State v. Saunders. In re Hess, supra, it is held that where a person is charged with the commission of an offense against two separate States and is apprehended in one of them and the law of such State has been put in force against him, it has exclusive jurisdiction of the prisoner until the demands of its laws are satisfied. If, however, the Governor of such State honors a requisition for the prisoner made upon him by the Governor of the other State and surrenders him to the demanding State, it will operate as a waiver of the jurisdiction of the asylum State. In State v. Allen, supra, the defendant had been arrested in Tennessee, charged with murder, but while on bail was arrested as a fugitive and delivered to the Governor of Alabama. He failed to appear when his case was called for trial in the latter State. The court in an action on his bond at page 263, said: "By the Constitution and laws of the United States, the Governor of Alabama had the right to demand Allen, and the Governor of the State of Tennessee had the power to give him up. Indeed, it would have been his imperative duty to have done so, had he not rendered himself by the commission of crime amenable to our criminal law. This would have justified the Governor of Tennessee in detaining him until he had made satisfaction therefor; but he chose not to do so, but to surrender him. This, we think he might legally do, and the act was not one of supererogation." The rules announced in the cases cited in support of the action of the Governor of a State in granting a requisition under facts similar to the case at bar, are more convincing than those urged in support of the rule announced in the Opinion of Justices; and the application of the former cannot but prove more conducive to the effective administration of the criminal law than the latter. While the premises stated in support of the rule as announced in the Opinion of Justices may be abstractly correct, the correctness of the conclusion deduced State v. Saunders. therefrom is subject to question, in that it does not follow that the Governor's act was such as to require the concurrence of one of the other coordinate branches of the Government, viz., the judicial, to render it effective. The question arises, therefore, as to whether it may not properly be regarded as in the nature of a pardon. It released the appellant from the punishment he was undergoing in Iowa, in order that he might be prosecuted for an offense in Missouri. Notwithstanding the condition of this release, we are of the opinion that it became absolute upon his surrender to the authorities. of this State. If so, then it was unquestionably in the nature of a pardon, and hence the objections here made to the action of the Governor must go for naught. It was so held in Re Hess, and in State ex rel. v. Hagan, supra. However, if this assignment be viewed from a wider vantage, it cannot be sustained. That appellant was a fugitive from justice in having gone into another jurisdiction while a criminal charge was pending against him here does not admit of question. The formal requirements of the United States Constitution, the act of Congress, and the laws of Missouri having been observed in securing the custody of his person by the authorities of this State, we need not concern ourselves with the regularity of his release by the Governor of Iowa. The limit of our review is confined to the validity of the charges preferred against him and the regularity of the proceedings resulting in his conviction in this State. The courts of Iowa were open to him to interpose objections to his release from imprisonment there at the time of the Governor's action. He did not see proper to avail himself of this privilege. It may be reasonably inferred, therefore, that he waived the benefit of whatever right he then had in that behalf. It has not only been held in Iowa and our own State but elsewhere, that a defendant in a criminal case may waive the benefit of a law intended for the protection of his rights. [State v. Smith, 132 Iowa, 645; Busse v. Barr, 132 Iowa, 463; State v. Mitchell, 229 Mo. 683, 138 Am. State v. Saunders. St. 425; State v. Shellman, 192 S. W. 435; State v. Leach, 193 S. W. 916; State ex rel. McWilliams v. Dr. Dist., 269 Mo. 444; State v. Loesch, 180 S. W. 875; Harris v. People, 128 Ill. 585; Comm. v. Dailey, 12 Cush. (Mass.) 80; State v. Såckett, 39 Minn. 69; People v. Petrea, 92 N. Y. 128; Hallinger v. Davis, 146 U. S. 314.] II. Numerous errors are assigned in the giving of instructions. Other than those to which we will make particular reference, they conform to established precedents and were authorized by the evidence. Instruction numbered 6 given at the request of the State is complained of. It is as follows: "The jury are instructed that the only question before the jury is the guilt or innocence of T. M. Saunders of the offense charged in the information, that is, did Other he or did he not feloniously, in the night time, Offenses. on or about the 7th day of August, 1917, at the County of Livingston, State of