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(232 S.W.)

"shall be liable to cross-examination, as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness in the case."

week; that she locked the door, and he which it is alleged was violated, is that a would have to stay until she let him out; defendantthat she would keep him in there; that he never talked at Miller's about marrying this girl; that he never talked to her never talked to her about marrying her, but she talked to him; that he told her he didn't want to get married; that the last time she asked him to marry her was in August, 1919. Over his objection, defendant was compelled to testify that he had been convicted once or twice for violating the laws of the state; that he was convicted when about 14 years old for stealing watermelons; that he was convicted for carrying a pistol; and that he was convicted for fighting.

Defendant here rested in chief.

In rebuttal, the state called William Durnell, who gave evidence tending to show that Ray Bernard was in the army at the time defendant claims to have seen him on the pallet with Chloe,

Louisa Durnell, the mother of prosecutrix, was shown Defendant's Exhibit 1, and stated that it was positively not in her daughter's handwriting.

Wm. Durnell, the brother of prosecutrix. testified that he went to school with her and observed her handwriting. He was shown said Exhibit 1, and testified that it was not in the handwriting of prosecutrix.

After the case was closed, and counsel for the plaintiff had commenced the argument, the state was permitted, over the objection of defendant, to prove by the prosecutrix that she was single during the years 1918 and 1919, and that she had never been married. The foregoing substantially covers all the testimony in the case.

After the reading of the instructions and the arguments in the case, the jury returned into court the following verdict:

"We, the jury, find the defendant, Frank Stokes, guilty as charged in the indictment, and assess his punishment at 3 years imprisonment in state penitentiary.

"A. A. Paxton, Foreman." Defendant, in due time, filed motions for a new trial and in arrest of judgment. Both motions were overruled, defendant duly sentenced, and an appeal was granted him to this court.

We are thoroughly familiar with the above section of our statute, as well as the authorities cited by counsel in their respective briefs. It is difficult to lay down any positive rule which should apply in the interpretation of above section, as each case must largely be determined with reference to the facts stated therein. We have set out all the evidence in the case very fully, and shall only refer to the facts again as far as necessary.

It is conceded by appellant he testified in chief that he never promised to marry Chloe Durnell; that he never had any conversation with her, in the presence of either Jim Miller or Mrs. Jim Miller, in which he talked about when he would get married, and about getting married; that he saw Chloe Durnell and Ray Bernard lying on a pallet with two pillows and a quilt, at the home of Will Durnell, in August, 1918, while Will Durnell and his wife were at the Sedalia fair. Over the objection of defendant's counsel, he was required to testify that he went with prosecutrix both before and after the time he saw her on the pallet with Bernard. Over defendant's objection, he testified that he visited prosecutrix frequently after the above occurrence; would go on Sundays, and sometimes once in the middle of the week; that he would stay with her sometimes until 2 or 3 o'clock in the morning; that she would lock the door and keep him there; that he never proposed marriage to her, but she asked him to marry her, and he told her he did not want to marry, etc. For the purposes of the case, even if it be conceded that the above and other similar testimony was not proper crossexamination, yet we are at a loss to understand how defendant was injured thereby. The evidence is undisputed that he went with prosecutrix to church, parties, etc. The cross-examination threw no light on the question as to whether defendant promised tend to show that Chloe Durnell was of preprosecutrix he would marry her. It did not vious good character. In view of the testimony of the prosecutrix as to what occurred

W. A. Dollarhide, of Osceola, and J. D. between herself and defendant, the crossHarris, of Carthage, for appellant.

Jesse W. Barrett, Atty. Gen., and Robert J. Smith and R. W. Otto, Asst. Attys. Gen., for the State.

