author: ROY, C. PER CURIAM.

text:
    THE STATE v. JASPER WEBB, Appellant.
    Division Two,
    January 6, 1914.
    1. COURTS: Jurisdiction: Concurrent: Circuit Judge Trying Criminal Case in Jackson County. See. 4221, R. S. 1909, provides that the judge of division 7 of the circuit court of Jackson county shall, upon proper notice, open and hold division 2 of the criminal court, but not until the conclusion of the case which may then be on trial before him in said circuit court; and where he has so opened the criminal division he is not deprived of jurisdiction in a criminal case because, while waiting for the parties to make their challenges to the jurors, he finished a case in the circuit court, and did some routine work of the circuit court during the trial of the criminal case, and presided as judge of the juvenile court while the jury in the criminal case were considering their verdict, being present, however, during the whole time actually spent in the trial of the criminal case.
    2. INFORMATION: Variance: Alleging Place of Wound: Head Instead of Body. The fact that the mortal wound was in the head instead of in the body was a mere matter of variance between the allegation and the proof which is cured by Sec. 5114, R. S. 1909, and by the Statute of Jeofails (R. S. 1909, sec. 5115).
    3. -: -: Automatic Pistol. The fact that the pistol with which accused inflicted the mortal wound was an automatic, and not a revolver as alleged in the information, is a matter of variance, cured by Sec. 5114, R. S. 1909, and by the Statute of Jeofails (R. S. 1909, sec. 5115).
    4. JURIES; Prejudice: Appeal. It is the duty of the court to see that a conviction shall not stand which is the result of prejudice on the part of the jury.
    5. -: -: Offer of Prejudicial Evidence. The mere offer of prejudicial evidence which is excluded on objection, is not reversible error.
    6. REMARKS OF COUNSEL: Murder: Death Penalty: Repeatedly Offering Improper Evidence. In a prosecution for first degree murder, by shooting, to which there was a plea of self-defense, the prosecutor on cross-examination asked defendant about cutting another person at another time, an objection was sustained and the court said, “No defense for such a question.” Prosecutor also asked another witness, “Don’t you know he (defendant) had trouble with countless men down there?” and an objection was sustained to that question. After defendant’s evidence was closed the State brought about eighty-men into the court room as witnesses in rebuttal. After six of them had testified as to defendant’s bad reputation, the court, on objection, declined to hear any more witnesses on that point and the others were not put on the stand. In his argument prosecutor said, “We brought them here by the score and put them on to tell you what kind of man this man, was, and we put them on until they stopped us.” On objection the remark was withdrawn. Again, the prosecutor in his argument spoke of defendant’s wife having fled from him because he carried a revolver, when there was no evidence to that effect, and upon objection the remark was withdrawn and the jury told not to consider it. Also, in closing, he expressed his solemn belief in defendant’s guilt and asked them to place upon him the burden of his conviction. On objection, he withdrew that statement too, and the jury were instructed not to consider it. The verdict of the jury assessed the death penalty. Held, reversed and remanded for misconduct of counsel prejudicial to defendant.
    Appeal from Jackson Criminal Court. — Hon. E. E. Porterfield, Judge.
    Beversed and remanded.

      Boyle & Hoioell and Joseph S. BrooTcs for appellant.
    (1) (a) The criminal court of Jackson county, division 2, and the circuit court of Jackson county, division 7, are wholly separate and distinct courts, each having its own separate and distinct organization, officers and record. The jurisdiction of the two courts is entirely different. Ins. Co. v. Shattuck, 159 111. 616, 57 111. App. 382; State ex rel. v. Fort, 210 Mo. 512. (h) Courts are political entities established under the law for governmental purposes, and in contemplation of law, have a separate existence from the judges who preside over them, and while the court continues open, the judge is part of the court, and cannot leave that court and engage in judicial duties in another court of which' he is ex-officio judge. Ins. Co. v. Shattuck, 159 111. 610’. (c) The temporary ■ relinquishment of control of the court wherein a cause for felony is on trial, and engaging’ in other official or judicial duties, by the judge, is such an act as to disorganize the court so far as that ease is concerned, (d) The absence of the judge from the court, engaged in other judicial .duties for. three days in the trial of a criminal prosecution for murder in the first degree, is error and fatal to a conviction, and especially so, where the judge is engaged in trying a cause m another separate and distinct court of which he is also the judge. Meredith v. People, 84 111. 479; State v. Benerman, 59 Kan. 586. (e) The judge is an essential part of the court, and his absence in another ■court as judge of that court destroys for the time being the existence of the tribunal he had vacated. Turbeville v. State, '56 Miss. 793; People v. Eckert, 16 Cal. 111. (f) When the judge of division two of the criminal court resumed the trial of the case of Lombardo v. Insurance Company in the circuit court, there no longer remained a judge of the tribunal in which the prisoner was being tried. He abdicated his functions as judge of the criminal court when he resumed the trial of the unfinished cause in the circuit court. Ins. Co. v. Shattuck, 159 111. 610’; Horne v. Rodgers, 49 L. R. A. 180; Smith v. Sherwood, 95 Wis. 588; Meredith v. People, 84 111. 479; O ’Brien v. People, 17 Colo. 561; Shular v. State, 105 Ind. 289; Ellerbee v. State, 41 L. R. A. (Miss.) 569; State v. Smith, 49 Conn. 378. (g) The judge of division 7 of the circuit court during the trial of the case at bar also opened the juvenile court during the trial of the case at bar, and tried divers causes in that court. By so doing he abandoned his functions as judge of the criminal court, the juvenile court and the criminal court being separate and distinct courts. Cases cited supra, (h) A court once regularly convened continues open till actually adjourned. People v. Central Bank, 55 Barb. 412; Labodie v. Dean, 47 Tex. 90. (i)' Other cases covering the point are: Ex parte Williams, 69 Ark. 457; Batten v. State, 80 Ind. 394; G-rable v. State, 2 Green (Miss.) 559; In re Millington, 24 Kan. 214; Tippy v. State, 35 Neb. 368 ; McNeill v. McDuffie, 119 N. C. 336; Wilson v. State, 37 Tex. Cr. 373; Thompson v. People, 144 111. 378. (j) In criminal prosecutions for felonies consent to the absence of the judge cannot be given, and if given, it will not be binding upon the accused and omission to object at the time will not prejudice or affect his right to raise the point even on appeal. State v. Claulias, 1 Mo. App. 551; Brownlee v. Hewitt, 1 Mo. App. 360; Ellerbee v. State, 41 L. R. A. 373. (2) (a) It was highly reprehensible for the State’s attorney in his closing argument to the jury to state that he believed the defendant was guilty of murder. The personal belief of the prosecutor is not a ground for conviction. State v. Hess, 240 Mo. 160; State v. Baker, 246 Mo. 376. (b) The language of the assistant prosecuting attorney to the effect that the jury saw the people who came to court and told the jury what they thought about him down there, and also in telling the jury that the kind of man who kills is the man whose wife flees from him on account of his having a-revolver in his possession, was gross misconduct on the part of the counsel for the State. State v. Fisher, 124 Mo. 464; State v. Jackson, 95 Mo. 623; State v. Bobbst, 131 Mo. 338; State v. Ulrich, 110 Mo. 350; State v. Furgerson, 152 Mo. 99. (c) The court erred in refusing to grant defendant a new trial on account of misconduct of counsel for the State in the argument of the cause to the jury. (3) The court erred in refusing to discharge the jury on motion of defendant after the State had caused nearly one hundred persons to be brought into the court and arrayed before the court and jury to be sworn as witnesses in rebuttal. The affidavits of jurors that they were influenced' by this array of persons as if for witnesses, is competent on motion for new trial.

