text:
    THE STATE ex rel. ST FRANCOIS COUNTY BUILDING & LOAN ASSOCIATION v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals.
    Division Two,
    June 23, 1921.
    1. MECHANIC’S LIEN: Itemized Statement: Contract Price. Where the proof shows that a definite price had been agreed upon between the contractor and the owner for a completed structure, it is not necessary, in order to entitle the contractor to a mechanic’s lien, to set out the items of the various materials furnished and labor performed in complying with the contract; but a statement of the fact of such contract having been made at a definite price and performed is a sufficient account of the demand under the statute. [Distinguishing Rude v. Mitchell, 97 Mo. 365, and holding that the opinion of the Court of Appeals in so ruling does not conflict with previous decisions of the Supreme Court.]
    2. -:--: -: Contractors and Sub-Contractors. The opinion of the Court of Appeals in this case makes no distinction between original contractors and sub-contractors, and does not rule that as between the original contractor and the owner the same definiteness as' to itemization in the lien claim is not required as in that of a claim by a sub-contractor or others, and therefore the opinion does not conflict in this respect with Rude v. Mitchell, 97 Mo. 1. c. 374, or Mitchell Planing Mill Co. v. Allison, 138 Mo. 1. c. 55.

      C ertiorari.

    Writ quashed.

      Jerry B. Buries for relator.
    (1) .The opinion of the learned Court of Appeals in holding: 1st, that the first two items of the lien claim or account filed by plaintiff, was sufficient without specifying any of the material or labor; 2nd, that an original contractor with the owner was not required to make his lien claim as specific and definite as sub-contractors; 3rd, that if the lien claim was as definite as the contract under which it is furnished, it is sufficient; and, 4th, that these principles may be applied even where the rights of a third party or creditors are involved, is absolutely contrary to and in defiance of the principles of law set forth by this court in Rude v. Mitchell, 97 Mo. 372; Grace v. Nesbitt, 109 Mo. 19; Mitchell Planing Mill Co. v. Allison, 138 Mo. 58; State ex rel. O’Malley v. Reynolds, 266 Mo. 597. (2) The learned court refers to the contract as being an aid of the lien account. As to this we will say that the contract was not filed with the lien claim and therefore cannot aid same. The lien claim must stand or fall on its own merits. Coe v. Ritter, 86 Mo. 287; O’Shea v. O’Shea, 91 Mo. App. 231.

      J. P. Cayce and Wm. M. Fitch for respondents.
    (1) This decision is not in conflict with the last decisions of this court, but on the contrary it is in harmony with the principles of law set forth in the following decisions: Hilliker v. .Francisco, 65 Mo. 598; State ex rel. O’Malley v. Reynolds, 266 Mo. 595; Grace v. Nesbitt, 109 Mo. 9; Mitchell Planing Mill-v. Allison, 138 Mo. 50. Neither is it in conflict with the decision in Rude v. Mitchell, 97 Mo. 365, for the reason that the lien claim in that case was based upon a quantum meruit, while the claim in the instant case is based upon an express contract “to do an entire job, by the job, and 'for an entire price,” and for that reason the statements in the opinion in Rude v. Mitchell do not apply to the case at bar. (2) Where the work was done or the materials furnished under a contract with the owner for a specified sum, the contract being entire, it is not necessary that the claimant in his lien statement itemize liis account. Mechanics Liens, 27 Cyc. 188; 2 Jones on Liens (3 Ed.), sec. 1406, p. 634; Rockel on Mechanics Liens, sec. 116, p. 309; Hilliker v. Francisco, 65 Mo. 598; Grace v. Nesbitt, 109 Mo. 9; Mitchell Planing Mill v. Allison, 138 Mo. 50; Marshall v. Hall, 200 S. W. 774; Brick Co. v. Const. Co., 177 Mo. App. 573; Basso v. Fette, 55 Mo. App. 453; Kern v. Praif, 44 Mo. App. 34; Mahan v. Brinnell, 94 Mo. App. 165. (3) The Court of Appeals did not decide “that an original contractor with the owner was not required to make his lien claim as specific and definite as sub-contractors.” It did say, that “when the lien is filed by the original contractor who has specifically agreed with the owner to do the job for a certain price a detailed statement is not required, as the owner knew what he bargained for when he agreed on the price.” That statement is quoted from Mahan v. Brinnell, 94 Mo. App. 165, and it has never been contradicted by the Supreme Court. Also, the Court of Appeals did say: “We think this account was such a statement of the claim as fairly appraised the owner and the public of the nature and amount of the demand asserted as a lien, and if it was such, then it was sufficient. ’ ’ That statement is in accordance with the rule -of laAv announced in Mitchell Planing Mill v. Allison, 138 Mo. 1. c. 56, and it has never been contradicted by the Supreme Court. (4) There is no subcontractor. in this suit, and any statement if made by the court, in regard to a sub-contractor’s claim, would be obiter. The statute' does not require the lien claimant to file an “itemized” account of his demand, but he is required to file a “just and true” account. ■ Sec. 7221, R. S. 1919. “The account may consist-of one or more items.” Mitchell Planing Mill v. Allison, 138 Mo. 56.
   DAVID E. BLAIR, J.

This is an original proceeding hy writ of certiorari against respondents as Judges of the St. Louis Court of Appeals, wherein our constitutional authority is invoked to determine whether an opinion delivered hy respondents is in conflict with certain decisions of this court.

The case of McCarthy Lumber & Construction Company, Respondent, v. Lee F. Kinder, Eva Kinder, St. Francois County Building & Loan Association (relator here) and Oscar L. Haile, appellants, came to the St. Louis Court of Appeals hy appeal from the St. Francois County Circuit Court. •

A.s appears from the opinion of respondents, Kinder and wife made a contract with McCarthy Lumber & Construction Company for the erection of a house on a lot owned by them. The contract was evidenced by a letter. So much of it as is of importance here is as follows :

"Prof. L. F. Kinder,

Farmington, Mo.

"Dear Sir:

“We propose to furnish all labor and all the material required for the erection & completion of your 1 story bungalow dwelling in accordance with the plans and specifications that we have prepared for the same, for the sum of $2,480.

"It is understood that you wish to omit the brick fire place from this building, consequently we will deduct the sum of $104 for this omission, making net contract of $2,376.”

Relator furnished the money for the erection of the house and took a deed of trust from the Kinders. The construction company erected the house in accordance with the contract, and the Kinders failed to pay the full contract price and for certain extras, leaving an unpaid balance of $960.19. Thereupon and in due time the construction company filed with the circuit clerk an account of its demand, in which the first two items are as follows:

“Oct. 15/15 To contract for erection of residence as agreed including’ the omission of fire place flue and foundation for same ............... $2,376.00

“25 To enlarging basement as agreed ................ 64.00”

The contract for enlarging the basement was made subsequent to the building contract, but was a complete and separate agreement. The other items of the account covered the extras, and the sufficiency of the statement as to them is not in dispute. There were about fifty items of such extras set out in said account.

Upon the trial of the suit filed to enforce such lien, defendants objected to the introduction of the lien account, for the reason it was not a true and correct account of the demand within the meaning of the Mechanic’s Lien Statute (Sec. 7221, R. S. 1919), because the first two items do not state the nature of the work done or material furnished or items thereof. On appfeal respondents held the lien account to be sufficient, and that the contractor did not need to set out these items with any greater particularity than they were stated in the contract. The opinion held:

“We think this account was such a statement of the claim as fairly apprised the owner and the public of the nature and amount of the demand asserted as a lien, and if it was such then it was sufficient. ’ ’

In arriving at this conclusion respondents said:

“By reference to the terms of the contract it will be noted that the statement is as definite as the contract, and a lien statement which is as definite as the contract under which it is furnished is sufficient, and if a lumping price was agreed upon no other.price could have been specified, so that the account would have been a just and true one. [Grace v. Nesbitt, 109 Mo. 9, 18 S. W. 1118.]

“Defendants contend, however, that even though the price could be a lump price, yet the items going to make up the whole for which the lump sum is charged, should be set out.”

Eelator contends such ruling is in conflict with certain designated controlling cases decided by this court, to-wit: Eude v. Mitchell, 97 Mo. 365, l. c. 372-3; State ex rel. O’Malley v. Reynolds, 266 Mo. 595, l. c. 598-9; Grace v. Nesbitt, 109 Mo. 9, l. c. 18-19; Mitchell Planing Mill Co. v. Allison, 138 Mo. 50, l. c. 54-5-6-8.

