State v. Drummins. the exact language of the prosecuting attorney ought to have been taken down and put bodily into the record, and that it is not sufficient for the purpose of review here to embody the language used in the objection made. We do not agree with this contention. We know from our own knowledge of the practice that nowhere is it the custom in all cases for the official stenographer to take down the entire arguments of counsel. That on the contrary it is the ordinary practice to take down only such parts thereof as are objected to, and it is obvious that the objection made must necessarily come subsequent in point of time to the utterance in the argument of the language to which objection is made. Here the whole matter occurred in open court, and within hearing of the trial judge, and of the prosecuting attorney, who is charged with having uttered the objectional language. If the trial court did not clearly understand the words used, he should have stopped the argument and made inquiry as to the truth of the objection and as to the correctness of the language said to have been used. If the prosecuting attorney was quoted incorrectly, he was present and could have disclaimed the charge of having made the objectionable statement. In the situation presented we must assume that the language which counsel for defendant said was used, was actually used, because, if it was not in fact so used, as charged, the meet and proper time for correction was at the moment of the making of the objection, or, at latest, when the bill of exceptions (from which we quote the excerpt) was settled and signed. But we are not left to reason a priori upon this question. It has been held in accordance with the view taken, that the manner here adopted of saving the objectionable argument for review was sufficient. [State v. James et al., 216 Mo. 1. c. 402.] In this case at the page cited it was said: "It is only necessary to say upon that question that in our opinion the improper remarks are suffiCounsel for the apciently preserved in the record. pellants made the objection and stated what the re State v. Drummins. marks were. The attorneys representing the State were present. They did not insist before the court that they did not make any such remarks; nor is it disclosed by the record that the court did not fully recognize that such remarks were made, for the court proceeds to rule upon the objections just as made, and in one of the objections it is said, "The objection is made to the statement of the prosecuting attorney saying' etc. That is a plain, clear statement that the prosecuting attorney made the remark in his address to the jury, and that they were made to the jury is sufficiently disclosed by the record, for the reason that the attorneys representing the State and the court fully recognized that they were made, but evidently felt that it was legitimate argument." It follows that the point was properly saved, and in our opinion the contention of reversible error is well taken. Impeaching Own Witness. V. Defendant put a witness on the stand and made inquiry of him as to specific acts of sexual intercourse of the witness with the prosecutrix. The witness swore that he had never had sexual intercourse with the prosecutrix. Thereupon defendant's counsel asked the witness whether the latter had not shortly before and outside the court-room told counsel that the witness had had intercourse with prosecutrix. The witness denied making such a statement. Counsel for defendant thereupon offered to prove that the witness had in fact so informed counsel, and that counsel had put the witness upon the stand in the belief in good faith that he would swear to the same facts upon the stand that he had related to counsel before he was sworn as a witness. The court refused to admit this testimony, and defendant contends that such refusal is error. The identical error is urged as to several other witnesses called by defendant, but the case of one of them will serve as a type for all of them. State v. Drummins. We think the contention must be disallowed. We held in the case of State v. Bowen, 263 Mo. 1. c. 280, that it is not sufficient to warrant a party who puts a witness on the stand, in impeaching such witness (by showing extra-judicial statements contradictory of the testimony of the witness upon the stand), that the witness merely fails, or refuses, to tell the facts which he had theretofore related extra-judicially, or fails to tell all of such facts, but, in order to warrant impeachment in the mode stated, the witness must go further, and by relating wholly contradictory facts, become in effect a witness for the adverse side. In the latter event, the party calling the witness is entitled to show that he was misled and entrapped by the witness's former words and attitude into calling the adverse witness. He is not so entitled, however, when the witness merely fails to relate facts which the party offering him had been led to believe he would relate. [State v. Bowen, supra; State v. Burks, 132 Mo. 1. c. 373; Clancy v. Transit Co., 192 Mo. 615; Beier v. Transit