      John T. Barker, Attorney-General, and Ernest A. Green, Assistant Attorney-General, for the State.
    (1) In Chafee & Co. v. Rainey, 21 S. C. 11, it was held that a judge may render a decree in a cause heard before him in one circuit after he has entered upon the duties of another term in another circuit. Oliver v. Town, 24 Wis. 512; Christie v. Whitten, 69 Ga. 765 ; State v. Pope, 1101 Mo. App. 520; Smurr v. State, 105 Ind. 125; Railroad v. Power, 119 Ind. 269; Wadham v. Hotchkiss', 80 111. 437; Cahill v. People, 106 111. 621; Bank v. Parsons, 45 W. Ya. 688. In the case In re Dosett, 2 Okla. 369, substantially the same point was raised on habeas corpus by one convicted of murder as in the ease at bar. However, the Supreme Court of Oklahoma held that notwithstanding the Payne county court was theoretically in session during the same period that the petitioner was tried for murder, in Logan county, yet such session of court was not such as the law contemplates in the observance of the rule that two courts cannot be in session at the same time. State v. Montgomery, 8 Kan. 358. A circuit judge has an absolute authority to hold circuits in any part of the State, and it is not an objection that circuits both on the law and equity side are held at the same time in the same circuit. Childs v. Bank, 7 Cow. (N. Y.) 513; Bank v. Collins, 76 Ky. 138; Greene v. People, 182 111. 278; Naffzioger v. Reed, 98 Mo. 87; State v. Wear, 145 Mo. 203; State v. Baker, 246 Mo. 357. The record shows Judge Porterfield to have been personally-present and presiding in división two of the criminal court of Jackson county during each and every step taken in the trial of this case. Therefore there is no merit whatever in appellant’s assignment of error in that regard, and the cases cited thereunder are not in point, as all of them are eases wherein the presiding judge had temporarily vacated the bench and was not present during some of the proceedings. That is not this case. State v. Gardner, 33 Ore. 149. The minor discrepancies in the record referred to in appellant’s brief have all been rectified by a stipulation of the parties filed herein. The record as thus amended by stipulation shows the manner by which this cause was transferred to division two of the criminal court of Jackson county, and it also shows as thus amended that Judge Porterfield was personally present during all steps taken in the trial of this cause. (2) Complaint is made in the appellant’s brief as to certain, remarks made by the prosecuting officers in their ar-' guments to the jury. In each instance the remarks objected to were withdrawn by the prosecuting attorney. Furthermore, the court reprimanded counsel, and then instructed the jury to disregard the remark of counsel. There was no request made by the defendant ’s counsel in any instance for a further reprimand of the prosecuting attorneys, nor was any exception taken by defendant’s counsel to the failure of the court to rebuke the prosecuting attorney. In State v. Chenault, 212 Mo. 137, this court, speaking through Burgess, J., said: “This point must fail the defendant, as the record does not show that defendant either asked the court to rebuke the prosecuting attorney for any improper remarks made by him, or excepted to the court’s action in. failing to do so. [Champagne v. Harney, 189 Mo. 709; State v. Valle, 196 Mo. 29; Estes v. Railroad, 111 Mo. App. 1; State v. McCarver, 194 Mo. 717.]” State v. Valle, 196 Mo. 29; State v. McCarver, 194 Mo. 717; Champagne v. Harney, 189 Mo. 709. From the-above cited decisions it is apparent that the defendant has not properly preserved this point and therefore the same is not before this court for review. Even were this point properly before this court, we do not believe that reversible error was committed in any of the remarks made by the prosecuting officers. Interfering with counsel in his argument is discretionary with the trial court, and the appellate court will not réview such discretion unless it appears that the rights of the prisoner were actually prejudiced. State v. Hamilton, 55 Mo. 520; State v. Hibler, 149 Mo. 484; State v. Allen, 45 W. Ya. 65; Inman v. State, 72 Ga. 269; Combs v. State, 75 Ind. 215; Ford v. State, 34 Ark. 649; State v. Turner, 36 S. C. 534. Courts are loath to reverse judgments on account of improper remarks of attorneys — especially as in this case, where the proof is clear, because in' such cases a verdict of guilty would have been returned regardless of the improper remarks. State v. Dietz; 235 Mo. 332; State v. Harvey, 214 Mo. 403; State v. Church, 199 Mo. 605; State v. Hibler, 149 Mo. 478; State v. Summar, 143 Mo. 220; State v. Dusenberg, 112 Mo. 277; Sec. 5115, R. S. 1909; State v. Emory, 79 Mo. 463. As a general rule, the withdrawal of the objectionable remarks of the prosecuting attorney, either by himself or by the court, or a direction to disregard them, is deemed to have removed the prejudice and cured the error. State v. Gartrell, 171 Mo. 489; State v. McMullin, 170 Mo. 608; State v. Wright, 141 Mo. 333; State v. Hack, 118 Mo. 92; State v. Gibbs, 10 Mont. 213; Dunlap v. United States, 165 U. S. 486; People v. Benham, 160 N. Y. 402.. The jurors in this case heard the objection of appellant to the remarks made. They heard the instant reproof of the court, followed by the withdrawal of the remarks by the prosecuting attorney. Such action surely eradicated any wrong impression that could have been given. Even if this point was subject to review, as it is not, we do not deem it of any merit.
   ROY, C.

The information in this case is for murder in the first degree, and charges the defendant with having shot and killed Archie Whitwell on October 11, 1911. It is alleged that the weapon was a revolving pistol, and that a mortal wound was inflicted upon the body of said 'Whitwell. The jury convicted defendant and fixed his punishment at death. The defendant at the time of the hilling was about thirty-one years .of age, married and had three children, and owned a small farm on which he lived near O'ak Grove. The deceased was a young man about twenty-one years of age, of slender build and taller than the defendant. He had lived in the same neighborhood about eight or ten years.

John Webb, defendant’s father, owned considerable land adjoining the farm of defendant, but had retired from the farm, leasing a portion of it to another son, Sam Webb, and a portion to Mr. James B. Snider. Sam Russell owned a farm adjoining the farms of defendant and his father. A small creek ran through Russell’s land, cutting off a small part next to the Webb land. Russell had a bridge. across the creek for his own convenience. Sometime in October, 1910, Jesse Land and John Russell, a son of Sam, were husking corn in the Russell field beyond the bridge from the Webb land. Archie Whitwell with a shotgun came to them from the direction of the Webb land, but not from the direction of the bridge. He told them he had been hunting over on John Webb’s land, and that defendant had ordered him off, and that he had told defendant to come down to the bridge and settle it; then looking up, he said “there he is now,” and started towards the bridge with his gun. Defendant was then at or near the bridge. After Whitwell had gone about twenty yards, and when he was about seventy yards from defendant, the defendant shot at Whitwell with the gun. Whitwell said, “You little son-of-a-bitch, shoot a man.” Defendant walked away and Whitwell went back to where the men were at work. One of them said to him, “Why didn’t you shoot him,” and he answered, “I don’t want to' shoot anybody.” A shot had struck Whitwell in the hand and another in his knee. Defendant, immediately after the shooting, went to Independence, where he met Mr. Robinson, a deputy sheriff, and told him that he was in trouble, that he had told a boy who was hunting to keep off his place, and that the boy had teased him, and that on that day he had caught the boy on his place and had been teased by him and had shot him, but said he didn’t know how much he was hurt. Robinson advised him to go back home and not consult a lawyer unless he should be arrested, and he did so.

About the 30th of September, 4911, there was a horse show in Oak Grove. The defendant and Whit-well met there. One of them abused the other and threatened to “get him yet.” The State’s witnesses testified that the defendant was the wrongdoer and that Whitwell told him that he didn’t want to have any trouble with him. The defendant’s witnesses testified that Whitwell was the aggressor, and that defendant told him that he didn’t want to have any trouble with him.

On Wednesday, the llth of October, thereafter, the defendant was in search of a heifer that had strayed away. He engaged Mr. James Snyder to help him get her. He went to his home and got a different horse from the one he had been riding and put harness on it and procured a rope. He rode the horse thus harnessed, in company with Mr. Snyder, to the lot of his brother, Sam Webb, where the heifer was. He stated that his purpose was to rope the heifer and tie her to the harness and thus lead her home. The animal jumped over the gate and escaped into a neighbor’s pasture. Defendant and Snyder then went to see about buying some hogs. Mr. Snyder testified •that the defendant .said when the heifer escaped that he would “beef her” on the following Saturday. The defendant started home and when he got within about a hundred yards of his home, at a point where the road was bordered with low brush and of irregular windings and somewhat hilly, he met Whitwell and Claude Elliott, a second cousin of Whitwell. They were about thirty yards apart when they became aware of each other’s presence. All were on horseback.

Elliott testified that just as they saw the defendant, Whitwell’s horse went quickly to the front a few feet and stopped. The defendant pulled off his right glove, and threw it on the side of the road, got off his horse, made a few steps forward, drew his gun' and said, “Grod damn you, I will fix you right here.” He fired one shot. Whitwell said, “Oh, don’t do that, man, what do you mean?” Defendant then walked a few steps and shot again. Whitwell fell from his horse, and the defendant came up towards where he was lying in the road, and fired three more shots at a distance of about seven feet, and then looked at the witness and said: “You see that, don’t you.” Defendant then went to his house, and after a few minutes started on his harnessed horse towards Independence. After going a short distance, he left his horse with Mr. Hill, and proceeded on Mr. Hill’s horse.

The defendant used an automatic pistol. Immediately afterwards, a shell was picked up about twenty-six feet from where Whitwell’s body had lain, and another at a distance of about twenty feet. Other shells were picked up in close proximity to where the body lay. One bullet was dug out of the ground about a foot from the pool of blood indicating where Whit-well’s head was lying; it had gone about three inches deep almost perpendicularly. Another bullet was found lying where the body lay. There was a wound in the right hand, one in the right arm, one in the groin. There was a bullet hole just behind the top of the ear and one on the opposite side of the head, about an inch and a half higher up. The doctor who examined him said that the wound in the head was a mortal one, and that he did not examine the one in the groin. A pocket knife was found shut in Whit-well’s pocket, but he had no other weapon of any kind.

