State v. Horton. 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. [See, also, State v. Miller, 71 Mo. 590.] Prejudice in 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 officers should conduct prosecutions of this character with scrupulous fairness and avoid injecting into the minds of the jury any matter which is not proper for their consideration, or which would add to the prejudice which the charge itself has produced in their minds. nected Acts. 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 Other Discon- of an independent crime wholly disconnected with the charge for which defendant was on trial, and not intended to throw light upon his intent in the present case amounted to reversible error, we need not now decide, but we are satisfied that said evidence was not only improper but the mere offer of such evidence tended to prejudice the jury. As the judgment must be reversed the prosecuting attorney should prefer a separate information State v. Horton. against defendant for each crime he may have committed, if in fact he has committed other crimes, and give him a separate trial for each offense. It is not permissible in this State to try persons for crimes not pleaded in the indictment. [Art. 2, sec. 22, Constitution of Missouri; State v. Teeter, 239 Mo. 475, 1. c. 485; 1 Wharton's Criminal Evidence (10 Ed.), secs. 29 and 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 excluding 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. Dixon. THE STATE v. MINNIE DIXON, Appellant. Division Two, February 19, 1913. 1. INFORMATION: Felony: Word "Feloniously" Omitted. An information charging acts which the statute denounces a felony should charge that the acts constituting the crime intended to be charged were feloniously done, and if it fai 3 to so charge a conviction thereunder cannot stand. : : Bawdy House: Keeping Girl Under Eighteen. An information, attempting to charge that defendant was a keeper of a common bawdy house and permitted a certain female under eighteen years of age to enter and remain in said bawdy house, without charging that said act was feloniously done, is bad under a statute which makes said act a felony, although the statute does not use the word "felonious" or "feloniously." Appeal from Buchanan Circuit Court.-Hon. W. C. Ellison, Judge. REVERSED AND REMANDED. lant. Linn & Heffley and Elliott Spalding for appel Elliott W. Major, Attorney-General, and Charles G. Revelle, Assistant Attorney-General, for the State. FARIS, J.-The defendant, a woman, and the keeper of a common bawdy house in the city of St. Joseph, was prosecuted by information, duly verified, and filed by the prosecuting attorney of Buchanan county, under the provisions of section 4759, Revised Statutes 1909, for permitting a female under the age of eighteen years to enter into and rePermitting Girl main in a common bawdy house. She was to Enter Bawdy duly arraigned, pleaded not guilty, but upon a trial had by a jury she was found guilty and her punishment assessed at imprisonment House. State v. Dixon. in the penitentiary for a term of two years. Sentence was duly imposed in pursuance of said verdict, and, after taking the usual steps of filing a motion for a new trial and a motion in arrest of judgment, an appeal was prosecuted to this court. Defendant, by her motion in arrest, challenges the sufficiency of the information filed herein by the prosecuting attorney of Buchanan county. This information, omitting caption and formal parts, is as follows: "Corry C. Ferrell, prosecuting attorney within and for Buchanan county, in the State of Missouri, upon information and belief, and upon his oath, informs the Criminal Court of Buchanan Information. county that on or about the 1st day of November, 1911, at said county, Minnie Dixon was the keeper and person in charge of a certain building then and there ordinarily used by the said Minnie Dixon as a common assignation house and common bawdy house, and the said Minnie Dixon then and there permitted one Edna Frampton, a female then and there under the age of eighteen years, to-wit, of the age of sixteen years, to enter into and remain in said common assignation house and common bawdy house, against the peace and dignity of the State." In the view which we take of this case it is not necessary to discuss any other questions raised OPINION. A reading of the information discloses the fact that it nowhere charges that the acts alleged to have been committed by defendant, or any of them, were committed "feloniously." The word feloniously nowhere appears in the information. While the statute upon which this prosecution is bottomed does not mention the word "felonious" or "feloniously," yet it does say that the facts set out therein constitute a felony, and that they render the person doing them Necessity of Word Feloniously. State v. McGauley. guilty of a felony, and liable to imprisonment in the penitentiary for a term not less than two years nor more than ten years. No other penalty is affixed by this statute save and except punishment in the penitentiary. The rule that an indictment or information charging acts which are denominated felonies by the statute should allege that the act or acts constituting and going to make up the crime intended to be charged, should charge said acts to have been done feloniously, has been in force in this State for many years. There seems to be no holding otherwise. If an indictment or information does not so charge (and the information in the case at bar utterly fails to charge it), then such indictment or information has always been held in this State to be bad. [State v. Feazell, 132 Mo. 176; State v. Gilbert, 24 Mo. 380.] This view renders it unnecessary to consider the other questions raised. It results, therefore, that this case ought to be reversed and remanded, and we so order. Brown, P. J., and Walker, J., concur. THE STATE v. PETER MCGAULEY, Appellant. Division Two, February 19, 1913. MOTION FOR NEW TRIAL: Overruled: No Exception: Appeal. The appellate court is precluded in any case from an examination of anything except the record proper where the bill of exceptions fails to show that any exception was saved to the action of the court in overruling the motion for a new trial. In such case if the record proper is regular and in due form the judgment must be affirmed. Appeal from St. Louis City Circuit Court.-Hon. Wilson A. Taylor, Judge. AFFIRMED. Thomas E. Mulvihill for appellant. |