text:
    THE STATE v. HENRY McKENZIE, Appellant.
    Division Two,
    May 26, 1910.
    1. CONTINUANCE: Delaying Trials. An application which alleges a custom of delaying trials beyond the term at which the information is filed, states no legal ground for a continuance in a murder case.
    2. -: Absent Witnesses. It is not error to refuse a continuance on account of absent witnesses where no subpoenas have been issued for them, and the application reveals no diligence in searching for them, and it is not made to appear what material testimony they would give were they present.
    3. OBJECTIONS: Immaterial: No Answer. An objection that a question is immaterial amounts in law to no objection whatever. Besides, if the witness made no answer to the question, nothing prejudicial to defendant was elicited by it.
    4. RES GESTAE: Statements by Defendant. Statements made by defendant to the effect that a few minutes after the homicide, and after he had left its scene and gone to the house of his sister, he talked to her and said he had killed deceased in his own defense and he was in the right, and for her to go and employ counsel, are not a part of the res gestae, but self-serving statements, and the trial court properly excluded them when defendant offered to show them by his sister. They were not an undesigned and necessary incident of the litigated act.

      5. INSTRUCTION: Faulty: Request for Proper. An instruction crudely expressed and not in proper form, is, nevertheless, to be considered a request for a proper instruction on the subject; and, if there is evidence upon which to base it, one correctly worded should be given.
    6. -: Manslaughter in Third Degree: Intentional Killing. There can be no such thing as manslaughter in the third degree when the killing is intentional; and where defendant’s own testimony shows, if it establishes anything, that the killing was intentional, no instruction on manslaughter in the third degree should be given.
    7. -: Manslaughter in the Fourth Degree: Provocation. Where the testimony totally fails to show any provocation which would make the killing manslaughter in the fourth degree, no instruction on that subject should be given.
    8. REMARKS OF COUNSEL. A remark of the State’s attorney in his argument to the jury that a certain State’s witness “was an honest man and did not go to his sister’s to eat breakfast like defendant did,” and other remarks complained of, cannot be held to have been error.
    Appeal from Jackson Criminal Court. — -No». E. E. Porterfield, Judge.
    Affirmed.
    P. D. Clear for appellant.
    (1) Upon a casual examination of the application for continuance it will he seen that it is in regular form. In fact, Judge Porterfield overruled said application on the ground that the evidence contained in the affidavit was immaterial. This ground is wholly untenable, since proof that deceased had a knife near his hand just after he fell shows plainly that he came from behind the counter around to the door to cut and injure defendant. The overruling of said application was plainly reversible error. State v. Farrow, 74 Mo. 531. In Farrow case there were two other witnesses introduced to prove the main defense, an alibi, while here defendant was precluded by said ruling from any witness to prove the main facts of his self-defense. .(2) Defendant offered to prove that within two minutes of the homicide, he told his sister, Mrs. Wilkerson, that he had killed deceased, was in the right, and to go and employ a lawyer. This evidence rwas primarily competent as res gestae, being so close to the main fact, and being the first expression to anyone after the homicide. State v. Castor, 93 Mo. 251. (3) There was direct evidence by defendant that he shot to keep deceased off and not to kill deceased. This establishes a plain ease for an instruction on manslaughter in the third degree. State v. McKenzie, 102 Mo. 633; State v. Watson, 95 Mo. 411; State v. Edwards, 70 Mo. 480. It is long since settled law that “defendant had a right to testify as to his intent, and his testimony for the purpose of instructing the jury occupied the same footing as that of any other witness.” State v. Palmer, 88 Mo. 573; State v. Banks, 73 Mo. 592. The meat counter was about twelve feet back, south from the door, extending from the east wall nearly to the west wall. Behind this was the meat block and behind the block was the meat refrigerator, from which the liver in question was, of course, taken, and cut on the block and placed on the counter. Deceased came from behind this counter around the west end to a position in front and east of the small ice box where, or nearly where, he fell, so that his head would reach to two feet from the door. Then there was substantial evidence that deceased picked up the knife found underneath the-counter from where he laid it on cutting the liver, and ran around the counter with it drawn in a striking attitude. Suppose now deceased approached defendant with said knife drawn, near enough to do bodily harm, but not near enough to do great bodily harm, and the jury so found, then defendant would not have complete self-defense, but only manslaughter defense. Because here we would have a lawful provocation, which legally' begets passion and negatives malice, but not sufficient provocation to completely justify a homicide. Wherever defendant has substantial rights — as to hold property -peaceably, State v. Matthews, 148 Mo. 197, or to keep his daughter free from unlawful sexual intercourse, State v. Gruggin, 147 Mo. 39, or to keep himself free from attack with a weapon, State v. Garrison, Í47 Mo. 557 — and such attack and deprivation of right reasonably excites passion, and while in such passion he commits a homicide, only manslaughter will lie. In the Garrison case, threats accompanied the attempt on defendant’s life with a hatchet, but the hatchet was already thrown when defendant shot, and it was unanimously held a proper instance for manslaughter. Here deceased, just before starting around counter, said, in a threatening manner, to defendant, “By God, you will take it,” and kept on after defendant around the counter, out in front thereof, until he got to a position near the door, which makes a stronger case of attempted violence, without actual battery, than in the Garrison case. There the court said, ‘ ‘ But if the homicide be committed under a less degree of fear and in the excitement produced by the epithet and threats of deceased,” etc., then the killing was manslaughter. State v. Elliott, 98 Mo. 157.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
    (1) The first c.omplaint made in appellant’s brief is that the court erred in denying him a continuance, (a). The record shows that the information was filed November 10, 1908, the crime having been committed October 23, 1908, and appellant having been under arrest since this last date. On December 12, 1908, appellant was arraigned. The actual trial occurred December 23 and 24, 1908. The custom of delaying trials until later terms cannot be urged as a ground of continuance. Sixty days elapsed between the date of 'appellant’s arrest and his trial. One delay of a week was granted appellant, and the record shows no complaint on the score that the time then given was too short, (b). As to the allegations respecting the witnesses Tim Jones and S. Burnett, appellant did not procure the issuance of any subpoena for either of them. Neither does the application indicate specifically what diligence had been used or means employed in “searching” for these witnesses. The statute furnishes a plain answer to the contention concerning these witnesses. R. S. 1899, sec. 2600; State v. Woodward, 182 Mo. 419. Further, appellant testified it was “Tim Holmes” instead of “Tim Jones,” who told him of the threats against his life. (c). As to the witness E. A. Brown, the application states that appellant “used every effort in keeping informed of the whereabouts of said witness Brown.” It does not appear when appellant first learned to what Brown would testify. It is alleged in the application that the case had been set for December 16, 1908. No subpoena to secure Brown’s appearance on that date was issued. The court is not advised how or through whom Brown was located on December 18, whether Brown was married or single, what was his occupation, who it was that “creditably informed” appellant that Brown would return to Kansas City “after the holidays,” how long “after the holidays” Brown would return, in what part of Kansas City Brown had his “home,” nor what connection with or information concerning Brown “J. Huey” at room 14, 3d floor, No. 404 east Fourteenth street, Kansas City, had, nor whether Brown resided in Kansas City, Mo., or Kansas City, Kansas. Appellant alleges that he “located said Brown” and then sent the marshal to “J. Huey” to “inquire as to the location of said Brown.” It is not stated where Brown went, what his mission was, nor that Huey had any information relating to Brown which he could, or would have communicated to the marshal. On the showing in the application the trial court did not abuse its discretion in refusing further continuance. State v. Woodward, 182 Mo. 419; State v. Devorss, 221 Mo. 474; State v. Williams, 170 Mo. 206. This court is not confined to the reasons attributed by appellant to the trial court. State v. Blitz, 17.1 Mo. 536. The case cited by appellant is wholly unlike this case and is an authority rather against appellant than in his favor. State v. Farrow, 74 Mo. 533. (2) The offer to prove by appellant that he declared his innocence in “from two to five minutes” after the killing, was properly refused. It is now contended that this was competent as a part of the res gestae. With this contention the cases are not in accord. State v. Walker, 78 Mo. 386. “Instinctiveness is the requisite.” State v. Gabriel, 88 Mo. 639. The ease of State v. Castor, cited by appellant, is not in point. The admissibility of explanations of possession of stolen property is based upon a rule not applicable to cases of homicide. The Castor case demonstrates this. (3) Appellant complains that his offered instructions on manslaughter in the third and fourth degrees were not given. Neither of the instructions offered was in proper form. Further, this was no case for such instructions. The evidence for the State made out a case of murder in either the first or second degree and the defense was self-defense and that alone. The offered instructions were properly refused. The principles laid dotwn in a late case by this court, wherein are discussed most of the eases cited by appellant, dispose of this particular contention. State v. Myers, 221 Mo. 617. “Defendant best knew his purpose in firing the fatal shot and an instruction inconsistent with his testimony on that head should not have been given.” State v. Reed, 137 Mo. 138; State v. Gartrell, 171 Mo. 522. The suggestion that the court might divide up defendant’s testimony and instruct as if it were only partly true, is not supported by any authority. State v. Barnett, 203 Mo. 661; State v: Olay, 201 Mo. 688. The case of State v. Elliott, 98 Mo. 157, is wholly unlike the case at bar. In this ease there was evidence of “a previous grudge,” and, besides, if appellant’s testimony is true there was no room for half-way measures.
   GANTT, P. J.