On his way to Independence, the defendant was met by Mr. Montgomery, a deputy marshal of Jackson county, and was placed under arrest. The officer testified that, when asked why he had shot deceased, defendant said that it was over an old grudge. John Gregg testified that he had a conversation with .defendant in the jail in which witness said, “What was the trouble with you and Archie? I thought that was all over.” To which defendant answered, “No, this would have come up at the Oak Grove horse show if it hadn’t been for causing an excitement.”

The defendant testified that for several years, by direction of his father, he had posted his father’s lands against hunters, and had also posted his own. He had a large fish pond or lake in the valley between his house and creek, frequented at times by ducks; that in the spring of 1910 he found Whitwell hunting on the Webb land and called his attention to the fact that the land was posted and requested him to not hunt on the land; that Whitwell said to him, “You damned son-of-a-bitch, if you will get down off of that horse I will whip hell out of you.” That at the time of the first shooting in October, 1910', he saw Whitwell slipping in to shoot ducks on the lake; that the ducks flew up and went to the creek or slough. Whitwell got to the slough ahead of him and shot a duck and crossed over the slough and over the creek, placing the creek between them. That he passed down the creek and called .across to Whitwell, saying, “1 see you have been here hunting on my land again, you oughtn’t to do that,” and Whitwell answered, “Well, by God, I gave you a damned good cussing last spring and you didn’t do anything; you son-of-a-bitch, come on down to the bridge here and we will fight it out,” and defendant said “All right.” Defendant had furtlier to go around to the bridge than Whitwell had; that when Whitwell got within about sixty yards, defendant said to him, “Lay your gun down,” to which Whitwell answered, “Not by a damn sight,” and raised his gun up, and the defendant then shot him and then turned around and went home. He testified that in the spring of 1911, he met Whitwell in the road, and concerning that meeting he testified as follows: “I didn’t hardly recognize who it was until I drove up to him, I was not thinking about him, and when I got up close to him he stepped right out in front of my horse and. he says, ‘I reckon by God we will settle that shot.’ I says, ‘Archie, I don’t want any trouble with you.’ 'He says, ‘Hell you don’t.’ I says, ‘No, I don’t.’ I says, ‘I am a married man and got a wife and three little children and I don’t want to be fussing around. I don’t bother anybody and I don’t want you to impose on me and I want you to let me alone.’ Finally then he stepped out of the way in front of the horse and I drove on by.” As to the incident at the horse show, as follows: “He says, ‘Yon damned son-of-a-bitch, come around behind the store here, and we will settle this;’ and I says, ‘No, I don’t want any trouble with you.’ And he says, ‘Well, you damned cowardly bastard, for two cents I would ram your head through that glass.’ And Howell says, ‘Why don’t you come on and get him on the road some time.’ He says, ‘Well, damn him, I can’t get him out of his buggy.’ ”

He testified that his purpose in having the pistol on the day of the killing was to shoot the heifer if he could not catch her and drag her home. His account of the tragedy was as follows: “I got about thirty yards of them and then when I looked up I saw it was Whitwell and Elliott—

“Q. (Interrupting) Who?
“A. Whitwell and Elliott, and just as quick as I saw who it was and kinda threw my leg back over the horse, I noticed Whitwell, he rushed his horse up a ways and then he got off, jumped off, and as he got off he says, ‘Now, God damn you, I will fix you.’ He says, ‘You son-of-a-hitch, I will kill you right here,’ and when I got off he made a-rush at me and when I saw him get off I jumped off of my horse and as I jumped off I drew this glove off (indicating) and grabbed my gun like that (indicating). When I hit the ground I never moved out of my tracks hut stood right there and when he started towards me I shot him.
“Q. Why did you shoot him? A. Because I was afraid he would kill me.”

Defendant’s wife testified that she saw the encounter and in substance confirmed defendant’s statement of it. On cross-examination she testified as to some trouble between her and her husband, which was afterwards stricken out by the court. There was no evidence that she fled at any time from the defendant.

On cross-examination of defendant, the following occurred:

“Q. Is that the reason why you never had any trouble with him or any fight, was because you didn’t want trouble with anybody? A. Yes, sir.
“Q. Why did you have that idea in mind and that reason, or did you have that idea that you didn’t want any trouble with anybody, in mind when you cut Arthur Pigg?
“Mr. Boyle: I absolutely object to that — A. (Interrupting) Do you think I will stand up and let a man heat me in the face and not cut him?
“Mr. Boyle: I want to object to that and ask your Honor to instruct the jury that that was improper cr o s s-examination.
“Mr. Jacobs: Just a moment about that matter.
“Mr. Boyle: If we are going to have a discussion, let’s have it fairly.
“Mr. Jacobs: Just a moment.
“The Court: The question is altogether thoroughly improper. No defense for such a question as that. The question will he, the objection to the question will be sustained and the jury instructed that the question is highly improper, highly improper.”

■ Ben Prock, who married a sister of defendant’s wife, testified for defendant, and on his cross-examination, the following occurred:

“Q. Now, don’t you know that your brother-in-law was not frightened at Archie Whitwell? A. No, sir,-1 don’t know it.
“Q. Don’t you know he had trouble with countless men down there, and that— Mr. Boyle (interrupting) : I object to that, and I say it is error to indicate a thing of that kind before the jury, and I object to it, and I ask your Honor to instruct the jury that this is improper conduct.
“The Court: I will sustain the objection.”

After the defendant’s evidence was closed, counsel for the State caused eighty or more witnesses from the vicinity of Oak Grove to be called into the court room and sworn as witnesses in rebuttal. About six of them testified to the defendant’s bad reputation as to morals. Other witnesses were offered by the State on the same point, and on objection of the defendant, the court ruled that no. more would be heard. Thereupon, counsel for the defendant requested the court to discharge the jury because such a large array of witnesses had been brought into the court room to prejudice the mind of the jury. Counsel for the State, knowing it would not be possible to use any considerable number of them, the following occurred:

“Mr. Jacobs: Now, with reference to that, it comes at a queer time. There was no objection made at the time, and for the further reason that the State evidenced its willingness to use all the witnesses it had but was stopped by objection of the defendant from using any moré.
“Mr. Boyle: Will your Honor rule on my objection. The reason I didn’t make this motion at the time the great crowd of people were brought in and. sworn in the presence of the jury was because I could not at that time properly have made it, because the answer would have been I could not anticipate what the State would use these witnesses for.”
“The Court: The witnesses were brought in at that time to be put in the witness room and were sworn. The court is not aware of any impropriety in the matter, and the motion will be overruled.
“To which ruling and action of the court the defendant then and there at the time duly excepted and still excepts.
“Mr. Boyle: I now ask your Honor to instruct the jury at this time, or advise the jury at this time, that the appearance of this great crowd of people and witnesses should not in any way influence them in this case.
“Mr. Jacobs: The State objects to anything of that kind because that is founded upon an impropriety and the court has said there was no impropriety.
“The Court: The court has no right to give such instruction verbally and the court will consider such written instruction if it is offered.”

During Mr. Curtin’s argument on behalf of the State, the following occurred :

“Now note the difference between these two men, note the difference between these two men,- note how they are regarded by the people in the community in which they lived; note the people that took the stand and told you that this defendant was a man who was not worthy of belief; note the men who came in here to tell you that you could not trust or believe this man because his reputation for morality was bad. And I want to tell you, gentlemen of the jury, when you attack the morality of a man you attack him in everything that is bad, because a man'without good morals will commit any kind of crime; because a man without good morals will tell any kind of a story. You saw these people come in here and they told you what they thought about him down there. As many were put on the stand as the State could put on over the objection of this defendant. We put them on until they stopped us. We brought them down there by the score to put them on and tell you what kind of man this man was and we put them on until they stopped us.
“Mr. Boyle (interrupting): I desire to make an objection to the statement of Mr. Curtin that he brought them down there by the score to testify, as a matter that is outside of this .record and is not proper and is prejudicial.
“Mr. Curtin: I will withdraw that part of the statement, as long as the General objects to it, and I will say this, that we put them on until he stopped us. That is the difference between these two men.”

