text:
    THE STATE v. KID HOLDEN, Appellant.
    Division Two,
    May 14, 1907.
    1. APPEALS: Motion for New Trial: Indefinite Assignment. An assignment in the motion for new tr.ial that the court erred in admitting illegal and irrelevant testimony, is not sufficiently definite; and the appellate court will not go through the record to discover such testimony.
    2. INSTRUCTION: Limiting Time: Harmless Error. An instruction which limits the time of the commission of the offense to the year 1906, instead of three years prior to the time of the filing of the information, is an error in defendant’s favor, of which he can not complain.
    .3. GAMBLING: Crap Table: Sufficiency of Evidence. Evidence held sufficient to support the verdict finding defendant guilty of setting up and operating a crap table for the purpose of playing games of chance for money and property.
    Appeal from Jasper Circuit Court. — How. Howard Gray, Judge.
    AirraMBD.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The evidence, and all the evidence, showed that the crime charged was committed during the month of February, 1906, and prior to the filing of the information, which was February 26, 1906. So the jury could not possibly have been misled; neither was it possible for defendant to have been convicted of any crime committed prior to the time limited by the statute in such cases. (2) The simple statement of the facts is sufficient to convince any one of the guilt of defendant; for, had defendant not been guilty, he never would have been in the position in which he was found on that Saturday night, surrounded by the persons, tables and devices described by the witnesses. State v. Miller, 190 Mo. 449; State v. Cronin, 189 Mo. 663; State v. Locket, 188 Mo. 415.
   BURGESS, J.

On February 26, 1906, the prosecuting attorney of Jasper county filed an information, and on March 6,1906, he filed an amended information, duly verified, by which he charged that the defendant, on the--day of February, 1906, feloniously did set up, keep and operate a certain table and gambling device, commonly called a “crap table,” which table was adapted, devised and designed for the purpose of playing games of chance for money and property. Defendant was tried on March 13, 1906, and convicted, and his punishment assessed at twelve months in the_ county jail. After filing formal motions for new trial and in arrest of judgment, which were overruled, defendant appealed.

The State’s evidence tended to prove that-Sheriff Marrs, Deputy Sheriff Marquiss and Deputy Sheriff Kiér raided a certain room in the second story over the Woodbine saloon in the city of Joplin on one Saturday night in the month of February, 1906. Prior to forcing their way into said room, these officers went up an alley, climbed over a fence and got up on a flat roof of a one-story building and looked into the windows to see what was going on in said room. They saw a number of people up there, including the defendant, who were engaged in gambling. The defendant was standing behind a crap table dealing craps, and several others were around the table on the outside, rolling two dice across the table. The defendant was paying the bets and cashing in the checks. The others were standing on the outside of the table and were placing their cheeks down on the table and rolling the dice. The table was identified by the officers as what is commonly termed a crap table, and was about four feet high with a railing around it about four or five inches high, and was eight feet long by three feet wide and covered with a green cloth. On one side of the table, about the center thereof, there was a little space cut out, and in this space the defendant was standing while the game was in progress. On this table were numbers corresponding with numbers that can be made on a pair of dice, and on this particular table were 4, 5, 6, 8, ft, and 10. The word “come” was also printed on the table, and this word is one that is used by gamblers in playing said game of chance. Dice were also found in the drawer of the table, and the defendant was seen watching the dice as others would throw them, and throwing them back to the player. The defendant was also seen dealing certain colored checks, round flat checks, which he gave in exchange for money. The officers further testified that the table which the defendant had charge of was the character of table devised, designed and made for playing the game of craps, and was commonly termed a “crap table.”

The defendant introduced Burt Mann and A. M. Davis, who testified that they resided in Joplin, and were in this room the night that the officers raided the game. They also testified to their acquaintance with the game called “craps,” and also to their acquaintance with the game called “klondike;” that the table identified and offered in evidence was the kind of table upon which the latter game was played, and that the defendant had no connection that night with the crap table, but was standing behind the “klondike” table. They further testified that the crap game was played with two dice, and that the dice offered in evidence were regulation dice. Mann, however, admitted that he was not at this crap table when the sheriff and his deputies came in, and hadn’t been that evening, although he was “supposed to know” what was going on in that room that night; and Davis said, in explaining the use of the table, ‘ ‘We never used it as a crap table. ’ ’ When asked whom he meant by “we,” he replied that he meant the defendant in this case. For some reason, presumably a good one, the defendant did not testify in this case.

In rebuttal, the State produced the record of the circuit court of Jasper county, showing that defendant’s witnesses, Burt Mann and A. M. Davis, were under arrest charged with being the keepers of and with running a gambling table in the same house on the night of the arrest of defendant, Kid Holden.

The defendant is not represented in this court. The amended information is properly verified, and complies with the statute and approved forms. [Sec. 2194, R. S. 1899; State v. Locket, 188 Mo. 415; State v. Rosenblatt, 185 Mo. 114.] There was, therefore, no error in overruling the motion to quash.

One of the errors assigned in the motion for new trial is the action of the court in admitting illegal and irrelevant testimony, but what particular testimony the motion has reference to we are not advised, nor do we know. The motion is entirely too indefinite, and we are not disposed to go through the record and take upon ourselves the burden of discovering, if perchance we ■could, the said illegal or incompetent testimony. It would have been easy to indicate in the motion or by brief the particular testimony complained of, which was not done.

It is also asserted in the motion that the court erred in its instructions for the State, but after carefully reading them, we are unable to discover anything objectionable in any of the instructions excepting possibly in the second. It is as follows:

“ The court instructs the jury that if they find and believe from the evidence in this case that the defendant, at the county of Jasper and State of Missouri, in the year 1906, or at any time therein prior to the 26th day of'February, did wilfully, unlawfully and feloniously keep a certain gambling device and table, commonly called a crap table, and that the same was then and there a gambling device, adapted, devised and designed for the purpose of playing games of chance for money and property, and that the defendant did then and there unlawfully, wilfully and feloniously entice, induce and permit certain persons to bet and play at and upon a game played at and by means of such gambling device, and for which the same was adapted, devised or designed, on the side and against the keeper thereof, then you will find the defendant guilty and assess his punishment at imprisonment in the penitentiary for a term not less than two nor moré than five years, or by imprisonment in the county jail for a term not less than six nor more than twelve months.”

"While this instruction is subject to verbal criticism, we do not think it misleading, confusing or erroneous. It limits the jury not to the three years next preceding the date of the filing of the information, but to the year 1906, while the information was filed in March, 1906; so that if there was any error in the instruction, it was in favor of the defendant, of which he has no right to complain.

The evidence showed very conclusively that defendant was guilty as charged. The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: FOX, P. J.,

license: Public Domain

text:
    THE STATE v. JOHN GRANGER, Appellant.
    Division Two,
    May 14, 1907.
    1. BILL OF EXCEPTIONS: Expiration of Time: Extension There- . after. When the time granted for filing the bill of exceptions has expired, neither the judge in vacation nor the court at a subsequent term has power to extend the time. And a bill of exceptions filed in pursuance of such void order will not be considered on appeal.
    2. INFORMATION: One Count. An information which first charges that defendant actually did the shooting, and then charges another party as accessory before the fact, and concludes, “against the peace and dignity of the State,” contains but one count.
    3. -: Abbreviation. An information is not defective merely because it employs the abbreviation “Jno.” for the name John.
    Appeal from Stoddard Circuit Court.— Hon. Jas. L. Fort, Judge.
    Arpíeme».

