text:
    THE STATE v. ED. LINN, Appellant.
    Division Two,
    November 23, 1909.
    1. INSTRUCTION: In Words Asked. The defendant is in no position to complain of an instruction given for the State, if he asked one in the identical words of that given.
    2. -: Manslaughter: Conviction of Murder. The court gave this instruction on manslaughter in the fourth degree: “The court instructs the jury, That if defendant brought on the difficulty or entered into it with the intention of killing, or inflicting great personal injury upon, said O. H. Nettles, then the danger, if any, in which he found himself during such difficulty would not extenuate his offense or reduce its grade at all; but if he voluntarily brought it on or entered into it without any intent of killing or inflicting great personal injury upon said O. H. Nettles, and during such difficulty it became necessary for him to kill said O. H. Nettles, to save himself from being killed or receiving great personal injury, then he cannot be entirely excused on the ground of self-defense, but in that case you should find him. guilty of manslaughter in the fourth degree.” Defendant asked an instruction in the same words. í{eld, the court did not err in failing to define manslaughter more fully than it did, especially as the jury found defendant guilty of murder in the second degree.

      3. -: Refusing Defendant’s. It is not reversible error to refuse defendant’s instructions on the subject of self-defense, even though they be correct announcements of the law, if that given on the part of the State fully covers all the rights of defendant and states the law of the subject as fully and favorably as he could ask.
    4. JURORS: Impeachment of Verdict. Jurors speak through their verdict, and cannot be allowed to violate secrets of the jury room, or tell of partiality or misconduct that transpired there, nor speak of methods which induced or operated to produce the verdict. Nor can any witness testify what he heard one of the jury say of the methods used by the jury to arrive at their verdict, in support of a motion for a new trial asserting misconduct on the part of the jury.
    5. -: -: Quotient Verdict. A witness for defendant testified, in support of his motion for a new trial alleging misconduct on the part of the jury, that, about a half hour after the verdict was returned, assessing defendant’s punishment at imprisonment for twenty-four years, he found in front of the judge’s desk and jury box a paper which he identified and offered in evidence, containing a column of twelve numbers ranging from 10 to 35, and the twelve numbers had been added and the sum divided by twelve, producing the quotient of twenty-four. No other trial intervened between the return of the verdict and the finding of this paper. There was nothing to indicate that the figures were in the handwriting of any member of the jury, and nothing to indicate that the jurors agreed in advance to adopt as their verdict the quotient resulting from dividing by twelve the aggregate of the numbers set down on the paper. An offer to prove by this witness a statement of one of the jurors was refused. Held, the paper was insufficient to establish any prior agreement to be bound by the quotient verdict, or to overthrow the verdict.
    Appeal from Oregon Circuit Court. — Eon. J. L. Fort, Special Judge.
    Affirmed.

      Geo. M. Miley and E. P. Dorris for appellant.
    (1) The information is vagne and uncertain and fails to charge any offense under the statute; it fails to charge that a mortal wound was given the deceased by reason of the alleged assault with the knife in question, leaving the charge without any connection between the cutting or stabbing with the knife and infliction of the mortal wound, and omits to charge that the mortal wound was given feloniously, deliberately, premeditatedly on purpose and of his malice aforethought; lacking in these respects, the information does not directly charge that O. H. Nettles was given a mortal wound: State v. Brown, 168 Mo. 449; State v. Ferguson, 152 Mo. 92; State v. Birks, 199 Mo. 271; State v. Williams, 184 Mo. 261; State v. Green, 111 Mo. 585; State v. Rectoi*, 126 Mo. 329; State v. Wood-ring, 191 Mo. 627. (2) The court erred in failing to define what constitutes manslaughter in the fourth degree. The court carefully defined what constitutes murder in the first and second degrees, and then instructed the jury as to murder in the first 'and second degrees and manslaughter in the fourth degree, but did not undertake to define what constitutes manslaughter in the fourth degree. This was manifest error; when the evidence shows that a defendant may be convicted of either of the different degrees of a crime the jury should be fully informed by the court in what these different degrees consist, otherwise the jury may be misled and assess a punishment against the defendant for an offense of which he is not guilty: State v. Bryant, 55 Mo. 79; State v. Sloan, 47 Mo. 604; State v. Wyatt, 50 Mo. 309; State v. Matthews, 20 Mo-. 55; State v. Barnham, 82 Mo. 67; State v. Crabtree, 111 Mo. 136; 12 Cyc., pp. 639, 640. A definition by the court of the crime in precise and accurate language, setting forth the constituent elements thereof, is indispensable: State v. McOaskey, 104 Mo. 644; State v. Reakey, 62 Mo. 40; State v. Branstetter, 65 Mo. 155; 12 Cyc., p-. 614. Under the evidence in this case manslaughter in the fourth degree should have been fully defined by the court and submitted to the jury: State v. Ellis, 74 Mo. 207; State v. Holme, 54 Mo. 153; State v. O’Hara, 92 Mo. 59'-; State v. Umfried, 76 Mo. 407; State v. Diekman, 75 Mo. 570; State v. Evans, 158 Mo. 606. The court erred in refusing defendant’s instructions: State v. Gordon, 191 Mo. 114; State v. Reed, 117 Mo. 604; State v. Haines, 160 Mo. 555'; State v. Hill, 69 Mo. 451. (3) The refusal of the court to give instructions asked hy defendant minimized the right of self-defense and was very prejudicial to the rights of defendant. The instruction given for State upon the whole are too strongly colored for the State: State v. Mathews, 148 Mo. 185. (4) The jury were guilty of misconduct in arriving at their verdict hy setting down or causing to he set down on a piece of paper the term of imprisonment which in the opinion of each juror should he assessed against the defendant and adding these sums together and dividing the total sum hy twelve and the quotient accepted as the verdict of the jury, and such conduct justifies a reversal: State v. Branstetter, 65 Mo. 149; Williams v. State, 66 Ark. 264; Railroad v. Com., 3 Ky. L. Rep. 650; Williams v. State (Tenn.), 15 Lea 129; White v. State, 37 Texas Or. 651; Magill v. Texas (Or. App. 1902), 67 S. W. 1018; State v. Vincent (S. D. 1902), 91 N. W. 347.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
    (1) Defendant says that the information fails to directly charge that deceased was given a mortal wound. A perusal of the information, refutes this suggestion. The words omitted in the indictments discussed in the cases cited hy defendant, are incorporated in the information here. State v. Birks, 199 Mo. 27; State v. Williams, 184 Mo. 264. (2) The evidence for the State directly and positively showed defendant’s guilt. Whatever conflict of evidence there was, the jury settled against the defendant. State v. Smith, 190 Mo. 723; State v. McGee, 188 Mo. 409. (3) This sixth instruction given hy the court was offered hy defendant and incorporated in the instructions as given in the identical form in which defendant offered it. Defendant cannot complain that the court gave the identical instruction which he asked. R. S. 1899, sec. 2535; State v. Pohl, 170 Mo. 428; State v. Manicke, 139 Mo. 548; State v. Haney, 168 Mo. 197; State v. Cushenberry, 157 Mo. 182; State v. DeMosse, 98 Mo. 342; State v. Barnett, 110 Mo. App. 590: Instruction numbered 13, approved in the Beckner Case, predicated the consideration of the defense of self-defense upon a failure of the jury to find that defendant “brought on or entered into the difficulty . . . with the intention of taking advantage of Brown or killing him, or of doing him some great bodily harm. ’ ’ State v. Beckner, 194 Mo. 299. In State v. Barrington, referring, however, to an instruction upon a different phase of the case, this court approved the series of instructions in the Thomas Case, 78 Mo. 338; State v. Barrington, 198 Mo. 101. The instruction given as to self-defense, was properly drawn and conformed to approved precedents. State v. Cordon, 191 -Mo. 132; State v. Crant, 152 Mo. 67; State v. Shoultz, 25 Mo. 152. This instruction fully and favorably covered the law of self-defense. For that reason the court’s refusal of defendant’s requested instructions was not error. State v. Pennington, 146 Mo. 35; State v. Parker, 172 Mo. 204; State v. Berkley, 109 Mo. 676. (4) There was nothing to indicate whether the jury made the computation shown by the paper in evidence; nothing to indicate that they agreed in advance to adopt as their verdict the quotient resulting from dividing by twelve the aggregate of the numbers representing each juror’s individual opinion as to proper length of defendant’s punishment. The verdict cannot be set aside on this sort of showing. State v. Branstetter, 65 Mo. 152; Sawyer v. Railroad, 37 Mo. 263; Sharp v. Railroad, 114 Mo. 106; McMurdock v. Kimberlin, 23 Mo. App. 526; Jobe’s Admr. v. Weaver, 77 Mo. App. 671. The paper produced. furnishes no basis for any inference that there was an agreement that the jury would abide by any quotient obtained by the method alleged to have been pursued. Batterson v. State, 63 Ind. 537. And it is the prior agreement to be bound which vitiates the “quotient verdict.” Glidewell v. State, 15 Lea 136; Leveret v. State, 3 Tex. App. 217; Batterson v. State, 63 Ind. 537; Thompson v. Com., 8 Grattan 650'; Crabtree v. State, 3 Sneed 303.
   GANTT, P. J.

On the 29th day of June, 1908, the prosecuting attorney of Oregon county filed, in the circuit court of said county, an information, charging Ed. Linn and John Rodman with murder in the first degree. An application for change of venue, based on the alleged prejudice of Judge Evans, was filed by Linn, and sustained. The trial was set for September 1,1908, and Judge Fort was requested to try the cause. The defendant Linn was duly arraigned and pleaded not guilty. The jury was impaneled and sworn and, having heard the evidence, found the defendant guilty of murder in the second degree and fixed his punishment at twenty-four years in the penitentiary. Motions for new trial and in arrest of judgment were filed and overruled and the defendant sentenced in accordance with the verdict.

