author: BROWN, C. PER CURIAM.

text:
    PETER H. MONTGOMERY v. D. W. GAHAGAN, Appellant.
    Division One,
    November 30, 1912.
    1.EJECTMENT: Judgment: Default. It was error for the trial court, in ejectment, to enter default and proceed to final judgment against the defendant, when, his general denial still standing as 'a pleading in the case, he refused to plead further after a demurrer to his plea in confession and avoidance was sustained.
    2. -: Appeal: Record. Where plaintiff’s motion to strike out a plea of confession and avoidance in defendant’s answer was overruled, hut after change of venue his demurrer to the same plea was sustained, defendant’s contention that the sufficiency of his plea was res adjudicata after the overruling of the motion to strike out, cannot be considered on appeal, unless, by moving to strike out the demurrer or by some other appropriate course upon the record, he apprised the trial court of his intention and gave it an opportunity to review its decision.
    3. -: Improvements: Lien. Where a purchaser of land is sued in ejectment by the vendor, because of failure to pay the stipulated installments of the purchase price, he cannot have the value of improvements, made under a collateral contract, charged as a lien on the land in the same action, but must set them off against the damages for rents and profits claimed by the vendor.
    4.-: -: Damages: Rents and Profits. Where the vendor of land elected to forfeit the contract of sale for nonpayment of installments of the purchase price, and to keep, under a provision of the contract, the payments already made in full satisfaction of damages for the breach, and sued the vendee in ejectment, the defendant had the right to offset the value of his improvements on the land against the, plaintiff’s claim for damages on account of mesne profits and a judgment which fails to allow such offset must be reversed, upon the facts of this case, even though the damages allowed were merely nominal.
    Appeal from Greene Circuit Court. — Son. James T. Neville, Judge.
    REVERSED AND REMANDED.

      A. D. Bennett and A. J. Clarity for appellant.
    (1) The circuit court of Greene county erred in passing upon the demurrer filed in that court so long as the order of the Newton Circuit Court, overruling the motion to strike out parts of the answer, remained unreversed, inasmuch as the points raised in the demurrer were identical with those raised by the motion to strike out, and had passed in rem adjudicatam. Baisley v. Baisley, 113 Mo. 545; Kisinger v. Council Bluffs, 73 Iowa, 171; Rogers v. Holing, 46 "Wis. 361; Sanderson v. Dailey, 83 N. C. 67; McDowell v. Railroad, 14 S. W. 338; Wells on Res Adjudicata & Stare Decisis (1878 Ed.), Secs. 2 and 6; Hermann on Estop-pel and Res Judicata, Sec. 247. (2) An exception to ruling on a demurrer neither helps nor hurts as a demurrer will keep without an exception. Spears v. Bond, 79 Mo. 467; Hannah v. Hannah, 109 Mo. 236; Thorp v. Miller, 137 (Mo. 238; McKenzie v. Donnell, 151 Mo. 431; Newton v. Newton, 162 Mo. 173; County v. Morgan, 163 Mo. 661; Mallinckrodt v. Memnich, 169 Mo. 388; Dysart v. Crow, 170 Mo. 275; Meissner v. Equip. Co., 211 Mo. 112; State v. Christopher, 212 Mo. 244; Houtz v. Heilman, 228 Mo. 655- (3) The circuit court of Greene county erred in sustaining the demurrer of plaintiff to the answer of the defendant, as the answer was properly drawn and the facts were properly pleaded. Springer v. Kleinsorge, 83 Mo. 152; Cohn v. Lehman, 93 Mo. 574; Ledbetter v. Ledbetter, 88 Mo. 60; Crowder v. Searcy, 103 Mo. 117; R. S. 1909, Secs. 1806, 1807, 2050; St. Louis v. Lumber Co., 98 Mo. 613; Swope v. Weller, 119 Mo. 556; Sampson v. Mitchell, 125 Mo. 217; Claybrush v. McLaughlin, 106 Mo. 521; Stump v. Hornbeck, 94 Mo. 26.

      Barton J. Morrow for respondent.
    (1) Appellant having failed to file a bill of exceptions, the action of the Newton Circuit Court in granting a change of venue, as well as the matters set up in a motion to strike out, are not before this court. (2) The vendee in an executory contract, who fails to perform his part of the contract, cannot recover for improvements'placed upon the land; such recovery can only be had for the vendor’s fault; the vendee cannot set up his own default and failure as a reason for equity granting relief. Sedgwick & Worth, Trial of Title, 708; 16 Ency. Law, p. 97; Railroad v. Crawford, 68 Mo, 80; Luckett v. Williams, 37 Mo. 388; Bedford v. Burton, 106 U. S. 388 ; Toplift v. Shadwell, 74 Pac. 1120; Keister v. Cubine, 45 S. E. 285; Rose v. Perkins, 98 Mo. 258; Rainer v. Huddleston, 4 Heisk. 223; Long vl Finger, 74 N. E. 502; Young v. Pate, 3 J. J. Marsh, 101; Farham v. Davis, 32 N. H. 302. (3) Appellant having made default in his payments, respondent was entitled to possession of the property and could recover in ejectment. Gibbs v. Sullens, 48 Mo. 237; Fulkerson v. Brownlee, 69’Mo. 371; Rose v. Perkins, 98 Mo. 258; DeBarnardi v. McElroy, 110 Mo. 657. (4) Even if appellant was entitled to recover for improvements, such recovery would only go to release the amount of damages found by the court to be one cent. Dawkins v. Griffin, 195 Mo. 430.
   BROWN, C.

This is an action in ejectment, instituted January 15', 1907, in the Newton County Circuit Court, to recover a piece of ground in the city of Seneca in that county, on which a flour mill was situated.

The defendant filed an answer, in which he denied specially that plaintiff was entitled to possession of the premises, and generally denied “each and every allegation contained in said petition except what is hereinafter specially admitted.” For further answer it stated that the defendant was placed in possession of the premises under a contract executed by plaintiff to sell and convey the same to defendant, and set forth a true copy thereof. It is dated June 30, 1905, signed by the plaintiff and his wife as parties of the first part, who, by it's terms, agreed that if defendant, the party of the second part, should first make the payments and perform the covenants therein contained to be kept and performed by him, they would convey to him the premises in fee, clear of in-cumbrances, by warranty deed. The defendant was to pay the sum of $3000- in twelve semi-annual payments, due respectively on the first days of January and July of each year, beginning January 1, 1906i, the last being due July 1, 1911, without interest. It was further provided as follows: “And in case of the failure of said party of the second part to make either of the payments or perform any of the covenants on his part, hereby made and entered into, this contract shall, at the option of the parties of the first part, be forfeited and determined, and the party of the second part shall forfeit all payments made by him on this contract, and such payments shall be retained by the said parties of the first part in full satisfaction and in full liquidation of all damages by them sustained and they shall have the right to re-enter and take possession of the premises aforesaid; and it is mutually agreed by and between the parties hereto that in construing this contract time shall be an essential. ’ ’ These payments were evidenced by promissory notes, payable as stated above. The answer then proceeded to state that the premises in suit consisted of lands on which was situated a small steam flouring mill in a> crude, unfinished and dilapidated condition, erected in 1901; that it was operated for a year or more and then abandoned for about two years, and, at the time of its purchase by defendant, had so deteriorated as to be almost valueless; that its abandonment by plaintiff was brought about by financial embarrassment due to the incapacity of the mill to earn a profit without large improvements and additions to its equipment, and plaintiff consented and agreed that the improvements must be made before it could be successfully operated; that by reason of these facts plaintiff sold to defendant and put him in possession of the mill on deferred payments without interest, and that defendant would have to expend large sums of money in rebuilding and improvements and additions to said mill, and it was agreed that defendant would add a complete and finished corn milling plant, a large platform wagon scales with dump and suitable shed over the same, with corn drag and wheat conveyors from said dump, and additional elevators in the mill; “that in consideration of the improvements and additions to be made on said mill and in consideration of the very large expenditure of money by the defendant, the plaintiff sold to defendant the said milling plant and the land as described as aforesaid without the payment of any sum of money in advance by defendant to plaintiff, it being agreed and understood that said improvements and additions were absolutely necessary to put the mill in a serviceable condition; that it was agreed and understood by and between the plaintiff and defendant that said improvements and additions to be made at the cost and expense of the defendant would amply secure the plaintiff for any default in the deferred payments of the notes of the defendant as aforesaid; that it was agreed and understood by and between the plaintiff and defendant that until said mill was placed in a condition to earn a profit, by making the improvements and additions as aforesaid, it would be impossible for the defendant to pay off and discharge and extinguish his said notes or any of them; that the defendant did on being placed in possession of the premises as aforesaid by plaintiff, diligently proceed, at once, in good faith to the. building and completion of all the aforesaid improvements and additions, and many more, under the contract and agreement by and , between the plaintiff and defendant as aforesaid, at Ms own expense, and, did as rapidly as possible and practical under the circumstances, put the milling plant in perfect repair and good order for successful operation; that all of said improvements and additions were made with the full knowledge and consent and contract and agreement of the plaintiff.”