It was said by Black, J., in Eude v. Mitchell, supra: “Many things are often included in these building contracts for which the law gives no lien; and when it calls for a just and true account, it means a fairly itemized account showing what the materials are, and the work that was done, and the price charged, so that it can be seen from the face of the account that the law gives a lien therefor. A lumping item of the whole contract price on the one hand, and the credits on the other, is no compliance with the law at all. The account should be complete on its face, and a reference to the plans and specifications for the work done and materials furnished is a worthless reference and adds nothing to the statement. These liens are creatures of the statute, and the lienor must make and file an account which is a fair and substantial compliance with the law. If lie fails to do this he has no lien for the materials and work not thus specified.”

A reference to the facts stated shows the contract price was not agreed on and the suit was on quantum meruit. The sufficiency of a lien account covering in one item a charge for a complete structure at a price fixed by contract was not determined in the Eude case. What was said therein concerning a lumping item of the whole contract price not being a compliance with the law, was not necessary to the decision in that case.

In State ex rel. O’Malley, Admr., v. Reynolds, supra, was a proceeding by writ of certiorari in which, the sufficiency of a lien account was involved. Blair, J., said: “The real objection relator makes to' the lien account is that the account does not sufficiently set out the character of the materials furnished; and the sole question this objection presents, when the Court of Appeals’ statement of facts in this connection is analyzed, is whether a description of materials furnished when made in abbreviations and trade terms is a compliance with the statutory requirement that a ‘just and true account of the demand’ shall be filed. [Sec. 8217, R. S. 1909.] . . .

“That this sort of description of the materials is, in such circumstances, sufficient under the statute (Sec. 8217, R. S. 1909) we have no doubt, and so held in the Plitt case.”

The question of the sufficiency' of a statement setting forth in one item a lump sum for work done under contract was not involved. The opinion of respondents is not in conflict with anything'said in the O’Malley case.

In Grace v. Nesbitt, supra, the lien account did not put a value upon each item of materials. The items themselves were .set out and the price was a lump sum. The court said:

“The materials were bought in a lump for an entire price, and this appears from the account filed. In such case no detailed statement of the values of items could have been given more accurately than as an estimate-which could have been made as well by the owner. What the owner wanted to know was the price paid, so he could not be charged more.”

In Planing Mill Company v. Allison, supra, the sufficiency of a lien statement, which omitted the dates of the various items, was involved. Barclay, J., at page 58, said:

“There was an objection in the trial court to the lien paper on the ground that there is a so-called ‘lumping charge’ in it. That objection is not well founded. It does not appear that any item included in that charge represents anything that may not properly be made the subject of a lien under our law. If the contract of the subcontractor was to supply for the building a certain group of articles, for a certain price, there is no valid objection to his reciting those articles and then stating that one price in his claim, as was done in the case at bar. ’ ’

This case does not hold that it is necessary to set out separately all the items included at one contract price. It merely approves a lien account in that form. The> contract embraced a group of articles for a building and not a complete building.

There is no languages used by this court in any of the case designated with which the opinion of the Court of Appeals can be said to bo in conflict, unless it is the Rude case.

Hilliker v. Francisco, 65 Mo. 598, is one of the cases upon which respondents base their opinion. In that case this statement was held sufficient: “To Junction City Stone furnished First National Bank, as per contract, $7,790.. ” Henry, J., at' page 603, said: “The account filed with the clerk, under the circumstances, was specific enough. The only item about which there can be any doubt is the first, for stone furnished bank building as per contract, etc. There was evidence tending to show, not only that the bank was appraised of the terms of the contract between the contractors and plaintiffs, but had agreed with the contractors to the sum of $7,000, as compensation to plaintiffs for the labor and materials mentioned in the first item.”

In discussing and distinguishing the Hilliker case, Judge Black, in his opinion in the Rude case, at page 373, said: “In Hilliker v. Francisco, 65 Mo. 599, the first item of the account was in these words: ‘ To Junction City Stone furnished First National Bank as per contract, $7,790.’ The suit was one by the sub-contract- or, and there was evidence to show that the bank had agreed with the contractor to the snm of seven thousand dollars as compensation to the plaintiffs for the material and labor mentioned in the item. Under these circumstances it was held that the item was sufficiently specific. The item there in dispute, it will be seen, related to the stonework and labor of setting only, and the price is given. In the present case the first item is for $22,287, and there is nothing to show, on the face of the account, what is, or what is not, intended to be included. The Hilliker case furnishes no authority for upholding the account filed in this case, and that case goes to the verge of the law.”

In spite of what Judge Black said as to the Hilliker case going to the verge «of the law, that case has been repeatedly cited with approval in other cases, and it has been clearly distinguished from the Rude case. [Busso v. Fette, 55 Mo. App. 453; Kern v. Pfaff, 44 Mo. App. 29; Mahan v. Brinnell, 94 Mo. App. 165.]

In the Rude case the necessity of particularity is apparent, because no specific contract for the work had been made, and this distinguishes that case from the Hilliker case. The rule laid down appears to be sound.

"Where the proof shows that a definite price has been agreed upon between the contractor and the owner for a completed structure there is no need to set out the items of the various materials furnished and the labor performed in complying with such contract, and a statement of the fact of such contract having been made at a definite price and performed is a sufficient account of the demand under the statute as to that item. We.therefore hold that the opinion of respondents in this respect is not in conflict with the cases designated by relator.

Relator contends that the opinion of respondents holds that as between the original contractor and the owner the same definiteness as to the lien claim is not required as that on the part of sub-contractors and others, and in this holding the opinion conflicts with Rude v. Mitchell, 97 Mo. l. c. 374, and Mitchell Planing Mill Co. v. Allison, 138 Mo. l. c. 55. Eelator apparently is mistaken. No such ruling appears in said opinion. Eelator probably refers to the following language included in a quotation we have hereinabove made from the opinion:

“But this court held, in Mahan v. Brinnell, 94 Mo. App. 165, 67 S. W. 930, that when the lien is filed by the original contractor, who has specifically agreed with the owner to do the job for a certain price, a detailed statement of the items of material and labor that entered into the improvement is not required.”

The language there used was in reference to what was decided in another case, and the language referred to makes no distinction as between original contractors and sub-contractors.

It therefore appears that our writ heretofore issued should be quashed and it is so ordered.

All concur.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    RUSSELL E. BURTON, Appellant, v. BENJAMIN N. BURTON et al.
    Division Two,
    June 23, 1921.
    1. JUDGMENT: Correction. The power of a court, at a subsequent term to correct or amend its judgment is limited to cases in which there has been an omission to enter such a judgment as the court actually rendered.
    2. -: -: Nunc Pro Tunc Entry. Where the court has omitted to make an order or'judgment which it might or ought.to have made, a correction at a subsequent term, by nune pro tune entry, must be based on the judge’s minutes, the clerk’s entries or some papers on file in the case, afid not upon the judge’s recollecl^on of what took place at the trial or upon outside evidence. , ,. „

      3. -:-: • — ■——: Will and. Codicil. Where the probate court had admitted a will to probate but rejected a codicil, and upon a contest in the circuit court a decree was rendered sustaining the will, but making no reference to the codicil, a judgment nunc pro tuno amending the decree to embrace the codicil cannot be rendered at a subsequent term, the attestation of the codicil not being tried in the will contest, and there being nothing in the judge’s minutes, the clerk’s entries or the flies in the case to indicate any other decree was rendered or that the clerk failed to enter up the right judgment.
    Appeal from Howard Circuit Court. — Hon. Charles T. Hays, Special Judge.
    Affirmed.