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

On February 26th a wedding was in progress at the farmhouse of OcMey Nettles in Oregon county, Missouri. The house was occupied by a tenant named Morrow and was situated about one hundred yards from the residence of Ocldey Nettles, the deceased, on the same farm. About two o’clock in the afternoon of that day on which the killing occurred, the defendant appeared at his father’s house, procured a bottle of whisky, inquired for John Rodman, who was subsequently indicted as accessory, and immediately departed in search of him. On that afternoon, defendant and Rodman appeared at the home of Mrs. Mary Nettles in a somewhat intoxicated condition. Learning from Mrs. Nettles that a wedding was to occur at Morrow’s, they left the house and proceeded towards the latter’s place. Arriving at Morrow’s the defendant and Rodman did not enter the house, "but went around behind it and drank some whisky that they had brought with them. Seeing the deceased Nettles, they invited him to drink with them, and he did so. Defendant and Rodman then walked up the road with one Underwood and returned cursing and blackguarding, the defendant boasting of their ability to whip any one present. In the meantime, the deceased had returned to a position near the entrance of the house and was leaning against a post of a shed adjacent thereto. Defendant and Rodman approached the deceased, and Rod-man asked him if he had anything against him. Deceased replied that he had not. Defendant then put the same question and received a like reply. Deceased then asked Rodman if he (Rodman) had anything against him, and Rodman said he had not. Deceased then asked defendant a like question and defendant replied, “Yes, you ran over my father, and I am not going to take it,” and then with an oath said that the deceased could not treat him that way. Suiting the action to the word, defendant drew his knife and stepped in front of the deceased. He raised his knife, whereupon deceased stooped to pick up a stick, and as he did so, the defendant rushed in on him and dealt the fatal blow. At this juncture, the deceased either struck or struck at the defendant with a, stick, but apparently without effect. He then dropped the stick and grappled with the defendant, endeavoring to prevent the defendant cutting him further with the knife. They struggled for a short time until the deceased cried to a bystander “to take him off, he has killed me.” Rodman then seized the defendant and forced him from the deceased, who staggered by and behind the comer of the house. Defendant released himself from Rodman’s grasp, and saying, “I will kill him, Gr — d—him,” ran after the deceased. As deceased fell, defendant struck at him again with his knife. Returning from this second assault defendant said he “had cut him to the heart, Gr — d—him.” Defendant and Rodman then left the premises. The wound inflicted by the defendant upon the deceased practically severed the femoral artery in the left thigh, death resulting in a very short time from the loss of blood. There was also evidence that sometime prior to the killing, the defendant, in talking to one Baker concerning a difference between the deceased and the defendant’s father, had said “he was going to get right some of these days and go down there on him.” To the suggestion that the deceased might best him, defendant answered, “I will knife him.” To which Baker replied, defendant would be sent to the penitentiary, and defendant answered, “I do not give a d — .” On Monday, two days before the killing, defendant, while sharpening his knife, refused to swap it, saying, “I might want to kill a man with it. ’ ’ On the part of the defendant there was testimony to the effect that when defendant and Rodman returned to the house, just before the killing, they were talking pretty loud and ugly, and the deceased asked defendant to be quiet. Rodman then said to the deceased, “You can say what you please to the Linns and Rodmans behind their backs, but they are the stuff.” Deceased said: “You are not throwing that at me are you? I ain’t got nothing against you, I always thought a heap of you boys.” And defendant retorted; “Yes, but you run over an old man and by Gr— I will take up for him.” The defendant had clinched the deceased before the latter struck the former.

The defendant’s testimony corroborated that of the State as to the deceased’s efforts to avoid the knife in the struggle. Some of the defendant’s witnesses did not hear defendant and Rodman question the deceased' as to whether he had anything against them. They described defendant’s knife as a “deerfoot” knife with a blade about three and a half inches long.

A physician, who examined defendant in the jail sometime after he was in prison, testified that defendant’s right wrist was swollen as if he had received a blow upon it, and the jailer testified that soon after receiving the defendant at the jail, he observed a scratch on his neck and one on his right wrist. The flesh was not discolored.

The defendant testified in his own behalf that on the afternoon of February 26th, he went to his father’s house to get a note which had been drawn for Rodman to sign, the latter being indebted to him for a. small amount. That he procured the note and a bottle of whisky and met Rodman on his way home. Rodman importuned him to go with him to the wedding, suggesting that Rosenbaum and Hombuckle would be found there; that thereupon they proceeded to Mrs. Mary Nettles’, and from there went to the Morrows’. He then detailed the occurrences at Morrow’s very much as the State’s witnesses had done. His description of the killing was that immediately prior thereto he heard deceased ask Rodman if he had anything against him and Rodman said no, and Rodman then asked a like question and deceased slapped him on the shoulder and said, “I ain’t got nothing against old John and never did have.” Deceased then asked the defendant the same question, to which, defendant replied, “No, Ockley not a thing. You run over an old man once, but you cannot do me that way. If you do me that way I will whip you fair.” Deceased then said, “Don’t throw that old thing up to me,” and reached for a club', and when he did this, defendant rushed on him. He declared that the deceased struck him on the head and left wrist with a stick; that his knife was in his pocket at this time and during the struggle until deceased began choking him and attempting to “ride him down, and he seen that there was no show for him,” defendant drew his knife, opened it and “struck one lick at his body,” but did not know whether he hit him or not; that deceased seized his wrist and endeavored to cut him with the knife which he (defendant) still held; that some one then grabbed defendant and jerked them apart and slung defendant down hill. “And when I came to myself I was standing with the knife in my hand in front of John Rodman.” Defendant and Rodman then went to defendant’s father’s house and thence to the justice of the peace to whom defendant surrendered. Defendant identified the knife which he testified was the one with which he inflicted the fatal wound.

In rebuttal the State introduced evidence, tending to show that the knife exhibited by the defendant at the house of the justice of the peace, after his surrender, was not the one identified by him at the trial. That at Johnson’s, the justice, defendant displayed his right wrist and it was green all the way round; that there was no other indication of injury to it. Defendant then said: “He had stabbed the deceased first in the groin, and had ‘hacked’ him across the throat as they drew him loose.” Defendant was cool and collected, laughing and joking until about eight o’clock, when he went to sleep behind the stove. One witness testified that he attempted to open defendant’s knife with one hand, as Rodman stated defendant had done in the struggle with the deceased, but was unsuccessful. This was substantially all the evidence in the cause.

The court instructed the jury as to murder in the first degree, murder in the second degree, manslaughter in the fourth, and self-defense, to the giving of all of which instructions the defendant excepted. Defendant requested and the court refused certain instructions on the subject of self-defense and manslaughter in the fourth degree. To which action of the court the defendant saved his exceptions.

I. Defendant assails the information as insufficient to charge any offense, in that it fails to charge that the mortal wound was given the deceased by reason of the alleged assault with the knife. The language of the information in this connection is: “That one Ed Linn on or about the 26th day of February, 1908, at and in the county of Oregon and State of Missouri, in and upon one O. H. Nettles, then and there being feloniously, wilfully, deliberately, premeditatedly, and of his malice aforethought, did make an assault, and with a certain knife which he, the said Ed. Linn, in his right hand then and there had and held, him the said O. H. Nettles, feloniously, wilfully, deliberately, premeditatedly, and of his malice aforethought, did strike, stab and thrust in and upon the right side of the left thigh of him the said O. H. Nettles, giving to the said O. H. Nettles then and there with the knife aforesaid in and upon the right side of the left thigh, of him the said O. H. Nettles one mortal wound.of the length of two inches, of the breadth of one inch and of the depth of three inches, of which mortal wound the said O. H. Nettles then and there instantly died.” The indictment itself is a sufficient refutation of the charge made against it and contains the words which were omitted in State v. Williams, 184 Mo. 261, and State v. Birks, 199 Mo. 263, and the absence of which required the reversal of the judgment in those cases.

II. It is also assigned as error that the circuit court failed to define manslaughter in the fourth degree. As already said, the court had fully instructed on murder in the first degree and murder in the second degree, and then gave instruction numbered six in these words: “The court instructs the jury, That if the defendant brought on the difficulty, or entered into it with the intention of killing, or inflicting great personal injury, upon said O. H. Nettles, then the danger, if any, in which he found' himself during such difficulty would not extenuate his offense or reduce its grade at all; hut if he voluntarily brought it on or entered into it without any intent of killing or inflicting great personal injury upon said O. H. Nettles, and during such difficulty it became necessary for him to kill said O. H. Nettles, to save himself from being killed or receiving great personal injury, then he cannot be entirely excused on the ground of self-defense, but in that case you should find him guilty of manslaughter in the fourth degree. ’ ’

And in another instruction the court instructed the jury that if they should convict the defendant of manslaughter in the fourth degree they would assess his punishment at imprisonment in the penitentiary for two years or by imprisonment in the county jail for not less than six months or by a fine of not less than five hundred dollars, or by both a fine not less than one hundred dollars and imprisonment in the county jail not less than three months.

It appears from the record that the defendant requested this identical instruction of the court and requested no other instruction on the subject of manslaughter in the fourth degree, and saved no exceptions to the failure of the court to instruct more fully on that degree of offense. Under these circumstances, the defendant is in no attitude to complain that the court declared the law on the subject of manslaughter in the identical words requested by the defendant. Moreover this instruction is predicated upon the only state of facts under the evidence in this case which would have reduced the homicide to manslaughter in the fourth degree and the defendant had the full benefit thereof.

We think there was no reversible error because the court failed to define manslaughter any more fully than it did, especially as the jury did not find the defendant guilty' of that grade of offense.