      Ed. Edmonds, Joe Farris and T. H. Mauldin for appellant.
    (1) The information contains two counts and neither concludes as required by law; and, as has been recently said in State v. Coleman, 186 Mo. 151, whatever certainty is' requisite in an indictment, is necessary also in an information; and, consequently, as all the material parts of the crime must be precisely found in the one, so must they be precisely alleged in the other, and not by way of argument or recital. (2) The information is utterly defective, in this: the first count does not charge John Granger with having committed an offense, but charges “Jno. Granger;” this of itself is a fatal error. In addition thereto, it does not conclude against the peace and dignity of the State as our courts have held it must do. 22 Mo. App>. 655.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The information, which was accompanied by the affidavit of the prosecuting attorney of Stoddard county, is sufficient in form and substance. State v. Bradford, 156 Mo. 95; State v. Stacy, 103 Mo. 11; Kelley’s Crim. Law, sec. 474. (2) There is nothing before this court except the record, and no error appears in that. On October 2,1905, defendant was granted an appeal, and leave was given him to prepare and file his bill of exceptions in ninety days thereafter. On January 2, 1906, defendant filed an order, signed by the trial judge, extending the time for filing said bill; but the time had then already expired. The bill of exceptions, therefore, cannot be considered as a part of the record in this cause. State v. Eaton, 191 Mo; 151; State v. Thompson, 149 Mo. 439; State v. Britt, 117 Mo. 584; State v. Wilson, 68 S. W. 68. Even though the parties believed that the bill of exceptions was filed in time, if the time had in fact expired, the bill will not be considered ; and, when a certain number of days are given in which to file the bill, the time is counted by the days, not by the month. Linahan v. Barley, 124 Mo. 560; Fulkerson v. Murdock, 123 Mo. 292; State v. Chain, 128 Mo. 361; McHoney v. Ins. Co., 44 Mo. App. 426.
   FOX, P. J.,

This cause is brought to this court by appeal on the part of the defendant from a judgment of the circuit court of Stoddard county, convicting him of murder of the second degree. The record discloses that on October 2, 1905, the defendant was granted an appeal and leave was given him to prepare and file his bill of exceptions in ninety days thereafter. It is further disclosed by the record that on January 2, 1906; defendant filed an order signed by the trial judge, extending the time for filing said bill of exceptions. It is therefore apparent that the ninety days which the appellant had in which to file bill of exceptions had expired before the filing of the order of the judge in vacation extending the time for the filing of such bill; therefore, following the uniform rulings of this court that after the expiration of the time given by the court in which to file a bill of exceptions, neither the judge in vacation nor the court at a subsequent term of court has the power to extend the time for the filing of such bill of exceptions, it must be held that there is nothing before this court for review in the case at bar except the record proper. In State v. Gartrell, 171 Mo. l. c. 505, it was said that, “ again and again it has been decided by this court that when the period (beyond the trial term) granted by the court in which to file a bill of exceptions has expired, neither the court nor the judge in vacation can extend it, and what purports to be a bill of exceptions filed in pursuance of such a void order will not be considered by this court.” [State v. Apperson, 115 Mo. 470; State v. Mosley, 116 Mo. 545; Danforth v. Railroad, 123 Mo. 196; State v. Chain, 128 Mo. 361; Powell v. Sherwood, 162 Mo. 605.]

Directing our attention to the only question before us for review, that is, the record proper, it is sufficient to say that we have carefully examined the information upon which the judgment in this cause rests, and find that it properly charges the offense of murder of the first degree. However, counsel for appellant, in their brief, challenge the sufficiency of the information and suggest that there are two counts in the information and that the first count does not conclude “against the peace and dignity of the State.” Learned counsel for appellant doubtless are laboring under a misapprehension of the true and correct interpretation of the information, for it is apparent there is but one count in which John Granger and James D. Granger are charged with the killing of one Mart Hopkins. The first part of the information charges that John Granger actually did the shooting, and then follows in the other portion of the information the appropriate and essential allegations charging James D. Granger as accessory before the fact, and then the information concludes “and the prosecuting attorney of the county and State aforesaid, upon his oath aforesaid, does say that Jno. Granger and Jas. D. Granger, him, the said Mart Hopkins, at the time and place aforesaid, in the manner and by the means aforesaid, feloniously, on purpose, wilfully, deliberately, premeditatedly, and of their malice aforethought, did kill and murder, against the peace and dignity of the State.”

It is further suggested that the information is defective on account of the abbreviation of the name of John by use of the letters “Jno.” There is no merit in the contention of appellant’s counsel as to the. sufficiency of the information charging the offense. The crime is charged in proper form and the information is duly verified in conformity to the statute. Formal arraignment of the defendant was waived and the trial proceeded, which seems to have been in every particular regular. The verdict of the jury finding the defendant guilty of murder of the second degree and assessing his punishment at ten years imprisonment in the penitentiary is in due form, as well as the sentence and judgment in accordance with such verdict.

Finding no reversible error in the record proper, which is the only matter before us for review, the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


author: GANTT, J.

text:
    THE STATE v. MICHAEL McGINNIS, Appellant.
    Division Two,
    May 14, 1907.
    NO BILL OF EXCEPTIONS. Where no hill of exceptions is filed,' and the record proper is free from error, the judgment will he affirmed.
    Appeal from Jackson Criminal Court. — How. Jno. W. Wofford, Judge.
    Affirmed.

      Michael McGinnis pro se.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    Where there is no hill of exceptions, and no error appearing in the record proper, the judgment will be affirmed. State v. Nicholas, 193 Mo. 214; State v.Sparks, 191 Mo. 162.
   GANTT, J.

On the 24th of February, 1905, the prosecuting attorney of Jackson county, Missouri, filed an information containing two counts, the first of which charged the defendant and others with forging a certain deed purporting to convey real- estate in said county, and the second count of which charged the defendant and others with causing to be forged a certain deed purporting to convey real estate in said county.

At the April term, 1906, the defendant, who had been granted a severance, was tried and convicted and his punishment assessed at ten years in the penitentiary. Within due time, the defendant filed a motion for new trial, which was overruled on the 25th of June, 1906, and he was sentenced to the penitentiary in accordance with the verdict of the jury. On the same day he was granted an appeal to the Supreme Court and given ninety days in which to file a bill of exceptions. No bill of exceptions was filed in the criminal court within the time allowed, nor, for that matter, at any time. ■ The only matter before us on this appeal is the record proper.

The defendant was convicted under the second count in the information, that is to say, of feloniously causing a certain deed to be forged. The prosecution was based upon section 1094, Revised Statutes 1899, and the information is sufficient. It is in the form often approved by this court. [State v. Fisher, 65 Mo. 437; State v. Tobie, 141 Mo. l. c. 554, 555.] The arraignment, trial and conviction all appear in regular form and the judgment must be and is affirmed.

Fox, P. J., and Burgess, J., concur.


author: BURGESS, J.

text:
    THE STATE v. WALTER WILLIAMSON, Appellant.
    Division Two,
    May 14, 1907.
    ASSAULT WITH INTENT TO KILL: Shooting At One, Hitting Another. The gravamen of the offense of assault with intent to kill, is the intent with which the shot was fired. And where defendant is charged with felonious assault upon D., and the evidence shows that he shot at W. and the shot took effect upon D., he can not he convicted of assault with intent to kill D.
    Appeal from St. Louis City Circuit Court. — How. Matt. G. Reynolds, Judge.
    Reversed.

      Thomas B. Harvey for appellant.
    The court should have sustained defendant’s motion for a new trial, one ground of which was that the verdict was against the evidence. Exception was preserved to the action of the court in overruling said motion. Shooting with intent to kill Woehrle will not sustain a charge of shooting with intent to kill Dorn, simply because the shot took effect upon Dorn. State v. Mulhall, 199 Mo. 202.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    It is earnestly insisted by counsel for apellant that this case should be reversed and remanded on the authority of the case of State v. Mulhall, 199 Mo. 202. But in that case, the judgment was reversed because of the giving of an erroneous instruction — an instruction which submitted the case to the jury on the theory that the intent followed the bullet, in a case of assault with intent to kill. In the ease at bar, the record is in the same shape as if it contained no instructions; no objections or exceptions to the instructions having been saved. This court will, therefore, presume that the instructions properly declared the law to the jury; the law applicable to the charge contained in the information. There was sufficient evidence in this’ case to justify the jury in finding that the defendant shot with intent to kill Dorn; the pointing of a loaded pistol at him, the firing of the pistol and the striking and wounding of Dorn certainly made out a prima-facie case. The fact that one or two witnesses gave it as their opinion that the defendant was shooting at another person did not establish that fact conclusively; neither did it take from the jury the right to convict the defendant, if the jury believed from the rest of the evidence that the defendant shot with intent to kill Dorn. The higher court will presume that the trial court properly instructed the jury, and will also presume that the jury properly convicted the defendant, in the absence of showing to the contrary. In other words, he who asserts error, must prove error. State v. Hunter, 170 Mo. MO.
   BURGESS, J.

