text:
    THE STATE v. THOMAS L. MARTIN, Appellant.
    Division Two,
    June 30, 1910.
    1. FORGERY: Deed: Record as Evidence. The deed alleged to have been forged by defendant must be produced at his trial, or its absence satisfactorily accounted for, before evidence can be given to prove the forgery; and if it is in defendant’s hands, sufficient notice must be given him to produce it. And so where the State’s witnesses testified that five days after the deed was recorded a woman, representing herself to be defendant’s wife, called at his office for the deed, and took it away; and another witness testified that he called upon defendant at the jail and he stated the deed was in his possession, and he would turn it over to him if his lawyer said so; and no subpoena duces tecum was served on the wife to produce it, though about a year prior to the trial the officer twice called at her house to arrest her, but did not find her; and there is no evidence that the deed was lost or destroyed, and no notice was served on either defendant or his wife to produce it, the admission of a certified copy of the record of the deed in evidence was error.
    2. -: Comparison of Signatures: Impeachment. A witness on cross-examination should be permitted to testify that he compared the prosecutor’s signature on a lost receipt — which defendant testified prosecutor gave him for a part payment for the house, to which it is charged defendant forged a deed— with prosecutor’s admittedly genuine signature on a check, and what the witness’s opinion was as to the two signatures being those of the same person. Such testimony might tend to strengthen defendant’s defense, and it was proper cross-examination, and should not have been excluded as an attempt to impeach prosecutor. And the testimony was material because other witnesses testified that they saw defendant pay prosecutor the money and the prosecutor give him a receipt, and there was evidence both for the State and defendant that prosecutor had agreed to give defendant a deed for a partial payment and wait for the balance of the purchase money, and defendant testified that the deed had been executed.
    3. -: Flight: Arrest: Breach of Bond: Ruse. Where defendant had given bond and his case was continued until January, and he went off to Texas, and in October was arrested on a criminal charge, which was a ruse and instituted by his bondsmen who became uneasy lest he would “jump his bond,” evidence of his going to Texas and of his arrest there, and of his being brought back and lodged in jail, was error. The arrest was premature, and did not tend to establish the prior charge of forgery.
    4'. EVIDENCE: Erroneous: Cured by Instruction. An instruction directing the jury to disregard evidence improperly admitted in a criminal case will not cure the error of admitting it, if it was of a character prejudicial to defendant.
    5. -: Change of Venue. It is error to permit the prosecuting attorney to ask defendant if he had not taken a change of venue in the case on trial.
    6. -: In Criminal Cases. As life, liberty and reputation are more valuable than property, the rules' of evidence should be more carefully observed in criminal than in civil cases.
    Appeal from Jackson Criminal Court. — Row. E. E. Porterfield, Judge.
    Reversed and remanded.

      Noyes & Heath for appellant.
    (1) The court erred in sustaining the objection to ' the evidence of witness Webb, as to the receipt for $500; Strange v. Crowley, 91 Mo. 287; Kleimann v. Giselmann, 114 Mo. 437. (2) The court erred in permitting the evidence of Langsdale, Reynold, Murphy and Lee, as to the defendant being arrested in Texas and as to other charges against him. R. S. 1899*, sec. 4680. (3) The court erred in permitting the State to cross-examine the defendant on matters not mentioned in direct examination. State v. Patterson, 88 Mo. 88; State v. Chamberlain, 89 Mo. 129; R. S. 1899, sec. 2637; State v. Fullerton, 90 Mo. App. 417; State v. Tract, 36 Mo. App. 29. (4} The court erred in permitting the State to introduce a certified copy of the deed. Pringey v. Guss, 16 Okla. 82; State v. Lentz, 184 Mo. 223; State v. Flanders, 118 Mo. 227; State v. Teasdale, 120 Mo. App. 692; Carr v. Carr, 36 Mo. 408. (5) The court erred in permitting the examination of the defendant on the change of venue and application for continuance. McDonald v. Cash, 45 Mo. App. 66; Wall v. State, 62 S, W. 1062.

      Elliott W. Major, Attorney-General, and John M. Daws am, Assistant Attorney-General, for the State.
    (1) Defendant objected to the introduction of the two deeds of trust upon the property, because they were transactions after the fact. These deeds of trust were competent for the purpose of showing that defendant was claiming the property under the forged deed, and was exercising rights of ownership by executing mortgages upon the property. (2) Defendant inquired of witness W. S. Webb if he examined the receipt for five hundred dollars from Thomas L. Martin, and signed by Anton Mielkey, at a trial in Judge Seehorn’s court, involving this same property described in the forged deed, and if the signature to the receipt was written by the same man as the signature on the check and note. The State objected to this evidence on the ground that it was a matter of impeachment, and no foundation was laid for the impeachment. As Mr. Mielkey had not been interrogated upon that question, this was a proper ruling. (3) The defendant excepted to the action of the State showing that it was impossible to subpoena Lotta Martin, the wife of the defendant, at the trial of this cause, to bring forth the purported forged deed that she obtained from the recorder’s office. This was¡ competent evidence. (4) The exception to the State proving that the appellant was extradited and brought from Texas to this State for trial, could not be considered, as the court, in instruction fi, instructed the jury that defendant’s arrest in Texas raised no presumption as to his guilt, and the jury were instructed to disregard it in making up their verdict. (5) Objection is made that testimony was introduced that the officers of the court were unable to find Mrs. Martin, wife of appellant. It was obligatory upon the State to produce the deed. In case of loss or destruction of same the certified copy was admissible in evidence. It was so held in State v. Flanders, 1.18' Mo. 237. 2 Bishop’s Crim. Proc. (3 Ed.), sec. 433. The witness in the recorder’s office testified that a woman, who gave her name as Mrs. Martin, had taken the deed from the office. It was proper for the State to show the loss of the deed and thus make ont a primafacie case of its loss before introducing certified copy. • State v. Flanders, supra, 238; Foulkes v. Common, wealth, 2 Bob. (Va.) 836; Bex v. Haworth, 4 C. &■ P. 254; United States v. Britton, 2 Mason 464; Henderson v. State, 14 Tex. 503.
   FOX, J.

— By information filed by the prosecuting attorney of Jackson county in the criminal court thereof, the defendant was charged with having, on the 4th day of April, 1907, forged a certain deed, purporting to be the act of one Anton Mielkey, conveying to himself (defendant) said Mielkey’s interest in certain real property in Kansas City, Jackson county, Missouri, with intent to defraud. He was convicted of said offense, his punishment being assessed at ten years in the penitentiary. From the judgment of conviction defendant appealed to this court.

The evidence on behalf of the State tended to prove that Anton Mielkey lived at 807 Linwood boulevard, Kansas City, Missouri, and was since 1882 owner of the real estate in said city, the deed to which defendant is charged with having forged. Defendant and his wife, Lotta Martin, lived at 3215 Smart avenue, in Kansas City. Mielkey became acquainted with the defendant through the latter’s wife, who had been dressmaker for Mielkey’s wife, and who often visited at his house. It appears that on August 1, 1906, Mielkey conveyed this property by warranty deed to Mrs. Martin, and that several days thereafter Mrs. Martin and her husband, the defendant, re-conveyed the same to Mielkey. As to this transaction Mielkey testified that Mrs. Martin was to hold the property for the Bank of Commerce, and that he had no trouble in getting it back. Oh Christmas day, 1906, defendant went to Mielkey’s home and presented him with a box of cigars and a scarf, the latter being a present from defendant’s mother-in-law. Thereafter, about the latter part of January, Í907, Mielkey was at Martin’s home, and while there he made it known that he wished to sell his Linwood boulevard home, having need of money. Mrs. Martin said that she knew Mr. Winants, of the Bank of Commerce, very well; that the Bank of Commerce “had now a building and loan company in connection with its banking business,” and that if Mielkey would allow her to take his abstract over to the bank, she would ask Mr. Winants to buy his property before buying any other real estate. To this Mr. Mielkey replied: “I will allow you to take the abstract over, but I will not give a deed until I get my money.” This conversation was carried on in the presence of the defendant. The abstract in question was afterwards placed in the Bank of Commerce, and in the latter part of March, 1907, Mielkey delivered the abstract to defendant to have the same examined by a man named Brown, who was in some way to procure money for Martin to enable him to purchase the property, the price'to be five thousand dollars. On March 21, 1907, Mielkey received from Martin a short letter, reading as follows: ‘ ‘ Come over your earliest convenience, Saturday or Sunday, for supper. Want to see you on important business.” A few days iater Mielkey received another letter from Martin, which letter became lost, but the contents of which, as Mielkey remembered same, were as follows: “Tour property is sold for cash, on your approval. Meet me to-morrow at eleven o ’clock at Brown’s office.” Instead of going to Brown’s office, Mielkey went next day to'Martin’s house, and played cards with Martin till about 9 o’clock that evening, when he departed for home. Defendant accompanied bim to the car line. On the way defendant told Mielkey that he had made arrangements with Brown, who represented an Eastern insurance company, whereby he (Martin) could get money to purchase Mielkey’s property; also, that he had received a letter from a friend in the East who had money, and who asked him to look up some good investment. Martin then informed him that he was going to buy this property and build a flat thereon, and then sell the same to his Eastern friend, and make some money by the transaction. He did not give the name of his friend', but stated that he had known him for years, and was raised with him. Some days later Mielkey received from Martin the following undated letter: “Bring the deed when you bring the abstract. Mr. Brown suggests that if you had the deed in the abstract it would do away with a lot of red tape; could get the money right away. This is merely a suggestion. He and I went out and looked over the property this morning.” After receiving said letter Mielkey called at defendant’s home, and again engaged in a game of cards with defendant. Nothing appears to have been said by either, respecting the contemplated transaction, during the progress of the card game. As Mielkey was about to leave Martin’s house Martin volunteered to go with him to the car line. While on the way to the car line Mielkey told defendant that the abstract was at the Bank of Commerce, and that he, defendant, would have to get it. Nest morning defendant brought the abstract to Mielkey, who delivered it to the Dean S. Kelly Abstract Company in order that the abstract might show all transfers of the property down to date. He received the abstract from said company about the 4th or 5th of April, 1907, and took the same, together with the deed which Mielkey had received from Charles E. Welke, from whom he had purchased the property, to Martin’s house. Martin met him at the door and took him into the house the back way. After remaining awhile in the house, defendant took Mielkey down in the basement, where defendant asked him for and received the abstract. On the way to the car line, defendant said he would have the money in a few days, Mielkey replying, “All right; then we will have it all straightened up.” Mielkey explained that the reason defendant took him down in the basement was that the house was being painted, as also the porch, and to avoid the paint they went down in the basement and out through a side door. Next day Martin came to Mielkey’s house and informed him that Brown said that if he (Mielkey) would deed the property to him (Martin), it would do away with a great deal of red tape, and the money would be forthcoming promptly. Mielkey replied that he would not give the deed until the money was ready to be given him, and told Martin to see Brown about it again. On April 8th or 9th, 1907, Mielkey received an undated letter from Martin, the envelope containing it being postmarked, “Kansas City, Mo., Apr. 8-8:30 p. m., ’07.” Said letter contained the following:

