text:
    THE STATE v. JAMES O’HEARN, Appellant.
    Division Two,
    November 14, 1911.
    VERDICT: No Designation of Count: Indicted for Murder: Convicted of Manslaughter. Where defendant was charged with murder in the second degree in two counts; in the first, with having murdered deceased with a stick of wood thirty-one inches long, and, in the second, with having murdered deceased with a stick of wood, the weight and dimensions of which are to the grand jurors unknown, a verdict, finding defendant guilty of manslaughter in the fourth degree, is not defective for that it does not designate the count of the indictment upon which it is founded. The charge of murder in the second degree embraces the crime of manslaughter; and where the verdict specifies the degree of defendant’s guilt, namely, manslaughter in the fourth degree, it is sufficient.
    Appeal from. St. Louis City Circuit Court. — Hon. Geo. C. Hitchcock, Judge.
    Affirmed.

      Elliott W. Major, Attorney-General, and Campbell Cummings, Assistant Attorney-General, for the State.
    No bill of exceptions was filed in this case. Tbe record proper is free from error, and the judgment should be affirmed. State v. Morgan, 191 Mo. 191. (1) The indictment is in proper form. Sec. 4449, R. S. 1909; State v. Woodward, 191 Mo. 617; State v. Lowe, 93 Mo. 547; State v. Minor, 193 Mo. 597; State v. Myers, 198 Mo. 225. The defendant was duly arraigned and entered his plea of not guilty. The jury was properly impaneled and sworn. The verdict of the jury is in proper form, certain and responsive to the issues. (2) Though there are two counts in the indictment charging defendant with the crime of murder in the second degree, and the verdict was guilty of manslaughter in the fourth degree, yet it will be clear to. the court on reading it that only reference is made in both counts to a single transaction — the different counts being based on description of the weapon used, a stick of wood. Therefore, the verdict is sufficient. State v. Martin, 230 Mo. 1; State v. Wilson, 126 Mo. App. 302; State v. Simpson, 126 Mo. App. 169. (3) The form of the verdict is correct and proper, but if it is not, it could furnish no ground for reversal, as such objection must be made by bill of exceptions. State v. King, 194 Mo. 474.
   BROWN, J.

No bill of exceptions was filed by appellant; neither has he favored us with any brief; but we have carefully examined the record proper, from which it appears that defendant was charged with murder in the second degree, in an indictment containing .two counts.

In the first count it is charged that defendant murdered one Ralph Coffins with a stick of wood thirty-one inches long; and in the second count it is charged that the murder was committed with a stick of wood, the weight and dimensions of which were unknown to the grand jurors.

The trial jury found the defendant guilty of man- . slaughter in the fourth degree, and fixed his punishment at a fine of five hundred dollars. This verdict does not designate the count of the indictment upon which it is founded, but it is not for that reason defective. [State v. Testerman, 68 Mo. 408.]

The charge of murder in the second degree embraces, the crime of manslaughter, of which defendant was convicted; and as the verdict specifies the degree of his guilt, it is sufficient. [State v. McCue, 39 Mo. 112; State v. Colvin, 226 Mo. 476.]

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

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


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    THE STATE v. PATRICK WHITE, Appellant.
    Division Two,
    November 14, 1911.
    1. CRIME: Absence of Criminal Intent. No one can be convicted of a felony in the absence of proof of an intent to do a criminal act.
    2. ELECTION: Former Convict: Discharge: Election Officers’ Mistake as to Right to Vote. Where defendant exhibited his discharge papers from the penitentiary to the registration officers of his voting precinct, and they informed him that said discharge entitled him to vote, it would be a harsh rule to say that he can be convicted of a felony for having unlawfully registered because those, officers were mistaken and gave him improper advice.
    3. -: -: -: Instruction: Ignorance of the Law. Defendant in 1901 had pleaded guilty to a charge of grand larceny and was sentenced to imprisonment for a term of two years in the penitentiary. In 1909 he was convicted of the crime of unlawfully registering as a voter in the city of St. Louis in September, 1908. When sworn to testify regarding his qualification as a voter, defendant testified that he had never been convicted of bribery, perjury or other infamous crime. Defendant testified in his own behalf that, at the time of his discharge from the penitentiary in 1902, the warden said to him, “Here are your pardon papers; now, go home and be a good citizen;” that prior to the next election thereafter, he exhibited to the registration officers of his precinct papers he had received when he was discharged from the ,1 penitentiary under the three-fourths rule, and was informed by j them that such papers entitled him to vote, and that thereupon ’ he did register, and vote at the election in 1904. His so-called pardon papers were not produced at the trial, and there was some evidence that they had beenlost or mislaid. The court instructed the jury that “the fact that defendant believed he had been restored to citizenship and had a right to register by reason of having been released from the penitentiary at the expiration of three-fourths of his term, is not a defense in this case;” that “the law does not permit a defendant to excuse himself for the commission of a crime on the ground that he is ignorant of the law;”, and that “a release from the penitentiary is not a pardon by the. Governor, and does not restore one to citizenship and the right/ to register as a qualified voter.” Held, that the instruction is erroneous,* because it deprived defendant of his defense that he was acting in good faith and believed he was entitled to vote. Held, on the other hand, if it be a fact that defendant swore falsely in order to register in 1908, then that would raise a strong presumption that he was not acting in good faith; or if his right to vote was challenged before he registered, that might raise a presumption that his unlawful act in registering was intentional and deliberate.
    Appeal from St. Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge.
    Reversed and remanded.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) Instruction 1 concisely sets out the offense as defined in the statute, and fairly presents to the jury the law under the facts in evidence. Sec. 4441, R. S. 1909; see.'5800, R. S. 1909; sees. 2 and 10, art. 8, Missouri Constitution. (2) Instruction 4, that appellant was ignorant of the purport of his release papers when he left the penitentiary, and the fact that he thought or believed they were pardon papers which restored him to citizenship and the right of suffrage, could be no defense in this prosecution, hence the instruction was proper.
   BROWN, J.

At the December term, 1909, of the circuit court of the city of St. Louis, defendant was convicted of the crime of unlawfully registering as a voter in said city, as prohibited by section 4441, Revised Statutes 1909, and appeals from a judgment fixing his punishment at two years’ imprisonment in the penitentiary.

In the year 1901 defendant pleaded guilty in the circuit court, of St. Louis city to the crime of grand larceny, and was sentenced to a term of two years in the penitentiary. Notwithstanding he was by that conviction rendered ineligible to vote, he applied to register and did register as a voter in said city on September 14, 1908.

There was evidence on the part of the State to the effect that when the defendant applied to register he was sworn to testify regarding his qualifications as a voter, and testified that he had never been convicted of bribery, perjury or other infamous crime. There was also some evidence indicating that some of the registration officers in the precinct where defendant registered had knowledge of the fact that he had been convicted of grand larceny, but failed to call his attention to that fact when he applied to register.

Defendant testified in his own behalf that at the time of his discharge from the penitentiary in 1902, the warden said to him, “Here is your pardon papers. Now, go home and be a good citizen.” That prior to the next election after his' release, he exhibited papers received when he was discharged from the penitentiary under the three-fourths rule, to the registration officers of his precinct, and was by said officers informed that such papers entitled him to vote. Whereupon he did register and vote at an election held in the year 1904. That in (registering on September 14, 1908, he believed his citizenship had been restored and that he was entitled to vote. There was evidence that an attorney applied to the Governor to pardon defendant a short time before he registered in 1908, and that such pardon was not granted.

Defendant’s so-called pardon papers were not produced at the trial, and there was some evidence that they had been lost or mislaid.

Among the instructions given to the jury was the following:

“If you find the facts in this case to be as set out in instruction No. 1, then the fact, if you find it to be a fact, that the defendant believed that he had been restored to citizenship and had a right to register by reason of having been released from, the penitentiary at the expiration of three-fourths of the term for which he was sentenced to the penitentiary (if you find from the evidence that he had been sentenced, to the penitentiary and had been so released) is not a defense in his behalf in this case. The law does not permit a defendant to excuse himself for the commission of a crime on the ground that he is ignorant of the law. Such a release from the penitentiary is not a pardon by the Governor and does not restore one to citizenship and the right to register as a qualified voter.”

The giving of this instruction was assigned as error in defendant’s motion for a new trial, though he has not favored us with any brief herein.

We think the court erred in instructing the jury as above set out, because it entirely deprived defendant of his defense that he was acting in good faith and believed he was entitled to vote.

While it is true that ■ everybody is supposed to know the law, it is nevertheless a fact that the most trained judicial minds often have great difficulty in determining what the law is on a given subject.

The judges and clerks of election were acting under instructions from the election commissioners, or other proper officers, concerning the qualifications of voters; and if it be true that defendant did exhibit his discharge from the penitentiary to the registration officers of his voting precinct, and said officers informed him that said discharge entitled him to vote, it would be a harsh rule to say that he can be convicted of a felony because these election officers were mistaken and gave him improper advice.

If it is a fact that defendant swore falsely in order to register on September 14, 1908, then it would raise a strong presumption that he was not acting in good faith; or if his right to vote had been challenged before he registered, this might raise a presumption that his unlawful act in registering was intentional and deliberate; but under the laws of our State, no one can be convicted of a felony in the absence of proof of an intent to do a criminal act. [State v. Schilb, 159 Mo. 140; State v. Rigall, 169 Mo. 663.]