III. On the subject of self-defense the court gave instruction number seven, in these words: ‘ ‘ The court instructs the jury that if you find and* believe from the evidence, that defendant had good reason to believe from the words, acts and conduct of the deceased, O. H. Nettles, that he had a design to do him (Linn) some great personal injury or bodily harm, and that such design was about to be accomplished, then defendant had a right to act on appearances, and to cut or stab said Nettles to prevent the accomplishment of such design, even though such cut or stab resulted in the death of said Nettles; and in this connection you are further instructed that defendant was not required to nicely gauge the force used, but that he could use any means that appeared reasonably necessary under the circumstances. Neither is it necessary that his danger should have been real or actual, or that it should have been impending and about to fall, but if he had reasonable cause to believe and did believe these facts and cut and stabbed the deceased to prevent such expected harm, then you must acquit him on the ground of self-defense.”

The court refused two instructions on the same subject requested by the defendant, but it is evident that the instruction above set out fully covered all the rights of the defendant and states the law as fully and favorably to defendant as he could ask, and as it has been repeatedly held that when such is the case, it is not error to refuse other instructions, even though they may be correct announcements of the law.

IV. Finally it is insisted that the misconduct of the jurors in the method employed by them in arriving at their verdict, is sufficient to justify a reversal of the judgment. In support of this assignment, the record shows that one of the defendant’s witnesses testified upon the hearing of a motion for new trial, that about a half or three-quarters of an hour after the verdict was returned and the jury discharged, he found in front of the judge’s desk and the jury box, a paper which he identified and offered in evidence, containing a column of twelve figures, ranging from 10 to 35, and twelve numbers had been added and the sum divided by twelve producing a quotient of twenty-four, this last number corresponding to the number of years at which the jury assessed the defendant’s punishment in the penitentiary. No other trial intervened between the return of the verdict in this case and the finding of this paper by the counsel. There was no other evidence offered on this head. There was nothing to indicate that these figures were in the handwriting of any member of the jury and absolutely nothing.to indicate that they agreed in advance to adopt as their verdict the quotient resulting from dividing by twelve the aggregate of the numbers set down on said exhibit. The offer to prove by this witness a statement of one of the jurors was properly refused. This court in State v. Underwood, 57 Mo. 40, laid down the rule that jurors speak through their verdict and cannot be allowed to violate secrets of the jury room and tell of any partiality or misconduct that transpired there, nor speak of methods which induced or operated to produce the verdict, and this has become the settled law of this State. [State v. Branstetter, 65 Mo. l. c. 156; State v. Coupenhaver, 39 Mo. 430; Sawyer v. Railroad, 37 Mo. 263.

The paper exhibit was utterly insufficient to establish any prior agreement by the jurors to be bound by the quotient verdict. Indeed the paper was not shown to have been an act of any member of the jury and it is clearly insufficient to overthrow the solemn verdict of the jury.

It results that the judgment and sentence of the circuit court must be and is affirmed.

Burgess and Fox, JJ., concur.


source: Caselaw Access Project

author: GANTT, P. J.

license: Public Domain

text:
    THE STATE v. SUSIE PAYNE, Appellant.
    Division Two,
    November 23, 1909.
    1. INFORMATION: Preliminary Hearing: Before Law Went Into Effect. A prosecution under an information filed before the Act of 1907 went into effect, without a preliminary hearing, was not a denial to defendant of any privilege secured by that act.
    2. -: Amended: First Not Formally Quashed. The former information need not be formally quashed on the record before there can be a prosecution under the amended information.
    3. -: -: Former Conviction: Proof. The State has the right, in the amended information for the first time, to plead defendant’s former conviction of a felony as a substantive fact constituting an aggravated offense (Sec. 2379, R. S. 1899), and by the same token the right to prove it by the records of the court in which she was convicted and by those of the penitentiary in which she was imprisoned.
    4. IMPEACHMENT: Former Conviction: Identity. The records of defendant’s former conviction of a felony and of her imprisonment may be used to impeach her testimony, and to establish her identity as the party who had served her sentence in the penitentiary.
    5. INSTRUCTION: Offense in County. An instruction for the State which does not require the jury to find that the larceny was committed in the county where the information was filed, is defective, but if she was not convicted under section 2379, Revised Statutes 1899, it could not possibly have prejudiced her rights.
    6. -: Demurrer. Where the evidence tends to prove every material fact necessary to a conviction, a demurrer should be overruled.
    7. -: Given for Defendant. Defendant cannot complain of an instruction given at her instance.
    Appeal from Pettis Circuit Court. — Hem. Louis Hoffman, Judge.
    Affirmed,

      Elliott W. Major, Attorney-General, and Charles Q. Revelle, Assistant Attorney-General, for the State.
    (1) None of the three motions to quash, nor the one motion to strike out certain portions of the information, nor exceptions to the overruling of same, were preserved in the hill of exceptions. Such matters form no part of the record proper, and this court is precluded from reviewing same when not embodied in the bill of exceptions. State v. Price, 186 Mo. 142; State v. Coleman, 199 Mo. 118; State v. Tooker, 188 Mo. 444; State v. Finley, 193 Mo. 210'. The court committed no error, however, in overruling same. One of these motions assailed the information because it had been filed without defendant being first accorded a preliminary hearing, but as the information was filed on April 3, 1907, and the statute requiring a preliminary in such cases not being effective at that time (it not having become operative until July 14, 1907), defendant was not entitled to such preliminary. State v. Harvey, 214 Mo. 403; State v. Moran, 216 Mo. 550. Another motion sought to quash the information because there had been previously filed another information charging substantially the same offense, and this information was still pending and undisposed of, hut this could not he sustained, because the force and vitality of the first information was suspended upon the.filing of the second, and the right of the prosecuting attorney to amend or file an entirely new information is no longer open to doubt. State v. Taylor, 171 Mo. 473; State v. Vinso, 171 Mo. 585; State v. Williams, 191 Mo. 212; Sec. 2522, R. S. 1899. By still another motion she endeavored to strike out that portion of the information which charged a former conviction and discharge from the penitentiary upon compliance with the sentence. That the court properly overruled this motion admits of no doubt, as these are allegations of material facts which constitute the aggravated offense created by section 2379, R. S. 1899. State v. Manicke, 139 Mo. 545; State-v. Loehr, 93 Mo. 103; State v. Austin, 113 Mo. 538; State v. Moore, 121 Mo. 514'. (2) Defendant objected to the introduction in evidence of the records and judgment showing her former conviction, but in order to establish the offense charged, such testimony was competent, and, in fact the only legal and conclusive evidence of such fact. State v. Manicke, 139 Mo. 547; State v. Vaughan, 199 Mo. Ill; State v. Horn, 115 Mo. 415; State v. Moore, 121 Mo. 521. This testimony was also competent for the purpose of affecting the credibility of defendant as a witness. In order to show her compliance with the former sentence, and her discharge from the penitentiary upon such compliance, the certified copy of the records on file in the office of the warden of the penitentiary was competent. State v. Austin, 113 Mo. 544. This record, in addition to showing her discharge, contained a complete description of the person so- discharged, and was competent for the additional purpose of establishing the identity of defendant, and disclosing that she was the same person who bad been confined in the penitentiary and later discharged. (3) Instruction numbered 1 is defective, in that it fails to require the jury to find that the offense was committed in Pettis county, but this is not reversible, because that instruction was predicated on the habitual criminal charge, and had defendant been convicted of that offense, the punishment could not have been less than seven years. Sections 2397, 1901, R. S. 1899. The verdict of the jury assessing defendant’s punishment at but five years, clearly establishes the conclusion that she was not convicted of the charge defined in that instruction, but was found guilty of the offense defined by instruction numbered 2, and instruction numbered 1, therefore, however erroneous, was not prejudicial, and resulted in no harm to defendant. State v. Waters, 144 Mo. 341; State v. Evans, 158 Mo. 605; State v. Haynes, 160 Mo. 567; State v. Eaton, 75 Mo. 591; State v. Sansone, 116 Mo. 1; State v. Alfrey, 124 Mo. 393; State v. Darling, 199 Mo. 202. (4) The only part of instruction numbered 8 against which any criticism could be levelled, was given at the instance of defendant, and she, therefore, cannot complain. Sec. 2535, R. S. 1899, provides that no judgment shall be affected because of any error committed at the instance, or in favor of the defendant. State v. Jackson, 99 Mo. 62; State v. Manicke, 139 Mo. 548; State v. Palmer, 161 Mo. 175. This instruction, however, is not erroneous, as it not only varies the form of the instruction condemned by this court in State v. Austin, 113 Mo. 514; State v. Hobbs, 117 Mo. 621; and State v. Miller, 162 Mo. 257, but is substantially different, and conforms in substance to the instruction approved in State v. Summar, 143 Mo. 230.
   GANTT, P. J.

This prosecution was commenced by an information filed by the prosecuting attorney of Pettis county, charging the defendant with larceny from the person of Homer Arnold in the nighttime. Afterwards on April 1, 1907, an amended information was filed charging the defendant with the same offense with the addition of a charge of a former conviction of the same offense, and that she had been imprisoned in the penitentiary and having fully complied with the sentence had been discharged therefrom. After unavailing motions to quash and strike out certain portions of the information, the defendant was duly arraigned and entered her plea of not guilty. She was put upon her trial before a jury duly impaneled and sworn, and found guilty of larceny from the person in the nighttime as charged in the information and her punishment assessed at five years’ imprisonment in the penitentiary. Motions for new trial and in arrest of judgment were duly filed, overruled, and the defendant sentenced in accord with, the verdict. And an appeal was granted to this court.

The testimony on the part of the State tended to establish the truth of the charge of larceny from the person of Homer Arnold in the city of Sedalia on or about January 5, 1907, by the defendant placing her hand in his left hand trousers pocket, abstracting two dollars and some additional change therefrom, and then running away. This occurred about nine o’clock in the night of that day. The records of the circuit court of Pettis county were also introduced in evidence showing a former conviction of the defendant on the charge of grand larceny, and the record of the penitentiary showed that she had complied with the judgment and sentence and had been discharged therefrom.

