author: BOND, C. PER CURIAM.

text:
    THE STATE v. G. H. BARBOUR, Appellant.
    Division Two,
    May 23, 1911.
    1. RAPE: Non-Consent: Resistance. Non-consent is proven in a rape case where there is evidence that the woman made all practicable resistance to the ravisher. The resistance to be expected depends much upon the physical strength of the woman, the circumstances, and her knowledge of the defendant’s reputation, for violence and immorality.
    2. -: -: Fear. A consent induced by a fear of personal violence is not consent.
    3. -: -¡ Question for Jury. A verdict based on substantial evidence will not be vacated on appeal on the ground of contradictory testimony. Three or four months before her baby was born, the defendant, who was a practicing physician, made an improper proposal to the young wife, which she immediately communicated to her husband at work in the field. As the time of her confinement approached she objected to being attended by defendant, but on the advice of her mother, who considered him skillful in such cases, she consented that he might attend her. Three weeks after the birth of the child her husband, going on a long journey in taking the nurse to her home, met defendant in the road, on his way to visit professionally another family who lived three miles from the home of prosecutrix. Defendant visited that family, then drove in the roundabout way that led by the house of prosecutrix. When he arrived there he called a small boy to hold his team, and went in the house where she was sitting in a rocking chair, holding her baby. She had at no time since its birth been able to sit up all day. He told her what he “wanted” and “would have.” She knew his reputation for immorality and violence, and he knew of her bodily weakness. He took the baby from her, put it upon the bed, and threw his arms about her and drew her upon himself; he forbade her to make any outcry; he dragged her from the chair, and when, pulling away from him she escaped into another room, he dragged her back, and, against her pleadings to quit, pulled her down on' a chair again, and as she would push her clothes down on one side he would pull them up on the other, and against her pushing and pulling, by his superior strength he pulled her down upon himself as he sat in the chair, penetrated her, and left immediately afterwards He testified that the copulation was by her consent; that she said it was not right, but did not resist. The nearest neighbor lived a quarter of a mile away. She testified that the reason she made no outcry was because she was afraid of him. Her husband returned in two hours, found her in a state of nervous collapse and great anguish, and was immediately informed of defendant’s conduct. Held, that there was substantial evidence -that the prosecutrix made all the resistance of which she was capable in her weakened and terrorized condition, and did not consent to the carnal act, but that it was performed with force, and the court properly submitted the case to the jury.
    4. Manner of Performance; No Outcry. No inference of a conclusive nature can be drawn from the absence of an outcry by the prosecutrix, nor from the fact that the carnal act upon the small and weakened woman was performed by defendant by pulling her down on himself as he sat upon a chair. At most they give rise to a disputable presumption, which the jury are entitled to draw or not to draw as they see fit under the circumstances in evidence.
    Appeal from Gentry Circuit Court. — Hon. Wm. C. Ellison, Judge.
    Affirmed.

      Cook, Cummins & Dawson for appellant.
    (1) Under the law in this State before a conviction for rape can be had, the evidence must show the fact of non-consent, and the exercise of all the means of resistance which, under the circumstances of the case and the condition of the mental faculties of the prosecutrix were within her power to make. State v. Cunningham, 100 Mo. 382; 10 Ency. Ev. 584. The resistance must be up to the point of being overpowered by actual force, or of inability from loss of strength to longer resist, or there must be duress or fear of death. State v. Patrick, 107 Mo. 171; -Brown v. State, 7 Am. and Eng. Ann. Cas. 258. (2) An outcry and resistance are important elements of evidence, and a want of these circumstances, where they may be reasonably expected, go far to disprove the charge of rape. State v. Cunningham, 100 Mo. 382; Champayne v. Homey, 189 Mo. 723. The method of the signal act, as shown by the evidence in this case, can scarcely be credited unless' consent were one of the ingredients. State v. Burgdorf, 53 Mo. 65; State v. Wilson, 91 Mo. 410. The evidence, as a whole, tends strongly to show that this is one of those cases where there has been a mutual gratification of desire and passions. Mere copulation coupled with passive acquiescence is not rape. 33 Cyc. 1424; State v. Burgdorf, 53 Mo. 65.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    It will be observed by the court that it is not claimed by counsel for appellant that there is no evidence to support the verdict, but that the verdict is only against the law and the evidence. In the ease of State v. Espenschied, 212 Mo. 223, the court said: “It is only in case there is no substantial evidence to support the verdict that it will be set aside on such ground. The State’s evidence made out a strong case of the crime of rape against appellant. It went much further than making a mere prima facie case, as is required. State v. Urspruch, 191 Mo. 47; State v. Kipey, 229 Mo. 666; State v. Dilts, 191 Mo. 676-. The outcry is no necessary essential of the proof of the crime of ■rape. The failure to make it is only a fact for the consideration of the jury in weighing- the evidence in such prosecutions. State v. Miller, 191 Mo. 612. The trial court quite properly submitted this .cause to the jury. The verdict in this cause met the approval of that learned and just trial court who saw the witnesses and heard their testimony. State v. Ripey, 229 Mo. 670; State v. Payne, 194 Mo. 452.
   BOND, C.

— The defendant was convicted of rape in the circuit court of Gentry county and sentenced to five years in the penitentiary.

On the trial, the evidence showed that defendant was a practicing physician in King City, Gentry county; that he had resided there for several years after his release from the penitentiary, a few days before serving a full term of five years, to which he had been sentenced for manslaughter. The evidence showed that he had known the prosecutrix for a number of years, having been the family physician, in her mother’s family; that the prosecutrix, Mrs. Anna Brook, was married in her 18th year, about July 19, 1908; that in the spring of 1909, when the prosecutrix was advanced in pregnancy, the defendant made an improper proposal to her, which she immediately communicated to her husband in the field where he was at work; that as the time of her confinement approached, the question was discussed between the prosecutrix and her mother as to who should be called to attend her; that.the mother suggested the defendant; that prosecutrix, Mrs. Anna Brook, objected; that finally her mother said to her, “He (the defendant) is good in eases of that land; send for him then, but don’t send for him any more;” that in pursuance of this .advice of her mother, Mrs. Brook at the time of her confinement, on the 12th day of July, 1909, was attended by the defendant, and delivered of a child, and was left in the care and nursing of her aunt, who agreed to stay with Mrs. Brook and her husband until she was recovered from the effects of childbirth; that about three weeks after that event, to-wit, on the 3d day of August, 1909, the occurrence for which the present indictment was found against the defendant took place, according to the evidence for the State, in the following manner: On said day Mrs. Brook’s husband had left their home early in the morning to take the sick nurse back to her home; that he left his wife attended only by a little boy (his nephew), about eleven years old; that he was required to go about ten miles to reach the home of the sick nurse; that after he had gone several miles he met the defendant, who was driving a double team for the purpose of making a visit to a Mrs. Snapp. The evidence tended to show that after the defendant had made the visit in question, he went out of his way to return by the farm of Mr. Brook, husband of the prosecutrix; that he arrived there about half past nine o’clock, and observing the boy at the door of the house, called him and placed him in his buggy to hold his team, at a distance of about sixty feet from the front door; that he got a drink of water in the yard and then went in the house, where he found Mrs. Anna Brook, the prosecutrix, sitting, in a rocking chair with her baby in her arms; that this-was the third time she had been able to get out of bed, and at no time had she been able to sit up a whole day; that after the doctor entered the room, he approached her and said, “Let me.lift the baby and see if he has grown any;” that he then got up with the baby and went to the door and looked up and down the road, north and south; that he came away from the door and laid the baby on the bed; that he then came to where the prosecutrix was sitting, and stood by and said, “Come over here,” and she said, “No,” and again said, “No;” that he then grabbed hold of her arm and took her out of the rocking chair; that she then got loose from him and kept “begging him to quit,” and pulled and jerked and got loose from him and started to walk away and got to the middle door, when he grabbed hold of her and says, “Come in here,” and sbe said, “No,” and he pulled her inside of the door; that he grabbed both of her arms, and she pushed and pulled and got away from him and went back in the room where the baby was; whereupon he stood back between her and the door, and he took the chair from against the door and set it back of the door and shoved the door around part, way shut; and he said, “Come over here,” and she said, “No,” and he came over and grabbed her; that he took her from there to the place where the chair was; that she was trying to get loose from him and begging him to leave her alone; that he fell down on the chair and got down on the chair and pulled her down on him; that during the struggle he was pulling and trying to get her clothes up one side and the other. The prosecutrix then stated that he had intercourse with her, and, in referring to her resistance, testified as follows:

“Q. Well, what did you do? A. I put forth all the strength I had. I tried to get loose from him, and begged him to leave me alone, and tried to get loose from him, and I pushed. • . .”

That she was weak and seared; that her baby was .only three weeks old; that she weighed only ninety-seven pounds; that defendant tore her undershirt and pants; and when he had accomplished his purpose, let go of her and said, “I guess I had better rim;” that he picked up his hat, went out of the house and drove off.