The trial court erred in instructing the jury that the intent with which defendant did the act was no defense; and for that error, we reverse its judgment, and remand the cause for a new trial.

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


text:
    THE STATE v. JAMES MITCHELL, Appellant.
    Division Two,
    November 14, 1911.
    1. GRAND JURY: Not Impaneled: No Motion to Quash. Where defendant does not move to quash the indictment on account , of the alleged failure of the court to impanel or swear the grand jury, and does not plead those facts in abatement of the indictment, his assignment on appeal that the judgment must be reversed because the grand jury which returned the indictment was neither impaneled nor sworn, must be disregarded.
    2. ARRAIGNMENT: None for Murder in Second Degree: Convicted of Assault with Intent to Kill. Where defendant was indicted for murder in the second degree and tried on that charge, but was arraigned for murder in the first degree and for assault with intent to kill, and was convicted of an assault with intent to MU, he cannot complain that he was not arraigned for murder in the second degree. He was not prejudiced by the failure to give him an opportunity to plead to the charge of murder in the ■ second degree, and a judgment will not be reversed on account of errors wMch do not prejudice defendant in the trial or determination of the same.

      Appeal from Texas Circuit Court. — Hon. L. B. Woodside, Judge..
    Affirmed.

      Geo. T. Meador for appellant; Pat Miley of counsel.
    (1) The record is silent in this ease as to the convening of the court, the impaneling and swearing of the grand jury, at the time this indictment was returned into court, hence the court had no jurisdiction to try the cause. R. S. 1909, sec. 5066; State v. Hurst, 123 Mo. App. 39; State v. Bobbst, 131 Mo. 335; State v. Lord, 118 Mo. 1; State v. Armstrong, 167 Mo. 267. (2) Appellant having only been arraigned on the charge of murder in the first degree and felonious assault, could not legally be tried for murder in the second degree, without having had an opportunity to plead to that charge. R. S. 1909, see. 5165; State v. Barnes, 59 Mo. 154; State v. Barnett, 63 Mo. 300; State v. Boatright, 182 Mo. 34. (3) The bill of exceptions, the only repository for proof, fails to show that the offense was committed in Texas county. This necessitates a reversal of the ease. State v. Kindrick, 21 Mo. App. 507; State v. Prather, 41 Mo. App. 451; State v. McGrath, 73 Mo. 181.

      Elliott W. Major, Attorney-General, and Campbell Cummings, Assistant Attorney-General, for the State.
    (1) The second count in the indictment, the one upon which appellant was convicted, uses the statutory terms and substantially follows the approved form. State v. Barton, 142 Mo. 450; State v. Williams, 191 Mo. 205; State v. Maguire, 113 Mo. 670; State v. Hoffman, 78 Mo. 256. (2) Where it is contended that the record does not show that the grand jury was regularly impaneled or sworn,'such a question must be raised by plea in abatement, or motion to quash and evidence in proof thereof, as shown by the bill of exceptions, and cannot be raised after trial. ' Such an error or irregularity is cured by the verdict. State v. Randolph, 139 Mo. App. 314; State v. Glasscock, 232 Mo. 278; State v. Smallwood, 68 Mo. 192; State v. Griffin, 87 Mo. 608; State v. Pate, 67 Mo. 488; State v. Clifton, 73 Mo. 430; State v. Mann, 83 Mo. 580. (3) Appellant complains that he was arraigned on the charge of murder in the first degree and felonious assault, and not murder m the second degree, and that such trial on the second degree was erroneous. This claim is without merit. The absence of arraignment on the charge of murder in the second' degree was harmless, as appellant was acquitted by the verdict of that charge, and was found guilty only on the charge of felonious assault.
   BROWN, J.

Upon an indictment charging him with murdering one John Moore, and also with assaulting said Moore with intent to kill, defendant was tried in the circuit court of Texas county on November 16th, 1910, and convicted of the crime of assault with intent to kill; and appeals from a judgment fixing his punishment at three years in the penitentiary.

The evidence establishes the fact that defendant, without reasonable provocation, stabbed deceased with a knife, inflicting serious wounds; that said Moore died eight months after the assault; but the evidence is not conclusive as to whether he died from the wounds inflicted by defendant or from other causes.

The instructions, none of which are complained of by defendant, submitted to the jury in the alternative, the charge of murder in the second degree and assault with intent to kill.

The defendant seeks a reversal of the judgment because, (1) the grand jury which returned the indictment was neither impaneled nor sworn; (2) defendant was tried for murder in the second degree without first being arraigned on that charge; and (3) the venue of the crime was not proven.

OPINION.

Defendant’s first assignment of error must be disregarded, because he did not move to quash the indictment on account of the alleged failure of the court to impanel or swear the grand jury; nor did he plead those facts in abatement of the indictment. [State v. Smallwood, 68 Mo. 192; State v. Glasscock, 232 Mo. 278.]

The record shows that while defendant was in-dieted for murder in the second degree and tried on that charge, he was arraigned for murder in the first degree and assault with intent to Mil. If he had been convicted of murder in the second degree, the failure of the court to arraign him on that charge might have been cause for reversal; but as he was acquitted of the charge of murder and only convicted of assault with intent to Mil, we cannot understand how he was prejudiced by the failure to give Mm an opportumty to specifically plead to the charge of murder in the second degree.

We cannot reverse judgments on account of errors wMch do not prejudice the defendant in the trial or determination of the cause; and therefore, must overrule defendant’s second attack on the judgment.

The contention of defendant that the evidence does not prove that the crime was committed in Texas county is not supported by the record. Mrs. C. A. Moore, on behalf of the State, testified that the fight in which her husband was wounded occurred in Texas county.

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

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


author: FERRISS, J.

text:
    THE STATE v. FRANK BURNS, Appellant.
    Division Two,
    November 14, 1911.
    1. INFORMATION: Local Option Law: Orders for Liquors: Words of Invalid Statute: Verdict: General Finding. The information charged that the defendant did ‘ ‘willfully and unlawfully order for, receive, keep, store and deliver . . . one half pint of whiskey for” another, in a local option county, in violation of sections 7226, 7227 and 7228, R. S. 1909. Held, that, inasmuch as section 7226 is invalid, the words “order for, receive” in the information may be disregarded as surplusage, and the remainder of the charge, namely, “keep, store and deliver,” is good under section 7227, and hence a general finding of “guilty as charged in the information” was not erroneous.
    2. -: -: -: Disjunctive Words Charged Conjunctively: Proof: Verdict: General Finding. While the statute (Sec. 7227, R. S. 1909) makes it an offense to either “keep, store or deliver” intoxicating liquor for or to any person in any county that has adopted the Local Option Law, it is good pleading to charge all three conjunctively in one count, and proof of either will sustain the information and justify a general verdict.
    3. LOCAL OPTION LAW: Buying for Another: Facts Authorizing Conviction: Keeping. The information charged that defendant did .‘.‘willfully and unlawfully . . . keep, store and deliver . . . ■ one-half pint of whiskey for one Alex. Hixon,” in a local option county, in violation of sections 7227 and 7228, R. S. 1909. The facts were that defendant was in a buggy, at Mt. Vernon, Lawrence county, in which the Local Option.Law had been adopted, when Hixon asked him where he was going, and he replied, “Freistatt,” a town ten miles away. Hixon asked him if he would bring him a pint of whiskey if he would give him the money for it. Defendant said he would, whereupon Hixon gave him a half dollar. Defendant got the whiskey at Freistatt, and returned with it to Mt. Vernon, and the next day started to deliver it to Hixon, but while on the way was arrested by the sheriff, who took the whiskey from him and locked it up, and it was never delivered to Hixon. Held, that defendant is guilty of keeping intoxicating liquor for another under section 7227, which declares that “no person shall keep, store or deliver for or to another person, in any' county that has adopted the Local Option Law, any intoxicating liquors whatsoever;” and is not to be excused by section 7228, which declares that “nothing in this act shall be construed to prohibit any person from ordering liquor for his own or family use, where such liquor is sent direct to the person using it.” To be excusable under said section 7228 the transaction should be between the one who orders for his own use and the dealer who fills the order. The order may go by mail or messenger, and the article may be sent by express or messenger, but the buyer must deal in his own name with the seller, and the seller must send the intoxicating liquor directly to the buyer.
    4. -: -: Delivery. Intention to deliver is not equivalent to delivery. Defendant did not deliver the whiskey to Hixon, and therefore cannot be convicted of delivering, whatever may have been his intention.
    5. -: -: Keeping. But defendant did keep the whiskey for Hixon in his possession over night. That fact brings him within the statute. Prom the time he bought it for Hixon until he attempted delivery he kept it in his possession, and was therefore within the terms as well as the spirit of the statute. He had bought it for Hixon, not for himself. The seller did not deal directly with Hixon. Defendant was not a mere carrier or messenger for either the seller or the buyer.
    Appeal from Lawrence Circuit Court. — Eon. John T. Moore, Judge.
    Affirmed.