This is an appeal from a judgment of the criminal court of Jackson county, sentencing the defendant to imprisonment in the penitentiary for life, on a charge of murder in the first degree.

The prosecution was commenced by information filed by the prosecuting attorney on the 10th of November, 1908. The information is a full and complete charge of murder in the first degree, on the 23d day of October, 190*8, of one Samuel H. Moog, by the defendant Henry McKenzie, with a revolver. As the information is in the often approved form, it is unnecessary to set it forth at length.

The defendant was arrested and duly arraigned in Division No. One of said criminal court, before the Hon. Ralph Latshaw, the judge thereof, on the 12th day of December, 1908, and entered his plea of not guilty and the case was set down for hearing on December 16, 1908. The cause was then continued to the 21st of December, on which last mentioned date the defendant filed his motion for a continuance, which was overruled, and thereupon he made his application for change of venue to Division No. Two of" said court, which was granted and the cause was transferred to said Division No. Two. Afterwards on the same day the application for continuance was renewed before Judge Porterfield in Division No. Two, and was overruled, and both parties announcing ready for trial, a jury was impaneled and sworn, and after hearing the testimony and instructions of the court, a verdict of guilty of murder in the first degree was rendered, and the defendant’s punishment assessed at imprisonment in the penitentiary for life. A timely motion for new trial was filed, heard and overruled and the defendant sentenced according to the verdict. Leave was given the defendant by Judge Porterfield to file his bill of exceptions on or before March 1, 1909. It appears that further extensions of time for filing the bill were granted by Judge Latshaw and the bill was finally filed within the time as so extended, but not within the time extended by Judge Porterfield, who tried the case. The bill of exceptions was signed by Judge Porterfield.

The testimony on behalf of the State tended to show that for sometime prior to the day upon which he was shot and killed by the defendant, the deceased, Samuel II. Moog, conducted a meat shop or market on the south side of Independence avenue in Kansas City, near the corner of Independence and Troost avenues. The deceased was a German by birth and fifty-five years old at the time of his death. The defendant at the time of the homicide was about twenty-seven years old. Oh the morning of October 23,1908, George Hughes, a porter in the saloon nearly opposite the hutcher shop of the deceased, heard a shot fired in deceased’s shop just as the witness was leaving the saloon upon an errand for his employer. Almost immediately after hearing the shot he saw the defendant run out of the shop, close the door behind him and run down a narrow passageway just east of the shop. Defendant displayed no weapon at this time. There were no other persons on the street near the shop at this juncture save the porter and the defendant. Hughes immediately stepped back to the door of the saloon and informed his employer and those in the saloon of the shooting, and these persons went immediately to the scene of the homicide and found no person save the deceased in the shop. When they entered the butcher shop they found the deceased lying on the floor in a pool of blood and in a dying condition. There were no weapons near the dying man, 'though there was a meat knife on the meat block back of the counter and another meat knife under the counter. The deceased was lying in front of the counter between which and the street door there was a space of about seven feet. The testimony of the coroner established that death resulted from a bullet wound. The ball had entered on the right side of the lower lip, passed through the root of the tongue and into the spinal column at the first cervical vertebra and the wound was necessarily and almost instantaneously fatal.

At the time of the homicide and some two months prior thereto the defendant liyed at the house of a woman named Harris, the entrance to which house was a few feet from the rear door of deceased’s meat shop. The evidence tended to show that the defendant’s relations with the Harris woman were of an improper character and he had indicated his jealousy of her and the deceased by following her when she would go to the shop, waiting for her on the outside, and complaining when she came out. Immediately after the shooting the defendant entered the rear door of the house next to that in which he and the Harris woman lived, and' closed the door behind him and stood up-with his back to the door. In a few minutes the report of the shooting of deceased was brought to this house by a woman of the name of Clark, and was commented upon by those in the house in the presence of the defendant, but he said nothing whatever about the matter. In a few minutes after this the defendant was arrested in the house occupied by him and the Plarris 'woman. When the officer went into the room, he says the defendant was walking up and down in the room backwards and forwards and seemed to be1 very nervous. The officer asked him what was the matter with him and defendant answered, “I thought I heard a shot out there.” The officer then arrested the defendant and one Frank Foster, another negro, and took them into the butcher shop, and waited there until another officer called with the police wagon, whereupon they took the defendant Foster and Ed. Harris to the police station. The officer inquired of the defendant what he was doing at the time the shot was fired, and he said he had gone out to work that morning, hut had not worked because of the inclemency of the weather and had just reached home and was changing his clothes. The officer asked him if he had a revolver, and at first he denied having one, but later admitted that he did. On the next day the defendant made a statement, which was reduced to writing and signed by .him. This statement, after the preliminary proof that it was entirely voluntary on the part of the defendant and without any threat or coercion, was admitted in evidence to the jury. In that statement he said that he had been living with the woman they called Miss Harris for about three months; that he worked for G-orgeson & Brink, plumbers; that he did not own a pistol and never did; that on the morning of October 23d, he went into Moog’s butcher shop about eight o’clock in the morning and bought a nickel’s worth of liver and took it up -to Mrs. Wilkerson’s, his sister’s, to cook it, and then went out with, a fellow called George, who lived in a big brick flat on Troost avenue with John Harold, who was a janitor there. He and Harold went to his sister’s on Fourteenth and Charlotte and stayed there a couple of hours and then went to his other sister’s, Eliza Teasdale, at Nineteenth and Locust, and stayed there about an hour, and then came back home and went into the house, where he sat down and two fellows came in to see Eddie Harris. Then defendant went up to Miss Holly’s and while there Mrs. Clark came by and told them Mr. Moog had been shot. Whereupon, they all went out to the chute or passageway by the butcher shop together. They stood there and looked around, and then the officer arrested him.

Three days later the defendant made a second statement -which was also reduced to writing and sigred by him in which he declared that when he visited the deceased’s shop to make the purchase of the liver, deceased waited on him; that the meat was not good, and he, defendant, refused to take it, and asked for his money; that deceased said, “By G — d, you will take it,” and picked up a butcher knife and started around the counter; that he, defendant, backed toward the door, telling the deceased to stop and when deceased refused to do so, he, defendant, fired to save his own. life; that he then placed the pistol in his pocket, and taking the meat which he had purchased, went out of the shop and around to his sister’s home for the purpose of cooking the meat mentioned. He put the meat on the stove, went out on the street, and then to the saloon across Independence avenue, where he turned his pistol over to Mr. *Welch, the proprietor of the saloon. There was also evidence that the defendant and another negro had bought beer that morning which they took to the home of the defendant’s sister, in the rear of deceased’s shop, and also evidence from the defendant’s sister, tending to show that defendant did not bring to her house the liver which he stated he purchased just before he shot and killed the deceased.

In his own behalf, the defendant testified that he was regularly employed by a firm of plumbers, but was not working on the 23d of October, 1908, because of bad weather; that he came home that day about noon to Mrs. Harris’s where he was boarding at the time; that he went into the deceased’s shop to purchase liver on that day, and asking for a nickel’s worth, laid the money on the counter; the deceased sliced the meat with a large butcher knife; the appearance and odor of the meat was bad and defendant told deceased it was spoiled and that he wanted good liver or his money back; the deceased said, “By G — d, you will take that or none at all.” The defendant said he would not, thereupon deceased rushed at him with his knife, and the defendant backed up to the door and failing to get the door open, drew a revolver and fired; that he fired for the purpose of stopping the deceased and not to kill him; that he fired to escape the deceased’s knife; that this time there was no other person in the shop, but as he backed out of the door after the deceased fell “a kind of Jewish-looking fellow” entered and picked up the knife which the deceased had dropped. Defendant testified that when he reached the sidewalk there were several persons there, some colored and some white, but that he had seen none of these persons in the court room; he said that after he left the shop, he went around to his sister’s house, and explained his silence, when told of the shooting, by saying that he wanted to tell his sister what he had done and' wanted to employ an attorney, as he “thought he had not done anything more than any other man would have done to protect his life.” He stated that his second statement made to the police officers was elicited by means of threats; though he refused to make any statement to the officers who threatened him, and made the second statement on the day following the said threats, to different officers. He also retracted that part of -his statement as to his having left his revolver with Mr. Welch, the saloon keeper, saying that he did not remember just what he did do with the revolver. He laid it down, but did not know where. He adhered to his statement that he had taken home the meat he had purchased and put it in a pan on the stove. He denied that he was jealous of the Harris woman, denying that he and she were living together as man and wife, and declared that he had no ill feeling toward the deceased. On cross-examination he testified that the revolver he had used had been given him by a friend of his the day before the killing. He gave the name of his friend, but was unable to say where he was. In explanation of Ms former statements he said he was excited and hardly knew what he did say.

On the part^ of the defendant, Dr. Fry testified and gave it as his opinion that from the course the ball took the deceased must have been leaning with his head forward at the time he was shot. He also testified that he knew the reputation of the defendant in the neighborhood in which he resided and that his reputation for peace and quietude was good. Defendant also offered evidence tending to show that the reputation of the deceased for peace and quietude was bad.

In rebuttal, the State offered evidence tending to show that the reputation of the deceased for peace and quietude was good. The State also offered evidence contradicting the defendant’s statement that threats were employed to secure his written confession or statement made soon after the killing, and also testimony tending to impeach the evidence of Susan Wilkerson, the sister of defendant.

The instructions will be noted in the course of the opinion. Various errors are assigned for a reversal of the judgment.

