author: WALKER, P. J.

text:
    THE STATE v. FERD MORRIS, Appellant.
    Division Two,
    January 4, 1915.
    1. DEADLY WEAPON: Firearms. A pistol is included in the general term “firearms” found in the statute (Sec. 4496, R. S. 1909), and is per se by statutory designation a deadly weapon.
    2. -: -: Exhibition in Rude and Angry Manner. In a prosecution of a defendant for having exhibited a pistol in a rude, angry and threatening manner, it is immaterial whether the pistol was loaded or what defendant’s intentions were in having it in his possession; it is the unlawful use of the weapon, under the conditions named in the statute, that constitutes the offense.
    3. CONTINUANCE: Insanity of Defendant. It is not reversible error to refuse a continuance on an application alleging that a certain witness, if present, would testify as to defendant’s unsound mental condition prior to the offense and the causes thereof. His mental condition at the time of the commission of the offense is the material matter to be proved, and not the cause of his insanity or the time when he became insane.
    4. EVIDENCE: Exhibiting Pistol in Threatening, Manner: Statements of Prosecuting Witness. In a prosecution of a defendant for exhibiting a deadly weapon in a rude, angry and threatening manner, testimony that, when defendant, armed with a loaded pistol, sought out the prosecuting witness for the purpose of collecting a debt, said witness, in reply to a demand for the money, said “you are a young man and don’t need it; I am an old man and do need it,” if admitted, would have constituted no defense, and no error was committed in excluding it.
    5. -: -: Insanity: Opinion of Lay Witnesses. Opinions of lay witnesses as to defendant’s mental condition for three years prior to the commission of the offense and the evening thereafter, with no statement of facts upon which to base them, and no attempt to show any facts which of themselves indicate his mental condition, should be excluded.
    6. -: -: -: Cured by Testimony of Expert. Even if it were error to refuse to permit defendant’s mother to .testify concerning the effect upon defendant’s mental condition of a drug called “habitina,” any injustice done him thereby was cured by the testimony of a physician as to the effect on the human system of such drug.

      7. -: -: Intention to Bluff Victim. Testimony of defendant that he carried and brandished the pistol for the purpose of bluffing and intimidating the prosecuting witness, constitutes no defense. His covert intentions will not avail; the exhibition of a deadly weapon in a rude, angry and threatening manner is the offense.
    8. INSTRUCTION: Exhibiting Pistol in Threatening Manner: Defective Weapon. It is not error, on the trial of a defendant charged with having exhibited a pistol in a rude, angry and threatening manner, to refuse to instruct the jury that if the pistol pointed at the prosecuting witness was defective and would not shoot, defendant should be acquitted; nor should they be instructed that if the pistol could not be shot it was not a dangerous or deadly weapon. Proof that the pistol possessed the appearance and characteristics of a pistol authorizes the jury to classify it as a “firearm,” which is expressly declared in the statute to be a deadly weapon, and its display constitutes the offense.
    9. -: -: Insanity: Induced by Anger. An instruction telling the jury that “excitement, passion and angered feelings or revenge produced by motives of anger, hatred, disappointment or revenge is not insanity,” is not erroneous, either as telling them what does not constitute insanity, or as assuming the truth of an issuable fact.
    10. -: -: -: Induced by Use of Drug. An instruction telling the jury that “if you believe and find from the evidence that the defendant at the time of the act mentioned in evidence was laboring under a fit of temporary insanity, which was then and there the result of the immediate use of a drug called ‘habitina,’ then there is no mitigation or excuse for the act charged to have been committed in this case. But if the evidence shows that the defendant was insane as heretofore explained, the fact that it might have been caused by taking morphine will not make him criminally liable, and if you believe he was insane at the time the act was committed, as insanity is explained in the instructions, it would be your duty to acquit the defendant,” is not erroneous. Moreover, because of the paucity of the evidence on the question of defendant’s insanity in this case, it is doubtful whether any instruction on the subject was required, but the trial court, out of abundant caution, was justified in giving it.
    11. JURY: Voir Dire Examination. It will not be held that the prosecuting attorney made prejudicial remarks in the voir dire examination of the jury where such examination is not preserved in the bill of exceptions.
    12. VERDICT: Modified by Court. A verdict reading, “We the jury find the defendant Ferd Morris guilty of exhibiting a pistol as charged in the second count, and assess his punishment at two years in the penitentiary,” was sufficient to support a judgment; and) if the court modified it by inserting the words “in a rude, angry and threatening manner” after the word “pistol,” the modification was only one of form, and defendant was not prejudiced thereby.
    13. MOTION TO ELECT: At Close of Evidence. Where the information was in two counts, one charging a felonious assault, and the other with exhibiting a pistol in • a rude, angry and threatening manner, the charges in each count being based on the same facts, failure to require the State to elect upon which count it would stand, on motion made at the close of the evidence, is not prejudicial error, where the jury found defendant guilty under the second count only.
    Appeal from Pemiscot Circuit Court — Eon. Frank Kelly, Judge.
    Affirmed.

      Ward (& Collins for appellant.
    (1) The court erred in overruling defendant’s application for a reasonable postponement or continuance of this cause on account of the absent witness, Pete Meatte, and over the exceptions of the defendant at the time. Nichols v. Grocery Co., 66' Mo. App. 323; Barnum v. Adams, 31 Mo. 534; State v. Lewis, 9 Mo. App. 321; State v. Anderson, 96 Mo. 241; McLane v. Harris, 1 Mo. 700 ; State v. Warden, 96 Mo. 648; Green v. State, 110 S. W. 929; State v. Hesterly, 182 Mo. 32. (2) The court erred in admitting incompetent, irrelevant and immaterial testimony on behalf of the State, and in rejecting competent, relevant and material testimony offered by the appellant, (a) A lay witness is competent to give evidence as to the weakness of mind of an accused person. Even insanity can be established by such witnesses. State v. Clinger, 46 Mo. 224; Crow v. Peters, 63 Mo. 429; State v. Erb, 74 Mo. 199; Turner v. Railroad, 23 Mo. App. 13; State v. Williamson, 106 Mo. 162; Sharp v. Railroad, 114 Mo. 94; State v. Schaefer, 56 Mo. App. 496; Moore v. Moore, 67 Mo. 192; Appleby v. Brock, 76 Mo. 414; State v. Bryant, 93 Mo. 273; State v. Porter, 213 Mo. 43. (b) When insanity is invoked as a defense in a criminal prosecution great latitude should be allowed in the investigation of that subject. State v. Porter, 213 Mo. 64. (c) It was clearly competent for defendant to show why and for what purpose he had the pistol on the occasion of the trouble, and also to show for what reason, before procuring the pistol, he requested II.. Thompson to accompany him to the prosecuting witness. State v. Carter, 168 S. W. 679: The trial court committed error in not allowing defendant to show by divers witnesses his actions and conduct immediately after the alleged assault. It was competent as bearing on the defense of insanity. State v. Porter, 213 Mo. 43. (3) Instruction 8 is not authorized by the evidence; it tells the jury that the defendant did exhibit the pistol and did make the assault without leaving these facts to be found by the jury. There is no evidence in this case that the defendant’s feelings were angered or that he was seeking revenge or that his acts were prompted by motives of hatred, disappointment or revenge. Hence, there was no evidence on which to base this instruction; it only served to advise the jury that the doings and conduct of the defendant grew out of excitement, passion, angered feelings, hatred and revenge and that this was not insanity. In other words, this instruction is tantamount to telling the jury that there is no question of sanity in the case, but that all' of defendant’s conduct was produced by motives of anger, hatred, revenge, etc. There being no evidence on which to base this instruction, it should not have been given. McAtee v. Vanlandingham, 75 Mo. App. 45; Kiethley v. Southworth, 75 Mo. App. 442; Plummer v. Miland, 79 Mo. App. 439; Wasson v. McCook, 70 Mo. App. 393. (4) Instruction 9 given by the court is clearly erroneous. The undisputed evideuce shows that the defendant used this drug upon the advice of others in the hope of curing himself of the awful morphine habit. Therefore, his mental derangement by the use of this drug cannot be said to be voluntary on his part. State v. Porter, 213 Mo. 43; State v. Huttig, 21 Mo. 464. (5) The court erred in refusing instructions numbered 1 and 2 offered by the appellant. The pistol that the defendant had was used in the assault merely by presenting it. Now, was it a dangerous weapon1? 2 Words & Phrases, p. 1828; United States v. Small, 27 Fed. Gas. 1128. A loaded gun that cannot be discharged is no more dangerous than an unloaded gun. State v. Godfrey, 17 Ore. 300; State v. Lynch, 82 Me. 195. (6) The prosecuting attorney, in the very outset of this case, in qualifying the jury on its voir dire, stated to the jury that the defendant had previously been tried for other alleged crimes, which tended to prejudice the jury against the defendant at the very outset and was gross miscondut on his part, and the jury should have been then and there dismissed as per defendant’s request. Ensor v. Smith, 57 Mo. App. 584. (7) This case was closed by counsel for the State telling the jury that this was a “made-up and manufactured defense,” and telling the jury what the Supreme Court of this State had said, and by telling the jury that defendant’s defense of insanity was a confession of his guilt. This manner of trying an accused should not be tolerated in courts of justice in a civilized Nation. Such conduct was im proper and is reversible error. State v. Kyle, 168 S. W. 681; Beck v. Railroad, 129 Mo. App. 7; Nichols & Shepard Co. v. Metzger, 43 Mo. App. 607; Evans v. Trenton, 112 Mo. 390; Fathmann v. Tumulty, 34 Mo. App. 236; Haynes v. Trenton, 108 Mo. 123; McArthur v. Railroad, 123 Mo. App. 503. The .prosecuting attorney went far beyond the limits of proper argument in asserting to the jury that the plea of insanity was a plea of confession. “A defense of insanity is not a plea of confession.” State v. Porter, 213 Mo 43; Dean v. Chandler, 44 Mo. App. 338. (8) The court erred in modifying and changing the verdict of the jury by adding to it after the verdict had been returned the following words: “Exhibiting a pistol in a rude, angry and threatening manner.” It cannot be said that the verdict as returned by the jury was merely informal. The verdict as returned by the jury was substantially defective in omitting to find the material issue, and such finding should have been the separate and independent finding of each of the twelve jurors. Henly v. Arbucle, 13 Mo. 209; State v. Steptoe, 1 Mo. 19; State v. Boyd, 196 Mo. 61. (9) The court erred in not compelling and requiring the State to elect at the close of all the evidence on which count it would stand. State v. Carrigan, 210 Mo. 351; State v. Duvenick, 237 Mo. 185; State v. Jackson, 17 Mo. 544; State v. Richmond, 186 Mo. 80.