      Parker Potter and B. E. Landrum for appellant.
    (1) The first section of the “Order House Act,” Laws 1907, pp. 231 and 232, upon which the main charge in this information is based, is unconstitutional. State v. Rawlings, 232 Mo. 544. (2) The information charging offenses under two separate sections, one of which was unconstitutional, the court proves his own error by refusing to quash the information and rendering a general verdict of guilty as charged, for he showed by this act that he was of the same opinion that the trial judge was in the Rawlings case (that defendant was guilty) if he did either of the acts charged in' the information. State v. Raw-lings, 232 Mo. ,544. (3) Where the information charges separate and distinct offenses a general verdict of guilty without specifying the charge on which it is founded is insufficient to sustain a conviction. State v. Harmon, 106 Mo. 635; State v. Brown, 66 Mo. App. 280; State v. Hudson, 137 Mo. 618; State v. KarlowsM, 142 Mo. 463; State v. Nich, 79 Mo. App.. 99. (4) The court should have sustained defendant’s motion for a new trial, because there was no substantial evidence to comdct defendant of a violation of any law of tMs State. State v. Baker, 144 Mo. 323. (5) The whole evidence brought the defendant clearly within* the protection of the tMrd section of the Order House Act, now Sec. 7228, R. S. 1909; providing that nothing in the next two preceding sections shall be construed to proMbit any person from ordering liquor for Ms own or family use, where such liquor is sent direct to the person using the same. (6) There is an entire failure to prove “keeping or storage” of wMskey by defendant. The words “keep and store” have a well defined meaning in law, and involve the idea of continuity of habit, the words meaning to habitually have in possession or in store for another and not the mere possession for carrying from one point to another. 4 Words and Phrases, p. 3916; 7 Words and Phrases, p. 6675; Haynes v. Ins. Co., 11 N. T. (1 Kern.) 554; Mosley v. State, 74 Ga. 404; Renshaw v. Mo. Mutual, 103 Mo. 595; Commonwealth v. Palmer, 134 Mass. 537; People v. Rice, 103 Mich. 350.

      Elliott W. Major, Attorney-General, and John M '. Dawson, Assistant Attorney-General, for the State.
    The information charges that the Local Option Law ‘was in full force and effect in Lawrence county, and that appellant within said county “did then and there willfully and unlawfully order for, receive, keep, store■ and deliver distilled, fermented and intoxicating liquors.” This court in the Rawlings ease having held section one of the act unconstitutional and void, the only question here presented for consideration is, whether or not the information is bad because it contains an alleged offense not found in Sec. 7227, R. S. 1909, to-wit, “order for, receive.” Had the court given an instruction to find appellant guilty of “ordering for and receiving” intoxicating liquors, than that portion of the Rawlings ease cited by appellant, pp. 562, 563, would have been in point, but this is not the case here, as no instructions were asked and none given. The Statute of Jeofails, Sec. 5115, R. S. 1909, specifically provides that no indictment or information shall be invalid, nor shall the trial judgment, or other proceedings thereon, be set aside, arrested or in.any manner affected “for any surplus-age or repugnant allegation, where there is sufficient matter alleged to indicate the crime and person charged.” State v. Edwards, 19 Mo. 675; State v. Leonard, 22 Mo. 449; State v. Van Zant, 71 Mo. 541; State v..Meyers, 99 Mo. 107; State v. Morse, 55 Mo. App. 332; State v. Boatright, 61 Mo. App. 469. (b) The information may charge the defendant with the commission- of all the acts named in the statute. 1 Bishop, Crim. Pro. (1 Ed.), sec. 191; State v. .Gross-man, 214 Mo. 242. (e) This information is based upon the second section of the Act of 1907 (Sec. 7227, R. S. 1909). The fact that it uses the words “order for, receive,” does not make it invalid. These words are merely surplusage. State v. Rawlings, 232 Mo. 561. (d) The information is not defective in charging several different offenses in one count. Where a statute mentions several acts and prescribes that each shall constitute the same offense and be subject to certain punishment, the information may charge any one or all of such acts as constituting a single offense. State v. Montgomery, 109 Mo. 645; State v. Finley, 77 Mo. 338; State v. Pittman, 76 Mo. 56; State v. Bregard, 76 Mo. 322; State v. Fields, 210 Mo. 188; State v. Grossman, 214 Mo. 242. (7) The injunction of the statute is against keeping, storing or delivering for or to another, any intoxicating liquors of any kind whatsoever. The proof of any one of these three offenses would be sufficient to sustain a conviction. The evidence reveals that appellant had two bottles of whiskey to deliver, and the uneontradicted proof is that he would have delivered them had he not been caught and arrested by the sheriff. This is sufficient under the statute. “Delivery” is defined by Webster as, to give or transfer, to yield possession or control of, to part with, to make or hand over, to make delivery of, to commit, to surrender. Delivery is a transfer of the possession of property. Turner v. Moore, 58 Vt. 455; Bloyd v. Pollocks, 27 W. Ya. 75; State v. Watson, 65 Mo. 115; O’Banuon v. Southern Ex. Co., 51 Ala. 481; Railroad v. Page, 35 Ark. 304.
   FERRISS, J.

Defendant was convicted under an information which, in proper form, charged that he did “willfully and unlawfully order for, receive, keep, store and deliver . . . one-half pint of whiskey for one Alex Hixon,” in a local option county, in violation of the Act of 1907, Laws 1907, p. 231 (now Sees. 7226, 7227, 7228 and 7229, R. S. 1909), the first three sections of which read as follows:

“Section 1. It shall be unlawful for any person or persons not a licensed dramshop-keeper or by law authorized to sell liquor as a wholesaler, to order for, receivei, store, keep or deliver, as agent or otherwise, of any other person, intoxicating liquors of any kind.
“Sec. 2. No person shall keep, store or deliver for or to another person, in any county that has adopted'or may hereafter adopt the Local Option Law, any intoxicating liquors of any kind whatsoever.
“Sec. 3. Provided, however, that nothing in this act shall be construed to prohibit any person from ordering liquor for his own or family use, where such liquor is sent direct to the person using same.”

The facts were that defendant was in a buggy, at Mt. Yernon, Lawrence county, when Alex Hixon asked him where he was going. He said “Ereistatt,” a town about ten miles away. Hixon asked him if he would bring him a pint of whiskey if he gave him the money for it. Defendant said he would, whereupon Hixon gave him a half dollar. At the same time, and under similar circumstances, one Bob Hughes gave defendant fifty cents to get a pint of whiskey for him. Defendant got the whiskey at Ereistatt, and returned with it to Mt. Vernon. The next day defendant started to deliver the whiskey to Hixon and Hughes, but was arrested by the sheriff while on the way. The officer took the whiskey from him and locked it up, and it never was delivered.

The Local Option Law had been adopted in Lawrence county, outside Aurora, before this event, and had also been adopted by the city of Aurora, a city of more than 2500 inhabitants.

The ease was tried by the court, a jury being waived. The court rendered a general finding that the defendant was “guilty as charged in the information,” and sentenced him to six months in jail.

I. It is contended by the defendant that inasmuch as the information charged several offenses, defined in both, sections 1 and 2 of the act, a general finding was erroneous. We think not. That portion of the charge in the information, “order for, receive,” which is based upon section 1 of the Act of 1907 (now See. 7226, R. S. 1909) may be rejected as surplusage (Statute of Jeofails, Sec. 5115, R. S. 1909; State v. Rawlings, 232 Mo. 544) inasmuch as we held in the Rawlings ease that section one was invalid. The remainder of the charge, to-wit, “keep, store and deliver,” is good under section two of the act.. While the statute makes it an offense to either keep, store or deliver, it is good pleading to charge all three conjunctively in one count, and proof of either will sustain the information and justify a general verdict. [State v. Currier, 225 Mo. 642; State v. Rawlings, supra.]

II. Defendant claims that upon the uncontradieted evidence he is not guilty of an offense against this Act of 1907. Section three of this act (See. 7228, R. S. 1909) provides that “nothing in this act shall be construed to prohibit any person from ordering liquor for his own or family use, where such liquor, is sent direct to the person using same.”

True, the whiskey in question was wanted by Hixon for Ms own use. It is also true, as argued by the counsel for defendant, that if, under the last-named section, “a person has a right to order wMskey and have it sent to Mm, some person or persons must be allowed to bring it.” The statute, however, plainly contemplates, by the expression “where such liquor is sent direct to the person using same,” that the buyer shall deal in Ms own name with the seller, and that the seller shall send the wMskey directly to the buyer, knowing to whom he is sending it. Whether the order goes by mail or by messenger may not be important, nor whether the article is sent by express or by messenger, but it is important that the transaction should be between the one who orders for his own use and the dealer who fills the order. Other-' wise one could traffic in whiskey in defiance of the statute by securing his customers and payment in advance, then buy the whiskey in his own name, deliver it to his respective customers and, if charged under the statute, say, “I was merely a messenger for persons who ordered for their own use.”

It does not appear that the dealer in Preistatt sent the whiskey to .Hixon, nor that he knew that Hixon was to get it. We can only conclude that, so far as the dealer at Preistatt was concerned, defendant bought the whiskey as for himself.

III. The constitutional objections raised are disposed of and held insufficient in State v. Rawlings, supra.

IV. ' The evidence is sufficient to sustain a conviction for keeping for another person. We do not agree with the Attorney-General that intention to deliver is equivalent to delivery. The defendant did not deliver the whiskey to Hixon, and therefore cannot be convicted of delivering, whatever may have been his intention. He did, however, retain in his possession, that is, keep in his possession over night, the whiskey for Hixon. We think this fact brings defendant within the statute. The lawmakers intended to cover each step in the process by which one man should get liquor for another. This defendant had taken every stép excepting the last — that of delivering. Prom the time he bought the whiskey until the attempted delivery he kept it in his possession, and was within the terms as well as the spirit' of the statute. Doubtless a mere carrier or messenger, in the case of a direct order as explained above, may retain, lawfully, possession for such time as is convenient and customary for delivery. He is not keeping it during such interval in the sense intended by the statute. But the defendant, who was in pos-, session of the whiskey for an unlawful purpose, was, during every moment of such possession, keeping it, under our construction of the statute. This is in line with the distinction made by us in the Rawlings ease between storing and keeping.