■ Mr. Brown says that he can’t handle the proposition in any other way. He says that he could not get the money without sending to the home office. He says it is simply a matter of your trusting the property in my name for a few days. He says he can’t understand why you would trust a transfer only a few months ago, and to the same parties, and not now. He says that he will pay for all trouble if he fails to put the deal through. He says that he will guarantee to put the trade through. Now, Mr. Mielkey, I have told you all that Brown says. Now, if you have enough confidence in my honesty (you know that I would not do you any wrong), I can pay you for the property and make some money. There is no difference in this trade than the one when you made the deed to Lottie. Only this, this proposition will go through. If it should fall through, the deed will be returned and your troubles paid for the expense of the abstract, as the deed won’t be recorded, there will be no harm done.
Your friend,
T. L. MARTIN.
I am to let him know tomorrow; if you accept, meet me Tuesday at Fidelity Trust Company at 11 o’clock a. m.
We can do this if you care to make the trade, you can execute deed and take a mortgage for $5000, neither paper to be recorded. When you receive the money you can give me the mortgage as you know' the purchase money mortgage don’t have to be filed to hold priority.
Don’t you think that this plan protects you till you get the money? This way you run no risk.

The morning after Mielkey received said letter defendant went to the home of Mielkey and said to him, “I don’t want no deed. I have made arrangements with Mr. Brown to get the money on my life insurance policy.” Mielkey said, “Are you sure you can get it?” Defendant said, “Yes, it will he about ten days though; the papers have to go East for approval.” He also said to Mielkey, “Don’t tell my wife anything; yon know that women are so bothersome. After I have it bought, and the plans all made, I will surprise my wife with the plan of the building I am going to put up.” Mielkey went to defendant’s home the following Sunday, had dinner there, and played cards with defendant. The latter accompanied Mielkey to the car line, and told him to call the latter part of the week, which Mielkey did, but found no one at home save Mrs. Dilks, defendant’s mother-in-law. Mielkey again called at defendant’s home the following Monday, when Martin and his wife told him that they had been in St. Louis, attending the funeral of a dead friend or relative. Defendant also told him at that time that the papers had arrived from the East, but that there was a flaw in same and they had to be returned to be rectified. On the 8th or 9th day of May, 1907, Mielkey received from defendant a postal card, saying: “Meet me at Fidelity Trust Co. Tuesday, at 2 p. m., or "Wednesday, at 11 a. m.” The postal card was-postmarked “Kansas City, Mo., May 7, 3 a. m., 1907.” Mielkey did not meet defendant at the appointed place, but went to defendant’s home, where he and defendant "played cards. Defendant told him that evening that he could not get the money from Brown; that Brown had let down on him, and that he, Martin, had made arrangements with his uncle, living in the East, whereby said uncle was to let him have $1500'. Defendant asked Mielkey if that would be enough, Mielkey replying that that would be enough to help him out, and that he could take the balance in notes. On the 10th day of May Mielkey went to the city hall to pay his special taxes, and discovered that the taxes on his Linwood boulevard home had already been paid by the Missouri Savings Association. He then went to the office of the recorder of deeds, where he fonnd the record of a deed purporting to he from him to the defendant, conveying to defendant Mielkey’s Linwood boulevard property, said deed being as follows:

This Indenture, made on the fourth day of April A. D. one thous- and nine hundred and seven, by and between Anton Mielkey, of the county of Jackson, State of Missouri, party of the first part, and Thomas L. Martin, of the county of Jackson, State of Missouri, party of the second part,
Witnesseth, That the said party of the first part, in consideration of the sum of five thousand dollars to him paid by said party of the second part (the receipt of which is hereby acknowledged) do by these presents grant, bargain and sell, convey and confirm unto the said party of the second part,- heirs and assigns, the following described lots, tracts or parcels of land, lying, being and situate in the county of Jackson, and State of Missouri, to-wit: All of that part of the northeast % of the southeast % of section 17, township 49, range 33, described as follows:
Beginning at a pwrt on the south line of Linwood Boulevard in Kansas City, Missouri, 237 feet east of the west line of the said northeast 14 of southeast 14, thence east along the south line of said Linwood Boulevard 60 feet; thence south 125 feet; thence west 60 feet; thence north 125 feet to point of beginning in Kansas City, Missouri..
To Have and to Hold the premises aforesaid, with all and singular the rights, privileges, appurtenances and immunities thereto belonging or in anywise appertaining unto the said party of the second part and unto his heirs and assigns forever; the said party of the first part hereby covenanting that he has lawfully seized of an indefeasible estate in fee of the premises herein conveyed; that he has good right to convey the same; that the said premises are free and clear from any incumbrance done or suffered by him or those under whom he claims; and that the party of the first part will warrant and defend the title to the said premises unto the said party of the second part and unto his heirs and assigns forever, against the lawful claims and demands of all persons whomsoever.
In Witness Whereof, The said party of the first part has hereunto set his hand and seal the day and year above written.
(Seal) ANTON MIELKEY.

According to the record, the deed was acknowledged on the 4th day of April, 1907, before Harry E. Longenecker, a notary public. The filing for record was on the 10th day of April, 1907.

Mielkey denied that he ever gave defendant any such deed as he saw on the record, and a certified copy of which was introduced in evidence. On the evening of the 10th of May Mielkey called at Martin’s house, where they again played cards. Defendant accompanied Mielkey to the car line, and before separating Mielkey said: “Oh, say; I was up to the city hall and I wanted to pay my taxes, and found they were already paid. I wonder whether I had better look up by whom they were paid.” Defendant answered: “No, don’t do that; if they are paid it is so much the better for both of us.” Next day Mielkey had his attorneys examine the records, and on their advice he went to the prosecuting attorney, swore out a complaint, and had defendant arrested.

Harry E. Longenecker, notary public, testified that he never took the acknowledgment to the deed in question; that he was acquainted with the defendant, but not with Mielkey; that the defendant had been in his office a few times, and was there once while he was out; that he kept his notarial seal in a pigeon-hole of his roller-top desk, and in view of anybody who might be in his office when the desk was open. Mielkey testified that he never made, signed, or acknowledged said deed.

The evidence shows that on April 13, 1907, defendant borrowed $1200 from the Missouri Savings Association, payable on the 1st day of May, 1908, to secure, which loan he gave the Association a deed of trust on the property mentioned in the deed in question, and acknowledged same as a single person before John P. Wade, a notary public, which deed of trust was filed for record April 15, 1907; that afterwards, on May 10,1907, he gave said Association another deed of trust on said property to secure the payment of another loan of $1800, -which deed of trust was acknowledged by-defendant as a single person, the same day, before J. T. Allbritain, a notary public, and filed for record on May 11, 1907. This latter loan, according to the testimony, included the former loan; that is to say, the first loan of $1200 was increased to $1800-, and a new deed of trust, that of May 10th, was given by defendant to secure the payment of same.

Claude S. Gossett, who was connected with the office of recorder of deeds of Jackson county, testified for the State that on April 15, 1907, the deed purporting to be from Anton Mielkey to Thomas L. Martin, and which had been recorded on April 10, 1907, was delivered by him to a woman whx> gave her name as Mrs. Lotta Martin; that about sixty days afterwards, ‘ at a preliminary hearing of some kind in Judge Remley’s court,” Mrs. Martin being present, he was asked if she was the woman who got the deed from him, and his reply was, “To the best of my judgment she was the woman that got the deed.” The witness, however, “could not say positively she was the woman.”

The evidence for the defendant tended to prove that the defendant was in St. Louis from the 16th until the 21st of April, 1907, and that his wife, Mrs. Martin, was in St. Louis from the 12th to the 22nd of April, 1907, and that she was not the woman who took the deed in question from the recorder’s office on April 15, 1907.'

J. W. McCann, a witness for defendant, testified that he was with Mielkey and the defendant in a bank building in Kansas City on April 22, 1907, at which time and place he saw Mielkey write a receipt on a small piece of paper and give it to defendant, and saw defendant give Mielkey five hundred dollars in large bills; that Mielkey and defendant talked for some time; that the former wanted to know when he could get more money, when Martin said he (Mielkey) could have a thousand dollars in about a month, and then said he would have it in June.

John R. McMillan, testifying for the defendant, stated that he was at defendant’s house on the 7th, 8th or 9th of May, 1907, when Mr. Mielkey was present; that he overheard a conversation between Mielkey and the defendant, in which Mielkey said to Martin that “he had to have five hundred dollars more,” and that Martin “agreed to get it for him as soon as he could.” The witness did not know anything about the transaction, except that it was about a piece of property.