Upon an information filed by the assistant circuit attorney of the city of St. Louis, in the circuit court of said city, charging the defendant with an assault with intent to kill one Elmer Dorn, the defendant was convicted and his punishment assessed by the jury at imprisonment in the penitentiary for five years. The defendant in due time filed motions for new trial and in arrest of judgment, which were overruled. ' His sentence was afterwards commuted to three' years imprisonment in the penitentiary, and judgment passed accordingly. Defendant appealed.

The information, omitting the formal parts, is as follows:

“Richard M. Johnson, assistant circuit attorney, in and for the city of St. Louis, aforesaid, within and for the body of the city of St. Louis, on behalf of the State of Missouri, upon his official oath, information makes as follows: That Walter Williamson on the twenty-second day of April, in the year of our Lord, one thousand nine hundred and five at the city of St. Louis aforesaid, with force and arms, in and upon one Elmer Dorn feloniously, wilfully, on purpose and of his malice aforethought, did make an assault; and the said Walter Williamson with a certain weapon, to-wit, a pistol loaded with gunpowder and leaden balls," then and there feloniously, wilfully, on purpose and of his malice aforethought did shoot off, at, against and upon the said Elmer Dorn then and there giving to the said Elmer Dorn in and upon the head and body of hirri the said Elmer Dorn with the pistol aforesaid, one wound, with the intent then and there him the said Elmer Dorn feloniously, wilfully, on purpose and of his malice aforethought to kill; contrary to the form of the statute in such case made and provided and against the peace and dignity of the State.”

The evidence on the part of the State tended to prove that the prosecuting witness, Elmer Dorn, was a newsboy, ten years old, and that on the 22nd day of April, 1905, he was near the corner of Twenty-first street and Franklin avenue, St. Louis, selling newspapers, when the defendant, who was disputing with another man at the corner of said streets, drew a pistol and fired twice, one of the bullets striking Elmer Dorn in the knee. Thomas M. Sayman, a witness for the State, testified that he was driving along the street in a buggy, and, upon hearing the report of a pistol, looked up and saw the defendant fire two or three shots at another man, whose name was Ed. Woehrle. Witness did not notice the boy, Elmer Dorn, at all, and only learned some two hours afterwards that the boy had been struck by one of the bullets. After the shooting, which occurred between six and seven o’clock in the evening, the defendant ran north on Twenty-first street dodged into an alley and disappeared. The evidence showed that, the wounded boy was confined in a hospital for about four weeks, and remained in bed some two weeks longer after he had been taken home.

Only the defendant explained the cause of the difficulty. He testified that he was at Hannibal, Missouri, engaged at his occupation as foreman of a shoe factory, and received a letter from a friend giving him some information about his wife, living in St. Louis. Thereupon he returned to St. Louis, where he resided, and found a number of letters in a wardrobe, which caused him to look for the said Woehrle. He also discovered that a little iron bank or box, containing over thirty dollars in money, was missing, and that it was in the possession of Woehrle. Defendant met Woehrle on the street and told him to return the bank. Woehrle at first denied having it, but afterwards told the defendant that he would go to his house for the bank, and asked defendant to meet him at the corner of Twenty-first and Franklin avenue, where he would deliver the bank to him. That a short while thereafter he met Woehrle at the appointed place, when the latter cursed him, and thrust his hand in his pocket as if reaching for a pistol, and that thereupon he (defendant) pulled out his pistol and fired at Woehrle. A day or two after the shooting, the defendant went to Chicago, where he remained about four weeks, and then returned to St. Louis and gave himself up.

The only question presented by this appeal is as to whether there was any substantial evidence to support the verdict. This point was raised by the motion for a new trial, and is now insisted upon in this court.

In order to convict the defendant of the crime charged in the information in this case, it devolved upon the State to prove that he shot at Elmer Dorn with intent to kill him; not that he shot at Woehrle, and that the shot took effect upon Dorn. [State v. Mulhall, 199 Mo. 202.] The gravamen of the offense was the intent with which the shot was fired; and it is. clear from the evidence that the defendant did not intend to shoot Dorn, for there is no evidence that he even saw him at the time he fired the shot which entered his leg.

There is, we think, an entire failure of evidence to support the verdict, and the judgment should, therefore, be reversed and the defendant discharged. It is so ordered.

All concur.


author: FOX, P. J.

text:
    THE STATE v. WARREN LIBBY, Appellant
    Division Two,
    May 14, 1907.
    1. APPEALS: Overruling Motion for New Trial: No Exception. Where the record shows that appellant failed to preserve by bill of exceptions any exception to the action of the court in overruling the motion for new trial, there is nothing for the appellate court to review except the record proper.
    2. BILL OF EXCEPTIONS: Amendment: By Consent: New Trial: Nunc Pro Tuno Entry. When a bill of exceptions is filed, it becomes a part of the record of the court, and can only be changed or amended by a mine pro tune entry correcting the record. It can not be amended, by consent of defendant’s counsel, the prosecuting attorney, and the judge who tried the case, so as to show an exception saved to the overruling of the motion for new trial; nor is the suggestion of the trial judge that it is usually understood that an exception is taken when a motion for new trial is overruled, sufficient ground for a nunc pro tune entry correcting the record.
    Appeal from Laclede Circuit Court.— Hon. Argus Cox, Judge.
    Atstemed.

      Bon O. Vernon and J. T. Moore for appellant.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    There is nothing before the court except the record proper. The so-called bill of exceptions fails to show that any exceptions were saved to the overruling of defendant’s motion for a new trial. So, even if the transcript of the evidence can be termed a bill of exceptions, mixed up as it is with the record proper, defendant is not entitled to have any of the alleged errors considered by this court. State v. Irvin, 171 Mo. 558; State v. Reed, 89 Mo. .168.
   FOX, P. J.

This cause comes to this court upon appeal by defendant from a judgment of the circuit court of Laclede county, convicting him of feloniously and wilfully maiming and wounding one W. F. Parker. The record discloses that the appellant failed to preserve by bill of exceptions any exception to the action of the court in overruling his motion for a new trial; therefore, there is nothing before the court to review except the record proper. However, it is suggested that the bill of exceptions may be amended by agreement between the prosecuting attorney, and the counsel for the appellant, and we have on file before us letters from defendant’s counsel and from the prosecuting attorney and the judge who tried the case, suggesting this amendment. It is sufficient to say of this suggestion that a bill of exceptions filed and made a part of the record cannot be amended by consent. Such bill of exceptions, when filed in the circuit court of Laclede county, became as much a part of the record proper of that court as any other entry made upon the records by the clerk of the court during any term of such court, and such bill of exceptions can only be changed or amended by a nunc pro tunc entry correcting such record, and the rule is well settled that, in order to justify the making of a nunc pro tunc entry correcting or amending a record, 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. [State v. Jeffors, 64 Mo. l. c. 378; Bank v. Allen, 68 Mo. l. c. 476; Belkin v. Rhodes, 76 Mo. l. c. 650; Saxton v. Smith, 50 Mo. 490; Fletcher v. Coombs, 58 Mo. l. c. 434; Wooldridge v. Quinn, 70 Mo. 370; Blize v. Castlio, 8 Mo. App. l. c. 294; Evans v. Fisher, 26 Mo. App. l. c. 546.] Judge Burgess in Ross v. Railroad, 141 Mo. l. c. 395, citing the authorities to support the announcement of the rule, said: “It has been uniformly held by this court that unless an exception be taken and preserved by bill of exceptions to the action of the court in overruling a motion for a new trial, there is nothing before the Supreme Court for review, save and except the record. [State v. Murray, 126 Mo. 529; State ex rel. Dopkins v. Hitchcock, 86 Mo. 231; Wilson v. Haxby, 76 Mq. 345; Danforth v. Railroad, 123 Mo. 196; State v. Harvey, 105 Mo. 316; McIrvine v. Thompson, 81 Mo. 647; State v. Marshall, 36 Mo. 400.]’'

