*1 applied policy health itself such sound condition ute stipulation contract instant ease. That is a of the as agreed right make. parties had a to and did The insurer which the be, liability only upon to assume condition that the insured should be, merely policy believe herself to in sound health when the issued, premium upon basis. insurer was fixed Had the applicant known disease for insurance was afflicted probably did, it would, death, as soon cause her it doubtless would policy. not have issued the To hold in such a case that the statute makes immaterial misrepresentation and ineffectual a relied though upon by insurer, actually even matter misrepresented policy contributed to the on which payable, event is to become unless the insured knew in opinion or of the court or should presumed representation to have known so made and upon relied and stipulated policy upon as a condition which false, risk was assumed was would be to read into the statute something language say construction its impose does not and to agree the insurer a risk it did not to assume and the ex- press terms of the contract declined to assume. misrepresentation
The
5732, supra, provides
Section
statute,
question
that the
of whether
misrepresented
the matter
contributed
to the
policy
event on which
payable
is to become
ques
shall be a
tion
jury.
power
Yet the
remains in the court to determine
whether
there is
authorizes submission of
jury.
case to the
ex rel. John Hancock Mut.
Ins. Co.
Life
[State
v. Allen,
Division *2 Steimrt and L. L. Collins for Fred Hoffman, Jr., Attorney General, and John W. McKittrich,
Boy General, respondent. Attorney Assistant *3 WESTHUES, Appellant was in convicted the Circuit Court C. County, Missouri,
of Greene robbery dangerous of the crime of with a deadly weapon. punishment years’ assessed was ten im- prisonment in penitentiary. Appellant filed motion for a new trial, which was overruled the court appellant and thereafter was sentenced. From this appealed. he sufficiency of the evidence to sustain the jury verdict of the questioned. was not A short will, statement of the case therefore, night May 21, suffice. On filling three men entered a station, being which operated by Walker, -was one Jack adjoining Highway No. about ten of Springfield, miles west Missouri. At shotgun of a one of the men ordered Walker and his wife kept guard to sit chairs. He them under while the other two ' men took two slot machines and loaded them into a car. The State cigar box, also introduced containing evidence $37 in about change, ivas taken from a back room in Appellant ivas station. positively identified as one of the men wdio robbery. committed this Later the slot garage machines were found in of appellant’s Appellant mother-in-law. explained that three men came to the home night robbery of his mother-in-law on the while he was there asked permission to store garage, machines granted. request Appellant having any denied taken in the robbery and offered evidence of an alibi.
Appellant’s complaint first in his motion for new trial was sustaining that the trial court erred motion to sup press panel jurors try selected to the case. The evidence support following: jurors of this motion A panel shows the of twelve they had been selected. About try the time to be sworn were case it was appellant discovered that present. Appellant was not had given appear jurors bond to for trial. The were admonished not to talk permitted subject about the and were separate, case to the call of jurors jury the court. Some of the permitted were to sit as men in another case. days appellant Two later was apprehended and jurors, previously selected, the twelve case pro sworn and the suppress ceeded to trial. Evidence was heard on the motion to panel prior Appellant’s only explanation to the trial. of his absence was, jury was being as the selected the prosecuting jurors prospective appeared him; and the to be mad at that a num whereupon absent, frightened ber of his witnesses were he became and left courtroom. The evidence offered on the motion does any good why not reveal panel sup reason should have been pressed. The fact that left courtroom could have been proven by in a trial might before other have Appellant, during trial, fully been selected. explained Appellant the reason his absence. also called as a witness doctor, suffering who testified was from a disease which subject him probability rendered to nervousness and that in all ap pellant wrong doing anything did not realize he was when he Appellant position left the courtroom. no worse before jury than he would have been before other. The in this *4 hearing suppress they case testified in the on the motion to that way prejudiced flight. in no the defendant because of the equivalent suppressed panel To have the in this case would have been advantage certainly taking wrong. to his defendant of own This unique disqualify panel a of way be a for a defendant to would liking. point his The ruled to is assignments and of error as In second third the trial the counsel to permitting the court erred in State’s serts upon cross-examine and wife matters not referred to on carefully direct examination. We have read the with these assignments record discloses that the trial court mind. The objections every question promptly to asked of sustained any matter appellant and wife with reference to not re both examination. It must be borne in mind ferred to on direct that the categorical review of attorney was not limited to the prosecuting counsel, liberty by but was at to cross- questions appellant’s- asked 788 being- witness any subject upon which the
