text:
    THE STATE v. THOMAS McDONOUGH, Appellant.
    Division Two,
    February 7, 1911.
    1. INDICTMENT: Venue: Carnal Knowledge. If the venue of the assault is properly laid and is also stated in the margin, the indictment is not insufficient for that there is no venue therein laid as to the averment of the carnal knowledge charged.
    2. PUNISHMENT: Verdict. A verdict in the words, “We, the jury in the above .entitled cause, find the defendant guilty of assault with intent to ravish, and assess the punishment at •three years,” is sufficient to support a judgment fixing defendant’s punishment at three years’ imprisonment in the penitentiary; for if it failed to declare the punishment, it fell within the provisions of the statute (R. S. 1909, sec. 5254) authorizing . the court to fix it.
    3. INSTRUCTION: Defendant and Wife as Witnesses. An instruction authorizing the jury to take into consideration the interest of defendant and his wife in the result of the trial, and their marital relation, in passing upon ' the credibility of their testimony, is not reversible error, but is approved.
    4. TESTIMONY: Incompetent: Detailed in Absence of- Jury: Withdrawal by Instruction. When incompetent and harmful statements come into a criminal case, wherein the defendant is charged with a low offense involving moral turpitude, the prudent course is to exclude the jury until the competency of the proffered testimony can be determined; and if admitted, it is extremely doubtful whether the impression made on the minds of the jury can be neutralized by an instruction.
    5. -: Conversations: Hearsay. A conversation between the wife of defendant and the mother' of prosecutrix, in a carnal knowledge case, in which is discussed the character of defendant, in his absence, is hearsay, and is not competent unless offered for the purpose of impeaching one or the other as a witness.
    6. -: Wife as Witness: Matters Not Referred to in Chief: Good Character. On cross-examination of the wife of defendant, he being on trial for carnal knowledge of a little girl, she was asked by the State. “How many times have you and your husband been separated during that time?” No reference to the separation from her husband had been made in her examination in chief. Held, first, that the statute confers upon the wife the same immunity from cross-examination beyond the scope of the direct examination that it confers upon her husband on trial, and she cannot be cross-examined when called as a witness for him about matters not referred to in her examination in chief; and, second, the evidence was not competent on the issue of good character, because the character of a defendant on trial cannot be assailed by the State by proof of specific acts of wrongdoing.
    Appeal from St. Louis City Circuit Court. — Eon. Geo. E. Shields, Judge.
    Reversed and reminded.

      Thos. B. Earvey for appellant; Mat Eolland of counsel.
    (1) It is error for an instruction to single out the defendant, or his wife, or any other witness, and practically warn the jury against the testimony of such witness. Stetzler v. Railroad, 210 Mo. 712; Zander v. Railroad, 206 Mo. 461; Huff v. Railroad, 213 Mo. 515; Montgomery v. Railroad, 181 Mo. 477; Connor v. Railroad, 181 Mo. 415; Shepard v. Railroad, 189 Mo. 362. (2) The court erred in permitting Mrs. Mansfield to narrate a conversation between her and Mrs. McDonough, harmful to the defendant, and not .in his presence, and no part of said conversation having been asked for by defendant in his cross-examination. Such testimony is merely hearsay. And even if part thereof had been asked for by the defendant, the State would be entitled only to all of it on the same subject-matter. 3 Wigmore on Evidence, sec. 2115. (3) A fact cannot be established by asking a witness if he did not state to a certain person and at a certain time that the thing had occurred. (4) The erroneous admission of harmful testimony cannot be cured by withdrawing it from the consideration of the jury, and particularly when the court has been advised beforehand of the character of the evidence sought to be elicited. State v. Bateman, 198 Mo. 222; State v. Thomas, 99 Mo. 257; State v. Fredericks, 85 Mo. 145; State v. Hopper, 71 Mo. 425; State v. Daubert, 42 Mo. 242; State v. Mix, 15 Mo. 153. (5) A verdict which is insufficient to support a • judgment can be cured only by an assessment by- the court of the minimum punishment for the offense. State v. Van Wye, 136 Mo. 243; State v. .King, 194 Mo. 484; State v. Gordon, 153 Mo. 576; State v. Thornhill, 174 Mo. 372. (6) A child only six years of age and who admits that she is stating whatever her mother has told her to say, and who says that if she testifies falsely she will go to the bad place only because her mother and the prosecuting attorney had told her to so state, is not a competent witness. (7) The evidence was insufficient to sustain the verdict and the demurrer thereto should have been sustained. State v. Goodale, 210 Mo. 275; State v. Crabtree, 170 Mo. 642.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General,' for the State.
    (1) The verdict was sufficient to support the judgment. R. S. 1909, sec. 5254. This verdict can he criticised only when it is assumed that the omission of the words “in the penitentiary’’ amounts to a failure to fix the punishment. The jury found the defendant guilty, and either the verdict fixed the punishment, or it did not. If it did, the sentence conforms to it. If it did not, the court had the right to fix the punishment and did so under its statutory authority. Sec. 5254, R. S. 1909; State v. Dalton, 106 Mo. 468; State v. Dennison, 108 Mo. 543; State v. Foster, 115 Mo. 450; State v. Harney, 168 Mo. 195; State v. King, 194 Mo. 484; State v. Ammons, 220 Mo. 8; State v. Thorn-hill, 174 Mo. 371; State v. Van Wye, 136 Mo. 243; State v. Rollins, 226 Mo. 538. In case of defective verdict the court is not required to assess the minimum penalty. R. S. 1909, sec. 5254; State v. Emery, 76 Mo. 350; Fooxe v. State, 7 Mo. 502. It is required to assess the minimum only where the punishment assessed by the jury is below the legal limit. R. S. 1909, sec. 5255. Nor is the verdict assailable on the ground that it is for an offense not included in the indictment. State v. Dalton, 106 Mo. 469; State v. Frank, 103 Mo. 122; State v. Headley, 224 Mo. 179. (2) The testimony of the child, of the mother, and of the nurse and doctor, was sufficient on which to ground, the conviction in this case, under all the circumstances. This court one year ago affirmed a judgment in a case in which the evidence was not wholly unlike the evidence in the case at bar. State v. Headley, 224 Mo. 180. It is true that in this case the State’s evidence discloses some inherent weaknesses and some apparent contradictions, besides being contradicted in many respects by the evidence of the defense. These things, however, go solely to the credibility of the evidence, and that was for the jury. State v. Headley, 224 Mo. 190. The following eases also indicate that the evidence here was sufficient. State v. Shroyer, 104 Mo. 446; State v. Smith, 80 Mo. 518. (3) (a) The question as to the competency of the child, Virginia Mansfield, was settled against appellant by the trial court and “is not open to review unless there be a clear abuse of judicial discretion,” or the witness was admitted ‘ ‘.upon an erroneous view of a legal principle. ” State v. Headley, 224 Mo. 189: The ruling of the trial court falls within neither of the exceptions mentioned. Her credibility as a witness was for the jury, after the-court held her 'competent. Appellant cites no cases-in support of his contention that the child was not competent, (b) Appellant complains of the admission of the testimony of Mrs. Mansfield as to a conversation between her and the wife of the appellant. This-conversation was not mentioned in the State’s direct examination of Mrs. Mansfield. On re-direct examination the assistant circuit attorney asked Mrs. Mansfield to detail the conversation between berself and Mrs. McDonough, which occurred at the Mansfield home. Appellant’s counsel permitted the witness to answer in part and then interjected: “Well, here: I don’t think the conversations between the women are competent — what she may have said to Mrs. McDonough, warning her about her husband or making complaints to her.” This was the objection, and it was made after that part of the conversation to which it was applicable was in. It could not serve a higher function than a motion to strike out, so far as that part of the conversation was concerned. And motions to strike out are not favored. State v. Eorsha, 190 Mo. 326. Besides, the objection was not broad enough to raise the question attempted to be presented by counsel here, State v. Young, 153 Mo. 449, unless the court’s ruling can be said to fall within the principle laid down in State v. Huff, 161 Mo. 490. But, aside from all questions of procedure, the record shows that appellant’s counsel called for a part of the conversation on cross-examination. The cross-examination entitle the State to prove the. conversation. Burghart v. Brown, 51 Mo. 601; 3 Wigmore on Ev., sec.' 2094 (2), 2114 (4), 2115. It is necessary to concede that had a sufficiently specific and comprehensive objection been made, the trial court went quite as far as it could without error. But this judgment cannot be reversed on the admission of this testimony under the circumstances disclosed by the record and the authorities cited above. Besides, the court directed the jury to disregard that portion of the conversation on which the complaint here is really grounded. Counsel conceded in the trial court that “if it is a conversation about the same subject-matter, that is all open.” He cannot complain that the trial court took him at his word. Another ruling urged as error was that with respect to the cross-examination of appellant’s wife concerning the number of times she and her husband separated during their married life. Just what this testimony had to do with the case is not apparent to us. However, it is not at all obvious that it was harmful to appellant. Counsel .characterize it as “erroneous” and “flagrant” and “harmful,” but do not point out how it could have injured appellant. It is not every admission of incompetent testimony that is ground for reversal. State v. Howard, 102 Mo. 148; State v. Jennings, 18 Mo. 439; State v. Barrington, 198 Mo. 81. Further, the trial court withdrew the evidence from the consideration of the jury. Under the circumstances this would seem sufficient in this case, as it was held to be in State v. Bateman, 198 Mo. 221; State v. Hopper, 71 Mo. 429. (4) The only instructions criticised in appellant’s brief are those relative to the weight to be given the testimony of the appellant and his wife. The instruction is, as counsel for appellant concede, a rescript of one approved in State v. Napper, 141 Mo. 407. We are not unwilling to admit that there is much to be said in support of the position taken by appellant’s counsel and some of the judges of this court, that the principle of this instruction is bad. State v. Barrington, 198 Mo. 126; State v. Young, 99 Mo. 680. It does, at times, seem a little illogical for trial courts to say, in effect, to juries: “The indictment is a mere formal charge and is not to be taken as any evidence of defendant’s guilt,” but “you will (or may) consider the fact that he is the defendant” (that he is indicted), ... in passing on the credibility of his testimony.” But since the Maguire case, this court has approved this instruction as to the defendant and that given in this case is open to no criticism to which the other might not justly be subjected. It comes here in practically every transcript in a criminal ease. The authorities approving it in principle are conceded by counsel for appellant to be numerous. It has been intimated by this court that while section 5242 is an enabling statute, it attaches to testimony which would, without the statute, be wholly incompetent, the infirmity pointed out to the jury in the instruction given. On this theory, the remedy must be applied by the Legislature and cannot be obtained in this court.
   KENNISH, P. J.

