author: PARIS, P. J.

text:
    THE STATE v. ARCH G. SNYDER, alias FRANK KELLY, Appellant.
    Division Two,
    February 23, 1915.
    1. UNREASONABLE PUNISHMENT: Burglary: Twenty Years: Authorized by Statute. Where the record is entirely barren of anything indicating passion or prejudice on the part of the jury, and is singularly free from any inflammatory argument by counsel for the State, a punishment at twenty years’ imprisonment assessed against a defendant convicted of being an accessory before the fact to the crime of burglary with explosives, and who the evidence shows stood outside the building watching for police while his confederates opened a window of a laundry and engaged in boring into a safe with a brace and steel-cutting bit, being five years less than the maximum fixed by the statute, is not so unreasonably large as to indicate by its severity passion and prejudice on the part of the jury, but being fully warranted by the statute is allowed.
    2. INSTRUCTIONS: All Law of Case. A general assignment in the motion for a new trial that “the court erred in failing to instruct on all of the law governing the case” is not sufficient, since it fails to definitely point out to the trial court wherein he erred.
    3. BURGLARY: Sufficiency of Evidence: Testimony of Accomplices and Ex-convicts. Although almost all of the direct testimony of defendant’s participation in the crime of burglarizing the building came from ex-convicts and accomplices, yet if all other matters of detail necessary to prove the offense, except the specific intent with which he happened to be on the scene of the burglary, were established by the testimony of witnesses who were not accomplices, and defendant himself admits he was present but says he was there waiting for a street car, and two of the convicts say he was present as an outside watch for those who were engaged in burglarizing the building, and that he gave a signal of the approach of officers by tapping three times on the window of the building in which the safe was being bored for explosives, and one of the officers testifies that defendant gave this signal, and the trial court gives the necessary precautionary instructions as to the testimony of accomplices and ex-convicts, the judgment will not be disturbed by the appellate court on the alleged ground that the evidence was not sufficient to sustain a conviction, although it cannot be said to preclude the possibility of defendant’s innocence.

      Appeal from Jackson Criminal Court. — Ron. Ralph 8. Latshaw, Judge.
    Affirmed.

      Loyd, Marts for appellant.

      John T. Barker, Attorney-General, and 8. P. Rowell for the State.
    (1) The verdict returned by the jury found the defendant guilty of burglary with explosives as charged in the information and fixed his punishment at twenty years in the State penitentiary. There was but one offense charged, namely, burglary with explosives, and the verdict specifically found the defendant guilty of that crime. Sec. 4527, R. S. 1909; State v. Stark, 202 Mo. 221; State v. Martin, 230 Mo. 691; State v. Stevens, 242 Mo. 439; State v. White, 251 Mo. 185. (2) Where the record shows that substantial evidence has been submitted on the trial upon which to base the verdict returned, this court will not interfere. Under our statute if one by his presence at the scene of crime lends encouragement to its perpetration and is in position and willing to render assistance if necessary to the active participant, he is in contemplation of law equally guilty with the one who physically consummates the criminal act. State v. Orrick, 106 Mo. 120; State v. Kennedy, 177 Mo. 131; State v. Nelson, 98 Mo. 414; State v. Valle, 164 Mo. 551. The common design or purpose to commit the criminal act need not be shown by direct and positive evidence but it may be deduced by attending circumstances connected with the transaction in question. State v. Walker, 98 Mo. 104; State v. Sykes, 191 Mo. 78; State v. Spaugh, 200 Mo. 591; 'State v. Fields, 234 Mo. 623; 12 Cyc. 186. Moreover, it is the province of the jury to judge of the credibility of the witnesses and the weight and sufficiency of the evidence. The case was submitted to the jury-under fair and proper instructions, and having considered the evidence they found the defendant guilty as charged in the information. There being’ substantial evidence to support the verdict, this court will not disturb the result reached by the jury. State v. Tetrick, 199 Mo. 104; State v. Sassman, 214 Mo. 738; State v. White, 251 Mo. 178; State v. Concelia, 250 Mo. 424.
   PARIS, P. J.

Defendant, sentenced to the penitentiary for a term of twenty years, on conviction of being an accessory before the fact to the crime of burglary with explosives, after the usual procedure, appeals.

The facts in this case as disclosed by the record, are that defendant and three others agreed to burglarize Munger’s Laundry in Kansas City and blow the safe therein. King and Magglet, two of such others, raised a window, which was closed, entered the building in which the laundry was operated, and began boring into the safe with a brace and steel-cutting’ bit, while defendant and another, one Stanton, the remaining one of the quartette, stood watch outside on the street. While King and Magglet were inside of the building boring into the safe preparatory to exploding it with gunpowder, a police officer came along the street, approaching the front of the laundry, whereupon defendant backed up to the window of the laundry and tapped thereon three times. He also tapped, or stamped, three times upon the sidewalk with his feet.

Defendant and said Stanton were taken into custody- shortly after this by the officers. Upon examination of the premises alleged to have been burglarized, a set of burglar’s tools, an implement called a “jimmy,” a revolver, a piece of fuse and some gunpowder were found in and about the building; a part of these articles near the safe, which was found to have the outer casing bored completely through into the asbestos filling.

The proof shows that the windows of the laundry were closed when the employees thereof left the building on the previous evening. The proof as to whether they were locked was not clear, but one window appeared, as the witness expressed it, “to have been jimmied,” and the lock thereon broken.

Stanton, the accomplice of defendant, and one Brown (both of whom admitted they were ex-convicts, and one of whom was an escaped convict), both testified touching defendant’s connection with this burglary. The witness Brown testified that he was present at a meeting of King, Magglet, Stanton and defendant, at which it was agreed to burglarize this laundry. The witness Stanton testified positively that defendant and he were stationed outside of the building, pursuant to agreement, to watch for officers and to give the alarm, while King and Magglet entered the building and blew the safe.

Defendant himself admitted his presence at the place where the other witnesses placed him, to-wit, upon the street in front of the burglarized building; but he explains his presence there by saying that he had been to visit his sister in another part of town and on returning toward his lodging place had stopped in front of this building to catch a car. As to his visiting his sister he is corroborated by her and by another sister who testified for him.

Further details of evidence, if they shall become necessary, will be referred to and set out in the subjoined opinion.

Defendant is not represented in this court by counsel, so we are compelled, guided by his motion for a new trial, to examine the whole record for error.'

He complains that the verdict is unreasonable and that such unreasonableness indicates passion and prejudice. There appears upon the record no reason whatever for the existence of passion or prejudice on the jury’s part. The record is singularly free from any inflammatory argument by counsel for the State. The punishment inflicted by the verdict of the jury is admittedly severe, but it yet falls five years short of the maximum punishment prescribed by the statute for the offense of which defendant was convicted. [Secs. 4526 and 4527, R. S. 1909.] Since, therefore, there are no indications of passion or prejudice, save the inferences arising’ from the severity of the punishment, and since this severity was fully warranted by the statute, we disallow the contention.

Neither an objection nor an exception was made or saved to the instructions as given by the court, nor is any matter preserved for our review upon any question pertaining to the instructions. The general assignment of error is made in the motion for a new trial that “the cpurt erred in failing to instruct on all of the law governing the case.” "We have held many times that such an assignment is not sufficient, in that it fails definitely to point out to the trial court wherein he erred. [State v. Harris, 245 Mo. 445.] If the trial court is to be convicted of error for his failure to instruct on all of the law of the case, he ought to be given an opportunity to correct his error by granting a new trial before the expense and delay of an appeal have been incurred.

