other statutes referred to, does not affect man over 20 years of age (his exact age is them in any way.

We think that there is no merit in the motion for a rehearing or in the motion to transfer to court en banc.

WHITE, C., concurs.

PER CURIAM. The foregoing opinion of ROY, C., is adopted as the opinion of the court. All the Judges concur.

STATE v. FITZGERALD. (No. 20658.) (Supreme Court of Missouri, Division No. 2. Feb. 16, 1918.)

1. CRIMINAL LAW 452(4) OPINION EVI-
DENCE HANDWRITING.
Where witnesses testified that they were
personally acquainted with defendant, and had
seen him write his name a number of times,
they were competent to testify that in their
opinion letters to the injured party read in evi-
dence were in defendant's handwriting.
2. CRIMINAL LAW 784(1)-INSTRUCTION
CIRCUMSTANTIAL EVIDENCE.

Where there was no direct evidence of defendant's guilt in a prosecution for rape, but such evidence was wholly circumstantial, the injured party having committed suicide before institution of prosecution, defendant on request was entitled to have an instruction on circumstantial evidence given, and its refusal was er

ror.

3. CRIMINAL LAW 419, 420(1) EVIDENCE STATEMENT EITHER BY DEFENDANT OR BROTHER.

In a prosecution for rape, the court should exclude a witness' testimony that he overheard a conversation between defendant and his brother while they were confined in jail, and that one of them, which the witness did not know, said, "If you had done what I wanted you to do, there would not have been anything of this," since, if defendant's brother made the state ment, it was inadmissible.

4. CRIMINAL LAW 407(2) IMPLIED AD MISSION-SILENCE IN FACE OF CHARGE OF

GUILT.

Defendant's silence in face of a charge or insinuation of guilt made in his presence, he being under arrest at the time, would be no evidence against him.

Appeal from Circuit Court, Douglas County; C. H. Skinker, Special Judge.

Robert Fitzgerald was convicted of rape, and he appeals. Reversed and remanded.

Charged with the crime of rape upon one Mable Swearingin, a female child under the age of 15 years, defendant was tried in the circuit court of Douglas county, found guilty, and his punishment assessed at seven years' imprisonment. Defendant duly appealed. The crime is charged to have occurred in October, 1915.

not given) lived on a nearby farm about three-fourths of a mile northwest of the Swearingin home.

On November 27, 1915, Mable died, as a result of poison self-administered. After the body was buried, some suspicious circumstances having come to light, the body was exhumed and examined by a physician, who found a condition of pregnancy three or four months advanced.

Mable's father testified that he had never seen the defendant or his daughter together, but on several occasions had noticed Mable's absence from the house, garden, or milk lot where she was supposed to be working, and

on one or two occasions had seen her returning to the premises, coming from a locality from which at the same time he had seen the defendant walking away.

Mable's mother testified that the members of the two families did not visit each other very frequently, and that at different times during the months of July, August, and Sep

tember, 1915, she had seen the defendant about the Swearingin premises, but on those occasions he did not come to the house. The mother and father both testified that some time in January, 1916, after the appellant's arrest and while he was out on bond, he passed the Swearingin house one night singing a song. The words of the song as remembered by the witnesses were as follows:

"Wheep! Wheep! By God! Right here's where I got it, but she's dead and gone, but all I ask, boys, is to keep me off!" (or, as one of the witnesses said, "keep them off").

Mable's sister Myrtle testified that in the summer of 1915 defendant and his brother came to a place in the woods where the witness and her sister Mable were gathering mulberries, and that on this occasion the defendant approached Mable, placed his arms about her, and the two walked away together, out of the witness' sight.

Gladys, the ten year old sister of Mable, testified that she had seen her sister Mable and defendant together a number of times during the summer of 1915, and had seen them put their arms about each other; that on one occasion while she was with her sister Mable and defendant out on the road near their home Mable threw a glove to the side of the road and asked the witness to get the glove. When the witness went to get the glove the defendant and Mabie ran away from her out in the woods, and in a short time thereafter Mable came back to the house; that on one occasion defendant told the witness he would give her a dollar if she would not tell her father and mother

The evidence upon the part of the state "about him and Mable." may be summarized as follows:

After Mable's death several letters were Mable Swearingin (hereinafter referred to found in or about the Swearingin house by as Mable) was born April 6, 1901, and at the different members of the family. About time of the occurrence of the alleged crime 14 of these letters were introduced in eviwas residing with her parents on a farm dence. Some of the letters were unsigned, in Douglas county, Mo. Defendant, a young others were signed "Robt." to Mable or "Rob