The defendant testified that he was in the grain business in Kansas City, and had been connected with Richards & Company, of Chicago, and the Benton Grain Company, and F. R. Linton. He had known Mielkey for four or five years, and since the 21st of March, 1907, Mielkey had been a visitor at his house two or three times a week. He never visited Mielkey’s home, but his wife did. That Mielkey delivered the deed in question to him in the basement of his house on the 5th, 6th or 7th of April, 1907, and that the signature to said deed was Mielkey’s signature. Defendant took the deed to the recorder’s office, and paid 85 cents to have it recorded, and had not seen the deed since then. He was to pay Mielkey $5000 for the property, upon which he intended to erect a three or four compartment flat, Mielkey to be paid his money ditring the course of the erection of said flat, fifteen hundred dollars to be paid before the first day of June; that lie paid Mielkey five hundred dollars on the 22d of April, 1907, at the Fidelity Trust Company, Mr. Mc-Cann and Mr. Allen being present when he paid said sum. The money for the payment of the purchase price of the property was to be procured from or -through a Mr. Tabibian, a loan and insurance man, and defendant had also talked to Mr. Van Landingham, of the State Life Insurance Company, and with the representative of the Corn Belt Bank. Mielkey gave him a receipt for the $500' paid him, hut the receipt became lost in Judge Seehorn’s court during the trial of a civil case, and he had not seen it since; that he (defendant) was a prisoner at that time. After he paid the first five hundred dollars to Mielkey, the latter told him that he was indebted to Barber & Barber for $1800', and would have to make payments in June and July, and needed money; that Mr. Tabibian was sick at the time, and negotiations were hanging fire awaiting his recovery. He wrote Mielkey a postal card, and Mielkey called at his house and told him he must have more money; that he told Mielkey he could get him some money in two or three days; that he borrowed six hundred dollars more from the Missouri Savings Association on the 11th of May, and was arrested three hours afterwards. He wrote Mielkey seven or eight letters about the transaction, and the object which he had in view in writing’ the letter of May 8th was to consult with Mielkey about a loan from the Missouri Savings Association. After he received' the deed, Mielkey ordered the tenants occupying the property to move, so that he (defendant) could take possession. In his letter to Mielkey he meant by the expression as to “having the deed in the abstract” that he wished the deed from Mielkey to him to be embraced in the abstract; that he desired this done so that Mr. Tabibian would have no trouble in arriving at a conclusion as to who owned the property. His wife went to St. Louis on April 12th and did not return until April 22d, and he went to St. Louis on April 16th, and returned to Kansas City with his wife. He went to Wichita, Kansas, and to Oklahoma and Texas for the purpose of borrowing money, and had no idea of running away.

On cross-examination the defendant testified that the agreement between him and Mielkey was that he (defendant) was to erect a flat on the property at 807 Linwood boulevard,- and pay Mielkey $5000- for the property out of money he was to borrow to erect the flat; that be was to borrow $17,000 from Mr. Tabibian for this purpose. He did not pay Mielkey a penny at tbe time tbe deed was delivered, but was to pay bim out of tbe money be intended to borrow to erect tbe flat which was to cost $12,000. That Mielkey understood and agreed to tbe deal; that tbe arrangement for tbe money had been made with Mr. Tabibian, and that defendant was to draw on Tabibian as be needed tbe money in tbe erection of tbe flat; that tbe agreement between him and Tabibian bad never been reduced to writing; Tabibian was to be secured by a deed of trust on tbe property and flat. No agreement bad been made with Tabibian as to tbe amount tbe latter would advance at any one time. No plans for tbe building bad been drawn because Tabibian was taken sick, and tbe tenants on tbe property would not get out until May 9th. The whole arrangement fell through because Mr. Tabibian died and be (defendant) was arrested on May 11th. Defendant testified that he paid $375 taxes due on tbe property and paid Mielkey $500'. In tbe agreement with Mielkey, tbe latter was to have no security, but was willing to trust tbe defendant for tbe purchase money. Defendant wrote Mielkey a letter in which he told bim that “if be wanted a deed of trust he (defendant) would make a deed of trust, but that if be did so, then he could not execute another to Mr. Tabibian; that his reason for not telling Mr. Mielkey about Mr. Tabibian was that tbe latter did not want bis name used; that Tabibian told him that tbe money was coming through a Mr. Brown, but be did not know who Brown was at first; that be learned that Mr. Brown of Brown & Gilmore was tbe gentleman through whom Tabibian was handling tbe matter. Defendant testified that tbe reason why be signed tbe deeds of trust to tbe Missouri Savings Association as a single man was that he did not wish to have bis wife know anything about tbe transaction; that neither of tbe notaries public asked bim whether be was married or single. He further testified that he never took Mielkey’s deed to him from the recorder’s office, nor authorized any one to do so, and did not know who had taken it from said office; that out of the first loan from the Missouri Savings Association, which was seven hundred and forty dollars, he paid the taxes on the property, and paid Mielkey five hundred dollars; that out of the second loan he intended to pay Mielkey five hundred dollars, hut was arrested three hours afterwards, and did not pay it.

W. M. Burgess, testifying for the State in rebuttal, ■ stated that he was connected with the Missouri Savings Association; that about the time defendant made application for the second loan, he asked him what he had done with the money he received on the first loan, and that defendant said “he got a few drinks too many, and his wife took the money away from him.”

C. E. Kimpton, a lawyer, testified in rebuttal that he saw the defendant in the jail after his arrest, and that in a conversation had with him with reference to the deed in question defendant told him that the deed was “crooked,” and that it “was in his possession;” that he (witness) was counsel for Mielkey at the time, and that he went to see the defendant in order to get from him the deed which he believed was forged; that the defendant also told him that he would turn the deed over to him if his lawyer said so.

The State offered other evidence in rebuttal tending to show that the defendant and his wife were in Kansas City on April 16, 1907, and that defendant’s wife was at home on the 14th, 15th and 16th, of April, 1907, and left Kansas City on the afternoon of April 16th. .......

OPINION.

I.

There are no objections to the information or to the instructions of the court, and nearly all the assignments of error relate to the introduction of improper testimony. The errors assigned are very numerous, but we will give consideration to such only as appear to ns to be well founded.

n.

It is urged by defendant that the court erred in permitting the State to introduce in evidence a certified copy of the alleged forged deed, proper grounds for the introduction of such secondary evidence not having been laid.

Needless to say, the deed itself was the best evidence, and it was incumbent upon the State to produce the best evidence obtainable. “The forged instrument must be produced and put in evidence before evidence of the forgery will be admitted at the trial, or its non-production be justified from necessity, as by. showing that it is lost or destroyed, or not within reach of the process of the court, or is in the possession of the 'defendant. And in the last instance, not in the others, reasonable notice must have been given him to produce it.” [2 Bish. New Crim. Proc., sec. 433; State v. Flanders, 118 Mo. 227.] There is no evidence that the instrument was lost or destroyed, nor is it shown that the defendant was notified to produce it. Although there was evidence tending to show,that Mrs. Lotta Martin, or a woman who gave that as her name, took the deed from the recorder’s office on April 15, 1907, it does not appear that Mrs. Martin had ever been served with a subpoena duces tecum, or that such had ever been issued. A warrant for her arrest was issued and placed in the hands of the marshal, who made two trips to her house, but failed to find her there. This, however, was about a year before the trial. No further effort had been made to find her since that time. It is not shown that she was not within the jurisdiction of the court at the time of the trial. While the defendant testified that he had not seen the deed since the time he took it to the recorder’s office, one of the State’s witnesses, C. E. Kimpton, testified that the defendant, after his arrest, told him that the deed was in his possession and that he (defendant) could get it. Despite this evidence on the part of the State, no notice was served on the defendant to produce the deed. The authorities all agree that the instrument alleged to he forged must be produced at the trial, or its absence satisfactorily accounted for, before evidence can be given to prove the forgery, and that if the instrument is in the hands of the accused, sufficient notice must be given him to produce it. Mr. G-reenleaf says: “When the instrument or writing is in the hands or power of the adverse party, there are, in general, . . . no means at law of compelling him to produce it; but the practice in such cases is to give him or his attorney a regular notice to produce the original; not that on proof of such notice, he is compellable to give evidence against himself, but to lay a foundation for the introduction of secondary evidence of the contents of the document or writing, by showing that the party has done all in his power to produce the original.” [ 1 G-reenl. on Ev. ('5 Ed.), sec. 560.] Under our statute (Sec. 933, R. S. 1899), before a certified copy of an instrument of writing, conveying or affecting real estate, can be read in evidence, “it shall be shown to the court by the oath or affidavit of the party wishing to use the same, or of anyone knowing the fact, that such instrument is lost, or not within the power of the party wishing to use the same.” [State v. Burlingame, 146 Mo. 207.] This requirement of the statute was not complied with before the certified copy of the instrument was read in evidence, and this being the fact, the court erred in permitting the introduction of said secondary evidence. The defendant testified that the deed was genuine; that it was made and delivered to Mm by Mielkey, and tbat he had it recorded. Mielkey denied that he made or delivered any such deed. The production of the deed, and a comparison of handwritings, would have settled the issue of veracity and disclosed the guilt or innocence of the defendant. Proper diligence was not exercised by the State to secure the original deed and produce it at the trial.

III.

Defendant insists that the court erred in sustaining objections to the evidence of W. S. Webb, a witness for the State, as to the signature to a certain receipt for $500 which defendant claimed Mielkey gave him at the offices of the Fidelity Trust Company on April 22, 1907. McCann, a witness for defendant, testified that on said date he saw defendant pay Mielkey five hundred (dollars and saw Mielkey give him a receipt. Defendant testified that in a civil suit growing out of the same transaction, and tried in Judge See-horn’s court, witness Webb compared the signature to this receipt with Mielkey’s signatures to a certain check and note produced at said trial. Mielkey testified that he had not seen any of said papers since they were produced in Judge Seehorn’s court, and did not know what had become of them.