There was evidence on the part of the defendant tending to show that Arnold did not have the money, and on the part of the defendant herself denying that she took from him the sum of two dollars, or any other amount, but that he gave her fifty cents. The defendant is not represented in this court by counsel, and we are driven to an examination of the record and to her motions for‘new trial and in arrest to discover whether any reversible errors were committed against her.

I. The information is in the usual and often approved form and is entirely sufficient.

The objection to the information on the ground that defendant had not been accorded a preliminary examination was without merit, for the reason that the act securing that privilege to defendant did not go into effect until July 14, 1907.

Equally unavailing is the point that the first information was not formally quashed on the record when the amended information was filed. [Sec. 2522, R. S, 1899; State v. Williams, 191 Mo. l. c. 212.]

Unquestionably the State had the right to plead the former conviction as substantive fact constituting an aggravated offense under section 2379, Revised Statutes 1899, and by the same token the right to prove it by the record. [State v. Manicke, 139 Mo. 545; State v. Vaughan, 199 Mo. 111.] This evidence was likewise competent to impeach the defendant’s testimony and to establish her identity as the party who had served her sentence in the penitentiary.

II. The first instruction given for the State was defective in not requiring the jury to find that the larceny was committed in Pettis county, but as defendant was not convicted under section 2379, Revised Statute 1899, it could not possibly have prejudiced her rights. [State v. Waters, 144 Mo. 341.]

III. Instruction number 2, given by the court, properly defined the offense of which the defendant was convicted. It required the jury to find all the elements and facts essential to the crime. Instructions 3, 4, 5, 6 and 7 are such as are usually given in criminal prosecution and are in accordance with long approved precedents.

Instructions one and two, requested by the defendant and refused by the court, were in the nature of demurrers and were properly denied, as the evidence tended to prove every material fact necessary to the conviction. The court gave instructions numbered 3, 4 and 7, wherein the jury were instructed that the information was a mere formal accusation and no evidence of guilt, and on the presumption of innocence, an instruction on the credibility of the witnesses, in addition to that which the court had already given of its own motion. Instructions 5 and 6, prayed by the defendant, were properly refused, as the law involved therein had been correctly declared by the court to the jury in their instructions.

As to instruction number 8, the record discloses that this was given'at the instance of the defendant, and she therefore cannot complain. [Sec. 2535, R. S. 1899; State v. Palmer, 161 Mo. l. c. 175; State v. Summar, 143 Mo. 230.]

IV. The exception based upon tbe remarks of the prosecuting attorney, we think, is without any substantial merit, and, in our opinion, furnishes no ground whatever for the reversal of this judgment. We have been unable to find any error which in the least tends to the prejudice of the 'defendant’s substantial rights. Accordingly the judgment is affirmed.

Burgess and Fox, JJ., concur.


author: FOX, J.

text:
    THE STATE v. FRANK SHELTON, Appellant.
    Division Two,
    November 23, 1909.
    1. INFORMATION: Form: With Ax. The form of the information, wherein it is charged that the homicide was committed with an ax, “which they, the said Frank Shelton and Henry Killion in their hands then and there had and held,” is not to be commended, but such defect does not render it fatally defective. It “does not tend to the prejudice of the substantial rights of the defendant upon the merits.”
    2. -: Preliminary Hearing: Waiver: Finding of Fact. Where the justice’s transcript recites that defendant waived a preliminary hearing, and defendant introduced evidence that he neither waived nor was given a preliminary hearing, a finding of fact by the trial court that he had waived it, will not be disturbed on appeal.
    3. BILL OF EXCEPTIONS: Extending Time: Nunc Pro Tuno Order. The action of the trial court after the lapse of two terms, without any notice to the prosecuting attorney, and without any showing by memorandum made by the court, either upon its docket or upon the record, that an error had been committed in the preservation of the record, in entering a nunc pro tunc order authorizing the filing of a bill of exceptions, is not approved. But in this case the doubt as to the sufficiency of the disclosures of the record to authorize the nunc pro tunc order extending the time for filing, is resolved in favor of defendant.

      4. JURORS: Panel: Qualifications: No Assignment in Motion for New Trial. Any complaint concerning the examination and qualifications of the panel of jurors cannot be considered on appeal unless the appellant incorporates the complaint as one of the grounds in his motion for a new trial.
    5. MURDER: Robbery: Evidence That Defendant Had Money. It is not improper to permit the State to supplement its evi-’ dence indicating that robbery was the motive which prompted the killing, with testimony that deceased usually had money in his possession.
    6. ACCOMPLICE: Competency to Testify. An accomplice who was jointly indicted with defendant, and to whom a severance has been granted, and who, after objection to his testifying was interposed, has pleaded guilty to manslaughter in the fourth degree, sentence being reserved, is a competent witness against defendant in the murder trial.
    7. -:-: Promise of Immunity. Any inducements held out to an accomplice, and the fact that he admits he is an accomplice, are things which affect only his credibility, but not his competency to testify.
    S. ALIBI: Instruction. An instruction which tells the jury that “unless you find and believe from all the facts and circumstances given in evidence the presence of defendant at the place of the alleged murder, and his guilt beyond a reasonable doubt, you should acquit him,” sufficiently covers the defense of alibi, and renders unnecessary the one asked by defendant.
    9. CIRCUMSTANTIAL EVIDENCE: Instruction. The instruction on the subject of circumstantial evidence, set out in the opinion, declared the law in substantial harmony with the uniform holdings of this court.
    10. CREDIBILITY OF WITNESSES: Instruction. The instruction, set out in the opinion, on the subject of the credibility of witnesses and the weight to be attached to their testimony, was sufficiently full and properly declared the law.
    11. -: Accomplice: Refusing Defendant’s Instruction: Argumentative. The court having instructed the jury that the testimony of an accomplice, uncorroborated as to matters material to the issues, “ought to be received with great caution by the jury, and the jury ought to be fully satisfied of its truth before they convict defendant on such testimony,” and that “you are at liberty to convict defendant on the uncorroborated testimony of an accomplice alone” if you believe his testimony to be true, did not err in refusing to instruct that “if you believe the testimony of the accomplice was obtained by threats and through fear from or by reason of any promise from the officers of the court or prosecuting attorney, you should weigh his testimony with great care and caution, as evidence obtained in this manner shows the vital interest of such codefendant, and could not be taken as his free and voluntary statement, given after he had been cautioned that his statements may be used against him.” The one given fully covered the subject, and the one refused was argumentative.
    12. MURDER: Punishment: No Instruction. Where the jury found defendant guilty of murder in the first degree and fixed his punishment at life imprisonment as the law authorized them to do, no injury was done defendant by the fact that the instruction contained no direction as to what punishment they might inflict in case they found him guilty of murder in that degree.
    13. -: Sufficiency of Evidence. It is the exclusive province of the jury to determine the weight of the testimony; and though a conviction may rest largely upon the testimony of an accomplice, yet if there is sufficient substantial evidence, if true, to establish defendant’s guilt, the appellate court will not undertake to decide whether or not it is true, but leave that question to the jury to decide.
    Appeal from Christian Circuit Court. — Now. John T. Moore, Judge.
    Affirmed.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
    (1) (a) The form of the amended information upon which the defendant was tried, conforms to the precedents in like cases. State v. Ferguson, 162 Mo. 671. (b) The allegation that the murder was committed with an ax, “which they then and there in their hands held” is not the best form, but does not render the indictment fatally defective. State v. Dalton, 27 Mo. 14; State v. Payton, 90 Mo. 225; State v. Grimes, 29 Mo. App. 471. (c) The motion to quash, in respect to this feature of the information, merely alleged that “the information fails to state a cause of action or charge defendant with any crime under the laws of the State of Missouri.” The Statute of Jeofails is as applicable before verdict as after verdict. Sec. 2535, R. S. 1899; Sec. 2481, R. S. 1899. And while the ground of the motion mentioned is sufficiently specific (State v. Weeks, 77 Mo. 496), yet it is not true in fact that the information charged no offense. (See above authorities.) Other objections to the form of the information, etc., must be specified in the motion if they are to be considered here. Sec. 2532, R. S. 1899'. 2. The motion to quash also charged that defendant had not been accorded a preliminary examination, nor yet a right to one, and that, therefore, the information should be quashed, (a) The transcript of the justice of the peace sent up with the record, shows that this statement of the motion was not trae in fact, (b) On defendant’s effort to contradict the transcript of the justice, and show that, despite its recitals, defendant, Shelton, neither had nor waived a preliminary examination, the trial court heard evidence, pro and con, and found the fact against defendant. This court will not disturb that finding. State v. Hathorn, 166 Mo. 241; State v. Hunter, 181 Mo. 333; State v. Gordon, 196 Mo. 198. (2) According to Killion’s testimony, defendant’s motive was robbery. Defendant declared immediately after killing Bowen that he “got the money.” It was not improper to supplement this evidence with proof that Bowen usually had money in his possession. State v. Donnelly, 130 Mo. 651; State v. Jackson, 95 Mo. 652. After his plea of guilty, Killion was competent. This is the customary method of securing the testimony of a joint defendant. State v. Minor, 117 Mo. 305; State v. Myers, 198 Mo. 252; State v. Beaucleigh, 92 Mo. 493; State v. Walker, 98 Mo. 108. The inducements, if any, held out to Killion, affected only his credibility and not his competency. State v. Riney, 137 Mo. 104; State v. Myers, 198 Mo. 252; State v. Wigger, 196 Mo. 97. (3) 1. The first instruction given, as to the defense of an alibi, is a rescript of one approved by this court. State v. Sanders, 106 Mo. 195. 2. Instruction 6, as to circumstantial evidence, is not subject to criticism. State v. Avery, 113 Mo. 494; State v. Taylor, .134 Mo. 151. 3. Instruction 7 as to tbe weight to be given the testimony of an accomplice, follows the precedents. State v. Tobie, 141 Mo. 560; State v. Crab, 121 Mo. 565; State v. Black, 143 Mo. 171; State v. Sprague, 149 Mo. 423. 4. Instruction 8 as to the credibility of the witnesses, is an approved form. State v. McOarver, 194 Mo. 732; State v. Bond, 191 Mo. 561. (4) 1. The .form of instruction 10, as requested is bad. The latter portion of it a mere comment on the evidence. It was argumentative. In the form requested, it was properly refused in any event. State v. Heath, 221 Mo. 565. 2. The accomplice who turns State’s evidence is universally assumed to do so in order to escape the penalty, or a portion of it. “The implied' offer of immunity is recognized by all courts.” It has become a sort of equitable right. Whisky cases, 99 U. S. 599; Camron v. State, 32 Tes. Crim. Apps. 182; State v. Lyon, 81 N. C. 602. The hope of leniency is, therefore, the element which necessitates the usual cautionary instruction given in this case, and so many times approved by this court. It covered the ground included in instruction No. 10, requested by defendant —and more. It was not necessary for the trial court to argue the matter with the jury and point out a particular reason for the cautionary instruction, as defendant requested that court to do. The cautionary instruction given and that a.s to the credibility of the witnesses, met all reasonable requirements in this connection.
   FOX, J.