It then set out an itemized account of the money so expended between the date when defendant took possession of the mill and November 2, 1905, amounting to $1822.98, and stated that defendant had paid cash, on the notes without giving dates therefor amounting to $175, and that the mill was worth $2500 more than at the time of the purchase, and that defendant went into possession and made the said improvements by the authority of the plaintiff, and did not hold adversely to plaintiff but under and by authority from him, and that there were no other writings between them than the contract and notes mentioned. The answer asked judgment for the sum of $1997.90, the amount of the expenditure for improvements and cash paid on the notes, less any amount that might be found by the court to he due for rent, and that the sum be adjudged and declared a first lien on the real estate described in the petition, including the milling plant thereon, and that plaintiff be enjoined and restrained, “or that execution be stayed by order of record of this court until such time as the plaintiff shall have paid to the defendant the amount of his judgment and filed the receipt of the defendant therefor with the clerk of this court; that all of defendant’s notes described in the plaintiff’s articles of agreement he cancelled and for naught held and esteemed by the order and judgment of this court, and for such other and further relief as may be proper.” The plaintiff then filed his motion to strike out “the following portion of defendant’s answer, viz.: beginning with the ninth line on the fourth page of defendant’s answer and including all the portion following except the prayer, the same being that portion of defendant’s answer that attempts to charge the plaintiff with the value of improvements,” for the reason, among others, that it does not state facts sufficient to constitute a cause of action or entitle the defendant to any relief. This motion was overruled by the court and thereupon the plaintiff applied for and the court granted a change of venue transferring the case to the Greene County Circuit Court, where the plaintiff filed a demurrer to the answer, which, omitting the title, is in words and figures as follows:

“Now comes the plaintiff and demur's to the defendant’s answer excepting the general denial for the following reasons, viz.:
“1. Said answer does not state facts sufficient to constitute any cause of action against plaintiff or any defense to plaintiff’s action.
“2. Upon the allegations of defendant’s answer the plaintiff is entitled to recovery.”

The demurrer was thereupon sustained by the court, and the defendant refusing to plead further the court entered a judgment by default against him and, proceeding to hear evidence, found all the issues for plaintiff and assessed his damages at one cent and the value of the monthly rents and profits at twenty dollars per month and entered judgment for the possession of the property together with the damages-and monthly rental.

I. The sustaining of the demurrer so emasculated the answer that it contained nothing but a general denial. This constitutes a complete defense to the cause of action stated in the petition. It was, therefore, error for the court to enter default and proceed thereon to final judgment while it stood as a pleading in the case.

The defendant, however, in the part of the answer held insufficient on demurrer, had pleaded a special defense inconsistent with the general denial, in that it set np that he was in possession of the premises under the plaintiff by virtue of a contract of purchase which had already become subject to forfeiture. In avoidance of this admission he pleaded certain matters which he claims entitled him to rescind the contract and to have affirmative relief, and he now claims that as to these matters the demurrer was improperly sustained and his real defense eliminated'.

The first ground urged by defendant in support of this contention is that the same questions had been previously raised by motion to strike out substantially the-same parts of the same answer, and that the overruling of this motion constituted a final adjudication of all the questions so raised. Ordinarily this result, by which black may be made white and the crooked straight by the dictum of the court, can only proceed fro.m a final judgment. This seems to accord with both the letter and spirit of our own practice, in which all the decisions of the court made in course of a trial, are, if questioned, required to be reviewed upon the motion for a new trial, so that the court may then have an opportunity of correcting and revising its decisions. The question, however, does not seem to have been made or preserved in this record, where there is nothing to show that it was brought to the attention of the court. The defendant might have waived it, and gone directly to the merits of the controversy. If he did not desire to do this he could have made his motion to strike out the demurrer or could have taken such other course upon the record as would apprise the court of, his intention. Having failed to do so he will not be permitted to raise the question in this court.

We do not think that there is anything in this inconsistent with any expression of Judge Sherwood in Baisley v. Baisley, 113 Mo. 544, 550.

II. The contract of purchase under which the defendant was in possession, provided, as we have seen, that if he should fail to make any payments that it required, it should, at the option of the vendor, be forfeited and determined, and the payments theretofore made upon it should be retained in full satisfaction of all damages sustained by him, and that he might reenter and take possession of the premises. The exercise of this option would thus extinguish, not only the right to charge the unpaid purchase price upon the land but also his right to damages up to the time of such forfeiture and re-entry therefor. The answer pleaded, in connection with this contract, that there was a contemporaneous oral agreement that the defendant should make certain improvements, which were necessary before the mill could be operated, which, it was agreed, would increase the security of the plaintiff for the deferred payments of the purchase price, and which were therefore intended for the benefit of the plaintiff as well as of the defendant, and that the defendant made these improvements at an expenditure of $1822.98, and thereby increased the value of the property to the extent of $2500: Having done this he failed to make the payments as they became due and the plaintiff, by this suit, has exercised his election to forfeit the contract and re-enter the premises and now asserts that he is entitled to not only the liquidated damages provided in the contract, amounting to $175 paid him upon the purchase price, but also to have the improvements made in compliance with the oral agreement. This, he says, is so nominated in the obligation; while the defendant asserts that he has in equity the right to-be .reimbursed for the improvements and have the same charged upon the body of the property on which they were made. This difference in opinion is the foundation of the real question in the case. It was directly presented by the demurrer to that part of the answer -stricken out by the court.

At the time the common law of England was brought to this country by our ancestors the action of ejectment was an altogether fictitious proceeding, in which the damages were nominal only, and it remained so in those- States in which the 'common law was adopted until changed by statute. - The owner recovered his land without being required to pay for improvements, which were considered as annexed to the freehold and passing with recovery. Another remedy was given the plaintiff for his injury by being kept out of the premises, in the way of an action of trespass for mesne profits. [3 Sedgwick on Damages (9 Ed.), Sec. 901.] This action is a liberal and equitable one which will allow every equitable kind of defense. [Id., Sec. 915 and note.] Nothing is more reasonable than that the bona fide possessor of land should be reimbursed out of the rentals for valuable and permanent improvements made by him in good faith, while in possession, with the consent and at the instance of the owner, and we find that the practice of permitting such compensation to be offset in actions for mesne profits has prevailed both in this country and in England for many years. For instance, in Coulter’s case, 3 Coke, 30, decided more than three hundred years ago it was said: “The disseisor shall recoup all the damages which he hath expended in amending the houses;” and in 8 Miner’s Abridgment, p. 556 (Title, Discount, case 3), it was said: “Damages of forty shillings and no more were found by the assize, because the land is sown, and the houses well amended, and so recouped the damages.” Approaching nearer to our own time, it was said by KeNT, J., in Murray v. Gfouvernenr, 2 Johnson’s Cases, 438: “As to the sum expended by the appellant for repairs, it may be left for liquidation, in an action for the mesne profits, if the respondents should think proper to sue for the rents and profits. The action for mesne profits is a liberal and' equitable action, and will allow of every kind of equitable defense.” In our own State this right of recoupment was not considered broad enough to permit the doing of justice in all cases, inasmuch as it afforded the occupant no relief except out of the rents and profits, while it was thought that in those cases in which the occupants make improvements not only in good faith, believing themselves to have good title, but not having any notice of the title or claim asserted by the true owner, they should have a broader and more complete remedy. To meet this supposed want the law was enacted which is now embodied in section 2401 and following, of' the Revised Statutes of 1909. That this law was not intended to-take away any remedy that had theretofore existed but to afford a more complete remedy out of the body of the improved estate in those cases that come within its provisions, is settled by numerous adjudications in this State. [Mann v. Doerr, 222 Mo. 1; Dawkins v. Griffin, 195 Mo. 430; Tice v. Fleming, 173 Mo. 49; Henderson v. Langley, 76 Mo. 226; Fenwick v. Gill, 38 Mo. 510; Dothage v. Stuart, 35 Mo. 251.]

In those jurisdictions where the recovery of rents and profits in ejectment is permitted, the same rule applies as in actions for mesne profits at common law. The improvements may be recouped against the damages recovered on account of rents and profits. It is recognized that this is just because, in most cases, as in this, it is the improvements that earn the rental. In cases arising under the Missouri statute to which we have referred, a separate spit must be brought according to the practice there prescribed to charge the improvements against the land. The statute however, takes away no right of this character that existed before the enactment. It excludes by its terms all actions between vendor and vendee and between landlord and tenant, because vendees and tenants have notice of the titles of their vendors and landlords. It is useless to speculate here as to what other relations in ‘which, the common law remedy was so allowed may be included in or excluded from the terms of this statute, but one or the other of these remedies applies in ■all cases in which the right existed at common law.

While the defendant is not entitled to the r,elief he asks in his answer, we think the facts stated constitute a good defense against the damages alleged in the petition. The plaintiff had, as was his right, exercised his election to forfeit the contract of sale, instead of proceeding to collect the purchase price by •charging it upon the land, which would have permitted the defendant to reimburse himself for his improvements out of any surplus which might be left after satisfying that claim. This left no other course open to •defendant than to seek, somewhere in the' proceeding, compensation for his improvements, made not only with the acquiescence of, but under an agreement with, the plaintiff, He filed an answer disclosing his rights, •which was held bad on demurrer; and notwithstanding his general denial was still left, a default was entered and immediately proceeded upon to final judgment. That this was in direct disregard of the statute cannot be questioned, but it is answered that as only nominal damages' were assessed no substantial right of the defendant was violated. It is a sufficient •answer to this to say that the plaintiff, in pursuit of his strict legal rights must conform to the remedies the law has prescribed as conditions to its aid.