Missouri, take, steal and carry away from the premises of George W. Draper, upon which the dwelling house of said George W. Draper was situate, sixteen white Wyandotte chickens, if any, or any other number of chickens, the property of George W. Draper? And the jury are instructed that the evidence of other similar offenses committed on or about the same time by the defendant, acting alone or acting jointly with Joseph Loney, if the jury believe from the evidence that other similar offenses were so committed, was admitted for the purpose of showing the intent, if any, with which the defendant, T. M. Saunders, acted in this case, and for the purpose of showing or tending to show a series of offenses of the same character, as throwing light on the question of his guilt or innocence of the offense charged in the information herein, and must be considered by the jury for this purpose only, and unless the jury find from the evidence that the said T. M. Saunders did commit the offense charged in this case, as defined in these instructions, they are to find him not guilty." State v. Saunders. The offense charged is larceny. The evidence on the part of the State was direct in regard to the appellant's participation in the crime. Under such circumstances, testimony as to other crimes was inadmissible and the instruction was erroneous in not confining the issue to relevent facts. We held in State v. Spray, 174 Mo. 569, that where the testimony establishes the commission of a larceny, proof of intent is unnecessary, because the act carries the intent with it. In the Spray case, the various rulings of this and other courts are reviewed and the conclusion reached that such testimony as that upon which the instruction under review is based, was inadmissible. In the later case of State v. Cummins, 279 Mo. 192, the admissibility of testimony of other offenses is again discussed and it is held that such testimony is not admissible in larceny cases, there being no reason for proof of motive or intent or the showing of mistakes or accident, or the identity of the person charged with the commission of the crime. These essentials to a conviction being present, the instruction was erroneous. We are personally inclined, as we were in the disposition of this case in Division No. 2, to hold that the giving of the foregoing instruction was not such error as to be prejudicial to the appellant. The offense charged laid the ownership of the chickens stolen in one of the several owners of the chickens found in the possession of Loney the night of his arrest, after the flight of the appellant. All of these chickens were taken in the same raid upon the hen roosts of a neighborhood and the "other offenses" testified to and to which the instruction had reference were those committed on this occasion. While this instruction was, therefore, technically erroneous in being based upon inadmissible testimony, the "other or similar offenses" to which it had reference were, in reality, a part of the same transaction; the testimony in regard thereto was, therefore, almost inseparably connected with that in regard to the State v. Saunders. crime charged and it is difficult to see how the appellant could have been injured by its introduction and the giving of the instruction. However, my associates differ with me in this regard, holding, in this case at least, that in the absence of a satisfactory showing that an erroneous instruction is harmless, it will be presumed to be prejudicial to the party against whom the error is committed. Instruction numbered 7, given at the request of the State, defines the presumption arising from proof of flight. This instruction as given has frequently been approved by this court and there is no merit in the objection urged thereto. [State v. Brook, 92 Mo. 1. c. 585 and cases; State v. Lewkowitz, 265 Mo. 1. c. 633; State v. Topalovacki, 213 S. W. 1. c. 105.] Flight. Error is assigned in the giving of instruction numbered 13, which is as follows: Other "The jury are instructed that the evidence offered tending to show that defendant has been convicted of other crime or crimes, was admitted solely for the purpose of aiding the jury in determining the weight and credibility to be given to the testimony of defendant, and should be considered by the jury for that purpose alone, and such testimony should not be considered by the jury as any evidence of defendant's guilt of the crime with which he here stands charged." Appellant was a witness in his own behalf. It was shown by his testimony that he had been convicted of chicken-stealing and sentenced to the penitentiary in Iowa. This testimony was admissible to aid the jury in determining the credibility to be given to appellant's testimony and its purpose was so limited in the instruction. The latter, therefore, was not error. [State v. Carr, 146 Mo. 1; State v. Boyd, 178 Mo. 1. c. 13; State v. Vaughan, 199 Mo. 108.] Properly interpreted, there is no conflict or inconsistency, as contended by the appellant, between this instruction and that numbered 6, which we have reviewed. |