. Payne, 194 Mo. 442; State v. Swisher, 186 Mo. 8.
   FOX, P. J. —

This cause is brought to this court by appeal on the part of the defendant from a judgment of the circuit court of the.city of St. Louis, convicting him of the offense of embezzlement. The conviction and judgment in this case are predicated upon an information filed by the assistant circuit attorney on the 18th day of December, 1905, which was duly verified. Omitting formal parts, it was as follows:

“Richard M. Johnson, Assistant Circuit Attorney, in and for the city of St. Louis aforesaid, within and for the body of the city of St. Louis, on behalf of the State of Missouri, upon his official oath, information makes as follows:
“That Clarence O'. Skinner on or about the fourteenth day of March, in the year of our Lord, one thousand nine hundred and five, at the city of St. Louis aforesaid, was a member of the Bill Posters’ and Billers’ Union, Local Number Five of the city of St. Louis and State of Missouri, and the said Clarence O. Skinner, being then and there an officer of said, Bill Posters’ and Billers’ Union, Local No. Five, to-wit, treasurer, duly appointed, elected and qualified under the laws, rules and regulations of said Bill Posters’ and Billers’ Union, Local No. Five, and that by virtue of his said membership., office and official position in said Bill Posters’ and Billers’ Union, Local No. Five, did then and there receive and have in his custody and possession, care and control, the moneys of the said Bill Posters’ and Billers’ Union, Local No. Five, to a large amount, to-wit, six hundred and sixty dollars, lawful money of the United States, and was by virtue of his said membership, office and official position in said Bill Posters’ and Billers’ Union, Local No. Five, trusted with the safe keeping and disbursement of said moneys belonging .to and being the property of the said Bill Posters’ and Billers’ Union, Local No. Five, according to the laws, rules and regulations of the said Bill Posters’ and Billers’ Union, Local No.. Five, and being so entrusted with and having the care, custody and control as aforesaid of said moneys, to-wit, the said sum of six hundred and sixty dollars, of the value of six hundred and sixty dollars, all the moneys and property of and belonging to the said Bill Posters’ and Billers’ Union, Local No. Five, by him, the said Clarence O. Skinner, received and taken into his possession, care and custody and control by virtue of his said membership, office and official position in said Bill Posters’ and Billers’ Union, Local No. Five, as aforesaid, for safe keeping and disbursement as aforesaid, did then and there unlawfully, feloniously and fraudulently embezzle and make away with and convert to his own use,. and the said sum of money in the manner and form aforesaid, feloniously did steal, take and carry away; against the peace and dignity of the State.”

At the April term, 1906, of said court the defendant was put upon his trial. The evidence upon the part of the Sthte tended to prove that the Bill Posters’ and Billers’ Union was a labor organization, organized some time in 1901; that its object was to promote the welfare of its members; that it was a voluntary association and had a constitution and by-laws; that the officers of the organization consisted of president, vice-president, corresponding and financial secretary and treasurer, also a0recording secretary and three trustees. The evidence further tended to prove that the defendant was elected to the office of treasurer of the Bill Posters’ and Billers’ Union, Local No. 5, in December, 1903, and installed in office about the first of the year 1904; that he was re-elected to the office of treasurer in 1904, and continued to hold such office until the 14th day of March, 1905. The defendant was the successor in office of one H. W. Lake. About the month of February or March, 1904, defendant, as treasurer, received- from Lake funds of the organization amounting to something less than eight hundred and more than seven hundred dollars; the sum of money transferred bv Lake to the defendant consisted of two hundred dollars in cash and a sum of money evidenced by a deposit book. This transfer was made in the presence of one John W. Owen. At a meeting of this organization on the evening of March 13, 1905, defendant stated in answer to inquiry that he had in the treasury between six and seven hundred(tdollars. At this meeting defendant was authorized to renew his bond as treasurer. A day or two after this meeting defendant by letter informed one of the members of the union that his books and vouchers would be found on his desk in the office of the union. The next seen of the defendant was at the time of his arrest in the latter part of July. The evidence further tended to prove that defendant did not account for the money in his possession, but that he converted it to his own use. When arrested defendant was told by the officers that this union accused him of taking about $700 of its funds, in reply to which he said, “I don’t care what they say I took; it was about $600.” When asked what he did with the money he replied that he “used it at various times for various things.” A number of vouchers were introduced by the State purporting to show that certain sums of money had been paid out by defendant. According to the serial number of such vouchers one, two or perhaps more were missing. The evidence further tended to prove that the account books of the union were not in existence, or that they could not be found at the time of the trial. There -was no evidence tending to show that the defendant had ever had an accounting with the union or that any demand had been made upon him for the return of the funds. Over the objections of defendant the State introduced in evidence a book kept by the various treasurers of the union, -which contained entries made by defendant during his term of office.