Also the following:

“The kind of a man who kills is the man who goes about armed with deadly weapons of this kind and meets his victim and then shoots. The kind of man who kills is the man whose wife flees from him on account of his having a revolver in his possession. The kind of man who kills is the man—
“Mr. Boyle: Wait a minute. I want to take an exception to the statement of Mr. Curtin to the effect that the kind of man who shoots is the kind of a man whose wife flees from him on account of a revolver in his possession. I desire to object to that statement of counsel in the presence of the jury and I—
“Mr. Curtin (interrupting): I am referring to her own testimony yesterday afternoon on the stand, when Mr. Jacobs put the question to her about this trouble with him and she says, “I don’t deny it.”
“The Court: The court withdrew it.
“Mr. Jacobs: It was not with reference to the trouble between husband and wife, but it is on the question of whether or not the defendant was in the practice of carrying a pistol, and it was an impeaching question, grounded upon her testimony that he wasn’t in that practice, and she says she didn’t deny it.
“Mr. Boyle: She didn’t say she didn’t deny it. She did not say that.
“The Court: The court withdrew from the consideration of the jury all controversy or quarrel between the defendant and his wife and if it refers to that it should be withdrawn.
“Mr. Curtin: That was whát I was referring to, and I beg your Honor’s pardon and I withdraw the statement.
“The Court: That is the instruction.
“Mr. Boyle: I want to note my exception to the language of counsel.
“The Court: "What?
“Mr. Boyle: I want to except to the statement of Mr. Curtin when he made this statement before the jury; I want to make an exception to the statement of Mr. Jacobs when he -says she admitted it on the stand; and I want to except to this thing and note it in 'the record, because you can’t put poison in and take it out that way; I simply want to save my exceptions.
“The Court: Mr. Curtin has withdrawn it and it is not for the consideration of the jury under the instructions the court read you, so that you may proceed.”

In the closing of Mr. Jacob’s, argument for the State, the following occurred:

“I want you to place the burden of it upon me when I ask you to convict this man and give him a sentence that will measure with the crime he has committed, for I say to you now, as I believe in the hereafter and as I reverence the Almighty God, I say to you now that I believe this man is guilty of cold blooded, premeditated murder, and so it is but one punishment, but one punishment that will measure the crime lie has committed,’ and place the responsibility for that punishment upon me, I stand ready now to bear it in the interest and in the right and in the name of justice and in the name of protection to the people of my country and of my city. Gentlemen, in considering this case—
“Mr. Boyle (interrupting): Pardon me, I thought you were about finished. I hate to interrupt you. I want to' save an exception to the statement of the prosecutor that he believes the defendant guilty, and that the jury can place the responsibility of their' action upon his shoulders, as being an improper statement and one that is improper to make. I simply want to save my exception to the remark and ask your Hon- or to instruct the jury that that— , .
“Mr. Jacobs (interrupting): I withdraw the statement.
“Mr. Boyle: It is not a matter of argument but an appeal to the feelings and passion of the jury on a matter not evidentiary, and upon which he has no right to so appeal. I make my exception.
. “The Court: He withdrew the statement. The jury will not consider it. The jury are instructed not to consider the remark. It’ has been withdrawn by the prosecutor.
‘ ‘ Mr. Boyle: I save my exception.

On the first day of the April term, 1912, of the criminal court of Jackson county, Judge Latshaw of division one of that court filed a notice in writing to Judge Porterfield of division two of said court to open said division two, in compliance with section 2, p. 210, Laws 1907. On May 20,1912, a change of venue was granted in this cause to division two of the court. The trial began on Monday the 27th of May and ended on Saturday, June 1. Judge Porterfield is the regular judge of division seven of the circuit court of Jackson county. While waiting for the parties to make their challenges of the jurors, Judge P'orterfield finished the trial of a civil case in division seven of the circuit court, and it appears that at other times during' the week of the trial he did some routine work in division seven, and presided in the juvenile court while the jury were considering their verdict. He was present in the trial of this case during the whole time actually spent in such trial.

I. In Samuels v. State, 3 Mo. 68, the trial was unfinished on Saturday. The following ]\/[0Ilc[ay wag p[ae day for the beginning of the Howard Circuit Court in the same circuit with Boone county where the trial occurred. The Boone Circuit Court was adjourned until the following Monday and a special term of that court was ordered for that day and the trial was finished accordingly. Objection was made to the validity of the conviction on the ground that the regular term provided' by law for the Howard Circuit Court supplanted the term of the Boone Circuit Court. The court said: “If then, while the court was in session in Boone, the judge thereof deemed it expedient for the dispatch of business in that court to create a special term on Monday following, to be holden there, he had the power to do so, and he might by law send his order in writing to the sheriff of Howard, to adjourn that court to any day antecedent to the next regular term, and if the judge did so, there would be no interference. But whether this was done or not, it cannot judicially appear by this record. The judge, therefore, had it in his power by the act, to push the Ploward court out of the way of holding court .in Boone on Monday. We are, therefore, of opinion that it is the duty of the judge to arrange his special terms so as to give each county a due share of judicial time. And if this discretion is abused wantonly, surely it cannot be a cause for reversing the judgments of the court: but the judge would'be answerable in person to the country.” That ease was cited and approved in Lewin v. Dille, 17 Mo. 64, and in State v. Pope, 110 Mo. App. l. c. 533.

The statute, providing for holding division two of .the criminal court by the judge of division seven of the circuit court appears to be intended for relief in case of an overcrowded docket. [R. S. 1909, sec. 4221.] It provided that the judge of division seven of the circuit court, when notified, shall, with all convenient speed, open division two of the criminal court, but not until the case then on trial before him in the circuit court is concluded. It can be easily seen that Judge Porterfield can much more efficiently dispatch his business in the several courts over which he presides if he has the freedom of action which plain common sense would dictate in the matter. There is no showing here that he was overworked, and for that reason was not in condition to properly try this case. As he was alternating his labors in the three different courts, shall we hold that his work in the circuit court destroyed his jurisdiction in the criminal court, or that the holding of the criminal court destroyed the jurisdiction of the circuit court? Under the statute the latter result would be much more plausible than the first, but we do not think that either would be the case.

II. The fact that the mortal wound was in the head instead of the body was a mere matter of variance ~between the allegation and the proof which is cured by our statute as to variance (R. S. 1909, sec. 5114) and by the Statute of Jeofails. (R. S. 1909, sec. 5115).

In State v. Anderson, 98 Mo. l. c. 472, it was said:

‘ ‘ The sufficiency of the indictment has been questioned ; it alleges that the defendant gave the deceased, with the club aforesaid, one mortal wound on the ‘head and tody.’ This repugnant allegation, it is claimed, renders the indictment fatally defective. This contention would doubtless- have prevailed at common law, but such objections are of no avail under our practice and statutory provisions. [State v. Edmundson, 64 Mo. 398; State v. Draper, 65 Mo. 335; R. S. 1879, sec. 1821.]”

The fact that the pistol was automatic, and not a revolver as alleged in the information, is a variance cured by the same statutes.

III. It is the duty of the court to see that no conviction shall stand which is the result of prejudice on the part of the jury. [State v. Prendible, 165 Mo. 329, and cases there cited.] That .rule is nothing more than a restatement of the motto on our seal of State “ 8alus populi suprema lex esto.” It makes no difference how -regular the proceedings at the trial are, if prejudice finds its way into the verdict, that verdict cannot stand. Subordinate to that rule are other rules. One is that where prejudicial evidence is offered, but is excluded on the objection of defendant, the mere offer of such ■evidence is not reversible error. .Ordinarily, if made in good faith, it is not error. "When counsel for the State in argument to the jury make improper remarks, it is the rule that defendant’s counsel must make objection thereto, and ask the court to rebuke the State’s counsel, and save an exception to a failure of the court to do so. [State v. Wana, 245 Mo. 558.] Our whole system of jurisprudence is based on the theory that counsel in a cause know the law and the legal effect of the various things done by them at the trial. Counsel for the State must have known that it was not competent on cross-examination of the defendant to ask him about his cutting Arthur Pig'g. 'True an objection to the question was sustained, and the trial court said as we say, “No defense for such a question as that.” But the astute lawyer for tie State had sunk his fangs deep in the lifeblood of the defendant — too deep for the poison to be withdrawn. The offense was multiplied when he asked of Ben Prock, “Don’t you know he had trouble, with countless men down there?” The court promptly sustained an objection. As in the first case, we presume that State’s counsel knew that the objection would be sustained. He had an object in asking the question. It was asked on the theory that the sting would remain after the objection was sustained. He cannot find, fault if we proceed on the same theory. Then came nearly a hundred men into the court room, who were sworn as witnesses for the State in rebuttal. After about six had testified to defendant’s bad reputation, on objection the court declined to hear any more witnesses on that point, and the others of that large array were not placed on the stand. It is barely possible that those witnesses were called there in good faith, but it looks like an attempt to overawe the jury. The offense grew as it proceeded, for counsel for the State in his argument told the jury to note the people who came there to tell them that defendant’s reputation was bad and said “we brought them here by the score and put them on to tell you what kind of man this man was and we put them on until they stopped us.” On objection, that remark was withdrawn (?). He not only reminded the jury of the “crowd of witnesses,” but he told them what their testimony would have been.

Again, without any testimony to support him, he alluded to the supposed fact that defendant’s wife had fled from him on account of the revolver. An objection was sustained and the remark withdrawn, and the court told the jury not to consider it.

