author: BURGESS, P. J.

text:
    THE STATE v. KOSKY, Appellant.
    Division Two,
    November 21, 1905.
    1. APPEAL: Criminal Case: Affidavit. On the authority of State v. Smith, 190 Mo. V06, it is held that an affidavit is not necessary for an appeal in a criminal case.
    2. STOLEN PROPERTY: Description: Cigars: Information. While property charged to have been stolen should be described with as much certainty as the circumstances will permit, yet a minute description is not necessary. And it is held in this case that the description, in the information, of the stolen goods as “twelve hundred cigars of the value of forty-two dollars,” was sufficient to apprise the defendant of what property he was charged with receiving.
    3. RECEIVING STOLEN GOODS: Information. The information in this case, the first count of which charged defendant with receiving stolen goods, knowing them to have been stolen, is held sufficient, and' not vulnerable to the objection that it did not inform defendant of the nature and cause of the accusation.
    4. -; Evidence: Sufficiency. The evidence in this case is ex- . amined and held sufficient to justify a conviction of receiving stolen goods, knowing them to have been stolen.

      Appeal from St. Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge.
    Affirmed.

      8. 8. Ba»ss for appellant.
    (1) The motion to quash the information, or each count therein, should have been sustained, because: (a) The first count of the information (buying and receiving stolen property, knowing it to be stolen) fails to describe the property with sufficient certainty. Clark’s Crim. Proc., sec. 92. (b) Said first count charges two separate and distinct crimes in the one count. R. S. 1899, sec. 1916; State v. Thierauf, 167 Mo. 429. (2) The instruction prayed for by the defendant at the close of the State’s case in the nature of a demurrer should have been given. The evidence did not disclose facts sufficient to warrant submission of the case to the jury upon either the count for buying and receiving property, knowing it to be stolen, or the count for larceny. The evidence does not support the allegations of either count of the information. The crime, if any has been established by the evidence, is an offense under, and a clear violation of section 1930, Revised Statutes 1899, the obtaining of property by personating another.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State:
    (1) The information, which was properly verified, was sufficient, and was even more complete than one that has received the approval of this court. State v. Fink, 186 Mo. 50; Rí. S. 1899, sec. 1916. (2) As to the sufficiency of the evidence, it may be said that the jury believed the Fleming boy, as they had a right to do, and his testimony showed conclusively that defendant was guilty. State v. DeWitt, 152 Mo. 569; State v. Peebles, 178 Mo. 486; State v. Flora, 109 Mo. 297; State v. Anderson, 84 S. W. 949 ; State v. Vickery, 19 Tex. 326; 1 Bishop on Orim. Law, sec. 207.
   BURGESS, P. J.

At the April term, 1904, of the circuit court, city of St. Louis, under an information filed by the circuit attorney, which information was in two counts, the first count charging defendant with receiving stolen property, knowing it to have been stolen, and the second charging him with grand larceny, the defendant was found guilty on the first count of the information, and his punishment assessed at imprisonment in the penitentiary for a period of two years. His motions for a new trial and in arrest of judgment having been overruled, defendant appeals.

The State’s evidence tended to show that the defendant was the proprietor of a pool-hall at No. 1418, Cass avenue in the city of St. Louis, and that in connection with that business he also sold cigars; that a boy named Willie Fleming had been in the habit of visiting the place for about a year, and that defendant suggested to him that he could easily make some money; that defendant entered into an arrangement with the boy whereby, he, the defendant, was to telephone to Peter Hauptmann Tobacco Company for some cigars and say that they were wanted by the Wolff-Wilson Drug Company and Fleming was to call for the cigars and bring them to the defendant’s place of business. In consonance with this arrangement, the defendant went to the Eepublic building and telephoned for the cigars, representing to the Peter Hauptmann Tobacco Company that they were for the Wolff-Wilson Drug Company, and that a boy would soon call for some of them. Defendant then told Fleming to go and get the cigars, and that if he should be required to sign any order or receipt for the cigars he should be careful to sign some such name as Myers, King or Hagan. The boy went for the cigars about 2 p. m., on the 25th day of February, 1904, and got six hundred Cremos and six hundred Fontellas, signed a paper, using the name Walter King, and took the cigars to defendant’s pool-room. Defendant then paid the boy $8.50. The police afterwards arrested the boy for some other offense, and he told them of this transaction, whereupon the police went to defendant’s residence, which was about two blocks from Ms poolroom, arrested him and found some of the cigars in a wardrobe in the front room of his dwelling. On being asked about the cigars he had bought from the boy, defendant admitted that he had them, and told the officers that some of them were in the wardrobe in the front room and some in the showcase at Ms pool-room. He stated that he had purchased the cigars from the boy and denied having obtained them in the way related by Fleming.

The manager for Wolff-Wilson Drug Company testified that no order for cigars was given that day. Two of the shipping clerks employed by the Peter Hauptmann Tobacco Company testified that the Fleming boy called at the said company’s place of business and obtained twelve hundred cigars; that the boy claimed to represent the Wolff-Wilson Drug Company, and signed the name of Walter King, and that the cigars were worth $32 per thousand.

On behalf of defendant, the evidence tended to show that he enjoyed a good reputation for honesty; that he purchased these cigars from the Fleming boy in two lots, and paid him $12 the first time and $5 the second.time, and had no knowledge whatever that any of them were stolen; that the boy represented to him that he was selling cigars for a firm which was trying to sell out, and, therefore, sold them at a reduction. The evidence further tended to show that this Fleming boy had obtained cigars from other houses in St. Louis, under similar cimcumstances, and sold them to proprietors of saloons and pool-rooms, and that at the time of the trial the boy was under indictment for larceny and obtaining goods by false pretenses.

The court instructed the jury as follows:

“1. If you believe and find from the evidence beyond a reasonable doubt that at the city of St. Louis and State of Missouri, on or about the 25th day of February, 1904, or at some time prior thereto, the property mentioned in the information herein, that is to say, twelve hundred cigars, were unlawfully and fraudulently stolen, taken and carried away from the possession of the Peter Hauptmann Tobacco Company, and that the said Peter Hauptmann Tobacco Company was then a corporation, by some person other than the defendant, Frank Kosky, with the intent on the part of the person so taking, stealing and carrying away the same unlawfully and fraudulently to convert said cigars to his own use and to deprive the said Peter Hauptmann Tobacco Company of the same permanently without its consent, and that the cigars and property so stolen, taken and carried away were of the value of $30.00' or more and were the property of the said Peter Hauptmann Tobacco Company; and you further find that after the said cigars and property had been so stolen, taken and carried away as aforesaid by some person other than the defendant, the said defendant, at the city of St. Louis and State of Missouri, on or about the 25th day of February, 1904, unlawfully, fraudulently and wrongfully did receive said property into his, the defendant’s possession, knowing at the time he so received such cigars and property that it was stolen; and that he received the same with the unlawful and fraudulent intent to or for the purpose of aiding the thief or with the unlawful and fraudulent intent of permanently depriving the owner of its said property without its consent; and you further find from the evidence that the property so received by the defendant was of the value of thirty dollars or more; you will find the defendant guilty as charged in the first count of the information and assess his punishment at imprisonment in the penitentiary for a term of not fewer than two years, and not more than five years, and unless you so find the facts you will acquit the defendant of the said charge of receiving stolen property.

“2. By the term ‘knowing’ that the property was stolen is not meant absolute, personal and certain knowledge on the part of the defendant that the cigars mentioned in the information had been stolen, hut such knowledge and information in his possession at the time he so received the same as would put a man of ordinary prudence or exercising ordinary care on his guard, and would cause such a man to believe and to be satisfied that the property had been stolen.

“3. You are further instructed that if you find from the evidence that the twelve hundred cigars mentioned in the information were on the 25th day of February, 1904, owned by and in the possession of the Peter Hauptmann Tobacco Company and that the said Peter Hauptmann Tobacco Company was then a corporation, and that on said day at the city of St. Louis and State of Missouri, the defendant, Frank Kosky, acting in conjunction with the witness, William Fleming, unlawfully and fraudulently did obtain possession of said cigars from the said Peter Hauptmann Tobacco Company by unlawfully, falsely, designedly and fraudulently representing to the said Peter Hauptmann Tobacco Company that the said cigars were then ordered by the Wolff-Wilson Drug Company, and that the said William Fleming was then and there authorized by the said Wolff-Wilson Drug Company to represent it and receive said cigars for it; when in fact said cigars were not then ordered by said Wolff-Wilson Drug Company and the said William Fleming was not then authorized to represent the said Wolff-Wilson Drug Company and receive said cigars for it; and that the defendant then and there and thereby unlawfully and fraudulently did obtain possession of the cigars in.question of and from the said Peter Hauptmann Tobacco Company and that the same were then and there unlawfully and fraudulently taken and carried away by tbe defendant, so acting, from tbe possession of tbe said Peter Hauptmann Tobacco Company in. the manner aforesaid, with the intent on the part of the defendant when so taking and carrying away said cigars unlawfully and fraudulently to convert the same to his own use and to deprive the owner of the said cigars permanently without its consent, and you find that said cigars so taken, stolen and carried away were of the value of thirty dollars or more, then you should find the defendant guilty of grand larceny as charged in the second count of the information, and assess his punishment at imprisonment in the penitentiary for a term of not less than two years, nor more than five years, and unless you so find the facts you should acquit the defendant of the charge of grand larceny in the second count of the information.

“4. You are instructed that under the information, the evidence and these instructions, you may convict the defendant of grand larceny as charged in the second count of the information and acquit him of the charge of receiving stolen property, contained in the first count of the information, or you may acquit him of grand larceny, as charged in the second count, and convict him of receiving stolen property, as charged in the first count, or you may acquit him of both charges, according as you may find the facts to be.

