Gantt, P. J.
The defendant in this case was indicted at the October • term, 1892, of the criminal court of the city of St. Louis. The defendant together with one Patrick Duffy was charged with the rape of Mrs. Ellen Rose, a woman over fourteen years of age, at the city of St. Louis, on the second day of November, 1892. The indictment was returned on November 3, and, for want of time to hear the cause at the October term, was continued to the November term. At the November it was again continued “as On affidavit” and specially set down for January 30, 1893. A severance was granted defendant on January 4. On Janu[11]*11ary 30 defendant was arraigned, Ms plea of not guilty entered, a continuance refused, and cause set down February 6, at which time both sides announced ready, and cause tried to a jury and defendant convicted and his punishment assessed at thirty years in the penitentiary. • '
The evidence in this case is such as to cause a • regret that it should ever find a place among the records of this court. Certainly it is such that should not stain the published reports; For the purposes of this opinion, it is sufficient’ to say that the evidence discloses that on November 2, 1892, Frank T. Rose and his wife, Ellen Rose, came from their farm near Falling Springs in St. Clair county, Illinois, with a wagon load of produce consisting of vegetables, butter, eggs and honey. During the day they sold their produce and about five o’clock started for their, home, by way of the Cahokia ferry, their usual route. When they reached the ferry, they were informed by the ferryman that he would make no other trip that night.
While considering whether they should go up the river and cross the bridge, they were pursuaded by one Schweigeler, who kept a lodging house and saloon, to stay all night with him. His establishment was on the levee between Anna and Sidney streets, near the ferry landing. They put up their horse, had their supper, and after supper Mrs. Rose concluded that she would visit a relation of hers on Papin street, some distance up the city. Mr. Rose was suffering from rheumatism and the weather was cold, with a drizzling rain prevailing, and on this account did not accompany his wife. Mrs. Rose was then about fifty-eight years of age, the mother of six children. Leaving her husband, she went to Broadway, thence north until she reached the French Market. Here she was overtaken by the rain and took refuge in the Market near the junction [12]*12of Broadway and Chouteau avenue. On account of the rain, she abandoned her visit to her relative and after the rain started to return to her husband. She, however, stopped at a grocery store where she had had some dealings. It appears to. have been after eleven o’clock when she reached Anna street on her return. On Anna street she met or passed two police officers, Anton and Manger. Of these she inquired the way to Schweigeler’s and they directed her to go down Anna street to the river. When she had gone about two blocks east of Anna, after passing the officers, she was suddenly seized by two men and forcibly carried into a lumber yard and according to her evidence, cruelly outraged.
Her evidence is corroborated by Officer Anton, who, on his return to that vicinity of his beat that night, heard her groans. Being attracted thereby, he went into the lumber yard where he discovered this defendant on top of Mrs. Rose, 'and heard his obscene expressions. Immediately by him, only about four feet distant, sat his codefendant, Duffy. The officer.hurried to the spot and gave defendant two or three strong slaps with his club, and arrested both defendant and Duffy. He testifies that during all this time Mrs. Rose was groaning as if in great pain. Her clothing was covered with mud; her underclothing bloody and torn; her nose bleeding and bruised, and when she reached the police station there were marks showing' she had been choked severely. Mrs. Harris, the police matron, who saw Mrs. Rose during the forenoon of that day, (November 3) fully corroborated the facts as to her bruises and bloody condition and the mud on her clothing.
Defendant’s defense was very equivocal. Having been caught by the offieer and kept under arrest, he made no attempt to deny, that he and Duffy were with Mrs. Rose, but sought to make the impression that she [13]*13solicited them to receive these favors of her, unsolicited by them. When asked in chief by his counsel, if he ravished ■ her or if he had connection with .her, his answer was, “No sir, not then.” Later on he denied that he either raped her or had connection with her at all, voluntary or otherwise. He admitted, -however, that when the officer, Anton, appeared on the scene, he was lying by the side of the old lady, in the lumber yard, on the wet ground, in a misty rain.