I. It is .insisted that both Judge Latshaw and Judge Porterfield erred in denying the defendant a continuance and overruling his application therefor. No error was committed in overruling this application for continuance. That portion of the application which alleged the custom of delaying trials until la,ter terms, obviously presented no legal reason for further delays. As to the absence of defendant’s witnesses, Tim Jones and S. Burnett, no subpoenas had been issued for either of' them, nor does the application indicate that diligence had been used in searching for these witnesses, nor does it appear that the evidence which they would have given would have been material on the trial. Moreover, we think the application does not measure up to the requirements of the statutes. [R. S. 1899, sec. 2600; State v. Woodward, 182 Mo. l. c. 419, et seq.]

It may he added also in this connection that when the defendant himself was testifying he stated that Tim Holmes was the person who told him of threats against his life, and not Tim Jones, the witness on account of whose absence he desired a continuance. As to the witness E. A. Brown the showing was entirely inadequate, as the application on its face afforded no reasonable ground for believing that this witness could be secured. We find nothing in State v. Farrow, 74 Mo. l. c. 534, that in the least militates against our conclusion.

II. Complaint is made that the court erred in admitting incompetent evidence over defendant’s objection. Under this head the first specification is as to certain questions propounded to Susan Wilkerson, a witness for the defendant and a sister of the defendant. The first question to which objection was made was: ‘‘He usually fed at your table didn’t he?” The record discloses that she made no answer to this question, and hence nothing prejudicial to the defendant ¡was elicited by the query. Moreover, this was a cross-examination of the witness and the only objection to the question was that it was immaterial, which amounted to no objection whatever in law. Another question was: “How do you support your children?” To this defendant objected on the ground that it was immaterial. While the court overruled the objection as insufficient, the witness made no answer thereto, and hence no error was committed in this regard. She was then asked in regard to the movements of the defendant: “Then he went out and got a can of beer that the other man paid for?” To this the objection was that it was immaterial, and she answered, “Yes, sir, he went out and got the can of beer.” While the objection was entirely insufficient, the evidence was clearly competent. On cross-examination, in connection with the testimony which the defendant himself had given in regard to his going out to work that morning, but was unable to do so on account of the weather, his testimony indicated that he intended to be understood that immediately upon his return he had gone to the shop of the deceased, and the evidence on the part of the State tended directly to contradict this, but in no event was it of sufficient importance to demand a reversal of the judgment, and the same may be said in regard to another question as to his loafing around at Mrs. Harris’s and eating at his sister’s and doing nothing, as the only answer obtained to this question was that she did not know anything about it.

The most material question raised as to the competency of evidence was an offer to prove by Susan Wilkerson, his sister, that right shortly or in a very few minutes after the killing of the deceased, the defendant talked to her and said he had killed Mr. Moog in his own defense and he was in the right, and for her to go and employ counsel; that this took place from within. two to five minutes after the killing, which evidence was excluded by the court and the defendant saved his exceptions. It is now contended that this statement of his was a part of the res gestae. Perhaps nowhere has the doctrine of what constitutes the res gestae been better stated than by Mr. Wharton in his work on Evidence, vol. 1, section 259, in which he says: “The res gestae may, therefore, be defined as those circumstances which are the undesigned incident of a particular litigated act, and which are admissible when illustrative of such act. These incidents may be separated from the act by a lapse of time more or less appreciable. They may consist of speeches of any one concerned, whether participant or bystander; they may comprise things left undone as well as things done. Their sole distinguishing feature is that they should be the necessary incidents of the litigated act; necessary in this sense, that they are part of the immediate preparations for or emanations of such act, and are not produced by the calculated policy of the actors. In other words, they must- stand in immediate causal relation to the act — a relation not broken by the interposition of voluntary individual wariness seeking to manufacture evidence for itself. Incidents that are thus immediately and unconsciously associated with an act, whether such incidents are doings or declarations, become in this way evidence of the character of the act. They are admissible, though hearsay, because in such cases, from the nature of things, it is the act that creates the hearsay, not the hearsay the act.”

Tested by this rule, we think that the learned criminal court correctly excluded this testimony. On its face it was clearly nothing but a narrative of a past event not contemporaneous with the main facts, nor so connected with it as to illustrate its character. In other words it is what has often been denominated by this court “a self-serving statement.” [1 Greenleaf’s Evidence, sec. 108; 1 Wharton on Evidence, sec. 261; State v. Walker, 78 Mo. 388.]

The defendant had left the scene of the homicide and gone to his sister’s house and had had ample time to concoct a story to account for his part in the homicide. We think there can be no doubt that it was not a part of the res gestae, and was properly excluded.

III. The defendant urges the refusal of two instructions offered by him on manslaughter in the third and fourth degree.

Instruction number five requested by the defendant was in these words: ‘£ The court instructs the jury on behalf of the defendant that if deceased advanced from behind the meat counter in evidence in a threatening manner and made an assault on the defendant and defendant, by reason thereof, was thrown into hot blood, and while in sneh hot blood intentionally shot and killed defendant [deceased] — then, unless you find from all the evidence in the case beyond a reasonable doubt that the above mentioned things set out in this instruction are not true — you can in no instance find defendant guilty of more than fourth degree manslaughter, on the theory that defendant had not fully made out his case of self-defense.”

The sixth instruction requested by the defendant and refused by the court was in these words: “If deceased advanced from behind the counter on defendant voluntarily and made an assault on him, the defendant, and by reason thereof the defendant was thrown into hot blood, and while yet in said hot blood he shot deceased, not intending to kill defendant [deceased] but to keep him off as testified by defendant, then unless you find from all the circumstances and facts proven in evidence beyond a reasonable doubt that the things set out in the aforesaid instruction are not true then you cannot in any instance find defendant guilty of more than third degree manslaughter.”

Neither of these instructions was in proper form, but under the rulings of this court if the evidence justified instructions on manslaughter in the third or fourth degree, they might be taken as requests .for proper instructions on manslaughter; so that the real question is, did the evidence require any instructions on manslaughter? It has been repeatedly decided by this court that there can be no such a thing as manslaughter in the third degree, under our statute, when the killing is intentional; and the defendant’s own testimony, if it establishes anything, shows that he intentionally shot and killed the deceased. [State v. Pettit, 119 Mo. l. c. 416; State v. Barutio, 148 Mo. 249; State v. Goldsby, 215 Mo. 55.] The facts of this case abundantly distinguish it from those in State v. Elliott, 98 Mo. 150.

As to manslaughter in the fourth degree the testimony is wholly wanting to establish any provocation which would make the offense manslaughter in the fourth degree. [State v. Gartrell, 171 Mo. l. c. 520, and cases there cited.] Under the defendant’s own statement he was guilty of murder in the first or second degree or was entitled to be acquitted on the ground of self-defense.

TV. Much stress is laid by counsel of the defendant upon the remarks of the prosecuting attorney as constituting error. Many of these statements were objected to at the time and exceptions saved, and we have read the alleged remarks, and as in other cases where the whole address of the prosecuting attorney is not preserved, it is possible that we do not see the bearing and the weight of some of his statements. Thus counsel has preserved the remark of the prosecuting attorney ‘ ‘ That Hughes was an honest man and did not go to his sister’s to eat breakfast like defendant did.” Certainly this statement does not appear to be exceedingly harmful. It was rather complimentary to Hughes and1 may have been somewhat derogatory to the defendant, and was probably stated by the prosecuting attorney to meet the contention that defendant was a very industrious negro. It was not perhaps a very weighty argument, but it is plainly apparent that it did not constitute reversible error. There is absolutely no ground for complaint in the statement of the assistant prosecuting attorney that the defendant denied killing Moog. Counsel for the State was fully justified in making this argument from the fact that the defendant had made a statement which to all intents and purposes amounted to a denial of any knowledge whatever of how Mr. Moog came to his death. It was a legitimate argument upon the facts developed in the case.

As to the complaint that the court directed the jury that the question of the right of the defendant to a continuance was one for the court, certainly on the face of the record this was an undeniable proposition. Moreover, there is nothing in the record to show that the reference of counsel for the defendant to this application for continuance was not such as to justify the ruling of the court. What that reference was' is not disclosed and of course we cannot determine whether it was proper or improper, but we deem it unnecessary to repeat all these exceptions to the remarks of the counsel for the State. We have read them and with this continual interruption it appears to us that the counsel for the State must have had a difficult task in endeavoring to present the State’s side of the case to the jury. We have been unable to find anything in the statements of the prosecuting attorney to justify the charge of oppression in his office or a misstatement of the facts in evidence.

~We have read the evidence in the case, and we think it justified the jury in believing that the defendant was actuated by jealousy of the deceased in killing him. Certain it is that he went into the shop of the deceased armed with a deadly weapon, a revolver, and found him alone and shot and killed him; that he then fled from the scene of the crime, and when first questioned about his knowledge of it, endeavored to account for his own whereabouts in such a manner as to mislead the officers and cause them to believe that he had no part in the killing. His conduct in fleeing from the butcher shop where he had shot and killed the deceased and his contradictory statements in regard to his having a revolver and his disposition of it; his silence when the negro women, immediately after the homicide, were discussing the death of Mr. Moog; and many other facts and circumstances in the case, all tend to prove that at that time he thought that his guilty participation in the crime was entirely unknown, and when afterwards it was discovered that he had been seen to emerge from the butcher shop immediately after the report of his pistol had been heard and that there was no one else in. the immediate vicinity but himself at the time of the homicide he sought to exculpate himself on a plea of self-defense.