“5. You are further instructed that the information contains the formal statement of the charge, but is. not to be taken as any evidence of defendant’s guilt. The law presumes the defendant to be innocent, and this presumption continues until it has been overcome by evidence which establishes his guilt to your satisfaction and beyond a reasonable doubt; and the burden of proving his guilt rests with the State. If, however, this presumption has been overcome by the evidence and the guilt of the defendant established to a moral certainty and beyond a, reasonable doubt, your duty is to convict. If, upon consideration of all the evidence, you have a reasonable doubt of the defendant’s guilt, you should acquit; but a doubt to authorize an acquittal on that ground ought to be a substantial doubt, touching the defendant’s guilt, and not a mere possibility of his innocence.

“You are further instructed that the previous good character of the defendant, if proved by the evidence to your reasonable satisfaction, is a fact in the case which you should consider in passing upon his guilt or innocence, for the law presumes that one whose character is good is less likely to commit crime than one whose character is not good. But if all the evidence, including that which has been given touching the previous good character of defendant, shows him to be guilty, then his previous good character cannot justify, excuse, palliate or mitigate the offense.

“You are further instructed that you are the sole judges of the credibility of the witnesses and of the weight to be given to their testimony. In determining such credibility and weight you will take into consideration the character of the witness, his manner on the stand, his interest, if any, in the result of the trial, his relation to or feeling toward the defendant or the Peter Hauptmann Tobacco Company, and the probability or improbability of his statements, as well as all the facts and circumstances given in evidence. In this connection you are further instructed that if you believe that any witness has knowingly sworn falsely to any material fact, you are at liberty to reject all or any portion of such witness’s testimony.

£ £ The defendant is a competent witness in his own behalf, but the fact that he is a witness testifying in his own behalf, and the interest he has at stake in the case may be considered by you in determining the credibility of his testimony.

£ The court instructs the jury that if they find- and believe from the evidence that the defendant bought or received the cigars in question in good faith from one having possession and without knowledge or reason to believe that they were stolen, you must acquit the defendant of the charge of having bought or received them knowing them to be stolen.

“The court instructs the jury that they are at liberty to convict the defendant on the uncorroborated testimony of an accomplice alone if they believe the statements as given by said accomplice in his testimony are true in fact and sufficient in proof to establish the guilt of the defendant; but the jury are instructed that the testimony of an accomplice in crime, when not corroborated by some person or persons not implicated in the crime, as to matters material to the issues, that is, matters connecting the' defendant with the commission of the crime charged against him and identifying him as the perpetrator thereof, ought to be received with great caution by the jury, and they ought to be fully satisfied of its truth before they should convict the defendant on such testimony. ’ ’

Thereupon the defendant prayed the court to instruct the jury as follows:

‘ ‘ The court instructs the jury that if the owner of the cigars parted with the property and the possession of the cigars in question you must acquit the defendant. ’ ’

Which said instruction the court refused, to which action of the court in refusing said instruction defendant, by his counsel, 'then and there duly excepted.

The jury returned a verdict finding the defendant guilty of receiving stolen property of the value of thirty dollars or more, knowing the same to have been stolen, as charged in the first count of the information, and assessing his punishment at imprisonment in the penitentiary for two years.

It appears from the record that before the trial was entered into defendant filed a motion to quash both counts of the information, which was overruled, and defendant insists that the court, in so doing, committed error.

The information, leaving off the formal parts, is as follows:

“W. Scott Hancock, assistant circuit attorney in and for the city of St.- Louis aforesaid, within and for the body of the city of St. Louis, on behalf of the State of Missouri, upon-his official oath, information malms as follows:

“That Frank Kosky, on or about the twenty-fifth day of February, in the year one thousand nine hundred and four, at the city of St. Louis aforesaid, twelve hundred cigars of the value of forty-two dollars, the goods and personal property of the Peter Hauptmann Tobacco Company, a corporation, then lately before feloniously stolen, taken and carried away from the said Peter Hauptmann Tobacco Company, a corporation as aforesaid, with the intent on the part of the thief to permanently deprive the owner of the use thereof feloniously and fraudulently did from the said thief buy, receive, have and take into his possession, with the intent and for the purpose of aiding the said thief and with the fraudulent intent to deprive the owner of the use thereof, the said Frank Kosky then and there well knowing the said goods and personal property to have been stolen, taken and carried away, with the intent on the part of the thief as aforesaid to permanently deprive the owner of the use thereof; contrary to the form of the statute in such case made and provided and against the peace and dignity of the State.

“And so the said "W. Scott Hancock, assistant circuit attorney as aforesaid, upon his official oath aforesaid, information further makes as follows:

“That Frank Kosky, on or about the twenty-fifth day of February, in the year one thousand nine hundred and four, at the city of St. Louis aforesaid, twelve hundred cigars of the value of forty-two dollars, the goods and personal property of the Peter Hauptmann Tobacco Company, a corporation, then and there unlawfully and feloniously did steal, take and carry away from the owner thereof, with the intent then and there to deprive the owner of the use thereof and to convert the same to his own use, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State.”

The State has filed in this court a motion to dismiss the appeal in the case upon the ground that defendant failed and neglected to file an affidavit for appeal in the circuit court. Since the motion was filed this same question has been passed upon by this court in the case of State v. Smith, 190 Mo. 706, in which it is ruled that no affidavit for appeal is necessary in criminal cases.

There are several objections urged against the first count of the information, the first of which objections is that the information fails to describe with sufficient certainty the cigars which defendant is charged with receiving, knowing them to be stolen. As a general rule, property alleged to have been stolen should be described with as much certainty as the circumstances connected with the theft will permit, but a minute description is not necessary. The description must be sufficient, however, to apprise the defendant of what property he is charged with stealing.

In the case of Commonwealth v. Campbell, 103 Mass. 436, defendant was indicted for receiving stolen goods, described therein as thirty yards of cloth of the value of one dollar and twenty cents a yard; thirty yards of cloth, of the value of one dollar and four cents each yard; fifteen yards of cloth, of the value of one dollar and thirty cents each yard; one hundred yards of cloth, of the value of one dollar each yard. It was held that the description of the stolen goods, “as so many yards of cloth of a certain value was sufficiently definite, and was supported by proof that they were like pieces of any kind of cloth not manufactured into a different shape.”

In Commonwealth v. Shaw, 145 Mass. 349, the defendant was charged in an indictment with embezzling thirteen hundred and twenty pairs of shoes, each pair of the value of one dollar, of the property, etc. Defendant moved to quash the indictment because there was no sufficient allegation or description of the property alleged to have been stolen. Held, the description was sufficient, and that a description of a chattel by its proper and special name is sufficient.

No minute description of the cigars could well have been given, and, under such circumstances, to describe them as twelve hundred cigars of the value of forty-two dollars was sufficient.

Nor does said first count charge two separate and distinct offenses, as claimed by defendant. The language of the statute (sec. 1916, R. S. 1899) is: “Every person who shall buy, or in any way receive, any goods,” etc. The information is in the exact language of the statute, and is not vulnerable to the objection that it does not inform the defendant of the cause and nature of the accusation against’ him. There is no merit in the other objections to the first count, and it is, therefore, unnecessary to discuss them. There are also objections urged against the second count of the information, but as defendant was not convicted on that count, it would appear to be unnecessary and superfluous to consider them.

It is said for defendant that the instruction prayed for by.him at the close of the State’s case, in the nature of a demurrer to the evidence, should have been given. The contention is that there was no evidence to support the verdict, and that if any crime had been established by the evidence, it was under section 1930, Revised Statutes 1899, for obtaining property by personating another. But in this case Fleming did not obtain the cigars by personating another, but by falsely and fraudulently representing to Peter Hauptmann Tobacco Company that he had come for cigars which had been ordered by the Wolff-Wilson Drug Company, which order oh the said tobacco company defendant himself had made, over the telephone, in the name of the Wolff-Wilson Drug Company, without their knowledge or consent. If Fleming personated any person, who was it? It was not Walter King, whose name he signed when he received the cigars, for that name was fictitious. It was not the Wolff-Wilson Drug Company, for he did not claim or pretend to be personating them.