• Finding no reversible error in the record, the judgment is affirmed.

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


author: KENNISH, P. J.

text:
    THE STATE v. WALTER S. REED, Appellant.
    Division Two,
    November 14, 1911.
    1. • CARNAL KNOWLEDGE: Assessment of Punishment by Jury. The court does not err in giving an instruction, in a carnal knowledge ease, authorizing the jury to assess the punishment.
    2. -: Pregnancy of Prosecutrix. Testimony of a physician that h© has made an examination of the prosecutrix and that she is in a pregnant condition, is competent in a carnal knowledge case.
    3. -: Promise of Marriage. It is competent for the prosecutrix in a carnal knowledge case to testify that she submitted to defendant under a promise of marriage. Such testimony tends to show her condition of mind prior to and at the time of 'the offense; and, as the State must, prove that she was of previously chaste character, what defendant did or said directly leading up to the act by which she lost that character is competent.
    4. -: Previous Chaste Character: Conflict in Testimony. Where three boys testified that they had had sexual intercourse with the prosecutrix, between seventeen and eighteen years of age, prior to the time of the alleged offense, and 'detail the places and circumstances, and eight other witnesses, residents of the community, whose standing and character are unassailed, testify that her reputation for virtue and'Chastity prior to that time was bad; and seven other witnesses, also neighbors, testify either that her reputation was good or that they had never heard it called in question, and she herself testifies that prior to that time she had never had sexual intercourse with anyone, the testimony is in such conflict that the issue of her previously chaste character must be left to the jury to settle, although it is enough to raise a reasonable doubt in the mind of the appellate court as to that issue.

      Appeal from Jasper Circuit Court. — Hon. D. E. Blair, Judge.
    Affirmed.

      George R. Clay and R. H. Davis for appellant.
    (1) In departing from the universal course of procedure, the Legislature evidently believed that justice would be best subserved by leaving the question of punishment to the judge, as the judge, by reason of his education and experience in the trial of such and kindred eases, would be supposed to be better qualified to assess the punishment than a jury, fresh from their farms, shops and business houses, and without experience, in the weighing of testimony in the trial of such cases. (2) The fact that the prosecuting witness was pregnant did not tend in the slightest degree to prove that defendant was guilty of having sexual intercourse with her, and the testimony of Dr. Winchester and the prosecuting witness that she was pregnant was not relevant to any issue on trial, and no doubt influenced the jury in assessing the punishment of defendant.

      Elliott W. Major, Attorney-General, and Campbell Cummings, Assistant Attorney-General, for the State.
    (1) The assessment of punishment by the jury does not vitiate the verdict if the court adopts it and assesses the punishment as it did in this ease. Moreover, under the statute, where the jury finds a verdict, of guilty and assesses a punishment not authorized by law, the court shall assess and declare the punishment and render judgment accordingly. State v. Harney, 168 Mo. 197; See. 5254, E. S. 1909 (Sec. 2649, E. S. 1899); State v. King, 194 Mo. 474; State v. Mc-Donough, 232 Mo. 219. (2) Appellant’s ground 4, in his motion for a new trial, “Because the verdict of the jury was unsupported by the testimony,” is without merit. The Supreme Court will not interfere with a verdict in a criminal case upon the ground that it is against the evidence, unless there is such a lack of evidence as to indicate that the jury acted from prejudice. State v. Lowe, 93 Mo. 547.
   KENNISH, P. J.

At the January term, 1911, of the circuit court of Jasper county, the appellant was convicted of the offense of having carnal knowledge of an unmarried female of previously chaste character, between fourteen and .eighteen years of age. His punishment was assessed at imprisonment in the penitentiary for a term of two years, and he appealed to this court.

. At the trial in the circuit court the State introduced evidence tending to show the following facts:

The prosecuting witness, Gertrude Young, who lived with her parents in Rex City, Jasper county, Missouri, was between seventeen and eighteen years of age at the time of the alleged offense. The defendant was about twenty years of age, and he and prosecutrix had known each other all their lives. During the months of August and September, 1910, the defendant and prosecutrix were frequently together and he called at her home two or three times a week. On the .evening of August 4, 1910, he accompanied her to. the home of her sister and then back to- the home of -her. parents. While returning from the home of the. .sister they sat down by the roadside and the defendant “insulted” her. ‘ She arose and started to go ..'home, but the defendant begged her to remain and continued his solicitations. Upon his promise that he would marry her if she “got in a family way,” she yielded and had sexual intercourse with him. She testified that she had never had sexual intercourse prior to that time and had never been married.

The defendant did not testify in his own behalf. Three young men, ranging from seventeen to twenty-two years of age, testified as witnesses for the defendant. Each of the three testified to having had sexual intercourse with prosecutrix prior to August, 1910, and stated the place and circumstances of each sexual act. A large number of witnesses testified that they were acquainted with the reputation of prosecutrix for virtue and chastity in the community in which she resided prior to August, 1910, and that such reputation was bad. These witnesses consisted of both men and women,' who lived in the immediate neighborhood of her home. A neighbor woman testified that one evening when prosecutrix and a young man walked by her home the young man had his arm around prosecutrix. A young man testified that prosecutrix once said to him: “Don’t you think Oscar is cute? I would like to have him up in the barn loft.” This incident occurred and this remark was made prior to the time of the alleged commission of the offense.

The State introduced several witnesses in rebuttal to prove the good reputation of the prosecutrix. Some of them testified that they knew her reputation for virtue and chastity prior to the time it became known she was pregnant and that it was good. A majority of them, however, did not state that they knew her reputation, but testified that they lived in the community in which she resided and had never heard her character questioned until it became known that she was pregnant.

I. Appellant complains that the court erred in giving instruction numbered 2, authorizing the jury to assess the punishment in case they should find the defendant guilty. This contention is based upon that part of the carnal knowledge statute which provides that the punishment, between the limits prescribed, shall be assessed i‘in the discretion of the court.”

The facts of this case, as to the point under review, are not materially different from the facts in the case of State v. Hamey, 168 Mo. 167. That case was decided by the Court in Bane, having been transferred there from this division because of a dissenting opinion. It involved both the constitutionality of the statute under consideration, and the action' of the trial court in giving to the jury an instruction authorizing them to assess the punishment in case of a conviction. The court sustained the statute and held that the trial court did . not err in giving the instruction complained of. That case is decisive against appellant’s contention and no reason appears why the question should be now reopened.

II. Dr. Winchester was introduced as a witness for the State and, over defendant’s objection, was permitted to testify that he made an examination of the prosecutrix and that she was in a pregnant condition. The action of the court in overruling the -defendant’s objection to this testimony is assigned as error. The ground of the objection is that the testimony “is not competent to prove that this defendant committed the act charged.” In the case of State v. Palmberg, 199 Mo. 231, this court held it competent, in a prosecution under the carnal knowledge statute, for the prosecuting witness to testify that she became pregnant and gave birth to a child as the result of the intercourse with the defendant. If the prosecuting witness may thus testify to her pregnancy, it was not error for a physician, who had made an examination, to testify to the same fact.

In ease of seduction under promise of marriage it is always competent for the State to prove pregnancy and the birth of a child as the result of the offense, and pregnancy is no more an element of that crime than it is of the crime charged in this case. We think this testimony was competent and that the court did not err in overruling defendant’s objection.

III. It is assigned as error that the court permitted the prosecuting witness to testify, over defendant’s objection, that the defendant persuaded her to submit to him under a promise of marriage. While the authorities are not in accord as to the competency of evidence as to a promise of marriage, under kindred statutes to that now before us, the prevailing rule seems to be in favor of its competency. Under statutes making seduction a criminal offense, even where a promise of marriage is not a requisite element, it is competent for the State to prove the promise. [35 Cyc. 1363, and cases cited; State v. Bennett, 110 N. W. (Iowa) 150.] The reason given in support of the admissibility of such testimony is that it tends to show the condition of mind of the female seduced, a fact always material under such a charge.

In this case it was incumbent on the State to prove that the prosecuting witness was a female of previously chaste character, and no good reason is perceived why what the defendant said or did, directly leading up -to the act by which she lost such character, is not competent upon that issue. If the prosecutrix yielded because of a promise of marriage, as she testified, such promise is so immediately connected with the question of her previously chaste character and with the act of the defendant which the law denounces, that it becomes a part of the transaction and is essential to a proper understanding of the facts which constitute the offense. We hold that the testimony thus objected to was competent. But even if it had been incompetent, its admission in this case could not be held prejudicial error, for the reason that the defendant’s objection thereto was made after the witness had answered the question. In such case the proper course, in order to save the ruling of the court for review on appeal, is not to object to the question, but to move to strike out the answer and to save an exception in case of an adverse ruling. [State v. Lovell, 235 Mo. 343; State v. Bateman, 198 Mo. 212; State v. Sykes, 191 Mo. 62; State v. Foley, 144 Mo. 600.]

