author: BOND, J. WOODSON, C. J.

text:
    THE STATE ex rel. EVA A. IVIE et al. v. JOEL EWING, Administrator De Bonis Non of Estate of HORACE G. PITKIN, et al., Appellants.
    In Banc,
    March 3, 1915.
    1. ADMINISTRATION: Order of Distribution: Res Adjudicata. Where the judgment of the circuit court, certified to the probate court and made a record in the latter court, even though certified at the instance of the distributees, provided that they should have the right to take certain bank stock in the hands of the administrator, or its value at that time as fixed by the judgment, they had the right, both by the terms of the judgment and the statute, to choose whether they would take the specific personal property or its value in money, and the administrator had no right to compel them to accept a settlement on a money basis, which omitted the dividend the stock had earned; and in a suit on his bond, after he has appropriated the stock and dividends, and paid nothing under the order of distribution, a judgment charging him and his sureties with the market value of the bank stock, and the dividends, which he has converted to. his own use, is not erroneous.
    2. -: -: Interest. Where the administrator has failed to distribute property of the estate as required by the law, or as required by an order of distribution, or has converted it to his own use, he is guilty of maladministration, and is properly chargeable with interest.
    Appeal from Scbuyler Circuit Court. — Hon. Nat. M. Shelton, Judge.
    Affirmed.

      Fogle & Fogle and Higbee é Mills for appellants; Franklin Miller of counsel.
    (1) Tbe court erred in charging Ewing with tbe value of tbe 24 shares of bank stock at tbe time of tbe trial in November, 1911, value $4100 plus $1844 dividends, in all $5944, for the twenty-four shares of stock. According to the judgment of January 11, 1904, the court found the balance due from the administrator to be $9160.96; this included the twenty-four shares of stock at par. Plaintiffs had the option to take the shares if they so desired. The court, at the same term modified this judgment by allowing the administrator credit for the $2500 and interest paid the Farmers Exchange Bank, for overcharge by the deceased on real estate sold the bank. The plaintiffs appealed solely from this modification of the judgment. The reversal, by the Court of Appeals, of this modification left the original judgment of January 11, 1904, in frill force. By the motion filed by plaintiffs on May 4, 1905, for an order on the administrator to distribute the $5347.60, plaintiffs exercised their option, and elected to take this sum in cash, and not in bank stock. This election became res adjudicata when the court sustained the motion and ordered the administrator to distribute $5000 to the plaintiffs. This order expressly required the administrator to distribute cash, not shares of stock. Plaintiffs should not be allowed to play fast and loose in this manner. Tower v. Compton Co., 192 Mo. 394; Light Co. v. Mach. Co., 170 Mo. App. 231. The premium on the bank stock at $160 per share, would be $1440. The court inadvertently charged Ewing with $1700 premium. This was $260 in excess of the premium at that valuation. (2) The court erred in charging the administrator with interest. He is not to be charged with interest as a matter of course. The respondents appealed from the final settlement approved by the probate court. They appealed from the judgment of the circuit coilrt on that appeal, finding there was due from the administrator $5347.60. They have been contestants from first to last. The administrator has acted in good faith, has not used the money for his own private purposes, has never been in default, nor refused to pay the sums ordered to be distributed; on the other hand, has repeatedly offered to pay them. Sec. 231, R. S. 1909; Madden Heirs v. Madden, 27 Mo. 544; In re Peters, 128 Mo. App. 671; Pound v. Gassity, 166 Mo. 419. The good faith of the administrator is the test. (3) The action brought by the present plaintiffs as heirs and distributees of the estate of Horace Gr. Pitkin, deceased, against Joel Ewing, administrator de bonis non, et al., in the circuit court of Scotland county, on January 10, 1907, and which was pending there until May, 1910, abated this action, during its pendency. Pocoke v. Peterson, 165 S. W. 1020; Warder v. Henry, 117 Mo. 541. It did not however, purge the litigation of its vexatious nature. (4) There were equities to be adjusted between the plaintiffs as shown by the order of distribution. The probate court has sole jurisdiction in such cases; hence this action could not be maintained. In re Estate of Elliott, 98 Mo. 379; Pound v. Oassity, 166 Mo. 426.

      E. B. Bartlett and P. F. Greenwood for respondents.
    (1) The trial court properly charged the defendants with $13,746.74 including the value of and dividends on bank stock. Such charge was not in excess of, but was in fact, some $2000 less than should have been charged. The liability of the bond is identical with the liability of the administrator on final settlement which had been previously adjudged as to amount, character, rate of interest and conditions. Secs. 231, 287, R. S. 1909. (2) The court properly charged the defendants with the present value of the twenty-four shares of bank stock as $4100, and with the $1844 of dividends collected by the administrator thereon. Such bank stock is admittedly the property of the estate, was so adjudged in the final settlement case, and ordered distributed together with the dividends accrued and accruing thereon. The amount and receipt of the dividends was admitted in evidence by defendants, and the value of stock proven, and uncontroverted by defendants. The administrators’ failure and refusal to distribute such stock and dividends in kind constituted a conversion on his part and a liability for the value thereof at the date of trial. No right or requirement of an election by the heirs to take bank stock in kind or the inventoried value in lieu thereof, could or did exist; and there was no authority in the trial court to require such an election. Had the court so decreed, its order would be mere verbiage and void. R. S. 1909, secs. 241, 247, 248. (3) The defendants were chargeable and properly charged with the $3526.10 of interest on the amount of money adjudged due from the administrator on final settlement. The amount is not excessive, but much less than the amount properly chargeable. While an administrator, pending the administration, or pending a proper litigation, is not chargeable with interest, as a matter of course, he is chargeable with interest on the balance adjudged due from him on final settlement, and which he has been ordered to pay from the date of such order, and that is the charge here made. Sec. 231, R. S. 1909; Estate of Camp, 6 Mo. App. 563; Julian v. Wright-man, 73 Mo. 568; Madden v. Madden, 27 Mo. 544; Henry v. State, 9 Mo. 778; Peters v. Berkemeier, 128 Mo. App. 666.
    STATEMENT.
    This is a suit on the bond of an administrator de bonis non of the estate of H. Gr. Pitkin, wherein plaintiffs, as the distributees of the decedent, recovered judgment for $13,746.74. On the trial it was shown that H. Gr. Pitkin died July 3, 1895, leaving a widow and eight children, all of whom, or their representatives, are the relators in this suit on the bond of Joel Ewing, who was appointed administrator de bonis non, on June 4, 1896. This action was begun in 1907 in Scotland county, and taken by change of venue to Schuyler county, tried there, and judgment rendered on the 15th of November, 1911. The case was tried without the aid of a jury and the court made the following findings and rendered judgment accordingly:
    Charged against said administrator hy the Kansas City
    Court of Appeals ..............................$ 2500.00
    Interest on same from July 19, 1896, amounting to____ 2145.73
    Twenty-four shares of stock in the Farmers Exchange Bank of the par value of........................ 2400.00
    Premium on same, which the administrator has converted to his own use........................... 1700.00
    Dividends on same ................................ 1844.00
    Amount adjudged January 11, 1903.................. 2947.43
    Interest on same amounting to...................... 1380.37
    Total ......................................$14917.53
    Credit as claimed by administrator.................. 1170.79
    Balance due these plaintiffs..........................$13746.74
    On the trial it appeared, as stated in plaintiffs’ petition, that a judgment was rendered by the circuit court of Schuyler county, in the matter of the objection of the heirs and distributees of H. G-. Pitkin to the final settlement of defendant Ewing, as administrator, on the 11th day of January, 1904, wherein said administrator was adjudged to be indebted to the estate in the sum of $9160.96. Among the items upon which that judgment was founded were twenty-four shares of bank stock. It was further provided in said judgment that in the distribution of the estate the heirs and distributees, if they so desired, should receive the bank stock in kind, together with all dividends collected thereon by the administrator up to the time of distribution. At the same term of the circuit court of Schuyler county (to which the matter had been taken on change of venue), an order was made modifying the aforesaid judgment by eliding therefrom an item of $2500, and also an item of interest on the balance shown to be in the hands of the administrator on a previous settlement. According to such modification, the remainder of the judgment would have been $5347.43. From the action of the court in so modifying its judgment, the heirs appealed to the Kansas City Court of Appeals. [Ivie v. Ewing, 120 Mo. App. 124.] That court reversed the action of the circuit court and remanded the cause with directions to reinstate the two items complained of. The $2500 item was an amount which the administrator had paid to a bank, upon some alleged equity against the deceased. After the ruling of the Kansas City Court of Appeals, the bank returned that sum to the administrator. Pending said appeal to the Kansas City Court of Appeals, the circuit court made an order that $5000 of the amount of its judgment should be certified to the probate court for distribution. The testimony was conflicting whether this order was procured by the administrator or upon a motion on behalf of the distributees. By misprision the clerk of the circuit court made a transcript of this order for $5347.43 and furnished certified copies of it to some of the attorneys. The record seems to show that it was sent to the probate court of Scotland county. One of the incorrect copies of the order seems to have been found among the papers of the probate court.. The defendant administrator has never paid any part of the-amount adjudged against him on Kis final settlement to the plaintiffs. He tendered certain payments to them in money which they declined, because they wanted a distribution of the bank stock in kind, and also an accounting on his part for all the dividends collected thereon. In the judgment rendered on the-trial of this case, the administrator was charged with the market value of the bank stock and its actual book value, and with the dividends collected thereon by him.
    After the overruling of their motion for a new-trial, the defendants duly appealed to this court.
   OPINION.