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ert," and some were signed by the initials | paper and you come over to the little Rock this "R. F." Most of the letters were addressed eve and we will Have sum fun Shore Ha H to Miss Mable Swearingin. One of the letters friday night So good Bye Bye and write when I Bet you got Scard goin across that Hollow uses obscene language, but none of the letters you git this ill put two or three kisses on this. expressly mention any acts of sexual in- [Cross marks.]" tercourse. It will not be necessary to copy herein all of said letters, but we will copy a few of them which will serve as types. Copies of some of the letters follow: Exhibit G: "Ongo, Mo., Aug. 3, 1915 Miss Mable Swearingin Hello Sweet How be you I am all O K this eave. You bet your sweet life Kido that dun me good when I got your letter and heard you was all O K. This m I was over thire a long time looking to see you eny time and guess you was in the hay field at work. I seen Myrtle this m She said you was at work ha ha Kid you will have to excuse bad scratching my knee don't make much of a riten dest it too dam soft. Yes you come to night and we try it again. Come over there where we was last night ill be there come Bout sun Down ill not try and not write much this time so bye bye. Robert to Mable."

Exhibit K: "Saturday m 10:30 Ongo, Mo., Miss Mable Swearingin Dear Sweet Heart ill take time this morning to scratch you a short letter as I diden git to see you last night why diden you com over at the little rock yesterday eave I waited till all most dark. If you had com I was am to com over in To day ill bring this letter over this after noon and hope [word rubbed out] I will see you when I git there and find a long letter under the little rock. Say Kidd if you git this in time come up in the corner of the old field when you git this. Say Kido I shore would like to know that you heard that night and will git this letter. It seems like I never is goin to get to see you eny more. I am some what down hearted to day and got the blues ha ha hop you are the same I just feal like ive lost my M S but hop not I guess you are gon to meeting to day I guess ill stay by my lonsom to. Say I shore was scared that night and isen quit over it yet. Say when I see you ill hug you just to bet the band. I seen My S Sat. eave goin after the cows but diden talk with her eny Say what was that but Willie H and F H you talk like in your letter that I had told thim that I was telling them I was meeting you down thire I haven seen them in a long time and if they told you eny thing it is lie and ill tell them so when I see them and if they told eny thing when I see you be shore and tell me that it was ha ha I guess you will find several mistakes in this letter for I am in a hurry. You can take them as kisses I guess I better qit for this time I would write a long letter but haven got time if I dont git to see you to day you write and tell me whar I can see you to night it might be that I diden com to the rite place last night and be shore and ans this just as soon as you git this and if you got time you come up in the corner of the old field. I be up there all eave I want know what them durn H has told you. So ill ring off ans soon. to my Ms from R F."

a

Exhibit II: "Ongo Mo. Tuesday M-9 Miss M V. S. Der Swet Heart ill write you a letter as told you would ha, ha, how did you make it Sunday night ha ha Got home all rite But say ill tell you it certily was Dem Dark ha ha I shore Diden loose eny time I gogt home just Be fore it went to rainin. O, Buy God I lost my Shoe heel up in J. C. S. field Som Whare. Dont you no Swet III diden loose eny time hunting for it. I keep Goin Say M V what was that God Dem Dog Barking ill tell you Sweet heat That made me feel Dem Bad ill Bet he woke Them all up Diden if ha ha if he Did Cause my Girl to git cout ill Shore Git him Some of thes long and happy Days Now Honey when you when you write Be Shore and tell all of them late news I Shore Do wat to know how you made it Sunday night."

Two witnesses were placed upon the stand for the state for the purpose of identifying the handwriting of these letters as being that of the defendant. Objections were made and saved to the ruling of the court in admitting the testimony of these two witnesses, and there were also objections made and exceptions saved to the introduction of these various letters. More will be said about that in the course of the opinion.

The genuine signature of defendant on his bail bond given in this suit was also admitted in evidence over the objection of defendant.

Over the objection of the defendant one of the state's witnesses was permitted to testify that while he was in a room at the county jail adjoining the one occupied by the defendant and his brother he heard one of them say (but was unable to say which one of them said it) the following:

"If you had done what I wanted you to de there would not have been anything of this."

The evidence upon the behalf of the defendant was substantially as follows:

Four witnesses testified that the reputation of the defendant as to being an honest and law-abiding citizen was good. Some of these same witnesses testified that the reputation of Mable's father for truth and veracity was bad.

The defendant, testifying in his own behalf, denied that he ever had sexual intercourse with Mable, and denied he sang the song mentioned by Mable's father and mother.

J. S. Clarke, of Ava, and Tom Moore, of Ozark, for appellant. Frank W. McAllister. Atty. Gen., and C. P. Le Mire, Asst. Atty Gen., for the State.

