author: KENNISH, J.

text:
    McDERMOTT REALTY COMPANY v. UNITED RAILWAYS COMPANY, Appellant.
    In Banc,
    February 9, 1912.
    APPEAL: Premature: Private Road: Order by Circuit Court Remanding Case to County Court: No Final Judgment. Where an appeal in a private road case is allowed by the county court to the circuit court, the latter court has complete jurisdiction to proceed with the case to a final determination, and an order by it remanding the case to the county court is without jurisdiction and is not a final judgment, and an appeal from said order to the Supreme Court is premature. And where the county court has been prohibited by prohibition from, proceeding in the case, an appeal from the unauthorized order of the circuit court will, upon a proper showing, be dismissed.
    On Motion to Set Aside Dismissal.
    Motion overruled.

      J. G. Kishaddon and Boyle & Priest for appellant.

      Buell Matheivs and J. G. McAtee for respondent.
   KENNISH, J.

This is an appeal from a judgment of the circuit court of St. Louis county in a private road case. The proceeding was instituted by respondent in the county court of • said county. Upon the motion of appellant, through whose land the proposed road was petitioned for, the county court dismissed the case. The petitioners appealed to the circuit court where, upon a hearing, the petition was sustained and the cause remanded to the county court . for further proceedings. It was from that order and judgment of the circuit court, that this appeal was taken. When the county court resumed jurisdiction of the case, appellant was awarded a writ of prohibition by this court, against the judges of the county court, to restrain such court- from further entertain ing and exercising jurisdiction therein. The prohibition case was heard and determined in this court in favor of appellant, on the ground that when an appeal is allowed in a private road case from the county court to the circuit court, the latter is possessed of full jurisdiction to proceed with the case to a final determination, and that the order remanding the case to the county court was without authority of law. [State ex rel. United Railways Co. v. Wiethaupt, 238 Mo. 155.] As the order of the circuit court from which the appeal herein was taken was not a final judgment, the appeal was premature. This necessarily follows from the judgment in favor of appellant in the prohibition case.

After the writ of prohibition against the judges of the said county court was made perpetual, the petitioners filed a motion in this court, to which was attached a properly certified copy of the judgment of the circuit court appealed from, asking that the appeal be dismissed. This motion was sustained. Appellant now moves the court to set aside that order, but no valid reason is given why we should take such action, and therefore the motion is overruled.

All concur.


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    THE STATE v. GEORGE W. HESS, Appellant.
    Division Two,
    February 27, 1912.
    1. INDICTMENT: Two Counts: Arson: Burning Goods with Intent to Defraud Insurance Companies: Withdrawal of First: Acquittal of Second. The withdrawal from the jury of the first count of the indictment charging defendant with burning a stock of goods belonging to his wife, did not amount to an acquittal of the charge contained in the second count which charged defendant with burning the same property with intent to defraud the insurance companies by which the property was insured. The two counts charged- different statutory offenses.

      2. ARSON: Attempt: Proof. The indictment charged defendant with burning a stock of drugs, stationery, cigars and shelving, with intent to defraud the insurance companies in which the property was insured. Held, that testimony that fire was burning in four places, two on each side of the store room near the floor, that holes had been made in the walls and the fires started with excelsior and small pieces of wood, that some of the shelving had burned, and that a ledger, which was leaning against one of the fires, was burning, and a part of it saved, was proof that the insured personal property was burned.
    3. REMARKS OF ATTORNEY: Argument to Jury: Horrors of Mob. To hold up before the jury the horrors of mob law is not a proper method of securing verdicts of conviction. Juries should convict on the evidence produced, and not through a fear that law will be set aside and a reign of anarchy substituted unless verdicts of guilty are returned.
    4. -: -: Belief of Prosecutors. An appeal by the prosecuting attorney to the jury to convict, because he believes defendant guilty and because the warrant officer who issued the warrant believed him guilty, is improper and may be prejudicial; and where the case is close on the evidence, and there is strong evidence that the chief witnesses for the State were • angry at defendant because he caught them stealing from his store and kicked them out, and the prosecuting attorney, angered by this impeachment, brought into the scale his own personal belief of defendant’s guilt and that of the officer who issued the warrant, the verdict of guilty will be reversed.
    5. WITHDRAWING COUNT OF INDICTMENT: Acquittal. The voluntary withdrawal by the court of a count of the indictment from the jury after it has been sworn, is an acquittal of defendant of the charge contained in that count, and he cannot again be tried for the crime charged therein.
    6. ARSON: Defrauding Insurance Company: Intent: Instruction. Where defendant is charged with burning a stock of goods with the intent to defraud the insurance company by which they were insured, the court should instruct the jury that, although they may find that defendant burned the goods, they must acquit him unless they believe such burning was done with the intent to defraud the companies.
    Appeal from St. Louis City Circuit Court. — Eon. J. Eugo Grimm, Judge.
    Reversed and remanded.