BOND, J.

(After stating the facts as above.)—

I.

The appellants complain of the findings by the conrt that the administration was indebted for the market value of twenty-four shares of bank stock at the time of the judgment. There is no merit in this contention. The additional abstract of respondents discloses that their petition was amended on the trial by interlineation, so as to charge that the twenty-four shares of bank stock in the hands of the administrator had a market value of $181 per share. The evidence of this fact was not attempted to be controverted. The only inquiry therefore is whether the order of the circuit court, pending the appeal to'the Kansas City Court of Appeals, for the distribution of the portion of the judgment which was not appealed from, was such an election by the plaintiffs as to debar them from demanding in the present suit, the delivery of the bank stock in kind and an accounting for the dividends thereon, which the administrator admitted on the trial he had collected. There was no election by the plaintiffs on this, state of facts, even if it be conceded (which is denied by their attorney) that the motion for the order of distribution was made on their behalf. It stands confessed that the defendant has not paid a dollar under that order, and the very judgment, a part of which was so certified to the probate court, provided that the plaintiffs should have the right to take the stock then in the hands of the ■ administrator, or its value at that time, as fixed in that judgment. Hence, when the order in question became a- record in the probate court, the plaintiffs as distributees under the terms of the judgment as well as the express provisions of the statutes, would have been entitled to choose whether they would take the specific personal property in the hands of the administrator, or its proceeds. [R. S. 1909, secs. 247, 248, 249.] The record shows that the defendant administrator has never tendered them the bank stock in specie, but has appropriated it to himself, and that they have refused his proffers of a partial distribution for that reason. The case cited by appellant, Tower v. Compton Hill Improvement Co., 192 Mo. 379, has not the remotest analogy to the facts in this case. The facts there arose out of the sale of land upon restrictions in the deed as to the cost and kind of improvements to be erected. In consideration of which, the grantor agreed not to subdivide his adjoining property into smaller quantities than 100 feet. Two actions were brought, one by the grantee for breach of that covenant on the part of the grantor, who defended that plaintiff had been guilty of a prior breach of the building restrictions. Plaintiff was cast in the suit whereupon defendant brought another action for a forfeiture and was held to be precluded by the alternative defense which he had made to the former suit.

In the case at bar there was nothing in the certification to the probate court of Scotland county which implied a refusal on the part of the plaintiffs to receive from the administrator the shares of bank stock to which they were entitled. They were still entitled to demand of him that specific property which he should have delivered to them unless they refused to take it. Instead of so doing, he sought to make them settle on a moneyed basis. This they declined to do.

II.

Appellants finally complain that interest was charged against the administrator on the amount s^owl1 tile judgment to have been due on a previous settlement and on dividends received by him, and on the $2500 repaid to him after the decision, of the Kansas City Court of Appeals. There was no error in such charge. The evidence abundantly shows that he had either converted this property to his own use, as he did the bank stock, or failed to distribute it as required by law, and hence was guilty of maladministration and properly chargeable with interest. [R. S. 1909, sec. 231; Julian v. Wrightsman, 73 Mo. 569; In re Peters v. Berkemeier, 128 Mo. App. 666; Madden v. Madden, 27 Mo. 544.] The undisputed facts show that this administration has lingered nearly eighteen years, with practically no debts against the decedent. The judgment rendered below is in all respects correct and based upon a very conservative estimate of the 'liabilities of the administrator, and is affirmed.

PER CURIAM. — The foregoing opinion of Bond, J., in Division No. 1 is adopted as the opinion of the Court In Banc.

Graves, Bond, Walker, Faris and Blair, JJ., concur; Brown, J., concurs in result; Wood-son, C. J., expresses his views in a separate opinion.

WOODSON, C. J.

In my opinion respondents are allowed too much interest.


source: Caselaw Access Project

author: PARIS, P. J.

license: Public Domain

text:
    THE STATE v. PEARL BAKER, Appellant.
    Division Two.
    March 30, 1915.
    1. FORMER ACQUITTAL: Motion to Quash Information: Replication. A plea of autrefois acquit cannot be raised by an ordinary motion to quash the information; the proper procedure, if defendant wishes to present the issue that he has ibeen previously acquitted of the identical offense, is to do so by a special plea in bar. Primarily a motion to quash is directed to matters of form; to raise such issues as require for theix; proof or illumination evidence aluincte, pleas in bar, or'-pleas in abatement, or special pleas'in bar, are used. And while it is the practice for the State to file a replication to a special plea of autrefois acquit, defendant cannot complain that no replication to his motion to quash was filed, because that issue cannot be raised by such motion.
    2. -: Abandoned Information. Where the prosecuting attorney filed a duplicitous information, in one count of which he charged defendant with stealing turkeys from one woman and in the other with stealing goslings from another woman (the prosecutrix), and before any plea or trial thereon was had, filed two separate informations, in one of which defendant was charged with stealing the turkeys and in the other with stealing the goslings, and defendant was tried on the information charging him with stealing the turkeys and acquitted, but was never tried upon the information having two counts, nor upon the separate information charging him with stealing the goslings, he-is not, upon the facts, entitled to his discharge on the ground of former acquittal, on his trial upon another information charging him with stealing the identical goslings.
    3. PUNISHMENT: Severity.' Passion or prejudice on the part of the jury is not-inferable from the severity of the punishment, if it falls substantially short of the maximum prescribed by the statute.
    4. LARCENY: Goslings: Identity. Where no other necessary matter of proof is called in question except the identity of the four Emden goslings found at defendant’s house with those stolen from the prosecutrix’s coop, and they were positively identified a week later by prosecutrix as her own, and defendant and his wife testified they were raised by defendant’s wife and belonged to her, the question of identity, and consequently of larceny, is properly for the jury only.
    5. MISCONDUCT OF COUNSEL: Improper Evidence: No Objection or Exception. The offering of testimony utterly inadmissible, and the filling of the record with things which utterly disregard defendant’s rights, done by hired counsel for the State in their zeal to richly earn their fees, if not objected or excepted to, are not saved for review on appeal.
    6. -: Improper Argument. Argument to the jury of hired counsel, reprehensible in the extreme, if not objected to by defendant, and if the court did not rule, nor was asked to rule, and if no objection was made or exception saved to his lack of action in failing to rule, and all defendant did was simply to except to the remarks, is not saved for review on appeal.
    7. INSTRUCTION: Defining Feloniously. Where the statute 'which defines the offense does not use the word “feloniously,” an instruction cannot be held to be erroneous for the simple reason that it does not contain the word or hy any circumlocution define it.
    •8. -: Possession Authorizing Presumption of Guilt: Exclusive. A possession authorizing the jury to presume that defendant stole the stolen goslings is not required to be exclusive, but if the goslings are shown to have been stolen and were soon afterwards found in the joint possession of defendant and his wife in their poultry yard, there is such possession as authorizes an instruction authorizing the presumption that defendant stole the goslings. [Following State v. Phelps, 91 Mo. 478.]
    9. -: Search Warrant: Retention of Property by Sheriff. An instruction telling the 'jury that when a search warrant is served by the sheriff, the State has the right to cause the sheriff to retain the property found and alleged to have been stolen, for use as evidence, should be refused, since he has no right in law to retain it for that purpose, and where it is not offered in evidence the instruction is out of harmony with the facts; and there is nothing in the subject-matter of such an instruction, of a legal sort, which brings it within the category of instructions which the court is compelled to give of his own motion.
    10. -: Instruction: Irrelevant Matter. An instruction that is a bald comment on an immaterial and irrelevant matter, should be refused; for instance, an instruction which tells the jury that when defendant’s wife testified in chief that she was at the time of the alleged larceny in a distant city, the State had the right to cross-examine her as to why she went there and what she was doing there. If the State’s counsel attributed to her conduct not justified by the evidence, a prompt oral objection would have saved the point.
    •11. UNFAIR TRIAL: Reversal: Appellate Practice. Although upon the whole case defendant did not get a fair trial, yet if those things which would have been error if properly preserved for review, were not so preserved, and there is no error in those matters properly preserved, the judgment must be affirmed.
    Appeal from. Clark Circuit Court. — Hon. N. M. Pettingill, Judge.
    Affirmed.