Formal complaints are lodged as to the rejection and admission of testimony for and against defendant. An examination of the record discloses that not one single objection was made or sustained to any evidence offered by defendant, and that while thirty-six objections to testimony offered by the State were made by defendant, thirty-one of these objections were sustained by the court. To four of the adverse rulings no exceptions were saved to the action of the court, and in the other and remaining one the court was clearly right. The testimony was sufficient if the jury believed it (and the sequel would indicate that they did), to sustain the conviction of defendant; although it cannot be said that the evidence in the case precludes the possibility of the defendant’s innocence. • Almost all of the direct evidence of defendant’s participation as an accessory in the crime charged, came from ex-convicts and accomplices. Touching the credibility of all of these the court gave the necessary precautionary instructions as to the manner of weighing their testimony. All matters and details necessary to prove this offense were abundantly shown by testimony other than that of accomplices, save the specific intent with which defendant happened to be at the scene of the burglary. That he was present is not denied. He admits his presence, but says he was there waiting to catch a street car; one of his accomplices and the witness Harry Brown, a confessed ex-convict, say he was there as a lookout for those engaged in burglarizing the building, and that he gave a signal of the approach of the police officers. As to this signal these witnesses are corroborated by one of the officers. The credibility of these witnesses was for the jury, and not for us. [State v. Maggard, 250 Mo. 335; State v. Concelia, 250 Mo. 411.]

In the above case of State v. Concelia, at page 424, touching the sufficiency of the evidence to take a criminal case to the jury, we said:

“Where there exists upon the record, what has been rather loosely called any ‘ substantial evidence ’ of the existence of a state of facts legally required to be shown, it is our duty to relegate the determination of controverted questions to the triers of fact. The rule is, that before this court will relieve on the ground that the verdict is not supported by the evidence, there must be either a total failure of evidence, or it must be so weak that the necessary inference is, that the verdict is the result of passion, prejudice or partiality.’ [State v. Glalin, 97 Mo. 689; State v. Howell, 100 Mo. l. c. 659.]”

Weighed by this rule, we are not able to say upon the facts as the record shows them, that the evidence does not warrant the verdict found by the jury.

Finding no error meet for reversal, after a painstaking combing of the record in the light of defendant’s motions for a new trial and in arrest, we conclude that the judgment should be affirmed. Let this be done.

Walker and Brown, JJ., concur.


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    THE STATE v. LUTHER MANUEL, Appellant.
    Division Two,
    February 23, 1915.
    1. RAPE: Prejudice. Convictions for sexual crimes committed on children and women are more often obtained on false testimony and prejudice than in any other class of cases, and for that reason courts carefully scrutinize the evidence,’ and where it is unsatisfactory will reverse the judgment. But they cannot ignore the fact that the jury and trial court possess better opportunity for measuring the varacity of the witnesses than does any appellate court.
    2. -: Failure to Call Interested Witnesses. The failure of the State to call the father or brother of the ignorant fourtéenyear-old prosecutrix as witnesses, on the theory that one or the other may have debauched her, is not a sufficient ground for reversing the judgment, where she was not living at home when she caused defendant’s arrest, and there is no evidence that she, her father or brother, or the other, witnesses who befriended her, harbored any ill-will towards defendant.
    3. -: Motive: Sufficiency. The evidence in this case, which fails to reveal any motive on the part of the fourteen-year child, raised in ignorance, filth and poverty, to falsely charge the married defendant with statutory rape, is held sufficient t(D sustain a conviction.
    Appeal from Pulaski Circuit Court. — Eon. L. B. Woodside, Judge..

      Affirmed.

      J. J. Grites and G. L. Morgcm for appellant.
    There is not sufficient substantial evidence to convict the defendant, or support the judgment. State v. Parris, 259 Mo. 435'; State v. Bass, 251 Mo. 126; State v. Donnington, 246 Mo. 354; State v. Young, 237 Mo. 170; State v. Miller, 234 Mo. 588; State v. Tevis, 234 Mo 284; State v. Goodale, 210 Mo. 290; State v. Brown, 209 Mo. 413; State v. Johnson, 209 Mo. 346; State v. Francis, 199 Mo. 671; State v. Gordon, 199 Mo. 561; State v. DeWitt, 191 Mo. 58; State v. Lockhart, 188 Mo. 427; State v. Swisher, 186 Mo. 1; State v. Scott, 177 Mo. 673; State v. Crabtree, 170 Mo. 642; Kelly’s Crim. Law & Prac., sec. 541.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
    (1) Corroboration of the prosecutrix is not essential to sustain a conviction for rape. State v. Stock-house, 242 Mo. 449; State v. Tevis, 234 Mo. 276; State v. Welch, 191 Mo. 179; State v. Ditts, 191 Mo. 665; State v. Day, 188 Mo. 359; State v. Marcks, 140 Mo. 656; State v. Goodale, 210 Mo. 282; State v. Wilcox, 111 Mo. 569; State v. Hains, 150 Mo. 56. (2) The evidence is sufficient to sustain the verdict. State v. Whitesell, 142 Mo. 467; State v. Hunter, 171 Mo. 440; State v. Wilcox, 111 Mo. 570; State v. Dusenberry, 112 Mo. 296; State v, Welch, 191 Mo. 181; State v. Marcks, 140 Mo. 656; State v. Campbell, 210 Mo. 234; State v. George, 214 Mo. 271; State v. Pipkin, 221 Mo. 464; State v. Devorss, 221 Mo. 473; State v. Skillman, 228 Mo. 436; State v. Lovitt, 243 Mo. 510; State v. Stockhouse, 242 Mo. 444; State v. Swain, 239 Mo. 727;, State v. Bowen, 247 Mo. 584.
   BROWN, J.

Defendant, a married man, was convicted of the crime of statutory rape, alleged to have been committed in Pulaski county, in December, 1913, upon one Eliza Bryant, a fourteen year-old girl. His punishment was fixed at five years’ imprisonment in the penitentiary, and he appeals. ■

In his brief defendant relies for reversal solely upon the proposition that the evidence is insufficient to support the judgment of conviction. This assignment calls for a careful examination of the evidence, and we have performed that task with diligence.

The mother of the prosecutrix was dead, at the date of the alleged crime. Prosecutrix lived at Rich-land, Missouri, with her father, Dan Bryant, whose family was then composed of himself, two daughters and two small sons.

Prosecutrix was the only member of her father’s family who was sworn on the part of the State. Her age was proven by neighbors who remembered that at or near the date of her birth her father was arrested on a charge of arson. Her father’s house was so filthy that a physician refused to attend prosecutrix until she was taken to the home of a neighbor and given a bath.

The principal evidence of defendant’s guilt comes from the prosecutrix, who testified that defendant came to her father’s house while she was alone, gave her some whiskey, then threw her on a bed, pulled up her clothes and ‘ ‘ done business with her. ’ ’ That he repeated this act three or four times thereafter. On August 6, 1914, she gave birth to an imperfectly developed child, which died within a few hours. Prosecutrix further testified that defendant was the father of her child, and that no other person did anything improper with her. She admits that she made no complaint of defendant’s wrongful acts and refused for several months to tell anyone who was the father of her child because “she was afraid of her pa.” She stated that defendant told her to “lay it on” another party.

Mrs. Lon Rowden, who lived a block from the Bryant home, and at whose house the child was born to prosecutrix, testified that she saw defendant at Bryant’s in both December, 1913, and January, 1914: that on one occasion he seemed to be trying to slip into the kitchen without being observed by the neighbors.

Mr. Lon Rowden testified that he went to the Bryant home on one occasion and found defendant there lying on a bed apparently drunk. Said witness could not remember the date of this visit, but thought it was in the summer or fall of 1913. Frank Hans, who was constable at Richland during the summer and fall of 1913, stated that on a date he could not remember someone telephoned him from the neighborhood where Bryant lived stating that defendant was down there in a drunken condition, and that, being busy, he sent Lon Rowden down there. Mr. Hans further stated that a few days later he saw defendant and spoke to him about being drunk at Bryant’s, whereupon defendant replied that he was not drunk, but was sick from eating too many blackberries. On account of their failure to fix the dates when they saw defendant the evidence of Mr. Rowden and Mr. Hans is of very little importance.