At the close of the ■ State’s evidence defendant asked an instruction in the nature of a demurrer, directing the jury to acquit defendant, which was by the court refused. Defendant then offered to prove by witness Dis that the Bill Posters’ and Billers’ Union, Local No. 5, was an illegal organization and one operating in restraint of trade, and had no legal right to enforce the collection of the alleged sum of money which it was alleged to have placed in the hands of the defendant. This evidence was by the court excluded. At the close of all the evidence defendant renewed his request for an instruction in the nature of a demurrer to the evidence, which was refused by the court.

The cause being submitted upon the evidence and instructions of the court, the jury returned a verdict finding defendant guilty as charged and assessed his punishment at imprisonment in the penitentiary for a term of two years. Defendant in due time and proper form filed his motion for a new trial, which was by the court overruled. Sentence and judgment were entered of record in conformity to the verdict and from this judgment defendant prosecutes this appeal.

OPINION.

I.

The first proposition with which we are confronted, ■as disclosed by the record, is the challenge by appellant to the sufficiency of the information upon which this judgment is predicated. This challenge is based upon two grounds:

1st. That the information failed to charge that the money was converted without the consent of the owners by the defendant to his own use with the intent to deprive the owners of the nse of the said money permanently.

2d. It is insisted that the information fails to properly charge the ownership of the money alleged to have been embezzled.

Upon the first proposition it is sufficient to say that the allegation insisted upon by the appellant, that is, that the money was converted without the consent of the owners, etc., is not essential to the validity of an information predicated upon section 1918, Revised Statutes 1899. Indictments substantially in the same form as the information in the case at bar, predicated upon the provisions of the' statute defining the offense of embezzlement by an officer, have been approved by this court. [State v. Mahan, 138 Mo. 112; Sherwood’s Commentaries' on the Criminal Law, 260.]

It is next insisted by learned counsel for appellant that the information is insufficient for the reason that it did not fully inform the defendant of the character of the offense with which he was charged, by failing to set out the names of the various parties constituting the association or partnership, and thus failed to inform the defendant who his accusers were.

The information in this cause charges the defendant, as treasurer of the Bill Posters’ and Billers’ Union, Local No. 5, of the city of St. Louis and State of Missouri, with embezzlement of funds belonging to such organization received by him as such treasurer. This information is predicated upon the provisions of section 1918, Revised Statutes 1899, which provides, among other things, that “if any officer or member of any benevolent, trade or religious organization, shall convert to his own use, in any manner whatever, or shall use by way of investment in any hind of property or merchandise, or shall make way with or secrete any portion of the public moneys, or any moneys that may have come to him or them by virtue of his or their office or official position, or by virtue of any trust reposed in him or them, . . . shall, upon conviction, be punished in» the manner prescribed for stealing property,” measured by the value of the property so taken or secreted. This section in express terms makes it embezzlement for any officer or member of any trade organization to convert to his own use in any manner whatever the moneys that may have come to him by virtue of his office or official position, or by virtue of any trust reposed in him or which may be in his possession, care or control by virtue of his office or trust.

It is manifest that the offense defined by this section is not restricted to embezzlements by officers or trustees of any incorporated benevolent or trade organization, but is so comprehensive as to embrace an embezzlement by an officer of any trade organization, whether incorporated or no.t. This identical proposition was in judgment before this court in State v. Knowles, 185 Mo. 141, where it received at the hands of this court a most thorough and careful consideration. Judge Gantt, in speaking for this court, pointed out the settled rules of the common law, that one partner could not be guilty of embezzling the partnership funds, because a man could not be guilty of stealing his own property, or property of which he was the joint owner, and a like ruling had obtained as to members of organizations having an interest in their funds, citing the authorities in support of such common-law rule that “if it appears that the accused has any interest in the property jointly with another he cannot be convicted of embezzlement in respect to such property.” It was then pointed out that the purpose of the statute now under consideration was to remedy this evil, and in discussing the statute it was said by this court in that case: “To remedy this evil was, we think, the purpose of the Legislature in making the statute broad enough to cover embezzlements by any officer or member of any benevolent organization. The language of the statute is comprehensive enough to cover embezzlements by any officer or member of any benevolent organization, and certainly it is not less reprehensible and criminal in an officer or trustee of an unincorporated benevolent organization to embezzle and convert its funds raised for a charitable and praiseworthy purpose and entrusted to him, than it is to steal and convert the funds of an incorporated society. The-statute has not restricted its condemnation to the latter-class and we have no disposition to do so, because we-think the evil is as great if not greater in the one than the other. It follows that the objection leveled at the-indictment because it does not charge the Miners’ Lodge No. 60 was an incorporated benevolent organization is not well taken. It is averred that it was-then and there a benevolent organization, and this is sufficient for the purpose of charging its own receiver or trustee with the corrupt conversion of its funds-entrusted to his keeping and care. The indictment follows the statute and sufficiently individuates the crime,, the relation the defendant bore to Miners’ Lodge No. 60, and the conversion of the moneys of the lodge received by him by virtue of his official relation to the lodge. The case of State v. Patterson, 159 Mo. 98; State v. Jones, 168 Mo. 398, and State v. Horned, 178 Mo. 59, in no manner conflict with the conclusion we have reached in this case. Those cases are based on violations of a different section (1912) of the Revised Statutes and properly declare the law on the facts upon which they are based.”