      John A. Whiteside, Oliver G. Clay and A. F. Haney for appellant.
    (1) The trial court erred in overruling the motion filed by defendant to quash the ’ information and discharge defendant. State v. Wear, 145 Mo. 162; Ex parte Jilz, 64 Mo. 205. (2) The trial court erred in refusing to give the instruction asked by defendant at the close of the evidence directing the jury to find the defendant not guilty. There is no substantial evidence to support the verdict. The evidence by which defendant’s guilt is sought to be established is wholly circumstantial. When a conviction for felony rests; altogether upon circumstantial evidence, the circumstances proved must be inconsistent with the hypothesis that the defendant is innocent and with every other rational hypothesis except that of guilt. State v. Morney, 196 Mo. 49. Suspicion, or even strong probabilities of guilt, will not supply the place of evidence, in establishing guilt. State v. Francis, 199 Mo. 692; State v. Young, 237 Mo. 170. Unless there is substantial evidence of guilt, the court should instruct the jury to return a verdict of not guilty. State v. Young, 237 Mo. 170. Where there is no substantial evidence of guilt, the judgment should be reversed and the defendant discharged. State v. Morney, 196 Mo. 51. (3) The possession by defendant’s wife of the alleged' stolen goslings, on defendant’s premises, will not raise, any presumption of guilt against defendant. State v. Drew, 179 Mo. 322; State v. Castor, 93 Mo. 250; State v. Warford, 106 Mo. 63. To raise the presumption of guilt against the defendant arising from the possession of recently stolen property, the stolen property must be found in his actual and exclusive possession. State v. Hammons, 226 Mo. 604; State v. Baker, 144 Mo. 329; State v. Belcher, 136 Mo. 137; State v. Drew, 179 Mo. 322; State v. Castor, 93 Mo. 250. (4) The court erred in giving instruction No. 4 on the part of the State. It improperly applies to defendant the presumption of guilt arising from possession of recently stolen property. State v. Warford, 106 Mo.. 61-64. It erroneously excludes from the consideration of the jury the defense of alibi. State v. Edwards,. 109 Mo. 321; State v. North, 95 Mo. 615; State v. Sidney, 74 Mo. 390. This last error is not cured by the giving of defendant’s general instruction on alibi. That would simply present a case of conflicting instructions. State v. Wright, 199 Mo. 166. (5) The court should have given instruction B asked by defendant at the close of the argument, for the purpose of curing the effect of certain improper remarks made by the State’s counsel. (6) The verdict is the result of the passion and prejudice of the jury. This is shown by the disparity between the punishment of three years ’ imprisonment in the penitentiary assessed and the petty character and extent of the offense charged against defendant; and by the absence of aggravating circumstances. This is also shown from the weak and unsubstantial character of the evidence against defendant. (7) The improper remarks indulged in by counsel for the State are such as to arouse the prejudices of the jury, and being suffered to go unrebuked by the court, should be considered along with the disparity between the penalty assessed and the petty character of the offense in disclosing the fact that the verdict is the result of passion and prejudice. State v. Rose, 178 Mo. 33; State v. Kyle, 259 Mo. 401.

      John T. Barker, Attorney-General, and Lee B. Eiving, Assistant Attorney-General, for the State.
    (1)- The court properly held against appellant’s plea in bar, erroneously termed motion to quash information. The plea was former acquittal. There was absolutely no proof that appellant formerly had been placed upon trial for the offense in the instant case, and had been acquitted of the charge. State v. Oakes, 202 Mo. 86; State v. Laughlin, 180 Mo. 342; State v. Andrews, 27 Mo. 267; State v. Surall, 31 Mo. 197; State v. Hussey, 145 Mo. App. 671; State v. Polk, 144 Mo. App. 326; State v. Heath, 8 Mo. App. 99. The record entries offered- in evidence in support of the plea in har, do not show that defendant ever before had been put upon trial on the charge in the instant case. Therefore, the trial court cannot be convicted of error in finding against the plea in bar herein. (2) The court properly refused appellant’s instruction, in the nature of a demurrer to the evidence, at the close of all the testimony. (3) The-bill of exceptions shows that appellant objected to certain remarks of State’s counsel in their argument to the jury, but it does not show the ruling of the court thereon, or that any ruling was made, or. that any exception was saved to any ruling or to the failure of the court to make a ruling. Therefore, there is nothing in this matter that this court will review. State v. Williams, 186 Mo. 138; State v. Walker, 194 Mo. 264; State v. Whitsett, 232 Mo. 529; State v. Phillips, 233 Mo. 306; State v. Sauva, 234 Mo. 571. (a) The court did not err in refusing appellant’s instruction “A” relative to counsel’s improper argument at the close of the argument. There had been no exception saved to the ruling of the court, or his failure- to rule, when objection was made to counsel’s argument. Besides, this instruction does not correctly state the law (See R. S. 1909, sec. 5231) and is not based on any evidence in the case, (b) Appellant’s instruction “B,” offered at the close of the argument, was properly refused for the reason set forth above. (4) Appellant’s numerous objections as to the sufficiency of the evidence are without foundation. The evidence on the part of the State showed that the goslings in question were stolen on the night of June 16, 1912, and on June 21st were found in the possession of appellant and his wife. Appellant’s evidence that-the goslings were his wife’s and that she had raised them, and the prosecuting witness was mistaken in her identification of them, was strongly contradicted by the State. The possession of stolen property was not satisfactorily accounted for by appellant. The evidence of- defendant’s guilt was clear and fully warranted the verdict of guilty. • State v. Estis, 209 Mo. 288; State v. McGhee, 212 Mo. 95; State v. Venton, 220 Mo. 90; State v. Court, 225 Mo. 609. There was evidence of the theft. Its weight and the credibility of the witnesses • was for the jury. State v. McDowell, 214 Mo. 343; State v. Sassaman, 214 Mo. 738; State v. Shelton, 223 Mo. 141; State v. Hooley, 233 Mo. 295.
   PARIS, P. J.

Defendant, tried in the circuit court of Clark county upon an information charging him with grand larceny, for that he had stolen certain domestic fowls, viz., four goslings, was found guilty and his punishment assessed at imprisonment in the penitentiary for a term of three years. Prom this conviction, after the usual motions for a new trial and in arrest, he has appealed. ’

The facts disclosed by the evidence are substantially as follows:

Both defendant and one Mrs. Samuel Denny resided upon farms in Clark county, distant some several miles from each other. Mrs. Denny-was the owner of six goslings of the White Emden breed, and which were some eight weeks old. These goslings, at the time the four in question are alleged to have been stolen, were kept by Mrs. Denny in a goods box which she had converted into a coop. On the night of June 16, 1912, four of these goslings disappeared from this coop, into which they had been driven about 7:30 o’clock on the evening of the preceding night. The coop was found open and the two remaining goslings had escaped therefrom; mud was found upon the woven wire fence near the coop, and the tracks of a man were found along the ditch at the side of the roadway near this point.

Certain parties, apparently active and zealous members of a voluntary association known as the “Anti-Horse Thief Association,” watched the premises of defendant from some little distance with a field glass. These spying persons testified that they saw the goslings in the yard of defendant and saw him assist his wife in feeding and caring for them and in driving them to roost in the evenings. Prom information thus obtained and from the fact that the defendant seems to have been suspected of this theft from the beginning, a search warrant was procured some five days after the alleged theft, and the sheriff, being armed therewith and accompanied by Mrs. Denny, Mr. Denny and divers others of the vicinage, forming altogether quite a large aggregation, went to the premises of defendant and there found some sixteen goslings, among which were the four which are alleged to have been stolen from Mrs. Denny. These four g*oslings, from their general appearance, from the color of their legs and bills, which was said by the expert witnesses to be peculiar to this breed of geese, and from their gentleness and from the further fact that they came to her upon a peculiar call, Mrs. Denny positively identified as hers. She says that upon her claiming them defendant made denial of her ownership of them and claimed that his wife owned them. Upon Mrs. Denny’s contending that they were hers, he told her to “take them if they were hers,” but that he “would show her whose property they were.” The sheriff says that he told defendant he would have to take them as sheriff and that he was then told by defendant that he (the sheriff) could take them; that he (defendant) “would not go to law about it.”