The defendant was indicted in the city of St. Louis, charged with the crime of rape upon Virginia Mansfield, a female child under the age of fourteen years. Upon a plea of not guilty, he was tried and convicted of the offense of assault with intent to ravish, and his punishment assessed at imprisonment in the penitentiary for three years. Judgment was pronounced in accordance with the verdict and after taking the proper steps he appealed to this court.

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

At the time of the offense charged the defendant, a married man with a family consisting of a wife and two small children, was engaged in the business of keeping a small grocery store and saloon in the city of St. '.Louis. He resided across the street from the store. Mrs. Mansfield, mother of the prosecutrix, her mother Mrs. Stanton, the prosecutrix and her sister, resided near the store and residence of the defendant. The prosecutrix was six years of age and her sister about two years older. The Mansfield children and the .two small children of the defendant played together. On the day of the alleged crime the defendant, as was his custom, went to his residence in the middle of the afternoon to take a nap, leaving the store in charge of his wife, so that he could return and keep his place open until late at night. About five-thirty o’clock in the afternoon of June 25, 1908, the children were playing on the defendant’s porch, and he called the prosecutrix and his own four-year old girl into his room. The prosecutrix testified that the defendant laid her on the bed alongside of him, took down her panties, placed his hand on her private parts and hurt her. The defendant’s little girl was in the room at the time. The prosecutrix then went with the defendant’s daughter to get a bucket of ice cream, and, being called by her sister, went home to her supper. Mrs. Mansfield testified that-the prosecutrix was sobbing and crying when she came home and that upon being asked to tell what was the matter, related her mistreatment by the defendant. Mrs. Mansfield immediately examined' her daughter and found her private parts contused and swollen and found some traces of blood. About two or three hours thereafter Mrs. Mansfield and her mother went to the defendant’s store and, in the presence of his wife, accused him of mistreating the little girl. He denied any knowledge of the alleged misconduct and, after his accusers had left, sent his wife to the Mansfield home to learn the facts as to the charges made. Two days thereafter Mrs. Mansfield, accompanied by a midwife, took the prosecutrix to a physician, who found the parts somewhat bruised and inflamed on the inside. The physician and the midwife testified as to the child’s injuries.

The defendant and his wife testified in his behalf and denied the incriminating facts’ testified to by the witnesses for the State. Other witnesses for the defendant testified to statements made by Mrs. Mansfield, soon after the date of the alleged crime, in conflict with her testimony at the trial. The defendant introduced evidence of good character and, although questions were asked his character witnesses on cross-examination, indicating that defendant was not of good char acter, no evidence was offered by the State -upon that issue. Other facts in evidence will be referred to in the opinion.'

I. Omitting formal parts, the indictment is as follows:

The grand jurors of the State of Missouri, within and for the body of the city of St. Louis, now here in court, duly impaneled, sworn and charged, upon their oaths present, That Thomas McDonough on the twenty-fifth day of June, one thousand nine hundred and eight, at the city of St. Louis aforesaid, in and upon Virginia Mansfield, a female child under the age of fourteen years; to-wit, of the age of six years, unlawfully and feloniously did make an assault, and her, the said Virginia Mansfield, unlawfully and feloniously did carnally know and abuse; contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State.’’

Appellant assails the indictment as insufficient on the ground that while the venue of the assault is properly laid and is also stated in the margin, there is no venue laid as to the averment of carnal knowledge.

It is provided by section 5107, Revised Statutes 1909, that, “It shall not.be necessary to state any venue in the body of any indictment or information;, but the county or other jurisdiction named in the margin thereof shall be taken to be the venue for all the facts stated in the body of the same.” And section 5115 provides: “No indictment or. information shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected . . . for want of a proper or perfect venue; nor for want of any venue at all. ’ ’ Under these statutes, as construed in the following decisions, we hold the indictment sufficient- against the attack made upon it, and that this point in appellant’s brief is without merit. [State v. Simon, 50 Mo. 370; State v. Dawson, 90 Mo. 149; State v. Brown, 159 Mo. 646; State v. Hughes, 82 Mo. 86.]

II. Appellant contends that the verdict is insufficient to support the judgment. It is as follows: “We, the jury in the above entitled cause, find the defendant guilty of assault with intent to ravish, -and assess the punishment at three years. F. Westman, Foreman.”

Section 5254, Revised Statutes 1909, provides: “Where the jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, or assess a punishment not authorized by law, and in all cases of judgment by confession, the court shall assess and declare the punishment, and render judgment accordingly.”

It is apparent that if the.verdict in this case failed to declare the punishment, it fell within the provisions of the foregoing statute, and the punishment was properly fixed by the judgment of the court. On the other hand, if it sufficiently declared the punishment, it is not open to the objection made.

III. Instruction numbered 11 is in the usual form and authorized the jury to take into consideration the interest of the defendant and his wife in the result of the trial, and their marital relation, in passing on the credibility of their testimony.

Appellant vigorously assails this instruction as wrong in principle and urges that it should not longer receive the approval of this court. This instruction has been given in criminal cases in the courts of this State for over thirty years. It has been considered and approved by this court in many cases and we are unwilling to hold that the trial court committed reversible error in giving it in this case. [State v. Maguire, 69 Mo. 197; State v. Boyer, 232 Mo. 267; State v. Dilts, 191 Mo. 665, and cases cited.]

IV. After Mrs. Mansfield and her mother had returned from defendant’s store to their home, Mrs. McDonough, the wife of the defendant, went to the Mansfield home, at her husband’s suggestion, to learn the facts about the trouble. Mrs. Mansfield testified that she sent for Mrs. McDonough, and that the latter came to her house in response to the request. When Mrs. Mansfield was on the witness stand as a witness for the State, and while the State was making its case in chief, she was asked, on cross-examination, if Mrs. McDonough came to her home that night, and she answered in the affirmative. After explaining where her children were when Mrs. McDonough arrived,-she was asked: “Let me ask you and refresh your memory possibly in this way; don’t you remember Mrs. Mc-Donough asked you to let her see the little child and you said you would and called her in?” To which the witness answered: “No, sir. She didn’t ask me to examine her. We wanted her to tell the story, but Virginia refused and would not do it. I asked her and pleaded with her to tell Mrs. McDonough, but she said she would not do it. ’ ’

Invoking the principle of law that when a part of a conversation is drawn out in evidence the adversary is entitled to the whole utterance, the prosecuting attorney, on redirect examination, asked the witness to “tell the jury all the conversation you had with Mrs. McDonough when you sent for- her and she came over to your house.” The witness answered: “Yes, sir. Well, she came over and she was crying, and I told her — I said, ‘Mrs. McDonough, I want to warn you. You have two little girls there yourself.....’ ”

Objection was here made by counsel for the defendant to the testimony of the witness, which objection was argued to the court at length, and the court ruled that the question was competent. The witness then continued: “I said ‘Mrs. McDonough, I want to warn yon.’ I said, ‘Ton have two little girls of your own over there. You nevér trust them under his hands.’ I said, ‘Because when he has done that to my little girl he will do it to yours.’ She said she knew he was lowj but she never thought he would do like that. She said, ‘If I had been a woman of the half world he couldn’t have treated me worse than he did with disrespect and with every abuse in the world. Many a night I have had to sit out on the front steps for fear he would shoot me.’ ” Upon objection by the defendant, the court ruled: “Conversation with regard to this offense is competent. Conversation with regard to other matters is not.” Counsel for defendant then objected that, “The conversation, as it turned out, was altogether about other matters.” To which the court replied and ruled as follows: “No, it was not. It was about her warning her against McDonough doing the same thing to her little girl, and referred to the fact of her having treated her little girl this way. That part of the conversation is about this matter. What she said about matters that took place between herself and her husband before that is not competent. I so rule and instruct the jury to disregard that part of the conversation.” The defendant saved his exceptions.