The judgment of the Greene County Circuit Court is accordingly reversed, and the cause remanded to be proceeded with in accordance with this opinion.

PER CURIAM.

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

All the judges concur.


source: Caselaw Access Project

author: BROWN, P. J.

license: Public Domain

text:
    THE STATE v. W. C. FERRELL, Appellant.
    Division Two,
    December 10, 1912.
    1. EVIDENCE: Statements by Coconspirator: Objection. Statements made by one coeonspirator to another, which were not made in furtherance of the original conspiracy, if the real ground of their incompetency is called to the court’s attention by a. proper objection, should be excluded.
    2. -: Conspiracy: Date of Consummation: Abandonment.. It is not incumbent upon the State to prove that the conspirators, who had agreed to lie in wait and shoot another on a certain night, had also agreed that such other should be killed on the date he was killed some six months later. When there-is proof that the conspiracy had been formed, it will be presumed that it had not been abandoned when there is no evidence or circumstance to indicate abandonment.
    3. -; -: Continued Hostility. Statements made by one conspirator to others, after the conspiracy was formed and before the killing, indicating continued hostility towards the person shot at, are competent.
    4. INSTRUCTION:,, Omitting Malice feefore Aforethought. An> instruction telling the jury that if defendant “wilfully, pre-meditatedly and with aforethought shot and mortally wounded with a gun loaded with gunpowder and leaden ball one William M. Moore in an attempt at said time and place to wilfully, pre-meditatedly and with malice aforethought, to kill one William M. Grider,” etc.,, is not reversible error. The omission of the word “malice” before the word “aforethought,” in view of the fact that “malice aforethought” occurs further on, was neither misleading nor prejudicial, under the circumstances of the-case.
    5. ARGUMENT OF COUNSEL: Comment on Falsity of Defendant’s Testimony. Where defendant, who is charged with having, from his home, a distance of 1670 feet, fired at Grider who-was on a horse and killed Moore standing by the horse, had testified that he was at home but did not hear the shot fired,, and five other witnesses had testified that the shot was fired from a point at or near defendant’s house, it was entirely proper for the prosecuting attorney, in his argument to the jury, to comment on the fact that defendant had testified that he did not hear the shot. Such remarks were not a comment on defendant’s silence, but a proper argument upon the falsity of his-testimony.

      6. --: Reference to Defendant’s Failure to Explain. Where defendant voluntarily testifies concerning certain facts, but fails to testify concerning others, a reference by the prosecuting attorney in his argument to the jury to the facts concerning which defendant remained silent, if unintentionally made and a prompt rebuke is administered by the court, does not constitute reversible error.
    7. -: Reference to Cooonspirator Not on Trial: Payment of Attorney’s Fee. The prosecuting attorney, in his argument to the jury, stated that a certain coconspirator, who had been tried and acquitted, was present and helping defendant in his defense; that he was the man behind the whole thing; that he was the man who was paying defendant’s attorneys; and that he was the brains of the whole conspiracy. Thereupon the co-conspirator said: “Don’t say that any more.” Defendant’s attorney objected to the prosecuting attorney stating something not in evidence, and the court stated: “I think you are out of the record.” Thereupon the prosecuting attorney said: “I notice my remarks cause a great deal of commotion.” Thereupon the court said: “Leave off the comments and just stay within the record.” The evidence makes out a prima facie case of conspiracy to kill, and points to this man as one of its leading members, and the only fact stated by the prosecuting attorney that is not fully sustained by the evidence is that the co-conspirator was paying defendant’s attorneys. Held, that the remarks do not constitute reversible error. Besides, as defendant’s attorney failed to call the court’s attention to the particular part of the argument which was outside the record, the court would have committed no error if it had wholly disregarded the objection.
    8. INSTRUCTION: Reasonable Doubt: Repetition. One correct instruction on the law of reasonable doubt is sufficient. Repetition in the instructions of that phase of the law is liable to lead the jury to believe that the court is in doubt as to defendant’s guilt.
    Appeal from Callaway Circuit Court. — Hon. A. W. Walker, Special Judge.
    AFFIRMED.

      Charles M. Hay and H. N. Eversole for appellant.
    (1) The conversation between witnesses Dunn •and Leggett and the conversation between Westbrook and Leggett were inadmissible and highly prejudicial to defendant, (a) As to the first, it is admitted by Dunn himself that said conversation did not take place In the presence of the defendant, and that it was had after December 16, 1908. Defendant’s objection was based on the proposition that the State had made no prima facie showing that a conspiracy existed between defendant and any others at any time subsequent to December 16, 1908, and prior to June 17,- 1909, between which dates said witness Dunn testifies that this conversation took place. The theory on which this evidence was received in the- circuit court was that said evidence was competent and admissible even if made after the conspiracy which Dunn said existed on December 16, 1908, had been abandoned or the object of the conspiracy had been accomplished. This position is borne out by the failure of the court to require the State to prove or make out prima facie, preliminary to the introduction of the evidence objected to by the •defendant, that the conspiracy was still in existence at the time Dunn alleges this conversation took place between himself and Leggett. 6 Am. & Eng. Ency. Law, 571, 869; State v. Fredericks, 85 Mo. 150; State v. Reed, 85 Mo. 198; State v. Flanders, 118 Mo. 227. (b) As to the conversation between Westbrook and Leggett, the record clearly shows that the defendant was not present at the time it is alleged to have taken place. If the trial court admitted the evidence on the theory that Leggett was a coconspirator with defendant, then the court committed error in peremptorily overruling defendant’s objection without requiring the State to make out a prima facie case showing that a conspiracy existed between Leggett and the defendant at the date this conversation is alleged by Westbrook to have taken place. 6 Am. & Eng. Ency. Law, 571, 869; State v. Fredericks, 85 Mo. 150. (2) In the opening argument for the State the assistant prosecuting attorney committed reversible error in commenting npon defendant’s failure to explain or to testify as to why lie did not hear the shot fired that killed Moore. State v. Ferrell, 233 Mo. 452; State v. Dietz, 235 Mo. 332; State v. Spivey, 191 Mo. 112. (3) The repeated reference of the assistant prosecuting attorney to appellant’s failure to explain the where-' abouts of the gun and the failure of the court, on defendant’s insistence, to properly reprimand and rebuke the assistant prosecuting attorney therefor was reversible error. State v. Dietz, 235 Mo. 341; State v. Ferrell, 233 Mo. 458. (4) An instruction for murder which omits a finding of “malice” is an incorrect statement of the substantive law and hence the giving of such an instruction demands the reversal of this cause. State v. Pacquett, 75 Mo. 330; State v. Simms, 68 Mo. 305; State v. Mitchell, 64 Mo. 192; State v. Rose, 142 Mo. 426.

      Elliott W. Major, Attorney-General, and John M.. Dawson, Assistant Attorney-General, for the State.
    (1) If several persons conspire to do an unlawful act, and death, occurs in the prosecuting of the common object, all are alike guilty of the homicide. 2 Hawk., P. C., Ch. 29; 1 Hale, P. C., Ch. 34; 1 Russell on Crimes, 24; 1 Chitty’s Crim. Law, 264; 1 McLain on Crim. Law, Sec. 196. (2) Evidence of conspirators is admissible when said declarations are made after the conspiracy is formed and before the offense is committed. State v. Kennedy, 177 Mo. 98; Lamb v. People, 96 Ill. 73; 1 Bishop Crim. Law (7 Ed.), 637; State v. Gatlin, 170 Mo. 354; State v. Copeman, 186 Mo. 109; State v. Shelledy, 8 Iowa 477. (3) The argument complained of is not reversible error. The court rebuked Mr. Tincher where he said appellant would have heard the shot that was fired. The court sufficiently rebuked the State’s attorney. State v. Mahly, 48 Mo. 319; State v. Sublett, 191 Mo. 174. (4) The appellant took the stand in Ms own behalf and, having done" so, Ms evidence or want of evidence may be discussed tbe same as that of other witnesses. Secs. 5242 and 5243, R. S. 1909. There is a difference between the appellant not testifying and testifying only ' to certain things. State v. Schmidt, 136 Mo. 644. Remarks of counsel cannot be construed as a reference to appellant’s failure to testify where appellant has testified in his own behalf. State v. Grubb, 201 Mo. 585. This language of the State’s attorney, together with the rebuke of the court, was sufficient to convince the jury that he did not intend to get out of the evidence, and that such remarks were sufficiently withdrawn from the consideration of the jury, and same did not prejudice the jury. State v. Summar, 143 ‘Mo. 234; State v. Hyland, 144 Mo. 313; State v. Evans, 124 Mo. 397; State v. Kaiser, 130 Mo. 436; State v. Emory, 79 Mo. 463; State v. Allen, 174 Mo. 698; State v. Pun-shon, 133 Mo. 58.
   BROWN, P. J.

Defendant appeals from a judgment of the circuit court of Callaway county, sentencing him to serve a term of ten years in the penitentiary for the alleged murder of one William Moore. TMs is the second conviction and second appeal in this case. [233 Mo. 452.]