Upon getting possession of the four goslings in question Mrs. Denny took them with her and turned them loose with the two others which she had. She testified that they seemed to know one another; that they “chattered together” and apparently knew the premises. In short, there was positive identification of these goslings by Mrs. Denny.

Other testimony in the case showed the presence of defendant and his wife in a buggy driving in the' direction of the Denny farm and about two miles distant therefrom late in the evening preceding the night in which the goslings were evidently taken.

The defense is one of identity, that is, that the goslings alleged to have been stolen were, on the contrary, hatched and raised by defendant’s wife. Many witnesses were called to develop and to combat this theory of defendant, and a sharp issue was raised creating much doubt as to where upon this question the truth lies.

Both defendant and his wife testified in his behalf. There was much proof as to the bad reputation of defendant for truth and veracity, and of the wife of defendant for truth and veracity and for chastity.

Defendant filed a motion which he calls, and which calls itself, a motion to quash the information, upon the ground that defendant had been tried theretofore and acquitted upon the identical charge in the instant case. It is difficult to ascertain the facts bearing upon this alleged acquittal. These facts rest, for the most part upon oral testimony and not upon the record. No •objection, however, was made by the State to the competency of this evidence. As nearly as we can ascertain from the unfortunate condition of the record, the prosecuting attorney seems at first to have filed an information in two counts against defendant. In one ■count of this information he was charged with having stolen certain turkeys which belonged to one Weber, and in the other count thereof with having stolen “the identical goslings belonging to Mrs. Denny, for which he is being here prosecuted. After filing the ■said information in two counts, which was of course duplicitous, but before any plea was had thereon or before the defendant was ever tried thereon two separate informations were filed against defendant, in ■one of which he was charged with the larceny of the turkeys of said Weber and in' the other of which he was charged with the larceny of the goslings of Mrs. Denny. Defendant seems to have been tried upon the said separate information charging him with the larceny of the Weber turkeys and acquitted thereon; but he was never tried upon the information having two. counts, nor was he ever tided upon the separate information charging him with the theft of Mrs. Denny’s, gosling’s until the trial in the instant case, in which Same case and trial he now makes the contention of autrefois acquit. Upon a full hearing, and after admitting all of the testimony of whatever kind offered by defendant, the court overruled defendant’s motion to quash, and defendant excepted.

Upon the trial the court gave seven instructions for the State and fourteen for the defendant, making twenty-one in all. Defendant offered two additional instructions, which the court refused. Since defendant strenuously contends that these refused instructions were correct and that their refusal constitutes error, we set them out below. They are as follows:

“A. The court instructs the jury that when a search warrant is executed, if the property is found, the sheriff may or may not arrest the defendant; and if the property is taken and the defendant is arrested for the larceny, either at the time or after the property is taken, the State may have the sheriff retain the property until after the final trial of the defendant, under the said charge of larceny, in order that the-State may use same as evidence.

“B. The court instructs'the jury that when Mrs. Baker testified in chief that she was in Kansas City, the State had a right to cross-examine her as to why she went there and what she was doing there.”

Such other facts as may become necessary in order to make clear the points we find it necessary to. discuss, will be set out in the opinion.

OPINION.

An even dozen alleged errors are urged upon us by defendant’s learned counsel. These we condense into five, so that we may not too seriously offend or add further cause for the expressed antagonism of the bar against long opinions (in all cases except those in which they are of counsel).

I. It is first contended that the court erred in overruling defendant’s motion to quash the information. The grounds of this motion upon which quashal was sought and which we briefly restate, were that defendant had been at one time charged in the second count of a certain information with stealing the identical goslings of Mrs. Denny, which information also charged him (in the first count thereof) with stealing certain turkeys of one Weber; that the State elected to prosecute him upon the count charging the larceny of said- turkeys, and that upon trial therefor he was acquitted. This allegation is not precisely in consonance with the facts as we have already shown them in the statement.

Imprimis, we may say that a motion to quash, as was the nature of the attack here, was not a proper plea. A motion to quash is directed ordinarily to matters of form, and a demurrer to matters of insufficiency of substance, or allegation appearing upon the face of the indictment or information; to such as require for their proof or illumination evidence aVkmde pleas in bar, or in abatement, or special pleas in bar are used. There are exceptions, we concede to these general rules (State v. Glasscock, 232 Mo. 278; State v. Faulkner, 185 Mo. 673); as for example, a motion to quash has been used to bring up the question of whether an indictment was found without the taking of testimony as a basis for it by the grand jury which preferred it. [State v. Cole, 145 Mo. 672.] Though this after all attacked the indictment for lack of statutory formality, which appeared, however, dehors the indictment itself. But be this as may be, no case bas been found which allowed a plea of autrefois acquit to be raised by an ordinary motion to quash.

Here defendant ought to have interposed a special plea in bar instead of moving to quash. He complains that the State erred in failing to file a replication to his said motion. No such plea to a motion to quash is required by the State. To a special plea of autrefois convict or autrefois acquit it is the practice for the State to file a replication putting the plea to an issue, but this is not absolutely a prerequisite, since going to trial <on the plea waives the necessity of a replication. [Com. v. McCauley, 105 Mass. 69; State v. Howe, 27 Ore. 138; 12 Cyc. 368; Kelley’s Crim Law & Prac. 236.] Besides, in the instant case defendant specifically moved to quash, and surely he may not convict the State of.error for that it did not formally plead to a motion to quash. We do not think a case can be found anywhere holding that the plea of autrefois acquit can be raised by a motion to quash, and for this reason, if for no- other, the learned trial court was right in overruling the motion. Those desiring to examine some of the applicable functions of a motion to quash may look at the cases of State v. Miller, 188 Mo. 370; State v. Nicholas, 124 Mo. App. 330; State v. Hall, 130 Mo. App. 170; State v. Brooks, 94 Mo. 121; State v. Henderson, 186 Mo. 473; State v. Duvenick, 237 Mo. 185; State v. Montgomery, 181 Mo. 19; State v. Green, 229 Mo. 642; State v. Firey, 223 Mo. 194; State v. Glasscock, supra; State v. Craig, 223 Mo. 201; and State v. Crane, 202 Mo. 54.

Concerning the functions of a motion to quash as distinguished from those of a plea in abatement, it was said in the case of State v. Firey, supra, at page 200:

“For the reasons assigned in that case the appeal of the State must be dismissed, unless the contention of the State in this case, that the plea was not in fact and in law a plea in abatement, is sound. Pleas in abatement are founded on some defect apparent on the face of the accusation or on some matter outside the record proceeding to the insufficiency of the accusation.

“ ‘The rule is that all matters extraneous to the record must be taken advantage of by this plea; while such matters as appear by the accusation — errors apparent — are usually brought to notice by motion to quash, or demurrer, or left for motion in arrest in the event of conviction.’ [Bassett’s Crim. Pl., sec. 178; 1 Chitty’s Crim. Law, sec. 445; 1 Bishop’s New Crim. Proc., sec. 738; 12 Cyc. 718; Sampson v. State, 124 Gra. l. c. 779; State v. Salmon, 216 Mo. l. c. 503; State v. Sullivan, 110 Mo. App. l. c. 80; State v. Bordeaux, 93 N. C. l. c. 563.]

“That the plea alleged facts dehors the record for which the indictment should be quashed in the estimation of the defendant, is apparent, and the matters alleged were properly brought to the attention of the court in a plea in abatement. [Wharton’s Crim. Pl. and Prac., sec. 350, 3b.] ”

It follows that the contention of defendant based upon his theory of a former acquittal, must be disallowed. This conclusion upon a technicality we reach the more readily, since, in our view, even upon the facts the point is not well taken.

II. The second point made by defendant has to do with the sufficiency of the evidence and aptly includes his twelfth point also. This alleged twelfth error ^§333 that the verdict was begotten of passion and prejudice. So we consider these assignments together; pretermitting any other evidence or indication of passion and prejudice, except the inference which would naturally follow the lack of sufficient evidence, if this charge should be found well taken. In passing, we observe that no passion or prejudice is inferable from the severity of the sentence, for it lacks two years of being the maximum fixed by statute as punishment for this offense. [Sec. 4537, R. S. 1909.]