If the foregoing ruling of the court is the law, then the State, in a criminal case, even in a capital case, may have repeated to the jury, as evidence in support of the charge, the talk of two women, out of court and not in the presence of the defendant, in which they ágree in advance of the jury that the defendant is guilty of the offense charged, as well as of many other offenses in no manner connected with the case on trial. While the court told the jury, after this evidence was in, that they should not consider the conversation, as to the other offenses of the defendant, testified to by Mrs. Mansfield, it is questionable whether the effect of such an instruction is not of theoretical rather than of practical efficacy.

Before taking up the main question involved in the ruling now under consideration, reference should be made in passing to the practice, not uncommon in the courts, of hearing- in the presence of the jury the evidence upon the competency of a witness or of testimony offered, in cases as the one in hand, where the testimony may have an influence upon the minds of the jury, and, if found incompetent, attempting to withdraw its effect by an instruction or direction to the jury.

In the trial of a criminal case, and especially in a case involving such moral turpitude and of such revolting character as that for which defendant was on trial, the jurors come into the ease with very decided views upon the subjects necessarily discussed in the testimony of the witnesses, and when statements are made by the witnesses which are harmful and incompetent under the rules of evidence, it is extremely doubtful if the impressions made upon the minds of the jury can be neutralized by an instruction or direction of the court. There is no difficulty in obviating 'any danger of injustice to the accused hy settling such matters in the absence of the jury. This course may require a little additional time, but the predominant importance of vouchsafing to the accused a fair trial, upon competent testimony only, fully justifies the propriety of the course suggested, and which, in fact, is generally followed by the courts.

In the case of State v. Witherspoon, 231 Mo. 706, this court said: “When, in the course of a trial, a question is raised as to the competency of a witness, and the circumstances of the case are such that the voir dire examination of the witness by the court may have an influence on the minds of the jury upon the issues before them, this court has commended it as a wise and judicious course of procedure that the jury be retired from the courtroom pending such examination. [Stetzler v. Railroad, 210 Mo. l. c. 709.]”

. Was the whole utterance, the entire conversation of Mrs. Mansfield and Mrs. McDonough, admissible in evidence against the defendant?

Neither of these persons engaged in the conversation was a party to the cause, and under the well recognized general rules of evidence any statement made by either out of court in the absence of the defendant was hearsay and not admissible except in the case of impeachment. It seems to be conceded by appellant upon this point that the State was entitled to the whole conversation between the two- women to the extent and so far as it dealt with the particular matter brought out on cross-examination by the defendant. But upon what theory was the principle invoked by the State applicable in this case? Mrs. Mansfield was merely a witness and her statements out-of court were hearsay. No ground was laid for her impeachment. It was clearly competent for the defense to impeach her by proving prior statements in conflict with her testimony, and in stich case it would'have been competent for the State to have offered evidence of former statements in harmony with her testimony, but that is not this case. '

The rule of law under consideration, as applied to conversations, is limited to admissions and declarations of parties to the cause, and only in exceptional cases has it ever been applied to third parties. The principle is stated in 3 Wigmore on Evidence, section 2115, as follows: “The general phrasing of the principle, then, is that when any part of an oral statement has been put in evidence by one party, the opponent ’may afterwards on cross-examination or re-examination, put in the remainder of what was said on the same subject at the same time. This phrasing leaves something to he desired in definiteness, but it is practically applied without much difficulty' and with little or no quibbling. 'Its most common application is to conversations in general, including the admissions of an opponent and to inconsistent statements of a witness used in impeachment; here it may be noted that a conversation in a party’s presence is in effect merely one form of an admission, because statements in a party’s presence are usually equivalent to admissions by him. ” _

There is a striking analogy in the facts and questions of law presented, between the' case of People v. Flaherty, 162 N. Y. 532, and the case at bar. In that case the defendant was convicted of the crime of having sexual intercourse with a female under the age of sixteen years. The prosecutrix was Marie Sweeney. She first told the Skillen family of her trouble. Jennie Skillen was a' witness for the people. The court, through Parker, C. J., l. c. 544, discussing the questions raised upon her testimony, said: “Now the district attorney having brought out the fact that the accusation against the defendant by Marie Sweeney was first made to the Shillen family, the defendant sought to show on cross-examination that Jennie Skillen had first suggested the name of Father Flaherty to Marie Sweeney as the author of her misfortune. Counsel said, ‘Didn’t yon say to her, “Wasn’t it Father Flaherty!” and she said “yes!” A. No, sir, I did not. Q. How did you say that! A. As near as I can remember I asked her who she had been with. She didn’t answer. I said “Marie, you know and I know you have been with some one, and I want you to tell me- who the author of your trouble is.” She wouldn’t tell me. Q. I only ask you for the question and the answer, the time when the name of Father Flaherty was used; what did you say and what did she say! A. I said “Who was it!” . . . She then said it was Father Flaherty. Q: And that was the first mention she made of the name of Father Flaherty in the matter? A. Yes, sir.’ This was all of the cross-examination on that subject. The counsel for the people then put the question which, after referring to the statement of Marie Sweeney that Father Flaherty was responsible for her condition, concluded as follows: ‘Did she give you any reason why she had intercourse with him?’ These reasons were not competent as evidence prior to the cross-examination of the witness, nor were they made either necessary or competent by that cross-examination. This was not a case where a part of a conversation being’ given, the rest was needed in order to present the situation fairly; nor did the question call for the rest of the conversation, hut instead it ashed for the reasons only, and they were not competent as evidence for any purpose ; nor is there even excuse for suggesting that they were made so by the fact that the hearsay declarations of the complainant as. to the name of the person responsible for her condition was perhaps drawn out by the defendant instead of the people.”

We are of opinion that the court committed rever-' sible error in permitting Mrs. Mansfield, over the objections of the defendant, to give in evidence to the jury, the alleged conversation with the defendant’s wife.

VI. On the cross-examination of the defendant’s wife she was asked by counsel for the State: “How many times have you and Mr. McDonough been separated during that time?” No reference to her separation from her husband was made in. her examination in chief. Upon objection that the cross-examination was improper because that, matter was not referred to in chief, the court ruled that only the defendant w'as protected in so limiting the cross-examination, and that the evidence was competent on the issue of good character. This ruling of the court was clearly erroneous, and cannot be sustained upon either of the reasons assigned. The first reason given is wrong, because the'statute confers upon the wife the same immunity from cross-examination beyond the scope of her direct examination, as in the case of the husband on trial. [R. S. 1909, sec. 5242.]

The ruling cannot be sustained on the second ground for the reason that the character of the defendant on trial cannot be assailed by the State by the proof of specific acts of wrongdoing. [State v. Bulla, 89 Mo. 595; State, v. Lockett, 168 Mo. 480; Kelley’s Crim. Law and Prac., sec. 252.]

' There are other alleged errors presented in appellant’s brief, but because of the disposition to be made of this case we do not deem it necessary to pass upon them.

We are of the opinion that prejudicial error was committed against the defendant. The cause is, therefore, reversed and remanded for a new trial.

Ferriss and Brown, JJ., concur.


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    THE STATE v. FLORINDO BELFIGLIO, Appellant.
    Division Two,
    February 7, 1911.
    1. MANSLAUGHTER: Sufficient Evidence: Self-Defense. Defendant, a locksmith, was called upon by deceased to repair a lock, and when he informed him that he could not so repair it as to make it work in a satisfactory manner, deceased became angry and a fight immediately ensued. After a few seconds of clinching and scuffling,, deceased struck defendant a heavy blow on the nose with his fist, knocking him down. Thereupon defendant arose and struck deceased in the left temple with a steel screw-driver, with which he had been trying to fix the lock, which penetrated the brain, and caused a mortal wound. Eelcl, that the court cannot assume that the testimony establishes a clear case of self-defense, but the evidence tending to prove defendant’s guilt was strong enough to carry the case to the jury, and sufficient to support a verdict of manslaughter in the fourth degree.
    2. DEADLY WEAPON: So Pronounced in Instruction: ScrewDriver. Where the instrument with -which defendant inflicted the mortal wound was a steel screw-driver, was of such character that defendant was able to drive it through the 'skull of deceased with one hand at a single blow, was introduced in evidence, and no description of it is preserved in the evidence whereby the appellate court may know its size, length or weight, or whether sharp or blunt, it will not be held that the trial court committed error' in instructing the jury it was a deadly weapon, although it is usually necessary for the court to submit to the jury, for its determination, the issue of whether or not the weapon used was a deadly weapon.
    Appeal from St. Louis City Circuit Court. — Eon. George É. Shields, Judge.
    Affirmed.