      G. Orrick Bishop for appellant.
    (1) The record does not show, or tend to show, that any goods, wares, merchandise, fixtures, shelving or furniture were burned in this fire. The demurrers to the evidence, first and last, were directed to the absolute failure of proof of the charge contained in this indictment, and should have been sustained. (2) The court erred in submitting to the jury by its instruction the question of whether defendant did “willfully, maliciously and feloniously set fire to and burn a certain retail stock of drugs, chemicals, bottles, patent medicines, cigars, tobacco and stationery, certain store fixtures, shelving and furniture,” etc., when the 'State had wholly failed to prove that by the fire in question anything had been burned except certain portions of the building in which the above-mentioned chattels were situated. (3) The corpus delicti in arson is not merely the burning of the house, but that it was burned by the willful act of some person criminally responsible for his acts and not by natural or accidental causes. The corpus clelicti must be established in every criminal prosecution before a conviction can be sustained. Mere suspicion, however strong, will not supply the place of evidence when life and liberty are at stake. State v. Jones, 106 Mo. 312; State v. Morney, 196 Mo. 43. It will be noticed in this case that appellant was taken into custody during the progress of the fire, emerging from his sleeping room in the burning building in his night dress, and was kept in close custody for three days and a half before any formal charge was preferred against him, in violation of the law (R. S. 1899’, sec. 2107; R. S. 1909, sec. 4418), and no opportunity was afforded him to examine the place' and ascertain, if he could, the origin of the fires — but the place was left at the mercy of marauders or the manufacture of evidence against him. The suspicion of officer Short and the suspicion of the assistant fire chief (whose pertness and flippancy as a witness will not escape the notice of the court in reviewing his testimony) seem to have been sufficient to place the accused in a position where he could not help himself. And it is worthy of remark in this connection that there was never any suggestion, or appearance of suspicion, on the part of the insurers that there was anything about the fire indicating fraud on the part of -the assured. State v. Pieneck, 46 Wash. 522. (4) The court erred to the prejudice of appellant in excluding testimony tending to contradict the testimony of the boys regarding matches. The testimony of the three boys, on the part of the State, was the only testimony (outside of what may be termed suspicious circumstances) which tended in any way to connect appellant with the alleged arson. And the same exception applies to the exclusion by the court of the testimony of the witness Stille as to the improbability of a person seeing through the window of the drug store into the interior as testified to by the boy witness. Railroad v. Champion, 9 Ind. App. 510. (5) The court erred in permitting the circuit attorney, over defendant’s timely objections, to make improper remarks to the jury in his argument and to argue the case outside the record.. Mere personal abuse of an accused by the prosecuting officer is not only illegitimate argument, but is to be condemned; and the duty of the trial court, when defendant timely objects, is to reprimand. State v. Fischer, 124 Mo. 464; State v. Bobbst, 131 Mo. 338. And where, the prosecuting attorney said, “Escape of criminals at the hands of juries brings on lynch law,” this court said, “such remarks should not be tolerated in a court of justice,” and held it reversible error. State v. Jackson, 95 Mo. 623. (6) Appellant urges that he is entitled to an absolute discharge by this court. The first count of the indictment, if sustained by the evidence, was sufficient to uphold a conviction. The second count, if sustained by the evidence, was sufficient to uphold a conviction; yet it added nothing to the guilt alleged in the first, in no wise varied the charge, in no wise changed the degree of the offense, and in no respect affected the quality or quantity of the punishment. It does not appear from the record that the first count was nolled nor that any election was asked for by appellant, nor that any was directed by the court nor made by the prosecuting attorney. The court in its-first instruction simply stated, ‘ ‘ The first count of the indictment is withdrawn from your consideration.” It needs no citation of authorities that appellant was acquitted on the first count of the offense of arson in the third degree, as charged, and could plead former jeopardy to a later prosecution for the same alleged burning. Yet he was convicted of the very offense of which he was acquitted. Appellant claims that he was acquitted of the crime charged against him before the question of his guilt or innocence was submitted to the jury, and hence there was nothing for the jury to pass upon, and their verdict was “insufficient to support a verdict.” State v. Headrick, 179 Mo. 307.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    (1) The reprimand of the court was sufficient under the circumstances. The only exception was: “Exceptions saved.” No one can tell whether the exception was taken to the remark of the assistant circuit attorney or to the court for not further rebuking the assistant circuit attorney. If appellant wanted this ruling of the court reviewed, he should have objected and excepted to the ruling of the court on the specific ground that the court’s rebuke was not sufficiently severe. (2) In his closing argument, Mr. Rudolph stated, in substance, that he believed the appellant guilty or else he would not be prosecuting him. The argument as preserved in the record was merely an expression of the opinion of the assistant circuit attorney, drawn from all the facts and circumstances which had been proven in this cause. It was perfectly justifiable under the facts disclosed by this record, and was not error. Habel v. State, 28 Tex. App. 588; Young v. State, 19 Tex. 586; Kennedy v. State, 19 Tex. 618; State v. Mack, 45' La. Ann. 1155; State v. Millineier, 102 la. 692; State v. Beasley, 82 la. 83; State v. Carter, 100 la. 509; Ross v. State, 57 Pac. (Wyo.) 924. (3) Mr. Rudolph did not mean to advocate mob law or lynch law, no,r did he mean to convey the idea in his argument that if this appellant should be acquitted such a condition would be brought about. He was merely speaking in general terms as to the failure of jurors to convict for violation of criminal laws. Scott v. State, 7 Lea (Tenn.) 235. Though improper language of counsel fox the State, in argument or otherwise, in a criminal case, has been objected to by defendant, and though an exception has been taken and the language has not been withdrawn, it is not necessarily a ground for reversal. The conduct of the trial being a matter resting in the sound discretion of the trial court, that discretion will not be interfered with except in a case of manifest abuse prejudicial to the accused. Inman v. State, 72 Ga. 269; Combs v. State, 75 Ind. 221; Ford v. State, 34 Ark. 649; People v. Van Zile, 73 Hun (N. Y.) 534; State v. Surles, 117 N. C, 7201; Walker v. State, 28 Tex. App. 503; Atldns v. State, 11 Tex. App. 8; State v. McGahey, 3 N. D. 293; State v. Turner, 36 S. C. 534. The language used by the State’s counsel, though perhaps subject to censure, was not, in view of all the evidence and circumstances attending the trial, such grave departure from the proper line of argument as tó necessitate a reversal of this cause. The jury, under the evidence, could not have returned any other verdict but that the defendant was guilty as charged. State v. Miles, 199’ Mo. 553; State v. Barrington, 198 Mo. 91; State v. Summar, 143 Mo. 234. As a final contention, appellant urges that lie is entitled to an absolute discharge by this court. The facts in this case are entirely different from those in the case of State v. Headrick, 179 Mo. 300. In that case both counts of the indictment charged but a single offense, and were submitted to the jury, which found the defendant guilty on one and not guilty on the other. The case at bar is governed by the case of State v. Whitton, 68 Mo. 91.
   BROWN, J.

Defendant was convicted in the circuit court of St. Louis city of the crime of arson in the -third degree, as defined in section 4511, Revised Statutes 190-9, and appeals from a judgment fixing his punishment at imprisonment in jail for one year.

On August 25, 1909, defendant was conducting a drug store at Frieda and G-ravois in St. Louis city. The stock consisted of drugs, stationery, cigars and sundries, all of which, including the house where they were located, were owned by Lucy Hess, the wife of defendant. The stock of drugs, stationery, shelving and fixtures, was at the time of the alleged crime, insured in favor of said Lucy Hess, as follows: $1800 on stock of goods, and $700 on fixtures;.total insurance, $2500.

The indictment is in two counts. In the first, defendant is charged with burning the stock of drugs, stationery, cigars and shelving belonging to his wife; which charge, if true, would under section 4512, Revised Statutes 1909, amount to arson in the fourth degree, and-is punishable by imprisonment for not less than six months. In the second count of the indictment, he is charged with burning the same property with intent to defraud the companies in which the property was insured. This crime is denounced by section 4511, Revised Statutes 1909; as arson in the third degree; and is punishable by imprisonment for not less than twelve months.

At the close of the evidence, the court of its own motion withdrew from the consideration of the jury the first count of the indictment, and the jury convicted defendant on the second count, and fixed his punishment at twelve months in jail.

Defendant, a physician, purchased a drug store in St. Louis several months before the alleged crime was committed, taking title thereto in the name of his wife. It seems that the store was not located to suit the defendant at the time of the purchase; at least, he moved the stock twice, finally establishing it in a wooden building owned by his wife at Frieda and G-ravois, which building served both as a residence and store.

The defendant was at the drug store alone on the night of August 25, 1909. Near midnight, three boys, George Krissler, Albert Krissler and Ben Dawley, aged from eleven to fourteen years, who claimed to have been out to a moving picture show, came to defendant’s store and sat down on the front steps. They testify their attention was attracted by a noise inside the store room, and looking through the glass front, saw the defendant standing there in a night robe, striking matches. Within a few minutes thereafter these boys saw fires burning inside the store, whereupon they sent in a fire alarm; and about eight-minutes after the alarm was sent in, two policemen and several employees of the fire department came on the scene.

While the fires were burning, the defendant came out of a side door of the building, dressed in a night robe and carrying a suit of clothes under his arm. He also’ carried some money and jewelry in a pocket of his night robe. One of the policemen immediately arrested the defendant, and after allowing him to put on his clothes, accompanied him into a bedroom of the burning building, pursuant to a request of defendant, to be allowed to obtain some additional clothing from a closet. The closet was locked, and after a search the key thereto was found on the floor. Upon unlocking the closet door, no clothing was found, but a fire was burning in the closet.

■One witness testified that a few days before the fire defendant said he did not like his location very well for a drug store; had more stock and fixtures than he could carry insurance on, and a fire would cause him great loss. Defendant also asked said witness if it was necessary to have the signature of the president of an insurance company on a policy of insurance; and also inquired about the location of fire alarm boxes.

A policeman who entered the building stated that he found fires burning in four places, two on each side of the storeroom near the floor; that holes had been made in the walls and the fires started with excelsior and small pieces of wood; that some of the shelving had burned and a ledger, which was leaning against one of the fires, was burning. That he saved part of the ledger.

Other witnesses who examined the building after the fire, testified that the fires appeared to have begum near the ceiling and burned downward toward the floor.

Defendant’s wife claimed damages to the stock of drugs and shelving by reason of the fire, and received from the insurance companies $900 on that account.

Defendant denied the crime and testified that the three boys (Krissler brothers and Dawley), who claimed to have seen him striking matches, were unfriendly to him; that they were street loafers, frequently slipping into his store and stealing cigarettes and other small articles; that about eight o’clock the night of the fire, he came into his store through the side door and found these boys in there with their hands full of cigars and candy. He caught them, took the goods away from them, and after opening the front door, kicked them out. They made considerable noise over being kicked out, and defendant threatened to call the police before he could get them to leave. The defendant was strongly corroborated on this point by one Cunningham, who came into the store about the time the boys were being kicked out. He heard one of the boys curse the defendant and threaten to get even with him. The witness Cunningham, and one other witness, testified that they had on different occasions, seen the Krissler boys and Dawlev steal cigarettes and other articles at defendant’s drug store, and run off with them.