Coming for a determination of this contention to a brief resume of the facts proven, we find that Mrs. Samuel Denny was the owner of certain youthful geese, called in the record by the diminutive “goslings ; ’ ’ that these birds were shut up in a coop as late as 7:30 o ’clock of a certain rare June day near the summer solstice; near this hour the defendant and his wife were seen driving in the direction of the Denny messuage in a buggy and were, when observed, some two miles distant therefrom; at about 10:30 o’clock of that identical night the voices of these infant geese were raised in outcry; when morning came the coop was found open and four of these birds were missing; a muddy footprint was observed upon the fence near the coop. Thereafter, in a day or two young geese of the Emden variety, such as were the four missing ones, were seen upon the premises of defendant, and he was observed assisting his wife in feeding and caring for the flock in which these four geese were and in driving them to roost. Dess than a week later the four geese were found upon defendant’s premises, positively identified by the owner and taken away. It is true a plausible and mayhap truthful explanation of. the alleged possession (of which possession, in connection with another point, we shall later have more to say) is a denial of it made by the defendant, but the matter of identity and the question of whether the goslings found at defendant’s home were those of Mrs. Samuel Denny, as she testified, or those raised by defendant’s wife, as defendant and his wife testified, was for the jury alone. No other necessary matter of proof is called in question. While upon the points sharply contested there was much contradiction, there was likewise ample testimony, the credibility of which, and the right of deciding the truth of which, was for the jury solely. Upon snob a state of facts tbe jury found against defendant; therefore, so do we.

III. Much stress is laid by defendant upon tbe alleged misconduct of special counsel for tbe prosecuti°n; from tbe superabundance of wbicb and tbe overzeal of whom, tbe record seriously suffers. Tbis is always tbe case when special hired counsel for tbe State assist tbe prosecuting attorney in a State case. Tbe overzeal of dollars, always outruns tbe zeal of duty and tbe record resulting, as a rule, bristles with error. Tbis record is no exception. It is filled with things wbicb utterly disregard, tjiq rights of defendant, and wbicb were cleanly begottep of a desire of hired counsel to richly earn ,thejr,,f,qes. But these erroneous matters were not objected to,..or excepted to, and thus saved for our review.. Tbis condition applies as well to tbe offering of testimony, much of wbicb was utterly inadmissible, as it does to the language of hired counsel, wbicb was reprehensible in tbe extreme. But to tbis language of counsel fqr tbe State no objection was made by defendant, nor di$ the learned trial court rule, nor was be asked to rule, nor was any objection or exception made or saved to bis lack of action in failing to rule. In tbis state of tbe .case we ought not to convict tbe trial court of error. Defendant simply “excepted” to tbe remarks of counsel. He did not ask tbe trial judge either to rebuke or further rebuke counsel or fine them or put them in jail; some one of wbicb tbe trial judge might have done, if he bad been asked. It is sufficient, ordinarily, to except simply to tbe erroneous things wbicb tbe trial court himself does; but it is ordinarily necessary first to object to tbe erroneous things wbicb tbe opposing side does and then except' when tbe court refuses to afford relief upon tbe objection made. [Branson v. Commonwealth, 92 Ky. 330.] Under this state of the record we need not pass upon the question of whether the language used by counsel for the State constituted reversible error. For whether it did, or did not, it was not saved for our review. [State v. Rasco, 239 Mo. 535; State v. Miles, 199 Mo. 530; State v. Phillips, 233 Mo. l. c. 307; State v. Souva, 234 Mo. l. c. 571.]

IV. Complaint is made of instruction one given for the State, but no specification of error touching same is urged upon us, except that it is said there is no evidence in the record to base it on. This objection goes to the sufficiency alone of the evidence in the case, a point which >we have already discussed and ruled against the defendant; so we need not here burden these views with it. While instruction one mentioned above does not contain the word “feloniously,” nor does it by any circumlocution define this term, yet, neither does the statute which makes the stealing of domestic fowls a felony, use the word “feloniously.” This case therefore is clearly distinguishable from the case of State v. Rader, 262 Mo. 117, wherein out of deference to the definition of the ordinary crime of grand larceny as the Legislature had ordained it, the writer said that an instruction under the provisions of section 4535 ought either to contain the word “feloniously,” or define it with reference to the intent of the taking.

Complaint upon the sole ground that there was no proof to sustain it is likewise made of instruction two given for the State, which in substance tells the jury that if they find that defendant was assisted by his wife, or that the larceny was committed by the wife of defendant and the latter was- present thereat, aiding, abetting or assisting, he was in such event guilty. There was about as much evidence connecting the wife of defendant with this larceny as there was connecting defendant with it. No other objection is lodged with us against the instruction, and we find it sufficient otherwise. What we have already said as to the sufficiency of the evidence on the whole case applies to one phase of this point. We do not think there was any error in giving this instruction.

Serious complaint is made to the action of the court in giving instruction four on the part of the State. This instruction reads thus:

“If the jury find from the evidence beyond a reasonable doubt that the goslings of Kate Denny; described in instruction number 1, were stolen, taken and carried away from the premises upon which the dwelling house of said Kate Denny and her husband, Samuel Denny, was situated in Clark county, Missouri, on or about the 16th day of June, 1912, in the nighttime, and that on or about June 21st, thereafter, said goslings were found in the exclusive possession of defendant or of defendant and his wife on defendant’s premises, then and in that event, the person or persons in whose possession said goslings were so found, are presumed to have stolen them and the burden is on the defendant to rebut or overcome such presumption to your satisfaction but not beyond a reasonable doubt. And unless such presumption is overcome to your reasonable satisfaction by evidence explaining such possession in a manner consistent with defendant’s innocence, you should find the defendant guilty.”

The defendant insists that the possession which will support this presumption of guilt, in addition to other requisites not heré in question, must be an exclusive possession, and that it was error to permit the jury to presume guilt from a joint possession of defendant and his wife, as said instruction four allowed the jury to do.

We do not agree with this contention of learned counsel. This identical question was up in the case of State v. Phelps, 91 Mo. 478, upon a state of facts not quite so strong as the instant case presents. It was there well ruled against the position of counsel and upon principle we do not feel inclined to take a different view.

Y. Defendant’s proffered instruction “A” was erroneous because it is in consonance with neither the law nor the facts in proof. This instruction in fair substance told the jury that when a search warrant is served by a sheriff the State has the right to have the sheriff retain for use as evidence in the case the property found and which is alleged to have been stolen. The goslings were taken under a search warrant. The duty of the sheriff was to hold them subject to the order of the court or officer authorized to direct the disposition thereof.” [Sec. 5325, R. S. 1909.] The goslings were not offered in evidence in the case. It is a little difficult to conceive of their competency as evidence; but be this as may be, they were not'so used in this case. The instruction was properly refused therefore, since the taking of property by an officer un-der a search warrant is not solely or even necessarily for the purpose of using such property as evidence in any subsequent prosecution. Such use we conceive would be rare and always adventitious. In fact, there may never be a prosecution. The chief object is to recapture the property, so that the real owner of it may not be deprived of it. To this end provisions are made in the statute for the care of the property and for its delivery to the actual owner upon satisfactory proof of ownership. [Sec. 5326 et seq., R. S. 1909.] Neither was the subject-matter of this instruction of such legal sort as- to fall into the category of instructions which the court is compelled to give of his own motion. [State v. Weinberg, 245 Mo. l. c. 575; State v. Douglas, 258 Mo. 281.]

Instruction “B” offered by defendant was prop-, erly refused by the court. It was clearly a bald comment -upon an immaterial and irrelevant matter. If zealous counsel for the prosecution were discussing matters outside the record, an oral objection promptly lodged by defendant would have saved the point. There is no rule of law which requires, or even permits, the issues in a case to be muddied or befogged by a separate instruction as to every bit of evidence which might have been offered, but which in this case was not offered, and which would, or should, have been rejected for irrelevance, if it had been offered. Especially does such a view seem wholesome in a case where as here, the jury was already wrestling with twenty-one instructions.

We have gone with much care and pains over this record with a view to reverse and remand it, if any sufficient legal excuse to that end could be found, since upon the whole case defendant did not have a fair trial. But we have been utterly unable to find such legal excuse ; for those things which would have been error if properly preserved, cannot be considered and reviewed by us, because they were not correctly saved. So finding no error which we can review under the law, we are constrained to order it affirmed, which accordingly we do.

Brown and Walker, JJ., concur.


author: WALKER, J.

text:
    THE STATE v. JOHN TATMAN, Alias JOHN TRAINOR, Appellant.
    Division Two,
    March 30, 1915.
    1. MURDER: Sentence at Death: Doubt as to Guilt: Rule on Appeal. Where the judgment assesses appellant’s punishment at death, and the facts show any doubt of his guilt, any infraction of the well established rules of criminal procedure which may be reasonably held to be prejudicial will work a reversal; but if it appear that there is no doubt of guilt and that a ruthless murder has been committed, only errors tending to prevent a fair and impartial trial will be considered sufficient to justify an interference with the judgment.
    3. -: Persistent Reference to Other Crimes. Unnecessary persistent reference by the prosecuting attorney to other crimes than that' for which defendant was on trial, if upon each occurrence, defendant’s objections to the same were sustained and the officer reprimanded, and if the objections were not sufficiently saved to entitle them to consideration on review, even if they were of a nature calculated to prejudice the rights of appellant, will not work a reversal.
    3. -: General Objection. A general objection is no objection. The trial court and the appellate court are entitled to know the grounds upon which an objection to matters occurring during the trial is based. An objection based upon no reason, and having for its purpose only a captious spirit to effect the exclusion of any fact which counsel may regard as damaging to the defense, does not deserve consideration by the court.