Co., 197 Mo. 215.] We think therefore that this contention must be disallowed. Proof of VI. Upon the trial defendant by his counsel admitted that he had had sexual intercourse with prosecutrix. Having conceded the above fact he objected to any and all testimony touching the birth of the child and the pregnancy of the prosecutrix. For much the same reason he objected to the State's evidence of a trip made by him and the prosecutrix to Mount Ayr, in the State of Iowa, where, according to the testimony of prosecutrix, they registered at a hotel and occupied for one night the same room. All of this occurred long subsequent to the seduction. It is obvious that, absent the admission of defendant by his counsel in open court of the fact of intercourse, evidence of the pregnancy of prosecutrix and the birth of the child would be admissible. This for the reason that such pregnancy would be proof indisputable that some man had had sexual State v. Drummins. intercourse with her. The birth of the child would likewise be competent in order to show the fact of intercourse and the approximate date of the specific act from which conception occurred, since such date bears an important relation here to the date at which the promise of marriage was made. Did this judicial confession of the fact of intercourse serve to render proof thereof and of the facts of pregnancy and birth of the child, reversible error? We think not. The manner of proof of these facts after the admission of the sexual relations lay thereafter within the discretion of the trial court, and it would seem impossible to bottom reversible error upon the manner in which the court exercised that discretion upon this trial. Another VII. What we say upon the point supra likewise applies, we think, to the objection to the State's evidence of the trip to Mount Ayr, Iowa, and to the things occurring thereon. To the latter testimony Orime. it was further urged in the objection that this evidence tended to prove the commission of another crime by defendant, and that for this reason it embodied an additional vice not in the first contention. (Referring, mayhap, to a violation of the socalled Federal "White Slave" Act). Absent the admission of sexual intercourse it is clear that this evidence was competent. For the reasons given for this trip tended to prove the intercourse alleged, as well as the promise of marriage, and the efforts made upon the trip to bring about an abortion tended also to prove intercourse and in a way the recognition by defendant of the paternity of the child. Being competent it was properly admitted, and the fact that the circumstances tended to prove the commission of a separate crime was merely defendant's misfortune, and does not in any wise militate against the admissibility of the evidence. For the rule is fairly well-settled that when evidence is admissible for any purpose, in the specific charge upon trial, such evidence will not be excluded merely because it may also tend to State v. Stewart. prove the commission of another crime. [State v. Banks, 258 Mo. 1. c. 493; State v. Gordon, 253 Mo. 510.] We are We are constrained to rule this contention against the defendant. For the errors noted let the case be reversed and remanded for a new trial consistent with what we have herein written. And it is so ordered. All concur. THE STATE v. W. E. STEWART, Appellant. Division Two, June 3, 1918. 1. INFORMATION: Oath. The verification of an information by the prosecuting attorney, that, "upon his oath, the facts stated in the information are true according to his best information and belief," complies with the statute (Sec. 5057, R. S. 1909) and is sufficient. 2. JURY: Summoning and Impaneling: Disqualifying Sheriff: Upon Oath of Prosecuting Attorney Alone. The act of the trial court, upon the application of the prosecuting attorney alone, alleging . prejudice on the part of the sheriff in favor of defendant in designating the coroner to select the venire and perform the duties of sheriff, and, upon formal objection by the defendant to the coroner, alleging prejudice against him, the appointing by the court of an elisor to summon the venire and perform the duties of sheriff, will not be interfered with upon appeal, unless it appears that it was arbitrary and unjust. Whether the trial court acts upon the unsupported affidavit of the prosecuting attorney, or requires proof of the prejudice of the sheriff, is left to his discretion. 3. -: Retaining Veniremen Selected by Sheriff Before Disqualification. The method prescribed by statute for summoning and impaneling jurors is directory; and if the elisor, after the disqualification of the sheriff and coroner, retained certain members of the trial panel summoned by the sheriff before he was disqualified, that fact is not error in the absence of a showing that such members were otherwise disqualified. 4. EVIDENCE: Telephone Call for Deceased. Under the circumstances of this case, it was not error to permit a witness for the State, who resided at the house where the deceased roomed, to testify that there was a telephone call for him a short time |