This question-was asked witness Webb: “Did you compare the signature of Anton Mielkey- on this receipt to the signature of his on his notes and checks ? ’ ’ Answer, “Yes, sir.” Then this question was propounded to him: “Was the signature on this receipt written by the same man that the signature on the check and note was?” The prosecuting attorney objected to the question on the ground that it was “matter of impeachment, for which no foundation was laid,” and the court sustained the objection. Thereupon defendant’s counsel said to the court: “I desire to prove by this witness that he examined, as an expert, the receipt in question, which was a receipt for five hundred dollars from Anton Mielkey to Thomas L. Martin; that he examined the checks and notes made by Mr. Mielkey to different parties, and the signature on this receipt was the same — written by the same man — the same handwriting’ as the signature on the notes and checks admitted by Mr. Mielkey to be his signature.” Notwithstanding this statement as to what the defendant intended to prove by the witness, the court would not allow the question to be put, the defendant excepting to the court’s ruling. Evidently the testimony sought to be elicited was not for the purpose of impeachment, as Mielkey had not been asked whether he gave defendant such receipt. We think the court should have permitted the witness to answer the question. Should the answer be in the negative, the defendant would be the sufferer. If in the affirmative, it would tend to corroborate McCann’s and defendant’s testimony that Mielkey gave the receipt in question to the defendant, and thus strengthen his defense. As the receipt and other papers referred to were lost, it was competent for the witness to say from his recollection of the signatures thereon whether they were those of the same person, although his testimony would not be of as great value as if the papers were before the court. All the evidence was of a secondary or circumstantial character, and we think this testimony should have been admitted. The witness had given some damaging testimony against the defendant, and the latter had the right to cross-examine him fully. “A party to a cause, civil or criminal, against whom a witness has been called and given some evidence, shall be entitled to cross-examine said witness (except where a defendant in a criminal case is testifying in his own behalf) on the entire case.” [Sec. 4655a, Laws 1905, p. 307.] As said by this court in State v. O’Connor, 105 Mo. l. c. 125, "the right of cross-examination must be maintained, or trials will become mockeries, shams, pretenses.”

IV.

Complaint is made of the court’s action in admitting evidence tending to prove that the defendant had been arrested in Texas and brought back to Missouri for trial, there being no evidence that the defendant had fled the State for the purpose of avoiding trial.

It appears from the evidence that after defendant’s arrest on May 11, 1907, on the charge of forgery, he was admitted to bail. The sureties on his bail bond saw him frequently in Kansas City for several months afterwards. In the month of October, 1907, they were unable to locate him, and one of his bondsmen filed a charge of some sort against him in the criminal court of Jackson county, and a warrant was issued for his arrest. He was located in Houston, Texas, and a detective was sent there to arrest and bring him to this State. While in Texas, defendant wrote one of his bondsmen a letter which the former sought to have introduced in evidence, but which, upon objection of the prosecuting attorney, was excluded. Defendant was never tried on the charge pending against him in said criminal court, and it was never set for hearing. He testified that he had endeavored to have the case tried and disposed of, and that the assistant prosecuting attorney informed him more than three times that the case would be called and dismissed. The record shows that on June 28, 1907, the case at bar, on application of the defendant, was continued to the next succeeding term, begun on the first Monday in January, 1908, the same being the sixth day of said month. If the object of defendant’s arrest and extradition in November, 1907, was to compel his attendance at the trial of this ease, certainly the arrest was premature, the case having been continued until the January term. He had been admitted to bail, and was free to go where he chose in the interim. It appears from the record that the case was continued several times, and the evidence is that the defendant was present every time it was called for hearing. One. of defendant’s bondsmen testified that he was afraid defendant “had jumped Ms bond,” and the other testified that he was “a little nervous” about the bond. From the testimony the inference is entirely justifiable that the charge filed against the defendant in the criminal court was a ruse upon the part of the bondsmen to prevent forfeiture of the bail bond by having the defendant arrested and extradited under said charge.

It is quite clear that' all this evidence about the defendant’s arrest and extradition was incompetent, and was bound to prejudice his case before the jury. The prosecuting attorney, in the-hearing of the jury, said, “I want to show that he [defendant] had to be extradited and brought back for trial,” and he certainly did endeavor to prove that such was the fact. “While, at the instance of defendant, the court instructed the jury that the evidence as to defendant’s arrest in the State of Texas raised no presumption as to his guilt, and that they should disregard it in making up their verdict, we are far from believing that said instruction cured the error. It has been frequently ruled by this court that an instruction to disregard evidence improperly admitted in a criminal cáse will not cure the error of admitting it, if it was of a character prejudicial to the defendant. [State v. Mix, 15 Mo. 153; State v. Hopper, 71 Mo. 425; State v. Fredericks, 85 Mo. 145; State v. Ruehner, 93 Mo. 193; State v. Thomas, 99 Mo. 235; State v. Spivey, 191 Mo. 87; State v. Minor, 193 Mo. 597.] As said in the Minor case, supra, “the greatest care should be taken by court and counsel to prevent the introduction of illegal evidence, since, when it is once lodged in the minds of the jury, no one can tell its effect.”

V.

Defendant also complains of thq court’s action in permitting counsel for the State, over defendant’s objection, to ask defendant if he had not taken a change of venue in this case. We think such question was highly improper and prejudicial. The matter of defendant’s taking a change of venue was not for the consideration of the jury, and the question could have no effect other than to create in the minds of the jury an impression inimical to the defendant. [McDonald & Co. v. Cash, 45 Mo. App. 66; Wall v. State, 62 S. W. 1062.]

A careful reading of the bill of exceptions in this case forces the conclusion that the rules of evidence were by no means strictly observed by the prosecution. As life, liberty and reputation are of more value than property, the rules of evidence should be more carefully observed in criminal than in civil cases. The conviction and punishment of a person unfortunate enough to be charged with crime should only follow a fair and impartial trial, and after his guilt is established beyond all reasonable doubt.

We have considered only the more important points made by the defendant. The objections to the evidence and the exceptions to the rulings of the court thereon are so numerous as to preclude consideration of them all.

For the errors pointed out the judgment is reversed and the cause remanded for new trial.

All concur.


source: Caselaw Access Project

author: GANTT, P. J.

license: Public Domain

text:
    THE STATE v. ARTHUR GREEN, Appellant.
    Division Two,
    June 30, 1910.
    1. INFORMATION: Verification: Waiver: Offer of Evidence. The statute permits a verification of the information by the prosecuting attorney upon his information and belief, and defendant waives the point that it was verified by the prosecuting attorney only, and not upon the affidavit of any witness, by failing to challenge it by a motion to quash. Such an objection cannot be made for the first time at the time the State offers to introduce testimony.
    2. EVIDENCE: Statements of Defendant Under Arrest. Voluntary statements made by defendant at the time of his arrest are com- • petent testimony, although he was not advised he was under arrest, and although they were made in answer to questionings by the officer.
    3. -: Reputation. To ask a witness if defendant is not “a hard-working, industrious, honest colored boy” is not the proper way to prove his reputation for peace and quietude.
    4. -: -: Turbulence: Individual Cases. It is not error to refuse to permit defendant, even on cross-examination of the State’s witnesses, to show individual cases of turbulence and fighting on the part of deceased.
    5. -: Good Behavior Since Arrest. Where there is no question of flight in the case, it is not error to refuse to permit the sheriff to state defendant had given no trouble since his arrest or while confined in jail.
    6. -: Defendant as Witness: Cross-Examination. Where defendant has testified that he shot and killed deceased in self-defense, it is not error to permit the prosecuting attorney to ask him on cross-examination if' he “shot to kill” or “intentionally shot deceased.”
    7. -: Scattering Shot: Experiments. To exclude the result of experiments made with the gun with which deceased was shot and with shells taken from the same box, where there is no evidence that the shells contained the same amount of lead and powder as the one used when deceased was shot, is not to do defendant a substantial wrong, where the purpose is to approximate defendant’s distance from deceased by the scattering of the shot, and where the witness is permitted to testify that the greater the distance from deceased the more the shot would scatter, etc.

      8. MURDER: Instruction. Where defendant was convicted of murder of the second degree, an instruction on murder of the first degree is not for review.
    9. -: -: Weighing Testimony-. It is not error to refuse an instruction asked by defendant in regard to the weight to . be given to his own testimony, if the court has already given a correct instruction on the subject for the State.
    10. -: -: No Testimony. It is not error to refuse an instruction on any subject where there is no evidence to support it.
    11. INFORMATION: Preliminary Hearing. It is not necessary that the information in a murder trial show upon its face that a preliminary examination was accorded to defendant; and there is no merit in a contention that the prosecuting attorney had no authority to file the information, where the record before the justice of the peace shows that he expressly waived a preliminary hearing.
    12. REMARKS OF COUNSEL: No Exceptions. Unless exception's were saved to the action of the court in regard to the remarks of the State’s counsel complained of, that action is not for review on appeal.
    13. EXCLUSION OF REGULAR PANEL: Remarks of Judge. A remark by the trial judge, in excluding the regular panel, directing them not to remain in the court room during the progress of the trial, and assigning as a reason therefor that there was another case on the docket to be tried next, in the trial of which some of the evidence offered in this case would be introduced, could have had no bearing on the trial, and the court was clearly acting within its jurisdiction and line of duty.
    14. JUROR: Prejudice Against Negro Race. The fact that a juror on a certain occasion refused to take a drink at the same counter of a saloon at which a negro was drinking, and a personal difficulty with the negro followed such refusal, did not show such prejudice against the negro race as disqualified him from serving as a juror in the trial of another negro for murder of a fellow negro.
    15. QUESTION FOR JURY: Murder in Second Degree. Where from the evidence defendant was guilty of murder in the second degree or entitled to an acquittal on the ground of self-defense, the issue, there being no error in the instruction or the admission of evidence, is for the jury, and their verdict will not be disturbed by the Supreme Court.
    Appeal from Montgomery Circuit Court. — Hon, James JO, Barnettt Judge,

      Affirmed.