In closing the State’s argument, counsel stated to the jury Ms solemn belief in defendant’s guilt, though such act was condemned in State v. Hess, 240 Mo. l. c. 160, and in State v. Baker, 246 Mo. l. c. 376. He even said to the jury, “I want to place the burden of it upoti me when I ask you to convict this man and give him a sentence that will measure with the crime, ’ ’ etc. On objection, he withdrew it.

Now let ns concede for present purposes that defendant was guilty of murder in the first degree. There rested upon the jury the duty of determining the punishment. That was the sole issue. His life was at stake. The killing was not done by passion nor “by lying in wait,” nor in attempt to commit, another felony. It even appears according to the State’s evidence that the beginning of the “grudge” was the anger of Whitwell at being* told not to hunt on. the Webb land, resulting in a proposition from Whitwell to meet at the bridge and settle it.

Whether what followed that incident at the bridge was sufficient to entitle the defendant to the death penalty we are not now called upon to say. We merely assert that the facts are such that we cannot say that the misconduct of counsel was nonprejudieial, and are forced to the conclusion that it was prejudicial.

In State v. Spivey, 191 Mo. l. c. 112, counsel for the State was repeatedly cautioned by the court as to his misconduct, and repeatedly offended, so that the [trial court was not derelict in its duty, and committed no error apparently, yet Judge Fox said that the only remedy in such a case is to set aside the verdict procured in that way.

Cicero, in the prosecution of Yerres, for corruption in office, discussed the subject of the duties of a prosecutor. He said, “Would you prosecute the wicked and cruel? Then beware lest in any respect you appear too hard and inhuman. ’ ’

We appreciate the fact that it is easy to criticise officials for too much zeal in the discharge of their duties. An examination of the decisions of this court will reveal how loath it is to reverse because of misconduct of counsel. Yet when the duty is plain, it must he done.

The judgment is reversed and the cause remanded.

Williams, G., concurs.

PER CURIAM.

The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All the judges concur.


source: Caselaw Access Project

author: WILLIAMS, C. PER CURIAM.

license: Public Domain

text:
    THE STATE v. HARRY J. COHEN, Appellant.
    Division Two,
    January 6, 1914.
    1. RECEIVING STOLEN PROPERTY: Accomplice.- One who hires his express wagon to two others and follows along on foot while they steal certain goods and deliver them to the defendant, is not an accomplice of defendant in the crime of knowingly receiving the stolen goods.
    2. -: -: Co-Operation. Evidence that another, and not the defendant, received stolen goods, does not tend to show that that other was an accomplice of defendant on trial for knowingly receiving the stolen goods.. It wholly fails to show that the other co-operated, as an accomplice must do, with the defendant in committing the crime charged.
    3. -: Fraudulent Intent. Fraudulent intent is not a necessary element of the crime of knowingly receiving stolen property as defined by Sec. 4554, R. S. 1909.
    4. -; Instructions: Consistent with Defendant’s Evidence. , Where defendant in a prosecution for receiving stolen goods denies that he ever had possession of the goods for any purpose, he is not entitled to an instruction that if he received the goods intending to return them to their owner he should be acquitted.
    5. --: Statements of Accused: Instructions. Where there is evidence in a criminal trial that the defendant had made statements out of court that might have a bearing on his guilt, and he denied those statements when on the stand, a proper instruction is rightly given which declares the law as to how the jury should consider any statements they should find defendant had made in relation to the crime charged.

      6. -: Appeal': Cross-Examination of State’s Witness. A defendant cannot complain of testimony brought out by him in cross-examining a witness for the State.
    7. -: -: Redirect Examination of State’s Witness. A defendant cannot complain because the court overruled his objection to an answer of a State’s witness on redirect examination, when the answer disclosed nothing different from the inference which the jury could easily have drawn from facts elicited by defendant from the same witness on cross-examination.
    8. -: Evidence: Other unenses. in a prosecution for receiving stolen goods evidence that defendant had often received stolen goods from the same man and paid a low price , for them, is admissible, without any showing of scienter on those occasions, to prove guilty knowledge.
    Appeal from St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.
    Affirmed.

      Boogher & White and Barclay, Fauntleroy, Cullen & Orthwein for appellant.
    (1) The court erred in refusing to give an instruction as to the testimony of an accomplice. The word “accomplice” means simply a participator in crime, and at common law it included all the particeps criminis, whether principals in the first or second degree, or accessories. Russ. Crimes (9 Ed.), 49; 4 Blk. Com. 27; Johnson v. State, 2 Ind. 652; Hudspeth v. State, 50 Ark. 534; Cross v. People, 47 111. 152, 95 Am. Dec. 474; State v. Roberts, 15 Ore. 187; Words and Phrases, title “Accomplice.” Schilling v. State, 106 S. W. (Tex. Cr. App.) 357; State v. Kellar, 73 Am. St. 777; Johnson v. State, 125 S. W. (Tex. Cr. App.) 18; People v. Holden, 111 N. Y. Supp. 1019. If the facts are not in dispute, whether or not a witness is an accomplice is a question for the court; but if the evidence is conflicting, the issue should be submitted to the jury with proper instructions. People v. Kraker, 72 Cal. 459, 1 Am. St. 65; State v. Schlagel, 19 Iowa, 169; State v. Carr, 28 Ore. 389; 'Williams v. State, 33 Tex. Cr. 128, 47 Am. St. 21. The jury must be reasonably convinced that a witness is an accomplice before the rules of accomplice testimony become applicable. Ross v. State, 74 Ala. 532; Childress v. State, 86 Ala. 77. If his testimony raises a strong presumption that he is an accomplice, this has been held sufficient. Pool v. State, 25’ Tex. App. 661. The jury may consider a witness an accomplice without proof beyond a reasonable doubt. Commonwealth v. Ford, 111 Mass. 394. (2) The court committed palpable error in giving instructions for the State, in that it failed to submit to the jury the question of whether the defendant, if he received the property, did so with a fraudulent intent. This is the very gravamen of the offense. State v. Sweeten, 75 Mo. App. 128; State v. Moore, 10.1 Mo. 320; State v. Campbell, 108 Mo. 611; State v. Warren, 109 Mo. 432; State v. Gibson, 111 Mo. 102; People v. Walker, 198 N. Y. 329; Jester v. Lipman, Wolfe & Co., 67 Pac. 103; Arcia v. State, 26 Tex. App. 193; Darrah v. State, 90 N. W. 1124; Goldsberry v. State, 92 N. W. 912; Pickering v. United States, 101 Pac. 123; Rapalje on Larceny and Kindred Offenses, secs. 311, 325; People v. Johnson, 1 Parker’s C. C. 564; People v. Avila, 43 Cal. 196; State v. Caveness, 78 N. C. 484; State v. St. Clair, 17 Iowa, 149; Hnrrell v. State, 5 Humph. 68; Nourse v. State, 2 Tex. App. 304; Aldrich v. People, 101 111. 16; Com. v. Leonard, 140 Mass. 473; Coin. v. Bean, 117 Mass. 141; State v. Rushing, 69 N. C. 29; Robinson v. State, 84 Ind. 452; Thomp. on Trials, sec. 2154. (3) Instruction 6 given by the court on the subject of statements made by defendant is erroneous because not supported by any testimony. However proper an instruction may be as an abstract proposition of law, it is error to give it when the facts in evidence do not justify it. State v. Elsey, 201 Mo. 561; State v. Gordon, 191 Mo. 114; Jordan v. Transit Co., 202 Mo. 418; State v. Campbell, 210 Mo. 109. The giving of instruction 6 was erroneous for the further reason that the defendant as a witness made the same statements on the stand that he made before his arrest, his defense was bottomed on the truth of these statements and the practical effect of the instruction was to discredit the testimony of the defendant as a witness in the case and advise them that the law presumed all statements favorable to defendant made by him, either in or out of court, are presumed to be untrue and was an unwarranted comment on the evidence and calculated to mislead the jury. State v. Salmon, 216 Mo. 466; State v. Shelton, 223 Mo. 118; State v. Hall, 228 Mo. 456; State v. Cannon, 232 Mo. 205. Instruction 4 is erroneous because it allows the jury to consider evidence of the receipt of other stolen goods by defendant without' requiring that body to find the defendant knew they were stolen. State v. Speritus, 191 Mo. 37. (4) The court erred in admitting testimony concerning previous and subsequent transactions. Whatever the rule may be in regard to admission of similar transactions, our insistence is that the court committed error in allowing the State to go to the extremes it went in offering testimony and in aff tempting to offer testimony in regard to previous and subsequent offenses. The issue presented by the indictment was obscured and lost sight of by the persistent and continued effort of the State to introduce evidence of similar offenses. State v. Speritus, 191 Mo. 37; Woodward v. State, 104 S. W. 11101. If the instruction heretofore complained of as omitting to require the jury to find that defendant received the goods with unlawful or criminal intent states the law correctly, then it follows necessarily that intent is immaterial in a prosecution under this statute, and wherever intent is immaterial, evidence of similar offenses is inadmissible. People v. Hopson, l.Denio, 574; People v. O’Brien, 96 Cal. 171; Chipman v. People, 24 Colo. 520; Albrecht v. State, 6 Wis. 74. ■ It is only in cases where the defendant admits the possession and claims that it was an innocent possession that testimony of distinct offenses is admissible. When the defendant raises the question as to whether he intended to commit the crime by attempting to show that he committed the act innocently and for an honest and lawful purpose, such testimony may be admitted. In the case at bar the defendant denies that he committed the act at all and the state of the case made by the prosecution tenders no issue of honest or dishonest intent. State v. Burlingame, 146 Mo. 207; Regina v. McDonnell, 5 Cox’s C. C. 153; Jackson v. People, 18 111. App. 508; People v. Lonsdale, 122 Mich. 388; Clark v. Commonwealth, 26 Ky. L. R. 1029. (5) The court erred in admitting testimony as to five hundred transactions, which were not similar to the transaction charged in the indictment, and was remote in point of time. (6) The court erred in allowing testimony of subsequent offenses to he proved in rebuttal. .