It is not infrequently very .difficult to determine from the facts in a given case whether the offense be one of larceny or of obtaining goods under false pretenses, but the distinction drawn in the recent decisions of this court, and which seem to be supported by both reason and authority is, that where the owners of property is, by false and fraudulent pretenses, induced to deliver personal property with the intention of parting with it altogether, that is, by giving the title as well as the possession, the offense is that of false pretenses. On the other hand, if the possession is parted with, and not the right of property, the offense is larceny. [State v. Mintz, 189 Mo. 268; State v. Buck, 186 Mo. 15; State v. Copeman, 186 Mo. 108.] Mr. Wharton says: “Suppose A goes to B, and says, ‘I am C, sell me. these goods,’ and B delivers the goods to A, believing A to be C, this being an essential incident of the contract; does any property pass to A? The better view is in the negative, there being no contract between A and B. If this be correct, then it is larceny in A to take goods on this false personation; though there are authorities to the effect that the case is not larceny but false pretenses. If the pretense be, not false personation, but false statement of means, then, as there is a contract of sale, the case is false pretense and not larceny. And where A says, ‘I am sent by C to carry the goods to him,’ which is false, and thus obtains only possession of the goods, this is larceny in cases in which B intends to part only with the possession of the goods to A. Bnt here we encounter a subordinate distinction. Suppose A, pretending to be C, goes to B, and fraudulently obtains from B certain goods of C, which are in B’s hands as bailee. Is this larceny? It certainly is, because B has no intention of passing the property in the goods to A, or to any one, he (B) considering himself to have no property in the goods to pass. This distinction has been vindicated in Massachusetts in the following case: ‘Sanderson had left his watch at a, watchmaker’s to be repaired, and the defendant went to the shop, pretending to be Sanderson, asked for the watch, paid for the repairing, and took the watch with a felonious intent. ’ ‘These acts,’ said Chapman, J., ‘constitute larceny at common law. The case is like that of Rex v. Longstreeth, 1 Mood. C. C. 137. The defendant in that case went to a carrier’s servant, and obtained from him a parcel by falsely pretending to be the person to whom it was directed. It was held to be larceny, because the servant had no authority to deliver it to him, so that no property passed to him, but the mere possession feloniously obtained. So in this case the watchmaker had no authority to deliver the watch to the defendant, and the latter obtained no property in it, not even the qualified property of a bailee, but a mere felonious possession, which is the essence of the crime of larceny.’ ” [Wharton’s Crim. Law (10 Ed.), vol. 1, sec. 888, ant cases cited.] In Harris v. State, 81 Ga. 758, it is said: “The rule is, that ‘if one, meaning to steal another’s goods, fraudulently prevails on the latter to deliver them to him, under the understanding that the property in them is to pass, he commits neither larceny nor any other crime by the taking, unless the transaction amounts to an indictable cheat. But if, with the like intent, he fraudulently gets leave to take possession only, and takes and converts the whole to himself, he becomes guilty of larceny; because, while his intent is thus to appropriate the property, the consent which he fraudulently obtained covers no more than the possession.’ [1 Bishop’s Crim. Law, sec. 583, and authorities there cited.] In this case, Harris fraudulently represented to High & Ryan’s Sons that he was the agent of Moore & Marsh. They did not sell him the goods, nor did they intend the title to go into Harris; but they simply delivered him the custody of the goods, to be delivered by him to Moore & Marsh. He having converted the proceeds of the sale of the boxes to his own use, he was guilty of larceny. The title still remained in the vendor. Harris got the custody of the goods wrongfully and fraudulently.”

In State v. Lindenthall, 5 Rich. L. R. (S. C.) 237, it was ruled that a person who obtained the possession of goods by consent of the owner for one purpose, such as hiring or carrying, with the intent to steal, and consummated that intention partly or entirely by converting the goods to his own use, is beyond doubt guilty of larceny. In State v. Mintz, 189 Mo. l. c. 288, it is said that, as "Rector obtained the goods from the railroad company for a particular purpose, that of delivery to the shoe company, he acquired no sort of title or ownership to the property, but a mere bare possession. The authority of the railroad company in respect to the goods in dispute was limited; they were only authorized to deliver the possession to the consignee or its authorized agents.”

In the case at bar there can be no kind of pretence that the Peter Hauptmann Tobacco Company intended to part with the title to the cigars, when they were delivered to Fleming, the purpose of the delivery being entirely conditional; that is, that they were to be taken to and delivered to the 'Wolff-Wilson Drug Company. Upon the other hand, it is entirely clear from the evidence that Fleming intended to steal the cigars, and by fraud got leave to take possession only, and then took them and converted them to his own use, because while his intent was thus to get possession of and appropriate the property, the consent which he fraudulently obtained covered no more than the possession. The tobacco company did not sell him the cigars, nor did they intend that the title to them should pass to him, but they simply delivered him the custody of the cigars, to be delivered by him to the Wolff-Wilson Drug Company. He, having sold and converted the cigars to his own use, was guilty of larceny. The title still remained in the tobacco company. Fleming got the cigars wrongfully and fraudulently.

There was evidenceupon the part of the State which tended to show that defendant planned the larceny, and was the projector and primary cause. This being so, defendant’s counsel contends that he was guilty of stealing the goods, and expresses much surprise at his conviction for receiving stolen goods, and says that “the curious anomaly is presented of the conviction of a man for receiving from himself goods stolen by him.” If the evidence was all to the effect that defendant stole, or was a party to the theft, there would be merit in this contention, but it was not. Defendant testified that he had nothing whatever to do with stealing the cigars, but that he did thereafter buy them from and pay Fleming for them, and that Fleming delivered them to him. The jury, upon this branch of the case, must have believed the defendant, and they found him guilty of receiving stolen property, knowing it to be stolen, and there was substantial evidence to sustain this finding.

The only question remaining is as to the sufficiency of the evidence to support the verdict. The character and habits of Fleming, with which defendant was familiar, would, we think, have put any prudent man upon inquiry as to how he acquired them when he offered to sell, and defendant was wanting to buy, twelve hundred cigars. Especially is this true, when the boy was a common loafer and lounger, without means or property, and offered to sell and did sell to defendant, the cigars for so ranch less than their value. He must have known or believed they were stolen.

The instructions, as applicable to the first count in the information, are free from objection. It is unnecessary to pass upon the others, as they are not involved in the consideration of this case.

Finding no reversible error in the record, the judgment is affirmed.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    THE STATE v. HAYS CRITTENDEN, Appellant.
    Division Two,
    November 21, 1905.
    1. MURDER: Sufficiency of Evidence. The evidence in this case, which was a prosecution for murder in the first degree, is examined, and held sufficient to justify the verdict finding defendant guilty of murder in the second degree.
    2. -: Refusing Defendant’s Instruction: Covered by Others. Where the instructions given for the State fully cover the law invoked in an instruction requested by defendant, no error is committed in refusing defendant’s instruction.
    3. APPEAL: Criminal Case: Affidavit. Following State v. Smith, 190 Mo. 706, it is held that the statute does not require an affidavit as a condition precedent to' the granting of an appeal in a criminal case.
    Appeal from St. Louis City Circuit Court. — Ho». Daniel G:Taylor, Judge.
    Affirmed.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General for the State.
    The evidence was sufficient to send the case to the jury, and fully sustains the verdict. State v. Pranke, 159 Mo. 535; Greenleaf on Evidence, sec. 440; Starkie on Evidence (10 Ed.), 173; State v. Duncan, 116 Mo. 288; State v. Kaiser, 124 Mo. 651; State v. Sanford, 124 Mo. 487.
   GANTT, J.

On November 9, 1903, the grand jury of the city of St. Louis returned an indictment against this defendant, charging him with murder in the first degree of Hugh J. McCartney on the 10th day of May, 1903, in the city of St. Louis. As the. indictment is in all respects sufficient and in a form often approved by this court, it is unnecessary to reproduce it in full. On November 17, 1903, the defendant was duly arraigned, pleaded not guilty and the case was continued. On March 18, 1904, defendant was put upon his trial and convicted of murder in the second degree, and his sentence assessed at ten years in the penitentiary. Motions for new trial and in arrest of judgment were duly filed, considered by the court and overruled, and an appeal was granted to the defendant; no affidavit for appeal was filed before the same was allowed.

On the part of the State the evidence tended to show that in May, 1903, and prior to the difficulty in which McCartney was killed, the Shatter Wrecking Company was engaged in making an extensive excavation on Clark avenue between Tar gee and Fifteenth streets in St. Louis, and the defendant, Crittenden, William Washington, Philip Scott and a number of others were employed by said company in doing said work at that time. The men just named were a portion of what was called the night shift, and worked from seven p. m. till six a. m. It was the custom of the men to stop work and eat a meal every night at twelve o ’clock, and to begin work again at one o’clock. During this midnight recess on May 10th, a number of these men, mostly negroes, indulged in drinking intoxicating liquor; as a result of their dissipation that night, most of them had fallen asleep. About five minutes before one o ’clock, Mr. Shafter fired his pistol for the purpose of waking them up to go to work. Mr. Shafter was in charge of the work. Hugh J. McCartney was on that night and for some five months prior thereto had been a police officer of the city of St. Louis. He was on duty that night, and his heat was on Clark avenue, he was dressed in his uniform and was recognized as an officer by the men on this work. When Shafter fired the pistol, McCartney heard the shot and came up and inquired who fired it. Scott, one of the workmen, told him, and thereupon McCartney began talking to Shafter about firing in the city. While he was talking to Shafter, the defendant Crittenden, Washington and others commenced to quarrel with McCartney and to call him vile names, saying, “If he was a negro you would arrest him and would not give him a chance.” Washington had a pistol in his hand at that time, hut no one seemed to know just where he got the same. McCartney commanded them to stand hack, saying that they had nothing whatever to do with it, and addressing himself to Washington told him to put up his gun and go into the house. As the men refused to stand hack, hut crowded about him and persisted in folloAving him, using rough language to him, McCartney struck at them and hit Washington andknocked him down. Washington arose to his feet, drew his pistol and shot at McCartney and the latter returned the shot. The defendant Crittenden then ran into the house, which was very near by, and came out of a side door Avith a pistol in his hand, and stopped in a passway between two buildings and fired twice at McCartney; immediately after the firing of these two shots, McCartney ran east on Clark avenue, and the defendant followed him, still carrying his pistol. At the time the defendant fired the two shots at McCartney, the latter was facing the defendant with his right side turned towards the defendant. Police officer Hough heard the shooting and ran towards McCartney; he saw the latter run east on Clark avenue, followed by a crowd of negroes. McCartney ran into a saloon and then into a back yard. Tbe police wagon was procured and be was taken to tbe dispensary and tbence to tbe hospital. While defendant Crittenden was in tbe bouse tbe difficulty between McCartney and Washington bad ended in tbe death of Washington. In tbe melee it appears that tbe defendant was wounded, as there was a bruise on tbe side of bis bead. After McCartney fled defendant returned to tbe same bouse in which be bad procured tbe pistol, still carrying tbe pistol in bis band. Tbe defendant was shortly afterwards arrested by officer Lang. At tbe time of making tbe arrest Lang found tbe defendant in bed and tbe wound on tbe right side of bis bead bleeding. At tbe city hospital an examination disclosed tbe fact that McCartney was wounded in tbe abdomen, tbe ball entering a little below the navel and to tbe right. Tbe bullet perforated tbe small bowel eight times. An operation was performed by tbe surgeons at tbe hospital, but in spite of their efforts McCartney died from the wounds inflicted aforesaid by tbe defendant on tbe 31st day of May. No objections were taken or exceptions saved to tbe evidence on behalf of tbe State. Tbe defendant offered no evidence, and at tbe close of tbe State’s case moved for an acquittal in tbe form of a demurrer to tbe evidence, which was overruled. Tbe court instructed tbe jury of its own motion and also gave instructions at tbe instance of tbe circuit attorney. No exceptions were saved to tbe giving of the State’s instructions, or to those given by tbe court of its own motion. Tbe defendant asked one instruction in addition to bis demurrer to the evidence, which was in tbe following words: “If you find that tbe defendant fired no shot or shots at tbe deceased, Hugh McCartney, but you have a reasonable doubt as to whether defendant’s bullet struck and killed said Hugh McCartney, then you should give tbe defendant tbe benefit of such doubt and acquit him,” which said instruction tbe court refused, and tbe defendant saved bis exception to the action of tbe court.