      Elliott W. Major, Attorney-General, Chas. Q. Revelle and John M. Dawson, Assistant Attorneys-General, for the State.
    (1) The information is valid, sufficient in form and substance, and no objection is made to it in this court, nor was there any objection made to its sufficiency in the trial court. State v. Wilson, 172 Mo. 420; State v. Long, 209 Mo. 366; State v. Burnett, 203 Mo. 640'; Kelley’s Criminal Law, sec. 474. Defendant objected to the introduction of any evidence for the reason that the information was Hot properly verified. This objection was properly overruled. R. S. 1899, sec. 2477; State v. Temple, 194 Mo. 237. (2) Exceptions were taken to the witness Lorton testifying as to what appellant said at the time of his arrest. This was competent evidence, and a proper ruling on evidence by the trial court. Underhill on Criminal Ev., secs. 129, 163. (3). Counsel for appellant undertook to prove by cross-examination of witnesses Mollie Grant, widow of deceased, and Harriet Windsor, that deceased was a turbulent and quarrelsome man; that Mollie Grant had had him arrested and convicted for assault, etc. This the trial court refused to permit and appellant saved his exceptions thereto. The court ruled properly, as these were specific acts of violence of the deceased against third persons, and are incompetent. Franklin v. State, 29' Ala. 14; Underhill on Criminal Ev., sec. 325; Thomas v. People, 67 N. Y. 218. Had counsel inquired as to the general reputation of the deceased for being a turbulent and quarrelsome man, it would then have been error for the court to have sustained the objection. State v. Zahn, 202 Mo. 29. (4)' It is not essential that the information show upon its face that the appellant had been accorded a preliminary examination. Ex parte Buckley, 215 Mo. 93 ; State v. Jeffries, 210 Mo. 302. Upon the motion for new trial appellant introduced the record of the justice of the peace, showing absolutely that the appellant waived the preliminary examination. This was a privilege that appellant could waive. Ex parte McLaughlin, 210 Mo. 657; State v. McKee, 212 Mo. 138. Section 2457, R. S. 1899, and the Act of 1905, must be read and considered together. State v. Jeffries, 210 Mo. 302. (5) The weight of the evidence was for the consideration of the jury, and where there is substantial evidence to support the verdict, this court will not interfere. State v. Matthews, 202 Mo. 147; State v. Williams, 199 Mo. 137.
   GANTT, P. J.

— On tlie 30th of November, 1908, the prosecuting attorney of Montgomery county filed in the office of the clerk of said county an information, duly verified, charging the defendant with the crime of murder in the first degree in having on the 19th day of November, 1908, shot and killed one Willard Grant. Both the deceased and the defendant were negroes. The defendant being in custody, having been committed by the justice of the peace upon his waiver of a preliminary examination, was duly arraigned at the regular November term, 1908, of the said court, and thereupon the cause was continued to the May term, 1909, to enable the defendant to prepare for trial. At the May term, 1909, the defendant was put upon his trial before a jury, and was found guilty of murder in the second degree, and his punishment assessed at a term of thirty-five years in the State penitentiary.

The evidence on the part of the State tended to prove that the defendant was a negro man about twenty-four years of age, and the deceased, Willard Grant, was also a- negro man, married and living in Montgomery City at the time of the homicide. On the night of November 19, 1908, there was a dance at the house of the deceased and a number of negroes were present, among them the defendant Arthur Green, Ms brother Wesley Green, Wes Windsor and his wife and her daughter Mary or Mamie Howell. The house of the deceased consisted of three rooms, the Mtchen and an east and west room. On the evening of the dance, in the Mtchen of the said house, there was a keg of beer. The deceased, during the evening, was busy, most of the time, drawing the beer from the keg and delivering it to the guests by the drink. About ten o’clock that evening, the Windsor woman had observed Wesley Green and her daughter, Mary Howell, out in the yard, and upon Wesley returning to the house she accused him of having taken advantage of her in his relations with her daughter, and a quarrel ensued in which the other women present joined the Windsor woman in the attack upon Wesley Green, and there was considerable disturbance on account of the loud noise occasioned by the talking, threatening and quarreling. The deceased was at that time still in the kitchen with Wes Windsor, and it appears that Windsor heard some one say that his wife’s throat was cut, and he immediately went into the room where Wesley Green and the women were having their disturbance. As he went in, Windsor raised a chair for the purpose of striking Green, and at this juncture the deceased, Willard Grant, came in from the kitchen and commanded peace, and then went out of the house.

The evidence tends to show that while this attack was being made upon his brother Wesley, the defendant, Arthur Green, left the house and went across the street to his own home and procured a single-barrel shotgun and some shells and started back towards the house of the deceased. By this time the guests had dispersed from the house in different directions. The testimony discloses that as the defendant returned toward the house of the deceased, he met the deceased in the road or street at a point about fifty-eight feet east of the gate in front of the deceased’s house and there shot him with a single-barrel shotgun, making a wound an inch in diameter three inches below the axilla of the left arm, the shot entering the left lnng cavity over the heart and some of them passing to the center of the body.

The evidence also tended to prove that a pick belonging to the deceased was found on the ground about fifty-eight feet east of the front gate of the deceased’s yard, and that bloody spots were observed on the ground and on the fence leading from and beyond seventeen feet west of where the pick was found to the front porch of the deceased’s house, where he was found dead a few minutes after the shot was fired. Several witnesses identified the defendant as the person who fired the fatal shot, and one of the witnesses testified that as the deceased came back down the street or road he said, “Where is the black s— of a b— at, I will get Mm,” and soon after fired the shot which killed the deceased. These witnesses, also testified that at the time the deceased was shot, he had nothing in his hands, no weapon of any kind, and was making no demonstration towards the defendant.

On the part of the defendant the evidence tended to show that his general reputation for peace and quietude in that community was good, and there was some evidence to the contrary. His testimony tended to show that he attended the dance on the night of November 19, 1908, at the home of the deceased, and was one of the musicians on that occasion; that upon his brother becoming involved in the difficulty with the Windsor woman, he thought his brother was in danger of being seriously injured and thereupon he immediately went out of the house across the street and to his own home, calling to his brother Wes to come on and go home; that he procured the shotgun and some shells, loaded the gun and started back towards the house of the deceased; that he stopped and called for his brother Wes, and while standing there he heard someone running towards him and suddenly discovered the deceased approaching him with a pick in his hands and raised np in a threatening and angry manner as if to strike the defendant, and that defendant, to save his own life, shot the deceased in self-defense.

Defendant also offered evidence tending to show that the wound upon the deceased consisted of one wound an inch in diameter and that the defendant was in close proximity to the deceased at the time he fired the fatal shot, and in support of his contention that the deceased was very close to him when he shot him he offered experimental evidence as to the distances within which the shot would scatter and those in which they would not scatter.

Defendant also offered testimony tending to show that deceased was intoxicated at the time of the killing, and bore a bad reputation in the neighborhood in which he resided for peace and quietude when he was intoxicated, and that the deceased was a person six feet and six inches in height and weighed from two hundred pounds to two hundred and forty pounds, and was a man of great strength.

The defendant testified in his own behalf that he was twenty-four years of age and had lived in Montgomery county all of his life, and at the time of the killing was living with his mother in Montgomery City; that he had known the deceased six years and their relations were friendly and they had never had any trouble; that the last time he saw the deceased was that night before the killing, deceased was drunk; that when defendant left the house of the deceased, his brother Wesley was threatened, that the women had all run into the room where his brother was and were assailing him, and that Wes Windsor came through the door with a chair trying to get at his brother to hit him and thereupon, he, the defendant, went out of the door; that before going, he saw his brother was overpowered, and he went home to get a gun to defend him. He got his gun and started back and saw Buster Anderson and Lucy Murphy, two of the young negroes who had attended the dance, and asked them for his brother. At that time he was in the middle of the road in front of the deceased’s house. When he called the second time for his brother he was informed that the latter had gone over towards the blacksmith’s shop, and defendant stood there looking to see if he could see his brother, and while standing there with his gun in his hand he heard a heavy running behind him and turned and saw the deceased Willard Grant with his pick thrown back to strike him, and to save his own life, he shot and killed him. That the deceased was so close to him at the time he fired that he could not put the gun to his shoulder; that he fired without taking aim. On cross-examination he testified that at the time the women were attacking his brother in the dance room, he did not see any of them have any weapons. There was also evidence tending to show that the defendant’s clothing was torn at the time he was arrested that night. The gun with which the killing was done was found in an alley nearby that night.

At the close of the evidence the court instructed the jury on murder in the first degree and second degree and on self-defense, the competency of the defendant as a witness in his own behalf and on the credibility of witnesses generally, the presumption of innocence and reasonable doubt. In behalf of the defendant the court gave an additional instruction on self-defense and modified a number of other instructions requested, all of which will be considered as occasion may require in the course of the opinion. Within four days after the rendition of the verdict of guilty, the defendant filed his motion for new trial, which was heard and overruled, and also his motion in arrest of judgment, which was heard and overruled. And the defendant was then sentenced in accordance with the verdict of the jury and from that judgment he has appealed to this court. Upon the call of this case upon the docket counsel waived oral argument and by permission of the court leave was given the defendant to file a brief within ten days and the same time was given the Attorney-General to file a reply to the defendant. The defendant has not availed himself of the privilege of submitting the case on brief, but the Attorney-General has filed his brief in the cause.