RAILEY, C. (after stating the facts as above). [1] I. Appellant assigns as error the ruling of the court in permitting the state, over his objection, to cross-examine him in respect to matters not brought out or referred to by him in his direct examination. The language of section 4036, R. S. 1919,

examination complained of was not material to any issue in the case, and affords no valid grounds for reversing and remanding the cause. State v. Avery, 113 Mo. loc. cit. 499, 21 S. W. 193; State v. Lewis, 118 Mo. loc. cit. 86, 23 S. W. 1082; State v. Feeley, 194 Mo. loc. cit. 315, 316, 92 S. W. 663, 3 L. R. A. (N. S.) 351, 112 Am. St. Rep. 511; State v. Barrington, 198 Mo. loc. cit. 81, 95 S. W. 235.

[2] 2. Aside from what is said in the preceding proposition, we are of the opinion that the trial court committed no error in the ad

mission of said cross-examination, in view off to affect his credibility, either by the record or defendant's testimony in chief. State v. by his own cross-examination, upon which he Drew, 213 S. W. loc. cit. 107; State v. must answer any question relevant to that inSherman, 264 Mo. loc. cit. 381, 175 S. W. 73; quiry and the party cross-examining shall not State v. Mitchell, 229 Mo. loc. cit. 693, 129 be concluded by his answer." S. W. 917, 138 Am. St. Rep. 425; State v. We are of the opinion that the cross-examMiller, 190 Mo. loc. cit. 463, 464, 89 S. W.ination complained of was authorized by the 377; State v. Avery, 113 Mo. loc. cit. 498, 499, 21 S. W. 193. The rule of law, in respect to the foregoing subject, is very forcefully and clearly stated by Judge White in the recent case of State v. Drew, 213 S. W. loc. cit. 107, as follows:

"Complaint is made of the action of the court in permitting the defendant to be cross-examined by the prosecutor, who asked him whether he was at the home of the prosecuting witness at any time in October. The defendant in his direct examination was asked whether he had ever had any improper relations with the prosecuting witness at any time, and it was entirely proper to cross-examine him as to his whereabouts and his movements about the time at which he was said to have committed the offense. State v. Pfeifer, 267 Mo. 23, loc. cit. 30-32, 183 S. W. 337; State v. Ivy, 192 S. W. 733, loc. cit. 736."

Leaving out of consideration the question as to the alleged promise of marriage, and as to what is alleged to have taken place when defendant first had sexual intercourse with prosecutrix, there is but little conflict, if any, in their testimony. As defendant testified in chief, in relation to the promise of marriage, and was not asked on cross-examination as to whether he had sexual intercourse with Chloe Durnell, he has no just ground of complaint on account of the evidence which he did give on cross-examina

tion.

Considered from any viewpoint, we are of the opinion that the trial court committed no error in respect to the cross-exam

ination of defendant.

[3] 3. Appellant contends that the trial court erred in compelling him to testify as to his former convictions for stealing watermelons when a boy, for carrying a pistol, and for fighting, when he had not opened up any such issue by offer of proof as to his good reputation on the traits of character involved in said cross-examination. Appellant, in support of his contention, relies upon Judge Gantt's opinion in State v. Beckner, 194 Mo. 281, and following, 91 S. W. 892, 3 L. R. A. (N. S.) 535. We have no criticism to make of Judge Gantt's opinion, based upon common-law principles; but it is evident from the briefs of counsel in said cause, as well as from the opinion therein, that the attention of the court was not called to the act of 1895 (Laws 1895, p. 284), now known as section 5439, R. S. 1919, nor was the latter considered by the court in passing on the case. The above section reads as follows:

"Any person who has been convicted of a criminal offense is, notwithstanding, a competent witness; but the conviction may be proved

provisions of above section. State v. Howe, 228 S. W. loc. cit. 479, and cases cited; State v. Mills, 272 Mo. loc. cit. 536, 199 S. W. 131; State v. Banks, 258 Mo. loc. cit. 493, 167 S. W. 505; State v. Hubbard, 223 Mo. 80, 122 S. W. 694; State v. Woodward, 191 Mo. loc. cit. 633, 90 S. W. 90; State v. Spivey, 191 Mo. loc. cit. 110, 111, 90 S. W. 81; State v. Blitz, 171 Mo. loc. cit. 540-542, 71 S. W. 1027.