IV. One ground of the motion for a new trial is that the verdict is against the evidence, and this we consider the most serious question presented. The defendant introduced fourteen witnesses whose testimony tended to prove that the prosecutrix was not of previously chaste character. Four of these were young men who testified that they had sustained improper relations with her, three before and one after the date of the alleged crime. Eight men and women of the neighborhood testified that the reputation of the prosecutrix for virtue and chastity, prior to the date of the offense, was bad. There is nothing apparent in the record to cast discredit upon these witnesses except in the case of the four boys, and in their case only their admitted misconduct with the prosecuting witness. To offset this formidable showing by the defense, the State introduced seven witnesses who testified that the reputation of the prosecutrix was good or that they had not heard her character called in question. A number of these witnesses for the State testified that they knew the defendant’s impeaching witnesses and that they were considered “good people.”

The statute under which the defendant was convicted was intended to protect young girls of chaste character from, becoming the victims of the seducer. It was not intended to protect those who were not of chaste character, nor to punish men who might be guilty of misconduct with females of the latter class. In every case prosecuted'under this statute, where the prosecutrix appears on the witness stand in a pregnant condition, as in this case, it is reasonably certain that some man, at some time, in his relations with her, has violated this law. But it will not do to presume that because of the accusation the accused is necessarily guilty or that any witness who testifies in his behalf is unworthy of belief.

There was before the jury conflicting testimony on the issue of chaste character, and although, as found from an examination of the record, without the advantage of having observed the witnesses on the stand, the testimony for the defendant seems at least sufficient to have raised a reasonable doubt, yet there was substantial evidence to warrant the finding of the jury, and it was their province to weigh the testimony and determine the facts.

In the case of State v. Harney, supra, a case under the same statute, the sufficiency of the evidence was challenged, and this court, using language quite applicable to the case at bar, said:

“As to the sufficiency of the evidence to sustain the verdict of the jury, the testimony of the witnesses was heard by the jury. The jury had an opportunity of seeing them and observing their demeanor, on the stand, and it was their peculiar province to weigh their testimony and believe or disbelieve it. They believed the prosecutrix and did not’ believe the defendant’s witnesses. The verdict has. been approved also by the judge of the criminal court who also had the advantage of seeing the witnesses and observing their manner.”

It is a well settled rule of appellate procedure that where there is substantial evidence tending to prove the facts charged, this court will not disturb the verdict. [State v. Fields, 234 Mo. 615; State v. Sharp, 233 Mo. 269; State v. Cannon, 232 Mo. 215.]

An examination of the record has failed to disclose prejudicial error, and accordingly the judgment is affirmed.

Ferriss and Brown, JJ., concur.


text:
    THE STATE v. OLDEN McQUITTY, Appellant.
    Division Two,
    November 14, 1911.
    SELF-DEFENSE: Instruction: Conflicting: Imminent Danger. It is sufficient under the law, to support the plea of self-defense, that defendant had reasonable cause to believe, and did believe, that danger existed and was impending at the time he struck the fatal blow. An instruction which tells the jury they “must believe and find from the evidence that the defendant had reasonable cause to apprehend and did apprehend that Carlos was about to inflict upon Mm some great bodily harm, and that such danger was imminent and impending,” standing alone, might be construed to mean that the jury must find that the danger was imminent and impending; but when read in connection with an instruction given for defendant, declaring that “neither is it necessary that defendant’s danger should have been real or actual, or that it should have been impending or about to fall, but if he had reasonable cause to believe and did believe,” etc., it eoMd not have misled the jury, and the two are not in conflict.
    Appeal from Boone Circuit Court. — Hon. N. D. Thurmond, Judge.
    Affirmed.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    The instructions are full, fair and complete. They leave it to the jury to determine whether or not the knife used by appellant? was a deadly weapon. No complaint is made to the instructions in ■ the motion for new trial, except as to instruction 1 on the part of the State upon murder in the first degree, and that No. 4 on the part of the State, is in conflict with No. 1 on the part of appellant, and because all of the eleven instructions given for the State were erroneous. Appellant cannot be serious in these objections to the instructions, as the court will find, upon a perusal of .each and every instruction given, that they fully cover the evidence, and that when the instructions are taken as a whole they fully cover the law under the evidence in the cause. They are so full, fair and complete that we do not deem it necessary to comment on each instruction and cite authorities in support thereof. State v. Baker, 209 Mo. 444; State v. Daly, 210 Mo. 664.
   FERRISS, J.

Under an indictment charging him with murder in the first degree, for the killing of Earnest Carlos, defendant was convicted of the crime charged and sentenced to life imprisonment in the penitentiary. He appeals from the judgment.

The evidence for the State, elicited from numerous eye-witnesses, tended to prove the following facts:

On the evening of May 22, 1909, the defendant, deceased and five companions, William and Newland Dysart, Mort and Porter Strawn and W. E. Murray, were in Woodlandville, a small town in Boone county. On the north side of a street in said town was a store, and on the south side, nearly opposite said store, was a barber shop. Some fifteen or twenty feet east of the store was a stile leading from the street to a plank sidewalk. It was, dusk;' the lamps were lighted in the store and shone through a door located at the southeast corner of the store. About eight o’clock that evening defendant MeQuitty came out of the barber shop mentioned, and said, “Somebody is going to have to make a skidoo from here pretty damn quick.” He crossed the street to the stile, around which the deceased and the other young men named were sitting or standing. The deceased made a bet of seventy-five cents with defendant that he conld not make seven in the first throw of dice, and the money was placed in the hands of William Dysart. It was then discovered that none of the boys had any dice with them; so the money was returned to the owners by the stakeholder. Then the defendant left the stile, walked out in the street, and said, “Come here, Carlos; I want to see you.” The deceased walked towards the defendant, and, when within a few feet of him, was heard to say, “What in the hell are you doing with that knife in your hand?” Just then the defendant struck the deceased over the eye with his knife. All the young men present heard the “lick,” and Newland Dysart saw defendant strike the deceased with his knife. The deceased called Mort Strawn to him, saying, “that nigger has stuck a knife in me,” and- asked Strawn to pull the knife out. An effort was made to extract the knife, but without avail. The knife was the size and style of what is known as the Barlow knife, with a blade between two and a half and three inches in length. The blade had penetrated the skull and brain as far as the handle would permit. Defendant ran away after striking the blow. The deceased was laid on a cot in the barber shop, and a physician, Dr. Halsey, summoned. The doctor, with the assistance of others, removed the knife with a pair of blacksmith’s tongs, the deceased at the time being in a semi-conscious condition. Deceased lingered until the first day of July, 1909, when he died from the effects of the wound.

Defendant, testifying in his own behalf, admitted that he struck the deceased with • his knife. He testified that he walked away after the betting incident, and that when he was about opposite the southeast corner of the store Carlos called to him, saying, “Hold on there a minute;” that he turned around and saw deceased coming towards him, cursing; that deceased asked him if he had any whiskey, and upon Ms answering that he had not, deceased said he was a G-d-liar; that he again started to walk away when deceased said, “Hold on there — I want you anyhow, G- d-you;” that deceased, with Ms hand tMown back, kept coming towards Mm, and that he then struck deceased with Ms kmfe; that he could not tell whether or not the deceased had anytMng in Ms hand, and that he struck the deceased to keep Mm from hurting Mm; that he never had any trouble with Carlos before, did not intend to kill him, and that Ms aim was to strike Mm on the arm.

There was no other material evidence given for the defense. The witnesses for the State all told substantially the samé story, wMch was uncontradicted save as appears from the testimony of the defendant.

The defendant is not represented in tMs court, but he was defended by able counsel in the court below. The court instructed the jury on murder in the first degree, murder in the second degree, manslaughter in the third degree, and self-defense, and the instructions as a whole were favorable to the defendant. He had the benefit of an instruction on manslaughter in "the third degree, although the testimony properly confined the ease to murder in the first and second degrees, and self-defense.

Instruction numbered 4 for the State reads as follows:

“The court instructs the jury that before they can acquit the defendant upon the ground of‘ self-defense, you must believe and find from the evidence that the defendant had reasonable cause to apprehend and did apprehend that Earnest Carlos was about to inflict upon Mm some great bodily harm, and that such danger was imminent and impending, and unless you so believe you will find the defendant grnlty and assess Ms pumshment as provided in these instructions.”

Defendant in Ms motion for a new trial asserts that tMs instruction conflicts with instruction numbered 1 given for defendant, wMch reads thus:

- “The court instructs the jury that if you And and believe from the evidence that defendant had good reason to believe, from the words, acts and conduct of Earnest Carlos, that said Carlos had a design to do defendant some great personal injury or bodily harm, and that defendant had reasonable cause to believe there was imminent danger that such design was about to be accomplished, then defendant had a right to act on appearances, and to cut or stab said Carlos to prevent the accomplishment of such design, even though such cut or stab resulted in the death of said Carlos.
“In tMs connection you are further instructed that the law did not require the defendant to retreat or to wait until said Carlos actually attacked Mm, nor was the defendant required to meely gauge the force used, but that he could use any means for Ms own protection that appeared reasonably necessary under the circumstances; neither is it necessary that defendant’s danger should have bee'n real or actual, or that it should have been impending or about to fall, but if he had reasonable cause to believe, and did believe, these facts, and cut and stabbed said Carlos to prevent such expected harm, then you must acquit defendant on the ground of self-defense, even though you may believe that said Carlos did not intend to do the defendant any personal injury or bodily harm.”