I. The information is sufficient in form and substance, and is such as has often met the approval of this court, and no objection has been made to it in this court, nor was there any made to it in the circuit court. The defendant was duly arraigned and entered his plea of not guilty. The jury was duly and regularly impaneled and sworn to try the cause.

II. The Attorney-General with much industry has called attention to all the exceptions to the rulings of the court on the admissibility and objection to testimony. The first of these objections was to the introduction of any testimony, because the information was verified by the prosecuting attorney only, and not upon the affidavit of any witness. In State v. Temple, 194 Mo. 241, a like objection was made, but it was there ruled that our statute permits a verification of an information'by the prosecuting attorney upon his information and belief and that the defendant waived this point by failing to challenge the information by motion to quash. That such an objection could not be made for the first time to the introduction of testimony. [State v. Brown, 181 Mo. l. c. 226.] The objection was properly overruled.

Mr. Lorton, a witness for the State, was asked as to certain statements made by defendant at the time of his arrest in explanation of the absence of his hat and the torn condition of his clothing, and defendant’s counsel objected for the reason that defendant was under arrest and he was not advised he was charged with murder. There is no pretense that he was threatened or had been offered immunity. Prima facie his statement was voluntary and the fact that it was obtained by the questioning of the officers, did not render it inadmissible or incompetent. [Underhill on Evidence, sec. 91; State v. Patterson, 73 Mo. l. c. 702, 705.]

The objection by the State to the question propounded to W. W. Hammack, if defendant was “a hard-working, industrious, honest colored boy,” was properly sustained. This was not the proper way to prove defendant’s general reputation for peace and quietude nor good character.

There was no merit in the objection to the testimony of the sheriff, Mr. Ernest, as to the finding of the pick and the marking of the place by digging a hole. The witness was perfectly, competent to testify as to the place where it was found.

The objections to the questions asked of Mr. Ernest in regard to statements made by defendant to the prosecuting attorney after his arrest were properly overruled, on the same ground as already noted in regard to Mr. Lorton’s evidence.

No érror occurred in refusing to permit the sheriff to state defendant had given no trouble since his arrest. It was immaterial. There was no suggestion of flight in the case.

There are various other exceptions grouped together by the Attorney-General that are -so clearly without merit that we do not feel called upon to reproduce them, especially as counsel have not thought them important enough to attempt to sustain them in a brief in this case. We have read the record carefully in each of these instances and have no doubt whatever of the propriety of the court’s ruling in each of them.

When the widow of the deceased, Mollie Grant, was on the stand, counsel for the defendant on his cross-examination of her inquired of her, if on a certain occasion in 1899 the deceased did not run her out of her house and beat and abuse her daughter, and if she did not make a complaint against him for that assault. To this the State objected for the reason that it only went to prove a specific act of violence against a third party and it was incompetent to prove that the deceased was a turbulent and quarrelsome man, in this manner. A like question was propounded to her in regard to an assault upon one Addie Bundy on a certain occasion and the court sustained the same objection thereto for the same reason. The court permitted the defendant to interrogate this witness as to his general disposition as a quarrelsome man when under the influence of liquor. We think unquestionably the general reputation of the deceased as to being of a rash, turbulent disposition, in view of the defense interposed, to-wit, that of self-defense, was entirely proper, but we also think that the circuit court was right in refusing to permit the defendant to select individual cases of assault, even on cross-examination, to show this turbulent disposition. [Franklin v. State, 29 Ala. l. c. 19; People v. Thomas, 67 N. Y. 218; State v. Zorn, 202 Mo. l. c. 29.]

Numerous other exceptions appear in the record to the admission and exclusion of testimony, but we discover no error in the ruling of the court thereon, for the reason that the exceptions were either so unimportant, or so clearly groundless, or the evidence elicited or excluded was so utterly harmless in view of the whole record, that no ■ reversible error was committed by the court in that respect.

An objection which was relied upon by the defendant’s counsel with apparent earnestness and sincerity was made to a question asked by the prosecuting attorney of the defendant while he was on the stand, and after he had testified that he shot and killed the deceased in self-defense, “if he shot to kill” or “intentionally shot the deceased,” and the defendant answered that he shot to save his own life. We think there can be no donbt whatever that this was proper cross-examination and there was no error in permitting the question and in overruling the objection.

Considerable time was occupied in the examination of Mr. Ball as an expert in regard to his experiments with a single-barrel shotgun in shooting at objects with certain shells taken from a box of shells from which the defendant testified he had taken the shell with which he loaded .his gun with which he killed the deceased. The court refused to permit the witness to testify to his experimental or demonstrative evidence for the reason that no evidence was produced to the court showing that the shell used in the experiment contained the same amount of lead and powder that was in the shell that the defendant used when he shot the deceased, but permitted the witness to testify as an expert as to the distance a gun of the size, quality and gauge of the gun used by defendant would scatter shot, and permitted him to testify as to what distance this kind of a gun would scatter the shot in a given distance from the muzzle of the gun to the object struck. The witness testified that the scattering of the shot would be the same with a twelve-gauge whether it was a high class gun or a cheap gun, and that the scattering of the shot from the muzzle of the gun would be more in a greater distance than, in a shorter, and that at a distance of three feet from the muzzle of the gun it would make a hole in the object struck from one to one and a quarter inches in diameter, and that at a distance of six feet the main hole would be smaller in diameter with some scattering shot around the main hole. This witness’s evidence tended to show that the muzzle of the gun was close to the deceased at the time the shot was fired, there being no scattering of shot around the wound, which was shown to be about an inch in diameter. After a careful consideration of all that was said by counsel and the court on this subject, we are satisfied that the court permitted all the evidence which had any tendency to aid the jury in reaching a conclusion as to the approximate distance of the defendant from the deceased when he shot bim and that the exclusion of the other testimony in no manner wrought any harm or injury to the defendant. And there was. clearly no reversible error in the action of the court in this regard. We have carefully read the whole record and noted the objections and exceptions to testimony made by defendant’s counsel and we have been unable to discover any substantial ground for complaint in regard to the action of the court in admitting and rejecting testimony.

III. In regard to the instructions, it need only be said that the court correctly defined the words willfully, deliberately, premeditatedly, malice and malice aforethought as those word's have time and again been defined with the approval of this court.

While we can discover no objection whatever to the instruction on murder in the first degree, inasmuch as the jury found the defendant guilty of murder in the second degree only, the instruction on murder in the first degree is not before us for review. The instruction defining murder in the second degree was correct and has often met the approval of this court.

The other instructions in regard to reasonable doubt, the presumption of innocence, the credibility of witnesses are all in the usually approved form. And the modifications of the instructions requested by the defendant were proper and afford no ground of complaint.

The court refused an instruction numbered one re quested by the defendant, in regard to the weighing of testimony of the defendant himself, but there was no harm in this action of the court, if for no other reason, because the court had given a proper instruction on this subject of its own motion in an instruction numbered six.

There was no error in refusing instruction number two prayed by the defendant, because there was absolutely no testimony on the subject and it could have done no good and its refusal worked no harm. It was entirely unnecessary.

IV. In the supplementary motion for new trial, complaint is made that the prosecuting attorney had no authority to file the information in this case, because the defendant had not been afforded a preliminary examination before a justice of the peace before the filing'of said information. And the same ground is asserted in the motion in arrest. In State v. Jeffries, 210 Mo. 302, and in Ex Parte Buckley, 215 Mo. 93, it was held that it was not essential that an indictment or information should show upon its face that the defendant had been accorded a preliminary examination. In this case there is no merit whatever in the proposition in the motion for new trial that the defendant was denied a preliminary examination. The defendant himself introduced the record of the justice/ of the peace showing that he was brought before the justice for preliminary examination and expressly waived it. This was a privilege that he could waive. [Ex Parte McLaughlin, 210 Mo. 657; State v. McKee, 212 Mo. 138.]

V. Complaint is made in the motion for new trial of alleged improper remarks by the counsel for the State in the argument of the case. As to this it is only necessary to say that no exception to the court’s action in this respect was made, and of course these remarks are not before us for review. This has been too often decided to require a citation of authority.

VI. Complaint is also made of a remark made by the trial court in excusing the regular panel of jurors and directing them not to remain in the court room during the progress of the trial, because there was a case on the docket to be tried immediately following this case, in which some of the same evidence would be introduced that was offered in this case. There is no force whatever in the point. The trial court was acting within his jurisdiction and the lines of his duty and his remark could not have had the remotest bearing upon the trial of this cause.

VII. Among other grounds for a new trial it is asserted that one of the jurors, John Q. Adams, was biased and prejudiced against the negro race in general, and that on the 5th day of May, 1909, he was engaged in a personal difficulty with John Stewart, a negro, because he refused to drink at the bar of a saloon at the same time this negro was drinking at the same bar. The voir dire examination of this juror is preserved in the record and he qualified as a competent juror and no objections or exceptions were taken to his sitting as a juror in the case. The mere fact that this juror refused to put himself on a social level with the negro Stewart did not disqualify him to sit in the trial of this cause or render him incompetent of rendering a fair and impartial verdict under the law and the testimony in the case.

VIII. Finally the cause was submitted to the jury under proper instructions and there was ample evidence to support the verdict. The defendant had a fair and impartial trial. According to his own evidence he left the house of the deceased and went to Ms own house across the street and armed Mmself with a deadly weapon and returned in the direction of the home of the deceased. Before firing the fatal shot he was fully advised that his brother Wes Green had left the premises of the deceased and was no longer in any danger from the women who he claimed had assaulted him. In the street he. encountered the deceased and according to the testimony on the part of the State he shot and killed the deceased when the latter was entirely unarmed and was making no demonstration of violence toward the defendant. On the other hand, the defendant had the benefit of his testimony before the jury that the deceased was approaching towards him with an uplifted pick and making a demonstration to assault him and that he fired the fatal shot to protect his own life. If the jury had credited his story they were bound to acquit him, hut it is evident that they rejected it and chose to believe the witnesses for the State who contradicted his testimony. The jury were the triers of this fact and their verdict is final thereon. With the evidence before the jury they were fully justified in finding the defendant guilty of murder in the second degree, and it only remains for this court in the absence, of any reversible error in the record to affirm the judgment, and it is accordingly so ordered.