The evidence showed Mrs. Brook was still suffering from the discharge resulting from childbirth; that about two hours thereafter her husband came home, and she told him of what had happened as quick as he got in the house. The prosecutrix testified that she made no greater outcry because she was afraid the doctor would harm her. She was asked why she didn’t call the little boy who was sitting in the buggy in the front yard. “A. Because I was afraid to. Q. Because you were afraid to ? A. Yes, sir. Q. Why were you afraid to? A. Prom what I had heard of Dr. Barbour, I was afraid to.” Testifying further, on cross-examination, the prosecutrix stated, as follows: “Now, why . . . Again, now, you say that you didn’t call the little boy because you were afraid to? A. Yes, sir; I was afraid to. Q. Who were your nearest neighbors? A. Mr. Ed. Taylor’s. Q. How far did he live from your house? A. About a quarter of a mile, I think. Q. A quarter of a mile? A. Yes, sir. Q. Why didn’t you — why didn’t you call to that little boy and tell him to drive as fast as possible to Mr. Taylor’s and get help for you? A. Because I was afraid of Dr. Barbour.” Adding further, “A. Yes, sir. He told me — he would say ‘Hush’ and, ‘Be still.’ Q. Now, why didn’t you make further outcry when he told you that? A. Because I was afraid of him. Q. Because you was afraid of him? A. Yes, sir; I was so scared. Q. What was the tone of his voice when he spoke to you about that, as to being harsh or pleasant? A. It was harsh.”

The husband of the prosecutrix testified that he got back home about half past twelve o’clock, when his wife informed him. at once of what had happened. His testimony being, to-wit: “A. She informed me that Barbour had been out there and forced her. Q. And done what? A. And forced her. Q. What was her condition' — mental condition — at that time, as to being cheerful of otherwise? A. She was just as nervous as she could be? Q. Well? A. I stepped in a room and picked up a paper, and stepped back in, and she laid down on the floor; and I said, ‘Dear, what is the matter with you.’ t found her as nervous as she could be, and all broke down, and crying and going on in anguish. Q. In anguish? She informed you then, yon say, of what had occurred? A. Yes, sir.” He testified further: “Q. Tell the court and jury about the physical condition your wife was in at that time, as to being strong or otherwise? A. She hadn’t been up all day at all since the baby was born. Q. Since the baby was born? A. No, sir.”

The sick nurse testified for the State that Mrs. Brook at the time in question, 3d day of August, 1909, was still suffering from functional disorders, to-wit: “Q. Explain it to the jury now. Explain that to the jury- — -what'the condition was — the jury here — these twelve men. - Tell the jury about it, Mrs. Bolen. A. I say she was in a weakened condition — she still was. Q. Well, was she or was she not still wasting? A. Yes, sir, she was; if you must know,’she was.”

The prosecuting attorney testified that three days after this occurrence he met the defendant, Dr. Barbour, in company with Dr. McCaslin; “and Dr. Barbour spoke up, and he says, ‘Was there a man up there to get a warrant out for me, the other day?’ I looked him in the face, and says, ‘Yes, sir.’ Hé says, ‘What was the charge, rape?’ I says, ‘Yes, sir.’ Q. Well, now, what effect and what was the demeanor and what effect did it appear to have on him? A. Well, he turned very pale, and seemed very much agitated about the matter, and he says, ‘I don’t see how anybody could bring an accusation like that,’ or ‘what they would bring it for.’ He says, ‘I have got no money.’ He says, ‘They couldn’t make any money out of me.’ Q. Was that the extent of the talk? A. That was the extent of it — the size of it. Q. You may ask him. A. I left as soon as I could, yes.’’

The State introduced three witnesses who testified they had known G. H. Barbour for periods ranging up to eighteen years, and that his general reputation for morality was bad.

The defendant testified on his own behalf, that he had been a practicing physician in Gentry county since the spring of 1882; that he had known Mrs. Brook six or seven years; that he attended her at the time of her confinement in July, 1900; that on August 3, 1909, he had left King City to pay a visit to the residence of Mr. Snapp, who had phoned him that his wife, was in a very bad condition; that on his trip he met. Mr. Brook in a buggy with a lady; that after completing his visit to Mrs-. Snapp, he stopped at Mr. Brook’s on his way back to King City, although Mr. Brook’s residence was not on the direct road from Mr. Snapp’s; that the first 'person he saw was a little'boy, Edwin Hall; that he inquired of the little boy, “Was Art got back?” (meaning the husband of Mrs. Brook); that his purpose in making that inquiry was to collect a balance due him by Mr. Brook of five dollars; that he had driven up to within forty or sixty feet of Mr. Brook’s house; that after alighting from his buggy and going to the well in the yard to get a drink of water, he spoke to Mrs. Brook whom he saw sitting in a rocking chair in the house; that after some conversation with her, the act of copulation took place. He was asked, “Q. What objection did she make? A. Oh, she-she probably said it wasn’t; that it wasn’t right,, or something of that kind; and I think that after —she made some, of course, little talk about that it wasn’t right to do that. I don’t remember just exactly the language that she used. But she— Q. Do you remember whether she used the expression, ‘quit,’ or something of that kind? A. Well, I wouldn’t dispute that — she might have said that — -might have said that. I wouldn’t undertake to dispute that.” He testified further: “Q. Where did you take hold of her,'D‘oc? A. I think I put my right arm around her waist, the way I remember it. Q. Tour right arm around her waist? A. She was leaning— By this time we were getting mixed up considerable. I just took hold of her. . . . Q. Tou aim for this jury to understand that she got on your lap with her own free will and accord? A. No, sir; I -wouldn’t say it was entirely with her own free will, hut there was no resistance to — no struggle in the matter . . . . Q. She was naturally very weak, wasn’t she? A. She wasn’t very strong, no, sir.”

On his appeal to this court, the defendant makes only the following assignments of error:

1st. The verdict is against the law.

2d. The verdict is against the evidence.

3d. The verdict was the result of passion and prejudice on the part of the jury.

I. The propositions advanced in the brief for appellant in support of the errors assigned by him relate; first, to the necessity of showing non-consent; second, to the necessity of proving that all practicable resistance was made; third, the evidential force of a failure to make a great outcry; and, fourth, the inference arising from the manner of performing the sexual act.

It is apparent, therefore, that it is only necessary for us to announce the correct legal doctrine on these points and its applicability to the evidence given for the State, for if there was substantial evidence of the guilt of. the defendant when tested by these rules, then the finding of the jury is conclusive.

It will be seen at once that appellant’s first and second points are correlated, that is, non-consent is proven whenever there is proof that the woman made all practicable resistance to the ravisher. This has been well stated by Black, J., in State v. Cunningham, 100 Mo. l. c. 391, as follows: “The State must, of course, show force used on the part of the defendant, and that the woman did not consent. These questions of fact are interwoven, and the one is somewhat dependent upon the other. "Whether the woman did or did not consent to the act is, in most cases, to be inferred from the surrounding circumstances; and, hence, resistance or want of resistance becomes an important element in the evidence. So, the resistance to be expected depends much upon the physical and mental strength of the woman. The distinctions between the facts to be proved, and the evidence adduced in proof of them, should be kept in mind. ‘The importance of resistance is simply to show two .elements in the crime: Carnal knowledge by force by one of the parties, and non-consent thereto by the other.’ [State v. Shields, 45 Conn. 264.] ”

In the case at bar the evidence for the State shows that the young wife and mother was visited by the defendant when he knew her husband was away; that he told her what he “wanted” and “would have;” that he forbade her to make any noise or outcry; that she knew his reputation for immorality and violence, .and was obsessed with fear of him; that he dragged her from the rocking chair and from the kitchen, whither she had tried to escape, and threw his arms around her and drew her upon himself; that he knew at the time her bodily weakness; that it was only three weeks since she had passed through the throes of childbirth, when he attended her as her physician; that she struggled and pulled and pushed with all her strength; despite of which and her continuous begging him'to quit, he accomplished his purpose, after which he threw her off and said “he had better run.”

This was clear and strong evidence tending to show that the unfortunate young wife and mother resisted with all her strength to prevent the desecration of those sacred relations by an act of brutal lust.

It is true defendant testified to the contrary, but the record shows that the prosecutrix was corroborated by the testimony of other witnesses and by the physical facts and by all the circumstances, and that less than two hours after the event her husband found her on his return in a- state of nervous breakdown, and anguish, and was immediately told the cause.

The jury had the witnesses before them. They believed the prosecutrix and did not believe the defendant. If there is one principle of law-settled in the adjudged cases in this State, it is the rule that the verdict of a jury based upon substantial evidence, although contradicted by other testimony, will not be vacated on an appeal in a criminal case, unless there is a further showing of error intervening on the trial as to the admission of the evidence or in the instructions given by the court.

In a late case, this Division stated the rule thus: “We take it, in view of the unbroken line of decisions by this court, that where there is substantial evidence to support the verdict the appellate court will not undertake to retry the case upon the mere disclosures of the testimony in the record, that it is unnecessary to cite authorities upon that question.” [State v. Ripey, 229 Mo. l. c. 666. See, also, State v. Espenschied, 212 Mo. l. c. 223.]

And, again, the court, having under consideration the evidence necessary to sustain a charge for an assault with intent to ravish, said: ‘ ‘ The rule has been repeatedly announced by this court,- that if there is any substantial evidence tending to show defendant guilty of the offense charged against him, the sufficiency of the evidence to support the verdict will not be considered by the apxjellate court.” Citing cases. [State v. Urspruch, 191 Mo. l. c. 47.]

Again, in speaking on this subject, this court said: “ ‘The utmost resistance’ doctrine does not apply where the woman is put in fear of personal violence, and her will thus overcome ... ‘A consent induced by fear of personal violence is not consent; and, though a man lay no hands on a woman, yet if by any array of physical foi’ce, he so overpowers her mind that she does not resist, he is guilty of rape by having the unlawful intercourse.’ ” [State v. Dusenberry, 112 Mo. l. c. 296; 2 Bishop on Crim. Law (7 Ed.), sec. 1125.]