If instruction numbered 4 for the State stood alone, there might be some ground to claim that it could be construed to mean that the jury must find that the danger to the defendant was in fact imminent and impending. TaMng the instructions together, however, the jury could not be misled, and must have understood from the instructions that it was sufficient under the law, to support the plea of self-defense, to find that defendant had reasonable cause to believe, and did believe, that the danger existed and was impending.

The record evidence discloses a cruel, wanton, cold-blooded murder, without a single extenuating circumstance, and the defendant might well deem himself fortunate in having escaped capital punishment for his inexcusable crime.

Finding no reversible error in the record, the judgment is affirmed.

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


author: BLAIR, C. PER CURIAM.

text:
    THE STATE v. BEN DAVIS, Appellant.
    Division Two,
    November 14, 1911.
    1. INFORMATION: Sufficient After Verdict: Rape. In this -prosecution for rape under section 4471, R. S. 1909, the State, on appellant’s motion, elected to proceed on the theory that prosecutrix was under fourteen years of age and that defendant carnally knew her. The verdict expressly finds that fact. While the safer practice is to employ separate counts in an information when it is desired to charge both offenses under section 4471, it is held that the information in this case is sufficient after verdict.
    2. VERDICT. No objection to the verdict can be well taken when that verdict explicitly affirms the defendant’s guilt of the offense for which, at defendant’s instance, the State elected to proceed, and when it is fully responsive to the issue submitted.
    3. JUROR: Opinion Formed: Challenge for Cause. During the voir dire examination one juror, in answer to the prosecuting attorney’s question, said that he had an opinion as to the age of the prosecutrix in this trial for rape, but said, in substance, that he would be governed by the evidence. Defendant’s counsel did not examine this juror in respect to the matter, nor did he challenge him for cause. There was no indication what opinion the juror held, nor was there anything indicating that defendant was hurt 'Ey the question and answer. No exception was saved to the juror’s being retained on the panel of forty; he did not serve on the trial jury, and it does not appear but that the prosecuting attorney challenged him peremptorily. The exception saved was taken to the question put by the prosecuting attorney. Under . these circumstances the point is ruled against defendant. His counsel should have challenged the juror for cause if he desired to save the point.
    4. APPEAL: Exhibits: Not in Record. The action of the trial court in overruling objections to an exhibit cannot be reviewed since the exhibit does not appear in the record brought to this court, and since, also, it does not affirmatively appear that the exhibit was read to the jury.
    5. INSTRUCTIONS: Circumstantial Evidence. Where there is direct evidence in support of every material allegation in the information no instruction on circumstantial evidence is necessary.
    6. -: Flight. An instruction as to flight is approved in form, an(j it is said by the court that the evidence of the city marshal as to his search for defendant from the 3rd to the 7th of February and his subsequent capture in another county justified the trail court in giving it.
    7. EVIDENCE: Conflict: Appearance of Witness. There was a sharp conflict in the evidence as to the age of the prosecutrix, but, in addition to her own testimony and that of others who had known her from infancy, the jury had the prosecutrix before them, and by their verdict they settled the question.
    Appeal from Jasper Circuit Court. — Hon. Henry L. Bright, Judge.
    Affirmed.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State; Alex. Z. Patterson of counsel.
   BLAIR, C.

The information in this case charges (formal parts omitted) that appellant and another “at the County of Jasper and State of Missouri, in and upon one Hattie Wyatt, then and there being a female child under the age of fourteen years, unlawfully, violently and feloniously did make an assault, and her, the said Hattie Wyatt, then and there, unlawfully, forcibly and against her will, feloniously did ravish and carnally know.”

A severance was granted and the State, being thereto required on motion of appellant, elected to proceed against appellant for carnally knowing a female child under the age of fourteen years.

The jury returned the following verdict:

“We, the jury, find the defendant, Ben Davis, guilty of rape as charged in the information, and we find that at the time of the commission of said offense, the witness, Hattie Wyatt, was under the age of fourteen years, and we assess the punishment of the defendant, Ben Davis, at imprisonment in the penitentiary for a term of five (5) years. E. A. Bourne, Foreman.”

We will not besmirch our reports by spreading upon them the details of the occurrence which resulted in appellant’s conviction. It will suffice to say that besides the direct testimony of the prosecutrix and evidence of admissions by appellant, there was testimony of eye-witnesses as to the fact of the intercourse charged and that, though the evidence as to the age of the prosecutrix was conflicting, it was sufficient, if believed, to support the finding that she was under fourteen when the offense was committed.

I. The validity of the information was not questioned before verdict, but in the motion in arrest it is alleged that it is bad by reason of duplicity. On appellant’s motion the State elected to proceed on the theory that prosecutrix was under fourteen years of age. On this theory the case was tried and the verdict expressly finds that fact. While the safer practice is to follow approved forms, and, in case it is desired to charge both offenses under section 4471, to employ separate counts for that purpose, the information is certainly sufficient after - verdict-under the circumstances disclosed by this record.

Even if it could be said that the election -which he compelled did not secure to him all to which he was entitled (which we do not decide), nevertheless if appellant desired to make further objection for duplicity, he should have made it before verdict. [State v. Fox, 148 Mo. l. c. 524; Nicholas v. State, 23 Tex. App. l. c. 326.] In view of the rule mentioned, it is unnecessary to discuss the numerous authorities holding that words importing the use of force in an information of this kind may be rejected as surplusage. [State v. Scroggs, 123 Ia. 649; State v. Newton, 44 Ia. 45; Davis v. State, 42 Tex. 226; Buchanan v. State, 41 Tex. Cr. Rep. 127; McQueary v. People, 48 Colo. 214; State v. Hann, 73 Minn. 140; Adams v. State, 114 Pac. 347; McComas v. State, 11 Mo. 116; State v. Dalton, 106 Mo. 463; State v. Meinhart, 73 Mo. l. c. 566; Bishop on Stat. Crimes (3 Ed.), sec. 486.], nor the question as to whether, under the information, a conviction for either of the offenses defined in section 4471 might not be upheld. [Lawrence’s Case, 30 Gratt. l. c. 854.]

Neither is the objection to the verdict well'taken. It explicitly affirms appellant’s guilt of the offense for which, at appellant’s instance, the State elected to proceed and is fully responsive to the issue submitted. [State v. Chumley, 67 Mo. l. c. 45.]

II.- During the examination of the talesmen on their voir dire the prosecuting attorney asked several of them if they then had an opinion as to the age of the prosecuting witness. To this inquiry the response of all save one was in the negative. One juror, Crandall, answered that he had an opinion, but said, in substance, that he would be governed by the evidence. Appellant’s counsel interposed no challenge for cause, nor did he examine the juror with respect to the matter. There is nothing to indicate what opinion the juror held, nor is there anything indicating that appellant was prejudiced by the question and answer. [State v. Snyder, 182 Mo. l. c. 506.] No exception to the juror’s being retained on the panel of forty was saved. Crandall did not serve on the trial jury, and it does not appear but that the prosecuting attorney challenged him peremptorily. The exception saved was taken' to the question put by the prosecuting attorney. • Counsel for appellant did not challenge the juror for cause as he should have done if he desired to save the point. [State v. Bronstine, 147 Mo. l. c. 531; R. S. 1909, sec. 5220.] Under these circumstances we rule the point against appellant.

III. The action of the trial court in overruling objections to “Exhibit A,” referred to in the motion for new trial, cannot be reviewed since the exhibit does not appear in the record brought to this court [State v. Hicks, 178 Mo. l. c. 445; State v. Hathaway, 115 Mo. l. c. 45; State v. Sattley, 131 Mo. l. c. 488], and since, also, it does not affirmatively appear that the exhibit was read to the jury. [State v. Dawson, 124 Mo. l. c. 421.]

IY- One of the grounds of the motion for new trial is that the court refused to instruct on circumstantial evidence and failed to properly instruct “upon all the facts and issues raised in the case.” The record does not disclose any request for any instructions in addition to those given. Further, there was direct evidence in support of every material allegation in the information and no instruction on circumstantial evidence was necessary. [State v. Armstrong, 167 Mo. l. c. 269.] The instructions given by the court fairly covered every phase of the case.

.The instruction as to fight was in approved form and the evidence of the city marshal, who testified as to his search for appellant from the 3d to the 7th of February and his subsequent capture in another county, justified the court in giving it.

Y. It is asserted that there was no evidence that prosecutrix was under fourteen years of age. In addition to her own testimony to the fact, and that of others who had known her from infancy, the jury had the prosecutrix before them. “Jurors may use their eyes as well as their ears.” [State v. Gebhardt, 219 Mo. l. c. 718.] It is true that there was a sharp conflict in the evidence on the point, but the jury, by their verdict, settled the question against appellant.

A careful examination of the record discloses no prejudicial error and the judgment is affirmed.

Boy, C., concurs.

PER CURIAM.