      Jolvn T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
    (1) The verdict as returned by the jury finds the defendant guilty of exhibiting a pistol in a rude, angry and threatening manner as charged in the second count and assessed the punishment at two years in the penitentiary. Verdict is specific and certain and sufficiently indicates the count of the information under which the defendant was found guilty. (2) The court did not commit error in overruling appellant’s application for continuance on account of the absence of witness, Pete Meatte. (3) It was immaterial where the appellant obtained the pistol that he is charged with having exhibited and it is immaterial whether or not the pistol could have been discharged, or whether or not the pistol was loaded. Sec. 4496, R. S. 1909, does not provide that it is unlawful to exhibit a loaded weapon, but provides that it is unlawful to exhibit firearms of any kind in a rnde, angry, threatening manner in the presence of one or more persons. (4) A lay witness, under the decisions of this court cannot state an opinion as to insanity without first having testified to the peculiar exclamations and actions upon which the opinion was based. In the application for continuance the appellant did not aver that the absent witness would testify to any such exclamations or actions. State v. Bell, 212 Mo. Ill; State v. Speyer, 194 Mo. 450; State v. Bronstine, 147 Mo. 520; State v. Williamson, 106 Mo. 162. (5) The bill of exceptions does not show that exception was saved to the action of the court for refusal to sustain the application for continuance. State v. Miles, 253 Mo. 436; State v. Prather, 136 Mo. 25. (6). The court did not commit error in admitting incompetent, irrelevant and immaterial testimony on the part of the State, and relevant and material testimony offered by the appellant. The original question as asked would call for the opinion of a lay witness concerning the mental condition and notwithstanding the cases cited by the appellant it is improper to call for the opinion of a lay witness upon the question of insanity under the rules of this court, unless said lay witness shall first testify to exclamations and actions on the part of such insane person upon which the opinion of the witness is founded. State v. Williamson, 106 Mo. 162; Sharp v. Railroad, 114 Mo. 92; State v. Speyer, 194 Mo. 468. (7) The court did not err in refusing instructions 1 and 2, offered by appellant. The pistol was a firearm and its condition was immaterial. State v. Larkin, 24 Mo. App. 410; State v. Sebastian, 81 Mo. 514. These cases sustained the proposition that an unloaded pistol is a deadly weapon. (8) Neither the record nor the bill of exceptions shows that there was any improper conduct on the part of the prosecuting attorney’s examination of the jury on the voir dire. The examination of the jury on voir dire does not appear and therefore is not before this court for review. In every instance where it is charged that the prosecuting attorney made prejudicial remarks before the jury no exceptions were saved by the appellant. State v. Cartrell, 174 Mo. 484; State v. McMullin, 170 Mo. 333; State v. Wright, 141 Mo. 333; State v. Hack, 118 Mo. 92; State v. Gibbs, 10 Mont. 213; Dunlap v. U. S., 165 Mo. 486; P'eople v. Benham, 160 N. Y. 402. (9) It is perfectly proper for the court to put in proper form a defective verdict with the consent of the jury. Kelley’s Criminal Law and Procedure (3 Ed.), sec. 410; Henly v. Arbucle, 13 Mo. 209; State v. Stepoe, 65 Mo. 640; State v. Ohumley, 67 Mo. 41; State v. McAfee, 214 Mo. 284; Kreibohm v. Yancey, 154 Mo. 67; Buttron v. Bridell, 228 Mo. 622; Hartman v. Railroad, 48 Mo. App. 619. (10) The court did not commit error in failing to require the State to elect, at the close of all the evidence, on which count it would stand. It has been frequently held in this court that the State would not have to elect as to which count was relied upon when there was more than one count in the information, even at the close of all the evidence, when the charges were based upon the same facts. State v. Duvenick, 237 Mo. 193; State v. Sharpless, 212 Mo. 203; State v. Carrigan, 210 Mo. 351; State v. Schmidt, 137 Mo. 266; State v. House, 109 Mo. 654; State v. Pratt, 98 Mo. 482.
   WALKER, P. J.

Appellant was charged in an information in two counts: the first, a felonious assault ; and, second, exhibiting a pistol in a rude, angry and threatening manner. Upon a trial he was convicted under the second count, which was drawn upon section 4496, Revised Statutes 1909, sentenced to two years’ imprisonment in the penitentiary, appealed to this court, gave the required bail bond, and was granted a supersedeas.

Appellant urges as grounds for reversal (1) the refusal of his application for continuance;- (2) errors in the exclusion of proper and admission of improper testimony; (3) refusal to give proper and the giving of erroneous instructions; (4) improper voir dire examination of jurors; (5) prejudicial remarks of the prosecuting attorney in his argument to the jury; (6) modification of the verdict; and (7) refusing to require the State to elect at the close of the testimony upon which count it would stand.

I. The trial court was authorized in overruling appellant’s motion for a continuance on account of the absence of the witness Meatte. The testimony it was alleged this witness would give was irrelevant and immaterial. A pistol is per se by statutory designation (Sec. 4496, supra) a deadly weapon, it being included in the general term “firearms,” and its exhibition in the manner charged constituted the offense defined by the statute. The offenses being kindred in their, nature, the construction placed on the statute prohibiting the carrying of concealed weapons is applicable to the offense of displaying them in a rude, angry and threatening manner. In prosecutions under the first offense named, the question as to whether or not a pistol was loaded and what defendant’s intentions were in having it in his possession are immaterial (Ridenour v. State, 65 Ind. 411; Gamblin v. State, 45 Miss. 658). The same rule is applicable to prosecutions under the second offense, or that under review; for, it is held to be no defense that the weapon brandished or unlawfully displayed was not in an efficient condition, for example, ■where a pistol was in such a state that it could not be discharged (Williams v. State, 61 Ga. 417).

To further illustrate the fact that it is the unlawful use of the weapon under the conditions named in the statute, which constitutes the offense, it is held in another jurisdiction that if the weapon is within-the class against which the prohibition is directed, although it may be shown that it is temporarily or permanently disabled, if it retains the appearance and characteristics of (for example) a pistol, it is none the less a firearm within the meaning of the- statute. [Atwood v. State, 53 Ala. 508.] In a later case which affirmed the Atwood ease, supra, the Supreme Court of Alabama sustained a charge for carrying concealed weapons, although it was shown that the pistol charged to have been carried had the handle and mainspring broken, and, that it could not be discharged in the ordinary way. [Redus v. State, 82 Ala. 53.] So in West Virginia it was held that although a revolver carried concealed on the person would not explode a cartridge, the offense was nevertheless held to be made out by proving the carrying and concealment. [State v. Tapit, 52 W. Va. 473.] And in Massachusetts, under a charge for unlawfully carrying firearms, a Springfield rifle which had been so altered that it would not discharge a missile with gunpowder or other explosive, was held to be a firearm within the prohibition of the statute sufficient to justify a finding of guilty. [Comm. v. Murphy, 166 Mass. 171.]

The application for a continuance also alleged that if present the witness would testify as to appellant’s unsound mental condition prior to the offense and the causes thereof.

The testimony as to appellant’s mental condition at the time of the commission of the offense did not depend for its relevancy or probative force on the causes which may have brought it about. Great latitude is.allowed in proving the mental condition of an accused when irresponsibility for the act charged is interposed as a defense. But appellant’s mental condition at the time of the commission of the offense was the material matter to be proved, and not the cause of his insanity or the time when he became insane (State v. Porter, 213 Mo. 43, 57; State v. Hays, 22 La. Ann. 39). The application for a continuance did not, therefore, disclose any relevant or material facts, the proof of which was denied appellant by the rulings of the court, and having suffered no prejudice he will not be heard to complain.

II. We have carefully reviewed the record to ascertain if prejudicial error was committed in the trial court’s rulings upon the admission and exclusion of testimony.

The appellant, armed with a loaded pistol, sought the presence of the prosecuting witness to collect a debt. That they engaged in a wordy wrangle he admits, and alleges error in the trial court’s refusal to permit him to prove that the prosecuting witness said in reply to a demand for the money claimed by appellant to be due him: “You” (appellant) “are a young man and don’t need it; I ain an old man and do need it.” This statement if admitted would have constituted no defense to the charge preferred against the appellant, and the contention in that regard is to our mind as spun gossamer.

It is also contended that error was committed in excluding testimony as to appellant’s mental condition for three years preceding the commission of the offense and the evening thereafter. This character of testimony, as has been clearly held by this court in State v. Porter, supra, is not admissible, the relevant fact being the mental condition of the appellant at the time the offense was charged to have been committed. [Louisiana v. Graviotte, 22 La. Ann. 587.] This phase of the testimony we have discussed in disposing of the motion for a continuance.