      4. -: -: Improper Remarks. Remarks of the prosecuting attorney in reference to defendant’s having shot at a witness the same night at another place than that of the shooting charged in the information, and in stating that a certain bulletin described defendant and his co-indictee as “hold-up men,” should not be sanctioned, aside from the fact that they weaken the vigor of a prosecution; but if none but a general objection was made thereto, they cannot be reviewed on appeal.
    6. -; Evidence of Other Crimes. An exception to the remark of the trial judge, who, upon an offer of evidence of other crimes, stated, “There will be no evidence admitted of other offenses,” that it assumed. other offenses had been committed by defendant, is too technically trivial for serious consideration.
    6. -: Evidence That Defendant Was Previously Armed. Testimony that an -hour before the shooting of the policeman for which defendant is being tried, he was seen in another part of the city carrying a pistol, and that he shot at a witness who was not present at the scene of the homicide, is proper in connection with the proven character of defendant and his confederate as “hold-up men,” the unexplained 'possession by them of pistols in violation of law shortly before the shooting, their suspicious conduct and flight upon their discovery by the officer, and their immediately subsequent act in shooting that officer when he attempted to arrest them. It was not error to admit the testimony, but even if it were error a general objection to it precludes its being held error.
    7. -: Cross-Examination of Defendant: Why Present in Neighborhood of Crime. Where defendant has admitted that he knew his co-defendant was a “stick up or hold-up man” and that they were going out into the neighborhood of the scene where they shot a policeman to “look over a drug store,” it is not error or improper for the prosecuting attorney to ask him why he was in the neighborhood of the particular drug store where the policeman discovered them the night they shot him.
    8. INSTRUCTIONS: Considered as a Whole. Instructions should be considered as a whole, and if, when so considered, they present every phase of the ease under the evidence, and follow approved established precedents, they will not be held to be erroneous.
    Appeal from Jackson Criminal Court. — lion. E. E. Porterfield, Judge.
    Affirmed.
    O. F. Wimmer and Ben T. Hardin for appellant.
    (1) The conduct of the assistant prosecuting attorney, in his closing argument to the jury, was of the most flagrant and reprehensible type. It was calculated to and did arouse the passions and prejudice of the jury, and inflamed their minds, and it was highly prejudicial and injurious to the rights of this defendant, and constitutes reversible error in this case. State v. Webb, 254 Mo. 428; State v. Wellman, 253 Mo. 316; State v. Baker, 246 Mo. 376; State v. Brown, 247 Mo. 729; State v. Deitz, 235 Mo. 339; State v. Hess, 240 Mo. 159; State v. Spivey, 191 Mo. 112; State v. Schneiders, 168 S. W. 608; State v. Horton, 247 Mo. 666. (2) The court erred in permitting the prosecuting attorney, in his opening statement to the jury, over the objections of the defendant, to refer'to the shooting of witness Feltz at Thirtieth and Oak streets an hour before Lynch was shot, and' to refer to the bulletin having written memoranda of things which had been taken from men in this city; and' in referring to “this man across the table” and his codefendant as “hold-up men” and stating that .the bulletin described them, and that “the bulletin said for him (Lynch) to arrest those men.” Same authorities as cited in Point 1. (3) It was reversible error for the court to permit the State, over the objections of "the defendant,, to give evidence of other crimes alleged to have been committed by defendant and his codefendant, Sherman. That they “gave up” rain coats. And to offer evidence of “a certain open-faced gold watch, bearing the initials ‘E. II. S.’ on it.” Those crimes, if committed by defendant and Sherman, had not the slightest connection with the crime for which defendant was then on trial. State v. Webb, 254 Mo. 435; State v. Wellman, 253 Mo. 314; State v. Duff, 253 Mo. 422; State v. Hyde, 234 Mo. 224. (4) The court erred in admitting evidence given by witness, Peltz, that he saw defendant and Sherman in front of his home at 3220 Oak street, at ten o’clock at night, about an hour before Lynch was shot; that one of them had a pistol. It was shown by Chief Oriffin, that Peltz was shot there that night. This was proof of other alleged crimes against this defendant. (5) This judgment should be reversed because of the misconduct of prosecuting attorney, Jacobs, in recalling the witness Peltz in rebuttal, and asking him again if he saw defendant, Tatman and Sherman at Thirtieth and Oak street on the night of April 30th. He had so testified in his first examination, against defendant’s objection that he saw them “about ten o’clock” the night Lynch was shot. On objection being sustained to the question, said prosecuting attorney was guilty of most reprehensible and wholly inexcusable conduct, of the most prejudicial type, in violation of defendant’s rights, and in violation and absolute disregard of the court’s ruling on the last question asked by him immediately previous thereto. He asked witness: “I will ask you whether or not a shot was fired at you at ten o’clock on the night of April 30th, in the neighborhood of Thirtieth and Oak street in this city.” On objection of defendant’s counsel, which he must certainly have known would promptly be sustained by the court, he beat the court to it, and before the court could-rule on the question, he did worse than before: he replied to defendant’s objection, by saying: “We are going to contradict the defendant’s testimony that this one shot that was fired out of his pistol was fired at his foot.” He had just as well asked Feltz, after he had already asked him if he saw Tatman and Sherman there at ten o’clock, he had just as well asked the question: “I will ask you whether or.not a shot was fired at you by defendant Tatman, at ten o’clock on the night of April 30th, in the neighborhood of Thirtieth and Oak, in this city,” in the very face of the court’s immediately previous ruling that he could not even show that witness saw Tatman and Sherman in that neighborhood. This conduct on the part of the prosecuting attorney constitutes reversible error in this case. State v. Webb, 254 Mo. 434. (6) The court further erred in allowing the prosecuting attorney, over defendant’s objections, to ask him on cross-examination as to his knowledge that he was in company with a “stick-up” man, and, “isn’t it the truth that when you walked half way across the street that you were then headed for the drug store at Ninth and Benton for the purpose of robbing it?” Also, “Had you been car riding to Thirtieth and Oak that night?’’ Also: “I will ask you if it is not a fact that the second shot fired out of your pistol, accounting for the empty shell in your pistol, was not fired out of your pistol an hour before at Thirtieth and Oak streets in this city?” Defendant in his examination in chief, had not referred, even in the most distant or indirect manner, to having been at Thirtieth and Oak streets; or to any shot having been fired there, or to any second shot having been fired out of Ms pistol. He testified that only one shot was fired out of his pistol that night, and that one was fired by Lynch after he took defendant’s pistol from him, and that shot went through defendant’s foot. State v. Horton, 247 Mo. 666; State v. "Webb, 254 Mo. 434; State v. Kyle, 177 Mo. 663; State v. Hathhorn, 166 Mo. 239; State v. Grant, 144 Mo. 63.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
    (1) If an officer suspects from Ms own knowledge of facts or from facts communicated to him by others, that a felony has been committed and has reasonable ground to believe that the accused is guilty of the felony he may arrest him. State v. Spaugh, 200’ Mo. 604; State v. Cushinberry, 157 Mo. 181; State v. Craft, 164 Mo. 653; State v. Albright, 144 Mo. 653; State v. Puller, 96 Mo. 168; State v. Evans, 161 Mo. 108; State v. Holcomb, 86 Mo. 381; State v. Dierberger, 96 Mo. 672. (2) The statement of appellant that on the night of the homicide he, in company with his codefendant whom he knew to be a “hold-up” man, went to the place of the homicide to look over a drug store situated there, was competent evidence to show Ms business there armed, and to .show the deceased officer had reasonable cause taken in connection with their actions there at that time and information he had of other crimes committed in that neighborhood by persons answering the description of appellant and the authority of the officer to arrest him without a warrant. See authorities cited supra. (3) Where the prosecuting attorney indulges in improper argument and on .objection of defendant the court requests the jury to disregard the statements and admonishes the prosecuting attorney to keep within the record, the defendant if not satisfied should ask the court to take further action and failing so to do acquiesces in the action of the court. State v. Wana, 245 Mo. 563; State v. Raftery, 252 Mo. 83. (4) Improper remarks made by tbe prosecuting attorney in either his opening statement or argument to the jury are not reviewable on appeal unless objected to at the time. State v. G-artrell, 171 Mo. 512; State v. Grace, 230 Mo. 307; State v. Phillips, 233 Mo. 307. (5) Where the prosecuting attorney is rebuked by the court for improper remarks, that .will ordinarily be sufficient. State v. Duelly, 245 Mo. 188; State v. Ferrell, 246 Mo. 333; State v. Kullman, 225 Mo. 632. (6) A defendant on the witness stand may be cross-examined in detail as to any matter referred to in his examination in chief and may be contradicted and impeached as any other witness in the case. Sec. 5242, R. S. 1909; State v. Larkin, 250 Mo. 234; State v. Miller, 156 Mo. 85; State v. Sharp, 233 Mo. 284; State v. Barrington, 198 Mo. 71; State v. Feeley, 194 Mo. 315; State v. Kyle, 177 Mo. 663; State v. Fisher, 162 Mo. 172; State v. Cunningham, 154 Mo. 174; State v. McLaughlin, 149 Mo. 29; State v. Punshon, 133 Mo. 54; State v. Eisenhour, 132 Mo. 148; State v. Harvey, 131 Mo. 345; State v. Kennade, 121 Mo. 413; State v. Avery, 113 Mo. 498; State v .McKenzie, 102 Mo. 632; State v. West, 95 Mo. 142;. State v. Brannnm, 95 Mo. 22; State v. Berning, 91 Mo. 85; State v. Taylor, 134 Mo. 156; State v. Miller, 190 Mo. 462; State v. Keener, 225 Mo. 499; State v. Donnington, 245 Mo. 354. (7) It was competent for the prosecuting attorney in his opening statement to refer to and also to introduce in evidence the police bulletin issued to officers concerning crimes committed and descriptions of the perpetrators describing appellant and his confederate to show that the officer had reasonable cause to arrest them. State v. Spaugh, 200 Mo. 605. (8) When the prosecuting attorney makes improper remarks to the jury in his argument and withdraws them and again repeats them and again withdraws them the Supreme Court, if convinced of appellant’s guilt, will affirm the judgment. State v. Baker, 246 Mo. 376. (9) Evidence of other crimes committed by one on trial for homicide is admissible for the purpose of showing that the officer had reasonable grounds for attempting to make the arrest and for the purpose of showing a motive for the homicide. State v. Grant, 79 Mo. 136; State' v. Rudolph, 187 Mo. 84; State v. Collins, 181 Mo. 259; White v. State, 70 Miss. 255; People v. Wilson, 141 N. Y. 188; English v. State, 34 Tex. Crim. 198; State v. Morgan, 22 Utah, 172; State v. Shaw, 73 Yt. 154; Dryer v. State, 139 Ala. 117; People v. Coughlin, 13 Utah, 58; Williams v. Com., 85 Ya. 613; Com. v. Major, 198 Pa. 200; People v. Pool, 27 Cal. 573; Anderson v. State, 133 Wis. 601; State v. Byrd, 72 S. C. 104; People v. Woods, 147 Cal. 265; Bishop v. Com., 109 Ky. 565.
   WALKER, J.