An indictment charging defendant and four other persons, to-wit, J. L. Dunn, J. F. Liggett, Mollie Lig-gett and Charles Ferrell, with murder in the first degree, by shooting and killing William Moore, was returned by the grand jury of Callaway county. The State elected to prosecute only for the crime of murder in the second degree. J. F. Liggett was tried and acquitted, and defendant was separately tried and convicted.

The defendant and his coindictees are farmers, and at the time of the homicide lived within a few hundred yards of each other and maintained intimate social relations. ‘Within.’ a short distance of these parties also resided one William M. Crider, who was heartily hated by defendant and his coindictees.

The evidence on the part of the State tends to prove that on June 17, 1909, said William M. G-rider started on horseback to Jefferson City and after he had passed 1670 feet beyond defendant’s honse, met the deceased (Moore) walking along the public road. Crider stopped his horse to talk with deceased, turning his horse somewhat crosswise of the road. While in this position, a shot was fired from the direction of defendant’s house and the bullet which produced the tragedy first struck Crider’s horse and then passed into the body of Moore, producing his death within an hour. The evidence does not indicate that any enmity existed between defendant Ferrell and deceased; and the theory of the State is that as deceased was standing behind Crider’s horse and the view somewhat obstructed, defendant did not see deceased, but fired the fatal shot intending to kill Crider.

From observations made by a surveyor and other parties, by placing a man on horseback in the place where Crider’s horse stood at the time of the tragedy, and another man by the side of the horse, together with the wound on the horse’s hip, the indications were that the shot which killed Moore was fired either from defendant’s house or from some point in the direction of his house.

There was further testimony that, a person at or in defendant’s house could see Crider as he sat on his horse at the place where Moore was killed.

John Dunn, one of the parties indicted with defendant, testified on ^ the part of the State to a conspiracy formed on December 17, 1908, whereby he and his coindictees agreed to lie in wait and shoot Crider on that night as he returned from a near-by town. Dunn did not perform his part of the conspiracy and Grider was not killed or assaulted at the time agreed upon.

Dunn further testified that when he met defendant a few days later, he (Dunn) pleaded the sickness of his wife as an excuse for failing to perform his part of the criminal compact. It was thereupon agreed that they would have to “set some other time to get him” (Grider). There is no evidence that any other date was ever agreed upon for the killing of Grider,, but there is evidence of continued malice on the part of defendant and his coindictees against Grider, accompanied by frequent threats up.to the day of the homicide.

We find nothing in the record to indicate that defendant abandoned the conspiracy, if he ever entered into such a conspiracy to kill Grider, as testified to by Dunn.

It is clearly proven that intimate social relations between defendant and his coindictees continued up to the day that Moore was killed, and that the defendant and at least three of his coindictees were together near the place from which the fatal shot was fired less than an hour before the tragedy.

The State’s evidence further tended to prove that the defendant came to Jefferson City on May 22, 1909, and purchased a Springfield army rifle, caliber .45-70, and a box containing six cartridges, from one Lohman, a merchant. Defendant did not pay for the gun then, but promised to do so if it suited him. He stated that he wanted to take the gun to Arkansas with him if he found it satisfactory.

The night after Moore was killed, defendant’s house was searched. In the loft thereof, a cartridge box with some blank cartridges were discovered. The army rifle was not found. Lohman, the merchant who sold defendant the cartridges, identified the'cartridge box by a private mark placed on same' while it was in his store.

There was evidence on the part of the State that “the bnllet which killed Moore and which was fonnd lodged in his clothing was of the same make and size as those used in a .45-70 caliber Springfield army rifle, and also evidence on the part of defendant that the Tbnllet so fonnd was smaller than those usually fired from a rifle of that make and caliber.

When arrested, defendant first told the sheriff “that he never owned or had in his possession a larger rifle than a .32 caliber; but when his attention was •called to his purchase from Lohman of the army rifle, he stated to the sheriff that he purchased that gun for & man named Kesser who was going to Arkansas; that while in Jefferson City he sold it to Kesser on credit and that Kesser sent the purchase money by post office or express money order from Springfield, Missouri, to Mrs. Francis Waters, a stepdaughter of defendant, who turned it over to him. Mrs. Waters was sworn-and testified that she never received any •such money order and did not know that defendant had the gun. Kesser was not called as a witness.

W. H. Parks, a second-hand dealer of Jefferson City, testified that about two months before May 22, 1909, he sold defendant a .32 caliber Winchester rifle, and that on said May 22, 1909, .defendant came to his store and asked to trade the .32 Winchester for a larger gun, stating that hawks were bothering him and he wanted a larger gun to kill them with.

J. E. Liggett (jointly indicted with defendant) testified that he came to Jefferson City with defendant in a wagon on May 22, 1909 (the day the army rifle was purchased), .and that defendant did not take the army rifle home with him. Liggett further testified that he knew nothing of the alleged conspiracy to kill G-rider, but had heard witness Dunn make many "threats against the life of Grider. He also testified that he did not hear the shot fired which killed Moore, though the evidence all tends to show that he was within less than 300 yards of the place where Moore was killed.

Fonr witnesses who were working on farms from a quarter to a half-mile from the scene of the homicide, testified that they distinctly heard a gun discharged about the time that Moore was killed, and that the report or sound of said gun came from the' direction of defendant’s house.

Defendant was sworn and testified that he did not fire the shot which killed Moore; that he was at home at the time of the killing, but did not hear any shot, fired. He failed to testify in regard to other facts in the case.

Other fácts necessary to a full understanding of the case, will be noted in connection with our opinion.

I. Defendant assigns error in the trial court’s action in admitting criminating statements made to witnesses Dunn and "Westbrook by.J- F. Liggett (a coconspirator) after the conspiracy was formed and before the killing of Moore. These statements by Lig-gett indicated continued hostility against Grider and determination to get rid of him in some way.

When this evidence was offered, defendant’s attorney interposed the. following objection:

“I object to any testimony on the part of this witness as to what transpired between this witness and any other defendant in this case, other than W. C. Ferrell, at any time between December 16, 1908, and the date of the alleged death of Moore, unless it be further shown that the alleged conspiracy existed on the morning of June 17, 1909, as any statements made by any of these persons are in no sense binding upon the defendant and only calculated to confuse the issues in the case.!”

It does not appear that all these statements were made by Liggett in aid or furtherance of the original conspiracy to kill Grider; and if they had been objected to on that ground, some of them at least shonld have been excluded. [8 Cyc. 680; Wharton’s Criminal. Law (10 Ed.), Secs. 1405-6; State v. Bobbitt, 228 Mo. 252.]

It will be observed, however, that the trial court’s attention was not called to the real grounds which rendered this class of evidence inadmissible; therefore, the court did not commit reversible error by admitting it. Trial courts are not supposed both to know and remember all the law all the time; hence, the necessity of requiring attorneys to point out the specific grounds upon which improper evidence should be excluded. [Russell v. Glasser, 93 Mo, l. c. 360; Adair v. Mette, 156 Mo. l. c. 507, and cases there cited.]

The evidence complained of was valuable to the State as tending to prove the intense hostility of Lig-gett, one of the conspirators, against Crider; and it further tended to prove that the conspiracy had not been abandoned. It was not incumbent upon the State to prove that the conspirators had agreed upon June 17, 1909, as the exact date when Crider should be killed.

It is undoubtedly true that individuals are more likely to commit crimes when they are assured in advance that their criminal conduct will be approved by their neighbors; and when it is shown that an agreement or compact has been formed between- several persons to aid or co-operate with each other in the perpetration of a crime, it will not be presumed that such conspiracy has been abandoned when (as in this case) there is no evidence or circumstance to indicate such abandonment. The admission of statements made by Liggett was not error.

II. Defendant also complains of instruction numbered 6, given on the part of the State, as follows:

“The court instructs the jury that if you believe from the evidence beyond a reasonable doubt that the defendant at the connty of Callaway and in the State of Missouri did on or about the seventeenth day of June, 1909, or at any time before the finding of the indictment herein, willfully, premeditatedly, and with aforethought, shoot and mortally wound with a gun loaded with gunpowder and leaden ball one William (Monk) Moore in an attempt at said time and place to willfully, premeditatedly, and with malice aforethought, to kill one William M. Grider, and you further find from the evidence that within a year and a day after such shooting and wounding the said William (Monk) Moore died from the effects of such shooting and wounding done by the defendant as aforesaid, you will find the defendant guilty of murder in the second degree and assess his punishment at imprisonment for a term of not less than ten years.”

The defendant insists that the word “malice” should have been inserted just before the word “aforethought,” where said last named word occurs the first time in the quoted instruction; and that by the omission of said word “malice” at that particular place, the instruction is not only incorrect and confusing, but constitutes reversible error.

Defendant’s contention is unsound. In view of the fact that the words “malice aforethought” did occur in the latter part of the instruction complained of, we hold that the omission of the said word “malice” in the first part of said instruction was neither misleading nor prejudicial. The words “willfully, pre-meditatedly and with aforethought,” as italicized in the quoted instruction, could have all 'been omitted, and the instruction would still be correct, as applied to the evidence in this case.