I. The defendant is not represented by counsel in this court. No assignments of error have ‘been filed and no brief in support thereof, but, as in duty bound, we have examined the record to see if any reversible error was committed against the defendant. As already said, the indictment is sufficient. It is identical with the indictment in the case of State v. Wilson, 172 Mo. 420, which was approved by this Court in Banc, and was followed in State v. Gray, 172 Mo. 430.

II. The evidence was sufficient to send the case to the jury and fully sustains the verdict. Without any cause or provocation whatever, the defendant engaged in an assault upon the police officer of the city of St. Louis, who was at the time engaged in doing his duty as such. AVhen that officer resisted, the defendant ran into the house and procured a pistol and concealed himself in a passageway between the two houses, and from this place fired two shots at the officer, one of which, the testimony tends to show, accomplished the felonious purpose of the defendant to kill and murder the officer. While it is true that the officer had engaged in a combat with William Washington, and that the latter was killed by the officer, up to the time he was shot by the defendant the officer showed no signs of retreat nor any evidence of having been wounded by Washington. The combat between Washington and the deceased McCartney had ended by the death of Washington while the defendant was in the house procuring his revolver. Immediately after the defendant fired his two shots at McCartney, McCartney gave up all idea of continuing the conflict and began to run east on Clark avenue, the defendant pursuing the wounded officer until another officer came to the rescue. Taking all the evidence in this connection into consideration with that of the physican as to the wound which caused officer McCartney’s death, it is apparent that the jury had ample testimony to warrant them in finding that the defendant fired the fatal shot which caused the death of the officer, and in finding that the shot fired by "Washington did not cause his death, independently of the question of the liability of the defendant for the death of the officer if Washington’s shot in fact inflicted the fatal wound and the defendant was at the time aiding, abetting and assisting in the unlawful assault upon the officer. [State v. Duncan, 116 Mo. 288; State v. Kaiser, 124 Mo. 651.]

III. There was no error in refusing the defendant’s demurrer to the evidence at the close of the State’s case; as before remarked, the evidence was amply sufficient to sustain a conviction if believed» by the jury, as it evidently was. The sixth and seventh instructions given for the State were as follows:

“6. And you are further instructed that every person that is present at the commission of the crime, knowing the intent of and willfully and unlawfully and intentionally aiding, abetting and assisting or for the purpose and with the intent of so aiding, abetting and assisting, if necessary, the personwho actually commits the crime, is liable as a principal and equally guilty with the one actually committing such crime; but mere presence at the commission of a crime does not render a person liable as a principal or otherwise.

“7. You are further instructed that even though you believe from the evidence that Hugh J. McCartney was shot and killed at the time and place charged in the indictment and defendant was then and there present and did then and there shoot at and try to kill said deceased, yet if you believe the said McCartney was struck and murdered and died from the effects of a wound made by a bullet fired from a pistol in the hands of some person other than defendant, you will acquit defendant, unless you believe that he and the person who actually shot and killed said McCartney were then and there acting together with a common intent and purpose and design, or that defendant was then and there present knowingly and intentionally aiding, assisting and abetting, or for the purpose and with the intent of aiding, assisting and abetting, if necessary, such other person in the killing of said deceased.”

These instructions fully covered the law invoked by the defendant in his refused instruction, and therefore no error was committed in refusing'said instruction. The instructions submitted to the jury by the court fully covered every phase of the law arising upon the evidence. These instructions submitted to the jury the question of the defendant’s guilt of murder in tbe first degree, murder in the second degree, and manslaughter in the fourth degree, and were exceedingly liberal to the defendant, and left him no ground of complaint. The court also instructed on the presumption of innocence, the burden of proof and reasonable doubt, and also the right of self-defense and alibi. Upon the whole record we find no error committed by the court in the trial of this case and the judgment must be and is affirmed.

IV. As in a number of other cases argued and submitted at this term, the Attorney-General filed a motion to dismiss the appeal because the appellant failed to file an affidavit for an appeal, but for the reasons given in State v. Graham Smith, 190 Mo. 706, we hold that motion was not well taken, because the statute (sec. 2696, R. S. 1899), does not require as a condition precedent to an appeal by defendant in a criminal case the filing of an affidavit for an appeal. All that is required is that he shall pray for an appeal during the term of the court at which he is convicted, and nowhere in our criminal code is his prayer for an appeal required to be in the form of an affidavit such as is prescribed in civil causes.

Accordingly, we have considered the appeal of the defendant in this case, and for the reasons already given the judgment is affirmed.

Burgess, P. Jand Fox, J., concur.


text:
    THE STATE v. SPERITUS, Appellant.
    Division Two,
    November 21, 1905.
    1. APPEAL: Criminal Case: Affidavit. Following State v. Smith, 190 Mo. 706, it is held that in a criminal case no affidavit for appeal is necessary.
    2. EVIDENCE: Rebuttal: Character of Witness. Defendant testified in his own behalf that Vaughn, a witness for the State, had worked for him some time before the alleged offense, and that he found that Vaughn had been stealing from him (defendant) and that he paid him off and told him he had no more work for him. Held, that by this testimony the character of Vaughn was assailed, and that the State was not obliged to object to its admission, or move to strike it out, or ask the court to limit its effect and purpose, but it had the right, in rebuttal, to meet it by the countervailing testimony of Vaughn that he had never been arrested for stealing, and by another witness, that Vaughn had a good reputation for honesty.
    3. BURGLARY AND LARCENY: Instructions. Where the State’s second instruction, in a burglary and larceny case, says that if the jury “believe and find from the evidence that defendant unlawfully and forcibly both broke and entered into the store, shop and building ... as defined in the preceding instruction,” and the preceding instruction provided that if “defendant unlawfully and forcibly did break and enter into the store, shop and building .... with the intent to steal therein,” the second instruction is, by its connection with and reference to the first, rendered free from the objection that it does not require the taking, but the conversion, to have been without the consent of the owner, and that it does not require the breaking and entering to have been done burglariously.
    4. -: -: Consent. An instruction which says that “if defendant took and carried away the property, or any part of it, and that he did so with the intent to fraudulently convert the same to his own use and to permanently deprive the owner thereof without his consent,” etc., is in accordance with the law.
    5. --: Possession of Stolen Property: Presumption: Instruction. Mere recent possession of stolen property, where the possessor is not the thief, does not raise the presumption that the party received the property, knowing it to have been stolen, but there must be proof that the party knew or had good reason to believe that the property had been stolen at the time he received it. And an instruction which omits this element is properly refused.

      6. ASSISTANT CIRCUIT ATTORNEY OF ST. LOUIS: Powers. The assistaut circuit attorney of St. Louis has the same power as has the circuit attorney, and has, therefore, authority to sign informations.
    7. NEW TRIAL: Newly-Discovered Evidence: Requisites. In order to support a motion for new trial on the ground of newly-discovered evidence, defendant must show, first, that the evidence first came to his knowledge since the trial; second, that it was not owing to want of due diligence that it did not come sooner; third, that it is so material that it would probably produce a different result if a new trial were granted; fourth, that it is not merely cumulative; fifth, that the object of the evidence is not merely to impeach the character or credit of a witness; and, sixth, the affidavit of the witness himself should be produced or its absence accounted for. And it is held that defendant in this case made such showing, and that the court should have awarded him a new trial.
    Appeal from St. Louis City Circuit Court. — Hem. Jesse A. McDonald, Judge.
    Reversed and remanded.