[4] 4. Appellant, under his assignment of error numbered III, insists that, even if the testimony in regard to the former misdemeanors was properly shown,

"then it became and was the duty of the court under the law and under the request of defendant's counsel to instruct the jury to the effect that the jury could only consider his conviction on those other offenses as tending to discredit his testimony as a witness, and not as tending to prove him guilty of the crime for which he was then on trial." (Italics ours.)

The record indicates that defendant was represented by able and careful attorneys, who tried the case well in his behalf. The court gave very full and carefully prepared instructions covering all the real issues in the case. The defendant offered no instruction in respect to foregoing matter, nor does the record show that the court was requested to instruct the jury on the above subject. The misdemeanors referred to were only admitted as evidence tending to affect the credibility of defendant as a witness in the case. They did not relate to the merits of the controversy, except as above indicated. If counsel for appellant had offered an instruction in relation to above matter, and it had been refused, or if they had requested the court to give a proper instruction on that subject, and be some merit to their present contention; their request had been refused, there might but on the record before us the trial court, in respect to above matter, committed no error of which appellant can legally complain.

[5] 5. The sufficiency of the indictment is challenged on the ground that it charges one Frank "Slokes" with seducing and debauching Chloe Durnell, upon a promise of marriage made to her by Frank Stokes. Sections 3906, 3907, R. S. 1919, which were in existence during the year 1918, read as follows:

"Sec. 3906. Indictment by Wrong Name.-If a defendant be indicted by the wrong name, unless he declare his true name before pleading, he shall be proceeded against by the name in the indictment. If he allege that another name is his true name, it must be entered in the minutes of the court; and after such entry, the trial and all other proceedings on the

(232 S.W.)

indictment shall be had against him by that name, referring also to the name by which he is indicted, in the same manner, in all respects, and with the same consequences as if he had been indicted by his true name.

"Sec. 3907. Variance Between Charge and

and legal procedure thereunder, is not sufficient to invalidate the indictment. Section 3908, R. S. 1919; section 5115, R. S. 1909; State v. Adkins, 225 S. W. 981; State v. Foster, 281 Mo. 618, 220 S. W. 958, 959; State

Proof.-Whenever on the trial of any felony or v. Hawkins, 210 S. W. loc. cit. 6; State v. misdemeanor, there shall appear to be any vari- Byrd, 278 Mo. loc. cit. 432, 433, 213 S. W. ance between the statement in the indictment loc. cit. 36; State v. Pfeiffer, 277 Mo. loc. cit. or information and the evidence offered in 206, 209 S. W. 925; State v. Massey, 274 Mo. proof thereof, in the Christian name or sur- loc. cit. 585, 204 S. W. 541; State v. Morehead, name, or both Christian name and surname, 271 Mo. loc. cit. 87, 195 S. W. 1043; State v. or other description whatsoever, or any per- Perrigin, 258 Mo. loc. cit. 236, 167 S. W. 573; son whomsoever therein named or described, State v. Griffin, 249 Mo. 624, 155 S. W. 432; or in the name or description of any matter or thing whatsoever therein named or describ-State v. Duvenick, 237 Mo. loc. cit. 194; 1 ed, or in the ownership of any property nam- State v. Keener, 225 Mo. loc. cit. 494, 125 S. ed or described therein, such variance shall W. 747; State v. Miller, 156 Mo. loc. cit. 84, 56 not be deemed grounds for an acquittal of the S. W. 907; State v. Meyers, 99 Mo. 107, 12 defendant, unless the court before which the S. W. 516; State v. Estis, 70 Mo. 437. trial shall be had shall find that such variance

is material to the merits of the case and preju

dicial to the defense of the defendant."

In the light of foregoing precedents and statutes, we are of the opinion that the indictment charges Frank Stokes with having

The indictment aforesaid, including cap- seduced Chloe Durnell under a promise of tion and signature, reads as follows: marriage, etc. "State of Missouri, County of Hickory-ss.: "In the Circuit Court of Hickory County, Missouri.

