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Eldorado Springs v. Highfill.

is that the charge is insufficient because a synonym of the words used in the statute was employed instead of the words themselves. This is a mere refinement of a technicality and is without merit.

If it be further contended that the general power 'to tax and regulate granted by the statute following a specific enumeration of the extent of same is to be limited to the rule usually applicable in such cases, viz., that the general words are to be limited in their meaning to the particular words preceding them, it will be sufficient to say that while canvassers may not, strickly speaking, be ejusdem generis with merchants or peddlers, they are sufficiently so within the meaning of the statute here under consideration to form an exception to the general rule. This is especially so when we take into consideration the character of the legislation manifest in the statute and ordinances in this case, viz., the exercise of the city's police power. As was said by this court in St. Louis v. Herthel, 88 Mo. 1. c. 130, the rule of interpretation "is not to be so applied that the city is to be held powerless to tax any calling not expressly named in its charter by its proper name." This ruling authorized the licensing of "architects," not then enumerated in the statute as one of the callings to be regulated.

St. Louis v. Woodruff, 71 Mo. 92; Kansas City v. Vindquest, 36 Mo. App. 584; and Wonner v. Carterville, 142 Mo. App. 120, afford illustrations of like exceptions to the general rule in the construction of ordinances similar to the one here in question.

In the cases of Independence v. Cleveland, 167 Mo. 384, and Kansas City v. Grush, 151 Mo. 128, there was no authority in the charters or ordinances of the municipalities to regulate and license the vocations therein named and the facts were different from those

268 Mo.-33

State v. Herring and Baldwin.

in the case at bar; these cases, therefore, cannot be cited as controlling authorities here.

While it would have restricted the field of technical criticism if the ordinance had employed the terms of the statute, its conformity therewith is sufficient to require the defendant to comply with same.

In view of what has been said the judgment should be affirmed and it is so ordered. All concur.


Division Two, July 5, 1916.

1. JUROR: Prior Opinion. The fact that a juror has made up his mind from what he saw in a newspaper is no ground for challenge after he has stated he can disregard that opinion and decide the case solely from the evidence.

2. WITNESSES: Competency: Harmless Testimony. The court will not on defendant's appeal consider the competency of witnesses confined as patients in an insane asylum where they testified to nothing having a tendency to convict defendant, and their testimony was really favorable to him and could not have harmed him.


: Person of Unsound Mind: Patient Confined in Insane Asylum. Under the statute declaring that "a person of unsound mind at the time of his production for examination" shall be incompetent to testify, a person adjudged to be of unsound mind who is confined in an asylum for the insane is presumed to continue insane; but such presumption may be rebutted by a proper voir dire examination conducted by the court, and such a person is competent to testify if (1) upon examination he be found to be of sufficient mental capacity to understand the nature of an oath, that is, to know it is both a moral and legal wrong to answer falsely, and that false swearing is a punishable crime in law, and (2) if he be possessed of sufficient mind and memory to observe, recollect and narrate the things he saw or heard.



State v. Herring and Baldwin.

: Presumption: Burden: Credibility. The burden of rebutting the presumption of incompetency of a witness confined in an insane asylum is upon the party offering him; but absent such confinement, or an adjudication that he is insane, the burden of showing his incompetency is on the party objecting. And while the question of his incompetency is for the court, it is for the jury to determine the credit that ought to be given to his testimony.

5. INSTRUCTION: Reference to Information. An instruction which refers the jury to the information for matters which are not in the instruction and which are necessary for their consideration, is erroneous; but it is not erroneous if, in spite of such reference, it contains the matters necessary for their consideration, but such reference is merely surplusage and harmless.

-: Non-Direction: Manslaughter: Force by an Officer. An instruction which tells the jury that defendants, officers of an asylum for insane persons, had the right to use all force necessary to control the assaulted patient, and that if the jury should find that they did unnecessarily strike, beat and injure said patient with their feet and fists, and that said patient died therefrom, they should find them guilty of manslaughter in the fourth degree, was correct as far as it went; and if defendants desired to have the jury instructed to the effect that defendants were not required to nicely gauge the amount of force necessary to subdue the patient and that they had the right to use such force as reasonably seemed to them necessary for that purpose, it was their duty to ask for such instruction, and having failed to do so they cannot complain, since the complaint is one of non-direction, not one of misdirection.