III. It is further insisted by the defendant that the trial court erred in failing to instruct on the law of manslaughter in the fourth degree. ■ His contention is that the State’s evidence tended to prove that the defendant did not slioot at Grider with the intention of killing either him or Moore, but only with a design to scare Grider.

After a careful inspection of the record, we are convinced that there is no evidence upon which to base a manslaughter instruction. In fact, there is no evidence which warrants an instruction on any crime except murder in the first degree. The prosecuting attorney’s election to prosecute for murder in the second degree is the only thing which justified the court in giving an instruction for murder in the. second degree.

IY. Further error is assigned in the action of the assistant prosecuting attorney in commenting on the fact that defendant -did not hear the shot which killed William Moore. There was no error in this part of Mr. Tincher’s argument. Defendant had, without objection, testified that he was at home hut did not hear the shot fired; and as five other witnesses had testified that the shot was fired from a point at or near defendant’s house, it was entirely proper for the assistant prosecutor to call the attention of the jury to* the improbability of his evidence. These remarks-were not a comment on defendant’s silence, but a. proper argument upon the falsity of his evidence, as; given.

Y. In the further argument of the case by the assistant prosecutor, the following occurred:

“By Mr. Tincher-: Then we find him, gentlemen,, in the possession of this gun. He has not' explained to this jury in any sort of a satisfactory manner how he got rid of that gun,'and I dare Mr. Hay, the eloquent attorney for the defendant—
“By Mr. Hay: I object to the remark of the prosecuting attorney as being a comment upon the failure of the defendant to explain it and ask that he be reprimanded for such a remark.
“By the Court: No remarks should he made to the defendant’s not testifying in any respect. Do not refer to the defendant’s failure to testify to anything, Mr. Tincher.
“By Mr. Hay: I ask that he he more severely reprimanded, and except to the failure of the court so to do.
“By the Court: Tour objection should he more timely, Mr. Hay. (To Mr. Tincher) Proceed with the the argument. Do not refer in ■ any way to the defendant, Mr. Tincher, failing to testify to anything.
“And to the above remarks of counsel for the State and to the action of the court in failing to properly rebuke him therefor, the defendant, by his counsel, then and there at the time duly excepted and saved his exceptions.
“Thereupon, Mr. Tincher proceeded with his remarks, referring to the transfer of the intent to kill, from Grider to Moore, then saying: ‘The fact that ¡he had nothing against old man Moore don’t cut any tigure in the case whatever. Now, let us go a little further. We find him in possession of that gun and ¡he has not explained how he got rid of the gun.’
“By Mr. Hay: I object to that as a comment upon the failure of defendant to testify.
“By the Court: You must refrain from commenting upon the defendant’s not testifying.
“By Mr. Tincher: I didn’t aim to, do that. I certainly did not intend to do so.
“By the Court: Well, you must refrain from it. .You have been corrected long enough.”

The assistant prosecutor’s reference to defendant’s failure to explain to the jury what he did with the army rifle was of course an improper comment upon defendant’s silence regarding a matter upon which he had a-lawful right to remain silent; but after .careful consideration, we do not think the language •objected to amounted to such, a gross invasion of defendant’s rights as to justify a reversal.

The last remark of Mr. Thicker seems to. have been an inadvertence, and the court promptly rebuked kirn as severely as it was possible without administering a fine. It is not at all probable that it harmed the defendant.

When a defendant is not sworn, a comment upon his silence is much more inexcusable than when he has been sworn and testifies to a part of the facts in a case and remains silent as to the others.

When the defendant, as in this case, voluntarily testifies regarding part of the facts in evidence and fails to give evidence in regard to other connected facts, it is very difficult for the prosecutor to make an ■effective argument without either directly or indirectly making improper reference to some point upon which the defendant has remained silent; and in such cases, when the improper remarks of the prosecutor do not appear to have been intentionally made and a prompt rebuke is administered by the court, we are inclined to treat the error as harmless.

In the concluding argument by Mr. Baker, the •prosecuting attorney, the following occurred:

“By Mr. Baker: Liggett is the man whom you have seen sitting over there helping Ferrell in his defense. Liggett is the man who is back of this whole thing. Liggett is the man who is paying Ferrell’s attorneys in this case. Liggett was the man who was the brains of the whole conspiracy.
“By J. F. Liggett (a bystander): ‘Don’t say -that any more.’
“By Mr. Hay: We object to the gentleman stating something not in evidence.
“By the Court: Yes, sir, I think you are out of the record.
“By Mr. Baker: I notice my remarks cause a .great deal of commotion.
“By the Court: Leave off the comments and' just stay within the record.”

The only part of Mr. Baker’s argument which was not fully sustained by the evidence was the statement that Liggett was paying defendant’s attorney-fees. The record shows that if the conspiracy was-formed to kill G-rider, it was entered into in Liggett’s hoíne; that between the day of forming the conspiracy and the killing of Moore, Liggett continued to tell his coconspirators that they should get rid of Grider in some way. On one occasion some affidavits were prepared and signed by the wife of witness Dunn charging Grider with a crime, the prosecution of which was barred by the Statute of Limitations. Liggett took those affidavits to the prosecuting attorney and when the latter declined to prosecute Grider, Liggett stated that it would afford him pleasure to tie one end of a rope around Grider’s neck and the other end around the neck of the prosecuting attorney, and swing them across a limb. Some days later, and before the hpmi-cide, Liggett suggested to Dunn that the affidavits be-changed so as to charge the crime to have been committed by Grider at a later date than it was really committed, in order that the prosecution might be maintained.

In view of th,e foregoing evidence, the prosecuting attorney was not outside the record when he referred to Liggett as being the “brains of the whole-conspiracy.” His remark was a legitimate inference-from the evidence in the record. We do not know what evidence was before the jury which acquitted Lig-gett, but the evidence in this record makes out a prima, facie case of conspiracy to kill Grider, and points to-Liggett as one of the leading members of such conspiracy.

The remarks of Mr. Baker complained of do not constitute reversible error. In fact, the defendant’s attorney having failed to call the court’s attention to-the particular part of the argument which was outside the record (the payment of attorney’s fees), the court would have committed no error if it had wholly disregarded the objection.

We reversed the first judgment of conviction in this case on account of the improper argument of the prosecuting attorney. On that appeal, it appears that the trial court directly sanctioned and approved a part of the improper argument, and when the most damaging remarks were made (the reference to the failure of defendant and some of his coindictees to deny the conspiracy), the court, upon objection, not only neglected to rebuke the prosecutor, but attempted to delegate to the jury the power to determine whether or not the argument was or was not an improper comment upon the silence of defendant. The record now before us is very different from, the one presented in the first appeal. In the latter trial, the court diligently endeavored to protect the rights of the defendant, even going so far as to rebuke the State’s counsel twice when their remarks were not improper.

Notwithstanding the assistant prosecutor made a few improper remarks, we find the defendant had a fair trial.

The court was excessively liberal to defendant in its instructions — eight of the twenty instructions given dealt with the law of reasonable doubt. One correct instruction on the law of reasonable doubt is sufficient. [State v. Marsh, 171 Mo. 523.] The repetition of that phase of the law in instructions is liable to lead the jury to believe that the court itself is in doubt as to the defendant’s guilt, when it is his duty, if he submits a case to the jury at all, to refrain from informing the jury what his personal views are as to the guilt or innocence of the defendant.

However, the act of the court in unduly emphasizing the law of reasonable doubt, was an error in favor of the defendant, and as he was convicted, the State cannot complain.

The judgment is affirmed.

Ferriss and Kennish, JJ.f concur.


author: ROY, C. PER CURIAM.

text:
    THE STATE v. JOSEPH STAPP.
    Division Two,
    December 10, 1912.
    1. ABORTION: Instructions: Evidence. Where, in a prosecution for administering drugs to, and using instruments upon, a pregnant woman, with the intent to produce an abortion, the evidence showed that the abortion took place four weeks after the alleged use of the instruments (a lapse of time which, according to all the expert testimony, made it impossible for the operation to have caused the abortion), it was prejudicial error to instruct, first, that defendant must be found guilty if he administered the drugs with the intent alleged, and, second, that to “administer” meant to “give” drugs to a person — the evidence showing that .defendant gave the woman pills with directions to take them the next day, and there being no showing that she ever swallowed them.
    2. -: -: Prosecuting Witness: “Implicated.” It was not error to refuse an instruction telling the jury that the prosecuting witness in an abortion case is competent, “but the fact that she was implicated” may be considered in determining her credibility.
    3. -: Indictment: Sec. 4458, R. S. 1909. An indictment under Sec. 4458, R. S. 1909, does not charge the commission of any offense unless, being otherwise correct, it alleges that the death of the -woman or of a Quick child did or did not occur.
    Appeal from Bay Circuit Court. — Ho». Francis H. Trimble, Judge.
    BEVERSED AND REMANDED.

      Lavelock & Kirkpatrick for appellant.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
   ROY, C.

Appellant is a physician and was convicted nnder an indictment charging him in one count with having administered drugs to a pregnant woman, and also with having used instruments upon her body, nil with the intent to produce an abortion. There is no allegation in the indictment as to whether the death of the woman or of a quick child was caused by the abortion.