      Chas. P. Johnson and Silver S Dumm for appellant.
    (1) Instruction 1, given by the court, is erroneous and prejudicial, in telling the jury that a steel screw-driver set in a wood handle is a dangerous and deadly weapon. This was a question for the jury, and the court committed error in assuming its dangerous and deadly character. State v. Nueslein, 25 Mo. 126; State v. Harper, 69 Mo. 425; State v. Grayor, 89 Mo. 605; State v. Weeden, 133 Mo. 70; State v. Grant, 152 Mo. 57; State v. Gordon, 191 Mo. 131; State v. Harris, 209 Mo. 423; State v. Clancy, 225 Mo. 654; Acers v. United States, 164 U. S. 388 ; Wharton on Homicide, p. 137; Melton v. State, 30 Tex. Ct. App. 273; Jenkins v. State, 30 Tex. Ct. App. 379; United States v. Small, 2 Curtis 241. (2) The evidence is insufficient to support the verdict. And while this court is not a trier of facts, it will examine the record, and will reverse a judgment founded upon insufficient evidence. State v. Marshall, 17 Mo. 378; State v. Mahan, 138 Mo. 112; State v. Nesenhener, 161 Mo. 161; State v. Scott, 177 Mo. 673; State v. Crabtree, 170 Mo. 612; State v. Gordon, 199 Mo. 561. Where the evidence shows a clear case of self-defense this court will reverse the judgment and discharge the defendant. State v. Bartlett, 170' Mo. 658; Runyan v. State, 57 Ind. 85; Beard v. United States, 158 U..S. 561; 3 Rice’s Evid., sec. 360. And “if nature has not provided the means for such resistance, art may; in short, a weapon may be used to effect the unavoidable necessity.” State v. Bartlett, 170 Mo. 671.

      Elliott W. Major, Attorney-General, and Charles G. Revelle, Assistant Attorney-General, for the State.
    (1) The State’s evidence, and even that of the appellant himself, is amply sufficient to warrant the verdict, and this court is not a trier of facts and will not invade the peculiar functions of the jury and trial court. State v. Mathews, 202 Mo. 117; State v. McCullough, 171 Mo. 571; State v. Tetrick, 199 Mo. 100. (2) The sole criticism that could possibly be leveled against instruction 1 is that the first part of it assumes and declares as a matter of law that a “steel screwdriver set in a wooden handle” is a deadly weapon. This objection, however, must fall when we consider the nature of the weapon used in this particular case, and the deadly effect of its use. In this connection it should be remembered that deceased was a person of ordinary size, sound and physically strong enough to knock appellant to the ground with a single blow, while the person who used the weapon weighed-but about 130 pounds. A weapon which, when used but once on a person of such physical condition, will inflict the wounds disclosed by this record and produce his death almost immediately, is a weapon which the law properly denominates dangerous and deadly, and the court was warranted in so instructing. State v. Bowles, 146 Mo. 13; State v. Keener, 225 Mo. 496; Jeff v. State, 39 Miss. 600; State v. Jones, 86 Mo. 626; State v. Musick, 101 Mo. 267.
   BROWN, J.

Defendant was convicted of manslaughter in the fourth degree in the circuit court of St. Louis City, for the act of feloniously stabbing and killing with a screw-driver, one Albert L. Reid, on April 28, 1909; and prosecutes this appeal from a judgment of that court imposing a punishment of nine months’ imprisonment in jail.

Defendant is an electrician and locksmith, while the deceased was a clothes-presser. The evidence on behalf of the State is to the effect that defendant was called upon to fix a door lock for deceased on April 28, 1909, and upon informing deceased that he could not fix the lock so as to make the key thereto work in a satisfactory manner, deceased became angry, and a fight immediately ensued. After clinching and scuffling a few seconds, during which no serious harm resulted to either combatant, deceased struck defendant a heavy blow on the nose with his fist, knocking him down; thereupon defendant arose and stabbed deceased in the left temple with a steel screw-driver with which he had been trying to fix the door lock. The screw-driver passed through the skull of deceased into his brain, and produced a mortal wound from which he died on the following day.

The defendant testified that deceased knocked him down three times, and' that he struck the fatal blow with the screw-driver just as he was rising the third time. The whole testimony leads us to believe that deceased brought on the fight by his domineering-remarks, while defendant was not as anxious to avoid the difficulty as a law-abiding man ought to have been under similar circumstances. Defendant and deceased were of nearly the same size. Defendant proved a good reputation as a peaceful and law-abiding citizen prior to this unfortunate occurrence.

Defendant complains that the evidence is not sufficient to support the judgment; that such a clear case of self-defense was proven as to warrant this court in discharging the defendant; and that the trial court' committed reversible error in instructing the jury that the screw-driver with which deceased was killed was a deadly weapon.

To our minds the evidence tending to prove defendant’s guilt was strong enough to carry the case to the jury and we are unwilling to disturb the judgment on the facts detailed by the witnesses. [State v. Mathews, 202 Mo. 143, l. c. 147.]

The complaint that the trial court ought to have submitted to the jury the issue of whether or not the screw-driver with which the fatal wound was inflicted was a deadly weapon, presents a more difficult problem. Whenever a mortal wound is inflicted with any weapon other than a gun, pistol, large knife or some other instrument generally known and classified as a deadly weapon, it is usually necessary for the court to submit to the jury, for its determination, the issue of whether or not the weapon used was of a deadly nature. [State v. Clancy, 225 Mo. 654; State v. Harris, 209 Mo. 423.]

However, in a case like the one at bar where the weapon used was of such a nature that defendant was able to drive it through the skull of an adult with one hand, at a single blow, and where the weapon was introduced at the trial, but no description of it is preserved in the evidence whereby this. court may know its size, length, weight or whether sharp or blunt at the point, we will assume that the learned trial judge did not err in telling the jury as a matter of law that it was a deadly weapon.

Finding no reversible error in the record, we affirm the judgment.

Kennish, P. J., and Ferriss, J., concur.


author: FERRISS, J.

text:
    THE STATE v. CHARLES C., alias CHRISTOPHER C., TRAINER, Appellant.
    Division Two,
    February 7, 1911.
    BIGAMY: Belief that Spouse Had Been Divorced. Mere belief on the part of a defendant charged with bigamy, that his former wife had been divorced, when in fact she was still married, is no defense. But evidence of such belief is properly admitted' for the consideration of the jury in fixing the measure of punishment.
    In this case defedant’s belief was based upon a notice, published in a newspaper, of a divorce suit instituted by his wife, notifying him to appear on a certain day to plead to the bill, and if he did not appear the bill would be taken as confessed and judgment rendered against him as prayed, and he did not appear, and made no effort to ascertain whether the decree had been granted.
    Appeal from St. Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge.
    Affirmed.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for tbe State.
    (1) The authorities are conflicting as to whether an honest but erroneous belief in the existence of a valid decree of divorce will constitute a defense to a. prosecution for, bigamy. The greater weight of authority is to the effect that it will not. Davis v. Com., 13 Bush (Ky.) 318; State v. Armington, 25 Minn. 29; Squire v. State, 46 Ind. 459; R. S. 1909, sec. 4721. (2) The evidence was sufficient to sustain the verdict. The evidence shows that the appellant was married to Jeanette on the 7th day of October, 1908, and that his former wife, Altie, obtained her divorce from appellant in the Macon County (Illinois) Circuit Court, November 4, 1908; therefore appellant married Jeanette nearly one month prior to his former wife’s (Al-tie’s) obtaining her divorce from him. Moreover, the jury settled the conflict in the testimony. State v. Mathews, 202 Mo. 148; State v. Williams, 186 Mo. 128. The marriage was .legally proved by the production of a. certified copy of the records both of the former and second marriage. State v. Matlock, 70 Ia. 229.
   FERRISS, J.

The defendant was convicted in the circuit court of the city of St. Louis of bigamy, and sentenced to two years in the penitentiary.

The evidence for the State established the fact of the second marriage, and the further fact that at the time of such marriage defendant had a former wife living, undivorced.

The defense gave evidence tending to prove that the defendant had received a copy of a newspaper about September 1, 1908, which contained a notice of publication of a divorce suit instituted by his former wife, and which notified him to appear on the 5th day of October following to plead to the bill of divorce, and that if he failed to do so the' allegations of the bill would be taken as confessed and judgment would be rendered against him as prayed for in the bill of complaint. The defendant testified that he did not appear to answer in said suit; that, without further inquiry, he assumed and honestly believed that the decree of divorce was granted to his wife on said October 5th, and that, so believing, he married the second time on October 7, 1908.

The court gave instructions appropriate to the case. Among them was the following:

“2. The court further instructs you that the fact, if you find it to be a fact, that the defendant, at the time he married said Jeanette Flaven (if you find that he did marry her), believed that a diyorce had been granted to his said wife, Altie M. K. Trainer, is no defense in his behalf in this case, unless you find that on or before that date, to-wit, the 7th day of October, 1908, such divorce had actually been granted. The pendency of a suit for divorce in court is not sufficient, nor is the fact that the defendant believed such divorce had been granted, even if you find he did so believe, unless a decree of divorce had actually been granted.”