The appellant contends that the court committed error in not permitting his mother to testify concerning the effect upon appellant of a drug called “habitina.” As we have before stated generally in regard to testimony as to the mental condition of the appellant before the commission of the offense, the testimony offered was not material, and if material it called for a conclusion on the part of the witness. Conclusions on the part of lay witnesses as to what is necessary to constitute insanity are not proper when not supported by testimony as to the observations made by the witness leading up to the conclusions. [State v. Speyer, 194 Mo. 459; State v. Erb, 74 Mo. 199, 205.]

The witness, Dr. Troutman, who was an expert, was permitted later to testify generally as to the effect of the drug named, upon the human system; if, therefore, error had been committed in the exclusion of the testimony of lay witnesses on this subject, it was not only rectified but strengthened by the testimony of an expert and no substantial injustice was done to appellant. In all of this excluded testimony in regard to the appellant’s mental condition, none of the witnesses were asked to testify as to their knowledge of the general character and conduct of the appellant upon which to base the conclusions they were asked to render. This manner of introducing testimony in regard to this particular subject is improper, and only facts should have been introduced in evidence which would have a tendency to show the manner in which the mind of the appellant was affected. The inquiries made by counsel for the appellant simply called for the opinions of lay witnesses without any preliminary or explanatory testimony as to the facts within their knowledge which would support such conclusions. This was error. [Choice v. State, 31 Ga. 424.]

Appellant sought to prove, and did seek to testify, that he carried the pistol and brandished it when he met the prosecuting witness only for The purpose of “bluffing” or intimidating the latter. If this testimony had been admitted it would have constituted no defense to the crime charged, but would have simply been a self-serving declaration. By the appellant’s own admission, and all the facts and circumstances in the case, the conclusion follows that the appellant did intend to exhibit the pistol and did exhibit it in a threatening manner. His offense is determined by what he did and his covert intention will avail him nothing as a defense, and evidence in regard thereto was properly excluded.

Upon the whole we do not find any error either in the admission or exclusion of testimony to justify a reversal of this case.

Ill: Appellant contends that the trial court committed error in refusing to give instructions numbered one and two, offered by appellant. Instruetion number one authorized an acquittal if the jury found that the pistol pointed at the prosecuting witness by defendant was defective and would not shoot. We have discussed the inadmissibility of testimony sought to be introduced to prove the inefficiency of the pistol as a defense, and have held that it was properly excluded. It follows, therefore, that the refusal of an instruction based upon the same fact is’ not error. Instruction number two supplemented instruction number one and declared if the jury found that the pistol could not be shot it was not a dangerous and deadly weapon, and defendant should be acquitted.

It was not necessary to prove that the pistol was a dangerous and deadly weapon. Proof that it possessed the appearance and characteristics of a pistol, which defendant not only admitted it to be, but that it was loaded, authorized the jury to classify it as a “firearm,” which is expressly declared in the statute to be a deadly weapon; its display, therefore, as such within the meaning of the statute (Sec. 4496; supra) constituted the offense and it was not material whether it could be discharged or not. The instruction, therefore, was properly refused.

Appellant complains of the giving by the trial court of instruction number seven, in these words: £ £ The jury are further instructed that excitement, passion and angered feelings or revenge produced by motives of anger, hatred, disappointment or revenge is not insanity. And that the law holds the wrongdoer of an act under such conditions responsible for his acts, and the jury have no right to excuse or in anywise justify or mitigate defendant’s act in exhibiting the pistol or making the assault except you can do so under and according to law as declared in these instructions. ’ ’

Tbe instruction is not objectionable in that it assumes the truth of an issuable fact as contended by the appellant. If this were true it would render the instruction erroneous. [State v. Miller, 111 Mo. l. c. 551. J What the instruction does do is to tell the jury, when read in connection with the other instructions, wbat constitutes insanity as a defense to crime, or when limited to its own terms what does not constitute such insanity. This is not error, as numerous authorities attest. In Lynch v. Comm., 177 Pa. St. 205, the court thus declared the law: “But the jury must not confound anger or wrath with actual insanity, because however absurdly or unreasonably a man may act when exceedingly angry, either with or without cause, if his reason is not actually dethroned it is no legal excuse for the violation of the law.” In Guetig v. State (66 Ind. 94, 32 Am. Rep. 99), the court gave an instruction approved on appeal, that “Frenzy arising solely from the passions of anger and jealousy, no matter how furious, is not insanity. ’ ’ In Willis v. People, 32 N. Y. 715, the court instructed the jury that an irritable temper and an excitable disposition of mind did not constitute insanity. In Comm. v. Parkin (Penn.), 2 Pars. 439, 2 Clark, 208, the court declared that in passing upon the question of the insanity of the accused, they “must discriminate between anger, rage, malice, love of gain and the insanity produced by the visitation of Cod. If you believe that any of the former were the motives which influenced the conduct of the accused and prompted the deed, then he. is responsible and should be convicted.” Instruction number seven was in accord with the doctrine announced in the foregoing eases, and was not erroneously given.

Appellant contends that instruction numbered-eight does not correctly declare the law. It is as follows; “The court instructs the jury that if you believe and find from the evidence that the defendant at the time of the act mentioned in evidence was laboring-under a fit of temporary insanity which was then and there the result of the immediate use of a drug called ‘habitina,’ then in such case there is,no mitigation or excuse for the act charged to have been committed in this case. But if the evidence shows that the defendant was insane as heretofore explained, the fact that it might have been caused by taking morphine will not make him criminally liable, and if .you believe he was insane at the time the alleged act was committed, as insanity is explained in the instructions, it would be your duty to acquit the defendant. ’ ’

The rule announced in the above instruction was learnedly reviewed by Wagner, J., in State v. Hundley, 46 Mo. 414, with the result that an instruction similar in all of its material features was held to have been properly given. A like instruction was approved in State v. Miller, 93 Mo. l. c. 275. It might be urged that the instruction should not have been given in the instant case because of the paucity of testimony as to the appellant’s insanity. The testimony in this regard was confined almost wholly to vague statements of lay witnesses as to their conclusion in regard to appellant’s mental condition at periods prior to the commission of the offense, unsupported by any facts upon which the conclusions were based. The only witness offered as an expert was Dr. Troutman, who repeatedly stated that he did not know what the mental condition of the appellant was at the time of the commission of the offense. The entire evidence in this regard is to be gathered by implication from the testimony of the appellant. In view of his connected and lucid statement in regard to every phase of the offense his defense of insanity was of little weight. This, however, was a matter under the instructions of the court, for the determination of the jury, State v. Barker, 216 Mo. 532, and despite the lack of testimony, out of the abundance of caution the court fully instructed them in regard to same. Upon this theory of the case, most favorable to the appellant, the court gave the instruction, numbered 8, complained of, and, as it correctly declares the law, it is not error.

IV. The contention that the prosecuting attorney made prejudicial remarks in the voir dire examination of the jury cannot be considered, because such examination is not preserved in the bill of exceptions. It is attempted at the close of the bill to preserve a number of exceptions in reference to different alleged errors occurring during the trial and among others this appears: “Mr. Collins: I object to the prosecuting attorney stating in his closing argument that the plea of insanity is a plea of confession, because that’s not the law.” No exceptions are saved to this objection, and if it be held, which we do not, that the errors oc- ■ curring during the trial can thus be compiled thereafter and inserted seriatim at the close of the bill, regardless of the time of their occurrence or the circumstances surrounding them, this objection could not be considered because, as we have stated, it is not preserved.

V. 'Appellant contends that the verdict as returned was fatally defective in omitting therefrom the words “exhibiting a pistol in a rude, angry and threatening manner.” If the record sustained this contention, which it does not, and the error complained of had been properly preserved for our consideration, we' would be required to consider the correctness of the verdict in this form: “We the jury find the defendant Ferd Morris guilty of exhibiting a pistol as charged in the second count, and assess his punishment at two years in the penitentiary.” In State v. Chumley, 67 Mo. l. c. 45, where felonious assault was charged, the jury returned a verdict finding defendant “guilty on .the second count in the manner and form as therein set forth,” and assessed the punishment at a fine and imprisonment. At the suggestion of the prosecuting attorney the verdict was modified in form when returned into court, by the insertion of the words “with intent to kill” after the word “guilty” and before the word “on,” and this court held that the words inserted did not prejudice the accused under the rule that if a verdict be informal or improper the court may put it in proper form, in the presence of the jury, and if they assent to it, there will be no error. [Kreibohm v. Yancey, 154 Mo. 67.] In the case at bar it is contended that the words claimed to have been omitted were inserted by the court upon the jury returning the verdict, and was unauthorized. If the error complained of had been properly preserved, it is devoid of merit. The modification went simply to the form of the verdict, which was sufficient to support a judgment as rendered, and appellant was not thereby prejudiced.

YT. The trial court did not err in refusing to require the State to elect upon which count it would stand at the close of the evidence.'

The charges in each count were based on the same facts and the appellant was only convicted upon the second count. There is, therefore, no ground of complaint on account of the action of the court upon the first count. [State v. Sharpless, 212 Mo. l. c. 203; State v. Duvenick, 237 Mo. l. c. 193.] In the absence of prejudicial error this judgment should be affirmed, and it is so ordered.