Burgess and Fox, JJ., concur.


author: FOX, J.

text:
    THE STATE v. CLARENCE RIPEY, Appellant.
    Division Two,
    June 30, 1910.
    1. RAPE: Demurrer. Where the prosecutrix testifies positively to the act of ravishment, and she is corroborated in many things by another witness and the attendant circumstances, the question of defendant’s guilt becomes one for the jury.
    2. TESTIMONY AT PRELIMINARY TRIAL. The testimony of the prosecutrix at the preliminary hearing is competent only for the purpose of contradicting her, and questions asked her on cross-examination having no such tendency are properly excluded.

      3. -: Offered in Evidence: Not Questioned Concerning. Pages from the transcript of the prosecutrix’s testimony at the preliminary trial cannot he offered in evidence unless her attention was called to them and she denied the testimony.
    Appeal from Jackson Criminal Court. — Hon. Ralph 8. Latshaw, Judge.
    Affirmed.

      Philip D. Clear for appellant.
    If fair play on cross-examination of prosecutrix had been permitted, and the transcript of her evidence in the preliminary had been admitted, prosecutrix would herself have plainly shown that these two men, with herself and cousin, near three a. m., went down into a draw amongst small trees to partake of the “forbidden sweet,” and hearing a noise on the hill and seeing a light she screamed “Rape!” believing her guilt was discovered. Miss Richards says she saw a light on the hill before it is claimed that prosecutrix screamed, and that “prosecutrix started to holler when she heard some trouble on the hill.” If defendant be the party, prosecutrix plainly consented. Mr. Jost and the two women were all over the ground in question the day before the trial. He says, and ■ so do prosecutrix and Miss Richards, that the three met under a big electric light by the side of a big house. Here they say they would have gone with him anywhere, no threatening words or assault of any kind having been as yet claimed. They say they were afraid and yet did not call to the people in the said big house. They say they were lost, but Miss Richards knew well where they were. If they had been lost, all the stronger reason appears why they should have called to the people in the big house under the electric light, or else remained there by the street car track till the next owl car came. Prosecutrix claims she screamed once, while defendant choked her, and that she did not scream again till a noise and light appeared on the hill in front of them, when she jumped, ran, screamed, and kept on screaming. The only excuse given by prosecutrix for not screaming during this long conversation, through a part of which sexual intercourse was had, if had at all, is that defendant had choked her once and she was afraid he would choke her again. Yet she testifies that no scratches, no bruises, no marks, no discoloration were on her neck or body, and that defendant did not have or threaten to use weapons of any kind. In this conjunction defendant offered Dr. Ereyman, who, after seeing prosecutrix and defendant, was asked if defendant could have choked prosecutrix so as to prevent her from screaming without leaving marks on her neck, which was promptly ruled out. Exception was saved to the ruling. This was manifest error. State v. Wertz, 191 Mo. 576; State v. Patrick, 107 Mo. 175. In fact, all the questions ruled out by the court are proper. State v. Coats, 174 Mo. 424; Muller v. Hospital Assn., 73 Mo. 242; State v. Hammond, 77 Mo. 159. It is immaterial from what source counsel draws the substance of impeaching questions. Schlicker v. Gordon, 19' Mo. App. 484. It is not necessary that former statements or testimony of a witness be contradictory, but if inconsistent the one with the other this suffices. Cardes v. Prim, 52 Mo. App. 102; Leahy v. Bailroad, 97 Mo. 165; Brown v. Weldon, 27 Mo. App. 261; Baker v. Shaw, 35 Mo. App. 611; Sullivan v. Bailroad, 131 Mo. 1; State v. Stein, 79' Mo. 331. Upon the whole case it is plain that the evidence falls far short of making out a forcible rape. Half resistance or passive resistance is not sufficient to sustain rape where no marks or soreness appear on the person of prosecutrix, even where a girl is sixteen years old (State v. Burgdorf, 53 Mo. 65), and screams at first. State v. Wilson, 9.1 Mo. 410; State v. Perkin, 11 Mo. App. 82; State v. Goodale, 210' Mo. 283. But why the verdict? One controlling reason was the unwarranted language used by Henry Jost in Ms address to the jury, charging that officer Hinman swore' ber throat was marked with finger prints. No such testimony appears in the transcript. This is reversible error. State v. Fairlamb, 121 Mo. 150'; State v. King, 174 Mo. 659; State v. Shipley, 174 Mo. 516. Also “that the monster tried to tear her to pieces.” This is personal abuse and is reversible error. State v. Fisher, 124 Mo. 465 ; State v. Bobbst, 131 Mo. 338; State v. Prendible, 165 Mo. 359. The court committed grievous error in not stopping such argument whether requested .to do so or not. State v. Shipley, 174 Mo. 516; State v. Crowell, 149 Mo. 395.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General,' for the State.
    "Where there is substantial evidence to support the verdict, the appellate court should not undertake to retry the case upon the evidence as disclosed by the record. The court properly submitted this cause to the jury. State v. Wilson, 223 Mo. 173; State v. George, 214 Mo. 271; State v. Cummings, 189 Mo. 626; State v. Swisher, 186 Mo. 1; State v. Dilts, 191 Mo. 665; State v. Mathis, 191 Mo. 587; State v. Dusenberry, 112 Mo. 293; State v. Macks, 140' Mo. 656. The proof clearly shows the crime of rape to have been committed, and that appellant was the guilty one.
   FOX, J.

— This is an appeal from a judgment rendered by the criminal court of Jackson county, Missouri, convicting defendant of the crime of rape.

The prosecuting attorney of Jackson county filed in the criminal court of said county an information charging the defendant with feloniously, forcibly and unlawfully ravishing Mrs. Lulu Jones, between two and three o ’clock on Sunday morning, August 30,1908, in Kansas City, Missouri. The sufficiency of the information not being challenged there is no necessity for reproducing it here. The defendant was duly arraigned, as disclosed by the record, and entered his plea of not guilty. Upon the trial of said cause the testimony tended to prove substantially the following state of facts:

Upon' the part of the State testimony was introduced showing that Mrs. Jones, the prosecutrix, at the date of the alleged crime, was a married woman whose home was in Chicago. She had an aunt by the name of Mrs. Richards, who then lived at No. 1212 Independence avenue, Kansas City, Missouri.

The record discloses that the prosecutrix, Mrs. Jones, her son, who was only two and a half years old, and her mother, had been to Scammon, Kansas, to attend the funeral of her grandfather, who had been taken there for interment from Chicago. On their return trip home they stopped at Kansas City, Missouri, to visit Mrs. Richards. Mrs. Jones was unacquainted with the streets and directions of Kansas City, Missouri, not having lived there since she was a small girl. She had been visiting her aunt, Mrs. Richards, on this occasion for about a week prior to the time of the alleged commission of the offense. On Saturday night prior to the Sunday morning, the time as designated by the prosecutrix that the offense was committed, Mrs. Jones and her cousin, a Miss Catherine Richards, and two gentlemen, a Mr. Smith and a Mr. Thomas, whom they met by appointment, went to Fairmount Park, and spent the evening seeing the various park amusements, returned on the 11 o’clock car, and went to McClintock’s Cafe at Eighth and "Walnut streets, for lunch. After the lunch was finished, they, in company with the two men, went' to Seventh and Grand to take a car for the Richards home, but reached there just after the two o’clock “owl car” had gone, and rather than wait an hour for another the four started to walk to the Richards home at No. 1212 Independence avenue. Miss Richards and the prosecutrix, Mrs. Jones, dismissed the gentlemen escorts on reaching the corner of Independence and Lydia avenue. The men went back south on Lydia avenue. The reason assigned by the two ladies for dismissing their gentlemen escorts was that the place where the Richardses lived was located in an undesirable residence portion of the city, and they did not want it known that they lived at No. 1212 Independence avenue. By an examination of the entire record it seems that the Richards family had only recently moved to No. 1212 Independence avenue. The two ladies, Mrs. Jones and Miss Richards, after separating and leaving their escorts, went across the street, passed around a large house, and went through an alley on their way, supposedly, to the Richards home, which was one block-to the west. _ At this point on their trip the record discloses that they became confused and lost their course and traveled a number of blocks out of their way. While in this confused condition and practically lost, they discovered that a man was following them. They testified that at times this man could be seen slipping and moving very quietly upon them. Both of these lady witnesses testified that this frightened them and at times they would run. In this lost and confused condition they came to where the street runs into a bluff. Confronted by this condition they were compelled to turn and then met the defendant in this cause face to face under a large arc light. Being confused and frightened they inquired of the defendant the way to Independence avenue. He answered them by saying that he would show them if they would follow him. The testimony of these lady witnesses then discloses that the defendant led them down into a deep and dark ravine, saying that he was leading them back to Independence avenue. In crossing the ditch in the ravine, the testimony tends to show that the defendant and Miss Richards both fell; that Miss Richards jumped up and ran, climbing the hill to where she saw a light, and as the prosecutrix, Mrs. Jones, attempted to jump across the ditch, she was caught around her neck by the defendant and thrown to the ground. She testified that she screamed, but that the defendant threatened her with personal violence and forced her to submit to his desires, and then and there ravished her. Miss Richards testifies that she ran up the hill and tried to give an alarm at the first house, but being unable she went to the second house and finally aroused the people in the house and told of the assault on the prosecutrix in the deep ravine below the house. The police were immediately notified and after some fifteen minutes or more from the time of the assault upon Mrs. Jones, Miss Richards, in company with others, started to the ravine where the prosecutrix was last seen. They found Mrs. Jones coming from the ravine, crying and greatly excited. Her dress and underskirts were badly torn; her hat was on the back of her head, muddy and somewhat crushed. There were indications of mud on her back and the testimony discloses that she complained of her throat for some days afterward. After this occurrence she seemed to be very much excited and disturbed and became so immediately after the occurrence and remained in that condition until after she was taken to the Richards home in an ambulance, sent by the police. Mrs. Jones, the prosecutrix, at the time of the alleged commission of the offense charged against the defendant, was passing through her monthly menstrual period. There was also testimony tending to show that on the front or lower part of the shirt that appellant was wearing on the morning of his arrest was found a large fresh stained blood splotch.