So, in another ease of assault with intent to commit rape, the court said: “It has heen uniformly held by this court that when the record discloses substantial evidence to support the finding of the jury, this court will not undertake to review such finding and retiy the question of facts submitted to them, from the lifeless disclosures of the record, and the verdict, with such disclosures of the record, will not be disturbed.” [State v. Payne, 194 Mo. l. c. 452.]

We, therefore, hold that there was substantial evidence that the prosecutrix made all the resistance of which she was capable in her enfeebled, helpless and terrorized condition, and did not consent to the carnal act which the defendant admits and which the evidence tends to prove he performed with force against her consent. That there being thus substantial evidence of force, non-consent and penetration, all the constitutive ingredients of rape were inferably present; and the trial judge did right in sending the case to the jury.

II. Appellant’s third and fourth points relate to the deductions to-be drawn from the manner of the act and the absence of a great outcry. No inference of a conclusive nature -can he drawn from either of these bases. At the most they give rise to a disputable presumption, which the jury were entitled to draw or not to draw as they might see fit under the circumstances in evidence.

The record in this ease shows, without dispute, that the prosecutrix had little strength, not having been able to sit up a full day during the twenty-two days which elapsed since she gave birth to her child; that she only weighed ninety-seven pounds, and was nineteen years of age. It is evident that these physical infirmities would not- give rise to inferences of the same strength which would arise if the prosecutrix had been a woman of full age and perfect health.and strength. At any rate, such deductions, if admissible, were not compulsory, .hence the trial court was clearly right in relegating them to the jury.

The judgment herein is affirmed.

Boy, G., concurs.

PER CURIAM.

— -The foregoing report of the commissioners is hereby adopted as the opinion of the court.


source: Caselaw Access Project

author: FERRISS, J.

license: Public Domain

text:
    THE STATE v. JOHN WHALEN, Appellant.
    Division Two,
    May 23, 1911.
    1. VOTING: In Wrong Precinct: Indictment: In Name to Grand Jurors Unknown. Where defendant is charged with the offense of voting in a precinct wherein he had no lawful right to vote, the indictment is not invalid for that it charges he applied for and received a ballot in a name to the grand jurors unknown. That part of the indictment may he rejected as surplusage, since, if defendant had no lawful right to vote in the precinct, it is immaterial what name he voted upon or whether or not he gave any name at all/
    2. —■-:--: Instruction: In Name Not His Own. Where defendant was charged with voting in a precinct of which he was not a legal resident and the instruction clearly required the jury to find that fact, it is not erroneous because it went further and required them to find he voted in a name not his own. If that were error it was error against the State, and not prejudicial to the defendant.
    3. -: -: -: Embodying Charge. An instruction which requires the jury to find that defendant “had no lawful right to offer and cast said ballot” sufficiently embraces the charge that he voted in said precinct “without having a lawful right to vote therein.”
    4. -: -: Knowledge. The State is not required to affirmatively show that defendant knew he was voting in a precinct in which he did not reside. It will be presumed that he knows where he lived, and proof that he knew he did not reside in the precinct is shown by proof that he was not registered as a voter in said precinct. Lack of knowledge of residence is a matter of defense.

      Appeal from St. Louis City Circuit Court. — Eon. Eugene McQuillin, Judge.
    Aemkmed.

      Grant Gillespie and G. Orrich Bishop for appellant.
    This indictment simply avers that appellant at the time and place mentioned applied for and received a ballot in and upon a name “to these grand jurors unknown;” it does not aver that the name was not his own nor that it was the name of any other person; for aught that appears from the indictment, appellant may have applied for and received a ballot in and upon his own name; the fact that the name may have been “to the grand jurors unknown” does not excuse them from alleging that it was not appellant’s own name; and the use of the adjectives “falsely, fraudulently and feloniously” add no weight to the averment nor do they supply the omission. Nothing can be taken by intendment. True, it is not made an offense only to apply for and receive a ballot in a name not one’s own, or in the name of any other person, and these words may be treated merely as inducement, but this indictment avers that it was this ballot, and no other, which was east, for it proceeds to allege that appellant did then and there offer and cast said ballot and vote at said general election, etc., without averring that appellant voted in and upon any name not his own nor in and upon the name of another person. To have been criminal, appellant must have applied for and received the ballot in a name other than his own and voted it in a name other than his own; but this was not alleged. The court submitted to the jury the question whether appellant applied for and received a ballot “in and upon a name not his own and in and upon the name of another person,” when there was no such charge in the indictment and no evidence whatever to support it; also whether appellant offered and cast said ballot and voted “in and upon a name not his own and in and upon the name of another person,” when there was no such charge in the indictment, and no evidence whatever to support it; also whether the appellant was a resident of and resided in the alleged precinct on the day of election, when there was no evidence that he did not reside in said precinct; also whether appellant then and there knew that he was not voting in his own name and had no lawful right to offer and cast said ballot and vote, when there was no evidence on which to base such an instruction. The indictment alleged that appellant voted at said election in said election precinct “without having a lawful right to vote therein” but this charge was not embodied in the instruction, .nor were the jury instructed to consider it. In fact, the instruction submitted to the jury only those portions of the indictment which were insufficiently charged, and ignored the only valid charge- which followed-the statute 2120k. If the indictment was bottomed on R. S. 1899, sec. 2114, then the instruction was clearly error 'in misstating the punishment.

      Elliott W. Major, Attorney-General, Chas. G. Rev-' elle and Jolm M. Daioson, Assistant Attorneys-General, for the State.
    (1) The indictment in this case is predicated upon Sec. 4442, R. S. 1909. The indictment follows the language of the statute and is valid, sufficient and good. State v. Cummings, 206 Mo. 618; State v. Clancy, 228 Mo. 476; State v. Tiernan, 223 Mo. 147; State v. Ex-nicious, 223 Mo. 61. The fact that the judges and clerks of the sixth election precinct did not do their duty in taking the name of appellant, or knowing the name under which appellant applied for and received the ballot, or that he received the ballot without giving his name or the name under which he voted, is no defense in this case. The evidence shows that he handed the ballot to the receiving judge and the receiving judge placed the same in the ballot box. This is a violation of the statute under which he is prosecuted. State v. Ryan, 60 Mo. App. 487. The indictment would be good if the words “in and upon .a name to these grand jurors” were rejected as surplusage. It has always been held that the grand jurors may use the declaration in an indictment “to the grand jurors unknown.” Bishop’s New Crim. Proc., secs. 434, 438; Joyce on Indictments, secs. 309, 400; State v. Niehaus, 217 Mo. 332. (2) The instructions cannot be complained of by appellant because they went further and compelled the jury to find facts not necessary to that charge before they could convict the appellant. R. S. 1900, sec. 4442.
   FERRISS, J.

— Defendant was prosecuted in the St. Louis Circuit Court on the following indictment:

“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 oath present, that on the third day of November, one thousand nine hundred and eight, and in each ward and election precinct of said city of St. Louis, a general election was had and held pursuant to the Constitution and laws of the State of Missouri, for the choice and election of Presidential electors, state officers and city officers, to-wit, for the election of two Presidential • electors at large, sixteen Presidential electors, Governor, Lieutenant-Governor, Secretary of State, State Auditor, State Treasurer, Attorney-General, Railroad and "Warehouse Commissioner, Judge, of the Supreme Court, Judge of the St. Louis Court of Appeals, Representatives in Congress, State Senators, Representatives in the State Legislature, three judges of the circuit court of said city of St. Louis, of a circuit attorney, a sheriff, a public administrator, a coroner, and three members of the city council of the city of St. Louis, and then and there on said third day of November, 1908, at said city of St. Louis, at said general election, one John Whalen did appear at the polling place of the sixth election precinct of the fourth ward of said city of St. Louis, before the duly appointed, qualified and acting judges and clerks of election within and for the said election precinct of said ward, and did then and there falsely, fraudulently and feloniously apply for and receive a ballot in and upon a name to these grand jurors unknown, and in said election precinct did then and there falsely, fraudulently and feloniously offer and cast said ballot and vote at said general election, and for the officers aforesaid, without having a lawful right to vote therein, in this, to-wit, that he, the said John Whalen, was not on said third day of November, .1908, a resident and qualified voter in said sixth election precinct of the said fourth ward, and did not on said third day of November, 1908, reside in said sixth election precinct of the said fourth ward, and was not on said third day of November, 1908, entered and registered in the official registers and books of registration of said sixth - election precinct of the fourth ward of said city as a qualified voter and elector of said sixth election precinct of the said fourth ward, all of which he, the said John Whalen, then and there well knew. And so the said John Whalen, at the said city of St'. Louis, on the said third day of November, 1908, in the manner and form and by the means aforesaid, unlawfully, feloniously, willfully, knowingly, falsely and fraudulently did vote in said election precinct without having a lawful right to vote therein; against the peace and dignity of the State.”

This indictment is drawn under section 4442, Revised Statutes 1909, which, so far as it is material to this case, reads as follows:

“Any person who shall falsely impersonate a voter or other person, and vote, or attempt or offer to vote in or upon any name not his own, or shall vote or attempt to vote in or upon the name of any other person living or dead, or in or upon any assumed or fictitious name, or in or upon any name not his own; or shall knowingly, willfully or fraudulently vote more than once for any. candidate for the same office except as authorized by law; or shall vote, or attempt or offer to vote in any precinct, without having a lawful right to vote therein, . . . shall, upon conviction thereof, be adjudged guilty of a felony, and shall be punished for each and every such offense by imprisonment in the penitentiary for not less than two years nor more than five years. ”

The evidence tended to show that the defendant, on the third day of November, 1908, voted at the general election held on that day, in the sixth election precinct of the fourth ward of the city of St. Louis. It is not shown by the evidence what name he gave, nor indeed 'that he gave any name at all. He was seen to hand to one of the judges of election a ballot which was placed in the ballot box. The evidence showed that he was not a resident and qualified voter of said sixth election precinct. It was proved by the records in the office of the election commissioner that he was not registered in such precinct. Officer McMullin, one of the witnesses for the State, testified that he had known defendant for .twelve or fifteen years, and that he was not a resident in that precinct at the time of the election.