This cause is now before this court upon appeal from a judgment of the circuit court of Christian county, Missouri, convicting the defendant of murder of the first degree. The amended information, upon which defendant was tried, and which was duly verified, was filed by the prosecuting attorney in the circuit court of Christian county on the 25th of August, 1908. Omitting formal parts, the charge upon which defendant was convicted, was thus stated in the information.

“Fred W. Barrett, prosecuting attorney within and for the county of Christian, in the State of Missouri, for an amended information, informs the court under his official oath and upon his best information and belief that Frank Shelton and Henry Killion on or about the 12th day of May, 1908, in the said county of Christian, in the State of Missouri, in and upon the body of one William Bowen, then and there being, feloniously, wilfully, deliberately, premeditatedly and of their malice aforethought did make an assault, and with a dangerous and deadly weapon, to-wit, an ax, of the weight of three pounds, which they, the said Frank Shelton and Henry Killion in their hands then and there had and held, him, the said William Bowen, then and there feloniously, on purpose and of their malice aforethought, wilfully, deliberately, premeditatedly did assault, strike, beat and wound; and with the ax aforesaid, then and there, feloniously, on purpose and of their malice aforethought, wilfully, deliberately and premeditatedly, did assault, strike, beat and wound him, the said William Bowen, in and' upon the head of him the said William Bowen, giving him, the said William Bowen with the dangerous and deadly weapon aforesaid, to-wit, the ax aforesaid, in and upon the head of him the said William Bowen one mortal wound of the length of two inches and the width of one-half inch and the depth of one inch of which said mortal wound the said William Bowen then and there instantly died.

“And the said Fred W. Barrett, the prosecuting attorney aforesaid, under his oath of office aforesaid, does say that the said Frank Shelton and Henry Killion, him, the said William Bowen in the manner aforesaid, and by the means aforesaid, at the time and' place aforesaid, feloniously, wilfully, deliberately, premeditatedly on purpose and of their malice aforethought did kill and murder, contrary to the form of the statute in which cases made and provided and against the peace and dignity of the State.”

The evidence developed upon the trial of this cause upon the part of the State substantially tended to show that the deceased, William Bowen, lived about two miles south of Nixa, in Christian county. He was sixty-five or seventy years old, and was a huckster by trade, collecting poultry and produce in the vicinity of his home and making weekly trips to Springfield for the purpose of marketing his wares. Deceased was accustomed to carry sufficient money to transact his business, a considerable sum being required to purchase the produce^whieh he hauled to Springfield on his weekly trips. The fact that he usually had money in his possession seems to have been known to a number of persons, including appellant’s co-indictee. Deceased was last seen alive about dark on Tuesday, the 12th day of May, 1908, returning to his home after a trip to Springfield. Deceased’s neighbors, attracted by the evident neglect from which his horses were suffering, on Thursday, May 14th, visited deceased’s premises and discovered the body. It lay, face downward, on the floor in a pool of blood. A bloody ax lay near the body. There was blood upon a trunk and chair, and the former gave evidence of having been rifled. Death was caused by a blow upon the head, inflicted by a blunt instrument, which shattered the skull. The wound was necessarily and almost instantaneously fatal. Bowen had been dead thirty-six hours, or more, when his body was discovered. On Tuesday night preceding the discovery of the body, defendant and his co-indictee, Killion, and one Stewart, all of whom lived or worked in the vicinity of Bowen’s home, went fishing. Soon after 9 p. m., Stewart left appellant and Killion and went home; the latter stating at the time that he and appellant were going to an old pond' near by and continue fishing. They retained Stewart’s seine and it was found in his yard the following morning.

Appellant, on Tuesday morning, had suggested to his co-defendant that they rob Bowen. After Stewart left the fishing party Tuesday night, appellant renewed his suggestion, threatening to kill young Killion unless he acceded thereto. The latter finally agreed to aid in appellant’s enterprise and the two went to deceased’s house. Appellant stationed Killion in the road near the house, approached the door, rapped upon it and was admitted by deceased. Killion testified that he then saw someone leave and re-enter the house; that he heard a “lumbering and then a groan” in the house. Soon thereafter, appellant emerged from the house, stooped and washed his hands in a rivulet at the roadside, and said to Killion, “I got the money,” adding an admonition to Killion “not to tell, whatever he done.” Appellant and Killion then went to the latter’s home and' there spent the night. Appellant offered Killion part of the money taken from deceased. After the discovery of the body, in conversation concerning the killing, appellant, when asked if he did it, replied: “I wouldn’t say I didn’t, but there was nobody ever seen me kill him, if I did kill him. ’ ’ In the same conversation, he offered one Fonville twenty dollars to leave the country, telling him that he, Fonville, was suspected. There was testimony to the effect that when appellant was arrested he said he “thought he could prove out of that;” that there was “a. little blood on his shirt,” and “his shoes looked like they had blood or something on them.”

Appellant, after his arrest, was taken to view the body, and the officer who had him in charge testified that “he was nervous and shaky; turned white and pretty much every color a man could turn, who was guilty of a crime.”

When Killion, jointly indicted with appellant, was offered as a witness by the State, objection was made to his testifying. He was then permitted to plead guilty to manslaughter in the fourth degree. Appellant, still objecting to Billion’s testifying, asked and was granted permission to offer testimony as to Killion’s having been promised, as an inducement to confess, a light sentence in the Reform School. The evidence offered on this head was conflicting. Counsel for appellant upon cross-examination of Henry Killion, the accomplice, sought to discredit Killion, and in addition-to the cross-examination he offered in evidence a confession signed by Killion. While this signed confession of Killion, offered by counsel for appellant, tended to contradict him upon some of the matters to which he testified in his oral examination, yet as to some of the material facts this signed confession of Killion substantially agreed Avith his oral testimony while on the witness stand.

Defendant testified in his own behalf and substantially stated that on the Tuesday night on which Bowen was killed he went fishing as detailed by witnesses Henry Killion and Stewart, and that about 9:30 p.m. he and Killion left the pond, where they had gone after Stewart left them, and went to Killion’s home; that he had two little fish in his pocket; these he put into a tub near the door, followed Billion into the house and slept there that night. He positively denied being at Bowen’s house at all, and stated that the testimony of Killion regarding his connection with the killing of Bowen was absolutely false. Defendant also contradicted and denied the testimony of witness Fonville, and also denied the conversation attributed to him by witness Ball on the occasion when Ball arrested him. The defendant, as an explanation as to the blood on his shirt, said that he “might have got it from cleaning fish or popping a snake’s head off.” Further stated that there was no blood upon his shoes and what was seen upon his shoes “was not blood at all, bnt was from a snag or something.”

There was other testimony offered on the part of the defendant tending to show that the witness, Henry Killion, who was charged as an accomplice, had, about two months before the tragedy, threatened to kill Bowen, the deceased. It was drawn out in the examination on this subject that this threat on the part of Killion against Bowen resulted from Killion’s father teasing him about Sabbath-breaking and suggesting that the deceased, Bowen, act as judge to pass upon young Killion’s misdemeanors.

It also appeared in evidence offered by the defendant that, prior to Killion’s confession, the prosesuting attorney offered him, Killion, partial immunity if “he would tell him about the killing and all about where the money was, and that Killion subsequently denied the truth of his confession.”

There was other testimony offered by the defendant which tended to show that the reputation of witness Ponville for truth and veracity was bad. It also appeared in evidence that $26.71 was found in some egg cases in Bowen’s house after the killing.

Thqre was also evidence offered on the part of the appellant tending to show that a horseman who strongly resembled Shelton, appeared on the road leading from Bowen’s to Killion’s at “half past eight or nine o’clock, or later” on the night of the killing, and that this horseman, after inquiring as to the road to Nixa, continued up the road. Another witness testified that he saw a horseman between eleven and twelve o’clock the same night, riding rapidly northward along the Springfield road. There was other testimony offered by the defendant which contradicted the State’s evidence as to the time Henry Killion and the defendant reached the Killion home on the night of the tragedy.

The State, in rebuttal, offered proof tending to show contradictory statements made by some of appellant’s witnesses-in reference to the time when appellant and Killion reached Killion’s house.

This sufficiently indicates the nature and character of the testimony upon which this case was submitted to the jury, at least it is entirely sufficient to enable us to dispose of the legal propositions presented by the record.

At the close of the evidence the court instructed the jury upon the various subjects to which the testimony was applicable. We deem it unnecessary to here reproduce all the instructions given or refused, but will, during the course of the opinion, give them such attention as they require. The cause was then submitted to the jury, and they returned their verdict finding the defendant guilty as charged and fixed his punishment at life imprisonment in the penitentiary of this State. Timely motions for new trial and in arrest of judgment were filed and by the court taken up and overruled. Sentence and judgment were rendered by the court in accordance with the verdict returned, and from that judgment the defendant prosecutes this appeal, and the record is now before us for consideration.