Brown, J., concurs; Faris, J., not sitting.


source: Caselaw Access Project

license: Public Domain

text:
    THE STATE v. JULIUS WINER, Appellant.
    Division Two,
    January 4, 1915.
    1. RECEIVING STOLEN GOODS: Incorporation of Railroad Company. A conviction of the offense of receiving stolen goods cannot stand if there is no proof of the incorporation of the railroad company from which it is charged the goods were stolen.
    2. -: -: In Possession of Prosecuting Railroad. It is necessary to prove a larceny in order to sustain a charge of having received stolen goods; and if there is no proof that the goods alleged to have been stolen were in the possession of the railroad company from which they were charged to have been stolen, a conviction cannot stand.
    S. -: Failure of Proof: Remanding Cause. If the entire evidence indicates that defendant is guilty of having received stolen goods, the cause will be remanded for new trial, even though the verdict cannot stand because of failure of proof to establish some of the essential elements of the offense.
    Appeal from Scott Circuit Court. — Ho». Charles B. Faris, Judge.
    Reversed and remanded.

      Chester H. Krum, James At Finch and Oliver & Oliver for appellant.

      (1) The record makes a case of total want of proof as to corporate existence of the alleged bailee. The jury should have been instructed to acquit, as prayed by appellant. The information alleged that the goods bought and received by appellant were the property “of St. Louis Southwestern Railway Company, a corporation, as bailee.” There was no evidence either that the goods were stolen; that ‘! St. Louis Southwestern Railway Company” was a corporation, or that the goods were even in its possession, or that it had any interest in them as bailee or otherwise. The only evidence as to any interest or property in the goods was that of the State, which put the bailment, if there was one, in the Southern Illinois and Missouri Bridge Company. It goes almost without saying that as it is necessary to allege the ownership of the property in cases such as this is, the allegation as made must be proven. State v. Jones, 168 Mo. 402; Johnson v. State, 42 Tex. Cr. 440; Butler v. State, 35 Fla. 264. There was no evidence whatever that this company was a corporation, either de jure or de facto. The corporate existence might, of course, have been proven hy repute, but not even this degree of proof was afforded. Courts will not fake judicial notice of the existence of such a corporation as is alleged. The fact is essential both in allegation and proof. The fact must be proved as alleged. Here there was not a word on the subject. State v. Horned, 178 Mo. 61; O’Connell v. State, 55 Q-a. 296; Comm. v. Finn, 108 Mass. 466.

      John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
    (1) It must be admitted that the testimony in this case does not at any place show a proof that the St. Louis Southwestern Railway Company was a corporation. It was not proven by reputation or otherwise. If this court follows the dictum in State v. Jones, 168 Mo. 402, which applied to the proof of a case of burglary, then by similar line of reasoning the failure to prove the corporate existence of the St. Louis Southwestern Railway Company in the case at bar was error. It would seem from this dictum that in a case of burglary the ownership of the property must be alleged to be in a corporation and proved to be in a corporation, that is, if the case at bar were a case of burglary, it would be necessary to prove by repute or otherwise that the St. Louis Southwestern Railway Company was a corporation. The above dictum as to the proof of the ownership was cited and approved by the court in the recent case of State v. Henschel, 250 Mo. 269. The point as to the proof of the corporate existence of the owner of the property in a case of stolen property was specifically called to the attention of this court by the appellant in the case of State v. G-ennusa, 167 S. W. 439. The judgment in that case was reversed for the reason that the appellant was tried and convicted of receiving- stolen goods, and the evidence showed that the charge should have been, receiving embezzled goods. The charge was not sustained by the proof. State v. Fink, 186 Mo. 50; State v. Casey, 207 Mo. 1. It therefore would be necessary in a case of receiving stolen property to prove an ownership of the goods in order that a distinction might be made between these two crimes. We believe the contention of the appellant that the corporate existence of the Southwestern Railway Company should have been proven is correct. (2) There was a failure of proof as to bailment and identity of the goods. As it is necessary to prove a larceny in a case of receiving stolen property, the contention of the appellant, in this regard, is correct. The evidence in the case shows that the defendant had a guilty knowledge, which is one of the main essentials of the crime of “ receiving-stolen property,” and this cause should be remanded for a new trial and not reversed, in order that the proper testimony eonld he obtained, and this defendant proven guilty in a proper manner.
   WALKER, P. J.

The appellant was charged in an information filed by the prosecuting attorney of Scott county with having received stolen property in violation of section 4554, Revised Statutes 1909. Upon a trial before a jury he was convicted and his punishment assessed at two years’ imprisonment in the penitentiary. From this sentence he appealed to this court, and secured a stay of execution pending the determination of the case here, by giving a bail bond as required by the trial court.

The Attorney-General admits that there was no proof of the incorporation of the railroad from which the goods were' charged to have been stolen. This failure of proof is reversible error (State v. Henschel, 250 Mo. l. c. 269; State v. Jones, 168 Mo. l. c. 402) and it is not deemed necessary to incumber the record with a statement of the facts.

It is also admitted by the Attorney-General that there was no evidence that the goods alleged to have been received as stolen property by appellant were shown to have been in the possession of the railroad company from which they were charged' to have .been stolen. This is also reversible error, because it is necessary to prove a larceny to sustain a charge of having received stolen property. [State v. Creeley, 254 Mo. l. c. 391; State v. Smith, 37 Mo. 58; State v. Woodson, 175 Mo. App. l. c. 397.]

The errors noted necessitate a reversal, and while the absence of proof of the larceny of the goods is alone fatal to a conviction, we find upon a review of the entire testimony that it is indicative of guilt. Under this state of facts it becomes our duty (Sec. 5290, R. S. 1909; State v. O’Connor, 58 Mo. App. l. c. 459) to not only reverse but to remand this case that the absent evidence may, if possible, be supplied at another .trial. It is so ordered.

Brown, J., concurs; Paris, J.t not sitting.


author: WALKER, P. J.-

text:
    THE STATE v. J. F. SHOUT, Appellant.
    Division Two,
    January 4, 1915.
    1. INFORMATION: False Pretense. An information, set out in the opinion, charging the defendants with having obtained from the prosecuting witness certain personal property by means of false and fraudulent statements concerning the ownership, title and character of land, is held, to contain every essential necessary to properly charge the offense denounced by Sec. 4565, R. S. 1909.

      2. FALSE PRETENSE: Evidence: Deed. In the prosecution of a defendant for false representations as to his ownership of land, a deed, though not referred to in the information except in general terms, yet being the instrument through which the defendant, represented by his agent, effected the exchange of the land for the personal property of the grantee, is competent evidence, both as tending to establish the offense and to show a completed offense.
    3. -: -: Cross-Examination: Question .Calling for Conclusion. In a prosecution for obtaining property by false pretense it is not error to refuse to permit the prosecuting witness on cross-examination to answer the question: “Why did you part with your property?” the question calling for a conclusion and the defendant’s counsel stating no reason for it.
    4. -: -: Similar Transactions. In a prosecution for obtaining property by false pretense, evidence of similar transactions, whether prior or subsequent to the one under review, is admissible as tending to prove a common intent on the part of the defendants to cheat and defraud; and, therefore, it is competent for the State to show by the prosecuting witness that the defendants, after the exchange of his personal property for land which one of them claimed to own, asked him to be permitted to “straighten up” the deal and voluntarily stated they had made similar deals and had afterwards straightened them up.
    5. -: -: Abstract of Title. A county recorder of deeds who has made an examination of the records of deeds in his office pertaining to a certain tract of land and has testified that he is familiar with the entries in said records, is competent to state the result of his search, in a prosecution of a defendant for having hy false pretense obtained the personal property'of another by exchanging therefor a deed to land he did not own, and to testify that what purports to be an abstract of the title, which had been exhibited to such other, does notu show all the conveyances of the land.
    6. -: -: Reliance on Opinion of Abstracter. It is not competent to permit defendant, in a prosecution for false pretense in having exchanged land he did not own for the personal property of the prosecuting witness, to testify that he relied upon the opinion of an abstracter who was not a lawyer as to the title and to whom he submitted a pretended abstract for examination. Such reliance is no defense; besides, such opinion is self-serving, since his belief in the integrity of the title is based on a memorandum in regard thereto made at some indefinite time by some unknown person who defendant alone testified was an abstracter.
    7.. -: -: Statements by Coconspirator After Fraudulent Transaction: No Request to Restrict Testimony to Witness. Statements made by one conspirator concerning his connection with the crime, while not admissible after the consummation of the common enterprise against his co-conspirator, are admissible against him'; and where two were jointly indicted and tried together and no request was made that the examination be limited to the conspirator testifying either at the time of the examination or later by an instruction, the correctness of the admission of the testimony against the other cannot be reviewed upon appeal.
    8. -: Circumstantial Evidence. A conspiracy to cheat and defraud another out of his property by false representations may be established by circumstantial evidence. No direct testimony is necessary to show that appellant and his pretended agent knew that appellant did not own the land which he, pretending to own and exhibiting a spurious abstract of title showing on its face that he did own, conveyed to the prosecuting witness in exchange for his- personal property.
    9. INSTRUCTIONS: As a Whole: Objectionable Clauses. Instructions should be read together and construed as a whole. It is not fair to segregate a sentence here and a paragraph there, and lodge an objection that if such particular sentence or paragraph does not announce the entire applicable law, it is error.
    Appeal from Jackson Criminal Court. — Hon. Ralph 8. Latsham, Judge.

      Affirmed.