The following instruction given by the court is .challenged by the defendant:

“You are therefore instructed that if you believe and find from the evidence in this case that on the 3d day of November, 1908, a general election was had and held in each ward and election precinct of the city of St. Louis and State of Missouri, pursuant to law, for the choice and election of Presidential electors and certain state and municipal officers, to-wit, for. the election of two Presidential electors at large, sixteen Presidential electors, Governor, Lieutenant-Governor, Secretary of State, State Auditor, State Treasurer, Attorney-General, Railroad and Warehouse Commissioner, Judge of the Supreme Court, Judge of the St. Louis Court of Appeals, representatives in Congress, State Senators, representatives in the State Legislature, three judges of the circuit court of said city of St. Louis, of a circuit attorney, sheriff, a public administrator, a coroner, and three members of the city council of the city of St. Louis, and that there was a polling place of said election in the sixth election precinct of the fourth ward of the city of St. Louis, Missouri, presided over by duly appointed, qualified and .acting judges and clerks of election; and if you further believe and find from the evidence that the defendant, John Whalen, was not on said 3d day of November, 1908, a resident and qualified voter in said sixth election precinct of said fourth ward, and did not on said day reside in said election precinct of said ward, and was not on said day entered and registered in the official registers and books of registration of said election precinct of said ward as a qualified voter and elector of said election precinct of said ward; and if you further believe and find from the evidence in this case that said defendant, John Whalen, appeared at the polling place of said sixth election precinct of the fourth ward of said city of St. Louis, before the duly appointed, qualified and acting judges and clerks of election within and for said election precinct of said ward, and did then and there falsely, fraudulently and feloniously apply for and receive a ballot in' and upon a name not his own, and in and upon the name of another person, and that said defendant did then and there falsely, fraudulently and feloniously offer and cast said ballot and vote at said general election and for the officers aforesaid, or for any of them, in and upon a name not his own, and in and upon the name of another person, and that the defendant at the time that he offered and cast said ballot, if you find from the evidence that he did offer and cast said ballot, then and there knew that he was not voting in his own name, and had no lawful right to offer and cast said ballot and vote, then you will find defendant guilty as charged in the indictment and assess his punishment at imprisonment in the penitentiary at not less than two nor more than five years, and unless you so find from all the evidence in the case, you will acquit the defendant. ’ ’

I. The indictment charges that the defendant applied for and received a ballot in a name to the grand jurors unknown. It is claimed by the defendant that the grand jury could have ascertained the name under which the defendant voted by an examination of the poll book on which the name of the voter is entered at the time he votes. We think there is nothing in this claim. The defendant is charged in the indictment with the offense of voting in a precinct wherein he had no lawful right to vote, and that portion of the indictment which states that he applied for and received a ballot in and upon a name to the grand jurors unknown may be rejected as surplusage. [Sec. 5115, K S. 1909.] If defendant had no lawful right to vote in the sixth precinct of the fourth ward, it matters not what name he voted under, or whether he gave any name at all.

II. It is further claimed by the defendant that inasmuch as there is no testimony showing that he gave any name when he 'voted, said instruction, which required the jury to find that he voted in a name not his own, was improper. On the other hand, it is contended by the State that the crime charged in the indictment was. established when the evidence showed that the defendant voted in the precinct wherein he was not registered and in which he did not live, and where, consequently, he had no right to vote, and that the fact that the instruction required the jury to find that he voted in a name not his own could not prejudice the defendant. The theory of the State is that inasmuch as the instruction required the jury to find from the evidence that the defendant had no lawful right to vote in said sixth precinct, and that the jury must so find in order to convict, the further requirement that the jury should find that he voted in a name not his own was, if anything, favorable to the defendant, because it imposed a greater burden upon'the State than the law required. We are of the opinion that the theory of the State is correct. The indictment charged that the defendant voted in a precinct wherein he had no legal right to vote, and the jury were required by the instruction to so find. The fact that the jury were required to find further that he voted in a name other than his own did not prejudice the defendant. [State v. Butterfield, 75 Mo. 297; State v. Stewart, 90 Mo. 507; State v. Thornhill, 174 Mo. 364; State v. Hunter, 181 Mo. 316; State v. Sharp, 233 Mo. 269.]

III. It is contended by the defense that there is no evidence in the case that the defendant was not a resident and qualified voter of the sixth election precinct of the fourth ward. This claim is not supported by the record, as appears from the above statement of facts.

IV. The defense further claims that the indictment “alleged that appellant voted at said election in said election precinct without having a lawful right to vote therein,’ and this charge was not embodied in the instruction, nor were the jury instructed to consider it. ’ ’ Upon this point the. instruction says: And that the defendant at the time he offered and cast said ballot (if you find from the evidence that he did offer and cast said ballot), then and there knew that he was not voting in his own name, and had no lawful right to offer and cast said ballot and vote,” etc. We therefore think that the jury were sufficiently charged in this respect.

Y. The defendant was properly and sufficiently charged under the statute with having voted in a precinct wherein he had no lawful right to vote, and wherein he knew he had no right to vote. The evidence that he did vote in that precinct, and that he had no right to vote therein, is undisputed, and the jury were justified in finding that he did this knowing that he had no right to vote in that precinct. It certainly is fair to presume that a man knows where he lives, and knows where he is registered, if registered ,at all. The State cannot be expected to make affirmative proof of such knowledge. If there is absence of the knowledge which the law requires, such fact, if it exists in a case like this, becomes a matter of defense.

The instruction in this case is not well drawn, in that it includes some matters which are not in evidence; but we are unable to say, under section 5115, Revised Statutes 1909, that there was any prejudicial error, especially as the jury assessed the punishment at two years, which is the lowest punishment prescribed by the statute. The judgment is affirmed.

Kemiish, P. J.} and Brown, J., concur.


text:
    THE STATE v. G. E. SWEARENGIN, Appellant.
    Division Two,
    May 23, 1911.
    1. INFORMATION: Hog Stealing. An information charging that defendant and two others, on a certain day, “one hog, of the value -of fifteen dollars, belonging to Frank Ellison, then and there being found, unlawfully and feloniously did steal, take and carry away, contrary to the form of the statute,” ere., sufficiently charges defendant with hog stealing.
    2. INSTRUCTION: Principal: Theft as Abstract Proposition: Cured by Others. An instruction telling the jury that if they find “from the evidence that a hog was stolen at the time and place mentioned in the information, and further find from the evidence that the defendant was present, aiding and assisting in said larceny,” that he was guilty as a principal, is not incorrect as an abstract proposition of law, but should have been fuller and more specific; but if another instruction, which was a correct, full and explicit declaration of the law and facts, was given and there was no evidence of the theft of any other hog except the one belonging to the man named in the indictment as the owner, it was not reversible error.
    3. -: As Set Forth in Transcript and Bill. Loose pages found in the' transcript in which are set forth instructions having no meaning, will not be accepted as establishing that the instructions set forth in the bill of exceptions were not the ones actually given, where there was no suggestion in this court of a diminution of the record.
    Appeal from. Douglas Circuit Court. — Hon. John T. Moore, Judge.
    Affirmed.

      Q. Purd Hays for appellant.
    (1) The motion to quash should have been sustained. The information does not describe the hog stolen. It does not say that the hog is the personal property or the goods and chattels of Frank Ellison. The information charges that ‘ ‘ Frank Ellison then and there being found unlawfully and feloniously did steal, take and carry away.” The information charges Frank Ellison with stealing the hog, and not the defendant, Swearengin. Every fact should be clearly and accurately stated. Nothing is to be taken by intendment or implication in an information for a felony. State v Gassard,. 103 Mo. App. 143; State v. Rector, 126 Mo. 320 ; State v. Evans, 128 Mo. 406; State v. Nunley, 185 Mo. 102; Kel. Crim. Law, secs. 643 and 644. The information is not verified according to law. R. S. 1909, sec. 5059. The information has two. jurats of the clerk, being at different times. The defendant cannot tell when he was informed against and why it was necessary to have two jurats, but the facts are that the prosecuting attorney amended the information and swore to it the second time because he amended it, but the clerk has failed to make a.record of it. (2) Instruction 1 is not the law. It says that if, “a hog was stolen at the time and place mentioned in the information,” etc. It should read that, if “a hog the personal property of Frank Ellison” was stolen at the time and place mentioned in the information, etc. The court committed reversible error by failing to state the time in the instruction instead of referring the jury to the information to find the time and place of the alleged stealing. State v. Scott, 100' Mo. 226; State v. King, 78 Mo. 555.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General for the State.
    (1) The information in this cause is sufficient in form and substance. It charges the crime in the language of the statute. R. S. 1909, sec. 4535; Kelley’s Crim. Law, sec. 642; Sherwood’s Crim. .Law, pp. 217, 221; State v. De'Witt, 152 Mo. 84. The information is properly verified by the prosecuting attorney on his “information and belief,” as required by statute. R. S. 1909, sec. 5057; State v. Gregory, 178 Mo; 48; State v.-Temple, 194 Mo. 228; State v. Hunt, 106 Mo. App. 326. (2) Appellant’s next assignment of error is-as to the giving of instruction 1 on behalf of the State, because said instruction does not contain the words “a hog, the personal property of Frank Ellison.” Instruction 3, given on the part of the State, contains the words, “a certain hog, the personal property of Frank Ellison.” This instruction should be read in connection with instruction 1. All the instructions given in a case should be read and considered together in passing upon their form and sufficiency. State v. Brown, 188 Mo. 466; Flaherty v. Transit Co., 207 Mo. 334; Gfibler v. Terminal Assn., 203 Mo. 222; Shanahan v. Transit Co., 109 Mo. App. 232; Mathew v. Railroad, 115 Mo. App. 468.
   BOND, C.