The foregoing opinion of Blair, C., is adopted as the opinion of the court.


text:
    THE STATE v. JOHN McCORD, Appellant.
    Division Two,
    November 14, 1911.
    1. EVIDENCE: Objections: Reasons Given. Objection was made to the proof of certain admissions of appellant oh the ground that “he was in the custody of an officer.” The reason given would not of itself have warranted the court in sustaining the objection, and the Supreme Court cannot, in fairness to the trial court, hold rulings on objections to evidence erroneous for reasons other than those given at the time.
    2. -: Sufficiency to Support Verdict. The appellant was convited of ravishing his stepdaughter, a six-year-old child. The evidence is. reviewed by the Supreme Court and held sufficient to prove the corpus delicii and to warrant the verdict. It is only in cases in which there is no substantial evidence of guilt that this court interferes on the ground of lack of evidence.
    3. INSTRUCTIONS: Circumstantial Evidence Admission of Guilt. The instructions in this ease, considered together, fully and fairly informed the jury of the law of the case, and nothing further can reasonably be required. Since there was evidence that defendant had admitted his guilt, the refusal of the trial court.to instruct on circumstantial evidence is not open to criticism.

      4. ARGUMENT: Remarks of Prosecuting Attorney: Defendant’s Failure to Call Corroborating Witnesses. The defendant was convicted of having ravished his stepdaughter, and the State introduced evidence tending to show unreasonable delay on his part in calling a physician after the time when, according to his statement, he discovered the child’s condition. In contradicting this evidence, the defendant testified that he attempted to secure a physician soon after discovering his stepdaughter’s condition, but meanwhile he disclosed that, if his testimony was true, disinterested persons must have known of that attempt. His failure to call these persons as witnesses to corroborate his own testimony was referred to in the argument by the prosecuting attorney. So far as the record shows, the prosecuting attorney merely called these facts to the jury’s attention and left it to them to draw whatever inferences they saw fit. This, it is held, was no transgression of legitimate bounds.
    Appeal from Greene Circuit Court. — Hon. C. H. Skinker, Special Judge.
    Affirmed.

      Elliott W. Major, Attorney General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) The exception as to the conversation of appellant with a policeman, to whom he had admitted the commission of the act, for the reason that appellant was under arrest and in the custody of an officer at the time, is not well taken. There were no threats nor duress used in order to elicit the admission from appellant. State v. Daly, 210 Mo. 676. (2) Instruction 2 upon circumstantial evidence was properly refused. It is only where the State relies upon circumstantial evidence alone that an instruction on such evidence should be given. State v. Crone, 209 Mo. 316; State v. Salmon, 216 Mo. 466; State v. Nerzinger, 220 Mo. 36. (3) Appellant complains that the court failed to reprimand the prosecuting attorney for the following argument: “Why didn’t the defendant bring in the fruit stand man, the telephone boy at the doctor’s office and the doctor’s wife, and show that he telephoned for the doctor?” The attorney was not outside of the record in' this argument. Appellant testified that he went to the fruit stand and telephoned for the doctor; also, that the ’phone was answered at the doctor’s home, as well as at the office on Sunday in the afternoon. No error can be predi-r cated on this argument. State v. McMullen, 191 Mo. 174; State v. Evans, 124 Mo. 397; State v. Barrington, 198 Mo. 92-; State v. Sublett, 191 Mo. 174; State v. Allen, 174 Mo. 698; State v. Hyland, 144 Mo. 313. (4) The jury settled the conflict in the evidence under proper instructions given by the court, and this court will not interfere where there is substantial evidence to support the verdict. State v. McCullough, 171 Mo. 574; State v. McGuire, 193 Mo. 227; State v. Williams, 199 Mo. 137; State v. Matthews, 202 Mo.'147.
   BLAIR, C.

Convicted of ravishing his stepdaughter, a six-year-old child, John McCord appealed to this court.

The evidence was to the effect that Dr. Kerr, a physician, called to the home of appellant on the afternoon of October. 16, 1910, examined the child, and according to his testimony and that of Dr. Lemmon, who was subsequently called in, the “vagina was torn throughout its whole length, clear into the womb, but not into the rectum except for the first inch.”

The child was then in great agony and Dr. Kerr was the first physician called to attend her, though the injuries had the appearance of having been inflicted some fourteen to sixteen hours before he arrived. There had been much loss of blood. Appellant was not at home while the physician was there. Expert -testimony disclosed that the child’s condition could have resulted from ravishment and she made complaint that it was so brought about. The victim, her mother and appellant were the only occupants of the house at the time the offense was committed, and it was shown that the latter had been drinking “considerably” (as he himself testified) on the night of the 15th, so much so that his wife removed his shoes and clothing for him in order that he might retire.

When he was arrested and (apparently before being apprised of the charge against him) asked what he had to say, appellant replied: “I am not guilty, but there is no use to talk to you people.” As he was being taken to jail immediately after his arrest, one of the officers in whose charge he was, speaking of the case in hand, said to him: “Your wife stayed with you a long time.” Appellant replied: “I have got the best woman in the world; I ought to have died when I was a baby.” The officer then said: “John, this is an awful thing, what did you do it for?” Appellant answered: “I was drunk and had no mind at all; I don’t know what I done it for.”

Appellant, in his own behalf, testified, in substance, that he knew nothing of the matter until the child’s condition was discovered by its mother some time after eight o’clock on the morning of October 16th; that he attempted to call Dr. Purselly by telephone and failed to reach him and then went about his work; that he thought the child had been criminally assaulted but did not notify the authorities, intending to find the offender himself.

There was also evidence that appellant had been convicted of selling whiskey and that his reputation for truth and veracity was bad. His wife did not testify.

I. Objection was made to the proof of certain admissions of appellant on the ground that “he was in the custody of an officer.” The reason given in the objection would not of itself have warranted the court in ruling otherwise than it did (State v. Armstrong, 203 Mo. l. c. 559; State v. Barrington, 198 Mo. l. c. 109, 110), and we cannot, in fairness to the trial court, hold rulings on objections to evidence erroneous for reasons other than those given at the time.

II. The sufficiency of the evidence is challenged. The condition of the child, considered in connection with the expert testimony as to its cause, the direct testimony of appellant that, in his opinion, the child had been ravished, coupled with the inherent improbability that her injuries could have been otherwise produced under the circumstances disclosed, constituted sufficient proof of the corpus delicti to satisfy the rule (State v. Patterson, 73 Mo. 1. c. 713; State v. Coats, 174 Mo. l. c. 417; State v. Crabtree, 170 Mo. l. c. 650; State v. Wooley, 215 Mo. l. c. 671; Wharton on Crim. Evidence [9 Ed.] secs. 324, 325; Wigmore on Evidence, secs. 2072, 2073), and appellant’s admission of guilt, considered together with the fact that there was no evidence tending to show the presence of any person of his sex, other than himself, in the house when the offense was committed and together with his remarkable conduct in faffing to call promptly a physician and notify the authorities after discovering that his stepdaughter had been ravished, indicated appellant’s guilty agency with sufficient certainty to warrant the verdict, there being ample evidence that the little girl was but six years old. It is only in cases in which there is no substantial evidence of guilt that this court interferes on the ground of lack of evidence. This case is not of that kind.

■ III. The instructions, though excepted to, need not be set out here. The first required the jury to find every substantive fact charged in the information and declared by the statute (secs. 4471, 5237, R. S. 1909) to constitute the offense and was consequently unobjectionable. [State v. Miller, 93 Mo. l. c. 268, 269; State v. Cronin, 189 Mo. l. c. 670.]

The instruction as to the weight to be given verbal statements of appellant is a rescript of one approved in State v. Tobie, 141 Mo. l. c. 561, and subsequent cases, coupled with a cautionary instruction suggested in State v. Glahn, 97 Mo. l. c. 693. The court also gave instructions as to the credibility of the witnesses, the credit to be given appellant’s testimony, the presumption of innocence and reasonable doubt and an instruction hunting the effect of the evidence of former convictions, all in form many times approved.

Appellant requested and the court refused to give an ‘ additional instruction on reasonable doubt substantially in the form of that given for the defendant in State v. Talbott, 73 Mo. l. c. 354. The identical question presented by the refusal of the instruction mentioned was settled against appellant in the case of State v. Wooley, 215 Mo. l. c. 680, 681.

In view of the fact that there was evidence that appellant had admitted his guilt, the action of the trial court in refusing to instruct on circumstantial evidence is not open to criticism. [State v. Armstrong, 167 Mo. l. c. 268, 269; State v. Robinson, 117 Mo. l. c. 663.]

The instructions, considered together, fully and fairly informed the jury as to the law of the ease, and nothing further can reasonably be required.

IV. In contradiction of the State’s evidence tending to show an unreasonable delay in summoning a physician, appellant testified that he attempted to secure one soon after discovering his stepdaughter’s condition, and disclosed that, if his testimony in that respect was true, disinterested persons must have known of that attempt. His failure to call these persons as witnesses to corroborate his own testimony was referred to in the argument by the prosecuting attorney. So far as the record shows, the prosecuting attorney merely called these facts to .the jury’s attention and left it to them to draw whatever inferences they saw fit. This was no transgression of legitimate bounds. [State v. Emory, 79 Mo. l. c. 463; State v. Parker, 172 Mo. l. c. 204.]

Y. Exceptions were saved to other rulings, but in such cases either no proper foundation for review was laid or the rulings were so patently correct. that discussion of them is unnecessary.

We have carefully examined the record and find no error which would warrant reversal. The judgment is affirmed.

Boy, C., concurs.

PER CURIAM.

The foregoing opinion of Blair, C., is adopted as the opinion of the court.


text:
    THE STATE v. SHERMAN McGOVERN, Appellant.
    Division Two,
    November 14, 1911.
    1. INFORMATION: Assault with Intent to Kill. An information, set out in the opinion, for assault with intent to kill, is held sufficient, though somewhat inartifieially drawn, to sustain a conviction under Section 4482, R. S. 1909.
    2. MOTION IN ARREST: Not Formally Overruled. ' The failure of the trial court to formally overrule the motion in arrest before sentencing appellant was of no consequence. The rendition of judgment was equivalent to overruling that motion.
    Appeal from Lewis Circuit Court. — Hon. Chas. D. Stewart, Judge.
    Affirmed.

