author: FOX, J.

text:
    THE STATE v. CLIFFORD WOODWARD, Appellant.
    Division Two,
    December 12, 1905.
    1. MURDER: Defective Information. An information for murder which alleges that defendant “unlawfully, wilfully, feloniously, premeditatedly, on purpose and of his malice aforethought, did strike and heat” deceased, “at and upon the right side of the head of” deceased, “with the club aforesaid, and inflicting and giving to” deceased, “in and upon the right side of the head of” deceased, “one mortal wound,” etc., is insufficient, in that it fails to allege that the homicidal act was done feloniously, and the wounding is in no way connected with the felonious assault by use of the words “then and there” or their equivalents.
    2. PRACTICE: Leading Questions. ,The asking of leading questions in the examination of witnesses is a matter within the sound discretion of the trial court.
    3. REPUTATION OF DECEASED: Put in Issue by Defendant. Where defendant, in the cross-examination of a witness for the State, undertook to elicit testimony reflecting on the reputation of deceased, it was not error to permit the State to rebut such testimony by evidence of his good reputation.
    4. EVIDENCE: Immaterial. Evidence of conversations and acts between a brother of defendant and one of the witnesses, which took place in the absence of defendant, and which did not tend to prove or disprove any ofl the issues presented at the trial, should have been excluded.
    5. RES GESTAE. Evidence tending to show that a brother of defendant, who was jointly indicted with him, had,' an open knife during the fatal difficulty, and that another witness, who was present at the difficulty, was cut on the knuckles, was admissible as a part of the res gestae.
    6. DEFENDANT AS WITNESS: Character. When defendant testifies as a witness, it is competent for the State to attack his general moral character.
    7. PRIOR CONVICTION: How Shown. When defendant testifies in his own behalf, evidence of his conviction of a previous offense may be shown for the purpose of affecting his credibility. But if defendant denies such previous conviction, it must be shown by competent evidence, that is, by the record of the court wherei such conviction was had.

      8. INSTRUCTION: Deliberation. Where an instruction on murder in the second degree employs the terms “without deliberation,” it is- proper to define such terms.
    9. -: Evidence: Defense of Brother. If there is evidence tending to show that defendant was acting in defense of both himself and his brother, an instruction that he had the right to defend himself or his brother is not error.
    10. DRUNKENNESS: No Excuse for Crime. Voluntary drunkenness furnishes no excuse or justification for the commission of crime.
    Appeal from Pemiscot Circuit Court. — Hon. Henry G. Riley, Judge.
    Reversed and remanded.

      Duncan & Bragg, J. 8. Gossom and B. A. McKay for appellant.
    (1) The court should have sustained appellant’s objection to the leading questions propounded to witness Curry. McKelvey, Ev., sec. 236 ; State v. Keith, 53 Mo. App. 383. (2) The court committed reversible error in permitting the State to prove the good reputation of the deceased when the defense had not put the reputation of deceased in issue by offering evidence of his bad reputation. McKelvey, Ev., sec. 120. The. defense can only attack the reputation of deceased by showing his general character or reputation, which was never done in this case. Kelley’s Criminal Law and Practice, sec. 249; State v. Elkins, 63 Mo. 1591. (3) The court erred in permitting the State to show the bad reputation of defendant when he had not offered evidence of his good reputation. (4) It was error for the court to permit witness Bailey to testify to the conviction of defendant in his justice court of former offenses committed by defendant. This testimony should have been excluded, as it was not the proper way to prove conviction on a former charge and was greatly prejudicial to defendant. R. S. 1899, sec. 4680-, State v. Creason, 38 Mo. 372; 3 Greenleaf on Ev., sec. 25; State v. Kenney, 177 Mo. 117. (5) There was no testimony authorizing the instruction as to defense of defendant’s brother. Defendant relied upon his own necessary self-defense as a defense in this cause, and at no time was there any testimony offered which would authorize the above instruction.. This instruction was greatly prejudicial to appellant, as it diverted the minds of the jury from the real defense. State v. Thompson, 83 Mo. 260'; State v. Degonia, 69 Mo. 485; State v. Tice, 90 Mo. 112; State v. Herrell, 97 Mo. 105. (6) The information is insufficient in law and does not charge an offense against this defendant, in this, to-wit, because the information does not charge the wounding and killing to have been felonious, wilful, premeditatedly and of malice aforethought. State v. Williams, 184 Mo. 261; State v. Rector, 126 Mo: 329; State v. Ferguson, 162 Mo. 673; State v. Green, 111 Mo. 585; State v. Fairlamb, 121 Mo. 154; State v. Clayton, 100 Mo. 516; State v. Herrell, 97 Mo. 105; State v. Feaster, 25 Mo. 324.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The trial court, in the exercise of its discretion, had the right to allow the State’s attorney to ask leading questions. State v. Napper, 141 Mo. 401; State v. Whalen, 148 Mo. 290-. (2) Defendant insists that error occurred in permitting the State to prove the good reputation that deceased enjoyed as a peaceable and orderly man. Having opened up the subject and in this way attacked the general reputation of deceased, the State then had the right to prove that his reputation was good. (3) It was competent for the State to attack the reputation of defendant and his brother George for morality, as both of them had testified in this case. State v. Evans, 158 Mo. 609; State v. May, 142 Mo. 135. In cross-examining these character witnesses, the defendant brought out from them the fact that defendant and his brother had bad reputations, for peace and good order. Certainly defendant cannot complain of evidence that he himself elicited. It was his privilege to descend into particularities, and he did so at his peril. State v. Harney, 168 Mo. 197; State v. Palmer, 88 Mo. 572. (4) The information, which was duly verified, is sufficient in form and substance. The cases cited by appellant do' not hold that this information is insufficient; in fact, they hold the contrary. State v. Williams, 184 Mo. 261; State v. Terry, 172 Mo. 213.
   FOX, J.

This cause is here on appeal from a judgment of conviction in the circuit court of Pemiscot county of murder in the second degree. This prosecution is based upon an information filed by the prosecuting attorney of Pemiscot county charging George and Clifford Woodward with murder in the second degree. The correctness and validity of the information being challenged, it is well to reproduce it. It is as follows:

“In the circuit court of Pemiscot county, Missouri, To February term, 1904.

“State of Missouri, County of Pemiscot, ss.

“State of Missouri

v.

“George Woodward and Clifford Woodward.

“L. L. Collins, prosecuting attorney, within and for the county of Pemiscot and State of Missouri, upon his official oath informs the court, that George Woodward and Clifford Woodward, late of the county of Pemiscot and State of Missouri, on the 16th day of January, 1904, at the county of Pemiscot and State of Missouri, did then and there in and upon the body of one Ed. Pedigo, then and there being, unlawfully, wilfully, feloniously, premeditatedly, on purpose and of their malice aforethought make an assault, and with a certain dangerous and deadly weapon, to-wit, a club, which said club was then and there of the length of four feet, of the breadth of two inches and of the weight of ten pounds and which said club they, the said George Woodward and Clifford Woodward, then and there in their hands had and held, they, the said George Woodward and Clifford Woodward, did then and there unlawfully, wilfully, feloniously, premeditatedly, on purpose and of their malice aforethought strike and beat him, the said Ed. Pedigo at and upon the right side of the head of him the said Ed. Pedigo, with the club aforesaid, and inflicting on and giving to him, the said Ed. Pedigo, in and upon the right side of the head of him, the said Ed. Pedigo, one mortal wound, which said mortal wound was of the length of four inches and of the breadth of two inches, of which said mortal wound the said Ed. Pedigo from the said 16th day of January, 1904, the year aforesaid, in the county aforesaid, until the 18th day of January, in the year aforesaid, in the county aforesaid, did languish, and languishing did live, on which said 18th day of January in the year aforesaid, the said Ed. Pedigo, in the county and State aforesaid, of the mortal wound aforesaid, died; and so L. L. Collins, prosecuting attorney as aforesaid, upon his official oath as aforesaid, doth say that they, the said George Woodward and Clifford Woodward, him, the said Ed. Pedigo, in the manner and by the means aforesaid, wilfully, unlawfully, feloniously, premeditatedly, on purpose and of their malice aforethought did kill and murder, against the peace and dignity of the State.

“ L. L. Collins,

“Prosecuting Attorney.

“L. L. Collins, prosecuting attorney, within and for Pemiscot county, Missouri, being duly sworn upon his oath says that the facts stated in the above and foregoing information are true according to his best knowledge, information and belief.

“L. L. Collins.

“Subscribed and sworn to before me this 19th day of January, 1904. (L. S.)

“ J. W. Green,

“Clerk of the Circuit Court.

“Harvey E. Averill, D. C.”