— The defendant was convicted of hog stealing and sentenced to two years in the penitentiary, in the circuit court of Douglas county, at the September term, 1910, upon an information, charging that he and two others on a day mentioned “one hog of the value of fifteen dollars, belonging to Frank Ellison, then and- there being found, unlawfully and feloniously did steal, take and carry away, contrary to the form of the statute,” etc.

On the trial there was evidence that defendant and two other persons were ostensibly hog hunting on the dates specified in the information; that while so engaged they captured a Poland China sow belonging to one Frank Ellison, which they turned over to one of the parties for five dollars, paid to the other two. The hog was ultimately retaken from the purchaser by the owner.

A severance was granted the three parties charged; one of them entered a plea of guilty and testified on the trial of defendant. His testimony was corroborated by other witnesses, and tended to prove that defendant participated in the stealing and received part of the money paid for the hog. Defendant introduced witnesses as to his good character, and testified on his own behalf. He denied that he took any part in the theft of the sow, or received any of the money. He also denied the statement to the effect that he had given back to the purchaser the five dollars paid for the hog when he learned the purchaser was about to be arrested; and denied that he advised the purchaser to leave the country. He admitted, however, that he loaned five dollars to the purchaser of the hog.

The court gave seven instructions, to which defendant duly excepted.

After the overruling of his motions for new trial and in arrest, defendant appealed to this court.

I. Defendant assigns error in the overruling of his motion to quash the information. There is no merit in this contention. The information is framed according to the approved precedents, and charges the offense in the language of the statute upon which it is based. [Sec. 4532, R. S. 1909; Kelley’s Crim. Law, see. 642; Sherwood’s Crim. Law, pp. 217, 221; State v. DeWitt, 152 Mo. l. c. 84.]

Neither is there any defect in the verification of the information. It was verified by the prosecuting attorney “upon information and belief” in the manner prescribed by statute. [R. S. 1909, secs. 5057-5059.]

II. Appellant next complains of the action of the court in giving instruction number one, to the effect that if the jury found “from the evidence that a hog was stolen at the time and place mentioned in the information, and further found from the evidence that the defendant was present, aiding and assisting in said larceny,” then he would be guilty as a principal.

This instruction is not incorrect as an abstract statement of the law. It might have been fuller and more specific, but its omissions in that respect could not have misled the jury, for by instruction number 3 a full, explicit and correct statement of the law and facts was made; and under that instruction, coupled with the fact that there was not a scintilla of evidence on the trial referring to the theft of any other hog than the one belonging to Frank Ellison, it was impossible for the jury to have been confused or misled. We, therefore, rule that point against appellant.

III. Appellant next complains of the verbiage contained in instruction numbered 2, and has italicized certain terms contained in that instruction, which if they had been in the original as it was given by the court, would have rendered it meaningless and unintelligible. A careful examination of the bil-1 of exceptions shows that instruction as quoted in appellant’s brief was not given in the form contained therein, but was given in a different form and clearly presented'the law applicable to proof of good character in criminal cases. It is true that the transcript contains some loose pages which would warrant the quotation of this instruction as made in appellant’s brief, but those loose pages were not contained in any part of-the bill of exceptions in this cause; neither are they authenticated as copies of the original instruction; nor is there any evidence in the record of a mmc pro tuno entry correcting the instructions given on the trial; nor was there any suggestion of ’diminution of record in this court; nor any steps taken to show that the instructions contained in the bill of exceptions were not the veritable ones given by the court on the trial of this case.

Under these circumstances, we can only look at the record of the instructions as is contained and set forth in the bill of exceptions; and as they appear there free from any of the flaws or criticisms made in appellant’s brief, we hold that his contentions as to the phraseology of the instructions are wholly untenable.

TV. Finally, appellant attacks instruction numbered 3 as being “at variance with the allegations of the information.” This exception is not sustained by the record. The substance of the information is set forth in the foregoing statement. The instruction criticized, omitting formal parts, told the jury that if they found from the evidence, that defendant did “wrongfully and fraudulently steal, take and carry away a certain hog, the personal property of Frank Ellison, of the value of fifteen dollars, with the felonious intent to convert the same to his own use and make it his own property without the consent of the owner, you will find the defendant guilty, and assess his punishment at a term in .the state penitentiary not less than two years and more than five years.”

This instruction was a flawless declaration of the law-from the facts adduced on the trial, and is in perfect accord with the offense charged in this case.

The judgment herein is affirmed.

Roy, G., concurs.

PER CURIAM.

— The foregoing report of the commissioners is hereby adopted as the opinion of the court.


author: BROWN, J.

text:
    THE STATE v. D. M. TUCKER, Appellant.
    Division Two,
    May 23, 1911.
    1. FORGERY: Lost Note: Proof of Contents. While defendant cannot be compelled to produce a note he is charged with forging, he has a right to assume that parol evidence of the contents of the instrument in his possession will not be offered in evidence without giving him a reasonable opportunity to produce it.
    2. -:-: -: Reasonable Notice to Produce. Defendant resided one hundred iniles from the place of trial, which it required one nearly a whole day to reach He left home Sunday morning to attend the trial, and at 1:30 p. m. Monday was served, at the place of the trial, with a written notice to produce at the trial the note he is charged with having forged, and which the evidence showed was delivered to him when he took it up by a renewal note. He was put upon his trial Tuesday. Held, that the notice to produce the note was not sufficient, and his conviction cannot stand.
    Appeal from Pulaski Circuit Court. — Hon. L. B. Woodside, Judge.
    Reversed and demanded.

      Watson & Holmes' and Fred L. Scott for appellant.
    The court erred in admitting secondary evidence of the contents of the note alleged to have heen forged, for the reason that there was no proper foundation laid for the introduction of such' evidence. “Ona prosecution for forgery the instrument alleged to have been forged must be produced at the trial, or its absence satisfactorily accounted for, before evidence can be given to prove the forgery, and, if the instrument is in the hands of the accused, sufficient notice must be given him to produce it.” State v. Martin, 230 Mo. 680; State v. Flanders, 118 Mo. 237; 3 Green-leaf on Evidence (16 Ed.), sec. 107; 13 Am. and Eng. Ency. Law, 111; 2 Bish. New Crim. Proc., see. 433; Underhill on Crim. Evidence, 490'; State v. Kimbrough, 13 N. C. 431.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) Bishop lays down the following rule, which rule has been approved by this court, as follows: “Before evidence of the forgery will be admitted at the trial, the forged instrument must be produced or its nonproduction be justified from necessity, as by showing that it is lost or destroyed, or not within reach of the process of the court, or is in the possession of the defendant. And in the last instance, not in the others, reasonable notice must have been given him to produce it.” 2 Bishop’s New Crim. Proc., sec. 433; State v. Flanders, 118 Mo. 237; Rex v. Haworth, Car. & P. 254; State v. Kimbrough, 2 Dev. 431; Rex v. Hunter, 4 Car. & P. 128; F'oulkes v. Commonwealth, 2 Rob. (Va.) 836. Reasonable notice was given appellant to produce the notes. The court properly allowed secondary evidence of the contents of the forged note. As to what is to be understood by the word “reasonable,” the court is referred to the following authorities: Altshuler v. Coburn, 38> Neb-. 881; State v. Van Yersluis, 42 Minn. 129; In re Nice v. Schreiber, 123 Fed. 987; Ex parte Mirande, 73 Cal. 365; Jones v. Angelí, 95 111. 376; State ex rel. v. Associated Press, 159 Mo. 410. Reasonable notice is defined to be such, notice or information of a fact as may be expected or required under the particular circumstances. Sterling Mfgv Co. v. Hough, 49 Neb. 618; Halsey v. Salmon, 3 N. J. L. 916; In re Yanauken, 10 N. J. E'q. 186; Mallory v. Leiby, 1 Kas. 97.
   BROWN, J.

— Defendant appeals from a judgment of the circuit court of Pulaski county, sentencing him to serve a term of two years in the penitentiary, for the crime of forgery in the fourth degree.

The evidence shows that on September 9, 1907, the defendant delivered to the People’s Bank of Dixon, Missouri, a promissory note for the principal sum of $500, which note purported to be executed by the defendant as principal, and J. E. Ross, J. D. Thomas and G-. W. Maze as sureties, and payable to said People’s Bank one year after the date thereof. The indictment alleged that the signatures of Ross, Thomas and Maze had been forged to this note. There was some evidence of this alleged forgery, and also some evidence that all the signatures to the note were genuine.

Defendant, who was tried in Waynesville, in Pülasld county, on September 20, 1910', resided in Green county, about one hundred miles distant from the place of trial. He left home on Sunday morning* to attend the trial, and from the nature of the route it required nearly a whole day to reach Waynesville. At one-thirty p. m. on Monday defendant was served at Waynesville with a written notice to produce at the trial the alleged forg’ed note. The indictment charges and the evidence proves that this note was delivered to the defendant in 1908, at which time he gave a renewal note therefor.

