litigant, but we cannot shut our eyes to the | ter which is not proper for their considerafact that there are still a larger number of tion, or which would add to the prejudice people, many of them regarded as truthful which the charge itself has produced in their and honorable, who, when called as witness- minds. es, will shade or color their evidence by "forgetting" part of the facts, and giving exaggerated emphasis to other facts for the purpose of protecting their friends, and placing those whom they dislike in a bad light before the court or jury. As [5] In the instant case the state as a part of its evidence in chief attempted to introduce proof of an assault upon another pupil who attended defendant's school, but such proof, upon objection, was properly excluded. Whether the offer of evidence of an indeIn 33 Cyc. p. 1454, the doctrine is announc- pendent crime wholly disconnected with the ed that, in prosecutions for rape or assaults charge for which defendant was on trial, with intent to commit rape, "defendant may and not intended to throw light upon his inintroduce any competent evidence, direct or tent in the present case, amounted to recircumstantial, to show that the charge versible error, we need not now decide, but against him was concocted by the prosecu- we are satisfied that said evidence was not trix or others. Facts or circumstances only improper, but the mere offer of such which tend to show the motive or bias of evidence tended to prejudice the jury. any witness who has testified, or the motive the judgment must be reversed, the prosecutof the prosecutrix in making the charge, or ing attorney should prefer a separate inforto affect her credibility, are admissible; but mation against defendant for each crime he such evidence is generally confined to bias may have committed, and give him a sepaor motive of one who has testified as a wit-rate trial for each offense. It is not permisness." See, also, 1 Wharton's Criminal Ev-sible in this state to try persons for crimes idence (10th Ed.) § 359. However, it is not not pleaded in the indictment. Article 2, § necessary to go outside of our own state for authorities to support the doctrine above announced. In the case of State v. Pruett, 144 Mo. 92, loc. cit. 94, 45 S. W. 1114, Judge Sherwood, speaking for this court, said: "Error also occurred in refusing defendant permission to ask Grisman whether he had not 'threatened to kill defendant or run him off the place.' This question was clearly competent to show by such interrogatory that the witness has a bias against or hostile feeling toward a party litigant and if the witness deny such feeling, etc., he may be contradicted, because it is always important and all important to show that the witness does not stand indifferent between the contending parties." The case last cited was approved in the case of State v. Darling, 202 Mo. 170, 100 S. W. 631. See, also, State v. Miller, 191 Mo. 590, 90 S. W. 767. We think the evidence in this cause entitled the state to go to the jury, but the frequency of verdicts of guilty on charges of rape, incest, carnal knowledge, and seduction, upon evidence not strong enough to secure convictions on other charges, demonstrates the fact that, when a man is charged with an assault upon a woman or child, the charge itself injects more or less prejudice into the minds of the jury, and such prejudice sometimes attains such force as to compel the defendant to prove himself innocent beyond a reasonable doubt, in order to secure an acquittal. This being a fact well known, at least to the courts, it is in the opinion of the writer necessary that of ficers should conduct prosecutions of this character with scrupulous fairness and avoid injecting into the minds of the jury any mat 22, Constitution of Missouri; State v. Teeter, 239 Mo. 475, loc. cit. 485, 144 S. W. 445; 1 Wharton's Criminal Evidence (10th Ed.) §§ 29, 30. At section 29a the same author says: "While the law regards as relevant all facts touching the credibility of the accused, or that can aid a jury to determine the weight of testimony, and while the question of relevancy must rest largely in the discretion of the trial judge, to be exercised by him with regard to the particular facts of each case, there is a marked distinction drawn between such facts and those sought to be brought out that merely tend to degrade the accused, or, by innuendo, to place irrelevant testimony before the jury. Such questions as, 'Have you not been arrested for felony?' where not propounded in good faith, or asked concerning facts that in themselves are irrelevant, constitute reversible error, entitling the accused to a new trial. And this is true even though such questions are objected to at the time on the ground of irrelevancy, and the answer excluded by the court. The reason is the irrelevant facts have been placed before the jury by innuendo, the sinister influence remains, nor is it destroyed by the exclusion. It rationally follows, therefore, that the jury has been prejudiced against the accused as fully as though the irrelevant facts themselves had been admitted, and nothing