"To November Term, 1919.
"State of Missouri v. Frank Stokes.

"The grand jurors for the state of Missouri, duly summoned, impaneled, charged, and sworn to inquire within and for the body of Hickory county, Missouri, upon their oaths present and charge that Frank Slokes on or about the 15th day of November, 1918, at the said county of Hickory, and state aforesaid, did then and there under and by promise of marriage made to one Chloe Durnell, by him, the said Frank Stokes, unlawfully and feloniously, seduce and debauch her, the said Chloe Durnell, she, the said Chloe Durnell, being then and there an unmarried female of good repute, and under twenty-one years of age, against the peace and dignity of the state.

"C. N. Simmons, Prosecuting Attorney."

Taking the indictment as a whole, it is perfectly manifest upon the face of same that the word "Slokes" in the body thereof was intended for Stokes. The latter was arraigned and entered a plea of not guilty as the real defendant in the case. He made no attack upon the indictment before or during the trial, and made no objection during the progress of the trial to the introduction of evidence under the indictment, on the ground that there was a variance between his name and that of "Slokes," mentioned in the body of the indictment. It is not claimed that the trial court found the alleged variance was material to the merits of the case or prejudicial to the defense of defendant. The indictment on its face, construed as any other written instrument, clearly indicates that Frank Stokes was the real defendant being charged with seducing Chloe Durnell, and that the word "Slokes" was intended for Stokes. The clerical error of above character, according to our conception of the law

was insufficient to make out a case of seduc[6] 6. Appellant insists that the evidence tion. The facts are extensively stated heretofore, and need not be repeated. While there are some inconsistencies and contradictions in the testimony of the state, and while some damaging facts were not in terms denied by prosecutrix, yet she did testify on cross-examination that no other boy had ever had intercourse with her. It is not the province of this court to pass upon the weight of the evidence, and we have not attempted to do so. We are of the opinion that the verdict is sustained by substantial evidence as to all the facts necessary to establish the guilt of defendant. State v. Underwood, 263 Mo. loc. cit. 685, 173 S. W. 1059; State v. Concelía, 250 Mo. loc. cit. 424, 157 S. W. 778; State v. Rumfelt, 228 Mo. 443, 128 S. W 737; State v. Barrington, 198 Mo. 23, 95 S. W. 235.

[7] 7. The trial court is charged with error in permitting the state, after the testimony was closed and the argument commenced, to reopen the case by permitting the prosecutrix to testify that she had never been married. There was nothing in the testimony to indicate that prosecutrix had ever been married. On the contrary, the testimony of all the witnesses, including defendant, left the impression that she was unmarried. It is manifest that no harm was done the defendant in reopening the case for above purpose. State v. Ray, 225 S. W. loc. cit. 973; State v. Rose, 271 Mo. loc. cit. 26, 195 S. W. 1013; State v. Dunn, 179 Mo. loc. cit. 118, 77 S. W. 848; State v. Worton, 139 Mo. loc. cit. 533, 41 S. W. 218.

8. We are of the opinion that instruction 3, given by the court, is not obnoxious to the criticism leveled against it by appellant, and that it properly declared the law of the case.

[8] 9. The trial court is charged with error in sustaining an objection of the state to a question propounded by defendant to T. T.

1 140 S. W. 897.

Quillen. This witness testified, at the in- | Mo. loc. cit. 446, 134 S. W. 641, Ann. Cas. stance of the state, that as far as he knew 1912B, 1221; State v. Harvey, 214 Mo. 403, the reputation of prosecutrix in that com- 114 S. W. 19; State v. Baker, 209 Mo. loc. cit. munity for chastity and virtue was good. On 451, 108 S. W. 6; State v. Murphy, 201 Mo. cross-examination the following occurred: 696, 100 S. W. 414. "Q. Now, Mr. Quillen, did you hear of her keeping company with other boys?"