■ He had the full benefit of his own testimony on that plea in which he admitted the shooting and killing of the deceased and the jury found that issue against him and there is nothing to indicate that the jury were actuated by passion or prejudice, hut were fully justified in rejecting his claim of self-defense on account of the unreasonable story which he detailed.

In our opinion there was sufficient evidence to justify the verdict at which the jury arrived. We see no error whatever in the instructions of the court and accordingly the judgment of the criminal court is affirmed.

All concur.


source: Caselaw Access Project

author: FOX, J.

license: Public Domain

text:
    THE STATE v. THOMAS O’BRIEN, Appellant.
    Division Two,
    May 26, 1910.
    1. VARIANCE: Registration:. Allegation, John Murphy: Proof, John Murpy. An allegation that defendant registered as a voter under the name of “John Murphy” and proof that he registered the name “John Murpy,” do not constitute a variance, where the proof is that both before he registered and after his arrest defendant stated his name was John Murphy. His writing of “John Murpy” in the books was simply a misspelling of the name he assumed for a fraudulent purpose.
    2. -: Matter for Trial Court. Under Sec. 2534, R. S. 1899, it is for the trial court to determine whether “any variance between the statement in the indictment and the evidence offered in proof thereof, in the Christian name or surname of the defendant,” is material.
    Appeal from St. Louis City Circuit Court. — Ho». Geo. H. Shields, Judge.
    Arbiemru.

      C. Orrick Bishop for appellant.
    (1) The indictment in this case charges that the appellant “then and there unlawfully, feloniously, willfully, knowingly, falsely and fraudulently did sign said registers, poll hooks and hooks of registration of said election precinct, in the margin on said books provided for the signatures of registered electors and voters, under the said name John Murphy, by writing on said books the words and name “John Murphy.” It appeared from the evidence that there were four books of registration kept by the registration officers for each precinct, on each of which the applicant for registration was required to write and sign his name, to-wit, (1) an original registry book; (2) a copy of the original registry book; (3 and 4) two primary books, copies or counterparts of each other. These four books, alleged to have been used at the general registration on September 14, 1908, were admitted in evidence, as having been signed at the alleged time and place by appellant and were identified by the officers of registration as the books, and the only books, used by them at the time and place charged in the indictment; and in each of the books the purported signature is “John Murpy,” and nowhere were the “words and name John Murphy,” written by this appellant. This was a fatal variance between the allegation and proof, and the demurrer to the evidence should have been sustained, and appellant’s request for a peremptory instruction to acquit should have been given. State v. Judd, 221 Mo. 554. (2) And the court further erred in submitting to the jury the question whether “said defendant then and there willfully, knowingly, fraudulently and falsely signed the said official registers and books of registration by writing thereon his name as John Murphy,” when there was no evidence whatever that appellant had signed the name John Murphy upon any book.

      Elliott W. Major, Attorney-General, and Chas. G. Bevelle, Assistant Attorney-General, for the State.
    (1) An examination of the record and the contentions made by appellant in the trial court discloses that substantially all the questions presented are settled by the recent decisions of this court in the cases of State v. Cummings, 206 Mo. 624; State v. Tiernan, 223 Mo. 142; State v. Keating, 223 Mb. 86 ; State v. Exnicious, 223 Mo: 61, and State v. Thavanot, 225 Mo. 545. (2) The indictment charges that defendant represented that his name was John Murphy, and that he registered under and signed that name. The registration records offered in this connection disclose that as questions were ashed him by the judges and his answers were given, the clerk entered such answers, and in entering the name stated by him, the clerk wrote it “John Murphy,” and he was registered by the judges under that name. When he signed the register, he wrote it “John Murpy.” In our opinion, this constitutes no fatal variance, and is clearly distinguishable from the question involved in the recent case of State v. Judd, 221 Mo.554. The later case of State v.Exnicious seems more in point. R. S. 1899, sec. 2534. To the trial court alone belonged the duty of determining whether the variance was material, and the action of that court in overruling the demurrer and giving the instructions it did give, is equivalent to an affirmative finding that the variance was immaterial and not prejudicial, and to such finding this court will defer. State v. Decker, 217 Mo. 321; State v. Barker, 64 Mo. 285; State v. Smith, 80 Mo. 520; State v. Harl, 137 Mo. 256; State v. Sharp, 106 Mo. 109; State v. Walters, 144 Mo. 347; State v. Wammack, 70 Mo. 411; State v. Sharp, 71 Mo. 221; State v. Ward, 70 Mo. 255; State v. Nelson, 101 Mo. 482: State v. Dale, 141 Mo. 287.
   FOX, J.

The defendant was indicted at the June term, 1908, of the eircnit court of the city of St. Lonis, for the offense of falsely and fraudulently registering on the election registration books of the third precinct of the Sixteenth ward of the city of St. Louis under a name not his own, tcwwit, under the name of John Murphy, his true name being Thomas O’Brien. At the December term, 1908, of said court the defendant was tried and convicted of said offense, his punishment being assessed at imprisonment in the penitentiary for a term of three years and six months.

After motions for new trial and in arrest of judgment were filed and overruled, judgment was entered in accordance with the verdict, from which judgment defendant appeals to this court.

The testimony shows that, pursuant to the election laws governing the city of St. Louis, there was a general registration of the voters and electors of said city on the 14th, 15th, 16th and 17th days of September, 1908, said registration being conducted under the supervision of the election commissioners, and by judges and clerks duly appointed, sworn and qualified.

In accordance with- statutory provisions, every person applying for registration was required to state, under oath, his place of residence, name, date of birth, age, occupation, duration of residence in the precinct, city and State, and certain other matters touching his qualifications and right to register as a voter. The answers of the applicant for registration were recorded in records prepared and kept for that purpose. If the answers were satisfactory to the judges, the applicant was declared a qualified voter, and the word ‘ ‘ yes ’ ’ entered opposite the name of the applicant, in a column headed by the words “qualified voter,” and the applicant was then permitted to sign, at the proper place on the records, his name as a qualified voter.

On the 14th day of September, 1908, the defendant appeared before the judges and clerks of registration of the third election precinct of the Sixteenth ward, and requested permission to register. After being duly sworn, and in answer to the prescribed questions, he stated that his name was John Murphy, and that he resided at 1119 Cass avenue, within said ward and precinct. These answers, with others, were written by the clerk in the registration records, the name given by the defendant, “John Murphy,” being so entered by the clerk. The defendant then, at the proper places in said registration books, signed his name as “John Murpy,” immediately after doing which, and as he was leaving the room, he was arrested by a police officer, who was present when he registered and who knew his true name to be Thomas O’Brien. He was taken to the police station where he gave his name as John .Murphy. While being taken to the police station, he repeatedly requested the police officer to permit him to escape, saying, among other things, that members of his family had for many years been friends and acquaintances of the officer, and that no one would know of the occurrence if the officer would release him.

The State proved by several witnesses who were acquaintances of the defendant that the defendant’s name was Thomas 0 ’Brien. Defendant offered no testimony on his own behalf, but at the close of the evidence for the State asked the court for an instruction in the nature of a demurrer to the evidence, which was refused, to which action of the court defendant excepted, and preserved the point in his motion for a new trial.

OPINION.

The one contention of the defendant in this case is, that there was a fatal variance between the allegations and the proof, and that the court, therefore, erred in overruling the demurrer to the evidence. As supporting his said contention, defendant cites the case of State v. Judd, 221 Mo. 554, but which case, as we shall hereafter show, is distinguishable from the case at bar.

The indictment charges that the defendant represented to the judges and clerks of registration that his name was John Murphy, and then alleges that he, “then and there, unlawfully, feloniously, willfully, knowingly, falsely and fraudulently, did sign said registers, poll books and books of registration of said election precinct, in the margin on said books provided for the signatures of registered electors and voters, under the said name John Murphy, by writing on said books the words and name ‘John Murphy.’ ”

The proof is strong and incontestable that the defendant did represent to the judges and clerks of registration that his name was John Murphy, and it was so entered by the clerks on the books of registration. It was shown however that when the defendant signed his name in said books, he each time wrote it “John Murpy. ’ ’ This was nothing more nor less than a misspelling of the name which he assumed for a fraudulent purpose, and despite the misspelling, which was doubtless due to illiteracy, there can be no doubt that the name as signed by the defendant was intended for ‘ ‘ John Murphy. ’ ’ To the judges and clerks of registration he gave his name as “Murphy,” and when questioned at the police station as to his name, he gave it as “Murphy.”