Upon the trial the State’s evidence tended to show that deceased was the proprietor of a pool hall, on one side of which he had a lunch counter.' This pool hall was situated in the rear of George Myrick’s. saloon in the town of Steele, in Pemiscot county; and between the saloon and the pool room was a small room called the “stove room.” In the rear and to the side of the pool room was a small back yard, known as the bull pen. There was evidence to the effect that deceased and defendant had trouble on two former occasions, once at another pool room in Steele, and once when defendant and the Moore boy were about to have a fight during a charivari. When deceased prevented this fight, the defendant threatened deceased; this was some two weeks before the final difficulty. Deceased was sitting in the stove room about seven o’clock on the night of the difficulty, talking to some one, when defendant came into the saloon. There was evidence to show that one, perhaps both of them, had been drinking some, but neither one was intoxicated. As he came in the front door, defendant said to Charles Johnson, the bartender, “Is there any God-damn-son-of-bitch in here that wants to fight?” To this remark, the bartender replied that he did not see any son-of-a-bitch in there, that he might go into the back room. Defendant walked straight into the stove room, where he at once engaged in a controversy with deceased about some games of pool that deceased said he had played and had not paid for; deceased asked him not to play any more till he had paid what he owed. Defendant said that he was going to play anyhow, and started into the pool room. A short time prior to this deceased and de-. fendant’s brother, George Woodward, had some trouble in the pool room over some eggs that George had ordered, hut refused to pay for. About the time defendant came into the pool room, George Woodward again appeared, but no one seem to know which way he came from. Defendant and deceased' caught hold of each other and began pushing, when defendant exclaimed, “If you don’t turn me loose, I will kill you.’’ One witness testified that defendant said that he would not fight Pedigo (deceased) in his own house, but that he could whip any son-of-a-bitch in there. After a mild fight in the pool room, both combatants went out the side door into the bull pen, George Woodward going out with them. As soon as the ground was reached, defendant ran up against deceased, and deceased- pushed him back. George Woodward then ran up and struck at deceased twice, hitting him once on the neck or shoulder. Defendant was then heard to say, “I will kill the Goddamn-son-of-a-bitch.” Defendant then picked up a club and dealt deceased a heavy blow on the side of the head; the lick was heard by persons in the pool room and in the saloon. Although deceased had his hand in his pocket at the time he was struck, no weapon was found on his person, nor on the ground near him. The only pistol that deceased ever had was one that he had borrowed from defendant some days before, and it was found in a small box behind the lunch counter after this trouble. Defendant hurriedly left the scene of the difficulty, and made his escape that night; but in passing an acquaintance on the road he said that he had killed a God-damn-son-of-a-bitch,’ but. that he had to do it. Deputy sheriff Green testified that he hunted for defendant a month or two before he found him; that defendant finally came to town and gave bond. The evidence further tended to show that the deceased enjoyed a good reputation as a law-abiding man, but that the reputation of defendant and his brother George was bad. Prom the effects of this blow on the head, deceased soon became unconscious; he lingered from Saturday night till Monday morning, when he died.

On behalf of the defendant, the evidence tended to show that he was nineteen years old, and deceased thirty-one; and there was considerable difference in their weight. That he and deceased were good friends, and only had one difficulty, and that was some two weeks before at a charivari, when deceased interfered and prevented defendant from fighting a son of M. Moore. That defendant had loaned his pistol to deceased some days before, and saw deceased with his pistol in his hand about one hour before the difficulty, when deceased was aiding the town marshal in taking two drunken men to the city jail. That when defendant came into the saloon, he walked straight to the stove-room, where he met deceased and said, “Ain’t we having a good time to-night, Ed?” That he referred to the fact that deceased had recently assisted in arresting two disorderly men. That deceased replied, “I don’t want you to talk to me.” Defendant asked why, and deceased said he had done him harm and that he was going to whip defendant. With that deceased took hold of defendant by the breast and shoved him back into the pool room. Defendant then sáid, “No use to whip me in here in your own house, you got all the advantage, you are a big man, I am nothing but a boy.” To which deceased replied, “That don’t matter a damn, I am man enough to whip you, and I am going to do it; we will go out to the bull pen, there neither one of us has the advantage of the law.” With that, deceased took defendant by the arm, shoved defendant out and shut the door behind. Outside, deceased began cursing defendant and striking him, when defendant said, “Ed, you are mad.” To which deceased replied, “Yes, by God, I am mad.” After striking defendant on the neck and knocking him off of the plank walk twice, George Woodward made a lick or two at deceased. Defendant then raised up and struck deceased on the head with a club. M. Moore was outside and trying to separate the parties; and George Woodward had insisted that there was no use having any trouble, as they were all good friends; but that deeeased said, “I can whip both of you God-damn-sons-of-bitches.” At the time of striking, defendant said that deceased had his right hand in his pocket. The father and mother of defendant testified to seeing a bruised place on his neck a little after the difficulty that night.

At the close of the evidence the court instructed the jury upon murder of the second and manslaughter of the fourth degrees, upon reasonable doubt and self-defense. The complaints of appellant as to instructions will be given attention in the course of the opinion. The cause was submitted to the jury and they returned a verdict of guilty of murder of the second degree, assessing defendant’s punishment at imprisonment in the penitentiary for a term of ten years. Judgment of sentence in accordance with the verdict was entered of record. Defendant’s motions for new trial and in arrest of judgment being overruled, he in due time and form prosecuted his appeal to this court, and the record is now before us for review.

OPINION.

Numerous error’s are assigned as a basis for the reversal of this judgment. We will give the complaints of appellant such consideration as their importance and the administration of justice demand. The most vital proposition with which we are confronted in this cause is the challenge made by the appellant to the sufficiency of the information charging the offense of which the defendant was convicted. It is fundamental that the pleading in a criminal case, charging murder, must charge that the homicidal act itself was done feloniously. In other words, that the mortal wound inflicted must be charged to have been feloniously done, that is, the fatal stroke must he either expressly charged as being done feloniously, premeditatedly, etc., or the assault must be so charged and the technical words following the term deliberately and malice aforethought, used in charging the assault, must be connected with the charge of the fatal stroke or wounding, by the words “then and there” or equivalent terms. In State v. Feaster, 25 Mo. 324, the indictment was based upon a section of the statute of 1845, which provided: “If any person shall be maimed, wounded, or disfigured, or receive great bodily harm, or his life be endangered by the act, procurement or culpable negligence of another, in cases and under circumstances which would constitute murder or manslaughter if death had ensued, the person by whose act, procurement or negligence such injury or danger of life shall be occasioned, shall, in cases not otherwise provided for, be punished,” etc. The charge in that case was that “Elbert Feaster, with force and arms, did then and there feloniously make an assault on the body of one Carrol Harper with a large stick, of the length of four feet, and the thickness of four inches, which stick he, the said Elbert Feaster, then and there held in both his hands, and with the stick aforesaid did then and there inflict on the body of the said Carrol Harper great bodily harm, under such circumstances which would have constituted manslaughter if death had ensued, contrary,” etc. It will be observed in that indictment that the pleader failed to charge that the infliction of the great bodily harm was done feloniously. Judge Ryland, speaking for this court, whose views were concurred in by Judge Scott, said: “The offense under this section is liable to the punishment of imprisonment in the penitentiary, and consequently under our law is a felony; for all offenses whose punishment may be by confinement in the State penitentiary are declared by the statute to be felonious. The offense under this section is not the assault; it is the great bodily harm inflicted. Now it is the well-settled law that in indictments for felonies the act charged, which constitutes the offense, must he alleged to have been done feloniously. In this indictment now under consideration the pleader has omitted to charge that the act done which makes the offense was done feloniously, and it is not enough to aver that the assault was made feloniously. This is a fatal objection.” In State v. Herrell, 97 Mo. 105, defendant Herrell was thus charged in the indictment with murder: “Did, on or about the seventh day of October, A. D., 1884, at said county of Taney, and State aforesaid, in and upon one Amos Ring, then and there being unlawfully, wilfully, feloniously, deliberately, premeditatedly, on purpose, and of his malice aforethought, make an assault, and with a certain pistol commonly called a revolver, then and there being loaded and charged with gunpowder and leaden bullets, and which said pistol was then and there held in the right hand of him, the said Newton W. Herrell, at, to and against, and in and upon him, the said Amos Ring, did unlawfully, wilfully, feloniously, deliberately, premeditatedly, on purpose, and of bis malice aforethought, shoot off and discharge, and by means and force of the gunpo.wder and leaden balls aforesaid, did give to him, the said Amos Ring, two wounds, which said wounds were then and there mortal wounds, one of said wounds being on the left side of the body of him, the said Amos Ring, near the fifth rib, penetrating and entering the body of him, the said Amos Ring, near said fifth rib, said wound being of the depth of six inches, and width of one-half inch, and the other said mortal wound being on the top of the head of him, the said Amos Ring, and said, wound being then and there a mortal wound, being in depth about six inches, and width of one-half inch, of which said mortal wounds, he, the said Amos Ring, did then and. there, on said seventh day of October, 1884, at the county of Taney and.State of Missouri, instantly die: And so the grand jurors, aforesaid, do say that the said Newton Herrell, the said Amos Ring, in manner and form, and by the means aforesaid, feloniously, deliberately, premeditatedly, on purpose and of his malice aforethought, did kill and murder, against the peace and dignity of the State of Missouri.” It will be observed in that indictment that all of the technical words were used in charging the assault, then followed the charge that “by the means and force of the gunpowder and leaden balls aforesaid, did give to him, the said Amos Ring, two wounds, which said wounds were then and there mortal wounds,” etc., yet this indictment was held insufficient, on the ground-that it failed to charge that the infliction of the mortal wound was felonious. Sherwood, J., speaking for this court, said of this indictment: “The indictment was insufficient in that it failed to charge that the homicidal act itself was done feloniously, etc. The failure thus to charge was not supplied by the allegation that the assault was made feloniously, nor by the concluding words of the indictment, nor by anything else therein contained. This position is abundantly sustained by authority.”

