2. Indictment and information 189(1)—Con- without any hearing of any evidence on which viction of lesser offense than charged proper. to base it, where defendants were indicted unOne charged under Rev. St. 1909, § 4755, der Rev. St. 1909, § 4755, for the felony of with the felony of keeping a bawdyhouse with- keeping a bawdyhouse within 100 yards of a in 100 yards of a church may be convicted unchurch, but were convicted of the misdemeanor der section 4754 of the lesser charge of keep- under section 4754 of keeping a bawdyhouse, it ing a bawdyhouse. was not error to refuse to quash the indictment merely because the grand jury heard no evidence as to the distance between the church and the bawdyhouse; this being essential to the felony charge; but not to the misdemeanor of which defendants were convicted.

3. Criminal law 1173(3)-Failure to instruct against conviction of higher degree of

crime held harmless.

On trial for keeping a bawdyhouse within 100 yards of a church, made a felony by Rev. St. 1909, § 4755, where there was evidence only of keeping a bawdyhouse, a misdemeanor under section 4754, failure to give a cautionary instruction that the jury could not, under the evidence, find defendants guilty of the felony charge was not prejudicial, where the felony was not submitted and defendants were not convicted of that offense.

On a motion to quash an indictment, the trial court should not inquire into and review the evidence heard by the grand jury and quash the indictment, if it be found that only incompetent evidence or no evidence was heard to sustain some particular fact necessary to constitute the 893-Conviction of lower is offense charged; and particularly so when acquittal of higher grade of offense, such fact merely has to do with the grade of the offense.

4. Criminal law

Conviction of the lower grade of an offense is necessarily an acquittal of the higher offense charged, without any formal verdict of not guilty.

5. Disorderly house 9-Husband and wife may be jointly liable.

A husband and wife may be jointly indicted and convicted of keeping a bawdyhouse, where it appears that she actively participated in committing the offense.

6. Criminal law 824 (6)-Failure to instruct
that marriage between co-defendants should
be considered not error in absence of request.
In trial of husband and wife for keeping a
bawdyhouse, where no instruction was asked
that the wife's relationship to her husband as
the head of the family should be considered in
determining her guilt, the court was not bound

to so instruct of its own motion.
7. Criminal law 881 (4), 893-Verdict of
guilty as charged held good; verdict read in
light of instructions.

Since indictment of defendants charging the keeping of a bawdyhouse within 100 yards of a church, made a felony by Rev. St. 1909, 4755, comprised the charge of the lesser of fense of keeping a common bawdyhouse, punishable as a misdemeanor under section 4754, a verdict merely of "guilty as charged" was not error, on the ground the charge was a felony, where the only instruction given relating to the verdict required the jury to find the facts constituting the offense of keeping a common bawdyhouse, and, if so found, to find the defendants guilty of a misdemeanor, and to assess their punishment at a fine; for the verdict must be read in the light of the instructions.

On Motion for Rehearing.

8. Criminal law 1167 (3)-Refusal to quash indictment for defects affecting felony harm less where defendant convicted of misde

meanor,

In view of the rule that an indictment will be quashed for not being based on evidence only if it appears that the indictment was returned

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

J. L. Bragg and Mrs. J. L. Bragg were convicted of keeping a bawdyhouse, and appeal. Affirmed.

Mayes & Gossom and B. A. McKay, all of Caruthersville, for appellants.

C. E. Bragg, of Caruthersville, for the State.

STURGIS, P. J. [1] The indictment in this case is under section 4755, R. S. 1909, and charges that defendants, who are husband and wife, did set up and keep and maintain "a common assignation house or a common bawdyhouse" within 100 yards of a certain building ordinarily used as a church. The indictment was challenged in the trial court, and is challenged here on the ground that it follows the language of the statute in saying "common assignation house or a common bawdyhouse" in the disjunctive, instead of substituting "and" for "or" and making same in the conjunctive. The defendants cite a number of cases (State v. Fitzsimmons, 30 Mo. 236; State v. Pittman, 76 Mo. 56; State v. Grossman, 214 Mo. 233, 242, 113 S. W. 1074; State v. Currier, 225 Mo. 642, 649, 125 S. W. 461) holding that where an indictment is founded on a statute which enumerates several cognate but distinct acts constituting an offense, or the various intents necessary to constitute such offense, disjunctively, then the indictment must charge same conjunetively. This is illustrated by the present indictment; for while the statute defines the offense as "setting up or maintaining" a common bawdyhouse, the pleader has properly charged the defendants with setting up and maintaining such an house. This rule applies, however, only to statutes which make an act criminal when done in several differ

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(220 S.W.)

ent ways or with different intents, or where several different acts are made one offense. As said in State v. Cameron, 117 Mo. 371, 375, 22 S. W. 1024, 1025:

"Where a statute in one clause forbids several things or creates several offenses in the alternative, which are not repugnant in their nature or penalty, the clause is treated in pleadings as though it created but one offense; and they may all be united conjunctively in one count, and the count is sustained by proof of one of the offenses charged."