The prosecuting attorney of Jackson county filed an information charging appellant and one Samuel Sherman with murder in the 'first degree in that they shot and killed one John Lynch, April 30, 1913. A severance was granted, and appellant was tried, resulting in his conviction for murder in the first degree, his punishment being fixed at death. From this judgment he appealed to this court.

At about 11:30 o’clock p. m., April 30, 1913, John Lynch, a police officer of Kansas City, in full uniform, went into a drug store on the corner of Ninth street and Benton boulevard in Kansas City for a drink of water. Mr. Alexander, the druggist, gave him the water and he sat down on a stool opposite the soda fountain near the window facing the street to drink it. While the officer was thus occupied appellant and his codefendant came across Benton boulevard from its east side to the middle of same and stopped in front of the drugstore. From this point a clear view could be had of the interior of the store. When appellant and his codefendant stopped in the middle of the street they were within the view of the officer and the druggist, and the former, upon seeing them, said: “I believe those are the men I am looking for,” and started after them. The two men in the meantime, evidently having seen the officer in the drug store, ran rapidly to the corner of Ninth and Benton streets, and then went west on Ninth street. About 125 feet from the drug store they stopped as the officer hallooed to them, saying, “Wait a minute boys, I want to see you.” Alexander, the druggist, who had followed the officer to the door, was a witness to what occurred. When the officer arrived at the point where the two men were standing he reached around under appellant’s coat and took from his hip pocket a revolver. As he did this the shorter of the two men, Sherman, stepped back, drew a pistol and fired at the officer. Several shots then followed in rapid succession. Immediately after the first shot, the druggist ran back to the money drawer, took the cash therefrom, got a pistol and returned to the door. Looking down Ninth street he saw no one but the officer staggering about in a dazed way, his arms hanging limp by his sides. In a few minutes the officer returned to the drug store with a pistol in one of his hands, which he laid on the counter, saying, “Doc, call the wagon, they have shot me.” The pistol he laid on the counter proved afterwards to be the one he took from the appellant, and it had only one empty chamber. The officer rapidly became very weak and blood gushed from his mouth and nostrils, covering the floor and furniture near where he fell. The druggist only saw one shot fired, but estimates that he heard seven or eight additional shots.

A Mr. Kauffman, proprietor of a drug store in the same block as Alexander’s, was sitting in his store when he heard the first shot. He ran to his front door, and as he did so another shot was fired. Reaching the front door he looked east on Ninth street and saw three men, one of them being police officer Lynch. The taller man, appellant, stood near the curb, while the officer stood or staggered about a short distance away. The druggist took in the situation and ran back to get his pistol. When he returned to the door appellant was nearer the terrace, his codefendant was crouching behind a trolley pole or tree and the officer was in about the same position as when the druggist first saw him, and as he staggered about his arms hung limp by his sides. Appellant was firing at the officer as rapidly as the pistol could be discharged, with now and then a shot from his codefendant. As they shot, some one repeatedly, hallooed, “Hold up your hands, hold up your hands.” About one and a half minutes elapsed while this was happening, when appellant and his co-defendant ceased shooting and ran rapidly west on Ninth street. As they passed by witness’s drug store he fired three shots at them.

A domestic in the employ of a family living near the scene had just returned home when she heard the first shot. She was standing near a window affording a view of Ninth street. She raised the window, and, looking out, saw appellant, Sherman and the officer in the street near a gas light about fifty feet away. Appellant was standing two or three feet from Sherman, his codefendant, and both were rapidly shooting at the officer, who was doing nothing in the way of shooting. Appellant’s firing was more rapid and frequent than that of Sherman. When the shooting ceased, the two men ran west on Ninth street, and the officer, groaning as he staggered along, made his way back to Alexander’s drug store.

While this was occurring a police sergeant named Whalen, on duty on a near-by street, heard the shooting and ran in that direction, when he saw the two men running north from Ninth street along Bellefontaine. .Whalen ran after them, and, covering them with his pistol, commanded them to stop and throw up their hands, which they did. Sherman had a pistol in his right hand, and was supporting the appellant, who had been shot in the foot, with his left. They surrendered their pistols to the officer. The one surrendered by appellant was shown to belong to officer Lynch, whom they had shot, and appellant, in a statement made at police headquarters, stated that as Lynch took appellant’s pistol he (appellant) wrenched Lynch’s pistol from him, thus accounting for its possession. Whalen took appellant and Sherman to police headquarters. There were three empty chambers in Sherman’s pistol and no loads in Lynch’s pistol, which had been taken from appellant. The latter’s statement was to this effect:

“I was born in Belleville, Kansas, in 1888. Last night, April 30, about 9:30 or ten o’clock, I met Sam Sherman at Ninth and Walnut. We walked up to the post office, got on the car and rode to three blocks east of Benton boulevard.' Sherman told me he was going out there to look a place over and asked me to come along with him. The place he wanted to look over was the drug store at Ninth and Benton. I knew that Sherman was a ‘stick-up,’ as I learned that about three weeks ago when I first came back from St. Louis. We were walking up the sidewalk and this officer came up. the walk behind us and said, ‘Wait a minute, boys, I want to see you.’ He came up to us and said something else, and at the same time run his hand around under my coat and got my gun out of my hip pocket. Then was when Sherman started to shoot and the officer staggered over to the curbing. He had his gun in his hand and my gun. I didn’t know whether he was going to take a shot at me or not and I grabbed his gun and he just let go of it without struggling and then he fired one shot with the gun he took off of me and that was the shot that hit me in the foot. Then we ran, Sherman helping me, until we were arrested by Sergeant Whalen. I stopped at the Fox Hotel night before last and' gave my name to the man as Jack Trainor.