The record shows the following exceptions by defendant :

“The defendant excepts to the instructions as not fully declaring the law in the ease, and the defendant excepts to the court’s not giving an instruction declaring that if there was no criminal intent in this case shown by the evidence, then the jury should acquit the defendant.”

There was no brief filed, nor appearance in this court, for defendant.

The motion for a new trial set out various objections to the rulings of the court on the admission of evidence; to the instructions given; to the failure to instruct upon all the law of the case, and failure to admonish the circuit attorney for certain alleged prejudicial remarks to the jury.

An inspection of the record satisfies us that there is only one point in the motion for a new trial worthy of serious consideration, and that is the propriety of instruction numbered 2, set out above. The other objections are without merit.

The one point to be considered involves the question whether the honest belief of defendant, based upon the newspaper clipping that his former wife was divorced on October 5th, two days prior to his second marriage, was a defense. If it was, then the question whether he had such belief should have been submitted to the jury. If it was not a good defense, then the instruction complained of was not prejudicial.

The authorities are not entirely harmonious on this point. The following decisions present both sides of the proposition: Squire v. State, 46 Ind. 459; State v. Armington, 25 Minn. 29; Davis v. Com., 76 Ky. 318; Commonwealth v. Hayden, 163 Mass. 453; Watson v. State, 13 Tex. App. 76; Reg. v. Turner, 9 Cox C. C. 145; Dotson v. State, 62 Ala. 141.

The Missouri statute (R. S. 1909, sec. 4720) provides: “Every person having a husband or wife living, who shall marry another person, whether married or single, except in the cases specified in the next section, shall, on conviction, be adjudged guilty of bigamy. ’ ’

The exceptions in .the next section are (1) absence for seven years; (2) a divorce by competent authority; (3) former marriage declared void by competent authority; (4) where former marriage was contracted while under the age of legal consent; (5) when former husband or wife shall have been sentenced to the penitentiary for life.

None of these exceptions cover the case at bar. In view of the provisions of our statute, we feel constrained to hold that mere belief on the part of a defendant, charged with bigamy, that his former wife had been divorced, when in fact she was still his wife, at the time of his second marriage, is not a defense. This is in harmony with what we regard as the best authority, and is in line with sound principles of public policy: We have found no American case which justifies a defense based solely upon mere .belief by defendant that a divorce had been granted to his former wife, his only evidence being an order of publication which he found in a newspaper, and without any effort on his part to ascertain whether in fact the decree had been granted.

The instruction given by the trial court, applied to the facts in evidence, is in harmony 'with the views herein expressed.

We will add that the evidence of belief was properly admitted for the consideration of the jury in fixing the measure of punishment.

There being no prejudicial error in the record, the judgment is affirmed.

Kennish, P. J., and Brown, J., concur.


text:
    THE STATE v. OTHO SUTTON, Appellant.
    Division Two,
    February 7, 1911.
    1. APPEAL: Granting New Trial After Appeal Taken. Where defendant’s motions for a new trial and in arrest had been overruled, and he had been granted an appeal, the action of the trial court in setting aside the order granting ,an appeal and taking up and sustaining the motions, in the absence of appellant, and upon its own initiative, was without authority of law, and the case will he considered on appeal as though defendant had not been granted a new trial; and a subsequent conviction after that appeal had been ordered will he set aside.

      2. EVIDENCE: Unmarried Female. The fact that prosecutrix was an unmarried female, where there is no direct evidence specifically establishing that she was unmarried, may he inferred from the testimony, which unerringly enforces that conclusion,

      S, VERDICT: Carnal Knowledge: No Finding of Previous Chaste Character. A general verdict finding defendant “guilty as charged in the information” is a finding that prosecutrix was an unmarried female of previous chaste character, and is sufficient, where the information charges her to he such in the language of the statute.
    Appeal from Reynolds Circuit Court. — Row. Jos. J. Williams, Judge.
    Affirmed.

      J. R. Raney and Jamies Orchard for appellant.
    (1) The court erred in giving instruction one, for the reason that there was no testimony to base said instruction on; that is to say, the State must allege and prove that the prosecutrix was single and unmarried at the time the offense was committed, which in this case the State failed to prove, and there is no'evidence whatever, either direct or circumstantial, that the prosecutrix was unmarried, and when there is no evidence that she was unmarried at the time of the alleged carnal knowledge, a conviction will not be sustained.' State v. Wheeler, 108 Mo. 664; State v. Reed, 153 Mo. 451. (2) The court erred in admitting defendant’s motion in arrest of judgment for the reason that the verdict of the jury was not responsive to the issues in the ease. It is necessary to allege and prove that the prosecutrix was of previous chaste character, as well as single and unmarried, and that being true, the jury must find such facts, which in this case it failed to do. Under an indictment, or information, as in this case, charging carnal knowledge of an unmarried female of previous chaste character between the ages of fourteen and eighteen, a verdict which omits an essential element of the offense, to-wit, that the female was of previous chaste character, is insufficient as not being responsive to the charge. State v.' DeWitt, 186 Mo. 67. (3) The court erred in setting aside the order granting an appeal and its order overruling the defendant’s motion in arrest of judgment and for a new trial, and in ordering a new trial in this cause after an appeal had been taken. The appeal had been granted and defendant executed his bond and a supersedeas was ordered, and after that had been done the court, without the presence of the defendant, set aside all the orders above mentioned and ordered the defendant brought into court for a new trial, which was had at the next succeeding term of court. An appeal to the Supreme Court from the judgment of the circuit court invests the Supreme Court with, and deprives the circuit court of, jurisdiction over the cause. Burgess v. O’Donoughue, 90 Mo. 299; State ex rel. v. Anthony, 65 Mo. App-. 553. After an appeal, is taken in a cause, before the transcript is filed in the appellate court it must be regarded as being in the court to which the appeal is taken. Foster v. Rucker, 26 Mo. 494; Bank v. Allen. 68 Mo. 474. By the appeal, the lower court loses jurisdiction, and that jurisdiction cannot be regained unless it is handed back to it by the appellate court by reversing and remanding. Donnell v. Wright, 199 Mo. 313; State v. Gordon, 196 Mo. 196; Ex parte McAnally, 199 Mo. 512; State ex rel.. v. Gates, 143 Mo. 63; State v. Biesemeyer, 136 Mo. App. 668.

      Elliott W. Major, Attorney-General, and Jolm M. Dawson, Assistant Attorney-General,- for the State.
    (1) The information is properly verified, valid and sufficient. The second count upon which the appellant was convicted is- based upon Sec. 4472, R. S. 1909, and measures up to the standard of requirements as provided by the decisions of this court. Appellant makes no complaint' to the information. State v. McCullough, 171 Mo. 571; State v. Hunter, 171 Mo. 435; State v. Hall, 164 Mo. 528; State v. Knock, 142 Mo. 516; R. S. 1909, sec. 4472. (2) This verdict is a general verdict and is sufficient. State v. Dewitt, 186 Mo. 70; State v. Sartino, 216 Mo. 418; State v. Stork, 202 Mo. 221. (3) Appellant complains that there was no proof that the prosecuting attorney was single and unmarried at the time the offense was committed. In this appellant is in error. There was ample evidence to submit that question to the jury. State v. Pippin, 221 Mo. 460.
   BROWN, J.

The defendant was convicted in the circuit court of Reynolds county, on November 25,1909, of violating section 4472, Revised Statutes 1909, by having carnal knowledge of one Ida Speer, an unmarried female, between the ages of fourteen and eighteen years, of previous chaste character. His punishment was assessed at a fine of four hundred dollars, and after unavailing motions for a new trial and in arrest of judgment, he appeals to this court.

The record proper shows that on February 27, 1909, two days after this appeal was granted, and after defendant’s appeal bond had been approved, the trial court set aside its order granting the appeal, as well as its orders overruling the motions for new trial and in arrest, and granted defendant a new trial. A'second trial also resulted in the conviction of defendant, from which he has filed a second appeal in this court.

It is contended by the defendant that the unusual action of the circuit court in setting aside his appeal and granting him a new trial was without notice to him and without his consent, and as these orders appear to have been made by the court of its own motion, and do not recite any appearance or notice, it is fair to presume that defendant was absent and did not consent to their entry.

While circuit courts have power to set aside or modify their orders and judgments during the term at which such orders or judgments are entered, when the litigants are actually or constructively before the court, we believe it would be an unwarranted expansion of their discretion to permit them of their own motion to reopen cases in which their jurisdiction has been exhausted by granting appeals. [Ex parte McAnnally, 199 Mo. 512; State v. Biesemeyer, 136 Mo. App. 668.]

This court has heretofore refused to sanction the practice of trial courts in changing or modifying final judgments, even during the same term at which they were entered, without notice to the litigants whose interests are affected, hut who are no longer in court. [Ault v. Bradley, 191 Mo. 709.]

We therefore conclude that all the orders made in this cause subsequent to the granting of the appeal to this court on the 25th day of November, 1909, were illegal, and that this appeal should be considered as though defendant had not been granted a new trial.