This rule, however, does not apply when the disjunctive words are mere synonyms having the same meaning and used to describe or characterize the same act or thing, nor to words which are merely different names for the same thing. Thus it was held in State v. Larger, 45 Mo. 510, not to be bad pleading to charge that defendant abandoned his wife and failed to "maintain or provide" for her, since the words "maintain" and "provide" mean substantially the same thing, and that a failure to do one is a failure to do the other. So in State v. Nelson, 19 Mo. 393, the indictment charged defendant with permitting a gambling device adapted and designed for the purpose of playing games of chance for money or property, and this was held good. In State v. Moore, 61 Mo. 276, the court ruled that

"An indictment for arson is not fatally defective for describing the property burned as a 'house or building,' the words being evidently used in a synonymous sense, and to designate the same object."

jury found each defendant guilty as charged, and assessed a fine of $1,000.

Defendants urge that, as there was no proof of the offense as charged, that is, proof of the element making the offense a felony, defendants' demurrer to the evidence should have been sustained. State v. Parker, 262 Mo. 169, 170 S. W. 1121, L. R. A. 1915C, 121, is relied on. What defendants denominate a demurrer to the evidence is an instruction to

find defendants not guilty. The Parker Case holds that one charged with robbery may be convicted of larceny, since robbery includes larceny, with the added element of unlawfully taking another's property from his person by force or putting him in fear. This case is therefore good authority for holding that a person charged under section 4755 with the felony of keeping a bawdyhouse within 100 yards of a church may be convicted under section 4754 of the lesser charge of keeping a bawdyhouse. See, also, State v. Quinn, 170 Mo. 176, 67 S. W. 974, 70 S. W. 1117; State v. Keeland, 90 Mo. 337, 2 S. W. 442; State v. Walken, 133 Mo. App. 247, 113 S. W. 221.

[3, 4] The Parker Case, supra, was reversed and remanded because the evidence did not prove the higher offense of robbery of which the defendant was convicted, but the court held that he could have been convicted of the

lesser offense of larceny had that offense been submitted by the instructions. It does not hold that defendant was entitled to an instruction to find him not guilty. The court here did what the Supreme Court said should

It was ruled by this court in State v. Keith-have been done in the Parker Case-submit ley, 142 Mo. App. 417, 423, 127 S. W. 406, that the terms "bawdyhouse" and "assignation house" mean the same thing, and are synonymous words, designating the kind of house the keeping or maintaining of which is made an offense. This assignment of error is overruled.

the case for the lesser offense only. Had the defendants asked a cautionary instruction telling the jury that it could not, under the evidence, find defendants guilty of the felony charge, the court probably would have given it; but, as the felony was not submitted and the jury did not convict of that offense, defendants were not harmed. It would have been the merest formality to have had the jury return a verdict of not guilty as to the felony in addition to the verdict they did

same. A conviction of the lower grade of the offense is necessarily an acquittal of the higher offense charged, without any formal verdict of not guilty. State v. Ball, 27 Mo. 324, 327; State v. Grimes, 29 Mo. App. 470, 478; State v. Ross, 29 Mo. 32, 41.

[2] The indictment in this case is drawn under section 4755, R. S. 1909, but the conviction was under section 4754. The latter section makes it a misdemeanor to set up or keep a common bawdyhouse or house of as-return, and the result would have been the signation. Section 4755 makes it a felony to commit this offense within 100 yards of a church, schoolhouse, or other designated public building. In trying the case the state offered abundance of evidence sustaining the charge of keeping a bawdyhouse, but offered no evidence that same was within 100 yards [5, 6] The same question is raised here as of a church as charged. That it was near a in State v. Keithley, 142 Mo. App. 417, 127 church was shown incidentally, but the dis- S. W. 406, to wit, that the husband is pretance therefrom was not shown. The instruc- sumed to be the head of the family, and is tions given relate only to the offense of keep- presumed to be alone liable for an unlawful ing a bawdyhouse, saying nothing as to its use of the house in which he and his wife location with reference to a church, and di- live. The husband and wife may, however, rect the jury that if they find that defendants be jointly indicted and convicted of the prescommitted this offense, then to find them guil-ent offense (State v. Bentz, 11 Mo. 27), where ty of a misdemeanor and assess the punish- the evidence shows that she actively particiment as prescribed by section 4754. The pated in the commission of the offense (State

v. Keithley, supra). The evidence here so shows. The criticism is that the instructions ignored the presumptions mentioned, and the jury should have been instructed to consider her relationship to her husband in determining her guilt. No such instruction, however, was asked by defendants, and the court was not bound to so instruct of its own motion. State v. Keithley, supra.

the verdict, and that the jury has found all the facts necessary to support it.''