In the Judd case, supra, to which defendant’s counsel refers, the trouble was that the information contained repugnant and inconsistent charges. The information in that case charged that the defendant, Leo Judd, did then and there register under the name of Chas. Cohn, and unlawfully and feloniously pretended to the election officers that his name was Chas. Cohn, and that he was entitled to register under the name of Chas. Cohn, and that he requested the judges, etc., to enter, write and register the name of him, the said Leo Judd, on said registration books as Chas. Cohn, and that the said judges and clerks, then and there, did enter and write upon the registers and books of registration'the said name of Chas. Cohn as and for the name of him, the said Leo Judd, as a resident and qualified voter and- elector of said election precinct. Then followed the charge that the defendant, Leo Judd, feloniously did sign such registers and books of registration under the same name, Chas. Cohn, by writing on said books the words and name Chas. Cohen. Thus the information charged a registration under one name and a signature of another and different name, and the court held that the allegations were repugnant in material matters, and that the defendant’s demurrer to the information should have been sustained. '

The indictment in this case was not assailed in the lower court, it being identical in its charging parts with the indictments approved in State v. Cummings, 206 Mo. 624; State v. Exnicious, 223 Mo. 61; State v. Tiernan, 223 Mo. 142. The Exnicious case is. directly in point here. In that case the court said: “The indictment charges that he registered under the name ‘Joseph Walters,’ and that his proper name was that of Harry Exnicious, the name under which he was in-dieted. The testimony clearly shows that the original registration book was signed by him as ‘Joseph Walters.’ Upon the copy of the original registration book, the most that can be said of his signature was that he misspelled the name, both ‘Joseph’ and ‘Walters.’ Upon one of the primary books there was simply a mistake in the spelling of the name ‘Joseph.’ In the spelling of that part of his name he omitted the letter ‘h,’ as well as omitted from the surname the letter ‘s,’ making it ‘Walter’ in place of ‘Walters.’ The record discloses further that on line 21, and under the heading ‘Signature,’ he again simply misspelled his Christian name; that is to say, spelled it ‘Joseh’ instead of ‘Joseph.’ His surname, ‘Walters,’ was properly spelled in writing that signature.” The court then says that the Judd case is not in point and adds: “We take it that the simple mistake in the spelling of the name in the one or two instances pointed out does not constitute a fatal variance between the allegations in the indictment and the proof offered in support of it.”

Section 2534, Revised Statutes 1899, provides: “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 [of] any person whomsoever therein named or described . . . 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.”

It has been many times ruled by this court that, under this section of the statute, it is for the trial court to determine whether the variance if any between the pleading and the proof is material. [State v. Decker, 217 Mo. 315; State v. Harl, 137 Mo. l. c. 256; State v. Sharp, 106 Mo. 106; State v. Wammack, 70 Mo. 411; State v. Smith, 80 Mo. l. c. 520; State v. Waters, 144 Mo. l. c. 347; State v. Sharp, 71 Mo. l. c. 221.]

In the Wammack case, supra, the court said: “So the objection to the evidence that it showed an assault on one Eyre Pile, and not on M. E. Pile, as charged in the indictment, was not well taken, since the trial court has not found that the variance is material to the merits of the ease and prejudicial to the defense of the defendant. It is obvious the statute constitutes the trial court the judge of the materiality of any discrepancies between the charge in the indictment and the evidence offered in its support, and that, under the statute, the defendant will not be entitled to an acquittal unless the court finds the variance between accusation and proof so great as to call for judicial interposition.”

In State v. Smith, supra, it was said: “Nor is there anything in the point that the indictment charges that the assault was made on Olive EEodson, and the evidence shows that it was Mrs. Hodson. The court before which the trial was had did not find that the variance was material to the merits of the case, or prejudicial to the defense, or else, doubtless, it would have directed an acquittal. The statute governs this.”

In the Decker case, supra, the court said: “In State v. Sharp, 106 Mo. l. c. 109, the variance between the charge in the indictment that the oats were taken from a car on the track of the Wabash railroad, and the proof that it was taken from a car on the track of the Wabash Western Railroad, was held not to be such a variance as operated prejudicially to the defendant; and in State v. Barker, 64 Mo. l. c. 285, the indictment charged the goods stolen were the property of R. C. Stevens, and the proof was that they were the property of Clifford J. Stevens, and it was held that while the name of the owner of the property stolen must, if known, be accurately stated and that this variance would have been fatal at common law, yet, under the above-quoted section, it was cured unless the court trying the case should find that it was material to the merits of the case, and as the court did not so find, it was no cause for reversal.

The overruling of the defendant’s demurrer to the evidence, and the submission to the jury of the question whether “said defendant then and there willfully, knowingly, fraudulently and falsely signed the said official registers and books of registration by writing thereon his name as John Murphy,” was in effect a finding by the court that the variance referred to was not material to the merits of the ease, or prejudicial to the defense of the defendant.

Failing to find any reversible error in the case, we affirm the judgment.

All concur.


author: GANTT, P. J.

text:
    THE STATE v. THOMAS McGRATH, Appellant.
    Division Two,
    May 26, 1910.
    1. INDICTMENT: Statutory Offense: Use of Word Feloniously. Where the offense is statutory and is made a felony, it is necessary to use the word “feloniously” in charging it.
    2. -: -: -: False Election Returns. An indict-.ment which simply charges that certain ballots “were wrongfully and falsely returned” to the Election Commissioners, does not sufficiently charge a felonious return. And that defect is not cured by a charge that the defendant election judge “illegally, fraudulently and feloniously did change and attempt to change the true and lawful result of said general primary, by making a wrong count and false return of the ballots then and there legally and lawfully cast.” The indictment does not charge a felonious return, but simply a false count and return. To charge the crime of making a false and fraudulent return it must be charged to have been feloniously made.
    3. EVIDENCE: Overthrowing Poll Book: Uncertainty of-Witness. In the trial of an election judge, charged with the felony of making a false return, where the ballot is not in evidence, testimony of a witness that he thought he voted for a certain candidate, but was not positive whether he did or not, was not sure that he did, and did not know because there were so many names on the ticket that he oould hardly remember how he voted, should be stricken out, as wholly insufficient to overthrow the presumption in favor of a right count on the part of the election officer.
    4. -: Charge that Ballot was Counted for Particular Candidate. The charge that a certain voter cast his ballot for a particular Democratic candidate and that it was counted for another particular Democratic candidate for the same office, is not sustained by proof that the vote was cast for the particular candidate named, and the other candidate was credited in the returns with the same number of ballots that were certified to Democratic candidates for other offices who had no opposition — there being at the same primary a Republican candidate for the nomination for the same office. To so conclude is to enter the field of speculation and conjecture, and to ignore the rule as to reasonable doubt.

      5. -: -: Unnecessary Allegation. It was unnecessary to allege that the ballot cast for one candidate was counted for another named candidate for the same office; but having been charged, it was necessary to prove it. That charge, while unnecessary, yet being alleged, must be proven. And it is ■ not proven by a showing that no votes were counted for the. candidate for whom the vote was cast.
    6. REMARKS OF COUNSEL: Bringing Ballots Into Court: No Rebuke. The circuit attorney, in his final argument to the jury, in a case where defendant, a judge of election, was charged with having made a false and fraudulent return, and was convicted and his punishment fixed at four years’ imprisonment, said: “If they have any doubts about what was. in the ballots, let them open them up, let them bring them into court and place them in the hands of this jury and let it be conclusively determined.” Defendant’s counsel objected, and asked the court to rebuke the attorney. The court said: “You know that nobody can bring those ballots here under the present condition of affairs, and you ought not to hold defendant responsible for what he cannot do. Proceed with the argument of the case under the instructions and evidence before the court.” Thereupon the circuit attorney said: “It has been stated here that in this case an application for a writ of prohibition was filed.” To that defendant’s counsel replied: “This defendant had no more to do with it, and • Mr. Sager knows it, than your Honor.” The court said: “I have instructed Mr. Sager to proceed with the argument on the evidence and instructions and not outside matters.” The defendant had nothing to do with the application for a writ of prohibition, and under the law the ballots could not be brought into court. Eelti,, that the conduct of the circuit attorney called for stern rebuke, and the jury should have been warned to disregard his statements. Besides it was an indirect method of calling the jury’s attention to defendant’s failure to testify, and requiring him to prove his innocence.
    Appeal from St. Louis City Circuit Court. — Ron. George R. Shields, Judge.
    Reversed and remanded.

      C. Orriclc Bishop for appellant.
    (1) The trial court erred in permitting certain witnesses to testify as to how they voted, or for what candidates, at the primary; not from positive knowledge, nor upon positive assertion, bnt from indistinct recollection, pure guesswork, and in some instances where the witnesses admitted that they were not sure. The indictment affirmed positively that certain ballots were fradulently counted for certain candidates, when in fact they were cast for other persons; and this was a case for positive affirmative proof of the allegations. The poll book showing the returns of an election, made by the officers, is presumed to be correct and true, imports verity; and this presumption cannot be overthrown by other than positive and affirmative evidence. (2) There is no evidence in the record that any ballot alleged to have been cast for. any one candidate was counted for any other, as charged in the indictment. For instance: it was affirmatively and positively averred in the indictment that the defendants did the act charged “by then and there illegally, willfully, fraudulently and feloniously, wrongfully counting and falsely returning the same in the following manner, to-wit, by then and there counting and returning the ballot of William J. Robinson . . . for and in favor of William S. Cowherd, candidate for Governor of Missouri on the Democratic ticket . . . when in truth and in fact said ballot of the said William J. Robinson was duly and legally cast for and in favor of William H. Wallace, candidate,” etc. This allegation, being specific, was material and required strict proof to support it. Assuming that said Robinson testified that on the occasion of the primary he cast a ballot for William H. Wallace, and that on neither of the poll sheets or returns it appeared that any ballot was east or counted for William H. Wallace, but that a certain number were cast and counted for William S. Cowherd, and a certain number for Herbert S. Hadley, candidates for Governor at such primary, hoiw could it be said that the ballot alleged to be cast by said Robinson was counted for William S. Cowherd and not for Herbert S. Hadley? And so there was no evidence in this case that this particular ballot, nor any other mentioned in the indictment, was actually counted for the person alleged. Had the indictment simply charged that the particular ballot sworn to have been cast for Wallace was not counted nor returned for Wallace, there might have been some evidence to support that allegation. (3) The closing remarks of the circuit attorney were grossly prejudicial to the appellant. There was no evidence before the jury — it had only been stated in argument of counsel before the court, upon an objection — that an order of prohibition had been temporarily granted by this court against the production and opening in court of the ballot boxes of this primary and precinct; yet this appellant was thus openly charged with the duty of producing the ballots in court and exhibiting them to the jury, and officially accused (though he does not appear to have had anything to do with it) of having blocked the wheels of justice and of having suppressed evidence which might aid the prosecution. It is seldom, if ever, that so gross a perversion of legitimate argument occurs; it was not only an unwarranted attack upon-appellant, but a challenge to him to produce in his own behalf evidence which the Constitution inhibits, or submit to a conviction. The remarks merited a stern and solemn rebuke from the court, as asked for by appellant, but they met iwith only a mild protest, if, indeed, it can be called a protest, and the jury were not even told to disregard it. (4) While the indictment charges that “the defendants illegally, willfully, fraudulently and feloniously did change and attempt to change the true and lawful result of said general primary ... by making a wrong court and false return of the ballots . . . by then and there illegally, willfully, fraudulently and feloniously, wrongfully counting and falsely returning the same,” etc., it concludes “that all of the said ballots so cast as aforesaid were (not willfully and feloniouslv, but) wrongfully and falsely counted and (not willfully and feloniously but) wrongfully and falsely returned by the said (defendants) ... as not having been cast for the candidates for whom they were voted, ’ ’ etc. To that extent the indictment is bad; if the conclusion is a material and necessary part of an indictment, especially where it is made so by its specific allegations, then it is as necessary that it follow the language of the statute, and comply with the established forms and precedents, as any other part of the indictment.