Defendant was not sworn in his own behalf, but introduced one Laura Bryant, an older sister of prosecutrix, who at the time of the trial was living at the home of defendant’s father-in-law. She testified that she was at her father’s house during December, 1913, all of January, and part of February, 1914, and never saw defendant there during that time. Said witness further stated that she saw prosecutrix in the act of sexual intercourse with her brother Joe, a boy about nine years old. That after prosecutrix became pregnant she told witness that her brother Joe was the father of her child, and that she could not testify to anything else without swearing a lie. Laura Bryant also testified that at defendant’s preliminary examination she heard Mrs. Rowden tell prosecutrix “to swear just as she had told her to swear.” This alleged statement of Mrs. Rowden’s was denied by her, and the conduct and statements of prosecutrix testified to by Laura Bryant were denied by prosecutrix.

Two farmers testified for defendant that he resided on a farm about three-quarters of a mile from the Bryant home and worked for them pretty steadily during December, 1913, and January 1914; their evidence, however, indicates that he, went to Richland a few times during that period. Two other neighbors of defendant testified that they tried to get prosecutrix to tell them who was responsible for her pregnancy, and that she declined to do so, but assured them it was not a married man who was responsible for her unfortunate condition.

There is no evidence that any man except defendant visited the Bryant home in December, 1913, of January, 1914, or that prosecutrix kept company with any man or boy during that period. The evidence indicates that prosecutrix and her father were on friendly terms with defendant up to the time she was confined.

I. Defendant insists that there is not enough substantial evidence to support the judgment of conviction, citing the following eases: State v. Parris, 259 Mo. 435; State v. Bass, 251 Mo. l. c. 126; State v. Donnington, 246 Mo. l. c. 354; State v. Young, 237 Mo. 170; State v. Miller, 234 Mo. 588; State v. Tevis, 234 Mo. l. c. 284; State v. Goodale, 210 Mo. l. c. 290; State v. Brown, 209 Mo. 413; State v. Johnson, 209 Mo. 346; State v. Francis, 199 Mo. 671; State v. Gordon, 199 Mo. 561; State v. DeWitt, 191 Mo. l. c. 58; State v. Lockhart, 188 Mo. 427; State v. Swisher, 186 Mo. 1; State v. Scott, 177 Mo. l. c. 673; and State v. Crabtree, 170 Mo. 642. However, after carefully reading and rereading tbe record we have reached the conclusion that the judgment is supported by substantial evidence. The prosecutrix was subjected to a rather rigid cross-examination, and while she could not remember the month when the alleged crime was committed she did remember that there was a little snow on the ground when she was assaulted by defendant. This evindence tends to support the charge that the crime was committed in the month of December, 1913, as we usually have snow at that season of the year. Her testimony is not self-contradictory. On the contrary, she gave her evidence in a straightforward manner; except she seems to have been rather timid, but not more so than one would expect of a child her age raised in ignorance, filth and poverty. No-motive is shown on the part of the prosecutrix to falsely charge defendant with the crime of which a jury of his county found him guilty, unless it be disclosed by the evidence of her sister, Laura Bryant, who at the time of the trial may have been, to some extent, under the influence of defendant’s friends, as she had deserted her so-called home and was residing with the father-in-law of defendant.

The facts in this case are not like those in State v. Gordon, 199 Mo. 561, and State v. Bass, 251 Mo. l. c. 126, where no one was called as a witness who saw the alleged crimes committed; neither are the facts in this record similar to those in State v. Brown, 209 Mo. 413.; State v. Donnington, 246 Mo. 343; or State v. Tevis, 234 Mo. 276, in each of which cases a motive for a false accusation clearly appeared in the form of a strong desire on the part of the prosecutrix to free herself from the custody of the person charged with the sexual crime. In those cases there was also strong evidence of a general disposition on the part of the prosecutrix to be untruthful. It is undoubtedly true that convictions' for sexual crimes committed upon children and women are more often obtained on false testimony and prejudice than in any other class of cases, and we are justified in scrutinizing the testimony in this class of cases with great care and in reversing judgments where the evidence is wholly unsatisfactory. However, we may not entirely ignore the facts that the jury and trial court possessed splendid opportunities for observing the demeanor of the witnesses while testifying and ought to he better judges of their veracity than we are with nothing hut their printed evidence before us.

It is urged that prosecutrix probably brought this charge against defendant to shield her father and brother, one or the other of whom may have been the guilty party, and neither of whom was called to testify for the State. This is the only real weak spot in the State’s case, but we have reached the conclusion that we are not warranted in reversing the judgment on account of the failure of the State to call the father or brother as witnesses. [State v. Sykes, 248 Mo. 708, l. c. 714.] Prosecutrix was at the home of the Rowdens when she caused defendant’s arrest, and there is no evidence that either the Rowdens, the father of prosecutrix or the prosecutrix herself harbored any ill-will toward defendant. The father of prosecutrix with the prosecutrix had made a friendly visit to defendant just a short while before his arrest.

We have examined all the cases cited by defendant’s resourceful counsel, and many others, but find no satisfactory precedent for reversing the judgment, and it will therefore be affirmed.

Paris, P. J., and Walker, J., concur. '


author: WALKER, J.

text:
    THE STATE v. JAMES UNDERWOOD, Appellant.
    Division Two,
    February 23, 1915.
    MURDER: Sufficient Evidence. There must be a total failure of evidence, or it must be so weak as to justify the conclusion that the verdict is the result of passion or prejudice on the part of the jury, or else the appellate court will not disturb the judgment on the alleged ground of the insufficiency of the evidence. And the evidence of defendant’s guilt being substantial, and the instructions being full, fair and clear expressions of the law applicable to the case under the evidence, and no prejudicial error having occurred during the trial, the judgment fixing defendant’s punishment at twenty years’ imprisonment in accordance with the verdict finding him guilty of murder in the second degree, is affirmed.
    Appeal from Jackson Criminal Court. — Hon. E. E. Porterfield, Judge.
    Affirmed.

      Handy S Swearingen for appellant.
    (1) The court erred in giving instructions 3, 4, 5, 6 and 7 on hehalf of the State. State v. Edwards, 203 Mo. 539; State v. Herrold, 97 Mo. 106; State v. Vaughan, 141 Mo. 514. (2) The court erred in refusing defendant’s instructions A and B. The court undertook to instruct the jury on circumstantial evidence, but we contend that by reason of the fact the court gave an instruction on self-defense over the objection of defendant, the instruction on circumstantial evidence was of no value to the defendant and tended to mislead the jury more than it did to guide them. The defendant denied killing Johnson and the contention of the defendant is that if Johnson was murdered at all, it was after he and Miller left him at the Intercity Viaduct. Our contention is, that when the court gave an instruction on circumstantial evidence and then gave one on self-defense, the two instructions were conflicting and the court committed reversible error; if the blow delivered by the defendant at the house of Daisy Long caused the death of Johnson, then it was error to give instructions on circumstantial evidence; if, on the other hand the blow did not cause the death of Johnson, then it was error to give instructions on self-defense. In State v. Uerrold, 97 Mo. 106, this court said: “When two instructions are conflicting, it cannot be told which the jury took for their guide, instructions should not be given upon which there is no evidence to base them.” Stevenson v. Hancock, 72 Mo. 612; Bluedorn v. Railroad, 108 Mo. 450; State v. Edwards, 203 Mo. 539.