      Paul P. Prosser, A. H. Waller and M. J. Lilly for appellant.
    (1) The policy of entering judgments and decrees nunc pro tunc is agreeable to the maxim, Actus curiae neminem gravabit; an act of the court shall prejudice no one. Freeman on Judgments (4 Ed.) sec. 56; Broom’s Legal Maxims (7 Ed.), pp. 97-98. (2) “The office of a nunc pro tunc entry is to supply an omission in the record of actions really .had but omitted through inadvertence or mistake. ’ ’ State ex rel. v. Bird, 108 Mo. App. 168. (3) The rendition of a judgment is a judicial act; its entry upon the record is a mere ministerial act, evidencing the judicial act, but not essential to its validity, and giving to the judgment no additional force dr efficacy. Fountaine v. Hudson, 93 Mo. 70; Kansas City Pump Co. v. Jones, 126 Mo. App. 540; Kriesol v. Snavely, 135 Mo. App. 158. (4) “And where the clerk, either by design or mistake, failed to record the judgment actually rendered, the court may alter the memorial of the judgment to make it express the sentence pronounced, provided the record entries furnish the evidence to support the correction.” Kriesel v. Snavely, 135 Mo. App. 158; Robertson v. Neal, 60 Mo. 580; Henry County v. Salmon, 201 Mo. 151; Gibson v. Chouteau’s Heirs, 45 Mo. 172; Farris v. Burchard, 262 Mo. 342; Loring v. Groomer, 110 Mo. 639; Martin v. Brown, 162 Mo. App. 228. (5) A minute in the judge’s docket may, of itself. afford a sufficient basis on which to make such an entry. Fletcher v. Coombs, 58 Mo. 434; Robertson v. Neal, 60 Mo. -580; Henry County v. Salmon, 201 Mo. 151; Railroad v. Mockbee, 63 Mo. 350; Stimson v. Mining Co., 264 Mo. 190, 204; Farley Bros. v. Cammann, 43 Mo. App. 173; Pub. Co. v. Allen, 134 Mo. App. 232; State ex rel. v. Goodrich, 159 Mo. App. 425. (6) In the instant case, the minute entered by the court in the judge’s docket was not any mere informal memorandum of the court’s action. It was the actual verdict of the court sitting as a jury, entered by the judge thereof in his own handwriting, and was, of itself, under the pleadings, sufficient tó establish the entire will without any formal entry of judgment. Secs. 4622 and 4623, R. S. 1899; Gordon v. Burris, 141 Mo. 610. (7) “It is not necessary that the records of the court should show, in order to enable it to direct a judgment nimc pro tunc, in express terms that such judgment had been rendered. If the facts shown by the records are such as' to really and fairly carry conviction that the judgment was in fact rendered, that is sufficient. Witten v. Robinson, 31 Mo. App. 534; Williams v. Walton, 84 Mo. App. 441; Dawson v. Waldheim, 89 Alo. A.pp. 250'; Sperling v. Stubble-field, 105 Mo. App. 494; State v. Bush, 136 Mo. App. 613; Railroad v. Mockbee, 63 Mo. 350 ; Henry County v. Salmon, 201 Mo. 151; 1 Freeman on Judgments (4 Ed.), sec. 61, p. 80. (8) The will and the codicil were but one instrument, constituting together the last will and testament of Benjamin E. Nance. Sec. 4647, R. S. 1899; Wells v. Fuchs, 226 Mo. 104; Kelley’s Probate Guide (4 Ed.), sec. 4, p. 3; 1 Underhill on Law of Wills, pp. 11, 12; 3 Alexander’s Commentaries on Wills, sec. 1311, p. 2018; Page on Wills, sec. 314. (9) “A properly executed codicil which is attached to a will, or which refers to it specifically, as by its date and contents, acts as a republication of the will as of the date of the codicil. ’ ’ ' Page on Wills, sec. 307; Harvey v. Chouteau, 14 Mo. 587; Kelley’s Probate Guide (4 Ed.), sec. 61, p. 53. ’(10) The institution of the suit to contest the will, aulomatically divested the probate court of its jurisdiction in the premises, and its subsequent order in rejecting the codicil was a nullity. This has always been the law in Missouri. Dickey v. Malechi, 6 Mo. 182; Harris v. Hays, 53 Mo. 94; Lamb v. Helm, 56 Mo. 432; State ex rel. v. Guinotte, 156 Mo. 519; Hogan v. Hinchey, 195 Mo. 533; State ex rel. v. Imel, 243 Mo. 186.

      John Cosgrove and B. M. Bagby for respondents.
    (1) Concerning the authority of a circuit court to correct ■ its record by nunc pro kmc entries the rule seems to be that, in order to justify the court in so doing, the record must in some way show, either from the judge’s minutes, the clerk’s entries, or some paper in the cause, the facts authorizing such entries. No such entries can be made from the memory of the judge, nor on parol proof derived from other sources. Ross v. Railroad, 141 Mo. 395; State v. Libby, 203 Mo. 598. (2) An entry nunc pro tunc may be entered when there is record evidence in the cause clearly showing that the judgment entered by the clerk was not.the judgment pronounced by the court. But where the court has omitted to make an order, which it might' or ought to have made, it cannot; at a subsequent term, be made nunc pro tunc. And if the court renders a judgment which it intended to render, it has no authority at a subsequent term to change such judgment by rendering one that was not in fact rendered, even though it may subsequently be discovered that some error of law was committed in the rendition of such original judgment. Gibson v. Chouteau’s Heirs, 45 Mo. 173; Board v. Drummond, 167 Mo. 54; Beclier v. Denser, 169 Mo. 159; Wooldridge v. Quinn, 70 Mo. 370; Davidson v. Davidson, 207 Mo. 708.' (3) The will and the codicil were two different instruments. The witnesses to the will were not the witnesses to the codicil, and, therefore, two instruments had to be probated or rejected. The entry made by the jhdge in the circuit court who tried the contest case makes no reference to the codicil and refers to the will, only. The witnesses to the alleged codicil, were not summoned, nor did they testify in the will contest case in the circuit court. • The codicil was not adjudicated at all. There was no evidence on which any adjudication was or could have been placed upon it. There is absolutely nothing in the papers or the records of the circuit court to show that the codicil was ever brought before it. Without such showing no nimc pro tunc entry could have been made. Railway Co. v. Holschag, 144 Mo. 253; State ex rel. v. Ellison, 210 S. W. 403. (4) The action of the judge and ex-officio clerk of the Probate Court of Howard County in admitting the will and codicil of Benjamin E. Nance to probate on the 3rd day of June, 1902, did not establish either the will or the codicil, and such act was not proof of either of said instruments until ratified by the court in term time. R. S. 1919, .sec. 517; Smith v. Estes, 72 Mo. 312; Tarris v. Burchard, 242 Mo. 8.
   WALKER, J.

This is a companion case to State ex rel. Burton v. Bagby, ante page 482, decided at this term, and should be read in connection with same.

That suit was by mandamus to compel the probate Court of Howard County to probate or reject a codicil to the will of one Benjamin E. Nance. The Circuit Court of Howard County dismissed the relator’s petition in that proceeding, thereby refusing to grant the peremptory writ and, upon appeal, we affirmed its judgment.

In the instant case, Russel E. Burton, the relator in the mandamus proceeding, brought suit against the other legatees of the will of said Nance to have the Circuit Court of Howard County, by a nunc pro time entry of record, amend a judgment rendered in a suit to contest the will of said Nance, which had been brought and determined in the Circuit Court of Howard County and had resulted in a decree sustaining the will. The purpose of the instant suit is to amend the judgment in the will contest case, that the same may show that the paper writing found in said proceeding to constitute the will included not only the will itself as set forth at length in the decree in that suit, but embraced as well the codicil which it was prayed should also be set forth in the decree. The respondents, for their answer to said petition, admitted that the will and codicil were both admitted to probate by the judge and ex-offlcio clerk of the Probate, Court of Howard County in vacation, but that afterwards said court in term time confirmed the action of the court in vacation, under Section 517, Revised Statutes 1919, as to the probating of the will, but rejected the same as to the probating of the codicil. After setting forth the order of the probate court in that behalf, it is alleged that the decree of the circuit court does not contain- any reference to the codicil, but states that said decree is regular and that the allegations therein, as to its regularity and the propriety of its findings are, in every respect, correct; and the authority of the court to make the proposed amendment is denied on account of the alleged lack of evidence of any clerical error or other mistake or irregularity on the part of the court; that the circuit court at the time had 'jurisdiction of the subject-matter and the persons, and that the' same is final. The reply sets up the order of the probate court rejecting the codicil and pleads the filing of the will contest which it is alleged consisted of the original will and codicil thereto annexed, and that in consequence thereof the jurisdiction of the subject-matter, namely the will, was divested out of the probate court and vested in the circuit court, and that the order of the probate court rejecting the codicil was void; that the testimony of the witness that he did not attest the codicil in the presence of the testator was false and was procured through fraudulent means; that in fact, he did subscribe to said codicil in the presence of the testator and of others.

After the hearing’ of testimony, documentary and otherwise, and the disposition of dilatory pleas, not necessary to be particularly referred to here, the court found from the minutes, files, court records and other proper evidence that the decree rendered in the will contest correctly sets forth, in its entirety, the findings and the judgment rendered by the circuit court in the will contest and plaintiffs petition was dismissed. Prom this ruling and judgment he appeals.

I. There was no evidence of misrepresentation or fraud in the rendition or entry of the judgment herein; it conformed to the pleadings, and emphasis was to its t°rmal correctness by the incorporation therein of the will and the omission therefrom of the codicil. Plaintiff, therefore, under the allegations of his petition must be limited in his application for the correction of the error as to mistake or, as archaically expressed, misprision.