      Rufus A. Underwood and J. H. McVay for appellant.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
    (1) The information properly charges the offense of obtaining property by means of false pretenses and representations. State v. Roberts, 201 Mo. 710; State v. Lovan, 245 Mo. 524; State v. Martin, 226 Mo. 547; State v. Donaldson, 243 Mo. 465; State v. Foley, 247 Mo. 613. (2) The information charges only one offense; therefore, a verdict general in form is correct. State v. Richardson, 248 Mo. 575; State v. Martin, 230 Mo. 692; State v. Lovitt, 243 Mo. 522; State v. Bishop, 231 Mo. 415; State v. Taylor, 202 Mo. 1. (3) Admissions of a defendant are always admissible in evidence against him when freely and voluntarily made-State v. Wilkins, 221 Mo. 444; State v. Green, 220 Mo. 642; State v. Witherspoon, 231 Mo. 706; State v. Roberts, 201 Mo. 702; State v. Aitken, 240 Mo. 262. (4) Testimony by one who had examined the title records, that they did not show certain things, is competent. State v. Roberts, 201 Mo. 702; State v. Dines, 206 Mo. 649. (5) Unless the objection to the admission of evidence is specific, its admission cannot be urged as error on appeal. State v. 'Kanupka, 247 Mo. 714; State v. Wooley, 215 Mo. 620; State v. Wilson, 223 Mo. 170; State v. Wilson, 225 Mo. 516; State v. Witherspoon, 231 Mo. 720. (6) A statement made by one conspir-' ator concerning the connection of his co-conspirator with the crime, made after its consummation, is competent as to him, and if no objection is made as to its competency as to his co-conspirator, the two being tried jointly, and no request is made that it be limited to the conspirator making it, its admission cannot be’ reviewed on the appeal of the co-conspirator. State v. Aitken, 240 Mo. 262; State v. Copeman, 186 Mo. 108; State v. Grow, 235 Mo. 307; State v. Casto, 231 Mo. 408. (7) A conspiracy to commit a crime may be shown by facts and circumstances from which a conspiracy may be inferred. State v. Sykes, 191 Mo. 62; State v. Darling, 199 Mo. 168; State v. Roberts, 201 Mo. 702; State v. Casto, 231 Mo. 398; State v. Fields, 234 Mo. 615. (8) One proper instruction on the presumption of innocence and one instruction requiring the jury to find the defendant guilty beyond a reasonable doubt is sufficient. State v. Baker, 136 Mo. 80; State v. Fan-non, 158 Mo. 156; State v. Glow, 235 Mo. 328. (9) It is only when the State relies upon circumstantial evidence alone that an instruction on circumstantial evidence should be given. State v. Dannelly, 130 Mo. 649; State v. Crane, 209 Mo. 316; State v. Bobbitt, 215 Mo. 10; State v. Hubbard, 223 Mo. 80. (10) Certified copies of instruments of record in Dent county affecting the title to the land in evidence were properly admitted in evidence. Sec. 6310, R. S. 1909; Frank v. Renter, 116 Mo. 517; Baum v. Sauer, 117 Mo. 460.
   WALKER, P. J.-

-The appellant and one W. J. Yoss were charged in an information filed in the criminal court of Jackson county with obtaining from one Gf. F. Yogel certain personal property by means of false statements and fraudulent pretenses and representations under section 4565, Revised Statutes 1909. Upon a joint trial both defendants were convicted and each sentenced to two years’ imprisonment in the penitentiary. The appellant, after an unsuccessful attempt to secure a new trial, appealed to this court, gave a bail bond which was approved, and a supersedeas was granted pending the review of the case here.

Yogel, the prosecuting witness, a machinist, lived in Kansas City, Missouri, and owned an automobile, a motorcycle and the furnishings for a shooting gallery. He was desirous of disposing of this property. In a real estate dealer’s office in Kansas City he met Voss, one of the defendants. The latter invited Vogel to come to his (Voss’s) office in another building, and upon his doing so some trades were proposed which were not consummated. A week later Voss came to Vogel’s home and proposed to trade the latter eighty acres of land in Dent county, Missouri, for the personal property before mentioned. Voss said he lived in Dent county, knew the land and that it was good; that it was owned by a wealthy old German who had a good title to it. That night Voss returned to Vogel’s home bringing with him what purported to be an abstract of title to the land made by one J. W. Walras-" ley for the Dent County Abstract Company, and delivered it to Vogel, saying it was genuine and showed a true chain of title from the United States to J. F. Shout, the appellant, who it Was stated was then the owner. Vogel consented to the trade, and the next night Voss delivered a deed to him for eighty acres of land therein described as located in Dent county, the grantors being J. F. Shout, the appellant, and his wife. A month later Vogel discovered that the Dent County Abstract Company and J. W. Walmsley were myths and that no such company or individual ever had been or were in Dent county, and that the abstract did not give a correct chain of title to the land in question and was otherwise not genuine, and that appellant had no title to the land. Vogel complained to the appellant, who insisted that he had the title to the land, but that there were taxes on the land which had not been paid. In a subsequent interview with appellant and the defendant Voss, upon being charged with defrauding Vogel, they requested authority to sell the land, saying that they had straightened up other like deals in this manner and they would straighten up this one. The deal was, as stated, made by Voss with Vogel who did not meet the appellant until after he discovered that the transaction was fraudulent. The ludicrous irony of the transaction is disclosed when it is shown that Voss, who was the promoter of the fraud, was paid twenty-five dollars by Vogel for effecting the trade.

There was no foundation in fact for the statements made by Voss to influence the actions of Vogel. The land described in the deed from the appellant to Vogel, at the time of the trade, was owned and in the possession on one Gr. S. Clark, who, supplementing the documentary evidence as to his title, stated that he owned the land and had been in actual possession of it continuously since 1907, and that he had not sold or transferred same. Clark’s testimony was corroborated by that of the recorder of Dent county and the owner of the abstracts of titles at Salem, the county seat.

Appellant testified that he never met Vogel or Voss until after the trade in question was made. That he got the land from an old man by the name of Allendorph living in Kansas City, and identified an abstract of title which he stated he had received from Allendorph at that time.

That he placed the land and abstract in the hands of a Mr. Cadien for sale. That the latter had died in August before the trial. That he had never seen the land in question. That he told his agent to have the abstract brought down to date and then deliver it to the “other agent.” That he executed the deed, leaving the grantee’s name blank, and delivered it to his agent Cadien and did not see'the personal property he had traded for until his agent had procured a bill of sale of it.

On cross-examination he said that he got three copies of the abstract from Allendorph. That the abstracts he had were certified, one by J. W. Walmsley and the other by J. W. Steel, and both for the same land and both alike except as to the names of the parties signing the certificates. He - did not know Steel or Walmsley and had never tried to find ont anything about them. That he valued the land at $800, and traded it for the automobile, motorcycle and shooting gallery, which articles he afterwards traded off, getting ten acres of land in Florida that he had never seen.

William J. Voss, co-defendant, testified that the first time he ever saw the prosecuting witness was in a Mr. Clay’s office in the Century Building*, Kansas City, lie did not speak to him on that occasion, and about one and one-half hours later Vogel came into his office in the Ridge building and listed the automobiles, etc., with him- for trade and a few days later he met Mr. Cadien and mentioned to him that he had these articles for trade and Mr. Cadien submitted the land in question to him for exchange for the automobile. A few days later he saw Vogel and submitted the proposition of trading for this land to him. Vogel authorized him to trade for the land if it was clear. Ten days later he received an abstract of title to the land from Cadien and handed it to Vogel, telling him to have it examined by an attorney; that he did not know anything about the title and that it was up to him to find out what he had. He denied all statements testified to hy Vogel as to the value of the land, his acquaintance with it and all knowledge of the supposed owner. Two days after receiving the abstract Vogel came to his office and they together went to Mr. Cadien’s office and Vogel made out a bill of sale covering the automobile, etc. That he had met Shout, the appellant, for the first time the day before, when he took him to look at the automobile and other property. That he did not have any interest in the land or other property involved in the trade; that he made no statements about the value of the land, the abstract, the title, the deed, or the owner, because he knew nothing about them.

I. It is contended that the information is defective. It avers in substance that the defendants' contriving, designing and intending to cheat and defraud' G. P. Vogel of his money, g’oods, chattels , ° , , L, . , . . and personal property, did induce him to sell to the defendants (naming them) certain personal property then owned by him (describing it) for certain real estate located in Dent county, Missouri (described by Government subdivisions); to induce said Vogel to make such trade and exchange as aforesaid and to effect their scheme and design to cheat and defraud, the said defendants (naming them) and each of them did then and there unlawfully, feloniously and designedly and with felonious intent to cheat and defraud him, the said Vogel, of his money, etc., represent, pretend and say to said Vogel that the said J. P. Shout was then and there the owner of the real estate aforesaid, and then and there had good right and title to same, and then and there had good right to sell, transfer and convey said real estate and could pass good title to him, the said Vogel; and to further induce the said Vogel to sell and exchange his said property and effect their scheme and design to cheat and defraud him, they, the said defendants naming them) and each of them, with felonious intent to cheat and defraud the said Vogel, falsely represented, pretended and said to said Vogel that a certain abstract, which they then and there exhibited to said Vogel, purporting to be made by the said Dent County Abstract Company, which said abstract was then and there delivered to said Vogel, .was then and there a correct statement of all of the conveyances of said land from the United States patent to same to the date of September-, 1911. There is then inserted in the information a copy of the abstract above referred to, which is followed by an allegation that the defendants unlawfully and designedly with felonious intent to cheat and defraud the said Vogel did represent, pretend and say to him that the said abstract was then and there a trne and genuine abstract of title, and correctly set out the conveyances of real estate from the United States patent to the --- day of September, 1911, to the land above described, and that said Vogel believing said false and fraudulent statements by said defendants (naming them) and each of them to be true, and relying thereon, and being deceived thereby, was induced by reason thereof to sell, deliver and exchange, and did then and there sell, deliver and exchange to them, the said defendants, all of his right, title and interest in the above described personal property in exchange for the real estate hereinbefore described. And that said defendants (naming them) and each of them, by means of the said false, fraudulent and felonious statements, pretenses and representations did obtain of and from him, said Vogel, the property above described and set out, of the value of $350, the goods, chattels and the personal property of him, the said Vogel. That in truth and fact the said J. F. Shout was not then and there the owner of the Dent county land above described, or any part thereof, and did not then and there have a good right and title to same, and did not then and there have any right to sell, transfer and exchange said land, and in truth and in fact the abstract herein-before set out which they the said defendants (naming them) then and there exhibited and delivered to said Vogel was not then and there a true and general title from the United States patent to date, but was a false, forged and fictitious abstract, all of which they the said defendants (naming- them) then and there well and truly knew, etc.