The defendant’s trial took place on Tuesday, the day following the service of the above mentioned notice; and he contends that the notice was not served on him a reasonable time before the trial, and that the circuit court committed reversible error in admitting, over his objection, parol evidence of the contents ■ of said alleged forged note.

The reason for requiring notice to the defendant to produce a document which he is charged with having forged and which is- in or presumed to be in his possession, is (1) to enable him to produce the document, if he so desires; and (2) if it be lost or destroyed, to enable him to summon witnesses to meet such proof of its contents as may be offered by the adversie party.

While the defendant could not be compelled to produce a document which might tend to establish his guilt, he has a right to assume that parol evidence of the contents of such a document in his possession will not be offered in evidence without giving him a reasonable opportunity to produce the original, if he believes it might tend to establish his innocence. [State v. Martin, 229 Mo. 620, l. c. 636; State v. Flanders, 118 Mo. 227; 2 Bish. Crim. Prac., see. 433; 3 Greenleaf on’Evidence, sec. 107.]’ In this case, there was no attempt by either the State or the defendant to prove that the alleged forged note upon which this prosecution is based had been lost or destroyed. The burden of proving the loss or destruction of a written document rests on the party seeldng to introduce secondary evidence of its contents. [17 Cyc. 539.] The result of this appeal depends upon the sufficiency of the notice given to defendant to produce the alleged forged note. It has been seen that he resided one hundred miles from the place of trial. The place of the alleged forgery was also several miles from the place of trial, although in the same county.

There is no fixed rule as to what is reasonable notice in cases of this character. Every case must be governed by its own particular facts. In this case, if the defendant had left the note at his residence 100 miles away, he could not- have obtained it after the notice was served on him in time for use at the trial; and if he had destroyed the note and there were witnesses residing outside the city of Waynesville by whom he might have desired to prove its contents, or the genuineness of the signatures thereto, he would not have had sufficient time to find them and procure their attendance after notice for its production was served; hence, we hold that the notice to produce was not served a sufficient time before the trial to warrant the cii'cuit court in admitting secondaxrv or parol evidence of its contents; and its action in so doing constitutes prejudicial error, for which its judgment is reversed and the cause remanded for a new trial.

Kennish, P. J., and Ferriss, Jconcur.


text:
    THE STATE v. FRANK SOUVA.
    Division Two,
    May 23, 1911.
    1. GAMBLING DEVICE: Sufficiency of Evidence. Gambling is usually carried on behind locked doors or under some kind of a mask, in order to make detection difficult. Hence, courts are not disposed to disturb verdicts of guilty in cases of setting up and keeping gambling devices and permitting parties to bet thereon, if they are supported by substantial evidence, although such evidence may be wholly circumstantial. In this case the evidence of defendant’s guilt, though not overwhelming, was sufficient to carry the case to the jury.
    2. -: Presumption from Prior Conduct. Testimony that defendant “used to run seven-up tables all the time” in the gambling room in which he is charged with having set up and kept a poker table; raises a presumption that he still had charge of the place.
    3. REMARKS OF ATTORNEY: No Exception. The neglect of defendant’s attorney to except to the failure of the trial court to comply with his request to reprimand the prosecuting attorney for improper remarks forestalls a review of the court’s action in that respect.

      Appeal from Jasper Circuit Court. — Hon. Henry L. Bright, Judge.
    Affirmed.

      A. F. Gonder and Walden S Andrews for appellant.
    (1) The court erred in refusing to give the instruction asked by defendant in the nature of a demurrer at the close of the State’s case. To establish its case, the State offered the testimony, of Bond, Hammond and Henderson, who were present at the time of the defendant’s arrest. Each witness testified that there wasi no game of any kind being played upon' the table; that they were not induced, enticed or permitted to play upon said table by the defendant; and that they did not know that he was present at the time they entered the place alleged to have been kept by the defendant. The evidence wholly failed to show that the defendant was the keeper of the said table or gaming device. (2) The court erred in not reprimanding the prosecuting attorney for referring to the fact that the grand jury had passed on the case and had found the defendant guilty, and other remarks with reference to the actions of the grand jury and its foreman. Under the statute (Sec. 5283, E. S. 1909) reference to verdict on former trial is prohibited. State v. Leabo, 89 Mo. 247. And much more should the reason of this statute apply where reference is made to the action of the grand jury in which the defendant had no opportunity to be heard. The court should have reprimanded the attorney, and, failing to do so, should have granted a new trial. Prosecuting officers, even in the heat of debate, ought not to forget that they owe a duty to the defendant as well as to the State; to the State to fairly prosecute and endeavor to secure conviction by all proper and legitimate methods, to the defendant to refrain from doing and saying aught that the highest sense of professional honor will not sanction. State v. Pagels, 92 Mo. 300'; State v. Pushon, 33 Mo. 44. If the prosecuting attorney is permitted by the trial court, in spite of the objections from the defendant, to address improper remarks to the jury, the Supreme Court will reverse the judgment. State v. Johnson, 76 Mo. 121.

      Elliott W. Major, Attorney-General, and Jolm M. Dawson, Assistant Attorney-General, for the State.
    (1) The prosecuting attorney, in arguing the case, said to the jury: “I want to say to you that if you believe in strengthening and holding up the strong arm of the grand jury in Jasper county, you will return a verdict of guilty.” Appellant objected to the statement, “upholding the hands of the grand jury.” The court sustained the objection, but did not reprimand the prosecuting attorney. The prosecuting attorney desired the record to show that the remark was provoked by repeated references on the part of counsel for defendant that defendant was not getting a square deal, whereupon, appellant’s counsel said, “The charge that he did not get a square deal was toward the prosecuting attorney’s office and not to the grand jury.” It will thus be seen that the prosecuting attorney was simply answering’ the argument of appellant’s counsel before the jury. The court sustained the objection, no harm was done appellant, and the case should not be reversed for this remark. State v. Allen, 174 Mo. 698; State v. Hyland, 144 Mo. 313; State v. Summer, 143 Mo. 234; State v. Barrington, 198 Mo. 92; State v. Sublett, 191 Mo. 174. (2) The appellant was legally convicted of the offense charged. He introduced no evidence to explain away the damaging facts and circumstances shown by the State’s evidence, and it may be conceded''that no mistake was made by appellant’s counsel in going to the jury upon the State’s evidence, as the jury were liberal with appellant in assessing his punishment.
   BROWN, J.

— -Defendant was indicted and convicted of the crime of feloniously setting up and keeping a poker table in the basement of a saloon in the city of Joplin, Missouri, and permitting parties to bet and play upon said gaming table. From a judgment of the circuit court of Jasper county fixing his punishment at a jail sentence of six months, he appeals.

The evidence shows that the constable of G-alena township in Jasper county, upon going to the basement nuder a saloon on Sixth street in the city of Joplin, found the door of said basement locked; but gained admittance by knocking. Entering this basement, he found the defendant and two other persons seated at a table. In front of defendant were some playing cards, a large stack of poker checks and about thirty dollars in silver coins. Five cards had been dealt out to and were lying in front of each party sitting at the table, and there were also poker checks on the table in front of each of said parties. The constable arrested the defendant, took into his possession all the cards, poker checks and money found on the table; and up to the date of the trial, some ten months later, no one had claimed same.

Defendant did not go upon the stand, and offered no evidence in his behalf.

The State called as witnesses the parties who were found sitting at the table with defendant in the aforesaid basement; and each of them testified that on the night of the constable’s-raid they had not played any game, but were merely sitting around the table talking and shuffling the cards and poker checks; that the' game of poker was usually played with five or three cards for each player. One of these parties found at the table with defendant, testified that he went into the basement because he saw a light down there, and that _ defendant “used to run seven-up tables down there all the time. ’ ’

1. Defendant contends that the foregoing evidence was not sufficient to warrant the court in submitting the case to the jury.

2. Defendant also asks a reversal of the judgment because of alleged improper remarks by the prosecuting attorney in his address to the jury, which remarks will be noted in our opinion.

OPINION.

It is true that the foregoing evidence is rather meagre, particularly as to defendant having set up and kept a poker table; yet the evidence of one of the witnesses that defendant had been running seven-up tables in this basement prior to his arrest raises a presumption that he still had charge of that place. [Zwisler v. Storts, 30 Mo. App. 163; 16 Cyc. 1053.]

The defendant’s position at the table indicated that he had charge of most of the poker checks and apparently had sold some of same to the other players. The further fact that up to the time of the trial he had not set up any claim to the money found stacked on the table in front of him, raises a presumption that this money was at the time of defendant’s arrest being used by him for the unlawful purpose of gambling. We think the foregoing evidence made out a prima facie case for the State. [Butler v. State, 2 Ga. App. 623.]

Gambling, like the illegal traffic in intoxicating liquors, is usually carried on behind locked doors, or under some kind of mask, in order to make detection difficult; so that.courts are "not disposed to disturb verdicts of this character if supported by substantial evidence, although such evidence be wholly circumstantial in its nature. [City of St. Louis v. Sullivan, 8 Mo. App. 455; Harmon v. State, 120 Ga. 197; State v. Boyer, 79 Ia. 330; Underhill on Crim. Evidence (2 Ed.), sec. 473.]

■ The evidence of defendant’s gnilt was not of an overwhelming character, but we find it was sufficient to carry the case to the jury; and we will not overturn its verdict.