      Titos. B. Harvey for appellant; J. M. Bollins of counsel.
    (1) The court erred in overruling defendant’s objection to rebuttal evidence of the State tending to prove the good reputation of witness Yaugbn, in tbe absence of attack upon said reputation by defendant. State v. Cooper, 71 Mo. 436; State v. Thomas, 78 Mo. 327; State v. Patrick, 107 Mo. 147. (2) The instructions were erroneous in the following respects: (a) The second instruction does not require the taking, but the conversion, to have been without the consent of the owner of the property; and, (b) it does not require the breaking and entering to have been done burglariously in order for the stealing of property of any value to constitute grand larceny. State v. Walker, 174 Mo. 518; State v. Rutherford, 152 Mo. 124; State v. Barker, 64 Mo. 282; State v. Brown, 73 Mo. 631; State v. Brinkley, 146 Mo. 37. (3) The court should have given the instruction requested by the defendant, to the effect that the possession of the stolen property by defendant, raised either the presumption that he had stolen the property, or that he had received it from another. State v. Guild, 149 Mo, 370; State v. Richmond, 186 Mo. 71. (4) 'The court should have sustained defendant’s motion to quash the information on the ground that the assistant circuit attorney was without power under the law to issue it. Secs. 2477, 4959, 4960, R. S. 1899; Laws 1901, p. 48; Laws 1905, p. 51; Statev. Kelm, 70 Mo. 515; State v. Kyle, 166 Mo. 287. (5) Defendant should have been granted a new trial because of the discovery of new and material evidence. State v. McKenzie, 177 Mo. 699.

      Herbert 8. Hadley, Attorney-General, and Bush O. Lake, Assistant Attorney-General, for the State.
    (1) There could have been but one purposé accomplished in granting a new trial based upon newly-discovered evidence, which would have been that the testimony would have tended to impeach the credibility of witness Yaughn if the jury had believed it. State v. Miller, 144 Mo. 26; State v. Bowman, 161 Mo-. 88; State v. Neasby, 87 S. W. 468. (2) The court properly refused to give the instruction asked by defendant as to presumption. The law respecting the presumption of stolen property is very different when a defendant is charged with receiving stolen property (State v. Richmond, 186 Mo. 71) from the presumption when the defendant is charged with burglary and larceny, as in the case at bar. State v. Drew, 179 Mo. 315; State v. Belcher, 136 Mo. 137.
   BURGESS, P. J.

On the 20th day of April, 1904, there was filed an information in the office of the clerk of the circuit court of the city of St. Louis by W. Scott Hancock, assistant circuit attorney of said city, under his oath of office, charging the defendant with burglary in the second degree and larceny. Upon trial had, defendant was convicted of both burglary and larceny, and his punishment fixed at three years’ imprisonment in the penitentiary for the burglary, and two years for the larceny. After unavailing motions for new trial and in arrest of judgment, defendant appeals.

The facts, briefly stated, are that William A. Grolock kept a vehicle and harness establishment at 915 North Broadway, in the city of St. Louis, wMch was closed on Saturday evening, January 30, 1904, but upon the following Monday morning a rear door was found open, a glass skylight broken, and a milk wagon and sixteen sets of single harness were missing from the store.

Reuben Vaughn, a witness for the State, after testifying that he knew the defendant, proceeded as follows:

“Well, he — the way it come up, he asked me whether I had a stable shed at my house to conceal a wagon, or put a wagon in, and I told him no, I had no shed at my house that would do for a wagon because I had no shed at all, and he told me he has got a good wagon he wants to put in a shed, and he would be willing to pay for it if he knew some one that had a shed, and I asked him what he would be willing to pay for some one to keep the wagon for him, thinking he wanted it kept out of the weather, and he said he wanted to pay ten dollars to keep it fox a month, and I thought that was a good price, and I told him I thought I could find a good place to keep the wagon out of the weather, and I suggested, then, my father’s as being a good place to put the rig, as he had plenty of room out there, and I told him if he would be willing to pay ten dollars I would go out and see my father-in-law — see if my father-in-law would keep the wagon fox ten dollars a month, because I thought I would get him to keep it. cheaper and keep the balance myself; and he says, ‘ Go and see him right away,’ and I says to him, ‘Where is the rig?’ and he says he’s got it out on the road between here and East St. Louis, and I told him — I says: ‘Is it a stolen rig?’ and he says, ‘Yes, the rig is stolen, but there ain’t no way on earth to get in trouble about it. ’ And I asked him what kind of a wagon it was, and he said a great big delivery wagon with a top on it, and I told him I didn’t know whether he had room for a wagon with a top on it, because he had no wagon with a top on, and he says, ‘The top can be taken off;’ he says, ‘I don’t want you to take the top.’ Pie says, ‘I will tell you where the rig is, and if you will go out there and get the running-gear of that rig for me I will give you ten dollars to get it and bring it to town and take it out to your father-in-law’s, and I will pay him for keeping it,’ and I told him, I says, ‘How will I get the running-gear to town?’ and he says, ‘I will give you a monkey wrench and you go out there; there is only four or five bolts you have to take off, and the top will come off, ’ and I told him all right, and I says, ‘ I will go out and see my father-in-law,’ and he says, ‘You can then take your gun and dog and go out like you are hunting and walk up to the rig and look at it and if there ain’t nobody around, you can take the bolts off and the top will fall down the hill;’ and I told bbn all right, and I says, ‘You will have to give me car fare to go out to my father-in-law’s and he gave me ten cents. And I had read an account in one of the St. Louis papers about a week, or maybe two weeks, previous to that, about a rubber-tired rig and horse being stolen over here in St. Louis, and I kind of suspected that might be the rig, and I went back and asked him, ‘What about a wagon to bring that home on?’ and he told me I could hire a wagon and he would pay me for the hire. I told him, ‘Can you give me one of your horses?’ — he had three of his own then — and he says, ‘No, if I give you one of my horses that will be suspicious right away,’ and I says, ‘Is that a rubber-tired rig?’ and he says, ‘No; ’ and I went to the police headquarters at Belleville and asked them if they had a description of a rig that had been stolen in St. Louis.....”

The testimony of witness Vaughn was corroborated by the testimony of the police officers of both Belleville and St. Louis, in so far as the recovery of the wagon was concerned, and its location in the woods.

The defense was an alibi, in support of which defendant offered evidence which tended to show that from Saturday, January 30th, to Monday, February 1st, he was in Belleville and could not have been in St. Louis, the scene of the burglary. Some witnesses also testified that they overheard a conversation between Vaughn and defendant on February 2, when, instead of defendant telling Vaughn about a wagon, Vaughn was trying to sell defendant, for the sum of ten dollars, a covered wagon which he claimed to have somewhere.

The court gave the following instructions :

“The State of Missouri, by the information in this case which' was filed in this court on the 20th day of April, 1904, charges the defendant with the offense of burglary in the second degree and larceny. The defendant pleads not guilty; and upon the question of his guilt or innocence the court instructs you as follows:

“1. If, upon' consideration of all the evidence in the case, in the light of the court’s instructions, you believe and find from the evidence that at the city of St. Louis and State of Missouri, on or about the 31st day of January, 1904, the defendant, Morris Speritus, unlawfully and forcibly did break and enter into the store, shop and building of W. A. G-rolock with the intent to steal therein, and that in said store, shop and building certain goods, wares and personal property of any kind and of some value, however small, were at the time by said W. A. Glrolock kept and deposited, you will find the defendant guilty of burglary in-the second degree and assess his punishment in the penitentiary for a term of not less than three years.

“Before you can find the defendant guilty of burglary you must find from the evidence that he unlawfully and forcibly both broke and entered into said store, shop and building, but to constitute such breaking no particular amount of force is necessary. It is sufficient if he broke an outside window or skylight of said store, shop and building and thfen entered thereby or opened a closed outside door of said store, shop and building and then entered thereby.

“2. If you believe and find from the evidence that the defendant, Morris Speritus, unlawfully and forcibly both broke and entered into the store, shop and building of the said W. A. Grolock as defined and explained in the preceding instruction, and that after breaking into and entering the same the defendant, Morris Speritus, took and carried away therefrom the one-horse wagon and sixteen sets of single harness mentioned in the information in this case, or any part of it, and that he did so with the intent to fraudulently convert the same to his own use and to permanently deprive the owner thereof without his consent, and that said one-horse wagon and sixteen sets of single harness were the property of the said W. A. Grolock and were of any value whatever, you will find the defendant guilty of grand larceny also, and assess the punishment at imprisonment in the penitentiary in addition to the punishment for the burglary for a term of not less than two nor more than five years.

‘ ‘ 3. The court further instructs you that if you acquit the defendant of burglary, as heretofore defined, you will then consider whether or not he is guilty of grand larceny, in which connection the court instructs you, if you find and believe from the evidence that at the said city of St. Louis, at any time within three years next before the finding of the indictment herein, the defendant, Morris Speritus, unlawfully and fraudulently did steal, take and carry away a one-horse wagon and sixteen sets of single harness from the possession of W. A. Groloek with the intent to unlawfully and fraudulently convert the same to his own use and permanently deprive the owner thereof without his consent, and that the same was the property of said W. A. Grolock and of the value of thirty dollars or more, you will find the defendant guilty of grand larceny, and assess the punishment at imprisonment in the penitentiary for a term of not less than two nor more than five years.

“4. Under the information and instructions in the cause, yon may find the defendant guilty of both offenses, or yon may acquit him of both offenses, or you may convict him of burglary and acquit him of the larceny, or you may acquit him of the burglary and convict him of the larceny, according as yon may find the facts to be from the evidence.

“5. If you find from the evidence that the property mentioned -in the information, to-wit, a one-horse wagon and sixteen sets of single harness, was the property of W. A. Grolock, and that it was stolen in the city of St. Louis, State of Missouri, on or about the 31st day of January, 1904, and that recently thereafter the same or any part of said property was found in the exclusive possession of the defendant, then the defendant is presumed to be guilty of the theft, and the law will further presume that the thief resorted to and made use of all means necessary to gain access to and possession of such stolen property, and the burden is, on him to rebut or overcome the presumption to your satisfaction, but not beyond a reasonable doubt. The presumption of guilt arising from the mere naked fact of possession of stolen goods may, in the absence of other corroborating testimony, be rebutted by the evidence that the defendant received the property from another person, or by evidence that the defendant was at a different place than that at which the property was stolen at the time it was stolen, but unless such presumption is so rebutted, or unless such possession is accounted for in a maimer consistent with the innocence of the defendant by the evidence in the case or the circumstances attending such possession, or by the combined weight of one or more of the kinds of evidence just mentioned, then you should find the defendant guilty of stealing the property and also of the burglary.