Defendant testified that he went to bed at ten-thirty the night of the fire, after barring the front door of'his store and propping the side door from inside. He was awakened by someone heating on the front or side of the house; and found the side door standing open.

The defendant purchased the stock of goods and fixtures which he is charged with burning, for $1800-, Shortly after the purchase, defendant told several persons he had been “done up awfully” by the misrepresentations of the man he bought of. It does not appear whether this remark referred to the lack of trade at that point or to the quality or quantity of the goods bought. An insurance adjuster estimated the value of the stock of drugs at from $1200- to $1500 at the time of the fire. This estimate did not include fixtures.

In applying for his merchant’s license some months before the fire defendant placed the value of his stock at $2000. Defendant testified to numerous additions to the stock of goods and fixtures; that on July 28th (after the insurance was written) he made one purchase of stock amounting to $1500; and that at the lime of the fire, the stock of goods and fixtures were worth $4500:

Henry Schmitt and Phillip Knebel. who on July 9, 1909, placed the insurance on the stock of goods which defendant is charged with burning, testified that' the defendant did not apply to them for the insurance, but that on four or five different occasions they solicited him to insure, before it was written. Mr. Schmitt, who wrote the insurance, after examining defendant’s stock, testified that he had been in the fire insurance business for forty years, and was familiar with the value of drugs and fixtures. Mr. Knebel visited the store after the insurance was written and observed that the stock of drugs had been increased.

John Crouch, assistant sales manager for the Milliken Drug Company, and apparently well informed in the drug business, together with one Cunningham, who also seemed' to be familiar with the drug business, inventoried the stock of drug’s after the fire, and gave it as their opinion that the stock was worth at the time of the fire at least $3000 to $3500. One John Chittenden, engaged in selling drug specialties, visited the store in July before the fire, and estimated that defendant then had a $3000 stock.

Defendant testified that his last purchase of drugs was paid for with money which his wife kept in a safe deposit vault. The house where the store was located was mortgaged for $1200. It was also insured.

Three witnesses possessing some acquaintance with the defendant, testified that his reputation was good as far as they knew; never having heard anything derogatory of his honesty before the alleged crime was committed.

To secure a reversal, defendant makes the following assignments of error:

1. That the action of the trial court in taldng from the jury the first count of the indictment was equivalent to an acquittal on that count; and that as the same offense was charged in the first count as in the second, the acquittal of defendant on the first,, amounts to an acquittal on the second.

2. That the judgment should he reversed without remanding, because the State failed to prove that any of the property described in the indictment was burned.

3. That the circuit court committed reversible error in allowing- the assistant circuit attorney, over his objection, to make improper remarks to the jury.

OPINION

The withdrawal of the first count of the . indictment from the consideration of the jury, while it amounted to an acquittal of the charge contained in that count, did not work an acquittal of the defendant of the charge contained in the second count.

The ease of State v. Headrick, 179' Mo. 300, does not sustain the theory of defendant. In the Headrick case, both counts of the' indictment charged exactly the same offense, to-wit, assault with intent to kill; and it was held that a verdict finding the defendant not guilty under one count and guilty under the other, could not stand. Here, we have a different situation. The charge of burning the goods with intent to defraud the insurance companies was a different accusation from the ordinary charge of arson in burning the same property without intent to defraud.

Defendant’s contention that there was no evidence that, any of the insured personal property was burned, is not borne out by the record. Officer Short, who ' entered the building while the fire was burning, stated that some of the shelving was burned near the window, also a ledger. There was further proof that part of the insured personal property was burned.

The assistant circuit attorney in his argument to the jury, said:

“If you by your verdict set this man free On this mountain of testimony that I have brought here before you for the last week; if you turn this man loose, then I say to you the courts of justice will be sowing the seeds of discord and dissatisfaction with our system of government.
“Mr. Walsh: We object to that as improper.
“The Court: You may proceed.
“Mr. Walsh: We object to the court’s failure to rule.
“The Court: Objection overruled. You may proceed.”

To which ruling of the court the defendant excepted.

“Assistant Circuit Attorney: I say you will be sowing the seeds of discord and dissatisfaction, from which we are bound to reap a harvest of mob law and violence.
“Mr. Walsh: We object to that as absolutely improper.
“The Court: You may proceed. Objection overruled.
“Assistant Circuit Attorney: I owe a duty when I come in here as prosecutor in this court, to not only prosecute men that I believe guilty; but I also owe a duty to men I believe innocent to turn them free; and I am free to say that if in this case I did not believe this man guilty I would not be trying him here today.
‘ ‘ Mr. Walsh: I object to that.
“The Court: Objection overruled.”

To which ruling of the court defendant excepted.

“Assistant Circuit Attorney: I would not have spent a week trying this case if I had believed Mm innocent. Do you believe these boys lied on that very night when they saw these fires ? They went out there and turned in the fire alarm, and then they came back to the fire and then told the police about it; told their story to the police. On the next morning didn’t they come up here in this room on the third floor, and they laid the matter before the warrant officer, and told the story; and they don’t issue warrants up there unless they find out crimes have been committed.
“Mr. Walsh: We object to that, as strictly against the court’s instruction.
“The Court: That is very objectionable.”

Most of the foregoing argument was improper and prejudicial to defendant.

To hold up before a jury the horrors of mob law is not a proper method of securing' verdicts of conviction. Juries should convict on evidence that crimes have been committed; and not through a fear that all law will be set aside and a reign of anarchy substituted. [State v. Jackson, 95 Mo. 623, l. c. 653.]

The assistant circuit attorney appears to have been angered by the fact that defendant had in some measure impeached the leading witnesses for the State, by evidence that they were thieves; and in his zeal to secure a conviction, appealed to the jury to convict the defendant because he (the prosecutor) believed him guilty, and the party who issued, the warrant believed him guilty. The issue of the warrant was no evidence of the defendant’s guilt; and the personal belief of the prosecutor in defendant’s guilt furnished no grounds for a conviction; because that belief might have been based on matters which were not before the jury in the form of evidence. However, if the prosecutor was personally known to the jurors, as a man in whose judgment and veracity they had confidence, the argument may have had much weight in securing the verdict. [State v. Furgerson, 152 Mo. 92; State v. Wigger, 196 Mo. 90; State v. Phillips, 233 Mo. 299.]

We are reluctant to reverse judgments on account of improper remarks of attorneys. When the proof of guilt is dear from the mouths of disinterested and credible witnesses, we seldom reverse judgments for improper arguments, because in such cases a verdict of guilty would likely have been returned, regardless of the improper remarks; but here, the proof is strong that the chief witnesses for the State were angry at defendant because he caught them stealing, and kicked them out of his store. In demanding convictions on such testimony, prosecutors should confine themselves to legitimate arguments.

The judgment in this case must be reversed, because of the improper argument of the prosecutor.

By withdrawing the first count of the indictment after the jury was sworn, the defendant was acquitted of the charge contained in that count, and cannot again be tried for the crime of arson in the fourth degree. [Sec. 23, Art. 2, Constitution of Missouri; State v. Manning, 168 Mo. 418.]

Upon a retrial, the court should instruct the jury that although they may find that defendant burned the goods, as charged, they must acquit him, unless they believe such burning was done with the intent to defraud the companies in which the property was insured.

The judgment is reversed and the cause remanded.

Ferriss, P. J., and Kennish, J., concur.


text:
    THE STATE v. FRANK BARRETT, Appellant.
    Division Two,
    February 27, 1912.
    1. EVIDENCE: Impeachment of Defendant. It is not error to admit, in rebuttal, after defendant has testified as a witness, testimony of his bad moral character, although it relates to his hahit of excessive drinking, and he is on trial for murder.
    2. -: Deceased’s Former Acts of Violence. Testimony of prior particular acts of violence committed by deceased against others than defendant, of which defendant had no knowledge of any other kind at the time of the homicide, is properly excluded.