The information in the case at bar charges that the defendant was a member of the Bill Posters’ and Billers’ Union, Local No. 5 of the city of St. Louis and State of Missouri. It further charges that this union was a trade organization in the city of St. Louis aforesaid, and that the defendant was the treasurer of such trade organization and embezzled the funds, as charged, in the information. F'ollowing the case of State v. Knowles, supra, we are of the opinion that the charge in the information, which was in pursuance of the provisions of the statute, that the defendant as treasurer of the trade organization embezzled certain funds, was a sufficient compliance with the requirements of the law as to averments of the ownership of the property embezzled, and in contemplation of law the members of the trade organization were not partners, and it was not essential in framing this charge to treat them as such.

II.

An examination of the motion for new trial shows that there is no complaint directed toward the instructions given by the court in this cause, nor is there any error assigned that the court failed to fully instruct the jury upon all questions of law arising‘in the case which were necessary for the jury in reaching their verdict; therefore we take it that the instructions or the failure to give instructions is not before us for review.

III.

It is earnestly insisted by counsel for appellant that the Bill Posters’ and Billers’ Union, Local No. 5, of the city of St. Louis and. State of Missouri, was organized for an unlawful purpose and therefore a prosecution for embezzlement of its funds could not be maintained.

To this insistence we are unwilling to give our assent. It is but common knowledge that organizations of this character are in existence all over this State and that the objects and purposes of the organizations are to promote the welfare of the members of such organizations. It may also be added that the defendant in this cause is in no position to make the defense that this was an unlawful organization. He was a member of it and was the treasurer of the organization, received its funds and he should not be permitted 'to say now that it was an uulawful organization organized for unlawful purposes and for that* reason he was authorized, if he saw proper, to convert the funds of such organization to his own use. We are of the opinion that there is no merit in this contention.

IV.

This brings us to the consideration of the only remaining proposition disclosed by the record, that is, was the testimony sufficient to support the verdict returned by the jury?

We have indicated the nature, and character of the testimony in the statement of this cause and we see no escape from the conclusion that the testimony developed at the trial furnished ample support for the conclusions reached by the. jury. The testimony introduced by the State shows the existence of the trade organization and that the defendant was the acting treasurer of it; that he received funds as treasurer, belonging to such organization, there is no dispute. When this defendant was arrested he was told by the officer that this union accused him of taking about $700' of its funds. In replying to this he said: “I don’t care what they say I took; it was about $600.” He was then asked what he did with the money and he replied that he “used it at various times, for various things.” These admissions stand undenied and nncontradicted. The- defendant did not testify; hence we see no room for the contention that there was not sufficient evidence to show that the defendant converted this money to his own use. The witnesses testifying in this cause were before tbe court and jury. It was tbe exclusive province of tbe jury to weigh their testimony. There were opportunities in the trial court to judge of the credibility of the witnesses that are not afforded the appellate court. Upon the testimony as disclosed by the record the jury returned a verdict finding the defendant guilty. This verdict therefore'stands approved, not only by the jury, but as well by the judge of the court presiding at the trial.

It may not be out of place to say that while the instiuctions are not before us for review, yet in the investigation of this cause such instructions being embraced in the record, we have examined them and find that they fully and fairly present the law applicable to the facts developed at the trial.

Finding no reversible error, the judgment of the trial court should be affirmed, and it is so ordered.

Gantt and Burgess, JJ., concur.