The evidence abundantly sustains the verdict, the defendants had a fair trial, and the judgment is affirmed.

FARRINGTON and BRADLEY, JJ., con

cur.

On Motion for Rehearing.

STURGIS, P. J. [8] The motion for rehearing is based on the failure of this court to pass on the assigned error that the trial court refused to quash the indictment, and rejected proper evidence showing that the indictment was returned by the grand jury without that body hearing any evidence. This point was not overlooked by this court, and our reason for overruling it is that the facts presented, including the evidence rejected, do not bring the cause within the rule that an indictment will be quashed if it is

without any hearing of any evidence upon which to base it." State v. Faulkner, 185 Mo. 673, 697, 84 S. W. 967, 974; State v. Grady, 84 Mo. 220, 223; State v. Cole, 145 Mo. 672, 673, 47 S. W. 895.

[7] Error is also assigned as to the sufficiency of the verdict, in that it found the defendants guilty as charged; the charge being a felony. There are separate verdicts against each defendant, each stating that the jury finds the defendant named guilty as charged, and assesses the punishment at a fine of $1,000. This verdict must be read in the light of the instruction given, and the only instruction given relating to the verdict required the jury to find the facts constituting the offense of keeping a common bawdyhouse, and, if so found, to find the defendants guilty of a misdemeanor and to assess their punish-shown that "the indictment was returned ment at a fine of not less than $200 or more than $1,000. In a sense the indictment charged both the greater and the lesser of fense, for the lesser is included in the greater. The state clearly abandoned the felony charge throughout the trial, as shown both by the evidence and the instructions. So far as this trial was concerned, it was on the misdemeanor charge, and so the court and jury understood. The punishment, for the felony charge (section 4755) is solely a penitentiary offense. The verdict is responsive to the instructions, and the words "as charged" clearly meant the charge submitted to the jury for decision. In State v. Ball, 27 Mo. 324, 327, the indictment was for murder in the first degree. The verdict of the jury found defendant guilty of murder in the second degree "in manner and form charged in the indictment." No reversal was had. This case is wholly unlike State v. Miller, 255 Mo. 223, 229, 164 S. W. 482; State v. Cornwall, 88 Mo. App. 190, and like cases. It is more like that of State v. Lovitt, 243 Mo. 510, 147 S. W. 484, where on an indictment for assault with intent to rape, the offense of common assault was also submitted by the instructions. A general verdict of guilty assessing the punishment at two years in the penitentiary was returned. The court said:

"The instructions authorized the assessment of the penalty of imprisonment in the penitentiary only in case of a conviction of the higher offense, and a penalty of a fine or imprisonment in the county jail in case of a conviction of common assault. In determining the sufficiency of a verdict the controlling object is to learn the intent of the jury, and if such intent may be ascertained and the verdict made definite and certain by reference to the pleadings and instructions, it will be sustained, and all reasonable presumptions are indulged to sustain

[9] The defendants offered to prove no more than that the grand jury heard no evidence that the alleged bawdyhouse conducted by them was within 100 yards of a church. This is essential to the felony charge, but not essential to the charge of which defendants were convicted. The defendants offered to prove that the evidence heard by the grand jury as to the distance from the church was furnished by two of their own number. This evidence may have been incompetent and the procedure irregular, but, as said in the Faulkner Case:

"In this inquiry it must be remembered that the question involved is not as to the sufficiency of the evidence authorizing the finding of the indictment, or that there may have been incompetent testimony heard-of that, the grand jury were the judges-but the question is whether they had before them any evidence at all."

See, also, McKinney v. United States, 199 Fed. 25, 117 C. C. A. 403. Certainly on a motion to quash an indictment the trial court should not inquire into and review the evidence heard by the grand jury and quash the indictment if it be found that only incompetent evidence or no evidence was heard to sustain some particular fact necessary to constitute the ouense charged; and particularly so when such fact merely has to do with the grade of the offense.

The motion for rehearing is therefore overruled.

BRADLEY and FARRINGTON, JJ., con

cur.

(220 S.W.)

Appeal from Arkansas Chancery Court; Guess you are getting tired waiting for your John M. Elliott, Chancellor.

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On March 7th appellant J. B. Adams wrote [ Of course, parties may make time of the appellee that he was needing money, and for essence of their contract, and the parties here fear appellee's loan would not go through he might have contracted that appellee should was letting his father, the appellant G. W. pay the bank for the deed upon receipt of Adams have the lots, and on March 8th J. notice that it was in the bank's possession for B. Adams notified the bank to return the delivery, but they did not do so. Upon the deed and the abstract. On March 11th a ten- contrary, the conduct of the parties and their der of the $650 was made by appellee to the correspondence shows that time was not of the bank, but the tender was refused on the essence of the contract. ground that the deed had been ordered returned. Thereafter, on March 29th, this suit was filed, and the statutory lis pendens notice given.