Appeal from Buchanan Criminal Court.-Hon. Thomas F. Ryan, Judge.

Elliott Spalding and Stephen K. Owen for appellants.

(1) It was prejudicial error to refuse the challenge for cause on the part of the defendants of venireman Rogers. Sec. 5220. R. S. 1909. This man not only had an opinion, but had expressed it, and that opinion was not only an opinion, but it amounted

State v. Herring and Baldwin.

to a definite determination of the guilt of the defendants. (2) No crime was committed, proven or shown. The testimony not only fails to prove any crime, but strongly disproves any crime or intention to commit even an infraction of the asylum rule. The State's evidence, apart from any proof adduced on the part of the defense, disproves any guilt. (3) The court erred in permitting to testify on behalf of the State and over the objections of the defendant three insane patients, inmates in the asylum for the insane at the time of the homicide, and at the time of their production as witnesses, and admittedly "adjudged" insane. Sec. 6362, R. S. 1909. These men having been adjudged insane by courts of competent jurisdiction, they were insane and of unsound. mind, and the trial court had no power to inquire into their competency at the time of their production. The adjudication of these men as to their being insane, together with their confinement in the asylum fixes their status, and brings them within the statute and fixes their incompetency, and no collateral hearing or attempt to qualify them could make them competent. The binding force of an oath is based upon two things: First: The religious faith and beliefs of the witness, and his belief in God, with a proper appreciation of solemnity of calling upon Him to witness the truthfulness of the testimony, and the fear of punishment and future retribution if such testimony be false. Sec. 6349, R. S. 1909; Sec. 6353, R. S. 1909. Second: The fear of temporal punishment and the penalties for swearing falsely or committing the crime of perjury. Secs. 4344 and 4345, R. S. 1909. Had these witnesses cunningly devised or insanely conceived some parts of their testimony, which appellants contend a part of these witnesses did, to vent a spleen for a grievance, real or imagined, against one of these defendants, they could not be punished

State v. Herring and Baldwin.

for perjury. The very discussion by the court with these witnesses of the punishment to be meted out by the law made the matter worse for these defendants, for it brought to the attention of the witnesses their condition; and if they had mind sufficient to make them desirable witnesses for the State, then they had mind enough to know of their immunity from punishment, however false their testimony might be. The decisions in State v. Whitsett, 232 Mo. 527, and State v. Vaughn, 223 Mo. 155, are not squarely in point. (4) The instruction is deficient, misguiding and wholly silent as to defendants' rights and as to those matters that temper the law to accord with human weakness when sudden passion on provocation arises, and is altogether prejudicial to these defendants, and totally oblivious to their rights. State v. Watson, 95 Mo. 416; State v. Umfriend, 76 Mo. - 407; State v. Young, 99 Mo. 666; State v. Speyer, 207 Mo. 556; State v. Lewis, 118 Mo. 79; State v. Davidson, 95 Mo. 155; State v. Ellis, 74 Mo. 215; State v. Weakley, 178 Mo. 422; State v. Jones, 79 Mo. 444; State v. Elsey, 201 Mo. 571. This instruction is faulty in that it does not require the jury to find that the defendant intentionally killed deceased. State v. Hearney, 177 S. W. 305; State v. Umfriend, 76 Mo. 407; State v. Sloan, 47 Mo. 614; State v. Edwards, 70 Mo. 482.

John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.

(1) When a jurior on his voir dire examination declares that his opinion is not such as to bias or prejudice his mind, and that his opinion will readily yield to the evidence in the case, he is a competent juror. State v. Church, 199 Mo. 629; State v. Darling, 199 Mo. 196; State v. Sykes, 191 Mo. 75; State v. Sherman, 264 Mo. 379. (2) Upon their voir dire

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