“6. The defendant has interposed as a defense what is known in law as an alibi, that is, that even if the offense was committed as charged, he was at the time of the commission thereof at another and different place than that in which such offense was committed, and, therefore, was not and could not have been the person who committed the same. Now, if the evidence leaves in your minds a reasonable doubt as to his presence at the place where the offense was committed at the time of the commission thereof, you will find bim not guilty. '

“7. You are further instructed that the information contains the formal statement of the charge, but is not to be taken as any evidence of defendant’s guilt. The law presumes the defendant to be innocent, and the presumption continues until it has been overcome by evidence which establishes his guilt to your satisfaction and beyond a reasonable doubt; and the burden of proving his guilt rests with the State. If, however, this presumption has been overcome by the evidence and the guilt of the defendant established to a moral certainty and beyond a reasonable doubt, your duty is to convict. If, upon consideration of all the evidence, you have a reasonable doubt of defendant’s guilt, you should acquit; but a doubt to authorize an acquittal on that ground ought to be a substantial doubt touching the defendant’s guilt, and not a mere possibility of his innocence.

“You are further instructed that you are the sole judges of the credibility of the witnesses and of the weight to be given to their testimony. In determining such credibility and weight you will take into consideration the character of the witness, his or her manner on the stand, his or her interest, if any, in the result of the trial, his or her relation to or feeling towards the defendant or the witness, W. A. G-rolock, and the probability or improbability of his or her statements, as well as all the facts and circumstances given in evidence. In this connection you are further instructed that if you believe that any witness has knowingly sworn falsely to any material fact, you are at liberty to reject all or any portion of such witness’s testimony.

“You are further instructed that in considering the weight of the evidence, given by the defendant and his wife, you will take into consideration the fact that he is the defendant, testifying in his own behalf, and that she is his wife, and you may consider their interest in this case and the marital relation, in determining the credibility of their testimony.

‘18. The court instructs the jury that if they believe and find from the evidence that the defendant had possession of the wagon alleged to have been stolen, yet, if they entertain a reasonable doubt under the evidence as to whether such possession was acquired by the stealing of said wagon, or by receiving it from another knowing it to have been stolen, the jury will acquit the defendant of the charge contained in the information.

“9. The court instructs the jury that if they believe and find from the evidence that the defendant had possession of the alleged stolen property recently after the same had been stolen, and that in course of the same conversation with the witness Vaughn by which the State attempts to prove defendant’s possession of said property, the defendant gave.an account of said possession, explanatory of how he obtained said possession otherwise than by stealing the same, then if they believe such account of said possession they should find the defendant not guilty of the crime charged against him in this information now on trial.

“10. The court instructs the jury that the defendant is not charged with receiving or having possession of stolen property, knowing that it was stolen, but the. charge for which he is placed upon trial at this time is burglary and larceny; and the court instructs the jury that if you believe and find from the evidence tbM the defendant was guilty of having received the property mentioned in the information after the same was stolen, then you will acquit the defendant of the charge of burglary and larceny, for which he is now on trial.”

And the court refused the following instruction asked by defendant:

“The court instructs the jury that where one is found in possession of stolen property, recently after the same has been stolen, such possession raises a presumption that he obtained such possession either by stealing the property or by receiving it, knowing that it has been stolen; and the law raises from such possession either one of said presumptions with equal force and effect. ’ ’

Before passing upon the merits of the case it becomes necesary to pass upon several preliminary motions, one of which is by the State to dismiss the appeal, and another to strike the case from the docket, both predicated on the ground that the defendant failed and neglected to file any affidavit for appeal in the circuit court. This precise question was carefully considered at the present term of this court in the case of State v. Smith, 190 Mo. 706, in which Judge Fox, speaking for the court, held that in criminal eases no affidavit for appeal is necessary. The decision in that case is decisive of this question.

On the trial, the defendant testified in his own behalf and stated that Vaughn, a witness for the State, was at work for him sometime before the alleged burglary and larceny, and that he found out that Vaughn had been stealing some stuff from him, defendant, and that he paid him off and told him that he had no more work for Mm. In rebuttal, over tbe objection of defendant, tbe State was permitted to prove by Vangbn tbat he bad never been arrested for stealing, and, by another witness, tbat Vaughn bad a good reputation for honesty. There was no ground laid for tbe introduction of this evidence other than as stated, and defendant claims tbat its admission was error. Tbe argument is tbat defendant’s statement tbat be bad discharged Vaughn was not intended as an impeachment of Vaughn for veracity and honesty, but as a reason why be bad stopped working for tbe defendant; tbat if it was not competent for tbat purpose, tbe State’s counsel should have objected and moved to strike it out, or bad tbe court limit its effect and purpose, and tbat it could not be taken as a pretext for bolstering up tbe State’s witness and case by evidence of bis good reputation.

While we fully appreciate tbe plausibility of this argument, we are not impressed with its logic, and for these reasons: Conceding, for sake of tbe argument, tbat tbe testimony was not competent for tbe purpose of impeaching Vaughn for veracity or honesty, tbe State was not obliged to object, or move to strike it out, or to ask tbe court to limit its effect and purpose, but it bad a right to do as it did do — meet the charge by countervailing evidence. If a party to a suit introduces illegal and incompetent evidence, it does not lie in bis mouth to say tbat, because tbe adverse party did not object to it or move to strike it out, be is, therefore, bound by it and precluded from introducing evidence tending to contradict it. Moreover, if a party should object to tbe introduction of evidence reflecting upon bis character, or move to strike it out rather than meet it by evidence tending to show it to be untrue, be would, by so doing, run tbe risk of unfavorable inferences as to bis character being drawn by tbe court or jury. We recognize tbe rule tbat evidence is not admissible to prove tbe good character of a witness or a party to a suit unless it has in some way been assailed; and in tbe case in hand we think Vaughn’s character was assailed when it was said he was a thief.

The State’s second instruction is criticised upon the grounds that it does not require the taking, hut the conversion, to have been without the consent of the owner of the property, and that it does not require the breaking and entering to have been done burglariously in order to constitute the stealing of property of any value grand larceny. The State’s first instruction provides that if “defendant, Morris Speritus, unlawfully' and forcibly did break and enter into the store, shop and building of W. A. Grolock with the intent to steal therein, ’ ’ while the second instruction refers to that one and says that if the jury “believe and find from the evidence that the defendant, Morris Speritus, unlawfully and forcibly both broke and entered the store, shop and building of the said W. A. Grolock, as defined and explained in the preceding instruction, ’ ’ thereby making that part of the first instruction referred to, and especially “with intent to steal,” a part of the second, and making the latter free from the objection com plained of.

A further objection urged against the instruction is that it says that if the defendant took and carried away the property with the intent “to permanently deprive the owner thereof without his consent” it will be larceny. The insistence is that in order to make the taking larceny, it must be without the consent of the owner. In this respect the instruction says that, “if the defendant, Morris Speritus, took and carried away the one-horse wagon and sixteen sets of single harness mentioned in the information in this case, or any part of it, and that he did so with the intent to fraudulently convert the same to his own use and to permanently deprive the owner thereof without his consent,” etc. It is in accord with the law as announced in State v. Waller, 174 Mo. 518, and authorities therein cited.

The fifth, sixth, ninth and tenth instructions given on behalf of the State are also criticised, but the objections to them appear to be quite technical, and not such as to justify a reversal of the judgment.

Another contention is that the court should have given the instruction presented by the defendant, to the effect that the possession of the stolen property by defendant raised the presumption that he either had stolen the property or had received it from another, knowing it to have been stolen.

It was held in State v. Guild, 149 Mo. 370, that recent possession of stolen goods is sufficient to raise a presumption of guilt in receiving them with the knowledge that they were stolen, where the possessor is not the thief, and fails to satisfactorily explain how he acquired possession. That case overruled State v. Bulla, 89 Mo. 595, in which it was ruled that no such presumption is to be indulged from the mere recent possession of stolen property. In the recent case of State v. Richmond, 186 Mo. 71, the case of State v. Guild was disaffirmed and the case of State v. Bulla affirmed; so that, in a prosecution for receiving stolen goods, knowing them to be stolen, in order to sustain a conviction therefor, there must be proof that the defendant knew or had good reason to believe that the goods had been stolen at the time he received them, aside from the mere- fact that he was found in possession of them recently after they had been stolen. “The very essence of the offense is the receiving, knowing them to have been stolen” (State v. Richmond, supra), which this instruction entirely omits. It was, therefore, properly refused.

The information in this case is assailed upon the ground that it is signed by the assistant circuit attorney of the city of St. Louis, W. Scott Hancock, who, defendant contends, was without authority to sign it, and, therefore, the information was void. He was elected in the fall of 1901 for the term of four years, under the provisions of section 4959, Revised Statutes 1899. Section 4960, Revised Statutes 1899, prescribes his duties as follows: “It shall he the duty of such assistant to aid, generally, in the performance of the same duties as are hy law enjoined upon the prosecuting attorney, and he shall be subject to the same fines and penalties for misdemeanor in office or neglect of duty.”