      3. -: Deceased’s Desperate Character: Opinion of Reputation. There being ample evidence that deceased was generally reputed to be a violent, desperate and dangerous man, mere opinion testimony of his reputation in this respect, such as the opinion that he had been “the most dangerous man in the county,” should be excluded. The fact of bad reputation is the thing to be established. Its comparison with an uncertain and undefined standard cannot aid the jury or benefit defendant.
    4. MANSLAUGHTER: Instruction: No Violence or-Personal Assault. Although there is evidence tending to prove that deceased was advancing upon defendant, with a stick or club in his hand, and in a threatening manner, at the time defendant fired the shots, yet if there is none tending to show an assault by the deceased amounting to personal violence, there is no room in the case for an instruction on manslaughter in the fourth degree. To have the effect of reducing the grade of the homicide from murder to manslaughter, the provocation must consist of personal violence.
    5. REPUTATION: Knowledge: Apprehension: As Explaining Deceased’s Conduct During Difficulty. The court should instruct the jury that the bad reputation of deceased, if known to defendant, should be considered by the jury in their consideration of defendant’s reasonable cause for apprehension of great personal injury. But it is not error to refuse to instruct them that they may consider his bad reputation, whether known to defendant or not, for the purpose of explaining the conduct of the deceased during the difficulty. So that the court did not err in refusing an instruction asked by defendant directing them to consider the deceased’s bad character, though unknown to defendant, “for the purpose of throwing light on the conduct and demeanor of deceased during the difficulty, and also for the purpose of throwing light on defendant’s apprehensions, if any, at the time of the shooting.” [Holding that this ruling is not in conflict with the prior cases of State v. Kennade, 121 Mo. 1. c. 415, and State v. Hicks, 27 Mo. 1. c. 590.]

    Appeal from Pemiscot Circuit Court. — lion. II. G. ' Riley, Judge.
    Affirmed.

      G. P. HaivMns for appellant.
    (1) The information does not charge that it was preferred against the defendant by the prosecuting attorney of Pemiscot county, but appears to have been filed by one acting for the entire State. R. S. 1909, sec. 5115. (2) If the defendant should have been convicted at all, it should not have been for more than manslaughter in the fourth degree, and the punishment being two years, the punishment was excessive. R. S. 1909, sec. 4551. (3) The trial court should have instructed for manslaughter in the fourth degree. (4) The court, over the objection of the defendant at the time, allowed the prosecuting attorney to ask the defendant if he had not killed a man in some other State before coming to Missouri, which had a tendency to prejudice the jury against the defendant. (5) The court permitted the prosecuting attorney to attack and call in question the reputation of the defendant when the same had not been put in issue by the defendant, and further allowed the State to prove the defendant was a drinking man. (6) The court should not have allowed the State to prove alleged specific acts of the witness Hill for the purpose of attempting to impeach him. (7) The defendant undertook to prove that the deceased had beat the wash woman, cut old man Lett’s throat, and when drinking was regarded as the most desperate and dangerous man in Pemiscot county This, the trial court refused. The jury should have known how desperate he was when drinking, as it was this man the defendant had to meet. (8) Self-defense was established beyond all question and if he should not have been acquitted then he should only have been convicted for manslaughter in the fourth degree and the punishment was and is excessive. R. S. 1909, secs. 4467, 4469 and 4551; State v. Bowls, 146 Mo. 6.

      Elliott W. Major, Attorney-General, and Campbell Cummings, Assistant Attorney-General, for the State.
    (1) The information is sufficient in every respect and a substantial compliance with the statutes, being signed by the prosecuting attorney and verified by his oath. It is of no consequence that he used his initials in his name or in his signature. Sec. 5057, R. S. 1909; State v. Kelley, 191 Mo. 680; State v. Brock, 186 Mo. 457; State v. Kyle, 166 Mo. 287; State v. Campbell, 210 Mo. 215; State v. Walker, 129 Mo. App'. 376'. It was not error to permit the State to prove defendant’s general reputation for morality in the community where he lived to be bad, as all such was introduced after defendant had testified. The remaining objections either came too late after witness had answered or were perfectly harmless and without merit. When witness had answered before objection, a motion to strike out should have been made. State v. Lovell, 235 Mo. 343; State v. Bateman, 198 Mo. 212. (3) The inquiry as to the character of deceased must relate solely to his general character for violence, ferocity, vindictiveness or blood-thirstiness. 21 Cye. 910, 956, 960, 971; State v. Elkins, 63 Mo. 159; State v. Jones, 134 Mo. 254; State v. Zorn, 202 Mo. 29; State v. Sykes, 191 Mo. 6-2; State v. Foley, 144 Mo. 600. (4) Particular assaults of deceased against third parties were wholly incompetent and irrelevant. It was not a proper way to prove that the deceased was a turbulent and dangerous man; and it was not shown even that defendant was present or had any knowledge of them. State v. Green, 229 Mo. 652; State v. Jones, 134 Mo. 262; State v. Nelson, 166 Mo. 205; State v. Elkins, 63 Mo. 165, 21 Oyc. 960. (5) After certain of appellant’s witnesses had testified that the deceased’s reputation was bad for peace and quiet and for being a turbulent, quarrelsome, dangerous and fighting man they were asked: “As a matter of fact, wasn’t deceased the rvorst and most dangerous man in the county at that time ¶ I will ask you whether or not you didn’t consider deceased one of the worst and most dangerous men in your county at that time?” They call clearly for the individual opinion of five witness without any foundation being laid. State v. Elkins, 63 Mo. 165; State v. Niehaus, 217 Mo. 352, 21 Cvc. 961. 'Defendant’s refused instruction, as to the quarrelsome, turbulent and dangerous character of the deceased, is not limited by knowledge thereof possessed by the defendant. If this court finds that there was a doubt as to who was the aggressor and decides to follow the Peeley case, and the cases therein cited, then we are inclined to believe that the refusal of appellant’s instruction was error — unless the court holds that appellant, at his own instance, offering the two instructions (3 and 5), cannot complain of the error. State v. Payne, 223 Mo. 112; State v. Linn, 223 Mo. 98; E. S. 1909, sec. 5115.
   KENNISH, J.

Convicted in the Pemiscot Circuit Court of murder in the second degree, defendant appealed.

The evidence for the State tended to show that, in company with others, deceased and defendant, on the day of the killing, had participated in a drinking bout at the home of one Fronan, a witness for the State. Deceased and defendant were on friendly terms when they reached Fronan’s, the gun (unloaded) which defendant had and the knife in Sells’s (deceased’s) possession being taken for no unlawful purpose, so far as the evidence in this record indicates.

Fronan, aware of deceased’s dangerous disposition, secured the latter’s knife in advance of and in order to prevent trouble, but did not deem it necessary to deprive defendant of his gun. After drinking considerably and engaging in some boisterous conduct at Fronan’s, and after defendant had searched deceased (whether for weapons or whisky the evidence is not clear), the two left Fronan’s and went to the hotel where their conversation indicated that a quarrel had been in progress, and. where the evidence of one witness indicates defendant threatened to kill deceased, but, though armed with his shotgun, made no effort to do so.