OPINION.

The record in this cause discloses numerous complaints on the part of the appellant upon which are predicated the reasons why the judgment should be reversed. We will give to the errors .complained of such attention as we deem the importance of questions presented demand and merit.

I.

The information sufficiently charges the offense of which the defendant was convicted. While perhaps the form of the information, wherein it is charged that the offense was committed with an ax, “which they, the said Frank Shelton and Henry Killion in their hands then and there had and held,” is not to be commended, bnt snch defect does not render the indictment fatally effective. [State v. Dalton, 27 Mo. 13; State v. Payton, 90 Mo. 220; State v. Grimes, 29 Mo. App; 470.]

In State v. Dalton, supra, it was expressly ruled by this court that the manner in which the instrument is held by which the injury is inflicted is not material, and even if it was material under the common law rules of pleading it is manifestly cured by the sweeping provision of our statute, which declares that “no indictment shall be deemed invalid on account of any defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” The rule as announced in that case was unqualifiedly approved in the later case of State v. Payton in the 90th Mo.

II.

It is next earnestly insisted that the information upon which the defendant was tried and convicted, should have been quashed for the reason that the defendant was not afforded a, preliminary examination prior to the filing of such information. Upon this proposition we find that the transcript of the justice of the peace shows that there was a waiver on the part of the defendant of a preliminary examination; but aside from this the trial court permitted learned counsel for defendant to introduce evidence tending to contradict the recitals of the transcript of the justice, for the purpose of showing that, despite the recitals of "the transcript, defendant Shelton neither had nor waived a preliminary examination. Upon this inquiry the trial court heard the evidence on both sides and found the facts against the defendant; in other words, that there had been a waiver of the preliminary examination. Upon this state of the record this court is not inclined to disturb the conclusions’ reached by the trial court. [State v. Hathhorn, 166 Mo. 229; State v. Hunter, 181 Mo. 316; Staté v. Gordon, 196 Mo. 185.]

III.

The learned Attorney-General presents the question upon the disclosures of the record as to whether or not there is anything before this court for review save and except the record proper. It is sufficient to say upon that proposition that it is extremely doubtful as to whether or not the disclosures of the record as to the entry of the nunc pro tunc order extending the time for the filing of the bill of exceptions authorized the filing of such bill, yet we are disposed to resolve the doubt in favor of the defendant, but will add that we by no means approve of the action of the court, after the lapse of two terms, and without any notice to the prosecuting officer, and without any showing as to any memorandum made by the court, either upon its docket or upon the record that an error had been committed in the preservation of the record, in entering a mmc pro tunc order which would authorize the filing of the bill of exceptions. It follows from this that we will treat the bill of exceptions as filed within the proper time, and give to the questions preserved by such bill the attention we deem necessary.

IY.

Appellant makes complaint concerning the examination and qualification of the panel of jurors in this cause. It is sufficient to say upon this proposition that the appellant has failed to incorporate this complaint as one of the grounds in his motion, for a new trial. Whatever occurred in the trial of this cause during the examination and qualification of the panel of jurors from which the trial panel was to he selected, must he preserved, not only in the bill of exceptions, but the court’s attention must be directed to that complaint in the motion for’ new trial.

In State v. Tomasitz, 144 Mo. 86, it was urged that the court erred in refusing to sustain defendant’s challenge to one of the jurors upon the panel. The motion for new trial called the attention of the trial court to the error complained of in refusing to sustain defendant’s challenge to the juror, but failed to give the name'of the juror against whom the challenge was directed, and in that case it was said by this court, speaking through Judge Btjrgess, that “we are therefore entirely at sea as to what juror was intended to be embraced in the motion, and must disregard this contention. ’ ’

In the case at bar the motion for new trial fails to assign any errors respecting the examination of jurors or the exceptions to those that were examined as being qualified to sit in the trial of the cause. Manifestly this complaint has not been sufficiently preserved to authorize this court to review the action of the trial court upon that subject. This cause presents a much stronger reason for declining to consider the complaint than the case above referred to, for in this case the motion for new trial is absolutely silent as to any complaint respecting the examination and qualification of jurors.

V.

We have examined in detail the evidence disclosed by the record and the objections and exceptions preserved during the progress of the trial interposed by the appellant to the introduction of such evidence. It is sufficient to say concerning the rulings of the court upon the admission of evidence that we find no substantial error, at least no sueb error as -would authorize the reversal of this judgment.

During the examination of witness Slane, the State, by her counsel,- inquired Whether or not he knew anything about the deceased having money and how he kept it along about the time he was killed. There was an objection to this testimony upon the ground that it did not appear to have any connection with the defendant. It must, however, not be overlooked that during the progress of the trial there was testimony tending to show that the motive which prompted the killing of Mr. Bowen, the deceased, was that of robbery. With that view of the case we have reached the conclusion that it was not improper to supplement the evidence indicating that robbery was the motive which prompted the killing with the proof that the deceased' usually had money in his possession.

In State v. Donnelly, 130 Mo. l. c. 651, it was ruled by this court that there was no error in permitting a witness to testify to the finding of the pocketbook of the deceased near the spot where he was found lying unconscious, a day or two next thereafter; and also that it was not error to permit witnesses to testify that deceased had money on his person the day before his death. This testimony was in that case deemed appropriate for the purpose of supplementing the State’s evidence indicating that the motive in the commission of the crime was that of robbery. There was no error in the admission, of this testimony offered by the State along this line in the case at bar, and the action of the court in denying the motion of appellant’s counsel to strike out all of Slane’s testimony upon this subject was entirely proper.

VI.

Learned counsel for appellant earnestly insists that the court committed error in permitting the admitted accomplice of the defendant, Henry Killion, to testify against the defendant as a witness. The record upon this proposition discloses that the State offered Henry Killion, the accomplice, as a witness. "When this offer was made Killion was not on trial and had not pleaded to the information; however, a severance had been granted. Defendant made the further objection to Killion testifying on the ground that he had neither pleaded guilty nor been convicted, and being indicted jointly with appellant he could not therefore testify against him. Upon this objection being made, the accomplice, Killion, by his attorney, as is disclosed by the bill of exceptions, then pleaded guilty to manslaughter in the fourth degree. Counsel for defendant then interposed an objection to Killion testifying in the case for the following reasons: First: Because he had confessed the crime in writing; second, that the prosecuting attorney had agreed with Killion’s counsel that if he would turn State’s evidence, he might plead guilty to manslaughter in fourth degree and not be prosecuted for murder; third, that Killion made the confession and pleaded guilty by reason of hope and persuasion; and fourth, because Killion was jointly indicted with the defendant. It further appears from the record that after some controversy, defendant, through his counsel, suggested to the court that the jury be withdrawn, and the court then proceeded' to make a preliminary examination as to whether he would permit this witness to testify. In the jury’s absence defendant introduced evidence tending to show that the prosecuting attorney, when Killion was first arrested, said to him, “If you will tell this straight, I know you are not, I will see that you go to the Reform School, while if you don’t I will see that your neck breaks.” The prosecuting attorney, in this preliminary examination, testified that he promised Killion partial immunity if he would “tell where the money was, but he never made him any promise to get him to tell how this thing wa.s done.” The court then overruled the objection as to Killion’s competency and the defendant duly preserved his exceptions to the action of the court. The jury was recalled and the trial proceeded. Killion, the accomplice, was introduced and the defendant objected to his testifying for the same reasons as heretofore stated. The objections as made were overruled and defendant excepted.

Upon this state of the record we are simply confronted with the proposition as to whether or not this accomplice was a competent witness. We are unable to agree with counsel for the appellant that Killion, the accomplice, was not a competent witness, and unless we are ready to overrule a long line of decisions in this State, there is no escape from the conclusion that the court did not commit any error in permitting him to testify. As was said in the case of State v. Myers, 198 Mo. 225: “It has been decided by this court that an accomplice not jointly prosecuted with the defendant is a competent witness for the State,” citing in support of that announcement, State v. Umble, 115 Mo. 461; State v. Walker, 98 Mo. 95; Wharton’s Criminal Evidence, sec. 439; McKenzie v. State, 24 Ark. 636; 1 Bishop’s Crim. Proc. (3 Ed.), sec. 1167; State v. Einey, 137 Mo. l. c. 104. This proposition is clearly settled by the provisions of the statute, section 4680, Eevised Statutes 1899, which provides that “Any person who has been convicted of a criminal offense is, notwithstanding, a competent witness.”

In the case of State v. Minor, 117 Mo. 302, it was expressly held by this court that an accomplice jointly indicted with the defendant on trial was, after his own conviction, a competent witness for the State against his co defendant on trial.

In State v. Riney, 137 Mo. 102, it was expressly ruled that the mere fact 'that the witness expected a lighter sentence for his own confessed complicity in the crime because he had become a witness for the State, did not affect his competency; that such fact could only, be considered in determining Ms credibility and tbe weight to be attached to his testimony. [State v. Stewart, 142 Mo. l. c. 417; State v. Black, 143 Mo. l. c. 172.] To the same effect is State v. Wigger, 196 Mo. 90. In the treatment of the proposition now under consideration, this court in that case, speaking through Judge Gantt, said: “If anything is settled in the law of this State, it is that the evidence of an accomplice who confesses his own guilty participation in a crime, is competent against his accomplice on trial for the same offense. And the credibility of such a witness is a matter for the consideration of the jury trying the case. [State v. Hill, 96 Mo. 357; State v. Williams, 149 Mo. 496; State v. Franke, 159 Mo. 535.] And it is also the accepted doctrine that the evidence of an accomplice, even though uncorroborated, is sufficient to sustain a conviction if believed by the jury. [State v. Williamson, 106 Mo. 162; State v. Black, 143 Mo. 166; State v. Tobie, 141 Mo. l. c. 561; State v. Marcks, 140 Mo. 656; State v. Harkins, 100 Mo. 666.]” In further treating of this proposition in the Wigger cáse, this court also said: “The failure of the State to produce the other witnesses to corroborate the testimony of the accomplice could have operated only against the State, and was a legitimate subject for discussion before the jury, but would not authorize this court, which has not the opportunity of seeing and hearing the witness testify, to interfere with the verdict of the jury which did see and hear the witness, and observe his. manner of testifying, as well also the manner and testimony of the defendant and- his wit nesses. Accordingly, it must be ruled that the court did not err in submitting the evidence to the jury.”