In the course of his remarks to the jury, the prosecuting attorney said, “If you believe in strengthening and holding up the strong arm of the grand jury in Jasper county, you will return a verdict of guilty, guilty, guilty!”

Defendant objected to “the statement of the prosecuting attorney about upholding the hands of' the grand jury,” and asked that he be reprimanded in the presence of the jury. The court sustained the objection, but did not reprimand the prosecuting attorney. Defendant saved no exception to the failure of the court to reprimand the prosecuting attorney.

The defendant having failed to except to the court’s failure to administer a more pointed rebuke to the transgressing prosecuting attorney, we do not deem it our duty to reverse the judgment on account' of his improper reference to the indictment as evidence of defendant’s guilt. To bring such errors before us for review, they should be excepted to at the time. [State v. McMullin, 170 Mo. l. c. 632.; State v. Phillips, 233 Mo. 299.]

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

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


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    THE STATE v. BURR PETERS, Appellant.
    Division Two,
    May 23, 1911.
    CONVICTION BASED ON CONFESSION: Cautionary Instruction. Although defendant’s conviction of arson rests on alleged confessions made by him to witnesses who did not make them known for nearly a year afterwards, yet if the court gave a fair cautionary instruction on the liability of such witnesses to forget or misunderstand what was really said to them, it will not be held on appeal that the evidence was insufficient to sustain the verdict, if being true it is substantial evidence of defendant’s guilt.
    Appeal from Ozark Circuit Court. — Hen. John T. Moore, Judge.
    Appiemed.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    Where there is substantial evidence tending to support the verdict of guilty, this court will not interfere, but will defer to the finding of the jury and the trial court. State v. Smith, 1901 Mo. 706; State v. Payne, 194 Mo. 442; State v. Groves, 194 Mo. 452; State v. Williams, 149 Mo. 496-; State v. Swisher, 186 Mo. 8,
   FERRISS, J.

— Defendant was convicted of arson in the fourth degree, under section 4512, Revised Statutes 1909'.

The evidence for the State showed that defendant confessed to one John K. Dunnigan, a witness, the day after the fire, that he burned the fence of the prosecuting witness. Witness Dunnigan testified for the State as follows: “I was working and cleaning out a fence row, and the boy of mine was hauling rocks and I was building fence, and we left a load of rock on the wagon the next morning; and he (defendant) came down and said when he got within about ten steps of me — he says, ‘Old John Gilliland is wanting to hire hands to make rails for his farm is outside,’ and he said fire was out, and I says, ‘Who burned it?’ and he says, ‘When I went home I told Alfa I would knock around awhile, and I went down and touched it off;’ and I says, ‘Burr, you didn’t do that;’ and he says, ‘Yes, sir, by God, I stuck a light in it;’ and I says, ‘They will catch you, and ytíu will get into trouble;’ and he says, ‘No, I won’t tell nobody else;’ and I says, ‘I don’t care about you telling me;’ and he says, ‘I know that you won’t tell it;’ and he said, ‘He ought to be burned out; ’ and I says, ‘ They will track you;’ and he says, ‘They can’t; I was half way home before the blaze;’ and he says, ‘I went home, and me and Alfa set by the window and watched it and couldn’t see the blaze, but could see the light.’ ”

Another witness testified that defendant told him that he was there, and saw the fence burning.

The sheriff testified that defendant told him, when arrested, that he knew witness Dunnigan had informed on him, because he was working for Dunnigan the day after the fire. There was testimony that defendant and the prosecuting witness were on bad terms, also that Dunnigan did not tell of his conversation with defendant until about a year after it occurred, and not until he had fallen out with defendant, also that Dunnigan was on bad terms with the prosecuting witness.

The case rested practically on the alleged confessions of defendant. On this point the court gave a cautionary instruction as follows:

“Although the jury may believe from the evidence that the defendant made statements to various persons concerning the crime charged against him, still, if said statements were made in the course of ordinary circumstances, they should be considered with great caution, because of the liability of witnesses-to forget or misunderstand what was really said or understood.”

The jury fixed the punishment at six months in jail.

The motion for a new trial complains of the instructions in general terms only, also that the evidence was insufficient to sustain the verdict. No brief or assignment of errors is filed by defendant.

The evidence was submitted to the jury on instructions fair and favorable to the defendant, and was sufficient to sustain the verdict.' No instructions were asked by the defendant. The information was valid and all the proceedings regular, according to defendant all his rights under the law.

The judgment is affirmed.

Kevmish, P. J., and Brown, J., concur.


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    THE STATE v. GEORGE BURK, Appellant.
    Division Two,
    May 23, 1911.
    1. TESTIMONY: Admissions: Made by Grandson. Statements of defendant’s grandson, made in the presence and hearing of defendant at a time he was not under restraint or duress, are admissible in evidence; and his failure to deny them at the time -raises a presumption that they were true.
    2. --: Belief of Defendant's Guilt. Testimony by a witness that he believes defendant to be guilty is improper, but if not objected to at the time and no effort was made to have it stricken out or withdrawn, is not reversible error.
    3. VARIANCE: Not Raised by Motion. Unless the motion for a new trial raises the question of a variance between the charge and the evidence, it cannot be considered on appeal.
    4. INSTRUCTIONS: Requiring Liquor to be Intoxicating. The instructions in the trial of a defendant for a violation of the Local Option Law, should not require the jury to find that '■ the beverages sold by defendant contained intoxicating liquor. If they contain some percentage of alcohol, however small, tke sale of them is illegal. It is wholly unnecessary for the State to prove, or the instructions to require the jury to find, that they were intoxicating. But if the instructions do that, they are more favorable to defendant than the law authorizes, and of that favor he cannot complain — especially where there was substantial evidence that they were intoxicating.
    Appeal from Lawrence Circuit Court. — Eon. F. G. Jolmsion, Judge.
    Affirmed.

      Parker Potter and J. W. Leake for appellant.
    The verdict in this case is not based upon evidence, as there is no evidence to support it, but on the other hand was founded upon prejudice created by the admission of the testimony of the witness Gtalbreath, relating statements made by defendant’s grandson and conversations he had with other parties attacking defendant’s character and reputation in advance of any such issue being raised by defendant. This is a reversible error. State v.0 Martin, 28 Mo. App. 530; Cape Griradeau v. Fisher, 61 Mo. App. 500. The State failed to prove that the drink sold by defendant was an intoxicating liquor, that it contained any alcohol whatever or that it was any of the known brands of beer, but proved that it was not the regular Pilsener beer, but a substitute, and was not intoxicating. The State failed to prove its charges and the court should have given the peremptory instruction asked for by defendant. Hilz v. Railroad, 101 Mo. 3.6. The State’s attorney assumed, and the court'in his examination of the witness Lou Minor approved, the theory that the State must prove that the drinks sold were, in fact, intoxicating. It was error to ignore this theory and submit the case to the jury without such proof.

      Elliott W. Major, Attorney-General, and Charles G. Bevelle, Assistant Attorney-General, for the State.
    (1) The indictment in this cause charges the sale of intoxicating liquor, to-wit, one bottle of beer. The person to whom, the beverage was sold testified: I bought (from appellant) two cases of some kind of medium beer. It was marked Pilsener beer. Pilsener is a heavy beer and an intoxicating beer, but what I got from Burk was a very light colored beer. This was a very light beer, if it was a beer. Whether it is an intoxicating liquor or not, I could not say. I would not call it so- unless a person was not used to intoxicants. The regular Pilsener beer they claim is not intoxicating.” Upon this proof alone, and without any additional evidence to the effect that the beverage contained alcohol, the verdict of the jury would not be disturbed. State v. Heinze, 45 Mo. App. 411; State v. Hours, 36 Mo. App. 273; State v. Effinger, 44 Mo. App. 81; State v. Watts, 101 Mo. App. 660:; Briffit v. State, 16 N. W. 39; State v. Currie, 80 N. W. 475; Myers v. State, 93 Ind. 251; State v. Tisdale, 55 N. W. 90S-; People v. Wheelock, 3 Parker’s Crim. Rep. 14. (2) The evidence shows that the beer or beverages generally handled by appellant contained from one-half of one per cent to two per cent of alcohol, while the beer sold on the occasion complained of in this prosecution was stronger and contained a greater per cent of alcohol. Within the meaning of both the dram-shop and local option laws this proof established that the beer sold was intoxicating regardless of its effect upon the human system. State v. Martin, 230 Mo. 1. (3) There is no variance between the allegation in the indictment and the evidence offered in support thereof, but, if there is, it is immaterial and non-prejudicial. At the close of the State’s case appellant offered a general demurrer to the evidence which the court overruled, and, thereupon, the jury was instructed upon the theory that the alleged variance was not material to the merits of the case and was not prejudicial to the defense of the defendant. To the trial court alone belonged the duty of determining whether the variance was material, and the action of that court in overruling the demurrer and in giving the instructions it did, is equivalent to an affirmative finding that the variance was immaterial and not prejudicial, and to such finding this court will defer. R. S. 1909, sec. 5114; State v. O ’Brien, 228 Mo. 404; State v. Jackson, 221 Mo. 478; State v. Harl, 137 Mo. 256; State v. Barker, 64 Mo. 285; State v. Smith, 80 Mo. 520; State v. Sharp, 106 Mo. 109; State v. Walters, 144 Mo. 347; State v. Wommack, 70 Mo. 411; State v. Sharp, 71 Mo. 221; State v. Ward, 70 Mo. 225; State v. Nelson, 101 Mo. 482; State v. Dale, 141 Mo. 287; State v. Decker, 217 Mo. 321 ;»State v. Heinze, 45 Mo. App. 411.
   BROWN, J.