author: GANTT, J. —

text:
    MARGUERITE V. TABOR v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.
    Division Two,
    March 17, 1908.
    1. NEGLIGENCE: Open Switch. After tbe conductor and engineer have received notice that a car is broken down on tbe main track at a named station, and are directed to use tbe passing track there,, it is negligence in tbe engineer to run tbe train into an open switch at tbe station at a speed of fifty or sixty miles an hour, and of the conductor to permit him to do so without signal to slow up.
    2. -: Fellow-Servants: Master Mechanic: Engineer. It was tbe master mechanic’s right and duty to ride on tbe engine to observe its working, and having been informed that tbe engine of tbe passenger train could not be properly fired and that tbe train for that reason lost time be rode on tbe engine to dis-210 Sup — 25 cover what the defect was. Before mounting it, he heard the conductor read to the engineer a message from the train-master that there was a broken-down car on the main track at a station ahead, and to take the passing track at that place. The engineer ran the train into the open switch at a speed of fifty or sixty miles an hour, it was derailed, and the master mechanic was killed, and his wife sues for damages. The plaintiffs evidence tended to prove that the master mechanic was the superior of the engineer as to any mechanical defect in engines, and of all repairs the'reof, and had a clear right to ride on the engine to discover its defects, but that he had no control over the movement of the engine or its speed, and that the engineer and conductor are subject to the orders of the train-dispatcher alone. Defendant’s evidence tended to prove that the master mechanicrwas the engineer’s superior officer in all respects, and that the latter was subject to his orders as to the movements of the train. Meld, that, from either point of view, the engineer and master mechanic were in no sense fellow-servants of the same grade engaged in a common service.
    3. -: -: -: In Operating Train. The master mechanic being engaged in the construction and repair department of the railroad company, and the engineer and conductor in the operating department — the moving of the train under the direction and control of the train-master through the train-dispatcher- — and the rules of the company -giving conductors “en-. tire charge of the trains to which they are assigned and all persons employed thereon”, the conductor was, under the statute (Sec. 2874', R. S. 1899), the company’s vice-principal, and in no -sense was the master mechanic a fellow-servant of either the engineer or conductor.
    Appeal from Jefferson Circuit Court.— Eon. Jos. J. Williams, Judge.

    Aeetrmed.

      Martin L. Clardy and James F. Green for appellant.
    (1) The master mechanic was a fellow-servant with the conductor and engineer in charge of the train, and hence no canse of action exists in behalf of plaintiff. R. S. 1899, sec. 2875; Root v. Railroad, 19'5 Mo. 368; Grattis v. Railroad, 153- Mo. 402; Schanb v. Railroad, 109* Mo. 74; "Wood on Railroads, sec. 388; Parker v. Railroad, 109 Mo. 362; McDermott v. Railroad, 30 Mo. 115; Rollback v. Railroad, 43 Mo. 187; Higgins v. Railroad, 104 Mo. 413; Yaltz v. Railroad, 85 111. 500; Kelley v. Railroad, 127 111. 637. (2) The right of action given by section 2873, Revised Statutes 1899' (Laws 1897, p. 96), is one in favor of the party injured only, and such cause of action'does not survive where death ensues.

      Byrns & Bean and H. B. Irwin for respondent.
    (1) Plaintiff was entitled to maintain this action and to recover for the negligent killing of her husband. R, S. 1899, secs. 2864, 2865, 2866, 2873 ; Renard v. Railroad, 164 Mo. 286; Powell v. Railroad, 162 Mo. 605; Philo v. Railroad, 33 Iowa 50; 12 Am. and Eng. Ekcy. Law (2 Ed.), 978. (2) Plaintiff’s husband and the engineer and conductor were not fellow-servants. R. S. 1899, secs. 2874 and 2875; Railroad v. Furry, 114 Fed. 898; Railroad v. Ross, 112 U. S. 377.
   GANTT, J. —

This is an action commenced in the circuit court of Jefferson county July 19, 1904, for five thousand dollars damages, on account of the alleged negligent killing of plaintiff’s husband by the defendant. As the recovery in the circuit court was on the first count, it will suffice to state that much of the petition.

It is alleged first that the defendant is and was at all times mentioned a railroad corporation organized under the laws of this State, and owned and operated a line of steam railroad in this State. “Plaintiff states that on the 30th day of April, 1904, she was the lawful wife of A. E. Tabor, and that at said time the said A. E. Tabor was employed by the defendant as master mechanic, and that as such master mechanic it was the duty of said A. E. Tabor to pass over defendant’s railroad and to, ride on its engines and trains. That on the day aforesaid said A. E. Tabor, acting in the line of his duties, was riding over defendant’s road on an engine which was in charge of the defendant’s servants and agents, and attached to one of defendant’s passenger trains, and that the agents and servants of (defendant in charge of the defendant’s said engine and train acting in the line of their duties negligently and carelessly ran said engine and train at a high rate of speed into an open switch on the line of defendant’s road near Wicks Station, whereby said engine .and train were wrecked and thrown from the track, and that said A. Ei. Tabor sustained injuries thereby from which he died on the day aforesaid, and without any negligence on his part contributing thereto. Plaintiff states that she is the widow of said A. E. Tabor, deceased, and her said husband was killed because of the negligence of the defendant’s agents and servants aforesaid. That plaintiff was dependent on her deceased husband for her support, and that she has suffered great pecuniary loss and has been otherwise greatly injured by the death of her said husband to her damage in the sum of five thousand dollars, for which she prays judgment with costs of suit.”

Defendant filed an answer which consists, first, of a general denial, except that the defendant was a railroad corporation as alleged; second, a plea of contributory negligence on the part of the deceased. The ' reply was a denial of the new matter alleged.