We have thus indicated the rules of law applicable to this proposition that have been uniformly announced by this court. As heretofore stated, the record M this case discloses that- the defendant and the accomplice, Killion, were jointly indicted; that there was a severance and before the accomplice testified in the cause he entered his plea of guilty to manslaughter in the fourth degree. Upon the entering of such plea of guilty and the disposition of his case, clearly, if the rules as heretofore suggested are to be longer followed, he was a competent witness against the defendant in the case at bar. Any inducements held out to the accomplice Killion, and the fact that he admitted that he was an accomplice in the perpetration of this crime, are questions which affect only his credibility and the weight to be attached to his testimony, which are matters for the consideration of the jury; but under the well-settled rules of law announced in an unbroken line of decisions in this State it does not affect his competency as a witness. Upon this proposition the ruling must be adverse to the contention of learned counsel for appellant.

VII.

This leads us to the errors complained of by the appellant respecting the declarations of law given by the court in submitting the cause to the jury. The record before us discloses that at the close of the evidence defendant, through his counsel, moved the court to instruct the jury on all points of law in this case, and especially upon the law of an alibi, the use of the evidence of a eodefendant and his confession, also on the law of circumstantial evidence and on the impeachment of witnesses. The. record then discloses that the court- instructed the jury and that the defendant preserved his exceptions to the instructions given, and also excepted to the refusal of instructions offered by the defendant, but there is an entire absence from the record of any exceptions to the court’s failure, if any, to instruct upon the subjects embraced in the motion above referred to; however, in our opinion the instructions of the court fully covered the subjects to which counsel for the defendant directed its attention. Upon the subject of an alibi, to which the court’s attention was directed by the defendant in his motion, the court instructed the jury as follows:

“Gentlemen of the jury: Unless you find and believe from all the facts and circumstances given in evidence the presence of defendant at the place of the alleged murder, and his guilt beyond a reasonable doubt, you should acquit him.”

It was. expressly held by this court in State v. Sanders, 106 Mo. 188, that an instruction substantially the same as this sufficiently covered the defense of alibi and rendered the one asked by the defendant unnecessary.

Upon the testimony of an accomplice, the court, in our opinion, by instruction numbered 7, directed the jury substantially in accordance with the uniform rulings of this court upon that subject. This instruction was as follows: “Gentlemen of the jury, the court instructs you that the testimony of an accomplice in the crime, that is, a person who actually commits or participates in the 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 as charged against him, ought to be received with great caution by the jury, and the jury ought to be fully satisfied of its truth before they should convict defendant on such testimony. The court further instructs the jury that you are at liberty to convict the defendant, Frank Shelton, on the uncorroborated testimony of an accomplice alone, if you believe the statements as given by such accomplice in his testimony to be true; if you further believe that the state of facts sworn to by such witness, if any, will establish the guilt of thé defendant.”

Upon the subject of circumstantial evidence, in our opinion, the court by instruction numbered 6, declared the law substantially in harmony with the uniform holdings by this court. That instruction was as follows: £‘Gentlemen of the jury, the State in this case seeks to some extent to convict the defendant of the crime charged on circumstantial evidence, that is, there is no evidence by any witness that saw the fatal blow struck. Evidence is of two kinds, direct and circumstantial; circumstantial evidence is proof of certain facts and circumstances in a certain case in which the jury may infer other and connected facts which usually and reasonably follow according to the common experience of mankind; crime may be proven by circumstantial evidence as well as by direct testimony of eye witnesses, but the facts and circumstances in evidence should be consistent with each other, and with the guilt of the defendant, and inconsistent with any reasonable theory of defendant’s innocence.”

Upon the question of the credibility of witnesses and the weight to be attached to their testimony, to which the attention of the court was directed by defendant’s counsel, that subject was entirely and properly covered by instruction numbered 8 given to the jury by the court. We deem it unnecessary to reproduce the instruction in full, but it will suffice to say that it substantially told the jury that they-were the sole judges of the. credibility of the witnesses and the weight and value of their testimony; that in determining such credit, weight and value to be attached to the testimony of any witness the jury should take into consideration the character of the witness, his or her manner on the stand and of testifying, his or her interest, if any, in the result of the case; his or her relation to or feeling for the defendant or the deceased; the probability of his or her statement, as well as all other facts and circumstances detailed in evidence; and were finally told that if they believed any witness had .wilfully and knowingly sworn falsely to any material fact in the case, they were at liberty to disregard all or any part of such witness’s testimony. Manifestly the directions to the jury were sufficiently full upon that subject to properly guide them in considering the question treated of by the instruction.

Counsel for appellant further complains concern-, ing the subject of instructions to the jury, that the court erroneously and improperly declined to give instruction numbered 10, requested by the defendant. This instruction was as follows: ‘ The court instructs the jury that if you find and believe from the evidence that the evidence of Henry Killion, the codefend'ant of Frank Shelton, was obtained by threats and through fear from or by reason of any promise from the officers of the court or prosecuting attorney, you should weigh his evidence with great care and caution, as evidence obtained in this manner shows the vital interest of such codefendant, or accomplice, and could not be taken as a free and voluntary statement of such codefendant or accomplice given under and after such codefendant or accomplice had been cautioned that such statements may be used against him.” It is sufficient to say upon that proposition that the instruction was properly refused. In our opinion instruction numbered 7, as heretofore quoted, directing the jury respecting the testimony of an accomplice, fully covered that subject, and furnished ample directions to the jury necessary to an intelligent consideration of the testimony of an accomplice and advising them of the caution with which such testimony should be received. Instruction numbered 10 as offered by the defendant, would clearly be an argument to the jury in the form of a declaration of law. It is fundamental that the court in declaring the law upon any subject should not comment upon the facts or call the jury’s attention especially to particular facts developed in the testimony. The manner and means of inducing an accomplice to testify in favor of the State and the fact that he testified with a view of getting a lighter punishment, are matters of legitimate argument before the jury, but it would manifestly be erroneous to point out those facts and say to the jury that you must specially consider these in the weighing of his testimony. The court in the instructions given upon that subject, told the jury that they ought to receive the testimony of an accomplice with great caution, and that before they convicted the defendant upon that character of testimony they ought to be fully satisfied of its truth. In developing the testimony before the jury it was legitimate and in entire harmony with appropriate cross-examination to show to the jury all the facts and circumstances which were held out as an inducement to the accomplice to testify. This was proper and a matter of legitimate argument before the jury upon that subject, but as heretofore indicated, it would be clearly erroneous to undertake to embrace in an instruction the particular facts developed in the testimony as matters of inducement for the accomplice to testify.

It is further insisted by counsel for appellant that the court in its instructions failed to designate the punishment that the jury might inflict if they found the defendant guilty of murder of the first degree. It is sufficient to say upon this proposition that the court properly instructed the jury as to the essential elements necessary to be found by the jury in order to find the defendant guilty of murder in the first degree. It is true that the court told the jury that if they should find the defendant guilty of murder of the first degree they should simply so state in their verdict. Doubtless the trial court was following the old form of instruction when there was no discretion in the jury as to the infliction of punishment for murder in the first degree. The act approved March 18, 1907, p. 235, sec. 1817, provides substantially that the jury, if they find the defendant guilty of murder of the first degree, shall decide which punishment shall be inflicted, either death or imprisonment in the penitentiary during his natural life. The jury in the case at bar returned a verdict finding the defendant guilty of murder of the first degree, and decided in accordance with the provisions of section 1817 of the Laws of 1907, that his punishment should be fixed at imprisonment in the penitentiary during his natural life. While the court did not designate the punishment that the jury was authorized to impose, yet the jury fixed the punishment that was authorized by the law, and we are unable to see how the defendant’s rights were prejudiced by reason of the failure of the court to designate the punishment. They were required, as before stated, to find every essential element necessary to constitute the offense of murder of the first degree, and they found the defendant guilty of that offense and fixed his punishment at life imprisonment, and we repeat that we are unable to see upon what theory the defendant could have been injured' by reason of the failure of the court to designate the punishment.

VIII.

Finally it is insisted by appellant that the evidence as developed upon the trial of this cause was insufficient to support the verdict. We have carefully analyzed the testimony as disclosed by the record. It was the exclusive province of the jury to determine the weight of the testimony introduced both by the State and the defendant. If they believed the testimony of the accomplice and some of the other witnesses who testified in the cause, we are of the opinion that such testimony furnished full support to the verdict returned'. We are not unmindful that this conviction rests largely upon the testimony of an accomplice, but unless we have reached that point in the administration of the laws of this State that we are to depart from the uniform rules announced applicable to the testimony of an accomplice and overrule an unbroken line of decisions upon that subject, then there can be no escape from the conclusion that at least it was a question for the jury, with all the facts before them, to pass upon the testimony of the accomplice, as- well as the other witnesses, and return a verdict in accordance with the conclusions reached. The witnesses testifying in this cause were before the court and jury, and as ha,s been repeatedly said, jurors and the courts have' opportunities of judging of the credibility of the witnesses and the weight to be attached to their testimony that are not afforded an appellate court; hence, our conclusion is that the verdict of the jury should not be disturbed by reason of the claim of the insufficiency of the testimony.