— Defendant was convicted of violating the Local Option Law in force in the city of Aurora in Lawrence county; and from a judgment of the circuit court of that county imposing a fine of $300, appealed to the Springfield Court of Appeals, where the judgment of the trial court was affirmed. However, as one judge of the last named court was of opinion that the law as declared by that court in this case is in conflict with prior decisions of this court and of the St. Louis and Kansas City Courts of Appeals, the case was transferred here. '

The information charges the defendant with unlawfully selling “distilled, fermented and intoxicating liquor, to-wit, one bottle of beer.” The instruction of the court authorized a conviction if the jury found that the defendant had sold “intoxicating liquor, to-wit, beer.” The evidence shows the sale by defendant to one Lewis Minor, of two cases of a beverage labeled ‘ ‘ Piltzner-Beer. ’ ’

The evidence of witness Minor was to the effect that Piltzner beer was. a heavy, intoxicating beer, but that the particular lot he purchased of defendant was very light colored. Said witness was doubtful whether or not it would intoxicate, but thought it would not, unless the party drinking same was not accustomed to '.the use of intoxicating liquor. There was evidence of an admission by the defendant that the beverage sold to witness Minor was too strong to sell in a local option county, and that he did not use it in his general trade as a restaurant keeper. There was also evidence that defendant had admitted that all the beverages sold by him contained from forty one-hundredths of one per cent to two per cent of alcohol.

Defendant asks a reversal of the judgment for the • following reasons :

1st. -The admission of improper evidence;

2d. A variance between the charge and the evidence ;

3d. Improper instructions;

• 4th. Lack of evidence to support a conviction.

The defendant was not sworn, and his defense, as indicated by the instructions which he requested and his cross-examination of the State’s witnesses, is that - the beverages which he sold were not intoxicating.

OPINION.

I. The evidence of statements made by the defendant’s grandson are admissible, because made in the presence and hearing of defendant at a time when he was not under restraint or duress, and his failure to deny such statements at the time raises the presumption that they were true. [State v. Walker, 78 Mo. l. c. 388; State v. Swisher, 186 Mo. 1.]

The evidence of Marshal Oalbraith that he believed defendant guilty, was improper, but its admission does not constitute reversible error, because not objected to by defendant and because no effort was made by defendant to have it stricken out or withdrawn from the jury.

II. The alleged variance between the charge and the evidence is not an error of which defendant can now complain. His motion for a new trial raises no snch issue, and it is the special province of the trial court to pass on matters of variance. [See. 5114, R. S. 1909; State v. Crow, 107 Mo. l. c. 345.]

III. The instructions; on behalf of the State, as well as the one given on behalf of the defendant, required the jury, before it could convict, to find that the beverage sold by defendant was an intoxicating liquor; and were therefore more favorable to the defendant than the law demanded. The instructions correctly announced the law, except that they cast upon the State a greater burden than the law required; but the defendant can not complain of an error committed in his favor. [State v. Stewart, 90 Mo. 507; State v. Hunter, 181 Mo. l. c. 337.] In a prosecution of this character, it is only necessary for the State to prove that defendant sold a beverage which contained' some percentage of alcohol, however small; and it is wholly unnecessary to furnish proof that such beverage would intoxicate those who drank it. [Sec. 7243, R. S. 1909; State v. Martin, 230 Mo. 1.] The words “intoxicating liquor” as used in the Local Option Law of our State embrace every kind of beverage which contains any percentage whatever of alcohol; and statutes and decisions of other states defining such words in a different manner are no longer authority in Missouri. [State v. Hanson, decided at this term, and reported at page 583 of this volume.]

IV. There is substantial evidence on the part of the State that the beverage sold by the defendant to witness Lewis Minor not only contained alcohol, but was of a quality which would intoxicate.

The record of the trial court contains no reversr ble error, and its judgment is therefore affirmed.

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


author: FERRISS;, J.

text:
    THE STATE v. HENRY COUNTS, Appellant.
    Division Two,
    May 23, 1911.
    CIRCUMSTANTIAL EVIDENCE: Consistent With Defendant’s Innocence. Where the evidence is wholly circumstantial, and all the facts testified to are consistent with defendant’s innocence, the court shoud sustain a demurrer to the State’s case. In this case there was no substantial evidence of defendant’s guilt of stealing the hogs.
    Appeal, from Shannon. Circuit Court. — Eon. W. A. Evans, Judge.
    'Reversed.

      Orchard & Gunmngham and Arthur T. Brewster for appellant.
    (1) The court erred in refusing to give defendant’s peremptory instruction offered at the close of the evidence for both State and defendant. There is no evidence that the hogs killed and carried away by the defendant were the property of the prosecuting witness. Criminal intent is the principal element of the offense of larceny, whether the offense be grand or petit larceny. It is often difficult to draw the line between theft and mere unlawful conversion. If one takes property of another and converts it to his own use, but takes it in good faith under color of a rightful claim, he is not a thief, but an honest wrongdoer, and his liability is civil and not criminal. State v. Claybaugh, 138 Mo. App. 364; State v. Zehnder, 228 Mo. 326; Witt v. State, 9 Mo. 672; State v. Matthews, 20 Mo. 57; State v. Weatherman, 202 Mo. 9; State v. Cray, 37 Mo. 463; State v. Rutherford, 152 Mo. 124; State v. Little, 170 Mo. 13.
   FERRISS;, J.

— On January 15, 1910, the prosecuting attorney of Shannon county filed an information in the circuit court of said county charging the defendant, together with John, Tucker and Arvy Counts, with feloniously stealing, taking and carrying away four hogs, the property of J. C. Ferguson. Upon application of the defendant, a severance was granted, and he was tried separately, found guilty as charged, and sentenced to two years in the penitentiary.

The State introduced evidence tending to show that J. C. Ferguson, the prosecuting witness, owned ten hogs which he allowed to run at large in the woods, not far from where defendant’s father resided. Ferguson missed five of his hogs — a reddish sow, weighing about 150 pounds, and four younger hogs, one of which was a boar. Excepting the sow, the hogs were all marked in the ear. Some boys sent by Ferguson to look for the missing animals reported to him that some hogsi had been killed near a deserted cabin. Ferguson went to the place mentioned and found'there the entrails of four hogs, also hogs’ hair which looked like that of his hogs. Upon being asked to describe the four hogs which the defendant was charged with stealing, he answered, “I couldn’t tell you.” He further testified that he did not know who got or killed his hogs>.

John Dixon, a witness for the State, testified that he saw, near the cabin referred to, the entrails of four hogs,.and some yellow, white and black hogs’ hair; that he could not identify the hair as that of Ferguson’s hogs, and that defendant and other people had hogs running in that immediate neighborhood.

W. E. Barton, another witness for the State, testified that in January, 1910, he was visiting at the home of Riley Counts, defendant’s father. While there the defendant and John and Arvy Counts told him that they were going to hunt for and kill the defendant’s hogs. They left the house on Friday and returned the following Monday. Next morning the witness saw part of a dead hog sticking ont of a wagon near the house. Witness said to Arvy Counts, “I thought you didn’t get anything while you were over there, ’ ’ to which the other replied, “It is best to keep our mouths shut.” These statements were not made in the presence and hearing of the defendant. Riley Counts purchased a killed and dressed hog from the defendant for five dollars. On the head of the hog witness noticed some sandy-colored hair. A portion of this'hog was after-wards cooked and witness ate of it. The meat smelled strong which indicated to the witness that the animal was a boar.

The sheriff who arrested defendant testified that the defendant first told him that he killed but three hogs, and afterwards, upon being questioned, stated that he killed a fourth hog, the hair of which was of a sandy color, and that defendant said the hogs killed were all his own.

Defendant testified that he had been living in Reynolds county for about four months; that before going to that county he owned forty-five hogs, six of which he sold to Carroll Counts. He returned to Shannon county to kill some of the hogs he left there, stopped at his father’s house, and hired John Counts and his brother, Avery, to go with and assist him in hunting for and killing his hogs. They found and killed five hogs, only one of which was marked on the ear. One was a boar with red and black hair, the hair on the others being mostly black. The hogs were wild and were hunted with dogs and guns. Twenty-one shots were fired before the hogs were killed. The killing was done about noon on Saturday. Defendant and his assistants cleaned and dressed the hogs and put them on the roof of the cabin, where they remained exposed until Monday morning, when they were loaded on defendant’s wagon and hauled to his father’s house. Defendant sold one of these dressed hogs, the boar, to his father, and took the others to Reynolds county. He stated that there was no effort made to conceal the killing of the hogs, and that the shooting was done within two hundred yards of a road.

Irb. Williams testified for defendant that he knew defendant owned ten or twelve hogs the preceding October; and that he sold six of them to Carroll Counts. This testimony was corroborated by the said Counts, who also testified that defendant engaged to sell him twenty-five hogs, that he brought him fifteen or sixteen of these, but did not bring ten others which he promised to sell him. Another witness or two testified to the fact that defendant owned some hogs.

The evidence of some of defendant’s witnesses was to some extent impeached by two witnesses introduced by the State in rebuttal.

At the close of the State’s case defendant requested an instruction in the nature of a demurrer to the evidence, which was refused, defendant excepting.

The peremptory instruction asked by defendant at the close of the State’s evidence should have been given. The evidence is wholly circumstantial, and all the facts testified to are consistent with defendant’s innocence. The judgment is reversed, and the defendant discharged.

Kennish, P. J., and Bronm, J., concur.