It was also apart of the defense that Mrs. Rose was intoxicated that night. As to this, her husband swore she was perfectly sober when she left him to go up town. Both Anton and Manger, the officers, swore she was not drunk or at least had none of the signs of intoxication about her when she passed them about midnight, on Anna street. Mrs. Harris, the matron; says she had no appearance of having been drunk next morning. It was attempted to show by a saloon keeper and two or three other witnesses that about twelve o’clock that night she was in the saloon of one Menge; that while there she drank three glasses of beer and called for' the fourth which was refused her. Menge identified Mrs. Harris, the matron, as the woman who was in the saloon, but, as soon as he discovered that it was the matron, took it back. Mrs. Rose positively denies ever being in that saloon that night and the identification was exceedingly unsatisfactory.
The only explanation defendant gave of the compromising position in which he was caught by the officers was that the old lady had asked them to show her the way to the ferry and he and Duffy wanted to show her.
There was evidence that defendant had a- good character for sobriety, truth and veracity and morality in that neighborhood.
[14]*14I. The point made in this court that the criminal court erred in refusing a contiuuance cannot be considered by us, because no exception was saved to the refusal.
II. Among other things, appellant complains that the court refused to permit him-to ask Mrs. Rose “if the officer, Anton, did not induce her to come over to St. Louis and make this prosecution.” The court did exclude this question but defendant’s counsel immediately propounded this question: “Whatinducement, if any, did officer Anton make to you to induce you to come over here and make this prosecution?” This question the court permitted and she answered fully that, “he didn’t make any inducement.” The two questions are so similar that it is absolutely certain no harm did or could have accrued fróru the refusal of the first, when the second was permitted. State v. Sansone, 116 Mo. 1; State v. Smith, 114 Mo. 406.
III. It is also suggested as error that the court erred in permitting the prosecuting attorney to offer in evidence the bloody underclothing of the prosecuting witness, after having first fully identified them and accounted for their ■ keeping. The objection was not that these garments were not competent, but that their evidence “tvas not responsive to any examination made by counsel of defendant.” The objection was not good for the reason assigned or for any other legal reason.
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Gantt, P. J.
The defendant in this case was indicted at the October • term, 1892, of the criminal court of the city of St. Louis. The defendant together with one Patrick Duffy was charged with the rape of Mrs. Ellen Rose, a woman over fourteen years of age, at the city of St. Louis, on the second day of November, 1892. The indictment was returned on November 3, and, for want of time to hear the cause at the October term, was continued to the November term. At the November it was again continued “as On affidavit” and specially set down for January 30, 1893. A severance was granted defendant on January 4. On Janu[11]*11ary 30 defendant was arraigned, Ms plea of not guilty entered, a continuance refused, and cause set down February 6, at which time both sides announced ready, and cause tried to a jury and defendant convicted and his punishment assessed at thirty years in the penitentiary. • '
The evidence in this case is such as to cause a • regret that it should ever find a place among the records of this court. Certainly it is such that should not stain the published reports; For the purposes of this opinion, it is sufficient’ to say that the evidence discloses that on November 2, 1892, Frank T. Rose and his wife, Ellen Rose, came from their farm near Falling Springs in St. Clair county, Illinois, with a wagon load of produce consisting of vegetables, butter, eggs and honey. During the day they sold their produce and about five o’clock started for their, home, by way of the Cahokia ferry, their usual route. When they reached the ferry, they were informed by the ferryman that he would make no other trip that night.