The suggestion as to the amendment in the form of letters, as heretofore stated, furnishes no basis for the change or amendment of the bill of exceptions, and in fact the letter of the judge of the circuit court clearly indicates that there is no such condition of the record of the circuit court in Laclede county in respect to the filing of this bill of exceptions which would authorize the court to make a nunc pro tunc entry in respect to the exceptions to the action of the trial court in overruling the motion for a new trial, for it is suggested by Judge Cox, who tried the case, that the amendment or change of the record should be made for the reason that it is usually understood, when a motion for new trial is overruled, that an exception is taken. This would fall far short of furnishing sufficient grounds for a nunc pro tunc entry correcting this record; therefore, we see no escape from the conclusion, there being no exceptions properly preserved to the action of the court in overruling the motion for a new trial, that the only thing to be considered by this court is the record proper. The conclusion reached upon this proposition is fully supported by the clear announcement of the rule in State v. Gartrell, 171 Mo. l. c. 504. It was there said by this court, speaking through Judge Gantt, that “it is the settled law of this State that during the whole of the term in which any judicial act is done, the proceedings are considered in fieri, and this applies even to adjourned sessions of the same term, and the record remains, so to speak, in the hreast of the judge or judges of the court, and hence is subject to amendment or alteration as he or they may direct, but after the lapse of the term, or its final adjournment, the judge has no power to change the record further than by mmc pro tunc entries to make the record speak the exact truth of that which actually did occur during the term, and then only when there is sufficient record or minutes of the judge or clerk to authorize such amendment, as it has been repeatedly ruled by the court that such corrections can not be made ‘from outside evidence or from facts existing alone in the breast of the judge, after the end of the term at which the final judgment was rendered.’ [Ross v. Railroad, 141 Mo. 390; Saxton v. Smith, 50 Mo. 490; Dunn v. Raley, 58 Mo. 134; Fletcher v. Coombs, 58 Mo. 430; Jones v. Hart, 60 Mo. 356; Crawford v. Railroad, 171 Mo. 68.] ’ ’

Giving our attention to the examination of the record proper, we find that the amended information filed charges the offense of which the defendant was convicted substantially in such form as has heretofore met the approval of this court; the information, in conformity to the statute, was duly verified by the prosecuting attorney; the record discloses the formal arraignment of the defendant and plea of not guilty; then follows, as recited by the record, the trial of the cause by the jury, which appears in every particular to have conformed to the requirements of the statute. The verdict of the jury is in proper form and was returned into court finding the defendant guilty as. charged and assessing his punishment at imprisonment in the county jail for three months and a fine of one hundred dollars. The judgment entered of record in accordance with the verdict is in due form.

The record being the only matter before us for review, and finding no error in it, the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


text:
    THE STATE v. HARRY HOWARD, Appellant.
    Division Two,
    May 14, 1907.
    1. BURGLARY: Sufficiency of Evidence. Evidence held sufficient to support a conviction of burglary.
    2. BURGLARY AND LARCENY: Conviction of Former. Where defendant is charged with burglary and larceny, the jury may find him guilty of the burglary alone, although the evidence also abundantly establishes the larceny.
    3. ARREST: Warrant: Immaterial. Whether or not the police officer had a warrant for defendant’s arrest at the time he broke into defendant’s house and discovered the stolen property in his possession, is immaterial in this prosecution of defendant for burglary and larceny.
    4. APPEALS: Improper Examination: General Assignment. An assignment that the court erred in permitting the prosecuting attorney to ask immaterial, impertinent and insolent questions, is too general to call for consideration by the appellate court.
    Appeal from Jackson Criminal Court. — How. Jno. W. W\offord, Judge.
    Aeeibmed.

      Philip D. Clear for appellant.
    (1) Error was committed by the jury in finding and the court in accepting a verdict for burglary alone. (2) Error was committed by the court in admitting evidence of officer Bowling that he, with a squad of police, broke open doors to defendant’s home in the night and arrested defendant without a warrant, finding a lot of goods there which later on proved to be defendant’s. The police did not even have information that a misdemeanor had been committed and that Howard was probably guilty of it. This would not have justified Howard’s arrest without a warrant (State v. Grant, 79 Mo. 113; In re Kellam, 55 Kan. 700) even on the street.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    The finding of all of the stolen property in defendant’s possession, the absurd way in which he attempted, to account for the possession thereof, and his effort to escape from the officers, were circumstances which conclusively established the defendant’s guilt. Wills on Cir. Evid., pp. 69, 80 and 81; Burrell on Cir. Evid., p. 452; 3 Greenl. on Evidence, sec. 33.
   GANTT, J.

From a conviction of burglary in the criminal court of Jackson county at Kansas City, the defendant appeals.

The prosecution was commenced November 1,1905, by information filed by the prosecuting attorney. The burglary for which defendant was prosecuted was committed on the 21st of October, 1905, by opening a transom in the building known as 509 West Eighth street, Kansas City. Miss Annabelle Beamguard rented and occupied a room in this house and worked for a restaurant near by. Her custom was to go to work about ten o’clock each morning and work until two-thirty in the afternoon. On the 21st of October, Miss Beamguard had in this room a black suit, a silk petticoat and a grip, with her initials on it, which were of the value of thirty-five dollars. When she.went to work that morning, she locked her door and window and when she returned in the afternoon, she found the door and window still locked but the transom up. She identified her clothing and satchel in the possession of the police, and they were offered in evidence on the trial. The evidence on the part of the State tended to show that the defendant was seen that day in the neighborhood of this building, running. The grip bag was found in a pawnshop in Armourdale, Kansas, pursuant to information given to the police officer by the defendant three or four days after the burglary. The pawnbroker testified that the defendant came to his shop on the 21st of October, and pawned this grip for fifty cents, and gave his name as Brown. The initials had been scratched off. Police officer Bowling testified that about half past nine or ten o ’clock at nig-ht, a day or two after the burglary, he and other officers went together to the place where the defendant was staying; that they surrounded the house, knocked at the front door and demanded admission. There was a light in the house and someone inside asked “who was there,” the officer replied, “Chief of police, who wanted to speak to Mr. Howard,” and immediately the lights were turned out. After various efforts to get the parties within the house to open the door, the officer finally caused the door to be broken open, and as they did so, someone started to go out of the side door, and the officer hurried to that door and found the defendant with his overcoat and hat on. In this room where the defendant was, was found some lady’s clothes, which belonged to Miss Beamguard. The defendant said he had bought this suit in St. Joseph about two weeks before. The evidence further tended to show that the defendant and a Miss Darling were living in this house at the time it was raided by the police. On the part of the defendant the evidence tended to show that he and Miss Darling occupied different rooms, though very friendly with each other; that the defendant purchased a silk petticoat and a dress in St. Joseph sometime prior to this burglary and gave the same to Miss Darling. Miss Darling testified that defendant pawned a watch in order to raise some of the money necessary to pay for these clothes. Another witness for the defendant testified to seeing a man with these clothes trying to sell them down at the stock yards, and that he went to see the defendant for the purpose of trying to make a sale; he also had a valise, which answered the description of the one stolen from Miss Beamguard’s room.

The information is in proper form and no objection is made to it by the defendant. The court instructed fully on the facts necessary to constitute burglary and also instructed fully upon the presumption arising from the recent possession of stolen property. The court also gave the usual ins4 mictions on the presumption of innocence, reasonable doubt and the credibility of witnesses, and refused the following instruction asked by the defendant: 4 4 The court instructs- the jury that if you find from the evidence that the officer, Bowling, who made the arrest of the defendant in his house, had no warrant for the defendant, and did not know that defendant had committed a felony, then .you will consider the evidence relative to breaking in defendant’s house, because defendant did not come out of the house. ’ ’

Various errors are assigned to reverse the judgment.

1. As to the objection that the testimony was insufficient to establish a burglary, the evidence, viewed in the light of the presumption of guilt from recent possession of stolen property, was amply sufficient to justify a conviction. The stolen goods were fully identified by the owner and were shown to have been safely deposited in her room when she went to work at ten o ’clock, and were found in the possession of the defendant on the succeeding night and a portion of them had been pawned by him on the very afternoon that the room of Miss Beamguard had been burglarized. The explanation given by the defendant and his witnesses of his possession of these goods was entirely a matter for the jury, and that they did not accept his story of how he acquired them is evident from their verdict. [State v. James, 194 Mo. 268.] That the jury could find the defendant guilty of burglary and fail to find him guilty of larceny, there can be no doubt, even though the testimony abundantly established the larceny as well as the burglary.