Sells, the deceased, left the hotel, and defendant went to his room and soon came out loading his gun. He then went to the front of a lumber company’s office and sat down upon the steps. In a short time Sells came into view and walked down to a store some forty feet from where defendant was sitting, looked into the store, turned, retraced his steps, procured an oak club, a piece of stacking stick, about three feet long, one inch thick and two inches broad, and walked rapidly, weapon in hand (“like he was looking fo,r something”), past the store mentioned, along the porch, toward where defendant was sitting. As he approached, the latter jumped off and away from the steps, and deceased leaped toward him “but not quite facing him,” and as he reached the ground a few feet from defendant, the latter fired, the charge striking Sells on the right shoulder. This shot was fired at such close range that it set fire to deceased’s clothing, and though the injury inflicted was not a fatal one the wounded man dropped his club and ran “between fifteen and twenty-five feet” to a fence, when defendant raised his gun and fired a second time. Sells was looking sidewise toward defendant, but turned just as the shot was fired, so that it struck him in the back of the head and caused his death in a few minutes. It appears from the testimony of the physician who reached Sells in a very short time, that this second shot singed or burned the hair along the neck.

On cross-examination several witnesses for the State testified that deceased had the reputation of being a violent, turbulent and dangerous man.

On the part of the defense, the evidence tended to show that deceased, knife in hand, had been looking for defendant, declaring he intended “to cut his throat if he could find him;” that immediately before he was killed, as he approached the place where defendant was sitting, lie told one witness (referring to defendant) that he was “going to kill the son-of-a-bitch before night;” that as he walked straight to where defendant was sitting, the latter arose from the steps and, as Sells, after coming down the steps, advanced upon him with the clnb raised to strike, drew his gun up and fired twice in rapid succession, Sells wheeling as the first shot was fired.

Threats on the same day by Sells to Mil. defendant “before he slept a wink,” and the like, were in-evidence, and witnesses (including officials) for the defense, as well as those for the State, testified to the fact that deceased had the reputation of being a violent, dangerous and desperate man, and the record of his conviction for felonious assault and sentence to the penitentiary was in evidence. There was also evidence that during the afternoon Sells had drawn a knife on defendant, and, with vile epithets, declared he “had it in for him and this is as good time to settle it as we will ever get. ’ ’

Defendant’s version of the matter was that after being threatened by deceased during the afternoon, he concluded to leave the town to avoid trouble and took his shotgun to kill rabbits for bait on his trot line; that he came around the back way to avoid being seen by Sells, and when he reached a point between the store and the office Sells was on the office porch with a knife and a club and immediately declared he was going to “cut his [defendant’s] head off,” and “beat him up,” and started for him; that Sells jumped off the porch, and was coming at him when he fired twice, as quickly as he could, and that he .shot because hé had to do so to save his own life.

The State offered some evidence that defendant’s reputation for morality was bad. Cross-examination developed the fact that this was due practically entirely to his habit of drinking too much.

Numerous exceptions were saved to the rulings of the trial court.

In answer to the objections made to the information, nothing need be said save that previous decisions (State v. Bailey, 190 Mo. l. c. 263; State v. Barnett, 203 Mo. l. c. 645; State v. Hudspeth, 150 Mo. l. c. 19; State v. Turlington, 102 Mo. l. c 647) attest its sufficiency, and no further reply need be made to the complaint of the ruling of the trial court in admitting evidence of defendant’s bad moral character, in rebuttal and after he had testified as a witness, than that the ruling was in accord with the settled law of this State. [State v. Beckner, 194 Mo. 281; State v. Priest, 215 Mo. l. c. 7.]

The ruling excluding evidence of prior particular acts of violence committed by deceased against others than defendant, of which defendant had no knowledge of any kind at the time of the homicide, was in accord with the rule long adhered to in this State. [State v. Green, 229 Mo. l. c. 652; State v. Elkins, 63 Mo. l. c. 165.] There was ample evidence that deceased was generally reputed to be of violent, dangerous and desperate character. In fact, there was no contention to the contrary, witnesses for the State and defendant agreeing in this particular.

Nor was it error to exclude mere opinions' as to the deceased’s reputation in the respect mentioned, and opinions as to whether deceased had not been the “most dangerous man” in the county. The same witnesses testified to the fact of bad reputation, and comparisons with an uncertain and undefined standard of this kind could not have aided the jury or benefited the defendant in this case.

Complaint is also made that the court permitted the State to show that defendant was in the habit of drinking, and to show specific acts of wrong-doing for the purpose of impeaching the witness Hill. A careful examination of the record discloses that there is no foundation therein for this assignment. These matters were brought out by defendant’s counsel on the cross-examination of impeaching* witnesses, and seem to have been purposely elicited to break the force of the general answers given by such witnesses, by showing that the bad reputation to which they had testified was the outgrowth of matters of no great consequence so far as concerned the trait with respect to which the State was endeavoring to impeach defendant and his witness Hill. There is nothing in this assignment.

Appellant complains that the court erred in failing to instruct the jury on manslaughter in the fourth degree. No exception was saved to the action of the court in failing to so instruct, but one of the grounds of the motion for a new trial was that “the court erred in refusing to fully instruct the jury on all matters of law, as required by law, over the objections and exceptions of the defendant at the time.” Under the view we have taken of this assignment it is unnecessary to notice the technical question as to whether the alleged failure to instruct on manslaughter is properly preserved for review in this court.

While there was evidence tending to prove that the deceased was advancing upon the defendant, with a stick or club in his hand, and in a threatening manner, at the time the shots were fired, there was no testimony whatever tending to show an assault by the deceased amounting to personal violence. This court, long ago, in the case of State v. Starr, 38 Mo. l. c. 277, not only announced the law applicable to the facts of this case, but also the reason for the rule there adopted and the unwisdom of “one fluctuating or less rigid,” in the following language:

“To have the effect to reduce the guilt of killing to the lower grade, the provocation must consist of personal violence. [Whart., Crim. L. 436; State v. Merril, 2 Dev. 269; Beauchamp v. State, 6 Blackf. 299; Oneby’s Case, 2 Ld. Raym. 1485; 1 Russ, on Cr., 435; Whart. on Hom., 170.] This rule is well established, and we imagine it would not be the part of wisdom to substitute in its place one fluctuating or less rigid, which would require the accused to be judged in each case according to the excitement incident to his natural temperament when aroused by real or fancied insult given by words alone. [Kelley, 135.] There must be an assault upon the person, as where the provocation was by pulling the nose, purposely jostling the slayer aside in the highway (Lannusse’s Case, 1 Hale P. C. 455), or other direct and actual battery. [Rex v. Stedman, Foster, 292.]”

The doctrine of- that case has been followed in a long line of decisions, with very few exceptions, and it has been reviewed and reaffirmed in the recent cases of State v. Gartrell, 171 Mo. 489; l. c. 517; State v. Gordon,. 191 Mo. 114, l. c. 125; State v. Sebastian, 215 Mo. 58, l. c. 80; State v. McKenzie, 228 Mo. 385; l. c. 402 and State v. Sharp, 233 Mo. 269, l. c. 290.

We adhere to the doctrine of the cases cited, and hold that under the evidence appellant was not entitled to an instruction on manslaughter in the fourth degree.

Instruction numbered 5, given by the court of its own motion, was as follows:

“The court instructs the jury that if you believe from the evidence that the deceased was of a rash, turbulent and violent disposition, and that the defendant had knowledge of such disposition, then it is a circumstance for the consideration of the jury in considering the reasonable cause for defendant’s apprehension of great personal injury to himself.”

And instruction numbered 3, requested ‘by appellant and refused by the court, was as follows:

“The court instructs the jury that you will take into consideration the evidence as to the quarrelsome, turbulent and dangerous character of the deceased, and give it such credit and weight as you deem it entitled to. You may also consider such evidence for the purpose of throwing light upon the conduct and demeanor of the deceased during the difficulty between him and the defendant, and also for the purpose of throwing light upon the defendant’s apprehensions, if any, at the time of the shooting.”

Appellant complains that the court erred in giv7 ing the first of the foregoing instructions and in refusing to give the second.