While considering whether they should go up the river and cross the bridge, they were pursuaded by one Schweigeler, who kept a lodging house and saloon, to stay all night with him. His establishment was on the levee between Anna and Sidney streets, near the ferry landing. They put up their horse, had their supper, and after supper Mrs. Rose concluded that she would visit a relation of hers on Papin street, some distance up the city. Mr. Rose was suffering from rheumatism and the weather was cold, with a drizzling rain prevailing, and on this account did not accompany his wife. Mrs. Rose was then about fifty-eight years of age, the mother of six children. Leaving her husband, she went to Broadway, thence north until she reached the French Market. Here she was overtaken by the rain and took refuge in the Market near the junction [12]*12of Broadway and Chouteau avenue. On account of the rain, she abandoned her visit to her relative and after the rain started to return to her husband. She, however, stopped at a grocery store where she had had some dealings. It appears to. have been after eleven o’clock when she reached Anna street on her return. On Anna street she met or passed two police officers, Anton and Manger. Of these she inquired the way to Schweigeler’s and they directed her to go down Anna street to the river. When she had gone about two blocks east of Anna, after passing the officers, she was suddenly seized by two men and forcibly carried into a lumber yard and according to her evidence, cruelly outraged.
Her evidence is corroborated by Officer Anton, who, on his return to that vicinity of his beat that night, heard her groans. Being attracted thereby, he went into the lumber yard where he discovered this defendant on top of Mrs. Rose, 'and heard his obscene expressions. Immediately by him, only about four feet distant, sat his codefendant, Duffy. The officer.hurried to the spot and gave defendant two or three strong slaps with his club, and arrested both defendant and Duffy. He testifies that during all this time Mrs. Rose was groaning as if in great pain. Her clothing was covered with mud; her underclothing bloody and torn; her nose bleeding and bruised, and when she reached the police station there were marks showing' she had been choked severely. Mrs. Harris, the police matron, who saw Mrs. Rose during the forenoon of that day, (November 3) fully corroborated the facts as to her bruises and bloody condition and the mud on her clothing.
Defendant’s defense was very equivocal. Having been caught by the offieer and kept under arrest, he made no attempt to deny, that he and Duffy were with Mrs. Rose, but sought to make the impression that she [13]*13solicited them to receive these favors of her, unsolicited by them. When asked in chief by his counsel, if he ravished ■ her or if he had connection with .her, his answer was, “No sir, not then.” Later on he denied that he either raped her or had connection with her at all, voluntary or otherwise. He admitted, -however, that when the officer, Anton, appeared on the scene, he was lying by the side of the old lady, in the lumber yard, on the wet ground, in a misty rain.
It was also apart of the defense that Mrs. Rose was intoxicated that night. As to this, her husband swore she was perfectly sober when she left him to go up town. Both Anton and Manger, the officers, swore she was not drunk or at least had none of the signs of intoxication about her when she passed them about midnight, on Anna street. Mrs. Harris, the matron; says she had no appearance of having been drunk next morning. It was attempted to show by a saloon keeper and two or three other witnesses that about twelve o’clock that night she was in the saloon of one Menge; that while there she drank three glasses of beer and called for' the fourth which was refused her. Menge identified Mrs. Harris, the matron, as the woman who was in the saloon, but, as soon as he discovered that it was the matron, took it back. Mrs. Rose positively denies ever being in that saloon that night and the identification was exceedingly unsatisfactory.
The only explanation defendant gave of the compromising position in which he was caught by the officers was that the old lady had asked them to show her the way to the ferry and he and Duffy wanted to show her.
There was evidence that defendant had a- good character for sobriety, truth and veracity and morality in that neighborhood.
[14]*14I. The point made in this court that the criminal court erred in refusing a contiuuance cannot be considered by us, because no exception was saved to the refusal.
II. Among other things, appellant complains that the court refused to permit him-to ask Mrs. Rose “if the officer, Anton, did not induce her to come over to St. Louis and make this prosecution.” The court did exclude this question but defendant’s counsel immediately propounded this question: “Whatinducement, if any, did officer Anton make to you to induce you to come over here and make this prosecution?” This question the court permitted and she answered fully that, “he didn’t make any inducement.” The two questions are so similar that it is absolutely certain no harm did or could have accrued fróru the refusal of the first, when the second was permitted. State v. Sansone, 116 Mo. 1; State v. Smith, 114 Mo. 406.