The foregoing information contains all the essentials necessary to properly charge the offense of obtaining goods by false pretenses under the statute (Sec. 4565, R. S. 1909; State v. Foley, 247 Mo. l. c. 628; State v. Donaldson, 243 Mo. 460; State v. Roberts, 201 Mo. 703), and it is not, therefore, subject to valid objection.

II. The appellant contends that the court committed divers errors in the admission and exclusion of testimony: First, in overruling his objection to admitting the deed from Shout to Yogel, on the ground that there was no specific reference in the information to this deed. The deed in question, while not expressly referred to except in general terms in the information, was the instrument through which the appellant, represented by his agent Yoss, effected the exchange by which he secured possession of the property of the prosecuting witness. It tended, therefore, to establish the offense with which the appellant was charged, and as land can only be transferred or aliened by deed, it was not error to admit the instrument in evidence to show a completed transaction. [State v. Lovan, 245 Mo. l. c. 536.]

The next contention is in regard to the refusal of the trial court to permit the following question to be answered by the prosecuting witness: “Why did you part with your property?” This at best but called for a conclusion, if answered by the witness. However, the objection thereto was general, the counsel for appellant stating no reason therefor, and the error if any in refusing to permit it to be answered is not preserved sufficiently to entitle it to be considered. [State v. Kanupka, 247 Mo. l. c. 714.]

Appellant also complains of the action of the trial court in overruling his objection to this question propounded to Yogel, the prosecuting witness: “What if anything did they tell you about making transactions of this kind — similar transactions?” The prosecuting witness in response to this question testified that appellant and defendant Voss had asked him to be permitted to “straighten up” the deal, that they had made similar deals and had afterwards straightened them up. This statement was an admission on the part of the appellant and Voss of having been engaged in similar transactions to the one .with which' they were charged in this proceeding, and there being no evidence that the statement was not freely and voluntarily made, the court did not err in its admission, the rule being that evidence of similar transactions whether prior to the one under review or after-wards is admissible as tending to prove a common intent on the part of the defendants to cheat and defraud. [State v. Roberts, 201 Mo. l. c. 726; State v. Wilkins, 221 Mo. 444.] Viewed from another vantage the admission made by the parties was clearly admissible — both were present and whether the proposition to “right matters” was made by appellant or Voss, the other did not deny it, but acquiesced therein.

It is also contended error was committed in overruling appellant’s objection to a question asked the recorder of deeds of Dent county by the prosecuting attorney, as follows: “Mr. Smalley: I hand you what purports to be an abstract of title marked ‘Exhibit A,’ and will get you to tell these gentlemen whether or not that abstract shows all the conveyances of that property from the Government grant to the month of September, 1911, as shown by the records of your office in Dent county, Missouri?” The witness, as the recorder of deeds of Dent county, had in his official possession at Salem, the county seat, the records of the transfers of real estate in that county. He had previously testified that he had examined these records to ascertain in whom the title was vested to the land alleged to have been exchanged by defendants for the personal property described in the information; that he was familiar with the record entries in regard to this land; that the so-called abstract, about which he was questioned and which had in the exchange been submitted by defendants to tbe prosecuting witness as presenting a true chain of title to the land, did not do so; that tbe records containing tbe true entries of tbe transfers of tbis land were contained in twelve or thirteen large volumes in bis, tbe recorder’s, office at Salem in Dent county, and that be was not permitted to remove same therefrom. Tbis testimony was given after it bad been shown by documentary testimony in whom title to tbe land was vested, which was other- than appellant. Subsequently upon being recalled tbe witness was asked tbe question of which appellant complains. It was in effect asking tbe witness to state what he bad or bad not found in tbe records in regard to tbe land. Having made an examination of same and testified as to bis familiarity with tbe entries it was competent for him to state tbe result of bis search. Tbis court has said under a like state of facts that proof thus elicited is as complete as if tbe records were present to be inspected. Only in two ways could tbis proof have been made; one by actual inspection, and the other by tbe sworn testimony of the legal custodian or someone familiar with their contents who had carefully examined them with a view to establish tbe fact. [Blodgett v. Schaffer, 94 Mo. l. c. 670; Durham v. Heaton, 28 Ill. l. c. 272.]

Appellant also complains of tbe court’s refusal to permit him on direct examination to answer tbis question: “Was it on bis opinion, after he bad examined it, that you relied as to tbe title?” To understand tbe setting of tbis question a knowledge of tbe examination of appellant by bis counsel leading up to it is necessary. It is as follows:

“Q. Did you know anything about the title to tbe land? A. Well, I bad a party examine tbe title when I got it.
“The Court: Who was that? A. Mr. McKinley.
“Q. A lawyer? A. An abstracter.
“Q. Live here in the city? A. Tes, sir.
“Q. The abstract you have under your arm, is that the one he examined? A. Tes, sir.”

The answer to the question, if it had been permitted and had been in the affirmative, would have constituted no defense. Put most strongly for appellant it meant that having had McKinley examine the title to the land appellant’s opinion in regard to same was based on this examination. The result of this examination is not disclosed, nor is it shown what the appellant’s opinion was as based thereon. The answer to the question was, therefore, excluded if for no other reason than that the question was vague and indefinite and no proper foundation had been laid to authorize same. The ruling of the trial court was proper, however, for a more substantial reason; it was sought by appellant’s testimony to establish his belief in the integrity of his title to the land by showing that he relied upon a memorandum made in regard thereto at sometime, somewhere, by McKinley, who is significantly absent at the time of the trial. Even the tyro knows that this character of testimony will not avail as a defense in this character of-proceeding; in addition, the answer, if made, would have fallen fairly within the designation of a self-serving declaration.

It is also contended that the admission of statements by one of the defendants after the consummation of the common enterprise, or, concretely, after the effecting of the exchange by which the property was ■obtained from the prosecuting witness, constituted reversible error.

Statements made by one conspirator concerning his connection with the crime, while not admissible after the consummation of the common enterprise against his co-conspirator, is admissible against him; and where two are jointly indicted and are being tried together and no request is made that the examination be limited to the conspirator testifying, the correctness of the admission of the testimony against the other cannot be reviewed upon appeal where, as in the case at bar, no objection was made or instruction ashed limiting the testimony to the conspirator testifying. [State v. Aitken, 240 Mo. l. c. 262.]

From all the facts in this case, it is evident that the defendants were acting in concert with a common purpose and intent in the commission of this offense, namely, to secure the property of the prosecuting witness by exchanging therefor the real estate which purported from the deed and the abstracts submitted to the prosecuting witness, to belong to the appellant. Voss, it is true, was the prime mover in the fraud, but his purpose could not have been consummated without his delivery of the deed made by the appellant to the prosecuting witness, and it was necessary that concert of action exist before this could have been brought about. Under this state of facts the testimony of the appellant, or, in fact, of the other defendant, for the purpose of showing a conspiracy was not improper, the rule being that where two persons act in concert in the commission of a crime with a common purpose and intent, statements or declarations of one are admissible against the other. [State v. Copeman, 186 Mo. 109.]

It is further contended that there was no direct evidence against appellant to sustain a verdict of guilty. A conspiracy like any other crime may be shown by circumstantial evidence. [State v. Fields, 234 Mo. l. c. 623.] The facts and circumstances are ample that appellant and the defendant Voss were acting in concert to accomplish the criminal purpose of obtaining the prosecuting witness’s property by means of the false and fraudulent pretense that the appellant was the owner of the land described in the deed made by appellant and his wife and delivered to the prosecuting witness in exchange for his property through the instrumentality of Voss. No direct evidence is necessary to render it apparent that Yoss and appellant knew, or by the exercise of the slightest effort conld have known, that the latter had no title to the land. Men of the most limited experience do not accept deeds to land for which they pay a consideration, without making at least some inquiry as to the title and value of same, if it be no more than to communicate with the recorder of deeds of the county where the land is located, who conld and doubtless would, for such is the custom with this class of officials, have promptly informed the appellant that his deed passed no title and that the paper purporting to be an abstract of the title was not only fraudulent, but that the company by whom it was pretended to have been made, and the abstracter who certified to same, were as “baseless as the fabric of a vision.” The celerity with which defendant consummated the trade without examination of the title or material value of the land is a strong circumstance to show that they were indifférent as to the land except as it afforded a means of procuring some tangible property therefor, although the property may have possessed, as they claim, no great value. The vague and indefinite manner in which they testify in regard to the transaction and the atmosphere of the proceeding throughout savor so strongly of fraud that direct testimony, if it could have been procured, was nod necessary to sustain a conviction. The jury so found, and, being the sole judges of the weight and effect of the facts presented, their verdict will not be disturbed, although the evidence be largely circumstantial. [State v. Cannon, 232 Mo. 205; State v. Fields, 234 Mo. 615.] Not only is it true, as a general proposition, that the jury are the judges of the sufficiency of the evidence, but, the court having determined in this case that there was evidence' of a conspiracy,’ it remained for the jury to say if one existed and its object. This they did. [State v. Walker, 98 Mo. 95; State v. Roberts, 201 Mo. l. c. 728.]