We have indicated our views upon the legal propositions disclosed by the record, which results in the conclusion that there was no substantial error such as would require this court to reverse and remand this cause; therefore, the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


text:
    THE STATE v. WILLIAM TIERNAN, Appellant.
    Division Two,
    November 23, 1909.
    1. ELECTION FRAUDS: Registration: Proof. Any witness who knows the fact is competent to testify that there was a general registration of voters in the city on the dates charged, and no one is better qualified to prove that fact than the secretary of . the board of election commissioners under whose supervision the registration was made.
    2. -: Evidence: Minutely Specific. Where the witness stated there was a registration of voters on certain days in all the election precincts in the city, and his attention was then called to the precincts by number, there is no failure to show that the offense was committed in the eighth election precinct, solely because in answering to the numbers the witness did not repeat the word “election” after eighth.

      3. -: Failure to Indorse Names of Witnesses: Not Preserved for Review. The point that the names of the State’s witnesses were not indorsed on the indictment, and that the indictment was found without any evidence before the grand jury, will be unavailing on appeal unless raised by a timely motion to quash or preserved in the motion for new trial or in arrest.
    4. -: Taking Defendant to Prosecutor’s Office. Unless it is assigned in. the motion for a new trial, as a ground therefor, that the defendant when arrested was taken to the office of the circuit attorney for the purpose of getting him to make a statement, the assignment cannot be considered on appeal.
    Appeal from St. Louis City Circuit Court. — Row. Geo. H. Shields, Judge.
    Aeeiemed.

      C. OrricTc Bishop for appellant.
    (1) The court erred in admitting the testimony of Mr. Elspermann, that there was a general registration of voters in the city of St. Louis in September, 1908, when it did not appear that he had any personal knowledge of the fact, and there was no evidence of any official action or notice on the part of the Board of Election Commissioners nor that any such registration was held in pursuance of any law. (2) There was no evidence that the alleged acts of the appellant were committed in any election precinct; the testimony all related to the eighth precinct, and it seems to have been merely assumed, and taken for granted, that it was an election precinct. It was necessary and essential to aver in the indictment that it was an election precinct, as held in State v. Keating, 202 Mo. 197. And it was therefore necessary and essential to prove that it was an election precinct; and it was not sufficient merely to show that the alleged fraudulent registration occurred in a polling place, or in a place where the registration officials were gathered and where the books were kept and signed. (3) The State relied for a conviction on the testimony of the officers of registration who were brought before the court to testify and upon whose testimony (presumably) the conviction was obtained; yet it appears from the testimony and from the official admission of the circuit attorney that none of them were witnesses before the grand jury before the indictment was found and returned, and that the indictment was so found and returned without any evidence tending to show the appellant guilty of the offense charged against him: a very novel proceeding and hardly in consonance with conventional ideas of justice and law. Nor were the names of any of the officers of registration indorsed upon the indictment so as to advise the accused as to who were to be witnesses against him, as he had the right to know. The fact that the indictment was found without the testimony of any material witness against defendant was not developed until during the trial. 4. It appeared on the trial of this case, as in the cases of Clancy, Thavanot and Exnicious, now before this court at this term on appeal, that immediately after the arrest of the appellant, he was taken by the officers to the office of the circuit attorney, “to question him before an information was put against him,” “to get him to make a statement;” that is, to get him to incriminate himself; a very unusual and a very highhanded proceeding, and this under the direction of the prosecuting officer of the State. And the circuit attorney was permitted, over the objection of appellant, to say, in his argument to the jury (the Court simply saying, “confine yourself to the testimony”): “Now I can not believe, and do not believe now, that this man sitting here is the mover in this matter. He has committed this crime, but there must be somebody back of him. He was brought to my office, as the evidence showed. He had the right and the privilege of telling who put him up to it. But, no; he stands here defiantly and sullenly says, I will not tell it!” While this, perhaps, is not a matter for review here, upon technical grounds, we seriously urge that the appellant was prejudiced in his rights; that his rights as an accused were ruthlessly trampled upon; and that the action of the prosecuting officer (1) in causing the appellant to be brought first before him as an examining officer and (2) in urging upon the jury a duty to convict appellant for refusing to answer questions and for also refusing to exercise his privilege of telling who put him up to it, was a gross violation of law and of the rights of the accused; and to permit it to pass without at least strong condemnation will be to establish a dangerous precedent and to' relegate criminal trials to a condition existing before constitutions were adopted.

      Elliott W. Major, Attorney-General, and Jamies T. Blair, Assistant Attorney-General, for the State.
    (1) There was substantial evidence of defendant’s guilt. Defendant did not offer any countervailing evidence. He did not testify. The jury believed the evidence offered by the State. Under such circumstances this court does not disturb verdicts. State v. Rollins, 186 Mo. 505; State v. Miller, 188 Mo. 379; State v. Smith, 190 Mo. 723. (2) (a) The only exception saved during the argument was to the court’s directing the circuit attorney, on objection made by defendant’s counsel, to “confine himself to the record.” No complaint wa.s made that a more severe rebuke should have been administered. On this condition of the record no point .was saved, in this connection, for review. State v. Murphy, 201 Mo. 696; State v. Baker, 209 Mo. 451. (b) No complaint as to erroneous rulings on objections made during the argument of counsel can be considered here since the motion for new trial does not complain of matters of that character. State v. Miles, 199 Mo. 547; State v. Clapper, 203 Mo. 553; Railroad v. Real Est. Co., 204 Mo. 578.
   GANTT, P. J.

On the 21st day of September, 1908, the grand jury of the city of St. Lonis returned an indictment, charging defendant, William Tiernan, with fraudulently registering under a name not his own in the Eighth election precinct of the Fifteenth ward of the city of St. Louis.

Defendant was arraigned and pleaded not guilty. A jury was impaneled and sworn to try the issue thus made. Their deliberations resulted in a verdict of guilty and the infliction upon defendant of a penalty of three years ’ imprisonment in the penitentiary. Motions for new trial and in arrest of judgment were duly filed and overruled, judgment was entered upon the verdict and defendant appealed. In due time defendant filed his bill of exceptions.

The State’s evidence tended to show that a general registration of voters was held in the city of St. Louis on the 14th, 15th, 16th and 17th of September, ■1908; that the registration booth for the Eighth precinct of the Fifteenth ward' in said city was at 819 North Twenty-first Street; the registration judges in the precinct named were John J. Hickey, August O. Huesser, Fred Reitz and Joseph Byrne, and the clerks were Louis Hoffman and John Gallager, all duly commissioned except Byrne, who was sworn in to fill a vacancy. The judges were furnished with cards containing a form of oath to be administered to those applying for registration, and also furnished with a list of questions as to their qualifications, to be answered by such applicants.

On one of the two days mentioned, while the registration was in progress, defendant presented himself before the judges and clerks of registration of the Eighth precinct of the Fifteenth ward of the city of St. Louis at 819 North Twenty-first Street, as charged. The prescribed oath was administered to him and the formal questions propounded as to his qualifications to vote at that place. His answers were such as, if true, to show him to he a qualified voter of said precinct and ward. Defendant stated, in answer to the questions of the judges, that his name was “ Frank Clay.” He then signed the name ‘‘Frank Clay” upon the registration books. He was arrested on the spot. Being asked Ms name by the arresting officer, defendant answered that it was “Frank Clay.” He was taken to headquarters, there gave his name as ‘ ‘ William Tiernan,” and stated that he lived at 723 North Twenty-first Street. It was shown that no such number in fact existed, and the occupant of the house at number 721 had never seen defendant before the trial. Defendant was identified as William Tiernan.

Defendant offered no evidence, but asked the court to direct an acquittal. The request was refused. The court instructed the jury as to the law in the case, including the presumption of innocence, reasonable doubt, the credibility of the witnesses, argument of counsel, etc. To all these instructions defendant, by his counsel, saved his exceptions. He also saved certain exceptions to portions of the argument of the circuit attorney.

I. The indictment is not assailed. It is identical in its charging parts with the information approved by this court in State v. Cummings, 206 Mo. 613, 616, and correctly charges an offense under section 2120j of the Act of March 24, 1903, Laws 1903, p. 158.

No error is suggested in the record proper, and we have been unable to discover any. The arraignment of defendant, the impaneling of the jury, the return of the verdict and the sentence were all .in the usual and regular form.

II. The defendant has assigned various errors and they will be noted in their order.

John Ellsperman, Jr., testified he was Secretary of the Board of Election Commissioners of the city of St. Louis, and identified the records of his office offered in evidence of the registration lists made on September 14th, 15th, 16th, and 17th, 1908-, of persons residing in the Eighth precinct of the Fifteenth ward of the city of St. Louis. ■ He also identified the ward lines or boundaries of the Eighth precinct of the Fifteenth ward. He was then asked if there was a general registration of voters in said city in all election precincts on the said date, to which defendant objected as calling for incompetent testimony and not the best way to prove it. The objection was overruled and properly so. Any witness who knew the facts could have testified there was a general registration on those days and no one naturally was better able to testify to that fact than the secretary of the board under whose supervision the registration was made.

III. There is no merit in the insistence that there was a failure to show that the offense was committed in the Eighth election- precinct. The witness had stated there was a registration on said days in all the election precincts of the city and his attention was then called to the precincts by number. It was wholly unneccessary to repeat the word “election,” every time he mentioned the precinct.

TV. As to the contention that the indictment was found without any evidence before the grand jury and that the names of the registration officers were not indorsed upon the indictment, it suffices to say it is bottomed upon an admission of the Circuit Attorney which falls far short of the insistence of counsel for defendant. While the admission may disclose a practice which should be avoided in the future, it comes short of admitting that the indictment was found without evidence. Moreover, no complaint was made on this point, either by timely motion to quash, or in either the motion for new trial or in arrest.

Y. Equally unavailing is the assignment now made against the practice of taking the defendant when he was arrested to the office of the Circuit Attorney to get him to make a statement and the statement of the Circuit Attorney on that point, for the reason that no such grounds are assigned in the motion for new trial.

We have considered the whole record and find no reversible error. The judgment is affirmed.

Burgess and Fox, JJ., concur.