      John T. Barker, Attorney-General, and Thomas J. Biggs, Assistant Attorney-General, for the State.
    (1) It has been held that the “receiver of stolen property” was not the accomplice of the “thieves” because the crime of each is separate and distinct. The same reasoning would not permit, in law, an accessory to a theft, such as the defendant, Miller, to he an accomplice of one charged with receiving stolen property. In other words, the reverse proposition must be ture. 1 Whart&n, Crim. Ev. (10 Ed.), sec. 440; State v. Kuhlman, 152 Mo. 103; State v. Shapiro, 216 Mo. 371; State v. Richardson, 248 Mo. 569. (2)- A receiving of the goods with fraudulent intent is not necessary to the commission of the crime of “receiving stolen property.” The gravamen of the offense is “guilty knowledge” and all that is necessary is that the language of the statute he followed to have the information or indictment proper in form and substance under the decisions of this court. In this respect the offense of “receiving stolen property” differs from the offense of larceny. R. S. 1909, sec. 4454'; Kelley’s Orim. Law & Procedure (3 Ed.), sec. 683; State v. Guild, 149 Mo. 370; State v. Speritus, 191 Mo. 37; State v. Mayer, 209 Mo. 391. “The intent” with which the goods are received is not an element of the offense and a refusal to instruct as to the same is not error. 1 “Wharton, Orim. Law (10 Ed.), sec. .988; State v. Sakowski, 191 Mo. 81; State v. Rich, 245 Mo. 167; State v. Smith, 157 S. “W. 323. (3) The court did not instruct the jury as to a confession of the defendant nor was there any confession in this case. The court did instruct, in instruction 6, as to the statements made by the defendant in relation to the crime charged, after the commission of the alleged offense. The record is full of statements made by the appellant Cohen which warranted the instruction being given by the court. (4) Instruction 4 as given by the court was proper. In State v. Meyers, 82 Mo. 558, Judge Philips, after an exhaustive review of both the English and American authorities, quoted from Bottomley v. U. S. in announcing the principle of evidence which justifies the exceptions to the rule which does not permit evidence of other transactions, as follows:' “In all cases where the guilt of the party depends upon the intent, purpose or design with which the act is done or upon his guilty knowledge thereof, I understand it to be the rule that collateral facts may be examined into in which he bore a part for the purpose of establishing such guilty intent, design, purpose or knowledge.’-’ People v. Molineaux, 168 N. Y. 293. One of the essential ingredients of this offense with which the appellant is charged is guilty knowledge, and furthermore, the evidence tended to show a common plan or scheme embracing the various receipts of stolen property. There is no doubt of the probative value of the several different transactions of handling stolen property by the appellant in showing the guilty knowledge with which he received the property and the intention for which said property was received. State v. Wilson, 143 Mo. 346; State v. Hodges, 144 Mo. 53; State v. Phillips, 160 Mo. 506; State v. Spray, 174 Mo. 582; State v. Hyde, 234 Mo. 225. (5) The testimony as to the five hundred transactions wherein Lineman and Meyers had stolen goods and used Miller’s wagon, was brought out in answer to questions propounded by the appellant’s counsel to the State’s witness, Miller, on cross-examination.
   WILLIAMS, C.