The evidence of the prosecutrix, Ida Speer, is to the effect that defendant paid court to her at intervals from April until November, 1907; that by promising to marry her and protesting great affection on his part, he persuaded her to have sexual intercourse with him in June, 1907, and on several other occasions from that date until the month of November, 1907, when she became pregnant and nine months later was delivered of a child. A number of witnesses testified to the good reputation of the prosecutrix prior to the date she began going with defendant. Defendant, Sutton, denied the promise of marriage, but admitted the acts of sexual intercourse with the prosecutrix, and sought to prove that she was unchaste before he began having sexual intercourse with her. There was some evidence of improper conduct on her part with another man before defendant began keeping company with her.

Such additional evidence as is necessary to a full understanding of the case will be noted in connection with our decision on the assignments of error urged by defendant.

The first error assigned by defendant is that there was no evidence, direct or circumstantial, that the prosecutrix, Ida Speer, was unmarried at the time the alleged crime was committed. While there was no direct evidence that she whs unmarried, we find upon a careful reading of the record that the mother of prosecutrix testified that she was a daughter of William Speer and was therefore still known by his name. Witness Boyd referred to her as “a girl.” Prosecutrix testified to a proposition and contract of marriage, and to the further fact that the defendant was the first man who had ever had sexual intercourse with her. The defendant himself refers to her as “Miss Ida Speer,” whom he accompanied to church; so that we conclude there was abundance of indirect evidence to warrant 'the finding of the jury that she was unmarried, under the rulings of this court in the cases of State v. Reed, 153 Mo. 451, l. c. 453; and State v. Pipkin, 221 Mo. 453, l. c. 460.

Defendant also contends that the verdict of the jury is fatally defective, in that it contains no finding that the prosecutrix was of previous chaste character. The verdict of the jury is as follows:

“We the jury in the ease of State of Missouri against Otho Sutton, 'find the defendant, Otho Sutton, guilty, as he is charged in the second count of the information, and we fix his punishment for the same at a fine of four hundred dollars. G. W. Hodges, Foreman.”

We can clearly see that if the jury had attempted to recite any of the substantial charges in the information, then it would have been necessary to have inserted in their verdict a finding in favor of the State on all the substantial elements of the offense, including the previous chaste character of the prosecutrix; but where as in this case, the finding of the jury is general and refers to the count in the information upon which the defendant was tried, the presumption will be indulged that the jury considered all the elements of the charge, and found all the issues against the defendant. [State v. Cronin, 189 Mo. 663, l. c. 671; State v. Grossman, 214 Mo. 233, l. c. 243; State v. Stark, 202 Mo. 210, l. c. 221.]

The defendant proved by numerous witnesses that he possessed a good reputation prior to his arrest in this case, and attempted to prove that the prosecutrix was not of chaste character at the date of the alleged crime, and therefore not within the protection of the statute. The reputation of people is to some extent determined by the company they keep; and as defendant proved that his own reputation was good and that prior to the commission of this crime he accompanied .the prosecutrix in society on many occasions, he in a large measure was responsible for the opinions entertained by his neighbors that she likewise enjoyed a good reputation.

The finding of the jury that prosecutrix was of chaste character prior to the time that she first had sexual intercourse with defendant was supported by substantial evidence. •

Finding no reversible error in the case, the judgment of the trial court is affirmed.

Kennish, P. J., and Ferriss, J., concur.


text:
    THE STATE v. OTHO SUTTON, Appellant.
    Division Two,
    February 7, 1911.
    SETTING ASIDE ORDER OF APPEAL: Granting New Trial and Subsequent Conviction. The action of tlie trial court, after having overruled defendant’s motions for new trial and in arre'st and after' having made an order granting him an appeal and approving his bond, in setting aside said orders and again taking up the motions and sustaining them and granting him a new trial, upon its own initiative and in the absence of ‘defendant, was without authority of law and illegal; and upon a proper plea in bar being filed, a subsequent conviction and judgment thereafter should he set aside, and the former judgment considered as in force. [See State v. Sutton, page 244, this volume.]
    Appeal from Reynolds Circuit Court. — Hon. Jos. J. Williams, Judge.
    Reversed
   BROWN, J.

The defendant was convicted in the circuit court of Reynolds county on May 29, 1910, on an information charging him with having carnal knowledge of one Ida Speer, an unmarried female, between the ages of fourteen and eighteen years, of previous chaste character. The record proper shows that this was the.second conviction of the defendant in this case.

The defendant filed a plea in bar, reciting a prior conviction herein on the 25th day of November, 1909, and an appeal from the judgment on such conviction; and while the plea in bar is not preserved in the bill of exceptions, it is alleged by the defendant and admitted by the Attorney-General that this is the same case in which a judgment and conviction in the trial court, rendered on the 25th day of November, 1900', was affirmed by this court at its present term.

As will be seen by our first opinion herein filed, we have found that the action of the trial court in awarding defendant a new trial of its own motion after it had granted him an appeal to this court and had approved his appeal bond, was unauthorized and without warrant of law. Ve are of the opinion that all the proceedings in this cause had in the circuit court of Reynolds county after the granting of the first, appeal on the 25th day of November, 1909, are'illegal.

The judgment of the circuit court of Reynolds county, entered on the 31st day of May, 1910, adjudging the defendant guilty, and assessing his punishment at a fine of five hundred dollars, and three months’ imprisonment in the county jail, is therefore reversed.

Kennish, P. J., and Ferriss, J., concur.


author: KENNISH, P. J.

text:
    THE STATE v. DAVE WALKER, Appellant.
    Division Two,
    February 7, 1911.
    1. INSTRUCTION: Seduction: “Good Repute:” Not Defined. In the trial of a defendant for seduction,, under promise of marriage, of a female of good repute under twenty-one years of age, it is not necessary to define the words “good repute.” They are not words technical in their meaning, but words well understood and in common use.
    2. NEW TRIAL: Newly Discovered Evidence: No Affidavit of Witness. The defendant is not entitled to a new trial on the ground of the newly discovered evidence set out in the motion, if the motion is not supported by the affidavit of the witness who, it is alleged therein, would testify to the newly discovered facts upon which a new trial is asked.
    3. -: -: Affidavit of Others. Affidavits filed in which are set out specific acts of misconduct on the part of the prosecutrix, which were not included in the motion for a new trial as newly discovered evidence, cannot be considered by the court in its ruling on the motion.

      4. EVIDENCE: Seduction: Letters Before Promise of Marriage. In a seduction case, 'the relations of the defendant and prosecutrix, together with all the attendant circumstances, leading up to the promise of marriage and alleged seduction, are always competent evidence on hehalf of the' State. So that where defendant began to pay his attentions to prosecutrix, as a suitor, and afterwards a disagreement arose, .and he cea'sed his attentions for a period of about six months, and they were then renewed and continued for another period of about six months, during which time they became engaged to be married, and then another disagreement resulted in breaking the engagement, and she went to another town, endearing letters he wrote to her while there were competent evidence, though they were not then engaged to be married, and the letters had ceased before her return to his neighborhood, soon after which they became engaged again and that promise of marriage continued until he accomplished her undoing. .
    5. INSTRUCTION: Seduction: Corroboration of Promise to Marry: Preparation. An instruction telling the jury that prosecutrix’s testimony that defendant had promised to marry her before the seduction may be corroborated by “preparation which the prosecutrix may have made for marriage,” is not reversible error.
    Appeal from Benton Circuit Court. — Row. C. A. Denton, Judge.
    Affirmed.