      John T. Barker, Attorney-General, and 8. P. Howell, for the State.
    (1) Where complaint is made that the court erred in admitting or rejecting evidence, and such testimony is not pointed out in the motion for a new trial, or in appellant’s brief, such assignment is not available on appeal. State v. Brown, 168 Mo. 474; State v. Bartlett, 170 Mo. 672; State v. Holden, 203 Mo. 584; State v. Wkitsett, 232 Mo. 529. (2) Where there is any substantial evidence submitted on the trial to support the verdict, this court will not interfere. State v. Howell, 100 Mo. 659; State v. Orr, 64 Mo. 445; State v. Dickson, 78 Mo. 450; State v. Howell, 117 Mo. 346; State v. Lackland, 136 Mo. 32; State v. Miller, 156 Mo. 76; State v. Tettaton, 159 Mo. 380; State v. Barring-ton, 198 Mo. 23; State v. Rumfelt, 228 Mo.' 451; State v. Jackson, 95 Mo. 661; State v. Sassman, 214 Mo. 738; State v. Concelia, 250 Mo. 424. (3) 'Where objection to the instructions given is not made a ground of the motion for a new trial, such error, if any, is not reviewable on appeal. It is urged in appellant’s brief that the court erred in instructing the jury on self-defense and circumstantial evidence.' In view of the fact that no complaint whatever is made in the motion for a new trial to the giving of the instructions on circumstantial evidence and self-defense, this assignment urged in appellant’s brief is not properly preserved to entitle it to consideration on appeal. Under the circumstances of this case the instructions named would not be reviewable for the further reason that they are favorable to the defendant and, therefore, he will not be heard to complain. State v. Brannon, 206 Mo. 636; State v. George, 214 Mo. 267; State v. Foley, 220 Mo. 89; State v. Whitsett, 232 Mo. 529; State v. Connors, 245 Mo. 477; State v. Bostwick, 245 Mo. 486; State v. Foley, 247 Mo. 607; State v. Horton, 247 Mo. 663; State v. Brown, 209 Mo. 413; State v. Woolard, 111 Mo. 256; State v. Shelton, 223 Mo. 138. (4) In instruction number two, the elements constituting murder in the first and second degrees are indicated and the terms “wilful,” “felonious,” “deliberately,” “premeditated,” “malice” and “aforethought” are correctly defined. State v. Myers, 221 Mo. 698; State v. Wright, 134 Mo. 404; State v. Weeden, 133 Mo. 75; State v. Fitzgerald, 130 Mo. 420; State v. Grant, 152 Mo. 66; State v. Tettaton, 159 Mo. 365; State v. Harper, 149 Mo. 521. Instruction number three correctly advised the jury as to the crime of murder in the first degree. State v. Thomas, 78 Mo. 337. In instruction number four the elements necessary to constitute murder in the second degree are correctly stated. State v. Wilson, 95 Mo. 447; State v. McCarver, 194 Mo. 728; State v. Myers, 221 Mo. 614. Instruction number five properly stated the facts that must be shown by the evidence in order to find the defendant guilty of manslaughter in the fourth degree. State v. Hyland, 144 Mo. 302; State v. Thomas, 78 Mo. 327; State v. Heath, 237 Mo. 270. In instruction number six the character of the evidence by which the intent to commit a criminal act may be shown is announced. State v. Merker, 189 Mo. 320. Instruction number seven on the proof or failure of proof of motive is in an approved form. State v. Duestrow, 137 Mo. 74; State v. Barrington, 198 Mo. 23; State v. David, 131 Mo. 396. Instruction number eight is an approved instruction on presumption of innocence and reasonable doubt. State v. Knock, 142 Mo. 524; State v. Hudspeth, 159 Mo. 208; State v. Neustin, 25 Mo. 123; State v. Cushenherry, 157 Mo. 182. In instruction number nine, the cffeumstantial evidence rule is announced. State v. Bauerle, 145' Mo. 16; State v. Tettaton, 159 Mo. 367; State v. Taylor, 134 Mo. 151; State v. David, 131 Mo. 398; 21 Cyc. 1032. In instruction number ten the law as to the right of self-defense is correctly anounced. State v. McCarver, 194 Mo.. 729; State v. G-roves, 243 Mo. 550; State v. Lewis, 248 Mo. 508. In instruction number eleven the rule as to credibility of witnesses is properly stated. State v. Iiicks, 92 Mo. 434; State v. Henderson, 186 Mo. 492; State v. Hudspeth, 159 Mo. 200.
   WALKER, J.

An information was filed by the prosecuting attorney in the criminal court of Jackson county charging defendant with murder in the first degree in having killed one Joseph Johnson in Kansas City on the night of October 8, 1913. Upon a trial the defendant was convicted of murder in the second degree and his punishment assessed at imprisonment in the penitentiary for a term of twenty years. Prom this sentence defendant has perfected this appeal.

On the night of October 8, 1913, the deceased, a farmer from the State of Kansas, went, in company with two or three others, at about 12:30 o’clock a. m., in defendant’s automobile, the latter being a chauffeur operating a machine for hire, to a house of prostitution. As they came in one of the girls heard the defendant say to the keeper of the house that he had brought “a bunch that had plenty of ‘jack,’ ” meaning money. They remained' at the house probably half an hour, took several rounds of drinks, and then went away in the defendant’s machine. Half an hour or an hour later defendant returned with the deceased, the latter being almost helpless from the effects of liquor. After they had gone to the room of one'of the girls they were served with beer, but the deceased was so drunk that he was unable to hold his glass and it was taken from him by the girl. The woman who kept the house was named Daisy Long. In payment for the drinks the deceased gave her a five dollar bill, which she kept, giving him no. change, and immediately left the room. Defendant left the room with her, but returned in a few minutes and demanded a dollar from the deceased for bringing him to the house. The deceased searched his pockets and declared hé had no money but had been robbed. The defendant denied this, adding, “You will pay me you s— of a b-or I will kill you.” The deceased reached for his hat, when defendant struck him over the head with either a gun or a “black-jack.” The latter is explained to be an instrument used by criminals in the nature of a loaded piece of hose or other soft exterior substance filled with lead, iron or other metal, and causes no abrasion of the outer skin when a blow is struck with it. The blow felled the deceased to the floor. Immediately thereafter Daisy Long, the keeper of the house, entered and held a hurried inaudible conversation with defendant, and again left the room. As she went out defendant pushed Marie Haley, in whose room they then were, against the door and, thrusting a gun into her face, said, “Don’t you say anything about this or I will kill you.” He then left the room and Marie Haley ran out into the hall and screamed, “Oh my God, somebody come up and get this man [deceased], he is dying.” In answer to this call, Daisy Long and a creature named Rats Miller with whom she was then living, rushed into the room, followed by a negro maid and another inmate of the house. The mat'd and the girl who had just entered procured water and washed the blood from the head and face of deceased, and assisted by Rats Miller, laid him on the bed. The deceased at the time was either in a semi-conscious condition from drink or the effects of the blow, and groaned as he rolled from side to side. Daisy Long then said to the defendant, “What shall we do with him [meaning the deceased]?;” to which the defendant replied, “I will take him and dump him some place.” Marie Plaley asked the defendant if he would kill anybody, and he replied that it was an every night occurrence with him. Daisy Long then said to the defendant, “Jimmy, don’t go away, come back and take this man from my house.” Rats Miller and the defendant and a man named Red Anderson who had been visiting the house carried or assisted the deceased downstairs to the automobile, which was standing before the entrance. Several persons who witnessed the removal of the deceased from the house, state that he was so helpless from loss of blood or drink, that it was necessary for the defendant and Miller to catch him by the shoulders and practically carry him downstairs. He was placed in the automobile, Miller took a seat by his side, the defendant cranked his machine and started away going west on Sixth street towards the bluffs. It was then about 1:30 o ’clock in the morning, or possibly later; the negro maid testified that it was two o ’clock. An hour or more thereafter the defendant and Rats Miller returned to the Long house and were admitted by the negro maid. The defendant stayed but a short time, but Miller remained during the balance of the night.