2. The learned counsel for the defendant has devoted much time both in the oral argument and in his brief to his objection that the police officers had no warrant to arrest the defendant at the time they entered his house and discovered the stolen property in his possession. There is no issue of unlawful. arrest or false imprisonment involved in this case. Whether or not the officer exceeded his lawful powers in breaking into the house in which he found the defendant in possession of the stolen property of Miss Beamguard, is wholly immaterial for the purposes of this case. The material facts which this evidence disclosed were the finding of the stolen goods in the possession of the defendant and his explanation of how he came by them. His story was that he had bought them in St. Joseph at a second-hand store three weeks before the night they were found in his possession. The objection that the officer had no warrant-was without merit so far as the issues in this case were involved.

3. It is next insisted that the court erred in permitting the prosecuting attorney to ask immaterial, impertinent and insolent questions. Not only is this assignment too general to call for a discussion by this court, but we have read the whole evidence and we find no reversible error on this account.

4. Finally, it is insisted that the remarks of the prosecuting attorney were such as to grievously prejudice the rights of the defendant. We have carefully read the remarks attributed to the counsel for the State in connection with the evidence in the cause and we find no such deviation from the evidence as to bring this case within that class in which we have reversed canses on account of the conduct of the prosecuting attorney.. As already said, the stolen goods were shown to have been in the possession of the defendant on the very afternoon that Miss Beamguard’s room was burglarized. The defendant himself did not testify or make any explanation of how he came into possession of these goods, but among others he called as a witness James Ellis, who was at the time a prisoner under sentence for burglary, and whose testimony shows him to have been engaged in burglary and thefts as a regular vocation. The only other witness called, by the defendant was the young woman with whom he was living without being married to her.

It is sufficient to say that the explanation of these two witnesses of the- manner in which defendant came into possession of this stolen property was so utterly unreasonable as to call for the severest criticism by the counsel for the State. A careful examination of this whole record discloses no substantial error, but on the contrary it would have been strange had the jury reached any other conclusion than the one they did. The judgment is affirmed.

Fox, P. J., and Burgess, J., concur.


text:
    THE STATE v. PETER WALSH, Jr., Appellant.
    Division Two,
    May 14, 1907.
    1. INFORMATION: Fraudulent Registration. An information, set out in the statement, charging fraudulent registration in an election precinct, heló invalid, on the authority of State v. Keating,'202 Mo. 197.
    2. FRAUDULENT REGISTRATION: Residence: Hearsay Evidence. It was error to permit a witness for the State to testify, in rebuttal, over defendant’s objection, to a conversation witness had, in defendant’s absence, with a lady at a certain number and street, in which conversation she stated that defendant lived there. This was the merest hearsay, and was all the more prejudicial because introduced in rebuttal.
    3. -: Insufficiency of Evidence. Evidence examined and held insufficient to support a conviction of fraudulent registration.
    Appeal from St. Louis City Circuit Court. — Row. James E. Withrow, Judge.
    Reversed.

      Alphonso Howé for appellant.
    (1) The information, particularly the second count, is defective in that it charges that defendant did not reside, etc., “nor in said precinct.” The statute permits registration when one has commenced to reside.. The information makes no distinction between right to register and right to vote. It fails to allege that the ninth precinct of the second ward was an “election precinct,” or that the defendant “personally” applied for registration, or that he was “sworn” or that he “affirmed” before one of the judges to answer questions, or that he applied in person for registration before the “precinct board of registration,” or that defendant signed his name to the “original book of registry,” etc., or that the defendant had no “lawful” right to register in said precinct. Laws 1903, p. 177, sec. 11; State v. Meysenberg, 171 Mo. 1; State v. Miller, 132 Mo. 297; State v. Etchman, 184 Mo. 193; State v. Kyle, 177 Mo. 659; State v. Hagan, 164 Mo. 654; State v. Keating, 202 Mo. 197. (2) The court erred in refusing to give defendant’s instruction in the nature of a demurrer at the close of the State’s case. There was no proof of fraudulent registration. (3) The court erred in permitting witness Bigemann to testify as to conversation with the middle-aged lady at 3129 North Twelfth street to the effect that Peter Walsh, Jr., lived there and in refusing to strike out the incompetent testimony after it was given. Defendant was not present and certainly could not be bound by what some third party would say.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The information, which was accompanied by the affidavit of the circuit attorney, is sufficient in form and substance. (2) There was substantial evidence of defendant’s guilt. It was .clearly shown that he registered in a ward and precinct where he did not reside; in fact, this was conceded by him at the trial. The only excuse offered by him for this conduct was that he made up his mind to change his residence, and that this mental condition was brought about on the registration day, after he had already registered in the precinct where he resided. Without notifying any of the city officers of his intention to move, and without even asking to have the registration books corrected, he suddenly concluded to remain where he then resided. It is a singular fact, however, that the defendant selected his father’s place where he falsely regis-' tered, and that his father had the same name as defendant, and that others were in the habit of falsely registering from that place. And defendant’s father, who testified to defendant’s intentions, is the same person who has signed the bonds of others who have been charged and convicted of false registration, and who falsely stated that they resided at the home of defendant’s father. It may well be said that the defense interposed was worse than no defense, and materially aided the State in making a strong case against the defendant. The evidence of defendant’s guilt was positive and sufficient to convince even the most skeptical. And, where there is substantial evidence of his guilt, the judgment will be affirmed by this court. . State v. Smith, 190 Mo. 706; State v. Payne, 194 Mo. 442; State v. Groves, 194 Mo. 452; State v. Williams, 186 Mo. 128; State v. Williams, 149 Mo. 496; State v. Swisher, 186 Mo. 8.
   BURGESS, J.

On the 19th day of September, 1905, the circuit attorney of the city of St. Louis filed an information, duly verified, in two counts, the first of which charged the defendant with unlawfully, feloniously, knowingly and fraudulently registering in two election precincts in St. Louis on the same day, the second count of the information charging that the defendant unlawfully and fraudulently registered in a precinct in which he did not reside. At the December term, 1905, of the circuit court of said city the defendant was tried and convicted under the second count of the information, and his punishment assessed at imprisonment in the penitentiary for two years. Defendant’s motion for new trial and in arrest being overruled, he appealed.

The said second count of the information is as follows:

“And said Arthur N- Sager, circuit attorney, within and for the city of St. Louis (said city comprising the Eighth Judicial Circuit of the State of Missouri) as aforesaid, now here in court, on behalf of the State of Missouri, further information makes, that in the city of St. Louis, on the nineteenth, twentieth, twenty-first and twenty-second days of September, one thousand nine hundred and four, a general registration of voters, under the laws of the State of Missouri, was held in the said city of St. Louis, and in every ward and precinct of said city of St. Louis (said city of St. Louis being then and there a city having more than three hundred thousand inhabitants) and in the ninth precinct of the second ward of said city of St. Louis by and before the duly appointed and acting judges, clerks and officers of registration of said precinct and ward; and that Peter Walsh, Jr., on the said nineteenth day of September, one thousand nine hundred and four, at the said city of St. Louis, in the said ninth precinct of the second ward, before the said duly appointed, qualified and acting judges and clerks of registration of said precinct, unlawfully, feloniously, knowingly and fraudulently did register as a qualified voter of said precinct and then and there give to the said judges and clerks of election of said precinct, who were then and there acting as officers of registration, his name as Peter Walsh, Jr., and his residence as No. 3129' North Twelfth street, in said precinct, and then and there request said officers of registration to then and there write the name of him, the said Peter Walsh, Jr., upon the registers, poll-books and books of registration of said precinct and to enter the residence of him, the said Peter Walsh, Jr., upon said books, as No. 3129 North Twelth street in said precinct as a qualified voter of said precinct, having the right to register and vote in said precinct, and the said judges and clerks of registration of said precinct aforesaid, then and there did enter upon the registers, poll-books and books of registration of said precinct the name of the said Peter Walsh, Jr., as residing at No. 3129 North Twelfth street, and as being a qualified voter, having the right to register and vote in said precinct, and he, the said Peter Walsh, Jr., then and there feloniously, wilfully, knowingly, unlawfully and fraudulently did write his name upon the said registers, poll-books and books of registration of said precinct as a qualified voter having the right to register and vote in said precinct by then and there writing the signature and name, Peter Walsh, upon said books in the margin provided for the signature of qualified voters when registering; whereas, in truth and in fact the said Peter Walsh, Jr., then and there did not reside at No. 3129 North Twelfth street, nor in the said precinct and had no right to register in said precinct as he, the said Peter Walsh, Jr., then and there well knew; contrary to the form of the statute in such case made and provided and against the peace and dignity of the State.”