      W. S. Jackson, Henry Lay and G. W. Barnett for appellant.
    (1) The court erred in refusing to grant the defendant a new trial, for the reason that the law was not properly declared in this case as to what it takes to constitute good repute. The question of paramount importance in a case of this kind is, was the prosecutrix of good repute at the time of the commission of the alleged offense? And the answer is what people of her acquaintance generally say of her in this regard; that is, the general credit for chastity which she hears among her neighbors and acquaintances. State v. Fogg, 206 Mo. 713; State v. Sharpe, 132 Mo. 173; State v. Bryan, 34 Kan. 63. If the question of good repute is of paramount importance, then it was the duty of the court to explain to the jury what this important matter is. Grood repute should have been defined to the jury. They should not have been left to grope in the dark or'guess at what was meant. (2) The court erred in refusing to grant a new trial on account of newly discovered evidence furnished in the affidavits of witnesses, which would have not only disproved the allegations in the indictment that the prosecutrix was of good repute, but would have affirmatively established the fact that she was not of good repute. This evidence was not cumulative. No witness in the trial had testified as to any acts of lewd conduct on 'the part of the prosecutrix. There was no lack of diligence shown in this case. A motion for a new trial is improperly overruled in case of newly discovered evidence of sexual intercourse with other men, previous to tbe alleged, seduction, which was the ground of the motion. Such evidence was clearly admissible, and where the defendant is guilty of no laches, only becoming aware of such evidence after the trial, the motion should be sustained. State v. Wheeler, 94 Mo. 252.; State v. Curtis, 77 Mo. 267; State v. Bailey, 94 Mo. 311; State v. Moberly, 121 Mo. 604; State v. Morgan, 96 Mo. App. 343; Meisch v. Sippy, 102 Mo. App. 559'. This character of evidence, namely, previous cases of illicit intercourse with other men by prosecutrix, was permissible to negative good repute. State v. Patterson, 88 Mo. 88; State v. Sharpe, 132 Mo. 173. When one of the matters set out in the motion for a new trial is the discovery of new and material evidence that would probably change the result, it is good practice to grant leave to file affidavits in support and counter-affidavits, within a given time, which may be beyond four days. Hesse v. Seyp, 88 Mo.'App. 66. (3) The court erred in permitting the State to prove previous contracts or agreements of marriage between these parties, which had been abandoned and broken off, for the reason that they are too remote and have no connection with the alleged seduction. They could constitute no inducement for the prosecutrix to yield to the solicitations of defendant, but even if it was proper to permit the prosecutrix to testify to the previous abandoned engagements, yet it was highly improper and prejudicial to admit in evidence the long correspondence between the prosecutrix and defendant in the year 1907, while she was at Lamente, two years prior to the engagement under which the alleged seduction was accomplished, this engagement that existed while prosecutrix was at Lamonte having been long abandone’d by mutual consent. (4) The court erred in refusing instruction three,- asked by the defendant, to the effect that the prosecutrix’s testimony must be strongly corroborated by other testimony, sufficient to overcome that of the defendant and the legal presumption of his innocence. This instruction properly declared the law. State v. Davis, 141 Mo. 525. And this law is not declared in any of the other instructions. (5) The court erred in giving instruction two on behalf of the State, as it improperly singles out specific things, and declares as a matter of law that they constitute corroboration. This instruction points out thrée things, any one of which in itself, the court says, is sufficient to confirm her testimony, and one is “or by preparation which the prosecutrix may have made for marriage, if any.” This instruction does not tell the jury that that preparation for marriage is a circumstance which the jury may consider, along with all the other circumstances tending to corroborate her testimony, but it is only a circumstance to be considered with other circumstances, and it was a palpable error for the court to itemize these various circumstances, and tell the jury that any one of them constitutes a confirmation of the testimony of the prosecutrix. Had the jury been told that the prosecutrix’s testimony might be corroborated from facts and circumstances, including preparations for marriage, it might not have-been so objectionable. But a careful reading of this instruction will show that it declares that “the promise must be confirmed, either by direct evidence as to the promise, or by preparation which the prosecutrix may have made for- marriage, or by facts and circumstances such as usually attend the marriage engagement. ’ ’

      Elliott W. Major, Attorney-General, and John M. Damson, Assistant Attorney-General, for the State.
    (1) The court committed no error in admitting all of the evidence of both engagements, as it was proper for the jury to know all the relations between the parties and all the facts connected with the promise of marriage. 11 Cyc. Ev., 694; 12 Current Law, p. 1819. All the relations of the parties are material and relevant. Armstrong v.. People, 70- N. T. 38. Letters from the appellant to the complaining witness are admissible. State v. Bell, 79 la. 117. The conduct of the parties prior to the alleged seduction and their relations to each other are always competent. Underhill on Crim. Ev., pp. 665, 666; State v. Curran, 51 Ia. 112; Bracken v. State, 111 Ala. 68. The conduct and relations of the parties are relevant to show that consent was obtained by promise and inducements, and what they consisted of. (2) The jury may find the fact of seduction upon the uncorroborated testimony of the prosecutrix, but the promise of marriage must be corroborated by proof of circumstances usually attending an engagement of marriage. State v. Brass-field, 81 Mo. 152; Rice on Crim. Ev., secs. 550, 551. Circumstantial evidence 'as to corroborating the promise is sufficient. Wharton’s Crim. Ev., sec. 442. It is not necessary that the promise should be a valid and binding one between the parties; it is enough that a promise is made which is a consideration for, or inducement to, the act. Rice on Crim. Ev., p. 879, sec. 556; Kenyon v; People, 26 N. T. 203; Boyce v. People, 55 N. Y. 644. (3) To corroborate the woman’s evidence it may be shown that the demeanor of the parties was that of an engaged couple. The fact that the woman had made preparations for the celebration of tjie marriage is relevant. Underhill on Crim. Ev., sec. 388, p. 666. The character and intelligence of the woman must be considered. What might be insufficient to overcome or deceive the mind of a mature and educated woman might succeed in the case of a young and ignorant girl. Underhill on Crim. Ev., sec. 387, p. 665; State v. Sharp, 132 Mo. 165; People v. Kane, 14 Abb. P'r. (N. Y.) 15; Carter v. State, 79 Ala. 14; Phillips v. State, 108 Ind. 406; Woodward v. State, 5 Ga. App. 447; State v. Stollev, 121 la. 111. There was an abundance of evidence tending to corroborate the prosecutrix to take the case to the jury, whose province it was to pass upon its weight. State v. Bent, 170 Mo. 406. (4) Instruction 3, refused, was properly refused because instruction 2, given, properly defined “ corroboration.” Where all the propositions of law arising on the facts developed in evidence are covered by the instructions of the court, there is no error in refusing those asked by the appellant, though they may be correct. State v. Atchley, 186 Mo. 174; State v. Crittenden, 191 Mo. 17; State v. Barrington, 198 Mo. 23. (5) It is within the discretion of the trial court to refuse a new trial on the ground of newly discovered evidence, where such evidence would not change the result upon retrial. State v. Einn, 199 Mo. 597. If Carrico did-those acts he would have been the only person to testify to it. It is not in reason for appellant to produce the kind of hearsay evidence mentioned in the Swerngin affidavits. Where the new evidence would not have changed the result, there is no error in refusing a new trial. State v. Estis, 209 Mo. 288; State v. Speritus, 191 Mo. 24; State v. Church, 199 Mo. 609.
   KENNISH, P. J.

The defendant was tried and convicted in the circuit court of Benton county, upon an information charging the offense of the seduction, under promise of marriage, of one Maude C. Yeager, an unmarried female of good repute, under the age of twenty-one years. His punishment was assessed at imprisonment in the penitentiary for a term of two years and, from the judgment pronounced, he appealed to this court.

At the trial, the evidence for the State tended to prove the following facts:

That Maude C. Yeager, the prosecutrix, was an unmarried female of good repute, under twenty-one years of age, and that she had resided in Benton county since her infancy; that when she was of tender years her mother died, and she was brought up by her relatives, having made her permanent home with her half-sister after she was ten years of age.

She had known the defendant, who was about eight years her senior, since childhood. In the year 1905 the defendant began waiting on her, as a suitor, and in the year 1906 they became engaged to be married. This engagement, because of a disagreement, was broken, and in January, 1907, the prosecutrix went to the town of Lamonte, not far distant from her home, where she was employed as a domestic. She remained there the most of the time for about two years. While at Lamonte the defendant corresponded with her, and his letters, couched in the most endearing terms, were introduced in evidence. . Because of a second disagreement, the correspondence was discontinued. The prosecutrix returned to her home at the town of Edmunson in July, 1908, and thereupon the defendant resumed his attentions to her.

On the night of the 15th of February, 1909, the prosecutrix attended a masked ball, in the company of another young man who had been paying her some attention since her return from Lamonte. The defendant was present at the ball .and requested a private talk with the prosecutrix, during which he told her of his intentions to get married, and of his love for her. The prosecutrix then promised to cease keeping company with the young man with whom she had attended ¡the ball that evening and, from that time on, she kept company regularly with the defendant, and with no other suitor. The defendant thereafter constantly waited upon her, calling at her home two or three times a week, and taking her to public gatherings, as is usual in such cases, until July 3, 1909.

On Sunday night, April 4, 1909, while calling upon the prosecutrix at her home, the defendant promised to marry her, and the promise was accepted. Thereafter, on the 18th day of April, 1909, under the promise of marriage theretofore made^ and at defendant’s solicitations, the-prosecutrix yielded to him, and as a result of the intercourse which followed she became pregnant, of which fact she informed the defendant about the first of July following.

On the third day of July the defendant took her to the town of Cole Camp, near by, where she had secured employment. When she informed the defendant of her condition, she urged the necessity of their early marriage, and he said he would begin to build a house the next week, and that she need not “worry about that at all.” While at Cole Camp, not hearing from the defendant, she wrote several times and sought to communicate with him by telephone, but failed to reach him or receive any response to her letters. On the thirteenth day of August, 1909', the defendant married another woman.

The prosecutrix testified that she had made preparation to get married, such as buying some furniture, and in this she was corroborated by other testimony.

The defendant was a witness in his own behalf, and denied that he had ever promised to marry the prosecuting witness. Evidence was also introduced tending to prove that the prosecuting witness was not of good repute, and that she was over twenty-one years of age at the time of the alleged offense.

I. Error is assigned in the failure of the court to give an instruction to the jury defining “good repute,” as an element of the offense charged.

A separate instruction was not given on the subject of good repute, neither was' such an instruction asked by the defendant. In the general instruction numbered 1, given by the court of its own motion, the jury were instructed that to authorize a conviction, 'they must believe and find “that Maude O. Yeager was, at the time of the seduction, if any, a woman of good repute in the community in which she lived and among those who knew her.”