In State v. Green, 111 Mo. 585, this court had in judgment the sufficiency of the indictment in that cause for murder, and in discussing the essential requisites of an indictment for so grave an offense, Gantt, J., speaking for the court, said: “This court in State v. Blan, 69 Mo. 317, held that it was not the purpose or design of our statute of jeofails to change our entire system of criminal practice, and said ‘the ancient forms of proceeding have been retained with specific modifications.’ It is still necessary to allege every substantive fact which the State must prove, in order that the defendant may know ‘the nature and cause of the accusation’ against him. Measured by all the approved precedents, this indictment is insufficient, in that it fails to aver, after alleging that the defendant shot and discharged the pistol at Beaumont, ‘that, with the bullet so shot out of the said pistol, the defendant, then and there feloniously, wilfully, deliberately, premeditatedly, and of his malice aforethought did strike, penetrate and wound the said Joseph Beaumont, in and upon the head of him the said Beaumont,’ etc.”

In the recent case of State v. Williams, 184 Mo. 261, the cases herein referred to were all cited approvingly, and it was said in that case, in treating of the essential feature of an indictment for murder, that, “In all cases where the common law prevails it has always been held necessary to allege the striking or wounding to have been done feloniously, premeditatedly and of malice aforethought. It is not necessary to repeat those words immediately before the charge of striking or wounding where the technical words feloniously, premeditatedly, deliberately and of malice aforethought have been used in charging the assault and the words ‘then and there’ connect these words with the charge of the fatal stroke or wounding, for in such cases the words feloniously, etc., will run through the subsequent allegations and thus connect them with the mortal stroke to which they are essential. [State v. Herrell, 97 Mo. 108 and 109.] But where, as in this case, the words ‘then and there’ are omitted, it has been held the indictment is bad. [State v. Feaster, 25 Mo. 324; State v. Herrell, 97 Mo. 105.] And so in State v. Arnewine, 126 Mo. 567, the charge was, ‘did make an assault, and with a certain pistol, commonly called a revolver, loaded and charged with gunpowder and leaden balls, which he, the said William Arnewine, then and there wilfully, feloniously, deliberately, premeditatedly, on purpose, and of his malice aforethought, did shoot and discharge at, to, against, in and upon the body of him, the. said George Keeton, giving to him, the said George Keeton, then and there, with the pistol loaded and charged, had and held, shot off and discharged as aforesaid, in and upon the left side of the abdomen, him, the said George Keeton, one mortal wound,’ etc. It was held sufficient as the technical words described the shooting and the wounding, but in that ease the indictment was barely held good and by no means approved as good pleading.” In State v. Johnson, ante, 177, the rules of criminal pleading as announced in the case of State v. Williams were unqualifiedly approved.

Measured by the rules of pleading in criminal cases, as well as by all the approved precedents, the information in this cause now in judgment before us must be held insufficient, in that it fails to allege that the homicidal act, the fatal stroke, was done feloniously, wilfully, deliberately, premeditatedly, and of his malice aforethought; nor is the wounding in any way connected with the previous allegations of those essential terms in charging the assault, by the use of the words “then and there” or equivalent terms. The charge in this information may thus be briefly stated: “That the defendant unlawfully, wilfully, feloniously, premeditatedly, on purpose and of his malice aforethought, did strike and beat him, the said Ed. Pedigo, at and upon the right side of the head of him, the said Ed. Pedigo, with the club aforesaid, and inflicting and giving to him, the said Ed. Pedigo, in and on the right side of the head of him, the said Ed. Pedigo, one mortal wound,” etc. We might stop here to inquire with what instrument was the mortal wound given. It correctly charges the manner of the assault by striking and beating the said Ed. Pedigo at and upon the right side of his head with the club aforesaid; then follows the charge connected by the conjunction “and” inflicting and giving to said Pedigo one mortal wound.

It is left to conjecture under the form of this charge, whether the mortal wound was inflicted and given by the club, or whether, in addition to beating and striking him with the club aforesaid, he also, by some other means, inflicted and gave the mortal wound. If we were permitted to indulge in presumptions, it might he said that the infliction and giving of the mortal wound charged in this information was the result of the use of the club in the manner alleged, but under the well-settled rules of law in respect to pleading in criminal cases, this cannot be done. It is apparent that this information does not charge the infliction or giving of the wound with the club with which the assault is charged to have been made; it simply charges two separate and distinct acts, that is, an assault and the manner of making it and the infliction of wounds; there is an entire absence of any allegations, following the charge of the manner of making the assault, that “then and there with the club aforesaid, and by the means aforesaid, inflicted and gave to the deceased the mortal wounds,” etc. “In an indictment or information nothing material shall be taken by intendment or implication.” [2 Hawk. P. C., chap. 25, p. 324; State v. Meyers, 99 Mo. 107.] As was said in State v. Green, supra, “An indictment or information for murder under our practice must contain all the essential averments that were required at common law. Our statute of jeofails has not dispensed with any of the material averments which were necessary at common law.” In 3 Chitty’s Criminal Law, star pages 752, 753 and 754, it is laid down that it is always necessary in charging a murder by shooting to use the words “did strike and wound” and that “the striking and wounding was done feloniously, wilfully, premeditatedly, and with malice aforethought.” Had this information, after charging the beating and striking of the deceased with the club as charged, simply added, “then and there, with the club aforesaid, in the manner and by the means aforesaid, did wilfully, feloniously, premeditatedly, and of his malice aforethought, give to the deceased certain mortal wounds,” etc., it would find support in all of the well-considered cases by this court, but in its present form it has no precedent, either in the text-books or. adjudicated cases, upon which, to rest its sufficiency.

The conclusion reached upon this question as to the sufficiency of the information, renders it unnecessary to discuss at length the other assignment of errors on the part of the appellant. As this case must be retried in the event of the filing of a proper information, it is not inappropriate to at least briefly indicate our views upon some of the questions presented.

Counsel for appellant insist that the court erred in refusing to sustain appellant’s objectipn to leading questions propounded to the witness Arthur Curry. It is sufficient to say of this complaint that the propounding of leading questions in the manner of examining witnesses is always a matter within the sound discretion of the trial court. In the trial of causes it frequently occurs that one side or the other must introduce unwilling or unfriendly witnesses, and in the examination of such witnesses the court in the exercise of a proper discretion may permit the asking of leading questions and thereby commit no error. [State v. Napper, 141 Mo. 401.]

It is insisted that the court erred in permitting the State to prove the good reputation of the deceased. This testimony under the rules of evidence could only be admissible to rebut testimony elicited by the appellant affecting the reputation of the deceased. Unless the reputation of the deceased was put in issue by the appellant, then this testimony was clearly inadmissible. The record in this cause discloses that the defendant, upon cross-examination of witness Charles Johnson, for the State, did undertake to elicit testimony which reflected upon the good reputation of the deceased. Defendant having opened up the subject of the good reputation of the deceased, it was not error to permit the State to rebut any testimony offered by the defendant upon that subject. However, upon a retrial of this cause, unless the reputation of the deceased is put in issue, the court should exclude any evidence as to his general reputation.

The record discloses some testimony of conversations and acts between George, the brother of the defendant, and one of the witnesses, in respect to cooking some eggs, in the restaurant of deceased, in the absence of the defendant. "We are of the opinion that this testimony should be excluded. "We are unable to see how it tends to prove or disprove any of the issues presented by the information against the defendant on trial. It is urged by appellant that the admission of testimony tending to show that a brother of the defendant, George, who is jointly indicted with him, had an open knife during the fatal difficulty, and that a Mr. Moore, who was present at the difficulty, was cut on the knuckle. It will suffice to say upon this contention that. every thing occurring contemporaneously with the main difficulty was a part of the res gestae, and there was no error in the admission of such evidence.

It is also insisted that the court erred in the admission of testimony as to the general reputation of the defendant and his brother George for morality, and also in the admission of testimony tending to show that defendant had previously been convicted of a criminal offense before a justice of the peace. It was ruled by this court in State v. May, 142 Mo. l. c. 150, that the defendants having offered themselves as witnesses, it was competent under our rulings to attack their general moral character. [State v. Grant, 79 Mo. 113, and cases cited.] A similar ruling was made in State v. Evans, 158 Mo. l. c. 609. As to the evidence of prior convictions of criminal offenses, defendant having testified in his own behalf, it was competent to show that fact in a legitimate way, in order to affect his credibility; however, it should be shown by competent evidence. If the prior convictions were denied by the defendant, the record of the justice of the peace, or the court wherein such convictions were had, should be identified, and introduced in evidence. It should not be left to any witness to merely say that he had been convicted. [State v. Blitz, 171 Mo. 530; State v. Thornhill, 174 Mo. 364; State v. Spivey, 191 Mo. 87.]

There is also some complaint in respect to the hypothetical questions propounded to Dr. Conrad. It is sufficient to say that the rules of law in relation to hypothetical questions are well settled, and as this case is to be retried, we indulge the presumption that the trial court will have such question conform to the well-settled rules of evidence upon that subject.