About seven o’clock that morning, two police officers in the vicinity of Sixth and Bluff streets, looking down from the Interstate Viaduct, saw the body of a man lying at the foot of the retaining wall about fifteen feet from the edge of the viaduct. The body was lying eight or ten feet from the foot of a retaining wall which extended from the bottom of the cut to where the officers were, a height of about forty-six feet. Along the upper edge of this bluff or cut was a fence four feet high at the point where the officers stood when they discovered the body. It was resting on some iron pipes which enclosed signal wires, near to and parallel with railroad tracks laid along the centre of the cut. Examining the body, a cut was found on top of the head; the face was bruised, the abrasion being filled with cinders; the eyes were blackened and swollen, and the left leg was crushed or thrown out of joint. Other officers reached the scene soon afterwards who corroborate the statements made by those who discovered the body. Midway between the edge of the bluff and the bottom of the cut there was a shelf or projection immediately beneath which the body was lying. The officers found that the earth which had accumulated on this shelf had been partially brushed off or disturbed as though an object thrown from above had struck on the shelf. Fresh earth below in the cut near the body was of the same character as that on the shelf. There was no blood on the body and but a small spot of the circumference of a silver dollar where the head was lying. A post mortem examination disclosed cuts near the right eye; the left corner of the lower lip was torn; the left side of the face was scarred; the nose was broken and there were multiple fractures on the posterior of the skull. The left leg was broken and the bone stuck up against, but did not protrude through, the outer skin. There had been no recent hemorrhages from these wounds and the physicians who conducted the post mortem gave it as their opinion that the abrasion and fracture occurred after death, that if produced by the fall the wounds would have bled and evidence thereof have been found where the body was lying. In the opinion of these witnesses death was caused by the multiple fractures of the skull, the injury on the side of the head or face being a contributing cause; that these wounds .appeared to have been inflicted by something like a “blackjack.” In the pockets of the deceased was found the business card of the defendant, “Jas. Underwood, chauffeur. ’ ’ After the post mortem the body was taken to an undertaker’s, where it was identified by several girls from the Long house as that of the man who was taken therefrom in an automobile by the defendant and Rats Miller the night before. Defendant, upon being taken to the undertaker’s and shown the body, said he had never seen the man before.

The defendant and Rats Miller were the principal witnesses for the defense. The defendant testified that he took deceased and three or four others to Daisy Long’s house on the night of October 8, 1913. After spending a half an hour or more there he took them to a saloon at Thirteenth and Main streets, Kansas City. Leaving them there he returned with the deceased to Daisy Long’s. The deceased proposed that defendant take him and some of the girls to St. Joseph, but the plan was abandoned and defendant asked the deceased for a dollar car fare he claimed the latter owed him. Johnson claimed he did not owe the bill and reached back towards his pocket, when defendant struck him with his revolver, felling him to the floor. In this and other respects defendant’s testimony differs materially from that of the State’s witnesses, viz.: that he struck the deceased at Daisy Long’s because he apprehended from the motions of the latter that he was about to draw a weapon; that the deceased was not carried or assisted out of the house and into the automobile, but walked out and entered the machine of Ms own accord; that deceased was boisterous and abusive, and that neither he nor Miller touched him or offered him any violence, but, presuming that he wanted to go to St. Joseph, stopped near the Wabash Railway freight station, when the deceased got out of the automobile and walked away; .that defendant did not recognize the body of deceased at the undertaker’s because the face was so disfigured and swollen that it bore no resemblance to the man as he recalled him when he had taken him from Daisy Long’s.

Defendant is in the main corroborated as to matters occurring while they were together by Rats Miller. The jury did not believe their testimony.

I. Sufficiency of Evidence. The jury found the evidence ample to sustain the verdict. We have reviewed it, and find no such lack of substantial proof of guilt as to authorize us in reversing the judgment. Under this state of facts the reiterated rule may be properly invoked that there must either be a total failure of evidence or it must be so weak as to justify the conclusion that the verdict was the result of passion or prejudice, or it will not be disturbed. [State v. Concelia, 250 Mo. 411; State v. Rumfelt, 228 Mo. 443; State v. Sassaman, 214 Mo. 695; State v. Barrington, 198 Mo. 23.]

' II. Instructions Given. The court gave eleven instructions, covering murder in the first degree, murder in the second degree, manslaughter in the fourth degree, defining the intent with which a criminal act is done, stating’ how motive or want of motive is to be considered, defining the presumption .of innocence and reasonable doubt, how circumstantial evidence should be considered, what constitutes self-defense, that the jury are the judges of the weight of the evidence and the credibility of the witness and how the testimony is to be considered. These instructions were full, fair and clearly expressed the law applicable to the case under the evidence. They conform to precedents which have received the approval of this court in a large number of cases. They were, in short, all that defendant could have demanded to properly instruct the jury as to his defense. For cases containing approved precedents for the instructions given, see the respondent’s brief.

III. Instructions Refused. The court ruled properly in refusing the instructions asked by defendant. The first, because not authorized by the evidence; and the second, because instructions given by the court properly declared the law as to circumstantial evidence and reasonable doubt. We have reviewed with care every point properly preserved which has been urged by industrious counsel for defendant to sustain a reversal. None urged are sufficient. The guilt of defendant having been established to the satisfaction of the triers of the facts, and no prejudicial error having occurred during the trial, the judgment should be affirmed, and it is so ordered.

All concur.


text:
    THE STATE v. TONEY GEORGE, Appellant.
    Division Two,
    February 23, 1915.
    RECEIVING STOLEN GOODS: Embezzlement. A defendant cannot be convicted of the crime of receiving stolen goods knowing them to have been stolen, on testimony showing the goods were not stolen, but were embezzled by the driver of the transfer wagon from whom defendant bought them, and were so embezzled after they had been lawfully delivered into said driver’s possession by the railroad company which hauled them.
    Appeal from Jackson Criminal Court. — Hon. Ralph 8. Latshaw, Judge.
    Reversed and remanded*.

      Jospeh F. Aylward for appellant.
    (1) Defendant having bought and received the cigars in question from George Winn, who was lawfully in possession thereof as the agent and servant of the Kansas City Transfer Company, his offense, if any, was that of having received embezzled property knowing the same to have been embezzled and his conviction for receiving stolen property, knowing the same to have been stolen, cannot stand. State v. Casey, 207 Mo. 1; State v. Fink, 186 Mo. 50; State v. Ginnusa, 258 Mo. 273. (2) The evidence is insufficient to sustain the conviction.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
    The information properly charges the crime of receiving stolen property. Sec. 4454, R. S. 1909; State v. Smith, 250 Mo. 364; State v. Guild, 149 Mo. 374; State v. Fink, 186 Mo. 52; State v. Kasky, 191 Mo. 10; 34 Cyc. 521. (2) The verdict is responsive to the issues and proper in form. State v. Smith, 250 Mo. 364; State v. Richmond, 186 Mo. 83; State v. McGee, 188 Mo. 412; State v. Smith, 190 Mo. 728; State v. King, 194 Mo. 484.
   BROWN, J.

Charged with receiving 22,500 cigars of the value of $170 knowing the same to have been stolen, defendant was convicted in the criminal court of Jackson county, Missouri, and his punishment fixed at two years in the penitentiary, and he appeals.

There is no evidence in the record tending to prove that the cigars which defendant received were stolen. On the contrary the evidence tends to prove the following facts: that the cigars were shipped to the Parker-Gordon Cigar Company at Kansas City over the Chicago, Rock Island & Pacific. The Kansas City Transfer Company, hereinafter designated as the “Transfer Company,” had authority from the Parker-Gordon Cigar Company to receive all of its freight and to do its hauling. The Transfer Company employed one George Winn and sent him out with a wagon to haul freight for it. The railroad company delivered the cigars to Winn as an employee of the Transfer Company upon what the agent -described as an “identification sheet,” issued by the Transfer Company. After thus lawfully obtaining possession of the cigars Winn claims to have sold them to defendant for $100. There was another party riding on the transfer wagon who seems to have been interested in the embezzlement or misappropriation of the cigars, but that fact does not alter the situation. Such other party did not have possession of the cigars.

It will be seen that the legal effect of the evidence in this case is precisely the same as in the recent case of State v. Gennusa, 258 Mo. 273. Under the ruling in said Gennusa case, and the authorities therein cited, we are forced to hold that defendant’s acts (if satisfactorily proven) constituted the crime of receiving embezzled goods, and not the crime of receiving stolen goods. Therefore, defendant was convicted of a different crime than the one charged against him, and his motion for new trial should have been sustained on the ground “that the evidence is insufficient to support the verdict.”