The case was tried at the January term, 1905, of the Jefferson County Circuit Court, and resulted in a verdict for the plaintiff for five thousand dollars. On the trial the following facts appeared in evidence:

The plaintiff is the widow of A. E. Tabor, and at the time of his death Mr. Tabor was the master mechanic of the defendant on the Missouri Division of the St. Louis, Iron Mountain and Southern Railway, with his headquarters at DeSoto, Missouri, and had been so employed for about eight months. On the morning of the 30th of April, 1904, A. E. Tabor got on the engine that was pulling train number 18 on defendant’s road at DeSoto, stating to his wife that something was the matter with the engine and he was going to ride on it. Mrs. Tabor also got on the same train in one of the passenger coaches. J. O. Austin was' the conductor in charge of said train number 18, which was on its way north that morning to St. Louis. He testified that his train left DeSoto about seven o’clock on the morning of April 30th; that John Bailey was the engineer in charge of the train. He received the following order at DeSoto:

“DeSoto, 4-30, 1904.
“Train 31,
Order No. 4.
‘ ‘ To all north-bound passenger trains: There is a car broken down on main track between passing track switches at Wicks. All trains will use Wicks passing-track for main line. Run carefully passing Meramec spur.
J. W. D.”

The conductor testified he delivered a copy of this order to the engineer and compared it with his clearance card, and the engineer read the order to him; that this all occurred while they were standing at the scale house at DeSoto and while the engine was standing at that point; that thirty or forty seconds after giving this order to the engineer, the train pulled out. Wicks passing track is about twenty-three miles north of DeSoto and the train was running between 50 and 60 miles an hour when it reached this passing track, and the engine, two coaches and three sleepers were derailed. The conductor testified that when near the switch, he got up to go to the platform to signal the engineer, when the train ran into the switch and was derailed; that the switch was open, that is, thrown for the side track or passing track, and that this was the track which they had the order to go through. The conductor testified that Mr. Tabor, the deceased, was standing by him at the time he read the order to the engineer. He further stated that the train had lost time between Piedmont and Bismarck, because there was something-the matter with the engine, it would not make steam. He testified further- that a person on the right side of the engine going north could see the south end of the Wicks switch for about three-fourths of a mile before reaching it; that the engineer sat on the right-hand side of the cab and the fireman on the left. The witness had no conversation with Mr. Tabor that morning. .The conductor also testified that the master mechanic had nothing to do with the giving of orders and directing the running of the train; that the- directions in regard to running the train were received from the train master, J. W. Daniels. That the master mechanic, Mr. Tabor, had nothing whatever to do with giving directions or giving the order in question; that the engineer received his orders from the same source that the conductor received his, and was not under the control of the master mechanic as to the matter of running trains. Witness did not know until he met Mr. Tabor that morning at DeSoto that he was going to get on the engine. Tabor asked witness what was the matter with Bailey, and what was the reason he was not making time, and why he asked for a helper over Hogan Mountain, and then said: I am going to ride that engine, and I am going to find out what is the trouble.” The master mechanic is the boss of the engineer as to the' machinery part of the engine. Witness further stated that it was broad-day light when his train left DeSoto for St. Louis that morning.

Charles A. Castile testified that he was section foreman in charge of the Wicks portion of the railroad, and was working- on the defective car on the main track north of the Wicks’ switch; that the s.witch at the time of the accident was in good condition and hadNbeen opened for the purpose of allowing trains to use the passing track instead of the main track; that the switch stand could he seen from the south about one-half mile; that witness got to the wreck about ten minutes after it occurred and found several cars down in the dump. In his opinion the wreck was caused by running too fast into the open switch.

Albert G-umpert testified that he was fireman that morning on train number 18, going north, having taken the train at Poplar Bluff to run that day to St. Louis.; that the engine was not steaming good and that some time was lost on fhe road between Poplar Bluff and DeSoto; that Tabor got on the engine at DeSoto, and took his seat on the fireman’s side, that is, the left side of the cab. He did not hear any thing said between Tabor and Bailey between DeSoto and-Riverside. That they passed a freight train at Riverside and Mr. Tabdr looked over to see who was running the engine on that train; after that he heard Mr. Tabor remark that the engine pounded pretty hard, but that if the wedges were set up and brasses filed, it would be all right.. This was said about six miles south óf the Wicks switch. That as the train passed Sulphur Springs, witness remarked to Tabor that he could not fire the engine properly and Tabor said: “When we get to St. Louis I will have them [the grates] replaced.” That when the engine struck the switch it was going about fifty miles an hour and witness was putting- in coal, had the shovel in his hand, Tabor looked at Bailey and then at him, and at that moment witness started to jump but went over with the engine. Bailey was running the engine at the time.