[10] 11. It is claimed by defendant that the judgment of conviction cannot stand, because the indictment was indorsed by R. L. Moore as foreman, and no such person appears on the panel of grand jurors. The pan

before us, contains the name of Rufus Moore, and no other person by the name of Moore appears on the panel. No motion to quash the indictment was filed, nor was any objection to the sufficiency of same made during the progress of the trial.

Section 3885, R. S. 1919 (section 5093, R. S. 1909), reads as follows:

The court sustained an objection to this question, and that is assigned as error. The testimony of this witness was simply cumula-el of grand jurors, as shown by the record tive. There were 9 or 10 other character witnesses who testified in substance the same as Quillen. There was no counter evidence of this character offered by defendant. The question does not mention any date and the evidence is undisputed that prosecutrix went with other boys before her alleged engagement. It could not be considered as an attack upon her chastity or virtue, even if she "Every indictment must be signed by the had kept company with other boys. This wit-prosecuting attorney, and when the grand jury ness testified on cross-examination that he return any indictment into court the judge did not know a thing about prosecutrix keep- must examine it, and if the foreman has neging company with other boys. He was not lected to indorse it 'a true bill,' with his name even asked if it was neighborhood rumor. signed thereto, or if the prosecuting attorney Even if some individual had told witness the has not signed it, the court must cause the prosecutrix had been keeping company with foreman to indorse or the prosecuting attorother boys, it would have been hearsay tes-ney to sign it, as the case may require, in the presence of the jury." timony and clearly incompetent. If the purpose of the question was to show that prosecutrix kept company with other boys after November, 1918, when she claims to have be come engaged to defendant, as a circumstance tending to show she did not consider herself engaged to defendant, the question should have been framed accordingly. There was no necessity for resorting to such hearsay testimony, when the evidence was undisputed that in August, 1918, prosecutrix was keeping company with other boys. We are of the opinion that the court committed no error in sustaining the objection to the question as asked, and that defendant was not injured thereby.

[9] 10. Appellant contends that error was committed by the trial court in permitting Mr. O. O. Brown, special counsel for the state, to make improper remarks in the argument of the case, without being rebuked. It is not claimed in defendant's brief that the alleged remarks were objected to, or that the court was requested to rebuke counsel. If any such thing occurred, it was not made a matter of record, is not contained in the transcript, and cannot be considered here. Hunicke v. Meramec Quarry Co., 212 S. W. 348; Forsee v. City of St. Joseph, 175 S. W. 577; Torreyson v. United Railways, 246 Mo. 696, 152 S. W. 32; Harding v. Railroad, 232

In the absence of any evidence to the contrary, we will conclusively presume that the trial court did its duty, and necessarily found that Rufus Moore and R. L. Moore were one and the same person.

[11] 12. It is contended by appellant that the verdict is defective, because it was signed by A. A. Paxton, as foreman, when there was no such person on the panel. The list of jurors who tried the case, as shown by the record, contains the name of Arthur Paxton, and there is no other person by the name of Paxton on the list. No evidence appearing to the contrary, it will be presumed that Arthur Paxton and A. A. Paxton were one and the same person.

13. We have given careful consideration to all the questions properly raised for re view in this case, and find no error therein which would warrant us in reversing and remanding the case.

The judgment below is accordingly affirmed.

WHITE and MOZLEY, CC., concur.

PER CURIAM. The foregoing opinion of RAILEY, C., is hereby adopted as the opinion of the court.

All concur.

(232 S.W.)

CRAIG v. SEAMAN et al. (No. 21833.) (Supreme Court of Missouri, Division No. 1. June 6, 1921.)

Appeal and error 592(1)—Appeal will be dismissed where no printed abstract of rec

ord on file.

In the absence of a printed abstract of the record required by Supreme Court Rules 12, 13, and 14 (229 S. W. xiii), the appeal will be dismissed.

pany. From judgment of dismissal, plaintiff appeals. Transferred to Springfield Court of Appeals.