Complaint is also urged that the court improperly instructed the jury. It is sufficient to say of this complaint of error that it is without merit. The instruction upon murder of the second degree required the jury to find every essential element of that offense, and adding to the instruction, “without deliberation,” did not render it objectionable; however, if the court, upon another trial, should use the terms in the instruction, “without deliberation,” it would be appropriate to properly define “deliberation.” Instructing the jury that defendant had the right to defend himself or his brother, did not constitute error. We are unable to conceive, if defendant was justified, how the mere fact of extending his right of self-defense to that of his brother, could in any way prejudice his rights. If there is no testimony tending to show that he was acting in defense of both himself and his brother, then the instruction should not be given. Voluntary drunkenness furnishes no excuse or justification for the commission of crime, and if there is testimony upon that subject, it is not error for the court to so declare the law.

The record in this cause is similar to the one in the case of State v. Spivey, supra, abounding with complaints on part of appellant of the action and conduct of the prosecuting attorney during the progress of the trial of this cause. This case doubtless will be retried, and we deem it unnecessary to burden this opinion with a reproduction of what was said in the Spivey case. While it is the duty of the prosecuting officer to diligently and earnestly prosecute all offenders charged with the commission of crime, it is equally consistent with his duty to confine himself within the record, and the trial court should insist and see to it that such insistence is heeded, that no remarks, either in the opening of the cause or during its progress, be made by the prosecuting attorney which in any way would endanger a calm and dispassionate consideration of the evidence by the jury.

We have thus given expression to our views upon the record before us, which results in the conclusion that the judgment should be reversed and the cause remanded in order that a new information or indictment may be preferred and a trial had in accordance with the provisions of law.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    THE STATE v. IKE SAKOWSKI, Appellant.
    Division Two,
    December 12, 1905.
    1. RECEIVING STOLEN GOODS: Indictment: Intent. Under the statute (see. 1916, R. S. 1899), it is not necessary that an indictment for receiving stolen goods, knowing them to have been stolen, allege that defendant received the goods with intent to deprive the owner thereof or to aid the thief.
    2. -: -: Goods Stolen from Particular Person: Surplus-age. The allegation, in an indictment for receiving stolen . goods, knowing them to have been stolen, that defendant knew the goods were stolen “from the St. Louis & San Francisco Railroad Company,” was unnecessary and immaterial; and being so, a failure to prove such knowledge on the part of the defendant, did not entitle him to an acquittal.

      3. -: -: Description of Stolen Property. Where, in a prosecution for receiving stolen goods, knowing them, to have been stolen, the indictment describes the property as “two cases containing thirty-five pairs of shoes, all of the value of forty-nine dollars and eighty cents,” there is no merit in the contention that the description did not include the shoes, but the boxes only. .
    4. -: Instruction. In a prosecution for receiving stolen goods, knowing them to have been stolen, an instruction was not erroneous which required the jury to find that the goods were stolen, taken and carried away from the possession of the owner by some person other than the defendant, with the intent, on the part of the person so stealing and carrying them away, unlawfully and fraudulently to convert said property to his own use and permanently deprive the owner thereof without his consent; said instruction was more elaborate than was necessary in a prosecution for receiving stolen goods.
    5. -: -: Favorable to Defendant. The following instruction held not erroneous, but very favorable to defendant: “You are further instructed that if you believe and find from the evidence that the defendant or his wife bought the property mentioned in the indictment and in evidence, and bought it in good faith from one having possession thereof, and that the defendant had no knowledge at the time that such property was stolen, you must acquit him.”
    Appeal from St. Louis City Circuit Court. — How. Walter B. Douglas, Judge.
    Affirmed.

      Thos. B. Harvey for appellant.
    (1) The motion to quash the indictment for failure to allege that the property was received with a criminal intent, should have been sustained. Clark’s Cr. Law, p. 289; Rapalje on Larceny, secs. 311 and 316; Clark’s Cr. Proc., p. 265; People v. Johnson, 1 Park. Cr. Rep. (N. Y.) 564; Arcia v. State, 26 Tex. App. 193; State v. Hodges, 55 Md. 136; State v. Casteel, 53 Mo. 126; State v. Walker, 174 Mo. 518; State v. Rutherford, 152 Mo. 124. (2) The court should have sustained defendant’s demurrer to the State’s case for failure to show that defendant knew that the property had been stolen from the St. Louis & San Francisco Railroad Company; and it was error to refuse defendant’s instruction to the effect that the proof of such fact was made necessary by the allegations of the indictment. State v. Samuels, 144 Mo. 68; 10 Ency. P. & P. 530; Beale’s Cr. P. & P. sec. 112; Clark’s Cr. Proc., p. 182; Bishop’s New Cr. Proc., secs. 485-7; State v. Noble, 15 Me. 476; U. S. v. Howard, 3 Sumner 14. (3) Defendant’s demurrer to the prosecution’s evidence on the ground that it failed to prove any value of the “two cases,” the only property alleged to have been stolen and received, should have been sustained. 1 Bishop, New Or. Proc., sec. 508; 2 Bishop, New Cr. Proc., sec. 700 (2); State v. Derst, 10 Nev. 443; People v. Logan, 1 Nev. 110; Com. v. Proprietors, 9 Pick. 142; Com. v. Bolkum, 3 Pick. 281.

      Herbert 8. Hadley, Attorney-General, and Rush G. Lake, Assistant Attorney-General, for the State.
    (1) The form of this indictment was substantially approved in the case of State v. Fink, 186 Mo. 50. (2) The demurrer to the evidence was properly overruled. Every fact necessary to make out the State’s case was clearly established. (3) It is not essential to an indictment or information charging the crime of receiving stolen property that the defendant received the stolen property knowing it to have been stolen from a certain person. Kelley on Criminal Law, sec. 682. The indictment is sufficient without the allegation that the defendant, “well knowing the said goods, chattels and personal property to have been stolen, taken and carried away (from the said St. Louis & San Francisco Railroad Company, a corporation as aforesaid, the owner thereof,”) etc. The words in parentheses are non-essential, and should be treated as surplusage. Kelley’s Criminal Law, sec. 201; State v. Wall, 39 Mo. 532; State v. Nation, 75 Mo. 53; State v. Meyers, 99 Mo. 114; State v. Taylor, 117 Mo. 184; State v. Walker, 167 Mo. 370.
   GANTT, J.

The defendant was indicted for receiving stolen goods in the city of St. Louis, on May 21, 1903. As the indictment, is challenged, we produce it in full, as follows:

“The grand jurors of the State of Missouri, within and for the body of the city of St. Louis, now here in court duly impaneled, sworn and charged upon their oath present, that Ike Sakowski, on and about the ninth day of May, one thousand nine hundred and three, at the city of St. Louis aforesaid, two cases containing thirty-five pairs of shoes, all of the value of forty-nine dollars and eighty cents, of the goods, chattels and personal property of the St. Louis & San Francisco Railroad Company, a corporation, then lately before feloniously stolen, taken and carried away from the said St. Louis & San Francisco Railroad Company, a corporation, as aforesaid, with the intent on the part of the thief to permanently deprive the owner of the use thereof, feloniously and fraudulently did from said thief buy, receive and have, the said Ike Sakowski then and there well knowing the said goods, chattels and personal property to have been stolen, taken and carried away from the said St. Louis & San Francisco Railroad Company, a corporation as aforesaid, the owner thereof, with the intent on the part of the thief, as aforesaid, to permanently deprive the owner of the use thereof; contrary to the form of the statute in such case made and provided and against the peace and dignity of the State.”

The defendant was arraigned and entered his plea of not guilty. Afterwards, on January 11, 1904, the defendant withdrew his plea of not guilty and filed his motion to quash on the ground that the indictment failed to state facts sufficient to constitute any offense, and did not allege that the property was received by the defendant with the intention to deprive the owner thereof, or any other intent or purpose in receiving such property. The motion to quash was overruled and defendant duly excepted. Defendant was then rearraigned, and pleaded not guilty. The testimony on the part of the State tended to establish the following facts:

“That on the 8th day of May, 1903, the Brown Shoe Company, a firm in St. Louis, Missouri, sent by the St. Louis Transfer Company sixty-two cases of shoes, consigned upon order to Miller Bros., Leger, Oklahoma Territory, to the St. Louis & San Francisco Railroad freight depot in the city of St. Louis.

“These sixty-two cases were checked out of the Brown Shoe Company and were in turn checked into the ‘Frisco depot;’ but in checking the shipment from the depot into the car, it was found the shipment was two cases short.

“Immediately upon the shortage being discovered, the railroad company notified the Brown Shoe Company, and the St. Louis Transfer Company’s foreman, Ben Humphreys, testifies that about two o ’clock on the afternoon of that day he saw Zinks pass along the street near the place of business of the transfer company with two cases of shoes in his wagon. He knew Zinks, for he had until noon that day been working for the St. Louis Transfer Company as an extra or ‘wild catting,’ which means that the transfer company was short of teams and hired this man with the team of another man to do hauling; that he had been discharged at noon that day for lack of work.