. While a court has power at a subsequent term to correct or amend its judgment, this power is limited to cases where there has been an omission to enter such a judgment as the court actually rendered. The correction thus made may result in an amendment' of the judgment as entered by the clerk, but after all it amounts to nothing more than the correction of a clerical error or omission and the consequent entry of the judgment as really rendered. This power has been recognized from the earliest times and frequent instances of the exercise of same are found in our reports. [Hanly v. Dewes, 1 Mo. 16; Hickman v. Barnes, 1 Mo. 156; Mullanphy v. Phillipson, 1 Mo. 188; Hyde v. Curling, 10 Mo. l. c. 363; Harrison v. State, 10 Mo. l. c. 689; State v. Clark, 18 Mo. 432; Stacker v. Cooper Circuit Court, 25 Mo. 401; Robertson v. Neal, 60 Mo. 579; Davison v. Davison, 207 Mo. 702.] Such amendments as are here authorized, are within the purview of the statute, Sec. 1277, Revised Statutes 1919.

Wherever, therefore, the clerk has failed to enter up a judgment or enters up a wrong judgment and the order is sought simply that the proper entry may be made the power may be exercised; but, when the court has omitted to make an order which it might or ought to have made,-it cannot be made at a subsequent term by a nunc pro time entry. [Gibson v. Chouteau’s Heirs, 45 Mo. 171; Turner v. Christy, 50 Mo. 145; Priest v. McMaster, 52 Mo. 60; Dunn v. Raley, 58 Mo. 134; Fletcher v. Coombs, 58 Mo. 430; State ex rel. Graves v. Primm, 61 Mo. 170; Wooldridge v. Quinn, 70 Mo. l. c. 371; Belkin v. Rhodes, 76 Mo. l. c. 651; Ross v. Railroad, 141 Mo. l. c. 395.]

In the exercise of this power the action of the court must be based on the judge’s minutes, the clerk’s entries or some papers on file in the case, and not upon the judge’s recollection of what took place at the trial or upon outside evidence. [Saxton v. Smith, 50 Mo. 490; Priest v. McMaster, 52 Mo. 60; State v. Jeffors, 64 Mo. 376; Fetters v. Baird, 72 Mo. 389; Belkin v. Rhodes, 76 Mo. 643; Mo. Ry. Co. v. Holschlag, 144 Mo. 253; Young v. Young, 165 Mo. 624; Williams v. Sands, 187 S. W. 1188; In re Fulsome’s Est., 193 S. W. l. c. 620; State ex rel. Aiken v. Buckner, 203 S. W. 242.]

This record nowhere discloses any omission from the judge’s minutes, the clerk’s entries or- any paper filed in the case which would authorize the nunc pro tunc entry prayed for by the plaintiff; nor, in fact, does the evidence aliunde afford any proof of such error. It is sufficient, however, for the determination of this case that there is an absence of error in the minutes, files or record entries, and the action of the circuit court in overruling plaintiff’s application is sustained, which results in an affirmance of the judgment.

All concur.


author: RAILEY, C. PER CURIAM:

text:
    THE STATE v. FRANK STOKES, Appellant.
    Division Two,
    June 23, 1921.
    1. DEFENDANT AS WITNESS: Interpretation of Statute. It is difficult to lay down any positive rule which will apply in the interpretation of the statute (Sec. 4036, R. S. 1919) declaring that the defendant in a criminal case shall he liable to cross-examination as to any matter referred to in his examination in chief, and may he contradicted and impeached as any other witness in the case. Its application must he determined in each case by its own facts. .
    2. -: Cross-Examination: Immaterial Matters. The cross-examination of a defendant concerning matters which are not material to any issue in the case and whereby he is not injured is not reversible error.
    3. -: -: Seduction: Movements. Where defendant had testified that he had at on.e time before the alleged promise of marriage found prosecutrix and another young man lying on a pallet, in her parents’ home, during their absence, at three o’clock in the afternoon, the trial court did not err in requiring him to testify on cross-examination that he thereafter frequently visited her and that she asked him to marry her.
    4. --: -: Conviction of Other Crimes. On the trial of a defendant charged with seduction it is not error, in view of the language of Section 5439, Revised Statutes 1919, to compel him to testify whether or not he was convicted when about fourteen years of age for stealing watermelons, that he was convicted of carrying a pistol, and that he was convicted for fighting. [Distinguishing State v. Beckner, 194 Mo. 281.]
    5. -: -: -: Instruction. It is not the duty of the court to instruct the jury that they can consider the evidence of defendant’s former conviction of other crimes, admitted as evidence tending to affect his credibility as a witness, only for the purpose of discrediting his testimony and not as' tending to prove his guilt of the crime for which he is being tried, where defendant neither offers nor requests an instruction on the subject.
    6. INDICTMENT: Wrong Name. An indictment which twice names the defendant as “Prank Stokes” and once as “Prank Slokes,” where Prank Stokes was arraigned and entered his plea as the real defendant, made no attack upon the indictment before or during the trial and made no objection to the introduction of evidence on the ground . that there was a variance between his name and that of “Slokes” once mentioned in the body of the indictment, and the trial court did not find that the alleged vari- ■ anee was material to the merits of the case or prejudicial to the defense of defendant, is, under the statute (Secs. 3906 and 3907, R. S. 1919), sufficient to sustain a conviction of Frank Stokes charged with a felony.
    7. PRACTICE: Reopening Case: Seduction: Proof of Unmarried State. Where there was nothing in the testimony to indicate that prosecutrix, in the trial of defendant for seducing as* unmarried female under promise of marriage, had ever been married, but the testimony of all the witnesses left the impression that she was unmarried, it was not error to permit the State, after the case was closed and counsel for plaintiff had begun the argument to the jury, to prove that prosecutrix was single at the time of the'alleged seduction and that she had never been married.
    8. EVIDENCE: Seduction: Keeping Company With Other Boys. It was not error in the seduction case to refuse to permit a witness for the State, who had testified that the reputation of the prosecutrix for chastity and virtue was good, to further testify whether he had heard of her keeping company with other boys, the testimony showing that she had kept company with other boys prior to defendant’s alleged promise to marry her and the question as asked referring to that time as well as to subsequent time.
    9. ARGUMENT TO JURY: Not Preserved. Alleged improper remarks made by counsel for the State in his argument to the jury, which were not objected to, were not made a matter of record and are not contained in the transcript, cannot be considered on appeal.
    30. INDICTMENT: Indorsement by Foreman: Wrong Name. The panel of grand jurors contained the name of Rufus Moore, and the name Moore no where else appears therein. The indictment was indorsed by “R. L. Moore, foreman,” as a true bill. No motion to quash it was filed, nor was any objection to its sufficiency made during thé trial. Held, that it will be presumed that the trial court did its duty, as the statute requires, and found that Rufus Moore and R. L. Moore were one and the same person.
    11. VERDICT: Signed by Wrong Person. Where the list of jurors who tried the case contains the name of Arthur Paxton and the name Paxton no where else appears in the list, and no evidence appears to the contrary, it will be presumed that Arthur Paxton and A. A. Paxton are one and the same 'person, and that a verdict signed by “A. A. Paxton, foreman” is not defective.

      Appeal 'from Hickory Circuit Court. — Hon. G. H. Shin-leer, Judge.
    Aeimemed.