“"We both had guns. I don’t know where Sherman has been stopping, but I think it is somewhere in the East Bottoms.

“JOHN TATMAN.

“Subscribed and sworn to,” etc.

The life of the appellant stands forfeit for the satisfaction of the judgment. "While we have heretofore set forth a formal statement of the facts as shown by the testimony, something more is necessary, in justice to the appellant and, if it so appears, in justification of the rulings of the trial court. If it be shown that there is any doubt of appellant’s guilt, then any infraction of the well-established rules of criminal procedure which may reasonably be held to be prejudicial- may well work a reversal; but if it appears that there is no doubt ,of guilt and that a ruthless murder has been committed by the appellant, then only errors tending to prevent a fair and impartial trial under the forms of the law should be considered of sufficient magnitude to justify an interference with the judgment. In this view of the case, which comports with a wholesome enforcement of the criminal law, we deem it necessary to set forth with more than ordinary particularity' the facts immediately pertaining to the killing, although it involves some repetition and a certain degree of prolixity.

It was developed by the testimony that officer Lynch was looking for two men suiting the descriptions of appellant and his codefendant, as such descriptions were found in one of the officer’s pockets after he was taken to the hospital. A resume of the testimony of several witnesses shows that when the officer reached the two men who had stopped when he called to them and was taking appellant’s pistol from him, the latter wrenched the officer’s pistol from him and, as before detailed, began to fire rapidly at the officer. The latter was found to have been shot five times. Once through the face; once just below the navel, the shot entering the abdominal cavity and penetrating the intestines; once just below the ribs on the right side, the ball passing entirely through the body; once through the bach of the neck; and once in the back, just below the shoulder blades. The officer lived four or five days after receiving these wounds, when he died from the effects of same.

Various facts in evidence, when considered together, lead to the conclusion that the one empty chamber in appellant’s pistol, which had been taken from him by the officer, was the result.of its having been fired by appellant earlier in the evening at a different place than where the difficulty occurred. There was no evidence other than the statements of appellant and his codefendant that the officer fired a single shot. Disinterested eyewitness near at hand after the first shot, which it is shown was fired by Sherman, say that the officer staggered about with his arms hanging helplessly by his side while appellant and his codefendant fired rapidly at him. Appellant says he never intentionally shot the officer; that two shots were accidentally fired from the officer’s pistol while appellant was struggling with him for its possession. This statement is flatly contradicted by the physical fact that all of the loads in the officer’s pistol, when taken from appellant’s possession, had been discharged, none of them by the officer, and the testimony of persons who witnessed the shooting after the first shot was fired, and who, as we have before stated, testified that appellant and his codefendant, after this shot, stood aloof and repeatedly fired at the officer.

In the face of these facts, while we will with painstaking care review the. assignments of error, our main purpose will be to ascertain whether the appellant had a fair trial. If so, our duty is plain.

T. Conduct of Attorneys for the State. — Appellant contends that the conduct of the assistant prosecuting. attorney in persistently referring to other crimes than that for which appellant was on trial was prejudicial error. . The record discloses that, notwithstanding the seemingly unnecessary persistence of the assistant prosecuting attorney in this respect, upon each occurrence appellant’s objections to same were sustained and the officer reprimanded; besides, the objections made thereto by counsel for the appellant were not sufficiently saved to entitle them to consideration on review, if they had been of a nature calculated to prejudice the rights of appellant. .

A like contention is made in regard to certain alleged remarks of the prosecuting attorney in reference to appellant’s having shot at a witness name Feltz the same night at another place than the scene of the shooting charged in the information, and in stating that a certain bulletin referred to described the “men across the table,” meaning appellant and his codefendant, as “hold-up men.” Such conduct on the part of a public prosecutor charged with the dignified enforcement of the criminal law should not be sanctioned. It lessens the vigor and effect of a prosecution and oftentimes necessitates reversals. ' In this instance, however, no such objection was made as to entitle the error complained of to a review. ¥e have repeatedly held that a general objection is no objection. [Springfield v. Owen, 262 Mo. 92; State v. Fields, 262 Mo. 158; Williams v. Williams, 259 Mo. l. c. 250.] Not only this tribunal, but the trial court, is entitled to know the grounds upon which an objection to matters occurring during the trial is based. [State v. Phillips, 233 Mo. l. c. 307.] An objection based upon a substantial reason is easily stated. If based upon no reason, and having for its purpose only a captious spirit to effect the exclusion of any fact which counsel may regard as damaging to the defense, it does not merit consideration.

II. Evidence of Other Grimes.- — Appellant’s contention in reg’ard to the improper admission of evidence of other crimes is unfounded. The record shows that upon this offer being made, as well as subsequent ones, the trial court said, “There will be no evidence admitted of other offenses,” thus sustaining appellant’s objection. To this ruling, however, counsel for appellant excepted on the ground that it assumed that other offenses had been committed by appellant and was consequently prejudicial. Without intending to exhibit impatience, we deem this contention too technically trivial for further remark.

III. Evidence of Appellant’s Being Armed Before the Shooting. — Testimony was offered by the State that an hour before the commission of the crime appellant was seen in another part of the city carrying a pistol and that he shot at the witness who testified to this fact. This testimony was objected to generally. This precludes our considering it if error, but under the facts in this ease it cannot be so classified. The proven character of the appellant and his codefendant as “hold-up men,” the unexplained possession of firearms in violation of law shortly before the shooting, and the suspicious conduct and flight of the parties from the drug store upon their discovery of the officer, and their subsequent acts, were sufficient to render the fact in question admissible as a circumstance tending to throw light on the homicide. It was not error, therefore, to admit the testimony, even if proper objection had been made thereto. [Wharton on Homicide (3 Ed.), p. 895; State v. Hyde, 234 Mo. l. c. 226; 2 Wharton on Criminal Evidence (10 Ed.), pp. 1680 and 1681.]

IY. Cross-examination of Appellant. — The prosecuting attorney was authorized in asking the appellant on cross-examination, in view of his direct testimony and of all the other facts, why he was in the neighborhood of Alexander’s drug store the night of the crime. He had admitted that he knew his codefendant was a ‘ ‘ stick-up or hold-up man, ’ ’ by which we understand he was a type of highwayman, and that they were going out into the neighborhood to “look over a drug store.” Their status as questionable characters being thus admitted by appellant, evidence of their purpose in the locality where they committed the crime, was proper, as tending to show a motive for its commission. If appellant’s presence at 11:30 o’clock at night near the location where the shooting occurred was lawful, it could and would have been explained by him as a fact tending to strengthen whatever defense he might have made, and no complaint would have been made by his counsel concerning the inquiry. If, therefore, the question is permissible to elicit information from an accused testifying in his own behalf as to the reason of his presence at a certain place shortly before the commission of the crime with which he stands charged, for the purpose of showing a lawful purpose, then the converse is true, and when the defendant goes upon the stand and testifies as to his presence at a certain point and does not explain same he may be asked on cross-examination, his reasons for being there. [State v. English, 67 Mo. 136; State v. Onstott, 170 S. W. (Tex. Cr. App.) 301; State v. Banks, 73 Mo. 592.]

The rule thus announced does not violate that portion of section 5242, Revised Statutes 1909, which provides that a defendant “shall be liable to cross-examination, as to any matter referred to in his examination in chief,” because, as stated, he had testified generally as to his having gone into the locality of Alexander’s drug store just previous to the commission of the crime, and his participation in same and apprehension while fleeing from the scene are physical facts in corroboration of his statement. No substantial ground of error can, therefore, be based on the inquiry complained of, and appellant’s contention is overruled.

Y. Instructions. — Appellant complains that eight of the instructions given contain prejudicial error. We have carefully analyzed each one of which complaint is made, and find in every instance that it follows well-established precedents and is not subject to valid objections. It would profit nothing tp set the instructions forth at length, and we have not done so. Taken upon the whole, and it is in this manner that they should be considered, the instructions presented every phase of, the case under the evidence. Appellant has on this score no substantial ground of complaint.

We feel impelled to say that the manner in which this trial was conducted by counsel for the State is not to be commended, but in view of the prompt rulings of the court in excluding what would otherwise have been error and the failure of counsel for appellant in many instances to save proper exceptions, the defendant, in the face of the unquestioned fact of his guilt, was either not prejudiced or the errors conlplained of are not subject to review.

The facts being conclusive, and a fair trial having been awarded, an affirmance of the judgment must follow, and the sentence imposed by the trial court ordered to be executed, and it is so ordered.

All concur.