The judgment will be reversed, but, as the State may have evidence upon which to prosecute the defendant on some other charge, the cause will be remanded. It is so ordered.

Faris, P. J., and Walker, J., concur.


text:
    THE STATE ex rel. R. L. BUCK, Collector of Revenue of Scott County, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant.
    Division Two,
    February 23, 1915.
    1. SCHOOL DISTRICT: in Towns: Coterminous With City Limits. The limits of a town or city school district need not be precisely coterminous with the city limits in order that a tax in excess of sixty-five cents on the one hundred dollars’ valuation may be levied upon the property in the district for school purposes.
    2. SCHOOL TAX: In Excess of Sixty-five Cents in Town Districts: Constitutionality of Statute. A school district which embraces a city of the fourth class, or an incorporated town or village, and also territory lying outside the city or village limits, known, by Sec. 10825,- R. S. 1909, as a “town school district,” may levy a school tax on all the property embraced therein in excess of sixty-five cents on the one hundred dollars’ assessed valuation, when a majority of the voters who are taxpayers vote for said increase. The fact that said district embraces territory lying outside- of the city limits does not make such excess invalid, nor bring the statute authorizing it (Sec. 10864, R. S. 1909) in conflict with the words of section 11 of article 10 of the Constitution, declaring that “the aforesaid annual rate for school purposes may be increased, in districts formed of cities and towns, to an amount not to exceed one dollar on the hundred dollars’ valuation, and in other districts to an amount not to exceed sixty-five cents,” when authorized by a majority of the voters who are taxpayers.
    3. SCHOOL DISTRICT: Formed of Cities and Towns: Meaning. The words “formed of cities and towns” found in section 11 of article 10 of the Constitution of 1875, do not mean “formed exclusively of cities and towns,” or a school district whose boundaries are precisely the same as those of the city or town. This is manifest from the language and decisions in force when the Constitution was adopted, which declared that a school district which embraced a city or town might embrace and include outside territory.
    Appeal from Scott Circuit Court. — Hon. Frank Kelly, Judge.

      Affirmed.

      W. F. Evans, Moses Whyba/rk and A. P. Stewart for appellant.
    (1) The right to levy not to exceed one dollar on the hundred dollars valuation, for school purposes, is limited to such school districts as are formed of cities and towns; and the Legislature exceeded such constitutional limitation when, in 1909, it passed the act authorizing a levy, for school purposes, of not exceeding one per.centum in “town school districts,” that is, districts composed of a city, town or village, with attached territory outside of the boundaries of such city town or village. Such “town school districts,” unless formed exclusively of a city or town, are limited to a levy for school purposes of not exceeding sixty-five cents on the hundred dollars valuation. Constitution, art. 10, sec. 11; Sec. 10825, R. S. 1909; Laws 1909, 770, 807, sec. 97. (2) Sec. 10825, R. S. 1909, in so far as it authorizes a levy for school purposes of not exceeding one per centum in “town school districts,” without confining such right to districts formed of cities or towns, contravenes- the provisions of section 11 of article 10 of the Constitution. A statute may be valid in part and void in part. State v. Addington, 12 Mo. App. 218; State v. Clark, 54 Mo. 17; State v. Bockstruck, 136 Mo. 353; State ex rel. v. Pond, 93 Mo. 635; State ex rel. v. Taylor, 224 Mo. 393; State ex rel. v. Gordon, 236 Mo. 142; State v. Distilling Co., 236 Mo. 219; Bank v. Ref. Co., 236 Mo. 407. (3) School districts Nos. 2, 3, 9, 27, 35 and 54, in Scott county, being each composed of cities or towns and adjacent rural territory, had no authority to levy in excess- of sixty-five cents on the hundred dollars for school purposes; and the county court, in ascertaining the average rate levied for school purposes, had no authority to include the excess rates levied by said districts over and above tbe constitutional limit of sixty-five cents. When the increase over forty cents is authorized by vote, such rate so increased is as much a limit prescribed by the Constitution as if inserted therein; and the rates levied in excess of such limit are invalid. Railroad v. Lamldn, 97 Mo. 503.

      John T. Barker, Attorney-General, and Ernest A. Green, Assistant Attorney-General, for respondent.
    (1) Sec, 10825, R. S. 1909, authorizing a levy for school purposes of not exceeding one per centum in town school districts does not contravene the provisions of section 11 of article 10 of the Constitution, even though the town school districts has territory outside the corporate limits of the town or- city included therein. State ex rel. v. Wilson, 45 Mo. 458; State ex rel. v. Searl, 50 Mo. 268; State ex rel. v. Board of Ed. Appleton City, 53 Mo. 127; State ex rel. v. Heiser, 60 Mo. 540; State ex rel. v. Board, 64 Mo. 53; State ex rel. v. Board of Education, 65 Mo. 587; State ex inf. v. Henderson, 145 Mo. 329; Art. 8, chap. 143, R, S. 1855; chap. 47, G. S. 1865; Art. 2, chap.. 123, Wagner’s Statutes, 1872; Sec. 1, p. 1241, 1262, Wagner’s Statutes, 1872. (2) The single question presented is whether the classification in the Constitution of school districts into “districts formed of cities and towns” is to be limited, i. e., amended by adding the word “exclusively,” which is not found in the Constitution, but which must be added by judicial construction. We submit this cannot be done. State ex rel. v. Gammon, 73 Mo. 422; Henry & Coatsworth Co. v. Evans, 97 Mo. 55; State ex rel. v. Corbins, 123 Mo. 67; Clark v. Railroad, 219 Mo. 534.
   PARIS, P. J.

Suit by the collector for the aggregate amount of taxes above an alleged maximum of sixty-five cents on the one hundred dollars valuation, levied in six school districts of Scott county, for school purposes. The collector had judgment and the defendant appealed.

The case is here upon an agreed statement of facts. As stated, six school districts are involved, but the facts are precisely similar as to each, and one may be taken in our statement as a type for all. The, below excerpts from the agreed facts indicate plainly the point of controversy, viz:

“It is hereby agreed, by and between the parties to the above entitled cause, by their respective attorneys, that the evidence in this cause would show the following facts, which are agreed to be true:
“1. That the total value of the property of the defendant in Scott county, Missouri, subject to taxation for state, county, school and other purposes, is $590,834.90. That there was- assessed and levied against such property for the year 1911, for state, county and school taxes to the aggregate sum of $8929.19. That of the taxes so assessed and levied, all have been paid, except the sum of $131.34, of the taxes assessed for schools.
“2. That in school district number 2, Scott county, taxes for school purposes were assessed and levied at the rate of eighty-five cents on the one hundred dollars valuation, being twenty cents in excess of sixty-five cents on the one hundred dollars.
“3. That the taxes sued for herein, amounting to $131.34, are taxes for school purposes in the above numbered and described school district, in Scott county, Missouri, extended on said assessed valuation of $590,834.90, at the excess rate over and above the rate of sixty-five cents on the one hundred dollars in said school districts respectively.
“4. That none of said school districts, numbers 2, 3, 9, 27, 35 and 54 in Scott county, Missouri, aforesaid, is formed exclusively of a city, or town, but each and every one of said school districts aforesaid, include territory outside the limits of cities and towns within the boundaries of said school districts, respectively; that each of said above numbered and described school districts was organized under and by virtue of the provisions of article 4, chapter 106, Eevised Statutes 1909.”

Defendant by its answer properly raised the constitutional questions discussed in our opinion, and upon the submission of the case upon the agreed facts, offered a declaration of law that under the law and the facts the judgment should be for defendant. This declaration the court refused and defendant excepted.

We apprehend that the above facts, eked out by our own restatement of the contentions made, will make sufficiently clear the points discussed in the opinion.

OPINION.

I. Defendant says in its brief that it no longer calls in question the constitutionality of section 10864, but that the contention it urges is that section 10825 is unconstitutional. The latter section simply empowers the county clerk to levy upon all property in a “town school district,” not to exceed (even when so authorized inferably by a vote), one per centum for school purposes. [Sec. 10825', E. S. 1909.]