A comparison of the two instructions shows that the court limited the consideration of the reputation of the deceased as a dangerous man to the defendant’s right of self-defense, and authorized the jury to consider such testimony for that purpose only in case they found that the defendant had knowledge of such reputation. On the other hand the said instruction asked by the defendant and refused, authorized the. jury to consider the bad character of the deceased, though unknown to the defendant, “for the purpose of throwing light on the conduct and demeanor of the deceased during the difficulty . . . and also for the purpose of throwing light on defendant’s apprehensions, if any, at the time of the shooting.” It is ■clear that the evidence tending to show the reputation of the deceased as a dangerous man could not have affected defendant’s apprehension if unknown to him, and to that extent the court did not err in thus refusing the defendant’s instruction. Was the defendant entitled to the instruction directing the jury that they might consider such testimony for the purpose of explaining the conduct-of the deceased during the difficulty?

In the ease of State v. Kennade, 121 Mo. l. c. 415, discussing this question, the court said: “Even if deceased had a reputation for being quarrelsome and dangerous, evidence of it could not have been received unless it had been previously shown that defendant knew it, and therefore might more reasonably apprehend danger in certain circumstances, than if that reputation had been different. As this knowledge of defendant of the reputation of the deceased is affirmatively shown by his own testimony not to have existed, an answer to the question asked the officers was correctly denied.”

And in the case of State v. Hicks, 27 Mo. l. c. 590: “But the imminence of danger that will justify us in acting upon the instinct of our nature in repelling a blow before it is received, often depends on the character of the assailant. The menacing attitude of a person generally peaceable and law-abiding would often excite no just apprehension of danger, whilst similar conduct of a fierce, vindictive and passionate man would naturally alarm our fears and make us prompt in anticipating his purposes. When danger is threatened and • impending we are not compelled to stand with our arms folded until it is too late 'to strike, but the law permits us to act on reasonable fear; and therefore when the killing has been under circumstances that create a doubt as to whether the act was committed in malice or from a sense of real danger, the jury have a right to consider any testimony that will explain the motive that prompted the accused.”

. In the Hicks case, as shown by the excerpt quoted, it was held that testimony tending to prove that the deceased was a dangerous man was admissible only where there was doubt as to whether the killing was from, malice or from a sense of real danger, that is, whether the homicide was murder or justifiable on the ground of self-defense. The willful killing of a human being is presumptively murder and therefore in such case malice may be presumed, and there may be evidence tending to prove malice. To negative malice the character of the assailant as a dangerous man, if known, is held admissible because it tends to prove that the killing was from a sense of danger, but as a sense of danger by reason of deceased’s character could not exist unless the defendant had knowledge thereof it necessarily follows that in the absence of such knowledge such evidence can have no bearing upon the issue whether the killing was from malice or from a sense of danger.

But it is said that the doctrine of the foregoing eases is overruled by the case of State v. Feeley, 194 Mo. 300. The latter case is also reported in 3 L. R. A. (N. S.) 351, and extensively annotated on the point now before us. A consideration of the many cases there reviewed- has convinced us that the current of authority is in accord with the doctrine of the Hicks and Kennade cases and' as adopted by the trial court in this case.

In 2 Bishop’s New Criminal Procedure (4 Ed.), sec. 611, the reason upon which the rule is based is stated in the following language: “What was unknown to the defendant cannot thus be shown, because it is impossible he should have acted upon it. We have seen that one may rely upon what he did not know when its effect is to prove the absence of any wrong or injury; because then the criminal act did not concur with the criminal intent, both of which are essential in crime. But here, where the act, namely, the homicide, has been committed, and the further inquiry relates simply to the mental condition prompting it, only what the doer knew is relevant; for that alone could have influenced his mind, or in any way contributed to the doing.” In Wharton on Homicide (3 Ed.), sec. 263, the law is stated as follows: “The character of the deceased as a violent and dangerous man, offered in evidence for the purpose of showing that the accused had reason to believe himself to be in danger, is not material unless knowledge of such character upon the part of the accused is shown. Though a person has a reputation for being quarrelsome, evidence to that effect cannot be received in a prosecution against another for killing him, unless it was previously shown that the accused knew it, and therefore might more reasonably apprehend danger from him. ’ ’ And in 21 Cyc. 957, it is said: “It is generally considered to be necessary in order to admit evidence of the dangerous and violent character of deceased that this should appear to have been known to defendant, as otherwise it could not have influenced him, ’ ’ etc.

The Peeley case holds that the Kennade case is in conflict with certain decisions of this court therein cited, to-wit: State v. Hicks, 27 Mo. 588; State v. Keene, 50 Mo. 357; State v. Bryant, 55 Mo. 75; State v. Elkins, 63 Mo. 159; and State v. Downs, 91 Mo. 19; and therefore that it should no longer be followed. Because of the importance of this question in criminal procedure we have carefully re-examined the original record in that case now on file in the office of the clerk of this court, and we have failed to find such conflict. On the contrary we think the Kennade case is in accord with the doctrine of the former cases and also with the theory upon which the Peeley case was tried and affirmed in this court.

The question discussed in the Peeley case, as stated, is as follows: “It is said for defendant that the court erred in permitting the State to show the general reputation of deceased when not drinking,, when the defendant had only introduced evidence tending to show that deceased was a quarrelsome and dangerous man when drinking. The argument is that such evidence upon the part of the State was improper, not rebuttal, and brought forward an issue not raised by the defendant. ’ ’ After a review of the authorities on the subject the following conclusion is arrived at, namely, 1. c. 320: “In the case at bar, defendant testified that he shot deceased because he was afraid deceased was going to kill him, and under such circumstances evidence of the character of the deceased for being quarrelsome and dangerous when drinking was properly admitted.”

No objection was made in that case, either on the trial or in this court, to the competency of the evidence tending to show the reputation of the deceased for being quarrelsome when drinking. That testimony was introduced without objection, and it is clear that an objection thereto, if made at all, would have been made by the State and not by the defendant. The question presented on appeal was as to the right of the State to rebut the evidence of the defendant upon the issue of quarrelsomeness by introducing evidence showing that the general reputation of the deceased for peace, quiet and good citizenship was good when not drinking and generally. This court sustained the trial court in admitting such rebuttal testimony. The court gave the following instruction upon that issue which, it will be observed, is almost identical with the instruction given in the case at bar, to-wit: “If the jury believe from the evidence that the deceased was of a rash, turbulent, quarrelsome and dangerous disposition when drinking and under the influence of liquor, and that at the time of the difficulty the deceased had been drinking and was to any extent under the influence of liquor, or appeared to be so, and that defendant had knowledge of such disposition at the time of the alleged killing, then it is a circumstance for the consideration of the jury in considering the reasonable cause for defendant’s apprehension of great personal injury to himself.”

It is argued that as uncommunicated threats were admissible to explain the conduct and demeanor of the deceased at the time of the homicide, and to show who was the aggressor, by analogy testimony showing that deceased was a dangerous man should be admitted for the same purpose; but there is plainly such close connection between a threat to kill and an attempt to do the act threatened, and such a lack of it between evidence of the bad character of the deceased unknown to the defendant, and the homicide, that the competency of the former cannot be considered as affording a reason for the competency of the latter. If the defendant knew he was dealing with a dangerous man his apprehension and right to act should be gauged according to such knowledge and the surrounding facts and circumstances. But if he did not know whether the deceased was a dangerous or peaceable man his right to act from apprehension of danger and in self-defense could not have been affected by the reputation of his assailant.

We are aware that the decisions are not in accord upon this subject, and that there are certain exceptions to the general rule not presented by the facts of this record, but we think the great weight of authority sustains the theory upon which the trial court instructed the jury in this case, and we hold that the court properly refused defendant’s instruction numbered 3.

There were circumstances in evidence warranting the inference that the loading of the gun by the defendant, after his first altercation with the deceased, and then taking a position in a public place where he had reason to expect a renewal of the quarrel, was deliberately planned for the purpose of inviting the difficulty, and that the homicide was committed in accordance with such purpose. However, the State elected to try the defendant for murder in the second degree and as the record fails to disclose error prejudicial to the defendant the judgment is affirmed.