III. Taken as a whole, the instructions covered every phase of the case presented by the testimony. Instead of construing the instructions tog’ether to make, if possible, a harmonious whole, counsel for appellant segregate a sentence here or a paragraph there, and lodge objections thereto on the theory that if such particular sentence or paragraph does not present the entire law applicable, it is error. This manner of assailing the correctness of instructions is trivial, and finding them, as stated, to fairly and fully present the law according to approved precedents, the objections made are without merit.

No errors having occurred herein warranting a reversal, the judgment of the trial court is affirmed, and it is so ordered.

Brown and Baris, JJ., concur.


author: BROWN, J. BROWN, J.

text:
    In re JOSEPH SIEGEL, Petitioner.
    In Banc,
    January 22, 1915.

    1. PLEA OF GUILTY: To Non-prohiblted Offense. If the acts of which a defendant Is convicted are not denounced as a crime by any law in force, punishment is unlawful, notwithstanding his plea of guilty to the information preferred against him.
    2. LAW: Municipal Ordinance: Election Authorized by Law. A city ordinance directing an election to be held to authorize the adoption or rejection of a street railway franchise is a law within the meaning of the statute which makes illegal voting a felony, and says that “the word ‘election’ . . . shall be construed to designate elections had within any city, for the purpose of enabling electors ... to pass . . . any proposition submitted to vote by law.”
    3. JUDGMENT: In Criminal Case: Describing Crime With Precision: Illegal Voting. It is unnecessary for a judgment to designate the particular acts by which the crime was consummated with the same precision required in an indictment. Where defendant was charged and convicted with voting more than once at the same election, a crime denounced by the statute as a felony, a judgment which described the offense as “illegal voting” is sufficiently clear.
    4. -: -: As Charged. A judgment can be tested by the information upon which it is based, and if it charges only one offense a judgment reciting that defendant pleaded guilty “as charged” is not so vague as to render it invalid.
    5. -: -: -: Equivalent to General Verdict of Guilty. A recital in the judgment that defendant pleaded guilty “as charged” is equivalent to a general verdict of guilty returned by a jury when only one offense is charged and when under the law the defendant cannot be convicted of a lower degree of the offense than the one charged.
    6. INSUFFICIENT INFORMATION: Omission of Word Feloniously: Discharge on Habeas Corpus. A convicted petitioner cannot be discharged upon a writ of habeas corpus on the ground that the information is not legally sufficient to support an information. That writ cannot be made to take the place of an appeal. If the information fails to charge that he “feloniously” committed the unlawful acts specified, and for that reason is not legally sufficient to support a conviction of a felony, his remedy is by a motion in arrest of judgment and appeal or writ of error, for then, the most he is entitled to is ■ to have the judgment reversed and the cause remanded — not to an absolute discharge.
    7. LIGHTER SENTENCE POSSIBLE: Habeas Corpus. The fact that under the statute the court might have imposed a lighter sentence, is no ground for relief by habeas corpus. [On rehearing.]
    8. CONVICTION: Under Invalid Special Statute: Valid General Statute. Even though it be conceded that a certain statute denouncing illegal voting is invalid because special, yet if the record does not indicate that the information was drawn under that statute, and there is another valid general statute applicable to the offense and the information is good under that and the sentence in conformity with it, defendant will not be discharged on habeas corpus. [On rehearing.]

      Habeas Corpus.

    Petitioner remanded.

      Numa F. Heitman for petitioner.
    (1) The criminal court exceeded-its jurisdiction because your petitioner was not charged with any felony nor did he plead guilty to any felony and yet he was sentenced to two years in the penitentiary. The word “feloniously” nowhere appears in the information. Illegal voting in Kansas City is expressly made a felony by statute. Sec. 6155, R. S. 1909; State v. Feasal, 332 Mo. 181; State v. Deffenbacker, 51 Mo. 26; Johnson v. State, 7 Mo. 183; State v. Band, 191 Mo. 1. c. 566-7; State v. Willard, 219 Mo. 725; State v. Murdock, 9 Mo. 739; State v. Clayton, 100 Mo. 516; State v. Dixon, 247 Mo. 668; State v. Gilbert, 24 Mo. 380; State v. McGrath, 228 Mo. 413; State v. Bnckfelder, 231 Mo. 55; In re Spalding, 75 Kan. 163; Ex parte Smith, 135 Mo. 223; State v. Rosenblatt, 185 Mo. 33.4; Secs. 2474, 4923, 4925, R. S. 1909. From the foregoing statutes and authorities, it is clear that, in view of the information which did not charge a felony, it was an excess of jurisdiction to sentence the petitioner as though he had pleaded guilty to a felony. The writ of habeas corpus is the remedy. Ex parte Snyder, 64 Mo. 58; Ex parte Bedard, 106 Mo. 616; In re Shull, 221 Mo. 623; Ex parte Creasy, 243 Mo. 679; In re Clark, 208 Mo. 321; Ex parte Neilson, 131 U. S. 176; In re Snow, 120 U. S. 274; Ex parte Neet, 157 Mo. 527; Ex parte Lucas, 160 Mo. 218; Ex parte Harrison, 212 Mo. 95; In re Spalding, 75 Kan. 163. (2) There was no criminal law violated by the petitioner for the reason that no criminal statute was in existence which covered or included the so-called franchise election held in Kansas City, on July 7,1914. The word “election” as used in the Constitution and election laws of Missouri is not broad enough to cover said franchise election. This question was discussed in State ex rel. v. Taylor, 220 Mo. 618. Subsequently, the Legislature undertook to expand the meaning of the word “election,” and to accomplish this purpose, Sec. 6177, R. S. 1909, was passed. Haas v. Neosha, 139 Mo. App. 297. The franchise election which was held in Kansas City in pursuance of an ordinance of Kansas City, on July 7,1914, was not an “amendment” within the meaning of the word “amendments” used in said section, nor was said franchise ordinance a “law” within the meaning of the word “law” used in said section. A law is a rule of conduct, prescribed by the supreme lawmaking power in the State, and applying generally to all the people within the State. An ordinance is a very different thing. It is a rule of conduct prescribed by a delegated lawmaking power in the city and applies only to the inhabitants in the city. This franchise was not submitted to the people “by law,” for the reason that the ordinance submitting it was not a “law” but an ordinance. A proposition submitted to the people of the city by ordinance does not come within the definition of the word “election” as the same is defined in section 6177. Kansas City v. Clark, 68 Mo. 588. Criminal statutes should be strictly construed and not be extended or' enlarged by judicial construction so as to embrace offenses or persons not plainly within their terms. State v. Reid, 125 . Mo. 43; State v. Brock, 202 Mo. 223; State v. Shortell, 174 Mo. App. 153; State v. McMahon, 234 Mo. 611. Said franchise was not a “public” act. It was only a quasi-public act. It was a contract between the city on one side, and a private corporation on the other. It was only a half way “public” act. The phrase “or other public act or proposition” means a “public act” or “proposition” belonging to the class of “amendments” or “laws” under the rule ejusdem generis. State v. Krueger, 134 Mo. 262; Ex parte Neet, 157 Mo. 527; State v. Robinson, '253 Mo. 27; Ex parte Lncas, 160 Mo. 218; Ex parte Harrison, 212 Mo. 88; Ex parte Smith, 135 Mo. 223.

      NOTB: Decided December 19, 1914. Motion for rehearing filed; motion overruled, and opinion filed December 29, 1914. Motion to modify opinion filed; overruled January 22, 1915.

   BROWN, J.

Upon his plea of guilty to a charge of illegal voting, petitioner was sentenced to serve a term of two years in the penitentiary by the criminal court of Jackson county, Missouri, and he brings habeas corpus in this court to secure his discharge.

The complaint of petitioner is accompanied by a copy of the information under which he was convicted upon a plea of guilty, a copy of the judgment and sentence, together with a copy of an ordinance of Kansas City which purports to authorize the holding of an election on July 7, 1914, in said city to determine, by vote, whether or not said city would grant a franchise to certain corporations to maintain and operate certain street car lines upon its streets.

Petitioner asserts that there is no law which denounces as a crime his act in voting more than once in the beforementioned municipal election, and that therefore, he is entitled to his discharge. We will consider this insistence first, for if it be true that the acts of which petitioner was convicted are not denounced as a crime by any law in force in this State, then his confinement is unlawful, notwithstanding his plea of guilty to the information preferred against him.

Petitioner concedes that by section 6155, Revised Statutes 1909 (which is a part of article 14, chapter 43, of the Revised Statutes of 1909, governing the holding of elections in Kansas City, Missouri), he was expressly prohibited from voting more than once at any election held in said city pursuant to law. However, he earnestly insists that the election held on July 7, 1914, to adopt or reject a street car franchise was not an election held by law, being merely an election held pursuant to a city ordinance, and, therefore, not within the purview of that part of section 6177 which reads as follows:

“The word ‘election,’ as used in this article, shall be construed to designate elections had within any city for the purpose of enabling electors to choose some public officer or officers under the laws of this State or the United States, or to pass any amendment, law or other public act or proposition submitted to vote by lato.” (Italics ours).

Petitioner stresses the last two words quoted from section 6177, and insists that a proposition submitted to voters by a city ordinance is not a submission of such proposition by law, for the reason that city ordinances are not laws; so that a proper ruling on this issue depends, in a large measure, upon a correct interpretation of the words ‘‘by law,” as found in section 6177, supra.

OPINION.