Exhibit F: "9-20 minutes. Ongo Mo Aug Miss Mable Swearengin Depew Mo Dears Sweet Heart. How be you I am all O. K. and guess Mable is the same Hop so eny way Say Kidd if you can you com over heare This eave Bout Three and ill Be thire and when you git this you ans with a long letter and tell me if you can com I know you can if you try ill tell you this is a lonsome old Day and just think hafto wait all Day to git to See you, god Bless your old Sweat Heart I cant hardly wait that long if you know how Bad I want to see you Shore would come I cant go eny whare el's for thinkin a Bout my sweet little Mable well I guess I Better Bring this god dem thing to a close I would of

WILLIAMS, J. (after stating the facts as above). [1] I. Appellant contends that the court erred in permitting witnesses Huse Swearingin and his son, Roy Swearingin, to testify that in their opinion the letters read in evidence, were in the handwriting of the de

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

front foot was white; that is all the white there was about her."

After placing the two cows in the alfalfa field defendant went to a neighboring ranch to get another cow, which he claimed belonged to him, and after returning with the other cow defendant and his helper drove the three cows to "Bud Sherald's." The witness Jenkins had some cattle which he also on that day took over to Sherald's. After the cattle were driven to Sherald's defendant sold his three cows to a man by the name of Brown Morrison from Illinois. Jenkins knew that defendant was coming with the cattle because the defendant had told Jenkins on the Saturday before that he was going to drive some cattle up to his place on the next Monday morning, and that they would drive their cattle together over to Sherald's. Defendant did not tell Jenkins from what place he was going to bring the cattle, but the witness presumed he was going to bring them from home. The witness also testified that the black cow did not have any bell on her when defendant drove her up to his farm on that day.

About the last of July or the first of August, 1915, the heifer "came up" without the cow, and the owner never saw the black cow after that date. Several cattle ran on this range. The extent of the range is not given. The owner made a search, but was unable to find the cow. A road leading from the neighborhood in which Awbrey lived went in a westerly direction about four miles, passing the farm of one Bud Ellison, and there turned in a more northerly direction towards the farm of Lee Jenkins. The Jenkins farm was four or five miles north of the Bud Ellison farm. One Sunday night in 1915, and about threshing time, Bud Ellison heard a strange cowbell in the road which passed his house. He did not see the cow which wore the bell, nor did he see any one driving cattle, because it was too dark. He testified, however, that Awbrey's cattle were not in the habit of running around his place. In November of 1915, C. B. Wood and his son were going A few weeks after the cow disappeared a along the road which runs from the Bud warrant was issued for the arrest of the deEllison farm to the Lee Jenkins farm, and fendant. The next day after the warrant at a point about one mile south of the Lee was issued defendant went to Awbrey's Jenkins farm the boy discovered a cowbell house, told Awbrey that he did not think at the edge of the road. The bell had a small Awbrey had done him right, and that Awbrey piece of leather strap attached which had "didn't get the right fellow." He further the appearance of having been gnawed by told Awbrey that he had bought the cow rats. The bell was filled with decayed grass, from a man named Sissom down at the etc., which had the appearance of having "Chigre schoolhouse neighborhood in Arkanbeen stuffed into the bell. They took the sas." Defendant also told Awbrey that the bell home with them, and a few months cow he was driving did not have a bell, but later Awbrey, having heard of the incident, that while he was driving the cow on the called at the Wood home, and after describ-night in question an old roan cow wearing ing the bell which was formerly on his cow, a bell followed them some distance near the which tallied with the description of the bell, home of Bud Ellison until he separated the was given possession of the bell. This bell roan cow from his cows and started the roan was introduced in evidence at the trial and was identified by Awbrey as the bell which was worn by his black cow at the time of her disappearance from the range.

One Monday morning in July or August, 1915, the defendant and another man, unknown to the witness, came to the farm of Lee Jenkins driving two cows, one black and one red, and asked Jenkins if he could get a place to put his cows. Jenkins told defendant to put them in a lot, but defendant said that he would prefer a pasture. Jenkins then told defendant to put them in a nearby alfalfa field. Jenkins in describing the cow testified that she would weigh between 900 and 1,000 pounds; that "she was a black cow; I remember she had a little white on both hind feet, and she was black from the top to the brisket." On being further examined as to the white upon the cow, he said, "I don't remember; I remember noticing some white on her feet." On cross-examination this witness testified as follows:

"Q. Which of her feet were white? A. Each one of her hind feet. Q. You did not notice any white except upon her hind feet? A. Not

cow in an opposite direction. Defendant told Awbrey that he could prove where he bought the cow by one Abner Pemberton and Richard Mullinax, and that Mullinax helped him drive the cow that night.

that after the warrant for defendant's arMr. Charley Ayers, the constable, testified rest was delivered to him he was unable to find the defendant; that he went to the home of defendant's father and inquired, and was told that defendant was at another place. The constable left word for defendant to meet him at Protem. The constable heard that afterwards the defendant came to Protem that same day but did not stay. A few days later the constable heard that defendant was leaving the country, and followed him as far as Bradleyville, but upon arriving at Bradleyville learned that defendant had taken the hack and departed.