Ferriss, P. J., concurs, Brown, J., concurs in the result.


author: BLAIR, C.

text:
    MINNIE MENTEER, Appellant, v. SCALZO FRUIT COMPANY.
    Division Two,
    February 27, 1912.
    1. NEGLIGENCE: Customer: Overstepping Bounds of Invitation: Elevator. Deceased was a customer of defendant who had frequently visited defendant’s wholesale fruit store and made purchases in person. About noon on a day in 1904 his dead body was found at the bottom of an elevator shaft in defendant’s store. No one was aware of his presence on the premises until the body was discovered. According to the evidence, deceased had, without invitation, entered a part of the building not designed for unattended customers; the elevator was not used to carry passengers, and there was a barrier in front of the entrance heavy and hard to pull aside and two and one-half to three feet high. Held, that there can be no recovery for the death.
    2. -: Duty of Merchant to Customer as Invitee: Licensee. A merchant’s duty to use ordinary care to keep the premises to which he expressly or impliedly invites customers in such condition as to prevent injury to them arises out of and is coextensive, both as to time and place, with the invitation extended. The invitation cannot be enlarged by the customer to include parts of the premises to which the invitation does not extend. When an invitee steps clearly beyond the bounds of his invitation be becomes a mere licensee at most, and must take as he finds it the part of the premises he then enters. He may complain of wanton or intentional injuries or active negligence, but not that the place was not made safe.
    3. EVIDENCE: Presumptions: Contributory Negligence: Invitee. It cannot be presumed that the barrier at the entrance to the elevator shaft was not in place. There is a presumption that persons killed by the negligence of another were at the time exercising due care, but that presumption is not one of defendant’s negligence. It is a presumption of deceased’s freedom from contributory negligence, and certainly no such presumption can be relied upon to enlarge the invitation to deceased.
    Appeal from St. Louis City Circuit Court. — Hon. W. M. Kinsey, Judge.
    Affirmed.

      Perry Post Taylor and Emil Mayer for appellant.
    (1) Each and every averment of the petition essential to fix liability upon the defendant was sustained by some evidence. Hence, the court should have overruled the demurrer to the evidence and permitted the jury to decide the issues of fact. Koerner v. Car Co., 209 Mo. 151; Hollweg v. Telephone Co., 195 Mo. 165. (2) Deceased, having entered defendant ’s premises, as a customer, on business for the benefit of defendant, as well as of himself, was there as an invitee, and it was the duty of the defendant to exercise reasonable care to keep its premises in such condition that, if deceased was himself exercising such care, the latter would not suffer injury. Glaser v. Rothschild, 221 Mo. 186; Welch v. McAllister, 15 Mo. App. 496; Miller v. Dry Goods Co., 104 Mo. App. 609; Pauckner v. Wakem, 14 L. R. A. (N. S.) 1118, 231 111. 276. (3) There being no evidence to the contrary, it must be presumed that the deceased, when he fell, was in the exercise of ordinary care. Buesching v. Gas Light Co., 73 Mo. 231; Goff v. Transit Co., 199 Mo. ' 706; Railroad v. Gentry, 163 U. S. 353. (4) It must be inferred from {he evidence that defendant entered the shaft by way of the entrance from the shipping room floor. If he had a right, as a customer, to be there, it was for the juiy to determine whether or not defendant was negligent in maintaining its premises in its then condition. Lamb v.' Railroad, 147 Mo. 186. (5) It was for the jury to determine whether or not the defendant was negligent in maintaining the elevator hatchway at the shipping room floor in the condition disclosed by the evidence. Lamb v. Railroad, supra; Meng v. Railroad, 108 Mo. App. 553. (6) The court erred in excluding testimony as to statements of deceased, made shortly prior to his death, as to where he was going and for what purpose. Such statements could not, in view of all the facts, have been self-serving. They were a part of the res gestae. ■ 16 Cyc. 1241, 1243.

      G. H. Krum and G. B. Sidener for respondent.
   BLAIR, C.

This is an appeal from an order overruling a motion to set aside a nonsuit in an action for damages for the death of Thomas Menteer. .

The third amended petition stated that defendant was engaged in the wholesale fruit business in St. Louis, Missouri; that it was defendant’s duty to keep the premises it occupied in such condition as that the lives and limbs of its customers would not be endangered, and proceeds:

‘ ‘ Plaintiff avers that defendant failed and neglected to keep said premises in such condition, and more particularly in this, to-wit:
‘ ‘ That in said building there was at the time of the death of plaintiff’s husband, and had been for a long time prior thereto, an elevator shaft running from the basement to the top floor of said building and that in said shaft defendant used and operated an elevator; that the entrance to said shaft from the shipping room floor of said building was constructed in such a manner as to bear n.o resemblance to the usual entrance to such a shaft but was so constructed as to deceive persons unfamiliar with the premises as to its true nature, and that the same might be readily mistaken by persons lawfully upon said premises and upon said shipping room floor for an entrance or passageway of some other nature; that there was no gate or other guard at said entrance and immediately around and enclosing said shaft but that such gate or guard, when in place was about six feet distant from said shaft and so constructed as to be misleading as to its nature and purposes and as to the nature and purposes of said entrance. Plaintiff further states that the approach to said shaft by way of said entrance was dimly and insufficiently lighted and that said gate or guard was of such nature or character that it could easily he opened ox removed from said entrance and was calculated to deceive persons as to the purpose for which it was intended and as to the place at which it was located; that on said shipping’ room floor and near said entrance the plaintiff maintained in said premises a room for the storage and sale of fruits and that such room was at times visited by persons desiring to purchase fruits from the defendant, and that the entrance to such room — located near said entrance to said-shaft —was of such a nature that persons not entirely familiar with said premises might easily and readily mistake one for the other; that said entrance or passageway from said shipping room floor to said shaft was maintained by defendant in a dimly and insufficiently light condition. Plaintiff further states that this unsafe condition of said premises existed for some time prior to September 14, 1904, and was well known to defendant, or by the exercise of ordinary care and diligence could have been known to it.
“Plaintiff further'states that on. the 14th day of September, 1904, and within six months next before the filing of the original petition in this cause of action, said Thomas Menteer was on the premises aforesaid as a customer of defendant, and that said defendant maintained said premises, and that portion thereof at and near said entrance or passageway and on said shipping room floor, as a place for the use and accommodation of its customers, and that said Thomas Menteer, while on said premises at and near said entrance or passageway and on said shipping room floor as a customer — where as such he had a right to be — ■ and while in the exercise of ordinary care, entered said entrance or passageway leading to said shaft without knowing its true nature and without any warning to him of the nature thereof and by reason of the fact that said entrance or passageway was dimly and insufficiently lighted, as aforesaid, and by reason also of the fact that said shaft had been negligently and carelessly left in an open and unguarded condition, as hereinbefore described, said Menteer fell into said shaft and sustained such injuries as to cause his death as a result thereof.”

The facts were that about twelve o’clock noon, September 14, 1904, the body of Thomas Menteer was found at the bottom of an elevator shaft in the building occupied by defendant at 900 North Third street, in the city of St. Louis. The neck was broken and there was a cut over one eye. No one was aware of Menteer’s presence on the premises until the body was discovered.

Menteer was a merchant and conducted a store at Fredericktown, Missouri. He was about forty-five years of age, temperate in his habits and was shown to have been sober at 10 a. m., on the day he met his death. For some time he had been a customer of defendant, usually ordering by mail, but had frequently visited defendant’s establishment and made purchases in person.

The building occupied by defendant extended from Third street along Franklin avenue to Collins street. It faced Third street, and on its front were several large signs giving the name and indicating the business of the occupant. This main entrance to the building, and the only entrance from the street to the sales department, was on Third street.

The shipping department floor level was about six feet below that of the sales department and the grade of Franklin avenue was such that there was an entrance from it into the shipping department, over the doors of which appeared the words ‘ ‘ shipping department” in large gilt letters, the sign being twelve feet long and eighteen inches wide. On Collins street, at the back of the building, was another entrance, a large double door, at which there was a platform from which fruits for shipment were loaded on wagons. Under the shipping department was a cellar or basement. Under the west or Third street part of the building was the “banana room,” the floor level of which was about ten feet lower than that of the sales department, and about four feet lower than that of the shipping department, the latter and the main basement being beneath the east or Collins street part of the building.