      Elliott W. Major, Attorney-General, and Chas. G. Bevelle, Assistant Attorney-General, for the State.
    (1) (a) The general primary election held August 4, 1908, was held and conducted under the regulation and protection of the election laws of the State, and was an election within the meaning of the criminal laws directed against making a false return of the ballots cast at an election. State ex rel. v. Taylor, 220 Mo. 618; Commonwealth v. Boyle, 3 Pa. Dist. 591. (b) The indictment includes within its allegations an offense under secs. 2116 and 2117, R. S. 1899, also 2120, Laws 1903, p. 159, and meets the requirements of criminal pleading. State v. Krueger, 134 Mo. 262; People v. Sullivan, 7 N. Y. Crim. 420'; State v. Cummings, 206 Mo. 613. The indictment is not subject to the criticism that it does not charge that the act complained of was feloniously done. The gravamen of the offense consists in making a wrong count and false return of ballots lawfully cast at an election. The various acts constituting this offense are specifically charged to have been done willfully and feloniously. That portion of the indictment which omits the word feloniously is not essential to the charging parts and is but surplus-age. The offense is fully charged without it, and its presence in no manner detracts from the sufficiency or certainty of the charging parts, and is therefore sufficient. State v. Taylor, 117 Mo. 181; State v. Rolley, 135 Mo. 677; State v. Walker, 167 Mo. 366; State v. Spaugh, 199 Mo. 147. (2) While the indictment charges that thirty-two ballots therein designated were cast for candidates named, and counted for and returned in favor of certain other candidates, it is clear that it was not essential to the State’s case to prove that each and all of the ballots named in the indictment were cast, counted and returned in the manner charged, it being sufficient that the evidence disclose that any one or more of such ballots were fraudulently counted and falsely returned. In this connection William Stogsdill, Baldwin Tressels, A. G-. L. Lauman, John Moore, James U. Robinson, Louis Stephan, John S. Stogsdill, James Walsh, James H. Murphy, J. Coleman, John Conroy, Frank Schaettler, all being duly registered as qualified voters and entitled to vote in that precinct, testified positively that they voted for Stapel for G-overnor, and yet the returns made and filed by the defendant and the other judges, disclose that not a single ballot was counted or returned in favor of Mr. Stapel. All these parties voted in the precinct for which defendant was a judge, and their ballots were not rejected as being invalid, but were counted for and credited to another candidate as is manifest from the poll books and returns which disclose that but 252 persons appeared at that precinct and cast their ballots, including in that number these particular witnesses, and that 252 ballots were counted and credited in that precinct to candidates for Governor. Mr. Cowherd received 199, or every Democratic vote, while Mr. Hadley received 53, or every Republican vote. Four witnesses, whose ballots were counted for some candidate for Governor, testified positively that they voted for Ball, while one testifies positively that he voted for Wallace, yet neither of these candidates was credited with a single vote. Eight witnesses, who voted, are positive in their statements that they cast their ballots in favor of Mr. Reller for Congress. Four are positive that they cast their ballots for Mr. Me-Skimming for Congress, one for Mr. Hunt and one for Mr. Hines for Congress, yet none of these ballots were counted for such candidates, they being credited with no votes, while Mr. Gill was given 199, the same number that was counted and returned for Democratic candidates who had no opposition. As heretofore stated',, the gravamen of the offense charged consists in making a false count and a wrong return, and the evidence abundantly supports that charge. Appellant contends that there is no evidence tending to prove that such, ballots were actually counted and returned for the particular candidate named in the indictment. For illustration, he says, assuming that William J. Robinson testified that on the occasion of the primary he cast a ballot for William H. Wallace, and that neither on the poll books nor return it appeared that any ballot was cast or counted for William H. Wallace, but that a certain number were cast and counted for William S» Cowherd, and a certain number for Herbert S. Hadley,, candidates for Governor at said primary, how can it be said that a ballot alleged to be cast by said Robinson was counted for William S. Cowherd and not for Herbert S. Hadley. The record is a sufficient reply to> this suggestion. It discloses that 53 ballots were counted and returned for Hadley for Governor and that 53 ballots were counted and returned for the Republican candidates for each office to be filled. In other words, there were 53 Republican ballots counted and returned, on each office and for Republicans all along the line, and Mr. Hadley and the other Republican candidates were-*credited with exactly 53 votes. The witness Robinson,, and certain other witnesses, did not vote the Republican ticket, nor for Republican- candid; tes, but cast. Democratic ballots in favor of Democratic candidates» Mr. Cowherd was credited with identically the same-number of ballots that were credited to Democratic ■candidates who had no opposition, showing that every Democratic ballot cast was counted and returned in 'his favor, including; the Democratic ballots of Robinson and other witnesses, who cast their ballots in favor ■of Mr. Ball and Mr. Stapel. These facts are amply sufficient to support the verdict and this court will not interfere where there is substantial evidence. State v. Matthews, 202 Mo. 147; State v. McCullouch, 17.1 Mo. 574; State v. Tetriek, 199 Mo. 100; State v. Williams, 199 Mo. 137. (3) The secrecy of the ballot is intended to protect the voter, and where the voter waives that protection, there can be no objection to permitting him to testify for the purpose of convicting a false •and corrupt officer. Reed v. Kneass, Bright’s Elec. ■Cas. 366; Palmer v. Howe, L. & R. 145; People v. 'Tbacher, 55 N. Y. 535; Boyer v. Teague, 106 N. C. 625; State ex rel. v. Kraft, 18 Ore. 556; Dickson v. Orr, 49 Ark. 242; Paine on Elections, par. 766, p. 640; McCrary on Elections (4 Ed.), pars. 491, 492, pp. 362-3.
   GANTT, P. J.

The defendant was indicted, with others, at the June term, 1908, of the circuit court of the city of St. Louis, with having, as one of the judges of the election, at the “general primary” held in the city of St. Louis on August 4, 1908, made a false and fraudulent return. A demurrrer to the indictment was overruled and defendant was arraigned and pleaded not guilty. At the October term he was tried and convicted and his punishment assessed at four years'in the penitentiary. His motions for new trial and in arrest were beard and overruled, and from the sentence imposed he has appealed to this court.

The offense for which the State sought a conviction is defined in sections 2116, 2117, Revised Statutes 1899, in these words: “If any judge or clerk of any •election authorized by law . . . shall in any manner illegally, willfully and fraudulently change or attempt to change, or induce any other person to change, the true and lawful result of any election, by any act to be done either before, at the time of or after such election, by a wrong count of the ballots, by changing the true returns or making a false return thereof, or by changing the figures of the returns after they are made up, either before or after the returns are duly made, or in any other manner except in pursuance of law or the order of the court . . . shall, upon conviction, be punished by imprisonment in the penitentiary not exceeding five years, or by a fine,” etc. .

The indictment, after stating there was a general primary held in St. Louis on the 4th day of August, 1908, for the choice of candidates for all political parties within the State of Missouri for state and county offices and that defendant McGrath and William Gamache were selected, appointed and qualified according to law to serve as judges for said primary for the second election precinct of the third ward, and certain others as clerks, all appeared at the polling place on said date and conducted said primary in said precinct and that defendant and said other judges and clerks on said day illegally, fraudulently and feloniously did change and attempt to change the true and lawful result of said general primary, by making a wrong count and false return of the ballots then and there legally and lawfully cast at said general primary and while the same was in progress, for the various candidates for Governor except Mr. Cowherd and for various other candidates for state and city offices for both Democratic and Republican candidates, by then and there illegally, fraudulently, willfully and wrongfully refusing and failing to count said ballots, as aforesaid legally and lawfully cast for said candidates, and by then and there illegally, willfully, fraudulently, feloniously and wrongfully counting and falsely returning the same in the following manner, to-wit, by then and there counting and returning the ballots of (here follow the names of some thirty-two different electors, with the number of their residence, with the allegation that they were counted as voting for one candidate for a specified office whereas they voted for other and different candidates), and then concludes: “and that all of said ballots so cast as aforesaid were wrongfully and falsely counted and wrongfully and falsely returned by the said Thomas McGrath, William Gamache, John Sullivan and Walter F. Guilford to the Board of Election Commissioners of the city of St. Louis as not having been cast for the candidates for whom they were voted as aforesaid., against the peace and dignity of the State.”