Turning to section 10775', which defines, or classifies, the various kinds of public schools and public school districts in this State, we find that by statute a “town school district” is a district “governed by six directors and in which is located any city of the fourth class, or any incorporated town or village.” Clearly this is the identical district referred to in the agreed facts. So we need not concern ourselves with the question of the right to organize, or the .constitutional validity of the organization of “a consolidated school district,” merely for that it has two hundred or more children of school age and elects to avail itself of the provisions of section 10864, or of any other sort of districts, except town districts.

As a matter of course, if as allowed by section 10864, a town district may have attached to it for school purposes contiguous outlying territory beyond the city limits, and yet be allowed by section 11 of article 10 of the Constitution to vote a levy of taxes for school purposes in excess of sixty-five cents on the one hundred dollars’ valuation, then section 10825 is not invalid. As we see it, therefore, the concrete question is whether a town district may be organized with contiguous territory beyond the town or city limits attached thereto, as provided in section 10864, and yet be permitted to levy taxes at the rate prescribed in the section, supra, of the Constitution for school districts “formed of cities and towns.” [Sec. 11, art. 10, Cons. 1875.]

II. Reducing for the purposes of this discussion, the contention of appellant to its last analysis, does section 11 of article 10 of our Constitution, which fixes the maximum amount of taxes which may be levied upon each one hundred dollars’ valuation at sixty-five cents, except “in districts formed of cities and towns,” require that the limits of such city or town school district be precisely coterminous with the limits of the incorporated town or city, and unless school district limits are exactly coterminous with the town limits and no outside contiguous territory is attached, can the district legally levy more than sixty-five cents taxes on the one hundred dollars’ valuation for school purposes'? If it cannot, section 10864 is in a way unconstitutional, and in every aspect useless, since said section plainly provides for the attachment of contiguous territory lying outside of the town or city limits, and since if such territory cannot he attached to a town or city school district, there is no taxing distinction or even any useful difference remaining as between such a district and the ordinary country school district.

Must then the limits of a town or city school district (called hereinafter for brevity a town district) he precisely coterminous with the city limits in order that more than sixtv-iive cents on the one hundred dollars’ valuation may be levied therein for school purposes'? If section 11 of article 10 of the Constitution means that no contiguous country territory may be attached, then section 10864 is invalid. The pertinent part of that section of the Constitution reads thus:

“For school purposes in districts composed of cities which have one hundred thousand inhabitants or more the annual rate on property shall not exceed sixty cents on the hundred dollars’ valuation and in other districts forty cents on the hundred dollars’ valuation : Provided, the aforesaid annual rates for school purposes may he increased, in districts- formed of cities and towns, to an amount not to exceed one dollar on the hundred dollars’ valuation, and in other districts to an amount not. to exceed sixty-five cents on the hundred dollars’ valuation, on the condition that a majority of the voters who are taxpayers, voting at an election held to decide the question, vote for said increase.”

This section of the Constitution was amended at the general election in 1902, by striking out of the Constitution of 1875 the words “the annual rate on property shall not exceed,” and by inserting at the place of and in lieu thereof the words which we italicise in the above excerpt from the Constitution. [Laws 1901, p. 266.]

It is manifest that section 10864 contemplates the attaching and grants the privilege of attaching to a town district contiguous territory outside the city limits. This is made apparent by the permission given in the first two lines thereof to 'erect a town district out of “any common school district containing within its boundaries” a platted city, town or village; as likewise by the provision in the closing sentence of said section which provides for the attaching to a town district of “such territory outside the corporate limits as may, by the creation of the new district, be cut off from the district or districts to which it originally belonged.”

We are brought to a construction of the meaning of the words of the Constitution “formed of cities and towns.” If this means “formed of cities and towns exclusively,” then a district having within its boundaries a platted city, town or village, but likewise some contiguous territory outside of the city limits could levy (though it was under the statute, section 10864, supra, a town district, and though it called itself such), at most, but sixty-five cents taxes on the one hundred dollars ’ valuation for school purposes. Turning to the dictionary — the referee of disputes as to the usual and ordinary meaning of words — we find that in the sense used the verb “form” means “to go to make up; to be an element, or constituent of” [Century Dictionary]; “to be the essential or constiuent elements of; said of that out of which anything is formed' or constituted, in whole or in part.” [Webster’s Int. Die.] It is fundametnal that in construing the language of a Constitution the words used, unless they are technical, are to be understood in their usual and ordinary sense. [Cooley’s Con. Lims. (7 Ed.) 92.]

Unless then we supply following the words “formed of cities and towns,” some such word as “wholly,” or “entirely,” or “exclusively,” we are not able to get from the definition in the dictionary very much authority for the view that the use of the participle “formed” connotes the idea of exclusiveness. In facts these definitions point the weight of the argument the other way. Besides, section 11 of article 10 came into the Constitution in 1875. Town and city districts, with attached outlying, contiguous country territory beyond the city limits, were then in existence. [2 Wagner’s Statutes (1872), sec., 1, p. 1262.] The very first sentence of the above section provided that “any city, town or village, the plat of which has previously been duly filed and recorded in the recorder’s office of the county wherein the same is situate, together with the territory attached, or which shall hereafter be attached, to any such city, town or village for school purposes, may be organized into and established as a single school district.” [See also Sec. 1, p. 1241, 2 Wagner’s Statutes (1872).] A very similar provision was in the statute even earlier. [Sec. 1, p. 256, G. S. 1865.] While being mindful that by the express terms of our Constitution (Schedule to Constitution, sec. 1) existing laws in conflict with the provisions of our Constitution were automatically repealed, no such conflict here exists and no such necessity for such repeal is, as we have seen, to be deduced from any language used by the makers of the Constitution; but per contra, the language used evinces a contrary intention. We must attribute to the makers of the Constitution knowledge that a town or city school district then had, or was then by law permitted to have, outlying contiguous territory beyond the city limits attached to it “for school purposes.”' The query is pertinent then, whether, if the Convention had in mind such limitation of town and city school districts as to forever require the limits thereof to be coterminous with the city limits, they would not have said so in no uncertain terms instead of using a word which as we have seen from its definition, is at most merely ambiguous. Much weight is lent to this view by the fact that section 1, page 1262, of Wagner’s Statutes, supra, had been in 1873 and prior to the adoption of . the Constitution of 1875, construed unequivocally as conferring the power upon a city school district to annex for school purposes contiguous territory beyond the city limits. [State ex rel. v. Board of Education of Appleton City, 53 Mo. 127.] In the above case Wagner, J., who delivered the opinion of the court, said:

“The voters of the town, and also those inhabiting the outside district, participated in the election on the adoption of the law, and in the choice and selection of trustees; but it is now insisted that there was no authority for attaching or annexing any territory not included within the corporate limits. The statute above referred to declares that ‘any city, town or village, the plat of which has previously been duly filed and recorded in the recorder’s office of the county wherein the same is situate, together with the territory attached, or which shall hereafter be attached, to any such city, town or village for school purposes, may be organized into, and established as a single school district. ’ It would seem obvious enough from the reading of this statute, that it was not intended to confine the land to the territory attached to the town in its corporate capacity. The language is, ‘the territory attached, or which shall hereafter be attached to any city, town or village, for school purposes. This clearly contemplates, that territory outside of the town limits may be taken-in and attached for school purposes as convenience may require whenever 'the people interested may so desire. It then becomes dis-annexed from the former school district, and constitutes attached territory in the sense of the law.”

To like effect in their general trend are also the cases of State ex rel. v. Heiser, 60 Mo. 540; Sharp v. Miller, 65 Mo. 53; State ex rel v. Mayview Bd. of Education, 65 Mo. 587; State ex rel. School District v. Bd. of Education of Appleton City, 64 Mo. 53 ; Henry v. Dulle, 74 Mo. 443. While several of the above cases were decided after the Constitution of 1875 took effect, yet it is fairly plain that they all dealt with fixed conditions arising prior to the adoption of the last Constitution. They yet clearly show the interpretation which the courts were putting upon the matter of attaching outlying territory to a city district for school purposes before, at the time of, and after the adoption of the Constitution.