Charles Montgomery testified for the plaintiff that he was a traveling engineer for the defendant and had been in the railroad service about twenty-five years, and knew Mr. A. E. Tabor during the time he was master mechanic at DeSoto, about eight months. Mr. Tabor had full charge of the mechanical and car departments, that is, of all the machinery, consisting of locomotives and such as that, in the division to which he was assigned. His office was adjacent to the repair shops at DeSoto. The master mechanic is under the superintendent of motive power. He testified that when an engine goes on to the road, that is, when the train is made up and started out on the road, the conductor and the engineer get their directions in regard to the moving of their train from the train dispatcher. The master mechanic has no control whatever over the train dispatcher or the.train dispatcher over the master mechanic. The master mechanic is supposed to see that his engines are in good shape and that they are in working order and in order to do this he rides on the engine and train to watch its work. When an engine gets out of order, it is the duty of the engineer to report it defective to the roundhouse foreman at the terminal. The round-house foreman is under the master mechanic. Witness had seen Mr. Tabor ride over the road on engines sometimes about three times a week to see how they were operating; when he did so he had nothing to do with the management of the train, that was controlled by the conductor. In such a case the master mechanic had no control over the engineer so far as the movement of the train was concerned. The master mechanic has the right to go on an engine to see how it is working, whether there is anything wrong with it or not, but when he is on the engine, he had no control over the running of the train, that was governed by the orders given by the train dispatcher.

E. D. Mercer also testified that he was. a traveling engineer and had been in the railroad service for forty-two years, had been connected with the master mechanic’s department for thirty-six years. He corroborated Mr. Montgomery in saying that the master mechanic has nothing whatever to do with the running of the train, that is controlled by the superintendent and train master who give their orders to the conductor.

Rules number 408, 409 and 436 of the defendant company were read in evidence. These rules in substance place the engineer in all -matters pertaining to the movement of trains or the discipline of the service, under the authority of the superintendent, and division superintendent, and he is required to obey the orders of the train master. In all matters relating to mechanical questions, they are under the authority of the master mechanic.

At the close of the plaintiff’s evidence, the defendant requested the court to sustain a demurrer to the evidence, which the court refused to do. Thereupon the defendant called J. W. Hopkins, who testified that he was the chief dispatcher of the defendant at DeSoto, Missouri, and the territory under his jurisdiction reached from St. Louis to Piedmont, and from Bismarck to Belmont. He testified that when a master mechanic goes on an engine to investigate it, he has authority over the engineer and if he discovers that the speed is too great he has the right to tell the engineer about it, or if he was running at an excessive rate he had the right to say to the engineer, “Reduce your speed.” That it was the custom of Mr. Tabor, the master mechanic, to ride on the engine over the road at his pleasure, and this was known to the division superintendent. He testified further that the engineer controlled the speed of the train and that there was no speed limit to a passenger train, the engineer being the judge of the speed; that sixty miles an hour, if the track was in good condition, would not be considered an excessive rate of speed. He stated that the master mechanic’s department was entirely separate from the train-master’s department, and that when the work that the master mechanic had to do with the engine ended, the dispatcher’s department began. That the master mechanic had nothing to do with directing the movements of a train on the road, not even if he was on the train.

Ed. Metz testified that he was car-inspector for the defendant company and learned on the morning of April 30, 1904, that there was a crippled car on the main line near Wicks, and that a slow order had been issued in consequence. He heard that order read by conductor Austin to engineer Bailey, Mr. Tabor standing beside them at the time. There was. nothing to prevent Tabor hearing the order read. -

Plaintiff in rebuttal read rule 332 as follows: “332. Passenger conductors should never lose sight of the fact that their duties are of the most delicate and responsible character. That they have entire charge of the trains to which they may be assigned, and of all persons employed thereon, and will be held responsible, when on the road, for the proper care and comfort of the passengers, for the collection of tickets and fares, and for the safe and prompt movement of their trains; and from the time they go on duty until the train is set off the main track at a terminal station, unless regularly relieved, they will be responsible for the protection of their trains, and for the conduct of the trainmen. ’ ’

“Rule 334. They'must be familiar with the duties of the enginemen, firemen, baggagemen and brakemen, enforce the rules applicable to them upon their, trains, and report any insubordination, neglect of duty or misconduct. ’ ’

The defendant at the close of all of the evidence requested the court to instruct the jury that the plaintiff was not entitled to recover, which instruction the court refused and the defendant excepted. The court thereupon instructed the jury, at length.

I. It is not contended that the two employees, to-wit, the conductor and engineer, who were charged with the safety of the passengers and the other employees on the train of defendant, were observing due and proper care when they ran the .train at the rate of fifty or sixty miles an hour into the open switch at Wicks Station. Both the conductor and engineer were warned by the order of the train dispatcher at DeSoto that there was a crippled car on the main track at lYicks and that they must pass this point on a switch or passing track, and yet the whole evidence discloses that the train was moving at least fifty miles an hour when it struck the south point'of the switch. The conductor testified that his order required him to go slower at this place and he had omitted any signal to the engineer to slow up but was just starting to do so when the derailment of the train occurred, and the engineer had the same order, knew the conditions ahead of him, and it was broad-day light and the open switch in plain view, for from a half to three quarters of a mile, before he reached it, and yet he did not slacken his train, but ran it at a rate of fifty to sixty miles an hour into the open switch, in consequence of which the entire train was wrecked, and the master mechanic Tabor, who was in the engine cab to discover what the defects of the engine were, was killed. This appeal is bottomed upon the proposition that the master mechanic was a fellow-servant with the conductor and engineer whose negligence caused his death, and if so that the Act of 1897 gives no right of recovery to his widow.