To sustain the last-noted contention petitioner cites Kansas City v. Clark, 68 Mo. 588, wherein Chief Justice Sherwood, in discussing the right of a city to appeal from a judgment of acquittal in an action to recover a fine for violating its ordinances, stated that the violation of a city ordinance was not a crime, because the ordinance was not a public law, but only a local law.

Petitioner also cites the case of Baldwin v. City of Philadelphia, 99 Pa. St. 164, in which it was held that a provision in the constitution of Pennsylvania which ordained that “no law shall increase the salary of any public officer after his election or appointment” did not apply to the increase of salary of an officer by city ordinance.

Notwithstanding the authorities cited we think petitioner’s contention is unsound. The Clark case, supra, was not, in a strict sense, an interpretation of the word law, but what was there said was in the nature of obiter, or the reasoning of the judge, and intended merely to illustrate the reason why a city was entitled to appeal from a judgment of acquittal in a suit to enforce its ordinances. As'will he seén, that opinion does not hold that an ordinance is not a law, but only that it is a “local law” as distinguished from a “public law.” That view did not meet the approval of all of the judges of this court.

In the subsequent case of Grand Ave. Ry. Co. v. Citizens’ Ry. Co., 148 Mo. 665, l. c. 671, it was held that a power to hear and determine a certain class of causes conferred upon circuit courts by a valid city ordinance was a jurisdiction conferred upon such courts by law. This last-cited case met the unanimous approval of this court in Banc, except Valliant, J., who did not sit. If that ruling was sound, it would necessarily follow that an election held under a city ordinance is an election held “by law.”

McQuillin, in his treatise on Municipal Corporations (Vol. 2, sec. 643), says: “Valid ordinances of municipal corporations are as binding on the corpora-tors and the inhabitants of the place as the general laws of the State upon the citizens at large.” Can it be a misnomer to classify as a law that which was enacted by a legislative body and possesses all the force of law?

Section 10, article 1, of the Federal Constitution provides that “no State shall . . . pass . . . any . . . law impairing the obligation of contracts.” This constitutional provision has been held by the Supreme Court of the United States to include ordinances enacted by cities which impair the obligation of contracts. [Murray v. Charleston, 96 U. S. 432; see also, Railroad v. Memphis, 96 Fed. l. c. 126.]

Of course, the Murray case, supra, is not directly in point here, because constitutions are not always construed by the same rules as criminal statutes, but it does tend to show that the ruling in the Pennsylvania case, cited by petitioner, is erroneous.

In Miller v. Dunn, 72 Cal. 462, l. c. 465, the Supreme Court of California was urged to hold that the word law as found in the Constitution of that State was intended to cover only statutes enacted by the General Assembly, but instead of announcing such a rule that court said: “It is useless to attempt to apply ironclad rules of interpretation to any phrase or word used in a constitution. Especially is this true of a word which has a technical as well as a popular meaning. There is no word in the language which in its popular and technical application takes a wider or more diversified signification than the word ‘law,’ — its use in both regards is illimitable.”

However, leaving out of view the precedents, we think the statute under consideration ought to be construed to include an election held pursuant to the ordinance hereinbefore mentioned. If one speak generally of the laws of a certain city or place he is presumed to refer to all laws having a binding force in that locality, and not merely to a certain class of laws b3r which that vicinity is governed.

If a State statute using the word “law” in its broad general sense is intended to apply exclusively to places where no incorporated city or town exists, we might be justified in holding that such word so used did not apply to city ordinances, but we find that sections 6155 and 6177, supra, are a part of article 14, chapter 43, Revised Statutes 1909, which by its very terms is intended to govern elections in cities having a population of 100,000, or more (Sec. 6000, R. S. 1909), and as we judicially know that cities of that size are empowered to enact ordinances, it is but natural that the Legislature should intend that said sections 6155 and 6177 should apply to elections held pursuant to the valid ordinances of such city.

We are not unmindful of the fact that all criminal and penal statutes must be strictly construed against the State and liberally construed in favor of the accused. [State ex rel. Spriggs v. Robinson, 253 Mo. 271, l. c. 284, and cases there cited.] However, this well-known and universally accepted rule of construction does not warrant such an unreasonable construction of even a criminal statute as will thwart the intention of the lawmaker. [36 Cyc. p. 1183, b.] We think such would be the result if we adopted the views urged by petitioner’s resourceful attorney. That the adoption or rejection of the street car franchise, upon which petitioner voted twice, was a “public proposition” within the purview of section 6177, Revised Statutes 1909, is too plain to need citation for Its support. We, therefore, hold that the municipal election held in Kansas City on July 7, 1914, was an election as defined by section 6177, supra, at which a public proposition was submitted by law.

II. Petitioner also contends that the judgment under which he is imprisoned does not recite the acts ^-e was found guilty, and that such judgment is too vague and indefinite to warrant the marshal in depriving him of his liberty. Omitting caption, said judgment reads as follows:

“Now comes the prosecuting attorney, comes also the defendant Joseph Siegel alias James Foley and said defendant being arraigned before the court for the plea says he is guilty as charged and that the court fixes the punishment of said defendant at two years in the State penitentiary. It is therefore considered and adjudged by the court that said defendant Joseph Siegel do undergo confinement in the penitentiary of the State of Missouri for and during the period of two years for said offense of illegal voting.
“That the State of Missouri have and recover of and from said defendant all costs herein and that execution issue therefor and the court further orders that said defendant be remanded to the custody of the marshal of Jackson county and that said marshal deliver said defendant into the custody of the proper officer in charge of said penitentiary therein to be confined as aforesaid.”

That the act of voting more than once in the same election is “illegal” voting and denounced as a felony by section 6155', Revised Statutes 1909, there can be no doubt, and while that statute also denounces several different kinds of illegal voting we find that the judgment is clear enough on that point. It is unnecessary for a judgment to designate the particular acts by which a crime was consummated with the same precision as an indictment.

It will be observed that the judgment against the petitioner is based on the finding that he pleaded guilty “as charged,” and as judgments can be tested by the pleadings or indictment upon which they are based (23 Cyc. 1102 [2] ) we find this judgment is not so vague as to render it invalid. The information charges but one offense, and the effect of finding that petitioner pleaded guilty “as charged” is equivalent to a general verdict of guilty by a jury when only one offense is charged and when, under the law, the defendant cannot be convicted of a lower degree of the of ense than the one charged. In such cases a general verdict finding the defendant guilty has uniformly been held to be sufficient. [State v. Stark, 202 Mo. 210, l. c. 221; State v. Martin, 230 Mo. 680, l. c. 691.] In State v. Williams, 191 Mo. 205, l. c. 214, this court approved a judgment which did not refer to the nature of the crime of which the defendant was found guilty— the jury in that case having found that defendant was guilty as charged in the information. The objections to the judgment will be overruled.

III. Petitioner also assails the information under which he was convicted upon many grounds, but conebisions we have reached render it unnecessary for us to encumber this opinion with a full copy of such information.

Among the objections to the information is that it does not charge that petitioner feloniously voted twice in the municipal election before mentioned, and therefore, that the trial court exceeded its jurisdiction in sentencing him as for a felony.

We find that, while the information does not contain the word “feloniously” it does recite in detail the acts of defendant in voting more than once in the same election, as prohibited by section 6155, Revised Statutes 1909; and if it does not contain all the averments necessary to constitute a valid information this does not entitle the petitioner to a discharge upon a writ of habeas corp%is. If the information is not legally sufficient to support the judgment, then petitioner could have arrested the judgment by a timely application for that relief and if the circuit court had denied such relief the judgment could have been reversed by bringing the cause here by appeal. Section 23, article 2, of our Constitution, provides that “if judgment be arrested after a verdict of guilty on a defective indictment” the defendant may again he placed upon trial upon a proper indictment; so that, if petitioner is entitled to any relief, the most he has shown himself entitled to is to have the judgment against him reversed and remanded — not to an absolute discharge. Before a prisoner can be released on habeas corpus it must be shown that his confinement is wholly unlawful. To award a prisoner greater relief on habeas corpus than he could have secured by an ordinary appeal would amount to a nullification of those statutes which permit him to secure relief from errors in the record proper by appeal.

The petitioner will therefore he remanded to the custody of the marshal of the criminal court of Jackson county. It is so ordered.

All concur,.Ro»J, J., in paragraphs two and three and in the result.

ON REHEARING.

BROWN, J.

In his motion for rehearing* petitioner has called our attention to the fact that sections 6155 and 6177, Revised Statutes 1900, applicable only to cities having one hundred thousand inhabitants or more, may be invalid on the ground that they are special laws and in conflict with section 4427, Revised Statutes 1909, which is a general law relating to the same subject (illegal voting), and that, under the rule of this court in State v. Anslinger, 171 Mo. 600, the conviction of petitioner may be illegal.

After a careful examination of the above-cited statutes, and also of the rule announced in the Ans-linger case supra, we find that, even if it is true that section 4427, supra, is the only legal statute under which defendant could have been prosecuted for voting more than once, his conviction is fully'supported by said section last named.

There is nothing in the information to which petitioner pleaded guilty that points more definitely to sections 6155 and 6177, Revised Statutes 1900, than to said general statute (section 4427, supra). The information is as good under the one statute as the other, and as the court, upon defendant’s plea to the charge of voting more than once possessed the power to sentence him to a term of “not exceeding five years,” under section 4427, Revised Statutes 1909, the sentence of two years actually imposed is in conformity with that section. The fact that the court might have imposed a lighter sentence is no ground for relief by habeas corpus.

In this action of habeas .corpus there is nothing before us but the record proper, and for aught that appears the information may have been drawn and the punishment imposed under section 4427, Revised Statutes 1909. The motion for rehearing is, therefore, overruled.

All concur except Bond, J., who concurs in result.