“It appears that Zinks drove down the street in the neighborhood of defendant’s second-hand store and then opened negotiations with a colored man named Jackson, who was to act as agent for Zinks in securing a customer for the shoes.

“The testimony of Zinks is to the effect that he stole the shoes at noon or a little later, and then hanled them to the comer of Second and Valentine streets in St. Louis, about half a block from defendant’s store, which is at 502 South Second street. Jackson was directed to go to the defendant’s place of business and arrange the sale, which he did, and Zinks drove into the alley, unloaded the two cases of shoes, and Zinks, Jackson and a man known as Willir, carried the two cases into the defendant’s place of business, and the shoes were at once taken out of the cases and piled on the floor, and at the direction of the defendant, the empty cases were carried out of the store and given to an old colored woman and Zinks ordered them burned, and the shoes left in the paper boxes or cartons, each carton containing a pair of shoes and each carton bearing the name of ‘Brown Shoe Company, as manufacturers, St. Louis, U. S. A.’ The wooden boxes or cases were each marked on the outside with the name of the consignee, ‘Miller Brothers, Leger, Oklahoma Territory.’

“The negotiations for the sale to the defendant were conducted by the colored man, Jackson, with the defendant’s wife. She paid ten dollars for the thirty-five pairs of shoes to Zinks.

“The testimony of both Jackson and Zinks is to the effect that the defendant was in the store at the time and knew of the transaction. Jackson testifies that defendant helped to take the shoes out of the boxes, and when the boxes were emptied, defendant said to the old colored woman, ‘Take the boxes out,’ meaning the two wooden boxes. Jackson testified that for his share in making the trade Zinks gave him a pair of shoes, and that he traded them to the defendant for a second-hand pair.

“Zinks corroborates the statements of Jackson as to the sale of the shoes; that they were paid for by the defendant’s wife; that defendant was there when the shoes were received, and that defendant ‘took and piled the shoes away,’ and Zinks testifies that the shoes were delivered to defendant, who gave directions as to where the shoes should he placed in the store. Zinks testified that he delivered the shoes in an ice wagon marked ‘Theodore W. Merten Ice & Coal Company;’ that he had on his working clothes, clothes he had on when hauling goods upon a transfer wagon, and that he was under the influence of liquor at the time.”

At the close of the State’s evidence the defendant demurred to it on four grounds, to-wit:

“1st. It is insufficient to sustain the allegations of the indictment.

“2nd. It shows that the purchase and receipt of the property was by the wife of defendant, and not by him.

“3rd. The proof shows no value of the cases, the only property alleged to have been received, the contents thereof, as alleged in the indictment, being merely descriptive of the eases, and no allegation of receiving shoes.

“4th. There is no evidence to sustain the allegation that defendant knew that the property had been stolen from the ‘St. Louis & San Francisco Railroad Company.’ ”

Which demurrer the court overruled and thereupon the defendant offered evidence in substance as follows:

“The testimony upon the part of the defendant was to the effect that he had nothing to do with the transaction, that the negotiations were conducted solely by his wife; that he did nothing concerning the purchase nor the receipt of the shoes into his store; he admits the ownership of the store and that it was run in his name. His contention is that his wife paid seventy-five cents per pair for the shoes, or a total sum of twenty-six dollars. Defendant’s wife testifies that the shoes were purchased by her and that she paid twenty-six dollars for them, and that defendant had nothing to do with them. Both defendant and his wife sought by their testimony to justify the purchase of the shoes upon the theory that it was done in aid of the police in the detection of crime, claiming the police gave them permission to so conduct their business that anything could be purchased by them, and these should be exhibited and held until the police were advised whether it was stolen."

At the close of all of the evidence the court instructed the jury as follows:

"First: If you believe and find from the evidence and under thpse instructions that at the city of St. Louis and State of Missouri, on or about the 9th day of May, 1903, or at some time prior thereto, the property mentioned in the indictment herein, that is to say, two cases containing thirty-five pairs of shoes, were unlawfully and fraudulently stolen, taken and carried away from the possession of the St. Louis & San Francisco Railroad Company, and that the said St. Louis & San Francisco Company was then a corporation, by some person other than the defendant, Ike Sakowski, with the intent on the part of the person so taking, stealing and carrying away the same unlawfully and fraudulently to convert said property to his own use and permanently to deprive the said St. Louis & San Francisco Railroad Company thereof, without its consent, and that the property so stolen, taken and carried away was of the. value of thirty dollars or more, and was the property of the St. Louis & San Francisco Railroad Company. And you further find that after the said property had been stolen, taken and carried away as aforesaid by some person other than the defendant, the said defendant, Ike Sakowski, at the city of St. Louis and State of Missouri, on or about the 9th day of May, 1903, unlawfully and fraudulently and wrongfully did receive said property into his, the defendant’s possession, knowing at the time he received said property that it was stolen. And that he received the same with the unlawful and fraudulent intent to or for the purpose of aiding the thief or with the unlawful and fraudulent intent of permanently depriving the owner thereof; and you further find from the evidence that the property so received by the defendant was of the value of thirty dollars or more, you will find the defendant guilty as charged, and assess his punishment at imprisonment in the penitentiary for a term of not fewer than two years and not more than five years, and unless you so find the facts from the evidence, you will acquit the defendant.

“Unless you find from the evidence and under these instructions that the defendant bought or received the property, as herein mentioned, from some other person, knowing that the same was stolen property, as hereinabove set out, you should acquit the defendant; and the mere fact of the purchase and receipt and possession of said property by defendant raises no presumption that the defendant knew that the said property was stolen by another.

“Second. By the term ‘knowing’ that the property was stolen is not meant absolute personal and certain knowledge on the part of the defendant that the property mentioned in the indictment had been stolen, but such knowledge and information in his possession at the time he received the property as would put a person of ordinary prudence and caution on his guard under similar circumstances and would cause him to believe and to be satisfied that the property had been stolen.

“Third. You are further instructed that if you believe and find from the evidence that the defendant or his wife bought the property mentioned in the indictment and in evidence, and bought it in good faith from one having possession thereof, and that the defendant had no knowledge at the time that such property was stolen, you must acquit him.

“Fourth. The court instructs the jury that if they believe and find from the evidence that the property alleged in the indictment was bought and received from the thief of the property by the wife of the defendant, and not by the defendant himself, and that he did not then and there participate with her in such purchase and receipt thereof, you will acquit the defendant.

“Fifth. The court instructs the jury that if the defendant bought and received the property in question and that he knew it was stolen, yet if he did not buy and receive the property with the wrong and fraudulent purpose of converting the property to his own use and with the intent to deprive the owner of said property, the jury will acquit the defendant.

“Sixth. You are further instructed that the indictment contains the formal statement of the charge, but is not to be taken as any evidence of defendant’s guilt.”

To the giving of which said instructions for the State the defendant duly excepted. Thereupon the defendant prayed the court to give the jury the following instruction:

“The court instructs the jury that under the allegations of the indictment it is necessary, before they can convict the defendant, that they shall find and believe from the evidence that the defendant not only knew that the property was stolen, but that he knew that it had been stolen from the St. Louis & San Francisco Railroad Company; and unless you find and believe from the evidence that he did know that the property was stolen from said railroad company, the jury will acquit the defendant.”

Which said instruction the court refused to give to the jury, and the defendant duly excepted. The jury returned the following verdict:

“We, the jury in the above-entitled cause, find the defendant guilty of receiving stolen property of the value of thirty dollars or more, knowing the same to have been stolen, as charged in the indictment, and assess the punishment at imprisonment in the penitentiary for two years."

Thereupon, in due time the defendant filed his motion for new trial and in arrest of judgment, which was heard, considered and overruled, and the defendant appeals to this court.

I. A reversal of the judgment in this case is sought upon three grounds. The first assignment of error is aimed at the indictment which it is insisted is bad because it fails to allege that the property was received with a criminal intent. It is insisted by learned counsel for the defendant that the intent of the thief in stealing the property is sufficiently averred, but that no criminal purpose is charged to have inspired the defendant’s act in receiving the same. In support of this contention we are cited to various cases in this State on the subject of larceny, which hold that it is essential that an indictment for larceny charge the felonious intent of a thief to convert the goods to his own use without the consent of the owner. [Witt v. State, 9 Mo. 663; State v. Rutherford, 152 Mo. 124.] But it is to be remembered that this is not a prosecution for larceny, but is one bottomed upon section 1916, Revised Statutes 1899, which provides that “every person who shall buy, or in any way receive, any goods, money, right in action, personal property, or any other valuable security or effects whatsoever, that shall have been embezzled, converted, taken, or secreted contrary to the provisions of the last four sections, or that shall have been stolen from another, knowing the same to have been so embezzled, taken or secreted, or stolen, shall, upon conviction, be punished in the same manner and to the same extent as for the stealing of the money, property or other thing so bought or received.” The offense is purely a statutory one, and the General Assembly in defining it has not made it a constituent element of the crime that the receiver should receive the same with intent to deprive the owner thereof. This section has been before this court for construction quite recently in the case of State v. Richmond, 186 Mo. 71. And the indictment in that case was assailed on the same ground upon which this indictment is challenged and it was said: “By its terms receiving the stolen property makes the case. In the absence of a statutory provision that the defendant received the goods with intent to deprive the owner thereof or to aid the thief, no such averment is necessary or essential in an indictment or information for this offense. The decisions of this court on the requisites of larceny are not applicable.” [Gandolpho v. The State, 33 Ind. 439 ; State v. Moultrie, 34 La. Ann. 489; Nourse v. State, 2 Tex. App. 304.]