Both the prosecutrix, Mrs. Jones, and Miss Richards positively identified the defendant as the man whom they met under the arc light and who committed the offense as charg-ed in the information.

The testimony on the part of the appellant tends to show that defendant was about twenty years old, and that he was engaged as a teamster for a Mr. Scrivener, who had a livery barn at the corner of Independence and Lydia avenues. There was also testimony introduced tending to show that the defendant was a truthful and law-abiding citizen.

The defendant testified in his own behalf. He positively denied the commission of the acts to which Mrs. Jones and Miss Richards testified; he, however, admits that he saw the two men leave Mrs. Jones and Miss Richards near the barn sometime after two o’clock on the Sunday morning, the date as testified to that the crime was committed. He also testifies that sometime after he saw the two men leave the two women, and about thirty minutes afterward, he saw an ambulance with a gray team pass the livery barn and this team and ambulance pass back in about twenty minutes thereafter. The defendant further testified that he stayed at the barn until about three o’clock Sunday morning and that he then went down town and slept in a rooming house until the next morning, when he returned to the stable, where he was arrested. There was other testimony offered by the defendant tending to show that he was at the stable at the time it is testified by the State’s witnesses that the offense was committed.

This is a sufficient indication of the nature and character of the testimony upon which this cause was submitted to the jury.

At the close of the evidence the court fully instructed the jury, embodying every subject to which the testimony as developed upon the trial was applicable. The cause was then submitted to the jury upon the testimony introduced and the instructions of the court and they returned a verdict finding the defendant guilty of rape, as charged in the information, and assessed his punishment at thirty years in the State penitentiary. A timely motion for new trial was filed and by the court taken up and overruled. Sentence and judgment were entered of record in accordance with the verdict and from this judgment the defendant in due time and proper form prosecuted his appeal to this court, and the record is now before us for consideration.

OPINION.

The assignment of errors disclosed by the record before us may thus be briefly stated:

1. The court erred in not sustaining defendant’s demurrer to the State’s case at the close of its evidence, and in not setting aside the verdict of the jury for want of sufficient evidence to support the same.

2. The court erred in not admitting competent and material evidence offered by defendant and in not permitting proper cross-examination of the prosecutrix.

3. The court erred in permitting assistant prosecutor, Henry Jost, to make the remarks in his address to the jury on proper objection then and there made, and erred in making the remarks to the jury, appearing of record.

4. The court erred in overruling defendant’s motion for new trial.

We will give the complaints as embraced in the assignment of errors such attention as their importance merits.

I.

It is insisted that the court erred in not sustaining defendant’s demurrer to the State’s case at the close of the evidence. Upon this proposition it is sufficient to say that we have indicated briefly, yet substantially, the nature and character of the testimony developed upon the trial of this cause, and in our opinion the testimony disclosed by the record developed upon the trial of this case clearly makes it a case in which the guilt of the defendant was a question for the jury- The testimony of the prosecuting witness, Mrs. Jones, as well as that of Miss Richards, tends very strongly to the establishment of the commission of the offense by the defendant with which he is charged in the information. The prosecuting witness testifies in detail as to the acts of the defendant in the commission of the crime. This with the corroborating circumstances as testified to by Miss Richards, and the condition of the clothing of the prosecutrix and other wearing apparel, as testified to by other witnesses in the cause, and the fact of the necessity, by reason of the nervous condition of the prosecutrix, of conveying her to the Richards home hy an ambulance in charge of the police, manifestly furnishes substantial evidence upon which the State had the right to go to the jury. As to any conflict in the testimony of the witnesses, or discrepancies or inconsistencies in the statements made by any of the witnesses testifying for the State was a matter exclusively for the jury to pass upon.

We take it, in view of the unbroken line of decisions by this court, that where there is substantial evidence to support the verdict the appellate court will not undertake to retry the ease upon the mere disclosures of the testimony in the record, that it is unnecessary to cite authorities upon that question.

'The action of the court in declining to give the instruction at the close of the State’s case in the nature of a demurrer to the evidence was entirely proper.

II.

Learned counsel for appellant complains at the actions of the court in refusing to admit competent and material testimony offered by the defendant, as well as in not permitting a full and complete cross-examination of the prosecuting witness. We have examined in detail the disclosures of the record as to this complaint, and in our' opinion there was no such error committed by tbe trial court, applicable to tbe subject of this complaint, as would authorize and warrant the reversal of this judgment. Counsel for appellant inquired of the prosecuting witness as to certain questions propounded to her in the preliminary examination, and as to whether or not she did not make certain answers to such questions. So far as disclosed by this record the questions and answers in the preliminary examination sought to be injected into this ca.se, did not, as was very properly ruled by the court, tend to contradict the testimony of the witness as given in the present trial. Clearly the answers of the prosecuting witness as given in the preliminary trial were only competent for the purpose of contradicting her, or in other words to show that she had made statements differing from the ones made on the present trial, and if they had no such tendency they were clearly incompetent, and were properly excluded by the court.

Our attention is directed to the question propounded to the prosecuting witness as to whether or not she did not testify in the preliminary trial that the two men, Smith and Thomas, left the two ladies there on the corner. The testimony of the prosecuting witness in the trial of this case was that the two men. Smith and Thomas, left her and Miss Richards at the corner of Independence and Lydia avenue. The question as read from the transcript did not in any manner tend to contradict her statements in this case, but in corner of Independence and Lydia avenues. The question and answer as given in the transcript were as follows: “Q. How far did they go with you out there? A. They left us there on the corner.” We are unable to see any reversible error in excluding the question and answer as contained in the transcript for the reason, as given by the court, that it in no way tended to contradict the statements as made at the present trial.

The record further discloses that after the State and appellant had introduced all of the testimony in the cause and rested the case counsel for appellant then sought to offer some parts of what purported to be the transcript of the testimony of the prosecutrix taken at the preliminary hearing. He said to the court: “I offer these three pages of the transcript in evidence, the top of page twelve of the transcript.” It is sufficient to say upon this proposition that in the first place it does not appear that the three pages of the transcript of the evidence taken in the preliminary examination, offered in evidence at the stage of the trial as heretofore indicated, were ever called to the attention of the prosecuting witness. Obviously that was a good reason for the court to exclude it: but aside from all that the pages of the transcript of evidence taken in the preliminary examination, as offered by counsel for appellant, are not disclosed in the record now before us. If the prosecuting witness testified differently in the preliminary examination from what she did upon the trial of this cause then clearly it was the duty of counsel to first identify the transcript, call the witness’s attention to the statements therein made, and if she denied making them to offer the testimony as embraced in such transcript in evidence and properly preserve the evidence as contained in the transcript in the record of this cause for review by this court. The record before us, as before stated, does not contain the testimony embraced in the transcript as offered by counsel for appellant, therefore it is manifest that this court does not know what such transcript contained, and it is not before this court for review or for any other purpose. Appellate courts .do not indulge the presumption that the trial court committed error in the admission or rejection of testimony, but the record must disclose the testimony offered to the end that the appellate court may be in a position to determine the competency or incompetency ■of the testimony offered. In the absence from the record of the testimony embraced in the transcript as offered by counsel for the defendant, the presumption will be indulged that the court correctly ruled in excluding such evidence. It is fundamental that the burden rests upon appellant to convict the court of error in the trial and disposition of his case.

We have examined and fully considered the disclosures of the record as to other objections and exceptions to the action of the court in the admission and rejection of testimony and have reached the conclusion that there was no such error as would endanger the rights of the defendant to a fair and impartial trial.

III.

Learned counsel for appellant earnestly complains at the remarks of the assistant prosecuting attorney in his closing argument to the jury, and insists that such remarks constitute reversible error and that this cause should be reversed upon that ground. It is sufficient to say upon that complaint that we have read in detail and carefully considered the remarks attributed to the prosecuting officer in his closing address to the jury, and while, as we have had occasion to say in some other eases, it would perhaps be in keeping with the better rule to have left unsaid some of the statements complained of, yet in view of the testimony as developed upon the trial and the nature and character of this ease, we are unwilling to say that the remarks as made are sufficient to warrant this court in reversing this judgment. Some allowances must be made in a case where the charge is that of ravishing a female, where the testimony at least tends to show that the prosecuting witness was violently assaulted and her wearing apparel torn by the party charged with the commission of the offense, and we have upon this question reached the conclusion that the remarks complained of are not of that nature and character that so far transcends the hounds of appropriate and legitimate discussion as would warrant the reversal of this judgment.

We have indicated our views upon the leading and controlling questions presented by this cause, which results in the conclusion that there was no reversible error committed by the court in the trial of this case. The defendant was tried in the city where he resided, before a jury selected from that vicinage; the witnesses testifying in the cause were before the court and jury; they had opportunities of determining the credibility of such witnesses, as well as the weight to be attached to their testimony, which are not afforded the appellate court; the finding of the jury was approved by the trial court; the verdict as returned is supported by substantial evidence tending to show the guilt of the defendant; therefore, in harmony with an unbroken line of adjudications in this State we are unwilling to disturb the verdict as returned by the jury. The judgment of the trial court should be affirmed and it is so ordered.

All concur.