I. It is the settled law in this State “that in all indictments for felonies the criminal act must be alleged to have been feloniously done.” [State v. Murdock, 9 Mo. 730; State v. Gilbert, 24 Mo. 380; State v. Clayton, 100 Mo. l. c. 519.]

This offense is statutory, and the question arises, is it necessary to use the word feloniously in charging it? Bishop in his New Criminal Procedure, vol. 1, sec. 535, says: “In statutory felony, opinions are not quite uniform as to whether the indictment must have the word ‘feloniously,’ if not in the statute. Reason just as much requires it in the statutory as in the common law indictment. And in the absence of legislative command, the English courts compel it (Reg. v. Gray, 9 Cox C. C. 417, 419; Leigh & C. 365), and so do those of apparently the greater number of our States,” citing State v. Murdock, 9 Mo. 730; State v. Davis, 29 Mo. 391; State v. Williams, 30 Mo. 364; State v. Deffenbacher, 51 Mo. 26; State v. Weldon, 70 Mo. 572. Each of these decisions by this court sustains the learned author’s statement of the law and settles the law in this jurisdiction.

The indictment is challenged as insufficient in that it does not charge that the defendant and his associate judge and clerks feloniously and fraudulently, and willfully returned the said ballots as not having been cast for the candidates for whom they were voted, but merely charges they were wrongfully and falsely returned to the Board of Election Commissioners of the city of St. Louis as not having been cast for the candidates for whom they were voted. The offense denounced by the statute is liable to be punished by imprisonment in the penitentiary and thus by force of our statute is a felony. [Sec. 2393, R. S. 1899.]

It remains then to determine whether this indictment measures up to this requirement.

In State v. Krueger, 134 Mo. 262, an indictment for this offense was considered by this court and it was held that an indictment, which did not particularize the ballots alleged to have been fraudulently voted (in this case falsely counted and returned), was insufficient. In this case the pleader evidently sought to avoid that defect by naming the electors whose ballots were wrongfully and falsely counted and does in the general charging clause allege that defendant and his associate judge and clerks unlawfully, intentionally, wrongfully and fraudulently and feloniously did change and attempt to change the true and lawful result of said general primary and in said precinct by making a wrong count and false return of the ballots cast for certain named candidates, and by then and there unlawfully, intentionally, wrongfully, feloniously and fraudulently counting and fraudulently, feloniously, intentionally and unlawfully returning said ballots in the following manner by then and there counting and returning the ballots (here naming the certain electors and the candidates for whom their ballots were wrongfully counted and the candidates for whom they were really cast). After specifying these ballots, the indictment then alleges: “that all of the said ballots were wrongfully and falsely counted and wrongfully and falsely returned by the said Thomas McGrath, William Gamache, John Sullivan and Walter F. Guilford to the Board of Election Commissioners of the city of St. Louis as not having been cast for the candidates for whom they were voted as aforesaid.” The gravamen of this charge is the making of a false count and return. It is obvious from the authorities above noted that in order to charge the crime of making a false and fraudulent return it must be charged to have been feloniously, made. [State v. Brown, 8 Nev. 208; 22 Cyc. 333.]

Learned counsel for the State say this last clause in the indictment can be ignored and treated as surplusage and if omitted there is still a valid charge. But what is meant by “making a false return thereof.” Nowhere else in the indictment is there any attempt made to charge a “return” within the meaning of the law. What constitutes the returns in an election in St. Louis is provided ih section 7324, Revised Statutes 1899. They consist, in short, of the certificates of the judges and clerks to the statements required by the statutes, together with the lists of voters and tally sheets, duly enclosed and sealed, in the ballot box which is sealed and the key removed, and these papers and the ballot box are required to be delivered to the Election Commissioners. The pleader having nowhere else in the indictment pleaded the facts showing a return of the election to the election commissioners and having failed to charge that the ballots alleged to have been wrongfully counted and falsely returned were feloniously, illegally, willfully and fraudulently so counted, and the result of the election was so certified by defendant and his associate judge and clerks in their certificates and returned or delivered to the Election Commissioners, we think it falls short of averring facts essential to the charging of a fraudulent and illegal' return. It seems quite obvious that the certificates made to the Election Commissioners, if any, must form an essential part of the State’s ease. As the crime charged is that said return is a fraudulent one and is punishable as a felony, it must be alleged to have been feloniously made, certified and returned or delivered to the Board of Commissioners with the intent to change the result of the said election. In our opinion the indictment is insufficient in this essential particular. [State v. Keating, 202 Mo. 204, 205; U. S. v. McCabe, 58 Fed. 557.]

II. Defendant complains of thé refusal of the court to strike out the testimony of certain witnesses; for instance, in the case of the witness Charles Reichenbach, who was alleged to have cast his vote for Hugh I. McSkimming for Congress and Joseph F. Dickmann for Sheriff, but whose vote was recorded for Patrick F. Grill for Congress and Edward J. Morrissey for Sheriff. He was asked: “You are not very positive for whom you voted for Sheriff? A. No, I am not very positive whether I voted for Dickmann, but I think I did. I am not sure. Q. You are not sure? A. No. Q. Are you sure you voted for McSkimming? A. Well, I think I did. Q. Are you sure you did? A. Well, I think I am, I think I did, I do not know. There were so many names on the ticket you could hardly remember what you voted.”

The defendant insisted that the poll books showing the returns of an election made by the officers under their oath import verity and cannot be overthrown by other than positive and affirmative evidence, and requested the court to strike out this witness’s evidence, but the learned trial court ruled that it was a question for the jury. And, in its instruction to the jury, permitted them to find that this witness did vote for Dickmann and McSkimming, notwithstanding his own uncertainty in the premises, and that his vote was fraudulently counted for the other candidates. Unquestionably there are many cases in which a careful and conscientious witness will not state a fact positively, but will state that to the best of his knowledge and in his opinion it was true, and often this character of evidence is more convincing to a jury, or the trial court, than the bald and unequivocal statement of a fact, especially where the witness states the concomitant facts and his reasons for his belief. But it seems to us that there is much force in the contention of counsel in the peculiar circumstances of this case. Here the ballot which the witness cast was not in evidence and the defendant was on trial for a serious crime, a crime involving a corrupt administration of a public office, and the only witness by which that offense, in the nature of the case, could be established, merely stated that he thought that he voted for a certain man, but was not positive whether he did or not, was not sure that he did, and did not know because there were so many names on the ticket that he could hardly remember how he voted. We think it would be a dangerous precedent to permit the judge of an election to be sent to the penitentiary for four years upon such testimony as this, and in our opinion the circuit judge should have sustained the motion to strike out this testimony as wholly insufficient to overthrow the presumption in favor of right action on the part of the judge of the eleo tion. It must be remembered- that this is a charge of felony and the law requires it to be established beyond a reasonable doubt.

III. It is earnestly insisted that the State utterly failed to establish the charge in the indictment that either or any of the ballots alleged to have been cast for any one candidate was counted for another candidate as charged in the indictment.

Thus it is charged that William J. Robinson voted for William Wallace, but his ballot was fraudulently and feloniously counted for William S. Cowherd. The State to maintain this allegation did show there was no ballot or votes certified and returned as voted for Judge Wallace, but the only evidence that this ballot was counted for Cowherd is an inference which the Attorney-General draws from, the fact that Cowherd was.credited with the same number of ballots that were certified to Democratic candidates who had no opposition, therefore it is argued he must have received credit for Robinson’s ballot. This is a non sequitur. There is absolutely nothing to show that the judges counted this particular ballot for Cowherd and not for Hadley. It may be that Republican votes were counted for Cowherd and Democratic ballots for Hadley. While it may be argued that it is improbable that these 'defendants would have counted Republican ballots for the Democratic nominee or vice versa, it can be answered by the fact that if they were corrupt enough to miscount the ballots they were corrupt enough to fraudulently count any individual ballot for either of the candidates they might desire without regard to partisan bias or affiliation. The proposition after all leads us into a field of speculation, and results not in proof beyond a reasonable doubt, but in a probability, surmise or suspicion, neither of which will satisfy the demand of the law that defendant’s guilt must be established beyond a reasonable doubt. Can the charge that Robinson’s ballot was counted for Cowherd be treated’ as surplus-age? The rule on this point would seem settled. Says Bishop in his New Criminal Procedure, section 485 : “If a necessary allegation is made unnecessarily minute in description, the proof must satisfy the descriptive as well as the main part, since the one is essential to the identity of the other.” This doctrine is illustrated by State v. Samuels, 144 Mo. 68, in which the indictment charged that a certain order was uttered “to one Walter Robinson with intent him, the said Walter Robinson, then and thereby to injure and defraud.” The statute then (and now) in force provided that “it shall be sufficient in any indictment for any offense where an intent to injure, cheat or defraud shall be necessary to constitute the offense, to allege that the defendant did the act with snch intent, without alleging the intent of the defendant to he, to injure, cheat or defraud any particular person,” etc. [R. S. 1889, sec. 3983; R. S. 1899, sec. 2403.] It was held necessary to prove the charge as laid and that the allegation that the altering was done with intent to cheat or defraud Walter Robinson, while unnecessary, yet being alleged, became descriptive and essential to a conviction. [State v. Johnston, 6 Jones Law (N. C.) 485; John v. State, 24 Miss. 569; Com. v. Harley, 7 Met. 506; State v. Copp, 15 N. H. 212; Com. v. Luscomb, 130 Mass. 42; U. S. v. Porter, 3 Day 283.]