It may be conceded that in a number of the United States the statute, in defining the offense of receiving stolen goods, makes it one of the constituents of the crime that the property should be received, not only with a guilty knowledge of the fact that it was stolen, but also with the intent to defraud the owner, and the decisions under such statutes render the charge of an intent to defraud the owner necessary, but the reading of the statute upon which this indictment is based makes no such requirement. The averment in this indictment that the defendant feloniously and fraudulently did from the said thief buy, receive and have the said goods, then and there well knowing the same to have, been stolen, taken and carried away, is a sufficient charge of the felony denounced by the statute. An indictment similar in all essentials to this was passed without adverse comment in State v. Fink, 186 Mo. 50.

II. It is next insisted that the conviction in this case cannot stand because the evidence utterly failed to sustain the allegation in the indictment that the defendant received the property well knowing it “to have been stolen from the St. Louis & San Francisco Railroad Company." The defendant requested an instruction that before the jury could convict him, they must find and believe from the evidence that the defendant not only knew that the property was stolen, but that he knew that it had been stolen from the St. Louis & San Francisco Railroad Company, which instruction the court declined to give. The issue is sharp. It is conceded by the defendant that it was not at all necessary to plead that the defendant, in addition to knowing that the property was stolen when he received it, knew it was the property of the railroad company, but that the State, having alleged with unnecessary particularity knowledge of the party from whom the goods were stolen, was bound to establish it as charged. On the other hand, it is insisted by the Attorney-General that so much of the indictment as avers a knowledge that the goods were stolen “from the St. Louis & San Francisco Railroad Company” was entirely unnecessary and immaterial, and may be treated as surplusage.

The rule in regard to the rejection of unnecessary allegations in an indictment or information as surplusage is well defined, the only difficulty arises in its application to specific cases. In State v. Samuels, 144 Mo. l. c. 73, this court, through Sherwood, J., approved the statement by Mr. Bishop in his work on Criminal Procedure, volume 1, section 485, to the effect that 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." Clark in his Criminal Procedure, page 183, states the rule in this way: “Whenever a person or thing necessary to be mentioned in the indictment is described with unnecessary particularity, all the circumstances of the description must be proved; for they are essential to its identity.”

In 1 Chitty’s Criminal Law, 173, it is said: “But though the indictment must in all respects be certain, yet the introduction of averments although superfluous and immaterial will seldom prejudice. For if the indictment can be supported without the words which are bad, they may on arrest of judgment be rejected as surplusage.” In the same volume, page 250, the same learned authority says: “It is a general rule which runs through the whole criminal law, that it is sufficient to prove so much of the indictment as shows the defendant has committed a substantive crime therein specified; and in the case of redundant allegations it is sufficient to prove part of what is alleged according to its legal effect, provided that that which is alleged, and not proved, be neither essential to the charge, nor describe or limit that which is essential.” The rule is indicated by the cases; thus, in Rex v. Morris, 1 Leach Cr. L. 127, the indictment charged that “Francis Morris, the goods and chattels above mentioned, so as aforesaid feloniously stolen, taken, and. carried away, feloniously did receive and have; he the said Thomas Morris, then and there, well knowing the said goods and chattels last mentioned to have been feloniously stolen, taken and carried away.” It was moved in arrest of the judgment that the indictment having alleged that Francis Morris had received the property, and that Thomas knew it to be stolen, the conviction could not be supported as against the accessory, for the fact of receiving and knowledge of the previous felony must reside in the same person. The twelve judges upon the question whether the words “the said Thomas Morris” could be rejected as surplusage, unanimously held that as the indictment would be sensible and good without these words, they may be stricken out as superabundant and unnecessary. A similar ruling was made in Rex v. Redman, 2 Leach Cr. L. 536. In Rex v. Jervis, 6 C. & P. 156, it was urged by counsel for the defendant that the indictment should have charged the goods to have been stolen by a certain person, or else to have stated that he was unknown, but Chief Justice Tindal said: “It would do; the offense created by the act of parliament is not the receiving stolen goods from any particular person, but receiving them knowing them to have been stolen,” and such is the great weight of authority. It is entirely unnecessary to state in the indictment by whom the larceny was committed. In People v. Caswell, 21 Wend. 86, it was said by the court: “The receiving of stolen goods is, in its own nature, an offense, if they be known by the receiver to have been stolen; and if directly alleged to have been stolen by A., it is difficult to conceive that the prisoner should be able to defend himself even by proving that they were stolen by B., or by a failure of the evidence to show a thief in particular, so long as the accused knew that they were stolen. ... It cannot therefore be an essential matter of description that anyone in particular committed the theft; and if one be named, this may be passed over as a mere circumstance.” [2 East P. C. 780, sec. 163.] Neither is it essential or necessary to charge that the defendant knew the stolen property was the property of any particular person. It is sufficient to charge in the first instance the larceny of the property and its ownership, and that the defendant did receive the same while knowing that it was stolen. If the indictment alleges the property to have been stolen by A. and the prisoner cannot avail himself of the proof that it was stolen by B., or the failure to show a thief in particular, so long as he knew that the goods were stolen, neither can it avail him if the State fails to show that he knew whose property it was that was stolen, so long as he knows it was stolen when he received the same. In either case the particular aliegation is unnecessary and a failure to prove the same will not entitle him to go acquit because the State fails to show that he was possessed with the knowledge that it was stolen from a particular person who is alleged to be the owner in the indictment.

Clark in his Criminal Procedure, page 332, speaking of the allegation of knowledge, says: “When knowledge is necessary to constitute the offense it is not only necessary to allege it but it is essential that it be proved. But .... where it is not necessary at all to constitute the offense, the allegation may be rejected as surplusage, and need not be proved.” He is fully supported in this statement by the Supreme Court of Massachusetts in Com. v. Squire, 42 Mass. l. c. 260-261, and 1 Chitty’s Criminal Law, 241. As already said, our statute, unlike the statute of 5 Anne, ch. 31, sec. 5, which regarded the receiver of stolen goods as only an accessory after the fact, treats the receiving of stolen goods knowing them to be stolen as an independent substantative offense. The offense is not the receiving the stolen property from the thief himself, or from any particular person, but the receiving of it knowing it to be stolen from any person whatsoever. [Anderson v. State, 38 Fla. 3; State v. Smith, 37 Mo. l. c. 64; Arch. Crim. Pl., 256.] If, then, as stated by that standard authority on Criminal Law, Mr. Chitty, “it is sufficient to prove so much of the indictment as shows the defendant has committed a substantive crime therein specified,” and it was wholly unnecessary and immaterial to charge that defendant knew the goods were stolen from the St. Louis & San Francisco Railroad Company, and the evidence abundantly established that defendant received the stolen shoes knowing them to have been stolen, proof of a substantive crime was established, and the failure to prove the non-essential, unnecessary and redundant allegation of knowledge that they were- stolen from the railroad company, did not entitle him to an acquittal. Unquestionably a necessary allegation may be made unnecessarily minute and tbe State required to prove it as alleged, but the allegation of knowledge of the person from whom the goods were stolen, being wholly unnecessary in this case, a failure to prove it did not affect the validity of the verdict based upon evidence which made out the crime upon the remaining averments of a substantive offense.

III. It is next urged that the description of the property alleged to have been stolen, to-wit, “Two cases containing thirty-five pairs of shoes, all of the value of forty-nine dollars and eighty cents,” did not include the shoes, but the boxes only. We do not think that there is any merit in this contention. In the very nature of things, the thief in stealing, taking and carrying away “two cases containing thirty-five pairs of shoes” stole, took and carried away the shoes in the boxes. As said by the Supreme Court of Nevada in State v. Derst, 10 Nev. 443, “a man cannot steal a box containing a watch which is the property of the owner of the box without stealing the watch.”

IV. The first instruction is assailed on the ground that it does not require the jury to find that the taking was without the owner’s consent. The objection is without foundation. The instruction required the jury to find that the two boxes containing the shoes were stolen, taken and carried away from the possession of the St. Louis & San Francisco Railroad Company by some person other than defendant Sakowski, with the intent, on the part of the person so stealing and carrying them away, unlawfully and fraudulently to convert said property to his own use and permanently deprive the said railroad company thereof without its consent. No more definite language could have been employed in directing the jury that the taking must have been without the consent of the alleged owner. The clause “without its consent” evidently refers to the stealing, taking and carrying away as well as to the conversion of the property. The instruction was far more elaborate than was necessary; it would have been amply sufficient under the statute to have required the jury to find that some person other than the defendant stole, took and carried away the goods described in the indictment, and that the defendant, knowing them to have been stolen, received the same. This court has often remarked that the same technical precision is not required in an instruction as in an indictment. The indictment in this case is not for larceny, and it was not necessary to give all the technical requisites of an indictment for larceny in the instruction.

V. Equally groundless is the criticism of the third instruction. It was in the interest of the defendant and very favorable to him.