that the court can say entirely, obliterates the effect." For the error of the trial court in exclud ing evidence of threats made by the mother of prosecutrix against the defendant, as before recited, its judgment is reversed, and the cause remanded for a new trial. WALKER and FARIS, JJ., concur. STATE v. McGAULEY. conforms to the requirements of the statute. The verdict is in proper form, and was re (Supreme Court of Missouri, Division No. 2. turned into court finding the accused guilty Feb. 19, 1913.) CRIMINAL LAW (§ 1066*)-APPEAL-DENIAL OF NEW TRIAL EXCEPTION-NECESSITY. Where no exceptions are saved to the denial of accused's motion for a new trial, the Supreme Court on appeal is limited to a review of errors appearing on the record proper: [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2686; Dec. Dig. § 1066.*] Circuit Court; Wil Appeal from St. Louis son A. Taylor, Judge. Peter McGauley was convicted of grand larceny, and he appeals. Affirmed. as charged, and assessing his punishment at imprisonment in the penitentiary for a term of two years. The judgment accords with the verdict, and is not subject to objection. the judgment is affirmed. No error appearing in the record proper, BROWN, P. J., and FARIS, J., concur. STATE v. BASHAM et al. Feb. 19, 1913.) Thomas E. Mulvihill, of St. Louis, for ap (Supreme Court of Missouri, Division No. 2. pellant. Elliott W. Major, Atty. Gen., and Ernest A. Green and John M. Atkinson, Asst. Attys. Gen., for the State. WALKER, J. The appellant was indicted in the circuit court of the city of St. Louis, jointly with one William Sheehy, for grand larceny in having stolen from said city a certain sum of money. The indictment embodied other counts dismissed by the state before the trial, and therefore not for consideration here. Before the trial the state entered a nolle prosequi as to the defendant William Sheehy; and, upon appellant's being arraigned and entering a plea of not guilty, the trial proceeded. After hearing the evidence and receiving the instructions of the court, the jury returned a verdict of guilty against appellant of grand larceny, and assessed his punishment at imprisonment in the penitentiary for a term of two years. Appellant filed his motion for a new trial, which was overruled. The court in due time sentenced and rendered judgment against the appellant in accordance with the verdict, and an appeal was regularly per fected to this court. We have carefully examined the transcript, as well as the original bill of exceptions sent up by the clerk of the trial court, upon application made here by counsel for appellant, and we find that no exceptions were saved to the action of the court in overruling the motion for a new trial. We are therefore precluded from an examination of anything, except the record proper, under the well-established rule that, where a record shows that an appellant has failed to preserve, by bill of exceptions, any exception to the action of the court in overruling the motion for new trial, there is nothing for the appellate court to review, except the record proper. State v. Libby, 203 Mo. 596, 102 S. W. 641; State v. Irwin, 171 Mo. 558, 71 S. W. 1015. CRIMINAL LAW (8 1094*)—APPEAL-AFFIRM ANCE. Where appellant files no bill of exceptions and the court on review of the record proper finds no error, judgment will be affirmed. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2807, 3204; Dec. Dig. § 1094.*] Appeal from Circuit Court, Maries County; William H. Martin, Judge. Ernest Basham and Edward Basham were convicted of murder in the first degree, and they appeal. Affirmed. Bland, Crites & Murphy, of Rolla, for ap John M. Dawson, Asst. Atty. Gen., for the pellant. Elliott W. Major, Atty. Gen., and State. WILLIAMS, C. At the October term, 1910, of the Maries county circuit court, defendants were jointly tried and convicted of murder in the first degree, and each sentenced to the penitentiary for life, under an information charging them with murder in the first degree, for having killed one Marshall Cahill by stabbing and cutting with knives. Motions for new trial and in arrest of judgment were filed and overruled, and defendants appealed. Defendants failed to file bill of exceptions in the cause, and there is therefore nothing before this court for review except the record proper. Some slight grammatical and typographical errors appear in the information, but the same do not affect the averments of the necessary elements of the offense charged, and the information sufficiently charges defendants with the crime of murder in the first degree. The remainder of the record proper is complete, in due form, and free from error. The judgment is affirmed. ROY, C., concurs. The indictment charges grand larceny in the usual form, and is not subject to objection. The record discloses the formal ar- PER CURIAM. The above opinion by raignment of the accused and a plea of not WILLIAMS, C., is adopted as the opinion of guilty. The trial of the cause by the jury the court. STATE v. KANUPKA. court, convicted of said offense, and his punishment assessed by a jury at three years' (Supreme Court of Missouri, Division No. 2. imprisonment in the penitentiary. After un A mere copy of the motion for a new trial was inadequate to constitute a motion in arrest. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2469-2478; Dec. Dig. § 974.*] 2. CRIMINAL LAW (§ 989*)—JUDGMENT AND SENTENCE-SUFFICIENCY. Under the express provisions of Rev. St. 1909, § 5264, failure of the court to ask a defendant whether he had any legal cause to show why judgment should not be rendered against him did not invalidate the judgment and sentence, where he had been heard on a motion for a new trial. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2512, 2513; Dec. Dig. § 989.*] 3. CRIMINAL LAW (§ 1159*)-APPEAL AND ERROR- CONVICTION-CONFLICTING EVIDENCE. Where a conviction of assault with a deadly weapon with intent to do great bodily harm was sustained by ample evidence, it could not be disturbed on appeal, though the evidence was conflicting. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 3074-3083; Dec. Dig. 1159.*] 4. CRIMINAL LAW (§ 1043*)—APPEAL AND ER ROR-OBJECTION BELOW-QUESTIONS. To preserve error in respect to questions asked of witnesses, the specific grounds of ob jection thereto should be stated. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. 8 2654, 2655; Dec. Dig. § 1043.*] 5. CRIMINAL LAW (§§ 419, 420*)-ASSAULT TO Do GREAT BODILY HARM-EVIDENCE-HEAR SAY. Where a witness, in a prosecution for assault with a deadly weapon with intent to do great bodily harm, testified that she took from the pocket of the prosecuting witness a pistol which she afterwards handed to a policeman, the policeman's testimony as to what she said, at the time she handed him the pistol, about where she got it, being hearsay, was properly excluded. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.*] successful motions for a new trial and in arrest of judgment, the court, under the provisions of section 5257, R. S. 1909, reduced the punishment, as assessed by the jury, to 21⁄2 years' imprisonment in the penitentiary. Sentence was duly imposed in accordance with the verdict and order of the court. From which judgment and sentence defendant has prosecuted his appeal to this court. The evidence for the state tended to prove that the prosecuting witness, Alfred Gunners, was a married man, living, on the 13th day of March, 1911 (the day of the alleged as sault), at No. 5051 South Thirteenth street The defendant, in the city of St. Louis. John Kanupka, with his family, lived in the next block. About 7 o'clock on the evening of March 13, 1911, the prosecuting witness, Gunners, went to the residence of the defendant to see Sylvester Kanupka, a son of the defendant, to talk with him about some insulting remarks which Gunners stated the boy had made to his (Gunners') wife, and to ask the said Sylvester to refrain from such character of remarks. Gunners testified that, when he knocked at the door of the defendant's home, it was opened by the defendant, and that he (Gunners) asked defendant if his son was at home. Defendant, who was a Polander, and who did not speak English very fluently, replied that he was not, but inquired what Gunners wanted. Gunners told him that he wanted to see the boy, Sylvester Kanupka, but that, if he was not at home, he would come back again and see him. Again inquiring of Gunners what he wanted with the boy, Gunners told him, whereupon defendant began cursing, and Gunners remarked: "Man, what is the matter with you? Can you say one word I ever done to you?" Kanupka then began talking in his native tongue, and slammed the door in Gunners' face as he walked out. As Gun 6. CRIMINAL LAW (§ 1119*)—APPEAL AND ER-ners walked out of the yard and was enBOR-RECORD. Improper remarks of the prosecuting attorney could not be reviewed when not shown by the record. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2927, 2930; Dec. Dig. 8 1119.*] Appeal from St. Louis Circuit Court; George C. Hitchcock, Judge. John Kanupka was convicted of an assault with intent to do great bodily harm with a deadly weapon, and he appeals. Affirmed. Upon an information duly verified and filed by the assistant circuit attorney in and for the city of St. Louis, at the April term, 1911, of said court, charging defendant with assault with intent to do great bodily harm upon one Alfred Gunners, with a deadly weapon, he was, at the same term of said deavoring to hook the gate, he testified that Kanupka "sneaked up behind me with one of them machinist's hammers, weighing about a pound and a half, or two pounds, and hit me in the head with it"; that the blood ran down his face, but the lick did not knock him down; and that he and defendant began fighting. While they were fighting, the defendant's wife and three or four of his largest children got on top of the prosecuting witness and held him down. Gunners testified that he grabbed with his left hand defendant's hammer, which he was swinging at him, and, quoting his language, says: "When he got me down he simply beat the life out of me. He cracked my shoulder bone. I told him 'my arm was broke; for God's sake, quit, now.' He hit me ners' pocket; that