It was abundantly shown that it was the right and duty of the master mechanic to ride on the engine to observe its mechanical working, and on this occasion he had been advised the engine was not working right before it reached DeSoto from the south, and he expressed his intention of going on this particular engine to discover what was the matter, and in so doing he was strictly within the line of his duty as master- mechanic in riding thereon from DeSoto to St. Louis. The fireman told him that he could not fire the engine properly because it had a bad set of grates, and Mr. Tabor replied he would have them replaced when they reached St. Louis, and also said, “If her wedges were set up, and her brasses filed, he thought she would be all right.” It was also established by the printed rules of the defendant, as well as the oral evidence of the conductor and the other engineers, that while the master mechanic Tabor was the superior of the engineer as to any mechanical defect or change or treatment of the engine, he had absolutely no authority over the engineer as to the movement of his train, but that when a train is started on the road, the engineer and conductor are subject to the orders of the train-master alone, and not to the master mechanic, even though he is on the engine with him. While the insistence here is that the deceased master mechanic was a fellow-servant of the engineer, the testimony offered by defendant tended to prove that he was the superior of the engineer, and that the latter was subject to his orders even as to the movement of the train, and the evidence for the plaintiff was to the effect that as to the movement of the train the master mechanic had no authority whatever, and was the superior of the engineer only in the sense that the engineer would be bound by the master mechanic’s judgment as to any defect in the machinery of the engine and what should be done to remove the same, and he was on the engine solely to observe its working and to discover, if he could, why it did not make steam properly and why the engineer could not make time. They were not in any sense, from either point of view, fellow-servants of the same grade engaged in a common service, the engineer being according to defendant’s contention an inferior in all respects, and according to plaintiff’s the master mechanic was a superior servant as to the mechanism of the engine, and its need of repairs if any, and as to the movement of the train with no function whatever to perform and no authority to exercise over the engineer.

If this were a case in which the engineer had been injured or lost his life by reason of the defendant’s negligence in not furnishing him a reasonably safe engine to run, and 'it had appeáred, as it does here, that the defendant had employed the master mechanic to see that the engine was a reasonably safe one when sent out on the road, no doubt can exist under the decisions of this court that the master mechanic would be held to be the vice-principal of the defendant, and not a fellow-servant. Judge Thompson, in his Commentaries on the Law of Negligence, vol. 4, sec. 4976, says: “Is the master machinist of a railway company a fellow-servant with a fireman or brakeman? The better opinion is, that he is not. If this is not so, the rule which charges the master with responsibility to the servant for defective machinery, falls wholly to the ground in the case of corporations; for, since a corporation can act only through its agents, if the agent or servant who has charge of the construction and repairs of its machinery is a fellow-servant with him who is employed in running it, it follows that corporations will be exempt, in all cases, from the obligation of furnishing their servants with safe machinery which attaches to other proprietors. Such a servant, then, is fairly deemed a vice-principal of the master, and his negligence is the master’s negligence to all intents and purposes, the same as though the master was present, performing Ms duties in person. Another way of stating what seems, to be the correct rule is, that the mechanics having charge of the construction and repairs of the master’s machinery are not fellow-servants engaged in the same common employment with the servants who are engaged in operating it.” [Tabler v. Railroad, 93 Mo. 79; Moore v. Railroad, 85 Mo. l. c. 596, 597; Lewis v. Railroad, 59 Mo. l. c. 506; Brothers v. Cartter, 52 Mo. 372; Ford v. Railroad, 110 Mass. 240; Cooper v. Railroad, 24 W. Va. 37; Shanny v. Androscoggin Mills, 66 Maine. 420; Railroad v. State, to use, 45 Md. 229; Mullan v. Steamship Co., 78 Pa. St. 25; Railroad v. Dunham, 49 Tex. 181; Brabbits v. Railroad, 38 Wis. 298 and 299.]