It is well to note that the distinction is always made between allegations which are necessary but unnecessarily particular and minute, and allegations neither essential to the charge nor descriptive or limiting that which is essential. [State v. Meyers, 99 Mo. 107; State v. Sakowski, 191 Mo. 635.]

The grand jury having charged not only that Robinson’s vote was cast for Wallace proceeded to charge specifically that it was counted for Cowherd and by so doing made it an essential element of the offense to show it was counted for Cowherd.

IV. Finally counsel for defendant assigns as reversible error misconduct of the circuit attorney in his closing address to the jury in stating to them: “If they [the accused and his counsel] have any doubts about what was in the ballots, let them open them up, let them bring them into court and place them in the hands of this jury and let it be conclusively determined.” To this statement counsel for defendant at the time objected and saved his exceptions and asked that the circuit attorney be rebuked. Thereupon the court remarked to the circuit attorney (Mr. Sager): “You know that nobody can bring those ballots here under the present condition of affairs and you ought not to hold defendant responsible for what he cannot do. Proceed with the argument of the ease under the instructions and evidence before the court.” By Mr. Sager: “It has been stated here that in this case an application for a writ of prohibition was filed.” By Mr. Bishop: “This defendant had no more to do with it and Mr. Sager knows it, than your honor.” The Court: “I have instructed Mr. Sager to proceed with the argument of this case on the evidence and instructions and not outside matters.” The defendant was thus charged before the jury in a closing argument by the State, with the duty of producing the ballots and exhibiting them to the jury and also with having obtained a prohibition against the production of the ballots, although there was no evidence that he had anything to do with obtaining the prohibition. That the circuit attorney in calling upon the defendant and his counsel to produce the ballots was guilty of a grave breach of the proprieties, there can be no doubt in our opinion. It was not the defendant’s duty to produce the ballots, neither had he any power, as counsel well knew, to produce them. Moreover, defendant had taken no action to prevent the State from endeavoring to produce them. Such a demand upon the defendant in the circumstances was most hurtful. Although counsel for defendant protested and objected to this statement, the court did not instruct the jury to disregard it, but simply told the circuit attorney that he knew nobody could bring the ballots and he ought not to hold defendant responsible for what he could not do. A defendant on trial for his liberty is entitled to the full protection of the court. The conduct of the circuit attorney called for a stern rebuke and the jury at least should have been warned to not regard the statement.

The defendant was not required to prove his innocence. It devolved upon the State to establish his guilt of the crime charged beyond a reasonable doubt. By the law of this State the defendant in a criminal cause may decline to testify in his own behalf and counsel for the State are forbidden by express statute to refer to or comment upon his failure to testify or to draw any unfavorable inference from his failure to testify. [B. S. 1899, sec. 2638.] In State v. Moxley, 102 Mo. l. c. 393, counsel for the State in his argument said: “They have offered not a word to explain or show how that woman came to her death. Not a neighbor was put upon that stand, if I am right, man, woman or child, kinsman or stranger, to show what he said had caused her death. ... We say that common honesty, common decency, requires at the hands of that man, when he sees his neighbors,.to tell how she came to her death!” This court said in regard to the con-duct of the prosecuting counsel: “This language of which complaint is made was simply an adroit and insinuating attempt, indirectly to accomplish what could not have been accomplished by a direct statement. The statute does not permit such evasions of its manifest purpose. Besides, the language used was not the law. ’ ’ Now, what difference in principle is there between a statement by counsel that the defendant had not produced any of his neighbors to testify as to what he had said was the cause of his wife’s death, and the statement of the circuit attorney in this case, that, if the accused “had any doubt about what was in the ballots, let him open them up, let him bring them into court and place them in the hands of the jury?” It was a demand upon the defendant to produce testimony to establish his innocence, and a demand with which counsel knew defendant could not comply. In what does it differ from a demand by the prosecuting attorney that defendant take the stand and give the jury his testimony, if he desires to be acquitted, in a case in which he has not offered himself as a witness, and if he does not, rest under the imputation that he is blocking the administration of justice? Charged as the defendant was with miscounting and with a fraudulent return of these ballots, what more hurtful reference could have been made to his failure to produce them, and how could the jury have been more forcibly impressed with the idea that if defendant was not guilty as charged, he would have produced the ballots? And yet, counsel knew the defendant not only could not do so but was under no legal obligation to do so. Loath as this .court is to reverse a judgment upon argument of counsel, as much as we are disposed to allow full liberty of argument, we have always held that statements of facts not in evidence are inexcusable, and if prejudicial constitute reversible error, and particularly misstatements of the law. Here the statement was not the law, and counsel was not rebuked nor the jury instructed to disregard his said statement. In our opinion the wrong done was not cured by the colloquy between the circuit court and counsel, but the poison was left in the minds of the jury and this conduct of the circuit attorney was reversible error. [Evans v. Trenton, 112 Mo. 390; State v. Weaver, 165 Mo. 1; State v. Bobbst, 131 Mo. l. c. 338, 339; State v. Mitchum, 11 Ga. l. c. 634; Tucker v. Henniker, 41 N. H. 317.]

For the errors above noted the judgment is reversed and the cause remanded for a new trial in accordance with the views herein expressed.

All concur.


author: POX, J.

text:
    THE STATE v. CLATO RILEY, Appellant.
    Division Two,
    May 26, 1910.
    1. MOTION FOR NEW TRIAL: When Filed.' A motion for a new trial in a criminal cause, to be timely, must be filed before judgment and sentence, and within four days after the return of the verdict.
    2. JUDGMENT: Motion for New Trial: Second Judgment. Where on the same day a verdict of guilty was returned a judgment of sentence in accordance therewith was pronounced and entered, and thereafter a motion for a new trial was filed and was overruled, a second judgment of sentence then pronounced must be considered a nullity.

      3. BILL OF EXCEPTIONS: Not Approved or Certified. A so-called bill of exceptions which is not certified to by the clerk, nor signed by the judge, cannot be considered.
    Appeal from Buchanan Criminal Court. — Ho». Ben. J. Casteel, Judge.
    Affirmed.

      J. B. O’Connor and Sam Wilcox for appellant.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) The motion for new trial was filed on December 7, 1908, seven days after the rendition of the verdict and, also, seven days after judgment. The motion for new trial must be filed within four days after return of verdict, and before judgment; this is mandatory. R. S 1899', see. 2689; State v. Brooks, 92 Mo. 542; State v. Dusenberry, 112 Mo. 277; State v. Plunt, 141 Mo. 626; State v. Maddox, 153 Mo. 471; State v. Pritchett, 219 Mo. 696. (2) The motion for new trial not being filed in time as required by the statute, there is nothing before the court for review but the record proper, and no error appearing in the record proper the judgment of the trial court should be affirmed. State v. P'awcett, 212 Mo. 729; Bingham v Birmingham, 103 Mo. 352; Railroad v. Brick Co., 85 Mo. 352; Ex parte Marmaduke, 91 Mo.- 228; State v. Rosenblatt, 185 Mo. 119; Ex parte Craig, 130 Mo. 595.
   POX, J.

On the 30th day of November, 1908, the defendant was convicted in the criminal court of Buchanan county of the offense of setting up and keeping a certain table and gambling device, commonly called a roulette wheel, adapted, devised and designed for the purpose of playing a certain game of chance called roulette, for money, and inducing and enticing divers persons to play and bet at and upon said table and gambling device. His punishment was assessed by the jury at imprisonment in the county jail for one year.

The record in this case shows that the verdict of the jury was returned on the 30th day of November, 1908, and that on the same day judgment of sentence was pronounced thereon by the court as follows: “It is therefore ordered and adjudged by the court that said Ciato Biley be confined in the common jail of Buchanan county, Missouri, for the period of one year from the 30th day of November, 1908, for the crime of keeping a gambling device, or until he is otherwise discharged by due course of law.”

Oin page 28 of the record transcript it is shown that on the 12th day of December, 1908, the court overruled defendant’s motion for a new trial, filed on the 7th day of December, 1908, and again pronounced sentence of judgment in the same manner and in the same words as above quoted.

The court’s action in sentencing the defendant a second time must be treated as a nullity, as the defendant had already been sentenced in open court.

Defendant’s motion for new trial was, as stated, filed December 7,1908, which was seven days after the return of the verdict and after judgment. A motion for new trial in a criminal case must be filed before judgment, and within four days after the return of the verdict. [Sec. 2689, R. S. 1899; State v. Pritchett, 219 Mo. 696; State v. Fraser, 220 Mo. 34; State v. Maddox, 153 Mo. 471; State v. Hunt, 141 Mo. 626.] Since the motion for new trial was not filed in time, there is nothing before us for review save the record proper. Furthermore, the defendant’s so-called bill of exceptions is not certified to by the clerk, nor signed by the judge before whom the case was tried, and cannot be considered by this court.

The indictment legally charges the offense, and the record, which we have carefully examined, is without error. The judgment is affirmed.

All concur.