The good repute of the prosecutrix is clearly an essential element of the crime charged in this case; an element necessary to be found by the jury before they were authorized to return a verdict of guilty against the defendant. It is provided by section 5231, Revised Statutes 1909, that: “The court must instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in giving their verdict.”

It will be observed that the statute requires instructions only upon such questions of law arising in the case as are necessary for the information of the jury.

The words, “good repute,” as used in the evidence, and as set forth in instruction numbered 1, as an element of the offense charged, could not have been misunderstood by the jury. Witnesses on the one side testified that the reputation of the prosecutrix for virtue and chastity was good, while those on the other side said it was bad. These words are not technical in their meaning’, but are words well understood and in common use. The rule applicable in such cases, as concisely stated in the thirteenth syllabus of the case of State v. Sattley, 131 Mo. 464, is: “Ordinary plain English words used in instructions are not required to he defined.” [See, also, State v. Gregory, 170 Mo. 598; 12 Cyc. 613.]

As to the issue of the good repute of the prosecutrix, instruction numbered 1 in this case is identical With an instruction given in the case of State v. Meals, 184 Mo. 244, and this court, speaking of the instruction in that case, l. c. 256, said that it “carefully, fully and expressly requires the jury to find every essential fact necessary to constitute the offense defined by the statute.” The same instruction given in the Meals case is referred to with approval by this court in the later case of State v. Fogg, 206 Mo. l. c. 715. The. prosecutions in both the Meals and Fogg cases were under the same statute upon which the information was based in the case before us.

We, therefore, hold that appellant’s first assignment of error is without merit.

II. It is urged that the court erred in refusing to grant a new trial on the ground of newly-discovered evidence.

This complaint is based upon the eighth ground of the motion for a new trial, in which' it is alleged that the prosecutrix, prior to the date of the offense charged, was guilty of specific acts of unchastity with one John Carrico, at the town of Lamonte. It is fnrther alleged that the defendant was unable to obtain the affidavit of the said Carrico in time to be filed with the motion for a new trial, but that defendant believed he could procure such affidavit of the said Carrico to the facts stated, in time to be filed in support of the motion at the March term, 1910, of that court.

The cause was continued upon the motion for a new trial until the March term, but the defendant failed to file the affidavit of Carrico in support of the alleged newly-discovered evidence.

Affidavits were filed in which the affiants purported to state what Carrico had said to them relative to the- alleged misconduct of the prosecutrix with him, and other affidavits were filed as to specific acts of misconduct by the prosecutrix, which were not included as newly-discovered evidence in the motion for a new trial. It is needless to discuss, the affidavits last mentioned, for the reason that if the facts contained therein were not included in the motion for a new trial, then manifestly the affidavits could not be considered by the court in its ruling upon the motion.

The defendant was not entitled to a new trial on the ground of the newly-discovered evidence set out in the motion, because the motion was not supported by the affidavit of the witness Carrico, who it was alleged would testify to the newly-discovered facts upon which a new trial was asked.

In the case of State v. McCollough, 171 Mo. l. c. 575, this court said: “The contention' that is most earnestly urged, is tbe error of the court in refusing to grant a new trial upon the [ground of] newly-discovered evidence. As to this contention, the motion for a new trial is only supported by the affidavit of the defendant. It fails in an essential particular to conform with the long and well-settled rule announced by this court, in this, that the affidavits of the witnesses-who it is alleged will testify to the newly-discovered facts, must ‘accompany the motion for a new trial.’ ” [State v. Bowman, 161 Mo. l. c. 91.] .

III. It is disclosed by the evidence that defendant began paying his attentions to the prosecutrix, as a suitor, in 1905. That after going with her for about six months, a disagreement caused him to cease his attentions to her for about an equal period. That he then resumed his attentions for about six months, during which time they became engaged to be married. That soon thereafter another disagreement resulted in breaking the engagement and another cessation of their association, until January, 1907. At the date last mentioned, prosecutrix went to Lamonte, about fifty miles distant, at which place she had secured employment, and for about six months thereafter the defendant corresponded with her, writing letters which would lead her to believe that he 'entertained a deep affection for her. These letters did not, in any manner, refer to a promise of marriage. They were introduced in evidence at the trial, over the objection of the defendant, and the ruling of the court, in so admitting them, is assigned as error.

From this statement it appears that at the time of this correspondence no engagement existed, and although the correspondence had ceased for some time before the prosecutrix returned to her home, the defendant, immediately upon her return, renewed his attentions to her and, shortly thereafter, his promise of marriage, under which he accomplished her undoing.

It is the recognized law, in seduction cases, that the relations of the defendant and the prosecutrix, together with all the attending circumstances leading up to the promise of marriage and alleged seduction, are always competent evidence on behalf of the State. We know of no principle of law, nor has our attention been called to any authority, which renders these communciations by which the defendant sought to win the heart and love of the prosecutrix, inadmissible against him on a trial for seduction. His attentions to her before she went to Lamonte were admitted without objection. "Why were not the letters admissible for the same reason? We think they were admissible and that the court properly so ruled. [Faulkner v. State, 109 S. W. (Tex.) 199.],

A case of the character of that now before us is not to be disposed of on the principles of law applicable to the rights of parties to an ordinary contract, such as an abandonment by mutual consent, or the merger of all antecedent negotiations into the terms of the contract. The abiding character of the love and confidence implied in an engagement of marriage is a fact which is fundamental in human nature and which does not readily yield to disagreements or even broken engagements, a fact of which the defendant in this case was well aware and quick to take advantage.

IV. Appellant’s fourth and fifth assignments of error may properly be treated together. In the fourth assignment, complaint is made of the ruling of the court in refusing to give appellant’s instruction upon the subject of the corroboration of the evidence of the prosecutrix, required by law, as to the promise of marriage, and the fifth assignment is based upon alleged error in the giving of instruction numbered 2 by the court, of its own motion, upon the same subject.

If instruction numbered 2 is a correct declaration of the law upon the subject of the necessary corroboration of the prosecutrix, then it is well settled that the court' was not in error in refusing an instruction, upon the same subject, asked by the defendant. [State v. Fogg, 206 Mo. 696; State v. Sassaman, 214 Mo. 695; State v. Wooley, 215 Mo. 620.]

It is not necessary to set out the whole of said instruction numbered 2. The part of which complaint is made is the following: “The jury are further instructed that they cannot find that there was a promise of marriage upon the evidence'of Mande Yeager alone; but under the law her evidence as to the promise of marriage must be corroborated; that is, confirmed, either by direct and positive evidence, as to the promise of marriage, or by preparation which the prosecutrix may have made for marriage, if any, or by facts and circumstances which usually attend the engagement of marriage.” The particular clause in that part of the instruction quoted, of which appellant specifically complains, is “or by preparation which the prosecutrix may have made for marriage, if any.” It is contended that if the corroboration in the clause complained of be sufficient under the statute, then it is always within the power of the prosecutrix, by self-serving acts, to supply the necessary corroboration of her own testimony as to the promise of marriage.

In the recent ease of State v. Fogg, 206 Mo. 696, a case cited by appellant, this court had under consideration, as in the case at bar, a complaint of the appellant that the court erred in failing to give an instruction, at the request of the defendant, upon the subject of the corroboration of the prosecutrix, neces-. sary under the law, as to the promise of marriage. Passing upon the question thus before it, this court,at page 709, said: “In our opinion there was no error in the refusal of this instruction. The subject of the necessity of corroboration of the prosecutrix in order to warrant a conviction was sufficiently covered by instruction numbered 4, in which the court told the jury that ‘you cannot find that the promise of marriage was made by the defendant to the prosecutrix on the testimony of the prosecutrix alone; to warrant you in finding that a promise of marriage was made by the defendant, the testimony of the prosecutrix as to such promise of marriage must be corroborated by other and independent testimony. This corroboration may be by the proof of statements of defendant in relation thereto, if any were made; preparation which the prosecutrix may have made for marriage, if any, or by the continuous courtship for such a period of time as in the course of ordinary affairs an engagement of marriage between the defendant and prosecutrix would be presumed to exist. ’ •’ ’ The court further calls attention in that case to the fact that another instruction told the jury that, “to support the charge of such promise of marriage, it is necessary that the evidence of the prosecutrix be supported by that of the witnesses or by corroboration of acts or circumstances which convince your minds of tlie truth of the testimony in that respect.” It will be found that instruction numbered 1, in the ease in hand, contains a counterpart of that referred to by the court in the Fogg case, as being a part of instruction numbered 7.

As this court has thus so recently passed upon and approved an instruction, of which the instruction in this case, upon the point under consideration, is an exact copy, we are not disposed to enter upon a discussion as to whether or not it is theoretically a correct exposition of the law upon the subject of the corroboration of the prosecutrix.

Finding no prejudicial error in the record, the judgment should be affirmed. It is so ordered.

Ferriss, J., concurs; Brown, J., concurs in the.result.