      W. A. Dollarhide and JD. Harris for appellant.
    (1) It is the well settled law that the defendant in a criminal trial cannot he cross-examined upon matters not referred to in his examination in chief. .State v. Pfeifer, 267 Mo. 30; Stale v. Kyle, 177 Mó. 659; State v. Grant, 144 Mo. 63; State v. Hathhorn, 166. Mo. 239; State v. Swearengin, 269 Mo. 185; State v. Drew, 213 S. W. 106; Sec. 5238, R, S. 1909; U. S. Constitution, 5th Amendment; State v. Bowman, 272 Mo. 500; State v. Goodwin, 271 Mo. 73; Art. II. sec. 23, Constitution of Missouri. The above rule was flagrantly violated and the above decisions entirely overlooked and ignored in the cross-examination of the defendant in this case. (2) Reversible error* was committed by the court in permitting the State to attack the defendant’s general moral character on his cross-examination, over the defendant’s objection and exception, as to offenses and conduct of the defendant which would not bear upon his credibility as a witness, the defendant himself not having opened up this issue by offer of proof of his good reputation on the traits of character involved in the improper cross-examination. State v. Beckner, 194 Mo. 293. Not one of these offenses reflected in any way upon the defendant’s reputation in his capacity as a witness. In his capacity as defendant he was protected from an inquiry as to these items by the State, not having himself opened up the subject by offering proof in regard thereto. State v. Nelson, 101 Mo. 464; State v. Smith, 125 Mo. 7; Kitteringham v. Dance, 580 Iowa, 634; State v. Shuster, 263 Mo. 600; State v. Wellman, 253 Mo. 314; State v. ITortoii, 247 Mo. 657. But even if the evidence objected to in the preceding point were admissible, then it became and was the duty of the court under the law and under the request of defendant’s counsel to instruct the jury to the effect that the jury could only consider his conviction on those other offenses as tending to discredit his testimony as a witness, and not as tending to prove him guilty of the crime for which he was then on trial. But this the court did not do, having failed to give any instruction on the subject. State v. Goode, 220 S. W, 854; State v. Wellman, 253 Mo. 318. (3) The indictment is fatally defective, in that it charges that one “Frank Stokes” did seduce and debauch one Chibe Durnell upon a promise of marriage made to her by Frank Stokes. State v. Stephens, 199 Mo. 261; State v. Manning, 168 Mo. 418; State v. Edwards, 70 Mo. 480; Kinney v. State, 21 Tex. 348,17 S. W. 423; Davis v. State, 60 Tex. Or. R. 108, 131 S. W. 315; State v. Martin, 10 Mo. 391; State v. Mitchell, 25 Mo. 420; State v. Ulinkenbeard, 135 Mo. App. 189. Nor is the name Slokes idem sonans with the name Stokes. The following names have been held not to be idem sonans: “Whelan” and “Wheler,” Whelan v. Weaver, 93 Mo. 430; “Miller” and “Millen,” Chamberlain v. Blodgett, 96 Mo. 482; “Grat” and “Goltz,” State v. Brown, 119 Mo. 527; “Graton” and “Grafton,” Grafton v. Tioliday-Klotz Land & Lumber Company, 189 Mo. 322; “Emma Burge” and “Emily Burge,” Burge v. Burge, 94 Mo. App. 15; “Mathews” and “Mather,” Robson v. Thomas, 55 Mo.- 581; “Mohr” and “Moores,” State v. Mohr, 55 Mo. .App. 325. (4) The sufficiency of an indictment may be raised by motion in arrest, and in this instance it was raised both by motion for new trial and in arrest. State v. Patterson, 159 Mo. 98; State v. Clark, 223 Mo. 51. The defect in the indictment may even be raised for the first time in this court. State v. Clark, 223 Mo. 51. It has been the uniform ruling of this court that in indictments nothing material may be taken by intendment or implication. State v. Patterson, 159 Mo. 101; State v. Clark, 223 Mo. 52. (5) The evidence wholly fails to make out a case of seduction. It is not enough that the State show that the female was debauched under a promise of marriage, but in addition thereto there must be the further shoving that the woman was deceived and drawn aside from the path of virtue, her affections gained and her mind polluted by arts and blandishments upon the part of the defendant. “Every illicit connection is not seduction.” State v. Reeves, 97 Mo. 675; State v. Mitchell, 299 Mo. 698. (6) The court committed reversible error in permitting the State to re-open the case after the State had closed its case and after the defendant had closed his defense, and after the court had submitted the case to the jury on the instructions, and after the prosecuting attorney had commenced his argument on behalf of the State, and after all the witnesses had been excused, by permitting the State to recall the prosecutrix, Chloe Durnell, and prove by her that she was single and unmarried at the time alleged in the indictment, all of which was done over the objection and exception of the defendant and at a time when it was highly prejudicial to the defendant. The defendant had ho way'at that stage of the proceeding to rebut the proof offered by the State. Sec. 4478, R. S. 1909; State v. Wheeler, 108 Mo. 658. (7) The third instruction given by the court is clearly insufficient, and inadequate to present the issue of corroboration to the jury, and is, in fact, misleading. This instruction told the jury that her testimony as to the' promise of marriage may be corroborated “by the continuous courtship for such a period of time as in the-course of ordinary affairs an engagement of marriage,” would be presumed to exist. It assumes that there, was such continuous courtship, when this was a controverted issue and fails to define the kind of courtship which will be sufficiently corroborative to justify the jury in finding a promise of marriage. State v. Wheeler, 108 Mo, '665.

      Jesse W. Barrett, Attorney-General, Robert J. Smith and R-. W. Otto, Assistant Attorneys-General, for respondent.
    (1) Defendant was not subjected to improper cross-examination, (a) The State may cross-examine a defendant upon any matter gone into in his examination in chief. State v. Mitchell, 229 Mo. 693; State v. Ivey, 192 S. W. 737; State v. Drew, 213 S. W. 106. (b) Conviction of other crimes may be proven by the defendant’s evidence on cross-examination. R. S. 1919, sec. 4036; Kelly’s Criminal Law and Practice, sec. 375; State v. Spivey, 181 Mo. 110; State v. Blitz, 171 Mo. 539; State v. Ilubbard, 223 Mo. 85; State v. Brooks, 202 Mo. 117. (c). An objection to the introduction of testimony where no sufficient reason is stated will not be reviewed on appeal. State v. Harris, 199 Mo. 723; State v. Young, 153 Mo. 449. (2) The court did not err in failing on its own motion to instruct the jury that the evidence of other crimes was admitted for the purpose of discrediting the testimony of defendant as a witness. State v. Kilirore, 70 Mo. 558; State v. Gatlin, 170 Mo. 354; State v. Ferguson, 162 Mo. 678. (a) This question is not before this court for the reason that the record fails to show that the defendant offered or requested such instruction and fails to show that the defendant excepted at the time to the failure of the trial court to so instruct. State v. Pfeifer, 267 Mo. 29; State v. Goldsby, 215 Mo. 57; State V. George, 214 Mo. 262; State v. Epenschied, 212 Mo. 222; State v. Barnett, 203 Mo. 658. (3) Mere clerical errors in indictment did not vitiate it. It has often been held that the mis-spelling of a word is not sufficient ground for quashing the indictment. State v. Vaughan, 141 Mo. 514; State v. Craighead, 32 Mo. 561. Spelling the name “Slokes” is a mere clerical error and did not in any way prejudice the defendant and is not reversible. State v. Griffin, 249 Mo. 624; State v. Morehead, 271 Mo. 84. If the defendant be indicted in the wrong name unless he declare his true name before pleading, he shall be proceeded ag’ainst by the name in the indictment. Sec. 3906, R. S. 1919; State v. Schricker, 29 Mo. 265. Purely technical objections in cases of this kind are cured by our statutes and variances in the name of the defendant shall not be deemed grounds for an acquittal unless the court before which the trial is had, shall find that such variance is material to the merits of the ease and prejudicial to the defense of the defendant. Sec. 3907, R. S. 191.9; State v. Johnson, 93 Mo. 77; State v. Foley, 247 Mo. 607; State v. Ballard, 104 Mo. 634; State v. Burk, 151 Mo. App. 198. (4) The evidence is sufficient to sustain the verdict. The reiterated rule is that there must be a total failure of the evidence or it must be so weak as to justify the conclusion that the verdict was the result of passion or prejudice. State v. Underwood, 263 Mo. 685; State -v. Concelia, 250 Mo. 424; State v. Rumfelt, 228 Mo. 443. (5) The court did not commit error in permitting the case to be reopened. The reopening of the case by the state for the introduction, of evidence was a matter within the discretion of the trial court. It is well settled law that such a course is not subject to criticism unless it be shown that injury to the defendant resulted therefrom. State v. Rose, 271 Mo. 26; State v. Long, 257 Mo. 211; State v. Currier, 225 Mo, 651; State v. Ray, 225 S. W. 973; State v. Dunn, 179 Mo. 118. (6) There was sufficient corroborative evidence. State v. Long, 257 Mo. 207; State v. Phillips, 185 Mo. 185; State v. Sublett, 191 Mo. 163. The instruction- given in corroboration was proper. State v. Wheeler, 108 Mo. 665; State v. Meals, 184 Mo. 244.
   RAILEY, C.

On November 19, 1919, the grand jury of Hickory County, Missouri, returned into the circuit court of said county an indictment, charging therein that Prank Stokes, on or about the 15th of November, 1918, under a promise of marriage, did feloniously seduce and debauch Chloe Durnell, an unmarried female of good repute, and under twenty-one years of age, against the peace and dignity of the State.

On April 20, 1920, defendant Stokes waived formal arraignment under the indictment, pleaded not guilty, and entered upon a trial of said cause before a jury.