An elevator shaft, with openings on its east side into the basement and shipping room and on its west side into the banana room and sales department, ran from the basement to the top of the building.

There were three floors above the sales department in the Third street part of the building and two above the shipping room in the Collins street part.

At the entrances into the elevator shaft in the banana room, the sales department and all the upper floors, there were guards at the shaft and all were closed. There was no guard right at the shaft in the shipping department, but a passageway six or eight feet long led to the elevator entrance on this floor. To close the opening of this passageway a “sort of fence about twelve feet long” was provided, which was not easily removed. It was two and one half to three feet high and did not work on hinges, but in order to remove it it was necessary to pick it up and carry it to one side. It did not work easily and was hard to pull aside.

The evidence tended to show that no artificial light was in use at the time of the accident, and the only witness who was asked about it testified' that there was no need of artificial light in the shipping room at noon time, since there were four windows on its Franklin avenue side and the upper part of the door was of glass.

There was a small banana room on the same level with the shipping room floor, to reach which from the Franklin avenue entrance one would pass the entrance into the passageway leading to the elevator. One witness testified that he had seen customers use the Franklin avenue entrance to reach this banana room, hut very seldom. This witness, the only one who testified on the point, said that he always accompanied customers to the shipping room when he had occasion to make a sale in the banana room, hut did not know whether or not all customers were so accompanied.

There was no evidence that the gate or guard was not in place on the shipping room floor on September 14, 1904, either before or after the accident occurred and none as to whether the Franklin avenue door was open or closed. No sign or warning had been-placed at the elevator shaft on the shipping room floor. There was no evidence that customers were permitted to or did visit the shipping department unattended-when no representative of the company was there, Nor was there any evidence that deceased had ever' before been in that department at all. The elevator was used to convey freight and, so far as the evidence discloses, for no other purpose.

I. A merchant’s duty to use ordinary care to keep the premises, to which he expressly or impliedly invites customers, in such condition as to prevent injury to them (Glaser v. Rothschild, 221 Mo. l. c. 186, 187) arises out of and is coextensive both as to time and place with the invitation extended. To create an obligation of this kind the invitation must proceed from the merchant to the customer, as an individual or as one of a class or of the public, and cannot be enlarged by the customer to include parts of the premises to which the invitation does not extend. When an invitee steps clearly beyond the bounds of his invitation he then becomes a mere licensee, at most, and must take as he finds it the part of the premises he then enters.

He may complain of wanton or intentional injury or active negligence, it is said, but not that tbe place into which he goes for his own purposes and without invitation was not made safe in anticipation of his unexpected and undesired presence.

In applying these rules to the facts of this case, the trial court possessed one advantage of which we are deprived. That court had before it a.photograph of the exterior of the building occupied by defendant and what that may have disclosed as to the character of the Franklin avenue entrance does not appear in this record. This omission is not supplied by any other evidence. In addition to what appears from the testimony, the photograph may have made clear that the very structure of that entrance was such as, added to the sign above it, to constitute notice that it was neither expected nor desired that customers should enter by it. There is no evidence that Menteer had ever been in the shipping room before. The entrance was a side entrance (dimensions not given), and there is no intimation that the door was open. The reasonable inference from the testimony is that it was not. While Menteer had visited the building and made purchases he had, so far as the record discloses, theretofore entered at the usual place, the door on Third street. There is no evidence that there was among defendant’s customers any custom, known either to defendant or deceased, of using the Franklin avenue entrance. That deceased did enter the building at that place we think the evidence shows beyond doubt. Having done so, he found himself in an unfamiliar place, one the very appearance of which must have advised him it was not intended for the use of unattended customers. Where he then attempted to go and why he made his way into the passage to the elevator is purely conjectural.

It is suggested that he was attempting to find the small banana room on the level of the shipping room floor and, deceived by conditions, mistook the passageway for it. There is not a scintilla of evidence that he had ever been in this banana room and none that he so much as knew of its existence. It is neither alleged nor proved that he was endeavoring to get to the elevator itself. The petition lacks much of being clear as to just what negligence is intended to be charged and what actually caused Menteer’s death. It tiptoes around the vital fact upon which liability must be predicated, if liability there can be. Neither the pleader nor the witnesses knew what the real circumstances were and could not know. The only evidence on the subject tends to show that the barrier used to prevent entrance into the passageway to the elevator was in place. Though it be conceded that the implied invitation to deceased authorized his entrance into the shipping room, how can it be contended that, in the circumstances, he might remove or climb over the barrier at the entrance to the elevator passageway and venture into that passageway without losing his character as an invitee, whatever his purpose may have been? [Bremer v. Pleiss, 121 Wis. l. c. 65.] The elevator was not used for carrying passengers, so far as the evidence shows. It is not alleged nor is there any evidence that deceased lost his way in an effort to get from the shipping room to the sales department above. This action cannot be maintained on that theory, since an invitee may not choose unusual means of ingress not intended for his use, and which he is not invited to use, the use of which is, in fact, prohibited by a barrier placed there to exclude him, and then recover for injuries he may sustain by reason of his ignoring its warning.

This is not a case in which one has been injured by falling into an opening negligently left in or near a place where he is or where it is intended or ought to be expected he will be in his character as invitee (Glaser v. Rothschild, 221 Mo. l. c. 184; Kean v. Schoening, 103 Mo. App. l. c. 81; Welch v. McAllister, 15 Mo. App. 492; Moore v. Korte, 77 Mo. App. 500; Pauckner v. Wakem, 231 Ill. 276; Montague v. Hanson, 38 Mont. l. c. 384), nor one in which the injury resulted from the deceptive similarity of two entrances, in close proximity to each other, one of which the injured person was invited to use (Clopp v. Mear, 134 Pa. St. 203), and the other of which he entered by mistake. On the contrary, according to the evidence in this case, the facts are that deceased entered a part of the building not designed for the use of unattended customers and did so without invitation from defendant. That under these circumstances no recovery can be had for his death is well settled. [Bedell v. Berkey, 76 Mich. l. c. 439; Murray v. McLean, 57 Ill. 378; Bennett v. Butterfield, 112 Mich. 96; Lehman v. Coffee Co., 146 Wis. l. c. 218; Pelton v. Schmidt, 97 Mich. 231; Schmidt v. Bauer, 80 Cal. l. c. 568; Parker v. Publishing Co., 69 Me. l. c. 179; 1 Thompson on Neg., secs. 988, 990.]

II. It is urged that since, as it is often said, in the absence of evidence on the point it will be presumed that persons killed by the negligence of another were at the time exercising due care (Buesching v, Gaslight Co., 73 Mo. l. c. 233; Goff v. Transit Co., 199 Mo. l. c. 706; Riska v. Railroad, 180 Mo. l. c. 188; Weller v. Railroad, 164 Mo. l. c. 199; Stotler v. Railroad, 200 Mo. l. c. 146), it must be presumed that the barrier at the entrance to the passageway to the ele-' vator was not in place. This contention is based on a misconception of the nature of the presumption upon which reliance is placed. It is not a presumption of defendant’s negligence but one of deceased’s freedom from contributory negligence. It does not relieve plaintiff from the burden of proving defendant’s negligence. One presumption cannot be based upon another. [Cahill v. Railroad, 205 Mo. l. c. 404.]

Further, in no event could such a presumption be relied upon to add to and enlarge the invitation to Menteer.

III. In view of the conclusions reached, other questions discussed become of no importance and certain objections to the petition need not be considered.

The facts of this case enlist the sympathies but afford no ground for the recovery of damages. The judgment is affirmed.

Roy, C., concurs.

PEE CUEIAM. — The foregoing opinion of Blair, C., is adopted as the opinion of the court.

All the judges concur.