Elizabeth Bales testified that she, being about four months pregnant, went, in company with Reed Taylor, the author of her trouble, to the office of the defendant about ten o’clock at night on June 26, 1910; that Taylor first had a talk with the defendant out of hearing of the -witness; that the witness then entered defendant’s office, and defendant told her that he had learned from Taylor that they (witness and Taylor) were in trouble and that he had told Taylor that he (defendant) had helped others and would help them. That defendant used instruments'in her womb, and gave her some pills with instructions to take them the next day. There was no evidence that she ever took (swallowed) the pills. No inquiry was made of her at the trial as to whether she ever took the pills into her stomach. The abortion occurred on July 24, 1910. She was not confined to her bed until the day on which the abortion occurred, but stated in her testimony that she could “hardly go.”

Several physicians testified as experts that an abortion would not occur from the use of instruments so long after such use, and there was no medical evidence to the contrary.

Reed Taylor corroborated the evidence of Miss Bales as to the visit to defendant’s office and the purpose of such visit.

The defendant testified and denied the charge in toto. The court refused a demurrer to the evidence asked by the defendant and also refused the following instruction asked by him:

“The jury are instructed that the prosecuting witness is a competent witness, hut the-fact that she was implicated in the alleged transaction may he taken into-consideration hy the jury in determining the credibility to he given to her testimony.”

The jury were instructed to. find the defendant guilty if they found that he, under the circumstances and with the intent mentioned in the instructions, administered to her any drugs or used upon her any instruments hy inserting them in her womb.

By instruction 3 the jury were told that the word “administered” meant the giving to her any drugs for the purpose of producing an abortion.

I. We are confronted with the fact that the abortion did not occur until four weeks after the alleged use of the instruments. The expert testimony was all to the effect that such result would not follow after so-long a time. The jury were not necessarily bound hy the expert evidence, and had the right to find that the abortion was caused hy the use of the instruments notwithstanding such expert evidence. But on this record we cannot say that they did so find. They may have found that the abortion was caused hy the drugs. Yet there is no evidence that she took the drugs into her stomach.

Instruction numbered 2 authorized them to find the defendant guilty if he administered the drugs with such an intent. There was no evidence on which to base it.

Instruction numbered 3 told the jury that to “administer” drugs to a person meant to “give” them to-such person. To “give” drugs to a person under some-circumstances may possibly include the idea that such drugs are taken into the stomach. It could not have any such meaning in this case, because the evidence was that defendant gave her the pills 'with directions to take them the next day.

The jury may have failed to find that any instruments were used; and, under those instructions, may have found the defendant guilty because he had delivered to her the pills regardless of whether she ever swallowed them. We cannot, presume that she swallowed any of the pills. She was on the stand and counsel for the State did not ask her whether she swallowed them, and she made no statement on the subject.

Bishop on Statutory Crimes, Sec. 747, says: “To administer the poison or other thing is to cause it to be taken. It may be by forcing it down the woman’s throat, or by violence compelling her to swallow it. Or it may be by delivering it to one who receives it into her system voluntarily, having, or not, asked for it.”

We hold that there was no evidence on which the defendant could be convicted of administering drugs to the prosecuting witness. From the circumstances of the case, we think it more than probable that the jury convicted the defendant on that ground. The error was directly prejudicial to the right of the accused.

II. As to whether instruction F asked by defendant should have been given, Bishop says: “The woman is admissible as a witness within principles explained in another connection. We have seen that generally in our States she. is not technically an accomplice, whose evidence, therefore, is within the special rule requiring confirmation. But it is by some deemed that, ‘inasmuch as she was in a moral point of view implicated in the transaction, it would be proper for the jury to consider that circumstance in its bearing upon her credibility;’ rendering a caution from the court, to this effect, judicious and proper, and evidence confirmatory particularly appropriate. And some tribunals appear to regard her, as to confirmation, substantially the same as a technical accomplice. Yet, in reason, the difference is wide; for an accomplice swears under tbe temptation of earning thereby his own immunity, while she does not. She discloses her own disgrace; and, where no evil motive appears for it, this fact may, in reason, strengthen her credibility. Yet plainly the special temptations of the particular case should be taken into the account, and the attention of the jury may well be directed to them.”

It will be noticed that the writer says that the attention of the jury “may well be directed to them.” He does not state that such instruction must be given. None of the eases cited by that writer require that such an instruction should be given. We consider such an instruction useless. It contains no legal proposition and is purely a comment on the evidence.

III. The indictment does not charge the commission of any offense. Manslaughter, under the terms of .section 4458, occurs only in case of the death of the woman or of the quick child. The offense of abortion is committed only when such death does not occur. There is no allegation that such death did or did not occur.

It is well to call attention to the fact that administering drugs with such intent is an offense, and that the use of .instruments with such an intent is also an offense, and that the indictment attempts to charge both such offenses in the same count.

The judgment is reversed and the cause remanded.

Blair, G., concurs.

PER CURIAM.

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

All the judges concur.


author: KENNISH, J.

text:
    THE STATE v. F. H. DONNINGTON, Appellant.
    Division Two,
    December 10, 1912.
    1. I1VIPOTENCY: Carnal Knowledge: Cross-Examination of Defendant: Visit to Woman of III Repute: Admission and Circumstance. In the prosecution, for carnal knowledge of a little girl, of a defendant who has undertaken to prove that he had been wholly impotent for more than a year preceding the time-of the alleged offense, it is not error to permit the State to prove by the cross-examination of defendant that he had visited the house of a woman of ill repute within that year, nor to ask him if he had not stated to a certain witness that he had visited her house and was going to “get some from her,” and then upon his denial of the statement to prove by the witness that defendant had made the statement; nor was it error to refuse to strike out the testimony, when the question was if he had not made the statement in 1910 and the witness testified it was in 1909. The testimony was competent as a circumstance and an admission tending to discredit defendant’s testimony as to his impotency, even though not for the purpose of impeachment.
    2. -: -: Power of Sexual Intercourse: Expert Testimony. 'Where defendant tries to meet the charge of carnal knowledge of a little girl by attempting to show that he had been wholly impotent for more than a year, it is not error to refuse to permit a physician, who states he had .paid but little attention to the girl, to state whether or not in his opinion the defendant could have had sexual intercourse with her, since he had not sufficiently qualified himself to answer the question.
    3. CARNAL KNOWLEDGE: Scrutiny of Testimony. The heinousness of the crime of carnal knowledge with a little orphan girl who has been taken into defendant’s household and the strong feeling against one accused of such a crime, independent of the question of guilt or innocence, have such an influence against the accused, that courts, in a spirit of caution born of experience, closely examine and scrutinize the evidence upon which a conviction has been secured. ■
    4. DEFILING WARD: With Force: Tested as Rape. In the prosecution of a defendant charged with having defiled a female under eighteen years of age who had been confided to his care, proof of force is not necessary if she is shown to have been under fourteen; but if the only testimony for the State tends to show ravishment by force, the sufficiency of the testimony to sustain a verdict should he judged by the rules applicable to rape. Any testimony competent in corroboration of the prose-cutrix in forceable rape would he competent in such a case, but if there is no corroboration the verdict cannot stand.
    5. -: Reversal for New Trial: No Corroboration. Where there is an utter absence of testimony corroborative of the prose-cutrix in the carnal knowledge case; there are many contradictions in her testimony given at the trial of that given in her deposition; her version of the crime is improbable, and her reputation for truth and morality was seriously impeached, a verdict of guilty.cannot stand; but the cause will be remanded in order to afford the State an opportunity to corroborate her.
    Appeal from Bates Circuit Court. — Now. G. A. Galvird, Judge.
    Reversed AND bemaNded.