The State’s evidence tended to show that a general registration of voters was held in the city of St. Louis on the 19th day of September, 1904, and in the twelfth precinct of the seventeenth ward, and in the ninth precinct of the second ward in said city. That on said day the defendant appeared before the judges and clerks of registration at the polling place in the twelfth precinct of the seventeenth ward, was sworn, and his name entered in the registration book as a qualified voter, the defendant giving his name as Peter Walsh, and his address as 2341 Madison street; that on the same day defendant in like manner registered as a qualified voter in the ninth precinct of the second ward, except that his name was entered as Peter Walsh, Jr., and his residence as 3129 North Twelfth street. In support of the above facts the State introduced in evidence four books identified as the books used by the judges and clerks at said election precincts during the registration held on said 19th day of September. It also appeared from the evidence that defendant’s father, whose name was Peter Walsh, lived at 3129 North Twelfth street.

The defendant testified in his own behalf that he was born in St. Louis, and lived there all his life; that he was a police officer and had been such for six years; that he was married in February, 1904, and at the time of his marrige was living at No. 3129 North Twelfth street in his father’s house, and had lived there with his father about sixteen years; that after his marriage he lived there until the 1st of April, 1904, when he moved to 2341 Madison street. His wife wanted btm to get a house close to where her mother lived on that street, as he worked at night every three months; that in the police department they have two off-days a month, and the 19th day of September was one of his days off duty; that about 11 o’clock in the morning he registered in the twelfth precinct of the seventeenth ward, from 2341 Madison street, and then visited his father at 3129 North Twelfth street. He said it was his custom to go to his father’s house every day he was off duty; that on this day his father spoke to him about coming to live with him, and that he (defendant) said all right; that he had been speáking to his wife about it before, and said, “I think I could get her. to come down now, because she is awful lonesome now, I am so many nights away.” That he told his father that he would come, and also stated to him that he had registered. His father told him, he said, that it would be no harm to register in the precinct in which he lived, and that he could have his name scratched off in the seventeenth ward. That about seven o ’clock that evening he registered in the ninth precinct of the second ward, intending at the time to move to his father’s house and vote in that precinct; that he did not move to his father’s house nor did he vote in that precinct; that he did not have his first registration scratched out because he did not think it necessary. The- original registration book of ward 2, precinct 9, was introduced in evidence showing that defendant’s second registration from 3129 North Twelfth street, in the second ward, was scratched out, and the words “erased, yes,” and “no vote” entered.

Defendant’s wife testified to the expressed desire and intention of her husband to move to his father’s residence, but stated that she refused to go, as she wanted to live near her mother who resided at 2308 Madison street.

Peter Walsh, defendant’s father, testified that at his solicitation defendant agreed, on September 19, to move to his house, but that he did not do so. That defendant told him that he had registered in the ward in which he was then living, and that he said, “Peter, I don’t think that.makes any difference; may be you do not get off easily again; you can get your name rubbed off up there. ’ ’

Defendant’s good reputation for veracity, honesty,, integrity and good citizenship in the community in which he lived was testified to by a number of citizens who were long acquainted with him.

The State, in rebuttal, introduced August Bigemann, who testified that about three days after the registration, while canvassing the votes of the precinct in which the elder Peter Walsh lived, he went to his house, No. 3129' North Twelfth street, and asked who lived there, and that a middle-aged lady living there, whose name he did not know, in answer to his question, said that Peter Walsh, Jr., lived there.

At the close of the evidence, the defendant asked the court to give the following instruction:

The court instructs the jury that, under the evidence in this case, the defendant had a lawful right to register as a qualified voter, residing at No. 2341 Madison street, in the twelfth precinct of the seventeenth ward, and such registration was legal and proper, as shown by the evidence. And if the jury further believe and find from the evidence in this case that the defendant thereafter decided to change his residence to No. 3129 North Twelfth street, in the ninth precinct of the second ward, and registered as a qualified voter from said number with an honest purpose and without fraudulent intent, believing at the time that he had changed his residence from No. 2341 Madison street to said No-. 3129 North Twelfth street, and intending at the time to vote from there, then the jury, if they so find, will acquit the defendant. And if the jury have a reasonable doubt in the premises as to whether or not defendant had a fraudulent intent in so registering, they will likewise acquit the defendant. ’ ’

The court refused to give the said requested instruction, and defendant duly excepted.

This prosecution is based upon section 2120j,.Laws 1903, p. 155, and the information is substantially like that in the case of State v. Keating, 202 Mo. 197, and which was held to be invalid by this court. That case is decisive of this, and for the reasons therein stated the information in the ease in hand must be held invalid.

Another error assigned by the defendant is the action of the court in permitting witness Bigemann, a witness for the State, to testify in rebuttal, over the objection of the defendant, to a conversation he had with a lady at No. 3129 North Twelfth street, some days after the registration, in which conversation she stated that Peter Walsh, Jr., lived there. This was the merest hearsay, and should not have been admitted. The defendant was not present at the time, and was not bound by any such statement. It was all the more prejudicial because in rebuttal.

The vital question in this case, however, is as to whether there is any substantial evidence to sustain the verdict. ' •

Tbe defendant was a police officer, and had been for six years, at the time of the trial. At the time of his marriage, on the 16th day of February, 1904, he was living at No. 3129 North Twelfth street, with his father, and had lived there for about sixteen years prior to his marriage. Defendant and his wife continued to live there until the first of April, when they moved to 2341 Madison street, defendant’s wife wanting to be near her mother, who lived close by on the same street. About eleven o’clock in the forenoon of September 19, 1904, he registered as a qualified voter in the seventeenth ward, twelfth precinct, from 2341 Madison street, and then went to see his father at 3129 North Twelfth street. His father wanted him to move hack to his house, and he agreed to do so. He then told his father that he had registered in the seventeenth ward, when the latter advised him to register in the precinct and ward in which he resided and have his name scratched off the registration hooks in the twelfth precinct of the seventeenth ward. The defendant accordingly registered that evening in- the ninth precinct of the second ward, giving his residence as 3129 North Twelfth street, intending at that time to move there. He did not change his residence, however, his wife being reluctant to move away from her mother, and defendant did not, therefore, find it necessary to scratch off or erase his name from the registration hooks in the precinct and ward in which he then resided. There was no evidence contradictory of these facts. The defendant did not vote, nor attempt to vote, in the ninth precinct of the second ward, and the original registration hook introduced in evidence showed that defendant’s second registration from 3129 • North Twelfth street, ninth precinct, second ward, was scratched out, and the words “erased, yes” and “no vote” entered. It does not appear from the evidence that the defendant practiced any deception whatever, or tried to conceal any fact in relation to the two acts of registration, and it seems clear that at the time of the second registration he acted in good faith, intending at the time to move to 3129 North Twelfth street. Defendant also showed a good reputation for truth, veracity, honesty, integrity and good citizenship in the community in which he lived.

Indeed, the State’s evidence not only failed to prove any fraudulent intent on the part of the defendant in registering as a qualified voter from the ninth, precinct of the second ward, hut it failed absolutely to show that the defendant did not in fact reside at No. 3129 North Twelfth street, in said ward and precinct, at the time of said registration. The two sets of registration hooks introduced in evidence afforded no stronger proof that the defendant resided at 2341 Madison street than they did that he resided at 3129 North Twelfth street, so that, for the purpose of showing his real residence, they were valueless. It is true that witness Tibbies, one of the clerks of registration in the twelfth precinct of the seventeenth ward, testified that defendant, at the time he registered there, was living at 2341 Madison street; but witness Schoenbeck, one of the judges of registration in the ninth precinct of the second ward, when asked if he knew where defendant resided at the time he registered from 3129 North Twelfth street, answered, “No, sir.” These were the only witnesses for the State who testified as to the defendant’s residence. Although the defendant did reside at 2341 Madison street at the time he registered in the seventeenth ward, it was quite possible for him to move to 3129 North Twelfth street the same day and register in the second ward, for, according to the defendant’s evidence, which .was not contradicted, about eight hours had elapsed between the time of the first registration and the second. It devolved upon the State to prove by competent evidence its charge that the defendant fraudulently registered as a qualified voter in a precinct in which he did not reside, which the State wholly failed to do. But for the evidence on the part of the defendant, there would be no way of telling where in fact the defendant did reside at the time he registered as a qualified voter' in the ninth precinct of the second ward.