it was immediately taken upstairs, and turned over to a policeman upon his arrival shortly after the difficulty. A police officer produced upon trial a loaded pistol which he stated he obtained at the home of the defendant shortly after the difficulty. Defendant also offered some slight evidence touching his previous good reputation for peace and order. once here; that knocked me unconscious." | succeeded in getting the pistol out of GunGunners testified that he was bruised about his side, knees, and kidneys; that he was in bed, under the care of a physician, for about two weeks; and that it was four weeks before he could walk without a cane. About the time Gunners regained consciousness, his wife came down, and he was dragged home by her and his brother-in-law. Gunners denied that he made any assault whatever on Kanupka, or that he had a pistol with him at the time he went to Kanupka's home. Dr. H. E. Livingston corroborated the prosecuting witness as to treating his wounds and as to the extent of them; stated that the character of the wounds received by the prosecuting witness were such as could have been inflicted with some kind of a blunt instrument. The physician further testified that in his opinion the injury to Gunners' shoulder was a permanent one. The wife of the prosecuting witness testified that, when she heard her husband screaming for help, she went to Kanupka's house; that she saw defendant hit her husband on the hip with a hammer while he was lying with his face on the ground; that she tried to get her husband up, but defendant hit her in the face with his hand; that she ran home, returning with a pistol, and that the defendant's son hit her in the back of the neck, and the defendant hit her in the face; that they took the pistol away from her; that she then went into the street and hollered for help; and that her brother-inlaw came and helped her husband up, and the two of them assisted him home. It also appears from the evidence that, although the families were only slightly acquainted, Kanupka's family were unfriendly to Gunners and his family because Mrs. Gunners had been a witness against one of the defendant's boys in the police court a short time prior to the difficulty. Another witness as to a part of the details of this difficulty was Harry Gomache. His testimony, to a slight extent, corroborates that of Mrs. Gunners as to when and where she got the pistol. The defendant undertook to prove by himself, his wife, his son, his daughter, and his wife's daughter-in-law, the defense of selfdefense; that the prosecuting witness made the first assault and attempted to draw a pistol, but was prevented by their combined efforts. The defendant denied having or making use of a hammer on this occasion. He admitted, however, that he had no bruises upon him as a result of the difficulty. Defendant's daughter, Anna Kanupka, testified that during the difficulty the prosecuting witness, after striking defendant, attempted to draw his revolver from his hip pocket; that her attention was attracted to it by the screaming of her mother; that after some little time, while her father and Gunwere engaged in the difficulty, she ners We deem this a sufficient statement of the facts to enable us to dispose of the legal questions presented. Leahy, Saunders & Barth, of St. Louis, for Ernest A. Green, Asst. Atty. Gen., for the appellant. Elliott W. Major, Atty. Gen., and State. FARIS, J. (after stating the facts as above). The brief of defendant, containing an assignment of errors, filed here by learned counsel for defendant, makes such assignment generally, not specifically. In the last analysis, these assignments are two, viz.: (a) That the evidence was not sufficient to go to the jury; and (b) that the court erred in overruling defendant's motions for a new trial and in arrest. But, as in duty bound, we have, as the statute enjoins (section 5312, R. S. 1909), carefully examined the record, which includes the bill of exceptions, made a part of the record by proper and timely orders. [1] Learned counsel for defendant confuse, inadvertently, no doubt, the office and contents of a motion in arrest with that of those of a motion for a new trial, since the motion in the record, styled a "motion in arrest," is but a copy of his motion for a new trial. The distinct offices of these two motions are prescribed by statute (cf. sections 5284 and 5286, R. S. 1909). Upon the statutory prescription, slight enlargements, germane to such prescriptions, have been ingrafted by practice. For illustration, attention may be properly called to error or omission in the record proper by an allegation in the motion in arrest, in form substantially thus: "That upon the record the judgment is erroneous." No such guidepost pointing to specific error has been planted for us in the case at bar. We are required, therefore, to examine defendant's motion for a new trial, as well as what we may call for convenience the record proper. [2] Examining the latter, we find an information, duly filed and sufficient in form and substance; a proper and formal record of the plea of not guilty; an appeal "to the country" by both defendant and the state; a legally impaneled jury sworn to try the case; and a verdict of guilty returned, which verdict meets the requirements of the strictest approved form. While the judgment and sentence lacks the allocution, it is otherwise sufficient. The lack of allocution is cured by statute, since, where either a motion for a tol]? A. She said she took it out of State (interrupting): I object to what she said as being incompetent. Court: Objection sustained. Defendant saved his exceptions." No exception to the rule that this was hearsay, and but res inter alios (as, for example, that it was a part of the res gestæ), appearing from the record, we see no escape from the conclusion that it was not admissible; and the court, so holding, ruled correctly. State v. Levy, 168 Mo. 521, 68 S. W. 562; State v. Hathhorn, 166 Mo. 229, 65 S. W. 756. [6] Complaint is made that the verdict of the jury was the result of improper remarks of the prosecuting attorney; but as not one word or syllable of remarks, either proper or improper, is shown by the record, we must rule this point against defendant. new trial or a motion in arrest is filed and pocket of the prosecuting witness Gunners. heard, the statutory necessity for allocution Laidle was asked by counsel for defendant: ceases to be mandatory and becomes direc-"Q. Did she say where she got it [the pistory only. Section 5264, R. S. 1909; State v. Nagel, 136 Mo., loc. cit. 51, 37 S. W. 821. [3] Turning to defendant's motion for a new trial, we find him complaining of the court's refusal to sustain his demurrer to the evidence, and urging, also, that the verdict is contrary to the "law and the evidence." These objections are cognate, and may be considered together. The evidence was conflicting. If we are to believe the witnesses for the state, the defendant was guilty of a most unprovoked and outrageous assault, inferably from the evidence, from no present cause or provocation, but to satisfy his revenge for an insignificant and fancied wrong. If we believe the witnesses for the defendant, who were, as to all the salient facts, his wife and children and the daughter-inlaw of his wife, he is an innocent martyr, who did naught but protect his home and person from an armed and obscene trespasser who attacked him in his own home and in the bosom of his family. Fortunately we do not have to pick and choose with so great latitude and chance of error. The jury, as the triers of fact, resolved this otherwise so dangerous a doubt against the SCOTT v. ST. JOSEPH RY., LIGHT, HEAT defendant. Face to face with the witnesses, they saw them, heard them, and observed their manner; and it is for them to weigh the witnesses' credibility, and not for us. There is ample evidence to sustain the verdict, and we are not disposed to disturb it. So we rule this point against defendant. Complaint is made also that the court erred in admitting incompetent, irrelevant, and immaterial evidence for the state, and in refusing to admit competent, relevant, and material evidence for the defendant. These complaints are in the state of the record related in kind, and may be considered togeth er. This assignment is general, and an exhaustive examination of the transcript of the evidence, as preserved in the bill of exceptions, discloses a record singularly free from the vice charged. Less than half a dozen objections and exceptions were made and saved, and none, except one hereinafter adverted to, properly made and saved. Either the question asked was withdrawn, or not answered, or specific ground of objection was not made. [4] Absent specific grounds of objection absent error. State v. Goddard, 162 Mo. 198, 62 S. W. 697. [5] Searching the transcript, we find one exception which deserves passing notice. Upon the trial, defendant undertook to prove by one Laidle, a police officer, certain statements made by Anna Kanupka, a daughter of defendant and a witness in this case for defendant, as to where she had gotten the pistol. Anna Kanupka had testified in the case already that she took the pistol out of the Finding no error in the record, the judg ment is affirmed, and the sentence imposed by the trial court ordered to be executed. BROWN, P. J., and WALKER, J., concur. (Kansas City 1. NEW TRIAL & POWER CO. Court of Appeals. Missouri. 1913. Rehearing Denied March 3, 1913.) (§ 90*) - DUTY TO GRANT Under Rev. St. 1909, § 2022, relating to the granting of a new trial, it is the duty of the trial judge to grant a new trial when satisfied that the verdict was procured by perjured testimony. Cent. Dig. 88 181-183; Dec. Dig. § 90.*] Error, Cent. Dig. §§ 3860-3876; Dec. Dig. § Appeal from Circuit Court, Buchanan County; William D. Rusk, Judge. Action by Edna Scott against the St. Joseph Railway, Light, Heat & Power Company. From judgment for plaintiff, defendant appeals. Affirmed. R. A. Brown, of St. Joseph, for appellant. Mytton & Parkinson, of St. Joseph, for respondent. JOHNSON, J. Plaintiff alleges she was thrown from a street car on which she was a passenger by the sudden starting of the car, and prays for the recovery of her result |