The indictment charged defendant with knowingly receiving stolen property of the value of seven hundred and thirty-five dollars. Trial was had in the circuit court of the city of St. Louis, Missouri, resulting in defendant’s conviction and his punishment being assessed at two years in the penitentiary. The stolen property j so received, consisted of eight bolts of blue serge cloth and one bolt of brown serge cloth, totalling seven hundred and thirty-five yards. The evidence on the part of the State tends to show'the following facts: Defendant was in the wholesale liquor business, in the city of St. Louis, occupying a store room about twenty-five by seventy-five feet. Ernest Miller, one of -the principal witnesses for the State, testified that, on the morning of June 14, 1911, Fred Lineman and George Meyers hired his express wagon and drove it down the street, following a delivery wagon of the Manhattan Cloth Sponging & Water Proofing Company, until the latter wagon stopped near the corner of Eighth street and Washington avenue, St. Louis, Missouri. At this point, the driver of the Manhattan wagon having gone into an adjoining building, Lineman got into the Manhattan wagon and drove away — witness’s wagon, in charge of Meyers, following. The two wagons were driven some distance along the street and into an alley. The wagons proceeded np the alley, stopping at the vacant building in the rear of defendant’s place of business. Here Lineman and Meyers took the serge cloth from the Manhattan wagon and placed the cloth in the vacant building. Miller, who had followed along on the sidewalk and up to this place, took his wagon home. Defendant was not present at the vacant building. Defendant’s place of business was on the front part of the lot and was separated from the vacant building on the rear of the same lot by means of a high fence and locked gate. That same evening, about 5:30, Miller went to defendant’s place of business and saw defendant carrying the serge cloth into the back room of his wholesale liquor store and defendant and another man were engaged in unrolling a bolt of cloth and Miller there asked the defendant who was going to pay him the three dollars for the use of his wagon in hauling the goods and defendant replied, “Get away from here; the police are around here,” — defendant telling the witness he would see him “tomorrow at Ninth and Locust at one o’clock,” but that defendant never paid him the three dollars. As witness was leaving defendant’s place of business he saw Lineman and Meyers go into the same. Witness further testified that after defendant was arrested defendant requested him to leave town and not appear against him, promising to pay him money and his expenses, and he also wanted the witness to testify that a man by the name of Seltzer, and not himself, received the goods. Witness refused to leave town and later defendant asked him to be as lenient as possible and deny knowing him. On another occasion, on June 2, witness saw Lineman taking cases of stolen dry goods, ladies’ underwear, into defendant’s place of business and on the day before the serge cloth was stolen he saw Lineman deliver fourteen cases of stolen shoes (one hundred and sixty-eight pairs) to defendant and defendant paid Lineman one hundred and forty-seven dollars. for same. The shoes were stolen from the outbound platform of the Louisville & Nashville Railroad Company. Defendant told Lineman whatever he got the next day “to put them in back there,” that he (defendant) would be in Granite City all afternoon and would return about four o ’clock. At another time, during the month of May, Lineman brought the defendant ten thousand Preferencia cigars which were stolen from the platform of the "Wabash Railroad Company. Defendant bought the cigars from Lineman paying him one and one-half cents apiece for them. On May 15th, Lineman delivered three barrels of stolen whisky to defendant. The whisky was stolen from the Frisco freight depot. This witness also testified that defendant told Lineman to go out and get him a good lot of “merchandise, shoes, whisky, anything;” and that if they could get goods from the Manhattan wagon he would buy them. This was two or three days before the goods were taken from the Manhattan wagon. On cross-examination, this witness testified that he had hauled stolen goods for Lineman and Meyers about five hundred times and that defendant was the “paymaster.” And that on the morning of June 13,1911, witness, Lineman and Meyers were in defendant’s office and defendant pulled a “roll” of money out of his pocket and said: “Get busy boys, I have a lot of money today. If you get any stuff and I am not here put it in the back room and I will be back at five o’clock in the evening.” The witness admitted that he was a witness in the trial of Lineman and that at that trial he testified that he did not see where they delivered the serge cloth on the 14th day of June. On redirect examination, the witness further testified that Cohen had bought the goods which were stolen on the five hundred occasions and had shipped them away. This witness testified that he was arrested in connection with the stealing of the cloth and that he turned “State’s evidence” and the case against him was “nolle prossed.” Armen Traxler, president of the Big Four Transfer Company, testified that the president of the Manhattan Company asked him to aid in finding the stolen goods. The witness then called npon defendant and told defendant that he “probably knew who had the goods” and asked defendant to aid him in helping recover them. Defendant promised to do all he conld to help recover the goods and later defendant told Traxler that he had seen the parties that had the goods and that they would return the goods upon payment of the money which they had paid for the goods plus one hundred- dollars.' Traxler had several interviews with defendant and later went out to defendant’s house where he had a talk with defendant and defendant’s wife and left about three hundred dollars in currency on a table at defendant’s house with the understanding that defendant was to use the money in paying the man who had the goods. Defendant said that he would try to get the goods back and said that the party who had the goods had told him that they were in Chicago and that they were afraid to ship them back at that time. Later defendant told the witness that Seltzer was the party that had received the goods and that they were in the charge of a Mr. Rosenthal in Chicago. Some days elapsed and the goods were not returned and the witness saw defendant and told him that the man whose goods had been stolen demanded that his goods or the money which the witness had turned over to defendant be returned. The next day defendant’s wife returned the money to Traxler— Traxler promising to repay the money if the goods were later delivered. A few days later, witness was called by telephone and a lady’s voice said: “If you go to 2815 Gamble, you will find four cases there.” The witness did not know whose voice it was, but, upon going to the place directed by the telephone message, found the serge cloth which had been stolen. The goods were located in a shed in the rear of vacant residence premises. The cloth was then returned to the Manhattan Company, where it was identified as the cloth which had been taken from the wagon on June 14, 1911. The goods when recovered were about seventy-five yards short. A day or two later, witness Traxler paid to defendant the amount of money which he had first left with defendant less seventy-five dollars which he kept out for the shortage. Defendant objected to witness keeping out seventy-five dollars. When the witness paid defendant, he first offered defendant a check but defendant said he wanted the currency. Defendant’s wife told Traxler that a Mr. Seltzer had bought the goods from the thieves. Frank McKenna, a police officer of the city of St. Louis, testified that about noon on June 15,1911, he searched defendant’s place of business and also the vacant building on the alley, but failed to find the goods and defendant denied knowing about them. Later witness told defendant he was going to make him all the trouble he could in recovering the goods. This witness caused Traxler to offer Cohen the money to have the goods returned. The testimony on the part of the defendant tended to show the following facts: Five witnesses testified that defendant’s reputation for honesty and fair dealing was good but on cross-examination it was shown that their knowledge was limited to business transactions which they had with him and the fact that the bills which he incurred in his wholesale liquor business were promptly paid. The witnesses admitted that they did not know any of defendant’s neighbors with whom defendant associated or any of the people who were in business close to the defendant. Sarah Abramson testified that she was the bookkeeper for the defendant’s wholesale liquor business and that defendant had nothing to do with the vacant building on the alley, in the rear of his place of business. That on June 14, 1911, defendant left the city about ten a. m., returning about five p. m.; that during the day, defendant was delivering goods and taking orders in Granite City and other small towns; that she remained in the store after defendant returned until about 6:30'p. m., and that Ernest Miller never came to the store on that evening and that defendant was not in the back of the store unrolling goods on that evening; that she never saw Miller in defendant’s place of business until after defendant was indicted, after which time witness Miller came to defendant’s place of business and offered to leave town if defendant would pay him money; that she never saw Lineman or Meyers in defendant’s store; that one evening Miller’s mother came to defendant’s store while defendant was out and she told the witness that she had heard some persons trying to get her son to “put up a job” on defendant, concerning these goods, because defendant had money and would help the other parties out of their trouble. Lulu Cohen, wife of the defendant, testified that Traxler left two hundred and sixty-five dollars at defendant’s home, the money to be used for the purpose of recovering these stolen goods. Mrs. Cohen gave the money to Seltzer and Seltzer promised Mrs. Cohen that he would return the goods to Mr. Traxler. Seltzer delayed in returning the goods and Traxler demanded the return of the money and Mrs. Cohen repaid Traxler. Mrs. Cohen testified that she never went to Seltzer to get the money back when Traxler made demand for same, but that she borrowed the money, personally, and paid it back to Traxler. .She could not remember from whom she borrowed the money. After Traxler had recovered the goods he paid Mrs. Cohen one hundred and eighty-five dollars, which was the amount he had originally given her less the. sum of eighty dollars kept out for the shortgage in the goods. Harry J. Cohen, defendant, testified, in his own behalf, that on June 14, 1911, he left the store at nine o’clock a. m., and went to Granite City, Madison and Brookline for the purpose of taking orders and delivering some goods and returned to his store about five p. m., where fie remained until 6:15 p. m., and tfiat Ernest Miller was not in fiis store tfiat evening. Defendant denied ever having received any stolen goods from Lineman, Miller or Meyers or anybody else and denied telling Lineman two or three days before tfiat fie would take any stolen goods tfiat they would “put in” and tfiat fie fiad no control over, or possession of, tfie vacant building facing on tfie alley, in tfie rear.of fiis place of business, and that it was no part of tfie premises tfiat fie rented. Witness further testified tfiat fie had known Traxler about ten years and tfiat Traxler came to fiim asking, as a favor, tfiat he help recover the stolen goods. Tfiat it was reported tfiat a man by tfie name of Seltzer was handling stolen goods and Traxler asked defendant to see Seltzer about returning tfie cloth. Defendant saw Seltzer and Seltzer offered to return tfie goods upon payment of $265, and upon tfie further understanding tfiat Seltzer’s name would-not be mentioned. Defendant communicated this fact to Traxler and Traxler left tfie $265 at defendant’s home. Defendant claimed tfiat fie did not handle tfie money but tfiat fiis wife took the money to Seltzer. Defendant had several communications with Seltzer urging fiim to return tfie goods or tfie money and Seltzer promised to have tfie goods returned in a few days. Defendant admitted tfiat thirty-seven cases of cigars were taken out of fiis store by a policeman and tfiat the policeman claimed tfiat tfie cigars were stolen from the M., K. & T. R. R. Co., and defendant told tfie policeman tfiat if they were stolen goods fie did not want them. Defendant claimed tfiat fie had bought tfie cigars from a saloon keeper but did not remember tfie name or tfie amount paid, but tfiat fie never got any money back for tfie cigars. Defendant testified tfiat Lineman or Meyers were never in fiis place of business and tfiat Miller was never in his place of business until after defendant was arrested.. Defendant denied giving Miller any money or checks and further denied that he gave Miller’s wife any dress goods. Henry Seltzer testified for the State in rebuttal to the effect that neither defendant nor his wife ever gave him any money and that he never had possession of the stolen goods in question. Mrs. Ernest Miller, wife of Ernest Miller, testified that on Easter Sunday, 1911, defendant gave her ten yards of dotted swiss cloth, taking it from a closet in the rear of defendant’s store, and that she saw other cloth and goods packed and stored in defendant’s back closet. That she had seen 'Lineman in Cohen’s place of business before June 14, 1911. Frank McKenna, police officer, testified that defendant’s general reputation for honesty was bad, prior to June 14, 1911, and that prior to that date he had seen defendant with Lineman and Miller and Meyers on different occasions; that he had-seen them go into defendant’s place of business and had seen them talking with defendant on the street at different times. Defendant told the witness that he paid fifty dollars for the ten thousand Preferencia cigars. Ernest Miller further testified that he met the defendant almost daily during the four months prior to June 14,1911. Armen Trailer further testified that, at about the time he was negotiating with defendant for the return of the goods, he saw Lineman, Meyers and the defendant together talking on the street.

I. Appellant contends that witnesses Miller and Seltzer were accomplices of defendant and that the court erred in failing to instruct the jury ^at their testimony should be received with caution.

“An accomplice is a person who knowingly, voluntarily and with common intent with the principal offender unites in the commission of the crime. . . . The principal and the accomplice must co-operate in the commission of the same crime.” [1 Wharton’s Criminal Evidence (10 Ed.), sec. 440; State v. Richardson, 248 Mo. 563.]

In the case of State v. Kuhlman, 152 Mo. 100, l c. 103, the court said:

“One hearing the relation of an accomplice as defined by Dr. Wharton and approved by this court is a principal in the first degree and is liable to be charged and punished in the same manner as the principal.”

In that ease it was held that the thief was not an accomplice of the person who knowingly received the stolen goods. To the same effect is State v. Shapiro, 216 Mo. 359, l. c. 371. Applying the above test, witness Miller was not an accomplice of the defendant.

With reference to witness Seltzer, appellant, in his brief, says: “Seltzer, according to the testimony produced by the defendant was the person who received the goods and at the request of the defendant clandestinely returned them. . . . Miller says he saw Seltzer point the thieves where to take the goods.” But this evidence is not sufficient to show that Seltzer was an accomplice of Cohen’s. It only tends to prove that Seltzer and not Cohen received the stolen goods and wholly fails to show that Seltzer and Cohen “cooperated in committing the crime,” as the above announced rule requires.

II. It is contended that the court erred in failing to submit to the jury the question of whether the defendant, if he received the property, did so with a fraudulent intent.