Upon the part of the defense the evidence tends to establish the following facts:

Defendant, testifying in his own behalf, stated that he was 22 years old, and that in the summer of 1915 was engaged in farming and

during that summer he bought a "black" cow and a red one from Albert Sissom, who lived near the Chigre Hill schoolhouse, in Marion county, Ark.; that no one was present when he made the purchase, but just after the defendant paid for the cattle one Harry Long rode up, and Sissom said, "Fred [meaning the defendant], do not say anything about buying them cattle for a few days; I owe some fellows, and I want to leave and work and I will be back and pay them." Defendant told him that was all right with him. On cross-examination defendant testified he never asked Sissom where he got the cows. The defendant and Long started down the road, and met Albert Pemberton, and defendant told him that he had bought some cows, and pointed them out to Pemberton. While the three were looking at the cows, Sissom came up from the brush and said, "Nave, I thought you was not going to say anything about me selling those cattle;" and defendant replied, "I haven't"; and Sissom said, "That is all right." Defendant tried to engage Long to help him drive the cattle out. He testified that Chigre Hill schoolhouse was about 3% or 4 miles from the home of Awbrey. In specifically describing the cow the defendant said: "As I said a while ago, I think she weighed 920 pounds, and she had some white on her; she was a tolerable heavy cow; she was heavy made from the shoulders down. I would judge her to be about seven or eight years old." He further testified that the cow did not have any bell

on.

went to Awbrey's home, and told him that he had bought this cow from Sissom, and that he would rather that he would take the matter up with Sissom. When the defendant returned to his father's house that day he was told that a constable had been there with a warrant. Defendant then went to Protem inquiring for the constable, and was told that he was gone, and the defendant left word for the constable that he would be at home the next morning, and that he lived about one mile and a quarter from Protem, and remained at home the next three days. About a week after that defendant met one Roy Davis, who told defendant that he had heard that they were going to have defendant arrested for "carrying a gun," and advised defendant "to get up and get out." Defendant said he was needing work, which fact, together with the advice from Davis, caused him to go to Oklahoma. Defendant also admitted that before he left for Oklahoma he knew that the constable had a warrant for his arrest upon the charge of having stolen Awbrey's cow.

After remaining in Oklahoma a short time he went to Columbus, Kan., remaining there two months, and then went to Iola, Kan., where, after remaining a month, he went to Branson, Mo., and there learned that the grand jury had indicted him for stealing a cow; he thereupon went to Forsyth, Mo., and gave bond. Afterwards he returned to Collinsville, Okl., and remained there most of the time thereafter except for a period After buying the cattle defendant said of about two months. He stated that Richhe permitted them to remain where they ard Mullinax now lived in Rush, Ark., and were for about a week, and he found a man he was unable to procure his attendance at who was willing to purchase them if he the trial. He further testified that it was could get them over to Bud Sherald's. He about 15 miles from Chigre Hill schoolhouse, employed Richard Mullinax to help drive the in Arkansas, to the farm of Lee Jenkins, in two cows over there. Mullinax told defend- Taney county, Mo. Defendant also admitant that he could not help him drive the ted upon cross-examination that in 1915, in cattle until after he had called upon his girl the circuit court of Taney county, he was on the Sunday in question. The defendant convicted of selling liquor in violation of the thought it would be better, on account of the law, and that in 1911, in said circuit court, hot weather, to drive the cows at night any- he was convicted of burglary and larceny. how, and he also went to see his girl. It was about sundown Sunday before they started out with the cattle. They drove them through by Bud Ellison's, and they had considerable trouble along the road with other cattle "crowding in" which they would have to drive back. At one place he says there were 15 or 20 head of cattle following them, among which there was an old roan cow wearing a bell. He then tells about reaching the home of Jenkins about daybreak. There he left the cows in an alfalfa pasture. Later in the day he drove the cows over to Sherald's, and there on that day sold them to Mr. Morrison, who gave him a check on the Bank of Ramsey, Ill. Two or three weeks later defendant heard that Awbrey had lost a cow, and some one told defendant that a warrant was out for his arrest upon this charge.

Harry Long testified that he met defendant near the Chigre Hill schoolhouse at the time in question, and defendant told him that he had bought some cattle from Sissom, and wanted the witness to help drive them out. The witness said that there was a dark-looking cow there, but that he did not pay much attention. Two other witnesses saw defendant going towards the Chigre Hill schoolhouse about the time in question.

Albert Pemberton by deposition testified that on July 16, 1915, he saw defendant near the Chigre Hill schoolhouse, and that defendant pointed out to him and witness Long two cows which he claimed he had bought; one of the cows was red and the other was “a large black and white spotted one"; that while they were looking at the cows Sissom came out and told defendant The next morning defendant that he did not mean for him to tell about