The testimony of prosecutrix, Chloe Durnell, in substance, tends to show the following facts: That she was bom in Hickory County, Missouri, on August 9, 1899; that she had lived four miles north of Flemington in said county all her life; that she had known defendant, Prank Stokes, since she could first remember; that she commenced going with him in August, 1918; that defendant lived about two and one-half miles away, and came to see her about two or three times a week; that she went to parties and to church with him; that while at her sister’s in November, 1918, she and defendant were engaged to be married; that afterwards she and defendant continued to attend church and parties; that about one week after they became engaged, defendant had sexual intercourse with her, near the chapel in said county, after night; that defendant was the father of her child; that he had sexual intercourse with her a few times at other places; that he continued to visit her until February, 1919; that the wedding was first set for December 24,1918; that she was getting her quilts and things ready, making her clothes, etc.; that she got caught before the above date, and did not marry then; that by the 24th of December, 1918, she found out she was in a family way; that she did not marry in December because she could not get ready; that on July 11, 1919, defendant gave her $15 and sent her to Kansas City, to try and get rid of the baby; that she wrote defendant a letter upon her return from Kansas City, where she spent one night, and asked him to marry her, which he declined to do; that in the latter part of November, 1918, while close to the chapel, defendant wanted to have intercourse with her, said he would be her husband, and could not wait until they were married; that he had been hugging and kissing her before that time. Over the objection of defendant, she was permitted to testify that she would not have yielded to defendant’s entreaties and had intercourse with him had it not been for his promise to marry her.

On cross-examination, she. testified, in substance, that she had never gone with Prank Stokes before August, 1918; that she had been keeping’ company with other boys, but Fred Wise was the only one before she commenced going with defendant; that after August, 1918, Fred Wise was the only other boy she went with; that she went with Frank Stokes, the first of August and then with Fred Wise; that the wedding was first set for December, but they became engaged November 25,1918; that defendant first had sexual intercourse with her about one week after November 25, 1918, and after they were engaged; that defendant asked her to marry him; that defendant bought her a dress in December, 1918; that they did not marry then, because she could not get ready; that she first found out she was in a family way on January 20, 1919; that she told defendant about it; that the second date for their marriage was February 20, 1919; that defendant then quit her, about February 15,1919; that he never went with her any more until May, 1919; that she had a talk with defendant near Marcus Miller’s, after she returned from Kansas City in July, 1919; that her baby was born, October 25, 1919; that she had never had intercourse with any other boy.

Defendant’s exhibit 1, dated at Humansville, Missouri, August 8, 1917, addressed to Earl' Stokes, purporting to be signed “From C. E. to E. S.”, was presented to prosecutrix, and she was asked if she wrote the letter. She testified that she never wrote the letter, and it was not in her handwriting.

James Miller testified, in substance, that he was the brother-in-law of prosecutrix; that he knew defendant Stokes; that the latter came to see prosecutrix about once a week, and took her to church and parties; that he heard them talk about getting married and about what they would do after they were married; that defendant said they would live on the old place for a year and then they would move to his place; that he (witness) gave prosecutrix a hog, and told her she could let it run there until they married; that defendant was present and heard the talk about the hog; that she went to work getting her clothes together, quilting, etc.; that they first talked about getting married about Christmas, but she could hot get ready by that time, and they put it off until February; that witness and defendant are own cousins.

On cross-examination, the testimony of witness was practically the same as in chief. He denied making any arrangements with prosecutrix to remain at his home and not get married. Denied that he agreed to give her a mare and some other property if she would remain with witness and his wife.

On re-examination, witness testified that defendant told him he had given prosecutrix some money to go to Kansas City to see if she could get rid of the baby.

Mrs. Dona Miller testified to substantially the same facts as did her husband.

Fred Wise testified, in substance, that he had known prosecutrix about three years. He was asked if he was acquainted with the general reputation of prosecutrix in that community for virtue and chastity, as being a virtuous and moral woman. Defendant’s counsel objected to the question, on the ground that witness was only acquainted with a few people in the community and the objection was sustained.

Tim Stokes, a cousin of defendant, testified that he had known prosecutrix about all his life* (He was 21 years old); that they went to school together; that she and defendant went to gatherings together. He heard defendant say, he did not know whether the baby was his (defendant’s) or not. Witness testified that, so far as he knew, prosecutrix’s reputation for virtue and chastity in that community was good.

Tim Stokes was recalled for further cross-examination and denied that he told defendant in August, 1918, he had had sexual intercourse with prosecutrix.

Chloe- Burnell, prosecutrix, was recalled for further cross-examination, and denied that she told Oleeda Shockley, in the fall of 1918, if she ever got married she wouldn’t have any children, as she knew how to get rid of them.

The State introduced ten witnesses who testified as to the good reputation of prosecutrix for virtue, chastity, etc.

The foregoing covered substantially the State’s case in chief.

Fred McCracken testified that in the fall of 1918, he met Ray Bernard and prosecutrix in the road; that Bernard had his arm around her and was hugging her as they were walking down the road together. It was daylight at the time.

Henry McCracken testified, in substance, the same rs the preceding witness, except that he fixed the date when Ray Bernard and prosecutrix were walking together, as being in March, 1919.

Cuba Beem, fifteen years of age, testified that she was defendant’s niece; that she had known prosecutrix two or three years and had a conversation with her in the fall of 1918; that in this conversation prosecutrix told witness that Jim Miller had promised her, if she would never marry, stay there and work for himself and wife, that he would give her a team of colts and some other property; and that she had accepted his proposition; that this conversation occurred at Jim Miller’s, in the cow lot, on November 12, 1918.

Oleeda Shockley testified that she was nineteen years of age, had known prosecutrix all her life, and in the fall of 1918 heard her say, if she ever got married, she wouldn’t have any children; that she knew how to keep from having them, and had tried it.

Earl Stokes, a cousin of defendant, testified that lie went to school with prosecutrix and knew her handwriting ; that he received a letter from her, described as defendant’s exhibit 1; that he had quit school, and his sister Mamie gave it to him; that he talked with prosecutrix after receiving this letter, and she wanted to know why' he didn’t answer it or come to the chapel as she had told him. Witness further testified that prosecutrix, in August or September, 1918, told him she had had intercourse with Burr Ousley, Glenn Jones, Tim Stokes and Fred Wise; that this occurred on the road from Plemington while she was staying at Mr. Shreck’s.

Defendant’s exhibit 1 was read in evidence, as follows :

“Humansville, Mo., Aug. 8, 1917.

“To Earl Stokes:

“Hello Earl how are you. I am all O. K. I hope these few lines will find you the same. What have you been doing this week I have wash and iron and went over to Willie and stade all night and I come home and clean up the house and I had to help Cleae hall a lode of corn and I went to sleep a while and then I went hack to work again say kid you get Home all rite a Sunday evening. How you pass a Monday night did you see me say Earl I waunt you to make your mine up by next Wenday night if you will do what I want you to do say some one said if they was me and you they wood marry and I will if you will and they sad we cod sell out and go away from home that they wood her from us for a mont. I want do what I told you I wood I wood let you sleep with me. Ethel said that she wood help to put me in a bed by herself let me know next Wenday night if we dont do that I am go do sumten else come down and I will give you a big kiss and a hug. Well I will send this by Montie to school and Montie will give it to Mama. You ancer and send it by Mama.

“Prom C. E. to E. S.”

Prank Stokes, the defendant, testified in substance as follows: That he was twenty-six years old; that he never promised to marry Chloe Durnell; that he never had any conversation with her in the presence of either Jim Miller or his wife, in regard to marriage or about getting married; that he knew Ray Bernard; that Bernard and prosecutrix stayed at Mr. and Mrs. DurnelPs while the Durnells had gone to Sedalia; that he sáw Bernard and prosecutrix lying on the floor on a pallet when he drove up ;■ that when they saw defendant, they jumped up; that witness said, “'Who was that?” and Chloe said, “You ought not come so quick;” that was in August, 1918.

On cross-examination, defendant testified that he saw them lying on -the pallet about three o ’clock in the afternoon; that they had two pillows and a quilt down there; that he did not know what they were doing. Over the objection of defendant’s counsel, he was required to testify that he had gone with the prosecutrix before and after this occurrence; that he would go to see her on Sundays and sometimes go once a week; that sometimes he would stay until three o’clock while they were by themselves; that he went to see Chloe the next Sunday after he saw her with Bernard lying on the pallet; that he went back again to see her in about two or three weeks; that he would go once a-week and sometimes once through the middle of the week; that she locked the door and he would have to stay until she let him out; that she would keep him in there; that he never talked at Miller’s about marrying this girl; that he never talked to her about marrying her, but she talked to him; that he told her he didn’t want to get married; that the last time she asked him to marry her was in August, 1919. Over his objection, defendant was compelled to testify that he had been convicted once or twice for violating the laws of the State; that he was convicted when about fourteen years old for stealing watermelons; that he was convicted for carrying a pistol, and that he was convicted for fighting.