examine reference to 58 gave testimony. Simmons, 332 247, v. Mo. cross-examined [State 12 (2d) ; Wilson, 564, 321 Mo. 302, (12) W. 304 v. S. l. c. State 82, 3 W. (2d) 445, (2); Berning, 446 91 Mo. S. S. W. l. c. State v. 18 588; State Mastin, 495, 15, 277 211 S. l. c. v. Mo. W. (3).] assigns of the court Appellant error the action trial next as information, in prosecuting the permitting attorney the to read cluding affidavit, jury. to record discloses the the following the to have occurred: ‘‘ by opening on was made Nat statement of State Benton, Prosecuting Attorney, beginning which he at the of stated as follows: “ (Mr. BentoN) jury; I will informa- : of the read the Gentlemen in this ease: tion objected reading case, the information in this
“Defendant to of solely Court, pleadings for the reason that the were addressed jury; reading not to the of the information in this ease only prejudice jury against defendant. would serve to objection by “Which Court overruled. counsel, ruling defendant, by
“To which of the Court the then duly excepted. there at time thereupon jury by Benton, “The information was read to the Mr. being prosecuting attorney; same as follows.” Then follows copy information, including prosecuting of affidavit attorney. foregoing any From the record we cannot determine with degree certainty attorney prosecuting of the affidavit of the objection jury. was in fact read to the Neither the nor the record pointed specific makes reference to the affidavit. It was out in (2d) Brown, 426, practice 62 State v. S. W. the better to prosecution is, followed in the of criminal cases not to read in jury, attorney prosecuting formation to the but for the to make case, required by 3681, a statement of the State’s as Section Revised (Mo. Ann., p. 3227); Loeb, 190 299, Stat. Statutes (1); Richards, 485, l. c. 303 v. 334 Mo. State In a number of states the indictment or' information is statute re quired prior to be read to to the introduction evi dence State. J. sec. This for the pur C. [See charge against him, pose informing the defendant of to which charge may Missouri, plead. supra, he In under Section required state in prosecuting substance what the State prove against Loeb, supra, the defendant. intends [State *5 78 Honig, v. Mo. While as we have said better prac State the 249.] information, reading cannot how the tice is not to read the we see jury, charge indictment, of be it an information or can of in view the court’s considered reversible error instruction which
789 In this case give doubt. is bound to witb reference to reasonable it in as follows: gave part read the court an instruction presumption and this presumed “A innocent defendant to be is guilt your state, to by evidence, remains establishes until ours.) (Italics beyond doubt, a satisfaction and reasonable etc.” readily evi produce that the State must Jurors would understand merely was guilt of the information or indictment dence defendant, requests, A if he is entitled to an an accusation. so informing jury or indictment instruction that the information charge a be considered as evidence mere formal and not to in court, of own motion to so however, required him. A is not its 26; 37 983, 25, Baker, S. 2387, *6 argument urged trial and in brief. In oral it was fatally charged information was property defective that it presence was taken will of Jack and the said ‘.‘from Walker,’! allegation argued language it was was not in the (Mo. Ann., statute. Section Revised Statutes Stat. p. 2856), reads as follows:
“Every feloniously person taking who convicted of shall be property person, presence, of another from his or ours.) will,” (Italics etc. pointed grammatical
The variance out is at most but a error and could not have misled mention was No made argument until the oral in this court. The defect cannot be declared being good assignment to be fatal. The information in substance the against appellant. is ruled The record does ma- disclose is, therefore, terial Cooley error. affirmed. Bohling, (7(7.,concur. C.,
PER foregoing opinion CURIAM:—The Westhues, opinion adopted judges as the All of the court. concur. a Cor John Feltz Terminal Louis, Railroad of St. Association Appellant. (2d) 616. poration, Two, March Division struct. C. J. sec. notes [16 therefore, point 810, (2), We, l. c. 811 136 Mo. rule the against appellant. assigned charge jury, of Error officer in was because the hours, jury deliberating leave of had been several without after telephone court, permitted hold conversations and there with An af by an to communicate outsiders. opportunity afforded setting attorneys facts, of for forth appellant, fidavit of one these jurors motion for new trial. Affidavits were was filed jurors prosecution which in substance revealed filed permitted telephone with mem had been to use the to communicate in none of the personal of their families about matters and that bers on trial. The af reference made to the case conversations affirmatively attorney disclosed that he was fidavit of the for making present personally observed that the use of appears from the affidavit that the trial telephone. a It further knowledge showing no fact. No was made that the court had of this reported trial for this matter to the court or in until in for new trial. complained it was manner the motion idly by attorneys such a sit and do If a defendant and in case question motion a new trial raise the until for not very good reason that considered waived. This for the must be may keep back party a matter of kind lawsuit bring him forth ground, gamble on a verdict and in case it is a new trial. C. J. question for the first time and obtain [16 449, 144 464 1161, 2670; Rasco, 535, v. 239 Mo. l. c. sec. State See, also, Malone, 594, 333 (34), v. Mo. and cases there State cited.] (2d) 909, (11) Trainer, v. 336 Mo. 62 W. l. c. and State S. (2d) condoning 80 W. 131. We not want to be understood as S. do charge duty on the of the officer the dereliction of repeatedly affidavits in this case. We have as disclosed Malone, Mo. practices. condemned such State [See 913 (8).] l. c. disposed motion new points We have of all raised