The precise attack here made does not appear ever to have been made before. Eor almost fifty years, during the periods of protection of two constitutions, bench, bar and laymen seem to have acquiesced in the view that the attaching of country territory to a city school district for school purposes is permissible by the Constitution, and further that such school districts so composed may, on condition of an authorizing vote, levy as much as one hundred cents on the one hundred dollars’ valuation for school purposes. This point was under discussion in the case of State ex inf. v. Henderson, 145 Mo. l. c. 336, where it was said as late as 1898, that:

“The industry and research of counsel have brought into juxtaposition the various statutes tending to show the policy of the State generally to be to make the school districts of cities coterminous with the limits of the several cities; still it is obvious that the exceptions- to this general policy are just as marked, and that outlying country districts are attached to cities for school purposes, and whatever its boundaries, a school district is a distinct corporate entity, performing its own peculiar function, independently of the municipal corporation within the same confines. We agree with the learned circuit judge who tried this cause that plaintiff’s contention, that the existence of the city is a condition precedent to the formation of a school district of the kind now under consideration, is correct, but it does not follow that when organized it may not have territory outside of the city attached. While it is probably the correct view that all the territory within the city limits at the date of the organizaion must be included under the present law, it may also include other territory.”

Therefore, being mindful of the rule which forbids us to declare a statute unconstitutional unless it so appears to be beyond a reasonable doubt (State v. Baskowitz, 250 Mo. 82), we are constrained to hold that so much of the section of the statute which allows a town school district to attach or have attached to it outlying country territory for school purposes, pursuant to the provisions of said section, is not unconstitutional. It follows we think and we so hold, that a town school district as classified by the third subdivision of section 10775, and as such district is defined by section 10864, may lawfully levy as much as one hundred cents on the one hundred dollars valuation as taxes for school purposes. This view we reach without the necessity of falling back upon the arguMentvm ah inconvenienti; for the contrary view applied to the conditions as we know them now to exist would be utterly destructive, because of the fact that there is scarcely a town school district in the State outside of cities of 100,000 inhabitants or more, but which has some outlying contiguous territory attached to it, to the great mutual profit and convenience of both city and country.

Other considerations press themselves upon us, but we are thoroughly convinced that the view taken by the learned trial judge was correct, and that the judgment rendered by him. should be affirmed. Let this be done.

Walker and Brown, JJ., concur.


author:
WILLIAMS, C.
      PEE CUEIAM.

text:
    THE STATE ex rel. M. N. WHELCHEL et al., Appellants, v. W. C. CLAXTON et al.
    Division Two,
    February 23, 1915.
    SCHOOL DISTRICT: Lapse: Failure to Provide Eight Months’ School: Quo Warranto. To provide for an eight months’ school under Sec. 10776, R, S. 1909, is not merely to levy and collect the necessary money but also to hire a teacher, provide a school house, etc., for an eight months’ term, and where only the first of these steps is taken, the school district, by force of the same section, shall be deemed to have lapsed as a corporate body, its territory shall be deemed and taken as unorganized, and its directors will be ousted in a proceeding in the nature of quo warranto brought at the relation of resident tax-paying citizens of the district.
    Appeal from Wright Circuit Court. — Hon. G. H Skinker, Judge.
    Reversed and remanded (with directions).

      E. B. Garner for appellant; Lamar, Lamar & Lamar and E. H. Farnsworth of counsel.

      Perry T. Allen for respondents.
   WILLIAMS, C.

This is a proceeding in the nature of a quo warranto instituted by the prosecuting attorney of Wright county, Missouri, in the name of the State at the relation of M. N. Whelchel et al., to oust the defendants from exercising the functions of school directors of School District number 63 of said county. Trial was had in the circuit court of Wright county, resulting in a judgment for the defendants. Thereupon an appeal was duly perfected to this court.

The case was tried upon an agreed statement of facts. From the stipulated facts it appears that relators are resident tax-paying citizens of School District number 63 in Wright county, Missouri, and that, on December 2, 1912, the time of the institution of the suit, the defendants were performing the offices of school directors of said school district.

It further appears that for the school year beginning July 1, 1911, and ending June 30, 1912, a levy of forty cents on the hundred dollars’ valuation was made, which, together with public funds and cash on hand, provided sufficient funds to enable said district to have eig’ht months ’ school in said school year, but that only five months ’ school was had in said district during said year. It was further admitted that the failure to have said eight months’ school in said year did not result from irregularity or void proceedings had for that purpose.

It is contended by appellant that under the facts shown, the failure of said school district to have eight months’ school in the school year beginning July 1, 1911, caused said district to lapse “as a corporate body, and the territory theretofore embraced within such lapsed district” to become “as unorganized territory,” etc., under the provisions of section 10776, Revised Statute 1909. And further, that since said school district had lapsed as a corporate body, the respondents were unlawfully attempting to exercise the functions of school directors, and that the court erred in failing to enter judgment of ouster against said respondents.

The decision of the case involves the construction of said section 10776. That section provides that, “Whenever any school district in this State . . . shall fail or refuse, for the period of one year, to provide for an eight months’ school in such year, provided a levy of forty cents on the one hundred dollars ’ valuation, together with the public funds and cash on hand, will enable them, to have so long a term, the same shall be deemed to have lapsed as a corporate body, and the territory theretofore embraced within such lapsed district shall be deemed and taken as unorganized territory, etc.

What does the clause “provide for an eight months’ school,” as used in said statute, mean? That is the main question lodged in this appeal. If it is merely to provide the money necessary to pay the expenses of an eight months’ school by making the levy of forty cents on the hundred dollars’ valuation, then the school district did not lapse, because in the present instance such a levy was made and the necessary money thereby provided. If, on the other hand, it means that the school district must not only take the required steps to provide the revenue but must also take such other action as shall provide a teacher, schoolhouse and fuel for the eight months, then the school district in the present case became lapsed because only five months’ school was provided or had during the year in question. We have not been favored with a brief by respondents and are therefore at a loss to know the grounds urged by them in justification of the trial court’s ruling. But it does appear from the record, by the court’s action in refusing the appellant’s declaration of law, that the learned trial judge was of the opinion that the clause above quoted only meant that the school district should provide the required funds. We are unable to agree with that construction. It will not do to say that an eight months’ school has been provided for when only the money necessary to pay the cost of the school has been levied and collected. That is only one step in the right direction. The other steps are the providing or supplying of a teacher and a necessary and suitable schoolhouse and incidental equipment during the entire eight months’ school. The clear intendment of the statute is to compel, under penalty of losing its corporate existence, every such school district to have an eight months’ term of school whenever the revenue prescribed, together with the funds on hand, will pay the necessary expenses of such a term, unless such district is saved or excused by reason of one of the provisos or exceptions mentioned in the statute. None of the exceptions mentioned in the provisos of said statute exist in the case at bar. The State would certainly have little interest in requiring that revenue- necessary for an eight months’ term be levied and raised unless the money so raised was also required to be used in supplying the required eight months’ term. If the clause read, “provide the necessary funds for an eight months’ school,” instead of the clause which is used, •to-wit, “provide for an eight months’ school,” then there might be ground for the construction evidently given to the section by the trial court. But since the clause requires that the district “provide for an eight months’ school,” we are unable to see how the statute can be said to have been complied with, under the facts in the present case, unless an eight months’ school is actually had.

It therefore follows that, for the reasons stated above, said school district “lapsed as a corporate body” and that thereupon the respondents lost their official powers as such school directors and should have been ousted from further acting in such official capacities.

The judgment is reversed and the cause remanded, with directions to the said circuit court to enter up judgment of ouster against said respondents.

Boy, C., concurs.

PEE CUEIAM.

The foregoing opinion of Williams, 0., is adopted as the opinion of the conrt.

All the judges concur.