III. It is also suggested as error that the court erred in permitting the prosecuting attorney to offer in evidence the bloody underclothing of the prosecuting witness, after having first fully identified them and accounted for their ■ keeping. The objection was not that these garments were not competent, but that their evidence “tvas not responsive to any examination made by counsel of defendant.” The objection was not good for the reason assigned or for any other legal reason. The clothing so identified was competent evidence tending to-show the injuries inflicted and to corroborate the other evidence on the part of the state.
IV. Nor was there any error in permitting Mrs. Harris, the matron, to testify as to the condition of Mrs. Rose as to bruises and the condition of her clothing next day. The examination disclosed that Mrs. Rose was outraged from one to two o’clock on the morning of November 3, 1892; and that she was taken [15]*15to the police station and kept there until noon and after of that day. Mrs, Harris testified she saw her during the forenoon of that day. Following so close upon the alleged crime, it was clearly relevant as one of the tests whether a rape had been committed at all. The bruises on her neck and face; the condition of her clothing, would indicate whether she had struggled to resist her ravishers.
Y. There is no merit whatever in the assignment that the criminal court erred in permitting; the prosecuting attorney to bring different ladies in the court room when Menge, the saloon keeper, and other men were undertaking to identify Mrs. Rose as a woman who had been in Menge’s saloon that night. It.was a legitimate test of their ability to identify Mrs. Rose, and the result demonstrated the readiness with which, identifications are made sometimes and how treacherous such evidence proves to be.
YI. It was a matter within the wise discretion of the criminal court to permit the prosecuting attorney to recall officer Anton to impeach a statement of the defendant as to the condition of his clothing and the. exhibition of his person when arrested. No new matter was brought out but a strict rebuttal of matter about which defendant had been fully examined. The order of testimony is a matter that must necessarily be left largely to the judgment of the trial courts, and, unless a clear case of abuse is shown, it is no ground for reversal.
YII. We perceive no error in- the court failing to instruct on the evidence as to good character of its own motion. No instruction on the subject was asked or suggested by the defendant or his counsel. His character was a fact to be submitted along with all the other evidence, but, in the absence of any instruction being asked, it was not reversible error fot the [16]*16court to omit to charge on that phase of the evidence. State v. McNamara, 100 Mo. 100; State v. Brooks, 92 Mo. 542.
VIII. Objection is made to instruction numbered 4, which is as follows:
“The court instructs the jury that, before they can find the defendant guilty of rape as charged, they must find from the evidence that he had sexual intercourse with Ellen Rose and used force upon her to accomplish it, and that she made such resistance as she was capable of to prevent it, and did not give her consent thereto, and whether or not that consent was or was not given may be inferred from all the facts and circumstances given in evidence.”
'The instruction was well enough. It-is hard to conceive of Mrs. Rose using more resistance than she was capable of using. The instructions taken together require the jury to find this offense was perpetrated by force, against her will, without her consent, and that she used all the resistance of which she was capable, and the law requires no more. It fully met the statutory definition and that is sufficient. State v. Miller 93 Mo. 263.
IX. There was no error in the fifth instruction, which told the jury that, although they might believe defendant was intoxicated at the time of the rape, yet, if the intoxication was voluntary on his part, it constituted no excuse, in the law, for the crime charged, if the jury found from the evidence that it was committed as charged. This has always been the law of this state and is yet.
It is finally suggested that there were many reasons argued before the criminal court why a new trial should have been granted, but that Judge Edmunds being a new judge, overruled them on account of his inexperience. Of course, it is not pretended any of [17]*17these reasons are in this record, and, inasmuch as his inexperience does not appear in any of the rulings he did make, we are bound to presume that he disposed of them with the same good judgment that characterized those of which we have cognizance, and his judg-
ment is affirmed.
Burgess, J., concurs; Sherwood, J., in all except the seventh paragraph, as to which he does not dissent, but will express his views in a separate opinion.
separate opinion.