.Defendant here rested in chief.

In rebnt.tal, the State called ’William Durnell, who gave evidence tending* to show that Ray Bernard was in the army at the time defendant claims to have seen him on the pallet with Chloe.

Louisa Durnell, the mother of prosecutrix, was shown defendant’s exhibit 1, and stated that it was positively not in her daughter’s handwriting.

Wm. Durnell, the brother of prosecutrix, testified that he went to school with her and observed her handwriting. He was shown said exhibit 1, and testified that it was not in the handwriting of prosecutrix.

After the case was closed and counsel for the plaintiff had commenced the argument, the State was permitted, over the objection of defendant, to prove by the prosecutrix that she was single during* the years 1918 and 1919; and that she had never been married.

The foregoing substantially covers all the testimony in the case.

After the reading of the instructions and the arguments in the case, the jury returned into court the following verdict:

“We, the jury, find the defendant, Frank Stokes, guilty as charged in the indictment, and assess his punishment at 3 years in state penitentiary.

“A. A. Paxton, Foreman.”

Defendant, in,due time, filed motions for a new trial and in arrest of judgment. Both motions were overruled, defendant duly sentenced, and an appeal was granted him to this court.

I. Appellant assigns as error the ruling of the court in permitting the State, over his objection, to cross-examine him in respect to matters not brought out or referred to by him, in his direct examination.

The language of Section 4036, Revised Statutes 1919, which it is alleged was violated, is, that a defendant, “shall be liable to cross-examination, as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness in the case.” We are thoroughly familiar with the above section of our statute, as well as the authorities cited by counsel in their respective briefs. It is difficult to lay down anjr positive rule which should apply in the interpretation of the above section, as each case must largely be determined with reference to the facts stated therein. We have set out all the evidence in the case very fully, and shall only refer to the facts again as far as necessary.

It is conceded by appellant that he testified, in chief, that he never promised to marry Ohloe Dumell; that he never had any conversation with her, in the presence of either Jim Miller or Mrs. Jim Miller, in which he talked about when he would get married and about getting married; that he saw Ohloe Burnell and Bay Bernard lying on a pallet with two pillows and a quilt, at the homo of Will Burnell, in August, 1918, while Will Burnell and his wife were at the Sed alia fair. Over the objection of defendant’s counsel, he was required to testify that he went with prosecutrix both before and after the time he saw her on the pallet with Bernard. Over defendant’s objection, he testified that he visited prosecutrix frequently after the above occurrence; would g'o on Sundays, and sometimes once in the middle of the week; that he would stay with her sometimes until two or three o’clock in the morning; that she would lock the door and keep him there; that he never proposed marriage to her, but she asked him to marry her and he told her he did not want to marry, etc. For the purposes of the case, even if it be conceded that the above and other similar testimony was not proper cross-examination, yet, we are at a loss to understand how defendant was injured thereby. The evidence is undisputed that he went with prosecutrix to church, parties, etc. The cross-examination threw no light on the question as to whether defendant promised prosecutrix he would marry her. It did not tend to show that Chloe Durnell was of previous good character. In view of the testimony of the prosecutrix as to what occurred between herself and defendant, the cross-examination complained of was not material to any issue in the case, and affords no valid grounds for reversing and remanding the cause. [State v. Avery, 113 Mo. l. c. 499; State v. Lewis, 118 Mo. l. c. 86; State v. Feeley, 194 Mo. l. c. 315-6; State v. Barrington, 198 Mo. l. c. 81.]

II. Aside from what is said in the preceding proposition, we are of the opinion that the trial court committed no error in the admission of said cross-examination, in view of defendant’s testimony in chief. [State v. Drew, 213 S. W. l. c. 107; State v. Sherman, 264 Mo. l. c. 381; State v. Mitchell, 229 Mo. l. c. 693; State v. Miller, 190 Mo. l. c. 463-4; State v. Avery, 113 Mo. l. c. 498-9.] The rule of law, in respect to foregoing subject, is very forcefully and clearly stated by White, C., in the recent case of State v. Drew, 213 S. W. l. c. 107, as follows :

“ Complaint is made of the action of the court in permitting the defendant to be cross-examined by the prosecutor, who asked him whether he was at the home of the prosecuting witness at axiy time in October. The defendant in his' direct examination was asked whether he had ever had any improper relations with the prosecuting witness at any time, and it was entirely proper to cross-examine him as to his whereabouts and his movements about the time at which he was said to have committed the offense. [State v. Pfeifer, 267 Mo. 23, loc. cit. 30-32, 183 S. W. 337; State v. Ivy, 192 S. W. 733, loc. cit. 736.] ”

Leaving out of consideration the question as to the alleged promise of marriage, and as to what is alleged to have taken place when defendant first had sexual intercourse with prosecutrix, there is hut little conflict, if any, in their testimony. As defendant testified in chief, in relation to the promise of marriage, and was not asked on cross-examination as to whether he had sexual intercourse with Chloe Durnell, he has no just ground of complaint on account of the evidence which he did give on cross-examination. Considered from any viewpoint, we are of the opinion that the trial court committed no error in respect to the cross-examination of defendant.

III. Appellant contends that the trial court erred in compelling him to testify as to his former convictions for stealing watermelons when a hoy, for carrying a pistol, and for fighting, when he had not °Pened UP any SUcl1 ÍSSae by offer of proof as to his good reputation on the traits of character involved in said cross-examination. Appellant, in support of his contention, relies upon Judge Gantt’s opinion in State v. Beckner, 194 Mo. 281 and following.

We have no criticism to make of Judge Gantt’s opinion, based upon common-law principles, but it is evident from the briefs of counsel in said cause, as well as from the opinion therein, that the attention of the court was not called to the Act of 1895 (Laws 1895, p. 284), now known as Section 5439, Revised Statutes 1919, nor was the latter considered by the court in passing on the case. The above section reads as follows:

“Any person who has been convicted of a criminal offense is, notwithstanding, a competent witness; but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, upon which he must answer any question relevant to that .inquiry and the party crqss-examining shall not be concluded by his answer.”

We are of the opinion that the cross-examination complained of was authorized by the provisions of above section. [State v. Howe, 228 S. W. l. c. 479, and cases cited; State v. Mills, 272 Mo. l. c. 536; State v. Banks, 258 Mo. l. c. 493; State v. Hubbard, 223 Mo. 80; State v. Woodward, 191 Mo. l. c. 633; State v. Spivey, 191 Mo. l. c. 110-1; State v. Blitz, 171 Mo. l. c. 540-1-2.]

IV. Appellant, under Ms assignments of error numbered 3, insists that, even if the testimony, in regard to the former misdemeanors, was properly shown, “then ^ ^ecame an(^ was ^ie duty of the court under the law and under the request of defendant’s counsel to instruct the jury to the effect that the jury could only consider his conviction on those other offenses as tending to discredit his testimony as a witness, and not as tending to prove him guilty of the crime for which he was then oh trial.”

The record indicates that defendant was represented by able and careful attorneys, who tried the case well in his behalf. The court gave very full and carefully prepared instructions covering all • the real issues in the case. The defendant offered no instruction in respect to foregoing matter, nor does the record show that the court was requested to instruct the jury on the above subject. The misdemeanors referred to were only admitted as evidence tending to affect the credibility of defendant as a witness in the case. They did not relate to the merits of the controversy except as above indicated. If counsel for appellailt had offered an instruction in relation to the above matter and it had been refused, or if they had requested the court to give a proper instruction on that subject and their request had been refused, there might be some merit to their present contention, but on the record before us, the trial court, in respect to the above matter, committed no error of which appellant can legally complain.

V. The sufficiency of the indictment is, challenged, on the ground that it charges one Frank “ gi0^es>> seducing^ and debauching Chloe Durnell, upon a promise of marriage made to her by Frank Stokes.

Sections 3906-7, Eevised Statutes 1919, which were in existence during the year 1918, read as follows:

“Sec. 3906. Indictment by wrong name. — If a defendant he indicted hy the wrong name, unless he declare his true name before pleading, he shall be proceeded against by the name in the indictment. If he allege that another name is his true name, it must be entered in the minutes of the court; and after such entry, the trial and all other proceedings on the indictment shall be had against him by that name, referring also to the name by which he is indicted, in the same manner, in all respects, and with the same consequences as if he had been indicted by his true name.