The record is barren of any substantial evidence tending to prove the defendant guilty of the criminal act intended to be charged in the information, and we do not think the verdict should he permitted to stand. We, therefore, reverse the judgment, and discharge the defendant.

All concur.


text:
    THE STATE v. A. M. DAVIS, Appellant.
    Division Two,
    May 14, 1907.
    1. CHANGE OF VENUE: Application Properly Overruled. When the case was called for trial, the State announced ready, but defendant asked for time in which to prepare an application for a continuance, which was granted. While waiting for the supposed application for a continuance, the court learned that defendant was preparing an application for a change of venue, whereupon the court called the case for trial, and so notified the defendant, who, after the jury were sworn upon their voir dire and the State had finished its examination of the jurors, filed his application for a change of venue. Held, that the application was properly overruled.
    2. INSTRUCTION: Time When Offense Committed: Error In Defendant’s Favor. An instruction which limits the time within which the jury might find the offense to have been committed, to the year 1906, instead of within three years, prior to the date of the filing of the information, though erroneous, is an error in defendant’s favor, of which he cannot complain.
    3. GAMBLING: Crap Table: Sufficiency of Evidence. Evidence held sufficient to support the verdict finding defendant guilty of setting up and operating a crap table for the purpose of playing games of chance for money and property.
    Appeal from Jasper Circuit Court. — Ho». Howard Gray, Judge.
    Affiemed.

      Clay <& Sheppard and M. R. Lively for appellant.
    (1) When the defendant filed his application for a change of venue from the trial judge, he had no further jurisdiction in the case. R. S. 1899, sec. 2594; State v. Shipman, 93 Mo. 147; State v. Greenwade, 72 Mo. 304. (2) The court erred in giving instruction 2. Under this instruction, if the jury should have found from the evidence that the- defendant, in the county of Jasper and State of Missouri, set up and operated a certain gambling device, etc., just so it was prior to the 26th of February, 1906, they could find him guilty. The time should have been limited to three years previous to the time of filing the information.

      Herbert 8. Haclley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) No error was committed by the trial court in overruling defendant’s application for a change of venue. It is hardly necessary to argue that this application came too late, especially as no notice was given -to the State’s counsel. (2) The evidence, and all the evidence, showed that the crime charged was committed during the month of February, 1906, and prior to the filing of the information, which was February 26, 1906. So the jury could not possibly have been misled; neither was it possible for the defendant to have been convicted of any crime committed prior to the time limited by the statute in such cases.
   FOX, P. J.

From a judgment of the circuit court of Jasper county, Missouri, convicting him of setting up, keeping and operating a certain table and gambling device, commonly called a “crap table,” devised and designed for the purpose of playing games of chance for money and property, defendant appeals. On February 26, 1906, the prosecuting attorney of Jasper county filed an information, and on March 6, 1906, he filed an amended information, duly verified, charging that the defendant on the — day of February, 1906, feloniously did set up, keep- and operate a certain table and gambling device, commonly called a “crap table,” which table was adapted, devised and designed for the purpose of playing games of chance for money and property. At the March term, 1906, of the Jasper Circuit Court, and at the convening of court on the 14th day of March, this being the first case on the docket for that day, the State, by W. N. Andrews, prosecuting attorney, announced ready for trial, but the defendant announced that he was not ready and asked the court to grant him time to prepare an application for a continuance. This request was granted. While waiting for the supposed application for a continuance, the court ascertained that the defendant was preparing an application for a change of venue, whereupon the court called the case for trial and so notified the defendant. The jury was sworn to answer questions and the State proceeded to make its examination and finished the same, when the defendant filed the following applica-. tion and affidavits for a change of venue from the Hon. Howard Gray, the trial judge of the Jasper Circuit Court:

State of Missouri, Plaintiff, vs. A. M. Davis, Defendant.
“In the Circuit Court oe Jasper County, Mo.
“March Term, at Carthage, 1906.
“Application for Change of Venue.
‘ ‘ Comes now the defendant, A. M. Davis, and represents and shows to the court that he cannot safely proceed to the trial of said cause where it is now pending in Division No. One of said court, the Hon. Howard Gray, Judge, on account of the bias and prejudice of said Hon. Howard Gray, and that he cannot have a fair trial of said cause before said judge.
“Wherefore, he prays to have the change of venue as by law provided. A. M. Davis.
“State of Missouri, County of Jasper, ss.
“I, A. M. Davis, being duly sworn, upon my oath depose and say that I have read the foregoing application for change of venue, and that the matters and facts therein contained are true, and that the Hon. Howard Gray, Judge of Division No. One, is biased and prejudiced in said cause and I cannot have a fair trial of said cause before the Hon. Howard Gray.
1 ‘ That said information of the bias and prejudice of the Hon. Howard Gray first came to this applicant since the adjourning of this court yesterday, Tuesday, the 13th day of March, 1906.. A. M. Davis.
“Subscribed and sworn to before me this 14th day of Mch., 1906. ' A. E. Cabmean, Clerk.
“ (Seal.) “By J. W. Gray, D. C.
“State of Missouri, County of Jasper, ss.
“We, Bert Mann and Walter Miller, upon our oath depose and say that we have read and know the contents of the foregoing application for a change of venue, and that the same is true, and that we are residents and citizens of Jasper county, Mo., and are not of kin or counsel to the defendant.
“Bert Mann,
“Walter Miller.
“Subscribed and sworn to before me this 14th day of March, 1906. A. F. Carmean, Clerk.
“ (Seal.) “ By J. W. Gray.”

The court overruled this application, and in doing so made the following order:

“Now comes the defendant and files herein his application for a change of venue in this case. By consent the same is taken up, and being seen, heard and fully understood by the court, the same is overruled.” To which action of the court the defendant objected and excepted at the time.

Whereupon, the defendant examined the jurors and proper challenges being made, the case proceeded. The testimony upon the part of the State tended to show that Sheriff Marrs, Deputy Sheriff Marquiss and Deputy Sheriff Keir raided a certain room in the second story over the Woodbine saloon in the city of Joplin on one Saturday night in the month of February, 1906. Prior to forcing their way into said room, these officers went up in an alley, climed over a fence and got upon a flat roof of a one-story building and looked into the windows to see what was going on in said room. They saw a number of men up there, including the defendant, who were engaged in gambling. The defendant was standing behind a crap table, dealing craps, and several others were around the table on the outside, rolling two dice across the table. The defendant was paying the bets and cashing in the checks. The others were standing on the outside of the table and were placing their checks down on the table and rolling the dice. The table was identified by the officers as what is commonly termed a crap table, and was about four feet high with a railing around it about four or five inches high, and was eight feet long by three or four feet wide, and covered with a green cloth. On one side of the table, about the center thereof, there was a little space cut out, and in this space the defendant was standing while the game was in progress. On this table were numbers corresponding with numbers that can be made on a pair of dice, and on this particular table were I, 5, 6, 8, 9 and 10. The word “come” was also printed on the table, and this word is one that is used by gamblers in playing said game of chance. Dice were also found on the table, and the defendant was seen catching the dice as others would throw them, and throwing them bade to the player. The defendant was also seen dealing certain colored checks, round flat checks, which he gave in exchange for money. The officers further testified that the table which the defendant had charge of was the character of table devised, designed and made

for playing the game of craps, and was commonly termed a ‘‘crap table.” The defendant also had a little ball, that looked like a half pool ball, which was used for some purpose, not explained by the evidence in this ease.

The defendant offered no evidence.

At the close of the evidence the court instructed the jury and the cause being submitted to them they returned a verdict finding the defendant guilty and assessing his punishment at two years imprisonment in the State penitentiary. Motions for new trial and in arrest of judgment being overruled, judgment of sentence in accordance with the verdict was entered of record, and from this judgment the defendant in proper form and due time prosecuted his appeal to this court, and the record is now before us for review.

OPINION.