But in this case the disaster to the train in no manner resulted from any defect in the engine or any want of care on the part of the master mechanic, but was attributable altogether to the negligence of the ^conductor and engineer in failing to slow down as they approached the open switch. On this point the conductor testified as follows: “Q. It was your duty to signal the engineer? Ans. Yes, sir, I had started to walk to the end of the car. Q. You were bearing in mind your orders? Ans. Yes, sir. Q. . You had started to signal when the crash came? Ans. Yes., sir.” Rule 332 promulgated by defendant for the government of its employees reads: “Passenger conductors should never lose sight of the fact that their duties are of the most delicate and responsible character. That they have entire charge of the trains to which they may be assigned and of all persons employed thereon and will be held responsible, when on the road, for the proper care and comfort of the passengers, for the collection of tickets and fares, and for the safe and prompt move- . ment of their trains; and from the time they go- on duty until the train is set off the main track at a terminal station, unless regularly relieved, they will be held responsible for the protection of their trains, and for the conduct of the trainmen.” Judge Thompson, in his Commentaries on the Law of Negligence, vol. 4, sec. 5030, states the relation of the conductor to the master and the other trainmen in these words: “The conductor of a railway train is the master of the train, in the same sense in which the captain of a ship at sea is master of the ship. With respect to those measures which are necessary for the safety of the persons on board the train, he wields the whole power of the railway company, except in so far as those powers have been specially committed to the engineer or to other servants. The better view, therefore, ascribes to him the status and authority of a vice-principal of the railway company, so as to render it liable for his negligence resulting in injury to its subordinate servants upon the same train.” Section 2874, Revised Statutes 1899, in full force and effect when this action accrued, provides: “That ail persons engaged in the service of any such railroad corporation doing business in this State, who are entrusted by any such corporation with the authority of superintendence, control or command of other persons in the employ or service of such corporation, or with the authority to direct any other servant in the performance of any duty of such servant, or with the duty of inspection or other duty owing by the master to the servant, are vice-principals of such corporation, and are not fellow servants. with such employees.” When rule 332 of the defendant is read in the light of this section, it seem too clear for cavil or dispute that the conductor of train 18 was not a fellow-servant with the master mechanic but had been entrusted by the defendant with the control and entire charge of the train and of all persons employed thereon, and pro hac vice he was vice-principal over the master mechanic as well as all the trainmen. The evidence clearly discloses that the master mechanie had nothing to do with the movement of. the train and no right to interfere with the engineer as to its speed. Moreover, his duties did not bring him in contact with the engineer or conductor except casually when observing the mechanical working of the engine. Their duties were wholly dissimilar. The master mechanic was employed and engaged in the construction and repair department of the defendant company, whereas the conductor and engineer were engaged in the operating department, the moving of the trains under the direction and control of the train-dispatcher to whom they were required to look for their orders, and for their negligence in the running, conducting and managing said train the defendant was and is responsible to the widow of the deceased master mechanic Tabor under section 2864, Revised Statutes 1899.

We are aware that the decision of the Supreme Court of the United States in Railroad v. Ross, 112 U. S. 377, was modified by the subsequent ruling in Railroad v. Baugh, 149 U. S. 368, in which it was held that an engineer and fireman were fellow-servants when in charge of an engine running alone, although a rule of the company provided that, “Whenever a train or engine is run without a conductor, the engineman thereof will be regarded as conductor and will act accordingly. ’ ’ But Mr. Justice Brewer, after stating the real ground upon which the Ross case stood, said: “So, oftentimes there is in the affairs of such corporation what may be called a manufacturing or repair department, and another strictly operating department; these two departments are, in their relations to each other, as distinct and separate as though the work of each was carried on by a separate corporation.” That language is appropriate to the conditions before us. Here the whole testimony fairly construed demonstrates that Mr. Tabor, as master mechanic, was the chief of the repair department of defendant at DeSoto, with no connection with the operating department save to provide it proper engines and cars for the movement of its trains, and on the other hand, the train dispatcher was the head of the department for the movement of trains and the conductors and engineers were subject to his orders only, and he stood as vice-principal to them. So that while the Baugh case does restrict the general language of the Ross case', it recognizes that the members of absolutely distinct branches of the service can not with reason or justice be said' to be fellow-servants in a common employment. In Railroad v. Herbert, 116 U. S. 653, Mr. Justice Field, speaking of the distinction between the providing of safe machinery, and the business of handling and moving it, said: “The two kinds of business are as distinct as the making and repairing of a carriage is from the running of it.” In Ford v. Railroad, 110 Mass. 240, it was said: “The agents who are charged with the duty of supplying safe machinery' are not, in the true sense of the rule relied on, to be regarded as fellow-servants of those who are engaged in operating it. They are charged with a master’s duty to his servant. They are employed in distinct and separate departments of service and there is no difficulty in distinguishing them, even when the same person renders service by turns in each as the convenience of the employer may require.”

Accordingly, in our opinion the circuit court committed no error in overruling the demurrer to the evidence, either at the dose of the plaintiff’s case or at the end of all the testimony, and in refusing to hold that the deceased, Tabor, was a fellow-servant with the conductor or engineer, and it follows that the contention that the widow’s right to sue depended upon the Act of 1897, giving a right of action to a fellow-servant only,and not to his widow, is not in the case.

The judgment of the circuit court is affirmed.

All concur.