“Sec. 3907. Variance between charge and proof.— Whenever on the trial of any felony or misdemeanor, there shall appear to be any variance between the statement in the indictment or information and the evidence offered in proof thereof, in the Christian name or surname, or both Christian name and surname, or other description whatsoever, or any person whomsoever therein named or described, or in the name or description of any matter or thing whatsoever therein named or described, or in the ownership of any property named or described therein, such variance shall not be deemed grounds for an acquittal of the defendant, unless the court before which the trial shall be had shall find that such variance is material to the merits of the case and prejudicial to the defense of the defendant.”

The indictment aforesaid, including caption and signature, reads as follows:

“STATE OF MISSOUEI, COUNTY OF HICKOEY,

IN THE CIECUIT COUET OF HICKOEY 'COUNTY, ss MISSOUEI, To November Term, 1919

STATE OF MISSOURI v. FRANK STOKES

“The Grand Jurors for the State of Missouri, duly summoned, empaneled, charged and sworn to inquire ■within and for the body of Hickory County, Missouri, upon their oaths present and charge that Prank Slokes on or about the 15th day of November, 1918, at the said County of Hickory, and State aforesaid, did then and there under and by promise of marriage made to one Chioe Durnell by him, the said Prank Stokes, unlawfully and feloniously, seduce and debauch her, the said Chioe Durnell, she, the said Chioe Durnell being then and there an unmarried female of good repute, and under twenty-one years of age against the peace and dignity of the State.

“C. N. Simmons,

‘ ‘ Prosecuting Attorney. ’ ’

Taking the indictment as a whole, it is perfectly manifest upon the face of same, that the word ‘ ‘ Slokes ’ ’ in the body'thereof was intended for Stokes. The latter was arraigned and entered a plea of not guilty, as the real defendant in the case. He made no attack upon the indictment before or during the trial, and made no objection during the progress of the trial to the introduction of evidence under the indictment on the ground that there was a variance between his name and that of “Slokes” mentioned in the body of the indictment. It is not claimed that the trial court found the alleged variance was material to the merits of the case or prejudicial to the defense of defendant. The indictment, on its face, construed as any other written instrument, clearly indicates that Prank Stokes was -the real defendant being charged with seducing Chioe Durnell and that the word “Slokes” was intended for Stokes. The clerical error of the above character, according to our conception of the law and legal procedure thereunder, is not sufficient to invalidate the indictment. [Section 3908, R. S. 1919; Section 5115, R. S. 1909; State v. Adkins, 225 S. W. 981; State v. Foster, 220 S. W. 958-9; State v. Hawkins, 210 S. W. l. c. 6; State v. Byrd, 278 Mo. l. c. 432-3, 213 S. W. l. c. 36; State v. Pfeiffer, 277 Mo. l. c. 206, 209 S. W. 925; State v. Massey, 274 Mo. l. c. 585, 204 S. W. 541; State v. Morehead, 271 Mo. l. c. 87, 195 S. W. 1043; State v. Perrigin, 258 Mo. l. c. 236; State v. Griffin, 249 Mo. 624; State v. Duvenick, 237 Mo. l. c. 194; State v. Keener, 225 Mo. l. c. 494; State v. Miller, 156 Mo. l. c. 84; State v. Meyers, 99 Mo. 107; State v. Estis, 70 Mo. 437.]

In tlie light of foregoing precedents and statutes, we are of the opinion that the indictment charges Prank Stokes, with having seduced Chloe Durnell under a promise of marriage, etc.

YI. Appellant insists that the evidence was insufficient to make out a case of seduction.

The facts are extensively stated heretofore, and need not be repeated. While there are some inconsistencies and contradictions in the testimony of the State, and while some damaging facts were not in terms denied by prosecutrix, yet she did testify on cross-examination that no other boy had ever had intercourse with her. It is not the province of this court to pass upon the weight of the evidence, and we have not attempted to do so. We are of the opinion that the verdict is sustained by substantial evidence as to all the facts necessary to establish the guilt of defendant. [State v. Underwood, 263 Mo. l. c. 685; State v. Concelia, 250 Mo. l. c. 424; State v. Rumfelt, 228 Mo. 443; State v. Barrington, 198 Mo. 23.]

VII. The trial court is charged with error in permitting the State, after the testimony was closed and the argument commenced, to re-open the case by PermiYing the prosecutrix to testify that she had never been married.

There was nothing in the testimony to indicate that prosecutrix had ever been married. On the contrary, the testimony of all the witnesses, including defendant, left the impression that she was unmarried. It is manifest that no harm was done the defendant in re-opening the case for the above purpose. [State v. Ray, 225 S. W. l. c. 973; State v. Rose, 271 Mo. l. c. 26; State v. Dunn, Mo. l. c. 118; State v. Worton, 139 Mo. l. c. 533.]

VIII. We are of the opinion that instruction three, given by the court, is not obnoxious to the criticism leveled against it by appellant, and that it properly declared the law of the case.

IX. The trial court is charged with error in sustaining an objection of the state to a question propounded by defendant to T. T. Quillen. This witness testified at the instance of the State that, as far as he knew, the reputation of prosecutrix in that community for chastity and virtue was good. On cross-examination the following occurred:

“Q. Now, Mr. Quillen, did you hear of her keeping company with other boys?”

The court sustained an objection to this question, and that is assigned as error.

The testimony of this witness was simply cumulative; There were nine or ten other character witnesses who testified in substance the same as Quillen. There was no counter-evidence of this character offered by defendant. The question, does not mention any date, and the evidence is undisputed that prosecutrix went with other boys before her alleged engagement.. It could not be considered as an attack upon her chastity or virtue, even if she had kept company with other boys. This witness testified on cross-examination that he did not know a thing about prosecutrix keeping company with other boys. He was not even asked if it was neighborhood rumor. Even if some individual had told witness the prosecutrix had been keeping company with other boys, it would have been hearsay testimony and clearly incompetent. If the purpose of the question was to show that prosecutrix kept company with other boys ■after November, 1918, when she claims to have become engaged to defendant, as a circumstance tending to show she did not consider herself engaged to defendant, the-question should have been framed accordingly. There was no necessity for resorting to such hearsay testimony, when the evidence was undisputed, that in August, 1918, prosecutrix was keeping company with other boys. "We are of the opinion that the court committed no error in sustaining the objection to the question as ashed, and that defendant was not injured thereby.

X. Appellant contends that error was committed by the trial court in permitting Mr. O. O. Brown, special counsel for the State, to make improper remarks in the argument of the case, without being rebuked.

It is not claimed in defendant’s brief that the alleged remarks were objected to, or that the court was requested to rebuke counsel. If any such thing occurred, it was not made.a matter of record, is not contained in the transcript, and cannot be considered here. . [Hunicke v. Meramec Quarry Co., 212 S. W. 345; Forsee v. City of St. Joseph, 175 S. W. 577; Torreyson v. United Railways, 246 Mo. 696; Harding v. Railroad, 232 Mo. l. c. 446; State v. Harvey, 214 Mo. 403; State v. Baker, 209 Mo. l. c. 451; State v. Murphy, 201 Mo. 696.]

XI. It is claimed by defendant that the judgment c011^^011 cannot stand, because the indictment was endorsed by R. L. Moore, as foreman, and no such person appears on the panel of grand jurors.

The panel of grand jurors, as shown by the record before us, contains the name of Rufus Moore, and no other person by the name of Moore appears on the panel. No motion to quash the indictment was filed, nor was any objection to the sufficiency of same made during the progress of the trial.

Section 3885, Revised Statutes 1919 (Sec. 5093, R. S. 1909), reads as follows:

“Every indictment must be signed by the prosecuting attorney, and when the grand jury return any indictment into court the judge must examine it, and if the foreman has neglected to indorse it ‘a true bill,’ with his name signed thereto, or if the prosecuting attorney has not signed it, the court must cause the foreman to indorse or the prosecuting attorney to sign it, as the case may require, in the presence of the jury.”

In the. absence of any evidence to the contrary, we will conclusively presume that the trial court did its duty, and necessarily found that Rufus Moore and R. L. Moore were one and the same person.

XII. It is contended by appellant that the verdict defective, because'it was signed by A. A. Paxton, as foreman, when there was no perSOn on the panel.

The list of jurors who tried the case, as shown by the record, contains the name of Arthur Paxton, and there is no other person by the name of Paxton on the list. No evidence appearing to the contrary, it will be presumed that Arthur Paxton and A. A. Paxton were one and the same person.

XIII. We have given careful consideration to all the questions properly raised for review in this case, and find no error therein which would warrant us in reversing and remanding the ease. The judgment below is accordingly affirmed. White and Mozley, CC., concur.

PER CURIAM:

The foregoing opinion of Railey, G., is hereby adopted as the opinion of the court.

All of the judges concur.