Section 4961 provides for the election of one prosecuting attorney and one assistant prosecuting attorney for the city of St. Louis, and section 18 of the act creating the St. Louis Court of Criminal Correction, p. 2545, vol. 2, Revised Statutes 1899, authorizes said assistant prosecuting attorney to issue informations to be lodged in said court.

Section 4970 provides for the appointment of assistant prosecuting attorneys in counties having 75,000 inhabitants, and section 4973 prescribes the duties of such assistants. Subsequently, by section 4991, provision was made for the appointment of a second assistant prosecuting attorney in such counties.

Section 4996 provides for the appointment of assistant prosecuting attorneys in counties having between 50,000 and 75,000 inhabitants.

Section 4944 provides for the election of prosecuting attorneys in various counties, and section 4950 prescribes their duties, saying that “the prosecuting attorneys shall commence all civil and criminal actions in their respective counties, ’ ’ etc.; and section 4959 imposes upon the circuit attorney of the city of St. Louis the same duties as are required of prosecuting attorneys.

In addition to the above provisions for the election or appointment of prosecuting and assistant prosecuting attorneys, section 4955 provides that in event of a. disqualification of the prosecuting and assistant prosecuting attorneys, “the court having criminal jurisdiction may appoint some other attorney to prosecute or defend the cause.”

Section 4956 authorizes the court to appoint some person to discharge the duties of the office if the prose-exiting attorney be sick or absent; and the section following provides that the person thus appointed shall possess the same power as the prosecuting attorney.

Defendant contends that the foregoing statutes make ample provision for the election and appointment of prosecuting and assistant prosecuting attorneys throughout the State, and also for the appointment of a substitute by the court in the event of the disqualification of the regular prosecuting attorney, or in the event of his sickness or absence. But inasmuch as the inability of the prosecuting attorney might occur during the vacation of the court in his county, the Legislature in 1885 passed an act, now section 4975, authorizing each prosecuting attorney in this State to appoint one assistant, clothed with the power to discharge the duties of the prosecuting attorney; and section 4977 provides under what circumstances he may discharge said duties. Said act of 1885 has an emergency clause attached, as follows: “The law and the Constitution of this State requiring all information for misdemeanors to be made and filed by the prosecuting attorney, before a trial can be had, and there being no law to provide for the appointment of any person to file said information in case of the sickness or absence of the prosecuting attorney from the county, therefore, an emergency, within the meaning of the Constitution, exists; therefore, this act shall take effect and be in force from and after its passage.” [Laws 1885, p. 37.]

It is argued that said act of 1885 is a legislative construction of the law then in force with respect to the election or appointment of assistant prosecuting attorneys and their dxxties, which is to the effect that assistant prosecuting attorneys were not authorized to prefer informations, and that only such assistants as were provided for by the act of 1885 are clothed with such power. It will be observed that the assistant prosecuting attorneys provided for by this act are only for temporary purposes; that is, to act as such, and file in-formations in the ease of sickness or absence of the prosecuting attorney from the county.

State v. Weeks, 88 Mo. App. 263, holds that assistant prosecuting attorneys may be appointed, but that assistants not appointed under section 4975 cannot sign and prefer informations. This is clear from the reading of the act, which provides that such attorney is only appointed for a special purpose; that is, “to prosecute and defend the cauge” then about to be tried, in the event of the disqualification of the prosecuting and assistant prosecuting attorneys. No one will contend that an assistant thus appointed has any power other than that expressly conferred upon him by his appointment. That case also holds that the language, “to aid, generally, in the performance of such other duties pertaining to the office of prosecuting attorney as may be designated by such officer, ’ ’ does not authorize the assistant to sign informations. The reason for this announcement is plain, when we read the section of the statutes under which it was made in its entirety. It is as follows: “It shall be the duty of such assistant prosecuting attorney to attend to all cases of misdemeanor and preliminary examinations in justices ’ courts throughout his county; to appear before the grand jury of his county, if requested so to do by the prosecuting attorney, for the purpose of assisting and advising said body, and examining witnesses and arranging and preserving their testimony, and to aid, generally, in the performance of such other duties pertaining to the office of prosecuting attorney as may be designated by such officer.” [Sec. 4973, R. S. 1899.] The court said: “We construe this to mean that such assistant only has charge of misdemeanor cases in the justices’ courts; and for a misdemeanor to be prosecuted in that court he may file an information in his own name. We do not understand the concluding clause of the section authorizing such assistant to ‘aid generally, in the performance of such other duties’ as may be designated by bis principal, to enlarge Ms specially limited authority in the first clause.”

It is a well-settled rule of statutory construction that, “where words of a particular description in a statute are followed by general words that are not so specified and limited, unless there be a clear manifestation of a contrary purpose, the general words are to be construed as applicable to persons or things or cases of like kind to those designated by the particular words.” [2 Lewis’ Sutherland Statutory Construction (2 Ed.), sec. 422.] But where the general word stands alone, as in this case, it is to be construed in its broad sense, and, when the statute says it shall be the duty of said assistant to aid, generally, in the performance of the same duties as are now enjoined upon the prosecuting attorney, it was intended to invest him with the same power conferred upon the prosecuting attorney, and to impose upon Mm the same fines and penalties for misdemeanor in office or neglect of duty.

A final contention is that the court erred in not granting defendant a new trial upon the ground of newly-discovered evidence. In order to support a motion of this character, it devolved upon the defendant to show, first, that the evidence first came to his knowledge since the trial; second, that it was not owing to want of due diligence that it did not come sooner; third, that it was so material that it would probably produce a different result if the new trial were granted; fourth, that it was not merely cumulative; fifth, that the object of the testimony was not merely to impeach the character or credit of a witness; sixth, the affidavit of the witness himself should be produced, or its absence accounted for. [State v. McKenzie, 177 Mo. 699.] We think it clear from the affidavits of defendant and of Julius Bischof and Henry Meyer, in support of the motion, to the effect that the principal witness for the State, Reuben Vaughn, has said “distinctly that in fact Speritus had nothing to do with the wagon alleged to have been stolen, but that be, Vaughn, was out hunting and had found the wagon lying in a ditch, and that at some distance therefrom he met several men and called their attention to the wagon, and that thereupon said men stated that they had met with an accident and for that reason had left the wagon in the ditch, and that they authorized him, the said Vaughn, to sell the wagon, which he tried to do by offering said wagon for sale to the defendant, Morris Speritus, and he, Vaughn, said that he and Speritus could not agree upon a price, and he, therefore, failed to sell it to Speritus, and that what he told Speritus about the wagon was all that Speritus knew about it,” as well also as the statement made to Joseph Fried-land that Vaughn, in the early part of February, 1904, in Belleville, Illinois, offered to sell him a wagon, but that Vaughn’s description of the wagon did not suit him, all came to defendant’s knowledge after the trial, and that it was not owing to want of due diligence that it did not come before that time, as defendant did not seem to have any reason for believing that they or either of them would certify to the facts set forth in their affidavits. That the newly-discovered evidence would produce a different result in the event a new trial were granted we think possible, if not highly probable. It is true that Vaughn, in two counter-affidavits filed by the State, denies ever having made either of the statements set forth in the affidavits presented by defendant in support of his motion. It may also be conceded that the statements of Vaughn as set forth in the affidavits presented by defendant could not be shown in evidence without first calling Vaughn’s attention to the facts there stated and laying a foundation therefor as if for impeachment, but such evidence would not be merely cumulative, nor the object in introducing it merely to impeach Vaughn, but rather as tending to show that he was the first person who claimed to be in possession of the stolen wagon, and who offered to sell it after it had been stolen, thereby raising the presumption against him that he either stole it himself or, if he did not steal it, then he came into possession of it after it was stolen.

For these considerations, we are constrained to reverse the judgment and remand the cause for further trial. It is so ordered.

All concur.


author: FOX, J.

text:
    THE STATE v. URSPRUCH, Appellant.
    Division Two,
    November 21, 1905.
    1. APPEAL: Criminal Case: Affidavit. On the authority of State v. Smith, 190 Mo. 706, it is held that no affidavit is necessary for an appeal in a criminal case.
    2. APPELLATE PRACTICE: Sufficiency of Evidence. Where there is any substantial evidence tending to show the defendant guilty of the crime charged against him, the sufficiency of the evidence to support the verdict will not be considered by the appellate court.
    3. ASSAULT WITH INTENT TO RAPE: Sufficiency of Evidence. The evidence in this case, which was a prosecution for assault with intent to rape, is examined, and held sufficient to justify a verdict of guilty.
    4. PRACTICE: Failure to Instruct: No Exception. Where defendant saves no exception to the failure of the trial court to instruct upon all the law of the case, and makes no complaint on this point in his motion for a new trial, he cannot raise the question for the first time in the appellate court.
    Appeal from St. Louis City Circuit Court. — How. Daniel G. Taylor, Judge.
    Affirmed.

      John A. Porter for appellant.
    The evidence is insufficient to sustain a conviction. To warrant a conviction for an assault to commit a rape the evidence must show that the defendant’s intention was, if it became necessary, to force compliance with his desire at all events, and regardless of any resistance the woman might make. State v. Burgdorf, 63 Mo. 65; State v. Priestly, 74 Mo-. 24; State v. Owsley, 102 Mo. 678; State v. Scholl, 130 Mo. 396.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    The evidence is sufficient to warrant the conviction. State v. "Wilcox, 111 Mo. 569; State v. Peebles, 178 Mo. 486; State v. DeWitt, 152 Mo. 76; State v. Williams, 149 Mo. 496; State v. Swisher, 186 Mo. 8; State v. Williams, 186 Mo. 128; State v. Hayden, 141 Mo. 311.
   FOX, J.