Whatever may be the rule in other jurisdictions, controlled or influenced by statutes, in many instances unlike the Missouri statute, it is sufficient to say, concerning the above point, that the rule has become well established in this State that a fraudulent intent is not a necessary element of the crime under section 4554, Revised Statutes 1909, but that the gravamen of the crime is the receiving of stolen goods, etc., knowing the same to have been stolen, etc. [State v. Rich, 245 Mo. 162; State v. Smith, 250 Mo. 350; State v. Sakowski, 191 Mo. 635; State v. Richmond, 186 Mo. 71.]

Appellant’s brief states: “This instruction ignored the intent of the defendant entirely, and if he received the goods intending to restoré them to the rightful owner as he testified, he was, under said instruction, nevertheless, guilty.” Replying to that contention, let it be said that we do not here undertake to say that, where the evidence tends to show .that the possession was taken in good faith for the purpose of restoring same to the rightful owner, the defendant, if he so requested, would not be entitled to have the jury, in effect, instructed that if such was his purpose at the time he received the property he should be acquitted. But that question must be left for determination when the facts justify the raising of such an issue. No such defense is interposed here. The evidence on the part of the defendant denies that he ever had possession of the goods in question for any purpose.

III. Instruction 6 properly declared the law as to how the jury should consider any statement or statements, in relation to the crime charged, which the jury should find from the evidence had been ^ade by the defendant. Appellant does not criticise the form of the instruction but contends that it should not have been given because there was no evidence upon which to support it and further that the defendant upon the stand made the same statements as he did off the stand. A review of the evidence discloses that there was evidence to the effect that defendant, on the evening of the theft, in reply to witness Miller’s demand for money said, “Get away from here; the police are aronnd here; ’ ’ and further that defendant offered to pay witness to leave and not appear against him and requested the witness to deny that witness knew the defendant. All of these statements were denied by defendant upon the stand and therefore appellant is in error as to both of said contentions.

IY. It is further contended that “the court erred in admitting testimony as to five hun¿red transactions, which were not similar to the transaction charged in the indictment and were remote in point of time.”

Appellant is not in a position to complain of the above evidence. The testimony concerning the five hundred transactions was first brought out by appellant’s cross-examination of the State’s witness Miller as shown by the following excerpts from the testimony.

‘Q. Will you tell me how many times you have' committed larceny? how many times you have stolen? A. With Lineman?

“Q. Yes, with Lineman first, how many times have you and Lineman stolen anything? A. I never stole, Lineman always did-the stealing.

“Q. Lineman did the stealing and you did the hauling? A. Yes, sir.

“Q. How many times did Lineman do the stealing and you do the hauling? A. About 500 times in three years.

“Q. You have hauled stolen goods 500 times with Lineman in three years? A. Yes, sir.

“Q. You knew they were stolen? A. Yes, sir.

“Q. And that was your occupation? A. No, sir.

“Q. You didn’t do much if you hauled 500 lots of stolen goods with one man; did you have another thief? A. Lineman and Meyers.

££Q. You hauled what Lineman stole 500 times and you hauled how many times what Meyers stole? A. Meyers and Lineman together.

££Q. Five hundred for both of them? A. For both, 250 for each.

£ £ Q. You have been at the business five years ? A. Three years.

££Q. You think you have pulled off, assisted in pulling off 500 jobs in three years ? A. These men did that in their line of business.

££Q. Easy that amount? A. Yes, sir.

“Q. You knew they were going to steal these goods and you were renting your wagon to them so they might get away with the stolen goods? A. Yes, sir.

“Q. You were doing that for the sum of three dollars ? • A. I would lend them my wagon for whatever they would pay me.

££Q. They were the paymasters ? A. Mr. Cohen was the paymaster.

££Q. According to your testimony they had been putting shoes and merchandise into the place for three years, how did he come to tell them to do it that day when they had been doing it for three years ? A. He had been receiving property there in the back and he says, If I am not here leave it in the back room.’

“Q. Hadn’t they always been doing it if he was not there? A. It was a password to say that.

“Q. You were hauling goods up there? A. Yes, sir.

££Q. How many of the five hundred loads did you haul up there; I want it all, I don’t want to have to examine you again? A. I could not say.”

After going into the subject on cross-examination the State’s attorney in his redirect examination asked the witness the following question:

“What became of the goods that were stolen during those five hundred different occasions that you have mentioned in answer to Mr. Cullen’s question? A. Mr. Cohen would buy them and ship them away.”

Appellant’s counsel interposed an objection which the court overruled on the ground that the cross-examination had gone into the matter. This action of the trial court did not constitute error. The answer made to the above question asked on redirect examination disclosed nothing different from the inference which the jury could easily have drawn from the facts brought out by said cross-examination.

Y. It is urged that the court erred (1) in admitting testimony of other specific acts of receiving stolen property and (2) that even if other similar transactions were admissible the court refused to instruct the jury, as requested by the 'defendant, that before they could consider the evidence for any purpose they must find that at the time defendant received the goods on each of the other occasions he did so knowing the same to have been stolen.

The evidence to which reference is here made is the evidence tending to show that defendant had received from the same man, Lineman, other stolen property, to-wit, whisky, dry goods,- shoes and cigars under similar conditions, paying a low price for same. Evidence of this character is admissible upon a charge of this kind. [State v. Smith, 250 Mo. 350, l. c. 368, and cases therein cited.]

Neither do we think it necessary that the jury should have been required to find that at the time the defendant received the goods on each of the other occasions he knew the same had been stolen. This for the reason that the evidence of other similar transactions, such as disclosed by the evidence in this case, would be admissible in a case of this kind, even though the proof fails to show that upon each of the respective occasions of receiving stolen property he received the same knowing that it had been stolen. When the evidence does show that additional fact, it no doubt would possess greater probative weight, but the evidence is not to be excluded for the reason that it fails to go thus far. [State v. Jacob, 30 S. C. 131; State v. Murphy, 84 N. C. 742; Devoto v. Commonwealth, 60 Ky. (3 Metcalfe) 417.]

While it may be said that evidence of a single transaction of defendant’s having received stolen goods would not be evidence that he received those particular goods knowing them to have been stolen, yet, when the instances, similar in character as to person from whom received, low price paid, etc., are multiplied, the combined testimony would no doubt be some evidence (at least circumstances from which it might be inferred) that the person received each delivery with guilty knowledge, and more especially so with reference to the later instances in a series of receiving stolen property. A person might innocently receive stolen property on one occasion, .yet such instances, so similar in character, could not be multiplied to any great extent and the receiver’s mind be left free from all trace of suspicion which would most likely develop into a matured guilty knowledge. Therefore, such evidence is admissible and possesses probative value in that it throws reliable light upon the kind of knowledge the defendant may have had in receiving the goods in the. instant case, the weight of such evidence to be measured by the jury after an instruction given limiting the consideration thereof to the purpose of arriving at the guilty knowledge or scienter, if any, as was done in the present case. In discussing the admissibility of evidence of similar transactions without furtlier showing* that the defendant received the same knowing them to have been stolen, Wigmore on Evidence states the rule as follows:

“The mere fact of possession would seem to be sufficient as probably leading to a warning through the reclamation of the goods; and it is not. necessary additionally to show that the receipt was accompanied by circumstances calculated in themselves to excite suspicion, or that the possession was so concealed as to show guilty knowledge. The latter features, however, are present in some of the precedents, though they do not seem to be treated as a requirement for every instance. There are therefore three possible attitudes to take as to this element: The mere fact of possession suffices; or the possession must havé been obtained under suspicious circumstances; or neither of these suffices, and former hnowing- possession is alone sufficient. The first view (i. e., mere fact of possession suffices) is that represented in most courts in this country; the second is sometimes hinted at; the third is represented by R. v. Oddy in England. . . . From the point of view, then, of the knowledge principle, it is necessary and sufficient to show (a) former receipt and possession (and, perhaps, under suspicious circumstances), (b) of goods similar as to the person bringing them, or as to their kind or otherwise.” [1 Wigmore on Evidence, sec. 324.]

It therefore follows that the court did not err in refusing to instruct on the point mentioned.

VI. Other .assignments of error made were; that the conduct of the prosecuting attorney was improper; that the cross-examination of defendant was broader than the examination in chief and that certain evidence was admitted in the State’s rebuttal that should have been admitted in chief, and that certain evidence was improperly admitted. In support .of these various other assignments of error, appellant has copied into bis brief forty pages of tbe evidence in wbicb it is claimed tbe alleged errors occur. It would serve no useful purpose to set forth tbe same bere. It is sufficient to say that we bave carefully gone over tbe same and are unable to find any error therein wbicb would justify a reversal of the case. Tbe case seems to bave been vigorously prosecuted and vigorously and ably defended; but throughout tbe case tbe learned trial court, acting within tbe exercise of a proper discretion, kept tbe progress of tbe trial within proper bounds and no rights of defendant were jeopardized or prejudiced.

Tbe judgment is affirmed.

Roy, G., concurs.

PER CURIAM.

Tbe foregoing opinion of Williams, C., is adopted as tbe opinion of tbe court. -

All tbe judges concur.