Our conclusion is that there is no reversible error in the record, and the judgment must be and is affirmed.

All concur.


author: BURGESS, P. J.

text:
    THE STATE v. ED. CHITTY, MARTIN SNYDER, and SHORTY ADAMS, Appellants.
    Division Two,
    December 12, 1905.
    NO BILL OF EXCEPTIONS. Where no hill of exceptions is filed, there is nothing before the appellate court except the record proper, and if that is free from error, the judgment will be affirmed.
    Appeal from Pemiscot Circuit Court. — How. H. G. Riley, Judge.
    Affirmed.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
   BURGESS, P. J.

The defendants were informed against by the prosecuting attorney of Pemiscot county and charged with murder in the first degree for shooting and killing, with malice and deliberation, one D. M. Malone, at said county, on the 22nd day of May, 1903.

On the twenty-second day of December, 1904, defendants were put upon their trial in said court for murder in the second degree, and all found guilty of that offense, and the punishment of each fixed by the jury at fifteen years’ imprisonment in the penitentiary. They appeal.

Defendants are not represented in this court. No bill of exceptions was filed in the cause, so that there is nothing before us for review except the record proper, and finding no error in it which would justify a reversal of the judgment, it should be affirmed. It is so ordered.

All concur.


text:
    THE STATE v. ALBERT R. JONES, Appellant.
    Division Two,
    December 12, 1905.
    1. TAKING AWAY FEMALE FOR PURPOSE OF CONCUBINAGE: Information. The information in this cause, which was a prosecution for taking away a female under eighteen years of age for the purpose of concubinage, is held to properly charge every essential element of the offense.
    2. -: Reputation of Prosecutrix: Attacking Character. Where witnesses have testified as to improper conduct of the prosecutrix in improper and promiscuous association with men at night, and to admissions by her of having sexual intercourse with other men and being pregnant by another man, this is a sufficient assault upon her character to entitle the State to introduce testimony, in rebuttal, as to her good reputation.

      3. APPELLATE PRACTICE: Refusing Instructions: No Exceptions. Where the record discloses no objections or exceptions to the action of the court in refusing instructions, they can not be reviewed in the appellate court.
    4. CONCUBINAGE: Sufficiency of Evidence: Province of Jury. Where there is substantial evidence to support the verdict of the jury, and there is no indication that the verdict was the result of passion or prejudice, it will not be disturbed by the appellate court. And the evidence in this case is held sufficient to support the jury’s verdict finding defendant guilty of taking away a female under the age of eighteen years for the purpose of concubinage.
    Appeal from Scotland Circuit Court. — Now. E. B. McKee, Judge.
    Affirmed.

      Herbert 8. Hadley, Attorney-General, and A. T. Gentry, Assistant Attorney-General, for the State.
    (1) The information was sufficiently clear, definite and in proper form; it was properly verified as required by statute. It was a verbatim copy of one that was approved by this court; in addition, it follows the language of the statute. State v. Johnson, 115 Mo. 486; R. S. 1899, sec. 1842; Kelley’s Crim. Law, sec. 548. (2) The record proper is all that can be considered by the court, as the motion for a new trial and the instructions given and refused are not copied into the bill of exceptions. (3) The credibility of a woman who is a witness may be attacked by showing that her reputation for virtue and chastity is not good; hence, the party producing such woman as a witness should have an opportunity to sustain her reputation. State v. Raven, 115 Mo. 419 ; State v. Sibley, 131 Mo. 519; State v. Dyer, 139 Mo. 199. (4) When considered all together, the evidence was sufficient to convict defendant. State v. Neasby, 188 Mo. 467; State v. DeWitt, 152 Mo. 76; State v. Williams, 149 Mo. 496; State v. Williams, 186 Mo. 128.
   FOX, J.

This cause is here upon appeal by the defendant from a judgment of conviction in the Scotland County Circuit Court on a charge of taking away from her father one Cora Smith, a female under the age of eighteen years, for the purpose of concubinage. The charge upon which this conviction is based is thus made by the prosecuting attorney in the information filed on March 18, 1908:

“Now comes Calvin H. Hilbert, prosecuting attorney within and for Scotland county, Missouri, and under his oath of office informs the court, and charges that Albert E. Jones, at the county of Scotland and State of Missouri, on the -- day of October, A. D. 1902, at the county and State aforesaid, did then and there being one Cora Smith, a female person under the age of eighteen years, to-wit, sixteen years old, unlawfully and feloniously take from one Solomon Smith, her father, he, the said Solomon Smith, then and there being in the legal charge of the person of the said Cora Smith, without the consent and against the will of the said Solomon Smith, for the purpose of concubinage, by having illicit sexual intercourse with him the said Albert E. Jones, against the peace and dignity of the State.” The information was duly signed and verified as provided by law.

Upon the trial of this cause, the State’s evidence tended to show that Miss Cora Smith was born on the 10th day of July, 1886, and was therefore sixteen years of age at the time of the commission of the alleged offense. This fact was proven by her father, mother and some neighbors, who remembered the place and the time of her birth. A family record was also introduced in evidence, but it was kept in an unsatisfactory manner; but went to the jury for what it was worth. In September, prior to her taking away, Solomon Smith, father of the prosecutrix, resided on a farm some miles from Memphis, in Scotland county. With his consent, prosecutrix came with her mother and two younger sisters to Memphis to visit the family of her uncle during the county fair, and to obtain domestic employment, if possible. While at the home of her uncle, she came in contact frequently with defendant, who also temporarily lived at that home. Defendant was a cousin of prosecutrix, but had been acquainted with her less than one year. Defendant was a cement and tile workman, his business requiring him to be away from home most of the time. His wife and four children lived at Plymouth, Illinois, and defendant called Plymouth his home. While living at the same house with prosecutrix, defendant had sexual intercourse with her on one occasion. Defendant afterwards stated to prosecutrix that he had received a letter from a friend saying that a good position could be secured for a house girl in Keokuk, Iowa; so defendant asked and urged her to go. After being assured that friends would meet her at the train, prosecutrix consented to go and did go, defendant furnishing her with $1.50. However, defendant persuaded her to go first to Plymouth, Ill., and met her at the depot, taking her to his own house. There prosecutrix met defendant’s wife and remain ed a short time. Afterwards, prosecutrix and defendant went to Keokuk, and on the way defendant admitted to her that he had received no letter from his friend, but that he had to gn to Keokuk to do some work. When the two arrived in Keokuk, they went to a hotel, where they occupied the same room; and after-wards rented two rooms and lived together for two weeks. Defendant told prosecutrix that he had always wanted her, and now he had her and she must do as he said; that she must say that she was his wife, that they had been married three years and that she was twenty-one years old. No one occupied the apartments but these two, they sleeping in the same bed and having sexual intercourse frequently. While both of them were walking near the depot one night, they were arrested by the assistant chief of police and taken to jail. At a habeas corpus proceeding held in Keokuk, prosecutrix, at the request of defendant, testified that he had not had sexual intercourse with her, and that defendant did not persuade her to leave her home. Before she so testified, defendant told her that she had better not tell that he was to blame, for if she did death would come and it would not be long. She admitted that her testimony in the habeas corpus proceeding in Keokuk was not true, and claimed to disclose on this trial a true statement of her relations with defendant.

On the part of the defendant there were numerous witnesses introduced whose testimony tended to show that the prosecutrix, Cora Smith, was more than eighteen years of age at the time of the alleged commission of the offense, and some of the witnesses who testified said that the prosecutrix had stated to them that she was eighteen years of age. Several witnesses also testified that the prosecutrix had said to them or in their presence that the defendant had never had sexual intercourse with her and that her pregnancy was the result of an intercourse with another man, a commercial traveler, who resided in St. Louis. Testimony was also introduced showing that the prosecutrix had testified at a hearing upon habeas corpus in Keokuk, Iowa, that the defendant did not have sexual intercourse with her and had always treated her all right. Other testimony was introduced as to statements made by her that the defendant was the best friend she ever had.

Defendant testified in his own behalf; he denied having intercourse with prosecutrix and denied furnishing her with any money. He denied showing her any letter, or trying to get her to leave Memphis. He further testified that on his way to Plymouth he stopped off at Keokuk, met prosecutrix and arranged for her to go to his home, there to remain till after her confinement; that this arrangement was made at his wife’s suggestion. After remaining at Plymouth for awhile, defendant said that he concluded to move over to Keokuk to see if he could get work, so he took prosecutrix and went on ahead of his family. The reason assigned for taking prosecutrix with him to Keokuk was that she had a cousin in Plymouth and did not want her cousin to know that she was in the family way. Defendant admitted that he and prosecutrix had two rooms in Keokuk, and also that there was only one room that had a bed in it; this, he said, was because he did not want to have any more elaborate apartments than was necessary. He also admitted being arrested at ten o ’clock at night near the depot with prosecutrix, but denied making any threats.

The State, in rebuttal, offered numerous witnesses who testified to the good reputation of the prosecutrix, Cora Smith, for chastity and virtue.

This is a sufficient indication of the nature and character of proof upon which this cause was submitted to the jury to enable us to' pass intelligently upon the legal propositions presented by the record.