      Elliott W. Major, Attorney-General, John M. Dawson and Campbell Cummings, Assistant Attorneys-General, for the State.
    (1) The information is valid, sufficient and adequately defines the defense, and is in the language of the statute. State v. Chandler, 24 Mo. 371; State v. Webster, 77 Mo. 566; State v. Jones, 86 Mo. 628; State v. Seward, 42 Mo. 206; State v. Hendrickson, 165 Mo. 262. The information follows the language of the statute in defining the offense, and the offense being a statutory one, that is all that is necessary. State v. Chumley, 47 Mo. 41; State v. Little, 67 Mo. 624; State v. Melton, 102 Mo. 683; State v. Pond, 191 Mo. 568; State v. Havens, 95 Mo. 167. (2) Under the record proper (and nothing but that is before this court) there is nothing for this court to do but to affirm the cause. State v. Harris, 216 Mo. 392; State v. Moore, 203 Mo. 627; State v. Goehler, 193 Mo. 183.
   BLAIR, C.

The charging part of the information upon which appellant was convicted is as follows:

“That one Sherman McGovern, on the 3d day of July, A. D. 1909, at the county of Lewis in the State of Missouri, aforesaid, then and there being, upon the body of one William Port McCracken then and there being, feloniously, on purpose and willfully, with deadly weapons, to wit: with a certain club or cudgel of about the length of two and one-half feet and the thickness of two inches, and with a certain pistol loaded with powder and leaden balls, which he,- the said Sherman McGovern, then and there held, did, then and there, make an assault with the intent him, the said William Port McCracken, then and there, to kill, contrary to the form of the statutes in such eases made and provided and against the peace and dignity of the State.”

While this information is somewhat inartifieially drawn, it is sufficient to sustain a conviction under section 4482, Revised Statutes 1909. The reasoning which leads to this conclusion can be found in eases previously decided. [State v. Seward, 42 Mo. 206; State v. Temple, 194 Mo. l. c. 234; State v. Hendrickson, 165 Mo. 262; State v. McDonald, 67 Mo. 13; State v. Hottman, 196 Mo. l. c. 122; State v. Myers, 198 Mo. l. c. 258.]

The failure of the trial court to formally overrule the motion in arrest before sentencing appellant was of no consequence. The rendition of the judgment was equivalent to overruling that motion. [State v. Jackson, 221 Mo. l. c. 490; State v. Eisenhour, 132 Mo. 149.]

No bill of exceptions was filed, and as an examination of the record proper discloses no prejudicial error, the judgment is affirmed.

Roy, C., concurs.

PER CURIAM.

The foregoing opinion of Blair, C., is adopted as the opinion of the court.

All the judges concur.


author: ROY, C. PER CURIAM.

text:
    THE STATE v. CALVIN BRANCH, Appellant.
    Division Two,
    November 14, 1911.
    1. INSTRUCTIONS: Accessory Before the Fact: “Said Felony." Defendant was convicted of being an accessory before the fact to the crime of false registration alleged to have been committed by Percy Everson. An instruction is not erroneous which set out every fact necessary to be found by the jury in order to constitute false registration by Everson, and told the jury that if they should find those facts then Everson was guilty of a felony, and that if they further found that defendant procured, etc., “said Percy Everson to do or commit the said felony aforesaid,” they would find defendant guilty. Such instruction did not assume any controverted facts. It did not, by the use of the words “said felony,” assume that Everson was guilty of the felony of false registration.
    2. -: -: Guilt or Innocence of Persons Other Than Defendant: Evidence. An instruction set out in the opinion is held to be proper under the evidence in this ease.
    Appeal from St. Louis City Circuit Court. — Hon. Geo. H. Shields, Judge.
    Affirmed,

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
   ROY, C.

In July, 1909, the defendant was separately tried in the St. Louis City Circuit Court on an indictment charging him and James Robinson and Milton Holland with being accessories before the fact to the crime of false registration alleged to have been committed by Percy Everson.

It was charged that Percy Everson registered on February 18, 1909, in the 6th precinct of the third ward under a name not his own, to-wit, Brown Smith, and that the other defendants were accessories before the fact.

Defendant was convicted and sentenced to two and a half years in the penitentiary, and has appealed.

On February 18, 1909, there was being held in St. Louis a general registration of voters. The evidence tends to show that a crowd of about twenty-one persons, mostly, if not all, negroes, gathered on the morning of that day at Sixteenth and Morgan streets, ate wienerwursts and drank whiskey, and then proceeded to register in as many precincts, and under as many names as possible, changing clothes between times, and using many other precautions to avoid detection. Everson was so persistent that though only seventeen years old and a resident of another precinct, he registered twice in the sixth precinct of the third ward, once in his own name, and once in the name of Brown Smith.

The evidence tends to show that defendant and James Robinson led the way to a saloon where the defendant treated the crowd and told them they were to do some registering and that if they got into trouble not to be uneasy, as they would be gotten out on bonds and nothing would be done to them.

About six of the “gang,” some of whom were involved in the prosecutions for false registration, testified for the State. The defendant admitted being with the crowd above mentioned at times during the day, but denied being present or aiding in any way in the commission of the offense by Percy Everson.

The evidence showed the commission of various offenses by the “gang” against the registration laws, and also showed that some members of the “gang” who testified against the defendant had been charged with perjury in connection with the prosecutions, and _ some of them convicted.

Instruction numbered 3 is necessarily very long, and for that reason is not set out at length. - In substance it set out each and every fact necessary to be found by the jury in order to constitute false registration by Percy Everson, and told the jury that if they should find those facts then Everson was guilty of a felony, and that if they further found that defendant “did unlawfully, intentionally and fraudulently procure, aid, counsel, solicit or advise said Percy Everson to do or commit the said felony aforesaid,” they would find defendant guilty.

Instruction numbered 7 was as follows:

“The jury are instructed that in making up your verdict it is your duty to consider exclusively the question of the guilt or innocence of this defendant under the evidence and the law as declared in these instructions, without regard to the question of the probable guilt or innocence of any other person of any crime, except that you are required to consider the probability of the guilt of any witness testifying herein, as disclosed in evidence, of criminal connection with the offense charged, or his guilt of any other criminal offense, as tending to affect the .credibility of such witness and the weight to be given to his testimony.”

I. Instruction numbered 3 did not assume any controvered facts,, and did not, by the use of the words “said felony,” assume that Percy Everson was guilty of the felony of false registration. This point being fully covered by the opinion in the Robinson case, 236 Mo. 712.

II. Instruction numbered 7 was undoubtedly given for the benefit of the defendant. About a half dozen of the “gang” with which he is charged with being associated, appeared on the stand against the defendant.

Several offenses by the “gang” were in evidence. It was also in evidence that several of the “gang” who were state witnesses had been charged with the crime of perjury in connection, with those election frauds. The court evidently intended to be understood as telling the jury that they should confine themselves to the consideration of the offense charged in. the indictment and not undertake to determine the merits of the other offenses in evidence, only so far as they might affect the credibility of the witnesses.

If there had been no evidence of any other offense than that charged in the indictment, of course instruction numbered 7 would have been error. But, reading instructions numbered 3 and 7 together, and by their very terms they depend on each other for explanation, the jury clearly understood that they must find the guilt of Everson as a condition precedent to the guilt of the defendant.

No brief has been filed by the defendant and we have gone through the record and find no reversible error, and the judgment is therefore affirmed.

Blair, C., having been of counsel, not sitting.

PER CURIAM.

The foregoing opinion of Roy, C., is hereby adopted as the opinion of the court.


author: ROY, C. PEE CURIAM.

text:
    THE STATE v. CALVIN BRANCH, Appellant.
    Division Two,
    November 14, 1911.
    This case is decided upon the authority of State v. Branch, ante, p. 250.
    Appeal from St. Louis City Circuit Court. — Hon. Geo. H. Shields, Judge.
    Affirmed.
    , Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
   ROY, C.

On June 22, 1909, the defendant- was put upon his separate trial in the circuit court of the City of St. Louis, on an indictment charging that one Percy. Everson, on February 18, 1909, at a general registration in St. Louis committed the felony of false registration by registering in the sixth precinct of the third ward, knowing that he was not a resident of that precinct, and that the defendants Calvin Branch, James Robinson and Milton Holland were accessories before the fact to the offense.

The defendant was convicted and sentenced to four years in the penitentiary, and appeals.

The only difference between this case and the other against the same defendant decided at the same time herewith is that in that case defendant was charged with being accessory to. the offense of Percy Everson in registering under a name not his own; while in this case he is charged with being accessory to the offense of Percy Everson in registering in his own name of Percy Everson in a precinct in which he did not reside. The evidence and instructions so far as necessary to determine the ease are the same.

Not having the assistance of any brief or oral argument on the part of defendant, we have carefully read the record and find nothing therein to distinguish the merits of this case from the other case against this defendant decided at the same time with this one, and the judgment is affirmed.

Blair, C., having been of counsel, not sitting.

PEE CURIAM.

The foregoing opinion of Eoy, C., is adopted as the opinion of the court.