The plaintiff instituted this suit in the circuit court of Jasper county against the defendant by filing the following petition:

The plaintiff for its cause of action against the defendant states that at all times hereinafter mentioned the plaintiff was, and now is, a corporation organized under the laws of the state of Missouri and engaged in mining and producing lead and zinc ores in Jasper county,

Appeal from Circuit Court, Stone County; Mo.; that at all times the defendant was, and Fred Stewart, Judge.

Action by W. D. Craig against Ophelia Seaman and others for partition. Judgment for defendants, and plaintiff appeals. Appeal dismissed.

W. E. Renfro, of Galena, for appellant.
Rufe Scott, of Galena, for respondents.

ELDER, J. This is an action to partition 12 acres of land situated in Stone county, Mo. Judgment was for defendants, and plaintiff has appealed.

now is, such a corporation, but engaged in furnishing electric current for power purposes; that in furnishing said current on the 20th day of January, 1915, and for some time prior thereto, the defendant was using natural water power for operating its machinery to produce said current, and that such method of producing power was inexpensive as compared with other methods of producing power, including steam, etc.; that for a long time prior to the 20th day of January, 1915, the plaintiff in the operation of its mines known as the Bertha A. mine and the Athletic mine had been using gas, coal, and other means of producing power with For both the appellant and respondents mines; and that the defendant had for some which to operate its machinery for its said we find on file in this court their printed time prior to said time been urgently soliciting "Statement, Brief and Argument." We also the plaintiff to change its method of producing find a typewritten copy of the "Bill of Ex-power and to use the current of the defendant ceptions," and a typewritten copy of "Record for that purpose. and Proceedings" in the trial court, both certified by the clerk of the circuit court for Stone county. We do not, however, find on file a printed abstract of the record, as is required by our rules 12, 13, and 14 (229 is required by our rules 12, 13, and 14 (229 S. W. xiii). Therefore, as much as we dislike to so order, in the interest of uniformity of practice in this court the appeal is hereby dismissed for failure to comply with the rules. St. Louis v. Vaughn, 273 Mo. 582, 201 S. W. 524.

All concur.

BERTHA A. MINING CO. v. EMPIRE DIS-
TRICT ELECTRIC CO. (No. 21810.)
(Supreme Court of Missouri, Division No. 1.
June 6, 1921.)

Courts 231 (50)-Suit for overcharges for
electricity and to enjoin electric company held
not within Supreme Court's jurisdiction.

A consumer's suit against an electric company for two months' overcharges for electricity and to enjoin shutting off the current, presenting no constitutional question and involving only $3,985.29, held not within the Supreme Court's jurisdiction.

Plaintiff states that to make such change required the removing of the machinery which the plaintiff had installed and purchasing from the defendant large pieces of valuable machinery and installing the same at a cost of more than $20,000; that as an inducement to the plaintiff to make such change the defendant entered into a written contract which it was authorized to make at such time, and by the terms of the contract it agreed to furnish the plaintiff power for a period of 10 years at a specified price mentioned in said contract, and as an inducement for the plaintiff to enter into said contract the defendant further agreed with the plaintiff that in case the cost of defendant's power should exceed $2,400, the tons of dirt handled at mill capacity not exceeding 22,000, then after having examined the plaintiff's property and recommending changes as in its opinion were necessary to reduce the consumption of power, and failing to reduce such consumption, it would remove all of said additional

equipment supplied and return and install all when the contract was entered into without equipment removed in as good condition as cost to the plaintiff.

The plaintiff states that the machinery which the defendant removed in installing its electric current under said contract was worth approximately $8,000, and, as aforesaid, the new equipment purchased by the plaintiff more than exceeded $20,000.

The plaintiff states that at said time it was Appeal from Circuit Court, Jasper County; operating in addition to the Bertha A. mine J. D. Perkins, Judge.

Suit by the Bertha A. Mining Company against the Empire District Electric Com

the mine known as the Athletic mine, and sub-
sequently by a supplemental contract of Au-
gust, 1915, the said contract and agreement
of January 20, 1915, was modified so as to in-

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
232 S.W.-8

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