At the close of the evidence the court instructed the jury and seemed to undertake to cover every possible or imaginary theory of this cause. There were twenty-six or twenty-seven instructions given; a number of them entirely unnecessary. We shall not burden this opinion with a reproduction of all the instructions, and shall be content- with giving those challenged in the motion for new trial due consideration in the course of the. opinion. The seventh ground in the motion for a new trial was that the court erred in giving the following instructions on behalf of the State: 5, 7, 8, 9 and 11. They were as follows:

“5. If you believe from the evidence that the witness, Cora Smith, was at the time of the filing of the information, to-wit, on the 18th day of March, 1903, an unmarried female under the age of 18 years; that at the time she was under the care and control of her father, Solomon Smith, and an inmate of his home in Scotland county, Missouri, or that with his consent and knowledge she was away from home working, or that she was away from home on a visit at the home of her uncle in Memphis, Missouri, or was, with the consent of her father, working at Memphis, Missouri, and if you believe beyond a reasonable doubt that the defendant did make arrangements with her and did after-wards take her, or cause her to go to Keokuk, Iowa, or to Plymouth, Illinois, and then to Keokuk, Iowa, then when taking her away from her father having the intent to abide and live with her as man and woman, for intent and purpose of concubinage, that is, for the purpose of living and abiding and cohabiting with her as man and woman in sexual intercourse, for any length of time without the authority of legal marriage, and if you find that the same was done at any time within three years prior to the filing of the information, you will find the defendant guilty as charged in the information, and assess his punishment at imprisonment in the penitentiary not to exceed five years.

“7. The court instructs the jury that under the law the State is not required to prove, in order to convict the defendant, that he took the prosecuting witness, Cora Smith, from the house or the premises of her father, Sol. Smith; but the State is only required to prove that he took her or kept her away from her father’s care and custody, or that he met her away at her uncle’s at Memphis, Missouri, where she may then be staying, and that then or there he induced her to go to Keokuk, Iowa, or from there to Plymouth, Illinois, and then to Keokuk, Iowa, where he cohabits with her as man and woman, and if you believe that the defendant has done this, you will then find him guilty, as charged in the information, and assess his punishment in the penitentiary as hereafter provided, if you believe it was his intention and purpose at the time of taking her away to abide with her, and while so living, to cohabit with her.

“8. If you find that Cora Smith, is an unmarried female under eighteen years of age, and that beyond a reasonable doubt the defendant Jones, at any time within three years prior to the filing of the information, took her from her father .by means of ■ solicitations or directing her course so as to place her in a situation inconsistent with the relations of a father and daughter by taking her away from her home and cohabiting with her or by paying her car fare or transportation expenses from her father’s care and custody elsewhere, or by going away with her from the house and possession of her father, or by meeting her away from home.and going away from her father with her, with the intent at the time he so took her from her father in Scotland county to live with her as man and woman in the exchange of sexual pleasure without the warrant of lawful marriage, then you will find the defendant guilty as charged and assess his punishment as hereafter provided.

“8a. A girl under the age of eighteen years who, with her father’s consent, works out as a domestic servant, and who returns to her father’s house and makes his house her home when out of such employment, or who, with the consent of her father, visits a relative, is still under the care and control of her father, while so at service, or visiting such relative, as much as if she were in her father’s house.

“9. The court instructs the jury that if you believe and find from the evidence that Cora Smith was the daughter of Solomon Smith and that she was under the age of eighteen years, and if you further find that she was in the habit of working out as a domestic servant, and had so worked out at a number of places during the past year, and that when out of work she made her home with her father, and if you further find that during the fall of 1902 she came to the city of Memphis, Missouri, to the home of her uncle and that her coming to Memphis was with the consent of her father, that she was under the control of her father while in Memphis, and if you find that the defendant took her from her uncle’s house in Memphis to the city of Keokuk, Iowa, for the purpose of concubinage, or that she went to Keokuk, Iowa, by reason of an agreement with the defendant, or by reason of inducements held out by the defendant, then you should find the defendant guilty, if you believe he induced her to go for the purpose of concubinage.

“11. Although you may believe the witness, Cora Smith, was a willing and consenting party to the taking away, and that no compulsion whatever was used in causing her to go away from her father’s control and home, it will be no defense or justification to any one who in any way assists or causes her to leave her father’s home and his care.”

Upon the submission of the cause to the jury they returned a verdict finding the defendant guilty as charged and assessed his punishment at imprisonment in the penitentiary for a term of two and one-half years. Motion for new trial was filed and overruled and judgment of sentence was pronounced and entered of record in accordance with the verdict. Prom this judgment the defendant prosecuted this appeal and the cause is now before us for review.

OPINION.

Appellant is not represented in this court and there is no assignment of errors or brief filed suggesting or in any way indicating the complaints of the defendant in respect to the disposition of his case in the trial court. However, in compliance with the duty imposed by the provisions of the statute, we will give the record now before us, disclosing the action of the court during the progress of the trial, such attention as the importance of the case and the proper administration of justice demand.

The information in this cause is predicated upon one of the subdivisions of section 1842, Revised Statutes 1899, and properly charges every essential element of the offense defined by the statute. It is in substantially the same form as the indictment charging this offense in State v. Johnson, 115 Mo. l. c. 486, which met the approval of this court.

Upon the assignment of error as to the exclusion of evidence offered by defendant, it is sufficient to say that we have carefully considered the disclosures of the record and find but few exceptions preserved to the action of the court. From an examination of this record we are of the opinion that the exclusion of the questions and answers to which objections and exceptions were preserved was proper. Objections and exceptions were preserved to the testimony, offered by the State, as to the good reputation of prosecutrix. These objections were predicated upon the theory that her reputation had not been assailed, hence it was error to admit the testimony tending to show her good reputation. The record discloses that numerous witnesses gave testimony as to improper conduct of the prosecutrix, such as improper and promiscuous association with men at night, and to admissions by her of having sexual intercourse with other men and being pregnant by another man. We are convinced that this was a sufficient assault upon her character to justify and warrant the testimony offered by the State in rebuttal as to her good reputation. A similar contention was made in the recent case of State v. Speritus, 191 Mo. 24, and was ruled adversely to the defendant.

We have reproduced the only instructions to which the attention of the trial court was directed in the motion for new trial. Treating of the instructions, it is only necessary to say that there were twenty-six instructions given by the court in this cause, a number of them entirely unnecessary; however, the entire subject was covered, and those given for the defendant were extremely favorable to his theory of this cause. After a careful consideration of those instructions to which objection is made, we are of the opinion that while inartificially drawn, they correctly state the law as applicable to the testimony, to which they manifestly were intended to apply. This brings us to the grounds assigned in the motion for rehearing, that the court erred in refusing to give instruction No. 16, requested by defendant. An examination of the record makes it manifest that no such complaint is properly preserved. The instructions do not appear in the bill of exceptions, but are copied in the transcript sent to this court. The bill of exceptions expressly recites that the court gave the instructions prayed for by defendant. It is thus stated in the bill of exceptions at the close of all the evidence: “Whereupon the plaintiff prayed the court to instruct the jury as follows: (Clerk here copy instructions given for the State) which instructions the court gave to the jury, to the giving of which instructions in behalf of the plff. the deft, by his counsel then and there duly excepted. The deft, on his part prayed the court to instruct the jury as follows: (Clerk here copy instructions given for defendant) Which request the court granted and gave the instructions.”

It may also be added that the record nowhere discloses any objection or exception to the action of the court in refusing any instructions offered by the defendant; in fact, it nowhere appears that defendant requested any instructions to be given to the jury; hence, it follows that there is nothing before us for review upon the subject of a refused instruction.

This leads us to the consideration of the only remaining assignment of error suggested by the motion for new trial, that is, as to the sufficiency of the evidence to support the verdict. The rule upon this subject has been so repeatedly and recently announced by this court that it is hardly necessary to again repeat it or cite authorities in support of it. “Where there is substantial evidence to support the verdict of the jury, and no indication disclosed by the record that the conclusions reached were the result of passion or prejudice, the finding will not be disturbed by the appellate court. [State v. Smith, 190 Mo. 706; State v. DeWitt, 152 Mo. 76; State v. Williams, 149 Mo. 496; State v. Williams, 186 Mo. 128.] We have read in detail the testimony of all the witnesses introduced in this cause, and there is no escape from the conclusion that, if the testimony on the part of the State was true, and the jury believed it to be true, the verdict of the jury is fully supported. On the other hand, if the testimony of the defendant and the witnesses introduced by him were true, he was beyond question entitled to an acquittal; but, at last, to whom are we to look for a determination of this conflict in the evidence? There can be but one answer, and that is, the jury. The witnesses were all before the court and it was the special province of the jury to determine their credibility and the weight to be attached to their testimony. For this court, upon the mere disclosures of the record, to undertake to weigh and settle conflicts in the evidence introduced in the trial court, would result in overruling a long and unbroken line of well-considered decisions by this court, upon this subject, and this we are unwilling to do.

Without the aid of any suggestions on the part of the appellant we have gone through the record before us with the view of ascertaining the action of the trial court upon all questions arising during the progress of the trial. Our examination and consideration of it fails to disclose any substantial grounds for the reversal of the judgment. Finding no reversible error, the judgment should be affirmed, and it is so ordered.

All concur.