This case is here by appeal on the part of the defendant from a judgment of conviction in the circuit court of the city of St. Louis upon an indictment charging the defendant with assault with intent to ravish Christina Hamel. This indictment was returned by the grand jury of the city of St. Louis on May 12, 1904, and as the validity of it is not challenged, we deem it unnecessary to burden this opinion with a reproduction of it. On June 22nd, following the return of the indictment, defendant entered his plea of not guilty and was placed upon trial. The testimony on the part of the State is substantially as follows:

The prosecuting witness testified that she was, at the time of the alleged assault, sixteen years of age, and lived with her parents at 4450 Tholozan avenue, in the suburbs of St. Louis. Plaving attended school with defendant and living a short distance from him, she knew him well, as she also knew all of his brothers and sisters. On the morning of the assault, between nine and ten o’clock, she was going up to Joseph Musler’s with her basket to get some vegetables. As she walked along the Pernod road, she passed a little field in which defendant was cultivating some onions; she recognized him as soon as she saw him. Defendant left the field and walked through the bushes up to- the road where prosecutrix was and made an indecent proposal to her, at which she turned and ran from him. Defendant caught her by the shoulder, threw or jerked her down and got on top of her. Prosecutrix resisted and made all the noise she could, until defendant caught hold of her throat. Finally she got his hand from her throat and he put it over her mouth and prevented her from making any more noise. She at last did get his hand off, and said, “Urspruch, you had better let me go.” Defendant then got up, and as he walked off, he said, “My name is not Urspruch.” This occurred in the middle of the road near a little wooden bridge. After being released, prosecutrix went on to Musler’s garden, where she made complaint to Mrs. Musler. This lady testified that she was crying and much distressed. After returning to her home, prosecutrix made complaint, to her mother, and she and her mother went over to defendant ’s home and reported to defendant’s mother what he had done that morning. Mrs. Urspruch went with them out to the field where defendant was at work, and asked him what he had done that morning, to which he replied, “What?” Prosecutrix then said, “Yes, you know very well what you done.” Defendant replied, “You are damned liar. ’ ’ Defendant stated to the police officer that arrested him that he went to the market that morning but returned by nine o ’clock.

Defendant testified in his own behalf, and while admitting his acquaintance with the prosecuting witness, Christina Hamel, positively denied any assault upon her. In fact, positively states that he did not see her on the morning she designated, nor was he about the place where she testified the assault occurred; in fact, his testimony contradicts all the material facts testified to by the prosecuting witness. Three other witnesses were introduced by the defendant and they testified that they were in the neighborhood of the little bridge (that is, within ninety or one hundred yards of it), near which it is said by Christina Hamel this assault occurred on the morning it is said to have occurred, between nine and ten o’clock, and that they heard no outcry and did not see the' defendant or Christina Hamel near "this bridge, or anyone else. There was other testimony on the part of the defendant tending to show that he did not return home until after ten o ’clock the morning upon which it is said this offense was committed, and after returning home he worked until twelve o’clock in another field. There was evidence showing the good reputation of the defendant. There was also evidence on the part of the defendant tending to prove an alibi. The State, in rebuttal of the testimony introduced by the defendant, offered testimony tending to show the character of the surface of the country where this assault’is said to have taken place, and this testimony tended to show there were weeds growing on both sides of the road and weeds and shrubbery and little trees growing around and about where it is charged that this assault was made, and that the surface of the country is rolling and hilly.

At the close of all the evidence the court instructed the jury, and as the correctness of the instructions are not challenged in the brief of counsel for appellant, other than that there was no evidence upon which to predicate them, there is no necessity for a reproduction of them. If the facts were sufficient upon which to base the instructions, then it is only necessary to say that the declarations of law were in due form and have repeatedly, in cases of this character, met the approval of this court. Upon the submission of the cause to the jury upon the evidence and instructions, they returned a verdict finding the defendant guilty of the charge in the indictment and assessing his punishment at imprisonment in the city jail for six months and a fine of one hundred dollars. After motions for new trial and in arrest of judgment were timely filed and by the court overruled, judgment was rendered upon the verdict as returned and from this judgment the defendant prose•cutes this appeal, and the cause is now before us for consideration.

OPINION.

The motion filed by respondent in this cause to dismiss the appeal for the reason that the record fails to disclose the filing of any affidavit after the rendition of judgment, will he denied, for the reasons fully expressed in State v. Graham Smith, 190 Mo. 706. It is also suggested that the record in this cause does not properly show the filing of the hill of exceptions within the proper time and in the manner provided by law. We will say as to this suggestion that while the disclosures of the record, in the respects to which our attention has been called by the Attorney-General, are not as clear and satisfactory as they should he, yet it is sufficiently certain that the hill of exceptions was filed within the proper time as to demand of us the disposition of this cause upon its merits from the entire record as presented.

Learned counsel for appellant, in his brief before us, presents hut two questions for our consideration:

1. That there was no evidence in this case upon which to predicate an instruction for assault with intent to ravish.

2. It is insisted that if the defendant was guilty of any offense under the evidence, it was simply that of a common assault and that the court committed error in failing to instruct the jury upon that offense.

Upon the first proposition, the rule has been repeatedly announced by this court that if there is any substantial evidence tending to show the defendant guilty of the offense charged against him, the sufficiency of the evidence to support the verdict will not be considered by the appellate court. [State v. Graham Smith, 190 Mo. 706; State v. DeWitt, 152 Mo. 76; State v. Williams, 149 Mo. 496; State v. Swisher, 186 Mo. l. c. 8; State v. Williams, 186 Mo. 128.]

We have carefully read and considered in detail the testimony of all the witnesses as preserved in the record in this cause, and have reached the conclusion that there is substantial evidence tending to show the defendant’s guilt and amply sufficient to support the verdict of the jury. We have detailed in the statement of this cause at least the substance of the testimony as introduced by the State, and have no hesitancy in saying that if this testimony is true and the jury believed it to be true, then this verdict has a substantial basis upon which to rest its correctness. The facts in this case are clearly distinguishable from those in State v. Scholl, 130 Mo. 396, upon which counsel for appellant chiefly rely for the reversal of this judgment. In thát case the party upon whom the assault was charged to have been made, Mrs. Hupman, was a full-grown married woman, and at the time and place of the assault one of the outer doors to the room of the house in which it occurred was open, and a man was working within forty or forty-five yards of the place, but Mrs. Hupman did not call for him nor did she make any outcry or do anything which was calculated to frighten the party, who was charged with assaulting her, away. That is not this case. Here we have a young girl only sixteen years old; an indecent proposal made to her; an effort to escape and the defendant catching her, throwing her to the ground and getting on top of her, and during such time as she was not prevented, was screaming and making such outcry as would naturally be expected of an innocent girl under the surrounding circumstances.' It is further disclosed that she called the defendant by his surname, evidently convincing him that she recognized him, and this, together with her outcry, was sufficient to frighten the defendant away before the purpose of his assault was accomplished. There is an entire absence of any testimony in this record impeaching the character of the prosecuting witness, either for truth and veracity or morality; no evidence of any improper motive that she entertained against the defendant, which would tend to explain in some degree the malring of a false charge. Her testimony is also corroborated by the subsequent complaint to Mrs. Musler and her mother and father. The jury and the court had the prosecuting witness before them, as well as all the other witnesses in the cause; it was peculiarly the province of the jury to determine the credibility of the witnesses and to give such weight to their testimony as in their judgment it was entitled. They returned a verdict of guilty and it was approved by the trial court, and we are unwilling to retry this cause upon the disclosures of the record.

This brings us to the consideration of the only remaining proposition presented by appellant, that is, the insistence that the court failed and neglected to declare the law covering the entire case. Our attention in the brief is specially directed to the failure of the court to instruct the jury upon the evidence of a common assault. The trial court should not be convicted of this error unless its attention has been called to it and at least afforded an opportunity, if it was error, to correct it. An examination of the record in this cause fails to disclose the preservation of any exceptions at the time the jury were instructed to the failure of the court to give all proper and needful instructions covering the entire law of the case. Again, it will be noted that no complaint of the failure of the court to fully instruct the jury is urged in the motion for new trial. It is fundamental upon questions of practice that the appellate court will not review any complaint of error to which the trial court’s attention was not called in the motion for a new trial. The contention of appellant upon this proposition is best answered by the announcement of the rule in State v. Cantlin, 118 Mo. l. c. 111, where it is thus clearly stated: “The instructions given by the court seem fairly to cover the issue joined between the State and the defendants, and if they did not, there is no statement in the motion that the court failed to give all proper and needful instructions. So that, if the court did fail to instruct the jury upon all questions of law arising in the case which were necessary for the information of the jury in giving their verdict, exception should have been saved at the time such failure occurred, and the point should have been preserved in the motion for a new trial, and this for the reason that exceptions in criminal eases occupy the same footing as do those in civil matters, and can only be preserved by the same methods of procedure. [State v. DeMosse, 98 Mo. l. c. 344; State v. Poster, 115 Mo. 448.]”

There was substantial evidence both ways upon the issue joined in this cause between the State and defendant, and the court confined its instructions to the issue presented. If it was error upon the part of the court in failing to embrace other grades of crime in its instructions to the jury, the attention of the trial court was never called to it, and the complaint is now urged for the first time in this court. Under the repeated announcement of the rule by this court upon that subject, the error now complained of is not a subject of review.

We have thus indicated our views upon the legal propositions as disclosed by the record. The testimony was sufficient to support the verdict; the instructions of the court were such as have repeatedly met the approval of this court, and finding no reversible • error, the judgment of the trial court should be affirmed, and it is so ordered.

All concur.