      Silvers & Silvers and W. 0. Jackson for appellant.
    (1) The testimony of the prosecuting witness was so‘ unreasonable, contradictory and inconsistent that the jury should have been instructed at the close of the State’s case or after the introduction of all the testimony to acquit the defendant. State v. Prendible, 165 Mo. 353 ; State v. Huff, 161 Mo. 487; People v. Lyons, 51 Mich. 215. (2) Dr. Hall had been a physician 38 years, knew the prosecuting witness had not reached the age of puberty, knew her size, also had made a physical examination of defendant in. February, 1910, about the time of the alleged offense. He should have been permitted to tell whether or not defendant could have had sexual intercourse with the prosecuting witness. 17 Cyc. 36; Seckinger v. Mfg. Co., 606; Hardman v. Brown, 162 Mass. 585; State v. Cole, 63 Iowa, 695; Lowe v. State, 118 Wis. 641; Allen v. Voje, 114 Wis. 1. (3) Defendant should not have been cross-examined about the visit to Clara Hussy or about his conversation if any with Paul Jenkins concerning Clara Hussy. This was new matter not referred to in his examination in chief. R. S. 1909, Sec. 5242; State y. McGraw, 74 Mo. 573; State y. Patterson,,88 Mo. 88; State v. Bulla, 89 Mo. 598; State v. Graves, 95 Mo. 5.13; State v. Hathhorn, 166 Mo. 229; State v. Kyle, 177 Mo. 663; State v. Grant, 144 Mo. 63. (4) The motion to strike out the testimony of Jenkins which referred to the visit of Donnington to Clara Hussy and his conversation about .her should have been sustained. It appeared on his cross-examination that the visit, if any, and the conversation, if any, was in the spring of 1908, and not at the time laid in the impeaching question to Donnington in February, 1910: (5) The defendant cannot be impeached, nor can a ground of impeachment be laid by asking him questions relative to matters not inquired into in his examination in chief. This would deprive him of his rights under Sec. 5242, R. S. 1909. State v. Bulla, 89 Mo. 595; State v. Grant, 144 Mo. 56. The testimony was not proper for the purpose of impeachment. Its only tendency was to establish the bad character of defendant by a single act of moral delinquency which is not permissible. State v. Taylor, 98 Mo. 245. When the State desires to impeach a defendant there are three known ways of doing so, viz.: (a) By proof of his general bad reputation. State v. Baker, 209 Mo. 444; State v. Pollard, 174 Mo. 607; State v. Rider, 90 Mo. 54; State v. Beckner, 194 Mo. 281. (b) By proof of other crimes committed by him where he has been convicted tending to effect his credibility as a witness. This can be done in two ways: By the record of the conviction. By asking the defendant on cross-examination whether he has been convicted of other offenses as permitted under Sec. 6383, R. S. 19091, as to ex-convicts. State v. Arnold, 206 Mo. 597. (c) By showing that defendant has made former statements inconsistent with his statements made on the witness stand, but these statements so made by him must be such as he made in his examination in chief or on bis cross-examination properly and lawfully conducted under tbe limitations of See. 5242, B,. S. 1909, and tbe judicial construction placed thereon. State v. Bulla, 89 Mo. 595; State v. Grant, 144 Mo. 63. (6) Tbe verdict was evidently prompted by passion and prejudice and was not tbe result of a calm consideration of tbe facts in evidence. State v. Prendible, 165 Mo. 353; State v. Huff, 161 Mo. 487; State v. Primm, 98 Mo. 368; State v. Castor,' 93 Mo. 242; State v. Jae-ger, 66 Mo. 173; State v. Bugdorf, 53 Mo. 65; State v. Marshall, 47 Mo. 378; State v. Mansfield, 41 Mo. 470; State v. Brosious, 39 Mo. 534; State v. Packwood, 26 Mo. 340.

      Elliott W. Major, Attorney-General, and John, M. 'Atkinson, Assistant Attorney-General, for tbe State.
    (1) Tbe prosecutrix was but a girl 13 years of age at tbe date of tbe alleged crime. Her testimony is perfectly consistent, reasonable and is corroborated by a number of facts testified to by appellant’s wit-, nesses. Appellant’s own wife testified that sbe was absent from ber borne on several occasions, leaving tbe prosecutrix and appellant there. Tbe credibility of tbe prosecutrix’s testimony was a question for tbe jury. Tbe court submitted this issue to tbe jury by proper instructions. Tbe jury believed tbe evidence as given by tbe prosecutrix, and disbelieved appellant’s testimony, denying tbe commission of tbe crime. (2) Tbe question asked Hr. Hall bad reference to treatment rendered appellant by Hr. Hall on a diagnosis for “general debility” and kidney trouble. It bad no reference to any treatment for impotency. Furthermore, tbe assignment cannot be reviewed,.as tbe record does not contain any statement as to what appellant expected tbe answer to this question would be. State v. Arnold, 206 Mo. 589. (3) Hr. Hall bad made no examination of tbe prosecutrix. He says be was only in “speaking distance of her” one time, and that was in the month of September, prior to the date of the alleged crime. The court only sustained the objection to the question calling for the opinion of Dr. Hall for the time being, thereby intimating that by laying the proper foundation, he would permit such question to be answered. ' The record discloses that the doctor was not treating appellant for impoteney at that time, and, in fact, knew nothing about his having such a complaint. This assignment is devoid of any merit, and cannot be reviewed, as the record does not contain any statement as to what appellant expected the answer would be to this question. State v. Arnold, supra. Appellant testified that he was impotent at the time of the alleged, offense, and had been since the year 1908. To impeach this testimony, it was competent to' cross-examine him as to his visit to one Clara Hussy, a woman of ill-repute. It was also competent to prove what appellant told the witness, Jenkins, concerning his proposed illicit intercourse with said woman. This grew out of the direct examination, although not specifically referred to by the witness, and is clearly within the proper range of ■ cross-examination of the appellant under our statute. State v. Miller, 190 Mo. 461; State v. Avery, 113 Mo. 498; State v. Wertz, 191 Mo. 579; State v. Barrington, 198 Mo. 71; State v. Miller, 156 Mo. 85.
   KENNISH, J.

The defendant was tried in the circuit court of Bates county, at the February term, 1911, under an indictment containing two counts. The first count charged him with carnally knowing Esther Cronkhite, a female child under the age of fourteen years, and the second charged him with defiling Esther Cronkhite, a female under eighteen years of age, who had been confided to his care. The jury returned a verdict of not guilty on the first count and a verdict of guilty on the second. Defendant was sentenced to four years in the penitentiary and appealed to this court.

The evidence for the State tended to show the following facts:

At the time of the alleged offense the defendant was thirty-seven or thirty-eight years of age and weighed over two hundred pounds. He was a hardworking man, had been married three times and had a daughter eighteen years of age. His second wife died in March, 1907, and in May of that year he married her sister, who had been making her home at his house prior to the death of his second wife.

In August, 1909, defendant and his wife went to Kansas City and procured, through the mediation of the Detention Home, three children of one R. T. Cronk-hite, a laborer, whose wife was dead. The children were Esther, the prosecutrix, who was twelve ^years of age on January 2, 1909, Forest, a boy aged ten, and Alice aged two. The arrangement made with the father of the children was that defendant and his wife were to take them and care for them as their own. The children were taken to defendant’s home on a farm in Bates county and all three remained there until Christmas, 1909, when the father went to visit them and insisted on taking the youngest back home with him. A few days later he did take the baby to his home in Kansas City, and did not see Esther or Forest again until after the indictment herein was returned.

The testimony of the prosecutrix was to the following effect:

The defendant “took advantage” of her five times during February and March, 1910; once during the first week in February, three times in the latter part of that month, and once on the first day of March. On each of these occasions her brother Forest, the defendant’s wife, and Mahan, a farm-hand, employed :by defendant, were all away from defendant’s home, leaving defendant and lier. alone in the house. The first three times defendant’s wife had gone to town and the last two times she was visiting a neighbor. When the second offense was committed, which was in the latter part of February, Mahan was in the field plowing corn. The first time defendant “took advantage” of her he called her upstairs, in the daytime, caught her by the hands, laid her on the bed and attempted to ravish her. She screamed, fought and resisted in every way she could and he did not accomplish his purpose. When, about three weeks later, he did succeed in defiling her, and also on three subsequent occasions when he forced her to yield to him, the circumstances were precisely the same as at the-time of the first assault; defendant either called or sent her upstairs to the same room, in the daytime, caught her by the hands, laid her on the bed and forcibly ravished her, while she resisted in just the same manner as at the time of the first attempt. In the first attempt there was no penetration whatever, but she bled a few drops. The second time there was penetration, from which she suffered pain, but she did not bleed. Defendant warned her if she told what he had done it would mean sudden death, and she never informed any person of what had happened or complained to any person of the treatment she had received, except her brother Forest. She told him of each offense on the road to school. In each instance that was the first opportunity she had to tell him, although three of the offenses were committed on Saturdays when there was no school and would be none until the following Monday. She remained at defendant’s home until she and Forest were taken away by the sheriff on June 13, 1910, which was the day before the grand jury returned the indictment against the defendant, and between March 1 and June 13 defendant made no attempt to violate her person. After the commission of the third offense and before the commission of the last one, defendant’s wife went to the town of Adrian and remained from Friday until Sunday, and during that time defendant did not molest, her.

On cross-examination she testified that after defendant defiled her he whipped her and her brother for-stealing money from the hired man and lying about it and for playing truant from school. She denied that, she stole the money, but testified that Forest confessed' it and then defendant whipped both of them for stealing and lying and for truancy. In a' deposition taken eight months before the trial, she denied that defendant whipped her. She admitted that both she and Forest wanted to get away from defendant’s home because of “the mistreatment.” In her deposition she-testified that both she and the boy wanted to leave defendant’s place because his wife beat them, and in that connection the following questions and answers appear in her deposition: “Q. Did you and your brother Forest talk about trying to get away from Mrs. Donnington? A. Yes. Q. Did you both agree that if you could tell about Mr. Donnington this would help you get away? A. Forest told. Q. Did he tell this so you could get away? A. I don’t know.” She admitted that while living in Kansas City she shot at a man, but her testimony does not disclose the circumstances of the shooting. In the course of her cross-examination, the following occurred: “Now, do you remember an old Swede named Swanson? A. Yes, sir. Q. You used to visit him occasionally? A. I visited his wife. Q. His wife — why he was a widower? A. I did his washing for him; my oldest brother always took the clothes to him.” She admitted that in a conversation with defendant’s mother soon after he was arrested she was asked why she did not tell the mother about defendant’s misconduct when the mother visited his home, and that she answered by saying: “Oh, I forgot it; I didn’t think about it.”