The record before us in this case discloses, as heretofore indicated by the statement of the case, but one legal proposition, that is, the propriety of the action of the trial court in overruling defendant’s application for a change of venue. We have carefully considered the disclosures of the record upon this question. It is therein recited that, ‘1 at the convening of court on the said 14th day of March, 1906, this being the first case on the docket for that day, the State, by W. N. Andrews, prosecuting attorney, announced ready for trial, but the defendant announced that he was not ready and asked the court to grant him time to prepare an application for a continuance. This request was granted. While waiting for the supposed application for a continuance, the court learned and ascertained that the defendant was preparing an application for a change of venue, whereupon the court called the case for trial, and so notified the defendant. The jury was sworn to answer questions and the State proceeded to make its examination, and finished the same, when the defendant filed the following application for a change of venue. ’ ’ We omit reproducing the form of the application, as it has heretofore been inserted in the statement of the cause.

We deem it only necessary to say, upon this assignment of error as disclosed by the record, that the action of the trial court in overruling the application for a change of venue was proper. Learned counsel for appellant rely upon the conclusions reached in State v. Spivey, 191 Mo. 87, as supporting the contention in the case at bar. An examination of the Spivey ease will demonstrate a very clear distinction between that case and the case now under consideration. While in the Spivey case there was no previous notice given that an application for a change of venue would be made, yet upon the day that the case was called for trial counsel presented an application and the prosecuting attorney appeared and resisted it and introduced testimony in respect to it. In this case, it was called for trial and the State announced ready; counsel for defendant asked the court for a little time in which io prepare an application for a continuance. The court very readily granted the request, but it seems, as shown by the record, that counsel, instead of preparing an application for a continuance, were preparing an application for a change of venue. No notice or even an intimation on the part of counsel had been made that an application for a change of venue would be presented, and when the court learned that counsel did not want time in which to prepare an application for a continuance, but an application along entirely different lines, doubtless concluded they were not availing themselves of the request it had so kindly granted and notified the defendant and proceeded to empanel the jury. It was clearly the duty of counsel, after making the request that they wanted time in which to file an application for a continuance, if they had changed their views as to filing such application, and desired to file an application for a change of venue, to have at once notified the court of such change of views, and their failure to do so places them in no position to complain of the action of the court in promptly overruling the application for a change of venue. The witnesses had to he secured to support the application for a change of venue, and it can only be reasonably inferred that defendant’s counsel knew at the time the case was called for trial that they were going to present an application for a change of venue, and if so it was their duty to frankly so state to the court. There was no error in overruling this application.

Appellant complains of instruction 2 given by the court. The criticism of this instruction is based upon the theory that the court failed to tell the jury that if they found that the defendant committed the offense at any time within three years before the date of the filing of the information, they would find him guilty. The instruction told the jury that “if they believed from the evidence in this case that the defendant, at the county of Jasper and State of Missouri, in the year 1906, and at any time therein prior to the 26th day of February, 1906, did wilfully, unlawfully and feloniously keep a certain gambling device and table, commonly called a crap table, and that the same was then and there a gambling device adapted, devised and designed for the purpose of playing games of chance for money or property,” etc., they would find the defendant guilty.' This error was clearly in favor of the defendant. It limited the time in which the jury might find the commission of the acts to the year 1906, when in fact the jury were at liberty to find that he committed them at anytime within three years prior to the time of the filing of the information. The testimony clearly shows that the acts constituting the offense were committed in the year 1906 and prior to February 26, of that year, and while this instruction is erroneous, it is not an error of which the defendant can complain.

The testimony of the State clearly supports the verdict of the jury, and finding no reversible error, the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


text:
    THE STATE v. MONROE MOORE, Appellant.
    Division Two,
    May 14, 1907.
    1. BILL OF EXCEPTIONS: Expiration of Time: Mistake. A bill of exceptions filed after the expiration of the time granted cannot be considered on appeal. And the fact that defendant’s counsel was misled by the prosecuting attorney as to the expiration of the time, does- not authorize the appellate court to consider the bill of exceptions filed after the time had expired.
    2. INFORMATION: Robbery: Time. Time is not the essence of the offense of robbery. And an information charging this offense is not defective because it fails to specify the particular day of the month on which the alleged robbery was committed.
    3. -: -: Venue. Where an information correctly lays the venue in the margin, it is not invalid because the venue is not stated in the body of the information.
    4. -: -: Fear of Injury: Nature of Instrument. An Information charging robbery is not invalid because it does not specify the nature of the instrument or the means by which the prosecuting witness was put in fear of immediate injury to his person.
    Appeal from Pemiscot Circuit Court. — How. Henry G. Riley, Judge.
    Affirmed.

      C. P. Haiükins for appellant.
    (1) The information is had; it does not conform to the law; it fails to inform the defendant the day of the month said alleged offense was committed; neither does it inform him with what he is charged with having put the prosecuting witness in fear of immediate injury. (2) Nowhere in the information does it charge defendant with having committed this or any other offense in the State of Missouri, but simply charges same was committed in Pemiscot county. (3) The prosecuting attorney fails to sign the information officially, but as a private individual, and does not say he is the prosecuting attorney of Pemiscot county. State v. Lawler, 130 Mo. 367; State v. Bruce, 77 Mo. 193; State v. Kelm, 79 Mo. 515; State v. Anderson, 84 Mo. 524; State v. Russell, 88 Mo. 648; State v. Shortwell, 93 Mo. 123; State v. Green, 111 Mo. 585; State v. Reed, 117 Mo. 604.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    The information, which is accompanied, by the affidavit of the prosecuting attorney, is sufficient in form and substance. Kelley’s Crim. Law, sec. 625; R. S. 1899, sec. 1893; State v. Lamb, 141 Mo. 298.
   GANTT, J.

The defendant was arrested and tried upon an information filed by the prosecuting attorney of Pemiscot county charging him with having feloniously assaulted and robbed one Prank Lawson of the sum of three dollars and fifty cents on the — day of November, 1905. The defendant was tried .and convicted at the same term at which the information was filed, and sentenced to five years imprisonment in the penitentiary. Prom that sentence, he appeals to this court. There is no hill of exceptions in the transcript owing to the mistake and oversight of the counsel for the defendant as to the expiration of the time for the filing of the bill. Conceding that the counsel for the defendant was misled by the prosecuting attorney, we are powerless to grant him any relief on that ground. It is not asserted that the prosecuting attorney wilfully misstated the time when the leave would expire, and it was the duty of the counsel for defendant to ascertain that fact for himself, especially when it appears that he thought the time expired on the first of March, and had ample time to have obtained a written stipulation from the prosecuting attorney extending the time; this was not done. Therefore, we are restricted to the examination of the record proper for reversible error.

1. The information is assailed on the ground that it fails to inform the defendant the day of the month on which the alleged robbery was committed. The information charges that the robbery was committed on the — day of November, 1905. ' Time was not the essence-of this offense. Any time within three years prior to the finding of the indictment was sufficient. Section 2535, Revised Statutes 1899-, expressly provides that “No indictment or information shall be deemed invalid, nor shall the trial, judgment-or other proceedings thereon be stayed, arrested or in any manner affected . . . for omitting to state the time at which the offense was committed, in any case where time is not of the essence of the offense, nor for stating the time imperfectly.” [State v. Magrath, 19 Mo. 678; State v. Ward, 74 Mo. l. c. 255, 256.] Another objection to the information is that it does not charge the defendant with having committed the said robbery in the State of Missouri, but simply charges the same was committed in Pemiscot county. The information lays the venue in the margin, and section 2527, Revised Statutes 1899, provides: “It shall not be necessary to state any venue-in the body of any indictment or information; bnt the county or other jurisdiction named in the margin thereof shall be taken to be the venue for all the facts stated in the body of the same.” [State v. Hunt, 190 Mo. 353.] The information was well enough in this respect. The objection that the prosecuting attorney did not sign the information officially is- not borne out by the record. Both in the body of the information and in his signature to the information, it- appears that he was the prosecuting attorney of Pemiscot county.

Finally, it is insisted that the information is bad in that it fails to inform the defendant of the nature of the instrument or the means by which he put the prosecuting witness in fear of immediate injury to his person. As to this neither the common law nor our statute requires the grand jury or the prosecuting attorney to set out the means by which the victim of a robbery is put in fear. [Train & Heard, Prec. of Indictments, 461; 3 Chitty, Criminal Law, 806; State v. Lamb, 141 Mo. 298; State v. Montgomery, 181 Mo. 19.]

No error appearing in the information or in the arraignment, impaneling of the jury or the return of the verdict or sentence of the court, the judgment of the circuit court must be and is affirmed.

Fox, P. J., and Burgess, J., concur.