In her deposition, taken two months after defendant was arrested, she stated that when the first assault took place the defendant told her to lie down upon the hed and she.refused to do so; that he threatened to whip her unless she did as he told her, and she then lay down upon the hed. At the trial her testimony was that on that occasion he placed her upon the hed hy force. In the deposition she said that when the first assault was made she did not know that there was any hlood upon her garments until she went to hed that night. At the trial she testified that the defendant noticed the hlood on her garments and made her go- downstairs and wash them immediately after the assault took place. Asked to explain this discrepancy in her testimony, she said: “I just got it wrong the other time.” In the deposition she testified that she did not know in what month defendant first assaulted her; that he “took advantage” of her five times, hut she could not tell when any one assault occurred. At the trial, eight months later, she fixed the time of each offense positively; one during the first week of February, three in the latter part of that month and the last one on the first day of March.

After prosecutrix left the witness stand she was recalled hy the State and explained that when she said Mahan was plowing corn in February, she meant he was plowing up corn stalks. Being cross-examined, she admitted that the prosecuting attorney had asked her in the meantime if it was not corn stalks instead of com that the man was plowing in February. She was then asked on what part of the farm he was plowing and answered, “The south end.” Asked if she did not know there were no corn stalks on the south end of the farm at that time, she answered, “He was in the west end.”

No evidence whatever was introduced hy the State tending to corroborate the prosecuting witness. It does not appear that she became pregnant, or that a medical examination was ever made -to ascertain whether or not she had been deflowered. It was not shown by any other witness that she suffered any pain or shock as a .result of the alleged repeated outrages, or that she made complaint to any person, although she was attending school during the month of February, 1910. Her brother Forest, to whom she testified she made prompt complaint each time the offense was committed, and who was eleven years oíd at the time of the trial, was not called as a witness.

The defense was a denial by defendant, and testimony contradicting prosecutrix as to many circumstances in connection with hex version of the commission of the different offenses; that prosecutrix was a slender, undeveloped girl, had not reached the age of puberty, and that it would have been impossible for defendant to have defiled her without so injuring her as to cause intense pain and suffering; that defendant had been completely impotent since the month of April, 1908; also that the reputation of prosecutrix for truth and veracity and for morality was bad.

Defendant’s wife and Mahan, the hired man, testified that Mrs. Donnington was away from home but twice in February, 1910, and but once in March. One of the times to which they testified she was away from home was in the latter part of February, when she went to Adrian on Friday and remained until Sunday. Prosecutrix testified that defendant was guilty of no improper conduct while his wife was away on that trip. Defendant’s wife corroborated him as to his impotency subsequent to April, 1908. He was also corroborated in this respect by Dr. Hall of Adrian and by Dr. Dawson of Kansas City, both of whom testified that an injury of the scrotum received by defendant several years before and. an operation that was performed therefor, would tend to render him partially or completely impotent. Mahan testified that neither he nor any other person did any plowing on defendant’s farm during the month of February, 1910. Pie further testified that after defendant whipped prosecutrix and the hoy for lying and stealing, prosecutrix said to the witness that she would “get even with defendant fox whipping her.” Three witnesses from Kansas City, who had known prosecutrix when she lived there with her father, testified to her had reputation for truth and veracity and morality. Two of them, Mrs. Miller and Mrs. Burch, were engaged in city mission work for the Dunkard Church in Kansas City, and prose-cutrix came under their observation in their mission work. They based their testimony on what they heard from people living in the vicinity of her father’s home. The other witness, Mrs. Hagen, lived in the immediate vicinity of the Cronkhite home in Kansas City.

The defendant called a number of witnesses who testified to his good reputation, and the State, in rebuttal, produced several who testified to the contrary on that issue.

Other material facts will be stated in connection with the points decided.

I. The defendant was asked on cross-examination if, returning from Butler to his home in 1910, he did not state to Paul Jenkins that he had visited the house of Clara Hussy, a woman of ill repute, and that he was going to “get some from her.” He denied making the statement, and in rebuttal Paul Jenkins was asked by the prosecuting attorney if. the defendant made the foregoing statement to him, under the circumstances mentioned. The witness answered affirmatively, but fixed the date in 1909. The defendant moved that the testimony of Jenkins be stricken out for the reason that the time fixed by the impeaching witness was a different date from that named in laying the foundation for impeachment. The court overruled the motion, and error is assigned upon such ruling. The testimony sought to be stricken out was competent as an admission against the defendant upon the issue of impotency, even though not for the purpose of impeachment, and we think the court properly overruled the defendant’s motion.

Neither was it error to prove by cross-examination of defendant that he had visited the house of Clara Hussv. He had testified that he was impotent, and relative to that question it was the right of the State to prove his behavior in that respect by cross-examination. That he visited 'such a place, in connection with his admission to Jenkins as to his intentions, was proper cross-examination, as a circumstance tending to discredit his testimony as to his impotency at the time of the alleged offense.

, II. Doctor Hall, as a witness for the defendant, was asked to state whether in his opinion the defendant could have had sexual intercourse with the prosecuting witness. ' An objection to this question was sustained by the court, and defendant complains of such ruling as error. The court gave as a reason for the ruling that the Doctor had stated that he had paid but little attention to the girl, and was hardly qualified to answer the question, adding, “unless he further qualifies himself the objection will be sustained.” The witness' did not further qualify, as suggested by the court, and we think the court correctly sustained the objection.

III. One ground of the motion for a new trial is that the verdict is against the weight of the evidence and is not supported by the evidence. This assignment calls for a consideration of the testimony upon which the verdict of guilty rests. In the discharge of this duty we are not unmindful of the settled rule of appellate procedure that it is the province of the jury to weigh the testimony and to determine the facts. Nevertheless, when the question of the sufficiency of the testimony is properly presented, an appellate court cannot escape responsibility by shifting it to the jury. The heinousness of the crime charged herein and the strong feeling against one accused of such crime, under the surrounding facts of this case, independent of the question of guilt or innocence, have such an influence against the person on trial, that courts, in a spirit of caution horn of experience, closely examine and scrutinize the testimony upon which a conviction has been secured.

The defendant was charged with and put upon his trial for two offenses, namely, rape and defiling a female under his care and protection. While the former, on account of the age of the prosecutrix, did not require proof of force, yet the only testimony for the State upon that issue tended'to show a ravishment by force and, therefore, any testimony competent in corroboration of the prosecutrix in forcible rape was competent in this case. Upon this theory' alone the State was permitted to introduce evidence tending to prove that the prosecutrix made complaint promptly after the commission of the crime, and although the conviction was not upon the count charging rape, both offenses were submitted to the jury upon the testimony, and we think its sufficiency to sustain the verdict should be judged by the .rules applicable in rape cases.

In the recent case of State v. Tevis, 234 Mo. l. c. 284, this court, speaking through Baown, J., announced the law upon the question of corroboration of the prosecutrix in such cases, as follows: ££A conviction in cases of either incest or rape may be had upon the uncorroborated evidence of the prosecutrix, but when the evidence of such prosecutrix is of a contradictory nature, or when applied to the admitted facts in the case, her testimony is not convincing, but leaves the mind of the court clouded with doubts, she: must be corroborated, or tbe judgment cannot be sustained. [State v. Goodale, 210 Mo. 275, l. c. 290; State v. Brown, 209 Mo. 413.]”

The same subject is discussed, and the rules by which courts should be guided are set forth, in Kelley’s Crim. Law & Prac., Sec. 541, in the language following: “The credibility of the witness, and whether her statements be true or not, must be left with the jury. If her reputation for chastity and morality be good, and she made complaint at her first opportunity, or shortly after the fact, and the accused fled, any such facts would go to strengthen her testimony. On the other hand, if her reputation for truth, morality or chastity be bad; if her testimony be unsupported; if she concealed the injury for any considerable time; if she might have been heard, and yet made no outcry, these facts would tend to show that her testimony is false or feigned. So, if she voluntarily continue friendly intercourse with the accused after the fact without complaining against him, this would tend to render her story improbable. The State may not only show any marks of violence seen upon her person to corroborate her story, but' may prove that she made complaint recently after the alleged offense.”

There is such an utter absence of testimony corroborative of the prosecuting witness, in the record before us; so many contradictory statements in her testimony given at the trial, as compared with that given in her deposition; such improbability in her version of the crime; and her reputation for truth and veracity and for morality was so seriously impeached by women who well knew her and her reputation in Kansas 'City, while no testimony was offered to sustain it, that we are not willing to let a verdict stand for so grave a crime, upon such unsatisfactory evidence. We shall not dwell upon the weakness of the case against the defendant by going over the testimony in detail. We think it sufficient to say at this time that the decision of the case has been withheld because of the thorough and most careful examination and re-examination we have made of the testimony. We are not disposed to end the case by reversing the judgment and discharging the defendant, for the reason that upon a retrial the State may be able to introduce testimony in corroboration of the prosecutrix, but we do not hesitate to say that .unless a stronger case is made against the defendant upon a second trial, an instruction directing a verdict should be given.

Other errors are assigned, which we have examined and found to be without merit, but in view of the disposition made of the.case we do not deem it necessary to discuss them.

The judgment is reversed and the cause remanded.

Brown, P. J., and Ferriss, J., concur.